U.S. Federal Court of Appeals upholds United Nations' immunity in case related to cholera in Haiti.


On October 9, 2013, a group of Haitian cholera victims and their survivors sued the United Nations, along with two UN officials and the United Nations Stabilization Mission in Haiti (MINUSTAH), in the U.S. District Court for the Southern District of New York. (1) The plaintiffs alleged that the United Nations had negligently and recklessly allowed peacekeepers from Nepal carrying cholera to enter Haiti in the wake of the 2010 earthquake without reasonable health screenings. (2) The suit further alleged that the United Nations had negligently maintained inadequate sanitation facilities. (3) Finally, the petitioners alleged that the United Nations' refusal to accept responsibility for the outbreak had exacerbated the epidemic. (4) According to the United Nations, by August 2016, nearly 800,000 people had become infected with cholera, and more than 9,000 had died of cholera. (5)

The United States submitted a statement of interest to the district court, arguing that the United Nations and all other defendants were immune from suit under the 1946 Convention on the Privileges and Immunities of the United Nations (CPIUN). (6) Of note, the CPIUN requires the United Nations to "make provisions for appropriate modes of settlement" of certain categories of disputes. (7) Pursuant to that provision, the plaintiffs had previously filed a petition for compensation with the secretary-general. The United Nations denied the petition on the grounds that the claims were "not receivable" under the CPIUN because "consideration of these claims would necessarily include a review of political and policy matters." (8)

On January 9, 2015, the District Court dismissed the plaintiffs claims for lack of subject matter jurisdiction:

The Charter of the United Nations ("UN Charter") states that the UN "shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes." The CPIUN, which was adopted less than a year after the UN Charter, defines the UN's privileges and immunities in more detail. The CPIUN provides that "[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity." Because the CPIUN is self-executing, this Court must enforce it despite the lack of implementing legislation from Congress. The Second Circuit's decision in Brzak v. United Nations requires that Plaintiffs' suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that "[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless 'it has expressly waived its immunity.'" Here, no party contends that the UN has expressly waived its immunity. Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs' suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit. (9) The District Court also ruled that the immunity of the United Nations was not contingent on the availability of an alternative means of dispute resolution. (10) Finally, the court held that the United Nations officials named in the suit were also immune. (11)

The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. (12) While the decision from the three-judge panel was pending, 158 members of Congress signed a bipartisan letter from Michigan representative John Conyers Jr. expressing frustration with the United Nations' lack of accountability: (13)

We write to urge the State Department to immediately and unreservedly exercise its leadership to ensure that the United Nations (UN) take concrete steps to eliminate the cholera epidemic introduced to Haiti in 2010 by waste from a UN peacekeeper camp, and to comply with its legal and moral obligations to provide cholera victims with access to an effective remedy. ... While the deaths, illness, and evidence of malfeasance mounted, UN Assistant Secretary-General Pedro Medrano Rojas, who met with Congress as the UN's point person for responding to the epidemic, left office in June 2015 and was not replaced. The UN continues to refuse to even discuss providing compensation for the losses incurred by those killed and sickened by the cholera it brought to Haiti, and there is no notable progress in its proclaimed efforts to provide the water and sanitation infrastructure necessary to control the cholera epidemic. ... While we do not wish to take a position in the litigation, we are deeply concerned that the State Department's failure to take more leadership in the diplomatic realm might be perceived by our constituents and the world as a limited commitment to an accountable and credible UN. (14) In response to this letter, a State Department spokesperson praised Representative Conyers's leadership and emphasized the United States' commitment to assisting Haiti in combating the cholera outbreak, highlighting the $95 million the United States had already spent for treatment and prevention. (15)

Additionally, before the Second Circuit ruled, a report criticizing the United Nations' response to the cholera outbreak by the United Nations special rapporteur on extreme poverty and human rights, Philip Alston, was leaked to the press. An excerpt follows: (16)

The scientific evidence now points overwhelmingly to the responsibility of the peacekeeping mission as the source of the outbreak. 9,145 persons have so far died and almost 780,000 have been infected. To date, the United Nations has denied responsibility for the outbreak, rejected all claims for compensation, refused to establish any procedure to resolve the resulting disputes, and has relied on a claim of...

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