Overwhelming evidence demonstrates that UN peacekeepers are the source of a 2010 cholera outbreak that has infected nearly 800,000 people and killed more than 9,000 people. After refusing to apologize or provide redress to the individual victims for six years, the United Nations appears to be changing course. On December 1, UN Secretary-General Ban Ki-moon spoke to the General Assembly about the United Nations’ “new approach” to cholera in Haiti.
Ban’s remarks are notable both for what he said—and for what he did not. Ban finally apologized to the Haitian people. He outlined the steps the United Nations planned to take to combat cholera in Haiti, and to provide benefits, possibly including monetary compensation, to the individuals and communities that were most directly affected. Ban also spoke about the United Nations’ reputation: he urged member states to “seize this opportunity to address a tragedy that […] has damaged our reputation and global mission.” Now for the omission: Ban did not say that that the United Nations had a legal obligation to take any of these steps, even though the lawfulness of the United Nations’ conduct in connection with the cholera crisis in Haiti has been forcefully challenged.
It is these latter two points that I want to address. A couple of years ago, EJIL published an article of mine entitled Reputation and the Responsibility of International Organizations, which argued that international organizations have a strong incentive to cultivate and preserve reputations for being law-abiding. It drew on the cholera crisis in Haiti as a case study. Developments since then confirm the importance of reputation in motivating international organizations—and also highlight a crucial shortcoming of relying on reputation to keep such organizations in line.
Reputation serves as an important motivator for international organizations partly because it is so difficult to challenge the legality of IO action before any kind of court. National courts won’t decide such cases because IOs have robust immunities. International courts are sometimes technically available, but resorted to very rarely.
Instead, as I explained in my article, organizations’ actions, and the legal arguments that organizations make to defend them, are subject to scrutiny by scholars, legislators, IO officials, non-governmental organizations, and newspaper editorial writers, among others. International organizations are especially sensitive to this discourse, I argued, because credible arguments that international organizations are not living up to their legal obligations can damage their reputations—and, by extension, their legitimacy. Preserving both matters to international organizations because their effectiveness depends on voluntary cooperation and support.
The United Nations’ response to cholera in Haiti can be understood in terms of these dynamics. As a legal matter, the United Nations’ response to cholera in Haiti is most vulnerable on the grounds that it is inconsistent with section 29(a) of the Convention on the Privileges and Immunities of the United Nations, which requires the United Nations to “make provisions for appropriate modes of settlement” of “disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” The United Nations denied a petition from Haitian cholera victims on the grounds that the dispute was not one of a “private law character,” and thus section 29 was not applicable. This position encountered profound skepticism—and received no support—in public discourse, both as of 2014 and since then.
As it turns out, national courts played an important role in this discourse, even though the Haitian plaintiffs lost on immunity grounds before both the district court and the court of appeals. The lawsuit kept the media and the legal community focused on the United Nations’ deficient response to the cholera crisis. During oral argument last March, the very first question from the court of appeals was about the United Nations’ response: “has anything been done to remediate this situation, has compensation been paid to the victims?”
Reputational concerns appear to have played a role in the United Nations’ decision to change course. Indeed, it is striking how prominently reputation has figured in recent exchanges. In August, a highly critical report by Philip Alston, the UN special rapporteur on extreme poverty and human rights, was leaked to the press. His report excoriated the United Nations’ response to cholera to date, and emphasized the urgency of restoring the United Nations’ damaged credibility, legitimacy, and reputation. The word “reputation” shows up three times in the Secretary-General’s written report on the United Nations’ new approach. And the Secretary-General again invoked reputation—twice, in fact—in last week’s remarks before the General Assembly.
Notably, the steps that the Secretary-General just announced to deflect this threat to its reputation could be characterized as fulfilling section 29’s requirements, albeit without acknowledging any legal obligation to do so. This refusal to acknowledge a legal obligation is unsurprising in light of past practice of international organizations. In my article, I canvassed the ways that international organizations sought to deflect charges that they were violating international law. Sometimes organizations ceased the challenged behavior; other times they took steps to come into compliance with the relevant norms. I found no cases where organizations acknowledged international obligations to take these steps.
Given this context, is it problematic that the United Nations didn’t acknowledge an international obligation to provide redress to Haitian cholera victims? In particular, what does it bode for the future? Given the high-risk situations in which the United Nations operates, another similar tragedy could occur.
If, by declining to acknowledge a legal obligation the United Nations sought to preserve flexibility for the future, I doubt it will succeed. The United Nations’ new approach to cholera in Haiti sets a standard against which its own future actions—as well as the actions of other international organizations—will be judged. Precedents need not legally bind institutions in order to be influential. The ICJ, for example, is not legally bound to follow its prior case law, but you wouldn’t know that from reading its opinions. The United Nations would be hard-pressed to justify treating a like situation differently. Should UN peacekeepers introduce another epidemic, I suspect that the United Nations would respond with something like the “new approach,” and would do so more promptly to avoid the firestorm it has experienced over its response to cholera in Haiti.
What worries me are the smaller-scale tragedies that may occur. Reputation as a mechanism for keeping international organizations in line depends on a range of sophisticated actors paying sustained attention to what organizations are doing. Over the past six years, cholera in Haiti has received attention that was high in both quality and quantity. Indeed, still more attention is needed to make sure that the “new approach” is actually funded and implemented. Smaller-scale tragedies will not elicit comparable attention. And without that attention, international organizations may be tempted to sweep embarrassing facts under the rug.
An international organization’s desire to protect its reputation can be a powerful and positive force. But it won’t always be enough.