Jam v. International Finance Corp.

(Slip Opinion) OCTOBER TERM, 2018 1

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 organi-

zations the “same immunity from suit . . . as is enjoyed by foreign

governments.” 22 U. S. C. §288a(b). At that time, foreign govern-

ments were entitled to virtually absolute immunity as a matter of in-

ternational grace and comity. In 1952, the State Department adopt-

ed 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 gov-

ernments presumptive immunity from suit, §1604, subject to several

statutory exceptions, including, as relevant here, an exception for ac-

tions based on commercial activity with a sufficient nexus with the

United States, §1605(a)(2).

Respondent International Finance Corporation (IFC), an IOIA in-

ternational organization, entered into a loan agreement with Coastal

Gujarat Power Limited, a company based in India, to finance the con-

struction 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 im-

munity that foreign governments enjoyed when the IOIA was enact-

ed. 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 foot-

ing. 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 immedi-

ate purpose of the IOIA immunity provision is expressed in language

that Congress typically uses to make one thing continuously equiva-

lent 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 stat-

ute adopts the law on that subject as it exists whenever a question

under the statute arises. In contrast, when a statute refers to anoth-

er statute by specific title, the referenced statute is adopted as it ex-

isted when the referring statute was enacted, without any subse-

quent 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 en-

joyed 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 ref-

erence 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 Depart-

ment, 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 en-

actment. Pp. 11–13.

(d) The IFC contends that interpreting the IOIA immunity provi-

sion to grant only restrictive immunity would defeat the purpose of

granting immunity in the first place, by subjecting international or-

ganizations to suit under the commercial activity exception of the

FSIA for most or all of their core activities. This would be particular-

ly 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) 3

Syllabus

inflated. The IOIA provides only default rules. An international or-

ganization’s charter can always specify a different level of immunity,

and many do. Nor is it clear that the lending activity of all develop-

ment 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) 1

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, Wash-

ington, 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 im-

munity from suit . . . as is enjoyed by foreign govern-

ments.” 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 lim-

ited. Most significantly, foreign governments are not

immune from actions based upon certain kinds of commer-

cial activity in which they engage. This case requires us to

determine whether the IOIA grants international organi-

zations the virtually absolute immunity foreign govern-

ments 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 mem-

ber countries to collectively pursue goals such as stabiliz-

ing the international economy, rebuilding war-torn na-

tions, and maintaining international peace and security.

Anticipating that those and other international organi-

zations 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 immun-

ities, 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 communica-

tions, the Act grants international organizations the privi-

leges 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) 3

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, with-

draw, 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 partic-

ular 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 rec-

ommendation, 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 classi-

cal 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 govern-

ments 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 com-

mercial 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 Immun-

ities Act. The FSIA codified the restrictive theory of for-

eign sovereign immunity but transferred “primary respon-

sibility 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 sub-

ject 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 interna-

tional development bank headquartered in Washington,

D. C. The IFC is designated as an international organiza-

tion under the IOIA. Exec. Order No. 10680, 3 CFR 86

(1957); see 22 U. S. C. §§282, 288. One hundred eighty-

four countries, including the United States, are members

of the IFC.

The IFC is charged with furthering economic develop-

ment “by encouraging the growth of productive private

enterprise in member countries, particularly in the less

Cite as: 586 U. S. ____ (2019) 5

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 pro-

tect 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 negli-

gence, 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 Devel-

opment 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 inter-

national organizations a static, absolute immunity that is,

by now, not at all the same ‘as is enjoyed by foreign gov-

ernments,’ 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-

Cite as: 586 U. S. ____ (2019) 7

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 organiza-

tions 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 be-

tween the two. The statute could otherwise have simply

stated that international organizations “shall enjoy abso-

lute 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 noncom-

parative 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 sover-

eign 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 en-

joyed 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 under-

stood 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 mak-

ing 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 town-

ships 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

Cite as: 586 U. S. ____ (2019) 9

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) (altera-

tions omitted). Whatever the ultimate purpose of interna-

tional organization immunity may be—the IOIA does not

address that question—the immediate purpose of the

immunity provision is expressed in language that Con-

gress typically uses to make one thing continuously equiv-

alent 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 dis-

covery 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 gen-

eral 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 im-

munity enjoyed by foreign governments is not a general

reference to an external body of law, but is instead a spe-

cific reference to a common law concept that had a fixed

meaning when the IOIA was enacted in 1945. And be-

cause 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 govern-

ments”: virtually absolute immunity.

But in 1945, the “immunity enjoyed by foreign govern-

Cite as: 586 U. S. ____ (2019) 11

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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 im-

munity 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 organ-

izations 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 author-

ity 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 dele-

gation, 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 other-

wise apply to a particular international organization. The

statute authorizes the President to take action with re-

spect 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 with-

holding 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 compati-

ble with the notion that those rules might themselves

change over time in light of developments in the law gov-

erning 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 mem-

ber 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 interna-

tional 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 excep-

tion 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 charac-

ter.”); Letter from Arnold Kanter, Acting Secretary of State, to Presi-

dent 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 Organi-

zation 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 litiga-

tion 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 organiza-

tion’s charter can always specify a different level of im-

munity. The charters of many international organizations

do just that. See, e.g., Convention on Privileges and Im-

munities 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 Inter-

national 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 im-

munity 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 lend-

ing 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 per-

formed in connection with the commercial activity. See

§1605(a)(2). Thus, if the “gravamen” of a lawsuit is tor-

tious activity abroad, the suit is not “based upon” commer-

cial 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” require-

ment. Tr. of Oral Arg. 25–26. In short, restrictive immun-

ity hardly means unlimited exposure to suit for interna-

tional 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 immu-

nity from suit and every form of judicial process as is en-

joyed 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 con-

sequence, the statute no longer allows international or-

ganizations immunity from lawsuits arising from their

commercial activities. In my view, the statute grants

international organizations that immunity—just as for-

eign governments possessed that immunity when Con-

gress enacted the statute in 1945. In reaching this conclu-

sion, I rest more heavily than does the majority upon the

statute’s history, its context, its purposes, and its conse-

quences. And I write in part to show that, in difficult

cases like this one, purpose-based methods of interpreta-

tion 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 “ ‘con-

tracts 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. Sala-

zar, 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 “at-

tached 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 “ ‘re-

straint 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 reme-

dies provision dynamically); and Allied-Bruce Terminix

Cos. v. Dobson, 513 U. S. 265, 275–276 (1995) (interpret-

ing the term “ ‘involving commerce’ ” in the Federal Arbi-

tration Act dynamically).

The Court, like petitioners, believes that the language of

the statute itself helps significantly to answer the stat-

ic/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

Cite as: 586 U. S. ____ (2019) 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” “un-

less 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 Crim-

inal 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., dis-

senting). 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 sup-

port 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 read-

ily 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 guar-

antee the then newly freed slaves the same legal rights

that other citizens enjoy.” CBOCS West, Inc. v. Hum-

phries, 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,

Cite as: 586 U. S. ____ (2019) 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, Statu-

tory Construction §§5207–5208 (3d ed. 1943); emphasis

added).

But a canon is at most a rule of thumb. Indeed, Suther-

land 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, sum-

marizing 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 Refer-

ence 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 stat-

ute’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 organiza-

tions.” 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 require-

ments of . . . international organizations conducting activi-

ties 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 organiza-

tions 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 multi-

lateral 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 organiza-

tions required member states to grant them broad immun-

ity from suit. The Bretton Woods Agreements, for exam-

ple, 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 fulfill-

ment 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 un-

derstood that foreign governments normally enjoyed im-

munity 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 immu-

nity in both commercial and noncommercial suits.

More than that, Congress likely recognized that immu-

nity in the commercial area was even more important for

many international organizations than it was for most

foreign governments. Unlike foreign governments, inter-

national 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 author-

ity,’ ” 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 effec-

tive in U. S. courts until Congress enacts additional legis-

lation 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 guaran-

tee 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 immu-

nity from suit, including in lawsuits based upon its commer-

cial activities. See Convention on Privileges and Immuni-

ties 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 pro-

vision, the Senate reported that the long delay in ratifica-

tion “appears to have been the result of the executive

branch being content to operate under the provisions of

the” Immunities Act. Id., at 2.

Cite as: 586 U. S. ____ (2019) 9

BREYER, J., dissenting

In light of this history, how likely is it that Congress,

seeking to “satisfy in full the requirements of . . . interna-

tional 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 interna-

tional 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 mean-

ing that would fail to grant not only full, but even partial,

immunity to many of those organizations.

B

Congress also intended to facilitate international organ-

izations’ 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. Wood-

bridge, 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 con-

centration 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 com-

mercial 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 presuma-

bly required entering into contracts); International Refu-

gee 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 abso-

lute immunity that UNRRA sought and expected, also

have intended that the statute be interpreted “dynamic-

ally,” 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 interna-

tional 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-

Cite as: 586 U. S. ____ (2019) 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 interna-

tional 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 immuni-

ties 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 sev-

eral 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 noncom-

mercial 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 ‘commer-

cial’ 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] transac-

tion 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 Interna-

tional 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 Develop-

ment et al. as Amici Curiae 1–4; Brief for Member Coun-

tries 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 pri-

vate capital is not available. See Articles of Agreement of

the International Bank for Reconstruction and Develop-

ment, Art. I, Dec. 27, 1945, 60 Stat. 1440, T. I. A. S. No.

Cite as: 586 U. S. ____ (2019) 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 Interna-

tional 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 activi-

ties, 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 stat-

ute’s objectives and overall scheme. It concerns the im-

portant goal of weeding out lawsuits that are likely bad or

harmful—those likely to produce rules of law that inter-

fere with an international organization’s public interest

tasks.

To understand its importance, consider again that in-

ternational 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 differ-

ent member states,” including U. S. courts, “passing judg-

ment on the rules, regulations, and decisions of the inter-

national 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 autono-

mous 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 compromis-

ing 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 conduct-

ing 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

Cite as: 586 U. S. ____ (2019) 15

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 liabil-

ity/immunity problem by turning to multilateral, not

single-nation, solutions. The UN, for instance, has

agreed to “make provisions for appropriate modes of set-

tlement of . . . [d]isputes arising out of contracts or other

disputes of a private law character.” Convention on Privi-

leges 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 alter-

native accountability schemes to resolve disputes that

might otherwise end up in court. See World Bank, Inspec-

tion Panel: About Us (describing World Bank’s three-

member “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 Multi-

lateral 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 Amer-

ica’s Executive Branch to set aside an organization’s im-

munity and to allow a lawsuit to proceed in U. S. courts.

The Act grants to the President the authority to “with-

hold,” 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 pro-

vides. And in making that determination, it could con-

sider 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 interpre-

tation, would have the authority needed to separate law-

suit 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 objec-

tives or other institutional needs. Rather, the majority’s

holding takes away an international organization’s im-

munity (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 institu-

tional 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-

Cite as: 586 U. S. ____ (2019) 17

BREYER, J., dissenting

tion as one way both to diminish the risk of conflict and to

promote economic development and commercial prosper-

ity. 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 con-

text, 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 to-

gether productively and in peace—basic objectives in

America of the rule of law itself.

With respect, I dissent.