INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Te1.(31-70-302 23 23). Cables: Intercourt, The Hague.
Telefax (31-70-364 99 28). Telex 32323. Internet address: http: // www.icj-cij.org
Communiqué
unofficial
for immediate release
No. 98/26
10 August 1998
Lawsuits filed in Malaysian courts against the Special Rapporteur
of the UN Commission on Human Rights on the independence
of judges and lawyers
The UN Economie and Social Council requests the Court
to give an advisocy opinion
THE HAGUE, 10 August 1998. On 5 August 1998, the Economie and Social Council
(ECOSOC), one of the six principal organs of the United Nations, requested the International Court
of Justice (ICJ) to give an advisory opinion on a difference which bas arisen between the
Organization of the United Nations and the Govemment of Malaysia out of the interpretation or
application of the Convention of 13 February 1946on the Privileges and Immunities of the United
Nations.
That convention is inter alia designed to protect varions categories·ofpersons at the service
of the UN, including "Experts on Mission", from ali types of interference by national authorities.
The present case relates toMr. Date' 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 on 28 July 1998 to ECOSOC by the UN Secretary-General,
Mr. Kofi Annan, Mr. Cumaraswamy currently faces four lawsuits filed in Malaysian courts by
different plaintiffs for damages a total amount of 112 million US dollars following an interview
that he gave in November 1995 toInternational Commercial Litigation, a magazine published in
the United Kingdom but circulated also in Malaysia. In that interview, he commented on certain
litigations that bad been carried out in Malaysian courts. The plaintiffs, among which commercial
companies and a lawyer mentioned in the interview, assert that they were defamed by the words
of Mr. Cumaraswamy.
After the first lawsuit was filed, the UN Legal Counsel, Mr. Hans Coreli, acting on behalf
of the Secretary-General, considered the circumstances of the interview and of the controverted
passages of the article and detennined that Mr. Cumaraswamy bad 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 Pennanent 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 confinning that "the words which
constitute the basisf plaintiffs' cornplaint 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".
ldentical certificates of the Special Rapporteurs immunity were issued laterwhen new lawsuits werefiled. According to the Secretary-General however, these notes did not lead to any appropriate
intervention in the Malaysian courts of the Malaysian Government to ensure respect for
Mr. Cumaraswamy 's immunity, nor were they taken into account by these courts.
On 7 November 1997, Mr. Annan advised the Prime Minister of Malaysia that a difference
might have arisen between the United Nations and the Govemment of Malaysia, and about the
possibility of resorting to the International Court of Justice. He then appointed a Special Envoy,
Maître Yves Portier of Canada, who undertook two official visits to KualiJ.Lumpur to reach either
a negociated settlement or a joint submission to the Court. During his last visit,
from 25 to 28 July 1998, Mr. Fortier concluded that the Government of Malaysia was not going
to participate in any of these efforts and recommended that the matter should be referred to
ECOSOC to request an advisory opinion from the Court.
Section 30 of the Convention on the Privileges and lmmunities of the United Nations
provides that if a difference arises between the United Nations on the one band and a Member State
on the other band, a request shall be made for an advisory opinion to the ICJ. The opinion given
shall be accepted as decisive by the parties.
Accordingly, ECOSOC adopted on 5 August 1998 a resolution calling for the Court to give,
on a priority basis, an advisory opinion:
"on the legal question of the applicability of Article VI, section 22, of the Convention on the
Privileges and Immunities of the United Nations in the case of Data' Param Cumaraswamy
as Special Rapporteur of the Commission on Human Rights on the independence of judges
and lawyers, taking into account the circumstances set out in paragraphs 1 to 15 of the note
by the Secretary-General, and on the legal obligations of Malaysia in this case".
The request for an advisory opinion was received on 10 August 1998 by telefax from
the UN Secretary-General to the Registry of the Court. The Govemment of Malaysia bas already
indicated that it did not oppose the submission of the matter to the Court and that it would make
its own presentations to the ICJ.
In his note of28 July 1998, Mr. Annan stated that he considered it "most important" that the
principle be accepted that it is for the Secretary-General atone to determine, with conclusive effect,
whether an expert on mission bas spoken or written words or performed an act in the course of his
miSSIOn. He contended that if national courts were to determine whether an expert enjoys
immunity, this "would be certain to have a negative effect on the independence of officiais and
experts, who would then have to fear that at any time, whether they are still in office or after they
bad left it, they could be called to account in national courts, not necessarily their own, civilly or
criminally, for their words spoken or written or acts performed as officiais or experts".
ECOSOC was authorized in 1946 by the UN General Assembly to request advisory opinions
of the Court on legal questions arising within the scope of its activities. lt is the second time that
the Council makes use of this authorization.
Website of the Court: http://www.icj-cij.org
Information Office:
Mr. Arthur Witteveen, Secretary of the Court (31-70-302 2336)
Mrs. Laurence Blairon, Information Officer (31-70-302 2337)
E-mail: information@icj-cij .org
Lawsuits filed in Malaysian courts against the Special Rapporteur of the UN Commission on Human Rights on the independence of judges and lawyers - The UN Economic and Social Council requests the Court to give an advisory opinion