Federal Republic of Germany v. Philipp

Summary

The Foreign Sovereign Immunities Act’s expropriation exception, 28 U. S. C. §1605(a)(3), incorporates the domestic takings rule, which recognizes that a foreign sovereign’s taking of its own nationals’ property is not a violation of international law.

Text

PRELIMINARY PRINT 
Volume 592 U. S. Part 1 
Pages 169–187 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
February 3, 2021 
REBECCA A. WOMELDORF 
reporter of decisions 
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OCTOBER TERM, 2020 169 
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 
purchase a collection of medieval relics known as the Welfenschatz. 
The heirs allege that when the Nazi government rose to power, 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. 
After unsuccessfully 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 dismiss, arguing that it was immune from suit under 
the Foreign Sovereign Immunities Act. As relevant, Germany asserted 
that the heirs' claims did not fall within the FSIA's exception to sover-
eign 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. Cir-
cuit affrmed. 
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. 175–187. 
(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-

170 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
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eign sovereign's taking of its own nationals' property remains a domes-
tic affair. Pp. 175–185. 
(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 sovereign's 
taking of a foreign national's property implicated international law be-
cause it constituted an injury to the state of the alien's nationality. A 
domestic taking, by contrast, did not interfere with relations 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 criticized the treat-
ment 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 doc-
trine. In response, Congress passed the Second Hickenlooper Amend-
ment to the Foreign Assistance Act of 1964, which prohibits 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, in-
cluding the domestic takings rule. Congress used nearly identical lan-
guage when it crafted the FSIA's expropriation exception twelve years 
later. Based on this historical and legal background, courts reached a 
“consensus” that the expropriation exception's “reference to `violation 
of international law' does not cover expropriations of property belong-
ing to a country's own nationals.” Republic of Austria v. Altmann, 
541 U. S. 677, 713 (Breyer , J., concurring). Pp. 176–180. 
(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 law” 
to incorporate any international norm, including international human 
rights law, rather than merely the international law of expropriation. 
The text of the FSIA's expropriation exception, however, supports Ger-
many's reading. The exception places repeated emphasis on property 
and property-related rights, while injuries and acts associated with vio-
lations of human rights law, such as genocide, are notably lacking—a 
remarkable omission if the provision was intended to provide relief for 
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atrocities such as the Holocaust. A statutory phrase concerning prop-
erty 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 international law not 
only by ignoring the domestic takings rule, but also by derogating inter-
national law's preservation of sovereign immunity for violations of 
human rights law. Germany's interpretation of the exception is also 
more consistent with the FSIA's express goal of codifying the restrictive 
theory of sovereign immunity, 28 U. S. C. § 1602, under 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 exception into an all-purpose ju-
risdictional hook for adjudicating human rights violations. Pp. 180–183. 
(3) Other FSIA provisions confrm Germany's position. The heirs' 
approach would circumvent the reticulated boundaries Congress placed 
in the FSIA with regard to bringing claims asserting human rights vio-
lations. One FSIA exception, for example, 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). 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 
human rights abuses could be packaged as violations of property rights 
and thereby brought within the expropriation exception. Pp. 183–185. 
(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 Clarifcation Act— 
which amends the FSIA to explain that participation in specifed “art 
exhibition activities” does not qualify as “commercial activity” under 
the expropriation exception, § 1605(h)—demonstrates that Congress an-
ticipated that Nazi-era claims could be adjudicated under the exception. 
Congress's effort to preserve sovereign immunity in a narrow, partic-
ularized context, however, does not support the broad elimination of 
sovereign immunity across all areas of law. Other statutes aimed at 
promoting restitution to Holocaust victims, on which the heirs rely, gen-
erally encourage redressing those injuries outside of public court sys-
tems and do not speak to sovereign immunity. See, e. g., Holocaust 
Expropriated Art Recovery Act of 2016, 130 Stat. 1524. Pp. 185–187. 
(c) This Court does not address Germany's argument that the District 
Court was obligated to abstain from deciding the case on international

172 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
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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. P. 187. 
894 F. 3d. 406, vacated and remanded. 
Roberts, C. J., delivered the opinion for a unanimous Court. 
Jonathan M. Freiman argued the cause for petitioners. 
With him on the briefs were Tadhg Dooley, Benjamin M. 
Daniels, and David R. Roth. 
Deputy Solicitor General Kneedler argued the cause for 
the United States as amicus curiae urging reversal. With 
him on the brief were Acting Solicitor General Wall, Sopan 
Joshi, Colleen E. Roh Sinzdak, Sharon Swingle, and Joshua 
K. Handell. 
Nicholas M. O'Donnell argued the cause for respondents. 
With him on the brief was Erika L. Todd.* 
*Briefs of amici curiae urging reversal were fled for Foreign Interna-
tional Law Scholars et al. by Lisa M. Geary; for Société Nationale SNCF 
SA by John B. Bellinger III, Sally L. Pei, and R. Reeves Anderson; 
and for Davis R. Robinson et al. by James H. Hulme and Timothy J. 
Feighery. 
Briefs of amici curiae urging affrmance were fled for the American 
Association of Jewish Lawyers and Jurists et al. by Arthur R. Traldi and 
Stephen R. Greenwald; for the Florida Holocaust Museum et al. by Donald 
S. Burris, Joshua Magidson, and Andrew Sasso; for the Holocaust Art 
Restitution Project, Inc., by Pierre Ciric; for the Holocaust Survivors 
Foundation USA, Inc., et al. by Samuel J. Dubbin; for Members of the 
United States House of Representatives by Akiva Shapiro; for the Na-
tional Jewish Commission on Law and Public Affairs et al. by Nathan 
Lewin, Alyza D. Lewin, and Dennis Rapps; and for the World Jewish 
Congress et al. by Thomas R. Kline and L. Eden Burgess. 
Briefs of amici curiae were fled for Holocaust and Nuremberg Histori-
ans by Owen C. Pell; for The 1939 Society et al. by Benjamin G. Shatz, 
Stanley A. Goldman, and Stanley W. Levy; for William S. Dodge et al. by 
Geoffrey M. Klineberg and Daniel S. Severson; for Samuel Estreicher 
et al. by Amelia L. B. Sargent; and for Peter Toren by Lawrence S. Rob-
bins, Gary A. Orseck, Ariel N. Lavinbuk, and D. Hunter Smith. 
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Opinion of the Court 
Chief Justice Roberts delivered the opinion of the 
Court. 
The Foreign Sovereign Immunities Act provides that for-
eign nations are presumptively immune from the jurisdiction 
of United States courts. The statute, however, sets forth 
several specifc 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.” 28 U. S. C. § 1605(a)(3). The question 
presented is whether a country's alleged taking of property 
from its own nationals falls within this exception. 
I 
This case concerns several dozen medieval relics and devo-
tional 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 Cathedral 
over the course of several centuries, before being moved to 
a Hanoverian chapel in 1671 and later to Switzerland for 
safekeeping in the wake of World War I. 
During the waning years of the Weimar Republic, a con-
sortium of three art frms 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 Europe 
and the United States, including many to the Cleveland Mu-
seum 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 
Goering—Adolf Hitler's deputy and the Prime Minister of 
Prussia—became interested in the remainder of the Welfen-
schatz. The complaint alleges that he employed a combina-
tion of political persecution and physical threats to coerce 
the consortium into selling the remaining pieces to Prussia 
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174 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
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in 1935 for approximately one-third of their value. Two of 
the consortium members fed 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 Foundation—and it 
is now displayed at a museum in Berlin. SPK is an instru-
mentality 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 frst 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 trans-
action occurred at a fair market price without coercion. 
In 2014, the parties agreed to submit the claim to the 
German Advisory Commission for the Return of Cultural 
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 
fled 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— 
collectively Germany—moved to dismiss the case. Relevant 
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here, Germany argued that it was immune from suit because 
the heirs' claims did not fall within the FSIA's exception to 
immunity for “property taken in violation of international 
law.” See 28 U. S. C. § 1605(a)(3); see also § 1603(a) (defning 
“foreign state” to include “an agency or instrumentality of 
a foreign state”). In doing so, Germany reasoned that the 
purchase of the Welfenschatz could not have violated inter-
national law because a sovereign's taking of its own nation-
als' property is not unlawful under the international 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 therefore violated the in-
ternational 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 affrmed, 894 F. 3d 406 (2018). The panel agreed 
with the heirs that the exception for property taken in viola-
tion of international law was satisfed because “genocide per-
petrated by a state even against its own nationals is a vio-
lation of international law.” Id., at 410–411 (quoting 
Simon 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-
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176 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
Opinion of the Court 
public v. Amerada Hess Shipping Corp., 488 U. S. 428, 443 
(1989). The Act creates a baseline presumption of immunity 
from suit. § 1604. “[U]nless a specifed exception applies, 
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 property— 
not the law of genocide—and under the international law of 
property a foreign sovereign's taking of its own nationals' 
property remains a domestic affair. This “domestic takings 
rule” assumes that what a country does to property belong-
ing to its own citizens within its own borders is not the sub-
ject of international law. See Bolivarian Republic of Vene-
zuela v. Helmerich & Payne Int'l Drilling Co., 581 U. S. 
170, 181 (2017) (citing Restatement (Third) of Foreign Rela-
tions 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 rela-
tions among sovereign states, not relations between states 
and individuals. See Banco Nacional de Cuba v. Sabbatino, 
376 U. S. 398, 422 (1964) (“The traditional view of interna-
tional law is that it establishes substantive principles for de-
termining whether one country has wronged another.”). 
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 “consti-
tuted an injury to the state of the alien's nationality.” Brad-

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ley & 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, Expro-
priation in International Law 5, 139 (1953). Such mistreat-
ment was an affront to the sovereign, and “therefore the 
alien's state alone, and not the individual, could invoke 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 Na-
tions § 81, p. 138 (C. Fenwick transl. 1916) (“Even the prop-
erty of individuals, taken as a whole, is to be regarded as the 
property of the Nation with respect to other Nations.”); 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.”). 
The domestic takings rule has deep roots not only in inter-
national law but also in United States foreign policy. Secre-
tary of State Cordell Hull most famously expressed the prin-
ciple in a 1938 letter to the Mexican Ambassador following 
that country's nationalization of American oil felds. The 
Secretary conceded “the right of a foreign government 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 expense 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 individu-
als, 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

178 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
Opinion of the Court 
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 “confscation 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 Commission 
on Human Rights). 
Some criticized the treatment of property rights under in-
ternational law, but they did so on the ground that all sover-
eign takings were outside the scope of international law, not 
just domestic takings. In the 1950s and 1960s, a growing 
chorus of newly independent states, particularly in Latin 
America, resisted any foreign restraint on their ability to 
nationalize property. See Young, The Story of Banco Nacio-
nal de Cuba v. Sabbatino, in Federal Courts Stories 422–423 
(V . Jackson & J. Resnik eds. 2010). Put differently, states 
and scholars disagreed over whether international law pro-
vided a remedy for a sovereign's interference with anyone's 
property rights, not whether domestic takings were outside 
the purview of international law. That principle was be-
yond 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 ex-
propriate 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 
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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 
Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (SDNY 1966) 
(interpreting the Hickenlooper Amendment to displace Sab-
batino but dismissing the suit on the ground that “confsca-
tions by a state of the property of its own nationals, no 
matter how fagrant . . . , 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 Sec-
ond 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 
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180 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
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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 defnes geno-
cide as “deliberately inficting on [a] group conditions of life 
calculated to bring about its physical destruction in whole or 
in part.” Convention on the Prevention and Punishment of 
the Crime of Genocide, Art. II, Dec. 9, 1948, 78 U. N. T. S. 
277, 280. According to the heirs, the forced sale of their 
ancestors' art constituted an act of genocide because the con-
fscation of property was one of the conditions the Third 
Reich inficted 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 jurisdiction 
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. 
Restatement (Second) § 185; see also Permanent Mission of 
India to United Nations v. City of New York, 551 U. S. 193, 
199–200 (2007) (noting our consistent practice of interpreting 
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 
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Opinion of the Court 
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). 
The heirs concede that at the time of the FSIA's enactment 
the international law of expropriation retained the domestic 
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 
expropriation—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 
concerns “property taken in violation of international 
law”—not “property takings in violation of international 
law.” Tr. of Oral Arg. 70. This distinction between “tak-
ings” and “taken,” they say, is the difference between incor-
porating the specifc 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 foreign 
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 instrumental-
ity of the foreign state and that agency or instrumental-
ity is engaged in a commercial activity in the United 
States.” 28 U. S. C. § 1605(a)(3). 
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182 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
Opinion of the Court 
The exception places repeated emphasis on property and 
property-related rights, while injuries and acts we might as-
sociate 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 vio-
lations 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 interna-
tional law's preservation of sovereign immunity for viola-
tions 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 
Offcials, 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 accompanied 
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 
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Cite as: 592 U. S. 169 (2021) 183 
Opinion of the Court 
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. Restatement 
(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 
part of a defense of America's free enterprise system. Sab-
batino, 376 U. S., at 430. 
Given that the FSIA “largely codifes” 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 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. See Helmerich, 581 U. S., at 181 (rejecting the 
suggestion that Congress intended the expropriation excep-
tion to operate as a “radical departure” from the “basic prin-
ciples” of the restrictive theory). 
C 
Other provisions of the FSIA confrm 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 
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184 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
Opinion of the Court 
“in which money damages are sought against a foreign state 
for personal injury or death, or damage to or loss of prop-
erty,” but only where the relevant conduct “occurr[ed] in 
the United States.” § 1605(a)(5). Similarly, 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. 
§§ 1605A(a), (h). 
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 excep-
tion to sovereign immunity. And there is no reason to sup-
pose Congress thought acts of genocide or other human 
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 interna-
tional relations: to avoid, where possible, “producing friction 
in our relations with [other] nations and leading some to re-
ciprocate by granting their courts permission to embroil the 
United States in expensive and diffcult litigation.” Helm-
erich, 581 U. S., at 183 (internal quotation marks omitted); 
RJR Nabisco , Inc. v. European Community , 579 U. S. 
325, 335 (2016) (interpreting civil Racketeer Infuenced and 
Corrupt Organizations Act “to avoid the international dis-
cord that can result when U. S. law is applied to conduct in 
foreign countries”); Kiobel, 569 U. S., at 116 (interpreting

Cite as: 592 U. S. 169 (2021) 185 
Opinion of the Court 
Alien Tort Statute so as not to “adopt an interpretation of 
U. S. law that carries foreign policy consequences not clearly 
intended by the political branches”). 
As a Nation, we would be surprised—and might even initi-
ate 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. 
III 
The heirs offer several counterarguments, but none can 
overcome the text, context, and history of the expropria-
tion exception. 
First, the heirs rely on the 2016 Foreign Cultural Ex-
change Jurisdictional Immunity Clarifcation Act. The Act 
amends the FSIA to explain that participation in specifed 
“art exhibition activities” does not qualify as “commercial 
activity” within the meaning of the expropriation exception. 
28 U. S. C. § 1605(h). This clarifcation responded to deci-
sions of federal courts holding to the contrary, see, e. g., Ma-
lewicz v. Amsterdam, 362 F. Supp. 2d 298, 313–315 (DC 
2005), and enables foreign states to loan art to American mu-
seums without fear that the work's presence in the United 
States will subject them to litigation here. The provision, 
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 clari-
fcation of the expropriation exception shows that Congress 
anticipated Nazi-era claims could be adjudicated 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-
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186 FEDERAL REPUBLIC OF GERMANY v. PHILIPP 
Opinion of the Court 
mann, 541 U. S., at 680–682 (claim concerning Austrian tak-
ing of Czechoslovakian national's art brought under the ex-
propriation exception). As for the heirs' suggestion that the 
Clarifcation Act demonstrates that Congress meant to abro-
gate immunity for any Nazi-era claim, however, we do not 
interpret Congress's effort to preserve sovereign immunity 
in a narrow, particularized context—art shows—as support-
ing the broad elimination of sovereign immunity across all 
areas of law. The Clarifcation Act did not purport to amend 
the critical phrase here—“taken in violation of international 
law”—and we will not construe it to do so. 
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 Sur-
vivors Today (JUST) Act of 2017, Pub. L. 115–171, 132 Stat. 
1288. These laws, the heirs suggest, demonstrate Con-
gress'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 in-
juries 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 effcient 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 
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Opinion of the Court 
such international concern. The heirs have not shown that 
the FSIA allows them to bring their claims against Germany. 
We cannot permit them to bypass its design. 
IV 
We hold that the phrase “rights in property taken in viola-
tion of international law,” as used in the FSIA's expropria-
tion 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 
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 Wel-
fenschatz is not subject to the domestic takings rule because 
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 di-
rect 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.

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 592 U. S. Part 1 Pages 169–187 OFFICIAL REPORTS OF THE SUPREME COURT February 3, 2021 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to n…

• #2

  (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…

• #3

  guage when it crafted the FSIA's expropriation exception twelve years later. Based on this historical and legal background, courts reached a “consensus” that the expropriation exception's “reference to `violation of international law' does not cover expropriations of property belong- ing to a country's own nationa…

• #4

  lations. One FSIA exception, for example, 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). And the FSIA's terrorism excep…

• #5

  him on the brief were Acting Solicitor General Wall, Sopan Joshi, Colleen E. Roh Sinzdak, Sharon Swingle, and Joshua K. Handell. Nicholas M. O'Donnell argued the cause for respondents. With him on the brief was Erika L. Todd.* *Briefs of amici curiae urging reversal were fled for Foreign Interna- tional Law Scho…

• #6

  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 Cathedral over the course of several centuries, before being moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping in the wake of…

• #7

  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 he…

• #8

  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 …

• #9

  implicated the international legal system because it “consti- tuted an injury to the state of the alien's nationality.” Brad- Page Proof Pending Publication Cite as: 592 U. S. 169 (2021) 177 Opinion of the Court ley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position…

• #10

  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 “confscation of the property of foreigners,” but “measures taken by a State w…

• #11

  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…

• #12

  277, 280. According to the heirs, the forced sale of their ancestors' art constituted an act of genocide because the con- fscation of property was one of the conditions the Third Reich inficted on the Jewish population to bring about their destruction. We need not decide whether the sale of the consortium's prop…

• #13

  many's reading. In its entirety the clause provides that United States courts may exercise jurisdiction over a foreign 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…

• #14

  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…

• #15

  Page Proof Pending Publication 184 FEDERAL REPUBLIC OF GERMANY v. PHILIPP Opinion of the Court “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of prop- erty,” but only where the relevant conduct “occurr[ed] in the United States.” § 1605(a)(5). Similar…

• #16

  ate 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 Amer…

• #17

  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 Sur- vivors Today (JUST)…

• #18

  forfeited this argument). The Court of Appeals should di- rect 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. I…