How Broad is the UN’s Immunity? More on The Haiti Cholera Case

If you haven’t seen it yet, the US recently filed its amicus brief in the Haiti Cholera appeal – it is available here: Haiti US amicus 2nd Circ. Predictably, the brief makes the case for absolute external UN immunity, and advances largely the same arguments put forward in prior filings.

And yet, there are a number of powerful counterarguments to the position put forward by the US government.

• At the time the Convention on Privileges and Immunities of the UN (CPIUN) was drafted, the whole field of privileges and immunities of IOs was largely “uncharted territory,” and founding States projected what immunities they thought the UN would need with little information from practice;
• The legislative history of the CPIUN confirms that the biggest fear of UN founding states was the threat of a member state trying to control the UN, not classes of private plaintiffs bringing torts cases against the Organization;
• Article 105 of the UN Charter limits the Organization’s immunities before national courts to what are functionally necessary, and under Article 103, the Charter trumps conflicting treaties, arguably including the broader language of the CPIUN.
• Although settling claims might place a considerable financial burden on the Organization, the UN could purchase liability insurance to cover itself against large claims;
• The concern that Troop Contributing Countries will be deterred from cooperating with the UN if it has anything less than absolute immunity has no empirical support. In fact, what appears to be of far more concern to TCCs is the expansion of “robust” peacekeeping missions in which peacekeepers have an offensive mandate.

As a result, although the UN’s external immunities are clearly very broad, there is a very strong argument they are not absolute.  These arguments are advanced in my forthcoming article on the Haiti Cholera case (see bottom of post for more information).

In another important development, earlier this year the UN attempted to redefine the scope of its internal immunities, under Art. 29 of the CPIUN.

In a February 19, 2015 letter to Members of Congress, the Secretary General wrote:

“In the practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between private parties, such as, claims arising under contracts, claims relating to the use of private property in peacekeeping contexts or claims arising from motor vehicle accidents. . . . The claims in question were not receivable pursuant to Section 29 of the General Convention [as they] raised broad issues of policy that arose out of the functions of the United Nations as an international organization, they could not form the basis of a claim of a private law character [….] For the same reason, it was determined that these claims were not of the type for which a claims commission is provided under the SOFA, since the relevant provision of the SOFA also relates to claims of a private law character.”

A November 2014 letter from the UN’s Senior Cholera Coordinator to several Human Rights Special Rapporteurs reinforces the UN’s restrictive new interpretation of private law claims:

In the Practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between two private parties. Section 29(a) has most frequently been applied to claims arising under contracts between the United Nations and a private party, to those relating to the use of property in the context of a mission away from Headquarters, and to claims arising from vehicle accidents.

What is striking about these letters is that torts—other than those arising from motor vehicle accidents—have been eliminated from the scope of the UN’s duty to compensate for private injury.  In prior documents, the UN had included identified two much broader types of private law claims: commercial agreements that the UN has entered into, and claims by third parties for personal injury, death or property loss or damage, specifically as caused by actions of UN peacekeepers.           This recent categorical elimination of torts other than those arising from motor vehicle accidents is significant: injuries are predictable aspects of any peacekeeping operation, and they should not be designated as public simply because they affect the UN’s potential liability.

In parallel, the Secretary General suggested an enlarged category of public law claims for which the UN would be internally immune. The 2014 letter to the Human Rights Special Rapporteurs on the Haiti case states:

“Claims under Section 29(a) are distinct from public law claims, which are understood as claims that would arise between an individual and a public authority such as a State.” The letter goes to suggest that “on the international level, these claims may be addressed in various ways, such as through political, diplomatic or other means, including a body established for that specific purpose.”

For the full text click here:  Haiti Nov14 explanation to SRs

This wording is deeply troubling in that it largely eliminates the UN’s duty towards third-parties, despite the recognition in General Assembly resolution 52/547 that such duties exist.  In my article, I take issue with the UN’s attempt to redefine the scope of its internal immunities, and argue that member states should join the conversation about what immunities mean to the UN today.

For an early copy of “The United Nations as Good Samaritan: Immunity and Responsibility” forthcoming in the Chicago Journal of International Law (2015) please contact me at kristen.boon@shu.edu.