El Omari v. the International Criminal Police Organization ( 2022 )

21-1458-cv
El Omari v. The International Criminal Police Organization
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2021
Argued: February 3, 2022 Decided: May 24, 2022
Docket No. 21-1458-cv
OUSSAMA EL OMARI,
Plaintiff-Appellant,
— v. —
THE INTERNATIONAL CRIMINAL POLICE ORGANIZATION, also known as INTERPOL,
Defendant-Appellee.*
B e f o r e:
CABRANES, LYNCH, and CHIN, Circuit Judges.
__________________
Oussama El Omari appeals from the dismissal, for lack of subject matter
jurisdiction, of his civil action against the International Criminal Police Organization
(“Interpol”), based on the district court’s conclusion that Interpol is immune from suit
under the International Organizations Immunities Act, 22 U.S.C. §§ 288-288l. El Omari
argues that Interpol is not a “public international organization” within the meaning of
§ 288 and is thus ineligible for immunity under that Act, and, in the alternative, that
Interpol has waived immunity for purposes of the present suit. We agree with the district
*
The Clerk of Court is directed to amend the official caption in this case to
conform with the caption above.
court that Interpol is immune from suit and has not waived its immunity. Accordingly, we
AFFIRM the district court’s order and judgment.
SCOTT M. MOORE, Moore International Law PLLC, New
York, NY, for Plaintiff-Appellant.
GINGER D. ANDERS (Jonathan S. Meltzer, on the brief),
Munger, Tolles & Olson LLP, Washington, DC,
for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
Plaintiff-Appellant Oussama El Omari brought this action in the United States
District Court for the Eastern District of New York against the International Criminal
Police Organization, commonly known as “Interpol,” charging negligent infliction of
emotional distress and violation of his right to due process of law under the New York
State Constitution, after Interpol refused to delete a so-called “red notice” identifying El
Omari as a convicted criminal in the United Arab Emirates (“UAE”). The district court
(Sterling Johnson, Jr., J.) granted Interpol’s motion to dismiss for lack of subject matter
jurisdiction, holding that Interpol is a protected organization under the International
Organizations Immunities Act (“IOIA”), 22 U.S.C. §§ 288-288l, and thus enjoys the same
immunity from suit normally enjoyed by foreign sovereigns. See id. § 288a(b). On appeal,
El Omari argues that Interpol is not a “public international organization” within the
meaning of § 288 and is thus not immune under the IOIA. Alternatively, El Omari argues
that provisions in a 2008 agreement between Interpol and the Government of France (the
2
“Headquarters Agreement”) acted as a waiver of any immunity Interpol possesses under
the IOIA and thus permits jurisdiction over the present suit. He also argues that the
district court erred in denying his request for jurisdictional discovery.
We conclude that Interpol qualifies as a “public international organization” within
the meaning of § 288 and enjoys the same immunity from suit extended to foreign
sovereigns. Furthermore, we agree with the district court that any arguable immunity
waiver contained in the Headquarters Agreement is inapplicable to this action and that
Interpol has not waived its immunity for the purposes of the present suit. We also
conclude that the district court did not abuse its discretion by denying El Omari’s request
for jurisdictional discovery.
We therefore AFFIRM the order and judgment of the district court.
BACKGROUND
I. Interpol and the Headquarters Agreement
Interpol is an organization headquartered in Lyon, France. Although it is
sometimes depicted in the popular culture as an operational law enforcement organization
along the lines of the FBI, Interpol’s primary function is simply to facilitate
communications between the various domestic police agencies in its 194 participating
countries. One way Interpol performs that function is by issuing color-coded notices at
the request of participating countries. A red notice is, in effect, a notice that an identified
person is wanted for prosecution or has been convicted by one of the participating
3
countries. Interpol’s procedures for issuing and maintaining red notices is largely
governed by Interpol’s Constitution and its Rules for the Processing of Data. Any
individual may challenge the accuracy of a red notice by instituting proceedings directly
before the Commission for the Control of Interpol's Files (“CCF”).1
In 2008, Interpol negotiated a Headquarters Agreement with the Government of
France to “define, on the territory of the French Republic, the status, privileges and
immunities of . . . [Interpol,] which are necessary for the exercise of its functions and the
achievement of its aims.” Joint App’x 153. That agreement entered into force on
September 4, 2009. Under Article 24 of the agreement, “any dispute between [Interpol]
and a private party shall be settled in accordance with the Optional Rules for Arbitration
between International Organizations and Private Parties of the Permanent Court of
Arbitration” by a tribunal of “members appointed by the Secretary General of the
Permanent Court of Arbitration.”2 Id. at 160. On March 17, 2016, the Government of
1
A record of “certain anonymized decisions” by CCF is available on Interpol's
website. See CCF Sessions and Decisions, INTERPOL, https://www.interpol.int/en/
Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/CCF-sessions-and
-decisions (last visited May 9, 2022). Among ten anonymized decisions from 2019 – the
most recent year from which such decisions have been released – five challenges to
Interpol notices resulted in data being successfully removed from Interpol files.
2
The Permanent Court of Arbitration was created by the Convention for the
Pacific Settlement of International Disputes, which was concluded at The Hague in 1899
during the first Hague Peace Conference, and revised at the second Hague Peace
Conference in 1907. See History, PERMANENT COURT OF ARBITRATION,
https://pca-cpa.org/en/about/introduction/history/ (last accessed May 9, 2022).
4
France promulgated Decree No. 2016-326 in the form of letters between Interpol and
French government officials clarifying that the arbitration provision in Article 24 “does
not apply . . . to disputes regarding the processing of data in Interpol’s Information
System – such as Interpol notices, diffusions or messages.” Id. at 166. That decree
seemingly clarified that the Headquarters Agreement does not enable private parties to
force Interpol into arbitration over its handling of red notices.
II. El Omari’s Interactions With Interpol
According to the complaint he filed in this case, Oussama El Omari is a United
States citizen who lives in North Carolina. He previously worked in the UAE for a
member of one of that country’s ruling families, Sheikh Faisal bin Saqr Al Qassimi. El
Omari asserts that his trouble began after Sheikh Faisal fell out with his brother, Sheikh
Saud bin Saqr Al Qasimi, the ruler of Ras Al Khaimah, one of the UAE’s seven Emirates.
See Zoarab v. Mukasey, 524 F.3d 777, 778 (6th Cir. 2008). As a result of that fraternal
dispute, El Omari and his co-workers were terminated from their positions and
wrongfully prosecuted on a variety of spurious charges before secretive tribunals.
When El Omari returned to the United States on July 31, 2016, he was temporarily
detained by U.S. Customs officers – causing him to miss his connecting flight – and
informed that he was wanted in the UAE. El Omari later learned that Interpol had issued a
red notice for him at the request of the UAE following his February 8, 2015, conviction in
absentia for embezzlement and abuse of position by the Criminal Court of Ras Al
Khaimah.
5
El Omari asked Interpol to remove or modify the red notice, arguing that he had
been wrongfully convicted for political reasons.3 Interpol declined to modify the red
notice, concluding that El Omari had not established that the political elements of his case
outweighed the ordinary criminal law elements, and that El Omari had the right to appeal
the decision against him in the UAE with the assistance of counsel.
El Omari responded by bringing this action against Interpol, alleging that its
refusal to remove or otherwise alter the red notice constituted negligent infliction of
emotional distress and violated his due process rights under the New York State
Constitution. The district court dismissed the case for lack of subject matter jurisdiction,
concluding that Interpol was immune from suit under the IOIA, and had not waived that
immunity. See El Omari v. International Crim. Police Org. - Interpol, No. 19-cv-1457,
2021 WL 1924183, at *4-7 (E.D.N.Y. May 13, 2021). This appeal followed.
DISCUSSION
“We review de novo a district court’s dismissal of a claim for lack of
3
More generally, the complaint alleges that the red notice system has been
repeatedly abused by the UAE to attack political opponents and gain leverage in civil
disputes. See Joint App’x at 16. Similar concerns about nations abusing Interpol’s notice
system appear in the news with some regularity. See, e.g., Editorial Board, Opinion, Hong
Kong Exiles Fear an Interpol Red Notice, WALL ST. J., Feb 11, 2022, at A16
(“Authoritarian governments have abused the [red notice] system in the past to hound
opponents and limit their freedom of movement.”); Matt Apuzzo, How Repressive World
Leaders Turned Interpol Into Their Personal Weapon, N.Y. TIMES, Mar. 23, 2019, at
A10.
6
subject-matter jurisdiction.” Brzak v. United Nations, 597 F.3d 107, 110–11 (2d Cir.
2010), citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003). “We also
review de novo legal conclusions which grant or deny immunity.” Id. at 111, citing
Aurelius Cap. Partners, LP v. Republic of Argentina, 584 F.3d 120, 129 (2d Cir. 2009).
I. Interpol Is Immune from Suit Under the IOIA.
The IOIA, first enacted in 1945, provides that “[i]nternational organizations
. . . 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.” 22 U.S.C. § 288a(b). For the purposes of the IOIA “international organization”
is defined as:
[1] a public international organization [2] in which the United
States participates pursuant to any treaty or under the
authority of any Act of Congress authorizing such
participation or making an appropriation for such
participation, and [3] which shall have been designated by the
President through appropriate Executive order as being
entitled to enjoy the privileges, exemptions, and immunities
provided in this subchapter.
22 U.S.C. §288. The parties do not dispute that Interpol satisfies the second and third
criteria. Congress has provided statutory authorization for the United States to participate
in Interpol, 22 U.S.C. § 263a, and President Reagan issued an Executive Order
designating Interpol as an organization entitled to certain immunities and privileges under
7
the IOIA. See Exec. Order No. 12,425, 48 Fed. Reg. 28,069 (June 16, 1983) (“[T]he
International Criminal Police Organization . . . is hereby designated as a public
international organization entitled to enjoy the privileges, exemptions and immunities
conferred by the International Organizations Immunities Act . . . .”). That designation was
reaffirmed by Presidents Clinton and Obama when each expanded the scope of the IOIA
immunities and privileges to which Interpol was entitled. See Exec. Order No. 12,971, 60
Fed. Reg. 48,617 (Sep. 15, 1995); Exec. Order No. 13,524, 74 Fed. Reg. 67,803 (Dec. 16,
2009).
The parties disagree, however, about whether Interpol is a “public international
organization” within the meaning of § 288, and is thus eligible to receive the privileges,
exemptions, and immunities conferred by the IOIA. Accordingly, the first issue we must
address is whether Interpol qualifies as a “public international organization” under § 288.
A. Public International Organizations Under the IOIA
“Statutory construction must begin with the language employed by Congress and
the assumption that the ordinary meaning of that language accurately expresses the
legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (internal
quotations omitted). To determine that ordinary meaning, courts may look to
contemporary dictionary definitions. See id. at 176. If the text of the statute “is not
entirely clear, we then turn to the broader statutory context and its history.” Khalid v.
Sessions, 904 F.3d 129, 132 (2d Cir. 2018).
8
Starting with the text, the district court found that the term “public” ordinarily
means “of or provided by the state rather than an independent, commercial company.” El
Omari, 2021 WL 1924183, at *5. That is generally consistent with dictionary definitions
that existed at the time the IOIA was adopted. See, e.g., Public, THE OXFORD ENGLISH
DICTIONARY (1933) (“Of or pertaining to the people as a whole; that belongs to, affects,
or concerns the community or nation”). The term “public” was also defined as being the
antithesis of “private.” See, e.g., Public, THE OXFORD ENGLISH DICTIONARY (1933) (“In
general, and in most of the senses, the opposite of Private.”). During the same time
period, “international” was defined as concerning relations between nations, and
“organization” referred to a coordinated entity. See, e.g., International, THE OXFORD
ENGLISH DICTIONARY (1933) (“Existing, constituted, or carried on between different
nations; pertaining to the relations between nations.”); Organization, THE OXFORD
ENGLISH DICTIONARY (1933) (“An organized structure, body, or being . . . .”). Those
definitions suggest that a “public international organization” must be a coordinated
product of states and governments acting to serve their public interest. Interpol thus meets
the straightforward dictionary definition of a public international organization.
To the extent there is any ambiguity about the meaning of a “public international
organization” under the IOIA, the legislative history confirms that a public international
organization includes any organization whose membership is composed of governments.
As explained in the House Report for the IOIA:
9
The term “international organization” as used in the bill and
generally in this report is specifically limited to public
international organizations, i. e., those which are composed of
governments as members—and of these, to those of which the
United States is a member and which shall have been designated
by the President by Executive order as being entitled to enjoy the
benefits of the bill.
H.R. REP. NO. 79-1203, at 1 (1945) (“House Report”) (emphasis added). In other words,
the House Report explicitly defined “public international organizations” in the context of
the IOIA as organizations “which are composed of governments as members.” Id. That
definition is consistent with the ordinary meaning of the language and removes any
ambiguity about the proper interpretation of the statutory text. Id.That understanding is further confirmed by its adoption by the executive branch.
The first executive order designating Interpol as entitled to IOIA protections was issued
after President Reagan sought and obtained legal advice from the Department of Justice’s
Office of Legal Counsel (“OLC”). OLC responded to President Reagan with a January
1983 memorandum concluding that Interpol qualified as a “public international
organization” because it is “composed of governments as members.” Joint App’x 566-68,
quoting House Report. OLC’s 1983 conclusion tracked the requirements contained in the
State Department’s 1946 guidance for applicants seeking designation under the IOIA. See
14 State Department Bulletin No. 348, at 348-49 (Mar. 3, 1946). The decision by the
State Department and, in turn, OLC to adopt the definition from the House Report, and
10
the decisions by successive Presidents to rely on that analysis, are entitled to considerable
persuasive weight. See Gonzales v. Oregon, 546 U.S. 243, 268-69 (2006) (noting that the
persuasiveness of the Executive Branch’s interpretation of statutes outside of the
rulemaking context depends, inter alia, on “the thoroughness evident in its consideration”
and “its consistency with earlier and later pronouncements”).
On appeal, El Omari proposes several alternative criteria that he argues should be
required to qualify an entity as a “public international organization” within the meaning
of the IOIA. First, he argues that Interpol is not “public” because it is not a government
actor. Second, he argues that “public” is a term of art within United States tax law, and
thus Interpol cannot be “public” because it would not qualify as tax exempt public charity
under 26 U.S.C. § 501(c)(3), as evidenced by the fact that it accepts donations though its
affiliate the Interpol Foundation rather than receiving donations directly. Finally, he
points to dicta in Jam v. International Finance Corp. identifying examples of public
international organizations entitled to IOIA immunity, “includ[ing] the United Nations,
the International Monetary Fund, and the World Bank,” and asks us to infer from those
examples that IOIA protections may be extended only to organizations formed by
international treaty.4 139 S.Ct. 759, 765 (2019). All of those arguments are unavailing.
4
El Omari also argues that the decision in Steinberg v. International Crim. Police
Org., 672 F.2d 927 (D.C. Cir. 1981), which found that Interpol was subject to the
personal jurisdiction of that court, demonstrates that Interpol is not entitled to IOIA
immunity. Steinberg was decided in 1981, before President Reagan signed the first
11
There is no persuasive basis, textual or otherwise, for limiting a “public
international organization” under § 288 to entities that are part of a single government.
Similarly, there is no basis for construing the term “public” as incorporating portions of
the United States Tax Code. The portion of the code defining tax-exempt organizations,
which by its terms applies only for domestic tax purposes, see 26 U.S.C. §§ 501(a), (c),
has no conceivable relevance to questions of international organization immunity. Indeed,
the exemplary organizations identified by the Supreme Court in Jam – which El Omari
concedes are proper examples of organizations entitled to IOIA immunity – would fail to
satisfy those proposed criteria.5
executive order granting Interpol immunity under the IOIA, and thus at a time when
Interpol lacked immunity under the IOIA because it had not yet been “designated by the
President through appropriate Executive order” to enjoy such immunity, 22 U.S.C. § 288.
That decision, which did not discuss whether Interpol qualifies as a “public international
organization” under the IOIA, has no bearing on whether a court may exercise
jurisdiction over Interpol today, in view of the intervening executive orders.
5
The United Nations, for example, is neither a government actor nor a public
charity. Rather, it is a forum for nations to conduct intergovernmental business. Similar to
Interpol, the United Nations does not directly receive donations, but solicits funds through
a variety of affiliated groups. See, e.g., How to Donate to the United Nations System,
UNITED NATIONS, https://www.un.org/en/about-us/how-to-donate-to-the-un-system (last
visited May 16, 2022) (inviting donations to affiliated organizations such as the UN
Human Rights Office, the UN Central Emergency Response Fund, the UN World Food
Programme, the United Nations Children’s Fund, and the UNESCO World Heritage
Center). For similar reasons, we reject El Omari’s passing argument that public
international organizations must be restricted to agencies or instrumentalities of foreign
governments based on the definition of “foreign state” under the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1602-03. See Appellant’s Br. 14-15.
12
We also disagree that Jam limits “public international organizations” to bodies that
have been formed through international treaties. In Jam, the Supreme Court held that the
IOIA “grants international organizations the same immunity from suit as is enjoyed by
foreign governments at any given time.” 139 S.Ct. at 772 (internal quotations omitted).
As part of its discussion, the Supreme Court identified the United Nations, the
International Monetary Fund, the World Bank, and the World Health Organization as
examples of organizations entitled to immunity under the IOIA, and noted that the scope
of that immunity can be curtailed by either the terms of the organization’s founding
charter or by the President acting pursuant to the authority delegated by the IOIA to
withhold or withdraw the immunity of otherwise qualified public international
organizations. See id. at 764-765. The Jam opinion did not address the proper
interpretation of “public international organizations” under § 288, nor did it explain what
specific characteristics of the listed organizations qualified them for that designation. It
would not be appropriate for us to divine some limiting principle for what qualifies as
“public” based solely on the organizations mentioned in the Jam opinion as examples of
that category. And while Jam states that an organization’s charter may in some cases
override the IOIA’s default rules regarding immunity, id. at 771, it did not suggest that all
“public international organizations” must be formed pursuant to such a charter.
Moreover, the text of the IOIA itself refutes El Omari’s contention that a “public
organization” must be one created by treaty. “It is a cardinal principle of statutory
13
construction that a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal citations and quotations omitted). The
IOIA explicitly extends its protections to otherwise eligible organizations “in which the
United States participates pursuant to any treaty or under the authority of any Act of
Congress authorizing such participation.” 22 U.S.C. § 288 (emphasis added). The use of
the word “or” suggests that IOIA protections may extend to organizations where United
States participation is authorized by statute, rather than by a treaty.6
Accordingly, based on the statutory language, the broader statutory context, the
legislative history, and the consistent practice of the Executive Branch, we conclude that
a “public international organization” as used in § 288 includes, at minimum, any
international organization that is composed of governments as its members, regardless of
whether it has been formed by international treaty.
B. Interpol Qualifies as a Public International Organization.
We next turn to whether Interpol is properly categorized as a “public international
organization” under that definition, and is thus eligible for designation by the President to
receive the privileges and immunities conferred by the IOIA. El Omari’s complaint
6
For example, President George W. Bush designated the ITER International
Fusion Energy Organization as protected under the IOIA, see Exec. Order No. 13,451, 72
Fed. Reg. 65,653 (Nov. 19, 2007), in which the United States participates pursuant to a
statute, see 42 U.S.C. § 16312(c).
14
alleged that Interpol is composed of “member countries.” Joint App’x 9. Interpol
seemingly agrees with that characterization, describing itself throughout its brief as being
composed of “member countries.” See, e.g., Appellee’s Br. 1. More technically, however,
Article 4 of Interpol’s Constitution specifies that membership in Interpol is conferred on
government agencies rather than on the nations they represent. Article 4 provides that
participating countries “may delegate as a Member to the Organization any official police
body whose functions come within the framework of activities of the Organization.” Joint
App’x 93 (emphasis added). Therefore, membership in Interpol formally belongs to the
delegated “official police body” of each participating country.7
Interpol’s extending membership to police organizations, combined with the fact
that Interpol was not formed by international treaty, has led some to question whether
Interpol is truly an international organization.8 But to qualify as a “public international
7
For example, the United States participates in Interpol through a dedicated
agency within the Department of Justice, the Interpol-U.S. National Central Bureau
(“USNCB”). See 28 C.F.R. § 0.34. It is thus presumably the USNCB, rather than the
United States itself, that is formally an Interpol member.
8
The proper classification of Interpol has been a topic of debate among
international law scholars, with some arguing that it is a non-governmental organization
that cannot technically qualify as an international organization as that term is used in
international law, and others arguing that it has long-since achieved the status of a de
facto intergovernmental organization whose membership is composed of central
government organs. Compare, Andreas Gallas, Interpol, in 5 ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW 187, 187 (Rudolf Bernhardt ed., 1983) (arguing that Interpol is not
an international organization) with Sabine Gless, Interpol, in 6 THE MAX PLANCK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 252, 255 (Rüdinger Wolfrum ed., 2012)
(arguing that Interpol is such an organization). See also Giulio Calcara, A Transnational
15
organization” under the IOIA, it is sufficient that membership in Interpol is restricted to
official government actors whose involvement is controlled by the particular participating
nations. The political branches may authorize a government-controlled agency to
represent the interests of the United States within an organization. In the case of Interpol,
Congress explicitly authorized the Attorney General “to accept and maintain, on behalf of
the United States, membership in the International Criminal Police Organization, and to
designate any departments and agencies which may participate in the United States
representation with that organization.” 22 U.S.C. § 263a. That the United States acts
through a specific government agency does not alter the fact that it is still the United
States, subject to Congressional authorization and Executive control, that participates in
Interpol. Similarly, the “official police bod[ies]” designated by the other participating
nations are, for all relevant purposes, agents of their respective nations. CONSTITUTION OF
THE INTERNATIONAL CRIMINAL POLICE ORGANIZATION -INTERPOL, Art. 4 (2021), Joint
App’x 93; see also id. Art. 45, Joint App’x at 98 (indicating that the official police bodies
Police Network Co-operating Up to the Limits of the Law: Examination of the Origin of
Interpol, 11 TRANSNATIONAL LEGAL THEORY 521, 536-37 (2020) (summarizing the
majority view that Interpol is a de facto intergovernmental organization but noting that “a
minority of scholars, until very recently, still claimed that [Interpol] is an NGO”). There
is no indication that this academic debate, which post-dates the IOIA by at least several
decades, was part of the contemporary “ordinary meaning,” Gross, 557 U.S. at 175, when
Congress in 1945 authorized immunity for “public international organization[s]” that
meet the statutory criteria. We thus have no need to arbitrate between the competing
academic theories.
16
“represent[]” the countries to which Interpol’s Constitution applies). Because Interpol is
functionally restricted to governments as members, acting through their chosen delegates,
we conclude that it qualifies as a “public international organization” within the meaning
of § 288.
II. Interpol Has Not Waived Its Immunity.
The IOIA provides immunity to public international organizations designated by
the President “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.” 22 U.S.C.
§ 288a(b). Like sovereign states, therefore, such organizations may waive the immunity
provided to them by statute. El Omari argues that, even if Interpol is protected from suit
by the IOIA, it effectively waived that protection by entering into the Headquarters
Agreement with the Government of France in 2008. We disagree.
At the outset, we note that the Headquarters Agreement is a contract between
Interpol and the Government of France that by its express terms is designed to define the
“status, privileges and immunities” afforded to Interpol “on the territory of the French
Republic.” Headquarters Agreement, Preamble, Joint App’x 153 (emphasis added). There
is no indication that either Interpol or the Government of France had any thought, in
agreeing upon the terms on which Interpol would be subject to disputes arising from its
day-to-day business on French soil, as to the rights, under New York law, of American
citizens affected by Interpol’s dissemination of information in the United States about
criminal cases pending in the UAE.
17
Moreover, even if we were to make the extraordinary assumption that the dispute
resolution provisions of the Headquarters Agreement had some application to this case,
those provisions do not waive any immunity Interpol might have from suit in the courts of
France, let alone of the United States. Article 24 of the Headquarters Agreement, which
El Omari points to as a possible immunity waiver, provides a right to settle disputes “in
accordance with the Optional Rules for Arbitration between International Organizations
and Private Parties of the Permanent Court of Arbitration by a tribunal composed either of
one or of three members appointed by the Secretary General of the Permanent Court of
Arbitration.” Joint App’x 160. At most, that provision creates only a right to arbitration.
By comparison, other portions of the Headquarters Agreement suggest, if anything, that
Interpol is immune to most civil suits within the French legal system. See, e.g.,
Headquarters Agreement Art. 5, Joint App’x 154 (Interpol “shall enjoy immunity from
legal process” except in certain enumerated cases). On no reasonable reading can the
Headquarters Agreement be understood as an explicit waiver of the immunity from suit in
American courts conferred by the IOIA.
Nor can we accept El Omari’s argument that the Headquarters Agreement should
be understood as an implicit immunity waiver. In the context of sovereign immunity
under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-11, some
courts have found “an implicit waiver . . . involving contracts in which a foreign state has
agreed to arbitrate disputes without specifying jurisdiction in a particular country or
18
forum, or where another nation has stipulated that American law should govern any
contractual disputes.” Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377
(7th Cir. 1985) (internal citations omitted). But cf. Cargill Int'l S.A. v. M/T Pavel
Dybenko, 991 F.2d 1012, 1017 (2d Cir. 1993) (“[A]n agreement to arbitrate in a foreign
country, without more, ought not to operate as a waiver of sovereign immunity in United
States courts, especially in favor of a non-party to the agreement.” ). El Omari urges that,
in view of Jam, similar restrictions would apply to international organizations under the
IOIA. See 139 S. Ct. at 769 (“The IOIA . . . link[s] the law of international organization
immunity to the law of foreign sovereign immunity, so that the one develops in tandem
with the other.”). But even assuming that similar standards apply in the FSIA and IOIA
contexts, the Headquarters Agreement would not function as an implicit immunity
waiver. Unlike the contracts discussed in Frolova as potentially creating such a waiver,
the Headquarters Agreement specifies a particular forum for the arbitration, and a
specialized set of rules to govern the arbitration that differ from general American law.
See 761 F.2d at 377. If anything, the Headquarters Agreement is more akin to the sorts of
agreements to arbitrate in foreign countries that, without more, do not generally act as
immunity waivers to permit suit in federal district court. See Cargill, 991 F.2d at 1017.
For those reasons, even assuming that the right to arbitration in the Headquarters
Agreement applied to the present suit, that right to arbitration would not act as either an
explicit or implicit immunity wavier permitting El Omari to bring the present suit against
Interpol in a federal district court.
19
Finally, we note that, before the present dispute between El Omari and Interpol
arose, the French government promulgated Decree No. 2016-326, expressly accepting
Interpol’s understanding that the arbitration provision in Article 24 “does not apply . . . to
disputes regarding the processing of data in Interpol’s Information System – such as
Interpol notices, diffusions or messages.” Joint App’x 166. Thus, the parties to the
Headquarters Agreement themselves – the Government of France and Interpol acting
through its Secretary General – have made clear that the provisions on which El Omari
relies for his contention that Interpol has waived immunity do not permit private parties to
force Interpol into arbitration, still less into any court, over its handling of red notices.
Therefore, even if the Headquarters Agreement would have somehow acted as an
immunity waiver in the past, any such hypothetical waiver does not apply to El Omari’s
present suit.
For all of the above reasons, El Omari’s argument that Interpol has waived the
protections of the IOIA is without merit.
III. Jurisdictional Discovery
Finally, El Omari argues that the district court erred by denying him leave to
conduct jurisdictional discovery prior to dismissal. Specifically, El Omari sought a
variety of documents intended to show that “on the date El Omari was detained at JFK,
. . . Interpol had no legal status under the laws of France other than [as] a commonplace
non-profit entity, and [to] support a finding that Interpol is not ‘public’ and not immune
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from suit.” Appellant’s Br. 20. The district court tacitly denied El Omari’s request by
granting Interpol’s motion to dismiss for want of subject matter jurisdiction. See El
Omari, 2021 WL 1924183, at *4.
“We review a district court’s denial of jurisdictional discovery for abuse of
discretion, always mindful that a district court has wide latitude to determine the scope of
discovery.” Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 206 (2d Cir.
2016) (internal citations and quotations omitted). “When sovereign immunity is at issue,
discovery is warranted ‘only to verify allegations of specific facts crucial to an immunity
determination.’” Id. at 207, citing EM Ltd. v. Republic of Argentina, 473 F.3d 463, 486
(2d Cir. 2007). A similar standard applies to immunity under the IOIA because it
“develops in tandem” with the law of foreign sovereign immunity. Jam, 139 S. Ct. at 769.
In the present case, the information sought by El Omari has no bearing on the
immunity determination. Interpol’s non-profit status under the laws of France sheds no
light on whether Interpol qualifies as a “public international organization” entitled to the
protections conferred by the IOIA. 22 U.S.C. § 288. Rather, as explained above, the
relevant inquiry is whether the organization is effectively composed of governments as
members, whether Congress has authorized the United States to participate in the
organization, and whether the President has chosen to extend protections to the
organization through an executive order. See id. Because the requested discovery was not
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germane to the immunity determination, it was not an abuse of discretion for the district
court to deny the request for jurisdictional discovery. See Arch Trading, 839 F.3d at 207.
CONCLUSION
To summarize, we conclude that:
1. The term “public international organizations” as used in 22 U.S.C. § 288includes any international organization that is composed of governments as its members,
regardless of whether it has been formed by international treaty.
2. Interpol qualifies as a “public international organization” for the purposes of 22
U.S.C. § 288 because its members are official government actors whose involvement is
subject to control by participating nations.
3. The Headquarters Agreement between Interpol and the Government of France
does not constitute an immunity waiver that would permit the present suit in a United
States district court.
4. The district court did not abuse its discretion by denying El Omari’s request for
jurisdictional discovery prior to dismissal.
Accordingly, the judgment of the district court is AFFIRMED.
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