[Congressional Record Volume 158, Number 45 (Monday, March 19, 2012)]
[House]
[Pages H1370-H1372]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT
Mr. SMITH of Texas. Madam Speaker, I move to suspend the rules and
pass the bill (H.R. 4086) to amend chapter 97 of title 28, United
States Code, to clarify the exception to foreign sovereign immunity set
forth in section 1605(a)(3) of such title, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4086
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Foreign Cultural Exchange
Jurisdictional Immunity Clarification Act''.
SEC. 2. CLARIFICATION OF JURISDICTIONAL IMMUNITY OF FOREIGN
STATES.
(a) In General.--Section 1605 of title 28, United States
Code, is amended by adding at the end the following:
``(h) Jurisdictional Immunity for Certain Art Exhibition
Activities.--
``(1) In general.--If--
``(A) a work is imported into the United States from any
foreign country pursuant to an agreement that provides for
the temporary exhibition or display of such work entered into
between a foreign state that it is the owner or custodian of
such work and the United States or one or more cultural or
educational institutions within the United States,
``(B) the President, or the President's designee, has
determined, in accordance with Public Law 89 259 (22 U.S.C.
2459), that such work is of cultural significance and the
temporary exhibition or display of such work is in the
national interest;, and
``(C) the notice thereof has been published in accordance
with subsection (a) of Public Law 89 259,
any activity in the United States of such foreign state, or
of any carrier, that is associated with the temporary
exhibition or display of such work shall not be considered to
be commercial activity by such foreign state for purposes of
subsection (a)(3) of this section.
``(2) Nazi-era claims.--Paragraph (1) shall not apply in
any case in which--
``(A) 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;
``(B) the court determines that the activity associated
with the exhibition or display is commercial activity, as
that term is defined in section 1603(d) of this title; and
``(C) such determination is necessary for the court to
exercise jurisdiction over the foreign state under subsection
(a)(3) of this section.
``(3) Definitions.--For purposes of this subsection--
``(A) the term `work' means a work of art or other object
of cultural significance;
``(B) the term `covered government' means--
``(i) the Nazi government of Germany;
``(ii) any government in any area occupied by the military
forces of the Nazi government of Germany;
``(iii) any government established with the assistance or
cooperation of the Nazi government of Germany; and
``(iv) any government that was an ally of the Nazi
government of Germany during the covered period; and
``(C) the term `covered period' means the period beginning
on January 30, 1933, and ending on May 8, 1945.''.
(b) Effective Date.--The amendment made by this section
shall apply to any civil action commenced on or after the
date of the enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas (Mr. Smith) and the gentleman from California (Mr. Berman) each
will control 20 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. SMITH of Texas. Madam Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous materials on H.R. 4086 currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may
consume.
I want to thank the gentleman from Ohio (Mr. Chabot), a leader on the
Judiciary Committee, for introducing this legislation. I also want to
thank Mr. Conyers and Mr. Cohen for their support as well.
This bill preserves the ability of U.S. museums and educational
institutions to continue to borrow foreign government-owned artwork and
artifacts for temporary exhibition or display. The
[[Page H1371]]
United States has long recognized the importance of encouraging a
cultural exchange of ideas through exhibitions of artwork loaned from
abroad. Cultural exchanges produce substantial benefits to the
educational and cultural development of all Americans. The future
success of these exchanges depends on foreign lenders having confidence
that loaning artwork to U.S. institutions will not open them up to
lawsuits in U.S. courts.
For 40 years, the Immunity from Seizure Act provided foreign
government lenders with this confidence. However, rulings in several
recent Federal cases have caused that confidence to unravel. In these
decisions, the courts have determined that the Immunity from Seizure
Act does not preempt the Foreign Sovereign Immunities Act, which
provides U.S. courts with jurisdiction in cases against foreign
countries.
The effect has been to open foreign governments up to the
jurisdiction of U.S. courts simply because they loaned artwork to an
American museum or educational institution. This has seriously
threatened the ability of U.S. institutions to borrow foreign
government-owned artwork. It has also resulted in cultural exchanges
being curtailed as foreign government lenders have become hesitant to
permit their artwork to travel to the United States.
The bill addresses this situation. It provides that if artwork is
granted immunity by the State Department under the Immunity from
Seizure Act, then the loan of that artwork cannot subject a foreign
government to the jurisdiction of U.S. courts under the Foreign
Sovereign Immunities Act.
This is very narrow legislation. It only applies to one of the many
grounds of jurisdiction under the Foreign Sovereign Immunities Act. It
requires the State Department to grant the artwork immunity under the
Immunity from Seizure Act before the provisions of the bill apply. And
in order to preserve the claims of victims of the Nazi government and
its allies during World War II, the bill has an exception for claims
brought by these victims.
If we want to encourage foreign governments to continue to lend
artwork to American museums and educational institutions, we must enact
this legislation. Without the protections this bill provides, rather
than lending artwork to U.S. institutions, foreign governments will
simply deny American loan requests. So I urge my colleagues to support
this bill.
Madam Speaker, at this time I yield 2 minutes to the gentleman from
Ohio (Mr. Chabot), who is the author of this legislation and an active
member of the Judiciary Committee.
Mr. CHABOT. I would like to thank my colleague, the distinguished
chairman of the Judiciary Committee (Mr. Smith of Texas) for yielding
the time. He explained it much better than I can, but I'll take a stab
at it myself.
H.R. 4086 is really a straightforward bill which would better clarify
the relationship between the Immunity from Seizure Act and the Foreign
Sovereign Immunities Act. Since 1965, the Immunity from Seizure Act has
provided the executive branch with authority to grant foreign artwork
and other objects of cultural significance immunity from seizure by
U.S. courts. The purpose of this was to encourage loaning and sharing
exhibitions between U.S. and foreign museums.
However, there is now a conflict between the Immunity from Seizure
Act and the Foreign Sovereign Immunities Act that has interrupted this
friendly exchange. Essentially, a provision of the Foreign Sovereign
Immunities Act allows U.S. courts to have jurisdiction over foreign
governments when their artwork is temporarily imported into the U.S.,
putting foreign artwork and artifacts at risk of seizure.
{time} 1710
Unfortunately, this has led, in many instances, to foreign
governments declining to import into our country artwork and cultural
objects for temporary exhibitions. In order to maintain the exchange of
government-owned artwork and artifacts, Congress should clarify the
relationship between these two acts in question.
This bill would do just that, ensuring that American museums like the
Cincinnati Museum Center and the Cincinnati Art Museum, two in my
district, can continue to enjoy international artwork and cultural
artifacts. Enacting this legislation will remove a major obstacle to
foreign loans and exchanges to American museums.
I urge my colleagues to support H.R. 4086, and I would also thank the
gentleman from California (Mr. Berman) and the gentleman from Michigan
(Mr. Conyers) for their leadership and their support in this effort.
Mr. SMITH of Texas. Madam Speaker, we have no other speakers on this
side, and I yield back the balance of my time.
Mr. BERMAN. Madam Speaker, I rise in strong support of the bill, and
I yield myself such time as I may consume.
(Mr. BERMAN asked and was given permission to revise and extend his
remarks.)
Mr. BERMAN. Madam Speaker, this bill arises from a tension between a
1963 statute providing foreign art collectors immunity from seizure and
the Foreign Sovereign Immunities Act. It specifically stems from a 2007
court decision that broadened the expropriation exemption under the
FSIA and allowed for suits on artwork already immunized under the 1963
law. The Los Angeles County Museum of Art and other museums have made
clear to me the chilling effect of that decision on artistic exchanges.
This bill resolves the inconsistency between the Foreign Sovereign
Immunities Act and the 1963 statute and protects critical cultural
exchanges. Specifically, the bill would clarify that foreign states are
immune from lawsuits that seek damages for artwork that may already be
immune from seizure pursuant to a Presidential determination.
I support this bill for several reasons:
First, cultural and artistic exchanges are a powerful form of
democracy that foster mutual understanding, and this bill would remove
obstacles to such exchanges;
Second, the bill is narrowly crafted. It provides sovereign immunity
only in cases in which the President already immunized the artwork in
question;
Third, H.R. 4086 includes an exception for Nazi-era claims. This
carve-out is consistent with longstanding American policy to seek
restitution when possible for victims of the Nazi government, its
allied governments and its affiliated governments.
I urge my colleagues to support the bill, and I yield back the
balance of my time.
Mr. CONYERS. Madam Speaker, I strongly support H.R. 4086, the
``Foreign Cultural Exchange Jurisdictional Immunity Clarification
Act,'' as amended. This is a bipartisan bill that the Judiciary
Committee ordered favorably reported by voice vote.
This bill contains a narrowly tailored fix to the expropriation
exception of the Foreign Sovereign Immunities Act of 1976 that would
clarify that the exception is not available in cases where:
artwork or a cultural object is imported into the United States for
temporary exhibit or display pursuant to an agreement between a foreign
state that owns or has custody of the work and a U.S. cultural or
educational institution;
the work has been granted immunity from seizure by the President
pursuant to the Immunity from Seizure Act because it is of cultural
significance and its temporary exhibit or display is in the national
interest; and
the President's determination has been published pursuant to IFSA.
The bill also clarifies that its provisions do not apply to Nazi-era
claims regarding the ownership of art or cultural objects.
In short, this bill immunizes foreign states from lawsuits that seek
damages for artwork that is already immune from seizure pursuant to a
Presidential determination when the work is in the U.S. for temporary
exhibition.
I am an original cosponsor of this bill for several reasons.
First, H.R. 4086 will make the FSIA consistent with the purpose
underlying the Immunity from Seizure Act.
The IFSA was intended to encourage foreign states to lend their
artwork and other cultural property to American museums and educational
institutions for the cultural and educational benefit of the American
people.
We enacted the IFSA in 1965 at the height of the Cold War to immunize
certain artwork owned by the Soviet Union so that the Soviets would
lend the artwork to the University of Richmond for a temporary exhibit.
We recognized then, and continue to recognize now, that as a general
matter, the benefits of the cultural exchange fostered by temporary
exhibits or displays of artwork outweigh the provision of a U.S. forum
for disputes about the ownership of cultural property that is held by a
foreign government.
[[Page H1372]]
The benefits of cultural exchange include an increased understanding
of and appreciation for foreign cultures, a decrease in xenophobia and
prejudice, and perhaps even some diplomatic benefit in fostering mutual
respect between our Nation and other nations.
IFSA worked well for 40 years. Unfortunately, the court's decision in
Malewicz [MA-le-vich] v. City of Amsterdam broadened the scope of the
FSIA's expropriation exception to the point where it undermined IFSA.
The court construed the term ``commercial activity'' as used in the
FSIA to include the temporary exhibit of artwork in the United States.
This triggered the expropriation exception to sovereign immunity even
though the works at issue in Malewicz had been immunized from seizure
by the President.
The Malewicz case has had a chilling effect on loans of cultural
property from foreign states.
According to a letter urging my support for this bill that I received
from Graham W.J. Beal, Director of the Detroit Institute of Arts, both
the Russian and Czech governments are refusing to lend works of art to
American museums in the wake of this court decision.
Additionally, the Metropolitan Museum of Art withdrew a loan request
to a Middle Eastern museum out of fear that once the works were in the
U.S., their presence would be used as grounds for a lawsuit.
H.R. 4086 resolves the inconsistency between the IFSA and the FSIA
created by the Malewicz decision by ensuring that any work that the
President has immunized from seizure pursuant to IFSA will also
immunize the foreign government owner of that work from a suit for
damages under FSIA.
Second, the sovereign immunity provided for under this bill is
limited to a very specific set of circumstances.
H.R. 4086 does not cover every possible claim concerning the
ownership of artwork owned by a foreign government. For instance, the
expropriation exception could be available for any claim concerning
works that have not received immunity from seizure under IFSA.
Similarly, the expropriation exception remains available for a work
that is not in the United States on temporary exhibit or display
pursuant to an agreement.
Additionally, H.R. 4086 leaves untouched the other exceptions to
sovereign immunity provided for in the FSIA, including the general
``commercial activity'' exception.
Third, I can support H.R. 4086 because it makes an exception for
Nazi-era claims.
This carve-out is consistent with longstanding American policy to
seek restitution when possible for victims of the Nazi government, its
allied governments, and its affiliated governments.
In light of the unique historical sensitivities surrounding the Nazi
government's deliberate campaign to steal artwork from its victims,
H.R. 4086 rightfully ensures that victims of the Nazis are not
foreclosed from pursuing damages for stolen art, even at the cost of
foreclosing cultural exchange.
H.R. 4086 is an exceedingly modest bill that will nonetheless foster
tremendous benefits for the American people.
I applaud Representative Steve Chabot, the sponsor of this bill, as
well as my fellow co-sponsors, Judiciary Chairman Lamar Smith and
Representative Steve Cohen, for their leadership on this issue.
I urge my colleagues to support this bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Texas (Mr. Smith) that the House suspend the rules and
pass the bill, H.R. 4086, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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