Courthouse Steps Decision Teleforum: Federal Republic of Germany v. Philipp

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On February 3, 2021, the Supreme Court unanimously decided Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon.  

The plaintiffs in Federal Republic of Germany are heirs of German Jewish art collectors who purchased a collection of medieval relics termed the Welfenschatz.  As the Third Reich took control of Germany and began assimilating the great cultural achievements of the West, the Nazis government bought the Welfenschatz for one third of its value.   Following World War II, the Welfenschatz changed hands, ultimately landing in a Berlin museum owned by the Federal Republic of Germany and maintained by the Stiftung Preussischer Kulturbesitz (SPK).

After unsuccessfully seeking compensation from Germany, the heirs to the original owners brought common law property claims against Germany and SPK in United States District Court.  Generally, the Foreign Sovereign Immunities Act (FSIA) would bar such a suit; Germany argued that the possibly applicable exception for “property taken in violation of international law” did not apply to domestic takings where a government takes the property of its own citizens.  The heirs argued Germany’s coerced taking was an act of genocide bringing their suit within the exception since genocide violates international human rights law.

The Court relied on the long established history of international law to determine the phrase “property taken in violation of international law,” refers specifically to the law of expropriation, which includes the domestic taking rule.  Violations of international human rights law do not fall within the phrase, so Germany retains sovereign immunity under FSIA and the heirs cannot recover in U.S. Courts.  Relying on Federal Republic of Germany, the Court issued a per curiam decision in Republic of Hungary, directing the United States Court of Appeals for the D.C. Circuit to decide the case in light of its ruling in Federal Republic of Germany


Professor Alberto R. Coll, Vincent de Paul Professor of Law and Director of Global Engagement, DePaul College of Law 


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Evelyn Hildebrand:  Welcome to The Federalist Society’s teleforum conference call. This afternoon, March 22, we discuss the Supreme Court’s decision in Federal Republic of Germany v. Philipp. My name is Evelyn Hildebrand, and I am an Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today’s call.


      Today we are fortunate to have with us Professor Alberto Coll. Professor Coll is the Director of Global Engagement and the Vincent de Paul Professor of Law at the DePaul University College of Law. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Professor Coll, the floor is yours.


Prof. Alberto Coll:  Thank you. Good morning. It’s a great pleasure to be with you and all our audience to discuss the case of Federal Republic of Germany v. Philipp and its companion case that was also decided on the same day by the Supreme Court, Republic of Hungary v. Simon.


      Now, in Germany v. Philipp, you have plaintiffs who are the heirs, descendants of Jewish art dealers, who, in the late 1920s in Germany, acquired a vast and precious collection of relics from medieval times knows as the Welfenschatz, the Guelph Treasure. This is an incredibly valuable treasure. It belonged to the Duke of Brunswick, who sold that collection to these art dealers.


      Over the subsequent years, the dealers sold a number of items from it. And then, after the Nazi takeover of Germany, the German government, especially through the Minister of Prussia, Mr. Goering, Hermann Goering, pressured the art dealers into selling the collection to Prussia. Following the forced sale, this collection was given by Goering to Adolf Hitler as a gift from the German people.


      The dealers claimed at the time that the sale was forced. Supposedly, the artifacts were sold for a third of their real market value. The heirs today allege that this forced sale was part of the genocide campaign that Nazi Germany undertook against the Jewish people.


      Initially, the dealers’ heirs, the plaintiffs in this case, attempted to use various systems present in Germany today for Holocaust related claims. They made official claims to a relevant commission arguing that they were owed compensation for the forced sale of the Guelph Treasure by their ancestors to the Nazi regime.


      After looking very carefully at their claims, the German commission rejected the claims. It argued that the sale had not been forced, and that the market value at the time for the Guelph Treasure was depressed by the fact that not only Germany but the entire world were in the midst of the Great Depression. Eventually, the heirs decided to bring a claim against Germany in U.S. federal court in the District of Columbia. The district court agreed with the claims of the plaintiffs.


      Germany interposed two major defenses. Number one, the defense of comity, the idea that German institutions and German courts were the appropriate place to handle these claims. After all, the alleged taking had taken place in Germany, and it was a taking from persons who were German at the time.


      The second defense that Germany interposed in federal district court was that the Foreign Sovereign Immunities Act exception for expropriation taken in violation of international law did not apply here. In other words, Germany raised the defense of foreign sovereign immunity. As a foreign sovereign state, Germany argued it was immune from the jurisdiction of federal courts.


      The plaintiffs, of course, countered back that this case was subject to the expropriation exception. The Foreign Sovereign Immunities Act provides an exception to the rule of foreign sovereign immunity when it involves property taken in violation of international law. And the plaintiffs argued that this property was taken in violation of international law because it was taken as part of a long pattern that was part of the genocide against the Jewish people, and that the genocide against the Jewish people was a violation of international law, and therefore, this taking, as part of that genocide, was a taking in violation of international law.


      Germany countered back that the exception of property taken in violation of international law applied only to the standard customary definition of property takings, property takings from foreign nationals; that is, takings by a state of property belonging to persons who at the time were foreign nationals. And Germany argued that that was the exception covered by the FSIA, the Foreign Sovereign Immunities Act.


      The district court agreed with the plaintiffs, as did also the court of appeals for the District of Columbia. And so the case went to the Supreme Court of the United States. And the Supreme Court of the United States agreed with the plaintiffs -- no, it did not agree with the plaintiffs. It disagreed with the Federal Republic of Germany. It agreed with Germany’s contention that when the FSIA was crafted and passed by Congress in 1976, what Congress intended was the takings of property by a state of the property of foreign nationals, which under traditional notions, under customary notions of international law, have been considered to be violations of international law and violations of the obligation to protect the property of foreign persons.


      The Supreme Court rejected the plaintiffs’ contention that genocide claims were covered by the FSIA. The Court’s opinion on this was unanimous, which is quite interesting in itself. There were many concerns among a number of justices at the oral argument. For example, Justice Breyer, one of the most liberal members of the Court, expressed his concern that if the Court agreed with the plaintiffs’ claims and agreed that genocide claims could be heard in a U.S. federal court against Germany regarding property taken by Germany on German soil from German nationals, that this would open the U.S. courts to a huge tsunami of litigation and of claims from all over the world.


      In particular, in oral arguments, Justice Breyer referred to the possibility that South African nationals might come into U.S. federal court and claim that under apartheid, property had been taken from them in the course of major human rights violations related to apartheid, and that those violations had not been remedied by their home country of South Africa. Justice Breyer pointed out that, of course, South Africa has had its own system in place to address such human rights violations and such property takings, as indeed Germany has, and that for U.S. courts to start validating such potential claims by South African nationals would disrupt foreign relations between the United States and South Africa.


      The Court’s unanimous opinion was that the FSIA’s exception to foreign sovereign immunity referring to property taken in violation of international law refers to property taken from nationals of foreign countries. And at the time, the persons whose property was taken, allegedly by the Nazi regime, were either German nationals, or in plausible circumstances, they were stateless, assuming, as the plaintiffs claimed in oral argument, that they were no longer considered citizens of Germany by the Third Reich, these persons were not citizens of foreign countries. At most, they were stateless, and thus, they were not entitled to the standard protections of customary international law applying to property takings from a state.


      The companion case of Hungary v. Simon revolved around somewhat different circumstances. The claims brought by some Holocaust survivors from Hungary involved the takings of property that Jewish persons suffered as they were rounded up in Hungary in 1944 and transported by the Hungarian railways to extermination camps in various locations throughout the Nazi empire in Central Europe. The claimants argued that in the process of being rounded up and being forced to board these trains, they had a great deal of their property stripped from them prior to boarding the trains that led them to the extermination camps.


      The plaintiffs argued that the State of Hungary, as the owner and operator of the Hungarian railways, was those responsible for these property takings, and that these property takings had taken place in the course of a genocidal campaign against the Jewish people, including the persons whose property was taken from them as they were rounded up to board the trains.


      The district court in D.C. initially argued with Hungary. It argued with Hungary’s claim that such claims as the plaintiffs were presenting were covered and definitively settled by the peace treaty between the United States and the other allies and Hungary at the end of World War II. Hungary made the argument that the treaty’s provisions were comprehensive and definitive, and that they barred any other future claims involving Hungary’s conduct during World War II.


      The federal court at the district level agreed with Hungary’s claim. But the district court of appeals disagreed with the district court on two major grounds. Number one, the court of appeals argued that the treaty of peace between Hungary and the victorious Allies did not foreclose all claims involving Hungary’s actions in World War II. It was not a definitive, complete closure of all claims. It did not provide the only mechanism for settling such claims.


      And secondly, the district court of appeals judgement was also overruled on the grounds that the conduct at stake had taken place in the course of a genocide, and therefore, in spite of Hungary’s efforts also to raise the bar of foreign sovereign immunity, these kinds of claims were covered by the exception regarding property taken in violation of international law as the property belonging to these persons had been taken in the course of a genocide, which clearly is a violation of international law.


      The Supreme Court decided the Philipp case and provided a very comprehensive opinion, again, a unanimous opinion, rejecting the plaintiffs’ claims, and disposed of the Simon case in a few lines, in which it stated that the same considerations applying to its decision in Germany v. Philipp applied similarly to Hungary v. Simon. In other words, in both cases, the takings of property covered by the FSIA referred to takings of the property of persons who at the time were foreign nationals. It did not address takings of property who at the time were citizens of the country whose government took the property.


      The Court left open the possibility that some of the persons in the Simon case might not have been Hungarian nationals, and it asked the district court to examine that and determine the facts on that issue. Also, with regards to Germany v. Philipp, the Court asked the lower court to determine whether Germany’s argument about comity being applicable was relevant here, and secondly, whether the Jewish art dealers whose heirs were the plaintiffs in the case were all German nationals at the time or not.


      It seems on the basis of the facts argued at the oral argument that, indeed, again, the Jewish art dealers at the time of the forced sale were all German nationals. Or, if they were no longer citizens of Germany because of the Third Reich’s laws, then they were stateless. They were not citizens of any other foreign country.


      So these cases suggest at a very broad level that the Supreme Court -- and the Supreme Court’s language in Philipp is very, very strong on this issue. The Supreme Court unanimously is very unwilling to open the federal courts to human rights claims involving actions by foreign governments against persons who at the time of the violations were nationals of that country and where the alleged human rights violations took place on that foreign country’s soil.


      The Court’s view, which has increasingly been asserted since the opinion of Kiobel v. Royal Dutch Shell back in 2013 is that there is a strong presumption against extraterritoriality in U.S. legislation, and that the federal courts of the United States are not an appropriate venue for the resolution of claims under international human rights law involving events that took place on foreign country’s soil, involving foreign plaintiffs, and involving property or human rights violations that took place in that foreign country’s soil, and that for the federal courts to become involved in such human rights litigation would complicate U.S. foreign relations immensely, as Chief Justice Roberts argued quite persuasively here in Republic of Germany v. Philipp, and as Justice Breyer with his example of South Africa reminded counsel during oral argument before the Supreme Court.


      The Supreme Court made it very clear in this opinion that the Foreign Sovereign Immunities Act has to be read in light of what Congress very specifically intended at the time, and at the time of its drafting and implementation by Congress in 1976. What Congress had in mind was the customary traditional understanding in international law of property takings, property takings, for example, referred to in the Sabbatino case in 1962 and other similar property takings, as opposed to generalized human rights violations, generalized violations of national human rights law that might involve property takings.


      Otherwise, the Court argued, under the hook of property, you could have all kinds of international human rights issues being brought into the U.S. courts, even though the parties at the time of the property takings were foreign, the takings took place on a foreign soil, and the actions and human rights violations were done by a foreign government against its own nationals or people under its jurisdiction who at the time were nationals of that state.


      So the Court in these two companion cases very much pushed back against what we might call the efforts to bring into U.S. courts human rights cases which might have a property dimension. And in a footnote in the opinion, of course, the Court differentiated the Altmann case from the Philipp case by noting that in the Altmann case, the property at issue, the famous paintings by Gustav Klimt of Adele Bloch-Bauer, were owned by a Czechoslovak national. Maria Altmann’s uncle, Adele Bloch-Bauer’s husband, Ferdinand Bloch-Bauer, the owner of these paintings at stake in the litigation was a Czechoslovak national.


      And so the claim was that Austria, in expropriating these paintings, had indeed expropriated the property of a foreign national and thereby, by not providing adequate and just compensation, engaged in a property taking in violation of international law.


      At this point, I’d be delighted to take any questions that any of our listeners may have regarding both of these extremely interesting cases. Thank you.


Evelyn Hildebrand:  Wonderful. Thank you so much. We will now go to audience questions. And at this point, I’ll hand the floor back over to you, Professor Coll, for any additional remarks you’d like to make while we are waiting for audience members to join the queue to ask a question.


Prof. Alberto Coll:  Yes, thank you. The one issue that has been very closely tied to these human rights litigation cases and Holocaust claims cases is that, for example, in the case of Germany, there has been a major effort to establish institutions within Germany and legal processes to handle these kinds of claims. And the United States has been part of such efforts, going all the way back to the 1990s to efforts to create within Germany, efforts in support -- German effort to create a foundation funded generously by major German corporations and the German government to hear Holocaust related property claims that might be brought, including by persons who today are U.S. nationals.


      And of course, it was the very famous case of Garamendi, decided by the Supreme Court of the United States in 2003, in which California tried to tinker with that process by establishing requirements for German insurance companies operating in the states to disclose insurance policies that were in place during the Holocaust or Nazi era. And the Supreme Court very much pushed back against that and referred to this agreement between the United States and Germany that favored the bringing up of such claims within the established German system for resolving such claims, as opposed to having the states, in this case, California, introducing itself into what is a very delicate and complicated process that, again, affects the United States relations with foreign countries.


Evelyn Hildebrand:  We do have a caller in the queue if you’re ready to take a question at this point, Professor.


Caller 1:  I was curious whether the Court looked at the commercial transaction of the sale aspect, that it was not a taking but rather a commercial sale, looking at the 1929 sale price and the fact that the owners were trying to sell them on the open market rather than holding them as a family or heritage collection. Thank you.


Prof. Alberto Coll:  The Supreme Court’s opinion does not go into that issue at all. And the district court looked at the arguments pretty much on face value of the plaintiffs, that this had been a forced sale.


      Now, the German commission that had looked at this claim in Germany looked at all these issues in greater detail. For example, they looked at the problem, okay, how much was this really worth? And they pointed out, well, it’s, of course, very hard to put a price. And as you pointed out, the price that you can get from the collection may vary depending on whether you’re willing to keep this together as a collection or whether you’re willing to sell items separately, but also the time of the sale.


      And when the sale took place—this was in the early 1930s—the German economy was still in the throes of the Great Depression, as was, indeed, were the economies of Europe and the United States. So the German commission determined that the price -- the real market value of this art collection would not have been the same as it had been in 1929 at the peak of the great boom of the ’20s, and that, therefore, it is not clear how much of a lower price the owners received.


      But the Supreme Court really looked at that as an ancillary issue because, in essence, if you look at the Court’s opinion, the Court’s opinion is, look, even if this was a forced sale in the sense that Hermann Goering paid, let’s say, 20 percent less, or 30 percent less, or 40 percent less than the collection was really worth, this was a property taking by the German government of German nationals, and therefore, this is not something that is covered by the exception of expropriation property taken in violation of international law in the Foreign Sovereign Immunities Act.


      And now, at oral argument, of course, counsel for the plaintiff said, “Well, these dealers were no longer German nationals because Germany had passed a series of laws restricting Jewish citizenship rights.” But what is not clear is whether -- yeah, indeed, their rights had been restricted, but what it not clear is whether at the time of the sale, they had ceased to be German nationals. They still may have been German nationals with restricted rights, but nevertheless German nationals.


      And then if you go a step further and say, well, they were no longer even German nationals, which is what the Supreme Court asked the U.S. district court to determine with some degree of definitiveness. Then what nationality were they? And there’s no evidence at all that they had acquired a different nationality at that point, so they may have been stateless.


      In other words, persons who had lost their nationality but were still stateless, in which case, again, the traditional notion of international law which the Supreme Court underlined here would still say, well, if you’re stateless, then this is not a property taken in violation of international law. For a property taking to be in violation of international law, it has to be a taking by Germany of a Czech national’s property or a Polish national’s property, etc., etc.


      So really, the question of how much of it was a forced sale is very ancillary to the key issue of that these were German nationals at the time the property taking took place. So in essence, the Court is saying, “Look, even if Hermann Goering had stepped in and just seized their property without any pretense at compensation, this is not a property taking in violation of international law.” But again, that’s another issue.


Evelyn Hildebrand:  Thank you. While we’re waiting for another question to file into the queue, I wanted to ask, do you know, Professor, are there other cases or other plaintiffs who are going to rely on this -- well, not rely, but perhaps be affected by the decision from the Court?


Prof. Alberto Coll:  That is something that I would not be able to tell you about. I’m sure there were a number of plaintiffs in waiting here who have been very disappointed by the Supreme Court’s ruling. And it’s really not helpful to them either that this is a unanimous opinion. This was not a liberal-conservative split here, a unanimous opinion by the Court pushing back against these claims.


      So again, the claims now, as in the Altmann case would have to revolve around property that was taken that involved a foreign national, somebody who at the time was a foreign national. In the case of Germany, it was not a German national. In the case of Hungary, it was not a Hungarian national.


      But also, what we see here is that you’re pretty much closing the door to all kinds of international human rights related claims that people might have wanted to bring into federal court with a property hook on it. Of course, after Kiobel, 2013, the Court said, “We are now going to hear this case.” Kiobel involved claims by Nigerian persons that Royal Dutch Shell, which has a major presence in the United States, had violated their human rights massively. And the Court said, “Well, under the principle of the -- federal laws are not meant to be extraterritorial. There’s a presumption against extraterritoriality. We cannot read the Alien Tort Claims Act as in any was applying to these claims.” So then you start moving in that direction.


      And so here, what was very interesting is that the plaintiffs were using property as a hook to try to go around this presumption against extraterritoriality. And the Supreme Court said, “Well, no. Again, it’s just a property taking. And if the property taking is property being taken from a national of that government, then the exception to the Foreign Sovereign Immunities Act doesn’t apply.” You still have foreign sovereign immunity protecting Germany, protecting Hungary, and anybody else.


Evelyn Hildebrand:  Thank you. We have a couple of callers in the queue now.


Caller 2:  Professor, you mentioned the Supreme Court argument where they make reference to a few different, we’ll call them hot spots. Can you talk a little bit about what was referenced and labeled as genocide? Do we have any kind of clarity here of how the justices were thinking about what gets labeled as genocide? And how much purchase does dicta or something like this give us when it comes to just identifying genocide? Maybe not necessarily adjudicating it in U.S. federal court, but certainly having clarity on how the courts see the issue of genocide. Thank you.


Prof. Alberto Coll:  Thank you for the question. Well, the interesting thing about the opinion is that the Court does not get into that issue at all. So the Court does not get into the question of defining genocide. The Court very much sticks to the issue of the meaning of property taking, as in the exception to the Foreign Sovereign Immunities Act.


      So remember, Germany interposes this defense and says, “We’re a foreign sovereign, and therefore, we’re immune.” The plaintiffs say, “Well, the FSIA has an exception, and that is property taken in violation of international law.” Germany replies, “Yes, but property taken in violation of international law means what it meant in 1976 when Congress drafted this law. It means property taken without compensation from foreign nationals.” The plaintiffs said, “No, no, no, no. Property taken in violation of international law means property taken the course of accompanying a violation of international law; in this case, genocide.”


      So the Supreme Court doesn’t get into the question of genocide at all or what genocide means. The Court says, “When we look at the exception, the only exception to foreign sovereign immunity involving property is property taken in violation of international law. And that means strictly foreign national taking, takings of property belonging to foreign nationals.” So it does not cover property taken in the course of violating people’s human rights, whether that violation might be genocide, whether it might be slavery, whether it might be torture, murder, whatever. It does not cover that. It only covers the property taken from a foreign national without providing just and prompt compensation.


      So that’s the opinion of the Court. And by doing that, they don’t get into the whole issue of defining genocide. The Court, in oral argument, none of the justices questioned the existence of genocide in Germany or the existence of genocide in Hungary. They do not question that. They are just saying this is not what Congress intended as an exception.


      The exception does not mean property taken in violation of international human rights law. The exception said property taken in violation of international law, meaning property taken in violation of international laws understood traditionally, which means property taken from a foreign national without providing compensation. Does that help?


Caller 2:  Yes. I guess you mentioned South Africa specifically, and labeling that as a genocide during oral argument. And I was wondering --


Prof. Alberto Coll:  -- Yes. Justice Breyer didn’t refer to genocide in South Africa. What he did say was he cited it as an example of the problems with granting the plaintiffs’ arguments. He said, “If we grant the plaintiffs’ argument, then we are going to have people from South Africa saying, ‘Look, in the course of apartheid --’ —and apartheid is considered a violation of international human rights law— ‘In the course of apartheid, my property was taken. And so I’m coming here into a U.S. court to claim damages for that property taken in violation of international -- taken in the course of apartheid.’”


      And Justice Breyer said, “If the federal courts start getting into that issue, they will be circumventing, they will be undermining, they will be getting in the way of mechanisms that South Africa, in the course of its new constitution and new laws, has put in place to address precisely those issues, to address human rights violations and property takings related to human rights violations during the apartheid era.” So that was just the example he gave, which was very interesting because he was pointing out, in essence, why even the liberal justices were very, very hesitant to grant the plaintiffs’ arguments in this case.


Caller 2:  Thank you very much. That’s very helpful. So he never labels apartheid as genocide?


Prof. Alberto Coll:  No, no, no, no, no. No. He doesn’t even get -- in the oral argument, he doesn’t even get into it. He just gives that as an example. And he added, “There are many countries around the world,” he said, “where there are many human rights violations taking place. And plaintiffs could come in and say, ‘My property was taken in the course of this particular human rights violation.’”


      Obviously, in the case of Hungary v. Simon, the violation was genocide. In the case of Philipp, the violation was genocide. In the case of South Africa, it might be apartheid, and some other place might be widespread torture, might be whatever, political repression. And all of a sudden, you have the federal courts really full of these cases, again, involving suits against foreign governments for things that these foreign governments did not to foreign nationals but to their own people. And the Supreme Court is very clear that this is not -- this doesn’t belong in the federal courts.


Caller 2:  Thank you very much.


Evelyn Hildebrand:  Wonderful. Thank you. We will now move to our final caller.


Caller 3:  Wonderful presentation. As a personal reaction to this, my father was in Auschwitz, and he was stateless. And to me, making somebody stateless just because of their religion is clearly a violation of international law.


      And I would also say that in many of the cases here in the United States in the courts trying to recover for people who had art and so forth, the whole problem was they don’t have the providence, they don’t have the proof, they don’t have information. But in this case, it’s Goering and Hitler who are involved in this thing. So if that isn’t involving international law violation, genocide, I’m very, very -- I’m shocked. And I’m particularly shocked by Germany’s reaction to this by being so, so specific and so detailed to avoid the claim.


      Here’s my question to you, Professor. Is there a way to fix this? In other words, could Congress fix this, for example, by allowing stateless—that was the issue of foreign nationals—to maybe fix that and provide an exception? And I know they’ve made exceptions, for example, for sponsors of terrorism and so forth. Is there any way to carve out something here to be able to resolve, which is to me, is just an example of -- to me, it’s shocking, this decision. And I say it again, my personal reaction to it. But to me, in this detailed analysis of, particularly by the German commission, is, to me, it’s unacceptable.


      And I understand what the Court was doing in terms of statue. But is there any way to fix this so that there can be justice, because I don’t think there was justice done here. Anyway, that’s just my personal feeling. Any way to resolve this going forward or to do something for stateless people who might have had -- weren’t foreign nationals per se, and maybe include them in this exception?


Prof. Alberto Coll:  Well, the answer is yes, of course. Congress can always rewrite the Foreign Sovereign Immunities Act and can always add revisions to it. So the answer is yes. And the Court in that case then would read that statutory revision accordingly and would follow it. So what the Court is doing here, it was reading the law as it was written, and it was reading the exception dealing with property taken in violation of international law as it was written and as it was conceived at the time.


      And that’s, of course -- Congress, of course, is always free to rewrite the law. And we know that, for example, there’s a presumption against extraterritoriality, but clearly the Court numerous times has said, “Look, if Congress wants to make a law or statute extraterritorial, it could do so. It can do so. But unless it does so clearly, we, the Court, will not read it as being so.”


      So by the way, that gets us into the whole issue, which is separate, of whether these art dealers were already stateless or whether they were still German nationals. And that is not clear. In 1935, it’s not quite clear. And so it may be that in 1935 and 1934, they were still German nationals. Yes, they were German nationals with highly circumscribed civil and political rights, but they were still recognized as German nationals. And it was not until a bit later that they ceased to be German nationals. And if they were German nationals, then the Court’s reasoning would still apply, that this would not be considered a violation of international law. This was just a regular property taking.


      But could Congress fix any of these things? They can. And then they would have to craft a very specific statutory provision to do so. And I suspect the executive branch would push against that, would lobby against it, as creating unnecessary friction with foreign countries. And you would have the usual arguments back and forth between the executive branch and the legislative branch on that question.


      So yes, when we read the case, I think our hearts are with the plaintiffs. We very much sense this. But the Court unanimously says, “Well, we read the statute -- this is how we read the statute, and this is what the statute says. And if we don’t read it this way, we’re inviting a lot of litigation to the U.S. courts involving not just Nazi Germany, but involving many, many other countries around the world where massive human rights violations take place all the time. And mostly -- and generally involving and accompanied by property takings.”


      So this is part of the issue that came out, particularly at oral argument, where the justices say  a lot of bad things that are happening in the world today, that have been happening in the world for the past 50, 40, 30, 20 years, will happen in the future. And do we really want the federal courts settling these claims? That’s a very legitimate question.


Caller 3:  Thank you.


Prof. Alberto Coll:  Sure.


Evelyn Hildebrand:  We do have one last caller in the queue. If you have a moment more, Professor Coll, we can have one more question and then wrap up.


Prof. Alberto Coll:  Of course.


Evelyn Hildebrand:  Wonderful.


Caller 4:  Thank you. I’m just curious -- I didn’t hear you mention this. I take it these suits were for monetary damages and not for recovery of the art involved. And if that’s the case, who possesses that art now?


Prof. Alberto Coll:  Well, the Guelph Treasure is sitting in Berlin at the Bode Museum. So if you go to Berlin, wonderful island in the middle of the city where they have several art museums. And in one of them, they have a whole set of rooms where you can see the Guelph Treasure on display. So it’s sitting there.


      Now, the case of Hungary v. Simon was very different, of course, because it involved personal property stripped from these persons as they were getting ready to be boarded into the trains that took them to the concentration camps. So that would have been a very different kind of property claim. But the art collection is in Berlin today. And in fact, one of the parties to the litigation was the foundation, the Prussian Cultural Foundation, which is the manager of this art collection.


Evelyn Hildebrand:  Wonderful. Thank you. We are approaching the hour, so I wanted to hand the floor back over to you, Professor, for any closing remarks you’d like to make before we close out.


Prof. Alberto Coll:  Yes. So I think that we have to look at these two cases as a very interesting intersection, as a very interesting corner, as a very interesting meeting point between international law and U.S. domestic law. And as a rule, I think that conservatives in general are hesitant about the idea of bringing into federal courts litigations involving international human rights claims over issues and violations that have taken place in foreign countries by foreign parties involving foreign property.


      And that skepticism goes all the way back to Justice Bork and his views very much against the readings of the Alien Tort Statute and his view that federal courts, (A) should not be clogged with these kinds of claims, and (B) there were legitimate concerns also about the federal courts not getting in the way of the president’s authority over U.S. foreign relations. So these cases, I think, provide a particular reading of the Foreign Sovereign Immunities Act that puts a stop to reading the exception, the property taken in violation of international law exception, as a wide door to bringing into the courts all kinds of human rights violations that had a property taking as a component element of them.


      Having said that, of course, it’s very clear Congress can change the statute. It can even carve out very specific -- if it wants to, it can carve out very specific exceptions applying to Holocaust related claims and involving specifically states whose governments were parties to the Holocaust. And of course, Congress could do that. The executive branch might -- would push back against that as complicating efforts on the part of the president to basically manage our relations with Germany, or any foreign ally, and to have these cases heard within the German system.


      We may disagree with the ruling of the German commission and the German system for handling this, but these are very, very sensitive questions involving the degree to which foreign parties can bring these claims into U.S. courts and then have U.S. judges issue opinions, which in the end wind up antagonizing foreign states, foreign allies, and also complicating various processes that different states have for promoting some kind of reconciliation or some kind of settlement of these issues.


      And of course, as I said, we always have a very delicate balance to tread here. And the Supreme Court unanimously tried to strike that balance by drawing a line. But I am sure that in the future, there will be other efforts to bring in claims of a similar nature with perhaps different facts, and we will see how the courts handle those.


      Thank you very much. It’s been a great pleasure to discuss these two cases and to be able to discuss the very thoughtful questions presented by our colleagues and the audience this morning. Thank you very much.


Evelyn Hildebrand:  Thank you. And on behalf of The Federalist Society, I want to thank both our expert and our audience for your valuable time and expertise, and I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your email for announcements about upcoming teleforum calls and virtual events. We do have one coming up a little bit later this afternoon. Thank you all for joining us today. We are adjourned. 




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at