The battle for reparation for cholera victims in Haiti

Abstract: In 2010, an explosive cholera epidemic erupted in Haiti, killing close to 10.000 people and injuring some 800.000. Several scientific reports have traced the spread of the bacterium back to the United Nations base in the Mirebalais in Haiti, which hosted the Nepalese peacekeeping contingent. Subsequent claims for reparation filed by cholera victims have been rejected by the United Nations which deem them to be non-receivable in the Organization’s internal claims settlement process. The attempt to obtain remedy in court has been hindered by the immunity from legal suit of the United Nations, resulting in individual claimants being left without remedy or reparation. The legal response by the United Nations has been widely criticized as an “abdication approach” by Special Rapporteur on extreme poverty and human rights, Philip Alston. Shortly after the Organization’s immunities were upheld by a United States Federal Appeals Court, the United Nations announced that more needed to be done with regards to the cholera epidemic and its victims. In December 2016, the Secretary-General issued a public apology to the Haitian population, spoke of the Organization’s “role in the initial cholera outbreak”, and presented a New Approach to cholera in Haiti, that would include intensified general support, as well as targeted support to cholera victims. The United Nation does not admit legal responsibility in relation to the epidemic, or towards its victims, but has frequently referred to its moral responsibility with regards to the cholera case, including in the New Approach. This thesis focuses on an assessment of the New Approach to cholera in Haiti with regards to reparation principles under international human rights law, as well as of the recognition of moral responsibility and its content, in view of determining whether the cholera victims receive appropriate reparation. The cholera case highlights the obstacles individuals may face in attempting to demand and obtain reparation from the United Nations. It illustrates the tensions between the doctrine of immunities and the right to reparation for individuals, and thus the conflict between the classic international legal subjects, identified as States and Organizations, and the recent introduction of the individual as subject of international law. Based on the assessment of the New Approach to cholera in Haiti and of the content of the United Nation’s moral responsibility, as presented by the Organization, I conclude that the admission of moral responsibility, rather than legal, is not an obstacle per se to affording proper reparation, as reparation law provides for many non-judicial measures. In principle, many of the most crucial aspects of reparation can be ensured by the United Nations under the New Approach and on the basis of its recognition of moral responsibility. However, the de facto outcome of the New Approach presents several problems: because of severe underfunding the most relevant reparation aspects under the New Approach are at risk of not being implemented. The New Approach is presented as an expression of the UN’s regret and moral duty, but the funding of the new response is not mandatory for Member States. The question arises whether the recognition of moral responsibility is anything more than absence of legal responsibility. Whereas theoretically, moral responsibility can generate obligations if referencing acts in the past, in practice the United Nations has phrased its moral responsibility for the future, and without any causal link with the cholera outbreak. In sum, the New Approach to cholera in Haiti entails a recognition of responsibility, without accountability. For the victims of the cholera epidemic, it translates into a failure to honour their right to reparation.