Institute for Justice and Democracy in Haiti

European law scholars and experts file amicus brief in cholera case, tell court UN Immunity Cannot Be Impunity

Brief by European law scholars and practitioners support Plaintiffs in a brief that courts outside of the United States balance an international organization’s immunity protection with victims’ right of access to court. They describe how those courts have required that in return for immunity in court, international organizations must provide harmed individuals with a reasonable alternative procedure.

Manfred Nowak, Professor of International Law and Human Rights at Vienna and Stanford University and former UN Special Rapporteur on Torture, who signed on to the brief, stated that “the UN needs to understand that immunity cannot mean impunity. If it refuses to provide people alleging harm with a path to justice, courts will refuse to uphold its immunity.”

Part of the brief is below. Click HERE for the full document.

 

ARGUMENT

1. INTRODUCTION

The present case involves a question of increasing importance as international
organizations (“IO”) have come to play a greater role globally: how to balance the immunity necessary for these organizations to conduct their work without interference, on the one hand, with the fundamental need to protect individuals’ rights against abuse, on the other. More than half a century of jurisprudence on this topic in European courts demonstrates that most courts apply a balancing approach to IO immunity. In return for granting immunity, they require IOs to provide reasonable alternative means for the adversely affected individuals to protect their rights. Considering the fundamental importance of access to justice for safeguarding human rights protection in individual cases, a tailored approach is called for. Given the UN’s complete denial of access to reasonable alternative means in the present case, this Court should deny Defendants immunity for their cholera-related torts and afford the Plaintiffs access to the Court.

2. THE RIGHT TO A REMEDY IS CENTRAL IN PROTECTING INDIVIDUALS’
HUMAN RIGHTS
The due process rights of effective remedy and access to court are not only human rights
in and of themselves, but they also operate as a mechanism for ensuring the observance of other human rights. The lack of a remedy is, in effect, similar to the lack of a right. See Dinah Shelton, Remedies in International Human Rights Law 29 & 100 (2d ed. 2006). Courts have acknowledged this fundamental importance, and there is an increasing tendency in case law towards safeguarding individuals’ due process rights, even in cases where they are balanced against other weighty public interests. See e.g., Joined Cases C-402/05 P & C-415/05 P, Kadi & Al Barakaat Int’l Found. v. Council & Comm’n (Kadi I), 2008 E.C.R. I-06351, ¶¶ 342-44, 363, 368-70; A & Others v. United Kingdom, 2009 Eur. Ct. H.R. 301 ¶ 220; Sec’y of State for Home Dep’t v. AF (FC) & Another, 2009 UKHL 28 ¶¶ 59, 71, 116, 119 (appeal taken from Eng. &Wales). While courts in Europe, like those in the U.S., regularly acknowledge that there are legitimate grounds to grant immunity to IOs before domestic courts, such immunity can directly interfere with individuals’ ability to enjoy the right to a remedy. Hence European courts have broadly accepted that granting such immunities is only lawful if balanced with adversely affected individuals’ due process rights. See, e.g., Waite and Kennedy v. Germany, 1999-1 Eur. Ct. H.R. 393.

 

Click HERE for the full document.

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