Bill would give loaned art immunity from seizure

LA Times 5 April 2012

Lithographs pertaining to 1829-30 diplomatic mission of Khusraw Mirza of Iran to Russian Court. (LACMA / April 3, 2012)

For more than a year, Russia has prohibited its government-run museums from sending artworks to exhibitions in the United States. The ban has frustrated and puzzled American museum officials, because it was spurred by a legal decision unrelated to anything the museums themselves have done. Diplomacy has failed to lift it.

Hopes have risen recently that the impasse can be broken by a bipartisan bill that passed unopposed in the U.S. House of Representativeson March 19 and is pending in the Senate judiciary committee. But an official at the Russian Embassy inWashington, D.C., said Wednesday that the bill is not strong enough to meet Russia's concerns.

Russia banned art loans to the United States after a 2010 federal court ruling that a historic collection of Jewish religious books and Rabbinic writings belongs not to Russia but to the U.S.-based Hasidic group, Chabad, and must be returned.

Concerned that Chabad might try to seize artworks as collateral or compensation for its missing texts, Russian authorities imposed the ban — despite assurances from American officials that artworks loaned by foreigners for nonprofit exhibitions are protected from seizure under a longstanding federal law. Last May, Chabad filed a legal stipulation saying it had no designs on Russian art treasures, but the ban has remained.

The bill making its way in Congress doesn't say anything about Russia or Chabad; it aims more broadly to allay doubts any foreign governments might have about America's ability to enforce the 1965 law that protects disputed foreign artworks from legal seizure attempts as long as they're on loan for exhibitions and have been OK'd by the executive branch.

The new law, sponsored in the Senate by California Democrat Dianne Feinstein and Utah Republican Orrin Hatch, seeks to close a potential loophole that arose from a 2007 federal court ruling. In that case, a judge circumvented the 1965 law and allowed plaintiffs to go forward with a suit to seize art on loan from a Dutch museum.

While it's not pegged to Russia's concerns in the Chabad case, some experts think the bill's passage could help end the art loan ban by giving Russian officials a pretext for declaring that they've achieved their purpose and can resume normal relations with U.S. museums.

But the Russian Embassy official, who requested anonymity because he is not a designated spokesman, said the bill does not provide the "absolute protection from any judgment or court order" that his government requires to resume art loans. He expressed frustration with the American legal system, saying that Russia wants ironclad assurances — nearly as stringent as the legal immunity accorded to foreign diplomats — that its artworks will never be detained, and that Russia will not have to incur the expense of defending cultural property from seizure attempts filed in American courts.

Among the art shows most affected by the Russian ban was "Gifts of the Sultan," a display of Islamic art last summer at the Los Angeles County Museum of Art, which lost about 30 hoped-for pieces from three Russian museums. The full-scale version of "Gifts of the Sultan" that LACMA had envisioned, complete with the Russian loans, was realized belatedly last month when it arrived at its final tour stop, the Museum of Islamic Art in Doha, Qatar.

In the case that gave rise to the bill that's now in the Senate, heirs of the Russian artist Kazimir Malewicz (or Malevich) sued to reclaim 14 works loaned by the Stedelijk Museum in Amsterdam for exhibitions in New York and Houston.

Instead of dismissing the case because of the 1965 law granting immunity from such suits, a U.S. District Court judge inWashington, D.C., ruled that another, more general legal principle overrode that immunity. Typically, foreign governments can't be sued for their actions in U.S. courts — but there's an exception if the claim rises from "commercial activity."

The judge ruled that nonprofit art exhibitions are a form of commercial activity, and allowed the Malewicz suit to proceed. The case involved complex questions about whether the Stedelijk's 1950s purchase was proper, according to an online summary by the International Foundation for Art Research, and the parties settled out of court.

The bill now before Congress would prevent similar end-runs around the 1965 law, by specifying that foreign governments' art loans to U.S. exhibitions are not commercial activity. The bill says that suits to recover artworks believed to have been looted by the Nazis would still be allowed.

A Feinstein spokeswoman said this week that several California museums had "voiced concern that the uncertainty created by the Malewicz decision has made [securing foreign art loans] more difficult," and that the Assn. of Art Museum Directors has said those concerns are "widespread."

But only Russia issued a blanket ban on art loans to the United States — and not until three years after the Malewicz ruling, when the Chabad decision came down.

Gregory Guroff, president of the Foundation for International Arts and Education, a Bethesda, Md.-based nonprofit that organizes exhibitions of art from Russia and the other former Soviet republics, thinks the ban was an overheated and unnecessary response to the Chabad ruling, and hopes that Russian officials will view passage of the new bill as an opportunity to reconsider and take a more moderate position.

"The Russians went crazy, decided [that the Chabad case and art loans] are linked, and began making all kinds of demands for treaties" to guarantee that Russian cultural property would be given special immunity from suits in American courts, said Guroff, a former cultural attache to the U.S. Embassy in Moscow. Russia "chose to make this a big deal, and as in any bureaucracy, they can't say `we made a mistake.' The word I get from the Russian side and the American side in Moscow is that the Russians are quite pleased" with the bill in Congress. "They're looking for ways to get out of this."

If the legislation turns out not to be a strong enough lever to lift the ban, Guroff said, another hope might be bureaucratic changes resulting from last month's Russian presidential election, including a possible replacement for Alexander Avdeyev as minister of culture. In January, Avdeyev told the Moscow-based Interfax news agency that art loans to the United States "will only resume when we are given 100% guarantees of their return."

A successor might be free to show more flexibility, Guroff said. "It's public knowledge that Avdeyev is leaving, he's made it clear. The question is who will replace him, and when."

Kent Russell, curator and chief executive of the Museum of Russian Icons in Clinton, Mass., said that while the Chabad decision is what caused Russia to ban art loans to the United States — including shutting down a show last year at his museum — the Malewicz case also was on Russian officials' minds at the time.

"They referred to it quite a lot," he said. "I hope [the bill] will satisfy them. I'm keeping my fingers crossed.",0,2180010.story
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