Kling v. World Health Organization

Richard Kling and others citizens of the United States filed a lawsuit against the World Health Organization (WHO) before the District Court of New York, complaining negligence in the response to COVID-19 pandemic. Specifically, the applicants claimed that the WHO had failed to timely qualified COVID-19 as a public health emergency, to properly monitor China’s efforts in containing the spread of the virus, to adopt appropriate guidelines for member States to face the health emergency.

Before the District Court, the respondent organization invoked its immunity from legal process and filed a motion requesting the dismissal of the case. In particular, the WHO argued the WHO Constitution and the Convention on Privileges and Immunities of the Specialized Agencies of the United Nations provide it with immunity from every form of legal process, except in so far as in any particular case it has expressly waived its immunity.

By contrast, the applicants argued that the WHO Constitution did not constitute a self-executive treaty enforceable in national judicial proceedings. As a results, the immunity of the respondent organization rested on the International Organizations Immunity Act (IOIA), which grants to international organizations “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 terms of any contract”. The applicants pointed out that the instant case fell within the scope of the immunity exceptions established under theForeign States Immunity Act (FSIA). In alternative, they asserted that the WHO had implicitly waived its immunity, by violating the jus congens obligations regarding the protection of human rights.

The District Court granted the motion and dismissed the case, declaring its lack of jurisdiction.

The Court’s decision rested on the interpretation and application of the IOIA. As it observed, “regardless of whether the WHO constitution is a self-executing treaty, the WHO is independently immune from suit under the International Organization Immunities Act”.

Although the IOIA allows the application of the FSIA exceptions to international organizations, the Court found that the conditions for applying the non- commercial tort exception were not met in the case in question. Under the non-commercial tort exception, immunity does not apply in any case in which money damages are sought against a foreign State for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign State. In the case in question, however, the negligence alleged by the plaintiffs took place in several unspecified countries, just as the damage to public health alleged by them occurred on a global scale. As highlighted by the Court, the non-commercial tort exception requires that both the alleged damage and the acts that gave rise to it occurred in a territory subject to US jurisdiction.

Finally, the Court found that, in the case in question, the WHO had not waived its immunity. As it held, alleged jus cogens violations do not constitute an implicit waiver of immunity within the meaning of the FSIA and the IOIA.