Sovereign Immunity

• Author: International Law Group

Jacob Sampson suffered unspeakable treatment as a slave laborer in the Auschwitz concentration camp during World War II and is his family's only survivor. He eventually came to the U.S. and became a citizen. The Claims Conference is an international coalition of 23 Jewish non-profit organizations that, for the past 50 years, has been seeking restitution for Jewish Holocaust survivors.

In 1952, the Claims Conference and Germany (the Parties) concluded Protocols No. 1 and 2, providing (DM) 450 million for the benefit of Holocaust victims. In 1980, the Parties set up the "Hardship Fund" (the Fund) to provide payments to so far uncompensated victims. To receive an award from the Fund, victims may not take legal action to receive compensation. In 1990, the Parties founded the "Article 2 Fund" to remunerate victims who had received minimal or no payments. Under this arrangement, victims may receive a one time payment of DM 5,000, and monthly payments of DM 500. It also precludes litigation to obtain compensation.

Finally, on July 17, 2000, the U.S. and Germany signed the "Foundation Agreement" (the Agreement) to create the "Remembrance, Responsibility and the Future Foundation." It is a joint organization of the German government and German companies to compensate former forced laborers or those whom German companies had otherwise oppressed during the Nazi dictatorship. As part of this Agreement, the U.S. committed itself to oppose any challenges to Germany's sovereign immunity with respect to any claim arising from the Nazi dictatorship.

Beginning in 1948, Sampson submitted several requests for compensation to the various funds. Fifty-eight years later, he received some benefits from the Article 2 fund. Sampson then brought a pro se action in federal court against the Parties, seeking $10 million for his suffering as a slave laborer and alleging that the Claims Conference had conspired to deprive him of full compensation.

The district court dismissed the complaint because it found Germany immune from suit under the Foreign Sovereign Immunities Act (FSIA) and because Sampson lacked standing to sue the Claims Conference. He appealed. The U.S. Court of Appeals for the Seventh Circuit, however, affirms.

First, Sampson argued that the court has jurisdiction under FSIA Section 1605(a)(1), which provides an exception to sovereign immunity where a foreign state has impliedly waived its immunity.

"A jus cogens norm is a special type of customary...