An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals.
The ‘domestic takings rule’ derives from the premise that international law customarily concerns relations among states, not relations between states and individuals. If a sovereign takes foreign national’s property international law is implicated because it constitutes an injury to the state from which the foreign national comes. A domestic taking, by contrast, does not interfere with relations among states. This domestic takings rule has endured even though there has been a growing body of human rights law that has made states’ treatment of individual human beings a matter of international concern.
The claimants were the heirs of German Jewish art dealers who alleged that when the Nazi government rose to power it unlawfully coerced a consortium of their ancestors to sell a very precious collection of medieval relics to Prussia for a third of its value. The relics are currently in a Berlin museum. Their claim failed in Germany and they pursued the claim under international law in the USA saying that the Holocaust was a violation of international law and therefore an exception involving “property taken in violation of international law” applied. The exception was introduced into US law to deal with expropriation of property in Cuba in the 1960s. The court rejected the claim. A taking of property is wrongful under international law only where the state deprives an alien of property and the exception was inapplicable to the claimants who were German nationals.
This judgment is interesting because it is not often we find a judgment on what was originally called “the law of nations”, now known as international law.
[Federal Republic of Germany v Philipp and others 592 US_(2021)]
