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Cultural Exchanges, Art Exhibits, Chabad, and Russian Boycott: Solving a Problem that Does Not Exist

Subject: Chabad/Schneerson/ Museums/Boycott/Immunity
From: Greg Guroff <guroffg@fiae.org>
Date: Tue, 29 Mar 2011
(For identification purposes only: President, Foundation for International Arts and Education)

Russian Embassy in Washington, D.C."The more things change, the more things stay the same" is often more true than not. We are in a fracas with the Russian Federation's Embassy and Ministry of Culture over a problem that really does not exist, but has been created by a misunderstanding and confusion about American law. It has connected two issues that are in fact only tangentially connected. It has made it extremely difficult for the American side to propose solutions to a problem which most believe does not actually exist.

In this case it is the current storm over a US District Court's decision to accord a default judgment to the Chabad over a dispute concerning a set of books left in Russia by Rabbi Schneerson in 1917 and subsequently nationalized, and an archive of materials left in Poland in the late 1930's where the family had sought refuge after the Bolshevik takeover, which was seized by the Nazis and subsequently saved from probable destruction by the Soviet army along with millions of other confiscated documents and stored since then in the Russian Military Archive. The RF Embassy and the Ministry of Culture have reacted by arguing that the US could no longer protect Russian art treasures in the US and started to cancel forthcoming Russian loans to US museums and recently have begun attempts to recall loans and exhibit that are already in the US. It is hard to understand the mental gymnastics used to connect these two unrelated issues.

To lay my cards on the table, I should from the outset say that I currently run a foundation that deals almost exclusively with art exhibitions to and from the countries of the former Soviet Union. We are not expecting anything from Russia until 2012. In addition when I was in the US Government, first in our Embassy in Moscow and then back in Washington, I was involved in several efforts to resolve the dispute between the Russian Government and the Chabad. When Chabad filed suit in the 9th Circuit, I actually helped organize the legal defense team for the RF and participated in that process for nearly five years. In many ways, this was a complete debacle there was little communication between the lawyers and the Ministry of Culture, and the Ministry was constantly attempting not to pay its own lawyers.

After five years, the RF decided to walk away from the case and declare Sovereign Immunity. The court decided to award a default judgment to the Chabad. In February, Chabad filed a status report with the court, which the RF seems to have interpreted as a court order­which it certainly is not.

I believed from the outset a negotiated settlement was quite possible, and still believe that the Chabad dispute has a rational solution­but I may well be alone. But as time dragged on the positions on both sides hardened and no talk of negotiation seemed possible. I

Now to the case at hand.

US legislation on immunity from seizure (more specifically 22USC2459. ­ Immunity from seizure under judicial process of cultural objects imported for temporary exhibition or display) has been in effect for nearly 45 years. It was originally adopted to protect a Russian exhibition containing impressionist works from the Shchukin-Morozov collections (which had been nationalized and housed in the Hermitage and Pushkin Museums), but applied to all foreign art exhibits temporarily on display in the US. It is a rigorous process, in which the State Department determines that a given exhibition is of cultural significance and in the national interest to show, and which results in the State Department publishing a notice in the Federal Register with its recommendations to the courts not to seize the "immunized" exhibit. For nearly 45 years, the courts have held that they do not have jurisdiction when a case is filed, and thus no case save one has ever made it into courts. The case (the Magness Case) resulted in a default judgment due to the failure of the American organizers to follow procedures­and it was later dismissed on appeal. If a case is filed, the organizers should inform the State Department (and the Department of Justice) who should file a brief with the court to defend and explain the specific legislation protecting art exhibitions.

The great irony is that art exhibitions being show temporarily in the US are better protected than any other non-diplomatic materials. If I were in the position of the RF, I would be looking at all property other than exhibitions, but for some reason they are concerned about the best-protected items.

Over the years, similar cases have arisen, and in each case after a great deal of huffing and puffing it became clear that art exhibitions were virtually impossible to seize. The State Department position has generally been that "immunizing" an exhibit does not change its legal situation at home, and that if there are claimants they should litigate their cases in the country concerned. Each time that a case arises, whether it is the Magness family heirs to a Petersburg piano factory or heirs to the Shchukin ­Morozov collections, a new generation of officials in the Russian Embassy or the Ministry of Culture act as if the world has changed and the sky is falling in, while in fact nothing has changed. This time it is being carried to outlandish extremes.

Not only are the implications of the original court decision being misunderstood and the "status report" filed by the Chabad seen as a court order, the past is also being misrepresented. References are being made to the Schiele case, which is not analogous because the works did not have US "immunity" but only New York State protection. Reference is also made to the fact the British resolved a situation by adopting legislation­which is in fact less comprehensive than the US laws and hastily adopted a few years ago and has many more exceptions than the US Code.

US immunity statutes and procedures are, in my judgment, the most comprehensive I know of. The only thing that they do not contain is the word "guarantee" because we have a separation of powers, and the Executive cannot guarantee the actions of the courts. However there are 45 years of legal precedents to suggest that the courts will honor the Immunity Legislation. Moreover, there is no reason to believe that the courts are opponents of the Executive Branch, and have in every case acceded to the briefs filed by the Department of Justice. There is no reason to believe that anything has changed.

The fact that the Russian Ministry of Culture has declared that "force majeure" circumstance exist for the "boycott" doesn't make it so. Recently the Embassy here sent its heavy hitter to face down the little Museum of Russian Icons in Clinton Mass. to force them to return an exhibit of icons from the Rublev Museum. The Museum contended that the icons were covered by US immunity legislation and notices, and that moreover that a memo from one mid-range official in the Ministry of Culture to the Rublev Museum Director did not constitute a formal, acceptable Declaration of Force Majeure­that there have to be in addition some objective criteria for such a declaration. The lawyers for the Museum describe the behavior of the Russian officials as abusive, threatening and bullying­not the best way to make a point and to make friends. In the end, the Museum may be intimidated into closing the exhibit prematurely.

To conclude, art exhibitions seen by thousands of Americans are one of the best means to bring awareness and appreciation of each other's cultures. 2011-2012 are supposed to be the years of Russian-American cultural cooperation. This ill conceived and unjustified boycott is hardly the way to start this year out. Russian art (and all foreign art) in the US for temporary exhibitions is as safe today as it has been for the past 45 years. No matter how many times, officials repeat that things have changed it does not change the fact that nothing has changed in reality.

As I understand it, an American team from the State Department has been prepared to travel to Russia to discuss and negotiate the matter, but the Russian side has delayed the visit until it can figure out its own position. The hope is that a mutually acceptable formula can be found, which, in my judgment, might be no more than for the State Department to recognize Russian concerns and commit to being more proactive in support and defense of American legislation on "immunity" from seizure for temporary art exhibitions.

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