After it signed the OECD Anti-Bribery Convention, the U.S. in 1998 amended the FCPA through the International Anti-Bribery and Fair Competition Act. Among other things, the 1998 amendment widened the definition of “foreign official” to include any officer or employee of a public international organization or any person acting in an official capacity for, or on behalf of, any such public international organization.
What are public international organizations?
The FCPA says they are any “organization that is designated by Executive Order pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. § 288).
And 22 U.S.C. § 288 says:
a public international organization 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 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.”
The U.S. Department of State Foreign Affairs Manual Volume 9 (41.24 Exhibit 1) (pdf here) lists the international organizations of which the United States is a member and have been designated by Executive Order pursuant to various treaties or under the International Organizations Immunities Act of December 29, 1945 (pdf here).
Additionally, the 1998 amendment identified the International Telecommunications Satellite Organization (Intelsat) and the International Mobile Satellite Organization. They were to be treated as public international organizations under the FCPA until the U.S. President certified to the House of Representatives that an ‘international organization providing commercial communications services has achieved a pro-competitive privatization.’
Intelsat became a private company in 2001 and presumably dropped off the FCPA’s list of public international organizations. The International Mobile Satellite Organization apparently remains a public international organization for purposes of the FCPA.
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A public international organization under the FCPA can also be “any other international organization that is designated by the President by Executive order for the purposes of this section, effective as of the date of publication of such order in the Federal Register.”
President Bush, for example, signed Executive Order 13259 on March 19, 2002 designating as public international organizations:
The European Union, including the European Communities (the European Community, the European Coal & Steel Community, and the European Atomic Energy Community); institutions of the European Union, such as the European Commission, the Council of the European Union, the European Parliament, the European Court of Justice, the European Court of Auditors, the Economic and Social Committee, the Committee of the Regions, the European Central Bank, and the European Investment Bank; and any departments, agencies, and instrumentalities thereof; and the European Police Office (Europol), including any departments, agencies, and instrumentalities thereof.
With one big exception (maybe), the 1998 amendment widened the definition of “foreign official” and extended the already long arm of the FCPA.
That big exception? NATO isn’t on the list published by the U.S. Department of State. And the only executive order about NATO appears to be in relation to security clearance, not its status. Does that mean NATO’s people aren’t “foreign officials” under the FCPA at all?
Philip Fitzgerald is a contributing editor of the FCPA Blog. He holds a Docteur en droit (doctor of laws) from France’s Université du Sud Toulon Var and an LL.B in Law and French from the University of Edinburgh. He was a member of Scotland’s national rugby union A team and played professional rugby in France for ten years.