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DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author(s).
Notes
1 See the website of the Union of International Organizations, https://uia.org/faq/intorgs.
2 Some 70 international organizations currently have their headquarters in the United States, most in New York City or Washington D.C.
3 Among other major cities around the world that host IO headquarters, one might point to Berne, Brussels, Geneva, The Hague, Jakarta, London, Manila, Montreal, Nairobi, Paris, Rome, Singapore, and Vienna.
4 UN Charter Arts. 104 and 105(1). To the same effect, Article 133 of the Charter of the Organization of the Organization of American States provides that the OAS shall enjoy, in the territory of its Member States, ‘such legal capacity, privileges, and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes.’ Generally, see the Report of the Inter-American Juridical Committee on the Immunities of International Organizations, CJI/doc.554/18 rev.2, 16 August 2018 at Guideline 2: ‘Objective of Jurisdictional Immunities. Jurisdictional immunities are granted to international organizations to enable them to accomplish their object and purpose.’
5 See, for example, the Convention on the Privileges and Immunities of the United Nations (‘CPIUN’ or ‘General Convention’), Feb. 13, 1946, 1 U.N.T.S. 16, entered into force with respect to the United States Apr. 29, 1970, TIAS No. 6900, 21 U.S.T. 1418. Somewhat more broadly, it provides, in Article II § 2, that ‘[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.’ Article VIII § 29 provides that the UN ‘shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.’
In most instances, the organization in question will also have concluded some sort of ‘host country’ agreement with the State where it is headquartered as well as others in which it has a presence. See, for example, the 1947 Agreement between the United Nations and the United States Regarding the Headquarters of the United Nations, 61 Stat. 3416, TIAS Np. 1676, 11 UNTS 118 (1947), which provides in §§ 7, 8 and 9 while relevant U.S. law applies and U.S. courts have jurisdiction, the headquarters district is ‘inviolable’ and that the UN itself has power to make necessary regulations to establish the ‘conditions in all respects necessary for the full execution of its functions.’
6 Rishi Gulati, Access to Justice and International Organiztions: Coordinating Jurisdiction between the National and International Orders (Cambridge University Press 2022) 142. See also August Reinisch, International Organizations before National Courts (Cambridge University Press 2000) 233. For historical background and an endorsement of the functional approach, see Josef L Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 42 Am. J. Int’l L 828 and Edwin H Fetter, ‘The Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization’ (1960) 9 Am. U. L. Rev. 60.
7 International Organizations Immunities Act (‘IOIA’), Dec. 29, 1945, Pub.L. No. 291, 59 Stat. 669 (1945), codified as amended at 22 U.S.C. §§ 288–288f.
8 22 U.S.C. § 288. The United Nations was so designated by Ex. Ord. No. 9698, Feb. 19, 1946, 11 F.R. 1809; the International Monetary Fund by Ex. Ord. No. 9751, July 11, 1946, 11 F.R. 7713; and the International Finance Corporation by Ex. Ord. No. 10680, Oct. 2, 1956, 21 F.R. 7647.
9 22 U.S.C. § 288a(a).
10 22 U.S.C. § 288a(b) and (c).
11 28 U.S.C. § 288 (emphasis added). For this reason, the Restatement (Third) Foreign Relations Law of the United States (1987) specifically stated at § 467(1) that ‘[u]nder international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member State as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process … .’ See also the Introductory Note to § 492: ‘Under international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member States as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process, and from financial controls, taxes and duties.’
12 22 U.S.C. § 288a(b). A similar equation appears in § 288d: ‘Insofar as concerns customs duties and internal-revenue taxes imposed upon or by reason of importation, and the procedures in connection therewith; the registration of foreign agents; and the treatment of official communications, the privileges, exemptions, and immunities to which international organizations shall be entitled shall be those accorded under similar circumstances to foreign governments.’
13 § 2(b), H.R. 4489, 79th Cong., 1st Sess. 1945 (introduced Oct. 24, 1945).
14 See H. Rep. No. 1203 [to accompany H.R. 4489], Nov. 12, 1945; remarks of Representative Robertson on H.R. 4489, Cong. Rec. 10865–66 (Nov. 20, 1945).
15 See § 7(b) of H.R. 4489, supra n.13: ‘Representatives of foreign governments in or to international organizations and officers and employees 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 functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.’ See also H. Rep. No. 1203 at 3, 6.
16 Statement of Senator Taft, on H.R. 4489 as reported from the Senate Finance Committee, Cong. Rec. 12432 (Dec. 20, 1945) (emphasis added).
17 See S. Rep. No. 861, 79th Cong., 1st Sess. 2 (Dec. 18, 1945) (emphasis added), and Sen. Taft's remarks, Cong. Rec. 12432, Dec. 20, 1945, Pub. L. 291, 59 Stat. 669 (Dec. 29, 1945). It is unclear whether the reference to ‘governments’ as opposed to ‘States’ was intended to have any significance.
18 Indeed, there is some indication that a proposed amendment to grant ‘absolute immunity’ was modified in the Senate Finance Committee to provide ‘the same immunity … as is enjoyed by foreign governments.’ H.R. 4489, 79th Cong § 2(b), Cong. Rec. at 10,867, 12,432 and 12,532 (1945). According to the Senate Report, this provision was intended to ‘permit the adjustment or limitation of the privileges in the event that any international organization should engage, for example, in activities of a commercial nature.’ S. Rep. No. 861, 79th Cong., 1st Sess., at 2–4 (1945). That suggests an inclination towards ‘functional immunity.’ For a different conclusion, however, see Ylli Dautaj, ‘Immunity from Suit for International Organizations: The Judiciary's New Que of Separating Lawsuit Sheep from Lawsuit Goats’ (2020) 27 Ind. J. Global Legal Stud. 207 (arguing that § 288a(b) is best understood as ‘a specific reference to the presumptive ‘virtually absolute’ immunity’ enjoyed by foreign States).
19 S. Rep. No. 861, 79th Cong. 1st Sess. (Dec. 18, 1945) at 3 noting inter alia that ‘the immunity from suit to be extended to officers and employees of international organizations is limited to immunity for acts performed by them in their official capacity whereas diplomatic officers enjoy full immunity from legal processes in this country.’
20 One possibility might have been to permit the executive in a given case to give an international organization greater immunity than it would otherwise have enjoyed under its constitutive treaty, although there does not appear to be any support for that alternative.
21 For a thoughtful description of the evolution from absolute to restrictive immunity, see generally Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations (Oxford University Press 2018) 21–37.
22 Foreign Sovereign Immunities Act of 1976, PL 94–583, Oct. 21, 1976, 90 Stat. 2891, codified as amended at 28 U.S.C. §§ 1330, 1602 et seq. (‘FSIA’). Today the restrictive approach is reflected in the law of a number of national jurisdictions, such as the U.K. State Immunity Act 1978 c. 33 and Canada's State Immunity Act, R.S.C., 1985, c. S-18, as well as in the 2004 UN Convention on the Immunities of States and Their Property (not yet in force), UN Doc. A/59/508 (2004).
23 In addition to the exceptions for ‘commercial activities,’ ‘waivers of immunity,’ and ‘agreements to submit to arbitration,’ the statute permits suits for money damages ‘for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.’ 28 U.S.C. § 1605(a).
24 For a thoughtful survey of the relevant decisional law, see Trllium Chang, ‘A Functional Framework To Balance Accountability With The Needs Of International Organizations: International Organizational Immunity Post-Jam’ (2021) 9 Penn. St. J. L. & Int’l Aff. 126.
25 Broadbent v. Organization of American States, 481 F.Supp. 907 (D.D.C. 1978), aff’d, 628 F.2d 27 (D.C. Cir. 1980).
26 481 F.Supp. at 907–08.
27 Id. at 908.
28 628 F.3d at 36. To much the same effect, see Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C. Cir. 1981).
29 Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983).
30 Id. at 618.
31 See, e.g., Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C. Cir. 1981); Bomiah v. United Nations General Assembly, 664 F.Supp. 69 (E.D.N.Y. 1987); Morgan v. International Bank for Reconstruction and Development, 752 F.Supp. 492 (D.D.C. 1990); Dujardin v. International Bank For Reconstruction and Development, 9 Fed.Appx. 19 (D.C. Cir. 2001); Brzak v. United Nations, 551 F.Supp.2d 313 (S.D.N.Y. 2008), aff’d 597 F.3d 107 (2d Cir. 2010); Laventure v. United Nations, 279 F.Supp.3d 394 (E.D.N.Y. 2017).
32 OSS Nokalva, Inc. Vv. European Space Agency, 617 F.3d 756 (3rd Cir. 2010).
33 Georges v. United Nations, 84 F.Supp.3d 246 (S.D.N.Y., 2015), aff’d 834 F.3d 88 (2d Cir. 2016).
34 834 F.3d at 97, citing Brzak v. United Nations, 597 F.3d 107, 111–12 (2d Cir. 2010). For additional background, see Oakland, ‘Holding Peacekeepers Accountable: Haiti and Cholera’ (2021) 62 Va. J. Int’l L. 235.
35 Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (D .C. Cir. 1998), affirming Atkinson v. Kestell, 954 F.Supp. 14 (D.D.C. 1997).
36 Citing to 2B Sutherland Statutory Construction § 51.08, at 192 (Norman J. Singer, 5th edn 1992).
37 156 F.3d 1335 at 1337.
38 IFC Articles of Agreement, art. I(i). The following description is taken from Jam v. International Finance Corporation, 172 F.Supp.3d 104 (D.D.C. 2016). This decision and subsequent proceedings are discussed in Gulati, Access to Justice and International Organizations, supra n. 6 at 151–56.
39 As in the Georges case, the suit was based on the premise that the relevant decisions were made at the IMF's headquarters in Washington.
40 Id. Under prevailing D.C. Circuit law, the court said, waiver provisions are to be narrowly interpreted and should be construed more broadly only ‘when the waiver would arguably enable the organization to pursue more effectively its institutional goals.’ Id. at 109 (citations omitted).
41 860 F.3d 703 (D.C. Cir. 2017), relying heavily on Atkinson v. Inter–Am. Dev. Bank, 156 F.3d 1335, 1340 (D.C. Cir. 1998).
42 Jam v. Int'l Fin. Corp., 139 S.Ct. 759 (2019).
43 Justice Kavanaugh took no part in the proceedings.
44 139 S.Ct. 759 at 768.
45 Id. at 769: ‘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.’
46 Id. at 770. The Court expressly rejected the approach of the D.C. Circuit in Atkinson.
47 Id. at 772. See Carson Young, ‘The Limits of International Organization Immunity: An Argument for A Restrictive Theory of Immunity Under the IOIA’ (2017) 95 Tex. L. Rev. 889 (discussing the ‘circuit split’ represented by Atkinson and OSS Nokalva and arguing that the IOIA was likely intended to keep international organization immunity at a level commensurate with that of foreign States).
48 Id. at 773.
49 Jam v. International Finance Corp., 442 F.Supp.3d 162 (D.D.C. 2020).
50 3 F.4th 405 (D.C. Cir. 2021), cert. denied, 142 S.Ct. 2668 (2022).
51 Zhan v. World Bank, No. 1:19-cv-01973-DLF, 2019 WL 6173529 (D.D.C. Nov. 20, 2019), aff’d 828 Fed. Appx. 723 (Mem) (D.C. Cir. 2020).
52 502 F.Supp.3d 200 (D.D.C. 2020), aff’d 29 F.4th 706 (D.C. Cir. 2022).
53 Kling v. World Health Organization, 532 F.Supp.3d 141 (S.D.N.Y. 2021).
54 Similarly, the court was unreceptive to a claim brought against the International Criminal Police Organization by an individual claiming that the issuance of a ‘red notice’ had violated his due process rights and constituted negligent infliction of emotional distress. In El Omari v. Interpol, 2021 WL 1924183 (E.D.N.Y. 2021), aff’d 35 F.4th 83 (2d Cir. 2022), the trial court rejected plaintiff's argument that because Interpol had not been founded upon a multilateral treaty (0nly by agreement with France), it did not qualify for IOIA immunity, was not a ‘public’ government actor, and did not qualify as tax exempt under the relevant provision of the U.S. tax code.
55 Rosenkrance v. Inter-American Development Bank, 2021 WL 1254367 (D.D.C. 2021), aff’d 35 F.4th 854 (D.C. Cir. 2022).
56 2021 WL 1254367 at *9.
57 Id. at *10. Altogether, these extensive procedures mirror the steps a government might take to protect public funds, deter fraud and corruption, and penalize wrongdoers.
58 35 F.4th 854 at 864. The court of appeals also agreed that the waiver exception to IOIA and FSIA immunity did not apply.
59 Leonard A. Sacks & Associate, P.C. v. Int’l Monetary Fund, 26 F4th 470 (D.C. Cir. 2022).
60 One possibility might have been to permit the executive in a given case to give an international organization greater immunity than it would otherwise have enjoyed under its constitutive treaty, although there does not appear to be any support for that alternative.
61 See, e.g., Brief for the Respondent in Jam v. IFC, No. 17–1011, Supreme Court of the United States, Sept. 10, 2018, contending that § 288a established a substantive rule of ‘virtually absolute immunity’ for designated IOs and that ‘[s]ubjecting international organizations to restrictive immunity would defeat the very purpose of granting them immunity in the first place’ (pp. 14 and 17).
62 139 S.Ct. at 769.
63 As Rishi Gulati has noted, ‘the conflation of IO and State immunity is conceptually problematic. It is incorrect to equate immunities founded in the sovereign equality of States being the basis of State immunity, with IO immunities, the latter strictly treaty-based and ‘functional’ in nature.’ Gulati, Access to Justice and International Organizations, supra n. 6 at 155–56.
64 Trllium Chang, ‘A Functional Framework To Balance Accountability, supra n. 24, at 129.
65 Indeed, there is some question whether a coherent body of customary international law actually exists in respect of the operation (and privileges and immunities) of international law. See Michael Wood, ‘Do International Organizations Enjoy Immunity Under Customary International Law?’ in Nils Blokker and Nico Schrijver, eds., Immunity of International Organizations Law (2015). Cf. Int’l Law Comm’n, Draft Articles on the Responsibility of International Organizations (26 April-3 June and 4 July-12 August 2011), UN doc. A/66/10, Yearbook of the Int’l Law Comm’n, vol. II, Part Two) and Johan G. Lammers, ‘Immunity of International Organizations: The Work of the International Law Commission’ (2014) 10 Int’l Orgs. L. Rev. 277–78.
66 In fact, a lower court recently addressed, but did not decide, whether under the Jam interpretation of the IOIA, a judgment obtained under the Terrorism Risk Insurance Act of 2002, Pub. L. No. 107–297, 28 U.S.C. § 1610 (note), could be enforced against an international organization. See John Does 1 Through 7 v. The Taliban, Al-Qaeda, and the Haqqani Network, No. 21-mc-00110 (DLF), 2022 WL 4103853 (D.D.C. Sept. 9, 2022).
67 For a different view, see: Fernando Lusa Bordin, ‘To What Immunities are International Organizations Entitled under General International Law? Thoughts on Jam v IFC and the ‘Default Rules’ of IO Immunity’ (Questions of International Law, 5 July 2020) <http://www.qil-qdi.org/to-what-immunities-are-international-organizations-entitled-under-general-international-law-thoughts-on-jam-v-ifc-and-the-default-rules-of-io-immunity/>.
68 In considering such a statute, one question will be whether to replicate the IOIA's approach of giving the Executive discretion to make particular arrangements on an organization-by-organization basis or to follow the FSIA approach of articulating specific standards for general application by the courts in all cases involving international organizations. The latter would seem inappropriate because (i) different organizations address different issues and require different treatment and (ii) unlike IO's, States are not ‘headquartered’ in the United States.
69 Okeke, Jurisdictional Immunities, supra n. 21, at § 325.
70 For a skeptical view on that particular point, see Fernando Lusa Bordin, ‘The Quest for International Legal Status: On Finn Seyersted and the Challenges of Theorizing International Organizations Law’ (2023) 34(1) EJIL 1–26.
71 Consider, for instance, the Broadbent and Mendaro decisions on the one hand, and OSS Nokalva decision, described above.
72 For a discussion of such an option, see Phillip Zunshine, ‘Improving International Organization Accountability: A Proposal Based on the Tobacco Master Settlement Agreement’ (2020) 50 Cal. W. Int’l L.J. 459.