International Hurdles in Nazi-Era and Russian Revolution Cultural Property Cases

By Kreder, Jennifer Anglim | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

International Hurdles in Nazi-Era and Russian Revolution Cultural Property Cases


Kreder, Jennifer Anglim, Case Western Reserve Journal of International Law


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.

I. 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. …

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