How to Get Away with Cholera: The UN,
Haiti, and International Law
Mara Pillinger, Ian Hurd, and Michael N. Barnett
The legalization of world politics is often celebrated for reducing impunity for those who contribute to humanitarian crises. This
may sometimes be true but the opposite is also true. In 2010, United Nations peacekeepers unwittingly brought cholera to Haiti
and sparked an epidemic. Nearly a million people were made sick and 8,500 died. Legal activists have sought to hold the UN
responsible for the harms it caused and win compensation for the cholera victims. However, these efforts have been stymied by
the structures of public international lawâ€”particularly UN immunityâ€”which effectively insulate the organization from
accountability. In short, the UN is empowered, and the cholera victims disempowered, by legalization. The Haiti case
powerfully illustrates the dangers of legalism, which have been largely overlooked in discussions of international law, and suggests
that law alone is an inadequate arbiter of responsibility in international politics.
They filled the benches
and told us of death upon death
A man whoâ€™d lost his son:
â€˜I am a bird left without
a branch to land on.â€™
Jeffrey Brown, â€˜Haitiâ€™
n October 2010 UN peacekeepers from Nepal arrived
in Haiti carrying the Vibrio cholerae. By way of leaky
latrines, they introduced the cholera-causing bacteria
into a river that ran behind their camp at MÃ©yÃ¨ and began
an epidemic that as of November 2015 had killed over
9,000 people and sickened over 750,000, about 7 percent
of Haitiâ€™s population.2 It was a devastating public health
disaster in a country already decimated by an earthquake
earlier in 2010. Although much about the case remains
contested, there is little dispute regarding the UNâ€™s role
and the consequent suffering and loss of life.
In response to the epidemic, activists in the United
States and Haiti have attempted to compel the UN to
take responsibility for the epidemic in the form of an
apology, investment in clean water, and compensation for
the victims. They have not claimed that the UN had
intentionally introduced the disease nor that it has
criminal responsibility; instead, they assert that it had
unintentionally harmed them and thus has a form of civil
responsibility. They submitted petitions for relief to the
UN offices in New York and in Haiti, and when these
were rejected they filed lawsuits in U.S. courts against
the United Nations and its senior leadership. In response,
the UN has used the immunity provided by international
law to shield itself from legal action. The UNâ€™s position
has been upheld by the courts with the result that in
practice the UN cannot be held accountable for the harms
it caused in Haiti. With its immunity, the UN can act with
Much of the commentary surrounding this case has
focused on the perceived moral failure of the UN;
however, we shift attention to the role of international
law. International law has been more than the neutral
background to this story; it has been a central actor. And
far from being a force that protects the weak from the
strong, as is the standard portrayal in contemporary
treatments of international politics, it has contributed
Mara Pillinger is a doctoral candidate at George
Washington University ([email protected]). Ian Hurd
is Associate Professor of international politics at Northwestern University ([email protected]). His most
recent work is the Oxford Handbook of International
Organizations (co-edited with Jacob Katz Cogan and Ian
Johnstone, 2016). Michael Barnett is University Professor of
International Affairs and Political Science at George
Washington University ([email protected]). He is the
author, most recently, of Empire of Humanity: A History
of Humanitarianism. For comments on earlier versions of
this paper, the authors thank participants at seminars at ISA
(Toronto, 2014), the Midwest Colloquium on IO/IL
(Chicago, 2014), the American Bar Foundation (Chicago,
2014), and the Universidad del Norte (Barranquilla,
Colombia, 2014), the anonymous reviewers at Perspectives
on Politics, Jeffrey Isaac, Bronwyn Leebaw, Jacqueline
Stevens, and Samuel Moyn. They are also grateful to Greger
Calhan for his insight and to Jules Ottino-Loffler for early
70 Perspectives on Politics
Â© American Political Science Association 2016
directly to the substantive outcome in which the victims are
denied redress. The legalization of the Haiti/cholera case
ensures that the UN cannot be held responsibleâ€”indeed, it
cannot even be forced to discuss its responsibilities. This calls
to mind Charles Dickensâ€™ Oliver Twist, wherein Mr. Bumble
receives word that the law presumes that his wife operates
under his direction: â€œIf the law supposes that,â€ says
Mr. Bumble, â€œthe law is an assâ€”a idiot.â€ International law
might or might not be an ass, but the case of Haiti exposes
aspects of the political power of international law that are
routinely overlooked by liberal internationalists and others
who see international legalizationâ€”the fitting of political
disputes into a legal frameâ€”as a solution to political
To grasp the limits of international law we turn to the
concept of legalism, which Judith Shklar defined as an
â€œattitude that holds moral conduct to be a matter of rule
following, and moral relationships to consist of duties and
rights determined by rules.â€
3 In bringing Shklarâ€™s critique
of legalism to the study of international law and politics,
we intend to explore how international law can be more
than a domesticator of power and deliverer of justice but
also an accessory to power and defender of the status quo.
As it assigns responsibility and accountability for some
actions, the law simultaneously assigns irresponsibility and
immunity for others. With its ideology of impartiality and
objectivity, legalism can become a source of judgment that
is viewed as superior to everyday morality and politics and
thus provide the criteria for determining whether a moral
breach has occurred. Legalism, in this regard, can help
determine whether the suffering of another is viewed as
worthy of public concern. The law can legitimate suffering.4 Yet legalism can cause those who demand change to
channel their resistance into legal modalities. Law might
serve as a stealth defender of the powerful and help
legitimate their privileges. In international relations, for
instance, law helps to produce distinctions between the
civilized and the uncivilized that enables the â€œcivilizedâ€ to
intervene in and govern the rest.5
The case of Haiti and the concept of legalism provide
important reminders of the limits of international law.
This is valuable for two reasons. First, as the power and
responsibility of international organizations (IOs) have
expanded over the last two decades, there is growing
attention to IO accountability, and international legalization is often seen as the answer to their deficits of
accountability.6 There is ample evidence of harms caused
by UN peacekeeping.7 The United Nations has recently
found itself accused of various kinds of harms, including
exploiting weak and vulnerable people. Peacekeepers have
repeatedly been accused of criminal activity and human
rights violations, including trafficking, child abuse, and
rape, and the UN has apparently been covering up this
misbehavior, most recently in the Central African Republic.8 In response, there has been a wave of research
and policy recommendations to improve the accountability
of IOs, many of which use law and legalization as
a centerpiece.9 The Haiti case undermines the assumption
that law leads to accountability by demonstrating how law
may produce its opposite as well. Law can be the solution
but it also can be the problem.
Second, Shklar advanced her concept of legalism as
a wake-up call for practitioners but also as an antidote to
the assumption that legalization is an inherently positive
normative force. She observed lawâ€™s Jekyll-and-Hyde
character: it can be both progressive and reactionary
depending on the political ends to which it is put. This
dual nature has generally been overlooked in International Relations (IR) scholarship. IR debates about law
have concentrated on arguing over whether or not law can
constrain power. To respond to the realistsâ€™ contention
that that law was irrelevant or epiphenomenal (because it
depended on existing state power to work), IR liberals
and constructivists have sought evidence of lawâ€™s ability
to constrain powerful states and nudge them into
compliance.10 These debates understood law as an
alternative to powerâ€”â€œa multilateral set of rules that
effectively eliminate coercive ruleâ€
11â€”and then fought
over whether it could work or not in practice. For many
IR scholars, the verdict is a â€œwinâ€ for international law; it
represents the triumph of reason and rationality, a mechanism to create an enlightened way of handling disputes,
and an end to impunity. Beth Simmons writes that
â€œrather than viewing international law as reinforcing the
patriarchal and other power structures, the evidence
suggests that it works against these structures in sometimes surprising ways.â€
12 Karen Alter says that â€œinternational law embodies principled ideas about best practices
that have been signed off by governments thinking
rationally and outside of the heat of the moment … 99
times out of 100, following international law is the
prudent approach for avoiding provocation, and triggering retaliation, further violence and international instability.â€
13 For Kathryn Sikkink, the advent of courts
with jurisdiction over human rights is evidence of
a â€œjustice cascadeâ€ in world politics.14 Legalization is
commonly assumed to be equivalent to progress.15 The
Haiti case shows otherwise.
We begin with the facts of the cholera epidemic.
Initially the UN denied that its peacekeepers had
anything to do with the cholera in Haiti, but it changed
its position when the physical evidence became undeniable. Rather than accept responsibility the UN relied on
the law as a shield against accountability. We next
chronicle the efforts by Haitian citizens to advance their
claims against the UN, showing how international law
allows the UN to control the terms of its own legal
responsibility to those individuals who seek redress from
it. Although the Haitian citizens have hit a dead end,
there was a road not taken: the Haitian government could
March 2016 | Vol. 14/No. 1 71
have advanced claims on behalf of its citizens. The
reasons why it didnâ€™t, we speculate, have to do with the
rough realities of international politics and dependency;
law is not equally available to all and it protects some
interests over others. Using Judith Shklarâ€™s concept of
â€œlegalismâ€ as a stepping stone, the next section addresses
the productive power of international law as it structures
power, responsibility, and justice in world politics. We
conclude by asking how the Haitian case and the concept
of legalism raise questions regarding how to think about
accountability in world affairs.
Background to an Epidemic
The United Nations has operated peacekeeping missions
in Haiti for two decades. The first was launched in 1994
following the UN-sanctioned, U.S.-led intervention in
Haiti to throw out the military government and install
Bertrand Aristide as president. Despite this â€œstabilizationâ€ mission, Haiti never stabilized and the UN never
left. Its mandate changed with the changing circumstances, and in 2004 the UN launched MINUSTAH, the
UN Stabilization Mission in Haiti, following Aristideâ€™s
MINUSTAH was to support the transitional government in its effort to run an election, integrate with the
political opposition, and create the rule of law and public
order. Then, on January 12, 2010, a devastating earthquake with an epicenter just a few kilometers from
Port-au-Prince killed between 100,000 and 220,000
people. Over three million people were displaced. In
the aftermath of the earthquake, the UN Security
Council reconstituted MINUSTAH with expanded
resources and a new mandate to assist with relief and
In early October 2010, 1,075 troops arrived from
Nepal and occupied a base alongside the MÃ©yÃ¨ tributary
of the Artibonite River. A few days later, people near the
base began falling sick with cholera and within a few week
the country was gripped by a full-scale epidemic. This
was the first outbreak of cholera in Haiti in over a century,
and by July 2011 Haiti had more cholera cases than the
rest of the world combined, with one new infection per
Unlike the earthquakeâ€”self-evidently an act of
natureâ€”the epidemic was immediately understood in
political terms. Public health authorities sought to identify
the source of the contamination and prevent another
outbreak. Widespread suspicion that the epidemic was
connected to the UN peacekeepers generated enormous
anger.17 The UN responded with a twin strategy of
rhetorical reassurance and military force. Its peacekeepers
fought with demonstrators, killing at least one person,
and it issued categorical denials that it was responsible for
the disease.18 In late 2010, Alain Le Roy, the Under
Secretary-General for Peacekeeping Operations said that
[t]here is not a single evidence that they are responsible for this
epidemic. It is a rumor … that has spread out in Haiti. … We
have made a number of tests and all the tests that we have done
are completely negative. There is not a single evidence that this
contingent has brought cholera to Haitiâ€”not at all [sic].19
The UN spokesman for the Department of Peacekeeping Operations, Michel Bonnardeaux, said that â€œ[a]
nyone carrying the relevant strain of the disease in the area
could have introduced bacteria into the river.â€
Edmond Mulet, the Under Secretary-General for
MINUSTAH, said it was â€œreally unfair to accuse the
UN for bringing cholera into Haiti.â€
21 It defended the
quality construction of the MÃ©yÃ¨ facility, insisting it has
been built to â€œconstruction standards of the [U.S.]
Environmental Protection Agency. … consistent with
established international standards.â€
22 It discouraged
further investigation into the source of the outbreak,
blocking epidemiologists from the Haitian Ministry of
Health who sought access to the base, and arguing that
investigations were diverting resources from fighting the
In due time, however, epidemiological studies, environmental surveys, molecular biological analyses, and
eyewitness reports confirmed that the Nepalese peacekeepers started the epidemic.24 An outbreak had occurred
in Nepal, where cholera is endemic, shortly before the
Nepalese soldiers had departed for Haiti; some of them
were infected but asymptomatic, and the UN does not
require cholera screening for peacekeepers. Once in Haiti,
they maintained a sub-standard sanitary system that leaked
raw sewage into the Artibonite river, upon which millions
of people depend for drinking, bathing, and cooking.25
The disease spread from there.
In response to the mounting pressure on the UN, the
Secretary-General appointed an Independent Panel of
Experts to investigate the outbreak, which issued a report
in May 2011, confirming the prevailing theory that the
outbreak was sparked â€œby the contamination of the MÃ©yÃ¨
Tributary System of the Artibonite River with a pathogenic
strain of the current South Asian type Vibrio cholera.â€
Although the report conceded a direct, physical connection between the peacekeepers and the epidemic, it did not
take the next step and pin responsibility on the UN.
Instead, it argued that the
explosive spread [of the disease] was due to several factors,
including the widespread use of river water for washing,
bathing, drinking, and recreation; regular exposure of agricultural workers to irrigation water from the Artibonite River; the
salinity gradient of the Artibonite River Delta, which provided
optimal environmental conditions for rapid proliferation of
Vibrio cholerae; the lack of immunity of the Haitian population to
cholera; the poor water and sanitation conditions in Haiti;. …
These deficiencies, coupled with conducive environmental and
epidemiological conditions, allowed the spread of the Vibrio
cholerae organism in the environment, from which a large
number of people became infected.27
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Articles | How to Get Away with Cholera
Given this multitude of causes, the Report concluded
[t]he introduction of this cholera strain as a result of environmental contamination with feces could not have been the source
of such an outbreak without simultaneous water and sanitation
and health care system deficiencies … The Haiti cholera
outbreak was caused by the confluence of circumstances as
described above, and was not the fault of, or deliberate action of,
a group or individual.28
In short, the report concluded that the UN had
contributed a necessary but not sufficient link in the
sequence of the epidemic. According to Anthony Banbury,
the UN Assistant Secretary-General for Field Support,
â€œ[w]e donâ€™t think the cholera outbreak is attributable to any
29 In its judgment, because the peacekeepers
were one among many factors that contributed to the
outcome, the UN itself should not be held responsible. The
complexity of â€œresponsibilityâ€ was laid bare.
The Law of Immunity
The UNâ€™s role in the epidemic is well known and generally
undisputed. Much more fraught are the implications of
this roleâ€”how should one think about the responsibility
of the UN for the suffering of the Haitian people? Can the
UN be held accountable, and if so for what, and in what
venue? Is the UN legally liable for anything? The answers
turn on the legal advantages international law provides for
the UN and the choices made by UN officials. In other
words, this is a story about the structure of international
law and the decision by UN officials to use the law to
shield themselves from the demands for justice by the
victims. We begin the story with the attempt by Haitian
citizens to have their claims heard first through private
petitions to the UN and then with lawsuits against the
organization in U.S. courts, explaining how the legal rules
blocked their path and considering why the Haitian
government failed to help on their behalf.
Haitian citizens and their advocates first requested
compensation directly from the UN, submitting what are
known as â€œpetitions for relief.â€ Lawyers representing the
victims identified 5,000 individuals who had suffered
losses in the epidemic and listed them as the claimants
in the petition, which they presented to the offices of the
UN in New York and in Haiti in 2011.30 The petitioners
claimed that they suffered personal damage from UN
actions, where those actions were unrelated to the UNâ€™s
official mandate and did not arise from operational
necessity. They asserted that the cholera epidemic was
a product of â€œgross negligence, recklessness, and deliberate
indifference for the lives of Haitians,â€ amounting to
a violation of various international human rights instruments.31 As remedy, they demanded that the UN acknowledge responsibility for the epidemic, compensate the
victims, and invest in public health and water treatment
solutions in Haiti. They based their claims on the theory
that the UN is in general responsible for the consequences
of its actions, a principle that has been affirmed in recent
years by the Secretary-General and the International Court
of Justice, among others.32
The UN is frequently presented with requests for
compensation from individuals who say they have been
injured by its operations or officials. These include for
drunk driving accidents, damage to property, and more.33
In practice, when responding to such claims, the UN has
absolute discretion over whether to consider them and
how. The process is entirely ad hoc and often highly
informal. A General Assembly resolution in 1998 sought
to add some formal terms to the process by setting limits
on the size of financial payouts and a bar against paying for
â€œnon-economic loss, including pain, suffering or moral
anguish, and against punitive or moral damages.â€
However, it did not change the basic arrangement by
which the UN has the authority to decide for itself whether
to hear a claim. As far as is known, the organization has
only ever accepted claims presented by individuals, never
a group claim such as the Haiti case.
The UNâ€™s discretion over private claims is tempered by
the requirement that the UN should create alternative
extrajudicial procedures to deal with them. This is included in the Convention on the Privileges and Immunities of the United Nations (CPIUN), which states that
[t]he United Nations shall make provisions for the appropriate
modes of settlement of: a) disputes arising out of contracts or
disputes of a private law character to which the United Nations
in a party; b) disputes involving any official of the United
Nations who by reason of his official position enjoys immunity,
if immunity has not been waived by the Secretary-General.35
A similar requirement is included in the Status of
Forces Agreement (SOFA) that governs the legal relations
between the MINUSTA and the government of Haiti. It
any dispute or claim of a private-law character, not arising from
the operational necessity of MINUSTAH, to which MINUSTAH or any member thereof is a party and over which the
courts of Haiti do not have jurisdiction because of any provision
of the present Agreement shall be settled by a standing claims
commission to be established for that purpose.36
However, the UN has never created such a body,
either for Haiti or for any other peace operation,37 and so
the petitioners found themselves with no institutional
channel by which to submit their claims. They therefore
directed them to the UN headquarters in New York and to
the MINUSTA office in Port-au-Prince.
After thirteen months of silence, the UN rejected the
claims. In a brief letter from the Under-Secretary General
for Legal Affairs, the UN explained that it was unable to
respond to the substance of the petitions because they
â€œwould necessarily include a review of political and policy
matters … [and so] these claims are not receivable
March 2016 | Vol. 14/No. 1 73
pursuant to Section 29 of the Convention on the Privileges
and Immunities of the United Nations.â€
38 This makes
a distinction between harms caused by the UN and its
agents in the course of their public functions and harms
that come about unrelated to those functions. The former,
it says, are not actionable but the latter are. In practice, the
UNâ€™s decision to refuse the petitions was decisive and the
matter ended thereâ€”there is no institutional procedure by
which such a refusal can be challenged and no external
body to which claimants can appeal.
As a question of law, however, it leaves unaddressed
whether the UN was right in treating the cholera
epidemic as a â€œpolitical and policyâ€ matter. The issue
rests in part on the distinction between the public and
private obligations of international organizations. States
and international organizations have international legal
personality, which confers on them certain rights and
obligations toward other international legal persons under
public international law. These rights include the capacity
to bring legal claims against actors who harm their interests
and the obligations include the responsibility to account
for such harms of their own. The legal personality of the
United Nations is established by the UN Charter and the
CPIUN and was affirmed by the International Court of
Justice in the Reparations for Injuries opinion.
The UN can take on legal obligations toward individual
persons or firms, as when it signs a lease for office space with
a private landlord. In these cases, the UN is acting in
a private capacity. If it fails to fulfill the contract it may be
liable for the losses suffered by the other party. This domain
is regulated by the local legal system where the transaction
takes place and by the body of private international law that
resolves conflicts among jurisdictions. This is separate from
the UNâ€™s public international obligations, which it owes to
other entities with international legal personality. The two
domains become intermixed in the case of the UN because
public international law grants the UN immunity from
domestic legal actionsâ€”a point critical to the story. It also
means that the UNâ€™s commercial contracts always include
mandatory arbitration procedures to make up for the fact that
the parties are precluded from using domestic courts to
resolve any disputes.
In this distinction between public international law and
private transactions, the UNâ€™s position appears to be that the
epidemic came about as an incidental consequence of the
peace operation and therefore relates to the formal, publicpolitical authority of the organization. Its consequences are
therefore not reviewable by a private-claims process. As the
cholera victims are private individuals without a legal relationship to the UNâ€”they are neither international legal persons
nor parties to a contract with the UNâ€”they have no standing
to address their concerns with the organization. This logic has
been used before by the United Nations, including to decide
that the residents of a UN camp in Kosovo should not be
compensated for the lead poisoning they suffered there in the
2000s.39 No processes exist for appealing or challenging
decisions on these issues, and so the UNâ€™s word is decisive.
The cholera victimsâ€™ petitions ended there.
With the UNâ€™s door firmly closed from the inside,
advocates for the cholera victims turned to the courts to
advance their cause. They filed lawsuits against the
United Nations and its senior leadership in U.S. federal
courts. Three cases have proceeded and they are similar in
substance and jurisdiction:40 they have as Plaintiffs a class
of U.S. or Haitian citizens who suffered in the epidemic
and as Defendants the UN and its Secretary-General, as
well as MINUSTAH and its chief. The substantive claim
also is the same across the cases: that the â€œoutbreak
resulted from the negligent, reckless, and tortious conduct of the Defendants.â€
41 On jurisdiction, the plaintiffs
claim that American courts have jurisdiction over the UN
in Haiti because the UN has its headquarters in the
United States and the individuals named as defendants are
residents of the United States. Substantively, they argue
that the UN failed in its legal obligation to create
a standing claims commission to receive the private
petitions of cholera victims and the court should therefore force the UN to respond to the petitions or impose
a solution itself.
Despite some early procedural victories for the victims, in
January 2015, Judge J. Paul Oetken rejected the first of the
suits, stating directly that â€œ[t]he U.N. is immune from suit
unless it expressly waives its immunity.â€
42 This outcome was
not unexpected. While the terms of UN immunity are
debated by scholars,43 international bodies and courts around
the world accept the immunity of the organization and
dismiss legal claims against it. According to the Charter, â€œthe
Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary
for the fulfillment of its purposesâ€ (Art. 105). The CPIUN
(Â§3) states that the UN and its delegates are immune from
â€œevery form of legal process except insofar as in any particular
case it has expressly waived its immunityâ€; UN officials shall
(among other things) â€œbe immune from legal process in
respect of words spoken or written and all acts performed by
them in their official capacityâ€ (Â§18(a)). The UNâ€™s premises
are immune from â€œsearch, requisition, confiscation etc.â€ The
UN is also exempt from taxes, customs duties, and restrictions on imports and exports. These immunities are described in the Charter as â€œfunctional,â€ that is, they exist in
order to enable the UN to accomplish its public functions. In
this spirit, the European Court of Human Rights (ECHR)
called immunity â€œa long-standing practice established in the
interest of the good working of these organizations.â€
Yet national courts have followed the more expansive
language of the CPIUN and interpreted the UNâ€™s
immunity in the broadest of terms. Wouters and Schmitt
note that â€œin the near-totality of cases national courts
scrupulously stick to the UNâ€™s immunity.â€
was the key reason why the ECHR, and the Dutch
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Articles | How to Get Away with Cholera
Supreme Court before it, rejected a suit by the Mothers of
Srebrenica group claiming that the UN failed in its
responsibilities around the Srebrenica massacres of
1995.46 Specifically, the courts ruled that the Netherlandsâ€™
obligation to respect UN immunity took precedence over
its obligation to guarantee individualsâ€™ right of access to
a court.47 The U.S. government and courts have taken
a similar position. American courts consistently reject suits
against the UN, affirming the UNâ€™s immunity from legal
action, based on the CPIUN or the UN Charter or both.48
The State Department also advises courts that it is the U.S.
governmentâ€™s view that â€œunder the plain language of the
UN General Convention on Privileges and Immunities …
the United Nations is absolutely immune from all legal
process, including suit, in the absence of an express waiver
by the UN of its own immunity.â€
In the Haiti cases, the plaintiffs made a specific claim
that sought to undermine UN immunity. They argued
that the UNâ€™s failure to establish the standing claims
commission was a violation of its obligation under the
CPIUN and Haiti SOFA, for which the appropriate
remedy was to strip the UN immunity as granted by those
treaties. In other words, they posited that the UNâ€™s
immunity was contingent on it providing extra-judicial
mechanisms through which private actors could bring
claims. They suggested that to uphold UNâ€™s immunity
without private commissions would be to insulate the
UN from any legal accountability for its actions. This
reading of the law of immunity would represent a significant innovation in treaty interpretation and would carry
major implications for the relation between individuals
and UN peace operations.
In the end, the plaintiffs were rebuffed and the UNâ€™s
immunity from domestic legal action was upheld.50As a result,
the Haiti cholera victims have reached a legal dead-end: they
have no access directly to the UN and they cannot make use of
domestic courts to press the issue on their behalf. The United
Nations appears to have no legal obligation to respond to those
who say they have been harmed by its negligence. We turn
now to considering the implications of this end-pointâ€”we
look at the role of the government of Haiti, which has
maintained a conspicuous silence in the controversy, and at the
political consequences of international legalism.
The Road Not Taken
Where was the Haitian government during this ordeal? In
classical international law, states are expected to act on
behalf of their citizens when they suffer harm or loss in an
international context. An individual who is harmed by an
IO has been expected to press their claims through their
national government. This is known as diplomatic
espousal or diplomatic protection. International tribunals
have invested a great deal of energy to resolve ambiguities
regarding dual citizenship and other problems in the
practice of diplomatic protection.51 Had it chosen to take
them on, the government of Haiti had several means to
advocate for its citizens in relation to the UN.
The most direct involves taking advantage of the
procedures for establishing the claims commission under
the UN-Haiti SOFA. That treaty includes a provision by
which either party could create the commission unilaterally in the following way. The commission is to be
comprised by three members: one appointed by the UN
Secretary-General, one by the Haitian government, and
a chairperson appointed by joint agreement. Either the
UN or Haiti can initiate the appointments and if they
cannot agree on a chairperson within thirty days of the
appointment of the first commissioner, either party can
request the President of the International Court of Justice
to intervene and make the appointment. The commission
would then have a quorum despite the opposition of one
party. In theory, therefore, â€œthe Haitian Government …
holds the power to provide redress to its people under the
52 even in the face of UN unwillingness.
Haiti could also make use of existing international legal
or arbitral institutions. If it wished to challenge the UNâ€™s
determination that the petitions are â€œnot receivableâ€ it could
invoke the arbitration procedures in either the SOFA or the
CPIUN. These could lead to international legal review, either
by the International Court of Justice (ICJ) (CPIUN Â§30) or
an arbitration tribunal (SOFA Â¶57 & 58) and force the UN
to provide further legal justification for its decision. The
Haitian government also could use its membership in the
UN and other international organizations to press the issue,
including the UN General Assembly, ECOSOC, and the
WHO, all of which have clear substantive jurisdiction over
public health, as well as the UN Security Council if it could
be persuaded that the issue relates to the Security Councilâ€™s
mandate on â€œinternational peace and security.â€ Haiti could
request that one of these organizations request an advisory
opinion from the ICJ regarding the interpretation of the
treaty and other legal obligations in the issue. It could also use
extra-juridical forms of protest, such as publicly naming and
shaming the UN Secretariat and the Secretary-General.
Yet the Haitian government left all of these options on
the table. It declined to create compensation and arbitration
panels. It elected not to endorse or participate in any of the
private claims or lawsuits. It has been remarkably silent on
the choices of the UN and the Secretary-General. In one of
the few statements by the Haitian government, Prime
Minister Laurent Lamothe called on the UN to take â€œmoral
responsibilityâ€ for the epidemic53â€”notably avoiding the
issue of its legal obligations.
What explains the Haitian governmentâ€™s unwillingness
to take action? It has offered no public statement on the
matter, but one likely reason is Haitiâ€™s weakness as
a domestic state and its condition of dependence in global
politics, economics, and history.54 Haiti gained its independence in 1804 after a successful slave revolt;
however, the end of slavery did not mark the end of
March 2016 | Vol. 14/No. 1 75
dependence. The explanation for Haitiâ€™s chronic state of
underdevelopment is rooted in various factors, including
a harsh environment and a series of kleptochratic dictatorships, but these domestic factors were made possible and
supported by international actors, beginning with imperial
control and continuing with a more well-meaning international community.55 Throughout the nineteenth
century, France forced Haiti to pay compensation to the
former slave owners for their â€œlossesâ€ (fully repaid only in
1947).56 It eventually paid 150 million francs plus interest
â€”or roughly $21 billion in todayâ€™s dollars. Paying off this
debt would take over 80 years and require Haiti to take out
international loans, launching a cycle of borrowing and debt
in which the country remained mired into the twenty-first
century.57 While repaying Haitiâ€™s â€œdebt,â€ Haitian dictators
borrowed more money from states and international
financial institutions; such borrowing was presented as
necessary for public projects, but it mainly went to lining
their own pockets. In its first century of independence, this
political instability allowed lots of different leaders to put
their hands in the till. Between 1843 and 1915 the country
had twenty-two presidents; seventeen were deposed, and
eleven within a year of taking office.
In 1915 the United States invaded Haiti, ostensibly
because of its concern with German influence but mainly
because it wanted to protect its business interests.58
When the Marines withdrew in 1934, they were replaced
by the Haitian military which remained the de facto power
behind the throne until 1957.59 For instance, the United
States controlled Haitiâ€™s finances, formally, until 1947.
For the next three decades, Haiti was ruled by Francois
â€œPapa Docâ€ and Jean-Claude â€œBaby Docâ€ Duvalier,
a father-son pair with the dubious distinction of being
â€œtwo of the worst Latin American dictators ever.â€
1985â€“1986, a series of protests culminated in the Duvalier
regimeâ€™s overthrow and the Reagan administration
brokered his exile to France. In 1990 Haiti voted JeanBertrand Aristide for president, who survived an entire
year before being overthrown by a coup. After several years
of domestic turmoil in 1994 a U.S.-led UN operation
restored Aristide to power and introduced a new chapter in
For the past two decades, the Haitian state has existed
in a relationship of extreme dependency on the UN in
specific and a flotilla of international actors in general.
Without this external support, Haitiâ€™s coffers would be
nearly empty and it would be unable to provide even the
barest of public services, including security, stability, and
public healthâ€”and now, with some irony, cholera eradication. Haiti is not only dependent on external financial
assistance, it also is dependent on thousands of NGOs for
the delivery of basic services; this â€œNGO-izationâ€ of Haiti
has furthered hollowed out an already weak state.61
The countryâ€™s financial dependence on foreign actors
provides a powerful explanation for why the government
would not want to challenge the UN on its responsibility for
the cholera. If it did successfully confront the UN, there is
always the chance it would receive an acceptable settlement.
More likely, though, are several other reactions that might
leave Haiti worse off than before. The UN might decide to
achieve â€œbudget neutralityâ€ by reducing whatever it spent in
its official assistance from the total compensation it was forced
to pay. Or, the UN might choose to withdraw its operations
altogether, perhaps out of fear that it might now be vulnerable
to a rash of other kinds of claims. Additionally, if the Haitian
government brought legal action against the UN, the UN
might, in turn, argue that the government itself assumed some
risk by inviting the peacekeepersâ€”and therefore shares
some of the liability.62 And if these were not reasons
enough, there was also the possibility that the Haitian
government might be reluctant to partner with and
legitimate civil society organizations that have also been at
the forefront of efforts to challenge the governmentâ€™s record
on human rights, corruption, and mismanagement.63 In
general, a weak state is unlikely to bite the hand that
meagerly feeds it. A result of this dependence is that the
Haitian people are without the state-based representation
on which classical international law depends and without
institutional channels by which they might represent their
own interests. The failure of both the private claims and the
public lawsuits around the cholera epidemic follows directly
from the fact that in the state-centric world of public
international organizations, private agents are legally disempowered. The international legal system was constructed
primarily as a system to govern the relations of states inter se,
that is to say as a system of public law, made by states and for
states, with IOs incorporated as public actors alongside
states. In this classical system, private citizens with grievances were assumed to be covered by their governments
acting on their behalf. In the Haiti case, the distribution of
public power and liability in the international system fatally
impairs individualsâ€™ ability to hold the UN legally accountable. The UN is able to simultaneously declare its fidelity to
its responsibilities under international law and also decide
when and how it can be held responsible.
Legalism and the Limits of
Accountability and Responsibility
The UN has earned a great deal of negative publicity for
its legalistic response to the cholera epidemic. By refusing
to apologize or accept a common-sense understanding of
its causal contribution to the crisis, and by asserting its
legal privileges to defeat all claims, the UN has generated
a widespread perception that its main concern is with
protecting its power rather than helping the people it is
ostensibly meant to serve. But whatever failings one
might identify in the UNâ€™s behavior, compliance with
international law is not among them. In Haiti, the UN
maintains that it has acted according to its legal obligations
and its position is supported by powerful legal and political
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institutions. Accordingly, the UN Secretary-General is
probably correct when he observe that the organization is
â€œconsistently integrating rule of law … issues into the
strategic and operational planning of new peace operationsâ€
64â€”even while it is refusing to receive the cholera
From the standpoint of contemporary scholarship on
international law in IR, this possibility generates discomfort for two principal reasons. The first owes to its
emphasis on compliance for determining whether or
not law â€œmatters.â€
65 If measured from the standpoint of
compliance, then the UNâ€™s role in Haiti might count as
a success; if measured from the standpoint of â€œcommon
senseâ€ it is a failure. The second, more general, source of
discomfort owes to the normative bias in the literature on
legalization. Legalization is widely celebrated by scholars,
activists, and many states on the grounds that it helps to
equalize unequal power relations between parties in
a dispute, helps to ensure due process, helps to ensure
elements of fairness and justice, and forces even the
powerful to obey universal rules and laws. In this
formulation, the natural alternatives to law are coercion
and domination. However, the Haiti case suggests that law
may in fact be an accomplice to these things. In other
words, there is power in law, and part of this power is
associated with maintaining existing inequalities.
Specifically, in this section we examine the productive
power of law in three substantive areas. First, the
presumption that international law provides a neutral
framework for resolving disputes rests on an untenable
separation between â€œlegalâ€ and â€œpolitical,â€ and creates
a form of anti-politics.66 Second, by hiding the politics of
international law, the legalization of the Haiti dispute
reinforces a power hierarchy in which the decisions and
desires of the UN and some strong states have authority
over the people and government of Haiti.67 Finally,
legalism forecloses non-legal modes of responsibility and
accountability and contributes to a version of international
ethics in which the suffering of the cholera victims is less
significant than the goal of preserving the UN and its power.
It shows the power of law, beyond the power in law.
When the Haiti-cholera issue is treated as a legal question, one to be answered with reference to the UNâ€™s legal
obligations and rights relative to others, the political
content of the dispute, as well as the political history of
the law, moves into the background. This is a danger
warned against by Judith Shklar (and others), who
suggested that the artificial distinction between legal and
political issues can easily be reified such that legal processes
appear as politically neutral. Shklar says â€œlaw is endowed
with its own discrete, integral history, its own â€˜scienceâ€™
and its own values, which are treated as a single â€˜blockâ€™
sealed off from general social history, from general social
theory, from politics, and from morality.â€
68 It encourages
lawyers, legal theorists, and others to see law as taking the
place of politics, as a natural, apolitical, fair-minded,
platform to solve social illsâ€”what Samuel Moyn calls
â€œthe noble lie.â€
69 Shklar call this â€œlegalism,â€ the â€œattitude
that holds moral conduct to be a matter of rule following,
and moral relationships to consist of duties and rights
determined by rules.â€
70 It leads to what Bonnie Honig
called the displacement of politics: that is, the transformation of arguments about what should be done,
how life should be lived, etc. into merely the â€œjuridical,
administrative, or regulative tasksâ€ associated with fitting
current behavior into existing legal categories.71
The legalization of responsibility entails a doublemovement, as Scott Veitch has pointed out: it simultaneously specifies the harms for which an agent is
responsible and by implication also defines those for which
it is not responsible. Veitch calls these â€œzones of responsibilityâ€ and â€œzones of irresponsibilityâ€ of an actor.72
Housing law, for instance, specifies what a landlord is
responsible for and what she is not; labor law does the same
for employers; the laws of war determine when a killing is
responsible under criminal law or not. At a global level,
international law defines responsibility and irresponsibility
for the United Nations and other actors. The practical
content of these zones of responsibility and irresponsibility
is decided by the specific language of the law and by the
agents who are authorized to interpret it. In the UNâ€™s case, it
is authorized to decide for itself when (and whether) it will
consider the claims presented to it by individuals or waive
the immunity of its officials. It is therefore no surprise that it
has used that authority to shield itself from responsibility.
By refusing to consider the petitionersâ€™ claims while also
maintaining its immunity, the UN has created for itself
a model of legal responsibility by which it is in principle
accountable for the consequences of its actions but in
practice not responsible for these particular consequences. It
uses legal concepts and categories to write itself a get-out-ofjail-free card in international politics. This shapes how
public officials define their responsibility relative to the
organization and to their private morality. As Hannah
Arendt and others have suggested, bureaucracies depend on
officials who act according to the logic of the institution and
set aside their private moral judgments.73 If the law tells
them that they are not responsible for some consequences,
then from an institutional perspective they can live with
those consequences without concern or guilt, regardless of
what their feelings might be outside of the organizational
In Haiti, legalization has produced a specific political
outcomeâ€”it protected the UN and its authority and
resources from any claim presented by the cholera victims.
â€œLaw as anti-politicsâ€ is on display to the extent that the
UNâ€™s legal responsibility is allowed to exhaust its
responsibility tout court. The productive power of law is
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at work here, defining agents and their capacities, shaping
what counts as a problem and the parameters in which
problems can be addressed, and determining who owes
what to whom.74 These may sometimes act as constraints
on the powerful and give the weak a position from which
to advocate, but the opposite results are also possibleâ€”
indeed, given that law is generally made by the powerful, it
may be more realistic to expect that it will protect their
interests in precisely the way that international law
protects the United Nations. The rational-legal attributes
of legal processes, including formal impartially and apparent objectivity, obscure the politics and power that make it
possible and that follow from it.75
Legalization should be seen in its political context. It both
reflects and produces particular distributions of power.
The difference in power between the cholera victims and
the UN is enhanced by the turn to law as a means to
address their losses. This is a consequence of the
disempowerment of individuals in public international
law and also the particular weakness of Haiti in the
system of sovereign states.
International law provides absolute protection for the
UN against the claims made by individuals. The immunity against private claims that the UN enjoys is founded
on the theory that this is necessary if it is to be expected
to perform its functions. This anticipates that the
organization will do damage to the interests of individuals
in the course of its duties, and it gives protection in
advance against their claims. The international legalpolitical system makes it impossible for individuals to
address international bodies. The outcome in the UNHaiti situation is not an accident or an aberrationâ€”it is
an example of the system working as planned.
Legally speaking, the United Nations is beholden to
Haiti and other states where it operates but its structural
advantages in law and politics means that it can exercise
power in weak states without legal liability. More
broadly, therefore, the case of Haiti points to a disjuncture
between the theory and practice of sovereignty as a legal
institution. The theory of sovereignty suggests that all
states are created equal and are afforded the same rights,
responsibilities, and protections; Haiti has the same rights
and obligations as any other sovereign state. The principle
of non-interference applies equally to the powerful and
the powerlessâ€”and the latter may well be especially strong
defenders of a legalized world precisely because they have
no other means of defense.76 Yet having rights and being
able to use them are two separate matters; for a highly
dependent Haiti, it is one thing to have the right to press
claims against the UN and quite another to be in a position
where it makes sense to invoke it.
The theory and practice of sovereignty is constituted
by discourses of civilization which, among other effects,
allocate varying degrees of protection from outside
interferences.77 Ideas such as civilization, empire, good
governance, humanity, and more have provided a shifting
justificatory language with which powerful states permit
themselves to intervene in the rest.78 As founding members of the modern-states system with sovereignty at its
core, Western states had considerable influence over who
was and was not civilized and who was and was not eligible
for admission to the privileges of non-intervention. Haitiâ€™s
position in this hierarchy has been consistently subordinate since the eighteenth century. The principle of
non-interference has had a different meaning for Haiti,
one that authorized external interference and intermittent
occupations by foreign powers, as well as permitted
domestic leaders to pocket foreign money for themselves
and leave the debt to the Haitian people.
The pervasive influence of legalism in international
relations leads scholars to look to international law to
answer substantive questions. This is evident whenever
legal resources and arguments are used to dispose of
controversies regarding what should or shouldnâ€™t be done
in world politics. Robin West notes this tendency in public
debates over the U.S. invasion of Iraq, where the legitimacy or wisdom of the invasion was treated as a question
that could be answered by a close reading of international
law.79 Andrew Trevor Williams sees a similar pattern in
the legalization of human rights qua â€œrights,â€ where â€œlaw
… provides a focal point for examining the legitimacy of
human rights determinations in relation to suffering. From
international norm articulation to judicial review of state
practices, law and the legal process have acquired a position
of pre-eminence in judging whether human rights have
any purchase in a given context.â€
80 Before attacking
Abbotabad to kill Osama bin Laden in 2011, a very senior
group in the U.S. government wrote five secret memos to
justify the legality of the operation, on the assumption that
without legal justification the plan would much more
difficult, perhaps impossible, to execute.81 The power of
legality to legitimate policy is widespread and it encompasses both the faith in law as an ordering power that
Shklar criticized and lawâ€™s availability as an instrument for
The tendency to equate legality with wise policy is
common in international relations scholarship, particularly
among liberal internationalists; legality is taken as
evidence of wisdom or justice or ethics in a policy.83
For Shklar, this is a sign that legalism has come to shape
discourses of justice, ethics, and morality, and it should
be resisted as it leads to the subordination of ethics and
morality to the primary concern with legality and
liability. Similarly, Hannah Arendt sought to preserve
a political and moral notion of responsibility distinct
from the legal concept of guilt and to ensure that legal
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reasoning and institutions do not supplant ethical
judgment. She argued against seeing responsibility as
a quality that can be determined by law. Whereas â€œguiltâ€
signifies a violation of law, â€œresponsibilityâ€ applies to
violations of the obligations that one owes to the
community of which one is a member.84 Accordingly,
complying with an immoral law (e.g., â€œfollowing
ordersâ€) might give an actor a legal justification for
their action but it cannot absolve one of responsibility
for its effects. Peter Cane concludes from this that
responsibility might not be â€œa legal concept at all.
Liability comes much more readily to the legal mind
than â€˜responsibilityâ€™ … . Thus we tend to speak of
â€˜moral responsibilityâ€™ and â€˜legal liability.â€™â€85 Whereas
liability refers to the â€œformal, institutionalized, imposts,
sanctions, and penalties, which are characteristics of law
and legal systems,â€ morality refers to more generalized
and constitutive rules of conduct and thus are â€œprior to
and independent of social practices in general, and of
legal practices in particular.86
For Cane, Arendt, Shklar, and others, legal responsibility is narrower than responsibility understood in moral,
political, or other terms. The gap between legal liability
and political responsibility can be felt in the outrage of
the Haiti activists who find themselves blocked by the
institutions of law, international and domestic. It is a gap
that Joel Feinberg describes as inherent in the legalization
of human affairsâ€”he says that legal processes often leave
people with the â€œstubborn feeling … even after legal
responsibility has been decided that there is still a problem
… left over; namely, is the defendant really responsible
(as opposed to â€˜responsible in lawâ€™) for the harm.â€
In light of the cholera crisis and other issues, a series of
potential changes to the UNâ€™s legal obligations are either
underway or have been suggested.88 There is pressure on
the UN to establish private claims commissions for
peacekeeping operations, or to find other ways to give
standing to individuals along the lines that are increasingly
common in other international organizations and some
international courts.89 Others have suggested that the UN
should at a minimum make cholera testing mandatory for
peacekeeping.90 The activists also hope that an admission
of responsibility by the UN over the epidemic would set
a precedent, making future claims easierâ€”this is likely
precisely the reason that the UN resists it, as well as resists
even token-sized cash payouts. Through these processes or
others the UN in future might not enjoy such impermeable
legal immunity as it does today. This may well cause the
UN to take more seriously the potential damages its
missions might cause and internalize the legal and financial
risks for new operations. This would be a powerful incentive
to exercise more oversight over peacekeeping missions,
either (or both) improving these operations or discouraging
them altogether. The consequence might be a world with
less UN peacekeepingâ€”and this might be better or worse
depending on oneâ€™s interpretation of the evidence regarding
the impact of UN peacekeeping.
Whether increasing UN liability is an improvement
over the current state of affairs is impossible to say.
Shklar, Arendt and the others argue specifically that
ethical, political, and normative questions (such as
whether removing UN immunity makes the world
a better place) cannot be answered using legal resources.
Their point is that the legalist mind-set permits law to
determine ethical questions, and that this is a mistake.
They seek instead to differentiate between legal logic and
ethical considerations and to point out how the resources
and institutions that determine the legality of an action
are not sufficient or even necessarily appropriate to
determine its politics or its morality. Therefore, pointing
out that legalization has disempowering effects on Haitians with cholera, as we have done earlier, is not
sufficient to sustain the inference that the opposite would
be normatively superiorâ€”ethics and law are separate
conversations, with separate logics and resources.
Conclusion: Law and the Opposite of
The Haiti case highlights the radical disjuncture between
the preventable harms of the cholera epidemic and the
ability of the harmed to seek redress. International law
ensures that those who caused the epidemic are insulated
from legal accountability for its costs. This result raises
questions both about the moral and political value of
particular pieces of law (i.e. UN immunity), and also
more generally about the moral and political effects of
legalization as a device in global governance.
One constructive way to channel the outrage that
results from the case is to seek to change the law that
impedes accountability. And in fact over the last several
decades there have been slow but steady increase in
individualsâ€™ access to international courts and tribunals.91
Individuals are increasingly empowered by domestic and
international courts to bring claims against states, multinational corporations, and other kinds of public and
private entities. While the parameters of those legal
relations are a source of great controversy, the growth of
direct access by individuals to international courts can (in
principle at least) give people tools to seek redress against
international organizations.92 In another approach, the
2011 Draft Articles on the Responsibility of International
Organizations allows IOs to bring claims against one
another. However, the proposed treaty contains no judicial
mechanism and only applies to â€œinternationally wrongful
acts,â€ which presumes a prior finding that the conduct in
question was a violation of international law and so
narrows its scope of application significantly. Third, the
UN has the power to establish standing claims commissions, ensuring that they are available if needed. It could
easily accept and implement the requirement that all its
March 2016 | Vol. 14/No. 1 79
operations should have an office to receive and consider
private claims. It does not have to wait until something
goes wrong.93 By inviting private claims through such an
office, the UN would no doubt encounter enormous
challenges in sorting and deciding on them but it would at
the same time redress some of the political imbalance
between the UN and local people. A change in the UNâ€™s
legal architecture could empower those who suffer harms
in its operations.
The call to make the UN more responsible for its
harms is related to the broader demand for greater
accountability in global governance, driven by the belief
that more accountability could bolster the legitimacy of
global institutions, improve their effectiveness and learning capacity, reduce slack and slippage, and ensure that
these increasingly powerful organizations are held
responsible for the harms they cause. Notwithstanding
the broad demand for greater accountability, there is no
consensus definition on what it means, or even whether
standard definitions that are developed for the domestic
realm are suitable for an international realm where there
is no legal public, no existing social contract, and often no
clear delineation of the rights and responsibilities of
global actors.94 Still, the demand for accountability has
rushed past these academic concerns to focus on theâ€œhowâ€
of accountability in global governanceâ€”what is the most
practical and effective mechanism for holding accountable
large complex, international organizations such as the UN.
Some of these forms of accountability depend on the law,
but others look beyond the law, as Shklar suggested.
There are those who demand a rather simple form of
accountability: the UN should simply acknowledge its
role and own the harms it has caused. For some Haitian
activists, this is the bare minimal form of accountability
and would deliver some modicum of justice. In the case
of Haiti the UN has been notably reluctant to make such
statements and the Secretary-General has issued no
statement of apology. Others propose a form of reputational accountability. â€œNaming and shamingâ€ works in
this vein, playing on the hope that publicizing UNâ€™s failure
will cause it to clean up its actâ€”indeed the lawsuits might
be seen as part of this strategy by forcing the UN to make
uncomfortable public invocations of its blanket immunity.
Both sides of the dispute treat the UNâ€™s legitimacy and
public reputation as political assets with real value, worth
undermining by the one side and defending by the other.
Such fights over the politics of reputation and legitimacy
are outside of the legalist framework and show that greater
accountability can come not by changing the law but also
from putting law in its place relative to other social forces.
Still, the UN appears to have a great capacity to withstand
this shaming, and in this regard it is telling that UN
peacekeepers are still not routinely screened for cholera.95
A key demand of the activists is for financial compensation by the UN to the cholera victims. This invokes the
principle that corporate actors should compensate people
who have suffered a financial loss due to their negligence
and, it is said, will give the UN a strong incentive to avoid
such problems in the future.
However, if the UN were forced to provide pay the
people it has harmed, a range of unintended consequences might follow. The â€œpetitions for reliefâ€ sought
compensation of $50,000 per illness and $100,000 per
death.96 Based on the number of victims, the scale of UN
liability might amount to $32 billionâ€”four times the
UNâ€™s total annual peacekeeping budget and 72 times
MINUSTAHâ€™s annual budget.97 These costs might cripple the UN and drastically limit the conditions under which
it is prepared to undertake peacekeeping or other assistance
missions. If the payout came directly from the UNâ€™s budget
it would bankrupt the organization. If it came from the
peacekeeping budget, which comes from separate voluntary
contributions by governments, it would require immediate
payments by the troop-contributing countries. Regardless
of the budgetary source, the UN would presumably have to
dramatically reduce its operations. The MINUSTAH
operation might end, along with other peace operations
and any number of other UN projects. It would also set
a precedent for other claims and the risks would make all
future operations much more expensive.
One effect of such a development would be to force
the Security Council to think more clearly about the
financial risks associated with its liability for harms. This
could be beneficial if it meant a more critical assessment
of its operations and a more careful mode of proceeding.
The Council might reasonably aim to reduce its exposure
by passing the costs along to the troop-contributing
countries. This points to a complicating feature of UN
accountability: the UN is often comprised of states and
other kinds of actors over whom the UN has little
effective authority. This is manifest in the UNâ€™s difficulties in punishing peacekeeping soldiers for human rights
violations and sexual violenceâ€”it is constrained by the fact
that the contributing states, and not the UN, have
disciplinary power over their troops. The UN cannot
prosecute these soldiers, though it can send them back to
their home countries and it is considering refusing new
troops from countries that do not investigate and punish
offenders.98 If the UN asked troop-contributing countries
to accept the financial risks of peacekeeper misbehavior, it
would essentially be asking relatively poor countries to
carry the financial costs of outcomes like the cholera
epidemic. Many troop-contributing countries are almost
as impoverished as the countries in which they serve.
Compared to the UN, Nepal is in a weak position to pay
the costs of cholera.99 Given the knock-on effects of
accepting financial obligations over cholera, it is clear why
neither UN officials nor nation-states are eager for the
organization to give up its immunity, regardless of the
costs to its reputation.
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The case of Haiti shows how legalization can shape
international politics. It provides reason to doubt the
liberal-internationalist tendency see law as an escape from
politics and power. Instead, it tells a cautionary tale
regarding the political effects of law, anticipated by Shklar
some 50 years ago. Writing as a liberal who saw the
enduring value of laws that safeguarded the rights of
minorities and vulnerable populations, Shklar had many
good things to say about liberalism and, its kindred spirit,
law. Law can constrain intolerant politics. But she
worried that when law comes to be seen as an independent mechanism of governance, and as superior
to other forms judgment, then the ideology of legalism
prevents â€œits exponents from recognizing both the
strengths and weaknesses of law and legal procedures in
a complex social world.â€
100 She offered this warning
informed by the politics of the post-World War II war
crimes tribunals. If her worries about legalism had
resonance then, it would appear to be even more resonant
today as international legalism has spread. Law, she
argued, should never be seen as an escape from politics
and power; law is a form of power and it can be used to
perpetuate injustice as well as remedy it. To see power as
neutral among political interests would be to contribute to
its mystification. It remains highly contestable whether
what happened in Haiti constitutes a violation of
international law, but apportioning responsibility should
not hinge on this question alone. It is a mistake to allow
law to have the last word on political responsibility.
1 Brown 2015.
2 PAHO 2014.
3 Shklar 1986, 1. We are extracting features of Shklarâ€™s
argument for our purposes, not attempting to reproduce the intent of her argument or its nuances.
For recent discussions of Shklarâ€™s concept, as applied
to international relations, see West 2003; Sinclair
2011; Moyn 2013; Leebaw 2011, 2014; and Dickson 2015.
4 Veitch 2007.
5 This summary draws heavily from the excellent
overview of legalismâ€™s effects by Bronwyn Leebaw.
Correspondence with Barnett, August 4, 2015.
6 Rawski 2002, Sweetser 2008, Verdirame 2013.
7 E.g., Smith and Miller-de la Cuesta 2011, Verdirame
2013, Klein 2016, Koenig-Archibugui 2016.
8 Sengupta 2015.
9 Verdirame 2013; Ladley 2005.
10 On the importance of compliance in the effectiveness
of international law see Guzman 2008, where the
central question is â€œif and when international law
changes the behavior of states,â€ 22. For current
debates see Dunoff and Pollack 2012.
11 Ikenberry 2011, 83.
12 Simmons 2009, 7.
13 Alter 2014a.
14 Sikkink 2011.
15 Cooper-Stephenson exemplifies the optimistic view
when he projects from the domestic growth in legal
remedies for human rights harms to the international
domain, saying the latter will â€œundoubtedly flow …
from the pressures of international conventions and
the general rules of international lawâ€; 2013, 43.
16 Schaefer 2013, 3; Yale 2013, 1.
17 BBC 2010; Katz 2013a.
18 BBC 2010.
19 France24 2010.
20 Reuters 2011.
21 Sontag 2012.
22 Katz 2013b.
23 Archibold 2010; Katz 2013a, 235â€“9.
24 Cravioto et al. 2011; Lantagne et al. 2013; Yale 2013.
25 Katz 2013a, 234.
26 Cravioto et al. 2011, 4.
28 Ibid. However, in light of subsequent studies, the
panel members eventually revised their conclusion,
publishing an updated report in which they stated
that â€œthe preponderance of the evidence and the
weight of the circumstantial evidence does lead to
the conclusion that personnel associated with the
Mirebalais MINUSTAH facility were the most likely
source of introduction of cholera into Haiti.â€ See
Lantagne et al. 2013.
29 Sontag 2012.
30 IJDH/BAI 2011.
31 Ibid, 1.
32 Secretary-General Kofi Annan: â€œa reflection of the
principle of state responsibilityâ€”widely accepted
to be applicable to international organizations
(IOs)â€”that damage caused in breach of an international obligation and which is attributable to the state
(or to the organization) entails the international
responsibility of the state (or of the organization) and
its liability in compensation.â€ See UN A/51/389:
Report on the Administrative and Budgetary Aspects
of the Financing of the United Nations Peacekeeping
Operations 1996, Â¶ 6 (cited in Klein 2016, ms. 3).
The International Court of Justice in Cumaraswamy
said that as a general matter â€œ[the UN] may be
required to bear responsibility for the damage …
incurred as a result of acts performed by the United
Nations or by its agents acting in their official
capacity.â€ See ICJ advisory opinion Difference
Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights 1999,
62 & 88-89 Â¶ 66 (cited in Klein 2016, ms. 3).
33 See instances in Sweetser 2008, Boon 2013b; Lewis
March 2016 | Vol. 14/No. 1 81
34 UN A/RES/52/247 9(b). This Resolution relates to
claims arising from â€œpersonal injury, illness or death,
and for property loss or damage (including
non-consensual use of premises) resulting from or
attributable to the activities of members of
peacekeeping operations in the performance of their
35 Sec. 29 CPIUN.
36 Sec. 55 SOFA.
37 Boon 2013a, Ladley 2005, 85.
38 Oâ€™Brien 2013.
39 ASIL 2014, Lewis 2014.
40 They are Georges et al. v. UN et al., Laventure et al. v.
UN et al., and Jean-Robert et al. v. UN et al.
41 Laventure et al. v. UN et al. 2014, Â¶1.
42 Georges et al. v. UN et al. Opinion & Order 2015.
Jean-Robert et al. v. UN et al., which was also before
Judge Oetken, was dismissed. Laventure et al. v. UN
et al. has been stayed pending the outcome of the
Georges et al. v. UN et al. appeal.
43 See Klabbers 2015.
44 Stichting Mothers of Srebrenica et al. v. The
Netherlands 2013, Â§139(c).
45 Wouters and Schmitt 2010, 83 (cited in Lewis 2014,
46 Pomy 2012.
47 There have been a number of challenges to the
immunity of other IOs on the grounds of the human
right of access to courts and effective remedy, and
some of these have been successful in lower courts,
e.g., Waite and Kennedy v. Germany. See Boon
48 Lempert v. Rice 2013; Sadikoglu v. UN Development
Programme 2011; Brzak v. United Nations 2008; De
Luca v. United Nations Organization 1994; and
Boimah v. United Nations General Assembly 1987.
49 Lempert v. Rice 2013, Â¶1. On Haiti, see also Georges
et al. v. UN et al. 2014.
50 Judge Oetken states that the Brzak v. United Nations
ruling forecloses this argument. See Georges et al. v.
UN et al. Opinion & Order 2015.
51 The Nottebohm case (Lichtenstein v. Guatemala 1955)
has been particularly productive on this subject.
52 Yale 2013, 29.
53 Morrison and Charles 2013.
54 The tragic history of Haiti is obviously beyond
the scope of this article, but the following books
are an excellent overview and highlight how
external interventions and interference have
contributed to its poverty and dependency:
Dubois 2012; Dupuy 2014; Fatton 2014; and
55 Lundhal 2011, 3â€“18; Schuller 2007.
56 Guardian 2015.
57 Dunkle 2010.
58 Lundhal 2011, 8.
59 Ibid., 42.
60 Ibid., 12.
61 Schuller 2012, 2016; Farmer, Gardner, and Van Der
Hoof Holstein 2011; Kaufmann 2010; Klarrich &
62 ASIL 2014.
63 Quigley 2014.
64 UN A/61/636 2006, 4.
65 For instance, Guzman 2008. For discussion, see
Howse and Teitel 2010.
66 Honig 1993. On anti-politics, Ferguson 1990.
67 Sinclair 2011, 1095.
68 Shklar 1986, 2.
69 Moyn 2013, 494; and see Sinclair 2011, 1098.
70 Shklar 1986, 1.
71 Honig 1993, 27.
72 Veitch 2007. Lawâ€™s capacity to distribute responsibilities and to legitimate outcomes is central to legal
realism, critical legal studies, and the law and society
movement, among other approaches. The literature
is vast. In international affairs, this idea has been
put to use recently to understand human rights law
(e.g., Kennedy 2004, 3â€“36; Kratochwil 2014,
200â€“229) and various aspects of war (e.g., Hull
2014, Kinsella 2011). Dodd 2015 gives an intriguing
application to civil rights processes and remedies in
the U.S. context. Its legal theory ancestors include
Shklar, Gramsci, and (arguably) Nietzsche, to name
just a few. However, our use here is distinct from
both Agambenâ€™s state of exception and Schmittâ€™s
extralegal legitimation of legal decisions, in that
Agamben and his followers emphasize the capacity of
the sovereign to define the outer limits of legal forms
and authorities and then to operate beyond those
limits, while Schmitt suggests that the legal/constitutional system rests on extraconstitutional values
that give it its â€œrealâ€ meaning such that acts that
violate the constitution may well be lawful if they
uphold these broader values; Agamben 2005,
Schmitt 2004. The Haiti/cholera story here is the
opposite of both of theseâ€”it reflects the unfolding
logic of the contemporary international political-legal
system as it is written in treaties and other instruments and as interpreted and executed by legal
institutions operating in their â€œnormalâ€ fashion,
neither in exception nor reaching for extralegal
73 Arendt 1963.
74 Barnett and Duvall 2005.
75 This is in line with Mamdaniâ€™s (2014) critique of
â€œhuman rights legalismâ€ in South Africa, and
with the recent historicization of the human rights
project in general by Moyn 2010, Leebaw 2011,
82 Perspectives on Politics
Articles | How to Get Away with Cholera
76 For critiques of the classical view, see Rajkovic 2012,
Sinclair 2011; Altwicker and Diggelmann 2014;
Crawford and Koskenneimi 2012.
77 Grovogui 2002.
78 Simpson 2004, Grovogui 2002, Anghie 2005,
79 West 2003.
80 Williams 2007, 145.
81 Savage 2015.
82 Hurd 2015a.
83 Hurd 2015b.
84 Arendt 2005; May 1996.
85 Cane 2002, 1.
86 Ibid., 2.
87 Feinberg 1970, 30 quoted in Ibid.
88 Koenig-Archibugui 2016.
89 Compare for instance Wuerth 2013 on Kiobel and
Kokott and Sobotta 2012 on Kadi.
90 Murphy 2014.
91 Alter 2014b; Koenig-Archibugui 2016; Teitel 2011.
92 Compare for instance Wuerth 2013 on Kiobel and
Kokott & Sobotta 2012 on Kadi.
93 Koenig-Archibugui 2016.
94 Koppell 2010; Deloffre 2011; Erickson and Sending
2013; Crack 2013.
95 Murphy 2014.
96 IJDH/BAI 2011.
97 The UNâ€™s annual peacekeeping budget for FY2013-
2014 is $7.83 billion (refer to https://www.un.org/
MINUSTAH budget is $576.6 million (http://www.
99 Schaefer 2013.
100 Shklar 1986, 8.
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