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Still Seeing Red: Legal Remedies for Post-Communist Russia's Continued Refusal to Relinquish Art Stolen During World War II.
Michael R. Cosgrove*
I. Introduction
When the Red Army entered Germany at the end of World War II, it seized 2.3 million objects including paintings, sculptures, and other works of art.[1] At the time of this writing in 2009, the bulk of those objects are still in Russia.[2] In addition to hundreds of thousands of pieces that belonged to German citizens and German museums the Russians hold paintings that the Nazis had stolen from all over Europe.[3] Many of the works in question have been kept in locked rooms in the basements of museums since the end of the war.[4] Although there were some encouraging signs that the art might be returned, or at least allowed to be displayed, with the end of the communist government, it does not appear that Russia is considering a large scale return of the art at this time.[5] To the contrary, the Russian government has long held that the art is restitution for the destruction and theft of Russian art by the Nazis, and passed a law in 1998 that declares that the art is state property.[6] This article explores the international legal remedy for procuring that art from the Russian government. "[U]ntil every one of those paintings, prints, sculptures, tapestries, and artifacts is returned, it will be impossible for us to walk through most of the world's museums and galleries without wondering if we are staring into the haunted face of the spoils of war."[7] At the outset, a conclusion: favorable verdicts are obtainable, but the successful conclusion of litigation will only be the beginning of the exceedingly difficult task of enforcing a verdict against an obstinate and neo-nationalistic Russian government.
II. Background: Art and War
Art theft and war have been entwined throughout history. Napoleon was driven to terrorize Europe and the Middle East for decades "as much by a desire to collect statues and other relics as by the idea of military subjugation."[8] Significantly in the context of this paper, the Prussians forcibly took back art stolen by France after Napoleon was defeated.[9] Not that Napoleon was unique in his lust for art - Britain, Spain, and the other European powers were just as infatuated with it during their various campaigns.[10] Neither should this connection be thought of as something that is relegated to the pages of distant history; as recently as 2003, Iraqis looted their own museums after the fall of Saddam Hussein.[11] In fact, even the 9/11 hijackers considered financing their attacks with money raised by selling art stolen from Afghanistan.[12] "So if criminals used to let news about fine art pass them by - convicts generally aren't likely to be subscribers to The Art Newspaper - the record prices trumpeted over the last few decades from the front pages of newspapers around the world had a way of making even the hardened philistines salivate at the sight of a pretty picture."[13] One such picture, Raphael's Portrait of a Young Man, is worth roughly $100 million and has been lost since World War II.[14]
III. Art and World War II
Art theft, like so many other vile acts, was perfected in World War II. That war destroyed much of the world's great art, and displaced most of what was left. Many paintings were stolen more than once, as governments and private individuals used the war as an opportunity to rob destabilized nations of their artistic wealth. Thousands of the Europe's most important art works, that define its culture and civilization, remain missing to this day.[15] "Art defines our societies, outlines our aspirations, shows us ways of seeing the world that science never could. When a painting goes missing, we all lose a piece of our common heritage."[16]
Countless stories of mystery and disaster resulted from this chapter of art history. For example, art has become a form of currency in the criminal underworld,[17] with Interpol ranking art theft as the third most lucrative criminal enterprise in the world after only drugs and arms trafficking.[18] Or there is the Nazi decree that certain styles of painting were illegal, a law they enforced by having officers go into the houses of suspected artists and sniff the air for tell-tale smells of paint.[19] And what could be more bizarre than the four small watercolor paintings that the U.S. government has kept locked away in the basement of an Army building since seizing them shortly after the war - paintings it still considers too incendiary and dangerous for the public to view.[20]
A. The Nazis
1. An artistic bent
In pre-war Austria, an 18-year-old boy applied to Vienna's Academy of the Arts, where he hoped to study painting. He was rejected, twice,[21] and when he turned to writing somewhat later in life, he described the experience: "[t]hat gentleman (the rector) assured me that the drawings I had submitted incontrovertibly showed my unfitness for painting."[22] The proceeds of that book, not surprisingly, he used to start a private art collection that would become one of the largest in the world.[23] He continued to paint despite this discouraging evaluation of his skill, and earned a living selling postcards and watercolors for a short time.[24] Four of his watercolors are now housed in a drawer in the basement of a U.S. Army installation, and have been there since they were seized by American forces shortly after the war.[25] They have been valued at $8 million by a federal court.[26] Apparently, the U.S. government still considers the watercolors too horrible to expose to the public.[27] The artist that created these paintings was Adolf Hitler, and the book mentioned earlier in this paragraph was Mein Kampf.[28]
2. Steal and hoard
The Nazis were so obsessed with art they listed pieces that they wanted to steal before they invaded other countries, and they emptied many of the museums of Europe. At the end of the war, they had amassed 10.7 million stolen objects, including 600,000 art works[29] and hidden them in castles, bunkers and mine shafts across Germany.[30] An estimated 100,000 of those works are still missing.[31] "Art was part of [Hitler's] political message."[32] Not only did the Nazis seek to steal what they found appealing, but they also stole art that had value as propaganda.[33] They sometimes went through convoluted leaps of logic to claim that works of art were "Germanic",[34] and used the supposed superiority of their art as proof of their superiority over other people.[35] All the party leaders had art collections, and tried to use them to exert cultural influence.[36] Hitler initiated a yearly Day of German Art, when average citizens came to view favorable portrayals of German culture.[37] Hitler had intended to collect the greatest art from across Europe, and bring it all together in a massive museum in Linz.[38] Indeed, the German hunger for art was even greater than their hatred of the Jews, as Jews could sometimes buy their own lives by giving valuable paintings.[39] "How they could retain the nicety of appreciation of great art and be exterminating millions of people nearby in concentration camps I couldn't understand it then and I still can't understand it today."[40]
3. Purge
When the Nazis came to power, they banned virtually all modern art, including Impressionist, Cubist, Expressionist, and Surrealist.[41] It was illegal for many artists to paint and Nazi officers would go into the homes of artists and smell the air to see if anyone was breaking the law.[42] The members of the Berlin Fire Department were the last people to look at many masterpieces of modern art.[43] Moreover, at the end of the war, as the Nazis realized that the Allies were going to recapture art that they had stolen, they attempted to destroy art works they considered to be valuable. In one case, a hoard of stolen paintings was hidden in a salt mine, and the Nazis attempted to sneak crates of explosives labeled "Marble - Don't Drop" into the mine. U.S. troops put out the fuses just in time to save hidden artistic treasures.[44]
B. The Russians
1. As host to the Nazis
The Russian people initially greeted German troops as liberators from Stalin, but the German hatred for Russians and their culture swiftly became apparent.[45] When the Red Army finally pushed the Nazis out of their country, it was revealed that many of the Russian museums had been totally stripped of precious holdings. What the Nazis did not choose to steal, they often destroyed.[46] The Nazis burned original Tolstoy's manuscripts in the author's own stove,[47][48] In 2009, Russia posted a list of 46,000 artworks that it claims are still missing as a result of Nazi thievery.[49] and destroyed Tchaikovsky manuscripts before turning the composer's house into a motorcycle repair garage.
If there is a single symbol of Nazi theft and destruction in Russia, it is the Amber Room from the Catherine Palace. Built out of six tons of amber and measuring five hundred square feet, it was considered by some to be the eighth wonder of the world.[50] Commissioned in 1701 by the Prussian king, and given to the Russian emperor, Peter the Great, in 1716,[51] the Amber Room was an obvious target for Nazi art looting. The original panels of the Amber Room have never been found, and Russia spent $8 million to rebuild the room in 2003.[52]
"People sometimes don't remember how deep this war is in the heart of every Russian," said Mikhail Piotrovsky, Director of Russia's Hermitage Museum.[53][54] In any event, when Russian troops entered Germany and began their own campaign of looting and destruction, they justified taking the art "in the logic of an eye for an eye".[55] Indeed, that sentiment may be more easily understood when it is remembered that Russia lost 20 million lives in WWII, compared with approximately 295 thousand for the U.S. and 388 thousand for Great Britain.
2. Russian art theft: sincere flattery
"As the Red Army fought its way westward and invaded Germany, it seized everything that it could, from industrial infrastructure down to toilet seats, but they also seized millions of cultural objects."[56] Among the objects was art originally stolen by Germans from Jews[57] and from countries other than Russia. The Russians were open about the fact that they cared less about getting art that had belonged to Germany, or reclaiming their own art, than they were did about taking the best of what Germany had stolen from all over the world.[58] In fact, much of the Soviet art that had been stolen by the Nazis was found and returned by American forces soon after the war.[59]
Like the Nazis, the Russians had detailed lists of what they were going to take before they entered Germany.[60] "It was the most prodigious secret removal of looted cultural property in human history, carefully organized and carried out by the Red Army and the Soviet military administration."[61] Stalin even intended to build a "Palace of the Soviets," topped with a giant statue of Lenin, which would house the best of the art taken from Germany,[62] art that Hitler had planned to house in his own super-museum in Linz.[63]
Instead, however, most of the art has been locked up in the basements of Russian museums since the war. It was not until the fall of the Soviet Union in 1991 that it became widely known that there were secret rooms, containing tens of thousands works of art that had been hidden from the public.[64] For example, a collection of 9,000 gold artifacts, missing since WWII and thought to be destroyed, was displayed only once in 1996 and then put pack in storage.[65] Similarly, the art world was stunned when, in 1995, Russia unveiled 74 important paintings that no one suspected were in their possession.[66] For some time, elite members of the government were able to get a special pass that let them view the most notable artworks stolen from Germany,[67] but then all tours were stopped.[68][69] At one point, secret police with dogs also patrolled every gallery of the main museum, the Hermitage.[70] To this day, all Russian museums have trophy art.[71] Thereafter the only people that saw the paintings were restorers.
In addition to taking art, the Russians reenacted many of the Nazi's darker efforts. Large-scale destruction and burning of art took place.[72] Further, only one style of painting was tolerated in the Soviet Union - Soviet Realism.[73] As a result, there was serious consideration of burning many of the same types of Impressionist paintings that Hitler had destroyed in Germany.[74] Besides suppressing art, a purge of artists themselves - along with Jews, writers, and other undesirables - was taking place.[75] Intellectualism was seen as amoral during this period.[76] Viewing Russia's treatment of art in this light, "most scholars, politicians, art lovers, and even casual observers condemn Russia for acting like a petty child in its desire to exact revenge from its former partner[, Germany]."[77]
It is important to acknowledge that Russia has voluntarily returned some of the stolen art. Between 1949 and 1960, Russia returned 1.5 million stolen artifacts,[78] mostly to communist governments such as Poland and Romania.[79] A large collection of paintings was also returned to Germany's museum in Dresden in 1955.[80] Returning art on a meaningful scale has stopped, however, in more recent times.
3. The current state of Russia's trophy art
Since the fall of the Soviet Union, the art has at least been more likely to be displayed, if not returned to its previous owners.[81] Sadly, the impetuous for these exhibits seems not to be sharing the pieces with the world, but rather to insult the German government.[82] For example, one of the first large public exhibits took place in 1995, to commemorate the fiftieth anniversary of Russia's victory over Germany.[83] The name of the exhibit was "Twice Saved: Masterpieces of European Art of the Fifteenth and Sixteenth Centuries Removed to the Territory of the Soviet Union from Germany as a Consequence of the Second World War."[84] Again on the sixtieth anniversary of the war, a Russian state museum displayed 522 works taken from Germany in an exhibit called "Archaeology of War: The Return from Oblivion", doing so "as if to taunt Germany" and made it clear that they would not return the works.[85] In short, keeping all the trophy art is very popular in Russia.[86] "This has always been a political card for extreme nationalists," explained Mikhail Shvydkoi, Former Russian Minister of Culture.[87] "Today, when nationalistic ideas have become more and more influential in Russian life, even the trophy artworks whose existence has been acknowledged are being turned into hostages of politics."[88]
Some of the paintings in question are known to have been seized by the Nazis from Jewish families.[89] Heirs of these families saw their paintings on display in Russia's state-owned Hermitage museum, and asked for the paintings to be returned. Russia answered with a flat refusal.[90] Russia has demonstrated little interest in making a distinction between art taken from Nazis and art that rightfully belonged to private individuals.[91]
Russia's cultural agency has also become increasingly wary of lending their paintings to other museums for display. After Russia refused to lend paintings to Britain for fear that the paintings would be seized in connection with a dispute about the rightful ownership of the paintings, Britain passed a law stating that "descendants of the original owners cannot bring forward claims on British soil."[92]
In addition to the legal issues discussed below, there are many practical problems with reclaiming the artworks. For instance, many of them have been so badly damaged and neglected that they cannot be restored.[93] This deterioration has been exacerbated by the fact that restoration did not take place for many years because the Russians were paranoid about keeping the stolen and hidden art a secret.[94] Finally, it may be difficult even to locate the art. In one instance, some pieces of art had been forgotten after being brought to Russia, and were found in a basement when a government agency was moving out of the building.[95] Given the vast numbers of works that are still unaccounted for, it seems very likely that there are other forgotten hoards of art in Russia that have yet to be discovered even by the Russian government.
IV. Legal precedent
It is a sad fact that stolen art has found its way onto the walls of museums around the world. In many cases, all the rightful owners have to do to recover the work is ask for it. When the Netherlands discovered that it was in possession of two hundred paintings that the Nazis had stolen from Jews, it voluntarily returned the paintings to the heirs of the original owners.[96] Similarly in the United States, a Utah museum promptly relinquished one of its paintings when it discovered that it had been stolen by the Nazis, stating simply: "The evidence was overwhelming that the painting was stolen . . . It had to be returned."[97] Unfortunately the Russian government, with a few exceptions, has simply refused to entertain any requests that it return stolen art.[98] Therefore, legal action will almost certainly be necessary.
A. International Law
Russia is in violation of the Hague Convention. In 1899 and 1907, international peace conventions held in Hague, Netherlands, sought to protect art from being damaged or destroyed by war.[99] These well-intentioned, if impotent, documents were signed by both Germany and Russia.[100] Russia reaffirmed its commitment to the Hague convention at the beginning of WWII. In 1956 Russia and 99 other countries signed the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, a commitment to do whatever possible to protect culturally valuable places and things.[101] That version directly addressed actions like those taken by Russia when it stated that seized art "shall never be retained as war reparations."[102] However, the Convention does not seem to contemplate that member nations would willfully violate its provisions, and is toothless in that circumstance. Sanctions under the Convention are dealt with in Article 28, which reads in its entirety: "The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention."[103] Therefore, it does not seem that the Convention will be useful as the basis for a lawsuit, despite the clarity with which Russia's violation of it is demonstrable.
Russia is in violation of the Good Neighborhood and Cooperation Treaty. Russia and Germany signed the Treaty in 1990.[104] Two years later, both governments reaffirmed their commitments.[105] Article 16 of the Treaty requires the return of "lost or unlawfully transferred art treasures which are located in their territory"; Russia appears to argue that they took possession in Germany, not after taking them to Russia and holding them there until the 1999 Russian law declared them Russian property.[106] In essence, Russia argues that the loot was not "unlawfully removed".[107] That argument is contrary both to the plain meaning of the words and the way the international community understands the document; therefore, Russia has violated the Treaty.
Russia may be in violation of the 1947 Peace Treaties. The Treaties contained a provision by which the Axis powers agreed that state property or property of nationals of that state may be seized as reparations.[108] However, this would only apply to items that were in Russian territory at the time the treaty was ratified.[109] Items that were in Germany - or other countries, for that matter - when they were seized by Russia were not included in the agreement.[110] Since the art in question was in Germany, it would seem that Russia is in violation of the Treaties. In opposition, it could be argued that parts of Germany were Russian territory when it took control of them. In addition, Russia could argue that it did not actually take possession of the art until 1999. To conclude, the most faithful reading of the Treaties would likely find that Russia is in violation.
Russia is in violation of the International Council for Museums. Russia's state museums were well represented at the Council's 2007 General Conference.[111] The Council has a code, which provides that it is a violation of ethical standards for museums to keep objects which they know were removed illegally from another country.[112] Specifically, section 6.4, titled "Cultural Objects From an Occupied Country," states: "Museums should abstain from purchasing or acquiring cultural objects from an occupied territory and respect fully all laws and conventions that regulate the import, export and transfer of cultural or natural materials."[113] Sections 6.1 through 6.3 instruct museums to return works they receive in violation of these principles.[114]
Russia is in violation of Resolution 1205 of the Council of Europe. Russia is a member of the Council of Europe.[115] In 1998, the Council passed Resolution 1205, which calls for the return of stolen Jewish property.[116] The vote on the resolution was unanimous.[117] The resolution applies to property which is "in private and public hands."[118] Although quite short in length, the resolution directly addressed the situation in Russia, twice stating that "looted Jewish cultural property remains dispersed" throughout Russia, and that "Russia in particular should keep open its files on Jewish heritage."[119] As stated elsewhere in this paper, there are many documented cases of art, originally belonging to Jews, which is now in possession of Russian museums. Moreover Russia has refused to return Jewish-owned art, despite the fact that it is required to do so by its own laws, as well as multiple international agreements to which it is a party.
The Convention for the Protection of Human Rights ("CPHR") is unlikely to support a claim for the return of stolen art. In 1998 a prince from Liechtenstein brought a claim in a German court for the recovery of a painting that was being lent to a German museum from the Czech Republic,[120] a country that possesses art confiscated from Germany after the war.[121] That German court denied the claim.[122] The European Court of Human Rights affirmed the German court on two grounds: first, that German courts could not hear cases for restitution of items taken in World War II under the Benes-Decrees, a treaty;[123] and second, that the confiscations are clearly a non-issue under the CPHR.[124] For these reasons, it seems unlikely that the Court will hear other claims for restitution of art held by Russia.
On a related note, the issue of the Czech Republic's confiscation of art from Germany after the war was raised when the European Union was determining whether it should admit that nation; both EU law and the decisions of the European Parliament were found to support the position that such confiscations cannot be contested using EU law.[125]
The International Court of Justice ("ICJ") is unlikely to have jurisdiction over Russia in disputes over stolen art. The ICJ is the principle judicial body of the United Nations.[126] Russia is a member of the United Nations.[127] However, Russia, including its prior governments, has only been subject to one ruling by the ICJ: the 2008 ruling on the conflict between Georgia and Russia.[128] Jurisdiction in that case was based on the Committee on the Elimination of Racial Discrimination ("CERD"),[129] of which Russia is a member.[130] Unless the court finds that racism, perhaps in the form of art stolen from Jews, is sufficiently central to the claim for stolen art that CERD is implicated, then it is unlikely Russia will be subject to the jurisdiction of the ICJ for this type of case.
This is by no means a comprehensive list of the various international agreements that Russia has violated. Unfortunately, most of these agreements do not provide any course of enforcement against the member states; the signatories are bound only by their word. Therefore, further discussion of them may not be helpful. The frequency and blatancy with which Russia has violated such agreements is a good indicator of the likelihood that they will compel Russia to return the art in the future.
B. Russian Law
After retaining possession for fifty years, Russia officially declared itself owner of the looted art in 1998 when it passed the "Federal Law on Cultural Valuables Displaced to the U.S.S.R. as a result of World War II and Located on the Territory of the Russian Federation."[131] The "Fundamental goals" listed at the beginning of the bill were: "to protect said valuables from misappropriation and prevent their illegal export beyond the borders of the Russian Federation as well as their unlawful transfer to whomsoever;" and "to establish the necessary legal basis for treating said cultural valuables as partial compensation for the damage caused to the cultural property of the Russian Federation as a result of the plunder and destruction of its cultural valuables by Germany and its war allies during World War II".[132] In article 3, the law states it "shall be applicable to all cultural valuables displaced to the U.S.S.R. as a result of World War II located on the territory of the Russian Federation, irrespective of the actual possessor and the circumstances leading to this actual possession."[133] Article 15 provides that Russia will exchange "displaced cultural valuables" with another country only where they get something of "equivalent value" in return.[134]
The only concession in the bill is that article 8 provides a right to reclaim religious objects or "Cultural valuables which belonged to individuals who were deprived of these valuables because of their active struggle against Nazism (Fascism), including their participation in national resistance against the occupation regimes of former enemy states and collaborationist regimes, and (or) because of their race, religion or national affiliation."[135] That right came with a host of conditions: claims had to be filed by October 21, 1999; claimants had to have their government file the claim; and it was not always clear which governments were able to file claims.[136] Additionally, Charles Goldstein, Counsel for the Commission for Art Recovery, has said: "The actual practices followed by Russia make it amply clear that the few provisions allowing for the return of confiscated artworks from Nazi victims were mere window dressing for an intended blanket nationalization."[137] Not one instance of true restitution of art to Jewish owners had occurred as of 2008, nine years after claims were to have been submitted.[138]
Whatever else may be said about it, this law is a model of clarity. It is brief, uses unequivocal language, and establishes Russia's position on the matter; that is, it will not entertain any claims for this art. All other countries that have addressed the issue have concurred that Russia's "restitution" efforts after the war were not in accordance with international law that was in place at that time the art was removed.[139] The fact that much of the art taken did not belong to Germany in the first place makes the Russian position even more ludicrous.[140] But the art works have become a rallying point for Russian nationalists, who believe that by refusing requests to return the art they demonstrate that Russia is still a great power.[141]
In addition to the political climate, the structure of the Russian government stands in the way of transferring art back to its original owners. The Russian minister of culture and the director of a state museum made an agreement to return a stolen painting to the heirs of its rightful owners in 1995, but the agreement was ultimately unenforceable.[142] Even if the Russian president himself decided to give a painting to an heir of its original owner, there is no guarantee that the gift would be effective; the painting might very well be seized by customs before it could leave the country.[143]
C. The relevant law of other countries
1. Britain
Britain's treatment of stolen art is mixed. Britain has a horrible record for returning stolen paintings discovered in its own museums. Furthermore, it has passed recent legislation to protect stolen works on loan from other countries. However, it does provide a very attractive forum for suits to seize and recover art that is physically present in Britain but is not in possession of a state museum.
The British government has failed to establish a consistent reason for its failure to return stolen art that hangs in its museums. In one bizarre case, the British Museum determined that it held drawings that had been stolen by the Nazis and attempted to return them to the victim's heirs.[144] The U.K. High Court held that the museum did not have the right to return the drawings.[145] The presiding Justice wrote: "No moral obligation can justify a disposition by the Trustees of an object forming part of the collections of the museum."[146] The court went on to state that if the museum wanted to return the art, it would have to convince the British government to change the current law concerning museum collections.[147]
In contrast, the British government, when responding to different request that an unrelated exhibit be returned, stated that it would be powerless to return the exhibit because such things belonged to the museum, not to the nation.[148] Museum director Robert Anderson stated in 2004 that since theirs is a "Museum of the world" that "transcends national boundaries," there was no need for objects to be restored.[149] Put another way, they seemed to argue that it was not actually Britain that possessed the exhibit, but that the whole world had possession.[150]
In addition, Britain passed a law that gives immunity to art works that it borrows from other countries.[151] This immunity covers any seizure based on criminal or civil trial, as well as seizure by police.[152] If British authorities were to seize a painting covered by the law, it would require that the painting be returned and could even award damages.[153] However, the law does allow exceptions where seizure is required to comply with international or EU law.[154] This may be a useful loophole if a favorable judgment is procured in another jurisdiction, but the law has received fierce criticism for protecting stolen art by making "the United Kingdom a safe haven for stolen, illicitly traded, criminally acquired and looted works of art well as for those who have assets but unpaid debts."[155] Moreover, when the law was being discussed in the House of Lords, Lord Janner objected to the bill because it would be in conflict with the 1998 Washington conference on Holocaust-Era Assets, stating: "At present, if a Holocaust survivor sees a painting or object that belonged to his or her family, they can go and claim. If the Bill becomes law in its present form, if they see such property, they will be unable to prevent people who have brought property and exhibited it in this country at least keeping it, hiding it or taking it home. That is totally wrong and immoral and is not a fair balance."[156]
Conversely, British case law does provide strong protection for stolen paintings that are discovered in Britain but that are not in the possession of British museums. In City of Gotha v. Sotherby's, the German government brought a suit to recover a painting that was up for auction at Sotherby's in London. [157] The German statute of limitations was at question in the case.[158] The presiding judge stated that under the 1984 Foreign Limitations Act, British judges may disregard foreign statutes of limitation if they conflict with British public policy.[159] In the case at hand, public policy was against purchasers of stolen art.[160] The painting was returned to a German museum and the court awarded attorney's fees.[161]
2. Switzerland
The Swiss have a resolution calling for the restitution of stolen art. Shortly after the war, the Swiss Federal Council passed the Resolution on Looted Objects, which restored any object that had been stolen or procured through unfair transactions.[162] The law categorically required bona fide purchasers to comply with the law, and provided that the government would reimburse any bona fide purchasers that lost objects as a result of the law.[163] In addition, the Swiss had a special federal court, called the "Raubgutkammer," to hear the first claims for restitution; currently, claims must be brought in the regular courts.[164]
There were no on-point cases in Switzerland as of 2004.[165] However, a Swiss corporation named Noga has seized numerous Russian assets, including 54 art works on loan from a Russian Museum, to secure payment of $63 million it claims it is owed by the Russian government.[166] A Swiss court ruled that the seizure of the art was illegal, because Swiss law "guaranteed the protection of Russian art objects against any claims."[167] In a seemingly duplicative statement made in 2009, the Culture Minister from Russia and the head of the Department of Home Affairs from Switzerland drafted a document declaring that the Swiss law would be altered to guarantee that Russian art on loan in Switzerland would never be seized again.[168] A Russian news publication quoted the Russian Federal Agency for Culture and Cinematography as commanding the Swiss to "cease their lawlessness;" the article went on to say that "Swiss authorities have egg on their faces" as a result of the incident.[169]
3. France
France passed recent legislation establishing a unique legal mechanism for the recovery of stolen art. In 1999, the French government enacted a law that created a committee that was solely dedicated to helping victims of art theft pursue their claims.[170] Moreover, the law specifically refutes the need for strict adherence to statutes of limitation and jurisdictional requirements.[171] This committee may be less powerful than it appears, though, because it acts more as a mediator than as an adjudicative body.[172] Despite an anti-seizure law for loaned art similar to that of Britain, supra, and the U.S., infra, France has strong case law that is sympathetic to plaintiffs in these types of cases and even suggests that possession of stolen art can be treated as a crime.[173]
4. United States
The U.S. has a "growing reputation as the friendliest place on earth for people looking to reclaim stolen art."[174] In comparison, European laws are much less generous to people trying to recover stolen art, and are more likely to disqualify claims based on statutes of limitation.[175] Unfortunately, a favorable verdict under those circumstances may be a pyrrhic victory, since enforcing it may be impossible; the U.S. might seize paintings if they came into the U.S. or confiscate foreign assets, but it is not at all certain that these "extreme" methods would be used.[176] In any event, the U.S. Supreme Court case of Altmann v. Austria paved the way to sue foreign countries in U.S. courts for the return of stolen paintings.[177]
i. Altman v. Austria and the Foreign Sovereign Immunities Act
In Altmann, a U.S. district court held that Altmann, a U.S. citizen, could bring a claim against the Austrian government for the return of paintings owned by her family before they were stolen by the Nazis. [178] The paintings in question were by the Austrian artist Gustav Klimpt, and the Austrian government refused to return them both because a will had left the paintings to Austria upon the death of the original owner,[179]a provision that was never performed because they were stolen first, and because the paintings "became synonymous with Viennese culture and Austrian pride."[180] Austria was apparently unperturbed by the fact that in 1998 the Austrian parliament required all state museums must make certain that they did not have any art stolen during the war.[181]
The U.S. Supreme Court affirmed the district court, basing jurisdiction on the Foreign Sovereign Immunities Act, 28 U.S.C. 1330 ("FSIA").[182] Although that law affords general immunity to foreign states in U.S. courts, 1605(a)(3) disavows immunity in some cases:
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case-
(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States. [183]
The parties settled out of court before the case could proceed, but subsequent decisions by lower courts in similar cases have delineated the boundaries of "present in the U.S. in connection with commercial activity," and "owned and operated by an agency or instrumentality of the foreign state" in this context.
Present in the U.S. only requires that the object be within the boarders at the time the suit is filed. In Malewicz v. City of Amsterdam, the painting in question was on loan from a foreign museum.[184] The suit was filed while the painting was in the U.S., but it was removed before the start of the trial.[185] The court noted that the location of the painting at the time the suit was filed was the important factor.[186] The Malewicz court also held that lending artworks to U.S. museums, even by non-profit organizations, is clear evidence of commercial activity.[187]
A more detailed discussion of the meaning of "commercial activity" is outside the scope of this paper for two reasons: it is closely entwined with well-established areas of U.S. law and is far too case-specific to be dealt with adequately here. But interesting arguments could be made based on the language used by the Malewicz court: "that property or any property exchanged for such property is present in the United States."[188] Could the expansive language of this clause be interpreted as allowing a suit against a state agency that conducts commercial activity in the United States if it owns or operates property that was acquired in a way that can be liked to stolen art? If so, would that extend to situations where the art is no longer in the possession of the agency? With the sheer number of objects that were taken by Russia, it would seem that this clause could almost always be satisfied. The author was unable to find any cases directly on-point.
The court in Garb v. Republic of Poland defined the clause "[O] owned and operated by an agency or instrumentality of the foreign state."[189] The court held that the deciding factor is whether the gravamen of the organization's function is to govern or to engage in commerce.[190] Using that test, the court found that the Ministry of the Treasury of Poland was not an agency or instrumentality of Poland.[191] The court in Cassirer v. Kingdom of Spain applied the same test and came to a different conclusion.[192] It held that a private foundation which had possession of a painting stolen by the Nazis, displayed it in a Spanish palace, received much of its funding from the Spanish government, and was required to have a certain number of representatives from the Spanish government on its board, was an agency or instrumentality. [193]
An American Jewish foundation was recently successful in suing the Russian government under the FSIA for the return of cultural objects taken by Russia in Poland. In Agudas of the U.S. v. Russia,[194] the court found that the U.S. was an appropriate forum to hear such a case,[195] that it was not necessary to exhaust any remedies that may have been available in Russia, especially since those remedies were "plainly inadequate,"[196] and that the "act of state doctrine," under which U.S. courts will not examine the taking of property by a foreign government where that taking occurred within the territory of the government, did not apply because the items were taken in Poland and not Russia.[197] The court raised but declined to reach the issue of whether takings that occurred in Germany when the Soviet Union was occupying Germany after the war would have been covered by the act of state doctrine.[198]
ii. The Trading with the Enemy Act
Another case which upheld seizure of Nazi property by the U.S. government may weaken efforts to get possession of Russia's looted art. Price v. United States[199] dealt with paintings created by Hitler, which he gave to a friend,[200] and which were later confiscated by the U.S. Government.[201] Price, an American businessman and Hitler art enthusiast, bought the rights to the paintings and other Hitler paraphernalia.[202] He then sued the U.S. government for conversion, and was originally awarded 8 million dollars.[203] That decision of the district court was reversed on appeal because sovereign immunity prevented the court from establishing jurisdiction.[204]
There are two holdings from the Price case which may make it more difficult for plaintiffs seeking the return of Russian art in American courts to prevail. First, it held that the taking that resulted in the U.S. having possession of the paintings occurred when they were officially seized in Germany.[205] The fact that the Trading With the Enemy Act, 12 U.S.C. 95(a) 28 U.S.C.A. 2680, ("TWEA") allows the U.S. government to seize any and all property that belongs to its enemies, in this case Nazi Germany, and dispose of that property as it sees fit was already settled.[206] TWEA is an American law that would have no direct bearing on Russia. But the court's holding that the U.S. took possession in Germany may make it more difficult for similar claims that attempt to argue that Russia did not take possession of the art in question until 1999, and therefore is not immune to suite under a similar provision of the 1947 Peace Treaties.[207]
Second, the court resolved a conflict of law question in a manner that is unfavorable to plaintiffs who argue that an exception to sovereign immunity exists. Price attempted to argue that the Federal Tort Claims act, which provided for a broader exception to immunity than the TWEA, should apply.[208] Specifically, Price argued that if the claim arose out of the way a government employee used power from the TWEA, then sovereign immunity did not attach.[209] The government rejected his claim, upholding the stronger and more sweeping sovereign immunity of the TWEA and stating that his claim could only be "cognizable, if at all, under the TWEA".[210] Again, since TWEA is similar to the 1947 Peace Treaties, by which Russia at least pretends to be bound, these holdings may be relevant. As a practical matter, the fact that Price is a wealthy businessman seeking Hitler's paintings for personal gratification, rather than a survivor of the Holocaust seeking the return of a stolen family heirloom, may limit the future application of these holdings.
iii. Holocaust Victims Redress Act
The Holocaust Victims Redress Act further demonstrates the U.S.'s commitment to returning stolen art to its rightful owners, but does not provide a private right of action. The Act is designed to restore items and money seized from Nazi Germany to survivors of the holocaust, stating that "[i]n the aftermath of the war, art and other assets were transferred from territory previously controlled by the Nazis to the Union of Soviet Socialist Republics, much of which has not been returned to its rightful owners."[211] The Act goes on to state that "it is the sense of Congress that consistent with the 1907 Hague Convention, all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner."[212] However, the Act does not provide a private right of action, by which a plaintiff may bring a claim for the return of the type of items discussed in the bill, as established in Orkin v. Taylor.[213] That 2007 case dealt with a Van Gogh painting that the Nazis had stolen from its Jewish owner during WWII.[214] The original owner's descendants sued for the return of the painting from American actress Elizabeth Taylor, who eventually came to possess it.[215] The court held that Congress never intended for the bill to enable lawsuits of this type when it passed the act, and dismissed the claim.[216]
iv. Criminal law as a means of restoring stolen art
Artworks stolen by Russia may be returned through criminal proceedings. In U.S. v. Aleskerova, art stolen by the Red Army from Germany, that was in the possession of the KGB at one point, and was later displayed in the Baku Museum, was returned to Germany after being stolen from that museum.[217] The thief was apprehended by U.S. authorities, whom then returned much of the art to the German government.[218] This case, and the similar case of U.S. v. One Tintoretto painting,[219] demonstrate that criminal proceedings can be used to return art stolen by Russia to its original owners. However, the art in this case may well have been returned to Russia by the Baku Museum if they had not been stolen first. Moreover the thief, or at least the most recent thief, was an individual, not a government. The actions taken by the U.S. government in this case are encouraging, [220] and may be useful in very narrow circumstances, but the present case law would require vast expansion to be generally useful as a means of returning stolen art.
v. U.S. protects art loaned from other countries
The U.S. will not confiscate art that is on loan from other countries. Similar to the British law discussed above, the U.S. has a statute that provides immunity from seizure for loaned art.[221] This law provides immunity in both state and federal courts.[222]
vi. International plaintiffs in U.S. courts
There does not appear to be an on-point case where foreign nationals or states have directly sued the Russian government for the return of art stolen after WWII. However, the FSIA does, as a general principle, grants jurisdiction for U.S. courts to hear claims by foreign plaintiffs against foreign governments.[223][224] Therefore, the fact that there is currently a dearth of precedent does not mean that such a claim could not be successful. Moreover, the Supreme Court has stated that granting immunity to sovereign countries is "a matter of grace and comity" which may be revoked if the political branches of the government decide that U.S. courts should hear a particular type of claim.
On a more practical note, the laws in the U.S. can vary significantly from state to state. The statute of limitations can be very short, and has served to nullify many suits of this type. Even where a claim is brought in a federal court, that court may apply the law from the state in which it is located. Similarly, some of the court decisions cited previously will only be binding in a single state or a few states. For this reason, it is very important to become familiar local law before proceeding. In some cases, it may be possible to choose between forums in order to try the case under the most favorable law.
V. Conclusion
Irina Antonova helped unload the art off the trucks from Germany when it arrived in Russia.[225] Speaking about the recent international efforts to get Russia to return its loot, she said that it is "the will of history" that the Russians should have the art, and that reclaiming the art is "possible only by force, not by law."[226] Russian federal law and the Russian government both seem to echo this sentiment. The current trend in international law seems to be, at long last, toward recognizing the need to restore the art to its rightful owners. Not only has Russia deprived possession from the rightful owners, it has deprived the public the opportunity to use the art for its natural purpose: viewing. Fifty years is long enough. The recent trend in international law is decidedly in favor of restitution. The efficacy of this developing law, in an area where so many international treaties have failed, remains to be seen.
* The author expects to graduate from Gonzaga School of Law in 2009. He wishes to thank his family for all their support and his friends for forcing him to have a social life during law school.
[1] Judy Dempsey, East German church recovers stained-glass windows from Russia, International Herald Tribune, Dec. 21, 2008, available athttp://www.culturalheritagelaw.org/news-issues/news-issues-in-cultural-heritage/east-german-church-recovers-stained-glass-windows-from-russia/.
[2] Id.
[3] Judith H. Dobrzynski, A Bulldog on the Heels of Lost Nazi Loot, N.Y. Times, Nov. 4, 1997, available at http://www.writing.upenn.edu/~afilreis/Holocaust/stolen-art.html.
[4] Charles Hawley, New Handbook Helps Descendents Reclaim Nazi Loot, Spiegel Online International, Jan. 31, 2007, available at http://www.spiegel.de/international/0,1518,463423,00.html.
[5] Dempsey, supra note 1.
[6] Id.
[7] Simon Houpt, Museum of the Missing: A History of Art Theft 68 (Sterling Publishing Co. 2006).
[8] Id. at 25.
[9] Charles A. Goldstein, The Russian Position: Trophy Art Belongs to Russian as Compensation for World War II Cultural Losses, Harvard Law School Symposium Brief 1 (2008), available at http://www.commartrecovery.org/docs/THE_RUSSIAN_POSITION_2008II.DOC.
[10] Houpt, supra note 7, at 25.
[11] Id. at 31.
[12] Id.
[13] Id. at 20.
[14] The Rape of Europa, (Menemsha Films 2008).
[15] Houpt, supra note 7, at 12.
[16] Id.
[17] The Rape of Europa, supra note 14.
[18] Houpt, supra note 7, at 12.
[19] Id. at 36.
[20] Marc Fisher, The Paintings of Adolf Hitler, The Washington Post, Apr. 21, 2002, available at http://www.fpp.co.uk/Hitler/artist/Price/WashingtonPost210402b.html.
[21] Houpt, supra note 7, at 36.
[22] Fisher, supra note 20.
[23] The Rape of Europa, supra note 14.
[24] Houpt, supra note 7, at 36.
[25] Fisher, supra note 20.
[26] Price v. United States, 69 F.3d 46, 48 (1995).
[27] Fisher, supra note 20.
[28] Id.
[29] Ralph Blumenthal, New efforts to recover Nazi plunder; but pessimism grows for recoveries, New York Times, Feb. 27, 2003, at E1, available athttp://query.nytimes.com/gst/fullpage.html?res=9C02EFD7143CF934A15751C0A9659C8B63.
[30] The Rape of Europa, supra note 14.
[31] Blumenthal, supra note 29; The Rape of Europa, supra note 14.
[32] The Rape of Europa, supra note 14.
[33] Lynn H. Nicholas, The Rape of Europa: The Fate of Europe's treasures in the Third Reich and the Second World War 187 (1994).
[34] Id. at 192.
[35] Id. at 187.
[36] The Rape of Europa, supra note 14.
[37] See Houpt, supra note 7, at 37.
[38] Robert Hughes, The Spoils of War: Russia's new displays of art looted from Germany reignite a debate over who rightfully owns such plunder, Time Domestic, Apr. 3, 1995, available at http://www.dhh-3.de/biblio/news/1995/0403a/index.html.
[39] The Rape of Europa, supra note 14.
[40] Id.
[41] Houpt, supra note 7, at 36.
[42] Id.
[43] Id. at 40.
[44] Id. at 56.
[45] Konstantin Akinsha and Grigorii Kozlov, Beautiful loot: the Soviet plunder of Europe's Art Treasures x (Random House, Inc. 1995).
[46] The Rape of Europa, supra note 14.
[47] Nicholas, supra note 33, at 194.
[48] The Rape of Europa, supra note 14.
[49] German, Russian officials seek joint commission to track looted artworks, CBC News (2009), available at http://www.cbc.ca/arts/artdesign/story/2009/03/03/lootedart-russia-germany.html.
[50] Houpt, supra note 7, at 59-60.
[51] Id.
[52] Id.
[53] The Rape of Europa, supra note 14.
[54] Phil's World War II Pages: World War II Fatalities, at http://www.secondworldwar.co.uk/casualty.html (last visited on Apr. 9, 2009).
[55] Akinsha, supra note 45, at x.
[56] The Rape of Europa, supra note 14.
[57] Akinsha, supra note 45, at ix.
[58] See id. at 24.
[59] Id. at 210.
[60] Id. at 20.
[61] Id. at ix.
[62] Id. at 144.
[63] Hughes, supra note 38.
[64] The Rape of Europa, supra note 14.
[65] Houpt, supra note 7, at 63.
[66] The Rape of Europa, supra note 14.
[67] Akinsha, supra note 45, at 184.
[68] Id. at 185.
[69] Id. at 185-86.
[70] Id. at 190.
[71] Id. at 113.
[72] See Akinsha, supra note 45, at 103.
[73] Id. at 144-45.
[74] Id. at 186.
[75] Id.
[76] Id. at 194.
[77] Houpt, supra note 7, at 61.
[78] The Rape of Europa, supra note 14.
[79] Akinsha, supra note 45, at 204.
[80] Id. at 5.
[81] Judith Dobrzynski, Claims for Art Collection Pose a Challenge to Hungary, New York Times, July 7, 1998, at 2, available at http://query.nytimes.com/gst/fullpage.html?res=9D05E3DD133EF934A35754C0A96E958260&sec=&spon=&pagewanted=2; see also John Varoli, Russians Reveal Hoard of 46,000 Art Treasures Stolen by Nazis, February 7, 2008, available at http://www.bloomberg.com/apps/news?pid=20601088&refer=muse&sid=ahPiqqiW9wqg.
[82] See id. at 257-58.
[83] Id.
[84] Id.
[85] Houpt, supra note 7, at 63.
[86] The Rape of Europa, supra note 14.
[87] Id.
[88] Akinsha, supra note 45, at xii.
[89] Id. at 258-59.
[90] Dobrzynski, supra note 81, at 2.
[91] Houpt, supra note 7, at 63.
[92] Russian art show gets green light, BBC News, Dec. 31, 2007, available at http://news.bbc.co.uk/2/hi/entertainment/7165155.stm (the paintings in that exhibit had been seized from Russian citizens in the early 1900s).
[93] Akinsha, supra note 45, at 207.
[94] Id. at 222.
[95] Id. at 230.
[96] Houpt, supra note 7, at 68.
[97] Dave Gagon, Painting Returned to Rightful Owners, Deseret News, Apr. 2, 2004, available at http://findarticles.com/p/articles/mi_qn4188/is_20040402/ai_n11449006.
[98] Varoli, supra note 81.
[99] Houpt, supra note 7, at 62.
[100] Akinsha, supra note 45, at introduction xi.
[101] Houpt, supra note 7, at 62.
[102] Who Own's Russia's War Booty?, New York Times, (1994) available at http://query.nytimes.com/gst/fullpage.html?res=9F02E4DF1E39F934A1575BC0A962958260&n=Top/Reference/Times%20Topics/Subjects/A/Art%20.
[103] Convention for the Protection of Cultural Property in the Event of Armed Conflict art. 28 (1956), available at http://www.icomos.org/hague/HagueArt28.html.
[104] Pierre d'Argent, The Russian Law on Removed Cultural Property: Some International Law Remarks, Spoils of War Newsletter (1997) available at http://www.beutekunst.de/bremen/sow4/rlaw2.html.
[105] Akinsha, supra note 45, at 251.
[106] d'Argent, supra note 91.
[107] Akinsha, supra note 45, at 253.
[108] d'Argent, supra note 91.
[109] Id.
[110] See id.
[111] 21st General Conference List of Participants, International Council for Museums, 2007, available at http://icom.museum/download/eng_aug2007/TeilnehmerAdressen_sortiert.pdf.
[112] Akinsha, supra note 45, at 235.
[113] International Council for Museums, ICOM Code of Ethics for Museums, 2006, available at http://icom.museum/ethics.html#intro (last visited Mar. 31, 2009).
[114] Id.
[115] Council of Europe, The Council of Europe's Member States, 2007, at http://www.coe.int/T/e/com/about_coe/member_states/default.asp (last visited Mar. 31, 2009).
[116] Parliamentary Assembly, Looted Jewish Cultural Property, Resolution 1205 (1999), available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/ERES1205.htm [hereinafter "Resolution 1205"] (last visited Mar. 31, 2009).
[117] Claims Conference: The Conference on Jewish Material Claims Against Germany, Artworks and Other Cultural Property Restitution and Compensation: Resolution 1205 of the Council of Europe, at http://www.claimscon.org/index.asp?url=artworks/resolution1205 (last visited Mar. 31, 2009).
[118] Resolution 1205, supra note 116 (appearing to mean it applies to all property, whether it is held by the government or private persons).
[119] Id.
[120] Case Concerning Certain Property (Lichtenstein v. Germany), 2005 I.C.J. 6, 15 (Feb. 10).
[121] Jochen A. Frowein, Ulf Bernitz, and Lord Kingsland, Legal Opinion of the Benes-Decrees and the accession of the Czech Republic to the European Union, European Parliament, 7 (2002), available at http://www.kbdesign.sk/cla/projects/benes/related/legal_opinion_benes_decrees.htm.
[122] Case Concerning Certain Property, supra note 107.
[123] Frowein, supra note 121, at 14.
[124] Id.
[125] Id. at 11.
[126] Peter Roudik, International Court of Justice: International Law - Ruling on Georgia v. Russian Federation, The Library of Congress, Oct. 20, 2008, available athttp://www.loc.gov/lawweb/servlet/lloc_news?disp0_730_text.
[127] United Nations, United Nations Member States, at http://www.un.org/members/list.shtml (last visited Mar. 31, 2009).
[128] Rourdik, supra note 126.
[129] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), No. 2008/35, at 1, 3 (Oct. 15), available at http://www.icj-cij.org/docket/files/140/14803.pdf.
[130] Office of the High Commissioner of Human Rights, Fact Sheet No. 12, The Committee on the Elimination of Racial Discrimination, at http://www.unhchr.ch/html/menu6/2/fs12.htm#annexa (last visited Apr. 10, 2009).
[131] Федеральный Закон по Культурным Ценностям, Перемещенным к СССР в результате Второй мировой войны и Расположенный на Территории Российской Федерации (Federal Law on Cultural Valuables Displaced to the U.S.S.R. as a result of World War II and Located on the Territory of the Russian Federation) (1998) N 64-FZ, available at http://docproj.loyola.edu/rlaw/r2.html.
[132] Id.
[133] Id. at art. 3.
[134] Id. at art. 15.
[135] Id. at art. 8.
[136] The Documentation Project, The Russian Law on Cultural Property Displaced to the U.S.S.R. as a Result of WWII: Checklist for Claimants, at http://docproj.loyola.edu/rlaw/r5.html (last visited Apr. 5, 2009).
[137] Goldstein, supra note 9, at 8.
[138] Id.
[139] Id. at 6.
[140] Id.
[141] Akinsha, supra note 45, at 255.
[142] Id. at 257.
[143] Id.
[144] Houpt, supra note 7, at 21.
[145] Id.
[146] Id.
[147] Id.
[148] Id. at 28.
[149] Houpt, supra note 7, at 26, 28-29 (the dispute was over The Elgin Marbles, sculptures from the Ottoman empire that were acquired with permission in 1801-1805).
[150]Id.
[151] Alexander Horne, Philip Ward, and Vincent Keter, Tribunals, Courts and Enforcement Bill Research Paper, House of Commons Library 48 (2007), available athttp://www.parliament.uk/commons/lib/research/rp2007/rp07-022.pdf.
[152] Id.
[153] Id. at 50.
[154] Id. at 48.
[155] Id. at 50 (quoting the Commission for Looted Art in Europe).
[156] Horne, supra note 151, at 52.
[157] City of Gotha v. Sotherby's [1998] 1 WLR 114 (Q.B.), available at http://www.iuscomp.org/gla/judgments/foreign/gotha1.htm#*.
[158] Id.
[159] Id.
[160] Id.
[161] Id.
[162] Kurt Siehr, Restitution of Looted Art in Private International Law, in Claims for The Restitution of Looted Art 75 (edited by Marc-Andre Renold and Pierre Gabus, Schulthess Medias Juridiques SA 2004).
[163] Id. at 76.
[164] Id. at 76-77 ("Raubgutkammer" means "booty chamber").
[165] Id. at 79 (discussing the absence of cases on looted art objects).
[166] See e.g., Steven Lee Meyers, Swiss Businessman Tries to Seize Art in a Dispute with Russia, International Herald Tribune, WORLD (Nov. 17, 2005).
[167] Id.
[168] Switzerland guarantees inviolability of all Russian art objects brought for shows, Russian and CIS General Newswire, Mar. 1, 2009.
[169] Igor Sedykh et al., Noga's Arrest a No Go, Kommersant, Nov. 17, 2005, LIFE, available at http://www.kommersant.com/page.asp?idr=1&id=627106.
[170] Siehr, supra note 162, at 117.
[171] Id. at 118-19.
[172] Id. at 119.
[173] Id. at 119-123 (dealing with Law No. 94-679 and Cour de Cassation, Chambre Criminelle, (June 4, 1998)).
[174] Randy Dotinga, US Lawsuits Pursue Lost Art, Christian Science Monitor, July 5, 2005, available at http://147.222.27.176/exchweb/bin/redir.asp?URL=http://www.csmonitor.com/2005/0705/p03s01-alar.html.
[175] Id.
[176] Id.
[177] Id.
[178] Altmann v. Republic of Austria, 142 F. Supp. 2d 1187 (C.D. Cal. 2001).
[179] Republic of Austria v. Altmann, 541 U.S. 677, 683 (2004).
[180] Houpt, supra note 7, at 67.
[181] Id.
[182] Republic of Austria, 541 U.S. at 685.
[183] Id. at 685-86.
[184]Malewicz v. City of Amsterdam, 362 F.Supp. 2d 298, 309 (D.C. 2005).
[185] Id.
[186] Id. at 309.
[187] Id. at 313-14; but see C.3.v, infra.
[188] Malewicz, 362 F. Supp. at 305.
[189] Garb v. Republic of Poland, 440 F.3d 579 (2006).
[190] Id. at 593.
[191] Id. at 595.
[192] Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157, 1164 (C.D. Cal. 2006)
[193]Id.
[194] Agudas Chasidei Chabad of the U.S. v. Russian Federation, 528 F.3d 934 (D.C. Cir 2008).
[195] Id. at 950.
[196] Id. at 948.
[197] Id. at 951-52.
[198] Id.
[199] Price v. U.S., 69 F.3d 46, 48 (5th Cir. 1995).
[200] Price v. U.S., 707 F.Supp. 1465, 1468 (S.D. Tex. 1989) (no longer good law for reasons unrelated to this citation).
[201] Id.
[202] Price, 69 F.3d at 48.
[203] Id.
[204] Id. at 49-50
[205] Id. at 51-52.
[206] Brownell v. Fidelity Union Trust Co., 119 F. Supp. 755, 757 (D.N.J. 1954).
[207] See supra IV.A and B.
[208] Price, 69 F.3d at 52.
[209] Id. at 52.
[210] Id. at 52-53.
[211] Holocaust Victims Redress Act, § 103, 112 Stat. 15 (1998).
[212] Id. § 202.
[213] Orkin v. Taylor, 487 F.3d 734, 739-40 (9th Cir. 2007), cert. denied, 128 S.Ct. 491 (2007).
[214] Id. at 735-36.
[215] Id.
[216] Id. at 741.
[217] U.S. v. Aleskerova, 300 F.3d 286 (2d Cir. 2002).
[218] Susan B. Bruning, New York Legal Decision Provides Protection to Experts For Art Authentication Opinions, 6 Media & Arts L. Rev. 53, 57 (2002); U.S. Custom Service, U.S. Customs Service Returns Renaissance Drawings Valued at $15 million to Germany, July 19, 2001, available at http://www.cbp.gov/hot-new/pressrel/2001/0719-01.htm.
[219] U.S. v. One Tintoretto painting, 691 F.2d 603 (2d Cir. 1982).
[220] U.S. Custom Service, supra note 218.
[221] See 22 U.S.C.A. § 2459 (1978).
[222] Id. at (a).
[223] Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983).
[224] Id. at 486-87.
[225] Akinsha, supra note 45, at 254.
[226] Id. at 255.
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