Between a rock and a hard place - immunities of the United Nations and human rights

The system of UN immunities results in violations of the human rights of individuals. UN immunities were enshrined at a time when immunities of States and their representatives were still developing, and therefore reflect outdated theories. Moreover, they were not designed for an international organisation undertaking significant external activities in the manner that has evolved over the past seven decades. In this contribution, we argue that it is time to revisit immunities, and to interpret and apply them in a manner that complies with international human rights law. The chapter explores the key issues by focusing on the UN and its peacekeeping activities, and demonstrating how and why there is the need for a human rights-based approach to immunities. In peacekeeping operations the UN acts externally, during which time it assumes sovereign or hybrid-sovereign powers. Our argument is that when the UN acts in this manner it ought to be treated in the same way as other sovereign or hybrid-sovereign powers. Therefore, we suggest, the UN is bound by the fundamental rights of individuals to access a court and a remedy. First, we set out the background to the current UN immunities and the historical reasons for how the current practice developed; we then turn to how the UN is bound by international human rights law, specifically focusing on the fundamental rights to access a court and a remedy; we then explore two case studies on organisational (Haiti cholera) and individual (sexual exploitation and abuse) immunities. The chapter concludes with the suggestion that there is a need for a rights-based approach to immunities.