Egon Schiele’s “Portrait of Wally” (1912) was stolen by the Nazis (image via Wikimedia)
On Tuesday, the US House of Representatives passed a bill that would ensure that authorities cannot seize works of art brought into the United States for temporary display in cultural institutions — even if they’re determined to have been stolen.
The Foreign Cultural Exchange Clarification Act — or H.R. 889 — would amend the existing Foreign Sovereigns Immunities Act to make an important distinction. Under the current law, if a museum displays a vase or other object loaned by a foreign government, and it’s discovered to have been stolen, it cannot be seized if the US President deems its display to be in the national interest (with the exception of Nazi-looted art). That immunity does not apply to artworks loaned by foreign governments that are shown in commercial galleries.
And here’s where the problem lies: current law does not clearly differentiate between artwork on display temporarily in a museum and artwork on display in a gallery. That means that the US government could theoretically confiscate stolen works exhibited in cultural institutions.
The bill — introduced by the Republican Congressman Steve Chabot of Ohio on behalf of himself and three other congressmen — still has to pass the Senate, and its fate seems uncertain. Two identical bills were passed by the House in 2012 and 2014, but died on the floor, likely because they were strongly opposed.
Some feared the law would make it easy for museums to exhibit stolen and looted art and antiquities. Writing on The Conversation, Tess Davis argued that the acts’s 2014 iteration would allow museums to block legal claims to artwork on loan from abroad, leaving owners without any way to recover their property in US courts. “Even without HR 4292, claimants already face huge legal hurdles in US courts, despite clear evidence of theft or looting,” she wrote.
Lawyer Nicholas M. O’Donnel of Sullivan & Worcester doesn’t think the law will permit museums to harbor stolen art, but he does see another problem with it as relations between the US and Cuba begin to warm and cultural institutions begin loaning works to each other. Many Cuban exiles in the US have lost property to the Cuban government, but since Cuba and the United States have virtually no commercial relationship, it would make it impossible for them to ever get their property back.
“I do not believe that [the law] is a parade of horribles or a license to import stolen art. It is not, and as long as there is [the Foreign Sovereigns Immunities Act] — which I firmly believe there should be to encourage cultural exchange — potentially stolen art is going to be in the US temporarily,” O’Donnel wrote on Lexology’s Art Law Report. “But since it is already so limited to a rare circumstance, and since I can see Cuba in particular being a big issue in the coming years, it’s probably best if it meets the fate of its predecessors.”
