Land of the Free and Museums of the Stolen

Emily Santoro
Sunday, April 21, 2013

The United States is a country rich in history and diverse in backgrounds as a result of the many different individuals who come to call America “home.”  In addition to this unique culture within the United States, Americans crave an understanding of society outside its borders.  To satisfy this desire for experiencing art and civilization, American museums feature exhibits with artwork and artifacts from around the world.  In order for museum curators to create these exhibits, there is often a reliance on other countries to loan their artwork and cultural material. Unfortunately, in the art and archaeology sphere, ownership of works and objects are often contested publicly—e.g. the contention over Elgin’s Marbles—as well as situations where possession results from theft and plundering.  With this in mind, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (Immunity Clarification Act)[2] was introduced into the Senate during the previous congressional session, but thankfully died in committee.  This article will analyze and discuss how passage of this bill would have resulted in the United States becoming a country that endorsed unlawful possession of artwork and artifacts, thereby promoting unethical actions to both its own citizens and citizens of other countries.

Currently, a foreign state may be immune from suit under the Foreign Sovereignty Immunities Act (FSIA)[3] and the Immunity from Judicial Seizure Act (IJSA).[4]  In 2004, the Supreme Court expanded the reach of the FSIA by giving it retroactive application.[5] The IJSA further allows immunity from seizure and “other forms of judicial process that might have had the purpose or effect of depriving” the American museums of control of the artworks when on loan for public display.[6]  However, section 1605 of the FSIA sets forth exceptions to this jurisdictional immunity, one of which is illustrated in a case that implicated cultural property and sparked the introduction of the Immunity Clarification Act.  
In 2005, the heirs of the Russian artist Kazimir Malewicz sought the return of his artwork from the City of Amsterdam.[7]  The Solomon R. Guggenheim Museum in New York City received 14 of the 84 pieces of the Malewicz Collection for a temporary exhibit in 2003, followed by another exhibit in the Menil Collection in Houston, Texas.[8]  Upon this loan from Amsterdam, the city requested immunity from seizure under the IJSA.[9]   Two days prior to the Houston exhibit’s closing, Malewicz’s heirs filed suit.[10]  The district court held that although the artwork may be immune from seizure under the IJSA, the heirs could still file a lawsuit to recover damages against Amsterdam pursuant to FSIA.[11]  The court found that the situation fell under the FSIA “expropriation exception”[12] since the works were “present” in the United States at the time suit was filed, the loan of the works was a “commercial activity,” and the works had been taken in violation of international law.[13]  However, the court decided that the record needed to be developed because it did not indicate if the City had “substantial contacts with the United States” to bring it within FSIA jurisdiction.[14]
The Immunity Clarification Act introduced in the Senate on March 20, 2012, was an effort to clarify the “expatriation exception” and would have effectively overturned Malewicz v. City of Amsterdam by banning all legal actions that attempt the repatriation of artwork from public entities.[15]  The only exception to this would have been artwork that had been stolen by the Nazis or their agents during World War II.[16]
A number of concerns accompanied this bill.  Concerns included the speed with which it moved through the Legislature, as well as the single exception that is provided to Nazi-stolen artworks.[17]  Although there is no dispute over the horrible events that occurred during World War II and the right of ownership that Jewish families have to the stolen artwork, the fact that it was the only exception suggested that other wars and atrocities where artwork and artifacts were stolen were not as important and fail to deserve the exception.[18]  Although the message the exception conveyed can be construed positively and negatively, the best way to avoid this issue is to not endorse anyillegal possession of artwork and to prevent the known display of stolen works while refusing to acknowledge the rightful owner’s property rights.  Although the bill may have its benefits by inducing more countries to lend artwork, and, therefore, providing more education to Americans, the tradeoff of promoting plundering and theft to Americans and the rest of the world is too injurious.  
Presently, Russia has an embargo on loaning any material culture and art to the United States as a result of complicated ownership and repatriation issues that resulted from a collection being present in the United States.[19] Despite this embargo providing some issues for museums exhibiting Russian art, the threat of embargoes from other countries has yet to come to fruition.  Instead of using education as an excuse to allow the looted and unlawful possession of objects to be kept out of the reach of rightful owners, museums and exhibits should be required to be more diligent in provenience research when looking to acquire and accept loaned works.  As well, the United States should not bar victims of theft from reclaiming their possessions; it should cease to endorse plundering by allowing their display to the public.  Instead, the United States should be emulating the ideals of property rights established in its very own Constitution.[20]  Accordingly, the Immunity Clarification Act should not be given new life in subsequent congressional sessions.

[1] Emily Santoro is a May, 2014 J.D. Candidate and Staff Editor for the Rutgers Law Journal.
[2] S. 2212 112th Cong. (2012).
[3] 28 U.S.C.A. §§ 1602–1611 (West 2013).
[4] 22 U.S.C.A. § 2459 (West 2013).
[5] Republic of Austria v. Altmann, 541 U.S. 677, 697-99 (2004).
[6] Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 303 (D.D.C. 2005).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Malewicz, 362 F. Supp. 2d at 311-12.
[12] See 28 U.S.C.A. § 1605(a)(3).
[13] Malewicz, 362 F. Supp. 2d at 306-16.
[14] Id. at 315-16 (citing 28 U.S.C.A. § 1603(e)).
[15] Doreen Carvajal, Dispute Over Bill on Borrowed Art, N.Y. Times, May 21, 2012, at C1.
[16] Id.
[17] See id.see also United States Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, SAFE: Saving Antiquities for Everyone (April 18, 2012),; Catherine Sezgin, Senate Bill 2212: Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Aims to Prevent Seizures of Nazi-era Looted Paintings on Loan to American Museums, Ass’n for Research Into Crimes Against Art (March 30, 2012),
[18] See Carvajal, supra note 13, at C1.
[19] Sullivan & Worcester LLP Art & Museum Law Advisory, A Thaw in the Ice? The United States Signals Interest in Court Fight Affecting Sovereign Immunity, Potential Seizure of Cultural Property, and Exhibition Loans from Russia, Sullivan & Worcester (April 2011),
[20] See U.S. Const. amend. IV.