Siddhant Shinde
The United Nations (UN) was established in 1945 in response to the Second World War with the objective of ‘prevention and removal of threats to peace’ and to ‘maintain international security’, by preventing war, protecting human rights and facilitating international cooperation. The 21st Century saw a broadening of the definition of ‘threats to international security’, including not only inter-state conflicts, but encompassing conflicts between states and non-state actors, government coups, refugee displacement etc., leading to the UN performing external functions, often masquerading as a quasi-state. Chimni takes this argument a step further, and identifies the rise of a global government, which includes international institutions such as the UN, and their role in legitimizing international policies and practices through executive and legislative functions. Chimni however, fails to touch upon the judicial and quasi-judicial nature of the UN through its organs such as the International Court of Justice (ICJ). Fredman argues that the expansion of UN’s ambit from being a mere facilitator to performing external functions has led to the UN disposing state functions; necessitating a sound and neutral accountability mechanism, especially considering that the actions of the UN often affect not only communities at large but also states.
There exists a noticeable gap in the accountability mechanism in cases where the UN is party to a dispute. Yacoub and Briggs propose arbitration to tackle this issue, and propose the adoption of a multilateral treaty following the footsteps of the International Centre for Settlement of Investment Disputes (ICSID) treaty, to be signed by international organizations, which would subject the UN to arbitration upon an agreement. They tackle the question of enforcement by proposing that the UN sign the New York Convention on the Recognition and Enforcement of Foreign Awards. Though, arbitration as an accountability mechanism has multiple benefits, their proposed paradigm however leaves some fundamental questions unanswered.
This article tries to identify such gaps, and make a case for Arbitration in UN related Human Right Violation cases. The article focuses on the question of Jurisdiction, which is closely linked with the question of ‘arbitrability’, and proposes that the parties in dispute may enter a Submission Agreement to arbitrate, deviating from the route proposed by Yacoub and Briggs.
Existing internal oversight bodies, such as the Office of Internal Oversight Services (OIOS), fall short in addressing this gap of lack of an effective accountability mechanism when the UN is a party to a dispute as it only investigates in the event that the national government of the staff member who has been accused of misconduct or crime refuses to investigate or prosecute. Further, its power is limited in nature, and only national governments have the power to determine criminal or civil liability. Even international judicial bodies fail to dispense this function, as the jurisdiction of most international bodies, such as the ICJ and the International Criminal Court only extends to ‘states’. Though scholars have often argued that the UN can be assumed to be a state, the UN Charter defines the UN to be an ‘organization’, and thus is beyond the jurisdiction of such bodies. In arguendo, if the UN is also assumed to be a state, then UN organs such as the ICJ would be in gross violation of the principle of Nemo judex in causa sua, if they were to allow a suit against the UN.
Udofia and Diala argue that the UN can be brought under the scope of universal jurisdiction, thus allowing all national courts to try the UN as a party. Though it is true that the UN is a juristic person, and thus can be tried in national courts on that count, members of the UN and its organs enjoy immunity not only from personal arrest, but also from legal process for acts done in their capacity as representatives. If this immunity is enjoyed by the UN as a body too, is unclear; however, prosecuting an organization solely for criminal actions of its staff members, employees or forces, who acted without its explicit directives, is not justified and does not serve the purposes of either rehabilitation or punishment.
Thus, the reason why a neutral and appropriate forum to try the UN doesn’t exist is that most bodies such as the ICJ lack jurisdiction, given that the UN is not a ‘state’. Arbitration resolves this issue as it involves disputes between parties that have agreed to resolve their issues through this method, thus allowing non-state actors such as the UN to be tried.
Another aspect that Yacoub and Briggs fail to address is the arbitration agreement, which is a pre-condition to the process of arbitration. The absence of pre-signed arbitration agreements between the victims’ states and the UN raises significant legal and jurisdictional issues. Given the degree of autonomy that arbitration allows, and the widening scope of arbitrable matters, it is argued that the arbitration agreement can be drafted in a way to enable it to adjudicate upon human rights issues. A submission agreement (also called a compromiso), which deals with a dispute that has already arisen, may be entered into. This not only solves the issue of jurisdiction, but also allows parties to govern other issues, such as the quantum and nature of punishment/compensation etc.
The scope of arbitration is defined by both the New York Convention and the Model Law to those disputes that are ‘capable of settlement by arbitration’. The discretion to reserve certain issues of public interest however, lies with national courts. Though Hunter broadly concludes that all ‘commercial’ matters are arbitrable, the lack of a binding uniform answer to the issue of arbitration, combined with the discretion given to national courts suggests that arbitrability of a dispute is not limited by rigid boundaries of ‘commerciality’. For instance, the lack of a proper forum to deal with treaty-related human rights issues within the realm of investor-state dispute has led to arbitration tribunals taking cognizance of such issues, and thus it is argued that it’s not unprecedented for non-commercial cases to resort to Arbitration. If a human right violation such as the actions of UN peacekeeping forces in Haiti can be the sole subject matter of an arbitration proceeding remains unclear. Various issues deemed non-arbitrable in the past are now considered arbitrable, such as competition law disputes. Further, human rights issues have been dealt with by arbitration tribunals in cases of investment arbitrations in the past; although they have typically been subsidiary matters rather than the sole subject of arbitration. Human Rights issues typically include punishment, compensation, or rehabilitation. A Submission Agreement may be tailored to fit precisely the circumstances of the case; this may include defining the jurisdiction, procedure and scope of the Tribunal’s power. While an arbitration tribunal doesn’t typically have the authority to punish, tribunals do have the power to offer compensations, which might be an appropriate remedy in most cases, considering that the UN i.e., an organization is the alleged perpetrator. It is proposed that the staff members may be tried according to status quo, i.e., in their national jurisdictions, or in the national jurisdiction of the victim state. This system offers both rehabilitation/punishment and compensation for the victim.
While the current scholarship on this issue acknowledges this gap of lack of a sound accountability mechanism, little is said about ways to tackle this issue. Arbitration paints a promising picture in this regard due to its inherently adaptable nature, and wide scope. Building upon what was proposed by Yacoub and Briggs, and filling in the gaps left by them, the author believes that the proposed structure helps provide a basic roadmap to employ arbitration in cases of human rights violations by the UN.
The author is a third-year student at MNLU, Mumbai.
NUALS Law Journal 