Immunity of Art From Judicial Seizure

Immunity of Art and Other Cultural Objects From Judicial Seizure in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On June 15, 2011, the United States filed a statement of interest in the U.S. District Court for the District of Columbia in a case brought by Agudas Chasidei Chabad, a New York-based religious organization, against the Russian Federation and several Russian government entities seeking the return of a collection of books and manuscripts of cultural significance. Chabad v. Russian Federation, et al., No. 05–cv–1548 (D.C. Dist. 2011). Chabad obtained a default judgment in 2010 ordering the defendants to surrender the collection and sought court orders permitting enforcement of the judgment through attachment and execution. The United States filed the statement of interest to address the operation and relevance of the Immunity from Seizure Act, 22 U.S.C. § 2459. The U.S. statement of interest is excerpted below (with footnotes omitted) and available at (internet link) state.gov/s/l/c8183.htm. The district court's opinion and order authorizing enforcement through attachment and execution specified that property covered by 22 U.S.C. §2459 would be exempt from attachment. Chabad v. Russian Federation, 798 F.Supp.2d 260, 271-72 (D.C. Dist. 2011).

Developments

A. The United States Has an Interest in the Application of § 2459 Congress passed § 2459 in 1965 to “provide a process to render immune from seizure under judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition, and to provide machinery to achieve this objective.” H.R. Rep. No. 89-1070, at 3577 (1965). The statute states, in relevant part:

Whenever any work of art or other object of cultural significance is imported into the United States from any foreign country, pursuant to an agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition or display thereof within the United States at any cultural exhibition, assembly, activity, or festival administered, operated, or sponsored, without profit, by any such cultural or educational institution, no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object if before the importation of such object the President or his designee has determined that such object is of cultural significance and that the temporary exhibition or display thereof within the United States is in the national interest, and a notice to that effect has been published in the Federal Register.

Details

22 U.S.C. § 2459(a).

To obtain immunity for imported cultural objects under § 2459, the United States borrowing institution must first submit an application to the Department of State. That application must include, among other components, a list of the imported objects to be covered, a copy of the agreement with the foreign owner or custodian, a list of expected places and dates of exhibition in the United States, and a statement explaining the cultural significance of the imported objects. See Check List for Applicants, U.S. DEPT. OF STATE, (internet link) www.state.gov/s/l/3196.htm (last visited June 9, 2011). The Department of State must then make determinations as to whether the objects are of cultural significance and whether their temporary exhibition in the United States is in the national interest. If the Department of State makes favorable determinations regarding those questions and publishes a notice to that effect in the Federal Register prior to importation, those cultural objects are immune from any judicial process that would interfere with the borrower's custody or control. 22 U.S.C. § 2459(a).

Section 2459 was enacted in large part to address certain foreign policy objectives. Chief among those objectives was the goal to facilitate cultural exchanges as a means to foster international cooperation. See H.R. Rep. No. 89-1070, at 3578 (1965). Standing in the way of such exchanges at the time of § 2459's enactment was the threat that foreign cultural objects would be seized while on loan to the United States. Indeed, when the legislation was under consideration, an exchange was pending between a Soviet museum and the University of Richmond, and the Government of the Soviet Union insisted on statutory immunity from seizure as a condition for the loan. … Since then, as indicated by a search of the Westlaw Federal Register Database, well over one thousand § 2459 immunity notices have been published, many of which cover foreign state-owned cultural objects. Implementation of the § 2459 program, thus, has played an important role in conducting public diplomacy and facilitating exchanges of cultural objects with foreign lenders, including foreign states and their political subdivisions.

The United States is concerned that a broad, unqualified attachment order in this or any other proceeding could be used in an attempt to seize immune property, including cultural objects protected by § 2459. If issued, Plaintiff's proposed order would fail to alert other courts or enforcement authorities to the potential immunities applicable to Defendants' property. The United States has an interest in the courts' determining the immunities of particular property—whether pursuant to § 2459 or to other relevant statutes, such as the enforcement provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1609—that has been targeted by Plaintiff before issuing a writ of attachment or execution.

More specifically, this dispute has raised the precise concerns that § 2459 was designed to alleviate. …[A]fter the Court's July 2010 entry of judgment on the default, the Russian Federation imposed a moratorium on all loans of Russian cultural treasures to exhibitors in the United States. This moratorium also included a recall of art already on temporary display in the United States that had received immunity protection under § 2459. See, e.g., Culturally Significant Objects Imported for Exhibition Determinations: “Treasures of Moscow: Icons From the Andrey Rublev Museum,” 75 Fed. Reg. 53012-03 (Aug. 30, 2010).

Section 2459 was passed in an effort to avoid this kind of international friction. The drafters recognized that cultural exchange promotes mutual understanding and strengthens ties between peoples, and that without assurances against seizure, many of those exchanges would not take place. See H.R. Rep. No. 89-1070, at 3578-79 (1965). It is, therefore, in the interest of the United States that any order authorizing attachment and execution makes clear that it cannot be used in an attempt to seize Russian cultural objects protected by § 2459.

More about the Issue

Since becoming aware of the United States' concerns regarding the integrity of § 2459, Plaintiff has filed two documents in an effort to allay those concerns. As explained above, both documents disclaim any intention to attach or execute upon Russian cultural objects that are immune from judicial process under § 2459. The United States appreciates Plaintiff's efforts to make its intentions clear, and understands its filings to acknowledge that imported cultural objects on temporary loan to U.S. institutions are immune from judicial seizure when the Department of State has published in the Federal Register its determinations of cultural significance and national interest.

B. The United States Supports the Transfer of the Collection to Chabad The United States wishes to make clear that this Statement of Interest is only intended to advise the Court of the United States' interest in the efficacy and integrity of § 2459, and is in no way intended to signal any change in its consistent position that the Collection should be transferred to Chabad. Since the early 1990s, the Executive Branch has made extensive diplomatic efforts to help Chabad gain possession of those materials. See The Schneerson Collection and Historical Justice: Hearing Before the Commission on Security and Cooperation in Europe, 109th Cong., 1st Sess. 6 (2005). The United States has raised the issue at the Presidential level under administrations of both major U.S. parties, and in cabinet, Ambassadorial, and working-level diplomatic discussions. Id. In addition, there have been several congressional letters written to the President of the Russian Federation on Chabad's behalf, strongly urging that the Collection be surrendered to Chabad. Id. at 13. The United States has not deviated from this position and continues to support Chabad's efforts to recover the Collection.

Resources

See Also

• Educational Issues
• Cultural Issues
• Immunity
• Cultural Objects
• Judicial Seizure