Summary of the Advisory Opinion of 29 April 1999

Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document

DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS OF A

SPECIAL RAPPORTEUR 017 THE COIMMISSIONON HUMAN RIGHTS

Advisory opinion^ of 29 April 1999

'I'heCourt handed down its advisory opinion on the SpecialRapporteurof the Conimissionon Human Rights

request of the Economic and Social Council (ECOSOC), on the Independenceof Judges and Lawyers;
one of the six principal organs of the Unitedtions,in the IN FAVOUR: President Schwebel; Vice-President
case concerning the ~iff&renceRelating to Immunity from Weeramantry; Judges Oda, Bedjaoui, Guillaume,
Legal Process of a Spedal Rapporteur of the Commission Ranjeva, Herczegh. Shi, Fleischhauer, Vereshchetin,
on Human Rights. Higgins,Parra-Aranguren,Kooijmans,Rezek;

'I'heCourt was of the opinion, by fourteen votes to one, AGAINST:JudgeKoroma;
that Article VI, Section 22, of the Convec.tion on the (b) By fourteenvotes to one,
Privileges and Iminunities of the United I\Jations was That Dato' Parain Cuinaraswamy is entitled to
"applicable" in the case of Dato'Param Cumaraswamy, a
Mala.ysianjurist who was iippointedSpecial Rapporteur on immuilityfrom legal processof every kind for the words
the Independence of Judges and Lawyers by the United spoken by him during an interview as published in an
Nations Commissionon Human Rights in 1994.,and that he article in the November 1995 issue of blterilcrtioilcrl
Co~izn~ercialitigation;
was "entitled to immunity hom legal process of every kind IN FAVOUR: President Schwebel; Vice-President
for the words spoken by him during an i.nterview as
published in an article in. the November 1995 issue of Weeram'antry; Judges Oda, Bedjaoui, Guillaume,
btternational Comntercial1,itigation". Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,
In its Advisory Opinion. the Court held that the Higgins,Parra-Aranguren, Kooijnians,Rezek;
AGAINST:Judge Koroma:
Government of Malaysia should have in.formed the
Malaysian courts of the finding of the Secretary-General (2)(a)By thirteenvotes to two,
and that these courts shoultl have dealt with the question of That tlie Governmentof Malaysia had tlie obligation
immi~nity as a preliminary issue to be expeditiously to inform the Malaysian courts of the finding of the
decided. It unanimously stated that Mr. Cumaraswamy Secretary-General that Dato'Param Cumaraswainy was
should be "held financially harmless for any costs imposed entitledto immunity fronilegalprocess;
upon him by the Malaysian courts, in particular taxed
IN FAVOUR: President Schwebel; Vice-President
costs". Weeramantry; Judges Bedjaoui, Guillaunie, Ranjeva,
The Court also found, by thirteen votes to two, that the Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,
Government of Malaysia now had "the obligation to Parra-Aranguren,Kooijmans,Rezek;
comrnunicate [the] advisory opinion to the Malaysian AGAINST:Judges Oda,Koronia;
courts, in order that Malaysia's international obligationsbe
given effect aiid [Mr.] Cumaraswamy's immunity be (b) By fourteenvotesto one,
That tlie Malaysiancourts had the obligation to deal
respected". with the question of iininuiiity froin legal process as a
The Court was conlposed as follows;: President prelimiiiary issue to be expeditiously decidiitlimine
Schwebel: Vice-President Weeramantry: Ji~dges Oda,
Bedjaoui,Guillaume.Ranjava, Herczegh, Shi, I;leischhauer, litis;
Koroma, Vereshchetin, Higgins, Pamt-Aranguren, IN FAVOUR: President Schwebel; Vice-President
Weeramantry; Judges Oda, Bedjaoui, Guillaurne,
Kooijmans,Rezek;RegistrarValencia-Ospina. Ranjeva, Herczegli, Shi, Fleischhauer, Vereshchetin,
Higgins,Parra-Aranguren,Kooijmans,Rezek;

AGAINST: Judge Koroina;
(3) Unanimously,
The full text of the final paragraph of the opinion reads That Dato' Parain Cuinaraswamy shall be held
as follows: financiallyharmless forally costs imposed uponhitn by
"67. For thesereasons,
the Malaysiancourts,inparticulartaxed costs;
The Court (4) Bythirteenvotesto two,
Is of tlzeopiition: That tlie Goverilunentof Malaysia has the obligation
(1) (a) By fourteenvotes to one, to comniunicate this advisory opinion to the Malaysian

That Article VI, Section22, of the Conventionon the courts, in order that Malaysia's international obligations
Privileges and Iminunities of the United Nations is be given effect and Dato' Paran1 Cuinaraswamy's
applicable in the case of Dato' Param Cumiiraswamyas imniunitybe respected; IN FAVOUR: President Schwebel; Vice-President advisory opinion of the InternationalCoui-tof Justice,
Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, which shallbe acceptedas decisiveby the parties."
Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Ellclosed with the letter of transmittal of the Secretary-
Parra-Aranguren,Kooijmans, Rezek; General was a note by him dated 38 July 1998and entitled
AGATNST:JudgesOda,Koronia." "Privileges andImmunities of tlie SpecialRappostcurof the
Comrnission on Human Rights on the Independence of

Judges and Lawyers" (El1998194)and an addendum to that
note.
Vice-PresidentWeeratnantryand Judges Oda and Rezek A:fteroutlining the successive stages of the proceedillgs
(paras. 249, the Court observes that in its decisioil
appended separate opinions to the Advisory Opinion of the 19981297,the Councilasked the Court to take into account,
Court.Judge Koroma appendeda dissentingopinion. for purposes of the advisory opinion requested, the

"circun~stancesset out inparagraphs 1 to 15of the note by
the Secretary-General" (El1998194). The text of those
paragraphsis then reproduced.They set out the following:
In 1946, the General Assembly adopted, pursuant to
Review of the proceedings and sziinmuryoffacts Article 105 (3) of the Charter, the Convention on the
(paras. 1-21) Privileges and Iminuilities of the United Nations (the
The Courtbegins by recalling that the questionon which
Convention), to which 137 member States have become
it has been requestedto give an advisory opinion is set forth parties and provisions of which have been incotyorated by
in decision 19981297 adopted by the United Nations reference intoInallyhundreds of agreements relating to the
Economic and Social Council (hereinafter called the United Nations and its activities. TheCollvention is, inter
"Council") on 5 August 1998.Decision 19981297reads as alia, designed to protect various categories of persons,
follows: including "Experts on Mission for the United Nations",
"TheEcono~nicandSocial Cozrncil, from all types of interference by national authorities. In
particular, Section 22 (b) of Article VI of theonveiltion
Havingconsideredthe note by the Secretary-General
on the privileges and immunities of the Special provides:
Rapporteur of the Commissionon Human Rights on the "Section22: Experts (other than officials comiilg within
independenceofjudges and lawyers,' the scope of Article V) perfomling n~issions for the
United Nations shall be accorded such privileges and
Corwideritrgthat a difference has arisen betweenthe immunitiesas are necessary for the independentexercise
United Nations and the Governmentof Malaysia,within of' their functions during the period of their missions,
the meaning of Section 30 of the Convention on the
Privileges and Immunities of the United Nations, with including tiine spent on journeys in connection with
respect to the immunity from legal process of Dato' theirn~issions.In particularthey shallbe accorded:
Param Cumaraswamy, the Special Rapporteur of the (b) in respect of words spoken or written and acts
Commission on Human Rights on the independence of done by them in the course of the perfolmance of their
mission? immunity from legal process of every kind.
judges and lawyers,
Recalling General Assemblyresolution 89 (I) of 11 This immunity from legal process shall continue to be
December 1946, accordednotwithstandingthat the persons concenied are
1. Requests on a priority basis, pursuant to Article no longer employed on n~issions for the United
Nations."
96, paragraph 2, of the Charter of the United Nations In its AdvisoryOpinionof 14December 1989(in the so-
and in accordance with General Assembly resolution called ''Muzil~case),the InternationalCourt of Justice held
89 (I), an advisory opinion from the International Court
of Justice on the legal question of the applicability of thata Special Rapporteur of the Subco~nmissionon the
Article VI, Section 22, of the Convention on the Prevention of Discriminatioil and Protection of Minorities
Privileges and Immunities of the United Nations in the of the Colnmission on Human Rights was an "expert on
case of Dato' Param Cumaraswamy as Special mission" within the meaning of Article VI of the
Rapporteur of the Commission on Human Rights on the Convention.
The Commission on Human Rights in 1994 appointed
independenceofjudges and lawyers, taking into account
the circumstances set out in paragraphs 1 to 15 of the Dato' Param Cumaraswamy, a Malaysian jurist, as the
note by the secretary-~eneral', and on the legal Commission's Special Rapporteuron the Independence of
obligationsof Malaysiain this case; Judges and Lawyers. His mandate consists of tasks
2. Calls uponthe Governmentof Malaysiato ensure including, inter alia, to enquire into substantial allegations
concerning, and to identify and record attacks on, the
that alljudgements and proceedings in this matter in the independence of the judiciary, lawyers and court officials.
Malaysian courts are stayed pending receipt of the Mr. Cumaraswamy has subrnittcd four reports to the

Comrnissioilon the executionof his mandatc.Afterthe third
report containing a section onhc litigation pending againsthim i.nthe Malaysian civil courts,tlie Commissi.on,in April the immunityhe claims", in part becauseshe considered that
1997,renewedhis mandate Foran additionalthree years. the Secretary-General's note was merely "an opinion" with
scant probative value and no binding force upon the court
As a result of an ai-ticlepublished on tlie basis of an and that the Minister for Foreign Affairs' certificate"would
interview which the Special Rapporteur gave toa magazine
(International Cornliiercial Litigation) in November 1995, appear to be no more thana bland statement asto a state of
two commercial cotnpanie:; in Malaysia asserted that the fact pertaining to the Defendant's statusand mandate as a
said article contained defarnatory words that had"brought Special Rapporteur and appears to have room for
them into public scandal, odium and contenlpt". Each interpretation". The Court ordered that the Special
company fileda suit against him for damages amountingto Rapporteur's motion be dismissedwith costs, that costs be
taxed and paid forthwith by him and that he file and serve
M$ 30 niillion (approxitnately US$ 12 million each),
"including exetiiplarydamages forslander". his defence within 14 days. On 8 July, the Court of Appeal
Acting on behalf of the Secretary-General, the Legal dismissed Mr. Cmnaraswamy's motion for a stay of
Counselof the United Nations consideredthe circutlistances execution.
of the interview and of t11.econtroverted passages of the In July 1997,the Legal Counsel calledon the Malaysian
Government to intervene in the current proceedings so that
article anddeterminedthat :Data'Paratn Cumaraswamywas the burden of any further defence, including any expenses
intei-viewedin his official capacityas Special Rapporteur on
the Independence of Judges and Lawyers. that tlie article and taxed costs resulting therefrom, could be assumed by
clearly referred to his United Nations capacity and to the the Government; to hold Mr. Cumaraswamy harmless in
Speci.al Rapporteur's global mandate to investigate respect of the expenseshe had already incurred or that were
allcgi~tionsconcerning the independenceof thejudiciary and being taxed to him in respect of the proceedingsso far; and,
that tliequoted passages related to such al1ega:iions.On 15 soas to prevent the accumulationof additional expenses and
costs and the further need to submit a defence until the
January 1997, the Legal Counsel, in a note verbale, matter of his immunity was definitively resolved between
"requested the competelitMalaysian authorities to promptly
advise the Malaysian courts of the Special liapporteur's the UnitedNations and the Government,to supporta motion
immunityfroin legal process" with respect to that particular to have the High Court proceedings stayed until such
complaint. On 20 January 1997, the Special Rapporteur resolution. The Legal Counsel referred to the provisions for
filed an application in thelighCourt of Kuala Lumpur(the the settlement of differences arising out of the interpretation
trial court in which the suit had been filed) to set aside and application of the 1946 Convention that might arise
betweenthe Organizationand a member State,which are set
and/or strike out the plaintiffs' writ,on the ground that the
words that wcre the subject of the suitshad been spoken by out in Section 30 of the Convention, and indicated thatif the
him in the course of perforlning his mission fclrthe United Government decided that it could not or did not wish to
Nations as Special Rapporteur on the Itidependence of protect and to hold harmless the Special Rapporteurin the
Judgl:~and Lawyers. The Secretary-General issued a note indicated manner, a difference within the meaning of those
on 7 March 1997 confirming that "the words which provisions might be considered to have arisen between the
cons1:itutethe basis of plaintiffs' complaint in this case wereOrganizationand the Governmentof Malaysia.

spoken by the Special Rapporteur in the course of his Section 30 ofthe Conventionprovidesas follows:
nlission" and that the Secretary-General "therefore "Section 30: All differences arising out of the
maintains that Dato' Param.Cumaraswamyis illlmunefrom interpretation or application of the present convention
legal process with respect thereto". The Special Rapporteur shall be referred to the International Court of Justice,
filed this note in suplport of his above-mentioned unless in any case it is agreed by the parties to have
application. recourse to another mode of settlement. Tfa difference

In spite of representations that had been 111adeby the arises between theUnited Nationson the onehand and a
Office of Legal Affairs,a certificate filed byhe Malaysian Member on the other hand,a request shall be made for
Minister for Foreign Affai.rswith the trial court failed to an advisory opinion on any legal question involved in
refer inany way to the liote that the Secretary-Generalhad accordancewithArticle 96of the Charter and Article65
issued a few days earlierand that had inthe meantime been of the Statute of the Court. The opinion given by the
filed with the court, nordi.dit indicate that in this respect, Court shall be acceptedas decisiveby theparties."
i.e., in deciding whether particular words 01-acts of an
On 10 July, yet another lawsuit was filed against the
expert fellwithinthc scopeof his mission, thecletern~ination Special Rapporteur. On 11 July, the Secretary-General
could exclusively be made by the Secretary-General, and issued a note corresponding to the oneof 7 March 1997and
that such determinationhad coiiclusiveeffect iindtherefore also cominunicateda note verbale with essentially the same
had .tobe accepted as such by tliecourt. In spite of repeated text to the Permanent Representative of Malaysiawith the
requests by the Legal Counsel, the Minister for Foreign request that it be presented formally to the competent
Affairs refused to amend his certificate or to s.upplementit
Malaysian court by the Government. On23 October and 21
in the mannerurged by the UnitedNations. November 1997. new plaintiffs filed third and fourth
On 28 Julie 1997,tlie competentjudge of tlie Malaysian lawsuits against the Special Rapporteur. On 27 October and
1-Tigl.1OLII-fIor K~illil L~111llxcriicluded that she was 32 November 1997. the Secretary-General issued identical
"unable to hold that the Defendantis absolutelyprotcctedby certiiicatesof the SpecialRapporteur'siiiinlunity. On 7 November 1997,theSecretary-Generaladvised the The Court bpower to give an advisor;^ opitzioiz
Prime Minister of Malaysia that a difference might have (paras. 22-27)
arisen between the United Nations and the Government of
Malaysia and about the possibility of resorting to the The Court begins by observing that this is the first time
International Court of Justice pursuant to Section 30 of the that theCourt has received a request for an advisoryopinion
Convention. Nonetheless on 19 February 1998,the Federal that refers to Article VIII, Section 30, of the General
Convention,quotedabove.
Court of Malaysia denied Mr. Cumaraswamy's application This section provides for the exercise of the Court's
for leave to appeal stating that he was neither a sovereign advisory function in the event of a difference between the
nor a full-fledgeddiplomatbut merely"an unpaid,part-time
provider of information". United Nations and one of its Members. The existence of
The Secretary-Generalthen appointed a Special Envoy, such a differencedoes not change the advisorynature of the
Maitre Yves Fortier of Canada,who, after two officialvisits Court's function, which is governedby the terms of Article
96 of the Charter and Article 65 of the Statute.A distinction
to Kuala Luinpur, and after negotiations to reach an out-of- should thus be drawn between the advisory nature of the
court settlement had failed, advised that the matter should Court's task and the particular effects that parties to an
be referred to the Council to request an advisory opinion existing dispute may wish to attribute, in their mutual
from the lnternational Court of Justice. The UnitedNations
had exhausted all efforts to reach either a negotiated relatio1.1~. an advisory opinion of the Court. which, "as
settlement or a jointsubinission through the Council to the such, ...has no binding force". These particular effects,
International Court of Justice. In this connection, the extraneousto the Charter and the Statute which regulate the
functioning of the Court, are. derived from separate
Government of Malaysia had acknowledged the agreements; in the present case Article VIII, Section 30, of
Organization's right to refer the matter to the Council to the General Convention provides that "[tlhe opinion given
request an advisory opinion in accordance with Section 30
of the Convention, advised the Secretary-General's Special by the Court shall be accepted as decisive by the parties".
Envoy that the UnitedNations should proceed to do so, and That consequence has been expressly acknowledgedby the
indicated that, while it would make its own presentations to UnitedNations and by Malaysia.
the International Court of Justice, it didnot oppose the The power of the Court to give an advisory opinion is
deriveti from Article 96, paragraph 2, of the Charter and
subn~issionof the matterto that Courtthroughthe Council. from Article 65 of the Statute. Both provisions require that

the questionformingthe subjectmatter of the request should
After reproducing paragraphs 1 -15 of the Secretary- be a ''legal question". This condition is satisfied in the
present case, as all participants in the proceedings have
General's note, the Court then refers to the dossier of acknowledged, because the advisory opinion requested
documents submitted to it by the Secretary-General,which relates to the interpretation of the General Convention, and
contains additional information that bears on an to its application to the circumstances of the case of the
understanding of the request to the Court, concerning the SpecialRapporteur,Dato' Param Cumaraswamy.
context in which Mr. Cumaraswamy was asked to give
his comments; concerning the proceedings against Article 96, paragraph 2, of the Charter also requires that
the legal questions forming the subject matter of advisory
Mr. Cumaraswamy in the High Court of Kuala Lumpur, opinior~srequested by authorized organs of the United
which did not pass upon Mr. Cumaraswamy's iinmunity in Nation:; and specialized agencies shall arise "within the
linliilelitis, but heldthat it hadjurisdiction to hear the casescope of their activities". The fulfilment of this condition
before it on the merits, including making a determinationof has not been questioned by any of the participants in the
whether Mr. Cumaraswainywas entitled to any immunity,a
decisionupheld by both the Courtof Appeal and the Federal present proceedings.The Court findsthat the legal questions
Court of Malaysia; and conceniing the regular reports, submittedby the Council inits request concernthe activities
of the Commission since they relate to the mandate of its
which the Special Rapporteur made to the Comn~issionon Special Rapporteur appointed "to inquire into substantial
Human Rights and in which he reported on the lawsuits allegations concerning, and to identify and record attacks
initiated against him. The Court further refers to the on, the independence of the judiciary, lawyers and court
considerationand adoptionwithout a vote by the Council of
the draft decision requesting the Court to give an advisory officials".
opinion on the question formulatedtherein, and the fact that
at that meeting, the Observer for Malaysia confirmed his Discretionarypower of the Court
(paras. 28-30)
previous criticism of the Secretary-General's note, but made
no comment on the terms of the question to be put to the As the Court held in its Advisory Opinion of 30 March
Court as now formulated by the Council. Finally, 1950, the permissive character of Article 65 of the Statute
Malaysia's informationon the status of proceedings in the "gives the Court the power to examine whether the
Malaysiancourts is referredto. circumstances of the case are of such a character as should

lead it -todecline to answer the Request" (Interpretationof
Peace Treaties with Bulgaria, HtrrlgalynndRomania,First
Plzme..AdvisoiyOpiizion,I.C.J.Repoi-ts1950,p. 72). In theprese:ntcase, the Court, having established its jurisdiction, "The purpose of Section 22 is ...evident, namely, to
finds no compellingreason:;not to give the advisoryopinion enable the United Nations to entrust missions to persons
requested by the Council. Moreover, no participant in these who do not have the status of an official of the

proceedingsquestionedthe need for the Court to exerciseits Organization, and to guarantee them 'such privileges
advisory f~mctionin this case. and imnnunitiesas are necessary for the independent
exercise of their functions'..The essence of the matter
The.yzlestiorlon which the opinion is requesied lies not in their administrativeposition but inthe nature
t~aras. 31-37) of their mission."I.C.J.Repor-ts1989,p. 194,para. 47)
In that same Advisory Opinion. it concluded that a
As the Council indicated in the preamble to its decision
19981397,that decision was adoptedby the Council on the Special Rapporteur who is appointed by the Sub-
basis of the note submitted by the Secretary-General on Commissionon Preventionof Discriininationand Protection
of Minorities and is entrusted with a research mission must
"Privileges and Immunitiesof the SpecialRapporteurof the be regarded as an expert on mission within the meaning of
Commissioil on Human Rights on the Independence of ArticleVI, Section22, of the GeneralConvention.
Judges and Lawyers". Paragraph 1 of the operative part of
the clecisionrefers expressly to paragraphs 1 .to 15 of that The Court finds that the same conclusionmust be drawn
note but not to paragraph 21, containing two questions that with regardto SpecialRapporteursappointed by the Human
the Secretary-Generalproposedsubmittingto the Court.The Rights Commission. of which the Sub-Commission is a
Court would point out that the wording of the question subsidiaryorgan. It observesthat Special Rapporteks of the
Commission usually are entrusted not only with a research
submitted by the Council is quite different from that mission but also with the task of monitoring human rights
proposed by the Secretary-General. violations and reporting on them. But what is decisive is
Participants in these proceedings, including Malaysia
and otherStates, have adv:3ilceddiffering views as to what that they have been entrusted with a mission by the United
is the legalquestioiito be answered by the Court. The Court Nations and are therefore entitled to the privileges and
immunities provided for in Article VI, Section 22, that
observes that it is for the Council and not fbr a member safeguard the independent exercise of their functions. After
State:or the Secretary-Gene:ral-to formulatethe tem~sof a examining Mr. Cumaraswamy's mandate, the Court finds
question that the Council wishes to ask. Accordingly, the that he mustbe regarded as an expert on mission within the
Court will now answer the question as formulated by the meaning of Article VI, Section 22, as from 21 April 1994,
Coui~cil.
that by virtue of this capacity the provisions of this Section
were applicableto him at the time of his statementsat issue,
Applicabilit?, of'Article J!I,Section 22, of th~General and that theycontinueto be applicable.
Conve~ztioizto Special Rcrpporteurs of'the.Hzinzan The Court finally observes that Malaysia has
Rights Cor~zrnissiorl acknowledged that Mr. Cumaraswamy, as Special
(paras. 38-46)
Rapporteurof the Commission,is an expert on mission and
The Court initiallyexaminesthe first part ofthe question that such experts enjoy the privileges and immunities
laid 'beforethe Court by the:Council,which is: provided for underthe GeneralConventionin their relations
"the legal question of the applicability of Article VI, with States parties, including those of which they are
nationals or on the territory of which they reside. Malaysia
Section 23, of the Cc~nventionon the Pivileges and andthe United Nations are infull agreementon thesepoints,
Immunities of the United Nations in the c:aseof Dato' as are theother Statesparticipatingin the proceedings.
E'arain Cuinaraswamy as Special Rapporteur of the
ommi missioonn I-ImnamRights on the independence of
judges and lawyers, taking into ilccount the Applicability qf Article VI,Sectioir 22, of the General
c:ircumstancesset out in paragraphs 1 to 15 of the note Cor~ventioilii~the spec13c cii*cui~zsta~rcoefthe case
by the Secretary-General ...". (paras. 47-56)

From the deliberations.whichtook placein.:;heCouncilit The Court then considers the question whether the
is clear that the request of the Councildoes not only pertain immunity provided for in Section 22 (b) applies to Mr.
to the threshold question whether Mr. Cumasaswamy was Cumaraswamy in the specific circumstances of the case;
and is an expert on mission in the sense of Article VI, namely, whether thewords used by him inthe interview,as
Section 22, of the General.Convention but, in the event of
an affirmativeanswer to tl~isquestion, to the consequences published in the article in Inten~ational Coii~inercial
Litigatioii (Noveinber 1995 issue), were spoken in the
of that finding in thecirc~unstancesof the case. The Court course of the performance of his mission, and whether he
notes that Malaysia became a party to the General was therefore immune from legal process with respect to
Convention, without reservation, on 28 October 1957.[Part these words.
of Section 22 of Article VI of that Convention is quoted
above,on p. 2.1 In the process of determiningwhethera particularexpert
on mission is entitled, in the prevailingcircumstances,to the
The Court then recalls ithatin its AdvisoryOpinionof 14 immunity provided for in Section 22 (b), the Secretary-
December 1989(in the so-called "Mazilzr" case) it stated: Generalof the UnitedNationshas a pivotalrole to play. The
Secretary-General,as the chief administrative officer-of the

67Organization, has the authority and the responsibility to Legal obligutiorts of'Mulcry.~iain the case
exercisethe necessary protection whererequired. ArticleV1, (paras. 57-65)
Sectio~~23, of the General Convcntiou provides that
"[p]rivileges and immunities are granted to experts in the The Court then deals with the second part of the
interests of the United Nations and not for the personal Council's question, namely, "the legal obligations of
Malaysia in this case". Rejecting Malaysia's argument that
benefit of the individuals themselves". In exercising it isprelnature to deal with that question, the Court points
protection of United Nations experts, the Secretary-General out that the difference which has arisen betweenthe United
is therefore protecting the mission with whichthe expert is Nations and Malaysia originated in the failure of the
entrusted. In that respect, the Secretary-General has the
primary responsibility and authority to protect the interests Governmentof Malaysiato informthe competentMalaysian
of the Organization and its agents, including experts on judicial authorities of tlie Secretary-General's findingthat
mission. Mr. Cumaraswamy had spoken tlie words at issue in the
course:of the performanceof his mission and was, therefore,
The determinationwhether an agent of the Organization entitled to iiniilunity froill legal process. It is as from the
has acted in the course of the performance of his mission time of this omissionthat thequestionbefore theCourtmust
depends upon the facts of a particular case. hi the present be answered.
case, the Secretaiy-General, or the Legal Counsel of the
United Nations on his behalf, has on numerous occasions As the Court has observed, the Secretary-General,as the
informed the Government of Malaysia of his linding that chief administrative officer of the Organization, has the
primary respoiisibility to safeguard the interests of tlie
Mr. Culiiaraswamy had spoken the words quoted in the Organization; to that end, it is up to him to assess whether
article in I/zterr~crtiortClbntmer-cia1Litigation in his its agents acted within the scope of their fuiictions and,
capacity as Special Rapporteur of tlie~olnmission and that where he so concludes, to protect these agents, including
he consequentlywas entitledto immunityfi-om"every kind"
of legal process. The Secretary-General was reinforced in experts on mission, by assertingtheir immunity. This nieans
this view bythe fact tliat ithas become standardpractice of that the Secretary-General has the authority and
responsibility to inform the government of a member State
SpecialRapporteursof the Commissionto have contactwith of his finding and, where appropriate, to request it to act
the media. accordingly and, ia particular, to request it to bring liis
Thc Court notes that Mr. Cnmaraswamy was explicitly finding to the knowledge of the local courts if acts of an
referredto several times in the article "MalaysianJustice on agent have givenor niay give rise to courtproceedings.That
Trial" in Iilter~lationi~lCoinmercial Litigcrtion in his
capacity as United Nations Special Rapporteur on the finding, and its documentary expression, creates a
presunlption of immunity which can only be set aside for
Independenceof Judges and Lawyers, and further that in its the most compelling reasons and is thus to be given the
various resolutionsthe Colilmissiontook note of tlie Special greatest weight by national courts. The governmental
Rapporteur's reportsand of his methods of work. In 1997,it authorities of a party to the General Convention are
extcnded his illandate for another three years. The therefore under an obligation to convey such information to
Conlinission presumably would not have so acted if it had
been of the opiiiion that Mr. Cumaraswamy had gone the national courts concerned, since a proper application of
beyond his mandate and had given the iiiterview to the Convention by them is dependent on such infornlation.
Failure to comply with this obligation, anlong others, could
Irttenmtioi~crl onlnzercialLitigatiorzoutside the course of give rise to the institutionof proceedingsunder Article VIII,
his functions.Thus tlie Secretary-Generalwas able to find Sectio1130,of the GeneralConvention.
supportfor liisfindingsin the Commission'sposition. The Court concludes that the Government of Malaysia
The Court concludes tliat it is not called upon in the
present case to pass upon the aptness of the terms used by had an obligation, under Article 105 of the Charter and
under the General Convention, to inform its courts of the
the Special Rapporteuror liis assessmentof the situation.In position taken by the Secretary-General. According to a
ally event, in view of all the circumstances of this case, well-establishedrule of internationallaw,the conductof any
elements of which are set out in paragraphs 1 to 15 of the organ of a State must be regarded as an act of that State.
note by the Secretary-General, the Court is of the opinion Because tlie Government did not transmit the Secretary-
that the Secretary-General correctly found that Mr.
Cumaraswamy. in speaking the words quoted in the article General's finding to the competent courts,and the Minister
in Iizternrrtiorrl oii~mercicil itigrrtion,was acting in the for Foreigii Affairs did not refer to it in his own certificate,
Malaysia did not coinply with the above-mentioned
course of the perfonnance of his mission as Special obligation.
Rapporteur of the Commission. Consequently, Article VI, Section 32 (h) of tlie General Convention explicitly
Section 22 (h),of the General Convention is applicable to states rhat experts on mission shall be accorded immunity
him in the present case and affords Mr. Cumaraswamy
immuliityfrom legalprocess of everykind. from legal process of every kind in respect of words spoken
or written and acts done by them in the course of the
perfonnalice of their mission. By necessary implication,
questions of immunity are therefore preliminary issues
which mustbe expeditiouslydecided inlijjliire1iti.s.This is a
generally recognized priilciple of law, and Malaysia wasunder an obligation to respect it. The MalaySia~1 courts did by United Nations functionaries, for the latter fu~ictioi~in
not rille in linzirle1iti.son the imniu~iityof ::lie Special the interests of theoriitiiunityof nations as represented by
Rappcrrteur,thereby nullifying thc essence of the immunity the United Nations, and not on behalf of any particular
rule contained in Section22 (b). Moreover,costs were taxed State. The jilrisprude~icethat has grown up regarding the

to Mr. Cumaraswamy while the questionof iiiirnunitywas rights of domestic courts to deternjinc questior~srelating to
still unresolved.As indicatedabove, theconductof an organ the immunities of tlie reprcseiitatives or officials of one
of a State - even a1 organ independent of the executive State for their actions in another State is therefore not
power. - must be regarcled as an act of that State. necessarily applicable in its entirety where United Nations
Consequently, Malaysia did not act in accordatice with its personnel are involved. If a doiiiestic court is free to
obligationsunder internationallaw. disregard the determination of the Secretary-General on

The Court adds that the immunityfroni legal process to their immunities, many problems would arise in relation to
which it finds Mr. Cumaraswamy entitled entails holding UnitedNationsactivityin a numberof areas.
Mr. (2umaraswamy financially harmless for any costs There is also a need for uniformity in the jurisprudence
imposcd upon him by the Malaysian courts, i:nparticular relating to this matter, irrespective of where a particular
taxed costs. rapporteur functions. It is not conducive to the evolution of
a uniforni system of international administrative law if
It further observes that, according to Article VIII,
Sectioa 30, of the General Convention,the opinion given by rapporteurs could have different privileges depending on
the Coi~rtshall be accepted as decisive by the p;artiesto the where they function. This underlines the importance of the
dispute. Malaysia has acknowledged its obligations under coiiclusivenessof the Secretary-General'sdeterinination.
Section 30. Since the Court :holdsthat Mr. Cumaraswamy is It need scarcely be stressed that rapporteurs,ll making
an expert on mission who under Section22 (b) is entitledto statements to the media, will always bc expected to ensure

immunity from legal process, the Government of Malaysia that they act within the limits of the performance of their
is obligated to communicate this advisory opinion to the mission.
competent Malaysian coul-ts, in order that Malaysia's
international obligations be given effect and Mr. Separate opiniolz c!fJ~rdgeOdci
Cumaraswamy'simmuiiity be respected.
Judge Odapoints out that. whilethe Court was requested
by ECOSOC to reply on the issue relating to the legal
immunity to be granted to Mr. Cumaraswamy, tlie Special
Filially, tlie Court points out that the question of
immunity from legalprocess is distinct from the issue of Rapporteur of tlie United Nations Commission on Human
comnpr:nsationfor any damages incurred as a result of acts Rights, with regard to the words he spoke during an
interview with a business journal, tlie question had,
perfoiined by the United Nationsor by its agents acting in however, originally been formulated differently, the issue
their official capacity. TheJnited Nations may be required then being whether the United Nations Secretary-General
to bear responsibility for the damage arising from such acts. had the exclusive authority to deteniiine whether Mr.
However, as is clear from Article VIII, Section 29, of the Cumaraswamy would be entitled to legal immunity. Judge
General Convention. such compensation claims against the
United Nations shallnot be dealt with bynational courtsbut Oda expresses his apprehensioii that the Court's Advisory
shall be settled in accordancewith the appropriatemodes of Opinion seems to be more coiicerned with the Secretary-
General's competence, rather thanwith tlie legal im~nunity
settlement that the "United Nations shall make provisions tobe granted to Mr. Cumaraswamy.
for" pursuant to Section 29. The Court furthermore Judge Oda considers that the issue to be decided is
considers that it need hardly be said that all agents of the whether Mr. Cumaraswamy should be immune froni legal
United Nations, in whatever official capacity they act, must
take care not to exceed the scope of their functions, and process of the Malaysiancourts in respect of whathe statcd
should so cotnport theniselvesas to avoid claim!;against the in the i1ite1-viwith a businessjournal on accountof which
United Nations. defamationsuits were brought against him in tlie Malaysian
courts by certain private companies. The essential issue,
according to Judge Oda, is related riotto the wor.dsspoken
Sepurcrteopirzionof Vice-President Weer~lc;!mantly by Mr. Cumaraswainybzrtto whether he spoke the words in

Vice-President Weeramantry, in his separate opinion, tlte cotrrse of the perforntance of his rr1issiortas a Special
stresses his agreement with the principles set out in the Rapporteur of the Commission on Human Rights. Judgc
COLI~IO .'pinion that national courts should immediately be Oda takes the view that the contact the Special Rapporteur
notified of any finding by theSecretay-General concerning maintained with the media in con~iectionwith his mandate
tlie immunity of a United Nations agent, and that the falls in general withinthe mission of a specialrapporteur.n
this respect, Judge Oda supportsthe conclusionof the Coui-t
Secretary-General's finding carries a presilmption of as set out in paragraphs (1)(N),(1)(b) and paragraph(3) of
iinrnu~iity which can only be set aside for the most
co~npellinpreasons. the operativepart.
T11isOpinion draws attention to the differencesbetween Judge Oda is in fill1agreement with the Court whcn it
claims to immuility of State fiinctionaries and such claims states in paragraph (2) (b) of the operative part that the
Malaysian courts had the obligation to deal with thequestion of immunity from legal process as a preliminary Judge Koroma pointed to the differencesin the question
issueto be expeditiouslydecided inliiirinelitis. proposed by the Secretary-General to the Economic and
Judge Oda cannot, however, agree with the Court's Social Council (ECOSOC) for submission to the Court for
findings in paragraph (2) (a) and paragraph (4) of the an advisory opinion and the Council's subsequent
operative part, which relate to the legal obligations of reformulationof the questionwithout explanation.While he
recognized the right of ECOSOC to formulatethe question,
Malaysia, as put to the Court in the second question
contained in the request for advisory opinion. In his view, he maintained that the Court in exercising its judicial
Malaysia, as a State, is responsible for not having ensured discretionneed notanswer the question if it was tendentious
that Mr. Cumaraswanly enjoyed legal immunity. However, and left the Court with no option but to give its judicial
whether the Government of Malaysia should have informed imprimatur to a particular viewpoint. On the other hand, in
its national courts of the view of the United Nations his view, if the Court was disposed to answer the question,
Secretary-General is not a relevant matter in this respect. it should have answered the "real question". Moreover, in
order to determine whether the Convention was applicable,
Furthermore, Judge Oda cannot see any such obligation of
the Government of Malaysia to communicatethis Advisory the Clourtshouldhave enquired into thefacts of the case and
Opinion to the Malaysian national courts. as it is obvious not relied on the findingof anotherorgan.
that Malaysia, as a State, is bound to accept this Advisory H[estressed that whether the Conventionwas applicable
Opinion, under Article VIII, Section 30, of the Convention to the Special Rapporteur was not an abstract question and
on the Privileges and Immunities of the United Nations, as that the answer should have been predicated on whether the
decisive. words spoken were spoken in the performance of his

mission - a matter of mixed law and fact - to be
Separate opirtiorlof Judge Rezek determined on its merits, that it would be only after such a
determination that the Court would be in a position to say
Judge Rezek, while sharing the views of the majority, whether the Convention was applicable. In his opinion, the
wishes to emphasize that the obligation incumbent upon criteria taken into considerationby the Court- such as the
Malaysia isnot merely to notify the Malaysian courts of the Spec:ialRapporteur's appointment by the Human Rights
finding of the Secretary-General, but to ensure that the Commission and the finding by the Secretary-General that
immunity is respected. In his view, a government will
ensure respect for immunity if it uses all the means at its Mr. Cumaraswamy had acted in the performance of his
mission - while they were to be given recognition and
disposal in relation to the judiciary in order to have that treated with respect, were not conclusive, and judicially
imnlunity applied. in exactly the same way as it defends its insufficientto concludethat the Conventionwas applicable.
own interests and positions before the courts. Membership He noted that theobservationby the Courtthat "[ilt need
of an internationalorganization requires that every State, in
its relations with the organization and its agents, display an hardly be said that all agents of the United Nations, in
attitude at least as constructive as that which characterizes whatever official capacity they act, must take care not to
diplomaticrelations. exceed the scope of their functions, and should so comport
themselves as to avoid claims against the United Nations",
is not without particular importance and significance in this
Dissenting opirriorlof Jtrdge Koronza case.

In his dissenting opinion Judge Koroma stated that, In Judge Koroma's view,the Governmentof Malaysia's
much as he would have liked to vote in favour of the obligation under the Convention is one of result not one of
Advisory Opinion if it would help to settle differences means and the Convention does not stipulate any particular
between the United Nations Organization and the method or means of implementation. Once the Court had
Government of Malaysia, however, he was unable to do so responded that the Convention was applicable, the
Government of Malaysia would assume its obligations,
in the face of the Convention, the general principles of
justice andhis own legalconscience. including holding the Special Rapporteur harmless for any
Judge Koroma emphasized that the dispute was not taxed costs imposed upon him, which was unnecessary to
about the human rights of the SpecialRapporteuror whether reflect in the operativeparagraphsof the Opinion.
the Governmentof Malaysiawas in breach of its obligations Finally, while he shared the Court's position that the
under the HumanRights Conventionsto which it is a party. rendering of an advisory opinion should be seen as its
participation in the work of the Organization to achieve its
Rather the dispute was about whether the Special
Rapporteur was immune from legal process for words aimsand objectivesand that only compellingreasons should
spoken by him and whether such words were spoken in the restrain it fromansweringa request,he consideredit equally
performance of his mission, and hencethe applicability of important that, even in giving an advisory opinion, the
the Convention. Court cannot and should not depart from the essential rules
guiding its activityas a court.