Federal Republic of Germany v. Philipp

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL REPUBLIC OF GERMANY ET AL. v. PHILIPP
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 19–351. Argued December 7, 2020—Decided February 3, 2021
Respondents are the heirs of German Jewish art dealers who formed a
consortium during the waning years of the Weimar Republic to pur-
chase a collection of medieval relics known as the Welfenschatz. The
heirs allege that when the Nazi government rose to power, it unlaw-
fully 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. After unsuc-
cessfully seeking compensation in Germany, the heirs brought several
common law property claims in United States District Court against
Germany and SPK (collectively Germany). Germany moved to dis-
miss, arguing that it was immune from suit under the Foreign Sover-
eign Immunities Act. As relevant, Germany asserted that the heirs’
claims did not fall within the FSIA’s exception to sovereign immunity
for “property taken in violation of international law,” 28 U. S. C.
§1605(a)(3), because a sovereign’s taking of its own nationals’ property
is not unlawful under the international law of expropriation. The heirs
countered that the exception did apply because Germany’s purchase of
the Welfenschatz was an act of genocide, and the relics were therefore
taken in violation of international human rights law. The District
Court denied Germany’s motion to dismiss, and the D. C. Circuit af-
firmed.
Held: 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. Pp. 4–16.
2 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Syllabus
(a) The heirs contend that their claims fall within the FSIA’s excep-
tion 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 geno-
cide, and genocide is a violation of international human rights law.
Germany argues that the relevant international law is not the law of
genocide but the international law of expropriation, under which a for-
eign sovereign’s taking of its own nationals’ property remains a domes-
tic affair. Pp. 4–13.
(1) The “domestic takings rule” invoked by Germany derives from
the premise that international law customarily concerns relations
among states, not between states and individuals. Historically, a sov-
ereign’s taking of a foreign national’s property implicated interna-
tional law because it constituted an injury to the state of the alien’s
nationality. A domestic taking, by contrast, did not interfere with re-
lations among states. This domestic takings rule endured even as a
growing body of human rights law made states’ treatment of individual
human beings a matter of international concern. And those who criti-
cized the treatment of property rights under international law did so
on the ground that all sovereign takings, not just domestic takings,
were outside the scope of that law. This dispute over the existence of
international law constraints on sovereign takings eventually reached
the Court in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 436.
Hesitant to delve into this controversy, the Court instead invoked the
act of state doctrine. In response, Congress passed the Second Hick-
enlooper Amendment to the Foreign Assistance Act of 1964, which pro-
hibits United States 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 . . . international law.” 22 U. S. C.
§2370(e)(2). Courts and commentators understood the Amendment to
permit adjudication of claims Sabbatino had avoided deciding, i.e.,
claims against other countries for expropriation of American-owned
property. But nothing in the Amendment purported to alter any rule
of international law, including the domestic takings rule. Congress
used nearly identical language when it crafted the FSIA’s expropria-
tion exception twelve years later. Based on this historical and legal
background, courts reached a “consensus” that the expropriation ex-
ception’s “reference to ‘violation of international law’ does not cover
expropriations of property belonging to a country’s own nationals.” Re-
public of Austria v. Altmann, 541 U. S. 677, 713 (BREYER, J., concur-
ring). Pp. 5–8.
(2) The heirs concede that the international law of expropriation
retained the domestic takings rule at the time of the FSIA’s enactment,
but they read “rights in property taken in violation of international
Cite as: 592 U. S. ____ (2021) 3
Syllabus
law” to incorporate any international norm, including international
human rights law, rather than merely the international law of expro-
priation. The text of the FSIA’s expropriation exception, however, sup-
ports Germany’s reading. The exception places repeated emphasis on
property and property-related rights, while injuries and acts associ-
ated with violations of human rights law, such as genocide, are notably
lacking—a remarkable omission if the provision was intended to pro-
vide relief for atrocities such as the Holocaust. A statutory phrase con-
cerning property rights most sensibly references the international law
governing property rights, rather than the law of genocide. The heirs’
position would arguably force courts themselves to violate interna-
tional law not only by ignoring the domestic takings rule, but also by
derogating international law’s preservation of sovereign immunity for
violations of human rights law. Germany’s interpretation of the ex-
ception is also more consistent with the FSIA’s express goal of codify-
ing the restrictive theory of sovereign immunity, 28 U. S. C. §1602, un-
der which immunity extends to a sovereign’s public, but not private,
acts. It would destroy the Act’s distinction between private and public
acts were the Court to subject all manner of sovereign public acts to
judicial scrutiny under the FSIA by transforming the expropriation ex-
ception into an all-purpose jurisdictional hook for adjudicating human
rights violations. Pp. 8–12.
(3) Other FSIA provisions confirm Germany’s position. The heirs’
approach would circumvent the reticulated boundaries Congress
placed in the FSIA with regard to bringing claims asserting human
rights violations. One FSIA exception, for example, provides jurisdic-
tion over claims “in which money damages are sought against a foreign
state for personal injury or death, or damage to or loss of property,”
but only where the relevant conduct “occurr[ed] in the United States.”
§1605(a)(5). And the FSIA’s terrorism exception eliminates sovereign
immunity for state sponsors of terrorism, but only for certain human
rights claims, brought by certain victims, against certain defendants.
§§1605A(a),(h). Such restrictions would be of little consequence if hu-
man rights abuses could be packaged as violations of property rights
and thereby brought within the expropriation exception. Pp. 12–13.
(b) The heirs’ counterarguments cannot overcome the text, context,
and history of the expropriation exception. They claim that the 2016
Foreign Cultural Exchange Jurisdictional Immunity Clarification
Act—which amends the FSIA to explain that participation in specified
“art exhibition activities” does not qualify as “commercial activity” un-
der the expropriation exception, §1605(h)—demonstrates that Con-
gress anticipated that Nazi-era claims could be adjudicated under the
exception. Congress’s effort to preserve sovereign immunity in a nar-
4 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Syllabus
row, particularized context, however, does not support the broad elim-
ination of sovereign immunity across all areas of law. Other statutes
aimed at promoting restitution to Holocaust victims, on which the
heirs rely, generally encourage redressing those injuries outside of
public court systems and do not speak to sovereign immunity. See,
e.g., Holocaust Expropriated Art Recovery Act of 2016, 130 Stat. 1524.
Pp. 14–15.
(c) This Court does not address Germany’s argument that the Dis-
trict Court was obligated to abstain from deciding the case on interna-
tional comity grounds or the heirs’ alternative argument that the sale
of the Welfenschatz is not subject to the domestic takings rule because
the consortium members were not German nationals at the time of the
transaction. Pp. 15–16.
894 F. 3d. 406, vacated and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court.
Cite as: 592 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–351
_________________
FEDERAL REPUBLIC OF GERMANY, ET AL.,
PETITIONERS v. ALAN PHILIPP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 3, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Foreign Sovereign Immunities Act provides that for-
eign nations are presumptively immune from the jurisdic-
tion of United States courts. The statute, however, sets
forth several specific exceptions. One such exception pro-
vides that a sovereign does not enjoy immunity in any case
“in which rights in property taken in violation of interna-
tional law are in issue.” 28 U. S. C. §1605(a)(3). The ques-
tion presented is whether a country’s alleged taking of prop-
erty from its own nationals falls within this exception.
I
This case concerns several dozen medieval relics and de-
votional objects known as the Welfenschatz. The treasure
(“schatz”) of the German Welf dynasty, the pieces date back
to the early days of the Holy Roman Empire and occupy a
unique position in German history and culture. The collec-
tion was assembled within Germany’s Brunswick Cathe-
dral over the course of several centuries, before being
moved to a Hanoverian chapel in 1671 and later to Switzer-
land for safekeeping in the wake of World War I.
2 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
During the waning years of the Weimar Republic, a con-
sortium of three art firms owned by Jewish residents of
Frankfurt purchased the Welfenschatz from the Duke of
Brunswick. By 1931, the consortium had sold about half of
the collection’s pieces to museums and individuals in Eu-
rope and the United States, including many to the Cleve-
land Museum of Art, where they reside today.
Conditions facing the consortium changed dramatically
after the collapse of the German economy and the rise of the
Nazi government. After ascending to power, Hermann Goe-
ring—Adolf Hitler’s deputy and the Prime Minister of Prus-
sia—became interested in the remainder of the Welfen-
schatz. The complaint alleges that he employed a
combination of political persecution and physical threats to
coerce the consortium into selling the remaining pieces to
Prussia in 1935 for approximately one-third of their value.
Two of the consortium members fled the country following
the sale, and the third died in Germany shortly thereafter.
The United States took possession of the Welfenschatz in
the course of the occupation of Nazi Germany at the end of
the war, eventually turning the collection over to the
Federal Republic of Germany. For nearly 60 years, the
treasure has been maintained by Stiftung Preussischer
Kulturbesitz (SPK)—the Prussian Cultural Heritage Foun-
dation—and it is now displayed at a museum in Berlin.
SPK is an instrumentality of the Federal Republic.
Respondents are two United States citizens and a citizen
of the United Kingdom who trace their lineages back to the
three members of the consortium. The heirs first ap-
proached SPK claiming that the sale of the Welfenschatz to
the Prussian Government was unlawful. SPK conducted its
own investigation of the sale and determined that the
transaction occurred at a fair market price without coer-
cion.
In 2014, the parties agreed to submit the claim to the
German Advisory Commission for the Return of Cultural
Cite as: 592 U. S. ____ (2021) 3
Opinion of the Court
Property Seized as a Result of Nazi Persecution, Especially
Jewish Property. Germany established the Advisory Com-
mission under the Washington Conference Principles on
Nazi-Confiscated Art, an initiative spearheaded by the
United States to encourage the development of new mecha-
nisms for resolving Nazi-era claims. See Brief for United
States as Amicus Curiae 4. After hearing from expert wit-
nesses and reviewing documentary evidence, the Commis-
sion likewise concluded that the sale had occurred at a fair
price without duress.
Disappointed by the proceedings in Germany, the heirs
filed suit in Federal District Court in Washington, D. C.
They brought several common law property claims against
Germany and SPK, seeking $250 million in compensation.
Petitioners SPK and the Federal Republic of Germany—col-
lectively Germany—moved to dismiss the case. Relevant
here, Germany argued that it was immune from suit be-
cause the heirs’ claims did not fall within the FSIA’s excep-
tion to immunity for “property taken in violation of interna-
tional law.” See 28 U. S. C. §1605(a)(3); see also §1603(a)
(defining “foreign state” to include “an agency or instrumen-
tality of a foreign state”). In doing so, Germany reasoned
that the purchase of the Welfenschatz could not have vio-
lated international law because a sovereign’s taking of its
own nationals’ property is not unlawful under the interna-
tional law of expropriation. The heirs responded that the
exception did apply because Germany’s purchase of the
Welfenschatz was an act of genocide and the taking there-
fore violated the international law of genocide.
The District Court denied Germany’s motion, 248
F. Supp. 3d 59, 70–74 (DC 2017), and a panel of the D. C.
Circuit affirmed, 894 F. 3d 406 (2018). The panel agreed
with the heirs that the exception for property taken in vio-
lation of international law was satisfied because “genocide
perpetrated by a state even against its own nationals is a
4 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
violation of international law.” Id., at 410–411 (quoting Si-
mon v. Republic of Hungary, 812 F. 3d 127, 145 (CADC
2016); alterations omitted). The D. C. Circuit declined Ger-
many’s request for en banc review. 925 F. 3d 1349 (2019)
(per curiam).
Judge Katsas dissented from the denial of rehearing en
banc. In his view, the majority’s analysis erroneously
“ma[de] the district court sit as a war crimes tribunal to ad-
judicate claims of genocide,” while “clear[ing] the way for a
wide range of litigation against foreign sovereigns for public
acts committed within their own territories.” Id., at 1350.
We granted certiorari. 591 U. S. ___ (2020).
II
Enacted in 1976, the Foreign Sovereign Immunities Act
supplies the ground rules for “obtaining jurisdiction over a
foreign state in the courts of this country.” Argentine Re-
public v. Amerada Hess Shipping Corp., 488 U. S. 428, 443
(1989). The Act creates a baseline presumption of immun-
ity from suit. §1604. “[U]nless a specified exception ap-
plies, a federal court lacks subject-matter jurisdiction over
a claim against a foreign state.” Saudi Arabia v. Nelson,
507 U. S. 349, 355 (1993).
The heirs contend that their claims fall within the excep-
tion for “property taken in violation of international law,”
§1605(a)(3), because the coerced sale of the Welfenschatz,
their property, constituted an act of genocide, and genocide
is a violation of international human rights law. Germany
argues that the exception is inapplicable because the rele-
vant international law is the international law of prop-
erty—not the law of genocide—and under the international
law of property a foreign sovereign’s taking of its own na-
tionals’ property remains a domestic affair. This “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. See Bolivarian Republic of
Cite as: 592 U. S. ____ (2021) 5
Opinion of the Court
Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S.
___, ___ (2017) (slip op., at 10) (citing Restatement (Third)
of Foreign Relations Law of the United States §712 (1986)
(Restatement (Third))).
A
Known at the founding as the “law of nations,” what we
now refer to as international law customarily concerns re-
lations among sovereign states, not relations between
states and individuals. See Banco Nacional de Cuba v. Sab-
batino, 376 U. S. 398, 422 (1964) (“The traditional view of
international law is that it establishes substantive princi-
ples for determining whether one country has wronged an-
other.”).
The domestic takings rule invoked by Germany derives
from this premise. Historically, a sovereign’s taking of a
foreigner’s property, like any injury of a foreign national,
implicated the international legal system because it “con-
stituted an injury to the state of the alien’s nationality.”
Bradley & Goldsmith, Customary International Law as
Federal Common Law: A Critique of the Modern Position,
110 Harv. L. Rev. 815, 831, n. 106 (1997); see S. Friedman,
Expropriation in International Law 5, 139 (1953). Such
mistreatment was an affront to the sovereign, and “there-
fore the alien’s state alone, and not the individual, could in-
voke the remedies of international law.” Bradley, supra, at
831, n. 106. A domestic taking by contrast did not interfere
with relations among states. See E. de Vattel, 3 The Law
of Nations §81, p. 138 (C. Fenwick transl. 1916) (“Even the
property of individuals, taken as a whole, is to be regarded
as the property of the Nation with respect to other Na-
tions.”); see also United States v. Belmont, 301 U. S. 324,
332 (1937) (“What another country has done in the way of
taking over property of its nationals . . . is not a matter for
judicial consideration here.”).
6 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
The domestic takings rule has deep roots not only in in-
ternational law but also in United States foreign policy.
Secretary of State Cordell Hull most famously expressed
the principle in a 1938 letter to the Mexican Ambassador
following that country’s nationalization of American oil
fields. The Secretary conceded “the right of a foreign gov-
ernment to treat its own nationals in this fashion if it so
desires. This is a matter of domestic concern.” Letter from
C. Hull to C. Nájera (July 21, 1938), reprinted in 5 Foreign
Relations of the United States Diplomatic Papers 677
(1956). The United States, however, could not “accept the
idea” that “these plans can be carried forward at the ex-
pense of our citizens.” Ibid.The domestic takings rule endured even as international
law increasingly came to be seen as constraining how states
interacted not just with other states but also with individ-
uals, including their own citizens. The United Nations Uni-
versal Declaration of Human Rights and Convention on the
Prevention of Genocide became part of a growing body of
human rights law that made “how a state treats individual
human beings . . . a matter of international concern.” Brad-
ley, supra, at 832 (quoting Restatement (Third), pt. VII, In-
troductory Note, at 144–145). These human rights docu-
ments were silent, however, on the subject of property
rights. See Friedman, supra, at 107. International tribu-
nals therefore continued to maintain that international law
governed “confiscation of the property of foreigners,” but
“measures taken by a State with respect to the property of
its own nationals are not subject to these principles.” Gud-
mundsson v. Iceland, Appl. No. 511/59, 1960 Y. B. Eur.
Conv. on H. R. 394, 423–424 (decision of the European Com-
mission on Human Rights).
Some criticized the treatment of property rights under in-
ternational law, but they did so on the ground that all sov-
ereign takings were outside the scope of international law,
Cite as: 592 U. S. ____ (2021) 7
Opinion of the Court
not just domestic takings. In the 1950s and 1960s, a grow-
ing chorus of newly independent states, particularly in
Latin America, resisted any foreign restraint on their abil-
ity to nationalize property. See Young, The Story of Banco
Nacional de Cuba v. Sabbatino, in Federal Courts Stories
422–423 (V. Jackson & J. Resnik eds. 2010). Put differ-
ently, states and scholars disagreed over whether interna-
tional law provided a remedy for a sovereign’s interference
with anyone’s property rights, not whether domestic tak-
ings were outside the purview of international law. That
principle was beyond debate.
We confronted this dispute over the existence of interna-
tional law constraints on sovereign takings in Sabbatino,
where we were asked to decide claims arising out of Cuba’s
nationalization of American sugar interests in 1960. 376
U. S., at 403. This Court observed that there were “few if
any issues in international law today on which opinion
seems to be so divided as the limitations on a state’s power
to expropriate the property of aliens.” Id., at 428 (emphasis
added). Hesitant to delve into this controversy, we instead
invoked the act of state doctrine, which prevents United
States courts from determining the validity of the public
acts of a foreign sovereign. Id., at 436.
Congress did not applaud the Court’s reticence. Within
months of Sabbatino, it passed the Second Hickenlooper
Amendment to the Foreign Assistance Act of 1964. The
Amendment prohibits United States courts from applying
the act of state doctrine where a “right[ ] to property is as-
serted” based upon a “taking . . . by an act of that state in
violation of the principles of international law.” 22 U. S. C.
§2370(e)(2). Courts and commentators understood the
Amendment to permit adjudication of claims the Sabbatino
decision had avoided—claims against foreign nations for ex-
propriation of American-owned property. But nothing in
the Amendment purported to alter any rule of international
law, including the domestic takings rule. See F. Palicio y
8 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (SDNY
1966) (interpreting the Hickenlooper Amendment to dis-
place Sabbatino but dismissing the suit on the ground that
“confiscations by a state of the property of its own nationals,
no matter how flagrant . . . , do not constitute violations of
international law”), summarily aff ’d, 375 F. 2d 1011 (CA2
1967); Banco Nacional de Cuba v. Farr, 383 F. 2d 166, 173–
176 (CA2 1967); Restatement (Second) of Foreign Relations
Law of the United States §185 (1965) (Restatement (Sec-
ond)); Lillich, The Proper Role of Domestic Courts in the
International Legal Order, 11 Va. J. Int’l L. 9, 29, 34 (1970).
Congress used language nearly identical to that of the
Second Hickenlooper Amendment 12 years later in crafting
the FSIA’s expropriation exception. As noted, it provides
that United States courts may exercise jurisdiction over a
foreign sovereign in any case “in which rights in property
taken in violation of international law are in issue.” 28
U. S. C. §1605(a)(3).
Based on this historical and legal background, courts ar-
rived at a “consensus” that the expropriation exception’s
“reference to ‘violation of international law’ does not cover
expropriations of property belonging to a country’s own na-
tionals.” Republic of Austria v. Altmann, 541 U. S. 677, 713
(2004) (BREYER, J., concurring).
B
The heirs urge us to change course. They read “rights in
property taken in violation of international law” not as an
invocation of the international law governing property
rights, but as a broad incorporation of any international
norm. Focusing on human rights law, the heirs rely on the
United Nations Convention on Genocide, which defines
genocide as “deliberately inflicting on [a] group conditions
of life calculated to bring about its physical destruction in
whole or in part.” Convention on the Prevention and Pun-
ishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 78
Cite as: 592 U. S. ____ (2021) 9
Opinion of the Court
U. N. T. S. 277, 280. According to the heirs, the forced sale
of their ancestors’ art constituted an act of genocide because
the confiscation of property was one of the conditions the
Third Reich inflicted on the Jewish population to bring
about their destruction.
We need not decide whether the sale of the consortium’s
property was an act of genocide, because the expropriation
exception is best read as referencing the international law
of expropriation rather than of human rights. We do not
look to the law of genocide to determine if we have jurisdic-
tion over the heirs’ common law property claims. We look
to the law of property.
And in 1976, the state of that body of law was clear: A
“taking of property” could be “wrongful under international
law” only where a state deprived “an alien” of property. Re-
statement (Second) §185; see also Permanent Mission of In-
dia to United Nations v. City of New York, 551 U. S. 193,
199–200 (2007) (noting our consistent practice of interpret-
ing the FSIA in keeping with “international law at the time
of the FSIA’s enactment” and looking to the contemporary
Restatement for guidance). As explained above, this rule
survived the advent of modern human rights law, including
the United Nations Convention on Genocide. Congress
drafted the expropriation exception and its predecessor, the
Hickenlooper Amendment, against that legal and historical
backdrop. See Taggart v. Lorenzen, 587 U. S. ___, ___
(2019) (slip op., at 5).
The heirs concede that at the time of the FSIA’s enact-
ment the international law of expropriation retained the do-
mestic takings rule. See Restatement (Second) §192. But
they argue that Congress captured all of international law
in the exception—not just the international law of expropri-
ation—and that other areas of international law do not
shield a sovereign’s actions against its own nationals. In
support of that assertion, they note that the exception con-
cerns “property taken in violation of international law”—
10 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
not “property takings in violation of international law.” Tr.
of Oral Arg. 70. This distinction between “takings” and
“taken,” they say, is the difference between incorporating
the specific international law governing takings of property
and incorporating international law writ large. Ibid.
We would not place so much weight on a gerund. The text
of the expropriation exception as a whole supports Ger-
many’s reading. In its entirety the clause provides that
United States courts may exercise jurisdiction over a for-
eign sovereign in any case
“in which rights in property taken in violation of inter-
national law are in issue and that property or any prop-
erty exchanged for such property is present in the
United States in connection with a commercial activity
carried on in the United States by the foreign state; or
that property or any property exchanged for such prop-
erty is owned or operated by an agency or instrumen-
tality of the foreign state and that agency or instru-
mentality is engaged in a commercial activity in the
United States.” 28 U. S. C. §1605(a)(3).
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 in-
ternational law governing property rights, rather than the
law of genocide.
What is more, the heirs’ interpretation of the phrase
“taken in violation of international law” is not limited to vi-
olations of the law of genocide but extends to any human
rights abuse. Their construction would arguably force
courts themselves to violate international law, not only ig-
noring the domestic takings rule but also derogating inter-
Cite as: 592 U. S. ____ (2021) 11
Opinion of the Court
national law’s preservation of sovereign immunity for vio-
lations of human rights law. As the International Court of
Justice recently ruled when considering claims brought by
descendants of citizens of Nazi-occupied countries, “a State
is not deprived of immunity by reason of the fact that it is
accused of serious violations of international human rights
law.” Jurisdictional Immunities of the State (Germany v.
Italy), 2012 I. C. J. 99, 139 (Judgt. of Feb. 3); see also Brad-
ley & Goldsmith, Foreign Sovereign Immunity, Individual
Officials, and Human Rights Litigation, 13 Green Bag 2d 9,
21 (2009). Respondents would overturn that rule whenever
a violation of international human rights law is accompa-
nied by a taking of property.
Germany’s interpretation of the exception is also more
consistent with the FSIA’s express goal of codifying the re-
strictive theory of sovereign immunity. §1602. Under the
absolute or classical theory of sovereign immunity, foreign
sovereigns are categorically immune from suit. Altmann,
541 U. S., at 690. Under the restrictive view, by contrast,
immunity extends to a sovereign’s public but not its private
acts. Ibid. Most of the FSIA’s exceptions, such as the ex-
ception for “commercial activity carried on in the United
States,” comport with the overarching framework of the re-
strictive theory. §1605(a)(2).
It is true that the expropriation exception, because it per-
mits the exercise of jurisdiction over some public acts of ex-
propriation, goes beyond even the restrictive view. In this
way, the exception is unique; no other country has adopted
a comparable limitation on sovereign immunity. Restate-
ment (Fourth) of Foreign Relations Law of the United
States §455, Reporters’ Note 15 (2017).
History and context explain this nonconformity. As
events such as Secretary Hull’s letter and the Second Hick-
enlooper Amendment demonstrate, the United States has
long sought to protect the property of its citizens abroad as
12 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
part of a defense of America’s free enterprise system. Sab-
batino, 376 U. S., at 430.
Given that the FSIA “largely codifies” the restrictive the-
ory, however, we take seriously the Act’s general effort to
preserve a dichotomy between private and public acts. Nel-
son, 507 U. S., at 359 (internal quotation marks omitted).
It would destroy that distinction were we to subject all man-
ner 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. See Helmerich, 581 U. S., at ___ (slip op.,
at 9) (rejecting the suggestion that Congress intended the
expropriation exception to operate as a “radical departure”
from the “basic principles” of the restrictive theory).
C
Other provisions of the FSIA confirm Germany’s position.
The heirs’ approach, for example, would circumvent the re-
ticulated boundaries Congress placed in the FSIA with re-
gard to human rights violations. Where Congress did tar-
get injuries associated with such acts, including torture or
death, it did so explicitly and with precision. The noncom-
mercial tort exception provides jurisdiction over claims “in
which money damages are sought against a foreign state for
personal injury or death, or damage to or loss of property,”
but only where the relevant conduct “occurr[ed] in the
United States.” §1605(a)(5). Similarly, the terrorism ex-
ception eliminates sovereign immunity for state sponsors of
terrorism but only for certain human rights claims, brought
by certain victims, against certain defendants. §§1605A(a),
(h).
These restrictions would be of little consequence if hu-
man rights abuses could be packaged as violations of prop-
erty 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
Cite as: 592 U. S. ____ (2021) 13
Opinion of the Court
rights violations to be especially deserving of redress only
when accompanied by infringement of property rights. We
have previously rejected efforts to insert modern human
rights law into FSIA exceptions ill suited to the task. Nel-
son, 507 U. S., at 361 (commercial activity exception does
not encompass claims that foreign state illegally detained
and tortured United States citizen, “however monstrous
such abuse undoubtedly may be”). We do so again today.
We have recognized that “ ‘United States law governs do-
mestically but does not rule the world.’ ” Kiobel v. Royal
Dutch Petroleum Co., 569 U. S. 108, 115 (2013) (quoting Mi-
crosoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007)). We
interpret the FSIA as we do other statutes affecting inter-
national relations: to avoid, where possible, “producing fric-
tion in our relations with [other] nations and leading some
to reciprocate by granting their courts permission to em-
broil the United States in expensive and difficult litigation.”
Helmerich, 581 U. S., at ___ (slip op., at 12) (internal quota-
tion marks omitted); RJR Nabisco, Inc. v. European Com-
munity, 579 U. S. ___, ___–___ (2016) (slip op., at 7–8) (in-
terpreting civil Racketeer Influenced and Corrupt
Organizations Act “to avoid the international discord that
can result when U. S. law is applied to conduct in foreign
countries”); Kiobel, 569 U. S., at 116 (interpreting Alien
Tort Statute so as not to “adopt an interpretation of U. S.
law that carries foreign policy consequences not clearly in-
tended by the political branches”).
As a Nation, we would be surprised—and might even in-
itiate 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 com-
mitted by the United States Government years ago. There
is no reason to anticipate that Germany’s reaction would be
any different were American courts to exercise the jurisdic-
tion claimed in this case.
14 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
III
The heirs offer several counterarguments, but none can
overcome the text, context, and history of the expropriation
exception.
First, the heirs rely on the 2016 Foreign Cultural Ex-
change Jurisdictional Immunity Clarification Act. The Act
amends the FSIA to explain that participation in specified
“art exhibition activities” does not qualify as “commercial
activity” within the meaning of the expropriation exception.
28 U. S. C. §1605(h). This clarification responded to deci-
sions of federal courts holding to the contrary, see, e.g.,
Malewicz v. Amsterdam, 362 F. Supp. 2d 298, 313–315 (DC
2005), and enables foreign states to loan art to American
museums without fear that the work’s presence in the
United States will subject them to litigation here. The pro-
vision, however, does not apply to claims brought against
Germany arising out of the period from January 1933
through May 1945. §§1605(h)(2), (3). According to the
heirs, this clarification of the expropriation exception shows
that Congress anticipated Nazi-era claims could be adjudi-
cated by way of that exception.
We agree with the heirs, but only to a limited extent.
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. See, e.g., Alt-
mann, 541 U. S., at 680–682 (claim concerning Austrian
taking of Czechoslovakian national’s art brought under the
expropriation exception). As for the heirs’ suggestion that
the Clarification Act demonstrates that Congress meant to
abrogate immunity for any Nazi-era claim, however, we do
not interpret Congress’s effort to preserve sovereign im-
munity in a narrow, particularized context—art shows—as
supporting the broad elimination of sovereign immunity
across all areas of law. The Clarification Act did not pur-
port to amend the critical phrase here—“taken in violation
of international law”—and we will not construe it to do so.
Cite as: 592 U. S. ____ (2021) 15
Opinion of the Court
The heirs also rely on other statutes aimed at promoting
restitution to the victims of the Holocaust. The Acts include
the Holocaust Victims Redress Act of 1998, 112 Stat. 15; the
Holocaust Expropriated Art Recovery Act of 2016 (HEAR
Act), 130 Stat. 1524; and the Justice for Uncompensated
Survivors Today (JUST) Act of 2017, Pub. L. 115–171, 132
Stat. 1288. These laws, the heirs suggest, demonstrate
Congress’s desire for American courts to hear disputes
about Holocaust-era property claims.
The statutes do promote restitution for the victims of the
Holocaust, but they generally encourage redressing those
injuries outside of public court systems. The HEAR Act, for
example, states that “the use of alternative dispute resolu-
tion” mechanisms will “yield just and fair resolutions in a
more efficient and predictable manner” than litigation in
court. §2(8), 130 Stat. 1525. Germany has adopted just
such an alternative mechanism, the Advisory Commission,
and the heirs availed themselves of that opportunity to re-
solve their claims. Ibid. See also Brief for Petitioners 5
(“[T]he German government has provided roughly $100 bil-
lion (in today’s dollars) to compensate Holocaust survivors
and other victims of the Nazi era.”).
These laws do not speak to sovereign immunity. That is
the province of the FSIA, which provides the carefully con-
structed framework necessary for addressing an issue of
such international concern. The heirs have not shown that
the FSIA allows them to bring their claims against Ger-
many. We cannot permit them to bypass its design.
IV
We hold that the phrase “rights in property taken in vio-
lation of international law,” as used in the FSIA’s expropri-
ation exception, refers to violations of the international law
of expropriation and thereby incorporates the domestic tak-
ings rule.
We do not address Germany’s argument that the District
16 FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
Court was obligated to abstain from deciding the case on
international comity grounds. Nor do we consider an alter-
native argument noted by the heirs: that the sale of the
Welfenschatz is not subject to the domestic takings rule be-
cause the consortium members were not German nationals
at the time of the transaction. See Brief for Respondents
27–28; but see Brief for Petitioners 19, n. 7 (claiming that
the heirs forfeited this argument). The Court of Appeals
should direct the District Court to consider this argument,
including whether it was adequately preserved below.
The judgment of the Court of Appeals for the D. C. Circuit
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.