The Chapman Law Review is proud to publish Nicholas M. O’Donnell’s article: Turnabout Is Foul Play: Sovereign Immunity and Cultural Property Claims. Below, you will find the abstract from the article.

Turnabout Is Foul Play: Sovereign Immunity and Cultural Property Claims

By Nicholas M. O’Donnell

Abstract

In 1976, Congress enacted the Foreign Sovereign Immunities Act, 28 U.S.C. § 1601, et seq., to establish the circumstances under which foreign states and their instrumentalities are subject to suit in United States courts. Under the FSIA, a foreign state is immune from suit unless an enumerated exception applies. Of these exceptions, the “expropriation exception” of section 1605(a)(3) was invoked for various claims to looted or dispossessed cultural property. Most frequent of all were claims arising out of Nazi-era transfers and thefts, a dispossession of art in particular that Congress (unanimously) in 2016 labeled the “greatest displacement of art in human history.” Claims were evaluated without regard to the nationality of the Nazis’ victims, consistent with a 2016 amendment to the FSIA that confirmed its applicability to “Nazi-era claims” defined as those dating from January 30, 1933 to May 8, 1945, as well as with the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

In 2021 the Supreme Court abruptly changed course. The expropriation exception, the Court held, incorporates the so-called “domestic takings rule,” under which international law is indifferent to crimes by a government against its own nationals. By inserting this additional element into the expropriation exception at odds with the Genocide Convention and § 1605(h), the Court sent a clear message of hostility to cultural property claims that sovereign litigants and the lower courts have followed. What has ensued is a demeaning race to the bottom in which heirs of the Nazis’ victims are forced to explain why international law should protect those whom Germany cast out of the protection of its laws.

Ironically, the Court’s increasing reliance on an unrelated law that addressed the Act of State Doctrine provides the solution. After the Supreme Court declared Cuba’s expropriations non-justiciable under the Act of State Doctrine, Congress asserted its co-equal power to restore access to U.S. Courts with the Second Hickenlooper Amendment. Without irony, the Supreme Court has increasingly cited the Second Hickenlooper Amendment to interpret the FSIA more narrowly. Congress must take the cue, and act to remind the Court that Congress meant what it said, not the policy that the Court has inserted into the law.