U.S. Immunity of International Organizations Since Jam v. IFC: New Challenges and Opportunities
June 14, 2023
In 2019, the Supreme Court reset the U.S. law of immunities for international organizations with its landmark judgment in Jam v. International Finance Corporation. That case overturned the long-held understanding that the International Organizations Immunities Act (IOIA), 22 U.S.C. §§ 288 et seq., entitled international organizations designated under it to virtually absolute immunity from U.S. courts. Instead, the Court limited the immunity of international organizations under the IOIA to the immunity afforded to foreign states, mainly through the Foreign Sovereign Immunities Act (FSIA)—including its exceptions for commercial activities and torts carried out in the United States.
Federal court decisions in the past four years have begun to clarify Jam’s implications for international organizations. Importantly, because Jam tethers international organizations’ immunity to that of foreign states, key decisions with respect to foreign state immunity—including another landmark Supreme Court decision in April in Halkbank v. United States—may also now bear on the immunity of international organizations. Here, we revisit Jam and subsequent cases affecting immunity under the IOIA, and we recommend steps that all international organizations should take in this new legal landscape.
Notably, Jam did not displace other sources of immunity that international organizations in the United States may enjoy. For example, the United Nations is entitled to immunity not only under the IOIA but also the Convention on the Privileges and Immunities of the United Nations (known as the General Convention) and its headquarters agreement with the United States. The United Nations thus still enjoys virtually absolute immunity from both civil and criminal liability in the United States. For international organizations outside the General Convention’s scope—including U.N. specialized agencies and international organizations not affiliated with the United Nations—the question of sources of immunity outside the IOIA is more complicated. (The United States is not party to the 1947 Convention on the Privileges and Immunities of the Specialized Agencies.)
IOIA Immunity Since Jam
Jam arose out of environmental degradation allegedly caused by a power plant in India. Local farmers and anglers sued the International Finance Corporation (IFC), an arm of the World Bank, for damages associated with the degradation because the IFC had provided a loan to partially fund the project. The suit was brought in the United States District Court for the District of Columbia. The IFC argued that its designation under the IOIA afforded it absolute immunity from suit in U.S. courts.
The Supreme Court disagreed. By eight votes to one, the Court interpreted 22 U.S.C. §§ 288a(b) of the IOIA as “grant[ing] international organizations the ‘same immunity’ from suit ‘as is enjoyed by foreign governments’ at any given time. Today, that means that the [FSIA] governs the immunity of international organizations.”
FSIA Exceptions
Since Jam, federal courts have considered claims against international organizations under two of the FSIA’s exceptions.
First is the exception for “commercial activity carried on in the United States”—the exception on which the Jam plaintiffs relied. On remand, the U.S. Court of Appeals for the D.C. Circuit found that the plaintiffs’ claim did not fall within that exception. The court relied on FSIA precedent to find that the “gravamen” of IFC’s alleged conduct did not occur in the United States. A federal district court in the District of Columbia reached the same conclusion in a similar 2019 case against the World Bank arising out of the construction of a dam in China.
Second is the exception for “injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission” of an international organization, or its officials or employees acting in their official capacity—commonly called the “non-commercial tort exception.” In 2021, in Kling v. World Health Organization, a federal district court in the Southern District of New York dismissed a class action against the World Health Organization (WHO) alleging negligence in its response to the COVID-19 pandemic. The court found WHO immune under the IOIA on two grounds: because the alleged tortious conduct did not occur in the United States, and because WHO’s response involved policy judgments not within the scope of the exception.
The court did not address WHO’s argument that, independent of the IOIA, there exists a basis for WHO’s immunity under the WHO Constitution—a treaty to which the United States is party—which WHO argued constitutes a congressional-executive agreement that is enforceable in U.S. courts. (Debevoise represented WHO in the Kling case.) In March 2022, the D.C. Circuit held in Rodriguez v. Pan American Health Organization that the immunity clause of the WHO Constitution is not self-executing and therefore not directly applicable before U.S. courts, absent implementing legislation. In so doing, the D.C. Circuit did not address the point that the WHO Constitution, as a congressional-executive agreement, does not need such implementing legislation to be effective. (Debevoise also represents WHO as intervenor in Rodriguez.) Together, Jam and Rodriguez thus may narrow the grounds on which some international organizations may be able to assert immunity by making the IOIA the sole option. The Rodriguez case is currently on remand to the district court, and the Pan American Health Organization continues to assert immunity under the IOIA.
Criminal Liability
The Supreme Court’s April 2023 decision in Halkbank v. United States may also be relevant to international organizations’ immunity under the IOIA.
The Court held in Halkbank that “the FSIA does not grant immunity to foreign states or their instrumentalities in criminal proceedings.” Critically, the Halkbank holding is categorical, meaning that prosecutors need not prove a valid exception to immunity—such as for commercial activity—as plaintiffs do in the civil context. Halkbank is not, however, the federal courts’ final word on immunity of foreign states from prosecution. The Supreme Court remanded the case back to the Second Circuit court of appeals to consider whether foreign states are entitled to criminal immunity under federal common law—a question that, as Ingrid (Wuerth) Brunk has written, presents “complex and potentially far-reaching issues of judicial and executive power” and international law.
Although Halkbank concerned a state-owned entity and does not mention international organizations, the Court’s holding in Jam that international organizations are entitled to the same immunity as foreign sovereigns under 22 U.S.C. § 288a(b) raises the possibility that the Court’s interpretations of the FSIA in Halkbank may apply equally to the IOIA. Jam did not, however, limit other provisions of the IOIA that may afford it at least some protection from criminal investigation or prosecution—such as immunity from search and the inviolability of archives in § 288a(c).
The answer to the common-law question that the Supreme Court remanded may also bear on the immunity of international organizations. Although Jam focused on the relevance of the FSIA to international organizations, the Supreme Court also held that the IOIA’s grant of immunity “enjoyed by foreign governments” is an instruction to “look up the applicable rules of foreign sovereign immunity, wherever those rules may be found—the common law, the law of nations, or a statute.” Accordingly, the courts’ determination of the rules of foreign state immunity existing in federal common law—which incorporates customary international law—may bear on international organizations’ immunity as well.
In the meantime, Halkbank may have significant implications for international organizations that rely on the IOIA for their immunity in the United States. Halkbank arose out of criminal prosecution of a Turkish state-owned bank for alleged violations of U.S. economic sanctions. Such sanctions typically operate globally, meaning that they could apply to international organizations with no presence in the United States.
One area of particular concern for international organizations is U.S. sanctions programs of the kind at issue in Halkbank. Although many U.S. sanctions come with general licenses for humanitarian work or other activities of international organizations, some do not. For example, during the final months of the Trump administration, the United States designated Yemen’s Ansar Allah, also known as the Houthis, as a Foreign Terrorist Organization under 8 U.S.C. § 1189(a)(1), thus triggering a raft of economic and criminal sanctions on that group and anyone providing or conspiring to provide them “material support or resources”—with no exception for international organizations. The Biden administration withdrew the designation in February 2021, but were it to have remained in effect, those criminal sanctions would have seriously complicated the delivery of humanitarian assistance to areas under Houthi control, as well as U.N.-brokered peace talks involving Houthi leaders.
Recommended Steps for International Organizations
As we noted over at Just Security last June, counsel for international organizations should continue to track and engage with developments in privileges and immunities law in key national jurisdictions where these organizations may be vulnerable. The United States has become such a jurisdiction for many international organizations because of their presence there; their storage of electronic data on U.S. servers; their interactions with the United Nations in New York; the global reach of U.S. economic sanctions; and the expansion of exceptions under the IOIA.
Counsel for international organizations might also consider filing amicus briefs in cases that touch on their interests. As federal courts work through issues following Jam, international organizations can work collectively to protect their interests by taking clear, unified, and coherent positions on outstanding issues.
International organizations should also assess their exposure to criminal liability following Halkbank. This would include auditing applicable U.S. sanctions regimes in contexts where international organizations operate to ensure that they have licenses covering the full scope of their activities, such as providing humanitarian assistance or development financing.