There is a sentence in a 2024 ruling by a US federal court that captures, better than any essay, the distance that can open up between what is just and what is legal. Reviewing a claim by the heirs of a Jewish collector over a painting which, on the account accepted for procedural purposes, Nazi persecution had forced its owner to sell, the court wrote this: the Emdens may be right. The painting may have been improperly sent, it may have been handed to the wrong person, the museum may be violating international principles by refusing to return it. And then, with no transition: but it is not our job to call into question the decisions of foreign nations.
The painting is a view of the marketplace at Pirna, painted around 1764 by Bernardo Bellotto. Max Emden, a German Jewish collector, owned it before the war. For the purpose of reviewing the dismissal, the ruling accepts the account that Nazi persecution caused him severe financial hardship and forced him to sell his three Bellottos below their value to a dealer who immediately resold them for the museum Hitler was planning in Linz. The Houston museum, where the painting ended up, maintains that the sale was voluntary, and this should be said, because no trial ever settled that point. But what makes this case fascinating and terrible is not the sale. It is what came after.
In 1945 the Monuments Men, the Allied unit that rescued looted art, found the paintings in an Austrian salt mine. From there begins a chain of errors that seems written to illustrate a thesis. Two versions of the same painting existed: Emden’s, painted by Bellotto, and another, a copy by an unknown artist, claimed by a man named Moser. The Dutch agency handling restitutions asked the Americans for ‘a work by Bellotto’, without specifying which. The depot held only one painted by Bellotto, Emden’s, and that was the one they sent. The Dutch then handed it to Moser, whose claim concerned the copy by the unknown artist. Moser sold it to the American collector Samuel Kress, and from there, by donation, it reached the museum. The autograph version, the one that had belonged to a victim of Nazi persecution, ended up hanging in Houston through a series of administrative mix-ups.
The heirs sued. And here the law makes a move worth thinking about. The court did not say they were wrong. It did not compare the competing titles and rule that the museum was the rightful owner. It did not declare that the forced sale did not count. It did something else, something more unsettling: it said it could not decide the question at all. To find for the heirs, it would have had to declare invalid the act by which an official Dutch agency handed the painting to Moser, and under what is known as the act of state doctrine, a US court cannot judge the validity of the official acts of another country. The Dutch agency acted as an arm of the state; handing over the painting was an act of government; and faced with that official act of another state, the court held that it must refrain from ruling on its validity.
The barrier is not a technicality: the court did not hide behind a missed deadline or a procedural defect. The act of state doctrine limits, for prudential rather than jurisdictional reasons, what a US court may adjudicate about the public acts of another state, and when it applies it operates as a substantive defence on the merits. It rests on the idea that a judge in one country should not set themselves up as arbiter of what the government of another has done. It has its logic, and a serious one. But its effect, in this case, is that the whole account of the spoliation can be on the table, taken as true for procedural purposes, and still produce no restitution. Recognition is left suspended, without material consequence. The court accepts that the heirs might be right, even that the museum might be violating the Washington Principles by refusing to return the painting, and upholds the dismissal because it is not its place to question the decision of another state.
This is what I think the case teaches beyond its particular tragedy. We tend to assume that recognising a harm is the hard step, and that once it is recognised, reparation follows almost under its own weight. That if something is proven to have been stolen, it is given back. The Emden ruling shows the opposite: recognising and repairing are two distinct operations, and the first does not carry the second with it. One can accept the account of persecution, the forced sale, the error and the possible breach of restitution principles, and at the same time repair nothing, because between recognition and reparation a third condition intervenes: that there be a body willing to act on what has been recognised, and with the authority to do so. When that body is missing, or considers that it must refrain from acting, recognition becomes a gesture without effect, almost a cruelty: the dispossession may have happened as you say; you may be right to claim; even so, this court will not order the return.
I believe this dissociation also appears outside the courts: commissions that document atrocities without anyone being held to account, official apologies that arrive without reparation, reports that describe an abuse in detail and are then filed away. I am not claiming it always happens this way. But when it does, recognition of the harm is split off from reparation, which is the operation that costs something, and reparation is deferred to a body that does not exist or cannot act. ‘They may be right’ condenses that split: it admits the possibility of the wrong without requiring anything to be given back.
As of September 2026 the painting is still in Houston. The heirs have exhausted the federal courts; the Supreme Court denied certiorari on 4 November 2024, which does not mean it endorsed the reasoning, only that it did not review the case. And that sentence remains, ‘they may be right’, hanging over the matter as what it is: the record, in writing and signed by a judge, that a court can accept that the claimants may be right and still consider that the law prevents it from granting them the redress they seek.
About the open conversation
This text starts from the ruling in Emden v. Museum of Fine Arts, Houston (US Court of Appeals for the Fifth Circuit, 29 May 2024; certiorari denied by the Supreme Court on 4 November 2024), concerning the claim by the heirs of a Jewish collector to a work by Bellotto that the Nazis allegedly forced him to sell, and which reached a US museum after a chain of errors in post-war restitutions. For the purpose of reviewing the dismissal, the court took as true the heirs’ account of the spoliation, but it neither adjudicated ownership nor ordered restitution, on the ground that doing so would require questioning an official act of the Dutch state. What interests me is what the ruling reveals about the difference between recognising a harm and repairing it: that the first operation does not carry the second with it, and that recognition without a body willing to act on it can remain a gesture without effect. I do not pass judgement on the merits of the 1938 sale, which the museum disputes and which no trial resolved. If anyone wishes to contribute from the perspective of law, art restitution or the theory of reparation, this notebook remains open.
Sources
Emden v. Museum of Fine Arts, Houston, 103 F.4th 308, No. 23-20224, United States Court of Appeals for the Fifth Circuit, judgment of 29 May 2024. It upheld the dismissal of the suit under the act of state doctrine. Rehearing denied on 25 June 2024; the Supreme Court denied certiorari on 4 November 2024 (No. 24-341), without ruling on the merits.
The court’s exact words: ‘The Emdens may be right: The Monuments Men may have improperly sent the By Bellotto Pirna to the SNK; the SNK may have unjustifiably sent Moser the By Bellotto Pirna… and the Museum may be violating the Washington Principles by refusing to return the painting to the Emdens. But, per the act of state doctrine, it is not our job to call into question the decisions of foreign nations’. On the nature of the doctrine: ‘It limits, for prudential rather than jurisdictional reasons, the adjudication in American courts of the validity of a foreign sovereign’s public acts’; ‘when applicable, it provides… a substantive defense on the merits’.
The work is the autograph version of The Marketplace at Pirna (c. 1764) by Bernardo Bellotto (‘By Bellotto’); the other version, claimed by Moser, was a copy by an unknown artist (‘After Bellotto’). For the purpose of reviewing the dismissal under Rule 12(b)(6), the ruling accepts the account that Nazi persecution forced Max Emden to sell his three Bellottos below market value; there was no trial on the merits of that point, and the Museum of Fine Arts, Houston maintains that the 1938 sale was voluntary.
Post-war trail (recovery at Altaussee in 1945, mistaken shipment to the Netherlands owing to confusion between the two versions, award to Moser, sale to Samuel Kress in 1952 and donation to the museum in 1961): reconstructed in the ruling and checked against the provenance research of the Monuments Men and Women Foundation and the museum’s own catalogue entry. The two institutions disagree on whether the 1938 sale was forced or voluntary.