Ninth Circuit Rules that Spanish Foundation Can Keep Nazi-Looted Art

I recently came across Elena Baylis’s summary of the Ninth Circuit’s decision from January 2024 in Cassirer v. Thyssen-Bornemisza Collection Foundation in International Legal Materials.  As Professor Baylis notes, the case turns on a choice of forum analysis, but there is a concurring opinion suggesting that Spain had a soft-law obligation to return the painting at issue in the case.

The case is about Camille Pissarro’s Rue Saint Honoré, après midi, effet de pluie (below left), which the Nazis stole from Lilly Neubauer as she attempted to flee Germany in 1939. After changing hands a few times, the painting was purchased by the Thyssen-Bornemisza Collection (TBC) from the Baron Hans Heinrich Thyssen-Bornemisza in 1993. TBC has publicly displayed the Painting at the Museo Nacional Thyssen-Bornemisza in Madrid, Spain. The painting is now valued at $30 million.

In 2000, Claude Cassirer, Lilly’s sole remaining heir, learned that the painting was on display, and in 2001, he petitioned Spain for its return. When Spain refused, he sued in federal court, citing exceptions to foreign sovereign immunity under the Foreign Sovereign Immunity Act.  

Nearly two decades later, the Ninth Circuit determined that, under California choice-of-law rules, a court should determine ownership of the painting using Spanish law. It then affirmed the finding of the District Court, applying Spanish law and awarding of judgment in favor of TBC.

Judge Callahan made the following statement in his concurrence:

Spain, having reaffirmed its commitment to the Washington Principles on Nazi-Confiscated Art when it signed the Terezin Declaration on Holocaust Era Assets and Related Issues, should have voluntarily relinquished the Painting. However, as we previously held, “we cannot order compliance with the Washington Principles or the Terezin Declaration.” Our opinion is compelled by the district court’s findings of fact and the applicable law, but I wish that it were otherwise.

One might wonder, if Spain has taken on certain international obligations, why a court is powerless to order compliance with those obligations. The answer, as is common in the realm of soft law, turns on the nature of the obligations their specificity and the extent to which states parties commit to the implementation of the instrument’s normative obligations. 

As Professor Baylis makes clear, in the case of the Terezin Declaration, which reaffirms the Washington Conference Principles on Nazi-Confiscated Art, the commitment clearly is non-binding. One would hope that in a situation like this, what Tom Franck called “compliance pull” would induce Spain towards a settlement. I suspect that Mr. Cassirer doesn’t want a painting that he could not afford to insure, and the painting is public art that ought to be displayed rather than held in some private collection. Spain could offer a few million dollars in exchange for the right to display the painting for the next twenty years, at which point the parties can negotiate a renewal or agree to some more permanent solution.