This post has been corrected. See note below.
Russia's ban on art loans to American museums has lasted more than two years now -- a strange and disruptive boomerang effect of a rancorous legal battle between the Russian government and the Chassidic Jewish group, Chabad.
The heat in the legal fight -- which itself has nothing to do with art or museums -- intensified Wednesday when a federal judge in Washington declared the Russian government in contempt of court for ignoring his 2010 order that it must return a disputed massive archive of historic religious books and manuscripts known as the Schneerson Collection to the New York-based Chabad. The judge imposed fines of $50,000 a day.
The Russian Embassy responded with a written statement saying that the Schneerson Collection is "part of Russia's national heritage and cannot be [returned]." It said the sanctions imposed by U.S. District Judge Royce C. Lamberth -- who specified that the fines should be paid to Chabad -- violate both international and U.S. laws granting legal immunities to foreign nations.
An embassy spokesman said "there is no change in the position" regarding the art-loan ban.
Russia imposed the ban late in 2010; it has contended that artworks sent to the United States could be in jeopardy of legal action from Chabad, which might claim them as collateral or compensation for the Schneerson Collection.
Seth Gerber, a Los Angeles-based attorney for Chabad, said Wednesday that the ban "reflects a punitive policy of collective punishment against the American people. There's no justification for Russia's act."
Gerber noted that U.S. law specifies that foreign-owned art loaned for display in nonprofit American museums cannot be seized if the U.S. museum has first gotten an easily obtained federal permit, and that Chabad specifically has affirmed in court that it will not go after Russian artworks.
In 2011, hoping to defuse the art-loan ban, Lamberth issued an order at Chabad's request, banning any claims against touring Russian cultural property aimed at furthering the group's leverage in the Schneerson Collection case.
The J. Paul Getty Museum and Los Angeles County Museum of Art were among the U.S. institutions whose planned exhibitions developed sudden gaps during 2011 when long-planned loan agreements with Russian national institutions such as the State Hermitage Museum of St. Petersburg fell through because of the ban.
LACMA had to make do without about 30 Russian-owned objects it had lined up for "Gifts of the Sultan: the Arts of Giving at the Islamic Courts" -- including a lavish, silk-embroidered Turkish tent that was to have been one of the display's centerpieces.
New York’s Metropolitan Museum of Art was affected as well, and responded by stopping loans to Russian institutions as long as the ban remains.
"It’s a tragic thing. Everyone is losing out," Met spokesman Harold Holzer said. "There's been no thaw and [Wednesday's sanctions decision] is not going to make it easier."
Holzer said Met officials have had talks with their counterparts at Russian museums and with U.S. State Department officials, hoping the ban can be lifted. "They've been extremely helpful and understanding, but there's been no breakthrough."
Gerber said he hoped that the contempt ruling, with fines amounting to $1.5 million a month, might prompt Russian officials to "take a second look at their pre-scripted answers to the situation."
Some experts had hoped that a bipartisan bill submitted in Congress early last year at the behest of American museums might give Russia a legal pretext for lifting the art-loan ban, even though the proposed law wasn't directly germane to the dispute over the Schneerson Collection.
But after quickly passing in the House, it faltered in the Senate without coming to a vote. The bill aimed to close a loophole in a 1965 law that protects foreign art loans to U.S. museums from attempts at legal seizure, even when their ownership is in dispute. The thinking was that Russia could point to a strengthened law against art seizures as a reason for lifting the loan ban, while making no concessions to Chabad.
Boston attorney Nicholas O’Donnell, in his blog, the Art Law Report, wrote recently that the bill had stalled in the Senate Judiciary Committee despite "no publicly known opposition." With a new Congress now in session, he said, it would have to be reintroduced from scratch in both chambers.
In levying fines against Russia and holding it in contempt of court, Lamberth rejected U.S. government lawyers' argument that such a ruling "would damage the United States' foreign policy interests, including its diplomatic efforts to reach a settlement on Chabad's behalf," and hinder government efforts to end the Russian art-loan ban.
The judge's ruling said it is unlikely U.S. interests will suffer because Russia already has "steadily resisted all legal and diplomatic efforts" in the Chabad case over many years, and there's no reason to believe that imposing sanctions would make things worse.
Lamberth wrote that "the fears purportedly motivating Russia's [art-loan] moratorium were legally unfounded, as such items would be immune under federal law" from any attempts to seize them.
The Russian ban only involves government-owned works. Alec Guroff, who heads the Foundation for International Arts and Education, a Maryland-based nonprofit that organizes exhibitions of art from Russia and other former Soviet bloc countries, said that a touring exhibition of paintings by Nicolai Fechin, a 20th century Russian artist who emigrated to the United States in mid-career, includes pieces loaned from private Russian collections, but not from government museums. It's currently at the Museum of Russian Art in Minneapolis and opens Feb. 9 at the Frye Art Museum in Seattle.
"This ruling certainly won't make it any easier to convince the Russians to lift the embargo," Guroff said.
The case that sparked the art-loan ban stems from Chabad's decades-long effort to recover a library of 12,000 books and manuscripts and 25,000 pages of other religious writings that the Schneersons, a dynastic line of Chassidic rabbis from the Russian town of Lubavitch, began amassing in the 1700s. Russia's new Bolshevik rulers expropriated part of the collection in 1917-18; the dynasty subsequently moved to Poland before fleeing to America when Germany invaded at the start of World War II. The remainder of the religious trove was left behind, falling first to the Germans, and then to victorious Soviet forces.
For the record, Jan. 17, 2:30 p.m. An earlier version of this post said that Chabad attorney Seth Gerber acknowledged that the fines imposed against Russia were unenforceable. Gerber says that is not the case, and that he thinks the fines can be enforced under provisions of a U.S. law, the Foreign Sovereign Immunities Act, which in certain instances allows for seizing the property of foreign nations when it is on U.S. soil and is "used for a commercial activity in the United States."
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