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INTERNATIONAL LAW - Expropriation Exception Allows Jewish Family to Bring Action to Recover Ari Stolen During the Holocaust - De Csepel v. Republic of Hung.

INTERNATIONAL LAW--Expropriation Exception Allows Jewish Family to Bring Action to Recover Ari Stolen During the Holocaust--De Csepel v. Republic of Hung., 859 F.3d 1094 (D.C. Cir. 2017).

The Foreign Sovereign Immunities Act (FSIA) protects a foreign state from the jurisdiction of the state and federal courts of the United States; however, some exceptions do exist. (1) The FSIA expropriation exception provides that a foreign state will not be immune from jurisdiction where a plaintiffs "rights in property were taken in violation of international law are in issue" and a commercial relationship exists between the United States and the foreign state. (2) In De Csepel v. Republic of Hung., (3) the Court considered whether the defendant's actions fit within the requirements of the FSIA expropriation exception. (4) The Court held that the family's claims satisfied the expropriation exception because the art stolen from the family during the Holocaust violated international law and that a commercial relationship between the United States and the foreign state defendant exists. (5)

Prior to World War II, Baron Mor Lipot Herzog, a "passionate Jewish art collector," amassed an art collection (Collection) that included over two thousand sculptures, various artworks, and, most notably, many paintings. (6) Later, when World War II consumed Europe, Hungary became a member of the Axis Powers. (7) As a result, Jewish Hungarians were subject to a variety of anti-Jewish laws; particularly, one such law required Jewish people to turn over all of their "art objects," which were then seized by the Hungarian government. (8) As anti Jewish sentiment progressed in Hungary, the Herzog family art collection eventually fell into the hands of the Hungarian government. (9) After the war, the Herzog family began a seventy-year long fight to reclaim their art collection; their efforts proved unsuccessful for many years. (10)

Later, the Herzog family brought an action against the Republic of Hungary, several Hungarian art museums, and a Hungarian university in a United States District Court. (11) The Herzog family alleged that the seizure of the Collection constituted a breach of a bailment, the Court went on to reason that the Herzog family's claim fell within the FSIA expropriation exception and that jurisdiction over the foreign state exists. (12) The defendants appealed the decision, arguing that because of an international treaty between the United States and Hungary, the expropriation exception does not apply. (13) After considering the arguments from both parties, the Court struck down the defendants treaty exception argument and held the Herzog family satisfied the expropriation exception requirements because Hungary's seizure of the Collection during the Holocaust violated international law. (14)

The Foreign Sovereign Immunities Act of 1976 upended the historical view, in the United States, that foreign governments enjoy immunity from the jurisdiction of federal and state courts. (15) Once the FSIA was established, it provided United States citizens with the opportunity to subject a foreign government to the jurisdiction of the United States courts. (16) Importantly, the FSIA defined a foreign state to include political subdivisions or "an agency or instrumentality" of the foreign state. (17) Moreover, the FSIA established certain requirements that must be met to successfully bring an action against a foreign state; one such example is the expropriation exception. (18)

The expropriation exception of the FSIA dictates that jurisdiction over a foreign state can be established if a claimant satisfies the following requirements: (1) the foreign state took "rights in property" in violation of international law and (2) that a commercial nexus between the United States and the foreign state exists. (19) For example, the "rights in property" requirement can be met if the claimant's property was subject to "war-time taking." (20) Moreover, litigation involving "war-time taking" of art in World War II has seen an increase in American courts, thereby providing victims justice. (21) In regards to the commercial nexus requirement, it is met by the claimant showing that the foreign state "engaged in sufficient commercial activity in the United States." (22) However, any claim against a foreign state is subject to any existing international agreements or treaties that the United States was involved in with the foreign state at the time the FSIA was established. (23)

The treaty exception allows a foreign state to maintain its immunity if an international agreement between the United States and a foreign state defendant creates an express conflict with the FSIA. (24) The treaty or internacional agreement being cited as a defense must be an enforceable agreement passed into law. (25) When asserting such a defense, the foreign state bears the burden of proof. (26) As a result, when FSIA provisions and an international agreement dispute each other, foreign state immunity is retained and the international agreement prevails so as to avoid invalidating an existing treaty between the foreign state and the United States. (27)

In De Csepel v. Republic of Hung. (28), the Court had to analyze and resolve a number of issues relating to the FSIA's expropriation exception. (29) The Court concluded that the two requirements of the expropriation exception were met and that there was no conflicting international agreement between the United States and the defendants. (30) The Court reasoned the first requirement of the expropriation exception was met because the property at issue in the case was seized in pursuit of genocide, and therefore violated international law. (31) The second requirement that a commercial nexus exists between the defendants and the United States was met because the issue was undisputed at trial and resolved in the cases' earlier appellate history. (32)

The Court then considered the government of Hungary's defense, which argued Hungary retained immunity because The 1947 Treaty of Peace (1947 Peace Treaty) between the United States and Hungary conflicted with the plaintiffs' claims. (33) Hungary stated that the 1947 Peace Treaty already provided Holocaust victims with means to gain restitution; the Court struck down this assertion and reasoned that while the treaty does provide victims a way to seek recovery, the treaty is not the only way to do so. (34) The Court concluded that the Herzog family satisfied the two requirements of the FSIA expropriation exception and that there was no conflicting international agreement to preclude their claim to recover the art taken from them during the Holocaust. (35)

In De Csepel v. Republic of Hung. (36) the Court correctly resolved the FSIA issues before it. (37) In the Court's consideration of the Herzog family's expropriation exception, its reasoning properly determined that Hungary's seizure of the Collection in pursuit of the destruction of the Jewish people satisfied the first requirement of the expropriation exception. (38) Here, the "rights in property" requirement was met because the Court equated the Hungarian governments' seizure of Jewish property to genocide, which is a clear and abhorrent violation of international law. (39) Although the commercial nexus requirement was previously resolved and undisputed at trial, the three Hungarian museums and the university fit well within the FSIA definition of an instrumentality of a foreign state and each of the instrumentalities were engaged in commercial activity with the United States. (40)

When the Republic of Hungary asserted that the 1947 Peace Treaty with the United States precluded the Herzog family's claim, the Court properly rejected it. (41) Specifically, Hungary focused on a provision in the treaty that gave Holocaust victims a means of recourse. (42) After evaluating the language in the treaty, the Court concluded that while the treaty did provide victims with a way to obtain legal compensation, the treaty did not contain any "language of exclusivity," which would establish the treaty as the one and only possible way for recovery. (43) As a result, because the Herzog family's FSIA expropriation claim did not conflict in a such a way as to undermine the pervious international agreement between the United States and Hungary, their claim properly survived Hungary's treaty exception defense. (44)

Importantly, however, the Courts' determination that the Herzog family satisfied the FSIA requirements to allow their claim to recover their stolen art represents a new chapter in the rising litigation of Holocaust victims seeking to recover their stolen art. (45) Although, while the Herzog's claims were allowed to move forward, many victims in similar situations remain without justice. (46) The Holocaust was an attempt to destroy the Jewish culture, the Jewish religion, and the Jewish people; rectifying the wrongs of the Holocaust, specifically returning the stolen art, must be done to nurture the wounds caused by "one of humanity's darkest hours." (47) In addition, much like how the Court here relied on the reasonings and holdings of previous cases like Simon v. Republic of Hung., (48) courts in the future will rely on De Csepel as an example of the atrocities Holocaust victims suffered and how justice should be afforded. (49)

In De Csepel v. Republic of Hung., (50) the United States Court of Appeals for the District of Columbia had to determine whether the requirements of the Herzog family's FSIA expropriation claim were satisfied. In addition, the Court also had to determine whether Hungary's treaty defense precluded the family's claims. The Court, relying on precedent from a similar case, correctly concluded that the two requirements of the FSIA expropriation exception, rights in property were taken in violation of international law and a commercial nexus between the United States and the foreign state exists, were met and that the 1947 Peace Treaty presented by Hungary did not conflict with the FSIA claim.

(1.) See Foreign Sovereign Immunities Act of 1976, 28 U.S.C. [section] 1604 (1976) (providing jurisdictional immunity from United States federal and state courts to foreign states). Generally, the Foreign Sovereign Immunities Act (FSIA) establishes "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." Id. Immunity to a foreign state also depends on whether there are "existing international agreements to which the United States is a party at the time of enactment of this Act [enacted Oct. 21, 1976]." Id. Moreover, the FSIA is not without exceptions to the general rule of sovereign immunity. Id. See also 28 U.S.C. [section] 1605 (2016) (listing some exceptions to foreign state immunity). For example, a foreign state will be subject to the jurisdiction of the United States federal or state courts if the foreign state "has waived its immunity either explicitly or by implication." Id. at [section] 1605(a)(1). See also Belize Soc. Dev., Ltd. v. Gov't of Belize, 794 F.3d 99, 102 (D.C. Cir. 2015) (noting foreign state has burden of proof when asserting immunity). This case arose from a contractual dispute brought on by a change in the government of Belize. Id. at 100-02. The government of Belize asserted its foreign immunity as a defense to honoring the contractual obligations. Id. at 102. Belize then bore the burden of proof; the court noted "[w]here a plaintiff has asserted jurisdiction under the FSIA and the defendant foreign state has asserted 'the jurisdictional defense of immunity,' the defendant state 'bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity.'" Id. (quoting Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).

(2.) See 28 U.S.C. S 1605 (stating FSIA expropriation exception). Among the other exceptions that exist in the FSIA, the expropriation exception states that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case--(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States....

Id. at [section] 1605(a)(3). See also 28 U.S.C. 8 1603 (2005) (defining commercial activity, foreign state, and instrumentalities within FSIA). A foreign state within the meaning of the FSIA "includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b)." Id. at 8 1603(a). "An 'agency or instrumentality of a foreign state'" within the meaning of the FSIA is considered to be "a separate legal person, corporate or otherwise ... which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof" and the agency or instrumentality is not a citizen of the United States or "created under the laws of any third country." Id. at 8 1603(a)-(b)(3). Commercial activity within the meaning of the FSIA is defined as "either a regular course of commercial conduct or a particular commercial transaction or act." Id. at 8 1603(d). Specifically, the FSIA provides that '"commercial activity carried on in the United States by a foreign state' means commercial activity carried on by such state and having substantial contact with the United States." Id. at 8 1603(e). The commercial activity section of the FSIA goes on to explain "[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." Id. at 8 1603(d). See also Agudas Chasidei Chabad v. Russian Fed'n, 528 F.3d 934, 940 (D.C. Cir. 2008) (summarizing court analysis of expropriation exception). The plaintiff in this case was part of a Jewish religious organization that originated in Russia in the 18th century. Id. at 938. The facts of this case orient around the Soviet Union's seizure of a portion of the plaintiff's religious books, manuscripts, and documents in 1917. Id. In an attempt to reclaim what was taken from them, the plaintiffs filed suit and asserted jurisdiction over the Russian government by claiming the FSIA expropriation exception applied. Id. at 939. The court notes that when determining whether a claim can go forward under the expropriation exception, the analysis can be broken down into whether (1) property was taken from the plaintiff "in violation of international law" and (2) the existence of a commercial relationship "between the United States and the defendants." Id. at 940. The burden of proof is on the plaintiff to show that the requirements of the expropriation exception are met. Id. at 939.

(3.) 859 F.3d 1094 (D.C. Cir. 2017) (analyzing plaintiff's FSIA expropriation claim).

(4.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1095 (D.C. Cir. 2017) (determining whether expropriation exception is satisfied). The plaintiffs in the case seek recovery of their art collection that was taken during the Holocaust and assert jurisdiction over the defendants through the expropriation exception of the FSIA. Id. at 1098, 1100. The expropriation exception will be satisfied when the requirements of (1) the property at issue was "taken in violation of international law" and (2) a commercial relationship "between the United States and the defendants" exists. Id. at 1101. See also Agudas Casidei Chabad, 528 F.3d at 942-49 (providing example for expropriation exception analysis). In examining the plaintiff's claims under the expropriation exception, the court had to analyze the required elements which include "rights in property at issue," the property was "taken in violation of international law," and the "commercial activity nexus." Id. at 942. The "rights in property" element will be met if the plaintiff actually had an interest in the property involved at trial. Id. In regards to the "taken in violation of international law" element, the defendants "did not challenge the district court's holding" that "the taking in 1917-1925 and the taking (or retaking) in 1991-1992" violated international law. Id. at 943. Rather, the Russian government challenged the second element by asserting that the plaintiffs, at the time, were citizens of the Soviet Union and therefore, no international violation could have occurred. Id. Lastly, the commercial activity element was satisfied by the defendant's sales transactions and numerous contracts with American corporations that were described within the contracts themselves as "commercial in nature." Id. at 948. The defendant's commercial activities fit within the definitions set forth in the FSIA. Id. at 946-947.

(5.) See De Csepel, 859 F.3d at 1110 (finding plaintiff's claim satisfied expropriation exception). "[T]he Herzog family's claims to art never returned to them satisfy the FSIA's expropriation exception." Id. The Court states that the "rights in property taken in violation of international law" element was met because "Hungary's seizures of Jewish property during the Holocaust constituted genocide and were therefore taking in violation of international law." Id. at 1101. The commercial activity requirement of the expropriation requirement contains a second clause, which is met when ""that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in commercial activity in the United States.'" Id. at 1104 (quoting 28 U.S.C. S 1605(a)(3)). The Court concluded and affirmed the holding of the district court, in a previous related case, that the second clause was met here. Id. See also De Csepel v. Republic of Hung., 169 F. Supp. 3d 143, 167 (D.C. Cir. 2016) (holding plaintiffs established commercial activity requirement). Here, the defendants did "not dispute the fact that the Hungarian museums are engaged in commercial activity in the United States." Id. But the defendants did assert that "museums are not 'agencies or instrumentalities]' of Hungary." Id. The court in this case found that museums fit within the definition as an "organ of a foreign state" set forth in the FSIA. Id. See also Simon v. Republic of Hung., 812 F.3d 127, 142-46 (D.C. Cir. 2016) (finding seizure of Jewish property during Holocaust violates international law). This case dealt with the seizure of Jewish property in order to propagate the Hungarian war effort, the goals of which included the extermination of the Jewish people. Id. at 143. Genocide is a violation of international law, as a result, because Jewish property was seized in pursuit of genocide, the seizure violated international law. Id.

(6.) See De Csepel, 859 F.3d at 1097 (reviewing Herzog family history). Baron Mor Lipot Herzog lived in Hungary and collected various forms of art in his lifetime. Id. The art collection Baron Mor Lipot Herzog assembled was "'one of Europe's great private collections of art, and the largest in Hungary.'" Id. (quoting de De Csepel v. Republic of Hung., 714 F.3d 591, 594-597 (D.C. Cir. 2013)). When Baron Mor Lipot Herzog passed away in 1934, as well as his wife, the Collection was inherited and divided among his daughter, Erzsebet, and his two sons, Istvan and Andras. Id. The Collection was comprised of paintings by famous artists such as "El Greco, Diego Velazquez, Pierre-Auguste Renoir, and Claude Monet." Id. See also About the Artworks, Hungary on Trial, http://hungarylootedart.com/?pageJd=32 (last visited Jan. 19, 2018) (describing notable paintings in Collection). Currently, over forty paintings of the Collection, including many significant paintings are being held by the Hungarian government. Id. For example, "The Agony in the Garden," painted by the artist El Greco in the early 17th century, is part of the Collection. Id. "The Agony in the Garden" depicts "Christ's spiritual struggle as he contemplates his imminent crucifixion while his followers sleep in the foreground." Id. Another notable painting in the Collection is a portrait of Saint Andrew. Id. The portrait of Saint Andrew was painted by Francisco de Zurbaran and depicts "Andrew the Galilean fisherman, Peter's brother and the first apostle called by Jesus." Id. Lastly, "The Annunciation to Joachim," painted by Lucas Cranach the Elder in 1518 "shows the rare subject of the shepherd Joachim in a landscape when the archangel Gabriel brings him news that his wife Anna will conceive a child (Mary) who will be the Mother of Jesus." Id. See generally Art Gallery, Hungary on Trial, http://hungarylootedart.com/?page_id=34 (last visited Jan. 19, 2018) (providing visual images of Collection). The online gallery shows images of the Collection. Id.

(7.) See De Csepel, 859 F.3d at 1097 (remarking on Hungarian alliance with Axis Powers). When World War II began, "Hungary joined the Axis Powers." Id. See also Axis Alliance in World War II, United States Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005177 (last visited Jan. 19. 2018) (listing members of Axis Powers). The three main powers within "the Axis alliance were Germany, Japan, and Italy." Id. In the early years of World War II, pressure on Hungary to join the Axis powers intensified. Id. Germany helped Hungary annex desired territory and was a vital future potential trade partner; as a result, "Hungary joined the Axis on November 20, 1940." Id. See generally Miklos Horthy, World War II Database, https://ww2db.com/person_bio.php'?person_id=189 (last visited Jan. 19, 2018) (providing biography of Hungarian leader in World War II). An image shows Miklos Horthy, leader of Hungary in World War II, and Adolf Hitler. Id.

(8.) See De Csepel, 859 F.3d at 1097 (describing German occupation of Hungary in World War II). In 1944, under the command of "SS Commander Adolf Eichmann," German troops entered and began to occupy Hungary. Id. During the German occupation, "Hungarian Jews were subjected to anti-Semitic laws" that stripped them of their ability to participate, economically and culturally, in Hungarian daily life. Id. Eventually, Hungarian Jews were "deported to German concentration camps." Id. Plundering Jewish property was "an integral part of [the] oppression of Hungarian Jews." Id. As a result, "'[t]he Hungarian government, including the Hungarian state police, authorized, fully supported and carried out a program of wholesale plunder of Jewish property...."' Id. at 1097-1098 (quoting De Csepel, 714 F.3d at 594). Anyone who had any sort of "'Jewish origin'" was completely stripped of their assets. Id. at 1098. By law, Jewish people were forced to "register all of their property" and other valuables with the Hungarian government. Id. The property registered was then inventoried and seized by the Hungarian government. Id. The Hungarian government was specifically focused on plundering Jewish art, the Court notes that in World War II they were "'[particularly concerned with the retention of artistic treasures belonging to Jews,' the Hungarian government established 'a so-called Commission for the Recording and Safeguarding of Impounded Art Objects of Jews ... and required Hungarian Jews promptly to register all art objects in their possession.'" Id. (quoting De Csepel, 714 F.3d at 1 56). The collection and seizure of the art collected from the Jewish people was "headed by the director of the Hungarian Museum of Fine Arts." Id. Moreover, the Collection was eventually seized by the Hungarian government, at which point the Collection was taken to SS Commander Adolf Eichmann's base of operation in Hungary, where selected pieces of the Collection were put on display. Id. The rest of the Collection was given to the Museum of Fine Arts of Hungary. Id. See also Axis Alliance in World War II, supra note 7 (noting timeline of German occupation). Germany occupied Hungary in March 1944, to force the country to remain in the war. Id. See also Holocaust Restitution: Recovering Stolen Art, Jewish Virtual Library, http://www.jewishvirtuallibrary.org/recovering-stolen-art-fromthe-holocaust (last updated Mar. 2017) (describing "Nazi Plunder"). In World War II, Nazi-Germany spearheaded a "campaign to loot and plunder art from Jews and others in the occupied countries." Id. By the end of World War II, Nazi-Germany looted and plundered "hundreds of thousands of pieces of artwork." Id. After the war, the Allies recovered some of the stolen art, yet many thousands of stolen items and art items remained lost. Id.

(9.) See De Csepel, 859 F.3d at 1098 (detailing Herzog family's escape from Nazioccupied Hungary). The Herzog family fled Hungary, lest "face extermination" at the hands of the Nazis. Id. Erzsebet fled to *he United States, where she became a citizen. Id. Istvan managed to escape being sent to a concentration camp and survived World War II. Id. Andras was sent to a "forced labor camp" and perished. Id. See also Family History, Hungary on Trial, http://hungarylootedart.com/?page_id= 30 (last visited Jan. 19, 2018) (describing Herzog family hardships). During the Nazi occupation, the family's companies were taken from them. Id. Finally, "[stripped of their art and property and fearing for their lives, the other members of the Herzog family were forced to flee Hungary or face extermination." Id.

(10.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1098 (D.C. Cir. 2017) (recalling Herzog family's effort to recover stolen art). The "family's seven-decade effort to reclaim" the Collection, which included cases in the Hungarian courts, were unsuccessful. Id. See also Lawsuit Background, Hungary on Trial, http://hungary lootedart.com/?page_id=8 (last visited Jan. 19, 2018) (describing attempted recovery of stolen Collection). When World War II ended, the Hungarian government was reluctant to return the Collection to the family. Id. This resistance to return the stolen art contradicts the actions of other countries involved in the Nazi plunder. Id. For example, upon discovery that a piece art was part of the Collection, Germany voluntarily returned the piece of art to the Herzog family in 2010. Id. See also Profile, German Lost Art Foundation, https://www.kulturgutverluste.de/Webs/EN/ Foundation/Profile/Index.html (last visited Jan. 19, 2018) (working to return art stolen by Nazis). The organization works to serve as a liaison between the German government and people seeking the return of stolen art. Id. "The Foundation is also responsible for investigating the war-related removal or relocation of cultural assets." Id.

(11.) See De Csepel, 859 F.3d at 1098 (detailing procedural history). The Herzog's brought action against the Republic of Hungary, the Hungarian National Gallery, the Museum of Applied Arts, the Budapest Museum of Fine Arts, and the Budapest University of Technology and Economics. Id. See also De Csepel v. Republic of Hung., 808 F. Supp. 2d 113, 120 (D.D.C. 2011) (detailing first case against Hungary). The Herzog family alleges the art stolen from them should be returned. Id. The defendants are "Museum of Fine Arts ..., the Hungarian National Gallery, [ ] the Museum of Applied Arts in Budapest ..., [and] the Budapest University of Technology and Economics...." Id. See also De Csepel v. Republic of Hung., 714 F.3d 591, 597 (D.C. Cir. 2013) (detailing second case against Hungary). 1'he defendants from the 2010 lawsuit appealed the denial of their motion to dismiss the first case brought on by the Herzog family. Id. See also De Csepel v. Republic of Hung., 169 F. Supp. 3d 143, 147 (D.C. Cir. 2016) (detailing subsequent appellate history of Herzog case). "Defendants the Republic of Hungary, the Hungarian National Gallery, the Museum of Fine Arts, the Museum of Applied Arts, and the Budapest University of Technology and Economics have moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss this case for want of subject matter jurisdiction." Id. See also Lawsuit Background, supra note 10 (remarking on first case against Hungary in United States court). The Herzog family filed suit on July 27, 2010 to recover their artwork from Hungary. Id.

(12.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1098-99 (D.C. Cir. 2017) (noting plaintiffs allegations). The plaintiffs allege that the artwork from the Collection that is currently in possession by Hungary is a bailment and that the refusal to return the artwork is a breach of contract. Id. Even though the plaintiffs are alleging a bailment was breached, the Court notes "that a complaint need not allege a straightforward claim" to establish the expropriation exception. Id. at 1102. Alleging a '"garden-variety common law claim,'" such as a violation of a bailment, was enough to consider the FSIA expropriation exception. Id. As a result, the Court moved forward with their FSIA expropriation exception analysis. Id. (quoting Simon v. Republic of Hung., 812 F.3d 127, 140-42 (D.C. Cir. 2016)). See also Simon v. Republic of Hung., 812 F.3d 127, 140-42 (D.C. Cir. 2016) (stating complaints do not need precise allegations). The plaintiff in this case simply used a conversion claim to establish jurisdiction over the foreign state, which then fit into the FSIA expropriation exception of property "taken in violation of international law." Id. at 142.

(13.) See De Csepel, 859 F.3d at 1099 (seeking dismissal of claims). Hungary alleges that the claims should be dismissed because of an international agreement from 1947 between "Hungary and the Allied Powers." Id. The Court notes that if a conflict between an international agreement and the FSIA exists, the international agreement must be honored. Id. See also Treaty of Peace with Hungary, art. 27, Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. 135 (detailing post-World War II treaty between United States and Hungary). Hungary promises that "in all cases where property, legal rights or interests" of Hungarian citizens or people within the jurisdiction of Hungary have been taken or seized "on account of the racial origin or religion" shall have the property returned, legal interest restored, or compensation provided to them. Id. The treaty goes on to establish that "any dispute concerning the ... execution of the Treaty" should be resolved by direct negotiations between the parties. Id. at art. 40. See also 28 U.S.C. [section] 1604 (1976) (noting international agreements affect foreign immunity). Foreign immunity is "[sjubject to existing international agreements to which the United States" was a part of at the time the FSIA was enacted. Id.

(14.) See De Csepel. 859 F.3d at 1110 (affirming FSIA expropriation exception satisfied). The Court affirmed the "district court's ruling that the Herzog family's claims to art never returned to them satisfy the FSIA's expropriation exception." Id. The commercial relationship requirement was met in the district court decision and not disputed by any of the parties. Id. at 1104. The defendant's treaty exception argument was struck down on account that while the 1947 Treaty of Peace with Hungary provides "one mechanism by which Hungarian victims may seek recovery, it does not establish the exclusive means of doing do." Id. at 1100. Importantly, the Court concluded the "rights in property" element for the FSIA expropriation exception was met because the taking of Jewish property in pursuit of the goals of the Holocaust is equal to committing genocide, which is a violation of international law. Id. at 1102. See also De Csepel, 169 F. Supp. 3d at 167 (noting commercial relationship element is met). A commercial relationship between the United States and Hungary exists and no party disputed that. Id. See also Simon, 812 F.3d at 137 (striking down treaty exception argument). Article 27 of the 1947 Treaty of Peace with Hungary does not have "language of exclusivity" that would prevent jurisdiction under an FSIA expropriation exception. Id. Taking property from Jewish people in the pursuit of the goals of Holocaust are genocide and therefore a violation of international law. Id. at 142-146. The court notes the United Nations' international legal definition of genocide and the United States' own definition of genocide encompasses the taking of property from an ethnic group. Id. at 143. See also U.N. Convention on the Prevention and Punishment of the Crime of Genocide, art. II, Dec. 9,1948, 78 U.N.T.S. 277, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx (defining genocide). Genocide is defined as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." Id. Acts of genocide against a group of people can include causing serious bodily harm, "killing members of the group," or "[deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Id. at art. 11(c). See also 18 U.S.C. [section] 1091 (2009) (providing United States' definition of genocide). Among the other acts listed, genocide can include "subjecting) the [ethnic] group to conditions of life that are intended to cause the physical destruction of the group in whole or in part." Id. [section] 1091(a)(4).

(15.) See Berizzi Bros. Co. v. S.S. Peraso, 271 U.S. 562, 576 (1926) (holding foreign merchant ship enjoys immunity). This case arose from the foreign defendant's failure to deliver certain goods to the port of New York. Id. at 569-70. The ambassador to Italy appeared in court for the government of Italy and argued that because the ship was under the ownership of the Italian government, immunity from the "process of the courts of the United States" precluded the action. Id. The Court had to determine whether a merchant ship, owned by a foreign government, is immune from process for an action brought by a private citizen of the United States. Id. The Court reasoned that the use of the ships, whether used for war or trade, were instruments of Italy, and enjoyed the immunity from the interferences of the courts of the United States. Id. at 574-75. The Court upheld "the prevailing view . . . that merchant ships owned and operated by a foreign government have the same immunity that warships have." Id. at 576. See also Schooner Exch. v. McFaddon, 11 U.S. 116, 146 (1812) (holding foreign military ships enjoy immunity). This case dealt with determining "whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States." Id. at 135. The Court noted that sovereign immunity impliedly exists as a custom in the mutually beneficial pursuit of good foreign relations. Id. at 137. The Court eventually held that the foreign ship enjoyed immunity. Id. at 146. The Court notes that the foreign ship came from a country that the United States was at peace with, the port was open to the ship, and the ship entered in a "friendly manner." Id. at 147. See also Mark B. Feldman, The United States Foreign Sovereign Immunities Act of 1976 in Perspective: A Founder's View, 35 Int'l. & Comp. L. Qtr. 302, 303 (1986), available at https:// www.jstor.org/stable/pdf/759230.pdf?refreqid=excelsior%3A0c27c225eba75a388f9c7b ecbae4eld0 (remarking on FSIA history). The theory of subjecting foreign governments to the jurisdiction of the United States courts was slow in gaining a foothold in American jurisprudence. Id. For some time, absolute immunity to a foreign government was applied to cases with foreign governments. Id.

(16.) See 28 U.S.C. [section] 1604 (1976) (noting exceptions subject foreign states to American jurisdiction). Generally, foreign states enjoy immunity from the jurisdiction of United States federal and state courts. Id. The FSIA provides exceptions, "provided in sections 1605-1607" of the FSIA that will allow jurisdiction over foreign states. Id. See also 28 U.S.C. [section] 1605 (2016) (providing exceptions to foreign state immunity). An action arising out of commercial activity with a foreign state may subject a foreign state to jurisdiction. Id. at [section] 1605(a)(2). Tortious actions committed by officials or employees of a foreign state can allow a claimant to achieve jurisdiction over a foreign state. Id. at S 1605(a)(5). See also Belize Soc. Dev., Ltd. v. Government of Belize, 794 F.3d 99, 102 (D.C. Cir. 2015) (asserting foreign immunity defense). When a foreign state asserts immunity under the FSIA, the foreign state defendant bears the burden of proving that a statutory exception does not exist. Id. See also Craig J. Hanson, The Foreign Sovereign Immunities Act: The Use of Prejudgment Attachment to Ensure Satisfaction of Anticipated Judgments, 2 Nw. J. Int'l L. & Bus. 517 (1980), available at https://scholarlycommons.law.northwestern.edu/cgi/ viewcontent.cgi?referer=https://www.google.com/&httpsredir=l&article=1085&context=njilb (discussing purpose of FSIA). The FSIA was carefully crafted to consider and balance the interests of American litigants bringing claims against foreign states and the international relationship between the United States and the foreign state defendant. Id. See also Feldman, supra note 15, at 303 (noting adoption of restrictive immunity). In 1952, the Department of State, at the behest of the "Tate letter," began to implement the "restrictive theory of immunity." Id. Finally, in 1976, the FSIA was created. Id. at 304. The FSIA was predicated on "three principal objectives " to: (1) allow courts to determine whether a foreign state enjoyed immunity, (2) "codify the restrictive theory of immunity," and (3) standardize the process for United States citizens to bring actions against foreign states. Id. at 304-05.

(17.) See 28 U.S.C. [section] 1603 (2005) (defining foreign state). For the purposes of the FSIA, a foreign state entails local governments created by the foreign state or a public service organization that maintains a close relationship with the government. Id. at S 1603(a). Specifically, an "agency or instrumentality of a foreign state" is separate legal persons or corporations that is part of the foreign state or local government within the foreign state. Id. at [section] 1603(b)(l-2). The agency or instrumentality must not be a United States citizen. Id. at (b)(3). See also De Csepel, 169 F. Supp. 3d at 167 (noting museums are agencies or instrumentalities of foreign state). The court noted that the museums of the foreign state fit well within parameters set forth in the FSIA. Id. The court goes on to say that the museums were operated by the government of Hungary and the museum's purpose were largely commercial. Id. Importantly, the government of Hungary never disputed as to whether museums are an agency or instrumentality of their government. Id. See also Andrew Loewenstein, The Foreign Sovereign Immunities Act and Corporate Subsides of Agencies or Instrumentalities of Foreign States. 19 Berkeley J. Int'l L. 350 (2001), https://scholarship.law.berkeley .edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=l&article=12 03&context=bjil (discussing definition of agency or instrumentality). The definition of a foreign state in the FSIA is broad and was such intended by Congress. Id. at 364. Instrumentalities of a foreign state can "assume 'a variety of forms.'" Id. (quoting In re Air Crash Disaster Near Roselawn, 96 F.3d 932, 936 (7th Cir. 1996)).

(18.) See 28 U.S.C. S 1605 (2016) (establishing expropriation exception). There are two requirements that must be met to establish a successful expropriation claim against a foreign state, (1) property or rights in property were "taken in violation of international law" and (2) a commercial relationship between the foreign state and the United States exists. Id. at [section] 1605(a)(3).

(19.) See Agudas Chasedei Chabad v. Russian Fed'n, 528 F.3d 934, 940 (D.C. Cir. 2008) (noting expropriation requirements). The expropriation exception requires claimants to prove that their property was taken in violation of international law and that there is a commercial relationship between the United States and the foreign state. Id. The plaintiff in this case, a Jewish religious organization, alleged that during the "October Revolution of 1917," the Russian Bolsheviks seized a portion of the plaintiffs collection of "thousands of religious books, manuscripts, and documents." Id. at 938. The religious texts were of particular importance to the plaintiff because it contained the "textual basis for the group's core teachings and traditions." Id. See also supra note 2 and accompanying text (providing information on expropriation exception).

(20.) See Simon v. Republic of Hung., 812 F.3d 127, 142-46 (D.C. Cir. 2016) (describing seizure of Jewish property). "This case arises out of one of humanity's darkest hours." Id. at 132. After Hungary and Germany allied with one another in World War II, the extermination of Jewish Hungarians began. Id. By the end of the war, almost half a million Jewish Hungarians were murdered, many of which were killed at Auschwitz in a "mere three-month period in 1944." Id. The plaintiffs in this case miraculously survived the destruction of their people, and brought action against the Hungarian government. Id. During the war, the plaintiffs, like all Jewish Hungarians, were sent to ghettos "where they were 'stripped of protective clothing, exposed to the elements, [and] deprived of sanitary facilities.'" Id. at 133. The Hungarian government also seized any valuables they had at the time. Id. The plaintiffs alleged a conversion claim, among others, against Hungary. Id. at 141. The court went on to analyze the conversion claim under the FSIA expropriation exception. Id. The court concludes their analysis and states:
   The Holocaust's pattern of expropriation and ghettoization entailed
   more than just moving Hungarian Jews to inferior, concentrated
   living quarters, or seizing their property to finance Hungary's war
   effort. Those sorts of actions would not alone amount to genocide
   because of the absence of an intent to destroy a people. The
   systematic, 'wholesale plunder of Jewish property' at issue here,
   however, aimed to deprive Hungarian Jews of the resources needed to
   survive as a people. Expropriations undertaken for the purpose of
   bringing about a protected group's physical destruction qualify as
   genocide (citation omitted).


Id. at 143 (quoting De Csepel, 714 F.3d at 594) (citation omitted). The court found that that the seizure of Jewish property in pursuit of genocide had a sufficient relation to each other, in other words, Jewish property was seized to destroy the Jewish people and violated international law. Id. at 142. Importantly, the court notes that even though the case involves genocide as a violation of international law, the court allows the "garden-variety common-law causes of action such as conversion, unjust enrichment, and restitution ..." to establish jurisdiction under the FSIA. Id. at 141. See also Bolivarian Republic of Venez, v. Helmerich & Payne Int'l Drilling Co., 137 S. Ct. 1312,1323-24 (2017) (acknowledging common law claims establish jurisdiction for expropriation exception). Here, the Supreme Court agrees with the court in Simon v. Republic of Hung, that a common-law claim is enough to satisfy jurisdiction for expropriation exception claim. Id. at 1324. The Court notes that if any other standard were used, the foreign defendant could simply file a motion to dismiss for failure to state a claim for which relief could be granted every time a common-law claim is filed against a foreign state. Id. at 1324-1325.

(21.) See Lauren Fielder Redman, The Foreign Sovereign Immunities Act: Using a "Shield" Statute as a "Sword" for Obtaining Federal Jurisdiction in Art and Antiquities Cases, 31 Fordham Int'l L.J. 781, 783-785 (2008) (discussing reasons for increase of art litigation). Recently, advances in technology, rising art prices, and a growing interest in art law cases have given rise to litigation regarding lost or stolen art in American courts. Id. at 783-785. Notably, attitudes about providing victims with justice by having their stolen art returned have been changing. Id. at 785. The Holocaust was a horrible event in history, where people's lives were destroyed and taken away from them; in the interest of justice, having their stolen art returned may alleviate and correct the wrongs of the past. Id. See also Jennifer Anglim Kreder, Reconciling Individual and Group Justice with the Need for Repose in Nazi-Looted Art Disputes, 73 Brook. L. Rev. 155, 158-59 (2007) (stating Nazi-looted art litigation rising). Litigation revolving around art stolen by the Nazi Party has been on the rise. Id. It is anticipated claims will likely increase as "Holocaust survivors and their families" will seek justice for what happened. Id. at 159. However, many Jewish victims are still left in the dark in regards to their own stolen art claim; as a result, "justice has not been done." Id. at 178. See also Howard N. Spiegler, Recovering Nazi-Looted Art: Report from the Front Lines, 16 Conn. J. Int'l L. 297, 298 (2001) (noting increase in stolen art cases). Because of the sheer number of art stolen in World War II, it is likely that the "number of claims will increase." Id. at 298-299. See also Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Rich. L. Rev. 5, 165 (2000) (declaring stolen art must be returned). The Nazi party looted approximately a quarter-of-a-million pieces of art during World War II. Id. at 161. Many museums around the world are suspected of holding Nazi-stolen art, including the "Louvre in Paris and the Hermitage in St. Petersburg, Russia." Id. at 161-162. Although the stolen art cases are difficult to litigate, "restoring Nazi-stolen art to its rightful owner . . . must be done." Id. at 165. See also Republic of Aus. v. Altmann, 541 U.S. 677, 688 (2004) (granting certiorari for stolen art case). The defendants in this case asserted that the FSIA did not grant the American court jurisdiction over because the law did not provide for it to be applied retroactively. Id. at 686. The Court, however, struck down this argument and reasoned that it was Congress' intent to have the FSIA retroactive application to past acts. Id. at 697. The Court notes that language in the preamble of the FSIA provides that immunity claims "should henceforth be decided" in American courts, thereby unambiguously establishing that "Congress intended courts to resolve all such claims . . . regardless of when the underlying conduct occurred." Id. at 697-698. As a result, the Court held that the FSIA could be used retroactively, noting that "[m]any of the [FSIAj provisions unquestionably apply to cases arising out of conduct that occurred before 1976." Id. See also Phil Hirschkorn, Why finding Nazi-looted art is 'a question of justice', PBS Newshour, (May 22, 2016), https://www.pbs.org/newshour/arts/why-findingnazi-looted-art-is-a-question-of-justice (remarking on Holocaust victims' quest for stolen art). "In the last two decades, tens of millions of dollars of looted art has changed hands." Id. Heirs of Holocaust victims have been bringing lawsuits against museums and collectors in an effort to recover the art looted from their families in WWII. Id. For example, the Museum of Fine Arts in Boston specifically hired someone to make sure none of the art in the museum was stolen. Id. See also Allison McNearney, My Hunt For The Art Collection Stolen By Nazis From My Family, The Dail.ybeast, (Sept. 27, 2015), https://www.thedailybeast.com/my-hunt-for-the-artcollection-stolen-by-nazis-from-my- family (noting changing attitudes on Nazi stolen art). When the effort to recover stolen art was a new thing, museums and governments fought hard to retain the art; however, as time went on, attitudes and legislation changed and the effort became easier. Id. It is important to note though, while the effort has become easier, families still have "to engage in a tooth-and-nail battle to reclaim each and every piece, not to mention the memories that go along with them." Id. But see Cleve R. Wootson Jr., A painting stolen by Nazis is up for auction --despite a Jewish family's demand for its return, Wash. Post, Apr. 24, 2017, https:// www.washingtonpost.com/news/worldviews/wp/2017/04/24/a-painting-stolen-by-nazisis-up-for-auction-despite-a-jewish- familys-demand-for-its-return/?utm_term=.98607a a37cdb (discussing auction of Nazi-stolen art). Adolphe Schloss amassed a collection of art numbering in the hundreds. Id. When he passed, he left the art collection to his family. Id. However, in WWII, the Nazis stole the art from the Jewish family and now, decades later, part of their stolen art collection is being put on auction in Austria. Id. But see Alan Riding, An Essay; Foot Dragging On the Return Of Art Stolen By the Nazis, N.Y. Times, May 18, 2004, http://www.nytimes.com/2004/05/18/arts/anessay-foot-dragging-on-the-return-of- art-stolen-by-the-nazis.html (noting victims' lack of resources hinders recovery effort). While some of the stolen art has been returned, there are still many victims who have not been able to recover. Id. For many victims and families of victims, age, money, and bureaucratic red-tape stand in the way of recovering their art. Id. While some countries have taken a conscious effort to provide victims with recovery, others have not been so quick to address the issue. Id. Some countries, like Austria and the Netherlands (Dutch) were reluctant to help with the effort. Id. The fight to recover the lost art is hard on families and takes time; for example, in Germany, the government database lists almost 70,000 pieces of missing art, of that number 1,800 works of art are being fought for by about ninety Jewish families, and so far, only ten cases were successfully resolved and the art was returned. Id.

(22.) See 28 U.S.C. [section] 1605 (2016) (noting commercial activity requirement). In addition to the rights in property requirement in the expropriation claim, the foreign defendant or "agency or instrumentality [must be] engaged in a commercial activity in the United States." Id. at 8 1605(a)(3). See also 28 U.S.C. [section] 1603(d) (2005) (defining commercial activity). "A 'commercial activity' means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." Id. Moreover, the commercial activity must be carried out by the foreign state and have "substantial contact with the United States." Id. at [section] 1603(e). See also Agudas Chasidei Chabad, 528 F.3d at 946 (describing court's commercial activity analysis). The foreign state defendants in this case were the Russian State Library and the Russian State Military Archive. Id. at 938. As part of the plaintiff's expropriation claim, the court had to determine whether the defendants had "engaged in sufficient commercial activity in the United States to satisfy" the FSIA requirement. Id. at 946. The facts of the case showed that the Russian State Library and the Russian State Military Archive were involved in publishing and sales contracts in the United States. Id. at 948. At the time of the suit, the Russian State Military Archive was engaged in multiple contracts with multiple American corporations that involved the "reproduction and worldwide sale" of their military materials. Id. Moreover, one particular contract with Primary Source Media included "provisions waiving sovereign immunity, specifying that the activities described in the contract are 'commercial in nature.'" Id. In addition, the Russian State Library:
   [E]ntered into agreements with Norman Ross Publishing (later
   succeeded by ProQuest), arranging for that firm to sell an
   encyclopedia and to produce and distribute "microcopies" of various
   RSL materials (in exchange for a 10% royalty payment to the RSL).
   One such contract has already yielded RSL over $20,000 and another
   over $5000.


Id. The court concluded that the commercial activity requirement was "plainly satisfied." Id.

(23.) See 28 U.S.C. [section] 1604 (1976) (describing treaty exception). The FSIA sets out that "existing international agreements to which the United States is a party at the time of enactment of this Act [enacted Oct. 21, 1976]" can have an effect on a foreign state's immunity. Id. See also Simon, 812 F.3d at 135 (noting treaty exception may preclude FSIA claim). The defendants in this case, Hungary, asserted that a 1947 treaty between Hungary and the United States allowed Hungary to maintain their foreign immunity. Id. at 137. See also De Csepel v. Republic of Hung., 169 F. Supp. 3d 143,167 (D.C. Cir. 2016) (remarking on FSIA treaty exception). "[S]ubject matter jurisdiction under the FSIA is subject to the treaty exception." Id.

(24.) See Simon, 812 F.3d at 135 (discussing treaty exception). The treaty exception provides that "if there is a conflict between the FSIA and such an agreement regarding the availability of a judicial remedy against a contracting state, the agreement prevails;" therefore, the foreign state retains its immunity. Id. (quoting De Cspel, 714 F.3d at 601). The claim to immunity on account of an existing treaty involved "the 1947 Peace Treaty between Hungary and the Allied Powers," which settled a variety of post-World War II issues. Id. at 136. The section of the treaty that was of particular importance to the court was the section that provided compensation for property taken from the Hungarian government during the war. Id. The court noted that while a treaty existed, the FSIA and the treaty did not conflict with each other. Id. at 140. The court concluded stating that the 1947 treaty provided victims of Hungary's seizure of property with compensation, but that such compensation was not an exclusive remedy to the war-time acts committed by the Hungarian government. Id. As a result, there was no express conflict. Id.

(25.) See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 719 (9th Cir. 1992) (noting United Nations resolution is not treaty). This case involves the kidnapping and torture of Jewish victim and plaintiff to the case, Jose Siderman. Id. at 70203. During his capture and torture he was subjected to electrocution with a cattle prod and was repeatedly called Jose a "'Jew Bastard' and a 'Shitty Jew;'" it was clear that Jose was subjected to such torture because of his Jewish faith. Id. at 703. Importantly, the people that tortured Jose were members of the Argentinian government. Id. at 702-03. At trial, the Sidermans asserted that Argentina's immunity was "subject to "Universal Declaration of Human Rights" which would thereby subject Argentina to the jurisdiction of the American courts. Id. at 719. The court concluded that the United Nations resolution did not create a binding agreement on Argentina, it only established legal obligations and as a result, the plaintiffs "failed to identify an international agreement to which the United States is a party that 'expressly conflicts with the immunity provisions of the FSIA.'" Id. at 720 (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989)).

(26.) See Simon, 812 F.3d at 136 (noting foreign state must prove treaty exception). The court states that Hungary must prove a treaty exists and that there is a clear conflict between the treaty and the FSIA. Id. at 137.

(27.) See Behring Int'l, Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383, 393 (D.N.J. 1979) (honoring international agreements). The judge in this case discusses his thoughts on Congress' intent when creating the FSIA and states: "I have repeatedly indicated my belief that the Immunities Act does not abrogate any existing international agreement to which the United States was a party prior to the Act's enactment. Congress was obviously careful not to abrogate existing agreements by the passage of the Immunities Act." Id. See also Moore v. United Kingdom, 384 F.3d 1079, 1085 (9th Cir. 2004) (noting conflict between treaty and FSIA precludes jurisdiction). "If there is a conflict between the FSIA and such an agreement regarding the avail-ability of a judicial remedy against a contracting state, the agreement prevails." Id. See also Simon, 812 F.3d at 136 (examining Hungary's treaty exception defense). Hungary claims that a treaty with the United States resolves any conflicts with Hungary and victims seeking compensation for property seized by the Hungarian government in World War II. Id. Hungary states that the treaty "expressly obligates Hungary to provide compensation or restitution for property rights and interests taken from Hungarian Holocaust victims," as a result, the plaintiff's claim for relief under the FSIA undermines the treaty between the United States and Hungary. Id. at 136-37. The court goes on to reason, and note, that in order for Hungary to proceed on their treaty exception defense, they need to show that the 1947 treaty "establishes the exclusive means by which Hungarian Holocaust victims can seek compensation for (or restoration of) property taken from them during the War." Id. at 137. The court concludes that the treaty only provides victims with an option, among others, and not an exclusive way to recover compensation. Id. To contrast, the court remarks on post-World War II treaties that contained express language that established "a final and exclusive resolution of war-related claims." Id. For example, the treaty between Japan and the United States that ended the War in the Pacific notes that "[ejxcept as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers [and] other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war." Id. at 138 (quoting Treaty of Peace with Japan, art. 14(b), Sept. 8,1951, 3 U.S.T. 319). The treaty that Hungary is asserting in their defense contains no waiver of claims or language to support a waiver of claims. Id. The court held that the 1947 treaty did not conflict with the FSIA because it did not create an exclusive means for compensation for war-time seizure of property by the Hungarian government. Id. at 140.

(28.) 859 F.3d at 1097 (considering Herzog family's FSIA claim).

(29.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1097 (D.C. Cir. 2017) (analyzing plaintiffs' FSIA claims). "For the second time, we consider a family's decades-long effort to recover a valuable art collection that the ... Hungarian government," in cooperation with the Nazi party, plundered from the plaintiffs in World War II. Id. First, the Court dealt with the fact that the FSIA provides conflicting international agreements, which may allow a foreign state defendant to retain their sovereign immunity. Id. at 1100-01. The Court then moved on to determine whether the Herzog family satisfied the "rights in property taken in violation of international law" requirement and the commercial relationship requirement. Id. at 1101-05. See also supra notes 18-19 and accompanying text (discussing FSIA expropriation exception analysis). The FSIA expropriation exception states that a claim will go forward against a foreign government if the property was "taken in violation of international law" and if a commercial relationship between the foreign state and the United States exists. Id. (quoting 28 U.S.C. S 1605(a)(3)). Here, the claimant must prove these two requirements for their claim to go forward under the FSIA. Id. See also supra note 24 and accompanying text (noting FSIA treaty exception). Conflicting international agreements between the foreign state defendant and the United States may allow a foreign state to retain their immunity. Id.

(30.) See De Csepel, 859 F.3d at 1110 (holding for plaintiffs' FSIA claim). The Court found that there was no conflicting international agreement. Id. at 1100. The Court also held that the "rights in property" requirement was met and that the commercial nexus requirement was satisfied. Id. at 1103-04.

(31.) See id. at 1103 (concluding seizing property during Holocaust violates international law). The factual background of the claims made by the Herzog family depict a story of hardship and injustice. Id. at 1097-99. The prominent family in pre-war Hungary amassed an impressive art collection only to have it taken away by the Hungarian government and the Nazi Party. De Csepel, 859 F.3d at 1097-98. This seizure of the Collection was all done in pursuit of the Hungarian government's and Nazi Party's mission to destroy the Jewish people; at one point, SS Commander Adolf Eichmann displayed the art stolen from the Herzog family in his personal headquarters in the "Majestic Hotel in Budapest." Id. The facts in this case almost directly mirrored the facts in a previous case, Simon v. Republic of Hungary, and the Court relied heavily on Simon in their analysis. Id. at 1101. The Court notes that in this case, much like what was determined in Simon, "Hungary's seizures of Jewish property during the Holocaust constituted genocide and were therefore takings in violation of international law." Id. The Court goes on to emphasize how similar the current case and Simon are; the Court remarks how both cases involved Hungary seizing "Jewish property during the Holocaust" and how both cases bring forth a common-law claim. Id. at 1102. Hungary argued that the bailment claim could not go forward because of its commercial nature, which should go through the FSIA commercial activity exception. Id. The Court strikes this down, however, and states that the Herzog family's claim of bailment recovery for their art collection "stems directly from [the art collections] expropriation ... during the Holocaust." De Csepel, 589 F.3d at 1102. See also Simon, 812 F.3d at 133-34 (describing factual background). This case was brought by Jewish survivors of the Holocaust who were persecuted in a myriad of horrible ways, including having their property illegally seized by the Hungarian government. Id. 132-34. The court notes the inherent fact that genocide violates international law, and concludes that seizing property in pursuit of the destruction of a group of people violates international law and fits within the FSIA expropriation exception. Id. at 142-43. See also supra note 14 and accompanying text (providing multiple definitions of genocide). Deliberate inflictions of horrible living conditions on a group of people in pursuit of their destruction is genocide. Id. Seizing property creates horrible conditions for the group and constitutes as genocide. Id.

(32.) See De Csepel, 859 F.3d at 1104 (noting commercial nexus requirement satisfied). The second requirement that must be met is that the "instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States." Id. The Court briefly notes, that this requirement was already established as satisfied in the cases' earlier procedural history. Id. See also De Csepel, 169 F. Supp. 3d at 167 (finding commercial nexus requirement is met). The Hungarian government did not even dispute the fact that a commercial activity between their agencies or instrumentalities and the United States existed. Id. The Court does briefly note, that museums and universities of the Hungary do fit within the FSIA definition because they are "majority-owned by the foreign state" and "[tjheir function is largely commercial." Id. See also Agudas Chasidei Chabad of U.S., 548 F.3d at 948 (finding commercial nexus exists). The agencies or instrumentalities in this case were the Russian State Library and the Russian State Military Archive; the court found that because of existing publication contracts with American corporations, a commercial relationship existed to satisfy the FSIA requirement. Id. See also supra note 22 and accompanying text (providing commercial activity requirement information). The FSIA defines commercial activity to mean "either a regular course of commercial conduct or a particular commercial transaction or act." Id. (quoting 28 U.S.C. [section] 1603(d)).

(33.) See De Csepel, 859 F.3d at 1100 (analyzing treaty exception defense). A foreign state's immunity may be affected on account of existing international agreements between the foreign state and the United States. Id. "[W]here 'a pre-existing treaty is said to confer more immunity than would the FSIA, the treaty exception would override any of the FSIA's exceptions to immunity under which the claims otherwise could go forward.'" Id. (quoting Simon, 812 F.3d at 135-36). The Hungarian government presented and argued that such an international agreement, the "1947 Treaty of Peace," existed and did allow them to retain their foreign immunity. Id. See also 1947 Treaty of Peace with Hungary, art. 27, Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. 135 (providing Holocaust victims recovery). Article 27 of the peace treaty states:

1. Hungary undertakes that in all cases where the property, legal rights or interests in Hungary of persons under Hungarian jurisdiction have, since September 1, 1939, been subject to measures of sequestration, confiscation or control on account of the racial origin or religion of such persons, the said property, legal rights and interests shall be restored together with their accessories or, if restoration is impossible, that fair compensation shall be made therefor.

Id. at art. 27(1). "|A]ny dispute concerning the interpretation or execution of the Treaty" shall be resolved through diplomatic negotiations, and if that fails, the dispute will be referred to the "Heads of the Diplomatic Missions in Budapest . . . ." Id. at art. 39-40.

(34.) See De Csepel v. Republic of Hung. 859 F.3d 1094, at 1100 (D.C. Cir. 2017) (striking down treaty exception defense). Hungary argued that the 1947 Treaty between the United States and the Hungarian government interfered with already and exclusively provided Holocaust victims with a means to seek recovery. Id. The Court again relied on Simon, and reasoned that the 1947 Treaty does in fact provide victims an opportunity to recover for the wrongs inflicted upon them during the Holocaust; however, the treaty does not contain language that would indicate that the treaty is the only way to seek recovery, rather the treaty simply provides one option, out of others. Id. See also Simon, 812 F.3d at 136-37 (discussing FSIA treaty exception). Hungary argues that a 1947 Peace Treaty prevents the claimants from proceeding. Id. at 136. "For the Hungarian defendants to prevail in their argument under the FSIA's treaty exception, they would need to show that Article 27 of the 1947 Treaty establishes the exclusive means by which Hungarian Holocaust victims can seek compensation for (or restoration of) property taken from them during the War." Id. at 137. If there is exclusivity in the treaty, the claimants can only seek recovery by way of the 1947 Treaty. Id. The court found that the language of the treaty "establish[ed] a minimum obligation by Hungary to provide restoration or compensation to Hungarian Holocaust victims for their property lossesf,]" but the treaty did not establish that the treaty was the only way a victim could seek recovery. Id. at 137.

(35.) See De Csepel, 859 F.3d at 1110 (holding for Herzog family). The Court held for the Herzog family and stated that their "claims to art never returned to them satisfy the FSIA's expropriation exception." Id.

(36.) 859 F.3d at 1100 (beginning FSIA analysis).

(37.) See id. at 1100 (examining Hungary's defense to FSIA claim). Hungary argues that the 1947 Peace Treaty precludes the claim from moving forward. Id. The Court also had to analyze the Herzog family's FSIA expropriation exception claim and had to determine whether the two requirements for the claim were satisfied. Id. at 1101. First, the Court had to determine whether the plaintiffs' "rights in property" were "taken in violation of international law." Id. (quoting 28 U.S.C. S 1605(a)(3)). Next, the Court had to determine whether there was a commercial nexus between the foreign state and the United States. Id. at 1104. See also supra note 19 and accompanying text (providing expropriation exception analysis). The claimants bear the burden of proof to establish the "rights in property" requirement and the commercial nexus requirement. Id. (quoting 28 U.S.C. 8 1605(a)(3)). See also supra note 24 and accompanying text (explaining FSIA treaty exception). FSIA claims are subject to international agreements that exist between the foreign state and the United States. Id. If there is an express conflict between the FSIA claim and the international agreement, the claim cannot go forward. Id.

(38.) See De Csepel, 859 F.3d at 1103 (satisfying "rights in property" requirement). "We thus conclude that 'rights in property taken in violation of international law' . . . as to those twenty-five or so artworks taken by Hungary during the Holocaust and never returned." Id. (quoting 28 U.S.C. S 1605(a)(3)).

(39.) See id. at 1101 (comparing seizure of Jewish property to genocide). The Court relied on the previous reasoning in Simon, and goes on to conclude that the Hungarian governments' seizure of the Collection "during the Holocaust constituted genocide," which is a violation of international law. Id. Here, the Herzog family's story closely mirrored the story of the victims in Simon, where both families were Jewish and both families were subjected to the horrifying acts of the Holocaust at the hands of the Hungarian government. Id. at 1102. See also supra note 8 and accompanying text (providing Herzog family history). The Herzog's, a Jewish family, were subject to the anti-Jewish laws, policies, and practices implemented by the Hungarian government in WWII. Id. As a result, their art collection, which took years to build, fell into the hands of the Nazi Party; later, the art collection was taken by the Hungarian government. Id. See also Simon, 812 F.3d at 142-46 (discussing Holocaust). First, the court began their analysis by reviewing the definition of genocide, which states: genocides includes "[deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part[.]" Id. at 143 (quoting Convention on the Prevention and Punishment of the Crime of Genocide, art. 2(c), Dec. 9,1948, 78 U.N.T.S. 277). The court then applies the definition to the facts set forth in the plaintiffs' complaint, which goes on to describe the government sponsored "wholesale plunder of Jewish property" was part of the destruction of the Jewish people. Id. (quoting de Csepel v. Republic of Hung., 714 F.3d 591, 594 (D.C. Cir. 2013)). The exact words of the complaint describe the unspeakable acts the plaintiffs were subjected to:
   [T]he Hungarian Holocaust proceeded in a series of steps and
   included the taking of property and ghettoization at various points
   in that process: "The Nazis ... achieved [the Final Solution] by
   first isolating [Jews], then expropriating the Jews' property, then
   ghettoizing them, then deporting them to the camps, and finally,
   murdering the Jews and in many instances cremating their bodies."
   The ghettoization effort included, as an integral component, the
   confiscation of the Jews' personal property. "Hungarian officials
   stripped Jews ... of their valuable possessions when they were
   transferred into the Jewish [ghettos]," and, once in the ghettos,
   Jews were "stripped of protective clothing, exposed to the
   elements, [and] deprived of sanitary facilities." The plaintiffs'
   individual experiences with ghettoization exemplified that pattern.
   And the defendants confiscated any personal property remaining in
   the victims' possession before transferring them via railroad to
   the Nazi death camps.


Id. at 143-44 (citations omitted). Because the plaintiffs described that the taking of their property was in pursuit of their destruction as a Jewish people, the first requirement of the FSIA expropriation exception was met. Id. See also supra note 14 and accompanying text (providing various definitions for genocide). Although the United Nations and the United States have their own, separate definitions of genocide, both definitions include that subjecting groups of people to deplorable living conditions in order to bring about their destruction constitutes as genocide. Id.

(40.) See De Csepel, 859 F.3d at 1104 (noting commercial nexus issue resolved). The Court briefly notes that the commercial nexus requirement was already resolved and directs the reader to the cases' previous history, the defendants did not dispute this previous conclusion. Id. See also De Csepel, 169 F. Supp. 3d at 167 (D.C. Cir. 2016) (discussing commercial nexus requirement). The "[defendants do not dispute the fact that the Hungarian museums are engaged in commercial activity in the United States[.]" Id. However, the defendants did argue that the museums and the university did not qualify as '"agencies or instrumentalities]' of Hungary." Id. (quoting Defendants' Reply at 22-23). The Court resolved this issue quickly, noting that the defendants had already admitted the fact that the museums and university were holding the stolen art; moreover, the Court did not like the fact that Hungary's assertion that the museums were not acting as agencies or instrumentalities did not fit with the law because the FSIA definition of agency or instrumentality clearly applied to the facts. Id. See also supra note 22 and accompanying text (providing commercial nexus analysis). The FSIA defines commercial activity as a regular or particular course of commercial conduct. Id. An example of sufficient commercial activity that fits within the FSIA requirement is a corporate contract between the foreign state defendant and the United States. Id. See also supra note 17 and accompanying text (providing FSIA foreign state definition). The FSIA states that foreign states also include "agencfies] or instrumentalities] of [the] foreign state . . . ." Id. (quoting 28 U.S.C. S 1603(2005)). The definition is broad, but such definition was intended to be so because "agenc[ies] or instrumentalities] of a foreign state" can appear in a myriad of forms. Id.

(41.) See De Csepel, 859 F.3d at 1100-01 (finding treaty defense fails). Hungary states that the 1947 Peace Treaty conflicts with the FSIA claim, which allows the defendants to be immune. Id. at 1100. While the FSIA does provide that claims brought under the act are subject to international agreements, the immunity of the defendants is not retained. Id.

(42.) See id. at 1100 (arguing 1947 Peace Treaty precludes FSIA claim). Hungary argues that a treaty has already "settled questions outstanding between the Allied Powers and Hungary, including claims of Hungarian nationals for property seized during the war ...." Id. See also 1947 Treaty of Peace with Hungary, art. 27, Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. 135 (affording Holocaust victims opportunity for recovery). As part of the terms for peace with the Allied Powers, Hungary promised to either return property taken during WWII or provide compensation. Id.

(43.) See De Csepel, 859 F.3d at 1100 (finding no express conflict between FSIA and treaty). The Court relied on a previous reasoning done in Simon v. Republic of Hung, that analyzed the very same treaty. Id. The Court notes the terms in the treaty "do not speak in the language of exclusivity];]" meaning, that while the treaty provides victims with means for recovery, the treaty does not provide it as the only way to do so. Id. (quoting Simon, 812 F.3d at 137). As stated in Simon, "although '[a] sovereign generally has the authority to espouse and settle the claims of its nationals against foreign countries[,] ... it has no authority to espouse and extinguish the claims of another state's nationals." Id. at 1100-01 (quoting Simon, 812 F.3d at 138). See Simon, 812 F.3d at 137 (finding 1947 Peace Treaty fails to preclude FSIA claim). The court analyzes the 1947 Peace Treaty and concludes that "while [the treaty] secures one mechanism by which Hungarian victims may seek recovery, it does not establish the exclusive means of doing so." Id. Importantly, the court then gives an example of a WWII peace treaty that did expressly provide that the treaty would establish the only way to seek recovery. Id. Specifically, a peace treaty between the United States and Japan stated "that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war..." and that "[ejxcept as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers...." Id. at 137-38 (quoting Treaty of Peace with Japan art. 14(a), Sep. 8, 1951, 46 U.N.T.S.).

(44.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1100-1101 (D.C. Cir. 2017) (striking down treaty defense). The Court correctly notes that the when "there is a conflict between" an international agreement and an FSIA claim, the international agreement prevails. Id. at 1100 (quoting De Csepel, 714 F.3d at 601). In this case, the claim brought by the Herzog family did not conflict with the 1947 Peace Treaty Hungary introduced, and the defense failed. Id. at 1100-1101. See also Behring Int'l. 475 F. Supp. at 393 (mentioning purpose of FSIA treaty exception). The FSIA provides that international agreements prevail over FSIA claims because the United States does not want to tarnish international relations. Id. When drafting the FSIA, it was the intent of Congress to establish the treaty exception to avoid delegitimizing international treaties or agreements. Id. See also supra notes 33-34 and accompanying text (explaining Court's treaty exception analysis).

(45.) See Redman, supra note 21, at 783-85 (remarking on rise of Nazi stolen art litigation). Many pieces of art were stolen from Jewish families in WWII; in addition, many pieces of the stolen art have been transferred around for decades. Id. at 783. It is important to note that, not only has technology played a part in the effort to recover stolen art, the Nazi art litigation is "generating public interest and precedent, which generate more [stolen art] cases." Id. at 783. Moreover, there is an increased interest in the "scholarly and journalistic" community on the subject of stolen Nazi art. Id. at 784. For example, a journalist helped expose Austria's seizure of several paintings in WWII. Id. See also Kreder, supra note 21, at 155 (discussing rise in art litigation). Nazi stolen art litigation has seen a rise in the courts and in the news. Id. Legislation that provides victims a pathway to recovery and an increase in research efforts to seek out stolen art will likely lead to an "explosion of claims" in the courts. Id. at 158-59. See also Spiegler, supra note 21, at 298-99 (noting stolen art claims will increase). As time goes on, "information concerning the ownership of [the stolen art]" will become more transparent, and "there can be no doubt that the number of claims will increase." Id. at 299.

(46.) See McNearney, supra note 21 (noting claims not always successful). Simon Goodman was a once successful business person in Los Angeles, but when he discovered "[h]e was from a very wealthy, prominent German Jewish family that was destroyed during World War II" that had their art collection stolen by the Nazis, he quit his job to fight to have the art reclaimed. Id. While some of Goodman's claims have successfully resulted in the actual recovery of the stolen art, other claims stated that Goodman could only jointly sell the stolen art and split the proceeds with the collector that came into possession of the art post-WWII. Id. Moreover, even claims that resulted in the recovery of some art were still missing pieces that were in fact stolen. Id. In 2002, Goodman recovered some of the art stolen from his family, but the Dutch government still retained art that was taken from his family. Id. Sadly, in order to fund his fight to recover art stolen from his family "[h]e's had to sell much of the work he's gotten back in order to fund the expensive search efforts. . . ." Id. Importantly, Goodman does state that public opinion in the art community has helped him when interacting with some of the private collectors in regards to stolen art. Id. See also Wootson, supra note 21 (discussing sale of Nazi stolen art). This article tells the story of the Schloss family, who seeks the recovery of a piece of art that was stolen from them by the Nazis in WWII. Id. "The painting is Bartholomaus van der Heist's 'Portrait of a Man,' an oil print on wood," and was put up for auction.

Id. An attorney for the Schloss family stated that the family claims the art is theirs and it shouldn't be sold, rather, it should be returned to them. Id. The family has had to fight numerous legal battles because "[i]n Austria, a person who buys a looted painting can't be prosecuted or forced to turn over the artwork if they can show they purchased it in good faith." Id. In the end, the sale went through, but the owner offered to sell the piece of art and split the proceeds with the family as a compromise. Id. Unfortunately, "the Schlosses want the painting, not the money." Id. The owner of the painting believes there is no "moral obligation to give paintings back." Id. See Riding, supra note 21 (remarking on lack of recovery for stolen art cases). While countries have taken an effort to provide victims with the means to search for their stolen art, the results of the effort are not fruitful. Id. For example, there are 6,000 museums in Germany, 18 of those museums have published reports that state about 20,000 pieces of art are suspected of being stolen, and only 5 pieces of artwork have been returned. Id. "What is becoming apparent, however, is that much of the art 'lost' by Jewish families and not returned after World War II may be lost forever. Some heirs still have faded prewar photographs of art treasures on Grandpa's sitting-room wall, but finding the works is not enough." Id. Many of these victims or the families of victims, lack the money or even the time, because they are so old, to properly pursue the claims for their art. Id. See also Spiegler, supra note 21, at 298 (noting lack of success for art claims). Generally, the art is never returned to the victims or victims' families, and typically, the litigation is long and drawn out. Id.

(47.) See Simon, 812 F.3d at 132 (remarking on horrors of Holocaust). The court remarks on the facts of the case and refers to the Holocaust as "one of humanity's darkest hours." Id. See also supra notes 7-9 and accompanying text (describing Herzog's Holocaust experience). When Hungary became allies with the Axis Powers, the Herzogs, and the thousands of other Jewish families in Hungary, were subject to hateful anti-Jewish laws. Id. Everything was taken from the Jews, the Jews were then sequestered into ghettos, then finally, the Jews were sent to concentration camps to die. Id. See also Redman, supra note 21, at 785 (remarking on justice for victims). The author notes that returning stolen art to Holocaust victims is "restorative justice." Id. The author goes on to explain:
   There is an emerging idea that something can and should be done to
   rectify, at least in part, the atrocities of the Holocaust. The
   taking of art as a part of war has a "psychological and emotional
   dimension" that only its return can satisfy. Furthermore, providing
   a judicial forum for the return of the art is a public repudiation
   of evil.


Id. at 785-86 (footnotes omitted). See also, Kreder, supra note 21, at 177-78 (noting claims not always successful). "It appears indisputable that justice has not been done with regard to many families' claims to artworks." Id. The author recalls the horror of the Final Solution:
   It must not be forgotten, however, that one core part of the Nazis'
   proposed Final Solution was the destruction of Jewish culture and
   the targeted pillaging of its art. The Nazis maintained "that Jews
   had intentionally duped the German people into embracing
   nontraditional aesthetic styles" and "that they had promoted modern
   art as a ploy to reap huge profits." Hitler sought to eliminate
   Jewish culture from the Third Reich, including modern art, which he
   deemed "degenerate."

   The Nazi regime targeted such art initially to destroy it, and then
   after recognizing its value in the market, to trade it for other
   works or sell it to raise capital to fuel its racist regime.


Id. at 160 (footnotes omitted). See also Bazyler, supra note 21, at 165 (discussing need for justice). "While the task of restoring Nazi-stolen art to its rightful owners is difficult, it must be done." Id. The author calls upon the remarks of one commentator about the Holocaust and why the need to return the stolen art is historically unique:
   The Nazis weren't simply out to enrich themselves. Their looting
   was part of the Final Solution. They wanted to eradicate a race by
   extinguishing its culture as well as its people. This gives these
   works of art a unique resonance, the more so since some of them
   were used as barter for safe passage out of Germany or Austria for
   family members. The objects are symbols of a terrible crime;
   recovering them is an equally symbolic form of justice.


Id. (footnote omitted). The author concludes his paper stating: "[a]s long as one Holocaust survivor is alive somewhere in the world ... litigation of the Holocaust will continue in [the United States] courts." Id. at 263.

(48.) 812 F.3d 127 (D.C. Cir. 2016) (reasoning Hungarian expropriation of Jewish art constitutes genocide).

(49.) See De Csepel, 859 F.3d at 1100 (relying on Simon). From the beginning of the court's analysis of the issues, the Court relied on the recent ruling in Simon v. Republic of Hung., which contained almost the same facts and issues. Id. at 1100-01. In regards to Hungary's treaty defense, the Court called back to the analysis of the treaty defense in Simon, which dealt with the same 1947 treaty between the United States and Hungary. Id. at 1100-1101. When the Court moved onto the expropriation exception analysis, the Court again relied on Simon; the Court even expressly states "[t]his case is just like Simon." Id. at 1102. The Court even relies upon the reasoning in Simon that equates expropriation of Jewish property in WWII to genocide. Id. at 1101. See also Redman, supra note 21, at 783 (stating rise in cases leads to new precedent). The increased interest in stolen art litigation, as seen in the public's own interest and in the increased number of cases in the courts, is leading to new precedent being established for future cases. Id.

(50.) See De Csepel v. Republic of Hung. 859 F. 3d 1094, at 1095 (D.C. Cir. 2017).
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