There has been a great deal of opining and sounding off recently among lawyers, professors, art historians, and art-related organizations as to whether the Foreign Cultural Exchange Judicial Immunity Clarification Act, otherwise known as Senate Bill 2212 (S.2212), should be passed into law. Currently stuck in the Senate Judiciary Committee, the fact that no decision has been made has seemed only to increase the agonizing among those concerned.

The bill, introduced to the 112^th Congress in its second session in March 2012, would amend the judicial code concerning property rights and the protections of objects of “cultural significance” that is imported into the United States for the purposes of “temporary exhibition or display.” The key to understanding this relatively brief bill (it consists of less than 500 words) is to examine the other sections of US law with which it interacts. The most notable instance of this is the Immunity from Judicial Seizure Statute, otherwise known as Section 2459 of Title 22 of the US Code (commonly referred to as 22 USC 2459). Under the jurisdiction of the State Department, 22 USC 2459 “protects from seizure or other judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition.”

The statute acts to guarantee foreign lenders (such as museums, private collections, educational institutions, etc.) that if they loan a cultural object to an institution within the United States, the lender is protected from any other claims of custody. That is to say, the object in question is protected by US law and granted immunity from seizure. The perceived benefit of 22 USC 2459 is that it encourages foreign lenders to send their cultural objects to the United States for exhibition, insofar as they can feel secure in the guarantee that the objects will be safely restored to their custody. This benefits museums and the American public in many obvious ways, and appeals to the “art as ambassador” argument that holds that the exchange of cultural objects supports cross-cultural understanding and cooperation. The problem, as many have pointed out, is that this protects objects that were obtained illicitly, whether by theft, looting, or illegal trade.

The proposed bill would act in accordance with the Immunity from Judicial Seizure Statute, but with one condition that has come to be known as the “Nazi exception.” The bill declares:

To summarize, the so-called Nazi exception allows for suits to be filed that are based upon claims that the work in question was illegally obtained by the Nazi government or any Nazi-affiliated government during what the bill would define as the “Nazi Era” (January 30, 1933 to May 8, 1945). In other words, victims of Nazi theft and their heirs ostensibly retain the right to file a claim against a foreign lending institution in order to obtain their object.

Upon first glance, this would seem to not only make sense, but also be beneficial to those victims of the Nazi-era and their heirs who are seeking restitution. As it turns out, this is where things become seriously problematic. Many, such as cultural heritage lawyer Rick St. Hilaire, believe that S.2212 sufficiently protects both claimants and lending institutions, reaffirming the US’s commitment to protecting the cultural objects of foreign lenders. St. Hilaire’s points about the need to reassure foreign lending institutions, thus encouraging further lending, are well taken, and are commonly expressed in the art world today. However, other figures in the cultural heritage protection community are not so sure. According to a post on the website of the organization Saving Antiquities for Everyone (SAFE), the bill “sends an awful message that is in complete opposition to the U.S. commitment to cultural protection and preservation.”

SAFE rightly points out that the bill does not protect antiquities that were illegally excavated and exported from their countries of origin. This might be overlooked if there wasn’t staggering evidence that illicitly obtained antiquities have permeated the licit art trade in large quantities (Part Two of this article will cover this aspect in more detail), such as the recent scandal that overtook the J. Paul Getty Museum.  

Another concern is one that strikes many as ethically questionable, as the bill seems to create a sort of hierarchy of atrocities. In a post by Catherine Sezgin on the Association for Research into Crimes Against Art’s blog, HARP co-founders Marc Masurovsky and Ori Z. Soltes both expressed concern that while the bill seemingly protects against Nazi-era claims, other instances of wartime looting are overlooked. Masurovsky further expressed his frustration in a New York Times piece, asking, “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?” Indeed, to say that losses sustained during the Second World War are the only ones worth protecting is not only ethically remiss, but also legally problematic.

Setting aside the concerns of many about the exclusive nature of the bill, one is forced to ask, how effective is the bill in protecting Holocaust-era victims and their heirs? The language of the bill allows for many loopholes and exclusions that would prevent those seeking restitution from successfully filing claims. Reading through the bill, the first and perhaps most consequential item of concern comes in section A of Paragraph 2: “[Judicial immunity] shall not apply in any case in which […] the action is based upon a claim that the work was taken in Europe in violation of international law […].” The problem here is that while many of the thefts committed by the Nazis and related bodies have been deemed in violation of international law, there remains a gray about which national governments cannot seem to reach an agreement: that of forced sales.

While the bill covers property confiscations and estate seizures, there remains the question of those objects that were sold under duress by those trying to flee Europe for fear of persecution. The history is clear on this account; many prominent Jewish business people, particularly art collectors, dealers, and gallerists, had to sell off their belongings and collections in order to garner the funds necessary to escape Nazi Germany, France, and other Axis-controlled countries. Additionally, this extends to those who were not involved in the art community. Many German Jews, for example, faced serious economic hardship due to forcible exclusion from participating in the local economy. As a result, they were forced to sell family heirlooms in order to raise money for leaving the country and to provide for themselves and their families.

One possible explanation for why the forced sales question is so difficult to pin down is that it is difficult to provide evidence for what constitutes a sale under duress versus a normal sale. Because of this perceived ambiguity in cases of forced sales, there is no unifying policy that would fall under the category of “international law” to protect the rights of claimants filing for restitution of objects lost to forced sales.

The other major red flag in the bill comes directly after the aforementioned clause: “[Judicial immunity] shall not apply in any case in which […] the action is based upon a claim that the work was taken in Europe in violation of international law by a covered government during the covered period […]” (emphasis added). Paragraph 3 provides the definitions of the covered governments and period:

The bill makes it very clear that it is targeting those affected by the Nazi or otherwise Axis-associated governments. This overlooks a key group of claimants: those whose possessions were taken by Allied military agents. The unfortunate truth is that while the Allies, specifically the US, were responsible for preserving many of the art objects looted by the Nazis and related organizations, so too were they responsible for thefts of their own. Many soldiers took home what they may have considered to be harmless keepsakes. Some scholars posit that Jewish soldiers took Judaica as an act of protest or anger. In any case, a vast number of art objects were poorly protected and were easily targeted. Due to the fact that S.2212 specifies that only those claimants who will be considered are those who were affected specifically by Axis governments, Allied-looted objects remain protected. Additionally, there is evidence that looting by Axis forces continued after May 8, 1945 as German troops were returning home (particularly from Italy). This further weakens the bill’s claim to protecting victims of World War II-era losses.

Though ostensibly well intentioned, S.2212 has obvious weaknesses and carries immense consequences for not only claimants but also the rest of the art community. Part Two of this piece will feature multiple voices who will chime in to help tease out those consequences. It will also examine more closely the antiquities market and how S.2212 will interact with it if passed into law, as well as the potential interaction of the bill with the State Department’s application system for judicial immunity for cultural objects. Among the most troubling of these consequences is the potential for obfuscation of provenance of art objects that are crossing US borders under the aegis of this bill.

In the meantime, if you find yourself in the D.C. area, there is a discussion that is scheduled to take place tomorrow, October 19, 2012, that will cover S.2212 and related legislation featuring Marc Masurovsky. He will give a lecture entitled “Art, Antiquities & War: Is Our Obsession to Possess Art Above the Law.” The lecture and discussion will also be covered in Part Two of the article. For more information and advance ticketing, visit the event page.’