04/02/2021

US Supreme Court upholds Germany’s plea of State immunity in the “Welfenschatz” case

In September 2019, Professor Stefan Talmon joined eight other eminent international law experts in submitting an amicus curiae brief to the US Supreme Court. The brief argued that the Court should uphold the State immunity of Germany in a case concerning claims for US$250 million in compensation for the alleged coerced sale of a master trove of medieval art treasures known as the “Welfenschatz” during the Nazi-reign of Germany.

On 3 February 2021, the US Supreme Court unanimously upheld Germany’s plea of State immunity. The Court ruled that the exception to immunity for “property taken in violation of international law” under the US Foreign Sovereign Immunities Act of 1976 (FSIA) was limited to takings in violation of the international law of expropriation and did not extend to property taken in violation of international human rights law more generally. In line with the jurisprudence of the International Court of Justice, the US Supreme Court found that international law preserves sovereign immunity for violations of human rights law by public acts.

The Supreme Court also confirmed that the taking the property of a State’s own nationals was not unlawful under the international law of expropriation, thus upholding the so-called “domestic takings rule” in international law, allowing a State to expropriate its own nationals.

The Supreme Court also acknowledged that the expropriation exception to immunity in the FSIA with regard to foreign property was “unique” because it permits the exercise of jurisdiction over some public acts of expropriation and thus goes beyond the restrictive view of immunity in general international law.

The opinion follows the Court’s more restrictive approach to the exercise of extraterritorial jurisdiction by US courts, repeating its statement in Kiobel v Royal Dutch Petroleum Co. that “United States law governs domestically but does not rule the world.”

Read the opinion Federal Republic of Germany et al. v Philipp et al., No. 19–351, 3 February 2021

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