Libertatem Magazine

Certiorari To United States Court of Appeals for District of Columbia Circuit

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The Nazi Government unlawfully coerced the consortium to sell the collection of medieval relics known as Welfenschatz to Prussia for a third of its value. It unlawfully coerced the consortium into selling the collection to Prussia for a third of its value. The relics are currently maintained by the Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the Federal Republic of Germany, and displayed at a Berlin museum. Heirs of The German Art Dealers brought several common law properties claimed in United States District Court against Germany and SPK (collectively Germany).

Respondents Arguments

The counsel of the Respondents argued that their claims fall within the FSIA’s exception for cases involving “property taken in violation of international law,” §1605(a)(3)—a provision known as the expropriation exception— because the forced sale of the Welfenschatz constituted an act of genocide, and genocide is a violation of international human rights law.

The Expropriation Exception under Foreign Sovereign Immunities Act (FSIA) permits Plaintiffs to bring claims in United States federal courts where a foreign state takes property rights in violation of international law through an agency or instrumentality that is engaged in commercial activity in the United States.

Complainant’s Arguments

Germany argues that the relevant international law is not the law of genocide but the international law of expropriation, under which a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. The “domestic takings rule” invoked by Germany derives from the premise that international law customarily concerns relations among states, not between states and individuals.

Court’s Judgement

Chief Justice Roberts delivered the opinion of the Court. The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States Courts. The statute, however, sets forth several specific exceptions.

One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue. The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception.

Other provisions of the FSIA confirm Germany’s position.

The terrorism exception eliminates sovereign immunity for state sponsors of terrorism but only for certain human rights claims, brought by certain victims, against certain Defendants

These restrictions 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. And there is no reason to suppose Congress thought acts of genocide or other human rights violations to be especially deserving of redress only when accompanied by infringement of property rights.

The counsel for Respondents offered several counterarguments, but none could overcome the text, context, and history of the expropriation exception.

The Respondents relied on the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. The Act amended the FSIA to explain that participation in specified “art exhibition activities” did not qualify as commercial activity” within the meaning of the expropriation exception.

Claims concerning Nazi-era art takings could be brought under the expropriation exception where the claims involve the taking of a foreign national’s property.

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