ASIL 2017 Recap: Claims against the United Nations: From Within and Without

By: Loren Turner

At 9:00 a.m. Friday, April 14, 2017, during ASIL’s annual meeting, a panel of international law experts assembled to address the accountability of the United Nations in its peacekeeping operations (or, in practical terms, lack therof).  The topic is getting increasing attention in light of recent evidence that U.N. peacekeepers caused the cholera outbreak in Haiti and sexually-abused children and women during peacekeeping operations in Central Africa.

The panelists were: Simon Chesterman, Professor of Law at the National University of Singapore; Andreas Vaagt, with the United Nations Secretariat, and Patricia Galvao Teles, with the International Law Commission.  Alejandro Sousa, senior legal adviser to the U.N. General Assembly, moderated the discussion.

Professor Chesterfield unpacked the concept of accountability into two inquiries: (1) to whom is the United Nations accountable and (2) for what?  In short, the answers are: (1) unfortunately, no one – yet; and (2) violations of humanitarian law.

In 1952, when there were 60 countries that comprised the United Nations, a committee of the American Society of International Law (referenced here) questioned whether the U.N. was subject to the laws of war.  After all, the U.N. was not, itself, a party to the Geneva Conventions or any other treaties.  It was not until the Kosovo intervention in 1999 that it was decided yes, humanitarian law applies to U.N. peacekeeping operations because: (1) the U.N. is an independent actor – separate from member States – when it exercises peacekeeping functions under the U.N. Charter (2) customary law supports humanitarian intervention in certain situations and the laws of war thus apply to the actors performing the humanitarian intervention and (3) the U.N. increasingly exercises state-type activities, such as in Kosovo when it set up panels to prosecute criminals and freeze assets.

Yet, despite theoretical application of laws of war to U.N. peacekeeping operations, the practical reality is that the U.N., as an international organization, has absolute immunity.  Additionally, individual U.N. officials have immunity as well.  When the U.N. admitted its role in Haiti’s cholera epidemic, victims brought suit in U.S. federal court.  The Second Circuit dismissed the case for lack of subject matter jurisdiction, finding the U.N. was indeed immune under Section 2 of the Convention of the Privileges and Immunities of the United Nations, which states “The 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…” So, victims in places where the U.N. operates, such as in Haiti, have no avenue to contest activities or hold the U.N. accountable.  The organization that is supposed to enforce the rule of law around the world is not itself accountable.

Mr. Vaagt spoke on behalf of the United Nations. He said enforceability of the rule of law related to personnel actions depends on member states. Once article V or VI of the U.N. Charter is invoked, the status of forces agreement (SOFA) between the U.N. and the host country applies.  Under the SOFA, the state(s) providing humanitarian personnel maintain exclusive jurisdiction of those individuals.  The concept of exclusive jurisdiction also applies to NATO forces going into NATO countries.  Once the U.N. refers a case to a state, it is up to the state to investigate and prosecute the offender.  General Assembly resolution 62/63 urged states to exercise that jurisdiction.  Yet, to date, despite approximately 100 case referrals, not a single state has pursued charges.  

As to the immunity of U.N. staff, only official high level U.N. officials have diplomatic immunity.  But, there are other U.N. employees who have functional immunity, which can be waived by the U.N. Secretary General.  Officially, the U.N. has a zero tolerance policy and Secretary-General Guterres recently released a strategy to end impunity for sexual exploitation and abuse system-wide.  It is too early to comment on the effect of that strategy. Regardless, unless waived by the Secretary-General, immunity stands.

Ms. Galvao Teles said that the issue of U.N. accountability is not a new one.  There are three strategies that have been raised to attempt a balance between immunity and impunity: (1) revise the 1946 Convention on the Privileges and Immunities of the United Nations; (2) envision a convention on the jurisdictional immunities of international organizations; or (3) tackle the immunity question within the context of “settlement of international disputes” to which international organizations are parties.  In Ms. Galvao Teles’s opinion, none of these strategies is appropriate.  It is risky to revise agreements that already contain good law.  Given the current international political climate, the Secretary-General says he is happy to have what we have rather than risk getting less.  Maybe it is not the rules that need to change, but the implementation.  We could clarify when a waiver of immunity would be appropriate.  We could define better the phrase “private claim.” We could explore a sanctions-type system to handle claims rather than relying on judicial resolution.  All of these are better options than revising an established treaty.  As to the second idea of envisioning something new?  Not going to happen.  What would it add?  Again, it is probably an issue about new strategies of implementation rather than the creation of new rules.  The last idea, the topic of tackling the immunity question within the context of settlement of international disputes, was added at the sixty-eight session of the International Law Commission.  Ms. Galvao Teles thinks it is more likely that the International Law Commission would provide draft clauses to address the issue of immunity – not an entire convention.

[For more information about this program, read the official recap on ASIL Cables].

It’s Time For Chicago!

Registration is now open for the 2016 AALL Annual Meeting and Conference in Chicago!  In addition to member-discounted pricing, deeply discounted registration rates are available for students and retirees. Nonmember conference registration packages also include a complimentary one-year AALL membership – by joining us in Chicago, you’ll be joining AALL as well!

The FCIL-SIS looks forward to welcoming all attendees to its 2016 Schaffer Grant for Foreign Law Librarians presentation, which will take place on Monday, July 18, from 4:30 p.m. until 5:30 p.m., in Hyatt-Columbus GH. This year’s recipient, Ms. Rheny Pulungan, is Liaison Support Librarian at the University of Melbourne’s Law School Library. As Liaison Support Librarian, she supplies reference services, teaches legal research workshops, and completes collection development projects. Ms. Pulungan holds a Ph.D and Masters degree in International Law from the University of Melbourne, and a Master of Information Studies in Librarianship from the University of Canberra. Previously, Ms. Pulungan received her Bachelor of Laws from Gadjah Mada University in Indonesia, and served as Law Faculty Lecturer at Bengkulu University, where she specialized in international law. Ms. Pulungan’s experience in both Indonesian and Australian law, as well as law librarianship, will be reflected in her presentation, which will treat comparatively access to legal information in both countries.

In addition to the Schaffer Grant presentation on July 18, the AALL Conference will feature the following FCIL-related programming:

Sunday, July 17th

4:00 p.m. – Asian Legal Information in English: Availability, Accessibility, and Quality Control

Tuesday, July 19

8:30 a.m. – Roman Law, Roman Order, and Restatements

11:00 a.m. – Vanishing Online? Legal and Policy Implications for Libraries of the EU’s “Right to be Forgotten”

The FCIL-SIS is also working with the American Society of International Law to co-sponsor a pre-conference workshop to be held on Saturday, July 16 at 9:30 a.m. ($50 additional registration fee applies.)  The workshop, which is entitled Two Sides to the United Nations: Working with Public and Private International Law at the UN, is designed to equip all law librarians with foundational knowledge of the United Nations and CISG (both of which have recent significant changes to their online databases), and to increase their fluency with the major U.N. and CISG documents, information, research resources, and strategies.

If you are presenting on an FCIL-related topic in Chicago and would like your program to be featured on DipLawMatic Dialogues, or if you are interested in blogging about the conference programs listed above, please contact blog administrators Susan Gualtier (susan.gualtier@law.lsu.edu) or Loren Turner (lturner@law.ufl.edu). We look forward to seeing you in Chicago this summer!

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AALS Field Trip to the United Nations: a report

By Anne E. Burnett

The International Law Section of the Association of American Law Schools offered the first-ever AALS Field Trip to the United Nations during last week’s AALS meeting in Manhattan. Claudio Grossman (Chair, United Nations Committee against Torture and Dean of the American University Washington College of Law) and Mark Wojcik (Professor, John Marshall Law School—Chicago) organized the January 7th event, which included a briefing, lunch, a tour of the UN buildings, and time to visit the U.N. bookstore and gift shop.

About 35 international law professors, visiting scholars and librarians started the day with a trek from the conference headquarters near Times Square to the UN building on a cold but sunny morning.  After clearing security, we assembled in a meeting room (where I ogled the committee meeting agenda left on the door – hey, I’ve helped our researchers locate those agendas!) for a briefing by an excellent panel discussing the general topic of “The Future of the United Nations in the 21st“ with a more specific focus on human rights issues.

The briefing, ably moderated by Mark Wojcik, included the following panelists and topics:

  • Claudio Grossman, Chair, United Nations Committee against Torture and Dean of the American University Washington College of Law
    Topic: “The Human Rights Treaty Bodies of the United Nations – Challenges for the Future”
  • Ben Majekodunmi, Senior Human Rights Officer, Political, Peace-keeping, Humanitarian and Human Rights Unit, Executive Office of the UN Secretary-General
    Topic: I do not have the specific title for this portion as he was not on the agenda but his very interesting comments were mostly about obstacles to the UN responding to serious human rights violations
  • Katarina Mansson, Capacity Building & Harmonization Section, Human Rights Treaties Division, United Nations Office of the High Commissioner for Human Rights (OHCHR)
    Topic: “Partnering for Peace and Rights: The Evolving Relationship Between the United Nations and Regional Organizations”
  • Craig Mokhiber, Chief of the Development and Economic and Social Issues Branch, United Nations Office of the High Commissioner for Human Rights (OHCHR)
    Topic: “Development and the Post-2015 Development Agenda”
  • Richard Bennet, Representative and Head of UN Office, Amnesty International.
    Topic: “Amnesty International’s Efforts”
  • Joanna Weschler, Deputy Executive Director & Director of Research, Security Council Report
    Topic: “The Security Council Report” – see http://www.securitycouncilreport.org/  to access this resource which provides information about the activities of the Security Council and its subsidiaries.

During the luncheon, we enjoyed an interesting keynote by His Excellency Cristian Barros, Ambassador and Permanent Representative of Chile to the United Nations, speaking on “Chile’s Participation at Security Council (2014-2015).” He discussed the practicalities of working on the Security Council as the representative of a non-permanent member.

The afternoon tour included visiting the General Assembly Hall, the Security Council Chamber, the Trusteeship Council Chamber, and the Economic and Social Council (ECOSOC) Chamber.  Each grand room has been donated by a member country, along with symbolic furnishings and art. We also toured exhibits on human rights, disarmament, and the Post-2015 Development Agenda. Varied massive pieces of art donated by member countries provided sobering yet optimistic backdrops throughout the tour. (Note: our tour did not include either the Secretariat Building or the Dag Hammarskjöld Library  – something to explore next time.)

The tour ended with stops at the United Nations Bookshop and the gift store.

Woven throughout the field trip, from the briefing to the luncheon to the exhibits and the bookshop, were references to the Post-2015 Development Agenda, which provides a plan of action for the United Nations through 2030. The international library community advocated strongly, and successfully, for the inclusion within the development agenda of access to information, which is referenced under several of the 17 Development Goals. If you’d like to know how this could impact your work, check out the efforts of groups such as the International Federation of Library Associations and Institutions (IFLA), which continue to provide support for advocacy efforts to include access to information in national development plans.