Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

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In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint.

Lastly, even for acta jure imperii, there are exceptions to jurisdictional immunity. In particular, a State can consent to the exercise of jurisdiction by the foreign court (c.f. for example Art 7 of the UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI), not yet in force, but reflecting customary international law on this point). However, the Federal Foreign Office has explicitly indicated that Germany did not intend to waive its immunity. Moreover, Imperial German actions may well have constituted grave violations of international law as it then stood (see here for a recent assessment). As the ICJ (though controversially) found in Jurisdictional Immunities (paras 81 et seq.), however, there is insufficient State practice and opinio juris supporting the existence under customary international law of an exception to State immunity for such violations.

When is jurisdictional immunity violated?

To the extent that the Court, like the plaintiffs, only addresses acta jure imperii, any finding of Germany not being immune from jurisdiction would violate the United States’ international law obligation to grant this immunity. However, the Court’s decision will most likely not directly consider whether any of the exceptions to immunity under international law applies. Instead, the plaintiffs invoke title 28 US Code section 1605(a)(3), as amended by the 1976 US Foreign State Immunity Act (FSIA), which provides for an exception from jurisdictional immunity in cases

‘in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state (…).’

Notwithstanding whether its requirements are fulfilled, this unusual exception is not backed by practice in other States and does not seem to reflect the scope of immunity from jurisdiction under international law: it is sufficiently broad to include actions properly categorised as acta jure imperii, even if no exception to immunity under international law applies. Therefore, should the Court follow the plaintiffs’ argument and find 28 USC section 1605(a)(3) to be fulfilled for acta jure imperii, it would infringe Germany’s jurisdictional immunity under international law.

Even pending a decision on this point, however, the proceedings up to this point are already of interest for immunity purposes. Looking back at the 19 months since the complaint was filed, it may have come as a surprise that Germany has ended up actively participating in the proceedings to expressly invoke its immunity from jurisdiction as one of the bases for its motion to dismiss the complaint. Its practice elsewhere shows this to be unusual: in recent years, many cases have been brought against the Federal Republic before Italian courts, in the aftermath of the Italian Constitutional Court’s 2014 Sentenza 238 which found the ICJ’s Jurisdictional Immunities judgment to be incompatible with the right of access to the Courts under the Italian constitution. Germany does not participate in these proceedings, not even to formally invoke immunity or to appeal against judgements. Rather, the German government merely transmits a standardised diplomatic note to the Italian foreign office whenever such a case is brought, urging Italy to comply with the Jurisdictional Immunities judgment (the note is reproduced in full in (2018) 73 ZÖR 137, 142-144).

In the present case in New York Germany seemed to follow a similar course of action, fiercely criticised by plaintiff Rukoro as unnecessary delaying tactics. Indeed, it took more than a year until Germany first interacted with the Court. In the meantime, various unsuccessful efforts for proper service of process upon the German government had been undertaken and the initial pre-trial conference had to be adjourned multiple times (for a detailed account of these events see here). Ultimately, the US embassy in Berlin informed the Federal Republic by diplomatic note that, as a defendant in this case, it risked having a judgment by default entered against it. It added:

‘[u]nder U.S. law any jurisdictional or other defense including claims of sovereign immunity must be addressed to the court before which the matter is pending, for which reason it is advisable to consult an attorney in the United States. Otherwise, proceedings will continue without an opportunity to present arguments or evidence’ (emphasis added).

Germany did not take this risk and followed the advice. It refused, however, to accept the note as a proper service of process.

The different steps of these procedural developments must be taken separately from an immunity perspective. First, Germany indicates that ‘[t]he service violates the sovereign immunity of the Federal Republic’. This position is incorrect as a matter of international law. Service of process as such does not yet subject the defendant State to the forum State’s jurisdiction. It merely provides the defendant with all opportunities to react to the claim, not prescribing a certain way or form of reaction. It is therefore not surprising, as Stefan Talmon has rightly pointed out, that Art 22(1) of the UNSCI and Art 16(2) of the European Convention on State Immunity expressly foresee service of process on foreign governments. Immunity from jurisdiction does not mean immunity from service of process.

Secondly, holding pre-trial conferences in general also does not seem to have infringed jurisdictional immunity: this stage of the proceedings has not yet required the Court to decide whether or not to grant immunity from jurisdiction, but serves to prepare this decision (c.f. Rule 16 of the US Federal Rules of Procedure).

Thirdly, however, the FSIA categorises a plea of jurisdictional immunity as a defence, meaning that it places the burden to invoke and to prove it upon the defendant State (c.f. the Congressional Committee Report, reproduced here at 1407: ‘[t]he ultimate burden of proving immunity would rest with foreign state.’). This does not reflect international law. The forum State not only has an obligation to ‘give effect to State immunity (…) by refraining from exercising jurisdiction’, but also to ‘ensure that its Courts determine on their own initiative that the immunity of that other State (…) is respected’ (Art 6 UNCSI, reflecting customary international law, see, e.g., Jurisdictional Immunities, paras 56, 82).

On top of this, invoking immunity proved to be unexpectedly difficult. A first attempt failed as Judge Laura Swain terminated and removed from the docket Germany’s motion to dismiss. Perhaps surprisingly to non-US lawyers, the judge has her own individual practice rules. These required the Federal Republic, before filing its motion, to certify it had made informal good faith efforts to settle the dispute amicably with the plaintiffs. Thus, the procedural law in this case effectively obliged Germany to interact not only with the Court, but also with the plaintiffs directly.

Implications and limits of an immunity analysis

Should the US Courts dismiss Germany’s plea of jurisdictional immunity, it would be more difficult for the Federal Republic to seek redress on the international plane than in the Italian example. In particular, it may not be possible to bring a case to the ICJ on this occasion. Unlike in the Jurisdictional Immunities proceedings against Italy, where ICJ jurisdiction was based on the 1957 European Convention on the Peaceful Settlement of Disputes, there does not seem to be a basis for ICJ jurisdiction. In particular, there does not seem to be a similar treaty applicable here, nor a bilateral treaty containing a compromissory clause providing for ICJ jurisdiction, and the US withdrew its general declaration of acceptance of the Court’s jurisdiction under Art 36(2) of the ICJ Statute long ago.

However, even if the Court ultimately grants Germany’s claim to immunity, the peculiarities of US law on jurisdictional immunity will already, to some extent, have enabled the claimants to achieve more than international lawyers may originally have expected. Germany has been required to address their arguments both informally and in Court, where it had to appear to defend itself and to which it filed detailed submissions.

Should the Courtgive effect to Germany’s immunity from suit, this would be an issue ‘entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful’ (Jurisdictional Immunities, para 58). Yet, hundreds of pages of detailed evidence produced in the course of the proceedings forcefully set out facts too long denied or forgotten. And research submitted to the Court casts serious doubt on quick assumptions as to international law’s silence on Germany’s colonial acts in Namibia. These contributions should be taken seriously, not least by the German government, regardless of whether there is a foreign Court competent to adjudicate such a case.

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Koorosh Ameli says

August 14, 2018

You may wish to consider the limitation of the immunity waiver provision in Article XVIII(2) and ICJ compromissory clause in Article XXVII(2) of the US/Germany FCN Treaty of 29 Oct. 1954, Art. XXVII; 273 UNTS 3. Article XVIII(2) provides that "No enterprise of either Party, including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, industrial, shipping or other business activities within the territories of the other Party, claim or enjoy, either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject therein." According to the consistent position of the United States, this article is based on the agreement of the high contracting parties that otherwise each State and its agencies and instrumentalities enjoy sovereign immunity in the United States even if enter into commercial transactions so long as they do not engage in commercial business activities in the sense of engage in doing business in an ongoing manner. See, Digest of United States Practice in International Law 1979, pp 897-926, in the negotiating history of this provision with Portugal and the Netherlands; see also, Restatement of the Law, Third, Foreign relations Law of the United States (1987) §456 Comment C. Waiver by international agreement and Restatement Fourth, Tentative Draft 1, approved 2015, §453, Reporters' Note 2, Waiver by international agreement.

Alexander Wentker says

August 20, 2018

Many thanks for bringing up this treaty, which we did consider in preparing our piece, but which we did not deem to be applicable.

With respect to the dispute settlement provision in Art XXVII(2): for this clause to apply, there would need to be a dispute between the parties as to the interpretation or the application of the treaty (and that dispute must has not have been settled by diplomatic means). As we understand it, the 1954 Treaty of Friendship, Commerce and Navigation mainly provides for fair and equitable treatment to be granted to the other Parties’ nationals and companies (as well as their property, enterprises, other interests etc.). If Germany’s jurisdictional immunity is violated, this would only harm the State itself, rather than its nationals and companies directly. As to Art XVIII(2): this provision only seems to apply to business (etc.) activities ‘within the territory of the other Party’. None of the acts for which Germany claims immunity in the case at hand took or take place on US territory. Would the consistent position of the US, to which you refer, go beyond the scope of this provision and also cover conduct outside the US? Also, could a ‘consistent position’ to the effect that anything *not* addressed in the Art XVIII(2) give rise to a dispute over the ‘application of the treaty’ in the sense of the dispute settlement clause? That said, you may be right that these matters merit some further thought.

Koorosh Ameli says

August 23, 2018

Great. Thank you for the Reply. A court is obviously a judicial organ of the State and in deciding a case in violation of the State's treaty obligations it engages the State's responsibility vis-a-vis the other State party to the treaty. Art. 4(1), ILC Articles on State Responsibility; Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening), Judgment 3 Feb. 2012, para. 139, where Italy was held liable for the conduct of its courts by allowing civil claims brought against Germany in violation of the jurisdictional immunities of Germany. The limitation of the immunity waiver provision of Art. XVIII(2) of the FCN treaty and the implicit agreement of the State parties regarding it that otherwise state immunity applies not only to state agencies and instrumentalities but also to the State as evidenced by the negotiating history of the treaty and the US practice. It is not the discussion of "any thing not addressed" in a treaty, but violation of the scope of what it covers, supported by interpretation of the immunity waiver provision as an exception to an agreed principle coupled with the object and purpose, context and negotiating history of the provision and the practice of the party closely involved in the ratification, interpretation and application of the identical provision in its other similar treaties contemporaneously negotiated and ratified. This interpretation of Art. XVIII(2) is also supported by the principle of a contrario interpretation of treaties. See, Abdulqawi A. Yusuf and Daniel Peat, A Contrario Interpretation in the Jurisprudence of the International Court of Justice, 3 Can. J. Comp. & Contemp. L. 1 (2017). Further, conditions for the application of the exceptional immunity waiver for state agencies and instrumentalities should not be misplaced with the application of the absolute principle of immunity of the State, whether the conditions are territorial or commercial. In fact, such conditions only emphasize the absolute nature of the principle. The exception that proves the rule, for stronger reasons and clear negative meaning of the provision here. As the Military and Paramilitary Activities and the Oil Platforms cases show the FCN treaties also cover a wide range of non-commercial conducts. In this type of a case what matters is the conduct of the national court in a case before it in that country rather than where the underlying conduct has occurred. See, Jurisdictional Immunities of the State (Germany v. Italy), para. 139(3), supra, where Italy was held liable for its courts declaring enforceable judgments of Greek courts for events occurring in Greece in violation of Germany's State immunities. I do not think Germany or for that matter the ICJ would disagree if it is proved that the US has already accepted that Art. XVIII(2) recognizes, though implicitly, the immunities of the State parties without a limitation. Therefore, those more interested may wish to further examine the sources I cited in my first post together with these comments.