Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims.
The Plaintiffs asked for the UN to respond within 60 days. That period ended on July 6, and sadly but perhaps unsurprisingly, the UN has not budged. The UN responded to claimants, reiterating that the claims would involve a review of political and policy matters. The other communication forthcoming during this period was a July 5 letter under the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress. This letter responds to a separate letter by Congresswoman Waters about the cholera epidemic, and reiterates that the UN has determined the claims are not receivable under Section 29 of the Agreement on Privileges and Immunities.
Criticism of the UN’s response to the Cholera claims has been widespread. As I noted in an earlier post, the reliance on Article 29, which distinguishes between public and private claims, is questionable. In a recent paper on the topic, Professor Frederic Megret notes that one of the problems of the public / private distinction is that due to the “internal, confidential and unilateral” character of the review boards’ procedure the UN has never provided a clear definition of public or private. A guide to UN practice is available here.
The lawyers for the plaintiffs state that they will now file a case against the UN in a domestic court. I predict this will be an uphill battle. Although the UN could and sometimes does waive its immunity under Section 2 of the Agreement on Privileges and Immunities, its posture thus far suggests it will not do so here. Assuming the UN asserts its privileges and immunities as an affirmative defense before a domestic court, it will probably be successful There are some decisions in which courts are amenable to limiting the immunities of IOs where there is no available forum, employment cases such as Waite and Kennedy are an example. If a court were to follow the “no reasonable alternative” reasoning in the Haiti case, the plaintiffs might have a shot.
A recent case against the UN in the Netherlands involving the massacre at Srebrenica illustrates the strength of the UN’s privileges and immunities. In the Mothers of Srebrenica judgement, the Hague Court of Appeals affirmed the UN’s absolute immunity, but found the Dutch state responsible under international law. This was a compelling set of facts to safeguard IO immunities to be sure: a peacekeeping mission, the use of force, and an alternative respondent: the Dutch state.
The takeaway, I believe, is that domestic courts will not provide a satisfactory alternative either. One mechanism that is available – at least in theory – to the plaintiffs is a request for an ICJ advisory opinion under Article 30 of the Agreement, if someone else takes up the cause:
SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.
Under this provision, a UN organ could make the request, although again, this seems unlikely.