02 Nov 2017

The Iranian artefacts dispute

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The US Supreme Court has agreed to hear a case involving the long running dispute involving the seizure of Iranian artefacts.

In 1997, American citizens were the victims of a terror attack in Israel when three suicide bombers from the Palestinian extremist organisation, Hamas, blew themselves up. A number of US citizens and their families sued Iran (on the basis of claims that Hamas was financed by Iran). A default judgment of US$71 million was made against Iran by the federal district court of Washington D.C.

The challenge was to enforce the judgment. The victims registered the judgment in Illinois for the purpose of attaching Iranian artefacts housed in the University of Chicago’s Oriental Institute and the Field Museum. The plaintiffs identified three specific collections; the Persepolis and Chogha Mish Collections at the Oriental Institute and the Herzfeld Collection at the Field Museum. Some of the items in the Persepolis Collection include around 30,000 clay tablets and fragments of some of the oldest writings in the world, which were loaned to the Oriental Institute in 1937 for research, translation and cataloguing.

The plaintiffs’ argument was that these artefacts are subject to attachment under the US Foreign Sovereign Immunities Act (FSIA), a law which restricts when foreign entities can be sued in US courts. The plaintiffs relied on two provisions in the FSIA:

(i) the artefacts are used for a commercial purpose and so do not benefit from attachment immunity (section 1610); and 
(ii)
the “blocked assets” provision under the Terrorism Risk Insurance Act 2002 which provides that the blocked assets of a terrorist organisation (including those of any agency or instrumentality of that terrorist party) are subject to execution to satisfy a judgment obtained under the FSIA’s terrorism exception.

The museums claimed they owned the artefacts, whereas the plaintiffs claimed that Iran does.

A federal judge held that Iran had not used the artefacts for commercial activity (and so had not triggered the terrorism exception in section 1610 of the FSIA). The victims appealed the judgment by arguing that the museums’ study of part of the collection had triggered this exception.

On appeal, the victims did not find favour with the Seventh Circuit Court of Appeals, which agreed with the federal judge and found that the foreign state itself (in this case Iran) must use the artefacts for commercial activity. The museums had undertaken conservation and reparation work to the artefacts and these research activities were not deemed to have a commercial element, and so it would not be possible to seize such property belonging to a foreign state located in the US.

This issue has now been appealed to the Supreme Court and on 27 June 2017 it agreed to hear the case, to decide what assets are immune from seizure under the FSIA. It is understood that the court will hear arguments and decide the case in its next term, which begins in October 2017.

The case is particularly noteworthy as it could have significant consequences as to how the seizure of foreign assets (including artefacts) in the US is viewed.

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