The Museum of Modern Art (MoMA) in New York is preparing “Wifredo Lam: When I Don’t Sleep, I Dream,” a major retrospective expected to show works by the seminal Afro-Cuban Surrealist. But several important pieces from Cuba’s National Museum of Fine Arts will not be part of the exhibition. Cuban officials declined to lend those works over fears that U.S. courts might seize them in legal claims brought by exiles over property confiscated after the Cuban Revolution. What this reveals is not just political tension but legal precarity for artworks in transit. When museums hesitate to send art abroad, fearing that the destination’s legal system could treat them as collateral for unrelated disputes, the global circulation of culture suffers. This situation illustrates how uncertain international law principles can leave even masterpieces trapped by fear, not by condition.
Legal Uncertainties and the Case for Mediation
Art loans between countries are often governed by loan agreements, insurance, export/import clearances, and mutual trust. But when legal claims are pending (especially claims tied to property seizures or nationalization) those agreements may be deemed insufficient. In this specific Cuban-MoMA scenario, the Cuban museum’s refusal rests on a unresolved concern: U.S. court rulings have sometimes allowed claimants to seize foreign assets within U.S. jurisdiction, including art on loan, if legal claims are deemed valid under U.S. law. The fear is that once Cuban artworks cross the border, they may become target of unrelated litigation.
This points to a gap: there is no universal legal standard protecting museum loans from seizure, especially in jurisdictions where expropriation claims remain active. Without bilateral treaties or arbitration mechanisms that specifically protect loaned art, museums must err on the side of caution. Mediation could help. If MoMA and Cuba had negotiated a legal framework, perhaps using an international arbitration body or explicit legal shields in U.S. legislation, these works might travel safely. Mediation allows the parties to set terms in advance. It helps them define what legal outcomes could trigger return, or setting up insurance or indemnity.
Without such structures, significant exhibitions become partial.
International Lessons: How Shared Legal Frameworks Can Prevent Cultural “Stuckness”
Other nations and museums observing this episode can pull lessons. First, art restitution or loan policy should include legal certainty from the start. That might mean agreements ratified under international conventions or explicit protections in the lender and borrower’s laws. For example, laws or state protections that prevent the seizure of art on loan. Without that, lenders will hesitate, and exhibitions will exclude works, weakening their impact.
Second, transparent provenance and documentation are essential. Legal claims often depend on historical ownership, records of nationalization or confiscation, and clear chain-of-custody. When museums maintain thorough archives, public registries and searchable databases of ownership, indemnity becomes more feasible. Potential claimants and courts can inspect evidence and see whether a particular work is subject to a legitimate claim. This helps reduce fear among lenders, and helps potential litigants assess whether their claim is valid.
Third, bilateral or multilateral mediation/arbitration bodies could serve as neutral channels. When disputes arise, parties can agree in advance to submit to such mechanisms that are impartial, domain-expert driven, and binding. Some nations already have such tribunals for restitution of looted art or human remains. If MoMA and the Cuban museum had access to such a mechanism, with enforceable rules, the hesitation might have been mitigated.
Conclusion: Art, Law, and the Need for Shared Trust
The decision by Cuba not to lend works to MoMA is disappointing but understandable. It reflects the collision between culture and incomplete legal frameworks. When law is uncertain, art is held hostage. What we need going forward is not just goodwill or curatorial prestige, but binding legal tools: mediation frameworks, treaties, protections for loaned art, and better documentation.
Only then will exhibitions truly serve their purpose. Only then can art cross borders without being endangered. The world deserves full retellings, not truncated versions. When masterpieces like those of Wifredo Lam stay locked away by legal fear, we all lose pieces of our shared heritage. Let this be a warning: unless we build more robust systems, art will continue to get stuck in limbo.