Foreign Sovereign Immunities Act of 1976 — International Law —

Expropriation Exception — Federal Republic of

Germany v. Philipp

The United States has led the world in providing Holocaust victims
with a forum for restitution.1 Over the decades, Congress and the courts
have restored billions of dollars to Holocaust victims and their heirs.2
Last Term, however, the Supreme Court deviated from this course in
Federal Republic of Germany v. Philipp,3 holding that the Foreign
Sovereign Immunities Act4 (FSIA) would bar a suit brought against
Germany arising out of a Holocaust-era taking of Jewish art dealers’
property if those art dealers were German nationals.5 In so holding, the
Court expressed practical concerns with allowing U.S. courts to adjudi-
cate international human rights claims.6 However, a 2016 amendment
to the FSIA’s expropriation exception actually seems to reflect
Congress’s intent to permit such claims, at least where they involve
property takings that are part of a campaign intended to cause a group’s
physical annihilation,7 thus constituting genocide.8 The Court’s reliance
on pragmatic considerations led it to adopt a counterintuitive reading of
the FSIA that deprives genocide victims of an avenue of recourse that
Congress granted them.

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1 Michael J. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20
BERKELEY J. INT’L L. 11, 12 (2002).
2 CONF. ON JEWISH MATERIAL CLAIMS AGAINST GER. & WORLD JEWISH RESTITUTION
ORG., THE ROLE OF THE UNITED STATES IN PURSUING COMPENSATION FOR HOLOCAUST
VICTIMS AND HEIRS, AND THE HISTORICAL BASES FOR U.S. LEADERSHIP 12 (2020),
https://www.claimscon.org/wp-content/uploads/2020/09/2020.9.23-The-U.S.-Role-in-Holocaust-
Compensation-.pdf [https://perma.cc/TTJ9-5DV6]; see id. at 7–21.
3 141 S. Ct. 703 (2021).
4 Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified as amended in scattered sections of 28
U.S.C.).
5 See Philipp, 141 S. Ct. at 715.
6 See id. at 714.
7 See Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (Clarification Act),
Pub. L. No. 114-319, 130 Stat. 1618 (2016) (codified at 28 U.S.C. § 1605).
8 See Convention on the Prevention and Punishment of the Crime of Genocide art. II, Dec. 9,
1948, 78 U.N.T.S. 277 (identifying “[d]eliberately inflicting on [a] group conditions of life calculated
to bring about its physical destruction” as genocide); see also Matthias Weller, Genocide by
Expropriation – New Tendencies in US State Immunity Law for Art-related Holocaust Litigations,
CONFLICTOFLAWS.NET (Sept. 13, 2018), https://conflictoflaws.net/2018/genocide-by-
expropriation-new-tendencies-in-us-state-immunity-law-for-art-related-holocaust-litigations
[https://perma.cc/J7RL-82X3]. The U.S. Congress has recognized that property takings in associa-
tion with the Holocaust constitute genocide. See Holocaust Expropriated Art Recovery Act of 2016,
Pub. L. No. 114-308, § 2(1), 130 Stat. 1524, 1524 (codified at 22 U.S.C. § 1621) (“[T]he Nazis confis-
cated or otherwise misappropriated hundreds of thousands of works of art and other property
throughout Europe as part of their genocidal campaign . . . .”); Holocaust Victims Redress Act, Pub.
L. No. 105-158, § 201(4), 112 Stat. 15, 17 (1998) (“The Nazis’ policy of looting art was a critical
element and incentive in their campaign of genocide . . . .”).

441
442 HARVARD LAW REVIEW [Vol. 135:441

In 1929, a consortium of Jewish-owned art dealing firms acquired a

precious treasure: a collection of medieval art and artifacts known as
the Welfenschatz.9 Around half of the artifacts went to buyers abroad,
but in the summer of 1935, the art dealers sold the rest to the State of
Prussia, purportedly by means of “a combination of political persecution
and physical threats,” for only about a third of market value.10 This
alleged forced sale occurred at the behest of high-ranking Nazis, includ-
ing Hermann Göring and Adolf Hitler himself.11
Decades later, the heirs of several consortium members filed suit
against Germany and the German instrumentality in possession of the
Welfenschatz in the U.S. District Court for the District of Columbia,
raising ten claims relating to the 1935 sale.12 The defendants moved to
dismiss, advancing a sovereign immunity argument based on the
FSIA.13 The FSIA generally bars federal courts from asserting jurisdic-
tion over foreign states, but it contains several exceptions.14 These in-
clude the expropriation exception, which permits claims “in which rights
in property taken in violation of international law are in issue,” as long
as that property, or the entity that owns it, is connected to commercial
activity taking place in the United States.15
The district court denied the defendants’ motion to dismiss in part
and granted it in part.16 It determined that five of the heirs’ claims
appropriately centered on “rights in property”17 and established the nec-
essary nexus with U.S. commercial activity, as required by the expropri-
ation exception.18 The court also concluded that the heirs had ade-
quately pled that the Welfenschatz was “taken in violation of
international law.”19 It based this determination on the D.C. Circuit
case Simon v. Republic of Hungary,20 which decided that the
expropriation exception allowed descendants of Hungarian Jews to
bring suit against Hungary for “systematic, ‘wholesale plunder of Jewish
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9 Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 64 (D.D.C. 2017).
10 Philipp, 141 S. Ct. at 708.
11 Philipp, 248 F. Supp. 3d at 65. In late 1935, “G[ö]ring presented the Welfenschatz as a per-
sonal ‘surprise gift’ to Hitler during a ceremony.” Id. (quoting Complaint ¶¶ 13, 172, Philipp, 248
F. Supp. 3d 59 (No. 15-266)).
12 Id. at 63. The heirs initially brought their claims before a German commission established to
hear Nazi-era art restitution claims, but the commission concluded that the sale did not constitute
a coerced transaction. Id. at 66–67.
13 See id. at 67. The defendants also argued that the heirs’ claims were preempted by U.S.
foreign policy and that the doctrine of forum non conveniens required the case to be dismissed. Id.
14 See 28 U.S.C. §§ 1604–1605.
15 Id. § 1605(a)(3); see Philipp, 248 F. Supp. 3d at 68.
16 Philipp, 248 F. Supp. 3d at 64.
17 Id. at 69. The court dismissed five of the plaintiffs’ claims for lack of subject matter juris-
diction because these claims did not sufficiently relate to rights in property. See id.
18 See id. at 74.
19 Id. at 70.
20 812 F.3d 127 (D.C. Cir. 2016).
2021] THE SUPREME COURT — LEADING CASES 443

property’” because this property destruction amounted to genocide, con-

stituting a taking in violation of international law.21 Accordingly, the
district court concluded that the allegedly coercive sale of the
Welfenschatz also constituted genocide because it was intended “to de-
prive the [art dealers] of their ability to earn a living [and] . . . of re-
sources needed to survive as a people.”22 Though the defendants in-
voked the domestic takings rule, which indicates that a sovereign’s
expropriation of its own citizens’ property does not violate international
law, the district court noted that the Simon court “expressly rejected the
application of the domestic takings rule in the context of intrastate gen-
ocidal takings” because genocide breaches international law regardless
of nationality.23 The district court also rejected the defendants’ other
arguments.24 Germany filed an interlocutory appeal, which the district
court certified.25
The D.C. Circuit mainly affirmed.26 Like the district court, the panel
applied Simon to hold that a taking of property, even from a sovereign’s
own citizens, could open the sovereign to suit “where the taking
‘amounted to the commission of genocide.’”27 The panel addressed the
defendants’ argument that Philipp was distinguishable from Simon, de-
ciding squarely that “seizures of art may constitute ‘takings of property
that are themselves genocide.’”28 It outlined federal statutes that “made
clear that [Congress] considers Nazi art-looting part of the Holocaust.”29
And it affirmed the district court’s rejection of Germany’s arguments
that the expropriation exception includes an exhaustion requirement30
and that the United States encourages alternative dispute resolution for
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21 Id. at 143 (quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 594 (D.C. Cir. 2013)); see
id. at 143–44. The court noted that the expropriations were motivated by “an intent to destroy a
people.” Id. at 143.
22 Philipp, 248 F. Supp. 3d at 71.
23 Id. at 72; see RESTATEMENT (THIRD) OF FOREIGN RELS. L. OF THE U.S. § 712(1) (AM.
L. INST. 1986).
24 See Philipp, 248 F. Supp. 3d at 75–83. The defendants contended that the suit should be
dismissed because U.S. foreign policy favors the use of alternative dispute resolution mechanisms
to settle Nazi-era restitution claims, id. at 75, but the court reasoned that the plaintiffs had suffi-
ciently pled that the proceedings before the German commission were conducted improperly, lead-
ing to a biased outcome, and that international comity did not require it to defer to the German
commission, see id. at 80–81. It also refused to apply forum non conveniens to dismiss the suit, id.
at 87, and declined to extend international law’s exhaustion requirement to claims brought by in-
dividuals against a foreign state, id. at 83.
25 Philipp v. Federal Republic of Germany, 894 F.3d 406, 410 (D.C. Cir. 2018).
26 Id. at 408. The panel diverged from the district court only on the expropriation exception’s
commercial-nexus requirement, holding that Germany itself could not be sued because the
Welfenschatz remained in Germany. See id. at 414. The panel did, however, allow the heirs’ claims
against the German state entity now in possession of the art to proceed. See id. at 414.
27 Id. at 410–11 (quoting Simon v. Republic of Hungary, 812 F.3d 127, 142 (D.C. Cir. 2016)).
28 Id. at 411 (quoting Simon, 812 F.3d at 144 (emphasis omitted)).
29 Id. at 411–12.
30 See id. at 415.
444 HARVARD LAW REVIEW [Vol. 135:441

Holocaust restitution claims.31 Rather, it concluded that “the United

States has repeatedly made clear that it favors such litigation”32 through
statutes including the Foreign Cultural Exchange Jurisdictional
Immunity Clarification Act33 (Clarification Act), which generally broad-
ened sovereign immunity under the FSIA for claims arising out of
wrongfully taken art — but exempted art taken by the Nazis.34
Over a dissent from Judge Katsas, the D.C. Circuit denied the de-
fendants’ petition for rehearing en banc.35 Judge Katsas advocated for
a narrower understanding of the expropriation exception’s phrase
“taken in violation of international law,” suggesting that it should “en-
compass[] only property taken in violation of international takings
law.”36 He highlighted the panel decision’s consequences, warning that
its reasoning “cannot be limited to genocide”37 — if the expropriation
exception incorporated human rights law, it should also provide redress
for property loss from “slavery, murder, degrading treatment, and sys-
temic racial discrimination,” opening nations across the world to liabil-
ity.38 To drive home his point, Judge Katsas urged readers to “consider
if the shoe were on the other foot,” envisioning “the United States’ reac-
tion if a European trial court undertook to adjudicate a claim for tens
of billions of dollars for property losses suffered by a class of American
victims of slavery or systemic racial discrimination.”39 Finally, he ex-
plained why, in his view, Philipp should have been reheard en banc.40
On appeal, the Supreme Court vacated the D.C. Circuit’s judgment,
remanding the case to the district court.41 Writing for a unanimous
Court,42 Chief Justice Roberts determined that “the expropriation ex-
ception is best read as referencing the international law of expropriation
rather than of human rights.”43 The Court explained that when the
FSIA was passed, the international law of expropriation included the
domestic takings rule, which generally bars suits arising out of a

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31 See id. at 416–18.
32 Id. at 418.
33 Pub. L. No. 114-319, 130 Stat. 1618 (2016) (codified at 28 U.S.C. § 1605).
34 See Philipp, 894 F.3d at 418.
35 Philipp v. Federal Republic of Germany, 925 F.3d 1349, 1349 (D.C. Cir. 2019).
36 Id. at 1351 (Katsas, J., dissenting from the denial of rehearing en banc) (emphasis added).
37 Id. at 1354.
38 Id. at 1355.
39 Id.
40 See id. at 1357–59.
41 Philipp, 141 S. Ct. at 716.
42 Id. at 707.
43 Id. at 712. The Court did not consider Germany’s argument that the case should have been
dismissed to preserve international comity, id. at 715, and it directed the district court to consider
on remand the heirs’ argument that the domestic takings rule should not apply because the art
dealers were not German nationals at the time of the alleged taking, id. at 715–16.
2021] THE SUPREME COURT — LEADING CASES 445

sovereign’s expropriation of its own citizens’ property.44 And it rea-

soned that the FSIA limited the ability to overcome sovereign immunity
for acts traditionally associated with human rights violations, like inju-
ries and death, determining that “[t]hese restrictions would be of little
consequence if human rights abuses could be packaged as violations of
property rights and thereby brought within the expropriation exception.”45
The Court acknowledged its desire not to interfere unduly with for-
eign sovereigns. It “recognized that ‘United States law governs domes-
tically but does not rule the world,’”46 explaining that it interpreted the
FSIA “to avoid, where possible, ‘producing friction in our [foreign]
relations.’”47 The Court noted that “[a]s a Nation, we would be sur-
prised — and might even initiate 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,” concluding that
“[t]here is no reason to anticipate that Germany’s reaction would be any
different.”48
The Court was unconvinced by the plaintiffs’ counterarguments.
The heirs reasoned that because the expropriation exception refers to
“property taken in violation of international law” instead of “property
takings in violation of law,” it encompasses all international law, includ-
ing human rights law.49 But the Court refused to “place so much weight
on a gerund,”50 maintaining that “[a] statutory phrase concerning prop-
erty rights most sensibly references the international law governing
property rights, rather than the law of genocide.”51 Nor did the heirs’
Clarification Act argument persuade the Court. The heirs contended
that the Act’s exception for Nazi art-looting claims meant that
“Congress anticipated Nazi-era claims could be adjudicated” through
the expropriation exception.52 But the Court was unswayed, interpret-

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44 Id. at 712. In fact, according to the Court, “states and scholars disagreed over whether interna-
tional law provided a remedy for a sovereign’s interference with anyone’s property rights,” while the
principle that they could interfere with their own citizens’ property was “beyond debate.” Id. at 711.
45 Id. at 714; see id. (citing 28 U.S.C. §§ 1605(a)(5), 1605A(a), 1605A(h)).
46 Id. (quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115 (2013)).
47 Id. (quoting Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137
S. Ct. 1312, 1322 (2017)).
48 Id.
49 Id. at 712 (citing Transcript of Oral Argument at 70, Philipp, 141 S. Ct. 703 (No. 19-351),
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-351_d0fi.pdf
[https://perma.cc/7UEZ-GZUT]).
50 Id.
51 Id. at 712–13. The Court observed that “[t]he exception places repeated emphasis on property
and property-related rights, while injuries and acts we might associate with genocide are notably
lacking.” Id. at 712.
52 Id. at 715.
446 HARVARD LAW REVIEW [Vol. 135:441

ing the Act’s reference to Nazi art takings to apply only to “claims in-
volv[ing] the taking of a foreign national’s property,” not takings from a
country’s own nationals.53 And though the Court recognized that
Congress had passed several statutes “aimed at promoting restitution to
the victims of the Holocaust,” it concluded that these statutes “generally
encourage redressing those injuries outside of public court systems.”54
In holding that the FSIA’s expropriation exception incorporates only
the international law of property, not human rights law, the Court too
quickly brushed past the Clarification Act, which is most naturally read
to express congressional approval of the idea that the expropriation ex-
ception applies to genocidal property takings, even those that occur
against a sovereign’s own citizens. Because it specifically singles out art
taken by Nazis as redressable through the FSIA,55 the Act supports the
conclusion that the expropriation exception applies to property taken as
an act of genocide. In construing the exception as applying only to vio-
lations of international property law — and therefore, only to takings of
property from noncitizens — the Philipp Court failed to recognize what
the Clarification Act confirmed: the expropriation exception’s reference
to “international law” incorporates human rights law.
In reversing Philipp, the Court also reversed Simon v. Republic of
Hungary, which had informed the lower courts’ decisions in Philipp.56
Simon held that descendants of Hungarian Jews could seek redress
through the FSIA for genocidal property takings carried out by the
Nazi-controlled government of Hungary during the Second World
War.57 The court reasoned that where “genocide constitutes the perti-
nent international-law violation,” the domestic takings rule is inappo-
site, because unlike the law of expropriation, the law of genocide does
not require that expropriator and victim differ in nationality.58 It noted
that the expropriation exception’s text contained no indication that
“taken in violation of international law” referred only to property law.59
The Clarification Act, which was passed shortly after Simon, seemed
to endorse Simon’s holding by contemplating descendants of Holocaust
victims bringing suit through the FSIA. Generally, the Act made the
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53 Id. The Court would “not interpret Congress’s effort to preserve sovereign immunity in a
narrow, particularized context — art shows — as supporting the broad elimination of sovereign
immunity” for all property takings by Nazis. Id.
54 Id.
55 See 28 U.S.C. § 1605(h)(2)(A).
56 See Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–14 (D.C. Cir. 2018); Philipp v.
Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017). The Supreme Court va-
cated and remanded the D.C. Circuit’s decision in Simon for reconsideration in light of Philipp.
Republic of Hungary v. Simon, 141 S. Ct. 691, 691 (2021) (per curiam).
57 See Simon v. Republic of Hungary, 812 F.3d 127, 142–43 (D.C. Cir. 2016).
58 Id. at 144; see id. at 144–45 (“The international-law prohibition against genocide in fact was
a direct reaction to the actions of sovereigns against their own citizens.” Id. at 145.).
59 See id. at 145.
2021] THE SUPREME COURT — LEADING CASES 447

expropriation exception inapplicable to artwork imported into the

United States for temporary exhibition by stating that this would not
constitute “commercial activity” within the meaning of the exception.60
It was passed in response to Malewicz v. City of Amsterdam,61 which
held that those wrongfully deprived of art could bring suit through the
expropriation exception if that art were later temporarily exhibited in
the United States, even if it were otherwise immune from seizure.62
After Malewicz, several countries refused to lend art to U.S. museums
for fear of litigation, which led to the Clarification Act’s attempt to pro-
mote exchange of art pieces.63 However, the Act singles out two
categories of art that still fall under the expropriation exception and thus
leave countries open to suit. The first encompasses art taken by repre-
sentatives of Nazi Germany.64 The second applies to art taken as part
of “a systematic campaign of coercive confiscation or misappropriation
of works from members of a targeted and vulnerable group.”65 Thus,
while the Clarification Act overturned Malewicz, it signaled approval of
Simon’s conclusion: the expropriation exception encompasses genocide-
based claims irrespective of citizenship.66
Congress and contemporary commentators alike expected the
Clarification Act to allow for redress for genocidal art takings. Because
the Act’s second exception echoes international law’s definition of
crimes against humanity,67 it “suggests a broad approval of suits alleging
systematic confiscations of property from targeted and vulnerable
groups without respect to nationality,”68 even where those takings do
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60 See 28 U.S.C. § 1605(h)(1).
61 362 F. Supp. 2d 298 (D.D.C. 2005); see Contemporary Practice of the United States Relating
to International Law—New Legislation Seeks to Confirm Immunity of Artwork and Facilitate
Cultural Exchange, 111 AM. J. INT’L L. 510, 510–12 (2017).
62 See Malewicz, 362 F. Supp. 2d at 310–12. Malewicz concerned the Soviet abstract artist
Kazimir Malewicz, who left art with a friend abroad for fear that it would otherwise be destroyed
by the Communist regime. Id. at 301. The friend sold much of the art to the Stedelijk Museum in
Amsterdam, but Malewicz’s heirs contended that it was never his to sell. See id. at 301–04.
63 See Laura Gilbert, New Legislation to Protect Foreign Art Lenders from Lawsuits on U.S.
Soil, OBSERVER (Apr. 2, 2012, 5:08 PM), https://observer.com/2012/04/new-legislation-to-protect-
foreign-lenders-from-lawsuits-on-u-s-soil [https://perma.cc/K5LE-FT55].
64 28 U.S.C. §§ 1605(h)(2)(A), 1605(h)(3).
65 Id. § 1605(h)(2)(B).
66 See Bert Theeuwes, Frédéric Dopagne & Saskia Lemiere, U.S. Extends Foreign Sovereign
Immunity for Art Works, LEXOLOGY (May 1, 2017), https://www.lexology.com/library/
detail.aspx?g=374d0586-c238-4ce5-9d5c-72d4eb5fd567 [https://perma.cc/97YK-4S8T] (“The sec-
ond exception of the [Clarification Act] seems to leave room for claims similar to the ones in Simon
v. Republic of Hungary, in which a government expropriates [from] its own nationals.”).
67 The Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, de-
fines crimes against humanity in part as religious, cultural, and ethnic persecution “committed as
part of a widespread or systematic attack directed against any civilian population.” Id. art. 7.
68 Ingrid Wuerth, An Art Museum Amendment to the Foreign Sovereign Immunities Act,
LAWFARE (Jan. 2, 2017, 12:48 PM), https://www.lawfareblog.com/art-museum-amendment-
foreign-sovereign-immunities-act [https://perma.cc/WRH2-LKHN] (“It is possible that the drafters
448 HARVARD LAW REVIEW [Vol. 135:441

not rise to the level of genocide. And given the Act’s explicit Holocaust
exception, observers certainly anticipated that it would offer redress for
Nazi-era art looting.69 The House Report for the Clarification Act es-
tablishes that the Holocaust exception was included because of the mas-
sive scope of Nazi art looting, which was part of “the Nazis’ exhausting
and extensive processes intended to strip European Jews of their dignity
and cultural lifestyles . . . symboliz[ing] the profound depths of the
Nazis’ crimes against humanity.”70 Nowhere does the House Report
indicate that recovery should depend on a victim’s nationality. Rather,
it suggests that the Clarification Act was meant to allow descendants of
European Jews whose property was taken by the Nazis — like the plain-
tiffs in Philipp — to bring suit through the FSIA,71 even if their ances-
tors were nationals of the country that sought to exterminate them.
The Court’s contrary interpretation strangely cramps the Clarification
Act, preventing descendants of German Jews from recovering for
wrongful expropriations carried out by Nazi Germany. The Court
stressed that Nazi-era claims could be brought only where they do not
conflict with the domestic takings rule.72 To support this conclusion,
the Court adopted a strained interpretation of Republic of Austria v.
Altmann,73 which centered on Viennese Jews whose art was stolen by
Nazi-dominated Austria.74 Though the Altmann Court concluded that

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intended that [the Clarification Act] apply narrowly only to confiscations of property held by for-
eigners . . . . But the focus of [its second exception] is not on the confiscation of alien property
without compensation, but instead on confiscations of property held by ‘vulnerable’ groups.”).
69 See Doreen Carvajal, Dispute Over Bill on Borrowed Art, N.Y. TIMES (May 21, 2012),
https://www.nytimes.com/2012/05/22/arts/design/dispute-over-bill-to-protect-art-lent-to-museums.html
[https://perma.cc/X5KJ-VN6V] (anticipating that the Act would allow claims by “families whose
valuables were taken by the Nazis in World War II . . . cover[ing, perhaps exclusively,] people who
lost art directly to the Nazis or their agents” and including Professor Derek Fincham’s estimation
that “the bill would be difficult to pass without an exception for Holocaust-era claims”); AAMD
Statement on the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, ASS’N OF
ART MUSEUM DIRS. (May 3, 2012), https://aamd.org/for-the-media/press-release/aamd-
statement-on-the-foreign-cultural-exchange-jurisdictional-immunity [https://perma.cc/A96B-492G]
(anticipating that the Clarification Act would “address[] claims related to works seized during the
Holocaust”).
70 H.R. REP. NO. 114-141, at 7 (2015) (quoting Shira T. Shapiro, Case Note, How Republic of
Austria v. Altmann and United States v. Portrait of Wally Relay the Past and Forecast the Future
of Nazi Looted-Art Restitution Litigation, 34 WM. MITCHELL L. REV. 1147, 1152–53 (2008)).
Senators Orrin Hatch and Dianne Feinstein, the Act’s sponsors, also emphasized that it would not
apply to art taken by Nazis. See 158 CONG. REC. 3,680 (2012) (statement of Sen. Dianne Feinstein);
id. at 3,681 (statement of Sen. Orrin Hatch).
71 H.R. REP. NO. 114-141, at 2.
72 See Philipp, 141 S. Ct. at 715.
73 541 U.S. 677 (2004). Altmann’s story was memorialized in the 2015 film WOMAN IN GOLD.
See Patricia Cohen, The Story Behind “Woman in Gold”: Nazi Art Thieves and One Painting’s
Return, N.Y. TIMES (Mar. 30, 2015), https://www.nytimes.com/2015/03/31/arts/design/the-story-
behind-woman-in-gold-nazi-art-thieves-and-one-paintings-return.html [https://perma.cc/ZAD2-P2QH].
74 See Altmann, 541 U.S. at 681–82.
2021] THE SUPREME COURT — LEADING CASES 449

the expropriation exception would allow their descendant to bring suit,

the Philipp Court intimated that this was possible only because the art
owners in Altmann were Czechoslovakian nationals and technically the
expropriating government was Austria.75 However, other sources sug-
gest that the original art owner actually did have Austrian citizenship,76
and the Altmann plaintiff herself maintained that she was an Austrian
citizen at the time of the seizure.77 In any event, neither the circuit court
nor the Supreme Court in Altmann focused on nationality,78 despite the
Philipp Court’s attempt to characterize this as key to its reasoning.
The Philipp Court’s emphasis on nationality also sits strangely with
the Clarification Act’s “systematic campaign” exception.79 Twentieth-
century history abounds with examples of “systematic campaign[s]”
against members of a vulnerable group where that group is made up of
nationals of the repressive regime.80 Notably, this exception was added
after backlash from commentators who argued that victims of atrocities
carried out by the Soviet Bolsheviks and the Cambodian Khmer Rouge,
both of which involved “systematic campaign[s]” of oppression against
their own nationals,81 merited redress just as much as victims of the
Holocaust.82 According to the Philipp Court, descendants of
Cambodian or Soviet nationals would be out of luck if they sought to
bring suit through the FSIA, simply because their ancestors were citi-
zens of the country that oppressed them. But the statutory scheme is
more easily read to suggest approval of Simon’s conclusion that geno-
cidal property takings suffice to invoke the expropriation exception.
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75 See Philipp, 141 S. Ct. at 715.
76 See 3 MICHAEL ANTON, INTERNATIONALES KULTURGÜTERPRIVAT- UND ZIVIL-
VERFAHRENSRECHT 151 (2010) (describing Bloch-Bauer as a citizen of Austria); Todd Grabarsky,
Note, Comity of Errors: The Overemphasis of Plaintiff Citizenship in Foreign Sovereign Immunities
Act “Takings Exception” Jurisprudence, 33 CARDOZO L. REV. 237, 257 (2011); Letter from Stefan
Gulner, Att’y for Plaintiff, to Stuart E. Eizenstat, Deputy Sec’y, U.S. Dep’t of the Treasury (Feb.
23, 2000), https://web.archive.org/web/20010206185753/http://www.adele.at/Briefe_von_Dr__
Stefan_Gulner/Letter_from_Dr__Stefan_Gulner/letter_from_dr__stefan_gulner.htm [https://
perma.cc/C8ZS-6URR] (describing the original art owner, Ferdinand Bloch-Bauer, as an “Austrian
citizen of Jewish origin”). But see 1 Deposition of Maria Altmann at 16:6–16:14, Altmann v.
Republic of Austria, 142 F. Supp. 2d 1187 (C.D. Cal. 2001), aff’d, 317 F.3d 954 (9th Cir. 2002), aff’d
sub nom. Altmann, 541 U.S. 677 (No. CV 00-8913).
77 See 1 Deposition of Maria Altmann, supra note 76, at 15:17–15:24; Grabarsky, supra note 76,
at 258 n.148.
78 See Altmann, 541 U.S. at 692; Grabarsky, supra note 76, at 258 (“Notably, the [circuit] court
downplayed the citizenship issue.”).
79 28 U.S.C. § 1605(h)(2)(B)(ii).
80 See Roger W. Smith, Human Destructiveness and Politics: The Twentieth Century as an Age
of Genocide, in GENOCIDE AND THE MODERN AGE 25–26 (Isidor Wallimann & Michael N.
Dobkowski eds., Syracuse Univ. Press 2000) (1987).
81 See ERIC D. WEITZ, A CENTURY OF GENOCIDE 96–101, 185–89 (2015).
82 See Carvajal, supra note 69. The original version of the Clarification Act included an excep-
tion only for Nazi-era art looting. See Foreign Cultural Exchange Jurisdictional Immunity
Clarification Act, H.R. 4086, 112th Cong. § 2 (2012).
450 HARVARD LAW REVIEW [Vol. 135:441

Of course, the Clarification Act does not directly apply to the plain-
tiffs in Philipp; it applies to art pieces that are in the United States as
part of a temporary art exhibition.83 But it does suggest congressional
support for the idea that certain property takings — namely, those that
occurred as part of the Holocaust or a similar campaign of systematic
oppression — violate international law, making the expropriation excep-
tion applicable, even if these takings occur against a sovereign’s own
citizens. After all, the facts behind Philipp are not far removed from
the Clarification Act’s Holocaust exception, as Philipp fits right into the
context of the Nazi-era art looting that formed the impetus for the
Clarification Act’s attempt to afford victims an avenue of redress.84
In interpreting the expropriation exception to refer only to interna-
tional property law, including the domestic takings rule, the Court
adopted a reading of the FSIA that privileged avoiding “friction” be-
tween the United States and foreign nations over affording redress to
victims of genocide.85 The Court suggested that Congress could not
have intended the exception to incorporate international human rights
law, expressing concern that if it held otherwise, foreign countries would
“reciprocate by granting their courts permission to embroil the United
States in expensive and difficult litigation.”86 But even if the Congress
that passed the FSIA had assumed that it would apply primarily to
property takings from foreign nationals, “the text that Congress enacted
does not contain any express restriction to such cases.”87 In fact, the
Congress that enacted the Clarification Act singled out property takings
that occur as part of a systematic campaign against a vulnerable
group — in particular, takings committed by the Nazis during the
Holocaust — as sufficient to merit redress through the FSIA.88 The
Court’s contrary interpretation subverts congressional intent, stripping
away an avenue of recourse for victims of genocide.

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83 28 U.S.C. § 1605(h)(1)(A).
84 See H.R. REP. NO. 114-141, at 7 (2015); Complaint, supra note 11, ¶¶ 1–13.
85 Philipp, 141 S. Ct. at 714. The decision’s deference to concern for the foreign policy risks of
allowing the suit to proceed and its willingness to limit the role of the judiciary exemplify foreign
relations exceptionalism, or “the idea that foreign affairs are an exceptional sphere of policymaking,
distinct from domestic law and best suited to exclusively federal, and primarily executive, control.”
Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 HARV. L.
REV. 1897, 1900 (2015). Recently, the Supreme Court has shown greater reluctance to defer to the
Executive in foreign relations cases, see id. at 1901, but Philipp is an exception to this trend.
86 Philipp, 141 S. Ct. at 714 (quoting Bolivarian Republic of Venezuela v. Helmerich & Payne
Int’l Drilling Co., 137 S. Ct. 1312, 1322 (2017) (internal quotation marks omitted)).
87 William S. Dodge, The Meaning of the Supreme Court’s Ruling in Germany v. Philipp, JUST
SEC. (Feb. 8, 2021), https://www.justsecurity.org/74598/the-meaning-of-the-supreme-courts-ruling-
in-germany-v-philipp [https://perma.cc/X7MQ-KKZ3] (“The Supreme Court has recently inter-
preted other statutes to have broader applications than Congress expected — for example, . . . in
Bostock v. Clayton County[, 140 S. Ct. 1731 (2020)].”).
88 See 28 U.S.C. § 1605(h)(2).