15‐455‐cv
Georges v. United Nations
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
No. 15‐455‐cv
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.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MARCH 1, 2016
DECIDED: AUGUST 18, 2016
Before: CABRANES, PARKER, and LYNCH, Circuit Judges.
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.
2
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
3
Adviser, United States Department of State,
Washington, DC, for Amicus Curiae the
United States of America.
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
1 Section 29 reads as follows:
The [UN] shall make provisions for appropriate modes of
settlement of
(a) disputes arising out of contracts or other disputes of a
private law character to which the [UN] is a party;
(b) 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.
CPIUN art. VIII, § 29.
2 Id. art. II, § 2.
4
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
Pls.’ Br. 26.
3
See A‐17–18.
4
A‐66–78.
5
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
A‐16.
6
See id.
7
A‐16–17.
8
9 A‐17. Developments surrounding these allegations remain ongoing. See,
e.g., Jonathan M. Katz, Facing Stern Report, U.N. Admits Role in Haiti Cholera
Outbreak, N.Y. Times, Aug. 18, 2016, at A1.
6
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
10 Executive Branch Statement of Interest at 1, Georges v. United States, No.
13‐CV‐7146 (JPO) (S.D.N.Y. Mar. 7, 2014), ECF No. 21. Section 517 provides that
“[t]he Solicitor General, or any officer of the Department of Justice, may be sent
by the Attorney General to any State or district in the United States to attend to
the interests of the United States in a suit pending in a court of the United States,
or in a court of a State, or to attend to any other interest of the United States.” 28
U.S.C. § 517.
11 See Georges v. United Nations, 84 F. Supp. 3d 246, 247 (S.D.N.Y. 2015).
12 CPIUN art. II, § 2.
13 Georges, 84 F. Supp. 3d at 249.
7
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
14 VCDR art. 31.
15 See Georges, 84 F. Supp. 3d at 250.
16 See A‐502–03.
17 Letter on Behalf of Amicus Curiae United States of America at 1,
Georges v. United Nations, No. 15‐455‐cv (2d Cir. June 29, 2015), ECF No. 179; see
also Brief for Amicus Curiae United States of America, Georges v. United Nations,
No. 15‐455‐cv (2d Cir. Aug. 27, 2015), ECF No. 199 (“Government’s Br.”).
Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015) (internal quotation
18
marks omitted).
8
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
As discussed above, Section 29 requires the UN to “make provisions for
19
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.”
CPIUN art. VIII, § 29.
Abbott v. Abbott, 560 U.S. 1, 10 (2010) (internal quotation marks omitted);
20
accord United States v. Alvarez‐Machain, 504 U.S. 655, 663 (1992) (“In construing a
treaty, as in construing a statute, we first look to its terms to determine its
meaning.”).
9
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
Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 457 (2d
21
Cir. 2003); see Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 32 (2004)
(“Where the words of a . . . treaty . . . have a plain and obvious meaning, all
construction, in hostility with such meaning, is excluded.” (brackets and internal
quotation marks omitted)); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989)
(“We must . . . be governed by the text[,] . . . whatever conclusions might be
drawn from the . . . drafting history . . . .”).
BG Grp., PLC v. Republic of Arg., 134 S. Ct. 1198, 1208 (2014) (brackets
22
and internal quotation marks omitted); see Société Nationale Industrielle
Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 533 (1987) (“In
interpreting an international treaty, we are mindful that it is in the nature of a
contract between nations, to which general rules of construction apply.” (citation,
brackets, and internal quotation marks omitted)).
23 Lozano v. Alvarez, 697 F.3d 41, 50 (2d Cir. 2012) (internal quotation
marks omitted), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014); see
Medellín v. Texas, 552 U.S. 491, 513 (2008) (“It is . . . well settled that the United
States’ interpretation of a treaty is entitled to great weight.” (internal quotation
marks omitted)); Swarna v. Al‐Awadi, 622 F.3d 123, 136 (2d Cir. 2010) (noting the
“well[‐]established canon of deference with regard to Executive Branch
interpretation of treaties” (internal quotation marks omitted)).
10
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
24 BG Grp., PLC, 134 S. Ct. at 1208 (internal quotation marks omitted).
25 Rivas v. Fischer, 687 F.3d 514, 551 (2d Cir. 2012).
26 See United States v. Bainbridge, 746 F.3d 943, 947 (9th Cir. 2014).
27 See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (relying on the
principle in interpreting a treaty between the United States and Russia); United
States v. Rauscher, 119 U.S. 407, 420 (1886) (“[T]he enumeration of offenses in
most [extradition] treaties, and especially in the treaty now under consideration,
is so specific, and marked by such a clear line in regard to the magnitude and
importance of those offenses, that it is impossible to give any other interpretation
to it than that of the exclusion of the right of extradition for any others.”); Cannon
v. U.S. Dep’t of Justice, U.S. Parole Comm’n, 973 F.2d 1190, 1193 & n.18 (5th Cir.
1992); cf. Luigi Crema, Disappearance and New Sightings of Restrictive
Interpretation(s), 21 Eur. J. Int’l L. 681, 692–93 (2010) (noting that various
international courts, including the International Court of Justice, the European
Court of Human Rights, and certain arbitral tribunals, have relied on the
principle in interpreting treaties).
28 CPIUN art. II, § 2.
11
“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
29 Dallio v. Spitzer, 343 F.3d 553, 562 (2d Cir. 2003).
30 Cf. Olden v. LaFarge Corp., 383 F.3d 495, 504 n.2 (6th Cir. 2004)
(interpreting the phrase “[e]xcept as provided in subsections (b) and (c)” as
“demonstrat[ing] that Congress intended the exclusions mentioned in those
subsections to be exclusive” (emphasis in original) (internal quotation marks
omitted)); Café Erotica of Fla., Inc. v. St. Johns County, 360 F.3d 1274, 1288 (11th Cir.
2004) (applying the expressio unius principle to the statutory phrase “except those
in residential districts” (emphasis in original) (internal quotation marks omitted)).
31 In re Timely Secretarial Serv., Inc., 987 F.2d 1167, 1174 n.7 (5th Cir. 1993);
see Bank of N.Y. Mellon Tr. Co. v. Morgan Stanley Mortg. Capital, Inc., 821 F.3d 297,
305 (2d Cir. 2016) (“Conditions precedent are not readily assumed. . . . Thus, in
determining whether a particular agreement makes an event a condition, courts
will interpret doubtful language as embodying a promise or constructive
condition rather than an express condition.” (brackets and internal quotation
marks omitted)); Navarro v. F.D.I.C., 371 F.3d 979, 981 (7th Cir. 2004) (“Conditions
precedent are generally disfavored; in resolving doubts about whether a contract
contains a condition precedent, interpretations that reduce the risk of forfeiture
are favored.” (citing Restatement (Second) of Contracts § 227(1) (1981))).
12
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
32 Ginett v. Comput. Task Grp., Inc., 962 F.2d 1085, 1100 (2d Cir. 1992) (some
internal quotation marks omitted); see Fed. Labor Relations Auth. v. Aberdeen
Proving Ground, Dep’t of the Army, 485 U.S. 409, 412 (1988) (describing “only if’”
as “the language of . . . a condition precedent” (internal quotation marks
omitted)); Bank of N.Y. Mellon Tr. Co., 821 F.3d at 305 (describing “if,” “on
condition that,” “provided that,” “in the event that,” and “subject to” as the
“recognized linguistic conventions of condition” (internal quotation marks
omitted)); Restatement (Second) of Contracts § 226 cmt. a (1981) (observing that,
although “[n]o particular form of language is necessary to make an event a
condition, . . . such words as ‘on condition that,’ ‘provided that’ and ‘if’ are often
used for this purpose”).
33 Bank of N.Y. Mellon Tr. Co., 821 F.3d at 305.
34 See Ginett, 962 F.2d at 1100.
35 Lozano, 697 F.3d at 50 (internal quotation marks omitted).
13
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’
36 Government’s Br. 10.
37 Pls.’ Br. 30.
Id. (alterations and emphases in original) (quoting Verbatim Record,
38
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, 1999 I.C.J. Rep. 62 (Dec. 10,
1998)).
39 Georges, 84 F. Supp. 3d at 250.
14
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,
40 Pls.’ Br. 31.
41 Abbott, 560 U.S. at 16 (brackets, ellipsis, and internal quotation marks
omitted). In the foregoing quotation, the Supreme Court was likely using
“signatories” in an informal, almost colloquial way. It is not the opinions of
states that have merely signed a treaty that we should find persuasive; it is the
opinions of states that have ratified the treaty. As the Vienna Convention on the
Law of Treaties provides, “[t]here shall be taken into account, together with the
context” of a treaty, “[a]ny subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation.”
Vienna Convention on the Law of Treaties, art. 31(3), May 23, 1969, 1155 U.N.T.S.
331 (emphasis supplied); see Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir.
2008) (“Although the United States has not ratified the Vienna Convention on the
Law of Treaties, our Court relies upon it as an authoritative guide to the
customary international law of treaties, insofar as it reflects actual state
practices.” (internal quotation marks omitted)). A state does not become a party
until it “ratifies, and thus becomes bound by, the treaty in question,” Hollis v.
O’Driscoll, 739 F.3d 108, 111 n.2 (2d Cir. 2014) (emphases supplied), as its “signing
of [the] treaty serves only to authenticate [the] text, and does not establish [its]
consent to be bound.” Id. (emphasis in original) (alterations and internal
quotation marks omitted).
15
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
42 Pls.’ Br. 31; A‐342–43.
43 Pls.’ Br. 31; A‐349–51. Plaintiffs also refer to Maida v. Administration for
International Assistance, Cass., 27 maggio 1955, 39 RDI 546, 23 ILR 510, a decision
from Italy’s highest court that is now over 60 years old. See Pls.’ Br. 32. Plaintiffs
do not include in their appendix a copy of Maida, in English or Italian; instead,
they include a chapter of a book in which Maida is discussed. See A‐359–63
(quoting Riccardo Pavoni, Italy, in The Privileges and Immunities of International
Organizations in Domestic Courts 155, 155–63 (August Reinisch ed., 2013)).
Here is what the chapter’s author has to say about Maida: “As early as
1955, the Supreme Court denied immunity to the International Refugee
Organization (IRO) in a labour dispute, on the grounds that the arbitral process
envisaged in the IRO’s Staff Regulations was unlawful . . . . The Court’s basis for
this pioneering finding is not straightforward. It was probably influenced by its
assumption of an implied waiver of immunity arising from repeated references to the
applicability of Italian legislation in the legal instruments regulating the IRO’s activities
in Italy. But the Court also mentioned the necessity to secure the individual right
of access to justice.” A‐362 (emphasis supplied) (quoting Pavoni, ante note 43, at
160).
The pertinence to the instant appeal of a case in which the CPIUN does
not appear to have been directly discussed—and whose holding is ambiguous
but likely grounded in implied waiver, a concept not at issue here—is, to say the
least, unclear.
16
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
Pls.’ Br. 31; A‐349–51. That case, Stavrinou v. United Nations, (1992) CLR
44
992, ILDC 929 (Cyprus 1292), is a 1992 case from the Supreme Court of Cyprus.
The plaintiffs rely on Stavrinou for the proposition that the Supreme Court of
Cyprus only granted immunity to the UN because an alternate forum was
available. Pls.’ Br. 31. We note, however, that the availability of an alternate
forum was held relevant only to the question of whether the grant of immunity
to the UN violated the Cypriot constitution. Id. (describing the Supreme Court of
Cyprus as holding that the grant of absolute immunity to the UN “did not
encroach upon the right of access to courts as protected by the Cypriot
Constitution, because the mechanism internal to the UNFICYP for settling
disputes with its local personnel ensured that ‘[t]he applicant was not left
without a remedy’”). That decision did not purport to interpret the CPIUN and is
therefore inapplicable to the instant case.
See Clukey v. Town of Camden, 797 F.3d 97, 101 (1st Cir. 2015) (“To
45
determine whether the . . . provision . . . creates a condition precedent, we
necessarily must focus closely on its specific language.”); see also ante notes 20–22
and accompanying text (discussing the importance of focusing on the particular
language of a treaty).
46 An agreement’s “overall structure” may also inform whether a term
constitutes a condition precedent. Univ. Emergency Med. Found. v. Rapier Invs.,
Ltd., 197 F.3d 18, 23 (1st Cir. 1999); see Suburban Transfer Serv., Inc. v. Beech
17
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 that the
agreement required the establishment of an alternative forum for
dispute resolution has little bearing on the interpretation of the
CPIUN in this case.
For these reasons, we hold that the UN’s fulfillment of its
Section 29 obligation is not a condition precedent to its Section 2
immunity.48
Holdings, Inc., 716 F.2d 220, 225 (3d Cir. 1983) (relying on “the structure of the
Agreement as a whole” in determining that one of the agreement’s provisions
was a condition precedent). But plaintiffs have also not argued that the structures
of the cited agreements are similar to that of the CPIUN.
47 Pls.’ Reply Br. 17.
The foregoing analysis is consistent with our decision in Brzak v. United
48
Nation, 597 F.3d 107, 112 (2d Cir. 2010), in which we held that the purported
inadequacies of the UN’s dispute resolution mechanism did not result in a
waiver of absolute immunity from suit.
18
II. Material Breach
Plaintiffs next argue that “[t]he District Court’s finding of
immunity was erroneous . . . because Section 29 is a material term to
the CPIUN as a whole.”49 According to plaintiffs, the UN’s material
breach of its Section 29 obligation means that it “is no longer entitled
to the performance of duties owed to it under” the CPIUN,
including its Section 2 immunity.50 We need not reach the merits of
this argument, however, because plaintiffs lack standing to raise it.
As we have recently reiterated, “absent protest or objection by
the offended sovereign, [an individual] has no standing to raise the
violation of international law as an issue.”51 The plaintiffs have not
identified any sovereign that has objected to the UN’s alleged
material breach. To the contrary, the United States has asked us to
affirm the District Court’s judgment, and no other country has
expressed an interest in this litigation.52
49 Pls.’ Br. 35.
50 Id. at 37.
51 United States v. Garavito‐Garcia, —F.3d—, 2016 WL 3568164, at *3 (2d
Cir. July 1, 2016) (internal quotation marks omitted); see United States v.
Emuegbunam, 268 F.3d 377, 390 (6th Cir. 2001) (“It is well established that
individuals have no standing to challenge violations of international treaties in
the absence of protest by the sovereign involved.” (internal quotation marks
omitted)).
See Government’s Br. 22 (“Because [plaintiffs] are not a party to [the
52
CPIUN] . . . , they may not independently assert an alleged breach and insist
upon their own preferred remedy.”).
19
It is true that there is an exception to this rule where a treaty
contains “express language” “creat[ing] privately enforceable
rights . . . , or some other indication that the intent of the treaty
drafters was to confer rights that could be vindicated in the manner
sought by . . . affected individuals,” such as plaintiffs in this case.53
“[B]ut [plaintiffs have] not identified, nor can we locate,” any such
indication in the CPIUN, and “[s]tanding is therefore lacking.”54
It is plaintiffs’ position that the case law described above is
“inapposite.”55 They contend that, “[r]egardless of whether a treaty
provides an enforceable private right of action, individuals may
invoke breach in a responsive posture.”56 In support of this position,
plaintiffs cite a law review article stating that “case law is consistent
with [the] understanding that a treaty may be enforced defensively
even when there is no private right of action.”57 But the same article
makes clear what it means by “defensive enforcement,” which it
United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015) (internal
53
quotation marks omitted).
54 Garavito‐Garcia, 2016 WL 3568164, at *3; see Medellín, 552 U.S. at 506 n.3
(“[T]he background presumption is that international agreements, even those
directly benefiting private persons, generally do not create private rights or
provide for a private cause of action in domestic courts.” (brackets and internal
quotation marks omitted)).
55 Pls.’ Reply Br. 20.
56 Id. at 21.
Id. at 22 (alteration omitted) (quoting Oona A. Hathaway, Sabria
57
McElroy & Sara Aronchick Solow, International Law at Home: Enforcing Treaties in
U.S. Courts, 37 Yale J. Int’l L. 51, 84 (2012)).
20
contends “can be found in two types of cases”: those in which a
private party uses a treaty (1) “to defend against a claim by the
United States government” or (2) “to defend against a claim by
another private party under state or federal law.”58 Neither of these
situations is presented here. No claim has been asserted against
plaintiffs; rather, it is plaintiffs who have asserted the claims
underlying this action. Accordingly, plaintiffs’ argument fails even
on its own terms.59
III. Right of Access to Federal Courts
Lastly, plaintiffs argue that the District Court erred
“because it violated the U.S. citizen Plaintiffs’ constitutional rights to
access the federal courts by applying immunity in this case.”60 This
argument fails to convince.
As we stated in Brzak v. United Nations, in which we rejected a
virtually indistinguishable challenge to an application of Section 2 of
the CPIUN, plaintiffs’ argument does little more “than question why
immunities in general should exist.”61 But “legislatively and
judicially crafted immunities of one sort or another have existed
since well before the framing of the Constitution, have been
58 Hathaway et al., ante note 57, at 84.
We express no opinion regarding the soundness of the distinction
59
drawn in the article between the offensive and defensive enforcement of treaties.
60 Pls.’ Br. 49.
61 See Brzak, 597 F.3d at 114.
21
extended and modified over time, and are firmly embedded in
American law.”62 Plaintiffs’ argument, if correct, would seem to
defeat not only the UN’s immunity, but also “judicial immunity,
prosecutorial immunity, and legislative immunity.”63 Plaintiffs do
not persuasively differentiate the quotidian and constitutionally
permissible application of these doctrines from application of
Section 2 of the CPIUN here.64
CONCLUSION
We have considered all of plaintiffs’ arguments on appeal and
find them to be without merit. Accordingly, we AFFIRM the District
Court’s January 15, 2015 judgment dismissing plaintiffs’ action for
lack of subject matter jurisdiction under the CPIUN.
62 Id.
63 Id.
Plaintiffs also argue that “[t]he District Court further erred in holding
64
that [individual defendants] Ban and Mulet are immune from suit.” Pls.’ Br. 47.
But plaintiffs’ only contention in support of this argument is that “UN officers
are not entitled to immunity under the CPIUN when the UN itself is not entitled
to immunity under the CPIUN.” Id. Because we have already rejected plaintiffs’
argument that the UN is not entitled to immunity, we must reject their argument
that Ban and Mulet are not entitled to immunity as well.
22