Whiteman v. Dorotheum Gmbh & Co. Kg

STRAUB, Circuit Judge,

dissenting.

The majority holds today that claims against Austria for property taken by the Nazi regime in the lead-up to the Holocaust must be dismissed as nonjusticiable under the political question doctrine simply because the United States, appearing as an amicus curiae in this case, has filed a statement of interest urging dismissal to facilitate Austria’s resolution of claims through a general settlement fund (GSF) created in January 2001. This holding is an unwarranted and troubling expansion of the nonjusticiability doctrine, which should only apply where a court, in exercising jurisdiction, would truly be exceeding its *76authority or contradicting foreign policy decisions by the Executive.

I understand the majority’s concern for the Executive’s stated foreign policy interests in providing justice to Holocaust survivors and maintaining good relations with Austria and other interested countries. I agree with the majority, moreover, that we ought to bear these interests in mind as we exercise whatever discretion the law affords us. However, the law is clear that a case does not “lie[ ] beyond judicial cognizance” simply because it “touches foreign relations.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Indeed, this is why discretionary doctrines such as executive deference and international comity have arisen, doctrines that only apply after threshold jurisdictional issues have been decided and that require an independent judicial assessment of the weight of the interests at stake and of the adequacy of alternative relief available to the plaintiffs.

In dismissing this case at the outset under the mandatory political question doctrine based solely on an executive statement of interest, the majority effectively cedes jurisdiction to the Executive to determine, on an ad hoc basis, when cases can and cannot be brought against a foreign sovereign. Because I find this approach contrary not only to constitutional precedent but also to statutory law on foreign sovereign immunity, I respectfully dissent.

I. Justiciability

In Baker v. Carr, a challenge to Tenne-see’s apportionment scheme, the Supreme Court rejected the state’s argument that the issue presented was “nonjusticiable” (ie., not appropriately resolved through adjudication). 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In so doing, the Court spent much of its opinion systematizing the somewhat-disordered prior case law on justiciability, and identified six existing bases for dismissing a case as non-justiciable:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217, 82 S.Ct. 691. To warrant dismissal, one of these formulations must be “inextricable from the case at bar,” lest the political question doctrine become a “political cases” doctrine. Id. Of particular relevance here, the Court also warned that, although the conduct of foreign affairs is the province of the political branches, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691.

As the majority relies exclusively on the fourth Baker test, I will focus on that test as well. However, as an initial matter, I note that Whiteman’s complaint clearly would survive the other Baker tests. With respect to the first Baker test, while foreign policy is committed in the first instance to the Executive, tort claims against foreign countries and individuals under the law of nations, as well as issues of sovereign immunity, are constitutionally committed to “none other than our own — the Judiciary.” Kadic v. Karadzic, 70 F.3d *77232, 249 (2d Cir.1995) (internal quotation omitted), cert. denied, 518 U.S. 1005, 116 S.Ct. 2524, 135 L.Ed.2d 1048 (1996); see also Alperin v. Vatican Bank, 410 F.3d 532, 551 (9th Cir.2005) (“Reparation for stealing, even during wartime, is not a claim that finds textual commitment in the Constitution.”), petition for cert, filed, 74 U.S.L.W. 3146 (Sept. 7, 2005) (No. 05-326). Indeed, the Foreign Sovereign Immunity Act (“FSIA”), which, as explained below, was intended to de-politicize immunity determinations, confirms this constitutional allocation.

As for the second and third Baker tests, Whiteman’s property claims are manageable through traditional adjudication. See Alperin, 410 F.3d at 551 (“[T]he Property Claims ultimately boil down to whether the Vatican Bank is wrongfully holding assets. Deciding this sort of controversy is exactly what courts do.”); id. at 555 (finding that adjudication of whether property was wrongfully taken during WWII and valuation of property did not require any nonjudicial policy determinations). Likewise, the universally recognized norms of international law invoked by Whiteman — purely for purposes of establishing jurisdiction under the FSIA — “provide judicially ... manageable standards for adjudicating suits” and “obviate[] any need to make policy decisions of the kind normally reserved for nonjudicial discretion.” Kadic, 70 F.3d at 249.

The fourth and sixth tests are basically coterminous with the fifth, in that they involve cases where an exercise of jurisdiction, although not per se outside the judiciary’s authority, would somehow contradict actions taken by the political branches; I will therefore discuss them together. Given the sparsity of analysis of these factors in Baker and subsequent cases, one clue to what the Baker Court had in mind is the sole case cited by Baker for the proposition that “many [questions of foreign relations] uniquely demand single-voiced statement of the Government’s view,” Baker, 369 U.S. at 211, 82 S.Ct. 691: Doe v. Braden, 57 U.S. (16 How.) 635, 657, 14 L.Ed. 1090 (1853).

Braden was an action for ejectment, in which the plaintiff claimed title to land he acquired from the Duke of Alagon, who in turn had been granted this land by the King of Spain. The King of Spain, however, had annulled this grant as part of a treaty with the United States. The plaintiff argued that the King had no authority under Spanish law to annul the grant, to which the Court responded that this was a political question which the political branches had already answered by signing and ratifying the treaty. See Braden, 57 U.S. (16 How.) at 657. If Braden is the type of case the Baker Court had in mind- and again it is the sole case cited-then the latter tests ought be narrowly construed absent further guidance from the Supreme Court. It is hardly surprising that the Braden Court would find it inappropriate to decide whether a treaty between the United States and Spain was invalid on the ground that, under Spanish law, the King lacked the authority to make one of the stipulations in the treaty; but this hardly establishes a broad principle for other cases touching on executive foreign policy.

In fact, the Supreme Court has expressed doubt as to the importance of these last three tests (as bases for mandatory dismissal). Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (noting that the Baker factors “are probably listed in descending order of both importance and certainty”); see also Alperin, 410 F.3d at 545 (noting, in Supreme Court and lower court opinions, a “disproportionate emphasis” on the first three factors). Moreover, in Kadic, we explained that, in contrast to the first *78three factors, the “fourth through sixth Baker factors appear to be relevant only if judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests.” Kadic, 70 F.3d at 249.

Kadic’s narrow reading of the latter Baker tests accords with one of the few Supreme Court opinions to take up the Baker factors: Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). In that case, the Court unanimously declined to dismiss as nonjusticiable a claim that the Secretary of Commerce had violated federal statutory law by refusing to certify that Japan’s whaling practices were undermining the effectiveness of an international fishery conservation program.20 (Such certification would have triggered a statutory mandate that the Secretary of State impose economic sanctions on Japan.) The Court reached this conclusion despite the fact that the United States, by executive agreement with Japan, had promised under certain conditions not to impose sanctions and despite the defendants’ argument that the sixth Baker factor would be violated by any decision “to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement.” Id. at 229, 82 S.Ct. 691. While recognizing the “significant political overtones” in the case, the Court found that to dismiss the case as nonjusticiable would be to “shirk” the judiciary’s responsibility to interpret and apply the law. Id. at 230, 82 S.Ct. 691.21

Guided by this case law, I find that the property claims presented by this case are clearly justiciable, notwithstanding the 2001 Agreement Between the Austrian Federal Government and the Government of the United States of America Concerning the Austrian Fund “Reconciliation, Peace and Cooperation” (“Agreement”). As the majority acknowledges, the Agreement made clear that the United States was not settling anyone’s claims but was merely committing to advocate dismissal of actions brought within the United States, with the caveat that these actions would be decided by an “independent American judiciary” under neutral legal principles. Ante at [70-72 n. 16].22 Stuart E. Eizens-tat, Special Representative of the President and the Secretary of State on Holocaust issues, confirmed this fact in his January 19, 2001, Declaration in this case, which noted that “the United States has not extinguished the claims of its nationals or anyone else.” The language throughout the Agreement did likewise. For example, the Agreement provided that “[t]he United States will recommend dismissal on any valid legal ground which, under the United States system of jurisprudence, will be *79for the United States courts to determine.” 23 Annex B, Oct 24, 2000, 40 I.L.M. 523, 528 (2001) (emphasis added). The Executive specifically warned Austria that “[t]he United States does not suggest that its policy interests concerning the Fund in themselves provide an independent legal basis for dismissal, but will reinforce the point that U.S. policy interests favor dismissal on any valid legal ground.” Id. at 529 (emphasis added).

Based on precisely this language in the United State’s executive agreement with Germany,24 the Court of Appeals for the Eleventh Circuit recently rejected the defendants’ nonjusticiability argument. Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir.2004). There, the Eleventh Circuit stated:

[T]he plain text of the Foundation Agreement anticipates that federal courts will consider claims against German corporations.... [T]he agreement itself provides that it does not provide an independent legal basis for dismissal. Thus, the executive opted not to settle these claims or to transfer the claims to the Foundation, although it had the power to do so.
As a result, federal court consideration of the present case does not reflect a lack of respect for the executive nor does it interfere with American foreign relations. The United States is in full compliance with the Foundation Agreement so long as it files a statement of interest to courts urging respect for the Foundation as the exclusive forum to resolve these claims.... A statement of national interest alone, however, does not take the present litigation outside of the competence of the judiciary.

Id. at 1235-36 (citation and footnote omitted). The Eleventh Circuit thus concluded that a statement of interest does not render a case nonjusticiable but may still be entitled to deference, and the court afforded such deference by abstaining under an international comity analysis. See id. at 1236, 1237-40.

The majority disagrees with Ungaro-Benages, stating that the Agreement’s language simply reflects a “prudent” clarification by “diplomatic representatives” regarding the possible actions by the independent American judiciary. Ante at [70-72, n. 16]. The majority argues that the United States, simply by declining to guarantee dismissal to Austria, did not waive any right to argue nonjusticiability. This argument, most importantly, overlooks the fact that the United States could have guaranteed dismissal of domestic claims against Austria by entering into a settlement agreement or treaty. See Ungaro-Benages, 379 F.3d at 1235 & n. 11 (providing examples of United States settlements extinguishing domestic claims against foreign governments); cf. Dames & Moore v. Regan, 453 U.S. 654, 665, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (quoting language from executive agreement with Iran explicitly obligating the United States “ ‘to terminate all [relevant] legal proceedings in United States courts’ ”); Hwang Geum Joo v. Japan, 413 F.3d 45, 49-51 (D.C.Cir.2005) (noting how 1951 Treaty waived claims by Allied Powers and their nationals against Japan arising out World War II), petition for cert, filed, No. 05-543 (Oct. 26, 2005). That the Executive declined to exercise this power makes its reservations a delib*80erate policy choice rather than mere “prudent” cautionary statements.

In fact, the history of the settlement negotiations confirms that the Executive’s refusal to waive all existing and potential claims against Germany (and, by dint of the parallel language in the two agreements, Austria) was an intentional part of its foreign policy. As Stuart Eizenstat, the United States’ negotiator of these agreements, reveals in his book about the project, Germany doggedly sought further assurance of a legal peace and was rebuffed.25 Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II 269-78 (2003). In particular, Germany sought “a definitive commitment by the United States to support some legal ground for the dismissal of future suits, rather than simply stating that dismissal was in our foreign policy interests,” but the United States “held fast” to its refusal to “take a formal legal position barring U.S. citizens from their own courts.” Id. at 269. In fact, Germany was warned that if it attempted to portray the agreement as barring all future litigation, the Justice Department would make clear its position “to the contrary.” Id. at 270. And Seth Waxman, Solicitor General at the time and the most adamant opponent within the Administration to allowing the agreement to be construed as barring litigation, crafted the “creative formulation” in the executive agreement that the Executive would file statements of interest favoring dismissal “on any valid legal ground.” Id. at 271. Knowing full well that it had achieved imperfect legal peace at best, Germany signed the agreement, and the following year, Austria signed an agreement containing an identically worded commitment by the Executive to file statements of interest.

In finding this case justiciable, then, we would do no more than what was anticipated in the Agreement, and therefore would show no disrespect for the Executive, nor impermissibly interfere with foreign relations or send any contradictory foreign policy message. To the contrary, the majority’s interpretation undermines the political balance clearly struck by the Executive between assuring Austria of its support for the GSF and refraining from settling victim’s claims.

I also find it telling that the Executive has not, at any point in this litigation, suggested to this Court that Whiteman’s claims are nonjusticiable. In fact, it has implied the contrary. The majority glosses over this fact by broadly reading the Executive’s limited statement in its Supplemental Letter that recent Supreme Court case law “confirms the substantial weight that a court should give to the views of the Executive on this nation’s foreign policy in deciding whether to exercise jurisdiction [under the FSIA].” Ante at [68-69]. As this sentence makes dear, however, the Executive was invoking — not the nonjusticiability doctrine — but rather the discretionary doctrine of executive deference, discussed below in Part II.

In fact, the Executive does not even suggest that its interests, standing alone, *81would support discretionary dismissal. Rather, the Executive states that “it is in the foreign policy interests of the United States for this action to be dismissed on any valid legal ground,” and argues that we should defer to its interests “[t]o the extent that [they] are relevant to any legal arguments advanced by the defendants in seeking dismissal” (emphasis added). This limiting language echoes the carefully-worded promise in the Agreement and appears throughout the letter, which elsewhere characterizes the Executive’s interest as “relevant[t]” and deserving of an “important role” and “serious weight” in the judicial determination of whether to exercise- jurisdiction. Most tellingly, the Executive appealed to “abstention doctrines under which the United State’s foreign policy interests are potentially relevant to a court’s determination whether to exercise jurisdiction,” such as international comity and forum non conveniens, rather than to the political question doctrine.

The modesty of the Executive’s request (relative to the majority’s holding) reflects the legal background to this case. For better or worse, Congress specifically enacted the FSIA to uncouple foreign sovereign immunity decisions from ad hoc foreign policy decisions. As the House Report explained:

A principle purpose of [the FSIA] is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and assuring litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process ... [thereby] conforming] to the practice in virtually every other country ....

H.R.Rep. No. 94-1487, at 7 (1976) (emphasis added), reprinted in 1976 U.S.C.C.A.N. 6604, 6606; see also Verlinden B.V. v. Cent., 461 U.S. 480, 488, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (“Congress passed the [FSIA] in order to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to ‘assur[e] litigants that ... decisions are made on purely legal grounds (quoting House Report)). The majority’s decision today undermines the FSIA by allowing the Executive to determine the fate of litigation against foreign sovereigns simply by arguing that dismissal is in the Executive’s foreign policy interests.

In sum, my understanding of the political question doctrine for cases touching on foreign relations is as follows: Unless there is a clear constitutional commitment to the political branches or some other factor placing the case beyond normal judicial competence, a case may be nonjustieia-ble only if its resolution “would contradict prior foreign policy decisions taken by the political branch” — here, the Executive. Kadic, 70 F.3d at 249. In this case, the operative foreign policy decision is the negotiation of the Agreement, which expressly contemplates the judiciary’s authority to hear these cases and in which the Executive expressly declined to require their dismissal. The majority, however, finds that the Executive’s Statement of Interest, even without any actual contradiction with a prior foreign policy decision, is sufficient to render the case nonjusticiable. While the foreign policy interests asserted in this case might, upon further analysis, be sufficient to warrant dismissal under the discretionary doctrine of international comity, the majority’s expansion of the mandatory political question doctrine is unsupported and troubling in its potentially wide-reaching implications.

II. Executive Deference

In an effort to shore up its justiciability analysis, the majority finds its holding *82“greatly reinforced” by the Supreme Court’s recent case law suggesting an executive deference ground for dismissal in cases implicating our foreign relations. Ante at [70], Indeed, an ambiguous association between the (mandatory) political question doctrine and the (discretionary) doctrine of executive deference pervades the majority opinion, which alternatingly states that “deference” is “appropriate,” see id. at [68-69 & 73-74 n. 18], and “holdfs] that plaintiffs’ claims against Austria and its instrumentalities must be dismissed as nonjustieiable under the political question doctrine,” see id. at [73],

The majority’s conflation of these two doctrines is contrary to the sparse existing precedent on executive deference as an independent ground for dismissal. In Republic of Austria v. Altmann, the main case on which the majority relies for the doctrine of executive deference, the Supreme Court stated in dicta that, “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” 541 U.S. 677, 702, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (emphasis added). At the same time, the Court “expressed] no opinion on the question of whether such deference should be granted in cases covered by the FSIA,” id. (emphasis added), and disclaimed any holding “that executive intervention could or would trump considered application of the FSIA’s more neutral principles,” id. at 702 n. 23, 124 S.Ct. 2240.

Likewise, in a subsequent case, the Supreme Court stated in passing dicta that, with regard to litigation under the Alien Tort Statute against corporations which allegedly participated in the apartheid in South Africa, “there is a strong argument that federal courts should give serious weight to the Executive Branch’s view” that such litigation interferes with the work of the Truth and Reconciliation Commission (which favors “confession and absolution” over “victors’ justice”). Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2766 n. 21, 159 L.Ed.2d 718 (2004) (noting that the Court “need not apply” in that case the “possible limitation ... of case-specific deference to the political branches” (emphasis added)).

As is clear from the language of Alt-mann and Sosa, the Supreme Court has indicated that, in some cases, executive statements of interest might be entitled to significant weight, but it has declined to specify how and when this rule might apply. Certainly, nothing in the language of these eases suggests that dismissal would be required in deference to executive statements — not least because the Alt-mann and Sosa majorities never mention justiciability.26 To the contrary, Altmann stated: “We do not hold ... that executive intervention could or would trump considered application of the FSIA’s more neutral principles.” Altmann, 541 U.S. at 702 n. 23, 124 S.Ct. 2240 (emphasis added).

The majority attempts to tie the executive deference and political question doctrines together by citing to our decision in *83Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), arguing that in that case we relied on statements of interest in applying the political question doctrine. With respect, I disagree with this characterization. In Kadic, we held justiciable international law claims by victims of the Bosnian-Serb leader Radovan Karadzic for atrocities committed in the Bosnian civil war. In so holding, we noted that the United States had filed a statement of interest expressly disclaiming any concern that the case raised a political question. We stated that “[tjhough even an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication, the Government’s reply to our inquiry reinforces our view that adjudication may properly proceed.” Id. at 250. As this language makes clear, Kadic in no way supports the majority’s position that courts may rely on an executive statement in finding a case nonjusticiable, particularly where, as here, the Executive has not even asserted that the case is nonjusticia-ble.27

As set forth supra, the executive deference doctrine suggested by Altmann and Sosa is distinct from the justiciability doctrine applied here by the majority. More importantly, the majority’s conflation of the two sets a dangerous precedent. The justiciability doctrine is severe in its consequence: mandatory dismissal. But this severity is mitigated by the narrowness of its scope, which includes only those cases where the judiciary would truly be exceeding its constitutional authority, not simply treading on areas of overlapping authority. Conversely, the doctrine of executive deference is broad in its scope — potentially applying wherever the executive files a statement of interest counseling dismissal — but limited in its effect because it preserves judicial discretion and contemplates that other factors might override the Executive’s interest.

By joining the two doctrines here as a threshold basis for dismissing this case, the majority creates the potential for a strikingly broad doctrine mandating dismissal whenever the Executive argues that an issue presented to the court threatens to intrude on its foreign policy interests. I find the prospect of such a doctrine troubling as well as novel. Accordingly, I respectfully dissent.28

. Four Justices dissented on the merits but, in finding that relief was warranted, implicitly agreed that the case was justiciable.

. Of course, Congress had spoken in Japan Whaling Ass'n, an essential factor in that case. But Congress has spoken here to, in its decision, in enacting the FSIA, to depoliticize foreign sovereign immunity decisions and subject them to neutral legal principals. See infra at [81-82].

. Indeed, the majority appears to concede that the Agreement cannot be a basis for dismissal. See ante at 70-72 n. 16 (reasoning that, even though the United States refused to commit in the Agreement to arguing a legal ground for dismissal, "intervening developments in foreign policy would provide an additional basis upon which the Executive Branch could now seek dismissal of this case").- Thus, despite the majority's repeated reference to the Agreement, it is clear that it is the Executive’s Statement of Interest that-in an unprecedented fashion-motivates the majority's nonjusticiability holding.

. Ironically, the majority's decision today cuts against the Agreement’s affirmance of the judiciary’s independence.

. This agreement is officially titled the "Agreement Concerning the Foundation 'Remembrance, Responsibility and the Future’ " and is reprinted at 39 I.L.M. 1298 (2000).

. I note that, contrary to the majority’s implication, see ante at [70-72, n. 16], I am in no way relying on Eizenstat's book for my understanding of the Agreement. Rather, the book is useful in confirming that the language of the Agreement means what it says and is not simply, as the majority surmises at ante [70-72, n. 16], carefully vague diplomatic speech. Nor is there any inconsistency between Eiz-enstat’s observation in his book that the Administration refused to waive victims’ claims-a policy decision with which Eizenstat apparently disagreed-and his statement in this case that dismissal would be in the Executive’s foreign policy interests.

. However, Justice Breyer, joined by Justice Souter in a concurrence, stated in passing that the Executive could file a statement of interest counseling dismissal on various grounds, including nonjusticiability. Alt-mann, 541 U.S. at 714, 124 S.Ct 2240 (Breyer, J., concurring). Justice Breyer did not specify what weight such a statement should be accorded or what other circumstances, if any, would need to be presented to support dismissal.

. For this reason, I must respectfully disagree with the majority’s statement, without any citation beyond Kadic, that "our decisions ... have properly relied on ... [executive] statements of interest” in determining justici-ability, ante at [70].

The majority also cites Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C.Cir.2005), which held nonjusticiable claims under the Alien Tort Statute against Japan by foreign nationals from China, Taiwan, South Korea, and the Philippines for crimes involving sexual slavery during World War II. Although the D.C. Circuit gave weight to the Executive’s statement of foreign policy that claims against Japan be resolved through negotiation between states, it also relied on a 1951 Treaty between Japan and the Allied Powers "expressly waiv[ing]” the claims of all Allied citizens and found that it would be absurd if foreign nationals had more rights than American citizens in this regard. See id. at 49-50. Moreover, in Hwang Geum Joo, unlike in this case, the Executive’s statement of interest argued that the case was nonjusticiable and provided reasons based on the first through third Baker tests for finding the case nonjusti-ciable. See id. at 51.

. Because I find the issues presented in this case clearly justiciable, I would remand for a determination of whether circumstances permit and warrant discretionary deference to *84the executive foreign policy interests stated here. In so doing, I would reject Austria's other major threshold objection to jurisdiction, which the majority does not reach: namely, that plaintiffs have failed to plead "rights in property taken in violation of international law are in issue,” see 28 U.S.C. § 1605(a)(3), because international law only limits state expropriation of foreign properties. I would find that international law clearly prohibits expropriation committed in furtherance of genocide and other grave human rights violations, such as is pled here.