An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York. For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal. Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development. Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN. Three amici spoke on behalf of plaintiffs.
In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN). This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.
In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case. According to the US government, Article 29 cannot be read as a condition precedent to Article 2.
Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities. He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents. He both orally acknowledged that he is bound by 2nd circuit precedent, and cases like Brzak, in which the UN’s immunity was found to be absolute, and expressed interest in whether courts elsewhere have faced a similar question or come to a different conclusion with regards to the scope of the UN’s immunities. He was interested in Plaintiffs argument that there is a fundamental bargain between member states behind the CPIUN, which, if breached by the UN’s decision not to provide an appropriate mode of settlement, might be a basis to lift the immunity protections under the CPIUN. Using terminology from contract law, he asked the US government if the UN were not in material breach of the treaty in this instance, for failure to provide a mechanism to resolve the claim. He also engaged in a close reading of the text of the CPIUN – noting that Article 29 says that the UN shall provide appropriate modes of settlement, not may or might. Moreover, he challenged both parties about venue, asking whether, pursuant to Article 30 of the CPIUN, the ICJ wasn’t the better forum to resolve questions of interpretation, such as the relation between Articles 2 and 29, and why Haiti or the US couldn’t refer such a question to the ICJ.
From my perspective two issues that were not addressed by the parties in oral argument that seem important to the resolution of the case involve the distinction between public and private law disputes, and the status of private parties within the CPIUN. To recall, the plaintiffs take the position that the claims in this matter are private (sounding in tort, involving a request for compensation for death or injury), whereas the UN’s response to their initial complaint stated that the claim was not receivable because it would involve a review of political and policy matters. The UN did not provide reasons for this characterization. Given the centrality of the distinction between public and private law definitions under Article 29 with respect to the obligation to provide appropriate modes of settlement, clarity about the definition of public versus private law will be important to this and future such cases against International Organizations like the UN. Second, the status of the claimants, here private individuals who were never part of the ‘grand bargain’ underlying the CPIUN between UN member states was not explored, yet this seems significant to the question of material breach.
Judge Oetken has reserved judgement, and a decision in this case is not expected before the new year. Two other class actions have been filed in US courts and are currently pending.
For background on this case, please see my prior blogs on Opinio Juris and an October 17 program on CBC Radio entitled “The Current” in which journalists, lawyers, and an independent academic (myself) were interviewed. http://podcast.cbc.ca/mp3/podcasts/current_20141017_93209.mp3