Academic journal article Journal of International Law & International Relations

Harmonizing the Law to Protect Cultural Diplomacy: The Foreign Cultural Exchange Jurisdictional Immunities Clarification Act

Academic journal article Journal of International Law & International Relations

Harmonizing the Law to Protect Cultural Diplomacy: The Foreign Cultural Exchange Jurisdictional Immunities Clarification Act

Article excerpt

I. PREAMBLE II. INTRODUCTION III. BACKGROUND    1. THE FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA)    2. IMMUNITY FROM SEIZURE ACT (IFSA)    3. MALEVICZ V. CITY OF AMSTERDAM: INCONSISTENCIES BETWEEN FSIA AND       IFSA    4. FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION       ACT IV. CULTURAL OBJECTS ON LOAN SHOULD NOT CONSTITUTE COMMERCIAL    ACTIVITIES PURSUANT TO FSIA V. THE FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY    CLARIFICATION ACT WOULD EASE THE TENSION BETWEEN FSIA AND IFSA    1. A CLARIFICATION BILL WILL NARROWLY STRENGTHEN THE ABILITY OF       MUSEUMS TO BORROW FOREIGN ART AND CULTURAL ARTIFACTS    2. THE PROPOSED BILL DOES NOT ENCOURAGE THE EXHIBITION OF STOLEN       ART    3. FUTURE EXCHANGES ARE THREATENED BY THE DISCONNECT BETWEEN FSIA       AND IFSA    4. THE HOLOCAUST ERA EXCEPTION IS APPROPRIATE VI. INTERNATIONAL CULTURAL COOPERATION FOR IMMUNITY FROM SUIT AND    IMMUNITY FROM SEIZURE VII. CONCLUSION 

I. PREAMBLE

Works of art are ageless testimonies to beauty that exist outside of time. Andre Malraux (1) once commented, "there are two kinds of art: that which belongs to the country of its origin and that which belongs to mankind." (2) It is understood that art objects can serve as cultural ambassadors, which function to enlighten the world of the unique cultures and heritage of other nations. (3) All over the world, people benefit from the opportunity to observe these cultural ambassadors on loan from foreign institutions. The United States has a particularly robust interest in facilitating these cultural exchanges. (4)

Unfortunately, the provenance of many of these pieces is difficult to reconstruct. Voluminous ownership documents, particularly those produced before the 20th century, have been damaged or vanished as a result of wars, natural disasters, and thievery. (5) The illicit looting of antiquities has especially posed threats to international cultural heritage. As one can imagine, lawsuits over ownership emerge when a piece with questionable provenance shows up in an American museum. In furtherance of U.S. national interest in cultural exchanges, the State Department has regularly exerted its delegated authority to grant immunity from seizure for temporary foreign art loans.

The results of these lawsuits have exposed inconsistencies in American foreign sovereign immunity law. This Article analyzes the legislation and litigation associated with the inherent deficiencies between the Foreign Sovereign Immunity Act and the Immunity from Seizure Act. To remedy these defects in the law, Congress introduced the Foreign Cultural Exchange Jurisdictional Immunities Clarification Act. This article further supports the proposed bill for the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act and ultimately concludes that Congress should enact like legislation in order to preserve cultural heritage loans.

II. INTRODUCTION

Previously on view at the J. Paul Getty Museum was a loan from the National Archaeological Museum in Athens of a stele honoring Prokleides, a military officer in the Athenian army. (6) At the National Gallery of Art was a loan from the Rijksmuseum and the Amsterdam Museum of two portraits from the Dutch Golden Age, "which have been rarely seen outside the Netherlands." (7) At the Metropolitan Museum of Art, were three ritual vessels from the fifth century BCE, on loan from Shanghai Museum. These pieces have "never before been exhibited together outside of China." (8) These aforementioned international loans are only some examples of how cultural exchange affords North Americans the ability to witness the world's most precious art close to home.

The ability to acquire artwork on loan provides extraordinary educational and historical value to the recipient museum and nations. Immunity from seizure and suit facilitates the lending of cultural property for temporary exhibitions. The benefits of this cultural exchange are important to consider in weighing the interests of foreign states versus claimants seeking recovery. …

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