Institute for Justice and Democracy in Haiti

Surreply to the US Government’s Response on UN Immunity

This is our final brief on the question of UN immunity. In it, the plaintiffs argue against the US government’s July 7th response to our previous opposition brief.

Part of the brief is below. Click here for the full version.

MEMORANDUM OF LAW IN FURTHER OPPOSITION TO THE GOVERNMENT’S STATEMENT OF INTEREST

August 28, 2014

INTRODUCTION

Plaintiffs respectfully submit this response to the Government’s Letter in Further Support of its Statement of Interest (the “Reply”) in this case seeking to hold the United Nations and its officers accountable for their role in precipitating the ongoing cholera epidemic in Haiti.

The Government’s Reply mischaracterizes the core issues before this Court as turning on whether Defendants have waived immunity under Section 2 of the CPIUN, adopted Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 16.[1]  Waiver is not at issue here.  The core issue for this Court to decide is whether Defendants may enjoy immunity under Section 2 of the CPIUN when they have materially breached the treaty and refused to satisfy a condition precedent to the treaty’s immunity provisions.

The Government concedes that the CPIUN imposes an “obligation” on Defendants to provide a forum for Plaintiffs to assert their claims, and does not dispute that the Defendants have breached that obligation.  Reply at 4.  Yet the Government asks the Court to disregard the legal consequences of Defendants’ breach on the grounds that: 1) the violation does not prove that Defendants waived immunity under Section 2, and 2) Plaintiffs lack standing to assert the breach because they are not parties to the CPIUN.  Both arguments are unavailing.

Section 29’s condition that the UN “shall” provide modes of settlement of private law claims is mandatory and without exception under the plain text of the CPIUN, and constitutes a material term that cannot simply be ignored.  It is well established that a party that breaches or fails to satisfy a condition precedent of a contract cannot then enjoy the benefits of its bargain.  Here, Defendants may not selectively choose among the CPIUN’s benefits and obligations to evade accountability for private law torts.  Additionally, Plaintiffs have standing to assert that Defendants have committed this breach because they do so now in response to the Government’s claim of immunity, not as a basis for relief.

Accordingly, the Court should deny the Government’s request that this case be dismissed on the ground of immunity and affirm that service of process is proper.



[1]               Plaintiffs incorporate the abbreviations defined in their Memorandum of Law in Opposition to the Government’s Statement of Interest, filed on May 15, 2014 (hereinafter “Opposition”).

 

Click here for the full brief.

*CPIUN: Convention on Privileges and Immunities of the United Nations

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