The U.S. Department of State Is Structurally Unable To Perform Appropriate Provenance Research On Immunity From Seizure Applications Submitted By Foreign Museums
by Marc Masurovsky and Pierre Ciric[1]
The Holocaust Art Restitution project (“HARP”) initiated research into the State Department’s ability to perform appropriate provenance research on immunity from judicial seizure requests submitted by foreign institutions. From the documents provided by the State Department through a Freedom of Information Act request, HARP analyzed: how the State Department verifies provenance research conducted by the borrowers and lenders for the object(s) under consideration; how the State Department verifies claims of due diligence made by both lenders and borrowers for objects under consideration for immunity from judicial seizure; and how the State Department awards determinations of “cultural significance” and “national interest”. HARP concludes that the immunization from judicial seizure application process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process the State Department follows to verify provenance research conducted by the borrowers and lenders. The State Department essentially relies on the good faith of both the borrowers and the lenders to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated.
INTRODUCTION
In 2014, the Holocaust Art Restitution Project (“HARP”) initiated research on the U.S. Department of State’s (“State Department”) ability to perform appropriate provenance research on immunity from seizure requests submitted by foreign museums the Immunity from Judicial Seizure statute, 22 U.S. § 2459 (IFSA). To accomplish this research, HARP submitted a Freedom of Information Act (FOIA) request to the State Department. Following the State Department’s response, HARP analyzed the State Department’s provenance research process and its procedures for determining the soundness of the borrowing institutions’ applications to immunize objects coming from foreign lenders’ collections.
STATUTORY AND ADMINISTRATIVE FRAMEWORK
The IFSA protects from seizure or other judicial process certain objects of cultural significance imported into the U.S. for temporary display or exhibition. The State Department is designated to administer the statute.
Under the statute, (1) the object must be a of cultural significance, (2) there must be an agreement between the lender and “one or more cultural or education institutions within the United States”, and (3) the loan must be for temporary exhibition in the U.S. at a cultural exhibition “administered, operated, or sponsored, without profit, by any such cultural or educational institution.”
The State Department provides an application procedure and checklist. Based on this checklist, the following items are to be included with an application:
1. A list of expected places and dates of exhibition;
2. A specific statement of whether or not “the exhibition is to be administered, operated or sponsored without profit to the borrowing or participating institutions”;
3. A schedule of the objects to be imported for which the applicant is requesting determinations under § 2459;
4. A scholarly statement establishing the cultural significance of the imported objects;
5. A statement concerning the provenance of works to be borrowed, as follows: “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 [except as described below. For the objects for which circumstances exist that would indicate the potential for competing claims of ownership, the following is a description of such circumstances and the likelihood any such claim would succeed].”
6. Facts supporting an assertion that all U.S. participants are cultural or educational institutions, such as an organization’s current IRC § 501(c)(3) determination letter;
7. A copy of each “agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition…” of the object(s), a copy of any agreements with participating museums or other U.S. cultural or educational institutions, and a copy of any agreements between a foreign owner and a foreign custodian;
8. Copies of all related commercial agreements between any or all of the U.S. institutions and the foreign owner/custodian or other parties; and
9. The contact person for the application, and his or her telephone number and e-mail address.
FOIA REQUEST
On March 5, 2013, HARP submitted a FOIA request to the State Department, seeking information on the provenance research process associated with documents “regarding any grants of Immunity from Seizure Under the Judicial Process of Cultural Objects Imported for Temporary Exhibition of Display under 22 USC § 2459.” The FOIA request further sought “records of the Bureau of Educational and Cultural affairs for any documentation, policy memoranda, and fact finding determinations for any final determinations by J. Adam Ereli, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State under the following authority by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. § 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. § 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236-3 of August 28, 2000 (and, as appropriate, Delegation of Authority No. 257 of April 15, 2003).”
The purpose of the FOIA request was to elucidate and clarify to what extent the State Department resorted to due diligence “best practices” in determining whether cultural objects about to be displayed in U.S. museums and libraries earned the “culturally significant” label in “the national interest.”
Key to this process is the State Department’s ability to conduct independent provenance research on objects being considered for immunity from judicial seizure, should a third-party claim arise demanding the restitution and/or repatriation of a presumed looted cultural object included in the submission for immunity from judicial seizure.
At the heart of the FOIA request lies HARP’s concern that the State Department is structurally ill-equipped to make such determinations and essentially relies on the word of both the borrower and the lender to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated without the consent of the rightful owners and without any subsequent restitution of the looted or misappropriated objects.
After negotiations, which lasted almost a year, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. As a result of the huge cost and time associated with producing documentation for each grant of immunity from seizure over a three-year period, the State Department and HARP reached an agreement in 2014 to obtain the submission of 12 immunity from seizure applications. On June 11, 2014, the State Department produced several hundred pages of documentation regarding the 12 immunity from judicial seizure procedures for cultural objects on loan to U.S. institutions from abroad. A list of the document received as part of the FOIA request is contained in Exhibit A.
DATA AND METHODOLOGY
HARP’s concern with the grants of immunity from seizure rests on the State Department’s ability to determine if, in fact, the art objects proposed for immunity from judicial seizure have ownership histories which do not suggest that the objects’ title might be challenged by an aggrieved party because the object had not been properly restituted to its rightful owner.
The State Department supplied to HARP documents for art objects loaned by foreign institutions to be displayed in various museums and other institutions in the U.S. Each grant of immunity from judicial seizure is provided to a borrowing institution requesting that the objects be immunized so as to enable their display in the U.S. without fear of seizure resulting from a third-party claim.
HARP wished to ascertain if the State Department had a procedure in place to verify independently from both the borrower and the lender the ownership history of each object being proposed for immunization. The lender provides information on the object to the borrowing institution. That information, in turn, is incorporated into the application for immunity from judicial seizure submitted by the borrowing institution. The latter certifies that it has conducted professional inquiry—independent, multi-source searches—into the ownership history of the objects under consideration for immunization.
FINDINGS
1. Volume of Applications
Provenance research is a complex procedure, as attested to by museum professionals, and takes significant time. In such a short period of time, it is virtually impossible to perform an independent assessment of whether the history of ownership of the objects being considered for immunity from judicial seizure is free from any disruption of title that might have been produced by an act of looting or misappropriation in the 19th and 20th centuries. More importantly, it would be next to impossible to assess, in that time period, whether these objects had been properly returned to their rightful owners before entering the lenders’ collections.
2. Documentation
Throughout the State Department’s response, each application for immunity from judicial seizure included at least the following types of documents:
1/ a copy of the notice of application in the Federal Register;
2/ a text of the public notice of application;
3/ a request from the borrower to the State Department to make a determination of “cultural significance” and that the exhibit is in the “national interest”. The request is in the form of a letter to the Assistant Legal Adviser for Public Diplomacy and Public Affairs. Each applicant has provided the same letter with some notable exceptions. It suggests that the “timely publication of these determinations [cultural significance and national interest] will facilitate the immunization of the objects under consideration from judicial seizure. The terms spelled out in 22 USC § 2459 must be fully satisfied in order to obtain the immunity from judicial seizure. In the case of Princeton University Art Museum, the application was submitted as “a courtesy” to the lender.
The application for immunity from judicial seizure is sent to ECA/PE/C/CU, which provides its clearance for “cultural significance.”
4/ a list of objects to be exhibited by the borrower. In some instances, both the borrower and the lender submitted a list of objects covered by the application for immunity from judicial seizure.
5/ correspondence by mail and/or email between the borrower and the State Department regarding the application for immunity from judicial seizure
6/ additional background about the proposed exhibit submitted by the borrower.
Following HARP’s FOIA request, it is impossible to assert whether or not the State Department submitted every document to HARP regarding each application for immunity from judicial seizure. The following are additional documents not present in every application which were submitted by the borrower to the State Department in support of the application for immunity from judicial seizure.
In two instances, the borrowers, the Frick Collection and the Museum Of Fine Arts, St. Petersburg, FL, submitted a “scholarly statement in support of the application for determination of cultural significance of the objects covered by the application for immunity from judicial seizure.
In one instance, the borrower, Metropolitan Museum of Art, submitted an “immunity file checklist” as part of the borrower’s application for immunity from judicial seizure. The checklist included eight different types of documents that constituted a complete application for immunity from judicial seizure:
1/ list of imported objects
2/ copies of agreements (borrowers/owners or custodians)
3/ copies of related commercial agreements
4/ places and dates of exhibition
5/ “without profit” statement
6/ statement as to provenance
7/ scholarly statement as to cultural significance
8/ U.S. participants are cultural/educational institutions (i.e., IRC 501(c)(3) letter)
In one instance, the borrower, the Milwaukee Art Museum, submitted a table of contents/checklist as part of the borrower’s application for immunity from judicial seizure.
In one instance, the borrower, Princeton University Art Museum, submitted a one-page statement attesting to the “cultural significance” for a single object covered by the application for immunity from seizure. The statement was signed by Dr. Bryan Just, curator and lecturer in the Art of Ancient America at the Princeton University Art Museum.
In one instance, the borrower, the University of Chicago Library, submitted a one-page “provenance statement” in support of its application for immunity from judicial seizure.
In reviewing this documentation, HARP assumed that there was a standard process for foreign lenders to apply for immunity from judicial seizure. We noted deviations from that standard which U.S. institutions supplied when we obtained the application check list of documents. We observed that, even in the application process, applicants used different strategies and the quality of the documents varied regarding the provenance information about the objects under consideration.
We also observed how the State Department handled the cultural significance and national interest determinations, even when the arguments proffered by some of the borrowers were specious regarding cultural significance and national interest.
Since the objects come from foreign lenders, one should presume that the borrower has requested from the lender documentation detailing the ownership history of the objects being proposed for immunization. There is no indication that such requests were made in the application we looked at. The provenance information provided by the lenders ranges from minimal to detailed. There is no possible way for the State Department to accept the borrower’s warranty of provenance without doing so on blind faith.
Missing documents are hinted at in correspondence between the borrower and the State Department. For instance, with respect to the application submitted by the Fine Arts Museum of San Francisco for an exhibition entitled “Impressionism on the water”, the Museum’s exhibition coordinator, Hilary Magowan, notified the State Department on April 26, 2013, that she was attaching to her email the loan agreements from nine foreign lenders to the exhibition. HARP received only the correspondence but not the loan agreements.
3. Provenance determination
The University of Chicago Library made no reference to having undertaken professional inquiry into the provenance of the objects, but emphasized that there was no evidence of any competing claim or past litigation that would challenge ownership to these objects being considered for immunity from judicial seizure.
The Museum of Fine Arts in Saint Petersburg, Florida, applied for immunity from judicial seizure for an exhibition of ancient Egyptian artifacts coming from the Fondation Gandur in Geneva, Switzerland. In submitting its application, it attested that it had undertaken professional inquiry “into the provenance of the objects.” The borrower provided only a descriptive list of the objects—101 in all—without indicating how, where, when and from whom Mr. Gandur had acquired these objects. It is difficult to imagine the Museum of Fine Arts conducting such intricate research on 101 objects in less than a year’s time.
The Frick Collection submitted a list of 58 objects from the Courtauld Gallery in London, England for its exhibit “Mantegna to Matisse: Master Drawings from the Courtauld Gallery. Each object contained a detailed provenance with an occasional reference to a certificate from the Art Loss Register for items that might have proven to be problematic.
The Fine Arts Museum of San Francisco submitted a list of over 100 objects that it planned to exhibit under the title “Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette”. It asserted that it had conducted professional inquiry into the provenance of the objects under consideration for immunity from judicial seizure. There again, it is impossible to ascertain how the research could have been conducted without requesting from the Louvre the curatorial files for each of the objects. No mention was made on how the independent, multi-source research was undertaken. Neither does the State Department ask for justification of this assertion. The Louvre inventory only provided the name and date of the donation or sale to the Louvre for the objects concerned, point of departure for any provenance research effort.
4. Research standards
Provenance research is an inter-disciplinary process that extends far beyond the reaches of conventional art history. At the very minimum, its purpose is to determine the history of an art object from the time of its creation to the present holder, be it a person, organization, corporation, museum, or government entity.
In the past twenty years, this type of research has become synonymous with ferreting out evidence of theft and other criminal acts which separated the rightful owner from the object’s possession without his/her consent. The responsibility of cultural institutions and art market players is to ensure that they do not engage in activities which enables the trade, accessioning, or display of stolen cultural assets.
When the State Department envisions the grant of immunity from judicial seizure, it warrants that provenance research did not indicate that the objects under consideration showed any sign of contested title due to theft or other forms of misappropriation.
To do so, an institution must check all available public and proprietary sources of information which might contain information that would shed light on past ownership of the concerned objects. Art historical sources need to be consulted to verify or corroborate the information provided by the lenders as to the ownership history of the objects. Sometimes, one would have to consult specialized monographs about the creators of the objects if the catalogues of the artist’s works do not include any or little information about the objects. Part of the provenance research effort requires one to understand the circumstances under which the object changed hands during turbulent historical moments that might have led to a forced displacement of the objects from a rightful owner to an illicit owner, due to an absence of consent for the transaction to take place. This can only be accomplished by checking historical sources of the period during which the objects changed hands.
If the objects are ancient artifacts, extracted during excavations in “source nations,” it is critical to verify that the excavations were authorized and the objects were exported legally to their new owners. Various documents can be used to confirm the extraction and the exportation of the objects. Customs documents, archaeological notes and dig registries, are some of the documents that might be available to do so.
The lenders’ documents on the objects need to be verified as well since they might contain crucial information about the ownership histories which are not published in the official literature surrounding these objects. This is fairly common in the museum world.
There is no evidence to show that neither the lenders nor the borrowers, in most instances, engaged in provenance research as outlined above. There is also no evidence that the State Department made any effort to verify independently that the information attested to by lenders and borrowers was true and accurate.
The borrower never explains how their research is conducted, which sources are consulted, and how it reaches the determination that all objects under consideration are clear of competing claims. The State Department seemingly relies on the certification provided by the borrowing institution without seeking some form of document explaining how those determinations were made.
5. The State Department has granted immunity in the face of existing claims
CONCLUSION
The due diligence checks on art objects borrowed from foreign lenders to be exhibited in U.S. institutions are left to the borrowers to conduct. Based on the documentation supplied to HARP by the State Department through the FOIA disclosure, each borrower used boiler-plate language—which is customary—to attest to independent, multi-source inquiries in conducting provenance research on objects to be covered by a grant of immunity from judicial seizure.
In most instances, some detailed provenance information was supplied by lenders (not borrowers) as part of the application for immunity from judicial seizure. However, in most instances, the borrowers relied on the certifications of good title from the lenders to certify that there was no information that it knew of that would raise doubts on the ownership of the objects being covered by the immunization from judicial seizure. HARP is highly skeptical of the claim by the borrowing institutions that they conducted professional inquiries, including independent, multi-source research to ascertain the provenance of the objects offered for exhibit by the foreign lending institutions.
Moreover, the determinations of cultural significance and national interest appear to be pro forma, and are not based on any empirical evidence. It is unclear how country desk officers at the State Department are qualified to determine whether art objects being loaned to U.S. institutions represent a “national interest.” HARP is unaware of the criteria used by country desk officers to make such determinations. In several instances, these determinations of cultural significance and national interest appeared to be connected to the uniqueness of the exhibits. First-time loans from foreign lenders to U.S. institutions was the most compelling argument. Therefore, the State Department accommodates borrowers and lenders and has no procedure in place to assess independently the quality of the applications and the veracity of the borrowers’ statements. It is unable to challenge the provenance information supplied by either or both parties.
Based on the information provided by the State Department through the FOIA disclosure, HARP concludes that the immunization from judicial seizure process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process in the granting of immunity from judicial seizure for art objects that allows HARP to conclude that the State Department is in a position to challenge the certifications made by the borrowers.
If the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 3155) becomes law, the systemic inability of the State Department to ensure that the applicant certification is properly supported or documented would create a significant risk for stolen artworks to come into the country through temporary exhibits.
EXHIBIT A
Documents Obtained through the FOIA Request from the State Department
Exhibit: Fine Arts Museum of San Francisco [Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette]
1/ federal register
2/ public notice
3/ additional background
5/ inventory supplied by the lender-Louvre Museum
6/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ correspondence between borrower and State
Exhibit: Frick Collection [Mantegna to Matisse: Drawings from the Courtauld Gallery]
2/ public notice
3/ additional background
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4a/ scholarly statement in support of application for a determination of cultural significance
5/ list of foreign loans and provenance
Exhibit: Museum of Fine Arts, St. Petersburg, FL [Ancient Egypt: Art and Magic: Treasures from the Foundation Gandur pour l’Art, Geneva, Switzerland]
1/ Federal register
2/ public notice
3/ revised request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ borrower press release
5/ checklist of objects
6/ initial request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ appendix checklist possibly supplied by borrower in spreadsheet fashion with photographs
8/ scholarly statement supplied by borrower in support of application for a determination of cultural significance
9/ correspondence between borrower and State
Exhibit: Metropolitan Museum of Art [Matisse: In search of true painting]
1/ correspondence between borrower and State
2 /press release by borrower
3/ federal register
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
5/ checklist of items with provenance supplied by borrower
6/ public notice
7/ additional background
8/ list of domestic-owned objects in the exhibit—no provenance given except the name of lending institutions
Exhibit: Metropolitan Museum of Art [Woman in Blue, Against blue water, by Edvard Munch]
1/ federal register
2/ public notice
3/ additional background
4/ immunity file checklist
5/application by borrower for immunity from judicial seizure with full provenance
Exhibit: University of Chicago Library [Swiss treasures: from biblical papyrus and parchment to Erasmus, Zwingli, Calvin and Barth]
1/ additional background
2/ provenance statement—more like a certification—submitted by the borrower
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ public notice
5/ checklist from multiple lenders containing statements of curatorial significance and history of ownership for each object
6/ federal register
Exhibit: Princeton University Art Museum [Dancing into Dreams: Maya Vases from the Ik’Kingdom]
1/ federal register
2/ public notice
3/ additional background
4/ cultural significance certification statement
5/correspondence between borrower and State
6/ exhibition checklist submitted by borrower
7/ request for immunity from seizure as “a courtesy” to the lender.
Exhibit: Fine Arts Museum of San Francisco/Peabody Essex Museum [Impressionists on the water]
1/ federal register
2/ public notice
3/ additional background
4/ checklist/schedule of exhibit items submitted by the borrower
5/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
6/ correspondence between borrower and State
7/ inventory/checklist contains deleted names of private collectors who loaned their works to the exhibit.
Exhibit: Milwaukee Art Museum [Impressionism: Masterworks on paper]
1/ federal register correspondence
2/ public notice
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ table of contents/checklist for applicant
5/ additional background
6/ schedule of works and their source/not provenance
Exhibit: Fine arts Museum of San Francisco [Girl with pearl earring: Dutch paintings from the Mauritshuis]
1/ correspondence
2/ request for cultural significance and national interest determinations
3/ certification of provenance included in its application for immunity
4/ federal register
5/ public notice
6/ additional background
[1] Marc Masurovsky is a historian, researcher, and advocate, specializing in the financial and economic underpinnings of the Holocaust and World War II. Marc holds a B.A. in Communications and Critical Cultural Studies from Antioch College and an M.A. in Modern European History from American University in Washington, DC. He worked at the Office of Special Investigations of the US Department of Justice researching Byelorussian war criminals. Marc advised the Senate Banking Committee in the mid-1990s on the involvement of Swiss banks in the Holocaust, and then lent his expertise to plaintiffs’ counsels suing Swiss banks on behalf of Holocaust survivors. Since 1997, Marc has focused his attention on the fate of objects of art looted by the Nazis and their Fascist allies, and was a founder of the Holocaust Art Restitution Project. He played a major role in the January 1998 seizure of Egon Schiele’s “Portrait of Wally” and “Night City III” at the Museum of Modern Art of New York and was a director of research for the Clinton-era Presidential Advisory Commission on Holocaust Assets in the United States (PCHA). Since 2004, Marc has overseen the creation, development and expansion of a public online database of art objects looted in German-occupied France that transited through the Jeu de Paume in Paris from 1940 to 1944.
Pierre Ciric is a founding partner of the Ciric Law Firm, PLLC, a boutique law firm specialized in commercial litigation services for businesses, nonprofit organizations and individuals, and in cultural heritage law. Pierre received his J.D. from New York Law School. Pierre represents French, American and European business and individual clients in the United States. Most notably, Pierre recently successfully settled a Nazi-looted art case representing the heirs of a French Jewish family seeking to obtain restitution of a Camille Pissarro painting from an American university. He also obtained restitution of an important “Judaica” religious object on behalf of an Eastern European Jewish community from an American collector. Pierre is a lawyer admitted to the New York Bar. He is the Vice President of the French American Bar Association, a member of the Professional Ethics Committee of the New York County Lawyers Association, and a Vice President of the New York Law School Alumni Association.
