The United Nations on Trial: Can the UN be sued?

The United Nations[1] have grown into a very powerful organization in the world today. We have all heard the saying, “with great power, comes great responsibility”. However, some people argue that the UN cannot be made liable in any court of law for wrong done by it. This paper will evaluate the arguments for and against UN’s responsibility and come to an informed conclusion on whether, in reality, the UN can be sued.

Why the UN should be liable?

The UN is capable of being sued due its legal personality. In 1949, the UN requested an advisory opinion from the International Court of Justice[2] on whether, when an agent of the UN is injured while performing duties relating to an individual State, the UN may bring an international claim against the State’s government for damages caused to either the UN or to the victim. The ICJ opined that the UN has legal personality and therefore was entitled to sue the State for damages.[3]

According to the Oxford Dictionary of Law, a legal person is any human or non-human entity, in other words, any human being, firm, or government agency that is recognized as having legal rights and obligations, such as having the ability to enter into contracts, to sue, and to be sued.[4]

Therefore, the fact that the UN enjoys legal personality and can sue of its own right also implies that it can also be sued, as rights and obligations go hand-in-hand according to the definition of the term.

There is also the argument that any organization yielding so much power will eventually become corrupted and needs to be accountable, as there is some truth to the statement that “power corrupts and absolute power corrupts absolutely.”

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Why the UN should not be liable?

In 1946, the year of its first General Assembly, the UN granted itself legal immunity as one of its first official acts.[5] Member states signed a ratifying treaty, and that immunity has been endorsed separately by laws passed in many member states.

“You can’t sue the United Nations in a domestic court or any court because governments have signed the treaty and some countries like the U.S. have even put it in domestic legislation.”[6]

By virtue of the Convention on the Privileges and Immunities of the United Nations, and the UN Charter, the U.S. Federal Court has ruled that “the UN is immune from suit unless it expressly waives its immunity.”[7] Likewise, the Appeal Court in The Hague ruled that “the UN has been granted the most far-reaching immunity, in the sense that the UN cannot be brought before any national court of law in the countries that are a party to the Convention.” [8]

Is there a way out?

Voluntary Acceptance of Responsibility

The fact that the majority of the sovereign world consists of members of the UN Convention, means that they are bound by it. Therefore they cannot bring a claim against the UN. The only thing we can do is build diplomatic pressure on the organization to voluntarily accept its liability, lest its reputation in the world will deteriorate and it will lose the mandate of the people. According to Alex Whiting, a Harvard Law professor,

“What happens is there are typically alternative mechanisms for resolving disputes. If a UN member commits a tort, the UN will typically agree to some sort of settlement process to resolve it for the victim.”[9]

In 1965, for example, UN peacekeepers in the Congo were accused of damaging properties and injuring people. They submitted claims to the UN, and the UN settled some of the claims.[10] Even in the Cholera outbreak in Haiti, the UN has pledged to provide justice out of court.[11]

An Independent Tribunal

The UN can also solve the problem by establishing an independent tribunal, to hear the claims of those who allege they have been harmed by their actions. They should empower the tribunal, when applicable, to award appropriate relief. This action would be consistent with their responsibilities to respect human rights and to comply with international law.[12]

Moreover, setting up a tribunal would not be unprecedented. Many international organizations, including the UN, already have administrative tribunals to deal with employment cases.[13]

By doing this, the UN can offer those they are alleged to have harmed a chance to have their claims adjudicated in a fair hearing before an independent decision-maker.[14]

If they do not, the courts in UN member states should follow the example of a number of European courts, and strip them of their immunity in appropriate cases.[15]

Conclusion

To sum up, the status quo provides no mechanism for taking the UN to court. The only possible way is if the UN itself forfeits its immunity and accepts responsibility, but that would still not provide us with objective justice. An impartial tribunal would help in that aspect but that idea seems to be far-fetched based on UN’s recent approach to the situation in Haiti.

[1] Hereinafter “UN”.

[2] Hereinafter “ICJ”.

[3] Reparation for Injuries Suffered in the Service of the United Nations (1949) I.C.J. 174

[4] Elizabeth A. Martin, Oxford Dictionary of Law (7th edn, Oxford: Oxford University Press 2003); Smith, Bryant, “Legal Personality” [1928] Yale Law Journal 37 (3): 283–299.

[5] Convention on the Privileges and Immunities of the United Nations.

[6] NBC News <https://www.nbcnews.com/news/other/why-cant-anyone-sue-united-nations-f8C11266822> accessed on 8/12/17 (per Larry Johnson, a former UN official who teaches international law at Columbia Law School).

[7] UN Watch <https://www.unwatch.org/why-you-cant-sue-the-un/> accessed on 8/12/17.

[8] Ibid.

[9] NBC News <https://www.nbcnews.com/news/other/why-cant-anyone-sue-united-nations-f8C11266822> accessed on 8/12/17.

[10] Ibid.

[11] The New York Times <https://www.nytimes.com/2017/08/24/world/americas/haiti-cholera-lawsuit-united-nations.html> accessed on 8/12/17.

[12] The Conversation <https://theconversation.com/what-can-be-done-to-stop-the-united-nations-abusing-its-immunity-61227> accessed on 8/12/17.

[13] Ibid.

[14] Ibid.

[15] Ibid.

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Muhammad Naimur Rahman

Muhammad Naimur Rahman is a trainee lawyer at the Dhaka Judge Court.

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