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Hugo Princzv. Federal Republic of Germany: How Far Does the Long-Arm Jurisdiction of US Law Reach?
Published online by Cambridge University Press: 21 July 2009
Extract
In order to present the Princz case1 to a reader unfamiliar with US law, some introductory comments of a general nature are considered advisable. For the reader familiar with US law, it is suggested that you jump over these comments and go directly to the presentation of the case.
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References
1. Princz v. Federal Republic of Germany, 26 F.3d 1166(1994), reproduced in 33 ILM 1483(1994).
2. The ‘territorial principle’ is set forth in The Schooner Exchanges. M'Faddon, 11 US (7 Cranch)116,3 L.Ed. 287 (Sup. Ct. 1812).
3. See Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, 1955 ICJ Rep. 4. See also I.Brownlie, Principles of Public International Law 381,4th ed.(1990). Brownlie, at 385, submits that the autonomy of the state in determining who are its nationals must be in conformity with international law, and is conditioned by the discretion of other states in deciding whether or not to recognize the state.
4. See T. Buergenthal & H. Maier, Public International Law 170 (1985).
5. Although some publicists in Anglo-American jurisprudence argue that the means by which the accused is brought into the state's custody is irrelevant to the validity or invalidity of the state's exercise of jurisdiction under one of the traditional bases, that view is not universally shared.
6. This principle is criticized because it subjects the accused to a legal system with which he has no contact and whose rules he may not even know or understand. See Brownlie, supra note 3, at 303; D. Ott, Public International Law in the Modern World 139 (1987); and W. Levi, Contemporary International Law 145–146, 2nd ed. (1991).
7. See Section 6, infra.
8. See Levi, supra note 6, at 150.
9. Id., at 89.
10. This paragraph is derived from Brownlie, supra note 3, at 324–325.
11. Legal persons of equal standing cannot have their disputes settled in the courts of one of them.
12. See The Schooner Exchange case, supra note 2.
13. Communist states held to the principle of absolute immunity because they argued that it was an attribute of sovereignty. The Chinese communists continue to argue that human rights is an internal affair. See Levi, supra note 6, at 91.
14. Letter from J.B. Tate, Acting Legal Adviser of the Department of State, to P.B. Perlman, Acting Attorney General, dated 19 May 1952, 26 Dept. State Bull. 984 (1952).
15. Foreign Sovereign Immunities Act of 1976, 90 Stat. 2891,28 USC, S. 1602–11, reproduced in 15 ILM 1388 (1976).
16. See Atkeson, T., Perkins, S. & Wyatt, M., H.R.U315 – The Revised State-Justice Bill on Foreign Sovereign Immunity: Time for Action, 70 AJIL 298 (1976).CrossRefGoogle Scholar
17. The Restatement interprets “commercial activity” in this section as an activity “concerned with production, sale, or purchase of goods; hiring or leasing of property; borrowing or lending of money; performance of or contracting for the performance of services; and similar activities of the kind that are carried on by natural or juridical persons.” Restatement (Third) of the Foreign Relations Law of the United States, S. 453 (1987).
18. Complaint Letelier v. The Central Nacional de Informaciones, No. 78–1477 (DDC, filed 8 Aug.1978). See Brower, C., Bistline, F. Jr, & Loomis, G. Jr, The Foreign Sovereign Immunities Act of 1976 in Practice, 73 AJIL 200, at 201 (1979).Google Scholar Ironically, according to the explanation provided to Congress, this exception was included in the FSIA to deal primarily with “the problem of traffic accidents”, H.R. Rep. No. 1487,94th Cong. 2d Sess. 20 (1976). See also Delaume, G., Long-Arm Jurisdiction Under the Foreign Sovereign Immunities Act, 74 AJIL 640, at 650(1980).Google Scholar
19. Letelier v. Republic of Chile, 502 F. Supp. 259 (DDC 1980).
20. Letelier v. Republic of Chile, 567 F. Supp 1490 (SDNY) and 575 F. Supp. 1217 (SDNY 1983).
21. Letelier v. Republic of Chile, 748 F. 2d 790 (2d Cir. 1984) cert, denied 105 S.Ct. 2656 (1985). See also Ott, supra note 6, at 157; and Remarks by Mark Feldman, in American Society of International Law, Proceedings of the 80th Annual Meeting 225 (1986).
22. 748 F. 2d 790, at 795.
23. 28 LJSCA, S. 1350. This “legal Lohengrin” as it was termed by Judge Friendly, since no one Seemed to know where it came from, derives from the First Judiciary Act adopted by the first Congress in 1789. Since there is no legislative history for this Act, it is not clear what it was designed to do. Since foreign sovereign states enjoyed absolute immunity from suit in the 18th century, if Congress had intended to limit the principle of sovereign immunity it is believed that it would have done so expressly and not by means of this Act. Consequently, the Alien Ton Claims Act is not Seen to provide a jurisdictional basis for suits against foreign states. Jurisdiction under this Statute has been upheld for “tortious” acts committed by aliens outside the United States. See Filártiga v Pena-Irala, 630 F. 2d 876(2d Cir. 1980), reproduced in 19 ILM 966 (1980). See also B. Ristau, The Alien Tort Act, in American Society of International Law,supra note 21, at 226.
24. The Deputy Legal Adviser to the State Department was asked how the FSIA could be applied to human rights violations when it was the intent of the drafters to abolish immunity only with respect to commercial activities. His reply was that “the FSIA is primarily but not entirely limited to commercial activities in its scope. There are two sections not pertaining to commercial activities: S. 1605(a.3) on expropriation, and S. 1605(a.5) on non-commercial torts.But for both of these, jurisdiction is limited to situations where the activity is closely connected to the United States by specifically defined contacts.” See Remarks by Mark Feldman, supra note 21, at 232.
25. According to Ristau (supra note 23), since the Second Circuit's 1980 decision in the Filártiga case, there have been a number of attempts to use the Alien Ton Claims Act as a “jurisdictional predicate” for suits against foreign states. In each of the following cases, jurisdiction was alleged under the FSIA and, alternatively, under the Alien Ton Claims Act, and the courts rejected the claims: 1. In re Korean Airlines Disaster of September 1,1983, 575 F. Supp. 342 (DDC 1983);2. Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 (9th Cir. 1992);3. Tel-Oren v.Libyan Arab Republic, 726 F. 2d 774 (DC Cir. 1984), reproduced in 24 ILM 370 (1985); and 4.Lafontant v. Aristide, 1994 US Dist. LEXIS 641 (EDNY, 27 Jan. 1994) (dismissed on the basis of head of state immunity). According to Dellapena (infra note 32), Aristide is the first example of the State Department suggesting “head of state immunity”. In Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (DDC 1985), a case involving Swedish plaintiffs who sought declaratory and injunctive relief and damages against the Soviet Union for the illegal seizure in 1945 and possible death of the Swedish humanitarian, Raoul Wallenberg, the Soviet Union, in a diplomatic note delivered to the US Embassy in Moscow, asserted absolute sovereign immunity and the district court entered a default judgment finding that jurisdiction had been established under the FSIA. The district court, inter alia, found that the Soviet Union, by failing to appear, had not raised the defence of immunity before the court.
26. Opinion of the US Court of Appeals for the District of Columbia Circuit, reproduced in 33 ILM 1483 (1994).
27. Mr.S.R. Perles, Mr.Princz's lawyer, informed me that the 1965 reparations programme involved a one time lump-sum payment of approximately 5,000 DM, whereas Mr. Princz sought a pension similar to the 1955 programme of 500 or 600 DM per month.
28. Princz v. Federal Republic of Germany, 813 F. Supp. 22, at 26 (DDC 1992).
29. Princz v. Federal Republic of Germany, 998 F. 2d 1 (DC Cir. 1993).
30. Princz v. Federal Republic of Germany, supra note 1, reproduced in 33ILM1483, at 1487(1994).
31. Id., at 1489.
32. Id.
33. Cf. J. Dellapenna, Has the Time Come to Revise the Foreign Sovereign Immunities Act?, in American Society of International Law, Proceedings of the 88th Annual Meeting 509 (1988).Dellapenna argues that “the Foreign Sovereign Immunities Act is a poorly drafted statute […], there is no coherent concept of what constitutes a ‘commercial act.’ Nor is there any coherent concept of when a commercial act either ‘occurs in’ or ‘causes a direct effect in’ the United States.”
34. Princz v. Federal Republic of Germany, supra note 1, reproduced in 33 ILM 1483, at 1489(1994).
35. Id., at 1489–1490. Under the reasoning in the Letelier case, is the leasing of prisoners as slave labour a commercial activity which a private person may “lawfully” undertake? It was clearly lawful under the municipal law of Germany at the time, but illegal under international law.
36. Id., at 1491.
37. Id., at 1490.
38. Id.
39. Id.
40. No.94–909, Hugo Princz v. Federal Republic of Germany, On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, Motion for Leave to File Brief as Amici Curiae and Brief of Individual Professors of International Law as Amici Curiae in Support of Petitioner. Professor N.N. Kittrie of the Washington College of Law of the American University was the Counsel of Record for the Amici, and was accompanied by 21 other law professors from different law schools in the United States.
41. Princz u Federal Republic of Germany, supra note 1, reproduced in 33 ILM 1483, at 1491 (1994).A similar argument was recently made in Britain in a preliminary hearing regarding the immunity of the government of Kuwait in an action brought by a British citizen before a UK court who charged that he had been tortured by Kuwaiti governmental agents in 1991 in Kuwait and had continued to receive threats in the United Kingdom since then. The plaintiff argued that “acts including torture, which are contrary to the jus cogens, are to be treated as without the general immunity from the jurisdiction of the courts of the United Kingdom conferred by […] the State Immunity Act of 1978”. In the preliminary hearing on the issue of immunity, Justice Mantell found the government of Kuwait “provisionally” immune from suit (subject to a proper trial on the issues) since the acts of torture committed in Kuwait were outside the jurisdiction of the British courts and the threats in the United Kingdom could not be inferred to have been made “at the behest” of the government of Kuwait. See Suleiman al-Adsani and the Government of Kuwait and Ors., High Court of Justice, Queen&s Bench Division, 15 March 1995.
42. 28 USC.S. 1605(a.l).
43. Princzi v.Federal Republic of Germany.supra note 1, reproduced in 33 ILM 1483, at 1492(1994), citing Siderman de Blake, 965 F. 2d 719.
44. Id.
45. Id.
46. “Because I cannot agree that the FSIA requires us to slam the door in the face of Hugo Princz, I dissent”. Id., at 1502.
47. Id., at 1495.
48. Id., at 1497.
49. Given the events in Cambodia, Yugoslavia, and Rwanda, the following paragraph is an example of Judge Wald's perspective: “[t]he principle of nonderogable peremptory norms evolved due to the perception that conformance to certain fundamental principles by all states is absolutely essential to the survival of the international community. […] Were the conscience of the international community to permit derogation from these norms, ordered society as we know it would cease.” Id., at 1499.
50. Id., at 1499.
51. Id., at 1500.
52. Id.
53. Id., at 1502. Writing this on the 50th anniversary of the United States' bombing of Hiroshima, following Judge Wald's line of reasoning, one cannot help but ask whether the United States should have realized, on 6 August 1945, that it might one day be held accountable for its indiscriminate attack on Japanese civilians. In due deference to Judge Wald, this hyperbolic language is derived from the argument in the brief of the Amici.
54. In our view, the ‘adequacy’ of the reparations is a separate issue, the fact that the German government recognized an obligation towards the victims is sufficient for our purposes.
55. Id., at 1486.
56. Id., at 1492.
57. Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes Against Humanity, 8 ILM 68 (1969).
58. On 19 September 1995, in Bonn, the German Government signed a settlement agreeing to pay US$ 2.1 million to Princz and ten other Holocaust survivors, with most going to Princz. He will also be paid an undisclosed sum by four German companies whose predecessors used him as a slave labourer. SeeT. Locy, Holocaust Survivor's Hard Won Triumph, Washington Post, 20 September 1995, at Al and A8.
59. For the texts of S. 825 and H.R. 934, the Senate and House proposals to amend the FSIA, See American Society of International Law, Proceedings of the 88th Annual Meeting 515 (1994).
60. See Senate bill S. 735.
61. See House of Representatives bill H.R. 1710.
62. The US Congress, at the time of writing, is on its August summer recess. No action is expected on this bill earlier than the autumn of 1995.
63. Testimony of J.S. Borek before the Subcommittee on Courts and Administrative Practice of The Committee on the Judiciary, United States Senate on S. 825 (21 June 1994).
64. Siderman de Blake, supra note 23.