# Amicus Curiae Brief — Jam v. Int'l Fin. Corp., 139 S. Ct. 304 (2018) (No. 17-1011)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-1011

pS __________ H_HHH_HH__HsHHHH_H_H_HsH_§fHssHsH—sH}
In the Supreme Court of the United States

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

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING REVERSAL

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
EDWIN S. KNEEDLER
Deputy Solicitor Genera!
JONATHAN Y. ELLIS
Assistant to the Solicitor
General
SHARON SWINGLE
Lewis 8. YELIN
Attorneys
JENNIFER G. NEWSTEAD Department of Justice
Legal Adviser Washington, D.C. 20530-0001
Department of State SupremeCtBriefs@usdoj. gov
Washington, D.C. 20520 (202) 514-2217

QUESTION PRESENTED

The International Organizations Immunities Act
generally affords international organizations “the same
immunity from suit and every form of judicial process
as is enjoyed by foreign governments.” 22 U.S.C. 288a.
The question presented is whether the immunity of in-
ternational organizations from suit and other judicial
process is governed by the immunity standards appli-
cable to foreign governments when the statute was en-
acted in 1945 or those applicable to foreign govern-
ments today.

(I)

TABLE OF CONTENTS

Page
Interest of the United States.....................0c-cccecccssssserssescesenseenees 1
ND ctiieniissdessinseeminnesnennnnieseesesnssenesmneenemanienstmatnermamerenianeet 2
Br II i inscniccsiiciencniieesintinncieatantepeioemmsesinnemtaionuneemids 10

affords designated international organizations the
same jurisdictional immunity as is currently enjoyed
a 13
A. The text, structure, and history of the IOLA
support application of the same immunity enjoyed
by foreign states to international organizations .......... 14
B. The conduct of the political Branches following
enactment of the IOLA supports affording
international organizations the jurisdictional
immunity currently enjoyed by foreign sovereigns ...... 24
C. The court of appeals’ view of international
organization immunity would present practical
ee eee

ania 29
oun. ies a 35
TABLE OF AUTHORITIES
Cases:
Alfred Dunhill of London, Inc. v. Republic of Cuba,
425 US. (1976) oll
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) 6
Atkinson v. Inter-American Dev. Bank, 156 ¥F 3d
1335 (D.C. Cir. 1998) 8, 9, 21, 23, 30
Barrett v. United States, 423 U.S. 212 (1976) 14
Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562
(1926) ienchebaeitniaseanibbianisabaapnimnsaimestisininn 17, 30

(111)

IV

Cases—Continued: Page
Burrage v. United States, 571 U.S. 204 (2014) ................... 31
Bzrak vy. United Nations, 597 ¥F 3d 107 (2d Cir.),

cert. denied, 562 U.S. 948 (2010) ae
Carr v. United States, 560 U.S. 438 (2010) ........-.-.....0000 14
Chickasaw Nation v. United States, 534 U.S. 84

Girt nnssistinctesinsssinciesnnecnsnsisnsneanosnatednssemnssenstentessescseassemecsancencte 20
Crosby v. National Foreign Trade Council,

Se RT crrtiniednicriecetinaneiinindiitinnaeiantintnennscnsneenamncemnte 24
Culver v. People, 43 N.E. 812 (Til. 1896) .. 15
Dole Food Co. v. Patrickson, 538 U.S. 468 (2008) ............... 14
El Encanto, Inc. v. Hatch Chile Ca., 825 F.3d 1161

ea a ne 15
Gaston v. Lamkin, 21 S.W. 1100 (Mo. 1898) 16
Gwaltney of Smithfield, Ltd v. Chesapeake Bay

Found., Inc. 484A U.S. 49 (1987) 15
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ................ 20
K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) ............. 16
Leo Sheep Ca. v. United States, 440 U.S. 668 (1979) .......... 17
Medellin v. Texas, 552 U.S. 491 (2008) 200.0... cccccccceeenenes 26
Mendaro v. World Bank, 717 F 2d 610

(D.C. Cir. 1983) 8,9
Murphy v. Smith, 138 S. Ct. 784 (2018) . 15
OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390

(2015) 33
Permanent Mission of India to the U.N. v.

City of N_Y., 551 U.S. 198 (2007) 14
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)............... 33
Republic of Austria v. Altmann, 541 U.S. 677

(2004) 4, 5, 31
Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) .... 18, 31
Samantar v. Yousuf, 560 U.S. 305 (2010) ................. 4, 29, 30

Sebelius v. Cloer, 133 S. Ct. 1886 (2013) ...............-cececeeeneee 16

Cases—Continued: Page
The Pesaro, 277 F . 473 (S.D.N.Y. 1921) .2........-.e0c-ec-e0-- 17, 30
The Schooner Exchange v. McF addon,

BE Ts Ce I te I cecerercctsencncccscenccscecscaserssnoccens 18
United States v. Deutsches Kalisyndikat

Gesellschaft, 31 F 2d 199 (S.D.N.Y. 1929) 31
United States v. Rodriguez-Rodriguez, F2d

See Ce ctecenitinentctnricnicaiencncnctniiciaateentiiinencipenemmeecermens 15
United States v. Wilson, 503 U.S. 329 (1992) 2.0... 14
Verlinden B.V. v. Central Bank of Nigeria,

a ee A cicitentntnicnseriissermneseennsnescstes 5, 6, 18, 30

Treaties, statutes, and regulations:

Agreement Establishing the Asian Development

Bank, art. 50, entered into force Aug. 22, 1966,

17 U.S.T. 1418, T.1.A.S8. No. 6108 o D2
Articles of Agreement of the International Develop-

ment Association, entered into force Sept. 24, 1960,

11 U.S.T. 2284, T.1.A.S. No. 4607 .. 25
Articles of Agreement of the International Finance
entered into force July 20, 1956,

7 US.T. 2197, T.1L.A.S. No. 3620 7
art. I 7
art. I(i) 7
art. VI, §3 7, 8, 26, 27

Articles of Agreement of the International Monetary
Fund, entered into force Dec. 27, 1945, 60 Stat.
1401, 2 U.N.TS. 39 .. 26
Rs Bis Oe tnneenrcmpntneiiiainimemenenn 27
Charter of the Organization of American States, art.
108, entered into force Dec. 13, 1951, 2 U.S.'T. 2394,
TLAS. No. 2361 mY

VI

Treaties, statutes, and regulations—Continued: Page

Convention on the Privileges and Immunities of the
Specialized Agencies, art. III, §4, entered into force
Dee. 2, 1948, 33 U.N.T.S. 261 26

Convention on the Privileges and Immunities of the
United Nations, entered into force Apr. 29, 1970,

21 U.S.T. 1418, T.1.A.S. No. GO00...............cccccsseesesereesenees 32

Headquarters Agreement Between the Government
of the United States of America and the Organiza-
tion of American States, art. IV, § 1, signed at
Washington May 14, 1992, S. Treaty Doc. No. 40,
102d Cong., 2d Sess. (1992) 27, 28

Marrakesh Agreement Establishing the World Trade
Organization, art. VIII(4), entered into force Jan. 1,

1995, 1867 U.N.'TS. 154 26
Foreign Sovereign Immunities Act of 1976,

EES Se 6

28 U.S.C. 1604 —

28 U.S.C. 1605(a)(1)-(6)....... 24

ee es He atscttcnneinernennnsiammenenmennnins 6, 33, 34

Se ie Se rcereerinnesrneemessnnessseeemmnmnqncsmiemeneceme 6

International Finance Corporation Act, Pub. L. No.
84-350, 69 Stat. 669 (1955) (22 U.S.C. 282 et seq.):

Ses IE sisteicesinsncensecesasecscesnecscsennescenmecntmetnemeneens 7
le i So ctcteciccncsnssccsezsensnesecennnsensescssocinasnennnsnsneesne 7
§ 9, 22 U.S.C. 282g we 1, 26
International Organizations Immunities Act, Pub. L.
No. 79-291, 59 Stat. 669 (22 U.S.C. 288 et 8€q. ).........-0000- 2
22 U.S.C. 288 passim
22 U.S.C. 288a passim
22 U.S.C. 288a-288e.... 2
22 U.S.C. 2BBa(a) ........-0c-eceeeeeeeee 2

22 U.S.C. 288a(b).. snreuibasitinidiehieeiieaamealads passim

Vil

Statutes and regulations—Continued: Page
§ 2(c), 22 U.S.C. ZBBalc) ..........-0.cesserseeereseeee 3, 16, 20
22 U.S.C. 288a(d) 3, 16
§ 3, 22 U.S.C. 288b............... 4, 20
A e D ctrcteriennnnmiomintnnents 3, 16, 20
22 U.S.C. 288d 16
22 U.S.C. 288d(a) 3
§ 7(b), 22 U.S.C. 288d(b) 3, 16, 20
Suits in Admiralty Act, Pub. L. No. 66-156,

41 Stat. 525 (1920) (46 U.S.C. 30901 et seq.) 5
19 U.S.C. 3511(b) 26
22 U.S.C. 284 25
22 U.S.C. 285g 32
22 U.S.C. 286h 26
Exec. Order No. 9698, 11 Fed. Reg. 1809 (1946).................. 2
Exec. Order No. 10,533, 19 Fed. Reg. (1954)............. 27
Exec. Order No. 10,680, 21 Fed. Reg. 7647 (1956)...............8
Exec. Order No. 11,718, 38 Fed. Reg. 12,797 (1973) .......... 22
Exec. Order No. 11,966, 42 Fed. Reg. 4331 (1977).............25

ixec. Order No. 12,425, 48 Fed. Reg. 28,069 (1983).......... 22
Miscellaneous:
91 Cong. Rec. (1945):
SO en 19
SS See 19, 23
p. 12,5380 23
p. 12,531 20
p. 12,582 19
140 Cong. Rec. 28,361 (1994) 28
H.R. No. 4489, 79th Cong., Ist Sess. (1945)............ 10, 19, 20
2 Green Haywood Hackworth, Digest of
International Law (1941) 2.........0c0cecereeeeeees 17

Vill

Miscellaneous—-Continued: Page

Letter from Roberts B. Owen, Legal Adviser, to

Leroy D. Clark, Gen. Counsel, Equal Emp’t

Opportunity Comm'n (June 24, 1980) .. 28
Letter from Jack B. Tate, Acting Legal Adviser, to

the Attorney General ( May 19, 1952), reprinted in

Alfred Dunhill of London, Inc. v. Republic of Cuba,

425 U.S. 6R2 (1976) 5, 6, 16, 17, 18, 24
Letter from Detlev F. Vagta, Office of the

Legal Adviser, to Robert M. Carswell, Jr.,

Organization of American States (Mar. 24, 1977)...... 28, 30
S. Rep. No. 861, 79th Cong., Ist Sess. (1945)...... 9, 20, 23, 34

Antonin Sealia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) 15
2B Norman J. Singer, et al., Sutherland Statutes &
Statutory Construction (7th ed. rev. 2012) ............-«- 15

2 J. G. Sutherland, Sutherland Statutes & Statutory
Construction (John Laewis ed. 1904) 2000... ccccccccenceeeeennnee 15

In the Supreme Court of the Gnited States

No. 17-1011
BUDHA ISMAIL JAM, ET AL., PETITIONERS
vz.
INTERNATIONAL FINANCE CORPORATION

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The United States’ participation in international! or-
ganizations is a critical component of the Nation’s for-
eign relations and reflects an understanding that robust
multilateral engagement is a crucial tool in advancing
national interests. The United States participates in or
supports nearly 200 international organizations and
other multilateral entities, including major interna-
tional financial institutions such as the International
Monetary Fund (IMF) and the World Bank. The United
States contributes billions of dollars annually to those
organizations and entities. In recognition of the United
States’ leadership role, nearly 20 international organi-
zations are headquartered in the United States, and
many others have offices here. For these reasons, the
United States has a substantial interest in the proper

(1)

2

interpretation of the provisions of the International Or-
ganizations Immunities Act (IOLA or Act), 22 U.S.C. 288
et seq., that define international organizations’ amena-
bility to suit in the United States.

STATEMENT

1. a. Congress enacted the [OIA in 1945 to provide
certain privileges and immunities to international or-
ganizations, their officers, and employees. See Pub. L.
No. 79-291, 59 Stat. 669 (22 U.S.C. 288, et seg.). The Act
defines “international organization” as “a public inter-
national organization in which the United States partic-
ipates” pursuant to a treaty or an Act of Congress, and
which is designated by the President in an Executive
Order “as being entitled to enjoy the privileges, exemp-
tions, and immunities” provided by the Act. 22 U.S.C.
288; see, e.g., Exec. Order No. (EO) 9698, 11 Fed. Reg.
1809 (1946) (designating, among others, the United Na-
tions and the Pan American Union). The Act then
grants such international organizations the capacity to
contract, to acquire and dispose of real and personal
property, and to sue “to the extent consistent with the
instrument creating them,” 22 U.S.C. 288a(a), as well as
a series of privileges, exemptions, and immunities. See
22 U.S.C. 288a-288e.

Some of these privileges, exemptions, and immuni-
ties are provided by reference to comparable privileges,
exemptions, and immunities enjoyed by foreign states.
Of greatest relevance here, the Act provides:

International organizations, their property and their
assets, wherever located, and by whomsoever held,
shall enjoy the same immunity from suit and every
form of judicial process as is enjoyed by foreign gov-
ernments, except to the extent that such organiza-
tions may expressly waive their immunity for the

3

purpose of any proceedings or by the terms of any
contract.

22 U.S.C. 288a(b). With respect to customs duties and
taxes imposed on imported items, the registration of
foreign agents, and the treatment of official communi-
cations, the IOLA likewise grants international organi-
zations the “privileges, exemptions, and immunities
*** accorded under similar circumstances to foreign
governments.” 22 U.S.C. 288a(d). And the [OIA simi-
larly affords the representatives of foreign govern-
ments to international organizations, the officers and
employees of such organizations, and immediate family
residing with such individuals “the same privileges, ex-
emptions, and immunities” under immigration law “as
are accorded under similar circumstances to officers
and employees, respectively, of foreign governments,
and members of their families.” 22 U.S.C. 288d(a).
Other privileges, exemptions, and immunities are
provided without reference to those enjoyed by foreign
governments. The property and assets of international
organizations, for example, are “immune from search,
unless such immunity [is] expressly waived, and from
confiscation.” 22 U.S.C. 288a(c). Similarly, internation-
al organizations are “exempt” from all federal property
taxes. 22 U.S.C. 288c. Representatives of foreign gov-
ernments to international organizations, as well as of-
ficers and employees of such organizations, are “im-
mune from suit and legal process relating to acts per-
formed by them in their official capacity and falling
within their functions,” absent waiver by the foreign
government or the international organization. 22 U.S.C.
288d(b). And the “baggage and effects” of those per-
sons and their families are admitted into the United

4

States “free of customs duties” or importation taxes.
22 U.S.C. 288b.

Finally, the LOLA authorizes the President to “with-
hold or withdraw,” or to “condition or limit,” any of the
privileges, exemptions, and immunities provided by the
Act “in the light of the functions performed by any [des-
ignated] international organization.” 22 U.S.C. 288. It
further authorizes the President to revoke an entity’s
designation as an international organization if the Pres-
ident determines that the organization or its personne!
have “abuse[d| *** the privileges, exemptions, and
immunities provided [by the Act] or for any other rea-
son.” Ibid.

b. When Congress enacted the IOLA in 1945, the im-
munity of foreign states was determined by a “two-step
procedure.” Samantar v. Yousuf, 560 U.S. 305, 311
(2010). First, a foreign state “could request a ‘sugges-
tion of immunity’ from the State Department.” /bid. (ci-
tation omitted). “If the request was granted, the dis-
trict court surrendered its jurisdiction.” /bid. Second,
if the State Department did not inform the court of its
views concerning the foreign state’s immunity, the
court “had authority to decide for itself whether all the
requisites for such immunity existed,” i e., “whether the
ground of immunity is one which it is the established
policy of the [State Department] to recognize.” /d. at
311-312 (citations omitted).

Historically, the State Department generally sub-
scribed to the “classical or absolute” theory of foreign
sovereign immunity. Republic of Austria v. Altmann,
541 U.S. 677, 690 (2004) (citation omitted). Under that
theory, “a sovereign cannot, without his consent, be
made a respondent in the courts of another sovereign.”

5

Ibid. (citation omitted). Accordingly, “the State De-
partment ordinarily requested immunity in all actions
against friendly foreign sovereigns.” Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480, 486 (1983). In
1952, however, the State Department announced its
adoption of the “restrictive” theory of foreign sovereign
immunity, under which foreign states generally are af-
forded immunity only for their sovereign or public acts,
and not for their commercial or other private acts. See
Letter from Jack B. Tate, Acting Legal Adviser, to the
Attorney General (May 19, 1952), reprinted in Alfred
Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.
682, 711-714 (1976) (Tate Letter).

In the Tate Letter, the State Department noted that
“for some time” it had “considerjed] the question
whether the practice of the Government in granting im-
munity from suit to foreign governments made parties
defendant in the courts of the United States without
their consent should not be changed.” 425 U.S. at 711.
The Department explained that there were “two con-
flicting concepts of sovereign immunity, each widely
held and firmly established.” /bid. And it observed
that, although the United States had generally followed
the absolute theory, international practice had been
trending towards the restrictive theory since at least
the 1920s. See id. at 712-713. Indeed, the United States
itself had “adopted a policy of not claiming immunity for
its public owned or operated merchant vessels”—a con-
text of some “importance” in the “field of sovereign im-
munity.” /d. at 713; see Suits in Admiralty Act, Pub. L.
No. 66-156, 41 Stat. 525 (1920) (46 U.S.C. 30901 et seq.).

The Department reasoned that by 1952, “with the
possible exception[s]” of the United Kingdom and the
Soviet Union, “little support ha[d] been found * * * for

6

continued full acceptance of the absolute theory.” Tate
Letter, 425 U.S. at 714. It noted that continuing to grant
foreign governments absolute immunity in U.S. courts
would be inconsistent with the United States’ practice
of “subjecting itself to suit in these same courts in both
contract and tort.” /bid. And the Department reasoned
that the “widespread and increasing practice on the
part of governments of engaging in commercial activi-
ties ma[de] necessary a practice which w{ould] enable
persons doing business with them to have their rights
determined in the courts.” /bid. Accordingly, the State
Department announced that “it w{ould] [t}hereafter be
the Department’s policy to follow the restrictive theory
of sovereign immunity in the consideration of requests
of foreign governments for a grant of sovereign immun-
ity.” Ibid.

c. Congress subsequently enacted the Foreign Sov-
ereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1602
et seq., codifying, “as a matter of federal law, the restric-
tive theory of sovereign immunity.” Verlinden, 461 U.S.
at 488. The FSIA now provides the sole basis for
obtaining jurisdiction over a foreign state in a civil case
brought in a U.S. court. Argentine Republic v. Amer-
ada Hess Shipping Corp., 488 U.S. 428, 434-435 (1989).
Under the FSIA, foreign states and their agencies and
instrumentalities are immune unless a claim falls within
one of the statute’s specified exceptions. 28 U.S.C.
1604. The exceptions permit, inter alia, certain actions
against a foreign state that arise out of its commercial
activities, 28 U.S.C. 1605/a)(2), and certain torts com-
mitted in the United States, 28 U.S.C. 1605(a)(5).

2. a. Respondent International Finance Corpora-
tion (IFC) is an international organization established
by an international agreement to which the United

7

States is a party. See Articles of Agreement of the In-
ternational Finance Corporation, entered into force
July 20, 1956, 7 U.S.T. 2197, T.1.A.S. No. 3620 (Articles
of Agreement). The IFC’s purpose is “to further eco-
nomic development by encouraging the growth of pro-
ductive private enterprise in member countries, partic-
ularly in the less developed areas,” by among other
things, making investments in cases “where sufficient
private capital is not available on reasonable terms.”
Id. art. I, (i). The Articles of Agreement provide that
“{ajctions may be brought against the Corporation only
in a court of competent jurisdiction in the territories of
a member in which the Corporation has an office” or
other specified connection. /d. art. VI, §3. Actions
“brought by members” of the IFC “or persons acting
for or deriving claims from members” are prohibited.
Ibid. The Articles of Agreement further provide for the
immunity of IFC property from “seizure, attachment or
execution before the delivery of final judgment against
Corporation.” bid.

Shortly after the United States signed the Articles
of Agreement, Congress enacted the International Fi-
nance Corporation Act, authorizing the President “to
accept membership for the United States” in the IFC.
Pub. L. No. 84-350, § 2, 69 Stat. 669 (1955) (22 U.S.C.
282). The statute also provides for original jurisdiction
in United States district courts over any suit brought
against the IFC “in accordance with the Articles of
Agreement.” /d. § 8 (22 U.S.C. 282f). And it provides
“full force and effect in the United States” to, among
other provisions, article VI, § 3 of the Articles of Agree-
ment, relating to the IFC’s amenability to suit. Jd. § 9
(22 U.S.C. 282g). The President subsequently desig-
nated the IFC as an international organization “entitled

8

to enjoy the privileges, exemptions, and immunities con-
ferred by” the IOLA. EO 10,680, 21 Fed. Reg. 7647 (1956).

b. Petitioners are residents of India who live near
the Tata Mundra Power Plant in Gujarat. Pet. App. 2a.
The IFC provided a loan of $450 million to the owner of
the plant for its construction and operation. /d. at 3a.
In accordance with IFC policy, the loan agreement con-
tained provisions designed to protect local communities,
requiring the loan recipient to manage environmental
and social risks posed by the financed project. /d. at 3a,
25a. The IFC retained supervisory authority over the
plant owner’s compliance with the environmental and
social risks provisions and could revoke financial sup-
port for noncompliance. /d. at 3a. According to an audit
conducted by the IFC’s ombudsman, the owner of the
plant did not comply with the environmental and social
risks provisions; the IFC, however, did not revoke the
plant’s financing. /bid.

Petitioners sued the IFC, asserting claims that “are
almost entirely based on tort,” but raising one claim as
alleged third-party beneficiaries of the environmental
and social risks provisions of the loan agreement. Pet.
App. 3a. The district court dismissed petitioners’ suit,
conclyding that it was barred by the court of appeals’
decision in Atkinson v. Inter-American Development
Bank, 156 F.3d 1335 (D.C. Cir. 1998). Pet. App. 29a-
30a, 37a-38a.'

In Atkinson, the court of appeals held that, in provid-
ing international organizations with the “same immun-
ity *** as is enjoyed by foreign governments,”

' The district court further determined that article V1, § 3 of the
Articles of Agreement did not waive the IFC’s immunity from suit,
under the standards the court of appeals adopted in Mendaro v.
World Bank, 717 F.2d 610 (D.C. Cir. 1983). Pet. App. 30a-37a.

9

22 U.S.C. 288a(b), Congress intended to adopt foreign
sovereign immunity law “only as it existed in 1945—
when immunity of foreign sovereigns was absolute.”
156 F.3d at 1341. The court reasoned that the statutory
text lacked “a clear instruction as to whether Congress
meant to incorporate into the IOLA subsequent changes
to the law of immunity of foreign sovereigns.” /bid. But
it believed that by authorizing the President to modify
a designated organization’s immunities for abuse or
other reasons under 22 U.S.C. 288, Congress “dele-
gate|d] to the President the responsibility for updating
the immunities of international organizations in the face
of changing circumstances.” Atkinson, 156 F.3d at
1341. The court also found telling a statement in the
Senate Report explaining that the President could re-
strict an international organization’s immunity if it en-
gaged in “activities of a commercial nature.” /J/bid.
(quoting S. Rep. No. 861, 79th Cong., Ist Sess., 2 (1945)
(Senate Report)).

Noting that it was bound by Atkinson’s interpreta-
tion, the court of appeals in this case affirmed the dis-
trict court’s dismissal of petitioners’ suit. Pet. App. 4a-
7a.” Judge Pillard concurred for the same reason, but
wrote separately to express the view that Atkinson was
wrongly decided. /d. at 12a-22a. Judge Pillard rea-
soned that “[wjhen a statute incorporates existing law
by reference, the incorporation is generally treated as
dynamic, not static,” and incorporates changes to the
incorporated body of law. /d. at 12a-13a. She concluded

* The court of appeals also affirmed the district court’s determi-
nation that the IFC had not waived its immunity under Mendaro,
supra. Pet. App. 7a-lla. This Court declined to grant further re-
view of that determination. See 138 S.Ct. 2026 (2018) (granting cer-
tiorari “limited to Question 1”); Pet. i.

10

that Atkinson was mistaken in relying on the Presi-
dent’s ability under the IOIA to restrict international
organizations’ immunity, because, in her view, that au-
thority is “organization- and function-specific” and does
not authorize the President generally to modify the ap-
plicable standard. /d. at 13a-14a. And she noted that
Congress had considered and rejected a provision that
would have expressly granted absolute immunity to in-
ternational organizations. /d. at 14a-15a (discussing
H.R. 4489, 79th Cong., Ist Sess. § 2(b)). Judge Pillard
further explained that Atkinson’s static interpretation
conflicted with the “considered view” of the State De-
partment that international organizations are subject to
suit for commercial activities by virtue of the FSIA’s en-
actment. Jd. at 15a. Finally, Judge Pillard stated that
it made no sense to permit commercial suits against a
foreign state acting alone, but not when states act in
concert through an international organization. /d. at 16a.

SUMMARY OF ARGUMENT

Section 288a(b) of the IOLA affords designated inter-
national organizations the same jurisdictional immunity
as is currently enjoyed by foreign states, not as was en-
joyed in 1945.

A. The text, structure, and history of the IOLA sup-
port this interpretation. Congress’s use of the present-
tense phrase—“as is enjoyed”—is most naturally read
to refer to the immunity afforded to foreign sovereigns
when the statute is applied, not some 70 years in the
past. If Congress had intended a backward-looking in-
quiry, it could have stated that international organiza-
tions shall be afforded the same immunity “as was en-
joyed on the Act’s effective date” or something similar.
Congress’s decision not to use such language is telling,
particularly in light of the background principle that

ll

statutory references to other bodies of law generally in-
corporate subsequent amendments to the referenced
body of law.

This interpretation of Section 288a(b) is further sup-
ported by the structure of the IOLA. While Congress
defined some protections for international organiza-
tions by reference to the protections afforded foreign
governments, it defined others under a specific substan-
tive standard. That suggests that, if Congress had in-
tended to adopt a particular standard for international
organizations’ immunity from suit, it would have done
so expressly—particularly given that, at the time, inter-
national consensus was trending towards the restrictive
theory and the State Department itself had declined to
recognize immunity in suits involving foreign state-
owned vessels engaged in commercial activities.

Finally, the history of the IOLA also supports afford-
ing international organizations the same jurisdictional
immunity as is afforded foreign states at the time of
suit. As originally passed by the House of Representa-
tives, Section 288a(b) expressly afforded international
organizations absolute immunity from suit. But the
Senate stripped the grant of absolute immunity and re-
placed it with the current language. This Court ordi-
narily assumes that Congress did not intend sub silen-
tio to enact statutory language that it earlier discarded.

B. The conduct of the Executive Branch under the
IOLA and subsequent congressional enactments further
support this interpretation.

The process for affording privileges and immunities
to international organizations typically proceeds in three
parts: (1) the Executive Branch enters into an agreement
to form an international organization; (2) Congress au-
thorizes the United States’ participation; and (3) the

12

President issues an Executive Order designating the
organization as entitled to the privileges and immuni-
ties afforded by the IOLA. But when agreements re-
quire the United States to afford the organization abso-
lute immunity from suit (and the agreement is not a self-
executing treaty), Congress has provided for such im-
munity by separate legislation. If the court of appeals
were correct that the IOLA grants international organ-
izations absolute immunity from suit, such legislation
would be redundant.

Moreover, in those and other circumstances, the
State Department has made clear its view that the ju-
risdictional immunity afforded by the IOLA tracks the
immunity afforded to foreign governments under the
FSIA. This longstanding interpretation—evinced by
actions of both political Branches—deserves deference.

C. Adopting the court of appeals’ interpretation of
Section 288a(b) would present practical difficulties.
First, courts would have to decide whether the provision
incorporates the substantive rules of foreign sovereign
immunity applicable in 1945 or the procedural ones.
The court of appeals and respondent have both assumed
that Section 288a(b) incorporates only the then-existing
substantive standards, but neither explains why that
would be so. And even if only the substantive standards
were incorporated, there could remain some uncer-
tainty in determining the contours. Although the State
Department afforded virtually absolute immunity from
suit to foreign governments in 1945, there was some un-
certainty regarding the immunity of state-owned mer-
chant vessels and companies engaged in commercial ac-
tivity. Under the court of appeals’ view, courts would
have to determine any disputed metes and bounds of

13

foreign sovereign immunity, as they existed in the poli-
cies of the State Department and in federal courts some
70 years in the past—and perhaps in circumstances that
neither ever faced or that did not closely fit the situation
of a particular international organization.

Respondent raises policy concerns about an inter-
pretation of Section 288a(b) under which an interna-
tional organization’s immunity would conform to that of
a foreign state at the time of suit. Those concerns are
misplaced and cannot justify disregarding the plain text
of the statute. In any event, the legislative history of
the IOIA is replete with statements reflecting a com-
mitment to put international organizations’ immunity
on par with that afforded to foreign sovereigns. That
the IOIA leaves respondent subject to suit in similar
circumstances as foreign governments today is consis-
tent with Congress’s judgment in Section 288a(b).

ARGUMENT

THE INTERNATIONAL ORGANIZATIONS IMMUNITIES
ACT AFFORDS DESIGNATED INTERNATIONAL ORGANI-
ZATIONS THE SAME JURISDICTIONAL IMMUNITY AS IS
CURRENTLY ENJOYED BY FOREIGN STATES

The IOIA provides that international organizations
“enjoy the same immunity from suit * * * as is enjoyed
by foreign governments.” 22 U.S.C. 288a(b). The text,
structure, and history of the Act, as well as Executive
Branch practice and related congressional enactments,
all confirm that the jurisdictional immunity afforded by
the Act is the jurisdictional immunity currently enjoyed
by foreign states and as it might be modified over time,
not as it existed when the Act was enacted in 1945. The
court of appeals’ contrary determination is incorrect,
would present practical difficulties for federal courts,

14

and is not justified by the policy concerns that respond-
ents invoke.

A. The Text, Structure, And History Of The IOLA Support
Application Of The Same Immunity Enjoyed By Foreign
States To International Organizations

1. In construing Section 288a(b), this Court should
“begin, as always, with the text of the statute.” Perma-
nent Mission of India to the U.N. v. City of N.Y.
551 U.S. 193, 197 (2007). Section 288a(b) provides
simply that “[iJnternational organizations *** shall
enjoy the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments.”
22 U.S.C. 288a(b). On its face, the plain text of this pro-
vision strongly suggests that the Act affords interna-
tional organizations the immunity that is enjoyed by
foreign governments today, not the immunity enjoyed
by foreign governments in 1945.

a. To begin, Congress’s use of the present tense—
“as is enjoyed”—supports that interpretation. This
Court has “frequently looked to Congress’ choice of
verb tense to ascertain a statute’s temporal reach.”
Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g.,
Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003)
(“{T}he plain text of this provision, because it is ex-
pressed in the present tense, requires that instrumen-
tality status [under the FSIA] be determined at the
time suit is filed.”); United States v. Wilson, 503 U.S.
329, (1992) (“Congress’ use of a verb tense is signif-
icant in construing statutes.”); Barrett v. United States,
423 U.S. 212, 216 (1976) (reasoning that Congress’s use
of the present perfect tense denoted “an act that has
been completed” by the time of the offense “without am-
biguity”). Here, because Section 288a employs the pre-
sent tense to make the comparison to foreign sovereign

15

immunity, the statute is most naturally read to refer to
the immunity granted to foreign sovereigns at the time
that the statute is applied, not some 70 years in the past.
“Congress could have phrased its requirement in lan-
guage that looked to the past”—here, by referring to a
foreign government’s immunity on the IOIA’s enact-
ment date—“but it did not choose this readily available
option.” Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 484 U.S. 49, 57 (1987). “(Respect for
Congress’s prerogatives as policymaker means care-
fully attending to the words it chose rather than replac-
ing them with others of [the Court's] own.” Murphy v.
Smith, 138 8. Ct. 784, 788 (2018).

b. Congress’s choice of words is particularly instruc-
Live here, in light of background principles of statutory
interpretation for references of this sort. As one prom-
inent treatise explains, “[wjhen a statute adopts the
general law on a given subject, the reference is con-
strued to mean that the law is as it reads thereafter at
any given time including amendments subsequent to
the time of adoption.” 2B Norman J. Singer, et al.,
Sutherland Statutes & Statutory Construction § 51:7
(7th ed. rev. 2012) (citation omitted); see, e.g., El En-
canta, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th
Cir. 2016); United States v. Rodriguez-Rodriguez, 863
F.2d 830, 831 (11th Cir. 1989); cf. Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal
Texts § 7, at 90 (2012) (“A legal text referring to a statuto-
rily defined term is understood to have a silent gloss, ‘as
the definition may be amended from time to time.’”).

This proposition well pre-dates the IOLA’s enact-
ment. See 2 J.G. Sutherland, Sutherland Statutes &
Statutory Construction § 405, at 789 (John Lewis ed.
1904) (citing, e.g., Culver v. People, 43 N.E. 812, 814 (Ill.

16

1896)). And it reaffirms the most natural reading of the
text. See Gaston v. Lamkin, 21 S.W. 1100, 1103 (Mo.
1893) (describing the typical statute to which this prin-
ciple applies as one that refers “generally to the estab-
lished law, by some such expression as ‘the same as is
provided for by law’ in given cases”) (citation omitted).

2. This interpretation of Section 288a(b) is further
supported by the structure of the IOIA. See K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In as-
certaining the plain meaning of the statute, the court
must look to the particular statutory language at issue,
as well as the language and design of the statute as a
whole.”).

While Congress defined some privileges and immun-
ities of international organizations and their officers
and employees by reference to the immunity of foreign
governments, it defined other privileges and immuni-
ties under a specific substantive standard. Compare
22 U.S.C. 288a(b) and (d), 288d, with 22 U.S.C. 288a(c),
288c, and 288d(b); see pp. 2-4, supra. This distinction
suggests that, if Congress had intended to adopt a par-
ticular fixed standard for international organizations’
immunity from suit, it would have done so expressly.
See Sebelius v. Cloer, 133 S. Ct. 1886, 1894 (2013)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.”) (citation omitted).

That is especially so here, given that in the interna-
tional community at the time of the [OLA’s enactment,
there were “two conflicting concepts of sovereign im-
munity, each widely held and firmly established.” Tate
Letter, 425 U.S. at 711. Although the State Department

17

still subscribed to the absolute theory of immunity in
1945, international consensus had been trending to-
wards the restrictive theory. /d. at 712-713. And, when
the State Department formally adopted the restrictive
theory just seven years later, it explained that it had
been considering the change “for some time.” /d. at
711; pp. 4-6, supra; see Leo Sheep Co. v. United States,
440 U.S. 668, 669 (1979) (“[C Jourts, in construing a stat-
ute, may with propriety recur to the history of the times
when it was passed * * * to ascertain the reason as well
as the meaning of particular provisions in it.”) (citation
omitted).

In fact, in suits filed not directly against foreign sov-
ereigns, but instead in in rem suits against foreign
state-owned merchant vessels, the State Department
by 1945 had declined to recognize immunity. The Pe-
saro, for example, was an admiralty suit brought
against an Italian state-owned vessel operated by em-
ployees of a government ministry “engaged in commer-
cial trade carrying passengers and goods for hire.”
277 F. 473, 473-474 (S.D.N.Y. 1921). The State Depart-
ment informed the court that “government-owned mer-
chant vessels” or privately owned vessels requisitioned
by foreign states and “employed in commerce” are not
“entitled to the immunities accorded public vessels of
war.” Jd. at 479 n.3;* see 2 Green Haywood Hackworth,
Digest of International Law § 173, at 438-439 (1941) (re-
producing letter from Fred K. Nielsen, Solicitor for De-
partment of State, to Julian W. Mack, U.S. District
Judge (Aug. 2, 1921)); see also id. at 423-465 (discussing

* This Court subsequently recognized immunity for the vessel,
however, despite the State Department’s decision not to do so. See
Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562, 574 (1926).

18

State Department practice between 1914 and 1938 con-
cerning immunity of state-owned merchant vessels).

Then, just months before Congress enacted the
IOLA, this Court deferred to the State Department’s de-
cision to refrain from suggesting immunity for a vessel
that was owned by the Republic of Mexico, but in the
possession of a private corporation that had contracted
with Mexico to use the vessel for commercial purposes,
with a share of the profits paid to Mexico. Republic of
Mezico v. Hoffman, 324 U.S. 30, 34 (1945). The State
Department “certified that it recognize[d]” Mexico’s
ownership, but “refrained from certifying that it al-
low{ed] the immunity.” /d. at 36. Relying heavily on
the State Department’s statement, the Court held that
the suit could proceed. /d. at 38; see ibid. (“[I}t is the
duty of the courts, in a matter so intimately associated
with our foreign policy and which may profoundly affect
it, not to enlarge an immunity to an extent which the
government, although often asked, has not seen fit to
recognize.”).‘

When the State Department adopted the restrictive
theory in 1952, it noted “the importance played by cases
involving public vessels in the field of sovereign immun-
ity.” Tate Letter, 425 U.S. at 713; see, e.g., Verlinden
B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486
(1983) (noting that “[ajlthough the narrow holding
of The Schooner Exchange |v. McFaddon, 11 U.S.
(7 Cranch) 116 (1812)] was only that the courts of the
United States lack jurisdiction over an armed ship of a
foreign state found in our port, that opinion came to be
regarded as extending virtually absolute immunity to

* The Court in Hoffman criticized the Court’s failure in Pesaro to
consider that “the political branch of the government” had declined
to recognize immunity in that suit. 324 U.S. at 35 n.1.

19

foreign sovereigns”). In light of the State Department’s
own practice in such cases leading up to enactment of
the IOIA, developments in foreign sovereign immunity
law could be expected. Congress therefore would have
had reason to directly enact a standard of absolute im-
munity for international organizations, if that is what it
sought to afford regardless of any future developments
in the law.

3. Finally, the drafting history of the IOLA also sup-
ports an interpretation of Section 288a(b) that ties an
international organization’s jurisdictional immunity to
that accorded foreign states at the time of suit.

a. As originally passed by the House of Representa-
tives, what is now Section 288a(b) expressly defined the
immunity standard for international organizations. The
bill provided: “International organizations, their prop-
erty and their assets, wherever located, and by whom-
soever held, shall enjoy immunity from suit and every
form of judicial process [unless waived].” H.R. 4489,
79th Cong. § 2(b) (passed by the House of Representa-
tives, Nov. 20, 1945); see 91 Cong. Rec. 10,867 (1945). If
the House’s version had been enacted, there could be no
question that such organizations would be entitled to
absolute immunity from suit, regardless of any depar-
ture from such immunity for foreign governments. But,
of course, that did not occur. Instead, the Senate amen-
ded Section 288a(b), stripping the grant of absolute im-
munity and replacing it with a reference to “the same
immunity * * * as is enjoyed by foreign governments.”
H.R. 4489, 79th Cong. § 2(b) (passed by the Senate, Dec.
20, 1945); see 91 Cong. Rec. 12,432 (1945). The House
accepted the Senate amendment without objection.
91 Cong. Ree. 12,532 (1945).

20

“Few principles of statutory construction are more
compelling than the proposition that Congress does not
intend sub silentio to enact statutory language that it
has earlier discarded in favor of other language.” /NS
v. Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987); ac-
cord Chickasaw Nation v. United States, 534 U.S. 84,
93 (2001). There is no sound basis for departing from
that principle here.

b. Indeed, other aspects of the legislative history
confirm the significance of that change. By contrast to
Section 288a(b), the Senate left unchanged other provi-
sions that expressly define certain privileges and im-
munities. Compare H.R. 4489, 79th Cong. §§ 2(c), 3, 6,
and 7(b) (passed by the House, Nov. 20 1945), with IOLA
§§ 2(c), 3, 6, and 7(b), 59 Stat. 669, 671, 672; see Pet. App.
14a-15a (Pillard, J., concurring) (noting comparison).
The Senate Report explained that, “[iJn general,” the
amended bill would provide “privileges and immunities
*** similar to those granted by the United States to
foreign governments and their officials,” except that, in
some circumstances, it would confer “somewhat more
limited” protections. Senate Report 3. The examples of
the more limited privileges and immunities identified by
the Senate Report are those for which Congress ex-
pressly identified the applicable standard. /bid.

The Senate Report thus reflects Congress’s intent
that international organizations’ immunity track the im-
munity of foreign states, except where Congress speci-
fied a lower standard. See also 91 Cong. Rec. at 12,531
(explaining that “all of th{e Senate’s] amendments lim-
ited provisions that were unanimously passed by the
House”). Nothing in the legislative history suggests that
Congress intended for international organizations to have

21

greater immunity than that enjoyed by foreign states, as
would be the case under the court of appeals’ view.

4. Despite the text, structure, and history of Section
288a(b), the court of appeals reiterated its conclusion
from Atkinson v. Inter-American Development Bank,
156 F.3d 1335 (1998), that Section 288a grants interna-
tional organizations “complete immunity” from suit,
“unless it is waived or the President intervene[s].” Pet.
App. 6a. For that conclusion, the Atkinson court relied
on two observations, neither of which supports its inter-
pretation of Section 288a(b). See 156 F.3d at 1341.

a. First, the Atkinson court reasoned that, in au-
thorizing the President to “modify, condition, limit, and
even revoke” what the court believed was “the other-
wise absolute immunity of a designated organization,”
Congress created “an explicit mechanism for monitor-
ing the immunities of designated international organi-
zations.” 156 F.3d at 1341 (citing 22 U.S.C. 288). Ac-
cording to the court, Congress’s choice “to delegate to
the President the responsibility for updating the im-
munities of international organizations in the face of
changing circumstances” is incompatible with the view
that Congress intended international organizations’ im-
munity to track developments in foreign sovereign im-
munity. /bid. The court of appeals erred.

The IOLA authorizes the President to restrict the im-
munities provided to international organizations in two
ways: (1) it gives the President authority to “revoke the
designation of any international organization” if the
President determines that the international organiza-
tion has “abuse[d]” the privileges, exemptions, or im-
munities conferred by the IOIA or “for any other rea-
son”; and (2) it permits the President “to withhold or
withdraw from any [international] organization or its

22

officers or employees any of the privileges, exemptions,
and immunities provided for” by the IOIA, or to “condi-
tion or limit” such protections, “in the light of the func-
tions performed by any such international organiza-
tien.” 22 U.S.C. 288.

The statutory authority to revoke a specific organi-
zation’s status for abuse or other reason does not ad-
dress the immunity standard applicable to international
organizations generally. And the authority to modify
the immunities afforded to “any such organizations or
its officers or employees,” “in light of the functions per-
formed by any such organization,” is not inconsistent
with the prospect that the immunity afforded interna-
tional organizations, as a class, may be altered through
other means. As Judge Pillard observed (Pet. App.
13a), the President’s authority under Section 288 is
most naturally read as focusing on the need for discre-
tion to adjust a specific organization’s immunity, if the
extension of the full immunities provided by the statute
would be inappropriate in light of the specific purposes
of the organization. Indeed, that is how the President
has exercised his Section 288 authority in the past.° But
assuming that Section 288 would also permit the Presi-
dent to modify certain immunities afforded to interna-
tional organizations on a more categorical basis, the
provision’s focus on the functions performed and im-
munities enjoyed by specific organizations does not sug-
gest that Section 288 was intended to exclude all other

® See, e.g., EO 12,425, 48 Fed. Reg. 28,069 (1983) (recognizing the
International Criminal Police Organization as an international or-
ganization under the I[OIA, but limiting the privileges and immuni-
ties conferred by that designation); EO 11,718, 38 Fed. Reg. 12,797
(1973) (same for the International Telecommunications Satellite Or-
ganization).

23

means—including future legislation—of broadly alter-
ing the immunity principles applicable to foreign gov-
ernments and therefore to international organizations
generally.

b. Second, the Atkinson court found support for its
reading of Section 288a(b) in a passage from the Senate
Report ohserving that the authority given to the Presi-
dent in Section 288 would permit “the adjustment or
limitation of the privileges in the event that any inter-
natic .al organization should engage, for example, in ac-
tivities of a commercial nature.” 156 F.3d at 1341 (quot-
ing Senate Report 2). In the court’s view, that reference
indicated that the “concerns that motivated the State
Department to adopt the restrictive immunity ap-
proach” in the Tate Letter “(and Congress to codify
those principles in the FSIA in 1976) were apparently
taken into account by the 1945 Congress.” /bid.

The court’s reading of the legislative history, how-
ever, is mistaken. The Senate Report was responding
to a concern that particular organizations might abuse
the immunities provided by the bill. As Representative
Robertson explained, the amendment ensured that, “if
some organization starts functioning here and goes be-
yond the scope for which it was created, let us say [it]
starts into business over here,” Section 288 would allow
the President to appropriately respond. 91 Cong. Rec.
at 12,530; see ibid. (noting the “very hypothetical case”
that a foreign representative to the United Nations
“would open up a shipping business”); see also 91 Cong.
Ree. at 12,432 (explaining that the Senate’s amend-
ments, including authorizing the President to withdraw
immunities, were for the “purpose of safeguarding
against the possibility of abuse of privilege”). The leg-
islative history does not suggest that Section 288a was

24

intended to lock in the scope of immunity that organiza-
tions received as a general matter.

Moreover, even if Congress did expect Section 288 to
provide the President a mechanism for adjusting the
privileges and immunities of all international organiza-
tions in the event such organizations began to be formed
with the purpose of participating in commercial activi-
ties, that would not support the court of appeals’ inter-
pretation of Section 288a(b). As discussed above, there
is no indication from the text or legislative history that
Congress intended Section 288 to provide the sole
mechanism for addressing such developments. In any
event, preventing foreign sovereigns from claiming im-
munity for commercial activities was not the only moti-
vation for adopting the restrictive theory. See Tate Let-
ter, 425 U.S. at 714 (noting that the restrictive theory
was most consistent with the United States’ “subjecting
itself to suit in [U.S.] courts in both contract and tort”);
28 U.S.C. 1605(a)(1)-(6) (providing exceptions to juris-
dictional immunity unrelated to commercial activities,
e.g., for certain domestic torts).

B. The Conduct Of The Political Branches Following
Enactment Of The IOLA Supports Affording Interna-
tional Organizations The Jurisdictional Immunity
Currently Enjoyed By Foreign Sovereigns

The conduct of the Executive Branch under the IOIA
and subsequent congressional enactments further sup-
port the view that the standard set out in Section
288a(b) follows changes in foreign sovereign immunity
law. See Crosby v. National Foreign Trade Council,
530 U.S. 363, 385-386 (2000) (while this Court “do/es]
not unquestioningly defer to the legal judgments ex-
pressed in Executive Branch statements when” inter-

25

preting a federal statute, it has “consistently acknowl-
edged that the ‘nuances’ of ‘the foreign policy of the
United States ... are much more the province of the
Executive Branch and Congress than of this Court’”)
(citation omitted).

1. The cooperative process followed by the Execu-
tive Branch and Congress in recognizing immunity for
international organizations demonstrates that the polit-
ical Branches have long followed this interpretation of
the immunities afforded by Section 288a(b). The privi-
leges and immunities in the IOIA are typically provided
to international organizations through a three-part pro-
cess. The Executive Branch enters into an agreement
with one or more foreign governments to form an inter-
national organization. See, e.g., Articles of Agreement
of the International Development Association, entered
into force, Sept. 24, 1960, 11 U.S.T. 2284, T.1.A.S. No.
4607. Congress (or the Senate through its consent to a
treaty) authorizes participation by the United States in
the international organization. See, e.g., 22 U.S.C. 284
(authorizing the President “to accept membership” in
the International Development Association). And the
President issues an Executive Order recognizing the or-
ganization as an international organization within the
meaning of the IOIA, entitled to the protections that
Act affords. See, eg., EO 11,966, 42 Fed. Reg. 4331
(1977) (designating the International Development As-
sociation as a “public international organization entitled
to enjoy the privileges, exemptions, and immunities
conferred by the [IOLA]”).

Some agreements creating international organiza-
tions, however, require the member states to afford the
organization specific immunities beyond those express-
ly provided by the IOIA. The agreement establishing

26

the World Trade Organization (WTO), for example, re-
quires member states to afford it absolute immunity
from suit in their courts, unless waived by the WTO.
See Marrakesh Agreement Establishing the World
Trade Organization (WTO Agreement), art. VIII(4), en-
tered into force Jan. 1, 1995, 1867 U.N.T.S. 154 (requir-
ing members to provide the privileges and immunities
provided by the Convention on the Privileges and Im-
munities of the Specialized Agencies (Specialized Agen-
cies Convention), entered into force Dec. 2, 1948,
33 U.N.T.S. 261); Specialized Agencies Convention, art.
III, § 4 (affording UN specialized agencies “immunity
from every form of legal process,” unless waived).

For such organizations, mere designation under the
IOLA would not fulfill the United States’ international
commitment precisely because the IOLA does not confer
absolute immunity from suit. In those circumstances,
where the agreement was not a self-executing treaty,°
Congress has either (1) authorized the President to im-
plement the immunity provisions in the applicable
agreement, see, e.g., 19 U.S.C. 3511(b) (authorizing the
President to implement the WTO Agreement’s immun-
ity provisions); or (2) provided such immunity by sepa-
rate legislation, see, e.g., 22 U.S.C. 286h (giving “full
force and effect in the United States” to immunity pro-
visions of the Articles of Agreement of the IMF, entered
into force Dec. 27, 1945, 60 Stat. 1401, 2 U.N.'TS. 39).’

* A self-executing treaty is equivalent to an Act of Congress and
requires no legislation to make its provisions enforceable. See Me-
dellin v. Texas, 552 U.S. 491, 505 (2008).

’ Notably, the IFC Act gives “full force and effect in the United
States,” 22 U.S.C. 282g, to the section of the IFC’s Articles of
Agreement establishing the “position of the corporation with regard
to judicial process,” art. VI, § 3 (capitalization altered). But unlike

27

Such legislation ensures that, notwithstanding the
United States’ adoption of the restrictive theory or any
future developments in foreign sovereign immunity, the
United States fulfills its obligations to the international
organization. But, under the court of appeals’ interpreta-
tion of Section 288a, such legislation would be redundant.

2. The provision of privileges and immunities for the
Organization of American States (OAS) is similarly in-
structive. The OAS was formed in 1951 in its current
structure through a multilateral treaty that provided
that the organization would enjoy “such legal capacity,
privileges and immunities as are necessary for the ex-
ercise of its functions and the accomplishment of its pur-
poses.” Charter of the Organization of American States,
art. 103, entered into force, Dec. 13, 1951, 2 U.S.T. 2394,
T.LA.S. No. 2361. After the Charter was ratified by the
United States, the President designated the OAS as an
international organization “entitled to enjoy the privi-
leges, exemptions, and immunities conferred by the
[IOLA].” EO 10,533, 19 Fed. Reg. 3289 (1954).

Forty years later, the United States agreed to afford
the OAS more extensive immunity. In 1994, the Senate
gave its advice and consent to the ratification of the
Headquarters Agreement Between the Government of
the United States of America and the Organization
of American States, signed at Washington May 14,
1992, S. Treaty Doc. No. 40, 102d Cong., 2d Sess. (1992);

the agreement creating the IMF, the IFC’s Articles of Agreement
do not require absolute immunity from suit. Compare IMF Articles
of Agreement, art. [X, § 3 (stating that the IMF shall “enjoy immun-
ity from every form of judicial process,” unless waived), with IFC
Articles of Agreement, art. VI, § 3 (stating that “[ajctions may be
brought against the Corporation” in courts of member states in
which the IFC has a specified connection).

28

140 Cong. Rec. 28,361 (1994). In contrast to the OAS
Charter, the Headquarters Agreement provides the
OAS with absolute immunity from suit. See art. IV, § |
(“The Organization shall enjoy immunity from suit and
every form of judicial process [absent waiver].”).

Because the Headquarters Agreement was self-
executing, see S. Treaty Doc. No. 40, at II1, no Act of
Congress was needed to afford the OAS the absolute
immunity it now required. But in submitting the Head-
quarters Agreement to the President, the State Depart-
ment made clear that by affording the OAS “full immun-
ity from judicial process,” the agreement went “beyond
the usual United States practice of affording restrictive
immunity,” “[iJn exchange” for requiring the organiza-
tion to “‘make provision for appropriate modes of set-
tlement of those disputes for which jurisdiction would
exist against a foreign government under the Foreign
Sovereign Immunities Act.’” /d. at V1.

3. Indeed, the State Department has repeatedly ex-
pressed the same view about the scope of jurisdictional
immunity afforded to international organizations under
the [OIA since the United States’ adoption of the re-
strictive theory of foreign sovereign immunity. See
Letter from Roberts B. Owen, Legal Adviser, to Leroy
D. Clark, Gen. Counsel, Equal Emp’t Opportunity
Comm'n 2 (June 24, 1980) (“By virtue of the FSIA, and
unless otherwise specified in their constitutive agree-
ments, international organizations are now subject to
the jurisdiction of our courts in respect of their commer-
cial activities, while retaining immunity for their acts of
a public character.”); Letter from Detlev F. Vagts, Office
of the Legal Adviser, to Robert M. Carswell, Jr., OAS 2
(Mar. 24, 1977) (Vagts Letter) (stating that the IOLA

29

“links” the jurisdictional immunity of international or-
ganizations and that of foreign sovereigns), available at
D. Ct. Doe. No. 22-7, at 41-42 (Sept. 18, 2015); Pet. Br. 8-
9 (collecting additional Executive Branch statements).*

This longstanding interpretation—evinced by actions
of both political Branches—of the privileges and immuni-
ties afforded by the IOLA in order to fulfill the United
States’ international obligations deserves deference.

C. The Court of Appeals’ View Of International Organiza-

tion Immunity Would Present Practical Problems And
Is Not Required By Respondent's Policy Concerns

Adopting the court of appeals’ view of the jurisdic-
tional immunities afforded international organizations
under Section 288a(b) would present practical difficul-
ties and is not justified by the policy concerns asserted
by respondent.

1. As an initial matter, if Section 288a(b) were inter-
preted to incorporate the law of foreign sovereign im-
munity as it existed in 1945, courts would then need to
decide whether Congress intended to incorporate the
substantive rules of foreign sovereign immunity appli-
cable in 1945 or the procedural ones. As noted above, in
1945, federal courts followed a “two-step procedure” for
determining the immunity of a foreign state from a par-
ticular suit. Samantar v. Yousuf, 560 U.S. 305, 311
(2010). The foreign state first could ask the State De-
partment for a “suggestion of immunity.” /bid. (citation

* In a 2006 brief filed in the Second Circuit, the United States cited
Atkinson for the proposition that the IOLA provides absolute immun-
ity. U.S. Amicus Br. at 17 n.*, EM Lid v. Republic of Argentina, No.
06-403. The government's brief did not contain any independent anal-
ysis of Section 288a or the Executive Branch’s historical practice un-
der the IOLA, and does not reflect the United States’ longstanding

interpretation of the provision.

30

omitted). If the State Department obliged, “the district
court surrendered its jurisdiction.” /bid. Otherwise,
the court would generally “decide for itself whether all
the requisites for such immunity existed,” applying the
“established policy” of the State Department. /d. at
311-312 (citation omitted).

The court of appeals and respondent have both as-
sumed that, if Section 288a(b) incorporates foreign sov-
ereign immunity law as it existed in 1945, it incorpo-
rates only the substantive standards—the then-“estab-
lished policy,” Samantar, 560 U.S. at 312, of the State

nt—not the two-step procedure. See Atkin-
son, 156 F.3d at 1341; Br. in Opp. 14. But neither the
court nor respondent explains why that would be so. See
Vagts Letter | (indicating that the State Department ini-
tially filed suggestions of immunity for international or-
ganizations following the enactment of the IOLA).

Moreover, even if the static view of Section 288a(b)
would incorporate only the substantive standards that
prevailed in 1945, there could remain some uncertainty
in determining the contours. Section 288a(b) affords
“international organizations, their property and their
assets *** the same immunity from suit and every
form of judicial process as is enjoyed by foreign govern-
ments.” 22 U.S.C. 288a. Although the State Depart-
ment generally afforded “virtually absolute immunity”
from suit to foreign governments in 1945, Verlinden,
461 U.S. at 486, there was some uncertainty regarding
the immunity of state-owned merchant vessels. Com-
pare The Pesaro, 277 F . at 479 n.3 (noting the State De-
partment’s view that no immunity should be provided
“government-owned merchant vessels * * * employed
in commerce”), with Berizzi Bros. Co. v. Steamship Pe-
saro, 271 U.S. 562, 570 (1926) (affording immunity to the

31

same ship, despite the State Department’s views); cf.
Hoffman, 324 U.S. at 35 n.1 (criticizing without ex-
pressly overruling Berizzi Bros.). And the State De-
partment had also expressed the view that “agencies of
foreign governments engaged in ordinary commercial
transactions in the United States enjoyed no privileges
or immunities not appertaining to other foreign corpo-
rations, agencies, or individuals doing business here.”
United States v. Deutsches Kalisyndikat Gesellschaft,
31 F.2d 199, 200 (S.D.N.Y. 1929).

Under the court of appeals’ view, courts would there-
fore have to determine any disputed metes and bounds
of foreign sovereign immunity, as they existed in the
policies of the State Department and in federal courts
some 70 years in the past—and perhaps in circum-
stances that neither ever faced or that did not closely fit
the situation of a particular international organization.
Cf. Republic of Austria v. Altmann, 541 U.S. 677, 699
(2004) (refusing to adopt an interpretation of the FSIA
that would require courts, in some cases, “to follow the
same ambiguous and politically charged standards that
the FSIA replaced”) (internal quotation marks and ci-
tation omitted).

2. In their response to the certiorari petition, re-
spondent raised policy concerns about an interpretation
of Section 288a(b) under which an international organi-
zation’s immunity would conform to that of a foreign
state at the time of suit. “The role of this Court,” how-
ever, “is to apply the statute as it is written,” regardless
whether it thinks “some other approach might ‘accor{d|
with good policy.’"” Burrage v. United States, 571 U.S.
204, 218 (2014) (citation omitted; brackets in original).
In any event, respondent’s concerns are misplaced.

32

a. Respondent contends that such an interpretation
would be “inconsistent with the principles animating in-
ternational-organization immunity,” which, respondent
suggests, include that an individual member “‘ought not
be able to exercise power, through its national courts,
over the execution of the Organization’s functions’” that
are “‘determined *** collectively.’” Br. in Opp. 22
(citation omitted). But when member states determine
that the functions of an international organization re-
quire a particular level of immunity, they are free to
specify as much in the agreement establishing the or-
ganization—and they have done so. See pp. 25-28,
supra; see also, e.g., Agreement Establishing the Asian
Development Bank, art. 50, entered into force Aug. 22,
1996, 17 U.S.T. 1418, T.1.A.S. No. 6103 (providing Asian
Development Bank “immunity from every form of legal
process, except in cases arising out of or in connexion
with the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite
the sale of securities”); 22 U.S.C. 285g (giving “full force
and effect” to Article 50 “in the United States”). The
scope of the immunity afforded by the IOIA will have no
effect on the United States’ fulfillment of these interna-
tional obligations. See Bzrak v. United Nations, 597
F.3d 107, 112 (2d Cir.) (declining to determine the scope
of immunity afforded the United Nations under the
IOLA, because the Convention on Privileges and Im-
munities of the United Nations, entered into force Apr.
29, 1970, 21 U.S.T. 1418, T.L.A.S. No. 6900, directly
granted the UN absolute immunity), cert. denied, 562
U.S. 948 (2010).

b. Respondent also expresses concern (Br. in Opp.
22) that, under the restrictive theory of immunity,

33

“nearly all of the[| activities” of some international or-
ganizations might be subject to lawsuits in U.S. courts.
But the FSIA’s commercial-activity exception is not an
authorization of just any commercial suit. Rather, it im-
poses a number of requirements including, for example,
that the action be “based upon a commercial activity
carried on in the United States,” 28 U.S.C. 1605(a)(2)
(emphasis added). This Court has construed that lan-
guage to permit suit only when the “‘particular conduct’
that constitutes the ‘gravamen’ of the suit” is commer-
cial activity occurring in the United States. OBB Per-
sonenverkehr AG v. Sachs, 136 S. Ct. 390, 396 (2015) (ci-
tation omitted). When the gravamen of a complaint is
conduct that was either not of a commercial nature or
occurred abroad, the commercial-activity exception
does not apply, even if the suit is otherwise related to
the defendant’s domestic commercial activities. /d. at
396-397. Incorporating the FSIA standard of immunity
for international organizations is therefore unlikely to
open the floodgates of litigation, even against interna-
tional organizations, like the IFC, that “focus on finan-
cial transactions.” Br. in Opp. 22.

Moreover, international organizations can further
reduce their exposure to litigation in other ways by, for
example, clarifying whether commercial agreements
are intended to create third-party-beneficiary rights.
Cf. Pet. App. 9a & n.4 (noting that petitioners raise a
“third party beneficiary claim” based on environmental!
and social risks provisions in the loan agreement).
Other defenses, such as forum non conveniens, may
also be available. See Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981).

In any event, there is no indication that, when Con-
gress enacted the IOLA, such policy concerns led it to

34

provide international organizations greater immunity
from suit than that conferred on foreign states. To the
contrary, the legislative history is replete with state-
ments reflecting a commitment to put international or-
ganizations’ immunity on par with that afforded to for-
eign sovereigns. See, e.g., Senate Report 1 (“The basic
purpose of this title is to confer upon international or-
ganizations *** privileges and immunities of a gov-
ernmental nature.”); id. at 2 (“{[I]n cases where thie]
Government associates itself with one or more foreign
governments in an international organization, there ex-
ists at the present time no law * * * extend|ing] privi-
leges of a governmental character.”); id. at 4 (Section
288a extends to international organizations the privi-
leges and immunities “accorded foreign governments
under similar circumstances”). And Congress enacted
text precisely crafted to that purpose. Foreign govern-
ments engaged in commercial activities within the
United States are subject to suit in U.S. courts.
28 U.S.C. 1605(a)(2). That the IOLA leaves respondent
also subject to suit in similar circumstances is consis-
tent with Congress’s judgment in Section 288a(b).

35

CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

NOEL J. FRANCISCO
Solicitor General

EDWIN S. KNEEDLER
Deputy Solicitor General

JONATHAN Y. ELLIS
Assistant to the Solicitor
General

JENNIFER G. NEWSTEAD SHARON SWINGLE
Legal Adviser Lewis S. YELIN

Department of State Attorneys
JULY 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0808%3A09. Public record. Not legal advice.