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Thursday, February 22, 2018

Rubin v. Iran: Supreme Court Says Persepolis Collection Will Stay at the Oriental Institute

The University of Chicago no longer is in danger of losing ancient Iranian artifacts following Wednesday's United States Supreme Court decision in the case of Jenny Rubin, et al. v. Islamic Republic of Iran.

The university's Oriental Institute (OI) holds the "Persepolis Collection," which consists of approximately 30,000 archaeological artifacts on loan from the National Museum of Iran since 1937.

The cultural objects became the target of a civil suit after American terrorist victims tried to execute a multi-million dollar court judgment against Iran. When Iran failed to pay, the plaintiffs sought to execute their judgment by trying to acquire the Iranian artifacts at OI and others located at various cultural institutions throughout the United States.

The Persepolis Collection remained the last collection in dispute until this week's supreme court decision. Other court challenges surrounded cultural artifacts in the Chogha Mish Collection at OI--consisting of clay seal impressions excavated in the 1960's--and the Herzfeld Collection--consisting of 1200 artifacts originally purchased by The Field Museum in Chicago in 1945. These contests were resolved prior to the supreme court case. The high court noted, "The Chogha Mish Collection has been removed from the territorial jurisdiction of the federal courts, and the Court of Appeals for the Seventh Circuit determined that the Oriental Institute Collection and Herzfeld Collection are not property of Iran. See 830 F. 3d 470, 475–476 (2016). Petitioners do not challenge that decision here."

The plaintiffs/petitioners suffered from bomb attacks in Jerusalem in September 1997, carried out by the terror group Hamas. The victims sued Iran, designated by the U.S. as a state-sponsor of terrorism and a supporter of Hamas, in federal district court in Washington, DC, applying the Terrorism Risk Insurance Act of 2002 (TRIA). After Iran failed to appear at the courthouse, the judge in 2003 entered a default judgment, awarding the petitioners $71.5 million.

Usually a foreign government cannot be sued, but there are exceptions to the rule like 28 U.S.C. § 1605A of the federal Foreign Sovereign Immunity Act (FSIA), which allows a lawsuit against a designated state sponsor of terrorism such as Iran. The plaintiffs/petitioners sued Iran under an older version of this law, but in 2008 the DC federal district court converted the judgment against Iran to one that qualifies under § 1605A.

In addition, usually a foreign government's assets are immune from attachment or execution. To secure the money judgment that Iran refused to pay, the plaintiffs/petitioners argued that they could attach Iranian assets located in the U.S. under an exception to the rule, specifically 28 U.S.C. § 1610(g)(2), which permits a victorious litigant to take control of [a]ny property of a foreign state, or agency or instrumentality of a foreign state….” But in a unanimous 8-0 decision (Justice Elena Kegan did not take part in the case), the U.S. Supreme Court said the petitioners could not do this because § 1610(g) does not strip immunity from the Persepolis Collection, which is the property of a sovereign.

Justice Sotomayor, writing for the nation's highest court ruled, "Out of respect for the delicate balance that Congress struck in enacting the FSIA, we decline to read into the statute a blanket abrogation of attachment and execution immunity for [FSIA] §1605A judgment holders absent a clearer indication of Congress’ intent." The supreme court's opinion explained:
... The issue presented in this case is whether certain property of Iran, specifically, a collection of antiquities owned by Iran but in the possession of respondent University of Chicago, is subject to attachment and execution by petitioners in satisfaction of that judgment. Petitioners contend that the property is stripped of its immunity by another provision of the FSIA, §1610(g), which they maintain provides a blanket exception to the immunity typically afforded to the property of a foreign state where the party seeking to attach and execute holds a §1605A judgment. 
We disagree. Section 1610(g) serves to identify property that will be available for attachment and execution in satisfaction of a §1605A judgment, but it does not in itself divest property of immunity. Rather, the provision’s language “as provided in this section” shows that §1610(g) operates only when the property at issue is exempt from immunity as provided elsewhere in §1610. Petitioners cannot invoke §1610(g) to attach and execute against the antiquities at issue here, which petitioners have not established are exempt from immunity under any other provision in §1610. 
With respect to the immunity of property, the FSIA similarly provides as a default that “the property in the United States of a foreign state shall be immune from attachment arrest and execution.” §1609. But, again, there are exceptions, and §1610 outlines the circumstances under which property will not be immune. See §1610. For example, subsection (a) expressly provides that property “shall not be immune” from attachment and execution where, inter alia, it is “used for a commercial activity in the United States” and the “judgment relates to a claim for which the foreign state is not immune under section 1605A or section 1605(a)(7) (as such section was in effect on January 27, 2008), regardless of whether the property is or was involved with the act upon which the claim is based.” §1610(a)(7).
Throughout the FSIA, special avenues of relief to victims of terrorism exist, even absent a nexus to commercial activity. Where the FSIA goes so far as to divest a foreign state or property of immunity in relation to terrorism-related judgments, however, it does so expressly. See §§1605A, 1610(a)(7), (b)(3), (f)(1)(A); §201(a) of the TRIA. Out of respect for the delicate balance that Congress struck in enacting the FSIA, we decline to read into the statute a blanket abrogation of attachment and execution immunity for §1605A judgment holders absent a clearer indication of Congress’ intent.
A chronicle of the lengthy history of Rubin v. Iran can be found here.

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