Harmonizing the law to protect cultural diplomacy: the Foreign Cultural Exchange Jurisdictional Immunities Clarification Act.

Author:Behzadi, Emily
 
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  1. PREAMBLE II. INTRODUCTION III. BACKGROUND 1. THE FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA) 2. IMMUNITY FROM SEIZURE ACT (IFSA) 3. MALEVICZ V. CITY OF AMSTERDAM: INCONSISTENCIES BETWEEN FSIA AND IFSA 4. FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT IV. CULTURAL OBJECTS ON LOAN SHOULD NOT CONSTITUTE COMMERCIAL ACTIVITIES PURSUANT TO FSIA V. THE FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT WOULD EASE THE TENSION BETWEEN FSIA AND IFSA 1. A CLARIFICATION BILL WILL NARROWLY STRENGTHEN THE ABILITY OF MUSEUMS TO BORROW FOREIGN ART AND CULTURAL ARTIFACTS 2. THE PROPOSED BILL DOES NOT ENCOURAGE THE EXHIBITION OF STOLEN ART 3. FUTURE EXCHANGES ARE THREATENED BY THE DISCONNECT BETWEEN FSIA AND IFSA 4. THE HOLOCAUST ERA EXCEPTION IS APPROPRIATE VI. INTERNATIONAL CULTURAL COOPERATION FOR IMMUNITY FROM SUIT AND IMMUNITY FROM SEIZURE VII. CONCLUSION I. PREAMBLE

    Works of art are ageless testimonies to beauty that exist outside of time. Andre Malraux (1) once commented, "there are two kinds of art: that which belongs to the country of its origin and that which belongs to mankind." (2) It is understood that art objects can serve as cultural ambassadors, which function to enlighten the world of the unique cultures and heritage of other nations. (3) All over the world, people benefit from the opportunity to observe these cultural ambassadors on loan from foreign institutions. The United States has a particularly robust interest in facilitating these cultural exchanges. (4)

    Unfortunately, the provenance of many of these pieces is difficult to reconstruct. Voluminous ownership documents, particularly those produced before the 20th century, have been damaged or vanished as a result of wars, natural disasters, and thievery. (5) The illicit looting of antiquities has especially posed threats to international cultural heritage. As one can imagine, lawsuits over ownership emerge when a piece with questionable provenance shows up in an American museum. In furtherance of U.S. national interest in cultural exchanges, the State Department has regularly exerted its delegated authority to grant immunity from seizure for temporary foreign art loans.

    The results of these lawsuits have exposed inconsistencies in American foreign sovereign immunity law. This Article analyzes the legislation and litigation associated with the inherent deficiencies between the Foreign Sovereign Immunity Act and the Immunity from Seizure Act. To remedy these defects in the law, Congress introduced the Foreign Cultural Exchange Jurisdictional Immunities Clarification Act. This article further supports the proposed bill for the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act and ultimately concludes that Congress should enact like legislation in order to preserve cultural heritage loans.

  2. INTRODUCTION

    Previously on view at the J. Paul Getty Museum was a loan from the National Archaeological Museum in Athens of a stele honoring Prokleides, a military officer in the Athenian army. (6) At the National Gallery of Art was a loan from the Rijksmuseum and the Amsterdam Museum of two portraits from the Dutch Golden Age, "which have been rarely seen outside the Netherlands." (7) At the Metropolitan Museum of Art, were three ritual vessels from the fifth century BCE, on loan from Shanghai Museum. These pieces have "never before been exhibited together outside of China." (8) These aforementioned international loans are only some examples of how cultural exchange affords North Americans the ability to witness the world's most precious art close to home.

    The ability to acquire artwork on loan provides extraordinary educational and historical value to the recipient museum and nations. Immunity from seizure and suit facilitates the lending of cultural property for temporary exhibitions. The benefits of this cultural exchange are important to consider in weighing the interests of foreign states versus claimants seeking recovery. Museums provide audiences with the opportunity to discover less familiar cultures through the visual arts when engaging in these types of ubiquitous exchanges. Cultural exchange can reduce provincialism and ignorance by expanding an individual's education and historical experience. It can also enrich the viewer's life through aesthetic and intellectual stimulation. Likewise, it promotes scholarship in artistic, historical, psychological, and philosophical studies. Cultural exchange is also a mainstay for inspiration of future artistic works. Accordingly, it is important to maintain an enduring support system for this cultural exchange to preserve these vital interests.

    The value of cultural diplomacy (9) has been acknowledged by scholars, political leaders and the international community over time. In 1948, the United States (US) Congress enacted the Information and Educational Exchange Act of 1948 to "enable the Government of the United States to promote a better understanding of the United States in other countries and to increase mutual understanding between the people of the United States and the people of other countries." (10) In order to achieve these goals, the international exchange of persons, knowledge, and skills is imperative. (11) The lending and borrowing of famous artworks and antiquities are at the heart of these cultural exchanges. Museums and galleries are especially situated to provide the perfect setting for cultural exchange.

    When an American institution desires an exhibition or display of a cultural object from a foreign lender, it may petition the State Department for a grant of immunity under the Immunity From Seizure Act (IFSA). (12) This immunity protects a cultural object on temporary exhibition from being seized by law enforcement or other government authorities while the art is on display in the United States. (13) For forty years, this immunity provided foreign lenders with the security that loans of artwork, immunized by the State Department, would not serve as the basis for the jurisdiction in US courts. (14) Although IFSA lacks language of jurisdiction, countries seemingly have operated under the assumption that this immunity protected cultural objects not only from seizure, but also from judicial authorities exercising jurisdiction on a work's physical presence in the jurisdiction on temporary loan. (15) However, due to the development of exceptions to foreign sovereign immunity, particularly as codified in the Foreign Sovereign Immunities Act (FSIA) and recent federal court decisions, American museums' efforts at fostering international cultural exchange through temporary exhibitions have been impeded. (16)

    Recently, the lending of cultural objects across the United States "has been hindered and destabilized by a steep rise in third party claims." (17) As a result, future cultural exchanges may be seriously reduced by foreign lenders' reluctance to authorize their cultural objects to travel to the United States. In order to preserve the cultural exchange of foreign government-owned art, Congress must clarify the relationship between IFSA and FSIA by enacting a version of the 'Foreign Cultural Exchange Jurisdictional Immunity Clarification Act.'

    It is important to note the underlying premise of the causes of these actions in the United States. Around the world, looting and illicit import of antiquities have increased in an effort to raise funds for nefarious purposes. Countries have enacted legislation in an attempt to protect their cultural heritage and inhibit the export of certain types of objects. (18) However, these attempts do not halt the enduring black market of works circumventing legitimate international channels. Therefore, it is incumbent upon countries, such as the United States and Canada, to balance the interests of facilitating cultural art exchanges with the threat of further creating a medium for persons to evade liability.

    This article posits the importance of art loans for cultural exchange in the US. Part II provides context necessary to understand the inconsistencies in the law that hamper the cultural exchange program and a possible resolution to this problem. Part III argues that cultural objects should not constitute commercial activity as provided under the expropriation exception obtained in FSIA. Part IV concludes that Congress should enact the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act to allow institutions to easily import for display works of art from foreign lenders. Part V examines the reaction of the international community to immunity from seizure and jurisdiction.

  3. BACKGROUND

    1. The Foreign Sovereign Immunities Act (FSIA)

      FSIA is an American federal statute codifying the conditions under which foreign sovereign states, and their agencies and instrumentalities, may be sued in US courts. (19) FSIA is the sole ground for a United States court to obtain jurisdiction over foreign states. (20) In recent years, the application of FSIA has become a controversial issue, particularly with respect to cases involving efforts to recover cultural property taken from Holocaust-era victims. (21) The doctrine of sovereign immunity is especially important in international disputes over cultural property because "many of the objects at issue are in government-owned museums around the world." (22) As one court noted, "[o]ne would be hard-pressed to exaggerate the difficulty of interpreting the [FSIA]." (23) Sovereign immunity is extraordinarily difficult to analyze because it requires the balancing of the interest of "providing redress for citizens against the potentially adverse consequences that such suits may have on foreign relations." (24)

      If a foreign lender is not immune, federal district courts have exclusive jurisdiction over the action. (25) Thus, the question of immunity is a threshold issue and relates to the court's subject matter jurisdiction. FSIA sets forth the general proposition that a...

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