Sampson, Jacob v. Federal Republic

In the

United States Court of Appeals

For the Seventh Circuit

No. 97-3555

Jacob Sampson,

Plaintiff-Appellant,

v.

Federal Republic of Germany and

Claims Conference, Article 2 Fund,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 6242--Ann Claire Williams, Judge.

Argued February 13, 2001--Decided May 23, 2001

Before Manion, Kanne, and Evans, Circuit

Judges.

Manion, Circuit Judge. Jacob Sampson,

pro se, sued Germany for his imprisonment

in Nazi concentration camps, and sued

Germany and the Conference on Jewish

Material Claims Against Germany, Inc.

("Claims Conference") for reparations

from funds created for Holocaust

survivors. The district court dismissed

the complaint concluding that Germany was

immune from suit and that Sampson lacked

standing to sue the Claims Conference.

Sampson appeals. We affirm.

I.

Sampson’s complaint alleges horrors

which are beyond belief, and the evils he

describes cannot be condemned in strong

enough terms./1 In 1939, Sampson was

imprisoned in the Lodz ghetto in Poland.

He was subsequently transported by cattle

car to the Auschwitz concentration camp,

where he was forced to perform slave

labor. At Auschwitz, the Gestapo killed

all sixty members of his family. Sampson

somehow survived, and he is now a United

States citizen and resident of Chicago.

The Claims Conference is an

international coalition of twenty-three

Jewish nonprofit organizations. For

nearly half a century, the Claims

Conference has engaged in discussions

with Germany to secure restitution for

Jewish survivors of the Holocaust. In

1952, the Claims Conference and Germany

agreed on Protocols to achieve this goal.

Protocol No. 1 called for Germany to

"redress . . . [Nazi] wrongs" and "take

as soon as possible all steps within

[its] constitutional competence to ensure

the carrying out of the [agreed upon]

programme." Pursuant to this Protocol,

Germany enacted the German Federal

Indemnification Law, which provided for

restitution to Holocaust victims. Since

restitution would be impossible as a

practical matter in many cases, the

parties also entered into Protocol No. 2.

Under Protocol No. 2, Germany agreed to

pay Israel DM 450 million for the benefit

of the Claims Conference which would use

the money to provide for the "relief,

rehabilitation and resettlement of Jewish

victims of National Socialist persecution

[who did not live in Israel], according

to the urgency of their needs." Disputes

concerning the disbursement of this money

would be handled by an Arbitral

Commission established between Israel and

Germany.

However, not every Holocaust survivor

received compensation through this

process. Accordingly, in 1980, the Claims

Conference and Germany established the

"Hardship Fund" to give a one-time

payment to Holocaust survivors who had

not received prior compensation. The

Claims Conference administers the

Hardship Fund, but its sole role is to

determine whether the claimants meet the

German guidelines--not to differentiate

among qualified applicants in the amount

of payment. The Hardship Fund prohibits

"a right of action to receive

compensation."

In 1990, Germany and the Claims

Conference established the "Article 2

Fund" to provide compensation to

Holocaust victims who had received

minimal or no compensation. The Article 2

Fund provides for a one-time payment of

DM 5,000 and monthly payments of DM 500

to these individuals. The Claims

Conference also administers the Article 2

Fund, but has no discretion to deviate

from Germany’s guidelines. The Article 2

Fund declares that "[t]here is no legal

claim to the payments provided according

to this agreement."

Most recently, on July 17, 2000, the

United States and Germany signed an

agreement (the "Foundation Agreement")

which created the "Remembrance,

Responsibility and the Future Foundation"

(the "Foundation"). The Foundation is a

joint instrumentality of the German

government and German companies formed to

make payments to individuals who were

forced laborers under the Nazi regime or

who suffered injury or property loss due

to the acts of German companies. As part

of the Foundation Agreement, the United

States promised to "take appropriate

steps to oppose any challenge to the

sovereign immunity of the Federal

Republic of Germany with respect to any

claim . . . concerning the consequences

of the National Socialist era and World

War II." The Agreement took effect on

October 19, 2000.

Sampson first requested compensation

from Germany in 1948. This effort

received no response. In 1981, he filed a

claim with the Hardship Fund, which also

received no response. However, in

February 1996, Sampson was compensated;

he received a one-time payment of DM

5,000 as well as monthly payments of DM

500 retroactive to August 1995 from the

Article 2 Fund.

Subsequently, Sampson filed suit in

federal district court against Germany

and the Claims Conference seeking $10

million plus costs. Sampson sought

compensation from Germany based on his

enslavement during World War II, and from

Germany and the Claims Conference for an

alleged conspiracy to deprive him of full

compensation for his injuries.

Specifically, Sampson alleged the

defendants conspired to embezzle funds

intended for Holocaust victims, breached

their covenant with him, and

discriminated against him.

Germany and the Claims Conference moved

to dismiss Sampson’s complaint. The

district court dismissed the claims

against Germany, concluding Germany was

immune from suit under the Foreign

Sovereign Immunities Act ("FSIA"), 28

U.S.C. secs. 1330, 1602-11, and under the

act of state doctrine. The district court

also granted the Claims Conference’s

motion to dismiss, concluding that

Sampson had no right to payment by the

Claims Conference and that the act of

state doctrine precluded suit against the

Claims Conference in any event.

Sampson appealed the dismissals to this

court. On appeal, this court appointed

Dean Howard Eisenberg and Professor

Joseph Kearney of Marquette University

Law School as amicus curiae ("Amicus") to

argue on Sampson’s behalf. Amicus briefed

the issue of whether Germany has immunity

under the FSIA for acts which violate jus

cogens norms of customary international

law, and whether these claims are barred

by a statute of limitations. This court

postponed oral argument to permit the

United States government to file a brief.

The United States government filed a

brief as amicus curiae (the "United

States") in support of Germany’s argument

that it had sovereign immunity for its

acts during World War II.

II.

On an appeal from a motion to dismiss,

we review the dismissal de novo,

accepting all well-pleaded

factualallegations in the complaint as

true, and making all reasonable

inferences in the non-movant’s favor. See

Gonzalez v. City of Chicago, 239 F.3d

939, 940 (7th Cir. 2001). In this case,

the district court dismissed the counts

against Germany based on sovereign

immunity.

"We start from the settled proposition

that the subject matter jurisdiction of

the lower federal courts is determined by

Congress ’in the exact degrees and

character which to Congress may seem

proper for the public good.’" Argentine

Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 433 (1989) (quoting Cary v.

Curtis, 44 U.S. (3 How.) 236, 245

(1845)). Relevant to this appeal is the

FSIA, the federal statute in which

Congress defined "the sole basis for

obtaining jurisdiction over a foreign

state in our courts." Id. at 434./2

Specifically, the FSIA provides that

"[s]ubject to existing international

agreements to which the United States is

a party at the time of the enactment of

this Act[,] a foreign state shall be

immune from the jurisdiction of the

courts of the United States and of the

States except as provided in sections

1605 to 1607 of this chapter." 28 U.S.C.

sec.1604. The FSIA also provides that

"[t]he district courts shall have

original jurisdiction without regard to

amount in controversy of any nonjury

civil action against a foreign state . .

. as to any claim for relief in personam

with respect to which the foreign state

is not entitled to immunity either under

sections 1605-1607 of this title or under

any international agreement." 28 U.S.C.

sec. 1330(a). Thus, "[u]nder the Act, a

foreign state is presumptively immune

from the jurisdiction of United States

courts; unless a specified 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)./3

Accordingly, we must determine whether

the general grant of sovereign immunity

in the FSIA, or one of the exceptions,

applies to Sampson’s claims.

Sampson and Amicus argue that this court

has jurisdiction under Section 1605(a)(1)

of the FSIA, which provides an exception

to sovereign immunity where a "foreign

state has waived its immunity . . . by

implication." Specifically, Sampson and

Amicus argue that a violation of a non-

derogable jus cogens norm of customary

international law constitutes an implied

waiver of a foreign state’s sovereign im

munity.

To understand this argument some

additional background is necessary.

Customary international law is the

"general and consistent practice of

states followed by them from a sense of

obligation." See Restatement (Third), The

Foreign Relations Law of the United

States sec. 102(2) (1987). Courts

determine the content of customary

international law by "consulting the

works of jurists, writing professedly on

public law; or by the general usage and

practice of nations; or by judicial

decisions recognizing and enforcing that

law." United States v. Smith, 18 U.S. (5

Wheat.) 153, 160-61 (1820).

A jus cogens norm is a special type of

customary international law. A jus cogens

norm "’is a norm accepted and recognized

by the international community of states

as a whole as a norm from which no

derogation is permitted and which can be

modified only be a subsequent norm of

general international law having the same

character.’" See Siderman de Blake v.

Republic of Argentina, 965 F.2d 699, 714

(9th Cir. 1992) (quoting Vienna

Convention on the Law of Treaties, art.

53, May 23, 1969, 1155 U.N.T.S. 332, 8

I.L.M. 679). Most famously, jus cogens

norms supported the prosecutions in the

Nuremberg trials. See Siderman, 965 F.2d

at 715 (9th Cir. 1992) ("The universal

and fundamental rights of human beings

identified by Nuremberg--rights against

genocide, enslavement, and other inhumane

acts . . . --are the direct ancestors of

the universal and fundamental norms

recognized as jus cogens.").

"Courts seeking to determine whether a

norm of customary international law has

attained the status of jus cogens look to

the same sources [as for customary

international law], but must also

determine whether the international

community recognizes the norm as one

’from which no derogation is permitted.’"

See id., 965 F.2d at 715 (quoting

Committee of U.S. Citizens Living in

Nicaragua v. Reagan ("CUSCLUN"), 859 F.2d

929, 940 (D.C. Cir. 1988)). "While jus

cogens and customary international law

are related, they differ in one important

respect. Customary international law,

like international law defined by

treaties and other international

agreements, rests on the consent of

states." Id. In contrast, a state is

bound by jus cogens norms even if it does

not consent to their application.

"International law does not recognize an

act that violates jus cogens as a

sovereign act." Siderman, 965 F.2d at

718. Thus, a violation of jus cogens

norms "would not be entitled to the

immunity afforded by international law."

See id. Sampson and Amicus note that

Germany’s crimes against humanity during

World War II are not entitled to immunity

as sovereign acts under international law

because they violate jus cogens norms. In

addition, they note that the House Report

when the FSIA was enacted stated that

"the central premise of the bill [is]

[t]hat decisions on claims by foreign

states to sovereign immunity are best

made by the judiciary on the basis of a

statutory regime which incorporates

standards recognized under international

law." H.R. Rep. No. 1487, reprinted in

1976 U.S.C.C.A.N., at 6613. Accordingly,

they urge us to hold that the FSIA’s

implied waiver exception to sovereign

immunity extends to violations of jus

cogens norms.

Initially, we note that we have held in

other contexts that the implied waiver

provision of the FSIA is to be narrowly

construed. See Frolova v. Union of Soviet

Socialist Republics, 761 F.2d 370, 377

(7th Cir. 1985). In fact, "courts rarely

find that a nation has waived its

sovereign immunity, particularly with

respect to suits brought by third

parties, without strong evidence that

this is what the foreign state intended."

Id. See also Princz, 26 F.3d at 1174;

Foremost-McKesson, Inc. v. Islamic

Republic of Iran, 905 F.2d 438, 444 (D.C.

Cir. 1990). Cf. Amerada Hess, 488 U.S. at

442-43 (holding that a foreign state

cannot "waive its immunity under

sec.1605(a)(1) by signing an

international agreement that contains no

mention of a waiver of immunity to suit

in United States courts or even the

availability of a cause of action in the

United States."). Thus, "an implied

waiver depends upon the foreign

government’s having at some point

indicated its amenability to suit."

Princz, 26 F.3d at 1174.

In this case, there is no evidence that

Germany indicated, either expressly or

implicitly, that it was willing to be

sued in the United States based on

actions during World War II. See id.

(concluding no evidence existed that

Germany "indicated, even implicitly, a

willingness to waive immunity for actions

arising out of the Nazi atrocities.").

Sampson responds that the following

constitutes evidence that Germany waived

its sovereign immunity: a letter from the

German government stating that the German

people is responsible for the past; a

letter from the Claims Conference stating

that Sampson was eligible to receive

compensation payments; and a holding by

the German Supreme Constitutional Court

regarding jus cogens norms. See Pl. Br.

at 14. But these statements do not

indicate an intent by the state of

Germany to be subject to suit in United

States courts; they merely demonstrate

that Germany recognizes that its actions

during World War II constituted

violations of jus cogens norms. Nor is

there any other evidence in the record,

much less the strong evidence sufficient

to demonstrate Germany’s intent to waive

its immunity.

Our conclusion that Germany did not

impliedly waive its sovereign immunity

under the FSIA finds support in decisions

rendered by three of our sister circuits.

In Siderman, the Ninth Circuit addressed

a claim that Argentina had impliedly

waived its sovereign immunity based on

the jus cogens norm against torture. The

Court concluded that the Supreme Court’s

holding in Amerada Hess, that the FSIA

was the sole basis of jurisdiction over

foreign sovereigns, precluded a finding

that an implied waiver exception existed

for jus cogens violations. In Princz, a

case involving claims similar to

Sampson’s, the D.C. Circuit reached the

same conclusion. The court based its

holding on its determination that the

implied waiver exception to the FSIA

required an indication that the foreign

sovereign intended to waive its sovereign

immunity. And in Smith v. Socialist

People’s Libyan Arab Jamahiriya, 101 F.3d

239 (2d Cir. 1997), a case involving

international terrorism, the Second

Circuit held that Congress did not intend

the implied waiver provision to extend to

jus cogens violations.

Amicus argues in response that while an

implied waiver under Section 1605(a)(1)

must generally demonstrate a clear intent

by the state to waive its sovereign

immunity, that principle does not apply

to cases involving violations of jus

cogens norms of international law. This

argument tracks Judge Wald’s dissent in

Princz:

Jus cogens norms are by definition

nonderogable, and thus when a state

thumbs its nose at such a norm, in effect

overriding the collective will of the

entire international community, the state

cannot be performing a sovereign act

entitled to immunity.

Princz, 26 F.3d at 1182 (Wald, J.,

dissenting). See also Adam C. Belsky, et

al., Comment, Implied Waiver Under the

FSIA: A Proposed Exception to Immunity

for Violations of Peremptory Norms of

International Law, 77 Cal.L.Rev. 365, 396

(1989) ("Whether or not states intend to

waive their immunity by conducting

commercial activities in foreign states,

their actions are not recognized as

sovereign acts and are not accorded

immunity under the restrictive theory of

immunity. Similarly, because, under

international law, states are not

recognized as acting within their

sovereign capacity when they derogate

from a rule of jus cogens, they should

not be entitled to claim sovereign

immunity.").

Amicus further points to Chief Justice

Marshall’s famous statement that "an act

of Congress ought never to be construed

to violate the law of nations if any

other possible construction remains," see

Murray v. The Schooner Charming Betsy, 6

U.S. (2 Cranch) 64, 118 (1804), arguing

that because under international law

violations of jus cogens norms constitute

a waiver of immunity, we should interpret

them as a waiver under the FSIA also. The

principle on which Amicus relies in

making this argument is known as the

"Charming Betsy canon," and it has

traditionally justified a narrow

interpretation of ambiguous legislation

to avoid violations of international law.

While the Charming Betsy canon directs

courts to construe ambiguous statutes to

avoid conflicts with international law,

international law itself does not mandate

Article III jurisdiction over foreign

sovereigns. In other words, although jus

cogens norms may address sovereign

immunity in contexts where the question

is whether international law itself

provides immunity, e.g., the Nuremberg

proceedings, jus cogens norms do not

require Congress (or any government) to

create jurisdiction. Because

international law is silent on the grant

of federal court jurisdiction at issue,

we interpret the FSIA without reference

to the Charming Betsy canon.

Nevertheless, Amicus argues that the

Charming Betsy canon requires us to

construe the terms of an ambiguous

statute so that it is consistent with the

content of international law. Even

assuming the FSIA is ambiguous, Amicus’s

reading of Charming Betsy would require

us to apply the canon even where it is

unnecessary to avoid a violation of

international law. Judicial support for

this view can be found in a few isolated

statements. For example, in her dissent

in Princz, Judge Wald cited the well-

established principle that

"[i]nternational law is part of our law,"

Paquete Habana, 175 U.S. 677, 700 (1900),

and claimed that therefore "we must,

wherever possible, interpret United

States law consistently with

international law." Princz, 26 F.3d at

1183 (Wald, J., dissenting). See also

Amerada Hess Shipping Corp. v. Argentine

Republic, 830 F.2d 421, 426 (2d Cir.

1987), rev’d on other grounds, 488 U.S.

428 (1989) ("Since international law

would deny immunity in these

circumstances, we would construe the FSIA

to grant immunity only if Congress

clearly expressed such an intent.").

Citing Charming Betsy, Judge Wald further

concluded that "[t]he only way to

reconcile the FSIA’s presumption of

foreign sovereign immunity with

international law is to interpret sec.

1605(a)(1) of the Act as encompassing the

principle that a foreign state implicitly

waives its right to sovereign immunity in

United States courts by violating jus

cogens norms." Princz, 26 F.3d at 1183

(Wald, J., dissenting).

We note that the D.C. Circuit rejected

Judge Wald’s view, holding instead that

the intent of Congress would have to be

clearer before it would be appropriate to

find an implied waiver of sovereign

immunity for jus cogens violations. As

Judge Ginsburg noted in Princz:

We think that something more nearly

express [than the FSIA implied waiver

provision] is wanted before we impute to

the Congress an intention that the

federal courts assume jurisdiction over

the countless human rights cases that

might well be brought by the victims of

all the ruthless military juntas,

presidents-for-life, and murderous

dictators of the world, from Idi Amin to

Mao Zedong. Such an expansive reading of

sec. 1605 (a)(1) would likely place an

enormous strain not only upon our courts

but, more to the immediate point, upon

our country’s diplomatic relations with

any number of foreign nations. In many if

not most cases the outlaw regime would no

longer even be in power and our

Government could have normal relations

with the government of the day--unless

disrupted by our courts, that is.

26 F.3d at 1174, n.1.

Moreover, although international law is

"part of our law," it does not follow

that federal statutes must be read to

reflect the norms of international

law./4 Cf. United States v. Yunis, 924

F.2d 1086, 1091 (D.C. Cir. 1991) ("Our

duty is to enforce the Constitution, laws

and treaties of the United States, not to

conform the law of the land to norms of

customary international law."). Since

customary international law in the modern

era is often based on the contents of

multi-lateral treaties to which the

United States attaches reservations (or

refuses to join at all), there is also

little reason to indulge in a presumption

that Congress intends courts to mold

ambiguous statutes into consistency with

customary international law. Use of the

canon so as to effectively incorporate

customary international law into federal

statutes when the political branches of

our government may have rejected the

international law at issue seems dubious

at best. Cf. Stanford v. Kentucky, 492

U.S. 361, 369 n.1 (1989) ("We emphasize

that it is American conceptions of

decency that are dispositive [in

interpreting the Eighth Amendment],

rejecting the contention of petitioners

and their various amici . . . that the

sentencing practices of other countries

are relevant.") (emphasis in original).

Indeed, the statutory text provides

immunity "[s]ubject to existing

international agreements to which the

United States [was] a party at the time

of the enactment of the Act," 28 U.S.C.

sec. 1604, language which indicates that

Congress was cautious about the

development and source of future

exceptions to the immunity it granted.

There is even less justification for an

expansive reading of Charming Betsy in

light of the chameleon qualities of

international law. Cf. CUSCLUN, 859 F.2d

at 940 ("[C]ustomary international law is

continually evolving.")./5 If courts

were to interpret statutes according to

their view of what best fits the changing

nuances of customary international law,

they would frequently make decisions that

run up against the foreign policy of the

other two branches of our government. And

rather than encouraging peaceful

relations with other nations, such an

expansive reading of the Charming Betsy

canon would predictably create tensions

in cases like this one, which involve

jurisdiction over foreign sovereigns.

Amicus argues that the phrase "waive[r]

. . . by implication" in section

1605(a)(1), in conjunction with a

legislative history that references

common law examples of waiver, indicates

a congressional intent that courts

develop a common law to determine when an

implied waiver occurs. That would mean a

decision whether an implied waiver exists

would be based on the evolving

recognition of jus cogens norms in United

States courts. If anything, the

legislative history of section 1605(a)(1)

cuts against Amicus’s argument by

providing very specific examples of

implied waiver: "(1) a foreign state has

agreed to arbitration in another country;

(2) a foreign state has agreed that

acontract is governed by the law of a

particular country; and (3) a foreign

state has filed a responsive pleading in

a case without raising the defense of

sovereign immunity." Frolova, 761 F.2d at

377. These are all narrow examples which

have a nexus with legal proceedings in

the United States, and do not suggest a

congressional intent that the list of

potential waivers be extended. Courts

have been reluctant to stretch claims of

implied waiver beyond these examples. See

Socialist People’s Libyan Arab

Jamahiriya, 101 F.3d at 244 ("Our

reluctance to construe the concept of

implied waiver to include all violations

of jus cogens . . . is based on our

understanding of what the 94th Congress

meant when it illustrated the inexact

phrase ’waive[r] . . . by implication’

with examples drawn entirely from

thelitigation context.").

Moreover, Amicus’s common law argument

would be ground-breaking. Amicus

encourages this court to engage in an

evolving understanding of waiver, an

understanding which is necessarily

subject to the vagaries of customary

international law. Customary

international law can evolve

unpredictably without reference to the

understandings of courts or Congress.

While it is true that Congress intended

the FSIA to be "a statutory regime which

incorporates standards recognized under

international law," H.R. Rep. No. 1487,

reprinted in 1976 U.S.C.C.A.N., at 6613,

Amicus’s suggestion would entail a truly

novel and possibly unrestrained form of

jurisdiction. Congress’s general desire

to follow standards recognized under

international law does not provide the

foundation needed to support that

proposed reading of an implied waiver. As

this court has noted, "’[n]o legislation

pursues its purposes at all costs.

Deciding what competing values will or

will not be sacrificed to the achievement

of a particular objective is the very

essence of legislative choice--and it

frustrates rather than effectuates

legislative intent simplistically to

assume that whatever furthers the

statute’s primary objective must be the law.’"

Continental Can Co. v. Chicago Truck

Drivers, Helpers and Warehouse Workers

Union (Independent) Pension Fund, 916

F.2d 1154, 1159 (7th Cir. 1990)

(Easterbrook, J.) (quoting Rodriguez v.

United States, 480 U.S. 522, 525-26

(1987)). Congress could not have intended

to confer a jurisdiction so malleable on

Article III courts without a clear

statement to that effect.

Also, jus cogens norms are even now an

uncertain means to determine whether a

foreign sovereign has waived

jurisdiction, and missteps in this area

would have profound effect. A leading

treatise on international law has stated

that jus cogens is "a comparatively

recent development and there is no

general agreement as to which rules have

this character." See Oppenheim’s

International Law 7 (9th ed. 1992). The

absence of agreement among international

law scholars is so striking that one

commentator expressed the status of jus

cogens in the following terms: "no one

knows where jus cogens comes from, no one

knows whether or how or why it is part of

international law, no one knows its

content, no one knows how to modify it

once it is articulated, and indeed no one

knows whether it even exists." See

Anthony D’Amato, Human Rights as Part of

Customary International Law: A Plea for

Change of Paradigms, 25 Ga. J. Int’l &

Comp. L. 47, 57 (1995-1996). We do not

question that the allegations in

Sampson’s complaint rise to the level of

jus cogens violations--they are a

paradigm case--but that does not mean

that Congress intended an implicit waiver

provision to encompass this expanding

legal doctrine.

Amicus urges us to look to examples in

areas of the statutory law which are

known for their imprecision, such as

antitrust, that require courts to

elaborate their content through common

law reasoning. But, as the Supreme Court

has noted, antitrust is the exception:

"[i]n antitrust, the federal courts enjoy

more flexibility and act more as common-

law courts than in other areas governed

by federal statute." See Northwest

Airlines, Inc. v. Transp. Workers Union

of America, 451 U.S. 77, 99 n.42 (1981).

The comparison is inapt, moreover. While

certain statutes look to pre-existing

common law definitions for their terms,

or may even call for a common law

interpretation which evolves over the

years, these examples are a far cry from

a common law which develops pursuant to

the ideas of commentators and academics

who do not hold judicial office and whose

reasoning is not grounded in the

framework of positive domestic law. At

least in the former context, courts

develop the common law in accord with

this nation’s legal history and

established norms. Domestic courts (and

for that matter the other two branches of

our government), do not determine the

content of the jus cogens doctrine.

Instead, it emanates from academic

commentary and multilateral treaties,

even when unsigned by the United States.

Only as a last resort should United

States courts infer jurisdiction over

foreign sovereigns through this loosely

woven subject matter. See also Tel-Oren

v. Libyan Arab Republic, 726 F.2d 774,

827 (D.C. Cir. 1984) (Robb, J.,

concurring) ("Courts ought not to serve

as debating clubs for professors willing

to argue over what is or what is not an

accepted violation of the law of

nations."). Absent congressional

direction, such overactive involvement by

our judiciary would challenge the

consent-based structure of our

constitutional system.

In interpreting the FSIA, we are mindful

that "judicial resolution of cases

bearing significantly on sensitive

foreign policy matters, like the case

before us, might have serious foreign

policy implications which courts are ill-

equipped to anticipate or handle."

Frolova, 761 F.2d at 375. The potential

scope of a customary international law

exception to foreign sovereign immunity,

even in the jus cogens context, would

allow for a major, open-ended expansion

of our jurisdiction into an area with

substantial impact on the United States’

foreign relations. As noted by the

Supreme Court in Oetjen v. Central

Leather Co., 246 U.S. 297, 302 (1918),

"[t]he conduct of the foreign relations

of our government is committed by the

constitution to the Executive and

Legislative--’the political’--Departments

of the Government." Deference to the

foreign policy of the political branches

of our government requires us to exercise

caution before inferring that Congress

intended the implied waiver provision to

cover cases like this one. Cf. Banco

Nacional de Cuba v. Sabbatino, 376 U.S.

398, 433 (1964) (explaining

undesirability of adjudication of

international law where it might create

conflicts with the foreign policy of the

Executive branch in future cases). We

again determine, as we did in Frolova,

that our jurisdiction under the FSIA

should be construed narrowly, and

conclude that Congress did not create an

exception to foreign sovereign immunity

under the FSIA for violations of jus

cogens norms.

Sampson also claims on appeal that the

Claims Conference violated his civil

rights, breached a covenant, and

embezzled funds, in conspiracy with

Germany. In essence, Sampson argues that

he was not compensated as much as he

should have been under the funds

administered by the Claims Conference./6

This argument has already been addressed

in this circuit in Wolf v. Federal

Republic of Germany, 95 F.3d 536 (7th

Cir. 1996).

Sampson lacks standing to bring these

claims because the funds administered by

the Claims Conference do not provide him

with a right to compensation. As this

court stated in Wolf, "[i]n order to

maintain this suit, [plaintiff] must

establish that he had a legally protected

interest that the Claims Conference

invaded." See id. at 544 (citing Warth v.

Seldin, 422 U.S. 490, 500 (1975); Israel

Travel Advisory Service, Inc. v. Israel

Identity Tours, Inc., 61 F.3d 1250, 1258

(7th Cir. 1992)). The Protocols "’bar[ ]

the right of any individual to question

in court the manner in which the [Claims

Conference] is discharging its duties.’"

See Wolf, 95 F.3d at 544 (quoting Revici

v. Conf. of Jewish Material Claims

Against Germany, 174 N.Y.S.2d 825

(1958)). The 1980 Guidelines for the

Hardship Fund state that "[n]o right of

action to receive compensation is hereby

created." See id. The Article 2 Fund

states that "[t]here is no legal claim to

the payments provided according to this

agreement." As explained in detail in

Wolf, neither the Protocols nor the

Hardship Fund Guidelines create any right

to recover for particular individuals or

classes of individuals. Sampson,

accordingly, lacks standing to sue the

Claims Conference.

III.

Sampson’s claims against Germany are

barred by the FSIA and his claims against

the Claims Conference are barred by his

lack of standing. We conclude that

Congress did not create an implied waiver

exception to foreign sovereign immunity

under the FSIA for jus cogens violations.

Accordingly, we hold that the district

court lacked jurisdiction over Sampson’s

suit and therefore do not address the

merits or the application of the act of

state doctrine to this case. The district

court is AFFIRMED.

FOOTNOTES

/1 For purposes of Sampson’s appeal from the

district court’s dismissal, we accept the

allegations of the complaint as true.

/2 It is possible to construe Sampson’s brief as

arguing that jurisdiction exists under the Alien

Tort Claims Act, 28 U.S.C. U.S.C. sec. 1350. See

App. Br. at 9-10 (arguing under international law

that there is universal jurisdiction "when a

heinous crime is involved" and that the Alien

Tort Claims Act provides a cause of action in

this case). Although Amerada Hess involved viola-

tions of customary international law that were

not jus cogens violations, see infra, the Supreme

Court’s statement that our jurisdiction is limit-

ed to exceptions under the FSIA was absolute, and

was based in part on the determination that

Congress intended sovereign immunity under the

statute to apply even in instances where

international law was violated. The Court’s

holding appears to foreclose Sampson’s argument.

/3 Germany and the United States raise the possibil-

ity that the FSIA does not apply in this case

because it involves pre-1952 acts, in which case

Germany would be immune under the law in exis-

tence at that time. For most of this country’s

history, "the United States generally granted

foreign sovereigns complete immunity from suit in

the courts of this country." See Verlinden B.V.

v. Centr. Bank of Nigeria, 461 U.S. 480, 486

(1983) (citing Schooner Exchange v. M’Faddon, 7

Cranch 116 (1812)). This immunity was not consti-

tutionally based, however, but reflected "grace

and comity" by the United States to other na-

tions. See id. In 1952, however, the State De-

partment announced its adoption of a "restric-

tive" theory of foreign sovereign immunity, under

which immunity is limited to suits involving a

foreign sovereign’s public acts, but not its

strictly commercial acts. See id. at 487. In

1976, Congress, for the most part, codified the

restrictive theory in the FSIA. See id. at 488.

We need not decide whether the pre-1952 law or

the less stringent theory of sovereign immunity

codified in the FSIA applies because, as dis-

cussed below, Sampson’s suit against Germany is

barred even under the lower standards of the

FSIA. See also Princz v. Federal Republic of

Germany, 26 F.3d 1166, 1170-71 (D.C. Cir. 1994).

/4 Several early Supreme Court decisions explain

that customary international law is part of the

law of the United States. See, e.g., The Paquete

Habana, 175 U.S. 677 (1900); United States v.

Smith, 18 U.S. (5 Wheat.) 153 (1820). During the

nineteenth century, however, this apparently

meant that customary international law was in-

cluded in the general common law recognized in

Swift v. Tyson, 41 U.S. (14 Pet.) 1 (1842). The

general common law, unlike the federal common law

of today, did not fall under the Supremacy Clause

of the United States Constitution. Thus, the

exact meaning of these early pronouncements on

the domestic role of customary international law

became less certain after the Supreme Court’s

rejection of a general common law in Erie R.R.

Co. v. Tompkins, 304 U.S. 64 (1938).

One view of customary international law holds

that, post-Erie, it is federal common law. See

Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.

1995) (describing "settled proposition that

federal common law incorporates international

law."); In re Estate of Ferdinand E. Marcos Human

Rights Litigation, 978 F.2d 493, 502 (9th Cir.

1992) ("It is . . . well settled that the law of

nations is part of federal common law."). Another

leading view is that customary international law

is "like common law." See Restatement, sec. 111,

comment d. Under this theory, customary interna-

tional law is federal law that can arguably

supersede prior federal statutes. See, e.g.,

Louis Henkin, The Constitution and United States

Sovereignty: A Century of Chinese Exclusion and

Its Progeny, 100 Harv. L. Rev. 853, 876 (1987).

Both of these positions have come under fire.

See, e.g., Curtis A. Bradley & Jack L. Goldsmith,

Customary International Law as Federal Common

Law: A Critique of the Modern Position, 110 Harv.

L. Rev. 815 (1997) (arguing that federalism and

separation of powers principles are violated by

treating customary international law as federal

law); Arthur M. Weisburd, State Courts, Federal

Courts, and International Cases, 20 Yale J. Int’l

L. 1 (1995) (same); Phillip R. Trimble, A Revi-

sionist View of Customary International Law, 33

UCLA L. Rev. 665 (1986) (arguing that treating

customary international law as federal law con-

flicts with the principle of consent upon which

the United States was founded).

In light of the present uncertainty about the

precise domestic role of customary international

law, the statement that international law is part

of our law provides limited support for the pro

posed application of Charming Betsy. Even assum-

ing the most expansive domestic role for interna-

tional law is required by these early Supreme

Court precedents, however, it still does not

follow that Charming Betsy should be read so

broadly, for the reasons developed below.

/5 The fact that some jus cogens norms are beyond

question, such as the norm against slavery, is

beside the point. The fact that jus cogens norms

as a whole are subject to change without input

from any branch of the United States government

is reason to doubt that it is appropriate to

apply the Charming Betsy canon in the manner

suggested by Amicus.

/6 To the extent Sampson’s appeal of these claims

may cover Germany as well as the Claims Confer-

ence, we find that Sampson’s lack of standing,

explained below, is fatal to his claim.