Hunter v. United Nations and UNICEF

Ms Hunter, a former employee of the United Nations Children Fund (UNICEF), filed a petition to the New York State Division of Human Rights against the United Nations and UNICEF, claiming that the latter had terminated her employment on a discriminatory basis. The petition was rejected for lack of jurisdiction. Ms Hunter filed an application to the Supreme Court of the State of New York for the review of the order issued by the Division of Human Rights. Before the Court, the applicant argued that the Headquarters Agreement, concluded between the United Nations and the United States, provides that no form of racial or religious discrimination shall be permitted within the headquarters district.

The Court dismissed the case, finding that UNICEF and the United Nations enjoy absolute immunity from legal process, pursuant to the the United Nations Charter, the Convention on Privileges and Immunities of the United Nations and the Headquarters Agreement. The Court also reminded that, under domestic law, jurisdictional immunity of international organizations is established by the International Organizations Immunity Act (IOIA). As it stressed, UNICEF, as an agency of the United Nations, constitutes an international organization within the meaning of the IOIA.

The IOIA provides that international organizations enjoy in the United States the same immunities recognized to States. However, according to the Court, it was unclear whether the wording of the IOIA allows the application of the restrictive State immunity regime, codified under the Foreign States Immunity Act. Relying on the cases of Mendaro v. World Bank, Broadbent v. Organization of American States and Tuck v. Pan American Health Organization, the Court affirmed that “even if the Foreign Sovereign Immunities Act applies so as to limit the Act’s grant of immunity, an international organization’s employment relationship with its internal staff is not “commercial activity“.

The Court also held that the provision of the Headquarter Agreement, invoked by the applicant, did not entail a waiver of immunity.