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Artistic Justice: How the Executive Branch Can Facilitate Nazi-Looted Art Restitution

Posted by on Wednesday, March 25, 2020 in Notes, Volume 73, Number 2.

Paige Tenkhoff | 73 Vand. L. Rev. 569 (2020) |

Eight decades after the Holocaust, many pieces of art stolen from Jewish families still sit in the state-owned museums of former Nazialigned regimes. In an effort to right old wrongs, plaintiffs are bringing suit in the United States against the foreign governments who retain the art under the Foreign Sovereign Immunity Act’s expropriation exception, which permits aggrieved plaintiffs to sue foreign countries for property that was illegally taken in violation of international law. But circuit courts are split as to whether these suits against foreign sovereigns should be allowed to go forward. This Note analyzes the divergent interpretations of the expropriation exception. Namely, whether the commercial activity of a foreign sovereign’s agencies and instrumentalities (in this case, a museum displaying stolen art) is enough to confer jurisdiction on the foreign sovereign itself. This Note argues that the executive should act to create a series of executive agreements that encourage arbitration or compensation through an established trust for Nazi-looted art claims. These agreements could reduce the foreign policy blunders of U.S. federal court litigation while giving survivors a real opportunity for restitution.

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Paige Tenkhoff