(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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.