IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JENNY RUBIN, et. al., ) Plaintiffs Judgment Creditors ) v. ) No. 03-CV-9370 THE ISLAMIC REPUBLIC OF IRAN, ) Judge Blanche M. Manning et. al., ) Magistrate Judge Martin C. Ashman Defendants - Judgment Debtors ) v. ) THE UNIVERSITY ) OF CHICAGO, et. al., ) Citation Third-Party Respondents ) BRIEF AMICUS CURIAE OF THE NATIONAL IRANIAN-AMERICAN COUNCIL IN SUPPORT OF THE DEFENDANTS - JUDGMENT DEBTORS RENEWED MOTION TO DECLARE THE PROPERTY EXEMPT BABBACK SABAHI MIRIAM R. NEMETZ DANIEL HERRERA MARC KADISH Mayer Brown LLP Mayer Brown LLP 1909 K St., NW 71 S. Wacker Drive Washington, DC 20006 Chicago, IL 60606 (202) 263-3000 (312) 782-0600 Counsel for Amicus Curiae

TABLE OF CONTENTS Page INDEX OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE...1 BACKGROUND...2 SUMMARY OF ARGUMENT...3 ARGUMENT...4 I. A Strong Public Policy Reflected In Both International And U.S. Law Favors The Preservation Of Cultural Property...4 II. The U.S. And Other Countries Strongly Support The Sharing Of Cultural Property Among Nations...10 III. The Commercial Activity Exception To Foreign Soveriegn Immunity Should Be Construed To Exclude Activities Relating To The Exchange Of Cultural Property...14 CONCLUSION...16 i

TABLE OF AUTHORITIES CASES Page(s) Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003)...2 Lawrence v. Texas, 539 U.S. 558 (2003)...14 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992)... 14 Roper v. Simmons, 543 U.S. 551 (2005)...14 Seminole Nation v. United States, 316 U.S. 286 (1942)...9 STATUTES 16 U.S.C. 470 et seq...9 19 U.S.C. 2601 et seq....8 22 U.S.C. 2459...11 25 U.S.C. 3001 et seq...9 28 U.S.C. 1602 et seq....passim N.Y. Arts & Cult. Aff. Law 12.03...13 R.I. Gen. Laws 5-62-8...13 Tex. Civ. Prac. & Rem. Code 61.081...13 TREATIES UNIDROIT, Convention on Stolen or Illegally Exported Cultural Objects (1995) (June 24, 1995, 34 I.L.M. 1322)...8 United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38 (Dec. 2, 2004)...6, 15 UNESCO, [Florence] Agreement on the Importation of Educational, Scientific and Cultural Materials (June 17, 1950, 131 U.N.T.S. 25)...10 UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Nov. 14, 1970, 823 U.N.T.S. 231)...passim ii

UNESCO, [The Hague] Convention for the Protection of Cultural Property in the Event of Armed Conflict (May 14, 1954, 249 U.N.T.S. 240)...7 UNESCO, Convention on the Protection of the Underwater Cultural Heritage (2001) (Nov. 6, 2001, 41 I.L.M. 40)...8 UNESCO, Convention Concerning the Protection of the World Cultural & Natural Heritage (November 23, 1972, 27 U.S.T. 37)...7 UNESCO, Declaration Concerning the Intentional Destruction of Cultural Heritage (2003) (Oct. 17, 2003, UNESCO, Records of the General Conference, 32nd Session, Vol. 1, Resolutions, p. 62)...8 FOREIGN LAWS Canada Code of Civil Procedure, R.S.C., art. 553.1...11 Foreign Cultural Objects Immunity From Seizure Act, R.S.M., ch. F140 (1987)(Can.)...11 Foreign Cultural Objects Immunity From Seizure Act, R.S.O., ch. F.23 (1990)(Can.)...11 Law and Equity Act, R.S.B.C., ch. 253, 55 (1996)(Can.)...11 Law No. 94-679 of Aug. 8, 1994, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Aug. 10, 1994, p. 11,668...11 Tribunals, Courts and Enforcements Act, 2007, pt. 6 (Eng.)...11 OTHER AUTHORITIES Charlene A. Caprio, Artwork, Cultural Heritage Property, and the Foreign Sovereign Immunities Act, 13 INT L J. OF CULT. PROPERTY 285 (2006)... 5, 10, 14, 16 Letter from Esfandiyar Rahim-Mashaee, President of the Iranian Cultural Heritage, Handicrafts and Tourism Organization, to Koïchiro Matsuura, General Director of the UNESCO (Mar. 16, 2008)...6 Muhammad Dandamayev, Persepolis Elamite Tablets, Encyclopedia Iranica...3 Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559 (1995)... 4, 10, 16 H.R. Rep. 94-1487 (1976)...14 Arash Hadjialiloo, Background on Persepolis Artifact Case, Special Projects and Campaigns, National Iranian American Council (June 27, 2008)...3 iii

Alexander Kaplan, The Need for Statutory Protection From Seizure for Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum Exhibitions, 7 J.L. & POL Y 691 (1999)...14 Yin-Shuan Lue, Polly Clark & Marion R. Fremont-Smith, Countering a Legal Threat to Cultural Exchanges of Works of Art: The Malewicz Case and Proposed Remedies, Hauser Center for Nonprofit Organizations, Harvard University, Working Paper No. 42 (Dec. 2007)...11, 13 John H. Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339 (1989)...10, 16 S. REP. NO. 89-747, H.R. NO. 89-1070, 1st Sess. (1965)...12 S. REP. NO. 97-564, 2d Sess. (1982)...9 Carol Vogel, Ciao to a Met Prize Returning to Italy, N.Y. TIMES, Jan. 11, 2008...10 James Wawrzyniak, Rubin v. The Islamic Republic of Iran: A Struggle for Control of Persian Antiquities in America, Harvard Law School Student Scholarship Series (June 21, 2007)...3 Matthias Weller, Immunity for Artworks on Loan? A Review of International Customary Law and Municipal Anti-Seizure Statutes in Light of the Lichtenstein Litigation, 38 VAND. J. TRANSNAT L L. 997 2005...11 iv

INTEREST OF THE AMICUS CURIAE The National Iranian-American Council ( NIAC ), founded in 2002, is a non-partisan, non-sectarian, and non-profit organization dedicated to promoting Iranian-American participation in American civic life. The NIAC endeavors to advance the interests of the Iranian- American community with respect to civic, cultural and political issues; to supply the resources, knowledge and tools to enable civic participation and informed decision making by Iranian- Americans; and to provide the infrastructure for bridge-building across the network of Iranian- American organizations and the peoples of America and Iran. The NIAC s office is located at 1411 K St., N.W., Ste 600, Washington, DC 20005. The NIAC can be reached at info@niacouncil.org or 202-386-6325. The NIAC s constituency, the Iranian-American community, has a strong interest in the fate of the historical artifacts in dispute in this case. These artifacts have substantial historical importance and have value to both scholars and ordinary citizens seeking to understand Iranian history and culture. Even to the extent that the artifacts are legally owned by the Government of Iran, they do not fully belong just to it. They are part of the cultural heritage of all persons of Iranian descent. If Plaintiffs are permitted to satisfy their default judgment against the Government of Iran by execution against the artifacts, then the NIAC s constituency will suffer injury. Some of the artifacts would likely be sold to private collectors and become unavailable for academic study or public display possibly forever. Thus, persons of Iranian descent will lose part of their cultural heritage, to the detriment of their cultural identity. The NIAC therefore submits this

amicus brief with the goal of urging the Court to consider the cultural importance of the artifacts when interpreting the statutory provisions that will govern their disposition. BACKGROUND In September 2003, Jenny Rubin and other plaintiffs ( Plaintiffs ) obtained a default judgment against the Islamic Republic of Iran for damages they suffered when suicide bombers affiliated with the terrorist organization Hamas detonated bombs in Jerusalem. See Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 261-68 (D.D.C. 2003). Iran s liability was premised on the court s finding that Iran was actively funding Hamas s terrorist activities. The court found that Iran s support for Hamas brought Iran within the jurisdiction of the United States courts pursuant to a provision of the Foreign Sovereign Immunities Act ( FSIA ) (28 U.S.C. 1602 et seq.) that creates an exception to sovereign immunity for certain acts of extrajudicial killing. In an attempt to enforce their judgment against Iran, Plaintiffs instituted a citation proceeding in this Court against several respondents, including the University of Chicago and Gil Stein (collectively, Citation Respondents ), seeking execution or attachment of Persian artifacts, ostensibly belonging to Iran, that are currently in the Citation Respondents possession. These artifacts fall into two groups: the Persepolis Collection and the Chogha Mish Collection, which are in the possession of the Oriental Institute of the University of Chicago (collectively, Persian Artifacts ). It is undisputed that the Persian Artifacts are of substantial historical interest. 1 1 The Persepolis Collection was discovered in the 1920s and 1930s, and consists of tens of thousands of clay tablets dating to the Achaemenid Empire. In the 1930s, the University of Chicago and Iran s National Museum entered into an agreement to allow researchers to catalog 2

The Citation Respondents resisted attachment and execution, arguing that the artifacts were immune under the provisions of the FSIA governing the enforcement of judgments against foreign sovereigns. After the Court ruled that the defense of sovereign immunity under the FSIA was specific to Iran and could not be raised by the Citation Respondents, Iran entered the case in order to file a motion before this Court asserting that the artifacts were immune from execution under the FSIA. (Defendant s Renewed Motion to Declare Property Exempt, Dkt. 199.) The parties and the Court have treated this motion, which is now in abeyance pending discovery, as the equivalent of a motion for summary judgment by Iran. NIAC submits this memorandum in support of Defendant s Renewed Motion to Declare Property Exempt. SUMMARY OF ARGUMENT The Persian Artifacts form an important part of the cultural identity of persons of Iranian descent and thus qualify as cultural property. The public policy of the United States and other countries, reflected in both U.S. law and in international conventions, recognizes the special status of cultural property and support its preservation. As these laws recognize, a government s and study the collection in the United States, with the understanding that the tablets would be returned to Iran after they were studied and properly cataloged. Approximately 8,000 tablets yet to be studied remain in the United States at the University of Chicago. The Chogha Mish Collection is the product of excavations at Chogha Mish, Iran, in the 1960s and 1970s. This collection is notable because it provided evidence that humans occupied the area as far back as 6,000 B.C. The University of Chicago and the Iranian government agreed that the artifacts would be returned to Iran once studied. By 2005, the study was concluded and the artifacts were being readied for return to Iran. For further information, see Muhammad Dandamayev, Persepolis Elamite Tablets, Encyclopedia Iranica, available at http://www.iranica.com/newsite/articles/sup/ Persepolis _Elam _Tab.html; Arash Hadjialiloo, Background on Persepolis Artifact Case, Special Projects and Campaigns, National Iranian American Council (NIAC) (June 27, 2008), available at http://www.niacouncil.org/ index.php?option=com_content &task= view&id=1152&itemid=2; James Wawrzyniak, Rubin v. The Islamic Republic of Iran: A Struggle for Control of Persian Antiquities in America, Harvard Law School Student Scholarship Series (June 21, 2007), available at http://lsr.nellco.org/ harvard/students/papers/17. 3

interest in cultural property is akin to that of a trustee, which holds cultural property for the benefit of the affected people. Such property should not be subject to attachment in satisfaction of a judgment against a particular government. Public policy also favors cultural exchange among nations. In order to promote cultural exchange, the U.S. Congress and many states, as well as other countries, have adopted laws that immunize from judicial process works of art and objects of cultural significance that are imported for exhibition or study. The policy of promoting the sharing of cultural property would be undermined by permitting attachment of the Persian Artifacts here. The international consensus recognizing the special nature of cultural property, and the strong public policy favoring cultural exchange, should guide this Court s interpretation of the FSIA. In short, the Court should construe the commercial activity exception to foreign sovereign immunity to exclude activities relating to the exchange of cultural property. Because a foreign sovereign serves as the guardian or trustee of cultural property and because the importance of cultural property far exceeds its commercial value conduct relating to the loan of cultural property from a foreign country to a U.S. museum is not commercial in nature, and should not be considered so under the FSIA. ARGUMENT I. A Strong Public Policy Reflected In Both International And U.S. Law Favors The Preservation Of Cultural Property. Cultural property is that specific form of property that enhances identity, understanding, and appreciation for the culture that produced that particular property. Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 569 (1995). The importance of cultural property lies in its identification with the particular cultural group that produced it. Id. at 570. Because cultural property is so 4

closely tied to the identity of the group that created it and because future generations have an interest in such property cultural property is treated in many contexts as inalienable. Id. A government s ownership of cultural property thus is different in kind from its ownership of other types of property. In a sense, governments act as the guardians or trustees of cultural property. See Charlene A. Caprio, Artwork, Cultural Heritage Property, and the Foreign Sovereign Immunities Act, 13 INT L J. OF CULT. PROPERTY 285, 299 (2006). Many countries have formally recognized the significance of cultural property and have agreed to protect and preserve it. For example, the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereinafter, the UNESCO Convention ) (Nov. 14, 1970, 823 U.N.T.S. 231) has been ratified by 115 countries. 2 The UNESCO Convention s preamble provides that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting. The UNESCO Convention defines cultural property as property which has been designated by a state as being of importance for archaeology, prehistory, history, literature, art or science and which falls within one of several categories, including: c. products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; d. elements of artistic or historical monuments or archaeological sites which have been dismembered; 2 We understand that the Court has rejected the UNESCO Convention as a basis for preventing the attachment of the Persian Artifacts. We cite to the Convention as one of a group of conventions that establish the international policy consensus on the treatment of cultural property. 5

e. antiquities more than one hundred years old, such as inscriptions, coins and engraved seals. 3 (UNESCO Convention, art. 1.) This Convention obligates its parties to adopt a variety of measures, consistent with their domestic laws, to regulate and document traffic and trade in cultural property. The United Nations Convention on Jurisdictional Immunities of States and Their Property, 4 prepared by the United Nations International Law Commission ( ILC ) after more than two decades of preparatory work, reflects the international consensus on the treatment of cultural property in domestic litigation. Article 21 of this Convention provides that certain categories of assets shall not be considered as property specifically in use or intended for use by the State [Parties] for other than government non-commercial purposes. These protected categories include: (a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations 3 The UNESCO Convention provides the opportunity for the parties to designate cultural property as such. Article 13(d) of the Convention provides that [t]he States Parties to this Convention also undertake, consistent with the laws of each State, to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported. Relying on article 13(d) of the UNESCO Convention, and the Preservation of National Heritage Law of 3 November 1930 (Iran), the Government of Iran has recently designated Persepolis and Choga Mish collections as national heritage property under the UNESCO Convention. Letter from Esfandiyar Rahim-Mashaee, President of the Iranian Cultural Heritage, Handicrafts and Tourism Organization (ICHHTO), to Koïchiro Matsuura, Director General of the UNESCO (Mar. 16, 2008) (on file with amicus counsel). 4 GA Res. 59/38 (Dec. 2, 2004). The United States supported adoption of this Convention but did not sign it. As of December 22, 2008, 28 countries have signed the treaty, and six have ratified it, including the Islamic Republic of Iran. The treaty will come into force thirty days after the date of deposit of the thirtieth instrument of ratification. See id., art. 30(1). 6

to organs of international organizations or to international conferences; (b) property of a military character or used or intended for use in the performance of military functions; (c) property of the central bank or other monetary authority of the State; (d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale; (e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale. (Emphasis added.) Thus, the convention treats cultural property and items of cultural and historic interests as beyond the scope of judicial attachment, on par with diplomatic and military assets. Several other international conventions also provide special and protected status for cultural property. For example: The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) (May 14, 1954, 249 U.N.T.S. 240) sets forth belligerents obligations with respect to cultural property. Article 4 of the convention obligates the contracting parties to prohibit any destruction, theft, pillage, or misappropriation of cultural property. The UNESCO Convention Concerning the Protection of the World Cultural & Natural Heritage (1972), often referred to as the UNESCO Convention on World Heritage, sets up the World Heritage Committee and obligates the parties to take educational, scientific, and administrative measures to promote the protection of covered cultural property. (Nov. 23, 1972, 27 U.S.T. 37.) The United States ratified this treaty on December 7, 1973. 7

The Convention on Stolen or Illegally Exported Cultural Objects (1995) (June 24, 1995, 34 I.L.M. 1322) was adopted under the auspices of UNIDROIT to refine legal standards for trade and protection of cultural property. The purpose of this convention, as specified in its preamble, is to establish minimal legal rules for the restitution and return of cultural objects between contracting states. The UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001) (Nov. 6, 2001, 41 I.L.M. 40), according to its preamble, is intended to codify and progressively develop rules relating to the protection and preservation of underwater cultural heritage in conformity with international law and practice, including the [1970] UNESCO Convention..., the [1972] UNESCO Convention..., and the United Nations Convention on the Law of the Sea.... Finally, the UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage (2003) (Oct. 17, 2003, UNESCO, Records of the General Conference, 32nd Session, Vol. 1, Resolutions, p. 62) states that [t]he international community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the succeeding generations. Id., art. I. The United States also has recognized the special status of cultural property. In 1983, Congress ratified the UNESCO convention by adopting the Convention on Cultural Property Implementation Act (CPIA). Pub. L. 97-446, tit. 3, 96 Stat. 2329 (1983) (codified, as amended, at 19 U.S.C. 2601 et seq. (2007)). 5 Congress s stated purpose in adopting the statute was to 5 CPIA provides a parallel definition for archaeological or ethnological material of the parties to the convention. Under CPIA, such material includes (1) articles of archeological interest which have cultural significance, are at least two hundred and fifty years old, and 8

combat the increase in looting and destruction of antiquities, which was depriving nations of their cultural patrimony and the world of knowledge of its past, particularly in light of the fact that the United States was a principal market for stolen cultural goods, which was at the time affecting its relations with other nations. See S. REP. NO. 97-564, 2d Sess. (1982) at 23, reprinted in 1982 U.S.C.C.A.N. 4078, 4100. The United States also has recognized these values in the context of Native American cultural property. The federal Indian Trust Doctrine provides that the federal government has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes. Seminole Nation v. United States, 316 U.S. 286, 297 (1942) (emphasis added). The federal Indian trust responsibility doctrine holds the United States legally responsible for the protection of tribal lands, assets, resources, and treaty rights. This principle has been codified in the Archaeological Resources Protection Act of 1979, Public Law 96-95, 93 Stat. 721 (1979), 16 U.S.C. 470aa-mm ( ARPA ) 6 and the Native American Graves Protection and Repatriation Act of 1990, Pub. L. No. 101-601, 104 Stat. 3049 (1990), 25 U.S.C. 3001 et seq. were normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water ; and (2) objects of ethnological interest, which are the product of a tribal or non-industrial society and important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people. CPIA, 302(2). There can be little doubt that the Persian Artifacts fall within this definition of cultural property. 6 In adopting the ARPA, the Congress found that archaeological resources on public lands and Indian lands are an accessible and irreplaceable part of the Nation s heritage and that these resources are increasingly endangered because of their commercial attractiveness. 16 U.S.C. 470aa(2)(a). Congress adopted the ARPA in order to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data.... 16 U.S.C. 470aa(b) 9

( NAGPRA ). 7 The former vests the title to all archaeological resources found on federally owned or controlled land in the federal government, the final disposition of which is possible only with the consent of the relevant Indian tribe. The latter was adopted to ensure respect for Native American cultural property and to facilitate repatriation of such property to Native Americans. See Gerstenblith, supra, at 582, 595; see also John H. Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339 (1989). The United States also has promoted the public policy of preservation of cultural property by providing assistance in returning such assets to their rightful owners in numerous cases. See e.g., Carol Vogel, Ciao to a Met Prize Returning to Italy, N.Y. TIMES, Jan. 11, 2008. See also Caprio, supra, at 302. II. The U.S. And Other Countries Strongly Support The Sharing Of Cultural Property Among Nations. While many countries recognize that cultural property should be protected, they also encourage the sharing and exchange of cultural property among nations. The preamble to the UNESCO Convention provides that the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations. UNESCO Convention, 823 U.N.T.S. 231. Likewise, the preamble to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (June 17, 1950, 7 The NAGPRA defines cultural items as, among others, cultural patrimony which shall mean an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group. 25 U.S.C. 2(3)(D) (emphasis added). 10

131 U.N.T.S. 25) provides that the free exchange of ideas and knowledge and, in general, the widest possible dissemination of the diverse forms of self-expression used by civilizations are vitally important both for intellectual progress and international understanding, and consequently for the maintenance of world peace. The salutary practice of cultural exchange obviously would be inhibited if cultural property shared with another nation was subject to attachment in litigation. In response to these concerns, and in order to promote cultural exchange, many nations have adopted anti-seizure laws. 8 These laws provide a temporary legal immunity from seizure by one state to an object on loan in its territory from another state for an exhibition, with the purpose of securing the object against legal claims by former owners of the object who dispute the current ownership. The protection offered by such legislation is granted for a specific period and suspends a claimant s ability to obtain relief for a strictly limited period of time. Adoption of anti-seizure legislation removes a significant disincentive to international loans to exhibitions. The United States also has recognized the importance of protecting cultural property from attachment in litigation, and thus enacted the Immunity From Seizure Act (IFSA), 22 U.S.C. 2459, in 1965. Under paragraph (a) of the IFSA, 22 U.S.C. 2459(a), works of art and objects of cultural significance which are imported into the United States for temporary exhibition by a 8 For example, see Canada Code of Civil Procedure, R.S.C., art. 553.1; Foreign Cultural Objects Immunity From Seizure Act, R.S.M., ch. F140 (1987)(Can.); Foreign Cultural Objects Immunity From Seizure Act, R.S.O., ch. F.23 (1990)(Can.); Law and Equity Act, R.S.B.C., ch. 253, 55 (1996)(Can.); Law No. 94-679 of Aug. 8, 1994, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Aug. 10, 1994, p. 11,668; Tribunals, Courts and Enforcements Act, 2007, pt. 6 (Eng.). For more information, see Matthias Weller, Immunity for Artworks on Loan? A Review of International Customary Law and Municipal Anti-Seizure Statutes in Light of the Lichtenstein Litigation, 38 VAND. J. TRANSNAT L L. 997 2005; Yin- Shuan Lue et al., Countering a Legal Threat to Cultural Exchanges of Works of Art: The Malewicz Case and Proposed Remedies, Hauser Center for Nonprofit Organizations, Harvard University, Working Paper No. 42 (Dec. 2007), available at http://www.hks.harvard.edu/hauser/ PDF_XLS/ working papers/ workingpaper_ 42.pdf. 11

cultural institution or for a cultural event without profit for the sponsor of the event are immune from any judicial process, judgment or order which would deprive the owner or custodian of the property of custody or control of the objects. 9 The Senate report accompanying the IFSA contains statements from the Departments of State and Justice explaining the statute s purposes. See S. REP. NO. 89-747, H.R. NO. 89-1070, 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3576. The State Department stated that the IFSA is consistent with the Department s policy to assist and encourage educational and cultural interchange and that its enactment would be a significant step in international cooperation. Id, at 3577. The Department of Justice observed in its statement that the legislation s purpose is to encourage the exhibition in the United States of objects of cultural significance which, in the absence of assurances such as are contained in the legislation, would not be made available. Id. at 3578. Finally, the Committee on the Judiciary stated that the purpose of the legislation would contribute to the educational and cultural development of the people of the United States. Id. at 3577. Although the IFSA is not directly applicable to the Persian Artifacts, it reflects both the domestic policy favoring the exchange of cultural property and the recognition that such cultural exchange will be inhibited if cultural property that is located in the United States is subject to execution in judicial proceedings. In fact, the IFSA has played an integral role in fostering cultural exchange. According to the Department of State, in the ten years prior to 2004, the United States Information Agency and the Department of State published immunity notices 9 In order to obtain immunity under the IFSA, the foreign owner must enter into an agreement with the United States or a U.S. cultural institute providing for the temporary exhibition, and the U.S. President must determine that the object is of cultural significance and that the temporary exhibition or display thereof within the United States is in the national interest; and must have a notice to that effect published in the FED. REG. 22 U.S.C. 2459(a). 12

under IFSA for more than 600 exhibits. More than 900 such notices had been published since 1980. These notices encompass a wide variety of cultural objects displayed at temporary exhibitions throughout the country. See the U.S. Statement of Interest re immunity of artwork under the Mutual Educational Cultural Exchange Program (Dec. 22, 2004), filed in Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.C. Cir. 2005). Several states have adopted similar laws. For example, New York s Fine Art Immunity from Seizure Law (N.Y. Arts & Cult. Aff. Law 12.03 (ACAL)) provides, No process of attachment, execution, sequestration, replevin, distress or any kind of seizure shall be served or levied upon any work of fine art while the same is enroute to or from, or while on exhibition or deposited by a nonresident exhibitor at any exhibition held under the auspices or supervision of any museum, college, university or other nonprofit art gallery, institution or organization within any city or county of this state for any cultural, educational, charitable or other purpose not conducted for profit to the exhibitor, nor shall such work of fine art be subject to attachment, seizure, levy or sale, for any cause whatever in the hands of the authorities of such exhibition or otherwise. Texas (Tex. Civ. Prac. & Rem. Code, 61.081) and Rhode Island (R.I. Gen. Laws 5-62-8) have similar statutes. See also Lue et al, supra note 8. The policy of encouraging cultural exchange would be undermined by a judgment for Plaintiffs in this case. If the Persian Artifacts are subject to execution in satisfaction of a default judgment against the Government of Iran, then any foreign government or cultural institution that has loaned culturally significant property to entities within the United States without having secured the protection of the IFSA may well decide to take its property back. That would diminish the cultural and historical richness of U.S. museums and deprive U.S. scholars of the opportunity to conduct research on foreign cultures and history in the United States. In addition, such a judgment may potentially expose U.S. cultural property, or cultural property that belongs to United States entities, to the risk of (retaliatory) seizure in foreign jurisdictions. See Caprio, 13

supra, at 287; Alexander Kaplan, The Need for Statutory Protection From Seizure for Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum Exhibitions, 7 J.L. & POL Y 691 (1999). III. The Commercial Activity Exception To Foreign Sovereign Immunity Should Be Construed To Exclude Activities Relating To The Exchange Of Cultural Property. The international consensus concerning the special nature of cultural property, and the United States s policy favoring cultural exchange, should guide this Court s interpretation of the FSIA. 10 Plaintiffs argue that the Persian Artifacts are subject to attachment in satisfaction of their default judgment because the Artifacts ostensibly were used by the Government of Iran for a commercial activity in the United States. 28 U.S.C. 1610(a). The government s exchange of cultural property with a U.S. academic institution or museum, however, should not be considered a commercial activity within the meaning of the FSIA. The FSIA provides that the commercial character of an act is to be determined by reference to its nature rather than its purpose. Weltover, Inc., 504 U.S. at 614 (quoting 28 U.S.C. 1603(d)). As the Supreme Court has explained, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce. Id. [W]hen a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign s actions are commercial within the meaning of the FSIA. Id. 10 The courts of the United States frequently look to international laws and policies when interpreting U.S. law. See Roper v. Simmons, 543 U.S. 551 (2005) (partially relying on foreign and international precedents for the purpose of interpreting the Eighth Amendment of the U.S. Constitution); Lawrence v. Texas, 539 U.S. 558 (2003) (partially relying on foreign and international precedents for the purpose of interpreting the Fourteenth Amendment of the U.S. Constitution). That approach is particularly appropriate when the statute in question incorporates or codifies international law, as does the FSIA. See H.R. Rep. 94-1487 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6605; Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992). 14

A foreign sovereign s acts relating to the temporary transfer of cultural property to a U.S. museum should not deemed commercial in nature. First, as noted above, a sovereign nation serves as the guardian or trustee of cultural property, with more responsibilties and fewer rights than a private owner. Thus, when a sovereign permits the exhibition or study of cultural property, its acts are inherently governmental, not commercial. It is for this reason that the U.N. Convention on Jurisdictional Immunities of States and Their Property, supra, provides that property that is part of the cultural heritage of a State or part of an exhibition of objects of cultural or historical interest, should not be considered to be used by the State for other than government noncommercial purposes as long as the property is not placed on sale. See id. art. 21(d)-(e). Second, U.S. law recognizes that cultural exchange is beneficial to relationships among nations. As discussed above, the IFSA protects objects of cultural significance, which are imported into the United States for temporary exhibition by a cultural institution, from judicial action. The legislative history of this Act indicates that it was adopted to assist and encourage educational and cultural interchange, and was expected to be a significant step in international cooperation. The legislative history also indicates that the Act s purpose was to gain the trust of foreign nations in lending to U.S. cultural institutions objects of cultural significance that would not be made available in the absence of the Act. To construe the commercial activity exception to foreign sovereign immunity broadly to include the loan of cultural property to U.S. museums would undermine this policy. Third, to treat a foreign sovereign s dealings relating to the loan of cultural property as commercial disregards the special nature of cultural property itself. As mentioned above, cultural property constitutes part of the collective heritage and identity of groups of people who share a common history. As such, the true value of cultural property can be appreciated only in 15

relation to its origin, history and traditional setting. That value increases when cultural objects are preserved in a meaningful collection and shared with the world at large. The loan of commercial property, therefore, is an altruistic act that is distinctly different from a commercial transaction. That is particularly true when cultural objects are loaned to museums, which conduct a semi-public function as guardians of the cultural property of both the United States and other nations. See Caprio, supra, at 287; see also Merryman, supra, Gerstenblith, supra. CONCLUSION In sum, a judgment for Plaintiffs in this case may well cause a portion of the cultural property of Iranian-Americans and other persons of Iranian descent to enter into the private stream of commerce where it will be dispersed and potentially lost or destroyed, and in any case, such a ruling would be contrary to the well-established national and international public policy favoring the preservation of cultural property and the promotion of cultural exchange through protection against judicial attachment. The Court should not construe the FSIA to produce such a result. March 2, 2009 Respectfully submitted, BABBACK SABAHI MIRIAM R. NEMETZ s/ Daniel Herrera DANIEL HERRERA MARC KADISH Mayer Brown LLP Mayer Brown LLP 1909 K St., NW 71 S. Wacker Drive Washington, DC 20006 Chicago, IL 60606 (202) 263-3000 (312) 782-0600 Counsel for Amicus Curiae 16

CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Brief Amicus Curiae of National Iranian-American Council in Support of the Defendants-Judgment Debtors Renewed Motion to Declare the Property Exempt was electronically filed with the Clerk of the Court using the CM/ECF system and sent via First-Class Mail, postage prepaid, this 2nd day of March, 2009, to each of the following: THOMAS CORCORAN, Jr., Esq. LAINA C. LOPEZ, Esq. Berliner, Corcoran, & Rowe LLP 1101 Seventeenth St. NW Washington DC 20036 MICHAEL D. MCCORMICK, Esq. Falk Metz LLC 20 S. Clark St., Suite 1900 Chicago, IL 60603 Counsel for Defendant MATTHEW G. ALLISON, Esq. THOMAS A. DOYLE, Esq Baker & McKenzie, L.L.P. One Prudential Plaza, Suite 3500 130 East Randolph Drive Chicago, IL 60601 Counsel for Citation Respondents the University of Chicago and Gil Stein R. CLAY BENNETT, Esq. THOMAS J. CUNNINGHAM, Esq. SIMON A. FLEISCHMANN, Esq. KEVIN DAVID KELLY, Esq. Lord, Bissell & Brook, L.L.P. 111 South Wacker Drive Chicago, IL 60606 Counsel for Citation Respondent Field Museum of Natural History

DAVID J. STRACHMAN, Esq. ROBERT S. PARKER, Esq. McIntyre, Tate, Lynch & Holt 321 South Main Street, Suite 400 Providence, RI 02903 ROBERT D. CHEIFETZ, Esq. DANIEL A. SHMIKLER, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, IL 60603 Counsel for Plaintiffs Jenny Rubin et al. DAVID JULIAN COOK, Esq. Cook Collection Attorneys, PLC 165 Fell Street San Francisco, CA 94102 THOMAS FORTUNE FAY, Esq. Fay Law, PA 700 Fifth Street NW, Suite 200 Washington, DC 20001 JAY J. GLENN, Esq. 2275 Half Day Road, Suite 350 Bannockburn, IL 60015 Counsel for Plaintiffs Deborah D. Peterson et al. ASSISTANT UNITED STATES ATTORNEY United States Attorney's Office (NDIL) 219 South Dearborn St., Suite 500 Chicago, IL 60604 2

RUPA BHATTACHARYYA, Esq. LESLEY FARBY, Esq. United States Department of Justice, Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 s/ Daniel Herrera DANIEL HERRERA MARC KADISH Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312 782 0600 Counsel for Amicus Curiae 3