NO^ c-orrigé
Uncorrected
International Court
Cour internationale
of Justice de Justice
THEHAGUE LA HAYE
Public sitting
held on ThursdayIODecember1998,at 10 am, at the PeacePalace,
PresidentSchwebelpresiding
in the caseconcerningthe DifferenceRelatingto Immunityfrom Legal Process
of a Special Rapporteurof the Commission onHuman Rights
(Requestfor Advisory Opinion)
VERBATIMRECORD
ANNEE 1998
Audience publique
tenue lejeudiO décembre1998,à 10 heures, au Palais de la Paix,
sous laprésidence dM. Schwebel,président
en l'affaireduiffënd relatià l'immunitédejuridiction d'un rapporteurspécial
de la Commissiondes droitsde l'homme
(Requêtepouravisconsultatz~
COMPTERENDUPresent: President Schwebel
Vice-President Weeramantry
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Deputy-Registrar ArnaldezPrésents: M. Schwebel,président
M. Weeramantry v,ice-président
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins,
MM. Parra-Aranguren,
Kooijmans
Rezek,juges
M. Amaldez,greffier adjoint - 4 -
The Secretary-General of the United Nations isrepresented by:
His Excellency Mr. Hans Corell, Under-Secretary-Generalfor Legal Affairs, The Legal Counsel,
Mr. Ralph Zacklin, Assistant Secretary-Generalfor Legal Affairs,
Mr. Anthony Miller, Principal Legal Officer, Office of the Legal Counsel,
Ms. Mona Khalil, Legal Officer, Office of the Legal Counsel.
The Government of Costa Rica isrepresented by:
His Excellency Mr. José deJ. Conejo, Ambassador of Costa Rica to the Netherlands,
Mrs. Gabriela Mufioz,
Mr. Charles N. Brower, White & Case LLP,
Mr. Charles H. Brower II, Croj2VisitingAssistantProfessorof Law, University of Mississippi
School of Law.
The Governmentof ltaly isrepresented by:
Mr. Umberto Leanza,Head of the Diplomatic Legal Serviceat the Ministry of Foreign Affairs,
Mr. Luigi Sico, Professor of International Lawat the University of Rome,
Mrs. Ida Caracciolo, researcherin international law atthe University of Rome.
The Governmentof Malaysia isrepresented by:
Dato'Heliliah bt Mohd Yusof, Solicitor General of Malaysia,
Sir Elihu Lauterpacht,C.B.E.,Q.C., Honorary Professor of InternationalLaw, Universityof
Cambridge, Member of theInstitut de Droit International
His Excellency Mr. A. Ganapathy, Ambassadorof Malaysia to the Netherlands, Embassy of
Malaysia,
Datuk Ahmad bin Haji Maarop, Head of the Advisory and International Law Division, Attorney
General'sChambers, Malaysia,
Mr. Daniel Bethlehem, Barrister, DeputyDirector of the Lauterpacht Research Center for
International Law and Lecturer in Law, University of Cambridge,
Mrs. Surynabt Ali, Federal Counsel, Advisory and InternationalLaw Division, Attorney
General's Chambers, Malaysia, -5 -
Le Secrétaire général des Nations Unie esst représenpar :
S. Exc. M. Hans Corell, Secrétairegénéraa ldjoint aux affairesjuridiques, conseillerjuridique de
l'organisation des Nations Unies,
M. Ralph Zacklin, Sous-Secrétairegénéral aux affairesjuridiques,
M. Anthony Miller, administrateurgénéraa lu bureau du conseillerjuridique,
Mme Mona Khalil,juriste au bureau du conseillerjuridique.
Le Gouvernementdu CostaRica est représenté par :
S. Exc. M. Joséde J. Conejo, ambassadeurdu Costa Rica aux Pays-Bas,
Mme Gabriela Mufioz,
M. Charles N. Brower, membre du cabinet White & Case LLP,
M. Charles H. Brower II, Croft VisitingAssistant Professorof Law à la faculté de droit de
l'universitédu Mississipi.
Le Gouvernementde l'Italieest représenté par :
M. Umberto Leanza, chef du service du contentieux diplomatiquedu ministèredes affaires
étrangères,
M. Luigi Sico,professeur ordinaire de droit international auprèsde l'Université de Naples,
Mme Ida Caracciolo, chercheurde droit international auprès del'universitéde Naples.
Le Gouvernementde la Malaisie est représentépar :
Dato'Heliliah bt Mohd Yusof, Solicitor Generalde Malaisie,
Sir Elihu Lauterpacht,C.B.E., Q.C., professeur honorairede droit international à l'université de
Cambridge, membre de l'Institutde droit international,
S. Exc. M. A. Ganapathy, ambassadeur de Malaisie aux Pays-Bas,
Datuk Ahmad bin Haji Maarop,jurisconsulte et directeur de la division du droit international du
ministèrede lajustice, membre du cabinetdu ministre de lajustice, Malaisie,
M. Daniel Bethlehem, avocat, directeur adjoint du centre de recherche Lauterpachten droit
international de l'université deCambridge,
Mme Surynabt Ali, conseil fédéral, division des affairesjuridiques et du droit international du
ministèrede lajustice, cabinetdu ministre de la justice, Malaisie,Miss Farahana bt Rabidin, Federal Counsel, Advisory and International LawDivision, Attorney
General's Chambers,Malaysia,
*
Mr. Abdul Rahman bin MohdRedza, Federal Counsel, Drafting Division,Attorney General's
Chambers, Malaysia.Mme Farahana bt Rabidin, conseil fédéral, division des affairesjuridiques etdu droit
international du ministèrede lajustice, cabinet du ministre de la justice, Malaisie,
M. Abdul Rahman bin Mohd Redza, conseil fédéral,division de la rédaction du ministère dela
justice, cabinet du ministre de la justice, Malaisie. -8-
The PRESIDENT: Please be seated. Judge Herczegh is absent today for urgent persona1
reasons and the Registrar is on duty in New York;the Deputy-Registraris acting in his place.
We have convened for the second round of the current hearingson the request for an advisory
opinion and 1cal1first on the Under-Secretary-Generaland Legal Counsel,Mr. Corell.
Mr. CORELL:
1. INTRODUCTION
1. Thank you, Mr. President, for allowing me to addressthe Court again in this important
matter. My statement today will be focused exclusively on the questions put by
Judges Vereshchetin and Higgins, and thesalient features of the oral statement by the
Govemment of Malaysia two days ago. 1also have a few very brief final remarks.
II. QUESTIONSBY THE JUDGES
2. With your permission, Mr. President, 1now intendto respond to the questions by
Judges Vereshchetin and Higgins.
A. Question by Judge Vereshchetin
3. Judge Vereshchetin'squestion is:
"Under Section 23 of the 1946Convention,the immunity of any expert must
be waived if in the opinion of the Secretary-General'theimmunitywouldimpede
the courseofjustice (emphasis added) and it can be waived without prejudiceto the
interests of the United Nations'. Inthe light of this provision of the Convention, if
the position of the Secretary-Generalwere sustained by the Court, what wouldy
in the view of the Secretary-General,the legal remediesavailable to the Malaysian
private plaintiffs?"
Answer
4.Mr. President, in order to answer this question 1will describe the remedy régime
envisaged by the Convention, and implementedby the UnitedNations, and then indicate what
remedies are, therefore, available to the plaintiffs. -9-
The remedy régime envisagedby the Convention and implemented by the United Nations
5. Unlike the immunity available to States and their agents under the Vienna Convention
on Diplomatic Relations and the Vienna Convention on Consular Relations, the immunity
accorded to the United Nations by Article II of the Convention on the Privileges and Immunities
of the United Nations, and the immunity accorded to agents of the United Nations by Articles V
and VI, is offset by an obligation in Article VI11to make remedies available to private parties
who might otherwise be harmed by the immunity of the Organization and its agents. This
régime is what C. Wilfred Jenks described as "Immunitieswithin the Law" (International
Immunities, 1961) hat is to Saythe provision "for legal process in detennining any differences
of opinion on the subject between States and international organizations"(at p. 21). As Jenks,
so pertinently and succinctly stated
"The essence of the matter is that the rule of law is placed in an international
setting in which the equilibrium of al1the factors in play can be reached rather than
in a purely national setting in which purely local influences may determine and
distort the outcome." (Ibid., p. 28.)
6. Section 29 of the Convention requires the United Nations to make provision for
appropriate modes of settlement of private law disputes in two situationswhich are intended to
provide a complete remedy system to private parties who allege to have been hanned by actions
of the United Nations or by its agents acting within the scope of their mandate.
7. Section 29 (a) requires the United Nations to make provision for appropriate settlement
of disputes arising out of contracts or other disputes of a private law character to which the
United Nations is a Party.
8. The United Nations has implemented Section 29 (a) by inserting into al1commercial
agreements into which it enters an arbitration clause pursuant to the UNCITRAL Arbitration
Rules. These Rules, Mr. President, universally recognized to be fair and impartial, provide a
complete framework for the settlementof commercial disputes. - 10 -
9. If the United Nations has a private law dispute arising out of a non-contractual situation
and such dispute has not been settled by negotiation, itdoes make provision for suitable means
to settle the dispute, usually by arbitration in accordance withthe UNCITRAL ArbitrationRules.
The United Nations has also agreed to forma1conciliationthrough the UNCITRAL Conciliation
Rules. 1should emphasize, however,that the overwhelmingmajority of claims are settled
through negotiation.
10. Section 29 (b) of the Convention requiresthe United Nations to make provisionfor
appropriate settlement of disputes involving an official of the United Nations who, by reason of
his official position enjoys immunity, if that immunity is not waived by the Secretary-General.
11.Paragraph 15of Ourwritten commentsnotes that it is the evident intent of Section29
to provide remedies to private parties who allege that they are harrned by acts of an agent of the
United Nations not just a United Nations official. The UnitedNations considers that this
provision applies mutatismutandisto acts of experts since both officiais and experts are agents
of the Organization.
12.In motor vehicle cases the United Nations has a worldwide insurance policyand the
claims are handled by the Organization'sinsurancecarrier. We have already notedthat
commercialagreements contain provisions for appropriatemeans for the settlement of disputes.
However, as other claims of a private law nature could arisein any of the 185 member States,
and could arise out of innumerablefactual situations, it is neither feasible, practical or
economicalto establish standing claims bodies to deal with these questions. The United Nations
settles most claims through negotiation, referringthose claims that cannot be settled to
arbitration under the UNCITRAL ArbitrationRules or, sometimes, through conciliation under
the UNCITRAL ConciliationRules.
13.Finally, Mr. President, we again emphasize that in the event that immunity is asserted,
a claimant seeking a redress againstthe Organization shallbe afforded an appropriate means of
settlement. The immunity of the United Nations, or its agents, does not leave a plaintiff without - 11 -
remedy as would a successful assertionof sovereign immunityby a State. What an assertion of
the United Nations immunitydoes is to ensure that the claim will not be adjudicated by national
courts but by independentarbitrators pursuant to rules collectively agreed upon by the
international community,that is the UNCITRAL Rules. These rules are not the creature of one
nationaljurisdiction.
Remedies available to plaintiffs in this case
14. By determiningthat the words spoken by Mr. Cumaraswamy were performed during
the performance of the mission for the United Nations,the words complained of are now the
responsibility of the United Nations. It follows that anyrivate plaintiff who considers himself
harmed by the publication of those words may submit a claim to the United Nations which, if
the suits in national courts are withdrawn, will attempt to negotiate a settlement with the
plaintiffs; if this is not possible, the United Nations wille provision for an appropriate
means of settlement, for exarnple,by submissionof the dispute to arbitration in accordancewith
the UNCITRAL Arbitration Rules. 1hope Judge Vereshchetin, that that answer satisfies your
question.
B. Questions by Judge Higgins
First question
15.Mr. President, 1now come to Judge Higgins'questions. The first question is:
"Are there exarnpleswhere the Commissionof Human Rights has declined to
ratify acts of a Special Rapporteur as being appropriate to his mission?"
Answer
16.In respondingto this question. 1should first point out that while the Commissionon
Human Rights is the intergovemmentalbody that appoints the Special Rapporteurs and
establishestheir mandates, mandates which are often delicate and always sensitive, Special
Rapporteurs are experts who function independentlyof the Commission. Nevertheless, the - 12-
Commissiondoes maintain a broad oversightfünction of both the mandate andthe methods of
work of the Special Rapporteurs, as well as the content and conclusions oftheir reports, and
occasionallysuggests modifications.
17. While the Commission has only infrequently intewened - out of respect for the
integrity and independenceof the Special Rapporteurs - it has, as we have noted, occasionally
declinedto ratiQ the words or acts of a Special Rapporteur as being appropriateto the mandate
or mission. One recent example which illustrates the role of the Commission arosein 1997.
The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobiaand
related intolerance reproduceda text to which several delegationsof member States ofthe
1
Organizationof the Islarnic Conference reacted strongly (E/CN.4/1997/71). The Commission
decided, withouta vote, to express its indignation and protest at the content ofsuch a
blasphemousreference to Islam and the Holy Koran and affirmed that the offensive reference
shall be excluded from the report. The Chairman was requested to ask the Special Rapporteur
to take corrective action. After various consultations,a corrigendum was published deletingthe
sentence in question.
Secondquestion
18.Mr. President, Judge Higgins' second questionis:
"1sit the position of the United Nations that an expert, if he is answering
questions put to him as Special Rapporteur, relatedto the topic of his mission, is
acting 'inthe course of performance of his mission' regardlessof the content of his
remarks? Put differently, does the content of an expert's remarkshave any role to
play in determiningwhether he has immunityunder Article VI, Section 22, of the
Convention?"
Answer
19. In order for the Secretary-Generalto determine whetherwords spoken or written, or
acts performed, were in the course of an expert's missionhe must assess, as a question of fact,
whether in his opinion the words spoken or acts perfonned were done during the course of the - 13 -
mission and secondly whether, in his opinion, those remarks related to the mission (see written
statement, para.51 and written comments, paras. 6 and 7). With due regard to the independence
of the Special Rapporteurs it is submitted that, when determining questions of immunity the
content of the remarksdoes have a bearing on the Secretary-General'sdetermination. That the
Special Rapporteur indicated, either explicitly or implicitly, that the remarks were made in his
capacity as Special Rapporteur is not determinative. The determination whether the conduct is
within the performance of a mission and therefore is immune is exclusively for the
Secretary-General tomake, subject to his right and duty to waive immunity in accordance with
the Convention and to thejurisdiction of this Court. This is socause, just as the content has
to be looked at to determine whether the words relate to the mandate, the content ofse
remarks may be so egregious as to lead to the conclusion that they cannot be characterized as
mandate related despite the views of the expert that he was acting in the discharge of his
mandate.
Mr. President, those were the answers to the questions put by Judge Higgins.
III.COMMENTSON THE ORAL STATEMENTBY THE
GOVERNMENTOF MALAYSIA
A. General Comments
20. 1 now come to the oral statement by the representativesof Malaysia. 1will comment
on this statement in three parts:A) general comments, (B) the scope of the question before the
Court, and (C) some specific comments.
21. Withrespect tothe general comments,1should,first, liketo refer tothe observationmade
by the counsel for Malaysia that the Secretary-General, Costa Rica and Italy has not added
significantly to their written statements. This may be so. The Secretary-General saw his role at
this stage to set out the framework of the case, as he perceives it, to highlight certain aspects in
order to assist the Court in order to arrive at its opinion and to respond to any questions that the
judges might have. Now is not the moment when "significantadditions" should be made. - 14 -
22. Be that as it may, the Secretary-Generalcan certainly notmakethe samecomplaintwith
respectto the submissionof the Govemmentof Malaysia. What weexperienced last Tuesday was,
in fact, a completely revised presentation of Malaysia's position. The oral statementbears little
resemblanceto what was said in the written statements. 1am not particularlyconcemed withthe
argumentsthat have been brought forward; these will be addressedin the course of mystatement,
even if 1am afraid, Mr. President, that it will take some time. It would have assistedal1involved
in these proceedings if Malaysia'sobservations had been made earlier in the proceedings.
23. 1am,however,concemed overanotherelementthat has creptinto Malaysia's arguments.
It is argued that the Secretary-General has lacked in diplomatic courtesy, that he has made
exaggerationsand generalizationsthat "stand as an implied slur upon al1the national systems of
adjudication that the Special Rapporteur was considering", and that the Secretary-General has
advancedthe position in an "obscure and shrouded manner".
24. Mr. President, with respect to diplomatic courtesy,the Secretary-Generalof the United
Nations is certainly not lacking in his respect to member States, nor would he condone such
behaviouron the part of his staff. Also, we who work for the Organizationtake pride in this and
endeavour to discharge Our duties in a professional and courteous manner. 1, therefore, feel
compelled to refute the allegations made by the Solicitor-General of Malaysiathat the Notes
Verbales he issued in connection with the legal proceedingsin the Malaysian civil courts were
peremptory in nature and did not contain the usual courtesies.
25. TheNotes Verbales "ToWhomItMay Concern"wereformulatedin sucha mannersince
it was impossible for the Secretary-General to know how this paper would be used by the
Govemmentof Malaysia and to which authoritiesandjudicial institutions it mightbe sent. What
the Solicitor-Generalfailed to recognize is that these Notes Verbaleswere sent under the cover of
otherNotes Verbales containingthe customarycourtesies. Furthermore,the contactsbetweenthe
Secretariatandthe PermanentMissionofMalaysiato theUnitedNationswere always professional,
courteous, and indeed amicable. - 15-
26. As to the peremptoryformatof the Notes Verbales issuedby the Secretary-General,the
UnitedNations referstotheDossier. TheNoteVerbaleof 7 November 1998wasprecededbythree
Notes Verbales from the Legal Counsel to the Permanent Mission of Malaysia to the United
Nations: that is of 28 December 1995(DossierNo. 12),of 29 March 1996(DossierNo. 19)and
of 15January 1997 (Dossier No. 27). The Note Verbale of 11July 1997was transmitted to the
Permanent Missionof Malaysia by a cover letterof the samedate signedby the Secretary-General
himself (Dossier No. 44). The Note Verbale of 25 November 1997 was transmitted by a Note
Verbale ofthe same date fiom the Legal Counsel to the Permanent Mission (Dossier No. 52).
27. In addition, Mr. President, the Secretary-General took the unprecedented step of
appointing a Special Envoy to assist him in his contacts with the Government of Malaysia to
ascertain ifan amicable settlementto the differences arising between the United Nations and the
Governmentof Malaysia could be reached. He also discussedthe matter atthe highest levels with
the authorities of Malaysia on several occasions, includingduring a visit to Kuala Lumpur.
28. The United Nations finds it somewhatironic that it is the Govemment of Malaysia that
complainsof a breach ofcourtesy when it has failedto respond,or even acknowledgedreceipt of,
at least 20official communications fi-omthe United Nations.
29. With respect to the "slur", the Secretary-Generalhas merely statedthat this case has far
reachingconsequencesforthe Organizationasawhole. TheHighCommissionerof HumanRights,
who is best placed to assess the matter, has expressed great concern, and so have the States
participatinginthese proceedings, exceptMalaysia.The Secretary-Generalfailsto seethat this can
be interpreted in such pejorative terms as advanced by the Government of Malaysia. 1 intend to
revert to this matter in a few moments.
30. With respect to the way inwhichthe Secretary-Generalhad advancedhis position, 1will
deal with that in the course of my statement. Let me Sayat thisjuncture that the Govemment of
Malaysia can at no time have been unaware of theSecretary-General'sposition in this matter; he
has been very clear indeed. The fact that some of the legal opinions referred to have been - 16-
"depersonalized", if 1may Say so, simply is due to the practice of the Secretariat in publishing
opinions of this kind; the Secretariates not wish to embarrass the member State thatwas the
recipient of the opinionin question. This is common practicein similar situationsin many States.
31. Mr. President,1realize thatthese commentsthat 1havejust made maynot be of much
assistance to the Court in formulating its opinion, but what was said could simply not remain
uncontested.
B. The scope of the question before the Court
32. Mr. President, 1now cometo the scope of the question beforethe Court. As 1 said a
few moments ago, Malaysia'soral statement,containingits updated position,appearsto bear little w
relationshipto the submissionsand argumentspreviously submittedin writing. WhileMalaysia is
of the viewthat herpositionis sharedbythe other Statespartiesto the Convention,nouch support
is evident in the written statements, written comments and oral statements which have been
presented to the Court by the other States participatinginese advisory proceedings.
33. So as not to impede the Court's abilityto provide the advisory opinion requestedon a
priority basisby the Economicand SocialCouncil in its decision 19981297of 5 August 1998,the
UnitedNations therefore hasno intentionof respondingto al1thepoints introducedforthefirst time
on Tuesday. Wewill, however, brieflyaddress the salient features of the position put forth by
w
Malaysia in these oral proceedings. If the Members of the Court, Mr. President, find that any
points not addressedhere today merit its further considerationand require further informationon
these points or any other matters, on behalf of the Secretary-General,1would of course weicome
the opportunityto assist the Court.
34. In the light of Malaysia's effortsto narrowthe scopeof the legalquestion on which the
Council requested an advisory opinion, 1think it is necessaryto quote the explicit words of the
Council in operative paragraph 1of its decision.The Council requestedan advisory opinion
"onthe legalquestionof the applicabilityof ArticleVI, Section22,of the Convention
on the Privileges and immunities of the United Nations in the case of Dato'Pararn
Cumaraswamy as Special Rapporteurof the Commission on Human Rights on the independence ofjudges and lawyers, taking into account the circumstancesset out in
paragraphs 1to 15of the Note by the Secretq-General, and on the legal obligations
of Malaysia in this case",
1repeat, and on the legal obligationsof Malaysia in this case.
3 5. It is notforthe UnitedNations nor for any of the States participating in these proceedings
to redefine or narrow the scope of that legal question. It is for the Court to determine how it
understands the question submitted to it by the Economic and Social Council. We must also not
forget that, in accordance with Section 30 of the Convention and operative paragraph 2 of the
Council's decision, the advisory opinion shall be accepted as decisive by the parties. As the
United Nations must continue to function in the territories of each of its member States, the
Secretary-General would appreciate the Court's guidance on the issues presented in the written
statement and oral submissions presented on his behalf.
36. Mr. President, based on the undisputed facts set out in paragraphs 1to 15of the Note of
the Secretary-General,the UnitedNations has maintained and continuesto maintain that Article VI
is applicable to Dato'PararC numaraswarnyas a SpecialRapporteur of the Commission on Human
Rights; that pursuant to Section 22 (3) of Article VI, he is therefore immune from legal process
of every kind in respect of words spokenor written inthe courseof the performance of his mission;
that, to the extent that the Secretary-General has determined that the words giving rise to these
complaints in the Malaysian civil courts were spoken by him in the course of the performance of
his mission and that he is therefore immune from legal process of every kind with respect thereto,
the Govemment of Malaysia has a legal obligation, under Section 32 of the Convention, to give
effect to that immunity; and that to the extent that it neither gave effect to the immunity nor
invoked the settlement of dispute provisions of Article VI11of the Convention, it breached its
obligations under the Convention and is consequentiallyresponsible for any actual costs, expenses
or damages which reasonably or proximately resulted from such breach such as the costs and
expenses incurred in the proceedings and the costs which have already been taxed to the
Special Rapporteur by the Malaysian courts. - 18-
37. In this context,1mustconfessthat we were very surprised tohear the Solicitor-General
of Malaysiamaintain in her oral statement (para. 12)that the question of the Secretary-General's
authorityto determinewhetherthewordsof Dato' Param Cumaraswamywere spokeninthe course
of the performance of his missionwas the only issue that had been previously discussedbetween
the United Nations and Malaysia. As a matter of fact, al1the issues that the United Nations has
referred to in its written and oral presentationsto the Court have been extensivelydiscussed with
the competent Malaysian authoritiesover the last two years.
C. Specificcomments
38. 1will now briefly address four salient features of the oral statement delivered by the
Government of Malaysia; these are (1) the concept of functional immunity; (2) the
Secretary-General'sauthority; (3) the obligations of the Government of Malaysia; and, finally
(4) the hm to the interests of the United Nations.
1. The functionalimmunityof United Nations officials and experts on missions
39. Mr. President, the first aspect is the functional immunityof the officials and expertson
missions ofthe t.'nitedNations. Malaysia has submittedthatthe SpecialRapporteurdoesnot enjoy
absolute immunity and that it is for the Malaysian courts, not the Secretary-General,to decide
whether the words complained of are protected by his limited functional immunity.
40. The United Nations has stipulated that the privileges and immunities to which the
Special Rapporteur is entitled as an expert on mission within the meaning of Article VI of the
Convention are strictly functional. It has explicitly referred to this fact in paragraph 25 of its
written statement, paragraph 6 of its written comments and paragraph 11 of its oral statement.
41.The UnitedNations hasmaintainedandcontinuesto maintain, however,that subjectonly
to Article VI11of the Convention,it is the Secretary-Generalwho decideswhether words or acts
are spoken,written or done in the course of the performanceof a mission for the United Nations. 42. In so doing, the United Nations agrees that there is no absolute immunity accorded to
officiais and experts on mission but rather that any determination as to the official or unofficial
nature of a word or act and that any assertion of immunity or refusal to waive immunity is subject
to review by this Court, unless in any case it is agreed by the parties to have recourse to another
mode of settlement.
43. This matter before the Court concerns the functional immunities of international
organizations and their agents. It is not about sovereign immunity, diplomatic immunity, consular
immunity or the immunity of foreign armed forces. The Organization's right to determine and
protect the functional immunities of its agents is essential to the preservation of its international
character and independent functioning under the Charter. Bilateral conceptsof reciprocity cannot .
be made applicable to the Convention and therefore cannot define relations between the United
Nations and its 185member States. Suffice it to Saythat the United Nations is neither a sending
State nor even a State for that matter. Another obvious distinction is that Article VI11of the
Convention vests the right to resolvedifferences betweenthe UnitedNations and its member States
in the advisoryjurisdiction of this Court, not in the national courts of the member State concerned.
1can also refer to my reply to Judge Vereshchetin's question in this context.
44. Mr. President, writing in 1961, C. W. Jenks elaborated this view as follows:
"Statesenjoyasubstantial measure of protection againstpartial treatrnent, denial
of justice or unreasonable interference by each other or by each other's courts by
reason of the reciprocal nature of their relations. International organizationsare not
in a comparable position. In the absence of jurisdictional immunities they are
completely at the mercy of their member States, both collectively and individually.
The law defining their status and responsibilities is too little developed, both
internationally and in an even more marked degree municipally, to be safely left to
municipal interpretation; the dangerthat it may beconsistently interpreted ina manner
restrictive ofthe futuredevelopmentofinternationalorganizationisstilltoo widespread
and acute. Alexander Hamilton argued that 'thirteen independent courts of final
jurisdiction overthe samecauses,arising uponthe same laws, isa hydra in government
from which nothing but contradictionand confusion can proceed'; the same reasoning
applies with equal force to the exercise of national jurisdiction over international
organizations. In many cases, moreover, the independence of municipal courts fiom
political influence is not sufficiently secure to afford adequate guarantees of
impartiality and protection to international organizations in time of strain."
(International Immunities, pp. 40-41). - 20 -
2. The exclusive authoriîy of the Secretary-General
45. The Government of Malaysia contends that the Secretary-General has purported to
exercise a power which he has not been accorded. TheUnited Nations respectfully submitsthat
the position it hasconsistentlymaintainedis consistentwith the Charter ofthe United Nations,the
Convention onthe Privileges and Immunitiesand the findingsof this Court in the MaziluOpinion
and in the Reparations case.
46. The United Nations has consistently maintained that the Secretary-General has the
exclusive authority to determine whether words are spoken or written in the course of the
performance of a mission for the United Nations. His authorityin this regard is coupledwith his
exclusive right and duîyto waive immuniiywhere, in his opinion, it would impedethe course of
justice and it could be waived without prejudice tothe interests ofthe United Nations.
47. The UnitedNations also maintainsthat, unlessthe Government ofMalaysiarequeststhe
waiver of immunity or invokes Article VI11of the Convention, it has a legal obligationto give
effect to that immunity in accordancewith Article 34 of the Convention.
(a) The Secretary-Generalhas publiclyconfirmed his position
48. Contraryto Malaysia's contentionthat the Secretary-Generalhas advanced his position
in an "obscure and shrouded manner",the United Nations positionthat the Secretary-General has
the exclusive authority to determine whetheracts are oficial or in the course of the performance
of a mission has been publicly and consistently maintained. It is explicitly stated in Staff
Regulation 1.8whichwas adoptedbythe General Assemblyin accordancewith Article 101of the
Charter (Dossier No. 105). It has been publicly stated in the Fifth Committee of the General
Assembly on at least two occasions. All member States are representedon the main committees
of the General Assembly. The Fifth Committee in particular adopts its decisions and resolutions
by consensus and is the subsidiaryorgan to which the Assembly has allocatedthe agenda itemon
the privilegesandimmunitiesof officiaisoftheUnited Nations. In recognitionofthe legalaspects
of this item, the majority ofmember Statesarenormally representedby their legal advisersduring - 21 -
the consideration of this most important item in the Fifth Committee. The United Nations position
has been unequivocally stated in the off~cial reports of the Secretary-General to the General
Assembly and noted without objection thereby (Dossier No. 106). It has been further confirmed
bythe General Assembly resolutions callingfor the respect of the Secretary-General's assertions of
functional immunity (Dossier Nos. 107 to 115). Disclosure to the 185 member States of the
General Assembly in its official documents cannot be "obscure" or "shrouded".
(b) The Secretary-General hasfailedto distinguish between civiland criminal suits
49. The Govemment of Malaysia seems to attach greater significance to whether the
subject-matter is criminal or civil litigation. The Secretary-General respectfully submits that this
distinction is irrelevant. The provision of the Convention clearly Statesthat the expert on mission
is exempt from "legal process of every kind". It is also not correct to belittle the effects of civil
litigation. A civil litigation involvingaaim for millions of dollars can have disastrous effects for
the persons concemedthat could well be comparableto the effectsof ajudgment in a criminal case.
On the other hand, a modest fine in a criminal case might be of less significance. The attempts to
make a distinction here is contrary to the object and purpose of the Convention. The
Secretary-General does not distinguish between civil and criminal suits because Article VI and
Section 22 (b) of Article VI, do not distinguish between civil and criminal suits.
(c) Secretary-General'sobligationunder Section29 of the Convention
50. Mr. President, ithas beencontended,the Secretq-General hasnotfulfilledhis obligation
to make provision for appropriatemodes of settlement as required by Section 29ofthe Convention.
As the United Nations has elaborated,the remedies available under Section 29 of the Convention
inresponseto Judge Vereshchetin's question,1do notbelieve it isnecessary to elaborateany further
on this question.
51.1would like to briefly reiterate that Article VI11of the Convention does not require the
establishmentof a permanent or standing dispute resolution mechanism. Moreover, it would be - 22 -
impractical andfinancially burdensomefor the UnitedNations to establish andsustainpermanent
or standingsettlementmechanismsgiventhe many countriesin which itoperates; the innumerable
kinds of possible private lawsuitsthat may arise, andthe demonstratedcommitmentof the United
Nations to settle its disputes by negotiation. The rare instances where itcannot settle its disputes
do not justiG the financial and human resources required to maintain permanent or standing
settlement mechanisms.
(d) Pacta Sunt Servanda
52. MT.President, with al1due respect to the sovereignty of States, the Secretary-General
submits that the fulfilment of legal obligations freely undertaken by sovereign Statesdoes not
"subtract from that State sovereignty". Such fulfilment is owed to the Organizationpursuant to
Article 105of the Charter,Article 34 ofthe Convention,and customaryprinciplesof international
law. Pacta sunt sewanda.
(e)Right and dutyto waive immunity
53. Mr. President, we are grateful that the Government of Malaysiaagrees that Section23
authorizesthe Secretary-Generalto waive immunity. It indicatesthatthe Secretary-General's right
to waive, however, is only operative if there is an immunityto be waived. The United Nations
respectfully agrees on theclear understandingthat sincethe Conventionvests the right to waive
immunity exclusively in the Secretary-General, it must also therefore intend to vest the
Secretary-Generalwith the exclusiverightto determine,in the first instance, whetherthere is any
immuniîyto be waived.
fl The Secretariatstudy on privilegesand immunities
54. The counsel for Malaysia seemsto suggestthatthe Secretariat'sstudy on the practiceof
the United Nations, the Specialized Agencies and the International Atomic Energy Agency
concerningtheir status, privileges and immunitiesis silent on the issue of the Secretary-General's
authority. - 23 -
55. The Secretariatstudyreferredtowaspreparedtoassistthe InternationalLawCommission
in fulfilling the request made by the General Assembly in its resolution 1289(XIII) of
5 December 1958 and was subsequently revised and updated at the explicit request of the
InternationalLaw Commissionat itsfie-third sessionin 1983. The introductiontothesupplement
revisingand updatingthe originalstudyexplicitlystatesthat it "isintendedto be readtogether"with
the original 1967 study. Much has been made of the fact that the study does not refer to the
position defined by the United Nations as its establishedpractice. Indeed, the original studydoes
refertothe Organization'srightto exercisefunctionalprotectioninaccordancewiththeReparations
case (para. 251). Moreover,the supplementwhich1have indicatedis an integralpart ofthe study,
makesamplereferencetotheUnitedNationsposition onthe Secretary-General'sexclusiveauthority.
We refer in generalto Sections 23 and31of the supplementand in particularto paragraphs 54,55,
56 and 57 thereof. Thus,the study does indeed confirmthe practice and positionwhichhas been
consistently maintainedby the United Nations both in and outside, and before and during, these
advisory proceedings.
3. The obligations of the Governmentof Malaysia
56. Mr. President, 1 now come to the third point: the obligations of the Government of
Malaysia. In support of its arguments, theGovernmentof Malaysia has made referenceto highly
selective passages attributedto various writers, has resurrected a curiousarray of domesticcases,
and has invoked the exhaustion of local remedies rule.
(a) References to C.W. Jenks and Hans Kelsen
57. With respectto Jenks,the referenceto his book is interesting,andthe Secretary-General
has no major problem withJenks' three solutions,or a combinationof the three. Pleasenote also
that theauthor talks about suspensionof national proceedings pendingthe outcomeof arbitration.
Thus,Jenks does not suggestthat the solutionshould bethat the issue shouldbe adjudicatedby the
national courts of a member State. The Organization, therefore,has no difficulty with a member
Statefulfilling its Article 34 obligationto give effectto the privilegesand immunitiesprovidedforunderthe Convention if its courts were to either (1) accept as conclusivea statementof immunity
by the Secretary-General,or (2) acceptas conclusivea statementof immunityby the executiveof
themember State concerned,or (3) staythe proceedingswhilstthe matterwentto arbitration. This
is consistentwith the UnitedNations positionwithrespect tothe Secretary-General'sNoteVerbale
of 7 March 1997,with respect to the inconclusive nature of the certificate by the Minister for
ForeignAffairsof Malaysia; and with respect totheremediesprovided forunder Section29 of the
Convention.
58. Also,1think it is importantto notethat Kelsenalsocommentedonthe 1946Convention,
since the learned counsel fiom Malaysia referredto Kelsen. The following quote may serve to
w
illustrate his thinking with respect to the matter which is at issue here:
"Anotherquestionis whetherthe provision of Section 29,clause (a), intendsto
substitute for the jurisdiction of the territorially competent national Courts the
jurisdiction of agencies established by the United Nations for the settlement of the
disputes referred to in Section 29; that is to Say, whether Section29, clause (a),
imposesuponthe contractingStatesthe obligationto recognizethe exemptionof these
disputes from theirjurisdiction? If the provision of Section29, clause (a), shall not
havethis effect, whyshouldit be insertedintoa treatybetweenthe UnitedNationsand
the MemberStates? As to the disputesreferredto in Section 29, clause (b),the same
question arises. If immunity of the official involved in the dispute is not waived,the
jurisdiction of the Member Stateconcernedisexcluded. Whyinsertthis provision into
a treatywith MemberStates if bythis provisionno obligationis imposedand noright
is conferredupon the Member State? Besides, it shouldbe noted that immunityof an
officia1for acts that heperformsin his officia1position is immunityfor acts imputable
to the Organization, and hence not a privilege of the official but a privilege of the
United Nations, establishedby Article 2, Section 2, of the Convention." (At p. 317)
(6)The United States position
59. To ascertainthe United Statespositiononthe legal questionon which the ECOSOC has
requestedan advisory opinion,one neednot go to JuridicalYearbooks,National Commentarieson
Foreign Relationsorto 35-year-olddomesticcases, some of which do not even involvefunctional
immunitiesand in some of which no immunityhas been asserted by the Secretary-General. The
United Stateshas kindly provided this Court and al1participants in these proceedings its position
on the matters before the Court. Farfiom being "virtuallyidentical"to Malaysia's positionthat a
Secretary-General's assertionof immunityis a nullity havingno legal effect,the United Statesand - 25 -
for that matter the United Kingdom have explicitly stated that unless there are compelling or
powerfùllycontrary circumstances, theSecretary-Generai'sdeterminationmust be givengreat weight
and deference. 1 refer to paragraph 6 of the United Kingdom's written statement and to
paragraphs 19to 24 of the United States' writtenstatement. Moreover, they conclude that no such
circumstances exist on the undisputed facts of this particular case. 1refer again to paragraph 6 of
theUnited Kingdom'swritten statementandto paragraph 41 ofthe United States'written statement.
(c) Exhaustionof Local Remedies
60. Finally, Malaysia has alluded to the exhaustion of local remedies. It is true that this
Court in theInterhandelcase reaffirmed the rule of customary international law that local remedies
must be exhausted before international proceedings can be instituted. It was a classic case of
diplomatic protection of alien nationals, thatsto Say,one in which "a State has adopted the cause
of its national whose rights are claimed to have been disregarded in another State in violation of
internationallaw"(1C.J:Reports 1959,p. 27). Thecharacter of a claim brought by an international
organization isdifferent. As we have already noted, in Ourprevious statements, in bringinga claim
in respect ofinjury to its agent, the Organization is actually seeking reparation for a breach of an
obligation due to itself. Whilethe exhaustion of local remedies is undoubtedly a rule of customary
international law which is applicable to cases of diplomaticprotection of aliens, it is doubtful if
such a rule could be applicable in cases involving claims for injury to the rights and interests of
international organizations. The redress of claims of injury by international organizations falls
within the competence of the executive branch of the Government in consultation with the
organization concerned.
61. Moreover, where a specific contract, agreement or convention, otherwise provides a
remedy or settlement of dispute mechanism, the express provisions of the contract, agreement or
convention must and do prevail. Article VI11of the Convention on the Privileges and Immunities
makesexplicit provisions forthe settlement of disputes. Section 30 inparticularexpressly provides
that when a differencearises between the United Nations and a Member, "a request shall be made - 26 -
for an advisory opinion . ..". While the use of the word "shall" may also be said to have a
temporal character, it undeniably has a mandatory and binding character. As such, when a
difference arising out of the interpretationor application ofthe Convention arises,as it has done
in this case, it should not be exhaustedin the localMalaysiancourts but rather shallbe the subject
of a request for an advisory opinion.
62. Mr. President, as it has been contended that it is for the Malaysian courtsto assess the
characterof the SpecialRapporteur'sconduct as"a preliminaryor threshold" question,we wish to
recallthatthe questionofthe SpecialRapporteur'simmunityfrom legalprocesshasbeenbeforethe
Malaysian courts since January 1997and has been the subject of unfavourable judgments in the
Court of Appeals and the Federal Court of Malaysia.
63. Thus, even assuming, for the sake of argument, that the mle of exhaustion of local
remediesappliesinthepresentcase,aneffectiveremedymustbeavailableasa matterof reasonable
possibility. Inthis connection,the United Nations recalls that the Secretary-General'sbest efforts
to resolvethis difference, includingappointing a SpecialEnvoywho undertook two official visits
to Kuala Lumpur proved futile. Moreover, the undisputed facts of this case, in particular the
judgments of the High Court of Kuala Lumpur(Dossier No. 35), the Court of Appeals(Dossier
No. 45),andthe FederalCourtof Malaysia(DossierNo. 55)unequivocallydemonstratethe futility
of attempting to ensure the respect for the Secretary-General'sdeterminations in the Malaysian
courts. Thejudge inthe High Court has ruledthat she hasjurisdiction to conducta fulltrial onthe
merits including the question of the Special Rapporteur's immunity. The Court of Appeals has
upheld thatjudgment concludingthat it is for the Malaysian courts to determine theapplicability
and scopeof the privileges and immunitiesasserted by, and the missions performedon behalf of,
the United Nations. And finally, the Federal Court has delivered an oral ruling that
Dato' Param Cumaraswamy is not a sovereignor a full-fledged diplomat: "He is someonecalled
a Rapporteurwho hasto act, in the presentcase,within amandate of,inlayman'sterms, an unpaid,
part-time provider of information". - 27 -
4. Harm to the interests of the United Nations
64. Mr. President, 1now come to the fourth point: the harm to the interests of the United
Nations. Malaysia has contended that the Secretary-General has made exaggerations and
generalizationsthat "stand as an implied slur uponal1the national systems of adjudication that the
Special Rapporteur was considering". In short that the harm to United Nations interests is
exaggerated.
65. Again, Mr. President, 1regret to take up any more of your time but 1have an obligation
to the Secretary-General to represent as clearlyas possible al1the United Nations intereststhat will
be affected by this advisory opinion. The United Nations statement of the harm to its interests is
supported in the written statements submitted by the Governments of Costa Rica, Sweden, the
United Kingdom of Great Britain and Northern Ireland, and the United States of America. The
Secretary-General'sconcern is also shared and confirmed by the High Commissionerfor Human
Rights in her letterto the Secretary-General of 2 October 1998(DossierNo. 54bis). She, 1am sure
you are aware, is uniquely qualified to assessthe impact of events on the human rights mechanism
of the United Nations system.
66. In his statement to this Court on Tuesday, counsel for Malaysia described the United
Nations concerns as to the precedential aspects of this case as exaggerated or an overstatement
falling short of the standards of fairness and objectivitythat normally characterizesthe work of the
Secretariat of the United Nations. We do not believe that these concernsare exaggerated. Neither
do the above-mentioned Govemments. In my closing remarks last Tuesday, 1 stated that the
question before the Court is not solely of concern to one Special Rapporteur or even to one class
of SpecialRapporteurs. It is a question which relates to the independent functioning of any agent
of the Organization whether an official or an expert on mission.
67. In so far as experts on mission are concemed,the position taken by the Government of
Malaysia, if upheld by the Court, would have the most serious implications for the functioning of
the Organization as a whole. Forjust as the fünctions of the Organization have expanded overthe - 28 -
years far beyond what could have been foreseen in 1945, so has the use of experts on missions
since 1946. The Secretary-General's writtenstatement in the Mazilu case provided a number of
illustrationsof thevariety of circumstancesinwhich expertson missionsare deployed. Todaythis
categoryof agentsis evenmoreextensive. Experts areto be found amongthe inspection personnel
of the United Nations Special Commission(UNSCOM) in Iraq, the claims commissionersof the
UnitedNations CompensationCommissionwho considerthe claimsarisingout of damagescaused
by Iraq as a result of the Gulf War, and areat number of the personnel attached to the ad hoc
Criminal Tribunals for Rwanda and theformer Yugoslavia.
68. 1givethese illustrationswhichare by no meansexhaustiveto indicatenotonlythe extent
to whichthe UnitedNationsmustrely onexpertsonmissionsbutalsothe seriousconsequencesthat
would flow from any diminution in the protection affordedto them by the Convention.
IV. Final Remarks
69. Mr. President, 1have now come to my final remarks. They are very brief.
70. You havenow before you, Membersofthe Court,a questionbythe Economicand Social
Council and a quite extensive elaboration of the subject-matter, both in written and oral
submissions. 1think that it is important nowto focus also on the more overriding aspects of the
case; it is importantnot to lose sight of theio Iegisaspect. Whywas it necessaryto adopt the
Conventiononthe Privilegesand Immunitiesof the UnitedNations andwhat is the purpose of the
immunity? The purpose must, of course beyto enable the United Nations to discharge the
responsibilitiesentrustedto itbymemberStateswith freedom, independenceandimpartiality. Each
member State can thus be sure that the organizationwill not becomean instrumentof the policy
of individual States but will represent the common interest as defined and determined by the
competent legislativeintergovernmentalorgans,that theUnited Nations shouldbe able to exercise
itsfunctions in an unimpeded manner.
71. But, Mr. President, is that possible if the very question of whetherfunctional immunity
exists is left entirely for the national courts to decide? As we have concluded, the - 29 -
Secretary-General does not deny that the national courts can have a role to play in this context.
Normally,the question of immunity doesnot evenarise until a national courtsis seisedwith a case
in which immunity is invoked. But, even if this is the case, the responsibilityto ensure that the
obligations underthe Convention are notviolated always rests with the Government. Inthe present
case, the Government of Malaysia has not in any way assisted the United Nations in asserting its
immunity. Mr. President, 1respectfully submitthatthe Cumaraswamycase isprecisely of the kind
that the Convention is there to prevent.
72. Also,the Government of Malaysiahas maintainedthatthe Secretary-General shouldhave
recognized that it takes the concordant practice of al1or most of the parties to a convention to
establish an agreementregardingits interpretation (1refer to the oral statement para. 74). Sincethe
Secretary-General must have had reason to believe that there was a problem, he should have said
so (ibid., para. 72).
73. But, Mr. President, the truth is that these problems have not really presented themselves
until now. In other cases, member Stateshave in some way or other been in a position to observe
their obligations under the Convention.
74. The statement of the Governrnentof Malaysia also seemsto disregard another important
fact: the Convention contains a dispute settlement clause over which the International Court of
Justice is competent to rule. An advisoryopinion of the Court is binding on the parties. Thus, we
must not forget that the international Court of Justice is in a position to develop a practiceunder
the Convention in almost the same way as inother caseswhere it construes treaty law. This is not
different from many other situations where an international organ is established to rule on the
application of a specific instrument under international law. The different committees and courts
that apply international human rights law cornes to my mind in this context.
75. Mr. President,havingmade thisparticular reference, allowme to stateforthe recordthat,
today, we celebrate the fiftieth anniversary of the adoption by the General Assembly of the United
Nations of the Universal Declaration of Human Rights. 1 know that we, al1of us present in this -30 -
room, subscribe to the ideas embodied in this important instrument. me, therefore,
Mr. President close on this note of unanimity in this importantfield of internationallaw, and ask
the Court to guide us in theific questionwhere we seemto differ. Thankyou.
The PRESIDENT: Thank you so much, Mr. Corell. The Courtwill now suspend for
15minutes, and resume at1.25 a.m.
TheCourt adjourned@om 11.1Oto 11.25 a.m.
-
The PRESIDENT: Please be seated. 1 now cal1on the distinguished Ambassador of
Costa Rica, Ambassador Conejo.
Mr. CONEJO:
Introduction
1. Mr. President, Mr. Vice-President and distinguished Membersof the Court. In the oral
presentationwo days ago of its "updated position", whichfills 50 pages of the Court's verbatim
record, Malaysia in fact presentedsignificantnew argumentswhich, at times, contradictedits own
earlierwritten submissionsto this Court. Simultaneously,Malaysia submitted80 pages of written
argumentwhich likewiseboth extendedbeyondand in partcontradicted the142 pagescomprising e
Malaysia's authorized writtenstatementandcommentssubmittedpreviouslyinaccordancewiththis
Court'sOrder of 10August 1998.
2. It is a matter of concernto CostaRicathat the Courtdoesnot losesight of the core of the
matteroriginallypresentedto it as a result ofthe new arguments,whichlackrelevanceforthis case
and may not even be admissible at this point. Since there is an attempt to introduce these new
arguments, however, CostaRicas compelled to offer a reply in an effort to place them in their
properperspectiveand thus eliminate any dangerthat the Court's attentionmight be diverted from
the issues actuallybefore it. Therefore,Mr. President, withyour 1would respectfullyrequest that you invite now Mr. Brower to present a reply to Malaysia's oralstatement on behalf
of the Republic of Costa Rica.
The PRESIDENT: Thank you Mr. Ambassador. Mr. Brower.
Mr. BROWER:
3. Mr. President,Mr. Vice-Presidentand distinguishedMembersofthe Court. In brief reply
to Malaysia's"updated position", Costa Rica comments, first, on the scope of ECOSOC's request
for an advisory opinion and, second, on Malaysia'slegal obligations in this case.
Scope of ECOSOC's request for an advisory opinion
4. Although happily the distinguished Solicitor-General of Malaysia has affirmed "that
Malaysia is not an unwilling or reluctant participant in these proceedings"', Malaysia's casuistic
attempt unilaterally to redefine the scope of ECOSOC'srequest for an advisory opinion strongly
suggests the contrary.
5. Malaysia seems to suggest that the scope of ECOSOC1srequest for an advisory opinion
exceeds the boundaries of the actual "difference"between it and theUnited Nations that gives rise
to the request. That "difference" it finds "was identified in the draft section proposed by the
Secretary-General to ECOSOC:"in paragraph 21 of his Note, which draft question specifically
addressed the issue of the authority of the Secretary-Genera12. Malaysia proceeds to assert,
therefore, that
"Malaysia has not come here to consider whether, objectively viewed, the
SpecialRapporteur's conductoccurred inthe performanceof his mission. Thatis not
the questionut this stage of thepro~eeding."~(Emphasis added.)
'Statementof Dato'HeliliahYusof,CR98/16,para.2 (8 Dec. 1998).
21d.,para.12.
31d.,para.13. - 32 -
6. The unspoken conclusion latentin this bold pronouncement is that Malaysia may not
regard as decisiveunder Section 30 of the General Convention,and thus may choosenot to abide
by, any ruling by this Court on the merits of the Secretary-General's claimof immunityas regards
the Special Rapporteur. Costa Rica here would note,however,the forthright statement made the
day before yesterday4on behalf of Malaysiaas follows: "1 can assurethe Court that Malaysia has
no intention ofacting in a manner violative of its internationalduties."
7. Malaysia is wrong, of course, as regards the relationship of the "difference"existing
between it and the United Nations to the request for an advisory opinion. The very draft of the
request embodiedinparagraph 21 ofthe Secretary-General'sNote, on whichMalaysiarelies,opens
by "[clonsideringthedzflerencethat has arisenbetweenthe UnitedNations andthe Governmentof
Malaysia with respect to the immunityPom legal process of. . .the Special Rapporteur . . ."
(emphasis added). ECOSOC's request of5 August 1998uses almost identical language:
"Consideringthat a difference has arisen between the United Nations and the
Government of Malaysia . ..with respectto the immunityfiom legalprocess of. . .
the Special Rapporteur .. ."
8. Thus the difference has been defined clearly and consistently both in the
Secretary-General'sNote,onwhich Malaysiarelies, and in ECOSOC'srequest, which was adopted
byconsensus(inwhich Malaysiaexpressly includesitself). ThefactthatECOSOC,byaconsensus
decision, in which Malaysiaclearlyjoined, rephrasedits request for a resolution of thisdifference
alters nothing: notthe nature of the difference itself, not the power of this Court to decideit, and
definitelynotthe obligation ofMalaysiato acceptas decisiveofthat differencethis Court'sopinion
respondingto that request.
9. The desireof ECOSOCthat this Courtresolvethe differencebetweenthe UnitedNations
andMalaysia is clearlystatedin ECOSOC'srequest. Malaysiaitselfhas recognized thisin various
ways at 7.8, 7.11, 9.4 and 9.10 of its written statement, as well as at 1.1and 4.7 of its written
4Statementof SirElihu Lauterpac, R98/16, para.2fl(8 Dec. 1998).comments. Moreover, it has acknowledged the same when, at pages 42 and 43 of its written
statement, it chose to quote from Judge Oda's separate opinion in Mmilu as follows:
"It may be contended that the Court has merely been asked to give its opinion
'onthe legal questionofthe applicabilizyof Article VI, Section 22, of the Convention'
(emphasis added), not to consider the matter of its application. . . .[I]t is not...
possible to determine the applicability of [Article VI, Section 22, of the General
Convention] to a concretecase without adequatereference to the way in whichit may
~pply."~ (Emphasis added.)
As 1mentioned in my statement on Monday6,ECOSOC'srequest
"specificallyasks the Courtto 'tak[e] into account the circumstances' ofthis case, and
thus makes it clear that that request was drafted with Mazilu in mind and hence with
the intention that the Court consider the underlying factual circumstances in opining
on whether the Special Rapporteur is immune from legal process of every kind. In
short, the Court'sjurisdiction to rule on the Special Rapporteur's immunity could not
have been more clearly invoked."
10.Malaysia's contrary statementtwo days ago, that "'[alpplicability'means . .. not 'howit
is to be applied"", diminishes neither the scope of ECOSOC's request nor the force of Malaysia's
own previous acknowledgement and acceptance of it.
11. Forthese reasons,and forthereasons given in itsprior submissions,CostaRica reaffirms
its view that ECOSOC's request specifically asks the Court to decide whether the Special
Rapporteur is immune from legal process of every kind.
Malaysia'slegal obligations in this case
12.Mr. President, Mr. Vice-President and distinguishedMembers of the Court. 1will now
turn to the issue of Malaysia's legalobligations in this case. In this regard, we were of course
pleased to hear from the learned counsel for Malaysia that immunity should be determined "as a
preliminary or threshold question, without entering into the substance of the case more than is
necessary for that limited purpose"; that "in the course of that preliminary procedure a certificate
'Statementof the Govemment ofMalaysia,42-43 (Oct. 1998).
'Statementof Mr. CharlesN. Hrower,CR 98/15, para.(7Dec. 1998).
'Statementof Dato'HeliliahYusof,CR 98/16, para.(8Dec. 1998). - 34 -
from the Secretary-General .. .would naturally be one to which the greatest respect would be
paid"; that "[ilt would be of the highest authority in establishing the relevant facts"; and that
"[olnce the national court has been informed ofthe claim to immunity, itwill staythe substantive
proceedings while the question of immunity is con~idered"~.
13. If only this view hadbeen shared also by the courtsof Malaysia,we wouldnot be here
today. The fact is, however, that the High Court in Kuala Lumpur decided on 28 June 1997to
delaya finaldeterminationof the SpecialRapporteur'simmunity until afterafulltrialonthe merits,
afterdismissingthe Secretary-General'scertificate"asanopinion[that]hasnomoreprobativevalue
than a documentwhich appearswanting in materialpartic~lars"~.That decisionwas confirmedby
the CourtofAppeal, and leaveto appeal furtherwas deniedbyMalaysia's highest courtt ,he Federal
Court, in an opinion that referred tothe Special Rapporteurdismissivelyas "an unpaid,part-time
provider of inf~rmation"'~
14. Counselfor Malaysia submitsthat becausethe General Conventiondoes notspecifically
addressthe Secretary-General'spowerto determine with conclusiveeffectthe natureofthe conduct
in question, such power does not existl'. In supportof his view he refersto "the classicstatement
by the Permanent Court of International Justice in the 'Lotus'case that 'restrictionsupon the
independence of States cannot be pre~umed""~. As international lawyerswe are, of course, al1
familiar with this phrase, but perhaps forgetful of the context of the paragraph in which it is
embedded in the Permanent Court'sJudgrnent. Thefull quote reads as follows:
"International law govems relations between independentStates. The rules of
law binding upon States therefore emanate from their own free will as expressed in
'Statementof Sir ElihuLauterpac, R98/16,paras.5, 8 (8 Dec. 1998).
9MBfCapitalBhd & Anor v. Dato'Param Curnaraswamy(HighCt.,KualaLumpur2 , 8 June1997),1997MLJ
LEXIS328, *26,39.
'O~ffd,Ct.App.Malaysia,slip op.W-02-323-1997,Judgmentof 20 October 19, p.28-30; leaveforappeal
den'd,Federal Ct.f Malaysia,cisionof 19February1998(DossierNo. 55).
"Statementof SirElihuLauterpach, R98/16,para.13(8 Dec. 1998).
I2ld.,para.32. conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these CO-existingindependent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of States cannot therefore be presumed."13
15. As stated in its written submissions, it is the view of Costa Rica that, by virtue of its
accession to the General Convention, Malaysia freely accepted its obligations under that
C~nvention'~. In particular, as stated by Judge Shahabuddeen in his separate opinion in Mazilu,
Malaysia thus has "by necessary implication conceded to the United Nations a right in good faith
(not questioned in this case) to determine" whether an expert has acted within the scope of his
mandateI5. Malaysia cannot, therefore, now be heard to argue that an obligation it has expressly
accepted must be interpreted narrowly.
16. Remarkably, after completing a review of State, diplomatic,consular and foreign armed
services immunity, and concluding that the receiving States' courts almost invariably determine
claims of immunity, Malaysia made this statement:
"Doesthe nature ofthe 1946Conventionmake any difference? This is a crucial
question, yet none of the statements made in this case, whether written or oral,
approach it . . .If any such grounds are developed .. . Malaysia must, on the basis
of the rule of audi alterem partem, be entitled to respond to them."16
17. Yet, Costa Rica clearly anticipated and disposed of this argument at pages 20 to 21 of
its written statement submitted on 7 October 1998:
"It is precisely to preclude such municipal impairment of immunities that the
General Convention providesan exclusivedispute settlementprocedure inArticle VII,
Section 30, requiring that a binding advisory opinion by the Court 'shall'be sought as
to '[alIl differences arising out of the interpretation or application of the' General
Convention. (Emphasis added.) By usingthe words 'all'and 'shall',Section 30 clearly
excludes municipal courts from the settlement of disputes arising under the General
Convention.
'3'Zotus"JudgmentNo. 9, 192:',,P.C.I.J..SeriesA, No. 10.
I4Writtencommentsof the Governmentof CostaRica 16(6 Nov. 1998).
15ApplicabilofArticle VI,Secition22, of theConventiononthePrivileges and Immunitieosfthe UnitedNations,
AdvisoryOpinion,I.C.J.Reports 1989216 (sep.op., JudgeShahabuddeen).
l6Statementof SirElihuLauterpacht,CR98/16,paras58-59 (8Dec. 1998). In thisrespect, issuesof immunityunder theGeneral Conventionclearlyare, and
must be, treated differently than for example, issues of immunity of bilaterally
accrediteddiplomatic and consularofficers. Thelatterareas enjoynoexclusive dispute
settlement mechanism. There it perforceis thepracticeof national courtsto determine
independentlywhether aparty fulfilstherequirements of immunity. The consequences
of this are, by comparison, tolerable for, as the Court has pointed out, the law of
diplomatic and consular immunity is a self-contained régime that derives its
effectiveness,and hence itsprotection,fromthe inherentprincipleof reciprocity,which
likewise more securely guarantees a uniform application of the law by States. The
same is not true as regards off~cialsof the United Nations." (Footnotes omitted.)
Malaysia has hadtwo months alreadyinwhichtoexerciseits rightto confrontthis dispositive
answer, 1respectfülly submit, to this "crucial question".
18.Yet it is not only on the conceptual level that Costa Rica disagrees with Malaysia. 1am
constrained to express the most serious reservations regarding the numerousjudicial cases referred
to as State practiceunder the General Convention in support of Malaysia's view. This applies in
particular to the English Court of Appeal Judgment in Zoernsch v. Waldeck", where a crucial
distinction is to be made. The court in that case had no choice but to rely exclusively on its own
determination of whether a defendant had acted in his official capacity, since the certificate issued
by the Secretary General of the Council of Europe related only to the fact of employment of that
defendant.
19. The American cases cited by Malaysia are similarly irrelevant. In United States v.
Egorov", the only certificate issued was oneby the United States Department of State, not by the
United Nations, which related only to the factthat the defendant was not accredited, and hence not
to the nature of his activity. InUnited States ex rel. Casanova v. Fit~patrick'~,which involved a
member of the Permanent Mission of Cuba to the United Nations, no certificate was issued by
anyone. As regards Menon v. Weil,even Malaysia acknowledgesthat no certificate was issuedby
"Statementof Sir ElihuLauterpac, R98/16,para.59 (8 Dec. 1998).
''Id.,para.77.
I9Id.,para.78. - 37 -
the Secretas.-General, and relies instead on obiter dictum by a municipal small claims courPo.
Finally, in the Austrian case of X v. ViennaFederalPolice Boardno certificate was issued by the
International Atomic Energy Agencyl.
20. Therefore none of these cases supports Malaysia's position. To borrow the words of
Malaysia'scounsel, "these are hardly the building blocks to support the assertion of a major point
of ~rinci~le"~~.
21. As regards the views of writers who have given special attention to the law of
internationalorganizations or the law of immunities, 1am confidentthat the weight of authority is
not as Malaysia would have the Court believe. The record is not correctly stated. As an example,
when quoting from the Restatement(Third) of the Foreign Relations Law of the United States, it
is not sufficient, and in the context of this case it is even misleading, to do so solely in supportof
the assertion that the domestic courts should decide on the character of the conduct in question.
In this context it is essential to point outthat it is the practiceof United Statescourtsto addressthe
question of entitlement to immunity as a threshold jurisdictional questionz3. Relatedly, it is
inaccurateto characterizethe position of the United Statesandthe United Kingdom, both of whorn
presumably believed, as did we all, that Malaysia'spositions were required to have been set forth
in itswritten statement and written comments, and doubtless on thatbasis decidednot to participate
in these oral proceedings, as being "virtually identical" to that of Malay~ia~~.
22. 1would remindthe Court atthis point also ofthe "deeplyreasoned analysis"constituting
an entire recent book on the subject of finctional immunity which supports the position of the
UnitedNations here andwas discussedat length at pages 21to 22ofCosta Rica'swritten statement.
- -
''Id.,para.79.
2'Id.,para.80.
=Id.,para.103.
23~eewritten statemenstubmiaedby the United Statesof America,13, para.20 (7 Oct. 1998); Restatement
(Third)of theForeign Relatios awof theUnitedStates,392-393(1987).
24~tatemenotf Sir Elihu LauterpaCt, 98/16, para.6 (8 Dec. 1998).1would citealsoone of the pre-eminent contemporaneous publicauthoritiesonpublic international
law, namely, counsel for Malaysia. In his Hague Academy lectures 22 years ago on
"The Development of the Law of International Organizations by the Decisions of International
Tribunals"SirElihu discoursedonthe subject of implied powers of international organizations. He
stated:
"Evidently,the determinationthat it is essentialto implya power rests initially
with the organ which adoptsa resolution reflecting the assumption that the claimed
powerexists. Sothe questionthen becomesone of whether, inthose situationswhere
a procedure of judicial review is available, there is any substantive limit upon the
power of the judiciary to review the initial decision of the organization. In abstract
theory there ought not to be. The question of 'essentiality' appears,on its face, as
muchjusticiable as any other issue. However,there is a possibly significant sentence
in the Advisory Opinion of the International Court on tEffe ctAwards which
identifies this as an area of uncertainty in which one must move with caution."25
(Footnotes omitted.)
Hecontinued,followingdiscussionofthis Court's Advisory OpinionintheEffe cfAwards~~
case, to conclude that
"therestraint by the Court appearsto accordwith the ideathat the Organizationis the
best judge of what circumstances require andto this extent, therefore, the Court's
restraint is directed towards the more effective fulfilment of the objectives of the
Organi~ation"~'(footnote omitted).
Surely this constitutes acknowledgementof the legal propriety of the Secretary-General's
conclusionthat by necessary intendmenthis certificate insulatestheson certifiedby him to be
immunefrom "legalprocess of everykind,"unless,andonlywhen,this Courtdeterminesotherwise
in a Section30 proceeding.
"152Recueildes Cours 377,428 (1976IV).
2%C.J.Reports 1954, p. 47.
*'15Recueildes Cours377, 430 (1976IV).Conclusion
23. Mr. President, Mr. Vice-President and distinguished Members of the Court. Two
noteworthy facts must be stressed in conclusion. One belies Malaysia's substantive position; the
other underscores the real significance of this case.
24. The first is that in the course of 50 years only twice has a "difference" between the
UnitedNations and a State Partyto the GeneralConvention been broughthere for resolution under
Section 30. That alone is suggestive of a settled interpretation of the General Convention and a
practice among StatesParties which secures performance of the obligation under Section 22 (b)to
respect "immunity from legal process of every kind", an obligation that al1(including Malaysia)
agree is one of result.
25. The second is the factthat each of these two cases, Mazilu andthe present one, involved
a national ofthe Statehavingadifference withthe UnitedNations. Thusit seemsthat the difficulty
ariseswhen a State party to the General Conventionis compelled to accord one of its own nationals
what that State may regard as an extraordinary right. It is telling that Malaysia emphasizes that
"[nlor, inprinciplewouldthe MalaysianGovemmentcomplain ifcontinuedobservationswere made
about any aspects of its Govemment ifthey were indee true and fairw2T 'h.e point, however, is
precisely that Malaysia, with binding effect on its courts, by virtue of Malaysia's own agreement
to the General Convention, has disclaimed any right to make such a legal judgrnent. This
underscores the great significance of upholding here, in this proceeding, the applicability of
Section 22 (3) to the Special Rapporteur. In short, the immunities granted by the General
Convention must be adjudicated, if at all, by this Court, and not by national courts, just as the
Convention intended.
26. Mr. President, Mr. Vice-President and distinguishedMembers of the Court. 1thank you
again for your kind attention and for your consideration of Costa Rica's legalarguments.
"Statementof Dato'HeliiiahYusof,C98/16para.18 (8Dec.1998). -40 -
ThePRESIDENT: Thankyou,Mr. Brower. 1nowcal1onthedistinguished Solicitor-General
of Malaysia.
DATO' HELILIAHYUSOF: Mr.President and Members ofthe Court, 1thank you once
again for giving me this opportunityto Saya few words on behalf of the Governmentof Malaysia.
1 shall be relatively brief this moming. My statementstoday will consistof three parts. The first
part will be addressedtowards certain clarifications which1feel incumbent to make; the second
part will relate to the referencesthat there were, in fact, two years of negotiations; and the third
part will refer to certain interpretationsconcerning Section 30 which hasbeen frequentlyreferred
to in these oral proceedings.
With referenceto the first part, Mr. President and Members ofthe Court, 1wish to place on
recordthe followingstatement. OnMonday, 7 December 1998,Mr. Zacklinhadsaidin the course
of his statementthat the four casesagainstthe Special Rapporteurin Malaysia"havebeen fixedfor
trial between 2 and 9 February 1999". 1regret that this is not entirelycorrect. What is correct is
that the hearings on the question ofstay in respect of three of the four cases have been deferred
until9 February 1999whentheyaredueagainto be mentionedin court, andwhenthe plaintiffwill
join in requestinghrther postponements untilthis Court's advisoryopinion hasbeenrendered,and
sufficienttime has been given to al1concerned to consider its implications.
The position in the first of the four cases is the sarne, although it is fixed for mention on
16December. However,it will then be treated in the sarneway as the other cases. As to cost,the
requirementfor the payment of costsby the defendanthas also been stayed,andthat aspect of the
case will be deferred and considered in the sarneway.
Onthe secondpart,Mr. President andMembersoftheCourt,there havebeenreferenceshere
today about two years of negotiations. 1 consider it relevant for me to respond tothese specific
references, since the notes submitted by the United Nations alongside its Dossier have in fact
referredto certain negotiationsthat had transpired but in respect ofwhichthe documents werenot
to be made available to this Court in these oral proceedings. Forthe reasons that the United - 41 -
Nations had refrained from submitting this document, Malaysia also thought that in good faith it
would not do so as it would not necessarily lend assistance to the Court in the issue that has been
emplaced before it. Nevertheless, it would suffice for me to remark that in those two years what
was primarily the subject of discussionwas the content of the certificate, the manner in which the
MalaysianGovernment intervenedand the fact that in the normal procedurethe matter was already
subjudice and Malaysiawas not in a positionto intervene in respect of proceedings which involved
not the actions of the Govemment of Malaysiabut the actions of a plaintiff seekingremedies under
its own laws.
However, Mr. President, it would also be necessary for me to express Malaysia's concern
since references have been made to such negotiations. Malaysia does not deny, in the words of the
United Nations, that the preseni:circumstances seem to the United Nations would set a dangerous
precedent for the application of its human rights system. Equally, Sir, Malaysia considersthat the
decision in this Court is very important as it would enunciatecertain principles in respect of which
certain proceedings would also be followed,or where member States would be obliged to comply.
It is incumbent upon Malaysia,therefore,to indicate certaindifferences inthe facts ofthis case and
that of themuch- and oft-quoted MaziIu case.
To the Govemment of Malaysia, the present circumstances are also very important because
it has, as Malaysia had stated or1the morning of Tuesday, disclosed the following in respect of the
application of the human rights system. Firstly, Malaysia was not even aware of the appointment
of the Special Rapporteur. Secondly, it would appear that in the application of the system, a
national of a member State who is appointed as a Special Rapporteur could be accorded a broad
latitude to publicize anything and anywhere about his country's situation, even in a thematic
reporting system. 1only relate this, Mr. President and Members of the Court, to illustratethat this
could be a source of conflict between the United Nations and a member State as has transpired in
the present proceeding. It has become somewhat a semi-contentious proceeding, if 1 may so. In addition, it isalso incumbentuponmeto respondto certainremarksthatwere madeearlier
this morning with regard to the possibilities of an interpretationand alleged misapplication ofa
treaty leading to certain pejorative statementsbeing made, which is, of course, again, regrettable.
I
Amongst others, Mr. President and Members of theCourt, 1would ask foryour indulgence
to allow me to refer to certain remarks in the dossier (DossierNo. 38). 1quote, inte arlia, it is
stated here:
"It is the position of the United Nations that to expose one of its Special
Rapporteurs to such burdensome proceedingsand potentially minous expenses and
taxed costs, quite aside from any substantivejudgmentthat mightbe awarded against
him, in respect of words uttered in the performance of the Rapporteur'sofficia1
functions as determined by the United Nations, is calculated to interfere with his
independence in performingthese hnctions and islikelyto have a negativeeffect on
the autonomy of other suchRapporteursand similarexpertsonmission, whomay fear
that the performance of their functions could result in comparable destructive legal
attacks against them."
Again, Mr. Presidentand Members ofthe Court,itwould appearthatthereare seriousdoubts
expressed about the system of national adjudicationwhich at this stage, in Malaysia, istill at its
interlocutorystage. 1quote againthe following statement which Malaysiaconsidersrecriminative
of the proceedingsthat had transpired in Malaysia,thisis in referenceto statementsmade (Dossier
No. 54bis). It Stateshere inter alia:
"Finally, threatening the immunity of one expert constitutes an attack on the
entire United Nations system of expertson mission employed in the Organization's
human rights mechanism. What is more, the decisions ofthe Malaysian courts not
only affect the immunity of expertson mission but also of the United Nations, UN
officiaisand otherpersonsworkingforthe Organization. Indeed,ifthesedecisionsare
not corrected, they could have a chilling effect on the ability of independent experts
to speak out, in complete independence and impartiality, againstviolations of
international human rights standards."
Mr. PresidentandMembersoftheCourt,three consequentreportswere lodged bythe Special
Rapporteur and the Govemment of Malaysiadid not undertake any steps to institute proceedings
againstthe SpecialRapporteur. For thosereasonsalone,Mr. President,1sincerelyexpressthehope
that what has been misperceivedin the positionof the national courts proceedings wouldperhaps
be clarified by my statementstoday. Beforeconcluding my remarks, 1would liketo refer again to Section 30, which has been the
subject of much interpretation. In Malaysia'sview, in the circumstances of the present matter,
Section 30 has not been appiied more usefully. Malaysia would like to make references to Dossier
No. 67, which reflected that the General Assembly should propose to the member States of the
United Nations, a general convention which would determine the detailed application of
paragraphs 1and 2 of Article 105ofthe Charter, aswell as certainobservations made inthe Report
of the Sixth Committee on the privileges and immunities of the United Nations. The following
statement,inter alia, wasthestatement of Sir Hartley Shawcrossofthe UnitedKingdomconceming
Section 30:
"The final matter to which 1want to refer only in a word is Section 30 of the
Convention, which deals with the reference of disputes to the Intemational Court of
Justice. Two or three States found it necessaryto make some reservation in regard to
that matter. 1could not help thinking there was some misconception in regard to it,
because that provision for reference of disputes under the Convention to the
International Court only comes into operation in the event of the parties to a dispute
not being able to agree to its settlement by any other means. If parties to a dispute
under this Convention cannot agree to a settlement by any other means, then it is, in
our view, quite essential that something should be provided in the Convention so as
to ensure that disputes, if they unhappily arise, are settled."
It is therefore regretted that whilst Section 30 is intended to incorporate peacefuleans of
issues,there is so much emphasis onthe conflictsarisingout of the implementation, notonly of the
Charter but also the GeneralConvention,that the true nature of the General Convention may now
have been misrepresented.
A certain interpretationhas been imposed inrespect of Malaysiaalthough the interna]organs
of other member States have been placedin similarpositions. With somuch emphasis on conflicts,
littlehas been seento ensurethat thedifferences between the Secretary-General and Malaysia,have
notbeen enlarged. Theapproachthatwas taken against Malaysia istherefore, 1 respectfullysubmit,
to amount to a selective application of Section 30. As a result, herjudicial organs have also been
the subject of pejorative statements unprecedented in terms. It seems so easy to proclaim breach
as against Malaysia. This, recalledthe reminder by thejudge in the Certain Expenses case, 1 refer
here respectfully to Judge Koretsky, "the Court must not shut its eyes to reality, the image of - 44 -
Themis with hereyes blindfolded is only an image fiom a fairy tale and fiom mythology". The
Court taking reality into consideration should, atthe same time, have in mind a strict observation
of the Charter. 1 am prepared to stress the necessity of the strict observation and proper
interpretationof the provisionsof the Charter, itsles, without limiting itself by referenceto the
purposesof theOrganization,otherwiseonewouldhavecometothe long-condemnedformula: the
endjustifies the means.
Mr. President and Members of the Court, may 1,in concluding my remarks, also take this
opportunityof giving the assurances of the Government ofMalaysia. Once again there has been
statements expressing doubts of Malaysia's intentionsto honour its obligations. W
May 1conclude, Sir,that in assuringthe Courtthat Malaysiafully recognizesthe provisions
of Section 30of the General Convention, whichaccordsbindingqualiîyto the advisory opinion of
this Court. Thank you Sir, for this opportunity and 1 respectfully ask you to give Sir Elihu an
opportunity toaddress the Court further on the matter.
The PRESIDENT: Thank you so much Solicitor-General. 1cal1upon Sir Elihu.
SirElihuLAUTERPACHT: Mr. President, Membersofthe Court,atthis hour 1am sureyou
will beanxiousaboutthe lengthof anyremarksthat 1maketo you, as indeed1amtoo. 1will limit
w
myself, therefore,totwo matters. First, the scope of the question and second,the answer to the
question of the power of the Secretary-General.
1do not want to weary the Court unnecessarily withfurther explanationof why Malaysiais
so completelyopposed to the interpretationof the question in the manner which permits it to go
beyondthe determinationof whether it is the Secretary-Generalwho has an exclusivecompetence
to qualie the act and proceedfurtherto determine whetherthe acts in questionactuallyfa11within
I
the course of the performance of the Special Rapporteur'smission.
The Court will forgive me for making, at this stage of the proceeding, a series of rather
staccato supplementarysubmissionson the matter of the scope of the question. 1regret that it is - 45 -
necessary to make them, for that necessity arises out of the clear failure by ECOSOC to comply
with the requirement inArticle 65,paragraph 2, ofthe Statuteofthis Court,that the written request
shall contain an exact statement of the question. The Secretary-General's original draft of
28 July 1998contained an exact statement of the kind required. Moreover, it was a full and fair
reflection of the only dispute that existed at that date between the United Nations and Malaysia,
namely, the issue of the legal effect of the Secretary-General'sdetermination. The reformulation
of the question by ECOSOC, for reasons not known, has only served to make the question inexact.
The first point: the procedure now before the Court is in essence a contentious procedure.
The procedure only takes advisoryopinion form because there is no other way in which the Court
can be seised of a dispute to which an international organization is a party.
Point 2: the request must be for an opinion on a legal question. That is what is prescribed
in the second sentence of Section 30 of the 1946Convention. It is also what is laid down in clear
tems in the first paragraph of Article 65 of the Statute of the Court.
Point 3: the Secretary-General's originaldraft question of 28 July 1998was clearly a legal
question relating to the powers of the Secretary-General. As such, it was properly limited to the
issue which had been discussed between the Parties prior to that date. Contrary to what was
suggested a few moments ago on behalf of Costa Rica, the question was not about whether the
Special Rapporteur satisfied the conditions of limited immunity.
Point 4: the circumstances in which the question came to be revised and the participants in,
and the content of, consultationswhich were referred to in the heading of the document placed
before ECOSOC for its adoption, which you will find in Dossier No. 61, have not been made
known to the Court. Malaysia is not a member of ECOSOC, its term of membershiphaving ended
on 31 December 1997and was, therefore, not a party to the consensusadoption of the resolution.
Malaysia'sparticipation inthe debatewas limitedto that of anobserver,not a member ofECOSOC.
Malaysia did notjoin in the consensus. The indications of its assent to a request for an advisory
opinion were al1given at an earlier time when the sole issue contemplated was seen to be the - 46 -
question of whether the Secretary-General's power to characterize the conduct of the
Special Rapporteurwas or was not conclusive. The principleofthe equalityofparties in litigation
beforethisCourt precludesthe Courtacceptinga changeofthequestion atthe instanceofoneparty *
alone.
Point 5: the revised form of words in the question submittedto the Court didnot changethe
substance of the original question. In particular the use of the words"taking into accountthe
circumstancesset out in paragraphs 1to 15 of theNote of the Secretary-Generaldid not andcould
not extend the question to invite or to enable the Court to consider whether the actions of the
Special Rapporteurfellwithin the course of the performanceof his mission". 1would respectfully w
invite the Courtto re-examinethose paragraphs in Document El1998194which are also printed in
the text of the question as it was conveyed to the Court in the document headed "Request for
Advisory Opinion",with a view to ascertainingwhether they contain any sufficient indicationof
"circumstances" that deal with the substantive issue of the scope of the Special Rapporteur's
mission, sufficientto support recourse tohose words as ajustification for enlargingthe issue. 1
suggestthatwhen theCourt looksatthat documentcloselyitwillfindthatthoseparagraphs 1to 15
contain nothingof the sort. It had beenmy intention, Mr. President, toperformthe excruciatingly
and boring taskof takingthe Court paragraph by paragraph throughthose paragraphs 1to 15,but
rl
1hope you will forgiveme if 1do not follow that intention,but rely upon your ownreading ofthe
matter. But in the most summary form, Mr. President, if you look at each paragraph of those
paragraphs 1to 15separately,you will find thatthere is nothing in them that extendsthe scope of
the problem. Apart from one summary reference in paragraph6 to the terms of the initial
determination by the Legal Counsel, there is not a word about the substance of the question of
whether Mr. Cumaraswamy'sconductfell withinthe courseoftheperformanceofhis mission. The
paragraph containsno statement of the considerationsthat ledto the Legal Counsel's conclusions,
apart from a statement that he had considered the circumstances of the interview and the
controvertedpassages before making his determination. 1willjust read that one sentence: "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
determinedthat Dato' Param Cumaraswamywas interviewed inhis official capacity as
Special Rapporteur on the independenceofjudges and lawyers, that the article clearly
referred to his UnitedNations capacity and tothe Special Rapporteur's United Nations
global mandate to investigateallegationsconcemingthe independenceof the judiciary
and that the quoted passages related to such allegations."
That is a partial, but by noeans a complete, statementofthe considerationsthat should have been
examined if 1 was to reach a substantive conclusion on what fell within the scope of the
Rapporteur'smission.
And 1would suggest that given that the Court is invited to present an opinion on a legal
question, the examination of the factual aspect of the performance of the Special Rapporteur's
mission is not within the Court's remit.
1should add that there is nothing to indicatethat the question now before the Court - as
is argued on one side of the Court - had ever been discussed between Malaysia and the
United Nations. It was said in the course of the speech of the representative of the
Secretary-Generalthatthematters hadbeen repeatedlydiscussed. Not so,Mr. President, at any rate
onthe instructionsthat 1have been given. My understandingis - and the Solicitor-General indeed
said soa few moments ago - that the discussions between Malaysia and the United Nations were
limited to the question of the certificate, whether the Secretary-General's certificate was to be
conclusive, whetherthe Government of Malaysia'scertificatewas the appropriatereflection of the
Secretary-General'scertificate, and in due course of the question asto how, if at all,the matter was
to be submitted to an impartial determination. The sole difference between the two sides was the
point of principle: who has the power in the first instance ofqualifi the character of the conduct?
Point 6: consequently, it is not possible to hang upon the questions referenced to
paragraphs 1to 15of the Secretary-General'sNote. Anyjustification for the belief that ECOSOC
in referring to those paragraphs was intending to extendthe scope of the question before the Court.
There is no sufficient evidence of discussion in those paragraphsto enable the Courtto decide the
question of fact, which some of the participantsare asking it to do. In any case, if it had been the -48 -
intention of ECOSOCto extend the scope of the question in the mannerwhich has been argued,
why then did it not Sayso, clearly, and unequivocally? Why did the questionrefer in such broad
terms to paragraphs 1to 15,instead of focusingon paragraph 6 alone, and developingthe factual
aspect of that paragraph?
Point 7: there is no precedent, Mr. President,for the Court dealing,in an advisory opinion,
with a controvertedquestion of fact or of mixed fact and law. The Court isnot entitledto assume
that such facts as are revealed in the Dossier are agreed facts. Nor can Malaysia'ssilence on the
facts betaken as amountingto agreementthereon. The substance ofissueis not beforethe Court.
Point 8: finally, 1am bound to recall what1may nothave saidwith sufficientprecision on
4
Tuesday,namelythat even ifthe Courtwereto considerthat ECOSOChadintendedto broadenthe
scope of the question, it does not possess the power to do so. Its action is ultra vires.o the
extentthat the resolution exceeds its proper bound, itmust bedisregarded. Now why do 1submit
that itisltraviresB ?ecausein implementingSection 30,ECOSOCismerelyavehiclefor placing
adifferencebetweenthe Secretary-GeneralandMalaysiabeforetheCourt. ECOSOC doesnothave
an independentposition to assert as it might have had were it seekingan opinion on some legal
question other than in the context of the operation of Article 30. ECOSOC, as 1 suggest,
Mr. President, is no more than an instrument of reference, it cannot change thenature of the
differenceor alter the content of the question. With your leave, Mr. President,ouldventure to .J
remindthe Courtof the AdvisoryOpinionthat it gave in 1956on Judgementsofthe Administrative
Tribunal ofthe InternationalLabour Organisation, whichis reported in the I.C.J. Reports1956,at
page 77. As the Court will recall, that was an Advisory Opinion that was requested by the
Executive Boardof UNESCOpursuantto Article XII of the StatuteoftheAdministrativeTribunal
of the ILO, the Administrative Tribunal to which UNESCO problems were referred, and that
provided that in any case in which the Executive Board of international organization whichhas
madethe declarationsspecified in the Statute,challengesa decision ofthe Tribunalconfirming its
jurisdiction or considers that the decision of the Tribunal is vitiated by a fundamentalfault in the - 49 -
procedure followed, the question of the validity of the decision given by the Tribunal shall be
submitted by the Executive Board concerned for an advisory opinion of the International Court of
Justice; the opinion given by the Court shall be binding. Now the Court made some interesting
remarks aboutthat power, and 1read now, Mr. President, from page 99: "Undoubtedly,UNESCO
has the general power to ask for an Advisory Opinion of the Court on questionswithin the scope
of its activity." But the question put to the Court has not been put in reliance upon the general
power of UNESCO to ask for an advisory opinion, it has been expressly linked with Article XII,
which 1 have just read to you. In its terms and by virtue of the place which it occupies in the
resolution requestingthe advisory opinion, question two, as put to the Court refersto thejudgments
which the Executive Board has challenged in relation to the jurisdiction of the Tribunal which
render thesejudgments. It is onthat basis, that the question must be considered by the Court. The
Court has foundthat the object of that question is outsidethe matter which, inthejudgments which
have been challenged, is germane to thejurisdiction of the Administrative Tribunal. In the request
for an advisory opinion, question 2 has been placedwithin the orbits of Article XII. Actually it is
outsidethat Article,accordingly it cannot be considered bythe Courtfor the purpose of acting upon
the request made to it. And, Mr. President, 1suggest by apparently reasoning that the extension of
the question as contended for by my friends on my right, is not acceptable because it is not within
the scope of the dispute that actually existed between the parties on a legal question. As the
Secretary-General said in paragraph 15of his Note of 27 July 1998,"the submission of the request
for an opinion was to be made through the counsel", it was not open to the counsel to expand the
question at al], and certainly not to change it from a question of law to a question of fact. And if
1 may respectfully so submit, Mr. President, the Court should not allow itself to be drawn into
giving a response to an expanded question that should not have been asked.
And now 1 would like to tum to the second part of my observations which relate to the
question of the power of the Secretary-General. The Court has heard a very powerful plea, on
behalf ofthe UnitedNations, for recognition ofthe conclusivepower ofthe Secretary-General. But, -50-
Mr. President, there is an invariant contradiction in the argument presented on behalf of the
Secretary-General. On the one hand, the importantaxim pacta sunt servanda was invoked;
treatiesmust be observed. Andthen, towardsthe end ofthe same argument,the Courtwas invited
to take note of the fact thatnce the adoption of the Convention in 1946, circumstances had
changed. The Court was asked to take note that there was really no problem untilnow, that there
are a number of new situations which warrant the possession by the Secretary-General ofthe
extended powernow claimed by him. 1would notquarrel, Mr. President,with the identification
bythe learnedrepresentativeof the Secretary-General ofthe interestsof theUnitedNations asthey
now exist, but, in relation to the case now before the Court, the Secretary-Generalcannot haveIrt
both ways. The Court, if 1 may so submit, should not condemn conduct- conduct of
Malaysia - that is in accordancewith thetreatyprovisionsas they havebeenunderstood untilthe
epoc, when the changed circumstancesto which the Secretary-General'srepresentative referred,
cameabout. It is,1think, to be observedthatthe Secretary-General's representativehardly crossed
swords with Malaysia on the interpretation of the treaty by reference to the standard treaty
interpretation considerations. Therewas no discussion ofthe literal meaning ofthe words, there
was no answerto what was said onTuesday aboutthe travauxpréparatoires.As regards practice,
therewas no answeron the cases. My friendMr. Brower,speakingonbehalf ofCostaRica, sought
to distinguishthe cases in a rather summary,but ifSay,withoutdisrespectto him, somewhat -
superficialmanner, the fact that certificateswere not issued in the cases, does not meet my point,
which isthat the courts felt free to examinein caseswhether the officialconcemed had been
acting in accordance with hisnctions.
No reference- this is most interesting- no reference whatsoever was made to the
legislation ofthe partiesto the 1946Convention, legislationin most respects parallelto that which
4
Malaysia adopted and which,as 1suggestedon Tuesday, was indicativeof their understandingof
what was expected of them. Not one of those statutes containedany suggestionthat the duty lay
upon the govemment first of all, to seek a determination by the Secretary-General, then to - 51 -
communicatethat to the Court in a binding manner and see what happened. And as regards the
otheraspects of practice,gain my learnedfriendactingforthe Secretary-General,repeatedthat the
measures of practice to which he points, really did not become identifiable until 1976 and he
referredto a supplementarystatement of 1983which 1must admit 1overlooked, but 1would be glad
to look at itater and see what it says,but he did notreally grapplewith the evidence of the United
Nations acceptance of the system established bythe 1946Convention, and understood by States in
the manner that 1 have already described.
He commented on the work of Mr. Jenks. He did not explainwhy Jenks failed to expressly
confirm the validity of the first of the three alternatives which he presented, narnely, the
Secretary-General's statement should be taken as conclusive. Jenks in 1961, 25 years after the
Convention had been adopted, did not commit himself to that position.
Mr. President, the Court has heard a significant plea in relation to the protection of the
interests of the United Nations. They are, of course, important and they should be protected. But
the way to protect them isby grapplingwith the problem deliberately and systematically, by treaty.
Giventhat thereare al1these new situations - Rwandaand soon,andthe mission inIraq - where
special requirements are needed, then let us face up to that and let the United Nations propose to
the parties to the 1946Convention, a suitable amendment which would ensure that inthe futurethe
problem bywhich the Court is now confronteddoesnot occur. But so far asthis case is concerned,
Mr. President, the Court, if 1may Sayso, must take it on the situationas it has been up till now and
not what it might be or ought to be in the future. The representative of the Secretary-General
attributed to me an argument that the United Nations had not set up the mechanism contemplated
in Article 29 and said that that would not have been possible because it would have been too
elaborate a task and would have involved a commitment of personnel and money inappropriate in
the circumstances.
Mr. President, 1 may have left myself open to misunderstanding on that matter. 1 was not
arguing for the establishment of any permanent tribunal. It would have been quite sufficient to -52 -
meet the needs of Article 29 if the Secretary-General of the United Nations had made a formal,
unilateral declaration which of course would be binding in law, saying, that in respect of any of *
these matters, he would be prepared to go to arbitration initiated by the private party or the
govemment concemed. That would have been an effective mechanism. But it is not an effective
mechanismforthe Secretary-Generalto Say"ah,buta governmentthat is interestedin such amatter
may come and ask for an advisory opinion", because as we can see from what happened in
ECOSOC, that is not an automatic process. ECOSOC took it upon itself, having received on
28 July the Secretary-General's Note, toconsider the matter at various informa1consultations until
the 5th of August,then to produce a text which was not the sort of text that Malaysia had ever had
*
in mind.
Mr. Brower paid me a great compliment by citing me in this Court; needless to Say 1
appreciatethat greatly. It is nice to know that somebody does look at some of the things one has
written, but he rather extended the concept of implied powers as 1 developed it in those Hague
lectures. 1am a friend ofthe concept of implied powers, 1do not deny it for a moment, when they
are properly implied, but there 1was talking about implied powers of membership organs of the
United Nations, SecurityCouncil, General Assembly and so on. But 1would not havesaid, 1do
not think 1did Say- but 1might be wrong - that the Secretary-General had the power to imply
for himself additional powers and thatthose powers automatically became valid. Now, what 1do W
recall from the recesses of old memory is, that in the pa-t and 1am thinking now of the Congo
operation - when the Secretary-Generalwas seeking to interpret the requests made to him bythe
Security Councilto perform certain functions, and he was uncertain as to whether his interpretation
of the functions imposed upon him was correct, and was doubtful as to whether in fact he hadthe
a-
necessary powers, he would go back to the Security Council and Sayto them "This is what you
i
asked me to do, am1correct in understanding that this is what 1must do?" In other words, it was
not a unilateral, self-implication of powers, it was a possible implication ofpowers dependentupon
ratification by the body that was asking him to act. - 53-
Mr. President, 1think 1have done very well. It is exactly one o'clockand 1,with your leave,
would respectfully ask to be allowed to terminate at this point. 1thank you and Members of the
Court for your kind attention.
The PRESIDENT: Thank you so much Sir Elihu for your statement. There are two
questions which Members of the Court wish to ask. May 1first cal1on Judge Guillaume?
M. GUILLAUME: Monsieur le président, ma question est la suivante. Je la pose à la
lumière des dernières déclarationsdu conseil pour la Malaisie. Je serais reconnaissant au
représentantdes Nations Unies de fournir toute information en sa possession sur les travaux
préparatoiresde la décision19981297par laquelle le Conseil économiqueet social a saisi la Cour.
Je vous remercie, Monsieur le président.
The PRESIDENT: Thank you Judge Guillaume. The Deputy-Registrar will now read out
a questionprepared by Judge Koroma,who ina spirit of fratemity, also issuffering fromrheumatic
problems. That question, and the question put a moment ago by Judge Guillaume, may be
answered in writing, let usaywithin ten days.
The DEPUTY-REGISTRAR: Question for the Legal Counsel of the United Nations.
Malaysia is invited to comment, if it wishes.
In the present case, what meaning is to be given to the expression "words spoken or written
in the course of performance of his mission"?
The PRESIDENT: Thank you. The oral proceedings on the request for an advisoryopinion
submitted by the Economic and SocialCouncil on the Dz#erenceRelatingto ImmunityfiomLegaI
Process ofa Special Rapporteurof theCommission onHumanRightsare thus concluded. At the
close ofthese proceedings 1should like to convey the thanks of the Court to the delegations who
have addressed the Court in the course of this week, as well as to the United Nations and to1
Stateswho have participated in the written proceedings. The Court deeply appreciatesthe interest - 54-
which al1concerned have shown and is most grateful for their help. 1invite the Legal Counsel of
the United Nations and the representatives of al1States concemed to remain at the disposa1of the +
Court in case it should require any further information or explanations from them.
May 1recall that in paragraph 1of the operativepart of its decision, 19981297,the Economic
and Social Council requested the Court to give its opinion on a priority basis. In accordance with
Article103of its Rules, the Court has taken the steps opento it to expeditethe procedure. Despite
its very full List, the Court has arranged to make a determination by this coming spring on the
questionthat has been submitted to it. Pursuant to Article 108of the Rules of Court, the Registrar
will in due course inform the United Nations and the States concemed of the exact date and time w
when the Court will announce its opinion. As the Court has no other business befo1declare
this Sittingclosed.
TheCourtrose at 1.00p.m.
Audience publique tenue le jeudi 10 décembre 1998, à 10 heures, au Palais de la Paix, sous la présidence de M. Schwebel, président