International organizations play critical roles in upholding the rule of law in their areas of expertise—from managing global crises like climate change or the coronavirus pandemic, to more quotidian issues such as telecommunications and civil aviation. Their work evidently requires coordination and consultation among myriad international, regional, and national stakeholders. It also exposes them and their officials to uniquely global risks.
The principal legal mechanism to ensure that international organizations can pursue their objectives independently and efficiently is to accord them certain privileges and immunities in respect of their official functions. Many international organizations, in turn, establish internal accountability mechanisms to address complaints that otherwise may have gone to national courts.
The precise nature of international organizations’ privileges and immunities varies by jurisdiction, function, and legal instrument. For example, the Convention on the Privileges and Immunities of the United Nations (known as the General Convention) grants the U.N. and its employees immunity from legal process; provides that its premises, property, and assets shall be immune from confiscation or any other form of interference; and permits the U.N. freely to hold, transfer, and convert its funds. A similar treaty exists for the U.N. specialized agencies. Founding treaties of many other international organizations also extend privileges and immunities in more general terms.
But although international organizations’ privileges and immunities are important, the protection they offer is incomplete. Many countries have not incorporated the full range of international organizations’ privileges and immunities into national law; others have deliberately violated them. Even in jurisdictions that afford international organizations their full measure of privileges and immunities as a matter of law, they may receive scrutiny from law enforcement officers unfamiliar with those protections. And, of course, international organizations also face operational threats that their privileges and immunities cannot prevent. Here we address (i) trends in international organizations’ risk environment and (ii) what international organizations can do in response.
I. International Organizations’ Changing Risk Environment
Although each organization’s risk profile will depend on factors such as its area of expertise, the source of its privileges and immunities in a particular jurisdiction, and its legal personality under international or national law, recent years have seen five troubling trends.
Targeting of experts. Governments around the world have targeted, threatened to target, or failed to protect experts that international organizations have sent on mission to their territory. In 2019, the Saudi government monitored the phone of a member of the Human Rights Council’s Group of Eminent Experts in Yemen using the Pegasus spyware. Also in 2019, the Tunisian government detained an expert appointed by the Security Council on charges of espionage, which remain pending despite a U.N. finding that they are arbitrary in part due to his entitlement to privileges and immunities. (We represented the expert in those proceedings.) Most tragically, in 2017, two experts appointed by the Security Council were abducted and killed while on mission in the Democratic Republic of the Congo. These attacks come in addition to official efforts to block the work of U.N. experts on sanctions (Somalia, South Sudan); human rights (Israel, Myanmar); public health (China); and chemical weapons (Syria), as well as threats from now-Governor Greg Abbott of Texas, then the state attorney general, to arrest election observers from the Organization for Security and Co-operation in Europe during the 2012 U.S. presidential election.
Cyberattacks. Like all entities that hold electronic data, international organizations face rising threats of cyberattacks for such nefarious purposes as holding an organization’s data for ransom, disrupting its activities, or gathering information about specific persons or groups of persons. Recent attacks exposing sensitive data held by international organizations underscore the seriousness of these risks.
Work with individuals or entities subject to sanctions. Terrorism or other designations that trigger sanctions against designated groups could complicate international organizations’ productive engagement with those stakeholders. For example, the Trump administration’s designation of Yemeni political movement Ansar Allah as a “foreign terrorist organization” criminalized providing “material support” to that group. (The Biden administration later revoked the designation.) Although the U.N.’s privileges and immunities likely shielded it from enforcement of criminal penalties against it or its employees, the designation could have had serious consequences for other international organizations without such privileges and immunities involved in Yemen peace talks. New threats to international organizations’ operations could emerge as the United States reevaluates its relationship with Ansar Allah, the Taliban, and other groups.
Siphoning humanitarian aid. In search of supplies and cash to support its war effort, President Bashar al-Assad’s regime in Syria has taken to redirecting U.N. assistance from rebel-held areas to government-run hospitals and removing critical supplies from medical shipments. The Central Bank of Syria has also been manipulating the exchange rate that U.N. programs receive to operate in the country, with up to 51 cents on the dollar making its way into the regime’s coffers. The U.N. has long maintained in disputes with Member States that its aid consignments are immune from government interference, and that Member States must afford U.N. agencies the most favorable legal rate of exchange into their national currency.
New exceptions to old protections in the United States. As international organizations face more stressors to their global operations, they also enjoy less robust immunities in the United States—a key jurisdiction given many international organizations’ physical presence through headquarters or other offices in New York or Washington.
Specifically, the U.S. Supreme Court recently interpreted the International Organizations Immunities Act of 1945 (IOIA)—the principal federal statute governing international organizations’ immunities—to be less generous than it was long thought to be. Since 1945, the IOIA was understood to afford international organizations designated under that Act, including the U.N. and its specialized agencies, virtually absolute immunity from suit in U.S. courts. In 2019, however, the Court held in Jam v. International Finance Corporation that the exceptions to foreign state immunity in the Foreign Sovereign Immunities Act (FSIA) apply equally to the IOIA. Although designated international organizations still enjoy robust protections under the IOIA, the ruling does expose international organizations to new types of claims regardless of their legal merit.
Specifically, international organizations may no longer be immune from suit under the IOIA for (1) commercial activities carried out in the United States; (2) noncommercial tort cases involving personal injury or death or damage to or loss of property occurring in the United States; (3) claims involving property taken in violation of international law; (4) allegations that the international organization provided material support to a U.S.-designated state sponsor of terrorism; and (5) cases in which the international organization implicitly waived its immunity.
Lower courts are exploring the contours of these exceptions, but the need for international organizations to defend against them at all marks a substantial shift in U.S. privileges and immunities law—a significant global development given the links that many international organizations have to the United States.
A recent decision from the Court of Appeals for the D.C. Circuit underscores the high stakes for international organizations’ privileges and immunities under U.S. law. In Rodriguez v. Pan American Health Organization, a three-judge panel held in March that the privileges-and-immunities clause of the Constitution of the World Health Organization (WHO) was not self-executing and therefore not directly applicable before U.S. courts, absent implementing legislation. (On May 26, 2022, the appellate court denied the Pan-American Health Organization’s motion for rehearing and rehearing en banc, as well as WHO’s motion for leave to submit a supporting amicus brief. Our practice at Debevoise & Plimpton LLP represented WHO as intervenor in that case, as well as in successfully asserting its immunities in Kling v. World Health Organization.)
II. What International Organizations Can Do
International organizations and their members can take concrete steps to address these risks.
Risk-mitigation planning. International organizations should ensure that their risk-mitigation plans address emerging threats to their global operations. In particular, international organizations should do everything they can to ensure the protection of sensitive data and to understand their liability in the event of a data breach. Mitigation plans should also account for particular threats in countries where the international organization has a physical presence or regularly conducts operations, including litigation risk in the United States.
Bolstering statutory immunity. International organizations and their members should work to extend statutory privileges and immunities to organizations that do not yet enjoy them in a national jurisdiction where they are vulnerable. For example, qualified international organizations that have not received designation under the IOIA in the United States or the International Organisations Act 1968 in the United Kingdom could seek to engage the robust protections available under those acts, Jam notwithstanding.
Pursuing international accountability. International organizations and their member states should consider legal avenues for holding states accountable under international law when they violate the privileges and immunities of an organization, employee, or expert. The U.N. International Law Commission’s decision on May 17, 2022, to study the settlement of international disputes to which international organizations are parties signals a welcome effort that could helpfully clarify the avenues and forms of relief available to international organizations.
For example, Section 30 of the General Convention provides that U.N. Member States may refer “differences” with another Member State to the International Court of Justice (ICJ). Donors to affected U.N. programs, for example, could consider filing an application against states that have interfered with those programs. Section 30 further provides that the U.N. itself may refer a “difference” with a Member State to the ICJ via a request for an advisory opinion in accordance with the ICJ Statute and that the parties “shall . . . accept” the opinion as decisive.
A U.N. organ has twice requested an advisory opinion pursuant to Section 30 of the General Convention. In both cases, the U.N.’s 54-member Economic and Social Council (ECOSOC) submitted the request arising out of Member State interference with the mandates of special rapporteurs of the former Commission on Human Rights (CHR), leading to favorable outcomes. That avenue is more challenging today, however: the Human Rights Council (HRC), which assumed the CHR’s remit in 2006, is a subsidiary organ not of ECOSOC but of the General Assembly. Because the HRC is not yet authorized to request ICJ advisory opinions, such a request would have to come from the General Assembly as a whole. Member States should consider authorizing the HRC to request advisory opinions by General Assembly resolution pursuant to Article 96 of the U.N. Charter, which would make it easier for the Council to seek accountability for interference with the work of its mandate holders.
Monitoring and intervening in developments in key national jurisdictions. Counsel for international organizations should track and engage with developments to privileges and immunities law in key national jurisdictions where they may be vulnerable. International organizations with a presence in the United States, for example, should keep an eye on U.S. court cases that invoke post-Jam exceptions to the IOIA or implicate other questions of U.S. privileges and immunities law. Counsel might also consider filing amicus briefs in cases that touch on their interests. Lower federal courts are working through the implications of the Supreme Court’s 2019 ruling, and it will be important for international organizations to present clear, unified, and coherent positions on outstanding issues.
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The need for multilateral cooperation on global challenges has never been greater, and international organizations are making critical contributions at the forefront of their fields. The international community should take steps now to shore up organizations’ defenses so that they can focus on achieving the objectives with which their member states have tasked them.
 Kling v. World Health Organization, 532 F. Supp. 3d 141 (S.D.N.Y. 2021) (granting defendant’s motion to dismiss based on WHO’s immunities under U.S. law). The Debevoise team included Donald Francis Donovan, Catherine Amirfar, Natalie L. Reid, Elizabeth Nielsen, Matthew D. Forbes, Alyssa T. Yamamoto, and Sebastian Dutz.