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[p.777]
Applicability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations, Advisory Opinion, 1989 I.C.J[p.177]
Concerning the applicability of Article VI, Section 22, of the Convention on
the Privileges and Immunities of the United Nations,
The Court,
composed as above,
gives the following Advisory Opinion:
1. The question upon which the advisory opinion of the Court has been
requested is contained in resolution 1989/75 of the United Nations Economic
and Social Council (hereinafter called "the Council"), adopted on 24 May
1989. By a letter dated 1 June 1989, addressed by the Secretary-General of
the United Nations to the President of the Court, filed in the Registry on
13 June 1989, the Secretary-General formally communicated to the Court the
decision by which the Council submitted to the Court for an advisory opinion
the question set out in that resolution. The resolution, certified true
copies of the English and French texts of which were enclosed with the
letter, was in the following terms:
" The Economic and Social Council,
Having considered resolution 1988/37 of 1 September 1988 of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
and Commission on Human Rights resolution 1989/37 of 6 March 1989,
1. Concludes that a difference has arisen between the United Nations and the
Government of Romania as to the applicability of the Convention on the
Privileges and Immunities of the United Nations to Mr. Dumitru Mazilu as
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities;
2. Requests, on a priority basis, pursuant to Article 96, paragraph 2, of
the Charter of the United Nations and in accordance with General Assembly
resolution 89 (I) of 11 December 1946, an advisory opinion from the
International Court of Justice on the legal question of the applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations in the case of Mr. Dumitru Mazilu as Special
Rapporteur of the Sub-Commission."
Also enclosed with the letter were details of the voting on the resolution
and on an amendment to the draft thereof whereby the words "on a priority
basis" were added in paragraph 2.
2. On 14 June 1989 the Registrar gave the notice of the request for an
advisory opinion prescribed by Article 66, paragraph 1, of the Statute of
the Court to all States entitled to appear before the Court.
3. By an Order dated 14 June 1989 the President of the Court decided that
the United Nations and the States which are parties to the Convention on the
Privileges and Immunities of the United Nations adopted by the United
Nations General Assembly on 13 February 1946 (hereinafter called "the
General Convention") were likely to be able to furnish information on the
question, in accordance with Article 66, paragraph 2, of the Statute of the
Court. The President, having regard to that paragraph, and considering that
in fixing time-limits for the proceedings, it was "necessary to bear in mind
that the request for opinion was expressed to be made 'on a priority
basis'", fixed 31 July 1989 as the time-limit within which the Court would
be prepared to receive written [p 179] statements on the question and 31
August 1989 as the time-limit for written comments on written statements. On
14 June 1989 the Registrar addressed the special and direct communication
provided for in Article 66, paragraph 2, of the Statute to the United
Nations and to these States.
4. Written statements were submitted, within the time-limit so fixed, by the
Secretary-General of the United Nations, and by Canada, the Federal
Republic of Germany, the Socialist Republic of Romania and the United
States of America. Written comments were submitted, within the relevant
time-limit, by the United States of America. These statements and comments
were communicated by the Registrar to the States to which he had sent the
special and direct communication and to the United Nations.
5. The Secretary-General transmitted to the Court, pursuant to Article 65,
paragraph 2, of the Statute, a dossier of documents likely to throw light
upon the question; these documents were received in the Registry in
instalments from 2 August 1989 onwards.
6. The Court decided to hold hearings, opening on 4 October 1989, at which
oral statements might be submitted to the Court by any State or organization
which had been considered likely to be able to furnish information on the
question before the Court.
7. Pursuant to Article 106 of the Rules of Court, the Court decided to make
the written statements and comments submitted to the Court accessible to the
public, with effect from the opening of the oral proceedings.
8. At public sittings held on 4 and 5 October 1989, oral statements were
made before the Court by Mr. Carl-August Fleischhauer, the United Nations
Legal Counsel, on behalf of the Secretary-General, and by Mr. Abraham
Sofaer, Legal Adviser, Department of State, on behalf of the United States
of America. None of the other States which had presented written statements
expressed a desire to be heard. Questions were put by Members of the Court
to the representative of the Secretary-General, and answered before the
close of the oral proceedings.
**
9. Pursuant to Articles 55 (c) and 68 of the Charter of the United Nations,
the Council, by resolution 5 (I) of 16 February 1946, supplemented on 18
February 1946, created a Commission on Human Rights (hereinafter called
"the Commission"). In 1947 the Commission in its turn set up a
Sub-Commission on Prevention of Discrimination and Protection of Minorities
(hereinafter called "the Sub-Commission"), and in 1949 the Sub-Commission
was given the following mandate:
"(a) to undertake studies, particularly in the light of the Universal
Declaration of Human Rights and to make recommendations to the Commission on
Human Rights concerning the prevention of discrimination of any kind
relating to human rights and fundamental freedoms and the protection of
racial, national, religious and linguistic minorities; and[p 180]
(b) to perform any other functions which may be entrusted to it by the
Economic and Social Council or the Commission on Human Rights".
10. On 13 March 1984 the Commission, upon nomination by Romania, elected Mr.
Dumitru Mazilu, a Romanian national, to serve as a member of the
Sub-Commission for a three-year term, due to expire on 31 December 1986.
Pursuant to the Commission's resolution 1985/13 calling upon the
Sub-Commission to pay due attention to the role of youth in the field of
human rights, the Sub-Commission at its thirty-eighth session adopted on 29
August 1985 resolution 1985/12 whereby it requested Mr. Mazilu to
"prepare a report on human rights and youth analysing the efforts and
measures for securing the implementation and enjoyment by youth of human
rights, particularly, the right to life, education and work"
and requested the Secretary-General to provide him with all necessary
assistance for the completion of his task. This report was to be submitted
under an agenda item entitled "Promotion, protection and restoration of
human rights at national, regional and international levels", at the
thirty-ninth session of the Sub-Commission scheduled for 1986.
11. The thirty-ninth session of the Sub-Commission, at which Mr. Mazilu's
report was to be presented, was not convened in 1986 but was rescheduled for
1987. The three-year mandate of its members originally due to expire on
31 December 1986 was extended by Council decision 1987/102 for an
additional year. When the thirty-ninth session of the Sub-Commission opened
in Geneva on 10 August 1987 no report had been received from Mr. Mazilu, nor
was he present. By a letter received by the United Nations Office at Geneva
on 12 August 1987, the Permanent Mission of Romania to that Office informed
it that Mr. Mazilu had suffered a heart attack and was still in hospital.
In its written statement to the Court, Romania stated that Mr. Mazilu had
fallen seriously ill in May 1987, and that at that time he had not yet begun
to draw up the report entrusted to him. According to the written statement
of the Secretary-General, a telegram was received in Geneva on 18 August
1987 signed "D. Mazilu" informing the Sub-Commission of his inability, due
to heart illness, to attend the current session.
12. In these circumstances, the Sub-Commission adopted decision 1987/112 on
4 September 1987, whereby it deferred consideration of item 14 of its agenda
under which the report on human rights and youth was due to be discussed
to its fortieth session scheduled for 1988. Notwithstanding the scheduled
expiration on 31 December 1987 of Mr. Mazilu's term as a member of the
Sub-Commission, the latter included reference to a report to be submitted by
him, identified by [p 181] name, under the agenda item "Prevention of
discrimination and protection of children", on the provisional agenda of
its fortieth session, and entered the report under the title "Human rights
and youth" in the "List of studies and reports under preparation by members
of the Sub-Commission in accordance with the existing legislative
authority".
13. After the thirty-ninth session of the Sub-Commission, the Centre for
Human Rights of the United Nations Secretariat in Geneva made various
attempts to contact Mr. Mazilu and to provide him with assistance in the
preparation of his report, including arranging a visit to Geneva. Relevant
information submitted by Governments, intergovernmental organizations and
non-governmental organizations was sent to him on a regular basis. Having
received from Mr. Mazilu two letters postmarked 25 and 29 December 1987,
whereby he stated that he had not received the previous communications of
the Centre, the Under-Secretary-General for Human Rights, in a telegram
dated 19 January 1988 and addressed to the Acting Director of the United
Nations Information Centre in Bucharest, requested the latter's assistance
in facilitating Mr. Mazilu's work on his report by serving as a channel
through which a ticket to Geneva would be provided to Mr. Mazilu; the
Under-Secretary-General also asked that a formal invitation be communicated
to Mr. Mazilu to come to the Centre for Human Rights for consultations.
14. In its written statement submitted to the Court, Romania stated that at
Mr. Mazilu's request he had, from 1 December 1987, been put on the retired
list as being unfit for service, and that in 1988 a medical commission,
acting in accordance with current Romanian legislation, had re-examined Mr.
Mazilu's state of health and decided to extend for a further one-year period
his retirement on the grounds of continued unfitness for service. In a
letter addressed to the Under-Secretary-General for Human Rights, handed on
15 January 1988 to the Acting Director of the United Nations Information
Centre in Bucharest, Mr. Mazilu said that he had been twice in hospital, and
that he had been forced to retire, as of 1 December 1987, from his various
governmental posts. He stated that despite his willingness to come to Geneva
for consultations, the Romanian authorities were refusing him a travel
permit. In a series of letters dated 5 April, 19 April, 8 May and 17 May
1988, Mr. Mazilu further described his personal situation; in the first of
these letters he alleged that he had refused to comply with a request
addressed to him on 22 February 1988 by a special commission from the
Romanian Ministry of Foreign Affairs voluntarily to decline to submit his
report to the Sub-Commission. He consistently complained that strong
pressure had been exerted on him and on his family.
15. On 31 December 1987 the terms of all members of the Sub-Commission,
including Mr. Mazilu, expired (see paragraph 11 above). [p 182] On 29
February 1988 the Commission, upon nomination by their respective
Governments, elected new members of the Sub-Commission, among whom was Mr.
Ion Diaconu, a Romanian national. In response to a letter from the Permanent
Representative of Romania to the United Nations Office at Geneva, dated 27
June 1988, referring to an offer by Mr. Diaconu to prepare a report on human
rights and youth, the Under-Secretary-General for Human Rights recalled on 1
July 1988 that Mr. Mazilu had been mandated by the Sub-Commission resolution
1985/12 to prepare the report on that subject, and stated that only the
Sub-Commission or a superior body was competent to change the designation;
the Secretary-General had therefore to act pursuant to the instructions
given by the Sub-Commission in the said resolution "to provide all necessary
assistance to Mr. Dumitru Mazilu for the completion of this task".
16. Meanwhile, by a letter dated 6 May 1988 the Under-Secretary-General for
Human Rights requested the assistance of the Permanent Representative of
Romania to the United Nations Office at Geneva in transmitting to Mr. Mazilu
all relevant information which had been sub-mitted by Governments,
specialized agencies and non-governmental organizations, and which was
necessary for the completion of his report. By a letter of 15 June 1988, the
Under-Secretary-General informed the Permanent Representative of Romania
that, as an exceptional measure, he had decided to authorize a staff member
of the Centre for Human Rights to travel to Bucharest for the purpose of
working with Mr. Mazilu on his report, but only on the understanding that
Mr. Mazilu would be enabled to present his report to the Sub-Commission in
Geneva and to participate in the ensuing debate.
17. All the rapporteurs and special rapporteurs of the Sub-Commission were
invited to attend its fortieth session (8 August to 2 September 1988) and
the meetings of its working groups; however Mr. Mazilu again did not appear.
Following a discussion at the 2nd meeting, held on 9 August 1988, a special
invitation was cabled to Mr. Mazilu to go to Geneva to present his report,
but the relevant telegrams were not delivered, and the United Nations
Information Centre in Bucharest was unable to locate Mr. Mazilu. During the
debate at the 9th meeting, held on 15 August 1988, on the organization of
work of the session, various members expressed their views about Mr.
Mazilu's situation, and the Chairman stressed the two-fold aim of the
Sub-Commission, namely, to ensure that the study entrusted to Mr. Mazilu be
brought to a satisfactory conclusion, and to try to ensure its presentation
by Mr. Mazilu in person.
18. At its 10th meeting, held on 15 August 1988, the Sub-Commission adopted
decision 1988/102, whereby it requested the Secretary-General
"to establish contact with the Government of Romania and to bring to the
Government's attention the Sub-Commission's urgent need to [p 183] establish
personal contact with its Special Rapporteur Mr. Dumi-tru Mazilu and to
convey the request that the Government assist in locating Mr. Mazilu and
facilitate a visit to him by a member of the Sub-Commission and the
secretariat to help him in the completion of his study on human rights and
youth if he so wished".
The Under-Secretary-General for Human Rights informed the Sub-Commission at
its 14th meeting, held on 17 August 1988, that in contacts between the
Secretary-General's Office and the Charge d'affaires of the Romanian
Permanent Mission to the United Nations in New York, the possibility of
establishing contact with Mr. Mazilu was raised.
19. The Under-Secretary-General reported that in these contacts the Charge
d'affaires had stated that any intervention by the United Nations
Secretariat and any form of investigation in Bucharest would be considered
interference in Romania's internal affairs; the case of Mr. Mazilu was an
internal matter between a citizen and his own Government and for that reason
no visit to Mr. Mazilu would be allowed.
20. At its 32nd meeting, held on 30 August 1988, the Sub-Commission
considered a draft resolution contemplating that an advisory opinion on the
applicability of the General Convention to the case of Mr. Mazilu be sought
from the Court; it had before it an opinion by the Office of Legal Affairs
of the United Nations Secretariat on that question, and a further opinion
was obtained from that Office on the legal implications of the reservation
made by Romania to Section 30 (the disputes-settlement provision) of the
General Convention.
21. The Sub-Commission on 1 September 1988 adopted by 16 votes to 4, with 3
abstentions, resolution 1988/37. Taking into account that
"if Mr. Mazilu should be unable for whatever personal reasons to complete
and present himself the said report to the Sub-Commission, he should be
given any possible assistance by the United Nations enabling him to complete
his report, with such assistance, in Romania",
the Sub-Commission, according to the terms of the operative part,
"1. Requests the Secretary-General to approach once more the Government of
Romania and invoke the applicability of the Convention on the Privileges
and Immunities of the United Nations, and request the Government to
co-operate fully in the implementation of the present resolution by
ensuring that Mr. Mazilu's report be completed and presented to the
Sub-Commission at the [p 184] earliest possible date, either by himself or
in the manner indicated above;
2. Further requests the Secretary-General, in the event the Government of
Romania does not concur in the applicability of the provisions of the said
Convention in the present case, and thus with the terms of the present
resolution, to bring the difference between the United Nations and Romania
immediately to the attention of the Commission on Human Rights at its
forthcoming forty-fifth session in 1989;
3. Requests the Commission on Human Rights, in the latter event, to urge the
Economic and Social Council to request, in accordance with General Assembly
resolution 89 (I) of 11 December 1946, from the International Court of
Justice an advisory opinion on the applicability of the relevant provisions
of the Convention on the Privileges and Immunities of the United Nations to
the present case and within the scope of the present resolution."
22. Pursuant to the foregoing resolution the Secretary-General on 26 October
1988 addressed a Note Verbale to the Permanent Representative of Romania to
the United Nations in New York, in which he invoked the General Convention
in respect of Mr. Mazilu and requested the Romanian Government to accord Mr.
Mazilu the necessary facilities in order to enable him to complete his
assigned task. As no reply had been received to that Note Verbale, the
Under-Secretary-General for Human Rights on 19 December 1988 wrote a letter
of reminder to the Permanent Representative of Romania to the United Nations
Office at Geneva, in which he asked that the Romanian Government assist in
arranging for Mr. Mazilu to visit Geneva so that he could discuss with the
Centre for Human Rights the assistance it might give him in preparing his
report.
23. On 6 January 1989 the Permanent Representative of Romania handed to the
Legal Counsel of the United Nations an Aide-Mιmoire in which was set forth
the Romanian Government's position concerning Mr. Mazilu. On the facts of
the case, Romania stated that Mr. Mazilu, who had not prepared or produced
anything on the subject entrusted to him, had in 1987 become gravely ill
with a serious heart condition and had had repeatedly to go into hospital
over a period of several months. In November 1987, according to that
Aide-Mιmoire, he had "applied personally for disability retirement because
of this condition, submitting appropriate medical certificates"; "in
accordance with Romanian law, he was examined by a panel of doctors which
decided to place him on the retired list on grounds of ill-health for an
initial period of one year" ; "at the end of the first year of his
disability retirement, he was examined by a similar panel of doctors which
decided to extend his retirement on grounds of ill-health". [p 185]
24. On the law, Romania expressed the view in that Aide-Mιmoire that "the
problem of the application of the General Convention does not arise in this
case": the Convention "does not equate rapporteurs, whose activities are
only occasional, with experts on missions for the United Nations" ; and
"even if rapporteurs are given some of the status of experts,... they can
enjoy only functional immunities and privileges, that is, privileges
connected with their activities for the United Nations, during the period of
their mission, and then only in the countries in which they perform the
mission and in countries of transit".
For Romania, it was obvious that
"an expert does not enjoy privileges and immunities in the country in which
he has his permanent residence but only in the country in which he is on
mission and during the period of his mission. Likewise, the privileges and
immunities provided by the Conven-tion begin to apply only at the moment
when the expert leaves on a journey connected with the performance of his
mission."
Moreover,
"in the country of which he is a national and in countries other than the
country to which he is sent on mission, an expert enjoys privileges and
immunities only in respect of actual activities spoken or written which he
performs in connection with his mission".
Romania stated expressly that it was opposed to a request for advisory
opinion from the Court of any kind in this case. Similar contentions were
also put forward in the written statement presented by Romania to the Court
in the present proceedings.
25. At the forty-fifth session of the Commission in 1989, the
Secretary-General presented a Note "pursuant to paragraph 2 of resolution
1988/37 of the Sub-Commission" (see paragraph 21 above), to which was
attached his Note Verbale to the Romanian Government of 26 October 1988, and
the Romanian Aide-Mιmoire of 6 January 1989. The Commission adopted on 6
March 1989, by 26 votes to 5, with 12 abstentions, its resolution 1989/37
recommending that the Council request an advisory opinion from the Court.
The Council on 24 May 1989 adopted by 24 votes to 8, with 19 abstentions,
its resolution 1989/75 requesting an advisory opinion of the Court, as
recommended in Commission resolution 1989/37, on the legal question of the
applicability of Article VI, Section 22, of the General Convention in the
case of Mr. Mazilu as Special Rapporteur of the Sub-Commission.
* [p 186]
26. The Court has also been informed by the Secretary-General of the
following events which have occurred since the request for advisory opinion
was made. A report on human rights and youth prepared by Mr. Maz-ilu was
circulated as a document of the Sub-Commission bearing the date 10 July
1989; the text of this report had been transmitted by Mr. Mazilu to the
Centre for Human Rights in several instalments through various channels. At
a meeting held on 8 August 1989, the Sub-Commission decided, in accordance
with its practice, to invite Mr. Mazilu to participate in the meetings at
which his report was to be considered: no reply was received to the
invitation extended. By a Note Verbale dated 15 August 1989 from the
Permanent Mission of Romania to the United Nations Office at Geneva
addressed to that Office, the Permanent Mission referred to "the so-called
report" by Mr. Mazilu, expressed surprise "that the medical opinions made
available to the Centre for Human Rights ... have been ignored", and
continued:
"The fact that the Centre's administration has agreed, in these
circumstances, to sponsor the publication of some of Mr. Mazilu's ideas and
judgements under the auspices of the United Nations can only harm the
standing and credibility of the Organization."
In the view of Romania,
"Obviously since becoming ill in 1987, Mr. Dumitru Mazilu does not possess
the intellectual capacity necessary for making an objective, responsible and
unbiased analysis that could serve as the substance of a report consistent
with the requirements of the United Nations."
At its 40th meeting held on 1 September 1989, the Sub-Commission adopted, by
12 votes to 4 with 2 abstentions, resolution 1989/45 entitled "The report on
human rights and youth prepared by Mr. Dumitru Mazilu". The Sub-Commission
noted that Mr. Mazilu's report had been prepared in difficult circumstances
and that the relevant information collected by the Secretary-General
appeared not to have been delivered to Mr. Mazilu. The Sub-Commission inter
alia requested Mr. Mazilu to update his report and invited him to present it
in person to the Sub-Commission at its next session; it also requested the
Secretary-General to continue to gather and furnish to Mr. Mazilu
information relating to his study, and to provide Mr. Mazilu with all the
assistance he might need in updating his report, including consultations
with the Centre for Human Rights.
*
27. The question laid before the Court by the Council is, in the terms of
the resolution requesting the advisory opinion (resolution 1989/75, entitled
"Status of Special Rapporteurs"),
"the legal question of the applicability of Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations [p 187] in
the case of Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commission
[on the Prevention of Discrimination and the Protection of Minorities]".
According to the written statement submitted to the Court by the
Secretary-General,
"It should... be noted that while the Court has been asked about the
applicability of Section 22 of the Convention in the case of Mr. Mazilu, it
has not been asked about the consequences of that applicability, that is
about what privileges and immunities Mr. Mazilu might enjoy as a result of
his status and whether or not these had been violated."
During the oral proceedings, the representative of the Secretary-General,
when replying to a question put by a Member of the Court, observed that:
"it is suggestive of the Council's intention in adopting the resolution to
note that, having referred to a 'difference', it then did not attempt to
have that difference as a whole resolved by the question it addressed to the
Court. Rather ... the Council merely addressed a preliminary legal question
to the Court, which appears designed to clarify at most the general status
of Mr. Mazilu in respect of the Convention, without resolving the entire
issue that evidently separates the United Nations and the Government."
**
28. The present request for advisory opinion is the first request made by
the Council, pursuant to paragraph 2 of Article 96 of the Charter. That
paragraph provides that organs of the United Nations, other than the
General Assembly and the Security Council,
"which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the
scope of their activities".
Such authorization in respect of the Council was given by General Assembly
resolution 89 (I) of 11 December 1946. The question which is the subject of
the request, involving as it does the interpretation of an international
convention in order to determine its applicability, is a legal question.
Furthermore it is one arising within the scope of the activities of the
Council. As indicated in paragraph 10 above, Mr. Mazilu's assignment was
pertinent to a function and programme of the Council. The Commission is a
subsidiary organ of the Council, and the Sub-Commission, of which he was
appointed special rapporteur, is in turn a subsidiary organ of the
Commission. Accordingly, the request before the Court fulfils the conditions
of Article 96, paragraph 2, of the Charter of the United Nations. [p 188]
29. The Court has next to consider the contention of Romania, on the basis
of the reservation made by it to Section 30 of the General Convention, that
the Court "cannot find that it has jurisdiction to give an advisory opinion"
in the present case. Section 30 of the General Convention provides:
"All differences arising out of the interpretation or application of the
present convention shall be referred to the International Court of Justice,
unless in any case it is agreed by the parties to have recourse to another
mode of settlement. If a difference arises between the United Nations on the
one hand and a Member on the other hand, a request shall be made for an
advisory opinion on any legal question involved in accordance with Article
96 of the Charter and Article 65 of the Statute of the Court. The opinion
given by the Court shall be accepted as decisive by the parties."
Romania acceded to the General Convention, and its instrument of accession
was deposited with the Secretary-General on 5 July 1956. The instrument of
accession contained the following reservation:
"The Romanian People's Republic does not consider itself bound by the terms
of section 30 of the Convention which provide for the compulsory
jurisdiction of the International Court in differences arising out of the
interpretation or application of the Convention; with respect to the
competence of the International Court in such differences, the Romanian
People's Republic takes the view that, for the purpose of the submission of
any dispute whatsoever to the Court for a ruling, the consent of all the
parties to the dispute is required in every individual case. This
reservation is equally applicable to the provisions contained in the said
section which stipulate that the advisory opinion of the International
Court is to be accepted as decisive."
30. It is claimed by Romania that, because of the reservation made by it to
Section 30, the United Nations cannot, without Romania's consent, submit a
request for advisory opinion in respect of its difference with Romania. The
reservation, it is said, subordinates the competence of the Court to "deal
with any dispute that may have arisen between the United Nations and
Romania, including a dispute within the framework of the advisory
procedure," to the consent of the parties to the dispute. Romania points
out that it did not agree that an opinion should be requested of the Court
in the present case and concludes that the Court is without jurisdiction.
31. The jurisdiction of the Court under Article 96 of the Charter and
Article 65 of the Statute, to give advisory opinions on legal questions,
enables United Nations entities to seek guidance from the Court in order to
conduct their activities in accordance with law. These opinions are
advisory, not binding. As the opinions are intended for the guidance of [p
189] the United Nations, the consent of States is not a condition precedent
to the competence of the Court to give them. As the Court observed in 1950,
"The consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases. The situation is different in regard to
advisory proceedings even where the Request for an Opinion relates to a
legal question actually pending between States. The Court's reply is only of
an advisory character: as such, it has no binding force. It follows that no
State, whether a Member of the United Nations or not, can prevent the giving
of an Advisory Opinion which the United Nations considers to be desirable in
order to obtain enlightenment as to the course of action it should take. The
Court's Opinion is given not to the States, but to the organ which is
entitled to request it; the reply of the Court, itself an 'organ of the
United Nations', represents its participation in the activities of the
Organization, and, in principle, should not be refused." (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71.)
This reasoning is equally valid where it is suggested that a legal question
is pending, not between two States, but between the United Nations and a
member State.
32. Romania however relies on its reservation to Section 30 of the General
Convention; but that Section operates on a different plane and in a
different context from that of Article 96 of the Charter. When the
provisions of the Section are read in their totality, it is clear that
their object is to provide a dispute settlement mechanism. The first
sentence of the Section provides for the case where a difference arises out
of the interpretation or application of the General Convention between
States parties to it, and contains two elements. The first is the treaty
obligation to refer the difference to the Court, unless another mode of
settlement is decided upon by the parties; the second is the object of the
reference to the Court, namely to settle the difference.
33. The United Nations is itself intimately, and for the most part directly,
concerned with the operation of the General Convention. Section 30 was
therefore so framed as to take in also the settlement of differences between
the United Nations and a State party to the General Convention. If such a
difference arises,
"a request shall be made for an advisory opinion on any legal question
involved in accordance with Article 96 of the Charter and Article 65 of the
Statute of the Court. The opinion given by the Court shall be accepted as
decisive by the parties."
This provision pursues the same intent as expressed in the first sentence of
Section 30; the particular nature of the proceeding contemplated is
attributable to the status as an international organization of one of the
parties to the difference. [p 190]
34. In case of a request for an advisory opinion made under Section 30, the
Court would of course have to consider any reservation which a party to the
dispute had made to that Section. In the particular case of Romania, the
Court would have to consider whether the effect of its reservation could be
to act as a bar to the operation of the procedure of request for advisory
opinion, or merely to deprive any opinion given of the decisive effect
attributed to such opinions by Section 30. But in the present case, the
resolution requesting the advisory opinion made no reference to Section 30,
and it is evident from the dossier that, in view of the existence of the
Romanian reservation, it was not the intention of the Council to invoke
Section 30. The request is not made under that Section, and the Court does
not therefore need to determine the effect of the Romanian reservation to
that provision.
35. Romania however contends that although the Council resolution 1989/75
dated 24 May 1989 does not allude to Section 30 of the General Convention as
the basis of its request for advisory opinion, the question which it raises
nevertheless relates to the applicability of a substantive provision of the
General Convention "to a concrete case considered to be a dispute between a
State party to the Convention and the United Nations". It argues that
"If it were accepted that a State party to the Convention, or the United
Nations, might ask for disputes concerning the application or interpretation
of the Convention to be brought before the Court on a basis other than the
provisions of Section 30 of the Convention, that would disrupt the unity of
the Convention, by separating the substan-tive provisions from those
relating to dispute settlement, which would be tantamount to a modification
of the content and extent of the obligations entered into by States when
they consented to be bound by the Convention."
However, the nature and purpose of the present proceedings are, as explained
above, that of a request for advice on the applicability of a part of the
General Convention, and not the bringing of a dispute before the Court for
determination. Furthermore, the "content and extent of the obligations
entered into by States" and, in particular, by Romania "when they
consented to be bound by the Convention" are not modified by the request and
by the present advisory opinion.
*
36. The Court thus finds that the reservation made by Romania to Section 30
of the General Convention does not affect the Court's jurisdiction to
entertain the present request.
*
37. While, however, the absence of the consent of Romania to the present
proceedings can have no effect on the jurisdiction of the Court, it is a
matter to be considered when examining the propriety of the Court [p 191]
giving an opinion. It is well settled in the Court's jurisprudence that when
a request is made under Article 96 of the Charter by an organ of the United
Nations or a specialized agency for an advisory opinion by way of guidance
or enlightenment on a question of law, the Court should entertain the
request and give its opinion unless there are "compelling reasons" to the
contrary. In the Western Sahara case the Court adverted to a possible
situation in which such a "compelling reason" might be present. In that
case, commenting on its observations in the Interpretation of Peace
Treaties case, to the effect that its competence to give an opinion does not
depend on the consent of the interested States, the Court observed:
"the Court recognized that lack of consent might constitute a ground for
declining to give the opinion requested if, in the circumstances of a given
case, considerations of judicial propriety should oblige the Court to refuse
an opinion. In short, the consent of an interested State continues to be
relevant, not for the Court's competence, but for the appreciation of the
propriety of giving an opinion.
33. In certain circumstances, therefore, the lack of consent of an
interested State may render the giving of an advisory opinion incompatible
with the Court's judicial character. An instance of this would be when the
circumstances disclose that to give a reply would have the effect of
circumventing the principle that a State is not obliged to allow its
disputes to be submitted to judicial settlement without its consent. If such
a situation should arise, the powers of the Court under the discretion given
to it by Article 65, paragraph 1, of the Statute, would afford sufficient
legal means to ensure respect for the fundamental principle of consent to
jurisdiction." (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p.
25, paras. 32-33.)
38. In view of the emphasis placed by Romania on its reservation to Article
30 of the General Convention and the absence of its consent to the present
request for advisory opinion, the Court must consider whether in this case
"to give a reply would have the effect of circumventing the principle that
a State is not obliged to allow its disputes to be submitted to judicial
settlement without its consent". The Court considers that in the present
case to give a reply would have no such effect. Certainly the Council, in
its resolution requesting the opinion, did conclude that a difference had
arisen between the United Nations and the Government of Romania as to the
applicability of the Convention to Mr. Dumitru Mazilu. But this difference,
and the question put to the Court in the light of it, are not to be confused
with the dispute between the United Nations and Romania with respect to the
application of the General Convention in the case of Mr. Mazilu.
39. In the present case, the Court thus does not find any compelling reason
to refuse an advisory opinion. The Court will therefore proceed [p 192] now
to reply to the legal question on which such an opinion has been requested.
**
40. In order to determine the applicability of Article VI, Section 22, of
the General Convention, to special rapporteurs of the Sub-Commission, and
its applicability in the case of Mr. Dumitru Mazilu, the Court must first
ascertain the meaning of that text.
41. According to Article 105, paragraph 1, of the Charter of the United
Nations
"The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfilment of its
purposes."
Furthermore, according to Article 105, paragraph 2,
"Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in connection with
the Organization."
Lastly, Article 105, paragraph 3, states that the General Assembly "may
propose conventions to the Members of the United Nations" with a view to
determining the details of the application of paragraphs 1 and 2.
42. Acting in conformity with Article 105 of the Charter, the General
Assembly approved the General Convention on 13 February 1946 and proposed it
for accession by each Member of the United Nations. One hundred and
twenty-four States, including Romania, are parties to the Convention.
43. As contemplated by Article 105 of the Charter, the General Convention
determines the privileges and immunities enjoyed by the United Nations as
such (Arts. II and III), lays down the privileges and immunities of the
representatives of Members of the United Nations (Art. IV), and defines
those of the officials of the Organization (Art. V). It contains in addition
an Article VI entitled "Experts on Missions for the United Nations", divided
into two Sections. Section 22 provides as follows:
"Experts (other than officials coming within the scope of Article V)
performing missions for the United Nations shall be accorded such privileges
and immunities as are necessary for the independent exercise of their
functions during the period of their missions, including the time spent on
journeys in connection with their missions. In particular they shall be
accorded:
(a) immunity from personal arrest or detention and from seizure of their
personal baggage;
(b) in respect of words spoken or written and acts done by them in [p 193]
the course of the performance of their mission, immunity from legal process
of every kind. This immunity from legal process shall continue to be
accorded notwithstanding that the persons concerned are no longer employed
on missions for the United Nations;
(c) inviolability for all papers and documents ;
(d) for the purpose of their communications with the United Nations, the
right to use codes and to receive papers or correspondence by courier or in
sealed bags ;
(e) the same facilities in respect of currency or exchange restrictions as
are accorded to representatives of foreign governments on temporary official
missions ;
(f) the same immunities and facilities in respect of their personal baggage
as are accorded to diplomatic envoys."
Section 23 adds :
"Privileges and immunities are granted to experts in the interests of the
United Nations and not for the personal benefit of the individuals
themselves. The Secretary-General shall have the right and the duty to waive
the immunity of any expert in any case where, in his opinion, the immunity
would impede the course of justice and it can be waived without prejudice to
the interests of the United Nations."
Finally, Article VII, Section 26, of the General Convention grants certain
facilities to experts when travelling on the business of the Organization.
44. The Court will examine the applicability of Section 22 ratione
per-sonae, ratione temporis and ratione loci, that is to say it will
consider first what is meant by "experts on missions" for the purposes of
Section 22, and then the meaning to be attached to the expression "period of
[the] missions", before considering the position of experts in their
relations with the States of which they are nationals or on the territory of
which they reside.
45. The General Convention gives no definition of "experts on missions". All
it does is to clarify two points, one negative and the other positive. From
Section 22 it is clear, first that the officials of the Organization, even
if chosen in consideration of their technical expertise in a particular
field, are not included in the category of experts within the meaning of
that provision; and secondly that only experts performing missions for the
United Nations are covered by Section 22. The Section does not, however,
furnish any indication of the nature, duration or place of these missions.
46. Nor is there really any guidance in this respect to be found in the
travaux prιparatoires of the General Convention. The Convention was
initially drafted and submitted to the General Assembly by the Preparatory
[p 194] Commission set up at San Francisco in June 1945; that initial draft
did not contain anything corresponding to the present Article VI. That
article was added by the Sub-Commission on Privileges and Immunities
established by the Sixth Committee to examine the draft, but the
contemporary official records do not make it possible to ascertain the
reasons for the addition.
47. The purpose of Section 22 is nevertheless evident, namely, to enable
the United Nations to entrust missions to persons who do not have the status
of an official of the Organization, and to guarantee them "such privileges
and immunities as are necessary for the independent exercise of their
functions". The experts thus appointed or elected may or may not be
remunerated, may or may not have a contract, may be given a task requiring
work over a lengthy period or a short time. The essence of the matter lies
not in their administrative position but in the nature of their mission.
48. In practice, according to the information supplied by the
Secretary-General, the United Nations has had occasion to entrust missions
increasingly varied in nature to persons not having the status of United
Nations officials. Such persons have been entrusted with mediation, with
preparing reports, preparing studies, conducting investigations or finding
and establishing facts. They have participated in certain peacekeeping
forces, technical assistance work, and a multitude of other activities. In
addition, many committees, commissions or similar bodies whose members
serve, not as representatives of States, but in a personal capacity, have
been set up within the Organization; for example the International Law
Commission, the Advisory Committee on Administrative and Budgetary
Questions, the International Civil Service Commission, the Human Rights
Committee established for the implementation of the International Covenant
on Civil and Political Rights, and various other committees of the same
nature, such as the Committee on the Elimination of Racial Discrimination or
the Committee on the Elimination of All Forms of Discrimination Against
Women. In all these cases, the practice of the United Nations shows that the
persons so appointed, and in particular the members of these committees and
commissions, have been regarded as experts on missions within the meaning of
Section 22.
49. According to that Section, experts enjoy the privileges and immunities
therein provided for "during the period of their missions, including the
time spent on journeys". The question thus arises whether experts are
covered by Section 22 only during missions requiring travel or whether they
are also covered when there is no such travel or apart from such travel. To
answer this question, it is necessary to determine the meaning of the word
"mission" in French and "mission" in English, the two languages in which the
General Convention was adopted. Initially, in keeping with its Latin
derivation, the word referred to a task entrusted to a person only if that
person was sent somewhere to perform it. It implied a journey. The same
connotation is apparent in the words, of the same derivation, "emis-[p
195]sary", "missionary" and "missive". The French word "mission", and the
English word "mission", have however long since acquired a broader meaning
and nowadays embrace in general the tasks entrusted to a person, whether or
not those tasks involve travel.
50. The Court considers that Section 22, in its reference to experts
performing missions for the United Nations, uses the word "mission" in a
general sense. While some experts have necessarily to travel in order to
perform their tasks, others can perform them without having to travel. In
either case, the intent of Section 22 is to ensure the independence of such
experts in the interests of the Organization by according them the
privileges and immunities necessary for the purpose. In some cases these
privileges and immunities are designed to facilitate the travel of experts
and their stay abroad, for instance those concerning seizure or searching of
personal baggage. In other cases, however, they are of a far more general
nature, particularly with respect to communications with the United Nations
or the inviolability of papers and documents. Accordingly, Section 22 is
applicable to every expert on mission, whether or not he travels.
51. The question whether experts on missions can invoke these privileges
and immunities against the States of which they are nationals or on the
territory of which they reside has also been raised. In this connection, the
Court notes that Section 15 of the General Convention provides that the
terms of Article IV, Sections 11,12 and 13, relating to the representatives
of Members "are not applicable as between a representative and the
authorities of the State of which he is a national or of which he is or has
been the representative". Article V, concerning officials of the
Organization, and Article VI, concerning experts on missions for the United
Nations, do not, however, contain any comparable rule. This difference of
approach can readily be explained. The privileges and immunities of Articles
V and VI are conferred with a view to ensuring the independence of
international officials and experts in the interests of the Organization.
This independence must be respected by all States including the State of
nationality and the State of residence. Some States parties to the General
Convention (Canada, the Lao People's Democratic Republic, Nepal, Thailand,
Turkey and the United States of America) have indeed entered reservations to
certain provisions of Article V, or of Article VI itself (Mexico and the
United States of America), as regards their nationals or persons habitually
resident on their territory. The very fact that it was felt necessary to
make such reservations confirms the conclusion that, in the absence of such
reservations, experts on missions enjoy the privileges and immunities
provided for under the Convention in their relations with the States of
which they are nationals or on the territory of which they reside.
52. To sum up, the Court takes the view that Section 22 of the General [p
196] Convention is applicable to persons (other than United Nations
officials) to whom a mission has been entrusted by the Organization and who
are therefore entitled to enjoy the privileges and immunities provided for
in this Section with a view to the independent exercise of their functions.
During the whole period of such missions, experts enjoy these functional
privileges and immunities whether or not they travel. They may be invoked as
against the State of nationality or of residence unless a reservation to
Section 22 of the General Convention has been validly made by that State.
**
53. In the light of the foregoing, the Court will now consider the
situation of special rapporteurs of the Sub-Commission. This is a question
which touches on the legal position of rapporteurs in general, a category of
persons whom the United Nations and the specialized agencies find it
necessary to engage for the implementation of increasingly varied
functions, and is thus one of importance for the whole of the United
Nations system.
54. The establishment in 1946 of the Commission, and the establishment in
1947 of the Sub-Commission and the definition in 1949 of its mandate, have
been described in paragraph 9 above. On 28 March 1947, the Council decided
that the Sub-Commission would be composed of 12 eminent persons, designated
by name, subject to the consent of their respective national Governments.
Subsequently the members of the Sub-Commission, at present 25 in number,
were chosen by the Human Rights Commission under similar conditions, and the
Council in resolution 1983/32 of 27 May 1983, expressly "recall[ed]... that
members of the Sub-Commission are elected by the Commission on Human Rights
as experts in their individual capacity", and concluded that their
alternates should therefore be elected and should serve on the same basis.
The members of the Sub-Commission, since their status is neither that of a
representative of a member State nor that of a United Nations official, and
since they perform independently for the United Nations functions
contemplated in the remit of the Sub-Commission, must be regarded as experts
on missions within the meaning of Section 22.
55. In accordance with the practice followed by many United Nations bodies,
the Sub-Commission has from time to time appointed rapporteurs or special
rapporteurs with the task of studying specified subjects. These rapporteurs
or special rapporteurs are normally selected from among members of the
Sub-Commission. However, over the past ten years, special rapporteurs have,
on at least three occasions, been appointed from outside the Sub-Commission.
Furthermore, in numerous cases, special rapporteurs appointed from among
members of the Sub-Commission [p 197] have completed their reports only
after their membership of the Sub-Commission had expired. In any event,
rapporteurs or special rapporteurs are entrusted by the Sub-Commission with
a research mission. Their functions are diverse, since they have to compile,
analyse and check the existing documentation on the problem to be studied,
prepare a report making appropriate recommendations, and present the report
to the Sub-Commission. Since their status is neither that of a
representative of a member State nor that of a United Nations official, and
since they carry out such research independently for the United Nations,
they must be regarded as experts on missions within the meaning of Section
22, even in the event that they are not, or are no longer, members of the
Sub-Commission. Consequently they enjoy, in accordance with Section 22, the
privileges and immunities necessary for the exercise of their functions,
and in particular for the establishment of any contacts which may be useful
for the preparation, the drafting and the presentation of their reports to
the Sub-Commission.
**
56. Having thus pronounced on the applicability of Section 22 to special
rapporteurs of the Sub-Commission, the Court must now give its opinion on
the question of the applicability of this provision in the case of Mr.
Dumitru Mazilu.
57. As has been noted earlier (paragraph 10 above), Mr. Dumitru Mazilu was
elected a member of the Sub-Commission on 13 March 1984. On 29 August 1985
the Sub-Commission requested him to prepare a report on human rights and
youth. The mandate of Mr. Mazilu as a member of the Sub-Commission expired
on 31 December 1987. On that date, the report requested on human rights and
youth had not been submitted and Mr. Mazilu was retained as special
rapporteur by decisions or resolutions of the Sub-Commission adopted on 4
September 1987, 15 August 1988 and 1 September 1988 (paragraphs 12, 18 and
21 above). The Sub-Commission subsequently received a report by Mr. Mazilu,
which was published on 10 July 1989; and by its resolution 1989/45 of 1
September 1989 (paragraph 26 above), the Sub-Commission once again retained
Mr. Mazilu as special rapporteur, and requested him to update his report in
the light of, inter alia, the information collected for him by the
Secretary-General. Thus from 13 March 1984 to 29 August 1985 Mr. Mazilu had
the status of member of the Sub-Commission. From 29 August 1985 to 31
December 1987, he was both a member and a rapporteur of the Sub-Commission.
Finally, although since the last-mentioned date he has no longer been a
member of the Sub-Commission, he has remained one of its special
rapporteurs. At no time during this period, therefore, has he ceased to have
the status of an expert on mission within the meaning of Section 22, or
ceased to be entitled to enjoy for the exercise of his functions the
privileges and immunities provided for therein. [p 198]
58. Doubt was nevertheless expressed by Romania whether Mr. Maz-ilu was
capable of performing his task as special rapporteur. Romania emphasized
that he had been taken seriously ill in May 1987, and had therefore been
placed on the retired list pursuant to decisions taken by the competent
medical practitioners, in accordance with the applicable Romanian
legislation; according to the Romanian written statement, he was at that
time still unable to carry out his mandate as special rapporteur. Mr. Mazilu
himself informed the United Nations that the state of his health did not
prevent him from preparing the report entrusted to him or from going for
this purpose to the Centre for Human Rights in Geneva. When a report by Mr.
Mazilu was circulated as a document of the Sub-Commission, Romania expressed
the view that it was obvious that "since becoming ill in 1987, Mr. Dumitru
Mazilu does not possess the intellectual capacity necessary" for the
preparation of "a report consistent with the requirements of the United
Nations" (paragraph 26 above).
59. It is not for the Court to pronounce on the state of Mr. Mazilu's
health, or on its consequences on the work he has done or is to do for the
Sub-Commission. It is sufficient for it to note, first that it was for the
United Nations to decide whether in the circumstances it wished to retain
Mr. Mazilu as special rapporteur, and secondly to take note that decisions
to that effect have been taken by the Sub-Commission.
60. In these circumstances Mr. Mazilu continues to have the status of
special rapporteur, and as a consequence must be regarded as an expert on
mission within the meaning of Section 22 of the General Convention. That
Section is accordingly applicable in the case of Mr. Mazilu.
***
61. For these reasons,
The Court,
Unanimously,
Is of the opinion that Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations is applicable in the case of
Mr. Dumitru Mazilu as a special rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of December, one thou-[p
199]sand nine hundred and eighty-nine, in two copies, one of which will be
placed in the archives of the Court and the other transmitted to the
Secretary-General of the United Nations.
(Signed) Josι Maria Ruda,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judges Oda, Evensen and Shahabuddeen append separate opinions to the
Advisory Opinion of the Court.
(Initialled) J.M.R.
(Initialled) E.V.O.
[p 200] Separate opinion of judge Oda
1. I agree with the Court's Opinion that
"Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations is applicable in the case of Mr. Dumitru Mazilu as a
special rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities." (Para. 61.)
I wonder, however, whether the Court, by simply giving this answer, has
adequately responded to what the Economic and Social Council had in mind
when formulating resolution 1989/75, in which it requested the Court, "on a
priority basis", to give an opinion
"on the legal question of the applicability of Article VI, Section 22, of
the Convention ... in the case of Mr. Dumitru Mazilu as Special Rapporteur
of the Sub-Commission." (Emphasis added.)
To my mind, this question would have been framed more restrictively if all
that was desired was an unelaborated "yes" or "no" answer. The way it was
actually framed gave scope, I believe, to certain pronouncements on the
modalities of the application of Section 22 of the Convention to the case of
Mr. Mazilu.
**
2. As is stated in the Preamble to its resolution, the Economic and Social
Council made that request after
"[h]aving considered resolution 1988/37 of 1 September 1988 of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
and Commission on Human Rights resolution 1989/37 of 6 March 1989".
The background to the request for an advisory opinion made to the Court by
the Council may be reconstructed in a slightly different manner from that
adopted by the Court, as I consider that greater emphasis could have been
laid upon some facts which are more directly relevant to the motives of the
Council in submitting the request.
3. Mr. Mazilu, then a member of the Sub-Commission whose term was to expire
on 31 December 1987, had been requested by the Sub-Commis-[p 201]sion to
prepare a report on human rights and youth (resolution 1985/12 of 29 August
1985). Relevant information had been regularly despatched to him from the
United Nations Centre for Human Rights in Geneva. However, when the 1987
session of the Sub-Commission opened in Geneva on 10 August 1987, Mr. Mazilu
had not presented a report and was absent from the meeting. On 12 August
1987, the Sub-Commission was informed that the Secretariat had just received
a letter from the Permanent Mission of Romania in Geneva, by which it had
been informed that Mr. Mazilu had suffered a heart attack in June and had
been told that, as he was still in hospital, he would not be able to travel
to Geneva. A telegram bearing the name "D. Mazilu", received on 18 August
1987 by the Secretariat, likewise conveyed a message that he was unable to
attend the current session due to heart illness. On 4 September 1987, the
Sub-Commission decided to defer until the 1988 session its consideration of
the agenda item under which the report to be submitted by Mr. Mazilu was to
have been discussed.
4. Subsequently, the Under-Secretary-General for Human Rights in Geneva
attempted, by means of a letter of 3 November and a cable of 17 December
1987, to contact Mr. Mazilu and provide him with assistance in the
preparation of his report, including arrangements for him to travel to
Geneva. The Centre received from Mr. Mazilu two letters postmarked 25 and 29
December 1987 in which he said that he had not received its previous
communications, including the invitation to the 1987 session, and that he
could not obtain permission from his Government to come to the session in
Geneva. In neither of those letters did Mr. Mazilu make any reference to
having suffered from an illness. The Under-Secretary-General for Human
Rights tried, on 19 January 1988, to make contact with Mr. Mazilu through
the United Nations Information Centre in Bucharest and sent a formal
invitation asking Mr. Mazilu to come to the Centre in Geneva for
consultations during the two-week period from 15 February 1988.
5. In an undated letter addressed to the Under-Secretary-General, that was
handed to the Acting Director of the Information Centre in Bucharest on 15
January 1988 and received in Geneva on 1 February 1988, Mr. Mazilu stated
that he had been isolated from contacts with the Centre for Human Rights in
Geneva and "because of this impossible situation, [he had] suffered very
much". He had twice been in hospital and had been forced to retire, as of 1
December 1987, from his post in the Ministry of Foreign Affairs. He went on
to say that, despite his willingness to come to Geneva for consultations,
the Romanian authorities had refused him a travel permit. He further stated
that he was "ready to go to the Centre at 14 February this year". In a
series of six letters dated 5 April, 19 April (two of this date), 8 May (two
of this date) and 17 May 1988, Mr. Mazilu further described his personal
situation: in the first he declared that he had refused to comply with a
request addressed to him on 22 February 1988 by a special commission from
the Ministry of Foreign Affairs and [p 202] asking him to cable the
Under-Secretary-General to say that he would not be able to prepare his
report and to suggest that the task be handed over to another expert. He
consistently complained that various kinds of strong pressure had been
exerted on him and his family.
6. By a letter of 6 May 1988, the Under-Secretary-General for Human Rights
requested the assistance of the Permanent Representative of Romania in
Geneva in transmitting to Mr. Mazilu all the relevant information that he
needed for the completion of his report. On the same day, the
Under-Secretary-General suggested to Mr. Mazilu that he should travel to
Geneva for the period extending from 30 May to 10 June 1988. By a letter
dated 15 June 1988, the Under-Secretary-General informed the Permanent
Representative of Romania that he had decided, as an exceptional measure, to
authorize a staff member of the Centre for Human Rights to travel to
Bucharest for the purpose of working with Mr. Mazilu on the draft of his
report, on the understanding that Mr. Mazilu would be enabled to travel to
Geneva to present his report to the Sub-Commission and participate in the
ensuing debate. In a letter of 27 June 1988 the Permanent Representative of
Romania, without directly responding on that point, simply referred to an
offer to prepare a report on human rights and youth which had been made on
29 March 1988 to the Chairman of the Sub-Commission by a new Romanian member
of the Sub-Commission for the term starting 1988, and which his Mission had
transmitted to the Centre on 8 April 1988. On 1 July 1988, the
Under-Secretary-General re-stated to the Permanent Representative of Romania
his previous decision, which would have entailed Mr. Mazilu's paying a short
visit to Geneva.
7. Mr. Mazilu, who was no longer a member of the Sub-Commission but remained
entrusted with the completion of a report on human rights and youth, was
once again absent when the 1988 session of the Sub-Commission opened in
Geneva on 8 August 1988. Further to a decision taken at its meeting on 9
August 1988 to discuss the organization of work, a special invitation was
cabled to Mr. Mazilu to come to Geneva to present his report. The telegram
was not delivered, and the United Nations Information Centre in Bucharest
was unable to locate Mr. Mazilu. On 15 August 1988, the Sub-Commission
adopted decision 1988/102, whereby it requested the United Nations
Secretary-General to establish contact with the Government of Romania. On 17
August 1988, the Under-Secretary-General informed the Sub-Commission that in
those contacts the Charge d'affaires of the Permanent Mission of Romania in
New York had stated that Mr. Mazilu had been ill and had retired from the
Foreign Office, so that he had been unable to proceed with his study for the
report. He also made it clear that any intervention by the United Nations
Secretariat and any form of investigation in Bucharest would be seen by his
Government as an intervention in Romania's internal affairs. Romania held
the view that the case of Mr. Mazilu was an internal [p 203] matter between
a citizen and his own Government, and for that reason no visit to Mr. Mazilu
would be allowed.
* 8. It was in these circumstances that, on 1 September 1988, the
Sub-Commission adopted resolution 1988/37, in which it asked the
Secretary-General to "invoke [to the Government of Romania] the
applicability of the Convention" and requested that Government "to
co-operate fully in the implementation of the ... resolution by ensuring
that Mr. Mazilu's report be completed and presented to the Sub-Commission at
the earliest possible date". The Sub-Commission further requested the
Secretary-General "in the event the Government of Romania does not concur
in the applicability of the provisions of the said Convention in the present
case" "to bring the difference between the United Nations and Romania
immediately to the attention of the Commission on Human Rights at its [1989]
session". The Sub-Commission also requested the Commission on Human Rights,
"in the latter event", "to urge the Economic and Social Council to
request... from the International Court of Justice an advisory opinion on
the applicability of the relevant provisions of the Convention ... to [that]
case".
9. Pursuant to this resolution of the Sub-Commission, the Secretary-General,
on 26 October 1988, addressed a Note Verbale to the Permanent Representative
of Romania in New York in which, referring to the legal opinion given by the
United Nations Legal Counsel on 23 August 1988, he invoked the Convention on
the Privileges and Immunities of the United Nations in respect of Mr. Mazilu
and requested the Romanian Government to accord the necessary facilities to
Mr. Mazilu in order to enable him to complete his assigned task. As no reply
was received, the Under-Secretary-General for Human Rights then sent a
letter of reminder on 19 December 1988 to the Permanent Representative of
Romania in Geneva.
10. On 6 January 1989, the Permanent Representative of Romania in New York
handed to the United Nations Legal Counsel an Aide-Mιmoire in which the
Romanian Government set forth its position. Romania stated that, because of
his illness and retirement, Mr. Mazilu was unable to prepare the report and
that the question of the application of the Convention would not arise in
his case.
*
11. On 6 March 1989, the Commission on Human Rights adopted resolution
1989/37 by which the Commission, "[n]oting that the Government of Romania
does not concur in the applicability of the provisions of the Convention ...
in the case of Mr. Mazilu", recommended a draft resolu-[p 204] tion to the
Economic and Social Council for adoption. On 24 May 1989 that text became
the Council's resolution 1989/75 (which is partly quoted in paragraph 1
above), without any substantive change other than the inclusion of the words
"on a priority basis".
**
12. It is clear from these three resolutions (of the Sub-Commission, the
Commission and the Council) that the Sub-Commission on Prevention of
Discrimination and Protection of Minorities considered that the Convention
on the Privileges and Immunities of the United Nations was applicable in
the case of Mr. Mazilu, that the Commission on Human Rights considered that
Romania "[did] not concur in the applicability of the provisions of the
Convention", and that the Economic and Social Council concluded that "a
difference [had] arisen between the United Nations and the Government of
Romania as to the applicability of the Convention... to Mr. Dumitru Mazilu
as Special Rapporteur of the Sub-Commission". What, then, was the
"difference [that had] arisen between the United Nations and ... Romania as
to the applicability of the Convention ... to Mr. Dumitru Mazilu as Special
Rapporteur"?
*
13. Firstly, it should be asked whether or not a special rapporteur of the
Sub-Commission on the Prevention of Discrimination and Protection of
Minorities falls within the category of "Experts on Missions for the United
Nations", within the meaning of Article VI, Section 22, of the Convention.
The United Nations affirmed the positive view but Romania was of the view,
as expressed in its Aide-Mιmoire of 6 January 1989, that "the Convention
does not provide for rapporteurs, whose activities are only occasional, to
be treated as experts on mission for the United Nations". The Court has
concluded that a person exercising that function does fall within the
category of "experts on missions" (para. 55).
*
14. Secondly, in order to reply to the question on the applicability of
Section 22 of the Convention in the case of Mr. Mazilu as a special
rapporteur of the Sub-Commission, the Court must determine whether or not
Mr. Mazilu was a special rapporteur at the time of adoption of the
Council's resolution asking the Court to give an opinion (i.e., 24 May
1989), and whether he still continues to have that status. In this
connection, it would also have been relevant to ask whether his mission was
considered to have been completed by the organ which had entrusted it to
him. Apart from the description of the background to the request for an
advisory opinion [p 205] and of the ensuing events (paras. 9-26), the
Court's Opinion makes scarcely any reference to Romania's position on this
aspect of the question, except by recording its allegation that Mr. Mazilu
was incapable of "carry[ing] out his mandate as special rapporteur" (para.
58). 15. In its Aide-Memoire of 6 January 1989, Romania stated that
"In 1987, Mr. Mazilu became gravely ill with a serious heart ailment and was
repeatedly hospitalized over a period of several months. In November 1987,
as a result of this illness, he personally applied for disability pension
and furnished the necessary medical certificates. In accordance with
Romanian law, he was examined by a medical commission which decided that he
should be pensioned off on grounds of ill health for an initial period of
one year.
[Q]uite recently, at the end of his first year on a disability pension, he
was subjected to a further examination by a similar medical commission,
which decided to extend his retirement on grounds of ill health."
While it did not exactly say as much, the Government of Romania undoubtedly
considered that Mr. Mazilu was no longer a special rapporteur towards the
end of 1987. One may take it that its holding this position was confirmed by
the transmission by the Permanent Mission of Romania, on 8 April 1988, of an
offer by a newly elected member from Romania to undertake the preparation of
the report (see para. 5, above). Romania's position was reiterated in its
written statement presented to the Court on 24 July 1989, in which the Court
was told that
"During the month of May 1987 [Mr. Mazilu] fell seriously ill and, for that
reason and at his request he was, from 1 December 1987, withdrawn from
office as being unfit for service. In 1988, a medical commission, acting in
accordance with current Romanian legislation, proceeded to re-examine Mr.
Dumitru Mazilu's state of health and decided to extend his retirement for a
further one-year period on the grounds of continued unfitness for service.
At the time of his retirement he had not even begun to draw up the report in
question." (Written statement of Romania, p. 7.)
16. The United Nations adopted a different position. On 1 July 1988, the
Under-Secretary-General for Human Rights stated in a letter to the Permanent
Representative of Romania (which referred to the offer of assistance made by
the new Romanian member) that
"Professor Mazilu's mandate comes from a decision by the Sub-Commission in
its resolution 1985/12 [to prepare the report on the [p 206] subject] and it
would be within the competence only of the Sub-Commission, or a higher
policy-making body, to change that designation".
17. Here, the essential question examined by the Court was whether Mr.
Mazilu, in spite of his desire to maintain his status as a special
rapporteur of the Sub-Commission, had lost that status owing to a decision
made by the Romanian Government or, in other words, whether the Romanian
Government could have deprived him of the status of a special rapporteur of
the Sub-Commission for whatever reasons. I share the view of the Court that
"Mr. Mazilu continues to have the status of special rapporteur" a
conclusion that it reaches at the very end of its Opinion, that is, in
paragraph 60.
*
18. Thirdly, while the Court has not been asked to give a general opinion on
the range of privileges and immunities enjoyed by a special rapporteur of
the Sub-Commission or an expert on a mission for the United Nations (or, in
other words, to say what kind of privileges he is entitled to receive, and
to specify when, where and whether he is entitled to judicial immunities
before the courts or other immunities elsewhere, at home or abroad), the
question put by the Economic and Social Council does imply some requirement
of attention to the material consequences of Mr. Mazilu's entitlement to the
benefit of Article VI, Section 22, of the Convention.
19. The Government of Romania adverted to these matters in its Aide-Mιmoire
of 6 January 1989, and its position therein may best be expressed by quoting
from its written statement :
"Even if rapporteurs are to some extent seen as having the status of experts
of the United Nations,... Section 22, of the Convention ... make[s] it
clearly apparent that an expert is not accorded such privileges and
immunities anywhere and everywhere, but only in the country to which he is
sent on mission and during the time spent on the mission, and also in the
countries through which he must transit when travelling to meet the
requirements of the mission. In the same way, the privileges and immunities
only come into existence from the expert's time of departure, when he
travels to accomplish the mission. In so far as the expert's journey to
carry out the mission for the United Nations has not begun, for reasons
entirely unconnected with his activity as an expert, there is no legal basis
upon which to lay claim to privileges and immunities under the Convention,
regardless of whether he is in his country of residence or in another
country, in a capacity other than that of an expert.
In the country of which he is a citizen, in the country where he has his
permanent residence, or in other countries where he may be for reasons
unconnected with the mission in question, the expert is only accorded
privileges and immunities in relation to the content of the [p 207] activity
in which he engages during his mission (including his spoken and written
communications)." (Written statement of Romania, p. 6.)
20. The United Nations clearly took another view, as can be seen from the
Note Verbale of 26 October 1988 from the Secretary-General to the Permanent
Representative of Romania, in which the Secretary-General maintained that
under Section 22 of the Convention Mr. Mazilu should have been
"enabled to establish personal contact with the Under-Secretary-General for
Human Rights in order that the Centre for Human Rights might accord to Mr.
Mazilu the assistance he require[d]".
In his written statement presented to the Court on 31 July 1989, the
Secretary-General referred to his Note Verbale of 26 October 1988,
"in which he invoked the General Convention in respect of Mr. Mazilu and
requested the Romanian Government to accord Mr. Mazilu the necessary
facilities, including travel to Geneva, in order to enable him to complete
his assigned task" (written statement of the United Nations
Secretary-General, para. 24).
21. The Advisory Opinion states, in general terms, that
"the intent of Section 22 is to ensure the independence of such experts in
the interests of the Organization by according them the privileges and
immunities necessary for the purpose. In some cases these privileges and
immunities are designed to facilitate the travel of experts and their stay
abroad, for instance those concerning seizure or searching of personal
baggage. In other cases, however, they are of a far more general nature,
particularly with respect to communications with the United Nations or the
inviolability of papers and documents. Accordingly, Section 22 is applicable
to every expert on mission, whether or not he travels." (Para. 50.)
"The privileges and immunities of Article... VI are conferred with a view to
ensuring the independence of international officials and experts in the
interests of the Organization. This independence must be respected by all
States including the State of nationality and the State of residence."
(Para. 51.)
Though correct, these pronouncements nevertheless do not seem to focus
sufficiently upon the essential aspects of the concrete case of Mr. Mazilu,
including the fact that he was unable to receive documentation from, enter
into contact with, or be approached by the United Nations Centre for Human
Rights in Geneva and was prevented by his Government from travelling to
Geneva for consultations with the Centre or for the purpose of presenting a
report to the Sub-Commission. Confirmation of Mr. Ma-zilu's possession of a
general status conferring privileges and immunities does not, in my view,
exhaust the Court's remit. [p 208]
22. It may be contended that the Court has merely been asked to give its
opinion "on the legal question of the applicability of Article VI, Section
22, of the Convention" (emphasis added), not to consider the matter of its
application. I am conscious of the Secretary-General's written statement,
referred to in the opinion of the Court, to the effect that:
"the Court... has not been asked about the consequences of [the]
applicability [of Section 22 of the Convention], that is about what
privileges and immunities Mr. Mazilu might enjoy as a result of his status
and whether or not these had been violated" (written statement of the United
Nations Secretary-General, para. 2),
and appreciate that the Legal Counsel, as the representative of the
Secretary-General, stated during the oral proceedings that:
"the [Economic and Social] Council merely addressed a preliminary legal
question to the Court, which appears designed to clarify at most the general
status of Mr. Mazilu in respect of the Convention without resolving the
entire issue that evidently separates the United Nations and the
Government".
While this may theoretically justify contenting oneself with a mere
statement that Article VI, Section 22, is applicable to Mr. Mazilu as a
special rapporteur falling within the category of "experts on missions for
the United Nations", it is not, in my view, possible to determine the
applicability of a provision to a concrete case without adequate reference
to the way in which it may apply. In this respect, the Court simply states,
in very general terms, that:
"[rapporteurs and special rapporteurs] enjoy, in accordance with Section 22,
the privileges and immunities necessary for the exercise of their functions,
and in particular for the establishment of any contacts which may be useful
for the preparation, the drafting and the presentation of their reports to
the Sub-Commission" (para. 55).
23. In my view the Court should not have neglected to recount and deal
explicitly with the way in which Mr. Mazilu, in Romania, was isolated from
contacts with the United Nations Centre for Human Rights in Geneva and
prevented from travelling to Geneva for the completion of the task entrusted
to him by the United Nations, because these aspects are fundamental to the
case of Mr. Mazilu which the Court has been requested to examine.
**
24. In conclusion, I believe that, bearing in mind the necessity that the
Court's "participation in the activities of the Organization" (I.C.J.
Reports 1950, p. 71) should be as useful as possible, the final paragraph of
the Opinion could have been slightly expanded, without trenching upon con-
[p 209]tentious matters of fact. Instead of giving a bald affirmative
answer, it should have stated more explicitly: firstly, that a special
rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities falls within the category of "Experts on Missions
for the United Nations"; secondly, that Mr. Mazilu was, at the time of the
request for the opinion by the Economic and Social Council, a special
rapporteur of the Sub-Commission and that he still exercises that function;
and, finally, that Mr. Mazilu was, in the interest of the United Nations,
entitled to receive from all parties to the Convention on the Privileges and
Immunities of the United Nations, including his national State, all
facilities within their power for the fulfilment of his mission. If the
Court had made such a pronouncement, it would usefully have drawn attention
to the necessity of allowing Mr. Mazilu unimpeded communication with and
access to the United Nations Centre for Human Rights.
(Signed) Shigeru Oda
[p 210] Separate opinion of judge Evensen
I fully agree with the Advisory Opinion of the Court but have some
additional views on one special aspect thereof. The Opinion states in
paragraph 14 that "strong pressure had been exerted on him [Mr. Mazilu] and
on his family".
Thus in his letter of 5 April 1988 to Mr. Martenson, United Nations
Under-Secretary-General for Human Rights, Mr. Mazilu maintains that
"unfortunately, a strong pressure on me and on my family continues in order
to sign such a paper". The paper here referred to is a letter of
resignation as rapporteur on the topic assigned to him on "Human rights and
youth". In a letter of 19 April 1988 to the Chairman of the relevant United
Nations Sub-Commission he also complains that his own Government "did
everything possible to discourage me to prepare it [the report]".
As special incidents of such pressures Mr. Mazilu mentions in his letter of
8 May 1988 that: "Since 15 February 1988 more than twenty policemen are
following me, my wife and my son day and night."
In his letters he mentions as additional concrete examples of such
harassments that his "access to the UN Information centre in Bucharest was
blocked" and his "telephone has been disconnected".
However, the sole question put to the Court in the request of ECOSOC is "the
legal question of the applicability of Article VI, Section 22, of the
Convention on the Privileges and Immunities". Thus the Court has not been
requested to express itself on concrete violations of these provisions. But
it seems evident that the pressures exerted have caused concern and hardship
not only to Mr. Mazilu but also to his family. It seems obvious that the
protection provided for in Article VI, Section 22, of the 1946 Convention
cannot be confined only to the "expert Mazilu" but must apply to a
reasonable extent to his family. This seems self-evident and has been
touched upon in one special relation in Article V, Section 18 (d), of the
Convention. It states that officials of the United Nations shall "be immune,
together with their spouses and relatives dependent on them, from
immigration restrictions and alien registration".
However, this provision is one concrete expression of a basic general
principle. The integrity of a person's family and family life is a basic
human right protected by prevailing principles of international law which
derive not only from conventional international law or customary
[p 211] international law but from "general principles of law recognized by
civilized nations".
Thus in the Universal Declaration of Human Rights adopted by the United
Nations General Assembly on 10 December 1948 the integrity of family and
family life was laid down as a basic human right in Article 16, paragraph 3,
as follows: "The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State." This principle,
which is a concrete expression of an established principle of human rights
in the modern law of nations, has been similarly expressed in other
international law instruments. Thus the European Convention on Human Rights
(the Rome Convention) of 4 November 1950 provides in Article 8, paragraph 1:
"Everyone has the right to respect for his private and family life, his home
and his correspondence."
The respect for a person's family and family life must be considered as
integral parts of the "privileges and immunities" that are necessary for
"the independent exercise of their functions" under Article VI, Section 22,
of the 1946 Convention on the Privileges and Immunities of the United
Nations.
(Signed) Jens Evensen.
[p 212]
Separate opinion of judge Shahabuddeen
I have voted in favour of the Advisory Opinion but consider it necessary to
explain my position on four aspects. These relate to : (i) the priority
basis of the request; (ii) Romania's reservation to the Convention on the
Privileges and Immunities of the United Nations, 1946; (iii) Romania's case
relating to Mr. Mazilu's state of health; and (iv) the applicability of the
Convention to enable an expert to leave his State of nationality or
residence in connection with his mission.
I. The Priority Basis of the Request
The first aspect concerns the Order of Court of 14 June 1989, as referred to
in paragraph 3 of the Advisory Opinion. As appears from the Order, "in
fixing time-limits for the proceedings" it was found "necessary to bear in
mind that the request for opinion was expressed to be made 'on a priority
basis'" (I.C.J. Reports 1989, p. 10). The dossier shows that the
introduction of those last four quoted words in the formulation of the
request was the subject of specific challenge in the proceedings of ECOSOC
on the ground "that the Council was not empowered to give the Court
guidelines with regard to priorities when it did not know what other
questions the Court had before it ..." (Dossier, doc. No. 98, p. 2, per Mr.
Mikulka, Czechoslovakia, May 1989). I do not think that the challenge was
well founded, but it does raise a point of sufficient importance to require
me to say that, in my opinion, it is always for the Court, while giving due
and proper weight to any representations by a requesting body, to decide in
its own discretion whether the circumstances of any particular case justify
a priority hearing. The question has been helpfully noticed by the
commentators, but I would like to state an approach limited to the level of
certain general principles.
As is suggested by the case of the Trial of Pakistani Prisoners of War,
Interim Protection (I.C.J. Reports 1973, p. 330, paras. 10-14), the
eligibility of a new case to be heard in priority to other pending cases
presupposes urgency, and the Court remains competent to adjudicate on
urgency even where a case formally falls within a category of priority
prescribed by the Rules of Court. This, I apprehend, is because of the
overriding judicial character of the Court as established by the Charter and
the Statute, with [p 213] both of which the Rules of Court must of course
conform in their provisions, as well as in their interpretation and
operation.
As I read the travaux prιparatoires relating to the establishment of the
Permanent Court of International Justice, they show that, in
contradistinction to the Permanent Court of Arbitration accommodated under
the same roof, the former was intended to be a court of justice as normally
understood. That key concept, though derived from municipal law, was
intended to be generally controlling and, indeed, its primacy has been
repeatedly affirmed both by that Court and by this. The chief
characteristic of a court of justice is that it is invested with judicial
power. In the normal case, some external agency possessed of appropriate
legislative competence over the jurisdiction of a court, or, failing that
(as in this case), the machinery competent to amend the constitution of the
court, may well have authority to modify the extent of the court's original
endowment of judicial power; but, however that may be, the court itself is
powerless to alienate any part of its grant. Even when account is taken of
the usual caution relating to the transposition of municipal law concepts to
the plane of international law, it seems unpersuasive to appeal to the
international status of an international court of justice to suggest that on
so fundamental a matter such a court is exempt from the restraints
applicable to courts of justice as generally understood.
A decision to hear a new case in priority to other pending cases has
consequences both for the hearing of the new case and for that of the
others, and hence for the good administration of justice. Such a decision
pertains to, and forms part of, the Court's judicial power. Accordingly, the
Court's rule-making competence would not embrace the transfer to a party or
to an entity in an analogous position, of any part of the power of the Court
to determine questions relating to priority (the right to submit any views
being another matter). This would be so even in an advisory case, given the
essential judicial character of the Court. True, in such cases "the reply of
the Court, itself an 'organ of the United Nations', represents its
participation in the activities of the Organization" (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p.
71) ; but, of course, it is as a court of justice that the Court
participates. The Court no doubt has autonomy in the exercise of its
rule-making competence; but, however extensive its autonomy, its competence
is not unbounded. A clear and definite limit is discovered by the reflection
that, however generously it may be construed, the Court's rule-making
compe-tence was intended to be used for the purpose of regulating the
exercise of the Court's judicial power, not for the purpose of disposing of
it. The Rules of Court are made, and are intended to be read, on the basis
of this understanding. The Court remains free, therefore, to determine the
need for priority in all cases. [p 214]
II. The Romanian Reservation to the General Convention
Paragraphs 29 to 36 of the Advisory Opinion deal with Romania's contention
that the absence of its consent bars recourse to the advisory jurisdiction
of the Court under Article 96 of the Charter. As the Advisory Opinion
suggests, Romania logically can only be taking that position if it is also
taking the position that its reservation to Section 30 of the General
Convention is applicable to the Charter so as to impose a requirement for
consent as a pre-condition to recourse to that jurisdiction. I agree with
the Court in not accepting this contention but would like to give my
reasons.
Aside from the question whether the Charter admits of reservations and apart
from the difficulty presented by the notion of a reservation being made to a
treaty (in this case, the Charter) by a State after it has become a party to
the treaty, it seems to me that the idea of a reservation to one treaty
operating also as a reservation to another treaty is essentially not right.
In the Nuclear Tests (Australia v. France) case (I.C.J. Reports 1974, p.
253) the Court had before it a contention that certain reservations
contained in a declaration by France accepting the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of the Statute applied also to
its obligations under the General Act for the Pacific Settlement of
International Disputes, 1928. Referring to this contention and to Article
2, paragraph 1 (d), of the Vienna Convention on the Law of Treaties, 1969,
the joint minority opinion (Judges Onyeama, Dillard, Jimenez de Arechaga and
Sir Humphrey Waldock) observed:
"in principle, a reservation relates exclusively to a State's expression of
consent to be bound by a particular treaty or instrument and to the
obligations assumed by that expression of consent. Consequently, the notion
that a reservation attached to one international agreement, by some
unspecified process, is to be superimposed upon or transferred to another
international instrument is alien to the very concept of a reservation in
international law; and also cuts across the rules governing the
notification, acceptance and rejection of reservations." (Ibid., p. 350.)
The correctness of this statement of principle is scarcely open to
challenge.
The effect of the Romanian reservation is on Section 30 of the Convention
alone. By contrast, competence to request an advisory opinion is regulated
exclusively by Article 96 of the Charter. Section 30 of the Convention does
not and cannot confer a competence on anyone to request an advisory opinion;
the Section is hinged on any such competence conferred by or under Article
96 of the Charter. All that Section 30 of the Convention does is to make it
compulsory for the body vested with appropriate competence by or under
Article 96 of the Charter to exercise that competence in relation to certain
differences, and incumbent on the [p 215] parties to such differences to
accept the resulting advisory opinion as "decisive". The action of the
reservation is exerted on these two additional features and not on the
Court's jurisdiction under Article 96 of the Charter. If, because of the
reservation, these two features fall away in the case of Romania, the
jurisdiction under Article 96 of the Charter remains, as before, unaffected
by the reservation. And this, it should be added, is putting at its highest
Romania's view of the extent to which the reservation affects Section 30 of
the Convention a view that is open to dispute but which I agree with the
Court it is not necessary to examine (see paragraph 34 of the Advisory
Opinion).
In sum then, while agreeing with paragraph 36 of the Advisory Opinion that
"the reservation made by Romania to Section 30 of the General Convention
does not affect the Court's jurisdiction to entertain the present request",
I would like to add that the reservation does not affect that jurisdiction
because it simply cannot.
III. ROMANIA'S CASE RELATING TO MR. MAZILU'S STATE OF HEALTH
On the question of Mr. Mazilu's state of health, I agree with the finding
made in paragraph 59 of the Advisory Opinion to the effect "that it was for
the United Nations to decide whether in the circumstances it wished to
retain Mr. Mazilu as special rapporteur..."; but, apart from the
circum-stance that that proposition is so self-evident that I hesitate to
interpret the material as credibly evidencing an intention by Romania to
dispute it, it appears to me that the Romanian argument on this branch of
the case does not necessarily depend on who has the right to retain Mr.
Mazilu as special rapporteur or to terminate his appointment on grounds of
illness (governmental appointments being another matter). What Romania seems
to be saying in its written statement to the Court, as I understand it, is
something different which may be expressed this way:
(i) even assuming that Mr. Mazilu was and continues to be an expert on
mission (as is found by the Court, with which I agree), illness so wholly
incapacitated him from carrying out his functions as to preclude him from
having any need for, and therefore any entitlement to, the privileges and
immunities provided for by the Convention, these being functionally based;
and
(ii) Romania has exclusive domestic jurisdiction over the health of its
nationals, with the consequence that, Romania having made its own
determination of Mr. Mazilu's state of health, that determination is [p 216]
final for all purposes, and any attempt by the United Nations to verify it
within Romania or to act contrary to it would be an interference in
Romania's internal affairs (paras. 19 and 26 of the Advisory Opinion;
Dossier, doc. No. 61, para. 53, and doc. No. 64, para. 42; Romania's written
statement to the Court, pp. 7-8; United States written statement to the
Court, p. 10; and the Secretary-General's written statement to the Court,
paras. 17,19 and 67).
If indeed this is the Romanian argument, it would not appear to be free from
difficulty. Mr. Mazilu's status as a special rapporteur is based on a
relationship subsisting exclusively as between himself and the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities. A decision as to whether a special rapporteur is in such a state
of health as to be incapable of functioning is one to be made by the
Sub-Commission as the employer. As a stranger in law to the relationship
between the Sub-Commission and Mr. Mazilu, Romania had no juridical basis
for intervening to impose its own opinion on the point. No doubt States
ordinarily have exclusive domestic jurisdiction over questions concerning
the health of their nationals and can and do intervene on such questions as
between employer and employee. But the settled jurisprudence of the Court
makes it clear that a matter which would normally be within a State's
domestic jurisdiction ceases to be exclusively so to the extent to which it
has come to be also governed by any international obligations undertaken by
the State (see the Nationality Decrees Issued in Tunis and Morocco case,
P.C.I.J., Series B, No. 4, pp. 21-24; the Acquisition of Polish Nationality
case, P.C.I.J., Series B, No. 7, p. 16; the Certain Norwegian Loans case,
I.C.J. Reports 1957, pp. 37-38, per Judge Lauterpacht; and the Aegean Sea
Continental Shelf case, I.C.J. Reports 1978, pp. 24-25).
In my view, in agreeing to accord privileges and immunities to their
nationals for the purpose of enabling them to carry out their functions when
appointed as experts on missions, alternatively, by reason of their being
parties to the Charter and committed to promoting its objectives, Member
States by necessary implication conceded to the United Nations a right in
good faith (not questioned in this case) to determine the capacity of such
nationals, on grounds of ill health or otherwise, to continue to carry out
their functions. If the Romanian position is correct, the United Nations
would be wholly excluded from exercising that right once the view was
expressed by the State of nationality that an expert was too ill to perform.
It is not necessary, in my view, to consider what settlement procedures
might be available if a dispute were to arise as to whether the United
Nations was acting in good faith. [p 217]
IV. Applicability of the General Convention to Enable an Expert to Leave His
State of Nationality or Residence in Connection with His Mission
The circumstance that the Court's Advisory Opinion specifies some of the
more important privileges and immunities available to experts on missions,
and therefore to Mr. Mazilu as such an expert, does not perhaps mesh
entirely with the view presented by the Secretary-General to the effect that
"the Court... has not been asked ... about what privileges and immunities
Mr. Mazilu might enjoy as a result of his status..." (Advisory Opinion,
para. 27). If the Court has in fact acted on a less sparing conception of
the scope of the request, this is because, as it appears to me, the view
referred to is admissible not by way of modification of the scope of the
request, but only by way of interpretation, as it was of course intended;
and possible interpretations advanced before the Court do not restrict the
range of choice open to it as to the meaning of the governing text of the
resolution presenting the request (see the analogous approach taken in the
Factory at Chorzow case, P. C.I.J., Series A, No. 13, pp. 15-16; the Free
Zones of Upper Savoy and the District of Gex case, P.C.I.J., Series A, No.
22, p. 15, and P.C.I.J., Series A/B, No. 46, p. 138; the South West Africa
case, I.C.J. Reports 1966, p. 354, per Judge Jessup, dissenting; and
Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 223).
In settling what interpretation is to be placed on the question before the
Court, it would seem best to approach the question "in the light of the
actual framework of fact and law in which it falls for consideration"
(Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
I.C.J. Reports 1980, p. 76). That framework may be gathered from the terms
of the request viewed against the background material submitted by the
Secretary-General in relation to the Sub-Commission's own resolution to
which the request expressly refers (see the approach taken by Judge
Lauterpacht in the South West Africa case, I.C.J. Reports 1956, p. 36).
Interpreted this way, it is reasonably clear that the request is intended to
invite an answer not only as to whether Article VI, Section 22, of the
General Convention is applicable in principle "in the case of Mr. Dumitru
Mazilu as Special Rapporteur of the Sub-Commission", but also, if it is
applicable, as to the way in which it is applicable in the particular
circumstances of that particular case. When the context and structure of the
request are considered, technical distinctions between the concepts of
"applicability" and "application" do not have the effect of excluding these
aspects, provided that the answer does not trench on any question as to
whether any particular privilege or immunity was violated.
In my view, therefore, the Advisory Opinion has correctly gone on to
identify particular privileges and immunities available to experts on [p
218] missions, and hence to Mr. Mazilu as such an expert. But there is one
particular right, namely, that relating to travel, which, I believe, merits
closer attention. This aspect is linked to paragraph 55 of the Advisory
Opinion which states that rapporteurs or special rapporteurs
"enjoy, in accordance with Section 22, the privileges and immunities
necessary for the exercise of their functions, and in particular for the
establishment of any contacts which may be useful for the preparation, the
drafting and the presentation of their reports ...".
I understand this as conveying, among other things, that experts on
missions, whether or not assigned to any particular place, are entitled to
invoke the privileges and immunities conferred by the Convention to enable
them to leave their State of nationality or residence in connection with the
performance of their missions. With this view I agree, but I should like to
give my reasons for supporting it with a degree of specificity commensurate
with the special, if not primary, interest which it manifestly has for the
requesting organ, as may be gathered from the several references to it, on
one aspect or another, in the Advisory Opinion itself (see paras. 11,
13,14,16,17,18,21,22,24,26,49 and 52).
My reasons may be conveniently set out in relation to the Romanian
contention by which the issue was presented. Treating Mr. Mazilu as an
expert present in his own State but assigned to function elsewhere (a
position which I will assume for the sake of analysis), Romania submitted
that
"Section 22 of the Convention provides that 'experts ... performing missions
for the United Nations shall be accorded such privileges and immunities as
are necessary for the independent exercise of their functions'. Those
provisions make it clearly apparent that an expert is not accorded such
privileges and immunities anywhere and everywhere, but only in the country
to which he is sent on mission and during the time spent on the mission, and
also in the countries to which he must transit when travelling to meet the
requirements of the mission. In the same way, the privileges and immunities
only come into existence from the expert's time of departure, when he
travels to accomplish the mission. In so far as the expert's journey to
carry out the mission for the United Nations has not begun, for reasons
entirely unconnected with his activity as an expert, there is no legal basis
upon which to lay claim to privileges and immunities under the Convention,
regardless of whether he is in his country of residence or in another
country, in a capacity other than that of an expert.
In the country of which he is a citizen, in the country where he has his
permanent residence, or in other countries where he may be for reasons
unconnected with the mission in question, the expert is only [p 219]
accorded privileges and immunities in relation to the content of the
activity in which he engages during his mission (including his spoken and
written communications)." (Romania's written statement to the Court, p. 6.
And see Advisory Opinion, para. 24.)
I accept as accurate Romania's statement "that an expert is not accorded
such privileges and immunities anywhere and everywhere": their functional
character clearly excludes so wholesale and undiscriminating an application.
Where I have difficulty is in so far as it would seem to follow from
Romania's position that an expert present in a Member State who, for reasons
entirely unconnected with his activity as an expert, has not in fact begun
his outward journey to carry out a mission falling to be discharged
elsewhere but who wishes to embark on such a journey, cannot, as a matter
of law, invoke those privileges and immunities to enable him to commence the
journey. This is because, on Romania's argument, so long as he has not begun
his journey, he is not entitled to any privileges and immunities apart from
the limited and not relevant exception mentioned in its statement. So, the
limited exception apart, not having begun the journey, the expert has no
privileges and immunities, and, not having any privileges and immunities, he
cannot enforce a right to begin the journey. Locked in within this system,
the expert may well be unable to perform the mission which the privileges
and immunities were intended to enable him to perform. Possibly, so strange
a result could collide with the position taken by the Court as to the "duty
[of a party to a treaty] not to deprive [it] of its object and purpose"
(Military and Paramilitary Activities in and against Nicaragua, I.C.J.
Reports 1986, p. 140, para. 280; cf. ibid., p. 249, para. 79, per Judge Oda,
dissenting). I propose, however, to approach the matter in the following
way.
In conferring privileges and immunities on experts "during... the time spent
on journeys in connection with their missions", Article VI, Section 22, of
the Convention obviously regards the making of such a journey as an
essential step in the discharge of an expert's mission, as, indeed, it
plainly is. Equally obviously, an expert may need to commence such a journey
from any Member State in which he happens to be, even if he is there for a
purpose wholly unconnected with his mission. Accordingly, his entitlement
under that provision to "such privileges and immunities as are necessary for
the independent exercise of [his] functions during the period of' his
mission would extend to enable him to embark on such a journey undertaken in
connection with the discharge of those functions. The express reference to
"privileges and immunities ... during ... the time spent on journeys in
connection with" his mission cannot be read as meaning that privileges and
immunities are available only if and when such a journey is in fact in
progress but not also for the purpose of enforcing a right to commence the
journey in the first place.
[p 220]
Under Article VII, Section 26, of the General Convention (referred to in
paragraph 43 of the Advisory Opinion) an expert is entitled to travelling
facilities (including the issue of any necessary visas) from a Member State
to which or through which he intends to go in connection with his mission.
In exercise of this entitlement, the expert may have applied to such a State
for visas and other facilities and secured them only to discover that he
cannot use them if he cannot rely on the privileges and immunities
conferred by Article VI, Section 22, of the Convention to enable him to
leave a Member State in which he happens to be present for a purpose
unconnected with his mission.
However strict may be the construction to be placed on provisions providing
for privileges and immunities (see Alain Plantey, Droit et pratique de la
Fonction publique internationale, Paris, 1977, p. 409, para. 1298), results
as surprising as those indicated above suggest that the privileges and
immunities conferred on an expert by Article VI, Section 22, of the
Convention must, subject to the limitations prescribed in that Article, be
construed as extending to afford protection against all acts which could
frustrate their operation or empty them of real content, with the
consequence of effectively preventing the expert from embarking on or
resuming his mission. The dangers which proverbially lurk in the use of
maxims do not seem to forbid recourse in this case to the well-known words
quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsa
esse non potest when the law gives a man anything, it gives him that also
without which the thing itself cannot exist.
Explaining the rarity of references in the judgments of the Court to
arbitral decisions, Judge Charles De Visscher wrote:
"The rarity of such references is a matter of prudence; the Court is careful
not to introduce into its decisions elements whose heterogeneous character
might escape its vigilance" (Charles De Visscher, Theory and Reality in
Public International Law, rev. ed., 1968, p. 391).
Judge Jessup's interesting explanation was: "The Court, qua Court, naturally
hesitates to cite individuals or national courts lest it appear to have some
bias or predilection" (Judge Philip C. Jessup, letter dated 16 August 1979,
Annuaire de l'Institut de droit international, 1985, Vol. 61, I, p. 253). No
doubt these words of caution extend to other decisions as well. But, apart
from the fact that there is some flexibility in the case of individual
judges, I do believe that the judicial policy concerning such citations,
wise as it is, is not of such rigidity as in practice to disable the Court
from benefiting from other experience, particularly where specific guidance
in its own jurisprudence is lacking, as seems to be the case here.
Without suggesting that it is wholly applicable, I turn accordingly to the
general approach taken in the majority opinion of the European Court [p 221]
of Human Rights in the Golder case (Judgment of 21 February 1975, Series A,
Vol. 18) in which that Court had to construe Article 6, paragraph 1, of the
European Convention on Human Rights, reading:
"In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established by
law..."
Recognizing that this provision did not in terms confer a right of access to
the courts, the European Court of Human Rights nevertheless affirmed the
existence of such a right in these words:
"While the right to a fair, public and expeditious judicial procedure can
assuredly apply only to proceedings in being, it does not, however,
necessarily follow that a right to the very institution of such proceedings
is thereby excluded..." (Ibid., p. 15, para. 32.)
In effect, if it was correct to say that Article 6, paragraph 1, of the
European Convention excluded an antecedent right to institute proceedings
in a court, it would follow that the right conferred by that provision to a
fair, public and expeditious judicial procedure could prove to be largely
devoid of substance. Likewise in this case, if it is correct to say that
Article VI, Section 22, of the General Convention excludes an antecedent
right to commence a journey from a Member State in connection with the
performance of the expert's mission where the expert's presence in that
State was for a purpose unconnected with the mission, it would follow that
the right conferred on him by that provision to privileges and immunities
"during ... the time spent on journeys in connection with" such a mission
(not to speak of other privileges and immunities) could turn out to be
illusory, with the further result that the mission itself could remain
undischarged.
While the situation in the Golder case differs in several respects from that
here, at the level of principle it would seem to me that the reasoning in
that case supports the conclusion that Article VI, Section 22, of the
General Convention is applicable to enable an expert to leave any Member
State for the purpose of carrying out his mission even if his presence in
that State was for a purpose entirely unconnected with the mission.
(Signed) Mohamed Shahabuddeen.
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