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[p.62]
Concerning the difference relating to immunity from legal process of a
Special Rapporteur of the Commission on Human Rights,
The Court,
composed as above,
gives the following Advisory Opinion:
1. The question on which the Court has been requested to give an advisory
opinion is set forth in decision 1998/297 adopted by the United Nations
Economic and Social Council (hereinafter called the "Council") on 5 August
1998. By a letter dated 7 August 1998, filed in the Registry on 10 August
1998, the Secretary-General of the United Nations officially communicated to
the Registrar the Council's decision to submit the question to the Court for
an advisory opinion. Decision 1998/297, certified copies of the English and
French texts of which were enclosed with the letter, reads as follows:
"The Economic and Social Council,
Having considered the note by the Secretary-General on the privileges and
immunities of the Special Rapporteur of the Commission on Human Rights on
the independence of judges and lawyers FN1 ,
------------------------------------------------------------------------------------------------------------
FN1 E/1998/94.
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Considering that a difference has arisen between the United Nations and the
Government of Malaysia, within the meaning of Section 30 of the Convention
on the Privileges and Immunities of the United Nations, with respect to the
immunity from legal process of Dato' Param Cumaraswamy, the Special
Rapporteur of the Commission on Human Rights on the independence of judges
and lawyers,
Recalling General Assembly resolution 89 (I) of 11 December 1946,
1. Requests on a priority basis, pursuant to Article 96, paragraph 2, of the
Charter of the United Nations and in accordance with General Assembly [p 64]
resolution 89 (I), 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 Dato' Param Cumaraswamy as Special Rapporteur of the
Commission on Human Rights on the independence of judges and lawyers, taking
into account the circumstances set out in paragraphs 1 to 15 of the note by
the Secretary-General FN1 , and on the legal obligations of Malaysia in this
case;
------------------------------------------------------------------------------------------------------------
FN1 E/1998/94
------------------------------------------------------------------------------------------------------------
2. Calls upon the Government of Malaysia to ensure that all judgements and
proceedings in this matter in the Malaysian courts are stayed pending
receipt of the advisory opinion of the International Court of Justice, which
shall be accepted as decisive by the parties.
Also enclosed with the letter were certified copies of the English and
French texts of the note by the Secretary-General dated 28 July 1998 and
entitled "Privileges and Immunities of the Special Rapporteur of the
Commission on Human Rights on the Independence of Judges and Lawyers" and of
the addendum to that note (E/1998/94/Add. 1), dated 3 August 1998.
2. By letters dated 10 August 1998, the Registrar, pursuant to Article 66,
paragraph 1, of the Statute of the Court, gave notice of the request for an
advisory opinion to all States entitled to appear before the Court. A copy
of the bilingual printed version of the request, prepared by the Registry,
was subsequently sent to those States.
3. By an Order dated 10 August 1998, the senior judge, acting as President
of the Court under Article 13, paragraph 3, of the Rules of 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. By the
same Order, the senior judge, considering that, in fixing time-limits for
the proceedings, it was "necessary to bear in mind that the request for an
advisory opinion was expressly made 'on a priority basis'", fixed 7 October
1998 as the time-limit within which written statements on the question might
be submitted to the Court, in accordance with Article 66, paragraph 2, of
the Statute, and 6 November 1998 as the time-limit for written comments on
written statements, in accordance with Article 66, paragraph 4, of the
Statute.
On 10 August 1998, the Registrar sent to the United Nations and to the
States parties to the General Convention the special and direct
communication provided for in Article 66, paragraph 2, of the Statute.
4. By a letter dated 22 September 1998, the Legal Counsel of the United
Nations communicated to the President of the Court a certified copy of the
amended French version of the note by the Secretary-General which had been
enclosed with the request. Consequently, a corrigendum to the printed French
version of the request for an advisory opinion was communicated to all
States entitled to appear before the Court.
5. The Secretary-General communicated to the Court, pursuant to [p 65]
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 5 October 1998 onwards.
6. Within the time-limit fixed by the Order of 10 August 1998, written
statements were filed by the Secretary-General of the United Nations and by
Costa Rica, Germany, Italy, Malaysia, Sweden, the United Kingdom and the
United States of America; the filing of a written statement by Greece on 12
October 1998 was authorized. A related letter was also received from
Luxembourg on 29 October 1998. Written comments on the statements were
submitted, within the prescribed time-limit, by the Secretary-General of the
United Nations and by Costa Rica, Malaysia, and the United States of
America. Upon receipt of those statements and comments, the Registrar
communicated them to all States having taken part in the written
proceedings.
The Registrar also communicated to those States the text of the introductory
note to the dossier of documents submitted by the Secretary-General. In
addition, the President of the Court granted Malaysia's request for a copy
of the whole dossier; on the instructions of the President, the
Deputy-Registrar also communicated a copy of that dossier to the other
States having taken part in the written proceedings, and the
Secretary-General was so informed.
7. The Court decided to hold hearings, opening on 7 December 1998, at which
oral statements might be submitted to the Court by the United Nations and
the States parties to the General Convention.
8. 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.
9. In the course of public sittings held on 7 and 8 December 1998, the Court
heard oral statements in the following order by:
for the United Nations: Mr. Hans Corell, Under-Secretary-General for Legal
Affairs, The Legal Counsel,
Mr. Ralph Zacklin, Assistant Secretary-General for Legal Affairs;
for Costa Rica: H.E. Mr. Jose de J. Conejo, Ambassador of Costa Rica to the
Netherlands,
Mr. Charles N. Brower, White & Case LLP;
for Italy: Mr. Umberto Leanza, Head of the Diplomatic Legal Service at the
Ministry of Foreign Affairs;
for Malaysia: Dato' Heliliah bt Mohd Yusof, Solicitor General of Malaysia,
Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International
Law, University of Cambridge.
The Court having decided to authorize a second round of oral statements, the
United Nations, Costa Rica and Malaysia availed themselves of this option;
at a public hearing held on 10 December 1998, Mr. Hans Corell, H.E. Mr. Jose
de J. Conejo, Mr. Charles N. Brower, Dato' Heliliah bt Mohd Yusof and Sir
Elihu Lauterpacht were successively heard. [p 66]
Members of the Court put questions to the Secretary-General's
representative, who replied both orally and in writing. Copies of the
written replies were communicated to all the States having taken part in the
oral proceedings; Malaysia submitted written comments on these replies.
***
10. In its decision 1998/297, the Council asked the Court to take into
account, for purposes of the advisory opinion requested, the "circumstances
set out in paragraphs 1 to 15 of the note by the Secretary-General"
(E/1998/94). Those paragraphs read as follows:
"1. In its resolution 22A (1) of 13 February 1946, the General Assembly
adopted, pursuant to Article 105 (3) of the Charter of the United Nations,
the Convention on the Privileges and Immunities of the United Nations (the
Convention). Since then, 137 Member States have become parties to the
Convention, and its provisions have been incorporated by reference into many
hundreds of agreements relating to the headquarters or seats of the United
Nations and its organs, and to activities carried out by the Organization in
nearly every country of the world.
2. That Convention is, inter alia, designed to protect various categories of
persons, including 'Experts on Mission for the United Nations', from all
types of interference by national authorities. In particular, Section 22 (b)
of Article VI of the Convention provides:
'Section 22: 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 time spent on
journeys in connection with their missions. In particular they shall be
accorded:
………………………………………………………………………………………………
(b) in respect of words spoken or written and acts done by them in the
course of the performance of their mission, immunity from legal process of
any 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.'
3. In its Advisory Opinion of 14 December 1989, on the Applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations (the so-called 'Mazilu case'), the International Court
of Justice held that a Special Rapporteur of the Subcommission on the
Prevention of Discrimination and Protection of Minorities of the Commission
on Human Rights was an [p 67] 'expert on mission' within the meaning of
Article VI of the Convention.
4. The Commission on Human Rights, by its resolution 1994/41 of 4 March
1994, endorsed by the Economic and Social Council in its decision 1994/251
of 22 July 1994, appointed Dato' Param Cumaraswamy, a Malaysian jurist, as
the Commission's Special Rapporteur on the Independence of Judges and
Lawyers. His mandate consists of tasks including, inter alia, to inquire
into substantial allegations concerning, and to identify and record attacks
on, the independence of the judiciary, lawyers and court officials. Mr.
Cumaraswamy has submitted four reports to the Commission on the execution of
his mandate: E/CN.4/1995/39, E/CN.4/1996/37, E/CN.4/1997/32 and
E/CN.4/1998/39. After the third report containing a section on the
litigation pending against him in the Malaysian civil courts, the Commission
at its fifty-fourth session, in April 1997, renewed his mandate for an
additional three years.
5. In November 1995 the Special Rapporteur gave an interview to
International Commercial Litigation, a magazine published in the United
Kingdom of Great Britain and Northern Ireland but circulated also in
Malaysia, in which he commented on certain litigations that had been carried
out in Malaysian courts. As a result of an article published on the basis of
that interview, two commercial companies in Malaysia asserted that the said
article contained defamatory words that had 'brought them into public
scandal, odium and contempt'. Each company filed a suit against him for
damages amounting to M $ 30 million (approximately US $ 12 million each),
'including exemplary damages for slander'.
6. Acting on behalf of the Secretary-General, the Legal Counsel considered
the circumstances of the interview and of the controverted passages of the
article and determined that Dato' Param Cumaraswamy was interviewed in his
official capacity as Special Rapporteur on the Independence of Judges and
Lawyers, that the article clearly referred to his United Nations capacity
and to the Special Rapporteur's United Nations global mandate to investigate
allegations concerning the independence of the judiciary and that the quoted
passages related to such allegations. On 15 January 1997, the Legal Counsel,
in a note verbale addressed to the Permanent Representative of Malaysia to
the United Nations, therefore 'requested the competent Malaysian authorities
to promptly advise the Malaysian courts of the Special Rapporteur's immunity
from legal process' with respect to that particular complaint. On 20 January
1997, the Special Rapporteur filed an application in the High Court of Kuala
Lumpur (the trial court in which the said suit had been filed) to set aside
and/or strike out the plaintiffs' writ, on the ground that the [p 68] words
that were the subject of the suits had been spoken by him in the course of
performing his mission for the United Nations as Special Rapporteur on the
Independence of Judges and Lawyers. The Secretary-General issued a note on 7
March 1997 confirming that 'the words which constitute the basis of
plaintiffs' complaint in this case were spoken by the Special Rapporteur in
the course of his mission' and that the Secretary-General 'therefore
maintains that Dato' Param Cumaraswamy is immune from legal process with
respect thereto'. The Special Rapporteur filed this note in support of his
above-mentioned application.
7. After a draft of a certificate that the Minister for Foreign Affairs
proposed to file with the trial court had been discussed with
representatives of the Office of Legal Affairs, who had indicated that the
draft set out the immunities of the Special Rapporteur incompletely and
inadequately, the Minister nevertheless on 12 March 1997 filed the
certificate in the form originally proposed: in particular the final
sentence of that certificate in effect invited the trial court to determine
at its own discretion whether the immunity applied, by stating that this was
the case 'only in respect of words spoken or written and acts done by him in
the course of the performance of his mission' (emphasis added). In spite of
the representations that had been made by the Office of Legal Affairs, the
certificate failed to refer in any way to the note that the
Secretary-General had issued a few days earlier and that had in the meantime
been filed with the court, nor did it indicate that in this respect, i.e. in
deciding whether particular words or acts of an expert fell within the scope
of his mission, the determination could exclusively be made by the
Secretary-General, and that such determination had conclusive effect and
therefore had to be accepted as such by the court. In spite of repeated
requests by the Legal Counsel, the Minister for Foreign Affairs refused to
amend his certificate or to supplement it in the manner urged by the United
Nations.
8. On 28 June 1997, the competent judge of the Malaysian High Court for
Kuala Lumpur concluded that she was 'unable to hold that the Defendant is
absolutely protected by the immunity he claims', in part because she
considered that the Secretary-General's note was merely 'an opinion' with
scant probative value and no binding force upon the court and that the
Minister for Foreign Affairs' certificate 'would appear to be no more than a
bland statement as to a state of fact pertaining to the Defendant's status
and mandate as a Special Rapporteur and appears to have room for
interpretation'. The Court ordered that the Special Rapporteur's motion be
dismissed with costs, that costs be taxed and paid forthwith by him and that
he file and serve his defence within 14 days. On 8 July, the Court of Appeal
dismissed Mr. Cumaraswamy's motion for a stay of execution. [p 69]
9. On 30 June and 7 July 1997, the Legal Counsel thereupon sent notes
verbales to the Permanent Representative of Malaysia, and also held meetings
with him and his Deputy. In the latter note, the Legal Counsel, inter alia,
called on the Malaysian Government to intervene in the current proceedings
so that the burden of any further defence, including any expenses and taxed
costs resulting therefrom, be assumed by the Government; to hold Mr.
Cumaraswamy harmless in respect of the expenses he had already incurred or
that were being taxed to him in respect of the proceedings so far; and, so
as to prevent the accumulation of additional expenses and costs and the
further need to submit a defence until the matter of his immunity was
definitively resolved between the United Nations and the Government, to
support a motion to have the High Court proceedings stayed until such
resolution. The Legal Counsel referred to the provisions for the settlement
of differences arising out of the interpretation and application of the 1946
Convention that might arise between the Organization and a Member State,
which are set out in Section 30 of the Convention, and indicated that if the
Government decided that it cannot or does not wish to protect and to hold
harmless the Special Rapporteur in the indicated manner, a difference within
the meaning of those provisions might be considered to have arisen between
the Organization and the Government of Malaysia.
10. Section 30 of the Convention provides as follows:
'Section 30: 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.'
11. On 10 July yet another lawsuit was filed against the Special Rapporteur
by one of the lawyers mentioned in the magazine article referred to in
paragraph 5 above, based on precisely the same passages of the interview and
claiming damages in an amount of MS60 million (US $ 24 million). On 11 July,
the Secretary-General issued a note corresponding to the one of 7 March 1997
(see para. 6 above) and also communicated a note verbale with essentially
the same text to the Permanent Representative of Malaysia with the request
that it be presented formally to the competent Malaysian court by the
Government.
12. On 23 October and 21 November 1997, new plaintiffs filed [p 70] a third
and fourth lawsuit against the Special Rapporteur for M $ 100 million (US $
40 million) and M$ 60 million (US $ 24 million) respectively. On 27 October
and 22 November 1997, the Secretary-General issued identical certificates of
the Special Rapporteur's immunity.
13. On 7 November 1997, the Secretary-General advised the Prime Minister of
Malaysia that a difference might have arisen between the United Nations and
the Government of Malaysia and about the possibility of resorting to the
International Court of Justice pursuant to Section 30 of the Convention.
Nonetheless on 19 February 1998, the Federal Court of Malaysia denied Mr.
Cumaraswamy's application for leave to appeal stating that he is neither a
sovereign nor a full-fledged diplomat but merely 'an unpaid, part-time
provider of information'.
14. The Secretary-General then appointed a Special Envoy, Maitre Yves
Fortier of Canada, who, on 26 and 27 February 1998, undertook an official
visit to Kuala Lumpur to reach an agreement with the Government of Malaysia
on a joint submission to the International Court of Justice. Following that
visit, on 13 March 1998 the Minister for Foreign Affairs of Malaysia
informed the Secretary-General's Special Envoy of his Government's desire to
reach an out-of-court settlement. In an effort to reach such a settlement,
the Office of Legal Affairs proposed the terms of such a settlement on 23
March 1998 and a draft settlement agreement on 26 May 1998. Although the
Government of Malaysia succeeded in staying proceedings in the four lawsuits
until September 1998, no final settlement agreement was concluded. During
this period, the Government of Malaysia insisted that, in order to negotiate
a settlement, Maitre Fortier must return to Kuala Lumpur. While Maitre
Fortier preferred to undertake the trip only once a preliminary agreement
between the parties had been reached, nonetheless, based on the Prime
Minister of Malaysia's request that Maitre Fortier return as soon as
possible, the Secretary-General requested his Special Envoy to do so.
15. Maitre Fortier undertook a second official visit to Kuala Lumpur, from
25 to 28 July 1998, during which he concluded that the Government of
Malaysia was not going to participate either in settling this matter or in
preparing a joint submission to the current session of the Economic and
Social Council. The Secretary-General's Special Envoy therefore advised that
the matter should be referred to the Council to request an advisory opinion
from the International Court of Justice. The United Nations had exhausted
all efforts to reach either a negotiated settlement or a joint submission
through the Council to the International Court of Justice. In this
connection, the Government of Malaysia has acknowledged the Organization's
right to refer the matter to the Council to request an advisory opinion in
accordance with Section 30 of the Convention, [p 71] advised the
Secretary-General's Special Envoy that the United Nations should proceed to
do so, and indicated that, while it will make its own presentations to the
International Court of Justice, it does not oppose the submission of the
matter to that Court through the Council."
*
11. The dossier of documents submitted to the Court by the Secretary-General
(see paragraph 5 above) contains the following additional information that
bears on an understanding of the request to the Court.
12. The article published in the November 1995 issue of International
Commercial Litigation, which is referred to in paragraph 5 of the foregoing
note by the Secretary-General, was written by David Samuels and entitled
"Malaysian Justice on Trial". The article gave a critical appraisal of the
Malaysian judicial system in relation to a number of court decisions.
Various Malaysian lawyers were interviewed; as quoted in the article, they
expressed their concern that, as a result of these decisions, foreign
investors and manufacturers might lose the confidence they had always had in
the integrity of the Malaysian judicial system.
13. It was in this context that Mr. Cumaraswamy, who was referred to in the
article more than once in his capacity as the United Nations Special
Rapporteur on the Independence of Judges and Lawyers, was asked to give his
comments. With regard to a specific case (the Ayer Molek case), he said that
it looked like "a very obvious, perhaps even glaring example of
judge-choosing", although he stressed that he had not finished his
investigation.
Mr. Cumaraswamy is also quoted as having said:
"Complaints are rife that certain highly placed personalities in the
business and corporate sectors are able to manipulate the Malaysian system
of justice".
He added: "But I do not want any of the people involved to think I have made
up my mind." He also said:
"It would be unfair to name any names, but there is some concern about this
among foreign businessmen based in Malaysia, particularly those who have
litigation pending."
14. On 18 December 1995, two commercial firms and their legal counsel
addressed letters to Mr. Cumaraswamy in which they maintained that they were
defamed by Mr. Cumaraswamy's statements in the article, since it was clear,
they claimed, that they were being accused of corruption in the Ayer Molek
case. They informed Mr. Cumaraswamy that they had "no choice but to issue
defamation proceedings against him" and added [p 72]
"It is important that all steps are taken for the purpose of mitigating the
continuing damage being done to [our] business and commercial reputations
which is worldwide, as quickly and effectively as possible."
15. On 28 December 1995, in view of the foregoing letters, the Secretariat
of the United Nations issued a Note Verbale to the Permanent Mission of
Malaysia in Geneva, requesting that the competent Malaysian authorities be
advised, and that they in turn advise the Malaysian courts, of the Special
Rapporteur's immunity from legal process. This was the first in a series of
similar communications, containing the same finding, sent by or on behalf of
the Secretary-General - some of which were sent once court proceedings had
been initiated (see paragraphs 6 et seq. of the note by the
Secretary-General, reproduced in paragraph 10 above).
16. On 12 December 1996, the two commercial firms issued a writ of summons
and statement of claim against Mr. Cumaraswamy in the High Court of Kuala
Lumpur. They claimed damages, including exemplary damages, for slander and
libel, and requested an injunction to restrain Mr. Cumaraswamy from further
defaming the plaintiffs.
17. As stated in the note of the Secretary-General, quoted in paragraph 10
above, three further lawsuits flowing from Mr. Cumaraswamy's statements to
International Commercial Litigation were brought against him.
The Government of Malaysia did not transmit to its courts the texts
containing the Secretary-General's finding that Mr. Cumaraswamy was entitled
to immunity from legal process.
The High Court of Kuala Lumpur did not pass upon Mr. Cumaraswamy's immunity
in limine litis, but held that it had jurisdiction to hear the case before
it on the merits, including making a determination of whether Mr.
Cumaraswamy was entitled to any immunity. This decision was upheld by both
the Court of Appeal and the Federal Court of Malaysia.
18. As indicated in paragraph 4 of the above note by the Secretary-General,
the Special Rapporteur made regular reports to the Commission on Human
Rights (hereinafter called the "Commission").
In his first report (E/CN.4/1995/39), dated 6 February 1995, Mr. Cumaraswamy
did not refer to contacts with the media. In resolution 1995/36 of 3 March
1995, the Commission welcomed this report and took note of the methods of
work described therein in paragraphs 63 to 93.
In his second report (E/CN.4/1996/37), dated 1 March 1996, the Special
Rapporteur referred to the Ayer Molek case and to a critical press statement
made by the Bar Council of Malaysia on 21 August 1995. The [p 73] report
also included the following quotation from a press statement issued by Mr.
Cumaraswamy on 23 August 1995:
"Complaints are rife that certain highly placed personalities in Malaysia
including those in business and corporate sectors are manipulating the
Malaysian system of justice and thereby undermining the due administration
of independent and impartial justice by the courts.
Under the mandate entrusted to me by the United Nations Commission on Human
Rights, I am duty bound to investigate these complaints and report to the
same Commission, if possible at its fifty-second session next year. To
facilitate my inquiries I will seek the cooperation of all those involved in
the administration of justice, including the Government which, under my
mandate, is requested to extend its cooperation and assistance."
In resolution 1996/34 of 19 April 1996, the Commission took note of this
report and of the Special Rapporteur's working methods.
In his third report (E/CN.4/1997/32), dated 18 February 1997, the Special
Rapporteur informed the Commission of the article in International
Commercial Litigation and the lawsuits that had been initiated against him,
the author, the publisher, and others. He also referred to the notifications
of the Legal Counsel of the United Nations to the Malaysian authorities. In
resolution 1997/23 of 11 April 1997, the Commission took note of the report
and the working methods of the Special Rapporteur, and extended his mandate
for another three years.
In his fourth report (E/CN.4/1998/39), dated 12 February 1998, the Special
Rapporteur reported on further developments with regard to the lawsuits
initiated against him. In its resolution 1998/35 of 17 April 1998, the
Commission similarly took note of this report and of the working methods
reflected therein.
*
19. As indicated above (see paragraph 1), the note by the Secretary-General
was accompanied by an addendum (E/1998/94/Add.1) which reads as follows:
"In paragraph 14 of the note by the Secretary-General on the privileges and
immunities of the Special Rapporteur of the Commission on Human Rights on
the independence of judges and lawyers (E/1998/94), it is reported that the
'Government of Malaysia succeeded in staying proceedings in the four
lawsuits until September 1998'. In this connection, the Secretary-General
has been informed that on 1 August 1998, Dato' Param Cumaraswamy was served
with a Notice of Taxation and Bill of Costs dated 28 July 1998 and signed by
the Deputy Registrar of the Federal Court notifying him that the [p 74] bill
of costs of the Federal Court application would be assessed on 18 September
1998. The amount claimed is M $ 310,000 (US $ 77,500). On the same day,
Dato' Param Cumaraswamy was also served with a Notice dated 29 July 1998 and
signed by the Registrar of the Court of Appeal notifying him that the
Plaintiff's bill of costs would be assessed on 4 September 1998. The amount
claimed in that bill is M $ 550,000 (US $ 137,500)."
20. The Council considered the note by the Secretary-General (E/1998/94) at
the forty-seventh and forty-eighth meetings of its substantive session of
1998, held on 31 July 1998. At that time, the Observer for Malaysia disputed
certain statements in paragraphs 7, 14 and 15 of the note. The note
concluded with a paragraph 21 containing the Secretary-General's proposal
for two questions to be submitted to the Court for an advisory opinion:
"21 . . .
'Considering the difference that has arisen between the United Nations and
the Government of Malaysia with respect to the immunity from legal process
of Mr. Dato' Param Cumaraswamy, the United Nations Special Rapporteur of the
Commission on Human Rights on the Independence of Judges and Lawyers, in
respect of certain words spoken by him:
1. Subject only to Section 30 of the Convention on the Privileges and
Immunities of the United Nations, does the Secretary-General of the United
Nations have the exclusive authority to determine whether words were spoken
in the course of the performance of a mission for the United Nations within
the meaning of Section 22 (b) of the Convention?
2. In accordance with Section 34 of the Convention, once the
Secretary-General has determined that such words were spoken in the course
of the performance of a mission and has decided to maintain, or not to
waive, the immunity from legal process, does the Government of a Member
State party to the Convention have an obligation to give effect to that
immunity in its national courts and, if failing to do so, to assume
responsibility for, and any costs, expenses and damages arising from, any
legal proceedings brought in respect of such words?
. . . .'"
On 5 August 1998, at its forty-ninth meeting, the Council considered and
adopted without a vote a draft decision submitted by its Vice-President
following informal consultations. After referring to Section 30 of the
General Convention, the decision requested the Court to give an advisory [p
75] opinion on the question formulated therein, and called upon the
Government of Malaysia to ensure that
"all judgements and proceedings in this matter in the Malaysian courts are
stayed pending receipt of the advisory opinion of the . . . Court . . . ,
which shall be accepted as decisive by the parties" (E/1998/L.49/ Rev. 1).
At that meeting, the Observer for Malaysia reiterated his previous criticism
of paragraphs 7, 14 and 15 of the Secretary-General's note, but made no
comment on the terms of the question to be put to the Court as now
formulated by the Council. On being so adopted, the draft became decision
1998/297 (see paragraph 1 above).
**
21. As regards events subsequent to the submission of the request for an
advisory opinion, and more precisely, the situation with regard to the
proceedings pending before the Malaysian courts, Malaysia has provided the
Court with the following information:
"The hearings on the question of stay in respect of three of the four cases
have been deferred until 9 February 1999 when they are due again to be
mentioned in court, and when the plaintiff will join in requesting further
postponements until this Court's advisory opinion has been rendered, and
sufficient time has been given to all concerned to consider its
implications.
The position in the first of the four cases is the same, although it is
fixed for mention on 16 December [1998]. However, it will then be treated in
the same way as the other cases. As to cost, the requirement for the payment
of costs by the defendant has also been stayed, and that aspect of the case
will be deferred and considered in the same way."
***
22. The Council has requested the present advisory opinion pursuant to
Article 96, paragraph 2, of the Charter of the United Nations. This
paragraph provides that organs of the United Nations, other than the General
Assembly or 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".
Article 65, paragraph 1, of the Statute of the Court states that
"the Court may give an advisory opinion on any legal question at the [p 76]
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request".
23. In its decision 1998/297, the Council recalls that General Assembly
resolution 89 (I) gave it authorization to request advisory opinions, and it
expressly makes reference to the fact
"that a difference has arisen between the United Nations and the Government
of Malaysia, within the meaning of Section 30 of the Convention on the
Privileges and Immunities of the United Nations, with respect to the
immunity from legal process of Dato' Param Cumaraswamy, the Special
Rapporteur of the Commission on Human Rights on the independence of judges
and lawyers".
24. This is the first time that the Court has received a request for an
advisory opinion that refers to Article VIII, Section 30, of the General
Convention, which provides that
"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."
25. This section provides for the exercise of the Court's advisory function
in the event of a difference between the United Nations and one of its
Members. In this case, such a difference exists, but that fact does not
change the advisory nature of the Court's function, which is governed by the
terms of the Charter and of the Statute. As the Court stated in its Advisory
Opinion of 12 July 1973,
"the existence, in the background, of a dispute the parties to which may be
affected as a consequence of the Court's opinion, does not change the
advisory nature of the Court's task, which is to answer the questions put to
it . . ." (Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 171,
para. 14 ).
Paragraph 2 of the Council's decision requesting the advisory opinion
repeats expressis verbis the provision in Article VIII, Section 30, of the
General Convention that the Court's opinion "shall be accepted as decisive
by the parties". However, this equally cannot affect the nature of the
function carried out by the Court when giving its advisory opinion. As the
Court said in its Advisory Opinion of 23 October 1956, in a case involving
similar language in Article XII of the Statute of the Adminis-[p 77]trative
Tribunal of the International Labour Organisation, such "decisive" or
"binding" effect
"goes beyond the scope attributed by the Charter and by the Statute of the
Court to an Advisory Opinion . . . It in no wise affects the way in which
the Court functions; that continues to be determined by its Statute and its
Rules. Nor does it affect the reasoning by which the Court forms its Opinion
or the content of the Opinion itself." (Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion,
I.C.J. Reports 1956, p. 84.)
A distinction should thus be drawn between the advisory nature of the
Court's task and the particular effects that parties to an existing dispute
may wish to attribute, in their mutual relations, to an advisory opinion of
the Court, which, "as such, . . . has no binding force" (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71). These particular effects, extraneous
to the Charter and the Statute which regulate the functioning of the Court,
are derived from separate agreements; in the present case Article VIII,
Section 30, of the General Convention provides that "the opinion given by
the Court shall be accepted as decisive by the parties". That consequence
has been expressly acknowledged by the United Nations and by Malaysia.
*
26. The power of the Court to give an advisory opinion is derived from
Article 96, paragraph 2, of the Charter and from Article 65 of the Statute
(see paragraph 22 above). Both provisions require that the question forming
the subject-matter of the request should be a "legal question". This
condition is satisfied in the present case, as all participants in the
proceedings have acknowledged, because the advisory opinion requested
relates to the interpretation of the General Convention, and to its
application to the circumstances of the case of the Special Rapporteur,
Dato' Param Cumaraswamy. Thus the Court held in its Advisory Opinion of 28
May 1948 that "to determine the meaning of a treaty provision . . . is a
problem of interpretation and consequently a legal question" (Conditions of
Admission of a State to Membership in the United Nations (Article 4 of
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61).
27. Article 96, paragraph 2, of the Charter also requires that the legal
questions forming the subject-matter of advisory opinions requested by
authorized organs of the United Nations and specialized agencies shall arise
"within the scope of their activities". The fulfilment of this condition has
not been questioned by any of the participants in the present proceedings.
The Court finds that the legal questions submitted by the Council in its
request concern the activities of the Commission, since they relate to the
mandate of its Special Rapporteur appointed [p 78]
"to inquire into substantial allegations concerning, and to identify and
record attacks on, the independence of the judiciary, lawyers and court
officials".
Mr. Cumaraswamy's activities as Rapporteur and the legal questions arising
therefrom are pertinent to the functioning of the Commission; accordingly
they come within the scope of activities of the Council, since the
Commission is one of its subsidiary organs. The same conclusion was reached
by the Court in an analogous case, in its Advisory Opinion of 15 December
1989, also given at the request [37] of the Council, regarding the
Applicability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations (I.C.J. Reports 1989, p. 187, para.
28).
*
28. As the Court held in its Advisory Opinion of 30 March 1950, the
permissive character of Article 65 of the Statute "gives the Court the power
to examine whether the circumstances of the case are of such a character as
should lead it to decline to answer the Request" (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 72). Such discretionary power does not exist when
the Court is not competent to answer the question forming the subject-matter
of the request, for example because it is not a "legal question". In such a
case, "the Court has no discretion in the matter; it must decline to give
the opinion requested" (Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155;
cf., Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
I.C.J. Reports 1996 (I), p. 73, para. 14). However, the Court went on to
state, in its Advisory Opinion of 20 July 1962, that "even if the question
is a legal one, which the Court is undoubtedly competent to answer, it may
nonetheless decline to do so" (I.C.J. Reports 1962, p. 155).
29. In its Advisory Opinion of 30 March 1950, the Court made it clear that,
as an organ of the United Nations, its answer to a request for an advisory
opinion "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); moreover, in its Advisory Opinion of 20 July 1962,
citing its Advisory Opinion of 23 October 1956, the Court stressed that
"only 'compelling reasons' should lead it to refuse to give a requested
advisory opinion" (Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p.
155). (See also, for example, Applicability of Article VI, Section 22, of
the Convention on the Privileges and Immunities of the United Nations,
Advisory Opinion, I.C.J. Reports 1989, pp. 190-[p 79] 191, para. 37; and
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 235, para. 14).
30. In the present case, the Court, having established its jurisdiction,
finds no compelling reasons not to give the advisory opinion requested by
the Council. Moreover, no participant in these proceedings questioned the
need for the Court to exercise its advisory function in this case.
**
31. Article 65, paragraph 2, of the Statute provides that
"questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required".
In compliance with this requirement, the Secretary-General transmitted to
the Court the text of the Council's decision, paragraph 1 of which reads as
follows:
"1. 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), 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 Dato' Param Cumaraswamy as Special Rapporteur of the
Commission on Human Rights on the independence of judges and lawyers, taking
into account the circumstances set out in paragraphs 1 to 15 of the note by
the Secretary-General, and on the legal obligations of Malaysia in this
case."
32. Malaysia has asserted to the Court that it had "at no time approved the
text of the question that appeared in E/1998/L.49 or as eventually adopted
by ECOSOC and submitted to the Court" and that it "never did more than 'take
note' of the question as originally formulated by the Secretary-General and
submitted to the ECOSOC in document E/1998/94". It contends that the
advisory opinion of the Court should be restricted to the existing
difference between the United Nations and Malaysia. In Malaysia's view, this
difference relates to the question (as formulated by the Secretary-General
himself (see paragraph 20 above)) of whether the latter has the exclusive
authority to determine whether acts of an expert (including words spoken or
written) were performed in the course of his or her mission. Thus, in the
conclusion to the revised version of its written statement, Malaysia states,
inter alia, that it
"considers that the Secretary-General of the United Nations has not been
vested with the exclusive authority to determine whether words [p 80] were
spoken in the course of the performance of a mission for the United Nations
within the meaning of Section 22 (b) of the Convention".
In its oral pleadings, Malaysia maintained that
"in implementing Section 30, ECOSOC is merely a vehicle for placing a
difference between the Secretary General and Malaysia before the Court.
ECOSOC does not have an independent position to assert as it might have had
were it seeking an opinion on some legal question other than in the context
of the operation of Article 30. ECOSOC . . . is no more than an instrument
of reference, it cannot change the nature of the difference or alter the
content of the question."
33. In the written statement presented on behalf of the Secretary-General,
the Legal Counsel of the United Nations requested the Court
"to establish that, subject to Article VIII, Sections 29 and 30 of the
Convention, the Secretary-General has exclusive authority to determine
whether or not words or acts are spoken, written or done in the course of
the performance of a mission for the United Nations and whether such words
or acts fall within the scope of the mandate entrusted to a United Nations
expert on mission".
In this submission, it has also been argued
"that such matters cannot be determined by, or adjudicated in, the national
courts of the Member States parties to the Convention. The latter position
is coupled with the Secretary-General's right and duty, in accordance with
the terms of Article VI, Section 23, of the Convention, to waive the
immunity where, in his opinion, it would impede the course of justice and it
can be waived without prejudice to the interests of the United Nations."
34. The other States participating in the present proceedings have expressed
varying views on the foregoing issue of the exclusive authority of the
Secretary-General.
*
35. As the Council indicated in the preamble to its decision 1998/297, that
decision was adopted by the Council on the basis of the note submitted by
the Secretary General on "Privileges and Immunities of the Special
Rapporteur of the Commission on Human Rights on the Independence of Judges
and Lawyers" (see paragraph 1 above). Paragraph 1 of the operative part of
the decision refers expressly to paragraphs 1 to 15 of that note but not to
paragraph 21, containing the two questions that the Secretary-General
proposed submitting to the Court (see para-[p 81]graph 20 above). The Court
would point out that the wording of the question submitted by the Council is
quite different from that proposed by the Secretary-General.
36. Participants in these proceedings have advanced differing views as to
what is the legal question to be answered by the Court. The Court observes
that it is for the Council - and not for a member State nor for the
Secretary-General - to formulate the terms of a question that the Council
wishes to ask.
37. The Council adopted its decision 1998/297 without a vote. The Council
did not pass upon any proposal that the question to be submitted to the
Court should include, still less be confined to, the issue of the exclusive
authority of the Secretary-General to determine whether or not acts
(including words spoken or written) were performed in the course of a
mission for the United Nations and whether such words or acts fall within
the scope of the mandate entrusted to an expert on mission for the United
Nations. Although the Summary Records of the Council do not expressly
address the matter, it is clear that the Council, as the organ entitled to
put the request to the Court, did not adopt the questions set forth at the
conclusion of the note by the Secretary-General, but instead formulated its
own question in terms which were not contested at that time (see paragraph
20 above). Accordingly, the Court will now answer the question as formulated
by the Council.
***
38. The Court will initially examine the first part of the question laid
before the Court by the Council, which is:
"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 Dato' Param Cumaraswamy as Special Rapporteur of the Commission on
Human Rights on the independence of judges and lawyers, taking into account
the circumstances set out in paragraphs 1 to 15 of the note by the
Secretary-General . . ."
39. From the deliberations which took place in the Council on the content of
the request for an advisory opinion, it is clear that the reference in the
request to the note of the Secretary-General was made in order to provide
the Court with the basic facts to which to refer in making its decision. The
request of the Council therefore does not only pertain to the threshold
question whether Mr. Cumaraswamy was and is an expert on mission in the
sense of Article VI, Section 22, of the General Convention but, in the event
of an affirmative answer to this question, to the consequences of that
finding in the circumstances of the case.
*[p 82]
40. Pursuant to Article 105 of the Charter of the United Nations:
"1. 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.
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 connexion with
the Organization.
3. The General Assembly may make recommendations with a view to determining
the details of the application of paragraphs 1 and 2 of this Article or may
propose conventions to the Members of the United Nations for this purpose."
Acting in accordance 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. Malaysia became a party to
the General Convention, without reservation, on 28 October 1957.
41. The General Convention contains an Article VI entitled "Experts on
Missions for the United Nations". It is comprised of two Sections (22 and
23). Section 22 provides:
"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 time spent on
journeys in connection with their missions. In particular they shall be
accorded:
. . . ……………………………………………………………………………………….
(b) in respect of words spoken or written and acts done by them in 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.
. . . …………………………………………………………………………………."
42. In its Advisory Opinion of 14 December 1989 on the Applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations, the Court examined the applicability of Section 22
ratione personae, ratione temporis and ratione loci.
In this context the Court stated:
"The purpose of Section 22 is . . . 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 exer-[p 83]cise of their
functions'. . . . The essence of the matter lies not in their administrative
position but in the nature of their mission." (I.C.J. Reports 1989, p. 194,
para. 47.)
In that same Advisory Opinion, the Court concluded that a Special Rapporteur
who is appointed by the Sub-Commission on Prevention of Discrimination and
Protection of Minorities and is entrusted with a research mission must be
regarded as an expert on mission within the meaning of Article VI, Section
22, of the General Convention (ibid., p. 197, para. 55).
43. The same conclusion must be drawn with regard to Special Rapporteurs
appointed by the Human Rights Commission, of which the Sub-Commission is a
subsidiary organ. It may be observed that Special Rapporteurs of the
Commission usually are entrusted not only with a research mission but also
with the task of monitoring human rights violations and reporting on them.
But what is decisive is that they have been entrusted with a mission by the
United Nations and are therefore entitled to the privileges and immunities
provided for in Article VI, Section 22, that safeguard the independent
exercise of their functions.
44. By a letter of 21 April 1994, the Chairman of the Commission informed
the Assistant Secretary-General for Human Rights of Mr. Cumaraswamy's
appointment as Special Rapporteur. The mandate of the Special Rapporteur is
contained in resolution 1994/41 of the Commission entitled "Independence and
Impartiality of the Judiciary, Jurors and Assessors and the Independence of
Lawyers". This resolution was endorsed by the Council in its decision
1994/251 of 22 July 1994. The Special Rapporteur's mandate consists of the
following tasks:
"(a) to inquire into any substantial allegations transmitted to him or her
and report his or her conclusions thereon;
(b) to identify and record not only attacks on the independence of the
judiciary, lawyers and court officials but also progress achieved in
protecting and enhancing their independence, and make concrete
recommendations, including accommodations for the provision of advisory
services or technical assistance when they are requested by the State
concerned;
(c) to study, for the purpose of making proposals, important and topical
questions of principle with a view to protecting and enhancing the
independence of the judiciary and lawyers."
45. The Commission extended by resolution 1997/23 of 11 April 1997 the
Special Rapporteur's mandate for a further period of three years.
In the light of these circumstances, the Court finds that Mr. Cumaraswamy
must be regarded as an expert on mission within the meaning of Article VI,
Section 22, as from 21 April 1994, that by virtue of this capa-[p 84]city
the provisions of this Section were applicable to him at the time of his
statements at issue, and that they continue to be applicable.
46. The Court observes that Malaysia has acknowledged that Mr. Cumaraswamy,
as Special Rapporteur of the Commission, is an expert on mission and that
such experts enjoy the privileges and immunities provided for under the
General Convention in their relations with States parties, including those
of which they are nationals or on the territory of which they reside.
Malaysia and the United Nations are in full agreement on these points, as
are the other States participating in the proceedings.
*
47. The Court will now consider whether the immunity provided for in Section
22 (b) applies to Mr. Cumaraswamy in the specific circumstances of the case;
namely, whether the words used by him in the interview, as published in the
article in International Commercial Litigation (November issue 1995), were
spoken in the course of the performance of his mission, and whether he was
therefore immune from legal process with respect to these words.
48. During the oral proceedings, the Solicitor General of Malaysia contended
that the issue put by the Council before the Court does not include this
question. She stated that the correct interpretation of the words used by
the Council in its request
"does not extend to inviting the Court to decide whether, assuming the
Secretary-General to have had the authority to determine the character of
the Special Rapporteur's action, he had properly exercised that authority"
and added:
"Malaysia observes that the word used was 'applicability' not 'application'.
'Applicability' means 'whether the provision is applicable to someone' not
'how it is to be applied'."
49. The Court does not share this interpretation. It follows from the terms
of the request that the Council wishes to be informed of the Court's opinion
as to whether Section 22 (b) is applicable to the Special Rapporteur, in the
circumstances set out in paragraphs 1 to 15 of the note of the
Secretary-General and whether, therefore, the Secretary-General's finding
that the Special Rapporteur acted in the course of the performance of his
mission is correct.
50. In the process of determining whether a particular expert on mission is
entitled, in the prevailing circumstances, to the immunity provided for in
Section 22 (b), the Secretary-General of the United Nations has a pivotal
role to play. The Secretary-General, as the chief administrative officer of
the Organization, has the authority and the responsibility to exercise the
necessary protection where required. This authority has been recognized by
the Court when it stated: [p 85]
"Upon examination of the character of the functions entrusted to the
Organization and of the nature of the missions of its agents, it becomes
clear that the capacity of the Organization to exercise a measure of
functional protection of its agents arises by necessary intendment out of
the Charter." (Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184.)
51. Article VI, Section 23, of the General Convention provides that
"privileges and immunities are granted to experts in the interests of the
United Nations and not for the personal benefit of the individuals
themselves." In exercising protection of United Nations experts, the
Secretary-General is therefore protecting the mission with which the expert
is entrusted. In that respect, the Secretary-General has the primary
responsibility and authority to protect the interests of the Organization
and its agents, including experts on mission. As the Court held:
"In order that the agent may perform his duties satisfactorily, he must feel
that this protection is assured to him by the Organization, and that he may
count on it. To ensure the independence of the agent, and, consequently, the
independent action of the Organization itself, it is essential that in
performing his duties he need not have to rely on any other protection than
that of the Organization. . ." (Ibid., p. 183.)
52. The determination whether an agent of the Organization has acted in the
course of the performance of his mission depends upon the facts of a
particular case. In the present case, the Secretary-General, or the Legal
Counsel of the United Nations on his behalf, has on numerous occasions
informed the Government of Malaysia of his finding that Mr. Cumaraswamy had
spoken the words quoted in the article in International Commercial
Litigation in his capacity as Special Rapporteur of the Commission and that
he consequently was entitled to immunity from "every kind" of legal process.
53. As is clear from the written and oral pleadings of the United Nations,
the Secretary-General was reinforced in this view by the fact that it has
become standard practice of Special Rapporteurs of the Commission to have
contact with the media. This practice was confirmed by the High Commissioner
for Human Rights who, in a letter dated 2 October 1998, included in the
dossier, wrote that: "it is more common than not for Special Rapporteurs to
speak to the press about matters pertaining to their investigations, thereby
keeping the general public informed of their work".
54. As noted above (see paragraph 13), Mr. Cumaraswamy was explicitly
referred to several times in the article "Malaysian Justice on Trial" in
International Commercial Litigation in his capacity as United Nations
Special Rapporteur on the Independence of Judges and Lawyers. In his reports
to the Commission (see paragraph 18 above), Mr. Cumaraswamy [p 86] had set
out his methods of work, expressed concern about the independence of the
Malaysian judiciary, and referred to the civil lawsuits initiated against
him. His third report noted that the Legal Counsel of the United Nations had
informed the Government of Malaysia that he had spoken in the performance of
his mission and was therefore entitled to immunity from legal process.
55. As noted in paragraph 18 above, in its various resolutions the
Commission took note of the Special Rapporteur's reports and of his methods
of work. In 1997, it extended his mandate for another three years (see
paragraphs 18 and 45 above). The Commission presumably would not have so
acted if it had been of the opinion that Mr. Cumaraswamy had gone beyond his
mandate and had given the interview to International Commercial Litigation
outside the course of his functions. Thus the Secretary-General was able to
find support for his findings in the Commission's position.
56. The Court is not called upon in the present case to pass upon the
aptness of the terms used by the Special Rapporteur or his assessment of the
situation. In any event, in view of all the circumstances of this case,
elements of which are set out in paragraphs 1 to 15 of the note by the
Secretary-General, the Court is of the opinion that the Secretary-General
correctly found that Mr. Cumaraswamy, in speaking the words quoted in the
article in International Commercial Litigation, was acting in the course of
the performance of his mission as Special Rapporteur of the Commission.
Consequently, Article VI, Section 22 (b), of the General Convention is
applicable to him in the present case and affords Mr. Cumaraswamy immunity
from legal process of every kind.
**
57. The Court will now deal with the second part of the Council's question,
namely, "the legal obligations of Malaysia in this case".
58. Malaysia maintains that it is premature to deal with the question of its
obligations. It is of the view that the obligation to ensure that the
requirements of Section 22 of the Convention are met is an obligation of
result and not of means to be employed in achieving that result. It further
states that Malaysia has complied with its obligation under Section 34 of
the General Convention, which provides that a party to the Convention must
be "in a position under its own law to give effect to [its] terms", by
enacting the necessary legislation; finally it contends that the Malaysian
courts have not yet reached a final decision as to Mr. Cumaraswamy's
entitlement to immunity from legal process.
59. The Court wishes to point out that the request for an advisory opinion
refers to "the legal obligations of Malaysia in this case". The difference
which has arisen between the United Nations and Malaysia originated in the
Government of Malaysia not having informed the competent [p 87] Malaysian
judicial authorities of the Secretary-General's finding that Mr. Cumaraswamy
had spoken the words at issue in the course of the performance of his
mission and was, therefore, entitled to immunity from legal process (see
paragraph 17 above). It is as from the time of this omission that the
question before the Court must be answered.
60. As the Court has observed, the Secretary-General, as the chief
administrative officer of the Organization, has the primary responsibility
to safeguard the interests of the Organization; to that end, it is up to him
to assess whether its agents acted within the scope of their functions and,
where he so concludes, to protect these agents, including experts on
mission, by asserting their immunity. This means that the Secretary-General
has the authority and responsibility to inform the government of a member
State of his finding and, where appropriate, to request it to act
accordingly and, in particular, to request it to bring his finding to the
knowledge of the local courts if acts of an agent have given or may give
rise to court proceedings.
61. When national courts are seised of a case in which the immunity of a
United Nations agent is in issue, they should immediately be notified of any
finding by the Secretary-General concerning that immunity. That finding, and
its documentary expression, creates a presumption which can only be set
aside for the most compelling reasons and is thus to be given the greatest
weight by national courts.
The governmental authorities of a party to the General Convention are
therefore under an obligation to convey such information to the national
courts concerned, since a proper application of the Convention by them is
dependent on such information.
Failure to comply with this obligation, among others, could give rise to the
institution of proceedings under Article VIII, Section 30, of the General
Convention.
62. The Court concludes that the Government of Malaysia had an obligation,
under Article 105 of the Charter and under the General Convention, to inform
its courts of the position taken by the Secretary-General. According to a
well-established rule of international law, the conduct of any organ of a
State must be regarded as an act of that State. This rule, which is of a
customary character, is reflected in Article 6 of the Draft Articles on
State Responsibility adopted provisionally by the International Law
Commission on first reading, which provides:
"The conduct of an organ of the State shall be considered as an act of that
State under international law, whether that organ belongs to the
constituent, legislative, executive, judicial or other power, whether its
functions are of an international or an internal character, and whether it
holds a superior or a subordinated position in the organization of the
State." (Yearbook of the International Law Commission, 1973, Vol. II, p.
193.) [p 88]
Because the Government did not transmit the Secretary-General's finding to
the competent courts, and the Minister for Foreign Affairs did not refer to
it in his own certificate, Malaysia did not comply with the above-mentioned
obligation.
63. Section 22 (b) of the General Convention explicitly states that experts
on mission shall be accorded immunity from legal process of every kind in
respect of words spoken or written and acts done by them in the course of
the performance of their mission. By necessary implication, questions of
immunity are therefore preliminary issues which must be expeditiously
decided in limine litis. This is a generally-recognized principle of
procedural law, and Malaysia was under an obligation to respect it. The
Malaysian courts did not rule in limine litis on the immunity of the Special
Rapporteur (see paragraph 17 above), thereby nullifying the essence of the
immunity rule contained in Section 22 (b). Moreover, costs were taxed to Mr.
Cumaraswamy while the question of immunity was still unresolved. As
indicated above, the conduct of an organ of a State - even an organ
independent of the executive power - must be regarded as an act of that
State. Consequently, Malaysia did not act in accordance with its obligations
under international law.
*
64. In addition, the immunity from legal process to which the Court finds
Mr. Cumaraswamy entitled entails holding Mr. Cumaraswamy financially
harmless for any costs imposed upon him by the Malaysian courts, in
particular taxed costs.
*
65. According to Article VIII, Section 30, of the General Convention, the
opinion given by the Court shall be accepted as decisive by the parties to
the dispute. Malaysia has acknowledged its obligations under Section 30.
Since the Court holds that Mr. Cumaraswamy is an expert on mission who under
Section 22 (b) is entitled to immunity from legal process, the Government of
Malaysia is obligated to communicate this advisory opinion to the competent
Malaysian courts, in order that Malaysia's international obligations be
given effect and Mr. Cumaraswamy's immunity be respected.
*
66. Finally, the Court wishes to point out that the question of immunity
from legal process is distinct from the issue of compensation for any
damages incurred as a result of acts performed by the United Nations or by
its agents acting in their official capacity. [p 89]
The United Nations may be required to bear responsibility for the damage
arising from such acts. However, as is clear from Article VIII, Section 29,
of the General Convention, any such claims against the United Nations shall
not be dealt with by national courts but shall be settled in accordance with
the appropriate modes of settlement that "the United Nations shall make
provisions for" pursuant to Section 29.
Furthermore, it need hardly be said that all agents of the United Nations,
in whatever official capacity they act, must take care not to exceed the
scope of their functions, and should so comport themselves as to avoid
claims against the United Nations.
***
67. For these reasons,
The Court
Is of the opinion:
(1) (a) By fourteen votes to one,
That Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations is applicable in the case of Dato' Param
Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the
Independence of Judges and Lawyers;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judge Koroma;
b) By fourteen votes to one,
That Dato' Param Cumaraswamy is entitled to immunity from legal process of
every kind for the words spoken by him during an interview as published in
an article in the November 1995 issue of International Commercial
Litigation;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judge Koroma;
(2) (a) By thirteen votes to two,
That the Government of Malaysia had the obligation to inform the Malaysian
courts of the finding of the Secretary-[p 90]General that Dato' Param
Cumaraswamy was entitled to immunity from legal process;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judges Oda, Koroma;
(b) By fourteen votes to one,
That the Malaysian courts had the obligation to deal with the question of
immunity from legal process as a preliminary issue to be expeditiously
decided in limine litis;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judge Koroma;
(3) Unanimously,
That Dato' Param Cumaraswamy shall be held financially harmless for any
costs imposed upon him by the Malaysian courts, in particular taxed costs;
(4) By thirteen votes to two,
That the Government of Malaysia has the obligation to communicate this
advisory opinion to the Malaysian courts, in order that Malaysia's
international obligations be given effect and Dato' Param Cumaraswamy's
immunity be respected;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judges Oda, Koroma.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-ninth day of April, one thousand nine
hundred and ninety-nine, in two copies, of which one will be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the United Nations.
(Signed) Stephen M. Schwebel,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.[p 91]
Vice-President Weeramantry and Judges Oda and Rezek append separate opinions
to the Advisory Opinion of the Court.
Judge Koroma appends a dissenting opinion to the Advisory Opinion of the
Court.
(Initialled) S.M.S.
(Initialled) E.V.O.
[p 92]
SEPARATE OPINION OF VICE-PRESIDENT WEERAMANTRY
Importance of protection of United Nations personnel — Immunities of United
Nations functionaries distinguished from those of State representatives —
Conclusiveness of Secretary-General's determination — Need for uniform
international jurisprudence on this matter — Duty of rapporteurs to ensure
that they act within the terms of their mandate.
I agree with the conclusions of the Court as set out in the Court's Opinion.
I would wish also to stress my agreement, in particular, with the principles
set out in paragraph 61 of the Opinion that when national courts are seised
of a case in which the immunity of a United Nations agent is in issue, they
should immediately be notified of any finding by the Secretary-General
concerning that immunity, that the Secretary-General's finding, and its
documentary expression, create a presumption of immunity which can only be
set aside for the most compelling reasons, and that they are thus to be
given the greatest weight by national courts.
I would wish, however, to add a few observations stemming from the issues
involved in this Opinion.
Importance of Protection of United Nations Personnel
It is manifest that the protection of its personnel, when engaged about
their duties, is of prime importance to the proper functioning of the United
Nations system.
Rapporteurs must be able to perform their duties without fear or favour as
their investigations often cover sensitive ground in the country whose
instrumentalities are the subjects of their enquiry. They cannot discharge
their responsibilities with the independence essential to free and complete
enquiry if they need to keep looking over their shoulder for adverse
personal consequences that may ensue from an independent investigation.
Should this be the case, there would be an impairment both of the efficiency
of the rapporteur and of the integrity of the entire machinery of
independent enquiry which is so vital to the working of the United Nations.
This is important also in the interests of the ability of the United Nations
to recruit to its service the best talent that might be available. It
scarcely advances the interests of the Organization if individuals most
suitable for a particular assignment should keep away from such assignments
through fear that they may in some way be victimized when [p 93] engaged in
their duties. As this Court observed in the Reparation case: "In order that
the agent may perform his duties satisfactorily, he must feel that this
protection is assured to him by the Organization, and that he may count on
it."FN1
---------------------------------------------------------------------------------------------------------------------
FN1
Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 183.
---------------------------------------------------------------------------------------------------------------------
Apart from such basic considerations and the conventional principles
relating to this matter, numerous resolutions of the General Assembly have
stressed the necessity for protection of United Nations personnel against
such impediments in the way of the performance of their duties.
Such protection is especially important when United Nations personnel are
investigating matters concerning the host State or its governmental
institutions. Just as it is the special duty of the host State to take every
step within its power to avoid situations interfering with the freedom of
enquiry of functionaries of the United Nations, so also is it the special
duty of the United Nations to do all within its power to ensure for them the
enjoyment of such freedom. Moreover, the responsibilities that apply to
foreign States apply even more strongly to States which, as in the present
case, are the home States of United Nations personnel engaged on their
international duties in their home State itself.
Conceptual Antecedents of the System of United Nations Immunities
In working out a system of immunity for United Nations officials who are
engaged upon their official duties, the international legal system has drawn
upon its past experience of the international system of immunity which had
evolved in regard to diplomats, consuls, members of armed services, and
others, who are physically within the territory of another State, while
performing functions for their home State. The relevant provision for the
United Nations is to be found in Article VI, Section 22, of the Convention
on the Privileges and Immunities of the United Nations, 1946.
All claims to immunity in customary international law raised two important
questions relevant to the matters now before the Court — determining whether
the act in question was performed in the course of the official's mission,
and determining questions relating to the jurisdiction of domestic courts
of the host country.
The case-law regarding diplomatic immunity contains a strong current of
decisions indicating that the domestic courts of the host State have
strongly and successfully asserted their authority to determine these
questions. [p 94]
For a representative selection of decisions on this topic, it will suffice
to refer to the 1928 case of Bigelow, the Director of the Passport Section
of the United States Consulate in ParisFN2 decided by the French courts; the
1955 case of the American serviceman CheneyFN3 decided in the Japanese
courts; the 1982 case of the Director of the Portuguese Commercial Office
in BrusselsFN4 decided by the Belgian courts; and the 1988 case of the
Counsellor of the German Embassy in ChileFN5 decided by the Chilean courts.
These are sufficient to indicate that domestic courts have in general
claimed the exclusive right to determine, in cases of qualified immunity,
whether the act in question was performed within the ambit of the official
functions of the functionary concerned.
---------------------------------------------------------------------------------------------------------------------
FN2
Princess Zizianoff v. Kahn and Bigelow, (1927-1928) 4 ILR (Annual Digest),
p. 384.
FN3 Japan v. Cheney, (1960) 23 ILR 264.
FN4 Portugal v. Goncalves, (1990) 82 ILR 115.
FN5 Szurgelies and Szurgelies v. Spohn, (1992) 89 ILR 44.
---------------------------------------------------------------------------------------------------------------------
United Nations Functionaries Distinguished from State Representatives
Some important distinguishing features must, however, be noted between the
immunities of State officials and those of the functionaries of the United
Nations.
The duties of the latter are not restricted to the service of any
particular State, but are owed to the community of States as represented by
the United Nations. The limits of their functions are not determined by any
particular State, but are defined on behalf of the international community
by the Secretary-General of the United Nations. Their protections are
claimed, not on behalf of any particular State, but on behalf of the
international community whom such functionaries serve. A dispute arising
out of their activities is not justiciable within the limited perspectives
of the States involved, but engages the global interests of the United
Nations. As "the supreme type of international organization"FN6, the
functions and interests of the United Nations are on a different plane from
those of any individual nation State.
---------------------------------------------------------------------------------------------------------------------
FN6
Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, l.C.J. Reports 1949, p. 179.
---------------------------------------------------------------------------------------------------------------------
These essential differences lift the matter into a different frame of
reference and cannot pass unnoticed as international law moves towards a
universally applicable system of administrative jurisprudence covering the
conduct and protections of United Nations personnel wherever in the world
their missions may take them.
It follows that the jurisprudence that has grown up around the exclu-[p 95]
sive rights of the domestic courts of the host State to determine these
questions is not necessarily applicable in its totality where United Nations
personnel are involved. There may well need to be some differences of
approach which, while paying due regard to the autonomy of domestic courts,
also take into account the wider interests of the world community, and the
competence and special responsibilities of the United Nations as
representing that community. As this Court has observed concerning the
United Nations:
"It must be acknowledged that its Members, by entrusting certain functions
to it, with the attendant duties and responsibilities, have clothed it with
the competence required to enable those functions to be effectively
discharged."FN7
------------------------------------------------------------------------------------------------------------
FN7
Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949. p. 179.
------------------------------------------------------------------------------------------------------------
United Nations activity in a number of sensitive areas is fraught with a
diversity of problems if a domestic court is free to disregard the
determination of the Secretary-General, the chief administrative authority
of the United Nations, in relation to the immunity enjoyed by a United
Nations functionary.
Locally sensitive issues could crowd out perspectives regarding the global
norms applicable to such situations. Divergent and incompatible domestic
decisions in different countries could blur the general principles
applicable. The authority of considered opinions reached at the highest
possible level of United Nations administration regarding the functions of
its own personnel could be weakened. The effectiveness of the United Nations
in discharging its far-flung responsibilities could be impaired.
All these are important concerns raised by the matter under consideration
by the Court.
The Need for Uniformity in the Jurisprudence Relating to This Matter
If domestic courts can make their rulings without regard to the opinion of
the Secretary-General, the lack of uniformity among these rulings, and the
different principles and standards thereby applied in different countries
would impede both the fairness of international administration and the
evolution of a uniform system of international administrative law.
While domestic autonomy is a principle which must be accorded the greatest
respect, it must be acknowledged that the United Nations system, as an
organization functioning in the global interest, can only use its authority
effectively in that global interest if its agents can discharge their [p 96]
duties according to a common set of principles, and not if the régime
governing their actions varies from country to country depending on the
disparate ways in which various domestic judiciaries may choose to
determine the self-same issue.
The expanding scope and growing complexity of United Nations activities
render the evolution of a uniform administrative jurisprudence in this area
a matter of vital importance. That jurisprudence, while not neglectful of
the varying nuances of different local conditions and backgrounds, would at
the same time exhibit an ordered harmony of general principles and standards
commanding international recognition.
Acceptance of the binding nature of the Secretary-General's opinion, unless
there is manifest reason to depart therefrom, helps considerably towards
establishing such uniformity, irrespective of the venue of the
investigation.
The evolution of a common set of principles applicable to matters of this
sort would, by producing a more uniform system of international
administrative law, in turn reinforce the authority of these principles in
specific situations wherever they may occur. It would also avoid the
incongruous situation of different rapporteurs — or indeed the same
rapporteur — enjoying different degrees of immunity in different countries,
depending on where the relevant duties are performed. This possibility is
well illustrated by the case of the present Rapporteur, whose duties require
him to function in a diversity of jurisdictions. Such a result is to be
avoided as far as is possible within the limits of the principles
applicable.
In so sensitive a field as human rights, the freedom and independence of
rapporteurs would be gravely affected if there should be varying standards
and hence a resulting uncertainty regarding the principles applicable to
this matter.
Conclusiveness of Secretary-General's Determination
Since it is essential to United Nations staff that they receive sufficient
protection to be able to discharge their missions with independence, and
since the duty of protecting its staff in the exercise of such duties lies
so heavily on the United Nations, great importance must attach to the views
of its chief functionary, the Secretary-General, regarding the question
whether immunity does or does not attach in a given case.
The Secretary-General is better informed than any external authority
regarding such questions as the limits of a given agent's functions, the
purpose or purposes the appointment was intended to serve, and the needs of
the United Nations in relation to any particular enquiry. He is better
informed than any other authority of the practice relating to, and the
factual background surrounding, the particular matter. With his [p 97]
unique overview of the entire scheme of United Nations operations, he, more
than any other authority, can assess a given agent's functions within the
overall context of the rationale, traditions and operational framework of
United Nations activities as a whole.
Any attempt to determine the applicability of the privileges and immunities
of the United Nations to a particular rapporteur in particular
circumstances without reference to the opinion of the Secretary-General
would fail to take into account an important part of the material essential
to an informed decision.
Moreover, within the United Nations system, there is a practice of
recognition of the conclusiveness of the Secretary-General's authority in
this regard, and there are General Assembly resolutions, such as resolution
36/238 of 18 December 1981, which indicate the special importance accorded
to the view of the Secretary-General on the entire range of matters relating
to administration within the Organization. The views of the United Nations'
highest administrative authority on an essentially administrative matter
such as the extent of a particular official's sphere of authority — a
question so eminently within his knowledge and supervisory functions —
cannot be disregarded without detriment to the entire system.
The Secretary-General's determination as to whether a particular action was
within an official's or rapporteur's sphere of authority should therefore
be viewed as binding on the domestic tribunal, unless compelling reasons can
be established for displacing that weighty presumption. I am in complete and
respectful agreement with the Court in this regard. There is no element of
arbitrariness here, for if a State disputes such a ruling by the
Secretary-General, there is always room for the matter to be brought before
this Court for an advisory opinion in terms of Section 30 of the Convention.
Correlative Obligations of Rapporteurs
In the present case, the Human Rights Commission has noted with appreciation
the work of the Special Rapporteur, as shown in resolutions 1995/36 of 3
March 1995, 1996/34 of 9 April 1996, 1997/23 of 11 April 1997, and 1998/35
of 17 April 1998FN8. It has also extended the Special Rapporteur's mandate
for an additional period of three years by resolution 1997/23FN9, after the
statement in question. The Secretary-General has determined that the Special
Rapporteur's statements were made while acting in the course of the
performance of his mission as Special Rapporteur of the Commission. The
Court has specifically endorsed the cor-[p 98]rectness of the
Secretary-General's determination (para. 56). For the purposes of this
reference, matters are thus definitively settled.
---------------------------------------------------------------------------------------------------------------------
FN8
Dossier Nos. 5-8.
FN9 Dossier No. 7.
---------------------------------------------------------------------------------------------------------------------
Yet this reference affords an opportunity to stress the essentiality of the
duty of rapporteurs, and indeed of all United Nations functionaries, to
ensure always that they act within the terms and the limits of their
mandate.
As the Court has observed:
"it need hardly be said that all agents of the United Nations, in whatever
official capacity they act, must take care not to exceed the scope of their
functions, and should so comport themselves as to avoid claims against the
United Nations"FN10
------------------------------------------------------------------------------------------------------------
FN10
Present Advisory Opinion, para. 66.
------------------------------------------------------------------------------------------------------------.
A basic premise underlying the Court's Opinion, as well as this separate
opinion, is that there is a duty of protection lying upon the United Nations
to ensure that its officials are preserved harmless for acts performed in
the course of their duty. It follows that any right a United Nations
official enjoys by virtue of this principle is matched by a correlative
duty.
It is thus an important corollary to the propositions set out earlier in
this opinion that, complementary to the United Nations' duty of protection
of its functionaries, a corresponding duty and responsibility lie on all
United Nations personnel to ensure that whatever actions they take or
statements they make are always within the limits of the performance of
their duties — thus translating into this specific sphere of international
law the principle of correlativity so well recognized in analytical
jurisprudence. Unless this precondition is satisfied, United Nations
personnel would be travelling outside the area of protection accorded to
them. In this way, they protect both themselves and the United Nations,
which owes a duty of protection to them. This obligation applies especially
in regard to public statements which their duties may oblige them to make
from time to time regarding their work.
Conclusion
For all these reasons, I am in agreement with the Court in its conclusions
regarding the question referred to it.
(Signed) Christopher Gregory Weeramantry.
[p 99]
SEPARATE OPINION OF JUDGE ODA
Table of contents
|
|
Paragraphs |
|
1.
Introduction |
1-2 |
|
|
|
|
2.
Modification of the Questions to Be Put to the Court
|
3-6 |
|
|
|
|
3.
Irrelevancy of the Secretary-General's "Exclusive Authority"
|
7-10 |
|
|
|
|
4.
Mr. Cumaraswamy's Legal Immunity — Difference between the United
Nations and Malaysia on the Interpretation and Application of the
Convention |
11-17 |
|
|
|
|
5.
Exemption from Taxed Costs
|
18-19 |
|
|
|
|
6.
Decision on Immunity by the Malaysian Courts
In
Limine
Litis
|
20-22 |
|
|
|
|
7.
Legal Obligation of Malaysia
|
23-26 |
[p 100]
1. Introduction
1. I voted in favour of paragraphs (1) (a), (1) (b), (2) (b) and (3) of the
operative part of the Court's Advisory Opinion, which mainly relate to the
application of the 1946 Convention on the Privileges and Immunities of the
United Nations (hereinafter called "the Convention") in the case of Mr.
Cumaraswamy, Special Rapporteur of the United Nations Commission on Human
Rights on the independence of judges and lawyers. However, I voted against
paragraph (2) (a) and paragraph (4) of the operative part, which involve the
legal obligations of Malaysia in this case.
2. Before explaining the reasons behind my voting position on each of the
paragraphs of the operative part, I would like to present my general views
on the Court's Advisory Opinion as a whole. I am of the view that the Court
has not necessarily given an adequate response to the questions set out in
decision 1998/297 by the Economic and Social Council (hereinafter called
"ECOSOC"), even though the Court's intention in paragraphs (1) (a), (1) (b)
and (3) of the operative part appears to be to respond to the first question
put forward by ECOSOC, while the intention of paragraphs (2) (a), (2) (b)
and (4) of the operative part is to respond to the second question put
forward by ECOSOC.
2. Modification of the Questions to Be Put to the Court
3. First of all, I must point out the peculiarities of the present case. As
correctly stated in paragraphs 20, 35 and 37 of the Advisory Opinion, the
original text of the questions to be put before the Court prepared by the
United Nations Secretary-General for ECOSOC was different from the text of
the questions which were in fact spelled out in ECOSOC's decision 1998/297
dated 5 August 1998.
4. The text which the Secretary-General originally prepared in his note of
28 July 1998 on the "Privileges and Immunities of the Special Rapporteur of
the Commission on Human Rights on the Independence of Judges and Lawyers"
was drafted in order to find out whether:
"the Secretary-General. . . ha[s] the exclusive authority to determine
whether words were spoken [by Mr. Cumaraswamy] in the course of the
performance of a mission for the United Nations within the meaning of
Section 22 (b) of the Convention" (E/1998/94, para. 21).
The form of the questions was changed in a somewhat abrupt manner when,
following informal consultations, the draft decision was formulated by the
Vice-President of ECOSOC on 5 August 1998 (E/1998/L.49/ Rev.l) and was
adopted by ECOSOC on the same day, as decision 1998/ 297. The questions to
be put to the Court in ECOSOC's draft decision [p 101] thus formulated (as
quoted in paragraph 6 below) differed significantly from what the
Secretary-General had originally suggested one week before on 28 July 1998,
as quoted above.
5. The circumstances in which the change to the draft occurred are not known
outside of ECOSOC itself, as the Court explains in paragraph 37 of the
Court's Advisory Opinion:
"Although the Summary Records of [ECOSOC] do not expressly address the
matter, it is clear that [ECOSOC], as the organ entitled to put the request
to the Court, did not adopt the questions set forth at the conclusion of the
note by the Secretary-General, but instead formulated its own question in
terms which were not contested at that time."
The Court now has to respond to the questions presented in that final form
by ECOSOC, as it correctly goes on to state in that same paragraph: "the
Court will now answer the question as formulated by [ECOSOC]".
6. Whatever the reasons were behind the change in the questions, it is the
task of the Court to respond to the questions which were actually put
forward by ECOSOC, the first of which concerned:
"the legal question of the applicability of Article VI, Section 22, of the
[Convention] in the case of [Mr.] Cumaraswamy as Special Rapporteur of the
Commission on Human Rights on the independence of judges and lawyers, taking
into account the circumstances set out in paragraphs 1 to 15 of the note by
the Secretary-General".
It appears to me, as already stated in paragraph 2 of this opinion, that the
Court responds to this question in paragraphs (1) (a) and (1) (b) of the
operative part of the Advisory Opinion; paragraph (3) also appears to be the
Court's response to the first question, of which an explanation is given in
Section 5 of this opinion (see paragraph 18 below).
3. Irrelevancy of the Secretary-General's "Exclusive Authority"
7. The Court is now requested, under Article VIII, Section 30, of the
Convention, to give an advisory opinion on "[a] legal question involved" in
"a difference . . . between the United Nations on the one hand and
[Malaysia] on the other hand" as spelled out in the first question in
ECOSOC's decision.
8. The authority of the Secretary-General is in fact not directly at issue,
even though the arguments of both the Parties to the difference, namely the
United Nations and Malaysia, in the written and oral plead-[p 102]ings, as
well as the arguments of those States which participated in the proceedings,
were largely concentrated on that very issue. While the Advisory Opinion
discussed the arguments of the Parties on this matter (cf. paras. 32, 33 and
34), the Court's conclusions in paragraphs (1) (a) and (1) (b) of the
operative part of the Advisory Opinion were not in fact founded on the
United Nations Secretary-General's allegedly authoritative determination
with regard to the applicability of the Convention in the case of Mr.
Cumaraswamy or to Mr. Cumaraswamy's entitlement to immunity from Malaysian
legal process.
9. The Secretary-General's alleged primary responsibility and definitive
authority are irrelevant in this respect in relation to the question put to
the Court by ECOSOC. I find it difficult to see why the Court is so very
much concerned with the authority purported to be vested in the United
Nations Secretary-General. The Court states in paragraph 49 that: "[ECOSOC]
wishes to be informed of the Court's opinion as to whether ... the
Secretary-General's finding that the Special Rapporteur acted in the course
of the performance of his mission is correct"; in paragraph 50, that:
"[t]he Secretary-General, as the chief administrative officer of the
Organization, has the authority and the responsibility to exercise the
necessary protection where required"; in paragraph 51, that: "the
Secretary-General has the primary responsibility and authority to protect
the interests of the Organization and its agents, including experts on
mission"; in paragraph 52, that: "the Secretary-General . . . has on
numerous occasions informed the Government of Malaysia of his finding";
and, in paragraph 56, that: "the Court is of the opinion that the
Secretary-General correctly found [in this matter]".
10. I do not contest the substance of what the Court thus stated in its
Advisory Opinion in connection with the authority of the Secretary-General.
However, it is not for the Secretary-General but for the Court to exercise
the authority vested in it to make a determination, at the request of
ECOSOC, on the applicability of the Convention, and on Mr. Cumaraswamy's
entitlement to immunity.
4. Mr. Cumaraswamy's Legal Immunity — Difference between the United Nations
and Malaysia on the Interpretation and Application of the Convention
11. The statement in paragraph (1) (a) of the operative part of the Advisory
Opinion that "[the Convention] is applicable in the case of [Mr.]
Cumaraswamy as Special Rapporteur of the Commission on Human Rights" is
self-evident, since Mr. Cumaraswamy was duly appointed as a "Special
Rapporteur" of the Commission, and "experts" under that Convention are
interpreted to include "special rapporteurs" appointed by the United
Nations. [p 103]
12. The essential question concerns whether Mr. Cumaraswamy is entitled to
"immunity from legal process of every kind" (Convention, Art. VI, Sec.
22(b)) in spite of his "[comments] on certain litigations that had been
carried out in Malaysian courts", comments which allegedly contained
defamatory words and published in an article in the November 1995 issue of
International Commercial Litigation. The Convention provides that:
"[e]xperts . . . 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 ... In
particular they shall be accorded:
………………………………………………………………………………………………
(b) in respect of words spoken or written and acts done by them in the
course of the performance of their mission, immunity from legal process of
every kind." (Art. VI, Sec. 22 (b).)
13. The issue on which the Court is bound to reply is whether the words
allegedly spoken by Mr. Cumaraswamy in the interview published in the
November 1995 issue of International Commercial Litigation do or do not fall
within the meaning of "words spoken ... in the course of the performance of
[his] mission". The Court answers this question in paragraph (1) (b) of the
operative part in the affirmative, stating that:
"[Mr.] Cumaraswamy is entitled to immunity from legal process of every kind
for the words spoken by him during an interview as published in an article
in the November 1995 issue of International Commercial Litigation."
14. What is really at issue in the present case is not the content of the
words themselves which Mr. Cumaraswamy was alleged to have uttered during
the course of his interview as published in the journal International
Commercial Litigation. The Court properly states in paragraph 56 that "[f]he
Court is not called upon in the present case to pass upon the aptness of the
terms used by the Special Rapporteur or his assessment of the situation".
What the Court should have discussed in the present case is whether Mr.
Cumaraswamy spoke the words in the course of the performance of his mission
as Special Rapporteur of the United Nations Commission and was therefore
entitled to legal immunity granted under the Convention in connection with
those words.
15. The words "in the course of the performance of [the] mission", or some
similar expression, have often been utilized in the various instruments
relating to diplomatic privileges and immunities, and also to the privileges
and immunities for the armed forces stationed in foreign countries in
pursuance of bilateral agreements. The interpretation of these expressions
varies according to each case. No rule appears to have been firmly
established in the doctrine or practice of international law in this [p 104]
respect. It might be considered debatable whether Mr. Cumaraswamy's agreeing
to give an interview for a business journal is within "the course of the
performance of [his] mission" as a special rapporteur and is therefore
within the scope of the immunity granted under the Convention. However, it
is in fact standard practice for special rapporteurs of the United Nations
commissions to have contact with the media on the subjects essentially
connected with the mandates given to them by the United Nations. Mr.
Cumaraswamy's mandate consists of the following task:
"(a) to inquire into any substantial allegations transmitted to him . . .;
(b) to identify and record not only attacks on the independence of the
judiciary, lawyers and court officials but also progress achieved in
protecting and enhancing their independence . . .;
(c) to study . . . important topical questions of principle with a view to
protecting and enhancing the independence of the judiciary and lawyers"
(Advisory Opinion, para. 44).
It seems clear to me that what Mr. Cumaraswamy said in his interview with
the journal did in truth constitute words spoken "in the course of the
performance of [his] mission".
16. The following fact may also be pertinent in this respect. Previous to
the interview by the journal published in its November 1995 issue, Mr.
Cumaraswamy, apparently acting in his capacity as Special Rapporteur of the
Commission on Human Rights issued, on 23 August 1995, a press statement
reading in part:
"Complaints are rife that certain highly placed personalities in Malaysia
including those in business and corporate sectors are manipulating the
Malaysian system of justice and thereby undermining the due administration
of independent and impartial justice by the courts."
Several days later, on 29 August 1995, Mr. Cumaraswamy set out his concerns
about the Malaysian judicial system in a letter to the Chairman of the
Commission on Human Rights. Mr. Cumaraswamy's press statement was later
referred to in his second report submitted on 1 March 1996 to the Commission
on Human Rights. Mr. Cumaraswamy is quoted in the November 1995 issue of
International Commercial Litigation as stating that: "Complaints are rife
that certain highly placed personalities in the business and corporate
sectors are able to manipulate the Malay-sian system of justice" — words
quite similar to those he had previously used in his capacity as Special
Rapporteur in his press statement of 23 August 1995, as referred to above.
Thus, while the commercial companies in Malaysia claimed that they were
bringing defamation suits [p 105] against Mr. Cumaraswamy on account of
words spoken during the interview with International Commercial Litigation,
he had in fact already, some three months earlier, made an almost identical
statement to the press at his own initiative in his capacity as Special
Rapporteur.
17. In sum, I totally agree with the Court when it states in paragraph (1)
(b) of the operative part, which I reiterate here, that:
"[Mr.] Cumaraswamy is entitled to immunity from legal process of every kind
for the words spoken by him during an interview as published in an article
in the November 1995 issue of International Commercial Litigation".
5. Exemption from Taxed Costs
18. Paragraph (3) of the operative part: "[Mr.] Cumaraswamy shall be held
financially harmless for any costs imposed upon him by the Malaysian
courts, in particular taxed costs", is included in the Advisory Opinion
because the Court was informed by means of the Addendum to the
Secretary-General's Note (E/1998/94/Add.l) that Mr. Cumaraswamy had been
served with a Notice of Taxation and Bill of Costs dated 28 July 1998. As
suggested in paragraph 6 above, paragraph (3) of the operative part is made
in response to ECOSOC's first question.
19. In spite of my full agreement with what the Court stated in this
respect, I believe that this paragraph need not have been specifically
included in the operative part of the Advisory Opinion, once the first
question put forward by ECOSOC had been answered in the affirmative, since
the matter of "costs imposed upon [Mr. Cumaraswamy] by the Malaysian courts,
in particular taxed costs", is certainly one included in immunity from legal
process. If a person is immune from legal process before the national
courts, he must also be entitled to immunity from any costs imposed upon
him, as the Court correctly states in paragraph 64 of the Advisory Opinion:
"the immunity ... to which the Court finds Mr. Cumaraswamy entitled entails
holding Mr. Cumaraswamy financially harmless for any costs imposed upon him
by the Malaysian courts, in particular taxed costs".
In this respect, paragraph (3) simply states the obvious and, if this matter
is to be mentioned in the operative part of the Advisory Opinion, then it
should have been stated immediately after paragraphs (1) (a) and (1) (b)
rather than after paragraphs (2) (a) and (2) (b), which deal with the legal
obligations of Malaysia.[p 106]
6. Decision on Immunity by the Malaysian Courts In Limine Litis
20. I agree entirely with the Court in its finding in paragraph (2) (b) of
the operative part that the Malaysian national courts should have decided
the issue of immunity at the outset: "the Malaysian courts had the
obligation to deal with the question of immunity from legal process as a
preliminary issue to be expeditiously decided in limine litis". Assuming
that Mr. Cumaraswamy was entitled to immunity under the Convention, at which
stage did Malaysia begin to fail to ensure that immunity? When did the
responsibility of Malaysia as a State in this respect begin? Certain
Malaysian commercial companies initiated defamation suits against Mr.
Cumaraswamy before the Malaysian national courts. The matter of whether the
Malaysian courts should have dismissed the suits before issuing Mr.
Cumaraswamy with the Order of Summons on 12 December 1996, or after having
heard his views in writing or in his presence at the formal proceedings, is
a matter relating to diplomatic privileges and immunities and constitutes a
controversial issue — and, in fact, the practice and jurisprudence of
States in this respect varies.
21. In fact, the national courts of any State cannot reach a decision
concerning the immunity of a special rapporteur until they are aware of his
or her status as a person entitled to claim legal immunity. The writ of
summons issued by the Malaysian national courts may well have been
justifiably issued against Mr. Cumaraswamy. However, upon being informed of
the mission entrusted to Mr. Cumaraswamy by the United Nations — whether
directly by Mr. Cumaraswamy himself upon his being summoned to appear before
the relevant court, or by the Malaysian Foreign Office, or even by
receiving directly a note or certificate issued by the United Nations
Secretary-General — the Malaysian national courts should at that point have
determined the preliminary issue, namely, whether Mr. Cumaraswamy was immune
in respect of words spoken by him in the course of an interview with a
business journal.
22. The Malaysian High Court of Kuala Lumpur failed to rule on this matter
and instead, on 28 June 1997, ordered the Special Rapporteur to join his
plea for immunity to his defence on the merits. Mr. Cumaraswamy could have
claimed — and actually did claim, with the support of the certificate issued
by the Secretary-General — his privileges and immunities before the
Malaysian domestic courts. In this particular case, the Malaysian domestic
courts should, at the jurisdictional phase, have then disposed in limine
litis of the suits brought by the Malaysian commercial firms against Mr.
Cumaraswamy. [p 107]
7. Legal Obligation of Malaysia
23. (In general.) I would have some doubts as to whether paragraph (2) (a)
and paragraph (4) of the operative part really answer the second question
put by ECOSOC, namely, "[ECOSOC] . . . [Requests . . . an advisory opinion
from the International Court of Justice ... on the legal obligations of
Malaysia in this case". Putting aside the issue of whether ECOSOC's second
question was itself adequately formulated by that organization, the Court's
answer to the second question should be simply that Malaysia is legally
obliged to ensure that Mr. Cumaraswamy, Special Rapporteur of the Commission
on Human Rights, enjoys in this case the immunities granted under Article
VI, Section 22, of the Convention.
24. (Paragraph (2) (a) of the operative part.) The Malaysian national courts
decided to examine Mr. Cumaraswamy's plea in the merits phase of the
proceedings against him. Malaysia, as a State, is responsible for the
actions of its national courts in allowing the proceedings against Mr.
Cumaraswamy to be pursued, rather than dismissing them. In other words, it
is Malaysia, as a State, that is responsible for the failure of its organs —
the judicial power in this case — to ensure Mr. Cumaraswamy's legal
immunity. The matter of whether or not an executive department of the
Malaysian Government informed its courts of the position taken by the
Secretary-General is not a relevant issue in this case. I cannot agree with
the conclusion reached by the Court in paragraph 62 of its Advisory Opinion
that:
"the Government of Malaysia had an obligation, under Article 105 of the
Charter and under the [Convention], to inform its courts of the position
taken by the Secretary-General" (emphasis added).
Thus, I do not support what the Court has stated in paragraph (2) (a) of the
operative part :
"the Government of Malaysia had the obligation to inform the Malaysian
courts of the finding of the Secretary-General that [Mr.] Cumaraswamy was
entitled to immunity from legal process".
25. (Paragraph (4) of the operative part.) The Malaysian Government is
obliged by Article VIII, Section 30, of the Convention to accept this
Advisory Opinion as decisive and it is therefore not necessary for the Court
to make any explicit statement such as that in paragraph (4):
"the Government of Malaysia has the obligation to communicate this Advisory
Opinion to the Malaysian courts, in order that Malaysia's international
obligations be given effect and [Mr.] Cumaraswamy's immunity be respected".
[p 108]
Paragraph (4) is superfluous. It would be desirable that the views of the
International Court of Justice should be communicated to the relevant
Malaysian courts through the channel of the Foreign Office, but I do not
agree that the Government of Malaysia is obliged to do so.
26. (Summary.) I thus voted against paragraph (2) (a) and against paragraph
(4) of the operative part for the reasons stated above. In responding to the
second question concerning the matter of Malaysia's legal obligations, the
Court should, instead of making unnecessary statements concerning the
responsibility to be borne by the United Nations for any damage arising from
acts performed by the United Nations or by its agents acting in their
official capacity, or concerning the scope of the agents' functions which
they "must take care not to exceed" (Advisory Opinion, para. 66), have
indicated whether the Government of Malaysia should make reparation to the
United Nations as well as to Mr. Cumaraswamy for its non-compliance with the
responsibility which it has to bear and how that reparation for the damages
caused to the United Nations and/or to its Special Rapporteur, Mr.
Cumaraswamy (if any is due), should be effected.
(Signed) Shigeru Oda.
[p 109]
SEPARATE OPINION OF JUDGE REZEK
[Translation ]
The obligation incumbent upon Malaysia is not merely to notify the
Malaysian courts of the finding of the Secretary-General, but to ensure
that the immunity is respected — A Government will ensure respect for
immunity if it uses all the means at its disposal in relation to the
judiciary in order to have that immunity applied, in exactly the same way
as it defends its own interests and positions before the courts —
Membership of an international organization requires that every State, in
its relations with the organization and its agents, display an attitude at
least as constructive as that which characterizes diplomatic relations.
Having established the exact scope of the request for advisory opinion
(paras. 32-37), the Court examined the facts in the light of the applicable
law and concluded that the Special Rapporteur is entitled to immunity from
legal process of every kind before national courts. The Secretary-General
was therefore correct in ruling as he did. It accordingly served no purpose
for the Court to go into the question of whether or not the
Secretary-General's power of determination was exclusive and to decide how
the State in question should proceed in the event that it contested the
Secretary-General's determination.
I share the views of the majority on these points, but I would wish to
emphasize that the obligation incumbent upon Malaysia is not merely to
notify the Malaysian courts of the finding of the Secretary-General, but to
ensure that the immunity is respected.
This is in no way to suggest a course of conduct incompatible with the very
notion of the independence of the judiciary (which independence, moreover,
constitutes the subject-matter of the Special Rapporteur's mission). The
Government will ensure respect for immunity if, having endorsed the finding
of the Secretary-General, it uses all the means at its disposal in relation
to the judiciary (action by the public prosecutor or the advocate-general in
the majority of countries) in order to have that immunity applied, in
exactly the same way as it defends its own interests and positions before
the courts. Admittedly, where the judiciary is an independent power, it is
always possible that, notwithstanding the Government's efforts, immunity
may finally be denied by the highest judicial instance. In that hypothetical
case, just as in the concrete one of the refusal by the Malaysian courts to
deal with the question of immunity in limine litis, Malaysia would incur
international responsibility vis-a-vis the United Nations by reason of the
acts of a power other than the executive. That would not be a situation
unknown to international law, or indeed a rare occurrence in the history of
international relations.
There is no obligation on sovereign States to found international
organizations, or to remain members of them against their will. However, [p
110] the fact of membership — even in the case of an organization whose
objectives are less essential than those of the United Nations, and in
fields less salient than that of human rights — requires that every State,
in its relations with the organization and its agents, display an attitude
at least as constructive as that which characterizes diplomatic relations
between States.
(Signed) Francisco REZEK.
[p 111]
DISSENTING OPINION OF JUDGE KOROMA
1. Much as I would have liked to vote in favour of the Advisory Opinion, as
it might assist in settling the differences which had arisen between the
United Nations and the Government of Malaysia with regard to the
interpretation and application of the General Convention on the Privileges
and Immunities of the United Nations (hereinafter "the Convention"),
however, in view of the fact that the Opinion is to be regarded as an
authoritative legal pronouncement by the Court on the Convention, and is to
be accepted as decisive by the Parties, and in view of the peculiar
circumstances surrounding the dispute, I find myself unable to support and
justify the Opinion, by reason of the terms of the Convention, the general
principles of justice, the peculiarities of the dispute and my own legal
conscience. I have therefore been constrained to vote largely against the
Opinion and my views for doing so are set out in this opinion.
2. At the outset it should be noted that this dispute is not about the [p
112] human rights of Mr. Cumaraswamy, Special Rapporteur of the Human Rights
Commission, as such. Nor is it about whether Malaysia is in breach of its
obligations under the Human Rights Conventions to which it is a party. The
dispute is about whether Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations is applicable to Mr.
Cumaraswamy — that is to say, whether words spoken or written by him were
done so in his capacity as Special Rapporteur and in the course of the
performance of his mission — and about the legal obligations of Malaysia.
3. The circumstances of this case are unusual. According to the material
presented to the Court, Mr. Cumaraswamy, in an interview published in the 5
November 1995 issue of the magazine International Commercial Litigation,
and in which he was referred to as Special Rapporteur on the independence of
judges and lawyers, was reported to have said with reference to a specific
case (the Ayer Molek case), that it looked like "a very obvious, perhaps
even glaring example of judge-choosing", while stressing that he had not
finished his investigation. Mr. Cumaraswamy was also quoted as having said:
"Complaints are rife that certain highly placed personalities in the
business and corporate sectors are able to manipulate the Malaysian system
of justice." He added: "But I do not want any of the people involved to
think I have made up my mind." He was further reported to have said: "It
would be unfair to name any names, but there is some concern about this
among foreign businessmen based in Malaysia, particularly those who have
litigation pending."
4. As a result of that interview a number of lawsuits were filed against Mr.
Cumaraswamy by companies and individuals asserting that the published
article contained defamatory words that had "brought them into public
scandal, odium and contempt", and sued for damages including exemplary
damages for slander.
5. The Legal Counsel of the United Nations acting on behalf of the
Secretary-General of the United Nations, and later the Secretary-General
himself, having considered the circumstances of the interview and the
controverted passages of the interview, determined that Mr. Cumaraswamy was
interviewed in his official capacity as Special Rapporteur and requested the
Malaysian authorities to promptly advise the Malaysian courts of the Special
Rapporteur's immunity from legal process with respect to the lawsuits.
6. On 12 March 1997 the Minister for Foreign Affairs of Malaysia filed a
certificate with the trial court in which that court was invited to
determine at its own discretion whether immunity applied, the certificate
having stated that this was the case "only in respect of words spoken or
written and acts done by him in the course of the performance of his
mission".
7. On 28 June 1997 the Judge of the Malaysian High Court concluded [p 113]
that she was "unable to hold that the Defendant is absolutely protected by
the immunity he claims", in part because she considered that the
Secretary-General's note was merely "an opinion" with scant probative value
and no binding force upon the court and that the Minister for Foreign
Affairs' certificate "would appear to be no more than a bland statement as
to a state of fact pertaining to the Defendant's status and mandate as a
Special Rapporteur and appears to have room for interpretation". The
Malaysian court ordered that the Special Rapporteur's motion be dismissed
with costs; that the costs be taxed and paid forthwith by him and that he
file and serve his defence within 14 days. On 8 July the Court of Appeal of
Malaysia dismissed Mr. Cumaraswamy's motion for a stay of execution.
8. After efforts to resolve the dispute did not materialize in a negotiated
settlement, the Secretary-General's Special Envoy advised that the matter
should be referred to the Economic and Social Council (ECOSOC) to request an
advisory opinion from the International Court of Justice. The Government of
Malaysia acknowledged the Organization's right to refer the matter to the
Council to request an advisory opinion in accordance with Section 30 of the
Convention, advised the Secretary-General's Special Envoy that the United
Nations should proceed to do so, and indicated that, while it would make
its own presentation to the International Court of Justice, it did not
oppose the submission of the matter to the Court through the Council.
9. The note by the Secretary-General (E/1998/94), referring the matter to
the Council, concluded with a paragraph 21 containing a proposal for two
questions to be submitted to the Court for an advisory opinion:
"21……
'Considering the difference that has arisen between the United Nations and
the Government of Malaysia with respect to the immunity from legal process
of Mr. Dato' Param Cumaraswamy, the United Nations Special Rapporteur of the
Commission on Human Rights on the Independence of Judges and Lawyers, in
respect of certain words spoken by him:
1. Subject only to Section 30 of the Convention on the Privileges and
Immunities of the United Nations, does the Secretary-General of the United
Nations have the exclusive authority to determine whether words were spoken
in the course of the performance of a mission for the United Nations within
the meaning of Section 22 (b) of the Convention?
2. In accordance with Section 34 of the Convention, once the
Secretary-General has determined that such words were spoken in the course
of the performance of a mission and has decided to maintain, or not to
waive, the immunity from legal process, does the Government of a Member
State party to the Convention have an obligation to give effect to that
immunity in its national courts [p 114] and, if failing to do so, to assume
responsibility for, and any costs, expenses and damages arising from, any
legal proceedings brought in respect of such words?
…………………………………………………………………………………………….
10. Section 30 of the Convention provides:
"Section 30: 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."
11. After considering the note by the Secretary-General, ECOSOC, without any
explanation, changed the question, as it was entitled to do, and requested
the Court to render an advisory opinion
"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 Dato' Param Cumaraswamy as Special Rapporteur of the Commission on
Human Rights on the independence of judges and lawyers, taking into account
the circumstances set out in paragraphs 1 to 15 of the note by the
Secretary-General, and on the legal obligations of Malaysia in this case".
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations provides that
"Section 22. 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:
………………………………………………………………………………………………
(b) in respect of words spoken or written and acts done by them in 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." (Emphasis added.)
In other words, the Convention would be applicable to an expert in respect
of words spoken or written and acts done by him in the course of the
performance of his mission. [p 115]
12. The Court in its Advisory Opinion reached the conclusion that Article
VI, Section 22, of the Convention is applicable in the case of Mr.
Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the
Independence of Judges and Lawyers, and that Mr. Cuma-raswamy is entitled to
immunity from legal process of any kind for the words spoken by him during
an interview as published in an article in the November 1995 issue of
International Commercial Litigation.
13. In my respectful opinion, for the Court to conclude that the Convention
is applicable to Mr. Cumaraswamy in this case, that question is
intrinsically and inextricably related to a finding whether the
controverted words were spoken in the course of the performance of his
mission. Furthermore, it would be inappropriate to reach such a conclusion
by applying only the first part of the provision. It would also be
injudicious as well as insufficient for the Court in making such a
determination to rely on the findings of some other organ or institution to
reach its conclusion, as the Court would appear to have done in this case.
The references (see paragraphs 50 and 51 of the Opinion) to the authority
and responsibility of the Secretary-General as chief administrative officer
of the Organization and protector of the mission with which an expert is
entrusted are, while incontestable, irrelevant to the question posed by
ECOSOC. Indeed, the Court itself has stated that it is the Council's
question as formulated which is to be answered by the Court. It cannot
therefore be both ways. Nor, in my view, is it necessarily conclusive that
"In the present case, the Secretary-General, or the Legal Counsel of the
United Nations on his behalf, has on numerous occasions informed the
Government of Malaysia of his finding that Mr. Cumaraswamy had spoken the
words quoted in the article in International Commercial Litigation in his
capacity as Special Rapporteur of the Commission and that he consequently
was entitled to immunity from 'every kind' of legal process."
While such information is to be given due weight and respect, the
Convention does not stipulate that it is conclusive, let alone binding. Nor
should it be considered adequate in order for the Convention to be
applicable, or for the judicial purposes of this case, that it has become
standard practice for Special Rapporteurs of the Commission to have contact
with the media. It is one thing to have contact with the media to enable a
Special Rapporteur to carry out his mandate, but, as the Court implied in
paragraph 66 of the Advisory Opinion, special rapporteurs, like all agents
of the United Nations, must take care not to exceed the scope of their
functions, and must express themselves with requisite prudence so as to
remain within their mandate. [p 116]
14. The question whether the Convention is applicable to Mr. Cumara-swamy is
one of mixed law and fact, and would have required the Court not only to
undertake an interpretation of the Convention but an enquiry into the facts
before arriving at its conclusion. It therefore does not seem sufficient for
this case for the Court to conclude that the Convention is applicable to Mr.
Cumaraswamy based on the formality of his appointment as Special Rapporteur
of the Human Rights Commission, or on the fact that he may have been
entrusted not only to do research but also with the task of monitoring human
rights violations and reporting on them. With respect, notwithstanding his
appointment or the fact that he has been entrusted with a mission by the
United Nations, this does not of itself allow a special rapporteur to
operate outside his mandate, and whether or not the Special Rapporteur was
acting within the scope of his mandate, given the facts and circumstances of
this case, ought to have been enquired into for the Court to be in a
position to conclude that the Convention is applicable to him. It is also my
considered view that this requirement is not vitiated or become superfluous
by the fact that it has become standard practice for special rapporteurs of
the Human Rights Commission to have contact with the media. Having contact
with the media cannot be regarded as a licence for a special rapporteur to
operate outside his mandate; whether or not the Special Rapporteur did so or
not in this particular case and for the purposes of the Convention is a
matter to be determined by the Court before it can conclude that the
Convention is applicable.
15. It is also my considered opinion that this request for an advisory
opinion, because of the peculiar circumstancesFN1 of the dispute, the issues
it involves, and its implication for the judicial character and function of
the Court, ought not to have been submitted to the Court. The dispute
between the Organization and the Government of Malaysia should rather have
been resolved on the basis of Article VIII — Settlement of Disputes —
(Section 29) of the Convention which provides as follows
---------------------------------------------------------------------------------------------------------------------
FN1
See Conditions of Admission of a State to Membership in the United Nations (
Article 4 of the Charter), Advisory Opinion. 1948, I.C.J. Reports 1947-1948,
p. 61.
---------------------------------------------------------------------------------------------------------------------
"Section 29. The United Nations shall make provisions for appropriate modes
of settlement of:
(a) disputes arising out of contracts or other disputes of a private law
character to which the United Nations is a party."
On the other hand, once the request had been submitted, the Court should
have exercised its judicial discretion and declined to answer the question
put to it. Nor do I find the argument persuasive that, because no party had
argued against giving the advisory opinion, the Court should therefore have
rendered an opinion. For the Court itself has emphasized [p 117] that it is
the guardian of its role as a judicial organ and has made it clear that,
although it considers the rendering of an advisory opinion as a duty, at the
same time, as a judicial organ, it has certain limits to its duty to reply
to a request for an opinionFN2. The Court should not have felt con-strained
to exercise its discretion of not answering the question as formulated
because of the Advisory Opinion it had earlier rendered in the Mazilu
caseFN3. In my view, not only is the instant case not identical with Mazilu,
but the circumstances are entirely different. Had due account been taken of
those differences as well as of the peculiar circumstances, a different
conclusion might have been reached.
---------------------------------------------------------------------------------------------------------------------
FN2
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, I.C.J. Reports 1950, p. 71.
FN3 Applicability of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations, Advisory Opinion. I.C.J.
Reports 1989, p. 177.
---------------------------------------------------------------------------------------------------------------------
16. Furthermore, and as noted earlier, the note of the Secretary-General
referring this matter to ECOSOC concluded with a paragraph 21 in which he
proposed two questions to be submitted to the Court for an advisory opinion.
17. The Council, after considering the note at the forty-seventh and
forty-eighth meetings of its substantive session held on 31 July 1998 and
pursuant to Article 96, paragraph 2, of the Charter of the United Nations
and in accordance with General Assembly resolution 89 (I) authorizing the
Council to request an advisory opinion from the Court, adopted decision
1998/297, in which it requested the Court to give an opinion, on a priority
basis, 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 Dato' Param Cumaraswamy as Special Rapporteur of the Commission on
Human Rights on the independence of judges and lawyers, taking into account
the circumstances set out in paragraphs 1 to 15 of the note by the
Secretary-General, and on the legal obligations of Malaysia in this case".
18. As indicated in paragraph 33 of the Advisory Opinion, following
submission of the request to the Court, the Legal Counsel of the United
Nations presented a written statement on behalf of the Secretary-General,
in which he requested the Court:
"to establish that, subject to Article VIII, Sections 29 and 30 of the
Convention, the Secretary-General has exclusive authority to determine
whether or not words or acts are spoken, written or done in the course of
the performance of a mission for the United Nations and whether such words
or acts fall within the scope of the mandate entrusted to a United Nations
expert on mission". [p 118]
19. Similarly, States participating in the proceedings expressed varying
views as to whether the General Convention requires dispositive legal effect
to be given to the Secretary-General's determination. According to the
United States, "the views of the Secretary-General in a given case are
highly relevant" (emphasis added); the United Kingdom takes the position
that it is "essential that all due weight is given to [the views of the
Secretary-General] by the national courts" (emphasis added). Italy had
expressed the following viewpoint on the issue:
"once ... a decision has been adopted, both the government and the judicial
authorities of the State where the issue of immunity has been raised are
nonetheless obliged to give immediate and careful consideration to the
delicate problems of immunity, and they must take due account of the weight
to be accorded to the determination made in this regard by the
Secretary-General of the United Nations.
It would be going too far to say that this imposes a legal duty on the
courts of the State where the issue of immunity has been raised to stay all
proceedings until the issue of immunity has been settled at the
international level. But, at the very least, it is to be expected that those
courts would display caution by avoiding hasty decisions which might entail
responsibility on the part of that State." (Emphasis added.)
20. Malaysia, for its part, as stated in the Advisory Opinion, contended
that the advisory opinion of the Court should be restricted to the existing
difference between the United Nations and Malaysia, which in its view
consists of the question, as formulated by the Secretary-General himself,
whether the Secretary-General of the United Nations has the exclusive
authority to determine whether words or acts of an expert on mission are
spoken, written or done in the course of the performance of his or her
mission and if, in consequence, the expert is entitled to immunity from
legal process pursuant to Section 22 (b) of the General Convention. In its
written statement Malaysia maintains that it
"considers that the Secretary-General of the United Nations has not been
vested with the exclusive authority to determine whether words were spoken
in the course of the performance of a mission for the United Nations within
the meaning of Section 22 (b) of the Convention".
In its oral pleadings, Malaysia maintained that
"in implementing Section 30, ECOSOC is merely a vehicle for placing a
difference between the Secretary-General and Malaysia before the Court.
ECOSOC does not have an independent position to assert as it might have had
were it seeking an opinion on some legal question other than in the context
in the operation of Section 30. ECOSOC ... is no more than an instrument of
reference, it cannot [p 119] change the nature of the difference or alter
the content of the question." (Emphasis added.)
21. In the light of the foregoing, it is to be observed that the question
asked by ECOSOC corresponds neither with the questions proposed by the
Secretary-General in his note to ECOSOC nor with those same issues as were
raised and discussed by the participating States in their written statements
or at the oral proceedings. A difference exists between the legal question
posed by ECOSOC relating to the applicability of Article VI, Section 22, of
the Convention on the Privileges and Immunities of the United Nations, and
the one recommended by the Secretary-General and understood and addressed
by Malaysia and a number of participating States, which concerns the issue
of whether the Secretary-General of the United Nations is vested with
exclusive authority to determine whether words were spoken in the course of
the performance of a mission for the United Nations and whether such words
fall within the meaning of Section 22 (b) of the Convention.
22. Where a request to the Court for an advisory opinion involving the
interpretation and application of the Convention is in conformity with
Article 65, paragraph 2, of the Statute of the Court, that is to say it
contains an exact statement of the question upon which an opinion is
required, and is also in conformity with Article 96 of the Charter, then it
would appear, as in this case, formally to meet all the required criteria
for the Court to perform its advisory function. However, notwithstanding the
fulfilment of such procedural criteria, the Court has in the past taken the
position that, while it is in principle under a duty to give an answer to a
request, it need not give the opinion requested. In other words, the Court
will answer the real question as it sees it, even though it is bound by the
requestFN4. Accordingly, the Court has stated that, in answering a question,
it must have full liberty to consider all the relevant data and
circumstances available to enable it to form an opinion on the question
submitted to it for an advisory opinion.
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FN4
Interpretation of the Greco-Turkish Agreement of I December 1926 (Final
Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16;
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 65, and ibid.. Second
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 221.
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23. As pointed out above, in this instant matter not only is the question
posed by ECOSOC not identical with that which had been proposed to it by the
Secretary-General of the United Nations for submission to the Court, and
which had constituted the difference between the Secretary-General and
Malaysia and was also the question which the majority of the States that
participated in the proceedings had addressed, but there is in fact no
dispute between Malaysia and the United Nations whether [p 120] the
Convention applies to the Special Rapporteur as such, which as we have seen
is not the real question.
24. Accordingly, either the dispute should have been properly presented to
the Court or the Court's judicial character should have been observed. While
it is for ECOSOC to formulate the question to be submitted to the Court for
an advisory opinion, the Court is, however, not obliged to answer such a
question, if it would have a negative implication for its judicial character
and function. The Court is enjoined by its Statute to observe the
principles of judicial integrity, even in exercising its advisory
jurisdiction, and not to lose sight of its judicial character. Its role as a
judicial organ would come under a cloud, not to say be impaired, where a
question submitted to it was formulated in such a way as to appear
tendentious or ambiguous or have as its underlying purpose to support or
promote a particular point of view, or merely to obtain a judicial
affirmation of that viewpoint. If a question submitted to the Court were to
appear to suffer from any of these defects, I consider it the Court's duty
and an exercise of the judicial function as well as in the interest of
justice that it should decline to answer the question as submitted and not
give a judgment which cannot be obtained by the proper procedure. In other
words, where it would appear that the object of a request to the Court is
simply to obtain a formal endorsement of the requesting party's position,
the Court, as a judicial body, should decline to answer the question. The
Court cannot dissociate itself from the effect to which its decision is
going to be put. This is all the more so in the instant case, whose specific
facts and circumstances are so very different from the Mazilu case, where
the Court had held that
"Section 22 of the General 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."FN5 (Emphasis added.)
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FN5
Applicability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations, Advisory Opinion, l.C.J. Reports
1989, pp. 195-196.
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25. It is also worth recalling that, under Section 30 of the Convention, the
advisory opinion given in this case is to be regarded as decisive and
binding and would have effect for the State concerned. Indeed, in paragraph
39 of the Advisory Opinion the Court stated that the request of the Council
does not only pertain to the threshold question but also to the consequences
of the answer thereto. In my view, for a judicial determination of the
consequences to be reached, the Court would have to enter [p 121] into the
merits of the dispute, as the question whether words spoken were done in
performance of a mission is one of mixed law and fact. The Court, in
determining whether words spoken by the Special Rapporteur were spoken in
the performance of his mission and whether he is therefore entitled to
immunity, must do so in the light of all the circumstances of the case.
26. The question whether, in this case, the Convention is applicable to Mr.
Cumaraswamy and the obligations of Malaysia thereunder is not an abstract
one. Nor did the question require clarification as in the Peace Treaties
case. Viewed from this perspective, the Convention would be applicable to
Mr. Cumaraswamy as Special Rapporteur of the Human Rights Commission and
therefore an expert under the Convention, if the words spoken were done in
the performance of his mandate. Malaysia, as a party to the Convention,
would be under obligation to afford Mr. Cumaraswamy such immunities. The
request asked to take into account the circumstances set out in paragraphs 1
to 15 of the note by the Secretary-General. What the Court had to determine
was whether the Convention should be applicable to the Special Rapporteur
and whether he should therefore be immune from legal process of every kind,
in respect of words spoken in the performance of his mission, a matter,
which in my view, is one for assessment by the Court.
27. The Court's statement in paragraph 56 of the Advisory Opinion that it is
not called upon in the present case to pass upon, to adjudge, the aptness of
the terms used by a Special Rapporteur, or his assessment of the situation,
but that in any event, and in view of all the circumstances of this case, it
is of the opinion that the Secretary-General correctly found that Mr.
Cumaraswamy, in speaking the words quoted in the article, was acting in the
course of the performance of his mission as Special Rapporteur of the
Commission is not without import and significance in terms of this case. The
Court also found it necessary to warn that
"It need hardly be said that all agents of the United Nations, in whatever
official capacity they act, must take care not to exceed the scope of their
functions, and should so comport themselves as to avoid claims against the
United Nations".
I fully concur with these statements of the Court.
28. I have voted against operative paragraph 2, as I consider it is not the
proper response to the question posed to the Court. I also voted against
that paragraph because Malaysia's obligation under the Convention is one of
result and not one of method of implementation of the obligation. In this
regard the Court stated in paragraph 60 of the Advisory Opinion that the
Secretary-General has the authority to request (emphasis added) the
Government of a member State to bring his finding to the knowledge of the
local courts if acts of an agent have given rise to court proceedings. In my
view, whereas the Secretary-General is authorized to [p 122] make such
request, how a party implements its obligations under the Convention is a
matter for that State. The Court was not asked to pass on the means or
methods of implementation. Once the Court has responded that the Convention
is applicable to the matter, Malaysia would assume its obligations,
including making Mr. Cumaraswamy financially harmless for any taxed costs
imposed upon him. To have included this as an operative paragraph was
unnecessary. Nor does the Convention stipulate any particular method of
implementation, or for that matter a uniform method of implementation.
Therefore, to hold a State in breach of its obligation for not adopting a
particular method or means of implementing or achieving the object appears
to find no justification on the face of the Convention.
29. Finally, I share the Court's position as reflected in its jurisprudence
that its response to a request for an advisory opinion should be seen as
participation in the work of the Organization with a view to the achievement
of its aims and objectives, and that only compelling reasons should restrain
the Court from answering a request. I, however, consider it more important
that this Court, as a judicial organ, cannot and should not, even in giving
an advisory opinion, depart from the essential rules guiding its activity as
a courtFN6.
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FN6
Status of Eastern Carelia. Advisory Opinion, 1923, P.C.I.J., Series B, No.
5, p. 27.
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(Signed) Abdul G. KOROMA. |
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