CONTENTS I. OF EMPIRES, CZARS, AND DICTATORS II. FOREIGN SOVEREIGN IMMUNITIES ACT III. ACT OF STATE DOCTRINE IV. CONCLUSION Theft victims filing lawsuits to recover cultural property taken during war and revolution face hurdles that most claimants of stolen property do not. This is particularly true if a governmental official, perhaps acting in the gray zone where authority, duress, corruption and persecution meet, took the property. Historically, individuals could not sue foreign sovereigns under international law. (1) Over time, exceptions were born. Nations differ in their interpretations of them, but this essay will focus on U.S. law.
Until 1952, when a plaintiff tried to sue a friendly foreign sovereign, the U.S. State Department would request the court dismiss the case; the court always did. (2) By 1952, in the wake of World War II, a more restrictive approach gained acceptance, whereby sovereign immunity was "confined to the sovereign or public acts of the foreign state and [would] not extend to its commercial or private acts." (3) The State Department does not always communicate its perspective to the courts, but even if it does, the court has a constitutional responsibility to decide on a case-by-case basis whether the foreign sovereign being sued is, as a matter of law, immune. (4) The Foreign Sovereign Immunities Act (FSIA) codifies the restrictive approach to sovereign immunity. (5) The U.S. was the first state to do so. (6)
The FSIA, however, did not do away with the common law act of state doctrine, which is another hurdle plaintiffs must overcome. Under the act of state doctrine, U.S. courts decline to hear suits challenging the acts of another sovereign in its own territory. This doctrine, too, is grounded in flexible principles of international comity. This essay discusses both the FSIA and the act of state doctrine in the context of cases seeking to recover art and cultural property taken during the Nazi-era and Russian Revolution after providing necessary historical background.
OF EMPIRES, CZARS, AND DICTATORS
World War I devastated the population, economy and stability of the entire European continent. The Habsburg Empire collapsed; Kaiser Wilhelm abdicated the German throne; and the Ottoman Empire disintegrated. (7)
By 1917, the Russian population and its parliament, the Duma, had lost faith in Czar Nicholas II's leadership. (8) The Russian economy collapsed, and Nicholas dissolved the Duma yet again. (9) The February Revolution of 1917 began when hungry demonstrators stormed the streets of the Russian capital, Petrograd. (10) Police who were loyal to the czar tried to suppress them but could not. (11) The demonstrations grew, and mobs destroyed police stations. (12) Troops from the Petrograd army intervened and killed protestors, pushing the populace to all-out revolt and forcing the imperial government to resign. (13) The Duma reconvened but true power belonged to the Petrograd Soviet Workers' and Soldiers' Deputies. (14) Czar Nicholas II instructed Russian soldiers and sailors to obey only those orders that did not conflict with the intentions of the Soviets, as he relinquished the throne to his brother Michael. (15) The Soviets organized in cities and called for Russian withdrawal from World War I. (16) Russia lost more people in the war than any nation in history had lost during warfare. (17)
The second Bolshevik Revolution overthrew the Soviet regime in the October Revolution of 1917. (18) Vladimir Lenin was the Bolshevik party leader and organized a nearly bloodless coup d'etat. (19) The radical Bolsheviks gained control of government buildings and other strategic locations in Petrograd, then formed a new government. (20) With Lenin in charge of the first Marxist state in the world, his government made peace with Germany but fought new, internal enemies. (21) Lenin and the Marxists nationalized property by seizing all land from landowners and refused to compensate them, then divided the land among the peasants. (22)
The Russian Soviet Federative Socialist Republic (RSFSR) was established as a sovereign state in 1917 following the October Revolution. (23) In 1918, the RSFSR fought a civil war against the anti- Bolshevik White Army forces, defeating them in 1920. (24) Two years later, the Union of Soviet Socialist Republics (USSR) was born, as the successor state to the RSFSR. (25)
Hitler, the failed artist turned soldier, wounded in World War I, emerged from prison in 1925 for leading the failed Munich beer-hall putsch. (26) Open, violent anti-Semitism escalated in Germany. (27) After global markets began crashing in late 1929, Nazi Party membership grew, (28) reaching 400,000 by 1932, making the Nazis the most popular party in Germany with over 30% of the popular vote in the national election. (29) To form a workable parliamentary government, on January 30, 1933, Independent President Paul von Hindenburg appointed Hitler Chancellor. (30) Hitler quickly usurped all real power. (31)
With the Hitler-Stalin nonaggression pact in place on August 23, 1939, (32) Germany annexed Austria and invaded Poland, Denmark, and Norway, and the Low Countries. (33) By the end of June 1940, Germany had annexed France. (34) The Nazis implemented Aryanization procedures to steal absolutely everything from Jews. (35)
This essay will focus on the art, which the Nazis sought to control in every way. The Nazis plundered Europe's finest, traditional art. (36) They also appropriated art they did not like, which they called "degenerate" and banned from Germany. (37) As much as Hitler sought to exterminate a race, he also wanted to wipe out all support for Bolshevism. (38) Modern art movements at the time were strongly intertwined with leftist political beliefs, including communism. (39)
The Nazis purged modern artworks from German museums and opened the traveling Exhibition of Degenerate Art, die Ausstellung "Entartete Kunst, " during the latter part of 1937. (40) They launched a concurrent exhibit of Nazi-favored art to display what art they would allow within the Third Reich. (410 The Nazis burned approximately 5,000 low-value, modern artworks, but sold and traded far more on the international market to acquire works they wanted and to raise foreign currency. (42) They utilized auctions in Berlin and Switzerland to raise that currency. Through auctions, the art filtered out into the world's private collections and museums. (43)
In addition to other agencies with the mission to extort all Jewishowned property, Hitler established agencies with the specific mission to steal art. (44) In 1940, for example, he charged the Einsatzstab Reichsleiter Rosenberg (ERR) with the specific task of confiscating and destroying artwork in the occupied territories, with a focus on theft in the West and destruction in the East. (45) The Sonderauftrag Linz took orders straight from Hitler for his planned Fuhrermuseum in Linz, Austria, his childhood home. (46)
Hitler obsessed over what he viewed as a moral failure in art's departure from symmetry, order, natural color tones, and reinforcing German superiority. (47) Nazi elites shared his views. (48) Stealing...