Protection in the name of efficiency can the UN's immunities continue to be justified by functional necessity?

Guichardaz, Héloïse Colombine (2024) Protection in the name of efficiency can the UN's immunities continue to be justified by functional necessity? PhD thesis, University of Glasgow.

Abstract

In 2010, following a devastating earthquake, the United Nations (UN) was accused of bringing and spreading cholera in Haiti via a contingent of peacekeepers. Following a long process that involved the UN factually denying that it was responsible for the introduction of the disease, the claimants, a group of Haitians who had been directly or indirectly affected by the disease, went to court in the US. In 2016, the court of appeals ruled that the UN could not be compelled to deliver reparations, as it benefited from absolute immunity. In making this decision, the court followed both the Convention on Privileges and Immunities of the United Nations (also called the General Convention) and the recommendations of the US government, buttressed by previous cases such as the lead poisoning scandal in Kosovo that emerged in the late 1990s, also caused by the UN and for which they also escaped demands for reparations.

This decision as well as the reaction of the UN was harshly criticised by NGOs, the media, and the academic literature. Yet despite the nature of the claims, the number of victims, and the increasing involvement of peacekeepers in the daily lives of vulnerable populations leading to more opportunities to cause harm, there is a general unease in questioning the necessity of absolute immunity for the UN. The doctrine, courts, and the UN itself all participate in maintaining the idea that the UN requires the broadest scope of immunity in order to function, as if the UN was still an emerging organisation in need of protection. This narrative of functional necessity has permeated the discussions on UN reform, and influenced most reform proposals to focus on a better implementation of the existing rules.

Despite this lack of change, there is a real risk that a situation like Haiti and Kosovo could happen again. This thesis therefore critically assesses the narrative of functional necessity, and argues that as the organisation and its range of action have evolved, it is now obsolete. Taking inspirations from other organisations but to a greater extent from States - entities which have seen their once absolute immunity reduce over time - this thesis will propose a reform based on restricting the immunity of the UN and advocating for an independent judicial body to be established in order to examine the claims that inevitably follow. The objective is to take into account both the UN's unique nature and its main goals, with the overarching argument being that if no move towards reparations is taken, the crippling effect on the UN would end up far more dangerous and costly for the organisation and its goals.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Subjects: K Law > K Law (General)
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Devaney, Dr. James, Tams, Professor Christian and Peevers, Professor Charlie
• Date of Award: 2024
• Depositing User: Theses Team
• Unique ID: glathesis:2024-84647
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 31 Oct 2024 16:28
• Last Modified: 31 Oct 2024 16:37
• Thesis DOI: 10.5525/gla.thesis.84647
• URI: https://theses.gla.ac.uk/id/eprint/84647