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Published online by Cambridge University Press: 07 September 2017
On December 16, 2016, President Obama signed into law the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA). This act amends the Foreign Sovereign Immunity Act (FSIA) in order to confirm the jurisdictional immunity of foreign states in connection with lending artwork to the United States for temporary exhibit. The FCEJICA contains two exceptions, described below, that introduce some uncertainty about the extent of protection the statute provides to foreign states.
1 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Pub. L. No. 114-319 (2016) [hereinafter FCEJICA]; see also Alyssa Buffenstein, Obama Signs Law that Could Reopen Cultural Exchange with Russia, Artnet News (Jan. 5, 2017), at https://news.artnet.com/art-world/obama-signs-law-cultural-exchange-russia-805304; Ingrid Wuerth, An Art Museum Amendment to the Foreign Sovereign Immunities Act, Lawfare (Jan. 2, 2017, 12:48 PM), at https:// www.lawfareblog.com/art-museum-amendment-foreign-sovereign-immunities-act.
2 22 U.S.C. §2459.
3 H.R. Rep. No. 89-1070 (1965).
4 28 U.S.C. §1605(a)(3).
5 H.R. Rep. No. 114-141, 2 (2015).
6 Malewicz v. City of Amsterdam, 362 F.Supp.2d 298, 300 (D.D.C. 2005).
7 Id. at 301.
8 Id.
9 Id. at 301–03.
10 Id. at 303.
11 Id. at 300.
12 Id. at 303.
13 Statement of Interest of the United States at 6, Malewicz, No. 1:04-cv-00024-RMC, available at https:// www.state.gov/s/l/2004/78110.htm.
14 Malewicz, 362 F.Supp.2d at 315–16 (denying the first motion to dismiss); see also Malewicz v. City of Amsterdam, 517 F.Supp.2d 322, 340 (D.D.C. 2007) (denying the renewed motion to dismiss).
15 28 U.S.C. §1605(a)(3) (emphasis added).
16 Malewicz, 517 F.Supp.2d at 340.
17 Malewicz, 362 F.Supp.2d at 311–12.
18 Carol Vogel and Clifford J. Levy, Dispute Derails Art Loans from Russia, N.Y. Times (Feb. 2, 2011), at http://www.nytimes.com/2011/02/03/arts/design/03museum.html; H.R. Rep. No. 114-141, 1–2 (2015) (“This has led, in many instances, to foreign governments declining to export artwork and cultural objects to the United States for temporary exhibition or display.”).
19 House Rep. 114-141 at 6 (citations omitted).
20 FCEJICA, supra note 1.
21 See supra note 15 and corresponding text.
22 28 U.S.C. §1605(h)(1).
23 See supra note 15 and corresponding text.
24 §1605(h)(2)(A).
25 House Rep. 114-141 at 7.
26 §1605(h)(2)(B).
27 Doreen Carvajal, Dispute over Bill on Borrowed Art, N.Y. Times (May 21, 2012), at http://www.nytimes.com/2012/05/22/arts/design/dispute-over-bill-to-protect-art-lent-to-museums.html.
28 Id.
29 Wuerth, supra note 1. Wuerth also points out that, by excluding any explicit requirement for a violation of international law, this second exception to the FCEJICA “arguably supports the groundbreaking 2016 D.C. Circuit opinion in Simon v. Republic of Hungary … [which] held that confiscations of property can themselves constitute genocide and accordingly violate international law regardless of the nationality of the party from whom the property was taken.” Id.
