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U.S. Supreme Court Rules that the Foreign Sovereign Immunity Act's Expropriation Exception Does Not Extend to Domestic Takings

Published online by Cambridge University Press:  21 July 2021

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In Federal Republic of Germany v. Philipp, the U.S. Supreme Court unanimously held that a country's taking of property from its own nationals does not fall within the Foreign Sovereign Immunities Act (FSIA) exception for “rights in property taken in violation of international law.” The case involved a claim that Nazi officials coerced a consortium of three art firms owned by Jewish residents of Germany to sell a collection of “medieval relics and devotional objects known as the Welfenschatz” to Prussia for “approximately one-third of their value.” The plaintiffs—descendants of the members of the consortium—argued that the coerced sale constituted genocide, thus bringing their claim within the FSIA exception. The Supreme Court disagreed, holding that “the expropriation exception is best read as referencing the international law of expropriation rather than of human rights” and that international law does not bar a state's taking of the property of its own nationals. The Court declined to reach Germany's alternative argument that international comity required dismissal of the case, and it vacated and remanded a companion case, Republic of Hungary v. Simon, that also posed the comity question.

Type
State Jurisdiction and Immunity
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law

In Federal Republic of Germany v. Philipp, the U.S. Supreme Court unanimously held that a country's taking of property from its own nationals does not fall within the Foreign Sovereign Immunities Act (FSIA) exception for “rights in property taken in violation of international law.”Footnote 1 The case involved a claim that Nazi officials coerced a consortium of three art firms owned by Jewish residents of Germany to sell a collection of “medieval relics and devotional objects known as the Welfenschatz” to Prussia for “approximately one-third of their value.”Footnote 2 The plaintiffs—descendants of the members of the consortium—argued that the coerced sale constituted genocide, thus bringing their claim within the FSIA exception. The Supreme Court disagreed, holding that “the expropriation exception is best read as referencing the international law of expropriation rather than of human rights” and that international law does not bar a state's taking of the property of its own nationals.Footnote 3 The Court declined to reach Germany's alternative argument that international comity required dismissal of the case, and it vacated and remanded a companion case, Republic of Hungary v. Simon, that also posed the comity question.Footnote 4

The Welfenschatz includes pieces dating back to the Holy Roman Empire.Footnote 5 The consortium of art firms purchased the collection during the Weimar Republic and sold some pieces to European and U.S. museums before, the complaint alleges, Nazi official Hermann Goering used “a combination of political persecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935” for well below market value.Footnote 6 During the occupation of Germany after World War II, the United States came into possession of the collection and then returned it to the Federal Republic of Germany.Footnote 7 The Stiftung Preussischer Kulturbesitz (SPK), a government instrumentality, now holds the collection.Footnote 8 The consortium members’ heirs attempted to reclaim the pieces from the SPK, but the organization determined that the 1935 transaction “occurred at a fair market price without coercion.”Footnote 9 In 2014, the heirs and the SPK agreed to submit the dispute to a German commission tasked with the return of cultural property seized during the Nazi era, and the commission similarly determined “that the sale had occurred at a fair price without duress.”Footnote 10 The heirs subsequently brought their common law property claims in federal court in the District of Columbia, seeking $250 million in compensation.Footnote 11

The FSIA provides the sole basis for a federal court's jurisdiction over a foreign state, and foreign states retain sovereign immunity unless their conduct falls within a specified exception.Footnote 12 Cases where “rights in property taken in violation of international law are in issue” represent one of these exceptions.Footnote 13 The district court accepted the heirs’ argument that the expropriation exception applied because the alleged coerced transfer of the Welfenschatz was connected to an act of genocide and therefore a taking in violation of international law.Footnote 14 The D.C. Circuit affirmed and then denied en banc review over a dissent from Judge Katsas.Footnote 15 The Supreme Court granted certiorari.

Before the Supreme Court, the heirs argued that their claim fell within the expropriation exception “because the coerced sale of the Welfenschatz . . . constituted an act of genocide, and genocide is a violation of international human rights law.”Footnote 16 The plain text of the FSIA, they argued, therefore deprived the SPK of sovereign immunity because this was a taking of property in violation of international law.Footnote 17 The heirs also asserted that when the FSIA was enacted, it was executive and congressional policy that Nazi art takings violated international law, and legislative history shows that Congress anticipated domestic takings claims under the expropriation exception.Footnote 18

Germany argued that the expropriation “exception is inapplicable because the relevant international law is the international law of property,” under which “a foreign sovereign's taking of its own nationals’ property remains a domestic affair.”Footnote 19 Germany also contended that the exception codified the “customary international law of expropriation as it existed when Congress enacted the FSIA,” and “[t]his body of international law only addresses a state's taking of foreign nationals’ property.”Footnote 20 As a result, Germany argued that the heirs “alleged a domestic taking, not a taking ‘in violation of international law,’”Footnote 21 and therefore Germany should retain sovereign immunity.

The United States filed an amicus brief in support of Germany. The United States argued that “the expropriation exception does not apply to cases in which a sovereign has taken the property of its own nationals,”Footnote 22 and no different rule applies for domestic takings that occur as part of a human rights violation.Footnote 23 The United States argued that the D.C. Circuit erred in holding that the expropriation exception “encompass[es] claims involving property seized as part of a genocide” because the FSIA's “text, context, and history all demonstrate that the expropriation exception deprives a sovereign of immunity only in cases where the sovereign is alleged to have violated the international law governing expropriations.”Footnote 24

In a unanimous opinion by Chief Justice Roberts, the Supreme Court ruled in favor of Germany, reversing the decision below. The Court began by examining background principles of international law and noting that “international law customarily concerns relations among sovereign states, not relations between states and individuals.”Footnote 25 Thus, according to the Court, international law governs a state's taking of the property of foreigners, but the “‘domestic takings rule’ assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law.”Footnote 26 The Court noted that the domestic takings rule “has deep roots not only in international law but also in United States foreign policy,” citing a 1938 letter from U.S. Secretary of State Cordell Hull to Mexico's ambassador, protesting Mexico's nationalization of American oil fields but also recognizing Mexico's right to take the property of its own nationals.Footnote 27

The Court explained that the domestic takings rule has survived the growth of international human rights law, which regulates states’ actions with respect to their own nationals.Footnote 28 Major human rights documents, including the Universal Declaration of Human Rights and the Genocide Convention, are “silent . . . on the subject of property rights,” and international tribunals have held that a state's takings of its own nationals’ property did not violate customary international law.Footnote 29

The Court noted that, to the extent that the international law of property has provoked criticism, such critiques have come from those arguing that “all sovereign takings [a]re outside the scope of international law,” not that international law should prohibit domestic takings.Footnote 30 The Court considered such arguments in Banco Nacional de Cuba v. Sabbatino, which involved claims related to Cuba's nationalization of U.S. interests in a sugar factory, and avoided the issue by invoking the act of state doctrine.Footnote 31 In response to Sabbatino, Congress adopted the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964, which prohibited U.S. courts from applying the act of state doctrine “where a ‘right[] to property is asserted’ based upon a ‘taking . . . by an act of that state in violation of the principles of international law.’”Footnote 32 The Amendment, the Court explained, “permit[s] adjudication of claims the Sabbatino decision had avoided—claims against foreign nations for expropriation of American-owned property,” but did not “purport[] to alter any rule of international law, including the domestic takings rule.”Footnote 33 When Congress adopted the FSIA in 1976, it used nearly the same language in the expropriation exception that it had previously used in the Second Hickenlooper Amendment.Footnote 34

Turning to the language of the FSIA, the Court explained that the expropriation exception's text “as a whole supports Germany's reading”:

The exception places repeated emphasis on property and property-related rights, while injuries and acts we might associate with genocide are notably lacking. That would be remarkable if the provision were intended to provide relief for atrocities such as the Holocaust. A statutory phrase concerning property rights most sensibly references the international law governing property rights, rather than the law of genocide.Footnote 35

The heirs’ contrary interpretation, the Court explained, “is not limited to violations of the law of genocide but extends to any human rights abuse,” and therefore “would arguably force courts themselves to violate international law, not only ignoring the domestic takings rule but also derogating international law's preservation of sovereign immunity for violations of human rights law.”Footnote 36

The Court added that the property-based interpretation aligns more closely with “the FSIA's express goal of codifying the restrictive theory of sovereign immunity.”Footnote 37 Although recognizing that the expropriation exception narrows foreign sovereign immunity even more than the restrictive view by “permit[ting] the exercise of jurisdiction over some public acts of expropriation,” the Court nonetheless declined to “subject all manner of sovereign public acts to judicial scrutiny under the FSIA by transforming the expropriation exception into an all-purpose jurisdictional hook for adjudicating human rights violations.”Footnote 38

Other FSIA provisions bolstered the Court's conclusion. The Court noted that when Congress did target human rights violations in the FSIA, “it did so explicitly and with precision” in the exceptions for noncommercial torts and state sponsors of terrorism.Footnote 39 These carefully calibrated provisions, the Court concluded, “would be of little consequence if human rights abuses could be packaged as violations of property rights and thereby brought within the expropriation exception to sovereign immunity.”Footnote 40

In addition, the Court noted that it generally interprets statutes to avoid friction with other nations. The Court explained that given that the United States “would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States government years ago,” Germany could well react similarly.Footnote 41

The Court concluded that “the phrase ‘rights in property taken in violation of international law,’ as used in the FSIA's expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.”Footnote 42

In ruling for Germany based on the expropriation exception, the Court declined to reach the other question presented in the case, namely Germany's argument that the district court “was obligated to abstain from deciding the case on international comity grounds.”Footnote 43 The D.C. Circuit had rejected Germany's argument that the court should decline to exercise jurisdiction as a matter of international comity unless the heirs first exhausted their remedies in German courts.Footnote 44 The Supreme Court had also granted review of the domestic exhaustion and international comity question in another case, Republic of Hungary v. Simon,Footnote 45 in which Jewish Hungarian nationals sued Hungary and its state-owned railway for expropriation of property during the Holocaust.Footnote 46 In both cases, the parties disagreed about whether the FSIA displaced common-law considerations of comity, or whether international comity survived the statute's enactment. In Simon, Hungary argued that comity-based abstention survived the passage of the FSIA.Footnote 47 In Philipp, Germany also contended that the lower court erred by conflating sovereign immunity—which the FSIA addresses—and comity-based abstention—which it does not.Footnote 48 In both cases, the United States agreed that the FSIA does not prevent courts from applying comity in cases that fall under the FSIA's exceptions.Footnote 49

The parties also disputed whether the FSIA provision specifying the extent of a foreign sovereign's liability under the statute allowed for application of comity. The foreign states and the United States contended that because a private individual may assert a comity defense, and the FSIA provides that a foreign state “shall be liable in the same manner and to the same extent as a private individual,” the FSIA allows sovereigns to assert a comity defense as well.Footnote 50 The survivors responded that the provision only limits a foreign sovereign's “substantive liability” and does not govern the extent of U.S. courts’ “jurisdiction over a foreign sovereign defendant.”Footnote 51

By declining to reach the comity question in Philipp and remanding Simon for further proceedings based on Philipp,Footnote 52 the Court left in place a circuit split between the D.C. and Seventh Circuits regarding whether comity applies to claims brought under the FSIA when plaintiffs fail to exhaust local remedies.Footnote 53 As a result, the Court will likely need to grant certiorari in the future to settle the question.

References

1 Fed. Republic of Germany v. Philipp, 141 S. Ct. 703, 715 (2021).

2 Id. at 708.

3 Id. at 712.

4 Republic of Hungary v. Simon, 141 S. Ct. 691 (2021).

5 Fed. Republic of Germany v. Philipp, 141 S. Ct. at 708.

6 Id.

7 Id.

8 Id. In English, the SPK is known as the Prussian Cultural Heritage Foundation.

9 Id.

10 Id.

11 Id.

12 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434–35 (1989).

13 28 U.S.C. § 1605(a)(3).

14 Philipp v. Fed. Republic of Germany, 248 F. Supp. 3d 59, 71 (D.D.C. 2017).

15 Philipp v. Fed. Republic of Germany, 894 F.3d 406, 418 (D.C. Cir. 2018); Philipp v. Fed. Republic of Germany, 925 F.3d 1349 (D.C. Cir. 2019).

16 Fed. Republic of Germany v. Philipp, 141 S. Ct. at 709.

17 Brief for Respondents at 11–13, Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021) (No. 19-351).

18 Id. at 19–26.

19 Fed. Republic of Germany v. Philipp, 141 S. Ct. at 709.

20 Brief for Petitioners at 17, Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021) (No. 19-351) [hereinafter Philipp Petitioners’ Brief].

21 Id. at 19.

22 Brief for the United States as Amicus Curiae Supporting Petitioners at 10, Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021) (No. 19-351) [hereinafter Philipp U.S. Amicus Brief].

23 Id. at 13–14.

24 Id. at 14.

25 Fed. Republic of Germany v. Philipp, 141 S. Ct. at 709–10.

26 Id. at 709.

27 Id. at 710.

28 Id.

29 Id.

30 Id.

31 Id. at 711 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)).

32 Id. (citing 22 U.S.C. § 2370(e)(2)).

33 Id.

34 Id.

35 Id. at 712–13.

36 Id. at 713.

37 Id.

38 Id.

39 Id. at 713–14.

40 Id. at 714.

41 Id..

42 Id. at 715.

43 Id.

44 Philipp v. Fed. Republic of Germany, 894 F.3d 406, 415–16 (D.C. Cir. 2018).

45 Republic of Hungary v. Simon, 141 S. Ct. 187 (2020).

46 Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 376, 404–05 (2019).

47 Brief for Petitioners at 25–26, Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (No. 18-1447) [hereinafter Simon Petitioners’ Brief].

48 Philipp Petitioners’ Brief, supra note, 20, at 45–47.

49 Philipp U.S. Amicus Brief, supra note 22, at 30; Brief for the United States as Amicus Curiae Supporting Petitioners at 17, Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (No. 18-1447).

50 E.g., Simon Petitioners’ Brief, supra note 47, at 16–17, 29–31 (citing 28 U.S.C. § 1606).

51 Brief for Respondents at 24, Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (No. 18-1447).

52 Republic of Hungary v. Simon, 141 S. Ct. at 691.

53 Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 858–59 (7th Cir. 2015); Brief for the United States as Amicus Curiae Supporting Petitioners on Petition for a Writ of Certiorari at 10, Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (No. 18-1447).

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