Claims brought under 28 U.S.C. § 1605(a)(3)—the international takings exception of the Foreign Sovereign Immunities Act—allege some type of expropriation. Although expropriations are generally considered to be sovereign activity, this statutory exception provides that a foreign state shall not be immune from the jurisdiction of state and federal courts in the United States when the foreign state has taken property rights in violation of international law and the property at issue has a commercial-activity nexus with the United States. Until recent years, domestic and foreign courts have generally interpreted expropriation claims according to state responsibility and the international law of expropriation, which stipulates that a taking in violation of international law means an uncompensated taking (takings without prompt, adequate and effective payment) or a taking that is discriminatory or arbitrary in nature. However, some federal courts have rendered an unreasonable interpretation of § 1605(a)(3) to include some variation of genocidal takings: takings that effectuate genocide or are integral to genocide, or takings that constitute genocide.

Based on the legislative history, international law practice, and American constitutional law, Congress did not intend to use § 1605(a)(3) to cover international human rights abuses and, particularly, takings in the context of genocide. Had Congress intended § 1605(a)(3) to encompass allegations of genocide, it could have easily chosen language to achieve such a purpose. Similarly, rulings by the Supreme Court concerning § 1605(a)(3) have emphasized the significance of standards under customary international law and provide scant support for a lower court’s reading of genocidal takings. More fundamentally, a reading of genocidal takings raises sensitive foreign policy issues that are principally entrusted to the political branches responsible for the conduct of international relations—not the judiciary. This Note argues that § 1605(a)(3) provides U.S. courts with jurisdiction only for a plaintiff’s claim based on the traditional prohibition, under international law, against a foreign state’s taking of property without compensation—not for human rights violations. Fairly read, the language of § 1605(a)(3) is clear, and an interpretation of genocidal takings exceeds the jurisdictional limits of the FSIA.

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