Your Exhibition Will Be Canceled

Ingrid Wuerth writes on Lawfare about the Art Museum Amendment (aka The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJCA)), and how it may be retrograde of its intended consequence:

The Amendment means that activities associated with the loan of art works for exhibition are not “commercial activity” under this exception.

Other language provides that in order for the foreign state to be entitled to immunity under the Art Museum Amendment, it must be the owner or custodian of the art work at issue, and the President must have determined that the work is of cultural significance and that the temporary exhibition or display of such work is in the national interest pursuant to the Protection from Seizure Act (22 U.S.C. 2459(a)).

So?

Russia’s Amber Room, stolen by the Nazis.
Source: The Daily Mail

The Art Museum Amendment includes two exceptions which significantly undercut the protections afforded to foreign sovereigns, and the second of which may have ramifications beyond cases involving the loaning of art.   The first exception is for “Nazi-Era Claims.”  This exception (FCEJCA § 2(A)) to the Art Museum Amendment (which is itself an exception to the expropriation exception in FSIA), allows claims to go forward under the expropriation exception notwithstanding FCEJCA § 1 if they allege the work was taken in violation of international law by Germany (or a government of European territory occupied by German or any government that was a European ally of Germany) between 1933 and 1945.  The allegations in Malevich would not come within the Nazi-Era Claims Exception because the confiscation occurred in 1958, and thus that case would have been barred under the Art Museum Amendment. Many other potential cases could come within the Nazi-Era exception, however, because the Nazis and affiliated governments confiscated lots and lots of art.

The second exception (FCEJCA § (2)(B)) allows claims to go forward if they allege that the “work was taken in connection with the acts of a foreign government as part of a systematic campaign of coercive confiscation or misappropriation of works from members of a targeted and vulnerable group.”   This exception—not part of earlier versions of FCEJCA—is unclear in scope.

The Malevich case motivated this new law, “… which held that activity related to the loan of artwork to U.S. museums was “commercial activity” under FSIA § 1605(a)(3).” The Nazi-era Claims exception potentially covers, of course, a tremendous amount of art work, as the barbarians tried to dress themselves up in others’ good taste.

In any case, it’s hard to get worked up over the first exception, as it’s only justice to return the art work to the owners. In fact, in some ways this is easier to accept than the “cultural patrimony” problems of museums holding artifacts from other nations, which then lodge lawsuits against them for return of those artifacts, regardless of how they were acquired.