Shifting Demands in International Institutional Law: Securing the United Nations’ Accountability for the Haitian Cholera Outbreak
© T.M.C. Asser Press and the authors 2015
Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_77. Shifting Demands in International Institutional Law: Securing the United Nations’ Accountability for the Haitian Cholera Outbreak
(1)
Faculty of Law, Monash University, Melbourne, Australia
Abstract
The permanent legal framework governing international organisations vests organisations with a substantial degree of autonomy in determining their own liability with respect to private law claims. This level of autonomy is particularly pronounced in the case of the United Nations. Since 1946, the United Nations has enjoyed a standard of absolute immunity from the jurisdiction of domestic courts in order to protect the organisation’s proper functioning. Thus, when individuals have private law claims against the organisation, the UN is obliged to settle claims privately, and individuals have no further recourse to courts. This regime creates a startling accountability gap, most recently highlighted by the UN’s handling of 5000 private law claims which emerged in response to the allegedly negligent importation of cholera into Haiti by UN peacekeepers. To date, the UN has refused to settle these claims amicably. The UN’s jurisdictional immunity now operates as a critical barrier to redress for the cholera claimants. This remedial deficit represents a structural gap which is indefensible in light of a shifting paradigm in international law, which increasingly favours human rights and respect for the rule of law over the autonomy of international organisations. This article examines both permanent and temporary solutions to closing this accountability gap, which could potentially alleviate the intractable position faced by the cholera claimants and similar victims in the future.
Keywords
AccountabilityInternational organisationsHuman rightsJurisdictional immunityMothers of SrebrenicaRemediesUnited NationsKate Nancy Taylor is a legal researcher at the Monash University, Department of Business Law and Taxation. The author would like to thank Professor Sarah Joseph, for her kind supervision during the preparation of this paper.
7.1 Introduction
In 2010, a Nepalese contingency of United Nations (UN) peacekeepers brought cholera to Haiti, a country recently devastated by an earthquake. The UN’s haphazard disposal of human waste at its peacekeeping base allowed raw sewage to flow directly into one of Haiti’s main sources of drinking water. The sanitation conditions at the UN base were contrary to well-established standards on the treatment of wastewater in humanitarian missions. The introduction of the cholera bacteria into Haiti’s water supply triggered an epidemic, causing the death of more than 8,000 people, and the illness of 700,000 more.1
The prima facie negligent circumstances surrounding the cholera outbreak have given rise to thousands of claims in tort for compensation against the UN. The UN has intimated that it will not address these claims, and as such, the victims of the cholera outbreak have not been afforded any redress for their personal injury and death arising from acts attributable to the UN.
The legal accountability of the UN is governed by a unique regime that treats private claims against the organisation differently from private claims against other legal entities. Namely, the UN has jurisdictional immunity before domestic courts. In the case of private law disputes, the UN has an obligation to make provisions for alternative modes of dispute settlement. The UN is vested with this jurisdictional immunity based on the organisation’s need to conduct its operations free from interference by domestic courts.
The cholera claims raise serious, and arguably novel questions about the legal accountability of the UN and other international organisations (IOs)2 with similar immunity standards. Presently, there is no independent court with jurisdiction to review the UN’s decisions regarding its own liability. Although the UN has a duty to settle private law disputes amicably, the organisation has sole discretion over when and with whom it does so. As the UN has decided not to settle the cholera claims, the claimants appear to have no other mode of recourse to obtain redress for their harm.
The central thesis of this paper is that the remedial deficit faced by the cholera claimants is indefensible in light of a shifting paradigm in international law, which increasingly favours human rights and respect for the rule of law over the autonomy of IOs. Arguably, the cholera claims are the first claims against the UN, which truly expose the extent of the structural gap in the present accountability regime. As the UN ordinarily settles its private law claims amicably, questions about the role of the rule of law and human rights in the UN’s treatment of private law claims have not been extensively examined by the academic community. The UN’s unsatisfactory treatment of the cholera claims now demands that these issues be examined more thoroughly. It is imperative that the present institutional framework, first conceived of in 1946, adapts to new demands of human rights and the rule of law.
7.2 The Responsibility of the UN for the Cholera Outbreak
It has now been credibly established that the UN’s peacekeeping mission in Haiti, MINUSTAH,3 was the source of the importation of cholera into Haiti.4 The Nepalese contingent of UN peacekeepers, comprised of 1280 personnel, was exposed to a cholera epidemic in Nepal immediately prior to their deployment to Haiti in October 2010. The contingent was not screened for cholera before arriving in Haiti. The Nepalese peacekeepers were then stationed at the MINUSTAH camp in Mirebalais, established above the Meille Tributary, which flows into the Artibonite River, Haiti’s largest river. The Artibonite River is a critical source of water in central Haiti.5 Shortly after the peacekeepers arrived, the first cases of cholera appeared in a village downstream from the MINUSTAH camp6 Epidemiologists observed sanitary deficiencies, including a pipe discharging sewage from the camp directly into the Meille Tributary.7 According to the UN’s Independent Panel of Experts investigating the outbreak, the sanitation conditions at the MINUSTAH camp were not sufficient to prevent fecal contamination of the Meille Tributary.8 DNA fingerprinting of the vibrio cholera isolates from Haiti and Nepal collected during 2010 was a ‘perfect match’.9
While it is accepted from an epidemiological and microbiological perspective that MINUSTAH peacekeepers imported cholera into Haiti, the more controversial aspect of the case relates to the legal accountability of the UN for its role in causing the outbreak. The UN, as a legal entity, is responsible for the wrongful acts committed by personnel under its effective control and command.10 Thus, claims relating to damage caused by UN peacekeepers under the organisation’s control are properly addressed to the UN, rather than to the host state receiving the peacekeeping contingent (Haiti) or the state deploying the troops (Nepal).11 In November 2011, 5000 victims of cholera submitted a Petition of Relief to the UN claiming compensation for wrongful death and personal injury.12 The claimants alleged that the cholera outbreak was directly attributable to the negligence, gross negligence and/or recklessness of the UN and its subsidiary, MINUSTAH.
Without attempting to examine the merits of these allegations, this chapter examines the remedial mechanisms available to private law claimants once a prima facie case in tort against the UN has arisen. The UN has a clear obligation to settle private law claims under Section 29 of the Convention on the Privileges and Immunities of the United Nations (hereinafter General Convention).13 The Secretary–General has confirmed that ‘claims for compensation submitted by third parties for personal injury or death … incurred as a result of acts committed by members of a UN peacekeeping operation’ are claims ‘of a private law character’.14
To date, the UN has maintained that the cholera claims are not a private law dispute which would require settlement according to the UN’s own procedures.15 The organisation has stated:
With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable pursuant to Section 29 of the [General Convention].16
Owing to the UN’s jurisdictional immunity, the cholera claimants are unable to seek review of the UN’s decision before a domestic court. Despite this, three separate class action suits against the UN have been filed in courts in New York in respect of the cholera outbreak since October 2013.17 The claimants argue that US courts should deny the UN’s jurisdictional immunity in light of the organisation’s failure to settle the claims according to its own procedures. The US courts have not yet decided whether the UN’s immunity would apply in these circumstances.
7.3 The UN’s Jurisdictional Immunity
It is unlikely, despite the New York filings, that the cholera claims will be heard before a domestic court. In its member states, the UN enjoys sweeping exemptions from legal process, which includes jurisdictional immunity barring any domestic suits against the UN, and immunity from execution or enforcement measure.18 The legal basis for the UN’s legal immunity with respect to the cholera claims is contained within the UN Charter,19 the General Convention,20 and the Status of Forces Agreement concluded between the UN and the Government of Haiti (‘UN-Haiti SOFA’).21 Since the earliest days of the UN’s existence, its jurisdictional immunity has been a stalwart feature of the international institutional legal order. Deeply ingrained in the Charter, General Convention and UN peacekeeping practice, it does not look set to change.
The UN Charter specifies that the UN possesses juridical personality in its member states.22 By virtue of this juridical personality, the UN can be the subject of legal duties and legal rights, of performing legal transactions and of suing and being sued.23 However, this juridical personality under Article 104 is immediately coupled with broad legal immunity. Article 105(1) of the Charter provides that the UN ‘shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purpose.’24
The General Convention further defines the scope of the immunity granted by the Charter. Section 2 of the General Convention specifies that the UN shall enjoy immunity ‘from every form of legal process’ unless the UN ‘has expressly waived its immunity.’25 Thus, the General Conventions extends the ‘functional’ scope of the immunity under the Charter, and vests the organisation with a standard of absolute immunity.26 The UN’s power to waive its immunity under Section 2 of the General Convention is discretionary, and the UN is under no legal obligation to do so.27 The Secretary–General has not shown any willingness to waive the organisation’s immunity with respect to the cholera claims.
The UN-Haiti SOFA affirms that MINUSTAH, as a subsidiary organ of the UN, enjoys the status, privileges and immunities of the UN in accordance with the General Convention.28 Thus, by virtue of the SOFA, MINUSTAH enjoys absolute immunity from every form of legal process. This operates as a contractual form of legal immunity, existing between the Haitian government and the UN. The legal immunity granted to MINUSTAH peacekeeping forces is not peculiar to the Haiti mission. The UN-Haiti SOFA is a replica of the ‘Model SOFA’ promulgated by the Secretary–General in 1999,29 the terms of which have formed the legal basis of all UN peacekeeping operations since its introduction.
As expressed in the UN Charter,30 the organisation’s jurisdictional immunity is based on the notion of functional necessity. By providing for absolute immunity under the terms of the General Convention, member states were in agreement that individual states should not be able to hinder the effective working of the UN through their domestic courts.31 Thus, the grant of jurisdictional immunity operates to secure the organisation’s independence and attempts to guarantee its functioning. McKinnon Wood also stressed that the organisation must be protected against baseless actions ‘brought by the numerous cranks, fanatics or cantankerous people who may believe that … they have suffered wrongs’ at the hands of the UN.32 However, the effect of absolute immunity also leaves individuals with credible claims without the protection of domestic courts.
Domestic courts have always upheld the absolute character of the UN’s jurisdictional immunity. The UN’s immunity was most recently cast into light by the Mothers of Srebrenica litigation, which came before the Supreme Court of the Netherlands in 2012.33 The plaintiffs alleged that the UN was liable for the failure of Dutch peacekeepers operating under a UN mandate to prevent the genocide against Bosnian Muslims at Srebrenica in 1995.34 The Supreme Court of the Netherlands confirmed that Dutch courts were not competent to hear the action directed against the UN. Even though the prohibition on genocide was a particularly grave matter of international law and a rule of jus cogens, the seriousness of the subject matter was thought not to have been capable of overriding the organisation’s immunity.35 The Court found that the only possible interpretation of the immunity defined in the General Convention is that the UN is entitled to the most far-reaching immunity, ‘in the sense that the UN cannot be summoned to appear before any domestic court in the [160] countries that are parties to the [General Convention].’36
In light of the absolute character of the UN’s jurisdictional immunity, it is unlikely that a domestic court would be willing to hear a substantive review of the cholera claims in tort. Any reading of the Srebrenica judgments lead inexorably to the conclusion that the UN’s jurisdictional immunity has always been, and it will ever be thus. The remote possibility of a domestic court adopting a different approach to the UN’s immunity, based on the claimants’ right of access to a court, will be discussed further in Sect. 7.5.
7.4 Alternative Modes of Dispute Settlement
7.4.1 The UN’s Obligation to Settle Private Law Disputes
Crucially, the jurisdictional immunity enjoyed by the UN is a purely procedural barrier to domestic courts; it is not intended to diminish the organisation’s substantive liability. The International Court of Justice (ICJ) has confirmed that the question of jurisdictional immunity is distinct from the issue of compensation for any damages incurred as a result of acts of the UN.37
However, the UN’s jurisdictional immunity substantially changes the mode of adjudication of claims against the UN, which would apply if the same acts were attributable to a private party or a state. It falls upon the UN to establish alternative mechanisms for the settlement of private law disputes. These mechanisms are intended to fill the accountability gap that otherwise faces individuals with private law claims against the UN. Noting that ‘procedural justice is an essential pre-condition for substantive justice’,38 it becomes clear that the existence and effective functioning of an alternative mode of dispute settlement is central to the realisation of substantive justice for the cholera claimants. The following section will examine the present accountability structures which are in place, in theory, to address questions of liability of the UN’s wrongful acts.
The UN’s obligation to make provision for alternative settlement modalities exists under Section 29 of the General Convention, which reads as follows:
The United Nations shall make provisions for appropriate modes of settlement of:
(a)
Disputes arising out of contracts or other disputes of a private law character to which the UN is a party.
As the UN is placed outside the jurisdictional reach of domestic courts, and as yet, there is no international court with authority to bind the UN, adherence to the legal obligation under Section 29 of the General Convention rests on the political goodwill of the UN. The imperative to do so has, in the past, attracted fairly strong attention as a matter of UN policy. In 1965, the Secretary–General stated:
It has always been the policy of the UN, acting through the Secretary-General, to compensate individuals who have suffered damages for which the Organisation was legally liable. This policy is in keeping with generally recognised legal principles and with the [General Convention].39
7.4.2 Would the Cholera Claims Fall Within the Scope of the UN’s Liability?
It is necessary to establish whether the cholera claims constitute a ‘private law dispute’, which must be settled by the UN. The UN has argued that the claims ‘are not receivable’ pursuant to Section 29 of the General Convention. In opposition to the UN’s stance, the following section will illustrate that, having regard to the nature of the cholera claims, the UN has an obligation to hear the claims under the terms of its own liability regime.
In 1996, the Secretary–General published a report which addresses the scope of the UN’s liability for the activities of UN peacekeeping forces, as well as procedures for the handling of third-party claims and the limitations to its liability.40 The parameters set out in that report do not appear to preclude the UN’s liability with respect to the cholera claims. There are three key issues which must be addressed to illustrate that point. Firstly, it must be shown that the cholera claims constitute a prima facie private law dispute in tort. Secondly, it must be shown that the damage suffered by the claimants did not arise out of ‘operational necessity’, an accepted exemption from liability under the Secretary–General’s report. Thirdly, it is necessary to show that the UN’s stated response that the claims are not receivable—because they entail a ‘review of policy and political matters’—is not an exception to liability under the UN’s established regime.
7.4.2.1 A ‘Private Law Dispute’
Both the General Convention and the UN-Haiti SOFA clearly indicate that the UN will make provisions for the settlement of ‘private law disputes’ only. The UN has stated that personal injury arising from the ordinary operation of the UN forces is one of the most commonly encountered private law claims.41 Affirming the cholera claims’ private law character, the UN’s maintenance of the sewage systems at the peacekeeping base can be considered a prima facie tort claim, which could have been brought before any domestic court in the world as a civil claim but for the organisation’s jurisdictional immunity.42 Tort claims brought by private parties ‘fit squarely within the definition of private law claims’.43
However, not all claims brought by private parties can be characterised as private law claims. Here, a distinction can be drawn between the private law character of the cholera claims, and a claim brought by private citizens against the UN asserting that peacekeepers wrongly exercised their strategic or policy-making discretion that led to individuals suffering harm.44 The latter type of claim was argued in the Mothers of Srebrenica case. In that case, the UN refused to settle the dispute concerning its alleged failure to prevent genocide on the basis that it was not a private law dispute. In the cholera case, the acts and omissions causing the harm were not done pursuant to any strategic function of the UN. The liability question, arising from damage caused by the sanitation conditions at the MINUSTAH camp, does not touch upon UN policy decisions. Rather, the conduct that caused harm relate to the failure of the UN to abide by numerous codes in place for humanitarian assistance regarding the treatment of wastewater.45 Rather than being ‘policy decisions’, the UN’s maintenance of the sanitation facilities at its peacekeeping base appears to have occurred contrary to the UN’s policy.
7.4.2.2 Matters of Operational Necessity
The UN’s obligation to settle third-party claims in Haiti extends to claims for personal injury, illness and death, except for those arising out of operational necessity.46 This exception applies where the UN causes damage arising out of the necessary actions of a peacekeeping force in the course of carrying out its operations in pursuance of its mandate.47 The rationale for this exemption from liability is that by inviting a peacekeeping force into its territory, the host state has consented to damage arising from the ordinary operations of the peacekeeping force.48 For an action (and liability for its consequent damage) to fall within this exception, ‘the action must be strictly necessary and not a matter of mere convenience or expediency’.49 In the present case, the matter of operational necessity as an exception to liability does not seem to be at issue,50 and the UN has not sought to invoke the exception.
7.4.2.3 Refuting the UN’s ‘Policy and Political Matters’ Response
The UN has communicated that the cholera claims are not the sort of dispute of a private law character envisioned by Section 29 of the Convention. The only elaboration provided by the UN is that, ‘with respect to the claims submitted, considerations of these claims would necessarily include a review of political and policy matters’.51 Some critics of this stance have argued that ‘such a bald statement is baffling on its face, because no such exception to section 29 exists’.52 There appear to be two potential interpretations of the UN’s statement, both of which can be refuted.
Firstly, the UN could be arguing that because the claims ‘necessarily include a review of political and policy matters’, the claims are not of a private law character. There is no doubt that the cholera outbreak in Haiti has implications for the policy and practice of UN peacekeeping operations. For example, the UN’s Independent Panel of Experts on the Cholera Outbreak in Haiti gave seven key policy recommendations based on the findings of the report.53 However, those implications are conceptually distinct from the matter of compensation for personal injury and death arising from the UN’s activities.
The claim that the UN’s liability in the present case would necessarily entail a ‘policy review’ is a truism that does not exempt the organisation from liability. A policy review by the UN in the present case would necessarily flow from liability in the same way that a civil suit ordinarily prompts a party to review its offending behaviour. If conduct gives rise to liability, it is prudent for a party to try to prevent that conduct from reoccurring, so as to avoid future liability. Alvarez notes that ‘virtually all tort claims … raise questions about the day to day policies of the entity being sued’.54 It is not tenable to conclude that such a review reduces the liability of any party for its tortious conduct. It has never been mentioned by the UN as an exemption from liability that would render claims ‘not receivable’.
A second interpretation of the UN’s statement could relate to the fact that answering the dispute would entail questions about the adequacy of the UN’s practices. Presumably, such questions could constitute interference with UN policy decisions. This argument draws upon one of the primary rationales of jurisdictional immunity—namely that the functioning of international organisations would be seriously hampered if national courts could make pronouncements over the UN’s policy decisions.55 That argument could be plausible in relation to claims that a duty of care was breached by failing to require the UN peacekeepers to be tested for cholera prior to deployment. But the argument would not be tenable in relation to claims that the sanitation conditions at the peacekeeping base did not meet applicable standards. In the first case, the question would address the adequacy of UN standards—namely the fact that the UN does not currently require asymptomatic peacekeepers to be tested for cholera prior to deployment.56 In the second case, the question would go towards whether the UN’s practices were in conformity with standards that were already in place regulating the treatment of wastewater in humanitarian missions. To deny review in the second case would be tantamount to the UN refusing to compensate an individual injured by a negligently driven peacekeeping vehicle, because answering the dispute would involve a review into the conduct of the driver. This second interpretation of the UN’s argument would problematically entail that it was pursuant to UN policy that the sanitation conditions at the peacekeeping base were insufficient to prevent fecal contamination into the Artibonite River.
It is particularly problematic for the UN to assert that a private law dispute, which would necessarily entail review of political or policy matters, cannot be settled under Section 29 of the General Convention. The flagrancy of that argument is illustrated by recalling the primary rationale behind Sections 2 and 29 of the General Convention (granting absolute immunity and the obligation to provide alternative modes of dispute settlement respectively). Specifically, the UN is granted jurisdictional immunity in domestic courts based on the need to preclude judgments from being made about UN policy by domestic courts. Thus, the grant of immunity was coupled with an obligation to establish alternative modes of disputes settlement, which would be competent to settle private law disputes, which might entail questions about UN policy. Such claims are deliberately placed outside the purview of domestic courts and precisely into the jurisdiction of the UN’s own settlement mechanisms.
7.4.3 Dispute Settlement Mechanisms in UN Peacekeeping Operations
If it is accepted that the cholera claims constitute a private law dispute which must be settled by the UN, there remains the question of what form of dispute settlement mechanism should be utilised by the UN in this case.57 There are two alternative modes of dispute settlement, which are relevant for individuals who suffer damage as a result of the tortious actions of UN peacekeeping operations: standing claims commissions—originally envisaged by the UN-Haiti SOFA—and the local claims review board process—constituting current UN practice for the settlement of private law disputes. These mechanisms will be examined in turn.
7.4.3.1 The UN’s Standing Claims Commissions
The UN has an obligation under para 55 of the UN-Haiti SOFA to establish a standing claims commission in Haiti. The claims commission is intended to have ‘compulsory jurisdiction to settle third-party claims’ brought against MINUSTAH.58 This contractual obligation under the UN-Haiti SOFA is similarly incumbent on the UN in all its peacekeeping missions.59 In practice, however, the standing claims commissions envisioned under the UN SOFAs have never been established. In November 2011, the cholera claimants tried without success to submit their claims to the UN to be heard before a claims commission.60 The UN has expressly refused to establish a standing claims commission in Haiti.61
In theory, claims commissions are supposed to be a proportionate counterweight to the UN’s jurisdictional immunity, and the effect that immunity has on claimants who would have otherwise been eligible to have their claims heard in a domestic court. The UN SOFAs are drafted ‘in conformity’ with Section 29 of the General Convention,62 as the claims commissions are to provide the specific mode of dispute settlement for claims arising from peacekeeping operations.
The claims commissions were envisioned by the UN to afford claimants certain safeguards of adjudicative independence and impartiality. If it existed, a claims commission in Haiti would be comprised of three members—one appointed by the UN Secretary-General, another appointed by the Haitian government, and a chairman jointly appointed by the Secretary-General and the government.63 The Secretary-General has proffered that the claims commissions would thus provide a model under which the organisation and host state are ‘on equal footing’.64 However, Wellens rightly notes that the Secretary-General’s claim is unsubstantiated, as there is no acquired operational experience against which the effectiveness of such a procedure can be judged.65
The cholera case illustrates that the most glaring deficiency in the claims commission regime is that there is no legal recourse available to individuals in circumstances where the UN has unilaterally refused to establish the commission. The obligation to establish a claims commission in accordance with the SOFA exists as a contractual obligation as between the UN and Haiti. Under the terms of the SOFA, there is a mechanism available to the Haitian government to trigger the establishment of the claims commission with the intervention of the President of the ICJ.66
However, the institutional strength of the Haitian government, its close dependence on the UN for its security, and international donors for its economy,67 renders this an unlikely outcome in the cholera case. These power differentials severely compromise the capacity of the Haitian government to protect its citizens from the wrongful conduct of the UN. For instance, at the time of the outbreak in 2010, the MINUSTAH budget was equivalent to approximately one-third of the Haitian government’s total annual budget for all government services.68 The Haitian government is also heavily dependent on foreign aid, much of which is channeled through the UN. Haiti’s dependency on aid ‘has contributed to the government’s reluctance to assert the rights of its people vis-à-vis the UN.’69
It is therefore unlikely that the Haitian government will take action to counter the UN’s refusal to establish a claims commission. To date, it has shown no willingness to intervene on the cholera claimants’ behalf. Problematically, it appears that the strength of the claims commission mechanism presupposes a functioning and efficient government with political capital to spend against the world’s largest IO. In practice, states that require peacekeeping operations are unlikely to have the political power to engage in such a procedure. It does not appear likely that the UN will establish a standing claims commission according to its SOFA obligations. The fact that the current accountability regime does not provide an additional safeguard to apply in such circumstances is a substantial accountability gap in the current framework.
7.4.3.2 Local Claims Review Boards
In practice, private law disputes arising out of UN peacekeeping operations are settled through internal ‘local claims review boards’ (‘LCRBs’).70 UN practice has favoured the use of these ad hoc boards over the more formal standing claims commissions. LCRBs are routinely created in situ by peacekeeping missions to settle third-party claims ‘when the need arises’.71 The settlements and ex gratia payments made by a LCRBs are never publicly disclosed.
As the UN has deemed the cholera claims to be ‘not receivable’, the settlement of the claims through an LCRB is unlikely. Nevertheless, it is worth examining the ways in which an LCRB would work if the UN attempted to provide such recourse to the cholera claimants.
As an internal body of the UN, an LCRB is composed exclusively of UN staff members. The composition of the board in this way inevitably ‘leaves the investigation, processing and final adjudication of the claims entirely in the hands of the Organisation’.72 This has prompted the International Law Association (ILA) to raise serious concerns about the independence of the boards and the objectivity of their rules. The ILA has argued that the procedure is not an adequate alternative to domestic courts to ensure the protection of private individuals’ interests and rights.73
It can be argued that an LCRB is not an appropriate forum to hear cholera claims, which involves thousands of claimants and could involve complex issues such as causation and remoteness in tort. Significantly, a typical LCRB consists of staff members ‘performing administrative functions’, and will include a Legal Adviser, or a staff member with legal training ‘where possible’.74 Thus, there are serious questions to be asked about its competency in general to settle private law disputes. In 1996, the Secretary-General noted that the increasing number and complexity of claims that had arisen from UN operations had taxed the ability of the organisation to deal with claims efficiently and promptly, leading to unfair delays to claimants.75 Alvarez has noted that the UN is ‘better at accepting its legal responsibilities’ when the responsibility involves ‘small-scale’ breaches of tort law, such as car accidents involving UN peacekeepers.76 An internal administrative procedure could be appropriate in those cases. However, it cannot be realistically suggested that an LCRB, constituted in its ordinary form, would be competent to decide the organisation’s liability and compensation orders regarding the cholera claims. The limitations of the LCRB process expose the enormous remedial deficit faced by individuals injured by UN peacekeepers.
7.5 Shifting Demands in the Law of International Organisations
7.5.1 Would a Domestic Court Be Willing to Adjudicate the Cholera Claims?
In the absence of a claims commission, the cholera claimants are in the intractable position whereby there is no forum to which their private law claims may be brought without the consent of the UN. This dilemma is a classic illustration of what has been referred to as the ‘accountability gap’77 in the law of IOs. It should be asked whether a domestic court would be willing to lift the UN’s jurisdictional immunity and allow the cholera case to come before a domestic court. An examination of this question may help to reveal the extent to which domestic courts are able to react and adapt to the permanent accountability structures which exist in international institutional law. It is contented that the capacity of a domestic court to react flexibly is a new and much-needed solution to the shifting demands that the human rights of victims be prioritised over the autonomy of IOs.
It is most commonly argued that domestic courts should refuse to uphold the jurisdictional immunity of IOs in circumstances where the organisation has failed to make an alternative dispute mechanism available to individuals with private law claims.78 In the UN context, such an argument rests on the proposition that the operation of Section 29 of the General Convention is a condition precedent to the UN’s enjoyment of jurisdictional immunity under Section 2 of the General Convention.
To date, domestic courts have always upheld the absolute character of the UN’s immunity, and have been unwilling to accept such a reading of the two relevant provisions in the General Convention. The ‘traditional approach’ to the relationship between the UN’s jurisdictional immunity and Section 29 of the General Convention was illustrated first in the Manderlier case before the Belgian Court of Appeal in 1969.79 In that instance, the Belgian Court found that the Convention establishes no link between the two provisions. In its advisory opinion in the Cumaraswamy case in 1999, the ICJ confirmed this traditional approach to the UN’s immunity.80 Undoubtedly, the UN’s absolute legal immunity before domestic courts still represents the black letter of the General Convention.
However, it must be noted that occasionally, European jurisprudence tends to be more sympathetic to the ‘human rights approach’ to the jurisdictional immunities of IOs. This view pays deference to an individual’s right of access to a court. The human rights approach typically entails a domestic court inquiring into whether an aggrieved individual can have their private law claims heard by an IO’s internal redress mechanisms. This represents a departure from the traditional approach to immunities, which focuses primarily on the relationship between the domestic court’s obligation, as an apparatus of the state, to uphold an IO’s immunity. That obligation is owed to IOs in international law, for instance, under the terms of the General Convention in the case of the UN. On the other hand, the human rights approach focuses more sharply on the relationship between the forum state and its human rights obligation to provide individuals with meaningful access to a court. That right entails that in the determination of his or her legal rights and obligations, everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.81 Therefore, the human rights approach recognises that by upholding the jurisdictional immunity of an IO, the forum state may be violating its obligations to individuals under international human rights law.
Within Europe, the human rights approach was first evoked in the seminal case of Waite and Kennedy before the European Court of Human Rights (ECtHR) in 1999.82 In that case, the ECtHR addressed the compatibility of the jurisdictional immunity granted to IOs with the plaintiffs’ right of access to a court.83 The ECtHR found that it was not a violation of the plaintiffs’ right under the European Convention on Human Rights (ECHR) for German courts to recognise the jurisdictional immunity of the European Space Agency. In determining whether this was a proportionate restriction on the right of access to a court, the Court reasoned that a ‘material factor’ to be taken into account was whether the applicants had available to them ‘reasonable alternative means to protect effectively their rights’ under the ECHR.84 Thus, a state might be in violation of its obligation to provide access to a court if it grants immunity in circumstances where the IO does not provide an alternative method of dispute settlement. It must be noted that while the Court found the existence of an alternative settlement mechanism to be a ‘material factor’ to be considered, the ECtHR’s judgment falls short of stating that such a mechanism would be an essential precondition to the granting of immunity.
Since the Waite and Kennedy decision, domestic courts in states bound by the ECHR are increasingly cognisant of the inherent conflict between the immunity of IOs and the human right of access to a court. There is growing recognition that if access to justice is not possible within an IO, domestic courts may be under an obligation to lift immunity in order to meet their human rights obligations vis–à–vis the claimant.85 Notably, in a small number of cases before domestic courts, jurisdictional immunity has been denied to IOs where the IO has failed to provide an alternative dispute mechanism.86 However, the different approaches taken by these national courts may be related to the applicable national legal order and the specific text of the applicable immunity provisions.87 Currently, no uniform approach has emerged from European domestic courts.
Domestic courts have never adopted the human rights approach to cases concerning the jurisdictional immunity of the UN. The traditional approach was recently affirmed with respect to the UN in the Mothers of Srebrenica case. When the Stichting Mothers of Srebrenica case came before the ECtHR in 2013, the Strasbourg Court confirmed that the Netherlands’ approach did not violate the claimants’ right of access to a court under the ECHR.88 The ECtHR found that to rule otherwise entailed the risk of allowing individual states to interfere with matters which are ‘fundamental to the mission of the United Nations to secure international peace and security’.89
Thus, both the Dutch Supreme Court and the ECtHR were aware that any domestic adjudication of the Mothers of Srebrenica claims would involve an evaluation of the UN Security Council’s Resolutions and its failure to use military force, and would therefore constitute domestic interference with the UN’s maintenance of international peace and security. The same policy rationale for judicial abstention in suits against the UN is not directly applicable in relation to the cholera claims. For instance, Rashkow highlights that the failure to use military force in the Srebrenica case is a ‘very different thing’ from the claims of negligence in the cholera case—alluding to the fact that the Srebrenica claims may constitute a public, rather than private, law dispute—as they involve questions about the UN’s failure to use military force to prevent genocide.
The cholera claims are of a different character to the Srebrenica claims. Undeniably, the genocide at Srebrenica constituted a failure of the UN to live up to the terms of the UN Protection Force mandate. This abject and unintended failure was strictly related to that mandate, and the Security Council’s performance in maintaining international peace and security.90 It is within that context that the Srebrenica claims arose. The damage caused by the cholera outbreak, on the other hand, did not arise as a consequence of the UN’s failure to fulfil its mandate. The cholera outbreak arose as an unintended consequence of the peacekeeping operation that lies, in a sense, entirely outside the UN’s mandate.91 Any judicial review of the cholera claims would not entail the same public law considerations that are inherent in the Srebrenica claims. This distinction between the claims fortifies Rashkow’s argument that cholera claims are more likely to constitute a ‘classically’ private law dispute than the Srebrenica claims.92
Notwithstanding the private law character of the cholera claims, the ‘special position’ of the UN still operates as a critical barrier to the legal accountability of the organisation before domestic courts. It was noted by the Dutch Court of Appeal in Mothers of Srebrenica that the UN has a ‘special position’ in the international community to maintain and restore international peace and security—a responsibility not shared by any other IO.93 The Court reasoned that the immunity granted to the UN is therefore ‘closely connected to the public interest pertaining to keeping peace and safety in the world.’94 Domestic courts have thus differentiated the UN from other IOs, claiming that though there are circumstances where immunity may not lie for a smaller IOs, the UN has unquestionable and absolute immunity.95 This ‘special position’ limits the extent to which one may hope that the Waite and Kennedy jurisprudence will influence future decisions regarding the UN’s jurisdictional immunity.
The present state of affairs suggests that the human rights approach to jurisdictional immunities is unlikely to be adopted in a domestic court outside of Europe, or in relation to the UN. Therefore, domestic courts are not well positioned to rectify the remedial deficit currently faced by the cholera claimants. This limits the extent to which it might be thought that domestic courts could respond pragmatically to the strict orthodoxy that defines the UN’s jurisdictional immunity. However, the burgeoning emphasis on the individual’s right of access to court does place increased pressure on the UN to make adequate provisions for the settlement of private law disputes.
7.5.2 Elevating the Cholera Claims to an International Level
The current remedial deficit facing the cholera claimants is attributable to the fact that accountability structures for the UN are still largely based on a ‘traditional state-centered understanding of international law and diplomacy’.96 These structures have not yet responded reactively to the increasing emphasis on an individual’s right to a remedy. In line with this approach, individuals cannot assert their rights vis–à–vis an IO without the intervention of their state. Typically, purely political accountability regimes for IOs were regarded as sufficient means to control organisations. The state-centered approach to the accountability of IOs allows member states to assert their interests through the organisation’s formal governance structures.97
As the UN’s current accountability regime is still predominantly governed by the traditional state-centered approach, the only remedial options, which appear to be available to the Haitian cholera claimants involve the elevation of the claims to an international level. Necessarily, this would require the intervention of the Haitian government. This could take a number of forms. As described above, the Haitian government does have the power, under the terms of the SOFA, to trigger the establishment of a claims commission. Haiti could also have recourse to Section 30 of the General Convention, which provides that if a difference arising out of the interpretation or application of the Convention occurs between the UN and a member state, a request shall be made for an advisory opinion from the ICJ which ‘shall be accepted as decisive by the parties’.
Additionally, Haiti could attempt to exercise diplomatic protection against the UN. This entails the right of a state to bring an action on behalf of its nationals whose rights and interests have been injured by another subject of international law.98 Under this procedure, the state espouses the victims’ claims, aggregates and submits them to the UN, and negotiates a lump-sum settlement on the injured parties’ behalf. However, there is very little evidence of the exercise of diplomatic protection in the context of UN peacekeeping operations. This is because the UN typically settles its private law disputes with injured third parties in accordance with the UN’s LCRB procedure. The negotiation of lump sums between a number of European states and the UN as compensation for damage caused by UN Operation in the Congo in the 1960s appears to be the only case made public.99
The exercise of diplomatic protection is of limited value in the cholera case, because it strictly entails the responsibility of the UN to states. As the Secretary-General has acknowledged, ‘the choice of a lump-sum settlement as a mode of handling third-party claims is largely dependent on the state’s willingness to espouse the claims of its nationals.’100 The international responsibility of the UN is therefore meaningless to individuals who are seeking redress for injury against the UN without the support of their state. States have ultimate discretion as to whether they espouse a diplomatic claim.101 In the present case, the Haitian government does not appear to have the institutional strength to do so. International diplomatic power is ‘not a characteristic typical of states hosting peacekeepers’.102 It is not surprising, therefore, that commentators have noted that individuals with claims against IOs are ‘likely to prefer remedies which they are entitled to pursue in their own name’.103 It appears that elevating the cholera claims to an international plane does not give rise to any practically available remedial mechanisms for the claimants.
The traditional state-centered approach to the accountability of the UN is unsatisfactory. It presupposes that states have the capacity to intervene on behalf of individuals harmed by the UN’s activities. This has two unacceptable consequences. Firstly, if the UN refuses to settle private law claims and the member state of the affected parties does not attempt to implement accountability measures against the UN, then the individuals are left entirely without redress for the wrongful actions of the organisation. Secondly, the current regime is inconsistent with the rule of law, which requires that when public powers contravene their legal obligations, whether international or national, they are accountable on the basis of the law.104 In domestic legal orders, the exercise of governmental powers is subject to adjudication by independent courts. As the UN is not amenable to the jurisdiction of any domestic or international court, there is no commensurable way of ensuring that the UN is accountable on the basis of the law.