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26 Art Antiquity & L. 169 (2021)
Guelph Treasure Case Remanded by US Supreme Court

handle is hein.journals/artniqul26 and id is 178 raw text is: GUELPH TREASURE CASE REMANDED BY
US SUPREME COURT
Stephanie Drawdy*
Since heirs of German Jewish art dealers who owned the Welfenschatz (or 'Guelph
Treasure') prior to World War II began efforts over a dozen years ago to seek its return,
they have traversed many hurdles. Initially, the heirs received adverse responses from
both the German governmental body that maintains the Welfenschatz, the Stiftung
Preussischer Kulturbesitz ('SPK'), and the German Advisory Commission for the Return
of Cultural Property Seized as a Result of Nazi Persecution, Especially from Jewish
Possession. In March 2014, the Commission ruled that the Nazi State of Prussia entered
into a fair transaction for a fair price with the dealers.' This remarkable presumption of
fairness between the Third Reich and Jews in 1935 Germany - two years into Chancellor
Hitler's anti-Semitic reign - triggered the heirs to then file suit in the United States.2 The
heirs were making (slow) strides in US courts and now have received a mixed result in
America's highest court.
The opinion issued by the US Supreme Court turns on the text, context and history
of the 'expropriation exception' of the Foreign Sovereign Immunities Act ('FSIA').
While many learned individuals have disagreed in this case about the interpretation
of the exception (and the very history of the Holocaust), the much-anticipated ruling
from the Supreme Court in February 2021 came down strongly with those who sought
to strengthen immunity for foreign States and to narrow application of the exception.
In a sixteen-page opinion, the Court noted the expropriation exception was enacted to
lift the baseline presumption of immunity from suit given to foreign States under
the FSIA and applied only in certain instances when property was taken in violation
of international law.3 The Court then rendered precedent on which international law
would trigger this exception - violations of the international law of expropriation that
thereby incorporates the domestic takings rule.4
Chief Justice John Roberts, delivering the opinion on behalf of the Court, declined
to adopt the heirs' argument that the sale was an act of genocide that violated the
international law of genocide and gave rise to application of the exception; and the
international law of expropriation's domestic takings rule, which assumes that what
a country does to property belonging to its own citizens within its own borders is not
the subject of international law, was inapplicable.5 The Court opined that to accept
1     20 March 2014 Recommendation of the Advisory Commission for the return ofNazi-confiscated
cultural artefacts ('Recommendation') at 2-3; FederalRepublic ofGermany, et al. v Philipp, et
al., Index No. 19-351, 592 U.S. __ (2021), Opinion of the Court ('Opinion') at 2-3.
2     Opinion at 3.
3     Opinion at 1, 4 (quoting 28 U.S.C. Section 1605(a)(3)).
4     Opinion at 15.
5     Opinion at 3-16; Federal Republic of Germany, et al. v Philipp, et al., Index No. 19-351, Brief
for Respondents at 26-28.
*     Artist and attorney who practises in New York and South Carolina.

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