[Congressional Record Volume 158, Number 46 (Tuesday, March 20, 2012)]
[Senate]
[Pages S1848-S1850]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. FEINSTEIN (for herself and Mr. Hatch):
S. 2212. A bill to clarify the exception to foreign sovereign
immunity set forth in section 1605(a)(3) title 28, United States Code;
to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I am very pleased to join with my
colleague and good friend Senator Hatch to introduce this bill, which
will resolve an unsettled issue that is making it difficult for museums
and universities to obtain works of art for temporary exhibition from
foreign countries.
Cultural exchange with foreign nations enables the sharing of ideas
and history across the globe. When foreign works are shown at American
museums, they expose our people to the richness of world history and
culture.
In 2011, the San Diego Museum of Art hosted an exhibition of 64 works
of famous Spanish artists, such as El Greco, Pablo Picasso, Francisco
Goya, and Salvador Dali.
Also in 2011, the De Young Museum in San Francisco hosted an
exhibition of more than 100 Picasso masterpieces from Paris, as well as
more than 100 objects from the Olmec civilization in Mexico.
In 2009, the Los Angeles County Museum of Art hosted an exhibit
containing artifacts from the Ancient Roman city of Pompeii, which was
buried by a volcanic eruption and rediscovered in the 18th Century.
In 2007, the Los Angeles County Museum of Art hosted an exhibit with
approximately 250 works of art created in more than seven different
Latin American countries between 1492 and 1820.
Without these exhibitions coming to American museums, many Americans
simply would not have the chance to see such important cultural and
historical works in person. Exhibitions of such works also draw
countless visitors each year, helping museums--which are vital to the
preservation of our own culture and heritage--survive and thrive in
difficult economic times.
For decades, American law has offered legal protection for these
exhibitions. Passed in 1965, a law called the Immunity from Seizure
Act, 22 U.S.C. 2459, is designed to provide the legal certainty
necessary for American museums to organize such exhibitions with their
foreign counterparts.
[[Page S1849]]
This law empowers the President or his designee to approve a foreign
work for temporary exhibition or display in the United States, a
process now handled by the State Department. If approval is granted,
then the work of art is essentially protected from judicial process--
such as a court-ordered seizure--while it is in the United States.
Unfortunately, this important law has been undermined by a decision
of the U.S District Court for the District of Columbia in a case called
Malewicz v. City of Amsterdam.
In this case, the City of Amsterdam had made a temporary loan of
works of art for educational and cultural purposes to the Guggenheim
Museum in New York and the Menil Collection in Houston Texas.
Even though the State Department's approval was sought and received
for the temporary loan, the court held that the City of Amsterdam's
temporary loan nevertheless subjected the City to Federal court
jurisdiction in a lawsuit over the work of art.
The reason was that--even though the loan was for educational and
cultural purposes, for works to be shown at museums--the City's
activities nevertheless qualified as ``commercial activity'' under a
provision of the Foreign Sovereign Immunities Act, 28 U.S.C.
1605(a)(3).
The result of this decision, unsurprisingly, is that foreign museums
have been more reluctant to lend their art works to our museums in the
United States.
The Executive Branch during the Bush administration recognized this
problem and tried to correct it. It urged the D.C. Circuit to reverse
the decision, saying in an amicus brief that the District Court's
ruling was wrong, that it ``substantially undermine[d] the purposes''
of the Immunity from Seizure Act, and that it would ``discourage
foreign states and other lenders from providing their artwork for
temporary exhibit in the United States.'' Unfortunately the appeal was
dismissed before the D.C. Circuit had a chance to correct this problem.
That is why this bill is necessary.
Several museums in my home state--including the San Francisco Museum
of Modern Art, the Asian Art Museum in San Francisco, the Los Angeles
County Museum of Art, the Cantor Center for Visual Arts at Stanford
University, and the Santa Barbara Museum of Art--have asked me to help
restore the legal certainty that existed prior to the Malewicz
decision. I know that institutions in Senator Hatch's home State of
Utah have sought his help in this regard as well.
I am very pleased to say that Senator Hatch and I have worked
together--along with House Judiciary Committee Chairman Lamar Smith,
Ranking Member John Conyers, and Representatives Steve Chabot and Steve
Cohen--to draft a narrow bill that we hope can be enacted quickly this
year.
This bill is simple. It relies on the State Department's approval
process. If the State Department approves a loan of a foreign art
work--essentially immunizing the work from judicial seizure under
existing law--then the foreign state's activities associated with the
work's exhibition cannot be used to assert jurisdiction over the
foreign state under the Foreign Sovereign Immunities Act, 28 U.S.C.
1605(a)(3).
This narrow approach does only what is necessary to fix the problem
created by the Malewicz decision--nothing more, nothing less.
It is important to note that this bill would not apply if the foreign
state does not seek or receive the State Department's approval. The
State Department requires detailed certifications and independent
investigations about an art work's provenance before it grants
approval. The bill also expressly would not apply to any work taken in
Europe by the Nazis or their collaborators.
Once again, I thank Senator Hatch and my colleagues in the House for
working with me on this important legislation, which has already passed
the House of Representatives by voice vote. I urge my colleagues to
join us in supporting this legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2212
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 providing for the
temporary exhibition or display of such work entered into
between a foreign state that is the owner or custodian of
such work and the United States or 1 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 (79 Stat.
985; 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) notice has been published in the Federal Register in
accordance with Public Law 89 259,
any activity in the United States of such foreign state or
any carrier associated with the temporary exhibit or display
of such work shall not be considered to be commercial
activity for purposes of subsection (a)(3).
``(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; and
``(C) a determination under subparagraph (B) is necessary
for the court to exercise jurisdiction over the foreign state
under subsection (a)(3).
``(3) Definitions.--For purposes of this subsection
``(A) the term `work' means a work of art or other object
of cultural significance; and
``(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; and
``(iv) any government that was an ally of the Nazi
government of Germany; and
``(C) the term `covered period' means the period beginning
on January 30, 1933, and ending on May 8, 1945.''.
(b) Applicability.--The amendment made by subsection (a)
shall apply to cases commenced after the date of the
enactment of this Act.
Mr. HATCH. Mr. President, I join the Senator from California, Senator
Feinstein, in introducing legislation to clarify the legal protections
for art that is loaned from overseas for exhibition in the United
States. This bill passed the House yesterday by voice vote and I hope
it can soon become law.
We are blessed in this country to have so many fine institutions that
provide exposure to the art, culture, and history of other lands. Both
public and private art museums can be found all over America, including
at many of our fine universities. We must ensure that the exhibitions
hosted by these museums continue to benefit all Americans.
A major exhibition can take years to develop and potential overseas
lenders must be assured that their art will be legally protected while
it is in the United States. Many exhibitions simply will not be
possible without that assurance. We have had laws in place for decades
that did just that, and they worked exactly the way they were supposed
to. Specifically, the Protection from Seizure Act guaranteed that once
the State Department reviewed and certified an exhibition as being in
the national interest, the art was immune from legal judgments or court
orders while in this country.
This legal protection was thrown into doubt by a Federal court
decision several years ago. The U.S. District Court here in the
Washington considered a case involving the Foreign Sovereign Immunities
Act, which allows certain kinds of lawsuits against foreign countries
in American courts. One of those categories is when art allegedly taken
in violation of international law is present in this country in
connection with a commercial activity. The court construed that
condition of being present ``in connection with a commercial activity''
in a way that could include art that is here for exhibition under the
Protection from Seizure Act.
[[Page S1850]]
The dilemma here is easy to see. These statutes are not supposed to
be in conflict. Bringing art here under the protection of one statute
is not supposed to create jurisdiction for a lawsuit against the lender
under another statute.
The solution is also easy to see. The bill we introduce today is very
short and very simple. It clarifies that the presence in this country
of art under the Protection from Seizure Act does not create
jurisdiction for a lawsuit under the Foreign Sovereign Immunities Act.
It simply returns these two statutes to the harmony they were intended
to have all along and to lift the cloud of doubt that has hung over the
art exhibition process for the last several years.
I want to thank the Brigham Young University Museum of Art for
bringing this issue to my attention. The BYU museum is the premier art
museum in the Mountain West and the most attended university art museum
in North America. BYU is the organizing institution for a major
exhibition titled Beauty and Belief: Crossing Bridges with the Art of
Islamic Cultures. This amazing event, which will be at BYU through
September and is free to the public, includes art from a dozen foreign
countries. As this project was in development, the museum director
raised with me the need to clarify the law protecting art loaned for
exhibition. Thankfully, the BYU exhibition was not hindered, but the
Association of Art Museum Directors has documented that this is a
problem elsewhere.
This is a problem that is easy to fix. It is not a partisan or an
ideological issue. It is not a spending program. It involves neither
regulations nor taxes. Each of our States has institutions that can
benefit from this clarification. As my colleagues will see, we did put
a caveat in the bill so that it will not apply to the ongoing efforts
to identify and recover art and cultural objects seized by the Nazis
during the World War II era.
Again, I want to applaud the BYU Museum of Art for its triumphant
exhibition and for bringing this issue to my attention so that
Americans can continue to enjoy this enriching and educational
experience. I thank my colleague from California for introducing this
bill, and for working to refine its language so that we can solve this
specific problem. This short bill proves that good things can come in
small packages and I hope the Senate will follow the House and quickly
pass this bill.
____________________