Immunity from Suit for International Organizations: The Judiciary's New Que of Separating Lawsuit Sheep from Lawsuit Goats

Abstract:In 1945, the United States Congress enacted the International Organizations Immunities Act (IOIA). Section 288a(b) of the act grants international organizations "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments." The ensuing issue has been whether "the same immunity" means the immunity enjoyed in 1945, or whether it has evolved together with the body of law on sovereign immunity.In Jam v. Int'l Finance Corp, 586 U.S. (2019), the U.S. Supreme Court was finally asked to decide this issue, resolving a split in the federal circuits. The Court held that the immunity enjoyed by international organizations is that immunity which is enjoyed by foreign governments pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA).This article reaches two conclusions: first, a static interpretation more accurately reflects the context, purpose, consequences, and history of the IOIA. Second, if the reference to the same immunity is taken to mean a reference to the body of law on sovereign immunity, it is nonetheless a reference to the general rule of absolute immunity, which is now codified as a presumptive (or default) rule in § 1604 of the FSIA.