Germany v. Phillip: The Foreign Sovereign Immunities Act (FSIA) and Art Restitution following World War II

Jennifer Linares is a junior in the College studying government, history, and French and serves as a blog editor for GUULR.

Among the many atrocities that Nazis committed against victims of the Holocaust was the stripping of property from Jewish people before being sent to concentration camps. In recent decades, these acts of expropriation have become a highly contested subject in the field of international justice, as many Holocaust victims and their descendants have been filing suits in attempts to reclaim seized property, particularly works of art.

One of the most famous cases to come out of these art restitution efforts was Republic of Austria v. Altmann. In this case, the plaintiff, Maria Altmann, filed a suit against the Austrian government to reclaim five family-owned Gustav Klimt paintings that were stolen by Nazis after her family fled Austria following its annexation by Nazi Germany in 1938. As with many art restitution cases that were filed after World War II, Republic of Austria v. Altmann concerns interpretations of the Foreign Sovereign Immunities Act (FSIA), which establishes the circumstances under which a foreign sovereign nation can be sued in American federal or state courts.[1] In this case, the Supreme Court of the United States held that the FSIA applies retroactively.[2] Therefore, because the FSIA’s standards apply to situations that precede its creation, retroactive immunity did not apply to Austria and the Austrian government could be tried by an American court.[3] This allowed Altmann to move her case from its initial status as a domestic case in Austria to an international case in front of the U.S. Supreme Court, which ruled in favor of the restitution of the paintings to Altmann.

However, the ruling in Republic of Austria v. Altmann is by no means an indicator that all art restitution cases have been successful in their efforts. In fact, the court’s interpretation of the FSIA in this case is quite exceptional, as there have been many art restitution cases in which states have been granted immunity from litigation. This is particularly true of the ruling in Germany v. Phillip, in which the U.S. Supreme Court decided against the descendants of Holocaust victims seeking art restitution and did not allow them to file suit against Germany in an U.S. court.[4] The artwork in question was the Guelph Treasure, a collection of medieval ecclesiastical art that was purchased prior to World War II by Jewish art dealers. During the war, these art dealers were forced to sell the collection at a fraction of its original value to the agents of Hermann Wilhelm Göring, one of the most powerful figures in the Nazi Party.

In Germany v. Phillip, the Supreme Court ruled that exceptions of foreign immunity did not apply, arguing that because this act of expropriation was committed against German citizens and the FSIA’s exceptions “do not extend to a sovereign’s taking of the property of its own nationals,” the Guelph Treasure was not taken in violation of international law.[5] Additionally, while there are exceptions to the FSIA’s standards in cases of state-sponsored terrorism and international terrorism, there are no mentions of exceptions in cases of other heinous acts such as genocide or torture. The act’s failure to address these circumstances is especially unjust in the context of the Holocaust, as the court’s ruling in Germany v. Phillip fails to recognize how the forced sale of the collection constituted part of the Nazi’s greater plan to destroy the livelihoods of Jewish people. As a result, the court’s narrow interpretation in this case fails to consider genocide as a violation of international law and interprets the FSIA in a manner that not only prevented the plaintiffs from pursuing justice but also creates a negative precedent for future World War II art restitution cases.

[1] The Foreign Sovereign Immunities Act, Title 28, § 1605 (1976).

[2] Republic of Austria v. Altmann, 541 U.S. 677 (2004).

[3] Id.

[4] Federal Republic of Germany v. Philipp, 592 U.S. 19 (2021).

[5] Id.

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