Subsequently, on April 25, 1979, Justice Calabretta issued an ex parte order, further staying the Secretary's arrest, but restricting his right to travel, and ordering the United States Attorney to monitor his travels, to report thereon to the Court, and to seek a “formal opinion" from the Department of State on the question of immunity. The United States Attorney then obtained a certificate from the Department of State attesting to the Fund Secretary's status as a United Nations employee, as well as a letter from Deputy Legal Adviser James H. Michel, expressing the Department's view that the Pension Fund and its Secretary were entitled to immunity from process (see, post). The letter and the certificate of status were attached to a renewed motion by the United States to vacate the contempt and commitment decisions and orders, a motion which Justice Calabretta denied on August 31, 1979. In addition, the Court directed the United States Attorney "to refer this matter to the Attorney General, who shall, in turn, refer it to the President of the United States" for a ruling on the immunity question pursuant to section 288 of title 22, United States Code.

On appeal by the United States, the Appellate Division of the Supreme Court of New York, Second Judicial Department reversed the order of August 31, 1979, and vacated the prior orders of contempt and commitment. Judge David T. Gibbons ruled on May 19, 1980 that the Special Term had erred in insisting upon proof that the Department of State had passed upon the immunity claim and in ordering the United States Attorney General to obtain a formal opinion on the question. Since the Executive Branch had discontinued making suggestions of immunity, the Court said, courts themselves must resolve claims of immunity upon the basis of the facts before them. In the instant case, the Court continued, the facts established "beyond doubt" that the United Nations Joint Staff Pension Fund and its Secretary were immune from the sequestration order under applicable Federal law.

Following arguments and analysis in the brief submitted by the United States, the Court based its decision on: (1) section 2 of the Convention on the Privileges and Immunities of the United Nations (TIAS 6900, 21 UST 1418), conferring immunity from "every form of legal process", unless insofar as expressly waived, on "[t]he United Nations, its property and assets wherever located and by whomsoever held"; (2) section 18(a) of the same Convention, granting functional immunity to officials of the United Nations, "in respect of words spoken or written and all acts performed by them in their official capacity"; and (3) the International Organizations Immunities Act (22 U.S.C. 288 et seq.), providing that international organizations within the statutory definition and their property and assets wherever located and by whomsoever held, "shall enjoy the same

immunity from suit and every form of judicial process as is enjoyed by foreign governments", except to the extent that such immunity is expressly waived (22 U.S.C. 288a(b)). The Court noted that officers and employees of international organizations, in the absence of waiver, "shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such *** officers, or employees" (22 U.S.C. 288d(b)), and it referred, also, to United States v. Melekh, 190 F. Supp. 67 (1960).

The Court wrote:

The record demonstrates with convincing clarity that the Pension Fund is an organ of the United Nations, subject to regulation by the General Assembly, and that its assets, although held separately from other United Nations property, are the property of that international organization. The funds which Mrs. Shamsee seeks to sequester, therefore, are impervious to legal process under both section 2 of the Convention and section 288a of title 22 of the United States Code (the International Organizations Immunities Act). Furthermore, Mr. Liveran's refusal to pay Pension Fund moneys to Mrs. Shamsee under the seqestration order clearly constituted an act undertaken in his official capacity as Secretary of the Fund, and he is thus shielded from a contempt finding and its consequences by section 17 [sic; 18] of the Convention and by section 288d of title 22 of the United States Code.1 Respondent's contention that the Fund is a commercial entity, distinct from the United Nations proper, does not withstand scrutiny. The very facts adduced to support this argument-that the Fund's offices are located at the United Nations Headquarters, that the United Nations deposits moneys into the Fund and that the Fund's operation is regulated by the General Assembly-only underscore the intimate connection between the Fund and its parent organization.

We note additionally that it was error for Special Term to direct the United States Attorney to refer the matter of immunity to the Attorney General for the purpose of obtaining a "ruling" by the President of the United States pursuant to section 288 of title 22 of the United States Code. That statute grants the President a measure of discretion, to be exercised by "appropriate Executive order", to withhold, withdraw, make conditional or limit the privileges, exemptions and immunities otherwise conferred on an international organization by the International Organizations Immunities Act. Assuming, arguendo, that the court had personal jurisdiction over the United States, we are unable to find in section 288 any mechanism by which the President may be requested to "rule" on questions of immunity which arise in judicial proceedings; nor do we find any basis in the statute for an order in the nature of mandamus to any other Executive Branch officer to "refer" such a matter to the President.

Moreover, since the intervention by the United States to advise the court on a question of immunity is in the nature of a special appearance (cf. Tsiang v. Tsiang, 194 Misc. 259 [1949], . . .), the United States cannot be said to have waived its own sovereign

immunity and thus to have subjected itself to the court's personal jurisdiction.

1 There has been no waiver of immunity in this case. After he was served with the sequestration order, Mr. Liveran determined that in the absence of a Pension Fund regulation authorizing the waiver, he lacked the power to consent to subject the Fund to legal process. The United Nations Administrative Tribunal upheld that determination (U.N. Ad. Trib. Dec. No. 245 [May, 1979]), but recommended that the Pension Fund adopt a rule similar to U.N. Staff Rule 103.18(b)(iii), which provides that the United Nations' privileges and immunities "furnish no excuse to the staff members who enjoy them for non-performance of their private obligations or failure to observe laws and police regulations". . . . Our decision today is, of course, without prejudice to Mrs. Shamsee's rights under the sequestration order, dated December 30, 1976, in the event that a rule permitting waiver is adopted by the Pension Fund Board and the Fund in fact waives its immunity from process.

Dept. of State File P85 0049-1413.

The brief filed by the United States in Shamsee v. Shamsee, Index No. 5800/1975, Appellate Division, Second Department may be found at Dept. of State File No. P85 0080-0655.

The Michel letter, dated Mar. 23, 1979, was quoted in the U.S. brief. It stated:

*

"Mr. Liveran is, therefore, entitled to immunity from suit and legal process relating to acts performed by him in his official capacity and falling within his official functions. Mr. Liveran's determination that assets of the Pension Fund could not be sequestered or paid over to Mrs. Shamsee consistent with the regulations of the Fund and his consequent refusal to obey the sequestration order were, in the view of the Department of State, acts performed by Mr. Liveran in his official capacity.

The immunity of the United Nations Joint Staff Pension Fund is governed by Section 2 of the Convention on the Privileges and Immunities of the United Nations.

The affidavit of Erik Suy, Under-Secretary General and the Legal Counsel of the United Nations testifies to the legal status of the Fund and its relationship to the United Nations. On the basis of Mr. Suy's affidavit, the Department of State is of the view that the Fund is covered by Section 2 of the Convention on Privileges and Immunities of the United Nations."

Dept. of State File No. P86 0054-1457.

See, also, Exec. Order 9698, Feb. 19, 1946, 3 CFR (1943-1948 Comp.), pp. 508-509. Immunity From Employee Discrimination Proceeding

The staff of the General Counsel of the Equal Employment Opportunity Commission sought the views of the Office of the Legal Adviser of the Department of State regarding exercise of jurisdiction in an employee discrimination proceeding that involved the World Bank. They were advised that relevant provisions of domestic and international law, based upon sound policy considerations, precluded the Commission from asserting such jurisdiction. In a letter

to Leroy D. Clark, General Counsel of the Commission, dated June 24, 1980, Roberts B. Owen, Legal Adviser of the Department, confirmed in writing the position previously communicated to the General Counsel's staff. The principal portion of his letter follows:

In the absence of supervening treaty provisions, the privileges and immunities of public international organizations in the United States are governed by the International Organizations Immunities Act of 1945 (Pub. L. 79-291, as amended, 22 U.S.C. §288 et seq.) (the "IOIA"). Section 2(b) of the IOIA, 22 U.S.C. §288a(b), provides that international organizations which have been designated by the President:

"shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract."

The World Bank was designated pursuant to this Act by Exec. Order No. 9751 on July 11, 1946, 3 CFR (1943-48 Comp.) 558.

At the time the IOIA was enacted, foreign governments (and, by virtue of the IOIA, international organizations) were entitled, as a general matter, to absolute immunity from proceedings in our courts. The Foreign Sovereign Immunities Act of 1976 (Pub. L. 94-583, 28 U.S.C. §§1330, 1602 et seq.) (“FSIA") amended our law by codifying a more restrictive theory of immunity subjecting foreign states to suit in U.S. courts in respect of their commercial activities (acts jure gestionis), while continuing their exemption from U.S. jurisdiction for sovereign or governmental activities (acts jure imperii). By virtue of the FSIA, and unless otherwise specified in their constitutive agreements, international organizations are now subject to the jurisdiction of our courts in respect of their commercial activities, while retaining immunity for their acts of a public character.

The U.S. Court of Appeals for the District of Columbia has recently held that disputes arising from the employment relationships between an international organization and its staff members are not "commercial" in nature and, absent a waiver, are therefore not subject to judicial review. See Broadbent v. Organization of American States, . . . [628 F.2d 27 (D.C. Cir. 1980)]. This decision was fully consonant with the views of the United States Government as presented amicus curiae in the litigation. A copy of the Government's brief on the issue is enclosed for your information. In our view, the ruling in Broadbent is binding upon the administrative agencies of the U.S. Government as well as upon the judicial branch and precludes the Commission from asserting jurisdiction in such cases.

Article VII(3) of the World Bank's Articles of Agreement1 does not, in our judgment, constitute a waiver of immunity in respect of employment disputes. That Article provides as follows:

"Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of

accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank."

The language of the Article does not specify the exact scope of actions which may properly be brought against the Bank under its provisions. However, at the time the Articles of Agreement were negotiated, Article VII(3) was intended as a limited waiver of immunity specifically to permit suits by private lenders against the Bank in connection with the Bank's issuance of securities, and to specify the venue for such actions, in order to facilitate the Bank's access to capital markets. Cf. Restatement (Second), Foreign Relations Law of the United States, §84, Reporter's Note at 275 (1965). It was not designed (and should not now be construed) to subject the Bank to the full range of our domestic jurisdiction or to expose the Bank's internal personnel and administrative actions to review by our courts and administrative agencies.2

That questions relating to the employment relationships between the Bank and its internal staff are and were intended to be beyond the jurisdiction of Member States is apparent, we believe, from the other relevant provisions of the Articles of Agreement. In particular, Article V(5) explicitly vests responsibility for "the organization, appointment and dismissal of the officers and staff" of the Bank in its President, subject only to the general control of the Executive Directors. Subsection 5(c) of the same Article provides that in the discharge of their official duties, the President, officers and staff of the Bank owe their duty "entirely to the Bank and to no other authority." It also states that "[e]ach member of the Bank shall respect the international character of this duty and shall refrain from all attempts to influence any of them in the discharge of their duties." These provisions were carefully crafted to insulate the Bank's administrative and personnel processes from interference by individual Member States, which are legally bound by their proscriptions. They cannot in our view be read consistently with an interpretation of Article VII(3) which would permit unilateral actions to regulate those processes or pass judgment upon specific_decisions by the Bank's officers in the course of their duties. In any event, the explicit prohibition in Article VII(3) against actions by "members or persons acting for or deriving claims from members" would preclude the U.S. Government, or any of its agencies, from commencing such proceedings.

There are sound practical considerations which fortify these conclusions. To effectively carry out their responsibilities in the interests of all their members, public international organizations must have a considerable degree of autonomy in personnel matters. Unlike domestic entities, they operate in a unique multilateral environment, typically drawing their staff members from among their constituent Member States. In many cases they are required to take regional and geographical considerations into account in order to ensure balanced national representation.3 The resulting