Federal Republic of Germany v. Philipp

(Slip Opinion) OCTOBER TERM, 2020 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FEDERAL REPUBLIC OF GERMANY ET AL. v. PHILIPP

ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 19–351. Argued December 7, 2020—Decided February 3, 2021

Respondents are the heirs of German Jewish art dealers who formed a

consortium during the waning years of the Weimar Republic to pur-

chase a collection of medieval relics known as the Welfenschatz. The

heirs allege that when the Nazi government rose to power, it unlaw-

fully coerced the consortium into selling the collection to Prussia for a

third of its value. The relics are currently maintained by the Stiftung

Preussischer Kulturbesitz (SPK), an instrumentality of the Federal

Republic of Germany, and displayed at a Berlin museum. After unsuc-

cessfully seeking compensation in Germany, the heirs brought several

common law property claims in United States District Court against

Germany and SPK (collectively Germany). Germany moved to dis-

miss, arguing that it was immune from suit under the Foreign Sover-

eign Immunities Act. As relevant, Germany asserted that the heirs’

claims did not fall within the FSIA’s exception to sovereign immunity

for “property taken in violation of international law,” 28 U. S. C.

§1605(a)(3), because a sovereign’s taking of its own nationals’ property

is not unlawful under the international law of expropriation. The heirs

countered that the exception did apply because Germany’s purchase of

the Welfenschatz was an act of genocide, and the relics were therefore

taken in violation of international human rights law. The District

Court denied Germany’s motion to dismiss, and the D. C. Circuit af-

firmed.

Held: The phrase “rights in property taken in violation of international

law,” as used in the FSIA’s expropriation exception, refers to violations

of the international law of expropriation and thereby incorporates the

domestic takings rule. Pp. 4–16.

2 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Syllabus

(a) The heirs contend that their claims fall within the FSIA’s excep-

tion for cases involving “property taken in violation of international

law,” §1605(a)(3)—a provision known as the expropriation exception—

because the forced sale of the Welfenschatz constituted an act of geno-

cide, and genocide is a violation of international human rights law.

Germany argues that the relevant international law is not the law of

genocide but the international law of expropriation, under which a for-

eign sovereign’s taking of its own nationals’ property remains a domes-

tic affair. Pp. 4–13.

(1) The “domestic takings rule” invoked by Germany derives from

the premise that international law customarily concerns relations

among states, not between states and individuals. Historically, a sov-

ereign’s taking of a foreign national’s property implicated interna-

tional law because it constituted an injury to the state of the alien’s

nationality. A domestic taking, by contrast, did not interfere with re-

lations among states. This domestic takings rule endured even as a

growing body of human rights law made states’ treatment of individual

human beings a matter of international concern. And those who criti-

cized the treatment of property rights under international law did so

on the ground that all sovereign takings, not just domestic takings,

were outside the scope of that law. This dispute over the existence of

international law constraints on sovereign takings eventually reached

the Court in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 436.

Hesitant to delve into this controversy, the Court instead invoked the

act of state doctrine. In response, Congress passed the Second Hick-

enlooper Amendment to the Foreign Assistance Act of 1964, which pro-

hibits United States courts from applying the act of state doctrine

where a “right[ ] to property is asserted” based upon a “taking . . . by

an act of that state in violation of . . . international law.” 22 U. S. C.

§2370(e)(2). Courts and commentators understood the Amendment to

permit adjudication of claims Sabbatino had avoided deciding, i.e.,

claims against other countries for expropriation of American-owned

property. But nothing in the Amendment purported to alter any rule

of international law, including the domestic takings rule. Congress

used nearly identical language when it crafted the FSIA’s expropria-

tion exception twelve years later. Based on this historical and legal

background, courts reached a “consensus” that the expropriation ex-

ception’s “reference to ‘violation of international law’ does not cover

expropriations of property belonging to a country’s own nationals.” Re-

public of Austria v. Altmann, 541 U. S. 677, 713 (BREYER, J., concur-

ring). Pp. 5–8.

(2) The heirs concede that the international law of expropriation

retained the domestic takings rule at the time of the FSIA’s enactment,

but they read “rights in property taken in violation of international

Cite as: 592 U. S. ____ (2021) 3

Syllabus

law” to incorporate any international norm, including international

human rights law, rather than merely the international law of expro-

priation. The text of the FSIA’s expropriation exception, however, sup-

ports Germany’s reading. The exception places repeated emphasis on

property and property-related rights, while injuries and acts associ-

ated with violations of human rights law, such as genocide, are notably

lacking—a remarkable omission if the provision was intended to pro-

vide relief for atrocities such as the Holocaust. A statutory phrase con-

cerning property rights most sensibly references the international law

governing property rights, rather than the law of genocide. The heirs’

position would arguably force courts themselves to violate interna-

tional law not only by ignoring the domestic takings rule, but also by

derogating international law’s preservation of sovereign immunity for

violations of human rights law. Germany’s interpretation of the ex-

ception is also more consistent with the FSIA’s express goal of codify-

ing the restrictive theory of sovereign immunity, 28 U. S. C. §1602, un-

der which immunity extends to a sovereign’s public, but not private,

acts. It would destroy the Act’s distinction between private and public

acts were the Court to subject all manner of sovereign public acts to

judicial scrutiny under the FSIA by transforming the expropriation ex-

ception into an all-purpose jurisdictional hook for adjudicating human

rights violations. Pp. 8–12.

(3) Other FSIA provisions confirm Germany’s position. The heirs’

approach would circumvent the reticulated boundaries Congress

placed in the FSIA with regard to bringing claims asserting human

rights violations. One FSIA exception, for example, provides jurisdic-

tion over claims “in which money damages are sought against a foreign

state for personal injury or death, or damage to or loss of property,”

but only where the relevant conduct “occurr[ed] in the United States.”

§1605(a)(5). And the FSIA’s terrorism exception eliminates sovereign

immunity for state sponsors of terrorism, but only for certain human

rights claims, brought by certain victims, against certain defendants.

§§1605A(a),(h). Such restrictions would be of little consequence if hu-

man rights abuses could be packaged as violations of property rights

and thereby brought within the expropriation exception. Pp. 12–13.

(b) The heirs’ counterarguments cannot overcome the text, context,

and history of the expropriation exception. They claim that the 2016

Foreign Cultural Exchange Jurisdictional Immunity Clarification

Act—which amends the FSIA to explain that participation in specified

“art exhibition activities” does not qualify as “commercial activity” un-

der the expropriation exception, §1605(h)—demonstrates that Con-

gress anticipated that Nazi-era claims could be adjudicated under the

exception. Congress’s effort to preserve sovereign immunity in a nar-

4 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Syllabus

row, particularized context, however, does not support the broad elim-

ination of sovereign immunity across all areas of law. Other statutes

aimed at promoting restitution to Holocaust victims, on which the

heirs rely, generally encourage redressing those injuries outside of

public court systems and do not speak to sovereign immunity. See,

e.g., Holocaust Expropriated Art Recovery Act of 2016, 130 Stat. 1524.

Pp. 14–15.

(c) This Court does not address Germany’s argument that the Dis-

trict Court was obligated to abstain from deciding the case on interna-

tional comity grounds or the heirs’ alternative argument that the sale

of the Welfenschatz is not subject to the domestic takings rule because

the consortium members were not German nationals at the time of the

transaction. Pp. 15–16.

894 F. 3d. 406, vacated and remanded.

ROBERTS, C. J., delivered the opinion for a unanimous Court.

Cite as: 592 U. S. ____ (2021) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–351

_________________

FEDERAL REPUBLIC OF GERMANY, ET AL.,

PETITIONERS v. ALAN PHILIPP, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[February 3, 2021]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

The Foreign Sovereign Immunities Act provides that for-

eign nations are presumptively immune from the jurisdic-

tion of United States courts. The statute, however, sets

forth several specific exceptions. One such exception pro-

vides that a sovereign does not enjoy immunity in any case

“in which rights in property taken in violation of interna-

tional law are in issue.” 28 U. S. C. §1605(a)(3). The ques-

tion presented is whether a country’s alleged taking of prop-

erty from its own nationals falls within this exception.

I

This case concerns several dozen medieval relics and de-

votional objects known as the Welfenschatz. The treasure

(“schatz”) of the German Welf dynasty, the pieces date back

to the early days of the Holy Roman Empire and occupy a

unique position in German history and culture. The collec-

tion was assembled within Germany’s Brunswick Cathe-

dral over the course of several centuries, before being

moved to a Hanoverian chapel in 1671 and later to Switzer-

land for safekeeping in the wake of World War I.

2 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

During the waning years of the Weimar Republic, a con-

sortium of three art firms owned by Jewish residents of

Frankfurt purchased the Welfenschatz from the Duke of

Brunswick. By 1931, the consortium had sold about half of

the collection’s pieces to museums and individuals in Eu-

rope and the United States, including many to the Cleve-

land Museum of Art, where they reside today.

Conditions facing the consortium changed dramatically

after the collapse of the German economy and the rise of the

Nazi government. After ascending to power, Hermann Goe-

ring—Adolf Hitler’s deputy and the Prime Minister of Prus-

sia—became interested in the remainder of the Welfen-

schatz. The complaint alleges that he employed a

combination of political persecution and physical threats to

coerce the consortium into selling the remaining pieces to

Prussia in 1935 for approximately one-third of their value.

Two of the consortium members fled the country following

the sale, and the third died in Germany shortly thereafter.

The United States took possession of the Welfenschatz in

the course of the occupation of Nazi Germany at the end of

the war, eventually turning the collection over to the

Federal Republic of Germany. For nearly 60 years, the

treasure has been maintained by Stiftung Preussischer

Kulturbesitz (SPK)—the Prussian Cultural Heritage Foun-

dation—and it is now displayed at a museum in Berlin.

SPK is an instrumentality of the Federal Republic.

Respondents are two United States citizens and a citizen

of the United Kingdom who trace their lineages back to the

three members of the consortium. The heirs first ap-

proached SPK claiming that the sale of the Welfenschatz to

the Prussian Government was unlawful. SPK conducted its

own investigation of the sale and determined that the

transaction occurred at a fair market price without coer-

cion.

In 2014, the parties agreed to submit the claim to the

German Advisory Commission for the Return of Cultural

Cite as: 592 U. S. ____ (2021) 3

Opinion of the Court

Property Seized as a Result of Nazi Persecution, Especially

Jewish Property. Germany established the Advisory Com-

mission under the Washington Conference Principles on

Nazi-Confiscated Art, an initiative spearheaded by the

United States to encourage the development of new mecha-

nisms for resolving Nazi-era claims. See Brief for United

States as Amicus Curiae 4. After hearing from expert wit-

nesses and reviewing documentary evidence, the Commis-

sion likewise concluded that the sale had occurred at a fair

price without duress.

Disappointed by the proceedings in Germany, the heirs

filed suit in Federal District Court in Washington, D. C.

They brought several common law property claims against

Germany and SPK, seeking $250 million in compensation.

Petitioners SPK and the Federal Republic of Germany—col-

lectively Germany—moved to dismiss the case. Relevant

here, Germany argued that it was immune from suit be-

cause the heirs’ claims did not fall within the FSIA’s excep-

tion to immunity for “property taken in violation of interna-

tional law.” See 28 U. S. C. §1605(a)(3); see also §1603(a)

(defining “foreign state” to include “an agency or instrumen-

tality of a foreign state”). In doing so, Germany reasoned

that the purchase of the Welfenschatz could not have vio-

lated international law because a sovereign’s taking of its

own nationals’ property is not unlawful under the interna-

tional law of expropriation. The heirs responded that the

exception did apply because Germany’s purchase of the

Welfenschatz was an act of genocide and the taking there-

fore violated the international law of genocide.

The District Court denied Germany’s motion, 248

F. Supp. 3d 59, 70–74 (DC 2017), and a panel of the D. C.

Circuit affirmed, 894 F. 3d 406 (2018). The panel agreed

with the heirs that the exception for property taken in vio-

lation of international law was satisfied because “genocide

perpetrated by a state even against its own nationals is a

4 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

violation of international law.” Id., at 410–411 (quoting Si-

mon v. Republic of Hungary, 812 F. 3d 127, 145 (CADC

2016); alterations omitted). The D. C. Circuit declined Ger-

many’s request for en banc review. 925 F. 3d 1349 (2019)

(per curiam).

Judge Katsas dissented from the denial of rehearing en

banc. In his view, the majority’s analysis erroneously

“ma[de] the district court sit as a war crimes tribunal to ad-

judicate claims of genocide,” while “clear[ing] the way for a

wide range of litigation against foreign sovereigns for public

acts committed within their own territories.” Id., at 1350.

We granted certiorari. 591 U. S. ___ (2020).

II

Enacted in 1976, the Foreign Sovereign Immunities Act

supplies the ground rules for “obtaining jurisdiction over a

foreign state in the courts of this country.” Argentine Re-

public v. Amerada Hess Shipping Corp., 488 U. S. 428, 443

(1989). The Act creates a baseline presumption of immun-

ity from suit. §1604. “[U]nless a specified exception ap-

plies, a federal court lacks subject-matter jurisdiction over

a claim against a foreign state.” Saudi Arabia v. Nelson,

507 U. S. 349, 355 (1993).

The heirs contend that their claims fall within the excep-

tion for “property taken in violation of international law,”

§1605(a)(3), because the coerced sale of the Welfenschatz,

their property, constituted an act of genocide, and genocide

is a violation of international human rights law. Germany

argues that the exception is inapplicable because the rele-

vant international law is the international law of prop-

erty—not the law of genocide—and under the international

law of property a foreign sovereign’s taking of its own na-

tionals’ property remains a domestic affair. This “domestic

takings rule” assumes that what a country does to property

belonging to its own citizens within its own borders is not

the subject of international law. See Bolivarian Republic of

Cite as: 592 U. S. ____ (2021) 5

Opinion of the Court

Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S.

___, ___ (2017) (slip op., at 10) (citing Restatement (Third)

of Foreign Relations Law of the United States §712 (1986)

(Restatement (Third))).

A

Known at the founding as the “law of nations,” what we

now refer to as international law customarily concerns re-

lations among sovereign states, not relations between

states and individuals. See Banco Nacional de Cuba v. Sab-

batino, 376 U. S. 398, 422 (1964) (“The traditional view of

international law is that it establishes substantive princi-

ples for determining whether one country has wronged an-

other.”).

The domestic takings rule invoked by Germany derives

from this premise. Historically, a sovereign’s taking of a

foreigner’s property, like any injury of a foreign national,

implicated the international legal system because it “con-

stituted an injury to the state of the alien’s nationality.”

Bradley & Goldsmith, Customary International Law as

Federal Common Law: A Critique of the Modern Position,

110 Harv. L. Rev. 815, 831, n. 106 (1997); see S. Friedman,

Expropriation in International Law 5, 139 (1953). Such

mistreatment was an affront to the sovereign, and “there-

fore the alien’s state alone, and not the individual, could in-

voke the remedies of international law.” Bradley, supra, at

831, n. 106. A domestic taking by contrast did not interfere

with relations among states. See E. de Vattel, 3 The Law

of Nations §81, p. 138 (C. Fenwick transl. 1916) (“Even the

property of individuals, taken as a whole, is to be regarded

as the property of the Nation with respect to other Na-

tions.”); see also United States v. Belmont, 301 U. S. 324,

332 (1937) (“What another country has done in the way of

taking over property of its nationals . . . is not a matter for

judicial consideration here.”).

6 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

The domestic takings rule has deep roots not only in in-

ternational law but also in United States foreign policy.

Secretary of State Cordell Hull most famously expressed

the principle in a 1938 letter to the Mexican Ambassador

following that country’s nationalization of American oil

fields. The Secretary conceded “the right of a foreign gov-

ernment to treat its own nationals in this fashion if it so

desires. This is a matter of domestic concern.” Letter from

C. Hull to C. Nájera (July 21, 1938), reprinted in 5 Foreign

Relations of the United States Diplomatic Papers 677

(1956). The United States, however, could not “accept the

idea” that “these plans can be carried forward at the ex-

pense of our citizens.” Ibid.

The domestic takings rule endured even as international

law increasingly came to be seen as constraining how states

interacted not just with other states but also with individ-

uals, including their own citizens. The United Nations Uni-

versal Declaration of Human Rights and Convention on the

Prevention of Genocide became part of a growing body of

human rights law that made “how a state treats individual

human beings . . . a matter of international concern.” Brad-

ley, supra, at 832 (quoting Restatement (Third), pt. VII, In-

troductory Note, at 144–145). These human rights docu-

ments were silent, however, on the subject of property

rights. See Friedman, supra, at 107. International tribu-

nals therefore continued to maintain that international law

governed “confiscation of the property of foreigners,” but

“measures taken by a State with respect to the property of

its own nationals are not subject to these principles.” Gud-

mundsson v. Iceland, Appl. No. 511/59, 1960 Y. B. Eur.

Conv. on H. R. 394, 423–424 (decision of the European Com-

mission on Human Rights).

Some criticized the treatment of property rights under in-

ternational law, but they did so on the ground that all sov-

ereign takings were outside the scope of international law,

Cite as: 592 U. S. ____ (2021) 7

Opinion of the Court

not just domestic takings. In the 1950s and 1960s, a grow-

ing chorus of newly independent states, particularly in

Latin America, resisted any foreign restraint on their abil-

ity to nationalize property. See Young, The Story of Banco

Nacional de Cuba v. Sabbatino, in Federal Courts Stories

422–423 (V. Jackson & J. Resnik eds. 2010). Put differ-

ently, states and scholars disagreed over whether interna-

tional law provided a remedy for a sovereign’s interference

with anyone’s property rights, not whether domestic tak-

ings were outside the purview of international law. That

principle was beyond debate.

We confronted this dispute over the existence of interna-

tional law constraints on sovereign takings in Sabbatino,

where we were asked to decide claims arising out of Cuba’s

nationalization of American sugar interests in 1960. 376

U. S., at 403. This Court observed that there were “few if

any issues in international law today on which opinion

seems to be so divided as the limitations on a state’s power

to expropriate the property of aliens.” Id., at 428 (emphasis

added). Hesitant to delve into this controversy, we instead

invoked the act of state doctrine, which prevents United

States courts from determining the validity of the public

acts of a foreign sovereign. Id., at 436.

Congress did not applaud the Court’s reticence. Within

months of Sabbatino, it passed the Second Hickenlooper

Amendment to the Foreign Assistance Act of 1964. The

Amendment prohibits United States courts from applying

the act of state doctrine where a “right[ ] to property is as-

serted” based upon a “taking . . . by an act of that state in

violation of the principles of international law.” 22 U. S. C.

§2370(e)(2). Courts and commentators understood the

Amendment to permit adjudication of claims the Sabbatino

decision had avoided—claims against foreign nations for ex-

propriation of American-owned property. But nothing in

the Amendment purported to alter any rule of international

law, including the domestic takings rule. See F. Palicio y

8 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (SDNY

1966) (interpreting the Hickenlooper Amendment to dis-

place Sabbatino but dismissing the suit on the ground that

“confiscations by a state of the property of its own nationals,

no matter how flagrant . . . , do not constitute violations of

international law”), summarily aff ’d, 375 F. 2d 1011 (CA2

1967); Banco Nacional de Cuba v. Farr, 383 F. 2d 166, 173–

176 (CA2 1967); Restatement (Second) of Foreign Relations

Law of the United States §185 (1965) (Restatement (Sec-

ond)); Lillich, The Proper Role of Domestic Courts in the

International Legal Order, 11 Va. J. Int’l L. 9, 29, 34 (1970).

Congress used language nearly identical to that of the

Second Hickenlooper Amendment 12 years later in crafting

the FSIA’s expropriation exception. As noted, it provides

that United States courts may exercise jurisdiction over a

foreign sovereign in any case “in which rights in property

taken in violation of international law are in issue.” 28

U. S. C. §1605(a)(3).

Based on this historical and legal background, courts ar-

rived at a “consensus” that the expropriation exception’s

“reference to ‘violation of international law’ does not cover

expropriations of property belonging to a country’s own na-

tionals.” Republic of Austria v. Altmann, 541 U. S. 677, 713

(2004) (BREYER, J., concurring).

B

The heirs urge us to change course. They read “rights in

property taken in violation of international law” not as an

invocation of the international law governing property

rights, but as a broad incorporation of any international

norm. Focusing on human rights law, the heirs rely on the

United Nations Convention on Genocide, which defines

genocide as “deliberately inflicting on [a] group conditions

of life calculated to bring about its physical destruction in

whole or in part.” Convention on the Prevention and Pun-

ishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 78

Cite as: 592 U. S. ____ (2021) 9

Opinion of the Court

U. N. T. S. 277, 280. According to the heirs, the forced sale

of their ancestors’ art constituted an act of genocide because

the confiscation of property was one of the conditions the

Third Reich inflicted on the Jewish population to bring

about their destruction.

We need not decide whether the sale of the consortium’s

property was an act of genocide, because the expropriation

exception is best read as referencing the international law

of expropriation rather than of human rights. We do not

look to the law of genocide to determine if we have jurisdic-

tion over the heirs’ common law property claims. We look

to the law of property.

And in 1976, the state of that body of law was clear: A

“taking of property” could be “wrongful under international

law” only where a state deprived “an alien” of property. Re-

statement (Second) §185; see also Permanent Mission of In-

dia to United Nations v. City of New York, 551 U. S. 193,

199–200 (2007) (noting our consistent practice of interpret-

ing the FSIA in keeping with “international law at the time

of the FSIA’s enactment” and looking to the contemporary

Restatement for guidance). As explained above, this rule

survived the advent of modern human rights law, including

the United Nations Convention on Genocide. Congress

drafted the expropriation exception and its predecessor, the

Hickenlooper Amendment, against that legal and historical

backdrop. See Taggart v. Lorenzen, 587 U. S. ___, ___

(2019) (slip op., at 5).

The heirs concede that at the time of the FSIA’s enact-

ment the international law of expropriation retained the do-

mestic takings rule. See Restatement (Second) §192. But

they argue that Congress captured all of international law

in the exception—not just the international law of expropri-

ation—and that other areas of international law do not

shield a sovereign’s actions against its own nationals. In

support of that assertion, they note that the exception con-

cerns “property taken in violation of international law”—

10 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

not “property takings in violation of international law.” Tr.

of Oral Arg. 70. This distinction between “takings” and

“taken,” they say, is the difference between incorporating

the specific international law governing takings of property

and incorporating international law writ large. Ibid.

We would not place so much weight on a gerund. The text

of the expropriation exception as a whole supports Ger-

many’s reading. In its entirety the clause provides that

United States courts may exercise jurisdiction over a for-

eign sovereign in any case

“in which rights in property taken in violation of inter-

national law are in issue and that property or any prop-

erty exchanged for such property is present in the

United States in connection with a commercial activity

carried on in the United States by the foreign state; or

that property or any property exchanged for such prop-

erty is owned or operated by an agency or instrumen-

tality of the foreign state and that agency or instru-

mentality is engaged in a commercial activity in the

United States.” 28 U. S. C. §1605(a)(3).

The exception places repeated emphasis on property and

property-related rights, while injuries and acts we might

associate with genocide are notably lacking. That would be

remarkable if the provision were intended to provide relief

for atrocities such as the Holocaust. A statutory phrase

concerning property rights most sensibly references the in-

ternational law governing property rights, rather than the

law of genocide.

What is more, the heirs’ interpretation of the phrase

“taken in violation of international law” is not limited to vi-

olations of the law of genocide but extends to any human

rights abuse. Their construction would arguably force

courts themselves to violate international law, not only ig-

noring the domestic takings rule but also derogating inter-

Cite as: 592 U. S. ____ (2021) 11

Opinion of the Court

national law’s preservation of sovereign immunity for vio-

lations of human rights law. As the International Court of

Justice recently ruled when considering claims brought by

descendants of citizens of Nazi-occupied countries, “a State

is not deprived of immunity by reason of the fact that it is

accused of serious violations of international human rights

law.” Jurisdictional Immunities of the State (Germany v.

Italy), 2012 I. C. J. 99, 139 (Judgt. of Feb. 3); see also Brad-

ley & Goldsmith, Foreign Sovereign Immunity, Individual

Officials, and Human Rights Litigation, 13 Green Bag 2d 9,

21 (2009). Respondents would overturn that rule whenever

a violation of international human rights law is accompa-

nied by a taking of property.

Germany’s interpretation of the exception is also more

consistent with the FSIA’s express goal of codifying the re-

strictive theory of sovereign immunity. §1602. Under the

absolute or classical theory of sovereign immunity, foreign

sovereigns are categorically immune from suit. Altmann,

541 U. S., at 690. Under the restrictive view, by contrast,

immunity extends to a sovereign’s public but not its private

acts. Ibid. Most of the FSIA’s exceptions, such as the ex-

ception for “commercial activity carried on in the United

States,” comport with the overarching framework of the re-

strictive theory. §1605(a)(2).

It is true that the expropriation exception, because it per-

mits the exercise of jurisdiction over some public acts of ex-

propriation, goes beyond even the restrictive view. In this

way, the exception is unique; no other country has adopted

a comparable limitation on sovereign immunity. Restate-

ment (Fourth) of Foreign Relations Law of the United

States §455, Reporters’ Note 15 (2017).

History and context explain this nonconformity. As

events such as Secretary Hull’s letter and the Second Hick-

enlooper Amendment demonstrate, the United States has

long sought to protect the property of its citizens abroad as

12 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

part of a defense of America’s free enterprise system. Sab-

batino, 376 U. S., at 430.

Given that the FSIA “largely codifies” the restrictive the-

ory, however, we take seriously the Act’s general effort to

preserve a dichotomy between private and public acts. Nel-

son, 507 U. S., at 359 (internal quotation marks omitted).

It would destroy that distinction were we to subject all man-

ner of sovereign public acts to judicial scrutiny under the

FSIA by transforming the expropriation exception into an

all-purpose jurisdictional hook for adjudicating human

rights violations. See Helmerich, 581 U. S., at ___ (slip op.,

at 9) (rejecting the suggestion that Congress intended the

expropriation exception to operate as a “radical departure”

from the “basic principles” of the restrictive theory).

C

Other provisions of the FSIA confirm Germany’s position.

The heirs’ approach, for example, would circumvent the re-

ticulated boundaries Congress placed in the FSIA with re-

gard to human rights violations. Where Congress did tar-

get injuries associated with such acts, including torture or

death, it did so explicitly and with precision. The noncom-

mercial tort exception provides jurisdiction over claims “in

which money damages are sought against a foreign state for

personal injury or death, or damage to or loss of property,”

but only where the relevant conduct “occurr[ed] in the

United States.” §1605(a)(5). Similarly, the terrorism ex-

ception eliminates sovereign immunity for state sponsors of

terrorism but only for certain human rights claims, brought

by certain victims, against certain defendants. §§1605A(a),

(h).

These restrictions would be of little consequence if hu-

man rights abuses could be packaged as violations of prop-

erty rights and thereby brought within the expropriation

exception to sovereign immunity. And there is no reason to

suppose Congress thought acts of genocide or other human

Cite as: 592 U. S. ____ (2021) 13

Opinion of the Court

rights violations to be especially deserving of redress only

when accompanied by infringement of property rights. We

have previously rejected efforts to insert modern human

rights law into FSIA exceptions ill suited to the task. Nel-

son, 507 U. S., at 361 (commercial activity exception does

not encompass claims that foreign state illegally detained

and tortured United States citizen, “however monstrous

such abuse undoubtedly may be”). We do so again today.

We have recognized that “ ‘United States law governs do-

mestically but does not rule the world.’ ” Kiobel v. Royal

Dutch Petroleum Co., 569 U. S. 108, 115 (2013) (quoting Mi-

crosoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007)). We

interpret the FSIA as we do other statutes affecting inter-

national relations: to avoid, where possible, “producing fric-

tion in our relations with [other] nations and leading some

to reciprocate by granting their courts permission to em-

broil the United States in expensive and difficult litigation.”

Helmerich, 581 U. S., at ___ (slip op., at 12) (internal quota-

tion marks omitted); RJR Nabisco, Inc. v. European Com-

munity, 579 U. S. ___, ___–___ (2016) (slip op., at 7–8) (in-

terpreting civil Racketeer Influenced and Corrupt

Organizations Act “to avoid the international discord that

can result when U. S. law is applied to conduct in foreign

countries”); Kiobel, 569 U. S., at 116 (interpreting Alien

Tort Statute so as not to “adopt an interpretation of U. S.

law that carries foreign policy consequences not clearly in-

tended by the political branches”).

As a Nation, we would be surprised—and might even in-

itiate reciprocal action—if a court in Germany adjudicated

claims by Americans that they were entitled to hundreds of

millions of dollars because of human rights violations com-

mitted by the United States Government years ago. There

is no reason to anticipate that Germany’s reaction would be

any different were American courts to exercise the jurisdic-

tion claimed in this case.

14 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

III

The heirs offer several counterarguments, but none can

overcome the text, context, and history of the expropriation

exception.

First, the heirs rely on the 2016 Foreign Cultural Ex-

change Jurisdictional Immunity Clarification Act. The Act

amends the FSIA to explain that participation in specified

“art exhibition activities” does not qualify as “commercial

activity” within the meaning of the expropriation exception.

28 U. S. C. §1605(h). This clarification responded to deci-

sions of federal courts holding to the contrary, see, e.g.,

Malewicz v. Amsterdam, 362 F. Supp. 2d 298, 313–315 (DC

2005), and enables foreign states to loan art to American

museums without fear that the work’s presence in the

United States will subject them to litigation here. The pro-

vision, however, does not apply to claims brought against

Germany arising out of the period from January 1933

through May 1945. §§1605(h)(2), (3). According to the

heirs, this clarification of the expropriation exception shows

that Congress anticipated Nazi-era claims could be adjudi-

cated by way of that exception.

We agree with the heirs, but only to a limited extent.

Claims concerning Nazi-era art takings could be brought

under the expropriation exception where the claims involve

the taking of a foreign national’s property. See, e.g., Alt-

mann, 541 U. S., at 680–682 (claim concerning Austrian

taking of Czechoslovakian national’s art brought under the

expropriation exception). As for the heirs’ suggestion that

the Clarification Act demonstrates that Congress meant to

abrogate immunity for any Nazi-era claim, however, we do

not interpret Congress’s effort to preserve sovereign im-

munity in a narrow, particularized context—art shows—as

supporting the broad elimination of sovereign immunity

across all areas of law. The Clarification Act did not pur-

port to amend the critical phrase here—“taken in violation

of international law”—and we will not construe it to do so.

Cite as: 592 U. S. ____ (2021) 15

Opinion of the Court

The heirs also rely on other statutes aimed at promoting

restitution to the victims of the Holocaust. The Acts include

the Holocaust Victims Redress Act of 1998, 112 Stat. 15; the

Holocaust Expropriated Art Recovery Act of 2016 (HEAR

Act), 130 Stat. 1524; and the Justice for Uncompensated

Survivors Today (JUST) Act of 2017, Pub. L. 115–171, 132

Stat. 1288. These laws, the heirs suggest, demonstrate

Congress’s desire for American courts to hear disputes

about Holocaust-era property claims.

The statutes do promote restitution for the victims of the

Holocaust, but they generally encourage redressing those

injuries outside of public court systems. The HEAR Act, for

example, states that “the use of alternative dispute resolu-

tion” mechanisms will “yield just and fair resolutions in a

more efficient and predictable manner” than litigation in

court. §2(8), 130 Stat. 1525. Germany has adopted just

such an alternative mechanism, the Advisory Commission,

and the heirs availed themselves of that opportunity to re-

solve their claims. Ibid. See also Brief for Petitioners 5

(“[T]he German government has provided roughly $100 bil-

lion (in today’s dollars) to compensate Holocaust survivors

and other victims of the Nazi era.”).

These laws do not speak to sovereign immunity. That is

the province of the FSIA, which provides the carefully con-

structed framework necessary for addressing an issue of

such international concern. The heirs have not shown that

the FSIA allows them to bring their claims against Ger-

many. We cannot permit them to bypass its design.

IV

We hold that the phrase “rights in property taken in vio-

lation of international law,” as used in the FSIA’s expropri-

ation exception, refers to violations of the international law

of expropriation and thereby incorporates the domestic tak-

ings rule.

We do not address Germany’s argument that the District

16 FEDERAL REPUBLIC OF GERMANY v. PHILIPP

Opinion of the Court

Court was obligated to abstain from deciding the case on

international comity grounds. Nor do we consider an alter-

native argument noted by the heirs: that the sale of the

Welfenschatz is not subject to the domestic takings rule be-

cause the consortium members were not German nationals

at the time of the transaction. See Brief for Respondents

27–28; but see Brief for Petitioners 19, n. 7 (claiming that

the heirs forfeited this argument). The Court of Appeals

should direct the District Court to consider this argument,

including whether it was adequately preserved below.

The judgment of the Court of Appeals for the D. C. Circuit

is vacated, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.