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(Slip Opinion) OCTOBER TERM, 2018
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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JAM ET AL. v. INTERNATIONAL FINANCE CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 17–1011. Argued October 31, 2018—Decided February 27, 2019
In 1945, Congress passed the International Organizations Immunities
Act (IOIA), which, among other things, grants international organizations
the “same immunity from suit ... as is enjoyed by foreign
governments.” 22 U. S. C. §288a(b). At that time, foreign governments
were entitled to virtually absolute immunity as a matter of international
grace and comity. In 1952, the State Department adopted
a more restrictive theory of foreign sovereign immunity, which
Congress subsequently codified in the Foreign Sovereign Immunities
Act (FSIA), 28 U. S. C. §1602. The FSIA gives foreign sovereign governments
presumptive immunity from suit, §1604, subject to several
statutory exceptions, including, as relevant here, an exception for actions
based on commercial activity with a sufficient nexus with the
United States, §1605(a)(2).
Respondent International Finance Corporation (IFC), an IOIA international
organization, entered into a loan agreement with Coastal
Gujarat Power Limited, a company based in India, to finance the construction
of a coal-fired power plant in Gujarat. Petitioners sued the
IFC, claiming that pollution from the plant harmed the surrounding
air, land, and water. The District Court, however, held that the IFC
was immune from suit because it enjoyed the virtually absolute immunity
that foreign governments enjoyed when the IOIA was enacted.
The D. C. Circuit affirmed in light of its decision in Atkinson v.
Inter-American Development Bank, 156 F. 3d 1335.
Held: The IOIA affords international organizations the same immunity
from suit that foreign governments enjoy today under the FSIA.
Pp. 6–15.
(a) The IOIA “same as” formulation is best understood as making
international organization immunity and foreign sovereign immunity
2 JAM v. INTERNATIONAL FINANCE CORP.
Syllabus
continuously equivalent. The IOIA is thus like other statutes that
use similar or identical language to place two groups on equal footing.
See, e.g., Civil Rights Act of 1866, 42 U. S. C. §§1981(a), 1982;
Federal Tort Claims Act, 28 U. S. C. §2674. Whatever the ultimate
purpose of international organization immunity may be, the immediate
purpose of the IOIA immunity provision is expressed in language
that Congress typically uses to make one thing continuously equivalent
to another. Pp. 6–9.
(b) That reading is confirmed by the “reference canon” of statutory
interpretation. When a statute refers to a general subject, the statute
adopts the law on that subject as it exists whenever a question
under the statute arises. In contrast, when a statute refers to another
statute by specific title, the referenced statute is adopted as it existed
when the referring statute was enacted, without any subsequent
amendments. Federal courts have often relied on the reference
canon to harmonize a statute with an external body of law that the
statute refers to generally. The IOIA’s reference to the immunity enjoyed
by foreign governments is to an external body of potentially
evolving law, not to a specific provision of another statute. Nor is it a
specific reference to a common law concept with a fixed meaning.
The phrase “immunity enjoyed by foreign governments” is not a term
of art with substantive content but rather a concept that can be given
scope and content only by reference to the rules governing foreign
sovereign immunity. Pp. 9–11.
(c) The D. C. Circuit relied upon Atkinson’s conclusion that the reference
canon’s probative force was outweighed by an IOIA provision
authorizing the President to alter the immunity of an international
organization. But the fact that the President has power to modify
otherwise applicable immunity rules is perfectly compatible with the
notion that those rules might themselves change over time in light of
developments in the law governing foreign sovereign immunity. The
Atkinson court also did not consider the opinion of the State Department,
whose views in this area ordinarily receive “special attention,”
Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling
Co., 581 U. S. ___, ___, and which took the position that immunity
rules of the IOIA and the FSIA were linked following the FSIA’s enactment.
Pp. 11–13.
(d) The IFC contends that interpreting the IOIA immunity provision
to grant only restrictive immunity would defeat the purpose of
granting immunity in the first place, by subjecting international organizations
to suit under the commercial activity exception of the
FSIA for most or all of their core activities. This would be particularly
true with respect to international development banks, which use
the tools of commerce to achieve their objectives. Those concerns are
Cite as: 586 U. S. ____ (2019)
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Syllabus
inflated. The IOIA provides only default rules. An international organization’s
charter can always specify a different level of immunity,
and many do. Nor is it clear that the lending activity of all development
banks qualifies as commercial activity within the meaning of
the FSIA. But even if it does qualify as commercial, that does not
mean the organization is automatically subject to suit, since other
FSIA requirements must also be met, see, e.g., 28 U. S. C. §§1603,
1605(a)(2). Pp. 13–15.
860 F. 3d 703, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, ALITO, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined.
BREYER, J., filed a dissenting opinion. KAVANAUGH, J., took no part in
the consideration or decision of the case.
Cite as: 586 U. S. ____ (2019)
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1011
_________________
BUDHA ISMAIL JAM, ET AL., PETITIONERS v.
INTERNATIONAL FINANCE CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The International Organizations Immunities Act of 1945
grants international organizations such as the World
Bank and the World Health Organization the “same immunity
from suit . . . as is enjoyed by foreign governments.”
22 U. S. C. §288a(b). At the time the IOIA was
enacted, foreign governments enjoyed virtually absolute
immunity from suit. Today that immunity is more limited.
Most significantly, foreign governments are not
immune from actions based upon certain kinds of commercial
activity in which they engage. This case requires us to
determine whether the IOIA grants international organizations
the virtually absolute immunity foreign governments
enjoyed when the IOIA was enacted, or the more
limited immunity they enjoy today.
Respondent International Finance Corporation is an
international organization headquartered in the United
States. The IFC finances private-sector development
projects in poor and developing countries around the
world. About 10 years ago, the IFC financed the construc-
2 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
tion of a power plant in Gujarat, India. Petitioners are
local farmers and fishermen and a small village. They
allege that the power plant has polluted the air, land, and
water in the surrounding area. Petitioners sued the IFC
for damages and injunctive relief in Federal District
Court, but the IFC claimed absolute immunity from suit.
Petitioners argued that the IFC was entitled under the
IOIA only to the limited or “restrictive” immunity that
foreign governments currently enjoy. We agree.
I
A
In the wake of World War II, the United States and
many of its allies joined together to establish a host of new
international organizations. Those organizations, which
included the United Nations, the International Monetary
Fund, and the World Bank, were designed to allow member
countries to collectively pursue goals such as stabilizing
the international economy, rebuilding war-torn nations,
and maintaining international peace and security.
Anticipating that those and other international organizations
would locate their headquarters in the United
States, Congress passed the International Organizations
Immunities Act of 1945, 59 Stat. 669. The Act grants
international organizations a set of privileges and immunities,
such as immunity from search and exemption from
property taxes. 22 U. S. C. §§288a(c), 288c.
The IOIA defines certain privileges and immunities by
reference to comparable privileges and immunities enjoyed
by foreign governments. For example, with respect to
customs duties and the treatment of official communications,
the Act grants international organizations the privileges
and immunities that are “accorded under similar
circumstances to foreign governments.” §288a(d). The
provision at issue in this case provides that international
organizations “shall enjoy the same immunity from suit
Cite as: 586 U. S. ____ (2019)
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Opinion of the Court
and every form of judicial process as is enjoyed by foreign
governments.” §288a(b).
The IOIA authorizes the President to withhold, withdraw,
condition, or limit the privileges and immunities it
grants in light of the functions performed by any given
international organization. §288. Those privileges and
immunities can also be expanded or restricted by a particular
organization’s founding charter.
B
When the IOIA was enacted in 1945, courts looked to
the views of the Department of State in deciding whether
a given foreign government should be granted immunity
from a particular suit. If the Department submitted a
recommendation on immunity, courts deferred to the
recommendation. If the Department did not make a recommendation,
courts decided for themselves whether to
grant immunity, although they did so by reference to State
Department policy. Samantar v. Yousuf, 560 U. S. 305,
311–312 (2010).
Until 1952, the State Department adhered to the classical
theory of foreign sovereign immunity. According to
that theory, foreign governments are entitled to “virtually
absolute” immunity as a matter of international grace and
comity. At the time the IOIA was enacted, therefore, the
Department ordinarily requested, and courts ordinarily
granted, immunity in suits against foreign governments.
Ibid.; Verlinden B. V. v. Central Bank of Nigeria, 461 U. S.
480, 486 (1983). 1
In 1952, however, the State Department announced that
it would adopt the newer “restrictive” theory of foreign
——————
1
The immunity was “virtually” absolute because it was subject to
occasional exceptions for specific situations. In Republic of Mexico v.
Hoffman, 324 U. S. 30 (1945), for example, the State Department
declined to recommend, and the Court did not grant, immunity from
suit with respect to a ship that Mexico owned but did not possess.
4 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
sovereign immunity. Under that theory, foreign governments
are entitled to immunity only with respect to their
sovereign acts, not with respect to commercial acts. The
State Department explained that it was adopting the
restrictive theory because the “widespread and increasing
practice on the part of governments of engaging in commercial
activities” made it “necessary” to “enable persons
doing business with them to have their rights determined
in the courts.” Letter from Jack B. Tate, Acting Legal
Adviser, Dept. of State, to Acting Attorney General Philip
B. Perlman (May 19, 1952), reprinted in 26 Dept. State
Bull. 984–985 (1952).
In 1976, Congress passed the Foreign Sovereign Immunities
Act. The FSIA codified the restrictive theory of foreign
sovereign immunity but transferred “primary responsibility
for immunity determinations from the Executive to
the Judicial Branch.” Republic of Austria v. Altmann, 541
U. S. 677, 691 (2004); see 28 U. S. C. §1602. Under the
FSIA, foreign governments are presumptively immune
from suit. §1604. But a foreign government may be subject
to suit under one of several statutory exceptions.
Most pertinent here, a foreign government may be subject
to suit in connection with its commercial activity that has
a sufficient nexus with the United States. §1605(a)(2).
C
The International Finance Corporation is an international
development bank headquartered in Washington,
D. C. The IFC is designated as an international organization
under the IOIA. Exec. Order No. 10680, 3 CFR 86
(1957); see 22 U. S. C. §§282, 288. One hundred eightyfour
countries, including the United States, are members
of the IFC.
The IFC is charged with furthering economic development
“by encouraging the growth of productive private
enterprise in member countries, particularly in the less
Cite as: 586 U. S. ____ (2019)
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Opinion of the Court
developed areas, thus supplementing the activities of ” the
World Bank. Articles of Agreement of the International
Finance Corporation, Art. I, Dec. 5, 1955, 7 U. S. T. 2193,
T. I. A. S. No. 3620. Whereas the World Bank primarily
provides loans and grants to developing countries for
public-sector projects, the IFC finances private-sector
development projects that cannot otherwise attract capital
on reasonable terms. See Art. I(i), ibid. In 2018, the IFC
provided some $23 billion in such financing.
The IFC expects its loan recipients to adhere to a set of
performance standards designed to “avoid, mitigate, and
manage risks and impacts” associated with development
projects. IFC Performance Standards on Environmental
and Social Sustainability, Jan. 1, 2012, p. 2, ¶1. Those
standards are usually more stringent than any established
by local law. The IFC includes the standards in its loan
agreements and enforces them through an internal review
process. Brief for Respondent 10.
In 2008, the IFC loaned $450 million to Coastal Gujarat
Power Limited, a company located in India. The loan
helped finance the construction of a coal-fired power plant
in the state of Gujarat. Under the terms of the loan
agreement, Coastal Gujarat was required to comply with
an environmental and social action plan designed to protect
areas around the plant from damage. The agreement
allowed the IFC to revoke financial support for the project
if Coastal Gujarat failed to abide by the terms of the
agreement.
The project did not go smoothly. According to the IFC’s
internal audit, Coastal Gujarat did not comply with the
environmental and social action plan in constructing and
operating the plant. The audit report criticized the IFC
for inadequately supervising the project.
In 2015, a group of farmers and fishermen who live near
the plant, as well as a local village, sued the IFC in the
United States District Court for the District of Columbia.
6 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
They claimed that pollution from the plant, such as coal
dust, ash, and water from the plant’s cooling system, had
destroyed or contaminated much of the surrounding air,
land, and water. Relying on the audit report, they asserted
several causes of action against the IFC, including negligence,
nuisance, trespass, and breach of contract. The
IFC maintained that it was immune from suit under the
IOIA and moved to dismiss for lack of subject matter
jurisdiction.
The District Court, applying D. C. Circuit precedent,
concluded that the IFC was immune from suit because the
IOIA grants international organizations the virtually
absolute immunity that foreign governments enjoyed
when the IOIA was enacted. 172 F. Supp. 3d 104, 108–
109 (DC 2016) (citing Atkinson v. Inter-American Development
Bank, 156 F. 3d 1335 (CADC 1998)). The D. C.
Circuit affirmed in light of its precedent. 860 F. 3d 703
(2017). Judge Pillard wrote separately to say that she
would have decided the question differently were she
writing on a clean slate. Id., at 708 (concurring opinion).
Judge Pillard explained that she thought the D. C. Circuit
“took a wrong turn” when it “read the IOIA to grant international
organizations a static, absolute immunity that is,
by now, not at all the same ‘as is enjoyed by foreign governments,’
but substantially broader.” Ibid. Judge Pillard
also noted that the Third Circuit had expressly declined to
follow the D. C. Circuit’s approach. See OSS Nokalva, Inc.
v. European Space Agency, 617 F. 3d 756 (CA3 2010).
We granted certiorari. 584 U. S. ___ (2018).
II
The IFC contends that the IOIA grants international
organizations the “same immunity” from suit that foreign
governments enjoyed in 1945. Petitioners argue that it
instead grants international organizations the “same
immunity” from suit that foreign governments enjoy to-
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Opinion of the Court
day. We think petitioners have the better reading of the
statute.
A
The language of the IOIA more naturally lends itself to
petitioners’ reading. In granting international organizations
the “same immunity” from suit “as is enjoyed by
foreign governments,” the Act seems to continuously link
the immunity of international organizations to that of
foreign governments, so as to ensure ongoing parity between
the two. The statute could otherwise have simply
stated that international organizations “shall enjoy absolute
immunity from suit,” or specified some other fixed
level of immunity. Other provisions of the IOIA, such as
the one making the property and assets of international
organizations “immune from search,” use such noncomparative
language to define immunities in a static way. 22
U. S. C. §288a(c). Or the statute could have specified that
it was incorporating the law of foreign sovereign immunity
as it existed on a particular date. See, e.g., Energy Policy
Act of 1992, 30 U. S. C. §242(c)(1) (certain land patents
“shall provide for surface use to the same extent as is
provided under applicable law prior to October 24, 1992”).
Because the IOIA does neither of those things, we think
the “same as” formulation is best understood to make
international organization immunity and foreign sovereign
immunity continuously equivalent.
That reading finds support in other statutes that use
similar or identical language to place two groups on equal
footing. In the Civil Rights Act of 1866, for instance,
Congress established a rule of equal treatment for newly
freed slaves by giving them the “same right” to make and
enforce contracts and to buy and sell property “as is enjoyed
by white citizens.” 42 U. S. C. §§1981(a), 1982. That
provision is of course understood to guarantee continuous
equality between white and nonwhite citizens with respect
8 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
to the rights in question. See Jones v. Alfred H. Mayer
Co., 392 U. S. 409, 427–430 (1968). Similarly, the Federal
Tort Claims Act states that the “United States shall be
liable” in tort “in the same manner and to the same extent
as a private individual under like circumstances.” 28
U. S. C. §2674. That provision is most naturally understood
to make the United States liable in the same way as
a private individual at any given time. See Richards v.
United States, 369 U. S. 1, 6–7 (1962). Such “same as”
provisions dot the statute books, and federal and state
courts commonly read them to mandate ongoing equal
treatment of two groups or objects. See, e.g., Adamson v.
Bowen, 855 F. 2d 668, 671–672 (CA10 1988) (statute making
United States liable for fees and expenses “to the same
extent that any other party would be liable under the
common law or under the terms of any statute” interpreted
to continuously tie liability of United States to that of
any other party); Kugler’s Appeal, 55 Pa. 123, 124–125
(1867) (statute making the procedure for dividing election
districts “the same as” the procedure for dividing townships
interpreted to continuously tie the former procedure
to the latter).
The IFC objects that the IOIA is different because the
purpose of international organization immunity is entirely
distinct from the purpose of foreign sovereign immunity.
Foreign sovereign immunity, the IFC argues, is grounded
in the mutual respect of sovereigns and serves the ends of
international comity and reciprocity. The purpose of
international organization immunity, on the other hand, is
to allow such organizations to freely pursue the collective
goals of member countries without undue interference
from the courts of any one member country. The IFC
therefore urges that the IOIA should not be read to tether
international organization immunity to changing foreign
sovereign immunity.
But that gets the inquiry backward. We ordinarily
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Opinion of the Court
assume, “absent a clearly expressed legislative intention
to the contrary,” that “the legislative purpose is expressed
by the ordinary meaning of the words used.” American
Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982) (alterations
omitted). Whatever the ultimate purpose of international
organization immunity may be—the IOIA does not
address that question—the immediate purpose of the
immunity provision is expressed in language that Congress
typically uses to make one thing continuously equivalent
to another.
B
The more natural reading of the IOIA is confirmed by a
canon of statutory interpretation that was well established
when the IOIA was drafted. According to the “reference”
canon, when a statute refers to a general subject, the
statute adopts the law on that subject as it exists whenever
a question under the statute arises. 2 J. Sutherland,
Statutory Construction §§5207–5208 (3d ed. 1943). For
example, a statute allowing a company to “collect the same
tolls and enjoy the same privileges” as other companies
incorporates the law governing tolls and privileges as it
exists at any given moment. Snell v. Chicago, 133 Ill. 413,
437–439, 24 N. E. 532, 537 (1890). In contrast, a statute
that refers to another statute by specific title or section
number in effect cuts and pastes the referenced statute as
it existed when the referring statute was enacted, without
any subsequent amendments. See, e.g., Culver v. People
ex rel. Kochersperger, 161 Ill. 89, 95–99, 43 N. E. 812, 814–
815 (1896) (tax-assessment statute referring to specific
article of another statute does not adopt subsequent
amendments to that article).
Federal courts have often relied on the reference canon,
explicitly or implicitly, to harmonize a statute with an
external body of law that the statute refers to generally.
Thus, for instance, a statute that exempts from disclosure
10 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
agency documents that “would not be available by law to a
party . . . in litigation with the agency” incorporates the
general law governing attorney work-product privilege as
it exists when the statute is applied. FTC v. Grolier Inc.,
462 U. S. 19, 20, 26–27 (1983) (emphasis added); id., at 34,
n. 6 (Brennan, J., concurring in part and concurring in
judgment). Likewise, a general reference to federal discovery
rules incorporates those rules “as they are found on
any given day, today included,” El Encanto, Inc. v. Hatch
Chile Co., 825 F. 3d 1161, 1164 (CA10 2016), and a general
reference to “the crime of piracy as defined by the law
of nations” incorporates a definition of piracy “that changes
with advancements in the law of nations,” United States
v. Dire, 680 F. 3d 446, 451, 467–469 (CA4 2012).
The same logic applies here. The IOIA’s reference to the
immunity enjoyed by foreign governments is a general
rather than specific reference. The reference is to an
external body of potentially evolving law—the law of
foreign sovereign immunity—not to a specific provision of
another statute. The IOIA should therefore be understood
to link the law of international organization immunity to
the law of foreign sovereign immunity, so that the one
develops in tandem with the other.
The IFC contends that the IOIA’s reference to the immunity
enjoyed by foreign governments is not a general
reference to an external body of law, but is instead a specific
reference to a common law concept that had a fixed
meaning when the IOIA was enacted in 1945. And because
we ordinarily presume that “Congress intends to
incorporate the well-settled meaning of the common-law
terms it uses,” Neder v. United States, 527 U. S. 1, 23
(1999), the IFC argues that we should read the IOIA to
incorporate what the IFC maintains was the then-settled
meaning of the “immunity enjoyed by foreign governments”:
virtually absolute immunity.
But in 1945, the “immunity enjoyed by foreign govern-
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Opinion of the Court
ments” did not mean “virtually absolute immunity.” The
phrase is not a term of art with substantive content, such
as “fraud” or “forgery.” See id., at 22; Gilbert v. United
States, 370 U. S. 650, 655 (1962). It is rather a concept
that can be given scope and content only by reference to
the rules governing foreign sovereign immunity. It is true
that under the rules applicable in 1945, the extent of immunity
from suit was virtually absolute, while under the
rules applicable today, it is more limited. But in 1945, as
today, the IOIA’s instruction to grant international organizations
the immunity “enjoyed by foreign governments” is
an instruction to look up the applicable rules of foreign
sovereign immunity, wherever those rules may be found—
the common law, the law of nations, or a statute. In other
words, it is a general reference to an external body of
(potentially evolving) law.
C
In ruling for the IFC, the D. C. Circuit relied upon its
prior decision in Atkinson, 156 F. 3d 1335. Atkinson
acknowledged the reference canon, but concluded that the
canon’s probative force was “outweighed” by a structural
inference the court derived from the larger context of the
IOIA. Id., at 1341. The Atkinson court focused on the
provision of the IOIA that gives the President the authority
to withhold, withdraw, condition, or limit the otherwise
applicable privileges and immunities of an international
organization, “in the light of the functions performed by
any such international organization.” 22 U. S. C. §288.
The court understood that provision to “delegate to the
President the responsibility for updating the immunities
of international organizations in the face of changing
circumstances.” Atkinson, 156 F. 3d, at 1341. That delegation,
the court reasoned, “undermine[d]” the view that
Congress intended the IOIA to in effect update itself by
incorporating changes in the law governing foreign sover-
12 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
eign immunity. Ibid.
We do not agree. The delegation provision is most
naturally read to allow the President to modify, on a
case-by-case basis, the immunity rules that would otherwise
apply to a particular international organization. The
statute authorizes the President to take action with respect
to a single organization—“any such organization”—
in light of the functions performed by “such organization.”
28 U. S. C. §288. The text suggests retail rather than
wholesale action, and that is in fact how authority under
§288 has been exercised in the past. See, e.g., Exec. Order
No. 12425, 3 CFR 193 (1984) (designating INTERPOL as
an international organization under the IOIA but withholding
certain privileges and immunities); Exec. Order
No. 11718, 3 CFR 177 (1974) (same for INTELSAT). In
any event, the fact that the President has power to modify
otherwise applicable immunity rules is perfectly compatible
with the notion that those rules might themselves
change over time in light of developments in the law governing
foreign sovereign immunity.
The D. C. Circuit in Atkinson also gave no consideration
to the opinion of the State Department, whose views in
this area ordinarily receive “special attention.” Bolivarian
Republic of Venezuela v. Helmerich & Payne Int’l. Drilling
Co., 581 U. S. ___, ___ (2017) (slip op., at 9). Shortly after
the FSIA was enacted, the State Department took the
position that the immunity rules of the IOIA and the FSIA
were now “link[ed].” Letter from Detlev F. Vagts, Office of
the Legal Adviser, to Robert M. Carswell, Jr., Senior Legal
Advisor, OAS, p. 2 (Mar. 24, 1977). The Department
reaffirmed that view during subsequent administrations,
and it has reaffirmed it again here. 2 That longstanding
——————
2
See Letter from Roberts B. Owen, Legal Adviser, to Leroy D. Clark,
Gen. Counsel, EEOC (June 24, 1980) in Nash, Contemporary Practice
of the United States Relating to International Law, 74 Am. J. Int’l. L. 917,
Cite as: 586 U. S. ____ (2019)
13
Opinion of the Court
view further bolsters our understanding of the IOIA’s
immunity provision.
D
The IFC argues that interpreting the IOIA’s immunity
provision to grant anything less than absolute immunity
would lead to a number of undesirable results.
The IFC first contends that affording international
organizations only restrictive immunity would defeat the
purpose of granting them immunity in the first place.
Allowing international organizations to be sued in one
member country’s courts would in effect allow that member
to second-guess the collective decisions of the others.
It would also expose international organizations to money
damages, which would in turn make it more difficult and
expensive for them to fulfill their missions. The IFC
argues that this problem is especially acute for international
development banks. Because those banks use the
tools of commerce to achieve their objectives, they may be
subject to suit under the FSIA’s commercial activity exception
for most or all of their core activities, unlike foreign
sovereigns. According to the IFC, allowing such suits
would bring a flood of foreign-plaintiff litigation into U. S.
courts, raising many of the same foreign-relations con-
——————
918 (1980) (“By virtue of the FSIA, and unless otherwise specified in
their constitutive agreements, international organizations are now
subject to the jurisdiction of our courts in respect of their commercial
activities, while retaining immunity for their acts of a public character.”);
Letter from Arnold Kanter, Acting Secretary of State, to President
George H. W. Bush (Sept. 12, 1992) in Digest of United States
Practice in International Law 1016–1017 (S. Cummins & D. Stewart
eds. 2005) (explaining that the Headquarters Agreement of the Organization
of American States affords the OAS “full immunity from judicial
process, thus going beyond the usual United States practice of affording
restrictive immunity,” in exchange for assurances that OAS would
provide for “appropriate modes of settlement of those disputes for which
jurisdiction would exist against a foreign government under the” FSIA);
Brief for United States as Amicus Curiae 24–29.
14 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
cerns that we identified when considering similar litigation
under the Alien Tort Statute. See Jesner v. Arab
Bank, PLC, 584 U. S. ___, ___–___ (2018); Kiobel v. Royal
Dutch Petroleum Co., 569 U. S. 108, 116–117 (2013).
The IFC’s concerns are inflated. To begin, the privileges
and immunities accorded by the IOIA are only default
rules. If the work of a given international organization
would be impaired by restrictive immunity, the organization’s
charter can always specify a different level of immunity.
The charters of many international organizations
do just that. See, e.g., Convention on Privileges and Immunities
of the United Nations, Art. II, §2, Feb. 13, 1946,
21 U. S. T. 1422, T. I. A. S. No. 6900 (“The United Nations
. . . shall enjoy immunity from every form of legal process
except insofar as in any particular case it has expressly
waived its immunity”); Articles of Agreement of the International
Monetary Fund, Art. IX, §3, Dec. 27, 1945, 60
Stat. 1413, T. I. A. S. No. 1501 (IMF enjoys “immunity
from every form of judicial process except to the extent
that it expressly waives its immunity”). Notably, the
IFC’s own charter does not state that the IFC is absolutely
immune from suit.
Nor is there good reason to think that restrictive immunity
would expose international development banks to
excessive liability. As an initial matter, it is not clear that
the lending activity of all development banks qualifies as
commercial activity within the meaning of the FSIA. To
be considered “commercial,” an activity must be “the type”
of activity “by which a private party engages in” trade or
commerce. Republic of Argentina v. Weltover, Inc., 504
U. S. 607, 614 (1992); see 28 U. S. C. §1603(d). As the
Government suggested at oral argument, the lending
activity of at least some development banks, such as those
that make conditional loans to governments, may not
qualify as “commercial” under the FSIA. See Tr. of Oral
Arg. 27–30.
Cite as: 586 U. S. ____ (2019)
15
Opinion of the Court
And even if an international development bank’s lending
activity does qualify as commercial, that does not
mean the organization is automatically subject to suit.
The FSIA includes other requirements that must also be
met. For one thing, the commercial activity must have a
sufficient nexus to the United States. See 28 U. S. C.
§§1603, 1605(a)(2). For another, a lawsuit must be “based
upon” either the commercial activity itself or acts performed
in connection with the commercial activity. See
§1605(a)(2). Thus, if the “gravamen” of a lawsuit is tortious
activity abroad, the suit is not “based upon” commercial
activity within the meaning of the FSIA’s commercial
activity exception. See OBB Personenverkehr AG v. Sachs,
577 U. S. ___, ___–___ (2015); Saudi Arabia v. Nelson, 507
U. S. 349, 356–359 (1993). At oral argument in this case,
the Government stated that it has “serious doubts” whether
petitioners’ suit, which largely concerns allegedly tortious
conduct in India, would satisfy the “based upon” requirement.
Tr. of Oral Arg. 25–26. In short, restrictive immunity
hardly means unlimited exposure to suit for international
organizations.
* * *
The International Organizations Immunities Act grants
international organizations the “same immunity” from
suit “as is enjoyed by foreign governments” at any given
time. Today, that means that the Foreign Sovereign
Immunities Act governs the immunity of international
organizations. The International Finance Corporation is
therefore not absolutely immune from suit.
The judgment of the United States Court of Appeals for
the D. C. Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
16 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
JUSTICE KAVANAUGH took no part in the consideration or
decision of this case.
Cite as: 586 U. S. ____ (2019)
1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1011
_________________
BUDHA ISMAIL JAM, ET AL., PETITIONERS v.
INTERNATIONAL FINANCE CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2019]
JUSTICE BREYER, dissenting.
The International Organizations Immunities Act of 1945
extends to international organizations “the same immunity
from suit and every form of judicial process as is enjoyed
by foreign governments.” 22 U. S. C. §288a(b). The
majority, resting primarily upon the statute’s language
and canons of interpretation, holds that the statute’s
reference to “immunity” moves with the times. As a consequence,
the statute no longer allows international organizations
immunity from lawsuits arising from their
commercial activities. In my view, the statute grants
international organizations that immunity—just as foreign
governments possessed that immunity when Congress
enacted the statute in 1945. In reaching this conclusion,
I rest more heavily than does the majority upon the
statute’s history, its context, its purposes, and its consequences.
And I write in part to show that, in difficult
cases like this one, purpose-based methods of interpretation
can often shine a useful light upon opaque statutory
language, leading to a result that reflects greater legal
coherence and is, as a practical matter, more sound.
I
The general question before us is familiar: Do the words
of a statute refer to their subject matter “statically,” as it
2 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
was when the statute was written? Or is their reference
to that subject matter “dynamic,” changing in scope as the
subject matter changes over time? It is hardly surprising,
given the thousands of different statutes containing an
untold number of different words, that there is no single,
universally applicable answer to this question.
Fairly recent cases from this Court make that clear.
Compare New Prime Inc. v. Oliveira, 586 U. S. ___, ___
(2019) (slip op., at 7) (adopting the interpretation of “‘contracts
of employment’ ” that prevailed at the time of the
statute’s adoption in 1925); Wisconsin Central Ltd. v.
United States, 585 U. S. ___, ___ (2018) (slip op., at 2)
(adopting the meaning of “‘money’” that prevailed at the
time of the statute’s enactment in 1937); Carcieri v. Salazar,
555 U. S. 379, 388 (2009) (interpreting the statutory
phrase “‘now under Federal jurisdiction’” to cover only
those tribes that were under federal jurisdiction at the
time of the statute’s adoption in 1934); and Republic of
Argentina v. Weltover, Inc., 504 U. S. 607, 612–613 (1992)
(adopting the meaning of “ ‘commercial’” that was “attached
to that term under the restrictive theory” when the
Foreign Sovereign Immunities Act was enacted in 1976),
with Kimble v. Marvel Entertainment, LLC, 576 U. S. ___,
___ (2015) (slip op., at 14) (noting that the words “‘restraint
of trade’” in the Sherman Act have been interpreted
dynamically); West v. Gibson, 527 U. S. 212, 218 (1999)
(interpreting the term “‘appropriate’” in Title VII’s remedies
provision dynamically); and Allied-Bruce Terminix
Cos. v. Dobson, 513 U. S. 265, 275–276 (1995) (interpreting
the term “‘involving commerce’” in the Federal Arbitration
Act dynamically).
The Court, like petitioners, believes that the language of
the statute itself helps significantly to answer the static/dynamic
question. See ante, at 7–9. I doubt that the
language itself helps in this case. Petitioners point to the
words “as is” in the phrase that grants the international
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3
BREYER, J., dissenting
organizations the “same immunity from suit . . . as is
enjoyed by foreign governments.” Brief for Petitioners 23–
24. They invoke the Dictionary Act, which states that
“words used in the present tense include the future” “unless
the context indicates otherwise.” 1 U. S. C. §1. But
that provision creates only a presumption. And it did not
even appear in the statute until 1948, after Congress had
passed the Immunities Act. Compare §1, 61 Stat. 633,
with §6, 62 Stat. 859.
More fundamentally, the words “as is enjoyed” do not
conclusively tell us when enjoyed. Do they mean “as is
enjoyed” at the time of the statute’s enactment? Or “as is
enjoyed” at the time a plaintiff brings a lawsuit? If the
former, international organizations enjoy immunity from
lawsuits based upon their commercial activities, for that
was the scope of immunity that foreign governments
enjoyed in 1945 when the Immunities Act became law. If
the latter, international organizations do not enjoy that
immunity, for foreign governments can no longer claim
immunity from lawsuits based upon certain commercial
activities. See 28 U. S. C. §1605(a)(2).
Linguistics does not answer the temporal question. Nor
do our cases, which are not perfectly consistent on the
matter. Compare McNeill v. United States, 563 U. S. 816,
821 (2011) (present-tense verb in the Armed Career Criminal
Act requires applying the law at the time of previous
conviction, not the later time when the Act is applied),
with Dole Food Co. v. Patrickson, 538 U. S. 468, 478 (2003)
(present-tense verb requires applying the law “at the time
suit is filed”). The problem is simple: “Without knowing
the point in time at which the law speaks, it is impossible
to tell what is past and what is present or future.” Carr v.
United States, 560 U. S. 438, 463 (2010) (ALITO, J., dissenting).
It is purpose, not linguistics, that can help us
here.
The words “same . . . as,” in the phrase “same immunity
4 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
. . . as,” provide no greater help. The majority finds support
for its dynamic interpretation in the Civil Rights Act
of 1866, which gives all citizens the “same right” to make
and enforce contracts and to buy and sell property “as is
enjoyed by white citizens.” 42 U. S. C. §§1981(a), 1982
(emphasis added). But it is purpose, not words, that readily
resolves any temporal linguistic ambiguity in that
statute. The Act’s objective, like that of the Fourteenth
Amendment itself, was a Nation that treated its citizens
equally. Its purpose—revealed by its title, historical
context, and other language in the statute—was “to guarantee
the then newly freed slaves the same legal rights
that other citizens enjoy.” CBOCS West, Inc. v. Humphries,
553 U. S. 442, 448 (2008). Given this purpose, its
dynamic nature is obvious.
Similarly, judges interpreting the words “same . . . as”
have long resolved ambiguity not by looking at the words
alone, but by examining the statute’s purpose as well.
Compare, e.g., Kugler’s Appeal, 55 Pa. 123, 123–125 (1867)
(adopting a dynamic interpretation of “same as” statute in
light of “plain” and “manifest” statutory purpose); and
Gaston v. Lamkin, 115 Mo. 20, 34, 21 S. W. 1100, 1104
(1893) (adopting a dynamic interpretation of “same as”
election statute given the legislature’s intent to achieve
“simplicity and uniformity in the conduct of elections”),
with O’Flynn v. East Rochester, 292 N. Y. 156, 162, 54
N. E. 2d 343, 346 (1944) (adopting a static interpretation
of “same as” statute given that the legislature “did not
contemplate” that subsequent changes to a referenced
statute would apply (interpreting N. Y. Gen. Mun. Law
Ann. §360(5) (West 1934))). There is no hard-and-fast rule
that the statutory words “as is” or the statutory words
“same as” require applying the law as it stands today.
The majority wrongly believes that it can solve the
temporal problem by bringing statutory canons into play.
It relies on what it calls the “reference canon.” That canon,
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5
BREYER, J., dissenting
as it appeared more than 75 years ago in Sutherland’s
book on statutory construction, says that “when a statute
refers to a general subject, the statute adopts the law on
that subject as it exists whenever a question under the
statute arises.” Ante, at 9 (citing 2 J. Sutherland, Statutory
Construction §§5207–5208 (3d ed. 1943); emphasis
added).
But a canon is at most a rule of thumb. Indeed, Sutherland
himself says that “[n]o single canon of interpretation
can purport to give a certain and unerring answer.” 2
Sutherland, supra, §4501, p. 316. And hornbooks, summarizing
case law, have long explained that whether a
reference statute adopts the law as it stands on the date of
enactment or includes subsequent changes in the law to
which it refers is “fundamentally a question of legislative
intent and purpose.” Fox, Effect of Modification or Repeal
of Constitutional or Statutory Provision Adopted by Reference
in Another Provision, 168 A. L. R. 627, 628 (1947);
see also 82 C. J. S., Statutes §485, p. 637 (2009) (“The
question of whether a statute which has adopted another
statute by reference will be affected by amendments made
to the adopted statute is one of legislative intent and
purpose”); id., at 638 (statute that refers generally to
another body of law will ordinarily include subsequent
changes in the adopted law only “as far as the changes are
consistent with the purpose of the adopting statute”).
Thus, all interpretive roads here lead us to the same
place, namely, to context, to history, to purpose, and to
consequences. Language alone cannot resolve the statute’s
linguistic ambiguity.
II
“Statutory interpretation,” however, “is not a game of
blind man’s bluff.” Dole Food Co., 538 U. S., at 484
(BREYER, J., concurring in part and dissenting in part).
We are “free to consider statutory language in light of a
6 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
statute’s basic purposes,” ibid., as well as “‘the history of
the times when it was passed,’” Leo Sheep Co. v. United
States, 440 U. S. 668, 669 (1979) (quoting United States v.
Union Pacific R. Co., 91 U. S. 72, 79 (1875)). In this case,
historical context, purpose, and related consequences tell
us a great deal about the proper interpretation of the
Immunities Act.
Congressional reports explain that Congress, acting in
the immediate aftermath of World War II, intended the
Immunities Act to serve two related purposes. First, it
would “enabl[e] this country to fulfill its commitments in
connection with its membership in international organizations.”
S. Rep. No. 861, 79th Cong., 1st Sess., 3 (1945); see
also id., at 2–3 (explaining that the Immunities Act was
“basic legislation” expected to “satisfy in full the requirements
of . . . international organizations conducting activities
in the United States”); H. R. Rep. No. 1203, 79th
Cong., 1st Sess., 3 (1945) (similar). And second, it would
“facilitate fully the functioning of international organizations
in this country.” S. Rep. No. 861, at 3.
A
I first examine the international commitments that
Congress sought to fulfill. By 1945, the United States had
entered into agreements creating several important multilateral
organizations, including the United Nations (UN),
the International Monetary Fund (IMF), the World Bank,
the UN Relief and Rehabilitation Administration
(UNRRA), and the Food and Agriculture Organization
(FAO). See id., at 2.
The founding agreements for several of these organizations
required member states to grant them broad immunity
from suit. The Bretton Woods Agreements, for example,
provided that the IMF “shall enjoy immunity from
every form of judicial process except to the extent that it
expressly waives its immunity.” Articles of Agreement of
Cite as: 586 U. S. ____ (2019)
7
BREYER, J., dissenting
the International Monetary Fund, Art. IX, §3, Dec. 27,
1945, 60 Stat. 1413, T. I. A. S. No. 1501. UNRRA required
members, absent waiver, to accord the organization “the
facilities, privileges, immunities, and exemptions which
they accord to each other, including . . . [i]mmunity from
suit and legal process.” 2 UNRRA, A Compilation of the
Resolutions on Policy: First and Second Sessions of the
UNRRA Council, Res. No. 32, p. 51 (1944). And the UN
Charter required member states to accord the UN “such
privileges and immunities as are necessary for the fulfillment
of its purposes.” Charter of the United Nations, Art.
105, 59 Stat. 1053, June 26, 1945, T. S. No. 993.
These international organizations expected the United
States to provide them with essentially full immunity.
And at the time the treaties were written, Congress understood
that foreign governments normally enjoyed immunity
with respect to their commercial, as well as their
noncommercial, activities. Thus, by granting international
organizations “the same immunity from suit” that
foreign governments enjoyed, Congress expected that
international organizations would similarly have immunity
in both commercial and noncommercial suits.
More than that, Congress likely recognized that immunity
in the commercial area was even more important for
many international organizations than it was for most
foreign governments. Unlike foreign governments, international
organizations are not sovereign entities engaged
in a host of different activities. See R. Higgins, Problems
& Process: International Law and How We Use It 93
(1994) (organizations do not act with “ ‘sovereign authority,’”
and “to assimilate them to states . . . is not correct”).
Rather, many organizations (including four of the five I
mentioned above) have specific missions that often require
them to engage in what U. S. law may well consider to be
commercial activities. See infra, at 12.
Nonetheless, under the majority’s view, the immunity of
8 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
many organizations contracted in scope in 1952, when the
State Department modified foreign government immunity
to exclude commercial activities. Most organizations could
not rely on the treaty provisions quoted above to supply
the necessary immunity. That is because, unless the
treaty provision granting immunity is “self-executing,” i.e.,
automatically applicable, the immunity will not be effective
in U. S. courts until Congress enacts additional legislation
to implement it. See Medellin v. Texas, 552 U. S.
491, 504–505 (2008); but see id., at 546–547 (BREYER, J.,
dissenting). And many treaties are not self-executing.
Thus, in the ordinary case, not even a treaty can guarantee
immunity in cases arising from commercial activities.
The UN provides a good example. As noted, the UN
Charter required the United States to grant the UN all
“necessary” immunities, but it was not self-executing. In
1946, the UN made clear that it needed absolute immunity
from suit, including in lawsuits based upon its commercial
activities. See Convention on Privileges and Immunities
of the United Nations, Art. II, §2, Feb. 13, 1946, 21
U. S. T. 1422, T. I. A. S. No. 6900 (entered into force Apr.
29, 1970); see also App. to S. Exec. Rep. No. 91–17, p. 14
(1970) (“The U. N.’s immunity from legal process extends
to matters arising out its commercial dealings . . . ”). But,
until Congress ratified that comprehensive immunity
provision in 1970, no U. S. law provided that immunity
but for the Immunities Act. Id., at 1. Both the UN and
the United States found this circumstance satisfactory
because they apparently assumed the Immunities Act
extended immunity in cases involving both commercial
and noncommercial activities: When Congress eventually
(in 1970) ratified the UN’s comprehensive immunity provision,
the Senate reported that the long delay in ratification
“appears to have been the result of the executive
branch being content to operate under the provisions of
the” Immunities Act. Id., at 2.
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9
BREYER, J., dissenting
In light of this history, how likely is it that Congress,
seeking to “satisfy in full the requirements of . . . international
organizations conducting activities in the United
States,” S. Rep. No. 861, at 2–3 (emphasis added), would
have understood the statute to take from many international
organizations with one hand the immunity it had
given them with the other? If Congress wished the Act to
carry out one of its core purposes—fulfilling the country’s
international commitments—Congress would not have
wanted the statute to change over time, taking on a meaning
that would fail to grant not only full, but even partial,
immunity to many of those organizations.
B
Congress also intended to facilitate international organizations’
ability to pursue their missions in the United
States. To illustrate why that purpose is better served by
a static interpretation, consider in greater detail the work
of the organizations to which Congress wished to provide
broad immunity. Put the IMF to the side, for Congress
enacted a separate statute providing it with immunity
(absent waiver) in all cases. See 22 U. S. C. §286h. But
UNRRA, the World Bank, the FAO, and the UN itself all
originally depended upon the Immunities Act for the
immunity they sought.
Consider, for example, the mission of UNRRA. The
United States and other nations created that organization
in 1943, as the end of World War II seemed in sight. Its
objective was, in the words of President Roosevelt, to
“ ‘assure a fair distribution of available supplies among’”
those liberated in World War II, and “‘to ward off death by
starvation or exposure among these peoples.’” 1 G. Woodbridge,
UNRRA: The History of the United Nations Relief
and Rehabilitation Administration 3 (1950). By the time
Congress passed the Immunities Act in 1945, UNRRA had
obtained and shipped billions of pounds of food, clothing,
10 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
and other relief supplies to children freed from Nazi concentration
camps and to others in serious need. 3 id., at
429; see generally L. Nicholas, Cruel World: The Children
of Europe in the Nazi Web 442–513 (2005).
These activities involved contracts, often made in the
United States, for transportation and for numerous commercial
goods. See B. Shephard, The Long Road Home:
The Aftermath of the Second World War 54, 57–58 (2012).
Indeed, the United States conditioned its participation on
UNRRA’s spending what amounted to 67% of its budget on
purchases of goods and services in the United States. Id.,
at 57–58; see also Sawyer, Achievements of UNRRA as an
International Health Organization, 37 Am. J. Pub. Health
41, 57 (1947) (describing UNRRA training programs for
foreign doctors within the United States, which presumably
required entering into contracts); International Refugee
Org. v. Republic S. S. Corp., 189 F. 2d 858, 860 (CA4
1951) (describing successor organization’s transportation
of displaced persons, presumably also under contract).
Would Congress, believing that it had provided the absolute
immunity that UNRRA sought and expected, also
have intended that the statute be interpreted “dynamically,”
thereby removing most of the immunity that it had
then provided—not only potentially from UNRRA itself
but also from other future international organizations
with UNRRA-like objectives and tasks?
C
This history makes clear that Congress enacted the
Immunities Act as part of an effort to encourage international
organizations to locate their headquarters and carry
on their missions in the United States. It also makes clear
that Congress intended to enact “basic legislation” that
would fulfill its broad immunity-based commitments to
the UN, UNRRA, and other nascent organizations.
S. Rep. No. 861, at 2. And those commitments, of neces-
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11
BREYER, J., dissenting
sity, included immunity from suit in commercial areas, since
organizations were buying goods and making contracts in
the United States.
To achieve these purposes, Congress enacted legislation
that granted necessarily broad immunity. And that fact
strongly suggests that Congress would not have wanted
the statute to reduce significantly the scope of immunity
that international organizations enjoyed, particularly
organizations engaged in development finance, refugee
assistance, or other tasks that U. S. law could well decide
were “commercial” in nature. See infra, at 12.
To that extent, an examination of the statute’s purpose
supports a static, not a dynamic, interpretation of its
cross-reference to the immunity of foreign governments.
Unlike the purpose of the Civil Rights Act, the purpose
here was not to ensure parity of treatment for international
organizations and foreign governments. Instead, as
the Court of Appeals for the D. C. Circuit pointed out
years ago, the statute’s reference to the immunities of
“foreign governments” was a “shorthand” for the immunities
those foreign governments enjoyed at the time the Act
was passed. Atkinson v. Inter-American Development
Bank, 156 F. 3d 1335, 1340, 1341 (1998).
III
Now consider the consequences that the majority’s
reading of the statute will likely produce—consequences
that run counter to the statute’s basic purposes. Although
the UN itself is no longer dependent upon the Immunities
Act, many other organizations, such as the FAO and several
multilateral development banks, continue to rely
upon that Act to secure immunity, for the United States
has never ratified treaties nor enacted statutes that might
extend the necessary immunity, commercial and noncommercial
alike.
12 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
A
The “commercial activity” exception to the sovereign
immunity of foreign nations is broad. We have said that a
foreign state engages in “commercial activity” when it
exercises “‘powers that can also be exercised by private
citizens.’” Republic of Argentina, 504 U. S., at 614. Thus,
“a contract to buy army boots or even bullets is a ‘commercial’
activity,” even if the government enters into the
contract to “fulfil[l] uniquely sovereign objectives.” Ibid.;
see also H. R. Rep. No. 94–1487, p. 16 (1976) (“[A] transaction
to obtain goods or services from private parties would
not lose its otherwise commercial character because it was
entered into in connection with an [Agency for International
Development] program”).
As a result of the majority’s interpretation, many of the
international organizations to which the United States
belongs will discover that they are now exposed to civil
lawsuits based on their (U. S.-law-defined) commercial
activity. And because “commercial activity” may well have
a broad definition, today’s holding will at the very least
create uncertainty for organizations involved in finance,
such as the World Bank, the Inter-American Development
Bank, and the Multilateral Investment Guarantee Agency.
The core functions of these organizations are at least
arguably “commercial” in nature; the organizations exist
to promote international development by investing in
foreign companies and projects across the world. See Brief
for International Bank for Reconstruction and Development
et al. as Amici Curiae 1–4; Brief for Member Countries
and the Multilateral Investment Guarantee Agency
as Amici Curiae 13–15. The World Bank, for example,
encourages development either by guaranteeing private
loans or by providing financing from its own funds if private
capital is not available. See Articles of Agreement of
the International Bank for Reconstruction and Development,
Art. I, Dec. 27, 1945, 60 Stat. 1440, T. I. A. S. No.
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13
BREYER, J., dissenting
1502.
Some of these organizations, including the International
Finance Corporation (IFC), themselves believe they do not
need broad immunity in commercial areas, and they have
waived it. See, e.g., Articles of Agreement of the International
Finance Corporation, Art. 6, §3, Dec. 5, 1955, 7
U. S. T. 2214, 264 U. N. T. S. 118 (implemented by 22
U. S. C. §282g); see also 860 F. 3d 703, 706 (CADC 2017).
But today’s decision will affect them nonetheless. That is
because courts have long interpreted their waivers in a
manner that protects their core objectives. See, e.g.,
Mendaro v. World Bank, 717 F. 2d 610, 614–615 (CADC
1983). (This very case provides a good example. The D. C.
Circuit held below that the IFC’s waiver provision does not
cover petitioners’ claims because they “threaten the
[IFC’s] policy discretion.” See 860 F. 3d, at 708.) But
today’s decision exposes these organizations to potential
liability in all cases arising from their commercial activities,
without regard to the scope of their waivers.
Under the majority’s interpretation, that broad exposure
to liability is at least a reasonable possibility. And that
being so, the interpretation undercuts Congress’ original
objectives and the expectations that it had when it enacted
the Immunities Act in 1945.
B
The majority’s opinion will have a further important
consequence—one that more clearly contradicts the statute’s
objectives and overall scheme. It concerns the important
goal of weeding out lawsuits that are likely bad or
harmful—those likely to produce rules of law that interfere
with an international organization’s public interest
tasks.
To understand its importance, consider again that international
organizations, unlike foreign nations, are
multilateral, with members from many different nations.
14 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
See H. R. Rep. No. 1203, at 1. That multilateralism is
threatened if one nation alone, through application of its
own liability rules (by nonexpert judges), can shape the
policy choices or actions that an international organization
believes it must take or refrain from taking. Yet that is
the effect of the majority’s interpretation. By restricting
the immunity that international organizations enjoy, it
“opens the door to divided decisions of the courts of different
member states,” including U. S. courts, “passing judgment
on the rules, regulations, and decisions of the international
bodies.” Broadbent v. Organization of Am. States,
628 F. 2d 27, 35 (CADC 1980); cf. Singer, Jurisdictional
Immunity of International Organizations: Human Rights
and Functional Necessity Concerns, 36 Va. J. Int’l L. 53,
63–64 (1995) (recognizing that “[i]t would be inappropriate
for municipal courts to cut deep into the region of autonomous
decision-making authority of institutions such as the
World Bank”).
Many international organizations, fully aware of their
moral (if not legal) obligations to prevent harm to others
and to compensate individuals when they do cause harm,
have sought to fulfill those obligations without compromising
their ability to operate effectively. Some, as I have
said, waive their immunity in U. S. courts at least in part.
And the D. C. Circuit, for nearly 40 years, has interpreted
those waivers in a way that protects the organization
against interference by any single state. See, e.g.,
Mendaro, 717 F. 2d, at 615. The D. C. Circuit allows a
lawsuit to proceed when “insistence on immunity would
actually prevent or hinder the organization from conducting
its activities.” Id., at 617. Thus, a direct beneficiary of
a World Bank loan can generally sue the Bank, because
“the commercial reliability of the Bank’s direct loans . . .
would be significantly vitiated” if “beneficiaries were
required to accept the Bank’s obligations without recourse
to judicial process.” Id., at 618. Where, however, allowing
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BREYER, J., dissenting
a suit would lead to “disruptive interference” with the
organization’s functions, the waiver does not apply. Ibid.
Other organizations have attempted to solve the liability/immunity
problem by turning to multilateral, not
single-nation, solutions. The UN, for instance, has
agreed to “make provisions for appropriate modes of settlement
of . . . [d]isputes arising out of contracts or other
disputes of a private law character.” Convention on Privileges
and Immunities of the United Nations, Art. VIII,
§29, 21 U. S. T. 1438, T. I. A. S. No. 6900. It generally
does so by agreeing to submit commercial disputes to
arbitration. See Restatement (Third) of Foreign Relations
Law of the United States §467, Reporters’ Note 7 (1987).
Other organizations, including the IFC, have set up alternative
accountability schemes to resolve disputes that
might otherwise end up in court. See World Bank, Inspection
Panel: About Us (describing World Bank’s threemember
“independent complaints mechanism” for those
“who believe that they have been . . . adversely affected by
a World Bank-funded project”), https://inspectionpanel.org/
about-us/about-inspection-panel (as last visited Feb. 25,
2019); Compliance Advisor Ombudsman, How We Work:
CAO Dispute Resolution (describing IFC and Multilateral
Investment Guarantee Agency dispute-resolution
process, the main objective of which is to help resolve issues
raised about the “social and environmental impacts of
IFC/MIGA projects”), www.cao-ombudsman.org/howwework/
ombudsman.
These alternatives may sometimes prove inadequate.
And, if so, the Immunities Act itself offers a way for America’s
Executive Branch to set aside an organization’s immunity
and to allow a lawsuit to proceed in U. S. courts.
The Act grants to the President the authority to “withhold,”
to “withdraw,” to “condition,” or to “limit” any of the
Act’s “immunities” in “light of the functions performed by
any such international organization.” 22 U. S. C. §288.
16 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
Were we to interpret the statute statically, then, the
default rule would be immunity in suits arising from an
organization’s commercial activities. But the Executive
Branch would have the power to withdraw immunity
where immunity is not warranted, as the Act itself provides.
And in making that determination, it could consider
whether allowing the lawsuit would jeopardize the
organization’s ability to carry out its public interest tasks.
In a word, the Executive Branch, under a static interpretation,
would have the authority needed to separate lawsuit
sheep from lawsuit goats.
Under the majority’s interpretation, by contrast, there is
no such flexibility. The Executive does not have the power
to tailor immunity by taking into account the risk of a
lawsuit’s unjustified interference with institutional objectives
or other institutional needs. Rather, the majority’s
holding takes away an international organization’s immunity
(in cases arising from “commercial” activities)
across the board. And without a new statute, there is no
way to restore it, in whole or in part. Nothing in the
present statute gives the Executive, the courts, or the
organization the power to restore immunity, or to tailor
any resulting potential liability, where a lawsuit threatens
seriously to interfere with an organization’s legitimate
needs and goals.
Thus, the static interpretation comes equipped with
flexibility. It comes equipped with a means to withdraw
immunity where justified. But the dynamic interpretation
freezes potential liability into law. It withdraws immunity
automatically and irretrievably, irrespective of institutional
harm. It seems highly unlikely that Congress
would have wanted this result.
* * *
At the end of World War II, many in this Nation saw
international cooperation through international organiza-
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BREYER, J., dissenting
tion as one way both to diminish the risk of conflict and to
promote economic development and commercial prosperity.
Congress at that time and at the request of many of
those organizations enacted the Immunities Act. Given
the differences between international organizations and
nation states, along with the Act’s purposes and the risk of
untoward consequences, I would leave the Immunities Act
where we found it—as providing for immunity in both
commercial and noncommercial suits.
My decision rests primarily not upon linguistic analysis,
but upon basic statutory purposes. Linguistic methods
alone, however artfully employed, too often can be used to
justify opposite conclusions. Purposes, derived from context,
informed by history, and tested by recognition of
related consequences, will more often lead us to legally
sound, workable interpretations—as they have consistently
done in the past. These methods of interpretation can
help voters hold officials accountable for their decisions
and permit citizens of our diverse democracy to live together
productively and in peace—basic objectives in
America of the rule of law itself.
With respect, I dissent.