Portal:Supreme Court of the United States

“ Congress at that time and at the request of many of those organizations enacted the Immunities Act. Given the differences between international organizations and nation states, along with the Act’s purposes and the risk of untoward consequences, I would leave the Immunities Act where we found it–as providing for immunity in both commercial and noncommercial suits.
My decision rests primarily not upon linguistic analysis, but upon basic statutory purposes. Linguistic methods alone, however artfully employed, too often can be used to justify opposite conclusions. ”

“ Under the majority’s interpretation, by contrast, there is no such flexibility. The Executive does not have the power to tailor immunity by taking into account the risk of a lawsuit’s unjustified interference with institutional objectives or other institutional needs. Rather, the majority’s holding takes away an international organization’s immunity (in cases arising from “commercial” activities) across the board. And without a new statute, there is no way to restore it, in whole or in part. ”

“ Now consider the consequences that the majority’s reading of the statute will likely produce–consequences that run counter to the statute’s basic purposes. Although the UN itself is no longer dependent upon the Immunities Act, many other organizations, such as the FAO and several multilateral development banks, continue to rely upon that Act to secure immunity, for the United States has never ratified treaties nor enacted statutes that might extend the necessary immunity, commercial and noncommercial alike. ”

“ The majority, resting primarily upon the statute’s language and canons of interpretation, holds that the statute’s reference to “immunity” moves with the times. As a consequence, the statute no longer allows international organizations immunity from lawsuits arising from their commercial activities. In my view, the statute grants international organizations that immunity–just as foreign governments possessed that immunity when Congress enacted the statute in 1945. ”

“ The problem is simple: “Without knowing the point in time at which the law speaks, it is impossible to tell what is past and what is present or future.” Carr v. United States, 560 U. S. 438, 463 (2010) (Alito, J., dissenting) . It is purpose, not linguistics, that can help us here. ”

“ The words “same... as,” in the phrase “same immunity... as,” provide no greater help. The majority finds support for its dynamic interpretation in the Civil Rights Act of 1866, which gives all citizens the “same right” to make and enforce contracts and to buy and sell property “as is enjoyed by white citizens.” 42 U. S. C. §§1981 (a) , 1982 (emphasis added) . But it is purpose, not words, that readily resolves any temporal linguistic ambiguity in that statute. The Act’s objective, like that of the Fourteenth Amendment itself, was a Nation that treated its citizens equally. ”

“ Those organizations, which included the United Nations, the International Monetary Fund, and the World Bank, were designed to allow member countries to collectively pursue goals such as stabilizing the international economy, rebuilding war-torn nations, and maintaining international peace and security. ”

“ The IFC first contends that affording international organizations only restrictive immunity would defeat the purpose of granting them immunity in the first place. Allowing international organizations to be sued in one member country’s courts would in effect allow that member to second-guess the collective decisions of the others. It would also expose international organizations to money damages, which would in turn make it more difficult and expensive for them to fulfill their missions. The IFC argues that this problem is especially acute for international development banks. ”

“ Notably, the IFC’s own charter does not state that the IFC is absolutely immune from suit.
Nor is there good reason to think that restrictive immunity would expose international development banks to excessive liability. As an initial matter, it is not clear that the lending activity of all development banks qualifies as commercial activity within the meaning of the FSIA. To be considered “commercial,” an activity must be “the type” of activity “by which a private party engages in” trade or commerce. ”

“ At the time the IOIA was enacted, foreign governments enjoyed virtually absolute immunity from suit. Today that immunity is more limited. Most significantly, foreign governments are not immune from actions based upon certain kinds of commercial activity in which they engage. This case requires us to determine whether the IOIA grants international organizations the virtually absolute immunity foreign governments enjoyed when the IOIA was enacted, or the more limited immunity they enjoy today. ”

“ Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations–as they have consistently done in the past. These methods of interpretation can help voters hold officials accountable for their decisions and permit citizens of our diverse democracy to live together productively and in peace–basic objectives in America of the rule of law itself. ”

“ Consider, for example, the mission of UNRRA. The United States and other nations created that organization in 1943, as the end of World War II seemed in sight. Its objective was, in the words of President Roosevelt, to “ ‘assure a fair distribution of available supplies among’ ” those liberated in World War II, and “ ‘to ward off death by starvation or exposure among these peoples.’ ” 1 G. Woodbridge, UNRRA: The History of the United Nations Relief and Rehabilitation Administration 3 (1950) . ”

“ The World Bank, for example, encourages development either by guaranteeing private loans or by providing financing from its own funds if private capital is not available. See Articles of Agreement of the International Bank for Reconstruction and Development, Art. I, Dec. 27, 1945, 60 Stat. 1440, T. I. A. S. No. 1502.
Some of these organizations, including the International Finance Corporation (IFC) , themselves believe they do not need broad immunity in commercial areas, and they have waived it. ”

“ And those commitments, of necessity, included immunity from suit in commercial areas, since organizations were buying goods and making contracts in the United States.
To achieve these purposes, Congress enacted legislation that granted necessarily broad immunity. And that fact strongly suggests that Congress would not have wanted the statute to reduce significantly the scope of immunity that international organizations enjoyed, particularly organizations engaged in development finance, refugee assistance, or other tasks that U. S. law could well decide were “commercial” in nature. ”

“ To begin, the privileges and immunities accorded by the IOIA are only default rules. If the work of a given international organization would be impaired by restrictive immunity, the organization’s charter can always specify a different level of immunity. The charters of many international organizations do just that. ”

“ More than that, Congress likely recognized that immunity in the commercial area was even more important for many international organizations than it was for most foreign governments. Unlike foreign governments, international organizations are not sovereign entities engaged in a host of different activities. ”

“ And even if an international development bank’s lending activity does qualify as commercial, that does not mean the organization is automatically subject to suit. The FSIA includes other requirements that must also be met. For one thing, the commercial activity must have a sufficient nexus to the United States. ”

“ Respondent International Finance Corporation is an international organization headquartered in the United States. The IFC finances private-sector development projects in poor and developing countries around the world. About 10 years ago, the IFC financed the construction of a power plant in Gujarat, India. Petitioners are local farmers and fishermen and a small village. ”

“ The more natural reading of the IOIA is confirmed by a canon of statutory interpretation that was well established when the IOIA was drafted. According to the “reference” canon, when a statute refers to a general subject, the statute adopts the law on that subject as it exists whenever a question under the statute arises. 2 J. Sutherland, Statutory Construction §§5207–5208 (3d ed. 1943) . For example, a statute allowing a company to “collect the same tolls and enjoy the same privileges” as other companies incorporates the law governing tolls and privileges as it exists at any given moment. ”

“ See 28 U. S. C. §§1603, 1605 (a) (2) . For another, a lawsuit must be “based upon” either the commercial activity itself or acts performed in connection with the commercial activity. See §1605 (a) (2) . ”