Mexico’s Supreme Court has agreed to review the legality of a 1984 presidential decree that prohibits the permanent export of works by Frida Kahlo. The issue is especially significant given the scarcity of her works in public ownership: of the 152 works attributed to Kahlo, only seven paintings are held in Mexican state collections. The proceedings also unfold against the backdrop of controversy surrounding the Jacques and Natasha Gelman Collection, which was expected to leave Mexico for display at Faro Santander, Banco Santander’s cultural centre in Spain.
What the dispute is about
The case concerns a 1984 presidential decree that prohibits the permanent export of works by Frida Kahlo. The dispute was brought by Banco Ve por Más, which owns Kahlo’s 1948 painting Self-Portrait with Medallion. Under the decree, the painting may leave Mexico only temporarily and for cultural purposes, but it cannot be exported permanently.
The legal problem is that Mexico’s 1972 Federal Law on Archaeological, Artistic and Historic Monuments and Zones generally allows privately owned artistic monuments to be exported, provided that the necessary authorisation is obtained. The presidential decree on Kahlo’s works goes further by imposing an absolute ban on permanent export.
The Supreme Court must therefore decide whether the president had the authority to introduce such a far-reaching restriction by decree or whether this exceeded the powers of the executive branch. The case also requires the Court to balance two competing interests: the owner’s right to use and dispose of private property, and the state’s responsibility to preserve works of exceptional importance to Mexico’s cultural heritage.
Mexican cultural figures oppose the transfer of masterpieces to Spain
The proceedings are taking place against the backdrop of controversy surrounding the Jacques and Natasha Gelman Collection, one of the most important collections of twentieth-century Mexican art. It includes works by Frida Kahlo, Diego Rivera, Rufino Tamayo and other leading artists.
In 2023, the collection was acquired by the Zambrano family, which entrusted its management to the Spanish banking and financial group Banco Santander. It was previously reported that, under the agreement with the bank, the collection was expected to leave Mexico in the summer and be displayed at Santander’s own cultural centre, Faro Santander, in Spain.
The plan triggered a strong reaction in Mexico. Hundreds of artists, art historians and representatives of cultural institutions called for disclosure of the export terms, the period for which the works would remain abroad and the guarantees for their return.
Particular concern surrounds the works of Frida Kahlo, since their permanent export is prohibited and any temporary removal must be supervised by Mexico’s National Institute of Fine Arts and Literature, INBAL.
What the Supreme Court must decide
The Court will have to determine whether the absolute export ban is:
- provided for by law;
- necessary to protect cultural heritage;
- a proportionate restriction on property rights.
Even if the special protection afforded to Kahlo’s works is considered justified, the Court may still conclude that a complete ban is excessive. Less restrictive alternatives could include an authorisation procedure, temporary export, a mandatory return obligation or a right of first refusal for the state.
A question of national importance
The Court’s plenary session recognised the dispute as a matter of national importance.
The case concerns more than a single painting or the Gelman Collection. The Supreme Court’s ruling could affect the entire Mexican art market, the rights of private collectors and the organisation of international exhibitions.
If the ban is relaxed, owners of works by Frida Kahlo may, for the first time, be able to export them permanently from Mexico. If the decree is upheld, the Court will confirm that the protection of national cultural heritage takes precedence over the freedom to dispose of privately owned property.
