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Home EJIL Analysis The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

Published on December 9, 2016        Author: 

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.

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11 Responses

  1. Kriangsak Kittichaisaree

    Thank you for bringing attention to this important issue. UN reputation has been cast in a negative light in another matter: sexual abuse by certain UN peacekeepers. See: http://www.telegraph.co.uk/women/politics/the-vile-sex-abuse-by-un-peacekeepers-is-leaving-the-united-nati/

    The 2nd preambular para. of the Convention on the Privileges and Immunities of the UN reads: “Whereas Article 105 of the UN Charter provides that the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes and that representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.” Privileges and immunities are not the same thing as impunity; they are merely procedural bars to harassment/prosecution in the territory where the UN/reps. operate(s).

    I appreciate your view re: the ILC Draft Articles on IOs’ Responsibility. The DAs may be seen as progressive development of IL and a departure from the traditional State-centric IL. We must start somewhere to ensure that IOs bear responsibility for their wrongs.

    Even the well-received and oft-cited ILC Draft Articles on State Responsibility are not immune from criticism. Every 3 years, the UNGA debates what to do with these latter DAs. On 7 Oct. and 4 Nov. 2016, the 6th Committee of the UNGA spent time discussing this. Algeria, Russia, Portugal, Iran, Mexico, CELAC and Cuba, as well as the African Group were in favour of having a diplomatic conference to conclude a convention based on the ILC DAs on State Responsibility. CANZ and the US opposed this idea on the ground that the DAs should remain guidelines for reference by States and international courts, and that should the DAs become a convention they might not be as widely accepted as they were now. Singapore was concerned with negative implications of DAs, esp. the ones on countermeasures. The UK stressed that State practice in this area was still evolving and some DAs did not reflect customary IL.

    So, you can’t please everyone. Please keep on with your good work on IOs’ responsibility.

  2. Jordan J Paust

    Immunity is also inconsistent with Article 55(c) of the UN Charter, which binds the UN and its entities to seek to achieve universal respect for and observance of human rights, such as the right to an effective remedy. See http://ssrn.com/abstract=1710744
    Agreed?

  3. RiccardoPavoni

    Dear Kristina
    many thanks for your post, much needed here in Europe!
    You note that “Over the past six years, cholera in Haiti has received attention that was high in both quality and quantity”; if you are talking about attention in the media, then I would say that applies to America, because I think that this story has been substantially ignored by European media (with the exception of the Guardian in the UK and little more…).

    I largely agree with your points about the importance of reputation concerns in this affaire. At the same time, I insist, as I did in this piece (http://www.qil-qdi.org/wp-content/uploads/2015/07/03_Haiti-Cholera-Case_PAVONI_FIN.pdf), that an amazing determinant of the UN’s new course were (and still are) the “antibodies” (Special Rapporteurs, HRC Special Procedures, etc) that the UN system is able to produce to protect itself against self-destructive policies (as Alston calls them).

    Prof Paust: wholeheartedly and humbly agreed by me, but not by most courts, U.S. courts in the first place.. but this time I am really happy for the right to a remedy, although without “effective” for the time being; it’s too early to even dare to think that the victims of this tragedy will be compensated in any meaningful way…

  4. Jordan J Paust

    Riccardo: we need your efforts to make human rights even more effective. So much more to accomplish.
    Best wishes.

  5. Dapo Akande

    Dear Jordan,

    Given that the immunity of the UN is provided for in Art. 105 of the UN Charter, can it be argued that UN immunity as a whole is inconsistent with Art. 55 of the same Charter? Or is that you think immunity in cases where an allegation of human rights violations is made in inconsistent with the Charter? Leaving aside the position in this particular case, do you think it is the mere allegation of human rights violations that should negate the immunity.

  6. Kriangsak Kittichaisaree

    Dear Dapo and Jordan,

    Art. 55 of the UN Charter reads: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations AMONG NATIONS BASED ON based on respect for the principle of EQUAL RIGHTS and SELF-DETERMINATION OF PEOPLES, the UN shall promote: … (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

    With due respect, an ejusdem generis interpretation of the above would not support the argument that Art. 105 of the UN Charter is superseded by Art. 55(c) thereof. However, the Charter (which is a treaty) “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (Art. 31(1), Vienna Conv. LOT). Art. 1, para. c of the Charter stipulates that one of the purposes of the UN is: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights ….”

    Immunity of the UN is not one of the purposes or referred to as an “object” of the Charter. Hence, Art. 105 could be said to be subject to Art. 1(c) of the Charter.

  7. Kristina Daugirdas Kristina Daugirdas

    Dear Kriangsak, Jordan, Riccardo, and Dapo,

    Thanks very much for your comments.

    Kriangsak, the issue of sexual abuse by peacekeepers is indeed a very important one; please stay tuned for future work on this topic.

    Jordan and Dapo, I disagree with the view that immunity and article 55(c) of the UN Charter are categorically inconsistent. International organizations can simultaneously promote human rights and maintain their immunity from suit in national courts by, e.g., devising effective alternative methods to resolve disputes.

    Riccardo, the question you raise is a good one. When I described the attention that has been paid to the Haiti-cholera case, I didn’t mean just media attention. I meant the attention paid to the issue by the full range of actors who engaged in the legal and policy questions, including scholars, current and former UN officials (Navi Pillay spoke out in favor of compensation back in 2013), NGOs, judges–and the independent experts that you mentioned. The EJIL article on which my blog post is based is clearer about this point.
    (See http://repository.law.umich.edu/cgi/viewcontent.cgi?article=2417&context=articles).

    Best,

    Kristina

  8. Jordan J Paust

    Dear All: immunity as such is not provided in Article 105, but only that which is “necessary for the fulfillment of its purposes.”
    The word “necessary” is a strong limitation, unlike words such as useful, reasonable, or rational. Moreover, purposes include those in Articles 1 and 55. And the purpose and necessary obligation in 55(c) must include the human right to an effective remedy. It is not necessary for fulfillment of such purposes that immunity exist for human rights violations. Indeed, it would be contrary to the purposes in 55(c), given the right to an effective remedy.
    Long ago the ICJ recognized that to violate human rights is a fundamental violation of the duty to promote respect for and observance of human rights. E.g., re apartheid practiced. Therefore, although there can be choice regarding ways to achieve universal respect for and observance of human rights, at a minimum there must not be a violation of human rights — violations violate 55(c) and correlative duties of member states under Article 56.

  9. Jordan J Paust

    p.s. additionally the word “shall” in Article 55 is mandatory. Given the ICJ affirmation, shall promote at a minimum means shall not violate.

  10. RiccardoPavoni

    Dapo, I realize I agreed with Jordan too apodictically… I just meant to say that I agree with the proposition that a failure to provide an effective remedy for breaches of human rights should imply loss of UN immunity (or State immunity for that matter). “Should” because I’m fully aware that ICJ, various national courts or the ECtHR in Mothers of Srebrenica have rejected this proposition. However, let’s not forget that the UN is under a treaty obligation to devise an “appropriate” remedy for disputes of a private law nature to which it is a party under sect. 29 of the 1946 General Convention on UN immunity. And the real bone of contention are the implications, if any, of that obligation for the enjoyment of absolute immunity under sect. 2 of the same Convention.
    On the other hand, as Jordan ventilates, another aspect which is not yet finally settled is how to make sense of the notion of UN functional immunity in Art. 105 Charter and how to reconcile that notion with absolute immunity under sect. 2 General Convention.
    However one sides, it seems to me undeniable that the Haiti Cholera Case shows once again the increasing contemporary relevance of the human right of access to justice and/or to an effective remedy. At the same time, the THREAT of denials of immunity because of a lack of protection of that right continues to play the key function of urging wrongdoers to negotiate with the victims and their representives (or with the “international community” as in the cholera case) and accordingly devise remedies and compensatory schemes (in this respect, think also of the recent U.S.-France Agreement on compensation for victims of Holocaust-related deportation, which was concluded under the mounting pressure of litigation in U.S. courts against France). All the very best

  11. Jordan J Paust

    Dapo: to mention one example, rape is not necessary for fulfillment of the purposes of the Charter or a UN peacekeeping mission — whether one recognizes that rape is a war crime or a violation of article 7 of the ICCPR.