An altar from the Guelph Treasure at the Cleveland Museum of Art.

LAW Reviews

US Limits Cases Seeking Restitution of Art Seized in the Holocaust

In Federal Republic of Germany v. Philipp, the Supreme Court limited the ability of foreign parties to bring lawsuits in US forums, closing courts to a significant class of potential Holocaust cases.

The Foreign Sovereign Immunities Act (FSIA) generally prevents US courts from entertaining suits against foreign governments and their state agencies, subject to limited statutory exceptions. State museums and cultural institutions that own contested artwork acquired by gift or purchase may claim immunity from suit under FSIA. In Federal Republic of Germany v. Philipp, the court held that one of the exceptions to immunity did not apply, for a case in which “rights in property taken in violation of international law are in issue.”

The controversy in Philipp centers on a collection of medieval relics and devotional art known as the Welfenschatz (or the Guelph Treasure), dating primarily from the 11^th to the 15^th centuries and associated with an ancient European dynasty, the House of Welf. In 1929 a consortium of three art firms owned by German Jews purchased the Welfenschatz from the Duke of Brunswick. They sold some of the pieces and put the rest in storage in Amsterdam.

The heirs of the purchasers allege that in 1935, Hermann Goering, then prime minister of Prussia and Adolf Hitler’s deputy, employed a combination of political persecution and physical threats to coerce the consortium to sell the remaining pieces to Prussia for a third of their value. Two of the sellers then fled the country and the third died shortly thereafter. After World War II, the United States, which had taken possession of the collection, turned it over to the Federal Republic of Germany. The treasure has been maintained for nearly 60 years by Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the Federal Republic, which displays the collection in a museum in Berlin.

The heirs argued that the sale to the Prussian government was coerced and unlawful. The German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution concluded, however, that the sale was not compulsory and due to persecution. The heirs then brought suit against the Federal Republic of Germany and SPK in the US District Court for the District of Columbia.

The defendants moved to dismiss the case, claiming sovereign immunity, and plaintiffs countered that the exception to immunity for property “taken in violation of international law,” applied because the purchase in this case was an act which violated the international law of genocide. The Nazi effort to wipe out the Jews, a staggering human tragedy that ended in mass imprisonments and murders, began in the 1930s with state-sponsored devices to demean Jews, destroy their livelihoods and seize their possessions. The sale of the collection, as part of a program to destroy the business of Jewish art dealers, constituted an act of genocide and came within the FSIA exception.

The district court and the circuit court agreed with the heirs, but in a unanimous opinion, the Supreme Court reversed.

The ruling limited the exception to violations of international property law, expropriation of the property of noncitizens without just compensation. Extending the exception to other violations of international law, it argued, would waive immunity for any claimed human rights abuse and go beyond accepted international law understandings. This limited reading of the exception, it said, followed from the history and objectives of the FSIA, which codified a “restrictive” theory of sovereign immunity, granting immunity for public but not private acts. Extending the expropriation exception as the plaintiffs urge would destroy that distinction by opening up all manner of foreign sovereign public acts to US judicial scrutiny.

The court’s interpretation of FSIA, though consistent with the act’s history, effectively closes US courts to a significant class of potential Holocaust cases. For those claimants, the effort to right the wrongs suffered in the past has become much harder.

Artworks initially owned privately often ends up in state museums. The sovereign immunity bar will make it difficult or impossible to find a neutral forum in which claimants can make their arguments for obtaining possession of the art. Courts or administrative agencies in countries where the works reside may tend to resist claims of ownership, based on events that occurred long ago, that would deprive the local party of possession of the work. When the local party is a respected institution such as a museum or an instrumentality of the government, the appearance of bias may be more pronounced. Claimants turned to courts in the United States as more likely to provide them a fair hearing. Philipp, by limiting access to this forum, hampers the pursuit of justice for the wrongs of the Nazi genocide. 

“LAW Reviews” is an opinion series that provides commentaries from BU Law faculty on a variety of legal issues. The views expressed are solely those of the author and are not intended to represent the views of Boston University School of Law.

This Series

Presidential Transitions and Midnight Regulations

Also in

LAW Reviews

• November 29, 2023

  New Frontiers in Legal Education

• June 29, 2023

  BU Law’s Commitment to a Diverse Student Body

• June 2, 2023

  After Roe, After Dobbs

Series home