Case of the Day: Georges v. United Nations

Haitians confronting peacekeepers about cholera

The case of the day is Georges v. United Nations (2d Cir. 2016). This is the Haiti cholera case. I’ve written about it a couple of times, including a post on the District Court’s decision dismissing the complaint. From the beginning I predicted dismissal on immunity grounds, and barring en banc review or intervention by the Supreme Court, that’s how it’s turned out.

Here was my description of the case from the prior post:

The case is a putative class action by Haitians against the United Nations, the UN Stabilization Mission in Haiti, and two UN officials, Secretary-General Ban and former Under-Secretary-General Edmond Mulet. The claim was that the defendants are liable for the injuries caused by the cholera epidemic in Haiti. It seems that UN troops introduced the disease to Haiti, which had previously been free of cholera.

The plaintiffs sought to deliver the summons and complaint to UN officials at the UN headquarters in New York but were refused entry. They also sent the summons and complaint to the UN by certified mail and by fax and now have moved for an order deeming service to have been effectuated or, in the alternative, seeking leave to serve process by mail or fax.

The District Court dismissed on the grounds that the UN itself had immunity under the Convention on the Privileges and Immunities of the United Nations, which provides that the UN “shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity …” It rejected the argument that the immunity provision of the Convention didn’t apply because the UN hadn’t satisfied its obligation under the Convention to “make provisions for appropriate modes of settlement of … disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” And it held that under the Convention, the Secretary General and the Under-Secretary General had the same immunities as diplomats.

The Second Circuit has now affirmed on the grounds that the UN’s obligation to provide a dispute resolution mechanism is not a condition precedent to its immunity under the Convention. The Court noted that the Convention’s exception to the rule of immunity in cases of express waiver was the only exception under the maxim expressio unius est exclusio alterius, and under the ordinary principle of contract interpretation that disfavors conditions precedent and requires that they be stated in plain and unambiguous language. The Court also gave deference to the Executive’s construction of the treaty, which accorded with the Court’s views.

The Court also held that the plaintiffs lacked standing to argue that the UN’s supposed material breach of its obligations under the Convention meant that the UN was no longer entitled to the benefits of the Convention. Only the United States itself could make such an argument, and the United States has instead rejected it. The Convention creates no privately enforceable rights. Last, the Court rejected the view that the Convention is unconstitutional because it denies the plaintiffs the right of access to the courts. That argument is an argument against immunity itself, which is well-established.

By coincidence, the New York Times has just reported on the confidential report by special rapporteur Philip Alston regarding the Haiti situation, and the UN’s response to the report. Alston called the UN’s position “morally unconscionable, legally indefensible and politically self-defeating.” Of his three points, the second is clearly wrong in my view, as the Second Circuit’s decision shows. But now that the UN has preserved the principle of immunity, it really ought to make some process available to remedy, at least partially, the harm its peacekeepers inadvertently caused in Haiti.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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