Is it time to invoke the Corollary to Godwin’s Law of Nazi Analogies (i.e., as a discussion grows longer, the probability of a comparison involving Nazis or Hitler increases, and once this occurs, that thread is over, and whoever mentioned the Nazis has automatically the argument ) concerning Senate Bill 2212, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act?
David Maxon of WNYC, via Morning Edition on National Public Radio posted a story focused on the increasingly vocal chorus of critics of Senate Bill 2212, using as the story’s focus a Holocaust victim whose claims would not be affected by the law in any way, shape or form. The audio can be heard here.
The reporting overall on the bill remains disappointing. The lede of today's article suggests to listeners that the bill “could make it even harder [] for families to reclaim stolen art.” Even the link on NPR is entitled “Legislation Could Thwart Return of Holocaust Art.” The current interplay between the Foreign Sovereign Immunities Act and the Immunity from Seizure Act—an interplay that is the entire reason for the bill, was once again not even mentioned.
To review briefly: the law would affect only foreign, state-owned defendants who otherwise engage in no commercial activity in the United States other than the cultural loan of allegedly stolen artwork. To rely on the Foreign Sovereign Immunities Act, a claimant must show both that the object was taken in violation of international law and that the defendant engages in commercial activity in the U.S. In 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. Under the current law, 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 can 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). That is just to get into U.S. Court. It has nothing to do with the merits of the actual claim.
The law is not an invitation to import anything that cannot be loaned today. It is not retroactive (leaving the victim quoted in the piece unaffected). It explicitly exempts art allegedly stolen by Nazis (Ibid). It is unrelated to, and would not solve the loan embargo impasse with Russia, which did not loan the Chabad/Schneerson library in the United States and thus will not be mollified by removing the loan of such works as a basis for jurisdiction.
Dan Monroe (president of the Peabody Essex Museum) was quoted briefly on behalf of the Association of Art Museum Directors, advocates for the law, but not given the chance to distinguish the actual reach of the law.
If coverage continues like this, the bill could be in real trouble. From here, that would be a missed opportunity to clarify a gap in the law that serves little purpose.
