Thursday October 23, 2014, Judge J. Paul Oetken heard oral arguments on the question of UN immunity in the cholera case. This was the first opportunity the plaintiffs had to argue their case and Judge Oetken seemed well-informed and very engaged. This article describes some of the plaintiffs’ and the US attorney’s arguments, as well as issues that were not discussed. Judge Oetken’s decision is pending.
Part of the post is below. Click HERE for the full text.
Privileges and Immunities Hearing in The Haiti Cholera Case against the UN
Kristen Boon, Opinio Juris
October 27, 2014
An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York. For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal. Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development. Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN. Three amici spoke on behalf of plaintiffs.
In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN). This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.
In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case. According to the US government, Article 29 cannot be read as a condition precedent to Article 2.
Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities. He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents.
Click HERE for the full text.