21 Fall 2021 party defendants and none of which included a state or sovereign defendant. Moreover, unlike FSIA, where Congress set rules for what violations by foreign countries would trigger jurisdiction in U.S. courts, the ATS simply refers generally to“violations of the law of nations,” leaving the courts to decide whether given violations created a cause of action and whether sovereign immunity would apply. Further, we argued that the Hungarian restitution regime was an inadequate forum based on evidence from the plaintiff’s expert witness. Supreme Court Remand After oral argument, the Supreme Court remanded Simon back to the D.C. Circuit based on a companion case, Federal Republic of Germany v. Philipp.10 In Philipp, the Court granted certiorari on an additional question not presented in Simon: Whether the“expropriation exception”of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,”provides jurisdiction over claims that a foreign sovereign has violated international human rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property. The Court answered this additional question in the negative. It concluded that: The phrase“rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. Thus, the international law of expropriation did not apply to a sovereign’s takings of property from its own nationals. The Court declined to consider the comity issue and directed the lower court, on remand, to assess whether the Philipp plaintiffs were truly“nationals”of Germany at the time of the taking in that case, a forced detrimental sale of an art collection. In a brief, one-sentence order, the Court remanded Simon “for further proceedings consistent with the decision in” Philipp. Litigation is ongoing in the lower courts in both cases. In Simon, Hungary’s wartime expansion and acquisition of areas which had previously been part of neighboring Czechoslovakia, Romania, Yugoslavia, and the Soviet Union, where the U.S. never recognized its sovereignty, poses unique challenges in determining who was considered a Hungarian“national”at the time. Indeed, the plaintiffs asserted at oral argument that the plaintiffs who lived in annexed territories“were never treated as Hungarian nationals” and even those who lived within Hungary’s pre-1938 borders and had previously been treated as nationals were “stripped of all the rights and privileges of nationality and citizenship before their homes were expropriated and they were forced into ghettos and then deported to be murdered in the death camps.” Hungary’s wartime expansions were annulled by the post-war Paris Peace Treaty, under which Hungary also committed to providing“fair restitution” for victims of property takings: Hungary undertakes that in all cases where the property, legal rights, or interests in Hungary of persons under Hungarian jurisdiction have, since September 1, 1939, been the subject of measures of sequestration, confiscation or control on account of the racial origin or religion of such persons, the said property, legal rights and interests shall be restored together with their accessories or, if restoration is impossible, that fair restoration shall be made therefor. On remand, the lower court will weigh these arguments carefully, conscious that its decision – and the comity issue which the Supreme Court did not address this time around – may return to the Supreme Court for further consideration. Stuart Eizenstat famously referred to restitution as the “unfinished business” of the Holocaust. The complexities of the remaining issues on remand reflect the fact that the Simon case’s attempt to achieve restitution for the Jews of Hungary, as of yet, similarly remains unfinished. n Stephen Greenwald is a Board member and President Emeritus of the AAJLJ and a Vice-President and Board member of the IJL. Arthur Traldi is Senior Counsel at The Louis D. Brandeis Center for Human Rights Under Law. Rhonda Lees, Esq., CAE, is a Legal and Association Executive and a Vice-President and Board member of the AAJLJ. Aubrey Lay and Melissa Box provided research assistance for this article. 10. Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021).
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