The UN Haiti Cholera Dispute – Public or Private Law Claim Under Section 29?

by Kenneth Anderson

Kristen asks in her post below whether anyone has a view on whether the UN’s assertion that the cholera epidemic claims in Haiti constitute a public law claim, and hence not within the purview of Section 29 of the UN Convention on Privileges and Immunities is supported by  law or past practice?  I don’t have a view, or any genuinely legal materials to raise, but curiously I encountered the issue in passing, in practice as general counsel for an NGO during the Bosnian war in the 1990s.  Circumstances were unique, and for various reasons my client organization decided not to pursue it as a matter of research or dispute, but Section 29 specifically came up as a comment from UN officials I was negotiating with at the time.

At the time of the Dayton Accords, the agreement and all the parties – not just signers of the Accords but states, the UN, various other international bodies – agreed there needed to be a TV and radio network reestablished across Bosnia that would broadcast in all languages, provide neutral news reporting, etc., in the run-up to the elections.  But broadcast towers and all that had been destroyed, so the physical infrastructure needed to be put in place very quickly.  The states involved, and some organs of the UN – I’m sure I’m not remembering the details correctly – agreed in principle to fund this, but expressed concern that they could not get the funds flowing quickly enough to meet the deadlines.  So my organization was invited to consider whether it would front the funds, pay for the work, hire the consultants and contractors, and see that the work was completed in time.

The parties promising to pay included the Dayton accord states, one or another EU aid agency, and several different UN organs – I don’t recall, exactly, because it never really got that far. We agreed in principle to put up the money and all that, but of course as the suspicious lawyer for my side, I kept asking everyone what recourse we would have if, at the end of all that, and assuming a successful outcome, the states, the UN agencies, the EU agencies said – “Thanks ever so much! You should be thrilled to have done such public spirited work! But we’re not paying.”  Where and who would we sue?  For that matter, I was equally concerned that the project might not work out as planned – we’d spend the money, but fighting would erupt again, or it would be impossible to get to important places, etc. – and then who would essentially bear the loss for money spent on a failed project?  The idea was a memorandum of understanding to document this – but it was obvious that my understanding was we’d wind up with “binding contract with remedies” and their understanding was merely MOU “not binding at all.

The US – I don’t recall which agency, I’m not sure whether it was US AID or someone else in DOS – was part of the state funding group as part of Dayton. I suggested that, first, we might be able to sue it, under documents properly drafted to establish the US’s liability, as being a commercial activity, since, after all, we were spending a million dollars or so to hire international telecom consultants to create a commercial radio/TV network. The USG program officers (we never even got to the lawyers) rejected that outright and said this was part of a political and diplomatic activity in a war zone, and not commercial in the sense, for example, of an exception to the Foreign Sovereign Immunities Act.  Probably right, or at least certainly plausible, though we never researched it – I suggested a specific waiver of immunity, but that was laughed away.  When I suggested to some of the EU partner countries that they provide a waiver, even with a monetary cap and a specific liquidated damages clause, I was told that even if their governments would agree, it would take forever to get it negotiated and approved.  (The world of private contracting for services in international war zones, disaster zones, and all that has expanded so much in the years since that the USG has much more worked out answers for contracting and dispute resolution in this kind of thing.)

Finally I wound up in this same discussion with whatever UN organs I was dealing with – and when I suggested that the UN might be liable to repay us for what was effectively paying the costs of a UN/Dayton countries program up front, they told me it was not possible under the Convention on Privileges and Immunities.  I called a friend who actually knew this legal area, and he said, tell them it’s a private law claim under Section 29.  When I suggested this, without actually knowing very much about it, I was told firmly that this was not private law under Section 29.  It was a political, diplomatic, public activity even though carried out through private contractors, including us as a private NGO and the companies we hired, and our activities would be considered public law claims if a dispute arose.  At that point, my principals decided to go ahead anyway, without any legal protections under a non-binding MOU, and hope to get repaid, so I never pursued it further.  (The project was more or less a failure, because the telecom teams couldn’t really get where they needed to go, and we wound up taking a loss.

Sorry, long anecdote that doesn’t actually say anything legally, except that it seemed obvious to UN officials at that time – not lawyers, but mid-level program officials – that pretty much anything done in connection with the UN in a place like Bosnia in the aftermath of signing the Dayton Accords was almost by definition not a private law claim covered by Section 29. This seemed strange to me, and I don’t know whether the lawyers would have clarified or refined this or said something different, because it seemed to me that even public law activities – in a sense activities covered under a public law document like the Dayton Accords – still would have private party activity, including private contracts for services.  The UN would constantly be doing stuff in disaster zones, war zones, all sorts of difficult places, using private contractors for many services under private contracts. Surely the UN would not claim that none of these would be covered by Section 29.  Why would anyone ever do business with the UN in that case?

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