08 May In-House ‘Lawyering’ in International Organizations: The Case of Haiti
On 4 February 2020, Foreign Policy published an article, “U.N. Chief Faces Internal Criticism over Human Rights”. While the article categorizes failures on the part of the UN relating to the human rights mandate of the organization, I was struck by the allegations relating to the role of the UN’s lawyers, in particular regarding Haiti.
On 30 April 2020, the UN Special Rapporteur on extreme poverty and human rights, in his last day in that post, issued a statement with a number of other special rapporteurs highlighting the need to put this issue back on the agenda. In light of the Covid-19 pandemic, the statement emphasized the piecemeal approach of the UN in community assistance projects as inadequate, and addressed the need for effective remedies and reparations. These failures regarding Haiti were also brought up previously by the Special Rapporteur in a report to the UN General Assembly in 2016.
While there is a lot to say about the liability of the UN – and there are multiple posts that deal with this topic (here and here) – I focus here on the role of the lawyer in an international organization. Having worked in-house at an international humanitarian organization, the larger issues brought up regarding the role of counsel and in particular, in the protection of human rights, are worthy of greater exploration. But first, a bit of background.
Haiti and the United Nations Office of Legal Affairs
An outbreak of cholera in Haiti in 2010, which has killed approximately 10,000 individuals, has been attributed to a strain of the disease brought into Haiti by UN peacekeepers at the United Nations Stabilization Mission in Haiti (MINUSTAH). There have been attempts at mediation, and to bring legal claims against the UN, when it failed to admit legal responsibility. In the controversy surrounding the lack of response of the UN, the role of the in-house lawyers has been singled out for harsh criticism.
In 2016, the UN Special Rapporteur on extreme poverty and human rights in his report to the UN General Assembly, stated:
“From the outside, and to many on the inside, the reason seems to be that the legal advice given by the Office of Legal Affairs has been permitted to override all of the other considerations that militate so powerfully in favour of seeking a constructive and just solution. Rule by law, as interpreted by the Office, has trumped the rule of law.” (para. 72)
In his press statement in October 2016, based on the report presented, the UN Rapporteur does not mince words, and singling out the legal office, characterized its approach as based on a “patently artificial and wholly unfounded legal pretence for insisting that the Organization must not take legal responsibility for what it has done.” He also stated the approach “has been cloaked in secrecy: there has been no satisfactory official explanation of the policy, no public attempt to justify it, and no known assessment of its consequences for future cases. This goes directly against the principles of accountability, transparency and the rule of law that the UN itself promotes globally.”
There seems to have been a significant role of OLA in this situation, which brings me to the question – who do lawyers in-house serve and what is their role and function?
The client and the mandate
Lawyering 1-0-1 perhaps, but who do international organization in-house lawyers serve? Who is the ‘client’? The organization, the states that constitute the organization, the Secretary General or chief executive in charge of the functions of the organization, or all of the above? And what is the mandate of the organization, which should serve as the lodestone for the legal counsel, over all else?
In brief, to answer this question, foundational documents of the organization are the key. Specifically for the UN, the Office of Legal Affairs is meant to advise the Secretary General – and assist in the performance of core functions. Part of the Mission of the OLA includes, “To provide a unified central legal service for the Secretariat and the principal and other organs of the United Nations.” This follows the pattern in most other international organizations as well – the legal office affixed to the chief executive of the organization and is part of the secretariat functions –just by way of example, the OPCW (Article VIII, Convention on the Prohibition of Chemical Weapons), and a slightly different structure and type of organization, the IFRC (Article 27, Constitution).
Thus, in effect, the client is the secretariat and chief executive, and in most cases, states. This is a wide mandate indeed, but nonetheless, it is ultimately linked to the aim and the raison d’être of the organization.
I would argue that in these myriad functions, while ultimately the responsibility of the lawyers is to the organization, to the member states of the organization (if that differentiation may be made) and to the populations the UN serves, it is penultimately to the aim and mandate that must be the guiding principle – including in instances when some of these ostensibly seem to be in conflict. In the case of the UN, the Charter is clear in Article 1 which elaborates on the purposes of the UN:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
The aim of the UN is – while working with member states undoubtedly – in the larger goal and purpose of human rights, fundamental freedoms, rule of law, justice and accountability. There is no plausible explanation – short of legal gymnastics – which would permit the UN to escape responsibility for the added devastation that has been visited on Haiti. Some of the legal arguments that might have been made against such responsibility have been eviscerated in the Special Rapporteur’s 2016 report.
In safeguarding vulnerable populations that are served by international organizations, the duty to do no harm at the minimum should propel decision making. This would ensure that the organization is also protected, given decisions are taken based on the mandate and aim of the organization, as the guiding principle.
It is also worth pointing out that while lawyers do have a substantial say in many organizations as trusted advisors, it is also important that the responsibility for these decisions not be shifted. As many of us who have worked in these roles know, it becomes all too easy to shift the onus onto the lawyers – when there are hard decisions to be made at the management level. It is in the interest of all that decisions are made in keeping with the aims and responsibilities of the organization, and with the wider interest of justice and accountability, however difficult this may seem.