Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them. The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly. The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another. It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).
Topics: Legislation, Guelph Treasure, Alfred Flechtheim, Russia, Nazi-looted art, Foreign Sovereign Immunities Act, 22 U.S.C. § 2459, FSIA, expropriation exception”, NS Raubkunst, Restitution, World War II, State Hermitage Museum, Charles Schumer, Immunity from Seizure Act, Chabad, 28 U.S.C. § 1605, John Cornyn, Welfenschatz, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, Ted Cruz, Foreign Cultural Exchange Jurisdictional, Mikhail Piotrovsky, Politico, Anita Difanis
Among the many challenges that litigants over Nazi-looted art face in the United States is a lack of uniformity. Statutes of limitations vary from jurisdiction to jurisdiction, and interpretations of jurisdictional laws like the Foreign Sovereign Immunities Act differ from one Court of Appeals to another. This is particularly challenging in the context of the Washington Conference on Nazi Looted Art of 1998 because private disputes are where the issue has meaning in the United States. There is no national commission to address potentially looted art in public possession like those in Austria, Germany, or the Netherlands (however well or poorly some of those commissions perform) because there is very little art in national ownership about which the federal government has any power to decide. Thus, in assessing U.S. compliance with the Washington Principles, it is often left to private litigants to argue about what the Principles mean in individual disputes. Happily, appellate courts have begun to reject consistently the denialist defenses of foreign countries that wish to keep stolen art just because they say so, holding that the Washington Principles support the ability of heirs to pursue claims. Yet the uneven landscape is still daunting.
A new bill introduced this week would address that, though its chances of passage into law in a contentious election season are hard to be optimistic about.