[UPDATED] Bipartisan Cultural Property Immunity Bill Passes the House Again
[UPDATE]: The President signed the bill described below into law on December 16, 2016.
[UPDATE 12/15/16]: HR 6477 passed the Senate by voice vote on December 10. It is now on the president’s desk for signature or veto.
The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) (HR 6477) is moving its way through Capitol Hill with broad bipartisan support. The bill passed the House on Thursday without objection. Now it goes to the Senate for consideration.
The legislation aims to reinforce the shield protecting foreign art on temporary loan to American museums from judicial action. International museum loans are a critical part of any solution that reduces looting and smuggling of archaeological artifacts.
The Senate Judiciary Committee passed its own version of the FCEJICA on September 15 (S. 3155). Its chief sponsor is Senator Orrin Hatch (R-UT), and the bill has nine Democratic and five Republican co-sponsors, including Senators Dick Durbin (D-IL), Dianne Feinstein (D-CA), Lindsey Graham (R-SC), Chuck Grassley (R-IA), and Chuck Schumer (D-NY).
The chief sponsor of the House bill, Congressman Steve Chabot (R-OH-1), said in a statement this week, “This is simple, straightforward legislation. It clarifies the relationship between two conflicting statutes to encourage the foreign lending of art to the United States.” “While this legislation makes a relatively minor change to existing law,” Chabot noted that “it will, if enacted, provide enormous cultural benefits to the American people.”
Prior versions of the FCEJICA have been proposed since 2012, and all have failed to become law.
The current proposal amends the Foreign Sovereign Immunities Act (FSIA) so that culturally significant artwork imported by American museums for temporary exhibition would not be characterized as “commercial activity.” This change is important because current federal law immunizes foreign nations from lawsuits except when they conduct commercial activity.
Nazi-era claims.–[Jurisdictional immunity] shall not apply in any case … in which rights in property taken in violation of international law are in issue … and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945].
Both the House and Senate proposals would erase the current conflict between IFSA and the FSIA, encouraging foreign lenders to supply art on temporary loan to US museums without fear of being sued. Foreign lenders need iron-clad notice that their loaned artworks, or that they themselves, will not be subject to expensive court proceedings simply because they agreed to donate objects for temporary display at US museums.
Meanwhile, the State Department should better scrutinize IFSA requests from museums, particularly in cases where looted antiquities or Nazi-era thefts are suspected, because it is not good public policy to mistakenly immunize illegally dug-up archaeology or stolen fine art.
Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.
