[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]

      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.

                          ____________________