Sampson, Jacob v. Federal Republic

In the
United States Court of Appeals
For the Seventh Circuit

No. 97-3555

Jacob Sampson,

Plaintiff-Appellant,

v.

Federal Republic of Germany and
Claims Conference, Article 2 Fund,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 6242--Ann Claire Williams, Judge.

Argued February 13, 2001--Decided May 23, 2001

Before Manion, Kanne, and Evans, Circuit
Judges.

Manion, Circuit Judge. Jacob Sampson,
pro se, sued Germany for his imprisonment
in Nazi concentration camps, and sued
Germany and the Conference on Jewish
Material Claims Against Germany, Inc.
("Claims Conference") for reparations
from funds created for Holocaust
survivors. The district court dismissed
the complaint concluding that Germany was
immune from suit and that Sampson lacked
standing to sue the Claims Conference.
Sampson appeals. We affirm.

I.

Sampson’s complaint alleges horrors
which are beyond belief, and the evils he
describes cannot be condemned in strong
enough terms./1 In 1939, Sampson was
imprisoned in the Lodz ghetto in Poland.
He was subsequently transported by cattle
car to the Auschwitz concentration camp,
where he was forced to perform slave
labor. At Auschwitz, the Gestapo killed
all sixty members of his family. Sampson
somehow survived, and he is now a United
States citizen and resident of Chicago.

The Claims Conference is an
international coalition of twenty-three
Jewish nonprofit organizations. For
nearly half a century, the Claims
Conference has engaged in discussions
with Germany to secure restitution for
Jewish survivors of the Holocaust. In
1952, the Claims Conference and Germany
agreed on Protocols to achieve this goal.
Protocol No. 1 called for Germany to
"redress . . . [Nazi] wrongs" and "take
as soon as possible all steps within
[its] constitutional competence to ensure
the carrying out of the [agreed upon]
programme." Pursuant to this Protocol,
Germany enacted the German Federal
Indemnification Law, which provided for
restitution to Holocaust victims. Since
restitution would be impossible as a
practical matter in many cases, the
parties also entered into Protocol No. 2.
Under Protocol No. 2, Germany agreed to
pay Israel DM 450 million for the benefit
of the Claims Conference which would use
the money to provide for the "relief,
rehabilitation and resettlement of Jewish
victims of National Socialist persecution
[who did not live in Israel], according
to the urgency of their needs." Disputes
concerning the disbursement of this money
would be handled by an Arbitral
Commission established between Israel and
Germany.

However, not every Holocaust survivor
received compensation through this
process. Accordingly, in 1980, the Claims
Conference and Germany established the
"Hardship Fund" to give a one-time
payment to Holocaust survivors who had
not received prior compensation. The
Claims Conference administers the
Hardship Fund, but its sole role is to
determine whether the claimants meet the
German guidelines--not to differentiate
among qualified applicants in the amount
of payment. The Hardship Fund prohibits
"a right of action to receive
compensation."

In 1990, Germany and the Claims
Conference established the "Article 2
Fund" to provide compensation to
Holocaust victims who had received
minimal or no compensation. The Article 2
Fund provides for a one-time payment of
DM 5,000 and monthly payments of DM 500
to these individuals. The Claims
Conference also administers the Article 2
Fund, but has no discretion to deviate
from Germany’s guidelines. The Article 2
Fund declares that "[t]here is no legal
claim to the payments provided according
to this agreement."

Most recently, on July 17, 2000, the
United States and Germany signed an
agreement (the "Foundation Agreement")
which created the "Remembrance,
Responsibility and the Future Foundation"
(the "Foundation"). The Foundation is a
joint instrumentality of the German
government and German companies formed to
make payments to individuals who were
forced laborers under the Nazi regime or
who suffered injury or property loss due
to the acts of German companies. As part
of the Foundation Agreement, the United
States promised to "take appropriate
steps to oppose any challenge to the
sovereign immunity of the Federal
Republic of Germany with respect to any
claim . . . concerning the consequences
of the National Socialist era and World
War II." The Agreement took effect on
October 19, 2000.

Sampson first requested compensation
from Germany in 1948. This effort
received no response. In 1981, he filed a
claim with the Hardship Fund, which also
received no response. However, in
February 1996, Sampson was compensated;
he received a one-time payment of DM
5,000 as well as monthly payments of DM
500 retroactive to August 1995 from the
Article 2 Fund.

Subsequently, Sampson filed suit in
federal district court against Germany
and the Claims Conference seeking $10
million plus costs. Sampson sought
compensation from Germany based on his
enslavement during World War II, and from
Germany and the Claims Conference for an
alleged conspiracy to deprive him of full
compensation for his injuries.
Specifically, Sampson alleged the
defendants conspired to embezzle funds
intended for Holocaust victims, breached
their covenant with him, and
discriminated against him.

Germany and the Claims Conference moved
to dismiss Sampson’s complaint. The
district court dismissed the claims
against Germany, concluding Germany was
immune from suit under the Foreign
Sovereign Immunities Act ("FSIA"), 28
U.S.C. secs. 1330, 1602-11, and under the
act of state doctrine. The district court
also granted the Claims Conference’s
motion to dismiss, concluding that
Sampson had no right to payment by the
Claims Conference and that the act of
state doctrine precluded suit against the
Claims Conference in any event.

Sampson appealed the dismissals to this
court. On appeal, this court appointed
Dean Howard Eisenberg and Professor
Joseph Kearney of Marquette University
Law School as amicus curiae ("Amicus") to
argue on Sampson’s behalf. Amicus briefed
the issue of whether Germany has immunity
under the FSIA for acts which violate jus
cogens norms of customary international
law, and whether these claims are barred
by a statute of limitations. This court
postponed oral argument to permit the
United States government to file a brief.
The United States government filed a
brief as amicus curiae (the "United
States") in support of Germany’s argument
that it had sovereign immunity for its
acts during World War II.

II.

On an appeal from a motion to dismiss,
we review the dismissal de novo,
accepting all well-pleaded
factualallegations in the complaint as
true, and making all reasonable
inferences in the non-movant’s favor. See
Gonzalez v. City of Chicago, 239 F.3d
939, 940 (7th Cir. 2001). In this case,
the district court dismissed the counts
against Germany based on sovereign
immunity.

"We start from the settled proposition
that the subject matter jurisdiction of
the lower federal courts is determined by
Congress ’in the exact degrees and
character which to Congress may seem
proper for the public good.’" Argentine
Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 433 (1989) (quoting Cary v.
Curtis, 44 U.S. (3 How.) 236, 245
(1845)). Relevant to this appeal is the
FSIA, the federal statute in which
Congress defined "the sole basis for
obtaining jurisdiction over a foreign
state in our courts." Id. at 434./2

Specifically, the FSIA provides that
"[s]ubject to existing international
agreements to which the United States is
a party at the time of the enactment of
this Act[,] a foreign state shall be
immune from the jurisdiction of the
courts of the United States and of the
States except as provided in sections
1605 to 1607 of this chapter." 28 U.S.C.
sec.1604. The FSIA also provides that
"[t]he district courts shall have
original jurisdiction without regard to
amount in controversy of any nonjury
civil action against a foreign state . .
. as to any claim for relief in personam
with respect to which the foreign state
is not entitled to immunity either under
sections 1605-1607 of this title or under
any international agreement." 28 U.S.C.
sec. 1330(a). Thus, "[u]nder the Act, a
foreign state is presumptively immune
from the jurisdiction of United States
courts; unless a specified exception
applies, a federal court lacks subject-
matter jurisdiction over a claim against
a foreign state." Saudi Arabia v. Nelson,
507 U.S. 349, 355 (1993)./3
Accordingly, we must determine whether
the general grant of sovereign immunity
in the FSIA, or one of the exceptions,
applies to Sampson’s claims.

Sampson and Amicus argue that this court
has jurisdiction under Section 1605(a)(1)
of the FSIA, which provides an exception
to sovereign immunity where a "foreign
state has waived its immunity . . . by
implication." Specifically, Sampson and
Amicus argue that a violation of a non-
derogable jus cogens norm of customary
international law constitutes an implied
waiver of a foreign state’s sovereign im
munity.

To understand this argument some
additional background is necessary.
Customary international law is the
"general and consistent practice of
states followed by them from a sense of
obligation." See Restatement (Third), The
Foreign Relations Law of the United
States sec. 102(2) (1987). Courts
determine the content of customary
international law by "consulting the
works of jurists, writing professedly on
public law; or by the general usage and
practice of nations; or by judicial
decisions recognizing and enforcing that
law." United States v. Smith, 18 U.S. (5
Wheat.) 153, 160-61 (1820).

A jus cogens norm is a special type of
customary international law. A jus cogens
norm "’is a norm accepted and recognized
by the international community of states
as a whole as a norm from which no
derogation is permitted and which can be
modified only be a subsequent norm of
general international law having the same
character.’" See Siderman de Blake v.
Republic of Argentina, 965 F.2d 699, 714
(9th Cir. 1992) (quoting Vienna
Convention on the Law of Treaties, art.
53, May 23, 1969, 1155 U.N.T.S. 332, 8
I.L.M. 679). Most famously, jus cogens
norms supported the prosecutions in the
Nuremberg trials. See Siderman, 965 F.2d
at 715 (9th Cir. 1992) ("The universal
and fundamental rights of human beings
identified by Nuremberg--rights against
genocide, enslavement, and other inhumane
acts . . . --are the direct ancestors of
the universal and fundamental norms
recognized as jus cogens.").

"Courts seeking to determine whether a
norm of customary international law has
attained the status of jus cogens look to
the same sources [as for customary
international law], but must also
determine whether the international
community recognizes the norm as one
’from which no derogation is permitted.’"
See id., 965 F.2d at 715 (quoting
Committee of U.S. Citizens Living in
Nicaragua v. Reagan ("CUSCLUN"), 859 F.2d
929, 940 (D.C. Cir. 1988)). "While jus
cogens and customary international law
are related, they differ in one important
respect. Customary international law,
like international law defined by
treaties and other international
agreements, rests on the consent of
states." Id. In contrast, a state is
bound by jus cogens norms even if it does
not consent to their application.

"International law does not recognize an
act that violates jus cogens as a
sovereign act." Siderman, 965 F.2d at
718. Thus, a violation of jus cogens
norms "would not be entitled to the
immunity afforded by international law."
See id. Sampson and Amicus note that
Germany’s crimes against humanity during
World War II are not entitled to immunity
as sovereign acts under international law
because they violate jus cogens norms. In
addition, they note that the House Report
when the FSIA was enacted stated that
"the central premise of the bill [is]
[t]hat decisions on claims by foreign
states to sovereign immunity are best
made by the judiciary on the basis of a
statutory regime which incorporates
standards recognized under international
law." H.R. Rep. No. 1487, reprinted in
1976 U.S.C.C.A.N., at 6613. Accordingly,
they urge us to hold that the FSIA’s
implied waiver exception to sovereign
immunity extends to violations of jus
cogens norms.

Initially, we note that we have held in
other contexts that the implied waiver
provision of the FSIA is to be narrowly
construed. See Frolova v. Union of Soviet
Socialist Republics, 761 F.2d 370, 377
(7th Cir. 1985). In fact, "courts rarely
find that a nation has waived its
sovereign immunity, particularly with
respect to suits brought by third
parties, without strong evidence that
this is what the foreign state intended."
Id. See also Princz, 26 F.3d at 1174;
Foremost-McKesson, Inc. v. Islamic
Republic of Iran, 905 F.2d 438, 444 (D.C.
Cir. 1990). Cf. Amerada Hess, 488 U.S. at
442-43 (holding that a foreign state
cannot "waive its immunity under
sec.1605(a)(1) by signing an
international agreement that contains no
mention of a waiver of immunity to suit
in United States courts or even the
availability of a cause of action in the
United States."). Thus, "an implied
waiver depends upon the foreign
government’s having at some point
indicated its amenability to suit."
Princz, 26 F.3d at 1174.

In this case, there is no evidence that
Germany indicated, either expressly or
implicitly, that it was willing to be
sued in the United States based on
actions during World War II. See id.
(concluding no evidence existed that
Germany "indicated, even implicitly, a
willingness to waive immunity for actions
arising out of the Nazi atrocities.").
Sampson responds that the following
constitutes evidence that Germany waived
its sovereign immunity: a letter from the
German government stating that the German
people is responsible for the past; a
letter from the Claims Conference stating
that Sampson was eligible to receive
compensation payments; and a holding by
the German Supreme Constitutional Court
regarding jus cogens norms. See Pl. Br.
at 14. But these statements do not
indicate an intent by the state of
Germany to be subject to suit in United
States courts; they merely demonstrate
that Germany recognizes that its actions
during World War II constituted
violations of jus cogens norms. Nor is
there any other evidence in the record,
much less the strong evidence sufficient
to demonstrate Germany’s intent to waive
its immunity.

Our conclusion that Germany did not
impliedly waive its sovereign immunity
under the FSIA finds support in decisions
rendered by three of our sister circuits.
In Siderman, the Ninth Circuit addressed
a claim that Argentina had impliedly
waived its sovereign immunity based on
the jus cogens norm against torture. The
Court concluded that the Supreme Court’s
holding in Amerada Hess, that the FSIA
was the sole basis of jurisdiction over
foreign sovereigns, precluded a finding
that an implied waiver exception existed
for jus cogens violations. In Princz, a
case involving claims similar to
Sampson’s, the D.C. Circuit reached the
same conclusion. The court based its
holding on its determination that the
implied waiver exception to the FSIA
required an indication that the foreign
sovereign intended to waive its sovereign
immunity. And in Smith v. Socialist
People’s Libyan Arab Jamahiriya, 101 F.3d
239 (2d Cir. 1997), a case involving
international terrorism, the Second
Circuit held that Congress did not intend
the implied waiver provision to extend to
jus cogens violations.

Amicus argues in response that while an
implied waiver under Section 1605(a)(1)
must generally demonstrate a clear intent
by the state to waive its sovereign
immunity, that principle does not apply
to cases involving violations of jus
cogens norms of international law. This
argument tracks Judge Wald’s dissent in
Princz:

Jus cogens norms are by definition
nonderogable, and thus when a state
thumbs its nose at such a norm, in effect
overriding the collective will of the
entire international community, the state
cannot be performing a sovereign act
entitled to immunity.

Princz, 26 F.3d at 1182 (Wald, J.,
dissenting). See also Adam C. Belsky, et
al., Comment, Implied Waiver Under the
FSIA: A Proposed Exception to Immunity
for Violations of Peremptory Norms of
International Law, 77 Cal.L.Rev. 365, 396
(1989) ("Whether or not states intend to
waive their immunity by conducting
commercial activities in foreign states,
their actions are not recognized as
sovereign acts and are not accorded
immunity under the restrictive theory of
immunity. Similarly, because, under
international law, states are not
recognized as acting within their
sovereign capacity when they derogate
from a rule of jus cogens, they should
not be entitled to claim sovereign
immunity.").

Amicus further points to Chief Justice
Marshall’s famous statement that "an act
of Congress ought never to be construed
to violate the law of nations if any
other possible construction remains," see
Murray v. The Schooner Charming Betsy, 6
U.S. (2 Cranch) 64, 118 (1804), arguing
that because under international law
violations of jus cogens norms constitute
a waiver of immunity, we should interpret
them as a waiver under the FSIA also. The
principle on which Amicus relies in
making this argument is known as the
"Charming Betsy canon," and it has
traditionally justified a narrow
interpretation of ambiguous legislation
to avoid violations of international law.

While the Charming Betsy canon directs
courts to construe ambiguous statutes to
avoid conflicts with international law,
international law itself does not mandate
Article III jurisdiction over foreign
sovereigns. In other words, although jus
cogens norms may address sovereign
immunity in contexts where the question
is whether international law itself
provides immunity, e.g., the Nuremberg
proceedings, jus cogens norms do not
require Congress (or any government) to
create jurisdiction. Because
international law is silent on the grant
of federal court jurisdiction at issue,
we interpret the FSIA without reference
to the Charming Betsy canon.

Nevertheless, Amicus argues that the
Charming Betsy canon requires us to
construe the terms of an ambiguous
statute so that it is consistent with the
content of international law. Even
assuming the FSIA is ambiguous, Amicus’s
reading of Charming Betsy would require
us to apply the canon even where it is
unnecessary to avoid a violation of
international law. Judicial support for
this view can be found in a few isolated
statements. For example, in her dissent
in Princz, Judge Wald cited the well-
established principle that
"[i]nternational law is part of our law,"
Paquete Habana, 175 U.S. 677, 700 (1900),
and claimed that therefore "we must,
wherever possible, interpret United
States law consistently with
international law." Princz, 26 F.3d at
1183 (Wald, J., dissenting). See also
Amerada Hess Shipping Corp. v. Argentine
Republic, 830 F.2d 421, 426 (2d Cir.
1987), rev’d on other grounds, 488 U.S.
428 (1989) ("Since international law
would deny immunity in these
circumstances, we would construe the FSIA
to grant immunity only if Congress
clearly expressed such an intent.").
Citing Charming Betsy, Judge Wald further
concluded that "[t]he only way to
reconcile the FSIA’s presumption of
foreign sovereign immunity with
international law is to interpret sec.
1605(a)(1) of the Act as encompassing the
principle that a foreign state implicitly
waives its right to sovereign immunity in
United States courts by violating jus
cogens norms." Princz, 26 F.3d at 1183
(Wald, J., dissenting).

We note that the D.C. Circuit rejected
Judge Wald’s view, holding instead that
the intent of Congress would have to be
clearer before it would be appropriate to
find an implied waiver of sovereign
immunity for jus cogens violations. As
Judge Ginsburg noted in Princz:

We think that something more nearly
express [than the FSIA implied waiver
provision] is wanted before we impute to
the Congress an intention that the
federal courts assume jurisdiction over
the countless human rights cases that
might well be brought by the victims of
all the ruthless military juntas,
presidents-for-life, and murderous
dictators of the world, from Idi Amin to
Mao Zedong. Such an expansive reading of
sec. 1605 (a)(1) would likely place an
enormous strain not only upon our courts
but, more to the immediate point, upon
our country’s diplomatic relations with
any number of foreign nations. In many if
not most cases the outlaw regime would no
longer even be in power and our
Government could have normal relations
with the government of the day--unless
disrupted by our courts, that is.

26 F.3d at 1174, n.1.
 Moreover, although international law is
"part of our law," it does not follow
that federal statutes must be read to
reflect the norms of international
law./4 Cf. United States v. Yunis, 924
F.2d 1086, 1091 (D.C. Cir. 1991) ("Our
duty is to enforce the Constitution, laws
and treaties of the United States, not to
conform the law of the land to norms of
customary international law."). Since
customary international law in the modern
era is often based on the contents of
multi-lateral treaties to which the
United States attaches reservations (or
refuses to join at all), there is also
little reason to indulge in a presumption
that Congress intends courts to mold
ambiguous statutes into consistency with
customary international law. Use of the
canon so as to effectively incorporate
customary international law into federal
statutes when the political branches of
our government may have rejected the
international law at issue seems dubious
at best. Cf. Stanford v. Kentucky, 492
U.S. 361, 369 n.1 (1989) ("We emphasize
that it is American conceptions of
decency that are dispositive [in
interpreting the Eighth Amendment],
rejecting the contention of petitioners
and their various amici . . . that the
sentencing practices of other countries
are relevant.") (emphasis in original).
Indeed, the statutory text provides
immunity "[s]ubject to existing
international agreements to which the
United States [was] a party at the time
of the enactment of the Act," 28 U.S.C.
sec. 1604, language which indicates that
Congress was cautious about the
development and source of future
exceptions to the immunity it granted.

There is even less justification for an
expansive reading of Charming Betsy in
light of the chameleon qualities of
international law. Cf. CUSCLUN, 859 F.2d
at 940 ("[C]ustomary international law is
continually evolving.")./5 If courts
were to interpret statutes according to
their view of what best fits the changing
nuances of customary international law,
they would frequently make decisions that
run up against the foreign policy of the
other two branches of our government. And
rather than encouraging peaceful
relations with other nations, such an
expansive reading of the Charming Betsy
canon would predictably create tensions
in cases like this one, which involve
jurisdiction over foreign sovereigns.

Amicus argues that the phrase "waive[r]
. . . by implication" in section
1605(a)(1), in conjunction with a
legislative history that references
common law examples of waiver, indicates
a congressional intent that courts
develop a common law to determine when an
implied waiver occurs. That would mean a
decision whether an implied waiver exists
would be based on the evolving
recognition of jus cogens norms in United
States courts. If anything, the
legislative history of section 1605(a)(1)
cuts against Amicus’s argument by
providing very specific examples of
implied waiver: "(1) a foreign state has
agreed to arbitration in another country;
(2) a foreign state has agreed that
acontract is governed by the law of a
particular country; and (3) a foreign
state has filed a responsive pleading in
a case without raising the defense of
sovereign immunity." Frolova, 761 F.2d at
377. These are all narrow examples which
have a nexus with legal proceedings in
the United States, and do not suggest a
congressional intent that the list of
potential waivers be extended. Courts
have been reluctant to stretch claims of
implied waiver beyond these examples. See
Socialist People’s Libyan Arab
Jamahiriya, 101 F.3d at 244 ("Our
reluctance to construe the concept of
implied waiver to include all violations
of jus cogens . . . is based on our
understanding of what the 94th Congress
meant when it illustrated the inexact
phrase ’waive[r] . . . by implication’
with examples drawn entirely from
thelitigation context.").

Moreover, Amicus’s common law argument
would be ground-breaking. Amicus
encourages this court to engage in an
evolving understanding of waiver, an
understanding which is necessarily
subject to the vagaries of customary
international law. Customary
international law can evolve
unpredictably without reference to the
understandings of courts or Congress.
While it is true that Congress intended
the FSIA to be "a statutory regime which
incorporates standards recognized under
international law," H.R. Rep. No. 1487,
reprinted in 1976 U.S.C.C.A.N., at 6613,
Amicus’s suggestion would entail a truly
novel and possibly unrestrained form of
jurisdiction. Congress’s general desire
to follow standards recognized under
international law does not provide the
foundation needed to support that
proposed reading of an implied waiver. As
this court has noted, "’[n]o legislation
pursues its purposes at all costs.
Deciding what competing values will or
will not be sacrificed to the achievement
of a particular objective is the very
essence of legislative choice--and it
frustrates rather than effectuates
legislative intent simplistically to
assume that whatever furthers the
statute’s primary objective must be the law.’"
Continental Can Co. v. Chicago Truck
Drivers, Helpers and Warehouse Workers
Union (Independent) Pension Fund, 916
F.2d 1154, 1159 (7th Cir. 1990)
(Easterbrook, J.) (quoting Rodriguez v.
United States, 480 U.S. 522, 525-26
(1987)). Congress could not have intended
to confer a jurisdiction so malleable on
Article III courts without a clear
statement to that effect.

Also, jus cogens norms are even now an
uncertain means to determine whether a
foreign sovereign has waived
jurisdiction, and missteps in this area
would have profound effect. A leading
treatise on international law has stated
that jus cogens is "a comparatively
recent development and there is no
general agreement as to which rules have
this character." See Oppenheim’s
International Law 7 (9th ed. 1992). The
absence of agreement among international
law scholars is so striking that one
commentator expressed the status of jus
cogens in the following terms: "no one
knows where jus cogens comes from, no one
knows whether or how or why it is part of
international law, no one knows its
content, no one knows how to modify it
once it is articulated, and indeed no one
knows whether it even exists." See
Anthony D’Amato, Human Rights as Part of
Customary International Law: A Plea for
Change of Paradigms, 25 Ga. J. Int’l &
Comp. L. 47, 57 (1995-1996). We do not
question that the allegations in
Sampson’s complaint rise to the level of
jus cogens violations--they are a
paradigm case--but that does not mean
that Congress intended an implicit waiver
provision to encompass this expanding
legal doctrine.
 Amicus urges us to look to examples in
areas of the statutory law which are
known for their imprecision, such as
antitrust, that require courts to
elaborate their content through common
law reasoning. But, as the Supreme Court
has noted, antitrust is the exception:
"[i]n antitrust, the federal courts enjoy
more flexibility and act more as common-
law courts than in other areas governed
by federal statute." See Northwest
Airlines, Inc. v. Transp. Workers Union
of America, 451 U.S. 77, 99 n.42 (1981).
The comparison is inapt, moreover. While
certain statutes look to pre-existing
common law definitions for their terms,
or may even call for a common law
interpretation which evolves over the
years, these examples are a far cry from
a common law which develops pursuant to
the ideas of commentators and academics
who do not hold judicial office and whose
reasoning is not grounded in the
framework of positive domestic law. At
least in the former context, courts
develop the common law in accord with
this nation’s legal history and
established norms. Domestic courts (and
for that matter the other two branches of
our government), do not determine the
content of the jus cogens doctrine.
Instead, it emanates from academic
commentary and multilateral treaties,
even when unsigned by the United States.
Only as a last resort should United
States courts infer jurisdiction over
foreign sovereigns through this loosely
woven subject matter. See also Tel-Oren
v. Libyan Arab Republic, 726 F.2d 774,
827 (D.C. Cir. 1984) (Robb, J.,
concurring) ("Courts ought not to serve
as debating clubs for professors willing
to argue over what is or what is not an
accepted violation of the law of
nations."). Absent congressional
direction, such overactive involvement by
our judiciary would challenge the
consent-based structure of our
constitutional system.

In interpreting the FSIA, we are mindful
that "judicial resolution of cases
bearing significantly on sensitive
foreign policy matters, like the case
before us, might have serious foreign
policy implications which courts are ill-
equipped to anticipate or handle."
Frolova, 761 F.2d at 375. The potential
scope of a customary international law
exception to foreign sovereign immunity,
even in the jus cogens context, would
allow for a major, open-ended expansion
of our jurisdiction into an area with
substantial impact on the United States’
foreign relations. As noted by the
Supreme Court in Oetjen v. Central
Leather Co., 246 U.S. 297, 302 (1918),
"[t]he conduct of the foreign relations
of our government is committed by the
constitution to the Executive and
Legislative--’the political’--Departments
of the Government." Deference to the
foreign policy of the political branches
of our government requires us to exercise
caution before inferring that Congress
intended the implied waiver provision to
cover cases like this one. Cf. Banco
Nacional de Cuba v. Sabbatino, 376 U.S.
398, 433 (1964) (explaining
undesirability of adjudication of
international law where it might create
conflicts with the foreign policy of the
Executive branch in future cases). We
again determine, as we did in Frolova,
that our jurisdiction under the FSIA
should be construed narrowly, and
conclude that Congress did not create an
exception to foreign sovereign immunity
under the FSIA for violations of jus
cogens norms.

Sampson also claims on appeal that the
Claims Conference violated his civil
rights, breached a covenant, and
embezzled funds, in conspiracy with
Germany. In essence, Sampson argues that
he was not compensated as much as he
should have been under the funds
administered by the Claims Conference./6
This argument has already been addressed
in this circuit in Wolf v. Federal
Republic of Germany, 95 F.3d 536 (7th
Cir. 1996).

Sampson lacks standing to bring these
claims because the funds administered by
the Claims Conference do not provide him
with a right to compensation. As this
court stated in Wolf, "[i]n order to
maintain this suit, [plaintiff] must
establish that he had a legally protected
interest that the Claims Conference
invaded." See id. at 544 (citing Warth v.
Seldin, 422 U.S. 490, 500 (1975); Israel
Travel Advisory Service, Inc. v. Israel
Identity Tours, Inc., 61 F.3d 1250, 1258
(7th Cir. 1992)). The Protocols "’bar[ ]
the right of any individual to question
in court the manner in which the [Claims
Conference] is discharging its duties.’"
See Wolf, 95 F.3d at 544 (quoting Revici
v. Conf. of Jewish Material Claims
Against Germany, 174 N.Y.S.2d 825
(1958)). The 1980 Guidelines for the
Hardship Fund state that "[n]o right of
action to receive compensation is hereby
created." See id. The Article 2 Fund
states that "[t]here is no legal claim to
the payments provided according to this
agreement." As explained in detail in
Wolf, neither the Protocols nor the
Hardship Fund Guidelines create any right
to recover for particular individuals or
classes of individuals. Sampson,
accordingly, lacks standing to sue the
Claims Conference.

III.
Sampson’s claims against Germany are
barred by the FSIA and his claims against
the Claims Conference are barred by his
lack of standing. We conclude that
Congress did not create an implied waiver
exception to foreign sovereign immunity
under the FSIA for jus cogens violations.
Accordingly, we hold that the district
court lacked jurisdiction over Sampson’s
suit and therefore do not address the
merits or the application of the act of
state doctrine to this case. The district
court is AFFIRMED.

FOOTNOTES

/1 For purposes of Sampson’s appeal from the
district court’s dismissal, we accept the
allegations of the complaint as true.

/2 It is possible to construe Sampson’s brief as
arguing that jurisdiction exists under the Alien
Tort Claims Act, 28 U.S.C. U.S.C. sec. 1350. See
App. Br. at 9-10 (arguing under international law
that there is universal jurisdiction "when a
heinous crime is involved" and that the Alien
Tort Claims Act provides a cause of action in
this case). Although Amerada Hess involved viola-
tions of customary international law that were
not jus cogens violations, see infra, the Supreme
Court’s statement that our jurisdiction is limit-
ed to exceptions under the FSIA was absolute, and
was based in part on the determination that
Congress intended sovereign immunity under the
statute to apply even in instances where
international law was violated. The Court’s
holding appears to foreclose Sampson’s argument.

/3 Germany and the United States raise the possibil-
ity that the FSIA does not apply in this case
because it involves pre-1952 acts, in which case
Germany would be immune under the law in exis-
tence at that time. For most of this country’s
history, "the United States generally granted
foreign sovereigns complete immunity from suit in
the courts of this country." See Verlinden B.V.
v. Centr. Bank of Nigeria, 461 U.S. 480, 486
(1983) (citing Schooner Exchange v. M’Faddon, 7
Cranch 116 (1812)). This immunity was not consti-
tutionally based, however, but reflected "grace
and comity" by the United States to other na-
tions. See id. In 1952, however, the State De-
partment announced its adoption of a "restric-
tive" theory of foreign sovereign immunity, under
which immunity is limited to suits involving a
foreign sovereign’s public acts, but not its
strictly commercial acts. See id. at 487. In
1976, Congress, for the most part, codified the
restrictive theory in the FSIA. See id. at 488.
We need not decide whether the pre-1952 law or
the less stringent theory of sovereign immunity
codified in the FSIA applies because, as dis-
cussed below, Sampson’s suit against Germany is
barred even under the lower standards of the
FSIA. See also Princz v. Federal Republic of
Germany, 26 F.3d 1166, 1170-71 (D.C. Cir. 1994).

/4 Several early Supreme Court decisions explain
that customary international law is part of the
law of the United States. See, e.g., The Paquete
Habana, 175 U.S. 677 (1900); United States v.
Smith, 18 U.S. (5 Wheat.) 153 (1820). During the
nineteenth century, however, this apparently
meant that customary international law was in-
cluded in the general common law recognized in
Swift v. Tyson, 41 U.S. (14 Pet.) 1 (1842). The
general common law, unlike the federal common law
of today, did not fall under the Supremacy Clause
of the United States Constitution. Thus, the
exact meaning of these early pronouncements on
the domestic role of customary international law
became less certain after the Supreme Court’s
rejection of a general common law in Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938).

One view of customary international law holds
that, post-Erie, it is federal common law. See
Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.
1995) (describing "settled proposition that
federal common law incorporates international
law."); In re Estate of Ferdinand E. Marcos Human
Rights Litigation, 978 F.2d 493, 502 (9th Cir.
1992) ("It is . . . well settled that the law of
nations is part of federal common law."). Another
leading view is that customary international law
is "like common law." See Restatement, sec. 111,
comment d. Under this theory, customary interna-
tional law is federal law that can arguably
supersede prior federal statutes. See, e.g.,
Louis Henkin, The Constitution and United States
Sovereignty: A Century of Chinese Exclusion and
Its Progeny, 100 Harv. L. Rev. 853, 876 (1987).
Both of these positions have come under fire.
See, e.g., Curtis A. Bradley & Jack L. Goldsmith,
Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 Harv.
L. Rev. 815 (1997) (arguing that federalism and
separation of powers principles are violated by
treating customary international law as federal
law); Arthur M. Weisburd, State Courts, Federal
Courts, and International Cases, 20 Yale J. Int’l
L. 1 (1995) (same); Phillip R. Trimble, A Revi-
sionist View of Customary International Law, 33
UCLA L. Rev. 665 (1986) (arguing that treating
customary international law as federal law con-
flicts with the principle of consent upon which
the United States was founded).

In light of the present uncertainty about the
precise domestic role of customary international
law, the statement that international law is part
of our law provides limited support for the pro
posed application of Charming Betsy. Even assum-
ing the most expansive domestic role for interna-
tional law is required by these early Supreme
Court precedents, however, it still does not
follow that Charming Betsy should be read so
broadly, for the reasons developed below.

/5 The fact that some jus cogens norms are beyond
question, such as the norm against slavery, is
beside the point. The fact that jus cogens norms
as a whole are subject to change without input
from any branch of the United States government
is reason to doubt that it is appropriate to
apply the Charming Betsy canon in the manner
suggested by Amicus.

/6 To the extent Sampson’s appeal of these claims
may cover Germany as well as the Claims Confer-
ence, we find that Sampson’s lack of standing,
explained below, is fatal to his claim.