International Organizations Issues

International Organizations in 2013 (Continuation)

United States views on international law [1] in relation to International Organizations: I. The UN Is Immune From “Every Form of Legal Process” Under the General Convention Unless The UN Itself Expressly Waives Its Own Immunity.

Plaintiff repeatedly, and mistakenly, argues that the UN’s immunity is qualified, and further that the UN has somehow impliedly or constructively waived its immunity. See, e.g., Opp. to SOI at 6, 13. That is not the case. The Convention on Privileges and Immunities of the United Nations, adopted Feb. 13, 1946 21 U.S.T. 1418, 1 U.N.T.S. 16 (“General Convention”), plainly states that “[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” General Convention, art. II, sec. 2 (emphasis added). The U.S. Government and an unbroken line of U.S. judicial decisions have interpreted this language to mean precisely what it says: namely, that the UN, including the UNDP, is absolutely immune from all legal process unless the UN, and the UN alone, “expressly” waives its immunity in a particular case. See Boimah v. United Nations General Assembly, 664 F.Supp. 69, 71 (E.D.N.Y. 1987) (“Under the [General] Convention the United Nations’ immunity is absolute, subject only to the organization’s express waiver thereof in particular cases.”); Brzak v. United Nations, 551 F. Supp. 2d 313, 318 (S.D.N.Y. 2008) (“[W]here, as here, the United Nations has not waived its immunity, the General Convention mandates dismissal of Plaintiffs’ claims against the United Nations for lack of subject matter jurisdiction.”), aff’d, Brzak v. United Nations, 597 F.3d 107, 112 (2d Cir. 2010); Sadikoglu v. UN Development Programme, No. 11-Civ-0294 (PKC), 2011 WL 4953994 at * 3 (S.D.N.Y. Oct. 14, 2011) (ruling that “because UNDP — as a subsidiary program of the UN that reports directly to the General Assembly — has not waived its immunity,” the General Convention “mandates dismissal . . . for lack of subject matter jurisdiction”); see also SOI at 4-5. Therefore, because the UN has not waived its immunity, Plaintiff’s suit against the UN should be dismissed.

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Ignoring the clear language of Article II, Section 2 of the General Convention, Plaintiff contends that the General Convention provides only qualified immunity for the UN. See, e.g., Response to SOI at 12; Opp. to MTD at 22-23. Specifically, he argues that, pursuant to Section 29 of the General Convention, the UN’s alleged failure to provide an adequate settlement mechanism for his contract dispute has resulted in a constructive waiver of the UN’s immunity. Id. Plaintiff is mistaken. Section 29 merely requires the UN to “make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” General Convention, art. VIII, sec. 29(a). “[N]othing in this section,” however, “or any other portion of the [General Convention] refers to or limits the UN’s absolute grant of immunity as defined in article II [of the General Convention] — expressly or otherwise.” Sadikoglu, 2011 WL 4953994 at *5. For this reason, the United States District Court for the Southern District of New York ruled in the Sadikoglu case, which also involved a contract dispute, that “any purported failure of UNDP to submit to arbitration or settlement proceedings does not constitute a waiver of its immunity.” Id. Similarly, the Second Circuit in Brzak rejected the argument “that purported inadequacies with the United Nations’ internal dispute resolution mechanism indicate a waiver of [ ] immunity[;] crediting this argument would read the word ‘expressly’ out of the [General Convention].” Brzak, 597 F.3d at 112. As these decisions demonstrate, when the UN does not expressly waive its own immunity in a particular case, as it has not done here, then it is immune under the General Convention “from every form of legal process[,]” General Convention, art. II, sec. 2, including this lawsuit. In any event, the fact that Plaintiff has not been able to resolve his dispute with the UN does not establish that the UN’s dispute resolution mechanisms are inadequate. Further, the UN has stated that it has had extensive discussion with Plaintiff concerning his grievances and remains open to continued discussions. See February 26, 2013 Letter from Patricia O’Brien, Under-SecretaryGeneral for Legal Affairs, to Ambassador Rice (Exhibit A).

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Plaintiff incorrectly asserts that the Secretary-General has a duty to waive the UN’s immunity under the General Convention. Opp. to MTD at 24-25; Resp. to SOI at 11. In support, he quotes from Article 20 of the General Convention, which states that the Secretary-General “shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.” Resp. to SOI at 11 (quoting General Convention, art. V, sec. 20). This section addresses the Secretary-General’s authority to waive the immunity of UN officials, rather than the UN itself, and is clearly discretionary.

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II. Because The UN Is Immune, Plaintiff Is Mistaken That The UN Is Required To Submit To Service Of Process, Answer Plaintiff’s Complaint Or Provide Sworn Testimony.

Plaintiff argues that the UN has failed to provide “good cause” for refusing to submit to service of process, Resp. to SOI at 9, and that the UN is obligated to answer his Complaint and provide sworn testimony in response to his allegations, id. at 7-8. Plaintiff’s position is at odds with every U.S. judicial decision addressing the UN’s immunity under the General Convention.

The General Convention’s extension of the UN’s immunity to “every form of legal process” quite clearly includes service of process. See Askir v. Boutros-Ghali, 933 F. Supp. 368, 369 (S.D.N.Y. 1996) (dismissing suit against UN on the basis of immunity where plaintiff sought an order directing the U.S. Marshal to serve the UN). Nor is there any requirement for the UN to answer Plaintiff’s Complaint, provide sworn testimony, or take any other affirmative steps in order to enjoy immunity from suit. Under Article II, Section 2 of the General Convention, unless the UN affirmatively waives its immunity from suit in a particular case, it is absolutely immune. Here, there are no allegations and no evidence whatsoever that the UN has waived its immunity. See, e.g., De Luca v. United Nations Org., 841 F. Supp. 531, 533 (S.D.N.Y.1994) (“Plaintiff has not alleged that the U.N. has expressly waived its immunity in this instance and no evidence presented in this case so suggests. Finding the U.N. to be immune from plaintiff’s claims, we dismiss them.”).

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International Organizations in the Digest of United States Practice in International Law

International Organizations Issues

International Organizations Issues

International Organizations in 2013 (Continuation)

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