No.

17-1011

IN THE
Supreme Court of the United States
____________________
BUDHA ISMAIL JAM, ET AL.,
Petitioners,
v.
INTERNATIONAL FINANCE CORPORATION,
Respondent.
____________________
On Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
____________________
BRIEF FOR PETITIONERS
____________________
RICHARD L. HERZ JEFFREY L. FISHER
MARCO B. SIMONS Counsel of Record
MICHELLE C. HARRISON PAMELA S. KARLAN
EARTHRIGHTS DAVID T. GOLDBERG
INTERNATIONAL STANFORD LAW SCHOOL
1612 K Street, N.W. SUPREME COURT
Suite 401 LITIGATION CLINIC
Washington, DC 20006 559 Nathan Abbott Way
Stanford, CA 94305
ANTON METLITSKY [email protected]
JENNIFER SOKOLER
SAMANTHA GOLDSTEIN
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
 i
QUESTION PRESENTED
Whether the International Organizations Im-
munities Act—which affords international organiza-
tions the “same immunity” from suit that foreign
governments have, 22 U.S.C. § 288a(b)—confers the
same immunity on such organizations as foreign
governments have under the Foreign Sovereign Im-
munities Act, 28 U.S.C. §§ 1602-11.
 ii
PARTIES TO THE PROCEEDING
Petitioners, plaintiffs below, are Budha Ismail
Jam, Kashubhai Abhrambhai Manjalia, Sidik
Kasam Jam, Ranubha Jadeja, Navinal Panchayat,
and Machimar Adhikar Sangharash Sangathan.
Respondent, defendant below, is the Internation-
al Finance Corporation.
.
 iii
TABLE OF CONTENTS

Page
OPINIONS BELOW .................................................. 1
JURISDICTION ........................................................ 1
RELEVANT STATUTORY PROVISIONS ............... 1
STATEMENT OF THE CASE .................................. 2
A. Legal Background .......................................... 2
1. International Organizations Immunities
Act ................................................................... 2
2. Immunity Of Foreign States........................... 6
3. Executive Branch Construction Of The
IOIA ................................................................ 8
B. Factual Background ..................................... 10
C. Procedural History ....................................... 11
SUMMARY OF ARGUMENT................................. 14
ARGUMENT ........................................................... 16
I. THE IOIA’S “SAME IMMUNITY”
PROVISION TRACKS THE CURRENT
LAW OF FOREIGN SOVEREIGN
IMMUNITY, WHICH IS GOVERNED BY
THE FSIA .......................................................... 17
A. The Text Of The “Same Immunity”
Provision Requires Tracking The
Current Law Of Sovereign Immunity ......... 17
B. The Statute’s Structure Reinforces That
It Incorporates The FSIA ............................. 26
 iv
TABLE OF CONTENTS
(continued)
Page

C. The IOIA’s Purpose And Drafting

History Confirm That The “Same
Immunity” Provision Incorporates The
Current Law Of Foreign Sovereign
Immunity ...................................................... 31
II. EVEN IF THE IOIA LOCKED IN THE
LAW OF FOREIGN SOVEREIGN
IMMUNITY AS OF 1945, THAT LAW
WOULD REQUIRE TRACKING THE
FSIA ................................................................... 37
A. The Immunity Rule For Foreign
Governments In 1945 Was Not
Absolute Immunity But Deference To
The Political Branches ................................. 37
B. Deference To The Political Branches
Would Require Application Of
The FSIA ....................................................... 40
CONCLUSION ........................................................ 43
 v
TABLE OF AUTHORITIES

Page(s)
Cases
Agency Holding Corp. v. Malley-Duff &
Assocs., Inc.,
483 U.S. 143 (1987) ..............................................20
Alfred Dunhill of London, Inc. v.
Republic of Cuba,
425 U.S. 682 (1976) ..........................................7, 40
In re Argyle-Lake Shore Bldg. Corp.,
78 F.2d 491 (7th Cir. 1935)..................................18
Atkinson v. Inter-Am. Dev. Bank,
156 F.3d 1335 (D.C. Cir. 1998) .................... passim
Atlantica Holdings, Inc. v. Sovereign
Wealth Fund Samruk-Kazyna JSC,
813 F.3d 98 (2d Cir. 2016) ...................................33
Batra v. State Bank of India,
2016 WL 3029957 (S.D.N.Y. May 25,
2016) .....................................................................33
Bell v. New Jersey,
461 U.S. 773 (1983) ..............................................36
Berizzi Bros. Co. v. The Pesaro,
271 U.S. 562 (1926) ........................................38, 39
Boise City v. Baxter,
238 P. 1029 (Idaho 1925) .....................................18
Broadbent v. Org. of Am. States,
628 F.2d 27 (D.C. Cir. 1980) ........................4, 8, 33
 vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Brzak v. United Nations,
597 F.3d 107 (2d Cir. 2010) ...................................3
Burnham v. United States,
400 F. App’x 190 (9th Cir. 2010) .........................20
Carcieri v. Salazar,
555 U.S. 379 (2009) ..............................................25
Carr v. United States,
560 U.S. 438 (2010) ........................................23, 24
Chickasaw Nation v. United States,
534 U.S. 84 (2001) ................................................36
Compania Espanola de Navegacion
Maritima, S.A. v. The Navemar,
303 U.S. 68 (1938) ................................................41
Corkery v. Hinkle,
217 P. 47 (Wash. 1923) ..................................18, 21
Culver v. People,
43 N.E. 812 (Ill. 1896)..........................................18
Devlin v. United States,
352 F.3d 525 (2d Cir. 2003) .................................20
Dole Food Co. v. Patrickson,
538 U.S. 468 (2003) ..............................................23
El Encanto, Inc. v. Hatch Chile Co.,
825 F.3d 1161 (10th Cir. 2016)......................18, 19
Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938) ................................................20
 vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Gaston v. Lamkin,
21 S.W. 1100 (Mo. 1893) ......................................18
George Williams Coll. v. Vill. of
Williams Bay,
7 N.W.2d 891 (Wis. 1943) ....................................18
In re Guenthoer’s Estate,
83 A. 617 (Pa. 1912) .............................................18
Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc.,
484 U.S. 49 (1987) ..........................................23, 26
Hardt v. Reliance Standard Life Ins.
Co.,
560 U.S. 242 (2010) ..............................................17
Hassett v. Welch,
303 U.S. 303 (1938) ..............................................18
In re Heath,
144 U.S. 92 (1892) ................................................18
Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) ..............................................22
Jones v. Dexter,
8 Fla. 276 (1859) ..................................................18
People ex rel. Kell v. Kramer,
160 N.E. 60 (Ill. 1928)..........................................18
Kendall v. United States ex rel. Stokes,
37 U.S. (1 Pet.) 524 (1838) ...................................18
 viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Kugler’s Appeal,
55 Pa. 123 (1867) ...........................................18, 22
Lamont v. Travelers Ins. Co.,
24 N.E.2d 81 (N.Y. 1939) .....................................41
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) ..............................................31
Nyambal v. Int’l Monetary Fund,
772 F.3d 277 (D.C. Cir. 2014) ................................3
OSS Nokalva, Inc. v. Eur. Space
Agency,
617 F.3d 756 (3d Cir. 2010) ......................... passim
Osseiran v. Int’l Fin. Corp.,
552 F.3d 836 (D.C. Cir. 2009) ..............................13
Panama R. Co. v. Johnson,
264 U.S. 375 (1924) ..............................................17
Republic of Austria v. Altmann,
541 U.S. 677 (2004) ...................................... passim
Republic of Iraq v. Beaty,
556 U.S. 848 (2009) ..............................................39
Republic of Mexico v. Hoffman,
324 U.S. 30 (1945) ................................ 6, 39, 40, 41
Ex parte Republic of Peru,
318 U.S. 578 (1943) .............................. 6, 38, 39, 40
Rubin v. Islamic Republic of Iran,
138 S. Ct. 816 (2018)............................................27
 ix
TABLE OF AUTHORITIES
(continued)
Page(s)
Runyon v. McCrary,
427 U.S. 160 (1976) ..............................................22
Russello v. United States,
464 U.S. 16 (1983) ................................................27
Samantar v. Yousuf,
560 U.S. 305 (2010) ...................................... passim
The Schooner Exch. v. McFaddon,
11 U.S. (7 Cranch) 116 (1812) .............................38
Stafford v. Briggs,
444 U.S. 527 (1980) ..............................................23
Star Athletica, L.L.C. v. Varsity Brands,
Inc.,
137 S. Ct. 1002 (2017)..........................................26
State v. Beckner,
198 N.W. 643 (Iowa 1924) ...................................18
Trammel v. United States,
445 U.S. 40 (1980) ..........................................36, 37
Ulen & Co. v. Bank Gospodarstwa
Krajowego (Nat’l Economic Bank),
24 N.Y.S.2d 201 (App. Div. 1940) ........................41
Underhill v. Hernandez,
168 U.S. 250 (1897) ..............................................38
United States v. Deutsches Kalisyndikat
Gesellschaft,
31 F.2d 199 (S.D.N.Y. 1929) ................................41
 x
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Kozminski,
487 U.S. 931 (1988) ..............................................19
United States v. Manahan Chem. Co.,
23 C.C.P.A. 332 (1936) ...................................18, 21
Verlinden B.V. v. Cent. Bank of Nigeria,
461 U.S. 480 (1983) ...................................... passim
Winchell v. U.S. Dep’t of Agric.,
961 F.2d 1442 (9th Cir. 1992)..............................20
Statutes
1 U.S.C. § 1 ................................................................24
22 U.S.C. § 288 .................................................. passim
22 U.S.C. § 288a ................................................ passim
22 U.S.C. § 288c ........................................................27
22 U.S.C. § 288d ............................................ 27, 28, 29
22 U.S.C. § 288f ...................................................28, 29
28 U.S.C. § 1254 ..........................................................1
28 U.S.C. § 1602 ..........................................................7
28 U.S.C. § 1603 ..................................................23, 34
28 U.S.C. § 1604 ..........................................................7
28 U.S.C. § 1605 ................................................7, 8, 12
28 U.S.C. § 1606 ..........................................................8
28 U.S.C. § 1607 ..........................................................7
28 U.S.C. § 1652 ........................................................20
 xi
TABLE OF AUTHORITIES
(continued)
Page(s)
28 U.S.C. § 2674 ........................................................20
30 U.S.C. § 242 ..........................................................25
42 U.S.C. § 1981 ........................................................22
42 U.S.C. § 1982 ........................................................22
N.C. Gen. Stat. § 4-1 .................................................25
Rules
Fed. R. Evid. 501 .......................................................37
Executive Materials
Exec. Order No. 11,059, 27 Fed. Reg.
10,405 (Oct. 23, 1962) ......................................3, 30
Exec. Order No. 11,718, 38 Fed. Reg.
12,797 (May 14, 1973)..........................................30
Exec. Order No. 12,359, 47 Fed. Reg.
17,791 (Apr. 22, 1982)..........................................30
Exec. Order No. 12,425, 48 Fed. Reg.
28,069 (June 16, 1983) .........................................30
Exec. Order No. 12,508, 50 Fed. Reg.
11,837 (Mar. 22, 1985) ...........................................3
Exec. Order No. 12,567, 51 Fed. Reg.
35,495 (Oct. 2, 1986) ..............................................3
Other Authorities
2B Sutherland Statutory Construction
(7th ed., West 2012) .............................................17
91 Cong. Rec. 12,432 (Dec. 20, 1945) ........................32
 xii
TABLE OF AUTHORITIES
(continued)
Page(s)
91 Cong. Rec. 12,530 (Dec. 21, 1945) ........................34
John W. Brabner-Smith, Incorporation
by Reference and Delegation of
Power—Validity of “Reference”
Legislation, 5 Geo. Wash. L. Rev.
198 (1937) .............................................................18
G.A. Endlich, A Commentary on the
Interpretation of Statutes (1888) ........................21
Ford W. Hall, The Common Law: An
Account of Its Reception in the
United States, 4 Vand. L. Rev. 791
(1951) ....................................................................25
H.R. 4489 (as introduced, Oct. 24, 1945)........ 5, 16, 36
H.R. 4489 (as reported by S. Comm. on
Fin., Dec. 18, 1945) ..............................................36
H.R. Rep. No. 79-1203 (1945) ...........................4, 5, 32
H.R. Rep. No. 105-802 (1998) ...................................36
Samuel P. Huntington, Transnational
Organizations in World Politics, 25
World Pol. 333 (1973) ............................................3
Int’l Fin. Corp., Annual Report 2017
(2017) ....................................................................10
Int’l Fin. Corp., Policy on
Environmental and Social
Sustainability (2012) ...........................................10
 xiii
TABLE OF AUTHORITIES
(continued)
Page(s)
Letter from Arnold Kanter, Acting Sec’y
of State, to President George H.W.
Bush (Sept. 12, 1992), in 1 Digest of
United States Practice in
International Law, 1991-1999 (Sally
J. Cummins & David P. Stewart
eds., 2005) ..............................................................9
Letter from Robert B. Owens, Legal
Adviser, U.S. Dep’t of State, to Leroy
D. Clark, Gen. Counsel, Equal Emp’t
Opportunity Comm’n (June 24,
1980), reprinted in Marian L. Nash,
Contemporary Practice of the United
States Relating to International
Law, 74 Am. J. Int’l L. 917 (1980) .........................9
Lawrence Preuss, The International
Organizations Immunities Act, 40
Am. J. Int’l L. 332 (1946) .......................................4
Horace Emerson Read, Is Referential
Legislation Worth While?, 25 Minn.
L. Rev. 261 (1941) ................................................18
Restatement (Third) of Foreign
Relations Law (1987) ...........................................32
S. Rep. No. 79-861 (1945) ...................... 4, 5, 32, 34, 35
 xiv
TABLE OF AUTHORITIES
(continued)
Page(s)
Letter from Harold D. Smith, Dir. of the
Bureau of the Budget, to James F.
Byrnes, U.S. Sec’y of State (Nov. 6,
1945), reprinted in H.R. Rep. No. 79-
1203 (1945) .............................................................4
Letter from Jack B. Tate, Acting Legal
Adviser, U.S. Dep’t of State, to Phil-
ip B. Perlman, Acting Att’y Gen.
(May 19, 1952), reprinted in Alfred
Dunhill of London, Inc. v. Republic
of Cuba, 425 U.S. 682 (1976) .................................7
The Oxford Handbook of International
Organizations (Jacob Katz Cogan, et
al. eds., 2016) ...................................................2, 32
G. Edward White, The Transformation
of the Constitutional Regime of
Foreign Relations, 85 Va. L. Rev. 1
(1999) ..............................................................23, 38
Aaron I. Young, Deconstructing
International Organization
Immunity, 44 Geo. J. Int’l L. 311
(2012) ....................................................................34
 1
BRIEF FOR PETITIONERS
Petitioners Budha Ismail Jam, et al., respectfully
request that this Court reverse the judgment of the
U.S. Court of Appeals for the D.C. Circuit.
OPINIONS BELOW
The decision of the court of appeals is reported at
860 F.3d 703 (D.C. Cir. 2017) and reprinted at Pet.
App. 1a-22a. The district court’s opinion granting
respondent’s motion to dismiss is reported at 172
F. Supp. 3d 104 (D.D.C. 2016) and reprinted at Pet.
App. 23a-38a.
JURISDICTION
The court of appeals issued its decision on June
23, 2017. Pet. App. 1a. The court denied rehearing
on September 26, 2017. Id. 39a. On December 11,
2017, the Chief Justice extended the time within
which to file a petition for a writ of certiorari to and
including January 25, 2018. The petition for a writ
of certiorari was filed on January 19, 2018 and
granted on May 21, 2018. This Court has jurisdic-
tion under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
The provision of the International Organizations
Immunities Act (IOIA) directly at issue here pro-
vides that designated international organizations
“shall enjoy the same immunity from suit and every
form of judicial process as is enjoyed by foreign gov-
ernments.” 22 U.S.C. § 288a(b).
The entirety of the IOIA is reproduced in the ap-
pendix to this brief.
 2
STATEMENT OF THE CASE
Petitioners sued an international organization,
the International Finance Corporation, alleging inju-
ries caused by its commercial activity. The Interna-
tional Organizations Immunities Act (IOIA) provides
that such organizations are entitled only to “the
same immunity” from suit that “is enjoyed by foreign
governments.” 22 U.S.C. § 288a(b). And for more
than sixty-five years (initially as a matter of execu-
tive policy, and since 1976 under the Foreign Sover-
eign Immunities Act (FSIA)), foreign states have not
enjoyed immunity for their commercial acts. Yet the
D.C. Circuit held that the IOIA requires dismissal of
this lawsuit. According to the court of appeals, in-
ternational organizations are entitled to “‘virtually
absolute immunity’”—a different and significantly
greater form of immunity than foreign governments
currently enjoy. Pet. App. 4a (quoting Atkinson v.
Inter-Am. Dev. Bank, 156 F.3d 1335, 1340 (D.C. Cir.
1998)).
The question presented is whether the D.C. Cir-
cuit’s construction of the IOIA’s “same immunity”
provision is correct.
A. Legal Background
1. International Organizations Immunities Act
a. Over the past several decades, the public and
commercial landscape has become populated with
dozens of “international organizations”—that is, pub-
lic organizations in which multiple countries are
members pursuant to treaties or similar foundation-
al laws. The Oxford Handbook of International Or-
ganizations, at v-vi (Jacob Katz Cogan, et al. eds.,
 3
2016); Samuel P. Huntington, Transnational Organ-
izations in World Politics, 25 World Pol. 333, 333
(1973). These organizations pursue a range of
ends—from providing health care to managing fish-
eries to financing private economic development.
Examples to which the United States belongs in-
clude the World Tourism Organization, see Exec. Or-
der No. 12,508, 50 Fed. Reg. 11,837 (Mar. 22, 1985);
the Great Lakes Fishery Commission, see Exec. Or-
der No. 11,059, 27 Fed. Reg. 10,405 (Oct. 23, 1962);
and the Inter-American Investment Corporation, see
Exec. Order No. 12,567, 51 Fed. Reg. 35,495 (Oct. 2,
1986); see also 22 U.S.C. § 288 app. (listing all desig-
nated organizations). Many international organiza-
tions are headquartered in the United States, and
some—such as the North American Development
Bank and the Border Environmental Cooperation
Commission—develop and finance projects on U.S.
soil.
The founding agreements of some international
organizations provide organization-specific privileges
and immunities. The charters of the United Nations
and the International Monetary Fund, for example,
give them absolute immunity from suit. See, e.g.,
Nyambal v. Int’l Monetary Fund, 772 F.3d 277, 281
(D.C. Cir. 2014); Brzak v. United Nations, 597 F.3d
107, 110-12 (2d Cir. 2010). Other organizations’
charters do not address such immunity. To the ex-
tent an organization’s founding agreement is silent
respecting immunity from suit—or any other privi-
lege or immunity—the IOIA establishes an array of
default rules.
 4
b. The IOIA was enacted in 1945. At the time,
U.S. law recognized the legal personhood of interna-
tional organizations, but it provided no jurisdictional
immunity for them or their personnel. S. Rep. No.
79-861, at 2 (1945); H.R. Rep. No. 79-1203, at 2
(1945); Lawrence Preuss, The International Organi-
zations Immunities Act, 40 Am. J. Int’l L. 332, 333
(1946). Indeed, the United States asserted that or-
ganizational immunity from suit had no basis in in-
ternational or U.S. law. See Preuss, 40 Am. J. Int’l
L. at 333. Consequently, international organizations
were vulnerable to suit in circumstances where their
constituent foreign governments would otherwise be
accorded immunity. S. Rep. No. 79-861, at 2; H.R.
Rep. No. 79-1203, at 2; Preuss, 40 Am. J. Int’l L. at
333-34.
The State Department and Congress determined
that this disparity was inconsistent with the United
States’ interest in treating international organiza-
tions like public entities. S. Rep. No. 79-861, at 2;
H.R. Rep. No. 79-1203, at 2. Accordingly, the State
Department proposed and Congress adopted the
IOIA. See Br. for the United States as Amicus Curi-
ae at 5, Broadbent v. Org. of Am. States, 628 F.2d 27
(D.C. Cir. 1980) (No. 78-1465) [hereinafter “U.S.
Broadbent Brief”].1 The “basic purpose” of the legis-
lation was “to confer upon international organiza-
tions, and officers and employees thereof, privileges

1 See also Letter from Harold D. Smith, Dir. of the Bureau

of the Budget, to James F. Byrnes, U.S. Sec’y of State (Nov. 6,
1945), reprinted in H.R. Rep. No. 79-1203, at 7 (describing
State Department’s role in drafting and advocating for IOIA).
 5
and immunities of a governmental nature.” S. Rep.
No. 79-861, at 1; accord H.R. Rep. No. 79-1203, at 1.
c. The IOIA applies to any “public international
organization in which the United States participates
. . . and which [has] been designated by the Presi-
dent through appropriate Executive order as being
entitled to enjoy the privileges, exemptions, and im-
munities provided in” the statute. 22 U.S.C. § 288.
With respect to protection from lawsuits, Con-
gress initially considered granting international or-
ganizations unqualified immunity. The House Bill
would have granted international organizations
“immunity from suit and every form of judicial pro-
cess.” H.R. 4489, 79th Cong. § 2(b) (as introduced,
Oct. 24, 1945). But the Senate set aside this lan-
guage, and Congress instead adopted a default rule
that ties international organization immunity direct-
ly to foreign sovereigns’ immunity. See Pet. App.
14a-15a (Pillard, J., concurring). The operative pro-
vision—22 U.S.C. § 288a(b)—provides that, absent
waiver of immunity, such organizations shall enjoy
“the same immunity” from suit that “is enjoyed by
foreign governments.”
The IOIA also contains a provision allowing the
President to limit any of the IOIA’s privileges, ex-
emptions, and immunities on an organization-by-
organization basis. That provision authorizes the
President to “withhold or withdraw from any such
organization or its officers or employees any of the
privileges, exemptions, and immunities provided for
in [the IOIA] or to condition or limit the enjoyment
by any such organization or its officers or employees
 6
of any such privilege, exemption, or immunity.” 22
U.S.C. § 288.
2. Immunity Of Foreign States
“The doctrine of foreign sovereign immunity de-
veloped as a matter of common law.” Samantar v.
Yousuf, 560 U.S. 305, 311 (2010). When the IOIA
was enacted in 1945, that common law doctrine had
recently transitioned from a substantive regime into
a rule of deference. That is, courts at that time “‘de-
ferred to the decisions of the political branches—in
particular, those of the Executive Branch—on
whether to take jurisdiction’ over particular actions
against foreign sovereigns.” Republic of Austria v.
Altmann, 541 U.S. 677, 689 (2004) (quoting Verlin-
den B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486
(1983)).
Under this system, when the State Department
requested (or a clear executive policy dictated) im-
munity, courts would grant it. Samantar, 560 U.S.
at 311-12 (citing Ex parte Republic of Peru, 318 U.S.
578, 588 (1943)). But sometimes no political actor
had expressed a case-specific preference or pro-
nounced a rule for courts to apply. In those circum-
stances, courts themselves made case-by-case de-
terminations according to their best perceptions of
political branch policy. See, e.g., Republic of Mexico
v. Hoffman, 324 U.S. 30, 36-38 (1945) (denying im-
munity where foreign sovereign owned, but was not
in possession of, a vessel being used for commercial
purposes).
Shortly after the IOIA was enacted, the political
branches adopted a broad substantive policy provid-
 7
ing considerably more guidance. In a 1952 letter
written by State Department Acting Legal Adviser
Jack B. Tate (the “Tate Letter”), the United States
announced that the Executive Branch endorsed what
is widely known as the “restrictive theory” of sover-
eign immunity. Under this conception, foreign sov-
ereigns are immune from suit based on public acts,
but not based on commercial activities. See Verlin-
den, 461 U.S. at 487 (citing Letter from Jack B. Tate,
Acting Legal Adviser, U.S. Dep’t of State, to Philip
B. Perlman, Acting Att’y Gen. (May 19, 1952), re-
printed in Alfred Dunhill of London, Inc. v. Republic
of Cuba, 425 U.S. 682, 711-15 (1976) (App. 2 to opin-
ion of the Court)). The Executive Branch retained
the authority to file suggestions of immunity even
“‘where immunity would not have been available un-
der the restrictive theory.’” Altmann, 541 U.S. at
690 (quoting Verlinden, 461 U.S. at 487-88). But ab-
sent such a suggestion, courts applied the rules ar-
ticulated in the Tate Letter. Id.
In 1976, Congress enacted the FSIA. The Act
“‘codifie[d], as a matter of federal law, the restrictive
theory of sovereign immunity’” and “transfer[red]
primary responsibility for immunity determinations
from the Executive to the Judicial Branch.” Alt-
mann, 541 U.S. at 691 (quoting Verlinden, 461 U.S.
at 488); see 28 U.S.C. § 1602. The FSIA provides
that a “foreign state is normally immune from the
jurisdiction of federal and state courts, 28 U.S.C.
§ 1604, subject to a set of exceptions specified in
[Sections] 1605 and 1607.” Verlinden, 461 U.S. at
488. Those exceptions include actions based upon
“commercial activity” of the foreign sovereign “car-
 8
ried on in the United States” or “caus[ing] a direct
effect in the United States.” 28 U.S.C. § 1605(a)(2).
“When one of these or the other specified exceptions
applies, ‘the foreign state shall be liable in the same
manner and to the same extent as a private individ-
ual under like circumstances.’” Verlinden, 461 U.S.
at 488-89 (quoting 28 U.S.C. § 1606).
3. Executive Branch Construction Of The IOIA
The Executive Branch’s longstanding, “consid-
ered view” is that the scope of international organi-
zation immunity from suit “under the IOIA [is] not
frozen as of 1945, but follows developments in the
law of foreign sovereign immunity.” Pet. App. 15a
(Pillard, J., concurring).
Before the FSIA, when the Tate Letter controlled,
the State Department retained the ability to make
suggestions of immunity for international organiza-
tions. See D. Ct. Dkt. 22-7, Herz Decl., Ex. 11, Letter
from Detlev F. Vagts, Off. of the Legal Adviser, U.S.
Dep’t of State, to Robert M. Carswell, Jr., Org. of
Am. States, at 1-2 (Mar. 24, 1977). But the year af-
ter the FSIA was enacted, the State Department
concluded that such suggestions were no longer ap-
propriate because the IOIA “links” its immunity
rules to the FSIA. Id. Shortly thereafter, the Gov-
ernment explained to the D.C. Circuit that the “ex-
press language and the statutory purposes underly-
ing the [IOIA] bring international organizations
within the terms of the [FSIA].” U.S. Broadbent
Brief, supra, at 8-9 (quotation omitted); see also
Broadbent, 628 F.2d at 31 (acknowledging this view).
Any argument to the contrary, the Government
 9
maintained, was “devoid of substance.” U.S. Broad-
bent Brief, supra, at 8-9.
The Government has reiterated this position nu-
merous times, across multiple administrations. In
1980, the State Department Legal Adviser ex-
plained: “By virtue of the FSIA, . . . international or-
ganizations are now subject to the jurisdiction of our
courts in respect of their commercial activities . . . .”
Letter from Robert B. Owens, Legal Adviser, U.S.
Dep’t of State, to Leroy D. Clark, Gen. Counsel,
Equal Emp’t Opportunity Comm’n (June 24, 1980),
reprinted in Marian L. Nash, Contemporary Practice
of the United States Relating to International Law,
74 Am. J. Int’l L. 917, 918 (1980). In 1992, the De-
partment stated that the United States typically “af-
ford[s]” only “restrictive immunity” to international
organizations. Letter from Arnold Kanter, Acting
Sec’y of State, to President George H.W. Bush (Sept.
12, 1992), in 1 Digest of United States Practice in
International Law, 1991-1999, at 1016 (Sally J.
Cummins & David P. Stewart eds., 2005),
http://bit.ly/2EKesoE. And in 1997, the United
States twice filed appellate briefs maintaining that
international organizations’ immunity from suit
tracks that of foreign states under the FSIA.2

2 See Br. for the United States as Amicus Curiae at *5 n.3,

Taiwan v. U.S. Dist. Ct. for the N. Dist. of Cal., 1997 WL
33555046 (9th Cir. May 28, 1997) (No. 97-70375) (“The [IOIA]
provides that international organizations have the same im-
munity from suit as foreign governments, and the immunity of
foreign governments is, in turn, defined by the FSIA.” (citation
omitted)); Br. for the United States as Amicus Curiae at *14,
Corrinet v. United Nations, 1997 WL 33702375 (9th Cir. Mar.
 10
B. Factual Background
This case arises out of a commercial development
project financed by respondent, the International Fi-
nance Corporation (IFC or “the Corporation”). The
IFC was established and designated as an interna-
tional organization in 1956. It is headquartered in
the District of Columbia, where its directors sit and
nearly half of its more than 3,800 employees work.
IFC, Annual Report 2017, at 84, 86 (2017). Its pur-
pose is “to further economic development” and “fight
poverty” around the world. Pet. App. 3a, 24a; IFC,
Policy on Environmental and Social Sustainability 2
(2012), http://bit.ly/2mJbbiR. To carry out this mis-
sion, the Corporation provides loans to private busi-
nesses for projects in developing countries that oth-
erwise could not attract private capital. Pet. App.
3a, 24a.
In 2008, the IFC’s directors approved a loan of
$450 million to Coastal Gujarat Power Limited
(CGPL), to help finance the construction of the Tata
Mundra Ultra Mega, a coal-fired power plant in Gu-
jarat, India. Pet. App. 3a, 23a-25a. The project en-
tailed significant social and environmental risks.
Consequently, the IFC retained “supervisory author-
ity” over the venture, and the loan agreement ex-
pressly conditioned ongoing disbursements on
CGPL’s compliance with various conditions. Id. 3a.

12, 1997) (No. 96-17130) (“Since Section 2 of the [IOIA] grants

international organizations the same immunities as ‘foreign
governments,’ the FSIA in effect defines the immunities that
international organizations as institutions enjoy under the
IOIA.” (citations omitted)).
 11
In particular, the loan agreement included an
Environmental and Social Action Plan designed to
ensure that the plant complied with the IFC’s per-
formance standards and to mitigate potential harms.
Pet. App. 3a, 24a-25a. The loan agreement required
quarterly reporting on compliance issues, including
any remedial steps, “in form and substance satisfac-
tory to the” IFC. D. Ct. Dkt. 10-6, Suratgar Decl.,
Ex. 1, Part 2, at 41. The IFC also retained authority
to actively manage the project and to require correc-
tive action, including changing CGPL’s board of di-
rectors and senior management. Id. at 18-19, 21.
Finally, the agreement gave IFC the power to “re-
voke financial support for the project” should CGPL
fail to live up to its obligations. Pet. App. 3a.
The IFC, however, “inadequate[ly] supervis[ed]
. . . the project,” and “the plant’s construction and
operation did not comply with the Plan.” Pet. App.
3a. As a result, the very risks that the Corporation
anticipated occurred. The plant has had—and con-
tinues to have—a “devastat[ing]” environmental and
social impact on the community in which it was
built. Id. 2a & n.1. Yet the IFC has taken no mean-
ingful steps to address the situation. See id. 3a.
C. Procedural History
1. Petitioners are farmers and fishermen who
have been harmed by the power plant, a local fish-
erman’s association, and a nearby village. Pet. App.
2a, 25a-26a. In 2015, they sued the IFC in the U.S.
District Court for the District of Columbia, alleging
various common law claims, including negligent su-
pervision and breach of contract. Id. 28a.
 12
The IFC moved to dismiss the complaint, arguing
(as relevant here) that the IOIA bars the suit. Pet.
App. 28a. Petitioners responded that the IOIA’s
“same immunity” provision grants international or-
ganizations the same immunity—and nothing
more—than the FSIA grants foreign states. And
under the FSIA, foreign states are amenable to suit
for “commercial activities” performed in or relating
to the United States, such as the financing actions
and supervisory duties at issue. See id. 3a-5a; 28
U.S.C. § 1605(a)(2).
The district court granted the IFC’s motion. The
court observed that in Atkinson v. Inter-American
Development Bank, 156 F.3d 1335 (D.C. Cir. 1998),
the D.C. Circuit had held that (i) the IOIA incorpo-
rates the law of foreign sovereign immunity only as
it existed in 1945, and (ii) at that time, foreign sov-
ereigns were entitled to “absolute” immunity. Pet.
App. 33a, 37a-38a (citing Atkinson, 156 F.3d at
1340). The district court acknowledged that the
Third Circuit has rejected Atkinson, concluding that
the IOIA “incorporate[s] subsequent changes in the
law of foreign sovereign immunity (like the Foreign
Sovereign Immunity Act’s commercial activity excep-
tion).” Id. 37a (citing OSS Nokalva, Inc. v. Eur.
Space Agency, 617 F.3d 756 (3d Cir. 2010)). But the
district court was without authority to deviate from
controlling precedent in its own circuit. Id. 38a.
The district court also concluded that the IFC
had not waived its immunity. Although the IFC’s
founding charter contains “broad language” provid-
ing that the organization may be sued, D.C. Circuit
precedent construes such waivers to be operative on-
 13
ly insofar as a court believes the particular type of
lawsuit “‘would benefit the organization over the
long term.’” Pet. App. 31a-32a (quoting Osseiran v.
Int’l Fin. Corp., 552 F.3d 836, 840 (D.C. Cir. 2009)).
The district court found that test unsatisfied here.
Id. 36a-38a.
2. The D.C. Circuit affirmed, declaring that its
Atkinson decision stood “as an impassable barrier” to
petitioners’ suit. Pet. App. 7a. The panel majority
acknowledged that, in the years leading up to 1945,
courts merely “‘‘deferred to the decisions of the polit-
ical branches’’” on questions of foreign sovereign
immunity, rather than automatically affording abso-
lute immunity. Id. 6a (quoting Altmann, 541 U.S. at
689 (quoting in turn Verlinden, 461 U.S. at 486)).
But the panel stressed that “the holding of Atkin-
son—regardless how one characterizes the immunity
of foreign sovereigns in 1945—was that internation-
al organizations [a]re given complete immunity by
the IOIA.” Id.
The D.C. Circuit also concluded that the IFC had
not waived its immunity. The panel majority con-
ceded that petitioners’ claims would “in some sense
. . . ‘benefit’” the IFC because allowing the claims to
go forward would assure communities considering
future projects that the Corporation can be held ac-
countable for causing harms. Pet. App. 8a, 10a-11a.
But, being “obliged to apply” its waiver test to pre-
clude at least some claims that the FSIA’s commer-
cial activity exception would allow, the court of ap-
peals held that the IFC’s waiver did not encompass
petitioners’ claims. Id. 8a, 11a.
 14
Judge Pillard wrote separately to say that were
the panel “not bound by Atkinson, [she] would
hold”—like the Third Circuit—“that international
organizations’ immunity under the IOIA is the same
as the immunity enjoyed by foreign states.” Pet.
App. 16a. Judge Pillard explained that, “[w]hen a
statute incorporates existing law by reference,” as
the IOIA does, “the incorporation is generally treat-
ed as dynamic, not static: As the incorporated law
develops, its role in the referring statute keeps up.”
Id. 12a. And that canon, Judge Pillard concluded,
“makes sense” here. Id. 16a. “Neither the IOIA nor
[the D.C. Circuit’s] cases interpreting it explain why
nations that collectively breach contracts or other-
wise act unlawfully through organizations should
enjoy immunity in our courts when the same conduct
would not be immunized if directly committed by a
nation acting on its own.” Id.
Judge Pillard also registered her disapproval of
the D.C. Circuit’s waiver jurisprudence. Rather than
establishing an absolute immunity rule and then
creating case-by-case exceptions according to an
“amorphous” waiver-curbing doctrine, she main-
tained it would be far better to consider assertions of
immunity using the “time-tested body of law under
the FSIA.” Pet. App. 21a.
SUMMARY OF ARGUMENT
The D.C. Circuit is incorrect that the IOIA gives
international organizations absolute immunity from
suit. Rather, by its plain terms, the IOIA tracks the
rules established in the FSIA.
 15
I. The IOIA gives international organizations “the
same immunity” from suit “as is enjoyed by foreign
governments.” 22 U.S.C. § 288a(b). Under the time-
honored reference canon, a statutory directive to ap-
ply another general body of law dictates that the
statute incorporates that body of law as it exists at
the time of suit. And the current law of foreign sov-
ereign immunity is governed by the FSIA. The
IOIA’s use of the present tense—“as is enjoyed”—
reinforces that analysis, for a statute expressed in
that tense must be applied as of the time of suit.
The IOIA’s structure, purpose, and drafting his-
tory confirm what the plain text of the “same im-
munity” provision requires. Various subsections of
the Act give international organizations and their
officers complete immunity from certain actions.
Other subsections expressly distinguish internation-
al organizations’ privileges or exemptions from those
of foreign states. But the provision dealing with or-
ganizational immunity from suit does neither. Con-
gress’s decision to take a different tack in that con-
text demonstrates its desire to eschew either abso-
lute protection or differential treatment. And that
legislative determination makes perfect sense. In-
ternational organizations are compilations of sover-
eigns, so the rules governing the latter’s amenability
to suit ought to govern the former’s. Put another
way, foreign states should not be able to evade legal
accountability for private endeavors, such as com-
mercial activities, simply by pursuing them through
international organizations.
Lest there be any doubt, the Congress that enact-
ed the IOIA specifically considered and rejected pro-
 16
posed language that would have given international
organizations complete immunity from suit. The
House version of the Act would have afforded inter-
national organizations “immunity from suit and eve-
ry form of judicial process.” H.R. 4489, 79th Cong.
§ 2(b) (as introduced, Oct. 24, 1945). Yet the Senate
rejected that proposal in favor of the “same immuni-
ty” language ultimately enacted. The D.C. Circuit
erred in reading into the IOIA the very rule Con-
gress set aside.
II. Even if the court of appeals were correct that
the IOIA locks in the approach to foreign sovereign
immunity that prevailed in 1945, when the IOIA was
enacted, that interpretation would still lead right
back to the FSIA. As this Court has repeatedly rec-
ognized, the rule in 1945 was that courts deferred to
the political branches’ current views regarding
whether foreign states were entitled to immunity.
And for decades, the political branches have consist-
ently endorsed the restrictive theory of sovereign
immunity that the FSIA codifies. Accordingly, the
law of 1945—if it applied here—would require this
Court to apply the FSIA.
ARGUMENT
The IOIA’s “same immunity” provision does not
place international organizations uniquely beyond
the reach of the law. Instead, it incorporates the
current law of foreign sovereign immunity, which is
governed by the FSIA.
 17
I. THE IOIA’S “SAME IMMUNITY” PROVI-
SION TRACKS THE CURRENT LAW OF
FOREIGN SOVEREIGN IMMUNITY, WHICH
IS GOVERNED BY THE FSIA
A. The Text Of The “Same Immunity” Provi-
sion Requires Tracking The Current Law
Of Sovereign Immunity
The Court “must enforce plain and unambiguous
statutory language according to its terms.” Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 251
(2010). The IOIA affords international organizations
only the “same immunity . . . as is enjoyed by” for-
eign governments. 22 U.S.C. § 288a(b). That text
incorporates the law of foreign sovereign immunity
as currently codified in the FSIA.
1. Congress frequently drafts statutes that refer
to another body of law. And under the “reference
canon,” statutes that “refer[] to the law on a subject
generally” are “construed to [incorporate] the law . . .
as it reads thereafter at any given time including
amendments subsequent to the time of adoption.”
2B Sutherland Statutory Construction § 51:7 (7th
ed., West 2012) (quotation omitted). Only when a
statute “refers specifically to a particular statute”
does it exclude subsequent amendments. Id.
The reference canon was established long before
the IOIA was enacted. In 1924, for instance, this
Court explained that “adopt[ion] by a generic refer-
ence” was a “recognized mode” of statutorily latching
one body of law to another, thereby allowing the
statute to incorporate “new rules” in the referenced
body of law as they come into being. Panama R. Co.
 18
v. Johnson, 264 U.S. 375, 391-92 (1924); see also
Hassett v. Welch, 303 U.S. 303, 314 (1938) (recogniz-
ing the canon); In re Heath, 144 U.S. 92, 93-94 (1892)
(same); Kendall v. United States ex rel. Stokes, 37
U.S. (1 Pet.) 524, 622-25 (1838) (same). By 1945, a
multitude of lower federal courts, state courts, and
commentators had recognized the reference canon as
well.3
The canon also makes eminent sense. As Justice
Gorsuch explained shortly before joining this Court,
when a statute refers to a general body of law, its
ordinary meaning directs people to that law as it ex-
ists “on any given day, today included.” El Encanto,
Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th
Cir. 2016). Indeed, as years and decades pass from
the statute’s original enactment, it would become in-
creasingly irrational to require lawyers and judges—
not to mention lay persons—“to become experts in

3 For lower federal courts, see, e.g., In re Argyle-Lake Shore

Bldg. Corp., 78 F.2d 491, 494 (7th Cir. 1935); United States v.
Manahan Chem. Co., 23 C.C.P.A. 332, 333-36 (1936). For state
courts, see, e.g., George Williams Coll. v. Vill. of Williams Bay, 7
N.W.2d 891, 894-95 (Wis. 1943); People ex rel. Kell v. Kramer,
160 N.E. 60, 67-68 (Ill. 1928); Boise City v. Baxter, 238 P. 1029,
1033 (Idaho 1925); State v. Beckner, 198 N.W. 643, 644 (Iowa
1924); Corkery v. Hinkle, 217 P. 47, 49 (Wash. 1923); In re
Guenthoer’s Estate, 83 A. 617, 618-19 (Pa. 1912); Culver v. Peo-
ple, 43 N.E. 812, 814-15 (Ill. 1896); Gaston v. Lamkin, 21 S.W.
1100, 1103-04 (Mo. 1893); Kugler’s Appeal, 55 Pa. 123, 124-25
(1867); Jones v. Dexter, 8 Fla. 276, 288-89 (1859). For commen-
tators, see, e.g., Horace Emerson Read, Is Referential Legisla-
tion Worth While?, 25 Minn. L. Rev. 261, 273 (1941); John W.
Brabner-Smith, Incorporation by Reference and Delegation of
Power—Validity of “Reference” Legislation, 5 Geo. Wash. L.
Rev. 198, 203 (1937).
 19
the vestigial esoterica” of bygone legal eras. Id. By
tethering the law governing one matter to the gen-
eral law governing another, Congress uses an effec-
tive shorthand that enables the referential statute to
update itself according to evolving developments and
necessities.
Section 288a(b) is a textbook general reference
statute. It refers to a body of law generally—viz.,
the law governing “immunity from suit . . . enjoyed
by foreign governments,” 22 U.S.C. § 288a(b)—not to
any identifiable statutory provision. The plain text
of the statute thus “incorporate[s] by reference a
large body of potentially evolving federal law.” Unit-
ed States v. Kozminski, 487 U.S. 931, 941 (1988); see
also El Encanto, 825 F.3d at 1164 (the “plain lan-
guage” of a statute referencing the Federal Rules of
Civil Procedure as a whole required application of
the Rules as they existed at the time of suit, not at
the time of the statute’s enactment).
Two aspects of the IOIA’s “same immunity” pro-
vision make its dynamic incorporation of foreign sov-
ereign immunity law particularly apparent.
First, when the IOIA was enacted, there was no
specific foreign sovereign immunity statute to which
Congress could have referred. Rather, “[t]he doc-
trine of foreign sovereign immunity” was “a matter
of common law.” Samantar v. Yousuf, 560 U.S. 305,
311 (2010). Common law, of course, is inherently
evolving. No legislator referring to a general body of
common law could reasonably think he or she is
freezing a rule in place for all time.
 20
That is why courts of appeals routinely construe
federal statutes referencing state common law as in-
corporating that law on an evolving basis. For in-
stance, the Federal Tort Claims Act (FTCA) provides
that “[t]he United States shall be liable [in tort] . . .
in the same manner and to the same extent as a pri-
vate individual under like circumstances.” 28 U.S.C.
§ 2674. Courts have made clear that this provision
incorporates state tort law as it currently stands.
See, e.g., Burnham v. United States, 400 F. App’x
190, 191-92 (9th Cir. 2010); Winchell v. U.S. Dep’t of
Agric., 961 F.2d 1442, 1443-45 (9th Cir. 1992); see
also Devlin v. United States, 352 F.3d 525, 530-32
(2d Cir. 2003) (FTCA provision making United
States liable “in accordance with the law of the place
where the act or omission occurred” ties Govern-
ment’s liability to the “evolving tort law of the sever-
al states”).
Similarly, it would be absurd to construe the
Rules of Decision Act, which provides that “[t]he
laws of the several states . . . shall be regarded as
rules of decision in civil actions in the courts of the
United States, in cases where they apply,” 28 U.S.C.
§ 1652, to require federal courts sitting in diversity
to adjudicate cases based upon the common law
rules extant when that statute was enacted in 1789.
To the contrary, “the Act require[s] application of fu-
ture state laws” too. Agency Holding Corp. v. Mal-
ley-Duff & Assocs., Inc., 483 U.S. 143, 163 (1987)
(Scalia, J., concurring in the judgment); see generally
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
There is no basis to read the IOIA’s “same im-
munity” provision differently. That provision’s gen-
 21
eral reference to the law governing “immunity from
suit . . . enjoyed by foreign governments” can be read
only to incorporate the evolving body of foreign sov-
ereign immunity law, not to freeze in the particulars
of that law that existed in 1945. That is all the more
true because the common law of foreign sovereign
immunity itself was in a period of recalibration at
the time, having shifted from a regime in which
courts made their own policy assessments to one in
which the Executive’s views had primacy. See G.
Edward White, The Transformation of the Constitu-
tional Regime of Foreign Relations, 85 Va. L. Rev. 1,
134-45 (1999) (summarizing shift). Congress thus
would have been acutely aware both that the com-
mon law of sovereign immunity itself was prone to
change, and that the then-extant rule of deference
would itself produce changing results as the political
branches’ foreign policy evolved.
Second, the word “same” in the IOIA’s “same im-
munity” provision reinforces that the scope of inter-
national organization immunity continually tracks
that of foreign sovereign immunity. As numerous
authorities recognized before the passage of the
IOIA, a statute that treats one thing “the same as”
another is “intended ‘as a rule for future conduct . . .
always to be found, when it is needed[,] by reference
to the law . . . existing at the time when the rule is
invoked.’” Corkery, 217 P. at 49 (third alteration in
original) (quoting G.A. Endlich, A Commentary on
the Interpretation of Statutes § 483 (1888)).4 Con-

4 See also Manahan Chem. Co., 23 C.C.P.A. at 333-36 (stat-

ute giving import appraisal authorities “the same jurisdiction,
powers, and duties . . . as in the case of appeals and protests
 22
gress’s declaration that two forms of protection are
“the same” reflects a determination that they are by
nature equivalent, and should move together.
For example, Congress used a nearly identical
formulation in the Civil Rights Act of 1866, which
Congress enacted to put black and white citizens on
equal footing after the Civil War. Runyon v.
McCrary, 427 U.S. 160, 170 (1976). That statute
provides that “[a]ll persons within the jurisdiction of
the United States shall have the same right . . . to
make and enforce contracts, to sue, be parties, give
evidence, . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a) (emphasis added); see also id.
§ 1982 (“All citizens of the United States shall have
the same right . . . as is enjoyed by white citizens . . .
to inherit, purchase, lease, sell, hold, and convey real
and personal property.”). Congress obviously did not
mean to guarantee black citizens nothing more than
the rights that whites enjoyed in 1866. Jones v. Al-
fred H. Mayer Co., 392 U.S. 409, 429 (1968). Rather,
the statute mandates continuing legal equality be-
tween citizens.
So too here. Congress determined that for pur-
poses of immunity from suit, international organiza-
tions and foreign governments should be treated “the
same.” That is an unambiguous directive that inter-

relating to customs duties under existing law” referred to law

in force when merchandise was imported, not when statute was
enacted); Kugler’s Appeal, 55 Pa. at 124-25 (statute providing
that proceeding for alteration of election district boundaries
“shall be the same as in the erection or alteration of the lines of
townships” referred to township division law existing when rule
was invoked).
 23
national organizations and foreign sovereigns should
be treated equally for such immunity purposes, to-
day as in 1945.
2. That conclusion is confirmed by the fact that
the IOIA is written in the present tense: Interna-
tional organizations are afforded the same immunity
“as is enjoyed” by foreign governments. 22 U.S.C.
§ 288a(b) (emphasis added). This Court has “fre-
quently looked to Congress’ choice of verb tense to
ascertain a statute’s temporal reach.” Carr v. United
States, 560 U.S. 438, 448 (2010). Where, as here, a
statute is “expressed in the present tense,” its “plain
text” requires applying the law “at the time suit is
filed.” Dole Food Co. v. Patrickson, 538 U.S. 468, 478
(2003).
In Dole Food, for instance, the Court construed
the FSIA’s requirement that an entity seeking to
remove a lawsuit to federal court show that “‘a ma-
jority of [its] shares . . . is owned by a foreign state.’”
538 U.S. at 473 (emphasis added) (quoting 28 U.S.C.
§ 1603(b)(2)). The Court held that “because it is ex-
pressed in the present tense,” the provision “requires
that instrumentality status be determined at the
time suit is filed.” Id. at 478. Similarly, in Stafford
v. Briggs, 444 U.S. 527 (1980), the Court held that,
given its use of the word “is,” the expanded venue
provided by the Mandamus and Venue Act of 1962
applies only to actions in which the officer was act-
ing in his official capacity or under color of legal au-
thority at the time of suit. Id. at 535-36; see also,
e.g., Carr, 560 U.S. at 449 (adopting a “forward-
looking construction of ‘travels’”); Gwaltney of Smith-
field, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
 24
49, 59 (1987) (Clean Water Act citizen-suit provi-
sion’s “pervasive use of the present tense” was a
“striking indic[ator]” of its “prospective orientation”).
Indeed, the U.S. Code itself codifies the present-
tense principle. The Dictionary Act commands that
“[i]n determining the meaning of any Act of Con-
gress, unless the context indicates otherwise . . .
words used in the present tense include the future as
well as the present.” 1 U.S.C. § 1. “By implication,
then, the Dictionary Act instructs that the present
tense generally does not include the past.” Carr, 560
U.S. at 448 (emphasis added).
Applying the present-tense principle to Section
288a(b)’s phrase “as is enjoyed” makes clear that in-
ternational organizations have the same immunity
that foreign governments enjoy today, not the im-
munity they enjoyed when the IOIA was enacted.
3. Had Congress meant to deviate from the refer-
ence and present-tense canons—and thus to dictate
that international organizations enjoy the immunity
that foreign sovereigns enjoyed in 1945—it had sev-
eral readily available alternatives to accomplish that
result. The fact that it used none of them further
demonstrates the court of appeals’ error.
Most obviously, Congress could have simply en-
shrined into law the specific level of immunity it
thought existed at the time. Or Congress could have
pegged Section 288a(b)’s immunity reference to a
particular date or some other linguistic equivalent,
as it has done in other statutes. Pet. App. 14a (Pil-
lard, J., concurring); OSS Nokalva, Inc. v. Eur.
Space Agency, 617 F.3d 756, 764 (3d Cir. 2010). A
 25
provision of the Energy Policy Act, for instance, pro-
vides that “[p]atents issued pursuant to this subsec-
tion shall provide for surface use to the same extent
as is provided under applicable law prior to October
24, 1992, with respect to oil shale mining claims.” 30
U.S.C. § 242(c)(1). Similarly, in Carcieri v. Salazar,
555 U.S. 379 (2009), the Court held that a 1934 stat-
ute defining “Indian” to “include all persons of Indi-
an descent who are members of any recognized Indi-
an tribe now under Federal jurisdiction” referred on-
ly to those under federal jurisdiction when the stat-
ute was enacted. Id. at 382 (emphasis added). Had
Congress wished the statute to incorporate the law
“at the time of application,” this Court explained, it
“could have omitted the word ‘now.’” Id. at 391.
Alternatively, if Congress wanted the IOIA’s
“same immunity” provision to freeze the law as of
1945, Congress could have styled the provision as a
“reception statute.” A tool many states used dating
back to the Founding era, reception statutes adopted
only those parts of the English common law that
were “in force” at the time of the statutes’ enact-
ment. See generally Ford W. Hall, The Common
Law: An Account of Its Reception in the United
States, 4 Vand. L. Rev. 791 (1951). A typical recep-
tion statute provides that “[a]ll such parts of the
common law as were heretofore in force and use with-
in this State . . . are hereby declared to be in full
force within this State.” N.C. Gen. Stat. § 4-1 (em-
phasis added). The contrast between that language
and the IOIA’s “same immunity . . . as is enjoyed”
wording is evident.
 26
Finally, had Congress wanted to incorporate the
foreign sovereign immunity law of 1945, it otherwise
“could have phrased [the IOIA] in language that
looked to the past.” Gwaltney, 484 U.S. at 57. The
fact that “it did not choose this readily available op-
tion,” id., confirms its intent to incorporate the cur-
rent law of foreign sovereign immunity, rather than
the sovereign immunity law of long ago.
B. The Statute’s Structure Reinforces That
It Incorporates The FSIA
The D.C. Circuit has acknowledged that the text
of the “same immunity” provision implicates the ref-
erence canon. See Atkinson v. Inter-Am. Dev. Bank,
156 F.3d 1335, 1340-41 (D.C. Cir. 1998). But the
court of appeals deemed this “factor” to be “out-
weighed” by the overall structure of the IOIA, which
it has taken to signal that “Congress’ intent was to
adopt th[e] body of [foreign sovereign immunity] law
only as it existed in 1945.” Id. at 1341. This reason-
ing is erroneous. “[L]ook[ing] to the provisions of the
whole law,” Star Athletica, L.L.C. v. Varsity Brands,
Inc., 137 S. Ct. 1002, 1010 (2017) (quotation omit-
ted), only reinforces that the IOIA’s “same immuni-
ty” provision incorporates the current law of foreign
sovereign immunity.
1. For starters, the general reference to the law of
foreign sovereign immunity in Section 288a(b)’s im-
munity-from-suit provision contrasts sharply with
other IOIA provisions governing other privileges and
immunities that do not refer to another body of law,
but instead expressly establish absolute immunity
for international organizations.
 27
For example, the subsection that comes right af-
ter the immunity-from-suit provision—which lays
out various other privileges and immunities—
provides that international organizations’
“[p]roperty and assets . . . shall be immune from
search . . . and from confiscation,” and that “[t]he ar-
chives of international organizations shall be invio-
lable.” 22 U.S.C. § 288a(c). Section 288c similarly
provides, without qualification, that international
organizations “shall be exempt from all property
taxes imposed by, or under the authority of, any Act
of Congress.” Id. § 288c.
This difference between Section 288a(b)’s referen-
tial immunity and the absolute immunities found
elsewhere in the IOIA shows that Section 288a(b)
does not establish a complete immunity rule. After
all, when “Congress includes particular language in
one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Russello v. United
States, 464 U.S. 16, 23 (1983); see also Rubin v. Is-
lamic Republic of Iran, 138 S. Ct. 816, 824 (2018)
(applying this canon in context of immunity statute);
Samantar, 560 U.S. at 317 (same). Had Congress
intended to grant international organizations static,
absolute immunity from suit, it would simply have
used language it used elsewhere—e.g., “shall be im-
mune” or “shall be inviolable.” It did not.
Indeed, this distinction between static and refer-
ential immunity is replicated within another section
of the statute—Section 288d—confirming beyond
question that Congress’s use of one or the other was
 28
deliberate. Section 288d deals with the immunities
of international organizations’ officers and employ-
ees. Subsection (a) of that provision, just like Sec-
tion 288a(b), links immunity to the body of law cov-
ering foreign governments: It provides that “insofar
as concerns laws regulating entry into and departure
from the United States, alien registration and fin-
gerprinting, and the registration of foreign agents,”
the officers and employees of international organiza-
tions are “entitled to the same privileges, exemp-
tions, and immunities as are accorded under similar
circumstances to officers and employees . . . of for-
eign governments.” 22 U.S.C. § 288d(a). But sub-
section (b) provides that international organizations’
officers and employees “shall be immune from suit
and legal process relating to acts performed by them
in their official capacity and falling within their
functions as such . . . officers[] or employees,” full
stop. Id. § 288d(b).
The use of these strikingly different formulations
in neighboring subsections means that the Congress
that enacted the IOIA saw a clear distinction be-
tween the two approaches—for officers and employ-
ees, a static rule of immunity; and for organizations
themselves, a referential, dynamic rule that changes
along with the body of law to which it refers. Con-
gress’s choice to use the latter formulation in Sec-
tion 288a(b) must be given effect.
2. Another structural element of the IOIA points
in the same direction. While Section 288a(b) treats
international organizations and foreign sovereigns
the “same” as to immunity from suit, other IOIA
provisions treat them differently. Section 288f, for
 29
example, provides that while “privileges, exemp-
tions, and immunities granted to a foreign govern-
ment . . . may be conditioned upon the existence of
reciprocity by that foreign government,” the “privi-
leges, exemptions, and immunities of international
organizations” under the IOIA generally are not. 22
U.S.C. § 288f; see also id. § 288d(b) (distinguishing
between foreign governments and the persons they
designate to serve as their representatives in or to
international organizations).
The IOIA thus reflects Congress’s deliberate de-
termination that international organizations and
foreign governments are equivalent with respect to
immunity from suit (and various other purposes) but
distinct for certain others. Treating them differently
for purposes of immunity from suit—as the court of
appeals’ decision would do—would contravene that
textually explicit sorting.
3. The D.C. Circuit has never addressed either of
the two contextual indicators just discussed. In-
stead, its contrary assessment of the IOIA’s struc-
ture in Atkinson was based entirely on a different
feature of the IOIA: the President’s authority to
withdraw, limit, or condition any of the privileges
and immunities that “any [international] organiza-
tion” would otherwise enjoy under the IOIA. See 22
U.S.C. § 288. According to the court of appeals, this
provision suggests “that Congress was content to
delegate to the President the responsibility for up-
dating the immunities of international organizations
in the face of changing circumstances.” Atkinson,
156 F.3d at 1341.
 30
This inference is flawed. The presidential-
authority provision does not grant the President the
authority to establish default immunity rules. In-
stead, as its text indicates, Section 288 addresses
departures from the generally applicable default
rules—authorizing the President to make “organiza-
tion- and function-specific exemptions.” Pet. App.
13a (Pillard, J., concurring); accord OSS Nokalva,
617 F.3d at 763. And that is how the President has
exercised the Section 288 authority—on a case-by-
case basis, and never as a mechanism for updating
the background rules applicable to international or-
ganization immunity.5 In short, the default rules
governing international organizations’ immunity
from suit follow the rules for foreign governments (as
currently codified in the FSIA), whereas Section 288
authorizes the President to withdraw, limit, or con-
dition privileges and immunities of specific organiza-
tions, as particular circumstances warrant.

5 See, e.g., Exec. Order No. 12,425, 48 Fed. Reg. 28,069

(June 16, 1983) (granting to INTERPOL the privileges, exemp-

tions, and immunities conferred by the IOIA, except those pro-
vided by Sections 2(c), portions of Sections 2(d) and 3, and Sec-
tions 4 through 6); Exec. Order No. 12,359, 47 Fed. Reg. 17,791
(Apr. 22, 1982) (granting to the International Food Policy Re-
search Institute the privileges, exemptions, and immunities
conferred by the IOIA except those provided by Sections 2(a),
2(b), 2(c), part of 2(d), and 7(b)); Exec. Order No. 11,718, 38
Fed. Reg. 12,797 (May 14, 1973) (granting to INTELSAT only
certain privileges, exemptions, and immunities provided by the
IOIA); Exec. Order No. 11,059, 27 Fed. Reg. 10,405 (Oct. 23,
1962) (designating and withholding certain immunities from
the Inter-American Tropical Tuna Commission, the Great
Lakes Fishery Commission, and the International Pacific Hali-
but Commission).
 31
That dichotomy serves salutary purposes. Some
of the IOIA’s default rules, as noted above, confer
static, absolute immunity on international organiza-
tions. Others, such as the “same immunity” provi-
sion, may evolve over time and provide less than
complete immunity. Either way, there are good rea-
sons to authorize the President to make organiza-
tion-specific exceptions. Section 288 itself identifies
some—namely, “abuse by an international organiza-
tion or its officers and employees of the privileges,
exemptions, and immunities” provided in the IOIA.
22 U.S.C. § 288. The “functions” performed by a par-
ticular organization may also render some aspect of
the IOIA’s default regime inappropriate. Id. But
none of this overcomes the plain text of the “same
immunity” provision or otherwise renders it unnec-
essary for the IOIA’s default rule regarding immuni-
ty from suit to track the current law of foreign sover-
eign immunity.
C. The IOIA’s Purpose And Drafting History
Confirm That The “Same Immunity” Pro-
vision Incorporates The Current Law Of
Foreign Sovereign Immunity
Given the clarity of the IOIA’s text and structure,
there is no need to consult other sources of statutory
meaning. But insofar as the Court chooses to inspect
the “same immunity” provision’s purpose and draft-
ing history, those sources “confirm[]” what “the text
alone” expresses—that the provision incorporates
the law of foreign sovereign immunity as it currently
stands. See Mohamad v. Palestinian Auth., 566 U.S.
449, 460 (2012).
 32
1. Congress’s “basic purpose” in enacting the
IOIA was “to confer upon international organiza-
tions, and officers and employees thereof, privileges
and immunities of a governmental nature.” S. Rep.
No. 79-861, at 1 (1945) (emphasis added); accord
H.R. Rep. No. 79-1203, at 1 (1945). “With respect to
immunity from suit” in particular, “the privileges,
exemptions, and immunities extended international
organizations are those accorded foreign govern-
ments under similar circumstances.” S. Rep. No. 79-
861, at 4; see also 91 Cong. Rec. 12,432 (Dec. 20,
1945) (“[O]rganization[s] made up of a number of
foreign governments, as well as our own . . . should
enjoy the same status as an embassy of . . . [a for-
eign] government.”).
The logic of Congress’s decision to link interna-
tional organizations with foreign governments, and
to provide that they should enjoy equivalent immun-
ity from suit going forward, is apparent. Interna-
tional organizations are created by sovereign states
and are comprised “entirely or principally of states.”
Restatement (Third) of Foreign Relations Law § 221
(1987); see also The Oxford Handbook of Internation-
al Organizations, at v-vi (Jacob Katz Cogan, et al.
eds., 2016). A foreign state should be treated the
same in U.S. courts whether it acts on its own or
through an organization it helped to create.
Indeed, Congress’s conclusion that the “same”
rules should govern international organization and
foreign sovereign immunity from suit ensures that
as the latter law evolves, states cannot evade legal
accountability merely “by acting through interna-
tional organizations.” OSS Nokalva, 617 F.3d at
 33
764. Under the D.C. Circuit’s interpretation of Sec-
tion 288a(b), for instance, the “Canadian govern-
ment” would be “subject to suit in United States
courts for disputes arising from its commercial activ-
ities here, but the Great Lakes Fishery Commis-
sion—of which the United States and Canada are
the sole members—[would be] immune from suit.”
Pet. App. 16a (Pillard, J., concurring). Or, to take
another example, a compilation of states acting
through the IFC would be immune from suit based
on a bad loan that it made in tandem with a bank
owned by a single state, while the state-owned part-
ner could be held liable in a U.S. court for the same
transaction. See, e.g., Atlantica Holdings, Inc. v.
Sovereign Wealth Fund Samruk-Kazyna JSC, 813
F.3d 98, 102, 117 (2d Cir. 2016) (sovereign wealth
fund not immune under FSIA from securities fraud
claim); Batra v. State Bank of India, 2016 WL
3029957, at *5 (S.D.N.Y. May 25, 2016) (state-owned
bank may be sued for taking unlawful debt-collection
actions “a private commercial bank” might take).
As the United States has explained, there is “no
reason” for such incongruities. Br. for the United
States as Amicus Curiae at 10, Broadbent v. Org. of
Am. States, 628 F.2d 27 (D.C. Cir. 1980) (No. 78-
1465); see also OSS Nokalva, 617 F.3d at 764 (de-
nouncing such “anomalous result[s]”). “[A] group of
states acting through an international organization”
should not be “entitled to a broader immunity than
its member states enjoy when acting alone.” OSS
Nokalva, 617 F.3d at 764. International organiza-
tions have no right to be uniquely above the law.
 34
2. The court of appeals in Atkinson brushed aside
these concerns. Quoting a fragment of the IOIA’s
legislative history—in which a Senate committee
stated that the IOIA would allow the President to
adjust the immunity a designated organization en-
joys if it “‘engage[d], for example, in activities of a
commercial nature’”—the court of appeals hypothe-
sized that Congress intended Section 288 to be the
sole mechanism for “updating the immunities of in-
ternational organizations in the face of changing cir-
cumstances,” such as commercial activity of the kind
the FSIA later exempted from protection. Atkinson,
156 F.3d at 1341 (quoting S. Rep. No. 79-861, at 2).
As an initial matter, the court of appeals simply
misread the sentence it quoted. The Senate Com-
mittee was not “speaking about ‘commercial activi-
ties’ as that term is now defined in the FSIA”—that
is, “either a regular course of commercial conduct or
a particular commercial transaction or act.” See Aa-
ron I. Young, Deconstructing International Organiza-
tion Immunity, 44 Geo. J. Int’l L. 311, 343 & n.215
(2012) (citing 28 U.S.C. § 1603(d) (2006)). Rather,
Congress intended for the President to be able to re-
spond where a designated international organization
(or its employees) engaged in unauthorized activity,
such as starting a side business unrelated to its offi-
cial function. See, e.g., 91 Cong. Rec. 12,530 (Dec.
21, 1945) (“It is a very hypothetical case, . . . that
representatives of Great Britain, for instance, who
would be assigned to headquarters of the [United
Nations] would open up a shipping business in Bos-
ton or San Francisco. They just do not operate that
way.”); id. (President handles “law enforcement” and
 35
“can withdraw the privileges from the employees of
[a] foreign organization” if it “starts functioning here
and goes beyond the scope for which it was created,
let us say starts into business over here”). That
Congress intended the President to police abuses of
official status sheds no light on whether or when
Congress believed international organizations
should be immune from suit based on what we now
consider to be legitimate commercial conduct, let
alone whether organizational immunity from suit
should track foreign sovereign immunity.
But even if the Senate Report had been referring
to “commercial activity” as that term is used in the
FSIA, it would not support the court of appeals’ the-
ory. After all, the decisional law of foreign sovereign
immunity in 1945 did not include any categorical ex-
ception for commercial acts. Thus, Congress at the
time could have believed that “commercial activities”
were an “example” of an area in which the President
might limit a particular designated organization’s
immunity compared to the immunity a foreign sov-
ereign would receive. S. Rep. No. 79-861, at 2. But
that obviously does not mean that if foreign sover-
eigns were later deemed subject to suit based on
their commercial activities, the default rule for in-
ternational organization suit immunity would not
move along with that development.6

6 Congress, in fact, later noted its understanding that the

IOIA tracked that development. When amending the Foreign
Corrupt Practices Act (FCPA), Congress explained that “inter-
national organizations . . . generally have the same immunity
as foreign governments, and the [FSIA] provides that foreign
governments are not immune for actions taken in connection
 36
3. Indeed, the Congress that enacted the IOIA
specifically rejected a proposal to lock in a rule that
international organizations were entitled to absolute
immunity from suit, subject only to the President’s
Section 288 authority. The original House version of
the Act would have provided international organiza-
tions “immunity from suit and every form of judicial
process.” H.R. 4489, 79th Cong. § 2(b) (as intro-
duced, Oct. 24, 1945). The Senate, however, rejected
this phrasing in favor of the “cross-reference” to the
law of foreign sovereign immunity that appears in
the “current formulation of [Section 288a(b)].” See
Pet. App. 14a-15a (Pillard, J., concurring) (citing
H.R. 4489, 79th Cong. § 2(b) (as reported by S.
Comm. on Fin., Dec. 18, 1945)). The Court should
not “read back into [a statute] the very . . . statutory
language that [Congress] discarded in favor of other
language.” Chickasaw Nation v. United States, 534
U.S. 84, 93 (2001) (quotation omitted).
This Court’s decision in Trammel v. United
States, 445 U.S. 40 (1980), cements this analysis. In
that case, the Court considered the scope of the evi-
dentiary privilege established by Federal Rule of Ev-
idence 501. The Judicial Conference Advisory Com-
mittee on the Rules of Evidence had proposed that
Congress adopt a set of nine specific privileges that
would have codified then-existing common law rules.
Id. at 47. But Congress rejected that proposal. In-

with their commercial activities.” H.R. Rep. No. 105-802, at 13

(1998) (citation omitted) (describing the impact of an amend-
ment to the FCPA); see also Bell v. New Jersey, 461 U.S. 773,
784 (1983) (view of a later Congress can have “persuasive val-
ue”).
 37
stead, Congress provided in Rule 501 that privilege
claims are governed by “[t]he common law—as in-
terpreted by United States courts in the light of rea-
son and experience.” Fed. R. Evid. 501. The Court
understood this drafting history to “manifest[] an af-
firmative intention [by Congress] not to freeze the
law of privilege.” Trammel, 445 U.S. at 47 (empha-
sis added). “Its purpose rather was . . . to leave the
door open to change.” Id. Here, by rejecting specific,
absolute immunity language, that was likewise Con-
gress’s obvious intent regarding the IOIA.
II. EVEN IF THE IOIA LOCKED IN THE LAW
OF FOREIGN SOVEREIGN IMMUNITY AS
OF 1945, THAT LAW WOULD REQUIRE
TRACKING THE FSIA
Even if the court of appeals were right that the
IOIA gives international organizations “the same”
suit immunity “as [was] enjoyed by foreign govern-
ments” in 1945, that would not change the ultimate
outcome here. Applying the law of 1945—which re-
quired judicial deference to the political branches’
views at the time of the lawsuit—would lead right
back to the FSIA.
A. The Immunity Rule For Foreign Gov-
ernments In 1945 Was Not Absolute Im-
munity But Deference To The Political
Branches
1. Until the period between the two World Wars,
courts in the United States generally “regarded
themselves as free to decide” questions about foreign
sovereign immunity “as they would any other issue
of common law, basing their judgments on domestic,
 38
maritime, and international law principles.” G. Ed-
ward White, The Transformation of the Constitu-
tional Regime of Foreign Relations, 85 Va. L. Rev. 1,
27-28 (1999) (citing The Schooner Exch. v. McFad-
don, 11 U.S. (7 Cranch) 116, 135-47 (1812), and Un-
derhill v. Hernandez, 168 U.S. 250, 252-54 (1897)).
And courts making such assessments almost always
held that “a sovereign c[ould] []not, without [its] con-
sent, be made a respondent” in our courts. Republic
of Austria v. Altmann, 541 U.S. 677, 690 (2004) (quo-
tation omitted). Thus, for example, this Court held
in 1926 that “a ship owned and possessed by a for-
eign government, and operated by it in the carriage
of merchandise for hire” enjoyed sovereign immuni-
ty, Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562, 570
(1926), despite “the view of the [State] Department”
to the contrary, The Pesaro, 277 F. 473, 479-80 n.3
(S.D.N.Y. 1921).
By the time the IOIA was enacted, however, the
law of foreign sovereign immunity had changed from
a substantive doctrine to a rule of deference to the
political branches. In Ex parte Republic of Peru, 318
U.S. 578 (1943), the Court granted the Republic of
Peru’s motion to prohibit a district court from con-
tinuing to exercise jurisdiction over a Peruvian ves-
sel. Id. at 581-82. The Court held that after the
State Department requested immunity on behalf of
the vessel, the district court should have “relin-
quished” jurisdiction. Id. at 588. Bowing to sugges-
tions “to shift responsibility for determining foreign
sovereign immunity issues from the federal and
state courts to the State Department,” White, 85 Va.
L. Rev. at 138, the Court held that a State Depart-
 39
ment suggestion of immunity “must be accepted by
the courts as a conclusive determination by the polit-
ical arm of Government” that the case may not pro-
ceed. Ex parte Peru, 318 U.S. at 589.
Two years later, in Republic of Mexico v. Hoff-
man, 324 U.S. 30 (1945), the Court reaffirmed that
political-branch immunity determinations controlled.
Hoffman presented a fact pattern materially identi-
cal to that in Berizzi Bros. But although the Court
in Berizzi Bros. had granted sovereign immunity to a
merchant ship owned by a foreign government, the
Court in Hoffman denied such immunity. Id. at 38.
Stressing that the State Department had “[n]ever
allowed a claim of immunity” where a foreign sover-
eign owned but was not in possession of a vessel that
was being used for commercial purposes, the Court
concluded that it was “not for the courts . . . to allow
an immunity on new grounds which the government
has not seen fit to recognize.” Id. at 36.
2. This Court’s later explication of this IOIA-era
precedent confirms that deference to the political
branches—not any particular substantive rule, let
alone an absolute-immunity rule—was the operative
law of foreign sovereign immunity when the IOIA
was enacted. As the Court recently put it, courts at
the time “‘consistently . . . deferred to the decisions
of the political branches—in particular, those of the
Executive Branch—on whether to take jurisdiction’
over particular actions against foreign sovereigns.”
Altmann, 541 U.S. at 689 (alteration in original)
(quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461
U.S. 480, 486 (1983)); see also Republic of Iraq v.
Beaty, 556 U.S. 848, 857 (2009) (Ex parte Peru and
 40
Hoffman established that granting or denying im-
munity was “the case-by-case prerogative of the Ex-
ecutive Branch”); Samantar v. Yousuf, 560 U.S. 305,
311-12 (2010) (similar).
Faced with this recent case law, the majority be-
low dismissed it as mere “dicta.” Pet. App. 6a. But
that is plainly incorrect. In Altmann, for instance,
this Court held that the FSIA applies to pre-FSIA
conduct partly because courts have long “‘deferred to
the [immunity] decisions of the political branches.’”
541 U.S. at 689, 696 (quoting Verlinden, 461 U.S. at
486). At any rate, Ex parte Peru and Hoffman speak
for themselves. They make clear that at the time the
IOIA was enacted, the rule of deference to the politi-
cal branches was “controlling.” Hoffman, 324 U.S. at
38; accord Ex parte Peru, 318 U.S. at 589.
B. Deference To The Political Branches
Would Require Application Of The FSIA
Applying the “same” framework that prevailed in
1945 for deciding foreign sovereign immunity
claims—namely, deference to the political branches’
views—would dictate that the FSIA governs whether
international organizations are immune from suit.
1. Since the Tate Letter’s issuance in 1952, the
“official policy” of the Executive Branch has been the
“restrictive theory” of sovereign immunity. See Al-
fred Dunhill of London, Inc. v. Republic of Cuba, 425
U.S. 682, 698, 703 (1976) (opinion of White, J.).
Congress codified that restrictive theory in the FSIA,
which is now the political branches’ authoritative
statement of the scope of foreign sovereigns’ immun-
ity from suit. And because a court applying 1945
 41
immunity law must “defer” to that political branch
determination, 1945 law would direct the court to
the FSIA.
2. The court of appeals suggested that even if the
courts in 1945 granted the political branches prima-
cy over foreign sovereign immunity, the IOIA still
confers “complete immunity” on international organ-
izations because the Executive Branch at that time
always requested immunity “whenever a foreign
sovereign was sued.” Pet. App. 6a. That is a puz-
zling assertion in light of the Court’s 1945 Hoffman
decision, which denied claimed immunity because
the State Department did not recognize it. See supra
at 6, 39. Nor is Hoffman the only pre-1945 example
of the State Department declining to request immun-
ity on behalf of a foreign government. See, e.g.,
Compania Espanola de Navegacion Maritima, S.A.
v. The Navemar, 303 U.S. 68, 71 (1938); United
States v. Deutsches Kalisyndikat Gesellschaft, 31
F.2d 199, 200, 203 (S.D.N.Y. 1929); The Pesaro, 277
F. at 479 n.3; Lamont v. Travelers Ins. Co., 24
N.E.2d 81, 86 (N.Y. 1939). And where the State De-
partment did not suggest immunity, courts denied it.
See, e.g., Deutsches Kalisyndikat Gesellschaft, 31
F.2d at 200, 203; Ulen & Co. v. Bank Gospodarstwa
Krajowego (Nat’l Economic Bank), 24 N.Y.S.2d 201,
204, 206 (App. Div. 1940).
More fundamentally, the court of appeals’ sugges-
tion that applying a rule of deference to the political
branches would require courts to follow the State
Department’s view as of 1945—as opposed to the po-
litical branches’ view as of today—flies in the face of
precedent. This Court has held that when applying
 42
the rule of deference, courts must defer to “the most
recent [political branch] decision—namely, the
FSIA.” Altmann, 541 U.S. at 696.
The court of appeals’ position also makes no
sense. Recall the reason that courts in 1945 deferred
to the political branches’ positions on immunity from
suit: Immunity then (as now) was viewed as a for-
eign policy question reflecting “current political real-
ities.” Altmann, 541 U.S. at 696 (emphasis added).
That being so, what should matter even under the
court of appeals’ construction of the IOIA are today’s
political realities—not those that prevailed more
than a half century ago.
A rule requiring courts to ascertain what the
Truman Administration’s State Department would
have thought about a modern claim of sovereign
immunity by a particular international organization
in a particular case would also be inherently un-
workable. It would demand “rarified historical spec-
ulation,” Altmann, 541 U.S. at 713 (Breyer, J., con-
curring), with guess stacked on top of guess. Courts
confronted with commercial activities in which for-
eign sovereigns never engaged before 1945—for in-
stance, maintaining investment funds to participate
in emerging securities markets—would first have to
imagine whether the political branches would have
thought such activities deserving of immunity in
general. If so, courts would then have to surmise
whether the State Department would have deemed
the specific defendant worthy of immunity. This in-
quiry would be especially fanciful with respect to the
majority of international organizations (like the IFC)
that did not even exist in 1945, and were not created
 43
or designated under the IOIA until after the State
Department had adopted the “restrictive” view of
sovereign immunity in 1952. No rational Congress
would have enacted such a regime.
* * *
In the end, the notion that courts in 2018 should
attempt to determine what Executive Branch offi-
cials in 1945 would have thought about a particular
claim of immunity simply illuminates why the IOIA
rejects a static view of sovereign immunity from suit
in the first place. Congress instead sensibly adopted
a rule requiring courts to apply the law in existence
at the time of suit—a task for which courts are fully
equipped and that accords with sovereign immuni-
ty’s nature as a doctrine that tracks contemporary
realities. The IOIA accomplishes that objective by
providing that international organizations enjoy “the
same immunity from suit . . . as is enjoyed by foreign
governments.” 22 U.S.C. § 288a(b). The “immunity
from suit” that “is enjoyed by foreign governments”
is set forth in the FSIA, which means that the FSIA
likewise governs the IFC’s claim of immunity here.
CONCLUSION
For the foregoing reasons, the decision below
should be reversed.
 44
Respectfully submitted,

RICHARD L. HERZ JEFFREY L. FISHER

MARCO B. SIMONS Counsel of Record
MICHELLE C. HARRISON PAMELA S. KARLAN
EARTHRIGHTS DAVID T. GOLDBERG
INTERNATIONAL STANFORD LAW SCHOOL
1612 K Street, N.W. SUPREME COURT
Suite 401 LITIGATION CLINIC
Washington, DC 20006 559 Nathan Abbott Way
Stanford, CA 94305
ANTON METLITSKY [email protected]
JENNIFER SOKOLER
SAMANTHA GOLDSTEIN
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036

July 24, 2018

STATUTORY ADDENDUM
 1a

RELEVANT STATUTES
22 U.S.C. § 288:
“International organization” defined; authority
of President.
For the purposes of this subchapter, the term “inter-
national organization” means a public international
organization in which the United States participates
pursuant to any treaty or under the authority of any
Act of Congress authorizing such participation or
making an appropriation for such participation, and
which shall have been designated by the President
through appropriate Executive order as being entitled
to enjoy the privileges, exemptions, and immunities
provided in this subchapter. The President shall be
authorized, in the light of the functions performed by
any such international organization, by appropriate
Executive order to withhold or withdraw from any
such organization or its officers or employees any of
the privileges, exemptions, and immunities provided
for in this subchapter (including the amendments
made by this subchapter) or to condition or limit the
enjoyment by any such organization or its officers or
employees of any such privilege, exemption, or im-
munity. The President shall be authorized, if in his
judgment such action should be justified by reason of
the abuse by an international organization or its of-
ficers and employees of the privileges, exemptions,
and immunities provided in this subchapter or for any
other reason, at any time to revoke the designation of
any international organization under this section,
whereupon the international organization in question
shall cease to be classed as an international organiza-
tion for the purposes of this subchapter.
 2a
22 U.S.C. § 288a:
Privileges, exemptions, and immunities of in-
ternational organizations.
International organizations shall enjoy the status,
immunities, exemptions, and privileges set forth in
this section, as follows:
(a) International organizations shall, to the extent
consistent with the instrument creating them, pos-
sess the capacity—
(i) to contract;
(ii) to acquire and dispose of real and personal
property;
(iii) to institute legal proceedings.
(b) 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
governments, except to the extent that such organiza-
tions may expressly waive their immunity for the pur-
pose of any proceedings or by the terms of any con-
tract.
(c) Property and assets of international organiza-
tions, wherever located and by whomsoever held,
shall be immune from search, unless such immunity
be expressly waived, and from confiscation. The ar-
chives of international organizations shall be inviola-
ble.
(d) Insofar as concerns customs duties and internal-
revenue taxes imposed upon or by reason of importa-
tion, and the procedures in connection therewith; the
registration of foreign agents; and the treatment of of-
ficial communications, the privileges, exemptions,
 3a
and immunities to which international organizations
shall be entitled shall be those accorded under similar
circumstances to foreign governments.

22 U.S.C. § 288b:
Baggage and effects of officers and employees
exempted from customs duties and internal rev-
enue taxes.
Pursuant to regulations prescribed by the Commis-
sioner of U.S. Customs and Border Protection with
the approval of the Secretary of the Treasury, the bag-
gage and effects of alien officers and employees of in-
ternational organizations, or of aliens designated by
foreign governments to serve as their representatives
in or to such organizations, or of the families, suites,
and servants of such officers, employees, or represent-
atives shall be admitted (when imported in connection
with the arrival of the owner) free of customs duties
and free of internal-revenue taxes imposed upon or by
reason of importation.

22 U.S.C. § 288c:
Exemption from property taxes.
International organizations shall be exempt from all
property taxes imposed by, or under the authority of,
any Act of Congress, including such Acts as are appli-
cable solely to the District of Columbia or the Territo-
ries.
 4a
22 U.S.C. § 288d:
Privileges, exemptions, and immunities of offic-
ers, employees, and their families; waiver.
(a) Persons designated by foreign governments to
serve as their representatives in or to international
organizations and the officers and employees of such
organizations, and members of the immediate fami-
lies of such representatives, officers, and employees
residing with them, other than nationals of the
United States, shall, insofar as concerns laws regulat-
ing entry into and departure from the United States,
alien registration and fingerprinting, and the regis-
tration of foreign agents, be entitled to the same priv-
ileges, exemptions, and immunities as are accorded
under similar circumstances to officers and employ-
ees, respectively, of foreign governments, and mem-
bers of their families.
(b) Representatives of foreign governments in or to
international organizations and officers and employ-
ees of such organizations shall be immune from suit
and legal process relating to acts performed by them
in their official capacity and falling within their func-
tions as such representatives, officers, or employees
except insofar as such immunity may be waived by
the foreign government or international organization
concerned.
 5a
22 U.S.C. § 288e:
Personnel entitled to benefits.
(a) Notification to and acceptance by Secretary
of State of personnel
No person shall be entitled to the benefits of this sub-
chapter, unless he (1) shall have been duly notified to
and accepted by the Secretary of State as a repre-
sentative, officer, or employee; or (2) shall have been
designated by the Secretary of State, prior to formal
notification and acceptance, as a prospective repre-
sentative, officer, or employee; or (3) is a member of
the family or suite, or servant, of one of the foregoing
accepted or designated representatives, officers, or
employees.
(b) Deportation of undesirables
Should the Secretary of State determine that the con-
tinued presence in the United States of any person
entitled to the benefits of this subchapter is not desir-
able, he shall so inform the foreign government or in-
ternational organization concerned, as the case may
be, and after such person shall have had a reasonable
length of time, to be determined by the Secretary of
State, to depart from the United States, he shall cease
to be entitled to such benefits.
(c) Extent of diplomatic status
No person shall, by reason of the provisions of this
subchapter, be considered as receiving diplomatic sta-
tus or as receiving any of the privileges incident
thereto other than such as are specifically set forth
herein.
 6a
22 U.S.C. § 288f:
Applicability of reciprocity laws.
The privileges, exemptions, and immunities of inter-
national organizations and of their officers and em-
ployees, and members of their families, suites, and
servants, provided for in this subchapter, shall be
granted notwithstanding the fact that the similar
privileges, exemptions, and immunities granted to a
foreign government, its officers, or employees, may be
conditioned upon the existence of reciprocity by that
foreign government: Provided, That nothing con-
tained in this subchapter shall be construed as pre-
cluding the Secretary of State from withdrawing the
privileges, exemptions, and immunities provided in
this subchapter from persons who are nationals of any
foreign country on the ground that such country is
failing to accord corresponding privileges, exemp-
tions, and immunities to citizens of the United States.

22 U.S.C. § 288f-1:
European Space Agency and Organization of
Eastern Caribbean States; extension of privi-
leges, exemptions, and immunities to members.
The provisions of this subchapter may be extended to
the European Space Agency and to the Organization
of Eastern Caribbean States (including any office es-
tablished in the United States by that organization)
in the same manner, to the same extent, and subject
to the same conditions, as they may be extended to a
public international organization in which the United
States participates pursuant to any treaty or under
the authority of any Act of Congress authorizing such
 7a
participation or making an appropriation for such
participation.

22 U.S.C. § 288f-2:
African Union; extension of privileges, exemp-
tions, and immunities.
(a) The provisions of this subchapter may be extended
to the African Union and may continue to be extended
to the International Labor Organization and the
United Nations Industrial Development Organization
in the same manner, to the same extent, and subject
to the same conditions, as they may be extended to a
public international organization in which the United
States participates pursuant to any treaty or under
the authority of any Act of Congress authorizing such
participation or making an appropriation for such
participation.
(b) Under such terms and conditions as the President
shall determine, consistent with the purposes of this
subchapter, the President is authorized to extend, or
enter into an agreement to extend, to the African Un-
ion Mission to the United States of America, and to its
members, the privileges and immunities enjoyed by
diplomatic missions accredited to the United States,
and by members of such missions, subject to corre-
sponding conditions and obligations.
 8a
22 U.S.C. § 288f-3:
Immunities for International Committee of the
Red Cross.
The International Committee of the Red Cross, in
view of its unique status as an impartial humanitar-
ian body named in the Geneva Conventions of 1949
and assisting in their implementation, shall be con-
sidered to be an international organization for the
purposes of this subchapter and may be extended the
provisions of this subchapter in the same manner, to
the same extent, and subject to the same conditions,
as such provisions may be extended to a public inter-
national organization in which the United States par-
ticipates pursuant to any treaty or under the author-
ity of any Act of Congress authorizing such participa-
tion or making an appropriation for such participa-
tion.

22 U.S.C. § 288f-4:
International Union for Conservation of Nature
and Natural Resources; extension of privileges,
exemptions, and immunities.
The International Union for Conservation of Nature
and Natural Resources shall be considered to be an
international organization for the purposes of this
subchapter and may be extended the provisions of
this subchapter in the same manner, to the same ex-
tent, and subject to the same conditions, as such pro-
visions may be extended to a public international or-
ganization in which the United States participates
pursuant to any treaty or under the authority of any
Act of Congress authorizing such participation or
making an appropriation for such participation.
 9a
22 U.S.C. § 288f-5:
European Central Bank; extension of privi-
leges, exemptions, and immunities.
The provisions of this subchapter may be extended to
the European Central Bank in the same manner, to
the same extent, and subject to the same conditions,
as they may be extended to a public international or-
ganization in which the United States participates
pursuant to any treaty or under the authority of any
Act of Congress authorizing such participation or
making an appropriation for such participation.

22 U.S.C. § 288f-6:
Global Fund to Fight AIDS, Tuberculosis and
Malaria; extension of privileges, exemptions,
and immunities.
The provisions of this subchapter may be extended to
the Global Fund to Fight AIDS, Tuberculosis and Ma-
laria in the same manner, to the same extent, and
subject to the same conditions, as they may be ex-
tended to a public international organization in which
the United States participates pursuant to any treaty
or under the authority of any Act of Congress author-
izing such participation or making an appropriation
for such participation.
 10a
22 U.S.C. § 288f-7:
Office of the High Representative in Bosnia and
Herzegovina and the International Civilian Of-
fice in Kosovo; extension of privileges, exemp-
tions, and immunities.
The provisions of this subchapter may be extended to
the Office of the High Representative in Bosnia and
Herzegovina (and to its officers and employees) or the
International Civilian Office in Kosovo (and to its of-
ficers and employees) in the same manner, to the
same extent, and subject to the same conditions, as
such provisions may be extended to a public interna-
tional organization in which the United States partic-
ipates pursuant to any treaty or under the authority
of any Act of Congress authorizing such participation
or making an appropriation for such participation.
Any such extension may provide for the provisions of
this subchapter to continue to extend to the Office of
the High Representative in Bosnia and Herzegovina
(and to its officers and employees) or the Interna-
tional Civilian Office in Kosovo (and to its officers and
employees) after that Office has been dissolved.

22 U.S.C. § 288g:
Organization of American States; extension of
privileges and immunities to members.
Under such terms and conditions as he shall deter-
mine, the President is hereby authorized to extend, or
to enter into an agreement extending, to the repre-
sentatives of member states (other than the United
States) to the Organization of American States and to
permanent observers to the Organization of American
 11a
States, and to members of the staffs of said represent-
atives and permanent observers, the same privileges
and immunities, subject to corresponding conditions
and obligations, as are enjoyed by diplomatic envoys
accredited to the United States.

22 U.S.C. § 288h:
Commission of European Communities; exten-
sion of privileges and immunities to members.
Under such terms and conditions as he shall deter-
mine and consonant with the purposes of this section,
the President is authorized to extend, or to enter into
an agreement extending, to the Mission to the United
States of America of the Commission of the European
Communities, and to members thereof, the same priv-
ileges and immunities subject to corresponding condi-
tions and obligations as are enjoyed by diplomatic
missions accredited to the United States and by mem-
bers thereof. Under such terms and conditions as the
President may determine, the President is authorized
to extend to other offices of the Commission of the Eu-
ropean Communities which are established in the
United States, and to members thereof—
(1) the privileges and immunities described in the
preceding sentence; or
(2) as appropriate for the functioning of a particular
office, privileges and immunities, equivalent to those
accorded consular premises, consular officers, and
consular employees, pursuant to the Vienna Conven-
tion on Consular Relations.
 12a
22 U.S.C. § 288i:
Liaison Office of the People’s Republic of China;
extension of privileges and immunities to mem-
bers.
Under such terms and conditions as he shall deter-
mine and consonant with the purposes of this section,
the President is authorized to extend to the Liaison
Office of the People’s Republic of China in Washing-
ton and to the members thereof the same privileges
and immunities subject to corresponding conditions
and obligations as are enjoyed by diplomatic missions
accredited to the United States and by members
thereof.

22 U.S.C. § 288j:
International Development Law Institute.
For purposes of the International Organizations Im-
munities Act (22 U.S.C. 288 and following), the Inter-
national Development Law Institute shall be consid-
ered to be a public international organization in
which the United States participates under the au-
thority of an Act of Congress authorizing such partic-
ipation.
 13a
22 U.S.C. § 288k:
Extension of certain privileges, exemptions,
and immunities to Hong Kong Economic and
Trade Offices.
(a) Application of International Organizations
Immunities Act
The provisions of the International Organizations Im-
munities Act (22 U.S.C. 288 et seq.) may be extended
to the Hong Kong Economic and Trade Offices in the
same manner, to the same extent, and subject to the
same conditions as such provisions may be extended
to a public international organization in which the
United States participates pursuant to any treaty or
under the authority of any Act of Congress authoriz-
ing such participation or making an appropriation for
such participation.
(b) Application of international agreement on
certain State and local taxation
The President is authorized to apply the provisions of
Article I of the Agreement on State and Local Taxa-
tion of Foreign Employees of Public International Or-
ganizations, done at Washington on April 21, 1994, to
the Hong Kong Economic and Trade Offices.
(c) “Hong Kong Economic and Trade Offices”
defined
The term “Hong Kong Economic and Trade Offices”
refers to Hong Kong’s official economic and trade mis-
sions in the United States.
 14a
22 U.S.C. § 288l:
The Holy See.
Under such terms and conditions as the President
shall determine, the President is authorized to ex-
tend, or to enter into an agreement to extend, to the
Permanent Observer Mission of the Holy See to the
United Nations in New York, and to its members, the
privileges and immunities enjoyed by the diplomatic
missions of member states to the United Nations, and
their members, subject to corresponding conditions
and obligations.