United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2021 Decided March 29, 2022

No. 20-7114

RAMONA MATOS RODRIGUEZ, ET AL.,

APPELLEES

v.

PAN AMERICAN HEALTH ORGANIZATION,

APPELLANT

JOAQUIN MOLINA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-00928)

David W. Bowker argued the cause for appellant. With 

him on the briefs were Patrick J. Carome and Daniel S. 

Volchok.

Jeffrey T. Green and Marisa S. West were on the brief for 

amici curiae The International Bank for Reconstruction and 

Development, et al. in support of appellant.

Samuel J. Dubbin argued the cause for appellees. With 

him on the brief were Jonathan W. Cuneo, Charles J. Cooper, 

Michael W. Kirk, Haley N. Proctor and Joseph O. Masterman.
2

Martina E. Vandenberg and Stuart A. Raphael were on the 

brief for amicus curiae Human Trafficking Legal Center in 

support of appellees. Elbert Lin entered an appearance.

Agnieszka M. Fryszman was on the brief for amici curiae 

Senator Robert Menendez, et al. in support of appellees. 

Lewis Yelin, Attorney, U.S. Department of Justice, argued 

the cause for amicus curiae The United States in support of 

neither party. With him on the brief were Brian M. Boynton, 

Acting Assistant Attorney General, and Sharon Swingle, 

Attorney.

Before: HENDERSON, TATEL and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: A group of 

Cuban physicians (physicians) sued the Pan American Health 

Organization (PAHO) for its role in facilitating Brazil’s Mais 

Médicos (translated, “More Doctors”) program, under which

Brazil hired foreign physicians to augment its medical services 

provided to impoverished Brazilians. Cuba supplied physicians

to the program, allegedly without their consent and in violation 

of human trafficking laws. The physicians sued PAHO for, 

inter alia, acting as a financial intermediary between Brazil and 

Cuba. PAHO moved to dismiss the suit, asserting immunity 

under both the International Organizations Immunities Act 

(IOIA), 22 U.S.C. § 288, and the World Health Organization 

(WHO) Constitution, Constitution Adopted by the United 

States of America and Other Governments Respecting a World 

Health Organization, June 21, 1948, 62 Stat. 2679, T.I.A.S. 

No. 1808. The district court denied dismissal of the claim that 
3

PAHO acted as a financial intermediary and PAHO appeals 

therefrom. As detailed infra, we affirm.

I. BACKGROUND

On review of a dismissal denial, “we must accept as true 

all material allegations of the complaint, drawing all reasonable 

inferences from those allegations in plaintiffs’ favor, and 

presuming that general allegations embrace those specific facts 

that are necessary to support the claim.” LaRoque v. Holder, 

650 F.3d 777, 785 (D.C. Cir. 2011) (cleaned up). We recite the 

facts accordingly.

In 2012, Brazilian and Cuban officials discussed Cuba’s

“export[ing]” medical services to Brazil. Rodriguez v. Pan Am. 

Health Org., 502 F. Supp. 3d 200, 208 (D.D.C. 2020). 

According to the United States Department of State, Cuba 

relies on “medical missions” as a significant source of income

and recruits physicians under the threat of “harsh social, 

economic, political[,] personal, reputational, and legal 

repercussions.” Id. Cuba proposed sending six thousand 

internal medicine specialists to Brazil. Id. Brazilian officials 

did not want to enter into an “intergovernmental agreement,” 

which required approval of the Brazilian Congress and thus 

could “generate controversy.” Id. To avoid an 

intergovernmental agreement, Brazilian officials proposed 

using PAHO as an intermediary. Id. Accordingly, PAHO 

entered into an agreement with Brazil and Cuba, the “Technical 

Cooperation Agreement Between the Ministry of Public Health 

of the Republic of Cuba and the Pan American Health 

Organization/World Health Organization for Expanded Access 

by the Brazilian Population to Primary Health Care”

(Agreement).

PAHO’s participation in the Mais Médicos program is 

somewhat ambiguous, as the complaint alleges two alternative 
4

roles that PAHO played. First, the complaint alleges that 

PAHO directly participated in human trafficking. PAHO 

“knowingly provided and obtained the labor or services of 

Plaintiffs by threats of force, physical restraint, threats of 

physical restraint, serious harm, threats of serious harm, abuse 

of laws and legal process, threats of abuse of laws and legal 

process, and by participating in a scheme, plan, or pattern 

intended to cause Plaintiffs and Class members to believe that 

if they did not comply with the restrictions and work under the 

conditions PAHO instituted and enforced, they would suffer 

serious harm or physical restraint.” App. 123. By its alleged 

conduct, the complaint continues, PAHO violated the 

Trafficking Victims Protection Act (TVPA), 18 U.S.C. 

§ 1589(a) (prohibiting “provid[ing] or obtain[ing] the labor or 

services of a person” by force or threat). The complaint also 

alleges that “PAHO . . . knowingly participated in the 

recruitment, harboring, and transportation of, and provided and 

obtained Plaintiffs’ labor and services,” in violation of § 1590 

(prohibiting “transport[ing] . . . any person for labor or services 

in violation of this chapter”). App. 124.

Alternatively, the complaint alleges that PAHO acted as a

financial intermediary between Brazil and Cuba, to wit: 

“PAHO . . . entered into a bilateral agreement with the Cuban 

government to guarantee it would transfer resources from third 

parties as a way to compensate Cuba for the utilization of its 

medical professionals, i.e. to ‘triangulate’ health care 

cooperation which is ‘compensated,’ through the ‘movement 

of resources.’” App. 88–89. According to the physicians,

PAHO’s role included moving money, for a fee, between the 

countries. App. 64, 66, 70, 72. Brazil made payments to 

PAHO’s Citibank account in Washington, D.C and PAHO then 

forwarded 85% to Cuba, 10% to the physicians and retained

5% for its services. App. 71–72.
5

The complaint acknowledges that under the Agreement, 

PAHO is to provide technical medical expertise necessary to 

facilitate the Mais Médicos program. “In June of 2012, PAHO 

entered into an agreement with the Government of Cuba that 

call[ed] for PAHO [t]o facilitate international cooperation . . . 

and the triangulation in health care cooperation and the moving 

of resources.” App. 72 (internal quotation marks omitted) 

(second alteration in original). Under the Agreement, then, 

PAHO was to serve as a “broker—for a fee—of medical 

services” and “triangulat[e] health care services between Cuba 

and [Brazil] for compensation” App. 66, 72–73 (internal 

quotation marks omitted). According to the complaint, 

however, PAHO’s outward role to “facilitate” or “triangulate” 

medical services was merely a “pretext for being a conduit of 

money.” App. 88.

Four Cuban Mais Médicos physicians escaped to the 

United States and filed a class-action suit against PAHO in the 

U.S. District Court for the Southern District of Florida.

Rodriguez, 502 F. Supp. 3d at 209. The complaint contains two 

civil counts: first, PAHO participated in human trafficking and 

violated the TVPA, 18 U.S.C. §§ 1589, 1590; and, second, 

PAHO conspired to provide involuntary labor and thus violated 

the Racketeering Influenced and Corrupt Organizations 

(RICO) Act, 18 U.S.C. § 1962. PAHO successfully moved to 

transfer the case to the U.S. District Court of the District of 

Columbia as the correct venue under the IOIA. Rodriguez, 502 

F. Supp. 3d at 209; see 28 U.S.C. § 1391(f), (f)(4) (“civil action 

against a foreign state . . . may be brought . . . in the United 

States District Court for the District of Columbia”). PAHO 

moved to dismiss on immunity, abstention and improper 

service grounds. 502 F. Supp. 3d at 211–36. 

The district court determined that “Count I”—alleging that 

PAHO violated the TVPA—itself included three separate 
6

claims. Id. at 209–10. First, PAHO obtained and provided

human labor through intimidation, violating 18 U.S.C. 

§ 1589(a) (prohibiting “provid[ing] or obtain[ing] the labor or 

services of a person” by force or threat). Rodriguez, 502 F. 

Supp. 3d at 210. Second, PAHO benefitted financially from 

human trafficking, violating 18 U.S.C. § 1589(b) (prohibiting 

“knowingly benefit[ting], financially or by receiving anything 

of value, from participation in a venture which has engaged in 

the providing or obtaining of labor or services by” force or 

threat). Rodriguez, 502 F. Supp. 3d at 210. Third, PAHO 

“trafficked” Cuban physicians, violating 18 U.S.C. § 1590 

(prohibiting “transport[ing] . . . any person for labor or services 

in violation of this chapter”). Rodriguez, 502 F. Supp. 3d at 

210.

The district court upheld PAHO’s IOIA immunity as to the 

first and third TVPA claims as well as the RICO claim, id. at 

211–23, and held those claims in abeyance while it determined 

whether to allow jurisdictional discovery, id. at 236–37. 

Accordingly, those claims are not yet before us.

On the second TVPA claim, the district court rejected

PAHO’s IOIA immunity. Because the IOIA grants designated

international organizations the same immunity as foreign 

sovereigns, 22 U.S.C. § 288a(b), the Foreign Sovereign 

Immunities Act (FSIA), 28 U.S.C. § 1602, governs the 

immunity of international organizations also. Jam v. Int’l Fin. 

Corp., 139 S. Ct. 759, 772 (2019). Under the FSIA, an entity 

loses its immunity if its challenged “action is based upon a 

commercial activity carried on in the United States.” 28 U.S.C. 

§ 1605(a)(2). The district court concluded that the commercial 

activity exception applies because “it is . . . a normal 

commercial function to act as a financial intermediary 

transferring funds, for a fee, from one entity to another.”

Rodriguez, 502 F. Supp. 3d at 215. The district court rejected 
7

PAHO’s argument that the action was “based upon” forced 

labor abroad1because “Plaintiffs’ 1589(b) claim turns on 

separate and separately wrongful conduct, distinct from any 

acts that could form the basis of a claim against Cuba or Brazil, 

by a defendant other than Cuba or Brazil—to wit, PAHO’s 

procurement of a financial benefit from knowing participation 

in the allegedly exploitative Mais M[é]dicos program.” Id. at 

216. The district court also rejected PAHO’s IOIA immunity 

regarding the RICO claim to the extent that it rests on the 

conduct underlying the 1589(b) claim. Id. at 223.

The district court also concluded that the WHO 

Constitution did not render PAHO immune from the second 

TVPA claim. Id. at 227–28. PAHO claimed immunity under a 

provision that grants the WHO, PAHO’s parent organization, 

“privileges and immunities as may be necessary” to carry out 

WHO functions. Id. at 227; WHO CONST. art. 67(a). The 

district court ruled that the provision is not self-executing 

because Article 68 of the WHO Constitution provides that the 

“privileges and immunities shall be defined in a separate 

agreement.” Rodriguez, 502 F. Supp. 3d at 228. Because the 

United States has not entered into a qualifying “separate 

1

 Under the commercial activity exception, the challenged 

action must be “based upon” commercial activity in the United 

States. 28 U.S.C. § 1605(a)(2). Under Supreme Court precedent 

interpreting the “activity” an action is “based upon,” we look to the 

“gravamen” thereof. OBB Personenverkehr AG v. Sachs, 577 U.S. 

27, 35 (2015). If the gravamen of PAHO’s claim were the forced 

labor abroad, the commercial activity exception would not apply 

because the action would not be “based upon” activity “in the United 

States.” 
8

agreement,” id., PAHO is without WHO Constitution 

immunity from suit.2 PAHO timely appealed. 

Pursuant to 28 U.S.C. § 1291 and the collateral-order 

doctrine, see de Csepel v. Republic of Hungary, 859 F.3d 1094, 

1109 (D.C. Cir. 2017) (denial of motion to dismiss on 

sovereign immunity ground is immediately appealable final

decision), we have jurisdiction of the second TVPA claim, that 

is, that PAHO financially benefitted from its participation in a 

venture that provided or obtained forced labor in violation of 

§ 1589(b).

II. ANALYSIS

PAHO asserts its immunity under both the IOIA and the 

WHO Constitution. Our review is de novo. Zuza v. Off. of the 

High Representative, 857 F.3d 935, 938 (D.C. Cir. 2017). 

“Where, as here, the defendant contests only the legal 

sufficiency of [the] jurisdictional claims, the standard is similar 

to that of Rule 12(b)(6), under which dismissal is warranted if 

no plausible inferences can be drawn from the facts alleged 

that, if proven, would provide grounds for relief.” Valambhia 

v. United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir. 

2020) (internal quotation marks omitted). Because the IOIA 

“grants international organizations the ‘same immunity’ from 

suit ‘as is enjoyed by foreign governments’ . . . the Foreign 

Sovereign Immunities Act governs the immunity of 

international organizations.” Jam, 139 S. Ct. at 772. Under the 

FSIA, a foreign sovereign “bears the burden of proving that the 

plaintiff[s’] allegations do not bring [their] case within a 

2

 The district court also rejected other claims not raised on 

appeal: an immunity claim under the United Nations Charter, 

Rodriguez v. Pan Am. Health Org., 502 F. Supp. 3d 200, 227 (D.D.C. 

2020), an abstention argument based on international comity, id. at 

229, and an improper service argument, id. at 231.
9

statutory exception to immunity.” Phoenix Consulting Inc. v. 

Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citation 

omitted). Accordingly, PAHO bears the burden of establishing

that no statutory exception to immunity applies. The WHO 

Constitution is an international treaty and thus its 

interpretation—including whether it is self-executing—is an 

issue of law that we also review de novo. McKesson Corp. v. 

Islamic Republic of Iran, 539 F.3d 485, 488 (D.C. Cir. 2008). 

A. IOIA Immunity

The IOIA grants an international organization “the same 

immunity from suit . . . as is enjoyed by foreign governments.” 

22 U.S.C. § 288a(b). The IOIA provisions link the immunity of 

international organizations and foreign governments. Jam, 139 

S. Ct. at 768. In 1960, President Eisenhower designated PAHO 

an international organization for IOIA purposes. Tuck v. 

PAHO, 668 F.2d 547, 550 n.5 (D.C. Cir. 1981).

The IOIA, through the FSIA provisions, grants PAHO 

immunity from suit brought in American courts. 28 U.S.C. 

§ 1604. Under the FSIA’s commercial activity exception,

however, PAHO loses its immunity if “the action is based upon 

a commercial activity carried on in the United States by the 

[international organization].” Id. § 1605(a)(2). The Supreme 

Court has said that courts should look to “the gravamen” of the 

action when determining whether an action is “based upon” a

commercial activity in the United States. OBB 

Personenverkehr AG v. Sachs, 577 U.S. 27, 35 (2015). “The 

gravamen” simply means “the crux” of the action. Fry v. 

Napoleon Cmty. Schs., 137 S. Ct. 743, 755 (2017).

Unsurprisingly, the parties describe neither the gravamen nor

its application under the commercial activity exception in the 

same way. Their dispute includes whether to identify the 
10

gravamen on a claim-by-claim basis and, further, whether the 

gravamen took place in the United States. 

1. Whether to determine the gravamen on a claim-by-claim 

basis

PAHO contends that we should look to the entire 

complaint in determining the gravamen of the action. It notes 

that the commercial activity exception applies if “the action is 

based upon a commercial activity,” 28 U.S.C. § 1605(a)(2) 

(emphasis added), and argues that “the action” refers to the 

entire lawsuit. If PAHO is correct, we must consider the entire 

complaint to determine the “gravamen.” See Sachs, 577 U.S. at 

35 (court looks to “gravamen” in considering whether “an 

action is based upon a commercial activity carried on in the 

United States” (emphasis added)). In Sachs, the Supreme Court 

interpreted its earlier FSIA holding in Saudi Arabia v. Nelson, 

507 U.S. 349 (1993). It observed that Nelson “did not 

undertake . . . an exhaustive claim-by-claim, element-byelement analysis of the Nelsons’ 16 causes of action” in 

analyzing the “gravamen.” Sachs, 577 U.S. at 34. “Rather than 

individually analyzing each of the Nelsons’ causes of action, 

[the Court] zeroed in on the core of their suit: the Saudi 

sovereign acts that actually injured them.” Id. at 35. We read 

Sachs—and 28 U.S.C. § 1605(a)(2)—differently from PAHO.

First, the FSIA text does not require courts to look to the 

entire lawsuit to determine the gravamen thereof. PAHO relies 

significantly on the assumption that “action” in 28 U.S.C. 

§ 1605(a)(2) refers to the entire suit. But “action” can refer both 

to “a . . . judicial proceeding,” Action, Black’s Law Dictionary 

(11th ed. 2019), and serve as shorthand for a “cause of action,”

id. (referring to “cause of action” entry); see also Cause of 

Action, Black’s Law Dictionary (11th ed. 2019) (“group of 

operative facts giving rise to one or more bases for suing”).
11

And the Supreme Court has stated that “statutory references to 

an ‘action’ have not typically been read to mean that every 

claim included in the action must meet the pertinent

[jurisdictional] requirement before the ‘action’ may proceed.” 

Jones v. Bock, 549 U.S. 199, 221 (2007).

Second, Sachs instructs courts to define the “gravamen” 

on a claim-by-claim basis. Earlier, in Nelson, the plaintiff had

claimed that the commercial activity exception lifted Saudi 

Arabia’s sovereign immunity. 507 U.S. at 355–56. In that case, 

the Supreme Court read the commercial activity exception to 

require a court to look to the “elements of a claim that, if 

proven, would entitle a plaintiff to relief under his theory of the 

case” in determining whether an action is “based upon” 

commercial activity in the United States. Id. at 357. After 

Nelson, the Ninth Circuit Sachs opinion adopted an “elementby-element” approach under which the commercial activity 

exception applies if any element of a claim involves a 

“commercial activity . . . in the United States.” Sachs v. 

Republic of Austria, 737 F.3d 584, 599 (9th Cir. 2013) (en 

banc).3

3

 Before Sachs, circuit courts had interpreted Nelson in various

ways. Like the Ninth Circuit, the Eighth Circuit read Nelson to say 

that “only one element of a plaintiff’s claim must concern 

commercial activity carried on in the United States.” BP Chems. Ltd.

v. Jiangsu Sopo Corp., 285 F.3d 677, 682 (8th Cir. 2002). It therefore 

found that a wrongful disclosure case was “based upon” commercial 

activity in the United States because the plaintiffs alleged that the 

defendants disclosed “trade secrets to American vendors in the 

United States.” Id. at 684. Indeed, rejecting the “gravamen” theory, 

the Eighth Circuit held that courts should look beyond the elements 

only if guarding against a “semantic ploy” like recasting an

intentional tort claim as a “facially invalid” failure-to-warn claim. Id. 

at 685–86. 
12

In Sachs, the Supreme Court rejected that approach. Sachs, 

507 U.S. at 34. Sachs had purchased a Eurail train pass in the 

United States and was later injured at a government-owned 

train station in Austria. Id. at 30. She sued Austria’s railway 

operator, relying on the commercial activity exception because 

an element of her claim—her Eurail purchase—involved 

“commercial activity . . . in the United States.” Id. at 30. The 

Supreme Court clarified that earlier, in Nelson, it did not 

“individually analyz[e] each of the [plaintiffs’] causes of 

action” because the “Saudi sovereign acts that actually injured 

them . . . form[ed] the basis for the [plaintiffs’] suit.” Id. at 35 

(quoting Nelson, 507 U.S. at 358) (internal quotation marks 

In our circuit, we read Nelson to say that the commercial activity 

must constitute an essential element of the claim. Kirkham v. Société

Air France, 429 F.3d 288, 292 (D.C. Cir. 2005) (“so long as the 

alleged commercial activity establishes a fact without which the 

plaintiff will lose, the commercial activity exception applies”). In 

Kirkham, we explained that the plaintiff “must show she purchased a 

plane ticket in order to establish a passenger-carrier relationship with 

the airline” and proceed with her negligence claim against Air 

France. Id. The Fourth and Fifth Circuits interpreted Nelson 

similarly. See Globe Nuclear Servs. & Supply (GNSS), Ltd. v. AO

Techsnabexport, 376 F.3d 282, 287 (4th Cir. 2004) (what plaintiff 

“will need to prove” constitutes what action is “based upon”); Kelly

v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 853 (5th Cir. 2000) 

(inquiry is whether alleged commercial activity is “an essential 

element of the claims”).

The Third Circuit read Nelson to “require the actual legal claims 

being pursued to have arisen materially from the commercial activity 

undertaken by the foreign state.” Fed. Ins. Co. v. Richard I. Rubin &

Co., 12 F.3d 1270, 1288 (3d Cir. 1993). It therefore held that tort 

claims arising from deficient electrical and fire detection systems 

were not “based upon” a Dutch-controlled entity that invested in 

American property. Id. at 1289. The investments were not “directly 

connected to the cause of action” or the “‘basis’ or ‘foundation’ of 

the claims.” Id.
13

omitted). PAHO argues that the Sachs Court, in saying that 

Nelson “did not undertake . . . an exhaustive claim-by-claim, 

element-by-element analysis of the Nelsons’ 16 causes of 

action,” id. at 34, instructs us to look to the entire lawsuit to 

determine whether an action is “based upon” commercial 

activity in the U.S. But Sachs rejected the Ninth Circuit’s “oneelement” approach and instead reaffirmed its direction to look 

to the “gravamen” of the suit. Indeed, Sachs itself considered

individual claims, declaring that “the gravamen of Sachs’s suit 

plainly occurred abroad. All of her claims turn on the same 

tragic episode in Austria.” Id. (emphasis added). The Court 

explicitly rejected Sachs’s assertion that some of her claims 

were based upon American activity. Id. at 35–36 (“Sachs 

maintains that some of those claims are not limited to negligent 

conduct or unsafe conditions in Austria, but rather involve at 

least some wrongful action in the United States. . . . However 

Sachs frames her suit, the incident in Innsbruck remains at its 

foundation.”). The Court in fact emphasized its opinion’s

limited reach, noting it “consider[ed] here only a case in which 

the gravamen of each claim is found in the same place.” Id. at 

36 n.2 (emphasis added). Sachs, then, approves considering the 

“gravamen” on a claim-by-claim basis.

Since Sachs, we have considered “FSIA immunity 

determinations on a claim-by-claim basis.” Simon v. Republic

of Hungary, 812 F.3d 127, 141 (D.C. Cir. 2016) (citing 

precedent from other circuits), vacated on other grounds by 

Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021); 

see also Action All. of Senior Citizens of Greater Philadelphia

v. Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) (vacated opinions 

“continue to have precedential weight, and in the absence of 

contrary authority, we do not disturb them”). In Simon, we 

reviewed claims made by fourteen Holocaust survivors against 

the Republic of Hungary and its state-owned railway. Id. at 

132. The survivors “assert[ed] causes of action ranging from 
14

the common law torts of conversion and unjust enrichment for 

the plaintiffs’ property loss, to false imprisonment, torture, and 

assault for their personal injuries, to international law 

violations.” Id. at 134. They argued that FSIA’s expropriation 

exception applied, id. at 140, which requires, inter alia, “that 

the claims are ones in which ‘rights in property’ are ‘in issue,’” 

id. at 141 (quoting 28 U.S.C. § 1605(a)(3)). We reviewed the

causes of action separately, noting that property rights were at 

issue in the plaintiffs’ conversion claims but not in their

personal injury claims. Id. Although PAHO emphasizes that 

the commercial activity exception uses “action” (and the 

expropriation exception does not), we think it unlikely that this 

implicit word choice differentiates commercial activity 

exception analysis from that of other FSIA exceptions.

The parties also contest PAHO’s alleged delict—whether 

PAHO “moved money for a fee” (i.e., acting as a financial 

intermediary) or, instead, arranged medical services for a fee 

(i.e., acting as an international public health organization). As 

described supra, the complaint alleges that PAHO “moved 

money for a fee” under the “pretext” of arranging medical 

services. PAHO, of course, maintains that it in fact organized a 

public health program. At this stage of the litigation, however,

we accept all well-pleaded allegations as true. Valambhia, 964 

F.3d at 1137. The complaint plainly asserts that, with respect 

to the funds that constituted its financial benefit in violation of 

1589(b), PAHO had the role of financial “intermediary,” 

transferring money among Mais Médicos participants.

2. Whether the gravamen occurred in the United States

The parties also dispute how to define the gravamen under 

the claim-by-claim approach and whether the gravamen 

constitutes “commercial activity carried on in the United 

States.” PAHO maintains that the “gravamen” is the activity 
15

that in fact injured the physicians, the alleged human

trafficking and forced labor. In Sachs, the Supreme Court 

rejected Sachs’s argument that, for her failure-to-warn claim,

the gravamen occurred in the United States. 577 U.S. at 35–36. 

“Under any theory of the case that Sachs presents . . . there is 

nothing wrongful about the sale of the [train] pass standing 

alone. Without the existence of the unsafe boarding conditions 

in [Austria], there would have been nothing to warn Sachs 

about when she bought the [train] pass. However Sachs frames 

her suit, the incident in [Austria] remains at its foundation.” Id.

Moreover, in Jam v. International Finance Corporation, 3 

F.4th 405 (D.C. Cir. 2021), we recently applied a similar 

rationale. The plaintiff alleged that the International Finance 

Corporation (IFC) negligently lent money to an Indian powergeneration project that allegedly caused significant 

environmental damage. Id. at 407. Relying in part on the

Supreme Court’s earlier decision in the case, see Jam, 139 S. 

Ct. at 779 (“[I]f the ‘gravamen’ of a lawsuit is tortious activity 

abroad, the suit is not ‘based upon’ commercial activity within 

the meaning of the FSIA’s commercial activity exception.”), 

we held that, notwithstanding the IFC loan transaction took 

place in the United States, the “gravamen” occurred in India 

because all the allegedly wrongful conduct occurred there. 

Jam, 3 F. 4th at 409. 

PAHO asserts that “moving money for a fee” likewise 

becomes “wrongful” only due to activity that occurred

elsewhere—in this instance, alleged human trafficking and 

forced labor in Cuba and/or Brazil. Absent the alleged 

trafficking and forced labor, PAHO would have merely acted 

as a typical financial intermediary. As in Sachs and in Jam, 

PAHO argues that we should look to what “actually injured” 

the physicians in identifying the “gravamen.” See Sachs, 577 

U.S. at 35–36. If PAHO is right, the “gravamen” occurred 

abroad and the commercial activity exception would not apply.
16

We think that Sachs does not require defining the 

“gravamen” by looking to the acts that “actually injured” the 

physicians. In defining the “gravamen” according to the 

activity that injured the plaintiffs, the Sachs Court clarified that

“[d]omestic conduct with respect to different types of 

commercial activity may play a more significant role in other 

suits.” 577 U.S. at 36 n.2; see also id. (“Justice Holmes wrote 

that the ‘essentials’ of a personal injury narrative will be found 

at the ‘point of contact’—‘the place where the boy got his 

fingers pinched.’ At least in this case, that insight holds true.”

(citation omitted) (emphasis added)). Nelson, Sachs and Jam 

all considered commercial activity connected with tortious 

activity that occurred abroad. See Jam, 139 S. Ct. at 779 (“[I]f 

the ‘gravamen’ of a lawsuit is tortious activity abroad, the suit 

is not ‘based upon’ commercial activity within the meaning of 

the FSIA’s commercial activity exception.” (emphasis added)). 

The Court expressed concern that artful pleading would allow 

litigants to “recast virtually any claim of intentional tort” as a 

failure to warn and thus create an exception to sovereign 

immunity. Sachs, 577 U.S. at 36 (quoting Nelson, 507 U.S. at 

363).4

4

 Indeed, in Nelson and Sachs, the Court explained that it looked 

to the “gravamen” as plaintiffs could otherwise recast nearly any 

tortious activity that occurred abroad as a tort that occurred in the 

United States. See Nelson, 507 U.S. at 363 (“[A] plaintiff could 

recast virtually any claim of intentional tort committed by sovereign 

act as a claim of failure to warn, simply by charging the defendant 

with an obligation to announce its own tortious propensity before 

indulging it. To give jurisdictional significance to this feint of 

language would effectively thwart the [FSIA’s] manifest purpose to 

codify the restrictive theory of foreign sovereign immunity.”); id. at 

358 (“Those torts, and not the arguably commercial activities that 

preceded their commission, form the basis for the Nelsons’ suit.”);

Sachs, 577 U.S. at 36 (iterating Nelson’s concern about artful 
17

Here, however, the alleged financial activity itself gives 

rise to a cause of action. See 18 U.S.C. § 1589(b) (prohibition 

on financially benefitting from participation in human 

trafficking). At least with regard to alleged illegal financial 

activity, we consider the “gravamen” of that alleged wrongful 

conduct rather than any harm that may result elsewhere. The 

“gravamen” of a suit consists of “those elements of a claim that, 

if proven, would entitle a plaintiff to relief under his theory of 

the case,” Nelson, 507 U.S. at 357, or, phrased differently, “the 

core” of a claim, see Sachs, 577 U.S. at 35. If the conduct is 

itself wrongful—as opposed to wrongful based only on other 

conduct—it constitutes the “core” of the claim. The physicians

allege that PAHO committed a financial crime in the U.S., see 

18 U.S.C. § 1589(b), and press the corresponding civil claim, 

see 18 U.S.C. § 1595(a) (“individual who is a victim of a 

violation of this chapter may bring a civil action against the 

perpetrator . . . and may recover damages”). The “financial 

benefit” that violates § 1589(b) is itself “wrongful conduct” 

and occurred in the United States, to wit: PAHO received, 

forwarded and retained the Mais Médicos money through its 

Washington, D.C. bank account. Apart from the wrongful 

conduct PAHO allegedly participated in abroad, the physicians 

also allege wrongful conduct that occurred entirely within the 

U.S.5

pleading of tort claims); id. (gravamen occurs abroad if plaintiff 

suffers “personal injury” abroad and “seeks relief under claims for 

negligence, strict liability for failure to warn, or breach of implied 

warranty”); see also Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 

755 (2017) (concern about artful pleading motivated holding in 

Sachs).

5

 Because we define the “gravamen” as it relates to the injurycausing conduct, and not to the resulting injury, we need not address 

who suffered from the § 1589(b) violation. Even if we did, however, 

we would reach the same conclusion. Section 1589(a) criminalizes 
18

Accordingly, we believe that the physicians have

sufficiently alleged that PAHO’s conduct of “moving money 

for a fee” constituted “commercial activity carried on in the 

United States.” We emphasize, however, that we hold only that 

the physicians have made sufficient allegations to survive 

dismissal; the district court retains the authority to reassess its 

jurisdiction as the litigation progresses. Arbaugh v. Y&H Corp., 

546 U.S. 500, 506 (2006) (“subject-matter jurisdiction . . . may 

be raised by a party, or by a court on its own initiative, at any 

stage in the litigation”); Lujan v. Defs. of Wildlife, 504 U.S. 

555, 561 (1992) (burden of establishing jurisdiction 

varies “with the manner and degree of evidence required at the 

successive stages of the litigation”).

B. WHO Constitution Immunity

PAHO also claims immunity under the WHO 

Constitution. The WHO Constitution provides that it “shall 

enjoy in the territory of each Member such privileges and 

immunities as may be necessary for the fulfillment of its 

objective and for the exercise of its functions.” WHO CONST.

art. 67(a). “Such . . . privileges and immunities shall be defined 

in a separate agreement to be prepared by the Organization in 

consultation with the Secretary-General of the United Nations 

the “provid[ing] or obtain[ing of] labor” through force. Under a 

§ 1589(a) claim, the suffered injury is plainly involuntary servitude. 

By contrast, § 1589(b)—the TVPA subsection claim sub judice—

criminalizes knowing benefit, financial or otherwise, from 

participation in a venture that has provided or obtained forced labor. 

Section 1589(b), like § 1589(a), protects against involuntary 

servitude. Cf. Rodriguez, 502 F. Supp. 3d at 217 (PAHO injured 

physicians because its financial activity played direct role in harming 

them). Section 1589(b) also protects commercial entities that decline 

to benefit from forced labor and may be harmed by competition from 

products or services garnering implicit subsidies from forced labor.
19

and concluded between the Members.” Id. art. 68. We assume 

arguendo that PAHO, the WHO’s Regional Office for the 

Americas, Agreement Between the World Health Organization 

and the Pan American Sanitary Organization, May 24, 1949, 

also enjoys the immunity granted to the WHO under the WHO 

Constitution. We nonetheless reject PAHO’s immunity claim 

because the relevant provision of the WHO Constitution is not 

self-executing.6

Although the Supremacy Clause of the United States 

Constitution guarantees that “all Treaties . . . shall be the 

supreme Law of the Land,” U.S. CONST. art. VI, cl. 2, the 

Supreme Court has long recognized the “distinction between 

treaties that automatically have effect as domestic law, and 

those that—while they constitute international law 

commitments—do not by themselves function as binding 

federal law.” Medellin v. Texas, 552 U.S. 491, 504 (2008). The 

court must determine whether a treaty has domestic legal 

effect—that is, whether the treaty is “self-executing.” “When 

[a treaty’s] stipulations are not self-executing, they can only be 

enforced pursuant to legislation to carry them into effect.” 

Whitney v. Robertson, 124 U.S. 190, 194 (1888). 

To determine whether a treaty is self-executing, the court

must “decide whether a treaty’s terms reflect a determination 

by the President who negotiated it and the Senate that 

confirmed it that the treaty has domestic effect.” Medellin, 552 

U.S. at 521. “The interpretation of a treaty [is] like the 

6

 The physicians make other arguments challenging PAHO’s 

asserted immunity under the WHO Constitution. They argue that the 

United States did not adopt the WHO Constitution through proper 

constitutional procedures and that WHO immunity does not extend 

to PAHO (WHO’s regional affiliate). Because we conclude that 

Article 67(a) of the WHO Constitution is not self-executing, we do 

not reach these arguments. 
20

interpretation of a statute.” Id. at 506. We first look to the 

treaty’s text. Id. Because a treaty is “an agreement among 

sovereign powers, we have traditionally [also] considered as 

aids to its interpretation the negotiating and drafting 

history (travaux préparatoires) and the postratification 

understanding of the contracting parties.” Zicherman v. Korean

Air Lines Co., 516 U.S. 217, 226 (1996); see also Choctaw 

Nation of Indians v. United States, 318 U.S. 423, 431 (1943) 

(courts “look beyond the written words” more often when

interpreting treaty than when interpreting contract). 

Nonetheless, “[t]he clear import of treaty language controls 

unless application of the words of the treaty according to their 

obvious meaning effects a result inconsistent with the intent or 

expectations of its signatories.” United States v. Stuart, 489 

U.S. 353, 365–66 (1989) (quoting Sumitomo Shoji America,

Inc. v. Avagliano, 457 U.S. 176, 180 (1982)) (internal 

quotation marks omitted).

As made plain by the language of Articles 67(a) and 68 of 

the WHO Constitution, Article 67(a) is not self-executing.

First, Article 67(a) does not provide an enforceable rule-ofdecision. If a treaty provision does not contain a judicially 

manageable rule of decision, the provision is ordinarily not 

self-executing. See Diggs v. Richardson, 555 F.2d 848, 851 

(D.C. Cir. 1976) (treaty is not self-executing if it does “not 

provide specific standards”); cf. Edye v. Robertson, 112 U.S. 

580, 598–99 (1884) (“A treaty, then, is a law of the land as an 

act of congress is, whenever its provisions prescribe a rule by 

which the rights of the private citizen or subject may be 

determined.”). Article 67(a) provides that the WHO enjoys

“privileges and immunities . . . necessary for the fulfillment of 

[the WHO’s] objective.” That standard is far too general to 

establish a rule of decision.
21

Moreover, Article 68 stipulates that the political branches 

will enforce Article 67(a). See WHO CONST. art. 68 (Article 

67(a)’s “privileges and immunities shall be defined in a 

separate agreement to be prepared by the Organization in 

consultation with the Secretary-General of the United Nations 

and concluded between the Members”). If treaty language 

requires a political branch to take future action, courts almost 

always conclude that the treaty language committed discretion 

to the political branches and is therefore not self-executing. See 

Diggs, 555 F.2d at 851 (treaty not self-executing if it “call[s] 

upon governments to take certain action”); Republic of 

Marshall Islands v. United States, 865 F.3d 1187, 1194 (9th 

Cir. 2017) (treaty provision that “anticipates future action . . . 

to implement or honor the treaty obligation” is not selfexecuting); cf. Medellin, 552 U.S. at 509 (“The U.N. Charter’s 

provision of an express diplomatic—that is, nonjudicial—

remedy is itself evidence that [International Court of Justice]

judgments were not meant to be enforceable in domestic 

courts.”). Article 68 states that Article 67(a)’s “privileges and 

immunities shall be defined in a separate agreement to be 

prepared by the Organization in consultation with the 

Secretary-General of the United Nations and concluded 

between the Members.” The WHO Constitution thereby 

requires members to conclude an agreement defining the 

privileges and immunities. By adopting the WHO Constitution, 

the President and the Congress thereby agreed that another 

agreement is required to define the WHO’s privileges and 

immunities, relieving the courts of the task of defining them.

In response, PAHO relies on Article 67(a)’s mandatory 

language. See WHO CONST. art. 67(a) (WHO “shall enjoy . . . 

such privileges and immunities as may be necessary for the 

fulfillment of its objective and for the exercise of its functions”) 

(emphasis added). Indeed, if a treaty provision does not include 

mandatory language like “shall” or “must,” that omission 
22

usually indicates that the provision is not self-executing. 

Medellin, 552 U.S. at 508. But “even mandatory language may 

not be conclusive evidence that a provision is self-executing if 

the context and treaty objectives indicate otherwise.” Doe v.

Holder, 763 F.3d 251, 255 (2d Cir. 2014). In other words, in

determining whether a treaty provision is self-executing, 

mandatory language is required but not necessarily sufficient.

PAHO also asserts that the U.S. has by implication bound 

itself to the separate treaty that defines the WHO’s “privileges 

and immunities.” In 1947, as provided by Article 68, the United 

Nations General Assembly approved the Convention on the 

Privileges and Immunities of the Specialized Agencies

(CPISA). See Convention on the Privileges and Immunities of

the Specialized Agencies, 33 U.N.T.S. 261 (1947) (art. I, 

§ 1(ii)(g) & art. III, § 4). The CPISA grants the WHO

immunity from every form of legal process. Id. at 264, 266. The 

United States joined the WHO in 1948, see Constitution 

Adopted by the United States of America and Other 

Governments Respecting a World Health Organization, June 

21, 1948, 62 Stat. 2679, T.I.A.S. No. 1808, one year after the 

U.N. General Assembly adopted the CPISA. But the United 

States has never ratified the CPISA. 

PAHO contends that the United States “by implication”

ratified the CPISA, at least insofar as it defines the “privileges 

and immunities” of Article 67(a) of the WHO Constitution, 

when it ratified the WHO Constitution. But the United States

did not ratify the CPISA by virtue of the WHO Constitution’s 

provision requiring a subsequent agreement defining 

“privileges and immunities.” Indeed, when the U.S. eventually 

entered into a corresponding treaty that granted immunity to 

the U.N.—the Convention on the Privileges and Immunities of 

the United Nations (CPIUN)—the Senate Report indicates that 

the political branches had not ratified treaties like the CPISA
23

because they thought that the IOIA itself provided sufficient 

immunity to international organizations. S. Exec. Rep. No. 91-

17, p. 1, 8, 11, 14 (1970). Moreover, the political branches 

thought it necessary to ratify the CPIUN—which expanded 

IOIA immunity in “minor ways,” id. at 1—even though 

Articles 105(1) and 105(3) of the U.N. Charter effectively 

mirror the WHO Constitution’s Article 67(a) and Article 68, 

respectively.7

Finally, we note that the United States has submitted an 

amicus brief affirming that, in its view, WHO Constitution 

Article 67(a) is not self-executing. “Respect is ordinarily due 

the reasonable views of the Executive Branch concerning the 

meaning of an international treaty.” El Al Israel Airlines, Ltd.

v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999). The Executive 

Branch’s position reinforces our decision.

For the foregoing reasons, we affirm the district court’s 

judgment denying PAHO’s motion to dismiss the 18 U.S.C. 

§ 1589(b) claim and remand for further proceedings consistent 

with this opinion.

7

 Compare WHO CONST. art. 67(a) (WHO “shall enjoy in the 

territory of each Member such privileges and immunities as may be 

necessary for the fulfillment of its objective and for the exercise of 

its functions”) and WHO CONST. art. 68 (“Such . . . privileges and 

immunities shall be defined in a separate agreement to be prepared 

by the Organization in consultation with the Secretary-General of the 

United Nations and concluded between the Members.”) with U.N.

CHARTER art. 105(1) (“The Organization shall enjoy in the territory 

of each of its Members such privileges and immunities as are 

necessary for the fulfillment of its purposes.”) and U.N. CHARTER

art. 105(3) (“The General Assembly may make recommendations 

with a view to determining the details of the application of 

paragraphs 1 . . . of this Article or may propose conventions to the 

Members of the United Nations for this purpose.”).
24

So ordered.