A human rights-based challenge: the key to unlock the UN’s immunity problem?

Abstract

The idea of a human rights challenge to UN immunities has made its way into the doctrine over the years, particularly as more scandals involving the UN came to light. From the lead poisoning of a UN-led camp in Kosovo to the cholera epidemic in Haiti started by infected Nepalese Peacekeepers, the discourse around the extensive immunities international organisations benefit from has led to many discussions around the possible solutions to the plight of the victims. Regarding human rights, it is the right of access to justice that has been identified as a one of the strongest concepts to rally around. Widely recognised in many international and regional texts, and – in theory – defended by human rights court, the right of access to justice has however not been able to truly materialize as a challenger to immunities. Even further analysis based on its potential status as a jus cogens norm has not had much success. The status is still heavily disputed, and the very strength of jus cogens norms in general against immunity has not found unanimity in courts. However, while an overview of the jurisprudence shows a general rejection of a human rights-based challenge of the UN’s immunities, this article refuses to end on a pessimistic conclusion. From doctrinal analyses to dissenting opinions and even some court cases, the recognition of the right of access to justice – whether as a jus cogens norm or not – is starting to make its way in the human rights discourse around the UN’s immunities. While not yet a fully-fledged trend, a pattern of resistance is forming against the majority of the jurisprudence on the issue.