In October 2010, United Nations (UN) peacekeepers caused a deadly cholera epidemic in Haiti. Although over 8,000 Haitians have died of the disease and over 700,000 have been sickened, the UN has provided no method for cholera victims and their families to make claims and seek redress. Cholera victims and their lawyers had a hearing of their case against the UN in October 2014 but the judge dismissed the case on the grounds that the UN can’t be sued. In the brief below (just the intro is included), cholera victims and their lawyers appeal the judge’s decision.
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Principal Appellate Brief of Plaintiffs
May 27, 2015
This case presents an issue of first impression for U.S. courts: whether the United Nations (“UN”) may benefit from immunity under the Convention on the Privileges and Immunities of the United Nations (“CPIUN”), Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 16 (SA-14-37), when it has not complied with its obligation under that treaty to provide modes to settle claims arising from its tortious acts.
The case is a class action lawsuit arising out of the largest cholera epidemic in the world. This epidemic, which has killed and sickened hundreds of thousands of people, was caused by the UN’s discharge of untreated human waste into Haiti’s largest river system. The CPIUN generally grants the UN immunity from suit and service of process, but also unequivocally requires the UN to “make provisions for appropriate modes” to settle private law claims such as those that the Plaintiffs in this case—Haitian and American victims of the cholera epidemic—have against the organization for the harms it caused. § 29(a). The UN violated this requirement by refusing to make any such provisions for the cholera victims’ claims.
The UN’s violation of Section 29 of the CPIUN renders immunity under the treaty unavailable for two reasons: First, compliance with Section 29 is a condition precedent to the UN’s entitlement to immunity, which has not been satisfied here. Second, failure to comply with Section 29 constitutes a material breach of the treaty such that the UN is not entitled to the treaty’s protections. Accordingly, the decision of the U.S. District Court for the Southern District of New York to dismiss the case on the grounds that the UN, as well as its codefendants the UN Stabilization Mission in Haiti (“MINUSTAH”), a UN subsidiary; UN Secretary-General Ban Ki-Moon; and Edmond Mulet, former Special Representative of the Secretary-General (collectively, “Defendants”), were entitled to immunity was incorrect as a matter of law. The District Court’s application of immunity where Plaintiffs have been denied all alternative means to seek redress was also erroneous because it violated the U.S. Plaintiffs’ constitutional rights to access the courts. The decision results in an expansive application of immunity previously unrecognized by U.S. courts and unintended by the drafters of the CPIUN.
In reaching its decision, the District Court improperly relied on Brzak v. United Nations—a case that is inapposite here because it did not address the legal consequences of the UN’s breach of the CPIUN. See SA-1-8 (Oetken, J.) (citing Brzak v. United Nations, 597 F.3d 107, 112 (2d Cir. 2010)). Brzak was brought by employees of a UN agency who had access to, and used, an internal claims review process. Those plaintiffs argued that the UN had waived its immunity pursuant to Section 2 of the CPIUN, not that it was no longer entitled to immunity after having violated Section 29. Thus, although in Brzak this Court recognized the “absolute immunity” generally available to the UN under the CPIUN, the Court did not have occasion to consider whether that immunity remains available even when the CPIUN has been violated and no alternative remedy whatsoever exists.For any and all of the foregoing reasons, Plaintiffs respectfully urge this Court to reverse the District Court’s dismissal and to remand the case to proceed forward on its merits. Such a ruling would preclude UN immunity in the narrow circumstance where the organization has refused to provide any mode to settle private law claims by tort victims in violation of the CPIUN. It would not unduly expose the UN to the threat of vexatious litigation, as the UN would simply need to comply with its promise under the treaty to guarantee its immunity.
Click HERE for the full document.