2. Cholera in Haiti: A background

The cholera epidemic started in the Artibonite region in October 2010, with the first case of severe diarrhoea on 12 October and the first hospitalisation on 17 October. Prior to that, there had been no recorded cases of cholera in Haiti for over a century.Footnote ⁵ The population was therefore immunologically naive and highly susceptible to infection.Footnote ⁶ Between October and December 2010, approximately 150,000 people had contracted cholera and 3,500 had died; by the end of 2013, more than 8,000 people had died and over 670,000 individuals had been infected, making it one of the most deadly cholera outbreaks in recent history.Footnote ⁷ It was described by local journalists as the ‘Haitian 9–11’.Footnote ⁸ Rumours spread that the Nepalese battalion based in Mirebalais in the Artibonite region was responsible for introducing cholera to Haiti. Associate Press journalists witnessed septic tanks overflowing and the smell of excrement at the Nepalese base on 27 October. A dark liquid apparently flowed out of a broken pipe towards Meille River,Footnote ⁹ a tributary to the Artibonite River, which is the nation's largest and most important river providing water to 1.5 million people. Other rumours mentioned the possible illegal dumping of waste-tank contents next to the river.Footnote ¹⁰ The Nepalese camp was identified by local inhabitants as the most likely source of the disease, and it is important to note that Nepal suffered cholera outbreaks only weeks before the troops' deployment.Footnote ¹¹ Within weeks of the first cases, there were reports of crowds throwing stones at UN armoured personnel carriers and of repeated clashes between Haitians and the UN peacekeepers, many ending in deaths.Footnote ¹²

A new Nepalese battalion arrived in Haiti in October 2010 and was deployed to the Mirebalais camp in three waves (9 October 2010, 12 October 2010, and 16 October 2010).Footnote ¹³ There is still confusion about whether or not the soldiers were tested prior to their deployment, with conflicting reports from different official sources. General Kishore Rana, the Nepalese Army's chief medical officer, stated that ‘none of the troops exhibited symptoms of cholera – so no follow-up tests were done’.Footnote ¹⁴ That statement was contradicted by the Under-Secretary-General for Peacekeeping Operations, Alain Le Roy, who insisted that all soldiers tested negative for that particular strain.Footnote ¹⁵ What is clear is that the cholera screening protocols were inadequate to prevent the Haitian epidemic.Footnote ¹⁶ UN protocol requires that troops pass a basic health screening. Symptomatic individuals undergo laboratory tests for infectious diseases but individuals who do not exhibit active symptoms are not tested. However, many of those shedding viable cholera bacteria remain asymptomatic. Furthermore, the South Asian strain of cholera active in Haiti has been shown to cause a greater number of asymptomatic cases, to persist longer in the environment, and to exist in higher concentrations in faeces.Footnote ¹⁷ The problem was not just the lack of appropriate testing: The Medical Support Manual for United Nations Peacekeeping Operations does not list cholera and diarrhoea as conditions precluding peacekeeping service, and examination only has to take place within three months of deployment, leaving plenty of time for soldiers to contract the disease.Footnote ¹⁸

A team of researchers from the University of Maryland led by the renowned microbiologist, Rita Colwell, deemed Haiti's inadequate sewage and sanitation systems (exacerbated by the 2010 earthquake) alongside the deficiencies in the UN sanitation standards (which was already an issue in 2008)Footnote ¹⁹ as a ‘perfect storm’ for the outbreak of a massive cholera epidemic. The researchers conclude that the ‘assignment of attribution remain[s] controversial’.Footnote ²⁰ The ‘perfect storm’ theory provided a welcome cover for MINUSTAH and the UN legal department, both of which used the theory to claim that responsibility for introducing cholera has not conclusively been attributed to a single source.Footnote ²¹ However, the ‘perfect storm’ theory has been considered ‘a perfect lie’ by French epidemiologist Renaud Piarroux, who wrote an initial report on the cholera outbreak.Footnote ²² For Piarroux and his colleagues, all of the scientific evidence demonstrates that the cholera is attributable to the Nepalese contingent travelling from a country experiencing a cholera epidemic, and that faecal contamination of a local stream draining into the Artibonite River initiated the epidemic.Footnote ²³ Those scientists rebut the claims made by the University of Maryland researchers, and clearly demonstrated that their research ‘provided no evidence to counter that cholera was brought to Haiti by a contingent of Nepalese United Nations peacekeeping troops’.Footnote ²⁴ Despite the subtle pressure placed on the scientists not to further investigate the outbreak's cause,Footnote ²⁵ the link with the South Asian strain has been confirmed by numerous field investigations,Footnote ²⁶ including the UN's Independent Panel of Experts on the Cholera Outbreak in Haiti.Footnote ²⁷ It is now widely accepted that the cholera outbreak is directly attributable to Nepalese peacekeeping troops. UN Special Envoy, Bill Clinton, recognized that UN peacekeepers were the proximate cause of cholera in Haiti.Footnote ²⁸

After the introduction and outbreak the international aid machinery led by the UN failed to take the necessary steps to contain and eradicate cholera in Haiti. Firstly, the UN's World Health Organization (WHO), amongst other actors, battled against mass vaccination in Haiti, citing cost, logistical challenges, and limited vaccine supplies. Vaccination is clearly an option that could have saved lives in the first two years. Instead, the UN adopted a ‘wait-and-see’ approach. Within weeks, Haiti's Ministry of Public Health and Population (MSPP), the Pan-American Health Organization (PAHO), the Centre for Disease Control and Prevention, and various UN agencies developed a National Response Strategy against Cholera to monitor disease trends, detect outbreaks, and characterize the affected population to target relief efforts.Footnote ²⁹ At the same time, Haitians' distrust of some cholera programs impeded construction of treatment centres and delivery of lifesaving supplies.Footnote ³⁰ Despite this, some NGOs, including Médecins Sans Frontières (MSF), and some states, including Cuba, worked effectively to provide fluid resuscitation and dealt with up to 80 per cent of cases.Footnote ³¹ A debate between public health experts swiftly emerged regarding the opportunity for mass vaccination. The ‘minimalists’, including the WHO, favoured investment in health education and massive distribution of chlorine tablets, while the ‘maximalists’ argued in favour of using all the tools for preventing its spread, including a vaccination roll-out.Footnote ³² With no consensus attained in the first years, the minimalist position was implemented de facto. Two years after the outbreak, the vaccination campaign was finally implemented and the results so far have been overwhelmingly positive.Footnote ³³

Second, the UN failed to invest in a large-scale improvement of Haiti's water and sanitation systems before and immediately after the cholera outbreak, despite the peacekeeping mission's mandate to capacity-build and improve national infrastructure. Mark Schuller from New York City University reported that immediately before the outbreak, 40.5 per cent of camps did not have water and 30.3 per cent of camps did not have a single toilet. By January 2011, 37.6 per cent lacked water and 28.5 per cent remained without a toilet.Footnote ³⁴ One MSF official stated that ‘the inadequate cholera response in Haiti makes for a damning indictment of an international aid system whose architecture has been carefully shaped over the past 15 years’,Footnote ³⁵ especially the cluster system set up by the UN's Office of the Coordinator of Humanitarian Affairs. The only hope of eradicating cholera will be to couple the vaccination campaign with large-scale investments in the water and sanitation system, which the UN still has not implemented.Footnote ³⁶ The UN has now agreed on a $2.2 billion plan to eradicate cholera, but most observers agree that this has occurred too late and remains significantly underfunded.

Not only did the UN fail to protect Haitians from the introduction of cholera and to prevent the spread and continued existence of the disease, it has also failed to provide a remedy to individuals affected by the outbreak. Claims and a pending appeal filed in a New York District Court on behalf of 5,000 individuals affected by cholera in HaitiFootnote ³⁷ allege negligence, gross negligence, and/or recklessness by the UN and MINUSTAH. The lawsuit states that UN actions and failures to act are:

In February 2013, the UN responded to the claims by detailing the financial aid and other resources it has provided to prevent and reduce the spread of cholera. Yet it is clear that UN efforts in leading the international aid community's response to the outbreak have been inadequate at best. The UN has failed to address the substance of the claims – that it was responsible for the cholera outbreak and therefore liable to the victims. Instead, the UN insists that the claims are ‘not receivable’.Footnote ³⁹ The UN position is that the claims involve review of political and policy mattersFootnote ⁴⁰ and therefore are not private law claims. This essentially bars the claims being heard by UN dispute resolution mechanisms. In July 2013, the UN refused a request for compensation filed on behalf of the victims, relying on its absolute immunity from courts' jurisdiction.Footnote ⁴¹

The claims filed on behalf of the cholera victims focus on compensation for private law claims. Success or otherwise will depend on the extent to which the court places greater emphasis on the principles of UN absolute immunity or on the fundamental human rights to access a court and to access a remedy. The lawsuit is concerned with private law and therefore does not address whether the UN is bound by obligations under the right to health and whether it has violated human rights with regard to the outbreak. That question goes to the heart of whether and in what circumstances the UN may be bound by international human rights law. Those arguments complement the private law claims by demonstrating that the UN is bound both to prevent future violations and to remedy those that have already occurred.

3. The United Nations and human rights

The issue of whether the UN is bound by international human rights law goes beyond discussions about obligations of non-state actors and requires focus on obligations of international organizations. The International Law Commission has provided some work on the responsibility of international organizations, but this does not fully or even adequately address obligations.Footnote ⁴² Over recent years there has been a growing acceptance that international organizations are bound by international law.Footnote ⁴³ The European Court of Human Rights (ECtHR) has made clear that it regards the EU as bound by international human rights law.Footnote ⁴⁴ Others have drawn similar conclusions about international organizations; for example Dannenbaum considers that the UN is legally bound by international human rights law.Footnote ⁴⁵ If that is the case, then UN actions regarding the cholera outbreak and subsequent failures to eradicate the disease are in violation of the Organization's human rights obligations.

The UN is not party to human rights conventions. Although it is able to ratify some treaties, it is not able to ratify international human rights treaties. However, that does not mean the UN can claim that it is not bound by those laws. Where human rights form part of customary international law, they will bind the UN. Before addressing which laws bind the UN, we must establish how it is bound. Mégret and Hoffman set out three main ways in which the UN is bound: the external conception, the internal conception, and the hybrid conception.Footnote ⁴⁶

The external conception relies on the UN having legal personality, a point expressly emphasized by the ICJ in the Reparations Advisory Opinion. The Court ruled that the UN ‘is at present the supreme type of international organization and it could not carry out the intentions of its founders if it was devoid of international personality’.Footnote ⁴⁷ The Court re-emphasized that position in 1980, stating that international organizations ‘are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.Footnote ⁴⁸ International legal personality confers rights and duties under international law. The UN's legal personality is generally accepted to mean that it is bound by customary international law,Footnote ⁴⁹ which includes those human rights deemed to be customary international law.Footnote ⁵⁰

Dannenbaum, following the internal conception approach, insists that the UN is ‘constitutionally mandated to promote the advancement of human rights’Footnote ⁵¹ owing to the obligations contained within its constituent instrument. The relevant UN Charter provisions include its Preamble, as well as Articles 1(3), 55, and 56, all of which require the UN to promote, respect or encourage human rights.Footnote ⁵² Rios and Flaherty, building upon Dannenbaum's work, argue that Article 56 places a positive duty on UN member states to enforce the Charter's human rights obligations ‘over and above any other international law’,Footnote ⁵³ a position that has also been emphasized by the European Court of Justice.Footnote ⁵⁴

The hybrid conception focuses on the obligations of both the UN and its member states, reaching the conclusion that the Organization is bound by a broad range of obligations.Footnote ⁵⁵ Central to this argument is the idea that states cannot avoid their human rights obligations by using the UN as a vehicle by which they are then able to violate rights with impunity.Footnote ⁵⁶

Regardless of which theoretical framework is adopted, it seems inconceivable that the UN is not bound by at least part of international human rights law.Footnote ⁵⁷ That position has been affirmed by the ICJ in 1970Footnote ⁵⁸ when it stated that human rights violations are ‘a flagrant violation of the purposes and principles of the [UN] Charter’.Footnote ⁵⁹ The UN Human Rights Committee has also insisted that ‘there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms’.Footnote ⁶⁰ As Judge Sir Robert Jennings has stated, in the Lockerbie case: ‘It is not logically possible [for the UN] to claim to represent the power and authority of the law, and at the same time, claim to be above the law’.Footnote ⁶¹

It then falls to determine which human rights obligations bind the UN and what those obligations entail. The starting point is to consider whether the UN is bound by the rights contained in the Universal Declaration of Human Rights (UDHR). Although the Declaration is a non-binding document, it is codified in the International Covenant on Civil and Political Rights (ICCPR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the UN was the facilitator of and driver behind that codification process. Not all UN members are party to both Covenants but all states have accepted the UDHR as part of their membership of the UN. There is increasing acceptance that many of the rights contained in the UDHR form part of customary international law,Footnote ⁶² although some commentators go further and insist that the entire Declaration has attained that status.Footnote ⁶³ Regardless of which position one adopts, the right to health – to which we shall return in section 5 – can be shown to have the status of customary international law.

The right to health is contained in Article 25 of the UDHR and codified in the ICESCR. Even if we adopt the more conservative approach that only some rights in the Declaration have achieved customary status, it is clear that those include both civil and political rights and economic, social and cultural rights. The ESCR Committee has held that ‘basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law’.Footnote ⁶⁴ Schachter insists that basic subsistence rights, which includes the right to health, have achieved customary international law status,Footnote ⁶⁵ a thesis that Narula has applied to the right to food.Footnote ⁶⁶ That argument segues from the generally accepted position that subsistence rights are integrally bound together with the right to life, a right that has achieved customary international law status.Footnote ⁶⁷

Therefore, whether using the external, internal, or hybrid conception, and whether arguing that the entire Declaration or just some of the rights contained therein form part of customary international law, the UN can be shown to be bound by the right to health. As Mégret and Hoffman have pointed out, the scope of those obligations and the extent to which they bind the UN depends on the functions that the UN is fulfilling, particularly where it is undertaking acts typically viewed as being of a ‘sovereign’ nature,Footnote ⁶⁸ and we shall return to this issue in section 4.

The next question to be determined is in what circumstances the UN is bound by international human rights law. In the Reparations Advisory Opinion, the ICJ stressed that the UN is neither the functional nor legal equivalent of a state, ‘which possess the totality of international rights and duties recognized by international law’, and that the scope of the UN's rights and duties depends on its purposes, functions, and practices.Footnote ⁶⁹ The UN fulfils a range of roles. Each body has a different mandate, powers, and function, and some are composed of government delegates and therefore directly bound by the will of states, albeit the ICJ has emphasized that:

Some UN bodies are made up of independent experts, whilst others consist of UN employees. Clearly, the actions taken will be governed by human rights obligations in different ways depending on those institutions' mandates, roles, and composition. Field missions that are working ‘on the ground’ within states' territories will be bound in very different ways than the Human Rights Council, which can only issue non-binding resolutions and decisions. Yet where a body such as the Security Council holds powers that may directly impact upon human rights within a state, questions arise as to whether human rights obligations take priority over the body's mandate.

Mégret and Hoffman provide a useful analysis of the difference between the UN negatively affecting the realization of human rights or contradicting human rights principles, and actual human rights violations.Footnote ⁷¹ Using the example of sanctions imposed against Iraq, Mégret and Hoffman distinguish between the impact of sanctions and the cause of that impact. In that situation, the breaches of international law by Saddam Hussein's regime resulted in the UN lawfully using its enforcement powers. The impact upon human rights, then, can be traced to the regime continuing to breach international law despite the sanctions, embargoes or other enforcement powers that impact upon human rights within its territory. In those situations the UN exercises its roles and functions from afar, and its actions are in response to grave breaches of international law.

A distinction can be made between those situations when the UN acts as an organization and exercises its functions and powers, and the times when the UN acts like a sovereign power within a state's territory.Footnote ⁷² The distinction becomes clearer when considering the responsibility that member states have for the violations of human rights committed by international organizations. As d'Aspremont explains, where member states control the decision-making of an international organization they cannot evade responsibility for violations by using the organization's legal personality as a shield.Footnote ⁷³ UN acts that are overwhelmingly controlled by member states include resolutions, which countries draft, sponsor, and vote upon. Member states will then bear responsibility for any breach of international human rights law that arises from those resolutions.

Some resolutions adopted by member states create a situation in which the UN becomes an external actor rather than a forum for member states. It is at this point that the UN is bound by international human rights law in relation to its external activities. One example is where a resolution creates a UN mission to a state. Such missions are run by the UN and it follows that the UN is responsible for any human right violations committed by the mission.Footnote ⁷⁴ There are obvious parallels between that argument and the well-accepted responsibility of the UN for private law claims arising from peacekeeping missions. However, the difference between private law claims and human rights violations is who commits the wrongful acts. Private law claims arise from individual or groups of peacekeepers' acts. The peacekeepers are bound by obligations enshrined in Status-of-Forces Agreements and the UN has a duty to ensure that there are dispute mechanisms to which claims may be brought. Human rights violations arise from actions of the UN and, because it is bound by human rights obligations, the Organization is responsible for protecting those rights and remedying any violations.

4. UN peacebuilding missions and international human hights law

Since the 1990s the UN has increasingly assumed the role of power and authority within so-called weak or failed states. Rather than UN missions only being tasked with resolving conflicts, they have engaged in state-building and exercising powers of governance. These are functions of a state and therefore bring with it the responsibilities that a state actor would entail, including protecting and promoting human rights. Where it comes to failed states, Mégret and Hoffman argue, the UN takes on the role and functions of a state while its peacekeeping missions engage in state-building.Footnote ⁷⁵ They argue that ‘dramatic changes in the United Nations functions are gradually forcing us to reconceptualize the UN human rights role’ and the UN's ability to commit human rights violations.Footnote ⁷⁶ They insist that when the UN takes on state roles and functions, it is bound by human rights obligations in the same manner that a state is bound and will bear the same responsibility for violations. That argument is a logical conclusion to draw where the UN mission becomes a pseudo-state within a territory.

Prior to the 2013 ‘Human Rights Due Diligence Policy’,Footnote ⁷⁷ the extent to which the UN considered its operations to be bound by international human rights law was unclear.Footnote ⁷⁸ The UN Capstone Doctrine (2008) stated that peacekeeping operations ‘should be conducted in full respect of human rights’, that UN personnel ‘should act in accordance with international human rights law’ and ‘should strive to ensure that they do not become perpetrators of human rights abuses’, and that those that commit abuses ‘should be held accountable’.Footnote ⁷⁹ The general requirement was that all UN mission members comply with ‘the applicable portions of the Universal Declaration on Human Rights as the fundamental basis of our standards’.Footnote ⁸⁰

The UN's legal counsel accepts that:

The UN Secretary-General has also stated that the ‘international responsibility of the United Nations for the activities of United Nations forces is an attribute of its international legal personality and its capacity to bear international rights and obligations’.Footnote ⁸² Internal legal advice by the UN Office of Legal Affairs in 2009 reaffirmed ‘the Organization's obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law’.Footnote ⁸³ Security Council resolutions also regularly include references to human rights in mission mandates.Footnote ⁸⁴

In 2011 the Office for the High Commissioner for Human Rights, the Department of Peacekeeping Operations, the Department of Political Affairs, and the Department for Field Support adopted a joint Policy on Human Rights in United Nations Peace Operations and Political Missions, to provide ‘operational guidance’ to contribute ‘to the effective delivery of mandates and more coherent approaches across operations’.Footnote ⁸⁵ The UN also adopted a ‘Human Rights Due Diligence Policy’ in 2013Footnote ⁸⁶ that emphasized the need to ensure human rights across all peacekeeping activities. Although this was adopted after the cholera outbreak, the Secretary-General stressed that the policy

There are two ways in which UN missions function within a state's territory. The UN may be mandated to take over the entire administration of a state and undertake all of the necessary roles and functions.Footnote ⁸⁸ Alternatively, the UN may be given some legislative and administrative powers to act in conjunction with local actors.Footnote ⁸⁹ In situations when a UN mission becomes an interim state it will be bound by international human rights law and bear responsibility for violations. In Kosovo and Timor-Leste, the Security Council resolutions establishing the missions clearly set out that the UN would be the sole and sovereign power in those states. This meant that the UN assumed the role of the state and can be viewed as having sovereign powers within those territories both de jure and de facto. The UN missions also held the international legal personality at least de facto, as evidenced through the missions ratifying treaties on behalf of the states, and those ratifications binding successor national governments.

Where the UN holds sole power and authority within a state it is accepted that it is bound by international human rights law if it expressly agrees to such terms or if it is bound by existing obligations. In Timor-Leste an early regulation stated that ‘all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards’.Footnote ⁹⁰ In Kosovo, Section 2 of Regulation 1991/1 set out that UNMIK shall comply with international human rights standards when discharging its functions.Footnote ⁹¹ UNMIK later expressly submitted to existing Council of Europe monitoring mechanisms. The UN will also be bound by any human rights treaties to which that country is party, as is the case where a country takes over administration or control of another state.Footnote ⁹² Neither of those two methods takes into account the UN's existing obligations as an international actor with legal personality. Whether we adopt the internal, external, or hybrid conception, when the UN exercises external functions – rather than simply acting as a forum for member states – then it bears responsibility for violations directly attributable to its actions. Taking this approach leads to the conclusion that when the UN assumes power within a state, it is bound not only by express terms of reference to international human rights law and to existing obligations within that state but also by the obligations that bind the Organization.

The ECtHR has relied on the UN having international legal personality when determining whether it or its member states are responsible for human rights violations committed by a UN mission.Footnote ⁹³ Citing the ICJ Reparations Advisory Opinion, the ECtHR asserted that ‘the UN has a legal personality separate from that of its member states’Footnote ⁹⁴ and therefore was responsible for violations committed by UNMIK.Footnote ⁹⁵ In Behrami and Behrami v. France and Saramati v. France, Germany and Norway the ECtHR found that ‘the impugned acts and omission of KFOR and UNMIK cannot be attributed to the respondent states and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities’Footnote ⁹⁶ and were ‘in principle, attributable to the UN’. The Court reached similar decisions in Kasumaj v. Greece,Footnote ⁹⁷Gajić v. Germany,Footnote ⁹⁸Berić and others v. Bosnia and Herzegovina,Footnote ⁹⁹ and the Mothers of Srebrenica case.Footnote ¹⁰⁰

UN missions do not always act alone or autonomously – not all peacekeeping missions lead to the UN taking on all state roles and functions. Where a UN mission shares power with the state government, it is less clear as to who bears responsibility for human rights violations. Regarding Haiti, as has been set out in section 2, MINUSTAH was not created as – and never has assumed the role of – the sole and sovereign power. MINUSTAH was created by Security Council Resolution 1542 (2004) with a mandate that included assisting the Transitional Government to undertake its domestic sovereign functions such as

Although MINUSTAH was not mandated to undertake the role of the state, and thus to assume domestic sovereignty, the UN's role in Haiti required it to exercise authority and control within the country. While MINUSTAH's mandate has changed over the years,Footnote ¹⁰¹ it has continued to exercise varying levels of domestic control and authority in the support provided to the Haitian government. The question, then, is does the UN or does the Haitian government – or do both – bear responsibility for human rights violations? On the surface one would say the state is the sovereign power and therefore responsible. But that is too simplistic in situations where the government is the sovereign power de jure and the UN has de facto control.

According to Krasner, whose thesis focuses on the meaning and relevance of ‘sovereignty’ in the contemporary world,Footnote ¹⁰² we ought to focus on authority and control when examining what occurs within a state. Those tests enable us to determine which actor bears responsibility when there is a hybrid sovereign power within a state. Adopting those tests at the domestic level is logical, because only the entity with authority and control has the power to prevent and to remedy such abuses. This draws parallels with the ‘effective control’ test that has been adopted when considering the extraterritorial scope of application of human rights.Footnote ¹⁰³ Adopting this approach, the UN would bear responsibility for human right violations arising from its actions wherever it has domestic authority and control even if is not acting alone and therefore is not a sole and sovereign power.

As already discussed, MINUSTAH's predecessor, the Multinational Interim Force (MIF), was deployed to stabilize the country in February 2004. That same month, President Aristide was forced to flee Haiti amid political turmoil and violence. With the conflict intensifying between pro-government forces and the opposition, Aristide became increasingly isolated politically. On 29 February 2004 Aristide resigned and left the country.Footnote ¹⁰⁴ Subsequently, the UN, the US, Canada and the EU were instrumental in forming a government of technocrats, headed by Gérard Latortue, to lead the transition to the 2006 elections. The Security Council originally mandatedFootnote ¹⁰⁵ MINUSTAH to ‘build state capacity’ by ‘extending state authority throughout Haiti’ and by ‘ensur[ing] a stable and secure environment’.Footnote ¹⁰⁶

Haiti has long been under significant international influence. After the January 2010 earthquake, commentators asserted that Haiti was turned into a virtual trusteeship through the creation of the Interim Commission for the Reconstruction of Haiti (IHRC)Footnote ¹⁰⁷ or through logics of humanitarian neo-colonialism.Footnote ¹⁰⁸ The Haitian Parliament passed a law in April 2010 – a few months prior to the cholera outbreak – giving the IHRC complete authority over the country's governance for 18 months, before effectively dissolving itself.Footnote ¹⁰⁹ The Commission co-chaired by Haiti's then-prime minister, Jean-Max Bellerive, and the UN Special Envoy, Bill Clinton, was composed equally of Haitian and international members and all Commission decisions ‘shall be deemed confirmed’ unless vetoed by the Haitian president within 10 business days. Robert Fatton Jr. insisted that ‘the Commission preserves a legal façade of ultimate Haitian authority, but in reality it clearly places Haiti under a de facto trusteeship’.Footnote ¹¹⁰ In December 2010, the 12 Haitian board members rejected their ‘rubber stamp’ role, sending a formal letter to the IHRC criticizing the governance model that de facto excluded them from the most important decisions.Footnote ¹¹¹ Throughout that time, MINUSTAH remained the only functioning coercive force operating within the country. As a reminder of UN influence over the country, the Haitian president René Préval stated that MINUSTAH – and specifically the head of MINUSTAH, Edmond Mullet – tried to ‘remove him’ from the presidency in November 2010, in an echo of what happened to Aristide in 2004.Footnote ¹¹²

Following the earthquake on 12 January, the UN Security Council passed a resolution increasing MINUSTAH's overall force levels ‘to support the immediate recovery, reconstruction and stability efforts’, including up to 8,940 troops and up to 3,711 police officers.Footnote ¹¹³ In June, the Security Council passed another resolution sending further support to MINUSTAH and increasing its mandate.Footnote ¹¹⁴ Despite references to the sovereignty and territorial integrity of the Haiti government, the resolution increased MINUSTAH's powers in stabilizing and rebuilding the country as well as undertaking state roles and functions. Although de jure the government remained in power, de facto MINUSTAH held the authority and control. Therefore, using Krasner's test, the UN bears responsibility for any violations that occurred at that time. The next step is to determine whether the cholera outbreak involved any violations of the right to health.

5. The right to health

The right to health is a universal right contained within the UDHR,Footnote ¹¹⁵ the ICESCR,Footnote ¹¹⁶ as well as other core human rights conventionsFootnote ¹¹⁷ and regional treaties.Footnote ¹¹⁸ As a long-recognized and universal right, it is one of the many UDHR rights that form part of customary international law. Whether the UN is constitutionally bound by human rights obligations, including customary international human rights law, or whether it is bound by obligations stemming from those of its member states, it is clear that when exercising authority and control within a state, the UN is bound by the right to health.

The right to the highest attainable standard of health was first enunciated in 1946 in the WHO constitution. As well as being recognized in many international and regional treaties, the right is explicitly or implicitly recognized in many national constitutions. The substance, scope, and subjects of the rights are clearly defined, and there exists jurisprudence at the national, regional and international levelsFootnote ¹¹⁹ about the parameters of the obligation and the ways in which the right might be violated.

The right to the highest attainable standard of health cannot be and is not a right to be healthy. The Committee on Economic, Social and Cultural Rights characterizes the right to health as ‘a right to the enjoyment of a variety of goods, services and conditions necessary for the realization of the highest attainable standard of health’.Footnote ¹²⁰ It encompasses both healthcare and the underlying determinants of health. The right to health under the ICESCR includes the conditions necessary to lead a healthy life as well as access to adequate healthcare services in case of illness. ICESCR Articles 7 and 12 refer to measures required to ensure healthy working conditions and environments, which makes it clear that the right extends to the protection of health as well as access to healthcare services. In terms of the cholera outbreak and continued existence in Haiti, we are concerned not only with the provision of healthcare services but with the protection of health and the conditions necessary to lead a healthy life.

There are two main methods by which to explore the obligations arising under the right to health: the tripartite duties and the TripleAQ framework. The frameworks serve different purposes, with the formerFootnote ¹²¹ addressing normative content and the latter addressing states' obligations. The TripleAQ framework focuses on the availability, affordability, accessibility, acceptability, and quality of facilities, goods, services, and programmes in terms of socioeconomic rights, and is useful for determining the normative content of the right to health, for in terms of the cholera outbreak we are concerned with the UN's duties rather than conceptual clarification of the right to health or its progressive realisation.

The right to health gives rise to states or sovereign powers having tripartite duties: the duty to respect, the duty to protect, and the duty to fulfil.Footnote ¹²² The duty to respect requires the state or sovereign power to ‘abstain from performing, sponsoring or tolerating any practice, policy or legal measure violating the integrity of individuals or infringing upon their freedom to use those material or other resources available to them in ways they find most appropriate to satisfy economic, social and cultural rights’. That obligation requires the state or sovereign power to refrain from interfering with the right to health, and to take all necessary measures to ensure that it does not interfere with the right. Article 12 of the ICESCR is particularly important in terms of the cholera outbreak because it explicitly prohibits polluting the environment in a manner that is harmful to health. The UN, then, is bound by the obligation not to pollute the environment – which obviously would include tributaries and rivers – and to take the necessary measures to ensure that such pollution does not take place.

The duty to protect requires states or sovereign powers to prevent other actors violating individuals’ rights. Using Alexy's balancing theory Fredman insists that states or sovereign powers may only limit that protection where a balance must be struck with the human rights of other actors.Footnote ¹²³ Obligations include taking measures to redress human rights violations if they occur, and preventing further violations. The duty to protect requires steps to be taken to protect against hazards that interfere with individual's health and with the conditions required to lead a healthy life.

The duty to fulfil requires states or sovereign powers to take positive measures to ensure the full realization of the right, although there is recognition that fulfilment occurs through progressive realization. A state or sovereign power must at the very least implement the right's minimum core content. The Committee on Economic, Social and Cultural Rights considers Article 12 to be violated when a state or sovereign power does not ensure a minimum standard of health care unless that country can demonstrate that it has invested heavily and sought available international assistance. The minimum core content includes ensuring the existence of water and sanitation services in order to prevent detriment to health.

The UN was performing roles and functions as an external actor in Haiti and exercized authority and control throughout 2010, and therefore it was bound by the tripartite duties. The UN clearly has violated all of the tripartite duties. The inadequate screening for cholera that led to the introduction of cholera into Haiti violated the duty to respect the right to health and to protect Haitians from risks emanating from third parties, here the Nepalese peacekeepers. The poor waste management system at the MINUSTAH camp that allowed the cholera to pollute the main river in Haiti and to spread was in violation of the duties to respect and protect the right to health. The failure to take the necessary steps to eradicate cholera violates the duty to protect – in terms of remedying and preventing future violations – and the duty to fulfil the right to health. The UN continues to violate the duty to fulfil by failing to ensuring adequate access to clean and safe water after the pollution of the main river in Haiti.

6. Concluding observations

The aim of this article was not to explore the systemic violations of the right to health in Haiti caused by the UN, but rather to demonstrate that the UN was bound by obligations arising under that right and bears responsibility for any violations that occurred. The UN exercized authority and control within Haiti at the time of the cholera outbreak. Paust insists that it would be unlawful for the UN to order or authorize any human rights violations.Footnote ¹²⁴ Yet, by failing to provide sufficient screenings for cholera to UN peacekeepers, to create and sustain adequate waste management facilities within the MINUSTAH camp, and later to take the steps necessary to eradicate cholera, the UN has and continues to authorize human rights violations through negligence and omissions to act. By claiming that those violations stemmed from policy or political matters, the UN has not just violated human rights but is claiming that it is able to do so with impunity. That position, clearly, is ‘counterintuitive’Footnote ¹²⁵ given the UN's human rights obligations.

The problem remains that the UN is refusing to take responsibility for the cholera outbreak and continued impact of the disease in Haiti. The UN has classified as ‘not receivable’ claims filed on behalf of more than 5,000 victims of cholera.Footnote ¹²⁶ Those claims are being made under private law, alleging either negligence or gross recklessness in terms of the UN's screening of peacekeeping troops and maintenance of waste management sites at the MINUSTAH camp. The UN does not dispute that its peacekeepers brought cholera into Haiti, nor does it seek to absolve itself of blame for the conditions within the peacekeepers’ camp. Secretary-General Ban Ki-Moon has once again pointed to the Organization's absolute immunity from jurisdiction as a bar to individuals bringing claims against the UN.Footnote ¹²⁷

The UN has relied upon its absolute immunity from jurisdiction of national courts, which is based on Article 105(1) of the UN CharterFootnote ¹²⁸ and on Section 2 of the Convention on Privileges and Immunities of the United Nations.Footnote ¹²⁹ That immunity violates the fundamental rights of individuals to access a court and to seek a remedy and therefore a counterbalance exists through the UN being required to provide alternative mechanisms for resolving disputes. Section 29 of the Convention on Privileges and Immunities of the United NationsFootnote ¹³⁰ and the Model Status of Forces AgreementFootnote ¹³¹ both mandate that the UN set up local claims boards within any peacekeeping operation. Those claims boards are designed for individuals involved in a dispute with the UN or its staff. They allow such individuals to realize their rights to access a court and to seek a remedy despite the UN's absolute immunity. Yet the UN has refused to set up a local board to hear claims relating to the cholera outbreak. The UN insists that the claims concern ‘political’ or ‘policy’ matters rather than private law. Owing to this position, a case has now been brought to the New York District Court that is clearly based on human rights – regarding the rights to access a court and to access a remedy – to challenge the UN's absolute immunity.Footnote ¹³² Although the District Judge upheld UN immunity, an appeal is currently pending that seeks to challenge that ruling.

Whether that challenge will be successful remains to be seen. Even if the New York District Court does overturn, on appeal, the UN's absolute immunity, the case still must be heard on its merits. The likelihood is slim of a resolution or remedies in the near future. In the meantime, the impact of the cholera outbreak on individuals’ right to health in Haiti is ongoing. What we have demonstrated is that adopting a rights-based approach to the cholera outbreak results in the UN being legally bound to remedy the human rights abuses and to take the appropriate measures to contain the epidemic in order that further abuses do not occur. Our approach provides an alternative method for ensuring that the UN cannot avoid its responsibilities by using the cloak of absolute immunity from jurisdiction of national courts.