Revisiting Senate Bill 2212, Part Two

November 10, 2012

by Nikki Georgopulos, special to plundered art

As explored in Part One of this article, the so-called Nazi exception in Senate Bill 2212 (S.2212) has myriad weaknesses and loopholes through which claimants who identify as Holocaust victims and their heirs can be barred from bringing a case to court. The current language of the bill not only fails to provide sufficient protection for the people that it is ostensibly designed to protect, but is also misleading about the goals and motivations of the legislation’s sponsors.

In addition to the suspect nature of the bill’s protections regarding works taken within the Nazi era, the bill strictly precludes the possibility of ownership claims for all art objects that were stolen, looted, or otherwise illicitly obtained outside the Nazi era that cross over US borders.

Illegal excavation of antiquities and trade in illicit artwork has been a serious problem since well before the introduction of S.2212 in March of this year. Illegal trade is endemic, and has deeply permeated the legitimate art market. As both Saving Antiquities for Everyone (SAFE) and the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) point out on their websites, if passed, the bill would allow American museums and institutions to knowingly exhibit illicit artwork and antiquities without fear of litigation.

When questioned about the exclusivity of the bill, a Capitol Hill source familiar with the inner workings of the proposed legislation was notably unconcerned, stating that while the Senate Judiciary Committee (where S.2212 is currently trapped) is taking its time to perfect the language of the bill, they do not intend to “stretch the carve-out ” (referring to the “Nazi exception”) to include additional claimants. Indeed, the same source openly admitted that even “Holocaust-related concern is not at the heart of the bill.”

“This is not the Holocaust Victims Protection Bill,” the source asserted. “The purpose of this bill is to restore harmony between the Immunity from Judicial Seizure Statute and the Foreign Sovereign Immunities Act.” He went on to add that the “primary goal of S.2212 is to reverse one court decision. Congress wants to correct a misinterpretation of the Foreign Sovereign Immunities Act.” The source was referring to the 2007 US District Court decision that upheld the right of the heirs of Kazimir Malevich, the Russian abstract artist, to sue the City of Amsterdam to recover fourteen artworks that were in possession of the Stedelijk Museum. The Foreign Sovereign Immunities Act (FSIA) outlines the extent to which a foreign sovereign nation is protected from being sued in a US court. In Section 1605, which, enumerates the exceptions to the act, the FSIA indicates that a “foreign state shall not be immune from the courts of the United States […] in which rights in property taken in violation of international law are in issue.”

From the source’s perspective, this conflicts with the Immunity from Judicial Seizure Statue (also known as 22 USC 2459), which “protects from seizure or other judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition.” S.2212, therefore, has been designated a “clarification act” in order to amend the extent to which the rights guaranteed by FSIA can be exercised with regard to works of art and antiquities. Considering the current language of the bill and the widespread misperception regarding its altruistic intent, such revelations are troubling.

More troubling still are the weaknesses in importation standards and procedures, many of which belie the low priority that potential claimants are currently granted under US law.

As specified by 22 USC 2459, US institutions must submit an application to the US State Department at least six weeks before importing cultural objects in order to qualify for judicial immunity. According to the State Department website, the institution must submit a statement that asserts:

The applicant certifies that it has undertaken professional inquiry – including independent, multi-source research – into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership.

The first thing that is objectionable about this statement is that it suggests that provenance is important primarily because it establishes the national and cultural significance of the objects in question. That clean and complete provenance would assure that those objects were not obtained via the illicit market seems to be of secondary importance. As the signing of this statement is the only required protection against the importing of illicit art objects, it is clear that the State Department is not properly armed to prevent it. As Marilyn Henry wrote during the Malevich trail, “The State Department relies on an honor system, accepting a boilerplate statement that the provenance research has been done. It is not equipped to confirm that borrowers have undertaken research; it does not check for proof of provenance or conduct its own provenance research.”

Perhaps this would not be so much of a problem if the standards for provenance today were not already so devastatingly low. The unfortunate truth is that most American museums, even if their intentions are pure, do not have the resources to thoroughly research the provenance of every object in their collections, whether temporary or permanent. Indeed, a complete and flawless provenance is a very rare thing, and questionable histories are often overlooked for the sake of obtaining an object. Matthew Taylor, a UK-based architect and author of the Elginism blog, points out that objects with dubious histories continue to make their way into the global art market:

If you look at the antiquities trade today, there are still major problems with it – many items that [are] of poor provenance regularly turn up at auction – and furthermore, there are many more items that are known with certainty to have been looted at some point. In many of these cases though, the auction houses appear to shrug off the need for proper due diligence, in favour of selling the item anyway [and] taking their cut.

He goes on to highlight the important point that this issue of accepting unclear provenance is not limited to the auction houses: “The actions of art dealers such as Bob Hecht [and] Giacomo Medici are clear evidence of this less reputable side of the industry[, and] they are know to have had involvement with the sale of items to various US museums, particularly the Met in New York.”

Thus, the question must be asked – is the State Department asking enough of applicants? Is there a better system by which proper provenance could be established, perhaps by a third-party entity which has no stake in the outcome of the inquiry? In any case, it’s clear that US law does not sufficiently protect against the exhibition or sale of looted, stolen, or otherwise illicit art objects.

At an informal discussion and luncheon last week at Washington DC’s National Press Club led by Marc Masurovsky, the question of whether or not the State Department has the resources and wherewithal to monitor the import of cultural objects was one of many that were discussed. Organized by Keri Douglas of Nine Muses International, the October 19 discussion brought together participants from varied backgrounds and disciplines with equally diverse opinions. As Masurovsky describes, “The conversation was a first for most of the participants since it is rare that one can bring together around [the] same table both sides to a fiery and contentious debate such as art restitution and ethics in museums.”

That the issues on hand are both delicate and complex would seem to be the obvious explanation for why S.2212 is still stalled in the Senate Judiciary Committee. The aforementioned Capitol Hill source, however, reported that the Committee Chairman, Senator Patrick Leahy of Vermont, has yet to decide whether or not the bill merits a full hearing. According to the source, the committee is currently working to “perfect the language” of the legislation in order to “accomplish the narrow, specific goal of the bill,” namely, to “clarify [FSIA]” while avoiding “unintended consequences.”

American lawmakers, museum directors, and educators need to stand in staunch opposition to the illicit trade of art objects and antiquities. Both the LCCHP and SAFE are currently running campaigns related to S.2212—one to call for open hearingsand one to abandon the legislation completely. If passed into law, the “unintended consequences” of S.2212 would be to stymie the rights of would-be claimants, whether they are victims of the Nazi era and their heirs or not.