INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 K.JTheHague. Tel.(31-70-302 23 23). Cables: Intercourt, The Hague.
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Communiqué
unofficial
forimmediaterelease
No. 99116
29 April 1999
Difference Relating to lmmunity from Legal Process
of a SpeciaiRaoporteurof the Commission on Human Rights
Court says that Mr. Cumaraswamv is entitled to immunity from legal process
for the words spoken by him during an interview
THE HAGUE, 29 April 1999. The International Court of Justice (ICJ) today handed down its
Advisory Opinion on the request of the Economie and Social Council (ECOSOC), one of the six
• principal organs the United Nations, in the case conceming the Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission on Human Rights.
The Court was of the opinion, by fourteen votes to one, that Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations was "applicable" in the case of
Dato' Param Cumaraswamy, a Malaysian jurist who was appointed Special Rapporteur on the
Independencef Judges and Lawyers by the United Nations Commission on Human Rinh1994,
and that he was "entitled to immunity from legal process of every kind for the words spoken by him
during an interview as published in an article in the November 1995 issue of International Commercial
Litigation".
Mr. Cumaraswamy currently faces severallawsuits filed in Malaysian courts by plaintiffs who
assert that used defamatory language in the interview and seek damages in a total amount of
US$ 112 million.However, according to the United Nations Secretary-General, Mr. Kofi Arman,
Mr. Cumaraswamy spoke in his official capacity of Special Rapporteur and was thus immune from
legal process virtue of the above-mentioned Convention .
• ECOSOC, of which the Commission on Human Rights is a subsidiary organ, requested an
advisory opinion on the issue from the in August 1998, after efforts by the Secretary-General
to ensure respect for Mr. Cumaraswamy's immunity bad not, in his view, achieved the desired result.
In its Advisory Opinion, the Court held that the Govemment of Malaysia should have informed
the Malaysian courts the finding of the Secretary-General and that these courts should have dealt
with the question of immunity as a preliminary issue to be expedîtiouslltunanimously
stated that Mr. Cumaraswamy should be "held .financially harmless for any costs imposed upon him
by the Malaysian courts, in particular taxed
The Court also found, by thirteen votes to two, that the Government of Malaysia now had "the
obligation to communicate [the] advisory opinion to the Malaysiinorder that Malaysia's
international obligations be given effect.] Cumaraswamy's immunity be respected".
Although advisory opinions giveny the Court are not generally binding, Article VIII,
Section 30, of the above-mentioned Convention provides that those rendered in the event of a
difference between the United Nations and a member State "shall be accepted as decisive by the
parties".li proceedings in the Malaysian courts have been stayed pending receipt of the opinion. - 2 -
Reasoning of the Court
The Court first states that ECOSOC's request for an advîsory opinion meets the conditions set
out in the Statute. The question asked is a legal one and it falls within the scope of the ·activities of
ECOSOC. The Court thus has jurîsdiction to answer it.
The Court then recalls that a special rapporteur who is entrusted with a mission for the United
Nations must be regarded as an expert on mission within the meaning of Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations. It observes that Malaysia bas
acknowledged that Mr. Cumaraswamy is an expert on mission and that such experts enjoy the
privileges and immunities provided for under the Convention their relations with States parties,
including those of which they are nationais.
The Court goes on to consider whether the immunity applies to Mr. Cumaraswamy in the
specifie circumstances of the case. It points out that the Secretary-General, as the chief adrninistrati ve
officer of the United Nations, bas the primary responsibility and authority to assess whether its agents,
including experts on mission, acted within the scope of their fonctions and, where he so conciudes, to
protect these agents by asserting their immunity. In doing so, the Secretary-General, in accordance
with the provisions of the above-mentioned Convention, protects the mission with which the expert is
entrusted. TheCourt observes that, in the present case, the Secretary-General was reinforced in his
view that Mr. Cumaraswamy bad spoken in his official capacity by the fact that he was referred to
several times in the article in Internationalal Litigation in bis capacity as Special Rapporteur
and that, in 1997, the Commission on Human Rights bad extended his mandate for another three years,
thereby acknowledging that he bad not gone beyond his functions by gîving the interview.
Turning to Malaysia's legal obligations, the Court states that, when national courts are seised of
a case in which the immunity of a United Nations agent is in issue, they should immediately be
notifiedf any finding by the Secretary-General and give that finding the greatest weight. Questions
of immunity are preliminary issues which must be expeditiously decided by national courts in limine
litis (at the very outsethe proceedings). Since the conduct of any organ of a State, including its
courts, must be regarded as an act of that State, the Court concludes that the Govemment of Malaysia
did not act in accordance wîth its obligations under international law in the present case.
Composition of the Court
The Court was composed asfollows: President Schwebel; Vice-President Weeramantry; Judges
•
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Veresbchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina.
Vice-President Weeramantry, Judges Oda and Rezek appended separate opinions to the Advisory
Opinion. Judge Koroma appended a dissenting opinion.
A summary of the Advisory Opinion is given in Press Communiqué No. 99/16bis to which a
summary of the opinions îs annexed. The full text of the Advisory Opinion, the opinions and the Press
Communiqués are available on the Court's website (http://www.icj-cij.org).
Information Office:
Mr. Arthur Witteveen, Secretary of the Court (t31-70~ 23330)2
Mrs. Laurence Blairon, Information Officer (tel:70-302 2337)
E-mail address: [email protected]
Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights - Court says that Mr. Cumaraswamy is entitled to immunity from legal process for the words spoken by him during an interview