Cuban Art and Associated Legal Issues - Case Study Example

Cuban art and associated legal issues For many years since the US imposed an embargo with Cuba, it has been rather hard to gain access to Cuba or itsart treasures. The average American could not easily travel to Cuba and if they were to use a third country as a point of origin to enter Cuba, they risked being slammed with hefty fines. From a legal point of view, the issue of buying art work from Cuba was exempted from the embargoed goods since books and art work were protected under the freedom of expression act enshrined in the US constitution. As a result, there has been a vibrant business of artwork and books from Cuba in Miami (Walter, 1997). On the same legal issue, during the tenure of the US president George W Bush, there was a tightening of restrictions around the Cuba embargo and it became a bit harder for US citizens especially to access artwork from Cuba freely as had been the case before. This was also as a result of lobbying by some members of families who had had their art confiscated by the Fidel Castro regime when he took power (Yulia, 2010). This is particularly true with the case of the Billionaire Fanjul family that had a vast collection confiscated and later sold by the Cuban government. They lobbied to have anyone trading in their artwork declared to be in violation of trading with the enemy laws put in place to prevent trade with Cuba but under which artwork was exempted. Another law that the Fanjuls and others are relying on in their quest to recover their lost artwork is the Helms- Burton Act which blocks people that deal in Cuban confiscated property and their immediate families from entering the United States and also opens them up to payment of potential damages. In this case there is the Argentinean art dealer Bruno Sciaoli whom they have ascertained to have in his possession one of their lost art pieces known as the Malaga Porta painted by Joaquin Sorolla y Bastida. This Act was however not acceptable to the European Union which then passed a resolution which prevents its enforcement within the EU. The issue of the law not being enforceable in the EU arises from the fact that the EU recognizes Cuba as a sovereign nation as well as its decision to nationalize assets which includes the confiscated art work. In the US its embargo laws prohibit trade in the confiscated properties from Cuba. If the state department tries and finds the art dealer Bruno Sciaoli guilty, then they will have opened a whole new era in the sales of this art works. It will have complicated any sales of artwork sourced from Cuba which is going on at present unfettered in the US. The primary difference between the claims for artwork that was looted by the Nazis and the claims for the artwork that was nationalized by the Cuban Communist government is in the detail. To start with, the Nazi government has never been accepted as an official government by either the United States or by the other Allies. In 1943, there was the London decYuliation which stated as invalid all transfers of property that were completed by the Nazi administration. The reason for making this decYuliation was so as to cancel and disown any looting, thefts or transfers of property, done by the Nazi command. This means that, there is a long standing guiding principle which validates the notion that all acts committed by the Nazis were revoked and disavowed by German governments that have come forth since (Mari-Claudia, 2009). However, the situation in former Communist countries is not that black and white. After the fall of Communism, the former Eastern bloc countries have taken different approaches to dealing with the legacy of the Communist era. Some have created entirely new legal systems, and explicitly disavowed the prior politics, while others, such as Russia, have moved in a different political direction, but have not taken the position that the prior government’s acts should be explicitly nullified or disavowed. By the same token, some of these countries such as the Czech Republic or the former Baltic states—Estonia, Latvia and Lithuania— have developed very expansive restitution and compensation regimes to deal with the Communist nationalizations, while other countries refused to do so These types of Restitutions once put in place, and the Compensation Commissions usually are the only sources of recompenses that citizens of any country have that can tackle nationalizations which were done due to a Communist government. This is to say that if nationalizations done by the Communist states of these countries have not been fully discarded by the current administrations of the said countries; or a complete regime change has not taken place which would help with those acts being nullified, then it means that those countries official acts of state should not be challenged by courts of other countries (Mari-Caludia, 2009). Yulia (2010) comes from a line of art collectors who have lost artworks that they are still trying to recover. According to her, law has put special restriction on every government by prohibited them to own a private property. However, the government of Fidel Castro has failed to confer to this law. They confiscated private property of wealthy art owners. Hence, giving rise to illegal actions and justifications (Yulia, 2010). She explains that the main reason for the art sales and seizures was especially shown when the Soviet Union finally became bankrupt and as such stopped putting in billions of dollars which they had been putting into Cuba up the 1990s which led to the collapse of the island economy (Yulia, 2010). This forced the hand of the Cuban government and they started the sale of many of the confiscated artworks. A majority of these artworks ended up on the lists of auction houses and museums in UK, and other countries especially in Europe (Yulia, 2010). A lot of Artwork that was looted in Cuba is unfortunately tangled up in a lot of corruption. There has been a lot of increase in the interest in pre-1959 Cuban artwork. This has in turn spawned an industry dominated by forgeries. Examples of works of art that have been heavily forged include work by Wilfredo Lam, and Amelia Peláez because of the huge number of the works involved, we can say that forged Cuban artworks is perpetrated by organized networks that operate on an international level. As can be expected, forgeries tend to reduce confidence of possible buyers which as a result also lowers the Cuban arts values. As a result any art owners, who may need to recover their art work and then sell them to use the money, may find the costs to be daunting enough as to even prevent them from the recovery process. Was it that the works of art were found within the United States, and then the chances of winning a lawsuit against the person(s) currently owning the works would be questionable. This is because as the status quo currently is, even without diplomatic relations, the U.S. government officially recognizes the Cuban government. This officially means that, any expropriations of property or nationalizations that happened or were carried out by that administration against its own citizens can be considered to be official “Acts of State,” which due to the concepts of individual sovereignty, foreign courts generally do not question or second guess. The idea behind this “Act of State” doctrine is that under principles of international law, one country should not be standing in judgment of the official acts of another government (no matter how much they may disagree with them), if those acts were taken within the countries’ borders and affected its own citizens. Therefore, if the Cuban government expropriated an artwork that belonged to an individual who was a Cuban citizen at the time of the expropriation, the Act of State doctrine would generally preclude an American (Walter, 1997). The large number of players involved only helps to make the process of identifying the artwork very difficult. It starts from the initial players who are the people that physically looted the artworks or did the looting by proxy. Some Archeologists, in the process of conducting their research in their digs have also at times made away with artifacts they have found. During conflict and war, soldiers been known to have taken for their governments and for themselves the spoils of war they got and this includes the artworks. Nazi and Communist Juntas plundered the homes and offices of Jews during the Second World War plus those of the bourgeoisie, enemies of the State, taking many precious works. These thefts were often done using the legal frameworks they made for themselves. According to Tania (2009) in their quest to illegally acquire the artworks some professional thieves involved are also involved. Museums gain more prestige through competition between them to see which one increases the values of their artwork collections. In many cases, museums claim to have acquired disputed artworks in good faith but which later turns out to be stolen. In most cases the museums are reluctant or they can out rightly refuse to give back such items to their rightful owners or their offspring. They then shift the blame to art dealers who sell them stolen artworks. In turn this tends to cause delays in the restitution process because of lengthy legal action against such dealers and their respective galleries. The resultant legal representation expenses can at times prove to be so high for the original owners and their heirs such that that upon restitution, they have then to sell the artwork in order to help cover the legal costs. Another issue is the Insensitivity shown to the looted parties in their quest for justice. According to Tania (2009), a case in point is the Guggenheim’s European Representative who once lamented, “I always think it’s a shame when works of art are taken away” In most instances where the questionable artwork cannot be publicly displayed for viewing pleasure, then it is usually stored in private safe deposit boxes and vaults in respectable banks all over. Switzerland is known to be the most notorious in terms of accepting claims of ownership without confirming the evidence. They have been accused and even proven to have facilitated the sales of many artworks that were stolen by the Nazis during the WWII. The Nazi conduct can only be classified as being quasi-legal acquisitions as reported by a search conducted by Marc (2003). Currently, steps that people who lost their artworks in Cuba can follow in looking for and recover their art. Although suing in a U.S. court may not be tenable at present for the return of artwork. However there are a number of ways to go about it that can be taken to try and find a solution. A person claiming for an artwork must first be able to make out what he is claiming. A generalized description is usually not enough and a claimant must prove to know exactly what the artwork is which he is seeking and the more the details then the better fro provenance purposes. Insurance policies and bills of sale or even catalogue rasisonné entries which describe the artwork and the claimant as the true owner are perfect. Possession of family pictures that clearly show the painting mounted on a wall in the claimants house are also good sources of evidence of the artworks description and also of the claimants ownership. There is another path to follow for those who are aware of what exactly it is that are missing. This entails contacting the major auction houses through their restitution departments and informing them of your claim. You can them update them on the details and advise them concerning your art collection or the specific painting stolen or confiscated in Cuba. A lot of the auction houses always keep updated lists and they can then check form these lists before they can accept for auction any artwork that matches descriptions you have provided to them. As things stand now, it is legal to undertake to sell an artwork that had been nationalized by the Cuban government. This however does not mean that auction houses are not aware of these issues and are actually however slowly taking steps towards addressing the issues. They also consider the ethics involved in selling such artwork and they put a great emphasis on this. For this auction houses to get to this point, they have also been in situations that necessitated them to rethink their positions. For instance the de La Torre family at one time proceeded to sue Sotheby’s demanding they facilitate the return of the Mariano painting back to them. They eventually ended up having to settle the case. In another case, the Fanjuls acted a bit differently when they took a different approach to their disagreement with Sotheby’s. Title IV of the Helms-Burton Act, denies U.S. visas to people found to have taken part in the trafficking of confiscated property that is being claimed by a U.S. citizen. The Fanjuls used this as their basis when they filed their complaint against Sotheby’s with the State Department. The complaint stated that Sotheby’s had engaged in a describable pattern of “doing the business with the enemy” and in trafficking in confiscated Cuban property (Tania, 2009). After this case, Sotheby’s committed itself to being more sensitive regarding the issue of nationalized Cuban art. They also committed themselves to taking steps to sell avoid the sale of any nationalized artworks. Interestingly Christie’s also followed this example and has also committed to doing the same. What really complicates the whole thing is the propensity for members of the art world to participate in the trafficking of looted art with no qualms. There is also the tendency by some appraisers who despite recognizing artworks as being stolen ignore their suspicious origins when evaluating the items. Art galleries and auction houses also ignore the questionable artworks and go on to appraise their authenticity only as opposed to the accuracy of their ownership. Employees of the art world are supposed to conduct research into well-known databases of stolen and missing art listed therein as a prerequisite to proceeding with transactions before them. This is however not how things are done in the vast and hard to regulate art world where big money and greed are the main currencies. As it is the case in almost all sectors where large figures are involved, corrupt practices are very hard to curtail totally and questionable transactions will always exist. Pinpointing the exact locations of missing or stolen art is never an easy task and it often needs help from art experts. Willi Korte and Clemens Toussaint are the two most pre eminent experts in art related investigations. Dr. Korte is an art historian and attorney who originate from Germany. His area of specialty is in World War II military archives. He is credited with the founding of the Holocaust Art Restitution Project (HARP). According to Tania (2009), he is so successful that his exploits have led to him being nicknamed “No Shit Sherlock” and “Indiana Jones.” He has tracked and located the famous works such as “Olevano” by Alexander Kanoldt. His work made it possible for the National Gallery in Berlin to accept that “Olevano” had been sold under duress in 1935. This acknowledgement led to the return of the artwork to its original owner’s heirs (Marc, 2003). The other famous art investigator is Clemens Toussaint who also happens to come from Germany and is also an art historian. The difference between him and Willi Korte is mainly his approach to tackling stolen art happens to be similar to that of genealogical research. He has a noted obsession with unraveling the lives of the victims of looting and the lives of the thieves as well. Toussaint is famous for his famed policy of not cutting any deals with families he ties together with a Nazi background (Marc, 2003). References Tania, C. M., 2009. Identifying and locating looted artworks from Cuba. [Available Online] http://Taniaconsultants.com/wp-content/uploads/2012/05/Identifying-and-Locating-Looted-Artworks-from-Cuba1.pdf accessed on 5th November 2012 Walter V. R,.1997. “US tracked WWII influx of looted art,” Boston Globe, Masachusets.[Available Online] http://www.museum-security.org/lootedart.html accessed on 5th November 2012 Marc, S. 2003. The devil and the art detective, Art Auction. [Available Online] http://www.marcspiegler.com/Articles/ArtAndAuction/ArtAuction_2003_07_Toussaint.pdf accessed on 5th November 2012 Yulia L, .2010. Seized Cuban Art. Available at http://www.artkabinett.com/ak-file/seized-cuban-art-yulia-Yulia. [accessed November 5, 2012]. Mari-Claudia, J. 2009. Restituting looted Cuban art, ASCE [Available Online] http://www.ascecuba.org/publications/proceedings/volume19/pdfs/jimenez.pdf accessed on 5th November 2012 Read More