Federal Republic of Germany v. Philipp (19-351)

argument 19-351

Federal Republic of Germany v. Philipp

Supreme Court of the United States 1h 28m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the purpose of the expropriation exception in the FSIA?

John G. Roberts 0:00

We will hear argument next in case nineteen three fifty one, the Federal Republic of Germany versus Philip. Mr Fryman?

Michael D. Friman 0:08

Thank you, Mr. Chief Justice, and may it please the court. When Congress enacted the expropriation exception in nineteen seventy six, communist states had been engaging in widespread expropriation of property from American nationals and denying that the international law of takings required them to pay compensation. Congress enacted a series of targeted measures, including the expropriation exception, to counter the estates' rejections of the law of takings. The exception lets US courts hear claims against foreign sovereigns when rights in property taken in violation of international law are an issue. That language invoked the established international law doctrine known as the Law of Takings. as the restatement and other sources show, the doctrine addresses only nations takings of foreigners' property.

Michael D. Friman 0:53

And by referring to it, Congress incorporated its limits into the expropriation exception. The plaintiffs ignore this context, trying to turn this modest exception into a novel tool for suing foreign sovereigns for human rights and law of war violations occurring in their own countries. That reading should be rejected for three reasons. First, it ignores the established meaning of the exception's words when enacted in nineteen seventy six. Second, it creates a jurisdictional mismatch with the exception's text. The exception focuses on rights in property, giving jurisdiction over property claims. It would be bizarre for courts to decide if the state has violated human rights law by murdering its own nationals just as a jurisdictional hook to hear a property claim.

Michael D. Friman 1:34

And finally, every applicable canon points away from a reading that would depart sharply from the restrictive theory, put the US deeply in breach of the international law of state immunity, blur the jurisdictional lines over foreign sovereigns where clarity is needed most, cause friction in foreign relations and risk reciprocal treatment against the US. Congress can take these risks if it wants to. But it hasn't yet.

John G. Roberts 2:00

Uh Counsel, um just to make sure, your position is because this suit involves property rights, it should not be regarded as uh uh a a qualification of the international of international law or uh uh a case in which uh genocide is a pertinent issue when deciding the question of jurisdiction.

Michael D. Friman 2:25

That's right, Your Honor. We believe that A three explicitly is is invoking and referring to the international law of takings that the legislators would have known in nineteen seventy six when enacting the statute against that backdrop.

John G. Roberts 2:39

Well, why then do you why why do you think that uh expropriation of property can't be part of uh a campaign of genocide?

Michael D. Friman 2:50

Well, property can be expropriated in a number of contexts, but the gravamin of aid three is the taking of property and the law that it's referring to is the international law of taking. I think a a genocidal taking, uh as your honor puts it, is unquestionably an act of genocide if it inflicts conditions of life calculated to physically destroy a people, but it's not a taking uh of property within the meaning of the expropriation exception.

John G. Roberts 3:15

Well I guess my question is why that is. If it is part of a campaign of genocide, that doesn't alter uh the fact that it's simply taking property?

Michael D. Friman 3:25

Well I think there's there's uh three reasons, Your Honor. Uh in in terms of the the evidence that Congress was intending to invoke the international law of takings in A three. Um the text of course is referring to language in international law. So the question is what takings are wrongful under international law? And the restatement provision operable at the time answered that question with the section said say ask asking when are takings wrongful under international law. I think the second is the statutory context. You had the Sabatino decision of this court followed by a series of targeted responses of increasing force to foreign nations that refused to recognize the existence of the international law of takings.