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How the Cultural Exchange Jurisdictional Immunity Clarification Act Works

[Sen. Hatch speaking on the legislation in the Senate Judiciary Committee]

The Problem

Many Americans enjoy exhibitions of art and cultural objects on loan from foreign governments.  Under the Protection from Seizure Act (22 U.S.C. §2459), or PSA, the physical custody of these objects is protected while in the United States after review and certification by the State Department.  By misconstruing another federal statute, the Foreign Sovereign Immunities Act (28 U.S.C. §1605), or FSIA, a federal court has cast the PSA’s protection in doubt and, therefore, made foreign governments less willing to lend.

The FSIA provides that a foreign state may be sued in the U.S. over property taken in violation of federal law when that property is “present in the United States in connection with a commercial activity.”  In Malewicz v. City of Amsterdam (2005 and 2007), the U.S. District Court held that activities related to an exhibition approved by the State Department under the PSA qualify as “commercial activity” under the FSIA. 

The problem is obvious: lending art for exhibition could expose a foreign government to a lawsuit over art and cultural objects still in the possession of that government.  Individual art museums, and the Association of Art Museum Directors, report that this confusion is a disincentive for foreign governments to lend art for exhibition in the United States.

The Solution

The Malewicz decision put the PSA and FSIA in conflict; the Cultural Exchange Jurisdictional Immunity Clarification Act puts them back in harmony.  This bill states that if a work loaned by a foreign government qualifies for PSA protection, activities associated with that exhibition cannot trigger an FSIA lawsuit.  That’s it.  The House has passed this same legislation by voice vote in the 112th Congress (H.R.4086); by 388-4 in the 113th Congress (H.R.4292); and by voice vote in the 114th Congress (H.R.889). The House Judiciary Committee report may be accessed here:

The bill neither changes any legal process that existed prior to the Malewicz decision nor forecloses other existing avenues for those seeking to recover objects that were obtained unlawfully.  It exempts claims concerning works taken by the Nazi government or its allies during World War II, a provision developed in consultation with groups including the American Jewish Committee and the Jewish Claims Conference.  It also exempts claims concerning works taken through a comparable systematic government campaign against members of a targeted group.

The bill has been endorsed by 32 national associations for museums (academic, children’s, art, history), libraries, composers, art dealers, orchestras, dance, musical theatre, Latino culture, and design; 12 regional museum associations, and nearly 200 individual museums in 45 states. 

Senator Hatch spoke at a Judiciary Committee hearing about the Cultural Exchange Jurisdictional Immunity Clarification Act. His remarks, a prepared for delivery, are below:

Across this country, art museums offer wonderful opportunities for education and enjoyment through exhibitions of art and cultural objects. 

Many of these exhibitions include items loaned by foreign governments, allowing many of our constituents an experience they could never otherwise have. 

For more than 50 years, a federal law called the Protection from Seizure Act has been a critical part of the complex agreements and negotiations that produce these exhibitions. 

Under this law, works loaned by foreign governments are protected from court judgments and seizure if the State Department has reviewed and certified that a proposed exhibition is culturally significant and is in the national interest.

 Unfortunately, this protection is now in serious doubt. 

In 2007, a federal court construed another statute, the Foreign Sovereign Immunities Act, in a way that could expose to litigation a foreign government that lends works through the Protection from Seizure Act process. 

This unfortunate decision placed these two statutes, the Protection from Seizure Act and the Foreign Sovereign Immunities Act, in conflict when Congress intended them to be in sync.  

Not surprisingly, this has discouraged foreign governments from lending works for exhibition. 

This problem was first brought to my attention by the art museum at Brigham Young University, one of the largest and best-attended art museums in the Mountain West. 

They assembled an important exhibition of art from a dozen Islamic countries, the largest ever seen in Utah.

At the same time, in the confusion over whether the Protection from Seizure Act is reliable, loan requests for works from other countries were denied.

Museums have documented similar denials from countries all over the world.

This bill, S.3155, does one simple thing that will correct the problem. 

It provides that lending works through the Protection from Seizure Act process does not create jurisdiction for a lawsuit under the Foreign Sovereign Immunities Act.

It is important to emphasize that the Protection from Seizure Act does not automatically immunize any works of art.

Protection from seizure applies only after the State Department reviews and certifies an exhibition.

Legislation that relates to artwork from other countries can understandably raise some important and sensitive issues. 

I want to thank Senator Feinstein and her staff, who were especially helpful in working with interested parties to draft the exemption in the bill for Nazi-era claims. 

These interested parties include the Conference on Jewish Material Claims against Germany and the American Jewish Committee. 

This bill brings the United States in line with many other countries that protect art loaned for exhibition.

The Director of the Israel Museum in Jerusalem, for example, wrote me urging Congress to strengthen and clarify the Protection from Seizure Act.

He wrote: “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.”

I ask consent to put this letter in the record.

Mr. Chairman, more than 200 art institutions in 46 states, including 16 states represented by members of this committee, have endorsed this legislation. 

In my state, these include not only the BYU Art Museum but also the Utah Museum of Fine Arts at the University of Utah and the Utah Museums Association.

I ask consent that a letter from these institutions and associations be included in the record.

I also want to express my thanks to the Association of Art Museum Directors, which has been an invaluable partner in developing this bill.

The House has already passed this legislation without opposition and I understand they are ready to pass this version, which contains an additional provision requested by Senator Durbin.

This is a small bill addressing a specific problem. 

Solving that problem will be a great benefit to all our constituents and will not cost a dime. 

We don’t have many of these opportunities and I am glad we are seizing this one.