1
INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel.(31-70-302 23 23). Cables: lntercourt., The Hague.
Telefax (31-70-364 99 28). Telex 32323.lntemet address: http: // www.icj-cij.org
Communiqué
unofficial
forimmediaterelease
No. 98/27
12August 1998
Difference relatingtoirnmunity from legal proeess
of a Special Rapporteur of the Commission on Human Rights
Request for an advisory opinion
Order organizing the proceedings
THE HAGUE, 12August 1998. Following the requestby the Economie and Social Council
• ofthe United Nations (ECOSOC) for an advisory opinion from the International Court of Justice
(ICJ) on a difference between the United Nations and the Governmentalaysia, Judge Shigeru
Oda, the Senior Judge, acting President of the Court, made an Order organizing the proceedings.
In thatOrder, dated 10 August 1998,the Senior Judge decided that the United Nations and
the States parties to the Convention on the Privileges and Immunities of the United Nations
(the interpretation or application of which is the source of the difference) were likely to furnish
informationon the question submitted ta the Court. He fixed 7 October 1998 as the time-limit
within which written statements on the question may be submitted to the Court and
6 November 1998as the time-limitwithin which States and organizations having presented written
statements may submit written comments on other written statements. The subsequent procedure
bas been reserved for further decision.
The present case relateso Mr. Data' Param Cumaraswamy, a Malaysian jurist who was
appointed Special Rapporteur on the independence of judges and lawyers in 1994 by
the Commission on Human Rights, an organ of ECOSOC.
According to a note addressed to ECOSOC by the UN Secretary-General, Mr. Kofi Annan,
on 28 July 1998, Mr. Cumaraswamy currently faces four lawsuits filed in Malaysian courts by
different plaintiffs for damages in a total amount of 112million US dollars following an interview
that he gavein November 1995 to International Commercial Litigation, a magazine published in
the United Kingdom but also circulated in Malaysia. In that interview, he commented on certain
litigations that bad been carried out in Malaysian courts. The plaintiffs assert that the words of
Mr. Cumaraswamy were defamatory.
After the first lawsuit was filed, theegal Counsel, Mr. Hans Corell, acting on behalf
of the Secretary-General, considered the circumstances of the interview and of the controverted
passagesof the article and determined that Mr. Cumaraswamy had spoken in his official capacity
as Special Rapporteur. He stated that accordingly, by virtue of Section 22 of Article VI of the
Convention on the Privileges and Immunities of the United Nations, Mr. Cumaraswamy was
immune from legal process. On 15 January 1997, the Legal Counsel sent a Note Verbale to
the Permanent Representative of Malaysia to the United Nations, requesting the competent
Malaysian authorities"to promptly advise the Malaysian courts of the Special Rapporteur's
immunity from legal process". On 7 March 1997, the Secretary-General issued a note confirming that "the words which
constitute the basisof plaintiffs' complaint in this case were spoken by the Special Rapporteur in
the course of his mission" and that he was "immune from legal process with respect thereto".
Identical certificatesfthe Special Rapporteur'simmunitywere issued laterwhen new lawsuits were
filed. According to the Secretary-General however, these notes did not lead to any appropriate
intervention in the Malaysian courts by the Malaysian Govemment to ensure respect for
Mr. Cumaraswamy 's immunity, nor were they taken into account by these courts.
Considering that a difference bad arisen between the United Nations and the Govemment of
Malaysia with respect tothe immunityfrom legal processofMr. Cumaraswamy, on 5 August 1998,
ECOSOCadopted a resolution requestingthe Court togive, on a priority basis, an advisoty opinion:
"onthe legal question of the applicability of Article VI, section 22, of the Convention on the
Privileges and lmrnunities of the United Nations in the case of Dato'Param Cumaraswamy
as Special Rapporteur of the Commission on Human Rights on the independence of judges
and lawyers, taking into accountthe circumstances set out in paragraphs 1 to 15 of the note
by the Secretary-General, and on the legal obligations of Malaysia in this case".
The request for an advisory opinion was received in the Registry of the Court
on 10 August 1998 by telefax from the UN Secretary-General. The Govemment of Malaysia bas
already indicated that it did not opposethe submission of the matter to the Court and that it would
make its own presentations to the ICJ.
Website of the Court: http://www.icj-cij.org
lnfonnation Office
Mr. Arthur Witteveen, Secretary of the Court (tel: 31-70-302 2336)
Mrs. Laurence Blairon, Information Officer (tel: 31-70-302 2337)
E-mai1address: [email protected]
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion - Order organizing the proceedings