The United Nations as Good Samaritan: Immunity and Responsibility

Table of ContentsI. Introduction 343 II. The Doctrinal Framework of U.N. Immunities 348A. Rights, Remedies, and Reasons for U.N. Immunity 349B. The Doctrine of U.N. Immunity 353C. Cases Deemed "[N]ot [Receivable" Under the CPIUN 356III. The Case Against Absolute Immunity 362A. The Case from Accountability 365B. The Case from Distributive Justice 367C. The Case from Economics 369D. Counterarguments 370IV. Considerations and Consequences of Partial U.N. Immunity 374A. The U.N. Must Provide Reasonable Alternative Means 375B. The Immunity Must Involve a Core Mission or a Constitutional Question 377C. In Borderline Cases, the U.N. Must Assess Whether It Should Waive Its Immunity 379V. Conclusion: The Public Legitimacy of the U.N. and Role of Member States 380I. IntroductionSince the creation of the U.N. (or the Organization) in 1945, its need for immunity from the jurisdiction of member state courts has been understood as necessary to achieve its purposes. These immunities extend to its premises, property, archives, communications, and the different categories of persons connected with it.1 Immunities, however, conflict with an individual's right to a remedy and the law's ordinary principles of assigning responsibility for causing harm. This inherent conflict at the center of the immunity doctrine has evolved into a very public rift in the case of three recent mass torts cases against the U.N., where the independence of the Organization is perceived by some to have trumped the dignity of affected individuals.In the Haiti Cholera,2 Kosovo Lead Poisoning,3 and Mothers of Srebrenica4 cases, individuals have alleged that the U.N. committed a wrong in the course of peacekeeping operations, sought a forum to hear their claims, and asked for a remedy.5 Due to a combination of factors, including the U.N.'s broad immunities, the limited jurisdiction rationae personae of courts over international organizations (IOs), the nascent state of the U.N.'s own internal review mechanisms, not to mention continuing debate over what obligations bind the U.N. direcdy under international law, these cases of human tragedy have resulted in neither compensation by the U.N. to the victims, nor access to domestic courts.At the heart of the U.N.'s immunity is the notion that it is an organization created to save future generations from the scourge of war by maintaining international peace and security.6 The U.N.'s immunities are linked to this mandate and are limited to those necessary to fulfill its functions.7 Like the Good Samaritan who in good faith assists injured parties is granted some immunity from liability in most domestic jurisdictions,8 the U.N.'s immunities protect it from vexatious litigation and interference.9 In many jurisdictions, similar principles limit the ability of individuals to make claims against federal governments10 and charitable organizations.11From a fairness standpoint, however, injury or loss of life for the victims of U.N. action is no less grievous when caused by the U.N. than by any other tortfeasor. Even though the U.N. provides public goods such as a forum for world dialogue, negotiations, and peacekeeping, the theoretical basis for granting the U.N. absolute immunity is curiously thin.12 At the time the Convention on Privileges and Immunities of the U.N. (CPIUN) was drafted, the whole field of privileges and immunities of IOs was largely "uncharted territory,"13 and founding states projected what immunities they thought the U.N. would need with little information from practice. The legislative history of the CPIUN confirms that the biggest fear of U. …