This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should not harm victims of expropriation who have availed themselves of the genocide exception in past years, because discriminatory takings are a violation of international property law. Similarly, in Philipp, the Supreme Court framed the issue as one of domestic takings, concluding that such takings cannot come within an exception to foreign sovereign immunity, but at the same time the Court did not reject prior case law which holds that a taking is not domestic in nature if made by a sovereign against its own vulnerable minorities if it did not treat them as full citizens at the time of the property expropriation. Thus, the same sorts of victims who were recovering under the recent FSIA genocide exception (and had been recovering before the FSIA genocide exception was created) should be able to continue to have their cases heard under the FSIA. This article also considers recent international law developments which maintain that international law is concerned with how states treat their own citizens, suggesting that the FSIA’s domestic versus alien expropriation test, not textually based in the statute, may be ripe for reconsideration, with a view to eliminating the distinction. While such an approach for FSIA’s property expropriation section would not contradict the statute’s text, it would contravene precedential authority, and would not be endorsed under Philipp’s reasoning.
Vivian G. Curran,
Appraising the U.S. Supreme Court’s Philipp Decision,
University of Pittsburgh Law Review, Forthcoming
Available at: https://scholarship.law.pitt.edu/fac_articles/459
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