Shifting Sands for the Stateless Under the Foreign Sovereign Immunities Act

Authors

Vivian Grosswald Curran, University of Pittsburgh School of LawFollow

Document Type

Article

Publication Date

2025

Abstract

The Foreign Sovereign Immunities Act (FSIA) grants foreign sovereigns immunity from suit in U.S. courts, but also sets forth some exceptions. One exception to a foreign sovereign’s immunity occurs if its expropriation of property violates international law. Where the sovereign has expropriated property from its own nationals, however, the sovereign still remains immune from suit. This “domestic takings” rule is consistent with general principles of international law, although international law increasingly has been challenging a State’s right to mistreat its own nationals. In 2023, in Simon v. Republic of Hungary, the D.C. Circuit considered the issue of stateless plaintiffs, and held that they have no standing to sue foreign sovereigns under the FSIA. The court relied heavily on the Restatement (Second) of Foreign Relations in its reasoning. The Supreme Court subsequently granted certiorari, but only agreed to review other issues in this case, thus leaving the D.C. appellate court’s decision in place with respect to stateless individuals. Simon was decided after it arose on remand from the U.S. Supreme Court’s decision two years earlier (2021), heard in conjunction with Federal Republic of Germany v. Philipp, and remanded per curiam to be consistent with the Philipp opinion. The Supreme Court had directed the lower courts to consider plaintiffs’ nationality at the time of the alleged property expropriations for purposes of determining FSIA jurisdiction. In Philipp, the context was Nazi German expropriation of Jewish-owned property, and in Simon, Hungary’s expropriation of Jewish-owned property under antisemitic laws. This article considers the 2023 D.C. circuit court’s holding in Simon in light of indications and implications concerning the standing of stateless FSIA plaintiffs to be garnered from the Supreme Court’s Philipp decision; the evolution of FSIA case law on the issue of standing; the U.S. Restatements of Foreign Relations; and international law. It concludes that a better interpretation of the FSIA does allow standing for stateless individuals.

Recommended Citation

Vivian G. Curran, Shifting Sands for the Stateless Under the Foreign Sovereign Immunities Act, Southern California Interdisciplinary Law Journal, forthcoming (2025).
Available at: https://scholarship.law.pitt.edu/fac_articles/598