Mégret: La Responsabilite Des Nations Unies Aux Temps Du Cholera

Frédéric Mégret (McGill Univ. - Law) has posted La Responsabilite Des Nations Unies Aux Temps Du Cholera (United Nations Responsibility in the Time of Cholera). Here's the abstract:

This draft paper currently under submission aims to explore the issue of the UN's responsibility for the cholera epidemic in Haiti with a view to examining some of the current limits of the accountability of peace operations. For the benefits of readers not reading French and given the topical nature of the debate, what follows is a fairly extensive abstract.

For the sake of argument, it presumes the facts to have been prima facie established, namely that a Nepalese contingent based in Haiti as part of MINUSTAH introduced a strain of cholera that provoked upwards of 7,000 deaths. The article takes as its starting point the claim presented by the Institute for Justice and Democracy in Haiti (IJDH) and the Bureau international des avocats to the MUNUSTAH local review board and UN Headquarters, as well as the terse negative response offered by the Secretary General on the basis that a consideration of that claim would involve “political and policy issues.”

The paper first examines the UN’s obligation to provide “appropriate remedies” as per the Convention on UN immunities as a quid pro quo for such immunities, one reinforced by the specific practice of peace operations. The UN Legal Affairs’ main argument seems to be that the dispute is not one of “private law,” the only kind for which the UN has committed to provide such remedies. The irony is that, largely as a result of the internal, confidential and unilateral character of the review boards’ procedure, the UN has never in its history provided an articulated conception of what constitutes a dispute of private law. Nonetheless, the paper suggests that this can be reconstructed thanks to a mix of SG reports on the third party claims procedure and a general theoretical and comparative understanding of the public/private distinction. The paper does caution that there is every reason to think that the distinction is itself problematic and can easily be reshuffled to make the point one wants to make. It finds that the UN’s own practice has been to acknowledge private law responsibility even when it is involved (contra some continental European law systems that make the state’s responsibility towards private third parties ipso facto a question of public law). Private law disputes are those over which local tribunals would have competence were it not for the operation of immunities. This clearly applies to the current case given that the harm occurred on Haitian territory and affected Haitian victims. Moreover, the SG has clarified that claims of a private nature primarily include “claims for compensation submitted by third parties for personal injury or death and/or property loss or damage incurred as a result of acts committed by members of a United Nations peace-keeping operation within the “mission area” concerned.” Although the decision not to screen Nepalese soldiers for cholera may have been taken outside Haiti, the paper finds that fact to be irrelevant given the fact that the harm predominantly occurred in Haiti itself. The other significant area of private liability of UN peace operations is the “non-consensual use and occupancy of premises.” It is striking that this issue raises many sensitive political and policy questions (for example, why is the host state not in a position to provide the premises which it is committed to provide), yet this has never been an obstacle to compensation. The idea that what is otherwise a private law dispute becomes a matter of public law merely because it raises political or policy issues is rejected as too broad and contradictory with UN practice (even car accidents involving peacekeepers, for which the UN clearly recognizes that compensation is due, involve some policy decisions up the road).

The paper points to the existence of disputes having a clearly identifiable public law to show a contrario how the Haitian claim is different. For example, any dispute involving public international law issues, such as one on the SOFA between Haiti and the UN, would be a matter of “public law.” Even if individuals in Haiti have an issue with the SOFA or the way it is being implemented, only Haiti is a party to that agreement and can invoke its benefit bilaterally with the UN. Some difficult issues do arise when the standard of care by which an international organization is held to be privately liable is based not on some general tortious obligation but closely indexed to the organization’s mandate. It is this sort of examination that the UN’s exclusion of responsibility in cases of “operational necessity” seeks to avoid. Yet the UN has not nor is likely to allege that not screening the Nepalese soldiers for cholera was an urgent matter leaving no alternative, the conditions that it has itself laid out for operational necessity.

The situation might be different if the core of MINUSTAH’s mission had been to fight cholera and the claim sought to impugn some of its sanitary decisions in discharging that mandate. There is evidence that “failures to discharge one’s mandate” are typically what the UN has considered to be matters of “public law”, as evidenced by its refusal to set up a permanent claims commission to examine the consequences of its failure to avert the genocide there as required by Rwanda. In the Haitian case, the failure to screen relates not to the goal of the mission or the core of its implementation but to matters several steps removed and incidental to it. It is worth noting that there are cases within the UN family of a possibility of “public law” review of certain acts (the World Bank Inspection panel, the Security Council ombudsperson, and various accountability mechanisms within international territorial administrations), that such mechanisms are clearly not what the Haiti-UN SOFA had in mind, but that nor is this sort of public accountability what the claimants in Haiti are seeking given the private nature of harm suffered.

The paper then examines the intriguing question of what the impact of the IJDH/BIA’s argument that the UN, in addition to committing a tort, violated the human rights of the claimants is for the characterization of the dispute. Assuming that idea to be plausible, there is at least an argument that it might be at counter-purpose with the claimants’ goal in that, in invoking human rights, it frames the case as a public law one. The responsibility to respect/protect human rights is clearly one of either public international law or, in domestic law, an administrative or constitutional matter. Yet there is also much in common between the two and the paper argues that invoking human rights does not defeat the IJDH/BIA case in terms of the “private law” receivability of the claim. US practice under ATCA, in particular, shows that it has long been possible to recharacterize human rights violations as private law violations; there is no reason to believe that the reverse cannot be done, without losing a private law violation that character. Interestingly, the practice of UNMIK’s Human Rights Advisory Board has been that claims formulated as human rights claims that could also be dealt with under the UN’s third party liability claims procedure (e.g.: because they involve death/injury or damage to property) should not be receivable before it, a practice that suggests that the UN itself is comfortable with the private/public translatability of such claims.

The paper then turns to an examination of the immunity issues that may be raised if the case is in the future brought before a domestic court, and which in any case impact our assessment of the significance of the duty to provide alternative remedies. The paper makes the argument that the normative basis for immunities of peace operations is probably not as strong as it once was. International organizations’ immunities have always served a less ontological role than states’. They are functional which means that they are conceded for the purposes of international organizations fulfilling their missions, even though in practice this means they have been considered close to absolute. Several factors in the present context should give pause for thought. First, IO immunities were primarily conceived to fend-off state interference, and one might therefore be inclined to think that it should make a difference if it is only individuals that are bringing claims, in a context where the state (here, Haiti) is conspicuously silent. Second, there is reason to believe that this silence of the state is not accidental but symptomatic of increasing UN intervention in situations where the state is weak or absent, and where the essence of what is going on is a direct face-to-face between the UN and local populations. Third, the idea that private parties’ invocation of their rights might negatively affect the UN’s functional capacity to discharge its mission merits close examination in a context where the UN is standing in for the state and/or helping reconstruct a system of governance based on accountability, the rule of law, and human rights. One might on the contrary think that it is failing to make itself accountable that might impede the organization’s ability to reach its goals.

Nonetheless, the paper finds that the weakening of the normative basis of immunities is not sufficient ground to consider that, in positive law, these immunities are no longer applicable. There is some confusion in the literature between the substantive argument for accountability, and the procedural and quite distinct issue of immunities. It bears mentioning that even if cases are brought by individuals in good faith, the exercise of jurisdiction by domestic courts still involves an exercise of sovereign imperium. The risk of undue interference by either individuals or the state is hard to exclude entirely, which plays into the ultimately prudential and pragmatic basis for immunities. In that respect the sometimes-heard argument that it is not in the UN’s “functions” to violate human rights and that it therefore cannot invoke its functional immunity when it comes to such cases is dismissed as based on a misplaced analogy with the functional immunities of former heads of state (see Pinochet). Human rights violations committed by the UN are certainly ultra vires, but they do not cease thereby to be official acts to which immunities apply, or one should be willing to entertain the frankly esoteric and counter-productive possibility that the UN violates human rights “in its spare time.” To claim otherwise would undo the international law of immunities as it applies to international organizations entirely. Rather than reducing the ratione materiae scope of immunities through an interpretation of what is “functional,” an alternative is to invoke the jus cogens character of human rights and to argue that this should trump immunities. Although this is an argument that has the favors of many among scholars of international law, it is also one that has spectacularly failed, even before international human rights courts, in relation to sovereign immunity, and there is no obvious reason to think that it would or even should fare differently in the case of international organizations.

There remains the possibility that immunities could be circumvented thanks to human rights but “through the back door” of the human right to an effective remedy. There is some case law on the idea that immunities can be bypassed when an international organization does not provide the alternative remedy that it is duty bound to provide, based on the idea that to do otherwise would violate the right of claimants to have their cause heard. The paper takes this possibility seriously, although it may ultimately help less in bypassing the UN’s immunity than in further reinforcing the case for providing an alternative remedy.

The paper concludes with a few thoughts on the way ahead and what might be an appropriate resolution to the conflict. The setting up of a standing claims commission, as anticipated by the SOFA, would at least be an improvement on a purely administrative and discretionary process. The idea of a “global settlement” as pioneered following the Congo operation in 1965 is an interesting precedent that seems suited to the mass character of the current Haitian claim and has in the past been endorsed by the Secretary General. Some sort of negotiation, conciliation, mediation or arbitration between Haiti and the UN might also be appropriate, although it would have to rely crucially on Haiti being willing to invoke its diplomatic protection, something that it has been urged to do domestically but has so far failed to show much interest in.

Beyond the particulars of the Haiti situation, one may wonder whether more original measures might not be warranted in the future, such as the creation of a systemic UN ombudsperson to deal with such difficult cases. What is needed, aside from the somewhat tiresome debate on what counts as a “private” or “public” law dispute, is a recognition by the UN that it should, at any rate, be accountable under public law for its acts, not only to other states and international organizations as currently discussed by the ILC, but to private “stakeholders” more generally. In a context where the UN’s responsibilities in post-conflict settings have been changing radically for at least a decade and where what it engages in is increasingly akin to forms of cosmopolitan governance, to systematically invoke the benefit of the “old rules” of immunity so characteristic of the 20th Century international legal order may betray a striking lack of candor.