Several overlapping issues in recent months have turned what was an awkward elephant in the room into a major issue facing the art world today. Namely: the increasing role that Russia is playing in restitution, loans and exhibition controversies has aggregated to Vladimir Putin an extraordinary amount of influence over these major international legal issues. Combined with the Edward Snowden controversy (and the bizarre story of Putin’s theft of Robert Kraft’s New England Patriots Super Bowl ring), it seems quite clear that Putin enjoys that spotlight. That has not proven to be good news for the art world.
As readers of the Art Law Report know, Russia has been embroiled for several years now in a complicated Foreign Sovereign Immunities Act case over title to the library of the Rebbe of the Chabad Lubavtich movement. I recently covered the history and pitfalls of this case in BNA Bloomberg legal. The case has laid bare, for better or for worse, the limitations of the FSIA as a restitution tool. If that were it, further comment would be unnecessary; there are plenty of scholars who view the FSIA’s expansive jurisdiction as problematic, and reasonable minds can and do disagree (keeping in mind that the law applies to and governs a vastly broader range of claims than wartime restitution). But the chief two problems with the Chabad case have been Russia’s retaliation in cancelling all international art loans, and in the very existence of such a dispute. Whatever the merits, it is simply not a good thing to have the United States and Russia engaged in such a public repudiation of the legitimacy of legal process. The rule of law is always less secure than it appears (“John Marshall has made his decision, now let him enforce it”), but appearances matter a great deal: if too many people are questioning whether courts and judgments even need to be obeyed, it is never a good thing. And so it is in the discourse between the U.S. and Russia right now. Russia loses a contested motion and literally announces it will no longer participate. A valid judgment enters, and Russia implies that it is a political one (insulting the independence of the judiciary) and will not be obeyed (insulting anyone who obeys Russian judgments). International law is always about mutual respect, often to degree that becomes uncomfortably apparent when the principle is challenged.
As if that weren’t enough, the sanctions that entered against Russia prompted a cartoonish response from diplomatic channels that one would have expected to be more sober, to say the least. Threats of retaliation, and the patronizing declaration by Putin that moving the Library to a Jewish museum answered the question, as though Orthodox Jews were interchangeable, have made a farce of the whole situation.
Recently, at its periodic status hearing, the U.S. judge who issued the judgment and the sanctions, reportedly referred to Russia’s as acting “like a scofflaw.” It can hardly be a coincidence, therefore, that Russia has moved to carry out one of its January threats, and sued the U.S. Library of Congress over an interlibrary loan many years ago involving a Chabad Lubavtich borrower. Again, the idea that this religious group is fungible is simply offensive. Yet in the face of all this the United States has yet to raise its voice, opting instead to ask that the court not sanction Russia. Yet to call a spade a spade with regard to Russia’s behavior. Just recently, the Department of Homeland Security, Immigration & Customs Enforcement (ICE) issued a press release about the return of historical documents to the Russian Federation. It is never the wrong time to do the right thing, but at this point Russia is going out of its way to embarrass the United States.
Lest there be any concern that this is a bilateral problem, recent disagreements between Russia and Germany underscore the staying power of the difficulty with Russia’s approach to these issues. The Red Army, it is well, known, looted incalculable artifacts in Eastern Europe and Germany in the closing days of the war. It did so unapologetically, citing the horrors inflicted on Soviet territory by the Wehrmacht, the Einsatzstab Reichsleiter Rosenberg, and a whole host of other Nazi agents. But as was well known even then, much of what was in Nazi hands in the close of the war was not theirs to begin with.
In any event, as with so many questions to do with the war, Germany’s position of contrition mooted the point for decades. Germany pointedly did not ask for sympathy or consideration in view of its culpability, and that was that. But as successive generations passed, many of those acceptances have been questioned, most notably about the bombings of Dresden, displaced persons, and the behavior of the Red Army. Those are not art law issues. But they exemplify what happened in June, when Chancellor Angela Merkel and Putin had a public disagreement over the extent event to discuss the return of art taken by the Red Army at the end of World War II. Long a taboo subject that Russia refuses to discuss, it is beyond serious debate that the Soviets (quite openly, in some cases), hauled various art back to Moscow as restitution for the incalculable damage caused to the Soviet Union and its citizens by the invasion by Germany. Merkel’s willingness even to broach the topic is a sea change in German domestic politics, but Putin’s response (or lack thereof) does not bode for much of an additional conversation.
That leaves the U.S. and Russia (a) not talking about the three-years running loan embargo; (b) not talking about Russia’s defiance of the Chabad judgment, all while (c) grappling with what to do with Edward Snowden—all while also refusing to talk about wartime restitution The outlook is not promising for the cooperative spirit essential to the art exhibition world and to international law.