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The United Nations Legislates to Limit its Liability

Published online by Cambridge University Press:  27 February 2017

Paul C. Szasz
Paul C. Szasz*
Affiliation:
General Legal Division, Office of Legal Affairs, United Nations
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Extract

By now everyone in the United States, certainly every lawyer, must be conscious of the tort liability crisis and the consequent liability insurance crisis. Private individuals, businesses, not-for-profit enterprises and even governmental units, from school boards to the federal Government, are finding that the damages they have to pay or their insurance costs are skyrocketing, sometimes catastrophically or even cripplingly; as a result, worthwhile events must be canceled and valuable facilities are idled. Although it may be thought that these mundane concerns cannot affect an international organization—even one, like the United Nations, based in the United States—that surely it can shelter itself with its immunity, this unfortunately is not so. Although the United Nations, like other intergovernmental organizations, does enjoy full jurisdictional immunity, based generally upon its Charter but more specifically on international treaties and even national legislation, there is somewhat less to this protection than meets the uninformed eye. Since their member states expect the organizations they establish to be good international citizens, they have prohibited them from hiding behind their functional immunity for the purpose of evading either contractor tort-related responsibilities. Indeed, they may only use their immunity in order to avoid litigation in a national court or some other inappropriate forum; but if they cannot resolve a dispute, for example with a tort claimant, they must offer some other suitable means of settling the matter, such as by arbitration.

Type
Current Developments
Information
American Journal of International Law , Volume 81 , Issue 3 , July 1987 , pp. 739 - 744
Copyright
Copyright © American Society of International Law 1987

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References

1 See sees. 2, 20–21, 23 and especially 29 of the Convention on the Privileges and Immunities of the United Nations, entered into force Sept. 17, 1946, 21 UST 1418, TIAS No. 6900, 1 UNTS 16 (entered into force for the United States Apr. 29, 1970). Incidentally, there is no similar requirement in sec. 2(b) of the 1945 International Organizations Immunities Act, Pub. L. No. 79–291, 59 Stat. 669 (22 U.S.C. §288a(b)) ( the principal statutory source of the Organization’s jurisdictional immunity in the United States, though under sec. 1 of the Act the President could revoke the designation of an organization that is considered to be abusing its immunity.

2 Report of the Secretary-General on the Programme Budget for the Biennium 1986–1987: Revised estimates under section 28K, Miscellaneous expenses (general insurance), UN Doc. A/C.5/41/11, paras. 5, 7 and 13 (1986) [hereinafter Report]. The insurance and the claims here mentioned do not include those of staff members of the United Nations, who are covered by an internal, self-insured workmen’s compensation scheme: Rules Governing Compensation in the Event of Death, Injury or Illness Attributable to the Performance of Official Duties on Behalf of the United Nations, UN Doc. ST/SGB/Staff Rules/Appendix D/Rev.1 (1966) and Amend.1 (1976).

3 See Nelson, , International Law and U.S. Withholding of Payments to International Organizations, 80 AJIL 973 (1986)CrossRefGoogle Scholar.

4 Report, supra note 2, paras. 8–16.

5 Id., paras. 25–28 and Annex.

6 Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416, TIAS No. 1676, 11 UNTS 11.

7 The “headquarters district” is defined in sec. 1(a) and in Annex 1 to the Headquarters Agreement, and has been expanded to include some additional buildings by a Supplemental Agreement regarding the Headquarters of the United Nations, Feb. 9, 1966, 17 UST 74, TIAS No. 5961, 554 UNTS 308, as amended Dec. 8, 1966, 17 UST 2319, TIAS No. 6176, 581 UNTS 362; by a Second Supplemental Agreement, Aug. 28, 1969, 20 UST 2810, TIAS No. 6750, 687 UNTS 408; and by a Third Supplemental Agreement, Dec. 10, 1980, 32 UST 4414, TIAS No. 9955. Even so, not all the premises at present used by the Organization in New York are yet included in the headquarters district.

8 GA Res. 481 (V) (Dec. 12, 1950).

9 GA Res. 604 (VI) (Feb. 1, 1952).

10 UN Doc. A/C.5/41/SR.24, paras. 17–46 (1986). The Secretary–General’s proposal had previously been endorsed by the Advisory Committee on Administrative and Budgetary Questions (ACABQ). UN Doc. A/41/7/Add.6, paras. 7 and 12 (1986).

11 UN Doc. A/C.5/41/SR.36, paras. 5–9 (1986). Report of the Fifth Committee, UN Doc. A/41/954, paras. 22, 24 and 51, and Draft Res. II (1986).

12 UN Doc. A/41/PV.101, at 26 (1986). GA Res. 41/210 (Dec. 11, 1986).

13 The Rules Governing Compensation to Members of Commissions, Committees or Similar Bodies in the Event of Death, Injury or Illness Attributable to Service with the United Nations are set out in UN Doc. ST/SGB/103/Rev. 1 (1980). They are based on those for compensating staff members for service-incurred injuries (see supra note 2) and are considered relatively generous.

14 The text of Resolution 41/210 is as follows:

Limitation of damages in respect of acts occurring within the Headquarters district

The General Assembly,

Adopts, within the provisions of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, in accordance with the provisions of General Assembly resolution 481 (V) of 12 December 1950, and for the purpose of placing reasonable limits on the amount of compensation or damages payable by the United Nations in respect of acts or omissions occurring within the Headquarters district, the following regulation:

1. In any tort action or in respect of any tort claim by any person against the United Nations or against any person, including a corporation, acting on behalf of the United Nations, to the extent that the United Nations may be required to indemnify such person, whether such person is a member of its staff, an expert or a contractor, arising out of any act or omission, whether accidental or otherwise, in the Headquarters district, no person shall be entitled to:

(a) Compensation or damages for economic loss, as defined herein, in excess of:

(i) The limits prescribed for death, injury or illness in the Rules Governing Compensation to Members of Commissions, Committees or Similar Bodies in the Event of Death, Injury or Illness Attributable to Service with the United Nations applied mutatis mutandis;

(ii) Reasonable amounts for damaged, destroyed or lost property;

(b) Compensation or damages in excess of $100,000 for any non–economic loss;

(c) Any punitive or moral damages.

2. As used in this regulation:

(a) “Economic loss” means the reasonable cost of repairing or replacing property, and, in respect of death, injury or illness, any reasonable past, present and estimated future:

(i) Health care expenses;

(ii) Rehabilitation expenses;

(iii) Loss of earnings;

(iv) Loss of financial support;

(v) Cost of homemaker services;

(vi) Transportation expenses;

(vii) Burial expenses;

(viii) Legal expenses.

(b) “Headquarters district” means the district by that name as defined in section 1 of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, of 26 June 1947.

15 See Dep’t of Justice press release, Apr. 30, 1986, attached to which was, inter alia, a proposed Federal Tort Claims Reform Act of 1986, reported in N.Y. Times, May 1, 1986, at B9, col. 1. The proposed act was introduced in the House of Representatives on May 7, 1986, as H.R. 4770, 99th Cong., 2d Sess., and the $100,000 limit appeared in §3 as a proposed new subsection 28 U.S.C. §2674(d)(1). In spite of initial optimism, the 99th Congress took no action on it.

16 See 28 U.S.C. §2674 (1982).

17 Even though the headquarters agreements that the United Nations has concluded with certain governments concerning particular facilities in other countries contain similar provisions enabling the Organization to enact regulations that supersede local law within a defined district, the tort liability and third-party insurance conditions in none of these have necessitated the enactment of similar regulations pursuant to such agreements. For such provisions, see, e.g., sees. 7(b) and 8 of the Agreement of Apr. 13, 1967 between the United Nations and Austria regarding the Headquarters of the United Nations Industrial Development Organization, 600 UNTS93,andsecs. 7(b)and8ofthe Agreement of Mar. 26, 1975 between the United Nations and the Republic of Kenya regarding the Headquarters of the United Nations Environment Programme, 962 UNTS 89.

18 Restatement (Second) of Conflict of Laws §§145(2) and 146 (1969).

19 U.S. Const, art. VI, §2.