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International law scholars
and practitioners from Europe and North America,
many with United Nations (UN) connections, filed
two amicus curiae briefs on May 15 in support of
a federal class action lawsuit against the UN
for bringing cholera to Haiti. The briefs
demonstrate a consensus among scholars that the
UN has an obligation to provide the cholera
victims a hearing for their claims, and that its
refusal to do so imperils the organization’s
immunity.
The amicus
briefs buttress another brief filed May 15 by
the cholera victims. It explains why immunity
cannot shield the UN from having to respond to
the victims’ suit. All three briefs respond to a
March 2014 filing by the U.S. Government urging
dismissal of the case on the grounds that the UN
is immune from suit.
In one amicus
brief, well-known international law scholars
note that several international treaties, as
well as the UN’s own General Assembly
resolutions, legal opinions, and practices
establish an obligation for the organization to
compensate people harmed by UN operations – an
obligation which has not been fulfilled in the
cholera case.
One of the
signers of this brief, José Alvarez, professor
of international law at New York University
School of Law, noted that “the UN has committed
itself at the highest levels to the promotion
and fulfillment of the rule of law, but
apparently sees no contradiction in promoting
accountability — including legal accountability
— in others while refusing to address how the
national or international law applies to itself
in this case."
European legal
experts point out in the second amicus brief
that courts outside of the United States balance
an international organization’s immunity
protection with victims’ right of access to
court. They describe how those courts have
required that in return for immunity in court,
international organizations must provide harmed
individuals with a reasonable alternative
procedure.
Manfred Nowak,
Professor of International Law and Human Rights
at Vienna and Stanford University and former UN
Special Rapporteur on Torture, added that “the
UN needs to understand that immunity cannot mean
impunity. If it refuses to provide people
alleging harm with a path to justice, courts
will refuse to uphold its immunity.”
The amicus
briefs underscore the growing international
consensus that the UN cannot be absolutely
immune for its actions in Haiti. The
international law authorities signing the briefs
include current and former UN mandate holders
such as Nico Schrijver and Krister Thelin. Last
month, the New York City Bar Association sent a
letter to the State Department expressing its
concern that the U.S. Government should not
support the UN’s violations of the law.
The plaintiffs’
brief is the first opportunity that the cholera
victims have had to tell the court why UN
immunity does not apply in this case, which was
filed in October 2013. The plaintiffs argue that
the UN’s promises to provide an out-of-court
procedure for the settlement of claims against
it are a fundamental part of the treaties that
grant it immunity, and that the organization
cannot invoke its immunity under those treaties
when it has failed to fulfill those promises.
Cholera
continues to affect Haiti’s vulnerable
population. The UN itself has warned that the
disease may kill up to 2,000 more people in
2014. To date, the epidemic has killed more than
8,500 and sickened more than 700,000. |
