Two days ago, victims of a cholera outbreak in Haiti filed a class action in the Southern District of New York against the United Nations, the UN Secretary-General, and the former head of the UN Stabilization Mission in Haiti (“MINUSTAH”). The complaint alleges that the defendants were negligent in deploying cholera-stricken Nepalese troops to Haiti and in constructing and maintaining their sanitation facilities. Additional claims include gross negligence, wrongful death, negligent supervision, negligent and intentional infliction of emotional distress, private and public nuisance, and breach of contract. The lawsuit is compelling in many respects, but I think the court will dismiss the complaint on the basis of the defendants’ immunity. In this post, I’ll explain why.
First some background: In 2004, the Security Council passed a resolution creating MINUSTAH for the purpose of enhancing security and promoting democracy and the rule of law in Haiti. In implementing that resolution, dozens of countries have deployed military and police forces to Haiti over the last decade. One of those countries, however, was Nepal, where cholera is apparently endemic. In 2011, within a couple of months after the arrival of approximately 1000 Nepalese troops, Haitians living downstream from the troops contracted cholera, and from there the number of cases shot up dramatically. The latest CDC figures are that the disease has infected over 650,000 Haitians, 8300 of whom have died. This is tragic. What’s worse is that, even in the face of pretty clear evidence of the source, the UN has refused even to acknowledge its role, much less offer compensation.
While it’s impossible not to sympathize with the plaintiffs, it’s hard to see how their lawsuit can succeed. For the UN, immunity seems fairly clear because the United States is a party to the Convention on the Privileges and Immunities of the United Nations, which establishes that the “United Nations, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” To date, the UN has not waived its immunity, and as far as I can tell no federal court has ever allowed a lawsuit against the UN to proceed where the UN has invoked the Convention.
The plaintiffs might attempt to overcome this problem in a couple of ways. One is by relying on the International Organization Immunities Act (“IOIA”), which states in part that “[i]nternational organizations . . . shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The argument here would be that the IOIA confers on the UN only a limited form of immunity because the statute’s reference to the immunities of foreign governments points to the Foreign Sovereign Immunities Act (“FSIA”), which permits lawsuits against states on certain types of commercial and tort claims. But I think this argument will fail. The D.C. Circuit rejected it several years ago on the view that the IOIA refers to the absolute form of sovereign immunity that predominated in the United States at the time of the statute’s enactment in 1945, rather than the restricted immunity codified decades later in the FSIA, and the Second Circuit has implied that it might adopt the same interpretation. Additionally, the Second Circuit held just a few years ago that the absolute immunity embodied in the Convention applies in place of the IOIA because it is more specific—the Convention expressly concerns the United Nations, while the IOIA refers generically to “international organizations.” One intriguing implication here is that, at least in some U.S. courts, international organizations enjoy a more robust form of immunity than do sovereign states.
A second possibility for the plaintiffs is to argue that the UN lost its immunity by breaching the treaty that is the immunity’s source. Section 29 of the Convention says that the UN “shall make provisions for appropriate modes of settlement of (a) [d]isputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; [and] (b) [d]isputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.” Relying on this language, the plaintiffs might contend that the UN violated the Convention by failing to offer any mode of dispute settlement. Although the Convention does not say that the UN can lose immunity by failing to honor its obligations, other international law holds that a material breach of a multilateral treaty by one of the parties entitles “a party specifically affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State,” and entitles “any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.” This law refers to a breaching “state” rather than an international organization, but it is understood also to apply “to any treaty adopted within an international organization.” The upshot is that, assuming a breach, the UN might temporarily lose its immunity if a state decides to suspend the Convention, given that the Convention is the immunity’s source. The problem, however, is that only states can suspend, and the United States almost certainly will not. For one, I’ve never heard of the United States doing that in circumstances like this. Additionally, I don’t think international law authorizes Washington to suspend in this case, given that the United States was not “specifically affected” by the breach, and given that the breach doesn’t appear to “radically change” the position of every party with respect to further performance.
That leaves the claims against the UN Secretary-General and the former head of MINUSTAH. Here, the Vienna Convention on Diplomatic Relations and Convention on the Privileges and Immunities of the United Nations both apply and provide, in essence, that UN officials are immune from civil lawsuits for any acts performed by them in their official capacity, unless the Secretary-General or Security Council provides a waiver. Scanning the plaintiffs’ complaint, I didn’t notice any allegations of tortious acts carried out other than in an official capacity. Moreover, Ban Ki-moon is unlikely to waive the immunity of the former head of MINUSTAH, and the Security Council has shown no sign of a plan to waive the Secretary-General’s immunity. So it’s likely that these claims, too, will fail.
Of course, it’s possible that the plaintiffs filed their complaint simply in the hope of putting more public pressure on the UN to provide redress, rather than because they think they will prevail on the merits. In that regard, they may very well succeed. It’ll be interesting to see how the UN responds.