22 Feb UN Flatly Rejects Haiti Cholera Claim
After 15 months, the UN has finally responded to the Haiti Cholera claims brought by lawyers representing over 5000 victims. For background on this massive and tragic case, see my post here.
The UN’s rejection was communicated to the claimants’ lawyers via this two page letter which relies on a brief reference to the Convention on Privileges and Immunities in support of the decision. The operative paragraph of the letter is as follows:
“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 of the Convention on Privileges and Immunities of the UN requires the United Nations to “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”.
This provision mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.
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.
Many elements of a “dispute of a private law character”, however, would appear to be present: the claim itself was essentially one of tort, the claimants were private individuals (represented by an NGO), and the remedy sought was monetary compensation. This distinction clearly troubled the claimants lawyers as well, as their press release makes clear.
The upshot of this communication 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.
Does anyone have views as to whether the UN’s assertion that this is a public law claim is supported by the law or past practice? If this distinction between public and private claims was so clear, it is surprising that the UN took 15 months to respond, and then in such a terse manner.