US Supreme Court Rules Germany Entitled to State Immunity in the Nazi Art Case

In Federal Republic of Germany v. Philipp, 592 U. S. ____ (2021), the U.S. Supreme Court held that Germany had been entitled to State immunity in a suit seeking compensation for the forced selling of medieval art called the”Welfenschatz” through the rise of Nazi Germany. As stated by the Courta country’s alleged taking of property from its own nationals doesn’t collapse under Foreign Sovereign Immunities Act’s expropriation exception, which applies to”property obtained in violation of international law”

Facts of this Case

The respondents will be the heirs of German Jewish art dealers who made a consortium through the waning decades of the Weimar Republic to purchase an assortment of medieval relics called the Welfenschatz. The heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection into Prussia for a third of its value.

After unsuccessfully seeking compensation in Germany, the heirs brought several common law property asserts in U.S. District Court from Germany and SPK (together Germany). Germany proceeded to dismiss, asserting that it was immune from suit under the Foreign Sovereign Immunities Act (FSIA).  

The heirs contend that their claims fall within the exception for”property obtained in violation of international law,” since the coerced sale of the Welfenschatz, their property, constituted an act of genocide, and genocide is a violation of international human rights law. Meanwhile, Germany argues that the exception is inapplicable since the applicable global law is the international law of property–not the law of genocide–and below the international law of property that a foreign sovereign’s taking of its nationals’ property remains a domestic event. This”domestic takings rule” assumes that what a nation does to property belonging to its citizens within its borders is not the topic of international law. The District Court denied Germany’s motion to dismiss, and also the D.C. Circuit Court of Appeals affirmed.

Supreme Court’s Decision

It held that The phrase”rights in property taken in violation of international law,” as utilized in the FSIA’s expropriation exception, describes violations of the international law of expropriation and thereby comprises the domestic takings rule. Chief Justice John Roberts wrote on behalf of the unanimous Court.

As stated by the Supreme Court, the lower courts interpreted the expropriation exception also broadly. The Court also dismissed the respondents’ argument that the expropriation exception applied since the forced purchase of this Welfenschatz lacked the ban on genocide.

“We don’t decide whether the selling of this consortium’s land has been a act of genocide, since the expropriation exception is read as imitating the international law of expropriation rather than of human rights,” Chief Justice Roberts clarified. “We do not look to the law of genocide to find out whether we have jurisdiction within the heirs’ common law property claims. We look into the law of property” In further support, Roberts noted that the exception”places repeated emphasis on property and property-related rights, while injuries and acts we could connect with genocide are especially missing”

Citing Kiobel v Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013), Roberts highlighted that the Court has long recognized that”United States law governs domestically but doesn’t rule the planet.” Thus, the Court interpreted the FSIA as it does other statutes affecting global relations: to avoid, wherever possible,”producing friction in our relationships with [other] states and leading some to reciprocate by granting their courts permission to embroil the United States in costly and hard litigation.”

The Court also highlighted that a wide interpretation of the FSIA exception would invite suits against america in foreign courts.

As a Nation, we would be amazed –and might even initiate mutual action–if a court in Germany adjudicated claims by Americans they were entitled to countless millions of dollars due to human rights violations com- mitted by the United States Government years back. There’s absolutely no reason to expect that Germany’s response would be any different were American courts to exercise the authority claimed in this case.

The Supreme Court did not tackle Germany’s argument that the District Court was obligated to abstain from deciding the case with global comity motives or the heirs’ alternative argument that the purchase of this Welfenschatz is not subject to the domestic takings rule since the consortium members weren’t German nationals at the time of this trade.
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