The Remedy Gap : A Remedial Perspective to Third-Party Claims in United Nations Peacekeeping Operations from Srebrenica to Haiti

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http://urn.fi/URN:NBN:fi:hulib-201508063170
Titel: The Remedy Gap : A Remedial Perspective to Third-Party Claims in United Nations Peacekeeping Operations from Srebrenica to Haiti
Författare: Lundahl, Katarina
Medarbetare: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Utgivare: Helsingfors universitet
Datum: 2014
Språk: eng
Permanenta länken (URI): http://urn.fi/URN:NBN:fi:hulib-201508063170
http://hdl.handle.net/10138/135373
Nivå: pro gradu-avhandlingar
Ämne: International law
Kansainvälinen oikeus
Folkrätt
Abstrakt: When activities of a United Nations (UN) peacekeeping operation cause damage to third parties and the tort claim cannot be settled amicably, the injured third party does not have access to any remedies that could give effect to the recognized right to compensation. The thesis identifies and analyzes the content of the rules and practices of public international law and the internal law of the UN that give rise to this remedy gap. Further, based on the normative analysis, the thesis constructs and analyzes policy-oriented solutions to how the gap should be closed in order to safeguard the legitimate interests of both the UN and the injured party. Two recent cases related to the cholera epidemic in Haiti and the massacre in Srebrenica are used as case studies. The thesis identifies two principal factors that contribute to the emergence of the remedy gap: inadequacies related to the dispute settlement mechanism of third-party claims in the UN peacekeeping context and the organization's insurmountable immunity from suit before national courts. With regard to the former, the thesis distinguishes between problems related to the devised and actual mechanisms available for settling claims on the one hand, and inadequacies related to the determination of admissibility of tort claims on the other hand. It is submitted that the existing mechanism is inadequate as it leaves outside contentious claims without a legal justification. Further, the determination of admissibility based on the notion 'private-law claims' is uninformative on the international plane. An alternative and more precise model for testing admissibility based on the notion of justiciability is offered: if the standard principles of liability in tort can be determined by the adjudicative forum without having to review political decisions of the UN, tort claims should be receivable. With regard to the latter, the thesis distinguishes between the scope of UN immunity and human rights related arguments commonly used to overcome the bar of unqualified immunity. As regards the former, the thesis argues that lex lata the UN enjoys unqualified immunity due to the impossibility of finding a practicable test for 'functionality', and this immunity can only be lifted by express waiver that cannot be deduced from a commitment to settle disputes. The justification for comprehensive immunities is however greatly diminished where the organization fails to establish alternative modes of dispute settlement. As regards the human rights approach, the thesis analyzes whether the UN can be bound by duties for human rights vis-à-vis the claimants in a peacekeeping context; whether the claimants' right of access to court vis-à-vis the forum state can limit UN immunity; and finally whether a jus cogens hierarchy between immunity and human rights can solve the conflict to the latter's benefit. By applying institutional human rights theory and analyzing relevant case law, the thesis answers all three questions in the negative, and argues that human rights can only play the role of a policy imperative in UN peacekeeping. Linking the conflict between the internal legal order of the UN and the right of access to court to fragmentation, the thesis concludes that the former should accommodate the human rights regime by ensuring the availability of alternative modes of dispute settlement for third party tort claims arising in peacekeeping contexts. Based on the normative analysis, the thesis offers concrete policy recommendations for how the remedy gap should be closed. As for the dispute settlement mechanism, it is submitted that since the majority of tort claims in peacekeeping contexts are settled amicably, a new mechanism is not called for, and the UN should instead incur an obligation to arbitrate contentious cases. It is further submitted that the UN should devise an illustrative list of legal criteria to be applied by the selected adjudicatory forum in determining the admissibility of claims, taking into account the justiciability perspective offered in the study. The legal criteria should also comprehensively set out the applicable law, including internal customary law and general principles of tort law, to be applied to the merits of the claim. The recommendations would effectively remove the remedy gap, avoid the appearance of arbitrariness in the practice related to contentious tort claims, and promote the rule of law within the UN system.


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