[Congressional Record Volume 163, Number 3 (Thursday, January 5, 2017)]
[Senate]
[Page S108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION BILL
Mr. HATCH. Mr. President, in the final hour of our legislative
business early last December 10, we passed a remarkable bill. It had no
ideological division, did not cost the taxpayers a dime, and will
benefit Americans in every part of the country. And, like the House
did, we passed it unanimously.
This bill had the somewhat unwieldy title of the Foreign Cultural
Exchange Jurisdictional Immunity Clarification Act. While not lending
itself to a catchy acronym, it is accurately descriptive. For more than
50 years, a Federal law has provided legal protection for art loaned by
foreign governments for exhibition in the United States. Confidence in
that protection is an essential piece of the complex arrangements that
can take years to complete in order to bring wonderful exhibits to
American museums for everyone to enjoy.
America has hundreds of museums of all sorts. The art museum at
Brigham Young University, for example, is one of the largest and best
attended in the Mountain West. When it began working on a major
exhibition of art from Islamic countries, some of its loan requests
were unexpectedly denied. It turns out that a 2007 Federal court
decision had made such loans risky, rather than secure. After that
court decision, the act of lending, even after State Department review
and approval, could actually lead to a new category of lawsuits against
the foreign lenders.
This legislation, now signed into law, reverses that court decision
and clarifies that lending art after State Department review does not
raise the possibility of new litigation. Foreign governments can once
again have confidence that lending art for exhibition will improve
cultural understanding and enrich people's lives without the threat of
new lawsuits.
The bill has two narrow exceptions. I want to thank Dr. Wesley
Fisher, director of research at the Conference on Jewish Material
Claims against Germany, and Rabbi Andrew Baker, director of
International Jewish Affairs at the American Jewish Committee, for
their help in drafting the exception for Nazi-era claims. The second
exception covers comparable state-sponsored coercive campaigns of
cultural plunder. Art that was looted in such a campaign should not be
given protection for exhibition in the United States.
The senior Senator from California, Mrs. Feinstein, was my principal
partner in this effort. She and her staff have been patient,
thoughtful, and dedicated; in particular, I want to thank her chief
counsel, Eric Haren, and counsel Lartease Tiffith for working so
diligently with my own chief counsel, Tom Jipping. The problem to be
solved was clear, but it was challenging to find the right language to
solve that problem without unintended consequences.
I also want to thank the Association of Art Museum Directors, their
director of government affairs Anita Difanis, and their special counsel
Josh Knerly. They have been committed to this goal from the start, and
their effort began with educating many of us about this unique area of
law and policy. They mobilized hundreds of art institutions and
associations to support this bill. And they were flexible about many
things while staying focused on the essentials.
I gratefully acknowledge the consistent support for this legislation
from the BYU Museum of Art, the Utah Fine Arts Museum, and the Utah
Museums Association. We have a vibrant art community in Utah, and this
legislation means that these fine institutions have additional
opportunities to bring new experiences to the people in our great
State.
Mr. President, I ask unanimous consent to have printed in the Record
following my remarks a letter from James S. Snyder, director of The
Israel Museum in Jerusalem. He writes that the risk of new lawsuits has
been ``a disincentive to lend works to American museums,'' but that
this legislation ``will ensure that museums worldwide can continue to
lend to American museums in the precise spirit of international
cultural cooperation that U.S. Immunity from Seizure protection was
intended to provide.'' That, in a nutshell, is the problem and the
solution we are enacting today.
This legislation restores the confidence that foreign governments
need to lend art for exhibitions that Americans across the country can
enjoy. That is something we can all be proud of.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Israel Museum,
Jerusalem, March 17, 2013.
Hon. Orrin Hatch,
U.S. Senate,
Hart Office Building, Washington, DC.
Dear Senator Hatch: I am Director of The Israel Museum,
Jerusalem, an encyclopedic museum embracing the history of
material world culture from pre-historic archaeology of the
ancient Holy Land through the rise of Judaism, Christianity,
and Islam; Jewish world culture; and the fine arts of the
Western and non-Western traditions. Our collections comprise
over 500,000 objects, and our 600,000 sq. ft. campus sits on
a signature 20-acre site in Jerusalem. We are internationally
active as producers of temporary exhibitions in Jerusalem and
internationally and as major borrowers and lenders from
sister institutions worldwide.
Our international museum community, which enjoys a close
and collegial relationship with our American counterparts, is
concerned about the trend toward a weakening of the Immunity
from Seizure protection customarily offered by U.S. museums
when they request loans from foreign museums. These concerns
are two-fold:
First, that foreign museums risk being sued in connection
with works loaned to an American exhibition if there is a
question that works on loan are held by their lending
institutions in violation of international law. The act of
lending can therefore be used as the basis to seek damages in
a U.S. court, which is counter to the premise that Immunity
from Seizure protects works on loan from legal action while
they are on loan; and
Secondly, foreign museums that loan works with clear
provenance to an American exhibition may nonetheless be sued
with regard to other works in their collections that may lack
full provenance. In this regard, the simple act of lending,
in the spirit of international exchange, opens us to possible
claims with regard to any and all works in our collections.
Each of these potential circumstances raises troubling
concerns, and, taken together, they are a disincentive to
lend works to American museums, given the potential risk of
suit in U.S. courts. And this prospect is exactly what U.S.
Immunity from Seizure was originally established to avoid.
Anything that you can do to strengthen Immunity from
Seizure in the U.S. will ensure that museums worldwide can
continue to lend to American museums in the precise spirit of
international cultural cooperation that U.S. Immunity from
Seizure protection was intended to provide.
Please let me know if I can answer any further questions in
this matter.
Sincerely,
James S. Snyder,
Director.
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