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Holy Grail or Propaganda Tool? United States Protects Foreign Art Exhibitions in New Law

Paging Indiana Jones ?

19 October 2018

In December, the United States made it easier for Holocaust victims to recover their stolen artworks. It also threw U.S. museums a bone, making it safer for foreign governments to send art exhibitions overseas. Yet, as Professor Jones would no doubt tell you, finding missing art treasures is always complicated.

Indy may never have found himself in a U.S. court, but those courts have been addressing stolen art claims for years.  For instance, a Jewish sect has been involved in a legal fight with the Russian government for more than a decade over the rightful ownership of a library of sacred texts seized by the Red Army at the tail-end of World War II.  Although U.S. courts have ordered Russia to return the library to the sect, the Russian government has refused to comply.  Plaintiffs who were injured in terrorist attacks have gone to court to try seize ancient artifacts on display at a Harvard museum and at four Chicago museums as partial payment for judgment against Iran.  As a result, the law on art and artifacts has turned into a real—sorry, Indy—snake pit.

At first glance, it wouldn't appear to be so complicated.  Typically, foreign governments can't be sued in U.S. courts.  The Foreign Sovereign Immunities Act, or FSIA, prevents most suits against foreign nations.  But, there are exceptions, including for claims arising out of a foreign government's commercial activity.  In the Harvard and Chicago cases, the plaintiffs argued that the artifacts on display were the property of the Iranian government and their display in American museums was commercial activity.  The courts hearing those two cases disagreed and told the plaintiffs to hunt for treasure elsewhere, but the effect has been to make it harder to obtain foreign exhibitions for display.  Foreign governments are concerned that if they send national treasures to the U.S. to be exhibited, they may have to go to court to get them back.

One of the two laws passed in December, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act is designed to protect foreign exhibitions by allowing foreign governments to receive protection for exhibiting "work … of cultural significance" when "the temporary exhibition or display of such work is in the national interest."  In such cases, the new bill clarifies that displaying artwork is not a "commercial activity," essentially short-circuiting the argument the plaintiffs in the Harvard and Chicago cases tried to make.

The Act also made it easier to hunt artwork stolen by the Nazis.  You didn't really think you'd get through an Indiana Jones article without Nazis, did you?  It's well known that the Nazis stole thousands upon thousands of art objects from Jewish collectors and art dealers in the years leading up to and during World War II.  As those works continue to show up in the world's art markets and museums, the original owners, or their descendants, are trying to get them back.  The Clarification Act specifically exempts Nazi-stolen artworks from the immunity provided other artifacts, making it slightly easier for Holocaust victims and their heirs to seek the works' return. 

A companion bill signed into law the same day changes the statute of limitations for seeking the return of art stolen by the Nazis, giving victims six years from the "actual discovery of the identity and location of artwork or other property and a possessory interest in the artwork or property."  In other words, if a modern day treasure hunter finds stolen artworks in a spooky cave in Austria in Nazi-era crates, the original owners have plenty of time to try to get them back.

As with any law, not everyone is happy about the changes.  Critics warn that the Act will make it easier and safer for foreign governments, like Russia, who allegedly stole artifacts in the past, to display them for propaganda purposes in the U.S. without fear of reprisal.  Ultimately, the laws are an attempt by the U.S. government to walk the narrow line between aiding victims to reacquire their lost heritage and maintaining good cultural relations with other nations.  Given the continued legal battles over confiscated and stolen treasures, it's unlikely these laws are the Holy Grail the museums or the victims seek.  Maybe this is why Professor Jones stuck to archaeology and never went into politics.