Originally published by Priya Pillai, OpinioJuris, May 8, 2020
On 4 February 2020, Foreign Policy published an article, “U.N. Chief Faces Internal Criticism over Human Rights”. While the article categorizes failures on the part of the UN relating to the human rights mandate of the organization, I was struck by the allegations relating to the role of the UN’s lawyers, in particular regarding Haiti.
On 30 April 2020, the UN Special Rapporteur on extreme poverty and human rights, in his last day in that post, issued a statement with a number of other special rapporteurs highlighting the need to put this issue back on the agenda. In light of the Covid-19 pandemic, the statement emphasized the piecemeal approach of the UN in community assistance projects as inadequate, and addressed the need for effective remedies and reparations. These failures regarding Haiti were also brought up previously by the Special Rapporteur in a report to the UN General Assembly in 2016.
While there is a lot to say about the liability of the UN – and there are multiple posts that deal with this topic (here and here) – I focus here on the role of the lawyer in an international organization. Having worked in-house at an international humanitarian organization, the larger issues brought up regarding the role of counsel and in particular, in the protection of human rights, are worthy of greater exploration. But first, a bit of background.
Haiti and the United Nations Office of Legal Affairs
An outbreak of cholera in Haiti in 2010, which has killed approximately 10,000 individuals, has been attributed to a strain of the disease brought into Haiti by UN peacekeepers at the United Nations Stabilization Mission in Haiti (MINUSTAH). There have been attempts at mediation, and to bring legal claims against the UN, when it failed to admit legal responsibility. In the controversy surrounding the lack of response of the UN, the role of the in-house lawyers has been singled out for harsh criticism.
In 2016, the UN Special Rapporteur on extreme poverty and human rights in his report to the UN General Assembly, stated:
“From the outside, and to many on the inside, the reason seems to be that the legal advice given by the Office of Legal Affairs has been permitted to override all of the other considerations that militate so powerfully in favour of seeking a constructive and just solution. Rule by law, as interpreted by the Office, has trumped the rule of law.” (para. 72)
In his press statement in October 2016, based on the report presented, the UN Rapporteur does not mince words, and singling out the legal office, characterized its approach as based on a “patently artificial and wholly unfounded legal pretence for insisting that the Organization must not take legal responsibility for what it has done.” He also stated the approach “has been cloaked in secrecy: there has been no satisfactory official explanation of the policy, no public attempt to justify it, and no known assessment of its consequences for future cases. This goes directly against the principles of accountability, transparency and the rule of law that the UN itself promotes globally.”
There seems to have been a significant role of OLA in this situation, which brings me to the question – who do lawyers in-house serve and what is their role and function?
Read the full article here.