Jam v. International Finance Corp. ( 2019 )


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  • (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
    Opinion of the Court
    ments” did not mean “virtually absolute immunity.” The
    phrase is not a term of art with substantive content, such
    as “fraud” or “forgery.” See 
    id., at 22
    ; Gilbert v. United
    States, 
    370 U. S. 650
    , 655 (1962). It is rather a concept
    that can be given scope and content only by reference to
    the rules governing foreign sovereign immunity. It is true
    that under the rules applicable in 1945, the extent of 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.
    

Document Info

Docket Number: 17-1011

Judges: John G. Roberts

Filed Date: 2/27/2019

Precedential Status: Precedential

Modified Date: 10/6/2023

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