Developments in the Haiti Cholera Case: US supports absolute immunity of UN and two new suits filed

There have been some interesting developments this past week regarding the legal proceedings against the UN following the outbreak of cholera in Haiti in 2010.  For background on this tragic and politically sensitive case see my prior posts here, here, here and here.

Readers will recall that efforts to obtain compensation for the victims moved to US courts in October 2013, when the Institute for Justice & Democracy in Haiti initiated a law suit, Georges et al v. UN in the Southern District of New York.

On Friday, March 7, 2014, the United States filed an 18 page “statement of interest” in the case (at the request of the Court) in support of the UN’s absolute immunity from process.  The full document is available here.   It argues that all defendants, including the UN and MINUSTAH, are immune from suit, absent an express waiver.   Citing three cases on treaty interpretation, the statement of interest also asserts that if there is any alternative reading of the General Convention’s text, the Court should defer to the Executive Branch’s interpretation.

Another important development is that within the last week, two new suits have been filed against the UN, which seem to borrow from and overlap with the class of plaintiffs proposed in Georges et al. v. United Nations.    On March 6, Petit Homme Jean-Robert  et. al. v UN was filed by Emmanual Coffy, a Haitian American lawyer.

The case filed on Tuesday, Laventure v. UN, is another class action, and the press release states the attorneys involved have had experience in national tobacco lawsuits, the national BP gulf oil spill, and recent Goldman Sachs aluminum antitrust litigation.  The latter suit is of particular interest because the central argument is that the UN expressly waived its sovereign immunity in its 2004 agreement Status of Forces Agreement (SOFA) in Haiti.  The basis of this argument is para. 54 of the SOFA which states:  “Third-Party claims for…. Injury, illness or death arising from or directly attributed to (Stablization Agreement) shall be settled by the United Nations …. And the United Nations shall pay compensation.”

What should we make of all these developments?

There is no question that the UN’s immunity is extremely broad.   Privileges and Immunities are meant to protect the UN’s independent functioning and shield it from vexatious litigation.  Nonetheless, the position that the UN’s immunity is absolute deserves careful examination.

Section 2 of the General Convention protects the UN from any form of Process, while Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”   This has not happened in this case.  I argued in an earlier post that Article 29 mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

Courts have been willing to limit the immunities of IOs when no dispute resolution mechanism has been provided.  Following the 1997 cases of Waite and Kennedy, an employment dispute involving the European Space Agency, European courts have often linked immunities to “reasonable alternative means.”  To date, US courts have not followed this trend.  In a 2010 employment case in the Southern District of New York, Brzak v. UN, the Court found that the UN possessed absolute immunity.  Nonetheless, it is possible that the facts of the Haiti cases are such that the Courts will revisit this approach.

Another noteworthy contextual factor is that the US Government is acting defensively in supporting the UN’s absolute immunity.   If a state disregards an international organization’s immunity, it might give rise to allegations of international responsibility on the part of the forum state, which wrongly asserts jurisdiction over an international organization.  (See August Reinisch, International Organizations Before National Courts, 2000).   Moreover, the US is home to a number of important organizations, and the failure to uphold immunity would have consequences far beyond this case.  Nonetheless, the US Government’s position is to be contrasted with the efforts of individual congress members who have urged the UN to settle with victims.

If the UN has in fact waived its immunity, as the lawyers in the new case Laventure are attempting to prove, it provides a strong basis for these cases to proceed.  But I don’t read Art. 54 of the SOFA as a waiver of immunity.   It certainly does not expressly waive immunity.  Instead, this provision, like GA A/RES/52/247, the other instrument on which they rely, addresses limitations on UN liability, which is quite a different beast.

It has become apparent that this case is not going away.   It is very unlikely a US court will read down the UN’s immunity and permit the cases to proceed, and yet, there are different ways to dismiss a case, particularly given the facts here. Its also clear, however, that the victims have not yet had a satisfactory response from the UN, and that ultimately resolution must come from the UN itself.