The House of Representatives approved the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act on March 19, 2012, to remove the display of a work of art in the United States as basis to sue a foreign sovereign here. The law touches on important distinctions between immunity from suit—when a party cannot be sued at all—from immunity from seizure—when a particular object or asset cannot be seized.
The bill would be an amendment to the Foreign Sovereign Immunities Act (FSIA). In the United States, foreign countries and their “instrumentalities”— entities that can include the government itself or, as applicable here, state run museums—are generally immune from suit when they are acting in a governmental capacity. The FSIA creates a number of exceptions to that general rule. As it relates to works of art, the FSIA has become a flash point for bringing restitution cases in the United States, even when the theft alleged occurred elsewhere.
To satisfy the FSIA however and get into U.S. federal court, the defendant must be engaged in a commercial activity and satisfy one of the law’s other requirements (art cases most often invoke the ever-more-broadly construed exempting from immunity takings in violation of international law).
At possible tension with this is the law providing immunity from seizure of certain cultural objects designated as such by the State Department under 22 U.S.C. § 2459. Museums and similar institutions can apply to the State Department for a declaration that regardless of any other debts or obligations on the part of the lending country, a particular work of art may not be seized or attached to satisfy a money judgment or otherwise compel compliance with a court order. Particularly since the Portrait of Wally case in 1998 (a painting that did not have such immunity from seizure and was seized and warehoused for 12 years until the dispute was settled), applying for this immunity is standard course.
Under the current law, however, even if a particular object cannot be seized because it is immune from such under 22 U.S.C. § 2459, the very act of lending it to the United States could provide the commercial activity to satisfy the FSIA, and thus provide the basis for that foreign government to be sued here (including, perhaps, being sued about the artwork that cannot be seized, to make things even more complicated).
The bill would provide an exception to these exceptions (and another exception to that, no less, see below). It would add a new provision to the FSIA itself, providing that the lending of an object given immunity from seizure under 22 U.S.C. § 2459 can not constitute the commercial activity necessary to satisfy the FSIA.
The bill makes good sense. There have been increasingly awkward cases of foreign governments’ refusal to lend objects to the United States, and the law would certainly give them added comfort. Admittedly, however, it is hard to think of a country with a lending collection that could not otherwise be found to be engaged in commercial activity here. And, importantly, Nazi-era claims—those clearly the most likely to be litigated—are exempted. In other words, lending a painting allegedly appropriated in Europe during the war could in and of itself constitute commercial activity in the U.S. and allow a lawsuit to proceed. Finally, it seems unlikely to resolve the impasse with Russia, because the law would not be retroactive.
The bill will reportedly now go to the Senate next week for consideration. No word yet on the reception that awaits. We will watch for developments.
