As Kristen Boon reports over at Opinio Juris, the United Nations yesterday asserted complete legal immunity from any liability or claims arising from the Haiti cholera epidemic, which reportedly was the result of infected UN troops who were part of the United Nations Stabilization Mission in Haiti. The United Nations benefits from a special treaty, the UN Convention on Privileges and Immunities, dating back to 1946 as part of the creation of the UN; it provides the UN with absolute immunity in national courts worldwide. Lawyers for various Haitians infected with cholera submitted claims to the UN, working with a Boston-based NGO, the Institute for Justice and Democracy in Haiti (IJDH). Professor Boon explained the filing in an OJ post in October last year:
IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character. No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge. To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance. Moreover, there is very little information available on the procedure through which the UN considers such claims internally. The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed. Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.
Yesterday, then, the UN responded to the claims with a letter under the signature of the UN’s Under-Secretary for Legal Affairs – the UN’s general counsel – Patricia O’Brien. The letter talks about the good things the UN sees itself as having done in Haiti in relation to the cholera epidemic. But the key legal assertion is a brief paragraph:
With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable, pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946.
Section 29 says that the United Nations will “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. (Emphasis added.) The UN’s position appears to be that
the cholera claim is in the nature of a public (rather than a private law claim cognizable under Section 29) due to the political and policy issues it raises. Nonetheless, there is no explanation in the letter itself as to why this should be considered a public law dispute.
One key element of a public law claim would presumably be that the dispute arises between a state and the UN, but in this case it is absent because Haiti expressly elected not to participate in this dispute. Perhaps another rationale is that the claim involves public law because the cholera outbreak arose pursuant to a Status of Forces Agreement with Haiti.
Professor Boon suggests that many public law claim elements are missing here and, as she points out, the net result is that
the claimants have no venue to pursue their case. The UN’s decision cannot be appealed. Moreover, if the UN were sued in a national court, it would assert its privileges and immunities which would shield it from jurisdiction. Although the Model Status of Forces Agreement provides for a standing claims commission, no such commission has ever actually been established in any context. There is a well developed practice of adjudication by local claims boards for routine claims and injuries that occur during Peacekeeping Missions, although in this case, it appears that such a board in Haiti would not have jurisdiction due to the complexity of the case in addition to the level of compensation sought.
Why would the UN adopt such an uncompromising line? Professor Boon is sympathetic to the plight of the individual Haitians in this situation, but in her post last year, she identified three reasons why the UN might be unwilling to get involved in any form of dispute resolution here. I’m not quite sure where I’d come out on this matter, but it bears noting that the UN’s concerns are not minor, and are easily understood as weighty reasons of state:
- First, the UN has taken the position that cholera was not conclusively introduced by the Nepali peacekeepers, and consequently, an open question remains as to ultimate responsibility.
- Second, the financial implications for the UN are profound. Not only will a settlement create a huge financial burden on the organization, but it might deter future peacekeeping efforts.
- Finally, the case is precedent setting. It will unquestionably influence how mass claims against the UN are lodged and resolved in the future.
The effects into the future might well be very bad, if it were to make future peacekeeping more difficult; peacekeeping operations is one of the few bright spots of the organization, despite its difficulties. In my own book on US-UN relations, Living With the UN: American Responsibilities and International Order, published by Hoover Press last year, I included a chapter on internal UN governance and noted just how appallingly bad it is. Legally and managerially, it’s a world unto itself. The notion of accountability as a matter of simply keeping track of the money – auditing and internal fiscal mechanisms standard to corporations – is widely understood to be dodgy at very best. Such things as financial disclosure of conflicts and the like by the organization’s senior staff is piously urged, but it remains voluntary and is not widely done.
Academics like studying the UN mostly because they’re interested in deep issues of international law and organizations, or exciting topics in international relations. Not very many people are interested in the most basic mechanism for understanding of all, ‘follow the money’. Fewer still are interested in the budgeting, accounting, and fiscal management issues. It’s a pity, because in the UN’s case, following the money internally is a highly informative public choice approach to understanding the incentives of the internal actors. (I do have to say that though my book is mostly witheringly critical of both the UN and the Obama administration’s approach to it and its issues (“a book only John Bolton could love,” as one reader told me, and an “acerbic essay,” as Michael Ignatieff remarked in passing in the New Republic), I have great admiration for Joe Torsella and the work he and his staff do as the US government’s representatives on UN management issues. It’s a thankless task, and yet they slog away, trying to get the UN to be more accountable for its resources and better managed.)