Theft by Governments

Generally, one cannot sue a foreign government in American courts. The Foreign Sovereign Immunities Act establishes the basic rule, subject only to specified exceptions.

In Federal Republic of Germany v. Philipp, No. 19-351, the Supreme Court addressed a sale of art allegedly coerced by the government of Nazi Germany in 1935 for only one-third of its value. Can the heirs of the sellers sue the present German government in U.S. courts to get it back?

No, said a unanimous Supreme Court today. The exception for “property taken in violation of international law” does not apply to governments taking the property of their own citizens. That is a domestic matter.

It is worth noting here that the German government does have a process for investigating and remedying Nazi theft of cultural property. The heirs invoked that process, and the commission decided that, contrary to their claims, the sale was not coerced, and the sellers were paid fair value.

The Court rejected a claim that taking art is an act of genocide and therefore qualifies for the exception. No, of course it isn’t. To be sure, the same government accused of theft in this case also committed genocide on a mass scale, but that does not convert every despicable action of that government into an act of genocide.

This harkens back to what Chief Justice Roberts, the author of the opinion, said at the time of his confirmation. A court should decide according to the law, not the identity of the parties. Our repugnance for the Nazi regime of 86 years ago should not decide a property dispute in the present day.

Twenty-first century Germany is a democracy with due process of law and respect for human rights. It has an internal process for adjudicating disputes of this type. That process was invoked in this case and rendered a decision. We need to respect the integrity of other democracies if we are to expect them to respect ours. From the opinion today:

As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.