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Georges v. United Nations

United States Court of Appeals, Second Circuit

August 18, 2016

Delama Georges, individually and on behalf of the Estate of Desilus Georges and all others similarly situated; Alius Joseph, individually and on behalf of the Estate of Marie-Claude Lefeuve and all others similarly situated; Lisette Paul, individually and on behalf of the Estate of Fritznel Paul and all others similarly situated; Felicia Paule, individually and on behalf of all others similarly situated; Jean Rony Silfort, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
United Nations; United Nations Stabilization Mission in Haiti; Edmond Mulet, former Under-Secretary-General of the United Nations Stabilization Mission in Haiti; Ban Ki-moon, Secretary- General of the United Nations, Defendants-Appellees.

          Argued: March 1, 2016

         On Appeal from the United States District Court for the Southern District of New York

         On appeal from the January 15, 2015 judgment of the United States District Court for the Southern District of New York (J. Paul Oetken, Judge) dismissing plaintiffs' action for lack of subject matter jurisdiction under the Convention on the Privileges and Immunities of the United Nations (the "CPIUN"), Apr. 29, 1970, 21 U.S.T. 1418.

         The principal question presented by this appeal is whether the UN's fulfillment of its obligation under Section 29 of the CPIUN to "make provisions for appropriate modes of settlement of . . . disputes arising out of contracts or other disputes of a private law character to which the [UN] is a party, " as well as "disputes involving any official of the [UN] who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General, " is a condition precedent to its immunity under Section 2 of the CPIUN, which provides that the UN "shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity."

         Because we hold that the UN's fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity- and because we find plaintiffs' other arguments unpersuasive-we AFFIRM the District Court's judgment.

          Beatrice Lindstrom (Brian Concannon, on the brief), Institute for Justice & Democracy in Haiti, Boston, MA, for Plaintiffs- Appellants.

          Ira Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt P.A., Miami, FL, for Plaintiffs-Appellants.

          Jeffrey Brand, Center for Law & Global Justice, University of San Francisco School of Law, San Francisco, CA, for Plaintiffs- Appellants.

          Ellen Blain (Jeannette Vargas, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Amicus Curiae the United States of America.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Sharon Swingle, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Amicus Curiae the United States of America.

          Mary E. McLeod, Principal Deputy Legal Adviser, and Henry Azar, Jr., Attorney Adviser, United States Department of State, Washington, DC, for Amicus Curiae the United States of America.

          Before: Cabranes, Parker, and Lynch, Circuit Judges.

          José A. Cabranes, Circuit Judge

         The principal question presented by this appeal is whether the fulfillment by the United Nations ("UN") of its obligation under Section 29 of the Convention on Privileges and Immunities of the United Nations (the "CPIUN"), Apr. 29, 1970, 21 U.S.T. 1418, to "make provisions for appropriate modes of settlement of" certain disputes[1] is a condition precedent to its immunity under Section 2 of the CPIUN, which provides that the UN "shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity, "[2] such that the UN's alleged disregard of its Section 29 obligation "compel[s] the conclusion that the UN's immunity does not exist."[3]

         We hold that the UN's fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity. For this reason-and because we find plaintiffs' other arguments unpersuasive-we AFFIRM the January 15, 2015 judgment of the United States District Court for the Southern District of New York (J. Paul Oetken, Judge) dismissing plaintiffs' action against defendants the UN, the UN Stabilization Mission in Haiti ("MINUSTAH"), UN Secretary-General Ban Ki-moon ("Ban"), and former MINUSTAH Under-Secretary-General Edmond Mulet ("Mulet") for lack of subject matter jurisdiction.

         BACKGROUND

         Plaintiffs are citizens of the United States or Haiti who claim that they "have been or will be sickened, or have family members who have died or will die, as a direct result of the cholera" epidemic that has ravaged the Republic of Haiti since October 2010.[4] In this putative class action, plaintiffs seek to hold defendants responsible for their injuries, and to that end, assert various causes of action sounding in tort and contract against them.[5]

         Specifically, plaintiffs allege that, in October 2010, "[d]efendants knowingly disregarded the high risk of transmitting cholera to Haiti when . . . they deployed personnel from Nepal to Haiti, knowing that Nepal was a country in which cholera is endemic and where a surge in infections had just been reported."[6]According to plaintiffs, defendants not only failed to test or screen these Nepalese personnel prior to their deployment, allowing them to carry into Haiti the strain of cholera that is the epidemic's source; they also stationed them at a base on the banks of the Meille Tributary, which flows into the Artibonite River, the primary water source for "tens of thousands" of Haitians.[7] From this base, defendants allegedly "discharged raw sewage" and "disposed of untreated human waste, " which "created a high risk of contamination."[8] Eventually, plaintiffs contend, "human waste from the base seeped into and contaminated the Meille Tributary" and, ultimately, the Artibonite River, "resulting in explosive and massive outbreaks of cholera . . . throughout the entire country."[9]

         Defendants did not enter an appearance before the District Court. But on March 7, 2014, the executive branch of the United States government (the "Executive Branch") submitted a statement of interest pursuant to 28 U.S.C. § 517, in which it took the position that defendants are "immune from legal process and suit" pursuant to the UN Charter, June 26, 1945, 59 Stat. 1031; the CPIUN; and the Vienna Convention on Diplomatic Relations (the "VCDR"), Apr. 18, 1961, 23 U.S.T. 3227.[10]

         The District Court agreed with the Executive Branch. Accordingly, on January 9, 2015, it dismissed plaintiffs' action for lack of subject matter jurisdiction.[11] With respect to the UN and MINUSTAH, the District Court relied on Section 2 of the CPIUN. To reiterate, Section 2 provides that the UN "shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity."[12] The District Court reasoned that, because "no party contend[ed] that the UN ha[d] expressly waived its immunity, " the UN was "immune from [p]laintiffs' suit."[13] With respect to Ban and Mulet, the District Court relied on Article 31 of the VCDR, which provides that "[a] diplomatic agent shall enjoy immunity . . . from [a receiving State's] civil and administrative jurisdiction, " except in circumstances undisputedly not presented here.[14] The District Court concluded that, because Ban and Mulet both held diplomatic positions at the time plaintiffs filed their action, they were immune as well.[15]

         Plaintiffs timely appealed.[16] Defendants did not enter an appearance before this Court either, but the Executive Branch "submit[t]ed an amicus curiae brief, pursuant to 28 U.S.C. § 517 . . ., in [their] support."[17]

         DISCUSSION

         Under principles of long standing, "[w]hen this Court reviews the dismissal of a complaint for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor."[18]

         On appeal, plaintiffs raise three principal arguments. First, they argue that the District Court erred in holding that the UN and MINUSTAH are immune because the UN's fulfilment of its obligation under Section 29 of the CPIUN to provide for appropriate dispute-resolution mechanisms is a condition precedent to its Section 2 immunity.[19] Second, they argue that the District Court's holding was in error because the UN materially breached the CPIUN by failing to fulfill its Section 29 obligation, such that it is no longer entitled to the benefit of immunity under Section 2. Third, they argue that the District Court's application of the CPIUN to dismiss their action violated their constitutional right of access to the federal courts. We address each argument in turn.

         I. Condition Precedent

         Plaintiffs' first argument requires us to interpret the CPIUN, so we begin by describing the framework that governs any such inquiry. "The interpretation of a treaty, like the interpretation of a statute, begins with its text, "[20] and "[w]here the language of . . . [a] treaty is plain, a court must refrain from amending it because to do so would be to make, not construe, a treaty."[21] Additionally, because "[a]s a general matter, a treaty is a contract . . . between nations, " it is "to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals."[22]Further, "while the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the Executive Branch's interpretation of a treaty is entitled to great weight."[23]

         Here, application of two particular "principles which govern the interpretation of contracts"[24] demonstrates why plaintiffs' first argument is unavailing.

         The first such principle is expressio unius est exclusio alterius- "express mention of one thing excludes all others"[25]-which is also known as the negative-implication canon.[26] This principle has guided federal courts' interpretations of treaties for over a century.[27]

         As noted above, Section 2 of the CPIUN provides that the UN "shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity."[28] Especially when coupled with the compulsory

          "shall"- which "is universally understood to indicate an imperative or mandate"[29]-Section 2's "express mention of" the UN's express waiver as a circumstance in which the UN "shall [not] enjoy immunity" negatively implies that "all other[ ]" circumstances, including the UN's failure to fulfill its Section 29 obligation, are "exclude[d]."[30] It necessarily follows that the UN's fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity.

         This conclusion is buttressed by the second principle of contract interpretation relevant to our analysis-that "conditions precedent to most contractual obligations . . . are not favored and must be expressed in plain, unambiguous language."[31] To manifest their intent to create a condition precedent, "[p]arties often use language such as 'if, ' 'on condition that, ' 'provided that, ' 'in the event that, ' and 'subject to.'"[32] No such language links Sections 2 and 29 in the CPIUN. Of course, "specific talismanic words are not required."[33] But "there is [also] no . . . [other] language [in the CPIUN] which, even straining, we could read as imposing" the UN's fulfillment of its Section 29 obligation as a condition precedent to its Section 2 immunity.[34]

         It is also significant that the Executive Branch's interpretation of the CPIUN-an interpretation "entitled to great weight"[35]- accords with our own. The Executive Branch sees "[n]othing in Section 29 . . . [that] states, either explicitly or implicitly, that compliance with its terms is a precondition to the UN's immunity under Section 2."[36] Neither do we.

         Plaintiffs' arguments to the contrary are unconvincing. For example, plaintiffs argue that "[t]he UN's post- ratification . . . practice pursuant to . . . Section 29 . . . demonstrates that entitlement to immunity is premised on the provision of alternative dispute settlement."[37] Plaintiffs' chief example of this supposed practice is the UN's statement before the International Court of Justice that the UN's immunity "does not leave a plaintiff without remedy [because] . . . in the event that immunity is asserted, a claimant seeking redress against the Organization shall be afforded an appropriate means of settlement [under Section 29]."[38] This statement, however, suggests at most that the UN views Section 29 as "more than merely aspirational"-as "obligatory and perhaps enforceable."[39] It does not in any way suggest that the UN views Section 29 as a condition precedent to Section 2.

         Plaintiffs also argue that "foreign signatories to the CPIUN have repeatedly held that the availability of alternative dispute settlement is a material condition to international organizations' entitlement to immunity, " and that "these foreign courts' views provide persuasive authority for this case, per the direction of the U.S. Supreme Court."[40] This argument is misleading. The Supreme Court has indeed held that, "[i]n interpreting any treaty, the opinions of our sister signatories are entitled to considerable weight."[41] But in so holding, the Court was obviously referring to the opinions of states that are parties to the treaty that is being interpreted regarding that same treaty, not the opinions of states that happen to have ratified the treaty at issue regarding another treaty entirely. Most of plaintiffs' examples fall into the latter category- they are cases from the courts of states that have ratified the CPIUN, but they pertain to unrelated agreements, including the agreement between France and the UN Educational, Scientific and Cultural Organization;[42] and the agreement between Italy and the International Plant Genetic Resources Institute regarding its headquarters in Rome.[43] Another of the plaintiffs' examples appears to have involved the CPIUN, but the portion of the holding relevant to the plaintiffs' argument is based on an interpretation of the state's constitution rather than the CPIUN itself.[44]

         As we have seen, whether a term constitutes a condition precedent depends on the particular language of the instrument that is being evaluated.[45] For the most part, plaintiffs have not suggested that the aforementioned agreements contain language that is even comparable-much less identical-to that found in Sections 2 and 29 of the CPIUN. Thus, plaintiffs' reliance on cases interpreting those agreements is misplaced.[46]

         Plaintiffs do argue that the agreement between France and UNESCO, at issue in UNESCO v. Boulois, Cour d'Appel [CA] [Court of Appeal] Paris (Fr.), June 19, 1998, is "virtually identical" to the CPIUN.[47] Notwithstanding textual similarities between the two treaties, we do not find the French court's interpretation relevant to this case. The France-UNESCO agreement arose in a materially different context than the CPIUN: it is a bilateral agreement between France and UNESCO whereas the CPIUN is a multilateral treaty signed by a number of countries. That a French court interpreting an agreement between France and a UN agency found ...


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