The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (HR 4292) passed the House of Representatives yesterday, 388 to 4. Voting against were Reid Ribble (R, WI), Mark Sanford (R, SC), Marlin Stuzman (R, IN), and Justin Amash (R, MI). As discussed here previously, the bill would amend the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (FSIA) to clarify when a cultural object loaned with immunity from seizure pursuant to the Immunity from Seizure Act (IFSA) can also constitute the “commercial activity” element necessary to overcome sovereign immunity and bring a suit in U.S. federal court. Invocation of the FSIA has, since Altmann v. Republic of Austria up through the cases pending against Hungary and the Thyssen-Bornemisza Collection pending today, become the go-to strategy to seek federal jurisdiction over World War II/Nazi-looted art restitution cases in particular.
A subtext has arisen around criticism of the bill that it will encourage, or at least tolerate, the exhibition of stolen art. We must respectfully disagree with that view. The first reason is that if there is an objection to U.S. museums exhibiting art with questionable provenance or looting concerns, that objection should be targeted at IFSA, not this bill. Whether or not this becomes law, U.S. museums can today, just as they have for nearly fifty years, apply for immunity from seizure under 22 U.S.C. § 2459 for any object they intend to exhibit from abroad. That immunity is not guaranteed, and the State Department can turn it down. But once given, no matter the circumstances, the object cannot be seized while it is in the United States on loan. That larger program seems extremely unlikely to change.
It is therefore important to stress what this bill would, and would not, do. It would only strip federal jurisdiction over a certain kind of dispute: a foreign museum who has no commercial activity in the United States but for the exhibition of the object immunized from seizure—unless the work is also alleged to have been stolen by the Nazis, in which case the status quo would remain. As a recent article in Spring 2014 newsletter of the Art & Cultural Heritage Law Committee of the American Bar Association reminds us, that Malevicz v. City of Amsterdamscenario has actually never been repeated. That is, since the Malevicz case exposed an inconsistency in the interaction between the FSIA and IFSA that this law would address, not a single other case has survived dismissal merely because the defendant was subject to federal jurisdiction by virtue of an IFSA-immunized loan of the disputed object.
Thus, our view remains that while the bill is a sensible revision to an inconsistency in the law, its likely effect is overblown. The bill now goes to the Senate, where it languished for the better part of 2012 before expiring at the end of the session. Sponsorship and early action will probably determine whether the results will be the same this time.