Federal Republic of Germany v. Philipp
592 U. S. ____ (2021) (2021)
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Rule of Law:
The Foreign Sovereign Immunities Act's (FSIA) exception for 'rights in property taken in violation of international law' refers to violations of the international law of expropriation, which incorporates the 'domestic takings rule,' meaning a sovereign's taking of its own nationals' property is generally a domestic affair and does not violate international law.
Facts:
- During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased a collection of medieval relics known as the Welfenschatz from the Duke of Brunswick.
- After the Nazi government rose to power, Hermann Goering, Adolf Hitler’s deputy and the Prime Minister of Prussia, became interested in the Welfenschatz.
- In 1935, Goering allegedly coerced the consortium into selling the remaining pieces of the Welfenschatz to Prussia for approximately one-third of their value, leading two of the consortium members to flee and the third to die shortly after.
- After World War II, the United States took possession of the Welfenschatz during the occupation of Nazi Germany and eventually turned the collection over to the Federal Republic of Germany.
- For nearly 60 years, the Welfenschatz has been maintained by the Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the Federal Republic of Germany, and displayed at a museum in Berlin.
- Respondents, heirs of the original consortium members, first approached SPK claiming the sale was unlawful and sought compensation, submitting their claim to the German Advisory Commission for resolution.
- The Advisory Commission, established under the Washington Conference Principles on Nazi-Confiscated Art, investigated and concluded that the sale occurred at a fair price without duress.
Procedural Posture:
- Respondents (the heirs) filed several common law property claims in United States District Court against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (SPK).
- Germany moved to dismiss the case, arguing it was immune from suit under the Foreign Sovereign Immunities Act (FSIA), contending the claims did not fall within the expropriation exception.
- The District Court denied Germany’s motion to dismiss.
- Germany appealed the District Court's denial of its motion to dismiss to the United States Court of Appeals for the District of Columbia Circuit.
- The D.C. Circuit affirmed the District Court's decision, agreeing with the heirs that genocide perpetrated by a state against its own nationals is a violation of international law.
- The D.C. Circuit declined Germany’s request for en banc review, with Judge Katsas dissenting.
- Germany (petitioners) then filed a petition for a writ of certiorari, which the Supreme Court granted.
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Issue:
Does the Foreign Sovereign Immunities Act's exception to sovereign immunity for "rights in property taken in violation of international law" apply to a foreign state's alleged taking of property from its own nationals when the taking is also alleged to constitute an act of genocide?
Opinions:
Majority - Chief Justice Roberts
No, the FSIA's expropriation exception does not apply to a foreign state's alleged taking of property from its own nationals, even when associated with human rights abuses like genocide, because the exception incorporates the domestic takings rule of international expropriation law. The Court reasoned that international law has historically concerned relations among states, not between states and their own nationals. The "domestic takings rule" has deep roots in international law and U.S. foreign policy, enduring even with the rise of human rights law. The Court traced the language of the FSIA's expropriation exception to the Second Hickenlooper Amendment, which was understood to address claims against foreign nations for expropriation of American-owned property, not domestic takings. The text of the FSIA exception itself, with its repeated emphasis on "property and property-related rights," most sensibly references the international law governing property rights, not broader human rights law like the law of genocide. To interpret the exception otherwise would disregard the long-standing international law principle that a state is not deprived of immunity for serious human rights violations and would undermine the FSIA's express goal of codifying the restrictive theory of sovereign immunity. Such a broad interpretation would also circumvent the specific, limited exceptions Congress created elsewhere in the FSIA for human rights violations, thereby transforming the expropriation exception into an "all-purpose jurisdictional hook" for such claims, which the Court rejected in Saudi Arabia v. Nelson. The Court also rejected the heirs' counterarguments regarding the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act and other Holocaust restitution statutes, stating these acts do not broaden the scope of the FSIA's expropriation exception or speak to sovereign immunity.
Analysis:
This decision significantly narrows the scope of the FSIA's expropriation exception, reinforcing the principle that U.S. courts should be cautious in asserting jurisdiction over foreign sovereigns, particularly for actions taken against their own nationals within their own borders. It solidifies the distinction between international law of expropriation and international human rights law for the purpose of sovereign immunity. The ruling emphasizes judicial deference to Congress in defining exceptions to sovereign immunity, particularly concerning sensitive international relations, and prevents the expropriation exception from becoming a general avenue for human rights claims.
