Georges v. United Nations
| Decision Date | 18 August 2016 |
| Docket Number | August Term 2015,No. 15–455–cv,15–455–cv |
| Citation | 834 F.3d 88 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Second Circuit |
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 disputes1 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.
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
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.
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...
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