On October 9, 2013, a group of Haitian cholera victims and their survivors sued the United Nations, along with two UN officials and the United Nations Stabilization Mission in Haiti (MINUSTAH), in the U.S. District Court for the Southern District of New York.Footnote 1 The plaintiffs alleged that the United Nations had negligently and recklessly allowed peacekeepers from Nepal carrying cholera to enter Haiti in the wake of the 2010 earthquake without reasonable health screenings.Footnote 2 The suit further alleged that the United Nations had negligently maintained inadequate sanitation facilities.Footnote 3 Finally, the petitioners alleged that the United Nations’ refusal to accept responsibility for the outbreak had exacerbated the epidemic.Footnote 4 According to the United Nations, by August 2016, nearly 800,000 people had become infected with cholera, and more than 9,000 had died of cholera.Footnote 5
The United States submitted a statement of interest to the district court, arguing that the United Nations and all other defendants were immune from suit under the 1946 Convention on the Privileges and Immunities of the United Nations (CPIUN).Footnote 6 Of note, the CPIUN requires the United Nations to “make provisions for appropriate modes of settlement” of certain categories of disputes.Footnote 7 Pursuant to that provision, the plaintiffs had previously filed a petition for compensation with the secretary-general. The United Nations denied the petition on the grounds that the claims were “not receivable” under the CPIUN because “consideration of these claims would necessarily include a review of political and policy matters.”Footnote 8
On January 9, 2015, the District Court dismissed the plaintiff's claims for lack of subject matter jurisdiction:
The Charter of the United Nations (“UN Charter”) states 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 purposes.” The CPIUN, which was adopted less than a year after the UN Charter, defines the UN's privileges and immunities in more detail. The CPIUN provides that “[t]he 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.” Because the CPIUN is self-executing, this Court must enforce it despite the lack of implementing legislation from Congress.
The Second Circuit's decision in Brzak v. United Nations requires that Plaintiffs’ suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that “[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’” Here, no party contends that the UN has expressly waived its immunity. Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs’ suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit.Footnote 9
The District Court also ruled that the immunity of the United Nations was not contingent on the availability of an alternative means of dispute resolution.Footnote 10 Finally, the court held that the United Nations officials named in the suit were also immune.Footnote 11
The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit.Footnote 12 While the decision from the three-judge panel was pending, 158 members of Congress signed a bipartisan letter from Michigan representative John Conyers Jr. expressing frustration with the United Nations’ lack of accountability:Footnote 13
We write to urge the State Department to immediately and unreservedly exercise its leadership to ensure that the United Nations (UN) take concrete steps to eliminate the cholera epidemic introduced to Haiti in 2010 by waste from a UN peacekeeper camp, and to comply with its legal and moral obligations to provide cholera victims with access to an effective remedy.
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While the deaths, illness, and evidence of malfeasance mounted, UN Assistant Secretary-General Pedro Medrano Rojas, who met with Congress as the UN's point person for responding to the epidemic, left office in June 2015 and was not replaced. The UN continues to refuse to even discuss providing compensation for the losses incurred by those killed and sickened by the cholera it brought to Haiti, and there is no notable progress in its proclaimed efforts to provide the water and sanitation infrastructure necessary to control the cholera epidemic.
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While we do not wish to take a position in the litigation, we are deeply concerned that the State Department's failure to take more leadership in the diplomatic realm might be perceived by our constituents and the world as a limited commitment to an accountable and credible UN.Footnote 14
In response to this letter, a State Department spokesperson praised Representative Conyers's leadership and emphasized the United States’ commitment to assisting Haiti in combating the cholera outbreak, highlighting the $95 million the United States had already spent for treatment and prevention.Footnote 15
Additionally, before the Second Circuit ruled, a report criticizing the United Nations’ response to the cholera outbreak by the United Nations special rapporteur on extreme poverty and human rights, Philip Alston, was leaked to the press. An excerpt follows:Footnote 16
The scientific evidence now points overwhelmingly to the responsibility of the peacekeeping mission as the source of the outbreak. 9,145 persons have so far died and almost 780,000 have been infected. To date, the United Nations has denied responsibility for the outbreak, rejected all claims for compensation, refused to establish any procedure to resolve the resulting disputes, and has relied on a claim of absolute immunity in defending litigation brought by victims. This policy of abdicating responsibility relies on a claim of scientific uncertainty that is no longer sustainable and an unpublished legal opinion that the resulting claims are not “of a private law nature” and are thus not receivable. Based on what is known of the legal analysis, it is deeply flawed.
The UN's policy is morally unconscionable, legally indefensible, and politically self-defeating. It is also entirely unnecessary. In practice, it jeopardizes the UN's immunity by encouraging arguments calling for it to be reconsidered by national courts; it upholds a double standard according to which the UN insists that Member States respect human rights, while rejecting any such responsibility for itself; it leaves the UN vulnerable to eventual claims for damages and compensation in this and subsequent cases which are highly unlikely to be settled on terms that are manageable from the UN's perspective; it provides highly combustible fuel for those who claim that UN peace-keeping operations trample on the rights of those being protected; and it undermines both the UN's credibility and the integrity of the Office of the Secretary-General.Footnote 17
Shortly after the report was sent to UN Secretary-General Ban Ki-moon, a deputy spokesperson for the secretary-general indicated that the United Nations planned to change its approach to the cholera outbreak in Haiti while maintaining its immunity from the lawsuit filed in New York.Footnote 18 According to an email written by the spokesperson, “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.”Footnote 19 The spokesperson also indicated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”Footnote 20
The following day, the Second Circuit upheld the district court's ruling.Footnote 21 The Second Circuit rejected the plaintiffs’ argument that the United Nations’ immunity was contingent on its provision of an alternative dispute settlement mechanism:
Here, application of two particular “principles which govern the interpretation of contracts” demonstrates why plaintiffs’ first argument is unavailing. The first such principle is expressio unius est exclusio alterius—“express mention of one thing excludes all others”—which is also known as the negative-implication canon. This principle has guided federal courts’ interpretations of treaties for over a century.
As noted above, Section 2 of the CPIUN provides that the UN “shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” Especially when coupled with the compulsory “shall”—which “is universally understood to indicate an imperative or mandate”—Section 2's “express mention of” the UN's express waiver as a circumstance in which the UN “shall [not] enjoy immunity” negatively implies that “all other[]” circumstances, including the UN's failure to fulfill its Section 29 obligation, are “exclude[d].” It necessarily follows that the UN's fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity.
This conclusion is buttressed by the second principle of contract interpretation relevant to our analysis—that “conditions precedent to most contractual obligations … are not favored and must be expressed in plain, unambiguous language.” To manifest their intent to create a condition precedent, “[p]arties often use language such as ‘if,’ ‘on condition that,’ ‘provided that,’ ‘in the event that,’ and ‘subject to.’” No such language links Sections 2 and 29 in the CPIUN. Of course, “specific talismanic words are not required.” But “there is [also] no … [other] language [in the CPIUN] which, even straining, we could read as imposing” the UN's fulfillment of its Section 29 obligation as a condition precedent to its Section 2 immunity.Footnote 22
The court then dismissed the material breach argument in light of its conclusion that the plaintiffs lacked standing to make that claim:
Plaintiffs next argue that “[t]he District Court's finding of immunity was erroneous … because Section 29 is a material term to the CPIUN as a whole.” According to plaintiffs, the UN's material breach of its Section 29 obligation means that it “is no longer entitled to the performance of duties owed to it under” the CPIUN, including its Section 2 immunity. We need not reach the merits of this argument, however, because plaintiffs lack standing to raise it.
As we have recently reiterated, “absent protest or objection by the offended sovereign, [an individual] has no standing to raise the violation of international law as an issue.” The plaintiffs have not identified any sovereign that has objected to the UN's alleged material breach. To the contrary, the United States has asked us to affirm the District Court's judgment, and no other country has expressed an interest in this litigation.Footnote 23
Finally, the Court found that the plaintiffs’ arguments for right of access “[failed] to convince”:Footnote 24
As we stated in Brzak v. United Nations, in which we rejected a virtually indistinguishable challenge to an application of Section 2 of the CPIUN, plaintiffs’ argument does little more “than question why immunities in general should exist.” But “legislatively and judicially crafted immunities of one sort or another have existed since well before the framing of the Constitution, have been extended and modified over time, and are firmly embedded in American law.” Plaintiffs’ argument, if correct, would seem to defeat not only the UN's immunity, but also “judicial immunity, prosecutorial immunity, and legislative immunity.” Plaintiffs do not persuasively differentiate the quotidian and constitutionally permissible application of these doctrines from application of Section 2 of the CPIUN here.Footnote 25
On August 19, 2016, the Office of the United Nations Secretary-General issued a statement in response to the Second Circuit's ruling:
The Secretary-General deeply regrets the terrible suffering the people of Haiti have endured as a result of the cholera epidemic. The United Nations has a moral responsibility to the victims of the cholera epidemic and for supporting Haiti in overcoming the epidemic and building sound water, sanitation and health systems.
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The Secretary-General is actively working to develop a package that would provide material assistance and support to those Haitians most directly affected by cholera. These efforts must include, as a central focus, the victims of the disease and their families. The United Nations also intends to intensify its support to reduce, and ultimately end, the transmission of cholera, improve access to care and treatment and address the longer-term issues of water, sanitation and health systems in Haiti.Footnote 26
In the months following the Second Circuit decision, the United Nations has provided some further information about its planned compensation plan.Footnote 27 The plan has two tracks: the first track aims to combat the cholera epidemic itself (by, for example, addressing the water infrastructure still needing repair from the 2010 earthquake);Footnote 28 “the second track aims to develop a framework proposal to Member States for material assistance to those Haitians most affected by cholera after the 2010 outbreak.”Footnote 29
Apart from its filings in the lawsuit against the United States, the Obama administration had been largely silent about the United Nations’ response to cholera in Haiti.Footnote 30 Nevertheless, in a statement before a committee of the UN General Assembly, Alston suggested that the United States had played an influential role in shaping the United Nations’ legal position:
[I]t seems relevant to note that the United States of America, which has a strong interest in this issue both as a close neighbor of Haiti and as the principal contributor to the UN's peacekeeping budget, has itself never publicly stated its legal position on this issue, despite many requests that it do so. There is reason to believe that the position adopted by [the UN Office of Legal Affairs] in 2013 was consistent with views strongly pressed at the time by the United States. The reasoning behind the US position seems to be that the UN must follow American legal practice which generally takes the view that legal responsibility should never be accepted when it can possibly be avoided, because one never knows the consequences for subsequent litigation.Footnote 31
At a press conference two days later, State Department Spokesperson John Kirby was asked about the United States’ role in shaping the United Nations’ legal position:
QUESTION: … [E]arlier this week, there was a UN expert speaking up at the UN in New York about Haiti and the cholera epidemic. And in his comments, he … hinted … that the reason the UN took the position that it took when people tried to get some accountability for the introduction of cholera into Haiti was at the behest of the United States. Can you address that? Is that correct? Did you pressure or push the UN into not responding?
MR KIRBY: No, we did not. We have been very clear that we do not take a position on the validity of the underlying claims in this particular case. We do not take a position.
QUESTION: But you did take a position in favor of the United Nations, correct?
MR KIRBY: What we've said is we support efforts by the special rapporteur to give greater prominence to the plight of those living in extreme poverty. We have said before that we welcomed the secretary-general's acceptance of the UN's moral responsibility for the cholera outbreak and his recent statement expressing regret for the loss of life. We've also said that we recognize more must be done and we support the UN's ongoing efforts to design an assistance package to assist those most affected by cholera including in the wake of Hurricane Matthew. So we look forward to receiving the secretary-general's proposal for the provision of a package of assistance and support to Haitians most affected by the cholera.
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QUESTION: … I think Matt's fundamental question was: Did the U.S. Government at any time discourage the UN from taking responsibility, right? Was that fundamentally your question?
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MR KIRBY: I'm not aware that we discouraged them from taking responsibility. I said … we welcomed that—
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MR KIRBY: —the secretary-general said it was a moral responsibility.Footnote 32 But with respect to the actual claims, we did not take a position on the validity of the underlying claims in this case.
QUESTION: … [C]ouldn't you discourage them from taking responsibility even if you don't take a position on the underlying claims? Look, you could say, “Look, I don't know who did this, but it's going to be bad if you take responsibility, so don't do that.”
MR KIRBY: Well, I mean, could we have? I don't know. I suppose we could have. I'm not aware that we did. What I can tell you is we did not take a position on the underlying claims and we did welcome the secretary-general's actions and his comments on this matter going forward.Footnote 33
On December 1, Secretary-General Ban Ki-moon spoke about the United Nations’ new approach to cholera in Haiti:
The United Nations deeply regrets the loss of life and suffering caused by the cholera outbreak in Haiti. On behalf of the United Nations, I want to say very clearly: we apologise to the Haitian people. We simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role.
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Our new approach to Haiti and cholera is founded on and follows two tracks. The assistance requested amounts to around $400 million over two years divided between Track One and Track Two.
Track One consists of a substantially intensified effort to respond to, and reduce, the incidence of cholera in Haiti. Haitians clearly have told us that eliminating cholera must be priority number one. We would like to see improvements in people's access to care and treatment when sick, while also addressing the longer-term issues of water, sanitation and health systems.
Work on Track One is [well] under way. …
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… [O]ur new approach includes a second track—Track 2—that focuses specifically on those Haitians most directly affected by cholera, their families and communities. … Track Two is a concrete expression of the regret of our Organization for the suffering so many Haitians have endured. On that basis, we propose to take a community approach that would provide a package of material assistance and support to those most severely impacted by cholera. The support would be based on priorities established in consultation with communities, victims and their families.
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This support could take many forms, including projects to alleviate the impacts of cholera and strengthen capacity to address the conditions that increase cholera risk. It could also include projects reflecting community needs not directly related to cholera, such as education grants, microfinance or other initiatives.
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Some have urged that the package also include an individual component, such as the payment of money to the families of those who died of cholera. This approach would require identification of the deceased individuals and their family members. It would also require the certainty of sufficient funding to provide a meaningful fixed amount per cholera death.
We need to do further on-the-ground consultations, while acknowledging the difficulties involved. Additional evaluation is needed on whether and how the limitations of information on deaths from cholera, including the identities of the victims, can be addressed and on the challenges and costs associated with that effort.Footnote 34
Ban emphasized the need for adequate funding, and encouraged member states to contribute voluntary funds to the newly established United Nations Haiti Cholera Response Multi-Partner Trust Fund.Footnote 35
Ambassador Isobel Coleman, the U.S. Representative to the United Nations for UN Management and Reform, delivered informal remarks in response. An excerpt follows:
As the Secretary-General has movingly noted, cholera has had a devastating effect on the Haitian people since it was introduced in Haiti in 2010. Families have lost loved ones, caregivers, and breadwinners. No community has been untouched. There is a clear humanitarian imperative to respond to the epidemic in a robust and sustained manner.
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There is also a clear ethical duty to respond to the cholera epidemic in Haiti. Not a single one of these cases should have occurred. For this reason, the United States welcomes the Secretary-General's acceptance of the UN's moral responsibility for the cholera outbreak and his statement last month in Haiti expressing regret for the resulting loss of life. While the UN and the international community have made strides in containing and preventing the further spread of the disease, the U.S. recognizes that more must be done and supports the UN's ongoing efforts to design an assistance package for those most affected by cholera.
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We welcome the Secretary-General's apology today and the proposed new approach as meaningful symbols of atonement to the Haitian people, and important steps in restoring the credibility of the United Nations. And we look forward to working with the Secretary-General and his successor to ensure that this initiative has a positive and lasting impact for those most affected.Footnote 36
