Deconstructing International Organization Immunity

Article excerpt

TABLE OF CONTENTS

  I.  INTRODUCTION
 II. DOCTRINAL DEVELOPMENT AND DIVERGENCE
     A. Pre-FSIA Immunity for Foreign Entities
        1. Effect of the IOIA (Pre-1945 and 1945-1952)
        2. Effect of the Tate Letter (1952-1976)
     B. Post-FSIA Split
        1. Granting Absolute Immunity
        2. Restricting Immunity
III. DOES THE TEXT OR THE LEGISLATIVE HISTORY OF THE IOIA OR
     THE FSIA SHOW THAT CONGRESS INTENDED TO INCORPORATE
     CHANGES TO THE IMMUNITY OF INTERNATIONAL
     ORGANIZATIONS?
     A. Does the Text of the IOIA or the FSIA Indicate Congressional
        Intent?
     B. Does Legislative History Provide Any Indication of
        Congressional Intent?
        1. Legislative History of the IOIA
        2. Legislative History of the FSIA
        3. Subsequent Legislation
 IV. OTHER SOURCES OF LAW MAY PROVIDE PRIVILEGES AND
     IMMUNITIES FOR INTERNATIONAL ORGANIZATIONS IN U.S.
     COURTS
     A. International Agreements
     B. Other Legislative and Administrative Action
     C. Common-Law Doctrines
     D. Customary International Law
  V. CONCLUSION

I. INTRODUCTION

Janet Atkinson went through an acrimonious divorce from Robert Kestell. (1) Kestell moved to Jamaica and refused to pay alimony and child support. (2) Had Kestell been working for a private firm, Atkinson would probably have been able to execute a Maryland state court's judgment in her favor by garnishing his wages. (3) Unfortunately for Atkinson, Kestell was working for an international organization, the Inter-American Development Bank (IDB). 4 The D.C. Circuit concluded that the IDB is entitled to absolute immunity and that Atkinson's action to garnish Kestell's wages could not proceed. (5)

This Note discusses how the D.C. Circuit arrived at this decision and whether it remains appropriate based on the statutes involved and recent Supreme Court jurisprudence.

In the United States, public international organizations (6) derive privileges and immunities from a variety of sources of law. Many, including the IDB, (7) are covered by the International Organizations Immunities Act of 1945 (IOIA). (8) Some others, such as the United Nations, have privileges and immunities based on the instrument that creates them (9) or based on international agreements in which the United States participates. (10) Still other international organizations have been granted privileges and immunities by specific statutory or administrative authority. (11) Finally, public international organizations might benefit from common-law doctrines and customary international law. (12)

The IOIA provides that certain international organizations "shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments." (13) When the IOIA was enacted, foreign sovereigns generally had "absolute immunity" in U.S. courts, meaning simply that a foreign state could not be sued. However, since at least the mid-1940s, the international community, including the United States, has clarified exceptions to foreign sovereign immunity, allowing some suits against foreign states; this practice of "restrictive immunity" was codified in the Foreign Sovereign Immunities Act of 1976 (FSIA). (14) To the consternation of some commentators (15) and would-be plaintiffs, 16 courts have generally continued to grant absolute immunity to international organizations covered by the IOIA--effectively exceeding the level of protection enjoyed today by foreign governments. (17)

This Note explores whether the 1945 Congress intended the IOIA to incorporate developments in the doctrine of foreign sovereign immunity, whether the 1976 Congress intended the FSIA to cover international organizations, and, if the FSIA does not apply, what privileges and immunities international organizations may have under the IOIA and other sources of law.

Part II of this Note describes the development of foreign sovereign immunity and the privileges and immunities granted to international organizations, and the divergence of these areas of law. …