Haiti
Cholera Update: The UN Doesn’t Budge
by Kristen
Boon
Following
the UN’s
rejection of a demand for compensation for Haiti Cholera victims
earlier this spring, the Institute for Justice and Democracy in Haiti challenged the
interpretation and application of Article 29 of the Agreement on Privileges and
Immunities, and formally requested a meeting with UN officials to discuss
Petitioners’ claims.
The
Plaintiffs asked for the UN to respond within 60 days. That period ended
on July 6, and sadly but perhaps unsurprisingly, the UN has not budged.
The UN responded to claimants, reiterating that the claims would involve
a review of political and policy matters. The other communication
forthcoming during this period was a July 5 letter under
the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress. This
letter responds to a separate letter by
Congresswoman Waters about the cholera epidemic, and reiterates that the UN has
determined the claims are not receivable under Section 29 of the Agreement on
Privileges and Immunities.
Criticism
of the UN’s response to the Cholera claims has been widespread.
As I noted in an earlierpost,
the reliance on Article 29, which distinguishes between public and private
claims, is questionable. In a recent
paper on the topic, Professor Frederic Megret notes that one of
the problems of the public / private distinction is that due to the “internal,
confidential and unilateral” character of the review boards’ procedure the UN
has never provided a clear definition of public or private. A guide to UN
practice is available here.
The
lawyers for the plaintiffs state that they will now file a case against the UN
in a domestic court. I predict this will be an uphill battle.
Although the UN could and sometimes does waive its immunity under Section
2 of the Agreement on Privileges and Immunities, its posture thus
far suggests it will not do so here. Assuming the UN asserts its
privileges and immunities as an affirmative defense before a domestic court, it
will probably be successful There are some decisions in which courts are
amenable to limiting the immunities of IOs where there is no available forum,
employment cases such as Waite
and Kennedy are an example. If a court were to follow the
“no reasonable alternative” reasoning in the Haiti case, the plaintiffs might
have a shot.
A
recent case against the UN in the Netherlands involving the massacre at
Srebrenica illustrates the strength of the UN’s privileges and immunities. In
the Mothers
of Srebrenica judgement, the Hague Court of Appeals affirmed the
UN’s absolute immunity, but found the Dutch state responsible under
international law. This was a compelling set of facts to safeguard IO
immunities to be sure: a peacekeeping mission, the use of force, and an
alternative respondent: the Dutch state.
The
takeaway, I believe, is that domestic courts will not provide a satisfactory
alternative either. One mechanism that is available – at least in theory –
to the plaintiffs is a request for an ICJ advisory opinion under Article
30 of the Agreement, if someone else takes up the cause:
SECTION 30. All differences arising out of the interpretation or
application of the present convention shall be referred to the International
Court of Justice, unless in any case it is agreed by the parties to have
recourse to another mode of settlement. If a difference arises between the
United Nations on the one hand and a Member on the other hand, a request shall
be made for an advisory opinion on any legal question involved in accordance
with Article 96 of the Charter and Article 65 of the Statute of the Court. The
opinion given by the Court shall be accepted as decisive by the parties.
Under
this provision, a UN organ could make the request, although again, this seems
unlikely
