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Dispute over Senate bill S. 2212 over looted artefacts loaned to museums

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act [1] has stirred up quite a bit of controversy in the USA [2].

Many who have examined the bill (S. 2212) say that despite exemptions in the planned law, it is only really there to protect the interests of the big museums [3] – while reducing the chances of recovering looted artefacts by the original owners (or their descendants).

New York Times [4]

Dispute Over Bill on Borrowed Art
The heirs of Malevich sought to recover paintings, including the ones displayed above center and right.
Published: May 21, 2012

The lending and borrowing of famous artworks is the essence of cultural exchange between museums in the United States and abroad. So routine is the practice, and so universally valued, that the American government has traditionally protected it with a law that shields a lent work from being seized by anyone with a claim to legal ownership while the art is on display here.

In recent years, though, American museum directors have come to fear that this safeguard has eroded, and that foreign museums, dreading entanglement in costly ownership battles, are more hesitant to make loans. So they have asked Congress to increase the security for global art swaps.

But a nonpartisan effort to do so, which sailed through the House of Representatives on a voice vote in March, has slowed in the Senate amid an unexpected storm of protest from those who say it goes too far in blocking efforts by owners to recover looted treasures. The bill would prevent all claims, except those filed by families whose valuables were taken by the Nazis in World War II. But even they will find the process harder if the bill becomes law, opponents say. Other scholars and legal experts question why the Holocaust alone, among atrocities affecting ownership, is being afforded special treatment.

“This is a master attempt to put away all the legal claims,” said Marc Masurovsky, a historian and co-founder of the Holocaust Art Restitution Project. “How can you excuse 28 different kinds of plunder and only outlaw one subset of one subset? What is the point here? The only people who have anything to gain are the museum directors. So we’re basically saying it’s fine to plunder?”

The driving force in favor of the stronger legislation, known as the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, has indeed been the Association of Art Museum Directors. The organization is concerned that it is no longer enough for museums to arrange for a special waiver from the State Department to shield a work from seizure while it’s on loan for an exhibition in the United States.

In Paris, the International Council of Museums was initially in favor of the new legislation, but, given the criticism, is now encouraging “further consultation,” according to Julien Anfruns, director general of that organization, which offers mediation as an alternative to court.

The issue is particularly important in the United States because victims of looted art consider this country a legal refuge where they can press claims against powerful state institutions in Eastern Europe and Russia.

But concern on the part of American museum directors has grown since a federal court ruling in a 2005 case said that although the waivers can prevent outright seizures, they do not block claimants from filing lawsuits to recover artworks.

The ruling came in a lawsuit filed by the heirs of the abstract painter Kazimir Malevich, who sought to recover paintings from the Stedelijk in Amsterdam while they were on loan for an American exhibition. The Dutch museum believed its State Department waiver protected the works from seizure. But the judge ruled that the family could still sue.

The new bill, sponsored by Senators Dianne Feinstein, Democrat of California, and Orrin Hatch, Republican of Utah, would in effect overturn the judge’s decision and bar lawsuits, except those related to art looted by the Nazis or their agents. The bill would cover loans from the state-owned foreign museums like the Louvre or the Prado, but not private ones.

“If lenders perceive a potential risk, it can prevent artifacts from traveling and therefore potentially deny people in our community the opportunity to learn about cultures,” said Elizabeth Pierce, a spokeswoman for the Cincinnati Museum Center in Ohio, the home state of Representative Steve Chabot, who introduced the legislation in the House.

Russia, for example, has banned art loans to the United States, fearing that works could be seized because of a continuing legal battle in the United States with the Chabad-Lubavitch Hasidic movement over 40,000 books and manuscripts that are in Russian government possession. (To reduce tensions, the movement has promised not to sue, but the ban remains in place.)

In sponsoring the legislation, Senator Feinstein cited exhibitions in her state that “may have been endangered,” including one last year at the de Young Museum in San Francisco featuring loans from the Picasso Museum in Paris. A spokeswoman for the Picasso museum, Emilie Augier-Bernard, said she was not aware that anyone had raised claims regarding any of those works.

Despite the efforts to exempt Holocaust-era claims, the fiercest opposition to the bill has come from those who maintain that the exception is too narrowly drawn because it covers only people who lost art directly to the Nazis or their agents.

Experts say many Jewish families lost art, not directly to the Nazis, but because they were pressured to abandon it as they fled or had to sell pieces quickly for a fraction of their worth. Opponents of the bill, like the Conference on Jewish Material Claims Against Germany, a New York organization that seeks restitution for Jewish victims of Nazi persecution, contend that the bill would prevent even these heirs from suing. Some opponents said that they believed that the bill was fast-tracked without a hearing in the House not because Congressional officials did not anticipate opposition, but because museums wanted to be discreet about pushing legislation that would block people from reclaiming looted art.

“Clearly, this is an effort to get the bill passed in the middle of the night,” said Charles Goldstein, a New York lawyer for the Commission for Art Recovery, which works on Holocaust restitution cases. Mr. Chabot’s office said the bill moved swiftly because support was bipartisan and because there was no opposition at the time of the House vote.

Dan Monroe, president of the Association of Art Museum Directors, defended the legislation’s special handling of art looted by the Nazis, as opposed to works that might have been taken during, say, the Cambodian civil war or the Bolshevik Revolution. He described the Holocaust as “so massive and egregious that there are few if any other situations that rise to the same level of injustice.”

“To assure the ability to present art and culture to the American public from sources around the world,” he continued, “there are some inherent limits to how museums can act to redress all possible injustices.”

But others are uneasy about granting special treatment.

Derek Fincham, an assistant professor at South Texas College of Law in Houston who specializes in cultural heritage law, said the exclusion probably also reflected the notion that the bill would be difficult to pass without an exception for Holocaust-era claims.

“To put it bluntly, how many Cambodians donate to political campaigns?” he said. “All of this goes back to political influence on a money level, which is unfortunate.”

Corinne Hershkovitch, a lawyer in Paris who specializes in recovering plundered art, said she questioned whether a bill that tried to distinguish between the severity of atrocities was sound. “There should be a common system for all looted art,” she said. “If you offer protections just for one group, it will seem illegitimate.”

Allan Gerson, a specialist in international law who has a client trying to recover paintings seized by the Bolsheviks, agreed. “Why are Nazi storm troopers looting art any different from Bolshevik storm troopers?” he said.

In California in 2009, a federal appeals court struck down a state law that sought to extend the statute of limitations in lawsuits filed there against museums and galleries by people who had art taken from them during the Holocaust. The ruling did not focus on the special nature of the protection, but on constitutional flaws in the statute. When California enacted amended legislation in 2010, it covered artworks lost in all periods.

Jo Backer Laird, a lawyer who specializes in art law, said the pending Senate bill was founded on the view “that the Holocaust is simply different.”

“It is a view,” she continued, “that has a compelling philosophical and moral basis — but one that may be more difficult to justify and implement as a matter of law.”