Academic journal article Texas Law Review

The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity under the IOIA *

Academic journal article Texas Law Review

The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity under the IOIA *

Article excerpt

Introduction

As the world has grown increasingly interconnected over the past century, issues that were once addressed nationally now represent international concerns. Professor Niels Blokker has described the issue thusly: "An increasing number of State functions can no longer be performed in splendid isolation. World trade, sustainable development, human rights, not to forget the maintenance of peace and security, have all outgrown the national legal order and have become the subject of international regulation."1

Indeed, hundreds of international organizations have emerged since the end of the Second World War to address the numerous areas requiring international cooperation. Though comprised solely of sovereign nations, these international organizations are recognized as having distinct legal personalities. Accordingly, much thought has been devoted to implementing laws that assist these organizations in fulfilling their lofty goals.

In the United States, the International Organizations Immunities Act of 1945 (IOIA) grants international organizations "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments."2 However, two circuit courts are split concerning whether subsequent changes in the law of foreign sovereign immunity should be reflected in the IOIA.3 Consequently, international organizations may be entitled to either the absolute immunity afforded to foreign states in 1945 or the restrictive immunity afforded to foreign states today. This Note will argue that Congress intended for the IOIA to incorporate changes in foreign sovereign immunity and that the purposes of international organizations are best served by restrictive rather than absolute immunity.

It is well established under international law that an international organization should enjoy such immunity as is "necessary for the fulfilment of the purposes of the organization."4 In the United States, however, international organizations enjoy far more immunity than that-the D.C. Circuit, which has venue over the majority of suits filed against international organizations,5 has ruled that such organizations are entitled to absolute immunity under the IOIA.6 Accordingly, international organizations are generally entitled to greater immunity in U.S. courts than foreign governments. However, there exists one prominent exception-the Third Circuit has held instead that the IOIA incorporated subsequent changes in the law of foreign sovereign immunity, most notably the Foreign Sovereign Immunities Act of 1976 (FSIA).7 Thus, in the Third Circuit, international organizations may be subject to jurisdiction for claims arising out of their commercial activities, tortious actions, or violations of international law.

In Part I, this Note discusses the theoretical foundations and history of international organization immunity as well as the scope of foreign sovereign immunity prior to and after the enactment of the IOIA. Part II outlines the current split between the D.C. Circuit and Third Circuit regarding the level of immunity provided to international organizations under the IOIA. Also introduced in Part II is the current standard for waiver of immunity under the IOIA. In Part III, the Note concludes with an argument for why international organizations should not be entitled to absolute immunity and why a system of restrictive immunity would produce a more preferable outcome. Changes to the standard for waiver and various policy proposals are offered as additional methods for reining in the amount of immunity currently enjoyed by international organizations. Additionally, the varying approaches taken by Austria, Italy, and the United Kingdom regarding international organization immunity are briefly discussed.

I. Historical Underpinnings of International Organization Immunity

A.The Genesis of International Organizations

A small number of international organizations began emerging as far back as the early nineteenth century. …

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