Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations

On 24 May 1989, the Economic and Social Council of the United Nations (ECOSOC) adopted a resolution whereby it requested the Court to give, on a priority basis, an advisory opinion on the question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Dumitru Mazilu, Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights. Mr. Mazilu, a Romanian national, had been entrusted, by a resolution of the Sub-Commission, with the task of drawing up a report on “Human Rights and Youth” in connection with which the Secretary-General was asked to provide him with all the assistance he might need. Mr. Mazilu was absent from the 1987 session of the Sub-Commission, during which he was to have filed his report, and Romania let it be known that he had been taken into hospital. Mr. Mazilu’s mandate finally expired on 31 December 1987, but without his being relieved of the task of Rapporteur that had been assigned to him. Mr. Mazilu was able to get various messages through to the United Nations, in which he complained that the Romanian authorities were refusing him a travel permit. Moreover, those authorities, further to contacts initiated by the Under-Secretary-General for Human Rights at the request of the Sub-Commission, had let it be known that any intervention of the United Nations Secretariat would be considered as interference in Romania’s internal affairs. Those authorities subsequently informed the United Nations of their position with regard to the applicability to Mr. Mazilu of the Convention on the Privileges and Immunities of the United Nations, asserting, inter alia, that the Convention did not equate Rapporteurs, whose activities were only occasional, with experts on missions for the United Nations ; that they could not, even if granted some of that status, enjoy anything more than functional immunities and privileges ; that those privileges and immunities began to apply only at the moment when the expert left on a journey connected with the performance of his mission ; and that in the country of which he was a national an expert enjoyed privileges and immunities only in respect of actual activities relating to his mission.

The Court rendered its Advisory Opinion on 15 December 1989, and began by rejecting Romania’s contention that the Court lacked jurisdiction to entertain the Request. Moreover, the Court did not find any compelling reasons that might have led it to consider it inappropriate to render an opinion. It then engaged in a detailed analysis of Article VI, Section 22, of the Convention, which relates to “Experts on missions for the United Nations”. It reached the conclusion, inter alia, that Section 22 of the Convention was applicable to persons (other than United Nations officials) to whom a mission had been entrusted by the Organization and who were therefore entitled to enjoy the privileges and immunities provided for in that Section with a view to the independent exercise of their functions ; that during the whole period of such missions, experts enjoyed these functional privileges and immunities whether or not they travelled ; and that those privileges and immunities might be invoked against the State of nationality or of residence unless a reservation to Section 22 of the Convention had been validly made by that State. Turning to the specific case of Mr. Mazilu, the Court expressed the view that he continued to have the status of Special Rapporteur, that as a consequence he should be regarded as an expert on mission within the meaning of Section 22 of the Convention and that that Section was accordingly applicable in his case.