Stolen Art and Sovereign Immunity: The Case of Altmann v. Austria

31 Pages Posted: 1 Mar 2012

See all articles by Michael D. Murray

Michael D. Murray

University of Kentucky, J. David Rosenberg College of Law

Date Written: 2004

Abstract

The restrictive theory of sovereign immunity has been practiced by a number of sovereign nations since the early part of the twentieth century, but there is disagreement as to when the United States first officially announced its adherence to this doctrine. Many courts and scholars have traced the official adoption to 1952, in what has come to be called the Tate Letter. In fact, there is a fundamental misconception in some United States courts that the Tate Letter effected a complete turnabout from a system of absolute sovereign immunity to one of restrictive sovereign immunity. This reading of the history of foreign sovereign immunity in the United States simply is incorrect.

Part I of this article will briefly recount the principal facts of Altmann v. Republic of Austria. Parts II through IV will then address the principal arguments that Austria has raised against the application of the Foreign Sovereign Immunities Act, namely: 1. That the FSIA would have an impermissible retroactive effect if it were to be applied to Altmann’s claims arising from operative facts that occurred before both the effective date of the FSIA and the 1952 Tate Letter; 2. That the conduct of the Nazi regime and its agencies and instrumentalities in World War II, including Austria, in no way would have defeated the expectations of these state parties that they would receive immunity from prosecution in foreign courts; 3. That application of the FSIA in Altmann will open the door to subjective, inconsistent, and unpredictable applications of the FSIA in future cases.

Keywords: Art, Stolen Art, Nazi Stolen Art, Sovereign Immunity, Altmann, Austria, Klimmt, Portrait Of Adele Bloch Bauer

JEL Classification: K10

Suggested Citation

Murray, Michael D., Stolen Art and Sovereign Immunity: The Case of Altmann v. Austria (2004). Columbia Journal of Law & the Arts, Vol. 27, p. 301, 2004, Available at SSRN: https://ssrn.com/abstract=2013472

Michael D. Murray (Contact Author)

University of Kentucky, J. David Rosenberg College of Law ( email )

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