A recent story in The Art Newspaper spotlights a number of lingering issues related to stolen art, the power of U.S. courts to seize property to satisfy liability, and the role of the Immunity from Seizure Act, 22 U.S.C. § 2459 (IFSA). As we discussed recently, the prospect of a material change in U.S.-Cuba relations, which as a commercial matter haven’t existed for more than 50 years, has broad implications for the art market. Just as importantly, there are many, many unanswered questions about the fate of property in Cuba that changed hands or was nationalized as part of the Cuban Revolution in the late 1950s and onward. Simply put, there are thousands of claims worth billions of dollars for all sorts of property that exiles left behind or had taken from them. While it is still a long way off, one impact of potentially normalized relations is the prospect of sorting through those claims.

In this context art is no different than other property with regard to its ownership, but it differs in a critical way with regard to potential cultural exchange. Any object, no matter how clear the case for recovery, cannot be seized by a U.S. court if it has been brought into the country with a grant of immunity from seizure under IFSA. That does not mean that the owner cannot be sued, or even that the fact of the import may subject the owner to suit (something that has been the subject of proposed, but never enacted, legislation). But it does mean that the object itself will be allowed to come into the U.S. and then be removed, regardless of an ongoing dispute. For counter-examples, consider the Portrait of Wally affair, in which there was no immunity from seizure and the painting was held in the U.S. for more than ten years, and the Malevich case, in which the painting was immune from seizure but created the possibility for the plaintiffs to sue the City of Amsterdam under the Foreign Sovereign Immunities Act.

So what of all this now and Cuba? According to The Art Newspaper:

Another outstanding issue between Cuba and the US involves the claims made by US citizens for industrial, commercial and private property seized in Cuba after Castro came to power. According to some estimates, this property could be worth around $7bn. These claims now serve to block museum loans between the US and Cuba. The exhibition “Wifredo Lam: Imagining New Worlds” (14 February-24 May) at the High Museum, Atlanta, will show paintings and works on paper by the late Afro-Chinese-Cuban artist. The director and curator of the McMullen Museum at Boston College, the show’s initial venue, travelled to Havana to secure loans of works by Lam from the Museum of Fine Arts. The Havana museum agreed to send a group of pictures, but the loans were never made. The US State Department discouraged the Boston museum from applying for immunity from seizure for the pictures, citing Cuba’s status as a country that “supports international terrorism”. Even with immunity from seizure from the State Department, that stigma put the pictures at risk of being held to satisfy outstanding legal claims against US property seized by Cuba.

There is a lot going on here. Full disclosure, I graduated from Boston College Law School, but I have no other connection to the case. The involvement of the State Department is important, because it is that agency that decides whether to grant immunity. So it is certainly interesting that the State Department—which could simply say “no” to immunity from seizure if it chose—asked the museum not even to request immunity from seizure. The second major point relates to the ongoing (and going, and going…) exhibition loan boycott by Russia related to the judgment in the Chabad case. Even though any painting loaned from Cuba, if immune from seizure, would never be seized, the practical fact is that many countries simply do not believe it. The principle of judicial independence in the U.S., which is absolute, is simply hard for many people to believe.

In the meantime, no one is happy. The claimants for this painting are looking for a forum for their grievance, and an exhibition and museum goers don’t have the painting that would provide cultural enrichment. Clearly there is still work to be done.