On Jan. 22, President Donald Trump issued executive order 14375, extending privileges and immunities under U.S. law to the Board of Peace, a new international organization, conceived of and promoted by his administration to undertake peace-building operations in Gaza and potentially other areas of the globe experiencing conflict. The privileges and immunities ostensibly granted in the new E.O. would exempt the Board from most forms of lawsuits and judicial process, immunize its property and assets from search, and exempt it from certain forms of taxation. The goal appears to be to provide the Board similar protections to those enjoyed by many other public international organizations, and also those provided to diplomatic and consular missions of foreign states.
However, as I mentioned in a prior piece, there are questions about the President’s authority to extend privileges and immunities to the Board of Peace without further action by Congress. The Trump administration, the Board of Peace, and Congress all should have interests in clarifying the legal basis on which any privileges and immunities are being provided to the Board in connection with its activities in the United States.
Executive order 14375 says that, in providing privileges and immunities to the Board of Peace, the President acted pursuant to “the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1 of the International Organizations Immunities Act (22 USC 288)” (IOIA).
By its terms, however, the IOIA provides authority to the President to extend privileges and immunities to international organizations in which the United States participates “pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation.” Accordingly, the President’s authority to extend privileges and immunities to the Board of Peace under the IOIA depends on whether the United States participates in the Board pursuant to a treaty or an act of Congress authorizing U.S. participation or appropriating money for such participation.
It is at best uncertain that these conditions have been met – much more plausibly, they have not. That said, if the administration wishes to ensure that the Board can operate in the United States with the same tax exemptions and immunities from lawsuits as other international organizations, it is not too late for it to go to Congress to seek legislation establishing a clear legal basis for providing the Board such treatment.
Is the United States participating in the Board pursuant to a treaty?
No. It is clear that the United States is not participating in the Board of Peace pursuant to a treaty. According to a White House announcement, President Trump “formally ratified” the Charter of the Board of Peace at a ceremony in Davos, Switzerland on Jan. 22, the same day on which he signed the Charter. President Trump did not transmit the Charter to the Senate for its advice and consent to ratification as a treaty prior to taking this action.
Is the United States participating in the Board under an applicable Act of Congress?
It does not appear that Congress has passed a statute specifically authorizing participation in the Board of Peace or making an appropriation for such participation. None of the appropriations legislation enacted since the beginning of the Trump administration includes any reference to the Board of Peace, nor does it appear that any other legislation passed by Congress includes such a reference. It’s conceivable that the Trump administration takes the view that some more general statute, or combination of statutes, that do not mention the Board of Peace nonetheless somehow reflect implicit Congressional authorization for U.S. participation in the Board. Evaluating such a claim, however, would require knowing which statutes the administration thought reflected such implicit authorization.
A 1983 opinion by the Justice Department’s Office of the Legal Counsel (OLC) regarding the IOIA’s applicability to the International Criminal Police Organization (INTERPOL) sheds light on how the IOIA’s requirement for statutory authority would typically be satisfied in the case of an organization for which a treaty does not provide for U.S. participation. In finding that U.S. participation in INTERPOL had been authorized by Congress, OLC cited two statutes: 22 USC 263a, which provides that “the Attorney General is authorized to accept and maintain, on behalf of the United States, membership in the International Criminal Police Organization,” and section 21a of Public Law 95-624, which specifically authorized the payment of U.S. membership dues to “the International Criminal Police Organization.” Both of these statutes referred to INTERPOL by name, leaving no room for question that Congress had approved U.S. participation in the organization, and 22 USC 263a was cited in President Reagan’s executive order extending privileges and immunities to INTERPOL.
Consistent with the approach reflected in the INTERPOL executive order, in most cases where a President has relied on a statute authorizing U.S. participation in an international organization to satisfy the IOIA’s conditions for extending privileges and immunities to the organization, the President has cited the statute in the executive order issued to confer the privileges and immunities. For example, the 1997 executive order providing privileges and immunities to the World Trade Organization cites the Uruguay Round Agreements Act, which approved the agreements establishing the WTO. Similarly, a 2007 executive order extending privileges and immunities to the ITER International Fusion Energy Organization cites two statutes authorizing U.S. participation in ITER and appropriations for U.S. contributions to the organization. There are isolated examples in which such executive orders have not cited any statute other than the IOIA. For example, a 2015 executive order providing privileges and immunities to the International Renewable Energy Agency cites only the President’ authorities under the Constitution and laws of the United States and the IOIA.
Executive order 14375 doesn’t cite any statute providing authorization for U.S. participation in the Board of Peace, or appropriating funds for such participation. This leaves uncertain how, and whether, the IOIA’s requirement on this point has been met.
Why is it important to establish the legal basis for the Board’s privileges and immunities?
Both the Trump administration and the Board of Peace should have a strong interest in resolving any doubts about the legal basis for the Board’s privileges and immunities in the United States. One important purpose of establishing privileges and immunities for the Board is to allow it to conduct its peace-building activities free from risk that the Board or its officers or employees may be subject to lawsuits in connection with their work, or that the Board’s property and assets could be subject to attachment. Uncertainty about the legal basis for these protections could make the Board and its officers and employees vulnerable to lawsuits that might try to test the validity of its immunities, including potentially by actors who might have political grievances about aspects of the Board’s work. Even if a court were ultimately to uphold the Board’s immunities, the time and expense of defending them would interfere with the Board’s ability to carry out its mandate.
Congress also has an interest in having the administration clarify the legal basis on which it has acted to provide privileges and immunities to the Board of Peace. The IOIA’s requirement that Congress must authorize U.S. participation in an international organization in order for the organization to be eligible to be granted privileges and immunities gives Congress an important role in deciding when organizations may receive exemptions from U.S. law. Executive branch practice that narrows or eliminates this requirement would diminish Congress’s authority in this area. In addition, to the extent that Congress may consider appropriating funds for contributions to the Board to support its future peace-building work, it may have a stake in the ability of the Board to ensure that those funds will be used for their intended purposes. Congress could consider requiring the executive branch to clarify the legal basis for the Board’s immunities as a condition for any funds it appropriates being made available for contributions to the Board.
What options does Congress have in relation to the privileges and immunities of the Board?
If Congress is supportive of providing privileges and immunities to the Board of Peace, it could resolve any doubts about the legal basis for those privileges and immunities by enacting legislation that clearly authorizes them. Congress has taken similar action in the past to authorize the President to provide privileges and immunities under the IOIA to organizations that did not otherwise meet the IOIA’s criteria. These have included organizations, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, that do not meet the definition of a “public international organization,” and organizations in which the United States does not participate as a member, such as the African Union.
In considering whether the Board of Peace should receive privileges and immunities in the United States, Congress may also want to take into account unique aspects of the Board’s organization. Under the Charter of the Board of Peace, the Board’s Chairman exercises virtually complete control over the Board’s composition and decision-making structure. The Charter designates Donald Trump, by name, to serve as Chairman for an indefinite term, meaning that he can continue in the role even after the end of his term as President. It is unusual for an international organization to be so directly controlled by a single individual, and one who need not be a government official. At least some of the traditional justifications for granting privileges and immunities – including exemptions from the application of U.S. law – to international organizations comprised of sovereign states may not apply with the same force to an organization that is, or can be, substantially controlled by a private individual.
