“Supreme Court” by Mark Fischer is licensed under CC BY-SA 2.0.

Supreme Court Largely Forecloses Path Forward for Holocaust Claimants in Guelph Treasure Case

In unanimous rulings on February 3, the Supreme Court vacated two decisions by the United States Court of Appeals for the District of Columbia Circuit – one in a property restitution case brought by survivors of the Holocaust in Hungary, the second in a case brought by the heirs of a consortium of Jewish art dealers for restitution of the medieval reliquary treasure known as the Welfenschatz, or Guelph Treasure, which the claimants allege was sold under duress.

The decisions were based on the Foreign Sovereign Immunities Act (FSIA), under which foreign nations are generally immune from suit in the United States, unless an exception applies. At issue in both cases – Hungary v. Simon (18-1447) and Germany v. Philipp (19-351) – was the FSIA’s expropriation exception, which states in part that U.S. courts can exercise jurisdiction over a foreign sovereign where “rights in property taken in violation of international law” are at issue. 28 U.S.C. § 1605(a)(3).

Claimants in both cases argued that World War II nations are not free to take property from their own nationals as part of the commission of genocide without risking international censure. They asked the Court to rule that U.S. courts have jurisdiction over their cases because property was taken from their ancestors as part of a genocidal campaign, constituting a taking in violation of international law.

The Supreme Court declined to accept this broader reading of the FSIA. It relied heavily on the text, context, and history of the expropriation exception, concluding that when Congress enacted the FSIA in 1976, the expropriation exception referred to the international law of expropriation, meaning the taking of property, and did not incorporate international law more generally. More specifically, the Court held that it looked to the law of property, not the law of human rights, to determine courts’ jurisdiction under the FSIA expropriation exception. The Court confirmed that the FSIA did not displace or amend the domestic takings rule, which dictates that a country violates international law by taking the property of a foreign country’s nationals, but not by taking the property of its own nationals.

The Supreme Court’s ruling that the expropriation exception is limited to the international law of property means that a claimant seeking restitution of art looted during World War II could bring suit in the United States, as long as the property was not taken by the original owner’s own government. When viewed in context of World War II, during which the Nazi regime and its allies perpetrated horrific crimes against its own citizens and those of other countries, this inconsistent ability to obtain restitution seems ripe for a legislative fix.

Notably, the Supreme Court did not address the claimants’ argument in Philipp that because the members of the consortium were not German nationals at the time of the transaction, the property taking was not covered by the domestic takings rule. The Court vacated and remanded Philipp with instructions to address this argument (and ordered Simon to be handled consistently with Philipp).

Olga Symeonoglou is an attorney in the DC office of Cultural Heritage Partners. 

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“Supreme Court” by Mark Fischer is licensed under CC BY-SA 2.0.