Senate Bill 2212: Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Aims to Prevent Seizures of Nazi-era Looted Paintings on Loan to American Museums

by Catherine Sezgin, ARCA blog Editor-in-Chief

The proposed Senate Bill S. 2212, the Foreign Cultural Exchange Jurisdictional, is the biggest threat to date of making legal claims for stolen art, according to Marc Masurovsky, a Washington, DC-based historian and a former researcher director for the Presidential Advisory Commission on Holocaust-era Assets.

The bill was sponsored by Senator Dianne Feinstein (1992-2012), a Democrat from California, who introduced the bill on March 20th to "clarify the exception to foreign sovereign immunity set forth in section 1605 (a)(3) title 28, United States code.

"S. 2212 will immunize most looted art coming into the United States," Masurovsky wrote on a message on Facebook.

According to Govtrack.us, the bill is in the first stage of the legislative process:  "Most bills and resolutions are assigned to committees which consider them before they move to the House or Senate as a whole ... The sponsor [Feinstein] is a member of the Senate Committee on the Judiciary, where the bill has been referred." The bill is co-sponsored by Senator Orrin Hatch (Republican-Utah), another member of the senate's judiciary committee. Govtrack.us also identifies this bill as related to another in the House of Representatives: H. R. 4086 of the same name.

"The backers of these two bills have asked Jewish groups, claimants and other interested parties, to make a choice: by opting for a limited category of art objects to be claimed in US courts that would come in from abroad for "cultural display," Masurovsky wrote in an email.  "They will allow all other looted art objects to enter the US without any possible legal recourse to seek restitution of those objects in a US court of law."

According to the bill submitted by Feinstein and Hatch:

If 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 education institutions within the United States;

Last November, a Florida U. S. Attorney seized a 16th century painting (Girolamo Romano's Christ Carrying the Cross Dragged by a Rogue (1538) from the permanent collection of Italy's Pinacoteca di Brera in Milano loaned for an exhibit at the Mary Brogan Museum of Art and Science in Tallahassee. In February, a U. S. judge ordered the painting to be returned to the heirs of Frederico Gentili di Giuseppe, an Italian Jew who died in Paris before the Nazis invaded France.

"The case in Tallahassee could never have occurred had the bill been passed last year," Masurovsky explains.  "The question remains also whether Wally could have been made possible had the bill existed in 1997 as well as the Altman v. Republic of Austria and all of the Max Stern Estate seizures in the US."

The bill distinguishes that the artworks is a cultural object and not to be considered to be a commercial activity.  "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)."

The "covered government" involves the Nazi's Third Reich regime and the "covered period" is specified as January 30, 1933, through May 8, 1945."

This S.2212 aims to prevent seizures such as the one in the Florida case above.

The ARCA blog asked Ori Z. Soltes, co-founder of the Holocaust Art Restitution Project, for a comment:

"I have three basic comments: the first is to acknowledge that the intention on the part of Feinstein and Hatch comes from the right emotional place and even to laud their intention, but to suggest that they are simply being misguided; to wit (and here is my second comment, which is essentially to repeat virtually what Marc has said with regard to the danger of so narrowing the focus on Nazi-plundered art): that the result is to make the coming of all other kinds of plundered art into the United States immune not just from seizure, but from being recognized as plundered; the effect for archaeological artifacts in particular is potentially disastrous. 

"My third comment, related to the second, is that the narrowing of focus that the bill proposes adds another aspect of looking at the Holocaust as an event specifically Jewish or specifically European or specifically whatever, which enables people to ignore the larger issue, the human issue, of which it is part, and which "largeness" is evidenced by the depressing number of Holocaust-like events to which one can point across the planet both before and after World War II -- which is analogous to the broad range of culture plunder both before and after. If, with all of its unique aspects (of which are plenty) we simply view it as an aberration, we no longer have to ask as many questions about ourselves, we no longer have to think as much--and that is a profound danger particularly to the American people, with ramifications beyond this issue."

Christ Carrying the Cross Dragged by a Rogue/FCN