Immunity of the un in the Case of Haitian Cholera Victims

In: Journal of International Peacekeeping

This article will analyze the issue of un’s absolute immunity, in particular in the case of the complaint that has been brought against the un by the victims of the cholera outbreak in Haiti. It will argue that under certain circumstances domestic courts should not automatically accept that the un has absolute immunity with regard to all damages that are caused by un Peacekeeping Forces. Instead courts should draw a careful balance between the interest of upholding un’s absolute immunity and the interest of guaranteeing due process rights to individuals adversely affected by un’s actions. The aim of this article is to provide an analysis that may assist in striking such balance. To that end, it will explore the rationale underlying the immunity of international organizations, and it will examine relevant case law of the European Court of Human Rights and several domestic courts. Some of the cases considered concern the issue of targeted sanctions, in which a similar conflict emerges between two opposing international obligations. In addition, the present article will draw a parallel with the distinction used in the field of State immunity between iure imperii and iure gestionis.

  • 25

    Hazel Fox, The Law of State Immunity (Oxford: Oxford University Press, 2002), p. 30–31. See also Al-Adsani v United Kingdom, European Court of Human Rights, 21 November 2001, application no. 35763/97 [54].

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  • 28

    Schermers and Blokker, International Institutional Law, p. 253.

  • 31

    Klabbers, International Institutional Law, p. 149.

  • 35

    Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law’, p. 1383.

  • 39

    Fox, The Law of State Immunity, p. 272.

  • 45

    Fox, The Law of State Immunity, p. 285, and Klabbers, International Institutional Law, p. 33.

  • 50

    Dixon, Textbook on International Law p. 170.

  • 51

    Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, p. 54.

  • 69

    Van Alebeek and Nollkaemper, ‘Netherlands’, p. 190 and 197.

  • 115

     See Shelton, Remedies in International Human Rights Law, p. 29 and 100. Cf. Stephen Gardbaum, ‘Human Rights as International Constitutional Rights’, European Journal of International Law, vol. 19, no. 4, 2008, p. 749 and 763.

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  • 118

    Hollenberg, Challenges and Opportunities for Judicial Protection against Decisions of the Security Council, p. 91 and 255.

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