Tag: SCOTUS

Foreign Sovereign Immunities Act: Recent SCOTUS Decision

Foreign Sovereign Immunities Act: Recent SCOTUS Decision

 

Last year, the Supreme Court of the United States (SCOTUS) made multiple decisions addressing the application of the Foreign Sovereign Immunities Act (FSIA). This federal law was enacted in 1976, creating the legal presumption that foreign nations are not subject to the jurisdiction of American courts. There are exceptions, however, if the foreign nation’s actions are considered “foreign state activity” under Section 1605 in the United States Code. Below is one recent SCOTUS decision on this matter.

 

Philipp Case

 

The case, Federal Republic of Germany v. Philipp, involves a 42-piece collection of medieval religious art known as the Guelph Treasure. The art’s estimated value is $250 million and is on display at Berlin’s Museum of Decorative Arts. Phillip, the plaintiffs, were heirs of a group of German-Jewish art dealers who sold the work in 1935 to the state of Prussia during the Nazi regime after initially buying the artifacts in 1929. The legal issue was whether Hitler’s government forced the sale to the state.

 

The plaintiffs first brought their legal claim before the German government’s Limbach Commission, which determined that the sale was fair and that the art did not need to be returned. The plaintiffs then filed suit in U.S. court against Germany and the federal body responsible for the operation of the museum housing the artifacts. The plaintiffs argued that sovereign immunity does not apply and the coerced sale constituted an act of genocide, in violation of international human rights law. Germany argued that sovereign immunity applied and a foreign nation’s taking of the property of its own nationals fell under domestic and not international law.

 

The U.S. District Court rejected Germany’s argument and motion to dismiss, as did the D.C. Circuit court. Germany petitioned the SCOTUS, which held that while the FSIA may allow U.S. courts to have jurisdiction over sovereign nations when property is taken in violation of international law (“expropriation exception”), American courts did not have jurisdiction in the Philipp case because the exception does not apply when a foreign nation takes the property of its own nationals. In its decision, the SCOTUS analyzed both domestic and international law and found that neither supported the plaintiffs’ claims.

 

International Litigation Support

 

International litigation can become complicated very quickly. From determining which law applies, how to properly serve an overseas defendant, or deposing a witness in a foreign country, you should do your research. If you need litigation support for an international lawsuit, contact Ancillary Legal today. We can provide assistance for all your litigation needs. If you need assistance with court reporting, please contact Elizabeth Gallo Court Reporting. 

Detroit Federal Judge Strikes Down Federal Ban on Female Genital Mutilation

 

A federal judge in Detroit held that Congress has no authority to ban female genital mutilation. The decision resulted in the dismissal of charges regarding the procedure against eight individuals. U.S. District Judge Bernard Friedman ruled Congress did not have authority under the commerce clause to ban female genital mutilation because the procedure does not affect interstate commerce. Several news media reported the decision including the Detroit Free Press, the Detroit News and the Associated Press.

 

 

Understanding the Procedure

Common in some parts of Africa, Asia, and the Middle East, female genital mutilation is a procedure that is said to be part of a religious custom for girls in a Muslim sect known as the Dawoodi Bohra. The purpose of female genital mutilation is to ensure girls remain virgins until marriage. The procedure is also purposed to discourage adultery, according to reports. The federal ban on female genital mutilation was born in 1996 and backed by then Senator Harry Reid of Nevada.

The Arguments for the Federal Ban

Two arguments were put forth by the government in support of the federal ban’s constitutionality. The first argument was that Congress has the power to pass the female genital mutilation ban under a treaty ratified by the Senate in 1992. The treaty, according to the government, calls on member countries to provide political and civil rights to men and women and also calls for protection of minors on a non-discriminatory basis. The court found no logical relationship between the treaty and the ban on female genital mutilation. Alternatively, even if the court did find a relationship between the two, it noted that federalism does not allow Congress to enact the ban.

The government’s second argument was that the commerce clause granted Congress authority to ban female genital mutilation. The court also rejected this argument, stating that the procedure could not be classified as an economic or commercial activity. Citing to a U.S. Supreme Court (SCOTUS) decision in United States v. Morrison, the court noted this procedure can not be distinguished from other gender-motivated crimes of violence, which the SCOTUS found not to be part of the interstate market.

The Defendants

The defendants in the case included two Michigan doctors, one who allegedly performed female genital mutilation procedures on nine girls and the other who allowed the procedures to take place in his clinic. Additionally, four mothers who took their daughters for the procedure were charged as well the wife of one of the doctors and a worker who assisted in the surgeries. The court left obstruction charges in place against the defendants, which can carry a prison sentence of up to 20 years. Other criminal charges against the defendants remained in place including conspiracy with intent to engage in illicit sexual conduct defined as the intentional touching of another under the age of 16 with the intent to abuse, degrade, or harass; this charge carries a maximum sentence of life in prison.

While Michigan is one of 27 states in the nation that have laws on the books banning female genital mutilation, its law was passed to later to apply to the case at hand.