Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations - The Court delivers its Advisory Opinion

INTERNATIONAL COURT OF USTICE
1'c.aPalric2517KJ The Hrig~ie.T(070-9244 41)Cables ~t~scoithe H,gue.

Communiqué
unofficial

forimmediate release

No. 89/24
15 December 1989

APPLICABILITY OF ARTICLE VI,SECTION 22, OF THE CONVENTION
ON THE PRIVILEGES AND IMMUNITIES OFTHE UNITEDNATIONS

The Court delivers its AdvisoryOvinion

The following informatioi ns made availableto the Press bythe
Registryof the International Cour of Justice:

Today, 15 December 1989t ,he Court delivered uananimousAdvisory
Opinionin the case concernint gheAv~licability of ArticleVI,
Section22. of the Conventionon the Privilepesand Immunitiesof the
UnitedNations.

That opinion had been requestedby the United Nations Economi cnd
Social Council under its resolution1989/75of 24 May 1989,of which the
integraltext is as follows:

"TheEconomicand SocialCouncil,

Havinn considered resolution1988/37of 1 September1988
of the Sub-Commissioo nn Prevention of Discriminatio and
Protectionof Minoritiesand Commissionon Human Rights
resolution 1989/37of 6 March 1989.

1. Concludesthat a difference has arisen between the
United Nations and theGovernmentof Romaniaas to the
applicability of the Conventionon the Privilegesand
Immunitiesof the United Nations[GeneralAssemblyresolution
22 A (1)] to Mr. DumitruMaziluas Special Rapporteuo rf the
Sub-Commission on Preventionof Discrimination and Protection
of Minorities;

2. Reauests,on a prioritybasis,pursuantto Article96,
paragraph 2, of the Charterof the United Nations and in
accordancewith General Assembly resoluti8 on (1) of 11 December 1946,an advisoryopinionfromthe International Court
of Justiceon the legal question othe applicabilit of Article VI,
Section22, ofthe Convention on the Privilegeand Immunities of
theUnited Nations it nhe caseof Mr.DumitruMazilu as Special
Rapporteurof the Sub-Commission."

In replyto the questionput to it, the Court expressethe opinionthat
Article VI, Sectio n2, of the Conventioon the Privilegesand Immunitiesof
theUnited Nations is applicable inthe case ofMr. DumitruMazilu asa

special rapporteur o the Sub-Commissioon Preventionof Discriminatioannd
Protectionof Minorities.

The Courtwas composedas follows: President Ruda; Judpes Lachs, Elias,
Oda,Ago, Schwebel, Jennings Bedjaoui,Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen anPdathak.

JudgesOda, Evensen and Shahabuddeeappendedseparateopinionsto the

AdvisoryOpinion.

(The separateopinionsare brieflysummarized in the attachedannex.)

The printedtextof the Advisory Opinionand of the separateopinions
will become availablien a fewweeks' time(ordersand enquiries shoul be
addressedto the Distributioannd Sales Section, Officof the United Nations,

1211Geneva, 10; the Sales SectionU ,nitedNations, New YorkN,.Y. 10017; or
any appropriatelyspecializedbookshop). J

An analysisof theAdvisory Opinionis givenbelow: thishas been
preparedby the Registry fortheuse of the pressand in no way involvesthe
responsibility otfhe Court. It cannotbe quoted against the teo xt the
Opinion,of which it doesnot constitutean interpretation. Analvsisof the AdvisorvOpinion

1. Reviewof the Proceedinasand Summarvof Facts (paras.1-26)

The Court outlinesthe successivestagesof the proceedings before it
(paras.1-8) and then summarizesthe factsof the case (paras.9-26). A brief
surveyof those factswill now be presented.

On 13 March1984 the Commissionon HumanRights- a subsidiary organof
the Economicand SocialCouncil(hereinafter calle" dthe Council"),createdby

it in 1946in accordancewith Articles55 (c) and 68 of the Charterof the
UnitedNations - electedMr. DumitruMazilu, aRomaniannationalnominatedby
Romania,to serve asa memberof the Sub-Commission on Preventionof
Discrimination and Protection ofMinorities- a subsidiaryorganset up in
1947by the Commissionon HumanRights(hereinafter called "the
Commission"), - for a three-year termue to expireon 31 December1986. As
the Commission hadcalledupon the Sub-Commissioo nn Preventionof
Discrimination and Protection ofMinorities(hereinafter called"the
Sub-Commission")to pay due attentionto the role of youth inthe fieldof
human rights,the Sub-Commission at its thirty-eighthsessionadoptedon
29 August 1985 resolution1985/12wherebyit requestedMr. Mazilu to "prepare
a reporton human rightsand youth analysingthe effortsand measuresfor
securingthe implementation and enjoymentby youth of human rights,
particularly, the rightto life,educationand work" and requestedthe
Secretary-Generat loprovidehim withal1 necessary assistancf eor the

completionof his task.

The thirty-ninthsessionof the Sub-Commission, atwhichMr. Mazilu's
reportwas to be presented,was notconvenedin 1986 as originally scheduled
but was postponeduntil 1987. The three-yearmandateof its members
- originallydue to expireon 31 December 1986 - was extendedby Council
decision1987/102for an additional year.When the thirty-ninth sessioo nf
the Sub-Commissionopenedin Genevaon 10August1987no reporthad been
received from Mr. Mazilu,nor washe present. By a letterreceivedby the
United Nations Offica et Genevaon 12 August1987,the Permanent Missioo nf
Romaniato that officeinformedit thatMr. Mazilu hadsuffered aheart-attack
and was still in hospital. Accordingto the writtenstatementof the
Secretary-General, atelegramsigned"D. Mazilu"was receivedin Genevaon
18 August 1987 and informed thSeub-Commissionof his inability,due to heart
illness,to attendthe current session. In thesecircumstances, the

Sub-Commission adopteddecision1987/112on 4 September1987,wherebyit.
deferred consideratio of item 14 of its agenda- underwhich the reporton
human rightsand youth wasto have beendiscussed - until its fortieth session
scheduled for 1988. Notwithstanding the scheduled expiratioonn
31 December 1987of Mr. Mazilu'sterm as a memberof the Sub-Commission, the
latterincludedreferenceto a reportto be submitted byhim, identifiedby
name, under the agendaitem "Preventionof discriminationand protectionof
children",and entered the report,under the title"Hurnanrightsand youth" in
the "Listof studiesand reports underpreparation bymembersof the
Sub-Commission in accordancewith theexistinglegislativeauthority".

After the thirty-nintshessionof.theSub-Commission, the Centrefor
HumanRightsof the United Nations Secretariat in Geneva madevariousattempts
to contactMr. Mazilu to providehim withassistancein the preparationof his
In December1.987,Mr. Mazilu
report, including arranging avisit to Geneva.
informedthe Under-Secretary-Genera for HumanRightsthathe had notreceived
the previous communication of the Centre. In January 1988,Mr. Maziluinformedhim thathe had been twicein hospitalin 1987and that he had been
forcedto retire,as of 1 December1987,fromhis variousgovernmental posts.

He also statedthathe was willingto travelto Geneva for consultation s,t
that theRomanianauthorities werr eefusinghim a travelpermit. In Apriland
May 1988,Mr. Mazilu,in a seriesof letters, further describ hids personal
situation; in particular,he alleged thathe had refusedto complywith the
request addressetdo hirnon 22 February 198by a special commissiofromthe
RomanianMinistryof ForeignAffairsvoluntarily to declineto submithis
reportto the Sub-Commissioannd,moreover,consistently complaint edat
strong pressure ha deen exertedon hirnand on his family.

On 31 December 1987the termsofal1 membersof the Sub-Commission,
includingMr. Mazilu,expiredas hasalreadybeen indicated.On
29 February1988 the Commission,uponnomination by theirrespective
Governments,electednew membersof the Sub-Commission amow ngom wasMr. Ion

Diaconu,a Romaniannational.

Al1 the rapporteurasnd special rapporteurof the Sub-Commissionere w
invitedto attend its fortieth sessi (8nAugust-2September1988),but
Mr. Maziluagaindid not appear. A special invitatio was cabledto him, to
go to Genevato presenthis report,but the telegramwsere notdeliveredand
theUnited Nations Informati Centrein Bucharestwas unableto locate
Mr. Mazilu. On 15 August1988,the Sub-Commission adopteddecision1988/102,
wherebyit requested the Secretary-General

"to establish contacwith the Governmentof Romaniaand to bringto
the Government's attentiothe Sub-Commission'urgentneed to
establish personac1ontactwith its Special Rapporteurr.Dumitru
Maziluand to convey the request thtahte Government aesistn

locatingMr. Maziluand facilitate avisitto hirbny a memberof the
Sub-Commissioannd thesecretariatto helphirnin the completionof
his studyon hurnanrightsand youthif he so wished".

The Under-Secretary-GenerfalrHumanRightsinformed the Sub-Commissi onn
17 August1988 that,in contacts betweetnhe Secretary-General'Officeand
the Chargéd'affaires of theRomanianPermanent Missiotno theUnitedNations
in New York,he had been told that theositionof the RomanianGovernmentwas
thatany intervention bt yheUnited Nations Secretari and anyformof
investigationin Bucharest woulbde consideredinterferencein Romanis's
interna1affairs. On 1 September 1988,the Sub-Commissioandoptedresolution
1988/37by which,interalia,it requestedthe Secretary-Genera to approach
oncemore the Governmentof Romaniaand invokethe applicabilityof the

Conventionon the Privileges and ImmunitioestheUnitedNations(hereinafter
called "theGeneralConvention");and furtherrequested him, inthe event
that theGovernment of Romaniadid not concurin the applicabilitof the
provisionsof thatConvention in thatcase,to bring the difference between
theUnitedNationsand Romania immediatelyto the attentionof the Commission
in 1989. It also requested thCeommission,in thatevent,to urge the Council

"to request,in accordancewith General Assembly resoluti89n(1)
of 11 December1946,fromthe International Cour of Justicean
advisoryopinionon the applicabilityof the relevantprovisionsof
the Conventionon the Privileges and Immunitioesthe
UnitedNationsto the present case and withinthe scopeof the
presentresolution". Pursuantto that resolutionthe Secretary-Generao l, 26October 1988
addressed aNote Verbale to the Permanent Representati ofeRomaniato the
United Nations iNnew York,in whichhe invoked the General Conventioinn
respectof Mr. Maziluand requested the RomanianGovernment toaccord
Mr. Mazilu the necessar yacilitiesin orderto enablehim to completehis
assignedtask. As no replyhad beenreceivedto thatNote Verbale, the
Under-Secretary-Generf alrHumanRightson 19 December 1988 wrota e letterof
reminderto the PermanentRepresentativo ef Romaniato theUnited Nations
Office at Genevai,n whichhe askedthatthe RomanianGovernment assist in
arrangingforMr. Maziluto visitGeneva sothathe coulddiscuss with the
Centre for HumanRightsthe assistance it mightgive him in preparinghis
report. On 6January1989 thePermanent Representative of Romania han tded
the Legal Counsel otfheUnited Nations an Aide-Mémoirein whichwas set forth
the RomanianGovernment's positionconcerningMr. Mazilu. On the factsof the
case, Romania state thatMr. Mazilu, who hadnot preparedor produced
anythingon the subject entrustedto him,had in 1987become gravely ill;

thathe had hadrepeatedly to go intohospital; thathe had, at his own
request, beenplacedon the retired liso tn grounds ofill-healthfor an
initial periodof one year, in accordancewithRomanianlaw; andthat
retirement had beeenxtended aftehre had been further examinebdy a similar
panel ofdoctors. On the law,Romania expressed tv heew that "the proble mf
the applicationof the General Conventio[ndid]not arisein this case". It
went on to explain,interalia,thatthe Convention "doesnot equate
rapporteurs, whose activities are only occasiw onahlexpertson missions
for theUnitedNations"; that "even if rapporteurs gavensome of the
statusof experts, ... theycan enjoy only functiona immunitiesand
privileges";thatthe "privileges and immunities provb idedhe Convention
beginto applyonlyat the moment when the expertleaveson a journey
connected with the performance ofis mission"; and tha"in thecountryof
whichhe is a national ... an expert enjoyprivileges and immunitio esly in
respectof actual activities ...whichhe performsin connection withhis
mission". Moreover, Romania state edpresslythat itwas opposedto a request
for advisory opinion fro the Courtof any kind in this case. Similar
contentionswere alsoput forwardin thewritten statemenp tresentedby
Romaniato the Court.

On 6 March 1989 theCommissionadopted itsresolution 1989/37

recommendingthat theCouncilrequestan advisory opinion from tC heurt. The
Councilon 24May 1989adopted its resolution1989/75,by which it requested
the Courtto renderan opinion.

The Courthas also beeninformedby the Secretary-Genera of the
following events which hao vecurredsincethe requestfor Advisory Opinion
was made. A reporotn HumanRightsand Youthpreparedby Mr. Mazilu was
circulated as a documentof the Sub-Commission bearing d thee 10 July 1.989;
the text of this reporthad beentransmittedby Mr. Maziluto the Centrefor
HunanRights through variouschannels. On 8 August 1989, the Sub-Commission
decided,in accordance with it practice,to inviteMr. Maziluto participate
in themeetings at which his reportwas to be considered:no replywas
receivedto the invitation extended. By Note Verbale dated5 August1989
fromthe Permanent Missioo nf Romaniato theUnited Nations Offic at Geneva
addressedto thatoffice,the Permanent Mission referrt ed "theso-called
report"by Mr. Mazilu, expresses durprise"thatthe medicalopinions made
availableto the Centre forHumanRights ...have been ignored" and indicated,
interalia,thatsincebecomingil1 in 1987,Mr. Mazilu didnot "possessthe
intellectual capacity necessary forakingan objective, responsibl and

unbiasedanalysisthatcouldserve asthe substance of a report consistent
with the requirement of theUnitedNations". On 1 September 1989t ,heSub-Commission adopted resoluti 1o989/45entitled"The reporton human rights
and youth preparedby Mr. DumitruMazilu"by which, notingthatMr. Mazilu's
reporthad beenpreparedin difficult circumstance and that the relevant
information collected b the Secretary-General appear not to have been
deliveredto him, it invitedhim to present the repori tn personto the
Sub-Commissionat its next session,and also requestet dhe Secretary-General
to continue providinMgr. Maziluwith al1 the assistancehe mightneed in
updatinghis report,includingconsultations with the Centrefor HumanRights.

II. The QuestionLaid beforethe Court (para. 27)

The Court recallsthe termsof the questionlaidbefore it by the
Council. It pointsout that,in his writtenstatement,the Secretary-General
emphasized that the Council'srequest relatedto the applicabilityof Section
22 of the Conventionin the case of Mr. Mazilu,but not to "the consequences
of that applicability,that is .... [thequestionof] what privilegesand
immunitiesMr. Mazilu mightenjoyas a resultof his statusand whetheror not W
thesehad been violated". The Courtmoreovernotes that,duringthe oral
proceedings,the representative of the Secretary-Generaobservedthat it was
suggestive ofthe Council's intentiot nhat,havingreferredto a "difference",
it "thendid not attemptto havethat differenceas a whole resolvedby the
question it addressedto the Court", but"merely addressead preliminary legal
questionto the Court".

III. Competenceof the Courtto nive an AdvisoryOwinion(paras.28-36)

The Court beginsby pointingout thatthe presentrequest foradvisory
opinion is the first request madby theCouncil,pursuantto paragraph 2 of
Article96 of the Charter. It goes on to note that,in accordancewith that
provision,the General Assemblyb,y its resolution89 (1) of 11 December1946,
authorized the Councit o request advisoroypinionsof the Courton legal
questions arisinwgithinthe scopeof its activities. Then,havingconsidered
the question whichis the subjectof the request,the Courttakesthe view,
firstly, that it is a legal questioin that it involvesthe interpretationof *
an international conventio in orderto determineits applicability and,
moreover,that it is a questionarisingwithinthe scope ofthe activities of
the Council,as Mr. Mazilu'sassignmentwas pertinentto a functionand
programmeof the Counciland as theSub-Commission, of whichhe was appointed
specialrapporteur,is a subsidiary organ ofthe Commissionwhich isitselfa

subsidiaryorganof the Council.

As Romaniahas nonethelesscontended that thC eourt"cannotfind thatit
has jurisdictionto give an advisory opinion"in this case,the Courtthen
considersits arguments. Romania claims that,becauseof the reservation made
by it to Section30 of the General Convention,the United Nations cannot,
withoutRomania'sconsent, submit a request for advisoryopinion inrespect of
its differencewith Romania. The reservation, it is said,subordinatesthe
competenceof the Courtto "dealwith any disputethat mayhave arisenbetween
the UnitedNationsand Romania, includinga disputewithin the frameworkof
the advisoryprocedure,"to the consent of the partiesto the dispute.
Romania points outthat it did not agreethat an opinionshouldbe requested
of the Courtin the presentcase. Section30 of the General Conventioprovidesthat:

"Al1differencesarisingout of the interpretatio or
applicationof the presentconvention shalble referredto the
International Cour tf Justice,unlessin any case it is agreed by
the partiesto have recourseto another modeof settlement.If a
difference arisebsetweentheUnited Nations on the one handand a
Memberon the otherhand,a request shalb le made foran advisory
opinionon any legal questioinnvolvedin accordancewith Article 96
of the Charterand Article65 of the Statuteof the Court. The
opinion givenby the Courtshallbe acceptedas decisive by the

parties.''

The reservationcontainedin Romania'sinstrument of accessionto that
Convention iswordedas follows:

"TheRomanianPeople's Republid coesnot consideritselfbound
by the termsof Section30 of the Conventionwhich providefor the
compulsoryjurisdictionof the International Cour tn differences
arising outof the interpretatio or applicationof the Convention;
with respectto the competencoef the International Courin such
differences, thReomanianPeople'sRepublic takes th view that,for
the purposeof the submissioonf any dispute whatsoeveto the Court
for aruling,the consentof al1 the partiesto the disputeis
requiredin every individuaclase. This reservation is equally

applicableto the provisionscontainedin the saidsection which
stipulatesthat theadvisory opinioo nf the International Courts
to be acceptedas decisive."

The Court beginsby referringto its earlierjurisprudence,recalling
that the consentof Statesis not a condition preceden to its competence
underArticle 96 of the Charterand Article65 of the Statuteto give advisory
opinions,although suchadvisory opiniona sre not binding. This applieseven
when the request foarn opinionis seenas relatingto a legal question
pendingbetweentheUnited Nations and a MemberState. The Court thennotes
thatSection30 of the General Conventionoperateson a different plana end in
a different context frt omatof Article96 of the Charteras, when the
provisionsof thatSectionare read in theirtotality, it is clearthat their
objectis to providea dispute settlemen mechanism. If the Courthad been
seisedwith a request foran advisoryopinionmade underSection 30,it would

of coursehave hadto considerany reservatiow nhicha partyto the dispute
had madeto that Section.However, inthe presentcase,the Courtreca1l.s
that the Council'sresolutioncontainedno referenceto Section30 and
considersthat it is evident from th eossier that,in view of the existence
of the Romanianreservation,it was notthe intention of the Councilto i.nvoke
that Section.The Court finds that the reques tas not made underSection30
and that it accordinglydoesnot need to determinethe effectof the Romnnian
reservationto that provision.

Romaniahas, however,contendedinter aliathat

"Ifit were accepted thata Statepartyto the Convention, or
theUnitedNations, might asf kor disputes concerning the
applicationor interpretatioonf the Conventionto be brought before
the Courton a basis otherthanthe provisions of Section30 of the

Convention,thatwould disrupt the unityof the Convention, by
separatingthe substantive provisionfromthsse relating to dispute settlement,whichwouldbe tantamountto a modification of the
contentand extentof the obligationsentered into by Stateswhen
they consentedto be boundby the Convention."

The Court recalls that the natureandpurposeof the present proceedings are

thoseof a request foradviceon the applicabilito yf a part of the General
Convention,and not the bringing ofa dispute before the Court for
determination.It adds that the "contentand extentof the obligations
entered into by States"- and, inparticular, by Romania - "when they
consentedto be boundby the Convention" arn eot modifiedby the request and
by the present advisoro ypinion.

The Court thus findsthat the reservation madbey Romaniato Section30
of the General Conventiondoesnot affectthe Court'sjurisdiction to
entertain the request submitt todit.

IV. Proprietvof the Courtaivinaan Opinion(paras.37-39)

While the absenceof the consentof Romaniato the proceedings befor ehe

Court can have no effecton its jurisdiction, th Courtfinds that this is a
matter to be consideredwhen examiningthe propriety of its givingan
opinion. The Courthas recognizedin its earlier jurisprudence, inter alia,
that in "certain circumstances... the lack of consentof an interested State
may render the givin of an advisory opinion incompatib with the Court's
judicial charactera "nd has observedthat an "instanceof this would bewhen
the circumstances disclosethat to give a reply wouldhave the effectof
circumventing the principt leat aState is not obligedto allow its disputes
to be submittedto judicial settlement without itsconsent". The Court
considers that in the present caseto givea reply wouldhave no such effect.
Certainly the Council in its resolution1989/75,did concludethat a
differencehad arisen between the United Natio and the Governmentof Romania
as to the a~~licabilityof the Convention ...to Mr. DumitruMazilu. It
nonethelessseems to the Courtthat thisdifference, and the questionput to
the Courtin the lightof it, isnot to be confusedwith the dispute between
the United Nationasnd Romaniawith respectto the application of the General
w
Conventionin the caseof Mr. Mazilu. Accordingly, the Court doesnot find
any "compelling reason" torefusean advisory opiniona ,nd decidesto replyto
the legal questionon which such an opinionhas been requested.

V. Meaninnof Article VI, Section22. of the
General Conventio(nparas. 40-52)

The General Conventiocnontainsan ArticleVI entitled"Expertson
Missions for the Unite Nations",divided into two sections. Section 22
providesas follows :

"Experts(otherthan officiaiscomingwithinthe scopeof
ArticleV) performing missions for the United Nations s heall

accordedsuch privilegesand imrnunitieass are necessary fotrhe
independent exercisoef their functionsduringthe periodof their
missions, including the time spe ontjourneysin connectionwith
their missions.In particular,they shall beaccorded: (a) immunityfrompersona1 arreso tr detentionand from seizure of
theirpersona1 baggage;

(b) in respectof words spoken or writteannd actsdoneby them in
the courseof the performanco ef theirmission, immunity from
legal processof everykind. This immunityfrom legalprocess
shallcontinueto be accordednotwithstandint ghat thepersons
concerned areno longer employeo dn missions forthe
United Nations;

(C) inviolabilityfor al1 papersand documents;

(d) for thepurposeof theircommunicationw sith theUnited Nations,

the rightto use codesand to receive papers or correspondence
by courieror in sealed bags;

(e) the same facilities inrespectof currencyor exchange
restrictionsas are accorded to representativeosf foreign
governmentson temporary officia1missions;

(f) the same immunitiesand facilitieisn respectof their persona1
baggageas are accorded to diplomaticenvoys."

The Courtconsidersfirstwhat is meantby "expertson missions"for the
purposesof Section 22 and notesthatthe General Convention givn es
definition of "expertson missions". From Section 22 it is clear,firstly

that the officials ofthe Organization, evei nfchosenin consideration of
theirtechnicalexpertisein a particular field, are not includedin the
categoryof experts within the meaning of thatprovision; and secondlythat
only expertsperforming missionsfor theOrganization are covered by
Section 22. This Sectiondoesnot,however, furnish any indicato ionthe
nature,durationor placeof thesemissions. Nor do the travauxvrévaratoires
provideany more guidance i thisrespect. The Courtfinds thatthe purpose
of Section22 is nevertheless evident,namely,to enabletheUnited Nations to
entrustmissionsto persons whodo not have the status o an officia1of the
Organization ant do guaranteethem "suchprivileges and immunities as are
necessary for the independent exercio setheirfunctions".The Courtnotes
that in practice,accordingto theinformation supplied b the

Secretary-General, tU hneited Nationhas had occasion to entrustmissions
- increasingly variei dn nature- to persons not having the stat ofs
United Nations officials. Suchpersonshave beenentrusted withmediation,
with preparing reportp s,eparingstudies, conducting investigations or
finding andestablishing facts. In addition, many committeec s,mmissionsos
similar bodies whose members serve, not as represento atSteates,but in a
persona1 capacity have been set up withit nhe Organization.In al1 these
cases, the practic of the UnitedNations shows thatthe personsso appointed,
and in particularthemembersof thesecommittees and commissions, have been
regardedas expertson missions within themeaningof Section 22.

The Courtthenturnsits attentionto themeaningof the phrase"during

the periodof their missions, including thetime spenton journeys", whichis
part of that Section.In this connectiot nhe question arises whethe "experts
on missions"are coveredby Section 22 onlyduringmissions requirint gravel
or whether they are als coveredwhen thereis no such travel or apart from
such travel. To answerthis question, the Couc rtnsidersit necessaryto
determinethemeaningof the word"mission"in Englishand mission in French,
the two languagesin which.the General Convention wa adopted. Initially, the
word referredto a taskentrustedto a persononly ifthatpersonwas sentsomewhereto performit. It has howeverlongsinceacquireda broadermeaning
and nowadaysembracesin generalthe tasksentrustedto a person,whetheror
not thosetasksinvolvetravel. The CourtconsidersthatSection 22,in its
referenceto expertsperforming missions for theUnited Nationsu ,ses theword

"mission"in a general sense. Whilesome experts havenecessarily to travel
in orderto perform their tasks, othe can perform them without havitnog
travel. In either case, the intentof Section22 is to ensurethe
independence of such expertsin the interestsof the Organization baccording
them theprivileges and immunitiesnecessary forthe purpose. The Court
accordingly conclude thatSection22 is applicable to every experton
mission, whetheror not he travels.

The Court finally take up the question whether experotsmissionscan
invokethe privileges and immunitiesprovidedfor in Section 22againstthe
Statesof which theyare nationals or on the territoryof whichtheyreside.
In this connection,it notesthatSection 15of the General Convention
providesthat thetermsof ArticleIV, Sections11, 12 and 13, relatingto the

representativeo sf Members,"arenot applicable as betweena representative I
and theauthorities of the Stateof whichhe is a nationalor of whichhe is
or has been the representative"a,nd observesthatArticleV, concerning
officialsof the Organization, andArticleVI, concerning expert on missions
for theUnited Nationsd ,o not containany comparablerule. It findsthat
this differenco ef approachcan readilybe explained: the privilegesand
immunities of Articles Vand VI are conferrewdith a view to ensuringthe
independence of international officiaalsd expertsin the interestsof the
Organization; this independence mbestespectedby al1 States,including
the Stateof nationality and theStateof residence.The Courtnotes,
moreover, that some States partieto the General Conventio have entered
reservations to certainprovisionsof Article Vor of ArticleVI itself,as
regardstheirnationalsor persons habitually reside onttheirterritory.In
its view,the veryfact thatit was feltnecessaryto make thesereservations

confirmsthat in the absenceof suchreservations, expert on missionsenjoy
the privilegesand immunities provided forunderthe General Conventio in
their relationw sith the Statesof whichtheyare nationals or on the
territoryof which theyreside.

To sum up, the Court takes thview thatSection22 of the General
Convention is applicableto persons(otherthanUnited Nations officials)to I
whom a mission has beenentrustedby the Organizationand who aretherefore
entitledto enjoythe privileges and immunitiesprovidedfor in this Section
with a view to the independent exerci ofetheirfunctions; that duringthe
wholeperiodof suchmissions, experte snjoythesefunctional privilege and
immunities whetheo rr nottheytravel; and that thoseprivileges and
immunitiesmay be invokedas against the State ofnationality or ofresidence

unlessa reservation to Section 22 ofthe General Conventiohnas beenvalidly
made by thatState.

VI. Applicabilityof ArticleVI. Section22. of the General Convention
to Special Rapporteurof the Sub-Commissio(nparas. 53-55)

Havingemphasized that th situationof rapporteurs of the Sub-Commission
is one whichtoucheson the legal position of rapporteursin generaland is
thusone of importance for thewhole oftheUnitedNationssystem,the Court
notes thaton 28 March 1947, the Council decidethatthe Sub-Commissio would
be composedof 12 eminentpersons,designated by name,subjectto the consentof their respective national governmena ts,that the membersof the
Sub-Commission,at present25 in nurnber,were subsequentlychosenby the
Commission under similar conditions;it observesthat the Council,in
resolution 1983/32of 27 May 1983,expressly"recall[ed] ...thatmembers of
the Sub-Commission areelectedby the Commission ... as expertsin their
individualcapacity". The Court therefore find that, since theirstatusis
neither thatof a representativo ef a Member Statenor that ofa
United Nations official and sincethey perform independentl for the
Sub-Commission functionscontemplatedin its remit,the membersof the
Sub-Commissionmust beregardedas expertson missions within the meaning of
Section22.

The Court furthernotes that,in accordance with the practice followebdy
many United Nations bodies, tS heb-Commissionhas from timeto time appointed
rapporteurs or specialrapporteurswith the taskof studyingspecified
subjects; it alsonotes that, whiletheserapporteurs or specialrapporteurs
are normally selectef dromamongmembers of the Sub-Commission, ther have
been cases in which specia rapporteurshave beenappointed from outsidethe

Sub-Commission orhave completed their report ona lyter their membership of
the Sub-Commission hadexpired. In any event, rapporteuro sr special
rapporteurs areentrustedby the Sub-Commissiow nith a researchmission. The
Court concludesthat sincetheirstatusis neitherthat of a representative of
a Member Statenor that of a UnitedNationsofficial,and sincethey carryout
such researchindependently on behalfof the United Nations,they mustbe
regardedas expertson missions within the meaningof Section22, even in the
event that theyare not, or areno longer, members of the Sub-Commission.
This leads theCourtto inferthat they enjoy,in accordancewith that
Section,the privilegesand immunities necessaryfor theexerciseof their
functions, andin particularfor the establishmeno tf anycontactewhichmay
be useful for the preparation,the drafting and th eresentationof their
reportsto the Sub-Commission.

VII. Avvlicabilit~of ArticleVI. Section22, of the Generalsonvention
in the Case ofMr. DimutruMazilu (paras.56-60)

The Court observes, inthe lightof the factspresented,thatMr. Mazilu
had, from 13 March 1984 to 29 August1985,the statusof a memberof the
Sub-Commission;that from 29 August1985 to 31 December 1987, he was botha
member anda rapporteur of the Sub-Commission;and finallythat, although
since the last-mentioneddate he has no longerbeen a member ofthe
Sub-Commission,he has remained aspecialrapporteur. The Court findsthat at
no time duringthis periodhas he ceasedto have the statusof an experton
mission within the meaningof Section22, or ceasedto be entitledto erljoy
for theexerciseof his functionsthe privilegesand immunitiesprovidedfor
therein.

The Courtneverthelessrecallsthat doubtwas expressedby Romaniaas to
whetherMr. Maziluwas capableof performinghis task as special rapporteur
afterbeing takenseriouslyil1 in May 1987and beingsubsequently placedon
the retired listpursuantto decisionstakenby the competent medical
practitioners, in accordance withthe applicableRomanianlegislation; that
Mr. Mazilu himselfinformed the United Nationsthat the state ofhis health
did not prevent him frompreparinghis reportor fromgoing to Geneva; and

finallythat,when a reportby Mr. Mazilu wascirculatedas a documentof the
Sub-Commission,Romania caXledin question his "intellectual capacity todraft"a report consisten with the requirements oftheUnitedNations".
Afterpointingout that it is not for it to pronounceon the stateof
Mr. Mazilu'shealth oron its consequenceson theworkhe has doneor is to do
for the Sub-Commissiont,he Court pointsout thatit was for the
United Nationsto decidewhetherin the circumstances it wishedto retain
Mr. Maziluas specialrapporteur and takesnote thatdecisionsto that effect
have been takenby the Sub-Commission.

The Courtis of the opinionthat in thesecircumstancesM,r. Mazilu
continuesto have the statusof special rapporteur thatas a consequenchee
must be regardedas an experton missionwithinthemeaningof Section22 of
the General Conventioannd that thatSectionis accordingly applicabl in the
caseof Mr. Mazilu.

VII. OperativeParanraph(para. 61)

The completetextof the operative varagra~hwill be foundbelow:

"For thesereasons,

THE COURT,

Unanimously,

1s of the opinionthatArticleVI, Section 22,of the Conventionon
the Privilegesand Immunitiesof theUnited Nations is applicablein the
caseof Mr. DurnitrMuaziluas a special rapporteu of the Sub-Commission
on Preventionof Discriminatioannd Protection ofinorities." Annex to PressCommuniaué 89/24

Summarvof Ovinionsavvendedto the
AdvisorvOvinionof the Court

SevarateO~inionof Judae Oda

Judge ODAexpressedsome doubts as to whetherthe Court, by simply
givingthe answeras statedin the Court'sOpinion,had adequately
respondedto what ECOSOC hadin mindwhen formulating its reques for an

advisoryopinion. The wayin whichthe requestwas actually frameg dave
scope,in his view,to certainpronouncemento sn themodalitiesof the
applicationof Section 22 of the Convention.

He reconstructed the backgrou todthe request foran advisory
opinionin a slightly differentmannerfromthatadopted by the Court in
accordancewith hisview thatgreater emphasic souldhave beenlaidupon
certain factsseen as more directly relevanto the subject-matteorf the
opinion sought; whiltehe Courthad not beenaskedto give a general
opinionon the rangeof privileges and immunitiesenjoyedby a Special
Rapporteur, the questionput by ECOSOCdid implysome requirementof
attentionto the materialconsequences of Mr. Mazilu'sentitlementto the
benefitsof Section 22 of the Convention.

In JudgeODA'sview,the Courtdid not focussufficiently upon the

essentialaspectsof the concrete case of Mr. Mazilu,includingthe fact
thathe was unableto receive documentatio from,enter into contact
with, or beapproached by theUnited Nations Centre fH ornanRightsin
Geneva,and was preventedby his Governmentfrom travellintgo Genevafor
consultationwsith the United NationCsentre. Thoseaspects were
fundamental to the caseof Mr. Mazilu,whichthe Court hadbeen askedto
look into.

In his conclusion,JudgeODA statedthatthe finalparagraphof the
Opinioncouldhave beenslightlyexpanded. It shouldhave stated more
explicitly: firstly,thata Special Rapporteu of the Sub-Commission
fallswithinthe category of "Expertson Missionfor the UnitedNations";
secondly,thatMr. Maziluwas, at the timeof the request for the opinion
by the ECOSOC,a SpecialRapporteur of the Sub-Commission antdhathe

stillexercisesthat functionand, finally, that Mr. Mazilu was, inthe
interestof the United Nations entitledto receive fromal1 partiesto
the Conventionon the Privileges and Immunitioesthe United Nations,
includinghis national State,al1 facilitieswithintheir power fot rhe
fulfilmentof his mission. If the Courthad madesuch a pronouncement,
it wouldusefully have drawnattentionto thenecessityof allowing
Mr. Maziluunimpeded communicatiw onth and accessto theUnited Nations
Centrefor HunanRights.SevarateOvinionof Jud~eEvensen

In the requestof ECOSOCthe Courtwas askedto examine"the legal
questionof the applicabilityof Article VI,Section 22,of the
Conventionon the Privilegesand Immunities".The Courtwas not
requestedto express itselfon concrete violationsf theseprovisions.
But it seems evident thathe pressues complainedf havecausedconcern
and hardshipnot only to Mr. Mazilu butalso to his family. The
protectionprovided forin Article VI,Section 22, ofthe 1946 Convention
cannotbe confined onlyto the "expertMazilu" but musto a reasonable
extentapply to his familyas well.

The integrityof aperson'sfamily and family lifis a basichuman
right protected byprevailingprinciplesof internationalaw which
derivenot only from conventionainternationallaw or customary
internationallaw but from"generalprinciplesof law recognizedby
civilizednations".

Thus in the Universal Declaratinf HumanRightsadoptedby the
UnitedNationsGeneral Assembly on 10 December 194the integrityof
familyand familylifewas laid down asa basichuman rightin
Article16, paragraph3, which States: "The family is thnaturaland
fundamental group uniotf societyandis entitledto protectionby
society andthe State."

The respect for aerson'sfamilyand familylife mustbe considered
as integralparts of the "privileges and immunities" taretnecessary
for theindependent exercisoef the functionsof United Nations experts
underArticle VI, Section22, of the 1946 Conventioon Privilegesand
Immunities.

SevarateO~inionof Judne Shahabuddeen

In hisseparateopinion,JudgeShahabuddeen dealwtith the
competenceof the Court to determine questiosf priorityin the hearing
of cases. As to theRomanianreservation, in his viewthis did not
-
because,for reasonswhichhe gave, it couldnot apply to the latter. As

to the questionof Mr. Mazilu'sstate of healthhe thoughtthatRomania
was takingthe positionthat illnessdisabledMr. Mazilu fromfunctioning
and so disentitledhim to any of the privileges aimmunities(these
being functionallbyased)and that the determinatiof his state of
health lay withinRomania'sexclusivedomesticjurisdiction.Judge
Shahabuddeen, however,onsideredthat the exclusivenessf that
jurisdictionwas qualified byRomania'sobligationunder the
Convention. Finally,he gave his reasons for holdighat an experton
specificpurposeof commencinga journeyin connectionwith hismission.