Haiti Cholera Battle Against UN Moves to US Court

by Kristen Boon

After receiving a staunch “no” from the UN earlier this year, lawyers for Haiti Cholera victims filed a class action lawsuit in the Southern District of New York today.  The complaint is available here.   The complaint seeks certification of a class that is composed of cholera victims who are Haitian and US citizens. The basis of the class action is that the plaintiffs have a right to a remedy under Haitian tort law, and includes a request for relief on the basis of wrongful death, and infliction of emotional harm.  Moreover, in reference to international law, the plaintiffs assert:

Defendants UN and MINUSTAH have well-established legal obligations to provide redress to victims of harm caused by acts or omissions attributable to the Defendants, which includes the members of the proposed Class. The Convention on the Privileges and Immunities of the UN of 1946 (“CPIUN”) expressly requires Defendant UN to provide appropriate modes of settlement for third-party private law claims. The Status of Forces Agreement (“SOFA”) signed between Defendant UN and the Government of Haiti expressly requires the UN to establish a standing claims.

To date, the UN has denied legal responsibility on the basis of Article 29 of the Convention on Privileges and Immunities stating that the claim is not receivable.  Presumably, the justification is that this is a public rather than a private law claim, although the UN’s response did not spell this out, as I discussed in an earlier blog here.  What the UN has focussed on instead is a fund for improved sanitation and water infrastructure.

Pressure on the UN has mounted.  On Tuesday, the UN High Commission for Human Rights, Navi Pillay, urged the UN to compensate the victims, although she did not state where that money should come from. An important report produced this summer by students and professors at the Yale Law School Transnational Clinic has also called for compensation.   In addition, the UN Independent Panel of Experts convened in 2011 to investigate the source of cholera in Haiti published a new academic article this summer that concluded that MINUSTAH was the most likely source of cholera in Haiti.  The precise language they use is:

“The preponderance of the evidence and the weight of the circumstantial evidence does lead to the conclusion that personnel associated with the Mirebalais MINUSTAH facility were the most likely source of introduction of cholera into Haiti.”

Even Haiti, conspicuously silent about the potential responsibility of the UN for this outbreak, changed its tune at the recent General Assembly meetings and where its Prime Minister argued that the UN has moral responsibility for the outbreak.

The complaint deals only briefly with the question of privileges and immunities, which is likely to be the UN’s first defense.  As I noted in this blog, this will be an obstacle the plaintiffs are unlikely to surmount.  Nonetheless, I suspect the lawyers are seeking a different kind of victory here.  They are exposing the limits of the UN’s internal justice system, forcing the public to focus on the disastrous health consequences of the cholera epidemic in Haiti, and highlighting the accountability gap that has emerged in light of the refusal to establish a claims commission.

http://opiniojuris.org/2013/10/09/haiti-cholera-battle-un-moves-us-courts/

3 Responses

  1. Kristen,

    Having quickly perused the complaint, it appears the claims for relief sound in Haitian tort law.  Some claims allege traditional tort violations (like nuisance or negligence), while other claims allege that an international law violation constitutes a reckless and grossly negligent act under Haitian law.

    Paragraph 54 of the Complaint, for example, states that “Haitian law also incorporates into its national laws all international treaties that are duly ratified by the Parliament of Haiti.  Included among those treaties are prohibitions on violating the right to life and the right to health.”  

    Especially in monist states, this move of alleging an international law violation as a foreign tort is extremely interesting.  Choice-of-law analysis certainly would seem to favor the application of Haitian tort law over New York tort law, which does not appear to be alleged in the complaint.
     
    Who needs the Alien Tort Statute when you can invoke international law via foreign law?

    Roger Alford

  2. An important point Roger, thanks! I have updated the post.

     

  3. I was quoted in a New York Times piece re: the majority view is that there would be immunity.  What I added was not quoted — that I am one who nonetheless made an argument (in Harv. Int’l L. J. online) for nonimmunity with respect to violations of human rights law in view of U.N. and U.N. entity obligations under UN Art. 55 and the UN Art. 103 override of any inconsistent treaty regarding a lack of access to courts and an effective remedy.  See http://ssrn.com/abstract=1710744  We communicated re: the differences between fault (negligence), reckless disregard, and intentional conduct, and I suspect that such will be important before the court.

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