A Rules-Based Approach to Jam’s Restrictive Immunity: Implications for International Organizations
44 Pages Posted: 20 Apr 2020 Last revised: 2 Nov 2020
Date Written: March 24, 2020
U.S. jurisprudence has granted international organizations immunity from suit, even when they carry out operations that violate U.S. rules. In the recent Jam v. Int’l Fin. Corp., the Supreme Court reversed this jurisprudence and restricted the immunity of international organizations. Jam is a landmark decision, but the Court’s failure to address critical questions concerning the scope and meaning of its restricted immunity has led to legal uncertainty and criticism. Under both predominant theories in the international organization discourse – functionalism and constitutionalism – scholars predict that Jam will have a deleterious impact on international organizations. Given the theories’ emphasis on the abstract rather than practical, this Article finds neither particularly insightful. Applying international organizations’ rules governing their operations and immunities as well as U.S. federal rules governing contracts, jurisdiction, and procedure, this Article also disagrees with their predictions of Jam’s implications for international organizations. To examine those implications, it applies an alternative, rules-based approach to a hypothetical suit brought against an international organization by foreign workers. It concludes that Jam’s theory of restrictive immunity will apply only to a narrow category of organizations and to an even narrower category of activities. More importantly, the organization whose rules and activities will be most affected, the international financial institution, should never have enjoyed jurisdictional immunity in the United States to begin with. This Article further concludes that Jam’s indirect implication, largely overlooked by the scholarship, is that it has catalyzed international organizations to take preventative measures, thus deterring violations of rules in the first place.
Keywords: International Law, International Organizations, Jurisdictional Immunity, Commercial Acts Exception, Constitutionalism, International Labor Rights
JEL Classification: J50, J58, J80, J88, J89, O01, O02
Suggested Citation: Suggested Citation