WILL THE THAW WITH CUBA ALLOW FOR THE RETURN OF CONFISCATED ART, OR IS THIS MERELY AN INDIAN…ER…CUBAN SUMMER?

With the slow warming of relations between Cuba and the United States, Cuban emigres who had their property confiscated by the Cuban government during the 1950s and 60s are beginning to seek restitution of that property.  This includes those who owned art collections that were subsequently seized by the Cuban government, many of which now hang in Cuban museums and government offices.   So far claims by Cuban exiles for the return of confiscated art have been ignored by the Cuban government or met with an official *shoulder shrug* there-is-nothing-we-can-do-about-it response.

Those seeking the return of confiscated art in a US court will have an uphill battle.  Courts are very deferential to anything that might interfere with the foreign relations of the US.  The judgment of a US court that the Cuban government illegally confiscated art (and other property) could certainly be seen as an interference in foreign relations, as the thaw is in its early stages…and still has the potential to return to a deep freeze.  Given the US’s history of trying to be an overbearing big brother to Cuba, a demand by US courts to return confiscated art might well cause Cuban officials to retreat from any US overtures.

What might help claims by exiles for a return of confiscated art is that Cuba will be unable to claim that the confiscation was an act of state.  The Second Hickenlooper Amendment (22 USC Sec. 2370(e)(2)) usually bars the act of state doctrine to seizures that occurred after January 1, 1959, but it is not absolute.  I do not know the history of this amendment, but given that it passed during the period when Cuban officials were confiscating private property, it begs the question of whether there is a coincidence there.  Then again, if the Soviet Union, and the confiscation of property by the Bolsheviks is any indication, the courts may very well find that any confiscation by the Cuban government was legitimate.  If the act of state doctrine were available to the Cuban government, the legal analysis would be strikingly similar to that of the Bolshevik/Soviet confiscations.  It may be that in the end, politics gets in the way, and the Cuban government will be able to by-pass the Second Hickenlooper Amendment and make a claim of act of state.