Rodriguez et al v. Pan-American Health Organization

A group of Cuban physicians sued the Pan American Health Organization (PAHO) before the District Court for the District of Columbia, alleging that PAHO had facilitated Brazil’s Mais Médicos program, under which Brazil hired foreign physicians and Cuba supplied physicians to the program, allegedly without their consent and in violation of human trafficking laws. The Applicants also claimed that PAHO acted as an a financial intermediary between Brazil and
Cuba. PAHO moved to dismiss the case, asserting immunity under the International Organizations Immunities Act
(IOIA) and the World Health Organization Constitution.

The District Court found that PAHO was immune from the first class of claims advanced by the applicants, while the claim concerning the activity of financial intermediation provided by PAHO. According to the Court, such claim fell into the commercial tort exception established under the Foreign States Immunity Act, applicable to international organizations as clarified by the Supreme Court in Jam v. International Finance Corporation. The District Court also held that the Constitution of the World Health Organization (WHO), which confers on WHO privileges and immunities as may be necessary to perform its functions, is not a self-executing treaty provision.

The Court of Appeal confirmed the conclusions of the District Court. As it held, the conditions for the application of the commercial tort exception are met in the instant case.

As concerned the WHO Constitution, the Court of Appeal stressed that the Convention does not provide an “enforceable rule-of decision“. As it underlined, the Convention provides that “privileges and immunities shall be defined in a separate agreement to be prepared by the Organization in consultation with the Secretary-General of the United Nations and concluded between the Members”. The Convention, thus, requires the Government to take future action to guarantee immunities and privileges. Accordingly, the Convention provision cannot be enforced by domestic courts.