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The Supreme Court Defines Its Jurisdiction in WWII Art Case

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The Supreme Court has the authority to choose the cases it hears. Normally, out of more than 7,000 petitions for a writ of certiorari, about 100-150 are given.

Start a legal studies degree at American Military University.

Those cases that are chosen by the Supreme Court examine significant legal questions that were not previously addressed or were decided in different ways by circuit courts. Some cases also involve fascinating facts and historical twists.

The case of Federal Republic of Germany vs. Philipp (No. 19-351) is one particularly interesting example. The Supreme Court handed down its decision on this case on February 3 in favor of Germany.

The Background of Federal Republic of Germany Versus Philipp

The Federal Republic of Germany vs. Philipp case involves not only important legal questions, but is also a story worthy of a movie. The case concerns the Guelph Treasure (also known as the Welfenschatz), a collection of medieval religious art estimated to be worth $250 million. Before the Second World War, this magnificent collection was owned by a consortium of Jewish art dealers who sold some of it to collectors and museums, including the Cleveland Museum of Art.

After the Nazis took control of Germany, the remainder of the collection was brought to the attention of Hermann Göring. Göring, who commanded the German air force (Luftwaffe) and was one of Adolf Hitler’s inner circle, wanted the collection. In the lawsuit brought by the heirs of the original owners, the plaintiffs claimed that Göring coerced the owners with threats of violence, and the original owners had to sell the artifacts in 1935 for a fraction of what they were really worth.

The artwork is now in the Museum of Decorative Arts in Berlin. The heirs sued in U.S. district courts and demanded the return of their artifacts.

The German government, however, denied that the artwork was taken by coercion. A German commission of inquiry stated that the transaction was voluntary, the negotiations spanned a year and the price was in the middle point between the parties to the transaction.

The Jurisdiction Question Facing the Supreme Court

The main argument before the Supreme Court focused on a jurisdiction question: Can a U.S. court intervene in the taking of property of citizens of a foreign country by their own government? This question touches the core of political theory and international law.

One of the foundations of international law is the concept of sovereign immunity. Domestic tribunals do not judge actions taken by a foreign government when these actions were taken as part of its authority as the sovereign power.

In the U.S., this principle is exemplified by The Foreign Sovereign Immunities Act, which provides that foreign nations are presumptively immune from the jurisdiction of United States courts. An exception to this important principle can be found in 28 U.S.C. §1605(a)(3): “in which rights in property taken in violation of international law are in issue.”

The court opinion, written by Chief Justice Roberts, investigated this exception and its relevance to the issue at hand. The lower court agreed with the plaintiffs that this exception is relevant to Federal Republic of Germany vs. Philipp, since the genocide perpetuated by Nazi Germany against its own citizens excludes it from the boundaries of sovereign immunity. 

Germany’s position was that international law governs the relationships of states, not individuals and states. Consequently, the taking of property by an alien government would fall under the exception of “taking contrary to international law” but not domestic taking.

Chief Justice Roberts agreed with this interpretation of the statute. In his opinion, Roberts stated: “These restrictions would be of little consequence if human rights abuses could be packaged as violations of property rights and thereby brought within the expropriation exception to sovereign immunity. And there is no reason to suppose Congress thought acts of genocide or other human rights violations to be especially deserving of redress only when accompanied by infringement of property rights. We have previously rejected efforts to insert modern human rights law into FSIA exceptions ill-suited to the task.”

The Chief Justice made clear that issues of policy are at the heart of this discussion, namely if whether or not American courts should “rule the world,” so to speak. Adjudicating in situations that do not involve American citizens will involve the Supreme Court in foreign relations.

But the Constitution makes it clear that foreign relations are under the authority of the President. The Court noted: “We interpret the FSIA as we do other statutes affecting international relations: to avoid, where possible, ‘producing friction in our relations with [other] nations and leading some to reciprocate by granting their courts permission to embroil the United States in expensive and difficult litigation.’”

American Courts Do Not Have Universal Jurisdiction

The Chief Justice did not hide his position on the issue of having the Supreme Court involved in foreign relations. He clearly explained that adjudicating this issue will lead the way for foreign tribunal adjudication in lawsuits brought by American citizens against the U.S. government for actions carried out in the past: “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.”

This position by Roberts makes no qualms of moral judgment; it is a position that is completely utilitarian. The logic is not flawed; an approach of universal jurisdiction will likely turn into a political weapon using the guise of human rights to achieve political victories.

We should remember that at the core of the political theory that gives sovereign states immunity is the true and tested notion that wars among nations will be less likely if internal affairs are left in the hand of local governments. That way, sovereignty will be protected and will be more likely to ensure peace.

While judges make difficult decisions and we expect them to do so, they also know how to offer options that exclude cases from rules for the sake of justice. In this case, Chief Justice Roberts concluded his opinion by saying that the lower court should consider the heirs’ contention “that the sale of the Welfenschatz is not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction.”

This short statement charts an interesting and alternative course of action. The legal argument that could be used in a future lawsuit by the heirs is that the Nazi appropriation of Jewish property was not an act of domestic taking, since Jews were not German citizens at the time. When Adolf Hitler took control of Germany, one of his first actions was to begin a legislative process that would consolidate his political power and strip Jews from the normal rights and privileges given to Germans.

One noteworthy highlight of this process was the Reichsbürgergesetz legislation (Law of the Reich Citizen). This law stated that Jews were not citizens of the Reich, but subjects of it. This important distinction gives rise to the heirs’ legal argument that the stolen art was not an internal taking of property but in fact an action by a government against alien residents, once compatriots, who were turned foreigners and stateless overnight. 

This case is not over. The lower courts could still accept the position of the heirs that U.S. courts have jurisdiction over this case, based on the Chief Justice’s remark concerning the unique case of Nazi Germany, which turned Jews from citizens to subjects overnight.

The lower courts could establish jurisdiction over this case based on this argument and adjudicate the facts (as done before by the district court) concerning the coercion of the sale. This decision by the Supreme Court does not only give insight into a fascinating historical episode, but touches on some of the core issues of jurisprudence and political theory.

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B. in Law, an LL.M. in Law and a Ph.D. in Law from Bar-Ilan University. He has published a book, “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 17 articles in leading scholarly journals. At AMU, he teaches courses on international law while maintaining a law practice in several jurisdictions.

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