Doreen Carvajal of the New York Times this week addressed Senate Bill 2212, (the “Foreign Cultural Exchange Jurisdictional Immunity Clarification Act”) this week, a bill approved in March by the House of Representatives.
The article gives those most critical of the bill a chance to make their case. While well-intentioned, that criticism continues to miss what would, and what would not, actually change if the bill were passed, and highlight misperceptions of jurisdictional vs. substantive law. Another article on Monday highlights this problem by evoking the case of Martha Nierenberg, an heir to the Herzog collection. That collection is the subject of pending litigation, however, litigation that would not be affected by the proposed law because the changes would not apply retroactively.
The limited scope of the law would affect only one scenario: foreign, state-owned defendants who otherwise engage in no commercial activity in the United States other than the cultural loan of allegedly stolen artwork (commercial activity being one requirement to invoke the U.S. Courts' jurisdiction under the Foreign Sovereign Immunities Act, or FSIA). An exception even to that is made concerning art allegedly stolen by Nazis, about which the law would not change at all.
The law is simply not the license to import stolen art that critics imply, however. An example proves the point: a hypothetical national museum in Theftistan, a foreign country with no tourism industry or commercial activity in the U.S., has an ancient Greek sculpture to which an American (“Smith”) claims ownership as wrongfully taken by Theftistan government agents. The National Gallery of Theftistan plans to loan the sculpture to the American Museum. The American Museum, as a prudent loan organizer, obtains protection under the Immunity from Seizure Act (IFSA, 22 U.S.C. § 2459), as a result of which the sculpture is immune from seizure, for any purpose. As soon as the loan is made, Smith sues Theftistan and its National Gallery by invoking the FSIA, alleging a taking in violation of international law, and commercial activity in the U.S. satisfied by the making of the loan.
Assuming that Smith is 100% right and Theftistan is 100% wrong, however, under current law Smith can maintain her suit, even though she will never recover the sculpture itself, because it is immune from seizure. That is to say, if Smith wins a judgment that she is the rightful owner of the sculpture, the court cannot seize the sculpture; the FSIA gets her into court but does not mean that she will, or can, win. What is the point, then? The effort would have been a complete waste of everyone’s time and of the limited resources of the U.S. Courts, who would essentially be called upon to preside over a moral victory that would not cause a single artifact to change hands.
To listen to the law’s critics, Smith’s situation must be preserved so that she can sue in the U.S. The only change that SB 2212 would render is to spare everyone this fruitless exercise, however. Smith could sue Theftistan only if Theftistan has other commercial activity (although once again Smith will almost certainly not get the sculpture back even if she is right). And if the sculpture was stolen by Nazis, Smith can still sue Theftistan even if it has no commercial activity in theU.S.apart from the loan.
The view here is that the hyperbole surrounding the bill is misplaced. First, since the Portrait of Wally fiasco, a lender not obtaining IFSA immunity is unthinkable. The law will not make the U.S. a haven for stolen art—unless it already is one. Unless critics propose to repeal IFSA entirely and bring foreign loans into the United States to a halt forever, even the worst trafficker in stolen art would be no less at risk of being called to account under the proposed law. The law sensibly closes a gap in the law that does not help a single claimant; indeed, the law as it stands arguably offers claimants at best a false hope. Stolen art is a serious problem, but this bill will not immunize or endorse it.
Watch for coverage that evokes in opposition to the proposed law the recent return to Italy of Christ Carrying the Cross Dragged by a Rogue, which is not illustrative at all because that painting had no IFSA protection and it was seized for a customs violation, to which FSIA has no application. Citations to the Chabad Library/Russian dispute are instructive as well, because it shows just the limits of the current FSIA as a tool for restitution against resistant foreign governments. Even under the more expansive law, the Chabad plaintiffs are still struggling to get their artifacts in a case in which the defendant (Russia) literally stopped even participating. With that said, suggestions that the law would resolve the Russian loan embargo are probably also misplaced, because guarantees of immunity from seizure in the past have not improved that situation.
Our previous commentary on the bill can be found here and here.
