Last week the U.S. Supreme Court decided Germany v. Philipp, a Holocaust expropriation case brought under the Foreign Sovereign Immunities Act (FSIA). Writing for a unanimous Court, Chief Justice Roberts held that the FSIA’s expropriation exception, permitting suit for cases involving “rights in property taken in violation of international law,” does not extend to a sovereign’s taking of the property of its own nationals. The Court did not address the second question presented—whether a court may decline jurisdiction on grounds of international comity—leaving the law on international comity abstention in confusion. In Hungary v. Simon, a companion case raising only the comity question, the Court vacated and remanded for reconsideration in light of Philipp.
Immunity and its Exceptions: Misreading the International Jurisprudence
It was never likely that the Supreme Court would allow Holocaust expropriation cases to move forward in U.S. courts. Philipp chose the narrowest ground to dismiss them. Traditionally, as the Chief Justice recounted, international law prohibited only expropriations of aliens’ property. A foreign sovereign’s taking of its own nationals’ property, on the other hand, was “a domestic affair” (p. 4). This “domestic takings” rule still holds today. During the twentieth century, international law became increasingly concerned with how states treat individuals, including their own citizens. But the growth of international human rights law left property rights largely untouched. When Congress passed the Hickenlooper Amendment in 1964 and the FSIA in 1976, creating expropriation exceptions for the act of state doctrine and state immunity, respectively, it had in mind foreign takings of property owned by U.S. nationals—not “domestic takings” by foreign states of their own citizens’ property.
Although Congress was thinking of U.S.-owned property when it wrote the FSIA’s expropriation exception, the text that Congress enacted does not contain any express restriction to such cases. The Supreme Court has recently interpreted other statutes to have broader applications than Congress expected—for example, interpreting Title VII’s prohibition of sex discrimination to include discrimination against gay and transgender persons in Bostock v. Clayton County. The text of the expropriation exception, as enacted, covers claims for “property taken in violation of international law.” Because genocide unquestionably violates international law, this exception could easily be read to include property taken as an act of genocide. Indeed, that is how both the Seventh Circuit and the D.C. Circuit read the phrase.
The Court’s suggestion that interpreting the FSIA to cover human rights abuses would violate international law on state immunity is entitled to no weight. First, it is dictum. The Court never invoked the Charming Betsy canon of interpreting statutes not to violate international law and clearly based its interpretation of the expropriation exception on other grounds. Second, the Court hedged its own dictum, saying only that the plaintiff’s interpretation of the expropriation would “arguably” derogate from “international law’s preservation of sovereign immunity for violations of human rights law” (pp. 10-11). Third, and most important, the Court’s dictum rests on a fundamental misreading of the International Court of Justice’s (ICJ) decision in Jurisdictional Immunities. There, the ICJ concluded that “a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law” (¶ 91). But the ICJ certainly did not conclude that all serious violations of international human rights law are entitled to immunity. Rather, it concluded only that customary international law requires immunity “for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict” (¶ 78). That conclusion rested on careful analysis of state practice and opinio juris specifically with respect to armed forces during armed conflict (¶¶ 65-77). To my knowledge, no similar evidence of state practice and opinio juris supports a state’s entitlement to immunity for genocide, for example. In the absence of such evidence, no customary international law rule immunizing states from genocide claims can be said to exist.
There is a fundamental difference between the questions of (1) whether immunity attaches to particular acts in the first place and (2) whether to recognize an exception to immunity once it has attached, a difference I have previously discussed at Just Security in the context of foreign official immunity. The ICJ’s refusal to recognize a human rights exception to the immunity of armed forces during armed conflict does not mean that all human rights violations are entitled to state immunity under customary international law.
Although permitting suits against foreign states for genocide and most other human rights violations would not violate international law, it is nevertheless true that the FSIA contains no general exception for human rights violations. It has exceptions for state-sponsored terrorism and for international terrorism in the United States but no other that mentions genocide, torture, or other similarly egregious acts. Admittedly, shoehorning human rights claims into the expropriation exception seems an odd fit. As the Chief Justice pointed out, “there is no reason to suppose Congress thought acts of genocide or other human rights violations to be especially deserving of redress only when accompanied by infringement of property rights” (pp. 12-13). That is a fair point, and likely one reason that the decision to limit the expropriation exception was unanimous.
International Comity in Federal Courts After Philipp
The Court chose not to address “Germany’s argument that the District Court was obligated to abstain from deciding the case on international comity grounds” (pp. 14-15). Professor Maggie Gardner and I filed an amicus brief on this question. We argued that the Supreme Court should not recognize the broad international comity abstention doctrine urged by Germany, Hungary, and the United States. Although the Court wisely declined to adopt that doctrine in Philipp, its refusal to address the question at all has left confusion in the lower courts. Currently, there are three different doctrines called “international comity abstention” kicking around in the lower federal courts. Two are doctrines of adjudicative comity—one broad and one narrow—that limit the exercise of jurisdiction. The third is a doctrine of prescriptive comity that limits the reach of U.S. law. (For explanation of the different categories of international comity doctrines, see here.) Some courts have also applied a distinct doctrine of prudential exhaustion to expropriation claims. Most of these doctrines—and perhaps all of them—simply should not exist.
In the lower courts, the comity issue in Philipp and Simon was initially litigated as a question of prudential exhaustion. This theory came from an earlier Holocaust expropriation case, in which the Seventh Circuit imposed a “prudential exhaustion requirement” that plaintiffs exhaust domestic remedies abroad before bringing expropriation claims in the United States. In Philipp and Simon, the D.C. Circuit rejected such an exhaustion requirement as inconsistent with the FSIA. (Disclosure: I filed an amicus brief in Simon at the D.C. Circuit arguing against an exhaustion requirement.) The Supreme Court’s decision to narrow the FSIA’s expropriation exception lessens the importance of this circuit split but does not eliminate it. Consequently, non-nationals whose property is taken by foreign governments in violation of international law will have to exhaust remedies in that foreign state before bringing FSIA expropriation claims in the Seventh Circuit but not in the D.C. Circuit.
No one thought to frame the question as international comity abstention until the United States filed a brief in Simon at the request of the D.C. Circuit panel. The United States argued for the broad version of international comity abstention adopted by the Ninth Circuit in Mujica v. Airscan Inc., and it was this argument that the United States, Germany, and Hungary pressed at the Supreme Court. Mujica abstention is a doctrine of adjudicative comity that allows district courts to decline jurisdiction based on their evaluations of the strength of U.S. interests, the strength of foreign interests, and the adequacy of an alternative forum. Other circuits (the Second, Third, Fourth, Sixth, and Seventh; for citations see the Dodge/Gardner amicus brief p. 13) have adopted a narrower doctrine of international comity abstention—based on Colorado River abstention in the federal-state context—that permits dismissal only when there are parallel proceedings pending abroad and exceptional circumstances justifying abstention. The Supreme Court’s decision to avoid the comity issue also leaves this circuit split unresolved.
Adding to the confusion, the Second Circuit continues to recognize a third doctrine of international comity abstention, this one a doctrine of prescriptive comity allowing a federal court not to apply U.S. law in deference to the interests of other nations based on the court’s balancing of ten different factors. When the Supreme Court granted review in Animal Science Products to address the deference owed a foreign government’s interpretation of its own law, it declined to take up the prescriptive comity question even though (as Professor Paul Stephan and I pointed out in an amicus brief) the Second Circuit’s doctrine seems to be at odds with the Court’s own precedents.
The same basic objections may be leveled against all these doctrines of international comity abstention. First and most fundamentally, it is for Congress to decide what cases the federal courts should hear. These abstention doctrines run contrary to “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them” that the Supreme Court recognized in Colorado River.
Second, these abstention doctrines tend to be highly discretionary in ways that the Supreme Court has previously disapproved. Mujica abstention, for example, gives great deference to the case-specific views of the U.S. government, which the Court rejected for the act of state doctrine in Kirkpatrick. Likewise, the Second Circuit’s prescriptive comity abstention doctrine is the kind of case-by-case balancing approach that the Court rejected in Empagran as “too complex to prove workable.”
Third, these doctrines lack the historical pedigree of forum non conveniens, the only doctrine that the Supreme Court has actually approved for dismissing cases in favor of foreign courts. In their briefs to the Supreme Court, Germany, Hungary, and the United States tried to manufacture a pedigree for Mujica abstention, but only by conflating distinct doctrines of international comity (as my brief with Maggie Gardner explained at pp. 7-14).
Fourth, new abstention doctrines seem unnecessary when forum non conveniens is available. Forum non conveniens has its flaws, but the doctrine is well established and well understood.
Fifth, each new doctrine of international comity tends to undercut the limits placed on others. For example, Mujica abstention permits courts to dismiss claims that forum non conveniens would not, because Mujica abstention does not require a threshold showing of an alternative forum and gives no deference to a plaintiff’s choice of forum. The Second Circuit’s prescriptive comity abstention doctrine allows courts to avoid the new framework the Supreme Court has established for the presumption against extraterritoriality and to decline to apply U.S. law based on other factors. The broader and more discretionary the new doctrines are, the worse the problem becomes.
I do not mean to suggest that the international comity toolkit is closed and that courts can never develop new comity doctrines. Maggie Gardner, for example, has argued for limited versions of international comity abstention. But before developing new doctrines, federal courts should remember that Congress has directed them to hear certain categories of cases; they should consider whether existing doctrines can address the international comity concerns; and they should reflect upon the possible consequences of adding new doctrines, particularly broad and discretionary ones. The Supreme Court managed to reach unanimity in Philipp, but perhaps at the expense of allowing the confusion over international comity abstention in the lower courts to persist.