UN faces a second Cholera Challenge in New York Courts

Waiver of immunity is at the center of another cholera case against the UN, this time in the Eastern District of New York.  In LaVenture et al v. United Nations, the plaintiffs argue that they have two distinct questions on waiver that distinguish this litigation from the recent decision upholding the UN’s absolute immunity in Georges et al.  The questions for the court in this new case revolve around waiver, and specifically:

whether the fact that the UN has stated, repeatedly and unambiguously, that they would accept liability for damages caused by UN peacekeeping forces not in the service of operational necessity is an express waiver of immunity from legal process as required by Article II, Section 2 (“Section 2”) of the U.N. Convention on the Privileges and Immunities of the United Nations (“CPIUN”). Flowing from this is a second, related question: whether, under Section 2 of the CPIUN, an express waiver of immunity is only effective if given in each single, individual claim, at the time such claim is presented before a court.

The Plaintiff’s most recent filing is available here LaVenture et al v United Nation[recent].

The facts of the Haiti cholera litigation are well known:  Multinational peacekeepers, members of the United Nations Stabilization Mission in Haiti (“MINUSTAH”), have been stationed in Haiti since 2004.  Their ranks swelled significantly in the aftermath of the deadly earthquake of 2010.  Some of these peacekeepers were from Nepal, a country which has endured an outbreak of Cholera.  While stationed in their barracks, human waste from the latrines from the MINUSTAH peacekeepers seeped directly into the groundwater and the Artibonite River — a lifeline for tens of thousands of local residents, many of whom are reliant on the river for drinking water. Shortly thereafter, a significant cholera epidemic emerged among the Haitian population.

Several suits stemming from the Cholera epidemic were filed in United States Federal Courts — originating from affected parties who reside in both Haiti and the United States.  Some blogs and reporting on the Georges et al case are here, here and here.  A complete set of legal documents regarding Georges et al is available on the website of the IIDH.

Currently, the Eastern District of New York is considering an almost-identical case in LaVenture v. United Nations. In light of the ruling in Georges, the Court asked the Plaintiffs to provide a reason why the case should go on, in spite of the Second Circuit precedent. They did so on March 30, 2017, asserting that the case is not moot and can be distinguished from Georges because the United Nations allegedly waived its immunity when the General Assembly passed a resolution promising payment for injuries and deaths caused by peacekeepers in 1998.   That resolution, A/RES/52/247, established that the United Nations will pay no more than $50,000 per person in damages for personal injuries or deaths, provided the complaint is filed within six months of the occurrence or its discovery. The standard for waiver as defined in the CPIUN requires “express” action by the Secretary-General in most circumstances. According to August Reinisch in The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, the wording “in any particular case” implies that advance waiver is generally impossible, and waiver by the executive must be in response to a case at hand.  If the court adopts this interpretation, the Plaintiffs’ argument — that a resolution passed more than a decade before the epidemic began can affirmatively waive immunity — is unlikely to succeed.

The United States submitted a statement of interest before the Court on May 24, 2017, arguing  the case should be dismissed. Although the Plaintiffs proposed an extensive scheduling order, the response of the Court, dated June 12, 2017, questioned the Plaintiffs’ legal reasoning and significantly limited the scope and time granted to the Plaintiffs to reply to the United States’ statement.  The documents filed are available here: LaVenture et al v United Nation~, LaVenture_et_al_v._United_Nati_25, LaVenture_et_al_v._United_Nati_24.

Thanks to my RA Chris Mrakovcic for his assistance with this blog post.