Art, Law, and Memory: The complexities of international restitution in the Cassirer Case

Written by Jomart Joldoshev, LL.M. as part of the International Courts Reporter series

Image source: Museo Nacional Thyssen-Bornemisza, Madrid

The legal battle over Camille Pissarro’s painting, Rue Saint-Honoré in the Afternoon. Effect of Rain is symbolic of the complex issues surrounding the restitution of Nazi-looted art. The painting was forcibly sold under duress by Lilly Cassirer, a Jewish woman, to the Nazis in 1939. Decades later, it resurfaced in the Thyssen-Bornemisza Collection in Spain, sparking a protracted legal struggle that raises significant questions about the intersection of international law, property rights, and ethical considerations in cultural restitution.

In 2005, the Cassirer family initiated legal proceedings in the United States, seeking the return of the Pissarro painting. A central issue in the case was whether U.S. courts had jurisdiction, given that the Thyssen-Bornemisza Collection Foundation is a Spanish state-owned entity. The legal proceedings hinged on applying the Foreign Sovereign Immunities Act (FSIA), which generally protects foreign states and their agencies from being sued in U.S. courts. However, the FSIA includes an exception for cases involving “rights in property taken in violation of international law.” The U.S. District Court for the Central District of California ruled that the FSIA’s exception applied in this case, allowing the lawsuit to proceed. The court found that the painting’s confiscation by the Nazis constituted a violation of international law, thus fitting within the FSIA’s exception. This decision was pivotal because it allowed U.S. courts to assert jurisdiction over the case despite the sovereign immunity typically granted to foreign states. However, this ruling highlighted the tension between respecting sovereign immunity and providing a legal forum for restitution claims based on historical injustices.

A critical development in the Cassirer case came in 2022 when the U.S. Supreme Court upheld a decision that Spanish law, rather than U.S. law, should govern the dispute. The Supreme Court’s decision was rooted in the lex situs principle, which applies the law of where the property is located. Since the painting was in Spain, Spanish law was deemed applicable. Under Spanish law, the principle of good faith acquisition plays a central role in determining ownership. This principle allows a purchaser who acquires an item in good faith, without knowing its stolen status, to retain legal title. This contrasts sharply with California law, where original owners’ rights to stolen property are generally upheld, regardless of subsequent transactions. Therefore, applying Spanish law posed a significant legal challenge for the Cassirer family. Although the painting’s Nazi-era provenance was undisputed, the legal avenues available to the family were limited by the choice of law.

The application of Spanish law in the Cassirer case underscores the challenges of navigating different legal systems in the context of international restitution claims. Spanish law’s emphasis on good faith acquisition can lead to outcomes that protect current possessors, even when the historical context, such as Nazi looting, would suggest a moral imperative to return the property to its original owners. This divergence between legal systems illustrates the difficulties in achieving consistent and equitable outcomes in international restitution cases. While U.S. law might have favored the Cassirer family’s claim, the application of Spanish law effectively curtailed their ability to recover the painting. This outcome highlights a broader issue in international law: the lack of a harmonized legal framework for addressing the restitution of cultural property taken during conflict and persecution.

International conventions, such as the 1970 UNESCO Convention and the Washington Principles on Nazi-Confiscated Art, aim to provide guidelines for the restitution of cultural property. However, these conventions are often non-binding and rely on the voluntary cooperation of states. In the Cassirer case, these international frameworks provided moral guidance but did not have the legal force to influence the court’s decision. The limitations of these conventions underscore the need for more robust international legal mechanisms to effectively address the restitution of looted cultural property.

In the United States, legislative efforts such as California’s Assembly Bill 2867, authored by Assemblymember Jesse Gabriel and sponsored by Lt. Gov. Eleni Kounalakis, seek to address some of these challenges. The bill aims to extend the statute of limitations for claims related to Nazi-looted art, allowing more time for descendants of Holocaust victims to pursue legal action. If this bill had been in effect during the early stages of the Cassirer case, it could have reinforced the application of California law and potentially provided a more favorable legal environment for the Cassirer family. This bill reflects a growing recognition of the need to adapt legal frameworks to address the complexities of historical restitution claims.

The Cassirer case highlights the intricate challenges of seeking restitution for Nazi-looted art within the existing international legal framework. The divergence between U.S. and Spanish legal principles, particularly regarding good faith acquisition, illustrates how jurisdictional decisions can significantly impact the outcome of such claims. The reliance on national laws, rather than a unified international standard, complicates efforts to achieve justice in cases involving looted cultural property. As the legal landscape continues to evolve, efforts like California’s Assembly Bill 2867 may provide new avenues for restitution. However, the Cassirer case underscores the ongoing need for more consistent and harmonized international legal standards to ensure justice for the victims of historical wrongs, regardless of where the legal battle occurs.