International Court of Justice
REQUEST
FOR ADVISORY OPINION
transmitted to the Court pursuant to Economic
and Social Council decision 1998/297
of 5 August 1998
DIFFERENCE RELATING TO IMMUNITY FROM
LEGAL PROCESS OF A SPECIAL RAPPORTEUR
OF THE COMMISSION ON HUMAN RIGHTS
1998
General List
No. 100
I. THE SECRETARY-GENERAL OF THE UNITED NATIONS
TO THE PRESIDENT OF THE INTERNATIONAL
COURT OF JUSTICE
7 August 1998
I have the honour to inform you that pursuant to Article 96, paragraph 2, of the Charter of the
United Nations and in accordance with General Assembly resolution 89 (I), authorizing the
Economic and Social Council to request advisory opinions of the International Court of
Justice, at its forty-ninth meeting of its resumed substantive session of 1998 held on
5 August 1998 the Economic and Social Council adopted by consensus decision 1998/297
(E/1998/L.49/Rev.1). By this decision, the Economic and Social Council requests, on a
priority basis, from the International Court of Justice 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 Dato' 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, contained in document E/1998/94, and on the legal obligations of
Malaysia in this case. A certified copy of the decision in English and French as well as the
note by the Secretary-General (E/1998/94) and the Addendum thereto (E/1998/94/Add.1) on
the subject are enclosed
I also have the honour to inform you that materials for submission to the Court are being
prepared pursuant to Article 65 of the Statute and will be submitted to the Court as soon as
possible.
Please accept, Mr. President, the assurances of my highest consideration.
(Signed) Kofi A. Annan. II. DRAFT DECISION SUBMITTED BY THE VICE-PRESIDENT
OF THE COUNCIL, MR. ANWARUL CHOWDHURY (BANGLADESH),
ON THE BASIS OF INFORMAL CONSULTATIONS
The Economic and Social Council,
Having considered the note by the Secretary-General on the privileges and immunities of the
Special Rapporteur of the Commission on Human Rights on the independence of judges and
lawyers1,
Considering that a difference has arisen between the United Nations and the Government of
Malaysia, within the meaning of Section 30 of the Convention on the Privileges and
Immunities of the United Nations, with respect to the immunity from legal process of Dato'
Param Cumaraswamy, the Special Rapporteur of the Commission on Human Rights on the
independence of judges and lawyers,
Recalling General Assembly resolution 89 (I) of 11 December 1946,
1. Requests on a priority basis, pursuant to Article 96, paragraph 2, of the Charter of the
United Nations and in accordance with General Assembly resolution 89 (I), an advisory
opinion from the International Court of Justice 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 Dato' 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-General1, and on the
legal obligations of Malaysia in this case;
2. Calls upon the Government of Malaysia to ensure that all judgements and proceedings in
this matter in the Malaysian courts are stayed pending receipt of the advisory opinion of the
International Court of Justice, which shall be accepted as decisive by the parties.
III. NOTE BY THE SECRETARY-GENERAL
Privileges and Immunities of the Special Rapporteur
of the Commission on Human Rights on the Independence
of Judges and Lawyers 2
1. In its resolution 22 A (I) of 13 February 1946, the General Assembly adopted, pursuant to
Article 105 (3) of the Charter of the United Nations, the Convention on the Privileges and
Immunities of the United Nations (the Convention). Since then, 137 Member States have
become parties to the Convention, and its provisions have been incorporated by reference into
many hundreds of agreements relating to the headquarters or seats of the United Nations and
its organs, and to activities carried out by the Organization in nearly every country of the
world.
2. That Convention is, inter alia, designed to protect various categories of persons, including
"Experts on Mission for the United Nations", from all types of interference by national
authorities. In particular, Section 22 (b) of Article VI of the Convention provides: Section 22: "Experts (other than officials coming within the scope of Article V)
performing missions for the United Nations shall be accorded such privileges and
immunities as are necessary for the independent exercise of their functions during the
period of their missions, including time spent on journeys in connection with their
missions. In particular they shall be accorded:
(b) in respect of words spoken or written and acts done by them in the course of the
performance of their mission, immunity from legal process of any kind. This
immunity from legal process shall continue to be accorded notwithstanding that the
persons concerned are no longer employed on missions for the United Nations".
3. In its Advisory Opinion of 14 December 1989, on the Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United Nations (the so-
called "Mazilu case"), the International Court of Justice held that a Special Rapporteur of the
Subcommission on the Prevention of Discrimination and Protection of Minorities of the
Commission on Human Rights was an "expert on mission" within the meaning of Article VI
of the Convention.
4. The Commission on Human Rights, by its resolution 1994/41 of 4 March 1994, endorsed
by the Economic and Social Council in its decision 1994/251 of 22 July 1994, appointed
Dato' Param Cumaraswamy, a Malaysian jurist, as the Commission's Special Rapporteur on
the Independence of Judges and Lawyers. His mandate consists of tasks including, inter alia,
to inquire into substantial allegations concerning, and to identify and record attacks on, the
independence of the judiciary, lawyers and court officials. Mr. Cumaraswamy has submitted
four reports to the Commission on the execution of his mandate: E/CN.4/1995/39,
E/CN.4/1996/37, E/CN.4/1997/32 and E/CN.4/1998/39. After the third report containing a
section on the litigation pending against him in the Malaysian civil courts, the Commission at
its fifty-fourth session, in April 1997, renewed his mandate for an additional three years.
5. In November 1995 the Special Rapporteur gave an interview to International Commercial
Litigation, a magazine published in the United Kingdom of Great Britain and Northern
Ireland but circulated also in Malaysia, in which he commented on certain litigations that had
been carried out in Malaysian courts. As a result of an article published on the basis of that
interview, two commercial companies in Malaysia asserted that the said article contained
defamatory words that had "brought them into public scandal, odium and contempt". Each
company filed a suit against him for damages amounting to M$30 million (approximately
US$12 million each), "including exemplary damages for slander".
6. Acting on behalf of the Secretary-General, the Legal Counsel considered the circumstances
of the interview and of the controverted passages of the article and determined that
Dato' Param Cumaraswamy was interviewed in his official capacity as Special Rapporteur on
the Independence of Judges and Lawyers, that the article clearly referred to his United
Nations capacity and to the Special Rapporteur's United Nations global mandate to investigate
allegations concerning the independence of the judiciary, and that the quoted passages related
to such allegations. On 15 January 1997, the Legal Counsel, in a note verbale addressed to the
Permanent Representative of Malaysia to the United Nations, therefore "requested the
competent Malaysian authorities to promptly advise the Malaysian courts of the Special
Rapporteur's immunity from legal process" with respect to that particular complaint. On
20 January 1997, the Special Rapporteur filed an application in the High Court of Kuala
Lumpur (the trial court in which the said suit had been filed) to set aside and/or strike out the
plaintiffs' writ, on the ground that the words that were the subject of the suits had been spokenby him in the course of performing his mission for the United Nations as Special Rapporteur
on the Independence of Judges and Lawyers. The Secretary-General issued a note on
7 March 1997 confirming that "the words which constitute the basis of plaintiffs' complaint in
this case were spoken by the Special Rapporteur in the course of his mission" and that the
Secretary-General "therefore maintains that Dato' Param Cumaraswamy is immune from legal
process with respect thereto". The Special Rapporteur filed this note in support of his above-
mentioned application.
7. After a draft of a certificate that the Minister for Foreign Affairs proposed to file with the
trial court had been discussed with representatives of the Office of Legal Affairs, who had
indicated that the draft set out the immunities of the Special Rapporteur incompletely and
inadequately, the Minister nevertheless on 12 March 1997 filed the certificate in the form
originally proposed; in particular the final sentence of that certificate in effect invited the trial
court to determine at its own discretion whether the immunity applied, that this was the case
"only in respect of words spoken or written and acts done by him in the course of the
performance of his mission" (emphasis added). In spite of the representations that had been
made by the Office of Legal Affairs, the certificate failed to refer in any way to the note that
the Secretary-General had issued a few days earlier and that had in the meantime been filed
with the court, nor did it indicate that in this respect, i.e. in deciding whether particular words
or acts of an expert fell within the scope of his mission, the determination could exclusively
be made by the Secretary-General, and that such determination had conclusive effect and
therefore had to be accepted as such by the court. In spite of repeated requests by the Legal
Counsel, the Minister for Foreign Affairs refused to amend his certificate or to supplement it
in the manner urged by the United Nations.
8. On 28 June 1997, the competent judge of the Malaysian High Court for Kuala Lumpur
concluded that she was "unable to hold that the Defendant is absolutely protected by the
immunity he claims", in part because she considered that the Secretary-General's note was
merely "an opinion" with scant probative value and no binding force upon the court and that
the Minister for Foreign Affairs certificate "would appear to be no more than a bland
statement as to a state of fact pertaining to the Defendant's status and mandate as a Special
Rapporteur and appears to have room for interpretation". The Court ordered that the Special
Rapporteur's motion be dismissed with costs, that costs be taxed and paid forthwith by him
and that he file and serve his defence within 14 days. On 8 July, the Court of Appeal
dismissed Mr. Cumaraswamy's motion for a stay of execution.
9. On 30 June and 7 July 1997, the Legal Counsel thereupon sent notes verbales to the
Permanent Representative of Malaysia, and also held meetings with him and his Deputy. In
the latter note, the Legal Counsel, inter alia, called on the Malaysian Government to intervene
in the current proceedings so that the burden of any further defence, including any expenses
and taxed costs resulting therefrom, be assumed by the Government; to hold Mr.
Cumaraswamy harmless in respect of the expenses he had already incurred or that were being
taxed to him in respect of the proceedings so far, and, so as to prevent the accumulation of
additional expenses and costs and the further need to submit a defence until the matter of his
immunity was definitively resolved between the United Nations and the Government, to
support a motion to have the High Court proceedings stayed until such resolution. The Legal
Counsel referred to the provisions for the settlement of differences arising out of the
interpretation and application of the 1946 Convention that might arise between the
Organization and a Member State, which are set out in Section 30 of the Convention, and
indicated that if the Government decided that it cannot or does not wish to protect and to holdharmless the Special Rapporteur in the indicated manner, a difference within the meaning of
those provisions might be considered to have arisen between the Organization and the
Government of Malaysia.
10. Section 30 of the Convention provides as follows:
Section 30: "All differences arising out of the interpretation or application of the
present convention shall be referred to the International Court of Justice, unless in any
case it is agreed by the parties to have recourse to another mode of settlement. If a
difference arises between the United Nations on the one hand and a Member on the
other hand, a request shall be made for an advisory opinion on any legal question
involved in accordance with Article 96 of the Charter and Article 65 of the Statute of
the Court. The opinion given by the Court shall be accepted as decisive by the
parties."
11. On 10 July yet another lawsuit was filed against the Special Rapport
eur by one of the
lawyers mentioned in the magazine article referred to in paragraph 5 above, based on
precisely the same passages of the interview and claiming damages in an amount of M$60
million (US$24 million). On 11 July, the Secretary-General issued a note corresponding to the
one of 7 March 1997 (see para. 6 above) and also communicated a note verbale with
essentially the same text to the Permanent Representative of Malaysia with the request that it
be presented formally to the competent Malaysian court by the Government.
12. On 23 October and 21 November 1997, new plaintiffs filed a third and fourth lawsuit
against the Special Rapporteur for M$100 million (US$40 million) and M$60 million
(US$24 million) respectively. On 27 October and 22 November 1997, the Secretary-General
issued identical certificates of the Special Rapporteur's immunity.
13. On 7 November 1997, the Secretary-General advised the Prime Minister of Malaysia that
a difference might have arisen between the United Nations and the Government of Malaysia
and about the possibility of resorting to the International Court of Justice pursuant to
Section 30 of the Convention. Nonetheless on 19 February 1998, the Federal Court of
Malaysia denied Mr. Cumaraswamy's application for leave to appeal stating that he is neither
a sovereign nor a full-fledged diplomat but merely "an unpaid, part-time provider of
information".
14. The Secretary-General then appointed a Special Envoy, Maître Yves Fortier of Canada,
who, on 26 and 27 February 1998, undertook an official visit to Kuala Lumpur to reach an
agreement with the Government of Malaysia on a joint submission to the International Court
of Justice. Following that visit, on 13 March 1998 the Minister for Foreign Affairs of
Malaysia informed the Secretary-General's Special Envoy of his Government's desire to reach
an out-of-court settlement. In an effort to reach such a settlement, the Office of Legal Affairs
proposed the terms of such a settlement on 23 March 1998 and a draft settlement agreement
on 26 May 1998. Although the Government of Malaysia succeeded in staying proceedings in
the four lawsuits until September 1998, no final settlement agreement was concluded. During
this period, the Government of Malaysia insisted that, in order to negotiate a settlement,
Maître Fortier must return to Kuala Lumpur. While Maître Fortier preferred to undertake the
trip only once a preliminary agreement between the parties had been reached, nonetheless,
based on the Prime Minister of Malaysia's request that Maître Fortier return as soon as
possible, the Secretary-General requested his Special Envoy to do so.15. Maître Fortier undertook a second official visit to Kuala Lumpur, from 25 to 28 July 1998,
during which he concluded that the Government of Malaysia was not going to participate
either in settling this matter or in preparing a joint submission to the current session of the
Economic and Social Council. The Secretary-General's Special Envoy therefore advised that
the matter should be referred to the Council to request an advisory opinion from the
International Court of Justice. The United Nations had exhausted all efforts to reach either a
negotiated settlement or a joint submission through the Council to the International Court of
Justice. In this connection, the Government of Malaysia has acknowledged the Organization's
right to refer the matter to the Council to request an advisory opinion in accordance with
Section 30 of the Convention, advised the Secretary-General's Special Envoy that the United
Nations should proceed to do so, and indicated that, while it will make its own presentations
to the International Court of Justice, it does not oppose the submission of the matter to that
Court through the Council.
16. The Secretary-General considers it most important that the principle be accepted that it is
for himself alone to determine, with conclusive effect (except as indicated in paragraph 17
below), whether a member of the staff of the Organization or an expert on mission has spoken
or written words or performed an act "in their official capacity" (in the case of officials) or "in
the performance of their mission" (in the case of experts on mission). Unless such conclusive
effect is accorded to his determinations in this respect, it will be for national courts to
determine - and in respect of a given word or act there may be several national courts -
whether an official or an expert, or a former official or expert, enjoys immunity in respect of
his words or acts. The adjudication of United Nations privileges and immunities in the
national courts would be certain to have a negative effect on the independence of officials and
experts, who would then have to fear that at any time, whether they were still in office or after
they had 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 officials or
experts.
17. Although the decision of the Secretary-General must thus be considered as not subject to
challenge in national courts, it can, of course, be challenged by a Government concerned
pursuant to Section 30 of the 1946 Convention (quoted in paragraph 10 above), in which case
the matter would be decided with binding effect by the International Court of Justice.
18. It should be pointed out that Section 23 of the 1946 Convention provides in respect of
experts (and similarly Section 20 in respect of officials) that:
Section 23: "Privileges and immunities are granted to experts in the interests of the
United Nations and not for the personal benefit of the individual themselves. The
Secretary-General shall have the right and the duty to waive the immunity of any
expert in any case where, in his opinion, the immunity would impede the course of
justice and it can be waived without prejudice to the interests of the United Nations."
Thus any abuse of the immunities of an expert (or an official) would be prevented by the right
and duty of the Secretary-General to waive such immunity under the circumstances specified
in those sections.
19. In connection with this case, it should also be noted that the Secretary-General received a
communication from the Special Rapporteurs/Representatives/Experts and Chairpersons of
Working Groups of the Commission on Human Rights and the Advisory Services Programmeof the United Nations Commission on Human Rights which indicated that "undermining the
immunity accorded to one expert constitutes an attack on the entire system and institution of
United Nations human rights special procedures and mechanisms". Moreover, on
29 May 1998, the Fifth Meeting of Special Rapporteurs/Representatives/Experts and
Chairpersons of Working Groups of the Commission on Human Rights and of the Advisory
Services Programmes adopted a statement entitled the "Judicial Harassment of a Special
Rapporteur" urging the Secretary-General to refer the matter to the International Court of
Justice pursuant to Section 30 of the Convention. The Secretary-General received
innumerable interventions from representatives of the international human rights and legal
community reflecting the overwhelming consensus in favour of referring the matter to the
International Court of Justice.
20. Finally, it is necessary to point out that unless the Government of Malaysia accepts the
responsibility, costs and expenses of ensuring respect for the Special Rapporteur's immunity
through appropriate interventions in the Malaysian courts, then these considerable expenses
might have to be assumed by the Organization itself as it considers that the words that
constitute the basis of the plaintiffs' complaint were spoken by the Rapporteur in the course of
his mission.
21. As the Organization and the Government of Malaysia agree that a difference has arisen
between them out of the interpretation or application of the Convention and as they have been
unable to agree on another mode of settlement, the difference should be referred to the
International Court of Justice in accordance with Section 30 of the Convention and the
following request for an advisory opinion should be made in accordance with Article 96 of the
Charter of the United Nations and Article 65 of the Statute of the Court:
"Considering the difference that has arisen between the United Nations and the
Government of Malaysia with respect to the immunity from legal process of
Mr. Dato' Param Cumaraswamy, the United Nations Special Rapporteur of the
Commission on Human Rights on the Independence of Judges and Lawyers, in respect
of certain words spoken by him:
1. Subject only to Section 30 of the Convention on the Privileges and Immunities of
the United Nations, does the Secretary-General of the United Nations have the
exclusive authority to determine whether words were spoken in the course of the
performance of a mission for the United Nations within the meaning of Section 22 (b)
of the Convention?
2. In accordance with Section 34 of the Convention, once the Secretary-General has
determined that such words were spoken in the course of the performance of a mission
and has decided to maintain, or not to waive, the immunity from legal process, does
the Government of a Member State party to the Convention have an obligation to give
effect to that immunity in its national courts and, if failing to do so, to assume
responsibility for, and any costs, expenses and damages arising from, any legal
proceedings brought in respect of such words?
Pending receipt of the advisory opinion of the International Court of Justice, which
shall be accepted as decisive by the parties, the Government of Malaysia is called
upon to ensure that all judgements and proceedings in this matter in the Malaysian
courts are stayed."
IV. Addendum to the Note by the Secretary-General 3In paragraph 14 of the note by the Secretary-General on the privileges and immunities of the
Special Rapporteur of the Commission on Human Rights on the independence of judges and
lawyers (E/1998/94), it is reported that the "Government of Malaysia succeeded in staying
proceedings in the four lawsuits until September 1998". In this connection, the Secretary-
General has been informed that on 1 August 1998, Dato' Param Cumaraswamy was served
with a Notice of Taxation and Bill of Costs dated 28 July 1998 and signed by the Deputy
Registrar of the Federal Court notifying him that the bill of costs of the Federal Court
application would be assessed on 18 September 1998. The amount claimed is M$310,000
(US$77,500). On the same day, Dato' Param Cumaraswamy was also served with a Notice
dated 29 July 1998 and signed by the Registrar of the Court of Appeal notifying him that the
Plaintiff's bill of costs would be assessed on 4 September 1998. The amount claimed in that
bill is M$550,000 (US$137,500).
1 These documents, reproduced below, have been certified as true copies by the Office of
Legal Affairs of the United Nations. (Note by the Registry.)
2 E/1998/94.
3 E/1998/94/Add.1. UNITED NATIONS
DIFFERENC EELATING TOIMMUNTYFXOM LEGAL PROCESS
OFA SPECIALRAPPORTEUR OFTHECOMMISSION ON HUMAN RIGHTS
(Requestfor Advisory Opinion)
DocumentsrelatintheQuestiononwhichthe EconomicandSocialCouncil
requestedAdvisoryOpinion,initsdecision19of5 August1998,
transmittedtothe InternationalCourbythe Secretary-GelftheUnitedNations
inaccordancewith Ar65ofthStatuteoftheCourt INTRODUCTORYNOTE
THEREQUEST
1. On 5 August 1998,the Economicand SocialCouncil (hereinafterthe "Council"),at its
resumedsubstantive session of 1998,decision19981297by consensus(DossierNo. 61 below).
By thisdecision,the Councildecidedto requestan advisory opinionfiom the International Courtof
Justice.
FRAMEWORKOF THEDOSSIER
The Dossier,preparedpursuantto the ActingPresident's Orderof 10August 1998and
0 2.
paragraph2 of Article 65 ofthe Statuteof the Court,contains the documents andother materials
likelyto throwlight uponthe questionon whichthe advisory opinionof the Courtis requested. The
itemsin the Dossierare numberedconsecutivelyand identified,as appropriate,by title or official
United Nationssymbol.
3. The Dossieris dividedinto three Parts. PartI containsmaterialsrelatingto the appointment
andmandate ofthe Special Rapporteuron the independence ojfudges and lawyers (hereinafter,the
"SpecialRapporteur"), thelaw suitsagainstthe Special,nd the proceedings leadingto the
requestby the Council foran advisory opinion. Partnsmaterialsrelatingto the Convention
on thePrivilzgesand Immunities ofthe United Nations athe General Assemblyof the
UnitedNationson 13February 1946(hereinafter,the "Convention").Partains materials
relating tothe practiceof the Organization inrelationto the assertionand waiver ofthe functional
privileges andimmunitieswhich are accoits officialsand experts-on-mission.
INTRODUCTION TO PART I
0 MATERIALSRELATINGTO THEAPPOINTMENT ANDMANDATEOF THE SPECIAL
RAPPORTEUR ON THE INDEPENDENCE OFJUDGES AND LAWYERS,THELAWSUITS
AGAINSTTHE SPECIALRAl?ORTEUR ANDTEE PROCEEDINGSLEADING TO THE
REQUEST BY THECOUNCILFORAN ADVISORYOPINION
A. MATERIALSRELATINGTO THE APPOINTMENT ANDMANDATEOF THE
SPECIALRAPPORTEURON THE INDEPENDENCE OF JUDGESAND LAWYERS
4. In its resolution1994141of 4 March 1994,the UnitedNations Commissionon HumanRights
establishedthe office and mandate otfhe Special Rthe independenceof judges and
lawyers.(DossierNo. 1)
5. By letter dated 21April1994,the Chainnanof the Commissionon HumanRights, following
consultationswiththe Bureau, appointedDato'Cumaraswamy,a nationalof Malaysia,as
SpecialRapporteuron the independenceofjudges and lawyers.(DossierNo. 2)
6. Inits decision19941251of 22 July 1994,the Counciltheafore-mentioned actionby
the UnitedNations Commissionon HumanRights. (DossierNo. 3) 7. On 6 February 1995, theFirst Report ofthe SpecialRapporteur(ElCN.411995139w ) asissued.
(DossierNo. 4)
8. Initsresolution1995136of 3 March 1995(DossierNo. 5), the Commissionon HumanRights
"note[d]with appreciationthe determination ofthe SpecialRapporteurto achieveas wide a
disseminationas possibleof information aboutexistingstandardsrelating to the independenceand
impartiality ofthejudiciaryand the independenceof thelegalprofession in conjunctionwith the
publicationsandpromotionalactivitiesof theCentrefor HumanRights". In this connection, seealso
itsresolutions1996134of 19 April 1996, 1997123of 11 April1997and 1998135of 17April 1998
(DossierNos.6, 7 and 8).
9. In a letterdated29 August 1995,the SpecialRapporteurwrote to the Chairmanof theFifty-
( ) first sessionof the Commissionon HumanRights,alsoa national ofMalaysia, indicatinghis
obligation to investigaeomplaints regardingthe Malaysianjudiciary, and askingthe Chairmanto
bringhis concerns tothe attention ofthe Prime Ministerof Malaysia.(DossierNo. 9).
10. On 1March1996,the SecondReport ofthe SpecialRapporteur(ElCN.411996137w ) asissued
containinga section (paragraphs 158-165) on alaysia similar incontentto the informationconveyed
in the interview mentionein paragraph15below. Paragraph152of the same report indicates that the
Special Rapporteuralsogavea press statementon HongKong.(Dossier No. 10)
11. On 18February 1997,the ThirdReport ofthe SpecialRapporteur(ElCN.411997132w )as
issued also containina section (paragraphs 122-134)n Malaysiaand reportingon the litigation
againsthim in theMalaysiancivil courts. Paragraphs32-34 ofthe samereport containreferenceto
the promotionalactivitiesof the Special Rapporteur, including presisnterviewsin Sria.
Paragraph39 containsthe Special Rapporteur'spress statementon his preliminary observatioon his
missionin Peru. (DossierNo. 11).
12. Inits resolution1997123of 11April 1997 (seeDossierNo. 7 above), the UnitedNations
Commissionon HumanRights decidedto extendthe mandate ofthe SpecialRapporteuron the
independenceofjudges and lawyersfor a further periodof threeyears.
ti
'
13. On 12February 1998,the Fourth Report ofthe SpecialRapporteur(ElCN.41199813a 9nd
Add.5)was issued alsocontaininga section (paragraphs106-116)on Malaysiaandreportingon the
statusof the litigation. (DossierNo. 12)
MATERIALS RELATING TO THE LAW SUITS AGAINSTTHE SPEW RAPPORTEUR
B.
14. On24 August1995,an articlein a Malaysiannewspaper(DossierNo. 13)reported thatthe United
Nations Special Rapporteurn the independenceof judgesandlawyers willbe investigatingrecent complaints
of manipulation ofthe Malaysiansystemofjustice andreferredto a statementhe had made oncomplaints
about manipulation othat system.
15. In November1995,anarticle"MalaysianJusticeon Trial"waspublishedin the Britishmagazine
International CommerciaLlitigation, containingquotesroman inte&ew given byDato' Param
Cumaraswamyto the author. The article identifiesDato'PararnCumaraswamy as the Special Rapporteuron
the independence ofjudges and lawyersanddescribesthe mandategiven to himby the UnitedNations
Commissionon HumanRights. (DossierNo. 14). 16. In threeletters dated 18December 1995(DossierNo. 15),a lawfirrnrepresenting twocommercial
companiesindicatesits clients'intentto institutedefamationproceedingsagainst Dato'aram Cumaraswamy
on the basis ofhis interviewand the wordsattributedto him in the Article "Malaysian Juson Trial". (See
DossierNo. 14above)
17. In a letterdated22 December1995,thelaw firmprivately retainedby Dato' Param
Cumaraswamynotifiedplaintiffs'lawyersof theSpecial Rapporteur's immunity fkomlegalprocess
undersection22 of theConvention. (DossierNo. 16)
18. On28 December.1995,the Secretariatof the UnitedNations issueda Note Verbaleto the
... Permanent Mission ofMalaysia inGenevarequesting that the competent Malaysian authoritiebse
advised,andthat theyin tum advisethe Malaysian courts,of the SpecialRapporteur'simmunityfiom
( 1 legalprocess. (DossieNo. 17)
19. By letter of 1March 1996,the UnitedNationsCentrefor HumanRights directlynotified
plaintiffs'lawyers ofthe SpecialRapporteur's immunitfromlegal process. (DossierNo. 18)
20. In a Note Verbaledated29 March 1996,theUnitedNationsLegalCounsel,having considered
the circumstancesof the interview andof the passagesof thearticlegivingrise to the defamation
proceedings,notified the Permanent Representativeof alaysiato the United Nationsof the
defamation proceedingsand asserted the Special Rapporteur's immunity(.DossierNo. 19)
21. On 12December1996,the High Courtof KualaLurnpurissueda Writ of Summons against
Dato' ParamCumaraswamyin two suitsfor 30 millionMalaysianRinggit each(US $ 24 milliontotal
at thethencurrentexchangerate) filedby plaintiffs.(Dossier No.20)
22. On3 January1997,the Directorand Deputyto the LegalCounselissued a letteraddressed
"To Whomit MayConcern"notifying the competent Malaysian authoritiesthat the UnitedNations
wasmaintaining theimmunity from legal processof its SpecialRapporteur. (DossierNo. 21)
( 23. On 6 January1997,the Directorand Deputyto the LegalCounsel re-issued theletter
addressed"To Whomit May Concern"to refer to the HighCourt of Kuala Lurnpur andthe docket
number of the civil suit.DossierNo. 22)
24. On 9 January1997, Dato' Param Cumaraswamy filedan application withthe High Court of
KualaLurnpurfor leaveto enter a ConditionalAppearance.(DossierNo. 23)
25. On 10January1997,the Court granted leave for ConditionaA l ppearance(DossierNo. 24) and
Dato' ParamCumaraswamyfiled an affidavit (DossieN r o. 25) bringingto the Court's attentionhis
inxnunityfiom legalprocessof any kindin respectof wordsspokenor written and acts done byhim
in the courseof theperformance ofhis mission. The affidavitmadereferenceto and annexedthe
lettersandNote Verbalesissuedbyhis law firm t,e Secretariat ofthUnitedNations,the Centrefor
HumanRights, andthe Legal Counselof the UnitedNations. (see Nos.17, 18, 19 and 20above)
26. In a Note Verbaledated 14January1997,the PermanentRepresentativeof Malaysia informed
the LegalCounsel thatMalaysian legislationhadbeen adoptedto give effectto the Conventionand
that Malaysianlaw requiresits courtsto take judicial noticeof that Malaysianlegislation.
(DossierNo. 26) 27. On 15 January1997,the Legal Counsel addressed a Note Verbaleto the Permanent
Representativeof Malaysia re-assertingthe SpecialRapporteur's immunity from legal processand
indicating that,underMalaysianlaw, the courts havean obligationto takejudicial notice ofthe United
Nationsassertionof its Special Rapporteur'simmunity &omlegalprocess. (DossierNo. 27)
28. On 5 March 1997,theDirectorand Deputyto the Legal Counselmet with the Acting
PermanentRepresentativeof Malaysiato discussthe possible amendmentof the Certificate of
Immunityto be issuedby Minister for Foreign Affairsof Malaysiato adequatelyupholdthe privileges
and immunities enjoyedby the Special Rapporteurunderthe Convention. (DossierNo. 28)
... 29. On 7 March 1997,the Secretary-General issued a certificateof immunity addressed"To Whom
It MayConcern1'i,n whichhe confirmedthat he haddetermined thatthe wordswhichconstitutethe
' i basisof plaintiffs'complaintwere spokenby the SpecialRapporteur in the course ofthe performance
of hismissionand thatthe Secretary-Generaltherefore maintainsthat Dato'Param Cumaraswamyis
immunefiom legal process with respectthereto. (DossierNo. 29)
30. On 11March 1997,Dato'ParamCumaraswamyfiled a fbrtherAffidavit in the HighCourtof
KualaLumpurtransmittingtheSecretary-General's Note Verbaleof 7 March 1997. (DossierNo. 30)
3.1. On 12 arch ~1997,the MalaysianMinisterfor ForeignAffairs issueda Certificate of
Immunitywhichdid not referto the Note Verbaleissued bythe Secretary-Generalon 7 March 1997.
(DossierNo. 31)
32. In a letter dated 14April 1997,the UnitedNations Legal Counsel informed the Permanent
Representativeof Malaysiathat, despitethe certificationmadeby the Secretary-General andthe
Minister forForeign Affairs,the competentMalaysiancourtswere holding hearingson the question
whetherDato' ParamCumaraswamy wasacting within the courseof the performanceof his mission.
TheLegalCounselcalledupon Malaysiato ensurethat no Malaysian court undertaketo consider
whether ornot the Secretary-General's determinationis conclusiveas to the official functionsof a
UnitedNationsexperton mission. (DossierNo. 32)
[ 1
33. On 2 May 1997,the LegalCounseladdresseda Note Verbaleto the Permanent Representative
of Malaysiarequestingan amendmentof, or supplementto, the Malaysian ForeignMinister's
Certificate torefer to the Secretary-General's exclusive authorio determine whetherthe Special
Rapporteur wasimmunefrom legalprocess with respectto the words givingrise to the complaint.
(DossierNo. 33)
34. On 30 May1997,the Chairmanof the Fourth Meeting of Special Rapporteurs1
Representatives/Expertasnd ChairpersonsofWorkingGroupsof the Commissionon HumanRights
andof the AdvisoryServices Programmeswroteto the Secretary-General urginghim to invoke
Section30 of the Conventionfor a requestto be madeto seek an advisoryopinionfiom the
InternationalCourtof Justice. (DossierNo. 34)
35. On 28 June 1997,a Judge ofthe High Court ofKualaLumpur concludedthat the Secretary-
General'scertification forthe Special Rapporteur's immunity fiom legalprocesswasmerely an
opinion whichis not bindingon the Courtandthat shehadjurisdictionto hear the case. She ordered
Dato' Param Cumaraswamyto file a substantivedefence within two weeks. (DossierNo. 35) 36. On 30 June 1997,the ActingHighCommissioner forHumanRightsissueda Press Statement
in Genevaexpressing concernthat the decision reached bythe High Court of KualaLumpurpresentsa
dangerousprecedent, undermining the privileges anidmmunitiesof all special rapporteurs of the
Commissionon Human Rights, anda serious threatto the entirehumanrights system.(DossierNo. 36)
In a Note Verbale dated30 June 1997,the Legal Counselinformedthe Permanent
37.
Representativeof Malaysiaof the UnitedNations' viewson the High Court's judgemeno t f
28 June 1997. (DossierNo. 37)
38. On 7 July 1997,the Legal Counseladdressed another NoteVerbale(DossierNo. 38) to the
... PermanentRepresentativeof Malaysiaconcerninghis Government's obligation to staytheproceedings
pendingthe resolutionof the differencethathad arisenbetweenthe United Nationsand Malaysia.
( 1
39. On 8 July 1997,the UnitedNationsLegal Counsel addressed yet anothelretter to the
PermanentRepresentativeof Malaysia notifyng him of the potentialrecourseto the International
Court ofJusticethroughthe GeneralAssembly. (DossierNo. 39)
40. Also on 8 July 1997, theChairman ofthe FourthMeetingof Special Rapporteurs1
. RepresentativesIExpertand Chairpersonsof Working Groups ofthe Commissionon HumanRights
andof the AdvisoryServicesProgrammes wroteto the Secretary-Generalagainurginghim to invoke
Section30 of the Conventionfor a request tobe made to seekan advisory opinion fiom the
International Courtof Justice.(DossierNo. 40)
41. On 9 July 1997, a newplaintiffserveda second Writof Sunxhonsand Statementof CIaims
againstthe SpecialRapporteurin an amount of MR 60 million(US $ 24 millionat the then current
exchangerate). (DossierNo. 41)
42. In a letter dated 10July 1997,theUnited Nations Legal Counsel notifiethe Pennanent
Representativethat a new lawsuithad beenfiled againstthe Special Rapporteur. (DossieNr o. 42)
i 1 43. On 11July 1997, the Secretary-Generalissueda second certificateof immunity inconnection
with thenew suit (DossierNo. 43) whichwastransmitted, inthe form of a NoteVerbalewith a
coveringletter signedby the Secretary-General,to the Permanent Representativof Malaysia.
(Dossier No.44)
44. On 20 October1997,the Courtof Appeals deliveredits opinion denyingDato'Param
Cumaraswarny'sappealwith costsandupholdingthe High Courtjudgment of28 June 1997. In its
opinion,the Courtof Appeal concludedthatit was for the Malaysiancourts to determinein which
capacityDato' Param Curnaraswamyhad spokenthe wordsgiving rise tothe complaint,and if in his
officialcapacity,whetherhe had exceededhis mandatein doing so. (DossierNo. 45)
45. On 23 October 1997,new plaintiffs serveda third Writ of Summonsand Statementof Claims
againstthe SpecialRapporteurfor MR 95million (US $40 million at the then currentexchangerate).
(DossierNo. 46)
46. On 27 October 1997, the Secretary-General issueadthird certificate ofimmunityaddressed
"ToWhomIt MayConcern". (DossierNo. 47)47. On 30 October 1997,the Legal Counseladdresseda Note Verbaleto the Permanent
Representativeof Malaysiaconcerningthejudgmentof the Court ofAppealand assertingthe Special
Rapporteur's immunity fkomthe latestlawsuit. (Dossier No.48)
48. On 7 November 1997, theSecretary-Generaladdresseda letterto the Prime Ministerof
Malaysiaconcerningthe difference arisingbetweenthe United Nationsand the Governmentof
Malaysia andsuggesteda possible resortto theInternational Courtof Justicethrough the General
Assemblypursuantto Section30 of the Convention. (DossierNo. 49)
49. On 21 November 1997, newplaintiffs serveda fourth Writof Summonsand Statementof
Claims againstthe SpecialRapporteurin an amount of MR60 million (US $24 millionat the then
current exchange rate). (Dossir o. 50)
50. On the sameday, 21 November 1997,the Secretary-Generalissueda fourth certificateof
immunityaddressed"To WhomIt MayConcern". (DossierNo. 51)
51. On 25 November 1997,theLegal Counseladdresseda Note Verbaleto the Permanent
Representative of Malaysia transmitting the Secretary-Generl's November1997 assertionof the
Special Rapporteur's immunityEromthe latest lawsuit. (Dossir o. 52)
52. On 27 November 1997,thelaw firmrepresentingDato'ParamCumaraswarnyappliedto the
Chief Justice ofMalaysiafor an early hearing foran application forleaveto appealto the Federal
Court. (DossierNo. 53)
53. On 16 December 1997,the High Commissionerfor HumanRights issueda Press Release in
Genevareiteratingthe importancethat the internationalhumanrights community attachedto the
privilegesand immunitiesof SpecialRapporteursof the Commissionon HumanRightsand urgingthe
Governmentof Malaysiato implementfullytheprovisionsof the Conventionas a key component of
international law. (DossiNo. 54)
54. On 19February 1998,the Federal Courtof Malaysia deliveredan oral ruling denyingDato'
ParamCumaraswamy'sapplication forleave toappealstatingthat "we arenot dealing witha
sovereignor a full-fledged diploma...he is someonecalleda Rapporteur who hasto act,in the
present case,within amandate of,in layman'sterms an unpaid, part-timeprovider of information."
(DossierNo. 55)
C. MATERIALSRELATINGTOTHEPROCEEDINGSLEADING
TOTHEREQUESTBYTHECOUNCILFOR AN ADVISORY OPINION
55. Ina letter dated 13March 1998, theGovernment ofMalaysia indicatedits desireto reach a
settlementof thematteroutsideboth the nationalcourts andthe InternationalCourt of Justice
followingthe visit by the Secretary-General'sSpecial Envoy,itreYvesFortier, to KualaLurnpur
on 26-27February 1998.(DossierNo. 56)
56. Between12March and 23July 1998,intensive effortsto settle the matteramicably failedto
achieve anyresult save the postponement ofall proceedings inthe fourlawsuitsuntil September
1998.'
The documentsrelatingto the effortsof the United Nationsandthe Government ofMalaysia
to reacha negotiatedsettlement arenot includedin the Dossier. 57. On29 May 1998,the Fifth Meeting of Special Rapporteurs/Representati aves~Experts
Chairpersonsof Working Groupsof the Commissionon HumanRightsand of the Advisory Services
Programmesadopteda statementon the "JudicialHarassmentof a SpecialRapporteur" whichwas
madepublic in Genevaand New York. (DossierNo. 57)
58. On 18June 1998, theAssistantSecretary-Generalfor Legal Affairs advisedthe Permanent
Representativeof Malaysiathat unlessthe Governmentof Malaysiarespondedto the draft settlement
agreement which had been previously transmittedto himby the Organization,the Secretary-General
could not avoid referring the matterduringthe upcomingsessionof theEconomic andSocial Council
and requestingit to seekan advisory opinionfkomthe InternationalCourtof Justice.(DossierNo. 58)
_I-.
59. Between24 -26 July 1998,The Secretary-General's SpeciaE l nvoy,MaitreYves Fortier,
!' i undertooka secondvisit to KualaLumpur for meetingswith the Attorney-Generalin which he
concludedit would not be possible eitherto settle the matter amicably orto jointly submit thematter
to the Economicand Social Councilto request an advisoryopinion fiom the International Courtof
Justice.*
60. On28 July 1998,the Secretary-General issued a note inthe Economic and SocialCouncil
entitled "Privilegesand immunitiesof the SpecialRapporteurof the Commissionon HumanRightson
the independenceofjudges and lawyers". (DossierNo. 59; El1998194)
61. On 30 July 1998,MaitreFortier reported to the Secretary-General indicatingMalaysia's
agreement thatthe matter shouldbe referred, although notjointly, tothe InternationalCourt of
Justice.*
62. On 3 August 1998,the Secretary-General issued an Addendum(DossierNo. 60;
Y1998/94/Add.1)to his Note (see DossierNo. 59 above)informingthe Councilthat, on 1August
1998, Dato' PararnCumaraswamyhad receiveda Noticeof TaxationandBill of Costs, dated28 July
1998, indicatingthat costsfor the applicationin FederalCourt would beassessedon 18 September
1998andthat, on the sameday, he hadalso receiveda Noticeof Taxationand Bill of Costs,dated 29
i I July 1998, indicating that plaintiffs'costsfor the Courtof Appealwouldbe assessedon 4 September
1998.
63. On 5 August 1998,at its resumed substantive session,the Economicand SocialCouncil
adopted,by consensus, decision19981297 refmg the matterto the International Courtof Justiceand
callingupon the Governmentof Malaysiato stay alljudgementsand proceedingsin its nationalcourts
pendingreceipt of theadvisoryopinion. (DossierNo. 61)
* The documentsrelatingto the effortsof the UnitedNations andthe Government of Malaysia
to reacha negotiated settlement arenot includedin the Dossier. INTRODUCTION TOPART II
MATERIALS RELEVANTTOTHECQNVlENTION ONTEEPRIVILEGES AND
IMiWJNITIES OFTEEUNITEDNATIONS
64. In December 1945,the Preparatory Commission of tUnitedNations recommended,
-lia, in ChapterVIIof its Reportto the GeneralAssembly,that the Assembly,at its first session,
should makerecommendationswith aviewto determiningthe details ofthe applicationof paragraphs
- 1and 2 of Article 105of theCharter,or propose conventionsto the Membersof the United Nations
for that purpose. It alsotransmitted,in AppBnto the Charterdraf conventionon privileges
( ) and immunities(DossierNo. 62, AppendiB). Theprivilegesand immunities of the"Representatives
of Members"and "Officialsof the Organization"werecontained respectively in 5 and 6 of
the draRconvention. Thdraf did not contain an articleon "expertson missions"or provisionsof a
similar nature,but Article 7, paragrapherred to facilitiesto beaccordedto "expertsand other
personswho,though not officialsof the UnitedNations,have a certificatethat they are travellingon
businessof the Organization". Article 11containeda settlementof dispute clause almost identicatlo
. that later includedin Section 30 of the Convention. (exceptinstntence)
65. The GeneralAssembly,at the sixteenthplenarymeeting of thefirst part ofits session,held on
19 January 1946,eferredto the Sixth (Legal)Committeefor considerationand report ChapterVII of
the Reportof the Preparatory Commission.The Committeeat its 6th meeting heldon 24 January
1946 appointeda Sub-committeeon Privilegesand Immunitiesto considerthe matter.
(DossierNo. 63)
66. On 28 January 1946,at the 7thmeeting of theSixthCommittee,the Sub-committee
recommended,interalia to the SixthCommitteethatthe General Assemblyshouldproposeto the
Members ofthe UnitedNationsa generalconventionwhich woulddeterminethe details of application
of paragraphs1 and 2 of Article 105of the Charter. (DossierNo.he SixthCommittee
1 unanimouslyadopted therecommendationof the Sub-committee.m.)
67. The Sub-committeeprepareda seriesof documents concerninthe privileges and immunities
of the UnitedNations,amongthem a resolution relatingto the adoptaGeneralConventionon
PrivilegesandImmunities,to whichthetext of the draftConventionwasannexed. These comments
were submittedto the SixthCommitteeon 7 February 1946(DossierNo. 65). his Reportto the
Sixth Committee,the Rapporteur stated thatthe discussionof the Conon Privileges and
Immunitieswasparticularly "exhaustiveand thorough" and thatthe text had been approved
unanimously bythe Sub-committee. Duringits discussionthe Sixth Committee,some delegations
expressedobjectionsithrespectto Sections18 and 30. Wile the entire ArtVIl(Expertson
Missions)wasnew, no special reference wasmade to it in the Report ofthe Sub-Committeeor in the
discussion ofthe Sixth Committee, nor wasreanyexplanationof the origofthatprovision.
Before adoption,only minor amendmentwas madeto Section14in order toclarifthe text, this
beingthe onlyamendmentmadeby the SixthCommittee @@. At its 1lth meeting held on 7
February 1946,the Sixth Committeeunanimouslyadoptedthedrafrecommendation concerning the
Conventionon Privilegesand Immunities..) 68. At its 31stmeeting,held on 13February 1946,the GeneralAssembly considered theReport of
the SixthCommittee (DossierNo. 66). Whilesome provisions ofthe Conventionwere commented
upon (including ArticleI, Section30), no delegationscommentedon any part ofArtVI,nor
was any amendmentproposedthereto (DossierNo. 67). The GeneralAssembly,without a vote,
adoptedresolution2oA by whichit approvedthe annexed Conventionon the Privilegesand
Immunitiesof the UnitedNations, as recommendedby the Sixth Committee,and proposedit for
accessionby eachMember ofthe United Nations. (Dossir o. 68)
69. DossierNos. 69 and70 containa list of participantsand factualinformation (accession,
succession,and reservations) concerniConvention onthe Privileges andImmunitiesof the
.,- UnitedNations. It shouldbe notedthat there are 138Partiesto the Convention,includingMalaysia
which accededto the Conventionon 28 October1957.
(
MATERIALSRELATING TO THEPRACTICEOF THEORGANIZATION IN =LATION
TO TEE ASSERTIONANDWAIVER OFFUNCTIONALPRIVILEGES AND IMMNNITIES
UNDERTHE CONVENTIONON THE PRIVILEGESANDIMMUNITIESOF THE UNITED
NATIONS
A. OPINIONS PUBLISHED IN TEE UNITEDNATIONSJURIDICAL YEARBOOK (UNJY)
70. On 10 July 1963,in an internalmemorandum, the Officeof Legal Affairs,relying on the
pronouncement oftheICJin the ReparationsCase(I.C.J.Reports,1949,pp. 183-184),emphasizedthe
importance ofthe protection affordedto its staff and agentsby the UnitedNationsprivilegesand
immunitiesand the vital importanceto staff thatthis United Nationsprotectioncanbe relied upon.
(DossierNo. 71; 1963NJY 191-192)
71. On 11 July 1963,in an internalmemorandum,the Office ofLegal Affairs emphasized the
obligationof the Secretary-Generalto waive immunitywhereactswerenot connectedwith official
dutiesandthat thiswasthe practice ofthe Organization.(DossierNo. 72; 1963UNJY 188)
72. On22 October 1963,in an Aide-Mhoire to a MemberState,the Office of Legal Affairs
pointed outthat the functional immunity of eon missions for the Organizaapplies to
nationalsof a MemberStateperforming officialions in thatState.This flows&omboth the
languageof Articles 100 and105of the Charter and Articlethe Convention.(DossierNo. 73;
1963 UNJY 188-191)
73. On3 November1964,in an internalmemorandum,the Officeof Legal Affairsnoted that the
Secretary-Generahasthe right and the dutyto waive immunitywherethat immunitywould impede
the course ofjustice and wherethat immunitycanbe waivedwithoutprejudiceto the interestsof the
United Nations.(DossierNo. 74; 1964JY263) 74. On 6 December 1967 the LegaC l ounselmadea statementto the SixthCommitteeon
privilegesand immunitiesof the UnitedNations notingthat the grantingof privileges and immunities
necessary forthe exerciseof officialunctionsis mandatoryon MemberStatesby virtue of Article 105
of the Charter. The Conventiondefinesthe immunitiesdeemedessentialin all Member Statesand
each MemberState is, in accordance withSection34, boundto give effectto thoseprivilegesand
immunities. (DossierNo. 75; 1967 UNJY 311-314)
75. On 15May 1968, inan internalmemorandum,the GeneralCounselof United NationsRelief
and Works Agencyfor PalestineRefugees inthe Near East (UNRWA),a subsidiaryorgan of the
UnitedNations,noted tha privilegesand immunitiesof officials,including locallyrecruited staff,were
, granted for the benefit ofthe Organization. Thisprotectionensures that UnitedNations staff are fiee
fiom local influenceor pressure in the performanceof their duties. The Secretary-General will only
( 1 assert immunity for official acts an, herethere is an abuseof immunity, the Secretary-General has
the right and duty to waive theimmunityif it impedesthe administrationofjustice andif the
immunitycanbe waivedwithout prejudiceto the interest of theUnitedNations. (DossierNo. 76;
1968 UNJY212-215)
76. On 11July 1969, inan internalmemorandum,the Officeof LegalAffairsnoted that the
authorityto waive privilegesand immunitieswas vestedexclusively inthe Secretary-General.(Dossier
No. 77; 1968UNJY224-225) .
77. On 1 April 1974, ina letter tothe Assistantof the Secretary-Generof another international
organization, the Office ofLegalAffairs notedthat under section20 of the Conventionit would
alwaysbe incumbentupon the Secretary-Generalto waiveimmunityfrom arrestor prosecutionof a
staffmember where,in his opinion, theimmunitywould impedethe course ofjustice andwherethe '
immunitycan be waivedwithout prejudiceto the interests of theUnited Nations.(DossierNo. 78;
1974UNJY 188)
78. On 21 October 1975,in an internalmemorandum,the Office ofLegalAffairs reaffirmedthat
the Conventiongavethe Secretary-Generalthe right andthe dutyto waivethe immunityof officials
i i where,in his opinion, assertion of that immunitwouldimpedethe course ofjustice andwherethat
immunity couldbe waivedwithout prejudiceto the interests of the UnitedNations. The Office also
notedthat, in caseof a disputewith a MemberStateon this question,the HeadquartersAgreement
with that MemberState providedfor resortto arbitration. (DossierNo. 79; 1975 UNJY 188-190)
79. On 24 December1975,in an internalmemorandum,the Officeof LegalAffairsnoted thata
staffmember may notwaivehis own immunityand that suchimmunity may,bewaived only bythe
Secretary-Generalin conformity with section 20of the Convention. (DossieNo. 80; 1975 UNJY 190-
191)
80. On 11February 1976,in a letterto the Permanent Representative of a Member State,the
Officeof Legal Affairs emphasizedthaitt was exclusivelyfor the Secretary-Generalto determinethe
extentof the authority,dutiesand functionsof United Nations officialsand that these mattersnriot
be subjectto scrutinyin nationalcourtsfor, if this werepermitted,a massof conflictingdecisions
wouldbe inevitable giventhe many countries in whichthe Organizationoperates. Pursuantto the
Convention, differencesbetweenthe view of the Secretary-General and that of a Member State onthe
extent of immunityare to be decided byan advisoryopinionof the ICJ. (DossierNo. 81); 1976UNJY
236-239)81. On 18August 1976,in an internalmemorandum, theOffice ofLegalAffairs noted that
officials,other than thoseat the rankof Assistant Secretary-Glnd above,had immunity onlyin
respectof official actsandit was for the Secretary-Generalto determine whetherthe immunity should
be asserted orwaivedin accordancewith Staff Regulation1.8.(DossierNo. 82; 1976JY207-208)
82. On 12December1977, ina letterto the Legal Liaison Officerof the United NationsIndustrial
Development Organization,the Officeof LegalAffairs again emphasizedthit was for the Secretary-
Generalaloneto decidewhatconstitutes an official actwithinthe meaning of theConventionand
whento invoke andwhento waivethat immunity. (DossierNo. 83; 1977 UNJY 246- 248)
83. On 1December 1981in a statementto the Fifth Committeeof the General Assembly, the
LegalCounsel noted that subjectia staffmemberto legalprocesspreventedthe Secretary-General
fkomexercising hisright underthe international legal instruments io independentlydetermine
whetheror not an official acthad beeninvolved. Wherea determinationwasmade that no official act
was involved,the Secretary-Generalhad, by the terms ofthe Conventionon the Privilegesand
Immunities ofthe UnitedNations,both the rightand duty to waivethe immunityof any official. It
wasnot the intent of the provisions regarding immufrom legal process orthe principleof
functional protectionto place officials above tbut to ensure, beforeany action wastaken
againstthem,that no officialact wasinvolvedand that no interestof the Organization was prejudiced.
(DossierNo. 84; 1981UNJY 161-162)
84. On 5 April 1983, ian intemalmemorandum, the Office of Legal Affairsagainemphasized
that the UnitedNationshasconsistently maintainedthat it is exclusively withinthe competence ofthe
Secretary-Generalto determinewhenanact is carriedout in an official capacityand that this is not a
matter whichis subjectto reviewby the local authorities. The Oalsonotedthat, under section
29(b) of the Conventiontl ; kitedNations shall make provisifor appropriatemodes of settlement
of disputesinvolvingany officialof the United Nationswhoby reasonof his officialposition enjoys
immunity,if that immunityhas not been waived bythe Secretary-General.(Dossier No. 85;1983
UNJY 214-215)
85. On 28 February 1984,in a memorandumto the LegalAdviser ofthe United NationsRelief
andWorksAgency forPalestineRefugeesin theNear East,the Office of LegalAffairs indicatedthat
it is not necessaryforternationalorganizationsto claim the immunitiesto whichthey are entitled
since such immunity existas a matter oflaw and is a fact ofwhichjudicialnotice must betaken. The
memorandumalso confirmedthe practicethat a suggestionof immunityis normally madeto a court
on behalf of an international organizany the competent executiveauthoritiesof the States
concerned (DossierNo. 86; 1984NJY 188-189).
86. On 22 May 1985,ina letterto the Permanent Representative ofa MemberStatetheOfficeof
Legal Affairsagainemphasizedthatit was for the Secretary-Generalaloneto determinewhether an
activitywas an officialact. The Secretary-Generalwas underan obligationto cooperatewith the
national authorities toensurethat therewasno abuseof the privileges andimmunitiesof the
Organization. (DossierNo. 87; 1985JY 154-155).87. On 29 January 1991,in a memorandum tothe Executive Director ofUnitedNations
Children'sFund (UNICEF),the Office ofLegalAffairs noted thatthe Organization shouldnot plead
its immunityin national courts asit was the responsibilityGovernment, andnot the United
Nations,to communicate with otherbranchesof the Governmenton the internationallegal obligations
of the MemberState. (DossierNo. 88; 1991UNJY319-320)
88. On 5 April 1991,in a memorandumto the Director, Division of Personnel f NICEF,the
Office ofLegalAffairsreaffirmedthat, undersection20 of the Convention,the Secretary-Generalhas
the right and the duty towaivethe immunity ofany officialwhere,in his opinion, thatimmunity
wouldimpedethe course of justice andwherethat immunity canbe waivedwithout prejudiceto the
interestsof the UnitedNations.(DossierNo. 89; 1991NJY327-328)
89. On 23 January 1992,in a memorandumto the SeniorPolicy Officer(Legal), Divisionof
Personnel in the United Nations DevelopmePtrogramme (UNDP), the Office of Legal Affairs noted
that waiverof immunityof an officialonly arises if therewas an official actand it was for the
Secretary-Generalto determineif there wasan official act and,if so, whetherto assertor waive
immunity. (DossierNo. 90; 1992UNJY481-483)
B. UNPVBLISEIED OPINIONS
90. On 5 May 1982,in an internalmemorandum, the Office ofLegalAffairs emphasizedthat
sinceprivilegesand immunities of United Nations officials attatt the individualbut to the
Organization,only the Secretary-General mwaive the immunityof thoseofficialsand the execution
of sucha waiverrequiresthe express authority ofthe Secretary-General(DossierNo. 91)
91. On 2 April 1984,in aninternalmemorandum,the Office ofLegalAffairs noted thatthe
Secretary-Generalhad agreedto a waiver of immunity,at the requestof the Departmentof Justiceand
Policeof Geneva, ofa senior staffmemberin respectof actions arisingm personalloans(Dossier
No. 92)
92. On 23 July 1984, the Secretary-General informethe Ministerof ForeignAffairs of a
MemberState thathe had decidedto waivethe immunityfiom legalprocessof a staff member,in
order notto permit thestaffmemberto shelterbehindthat immunityin connectionwith litigation
relatingto his privatedebts(DossierNo. 93)
93. On 8 January 1985,in an internalmemorandum,the Officeof Legal Affairs advisedthat no
immunity wouldbe invokedby the Secretary-Generalin an action against an officialin relationto an
action againshim whichhadno connection with official duties. (DosNo. 94)
94. On 31 May 1988,in a letterto the insurance carrier forthe Organization, the Officeof Legal
Affairsnotedthat theConventionrequires thatthe UnitedNationsprovideappropriatemodes of
settlementof privatelaw suitsto whichthe Organizationis party andthe insurancepolicy provicied
sucha mechanism and thu permitswaiverof immunity&omsuitto enableadjudicationof a claim
(Dossier No.95). 95. On 17 November 1989, in an internalmemorandum,the Office of LegalAffairs notedthat
the Secretary-Generalhad decidedto waivethe immunityof a staff member,in response to arequest
by a Government, in relationto the staff member's activitias the administrator ofa bank account.
(DossierNo. 96).
96. On 19 March 1990, in an internalmemorandum,the Office ofLegalAffairs emphasizedthat
the decision whetherto waiveimmunity of officialswasa decisionfor the Secretary-General aloneto
make. (DossierNo. 97)
97. On 18May 1992,in an internalmemorandum,the Officeof Legal Affairs noted thatStaff
..- Regulation1.8of theUnitedNationsStaffRegulationsprovided,inter alia, that "in any casewhere ...
privilegesand immunities arise, the staff membesrhall immediatelyreport to the Secretary-General,
i with whom alone it rests to decide whether they shall e waived"(DossierNo. 98).
98. On 26 April 1993, ina letter to aPermanent Mission, the Office of Legal Affairs, statdat
the Secretary-Generalhad decidedto waivethe immunity ofan officialand his family to enable
divorce proceedingsto proceed.(DossierNo. 99)
99. On 24 January1995,in a letter to aPermanentMission, the Office of Legal Affairr seminded
the Mission of ''long-lastingand uncontestedpractice[of the Organization]that the competenceto
determinewhatconstitutesan "official"or "unofficial"actperformedby a staffmemberis vested
solelyin the Secretary-General" andthat it was notacceptable thatthe questionof whetherthe acts
concerned wereofficial actswouldbe determinedby a nationalcourt.(DossierNo. 100)
100. On 20 September 1995, ina letterto a GovernmentalCommissioninresponseto subpoenasad
testificandurnissuedby that Commission,the Officeof Legal Affairsstatedthat the privilegesand
immunitiesaccorded underthe Convention werebeing maintained as the proceedingsrelatedto official
acts of the staffconcerned.(DossierNo. 101)
101. On 25 February 1998, ina Note Verbaleto the Ministerof Foreign Affairs ofa MemberState,
1 ) the Secretary-General informed the Governmentthat, underthe Convention,it was exclusively forthe
Secretary-General,andnot the Government,to determine whether certainwordsor actionsof an
experton missionfell withinthe performance ofthatexpert's missionfor the UnitedNationsand
that, in orderto enablesucha determinationto be made,the Secretary-Generalrequested urgentaccess
to the experton missionconcerned.(DossierNo. 102)
102. On 27 April 1998,in a Note Verbaleto the Permanent Representative of a MemberState, the
Secretary-Generalconfirmedthat immunityiiom legalprocesswasonly functionaland observed that,
as the Governmentdid notpermit accessto the experton mission untilafterhe was pardoned(seethe
precedingparagraph),the Secretary-Generalwas unableto take a decisionon whetherthe actions
leadingto the arrest and convictionwere indeedrelatedto his officialdutiesuntil after his pardon.
(DossierNo. 103)
103. On 27 April 1998,ina letter to theexperton missionreferredto in the preceding two
paragraphs,the Chefde Cabinet informedthe experton missionthat the Secretary-Generalwas unable
to assert immunityin respectof the actionswhichled to his arrest and convictionsincetheseactions
werenot relatedto his mandateas an experton mission.(DossierNo. 104) C. RELEVANT LEGISLATIYE INSTRUMENTSAND SECRETARY-GENERALREPORTS
104. Staff Regulation1.8,(Dossier No.105),establishedby the General Assembly in accordance
with paragraph 1, article 101of the Charterof the UnitedNationsprovides,in part, thatln any
casewherethese privileges and immunities ariset,he staffmembershallimmediatelyreport to the
Secretary-General,with whom aloneit rests to decidewhetherthey shall be waived".
105. General Assembly resolutionsentitled"respectfor the privileges and immunities of officialosf
the UnitedNationsand the specialized agenciesandrelatedorganizations"(DossierNos. 106-112)
Resolution361232of 18December1981 (DossierNo. 106)
( I Resolution411205of 19December1986(DossierNo. 107)
Resolution42/219 of 10 February 1988 (DossierNo. 108)
Resolution431225of 21December1988 (DossierNo. 109)
Resolution451240of 8 February 1991(DossierNo. 110)
Resolution47/28of 25 November1992 (DossierNo. 111)
Resolution511227of 16May 1997(DossierNo. 112)
106. Reportsof the Secretary-General on "respecftor the privileges and immunitof officialsof
the UnitedNations and the specialized agenciesand related organizations" (Dossr os. 113-115)
A/C.5/36/31of 4 November1981(DossierNo. 113)
A/C.5/38/18of 25 October 1983 (DossierNo. 114)
A/C.5144/11of 2 November1989(DossierNo. 115) i d,
me Commissionan ban Riahtg,
$aided by articlee 7, 8, 10 and 11 of the universalDeclaratioa of rruman
~ightsandarticles 2, 4 and 26 of t.he In+Ze~?tio~l Covenant On Civil and
politicalRights,
I
i SpgvFaced that an independant ;md impaeial judiciary and an independent
legal profeeeion are enscntiel,prerequioiteefor the protection of humcul
right8and for eraeutiag that.thereia no discriminatioI nn the admiaistration
of justice,
the VienW Declarakion aPd Programme of Action
(~/CONF.3.57/2 3'adopted by the world Confezenca cn tlumn RighCs, ingarridar
Part T, paragraph 27 anU Part XI, parsgraphs 88, 90 aud 95,
I $tecalLinq its rcaolutions 1989/32 of 6 kch 1989.,1990/33 of
1 2 Mttrch 1990, 1991/39 of 5 March 1991, t992/33 of 20 FebrUary 1992 aab 1993/44
of 5 March 3.993,
&sallinrr almd General Asserakly resolution 45/166 oE 16 December 199a, in
I which the A984tr$ly welcomed the Basic Priaciples on the Role of Lawyersand
i tbe Guideline9 on tfreRoLe o£ Prosecutors adoptedby the Eighth Wred Natiolls
Coagresson the Breventicln of crime and t;he Treatment of Offrrindera end invited
V t e to tenpect them and to take them iato account within the frantevbrk
of their national legFelatrion an&practice,
pearins in mi- the priaciples contained %'the draft declauatioa on the
independcace kdd hparkiality of the judfcfary, jurors snd aeseseorsarrd the
irrdegepducce of lawyere (E/CN.Q/SU~ ./1968/20/Add.l and Add.l/Carr.l) ,
prepared by Mr. L.M. Siaghvi,the importance of which wae mated by the
Conrmieaion on Buman Rights, in its resolutien 1989/32 of 6 March 1989,
both the iaoreaeiq frequenoyof attacks on the:independence af
judges, lawyeta and court offfcialsand the link wach exiets between the
waake-g of safeguards for the judiciary and Sawyer8 and the gravityand
frepueacy of violationsof hiunraarights,
wrrme~ the fi- report on the independence of the judiciary and
0 1.
tke protection of practisinglawyere tB/Qr.4/Sub.2/1993/2S and Add.11,
prepared by Mr. Louis Joi.net, specfalRapporteur of the Sub-Camaisiricm on
Prevention of Discrimhation and Protection of ~inorities;
2. the recmendation of the Sub-Commission, as canZaiaed.itl
its resolution 1993/39 of 26 ~ugust 1993, to create a moaitoriag me&anLam 'lp
EoLlow up the questionof the independence aPd intp;~rtialltyaf the jaeciary,
particularly with regard to j-cs and lame, as well as courtofficible,
and the nature oL potentialthreatsto this independaace and iarparl;iallty; 3. Remests the mi- of the Conmissionto appoint, for a period of
three years, after c-atation with the other member8 of the Bureau,a
special rapporteurwbsP, -?date will consisr,of the following tasks:
(8) To hqcirp_ in=o say s&stantial allegatioaetransmitted to him or
he= and report his or her conclvsions thereon;
(b) To identifyafd record not ooly attacks on t&~ independence of the
judiciary,lawyereand cwrt officials but alsoprogress achieved in
protectingand enhanchg their independencea ,nd make concrete recommendatians
includingthe provision, of ad~ecjq sedces or technicalassistance when they
are regueated by the State concerned:
(c) TO Study, fox the purpose of making proposals,importantand
Co~icalqueetianeof principle vith a view to protoctirq and enhancingthe
inhpenwce of the jmciary and la-rn;
4, uraea ail we-ts to ~BS$.B~ the Special Rapporteur in the
diecharge of his or her ma to transmit to bim or her alk the
iniormatfan requested;
5. Remeets the Swcial ~agorteur to submit to the Conmission,
startingwithicefifty-fira teesiopl,g repert on the activitierj connected
with hie or her -tap
6. Reaueete ebt ~emet;~+y-wtrd, withia Eht?limits a£ the resour~es
of the UnitedMatione,to providethe Special Rapporteur with say asa%stance
needed far the discharge of bj.8or her mandate;
7. D- to ccrnsider f~lis question at its fifty-firstsessiaxa;
8, ~eeeminends th followfng &aft decision to the ~corwmic end Social
Counoi% for adoptLon;
[Forthe tern, see cup. I, secc. B, draft decision 11 .I
azfe meeting
~ c h 1994
. [Mnpted withouta vote. See chap.X.1. ."';':y,g
.:,=:y:
2 :.;.,,
",
His Exco1lcr1cM yr. lbtahimaFall
- Assistant Secretary-Genefa1 far HumanRights ..
Pdais desNatio~ls ..:.
....
CH - 1211 GENEVA
/' SWITZERLAND . .
..) . ... ~mc . . Rqfcrence
21st April 1994 DTOIJS-2192
:. '. ,
(. Mr ~ssis tanr Secretary-Ge~~efaE,
1 have thehonourtoinform you that afterample reflection andtaking into account the
discussionshdd duringourbureaumeetingsimmediatelyfollowing the 50th session of the
Com~nission on XIuma nights;Ihavc decided to appoint Mrs,Radhika Coon~aranwam yrom ..
Sri tanka as spacial rapporteur on vicrlenceagainst.women, including its causes and
c'ailsequenes, and Data Param Cumamwarny fromMalaysia as specialrapporteur on the
indcpcndcncea .nd impartiality OE ikc judicimy. X am confid~nt that both tltdidatcs
meet thr~necessxy requil-crrtait s f;t:dt?lxndency c,umpeitenceand experience for the .
fuIfi[nwn otf tl~cscimporrait saa:.!da!i.:s i 1:;iivealso takes into account therccornmmdatian
of the Commission :O Z~~LICE- , s 3r os possi';te,rlwcurrentin~balance in the geographical '. ,:;!,'$:..;,
clisrributim Of special r'dppo~?eu ap~eintrnentsP . lme And endosed the cumculumvitae of . ......,::.
both candidate$. T am happy to inform you that they have accepte td eirappointment, t. ,....
... . ,...
As is customary, a copy ofthis Idler has been sent to the members of thebureau.I would
bemostgratefu iflyou coulid nfortnthe regionalcoordinators as we11 as the PermBnsnt , .
I Representatives of Sritanka and Malaysiaofthus0appointtnentsI. wauldalso rqucst the . . . '
. . .' .
Secretaria tcr draft a formal communication to both cmdidatcs informing tllem oftheir
appointment. . .
As for theappoinuncnt of a spacir aalpprteura Zaireanda specialrep&sen@tiv feorChad
in the frameworkof the 15Q3-procedt:rcc l,, nsultationc sontinue.I will inf0ITh you of the .*.
..:.
outcome in duetime. .,.&Y:
i ,..,A -
Please accept Mr. AssistantSecretary-Genera ,lthe assuran~eo ~f my highest considerahon. .6..r,:...,
. ..,:,;;$;:.ti.
.;.,:>c.+<,r
. ,.,...;.f."-
.-- Yours sinoer~ly, '.<$t;,.
,.. . '. *.' ...$ .:ix:!;:..:.
... .. .,,.-<.
..., ,. .,,:'Q 4v
;:;. .;. .. ,.*$$g;$
.(-. .. ,'.; ,4...:,.'.:~,,:!
.,,.*....- PeterP. van Wu,lfftmPdthe '.:.:,;i:g:.;;
..:;::?:'.:.: Chairman of' .. ..:3ai;..f&$.,
.,f;s.,:..:., Commission on . ' .*$..$.$,$:G
... ..,....: HumanRights at its 50thsession ' ' .......a,:+.;ci::
..;..:,. . :,.:$'$?
I..l.'.'.. ., .' '..,-Y...,.
v%.,:" :,.,;.. . . I . . - .:..--....:.; ...-...-.... .... .-- . ... .. , .i1;:.-I-#-."'.'
?*j&&!k~~C......., , *,,.. ,,,.-,... ..'.-" -..:.:.:......--..,.;... .".-..-..: .I. eport of the Workin
igenous Popula
Subcommission on Preventi
Discriminatioand Protectionof Mi
plenary meeting,on 22
idCouncil,takingnoteof
ts resolution1994/29 of 4
WorkingGroupon Indigenous
ission on Prevention ofDis
inoritiesto meetfor fivew
At its 42nd plenary meeting, on22 July 1994,the
Economic andSoc~dCouncil, taking notef Commissionon
Human Rights resolution 1994/41 of 4 March 1994:'
endorsed thedecision ofthe Commissionto confirmthe
Discriminationand Protectionof Minorities to create a
monitoringmechanismto follow up the question.of the
independence and impartialiyf the judiciary,parttcul~ly
withregardtojudgesandlawyers, aswellas courtoffic~als,
andthenatureofproblemsliabletoattackthis independence
theiform of a special rapporteurwhose mandate would
consist ofthe followingtasks:
(a) To inquire into any substantial alle ations
transmitttohimorherandtoreporthisor herconcusions
thereon;
(b) To identifyand record not only attackson the
independencoef thejudiciary,lawyersandcourtofficials but
also pro ess achievedin protectingand enhancingtheir
indepenBence, and make concrete recommendations,
servicesor technical assistwhenthey arerequestedbyory
the Stateconcerned,
(c) To study,for the purpose of making proposals,
importtptand topicalquestionsof principlewitha viewto
andlawyers.nd enhancingthe independenceof thejudiciary
The Counciallsoapprovedthe Commission'srequestto the
!kaemy-Genera o providethe SpecialRapportey withall
the asststancenecessaryfor the completion ofhls or her
work.
Question of human rights and states
(b) Topr ideappropriateresou emergency
overallUniteN 'omresourc tes,
resolution99f131.tsin impleme
of a draft optional
Convention against Tortu
Punishmentmanor Degradin
42nd plenarymeeting, on 22 July Leandro Despouy,Special
andSocia lounciltiikinnoteof Com of emergency,to ant
resolutio1994/40 of4 March andto includeIn
42 WCN.4/1994a /25Add.1.
SccUCN.4/1994R-EICN.4ISub211993andCotr.chap.11.
sen A. UNITED
NATIONS
Distr.
Economicand Social
GENERAL
Council
~/~~.4/1995/39
6 February 1995
Original: ENGLISH
( COMMISSIONON HUMAN RIGHTS
Fifty-first session
Item 10 of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTEDTO ANY FORM
OF DETENTION OR IMPRISONMENT,IN PARTICULAR:
(a) TORTURE AND OTHER CRUEL, 1- OR DEGRADING TREATMENTOR
PUNISHMENT ;
STATUS OF THE CONVENTION AGAINSTTORTURE AND OTHER CRUEL, INHUMAN
(b)
OR DEGRADING TREATMENTOR PUNISHICENT;
(c) QUESTION OF ENFORCEDOR INVOLUNTARYDISAPPEARANCES;
(d) QUESTION OF A DRAFT OPTIONAL PROTOCOL TO THECONVENTION AGAINST
TORTURE AND OTHER CRUEL, ISMDMAN OR DEGRADING TREATMENTOR
PUNISHMENT
Independenceand impartialityof the iudiciarv, iurors and
assessors and the independenceof lawvers
Report of the Special Rapporteur,Mr. Param Cumaraswamy,
submitted in accordance with Commission on Human Riqhts
resolution 1994/41
GE.95-10600 (El CONTENTS
Parasraphs
Introduction ................. 1 . 14
A. The mandate ............ 1- 5
B. Activities of the Special Rapporteur 6 . 14
I . CONSIDERATIONSON THE MANDATE ..... 15 . 62
A. Introduction ........... 15
B. Historical background of the mandate
C. The legal framework .........
D. Some issues of special importance .
I1 . METHODSOFWORK ..................
A. Introduction ..................
B. Concerning alleged violations .........
C. Concerning progress achieved and concrete
recommendations ................
D. Concerning questionsof principle .......
I11 . RESOURCEREQUIREMENTS ...............
IV . CONCLUSIONS ....................
V . RECOMMENDATIONS .................. Introduction
A. The mandate
1. At its fiftieth session,in resolution1994/41of 4 March 1994, the
Commissionon Human Rights,notingboth the increasingfrequencyof attacks on
judges, lawyers andcourt officials and the link which existedbetween the
weakeningof safeguardsfor the judiciary andlawyersand the gravity and
frequencyof violations of human rights,requestedthe Chairmanof the
Commissionto appoint, for a period of three years, a specialrapporteurwhose
mandate would consist of the following tasks: (a)to inquire intoany
substantialallegationstransmitted to him and to report his conclusions
thereon; (b) to identify andrecordnot onlyattacks on the independence of
the judiciary, lawyersand court officials,but also progressachieved in
protectingand enhancingtheir independence,and make concreterecommendations
including theprovisionof advisory servicesor technicalassistance whenthey
were requestedby the Stateconcerned;and (c) to study, for the purposeof
making proposals,importantand topical questionsof principle witha view to
protectingand enhancingthe independenceof the judiciary and lawyers.
2. In its decision 1994/251of 22 July 1994, the Economic and Social Council
approvedthe above requests.
3. Inresolution1994/41also, theCommissiononHumanRightsurgedall
Governments to assist the SpecialRapporteurin the performanceof his mandate
and to transmit to him all theinformation requested.
4. By letter dated 21 April 1994, the Chairmanof the Commissionon Human
Rights, followingconsultations withthe Bureau,appointedDato' Param
Cumaraswamy (Malaysiaa )s SpecialRapporteur.
5. In this first report,the Special Rapporteur presents hir seflections
upon, and understandingof, the mandate in general andthe standards towhich
he will refer in carryingout his mandate. Thereafter, theSpecialRapporteur
describesthe methods of work hewill employin fulfilmentof his functions.
In thehope of rea1,izing the objectivesof his mandate, theSpecial Rapporteur
then commentson the resources necessary for the effective implementatioo nf
his mandate. Finally,the SpecialRapporteur sets out,someconclusionsand
makes some initial recommendations relatin go his mandate and its effective
implementation.
Activitiesof the SpecialRapporteur
6. The first actof Zhe Special Rapporteur (actini gn accordance with
paragraph 6 of Commissionresolution1993/94 (A))was hisparticipationin the
meeting of special rapporteurs/representatives/expert snd chairmenof working
groups of the specialproceduresof the Commissionon Human Rights which was
held at Geneva from 30 May to 1 June 1994,in accordancewith part 11,
paragraph95, of the Vienna Declarationand Programmeof Action. As reflected
in the report of the meeting (E/CN.4/1995/5, annex), themeeting provided the
SpecialRapporteurwith a welcomeopportunity tomeet with most of the other
special rapporteurs andindependent experts engagei dn the protectionof human
rightsunder proceduresof the Commissionand to considera variety of issues of mutual concern. While at the Palais des Nations, the SpecialRapporteur
took advantageof the occasionto meet with staffof the Centre for
Human Rights.
7. The Special Rapporteur visited Genev for a second time from 11
to 15 September1994 in order to hold consultationswith the Centre,
including meetings with the High Commissioner forHuman Rights and the
Assistant-Secretary-Generaf lor Human Rights, concerningsubstantiveand
practical matters relatint go implementationof the mandate. The Special
Rapporteur alsotook the opportunityto meet representativesof some
non-governmentalorganizations with a special interestin the mandate.
8. While atGeneva in September 1994,the SpecialRapporteur undertook to
establish initial direct contactswith allStates Membersof the
United Nations,United Nations specialized agencies and bodie having a
possible interestin hismandate,various intergovernmentao lrganizationsof
both a universal anda regionalnature, and allnon-governmentalorganizations
having a possible interestin his mandate. Asa result,over 1,600 letters
were sent over the subsequentmonths toGovernments, headsof the judiciary,
bar associationsand a wide varietyof intergovernmental and non-governmental
organizations. These letterswere intendednot only to introducethe Special
Rapporteur andhis mandate to the various addressees,but alsoto obtain both
' general and specific informationrelatingto the implementationof the
mandate. Replies are beingreceived,of which the Special Rapporteuris
taking account. At the same time, the Special Rapporteur i continuing to
compilelj-sts'of institutionsand persons throughout the worlw dith whom he
has yet to establish directcontacts, witha view to achievingthe greatest
awareness concerning the existenc of his mandate andthe standards pertaining
to the independenceof the judiciaryand the legal profession whichare
requiredin themselvesunder internationallaw and are also necessaryto
achieve respect for human right in general.
9. As it is of special importance for the Special Rapporteur to establish
direct contact withnational judicial institutions and professional
associationsof jurists,he has establishedsuch contactwith most chief
justicesand barassociationsthroughoutthe world. This process is
continuing(forexample, theSpecial Rapporteuris soon to addresshimself to
a number of national associationsof judges) andit is hoped that close
relationshipswill be formed between these institutionsand the Special
Rapporteur.
10. The Special Rapporteuris also endeavouringto establishcontactswith
parliamentary bodies throughout the world witha view to securingtheir
fullestunderstandingof, and their active engagementin maintaining through
legislativemeans, the independenceof the judiciary and the legal profession.
Positive contacts havealreadybeen established with international
associationsof parliamentsand parliamentarians, and it is expected that the
Special Rapporteurwill build upon thesecontactsat the international,
regional and national levels.
11. Pursuantto paragraph 3 (a)of Commission resolution 1994/41,the Special
Rapporteur hasenquiredinto severalallegationsof attacks on the judiciary.
Some of his inquiriesare ongoing,while othersappear to have reached their conclusion. However, in so far as the SpecialRapporteuronly really began
his work subsequentto the Economic and Social Council'sapprovalof his
mandate near the end of July 1994, he prefersnot to report at this timeon
any caseswith which he has been concerned. It is his intention toreport in
detail on these matters, and on other substantiveaspects of his mandate, in
his report to the Commissionat its fifty-second sessionin 1996.
12. Pursuant toparagraph 3 (b) of Commissionresolution1994/41,the Special
Rapporteur is seeking to catalogueprogress achievedin protectingand
enhancing judicial independenc end impartiality and theindependenceof the
legal profession,partly through replieshe is receivingas a result of his
initial contacts with Governments andnational judicialinstitutionsand
partly throughstudyingselected countrysituations. In terms of making
"concreterecommendations includint ghe provisionof advisory services or
technicalassistancewhen they are requestedby the State concernedw,as
'J provided for in paragraph3 (b)of resolution1994/41,the SpecialRapporteur
is paying special attention to countriesundergoingtransition to democracy
since theirneeds are generally considerable and since positive steps early in
their transitionwill contributesignificantly toachievementof the rule of
law, respect for human rights and peace and prosperity. Inthis connection,
the Special Rapporteur hopes to work closely withthe advisory services
programmeof the Centre for Human Rightsin matters concerning his mandate.
To this end,the SpecialRapporteurwould welcome: (i)being apprisedon a
regular basisof presentand planned involvementof the Centrein the
provisionof advisory services andtechnical assistance in the area of
judicial i.ndependencaend impartialityand the independenceof the legal
profession; and (ii)being consultedon specific services and assistance
designedto secure judicial independenceand impartialityand the independence
of the legal profession.
13. Turningto paragraph3 (c)of Commissionresolution1994/41,the Special
Rapporteurhas studied theprevious importantreports onthe subject of
judicial independence and impartialityand the independence of the legal
professionsubmittedto the Sub-Commissionon Preventionof Discriminationand
1 Protectionof Minorities. These reports amply illustratt ehat several
questionsof principlerequire furtherstudy and, ultimately, theelaboration
of clear standards. Whilethese questions are to be found mainlyon the
margin ofthe issuesof independence,they neverthelesspose significant
obstaclesto the protectionof human rights ingeneral, for example instates
of emergency. So far, the SpecialRapporteur hasmerely taken noteof a
number of these questions,and it his intentionto expoundupon certainof
them in the course of fulfillinghis mandate.
14. With regard to a generalmatter, the Special Rapporteur wishes to comment
upon his decision to choose an appropriate shorttitle for his mandate. Upon
takingup his mandate, the Special Rapporteu ras referredto as the "Special
Rapporteuron the independenceand impartialityof the judiciaryw. However,
he soon came to realizethat thisshort title didnot convey the breadth of
his mandate, whichis not well known even among those persons and institutions
who hold, or should hold, an interest. For example,as was the case forthe
independentexperts of the Sub-Commissionon Preventionof Discriminationand
Protectionof Minorities whodealt with the subject,the early experience of
the SpecialRapporteur revealed that lawyers anb dar associationsare inadequately awareof the mandateand even their rightsand protectionsunder
international law. For these persons,the term "judiciaryvdoes not
immediatelyor sufficiently indicate the inclusionof lawyers and other court
officers. Consequently,the Special Rapporteur hac shosen to begin using the
new short title "Special Rapporteuron the independence of judgesand lawyers"
as of the beginningof 1995,with the understandingthat the term
windependence",while technically different fro" mimpartialityn,tends to
imply impartiality. However, theSpecial Rapporteur does not mean to give the
impression thathe will not be concerned with structuraq luestionsrelatingto
the institutionsof the judiciaryand the legalprofession,includingbar
associations. Nor shoultdhe short titleof the SpecialRapporteurbe
interpretedto mean.thathe will not concern himselw fith issuesaffectingthe
independence and impartialit of assessors. Similarly,the Special Rapporteur
will be attentiveto interferenceswith the independence and impartialityof
jurors.
i 1
I. CONSIDERATIONSON THE MANDATE
A. Introduction
15. The object of this chapteris to situatethe mandate of theSpecial
Rapporteurin the contextof the considerablework which has been accomplished
so far in elaborating international standara dnsd seekingtheir fullrespect.
To thisend, the Special Rapporteur will briefly recout nte historical
antecedentsof his mandatewithin the UnitedNations, describethe legal
frameworkin which hiswork will be carriedout, and identifysome of the
important questionsof principle whichhe intendsto address over the next
two years. By doing so, the Special Rapporteur hope that this reportwill
provide continuitywith the workwhich has come before and will contributeto
the clarity and coherenco yf the work which he intendsto carry out in
fulfilmentof his mandate.
Historical backsround of the mandate
I ) within the judicial branchof governmentare consideredessential elementsins
safeguarding human rights. This understandinghas been incorporatedinto
various international instrumenf tsr the protectionof human rights.
However,some of the practical difficulties experienced throught outworld
in relationto the need for measuresand conditionsregardedas essentialto
ensure and secure theindependenceand impartialityof the judiciaryinspired
the Sub-Commission on Preventionof Discriminationand Protectionof
Minoritiesto request,in its resolution 5 E (XXXI) of 13 September1978, the
Secretary-General to preparea preliminary study on the matter andto report
to the Sub-commission at itsthirty-secondsession in1979. Taking into
account earlier work of the Sub-commission related to the administrationof
justice,the Secretary-General accordingly sough relevantinformationfrom
the Governmentsof member Statesand compiledthe replies receivedin his
subsequentreportof 11 July 1979 (E/CN.4/Sub.2/428).
17. Followingits considerationin 1979 of the report of the
Secretary-General, the Sub-Commissionsoughtand received the authorizatioo nf
the Economic'andSocial Council(decision 1980/124of 2 May 1980) to entrustMr. L.M. Singhviwith the preparation of a report on the independenceand
impartialityof the judiciary, jurorsand assessors,and the independenceof
lawyers. Mr. Singhvi accordingly submittea d preliminary reporton the
subjectin 1980 (~/~~.4/Sub.2/L.731a )nd progress reportsin 1981
(E/CN.4/Sub.2/481and Add.l), 1982 (E/CN.4/Sub.2/1982/23a )nd 1983
(~/CN.4/~ub.2/1983/16).
18. Based upon Mr. Singhvi'ssuccessive reports,the Sub-Commissionadopted
resolution 1984/11,in which it requestedhim to submithis final reportto
the Sub-commissionat its thirty-eighthsessionin 1985, and decided to
considerit at that sessionwith a view to the elaborationof a draft body of
principles. This decisionof the Sub-Commission,and the subsequentwork of
Mr. Singhvi, served ascatalysts for activities bi ynterestedpersons and
non-governmentalorganizations throughout the world which reinforcedand
specifically contributed to the elaborationof a draft body of principles. In
his final report(E/CN.4/Sub.2/1985/1a 8nd Add.1-6),Mr. Singhvi submittedan
initialdraft declarationon the independenceof justice (the I1Singhvidraft
declaration"). In addition to his own draft,Mr. Singhvi annexed to his
report the Draft principles onthe independenceof the legal profession
(formulated bya meeting of lawyersfrom throughoutthe world, held at Noto,
Italy,from 10 to 14 May 1982, in which the SpecialRapporteurhad the honour
'toparticipate and contribute) and the UniversalDeclarationon the
Independenceof 3ustice (adopted bya meeting of eminent jurists in Montreal,
danada,on 10 June 1983).
19. Pursuantto Sub-commissiondecision1985/107,Mr. Singhvi'sfinal report
was circulatedto the membersof the Sub-Commission for their comments, upon
which Mr. Singhviwas requestedto report againto the Sub-Commissionat its
thirty-ninth session.A compilationof the commentsmade by membersof the
Sub-Commissionis containedin document ~/CN.4/Sub.2/1987/17.
20. Taking into consideratiot nhe comments he hadreceived from membersof
the Sub-Commissionand also fromMember States (following circulationof the
draft pursuant to Sub-Commissionresolution1987/23),Mr. Singhvi submitted a
report reflectingthese comments and suggestiono sn the draftdeclaration
(~/~~.4/~ub.2/1988/20) together witha revisedversion of the draft
declaration (E/CN.4/Sub.2/1988/2O/Add.land Add.l/Corr.l),to the
Sub-Commissionat its fortieth session. By this time, the international
community hadalready elaboratedclear standardsregardingspecifically the
judiciary: the SeventhUnited Nations Congresson the Preventionof Crime and
the Treatmentof Offenders,meeting at Milan from26 August to
6 September1985, had adoptedthe Basic Principleson the Independenceof the
Judiciary (~/C0NF.121/22,chap. I, sect. D.21, as endorsedby the
United NationsGeneralAssembly in its resolutions 40/32 of 29 November1985
and 40/146of 13 December 1985. At the same time, Draft Basic Principleson
the Roleof Lawyerswere being consideredunder the auspices of the
United Nationson the basis of a workingpaper preparedby the secretariatof
the UnitedNations Officeat Vienna - apparentlywithout reference tothe
draft declarationprepared by Mr. Singhvi (see,E/CN.4/Sub.2/1988/20,
para. 53). These closelyrelatedactivitiesof the UnitedNations contributed
to Mr. Singhvilsrevised draft declaration. 21. In its resolution1988/25,the Sub-Commissionexpressed its appreciation
and thanks tothe SpecialRapporteur,Mr. Singhvi, for the enduring and
valuable contribution hehad made to the legal doctrine relatingto the
independenceof justice,which was one of the primary prerequisites for the
promotionand protectionof human rights, and decided to refer the Singhvi
draft declaration,under the title "Draftdeclarationon the independenceand
jurors and assessorsand the independence of
impartialityof the judiciary,
lawyers", to the Commissionon HumanRights for further consideration. It
also decidedto consider the draft declaratio under a separateitem of the
agenda at its forty-firstsession.
22. The Commissionon HumanRights, at its forty-fifthsession, in
resolution1989/32,invited Governments to take into account the principles
.J- set forth in the Singhvidraft declarationin implementing theBasic
Principleson the Independenceof the Judiciary. The Commission alsowelcomed
the decisionof the Sub-Commissionto consideran agenda item on the draft
declarationat its forty-first sessionand requestedthe Sub-Commission,under
the same agendaitem, to consider effective means of monitoringthe
implementationof theBasic Principleson the Independenceof the Judiciary
and theprotectionof practising lawyers.
23, In its resolution1989/22,the Sub-Commission,at its forty-first
session, respondedto the above requestof the Commissionby inviting
Mr. Louis Joinet toprepare a working paper on means of monitoring
implementationof therelevant standards.The Commissionon Human Rights,in
its resolution 1990/33,endorsedSub-Commission resolution 1989/22and
recommended thatthe Eighth United Nations Congress on the Preventionof Crime
and the Treatmentof Offenders consider as a matter of priority the draft
basic principleson the role of lawyers elaborated by the Committeeon Crime
Preventionand Control, witha view to their adoption. Meeting at Havana from
27 August to 7 September1990, the EighthUnited Nations Congress on the
Preventionof Crime andthe Treatmentof Offendersdid in fact adoptthe
aforementionedprinciples,togetherwith Guidelineson the Role of
Prosecutors.
24. In accordance withhis mandate,Mr. Joinet submitteda working paper to
the Sub-Commissionat its forty-second session (E/CN.4/Sub.2/1990/35i)n which
he recountedthe then current United Nations standard-setting andreporting
activities,categorized violations of internationalnorms relative to judicial
independenceand impartialityand the independenceof the legal profession,
surveyed positive experiencei sn protecting theindependenceof judges and
lawyers,and drew some conclusions. In the same workingpaper, Mr. Joinet
recommendedthat the Sub-Commissionrequestone of its members toprepare a
reportwhich would (a)make a system-wideanalysisof the advisoryservice and
technical assistance programmeo sf theUnited Nationsas regards the subject
and (b)bring to the attentionof the Sub-Commission casesof legislativeand
practicalmeasures servingto strengthenjudicial independence and
impartiality and the independenceof the legal professionor, on the contrary,
cases which constitutedviolationsof these norms (E/CN.4/Sub.2/1990/35,
para. 76).25. After consideringthe working paper submitted bM yr. Joinet,the
Sub-Commissiondecided, in its resolution1990/23,to entrustMr. Joinet with
the preparationof such a report as he had recommended. That decisionwas
endorsedby the Commission in itsresolution 1991/39.
26. In the meantime,the standard-setting activitie sad continuedin
both the Basic Principles
relationto the rolesof lawyersand prosecutors:
on the Role of Lawyersand Guidelines onthe Roleof Prosecutorswere adopted
at theEighthUnited Nations Congreso sn the Preventionand Treatmentof
Offenders,held at Havana from 27August to 7 September1990; the
two instruments were subsequentlywelcomedby the GeneralAssemblyin its
resolutions 45/121of 14December1990 and 45/166 of 18 December1990.
27. The followingyear, Mr. Joinet submitteda comprehensive report to the
Sub-Commission at its forty-thirdsession (E/~N.4/~ub.2/1991/30). In this
report, Mr. Joinet surveyedthe advisoryservicesand technical assistance
renderedby the UnitedNations in the fieldof human rights and other related
fields;surveyedmeasuresand practiceswhich had strengthened, or to the
contraryweakened,the safeguardsof independence and protection;drew
conclusionsand made practicalrecommendations. Whilecomprehensivein the
matters addressed, the reportwas not, Mr. Joinet admitted,exhaustive. In
relationto measuresand practiceswhich had served to strengthen orweaken
the independence of the judiciaryand the protectionof lawyers,he had
"intended merely to illustrate,from the standpoint of method,what a report
on the subject might cover in relationto the international standardsn
(E/CN.4/Sub.2/1991/30p,ara. 301). Infact, in his reportMr. Joinethad
given priorityto the matter of advisoryservicesand technicalassistanceand
addressedonly "themajor obstacles - especiallyphysicalpressure",partly
because "the information receivedor collected ... [was]too abundantto be
dealt with in a single reportn (para.302). Consequently,Mr. Joinet made
detailedrecommendations with respectto advisoryservicesand technical
assistance,but, with regardto measures and practices which had servedto
strengthenor weaken the independenceof the judiciaryand the protectionof
lawyers,he recommended renewao lf that part of his mandate toenablehim to
providethe Sub-commission with the fullest possibleinformation(para. 312).
28. In resolution1991/35of 29 August 1991, the Sub-Commissiondecided to
entrust Mr.Joinet with the preparationof anotherreport to bring to its
attentioninformationon practicesand measures whichhad servedto strengthen
or to weaken the independence ofthe judiciaryand the legal professionin
accordancewith United Nations standards.In its resolution 1992/33,the
Commissionon Human Rightsendorsedthe Sub-Commission's decision.
29. At its forty-fourth session,the Sub-Commission considered thf eurther
reportof Mr. Joinet (E/CN.4/Sub.2/1992/2a 5nd ~dd.11, in which he reported
upon positivemeasuxesand practices aimedat strengtheningthe safeguardsof
independenceand protection andcited cases of measuresand practices which
had servedto weaken these safeguards. He dividedthose cases into those ,
measuresand practices which had: constitute"pressure"on judges and
lawyers;been implementedduring statesof emergencyand in the administration
of militaryjustice;weakenedthe applicationof statutory safeguards and the
tenureof judges; weakened the applicationof the safeguardsrelatingto ~/CN.4/1995/39
page 10
access to the assistanceof a lawyer or to thepractice of the profession;and
weakenedthe applicationof the safeguards relatint go the freedomsof
association and expression o lawyers. After considering hir seport,the
Sub-Commissiondecided,in resolution 1992/38of 28 August 1992, to entrust
Mr. Joinetwith the preparationof a final reportwhich, in additionto
bringingto the attentionof the Sub-Commission further informatio on
practicesand measures which had servet do strengthenor to weakenthe
independenceof the judiciary and the protectionof practisinglawyersin
accordancewith United Nationsstandards,would enable him: to make specific
recommendations regardint ghe independenceof the judiciaryand the protection
of practising lawyersto be taken into account in the United Nationsadvisory
services and technical assistance programm (following upon hisearlier
recommendations);to examine waysof enhancingcooperationand avoiding
overlappingand duplication in the work of the Commission on CrimePrevention
and CriminalJusticeand that of the Sub-Commission;andto elaborate uponthe
fi recommendations madein his 1992 report. Sub-Commissionresolukion1992/38
was subsequently endorsedby the Commission on Human Rightsat its
forty-ninth sessionin resolution 1993/44of 5 March 1993.
30. In his final reportto the Sub-Commission(E/CN.4/Sub.2/1993/25)i ,n
which he reportedon what he termed "positiveand negative measuresand
practices concerning guarantee of independence,impartialityand protectiontt ,,
Mr. Joinetprovided: an update on the relevantactivities under the
UnitedNationsprogrammeof advisoryservices andtechnical assistance; a
summaryof the developmentof standardsat both the universal andregional
levels;and an update of his surveyof positive andnegativemeasuresand
practicesby Governments within theio rwn domesticjurisdiction. In relation
to "negativemeasuresand practices",Mr. Joinetaddressedboth de facto
violationsand violationsin the operationof the law, under the following
headings: vtviolencep,hysical threatsand harassmentv;"actionsundermining
the courtstneed for objective and impartial informationw;"declarationof
statesof emergency orestablishmentof courtsof specialjurisdi~tion~~;
"encroachments on professionalor jurisdictional status";and l~violationo sf
fundamentalfreedoms". Mr. Joinet concluded his report with suggestionsfor
the reinforcementof cooperationbetweenthe UnitedNations human rights
programmeand the United Nations crime prevention anc driminaljustice
programmeand a recommendationfor the establishment of a monitoring
mechanism. Specifically,he recommended the creationof a specialprocedure
capableof: examining whathe characterizedas "the still too numerous
violationsperpetratedtoday,only the mostsymptomaticof which have been
describedin the present reportn (E/CN.4/Sub.2/1993/25 chap. 11, para. 10);
"elicitingthe cooperationof Governmentsvv (E/CN.4/Sub.2/1993/25c ,hap. 11,
para. 11) with a view to addressing relevant question or situations;
remedying"the insufficient involvemeno tf judgesJand lawyers' professional
organizations in a questionwhich is nevertheless of direct concern to themn
(ibid.) - and for thebroader interests of society at large,the Special
Rapporteur wouldadd; and "prospectingfor new work areas whose importanceand
urgency, already considerable ,ill probablyattain priority status:justice
and the media, justiceand reasonsof state, justiceand emergency situations,
justiceand anti-terrorism measures, etc." (ibid.). E/CN.4/1995/39
page 11
31. On the basis of the various studiesand reports prepared under
Sub-Commissionmandates duringmore thana decade,and taking into
consideration especially the final report of Mr. Joinet (E/CN.4/Sub.2/1993/25
and Add.l), the Sub-Commissionrecommended,in its resolution1993/39 of
26 August 1993, the creationof "a monitoringmechanis'm to follow up the
questionof the independenceand impartialityof the judiciary, particularly
with regardto judges andlawyers,as well as court officers, and the nature
of problems liableto attack this independenceand impartialityu. The
Commissionon Human Rights, in its resolution1994/41of 4 March 1994,
endorsedthe recommendationof the Sub-Commission, and thereuponrequestedthe
Chairmanof the Commissionto appoint a specialrapporteur. The substanceof
Commissionresolution1994/41,as approvedby Economic and Social Council
decision 1994/251,is recountedin paragraphs1 to 3 above.
C. The leaal framework
i I
32. The SpecialRapporteurobservesthat the requirementsof independentand
impartialjusticeare universaland are rooted in both naturaland positive
law. At the international level, the sourcesof this law are to be found in
conventionalundertakings, customary obligations and general principlesof
law.
33. The SpecialRapporteurwill not here embarkupon a treatise intendedto
establishthe basis and contentof applicablelaw. Indeed,in each case,the
specificcombination of applicable standardswill be a functionof the
conventionalobligations binding upon the concernedState in conjunctionwith
the equallybinding customaryobligationsand general principlesof law.
However, inthis sectionof his report, theSpecialRapporteur wishesto
clarify therudimentary elements he will referto in assessingcomplianceby a
Statewith its obligations.
34. In relationto theunderlying concepts of judicial independence and
impartiality, whichthe Special Rapporteur asserta sre "generalprinciplesof
law recognizedby civilized nations" in the sense of Article 38 (1) (c)of the
I Statuteof the InternationalCourt of Justice, the SpecialRapporteurcan do
no betterthan to quote the following passages of Mr. Singhvi'slucid final
report tothe Sub-Commissionin 1985 (E/CN.4/Sub.2/1985/1a 8nd Add.1-6):
"75. Historicalanalysis,andcontemporaryprofiles of the judicial
functionsand the machineryof justiceshows the worldwide recognition of
the distinctiverole of the judiciary. The principlesof impartiality
and independence arethe hallmarksof the rationale and thelegitimacyof
the judicialfunction inevery State. The conceptsof the impartiality
and independenceof the judiciarypostulateindividual attributes as well
as institutionalconditions. These are not mere vague nebulousideas but
fairly precise concepts in municipaland internationallaw. Their
absence leads to a denial of justiceand makes the credibility of the
judicial process dubious.It needs to be stressed thatimpartiality and
independenceof the judiciaryis more a human right of the consumersof
justice than a privilegeof the judiciaryfor its own sake. ~/~~.4/1995/39
page 12
"76. Judges must be impartialand independent and free from any
restrictions, inducements, pressures, threats or interferenc direct or
indirect,and they should have the qualitieo sf conscientiousness,
equipoise,courage,objectivity, understanding, humanity anl dearning,
because those are the prerequisitesof a fair trial andcredible and
reliableadjudication ..."
"79. The conceptof impartiality isin a sense distinct from the concept
of independence. Impartiality implies freedof mrom bias, prejudiceand
partisanship;it meansnot favouringone more than another;it connotes
ob-jectivityand an absenceof affection orill-will. To be impartialas
a judge.isto hold the scaleseven and to adjudicate withoutfear or
favour in order to do right ..."
"81. ...The duties of a juror andan assessor and thoseof a lawyer are
quite differentbut theirindependence equally implief sreedom from
interference by the Executiveor Legislativeor even by the judiciaryas
well asby others in the fearless andconscientious discharge of their
duties in the exerciseof their functions ...Jurors and assessors,like
judges,are requiredto be impartialas well as independent. A lawyer,
however, is notexpectedto be impartialin the mannerof a judge, juror
or assessor,but he has to be free from externalpressures and
interference. His duty is to representhis clients and theircases, and
to defend their rights and legitimateinterests,and in the performance
of that duty, he has to be independentin order that litigantsmay have
trust and confidencein lawyers representing thea mnd lawyers as a class
may have the capacityto withstand pressureand interference."
35. Mr. Singhvi wenton in his reportto demonstrate thatthe principlesof
judicialindependenceand impartiality are reflectei dn the legalsystems of
the worldby constitutional and legislative meanssupportedby an overwhelming
practice. As such, Mr. Singhvi was moved to observe that"thereis in fact a
coherentworld profile ofjudicial independence and it is not merelya matter
of ritual verbiage" (E/CN.4/Sub.2/1985/18/Add.l, para. 104). The Special
[ I Rapporteurfully sharesthe observationof Mr. Singhvi. Moreover, the Special
Rapporteur isof the opinionthat the generalpractice of providing
independentand impartialjusticeis accepted byStates as a matter of law and
constitutes, therefore, an international custom in the senseof
Article 38 (1) (b) of the Statuteof the International Court of Justice.
36. While the basic obligationsand their essentialelements maybe rooted in
internationalcustom andthe generalprinciplesof law recognizedby civilized
nations,the specificitiesof these obligationshave become the subject of
some articulation invarious international instruments at both the universal
and regional levels. Althoughthe SpecialRapporteur hasno authorityto
supervisecompliance byStateswith obligations arising at the regional level,
he observesthat several of these instruments reiterateand reinforce
universalobligations. At the universallevel, the Special Rapporteur draws
particularattention tothe provisionsof the 1948 UniversalDeclarationof
Human Rights, the 1985 Basic Principleson the Independence of the Judiciary,
the 1990 Basic Principleson the Role of Lawyers, and the 1990 Guidelineson ~/~~.4/1995/39
page 13
the Role of Prosecutors. It is to be noted in regard to the aforementioned
instruments that theit rexts were elaborated by United Nations bodies and
receivedfull endorsement by the General Assembly.
37. With regard to conventionalobligations,the Special Rapporteur draws
attention firstand foremostto the obligations emanating frot mhe Charter of
the UnitedNations. Specifically, the Charter refers in its Preamble,in
Article1 (3) and Article 55 (c),to the imperativesof universalrespect for
human rights.The Preamblealso declaresthe determinationItto establish
conditionsunder which justice and respect for to heligations arisingfrom
treatiesand other sourcesof internationallaw can be maintained". The
SpecialRapporteurobservesin this relation that the overalc lonceptionof
ujustice"embodiedin theCharter andthe work of the United Nations
incorporatesrespectfor human rights and is conditionedon judicial
independence and impartialityas such and for the safeguardof other human
i rights.
38. The Special Rapporteurobserves that the furtherspecificationof the
conventionalobligationsof the Charter entailedthe elaborationof the
UniversalDeclarationof Human Rightsand subsequentinstruments forthe
international protectionof human rights. Assuch, at least thosearticlesof
the UniversalDeclarationof Human Rights which are intrinsicto respect for
human rights in generalmay be said to proceed from the conventional
undertakingof States Membersof the United Nationsas embodied in the
Charter. The Special Rapporteur holds this to be true ofarticles 7, 8, 10
and 11 of the UniversalDeclarationof Human Rights,which provideas follows:
"Article7
llAlare equal before the law and are entitled withoutany discrimination
to eqkal protectionof the law. All are entitledto equal protection
againstany discrimination in violationof this Declarationand against
any incitementto such dis~rimination.~
"Article8
"Everyonehas the right to an effective remedyby the competent national
tribunalsfor acts violating the fundamental right gsrantedhim by the
constitutionor by law."
"Article 10
"Everyoneis entitledin full equalityto a fair and public hearingby an
independentand impartialtribunal,in the determinationof his rights
and obligationsand of any criminalcharge against him."
"Article 11
"1. Everyone chargedwith a penal offence has the rightto be presumed
innocentuntil provedguilty accordingto law ina public trial at which
he hashad all the guaranteesnecessary forhis defence.~/CN.4/1995/39
page 14
112. No one shall be held guiltyof any penaloffence onaccount of any
act or omission whichdid not constitutea penal offence, undernational
or internationallaw, at the timewhen it was committed. Norshall a
heavier penaltybe imposedthan theone thatwas applicableat the time
the penal offencewas committed."
39. The Special Rapporteur observetshat whereas the requirementsof
independent and impartiaj lusticeare explicitin article 10 of the Universal
Declaration,they are clearly impliedin articles 7, 8 and 11. The Special
Rapporteuralso observesthat this understanding has been uphel and repeated
by the Sub-Commissionon Preventionof Discriminationand Protectionof
Minorities, theCommissionon Human Rights and the GeneralAssembly by way of
consistentpreambularreferencesin virtually every resolutioa ndoptedby
these bodies on the subject in question.
40. Turning to more specific conventionaolbligations,the SpecialRapporteur
refers to articles2, 14 and 26 of the 1966 Internatiqnal Covenanotn Civil
and PoliticalRights,which provideas follows:
"Article2
"1. Each State Party to the present Covenant undertaket so respect and
to ensuretb all individuals within its territor and subject to its
jurisdiction the rights recognize in the present Covenant,without
distinctionof any kind, such as race, colour,sex, language, religion,
politicalor other opinion,nationalor social origin,property,birth or
other status.
"2. Where not already provided for by existing legislativeor other
measures,each State Party to the present Covenant undertakesto take the
necessarysteps, in accordance withits constitutionalprocessesand with
the provisionsof the present Covenant, to adopt suchlegislativeor
other measuresas may be necessaryto give effect to the rights
recognizedin the present Covenant.
"3. Each StateParty to the present Covenant undertakes:
"(a) To ensure that any person whose rightsor freedomsas herein
recognizedare violated shall havean effectiveremedy,notwithstanding
that the violationhas been committedby persons actingin an official
capacity;
"(b) To ensure thatany personclaimingsuch a remedy shall have
his right theretodetermined by competent judicial, administrative or
legislativeauthorities, orby any other competentauthorityprovided for
by the legal system of the State, and to develop thepossibilities of
judicialremedy;
~(c) To ensure that the competent authorities shale lnforce such
remedieswhen granted." ~/CN.4/1995/39
page 15
"Article 14
"1. All persons shallbe equal beforethe courts and tribunals. In the
determinationof any criminalcharge againsthim, or of his rights and
obligationsin a suit at law, everyone shallbe entitled to a fair and
public hearing by a competent,independentand impartialtribunal
established by law. The press andthe public may be excluded from allor
part of a trial for reasons ofmorals,public order (ordre ~ublic) or
national securityin a democraticsociety,or when the interestof the
private livesof the Parties so requires, or to the extentstrictly
necessary inthe opinionof the court in special circumstances where
publicitywould prejudice the interests of justice; but any judgement
renderedin a criminal caseor in a suit at law shall be made public
except wherethe interestof juvenile personsotherwise requires orthe
proceedings concern matrimonial disputo es the guardianshipof children.
"2. Everyonechargedwith a criminal offenceshall have the right to be
presumed innocent until proveg duilty accordingto law.
"3. In the determinationof anycriminalcharge against him, everyone
shall be entitledto the followingminimumguarantees,in full equality:
"(a) To be informed promptly and in detail ina languagewhich'he
understandsof the nature and causeof the charge againsthim;
"(b) To have adequatetime and facilities for the preparationof
his defenceand to communicatewith counselof his own choosing;
"(c) To be triedwithoutundue delay;
"(d) To be tried inhis presence,and to defend himselfin person
or through legal assistanceof his own choosing; tobe informed,if he
does not have legal assistance,of thisright; andto have legal
assistance assigned to him, in any case where theinterestsof justice so
require, and withoutpayment by him in any such case if he doesnot have
sufficient meansto pay for it;
"(e) To examine,or have examined, thewitnessesagainst him and
to obtain the attendanceand examinationof witnesseson his behalf under
the same conditionsas witnesses againsthim;
"(£1 To have the free assistanceof an interpreterif he cannot
understandor speak the language used in court;
Not to be compelled totestifyagainsthimself or to confess
"(g)
guilt.
"4. In the case of juvenilepersons, the procedure shallbe such as
will take account of their ageand the desirabilityof promoting their
rehabilitation.~/CN.4/1995/39
page 16
"5. Everyone convictedof a crime shall have the right to his
convictionand sentence being reviewed by a higher tribunal accordingto
law.
"6. When a person has by a final decisionbeen convictedof a criminal
offenceand when subsequentlyhis convictionhas been reversed or he has
been pardoned on the ground that a new or newly discovered fact shows
conclusivelythat there has been a miscarriageof justice,the person who
has sufferedpunishmentas a result of such conviction shall be
compensated accordingto law, unless it is proved thatthe non-disclosure
of the unknown fact in time is wholly or partly attributable tohim.
"7. No one shall be liable to be tried or punishedagain for an offence
for which he has alreadybeen finallyconvictedor acquittedin
accordancewith the lawand penal procedureof each country."
"Article26
"Allpersons are equal before the law and are entitledwithout any
discrimination tothe equal protectionof the law. In this respect, the
law shallprohibit any discriminationand guaranteeto all persons equal
and effective protectionagainst discrimination onany ground such as
race, colour,sex, language, religion, politicalor other opinion,
nationalor social origin,property,birth or other status."
41. The Special Rapporteur observesthat whereasthe requirementsof
independent andimpartial justice areexplicit in article 14 quoted above,
they areclearly impliedin articles2 and 26. The SpecialRapporteuralso
observesthat this understandinghas been upheld and repeated by the
Sub-Commissionon Preventionof Discriminationand Protectionof Minorities,
the Commissionon Human Rights and the GeneralAssembly byway of consistent
preambularreferencesin virtually every resolution adopte by these bodieson
the subject in question.
42. The SpecialRapporteurobserves that therequirementsof an independent
and impartialjudiciary,and independentlawyers,which arenecessary for the
implementationof articles2, 14 and 26 of the International Covenanton Civil
and PoliticalRights, are also necessary forthe effectiverealizationand
enjoymentof most other rights andfreedoms,especially withregard to those
provisionswhich proscribearbitraryacts and those provisions which prescribe
judicialsupervision. Articles 6.1, 6.2 and 9 of the Covenantare
particularlyrelevant inthis relation:
"Article6
"1. Every human being has the inherentright to life. This right shall
be protectedby law. No one shall be arbitrarily deprived of his life.
"2. In countrieswhich have not abolished thedeath penalty, sentence
of death may be imposedonly for the most serious crimes in accordance
with the law in force at the time of the commission ofthe crime and not ~/CN.4/1995/39
page 17
contraryto the provisionsof the present Covenant and to the Convention
on the Preventionand Punishmentof the Crimeof Genocide. Thispenalty
can only be carriedout pursuantto a final judgement renderedby a
competentcourt."
"Article 9
"1. Everyone has theright to liberty andsecurityof person. No one
shall be subjected toarbitraryarrest or detention. No one shall be
deprivedof his libertyexcepton such groundsand in accordancewith
such procedureas are established by law.
112. Anyone whois arrestedshall be informed, at the time of arrest,of
the reasons forhis arrest and shall be promptly informeo df any charges
againsthim.
113. Anyone arrestedor detainedon a criminal chargeshall bebrought
promptly beforea judge or other officerauthorizedby law to exercise
judicialpower and shall be entitledto trial within a reasonabletime or
to release. Itshall not be the general rulethat persons awaiting trial
shall be detainedin custody,but releasemay be subject to guarantees to
appear for trial, at any other stage of the judicialproceedings,and, .
shouldoccasionarise, for executionof the judgement.
"4. Anyone who is depriveo df his libertyby arrestor detentionshall
be entitledto take proceedingsbefore a court,in order that that court
may decide withoutdelay on the lawfulnessof his detentionand order his
releaseif the detentionis not lawful.
"5. Anyone who hasbeen victim ofunlawfularrestor detentionshall
have an enforceableright to c~mpensation.~
43. In interpretingthe full implicationsof the provisionsof the
International Covenant on Civil and Political Rights(andthose of the
UniversalDeclarationof Human Rights)requiring orrelatingto judicial
supervision,Mr. Si,nghviobservedthat, in the elaborationof the instruments,
"the conceptsof independenceand impartialitywere not analysed or
elucidated. These broad concepts were taken tobe axiomaticand did not
engenderany controversy"(E/~~.4/~ub.2/1985/18 para. 28).
44. With respect tomore specificinterpretation, the Human Rights Committee,
establishedunder article28 of the InternationalCovenanton Civil and
PoliticalRights,and acting pursuantto article40.4, stated inits General
Comment 13 of 1984 that thenotion of "a competent,independent and impartial
tribunalestablished bylaw1', as stipulated in article 14.1of the Covenant,
raisesmatters regarding Itthemanner in which judges are appointed,the
qualificationsfor appointment,and the durationof their terms of office;the
conditiongoverning promotion, transfer andcessationof their functionsand
the actual independence of the judiciaryfrom the executive branch and the
legislative" (KRI/GEN/I.,eneral Comment13, para. 3).
45. In the elaborationof its own jurisprudence, the Human Rights Committee,
as expressedthroughits views upon individual communications receivedE/CN.4/1995/39
page 18
pursuant to the Optional Protocolto the InternationalCovenanton Civil and
PoliticalRights, has stated in relationto article 14.1 that "the right to be
tried by an independent and impartial tribunal i an absoluteright that may
sufferno exception" (CommunicationNo.263/1987,Gonzdlezdel Riov. Peru,
Decisionof 20 November 1992, CCPR/C/46/~/263/1987, para. 5.2). More
specifically,the Human RightsCommitteehas stated:
"'Impartialityrof the courtimplies that judges must not harbour
preconceptions about the matter put befot reem, and thatthey must not
act in ways that promote theinterestsof one of the parties. Where the
grounds for disqualificationof a judge are laiddown by law, it is
incumbent uponthe court to consider exofficio these groundsand to
replace membersof the court falling under thedisqualification criteria.
A trial flawedby the participationof a judge who, under domestic
statutes,should have beendisqualified cannot normally be consideredto
be fair or impartial withinthe meaning of article 14." (Communication
No. 387/1989,Karttunen v. Finland,Decisionof 17 November 1992,
CCPR/C/46/~/387/1989,para. 7.2)
46. Turning to other conventionalobligations in the field of human rights
which require judicial independenc and impartiality,the Special Rapporteur
refers to: articles 5.aand 6 of the 1965 International Convention on the
Eliminationof All Formsof Racial Discrimination; articles 2 (c),15.1 and
15.2 of the 1979 Conventionon the Eliminationof All Formsof Discrimination
againstWomen; article 2.1 of the 1984 Convention against Torture and Other
Cruel, Inhuman orDegrading Treatment or Punishment;and articles 9.1and 12.2
of the 1989Convention onthe Rightsof the Child. The SpecialRapporteur
considersthat the requirementsof independent andimpartialjusticeare
implicitin, and are in fact or very closely related to the purpose of, the
aforementionedprovisions,which readas follows:
"InternationalConventionon the Eliminationof
~ll Forms of Racial Discrimination
"Article5
(a) The rightto equal treatmentbefore the tribunalsand all
other organs administeringjustice;
"Article6
"StatesPartiesshall assure to everyone within theirjurisdiction
effectiveprotectionand remedies,through the competent national
tribunals and other Stateinstitutions, against any acts of racial
discriminationwhich violatehis human rights and fundamentaf lreedoms
contrary tothis Convention,as well as the right to seek from such
tribunalsjust and adequatereparation or satisfaction for any damage
suffered asa result of such discriminati~n.~~ ~/~~.4/1995/39
page 19
"Conventionon the Eliminationof All Forms of Discrimination
aqainst Women
"Article 2
To establish legal protectioo nf the rights of women on an
"(c)
equal basis withmen and to ensure through competent national tribunals
and other public institutiont she effectiveprotectionof women against
any act of di~crimination;~~
"1. States Parties shall accord to women equalitywith men before
the law.
"2. States Parties shall accort do women, in civil matters, a
legal capacity identicat lo that of men and the same opportunities to
exercisethat capacity. In particular,they shall give women equal
rights to conclude contracts and to administerproperty and shall treat
them equallyin all stages of procedurein courts and tribunals."
"ConventionaqainstTorture and Other Cruel, Inhuman or
DeqradinqTreatmentor Punishment
"1. Each State Party shall take effective legislative,
administrative,judicialor othermeasures to prevent actsof torture in
any territory under its jurisdiction."
llConventioonn the Riqhts of the Child
"Article 9
"1. States Parties shall ensure thata child shall not be
separatedfrom his or her parents against their will, except when
competent authorities subject to judicialreview determine,in accordance
with applicablelaw and procedures,that such separationis necessaryfor
the best interestsof the child. ..."
"Article12
"1. States Partiesshall assure to the child whois capableof
forming his orher own views the right to express those views freely in
all matters affectingthe child, theviews of the child being given due
weight in accordancewith the age and maturityof the child. ~/CN.4/1995/39
page 20
"2. For this purpose, the child shallin particular beprovided
the opportunityto be heard inany judicialand administrative
proceedingsaffecting thechild, either directly,or through a
representativeor an appropriatebody, in a manner consistentwith the
proceduralrules of national law."
47. Although the supervisorybodies established under the above-mentioned
Conventionshave not so far chosento pronouncethemselves, through such
general recommendations as they are entitledto issue, on the implicit
requirementsof judicial independence and impartiality,the Special Rapporteur
observesthat at least the jurisprudenceof the Committeeon the Elimination
of Racial Discrimination has confirmed the requiremeno tf impartialitywith
respect to article 5 (a)of the International Conventioo nn the Eliminationof
All Forms of Racial Discrimination (see CommunicationNo. 3/1991,Narrainenv.
Norway, Opinionof 24 March 1994, ~~F3)/~/44/~/3/1991 paras. 9.1-10). The
( 1 Special Rapporteur believet shat any contestof the other above-cited
provisionswould resust in similarauthoritativeviews or opinions.
48. Of similarimportanceto the conventionalobligationsin the foundational
human rights instruments referredto above are article 16of the
1951 Conventionrelatingto the Status of Refugees andarticle 16 of the
1954 Conventionrelatingto the Status of StatelessPersons,which provide as
follows:
"Conventionrelatinsto the Statusof Refusees
"Article16. - Access to courts
"1. A refugee shall havefree access to the courts of law on the
territoryof all Contracting States.
"2. A refugee shall enjoyin the ContractingState in which he
has his habitualresidencethe same treatmentas a national in matters
pertainingto access to the courts,including legalassistanceand
exemptionfrom cautio iudicatumsolvi.
"3. A refugee shall beaccordedin the matters referred to in
paragraph 2 in countries other than that inwhich he has his habitual
residencethe treatment grantedto a nationalof the country of his
habitual residence."
"Conventionrelatinsto the Status of StatelessPersons
"Article 16. - Access to courts
"1. A stateless person shall have free access to the courts of
law on the territoryof all Contracting States.
"2. A stateless personshall enjoyin the Contracting State in
which hehashis habitual residencethe sametreatmentas a national in
matters pertainingto access to the courts, including legal assistance
and exemptionfrom cautioiudicatumsolvi. ~/CN.4/1995/39
page 21
"3. A statelessperson shall beaccordedin the matters referred
to in paragraph2 in countries other than that in whichhe has his
habitual residencethe treatment grantedto a national of thecountryof
his habitual residence."
49. The SpecialRapporteurobservesthat thereferences toucourts"in
article 16 of the Convention relating to the Status of Refugees, imply the
conditionsof independenceand impartiality. Indeed,so far as theSpecial
Rapporteurhas been able to determine,this implicationappears tohave been
so self-evidentas to have never inspireddiscussionin the drafting process,
interpretativenotes or circularsof the Divisionof InternationalProtection
of the Office of the United Nations High Commissione ror Refugees (UNHCR),
authoritativestatementsby the Executive Committeo ef UNHCR or any other
similarbody, or even analyses in any subsequentacademic commentaries on the
Convention. The same absenceof controversyor even concern appearsto have
characterized thedrafting, analysis,implementationand academictreatmentof
article 16 of the Convention relating to the Status of StatelessPersons. The
apparentabsence of doubt most probably is attributableto the logic
underlyingthe provisions - that the person for whom protection is aimed
should haverecourseto an instancewhich is not subject to executiveor
legislativedictatesor interestsand which is alsofree frombias, i.e. that
'the instancebe independent and impartial.If this were not so, the Special
Rapporteursubmitsthat the provisions would losetheir reason for being.
50. Returningto the provisionsof the Basic Principles on theIndependence
of the Judiciary,the Basic Principles onthe Roleof Lawyers, and the
Guidelineson the Role of Prosecutorsto which the Special Rapporteur has
referredabove and to which he attaches speciai lmportance asthe mostprecise
articulationsof the standards relating to judicialindependence and
impartiality andto the independenceof the legal profession,it is to be
understood that these instrumentswill constitute themain references in
implementationof the presentmandate.
51. While the legal framework of the SpecialRapporteur'smandate may be said
to be a compositeof various obligations arisino gver the years from the
differentsources of internationallaw, the SpecialRapporteur alsoattaches
considerableimportance toPart I, paragraph27 of the Vienna Declaration and
Programmeof Action (A/CONF.157/23),unanimouslyadopted on 25 June 1993 by
the World Conference onHuman Rights,which bringstogether thematter in a
concisefashion,declaring, inpart, as follows:
"EveryState should provide an effective framework of remedies to redress
human rights grievances or violations. The administrationof justice,
includinglaw enforcementand prosecutorialagenciesand, especially,an
independentjudiciary andlegalprofessionin full conformitywith
applicablestandardscontainedin internationalhuman rightsinstruments,
are essential tothe full and non-discriminatory realization of human
rights and indispensableto the processes -ofdemocracy and sustainable
development ..."
52. Despite the quite developedlegal content of the notions of judicial
independence andimpartiality, andalso the broadernotion of an independent
legal profession,some lacunae remain onthe marginof these concepts in ~/~~.4/1995/39
page 22
internationallaw. This fact explainsthe existenceof the third part of the
Special Rapporteur'smandate, which relates to questionsof principle
requiringclarification,if not furtherelaboration andpossible
standard-setting.
D. Some issuesof specialimportance
53. As noted above, the Special Rapporteui rs mandated "to study, for the
purpose of making proposals,importantand topicalquestionsof principlewith
a view to protectingand enhancing the independenc of the judiciaryand
lawyers" (Commission resolution1994/41,para. 3 (c)) .
In studyingthe work of the Sub-Commission which preceded thecreationof
54.
,: his mandate,the Special Rapporteur observe that several questionsof
principle have alreadbyeen raised,particularlyby Mr. Joinet in his reports.
Specifically,Mr. Joinet suggested thatthe followingissues mightbe given
priority statusunder a monitoringmechanismsuch as has nowbeen established:
justiceand the media, justiceand reasonsof State, justiceand emergency
situations,justice andanti-terrorism measures (E/CN.4/Sub.2/1993/25,
chap. 11,para. 11).
55. In fact, as the Special Rapporteurhas alreadyindicated, someissues
require clarificatioonnly. For example,clarification (or perhaps,more
accurately,reiteration)may be necessaryin relationto the principleof the
separationof powers,which is the bedrockupon which the requirementsof
judicial independenceand impartialityare founded. Understandingof, and
respectfor, the principleof the separation of powers is a sine ma non for a
democraiiiState andis, therefore,of cardinalimpo'rtance for countriesin
transitionto democracy - which heretofore have been typicallycharacterized
by precisely theabsenceof a separationof powers. Thus, the Special
Rapporteur willemphasizethe specialand urgentnecessity forrespectingthe
principleof separationof powers and the requirementsof judicial
independenceand impartiality,especiallyin countriesin transition to
democracy. He is confident that,in doing so, the valuable contribution made
by independentand impartial justiceto nationaldevelopmentwill alsobecome
apparent.
56. Another case where clarificationmay be necessaryis with regard to the
functionof judicialreview,or itsequivalent,of the constitutionality or
legalityof executivedecisions,administrative orders and legislativeacts.
Early in the implementationof his mandate,the Special Rapporteur has already
observeda considerablemisunderstandingon the part of governmental
authoritiesand even parliamentarians.The misconception seems to be that
judicialreview is a matter of substituting the opinionsof judges for the
determinationsor acts of the competent authoritiew sithin or under the
executiveor legislativebranchesof government. The oftenheard argumentis:
"Howcould judges,who are merely appointed, set aside the decisionsof the
elected representativeo sf the people and substitutetheir own decisions?"
This misunderstanding tends also to cause the executiveor legislative
branchesto seek to limit,or even suspend,the power of judicial review, i.e.
to interfere withjudicialindependence. Of course,the functionof judicial
review servesonly to ensurethat the executive andlegislativebranchescarry
out their responsibilities according tl oaw,and that their determinationsor ~/C~.4/1995/39
page 23
acts do not exceedtheir accordedpowers. The processof judicialreview
serves to check executiveand legislative excesses by upholding the ruleof
law; it is in no sense a matter of substitution. However, because of the
seemingly widespread misunderstandingof the power of judicial review (which
the Special Rapporteur
is so vital for the protectionof the ruleof law),
will devotesome effort to addressingthe problem, especially in the context
of countries undergoing transitionto democracy.
57. Aside from those issues whichmay requiresome clarification, itis
evident that some standardswill have to be furtherelaborated in termsof the
specificitiesof their applicationin certaincontextsor situations,while
other questionsof principlewill require theelaborationof entirely new
standardsin order to fill existinggaps. In relationto the former,it is to
,. be observed thatthe criterionof I1independencei l1not always assuredwith
respect to military courts, revolutionarytribunals, or similar special
courts. Inthese cases, the extentof the criterionof independenceis at
issue and requiresa clear and sufficient response in terms of applicationof
existing standards.
58. The complexities of the modern State,togetherwith genuine threatswhich
manifest themselves indiscriminatelyagainst wholesocieties,raise questions
of principle whichmay well require additional standards in relation to
judicialindependenceand impartialityand to theindependenceof the legal
profession. However, argumentsinvoked bythe executiveto restrict judicial
independenceon the basis of "reasonsof State" (forexample,national
security)must becarefullyscrutinizedand clearlimits to the restrictions
must beestablished. The Special Rapporteur is confident that creative
solutionscan be found which would overcomeproblemsof, for example,
sensitivedocumentation which the executive mightseek to withhold from the
judiciary. In order to avoid whatMr. Joinet has seen to be an "excessive ,
usage of the prerogatives conferred on governmentalauthorities"
(~/CN.4/Sub.2/1993/25p ,ara. 116), examinationof the problemwill have to be
initiated.
59. Anotherquestionof considerable concern to the Special Rapporteur arises
in relationto statesof emergency. One commentatorhas observed concisely
that Iftheemasculationof the judiciaryand theharassmentof defence lawyers
are not uncommonin a state of emergencyv1 (Chowdhury,Subrata.Roy,Rule of Law
in a State of Emerqency,Pinter Publishers, London, 1989, p. 130). Indeed,
decrees instituting states of emergency areoften followed bymass dismissals
of judges, thecreationof special courts andthe restrictionor suspensionof
the judicial reviewfunction. Concernover such matters hasbeen expressed
over the years by many organizations and in many forums, for example,by the
InternationalCommissionof Jurists and itsCentre on the Independenceof
Judges and Lawyers,the International LawAssociationand the Sub-Commission
on Preventionof Discrimination andProtectionof Minorities,and there is no
doubt that the matter remains in need of resolution. In this connection,the
SpecialRapporteurtakes note of paragraph 9 of the glGuidelinefsor the ,
Developmentof Legislationon States of EmergencyT1(entitled llEffectsof a
state of emergencyon the judiciaryu,and which seeks to protect, interalia,
the criticalfunctionof judicialreview) annexedto the fourth annualreport ~/C~.4/1995/39
page 24
and list of Stateswhich, Since 1 January1985,have proclaimed,extendedor
terminateda state of emergency,submittedto theSub-Commissionby
Mr. LeandroDespouy, Special Rapporteua rppointed pursuant to Economicand
Social Council resolution1985/37 (~/CN.4/Sub.2/1991/28).
60. The scourgeof terrorismhas also given riseto anti-terrorismmeasures
which oftenpresentproblemsfor judicial independenco er the independenceof
the legalprofession. As in the case of statesof emergency,one featureof
anti-terrorismmeasures hasbeen the creationof specialcourts. In some
countries,proceduralrequirementsof the measuresconstituteclear
interferenceswith the lawyer-clientrelationship, for example,interferences
with confidentiality. Othem reasures,such asthe increasingly broadly
applied techniqueof hooding judges in order to protect them from reprisals,
raise largerquestionsof due processwhichmay have some bearingon the
notionsof judicialindependenceand impartiality.Some standard-setting may
i 1 be requiredin this area.
61. Another sourceof increasingconcern is therelationship between the
media and the judiciary. In this era of rapidly developing communications
technologies,it has becomedifficultat times to balance the equally
important freedomof expression (and the correspondinr gight to information)
on the one handwith therequirementsof fair trial (featuringan independent .
and impartialjudiciary)on the other hand. Certainly, judges (and/oj rurors)
must be protected againstpressureswhich wouldimplantor effect bias, or
even cause the appearanceof such bias, to the detrimentof the ruleof law in
a specificcase or in general. At the sametime, one must beextremely
carefulnot to restrict unnecessarily the freedomof expression. The question
must be examined,a fine balancebetween these two competing, equally
important,rights mustbe sought,and additional standards of protectionmay
have to be developedin this connection.
62. In referringto the above issues,the Special Rapporteur has sought only
to identifysome questionsof principleto which heattaches special
importance. With the cooperationof interestedGovernments,intergovernmental
organizations, non-governmenta organizations and individuals, theSpecial
Rapporteur hopes to,beable to contribute constructivelt yo the further
elaborationof appropriatestandardsof judicialindependence andimpartiality
and of the independenceof the legal profession.
11. METHODSOF WORK
Introduction
63. In reviewingthe work which has led up to the creation of his mandate,
and as a resultof his own early experience, the SpeciaR lapporteur wishesto
make the preliminaryobservationthat his mandateapplies toa wide spectrum
of courtofficers,as its long titleindicates. Accordingly, the Special
Rapporteur will address issuesaffecting the officero sf the court concerned
under his mandate. However, theSpecialRapporteuralso takes noteof the
experienceof Mr.Joinet which ledhim toobservethat, in relationto the
broaderlegalprofession,'it seems that thejudiciaryand lawyersare the ~/CN.4/1995/39
page 25
only professionsto run seriousrisks" (~/CN.4/Sub.2/1992/25/~dd.l,
para. 6 (2)(e)). As a practical consequence, this means that the Special
Rapporteur will address matters affecting principa judges and lawyers,
whatever their official roli en thejudicialbranchof government.
64. With regardto definitions, the Special Rapporteur wila lddresshimself
to all cases, situationsand matters involving performanc of the functionsof
judges (whetherin the superior orthe subordinate courts,or in special
tribunals createdby statutes), jurors,assessorsand lawyers,whether the
persons involved are professionalor lay, whether theirfunctionsor
appointmentsare of regularstandingor ad hoc, and irrespectiveof their
formalqualificationsor recognition.
.,- 65. In devisingmethods of work for implementinh gis mandate,the Special
Rapporteur is consciouo sf the fact that his mandate wascreatedin response
( 1 to concreteand practicalproblems. In many countries, judges and lawyers
sufferreprisalsfor performing their professiona functions. Interferences
range from professional sanctiona snd dismissals througahrbitrary arrestsand
detentionsto physicalattacks includingkillingsand disappearances. In
additionto interferenceswith individual judges or lawyers, there have been
many incidentswhere theexecutiveor legislative branches havs euspended
certain functionsof the judicialbranch,or in some cases legislatedthem out
' of existence,i.e. there have been interferences with ts heructuresand
institutions whichadminister justice, includingbar associations. The
SpecialRapporteur finds that the independenceand impartiality ofthe
judiciarycan be effectivelysecuredif there is in the Statea well-
entrenchedindependentmechanism,independentof the executiveand legislative
arms of government, responsiblefor the appointment, promotion, transfer, and
dismissalof judges (as notedin Human Rights Committee General Comment 13).
In addition,financialindependencefrom the executive and legislative arms of
government is vital foa rn independentand impartialsystem of justice.
Consequently, the SpecialRapporteurwill inquire intothe availabilityof
suchmechanismsin StatesMembersof the Untied Nations.
66. The purposeof thepresent chapteris to outlinehow the Special
1 Rapporteur intends to implement eachaspectof his mandate in a practicalway.
The essentialwork of the mandatehas been articulated in paragraph3 of
Commissionresolution 1994/41. Implementation of the mandated tasksrequires:
(i)fair and reliable methodsof investigationinto allegations;(ii)reliable
methodsof assessing progressachievedin protectingand enhancingthe
independenceof the judiciary, together witr heliablemethods of assessing
I specific needsin orderto make appropriateand concreterecommendations
leading toreal improvements;and (iii)methodsof identifyingand examining
mattersof principleconcerningthe independence and impartialityof the
judiciary andthe independenceof the legalprofession.
67. as a generalrule, the Special Rapporteur will make himself available on
the widest basisto the greatestextent of his abilities. He will seek to
establish, andhas already taken steps in this direction, direct contactswith
Governments, relevant domestic authorities, intergovernmental organizations,
relevantprofessional organizations ani dnstitutions, other interested
international and national non-governmental organizationa s,ademic
institutionsand individuals.~/~~.4/1995/39
page 26
68. As a second general rule, the specialRapporteur'sapproach will
emphasizethe preventionof violations. Hence, the Special Rapporteur will
encouragedisseminationof the relevantstandardsand willrespondpromptly
upon being informedof possible threatsto judicial independence and the
independenceof the legal profession.
69. In relationto other thematicmechanisms,the SpecialRapporteur wishes
to expresshis intentionto cooperatefully, for example through regular
consultations, joint studiea snd jointmissions when appropriate,as
recommendedin the Joint Declarationof the Independent Experts Responsible
for the Special Procedures for the Protectionof Human Rights (A/CONF.157/9)
and inthe report on themeeting of independent experts responsible fo the
special procedures held at Geneva from30 May to 1 June-1994 (E/CN.4/1995/5).
B. Concerninsallesedviolations
70. Paragraph3 (a)of Commissionresolution1994/41establishesa mandate
which is consistentwith the other special thematic procedures.Hence, in his
methodologythe SpecialRapporteurwill draw upon the experience acquired by
the various thematic mechanisma snd willlargely followthe establishedcommon
practice. In particular,he takes note of themethods of workused by the
SpecialRapporteuron extrajudicial,summary or arbitraryexecutions
(E/~~.4/1994/7p,aras. 13-67)and the SpecialRapporteuron torture
(E/~~.4/1994/31p,aras. 5-23).
71. The SpecialRapporteur'smandate encompassesa broad rangeof issues
relatingto the protectionof the independenceof the judiciaryand the legal
profession. Since interferences with judicialindependencemay be directed
againstboth individualsand the institutionsor branch as such, the Special
Rapporteurwill have to consider generalsituationsas well asconcrete
incidents and individual cases.
72. In relation tothe legalprofession,the Special Rapporteur is conscious
of the fact thatthe role of lawyers andtheir respectivebar associations in
upholdinghuman rightsand fundamentalfreedoms,as referredto in
paragraph14 of the Basic Principles on the Role of Lawyers, is sometimes seen
by Governmentsas lawyersdabblingin politics. TheSpecial Rapporteur will
be vigilantin the protectionof thisimportantrole of lawyers in upholding
these rights andfreedomsand will seek to bring offending Governments to
account;the SpecialRapporteur isaware of instanceswhere lawyershave been
arbitrarily detained without trial andof some cases in which theirlaw
practiceshave been subjectedto economic sanctions.However,the Special
Rapporteur willbe equally vigilantin scrutinizing situations where lawyers
may be using theirbar associationsto indulgein partisan politics,thus
compromisingthe independenceof the legal profession. .In this connection,
the SpecialRapporteurwill seek to distinguish betweenengagementin the
protectionof those human rightswhich have politicalconnotations,and
engagementin politicsper se.
73. Inall cases, direct contactswith the alleged victims and/or their
representatives willbe sought. Corroborativeor supplementary information
will also be sought from sourcesother than the alleged victims or their
representatives. E/CN.4/1995/39
page 27
74. Where theinformationreceivedby the SpecialRapporteur isprima facie
credible,the SpecialRapporteurwill transmitthe allegation,usuallyby
letter,to the concernedGovernmentin order to obtainthe Government's
response.
75. The credibilityof the source of the allegationswill be established by
the SpecialRapporteurby referenceto: the degree of detail presented bythe
allegedvictim about him or herself andthe event or interferencealleged;
corroborativesources;logic; the laws in forcein the concerned State.
76. In rare casesof particularly grave allegationsof violations, for
example, threatsto.the lifeof the allegedvictim, the Special Rapporteur
will send an urgent appeal to the concernedGovernment. This method will
.,- follow theproceduresestablished forother thematic mechanisms.
77. Whether addressedthrougha letter or through a cable issuedas an
urgentappeal, theGovernment concerned will be expectedto respond
expeditiouslyto the SpecialRapporteur'srequest for informationor
explanation. In this regard,the SpecialRapporteurdraws attentionto
Commissionresolution1993/47,in which Governmentsare encouragedto so
respond.
78. Paying due account to the need to have reliable information priorto
seekingresponsesfrom concernedGovernments,the Special Rapporteur will seek
to act inthe preventivespirit with which he will approach his mandate
overall. By doing so, the Special Rapporteurwould hope to avoid more serious
interferencesor attacks. For example, should the Special Rapporteur observe
movementin some part of the world directed towards restrictionof judicial
independenceor the independenceof the legalprofession,for example,
considerationof legislation,he will endeavour immediately to inform
decision-makers of the relevant internationalstandards. Such endeavours may
well require direct interventioa nt the locallevel in order to draw the
attentionof the relevant authorities to the specificstandards priorto
legislationbeing adoptedor other violations occurring.
79. In such situationsas may require,the SpecialRapporteurwill undertake
on-sitevisits to enhance his understandino gf particular situations and to
facilitate personal contacts with the releva patrties, especially
governmental authorities.
80. Where responsesreceived fromGovernmentsare considered unsatisfactory
by the SpecialRapporteur,he will seekadditionalinformationfrom the
source/victimand the Government. Still unsatisfactory governmentar lesponses
will be mentionedin the subsequentreportsof the SpecialRapporteurto the
Commissionon Human Rights. The cases/situationswill also continueto be
followedby the SpecialRapporteuruntil such time as a satisfactory,response
is received. Satisfactorygovernmental replieswill be deemed to have
"clarified" allegations and such cases willnot normallyfigure in the Special
Rapporteur'sreports.
81. Concerningthe notion of a "sati~factory~r~esponse from a concerned
Government,the SpecialRapporteur wishesto make clear thatresponsesmust
demonstrate respect for independenceof the judiciary andthe legal profession
, ~/CN.4/1995/39
page 28
in practice. The Special Rapporteur will not be satisfiedwith mere
statementsof principle extracted frot mhe Constitutionof the State
concerned,but willseek furtherinformationon how in practice those
principlesare appliedto secure judicialindependenceand impartiality and
the independenceof the legalprofession.
82. In adoptingthe above-described methods in cases or situations arising
under the terms of paragraph 3 (a)of Commissionresolution1994/41,the
SpecialRapporteurtakes noteof the fact that Mr. ~oinet experienced and
describedthe difficultiesof endeavouringto consider allegations and
governmentresponsesthereto through the normalprocedures,in so far as
translation and transmissio of informationand general communication between
the sources, the SpecialRapporteur,the Centre for Human Rights and the
responsible Governmena tre very time-consuming. The Special Rapporteur
sincerelyhopes that such difficultiescan be overcome.
1 )
C. ConcerninsDroqressachievedand concreterecommendations
83. It is the obviousaim of international human rights lawthat standardsbe
implementedat the domestic level. However,such implementation requiresi ,n
the firstplace, full knowledgeof the existingstandardson as wide a scale
'as possible. In this connection,the Special Rapporteur's initial experience
supportsMr. Joinetlsearlier findingthat "non-governmental organizations,
particularly professional organizatio ofsjurists, areinsufficiently well
informedof the specificsystemof standardsfor theprotectionof the
judiciaryand lawyersnt(E/.CN.4/Sub.2/1992/25/Add1, para. 6 (4) (b)).
Consequently,significant promotional activities wib ll necessary tospur
progressin implementation of the standards.
84. The promotionof respectfor the independenceand impartialityof the
judiciary willbe servedby the Special Rapporteur'sreportingon progress
achievedthroughout-theworld. Not only willpositive steps bebroughtto
light,but specific methods of implementation will no doubt providethe
opportunityto learn: progress achieved in one part of the world may be
I i useful in overcoming problems elsewher in the world.
85. Progresswill be evident not so much from the apparentabsenceof
interferences and attacka ss from positive measuresof protectionwhich
engendera healthyand vigorous judiciary and lega plrofessionconfidently
performingtheir functions. Legislative progress will be necessaryin many
parts of the world in order to overcome existing structuraldeficiencies.
However, suchlegislative progress may be dependentupon success in
promotionalactivities,as mentionedabove. For example,before
parliamentarians may be preparedto act to securejudicialindependenceand
the independence of the legalprofessionthroughstatutory measures,
unjustifiedfears that an independent judiciary mau ysurp executiveor
legislativepowers willhave to be overcome.
86. In connectionwith the above, the SpecialRapporteuris especiallyaware
of the importanceof encouragingand aidingcountriesin transition to
democracyin order to establisha system that will provide aproper balance
between the various authorities concerned wit the administrationof justice.
At this momentof global change, the Special Rapporteui rs convinced that the ~/c~.4/1995/39
page 29
most immediate andcriticalneed for advisory services and technical
assistancein the field of the administrationof justice ingeneral, and with
regardto judicialindependenceand the independenceof the legal profession
in particular,is among countriesin transitionto democracy. Consequently,
the Special Rapporteur will seek dialoguewith theauthoritiesof such States
with a view to identifying specific needs and encouraging the provisionof
appropriateservicesand assistance.
87. The SpecialRapporteur will also stronglyencourageregionalcooperation
in order to strengthenthe independenceof the judiciary. In this connection,
the SpecialRapporteurwelcomes several initiatives aroundthe world. For
example, the SpecialRapporteurapplaudsthe work being donein the countries
of the former Soviet Union by European intergovernmentao lrganizations suchas
. the Councilof Europe and the Organizationof Securityand Cooperation in
Europe'sOffice of Democratic Institutiona snd Human Rights. Initiatives
( 1 aimed at regional standard-setting,suchas the draft additional protocolto
the EuropeanConventionon Human Rights prepared by the Associationof
EuropeanMagistrates for Democracy and Freedomsand the Draft General
Principleson the Independenceof the Judiciaryprepared by the associationof
Asian Chief Justices,are also to be applauded in sofar as they are
consistentwith, or add to, universal standards. Certainly, it is to be
acknowledged thatinitiatives byrespected non-governmental organizations,
such as the Geneva-basedInternationalcommissionof JuristsfCentre forthe
Independenceof Judges and Lawyers and the New York-basedLawyers Committee
for HumanRights, have contributedgreatly through their detailed reportin go
the developmentof specificstandards andmethods of implementationaimed at
securingthe independenceof judges and lawyers. In relation to such
initiatives,the Special Rapporteur will, in additionto reportingupon them,
seek to act as a catalystand facilitatorwhere his involvementmay be
consideredwelcome and constructive.
88. Returningto problemsof structural deficiency, they willbe examined
initiallythrough scrutinyof laws. More in-depthexaminationwould require
countryvisits forneeds assessment. The SpecialRapporteurwould be
availableto undertakesuch visits at the requestof Governments,but he may
1 I also approach Governments in that regard where he may thini kt would be of
use. The SpecialRapporteur mayoccasionallyissue "countryprofilest1 which
would both reveal problem areas and identify governmental efforts which
requiredsupportand encouragement. Involvement with multilateral
institutionssuch as the WorldBank may also be pursued, especially to
encourage fundingof infrastructuralneeds associated withthe Itcapital costsft
of the administrationof justiceunder an independent andimpartialjudiciary.
89. Evidently, theeffective implementation of paragraph 3 (b) of Commission
resolution 1994/41,with special attention to its constructive emphasis, will
requireclose cooperation withthe advisory services andtechnicalassistance
programmeof the Centre for Human Rights. To this end, the Special Rapporteur
will pursue theestablishmentof a regular exchangeof information andviews
with the Centre for Human Rightson matters concerningjudicial independence
and the independenceof the legal profession.
90. Over the long run, increasedawarenessof the standards isthe key to
progress. It is partlywith this in mind thatthe SpecialRapporteur has~/~~.4/1995/39
page 30
contactednot only the relevant professional associations, whosemembership
consistsof those most immediately interested anadffected,but also law
schoolsand faculties, with a view to informingand acculturatingfuture
lawyers,judges and, frequently,politicalleaders. In relation tothe latter
group, the Special Rapporteur intend so followup his initial contactswith a
recommendation concernint ghe developmentof a specificprogramme for law
schools.
D. Concerninsauestionsof principle
91. With regard to thatpart of the mandate articulated in paragraph3 (c)of
Commissionresolution 1994/41,i.e. questionsof principle, Messrs. Joinet and
Singhvihave alreadysingled out some subjectt so be taken up and the
SpecialRapporteur hasalready commented brieflu ypon some of these and
others. It may well be that, in the course of his examination ofvarious
cases and situationsaround the world, otherquestions willarise. The
SpecialRapporteurwill endeavourto analyse systematicallysuch questionsin
his reports.
In addition tohis own analyses,the SpecialRapporteur maywish to
92.
solicitthe views of Governments,specializedor interestedorganizationsand
independent experts. .Wide consultationmay take the formof participationin,
or even the hosting of, occasional seminarsand conferences. In general, the
SpecialRapporteurwill stimulate discussion wita h view to distilling
consensuson possible standards.
93. In the process of conductinghis studies,the Special Rapporteurmay
very well seekpartners from the governmental, intergovernmental and
non-governmentalcommunities.
RESOURCEREQUIREMENTS
94. It shouldgo without saying that the effectiveimplementationof the
SpecialRapporteur's mandate dependu spon the availabilityof adequatehuman
and material resources. There is a direct causal link in this regard:
adequate funding facilitate seffectiveimplementation,while inadequate
funding willresult in ineffective implementation.It is also to be observed
that the availabilityof resourceshas a significant bearingon a second
causal'relationship:the achievementof an independent andimpartial
judiciaryaffects significantly the level of respect for human rightsin
general - as recognizedby the Commissionin the seventh preambularparagraph
of resolution 1994/41. The causal chain continues in so far as the level of
respectfor human right's has a direct bearingupon the quality of democracyin
a State. Taking this logic intoaccount, the "valuefor moneyw quotientof
supportfor the independenceand impartiality.ofthe judiciaryis high; for
example,it can contributegreatly to the avoidanceof discrimination
engenderinggroup disaffectionsand rivalries givingrise to conflicts.
95. Clearly, theSpecial Rapporteur will requireadequateresources in order
to implementhis mandate effectively.He hopes thatthe Member States will,
throughthe relevant United Nations organs, ensur that such resourcesare
made available. In this regard,the SpecialRapporteur wishesto acknowledge
the welcome intentionof the High Commissioner forHuman Rights to provide E/~~.4/1995/39
page 31
each special rapporteurwith modern meansof communicationand access to an
electronicdatabaseof human rightsinformation (see E/CN.4/1995/5/~dd.l).It
is hoped that MemberStates will supportsuch concreteand useful initiatives.
96. The practical implicationof unmet resourcerequirementsis the inability
of the SpecialRapporteurto organizeand carry out his mandate: he cannot
plan missions,make decisionson how (andsometimes whether)to intervene,
etc. A clearly identified budgetis a necessary precondition to efficientand
effectivework. This is especiallyso in the caseof emergencysituations:
the SpecialRapporteurmust have a clear understanding of the financial
resourcesavailableto him and/or the permissible expenseshe may incurso
that he does not enter into undertakings whic are unfezsiblefinanciallyor
causehim to expend unrecoverable sumf srom his personal resources.This is
all the more important sincethe Specialkapporteuris not a United Nations
employee,but contributeshis workon a pro bono basis.
1 )
97. In order to enhancehis effectiveness,and taking into account the
well-knownconstraintson the financial resources of the Organization,it may
be necessaryfor the Special Rapporteur to accept voluntary contributions or
materialassistancefrom organizationsor persons interested in supporting the
work ofthe mandate. However, in principle,the Special Rapporteurwill not
acceptcontributionsfrom Governments because of the potential forconflict of
interestin possible cases of allegations: the Special Rapporteurwill
vigorouslymaintain hisindependenceboth in fact and in appearance.
IV. CONCLUSIONS
98. It is worth repeating the observatiom nade by Mr. Singhvi in his report
of almost 10 years ago:
"The contemporaryinternationalorder is premised on the intrinsicand
ultimate indivisibility of freedom,justice and peace. It is clear that
in the world inwhich we live, there can be no peace without justice,
there can be no justice without freedom ant dhere canbe no freedom
without human rights.I1(~/C~.4/Sub.2/1985/18 para. 74)
99. Commissionon Human Rights resolution 1994/41not only confirms the
above-notedgeneral observationof Mr. Singhvi,but, followingthe end of the
cold war, it also gives new meaningand impetusto another more precise
observationof Mr. Singhvi:
!$Thstrengthof legalinstitutions isa form of insurancefor the rule
of law and for the observanceof human rights and fundamentalfreedoms
and for preventingthe denial and miscarriageof justice. To strengthen
human rights in thelegal systemand to build up the strengthof the
legal system andto sustainthe rule of law and eliminateany denial of
justice shouldbe a major strategy for updatint ghe premises of the new
world order." (E/CN.4/Sub.2/1985/18p ,ara.44)
100. It is the SpecialRapporteur'sstronglyheld opinion that the measure of
the strengthof any legal system is to be found in the degree of independence
and impartialityof its judiciary.~/CN.4/1995/39
page 32
101. In order for the principlesof judicial independence and the independence
of the legalprofessionto obtain their broadestand deepesteffects, it is
necessary thatthe existing standards of judicialindependenceand the
independenceof the legal profession enjoy widd eissemination. Emphasis
shouldbe placed on achievingsuch dissemination not only through the efforts
of the SpecialRapporteur, but also throughthe publicationsand promotional
activitiesof the Centre forHuman Rights.
102. Implementationof the SpecialRapporteur'smandate to monitor progress
achievedand to make concreterecommendations, includingthe provision of
advisoryservices andtechnical assistance, will requir close'cooperation
with the advisory services andtechnical assistance programme of the Centre
for Human Rights. At a minimum,the Special Rapporteur will have to be kept
regularly informed by the Centre.
103. With attention tothe practical detailsof effectiveimplementationof
the mandate, itis absolutelyclear that the mandate willnot be effective
withoutthe provisionof adequate human and financiar lesources. There exist
some minimumrequirementsin this regard. Specifically,the Special
Rapporteurconcludesthat he requires thefull-timeassistance of atleast one
Professional staff member of the Centre forHuman Rights at Geneva, together
with the provisionof secretarial services at his place of residence
(KualaLumpur) . In addition,the Special Rapporteur requires certainty with
regard tothe budgetaryresourcesat his disposal, in order toplan his
activities andtravels.
104. Ultimately,effective implementatioo nf the mandate depends upon the will
of Member States withregard to their own domesticjurisdiction. Where
problemsexist, cooperationof the concerned Governments is fundamental. In
seeking toresolve existingproblems,constructivedialogue is essentialand,
therefore,will be the principalmethod employedby the Special Rapporteur.
V. RECOMMENDATIONS
105. In so far as this report is intended mainly to establishthe terms of
analysisand subsequentwork of the Special Rapporteur in fulfilmentof his
mandate, he hasno recommendationsto make of a substantivenature. However,
the Commission'sadoptionof the following recommendations mac yontribute to
the better functioningof the mandate andwould facilitateits effective
implementation. Specifically,the Special Rapporteur recommends:
(a) That the Special Rapporteur be apprisedon a regular basisof
requests madefor advisoryservicesand technicalassistanceand of such
services andassistanceas are being provided through thC eentre for Human
Rights,or are foreseen,in the area of the administration ofjustice,in
particular*withregard to the independence and impartialito yf the judiciary;
(b) That, with a view to achievingthe widest disseminationof the
principlesof judicial independence and impartiality an the independenceof
the legal profession,the Centre forHuman Rights publish a "fact sheet" on
this subject. Independence andimpartialityof t...ors and the independenceof aivyers~v\vw.unhchr.ch:'html~menuB'chrres;9j36.l1
A, b
UNITED NATIONS HIGH CO&mlISSIONERFOR HCTMLW RIGHTS
G'I.-?.-
Jndependenceand impartialityof thejudiciary, jurors and assessors
and the independenceof lawyers
CommissiononHumanRights resolution1995/36
The CommissiononHumanRights,
,Guidedby articles7, 8,10and 11ofthe UniversalDeclarationof HumanRights andarticles4and
-'26 of theInternationalCovenanton CivilandPolitical Rights,
i i Convincedthatan independent and impartiajludiciary andan independent legalprofessionare essential
prerequisitesfortheprotectionof humanrights andfor ensuringthat thereisno discriminationinthe
administrationofjustice,
Bearingin mindthe ViennaDeclarationandProgrammeofAction(AICONF. 157123),in particular
paragraph27 ofpartIand paragraphs88,90 and 95 of part 11,
Recallingits resolution1994141of4 March 1994in which itrequested theChairmanofthe Commission
to appoint foraperiodof threeyears, aspecialrapporteuronthe independence andimpartialityofthe
judiciary,jurors andassessorsandthe independenceof lawyers,
RecallingalsoGeneral Assembly resoluti40132of 29 November 1985in whichthe Assembly
endorsedthe BasicPrincipleson the Independenceof the Judiciary,andresolutio46 of 13
December1985,
Recalling furtherGeneralAssemblyresolution451166of8December 1990,in whichtheAssembly
welcomedtheBasicPrincipleson the RoleofLawyersandthe Guidelines onthe RoleofProsecutors
adoptedby theEighthUnitedNationsCongress on thePreventionof Crimeandthe Treatmentof
Offendersandinvited Governments to respectthemand to taketheminto accountwithin theframework
i i oftheir nationallegislationandpractice,
Bearingin mindtheprinciplescontainedinthe draft declarationpreparedbyL.M. Singhvi
(E/CN.4/Sub.211988/ 2ndAAdd.lC1orr.l), whichthe Commission,in itsresolution1989132of 6
March1989,invitedGovernmentsto takeinto accountin implementingthe Basic Principleson the
Independence ofthe Judiciary,
Recallingthe appointmentbythe Chairman ofthe CommissiononHumanRightsof Mr.Param
Cumaraswamyas SpecialRapporteur,
Takingnoteofthefirstreport submittedbythe SpecialRapporteuronthe implementationofhis
mandate andthe recommendationaddressedto the Commissionon HumanRightscontainedtherein
(ElCN.4/1995/39,para. 105),
Notingwithconcernthe increasingly frequentattacksontheir independencesufferedbyjudges, lawyers
and court officers, and aofthe closelinkbetweenthe weakening ofsafeguardsforjudges, lawyers
andcourt officersandthe frequency and gravityof violationsof human rights,
1.Welcomesthe firstreport submittedbythe SpecialRapporteuronthe activitiesrelatingto his mandate
entitled "Independence impartialityof thejudiciary, jurors.andassessorsandthe independenceofIndependenceand impartialityof t...orsandthe independenceof awyers
..
lawyers"(E/CN.4/1995/39);
2. Endorsesthe decisionofthe Special Rapporteurtouse,beginningin 1995,the shorttitle of "Special
Rapporteuronthe independenceofjudges andlawyers",andrequeststhe Centre for Human Rightsto
take noteof thisin itsfuturecommunications;
3.Takesnoteofand welcomesthe methodsofworkthe SpecialRapporteur intends to follow in the
implementationof histask, as outlinedin chapterIIof his report;
4.Notes with appreciationthe determinationof theSpecialRapporteur toachieveaswide a
dissemination aspossibleof informationabout existing standardsrelatingto the independenceand
impartialityofthejudiciary andtheindependenceofthe legalprofession in conjunctionwith the
publicationsandpromotionalactivitiesof the CentreforHumanRights;
5.Endorsesthewishofthe Special Rapporteurto bekept regularly informed about the programme of
-,advisoryservicesandtechnicalassistanceoftheCentre forHumanRightssothathewillbe in aposition
to implementhismandateby monitoring progress achieved;
I) 6.'RequeststheSecretary-General,withinthelimitsof theresourcesoftheUnitedNations,to provide
the Special Rapporteurwithanyassistanceneededfor thedischargeof his mandate;
7. RequeststheSpecialRapporteurto submita reportonthe activitiesrelatingto his mandateto the
Commissionat itsfifty-second session;
8.Decidesto considerthis questionat itsfifty-secondsession.
53rd meeting, 3 March1995
[Adoptedwithout avote]
--OP HOME INSTRUMENTS DOCUMENTS INDEX SEARCH
O Copyright1997
Officeof the United Nations HighCommissionerforHuman Rights
Geneva, SwitzerlandIndependenceand impartialityof t...rs and the independenceof lawyerswww.unhcl1r.ch/htmllmenu4/chrresil996.res134.ht1
UNITED NATIONS HCGH CO&JhflSSIOm.RFOR ~~ RIGHTS
Independenceand impartialityof thejudiciary,jurors and assessorsand the
independence oflawyers
CommissiononHuman Rightsresolution1996134
The CommissiononHumanRights,
Guidedby articles7,8, 10and 11ofthe Universal Declaration of HumRights and articles2, 14and
26 ofthe International Covenanton CivilandPoliticalRights, and bearingin mind theVienna
DeclarationandProgramme of Action (AJCONF.157/23),inparticular, Part I, paragraph27, andPart11,
paragraphs88,90 and95thereof,
Convincedthatan independent andimpartialjudiciaryandan independentlegalprofessionare essential
prerequisitesfor theprotection ofhuman'rightsandforensuringthat thereisno discriminationin the
administrationofjustice,
Recalling,itsresolution1994141of 4 March 1994,inwhichit requestedthe Chairmanofthe
Commissionto appoint,for aperiodof threeyears, a specialrapporteuronthe independenceand
impartialityofthejudiciary,jurors andassessorsandtheindependenceof lawyers,
Recalling alsoits resolution5136of 3 March 1995,inwhich itendorsed thedecisionofthe Special
Rapporteurto use, beginningin 1995,the shorttitle"SpecialRapporteur on theindependenceofjudges
and lawyers",
RecallingfbrtherGeneralAssemblyresolution40132of 29November1985,in whichthe Assembly
endorsedtheBasic Principleson theIndependenceof theJudiciary,adoptedby the SeventhUnited
NationsCongressonthePreventionof CrimeandtheTreatmentof Offenders,and Assemblyresolution
401146of 13December1985,
RecallingGeneralAssemblyresolution451166 of 18December1990,in whichthe Assembly welcomed
the Basic Principlesonthe RoleofLawyersandthe Guidelineson the Roleof Prosecutors,adoptedby
the EighthUnitedNationsCongressonthe Preventionof Crimeandthe Treatmentof Offenders,and
invitedGovernmentsto respectthem and totake themintoaccountwithinthe frameworkoftheir
national legislationandpractice,
Recalling alsothe recommendationsadoptedbythe Ninth UnitedNations Congressonthe Preventionof
Crime andthe Treatmentof Offenders, held at Cairofrom29 Aprilto 8May 1995,regarding,among
otherthings,theinvitationaddressedto MemberStatesto ensurethe independenceandimpartialityof
thejudiciaryandtheproperfunctioningof prosecutorial andlegal servicesinthe fieldofpenaljustice
andpoliceaffairs, takingintoaccountthe BasicPrinciplesonthe Independenceof the Judiciary,
Recallingalsothe StatementofPrinciplesof the Independenceofthe Judiciaryadoptedin Beijingin
August 1995bythe SixthConferenceof Chief JusticesofAsiaandthe Pacific,andthe Cairo
Declaration,adoptedinNovember 1995bythe ThirdConference ofFrancophoneMinistersof Justice,
frameworkofhis mandate,withthe CentreforHumanRightsin the fieldof advisoryseryicesand,inthe
technicalcooperation,whichcould contributeto guaranteeingthe independenceofjudges and lawyers,
Reconnizing,the importance ofthe roleof non-governmentalorganizations,bar associationsandLndependenceand impartiality of t...rs theindependence of lawyers http:ilwww.unhchr.ch!'htmlimenu4/chrre!996.res34.ht.
professionalassociationsofjudges in the defenceof theprinciplesofthe independenceof lawyersand
judges,
Notingwith concerntheincreasinglykequent attacksontheir independencesuffered byjudges, lawyers
and court officers,andaware ofthe close linkbetweenthe weakeningof safeguardsforjudges, lawyers
andcourt officersandthefrequency andgravityofviolationsof human rights,
Takingnote of the secondreport(E/CN.4/1996/37)submittedbythe Special Rapporteuron the
implementationof hismandate,
1.Takesnoteof the secondreportsubmittedby the SpecialRapporteuronthe activitiesrelatingto his
mandate;
2. Alsotakes note of the cooperativeworkingmethodsthatthe SpecialRapporteur has adopted to draw
uphis report andimplementhis mandate,as describedin Commissionresolution1994141 ;
''3. Welcomesthe numerousexchangesthe Special Rapporteurhashad withseveralintergovernmental
andinternationalorganizationsandUnitedNationsbodies,andencourageshim to continuealongthis
I ' path,
4.Notes with appreciationthedeterminationofthe SpecialRapporteurto achieveaswide a
disseminationaspossibleofinformationaboutexistingstandardsrelatingto the independenceand
impartialityofthejudiciaryandthe independenceof thelegal professionin conjunction withthe
publicationsandpromotionalactivitiesof the Centrefor HumanRights;
5.InvitestheUnited Nations HighCommissionerforHuman Rightsto continuetoprovide technical
assistanceto trainjudgesandlawyersandtoassociatethe SpecialRapporteurin theelaborationofa
manualon the trainingofjudgesand lawyersin thefieldofhumanrights;
6. Urnesall Govements to assistthe SpecialRapporteurin the dischargeof hismandateandto
transmitto him alltheinformationrequested;
7. EncourarresGovernmentsthatface difficultiesinguaranteeingthe independenceofjudges and
lawyers,or that are determinedto take measuresto implementtheseprinciplesfhther, to consultandto
considerthe servicesoftheSpecial Rapporteur,forinstanceby invitinghimto theircountryif the
Governmentconcerneddeemsit necessary;
8.Requeststhe Secretary-General,within the limitsofthe existingregular budget,to providethe Special
Rapporteurwithanyassistanceneeded for the dischargeofhismandate;
9. RequeststheSpecial Rapporteurto submita reportonthe activitiesrelatingto hismandate to the
Commissionat its fifty-thirdsession,and decidesto considerthis questionatthat session.
52ndmeeting, 19April 1996
[Adoptedwithouta vote]
- . - - -- -- - -- -
TOP HOME INSTRUMENTS DOCUMENTS INDEX SEARCH
O Copyright1997
Office ofthe UnitedNationsHigh CommissionerforHumanRights
Geneva, Switzerland T?depeiidenceand impartialityofthejudiciary http://www.unhchr.ch/htmVmenu4/chn.e h~l1997.res/23
(a> UNITEDNATIONSHIGHCOMMISSIONERFORERTMAN RIGHTS
'+fc'
Independence and impartiality of thejudiciary,jjaarssa sndassessors
andtheindependence of lawyers
Commissionon Human Rights resolution1997123
The Commissionon HumanRights,
"-Guidedby articles 7,8, 10and 11oftheUniversalDeclarationofHumanRightsandarticles2, 14and
I 26of the InternationalCovenantonCivilandPoliticalRights, andbearingin mindtheVienna
DeclarationandProgrammeof Action(AlCONF.157/23),in particularParI,paragraph 27,andPart11,
paragraphs88,90 and95,thereof,
Convincedthatanindependentandimpartialjudiciaryandan independentlegalprofession areessential
prerequisitesforthe protectionof humanrightsandforensuring thatthereis no discriminationin the
administrationofjustice,
Recallingits resolution1994141of4March 1994,in whichit requestedthe Chainnanof the
impartialityofthejudiciary, jurorsandassessorsandtheindependenceof lawyers,ndenceand
Recallin: also itsresolution1995of 3March1995,inwhichit endorsedthe decisionof the Special
Rapporteurto use,beginning in1995,the shorttitle "SpecialRapporteuron the independenceofjudges
andlawyers",
RecallingfurtherGeneralAssemblyresolution40132of29November1985,inwhichtheAssembly
endorsed theBasic PrinciplesontheIndependenceof theJudiciary,adoptedby theSeventh
United Nations CongressonthePreventionof Crimeandthe Treatmentof Offenders,andAssembly
j 1 resolution40146 of 13December 1985,
RecallingGeneral Assemblyresolutio451166 of18December 1990,in which theAssemblywelcomed
the BasicPrinciplesonthe RoleofLawyersandthe Guidelinesonthe Role of Prosecutors,adoptedby
the EighthUnitedNationsCongresson thePreventionofCrimeandtheTreatmentof Offenders,and
invitedGovernmentsto respectthemandto take them into accowithi the frameworkof their
national legislationandpractice,
recall in^ alsotherecommendationsadopteby theNinthUnitedNations Congressonthe Preventionof
Crimeandthe Treatmentof Offenders,held at Caifrom29Aprilto 8May 1995, regarding,among
otherthings,the invitationaddressedto MemberStatesto ensurethe independenceandimpartialityof
thejudiciary and theproper functioningofprosecutorialandlegal servicesin the field ofpenaljustice
andpolice affairs,takingintoaccounttheBasic Principleson theIndependenceof the Judiciary,
1 Recallingfbther the StatementofPrincipleson theIndependenceofthe Judiciaryadoptedin Beijingin
August 1995by the SixthConferenceof ChiefJusticesofAsiaandthe Pacific,andthe Cairo
I Declaration,adoptedinNovember1995by theThirdConferenceof FrancophoneMinisters ofJustice,
Acknowledrrinqthe importance forthe SpecialRapporteurof being ableto cooperateclosely,inthe
framework ofhis mandate,withtheCentreforHumanRights inthe fieldof advisoryservicesand
technicalcooperation, which coucontributeto guaranteeingtheindependenceofjudges and lawyers, kdepgndence and impartialityof thejudiciary http://www.unhchr.ch/html/menu4/chrres/l997.res/23.h
':,
Recognizingthe importance of the roleofnon-governmentalorganizations, barassociationsand
professional associations ojfudges inthe defenceof theprinciplesof the independence of lawyeand
judges,
Noting:withconcernthe increasinglyfrequentattacksontheirindependence sufferedbyjudges, lawyers
andcourt officers,and awareof the close linkbetween the weakeningof safeguardsforjudges, lawyers
andcourt officersandthe frequencyandgravityofviolationsofhumanrights,
Takingnoteof the report submittedby the SpecialRapporteurontheimplementationofhismandate
(E/CN.4/1997/32),
1.Takesnoteofthe reportsubmittedby theSpecialRapporteur onthe activitiesrelatingto hismandate;
2. Alsotakesnoteofthecooperative workingmethods thatthe SpecialRapporteurhas adopted to draw
.-uphisreportandimplementhismaidate, asdescribedin Commissionresolution1994141;
3. Welcomesthe numerous exchanges theSpecialRapporteurhashadwith severalintergovernmental
1 ) andinternationalorganizationsand UnitedNationsbodies,and encourageshimto continue alongthis
path;
4.Noteswith appreciationthedeterminationofthe SpecialRapporteur toachieveaswidea
disseminationaspossibleofinformationaboutexistingstandardsrelatingto theindependenceand
impartiality ofthejudiciary andthe independenceofthe legalprofessionin conjunctionwiththe
publicationsandpromotionalactivitiesofthe Centre forHumanRights;
5. Invites the United NatioHighCommissionerforHumanRightsto continueto providetechnical
assistance to trainjudgesandlawyersandto associatetheSpecialRapporteurinthe elaborationof a
manualonthetrainingofjudges and lawyers inthe fieldofhumanrights;
6.Urgesall Governmentsto assistthe SpecialRapporteur in thedischargeofhismandate and to
transmitto himalltheinformation requested;
7.Rncoura~esGovernmentsthatfacedifficultiesin guaranteeingthe independence ofjudges and
lawyers,orthat are determinedtotakemeasuresto implementtheseprinciplesfurther,to consult andto
considerthe servicesof theSpecialRapporteur,forinstanceby inviting him to theircountryifthe
Governmentconcerneddeemsitnecessary;
I J
8.Decidesto extendthemandateof the SpecialRapporteur fora furtherperiodofthreeyears,requests
himto submitareport onthe activitiesrelatingto hismandateto theCommission at itsfifty-fourth
session, and decidesto considerthis questionatthat session;
9.Beaueststhe Secretary-Generalw , ithinthelimitsofthe regular budget,to providethe Special
Rapporteurwithanyassistanceneeded forthedischargeofhis mandate;
10. Recommendsthe followingdraftdecisionto theEconomicandSocialCouncilforadoption:
For the text, seechap.I, sectB,draftdecision S.]
56thmeeting
11April 1997
[Adoptedwithout avote.Seechap. VIII.]
Ir_lQ9HOME INSTRUMENTS DOCUNENTS LNDlEX SEARCH
03/09/19 3:82Jndepeadenceand impartialityof thejudiciary
OfficeoftheUnited NationsHigh Commissione forHumanRights
Geneva,SwitzerlandIndependenceand impartialityof t...rs and the independenceof lawyersww.unhchr.chihtm1/me1 n99S.c,hr111
n :t3
&, $ UNITED NATIONSHIGH COMh4ISSIONERFOR HLTMAN RIGHTS
&. .-
.+.r,
[uneditedtext-not official document]
Independenceand impartialityof thejudiciary, jurors
and assessorsand theindependenceof lawyers
CommissiononHumanRights resolution 1998135
The Commissionon Human Rights,
Guidedbyarticles7, 8, 10and 11ofthe UniversalDeclarationof HumanRightsandarticles2, 14and
i l 26 ofthe InternationalCovenanton CivilandpoliticalRights,and bearingin mindthe Vienna
Declaration andProgrammeof ActionNCONF.157123),in particular, PaIparagraph 27, and Part11,
paragraphs88,90 and 95thereof,
Convincedthat anindependentand impartialjudiciaryandan independentlegalprofessionare essential
prerequisitesforthe protectionofhumanrightsandforensuring thatthereis no discriminationin the
administration ofjustice,
Recallingitsresolution1994141of4 March1994,in whichit requestedthe Chairmanof the
Commissionto appoint,for aperiodof three years,a specialrapporteuronthe independenceand
impartialityofthejudiciary, jurorsandassessorsand theindependenceof lawyers,
Recallingalso its resolution1995/36of 3March 1995,in which itendorsedthe decisionof the Special
Rapporteur touse,beginningin 1995,the shorttitle "Special Rapporteur onthe independenceofjudges
and lawyers",
Recalling further General Assembly resolutionf29November 1985,in whichthe Assembly
endorsed the BasicPrinciplesonthe IndependenceoftheJudiciary,adoptedbythe Seventh
resolution0/146of 13December 1985,tion of Crime andthe Treatmentof Offenders, andAssembly
RecallingGeneralAssemblyresolution5/166of 18December 1990,in which the Assemblywelcomed
theBasicPrinciplesonthe RoleofLawyersandthe Guidelinesonthe Role ofProsecutors,adoptedby
theEighth UnitedNations Congressonthe Preventionof Crimeand theTreatmentof Offenders, and
invited Governmentsto respectthem andto takethemintoaccountwithinthe frameworkoftheir
national legislationandpractice,
Recallingalso therecommendationsadoptedbythe Ninth United Nations Congressonthe Preventionof
Crime andthe Treatmentof Offendersregarding, amongotherthings,theinvitationaddressedto
MemberStatesto ensurethe independenceandimpartialityofthejudiciary andthe proper functioning
BasicPrinciplesonthe Independenceofthe Judiciary,penaljustice and police affairs,taking intoaccountthe
RecallingfurthertheStatementof Principlesonthe Independenceof the Judiciary inBeijingin
August 1995bythe SixthConferenceof ChiefJusticesofAsia andthe Pacific,andthe Cairo
Declaration, adoptedinNovember 1995bythe ThirdConferenceof FrancophoneMinistersofJustice,
Acknowledgingthe importancefor the SpecialRapporteurof beingableto cooperateclosely, inthe
frameworkofhismandate, withthe Ofice of the UnitedNations HighCommissionerforHuman Rights Independenceand inlpartialityof t...rs and the independenceof lawyhttp:/lwww.unhchr.chihtmlimenuJ~chnes/I998.resi35.
inthe fieldofadvisoryservicesandtechnicalcooperation,which couldcontributeto guaranteeingthe
independenceofjudges andlawyers,
Recognizingtheimportanceofthe roleofnon-governmentalorganizations,barassociationsand
professionalassociationsofjudges inthe defenceofthe principlesof theindependenceof lawyers and
judges,
Notinr~withconcernthe increasinglyfrequentattacksontheir independence sufferedbyjudges, lawyers
andcourtofficers,and awareof the close linkbetweentheweakeningof safeguardsforjudges, lawyers
and court officersand thefrequencyandgravityofviolationsof humanrights,
Takingnoteofthereport(ElCN.41199813a 9nd Add.1-5)submittedbythe SpecialRapporteuronthe
independenceofjudges andlawyersontheimplementationof hismandate,
1.Takesnote ofthereportsubmittedbythe SpecialRapporteuron the activitiesrelatingto hismandate;
2. Also takes noteofthe cooperativeworkingmethodsthatthe SpecialRapporteurhas adopted todraw
( uphisreportandimplementhismandate,asdescribedin Commissionresolution1994141 ;
3. WelcomesthenumerousexchangestheSpecialRapporteurhashadwith severalintergovernmental
and internationalorganizationsandUnitedNations bodies,and encourages himto continuealongthis
path;
4.Noteswithappreciationthe determinationofthe Special Rapporteurto achieveaswidea
disseminationaspossibleof informationabout existingstandardsrelatingto the independenceand
impartialityofthejudiciaryandthe independence ofthe legalprofessionin conjunctionwiththe
publicationsandpromotionalactivitiesofthe Officeof theUnitedNations HighCommissionerfor
Human Rights;
5.InvitestheUnitedNationsHighCommissionerfor HumanRightsto continueto providetechnical
assistanceto trainjudges andlawyersandto associatethe Special Rapporteurin the elaborationof a
manualonthetraining ofjudgesand lawyers inthe fieldof humanrights;
6.Urgesall Governmentsto assisttheSpecialRapporteurin the dischargeof hismandateandto
transmitto himallthe informationrequested;
i 1 7.EncouragesGovernmentsthat facedifficultiesin guaranteeingthe independenceofjudges and
lawyers,orthat are determinedto takemeasuresto implementtheseprinciplesfurther,to consultandto
consider the servicesof thepecialRapporteur,for instanceby invitinghimto theircountryif the
Governmentconcerned deemsit necessary;
8.Requeststhe SpecialRapporteurto submita reportonthe activitiesrelatingto his mandateto the
Commissionatits fifty-fifthsession,anddecidesto considerthis questionatthat session;
9. Requeststhe Secretary-General, withinhe limitsoftheUnitedNations regularbudget,to providethe
SpecialRapporteurwith anyassistanceneededforthe dischargeof his mandate.
51stmeeting
17 April 1998
I [Adoptedwithoutavote.Seechap.VIII.]
I
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O Copyright1998
Officeof the United NationsHighCommissionerfor HumanRights
Geneva, Switzerland NATIONS UNES UNITED NATIONS
-
DATO'PRRAM CUMmSWAMY
Special Rapporteur on the Independence of Judges and Lawyers
Rapporteur special sur I'indEpendance des judges et des avocats
I Relator Especial sobre la independencia de 10s jueces y abogados
August 29, 1995
BY FAX
4576848
I ' ' YAB Tan Sri Musa Hitam
1 Chairman,51st Session,
I U.N. Commission on HiurnanRights
i Geneva
YAB Tan Sri,
MalaysianJudiciary
-----------------
The negative developments in the Malaysian judicial system
are a matt5r of concern to many. As you will appreciate the problems'
fall 'within my rnandate for investigations. If I do not investigate and
report to the Commission I will be failing on my mandate.
From what I have seen and heard todate the judicial
system in the country needs reform before it deteriorates further and
described as "corrupt". What happened in the Ayer Molek case is
just the tip of the iceberg.
' ' The entire system of appointment to the Bench and
positivensmeasuresin takenudto bring theturesystem withinbe internationald
standards. Quality on the Bench has deteriorated to such an extent
that basics are often overlooked. For example in the Ayer Molek'case
even the Chief 3ustice overlooked the constztutionaltity of the sitting
of bis own coust. Appointments and promotions today are based not
on ones learning, impartiality and integrity but for extraneous
c~mmunityrelwill be mostudiaffected.ibrThey Iwillehaveursno confidencenessin the
judicial system.
It is not going to be pleasant for me to report 6 detail
the shortcomings of the judiciary of my own couatry to the
Commission. Nevertheless, between now and tbevernmentd ofto 'hprovear the
ositive measures taken-
. . md?r?q-s<*
atten-
Minister when you do meet him.UNITED
NATIONS
Economicand Social Distr.
GENERAL
Council
E/CN.4/1996/37
1 March 1996
ENGLISH ONLY*
COMMISSION ONHUMAN RIGHTS
Fifty-secondsession
Item 8 of the provisionalagenda
QUESTION,OFTHE HUMAN RIGHTS OF ALL PERSONSSUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT
Report of the Special Rapporteuron the independenceof
judqes and lawyers, DatorParam Cumaraswamv,submitted
pursuant to Commission on Human Riqhts resolution995/36
* In view of its length, the presentdocument is being issued in the
original language only, theConference ServicesDivision of the United Nations
Office at Geneva having insufficientcapacity to translate documents that
greatly exceedthe 32-page limit recommendedby the GeneralAssembly (see
Commission resolution 1993/94, para. If.
GE.96-10779 (E) CONTENTS
Paraqraphs Paqe
Introduction ....................... 1- 3 4
I . TERMSOFREFERENCE ................. 4- 5 4
.................
I1 . METHODSOFWORK 6- 7 6
111 . ACTIVITIES OF THE SPECIAL RAPPORTEUR ........ 8 . 65 7
A. Consultations ......:.......... 9 . 11 7
B. Visits ..................... 12 . 14 8
C. Communications with Governments ........ 15 . 16 8
D. Communicationswith intergovernmental and
non-governmental organizations .........
E. Cooperation with other United Nations
procedures and bodies .............
IV. THEORETICAL ISSUESOF SPECIAL IMPORTANCE ......
A. The use of "faceless" judgesin Colombia
and Peru ....................
B. Establishmentof an International Criminal
court .....................
C. Johannesburg Principleson National Security.
Freedom ofExpression and Access to
Information ..................
D. The media and the judiciary ..........
E. Beijing State of Principles of the Independence
of the Judiciaryin the LAWASIA Region .....
F. Mechanisms for appointment of judges ......
G. Conflicts betweenthe legal profession
andthe judiciary ..............
H. Commercializationof the legal profession ...
I. The Cairo Declaration ............. CONTENTS (continued)
Paraqraphs Paqe
V . SITUATIONS .....................
A. General ...................
B. Situationsin specific countriesor territories
Albania ....................
Argentina ...................
Australia ...................
Cambodia ....................
China .....................
Colombia ....................
Egypt .....................
Hong Kong ...................
Japan .....................
Malaysia ....................
Mexico .....................
Namibia ....................
Nigeria ....................
Pakistan .....................
Peru ......................
Singapore ...................
Sudan .....................
Tunisia ....................
United Kingdom of GreatBritain and
Northern Ireland ................
Uzbekistan ...................
Yemen ......................
Zaire .....................
CONCLUSIONS AND RECOMMENDATIONS .........page 4
INTRODUCTION
1. The present report is submittedpursuant toCommission on Human Rights
resolution 1995/31 of 3 March 1995. This report isthe second presented to
the Commission on Human Rights by DatotParamCurnaraswamy since the mandatewas
establishedby the Commission in itsresolution 1994/41 of 4 March 1994 and
endorsed by the Economicand Social Council inits decision 1994/251
of 22 July 1994.
2. Chapter I of the present report contains the terms of reference forthe
discharge of the mandate in conformitywith the aforementioned resolution and
for requests made to the Special Rapporteur by the Commissionon Human Rights
in other resolutions. Chapter I1 briefly refers to themethods of work
applied by the Special Rapporteur in the dischargeof the mandate. In
chapter 111, the SpecialRapporteur presentsan account of activities hehas
undertaken during the past year. Chapter IV provides a brief discussionon
various theoretical issues that the Special Rapporteur considers tobe of
particular importance for the development of an independent judiciary.
Chapter V contains an analysis of information receivedconcerning attackson
the judiciary,a summary of the allegations transmitted to Governments,
information received fromGovernments in responseto his initial communication
transmitted inOctober 1994 and in response to the allegations transmittedas
well as follow-upwith authorities and sources,and, where appropriate,
specific comments, conclusions andobservations. Chapter VI contains a
summary of the Special Rapporteur's communications with other international
organizations,particularly theWorld Bank, andwith the Council of Europe.
Finally, in chapter VI, theSpecial Rapporteur setsout future activitiesthat
he intends to undertake andhis conclusions.
3. The appendix containsa list of the Governments, courtsand judges,
ombudsmen, universities, BarAssociations,and Association of Lawyers
that have repliedto the initial communicationtransmittedby the
Special Rapporteur inOctober and November1994 requesting information
relevant to his mandate.
I. TERMS OF REFERENCE
4. At its fiftieth session, the Commission on HumanRights, in
resolution 1994/41, noting both the increasing frequencyof attacks on the
independenceof judges, lawyersand court officials and the link which exists
between the weakening ofsafeguards for the judiciary and lawyersand the
gravity and frequency of violations of human rights, requested theChairman of
the Commission to appo'int,for a period of three years, a special rapporteur
whose mandate would consistof the following tasks: (a) to inquire into any
substantial allegationstransmitted to him and to reporthis conclusions
thereon; (b) to identifyand record not only attacks on the independenceof
the judiciary, lawyersand court officialsbut also progress achievedin
protecting and enhancing their independence,and make concrete recommendations
including the provision of advisory servicesor technical assistance when they
were requested by the State concerned; and(c) to study, for the purpose of
making proposals, important and topical questions ofprinciple with a view to
protecting and enhancing the independenceof the judiciaryand lawyers.5. Several resolutions adopted by the Commission on Human Rights at its
fifty-firstsession are also pertinent to themandate of the Special
Rapporteur and have been taken into considerationin examining and analysing
the informationbrought to his attention with regard to the different
countries. Theseresolutionsare, in particular:
(a) Resolution 1995/24, entitled "Rights of persons belonging to
national or ethnic,religious andlinguistic minorities",in which the
Commission urged the specialrapporteurs to continue to givedue regard,
within theirrespectivemandates, to the Declarationon the Rights of Persons
Belonging to Nationalor Ethnic, Religious and Linguistic Minorities;
(b) Resolution 1995/40, on the promotion of the right to freedom
of opinion and expression,in which the Commission invited the
special rapporteursto pay attention to the situation of persons detained,
subj'ectedto violence, ill-treatedor discriminated againstfor having
exercised the right to freedom of opinion and expression;
(c) Resolution 1995/41, entitled "Human rights and theadministration
of justice, in particular of children and juveniles in detention", in which
the Commission called upon the special rapporteursto continue. to provide,
wherever appropriate,specific recommendations relatingto the effective
protection of human rights in the administrationof justice;
(d) Resolution 1995/43, entitled "Human rights and terrorism",in which
the Commissionurged all thematic special rapporteursto address as
appropriate the consequences of the acts, methods and practices of terrorist
groups in their reports tothe Commission;
(e) Resolution 1995/53, entitled "Advisoryservices and the Voluntary
Fund for Technical Cooperationin the Field of Human Rights", in which the
Commission invited the specialrapporteursto continueto include in their
recommendations,whenever appropriate,proposals forspecific pro'jectsto be
realized underthe programme of advisory services;
(f) ~esolution 1995/75, entitled "Cooperation with representativeo sf
United Nations human rights bodies", in which the Commission requested all
representativesof human rights bodies to continueto take urgent steps, in
conformity with their mandates, to help prevent the hampering of access to
United Nations humanrights proceduresin any way and to help prevent the
occurrence of intimidationand reprisals against persons who seek to cooperate
or have cooperatedwith United Nations humanrights procedures, as well as
relatives of victims of human rights violations, andto continue to include in
their reports to the Commission on Human Rights areference to allegationsof
intimidationor reprisal and of hampering of access to United Nations human
rights procedures,as well as an account of action taken by them in that
regard;
(g) Resolution 1995/79, entitled "Rightsof the Child", in which the
Commission recommendedthat special rapporteurs payspecial attention to
particular situations in which childrenwere in danger; (h) Resolution 1995/80, entitled "Comprehensive implementatioo nf and
follow-up to the Vienna Declaration and Programmo ef Action", in which the
Commission called upon all special rapporteursto take fully into account the
recommendations containedin the Vienna Declarationand Programme of Action
within their respectivemandates;
(i) Resolution 1995/85, entitled "The elimination of violence against
women", in which the Commission requested other special rapporteurt so
cooperate with and assist the Special Rapporteur on violence againstwomen in
the performanceof the tasks andduties mandated, and in particular to respond
to requests forinformation on violence against women,its causes and its
consequences;
(j) Resolution 1995/86, entitled "Questionof integrating the human
rights of women into the human rights mechanismsof the United Nations",in
which the Commission requested special rapporteurs regularly and
systematically toinclude in their reports information onviolations of the
human rightsof women;
(k) Resolution 1995/87, entitled "Humanrights and thematic
procedures", in whichthe Commission requestedthe thematic special
rapporteurs to include in their reports commentson problems of responsiveness
and the result of analyses, as appropriate,in order to carry out their
mandates even more effectively, and to include also in their reports
suggestionsas'to areas where Governmentsmight request relevant assistance
through theprogramme of advisory services administered by the Centre for
Human Rights. The Commissionalso called on the specialrapporteurs to
include in their reports gender-disaggregated dataand to address the
characteristicsand practice of human rights violationsthat were specifically
or primarily directed against women,or to which womenwere particularly
vulnerable.
11. METHODS OF WORK
6. The Special Rapporteur has followed the methods of work described in the
first report of his tenure (see E/CN.4/1995/39,paras. 63-93) and approvedby
the Commission on Human Rights in its resolution1994/41.
7. Seeking to avoidunnecessary duplicationof the activities of the
thematic mechanisms (seeE/CN.4/1995/34,paras. 8 and 9), either among
thematic rapporteurs or with country rapporteurs,the Special Rapporteurhas
been involved in several cooperative initiatives. Duringthe past year the
Special Rapporteur has joined with other Special Rapporteurs and Working
Groups to transmiturgent appealson behalf of individuals (seebelow, appeals
to China, para. 133; Nigeria (2), paras. 183, 187; Uzbekistan, para. 241).
Further, the Special Rapporteur andthe Special Rapporteur on extrajudicial
summary or arbitrary executions, the Special Rapporteur on the question of
torture and the Chairman of the Working Groupon Enforced or Involuntary
Disappearancestransmitted an urgent appeal to the Government ofPeru in which
they expressed their concern at the promulgation of amnestylaws. 111. ACTIVITIES OFTHE SPECIAL RAPPORTEUR
8. The following sectionsgive an accountof the activitiescarried out by
the Special Rapporteur in the implementationof the mandate entrusted tohim
by the Commission on HumanRights.
A. Consultations
9. The Special Rapporteur visitedGeneva for hisfirst round of
consultations from 5to 11 February 1995 in order to present his reportto
the fifty-first sessionof the Commissionon Human Rights. He also took this
occasion to hold an open meeting with all interested non-governmental
organizations. The meeting provided an opportunity forthe Special Rapporteur
to establish a meaningful and useful dialogue with the NGO communityand he
hopes to continue this dialogue at future sessions of the Commission. During
this round of consultations,the Special Rapporteur alsoheld meetings with
representativesfrom the PermanentMissions ofthe United Statesof America
and Canada to discuss issues relevant to his mandate.
10. Within the framework of related activitiesof the Commission on Human
Rights, the Special Rapporteur participatedin the second meeting of special
rapporteurs,special representativesand chairpersons of workinggroups of
the special procedures of the Commissionon Human Rights and ofthe
advisory services programme, which took place from 29 to 31 May 1995. The
Special Rapporteur also held his second roundof consultationsat this time
during which heheld a meeting with officials from the Office of the
United Nations High Commissioner forRefugees in connection with his proposed
mission to the Central Asian Republics.
11. The Special Rapporteur visited Geneva for his 'thirdround of
consultationsfrom 20 to 24 November 1995 inorder to hold consultationswith
the Secretariatand with the High Commissioner forHuman Rights. During this
period, the Special Rapporteur alsoattended a meeting of the Working Groupon
Arbitrary Detention during whichthere was an interesting exchangeof opinions
with the members of the Working Groupon vzrious issues of concernto each
mandate. The SpecialRapporteur took alsothis occasion to meet with the
Chief of the Advisory Services,TechnicalCooperation and InformationBranch
and with the Human Rights Officer responsible forthe drafting of a manual to
be used to train judges and lawyers, and for coordinatingprogrammes organized
by the Centre for Human Rights. In this meeting the Special Rapporteur
discussed theneed for cooperationbetween himselfand the branch with a view
to enhancing training programmes forjudges and lawyers. The Special
Rapporteur alsomet with the Charge d'affaires of the Permanent Mission of
Albania to the United Nations Office at Geneva, the Ambassador of Colombia,
the Charge5d'affaires of the PermanentMission of Nigeria (in which
Mr. Bacre Ndiaye, the Special Rapporteuron extrajudicial, summaryor
arbitrary executions also participated)and a representative from the
PermanentMission of Pakistanto discuss issuesof concern to the
Special Rapporteur in theirrespective countriesand, in the case of Colombia,
Nigeria and Pakistan,to discuss the possibilityof undertaking a mission to
,visitthose countries. B. Visits
12. The Special Rapporteurattended an internationalconference on "TheMason
Court and Beyond" in Melbourne, Australia from 8 to 10 September 1995. This
conference was to commemorate the retirementof Sir Anthony Mason as
Chief Justice of the High Court of Australia. The Special Rapporteur,at the
conclusion of the conference,addressed participantson juridical
independence/theconcerns of the United Nationsfor the independenceof judges
and lawyers.
13. On 14 July 1995, the Special Rapporteur,while on a private visitto the
United Kingdom, visited Belfast fora preliminaryinvestigationinto
allegationshe had received about executiveinterferenceinto the
administrationof justice in Northern Ireland. Duringthe visit he held
meetings with representatives ofNGOs and, in particular, the Committee on the
Administrationof Justice.
14. The Special Rapporteur,while on a private visit to Australia, visited
Melbourne tomeet the Attorney General with regard to allegations of
interference intothe independenceof the legal profession in the State of
Victoria by way of reforms under which a new licensing system will be created.
C. Communicationswith Governments
15. During the period under review,the SpecialRapporteur
transmitted20 urgent appeals to the following 12 Governments: Albania;
Cambodia; Colombia; China (jointappeal); Egypt; Haiti (jointappeal);
Hong Kor?g;Mexico (2);Namibia; Nigeria (1 urgent appeal and 3 joint appeals);
Peru (4 urgent appeals and 1 joint appeal); Uzbekistan. The Special
Rapporteur transmittedeight communicationsto the following seven
Governments: Argentina; Egypt (2);Nigeria; Peru; Sudan; Zaire;Yemen. He
also transmitted two communications to State governments inAustralia.
16. The Special Rapporteurhas sought fromthe Governments of the Central
Asian Republics (Kazakstan,Kyrgyzstan, Tajikistan,Turkmenistan,Uzbekistan)
permission to undertakemissions to those countries. To date, the Government
of Kazakstan has replied positivelyand responses fromthe other Governments
are awaited.
D. Communications with interqovernmental ann don-qovernmentalorqanizations
17. As there are numerous intergovernmental and non-governmental
organizationsinvolved in carrying out training programmes for judges and
lawyers, the Special Rapporteurhas made every effort to establish a dialogue
with those organizations and to seek their cooperation. The following section
contains a brief smary of the exchanges the Special Rapporteur has had with
these organizations.
1. Council of Europe
18. On 18 November 1994, the Special Rapporteurreceived a letter from
the Council of Europe in replyto the Special Rapporteur's communicationsent
to the Secretary-General ofthe Council of Europe concerning theindependenceof the judiciary. This communicationincluded the text of
RecommendationNo. R (94) 12 of the Committeeof Ministers on independence,
efficiency and role of judges,which was adopted by the Committee on
13 October 1994. The Committee of Ministers recommendedthat States adopt or
reinforce all measures necessaryto promote therole of individualjudges and
the judiciary as a whole and strengthen theirindependence and efficiencyby
implementing,in particular, sixprinciples.
19. Principle I contains general principleson the independence of judges,
which are as follows:
"1. All necessary measuresshould be taken to respect, protect and
promote the independence of judges.
"2. In particular, the following measuresshould be taken:
"a. The independence of judges should beguaranteed pursuant to
the provisions of theConventionand the constitutional
principles, for exampleby inserting specific provisions in
the constitutionsor other legislation or incorporating the
provisions of this recommendationin internal law. Subject
to the legal traditionof each State, suchrules may provide,
for instance,the following:
"i. decisionsof judges should not be subject to any
revision outside any appeals proceduresas provided by
law;
"ii . the terms of office of judges and their remuneration
should be guaranteed by law;
"iii
. no organ other thanthe courts themselves should decide
on its own competence,as defined by law;
"iv. with the exceptionof deci.sionson amnesty, pardon or
similar, the Governmentor the administration should
not be able to take any decision which invalidates
judicial decisionsretroactively;
-b. The executive and legislative powersshould ensure that
judges are independentand that steps are not taken
which could endanger the independenceof judges.
All decisions concerningthe professionalcareers of judges
should be based on objective criteria and the selectionand
career of judgesshould be based on merit, having regard to
qualifications,integrity,ability and efficiency. The
authority taking the decision on the selection and career of
judges should be independentof government and
administration. In order to safeguard its independence,
rules should ensurethat, for instance, itsmembers are
selected by the judiciary and that the authority decides
itself on its procedural rules.page 10
However, where the constitutionalor legal provisions and
traditions allow judges to be appointed by government,there
should be guarantees to ensure that the procedures toappoint
judges are transparentand independent inpractice andthat
the decisions will not beinfluenced by any reasons other
than those related to theobjective criteria mentioned above.
These guaranteescould be, for example, oneor more of the
following:
"i. a special independentand competent bodyto give the
Government advice which it follows in practice; or
lii. the right for an individualto appeal against a
decision to an independentauthority; or
"iii. the authority which makesthe decision safeguards
against undueor improper influences.
"d. In the decision-making process,judges should be independent
and be able to act without anyrestrictions, improper
influence, inducements, pressures,threats or interferences,
direct or indirect, from any quarter or for any reason. The
law should provide for sanctions against persons seeking to
influence judges in any such manner. Judges shouldhave
unfettered freedom to decide cases impartiallyi ,n accordance
with their conscienceand their interpretation ofthe facts,
and in pursuance of theprevailing rules of the law. Judges
should not be obliged to report on the merits oftheir cases
to anyone outside the judiciary.
"e. The distributionof cases should not be influenced bythe
wishes of any party to a case or any person concerned with
the results of the case. Such distribution may,for
instance, be made by drawing lotsor a system for automatic
distribution according to alphabetical order or some similar
system.
"f. A case should not be withdrawn from a particular judge
without valid reasons, suchas cases of serious illness or
conflict of interest. Any such reasons and the procedures
for such withdrawal shouldbe provided for by law and may not
be influencedby any interest of the Government or
administration. A decision to withdraw a case from a judge
should be taken by an authority which enjoys the same
judicial independenceas judges.
"3. Judges, whether appointed or elected, shallhave guaranteedtenure
until a mandatory retirement age or the expiry of their term of office,
where such exists." page 11
20. Principle 11, which concerns the authority of judges, reads as follows:
"1. All persons connectedwith a case, including State bodiesor their
representatives,should be subject to the authorityof the judge.
"2. Judges should have sufficient powersand be able to exercise them
in order to carryout their duties andmaintain their authority andthe
dignity of the court. "
21. Principle 111, which deals with proper working conditions of judges,
reads as follows:
"1. Proper conditions should be provided to enable judges to work
efficientlyand, in particular,by:
"a. recruiting a sufficient numberof judges and providing for
appropriate training such as practical training in the courts
and, where possible,with other authoritiesand bodies,
before appointmentand during their career. Such training
should be free of charge to the judge and should in
particular concernrecent legislation and case-law. Where
appropriate, the training should includestudy visits to
European and foreign authorities,aswell as courts;
"-. ensuring that the status and remuneration of judges is
commensurate with the dignity of their profession and burden
of responsibilities;
-c. providing a clear structurein order to recruit and retain
able judges;
-. providing adequatesupport staff and equipment, in particular
ogfice automation and data-processing facilities, to ensure
that judges can act efficientlyand without undue delay;
-e. taking appropriate measures to assign non-judiciat lasks
to other persons, in conformity with Recommendation
No. R (86) 12 concerning measures to prevent and reduct ehe
excessive workload in the courts.
"2. Al.1necessary measu'resshould be taken to ensure the safety of
judges, suchas ensuring thepresence of security guards on court
premises or providing policeprotection for judges who may become or are
victims of serious threats."
22. Principle IV,which deals with associationsof judges, reads as follows:
"Judges shouldbe free to form associations which, either alone or with
another body,have the task of safeguardingtheir independenceand
protect their interests."
23. Principle V, which deals with judicialresponsibilities, readsas
follows : "1. In proceedings,judges have the duty to protect the rightsand
freedoms of all persons.
"2. Judges have the duty and should be given the power to exercise
their judicial responsibilitiesto ensure that thelaw is properly
applied and cases are dealt with fairly, efficiently and speedily.
"3. Judges should inparticular havethe following responsibilities:
"a. to act independentlyin all cases and free fromany outside
influence;
"b. to conduct cases in an impartial manner in accordancewith
their assessment of the facts and their understandingof the
iaw, to ensure that afair hearing is given to all parties
and that the procedural rightsof the parties are respected
pursuant to the provisions of the Convention [for the
Protection of Human Rights andFundamentalFreedoms];
-c. to withdraw from a case or decline to act where there are
valid reasons,and not otherwise. Such reasons shouldbe
defined by law and may,'for instance, relate to serious
health problems, conflicts of interest orthe interestsof
justice;
-d. where necessary, to explain in an impartial manner procedural
matters to parties;
-e. where appropriate,to encourage the partiesto reach a
friendly settlement;
-f. except where thelaw or established practice otherwise
provides, to give clear and complete reasons fortheir
judgments, using language whichis readily understandable;
"q. to undergo any necessary trainingin order to carry out their
duties in an efficient and propermanner."
24. PrincipleVI, which deals with failure to carry outresponsibilitiesand
disciplinaryoffences, reads as follows:
"1. Where judges fail to carry out their duties in an efficient and
proper manner or in the event of disciplinary offences, all necessary
measures which do notprejudice judicialindependence shouldbe taken.
Depending on the constitutional principlesand the legal provisions and
traditions of each State, such measuresmay include, for instance:
"-. withdrawal of cases fromthe judge;
"b. moving the judge to other judicial tasks within the court; page 13
"-. economic sanctions such asa reduction in salary for a
temporary period;
"-. suspension.
n2. Appointed judges may not be permanently removed fromoffice without
valid reasonsuntil mandatory retirement. Such reasons,which shouldbe
defined in precise terms bythe law, could apply in countries where the
judge is elected for a certain period, or may relate to incapacity to
perform judicial functions, commission of criminal offences or serious
infringementsof disciplinary rules.
"3. Where disciplinary measuresunder paragraphs 1 and 2 of this
article need to be taken, Statesshould consider setting up, by law, a
special competent body which hasas its task to apply any disciplinary
sanctions and measures, where they are not dealt witb hy a court, and
whose decisions shall be controlledby a superior judicial organ,or
which is a superior judicial organ itself. The law shouldprovide for
appropriate procedures toensure that judges ln question are given at
least all the due process requirementsof the Convention,for instance
that the case shouldbe heard within a reasonable time and that they
should have the right to answer anycharges."
25. On 5 January 1995 the Special Rapporteur receiveda communication from
the Council of'Europe in response to his letter of 12 December 1994in which
he asked the Council of Europe to provide him with informatioo nn training
programmes for judges undertaken by the Council in different countries of the
region, in particular those of the Central AsianRepublics. The Council of
Europe attached to its communicationa copy of its 1993 annual report
concerning its cooperationand assistanceprogrammes with Central and
Eastern European countries,including some general information concernin ghe
contents of the programme and some informationabout cooperationwith the
countrieswhich are of particular interestto the Special Rapporteur. The
report notes that the Council of Europe has cooperatedactively with other
international institutions involved in providing assistanceto democratic
reforms, in particular the European Union. Also, the Councilof Europe and
the European Commissionhave signed agreements forthe implementation ofjoint
programmes of cooperation inAlbania for the promotion of human rights and the
rule of law, and in the Baltic countries for legal reform and democracy.
Finally, the Council of Europe and the Commission,in its capacity of
coordinatorof the Group of 24 Governmentsproviding funds for development
assistance (G-24),organized inStrasbourg,on 6 and 7 December 1993, a
conference on democratic institution-building.
26. In its communication, theCouncil statedthat the cooperationwith the
five Central Asian Republics, (Kazakstan,Kyrgyzstan, Tajikistan, Turkmenistan
and Uzbekistan) that the Special Rapporteurmentioned in his letter is less
developed than with the 17 countries where theCouncil of Europe is currently
operating on a regular basis and which are either members of the Council of
Europe or have applied for membership. It also indicated that if the Council
of Europe were to receive a request fortechnical cooperationand assistance page 14
from other countries, it was likely that the Council would respond to them
within the available budgetarymeans followingdecisions on a case-by-case
basis by the Committee of Ministers.
27. The Special Rapporteuralso received informationabout the Council's
"Themis Plan", which offers members of the legal professionsa training
programme in the relevantfields based on the principles of the rule of law
and respect forhuman rights. The objective ofthis plan is to ensure that
the legislative reformsin the new democraciesare genuinelyimplemented as
intended by the legislators.
28. The Council also submittedadditional reports for the Special
Rapporteur's consideration, includingdocuments relating to the Themis
programmes for the development oflaw, the role of the judicial service
commission, therole of the judge in a democratic society, the implementation
of activities in 1994, and the Pan-European conference onthe transformation
of the procuratora into a body compatible with the democraticprinciples of
law.
29. The Special Rapporteurwelcomes these developmentswhich provide
guidelines for implementing at the domestic level the Basic Principleson the
Independenceof the Judiciary. As a follow-up, the Special Rapporteur is
inquiring into the numberof countries in the European Union which have
adopted and implementedthese guidelines.
30. The communicationof 18 November 1994 from the Council of Europe also
indicated thatsince 1990 the Council of Europehas been engaged in a number
of projects in Central and Eastern Europe aimed at strengtheningthe
.independenceand impartialityof the judiciary. Thiscommunicationalso drew
the attention of the Special Rapporteur to thejurisprudenceof the European
Court and Commission on Human Rights under article6 of the European
Convention.
2. Inter-ParliamentaryUnion
31. On 28 October 1994, the Special Rapporteur received a communicationfrom
the Secretary-Generalof the Inter-ParliamentaryUnion in reply to his initial
request for the cooperationof the Inter-ParliamentaryUnion with regard to
his mandate.
32. The Secretary-General indicated that the IPU, as the world organization
of national parliaments,does not pursue a particular causelike many
non-governmentalorganizationsbut rather endeavours, accordingto its
statutes, to contribute to thedefence and the promotion ofhuman rights in
general. This is done, first of all, on a political level within the
frameworkof the Inter-Parliamentary Conferences,which in the past years have
adopted several resolutionson human rights topics, most recently on
strengthening nationalstructures,institutions and organizationsof society
which play a role in promoting and safeguardinghuman rights and international
cooperationand national action to support socialand economicdevelopment and
,efforts to combat poverty (Copenhagen, September1994). In May 1993, a
symposium entitled "Parliament: Guardian of HumanRights" discussedthe page 15
specific role of parliamentarianswith regard to the protection and promotion
of human rights. The questionof the independence of the judiciary assuch
was not addressed on these occasions.
33. However, the Secretary-General did indicate that questionsrelating to
the concept of the independence of thejudiciary, itsmeaning and consequences
come up from time to time within theUnion's work for the human rights of
members of parliament. He informed theSpecial Rapporteurthat the
Inter-Parliamentary Council set up in 1976 a Committee onthe Human Rights of
Parliamentarianswhich deals with complaints concerningthe violation of the
human rights of parliamentarians. Healso attached a copyof a brochure on
the Committee's function. The Committee brings the allegationssubmitted to
it to the attention ofthe parliamentaryauthority of the country concerned
and requests theirobservations thereon. All too often, the authorities,
referring to the separationof powers and the independence of the judiciary,
refuse to comment on the allegationsif they relate to an ongoing trial.
34. Thus, in a recent casewhere allegations of torture andof violations of
the right to a fair trial were raised, the Speaker of the relevantnational
parliament stated, inter alia, thatthe principle of separation of powers
barred the legislature and the judiciary from querying, criticizingand
interferingin'the affairs, processes and activities of each other and that it
was therefore not possible forhim to provide any informationon the ongoing
trial. In the confidentialdecision adoptedby the Committeein this case, it
considered that an"MP must be entitled to enquire into reported human rights
violations, including those relatint go the lack of independence ofthe
Judiciary, whereverthey occurand especially in their own countries";it
considered thereforethat "theseparation of powers cannot be construed as
preventing Parliamentarians from concerning themselveswith human rights
violations in their countriesand elsewhere". TheCoqittee continuedby
stating that "theindependenceof the Judiciaryaims essentiallyat protecting
the Court from interferenceby the Executive and that MPsr concern for human .
rights and relevant inquiries may in this regard be essentialto safeguarding
the independenceof the Judiciaryand hence theprinciple of theseparation of
powers". The Committee considered finally that "in any case there is a
distinctionto be drawn between a memberraising and debating in the House a
matter which is sub iudice, and the Speaker of the Assembly inquiring, on
behalf of the House, intothe situation of oneof its members or former
members who ison trial". Consequently,the Committee failedto understand
how the parliament concernedwould be violating the principle ofseparation of
powers when raising questions relating to the trial of one of its former
members.
35. The Secretary-General expressed his interesi tn receiving any
observations fromthe Special Rapporteuron the above-mentioned point, which
he considered to be of fundamentalimportance for parliament'srole as
guardian of human rights.
36. On 9 January 1995 the Special Rapporteur sent a communicationto the
Secretary-General ofthe Inter-Parliamentary Union proposing that he
participate in a conferenceof the Inter-Parliamentary Union in order to
address the issue of independentand impartialjustice. Specifically,the
Special Rapporteur welcomedthe opportunity of engaging members of the IPU in page 16
discussion on various aspects of theissue. The Secretary-Generalwas
receptive to this proposal, and it is possible that the SpecialRapporteurmay
attend one of the meetings of the IPU during the coming year.
37. The Special Rapporteur indicated that the IPUno doubt appreciatedthat
the independent and impartial administratio onf justice is necessaryto
achieve respectfor human rights and is vital to the rule of law in a
democratic society,which, in turn, is the foundation for peaceand security
and avoidance of conflict between communities within aState. Its members
also appreciate the importanceof institutional checksto the potential and
real excesses of the executivepower. An important meansof checking
executive excessesand interferencesis through the judiciary. Similarly,the
judiciary plays animportantrole in checking legislative excessesby means of
judicial review - which is often misunderstood.
3. Office for Democratic Institutions and Human Riqhts of the
Orqanizationfor Security and Cooperationin Europe
38. On 25 January 1995the Special Rapporteur received a communicationfrom
the Office for Democratic Institutions and Human Rights of the Organization
for Security and Cooperationin Europe (OSCE/ODIHR)in reply to his initial
communication. The OSCE/ODIHRenclosed information concerning theprogramme
of activities of the organizationfor 1995, which included severalseminars on
the rule of law, on the changingworld of the judge,on the Constitution of ,
Tajikistan etc. In a prior communication dated1 December 1994, OSCE/ODIHR
had informed the Special Rapporteurthat it does not monitor allegationsof
breaches but rather reacts to instructionsof investigationgiven by agreement
of the 53 States participatingin the OSCE.
4. Inter-American JuridicalCommittee
39. On 28 November 1994 the Special Rapporteurreceived a communicationfrom
the Vice-Chairmanof the Inter-American JuridicalCommittee (IASC)of the
Organization of American States (OAS)and the Committee's Rapporteur on the
subject of protection and guarantees forjudges and lawyers in theexercise of
their functions. He attached for the informationof the Special Rapporteur
I I his report to the IAJC on the subject, originally presented in August 1994 and
revised in the light of comments by members of the Committee, aswell as the
text of the most recent resolutionof the IACJ, approved unanimously at the
August 1994 session of the Committee. The report and resolution are included
in the Committee's annual report, which were to be considered by the OAS
I Committee on Politicaland Juridical Affairsand ultimately by the OAS
~
General Assembly.
i
40. In his report, the IACSRapporteurbegan by giving some philosophical
foundations. Theseremarks set out the necessity fora legal system to
provide for the judicial function, i.e. to provide for a juridical check on
the exercise of legislativeor executive authority whenindividual human
rights are infringed. There are some factors necessary inorder for the
judiciary and legal professionto perform these functionson a practical
level. The independenceof the judiciary is commonly referred to as
comprising twobasic elements: the collectiveindependence of the judiciary
and the independenceof individual judges. page I?
41. He considered that central to the concept of institutional independence
of the judiciary is the idea that the judiciarynot be under the authority of
the executive or legislative branchesof governmentand that it continue tobe
impartial andindependent. He also regardedas fundamental for the
administration of justice that judges be given administrative independence
from the other branches of government. Budgeting and expenditures,
appointment andsupervisionof staff and assignmentof caseloadsmust be
within judicial control. This was necessary to prevent the distribution of
resources being used to sanction or reward, and to guarantee timely access to.
the courts. He consideredalso that the administrationof justice required
that the jurisdiction of the courts be respected. This included guarantees
that judicial authoritywould not be abrogated.
He regaided as an important component ofindividual independencethat a
42.
judge should not be considered as a civil servant,but rather as an autonomous
,.,- officer of the State. The independenceof the individual judge comprisedtwo
essential elements: substantiveindependenceand personal independence.
i 1 Substantive independencemeans that in the making of judicial decisions and
exercising other official duties, individualjudges are subject to no other
authority but the law. Personal independencemeans that the judicial terms of
office and tenure aresecure. Personal independenceis secured by judicial
appointment subjectto correctbehaviour and terminated onlyat retirement
age, and by safeguardingjudicial remuneration. Accordingly,executive
control over terms of service of the judges, such as remuneration,pensions or
' travel allowance, was inconsistent with theconcept of judicial independence.
Still less acceptable isany executive control over case assignment,court
scheduling,or moving judges fromone court to another or from one locality to
another.
43. Judges thus requiredsecurity of tenure and guarantees of adequate salary
and pensions in orderto effectively maintain independence.Similarly, judges
require protection against incursion into their personal autonomy, including
protection fromcriticism, civil and criminal immunity, andprotection from
removal from off ice.
44. In states of emergencies,ordinary courts shouldnot abdicate their
responsibilityof testing the legalityof a declarationof emergency.
45. He referred also to the independenceof the legal professionas essential
to the administration of justice. In this regard lawyers should be free to
accept any client, and in accordance with theresponsibilityof the profession
should remain free to provide impartial and independent advice,even on
matters that are controversial or political in nature.
46. Unfortunately, several countries in the region had recently witnessed a
great number of problems and threats to this independence. The most obvious
form of executive interferencewith the judiciarywas formal abrogation of
judicial authority, oftenby de facto military regimes. Problems had occurred
in Cuba, Uruguay, Ecuador, Argentina,Brazil, El Salvador and Peru.
47. Another problem was maintaining judicial salaries at appropriate levels.
The discipline and removal of judges were also great problems. In Chile,
Nicaragua and Panama judgeshad been suspendedon political grounds. Thepage 18
personal securityof judges and lawyers had weakened alarmingly in recent
years, most seriously in Peru and Colombia,but almost everyState in the
Americas was facingan increase inthreats and harassment ofthe judiciary.
48. Member States had responded to these threats through constitutional,
legal and political measures. Recent constitutionad levelopment in, for
example, Brazil showed a trendto entrench the separationof powers more
firmly. Also, a trendtowards ensuring constitutionap lrotection of the
judiciary's ability to exercise administrative and constitutional reviewwas
noticeable. Anotherdevelopmentwas the annual meetingof the Consejo
Judicial Centroamericano (Supreme Court Justices ofGuatemala, El Salvador,
Honduras and Nicaragua) to review commonfunctional andinstitutional
problems. The most dramaticresponse to threats to judges had been in
Colombia. In 1984 the President placedthe country under a state of siege on
the ground that the constitutional systemwas being disrupted. The measures
adopted also providedthe judges with anonymity, butthe threats andviolence
have continued. .
49. The Rapporteur's conclusionwas that despite all internationalattempts
to create an independent judiciary, thejudiciary continuedto be threatened
throughout Latin America.
50. On 24 February 1995,the Special Rapporteur senta communication to
the Inter-American Juridical Committee in reply to its letter
dated 28 November 1994. The Special Rapporteurthanked it for its report and
acknowledged the fact that the independenceof the judiciary was seriously
threatened in some countriesof the Inter-Americansystem, notwithstanding
international attemptsto enhance judicialindependence inthe region. The
Special Rapporteur furnisheda copy of his first report and explained his
intentions for fulfilling thetasks his mandate encompassed. In this regard,
the Special Rapporteur indicatedhis intention to promote and protect the
independence andimpartialityof the judiciary throughoutthe world to the
maximum extent of his abilities. Withinthe limited resources of the Special
Rapporteur,he promised to develop relationswith other organizations,
institutionsand persons with special interest in and knowledge of the
judiciary throughoutthe world to assist him in this task.
51. The Special Rapporteurrequested adviceas to how he could contributeto
the strengtheningof the judiciaryin the Americas, including an assessment of
the priority needs withinthe Americas. He also requested an opinion
concerning seminars and conferences within the Americas in which he might
participate or to which he could contributewith a view to creating better
awareness of the requirementsof judicial independence,and the rule of law
and human rights in general.
52. On 3 April 1995, the Special Rapporteurreceived a reply from the
Principal Counselof the Trade Law Divisionof the Inter-AmericanJuridical
Committee. He noted that the SpecialRapporteur's letter raised important
questions regarding hisrole in strengtheningthe judiciary in the Americas
and regarding the waysin which the OAS and United Nationsmight enhance their
cooperation in that regard. He pointed out that these activitieswere under page 19
the supervisionof the Working Group on Enhancementof the Administrationof
Justice in the Americas of the Committee onJuridical and Political Affairs of
the PermanentCouncil.
53. The Special Rapporteur welcomes thid sialogue on the Americas with this
important organization.
5. World Bank
54. On 12 December 1994,the Special Rapporteursent a communicationto the
Director of Public Sector Managementof the World Bank in reply to the
latter's communicationdated 15 November1994 in which the Directorsent
materials concerninga World Bank conferenceon judicial review in developing
countries. The Special Rapporteur expressed his agree~nent that securing the
independenceand &npartialityof the judiciary was centralto achieving the
rule of law. The Special Rapporteur wasalso pleased that this task had
become an important dimensionof the Bank's strategies forpoverty alleviation
and was viewed as a necessary condition for sustainabledevelopment. The
Special Rapporteur considered that frot mhe perspective of the international
community, deficienciesin the administrationof justice underminedrespect
for human rights in general and were an obstacle to bothsocial and economic
development. ,TheSpecial Rapporteur considered that successful lega reforms
in countries in transition required not only the full conviction and political
commitment of the Governmentsconcerned, but also depended upon simple
awareness of applicable internationalstandards. The Special Rapporteurnoted
that the creation of his mandate by the Commission couldbe viewed as having
raised the level of the internationalcommunity.'~ concern for the independence
and impartialityof the judiciary.
55. The Special Rapporteur expressed the view that he must deal with issues
relating to securing theadministration of justice in a meaningful and
concrete way under an independent andimpartial judiciary. In this
connection,he drew the attention of the Director towhat might be called the
"capital costs"for the constructionof courts, offices,prisons and other
elements of the judicial infrastructure necessary td oispense independentand
impartial justice. The Special Rapporteur requestedinformation about the
extent to which the World Bank had considered such costs, and encouraged such
expenditures,within developingcountries.
E. Cooperation withother United Nations procedures and bodies
56. It is to.be recalled that the Special Rapporteur haa s three-pronged
mandate which, interalia, calls upon him to identify and record not only
attacks on the independenceof the judiciary,lawyers and court officials,but
also progress achieved inprotecting and enhancingtheir independence, and to
make concrete recommendationsincluding the provision of advisory services or
technical assistancewhen so requested by the State concerned. To this end,
the Special Rapporteur heldmeetings with the Chief of the Advisory,Services,
Technical Assistance andInformationBranch of the Centre for HumanRights in
an attempt to better coordinate the SpecialRapporteur's efforts in this area
with the programmes of the ranch.The Special Rapporteur has offered his
expertise and expressed his wish tobe consulted inthe planning andpage 20
implementationof programmes for the training of judges and lawyersorganized
by the Branch and to be informed of the results of training programmes and
follow-up undertakenby the Branch.
1. Cooperationwith special rapporteursand workinq aroups of
the Commission on Human Riqhts
57. In additionto the Special Rapporteur'sparticipationin the meeting of
special rapporteursand in joint urgent actions transmitted to Governments,
referred to above, the Special Rapporteur requestet do undertake a.joint
mission with the Special Rapporteur on the question of torture,
Mr. Nigel Rodley, to Pakistan; a joint missionwith the Special Rapporteur on
extrajudicial,summary or arbitrary executions,Mr. Bacre Ndiaye,to Nigeria,
and a joint mission with the Working Groupon Arbitrary Detention to Peru.
The Special Rapporteur mustexpress his disappointment thatnone of the
Governments concernedhas respondedfavourablyto these requests. In an oral
communicationto the Special Rapporteur, a representative of the Permanent
Mission of Pakistan to the United Nations Officeat Geneva, in rejecting the
request for ajoint mission, expressed the viewthat it would be logistically
difficult to organize such a mission owing to the fact that the mandates of
the respective Special Rapporteurs touched upondistinct and separate issues
and therefore wouldrequire individual meetingswith different government
agencies and other organizations. The Governmentof Nigeria and Peru had
provided no response to the requests by the time the present report was
finalized.
58. As noted above,the Special Rapporteuralso participated ina meeting of
the Working Group on Arbitrary Detention. The Special Rapporteurconsiders it
importantto maintain a dialogue withthe Working Group, as their respective
mandates frequently touchupon the same issues. For example, both the Special
Rapporteur andthe Working Group haveexpressedconcern about the use of
"faceless tribunals"in Peru. Therefore,the Special Rapporteurwill maintain
and enhance his cooperationwith the Working Group on ArbitraryDetention.
2. Cooperationwith the Crime Preventionand Criminal Justice Branch
59. As the body that assiststhe Commissionon Crime Prevention and Criminal
Justice to oversee the implementationof the Basic Principles on the
Independence ofthe Judiciary and theBasic Principleson the Role of Lawyers,
the Special Rapporteur believesit is imperative forhim to work in close
cooperation withthe Crime Preventionand Criminal Justice Branch. To this
end, the Special Rapporteurhopes to participatein the forthcomingsession of
the Commission on Crime Prevention and Criminal Justice to be held in Vienna
in May 1996.
3. Cooperation with the AdvisorvServices, TechnicalAssistance and
Information Branchof the Centre for HumanRiahts
60. The Special Rapporteur welcomesthe fact that the Advisory Services,
Technical Assistanceand InformationBranch of the Centre for Human Rights
offered two training courses for lawyers andjudges in 1995. These courses focused on the followingtopics: international sources, systems and standards
for human rights in the administrationof justice; human rightsduring
criminal investigations, arrests and pre-trial detention; the independence of
judges and lawyers; theelements of a fair trial;juvenile justice; protection
of the rights of womenin the administrationof justice; human rightsunder
states of emergency;standards for thetreatment of prisoners;non-custodial
measures; andnon-discriminationand equal justice. The first training course
was for judges, on human rights in theadministrationof justice. It was held
in Ulaanbaatar in February1995, part of a continuing multi-component project
in Mongolia. Thesecond event was a workshop on international standardf sor
judges, lawyers andprosecutors which took place inSao Tome and Principe in
November 1995.
61. The Special Rapporteur also welcomes effortsby :he Branch to develop a
manual for a human rights trainingprogramme for judges and lawyers. Asa
part of this effort, the Branch is puttingtogethermaterials that will be
published as a volume in the Centre's ProfessionalTraining Series. The
manual will be used as the basis fortraining programmesthat will be offered
to judges and lawyersat the request of countriesthrough the programme of
advisory services andtechnical assistancecarried outby the Centre in the
area of human rights in the administrationof justice. The manual and related
materials will be developed in consultationwith the Special Rapporteur and
the United Nations Crime Prevention andCriminal Justice Branch.
Non-governmentalorganizationswhich have done valuablework in this field
will be contactedand invited to provide suggestions. The contents will be
developed throughthe training courses for judges and lawyers which are held
as part of the ongoing technical cooperation projectsof the Centre. In
addition, accordingto the informationreceived, a meeting of experts to
.review an outline ofthe manual will be held.
4. Cooperationwith the United NationsInterresionalCrime and
Justice Research Institute
62. On 8 November 1994,the Special Rapporteurreceived a communication from
the United Nations Interregional Crime andJustice Reseasch Institute
(UNICRI). This communicationindicated that the mandate of the Special
Rapporteur is an areain which UNICRI took particular interest. It noted that
in September 1989 UNICRIand the Centre for Human Rights jointly organized a
training course forColombian judges on human rights and judicial
investigationin Castelgandolfo, Italy,and in December 1991 UNICRI worked
with the Centre, the Crime Prevention andCriminal Justice Branch and the
Foundation forInternationalStudies of the Universityof Malta on a training
course on human rights and crime prevention inValletta.
63. UNICRI is also currentlyworking on a project of assistanceto Albania in
the prevention ofcrime and the administration ofjustice, in collaboration
with the Italian SuperiorCouncil of Judges. An important aspect ofthis
endeavour has beenthe administrationof justice, including the Basic
Principles on theIndependenceof the Judiciary andprocedures for their
effective implementation.page 22
5. Cooperationwith the InternationalLabour Office
64. On 15 November 1994,the Special Rapporteurreceived a letter from the
Legal Adviser of the InternationalLabour Office in reply to his initial
communication.
65. The Legal Adviser indicated that severalinternational labourstandards
were pertinent to the need for an independentand impartial judiciary in the
member Statesof the ILO. He referred in particular to ILO instruments
guaranteeing freedom ofassociation. The 1994 General Survey of the Reports
on the Freedomof Association and Protectionof the Right toOrganise
Convention 1948 (No. 87), and the Right to Organise and CollectiveBargaining
Convention 1949 (No. 98), prepared by the ILO Committee of Experts onthe
Application of Conventions andRecommendations,illustrates this link. He
enclosed copiesof paragraphs 32,77 and 106 of the report. In addition, he
indicated that the Terminationof EmploymentConvention, 1982 (No. 158)
provides in its article 8, paragraph 1: "A worker who considers that his
employment has been unjustifiably terminatedshall be entitled to appeal
against thatterminationto an impartial body, suchas a court, labour
tribunal, arbitrationcommittee or arbitrator." He further indicated that in
some countriesthe labour inspection system included persons who may exercise
judicial powers. Where this isthe case, the Labour Inspection
Convention, 1947 (No. 81) is relevant.
IV. THEORETICAL ISSUES OFSPECIAL IMPORTANCE
A. The use of "faceless" iudqesin Colombia and Peru
66. In his initial report to the Commissionon Human Rights,the Special
Rapporteur raised someissues of special importance pursuantto his mandate
"to study, for the purpose of making proposals, importantand topical
questions of principle with a view to protectingand enhancing the
independenceof the judiciary and lawyers". To this end, the report included
a discussion of issues such as separationof powers, the function of judicial
review, the media andthe judiciary and terrorism and the judiciary. An issue
raised in theinitial report of theSpecial Rapporteur wasthe use of secret
witnesses, "faceless"judges and in camera hearingas a measure to combat
terrorism. (E/CN.4/1995/39,para. 60). During the past year, the Special
Rapporteur continued to receive informationon these practices,particularly
in Peru and Colombia where there has been extensiveuse of "faceless"judges
and secret witnesses as a means of protecting the judiciary from acts of
terrorism. As noted above, this issue is also of particular concernto the
Working Group on ArbitraryDetention.
67. Colombia and Peru have in recent timesexperienced extremeviolence
resulting frominternal disturbances causedby, among other reasons,the
confrontationbetween Government armedforces and irregular armedforces,
including terrorist groups and drug traffickers. Targets of this violence
have included members of the judiciary. As a response to this situation, both
Governments have takenmeasures to protect thelives and physical integrityof
judges and witnesses. Following is a brief description of the measures
adopted by theGovernments of Colombia and Peru. page 23
1. Colombia
68. On 23 November 1995 the Government of Colombia sent the Special
Rapporteur various documents, including materialsdealing with what is called
"regional justice"or "secret justice".
69. In 1980 the Colombian Governmentcreated a system of public order courts,
now calledcourts of regional jurisdiction. Thprocedures applied by these
courts and prosecutors of the regional jurisdictionwere established to
investigateand prosecute crimesof a certain gravity. The procedures provide
judicial officials with certain special powers that othj erdicial officials
lack. One of the principal and special features of the procedures applied by
these courts and prosecutors is the use of secret witnesses. For security
reasons, testimony presented bya secret witnessis adnissible before a
regional court. Only the judicialofficial and the agent of the Public
Ministry know the identity of the witness andthey are obliged to keep it
anonymousuntil the personal securityof the witness is guaranteed. One
limitation to the receptionof this evidence is that it requires corroboration
(art.247, CriminalProcedure Code). Another special power given to regional
officials is that the hearings arenot open to the public. However, the
parties are given arelatively longtime to prepare their allegations in
written form, instead oforally. Also, regionalprosecutors can request
preventive detention ofa suspect during the investigation.
70. The Government argues that the reason for these specialprocedures is the
prevalence of terrorist activities. Terrorists groups and drug traffickers
have created a situation in which it became necessaryto protect the lives and
personal.integrity of the members of the community, in particular judges,
magistratesand other people who take part in court proceedings suchas
witnesses, expert witnesses, informanta snd victims who testify before the
courts. It is alleged that thephenomenon of violence overwhelmed the
capacity of the formal judicial system.
71. The Special Rapporteur takesnote of the joint report of the Special
Rapporteurson the questionof torture and onextrajudicial, summary or
arbitraryexecutions, on theirvisit to Colombia from 17to 26 October 1994.
The Special Rapporteursstate:
"Ordinary criminal justice also includes the regionalcourts, which were
formerly'calledthe public order courts andhave jurisdiction in
proceedings foroffences such as terrorism, rebellionand drug
trafficking. Non-governmentalsources levelled harsh criticism against
these courts and their operational procedures, which they considered to
undermine due process. In the first place, these categoriesof offences
have been broadly interpreted,resulting in the use of these courts to
prosecute not onlymajor criminals,but also activistsfrom peasant,
community, labour and similar organizationswhose protests,political
demonstrationsand labour disputes are often characterized as terroristic
or supportive of the guerrillas. As far as procedural aspects are
concerned, the anonymityof the judges, prosecutors,criminal
investigationpolice officers and even witnessesfor the prosecution are
still serious obstaclesto the exercise of the rights of the defence,
despite the reforms introduced in 1993. In this connection, theFiscal page 24
I
General de la Naci6n expressed to the Special Rapporteurs hisview that
there should be supervisionof these courts in order to avoid abuses"
(E/CN.4/1995/111,para. 85).
The Special Rapporteurs recommended, interalia, the following:
"('c)As long as the Regional JusticeSystem exists, the crimes
falling underthis jurisdiction should be clearldefined so as to avoid
acts which constitute a legitimate exerciseof political dissent and
social protest being consideredas 'terrorism'or 'rebellion1.
Furthermore, defendantsbefore regional courtsmust enjoy full respect
for their right to afair trial. The severerestrictionscurrently in
place, including thoseaffecting the right to habeas corpus a procedure
essential for protectingpeople deprived of their libertyfrom torture,
disappearance orsmary execution, should be eliminated.
"(d) Effective protection should be providefdor all members of
the judiciary and thePublic Ministry from threats andattempts on their
lives and physical integrity,and investigationsinto such threats and
attempts should be carriedout with a view to determining their origin
and opening criminaland/or disciplinaryproceedings, as appropriate.
"(e) Likewise, provision shouldbe made for effective protection
of persons providing testimonyin proceedings involving human rights
violations, as appropriate" (para. 177).
I
73. The Special Rapporteuralso notes that the Inter-American Commissionon
Human Rights stated in itssecond report on the human rights situation in
Colombia (October 1993)that "faceless"judges and secret evidenceare in
clear contradictionto the American Convention onHuman Rights.
2. Peru
I
74. During the months of November and December 1995the Special Rapporteur
sent two communicationsto the Government ofPeru concerningcases of
defendants who had been formally indicted or tried by tribunals composed of
"faceless" judges. The two cases were of deep concern to the Special
Rapporteur because theGovernment had informed him on 21 August 1995 that the
anti-terrorist legislationwhich regulatedthe f&nctioningof the "faceless"
judges was to be abolished on 15 October 1995.
75. In addition,in a communication dated1 May 1995, the Government
submitted information concerningchanges made to the internal legislationon
terrorism. The Government indicatedthat it had issued Law No. 26447 as part
of the national pacificationprocess. Article 1 of Law No. 26447 provides
that the prosecution of crimesof terrorism will be carried out "by the
magistrates that correspond according to the procedural and organic norms in
effect". This law, which wouldbe put into effect after 15 October 1995,
revokes article 15 of Decree Law No. 25475 by which the magistrates who take
part in the proceedings of cases of terrorism keep their identitysecret. The
Government indicated that theuse of "faceless" judges wasnecessary forthe page 25
nresent to protect the physical integrityand the lives of magistrates, who
were constantly threatened and attacked by terrorists. The Government
concluded that this demonstratedits political commitment tocontinue adapting
its temporary and circumstantial terroristlegislation in accordance with the
advances made in the fight against terrorismand the process of national
pacification.
76. The Special Rapporteurhas learned, however, that terrorism cases
will continue to be tried by "faceless"judges until 11 October 1996
(Law No. 26537). Among the reasons given by the Governmentis that the
terrorist organizations havenot yet been dismantled.
3. Conclusion
77. United Nations special rapporteurs, the Inter-American Commission on
Human Rights and human rights NGOs have condemned the use of "faceless" judges
for the following reasons: it violates theprinciple of the independenceof
the judiciary; the practice restricts the defendantrs right of due process;
and it violates the right toa fair trial in a systematic way.
4. Preliminary observationsof the Special Rapporteur
78. In a preliminary evaluation ofthe Governments' reasoning for the use of
"faceless" judges,the Special Rapporteuris of the view that such special
procedures violate the independenceand impartiality of the justice systemfor
a variety of reasons. The Special Rapporteur is, however, mindful of the need
to protect the security of individual judgesin terrorist-related cases.
However, this issue requires further study and analysis. During the cours of
the coming year, the Special Rapporteurhopes to carry out a mission to Peru
and Colombia to investigate these practices in situ, and to do a more
exhaustive surveyworldwide ofsimilar practices before stating his final
conclusions and recommendations.
B. Establishmentof an International Criminal Court
79. The Special Rapporteur welcomes the proposed establishmen of the
International Criminal Courtand the progress made towards its
establishment.
80. The Special Rapporteur observesthat while article 10 of the draft
Statute provides for the independence ofthe judges of the Court,it is
imperative that the provisions of thearticle are strictly implemented once
the Court is established becausethe judges, at least in the initial stages,
will not be full-time judges with any fixed remuneration,but will be paid
allowances on a daily basis for work actually performed. The onuswould be
upon the Presidencyof the Court to see that the judges do not engage in any
employment inimical totheir independenceincluding those specifically
prohibited under article10 (2). At the earliest time the judges should be
made full-time members of the Court. C. Johannesburq Principleson National Security, Freedom of
Expression and Access to Information
81. In paragraphs 58 and 59 of the Special Rapporteur's first report he
raised the problemsarising from restrictions imposed on judicial independence
by Governments on the grounds of "reasonsof State" and during states of
emergency. The Special Rapporteur alluded to the need for possible additional
standards to safeguard judicial independence even during such crises. In this
regard, the Special Rapporteur welcomes the JohannesburgPrinciples on
National Security, Freedom of Expression andAccess to Informationadopted
on 1 October 1995 by a group of experts in internationallaw, national
security and human rights. The initiative for this meeting of experts was
taken by the NGO article 19: the International Centre Against Censorshipi ,n
collaborationwith.the Centre for Applied Legal Studiesof the University of
Witwatersrand in SouthAfrica.
82. The Principles are based on international and regional law and standards
relating to the protection of human rights, evolving State practice (as
reflected, inter alia, in judgements of national courts), andthe general
principles of law recognized bythe community of nations. The Principlesalso
acknowledge theenduring applicability ofthe Siracusa Principleson the
Limitation andDerogation Provisionsin the International Covenant onCivil
and Political Rights andthe Declarationof Minimum Humanitarian Standards
applicable ina state of emergency (theTurku Declaration). The Principles
spelled out in this document addto the meagre materials currently available
on these subjects. The Special Rapporteur will from time to time refer to
these standardsto the extent that they areapplicable tohis mandate.
D. The media and the judiciary
83. In paragraph 61 of the SpecialRapporteur's first report he referred to
the increasing concerns about the relationship between th meedia and the
judiciary.
84. The role of the media in the O.J. Simpson trial in the United States has
raised the important question of how extensivemedia coveragecould affecta
fair and impartial trial. No doubt thisissue has been addressedin several
forums, including by judges. The issuecame to the surface againin another
criminal case in the United Kingdom in October 1995. In the case of
R. v. Geoffrey Knights, the presiding judge, Judge Sanders, after detailing
the manner in which the media had covered the pre-trial events, made the
following scathing remarks aboutthe media:
"I have absolutelyno doubt that the mass-media publicityin
this case was unfair, outrageousand oppressive. I agree with
Mr. Plumstead that it can be describedas malicious. I also
believe thatthere are grounds for instituting proceedings for
contempt of court againstthe editors concerned and that there is
an urgent need to investigate the possibilitythat certain
journalistshave colluded withand suborned prosecutionwitnesses.
"I considered whether I could allow the trial to proceed on
its due date by careful vettingof the jury and by giving special page 27
directions to them. The glaring problem is that there can hardly
be a potential juror on the panel who has not heard somethingabout
this case. The newspapers andarticles are widely circulated.
They are not of limited or specialist interestonly to a few. They
are national so I cannot move the venue. Any direction I give to
the jury would only draw to their attentionthat which I wish to
conceal. I had thought of delaying the trial for a reasonable
period but I have no confidence that the media will leave it alone
and in any event todelay the trial is oppressive to the
complainant and defendantalike. Counselwould have an impossible
task. He would undoubtedly wantto question witnesses on what they
allegedly told reporters whereit is inconsistent with their
statementsand sworn testimony. It is arguably relevantto ask
those witnesses who gave interviewswhether they received payment
for doing so. Their credibilityhas been put at issue by the
interferenceof the press in the judicialprocess. Counsel could
be accused of failing in his duty if he didn't refer to the press
reports during cross-examination.
"I have not disregardedthe serious nature of the case and
the concerns of the alleged victim if his complaintis true but the
newspapers have deniedhim the opportunity toput his case just as
they have denied thedefendant a fair trial. For those reasons I
have stayed the proceedings. There has beena grave abuse of
process hdre.
"I direct that thepapers in the casebe referred to the
Attorney ~eneral to consider contemptof court proceedings against
the editors concernedand I am also asking the Director for Public
Prosecutionsif she would investigatethe possibility that
individual journalistshave made illegal approaches to
witnesses."
85. It was reported that it was unprecedentedin English legal history fora
judge to discharge the jury even before the trial proper hadcommenced. The
facts in this case once again reinforcedthe Special Rapporteur's concerns
over the role of the media in the coverage oftrials, and in particular
pre-tria1,procedures. As previously stated, a fine balance needs to be struck
between the right of the consumers of justice to a fair and impartial trial
and the equallyimportant right to freedom of expression andthe corresponding
right to information. The Special Rapporteur intendt so work closelywith the
Special Rapporteuron freedom of expression andto seek the cooperationof
organizations like.theInternationalCommission of Juristsand article 19to
formulate somestandards to achieve this balance.
E. Beijinq Statementof Principlesof the Independence
of the Judiciary in the LAWASIA Recrion
86. LAWASIA is the acronym forLaw Association of Asia and the Pacific. .
Founded in 1966, it is the oldest regional association of jurists in the
Asian-Pacific region. Its primary objectivi es "to promote the administration
of justice, the protectionof human rights and the maintenance ofrule of law page 28
in the region". The Association has a Judicial Sectionwhich, during the
biennial conferences of theAssociation over the last 12years, has held a
parallel conference ofAsian Chief Justices.
87. The Sixth Conferenceof Asian Chief Justiceswas held in Beijing in
August 1995 in association with the fourteenth biennialconferenceof the
association. Eighteen Chief Justices were presenteither personally or
through their representatives.What emerged was an important documentknown
as the Beijing Statement of Principlesof the Independenceof the Judiciaryin
the LAWASIA Region, which was adopted unanimously.
88. The BeijingStatement had its origin in a statement of principles known
as the "Tokyo Principles" formulated by the LAWASIA Human Rights Standing
Committee anda number of Chief Justicesand other judges following a meeting
held in Tokyo in 1982. It also drawsheavily upon other international
statementsof principles including theBasic Principleson the Independenceof
the Judiciary,and the "Singhvi Declaration".
89. The Beijing Statement,declared to represent"minimum standards necessary
to be observed in order to maintain the independence andeffective functioning
of the judiciary",is most welcome emanating asit does from Asian-Pacific
countries including Australia andNew Zealand. The Chief Justicesof
Australia, Bangladesh,China, Hong Kong, India, Indonesia,Mongolia, Myanmar,
Nepal, New Zealand, New Caledonia, Pakistan, Papua New Guinea, the
Philippines,the Republic of Korea, Singapore, Vanuatu,Viet Nam and western
Samoa signedthe Statement, the Chief Justiceof Malaysia, although not
present in Beijing, had also agreed to sign.
90. The Special Rapporteur commendsthe Chairman sf the Judicial Sectionof
LAWASIA, the Chief Justice of Western Australia, Mr. David Malcom, for his
untiring efforts in thepreparation ofthe draft of the Statement.
91. The Special Rapporteur observes that the Statement will be an invaluable
supplementto the existing standards. He will, from timeto time, referto
the Statement in dealing with Governments and others in the Asian-Pacific
region. The Special Rapporteur would welcome information from Bar
Associations in the region on the extent to which Governments in theregion
have implemented the principles setout in the document.
F. Mechanisms forappointment of iudqes
92. The Special Rapporteur has undertaken a study on appropriate independent
appointmentmechanisms to ensure thatmen or women of the right calibreare
appointed to the office of judge. In addition to the traditional safeguards
necessary to secure judicial independence,in the final analysis it is the
character, qualificationsand independenceof the individualappointee.that
make the difference. Hence the importanceof the selectionprocess.
93. At the request of the Special Rapporteur andwith the cooperationof the
Chief Justice of thePhilippines,a study was undertaken by lecturers and a
'studentof the School of Law of the Ateneo de Manila Universityon the
procedure used for selection of judges in that country. Under the 1987
Constitution of the Philippines themembers of the Supreme Court and judgesof page 29
High Courts are appointed by the President froa m list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy. Such
appointmentsneed no confirmation. The Judicial and Bar Council isa
constitutionalcreature composed of representatives fromthe judiciary,the
Bar, academicsand Government and lay persons. The Chief Justice is the
Chairman and the Minister for Justict ehe Deputy Chairman.
94. The Constitutionis also concerned withthe quality of judges. It stares
that "a member of the judiciary must be a person of proven competence,
integrity, probityand independence".
95. The Special Rapporteur has receivedthe research materialand is
currently studying it. The Special Rapporteur would welcome the input of
other organizationsthat have carried out similar studies or that are prepared
to assist in similar research on how independentappointmentmechanisms
function in practice. The object of the exercise isto find suitable
mechanisms for standard-setting.
G., Conflictsbetween the leqal profession and the iudiciary
96. The judiciary and the legal profession areintegral institutionsin any
system of justice in civilized nations. Harmony,respect for each other's
roles and close cooperationwill guaranteean independent systemof justice
based on the highest principles. Conflict ortension between the two will
adversely affectthe administrationof justice. In an adversarial system some
conflicts are inevitable. It is left to the maturity of the individualsto
put aside personalitiesand strive for the greater goodof the system in
general. But when the conflict isinstitution-basedit leads to
confrontationswhich will eventually marthe proper administrationof
independent justice.
97. The incidence of such conflictsappears to be on the increase andthe
Special Rapporteuris concerned. Thesituation needsto be monitored and data
collected. A conflict-resolutionmechanism may need to be devised withinthe
Centre for Human Rightsto be made available to such institutionsto restore
harmony when requested.
H. Commercializationof the leqal profession
98. The organizationof legal practices of lawyers needs to keep pace with
modern changes, advances and liberalization policies. At the same time,
professionals in the practice of the law must be mindful of the need to retain
the element of independence needed to discharge their professionad luties.
Independence isneeded not onlywhen the lawyer is on his feet in court';it is
needed even when he is in his law office advising clients or drafting a
document. People seek him out for his independentadvice and skills. It is
this independence in the profession whichdistinguishesit from any other
vocation or profession.
99. The Special Rapporteur expressesconcern over the increasing trend
towards commercialization of thepractice of the law. Law firms in some
developed and other countries are run more like large corporateinstitutions.Rules on professionaladvertising have becomeso,relaxed in these countries
that the media, both print andelectronic, areused for the purpose. The
Special Rapporteur is consideringundertaking a research programmeto evaluate
how this trend, if left unchecked, would erode not only the independenceof
lawyers but their professionalstatus as well. The study would include the
impact of an over-commercialized legalprofession onjudicial independence.
I. The Cairo Declaration
100. The Third Conference of Francophone Ministers of Justice took place in
Cairo from 30 October to 1 November 1995. The meeting was organized by the
Agence de cooperation culturelle et technique (ACCT). The meeting concluded
with the Cairo Declaration,in which the participants,inter alia:
(a) Reaffirmed the Francophone community's support of the Basic
Principleson the Independenceof the Judiciary;
'Expressed preoccupation with obstaclet so access to justicepresent
(b)
in numerous countries, including the long distance to courts, high price of
trial, ignorance of the law, lack of judicial assistance, andmalfunctioning
of certain jurisdictions;
(c) Agreed on the need to eliminate all impedimentsto the independence
of judges, who arethe primary guarantors of accessible and efficient justice,'
by providing them the legal and material means necessary;
(d) Agreed on the need to give greater emphasison judicial training,
particularly initial, continuing and specializedtraining, of judgesand
judicial personnel;
(e) Agreed to watchover the adoption and observance of ethical rules,
in order to preserve the dignity of the judiciary;
(f) Agreed to participate actively inthe work being done towardsthe
convention establishingthe InternationalCriminal Court.
101. These are positive developments which the Special Rapporteur welcomes.
V. SITUATIONS
A. General
102. This section contains brief summariesof the urgent appeals and
communications transmittedby letter to Governments,and the cases of
allegations and urgent appeals to which replies were received from
Governments. Observationsby the Special Rapporteur have also been included
where applicable. This sectionalso contains a summary of substantive
informationthe Special Rapporteurhas received from Governments in response
to his communicationsof October 1994.
103. In preparing this report the Special Rapporteur took note of those drawn
up by his colleagues,Mr. Paulo Sergio Pinheiro, Special Rapporteur on the
human rights situation inBurundi (E/CN.4/1996/16,paras. 26, 146-147); page 31
Mr. M. Kirby, Special Representativeof the Secretary-General on thesituation
of human rights in Cambodia (A/50/681,paras. 35-38); Mr.J.-C. Groth, Special
Rapporteur on the situation of human rights in Cuba (A/50/663,annex,
paras. 23-24); Mr. Alejandro Artucio, Special Rapporteur onthe human rights
situation in the Republic of Equatorial Guinea (E/CN.4/1995/68,paras 23,
50-51 (a));Mr. TadeuszMazowiecki, SpecialRapporteur on the situationof
human rights in the territoryof the former Yugoslavia (A/49/641-S/1994/1252,
paras. 97-98, 141), Mrs. Monica Pinto, IndependentExpert on the human rights
situation in Guatemala (E/CN.4/1996/15,paras. 50, 55-57, 61, 64,129-130);
Mr. Reynaldo Galindo Pohl, Special Rapporteuron the human rights situation in
the Islamic Republic ofIran (E/CN.4/1994/50,paras 95-96, 111);
Mr. Gaspar Bir6, Special Rapporteuron the situation of human rights in the
Sudan (E/CN.$/1996/62,para. 24); Mr. Bacre Waly Ndiaye, SpecialRapporteur on
extrajudicial, summaryor arbitrary executions (E/CN.4/1996/4,paras. 69-70,
92, 102, 129, 266, 426, 605-606).
Situations in specific countries or territories
Albania
Alleqations transmittedto the Government
104. By letter dated 28 September 1995the Special Rapporteur informedthe
Government that hehad received information concerning allegations of threats
to the independenceof the judiciary.
105. According tothe informationreceived, the High Council of Judges, which
has the power to nominate, remove and discipline lowec rourt judges, had
removed judges arbitrarilyand withoutdue process. This High Councilof
Judges included officialsof the executive,which added to the appearanceof
impropriety.
106. The Government also proposedan amendment to the Constitution that would
have alloweda judge of the Court ofCassation to be removed without cause.
107. The executivehad taken some actions which, considered together,appear
to constitute an attempt to underminethe authority and independence of the
Court of Cassation. For instance,in the winter of 1994, the executive
initiatedactions in parliament tostrip the Chief Judge ofthe Court of
Cassation of his immunity. Later, the executiveintroduced a motion in
parliament toremove two other staff members of the Court of Cassation. The
executive continuedto threaten theCourt's budgetary authority followinga
decision of the Court to review the case of Fatos Nano,a socialist leader and
former member of parliament. The executivepetitionedthe Court to remove the
case from its jurisdictionand to suspend the enforcement of all orders of the
Chief Judge. Finally, on 5 September 1995, the Minister of Justice was '
dismissed and the executive arrested or attempted to arrest the chief
administratorof the Court, as well as other staff members. Furthermore,it
is alleged that the court buildingitself was surroundedby police, who placed
restraints on free access to the Court, and that some individuals whotried'to
enter the building wereassaulted.108. In his meeting withthe Charge dfaffaires of the Permanent Mission of
Albania to the United Nations at Geneva on 21 November 1995, the Special
Rapporteurexpressed his concerns about the situationof judicial
independence. The Albanian representative provided b arief explanation ofthe
current situation and promisedto send to the Special Rapporteur a detailed
reply from the Governmentby the end of December.
Response of the Government
109. On 12 January 1996the Albanian Government submitted an official response
to the Special Rapporteur'sletter of 28 September 1995.
110. The Government explainedthat the removal of the immunity of the Chairman
of the Court of Cassation and the approvalof penal procedures against him
were made in accordancewith article 6 of Law No. 7561 dated 29 April 1992.
111. With regardto the budget ofthe Court of Cassation, theGovernment
assured the Special Rapporteurthat the Albanian courts have an independent
budget that is administered exclusively by the courts.
112. Concerningthe suspensionof the enforcement ofthe orders of the
Chairman of the Court of Cassation,the Governmentexplained that itwas done
in accordancewith article 25 of Law No. 7561 dated 29 April 1992.
113. With regardto the dismissal ofthe chief administrator ofthe Court of
Cassationas well as two other employees,the Government explainedthat it was
done in accordancewith article 29 of Law No. 7491 dated29 April 1991.
114. The Special Rapporteur is studying the Government'sargument in more
detail and expects to issue a responsein the near future.
Arqentina
Alleqationstransmittedto the Government
115. On 27 October 1995, the Special Rapporteur transmitted a communicationto
the PermanentRepresentative of Argentina to the United NationsOffice at
Geneva concerning thedetention of Dr. Le6n Zimmerman. Accordingto the
source, Dr. Zimmermanis the advocate for200 familieswho peacefully occupied
27 hectares of land in Quilmes, nearBuenos Aires. Subsequently, on
7 October 1995, the judge of the criminal and correctional courtNo. 4 of
Quilmes, Dr.Abel Gonzales Elicabe, ordered the incommunicadd oetention of
Dr. Zimmerman for thecrimes of illicit association,usurpation and
disobedience.
116. On 24 October 1995, the Special Rapporteur learned that Mr. Zimme.rmanwas
freed after the Appellate Chamber ruled that the charges of illicit
association were nulland void. The Special Rapporteur wasalso informed that
the lower court judge,Dr. Gonzales Elicabe, was removed from the case. page 33
Information transmittedbv the Government
I
117. The Special Rapporteurreceived a communicationfrom the Government
concerningthe case of Le6n Zimmerman dated 13December 1995. In its reply,
the Governmentindicated that Dr. Zimrnerman had been freed as a result of an
order issued by the Criminaland CorrectionalChamber of Appeals of the
Jurisdictionof Quilmes which decreed the nullityof all the proceedings
that had been carried out. In the same regard, the judge who replaced
Dr. Gonzales Elicabe orderedthe dismissal of the case against Dr. Zimmerman.
Australia
Victoria
118. In May 1994the Attorney General of the State of Victoria published a
discussion paperentitled "Reform of theLegal Profession - An Agenda for
Change". Among the proposalsmade in the paper was a proposal to have a
regulatory bodyappointed by the executive which would in effect have the
ultimate power over licensing of lawyers to practise in the State of
Victoria. TheLaw Instituteof Victoria, a statutory bodyunder the Legal
Profession Practice Act1958, which is the professional andregulatory
organizationfir solicitors,while agreeing to some of the Attorney General's
proposals tookobjection to the proposal to set up a regulatory boardas such
a board would affect the independenceof the legal profession in Victoria.
The controversy escalatedinto a confrontation between theAttorney General
and the legal professionin Victoria through both the print and electronic
media.
119. On being informed ofthe proposals the Special Rapporteursought a
meeting with theAttorney General. TheSpecial Rapporteur tookadvantage of
his attendanceat a meeting inAdelaide on 27 March 1995 to fly to Melbourne
on 28 March where he had a brief meetingwith the Attorney General. The
Attorney General said that the proposals had been misunderstoodand assured
the Special Rapporteur thatit was not the intention ofher Government to
interfere withthe independenceof the legal profession in Victoria. It was
the intention of her Governmentrather to permit lawyers to form theirown
associations. Such associations wouldbe accreditedto issue licenses to
practise to its members; in the event a lawyerdid not wish to belong to any
associationthen the proposed central regulatoryboard would issue the
licence. Her proposal~obviouslyhad the effect oftaking away the monopoly of
the Law Institute andthus fragment thelegal profession currentlyorganized
under one body into pockets of associations.
120..The Special Rapporteurlearned from a subsequentpress statement
attributedto the Attorney Generalthat her proposal for such a regulatory
body had been "endorsedin the Federal Governmentreport on access to justice"
released the previous year.
121. In 1994 the Federal Governmentof Australia didrelease a reportentitled
"Access to Justice - An Action Plan - Overview". In the report the following
observation, inter alia,was noted:page 34
"The regulation of the legal services market andof the legal profession
raises issues that are of centralimportanceto access to justice.
Within the framework of ethical responsibilities designed to assist the
administrationof justice, lawyersprotect the rightsand advance the
interests of the clients they represent. If the legal professionis
regulated in a manner that impedesthe freedom of lawyers to compete with
each other, legalservices will not be provided efficientla ynd consumers
of legal serviceswill pay additional costs. Similarly, ifthe structure
of the profession is such that consumers are required to pay for
duplication of legal work orunnecessary services,the cost of legal
representationwill be increased and accessto justice thereby
diminished. If the exclusive right oflawyers to perform legal services
is framed too broadly, consumersare likelyto be denied the chance to
purchase services fromproviders (suchas conveyancers)who may be
prepared to provide them atlower prices than lawyers.
"With this in mind, we propose that theCommonwealthand the States
should cooperate in restructuringthe legal servicesmarket in Australia,
by exposing itto competition policy. Of cousse, we do not suggestthat
competitionprinciples providea complete solution to access to justice
problems (as is evidencedby all the other areaswe have canvassed).
None the less, we advocate the extension of the competitionprinciples
embodied in the Trade PracticesAct 1974 (Cth)to the legal services
market throughout Australia. We prefer that thisextension takeplace in
the contekt bf the applicationof the Act to all unincorporated
businesses and professions,as a result of a reference of powers by the
States to the Commonwealth. Such a reference was suggested by the Hilmer
Cornittee in its report, National Competition Policya ,nd is presently
under considerationby the Council of Australian Governments (COAG).
"We also suggestthat the Governments of all Statesvest the regulatory
functions relatingto the legal professionin a statutorybody,
independent0.fthe professional associations, althougw he think the
associations could continue to be involvei dn the administrationof the
regulatory system. An alternative, butnot our preferred view, isthat
professional associations should continue to discharge regulatory
functions,but that an independent bodyhave the power to disallow rules
of the associationson public interest grounds. We consider that those
States that maintain formaldivisions between solicitors and barristers
should remove thosedivisions, although thiswould notprevent thosewho
wish to practise as specialist advocatesat a separate Bar from
continuing to do so."
It is noted that the Federal Government'sproposals, as stated above, are in
general terms; such is implicitfrom the word "overview". It was contended
that the Attorney General's proposals went beyond and hadthe effect of
threatening the independenceof the profession.
122. The Special Rapporteur hasbeen monitoringdevelopments inVictoria on
this very issue. He has learned that the Attocney General appointed a working
party to examine the proposals contained inher earlier discussionpaper. The
working party's report was publishedin September 1995. The recommendationof
the working party on the issue of the regulatory boardis that it be composedof three non-lawyermembers appointedby the executiveand three members
elected by the profession. The Chairman should be a serving or retired judge.
The question of assuring the independence of the members in terms of their
office and conditionsfor removal is being studied.
123. Subsequent to the release ofthe working party's report the Attorney
General in December 1995released proposalsfor a draft Legal Practice Bill to
replace the current Legal Profession Practice Act, 1958 for public comment
prior to tabling beforeparliament. The purpose of this exercise is to
receive further public comments on the proposals "beforea final decision is
made by the Victorian Government onthe issues covered by those proposals".
It has been learned that further changes may be proposed andhence the Bill is
not likely to be tabled before Parliament until later this year.
124. The Special Rapporteur is regularly intouch with the Law Institute of
Victoria and other interested groupsand is monitoring developments. The
Special Rapporteur, while commending the Victorian governmentfor constantly
seeking the public's views and thoseof the profession on its proposals and
taking them into consideration,neverthelesswould urge the governmentnot to
formulate any legislation which woulu dndermine or be seen to underminethe
independence of the legal professionin Victoria. Any such legislation
emanating from Australia, whether at the federal or state level, would send
the wrong signal to Governments insome countries in the region where the
independenceof the profession remains fragile.
Action commenced by the iudqes ofthe abolished AccidentCompensationTribunal
125. A brief reference was made in the report to the Sub-Commission on
,Preventionof Discriminationand Protection of Minorities by Mr. Louis Joinet
(E/CN.4/Sub.2/1993/25, para. 131) regardingthe removal of the 11 judges of
the Accident Compensation ~ribunal by the repeal of the legislationwhich
created the Tribunal. The affectedjudges were offered neither other similar
or equivalent judicial posts norwere they compensated. The judges complained
that upon appointment theyhad been assured of security of tenure, like any
other independentjudge. The Government's contentionwas that those judges
did not enjoy such security of tenure. The State governmentwas alleged to
have resorted to removing the judges by legislatingthe entire Tribunal outof
existence, therebymaking its judges redundant. Concernswere expressedin
many quarters that such action undermined judicial independence. Nine of the
11 judges have since commenced legal action in the FederalCourt in Victoria
for compensation arising from theirremoval.
126. The Special Rapporteur has been monitoring developments i this pending
action. At the time the present reportwent to press it was learned that the
parties were still at the stage of filing affidavits and the action islikely
to be scheduled for hearing later this year. The decision of the federal
court in this action would have important implicationsfor the security of
tenure of judgesof statutory tribunals and thus for their independentstatus.
The Special Rapporteur intends to observe the proceedingspersonally or to
send a representativeto the hearing. 1page 35
Western Australia
I
127. At the time the present report went to press the Special Rapporteur
received informationthat a report based on a review of Western Australian
labour relations legislationhad recommended,inter alia, that the office of
the President of the Western Australian IndustrialRelations Commission who
that thepresent holderof the office may not be appointedto another judicial
post if his office is abolished as expected.
128. The Special Rapporteurviews this latest development withconcern and
will be writing to the Attorney General of Western Australia. This once again
raises the issue of the securityof tenure of judges of statutory tribunals.
I
New South Wales
129. In an unprecedentedmove the State governmentof New South Wales
conducted a referendumin the State to seek public approval to entrench
judicial independenceso that Parliamentis prevented from changing the laws
affecting judicial independence without referendum. The referendum was held
in conjunctionwith the State electionon 25 March 1995. The results were
65.9 per cent of the electorate in favour of such entrenchmentand
34.1 per cent against.
130. Thoughthe SpecialRapporteur has yet to see the text of the legislation
to entrench,he commends theNew South Wales government for this bold,
unprecedentedand positive step to enhance judicial independencein that
State. The Special Rapporteur alsocommends the legalprofession in
New South Wales whose members lobbieamong the voters for support.
Cambodia
I Information transmittedto the Government
I
131. On 6 January 1995 the Special Rapporteur informed the Government that he
had received information allegingthat the executive branch of Government was
to be entrusted with thepower of appointment, promotion and dismissof
judges.
132. On 10 January 1995 the Permanent Mission of Cambodia to the
communicationtransmittedby the Special Rapporteur and indicated thatit had
been forwardedto the Government. To date, no further response has been
received from the Government.
China
I I
Information transmitted tothe Government
I 133. On 14 December 1995,the Special Rapporteur sent an urgent joint appeal
with the Chairman-Rapporteurof the Working Groupon Arbitrary Detention and
I the Special Rapporteur onthe right to freedom of opinion and expression page 37
regarding the case of Wei Jingsheng. The appeal called theattention of the
Government to a previous communicationtransmitted bythe Chairman of the
Working Groupon Arbitrary Detention dated 27 June 1995 regarding the reported
incommunicadodetention of Mr. Wei, to which theGovernment hadnot replied.
The Special Rapporteur has yet to receiva e response.
134. According to the information received,Mr. Wei was formally arrested on
21 November 1995 bythe public securityorgans on charges of "plotting to
overthrow theGovernment", and that on 13 December 1995 hewas sentencedby
the Beijing No. 1 intermediatepeople's court to 14 years' imprisonment.
It was reported that his family found out only on 8 December that his trial
would start on 13 December, thusleaving no time for him to prepare his
defence. It was also allegedthat Mr. Weirs lawyer had not been allowed
access to him.
Colombia
Information transmitted to the Government
135. On 10 August 1995the Special Rapporteur submitted an urgent appeal to
the Government concerningthe murder of human rights lawyerJavier Alberto
Barriga Vergel on 16 June 1995. According to the source, Mr. Vergel was
acting on behalf of the Committee for Solidarity with Political Prisoners
(Comitede Solidaridadcon 10s Presos Politicos), whichis very activein .
investigating numerous cases of human rights violations that implicate members
of the police, thearmy and paramilitary groups.
Informationreceived from the Government
136. On 16 August 1995the Government repliedto the,urgent appeal on the case
of Mr. Vergelby indicating thatthe Presidential Advisory Council for Human
Rights had met with the Committeefor Solidaritywith Political Prisonersand
that certain agreements had been made. The Government agreedto expeditethe
investigations. In this regard, an official note wassent to the National
Director of Public Prosecutorsto ensure that the appropriatemeasures are
taken for a thorough investigation ofthe case. As a consequence,the
National Directionof Public Prosecutors orderedthe transfer of the
investigations thatwere undertaken by theprosecutor's office in Cficutato
the prosecutor's office in Bogot6 and a special prosecutor was assigned tothe
case. The Governmentnoted that this would allowa more efficient
investigationin a place other thanwhere the events took place. The
Government further statedthat it would make arrangementsto guaranteethe
security of the members of the Committee for Solidarity with Political
Prisoners in Cficuta. Finally, the Government stated that itwill submit for
the considerationof the President of the Republica proposal consistingof a
statement concerning the activityof defence lawyers representingalleged
members or real members of insurgentorganizations.
137. The Government also indicated that the Special Rapporteuw rill be
informed of the results of the above-mentionedinvestigationsand the
implementation of the agreements made. To date, the Special Rapporteurhas
not received this information. page 38
Observations
138. In light of the mission that is being sought to the country, the Special
Rapporteur will address the situationin Colombia in greater detail ata later
date.
Egypt
Informationtransmitted tothe Government
139. On 24 June 1994, the Special Rapporteursent a letter to the Ambassador
of Egypt in Kuala Lumpur requesting informatioo nn the detentionof lawyers.
140. On 27 July 1994, the Special Rapporteursent a letter to the Ambassador
,.,- of Egypt in Kuala Lumpur requestinga list of the names of those lawyers
arrested and released.
i 141. On 14 September 1994,the Special Rapporteur sentan urgent appeal tothe
Government of Egypt concerning the detentionof several lawyers following
demonstrationsprotesting the deathof a lawyer while in detention. The
Special Rapporteur also indicated that it had been brought tohis attention
that there was fear that the Bar Association would bedissolved by
administrativeaction, as had happenedin the past.
Informationtransmittedby the Government
142. On 18 October 1994,the Government repliedto the Special Rapporteur's
letters dated 27 July 1994and 14 September 1994. In its reply, the
Government indicated that some membero sf the Bar Association had exploited
their posts by claiming to speakon behalf on their colleaguesand adopting
positions that did not necessarily represen the views of the majority of
members of theAssociation. The Government did not make any attempt to
interfere inthe dialogue that was taking place, since it wished to show full
respect for the Association'sindependence andthe status of the legal
profession.
143. In this regard, some groups within the Association claimed to represent
lawyers as a whole and exploitedrumours concerning the death of the lawyer
Abdel Harith Madani in detention in order to gathertogether about 600 lawyers
at the Association's headquarterson 17 May 1994 when a member of the
Association's Council, using aloudspeaker, urged themto immediatelyhold a
public demonstrationin the street without giving prior notificationto the
authorities of their intentionto do so.
144. The Government indicatedthat after several attemptsto prevent the
lawyers from demonstrating in thisway, and after givingthe requisite
warnings, the securityservices were forced to use an appropriatedegree of
force to restrain them inaccordance with the regulations in force for the
dispersal of demonstrations and gatherings in order to prevent riots and acts
of violence.
145. As a result of the interventionof the security forces,36 lawyers were
arrested and were charged with variousoffences, includingparticipation ina page 39
criminal conspiracy to hold an unlawful gatheringand demonstrations,
assaulting thepublic authoritieswho were carrying out their officialduties,
throwing stones at vehicles and passers-by and resisting the public
authorities. Furthermore,the Government listed the legal norms thatwere
used as a basis to file the charges.
146. All of the lawyerswere released unconditionallyafter being held in
custody for various periods oftime.
147. With regard to lawyer Madaniwho allegedly died in detention, the
Government stated thatMr. Madani had had serious health problems before he
was detained andthat the day after being detainedhe was taken to hospital
where he died from an acute asthma attack.
148. With respect to the fearsconcerning thepossible dissolutionof the Bar
,... Association, the Government affirmedthat there was no real cause for such
fears, nor was thereany reason to attempt to influence orinterfere in the
work or activities of the Bar Associationas long as the persons runningits
affairs abidedby the provisions of the law.
Observations
149. The Special Rapporteur has not hadthe benefit of an in situ
investigationinto the allegationsand the Government's contentions. However,
the SpecialRapporteur had the benefit of reading thereport of the Centre for
the Independenceof Judges and Lawyers (CIJL) which undertook amission to
Egypt from 10 to 16 August 1994. The Special Rapporteur notesthe following
recommendationsof the CIJL:
(a) The Egyptian Government should ensure that the measures takenunder
the stateof emergency are strictly requiredby the,exigenciesof the
situationin accordance with Egypt's obligationsunder internationallaw,
particularly underthe International Covenanton Civil and PoliticalRights;
(b) The Egyptian legislature shouldenact laws to preventthe trial of
civiliansbefore militarycourts. The laws allowing forthe establishmentof
special courts should be reviewed in order to respect the right of Egyptian
citizens to be tried by ordinary judges in accordance with international law;
(c) The legislatureis also encouragedto draft forceful guaranteesfor
the protection ofdetained persons against torture and other humiliating
treatment. State Security personnel should be prevented from interrogating,
intimidatingand torturing detainees under the protection of the Prisons
Service;
(d) Lawyers must be allowed free contact withtheir clients without
intimidationor interference. The confidential contacts with their clients
and their families must be respected. All lawyerswho were detained for
reasons relating to their profession shouldbe set free at once;page 40
(e) Law No. 100 of 1993 concerning professional associations shoul be
reviewed to preserve the independence,the right to free association and the
right to self-governmentof professional associations, including the Bar
Association, as required by the Basic Principleson the Role of Lawyers;
(f) Members of the Egyptian Barare encouragedto adhere to theBasic
Principles on the Role of Lawyers in order to enhance their professionalism,
independence, freedom ofassociation and freedomof expression;
(g) The EgyptianGovernment should appointan independentjudicial
committee to investigateall casesof deaths of civilians indetention,
including the caseof lawyer Madani and, if it is found that these deaths
resulted fromofficial acts or omissions, should prosecute those responsible.
Honq Konq
150. In January 1995the Special Rapporteur received a letter from
Mr. Philip Y.I. Li, a member of the legal professionin Hong Kong who wasalso
a member of the Law Society Council. Thoughthe background tothis complaint
was the controversy overthe establishmentof the Court of Final Appeal in
Hong Kong toreplace the Privy Council, after reading all thm eaterials
received the Special Rapporteur determinedthat the thrust of the complaint
concerned the internalmanagement of the Law Society, specificallythe use or
abuse of proxy votes at the then-forthcoming extraordinary general meetin of
the Law Society in connectionwith the stand to be taken by the Society on the
Court of Final Appeal 'issue.
151. The Special Rapporteur soughta response fromthe President of the
Law Society on the allegation. After deliberating on the materials received
subsequently,the Special Rapporteur came to the opinion that thecomplaint
did not fall within his mandate and sent Mr. Li a letter stating,inter alia:
"However,my mandate, andinterpretingit from the events leading
to the creation of the samemandate, is to investigatecomplaintsof
actions or inactions resulting in a lawyer's inability to perform his
professional functionsas a lawyer independently without fear or favour.
"There appearsto be no evidence to indicatethat the allegationof
pressure on certain lawyers overtheir right to vote at the same meeting,
if proven true,may affect, interfereor hinder the alleged pressured
lawyers' professionalperformanceof their duties as lawyers.
"The Special Rapporteur should not, and for that matter, shoul ndot
be seen to be interfering in theinternal affairsof law societies or Bar
Associations unless the particular societyor association seeks his
assistance or advice on specificmatters."
152. As the issue attractedmedia attention in Hong Kong, the Special
Rapporteur issued a press statement tothe same effect. page 41
Japan
Informationtransmitted to the Government
153. On 6 March 1995, the Special Rapporteur sent acommunicationto the
Government with regard to informationhe had received concerningthe systemof
appointmentof lower court judges. In his letter to the Government he stated
that, accordingto information received from the source, there was
discriminationagainst certaincandidateswhen the Cabinet appointedthe
judges of the lower court from a list of persons nominated by the Supreme
Court. The Supreme Courtnormally compilesan "Assistant Judge Appointment
List" of potential candidates from among graduates of the Legal Trainingand
Research Institute. The Cabinet then makesthe appointmentsbased on the
list, thus respecting the will of the SupremeCourt. However, accordingto
the source, since 1970 there had been 49 cases of graduatesbeing denied
I.r- appointment. It wasalleged that these 49were rejected becauseof their
"thought orcreed".
i 1
Informationtransmitted by the Government
154. On 8 March 1995, the Special Rapporteurreceived a reply from the
Governmentto his communication inwhich the Government described the system
of selecting judges. In the selection and appointment of an assistant judge
'fromamong the legal apprenticeswho wishedto be judges, the Supreme Court of
Japan had constahtly considered competence, insightand other factors, based
o'nthe records of the Legal Training and Research Institute. Furthermore, the
Supreme Court had never refused to appoint a person as a judge because of his
or her thoughtor creed.
The daiyo kanqokusystem
155. The role of the daiyo kanqoku ("substituteprison") in the Japanese
criminal justicesystem has been the subjectof concern to lawyers and others.
The concern is largely over the use of such places for obtaining pre-trial
confessions. It is alleged that the usual safeguards forthe protectionof
the human rightsof the accused areabsent andthat judges tend to accept
I , without question confessions obtained in this manner. Since 1958 the Japanese
Federationof Bar Associations has publiclycalled for the abolitionof the
system. At the request of the Associationthe InternationalBar Association
sent a mission to Tokyo with the support of the InternationalCommission of
Jurists and the Law Associationof Asia and the Pacific in 1994/95.
156. The Special Rapporteur was sent a copy of the report of the mission. Of
concern to the Special Rapporteur is the finding that thedaivo kanqoku raises
problems for "therule of law and the independenceof the judiciary in Japan".
The mission found that the ready acceptanceby judges of confessionsobtained
under the system 1eads.to the perception of the judiciaryas being an
extensionof the prosecution, and called for the judges to be educated "inthe
true import of the concept of the independenceof the judiciary".
157. The Special Rapporteur viewsthe findingsof the mission with regardto
the independenceof the judiciary in Japanwith some concern and will pursue
the matter furtherwith the relevantgovernmentauthorities in Japan. page 42
Malaysia
158. A few recent decisionshanded down by the courts have placed the
Malaysian judiciary in the spotlight with allegationsof impropriety. The
catalyst was a questionable decision of a High Court judge on an ex parte
application ina commercial case. Both the High Court judge and the conduct
of the lawyer who acted for the applicantswere criticizedby the Court of
Appeal in rather strong terms. The Federal Court (the highest appellate
court) in a lightning appeal set aside the judgement of the Court of Appeal
and severely, in even stronger language, reprimandedthe three appeal judges
and directed that certain partsof the Court of Appeal judgement be expunged.
159. This commercialcase involveda struggle by businessmen to take control
of a publicly listed company called Ayer Molek; millions of ringgit were at
stake. The facts of the case and the manner in which the court procedures
,..- were used for the attempted take-over of the company and thelanguage of the
judgements of the Court of Appeal and the Federal Court presided over by the
Chief Justiceled the Bar Council ofMalaysia to issue the following press
1
statement on 21 August 1995:
"The Bar Council is deeplyshocked at the extraordinary events inthe
Ayer Molek Rubber Company case. These events are a matter of very great
concern to the commercial and corporate community andto the general
public. The totally differing views and commentsof the Court of Appeal
and the Federal Court raise very serious questions as to the
administrationof justice in Malaysia. These questions demand an answer.
Something is very seriously wrong."
1.60.The events aroused considerable public anxiety over the integrity,
independenceand impartialityof the judiciary. This was compoundedby
subsequent revelations that the judgementof the Federal Courtcould be a
nullity becauseone of the three judges who sat at that Federal Court sitting
was not qualified to do so under the provisionsof the Malaysian Constitution.
On 23 August 1995 the Special Rapporteur issued thefollowing press statement:
"Complaints are rifethat certainhighly placed personalitiesin Malaysia
including those in the business andcorporatesectors are manipulating
the Malaysian systemof justice and thereby underminingthe due'
administration of independent and impartial justice by the courts;
"Under the mandate entrusted to me by the United Nations Commissionon
Human Rights, I am duty bound to investigatethese complaintsand report
to the same Commission, ifpossible, at its fifty-second sessionnext
To facilitatemy inquiries I will seek the cooperationof all
year.
those involved in the administrationof justice, includingthe Government
which, under my mandate,is requestedto extend its cooperation and
assistance."
161. In a speech deliveredat the openingof an international conferencein
Kuala Lumpur on 9 December 1995, the Deputy Prime Minister of Malaysia,
Dato Anuar Ibrahim, alluded to the events andthe public anxiety overthe
state of the judiciary. He said, inter alia: page 43
"The growing concernof the public as regards the increasing incidenceof
judicial indiscretions isnot a matter to be taken lightly, nor viewed
negatively. In tandem with the growing maturityof our society, the
people's consciousnessand expectations of the moral dimension of justice
is greater. Not only must judges displaythe requisite level of
competence and expertise; like Caesar's wife[they must] be above
suspicion."
162. The Special Rapporteur has since gathered informationand is continuing
to do so. Following theterms of his mandate, the Special Rapporteur willnot
only inquire into allegationsof erosion of judicial independencebut will
inquire into and identifycauses leading to such erosion and provide specific
recommendations.
163. The causes which have ledto the present state of the judiciary could be
I..- traced to 1987/88 beginning with the amendment to the MalaysianConstitution
to remove judicial power from the High Court and the subsequent judicial
crisis when six independent senior judgesof the then Supreme Court, including
its Lord President, were subjected to disciplinarytribunal proceedings.
Three were dismissed, including the Lord President.
164. The then Chief Justice, Tan Sri Hamid Omar, who presided over the
tribunal which recommended the removalof the Lord President, succeeded to the
office of the Lord President of the Supreme Court. And this same Lord
President retired from office in 1994 amidst severalpolice reports lodged
against him for corruption. TheAttorney General in a public statement said
that there was no evidencefor any prosecution.
165. Due to space constraints inthe present reportcoupled with the
investigations stillin progress, the Special Rapporteur will submita
separate detailed report on the state of the Malaysian judiciaryto the
Commission ata later date.
Mexico
Informationtransmitted to the Government
166. On 6 July 1995 the Special Rapporteur senta communication to the
Government expressing his outrage at tha essassinationof Judge Polo Uscanga
on 19 June 1995. In his communication,the SpecialRapporteur referred to
his previous urgentappeal sent to the Government on 19June 1995. On
that occasion,the Special Rapporteur advised the Governmentof the
informationhe had receivedconcerning the resignation underpressure of
Judge Abraham Polo Uscangaon 1 April 1995 because he refused to issue a
warrant for the arrest of the leaders of the Union Ruta 100. Following his
resignation, Judge PoloUscanga issued a statement explaining that he had
refused to issue.the warrant because he consideredthat it did not satisfy
the minimum evidentiary requirements. Soon afterwards,he began
receiving threatening phone calls. According to the information received,
Judge Polo Uscanga was kidnapped at gunpoint, blindfolded and taken to an.
unknown destination, severely tortured, and then released. He was
subsequently found shotto death. 167. The Special Rapporteurconsiders that thedeath of Judge Polo Uscanga
puts at grave risk the independence and the impartiality of the judiciaryin
Mexico. The Special Rapporteur considered that if a thorough investigationis
not carried out and the responsible parties punished, a climate of distrust
and impunity and a grave precedent will beestablishedfor the magistrates of
the United States of Mexico.
Information transmittedby the Government
168. On 14 December 1995,the Government replied tothe communicationsof the
Special Rapporteur concerning Judge Polo Uscanga. Inits reply, the
Government attacheda copy of a report submittedby the Commission of Human
Rights of the Federal Districtand of a report submitted jointly by the
Federal Prosecutor and an ad hoc commission created by .;:he National Assembly.
,.,. 169. The report of the Commission of HumanRights dated 18 July 1995 stated
that the Superior Tribunal ofJustice of the Federal District authorized a
i 1 leave of absence requestedby Judge Polo Uscanga on1 April 1995. The reason
for the request, according to the judge,was that anothermember of the
Tribunal, Mr. Saturnino Aguero Aguirre, had tried to intimidatehim. On
5 June 1995, Mr. Polo Uscanga fileda complaint thathe had received death
threats and that he had been kidnapped and tortured. The report contained
extensive details of the torture allegedly suffered by Mr. Polo Uscanga. On
20 June 1995, his body was found in circumstancesthat led the police to think.
that he had been murdered.
170. Accordingto the joint report, Judge Polo Uscangawas shot in the back of
the head by two or three people. The gun found at the scene of the crime was
the murder weapon. Nothing had been stolen from his apartment.
Observations
171. The Special Rapporteur thanksthe Government forproviding him with the
preliminary resultsof the investigationon the assassinationof
Judge Polo Uscanga. However,the Special Rapporteur wishesto express his
view that it!is still necessaryto identify and bring to justice those
j responsible for this outrageous crime, which willcontinue to be a threat to
the independenceof judges and lawyers inMexico.
Information transmittedto the Government
172. On 29 May 1995, the Special Rapporteur senta message to the Attorney
General, AdvocateR.V. Rukoro, concerningthe informationhe had received
concerning theLegal Practitioner'sBill 1995 which hadbeen tabled in
Parliament. Accordingto the informationreceived, it appeared that certain
provisions of theBill would have theeffect of directly undermining the
independence of the legal profession in Namibia and,subsequentlyand
inevitably, the independenceof the judiciary. page 45
173. On 16 June 1995, the Ministryof Justice oi Namibia replied to the
Special Rapporteur'scommunicationconcerning theBill. He indicated that
nothing in the Legal Practitioner'sBill 1995 could objectively be said to
violate the universally accepted norms for the protection of an independent
legal profession. The Minister of Justice indicated thatwhat was really at
issue was simply self-interest. The members of the Law Society and the
Society of Advocates were allwhite but for a handful of indigenous black
lawyers. After independence,the status quo continued whereby their law firms
were entrusted with the training andadmission of new advocates and attorneys
through articlesaf clerkship. Their firms were underno obligation to take
any law gradu,atebut could do so at their discretion.
174. The Minister further stated that there were well in excess of 25 young
black law school graduates at the time of independencewho had acquired their
academic qualificationsin exile during the struggle,most of them from
reputable universitieslike Warwick in the United Kingdom. Most of these
young men and women could not get articlesfrom the white law firms.
According to the law firms,any legal educationacquired outside SouthAfrica,
which was their bastion, was suspect.
175. The result ofthis had been that since independence5% years ago the
"so-called independent legal profession" had not admitteda single advocate
and only a handful of attorneys, certainlyless than five. This was a poor
record and it could be said that there was a deliberate attemptto keep the
number of legal practitionersas low as possible.
176. Private legal practitioners are ap tresent found onlyin Windhoek and a
few of the larger centreswhich were previously,under the apartheid law,
designated aspolice zones where blacks were notallowed to live. Wellover
70 per cent of the population livedand still lives outside these zonesand
not a single one of those townshas even a single private legal practitioner.
They have to travel 500-900 kilometres to obtain the services of a lawyer.
177. With such animbalance of legal services,it had become amatter of
necessity for the Government to lookat other ways of training lawyers at a
pace that would beacceptable to addressthe imbalance. The Law Faculty was
therefore establishedat the University as well as a Justice Training Centre
to train graduatesin practical skills. This method of training isnot
particular to Namibia; it exists in many other countries.
178. The definition of legal practitionercontained in the Bill and complained
of by the law societiesis also a definition foundin most legal systems.
Lawyers are lawyers in whichever sectorthey work. The Bill's only "mischief"
is to bring about changes thatwould afford Namibians equal opportunities both
to study law and to obtain the services of lawyers by ensuringthe training of
more lawyers to join the legal profession.
179. The Minister of Justice considered that in view of the above-mentioned.
reasons he did not consider it necessary for thelegislatideprogramme of the
National Assembly to be deferred owing to theSpecial Rapporteur's
involvement. page 46
180. The Governmentraised a question regarding the interventionof the
Special Rapporteurat the present stage of the situation. It is indicated
that both the Optional Protocolto the International Covenanton Civil and
Political Rightsand resolution 1503 (XLVIII)of the Economicand Social
Council, which recognizedthe right of individualsor groups of individuals to
communicate complaintsabout violations of their human rights tobodies such
as the mandate of the Special Rapporteur, provide thatall possibledomestic
remedies must be exhaustedbefore the complaint canbe entertained. In
Namibia, citizens havea right to test the constitutionalityof any Act of
Parliament in a competent court of law. This conditionhas not been fulfilled
by the two societies. TheMinister questioned whetherthe Special Rapporteur
was not obliged to ensure that this procedure is adhered to.
181. The Special Rapporteurthanks the Minister of Justice for his detailed
...- and for equal opportunities forall citizens without any discrimination.ssion
Observations
182. While the Special Rapporteuris of the opinion that it is unnecessaryfor
special rapporteurs andworking groups of the Commissionon Human Rightsto
delay considerationof an issue brought to their attention until domestic
remedies have been exhausted, he nevertheless intends to raise this iss ate
the forthcoming meetingof special rapporteurs scheduledfor 28 to
31 May 1996.
Niqeria
Information transmitted tothe Government
183. On 2 November 1995, the Special Rapporteur and the Special Rapporteuron
extrajudicial,summary or arbitrary executionssent a joint urgent appealto
the Government of Nigeriadrawing the Government'sattention to the
information they had received containing the following grave allegations.
184. On 30 and 31 October 1995, Ken Saro-Wiwa, writer, environmentalist and
I I President of the Movement forthe Survival of the Ogoni People (MOSOP),as
well as Dr. Barinem Kiobel, Saturday Dobee, Paul Levura, Nordu Eawo,
Felix Nuate, Danial Gbakoo, John Kpuinem and Baribor Bera, were reportedly
sentenced to death by hanging by the Civil Disturbances Tribunalin
Port Harcout, Rivers State. They were allegedly convictedin relation to the
murder of four Ogoni leadersin May 1994. After their arrest in May 1994,the
nine were reportedly held incommunicado for eight months, without any charges
brought againstthem. They were allegedly ill-treated during their detention
in overcrowded andunhygienic cells, and they were allegedly denied medical
treatment. The trialof the nine had been reportedto be unfair, and the
defendants allegedlyhad no right to appeal against the sentence.
185. The denial of medical treatment might have resulted in the death of
another accused, Clement Tusina, who reportedly died from diabeteo sn
15 August 1995 during detention. page 47
186. Disturbing reports had been received concerning thelack of independence
and impartiality of the Civil Disturbances SpecialTribunal, which was
allegedly establishedby the Government especially to try the case in two
separate trials. The Governmentwas reported to have appointed the members of
the Tribunal, among whom was a serving armed forcesofficer. It was alleged
that the verdictsand sentences of the Special Tribunal wouldhave no legal
status until confirmedby the Government,which could accept or reject the
Tribunal's findings in secrecy without anylegal argumentand without giving
any reasons. Moreover, it was alleged that the militaryhad wielded an
improper influenceover the Tribunal'sproceedings. It was furthermore
alleged that two key prosecution witnesseshad been bribed and threatened to
give false evidence, andthe defence lawyers of Ken Saro-Wiwa werereported to
have withdrawn from the trialsin June and.July 1995, as a protest against
alleged bias of the Tribunal in favour of the prosecution.
,..- 187. On 9 November 1995,the Special Rapporteursreiterated their urgent
appeal of 2 November to the Government of Nigeria. They expresseddeep
i 1 concern to have learnedthat the Provisional RulingCouncil on 9 November 1995
had unanimously confirmed death sentences for the nine persons, including
Ken Saro-Wiwa. TheSpecial Rapporteursstrongly urged the Government of
Nigeria to refrain from carryingout the death sentencesand urgently to
provide the Special Rapporteurswith informationconcerning the way the trial
was conducted.
188. The SpecialRapporteurs,on 2 November and 9 November 1995, jointly
issued press releases in which concernwas expressedabout the human rights
situation in Nigeria andthe confirmationof death sentenceson the nine Ogoni
activists respectively.
189. On 21 November 1995,the Special Rapporteurwrote to the
Charge d'affaires ofthe Permanent Missionof the Federal Republicof Nigeria
to the United Nations Office atGeneva stating thatin the light of recent
events and the concern expressed by the international community over the state
of the rule of law and human rights,including the independenceof judges and
lawyers, in Nigeria, hewould 1,iketo undertake a joint mission with the
Special Rapporteur on extrajudicial, summaryor arbitrary executionsto
investigate and to report on the state of the independenceof judges and
lawyers pursuant to the mandate givenhim by the Commission on HumanRights.
The Special Rapporteur requested the Government oN figeria to extend all
facilities and access to all materials and personalities so.that he might be
able to carry out his mission meaningfully and constructively. The Special
Rapporteur sought an immediate response tohis proposal to enable him to carry
out his mission within three months from21 November 1995. Although
consultationshave been held with the Chargk d'affaires and Ambassador of
Nigeria, to date the Special Rapporteurhas not received aresponse from the
Government concerning such a mission,
On 4 December 1995,
190. the Special Rapporteur wrote to the Charge d'affaires
of the PermanentMission of theFederal Republic of Nigeriato the
United Nations Office at Geneva, drawinghis attention to information received
by the Special Rapporteurs concerningthe case of 17 Ogoni activistswho were
arrested in mid-1994 followingthe alleged murderof four Ogoni leaders in
May 1994. It was alleged that the 17 individualswere detained incommunicado page 48
and without charge from mid-1994 until June 1995. It was alleged that they
were brought beforea magistrate's court in Port Harcourt on a "holding
charge", believed to be for murder. It was further alleged thatfour other
Ogoni activists - whose identities arenot known - were reportedly arrestedon
24 October 1995 and charged with murder,also in connection with the May 1994
murders. ,Followingthe execution of the nine Ogoni activists on
10 November 1995, concernhad been expressed thatthe 21 Ogoni activists
referred to above could be unfairly tried and sentenced to death by the Civil
DisturbancesTribunal, which was considerednot to be independent. Further,
it was a fact that there was no right of appeal fromthe decisions of that
Tribunal and itwas left to the discretionof the executive to either confirm
pr not to confirm the convictionand death sentence.
191. If these allegationsare correct, the 21 Ogoni activistswould be tried
,..- and impartial justice.of thTo date, theSpecial Rapporteur has received nodent
response to this communication.
i 1
192. On 8 February 1996 the Special Rapporteur andthe Working Group on
Arbitrary Detention transmittedan urgent appealto the Ministry of Foreign
Affairs on behalf of Gani Fawehimni,a human rights lawyer who allegedly had
been detained by the security forcesand was being held incommunicadowithout
any criminal chargeshaving been brought against him.
193. On 22 ~oveher 1995, the Permanent Missionof the Federal Republicof
Nigeria to the United Nations Office at Geneva forwarded to the Centre for
Human Rights a press release issuedby the Attorney Generalof the Federation
of Nigeria and Minister of Justice, as well as informationon the carrying out
of the death sentences passed on Ken Saro-Wiwa and the eight other Ogoni
activists. In the press release,the Attorney General"maintainsthat Nigeria
as a sovereign nation will not accept dictations from members of the Western
World who apply double standardswhere it suits their purposes". The Attorney
General claimedthat the Ogoni trialwas "fair, open and in accordance with
acceptable standards" and that "there is no way this case couldhave been
tried by the ordinary court since our law recognizes that offences arising
from civil disturbances can only be tried by a Tribunal."
I I
194. On 11 December 1995, the Permanent Missionof the Federal Republic of
Nigeria to the United Nations Office atGeneva informed the Centrefor Human
Rights that it had transmittedto the relevant Nigerian authorities for
necessary action the letter dated 4 December 1995 of the Special Rapporteur on
the independenceof judges and lawyers concerningthe allegationswith regard
to the 21 Ogoni activists.
Observations
195. The Special Rapporteur isconcerned that under the law establishingthe
Civil Disturbances SpecialTribunal, there is no right of appeal. Nor is
there provision for review by a body independent bothof the Tribunal and of
the State. The decisions of the Tribunal are effective only upon confirmation
by the executive and cannot be challengedby the courts. This appears to be
an attack on justice, which could facilitate otherand broader humanrights
violations. The Special Rapporteur consequentlycalls on the Government of page 49
Nigeria to ensure that the Special Disturbances Tribunal conforms to the
standards of proceedings for fair trial ascontained in the relevant
international instrumentsor to abolish the Tribunal altogether.
196. Furthermore, the Special Rapporteur is deeply concernedabout the long
delay by the Government of Nigeria in responding to aletter of the Special
Rapporteurdated 21 November 1995 seeking permissionfrom the Government to
undertake a joint missionwith the Special Rapporteuron extrajudicial,
summary or arbitrary executions during which they can investigate and report
on the state of the independenceof judges and lawyersin the light of recent
events and in view of the concern expressedby the international community
over the rule of law and human rights situationin Nigeria. In this regard,
the Special Rapporteur urges Nigeriato respond promptly and positively to his
request to undertakean investigatory missionto Nigeria.
Pakistan
197. The Special Rapporteurhas been receivinginformationby way of memoranda
and clippings of media reports alleging erosion of judicial independence in
Pakistan and threats to the independenceof its lawyers.
198. The thrust of the allegationsare over supersessionin the appointmentof
the Chief Justiceand the appointmentof ad hoc judges in place of permanent
judges to the Supreme Court. Under article 182of the Constitution of
Pakistan ad hoc judges are appointed in specific circumstances,primarily'asa
temporarymeasure. These appointments caused considerable controversy i the
independent mediaand the Bar Associations were vocal in their protests.
1.99. In a related developmenta senior advocateof the Supreme Court Bar
Association, Mr. MohammedAkram Sheik, a vocal criticof these appointments,
was chargedwith contempt of court in June 1995 over public statementshe made
regarding a judgement of the.SupremeCourt where fourof the seven judges who
decided thatcase were ad hoc judges. He questioned,inter alia, whether the
Supreme Court was properly constituted with respect tt ohe provisions of the
Constitution.
200. Concern was also expressedthat the contempt charge wouldbe heard before
a panel of ad hoc judges in the Supreme Court. No hearing datehas been
fixed.
201. At the time of writing it was learned that the constitutionality of the
appointmentof ad hoc judges is currently being heardby a full bench of
five Supreme Court judges.
202. In another developmentthe Special Rapporteur received the alarming
informationon the attempted assassinationof Asma Jahangir and Hina Gilani on
19 October 1995at their respectivehomes. It was suspected thatthe
attackers werereligious fanatics andthat their actions were reprisals for
the two courageous human rights lawyers having successfully defended
two persons accusedof blasphemy, acase which arousedconsiderablepublic
.interest andunrest. The Special Rapporteur communicated directly and
personally withAsma Jahangir who assuredhim that she and her family, page 50
together withHina Gilani and family, were given adequateprotection by the
Government. The attempted assassinationw sere condemned by all quarters,
Government, oppositionand the media.
203. The Special Rapporteurhas also been receiving information of lack of
unity within Bar Associations in Pakistan. It appears to the Special
Rapporteur thatthis lack of unity could have resulted from politicization
within the BarAssociations which, if true, could seriouslyundermine the
independenceof the profession.
204. The Special Rapporteurhas sought to ,leada mission to Pakistan and to
this end has haddiscussions with therepresentativeof the Permanent Mission
of Pakistan in Geneva. The Special Rapporteur isawaiting a positive response
from the Government of Pakistan.
,.,- -eru
1 ) Information transmittedto the Government
205. On 25 July 1995 theSpecial Rapporteur transmittedto the Government
two urgent appeals concerning informatioh ne had received on thecases of
Judge ~ntonia Saquicuray S6nchez and human rights lawyer Tito Guido Gallegos.
According tothe informationreceived, on 16 June 1995 Judge Saquicuray
began receiving deaththreats by phone aftershe made a statement concerning
the promulgationon 15 June 1995of the Amnesty Law bythe executive.
Mrs. Saquicurayhad stated that the Law was not applicableto the
investigationsbeing carried out into the massacreat Barrios Altos which had
occurred in November 1991. In the case of Mr. Guido Gallegos, the source
reported thathe began receiving death threats on.23 June 1995 in relation to
his legal activities inopposition to the Amnesty Law.
206. On 1 Augu'st1995 the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteuron extrajudicial,summary or arbitrary executions, the
Special Rapporteuron the question of torture,and the Chairman of theWorking
Group on Enforced or Involuntary Disappearances concerning the promulgatio on
Amnesty Laws 26479of 15 June 1995 and 26492of 2 July 1995. The first of
I I these laws grants general amnesty to military, policeor civilian officials
for acts derived fromor committed in connectionwith or as a result of the
fight against terrorism since May 1980. According tthe information
received, and inapplicationof the amnesty laws, members ofthe armed forces
who were on trial for violations of human rightsmight have been released.
The second of the laws declares that the amnesty granted is non-justiciable
and would not constitute a violation of the Constitution norof the country's
internationalobligations.
207. On 24 November 1995, the SpecialRapporteur sent an urgent appeal to the
Government concerningthe case of Dr. Margarita Chuquiuru Silva, a lawyer who
was allegedly detainedon.28 February 1994 on charges of terrorism. She was
tried according tothe procedure establishedin articles 13 to 18 of
Decree 2475 of 1992. In accordance withthis decree, the trial was private
(art. 13 f);there was no procedure for challengingthe judges (art. 13 h);
the identity of the judgeswas secret; the judicialdecisions did not carry a
signature or a seal and the judges were not able to be identified visually or orally by the defence lawyeror by the defendant (arts. 15 and 16). She was
found guilty and sentenced to 20 yearsf imprisonment. According to the
source, there was no evidenceto prove her guilt except for the testimony of
an informer who was unable to explainwhere he had met Dr. Chuquiuruor his
relationshipwith her. According tothe source, this casewas part of a
systematic and general policyin Peru of persecutionand harassment of defence
lawyers who represent individualsaccused ofterrorism.
208. On 11 December 1995, the Special Rapporteursent an urgent appeal to the
Government concerningan allegation dealing withthe death threats received by
human rights lawyers of the Association forHuman Rights, which is a member of
the National Coordination for Human Rights. According to the information
received, a woman delivered byhand a funeral floralarrangement in the shape
of a cross to the offices of the Association forHuman Rights. Attached to
this floral arrangementwas a funeral note that listed the names of people
I.,- still alive. Several of the listed people werehuman rights lawyers. This
0 funeral note was signed by a group called COLINA which, according to the
information received,was a paramilitary group involved in various human
rights violationsin Peru, including the massacres in BarriosAltos and
La Cantuta.
209. On 3 January 1996the Special Rapporteursent an urgent app,ealto the
Government concerning information he had receivedon the case of an American
citizen, Ms. Lori Berenson, who was arrestedby the Peruvian policeon
30 November 1995for alleged participationin acts of terrorism. The source
indicatedthat she was to be formally accused by a tribunal composed of
"faceless" judges. On 12 January 1996 the Special Rapporteur learnedthat
Ms. Berenson had been triedby a "faceless" militarytribunal, found guiltyof
treason and sentenced to life imprisonment.
Information transmitted bythe Government
210. On 1 May 1995, the Government submitted tothe Special Rapporteur
information concerning changes made to the internallegislation on terrorism.
The Government had issued Law No. 26447 whichrevoked article 15 of Decree Law
No. 25475 which established the use of "faceless"judges: part of the
I I national pacification process. The Government emphasized thatarticle 2 of
Law No. 26447 provides for the presence of the defence attorney from the
beginning of the interventionby the police.
211. On 21 August 1995, the Government replied tothe joint urgent appeal
concerning the amnesty laws. The laws were enacted by Congress on the basis
of article 102, paragraph 6, and article 139, paragraph13, of the Peruvian
Constitution,which give Congress the power togrant amnesty. Article 55 of
the Constitution stipulatesthat international treaties concludeb dy Peru are
part of national law andare therefore subject to the constitutionalregime,
as are all the country's laws. Thus, not only did the constitutionalpower of
Congress to grant amnesty not contradict the relevant treaties, but those
treaties do not expressly prohibit the implementatioo nf articles 102 and 139
of the Constitution.
212. On 8 December 1995, the SpecialRapporteurreceived a reply from the
Peruvian Government tohis communicationof 25 July 1995 concerning thecases page 52
of Antonia Saquicuray Sanchez andTito Guido Gallegos.,With regard to
Ms. Saquicuray,the investigationshad not yet yielded any results. With
regard to Mr. Guido Gallegos, the letter statedthat the prosecutor's office
in Puno had arrangedfor the investigations concerning the death threats he
had received from paramilitary groups and that thp eolice headquartersof the
region hadprovided protection forMr. Guido Gallegos.
213. In the light of the mission being sought to the country, the Special
Rapporteur will address the situation in Peru in greater detailat a later
date.
Sinqapore
214. ~lle~ationsof lack of independenceand impartialityof the judiciary
were vehementlydenied by the executivebranch of the Government. During a
I... special debate inParliament in early November1995, the SingaporeGovernment,
and in particular senior minister Lee Kwan Yew, came out in strong defence of
i 1 the independenceof the judiciary as an institution andthe integrity of its
individual judgesand, in particular, the Chief Justice.
215. Singapore's judges today receive thehighest salaries in the world. This
island republic prides itself on an efficient judicialadministrationwhere
cases, both criminal andcivil, are disposedof speedily under strict case
management control.
216. In another development theAttorney Generalof Singapore, in a speech
delivered at a'seminar on professional practice'and responsibility in
November 1995, inquired of the Law Society of Singapore why it failed to
defend Singapore's legal system and judiciarywhen it was attacked by the
foreign press.
217. The Special Rapporteur hasnot had a response fromthe Law Society.
Neither has the Special Rapporteur received the Hansard record of the earlier
parliamentary proceedings.
218. The Special Rapporteur observes that the allegations concerningthe
I independenceand impartiality of thejudiciary couldhave stemmed from the
very highnumber of cases won by the Government or members of the ruling party
in either contempt of court proceedings or defamation suits brought against
critics of the Government,be they individualsor the media. In the recent
contempt of court charges brought against the~nternationalHerald Tribuneand
others, the Attorney Generaladduced evidence to show thatover a period of
time defamation suits brought against11 oppositionpoliticians by members of
the rulingparty all succeeded before thecourts.
Sudan
Informationtransmittedto the Government
219. On 28 September 1995, the Special Rapporteursent an urgent appealto
the Government citing informationhe had received concerning the arrest of
three prominentlawyers in Khartoum. According tothe information,
MustaphaAbdel Gadir and Mohamed Ali al-Saydi were arrested in Khartoum on page 53
12 September 1995. The sourcealleged that themen had been detained without
charge or trial by the security forces in Kober prison in Khartoum. The
source alsoreported that BushraAbdel Karim is believed to have been arrested
at the same time. The source claims that themen had been arrested because of
the leading role they played in defending opponentsof the Government whohad
been broughtbefore the courts oncriminal charges. To date there has been no
response fromthe Government ofthe Sudan.
Tunisia
Informationtransmitted to the Government
220. On 23 December 1994 the Special Rapporteursent a communicationto the
Government concerning informationhe had receivedon a seminar on the
independentjudiciary and its functions in Tunisia held in Tunisia from 14 to
,_. . 24 of November 1994. ~ccording to this information,the publication ofthe
minutes of the seminar allegedlywere modified following pressureon the
participantsexerted by the Ministry of Justice. It was further alleged that
the participants wereindividually summonedto the Centre for Legaland
Juridical Studies of the Ministry of'Justicewhere they were asked to signa
letter to withdrawthe original document.
Informationtransmittedby the Government
221. On 6 October 1995 the Special Rapporteurreceived a reply from the
Governmentto his communication,in which it acknowledged thatthe seminar had
been held, for 23 Tunisian judges,within the framework of a programme
organized jointlyby the Centre for Legal and JuridicalStudies of the
Ministry of Justice and the Centre forthe Independenceof Judges and Lawyers
of the International Commissionof Jurists, in cooperation with the Arab
Institute for Human Rights, the High Instituteof Judges, the Tunisian
Association ior Penal Law and the Tunisian Organizationfor Education andthg
Family. The Government statedthat the independenceof the judiciaryis
enshrined in the TunisianConstitutionwhich, in article 65, stipulates that
"in the exerciseof their functions, judgesare subjected only to the
authority of the law". In addition, the Government pointedout that judges
have an associationwhich ensuresthat they are independentand defends their
moral andmaterial interests.
222. The Government stated that contrary to the allegation received by the
Special Rapporteur, theparticipants were not summoned to the Centre for Legal
and Juridical Studies and that thesummary records of the seminarwere not
modified following pressure whichwas reportedly exercised. In fact, after
the conclusion of the seminar, theparticipantsrealized that the document
entitled "Summaryof the Activities ofthe Courses", whichhad been
distributedduring the hours just before theclosing of the training session
without them havinghad time to examine its contents, did notfully reflect
the contents of the debate. Therefore, they decided to hold a meeting at the
Centre, thevenue where they usually met, in order to discuss the matter and
to adopt a common position regardingthe document. At the end of their
meeting, they issued a document reflectingthe totality of the views
expressed. 223. Furthermore, theGovernment indicated thatit would appear that contacts
subsequent to the holding of the seminah rad been undertakenbetween the
organizers of the seminar and the secretariatof the International Commission
of Jurists, which wouldbe in a position to clarify the situation.
224. Pursuant to the recommendation from the Government to seek clarification
from the InternationalCommission of Jurists, the Special Rapporteur takes
note of a press release issuedby the ICJ on 9 December 1994, in which the ICJ
and its Centre for the Independence of Judges and Lawyers stated that the
Ministry of Justice had pressured participating judges to sign a new document
significantly differentin content fromthe document entitled "Summaryof the
Activities ofthe Course",which was a collection of reportsdrafted by
participantsduring the seminar. Accordingly, the Special Rapporteur calls
upon the Governmenf of Tunisia to take the necessary measures to remedy this
situation.
,.,-
United Kinqdom of Great Britain and Northern Ireland
Enqland and Wales
225. In paragraph 56 of his first reportto this Commission,the Special
Rapporteur alluded to theneed for clarificationwith regard to the function
of judicial review, or its equivalent,of the constitutionalityor legality of
executive decisions, administrative ordersand legislative acts. The Special
Rapporteur observedthat there were considerablemisunderstandings onthe part
of governmentalauthorities and even parliamentariansover this power of the
courts.
226. The Special Rapporteur notes with grave concern recentmedia reports in
the United Kingdom ofcomments by ministers and/or highly placed government
personalitieson recent decisions of the courts on judicial reviewof
administrativedecisions of the Home Secretary. The Chairman of the House of
Commons Home Affairs SelectCommittee was reported to have warned that ifthe
judges did not exercise self-restraint,"it is inevitable thatwe shall
statutorilyhave to restrict judicial review". The controversycontinued and
reportedly promptedthe former Master ofthe Rolls, Lord Donaldson,who was
said to have accused the Government oflaunching a concerted attack on the
independenceof judiciary, to have said, "any government whichseeks to make
itself immune to anindependent reviewof whether its actions are lawful or
unlawful ispotentially despotic".
227. The Special Rapporteur willbe monitoring developments in the
United Kingdom concerning this controversy. Thatsuch a controversy could
arise over this very issue in a country which cradledthe common law and
judicial independenceis hard to believe.
Northern'Ireland
228. According to the information receivedon the situation in
Northern Ireland, visitsbetween lawyersand their clients in prison were
normally conducted under"open" conditions,i.e. in a room with the door page 55
closed but which was open to the view of the prison officers who could see
everything that occurredbut were unable to hear what transpired betweenthe
lawyers and their clients. Reportedly,the Government has initiated a new
policy wherebycertain prisoners who have been designated as being
"exceptional high risks" have had special arrangements imposedupon visits by
their lawyers and their families. There were about 15 prisoners, 8 of them
Irish, affected by the policy.
229. Under the new policy, all persons visiting "exceptiona high risk"
prisoners, including defence lawyers, ars eubjected to .stringentsearches. In
one reported incident, a prisoner was strip-searched both before ana dfter the
lawyer's visit, even though no physical contactbetween the prisoner and the
lawyer had been possible. It is also alleged that the authorities fait lo
respect lawyer-client confidentiality where suc prisoners are concerned.
L: 230. It is alleged that the implementationof the new policy hampers the
unfettered accessby prisoners to legal advice.
231. .Itwas further alleged that with the cessation.ofpolitical violencein
Northern Ireland,there was no justificationfor the United Kingdom
Government's continuing derogationfrom article 14 of the International
Covenant on Civil and PoliticalRights.
232. It was also alleged that the present situation in Northern Ireland did
vot justify the'adoptionof emergency laws.
233. With regard to the right to private legal consultationfor detainees,
it was alleged that the present practicein Northern Ireland contravened
article 14.3 (b) of the ICCPR and the United Nations Basic Principles on the
Role of Lawyers.
234. During his visit to Northern Ireland, which is referred to above in
, paragraph 13, the Special Rapporteur was informed that the number of arrests
under emergency laws in Northern Ireland had decreased dramatically sincethe
ceasefire of 1994. The sourcealso reported that the abuseof solicitorsby
certain police officersin CastlereaghHolding Centre had also diminished,but
only because fewer arrests had provided fewer opportunitiesto be abusive.
235. When people were detainedat Castlereagh, it wasreported that some
police officers of the CriminalInvestigationDivision (CID) continued to
question the professional integrityof their solicitors and to assume that the
solicitors were in sympathy with their client's affiliations and causes.
Death threats were still made against solicitorson occasion, and reference in
very derogatory terms was still made to the murdered lawyer Patrick Finucane.
236. On 11 January 1996, the United Kingdom Government extended the
Northern Ireland (Emergency Provisions) Act for a further two years. Under
this legislation suspects couldbe denied access to their lawyers for periods
up to 48 hours and could alwaysbe interviewedin the absence of their
lawyers. In such conditions, it was alleged thatpolice abuse of solicitors
could continue completely' unchecked. page 56
237. The Government did announceone minor reform, which was that silent video
recordingswould be made of police interrogations. While thismight help to
safeguard against actual physical abuse, theabsence of soundrecording could
not inhibit verbal abuseof both suspects and their lawyers.
238. InAugust 1995, as a result of reports made availableto him, the Special
Rapporteur requested aleading British lawyerto observe the proceedings in an
application for judicial review of certain prison rulesintroduced by theHome
Secretary. These rules were in connection with meetings in prison with the
prisoners designated as high risk. These rules also applied to lawyers
interviewing remand prisoners in sucp hrisons. The allegationmade to the
Special Rapporteurwas that implementationof these rules would affect
confidentiality ofcommunication betweensolicitor and client inviolation of
paragraph 8 of the Basic Principleson the Role of Lawyors.
I.-- 239. The High Court composedof two judges heard the application and on the
facts dismissed the sameapplication. The Special Rapporteurhas been told
1 that the applicants have appealedto the Court ofAppeal.
240. The Special Rapporteur is continuing tomonitor developmentsin
Northern Irelandand in that connectionappreciates the cooperation extended
to him by the British Irish Rights Watch and the Lawyers Committee forHuman
Rights in New York.
Uzbekistan
Information transmitted to the Government
241. On 29 ~ecember 1995 the Special Rapporteur senta joint appeal with the
Special Rapporteurs onextrajudicial, summaryor arbitrary executions,and
on the question of torture on behalf of a group of citizens of the Republic
of Korea, Un Dmitry, Lee Vladimir, Arutyunov Vitaly,and Tsoi Valery, who
were convicted of the crime of murder by the Samakand Regional Court.
According to the source,Mr. Un Dmitry had been sentencedto death, while
the other three defendants had been sentenced to 12 years' imprisonment.
242. According tothe source, it was alleged that all four defendantswere
I kept in cells without sanctionof the prosecutor formore than 10 days, in
violation of Uzbek law, and that all werebadly beaten to force a confession.
It was furtheralleged that the criminal caseagainst the defendants contained
false documents, including forged signatures of witnesses and lawyers,and
faked protocolsof interrogations. Further,it was alleged that the
investigator had denied the defendantt she minimum guaranteesof a fair trial,
includingthe right to have legal counselof one's own choosing and the right
to examine or have examinedthe witnesses againsthim and to obtain the
attendanceand examinationof witnesses on his behalf under the same
conditionsas witnesses against him, leadingto the suspicion that the Court
was not independent. It was alsoalleged that there was collusion between
the procurator and thetrial court. To datethe there has been no response
from the Government. page 57
Yemen
Informationtransmittedto the Government
243. On20 October 1995 theSpecialRapporteur advised the Government that he
had received information concerning advocate Abdel Aziz Ahmed El-Samawi, the
Secretary-General of the Yemen BarAssociation. Accordingto the source,
Mr. El-Samawiwas attackedand beaten while incourt defendinga case in the
city of Sana'a. The sourcealso reportedthat he wassubsequently accused of
apostasy. To datethere has beenno response from the Governmentof Yemen.
Zaire
Information transmitted to the Government
I.: 244. The SpecialRapporteur transmittea d communicationto the Government
on 27 October 1995concerning informatioh ne had receivedof an incidentwhich
( i had occurredin Haut-Zaireon 20 July1995. According to the source,
Mr. Lombeya Bosongo,Governorof Haut-Zaire,had made numerousverbal attacks
againstthe magistratesof the Balubatribe,which culminated in a violent
demonstrationon 20 July 1995. Duringthe courseof this demonstration,
organized byGovernorLombeya, the building of the tribunalde paix of Makiso
and the Court of Appeal were destroyed. Manyjudicialdocuments were also
destroyed andthe robes of the judgeswere burned. Also,the home of
Judge KabambaMbikayi of the Court of Appeal was ransacked during the
demonstrations. The source reported that no action had been taken againstthe
demonstrators. A commissionof inquiry hasbeen established,but its
composition had not been madepublic nor had it commenced its work. To date
there has been no response from the Government.
VI. CONCLUSIONS AND RECOMMENDATIONS
245. The attackson the independence of judgesand lawyersremain a serious
concern;none the less, the Special Rapporteur is pleasedto observethat
there is today a greaterawarenessof the importance ofjudicialindependence
for the maintenanceof therule of law and the protection ofhuman rights,not
just civil andpoliticalrightsbut economic, socialand cultural rightsas
well. The SpecialRapporteurviews this as a positivedevelopment which
shouldbe encouraged. In thatregard,a report from Morocco states that,
"reflectinga growing emphasison economic development ... expert.ssay the
focus ofdebates has shifted from lookingat ways to ensurethe independence
of the judiciaryto examininghow the rule of law can be usedas a tool to
provide a stableenvironmentfor investment."
246. The threatto judicial independencc eomes not just fromthe executivearm
of the Governmentnor fromthe legislature, but from organized crime, powerful
businessmen,corporategiants and multinationals. The conductof some within
the judiciaryand the legal profession can threaten their own or ea other's
independence. Hence the need for constant vigilance both within an wdthout.
247. The newly emerging democracies need particula artention. With meagre
resources, both financialand human, itwould be wrong to imposethe high
standardsexpectedof the more developednations. They need tobe advisedand page 58
made aware of those standardsand the need to achieve them,yet as an
immediate measure theyneed the basics. In some of these democracies
unqualified people are appointed to high judicial posts because of the lack of
trained human resources. Training programmes musttherefore be structuredto
meet these needs.
248. Without duplicating efforts by otheN rGOs involved in trial observation
programmes, theSpecial Rapporteur intends to observe certainspecific trials
of particular interestto his mandate, either personallyor through a
representative appointed by him. Fromis personal experiencethe Special
Rapporteur appreciates the importanco ef such a presence at trials, especially
when there are suspicionsthat such trials may not be fair for the reason that
the tribunal may not be independentand impartial and/orthat the independence
of the defence lawyers may beundermined.
I..- 249. The Special Rapporteur is conscious of the monumental tasksahead in the
realizationof his mandate. Heseeks the cooperation ofNGOs and other
organizationsto provide him with timely information on any attacks on the
independenceof judges and lawyersin their respectivecountries or
neighbouring countries due to the fact that the Special Rapporteurhas no
monitoring mechanismto gather such information.
250. In his first report the Special Rapporteum rade particular reference to
resource requirements. Resources stilr lemain inadequateand with the
increased financial crisis facedby the United Nations ingeneral and the
Centre for Human Rights inparticular anysuch further requests may be
inappropriate.
251. The Special Rapporteur calls upon all Governments to respond to his
interventions promptlyand in cases wheremissions are sought,the Special
Rapporteur again callson the Governments concernedto respond without delay
so as to enable him to organize his schedule in advance for the year. page 59
Appendix
1. The Special Rapporteur wishes to thank thereplies submitted by the
followingGovernmentsto his initial communication date1 d6 December1994:
Armenia;Austria; Belarus;Cameroon;Canada;Colombia; Cuba; Cyprus; Chile;
Egypt; Estonia;Ethiopia;Georgia;Germany;Iraq; Japan;Jordan; Kuwait;
LibyanArab Jamahiriya; Liechtenstein; Luxembourg; Malta; Mauritius; Mexico;
Morocco; Namibia;New Zealand;Poland;Saudi Arabia; Senegal; SlovakiaS ;yrian
Arab Republic; Sweden; Sri Lanka;Tunisia;Turkey.
2. The Special Rapporteur wishes to thankthe following courtsand judges
for their replies to his initial communication da1 teDecember1994: The
Honourable Justice RobiM nillhouseof the Australian Section of International
Associationof Judges; The Honourable Justice MichaK elrby AC CMG, President
,..- Court of Australia,Sir A.F. Mason; theChief Justiceof the Supreme Courtofigh
the Bahamas, Honourable Mr. Justice J.C. Gonsalves-Sabola the Union
( internationale des magistrates, Section belg the Chief Justiceof Grand
Cayman Islands, Honourable G.E. Harre; the SuperiorCourt ,of Quebec, the
Honourable Lawrence A. Poitras, Chief Justicet ;he Tax Courtof Canada, Office
of the Chief Justice;Federal Courtof Canada, theRt. Hon.Antonio Lamer,
Chief Justiceof Canada;CanadianJudicialCouncil,Ms. Jeannie Thomas,
Executive Director; the DanishAssociationof Judges,Mr. Bjarne Pederson;the
SupremeCourt of Finland; Bundesverfassungsgericht (Constitutional Court of
Germany),Der Direktor,Dr. Karl-Georg;the SupremeCourt of Ghana;the Chief
Justiceof Hong Kong, Directorof Administration,Mr. R.J.F. Hoare;Chief
Justiceof the SupremeCourt of HongKong, the Honorable Sir Ti Liang Yang;
JusticeM.K.N. Goyal of India; Constitutional Couro tf Italy, Secretary
General,Mr. Cesare Bronzini;Bailiff'sChambers, Royal Court House,
Sir GrahamDorey, Bailiffof Guernsey; Constitutional Cour of Lithuania,
Chairman,Mr. Jouzas ilys; SupremeCourt of Mongolia, Chief Justice
D. Dembereltseren; Supreme Cour of Netherlands, Chief JusticS ejoerdRoyer;
NetherlandsAssociationfor the Judiciary; Chief Justico ef New Zealand,
Sir Thomas Eichelbaum; Conseil constitutionn dulSenegal, President
Youssoupha Ndiaye; le Mediateurde la Republiquedu Senegal,
i I Slovenia; theAssociationof SlovakJudges, Judge and Executive Manager,
Dr. AnnamariaKatarinaBrunovsk6;High Courtof SolomonIslands, Chief Justice
John Muria; SupremeCourt of Sweden,Chief Justice Anders KnutssonS ;upreme
AdministrativeCourt of Sweden, President G. Wahlgren;SupremeCourt of
Uruguay, PresidentDr. Rat31 Alonso de Marco; theRoyal Court of Justiceof the
United Kingdom,The HonourableMr. Justice Phillips;the Bailiff'sChambers
Royal Court House, Jersey,Sir Peter Crill, C.B.E.;the Commonwealth
Secretariat,Legal and Consultation Affairs Division, Director R.H.F.Austin;
The Lord President, Parliamen House,Edinburgh; theChief Justiceof Zambia;
the Chief Justice ofZimbabwe, TheHonourableMr. JusticeA.R. Gubbay;the
Lord Chief Justice of England andWales, Lord Taylor.
3. The SpecialRapporteurwishes to thank the following Ombudsmen who
replied to his initial communicatid onted 16December1994: the Acting
Ombudsmanof Victoria,Australia,B.W. Perry; theOmbudsmanfor theNorthern
Territoryof Australia,Acting Ombudsman,T.J. Galloway; Ombudsman for the
LegislativeAssembly, Province of British Columbia, Canada, DulcieMcCallum;page 60
the Danish Ombudsman,Hans Gammeltoft-Hansen; the Parliamentary Ombudsmao nf
Finland, Mr. Jacob Soderman; Officeof the Ombudsmanof Guyana, S.Y.Mohamed;
the National Ombudsman of the Netherlands, Marten Oosting;the Parliamentary
Ombudsman of Norway,Mr. Arne Fliflet; the Investigator General(the Ombudsman
Institution of Zambia), JusticeF.N. Mumba; the Secretary forJustice, Legal
and ParliamentaryAffairs, Ombudsmanof Zimbabwe,Mrs. B. Chanetsa.
4. The Special Rapporteurwishes to thank the following universitiesfor
replying to his initial communicationdated 16 December 1994: Facultyof Law,
University of Chittagong, Bangladesh, Dr.M. Shah Alam, Dean; Facultyof Law,
University of the West Indies, Barbados, Dr. Albert K.'Fiadjoe, Dean; Faculty
of Law, University of Botswana, Bojosi Otlhogile, Dean; Departmentof Law,
Carleton University, ProfessorT. Brettel Dawson, Chair; Faculty of Law,
University of Ottawa, Sanda Rodgers, Dean; Instituteof Legal Science,
University of Copenhagen, Eva Smith, Professor of Law; University of
Hong Kong, Departmentof Law; Faculty of Law, Kurukshetra University, India,
Mr. S.K. Singh, Dean; Facultyof Law, Universityof Delhi, Mr. M.P. Singh;
Faculty of Law, Universityof Auckland, New Zealand, Professor Julie Maxton,
Deputy Dean; Faculty of Advocates of Scotland, AndrewR. Hardie, Q.C., Dean;
Faculty of Law, Universityof Dar es Salaam, Z.S. Gondwe, Dean; Council of
Legal Educationof Trinidad, Hugh Wooding Law School, Austin L. Davis,
Principal; Faculty of Law, Universityof Birmingham,Mr. Jeremy McBride;
Cambridge University, on behalf of the Chairman of the Faculty Board of Law,
Sir Derek Oulton, O.C., Ph. D.
5. The Special Rapporteur wishesto thank the followingBar Associations
that have repliedto his initial communicationdated 16 December 1994:
Finnish Bar Association, Pirkko Kivikari, Deputy Secretary the Bar
Association of India, Lalit Bhasin, General Secretary; American Bar
Association, VirginiaM. Russel, Director.
6. The Special Rapporteurwishes to thank the following associationsof
lawyers that have repliedto his initial communication dated16 December 1994:
International Associationof Young Lawyers, Stefano Dindo-Cinti,National
Vice-President for Italy;New Zealand Law Society, Austin Forbes, President;
National Lawyers Associationof Tunisia, Abdelwaheb El Behi, Bstonnier; Law
Society of Zimbabwe, W. Mapombere, Executive Director; Law Council of
Australia, National Councilof Lawyers, B.S. Virtue, Deputy Secretary-General.
7. The Special Rapporteurwishes to thank the followingNGOs which have been
assisting with his mandate: Amnesty InternationalA;rab Lawyers Union;Arab
Organization for Human Rights; Article XIX: International Centre Against
Censorship;Asociacibn para la Promoci6n Social Alternativa;Asociaci6n Pro
Derechos Humanos; AsociacibnPro Derechos Humanos Espafia;Bar Human Rights
Committee of England andWales; British Irish Rights Watch;Canadian Human
Rights Commission; Centrefor the Independence of Judgesand Lawyers;
Citizens' Network; CommonwealthSecretariat; Comisibn Andina de Juristas;
Comisibn Andinade Juristas, Sectional Colombians; Comisi6n para la Defensa de
10s Derechos Humanos en Centroamerica; Coordinador aacional de Derechos
Humanos; Egyptian Organizationfor Human Rights; Fondation pourle respect des
lois et des libertes; HumanRights Watch Helsinki; Human Rights Watch/Asia;
Human Rights in China; Inter-Church Committeeon Human Rights in
Latin America; InternationalAssociationAgainst Torture; InternationalCommission of Jurists; InternationalFederation of Human Rights; International
Law Group; Kashimir American Council;Lawyers Committeefor Human Rights;
Minority Rights Group International;National Societyfor Human Rights,
Republic of Namibia; Pat Finucane Centre - Towards Human Rights and Social
Change; PeaceBrigades International;Physicians for Human Rights;Tibet
Bureau, Human Rights Desk, Department of Information andInternational
Relations.
8. The Special Rapporteur also wishes to thank the Carter Center, Atlanta,
Georgia, andthe Center for Civiland Human Rights of Notre Dame University,
Indiana, UnitedStates of America, for having provided law clerks to assist
him. UNITED
NATIONS
Distr.
EconomicandSocial GENERAL
Council
18 February 1997
Original: ENGLISH
_.-
COMMISSIONON HUMAN RIGHTS
i i Fifty-third session
Item 8 of the provisional agenda
QUESTIONOF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED
TO ANY FORM OF DETENTIONOR IMPRISONMENT
Report of the Swecial Rapporteuron the independenceof
iudaes and lawvers.Mr. Param Cumaraswamv
CONTENTS
Paraaraphs Paae
Introduction ...................... 1- 2 4
I. TERMS OF REFERENCE ................ 3- 6 4
11. METHODSOFWORK. ................. 7 -. 8 7
111. ACTIVITIESOF THE SPECIALRAPPORTEUR ....... 9 - 35 7
A. Consultations ..............-. 10 - 11 7
C. Communicationswith Governments ....... 17 - 21 8
D. Cooperationwith intergovernmental and
non-governmentalorganizations ........ 22 - 23 9
E. Other United Nations proceduresand bodies . 24 - 31 9
1) F. Promotionalactivities ............
GE.97-10560 (E) CONTENTS (continued)
IV. THEORETLUAL ISSUES OF SPECIAL IMPORTANCE ....
A . The use of "faceless" tribunals .......
B . Conflicts betweenthe legal profession and
the judiciary ................
C . Establishmentof an internationalcriminal
court ....................
D . The media and the judiciary .........
E . Trial observation ..............
F . Beijing'statementof Principles onthe
Independenceof the Judiciaryin the LAWASIA
region ....................
V. COUNTRY SITUATIONS ................
Albania ...................
Algeria ...................
Argentina ...................
Australia ..................
Bahrain ...................
Belarus ...................
Belgium ...................
Bolivia ...................
Botswana ...................
Brazil ....................
Chile ....................
People'sRepublic of China ..........
Colombia ................... gage 3
CONTENTS (continued)
Cuba .....................
Djibouti ...................
Ecuador ...................
Guatemala ..................
India ....................
Indonesia ..................
Kazakstan ..................
Kuwait .....................
Malaysia ...................
Mexico ....................
Nigeria ...................
Pakistan ...................
Peru .....................
Philippines .................
Rwanda ....................
Tunisia ...................
Turkey ....................
United Kingdomof Great Britainand
Northern Ireland ...............
United States of America ...........
Uzbekistan ..................
VI . CONCLUSIONSAND RECOMMENDATIONS .......... Introduction
1. The present report is submitted pursuant to Commission on Human Rights
resolution 1996/34 of 19 April 1996. This report is the third annual report
to the Commission on Human Rightsby Mr. Param Cumaraswamy,since the mandate
was establishedby the Commission inits resolution 1994/41 of 4 March 1994
and endorsed by the Economic and Social Council in its decision 1994/251 of
22 July 1994. (See also E/CN.4/1995/39and E/CN.4/1996/57.)
'3
2. Chapter I of the present report contains the terms of reference for the
discharge of the mandate. ChapterI1 refers to the methods of work applied by
the Special Rapporteur in the discharge of the mandate. In chapter 111, the
Special Rapporteur presents an account of the activities undertaken within the
framework of his mandate in the past year. Chapter IV provides a brief
discussion on a number of theoreticalissues which the Special Rapporteur
considers to be important for the development ofan independent and impartial
judiciary. Chapter V contains brief summaries of urgent appeals and
communicationsto and from Governments,along with observationsof the Special
Rapporteur. Lastly, chapter VI contains the conclusionsand recommendations
of the Special Rapporteur.
I. TERMS OF REFERENCE
3. At its fiftiethsession, the Commissionon Human Rights, in
resolution 1994/41, noting both the increasing frequency of attacks on the
independenceof judges, lawyers and court officials andthe link which exists
between the weakening of safeguards for the judiciaryand lawyers and the
gravity a.ndfrequency of violations of human rights, requestedthe Chairman of
the Commission to appoint, for a period of three years, a special rapporteur
whose mandate would consistof the followingtasks:
(a) To inquire into any substantialallegationstransmitted to him or
her and report his or her conclusions thereon;
(b) To identifyand record not only attacks on the independenceof the
judiciary, lawyers and court officials butalso progress achieved in '
protecting and enhancing theirindependence, and make concrete recommendations
including the provision of advisory services or technicalassistancewhen they
were requested by the Stateconcerned;
(c) To study, for the purpose of making proposals, important and
topical questionsof principle with aview to protecting and enhancing the
independenceof the judiciary and lawyers.
4. In its resolution 1995/36 the Commission endorsed the decision of the
Special Rapporteur to use, beginning in 1995, the short title "Special
Rapporteur on the independenceof judges and lawyers".
5. In resolutions 1995136 and 1996/34, respectively,the Commission on
Human Rights tooknote of the first and second reportsof the Special
Rapporteur, expressing appreciationof his working methods, and requested him
to submit another report on the activities relating tohis mandate to the
Commission on Human Rights. 6. Severalresolutionsadoptedby the Commissionon Human Rightsat its
fifty-secondsessionare also pertinentto the mandate of Special
Rapporteur and have been taken intoconsiderationby him in examining and
analysing theinformationbroughtto his attention withregard to various
countries,in particular:
(a) Resolution 1996/20 on the rights of persons belonging to national
or ethnic, religious and linguistic minorities, in which the Commissionurged
special rapporteurs to continueto give due regard, within their respective
mandates,to the promotionand protectionof the rights of personsbelonging
to minorities,and invitedthem to continueto submit contributions as to how
they promotedand gave effect to the Declaration on the Rights of Persons
Belongingto Nationalor Ethnic,Religious and Linguistic Minorities;
(b) Resolution 1996/32 on human rightsin the administration of
-,.- justice,in particularof children and juvenilei sn detention,in which the
omm missi calledupon special rapporteurs to continue togive special
' 1 attention to questions relatin to the effective protection of humanrights in
the administration of justice and to provide specific recommendatio insthat
regard;
(c) Resolution 1996/43 on the protectionof human rights in the
context ofHTV and AIDS, inwhich theCommission urged the special rapporteurs
, to keep under reviewthe protectionof HIV-related human rights inrelationto
their respective mandates;
(d) Resolution 1996/46 on human rights and thematic procedures in
which the Commission invited the themati specialrapporteurs to include in
their reports informatiop nrovidedby Governmentson follow-upaction;
encouragedthose specialrapporteurs tomake recommendationsfor the avoidance
of humanrightsviolations; also encouraget dhem to follow closely the
progressmade by Governments;further encouraged them to continueclose
cooperation withrelevanttreaty.monitoring bodies and countryrapporteurs;
requested the thematic special rapporteurs to incli undtheir reports '
commentson the problemsof responsivenessand the resultof analyses;called
on them to includein their reports gender-disaggregatd edta and to address
the violationsunder their mandatesthat are directedagainst women; and
suggested thatthe special rapporteurs consider how they could make available
informationon the situationof individuals working foh ruman rights andhow
their protection could be enhanced;
(e) Resolution 1996/47 on human rightsand terrorism, inwhich the
Commissionurged all thematic special rapporteurt so addressas appropriate
the consequences of the acts,methodsand practicesof terroristgroups in
their forthcoming reports to the Commission;
(f) Resolution 1996/48 on the questionof integrating thehuman rights
of women throughoutthe United Nations system, in which the Commission
requested thatthe special rapporteurs regularly take a gender perspective
into accountin the implementationof their mandates; (g) Resolution 1996/49, on the eliminationof violence againstwomen,
in which the Commission requestedother special rapporteursto cooperatewith
and assist the Special Rapporteuron violence againstwomen;
(h) Resolution 1996/51 on human rights and mass exoduses, inwhich the
Commission invited the special rapporteurs, actingwithin their mandates, to
seek information, where appropriate,on problems resulting in mass exoduses of ,
populations or impeding their voluntary return home and, where appropriate,to
include such information,together withrecommendationsthereon, intheir
reports, and to bring such informationto the attention of the High
Commissioner for HumanRights for appropriateaction;
(i) Resolution 1996/53 on the right to freedom and expression,in
which the Commission invited thespecial rapporteurs to pay attention, within
the frameworkof their mandates, to the situation of persons detained,
subjected to violence, ill-treated or discriminated against for having
exercised the right to freedom of opinion and expression;
(j) Resolution 1996/55 on advisory services, technical cooperationand
the Voluntary Fund for TechnicalCooperationin the Field of Human Rights, in
which the Commission invited the special rapporteurs to continue to include in
their recommendations, wheneverappropriate, proposalsfor specificprojects
to be realized under the programme of advisory seniices and technical
cooperation in the field ofhuman rights;
(k) Resolution 1996/62 on hostage-taking,in which the Commission
urged all thematic special rapporteursto address, as appropriate,the
consequenxesof hostage-taking in their forthcomingreports to the Commission;
(1) Resolution 1996/69 on human rights in Cuba, in which the
Commission invitedthe thematic mechanismsto cooperate fully and exchange
information and findings on the situationof human rights in Cuba;
(m) Resolution 1996/78 on comprehensive implementation of and follow-
up to the Vienna Declaration andProgrammeof Action, in which the Commission
called upon all special rapporteurs totake fully into accountthe "
recommendationscontained inthe Vienna Declarationand Programmeof Action
within their respectivemandates;
(n) Resolution 1996/79 on the situation of human rights in Nigeria, in
which the Commissionrequested the two special rapporteurswho had rewested a
joint investigative visit to the country (the Special Rapporteur onthe
independence of judges and lawyers and the SpecialRapporteur on
extrajudicial,summary or arbitrary executions)to submit to the Commission at
its fifty-third sessiona joint report on their findings, along with any
observations of other relevant mechanisms,and requested them to submit an
interim report tothe General Assembly;
(0) Resolution 1996/85 on the rights of the child, in which the
Commission recommendedthat special rapporteurspay special attention to
particular situations in which childrenwere in danger; page 7
11. METHODS OF WORK
7. The Special Rapporteur, inthe thirdyear of his mandate,continued
following themethods of work describedin the first report of his tenure
(E/CN.4/1995/39,paras. 63-93).
8. Seeking to avoid unnecessaryduplication ofthe activitiesof other
thematic rapporteurs,the SpecialRapporteurhas been involved inseveral
cooperativeinitiatives. Duringthe past year, he has joinedwith other
Special Rapporteursand working groupsto transmiturgent appeals onbehalf of
individuals tothe Governmentsof the followingcountries: Bolivia, together
with the Working Group on Arbitrary Detentionon 25 March 1996; Mexico,
together.withthe Special Rapporteuron extrajudicial,summaryor arbitrary
executionson 14 August 1996; Pakistan,jointly withthe Special Rapporteurs
on extrajudicial, summaryor arbitrary executions and on the questionof
torture on 16 July 1996.
111. ACTIVITIESOF THE SPECIALRAPPORTEUR
9. The following sectionsgive an accountof the activitiescarriedout by
the Special Rapporteurin the implementationof the mandate entrustedto him
by the omm mis sioHnman Rights.
A. Consultations
10. The Special Rapporteur visited Geneva forhis first round of
consultations from1 to 5 April 1996 and in order topresenthis report to the
Commissionat its fifty-secondsession. During this period the Special
Rapporteur metwith representativesof the Latin American,Asian,
Eastern Europe and WesternEuropeanand Other regionalgroups to briefthem on
his work as SpecialRapporteur and to answer any questionsthey might have.
He also held consultationswith representatives of the Governmentsof Albania,
Belgium, Chinaand Peru and met with a representativeof the Mexican
Commission forHuman Rights. In additionhe held a briefingfor interested
nori-governmentaolrganizations.
11. The Special Rapporteur visited Geneva for his secondround of
consultations from 27 to 31 May 1996 forthe third meeting of special
rapporteurs/representatives/experts and chairmenof working groups of the
special proceduresof the Commissionon Human Rightsand of the advisory
services programme,which was held from 28to 30May. During thisperiod,the
Special Rapporteurheld consultations with representative of the Government
of Belgium, China,Colombia,India and Nigeria.
12. During 1996, the Special Rapporteur undertook a missio to Peru and
Colombia,as a follow-upto concernsexpressedin his 1996 reportwith regard
to the situationof the judiciaryin those two countries.He visited Peru
from 9 to 15September 1996and Colombia immediately after, from 15 to
17 September1996. 13. In its resolution1996/79,the Commissionrequestedthe Special
Rapporteur andthe Special Rapporteur on extrajudicial, summary or arbitrary
executionswho had requesteda joint investigative mission to Nigeriato
submit to it at its fifty-thirdsessiona jointreport on theirfindings and
to submit an interimreportto the GeneralAssembly.
14. Accordingly, thetwo SpecialRapporteurssubmitted aninterimreport
(A/51/538)to the GeneralAssembly on18 November1996 and afinal reportto
the Conmissionat its fifty-third session (E/CN.4/1997/62),althoughthe
submissionsof both reportswere withoutthe benefit of a joint investigative
mission. In the eventthat the Special Rapporteurs are able to carry out a
fact-finding mission to Nigeriaprior to the fifty-third sessioo nf the
Commission,it is their intentionto issue amission report.
15. During the period under review,the SpecialRapporteurinformedthe
Governmentsof the followingcountriesof his wish tocarry out an in situ
investigation: Cuba, Kazakstan,Pakistan, Turkey and Uzbekistan.
i
16. During hisvisit to New York for the presentationof the interim report
to the General Assemblyon the situationof human rights in Nigeria,the
Special Rapporteur alsoheld consultations wito hfficialsof the
United NationsDevelopmentProgranme(UNDP)in New York and travelledto
,Washington,D.C. to meet with representativeo sf the World Bank,USAID, the
Inter-AmericanJuridicalCommittee,the InternationalHuman Rights Law Group
and the American Society of International Law.While in Washington, D.C. the
Special Rapporteur also visitedChiefJusticeWilliam Rehnquistof the Supreme
Court of the United States of America.
C. Communications with Governments
17. During the period under review, theSpecial Rapporteur
transmitted21 urgent appeals tothe Governmentsof the following
16 countries: Algeria, Bahrain(Z),Belarus, Belgium, Botswana, Colombia (2),
India, Indonesia,Malaysia, Mexico, PakistanP ,eru (Z),Tunisia,Turkey (2),
the United States of America (2) and Uzbekistan. The SpecialRapporteur
transmitted threejoint urgent appeals to the Governmentsof the follbwing
three countries: Bolivia (jointlwith the WorkingGroup on Arbitrary
Detention),Djibouti (jointly with the SpecialRapporteuron extrajudicial,
smary or arbitraryexecutions)and Mexico (jointly with the Special
Rapporteuron extrajudicial, summary or arbitraryexecutions).
18. The SpecialRapporteurtransmitted17 communicationsto the Governments
of the following14 countries: Argentina,ustralia,Bahrain (2),Bolivia,
Botswana, Brazil,CGte d'Ivoire,Cuba (2),India (2),Malaysia,Mexico,
Pakistan,Peru and Tunisia.
19. The Special Rapporteur transmitted one communication jointly wt iteh
Special Rapporteuron extrajudicial, summary or arbitraryexecutionsand the
Special Rapporteuron the questionof tortureto the Governmentof Pakistan. 20. The Special Rapporteur received repliesto urgent appealsfrom the
Governmentsof the following 11countries: Algeria, Bahrain,Belgium,
Botswana,Indonesia,Mexico, Pakistan,Tunisia, Turkey (2),United Statesof
America andUzbekistan.
21. Replies to joint urgent appealw sere received from the Governmentsof
the People'sRepublic of China and Mexico. Replies to communicationswere
receivedfrom the Governmentsof Australia,Bahrain (2),Brazil, Cuba,
India (2),Malaysia, Peruand Tunisia. Other communications were received
from the~overnmentsof the following eight countries: Bahrain, BurkinaFaso,
India,Kazakstan, Mexico, Peru(2),Tunisia (2)and Uzbekistan.
CoorJerationwith interaovernmental and non-aovernmenta oraanizations
1. World Bank
22. The Special Rapporteurundertook avisit to Washingtonto discussin
1 ) detail the programmes relatingto judicialreform fundedby the World Bank.
In this regard, the Special Rapporteur raised the questioo nf possible funding
for the preparation ofa training manual for judges and lawyers,and submitted
a budget forthis project. The representativesof the World Bankwith whom
the SpecialRapporteurmet, while appreciating the importanceof this
project, indicated possible constraintson the World Bank fundingprojectsof
internationalorganizations,such as the United Nations.
23. The SpecialRapporteuralso discussedways and means of enhancing
cooperation.onprojects financedby the World Bank for the administration of
justicein Member States, in particularrelating to judicial reform.
E. Other United Nationsprocedure;and bodies
1. Coo~erationwith specialra~~orteursand workina aroups
of the Commissionon Human Riahts
24. In addition tothe Special Rapporteur's participatioi nn the special
rapporteurs'meeting and injoint urgent actions transmitted to Governments,
in 1996 the Special Rapporteurrequested toundertakea jointmissionto
Nigeriawith the Special Rapporteuron extrajudicial, summary or arbitrary
executions. As referredto above, pursuantto resolution1996/79of the
Commissionon Human Rights,the SpecialRapporteurs jointly followed uo pn
their request, originallymade in November1995, to visit Nigeria.
25. With regard to the Special Rapporteur's request,dating from1995 (see
E/CN.4/1996/37)to visit Peru jointlywith the Working Groupon Arbitrary
Detention, theSpecial Rapporteur wishes to inform the Commissionthat in view
of the fact that the Working Group on ArbitraryDetentiondecided to undertake
a mission at alater stage, he preferredto undertakethe mission in
combinationwith his mission to Colombia. page 10
2. Coo~eration with the Crime Preventionand Criminal
Justice Branch
26. In his second report (ElCN.4/1996/37, para. 59), the Special Rapportellr
referred to the important work of the Crime Prevention and Criminal Justice
Division of the Secretariat in overseeingthe implementationof the Basic
Principles on the Independenceof the Judiciaryand the need for the Special
Rapporteur to work closely with that Division.
27. The Special Rapporteur attended thefifth session of the Commission on
Crime Prevention and Criminal Justice, held from21 to 31 May 1996 in Vienna.
Of particular interest tothe Special Rapporteurwas item 7 of the agenda in
reference to the discussion on the status of implementationof the Basic
Principles. Also of interest to the Special Rapporteurwas the work of the
Division in ascertaining the extentof the use and applicationof the Basic.
principles on the Independenceof the Judiciaryby Member States pursuant to
Economic and Social Council resolution1993/34,section 111, of 27 July 1993.
i 1 For that purpose a questionnaire, duly endorsedby the Council in its
resolution 1994/18 of 25 July 1994, was sentto all Member States and
non-governmental organizationsthrough the InternationalBar Association.
28. The Special Rapporteurnotes with regret that only 65 Member States
replied to the questionnaire,as well as 4 non-governmental organizations.
The findings of the Division from these repliesare of special importance to
the Special Rapporteur. He repeats hereunderthe five paragraphs from the
conclusions of the report submittedby the Division (E/CN.15/1996/16/Add.4).
"73. According to the information received, the Basic Principles enjoy
respect in most countries. Thereappear tobe only a few countries
still needing to improve fundamental guarantees which would ensurethe
independence of the judiciary in allits aspects.
"74. Further, as illustratedby the breadthand depth of the responses
received, the principle of the independenceof the judiciary is of
central concern to many States. Judging from the responses, a large
number of States were undertaking significant efforts to ensure'the use
and application of the Basic Principles intheir national law and
practice. Differences in legal tradition,however, particularly between
common law and civil law countries,seem to suggest different approaches
to the subject of judicial independence.That should be kept in mind
when providing technical assistance.
"75. As has been pointed out, the promotion andprotection of judicial
independence requiresan ongoing commitmenton the part of all States.
No mat'terhow well established the independence of the judiciarymay be,
constant vigilance and international cooperation are necessary to ensure
continuing respect for judicial independence.
"76. The Commission may wish to discuss further ways and means of
assisting States, upon request,in the enhanced use and application.of
the Basic Principles. The suggestions made by the Special Rapporteur,
as well as the proposals agreedupon by the Meeting of Experts for the
Evaluation of Implementationof United Nations Norms and Guidelines in Crime Preventionand CriminalJustice,held at Vienna from 14 to
16 October 1991 (E/CN.15/1992/4/Add.4) could provide usefulindications
to the Commission.
"77. Further,the Proceduresfor the Effective Implementation of the
Basic Principleson the Independenceof the Judiciary,as adopted bythe
council in its resolution1989/60of 24 May 1989, offer additional
guidance. The Proceduresspecify,interalia, that States shall ensure
that the Basic Principlesare widelypublicizedin at least the main or
officiallanguage or languagesof each State. In particular, States
shall make thetext of the Basic Principles availableto all members of
the judiciary (Procedure4). Inaddition,States shall encourage
seminarsand courses at the nationaland regionallevels on the role of
the judiciaryin society and the necessity for its implementation
(Procedure 6), which shall also be promotedby the United Nations
(Procedure11 d). Accordingto Procedure14, the Commissionshall
identifyexisting obstaclesto, or shortcomingsin, the implementation
of the Basic Principlesand the reasons for those obstaclesor
shortcomings, makingspecific recommendationsa ,s appropriate,to the
General Assemblyand the Council,and to any other relevant
United Nations human rightsbodies."
29. The Special Rapporteurwill continueliaising withthe CrimePrevention
and CriminalJustice Divisionand work closely with it towards greater
disseminationof the Basic Principleson the Independenceof the Judiciary,
and theirapplication byMember States. The Special Rapporteurnotes that the
Divisionanticipatesundertaking asimilarsurvey on the implementationof the
Basic Principleson the Role of Lawyersand of the Guidelineson the Role of
Prosecutors.
3. UNDP
30. As mentioned above, the Special Rapporteur met with officialsof UNDP in
New York on 19 November 1996to establisha mode of cooperationwith respect
to the work of UNDP in assistingin the reformand development ofinstitutions
relating tothe administrationof justice. The Special Rapporteur learned
that UNDP is very much decentralizedand that its office in New York does not
controlprojectsundertaken byfieldofficesin the 134 countriesin which
UNDP is located. However, theofficialsassured theSpecial Rapporteurthat
they wouldinform him of generalUNDP policymatters affectingthe
administrationof justice.
4. Cooperationwith theActivities andProarmes Branch
of the Centre for Human Riahts
31. In his second report, the SpecialRapporteurwelcomed the effortsby the
AdvisoryServices, TechnicalAssistance andInformationBranch of the Centre
for HumanRights to develop a trainingmanual for judges and lawyers
I (E/CN.4/1996/37,para. 61). The SpecialRapporteuris currentlycollaborating
with the Activities andProgrammesBranch of the Centre in the draftingof
I this manual, which isbeing developedin the context of the United Nations
Decade for Human Rights Programme. Followingthe completionof the draft
I manual, a meeting of expertswill be convenedsometimein May 1997 to consider page 12
the draft and it is expectedthat the manual will be ready for use by the end
of the year. The SpecialRapporteurexpects this manual,which will contain
relevantinternationalstandards,to beinvaluable in training programmf esr
judgesand lawyers throughoutthe world.
F. Promotionalactivities
32. As part of his mandateto promotethe importance of the independenceof
the judiciaryand the legal professionfor respectfor the ruleof law in a
democraticsociety,in the spiritof the ViennaDeclarationand Programmeof
Action, the Special Rapporteu accepted several invitationsto addresslegal
forums, seminarsand conferences including the following:
(a) On 22 March 1996, at the invitation of the International
Commissionof Jurists,he addressedthe Tenth InternationalCommissionof
Jurists Workshopon NGO participationin the AfricanCommissionon Human and
Peoples' Rightsin Ouagadougou, BurkinaFaso;
i i
(b) In Lima on 9 Septemberin conjunction with his missionto Peru,
the Special Rapporteur addresse the openingsessionof the Andean Regional
Conferenceof Judges andLawyers. The themeof the Special Rapporteur's
address was "Securing judicia independence"; .
(c) In Bangkok,on 27 August,at the invitation of the Asian Institute
for Development Communicationt ,he Special Rapporteur addressedparticipants
from the Asian regionat a seminaron "themedia andthe role of an
independentjudiciaryin a democracy" onthe subject of "Securina gn
independentjudiciary - regionaland international norms";
(d) In Berlin, in conjunctionwith the BiennialConferenceof the
International Bar Association (IBA),on 19October,he addressedparti,cipants
on the subjectof "Independenceof the judiciary and the roleof the Special
Rapporteur". The seminarwas organizedby the newly formedIBA HumanRights
Institute;
(e) In conjunction withthe same BiennialConference,at the '
I invitationof the Judges Forum of the IBA, on 22 October,the Special
Rapporteuraddressedjudges from allover the worldon "The dimensionsof
judicialindependenceand the role of the SpecialRapporteur";
(f) In Colombo, SriLanka,on 14 December, atthe invitationof the
Sri Lanka Bar Association,the Special Rapporteud relivered a keynote address
at the openingsessionof a seminarentitled "Towards realizationof human
rightsthrough a justrule of law",organizedby the Bar Associationjointly
with the IBA Human Rights Institute. This seminarwas openedwith an address
by the Chief Justiceof Sri Lanka. Followinghis address,the Special
Rapporteurwas interviewedby journalists on thi essue of judicial
independenceand, in particular,on judicialappointments. The interviews
were givenwide coverage bythe Sri Lankannewspapers.
33. It is learnt thatthe speeches madeby the SpecialRapporteuron these
occasionswill be publishedby the organizersof these conferencesin
newslettersand periodicals for wided rissemination. page 13
34. The Special Rapporteur expresseshis regret that, owing to time
constraints, he could not accept various other invitationsfrom the legal
community.
IV. THEORETICAL ISSUES OF SPECIAL IMPORTANCE
A. The use of 'facelessN tribunals
35. In his second report to the Commission on Human Rights, the Special
Rapporteur considered the information he had received on the extensiveuse of
"faceless"judges and secret witnesses as a means of protecting the judiciary
from acts of terrorism (seeE/CN.4/1996/37, paras. 66-78). The issue is of
particular concern to the Working Group on Arbitrary Detention. It was also a
subject of concern reported on in the joint report of the Special Rapporteurs
on the question of torture and on extrajudicial, summary or arbitrary
executionson their mission to Colombia from 17 to 26 October 1994
(E/CN.4/1995/111,paras. 14 and 85).
0
36. On making his preliminary observationson this issue, the Special
Rapporteur said, inter alia:
"The Special Rapporteur is of the view that such special
procedures violate the independence and impartialityof the justice
system for a variety of reasons. The Special Rapporteur is, however,
mindful of the need to protect the security of individual judgesin
terrorist-relatedcases. However, this issue requires further study and
analysis. During the course of the coming year the Special Rapporteur
hopes to carry out a mission to Peru and Colombia to investigatethese
practices in situ and to do a more exhaustive survey worldwide of
similar practices before stating his final conclusions and
recommendations." (E/CN.4/1996/37,para. 78.)
37. It was in that context thatthe Special Rapporteur undertook a
mission to Peru from 9 to 15 September 1996, and a mission to Colombia
from 16 to 27 September 1996 at the invitation of the respective Governments.
The informationand materials the Special Rapporteur received in theecourse of
the missions went beyond the issue of the use of "faceless" judges in the two
countries. But such information and materials were mostpertinent to the
mandate of the Special Rapporteur.
38. The Special Rapporteur noted the constitutionalchanges in the two
countries and the related complexities of the transitional process. In Peru
this transitional process included the institutionalreform of the
administrationof justice, which was in progress. He has learnt that progress
on these reforms has been suspended following the hostagetaking by the
RevolutionaryMovement of Tupac Amaru in the residence of the Ambassador of
Japan in Lima 17 December 1996, and at the time of finalizing of the present
report 72 hostages are still confined in the residence.
39. At the conclusion of his mission to Peru, the Special Rapporteur met the
media and issued a statement on his.'preliminary observations, among them a
call for the abolition of the "faceless" tribunals. In that regard, he said:page 14
"There is no doubt that the 'faceless'tribunals triedmany cases
without observingthe rules of due process. Owing to this serious flaw,
several innocent people werewrongly convictedand sentenced. The very
purpose of the drlenrocess procedure enshrined in the Constitution of
Peru and international instruments is to see that only the guilty are
convicted and punished.
These tribunals shouldno longer be continued. They should be
abolished forthwith. All pending cases shouldbe transferred to be
tried by the ordinary courts.
In any event, in the light of the considerable improvement.in the
security situation,there is no longer any justificationto continue
with these tribunals.
Further, amidst bold measures to reform the administrationof
justice and enhance respect for human rights, the continuation of these
tribunals makes a mockeryof the reforms."
40. From the materials given to him during the mission on this issue, it was
also clear that these tribunals no longerprotectedthe security of judges,
prosecutors and witnesses. Further, there had already been an admission from
the Government that several innocent peoplehad been convicted by these
tribunals, as a result of which the Government of Peru set up the Ad Hoc
Commission on Pardons to evaluate thosecases of miscarriage of justice and to
advise the President to pardon thosewrongly convictedand sentenced. Forall
th,esereasons, the Special Rapporteuris convincedat this stage that these
tribunals should be abolished forthwith.
41.. While in Colombia, the SpecialRapporteursought extensive information .
from the Ministry of Justice, among others. This informationwas received by
the Special Rapporteur on14 January 1997. The SpecialRapporteur also had
discussions with representativesof the Ministry of Foreign Affairs over the
then ongoing discussions between the Government of Colombia and the
High Commissioner for HumanRights to set up a United Nations mechanism in
Colombia to monitor human rights violations in the country. The Special
Rapporteur is pleased to note that agreement hasbeen reached between the
Government and theHigh Commissioner. Currently,the structure of the
mechanism is being worked out. The Special Rapporteurconsiders that this
mechanism would be auseful means of receivingand disseminating information
in Colombia on matters pertaining tohis mandate.
42. In the light of the complexities anddevelopmentsin the two countries,
outlined above, the Special Rapporteurconsidersthat he wlsuldneed more time
to evaluate and analyse the materials he receivedbefore he finalizes separate
reports on each of the countries.
43. On the particular issue of the use of "faceless"judges in dealing with
terrorist related offences, and as indicated inhis second report, the Special
Rapporteur is seeking resources, both human and financial, to make an page 15
exhaustive survey worldwideof similar practices inprocedures dealing with
terrorist relatedoffences. Such a study could provide information which
would be of use in determining whetherthe prevailing standards are sufficient
to'deal with such crimes.
B. Conflicts between theleaal ~rofessionand the iudiciarv
44. In presenting his second report to the Commission on Human ~ikhts at its
fifty-secondsession, the Special Rapporteur spoke of the interest of the
InternationalBar Association inworking closely with him to develop a
mechanism to resolve disputesbetween the judiciary and bar associations
Member States. The Special Rapporteuris still in the process of negotiating
with IBA on the structure of such a mechanism, bearingin mind that IBA is a
non-governmental organization.
C. Establishment of an internationalcriminal court
45. The Special Rapporteur appreciates the continuing work being undertaken
by all concerned for the establishnient of an international criminalcourt. In
his second report, the Special Rapporteur referredto article 10 of the draft
statute, which provided for the independenceof the court and called for
strict implementationof that article when the statute was adopted and the
court established (E/CN.4/1996/37,para. 80). The Special Rapporteur referred
to the possibilitythat, in the beginning after the court is established,
j~dges may not be full-time with fixed remuneration. He expressed the
importance of ensuring that judges are full-timemembers of the court with
fixed remunerationas soon as possible, in order to secure the individual
independence of its members.
46. The Special Rapporteur's. attention has beendrawn to the current draft
statute which provides thatonly States parties to the statute or the
Security Council may initiate investigationsof a crime under the court's
jurisdiction. It is,,feltthat the denial of the right of the prosecutor to
initiate investigations could seriously impede the independence of the court.
The Special Rapporteuris considering interveningwith his views on this
matter.
D. The media and the iudiciarv
47. Since raising the matter of the media and the judiciary in his second
report (E/CN.4/1996/37,paras. 83-85), the special' Rapporteur had discussions
with the International Commissionof Jurists and the Special Rapporteuron the
question of freedom of opinion and expression. No programme has yet been
formalized,but the Special Rapporteur will pursue this matter in the coming
months, subject to the availability of resources.
Trial observation
48. The Special Rapporteurhas been investigatingthe possibility of himself
or a representative observing importanttrials. During conversationswith a
representativeof one State.(the People's ~e~ublicof China), he was informed
that there were express prohibitionsin that State's national.legislationthat page 16
might be an obstacle to the undertaking of such activities. TheSpecial
Rapporteur is, however, pursuing the feasibilityof trial observations.
F. Beiiina Statement of Principles onthe Inde~endence
of the Judiciary in the LAWASIA reaion
49. The Special Rapporteur in his promotionalactivities,particularlyin
the LAWASIA (LawAssociation of Asia and the Pacific) region, has been making
reference to these principlesto develop greaterawareness (see
E/CN.4/1996/37,paras. 86-91). In his letters of interventionin the LAWASIA
region he draws the attention of Governmentsto specific principlescontained
in this Statement.
V. COUNTRY SITUATIONS
50. This chapter containsbrief summaries of the urgent appealsand
communications transmittedto Governments,as well as replies received from
( 1 the Governments to allegations. In addition, the Special Rapporteur takes
note in this chapter of the activitiesof othermechanisms which are related
to his mandate. Where he has deemed it necessary, the Special Rapporteur has
included his own observations. He wishes to emphasize thatappeals and
communications reflectedin this chapter are based exclusivelyupon
information that has been transmitted tohim directly. Further, he deeply
regrets that lack of sufficient humanresourceshas prevented him from acting
upon all of the information transmittedto him duringthe past year, and he
apologizes to the organizations which haveprovided himwith well documented
and researched reportson particular situations. The Special Rapporteur also
recognizes that problems concerningthe independenceand impartiality ofthe
judiciary are not confined to countries mentioned in this chapter. Itnhis
regard, he wishes to emphasizethat the omissionof a particular countryfrom
this chapter should not be interpretedas indicating that the Special
Rapporteur considersthat there are no problems with the judiciary inthat
country.
51. In preparing the present report, the Special Rapporteur took note of
those drawn up by his colleagues, Mr. Paulo SCrgio Pinheiro, Special'
Rapporteur on the situation of human rights in Burundi (A/51/459,paras. 51-54
and E/CN.4/1997/12,paras. 27-32); Mr. Thomas Hammarberg,Special
Representative of the Secretary-Generalon the situation of human rightsin
Cambodia (E/CN.4/1997/85,paras. 61-80); Mrs. Elisabeth Rehn, Special
Rapporteur on the situation of human rights in the Former Yugoslavia '
(E/CN.4/1997/56,paras. 32-36, para. 56 (Bosnia and Herzegovina),paras. 88-90
(Croatia));Mrs. Monica Pinto, independent expert onthe situationof human
rights in Guatemala (~/~~.4/1997/90, paras. 17-36); Mr. Adama Dieng,
independent expert on the human rights situ'ationin Haiti (E/CN.4/1997/89,
paras. 33-78); Mr. Rajsmoor Lallah, Special Rapporteuron the situation of
human rights in Myanmar (E/CN.4/1997/64,paras. 28-30); and
Mr. RenC Degni-SCgui, Special Rapporteuron the situationof human rights in
Rwanda (E/CN.4/1997/61,paras. 95-98). Albania
52. In his 1996 report to the Commissionon Human Rights, the Special
Rapporteurreported on allegationsthat hehad transmittedto the Government
and the response to those allegationsprovidedby the Government
(E/CN.4/1996/37,paras. 104-114). Of particularconcernwas the allegation
that the executivehad initiatedaction in Parliamentto strip the Chairmanof
the Courtof Cassationof his immunity. The Governmenthad respondedthat the
removalof the immunityof the Chairmanand the approvalof penal proceedings
againsthim had been made in accordancewith article 6of Law No. 7561 dated
29 April 1992.
53. The Special Rapporteur hassubsequentlylearnedthat the Chairmanhas in
fact been dismissedfrom the Court of Cassationand that the Constitutional
Court ruledon 14 February1996 that the dismissal was legab lecausethe
Chairmanhad committeda seriouscriminaloffence. The ConstitutionalCourt
held that the unconstitutionalityof the Chairman'sactions,specifically,
suspendirigthe executionof certaindecisions, was sufficient to constitutea
serious criminaloffence.
54. The Special Rapporteur notes thatno criminalcharges werebrought
against theChairman. Further, suspending theexecutionof certain decisions
would appear tofall within the normalduties of an appellatecourt and
certainlycannot be considereda criminaloffense. Non-governmentalsources
claim that the Chairmanwas removedin order to subordinate the Courtto the
executive,and that the Government falsified the parliamentary voteto do so.
55. The SpecialRapporteurwelcomes reportsthat theParliamentpassed a law
in July 1996 to establisha governmentsubsidizedmagistrate'sschool,to
assure the professionaltraining ofjudgesand prosecutors. It,will
reportedlyinclude in its programme mandatory initial trainingof candidates
for magistratepositions,as well as the continuingeducationof magistrates.
Alseria
56. On 7 August 1996, the Special Rapporteurtransmitted in urgentappeal to
the Governmentof Algeria regarding Rachid Mesli, a lawyer and human rights
defender,who was reportedly abducted by four unknown individualson
31 July 1996. It was fearedthat he had been abducted by membersof the
securityforces for reasonsrelated to his active involvement as a lawyer in
human rights issues.
57. The Governmentinformedthe SpecialRapporteuron 28 August 1996, that
RachidMesli had not been abducted,but that he hadbeen interrogatedon
31 July 1996 by security forcesin the contextof cases relatingto terrorism
and subversion. In addition,he had been officiallyaccused,jointlywith a
group of persons suspectedof having been involvedin terrorist activities,
and had been put in preventive detentionby the competentauthorities. The
preliminary investigationhad been carried outin accordancewith the law. page 18
Araentina
58. On 10 June 1996, the Special Rapporteursent a communicationto the
Government of Argentina, acknowledging receiptof the Government's
communication of 13 December 1995with regard to the case of a lawyer,
Leon Zimmerman, which he had transmittedto the Government in 1995
(see E/CN.4/1996/37paras. 115-116). The Special Rapporteur welcomed the
release of Mr. Zimmerman, but requested additionalinformationwith regard to
the status of Judge Elicabe Gonzales,who had reportedly been removed from the
case.
59. At the time the present report was finalized,no reply had been received
from the Government of Argentina.
60. In addition, the Special Rapporteur wouldlike to refer to the reportof
the Special Rapporteuron extrajudicial,summary or arbitrary executions in
relation to the case of a lawyer, FredericoAlberto Hubert, who reportedly has
i 1 continuously been threatened andintimidatedwhile working on the case of
Diego Rodriguez Laguenz, who died while in police detention in 1994 (see
E/CN.4/1997/60/Add.l1paras. 22-23 ).
Australia
State of Victoria
61. In his second report, the Special Rapporteurdrew the attention of the
Commission on Human Rights to proposalsby the State Government of Victoria in
Australia for the reform of the legal profession inthat state
(E/CN.4/1996/37,paras. 118-124). Proposalsfor a draft legal practice bill
to replace the Legal Practice Act of 1958 had been released by the
Attorney General in December 1995 for public coment. Of concern to the Law
Institute of Victoria, a statutorybody and the professional andregulatory
organization forsolicitors, was the proposal to set up a separateregulatory
body to license lawyers to practice. The Institute felt that sucha separate
body would affect the independenceof the professionin the state.
I ' 62. The Special Rapporteurexpressed the opinion that the proposals had the
effect of doing away with a single organization forlawyers, such as the Law
Institute was, and thus, fragment thelegal profession, resultingin the
formation of pockets of associations.
63. The Special Rapporteurhas since received information from the Law
Institute of Victoria. The draft bill,after much analysis, debate and
negotiation,was enacted into law and came into effect on 1 January 1997. The
Act provides for a separate Legal Practice Board. The Board consists of a
retired judge of the Supreme Court of Victoria, three lawyers chosenby the
Law Institute and the Victoria Bar Council, and three lay persons chosenby
the Government. Althoughthe Law Institute andthe Victoria Bar Council are
at present accreditedby the Legal PracticeBoard as recognized "professional
associations", other legalprofessionalassociationsmay seek accreditation.
Thus, it is now possible for the legal profession in the State of Victoria to
be fragmented and its unity may be adversely affected. 64. In his secondreport,the Special Rapporteur referre,dto action
initiated by 9 ofethe 11 judgesof the AccidentCompensationTribunal who
allegedthat they had been dismissed withou alternativeappointmentsor
compensationby the State Government following the repeal of the legislation
that had created theTribunal. The SpecialRapporteur expressed his interest
in observingthe proceedingspersonally orto send a representative,
(E/CN.4/1996/37,paras. 125-126). Of interestto the Special Rapporteurin
this particular action was the issueof securityof tenure of judges of the
subordinate courts and statutor tribunals.
65. The Special Rapporteurreceivedinformationthat the hearingwas to take
place fortwo weeks from 2December 1996before the Federal Court in Victoria.
However,on 2.December1996, the nine judgessettled the claimwith the State
Governmentfor an undisclosed sum.
....
Bahrain
11 Communication to the Government
66. On 25 March 1996, the Special Rapporteur transmittedan urgent appeal to
the Governmentof the State of Bahrain, concernint ghe alleged detentionof a
lawyer,Ahmad al-Shamlan. He was reportedlyarrestedby members of the
BahrainiState Intelligence Service under the 1974Decree Law on State
SecurityMeasures, whichpermitsdetentionwithout charge or trial forup to
threeyears of any person suspectedof being a threat to state security. The
source furthermore alleged that Mr. al-Shamlanhad been detained becauseof
his prominentrole in the pro-democracy movement in Bahrain and because hehad
acted as defence lawyerfor many prisonerswho were reportedlyprosecutedin
connectionwith politicalprotests. It was thereforefeared that
Mr. al-Shamlan wasbeing harassed fop carryingout his professionalduties and
exercisinghis right to freedomof apinionand expression.
67. On 17 May 1996, the SpecialRapporteursent a letter to the Government
in which he referred tothe Government'scommunicationof 17 April 1996 (see
para. 70 below),concerningthe arrestand detentionof Mr. al-Shamlan. The
SpecialRapporteururged the Governmentto inform the lawyer promptlyof the
criminal chargesbrought againsthim and to bring him before a judge or other
officer authorized by law and, if no such chargeswere brought against himto
releasehim immediately.
68. On 16 October1996, the SpecialRapporteurtransmitted a letter.tothe
Governmentconcerningthe trials of personschargedwith criminaloffences
againstthe State of Bahrain. Accordingto the source,Amiri Decree No. 7
of 1976,which established the State SecuritC yourt, sets forth exceptional
provisionsgoverning itsproceedings. The source reportedthat these
In particular,the
provisionsdeny defendants the right to a fair trial.
SpecialRapporteurwas informedthat defendantsare not allowed accessto
legal counseluntil they are brought to the State Security Court. As a
result,'defendants can only appointlawyersof their own choosingon the first
day of their trial, justbefore the openingsession of the court. The State
SecurityCourt reportedly appoints.lawyersf .or defendantswho fail to secure
legal representationon their own. Furthermore,defence lawyers allegedlydo
not have access to court documents,nor do they have adequatetime to preparepage 20
a defence for their clients. The source also claimed that the lawyers are
given limited access to their clients duringthe trials. Despite the fact
that article 5 (4) of Amiri Decree No. 7 of 1976 states that sentencing shall
be pronounced in public sessions,and that the sessions of the State Security
Court shall be held in public unlessit is deemed necessary to hold them
in camera, sessions allegedly are always held incamera, attended only by
members of the Bench, the defendants, defence lawyersand representativesof
the Public Prosecution. Sentencing is also reported to take place in closed
sessions.
69. On 18 November 1996, the Special Rapporteur transmitted an urgent appeal
to the Government concerning the death sentencesissued against 'AliAhmad.
Abed al-Usfur, Yousef Hussein 'Abdelbaki andAhmad Ibrahim al-Kattan. A
previous urgent appeal had been sent by the Special Rapporteuron
extrajudicial,summary or arbitrary executionson 3 July 1996 (see
E/CN.4/1997/60/Add.l1para. 44). According to the source, these three
individualswere sentenced to death followingan unfair trial before the
Security Court. The men were reportedly incriminated by the Ministeo rf
Interior before they were brought to court, thus violating the principleof
the presumption of 'innocence. The source also claimedthat this could also be
considered an inappropriate and unwarrantedinterferencewith the judicial
process. In addition, the Special Rapporteurwas informedthat the three were
amongst eight persons who were to be brought to trial under thePenal
Procedures Law of 1996, which was not in effect at the time of the incident of
which they were accused. Allegedly,the authorities broughtthe defendants
before the State Security Court under Decree No. 10, which was issued six days
after the incident. The Special Rapporteur wasinformed that the defence
lawyers had protested and issued a joint note against the retroactive
application of that Decree. It wasalso alleged that the defendants were
detained incomunicado, and that they were denied access to legal counsel .
until immediatelyprior to the opening session of the trial, whichwas held in
secret. The Supreme Court was reported to have ruled on 27 October 1996 that
it did not have jurisdiction over the State Security Court's verdict. As a
consequence, the three men were'at risk of being executed without having had
the right to appeal their sentences to a higher jurisdiction.
Communications fromthe Government
70. On 17 April 1996, the Government provided theSpecial Rapporteur witha
reply regarding the case of Ahmed al-Shamlan. Accordingto the Government,
the information received by the Special Rapporteurwas incorrect.
Mr. al-Shamlan had not been arrested for any of the alleged reasonsbut for
criminal activities unrelated to the conduct of his professional duties.
Furthermore, he was in lawful custody and his right to due process was
guaranteed. The Government also referred to the recent situationof unrest in
Bahrain and stated that the information should be viewedagainst that
background.
71. On 23 May 1996, the Government informed the Special Rapporteur that
Mr. Ahmad al-Shamlan had been released on bail on 15 April 1996. On
5 May 1996, he was acquitted in court of the charges brought againsthim. page 21
72. On 18 June 1996, the Governmentprovided theSpecial Rapporteurwith a
copy of a communiqu6 issuedby the Ministry of the Interiorof the State of
Bahrain relating to an allegedplot to seek to overthrowthe Governmentof the
State of Bahrain and to destabilizepeace in the region.
73. On 25 November 1996, the Governmentprovideda reply to the Special
Rapporteur'scommunicationconcerning Amiri Decree No. 7of 1976. The
communicationcontained a reply which had been sent to the Working Groupon
ArbitraryDetention of the Commissionon Human Rights in 1992 with regard to
the same issue. Accordingto this information,the State SecurityLegislation
is composedof the AdministrativeEmergencyMeasures (1974State SecurityLaw)
as well as ordinary criminal law (1976Penal Code). Both laws are subjectto
judicialreview proceduresas laid down in law. 1t.h the policy of the
Governmentof the State of Bahrain that securitycases are dealt with under
criminallaw, and not under administrative procedureo sf the 1974 State
Security Law. At the same time,it was acknowledgedthat "the 1974 State
SecurityLaw is an exceedinglyvaluable counter-terrorism teasure". Under
this legislation, proceedings before the State SecurityAppeal court are
mandatorily "incamera". Article 1of the 1974 State SecurityLaw provides
that persons.arrestedby order of the Ministerof the Interiorfor:committing
any of the acts set out in the law may (subjectto .judicial review)be
detainedfor a period not exceedingthree years. Anyone arrested underthis
provisionhas the right to appeal to the High Court after three months and
thereafterperiodically,every six months. If this right is notexercised,
the prosecutingauthority shallexercise thisright for purposesof validating
the Minister'sarrest order (art.4).
74. In addition to this procedure,which is related to "highly sensitive
information", the criminal acts set out in the ordinary 1976 PenalCode are
subjectto the 1966 Code of CriminalProcedure,article 5 of which provides
that sessions are publicunless the Court decidesotherwise. The Code
furthermoreprovides, with regard to appeals, that,since criminalproceedings
are of an inquisitorialnature, the verdict of the court is not subjectto
appeal. However, such a verdictmust be viewed in the light of prior judicial
findingsin proceedingsbefore the remand (review) investigatorc yourts. The
criminalSecurity Court, moreover,is in fact the High Court of Appeal.
Clemencyfollowing convictionmay always be petitioned to the Amir. In the
event of acquittal, thereis no remedyavailableto the prosecution.
75. The Court of Cassation,formedunder Law No. 8 of 1989 has not yet
exercisedany appellate jurisdictionover criminalsecuritycases, in'spiteof
its technicallysupreme appellatestatus,on points of law only.
Observations
76. The Special Rapporteurremainsconcernedthat the trialsbefore the
State Security Court violatearticle 14 of the InternationalCovenanton Civil
and Political Rights owingto the apparentlack ofdue process in the Court.
The Special Rapporteurwill continue tomonitor further developments
concerningthe use of the StateSecurityCourt by the State of Bahrain. Belarus
77. On 12 November 1996, the Special Rapporteur sent an urgent appeal to the
Government of Belarus concerning informationhe had received that
PresidentAlyaksandr Lukashenka was reportedly inthe process of suspending
the Constitutional Court, following its decision regardingthe referendumon
two draft constitutions, one prepared by the President and oneprepared by the
Parliament. It was also reported that the President had stated that he would
ignore the Court's decision. In addition, it had been brought to the Special
Rapporteur's attention that earlier in 1995 the President had already
threatened to take decisive actionif the courtdid not change a specific
ruling. At that time, the President had allegedly threatenedto dismiss the
Court's chairman, following five decisionsof the Court ruling that certain
presidentialdecrees were unconstitutional. The Special Rapporteurexpressed
his concern over these allegations and requestedthe Government to provide him
with information.
0
78. A reply was received from the Governmenton 10 January 1997, in reaction
to the Rapporteur's appeal of 12 November 1996; the reply had not yet been
translatedat the time the present report was finalized.
Communicationto the Government
79. On 28 October 1996, the Special Rapporteur sent an urgent appeal to the
Government of Belgium concerning informationhe had received pertaining to the
ongoing damonstrationsin Belgium following thedismissal of a magistrate
investigatinga case of child prostitution, kidnapping andmurder. The
Special Rapporteur statedthat while the dismissalof the magistrate may have
been appropriate under Belgian law as his actions called into question his
impartialityin the matter, it had underscoreda perception that the systemby
which magistrates and judges were appointed,promoted and dismissed was
motivated by political and/or partisan interests. The Special Rapporteur had
been informed that that had resulted in a lack of public confidencein the
judicial system in Belgium. In addition, the Special Rapporteurexpressed his
I I deep concern about the media reports allegingthat the judicial systemin
Belgium was perceived by the public as being corrupt. The Special Rapporteur
further noted his appreciation of the Prime Minister's assurance that his
Governmentwould press for constitutionalreforms, inter alia, to stop the
appointment ofmagistrates on the basis of political considerations. The
Special Rapporteur requestedthat he be kept informedof such proposals.
Lastly, the Special Rapporteur suggested meeting with the Prime Minister,the
Minister of Justice and the Presidentof the Cour de Cassetion during his next
visit to Europe, in order to discuss the proposed reforms.
Communication fromthe Government
80. The Government acknowledged receiptof the Special Rapporteur'sletter
on 4 November 1996 and a substantive reply was received on 11 December 1996.
The information transmittedby the Government includeda copy of the Belgian
Constitution and a copy of the Government'sproposal to revise Article 151 of
the Constitution. page 23
81. The Governmentof Belgiumaccededto the request of the Special
Rapporteur fora meetingin Brusselsto discussthe proposalto reform the
procedure for the appointmentof magistrates andjudges. The Special
Rapporteurhas informedthe Governmentthat he will notify it of the dates on
which he will next be in Europe.
Bolivia
82. On 25 March 1996, the Special Rapporteursent an urgent appeal, jointly
with the Chairmanof the WorkingGroup on Arbitrary Detentionc ,oncerningthe
case of a lawyer,Mr. MoralesDgvila,who had reportedly beendetained since
7 March 1996. According tothe informationreceived,he had been accusedof
sedition and contempt of presidential authority followin his public
declarations against government economic policies regard plans for
"c'apitalizinga"state-ownedoil and gas company. Mr. Morales Dgvilawas
allegedlyheld incommunicadosince 16 arc1996 and had been denied accessto
lawyers andfamily. In addition,the penal judgewas reportedto have failed
to rule on the habeas corpus petitionwhich had been presentedby the Bolivian
Bar Associationon his behalf.
83. On 24 June 1996, the SpecialRapporteursent a follow-upcommunication
to the Governmentof Bolivia,regardingthe case of Mr. Manuel MoralesDgvila,
remindingthe Governmentof his communication of 25 March 1996.
84. At the time the presentreportwas finalized,no reply had been received
from the Government.
Botswana
85. On 7 May 1996, the Special Rapporteur senatn urgent appeal to the
Governmentof Botswanaconcerningthe caseof Mr. A.C.N.Nchunga,a senior
magistratein Botswana. Accordingto the source,Mr. Nchungahad been removed
from the Office of SeniorMagistrateswith immediateeffect,and it was
allegedthat no reasonshad been givenfor that removal.
86. On 23 May 1996, the Governmentprovidedthe SpecialRapporteurwith a
reply to his letterof 7 May. It contained detailed information regardi the
constitutional provisions concernir ngmovalproceedingsand criteria. The
Special Rapporteurwas informedthat the recommendation for removalof
Mr. Nchunga fromoffice for reasonsof inadequatebehaviourhad beenmade by
an independentbody, the Judicial Service Commission. In addition;the
removalwas carried outin accordance withthe provisionsof the Constitution,
following a fairhearing. The Special Rapporteur was furthermore informed
that Mr. Nchungawas transferred to apost with the same level of remuneration
and rank, butof a less sensitivenature.
87. On30 May 1996, the Special Rapporteursent a letter to the Government
in which he thankedit and expressed appreciation fo the information
.provided.page 24
Brazil
88. On 12 December1996, the Special Rapporteur sen t communicationto the
Governmentof Brazil concerning the murder of FranciscoGilsonNogueirade
Carvalho,a lawyerand human rights activist.It was allegedthat his
assassination might be linket do his workas a lawyer andhis investigations
concerningthe participationof membersof the civilianpoliceof Rio Grande
do Norte in death squads. The Special Rapporteur requested informata ionut
the investigation into thiskilling. He was informed about a previousurgent
appeal sent on 23 October 1996by the SpecialRapporteuron extrajudicial,
summary orarbitrary executions in whichreferencehad been madeto this case
(seeE/CN.4/1997/60/Add.l1 para. 62 (d)).
89. On 18 December1996, the Special Rapporteur received areply from the
Governmentof Brazil indicating'that the Federal Police were i cnhargeof the
investigation. In addition,the Governorof Rio Grande do Norte had dismissed
the DeputySecretaryof State for PublicSecurity, suspected of being involved
with the group known as "meninosde ouron. Lastly,the Councilfor the
Defenceof the Rights of the Human Personof the Ministryof Justicehad set
up a specialcommissionto investigate the allegationsof human rights
violationsby the police of Rio Grande doNorte, in particularthe activities
of theabove-mentionedgroup.
90. The Special Rapporteur would like t thank the Governmentof Brazil for
its prompt response to his appealand welcomesthe positive steps taken in the
case. However,he would requestthe Governmentto keep him informedon the
progressof the investigation.
BurkinaFaso
91. Following.a meeting that the Special Rapporteurhad with the Ministerof
Justice in Ouagadougouon 23 March 1996, on 12 July1996, the Minister
providedthe Special Rapporteur with information about the guaranteeswith
regard to the independenceof judgesand lawyers, provided for in article129
of the 1991 Constitutionas well as about recent legislationin that respect.
In addition,the SpecialRapporteur was informe dow the recentmodifPcations
to legalprovisionshad increasedthe independence andimpartiality of the
judiciaryand improved theimplementation of human rights.
92. Ordinance91-0052relatesto the establishment, organizationand
operationof theSupremeCouncilof Justice,which isthe organ charged with
disciplinary matters.The Chief of State, who is thePresidentof the
Council, andthe Minister of Justice, whois Vice-President, do not
participatein sessionsrelatingto such measures. Another ordinance of
special interestto the Special Rapporteur'm sandateis Ordinance
No. 91-979/PRESof 25 November 1991on special provisions concerning
procedures forthe revisionof sentences handed down by the People's
RevolutionaryCourts and the courtsof special jurisdiction under th previous
regime. The Special Rapporteur was informed thatthe conditions for review of
sentenceshanded down by the courts mentioned had been extendedand, as a. page 25
consequence,numerousapplicationsfor revisw had been addressedto the
winisterof Justice. Furthermore,the State had been made to pay hundreds of
millionsof francs compensation to persons whohad been prosecuted and
punishedby the People'sRevolutionaryCourts.
Chi1e
93. The Special Rapporteurwas informedthat on 31 October1996, the Supreme
Court of Justice had rejectedthe peti'tion made by the military prosecutor to
instruct allappeal courts to close legal proceedingsrelatingto human rights
violationscommittedbeforeMarch 1978,under the military Government. Ba
majorityvote of 14 of the 15 SupremeCourt members,the ruling re-established
the independenceof the judiciary. TheCourt held that "judgesare
independentto decide ... on cases within their jurisdiction: in this regard,
any externalinfluences,from sourcesother than the judiciary,and internal
influencesfrom higher authorities ... are inadmissible".
i ) Peo~le'sRe~ublicof China
Communicationsfrom the Government
94. On 18 March 1996, the Governmentof the People's Republicof China
provideda reply to a joint urgent appealsent by the Working Group on
Arbitrary-Detention, the SpecialRapporteuron theindependenceof judges and,
lawyers andthe Special Rapporteur on freedomof opinionand expression on
14 December1995 (see.E/CN.4/1996/37, paras. 133-2341. The Government
replied thatWei Jingshenghad been involved in activities relatedto plotting
to overthrowthe ~overnmentwhile he was on parole and deprivedof his
politicalrights. The specialRapporteurwas informedthat on
13 December1995, the BeijingNo. 1 People'sCourt heldan open hearing ofthe
case of Mr. Wei and, in accordancewith the .law,sentencedhim to 14 years'
imprisonmentand 3 years' deprivationof politicalrights at first instance,
for thecrime of conspiringto overthrowthe Government. The Government
statedthat the right to defencehad been effectively guaranteed during the
trial. In accordancewith the law, in additionto the exerciseof the right
to defendhimself duringthe proceedings, anaccusedperson may engagelawyers
or close relativesor other citizensto defend him. In addition,the accused
person is informed.aboutchargesno later than sevendays before the opening
of the court session, so that he will be informedof the charges, andwill
have sufficienttime to preparehis defenceand contacthis counsels. Lastly,
the SpecialRapporteur wasinformedthat the proceedings had been carried out
in accordancewith nationallaw and with internationalinstruments, including
provisionsof the InternationalCovenantof Civil and PoliticalRights, to
which China has not yet acceded.
Colombia
Communicationsto the Government
95. On 18 March 1996, the Rapporteur transmittea dn urgent appeal to
the Governmentof Colombia,concerningdeath threats .against
Mrs. Margarita Arregocesand a human rights lawyerMr. ReinaldoVillalba
Vargas of the Lawyers'Collective(Corporaci6n Colectivode Abogados). Thepage 26
message containingthe threats wasreportedly signed by a paramilitarygroup
called COLSINGUE, and was also considered to be an indirect threat against
Mr. Villalba Vargas who is defending Mrs. Arregoces in a trial which was
initiated againsther by the regional public prosecutor's office of
Santafe de Bogotb.
96. On 12 December 1996, the Special Rapporteur sent an urgent appealto the
Government of Colombia concerning PedroJulio Mahecha Avila, a lawyer and
member of the lawyers' collective 'Alvear RestrepoN, who was reportedlybeing
followed and watched by unknown individuals. In this context, the Special
Rapporteur also referred to an urgent appeal sent previously to the Government
by the Special Rapporteuron extrajudicial, summary or arbitrary executions.
According to.the source, in anonymous phonecallsvarious persons had allegedly
tried to find out the whereaboutsof Mr. Mahecha Avila, his wife and his son.
It has been reported that those acts of intimidation mightbe linked to his
work as the lawyer of persons who are detained for political reasons,
including members of a guerrilla-group. The Special Rapporteurwas informed
that since the establishment of thelawyers' collective several of its members
had been receiving death threats related to their work as human rights
lawyers.
97. On 16 December 1996, the Special Rapporteur sent a joint urgentappeal,
together with the Special Rapporteuron extrajudicial,summary or arbitrary
executions, concerningthe reported assassinationof Mr. Heli G6mez Osorio, a
municipal ombudsmanin the Department of Antioquia. Mr. Osorio was reportedly
shot dead on 26 November 1996 by three men who allegedly belong to a .
paramilitary groupwhen he was leaving the officeof the mayor in El Carmen
de Viboral. The Special Rapporteurswere informed that in recent years
Mr. Osorio, in his professionalcapacity had publicly denounced violations of
human rights, inclu&ing assassinations carriedout as "social cleansing". His
name was reportedly.included on a list of 33 persons who were accused of
collaboratingwith the guerrilla. In addition, the Special Rapporteurs were
informed about the killing of Jose Loaiza Correa, a municipal employee of
Cafiasgordas,whose dead body was reportedly found on 2 December 1996. It was
alleged that he had also been killed by paramilitary. Further, 8 of the
15 municipal employees are reported to have resigned out of fear for their
security. The Association of Municipal Employees was reportedto have
requested protection from the Ministry of Defence and Justice, which had
reportedly not been provided. On the basis of this information,the Special
Rapporteurs requested the Governmentto carry out a prompt investigation into
the killings, and to provide the other municipal *employees in the Department
of Antioquia with protection.
Communications from the Government
98. At the time the present report was finalized, no reply had been received
from the Government.
CGte dlIvoire
99. On 19 June 1996, the Special Rapporteuraddressed a conununication to the
Government of CGte dlIvoire regarding a number of draft bills which werebeing
prepared by the Minister of Justice and Public Liberties. One of these bills gage 27
might affect the status of the judiciaryiriCGte dlIvoire. It had been
brought to theSpecialRapporteur'sattention that certain provision of that
bill, in particular articles 6 and 50, might infringethe principleof the
separationof powers,as well as the irremovabilityof judges. Furthermore,
articles10 and 16 of that reportedly mightinfringe upon theright of judges
and lawyers toform associations. The SpecialRapporteurrequested
information regarding the dates of the debate inParliamentof the draft bill
and requested the Government to forwah rdm a copy ofit.
100. At the time the present reportwas finalized,no reply from the
Governmentto'thiscommunication had been receivedby the SpecialRapporteur.
Communication tothe Government
101. On 26 June 1996,the Special Rapporteur sent a letterto the Government
of Cuba, remindingthe Governmentof previousconsultations withthe High
Commissioner for Human Rights in which theGovernmenthad expressedits
willingnessto consider inviting thematim cechanismsto undertake a missionto
Cuba. The Special Rapporteur informedthe Governmentof his wish tocarry out
an in situ investigationof the independenceof the judiciary in Cuba, and to
establisha dialoguewith the relevant authorities.with a view to identifying
areas where technicalor other assistance might be required, inorder to
strengthen the existins gystem of justice.
102. On 8 July 1996, the Special Rapporteurtransmittedto the Governmentof
Cuba a letter containing allegations regardit nge cases of three lawyers,
LeonelMorej6nAlmagro,Ren4 Gomez Manzano and Jorge Bacallao. LeonelMorejon
Almagro,then executive secretaro yf the provisional organizing grouf por the
"ConcilioCubano",a coalitionof unofficialgroups, including political
parties and organizationo sf lawyers, journalists, womenand tradeunionists,
was alleged tohave been detained fornine hours on 14 November1996.
Accordingto the information receivedh ,e was dismissedfrom his post at the
Marianao Lawyers Collectivb ey the NationalDirectorateof Lawyers'
Collectives,for alleged "technical deficiencies". He was reportedly arrested
once more, for organizinga meeting for the nationalcommitteeof the Concilio
Cubano on 12 January 1996. On 22 February1996, he was tried for 'resistance"
and condemned tosix months' imprisonment,apparently for asking members of
the State SecurityPoliceto identify themselves upon his arrest. The Special
Rapporteurwas also informedthat his lawyer,Mr. Jose Angel Izquierdo
Gonzalez, whoonly hadlast-minute accessto his clientand detailsof the
case,was fined after the trial forstating publicly that the trialwas a
"sham". It was feared thathe might be facingdisciplinarymeasures.
103. Ren4 Gomez Manzano, oneof the foundersof the 'ConcilioCubano", was
reportedly dismissed frot mhe lawyers' collectivein October 1995 after
criticizing the leadershio pf the National Assemblyof Lawyers'Collectives.
The information receiveb dy the Special Rapporteur indicated that tr heason
given forthe dismissalof Mr. Gomez Manzanowas that hisbehaviour'did not
concord withofficialpolicy" and alleged..toe "incompatible with his
participationin the lawyers'collective". It was also allegedthat the
dismissalwas linked tohis work as the defencelawyer for Mr. Abel del Valle,page 26
about whose case he hadpublicly stated that the defence lawyers had been
prevented from presentingtheir own witnessesand were not permitted to see
so-called 'secret documents" which reportedlywere the mainstay of the
prosecution's case. Furthermore,Mr. Gomez Manzano was reported to have
spoken out on issues relating to the justice system in Cuba, in his capacity
as president of an unofficial group called "CorrienteAgramontista".
Jorge Bacallao, a member of the same group, was reported to have been
subjected to harassment and intimidationby members of the State Security
Police to make him stop his activitieson behalf of the "Concilio Cubano".
104. The Special Rapporteurwas also informed that under Cuban law lawyers,
all of whom are employed by the State, are obliged to observe and contribute
to the strengthening of socialist legality. Accordingto the information
received, all legal services to the populationare provided through bufetes
colectivos, collective law offices, organized and supervisedby the Ministry
of Justice. The role of defence lawyers in cases of a political naturewas
reported to be severely limited,and the information received indicated that,
for example, in cases of crimes against State security,defence lawyers were
not permitted to have any direct contactwith their clients during the first
weeks or even months of pre-trial detention. Furthermore, a numberof defence
lawyers who had been outspokenin recent years were penalized in professional
terms, and sometimes dismissed or threatenedwith physical violence.
105. At the time the present report was finalized,no substantive reply had
been received from the Government tothe allegations containedin his
communication of 8 July 1996. However, in response to the request to visit
Cuba, the Government recalledits discussions with the High Commissioner for
Human Rights in 1994 concerning the question of invitations to thematic
rapporteurs of the Commission. The Governmentnoted that, on that occasion,
it had reiterated its politicalposition on cooperationwith the human rights
mechanisms of the Unit.edNations that the same conditionsshould be applied to
all Member States, based on the principles of objectivity, impartialityand
non-selectivity. In that context, the Cubanauthoritieshad stated that they
would consider the possibility of inviting thematic mechanisms of the
Commission on Human Rights when it was of interest and convenience for the
country.
Diibouti
106. On 8February 1996, the Special Rapporteur senta joint urgent appeal to
the Government of Djibouti with the Special Rapporteuron extrajudicial,
summary or arbitrary executions, concerningallegations ofthreats and
harassment against human rights lawyer Aref MohammedAref who, on
16 January 1996, was reportedly informed thatcertain police officers had
received instructions toexecute him. This informationwas subsequently
reported to the Attorney General's office, whereon whichMr. Aref was informed
that the threats would not be investigated, nor would he be provided with
protection. In addition, Mr. Aref was reportedly followed constantlywithout
his consent by two members of the Political Police. The allegations indicate
that the threats might be linked to his professionalactivities,which
included representationof victims of human rightsviolations. page 29
107. At the time the present report was finalized,no reply had been received
from the Government.
Ecuador
108. The Special Rapporteur was informedabout the establishment of the Truth
and Justice Commission, charged with investigatingcomplaints of unresolved
human rights violations in the past 17 years. The commission, which is
mandated to publish its report and to file its findings and recommendations
before the relevant judicial authorities, could serve as a measure to end
impunity and ensure that victimsand their relatives are adequately
compensated for violations of their human rights.
Guatemala
109. The Special Rapporteurrefers to the report of the Special Rapporteur on
extrajudicial, summary or arbitrary executions in relation to the case of the
( 1 death of an ex-member of the judiciary, Jose Vicente Gonzalez, a former judge,
who reportedly died by the hands of the military in December 1995 after having
received death threats on various occasions (E/CN.4/1997/60/Add.l1para. 188).
India
Communication to the Government
110. On 28 March 1996, the Special Rapporteur transmitted an urgent appeal to
the Government of India concerning the alleged abduction of Jalil Andrabi, a
lawyer, human rights activistand Chairman of the Kashmir Commission of
Jurists, by government soldiersof the "RashtriyaRifles". According to the
information received, a habeas corpus petition was filed in the Srinigar High
Court, but the "RashtriyaRiflesN reportedly deniedthat Mr. Andrabi was in
their custody.
111. On 29 March 1996, the Special Rapporteurtransmitted another
communication to the Government of India, after receiving information that
Mr. Andrabi's dead body had been found in a river on the morning of
,. 27 March 1996. The Special Rapporteur requested theGovernment of India
promptly to order an independentand impartial investigation, to make public
the findings of such investigationand to bring to justice those responsible.
112. On 17 May 1996, the Spe.cialRapporteur transmittedanother communication
to the Government in which he welcomed the prompt action taken by the
Government in ordering an investigation into the murderof Jalil Andrabi. He
requested additional in£ormation on the investigations.
Communication from the Government
113. On 2 April 1996, the Government provided the Special Rapporteur with a
press statement by the spokesman of the Governmentof India. According to
this press statement, a special team had been set up to investigate the case
of the killing of Mr. Jalil Andrabi.page 30
114. On 12 April 1996, the Government provided theSpecial Rapporteurwith
information regarding the investigation into the killing of Mr. Jalil Andrabi.
According to the Government, the Jammu and KashmirHigh Court was monitoring
the investigations and the AdvocateGeneral of Janunuand Kashmir and the
investigating team would be reporting directly to the Court. In addition,the
Nationa1,Human Rights Commission of India had launched an independent
investigation into the matter.
115. On 2 May 1996, the Government provided theSpecial Rapporteurwith
updated informationon the case of Jalil Andrabi, which had also been provided
to the Special Rapporteuron extrajudicial, summaryor arbitrary executions.
In order to avoid unnecessary duplication,the Special Rapporteur refersto
the report of the Special Rapporteuron extrajudicial,summary or arbitrary
executions (E/CN.4/1997/6O/Add.l,para. 223).
Indonesia
Communications to the Government
116. On 23 October 1996, the Special Rapporteur transmitted an urgent appeal
to the Government of Indonesia concerningthe case of two lawyers,
Bambang Widjojanto and Muchtar Pakpahan. Accordingto the source, Mr. Bambang
Widjojanto was reportedly facing the threat of arrest and criminal prosecution
as a result of his refusal to answer a number of summonses arising from his
legal representation of clients. The source also alleged that the summonses
were an effort to undermine his professional obligations towards his clients
and that they interfered withhis representationof Muchtar Pakpahan and
others. The authorities reportedlywere attemptingto intimidate other
lawyers from undertaking and mounting a vigorousdefence in controversial
cases. In addition, Muchtar Pakpahan,who, according to the information
received was a trade union lawyer, was reportedly arrested on 30 July 1996, on
charges of being an accomplice in subversive activities. The Special
Rapporteur was also informed that Mr. Pakpahan hadbeen questioned about his
involvementwith "Mjelis Rakyat Indonesia1', an alliance of 32 pro-democracy
non-governmentalorganizations. It was allegedthat his arrest and detention
could be related to his work as a legal representativeof workers and'their
concerns, and thus might interfere withhis right to freedom of opinion and
expression.
Communication from the Government
117. The Government provided the Special Rapporteurwith a reply
on 1 November 1996, in which it stated that Mr. Widjojanto had been summoned
because of past activities related to his clients. When he had refused to
respond to the summons because itdid not necessarily reflectthe difference
between his client-attorneyprivileges andhis past relationshipswith those
persons, the summons had been corrected tomeet his demands. The Government
informed the Special Rapporteur, furthermore,that after the questioning
session, Mr. Widjojanto had stated to the press that the Government's
questions had not been related to client-attorney privileges. With regard to
Muchtar Pakpahan, the Government informedthe Special Rapporteurthat he was
not a lawyer and he had never worked as a representativeof workers,.norwas
he a member of the organizationmentioned. Hisarrest was related to his page 31
participationin an illegal organization and his participation in activities
which resulted in rioting on 27 July 1996,duringwhich somepeople had been
killedor injured.
Kazakstan
Mission
118. On 21 February1996, the Special Rapporteur receiveda positivereply
from the Governmentof Kazakstanto his request to be invited to tha country.
The Governmentrequested theSpecial Rapporteur to indicate suitabledates for
such avisit. Owing to other commitments, the Special Rapporteur was
compelledto postponethe proposedmission.
Kuwait
..-
119. The SpecialRapporteurwas informedabout theneeds-assessment mission
i \ to Kuwait carried out from 4 to 14 March 1996 by two staff membersof the
Centre for Human Rights under theprogrammeof technicalcooperationin the
fieldof human rights. The SpecialRapporteur took particular noteof the
part of their missionreport relating to theadministrationof justice. The
Constitutionof Kuwait guaranteesthe independence of justice in article163,
and interference with the course of justiceis prohibited. Civilianjudges
are grantedlife tenure.
120. The recommendations on the administrationof justicecontainedin the
reportare ofspecial interestto the mandateof the SpecialRapporteur. He
welcomesthe fact that Kuwaitis proceedingto ratifythe International
Covenanton Civil and PoliticalRights.
121. The missionrecommendedthat the Government should reviewcurrent laws
and proceduresrelatingto fair trial,regulationsand standingorders
relatingto the administrationof justice,penalties,the police,prisons and
courts,with a view to ensuringtheir conformity withinternationalhuman
rights standards.Such a review should includeemergency legislation, as
protection ofthe right to a fairtrial should bemaintainedafter the
I declarationof martial law or other exceptionalmeasures. In addition,it was
recommended that the Governmentshould providehuman rightstrainingto all
personnelworkingwithin the administrationof justice. The mission also
recommended that there shouldbe a judicialreview of expulsion orders, and
that an independentjudiciary should be guaranteedin a strong Constitution,
which would also limitemergencypowers. In addition,the mission recommended
the elaboration of a national training regimefor lawyers and judges regarding
human rights and democracy. Specifrecornmendation sere made with regardto
emergencylegislation: areview of the current legal regime for statesof
emergencywas needed and they shouldonly be declaredin conformitywith the
law. Evenduring astate of emergency, nobody shouldbe held guiltyof a
criminaloffenceon accountof any act oromissionwhich did not constitutea
criminaloffenceat the time it was committed. An independent andfully
functioning judiciary must be protected. Nothing done pursuantto the state
of emergencyshould diminish thejurisdictionof the courts to reviewthe
legality ofthe state of emergencyor their jurisdiction overlegal actionsto
protectany rightsnot:affectedby the declarationof the state of emergency. page 32
Malavsia
Communicationto the Government
122. In his second report to the Commissionthe Special Rapporteur expressed
concern over allegations of impropriety inthe Malaysian judiciary with regard
to a few decisions of the courts. He also made reference to events that had
aroused considerable public anxietyas to the integrity, independenceand
impartialityof the judiciary, and tothe fact thathe had issued a press
statement indicatinghis intention to investigatethe complaints
(E/CN.4/1996/37,paras. 158-165).
123. Arising from those decisionsand the concerns expressed, an article
entitled 'Malaysian Justice on Trial" was published in the November 1995 issue
of International CommercialLitigation. Withina year from December 1995,
those personalitiesand corporations that had received favourablerulings in
the decisions and/or attempted to obtain such rulings in the judicial process,
i
which had given rise to the Special Rapporteur'sconcern, as well as the
lawyer who had appeared for them,served 13 writs, issued in the Malaysian
court, alleging defamation againstthe author of the article in question, the
publisher, a correspondent of the Asian Wall StreetJournal, two lawyers, one
of them the Secretary of the Bar Council,the partners in the latter
individual'slaw firm, and lastly, on 12 December 1996, against the
Special Rapporteur. The total amount claimed in these lawsuits is
approximatelyMR 800 (US$ 320 million). The claimants allege that the article
was defamatory of themselves and was based upon interviews the author had had
with the defendants, including the Special Rapporteur.
124. In the article in question, wherever quoteswere attributed to the
Special Rapporteur,it was indicated that the statements had been made in his
capacity as Special Rapporteur andthat he was still investigatingthe
complaints, and therefore thathe had not reached any conclusions.
125. In December 1995 and March 1996, the SpecialRapporteur received letters
from the claimants' solicitors threatening legalproceedings for defamation.
The Special Rapporteur immediately referred the matter to the Centre for Human
I Rights in Geneva and the Office of the United Nations Legal Counsel in
New York. The Centre for Human Rights notifiedthe solicitors for the
claimants, by letter dated 22 December 1995,of the Special Rapporteur's
immunity from legal process under the Convention onPrivileges and Immunities
of the United Nations (1946). On 28 December 1995, the Centre transmitteda
note verbale to the Permanent Missionof Malaysia to the United Nations Office
in Geneva requesting that thecompetent Malaysianauthorities be advised of
the Special Rapporteur'sprivileges and immunitiesand that they, in turn,
advise the Malaysiancourts of his immunity fromlegal process. On
29 March 1996, the Office of the Legal Counsel of the United Nations notified
the Permanent Representativeof Malaysia to the United Nations of the
Special Rapporteur's immunity from legal process.
126. Despite these communications fromthe Secretariat, on 6 January 1997,
the Special Rapporteurwas.served with the writ issued by the Malaysian High
Court (referred toin para. 234 above) wherein the two corporations involved
in the controversialdecisions\whichhad given rise to the concern of the
\
7 page 33
Special Rapporteur are claiming MR 60 million (US$ 24 million) in damages
againsthim. Upon consultationand advice from theUnited Nations Legal
Counsel, theSpecialRapporteurenteredconditionalappearance and has applied
to the court to set aside thewrit on thegrounds of his United Nations
immunityfrom legalprocess. The SpecialRapporteur'sapplicationis fixed
for hearingbefore a judge on 12 March 1997. The applicationhas been served
on the solicitors forthe claimants.
127. The Special Rapporteur has been informedby the Office of the Legal
Counsel thatit is liaisingwith the Government of Malaysia, throughthe
PermanentMission in New York, to assert his United Nations immunityin court.
128. In this..regardt ,he SpecialRapporteurwishes to place on record his
.appreciationto the Legal Counseland thestaff of his Office, in particular
his Deputy,for their promptattentionto hismatter and for allof their
adviceand assistance todate.
i i
129. In another development,on 23 August 1996 the Special Rapporteur wrote
to the Ministerfor ForeignAffairs of Malaysia inquiring into allegations
that the Attorney Generalof Malaysia was proposing to amend the Legal
ProfessionAct 1976 to provide interalia:
(i) For non-private practitioners, includin lawyers in full-time
servicein the Government, whoare not advocates or solicitors
admittedto practice,to becomemembers of the MalaysianBar;
(ii) That the Attorney Generalbe statutorilyappointed the President
of the Malaysian Baror, at least,exercise a controlling
influence overthe affairsof the MalaysianBar;
(iii) That the Attorney Generalwould appointmembers to the Bar
Council.
130. The Special Rapporteur also indicatedto the Minister forForeign
Affairs thathe had learnt that the proposea dmendmentswere in retaliation to
public statements issuedby the Malaysian Bar Councilin connectionwith
eventsaffectingthe administrationof justicein Malaysia.
131. The Special Rapporteur considers that while there may be no objection
to the enlargingof the MalaysianBar to includethose in .full-timeemployment
in government,in the universities andin commercialcorporations,the motive
of the Attorney General for such enlargementgives rise to concern. In a
speech deliveredat the annual dinnerof the Medico-Legal Societyof Malaysia
on 19July 1996, the Attorney General said, inter alia:
"Becausethe Bar Council comprisesonly private practitioners, the Bar
Council often forgetsthat it is a body corporatecreated by statute ...
It frequentlyspeaks as if it is a private law association,or an NGO or
an oppositionpoliticalparty. It does notunderstand,nor seek to
understand thevarious sensitiveissues facing the Government. I have
always reminded the leadero sf the Bar Councilthat it can.seek and have
meaningfuldialogues withthe AttorneyGeneral's Chambersand the
judiciary,to better understandand discuss the issues at hand, away from the glare of media attention. If the leaders of the Bar Council
can bring themselves totalk with genuine respect for judges and
officers of the Crown, instead of taking positions by publicstatements
and open criticisms of the judiciaryand the Government, then and only
then can there be a truly useful forum for us to discuss the various
problems that beset our profession. Our profession is comprisedof
members of the judiciary, Government legal officers, law lecturers,as
well as private practitioners ... not just private practitionersalone!
We need a body, a Bar Council, that truly represents all branches of the
legal profession ... so that our profession willtruly be united. It is
in this context that I look with admiration and respect to the medical
profession. There is a lot that we can learn from themedical
profession and how to organize and manage our profession. I have in my
previous meetings with the President and leaders cf the Bar Council
stated that if the Bar Council does not take medication tocure itself,
then it may have to undergo surgery to cure itself of its malignant
illness ... They have not listened to myadvice ... maybe surgery isnot
imminent or inevitable. My Chambers are presentlypreparing a paper
with recommendationsto the Government toreform the legal profession
and, hopefully, with proper medication, a few minor surgeries,
implantationsand transplantationshere and there, the legal body will
be cured of its many ills and live a long and healthy life, contributing
to the well-being of our Nation!"
The remarks reproduced above tendto indicate that the paramount motive for
the proposed enlargement is to curtail the independence of the Malaysian Bar.
132. At an extraordinary general meetingof the Malaysian.Barconvened
on 21 September 1996 toconsider the above-mentionedspeech of the Attorney
General, a record number of members of the Bar attendedand adopted the
following resolution:
"(i) The independence of the Malaysian Bar is vital to the democratic
society of Malaysia, the Rule of Law and the independenceof the
judiciary, and is also essential to the growth of Malaysia as a
leading commercialand economic entity inthe region;
(ii) We therefore strongly oppose any measures to amend the Leaal
Profession Act 1976 that would have the effect of diluting or
impairing the independence of the Malaysian Bar and/or the Bar
Council. "
133. The Special Rapporteur has not yet received a response from the
Government of Malaysia to his letter, apart from an acknowledgment contained
in a letter dated 8 October 1996.
134. In the light of these developmentsand in particular the currentcivil
suit pending in the Malaysian courts, the SpecialRapporteur has decided to
postpone reporting to the Commission on Human Rightson his findings to date
on the initial complaints referred to in his second report (E/CN.4/1996/37,
paras. 158-165) . Mexico
Communicationsto the Government
135. On 7 May 1996, the Special Rapporteur sent an urgent appealto the
Governmentof Mexico concerningallegeddeath threatsand acts of harassment
against humanrights lawyer MariaTeresaJardi of the National Commission of
Human Rights,her son, JulianAndrade Jardiand her assistant,
HectorGutierrez Ugalde. The threats reportedly are relat todthe work of
Mrs. Jardi as a human rightslawyer,and to the work of her son, who was
carryingout investigations into human rights violations committed by the
security forces. In addition,the NationalHuman Rights Commissionhas
investigatedseveral cases concerning human rights violationsby individual
membersof the secarity forces,and had issued recommendations that individual
.,. membersbe sanctionedfor criminalacts. (Seealso E/CN.4/1997/60/Add.l1
para. 314.)
' 1 136. On14 August 1996, the Special Rapporteur sent a joinu trgent appeal
with the Special Rapporteuron extrajudicial, summary or arbitraryexecutions
to the Governmentof Mexico concerningallegations thattwo lawyers,
Pilar Noriega andDigna Ochoa,had receivedanonymousdeath threats.
Accordingto the information received,the threats mightbe related to their
work as lawyers, sincethey had been involvedin the defence of alleged
membersof the ZapatistaArmy for National Liberation.Both lawyers are
membersof the human rights centre "Centrode DerechosHumanos-MiguelAgustin
Ju&rezn (PRODH). Other members of this organizationhave been threatenedon
previousoccasions,on the allegationthat it is involvedin guerrilla
activities. The Special Rapporteuron extrajudicial,summary or arbitrary
executionshas on severaloccasionsintervenedin such cases (see
E/CN.4/1997/60/Add.lp ,ara. 314).
137. On 10 June 1996, the SpecialRapporteur sent a follow-up letterto the
Government ofMexico, requestingupdatedinformationregarding the
j I investigations into the assassinationof Judge Polo Uscanga (see
E/CN.4/1996/37, paras. 168-171).
Communication from the Government
138. On 21 May 1996, the Governmentprovidedthe Special Rapporteur with a
reply to the above-mentionedallegations. The kidnappingand ill-treatment of
Mr. Gutierrezwas under investigation and protectioh nad been provided to
Mrs. Jardf andher son, despite the fact that noneof the victims had
officiallydenouncedthe acts of intimidation andthe threats.
139. On 1 October1996, the Government provided the Special Rapporteurwith a
reply to his communicationof 14 August 1996 concerningalleged death threats
against Pilar Noriegaand Digna Ochoa,lawyers withPRODH and members of the
NationalFront of DemocraticLawyers. Despite the fact that the Human Rightspage 36
Commission of the Federal District had not received a complaintregarding the
threats, the General Procurator of the Federal Districtand the Secretariatof
Public Security had been requestedto take protection measures for the two
persons in question.
140. On 12 November 1996, the Government provided additional information with
regard to the above-mentionedcase. The Government informed the Special
Rapporteur aboutthe securitymeasures taken in order to protect the PRODH
office. In addition, the Government informed theSpecial Rapporteur that the
two lawyers hadinformed the Office of the General Procurator thatfor the
moment they did not require any protection.
141. The Rapporteur would liketo refer to the report of the Special
Rapporteur onextrajudicial, summaryor arbitrary executions, in relation to
the case of Conception Hernandez Mendez, alawyer, who allegedly received
death threatsbecause of her work as a defender of the rights of indigenous
peoples (see E/CN.4/1997/60/Add.l1para. 314).
Niaeria
142. For a detailed analysisof the situation of human rights in Nigeria, the
Special Rapporteurwishes to refer to the interim reporton the situation of
human rights in Nigeria, which was submitted to the General Assembly
(A151/538)and the final report,-whichthe Commission on Human Rights has
before it (E/CN.4/1997/62). Both of these reportswere submitted jointly with
the Special Rapporteur on extrajudicial,summary or arbitrary executions,
pursuant to Commission on Human Rights resolution 1996/79. Following their
forthcoming visitto Nigeria, the SpecialRapporteurs will submit areport to
the Commission onthe findingsof their mission.
Pakistan
Communicationto the Government
143. On 10 June 1996, the Special Rapporteur transmitted to the Government of
Pakistan an urgent appeal regarding alleged threats andacts of haraskment
against a lawyer, Asthma Jahangir, and her family, owing to her defence of a
21-year-oldwoman in a habeas corpus petitionfiled by the young woman's
father. The Special Rapporteur requested the Government to provide
Mrs. Jahangir and her family with adequate protectionand to investigate the
allegations.
144. On 26 July 1996, the Special Rapporteur addressed a letter to the
Government of Pakistan in response to the Government's communicationof
21 June 1996 (seeparagraph below), regarding the case of Ms. Asthma Jahangir.
The Special Rapporteur statedthat the incidents referredto in the
Government'sresponse seemed to refer to incidents which had occurred in 1995.
He thereforerequested the Government to providehim with information
regarding the threats that had occurred in 1996 referred to in his earlier
communication.
145. On 16 July 1996, the Special Rapporteursent a joint letter withthe
Special Rapporteurs on extrajudicial,summary or arbitrary executions and on page 3'7
the question of torture to the Governmentof Pakistan concerning the murder of
Mr. Nizam Ahmed, a former justiceof the Sindh High Court and member of the
Pakistan Bar Council, and his son Nadeem Ahmed. It was brought to the
attention of the Special Rapporteurs thatMr. Ahmed had received anonymous
death threats, prior to his murder,.in which demands were made that he'
withdraw a case that he had filedwith the Sindh High Court in Karachi. The
source indicated that althoughthese threats were reported to the authorities,
no steps were taken to investigate theallegations or to provide Justice Ahmed
with protection.
Communication from the Government
146. On 21 June 1996, the Government providedthe Special Rapporteur
with a reply to his letter of 10 June 1996 concerning the case of
Ms. Asthma Jahangir. The information providedby the Government referred to
an incident thathad occurred in 1995, in reaction to which the authorities
The Special Rapporteur was
had provided Ms. Asthma Jahangir with protection.
informed that additionalinformationregarding the case had been requested
'fromthe authorities in Pakistan.
observation
147. In his second report, the Special Rapporteurreferred to a challenge
before the Supreme Court to the constitutionalityof the appointment of ad hoc
judges to the Supreme Court (E/CN.4/1996/37,para. 201). The Supreme court,
after hearing lengthy arguments,issued what it considered a landmark decision
on 20 March 1.996. The Special Rapporteurwelcomes this decision which,
inter alb, asserted the independence ofthe judiciary with regard to the
appointment of judges. In effect, the judiciaryby this decision asserted the
power of appointment of the judiciary rather than of the executive, which was
the position previously.
Peru
-
Communications tothe Government
148. On 19 November 1996, the Special Rapporteurtransmitted an urgent appeal
to the Government of Peru, regardingthe attempt against the life of the
President of theConstitutional Tribunal,Mr. Nugent, on 8 November 1996.' The
Special Rapporteur expressed his concern about this information and requested
the Government to carryout exhaustive investigations, reminding the '
Government of its obligation to guarantee protection to judgeswho are put
under such pressure.
149. On 12 Deceniber1996, the Special Rapporteursent an urgent appeal to the
~overnkent of Peru, concerning disciplinarymeasures taken by the Supreme
Council of Military Justiceagainst a lawyer, Heriberto Benitez. Mr. Benitez,
had reportedlybeen suspended from office for five months, during which time
he would not be allowed to represent his clients. The measure was related to
his public statements concerning the compositionof the Supreme Council of
Military Justiceand, in particular, concerningthe fact that some members of
the Council were not lawyers and thus would not be familiar with the content
of the law. Mr. Benitez was reported to have made these statements inpage 38
connection with the detention and prosecution of his client, retired
General Robles, who was reported to have publicly stated that a paramilitary
group was responsible for an attack against a television stationin
November 1996. The Special Rapporteur was alsoinformed that Mr. Benitez had
been notified of the opening of criminal investigationsagainst him for his
statement regarding the members of the Supreme Council of Military Justice.
According to the information received,Mr. Benitez had previously been
detained for 24 hours on similar charges while working on the case of the
La Cantuta massacre. Thesource expressed fear that a similar situation would
occur again.
Communications from the Government
150. On 15 April 1996, the Government informed theSpecial Rapporteur about
the appointment of the first Ombudsman in Peru.
151. In conununications dated 3 October 1996 and 7 November 1996,the Special
Rapporteur was informed about the release of a number of innocent prisoners
who had been held in detention under anti-terrorismlegislation. Their
release was based upon recommendationsof the Ad Hoc Commission on Pardons,
which had been established to make recommendations to thePresident on
pardoning innocent detainees.
152. On 7 November 19.96,in response his communicationof 25 July 1995
concerning lawyer Tito Guido Gallegos (see E/CN.4/1996/37,para. 205), the
Government informedthe Special Rapporteur thatMr. Tito Gallegos had been
appointed as a judge of the High Court of the judicial districtof Puno by a
resolution of the National Councilof the Judiciary.
153. On 10 June 1996, the Special Rapporteur senta follow-up letter thanking
the Government of Peru for providing him with informationregarding the
protection measures taken with regard to the threats against
Judge Antonia Saquicuray Sgnchez and the human rights lawyer, Tito Guido
Gallegos (see E/CN.4/1996/37,paras. 205-207). He requested the Goveenment to
provide him with information on the results of the investigations. In
addition, the Special Rapporteur reminded the,Governmentof his communications
to which he had not yet received a reply, regarding the cases of
Margarita Chuquiuru Silva, of human rights lawyersof the Pro Human Rights
Organization (APRODEH)and of Lori Berenson (see E/CN.4/1996/37,
paras. 207-209) .
154. At the time the present report was finalized,no reply had been received
to that letter.
155. The Special Rapporteur would also like to refer to the report of the
Special Rapporteur on extrajudicial, summaryor arbitrary executionsin
relation to the case of a lawyer, GloriaCano Legua, who has reportedly been
threatened and harassed (E/CN.4/1997/60/Add.l1 para. 384).156. The Special Rapporteur would like to refer to the report of the Special
Rapporteuron extrajudicial,summaryor arbitraryexecutionsin relationto
the case of a lawyer, Ferdinand Reyes,who was reportedly killed on
12 February1996, supposedlyfor his criticismof governmentpolicy
(E/CN.4/1997/60/Add.lp Iara. 393 (f)).
Rwanda
157. The Special Rapporteurhas continuedto receivereports from the
United Nations HumanRights FieldOperationin Rwanda (HRFOR)on justice,
legal reform and institution-buildin gn Rwanda. In its report of
October 1996, HRFOR reportedthat while therehad beenpositive developments
in the past year (for example,the "Nationalawareness campaignon the
judicialsystem"was successfullylaunchedin October), there remained
concerns thatthere were serious shortcomings in the administration of
justice. Not onlywas there a serious shortageof judges, clerks and material
resources forthe courts, and a shortageof defence lawyers,but there had
also been seriousallegationsthat themilitary of Rwanda had acted in
contraventionof judicialorders.
158. On 23 January 1997, the SpecialRapporteur sentan urgent appeal,
jointly withthe SpecialRapporteuron the situationof human rights in Rwanda
and the SpecialRapporteuron extrajudicial, summary or arbitraryexecutions,
on behalf of DeogratiasBizimanaand Mr. Egide Gatanazi,both of whom had been
sentenced to deathafter the High Courtin Kibungo foundthem guilty of
genocideand crimes. The sourcealleged that the defendantshad no access to
legal counsel either before or during trial and that they were not given
adequate timeto prepare their defence. The source also reported that the
defendantswere booed and prosecutorsapplaudedduring the trial, without
interventionby the presidingjudge. Further,most of the judicialofficials
have received onlyup to four months' training and there were serious
questionsas to the independenceand impartialityof the judicialofficials
followingstatements bysome judicialand government officials that the
defendants shouldnot request legal counsel.
Tunisia
Communication tothe Government
159. On 22 May 1996, the SpecialRapporteur transmitted an vrgent appeal to
the Governmentof Tunisia regarding thecase of lawyer and human rights
defender NajibHosni, who on 22 May 1996had reportedlybeen convictedto
eight years' imprisonment. Accordingto the informationreceived,he had been
convictedby the Appeal Court of el-Kef, without having the right of defence,
since the 30 lawyerswho were assistinghim had leftthe hearing roomin order
to protest the refusal of the court to postpone the proceedings.The
postponementhad been requestedon 25 December1995 to allow the lawyers
adequatetime to prepare the defence. It was also reported that Mr. Hosni hadstated that he had not been fully informed about the details of the charges
against him. In addition, the source stated that he did not have the right to
appeal. It has been alleged that the trial might be linked to his work as a
human rights defender.
160. On 22 October 1996, the Special Rapporteur transmitted a letter to the
Government of Tunisia concerning the case of human rights defender and
parliamentarianKhgmais Chammari, who had reportedly received a five-year
prison sentence on charges of leaking secret information to foreign powers in
a case bearing on national security. Accordingto the information received,
Mr. Charnrnarhiad passed documentsto a European international lawyer
concerning thecase of Mr. Mouadda, leaderof the opposition SocialDemocratic
Party (MDS)who, in October 1995 was convicted to 11 years' imprisonmenton
charges of having relations with a foreign power. In addition, the Special
Rapporteurwas informed that Mr. Chammari and Mrs. Alya Chammari, his wifeand
a lawyer,were suffering acts of intimidation and threats from the police and
security forces, related to his activities on behalf of Mr. Mouadda. Further,
it was alleged that Mr. Chammari's imprisonment was the result of his
non-violentactivities in defence of human rights and civil liberties in
Tunisia.
Communicationfrom the Government
161. On 21 June 1996, the Government provided the Special Rapporteurwith a
reply in the case of Najib Hosni. The Government informedthe Special
Rapporteur that Mr. Najib Hosni had in fact had access to defence counsel,and
stated that the withdrawal of the lawyers during the proceedings hadbeen an
attempt to influence the court's decision. The Government further statedthat
the allegation that Mr. Hosni did not have the right to appeal was unfounded,
since under the Tunisian judicial criminal systemdecisions were subject to an
application forreview by the Court of.Cassation. In addition, the Government
stated that his detention was not linked to his activities as a human rights
lawyer,but based on specific acts punishable under ordinarylaw.
162. On 29 November 1996, the Government provided the Special Rapporteurwith
a reply concerning the case of Mr. Khemais Chammari. The Government informed
the Special Rapporteur thatMr. Chammari's conviction was not related to his
work as a defender of human rights and that no official complaints aboutthe
alleged threats and acts of intimidation and harassmenthad been received by
the authorities. The Government also stated that the files had been fully at
the disposal of the lawyers. The composition of the court had been changed at
the request of Mr. Chammari, and his right to be tried by an independentand
impartial tribunal had been fully respected. Lastly, the Special Rapporteur
was informedthat the Supreme Court, which has the competence to decide
whether it is necessary to postpone a case, which rarely occurs, had decided
that in this case it was not necessary to do so. The Government statedthat
the allegation that the defence lawyers hadnot had sufficient timeto prepare
the case was unfounded.
163. On 20 December 1996, the Government of Tunisia informed the Special
Rapporteur thatlawyer Najib Hosni, fdr whom an urgent appeal had been sent on page 41
22 May 1996 and who had been convictedto eight years' imprisonment forthe
falsificationof documentsand theirpossession,had been liberatedon
14 December 1996.
164. On 3 January1996, the SpecialRapporteurwas informedby the Government
of Tunisia that Mr. KhemaisChammarihad beenconditionallyreleased from
prison, for humanitarianreasons.
Turkev
Communication to the Government
165. On 16 February1996, the SpecialRapporteurtransmittedto the.
Governmentof Turkeyan urgent appealconcerningthe reportedtrial of
Turgat Inal, the former Chairmanof the BalikesirBar Association. According
to the informationreceived,he had been broughtto trial on charges relating
to an articlehe had written which was include in a book publishedin
i 1
June 1995 by the Human Rights Foundatioonf Turkey (HRFT). Mr. Inal, together
with thenine members of the executiveboard of HRFT, were reportedlycharged
with "insulting the lawo sf the Republic".The Special Rapporteur expressed
concernthat theprosecutionof Mr. Inal for publishing his criticismof
Turkishlaw might interfere with his freedomof opinionand expression. The
SpecialRapporteur's viewis that this would appearto be an unwarranted
restriction.onthe dutyof lawyersto take part in public discussionsof
matters concerning the law.
166. On 7 May 1996, the Special Rapporteur transmitte an urgent appeal to
the Governmentof Turkey concerning Mr. HuseyinUmit, a lawyer andboard
member of the Hakkari branchof the TurkishHuman Rights Association (HRA).
According tothe information receivedM ,r. Umit was detainedwithout an arrest
warrant on 29 March 1996, and releasedafter severalhours. During his
detentionhis house and offices of the HRA were searched. The source claimed
that those steps weretaken againstMr. Umit solely becauseof his activities
as a human rights lawyer. In addition,since his release,Mr. Umit was
reported tohave received deaththreats.
' 1 Communication from the Government
167. On 4 June 1996,the Government provided the Special Rapporteurwith a
reply tohis communicationof 16 February 1996concerningthe case of
Mr. Turgut Inal. The Government informed the Special Rapporteur tha' tthecase
was 'underway". The Government expressed its view that excerptsof articles
publishedby Mr. Imut showedthat thearticle openly attemptedto degradeand
insult Turkishlaw and theConstitution. Thus, in accordance with
article 159/3 of the TurkishPenalCode, "thosewho vilify the laws of the
Turkish Republicor the decisionsof the TurkishGrand National Assemblyshall
be punished". The trialwas, in the Government'sview, not aiming at the
exerciseof the freedomof expression concerning the law, the administration
of justiceor the promotion and protectioo nf human rights. Furthermore,the
Governmentstated that the lawyer had not compliew dith Principle 23 of the
Basic Principles on the Roleof Lawyers: "in exercising theserights, lawyers
shall always conduct themselves in accordancewith the law and the recognized
standardsand ethics of the legal profession".page 42
168. On 8 July 1996, the Government provided a reply to the Special
Rapporteur's communication of 7 May 1996 concerningthe case of
Mr. ~useyin Umit. Grounds for the detention of Mr. Umit were found in
documentary evidence,gathered during operations conducted by the security
forces in the neighbouring mountainson 27 March 1996, which indicated that he
had provided financialassistance to the terroristorganization PKK. he
searches, however, had provided no evidence pointing to the alleged crime.
The Government further stated that Mr. Umit had never been arrested, and that
he had been released after interrogation.
Request for a mission
169. On 28 June 1996, in a letter to the Government of Turkey, the Special
Rapporteur reiteraLed his interest in undertaking a mission to Turkey, as
previously expressedin his letter of 16February 1996. At the time the
present report was finalized,no reply to this request had been received from
the Government.
United Kinadom of Great Britain and Northern Ireland
Enqland and Wales
170. In his second report, the Special Rapporteur expressed concernover
comments by ministers and/or highly placed governmentpersonaliti'es on
decisions of the courts.made on judicial reviewof administrative decisionsof
the Home Secretary (E/CN.4/1996/37,para. 226).
171. Arising from this controversy,the relationshipbetween the judiciary,
the legislatureand the executive was the subject of a lively six-hour debate
in the House of Lords on 5 June 1996 on a motion moved by the Shadow Lord
Chancellor (Lord Irvine of Lairg). The Special Rapporteur was present in the
House of Lords to listen to the debate. Thethrust of the debate was the role
of judges in the development ofthe law, their independenceand the extent to
which judges should participatein public discussionof developments in the
law.
172. In the course of the debate, the Lord Chancellor (LordMackay of
Clasfern) said, on the issue of the independenceof the judiciary:
"We also have a judiciary whose independence, as individual judges,from
one another and from any improper influence,is also superb and '
complete. I certainly do not know of anyone who has successfully
attempted - or indeed has attemptedwithout success - to influence the
decisions of the judges in the cases committed tothem. The essence of
judicial independence is that the judge trying the case is free to
decide according to his judgement in the light of the existing law.
That applies to the individual case and that is the essence of judicial
independence.
The independence of the judiciary - in agreement for example, with my
noble and learned friend, Lord Simon of Glassdale - is an important part
of the checks and balances of our constitution. The jurisdiction which
the judges exercise right across theboard is fundamental to the rule of page 43
law. I agree with the view that the rule of law is a deeper concept
than just that of law and order." (Hansard1996, vol. 572, No. 100,
p. 1308)
173. There was consensus among the Lords that it was quite proper, and some
like Lord Woolf, the Master of the Rolls, said that it was fundamental, that
judges and lawyers should be able to participate in public discussion of
developments in the law. The Lord Chancellorsaid: "Public lectures have
been a well authenticatedway of doing that overmany yearsN.
174. The Shadow Lord Chancellor expressed hispersonal hostility to any
legislative attemptto restrict judicialreview, which he believed airectly
promoted the rule of law. He assured the House that "The role and
independenceof the judiciary will be vigorously upheldby the next Labour
government". (Hansard1996, vol. 572, No. 100, p. 1314).
175. On 6 June 1996, the Special Rapporteur called on the then newly
appointed Lord Chief '~ustice,Lord Thomas Bingham, at his Chambers in London.
The Lord Chief Justice assured the Special Rapporteur that he regarded
judicial independence as firmly entrenchedin the United Kingdom. He further
assured him that judges did not feel themselvesunder any pressure in relation
to judicial decisions.
176. The Special Rapporteur welcomesthe expressionsof commitment by the
Lord Chancellor and the Shadow Lord Chancellor and the assurance of the
Lord Chief Justice. In this regard, the SpecialRapporteur has not received
any specific allegations that the independenceof any particular judge was
threatenea. His concern was more with regard to the threat to the
institutionalindependence of the judiciary. From the tone of the House
of Lords debate, the Special Rapporteur is confidentthat any legislative
attempt to restrict judicial reviewwill be strongly resisted, at least in
that House.
Northern Ireland
177. In his second report, the Special Rapporteurmade reference to.
information receivedwith regard to difficultiesexperienced by "high risk"
prisoners in obtaining accessto legal advice/representation(E/CN.4/1996/37,
para. 229). The Special Rapporteurcontinued to receive information in this
regard. In the latest submissionof informationto the Special Rapporteur in
December 1996 by British-IrishRights Watch, it was alleged, inter alka, that
there were attempts to restrict lawyers' access to their clients in
Northern Irelandpolice stations and English prisons;to failure of the
judiciary and of government appointed functionaries to uphold lawyers1 rights;
to proposals that wouldallow clandestinesurveillanceof lawyers' offices.
178. In response to the above-mentionedreport from British-Irish Rights
Watch, the Independent Commissioner for the HoldingCentre for
Northern Ireland submitted a memorandum dated17 January 1997 to the Special
Rapporteur. The Independent Commissioner expressedthe view, inter alia, that
he might favour "an independent investigation intothe nature and extent of
any intimidationof defence solicitors". The Special Rapporteur also receiveda letter, dated31 January 1997, from the Chairman of the General Councilof
the Bar of Northern Ireland in response to the allegations submitted to the
Special Rapporteur bythe British-Irish Rights Watch.
179. In the light of the latest submission fromBritish-Irish Rights Watch
and the response from the Independent Commissioner andthe Chairman of the
Northern IrelandBar Council the SpecialRapporteur is considering, subject to
the availabilityof resources, seeking the permission of the Government of the
United Kingdom to visit Northern Ireland for an in situ investigationinto the
allegationshe has received on the situation in Northern Ireland
United States of America
180. On 2 April 1996, the Special Rapporteursent an urgent appeal to the
Government of theUnited States of America concerningJudge Harold Baer Jr. of
the FederalDistrict Court of Manhattan. According to the source,
PresidentClinton and Senator Bob Dole had called for the resignation and
impeachment ofJudge Baer as a result of his ruling in a drugs-relatedcase.
The Special Rapporteur expressed his concernthat, if true, the allegation
would amount to executive intimidation of the independence of the judiciary.
181. On 17 June 1996, the Special Rapporteur transmittedan urgent appealto
the Governmentconcerning statements made andactions taken by Governor
George E. Pataki of the State of New York. According to the information .
received,Governor Patakihad pressured District-AttorneyRobert T. Johnson to
seek the death penalty in a murder case in which the victim was a police
officer. Itwas furthermore alleged that Governor Pataki removeM dr. Johnson
from the case pursuant to a State law that grants the Governor the power to
reinovedistrict attorneys in specific cases, a law which was only used in
cases where a prosecutor or his office asked.to be excused from a case, or had
been suspended formisconduct.
Communication fromthe Government
182. On 21 May 1996, the Permanent Representativeof the United States
of America provided areply to the Special Rapporteur's cornmunication'of
4 April 1996. The Special Rapporteurwas informed that the President had at
no time called for the resignation of Judge Baer. According to the Permanent
Representative,the matter was addressed in a letter from the Counsel to the
Presidentto several members of Congress who had expressed theirdisapproval
of the decision by Judge Baer to suppress evidencein a drug traffickingcase
and had demandedthat the President seek his resignation. The letter states:
"The President has made clear that he believes Judge Baer's decision is
grievouslywrong, not only in its results but also in its totally
unjustified criticism of the New York City Police and its suggestion
that it is acceptable behavior for anyone to run from the police. The
President'sviews on this matter are represented by the U.S. Attorney
for the Southern District, his chief law enforcement officerin
Manhattan, who brought the prosecution in the first place and against
whom Judge Baer ruled. Immediately afterthe decision, the President
instructedme to ascertain that the U.S. Attorney was prepared to
challenge the judge's decision vigorously. The U.S. Attorney is in fact vigorouslychallenging theJudge'sorder. And, it is onlybecause of
the U.S. Attorney'spursuit of this case that Judge Baer eventually
agreed to rehear themotion andconsideradditional police testimony.
The Presidenthopes that Judge Baer will reversehis earlier decision.
If he does not, the Presidentwill direct theJustice Departmentto
appeal the decision.
The properway for the Executive Branch to contest judicial decisions
with whichit disagrees isto challenge themin the courts,exactlyas
the ClintonAdministrationis doingin this case. The President
supportsthe independenceof the federaljudiciary, which isestablished
by the Constitution. Althougcomments inrecent press reports may have
led someto concludeotherwise,the Presidentbelieves that the issue
now beforeJudge Baer shouldbe resolved inthe Courts."
Observations
183. The SpecialRapporteur welcomes the statementsmade by the Presidentin
support of the independenceof the judiciaryand is in full agreement withthe
assertionthat the proper wayfor'theExecutiveBranch to contest judicial
decisionswith which it disagreesis to challengethem in the appellate
courts. Nevertheless,the Special Rapporteur is of the view that harsh,
public criticismof a judicialdecisionby the Executive Branch,particularly
in a politicallycharged environment in which'prominentlegislatorsand
poli.ticianasre callingfor the resignation of the particular.judgewho has
rendered a controversiad lecision,can have a chilling effect on the
independenceand impartialityof the judiciary. In this regard, theSpecial
Rapp0rteu.rnotes that subsequently JudgeBaer did in fact reversehis earlier
decision,thus causingconcernamong legalcirclesthat thesame judgemay
have done a disservice to judicial independencbey reversinghis own decision
under externalpressure.
Uzbekistan
Communicationto the Government
184. On 23 April 1996, the SpecialRapporteurtransmittedan urgent appealto
the Governmentof Uzbekistanconcerningthe reportedharassmentby State
securityorgansagainstMrs. Paulina Braunerg, an attorneyand board memberof
the HumanRights Societyof Uzbekistan. On 14 March 1996, Mrs. Braunerg's
house wasreportedlysearchedby security agents, who confiscatednewspapers
which reportedlypublished outside Uzbekistan. On the same day, she was
reportedly interrogated about these newspapea rs,well as about her
participationin a human rightsconferencein 1995 in Kazakstan. Accordingto
the information received,she was again interrogatedo ,n 15 March 1996, about
her contacts withhuman rightsactivists and organizationa sbroad,but no
officialchargeswere brought againsther.
Communication from the Government
185. On 15 May 1996, the Governmentprovidedthe SpecialRapporteurwith a
reply to his communication of 23 April 1996 concerningthe interrogationof
Mrs. Paulina Braunerg. The Governmentinformedthe SpecialRapporteurthatduring an authorized searchof Mrs. Braunerg'shouse in connection with the
investigation of an ordinary crime, the authorities found literature
distorting the situation in Uzbekistan. As a result, on 16 March 1996,
Mrs. Braunerg was invited to the National Security Service (SNB) for an'
interview, during which she was reported to have expressed her regretabout
the incident. She was also said to have left the literature in the office of
the SNB. The Government reportedto the Special Rapporteurthat the criminal
investigationof the ordinary crime was continuing.
CONCLUSIONSAND RECOMMENDATIONS
186. This is the third year of the Special Rapporteur'smandate. Recalling
the historicalbackground to this mandate and the circumstances leading to its
creation by the Commission on Human Rights,the Special Rapporteur is
convinced that, though attacks on the independenceof judges and lawyers have
not diminished, there is, today, greater awarenessof the importance of the
independence and impartialityof the judiciaryand the independence of lawyers
for constitutional government undera democracy based onthe rule of law.
This is evidenced by the large amount of correspondence thatthe Special
Rapporteur has received pertaining to his mandate in the past year, much of
which, owing to inadequate resources, it has not been possible to process,
analyse and follow up. It is further evidencedby the various invitations the
Special Rapporteur received toparticipate in legalworkshops, seminars and
conferences.
187. The Special Rapporteur's participationand involvement in these meetings
and the disseminationof his addressesand interviews bythe media in the
different regions have contributed to a better understanding of his mandate
and its significancein the global human rights agenda.
188. The extent of implementationof the Basic-Principleson the Independence
of the Judiciary and the Basic Principleson the Role of Lawyers, the two
leading United Nations instruments spellingout minimum standards to be
applied by Member States for the realizationof an independent justicesystem,
is a matter of paramount considerationunder this mandate. To this end, the
Special Rapporteur appreciates the survey undertaken by the Crime Prevention
and Criminal Justice Divisionin Vienna on the implementationof the Basic
Principles on the Independenceof the Judiciary. The information collated
from the responsesof Member States and bar associations is of relevance for
gauging the state of judicial independencein countries and addressing
problems associatedwith the implementationand the adequacy of the Bakic
Principles. The Special Rapporteur appealsto Member States and bar
associations which have not responded, to do so without delay. The Special
Rapporteur intends towork closely with the Division in Vienna in this
exercise.
189. The Special Rapporteurhas learnt that the Economic and Social Council,
in its resolution 1996/16, decided that the Commission on Crime Prevention and
Criminal Justice should to consider thereport of the Secretary-Generalon the
desirability of establishingan inter-sessionalworking group at its sixth
session to examine the reports on the use and application of standards and
norms in crime prevention and criminaljustice in more detail. He has also
learnt that a similar survey on the implementationof the Basic Principlesonthe Role of Lawyers and the Guidelines on the Role of Prosecutors is
anticipated. Pending the survey on the lattertwo standards, the Special
Rapporteur wil.1discuss with the Division the feasibilityof the establishment
of a working group especiallyto review the results of the survey on the Basic
Principles on the Independenceof the Judiciary.
190. From the informationgathered in the past threeyears, it is clear that
attacks on the independenceof judges and lawyers are not confined to the
underdeveloped and developing countries. The Special Rapporteur has noted in
his previous report and in the present report, that developed countries too
are not spared these problems. Hence, the threat to the independenceof
judges and lawyers is universal and needs constantinternational vigilance.
191. This thematic mandate is wide in scope. To date, not all its parameters
have been examined. With greater awarenessthere will be greater
expectations, amongthem those of the emerging new democracies,which may seek
advice on specific issues for the structuringof independent justice systems.
Further, the mandate coversdifferent legal systems. And materials submitted,
all of which need to be analysed and respondedto, may be in different
languages. Dksappointingthose who approach the SpecialRapporteur, on
grounds of want of resources,would be a negation of the aspirations inherent
in the terms of this mandate.
192. The Special Rapporteurviews the project currently beingundertaken by
the Activities and Programmes,Branchof the High Commissioner/Centrefor Human
Rights for the preparation of a manual for the trainingof judges and lawyers
as important. Sucha manual would complementsignificantlythe work of the
Special Rapporteur. As a standard global trainingmanual, it would have to be
acceptable in all regions of the world. The project may require additional
funding to organize a meeting of experts, drawn from all the regions, of
sufficient durationto enable them to study the draft in a meaningful way and
to approve it. The Special Rapporteur trusts that such fundingwould be
forthcoming.
193. In the two previous reports,the Special Rapporteur referred toseveral
theoretical issuesof special importance whichhe strongly felt shoul'dbe
studied and analysed. However, owing to lack of resources -both human and
financial - the Special Rapporteurhas not been able to pursue those research
,programmes.
194. Although some Governments havebeen slow in responding to his '
comunications and some have completely ignoredthem, the Special Rapporteur
has found that a majority of Governments do respond to his interventions and
urgent appeals. In some cases, the Special Rapporteur's intervention and
involvement had a salutary effect. This is significant for the mandate. The
cooperation extended by non-governmental organizations, particularly the
international'organizations,has been significant.
195. The Special Rapporteuris convinced that there is a very real need for
the continuation of the monitoring mechanism envisaged under the mandate.
With adequate resources, thereis considerable potential forthis mandate to
contribute in a positive and meaningfulway towardsthe realization of the
Vienna Declarationand Programme of Action. An independent judicialsystem isthe constitutionalguarantee of all human rights. The right to such a system
is the right that protects all other human rights. Realization of this right
is a sine qua non for the realization of all other rights. This mandate,
therefore,should be accorded its rightful place in thehuman riphks agenda rf
this Commission.
196. The Special Rapporteur concludes thisthird report by emphasizing and
reiteratingagain that there can only be meaningful and constructive
realizationof what is expected of this mandate if the Special Rapporteur is
provided with adequate resources, both human andfinancial. Humanresources,
at least some, must be permanent for purposes of continuity, and not temporary
and transient.UNlTED
NATIONS
Economicand Social Distr.
GENERAL
Council E/CN.4/1998/39
12 February 1998
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS,
Fifty-fourthsession
Item 8 of the provisionalagenda
QUESTION OF THE HUMAN RIGHTS ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT
ReDort of the S~ecial RaDDorteur on the inde~endenceof
judaes and lawvers.Mr. Param Cumaraswamv
GE.98-10499 (El CONTENTS
Pase
I . THE MANDATE .....
I1 . METHODSOFWORK ................. 7
I11 . ACTIVITIES OF THESPECIAL RAPPORTEUR ....... 8 . 27
A . Consultations ................ 9 . 12
C . Communicationswith Governments ....... 15 . 19
D . Cooperationwith intergovernmectaland
non-governmentalorganizations ........ 20 . 21
E . Other UnitedNations procedures and bodies . . 22 . 26
F . Promotionalactivities ............ 27
IV . ESTABLISHMENT OFAN INTERNATIONALCRIMINAL COURT . 28 . 30
COUNTRY SITUATIONS ................
A. Introduction ................. 31- 32
B . Situations in specific countriesor
territories ................. 33
Bahrain .................. 33- 34
~angladesh ................ 35 . 37
Belarus .................. 38- 39
Bolivia .................. 40- 41
Brazil .................. 42 . 44
Cambodia ................. 45 . 48
Colombia ................. 49 . 55
Croatia .................. 56- 57
Cuba ............... :. .. 58- 64
Egypt ................... 65- 67
France .................. 68 . 69
Georgia .................. 70- 73
India ................... 74 . 85
Indonesia ................. 86 . 9'5
Iran (Islamic Republicof) ........ 96 . 98
Kenya ................... 99 . 103
Lebanon .................. 104 . 105
Malaysia .................. 106 . 116
Mexico .................. 117-119
Nigeria .................. 120
Pakistan ................. 121 . 131 CONTENTS continued)
Pacae
Papua New Guinea ............. 132 . 133
Peru ................... 134 . 142
................
Philippines 143 . 148
Rwanda .................. 149-152
SouthAfrica ............... 153 . 156
Spain ................... 157-159
Switzerland ................ 160 . 163
Tunisia .................. 164 . 167
Turkey .................. 168-174
Venezuela ................. 175 . 176
Yugoslavia ................ 177 . 178
V . CONCLUSIONS AND RECOMMENDATIONS ......... 179 . 189
A . Conclusions ................. 179 . 184
B . Recommendations ............... 185 . 188 I. THE MANDATE
Introduction
1. The present report is submittedpursuant to Commission on HumanRights
, resolution1997/23of 11 April 1997. This reportis the fourthannual report
to the Commissionon Human Rightsby Mr. Param Cumaraswamysince the mandate
was established bythe Commissionin its resolution1994/41of 4 March 1994,
renewedby resolution 1997/23 and endorsedby the Economic and Social Council
in itsdecision 1997/246of 22 July 1997 (seealso E/CN.4/1995/39,
~/~~.4/1996/57 and ~/~~.4/1997/32).
2. Chapter I of the presentreportcontainsthe terms of referencefor the
dischargeof the mandate. ChapterI1 refers to themeLhods of work appliedby
the Special Rapporteur in thedischargeof the mandate. In chapter 111, the
SpecialRapporteurpresents an account of the activitiesundertaken withinthe
frameworkof his mandate inthe pastyear. Chapter IV deals with the
establishmentof an international criminac lourt. ChapterV containsbrief
summariesof urgent appealsand communicationsto and from theGovernments,
alongwith the observationsof the SpecialRapporteur.
Terms of reference
3. At its fiftieEhsession,the Commissionon HumanRights, in
resolution1994/41,noting boththe increasingfrequencyof attackson the
independenceof judges,lawyersand court officialsand the link which exists
between theweakeningof safeguardsfor the judiciary andlawyersand the
gravityand frequencyof violationsof human rights,requestedthe Chairmanof
the Commissionto appoint, for a period of three years, a special rapporteur
whose mandate wouldconsistof the following tasks:
(a) To inquire intoany substantial allegations transmitte to him
(...)and report hisor her conclusions thereon;
(b) To identify and record not only attackson the independenceof the
judiciary,lawyersand court officials but also progress achieved in
protectingand enhancing theirindependence,and makerecommendations
includingthe provisionof advisoryservicesor technical assistance when they
are requested bythe Stateconcerned;
(c) TO study, for the purposeof makingproposals, important and
topicalquestionsof principle witha view to protecting and enhancing the
independenceof the judiciaryand lawyers.
4. Without substantially changingthe mandate, theCommissionendorsed in
resolution1995/36the decisionof the Special Rapporteurto use, beginning
in 1995, the shorttitle "Special Rapporteuo rn the independenceof judges and
lawyers".
5. In resolutions1995/36,1996/34and 1997/23,the Commissionon Human
Rights took note of the annual reportof the SpecialRapporteur,expressingappreciation for his workingmethods,and requestedhim to submit another
annual reporton the activities relatint go his mandate to the Commissionon
Human Rights.
6. Several resolutions adopte by the Commissionon Human Rightsat its
fifty-thirdsessionare alsopertinentto the mandateof the Special
Rapporteurand have been taken into consideration in examiningand analysing
the informationbroughtto his attentionwith regard to the different
countries. These resolutionare:
(a) Resolution 1997/16on the rightsof persons belonging to national
or ethnic,religiousand linguistic minoritiesi ,n which the Commissioncalled
upon all specialrepresentatives, special rapporteurs and working groupsof
the Commissionto continueto give attention, within their respective
mandates,to situations involving minorities;
(b) Resolution 1997/27on the promotionof the right tofreedomof
opinionand expression,in which theCommission invited onca egain the working
groups,representatives and specialrapporteursof the Commissionon Human
Rights to payattention,within the frameworo kf their mandates,to the
situationof personsdetained,subjectedto violence,ill-treatedor
discriminatedagainst forhaving exercised the rightto freedomof opinionand
expressionas affirmedin the Universal Declaratioo nf Human Rights, the
International Covenano tn Civil and Political Rightsand other relevanthuman.
rights instruments; and invitedthe workinggroups, representatives and
specialrapporteursof the Commission,within theirmandates, totake note of
any deteriorationin theright to freedomof expression;
(c) Resolution 1997/28on hostage-taking, in which theCommission
urged allthematicspecialrapporteursand workinggroups to address,as
appropriate, theconsequencesof hostage-takingin their forthcomingreports
to the Commission;
(d) Resolution 1997/37on human rightsand thematicprocedures,in
which the Commissioninvitedthe thematicspecialrapporteurs and working
groupsto: (i)make recommendations for the avoidanceof human rights
violations; (ii)follow closely the progres made by Governmentsin their
investigations carried outwithin their respectivemandates; (iii)continue
close cooperation with relevant treaty bodi and countryrapporteurs;
(iv)include intheir reports informatiop nrovidedby Governmentson follow-up
action, aswell as their own observationsthereon,includingin regard to both
problems andimprovements, as appropriate;(v)includeregularly intheir
reportsgender-disaggregated data and to address the characteristics and
practiceof human rightsviolationsunder their mandates that are specifically
or primarily directed againstwomen, or to which women are particularly
vulnerable,in order to ensurethe effective protection of their human rights;
requested the thematic special rapporteu and working groupsto includein .
their reports commentson problemsof responsiveness and the result of
analyses,as appropriate,in order to carry out their mandates even more
effectively, andto includealso in their reportssuggestions as toareas
where Governmentsmight request relevant assistance throut ghe programmeof
advisory services administered b the Office of the High Commissionerfor
Human Rights;and suggested thatthe specialrapporteurs, representatives,expertsand chairpersonsof workinggroups of the specialproceduresof the
Commissionon Human Rights considerhow those mechanisms could make available
informationon the particular situation of individualsworking for the
promotion and protection of all human rightsand fundamentalfreedomsand how
theirprotectioncould be enhanced,taking into account the ongoing
deliberationsof the relevantworking groupof the Commission;
(e) Resolution 1997/42 on human rightsand terrorism,in which the
Commission urgedall thematic special rapporteursand working groups to
address,as appropriate,the consequencesof the acts, methods and practices
of terroristgroups, in their forthcoming reports tothe Commission;
(f) .Resolution1997/43 on integratinghuman rights of women throughout
the United Nationssystem, inwhich theCommission encouraged the
strengtheningof cooperationand coordinationamong allhuman rights treaty
bodies, special rapporteurs,specialproceduresand other humanrights
mechanismsof the Commissionand the Sub-Commission on Prevention of
Discriminationand Protectionof Minorities,and requestedthat they regularly
and systematically take a gender perspectiveinto account in the
implementationof their mandates,including information and qualitative
analysisin their reportson violationsof the human rights of women;
(g) Resolution 1997/46 on advisory services, technicaclooperationand
the VoluntaryFund for TechnicalCooperationin the Field of Human Rights, in
which the Commissioninvitedrelevant UnitedNationstreaty bodies, special
rapporteursand representatives, as well as workinggroups, to continueto
includein their recommendations, whenever appropriate,proposals for specific
projects to be realized under the programmo ef advisoryservicesand technical
cooperationin the field of human rights;
(h) Resolution 1997/62 on human rightsin Cuba, in which the
Commissioninvitedthe SpecialRapporteuron the situationof human rights in
Cuba and the existingthematicmechanismsof the Commissionto cooperatefully
and exchange informatioa nnd findingson that situation;
(i) Resolution 1997/69 on comprehensive implementatioo nf and
follow-upto the Vienna Declaration and Programmeof Action, in which the
commissioncalledupon all special representatives, specia rapporteurs,
independentexpertsand thematicworkinggroupsof the Commissionto take
fully into account the recommendationscontained inthe ViennaDeclarationand
Programmeof Action within their respectiv mand'ates;
(j) Resolution 1997/75 on human rightsand mass exoduses, inwhich the
Commission invited the specialrapporteurs,specialrepresentativesand
working groups of the Commissionand the UnitedNations human rightstreaty
bodies, acting withintheir mandates, toseek information, where appropriate,
on problems resultingin mass exodusesof populationsor impeding their
voluntary returnhome and, where appropriate, to includesuch information,
togetherwith recommendationsthereon, in their reports,and to bring such
informationto the attentionof the High Commissionerfor HumanRights for.
appropriate actionin fulfilmentof her mandate,in consultation withthe
United Nations High Commissionerfor Refugees; (k) Resolution1997/78on the rightsof the child, inwhich the
Commission,recommendingthat, within their mandates, all relevanthuman
rightsmechanismsand all other relevantorgans andmechanismsof the
United Nations system andthe supervisorybodies of the specialized agencies
pay attentionto particular situations in which children arein danger and
where their rights are violated and that they take intoaccount the work of
the Committeeon the Rightsof the Child, took various decisionswith respect
to the situationof childrenin various circumstancesof difficulty.
11. METHODS OF WORK
7. The Special Rapporteur, inthe fourthyear of his mandate, continued
following the methods of work describedin the first report of his tenure
(E/CN.4/1995/39, paras. 63-93).
111. ACTIVITIES OFTHE SPECIAL RAPPORTEUR
8. The following sections give an accountof the activitiescarried out by
the SpecialRapporteurin the implementation of the mandate entrustedto him
by the Commissionon Human Rights.
A. Consultations
9. The Special Rapporteur visiteGdeneva for his first roundof
consultations from 1 to 8 February 1997 in order to finalizehis reports to
the Commission. He heldconsultationswith representatives of the Permanent
Missionsof Belgium, China, India and Nigeria.
10. He visited Genevafor his second round of consultations from 24 March
to 8 April 1997 in order to present his report tothe Commissionat its
fifty-thirdsession. During this period the Special Rapporteurmet with
representativesof the Latin AmericanGroup, the Western Group and the Asian
Group and other regional groupsto brief them onhis work as Special
Rapporteurand to answer any questions theymight have. He also held
consultations with representative of the Governmentof Nigeria. In addition,
he held a briefing for interestednon-governmental organizationa snd also met
individuallywith severalnon-governmentalorganizations.
11. The Special Rapporteur visiteG deneva for his third round of
consultations from 20 to 23 May 1997 andto attendthe fourthmeeting of
special rapporteurs/representatives, experts and chairmenof working groupsof
the special procedures of the Commissionon Human Rightsand of the advisory
servicesprogramme,which was heldfrom 20 to 23 May.
12. In conjunction withhis missions to Belgiumand the United Kingdom,the
Special Rapporteur stopped over in Genevafrom 31October to 7 November 1997
for consultations.Again, in conjunctionwith his visit to New York, the
Special Rapporteur stoppei dn Geneva from 22 to 29 November1997 for further
consultations.13. During 1997, the Special Rapporteur undertooa k field missionto
Belgium (14to 18 October 1997) followedby a missionto theUnited Kingdom
(20to 30 October 1997). The SpecialRapporteur'sreportson these missions
containing hisfindings,conclusionsand recommendations can be found in
addendato the present report.
14. During the period underreview the SpecialRapporteur informed.the
Governmentsof Indonesia and Tunisia of his wish tocarry outan in situ
investigation. He reminded the Governmeno ts Pakistanand Turkey of his
previous requests to undertakea mission to those countries.
C. Communicationswith Governmerl-
15. During the period under review,the SpecialRapporteur transmitted
18 urgent appealsto the following12 States: Bangladesh,Colombia, Egypt,
India,Mexico, Pakistan(4),Peru, Philippines(21,Tunisia, Turkey(3),
Venezuelaand Yugoslavia.
16. Seekingto avoid unnecessary duplicatioo nf the activitiesof other
thematicrapporteursand country-specific 'rapporteurs,theSpecial Rapporteur
has joinedduring the past year with other special rapporteurs and working
groups to transmitseven urgent appealson behalf of individualsto the
Governmentsof the seven following countries: Bolivia, together wi the
SpecialRapporteuron extrajudicial,summaryor arbitrary executions on
6 March 1997;Brazil, jointly withthe SpecialRapporteuron extrajudicial,
summaryor arbitrary executions on 20 June 1997; Colombia, togetherwith the
SpecialRapporteuron extrajudicial,summaryor arbitrary executions on
17 July 1997; India, jointly withthe Special Rapporteur on extrajudicial,
summaryor arbitrary executions on 13 June 19.97;theIslamic Republicof Iran,
together with the Special Representativeon the situationof human rights in
Iran, the SpecialRapporteuron the promotionand protectionof the right to
freedomof opinion and expressionand the SpecialRapporteuron extrajudicial,
summaryor arbitrary executions on 2 July 1997; the Philippines,together with
the WorkingGroup on Enforcedor InvoluntaryDisappearances;and Rwanda,
jointlywith theSpecial Rapporteur on torture,the Special Rapporteur on the
situationof human rightsin Rwanda and theSpecial Rapporteur on
extrajudicial, summary or arbitrary executionson 23 January 1997.
17. The SpecialRapporteur transmitted 26 communicationsto the
following18 Governments: Bahrain,Brazil, Colombia,Croatia, France,
Georgia,India (4), Indonesia (21,Kenya (2),Lebanon,Malaysia (2),
Mexico, Pakistan, Papua New Guinea, Philippines(2),Rwanda, Spainand
United Kingdom (2).
18. The Special Rapporteur has also joined withother special rapporteursto
transmitthree communicationsto theGovernmentsof the followingthree
countries: Switzerland, together with the Special Rapporteuo rn torture
on 13 June 1996;Tunisia, togetherwith the Special Rapporteuo rn the
promotionand protectionof the right tofreedomof opinionand expressionon 4 December 1997; Turkey, togetherwith theSpecial Rapporteur on the
promotionand protectionof the rightto freedomof opinion and expression
on 7 October 1997.
19. The SpecialRapporteur received repliet so urgent appealsfrom the
Governmentsof the followingeight countries: Bangladesh, Belarus, Egypt,
India, Pakistan,Peru (6), Tunisia andTurkey. Replies to joint urgent
appealswere received from the Governmento sf India and the IslamicRepublic
of Iran. Repliesto communicationswere receivedfrom the Governmentsof the
following12 countries: Colombia (41,Croatia, Cuba,Georgia (11,India (5),
Indonesia,Kenya, Malaysia, Mexico, Philippines,Spain and UnitedKingdom (2)
Repliesto joint communicationswere received fromthe Governmentsof
Switzerland(2)and Turkey. Other communications were receive from the
Governmentsof Bahrainand Peru (2).
D. Coonerationwith intersovernmental and
non-qovernmentalorsanizations
20. The SpecialRapporteur continued his dialogue with intergovernmenta and
non-governmental organizationsin the implementation of his mandate. The
Special Rapporteur thankt shese organizations for their cooperatia ond
assistanceduring theyear. '
21. In its previous correspondence with the SpecialRapporteur,the
World Bank add'ressedits concernat the incidenceof corruptionin the
judiciary,particularlyin developing countries.Of late, the Special
Rapporteurhas been receiving informatioo nfa general nature of such
corruptionin some countries. The Special Rapporteur will liaise wit the
World Bank on this issueto considerthe feasibilityof drawing up a programme
of cooperationin thisarea.
E. Other United Nations~roceduresand bodies
1. Coo~erationwith snecialrannorteursand workinq
qrouns of the Commissionon Human Rishts
22. The SpecialRapporteur continued to work closelywith the mandate of
other specialrapporteurs andworkinggroups. As previouslyindicated,the
SpecialRapporteur,in order to avoid duplications, whereappropriate has
joined in interventionswith other specialrapporteurs and working groups.
The Special Rapporteur has also soughta joint mission to Tunisia with the
SpecialRapporteuron the promotionand protectionof the right to freedomof
opinion and expression. The Special Rapporteur continuedto make referenceto
reportsof other specialrapporteursand working groups on issues relevantto
his mandate.
2. Coo~erationwith the Crime Preventionand
Criminal JusticeDivision
23. In his third report(E/CN.4/1997/32, paras. 26-29), the Special
Rapporteur referred to the importanceof the work doneby the Crime Preventionpage 10
and CriminalJustice Divisionin overseeing theimplementationof the Basic
Principleson the Independenceof the Judiciaryand theneed for the Special
Rapporteur towork closelywith that Division.
24. The SpecialRapporteur could not attend th Sixth Sessionof the
Commissionon Crime Prevention and Crimina Justice in Vienna, which was held
from 28April to 9 May 1997. However,he was informedby the Centre for
InternationalCrime Prevention of the Office for Drug Control and Crime
Preventionin Vienna that replies to thequestionnaireregardingthe use and
applicationof theBasic Principleson the Independenceof the Judiciaryhad
been received from77 countriesas of 16 December1997. The Special
Rapporteurwas also informed that the CrimP erevention andCriminalJustice
Divisionis still in the process of undertakinga similarsurvey on the
implementationof the Basic Principleson the Role of Lawyers and the
Guidelineson the Role of Prosecutors. The SpecialRapporteurwill continue
liaisingwith the same Divisionand will workcloselywith it for greater
disseminationof the Basic Principleo sn the Independenceof theJudiciaryand
its applicationin Member States.
3. Cooperationwith UNDP
25. The SpecialRapporteurthanksUNDP for the assistanceand cooperation
extendedto him by UNDP offices in various countries.
4. Cooperation withthe Activitiesand Prosrarnmes Branch of the
Office of theHiqh Commissionerfor Human Riqhts (OHCHR)
26. As mentionedin his thirdreport,the SpecialRapporteuris
.collaboratingwiththe Activities and ProgrammeB sranch of the Office of the
High Commissioner for Human Rights to developa training manualfor judgesand
lawyers (E/CN.4/1997/32, para. 31), as part of the UnitedNations Decadefor
Human Rights Education. The Special Rapporteur attendedan expertmeeting
from 5 to 8 May 1997to review the draft manual. The draft willbe revisedon
the basis of substantive comments made by the participants atthe expert
meetingand will be further piloted througf horthcomingcourses to be offered
to judgesand lawyersby the OHCHRprogrammeof technicalcooperation,before
its finalpublication..The Special Rapporteur expects this manual to
constitutea comprehensive curriculum for th training ofjudges and lawyers
on international human rights standards, tobe adaptedcase by case to
particularnationalneeds and legal systems.
F. Promotionalactivities
27. As stated inhis third report,the SpecialRapporteur considers the
promotionof the importanceof the independenceof the judiciaryand the legal
professionfor respect for the rule of law in a democraticsociety,in the
spiritof the Vienna Declaration and Programmeof Action, to be an integral
part of his mandate. In this regard, the Special Rapporteur continued to
receive invitations to addresl segal forums, seminars,conferencesand
trainingprogrammes. Due to other commitments during the year, the Special
Rapporteurcould not accept all the invitations. Nevertheless,the Special
Rapporteur acceptedthe followinginvitations: page 11
(a) In Cambodia,from 23 to 25 June 1997, the Special Rapporteur
addressedthe opening of the judicial training programme organize by the
CambodianLaw Training Project.He held consultationswith the Minister for
Justice,the localOHCHR office and other donororganizations.
(b) From 25 to 30 August1997 the Special Rapporteur attendet dhe
fifteenth LAWASIA Conferenci en Manila where he deliveredseveral addresses
and participatedin paneldiscussionswith several ChiefJusticesof the
Asian-Pacificregion.
IV. ESTABLISHMENTOF AN INTERNATIONALCRIMINAL COURT
28. The Special Rapporteurwishes to express hisappreciationfor the
effortsof the PreparatoryCommitteeon the Establishmentof an International
CriminalCourt (created by GeneralAssembly resolution50/46 of
11 December 1995) which has beenmeetingperiodically tocreate a draft treaty
on the establishmentof a permanentinternationalcriminalcourt to be put
before a conferenceof plenipotentiaries in Rome in June-July1998. The
SpecialRapporteur supports a strong permanent international criminc alurt
with jurisdictionover seriousviolationsof internationalhuman rights and
humanitarian law.
29. With regardto the independenceand impartialityof such a court, the
SpecialRapporteuris firmlyof the opinion,thatthe permanent international
criminal court must havea strong independent prosecutor who can initiate
investigationson his own motionwithout any political or other
considerations. A prosecutorwith the requisite independence and impartiality
will add considerablyto the integrityand independenceof the court.
30. As the Special Rapporteur discusse dn his earlier report to the
Commission (E/CN.4/1997/32,paras. 45 and 46), it is importantthat the method
of remunerationof judgesof the court from itsinceptionbe seen to be
compatible withtheir securityof tenure so as to maintain their independence.
It is equally important for thecourt'sdecisions, eitherinterlocutoryor
final,to be complied withby States. If States are permittedto ignoreits
decisions,the very objectof the establishmentof the court willbe defeated
and public confidencein the integrityof the court lost. The statute
thereforemust provide for a procedureto secure compliance whenthere is a
failureto do so. The SpecialRapporteur hopesthat these issues will be
adequately addressed at the next Preparatory Committee meeting befortehe
final draft statuteis presentedin Rome.
V. COUNTRY SITUATIONS
A. Introduction
31. This chapter contains brief summariesof the urgentappeals
and communicationstransmittedto Governmentsbetween 1 January
and 10 December 1997, as well as replies to the allegations receivedfrom the
Governmentsbetween 1 January 1997 and28 January 1998, including meetingsthe
Special Rapporteur had with government representativeI sn. addition,the
Special~apporteurtakes notein this chapterof the activitiesof other
mechanismswhich are relatedto hismandate. Wherehe has deemed itpage 12
necessary,the Special Rapporteurhas included hisown observations. He
wishes to emphasizethat appeals and communications reflected in this chapter
are based exclusivelyupon informationthat has been transmittedto him
directly. Where information was insufficient,the Special Rapporteur was not
in a position to act. Further,he deeply regretsthat lackof sufficient
human resourceshas preventedhim from actingupon all'the information
transmittedto him during the past year, and he apologizesto the
organizations whohave providedhim with well-documentedand well-researched
reportson particular situations.The Special Rapporteur also recognize that
problems concerning the independenceand impartialityof the judiciary arenot
confinedto the countriesmentioned in this chapter. In this regard,he
wishes toemphasizethat readersof the present report should not interpret
the omissionof a particular country from this chapter as indicativethat the
SpecialRapporteur considers that there are no problems withthe judiciaryin
that country.
32. In preparingthis report,the SpecialRapporteur took note of reports
of his colleagues,Mr. ThomasHammarberg,Special Representative of
the Secretary-General on the situationof human rightsin Cambodia;
Ms. ElisabethRehn, Special Rapporteur on the situationof human rightsin
the territoryof the formerYugoslavia,and Mr. Michel Moussalli,Special
Representativeon the situationof human rightsin Rwanda.
Situationsin specific countries or territories
Bahrain
Communication from the Government
33. On 7 May 1997, the Governmentof Bahrain transmitted a letter to the
SpecialRapporteur requesting clarificatio on the passage inhis reportto
the fifty-thirdsessionof the Commissionon HumanRights which expressed
concernthat "the trialsbefore the State Security Court violate article14 of
the International Covenant on Civil and Political Rights owingto the apparent
lack of due process in the Court" (E/CN.4/1997/32,para. 76).
Communicationto the Government
34. On 12 November 1997, the Special Rapporteur replietdo the letter
of 7 May 1997, explainingthat he had received serious allegations concerning
the alleged lackof due process withinthe State SecurityCourt. Accordingto
the source,defendantsare not allowed accessto legal counsel untilthey are
brought to theState SecurityCourt; defencelawyersallegedlydo not have
access to court documents,nor do theyhave adequatetime to prepare a defence
for their clients; defence lawyers are given limite access to their clients
during the trials before the State SecurityCourt; and the sessionsbefore the
Court are allegedlyheld incamera. Further,article 7 of the Criminal
Security CourtLaw provides that "the verdictpassed by the court shall be
final and shall not, in any manner,be appealedagainst,unless the said
verdicthas been passed in the absenceof the accused, in whichevent, the
procedure statedin the foregoing article shala lpply". It was also brought
to the SpecialRapporteur'sattentionthat of three State SecurityCourts,two
are presided by membersof the Al-Khalifafamily which governs the Stateof page 13
Bahrain. The Special Rapporteur took note of the fact thatthe State Security
Court Lawdoes in fact providefor proceduralguaranteesthat addressthe
allegationscontainedin the communications sent bt yhe SpecialRapporteurto
the Government. However,the source presented allegations concerning specific
cases inwhich theseproceduralguarantees were not followedby the State
SecurityCourt, allegationsthat were summarized it nhe communicationssent to
the Governmenton 16 October 1996 and18 November1996.
Bansladesh
Communication from theS~ecialRa~~orteur
35. On 14.February1997, the Special Rapporteur sen an urgent appealto the
Governmentof Bangladeshto expresshis concernover the legal situation of
Mrs. Zobaida Rashid,wife of ColonelRashid. Accordingto the source,
Mrs. Rashidwas arrestedon 3 November 1996in her Dhakaresidenceon a remand
order and held for five days,duringwhich time she was reportedlytorturedto
make herconfess. It has beenreported thatshe was broughtbefore the Chief
Metropolitan Magistratoen 12 November 1996without the presenceof her
attorneyand thatthe chargesagainst herwere unclear. Attemptsto
manipulatethe legalproceedingswere alsoreported;in particular,her
defenceattorneywas misinformed ofthe dates of Mrs. Rashid'sappearancesin
court and he did not have accessto documentsrelating tothe case.
Communicationfrom the Government
36. In February1997, the Government providedthe Special Rapporteur with a
reply tc the urgent appeal senton behalfof Mrs. ZobaidaRashid. The
Governmentstatedthat Mrs.Rashidwas arrestedon 3 November 1996in the
presenceof her attorney,Mr. FormanAli, and was prosecutedfor possessionof
illegal arms. She was heldat a police remandcentre for fivedays and on
9 November1996, she was produced before the Chie Metropolitan Magistrate,
The allegation that shewas
who grantedfurther remandfor four days.
torturedduring her detention is falseand unfounded. The Governmentadded
that the investigationhas established the involvementof Mrs. Rashid in a
criminalconspiracy to kill the then President of Bangladesh,Bangabandhu
ShelkhMujiburRahman,and 32 others,includingpregnantwomen and children,
but she was never charged withany subversiveact againstthe Governmentand
she was never detained undet rhe SpecialPowersAct 1974. The Governmentalso
asserted thatshe has been verywell treatedin jail andthat she was allowed
to receivevisitorsand lawyers. The Governmentalso listedthe names of
relativesand advocateswho visitedher in detentionbetween 1996 and
February1997.
Observations
37. TheSpecial Rapporteur thanksthe Governmentfor its prompt response to
his intervention.The SpecialRapporteurhas not heardfurther fromthe
Government.page 14
Belarus
Communication from the Government
38. On 10 January 1997, the Government providetdhe Special Rapporteur with
a reply to his letter dated 12 November1996 regarding the alleged proces sf
suspendingthe ConstitutionalCourt by the headof State followingits
decision concerning the referendumon two draft constitutions. The response
of the Government contained informatiw ointh regardto provisions embodied in
the Constitution concerning the administrationof justice and the appointment
and independenceof judges. It also gave detailedinformationregardingthe
organizationof the judicialsystemand the statusof judges as containedin
the Republicof Belarus Actof 13January 1995. The Special Rapporteur was
also informedof the appointmentproceedings,the activitiesand the
competenceof the Constitutional Court judges. The Governmentstated that the
above-mentioned general information related to theperiod coveredby the
inquiry fromthe Special Rapporteur concerning th situationof judicial
organs in Belarus. Finally,the Governmentadded that on 24 November1996,
the Republicof Belarus adopted a new Constitutionby referendumwhich amended
the procedure for the appointmeno tf judges. The Presidentof the
ConstitutionalCourt, thePresident ofthe SupremeCourt and the Presidentof
the Supreme Economic Court are now appointb eyd the President withthe consent
of the Councilof the Republic,whereas thesepersons were all electedby the
SupremeCouncilunder the previous Constitution.The new Constitutionhas
also increasedthe membershipand age limit of the ConstitutionalCourt.
Observations
39. The Special Rapporteur would liketo thank theGovernmentfor its
response. However,he notes that the Government didnot provide him with
information regarding the specificallegationhe sent. He remains concerned
that the judiciarymay not be independent from the executivebranch.
Bolivia
Communicationto the Government
40. On 6 February1997, the Special Rapporteur transmittea dn urgent appeal
jointlywith the Special Rapporteur on extrajudicial, summaryor arbitrary
executionsconcerningthe case of lawyerand Presidentof the non-governmental
PermanentHuman Rights Assemblyof Bolivia,Mr. Waldo Albarracin,who had
reportedly been detained be yight policemen. According to the information
received,he was severely beaten and threatenedwith death. He was recently
transferred to the headquartersof the TechnicalJudicial Police in La Paz and
then taken to a hospital. It is reportedthat the incidentmay be relatedto
a statementmade by Waldo Albarracln to the press about a violent encounter
betweenminers and thepolice which took place in the Amayapampa region of
Boliviaand in which ninepeople were killed.
observations
41. At the time thepresent reportwas finalized,no reply had been received
from theGovernment. Brazil
Communicationsto theGovernment
42. On 20 June 1997, the SpecialRapporteursent an urgent appealjointly
with the Special Rapporteuron extrajudicial, summary or arbitrary executions
concerning the State prosecutor, Luis Renato Azevedo da Silveira,and his
assistant, lawyer Marcelo Denaday. It was reportedthat on 12 June 1997,
Marcelo Denaday sufferedan attempton his life while hewas'drivingwith his
wife and children. Accordingto the informationreceived,Marcelo Denaday and
Luis RenatoAzevedo da Silveirawere investigating the murder of Carlos
Batistade Freitas,a case in which membersof the police organization
ScuderieDetective le Cocq (SDLC)were allegedly involved. It was also
reportedthat Lufs RenatoAzevedoda Silveirahad been investigating the
activitiesof SDLC forsome time. Members of the police and of the judiciary
may reportedlybe involvedin this organization. Furthermore, LuisRenato
Azevedoda Silveira hadrequestedpolice protection, which wad senied-dueto
lack of resources.
43. On 24 September.1997, the SpecialRapporteur senta communicationto the
Governmentconcerning Pedro Montenegroa , lawyer,member of the Permanent
ForumAgainst Violence of Alagoas (FPCV-AI)and member of Amnesty
InternationalBrazil Section,and MarceloNascirnento, lawyer and Presidentof
the GruDo Gav de Alacroasand member of the FPCV-Al. It was allegedthat both
of them had received anonymoustelephone calls warning thet mhat unless they
droppedtheir investigationsinto the murdersof two homosexuals and a
transvestiteon 6 June 1996, they wouldbe killed.
Observations
44. The Special Rapporteur regrets that no reply from the Government has
been receivedto date.
Cambodia
45. Between23 and 25 June 1997,the Special Rapporteur visited Cambodi at
the invitationof the International Human RightG sroup to address theopening
of the training programmefor the judgesof Cambodiaorganizedby the '
CambodianLaw TrainingProject.
46. . On 24 June, the Special Rapporteur calleo dn the Minister of Justiceof
Cambodiaand expressed his concero nver the stateof judicial independencein
that country. Of particular concern to the SpecialRapporteurwas the failure
on the part of the Governmentto convene theSupremeCouncil of Magistracy,
which is the constitutionalmechanism forthe appointmentof judges. The
SpecialRapporteurlearnt that there have been a few appointmentsof judgesby
the Government,which may be unconstitutional. Such appointmentscould have
very serious implications on the judgements and decisionsof those judges.
47. The Ministerof Justice expressed his difficultiesin conveningthe
Councilbecause of political differences between the twoparties then sharing
governmentalpower.page 16
48. The Special Rapporteurassociates himself with the concernsexpressedby
the SpecialRepresentativeof the Secretary-General for Cambodiaover the
independenceof the judiciaryin Cambodia, as expressedin his recentreport
to the GeneralAssembly (A/52/489).
Colombia
Communicationsto the Government
49. On 17 July 1997, the Special Rapporteursent an urgent appealjointly
with the Special Rapporteuron extrajudicial, summary or arbitraryexecutions
concerninglawyer andCity Ombudsmanof San CalixtoJosd EstanislaoAmaya
Pdez. It has been reported that Mr. Amaya Paez had received adeath threat
from a paramilitary group called "Autodefensasdel CatatumboNwhich ordered
him to leave the region within eight days.Accordingto the information
received,this paramilitary group is linkedwith the Colombian security
forces.
50. On 1 August 1997, the Special Rapporteurtransmitted a communicatiot no
the Government concerning lawyersJose Luis Marulanda Acosta and
AugustoZapata Rojas. It wasallegedthat members of the Colombianmilitary
had submitted a reportstating that both men were activemembers of the
NationalLiberationArmy (ENL). Reportedly,this was basedon
Mr. MarulandaAcosta's defence ofJhon Jairo OcampoFranco,who was arrested
and charged with being a member of the ENL. The source further alleged that
Mr. MaralundaAcosta and Mr. Zapata Rojas, who merely sharea sn office with
Mr. MarulandaAcosta, began having problems following theformer's refusal to
allowhis client to bephotographed with allegedly confiscated material. The
photographs wereto be sent to the nationalpress.
51. On 17 November 1997, the SpecialRapporteursent an urgent appeal
concerninglawyers AlirioUribe Mufioz, Rafael Barrios Mendiviland
Miguel Puerto Barrera,membersof the "JoseAlvear RestrepoNlawyers1
collective. ~llegedly,the lawyershad suffered threats and harassment for
severalmonths. It was reportedthat Alirio Uribe Mufioz,Presidentof the
collective,was accused of supporting a wing of the ENL. The accusationswere
reportedly madein a report submittedby the army to the Bogot5 regional
prosecutor'soffice. It was also reportedthat MiguelPuerto Barrera,legal
representativeof the victims,was declareda military objective by the army.
Finally, Rafael Barrios Mendivil ,egal representativeof the familiesand
survivors of the Calotomassacre, hadbeen reportedly subjected to constant
tailing,harassmentand threats.
Communications from the Government
52. On 1 October1997, the Government sent a reply to the communication
transmittedby the SpecialRapporteur concerning lawyers LuisMarulandaAcosta
and Augusto Zapata Rojas. Accordingto the Government,the FiscaliaResional
Delesadaof the city of Armenia is investigatingJhon Jairo Ocampo for charges
of rebellion. The investigationstartedon 7 February1997 and on 22 April
the Prosecutorordered the arrest ofJhon JairoOcampo. On 9 May the
Prosecutordecided to release him. The investigationis currentlyin the
examination proceedings, collecting evidenci e, order to clarify the facts. page 17
53. On 3 December 1997, the Government provided additiona ilnformationwith
regardto the above-mentionedcase. The Governmentinformedthe Special
Rapporteur thataccordingto a report submittedby the judicialattorney
(Procurador Judicialen 10 ~enal) in the city of Armenia,there wereno
irregularitiesin the investigation of the caseof Jhon Jairo Ocampo that
justifythe appointmentof a SpecialAgent; however,the judicialattorney
ordered specialsurveillanceto theprocess. Furthermore,the Government
informed thatthe complaint madeby lawyer Jos6 Luis MarulandaAcosta was at
that moment under investigation.. On 16 December1997, the Governmentof
Colombiaprovided the Special Rapporteuw rith a replyto his communication
dated 16 November 1997 regardingthe case of the members ofthe "Jos6Alvear
RestrepoNlawyers1collective. Accordingto the Government,the case had been
studied by thecompetentauthorities ofthe Government. In particular,the
Committeeon the Regulationand Evaluationof Risks of the Programmeof
SpecialProtectionfor Witnessesand Threatened Persons of the Human Rights
AdministrativeSpecialUnit of the Ministryof Interiorhad ordered the
adoption ofthe measuresfor protectingthe office and the integrityof the
membersof the collective. These securitmyeasures, located in the"Edificio
de Avancia"in the cityof SantaFe in Bogotd,included theinstallationof a
reinforcedsecurity doorat the entry level, a closed-circuit security system
and an entry systemfor staff involvingan electronickeyboardand magnetic
cards. Moreover, a seminar on self-protectionwas organizedfor the members
of the collective. Rafael MariaBarrios, ReynaldoVillalbaand
PedroJulio Mahechahad been givenbulletproofvests and cellular telephones
in which thetelephonenumbersof the securitybranch of the Ministryof
Interior hadbeen programmedin the eventthat an emergencyarose. The
Directionof Protectionof the AdministrativeDepartment ofSecuritywas
requestedto undertake a study of threats issuedagainstMr. Alirio Uribe,
Mr. RafaelBarrios,Mr. Barrios Mendivil and MrP .uerto Barreraand to
evaluatethe risks. TheGovernmentsaid that notwithstanding the previous
communication,it had not been possibleto obtain withinthe given time
detailedinformation relating to the investigations concerning the mentioned
allegations. The Governmentrequestedan extension oftwo months in order to
present itsobservationsconcerning the allegationm sade by the members of the
"~os6Alvear Restrepo"lawyers1collective.
54. On 23 January 1998, the Government providedthe SpecialRapporteur with
the requestedadditionalinformation. According to the Government,the Public
Prosecutor's Department had statedin a recent communication that the
Terrorism Unitof the Bogotd RegionalProsecutor's Office confirmet dhat the
Unit was notundertakingany proceedings against MrU .ribe Mufioz,
Mr. Puerto Barreraor Mr. Barrios Mendivil on the contrary,the Unit was
investigatingthe threatsagainstthem. In addition, theSpecialRapporteur
was informedthat the Protection Department had undertakenthe study of the
level ofrisk and intimidation of the three men. The study was being
consideredby the Committeeon the Regulationand Gvaluationof Risks, and the
SpecialRapporteur would be providedwith the Committee'sconclusions.
Observations
55. The SpecialRapporteur thanks the Government C oflombiafor the
responses provided. However,he notes thatthe replies dated 1 October 1997,
3 and16 December 1997and 23 January 1998do not address theSpecialpage 18
Rapporteur's concerns about lawyersDr. Marulanda Acostaand Dr. Zapata Rojas.
The Special Rapporteur will continueto monitor developments in the three
complaints.
Croatia
Communicationto theGovernment
56. On 4 November1997, the Special Rapporteur sent a communicationto the
Governmentcontaining general allegations concerning the judiciaryin Croatia.
According tothe informationreceived,several judgeswere reportedlyrelieved
from their posts followindgecisionsby the State Judicial Council which were
alleged to have been motivatedmore by the nationalorigin or politicalviews
of the judges than by theirprofessional competence. The Presidenof the
SupremeCourt, Dr. KrunislavOlujic,was reportedly dismissed followin ag
decisionof the HighJudiciary Councilon 4 January 1997 which was alleged to
be connectedto his determinationto work independentlyof the ruling HDZ
political party. Some dysfunctionof the judiciary were also brought to the
SpecialRapporteur'sattention, inparticularthe pre-selectionof judicial
candidatesby the Ministerof Justice. Further,securityof tenure is not
guaranteedfor judges. The Croatiancourts have alsoreportedlyexperienced
difficultieswith implementing their decisions, particularly wit respect to
cases against membersof the Croatian armyand thepolice, or where rulings
were in favourof non-Croats. It was also r.eported that the accused'sright
to havean attorney present during the investigative phase and during an
appeal against investigativ detentionwas not always respected.
Communicationfrom the Government
57. On 14 January1998, the Special Rapporteur receivea d communicationfrom
the Governmentof Croatia in responseto his letterof 4 November 1997. Save
for setting outgenerallythe constitutional provisions governing the
judiciaryin Croatia andstatingthat theremovalof the former Presidentof
the SupremeCourt was not motivatedby politicalconsiderations,the issues
raised in the SpecialRapporteur'sletter werenot addressed. The Special
Rapporteur therefore intends t followup on the matter.
Cuba
Communicationsfrom the Government
58. On 25 February1997, the Governmentsent a responseto a letter
transmittedby the SpecialRapporteuron 8 July 1996 concerningthe Cuban
legislationon the independenceof judges and lawyers and the casesof Cuban
lawyersLeone1 Morej6nAlmagro and Rend G6mez Manzano.
59. The Governmentof Cuba provided informatioo nn the reformsof the
judiciary sincethe ending,ofthe previousregime, particularlythe law that
abolished theEmergencyTribunalsand the'CriminalDivisionof the High Court.
Both institutions then had the powerto impose severepunishmentssummarfly
without complying with fundamental guarantees for the accua sed without
right of appeal to a higher tribunal. The Government further explainetdhat
the principleof the independenceof the judiciaryis enshrinedin the page 19
Constitutionand in the 1990 Law on the TribunalesPo~ulares. Decree-Law 81
of 1984 provides,inter alia, that 'the exerciseof the legal professionis
free" and that lawyersare independentand accountable only to the law.
Article 5 of Decree-Law 81 defines the Organizaci6nNacionalde Bufetes
Colectivos (National Organizatio Of CollectiveLaw Offices)as a public
interestprofessionallegal entity,autonomousand national, whosemembership
is voluntaryand which is regulatedby the law and its own agreementsand
provisions.
60. The Criminal Procedure Law of Cuba contains provisions with regard to
the functionsof lawyers,including members of theOrganizacidnNacionalde
BufetesColectivos. Regardingthe latter, thelaw states, interalia, that
disciplinarymeasures against the members of the organization may be appealed
to thehighest levelsand that disciplinarysanctions maybe applied by the
courts against legal professionals for professional misconduct in the
performanceof their functions.
61. In addition,the Government informet dhe SpecialRapporteurthat the
freedomof associationand of speech of lawyersis recognizedin
articles 53 and 54 of the Constitution and,for the members of the
OrganizacidnNacionalde BufetesColectivos,in article 34 of its Regulations.
Moreover,Decree-Law 81 states thatlawyers mayorganizeand conduct legal
literacyprogrammes forthe public.
62. The Governmentquestionedthe motives ofthe sourcewho complainedto
the SpecialRapporteurand suggestedthat he establishclear rules of
admissibilityfor allegations. Asan example,concerning thecase of lawyer
Leone1MorejBnAlmagro,the Government explainedthat he had been expelledby
the organizacidnNacionalde Bufetes Colectivos because ofrepeatedand
seriousfailuresto carry out hisprofessional duties, thereby harming both
his clients and the prestigeof the organization. As provided for by law,
Mr. Morejdn had appealedto theMinisterof Justice,allegingthat althoughhe
had made mistakes,those weredue to the numberof cases withwhich he had to
deal andto his weakness withrespect to certain details. The Ministerupheld
the expulsion.
63. Regardingthe case of Mr. Gdmez Manzano,the Government explained that
his request tocreate a lawyers'associationwas rejectedbecause it would
have hadsimilarobjectivesto those of the existingUnidn Nacionalde
Juristasde Cuba, which would be contrary toCuban law.
Observations
64. The Special Rapporteur thankt she Governmentfor its detailed response.
From itsresponse,it does appear that the Government, through the Ministerof
Justice,has some controlover disciplinary sanctiono sn lawyers.
Principle 28 of the UnitedNations BasicPrincipleson the Role of Lawyers
"Disciplinaryproceedingsagainst lawyers shall be brought before
provides:
an impartial disciplinary committee establishb ed the legalprofession,
before an independent statutora yuthority,or before a court, and shall be
subiectto an inde~endentiudicial review" (emphasi added). The fact thatpage 20
Mr. Leone1 Morej6nAlmagroappealed tothe Ministerof Justiceand the
Ministerdismissedthe appeal,indicatesthat there may not be a provisionin
the legislationfor an independentjudicial review as provided in principle.
Communicationto the Government
65. On 23 September1997,the Special Rapporteur sent anurgent appeal
concerning lawyers MohammadSulaymanFayyad and Hamdi Haykal,arrested
on 17 June 1997 in the townof Banha for criticizing,in a public gathering,
Law 96 of 1992. Theywere reportedly charged with possessionof printed
materialcriticalof Law 96, which allows landownersto evict farmers,and
with incitingfarmersto opposethe Law, although by peaceful means.
Accordingto the informationreceived, theywere torturedin Torapenitentiary
by security officers.They werethen transferredto theHigh SecurityPrison
in Tora. The authoritiesdid not inform their lawyersor familiesof their
whereaboutsuntil 19 June and, even then,they wereunable to receive visits
due toa ban forbiddingvisitsby lawyersand relativesto detainees. The
Special Rapporteurwas also informedthat on 9 August 1997, Sayyed
Ahmad al-Tokhi,a lawyerfrom the EgyptianOrganizationof Human Rights
(EOHR),was arrestedat Cairo airport allegedly in connectionwith his
peaceful activities in oppositionto Law 96. For two days hewas held in
three different detentioc nentreswithout chargesbeing brought against him.
Accordingto the source,he was finally interrogateo dn 11 August in the
presenceof defencelawyersat the State Security Prosecution Office. Before
being transferred to MazralatTora prison, where he was reportedlydetainedat
the timeof the intervention, he was held in al-Mahkoumprison inTora where
he was said to have beenill-treated. He has been chargedwith verbally
promoting ideas which contradict thfeundamental principlesof the ruling
regime.
Communicationfrom the Government
66. On 15 October1997,the Governmentprovidedthe Special Rapporteur with
a reply to his urgentappeal,in which it confirmed that al tlhe rightsof the
persons in questionwere respectedand that their cases were being dealtwith
in an orderlymanner according to thl eaw. Regarding thecases of
Mr. MohamedSolimanFayed andMr. Hamdy Heikal,the Government informet dhe
SpecialRapporteurthat both persons hadconductedpremeditated and organized
agitation instigatinf garmersto oppose by force the implementationof the new
Law 96 of 1992 on tenancyagreementsin regardto agriculturalland.
Accordingto the Government, both personshave been arrested by order of the
Public Prosecutor followinga searchof theirresidence where printem daterial
calling for oppositiob ny force to the Law was found. The Government
mentionedthat while the two personswere imprisonedin the Tora penitentiary,
they attacked some militarypoliceworking in the prison. Those incidents
were investigated.Regardingthe case of Mr. Ahmed Altouhky,the Government
informedthe Special Rapporteur tha he was arrestedon 9 August 1997 at Cairo
airport tryingto escapean arrest warrantissuedby the Public Prosecutorfor
the same reasonsmentioned inthe case of Mr. Fayed and Mr.Heikal. The
PublicProsecutor had begun an investigation,but had notthen reacheda final
decision. Accordingto theGovernment,nothingin the factsrelated tothe page 21
three cases was connectedto their professionas lawyersand allof their
rights during investigation an detentionwere fullyrespected.
Observations
67. The Special Rapporteurthanks the Governmentfor itsresponse.
France
Communicationto the Government
68. On 7 November1997,the Special Rapporteur sent a communicationto the
Governmentof Franceregardingthe strike on 6 November1997 in which most of,
the 33,000 French lawyersparticipatedin order to draw the attentionof the
Governmentto the lack of human and financialresourcesof the French justice
system,resultingin a largebacklog of cases in thecourts. In addition,the
Special Rapporteurrequestedthe Governmentto providehim with thelatest
developments relatintgo the draft reformof the judicialsystem in France.
Observations
69. To date, the Governmenthas not responded.
Georaia
Communicationto theGovernment
70. On 23 September1997, theSpecial Rapporteur sent a communicationto the
Governmentexpressing concern abou tllegationsof interferenceof the
executivein politicaland criminaltrials and politicallysensitive trials.
It wasalso reportedthat judgespractiseself-restraint in order toretain
their jobs and that sentencesin politically sensitive cases are handed down
by theSupremeCourt of Georgia actingas a court of first instance.
Accordingto the source,the sentencesof this Courtare consideredto be
final and the right of appealto a'highercourt is denied. The Special
Rapporteurwas also informed that the April 1995 amendmentsto the Criminal
Code substantiallyrestrictthe rightsof lawyersin defendingtheir clients.
Accordingto thesource, certain amendmenth save the effectof limitinga
defencelawyer'saccessto important documents.
Communicationsfrom theGovernment
71. On 19 January1998 theGovernment responded by sendinga copy of a
letterdated 16 January1998 addressedto the High Commissioner for Human
Rights. The Governmentindicatedthat Georgiahad adopted' a new democratic
Constitutionon 24 August 1995 and, pursuantto this Constitution, on
13 July 1997 the Parliamentof Georgiaadoptedthe BasicLaw on courtsof
general jurisdiction.The.Government stated that the Basic Law completely
transformedthe statusof courts inthe countryas regards their relations
with other bodiesof authority. The Governmenthad sought the commentsof the
High Commissioneron the Basic Law.page 22
Observations
72. Georgiaobviouslyis going througha period of transformation from the
previousSoviet system to democracy. TheGovernmentadmits that under the
previoussystem therewere many ways to influenct ehe courts.
73. The SpecialRapporteurthanksthe Governmentfor its response andwill
study the materialson the new Basic Law and express hiscommentsin due
course.
India
Communicationsto the Government
74. On 21 ~ebruar~1997, the SpecialRapporteursent a communicationto the
Governmentof India in which he requestedto be advisedof the statusof the
investigationsconcerningthe kidnappingand killingof Mr. Jalil Andrabi,
lawyerand human rightsactivist. This case was the subjectof an exchangeof
correspondencebetweenthe Special Rapporteur and the Governmentin 1996 and
was mentionedin his 1997report (~/CN.4/1997/32p,aras. 110-115).
75. On 29 May 1997,the Special Rapporteur transmitte adcommunicationto
the Government concerning Jasve dingh,a human rights lawyerwho had
allegedlybeen threatened and harassedby thepolice. He was reportedly
accusedof harbouringterroristsand his home had been raided morethan 100
times. Accordingto the source,Jasved Singh received such treatmentbecause
of his defenceof suspectedterroristsand his human rights work. In the same
communication, theSpecialRapporteur recalled his previous letters concerning
the kidnappingand murderof JalilAndrabiand requested the Government to
providehim with informationon the current status of the investigations.
76. On 13 June 1997,the SpecialRapporteursent an urgent appeal jointly
with the Special Rapporteuron extrajudicial,summary orarbitrary executions
concerning T. Puroshotham, lawyerand joint secretaryof the Andhra Pradesh
CivilLiberties Committeew ,ho was reportedlyattackedon 27 May 1997 by
police in plain clothesand sustained serioushead injuries. Accordingto the
source, the"GreenTigersN,a group allegedly established bythe Andhra
PradeshGovernmentin concertwith the police to counterthe activitiesof
human rightsdefenders, claimed responsibilif tyr the attack.
77. On 1 August 1997,the Special Rapporteursent a communicationto the
Governmentin which he providedadditional informatioo nn the harassmentand
intimidationof JasvedSingh. According to the information received by the
SpecialRapporteur,JasvedSingh residesin the Stateof Punjaband practises
in the subregional courts. He is also a memberof a local civil liberties
organization. Heallegedlybegan to have difficuLtiesin 1987when he was
chargedwith terroristand disruptive activities. He was released after
33days of detentionand acquittedof all charges. The sourcealso alleged
that in 1990Mr. Singhwas arrestedfor murder, jailedfor 20 days and
subsequently acquitted. Accordin to the source, Jasved Singhwas also
aggressivelyquestionedfor his defenceof two Sikhmen charged withthe
murder of PishamPrakesh,the Presidentof the Congressin Khanna district. page 23
78. On 23 September 1997,the Special Rapporteurtransmitteda communication
to the Government concerning the harassmentof three lawyersand a judge.
Accordingto the information received, a team of armed personnelof the
30th AssamRifles, along withone Manipurpolice constable,searchedthe home
of lawyerThokchom Ibohal Singh on 4 April 1997. It was further allegedthat
he was accusedof being a sympathizerof anundergroundorganizationand of
giving financial assistanct eo it, althoughno evidence wasfound. The
Special Rapporteur was also informedthat lawyer Khaidem Mani Singh,
Vice-Presidentof the Manipur BarAssociation,was arrested with hiswife on
the eveningof 31 March 1997and chargedwith harbouring armed opposition
leaders. It was also reportedthat lawyer ChongthamCha Surjeet'shouse was
raided on 4 July 1997by a team of the Indian Armyand the Rapid Actionpolice
Force of the Manipur Police.Finally,the SpecialRapporteur expressed his
concernabout allegations received concerning Judge W.4. Shishak,a judge of
the Gauhati HighCourt, whose housewas raidedon 10 December 1996. According
to the source,the assault was related to his activitiesin defenceof human
rights in Manipur.
79. On 24 September1997, the SpecialRapporteur sent an urgent appeal to
the Governmentof India concerning thelawyer RaviNair, Executive Director of
the South AsianDocumentation Centre, based in New Delhi. Accordingto the
source,Ravi Nairreceived twophone calls from a policeman,who identified
himself asDeputy Commissioner of Police of the Delhi police, threateninghim
with arrestand physical injury.
'Communications from the Government
80. On 4 July 1997,the Government provided a reply to the Special
Rapporteur containing additional informati onn the caseof the human rights
lawyer JasvedSingh. In the sameletter,the Government enclosed information
regardingthe death of Jalil Andrabi. According to the Government,the
DivisionBench of the Jammu and KashmirHigh Court of Srinagar tookinto
considerationthe investigation report of the Special InvestigationTeam and
issued anorder on"l0 April 1997 requestingeffortsto secure the presencefor
questioningof a Territorial Armyofficer,Avtar Singh. The authorities
concerned werealso requestedto collaboratewith theSpecial Investigation
Team.
81. The Special Rapporteur receivea d reply from theGovernmentof India
on 29 September1997 with respect to the case of Ravi Nair. The Special
Rapporteurwas informedthat thePermanentMissionof India to the
United NationsOffice at Geneva had gotten in touch withMr. Nair regarding
his allegedharassmentand that the NationalHuman Rights Commissionwas
currently seizedof the matter. Accordingto the Government,inquirieswere
being conducted intothe incident.
82. On 9 October 1997, the Governmentprovideda reply to the urgent appeal
sent jointly withthe SpecialRapporteur onextrajudicial,summary or
arbitrary executions regarding lawye T. Purushottam. According to the
Government,T. Purushottamwas attackedby some unknown individualson Station
Road, Mahbubnagar. The Station HouseOfficerof the nearest police station
tookT. Purushottamto the govt%nmenthospitalimmediatelyfor treatmentand
also recordedhis statement. The Governmentinformedthe SpecialRapporteurpage 24
that the Additional Superintendena tnd the Superintendentof Police of the
area also visited T. Purushottamat the hospitalto ascertainthe facts of the
case. Effortswere currentlybeing madeto identifythe persons responsible
for the assault.
83. On 23 October 1997, theGovernment responded to the Special Rapporteur
regarding araid allegedlyconductedby securityforces on the houseof the
Judge W.A. Shishakof the Giwahati HighCourt. Accordingto the ~overnment,
the incident was broughtto the attentionof the Chief Justice of the Guwahati
High Court who immediatelyissuedorders for aformalpetition impleadingthe
Union of Indiaand the State Governmentof Nagalandto be registered. The
army officers concernedwere directedto filetheir reply within a week and,
in the meantime,the Superintendentof Policeof Dimapur gave instructions to
visit the spotand inquire intothe matter. The hearingof the case took
place on 7 April 1997 and affidavitswere filedby army and police
authorities. The Guwahati HighCourt concluded thatthe incidentwas a result
of confusion causedby the fact that the building wasnot the official
residenceof Justice Shishakand that one ofthe members of his staff looked
like a suspectfor whom the security forces weresearching. The Government
informed theSpecial Rapporteurthat the information regarding other
allegations raisedin the communicationwould be provided to him as soon as it
was received from the concerneo dfficials.
Observations
84. The SpecialRapporteurwould like to thank the Governmentof Indiafor
its replies.nd welcomes the positive stepstaken in the cases. However,he
remains concerned aboutthe frequent allegationshe has receivedof harassment
,andintimidationof lawyersby the policeand securityforces. He requests
the Governmentto investigate systematically,thoroughlyand impartiallythese
allegations,to identify thoseresponsible and bring thet mo justice.
85. Regardingthe case of Jalil Andrabi,the SpecialRapporteur,while
expressing hisappreciation forthe investigations into the death of
Jalil Andrabi,yet remains concerned over the dela in concludingthe
investigation.
Indonesia
86. On 12 June 1997, the Special Rapporteur sent a letterto the
Governmentof Indonesiawith regardto previousallegations transmitted
on 23 October 1996 concerningMochtarPakpahanand BanbangWidjojanto. The
Special Rapporteurwas informedthat on 25 October 1996, a Supreme Courtpanel
presided byChief Justice Soajonooverturned theacquittalof Mr. Pakpahan
ordered previouslyby another Supreme Court panelpresidedby JusticeAdi
Andojo on 29 September1995. The processby which this reversal took place
was by meansof "judicial review" pursuant to article 263of the Indonesian
CriminalProceduralCode which states,inter alia, "regarding ajudicial
decisionthat has been made, exceptone that exoneratesan accused of all his
liability,the person convictedor his beneficiariesmay apply for a reviewof
the decisionto the SupremeCourt." It was allegedthat it was the first time page 25
in the legal history of Indonesiathat that provisionof the Codewas invoked
by the prosecutor to applyfor reviewof an acquittalordered by the Supreme
Court.
87. It was further allegedthat when the SupremeCourt handed down its
decision,on 25 October 1996 (about five days before the retirementof the
Chief Justice),overturningits previousdecision,Mr. Pakpahanwas not
present in court. He was not notifiedof the matter. He was notifiedof the
decisionabout a month after it was made. There wereallegationsof rivalries
within the judiciary,particularlyinvolvingthe ChiefJustice and JusticeAdi
Andajo,who had presidedover the earliercourt.
88. In the same letter, the Special Rapporteur also sought aresponse from
the Government regarding allegations that BanbangWidjojanto,a lawyerand
defencecounsel forMr. Pakpahan,had been threatened by the prosecutionto be
called asa witnessto testifyagainst hisown client.
89. The Special Rapporteurfurther sought the Government' response to
allegations that he had receivedregardinglawsuits initiated by Mrs.Megawati
Soekarnoputri against the Governmentafter herpurportedremoval as the
democratically elected leader of PartaiDemokratik Indonesia (PDI). It was
alleged thatjudges had received directiof nrom government officials on how
the lawsuits shouldbe dismissedon technicalgrounds,etc.
90. Finally,in the same letterthe specialRapporteursought the
Government'sresponse tohis requestto carry outan in situ missionto
inquire intothe stateof judicial independenci en Indonesia.
91. The Permanent Missionof Indonesiato the United Nations Office at
Geneva respondedto the SpecialRapporteurin a communicationdated
September 1997. The Governmentrequested that its communicationbe submitted
in toto to the fifty-fourthsessionof the Commissionon Human Rights.
Althoughit is not the practiceof the SpecialRapporteurto incorporate in
his reportsthe full text ofcommunications hereceives, owingto space
constraints,in this particular case,as theallegationswere serious,the
Special Rapporteur has decided toaccede to the requestof the Government.
92. Followingis the text of the Government's reply:
"1. Mochtar Pakpahan
Regarding the caseof Mr. Pakahan,the IndonesianCourts have
suppliedthe followingclarifications:
A. During the trial at the CentralJakarta DistrictCourt,he was
found guiltyof publicly inciting thp eeople,both verbally and in
writing,to infringethe law or to defy the public authority,or
to commitpunishableacts sanctioned by article 160 of the
Indonesian PenalCode.page 26
B. Chronologyof the legalproceedings against Mr. ~akpahan:
1. On 7 November 1994,the CentralJakartaCourt of First
Instance sentenced Mr. Pakpahat no three yearsimprisonment
for violatingArticles 160 and64 (l);
2. On 16 January 1995, the JakartaCourt of Second Instance
increasedhis sentenceto four years forthe same offence;
3. On 29 October 1995 the SupremeCourt of appealsclearedhim
of all charges;
4. On 6 January 1997,followinga requestby the
Attorney-Generalfor a reviewof the case, the SupremeCourt
reinstated the four-year sentence wit ihmmediateeffect.
C. The Attorney-General decidedto submit a requestfor a review
based on the dispositionsof Articles263 (l),263 (2)(c) and
263 (3) of the Code of Criminal Procedure(KUHAP)as'follows:
Article 263 (1) :
'A defendantor his heir, are entitledto appeal to .
the SupremeCourt againsta verdictwhich has acquired
permanentlegal force,unless he has been acquittedand the
chargesagainsthim have been dropped. This article is to
the benefitof thedefendantor his heir. It goes without
saying thatthe defendantof his heir arenot going to
appeal for review if therehas been an acquittal. However,
this articledoes not expresslypreclude the
Attorney-General from requesting fora review afteran
acquittalhas been pronounced.'
Article 262 (2) :
'Therequestfor a review shallbe made on the basis of the
following: ...
... (C)If a decisionclearlyshows a mistakeon the part of
the judge or is clearlywrong.'
Article 263 (3) :
'Forthe same reasonsas intendedin section (2),a
requestfor a review can be submittew dith regard to a
court's decisionwhich has acquiredpermanent legalforce,
if in the decisionan allegation whichhas been proved is
not subjectto criminal proceedings.'
This last articleis clearly intended for no party other than the
Attorney-General. page 27
In this connection,the Supreme Court judge made several mistakes
in his reviewof Mr. Pakpahantscase, as follows:
1. The panel of judges only consideredthe case in the context ofthe
prevalent social transformationsin Indonesia while overlookint ghe
existinglaw, whichshouldbe upheld;
2. The panel of judges interpretedthe law in the contextof the
social transformationsin the countryto justifythe wrongdoingsof the
defendantand clearedhim of all the legalcharges against him, rather
than consideringthe social factoras one of many dimensionsof thelaw;
3. .Thepanel of judgesfocused their decision on the prevalent social
problemsrather than the legal system;
4. The judgesdid not considerthe lawas the basisof theirverdict,
but insteadconsideredit only as a referencein drawing their
conclusion;
5. In their considerations, the judges statedthat legal Acts were
not the only legal sourceof the law and that there were other sources
which were more important. However,they failed to specifywhat more
important sources there were on which they basedtheir verdict;
6. The panelof judges stated that the defendant,Mr. Pakpahan, was
not responsiblefor the loss oflife and materialas a result of his
actions;
7. ClearingMr. Pakpahanof his criminalconductwould be bound to
encourage workers around the country to organize unlawfu strikes;
8. The verdict wasnot in line with anotherdecisionof the Supreme
Court which convictedMr. Amosi Telaumbanua, one of the men who acted
under the directinstructionof Mr. Pakpahanin the related case,and
the fact that the judge chairingthe panel in the Pakpahancase alsosat
on the same panel which triedMr. Amosi Telaumbanua.
D. The Attorney-General based his requestfor a review on the
following additional considerations:
1. Principleof balance: The right to 'reviewa case shouldnot only
be accordedto a defendantor to his/herheir, but should also be
accordedto the Attorney-General;
2. Principleof public interest: Accordingto Article 49 of Act of
Parliament No.5/1986 on the State Administration Court, by public
interestone should understandthe interestof the nation or the state,
or the communal interest, or the interestof the statedevelopment
programme according to the law. Accordingto the Act of Parliament
No. 5/1991on the Attorney-General, public interestshould be understood
to mean the interestof the nation, the state and the community.page 28
3. Principleof CommonLaw: Tap MPR (decisionof the People's
Consultative Assembly)11/~PR/1994on the GBHN (broadguidelinesof
statepolicies) stipulates that a new lawis not only createdthrough
enactmentby the legislative,but also throughjurisprudence. In
addition,PresidentialDecree No. 17/1994on RepelitaV1 (five-year
developmentplan),under the subheading'Law'gives interalia 'a
greater roleto the judiciary todevelopnew laws for the realizationof
socialjustice forthe people through jurisprudence'.
4. Former Law: The 'Reglementop de Strafvordering' and Supreme
Court regulationsNo. 1/1969and No. 1/1980state that the
Attorney-Generalmay submitfor a reviewof a court's verdict which has
acquired permanent legaflorce.
E. In conclusion,the decisionof the Supreme Court to overturnits
formerdecisionwhich cleared Mr.Pakpahanof all legal charges
and to reimposethe four-yearsentencepreviously handed dowb ny
the High Court,does not violateArticle 263 of the Indonesian
Code of CriminalProcedure,as wronglysuggestedin your
communication,but insteadfinds its legalbasis in the said
article.
F. It is not true that either MrP.akpahanor his legal
representative werenot notifiedof the decision promptly enough
to enable themto challenge theruling,despitetheir request for
a reviewof the SupremeCourt decision,which is still being
examinedto date.
G. The judiciary concerned hasconfirmed thatthroughout theentire
trial ofMr. Pakpahan,the relevantprovisionsof the Indonesian
Code of Penal Procedurewere fullyobservedby the panelof
judges. Contraryto the allegations,the defendant and hislegal
counsel,as well as all the witnesses weregiven a fair hearing,
and the rightsof all parties were respected.The panel of judges
carriedout their task with all theindependence guaranteeb dy the
Indonesian law andthroughoutthe trial, wereentirelyfree to act
accordingto their ownconvictionsand sense of justice. At no
time andunder no circumstanceswas there any interferencefrom
the executivein the proceedings.
11. BambangWidjojanto
The allegation tothe effect that Mr. BambangWidjojanto,defence
counselfor MochtarPakpahan,was threatened with being forced to
testify againsthis own clientis totally withoutfoundation. The
investigation confirmetdhe absenceof any corroborative evidenct eo
support theallegation andMr. Pakpahan'scounselwas fully able to
dischargehis dutieson behalf ofhis client. In fact,Mr. Widjojanto
continues to represent Mr. Pakpahan, who has appeaf led anotherreview
of his case against the decisio of theSupremeCourt, which rejected
the conclusionsof the first reviewafter the Attorney-General ordereda
re-examination of thecase. page 29
111. Megawatu Soekarnoputri
Regardingthe lawsuits initiateb dy Megawati Soerkarnoputri
against theGovernmentafter her purportedremovalas the elected leader
of Parai DemokratikIndonesia(PDI)by decisionof the PDICongressin
Medan inJune 1996,the clarificationsfrom the judicial authority
concerned areas follows:
A. In the caseNo. 229/1996,Mrs. MegawatiSoekarnoputriand
Mr. AlexanderLitaay, intheir capacityas Chairpersonand General
Secretaryof the PDICentral Boardof the National Congress of
1993 respectively,representedby their legal proxyfrom the
DefendingTeam for Indonesian Democracy (TPDI),filed against:
1. 'FatimahAchmadas the representativeof the Congress
Committee;
2. FatimahAchmad asthe representativeof the Congress
Leadership;
3. Soerjadiand Buttu R. Hutapea- in their capacityas General
Chairmanand Secretary-General of DPP PDI of the Medan
Congress;
4. the Ministerof Home Affairs;
5. the Commanderof the Indonesian ArmedForces;
6. the Chief of the State Police,
all of whom are directly involvedin the organizationand implementation
of the Medan Congress.
B. The chargesbroughtby Mrs. MegawatiSoekarnoputriagainst
Soerjadiand some of his colleagues, the Commanderof the
IndonesianArmed Forces,the Ministerof Home Affairs and the
Chief of the State Policewere rejected by the Central Jakarta
DistrictCourt on 10 November1996.
C. The councilof judgesruled that the organizingof the PDI
Congresswas an internalmatterof the party whichhad to be
resolved internally withoutinvolvingthe Court. As defendants 2,
2 and 3 were PDIofficials,the courtwas not competentto handle
their case. While for defendants 4, 5 and 6 as they were
government officials, the court consideredthat their caseshould
be brought beforethe Courtof StateAdministration.
D. The Court of Second Instance of Jakarta,in its decision
No. 726/PDT/1997/PT.DKI of July 1997, accepted theappeal
submittedby Megawati Soerkarnoputra ind Alexander Litaayand
annulledthe decision of the CentralJakarta DistrictCourt ofpage 30
10 November 1996 whichhad refusedto try MegawatiSoekarnoputri
and AlexanderLitaayon the grounds thatit had no competenceto
try thecase.
E. In its ruling, the court stated that, in organizing theMedan
Congress,defendants 1, 2 and 3had infringed theParty Statutes
of 1994, and that defendants4, 5and 6 had broken the law
(article1365 of the Indonesian Private Code) by permitting,
supporting, funding and facilitating theCongresswhich had
resultedin the lossesand damage caused by the accusers. In this
connection,pursuantto Article 2 (1)of Act No. 14/1997on the
Judiciaryand Article50 of the Act No. 2/1986,the Court
instructedthe CentralJakartaDistrict Courtto proceedwith the
trial of the case.
F. All the accusedhave appealed for a reviewof this decisionof the
Court of First Instance,which is still being examined.
G. In conclusion,the allegationthat the .judgesin charge of the
case acted underthe directionof a non-judicialelement, namely
the Government,is totally unfounded since the decisionof the
Court favouredthe accusers against government officials.This
fact confirmsthat there was no inappropriateor unwarranted
interferencein the judicial process concerningthe case of
MegawatiSoekarnoputri.
Regardingyour requestfor the Government's permissionto lead a
mission to Indonesiato investigateand reporton the state of the
independenceof judges and lawyers, Ivery much regret to have toinform
you that in view of the Governmentof Indonesia'spresent engagement in
the preparationsfor the forthcomingfive-yearlysessionof the highest
State body, the People'sGeneralAssembly, aheadof the presidential
electionsof March 1998, the Government would prefer todefer such a
visit until a more opportune time. However,may I draw your attention
to the factthat the IndonesianGovernmentwill, as always, continue to
be at your disposal to provideyou with any informationyou may request.
&S you may be aware, the Governmentof Indonesiaputs high valueon the
work of all theUnited Nationshuman rightsmechanisms,includingthe
work of the thematic rapporteurs.In this respect,Indonesia received
the visit of the SpecialRapporteuron Torture in 1991,the Special
Rapporteuron Summary orArbitrary Executions in 1994 and, in 1995, the
highestauthorityin the field of human rights,the High Commissioner.
By the same token,I would also like to reiterate my Government's duty
and commitmentto ensuring thatthe independenceof judges and lawyers
is protected fromany unwarranted interference.
I can assureyou, Sir, that the independenco ef the judiciary,
guaranteedby the Stateand enshrinedin the 1945 Constitution, as well
as all other laws arerespectedand observedby the Government.
Similarly,the IndonesianAct on the Basic Principlesof the Judiciary
stipulatesthe principlesof a fairand impartial trial and of the
presumptionof innocence. page 31
Finally,I should like to reiteratethe commitmentof the
Governmentof the Republicof Indonesiato cooperate fully with all the
United Nations human rights mechanisms, includi thge Special
Rapporteur,on the independence ofjudges andlawyers. It is my
Government'ssincere hopethat this clarificationwill be submitted
in toto to the fifty-fourthsessionof the Commissionon Human Rights."
Observations
93. The Special Rapporteur thanks the Government for i responses. It is
not within the mandateof the Special Rapporteur to questionthe correctness
of domestic courtdecisions. But when suchdecisions aremade by courts or
tribunalsalleged to be wanting in independence and impartiality, thenit
falls withinthe mandate of the Special Rapporteur to inquire into the
allegations.
94. The information received by the SpecialRapporteurfrom various sources,
j I whose credibility he has noreason to doubt, and the contentsof the
Government'scommunication leave severai lssuesrelatingto the independence
of the courts unanswered. An applicationby Mr. Pakpahanfor a further review
before the SupremeCourt is pending. It is of concern, however, that he is
currentlyin custody serving his term of imprisonment, despite being in
hospitalreceivingmedical treatment.
95. The Special Rapporteurtrusts thatthe Governmentwill facilitatethe
carryingout by the Special Rapporteur of an in situ mission.
Iran (IslamicRe~ublicof)
Communicationto the Government
96. On 2 July 1997, the Special Rapporteur transmittea dn urgent appeal,
jointly withthe Special Rapporteurs on the promotion andprotectionof
freedomof opinionand expression,and on extrajudicial,summaryor arbitrary
executions,and the Special Representative on the situationof human rights in
the IslamicRepublicof Iran concerningthe writer and editor-in-chiefof the
l monthlyAdineh, Faraj Sarkouhi. Mr. Sarkouhi was reportedly a signatoryof
the 1994 declarationof 134 writers appealing for an end to censorshipin
Iran. Accordingto the informationreceived, Faraj Sarkouhiwas arrested
on 27 January 1997 afterhaving been heldincommunicadofor severalweeks in
November1996. Allegedly,he was triedin a closed trialon a variety of
charges includingespionage,which reportedly carries a mandatorydeath
penalty. It was also allegedthat he had notbeen permittedto appoint a
lawyerand that the trialwas closedto the public and international
observers. Accordingto some sources,a death sentencehad been pronounced.
Communicationfrom the Government
97. On 16 July 1997, the Governmentof the Islamic Republicof Iran provided
the SpecialRapporteur witha reply to the joint urgent appeal sent
on 2 July 1997. Accordingto the Government,Faraj Sarkouhihad left Tehran
'forGermany in November 1996 and anyallegation abouthis detentionduring
this period was thereforebaseless. Hewas arrestedon 2 February1997 onpage 32
chargesof espionageand attemptingto leave thecountry illegally. The
Governmentdrew attentionto the fact that Mr. Sarkouhihad never been tried
or convictedand thathe will enjoy all legalrights in conformitywith due
process of law, includingthe right to a fair trial and the right to a defence
lawyer.
Observations
98. The Special Rapporteurthanks the Governmentfor its prompt response.
Kenva
Communicationsto theGovernment
99. On 1 August 1997, the Special Rapporteur transmitte to the Government
of Kenya a communicationconcerningthe murderof lawyer S.K. Ndungi
on 22 April 1997. According tothe source, Mr.Ndungi frequently undertook
criminaldefencework for clients charged in significant armed robbery cases
like those implicatedin the February 1997 robberyof the Standard Chartered
Bank on Moi Avenue in Nairobi in which 96million Kenya shillingswere stolen.
In this connection,Mr. Ndungi had reportedly accused membero sf the police
force of taking someof the recovered stolen money.Furthermore,it was
alleged thatMr. Ndungi discovered evidence incriminating eithh ers own
clients,the police,,orboth. Mr. Ndungi wasreportedly followed by
unidentified personsin an unmarked carfor some time before hisdeath. The
source expressed concern that Mr.Ndungi could havebeen murderedbecause of
his professional activities.
100. On 19 August 1997, the Special Rapporteur transmitte to the Government
of Kenya a communication concerning the independen oce the judiciaryin
Kenya. He drew the Government'sattentionto the fact that the judicial
system wasunder-fundedand that the Presideno tf Kenya made "presidential
comments"publiclypredictingthe outcomeof pending cases. Pursuantto one
such comment,former Chief Justice Hancox reportedli yssueda circularto all
magistratesorderingthem to follow the President's directive. Further,it
was alleged that sensitive politicac laseswere not allocatedto judges who
are regardedas being eitherpro-humanrightsor completelyindependent. In
addition,the Special Rapporteur received allegatiot nsat lawyers supporting
human rightsor opposition parties were harasse dnd economicallysanctioned.
In this regard, lawyers suffered excessivt eax demands and they often received
threats,were summonedto the police station forquestioning and were asked to
surrenderclientsgfiles. TheSpecial Rapporteur also mentioned the following
specificcases:
(a) Regardingthe trialof Koigi Wa Warnwere, presidingChief
Magistrate Tuiyotwas reportedly biasedin favour of the Government because he
made, inter alia, numerous unwarranted intervention in the defence'scase and
denied defence counsel'srequest fora trial record;
(b) Concerningthe case of lawyer MbuthiGathenji,it was reported
that he had been arrested,detained and harassed due to his activitiesas'a
lawyer. Mr. Gathenji was retained to act on behalf of victims of violence
which had occurred in 1993 in the Westernand Rift Valley provinces and in page 33
pursuitof a civil action against those believed to be responsible.
Mr. Gathenjitook a number of statementsby membersof the armedforces which
allegedly implicated certai government officials;
(C) Concerninglawyer Wang'onduKariuki,it was allegedthat
Mr. Kariukiwas arrestedand charged withbelongingto an illegalguerilla
organizationreferredto as the Februarythe EighteenthMovement. According
to the source,Mr. Kariuki signeda confessionunder torture,which he later
withdrew;
(d) It has also been reported thatthe office of KituoCha Sheria,a
legal advice centre,was firebombedon one occasion and threatenew dith
burning;
(e) The Law Society of Kenyawas reportedlyfacing lawsuits
challenging theconstitutionality of its existence. The Societyhas stood up
for judicial independence and human rightsin Kenya.
Communicationfrom the Government
101. On 8 October 1997, the Governmentof Kenya providedthe Special
Rapporteurwith a reply to the urgent appeal sent on 1 August 1997 with regard
to thekilling of lawyer S.K. Ndungi. The Governmenttransmitted a copyof a
press statementissued bythe Attorney-Generalof the Republicof Kenyaon .
the investigation intothe case accordingto which a first investigation
report failed to identify the killer(s). Followingfurther investigations
on 11 September1997 a secondreport wasissued whichagain did not identify
the culprit. The Attorney-General then requestt ehde Directorof Public
Prosecutionsto place theinvestigationfile before the Chief Magistratein
Nairobi,who would appointa senior memberof staff to lead a public inquest.
Observations
102. The SpecialRapporteurwould like to thank theGovernmentof i(enyafor
its prompt response andwelcomesthe positivesteps taken in the case of
S.K. Ndungi. In this regard, hewishes to be kept informedof the latest
developmentsin and the resultof the investigation.
103. The Special'rapporteurremains concerned over the number of allegations
receivedwith regard to the harassmentof lawyersand the lack of independence
of the judiciaryin Kenya.
Lebanon
Communicationto the Government
104. On 19 August 1997, the Special Rapporteursent a communication tothe
Governmentof LebanonregardinglawyerDr. MohammedMugraby. Accordingto the
source, Dr. Mugrabyhad been threatened andintimidatedin connectionwith his
activitiesin defence ofhuman rights. On 23 September1994, Dr. Mugraby had
reportedly receiveda summonsfrom the Assistant Military Prosecutor,
Mr. MouyasserShuker, to explainhis defence ina militarycourt of
GeorgeHaddad, a socialactivist andan alleged victimof torture. It was page 34
furthermorereportedthat the Beirut Bar Associationhad rejecteda case
submittedto it by the Ministryof Defence whereinDr. Mugrabyhad been
chargedwith defamingthe Governmentof Lebanon. Inthat case, it was alleged
that the Governmenthad intercepted a fax sent byMr. Mugrabywhich discussed
the human rights violations suffereb dy his clients,and that three appeals
had been broughtby the Public Prosecutor to reverse the decisionsof the
Beirut Bar. It was also reported thatthe hearingson the appeal werenot in
accordancewith the LebaneseCode of CivilProcedure,and thatDr. Mugraby was
neither informed of the appeal hearin ngr was he servedwith a summonsor any
legalpapers, includingthe decisionsbeing appealedand the petitionof
appeal. Moreover,it was reportedthat the presidingjudge did not want to
listento the requestsof Dr. Mugraby andhad directed the record to state
that Dr. Mugrabyhad not answered theappeal.
observations
105. To date the Government of Lebanonhas not responded.
Malavsia
106. In his third report tothe Commission, the Special Rapporteu drew
attentionto a numberof lawsuits commenced in the Malaysiancourts for
defamationarisingfrom an articleentitled "Malaysian Justico en Trial"
(~/CN.4/1997/32, paras. 123 ff). Among the 14 lawsuits claimingin total
' MR9 40 million, 4 are against the SpecialRapporteurfor a total of
MR 280 million.
107. In the first of the lawsuits against the SpecialRapporteur
undertakenby two corporations, the High Courtof Malaysia in Kuala Lumpur,
on 28 June 1997, dismissedwith coststhe SpecialRapporteur'sapplication to
strikeout the action on the groundsof the immunityfrom legal process
enjoyed bythe United Nations. TheCourt directed him to file his defenceto
the action within two weeks, refusinga stay of execution pending appeal.An
applicationto the Courtof Appeal for stayof executionwas turned down by
the Presidentof the Courtof Appeal sitting as a single judge.
108. The Special Rapporteur filed hi sefence to the action on11 July 1997.
On 20 and 21 August 1997, the Special Rapporteur'sappeal tothe Court of
Appealwas heard by three judges.On 20 October,the Court of Appeal, ina
writtenjudgement,dismissed the appeal with costs.
109. The Special Rapporteur has since appliedto the FederalCourt, which is
the final appellatecourt, for leave to appeal to that Court. The hearingon
that application has beenfixed for 16 February 1998.
110. The SpecialRapporteur'sapplications to strike out the second and third
suitshave been stayed pending the outcomeof the decisionof the Federal
Court on the leave of applicationin the first suit. His applicationto
strikeout the fourth suit is set for hearing on 3 March 1998.
111. The remaining11 suits againstothers quotedor referredto in the
impugnedarticle arependingwith interlocutory applications file in court. page 35
112. In his third report,the SpecialRapporteuralso referredtq the
allegationsthat the Attorney-General of Malaysiawas proposingto amend the
Legal Profession Act 1976and expressedconcernthat if such a ,proposal was
acted upon, the independence of the legalprofessionwould be adversely
affected (paras.130 if). The Government,in a communicationdated
3 March 1997, assuredthe SpecialRapporteur,inter alia, that the Legal
ProfessionAct would notbe amended withoutconsultingthe Malaysian Bar.
113. In another development, on 4 November1997, the SpecialRapporteurwrote
to the PermanentRepresentativeof Malaysiato the United NationsOffice at
Geneva inquiring into disturbini gnformation receivedby the Special
Rapporteur. He was informedthat a circularletter dated16 June 1997 was
addressedto about 14 governmental departmentd sirectingthem notto send any
legal workto thethree named law firms on groundsthat they were
"anti-government".These threelaw firms happento be the largestin
Malaysia. The circularletter emanatedfrom the Ministryof Financeand
referredto a Cabinetdecisionof 19 February1997.
Communicationfrom the Government
114. On 28 January,1998 the Special Rapporteur received a letter
dated 23 January,1998 in responseto the allegations contained in his letter
dated 4 November,1997. The Governmentcontends,inter alia,that the
relationship between theGovernmentand the legal firms to which it gives its
legal work is essentiallythe same as the one between aclient anda service
provider. Aswith other clients, theGovernmenthas the right to givework to
whomever it wishes. The Governmentacknowledgedthat it takes fullcognizance
of principle 16 of the UnitedNations Basic Principles on the Role of Lawyers
and that the three legal firmswere free to conducttheir businesswith other
clients.
Observations
115. The SpecialRapporteurthanks the Governmentfor its response. While
the Special Rapporteur appreciatetshat the Governmentis free to choose its
lawyers,it has not answeredwhy in the circularletter dated 16 June, 1997
the three law firmswere characterized as "anti-Government".
116. In his second reportto the Commission(E/CN.4/1996/37, para. 162),the
Special Rapporteurindicated thathe was investigating allegationo sf
manipulationof the judicial system and had gatheredinformationand was
continuingto do so. The SpecialRapporteurhas received seriousallegations
calling into question the independenceand impartiality of the judiciaryin
certaincases involving certain lawyers representing commerciai lnterests.
Owing tothe events described in paragraphs106 through 111of this report,
the Special Rapporteurhas notbeen in a positionto effectivelyfollow-uphis
investigationsinto these allegations.page 36
Mexico
Communicationsto the Government
117. On 19 February1997, the SpecialRapporteurtransmittedan urgent appeal
to the Governmentof Mexico concerninglawyerBarbaraZamora, a member of the
National Association of Democratic Lawyers (ANAD). According tothe source,
Ms. Zamorawas the object ofharassmentand death threats. Itwas reported
that since December1996'somemembers ofthis association havebeen the object
of harassment. The office of lawyersJesds CamposLinas, Maria Luisa Campos
AragBn and JosB Luis Contreras, members ofANAD, was broken into. According
to the source, ANAD is a group of independentlawyersthat undertakescases
involvinglabourand indigenousrights. It was also reportedthat inresponse
to the recent waye of harassment, ANAD registeredforms1 complaintswith the
Officeof the ~ttorne~-~eneral, asking forthe appropriate investigatioa nnd
protection. However,as of the date of the appeal, no protectionhad been
provided and no investigation had been initiated.
118. On 19 August 1997, the Special Rapporteursent a communication to the
Mexican Government concerning Judg JeulioCBsar Sdnchez Narvdez. It was
alleged that thejudge had receiveddeath threatsfrom the Presidentof the
Upper Tribunalof the State ofTabasco,JavierLBpez y Conde. Reportedly,
Javier Ldpez y Condehad removedJudge Sdnche'z from his judicialfunctionsfor
failingto sign a judicialorder of imprisonmentagainstRenB Brando Bulnes,
former local deputy of the RevolutionaryDemocraticParty (RDP),who was being
tried for fraud and who had alreadybeen detained. Accordingto the source,
during the trial of RenB Brando Bulnes,when JudgeSdnchez orderedhis
release. Subsequently, the Presiden of theUpper Tribunal requested him to
change that decision. The source expressedconcernthat thethreatsmade
againstJudge Sdnchezmight be carriedout.
Communication fromthe Government
119. On 20 October 1997, the Governmentof Mexico provided theSpecial
Rapporteurwith a reply concerningthe alleged removal of Judge JulioCBsar
SdnchezNarvdez from judicialoffice. Accordingto the Government,the judge
was not removed from office, but resigned. Accordingto the Government,
Judge SZnchezwas seekingto avoid penalresponsibilityfor an alleged crime
of fraud for which he is being tried. He appealedat different levels of the
courts,but even theamDaro appeal was refusedon 19 May 1997. The Government
stated that Judge Sdnchezlscomplaint before differenh tuman rights
organizationsfor allegedviolationof his rights isunfounded andthat he is
seeking impunityfor a crime that he committed.
Niaeria
120. The Special Rapporteur notes that hedid notreceive anyresponsefrom
the Government withregard to the conclusionsand recommendationscontained
in the report on the situationof human rights in Nigeria submittedto
the fifty-thirdsessionof the Commissionon Human Rights (E/CN.4/1997/62
and Add.1). The SpecialRapporteur remains concerned about the ruo le law page 37
and, in particular,the independenceof judgesand lawyers. The Special
Rapporteurlooks forwardto reading the reportof the Special Rapporteur on
the situationof human rights in Nigeria (E/CN.4/1998/62).
Pakistan
Communications tothe Government
121. On 23 September1997, the Special Rapporteur sen at communicationto
the Governmentof Pakistanreferringto his previouscommunications
dated 17 January 1996 and28 September1995 in which he requestedto lead a
mission toinvestigate thestate of independenceof the judiciaryand the
legal profession.
122. On 16 October 1997, the Special Rapporteur sena tn urgent appeal
concerning retired Judge Arif Iqbal Hussain Bhatti, who waksilled in his
Lahore officeon 19 October1997; he had acquittedtwo Christianbrothers
accusedof blasphemyin a highlypublicized case in 1995. According to the
source, the judgehad receiveda seriesof threatsfrom Muslim extremists
during the campaign to impose the deathpenaltyon persons convictedof
blasphemy. At least seven judgesand lawyers who hadprovided legal aidto
people accused of blasphemy werr eeportedto have been targetedin drive-by
shootingsand assassinations. Among those was Asthma Jahangir,a lawyerand
foundingmember of Pakistan'sHuman Rights Commission,who had reportedly
received regularthreatsfrom Muslim extremist groups sincethe 1995 trial in
which she provided legalassistanceto the twoChristianbrothers.
123. On 24 November1997, the Special Rapporteut rransmitted asecond urgent
appeal to the Governmentof Pakistanon behalf of MohammadAkram Sheikh,
SeniorAdvocateof the SupremeCourt of Pakistan andoutgoing President of the
SupremeCourt Bar Association,who was allegedlyintimidated, threatened with
death and physicallyassaultedby two membersof workers for the rulingparty,,
the PakistanMuslim League(PML) . Accordingto the source,the assault was
becauseof Mr.Akram Sheikh'soppositionto policy of the PML on the judiciary
and the independence of the Bar.
124. In addition,the Special Rapporteur sena tn urgent appeal
on 28 November1997 to expresshis concernsover media reports of the tension
between the executive and the judiciary in Pakistan. It was reportedthat a
regional courtin Quetta in Baluchistanprovincehad suspended theChief
Justiceof Pakistan whilethe followingday, the SupremeCourt set asidethat
decision. The Special Rapporteur also remindt ede Governmentof Pakistan
that he had not received any responseto his previousletters in which he
expressedhis wish to undertake a missionto Pakistan.
125. On 11 December1997, the Special Rapporteur transmitted another urgent
appeal on behalf of Mohammad AkramSheikh, Senior Advocate of the Supreme
Court of Pakistanand outgoing Presideno tf the SupremeCourt Bar Association.
Further informationwas broughtto the attentionof the Special Rapporteur
regarding death threatsthat Mr. AkramSheikhhad receivedfrom three PML
workerswhen he was leavingthe SupremeCourt buildingon 18 November 1997
and when he was entering theSupremeCourt asan amicus curiae on
19 November 1997. At his request,the police had providedMr. Akram Sheikh page 38
with a security guardfor 3% days, but no protectionwas provided thereafter
despite repeated death threats. Thesource alsomentioned that thePML
Lawyers Forum has demanded,through thepress, that Mr.Akram Sheikh be tried
for high treason and sedition.
126. TheSpecialRapporteurremainsvery concernedat the high level of
tensionbetween the executiveand the judiciary. In that regard, he issued
on 1 December1997 a press statementto expresshis graveconcern at the
constitutionalcrisis developingin Pakistan.He made referenceto the
stormingof the SupremeCourt buildingby a mob on 28 November,following
which the Chief Justice wroteto the headof State concerning the securito yf
the courtand of individualjudges. TheSpecial Rapporteur expresseh dis
concern thatthe situationcould lead toa possiblebreakdownof the ruleof
law inPakistan.
127. In anotherdevelopment,the Special Rapporteur received information that
the SupremeCourt had listed for hearing between19 and 22 January 1998 the
contemptof court applicationsagainstMr. AkramSheikh and somejournalists
referred tothe SpecialRapporteurrssecond report(E/CN.4/1996/37,
para. 1991, togetherwith the applicationfor contemptagainst the Prime
Minister,which wasalleged to haveled tothe stormingof the Supreme Court
on 28 November 1997. In view of the implications of these cases for judicial
independence,the SpecialRapporteur wroteto the Governmenton 8 January 1998
indicatinghis interestin observingthe hearingsbefore the SupremeCourt in
Islamabad.
Communicationsfrom the Government
.128. In lettersdated 4 December1997 and 7 January1998, the Government
respondedto the allegationsmentionedin the specialRapporteur S letters
dated 16 Octoberand 21 November1997. With regardto the murderof retired
judgeMr. Arif Iqbal Bhatti,the Governmentreportedthat it was under
investigationand retaliation forthe verdict acquitting the two Chri.stian
brothers is not ruled out. As for Asthma Jahangir,she is provided with police
protection.
129. With regardto Mr. AkramSheikh,the Governmentsent,
on 25 November1997, a replyto the urgent appealtransmittedby the Special
Rapporteuron 21 November 1997. The Governmentof Pakistaninformedthe
Special Rapporteur that the versionof eventsdescribedin his urgent appeal
did not correspond to the one presentedby Mr. AkramSheikh,which was itself
controversial. The Governmentconfirmedthat Mr. Akram Sheikh was assisting
the SupremeCourt as amicus curiae. Itindicatedthat an incident took place
during thetea intervaland thata complaintwas made to the Supreme Court
about the conductof Mr. AkramSheikhby a lawyer,who claimed to have been
mistreated andabused by AkramSheikh. At the end of thatday's hearing,
Akram Sheikh made a statement before the Court in which he explainedthat he
had hada harshexchangeof wordswith one Kh. MuhammadAsif, who had hit him.
Accordingto the Government, Akram Sheikhemphasized thathe had freely
forgivenMr. Asif and he had neverfiled a complaint. Furthermore,the
Governmentadded thatno allegationwas made byAkram Sheikh against Senator
' PervaizRashid and that special security had been provided to Akram Sheikh. page 39
Observations
130. The SpecialRapporteurthanksthe Government forits response thusfar.
However,to date, the Governmenthas not responded tothe other communications
of the SpecialRapporteur. The SpecialRapporteurremainsvery concernedover
the recent eventsin Pakistanwhich bring into question the stato ef judicial
independencein thatcountry.
131. The SpecialRapporteur reiterateh sis interestin carrying outa mission
to Pakistan.
Papua New Guinea
Communication to the Government
132. On 19 August 1997,the SpecialRapporteur sent a communicationto the
Governmentof Papua NewGuinea regarding the case of Mr. Powes Parkop,lawyer
and ExecutiveDirectorof the Individualand Community Rights AdvocacF yorum.
Accordingto the source,Mr. Parkophad reportedly been arresteo dn
12 May 1997 and charged under article64 of PapuaNew Guinea'sCriminalCode
on two counts of unlawful assemblyon 25 and 26 March 1997 at the
PapuaNew Guinea Parliament.The sourcefurthermore alleged thaM tr. Parkop
had been arrestedbecauseof his role in organizinga peaceful demonstration
to protestthe Gover,nmentlsontractwith Sandlines Internationat lo provide
foreignmilitarypersonnelin Bougainville.
Observations
133. To date the Government has not responded.
Peru
Communication to the Government
134. On 4 September1997, the SpecialRapporteursent an urgent appealto the
Governmentof Peru concerningJudge Elba Greta Minaya Calle. Accordingto the
informationreceived,a resolutionpublishedon 13 August 1997 authorized the
PublicProsecutorto lodge a penal complaint against Elba GretaMinaya Calle
for allegedcrimesof violenceand resistance to the authorities, abuseof
authority against officialsof the juridical system and terrorism. It was
reportedthat she couldbe detainedat any time and held in detentionfor
15 days. Hpwever,it was reportedthat due to publicoutcry,the Government
publishedanotherresolutionwhich revokedthe first resolutionand ordered an
internalinvestigation into allegation of professional misconducbty Judge
Elba Greta MinayaCalle. The actionstaken againsther were allegedly related
to a habeas corpuswrit that she issuedorderingthe releaseof Carmen Cdceres
Hinostroza,who was saidto be in detention.
Communications from the Government
135. The Governmentof Peru sent two communications relating tothe state of
emergency. On 8 January 1997, theGovernment informet dhe Officeof the High
Commissioner forHuman Rights that on 18 December 1996a state of emergencypage 40
was declaredfor a 60-dayperiod in the Departmentof Lima and the Provinceof
Callao and extended fora 60-dayperiod to the Provincesof CoronelPortillo
and Padre Abad, in UyacaliDepartment,and the Provinceof Puerto Inca, in
Hudnaco Department.As a consequenceof the state of emergency,the exercise
of the following rights enshrinedin article 2of the Constitutionwere
suspended inthose jurisdictions:right to inviolabilityof the home
(para. 9), right to secrecyand to the inviolabilityof communicationsand
privatedocuments (para. ll), right to assemble peacefully(para.12), right
not to be arrested withouta writtenwarrant givingparticularsissuedby a
judge,or the police incase of a perpetrator caught in the act, and the right
to be broughtbefore an appropriate magistrate withi2 n4 hours or upon arrival
at destination (para. 24F).
136. On 6 June 1997, the Governmentinformedthe Special Rapporteurthat
on 23 May 1997, the state of emergency was extendedfor a 60-dayperiod in the
following provinces: Oxapampai ,n PascoDepartment; Satipo and Chanchamayo,
in Junin Department; HuancavelicaC,astrovirreynaand Huaytara, in
Huancav&licaDepartment;Huamanga,Cangallo andLa Mar, in Ayacucho
Department;Quimbiriand Picharidistricts,in the Provinceof La ConvenciBn
and Cusco Department; Chincheros, in ApurimacDepartment;in Hudnaco
Department (except in the Provincesof Puerto Inca,Yarowilca,Dos de Mayo and
in Huacrachuco district, in MaraAon Province),San Martin Department,
Yurimaguas district in AltoAmazonasProvince. Thestate of emergencyin
these territoriessuspended the exerciso ef the rights enshrinedin article 2;
paragraph F (9), (XI), (12)and (241,of the Peruvian Constitution.
137. The Government provided three repliesconcerning thecase of lawyer
HeribertoBenitezwho was the subjectof a letter transmitted by the Special
Rapporteuron 12 December 1996(see~/CN.4/1997/32, para. 148). In its reply
of 13 January 1997, the Governmentinformedthe SpecialRapporteurthat
HeribertoBenitez hadall the necessary facilities to carry out his functions
as a defenceattorneyon behalf of his clientsbefore allinstancesof the
SupremeCouncilof MilitaryJustice. The communication indicated that
Mr. Benitez hadbeen suspended by thm eilitary prosecutor for a three-month
period pursuantto a provisionof the Military Codeof Justice. Mr. Benitez
appealed thisdecision; however, his appealwas dismissedby the Superior
Military Tribunal and subsequentlyhe was sanctionedfor a five-monthperiod
during whichhe would not be able to represent hisclients beforemilitary
instances.
138. On 28 January 1997, the Governmentof Peru providedthe Special
Rapporteurwith furtherinformationabout the situationof HeribertoBenitez,
stating thaton 20 December1996, Heriberto Benitezwas grantedamnestyunder
Law No. 26700.
139. On 6 February1997, the Government sent a letterto the Special
Rapporteurconfirmingthe amnestygrantedto HeribertoBenitez under
law No. 26700.
140. The Government provided two repliesconcerningthe attackon the
Presidentof the ConstitutionalTribunal,Dr. RicardoNugent, who was the
subject ofa communicationsent by the Special Rapporteur on 19 November 1996.
On 25 January1997, the Governmentsent a reply explaining that the attack page 41
which took placewas directednot against the Presidentof the Constitutional
Tribunal but againstan unidentified person whom, accordingto the police
report, criminalswere trying to attack and/orkidnap whenthey saw the police
who were presentto protect thePresidentof the Constitutional Tribunal.
They shot at the policemen,killing twoof them and injuringanother. The
DirectorateagainstTerrorism (DINCOTE) indicated thatthere wasno evidence
of a terrorist attackagainstthe Presidentof the ConstitutionalCourt.
Informationwas also provided concernint ghe protection provided for
Dr. Nugent and his family.
141. On 30 April 1997 the Governmentof Peru sent further information about
the attack. Accordingto the policereport,a terrorist attack was considered
implausible owingto the way andcircumstancesin which the incident took
place, the f'actthat terroristsuse different methods,and that other
characteristicsare typicalof terroristsactions.
142. On 10 September1997, the Governmentprovided theSpecial Rapporteur
with a reply to his urgent appealof 4 September 1996 concerninJ gudge Elba
Greta MinayaCalle. The Governmentexplained that the personal libertyof
Judge MinayaCalle isnot in jeopardyas there is no criminal complaint
pending against her.However, anadministrative complaint is being
investigatedby the supervisory authoritieo sf the judiciary relating to an
unlawfulhabeas corpus writ that the judge had issued infavour of Carmen
CaceresHinostroza. The writ wasunlawful,accordingto theGovernment,
because Judge Minaya Calle had issued it withouta requestby the person
concernedor another actingon his/herbehalf andwithout the interventionof
the prosecutor,as required bylaw. Moreover,she hadordered the releaseof
Carmen Caceres Hinostroza, whowas under investigation for crimeo sf terrorism
and/or treason,before issuinga judicialdecision,which constitutesthe
crime of abuse of authority, orviolenceagainstand resistanceto the
authorities. On 9 June 1997, the DINCOTE communicated these facts to the
Public Prosecutor for cases of terrorismwho filed an administrative complaint
of professionalmisconductagainstJudge Minaya Calle withthe supervisory
authoritiesof the judiciary. At the same time, the Public Prosecutor
conveyedthese facts to the Ministryof the Interior,requestingthat a
ministerial resolution be issuedauthorizinga penal complaintto be lodged
againstJudge Minaya Calle. On 7 July 1997, the Ministryof the Interior
issueda ministerial resolution authorizin tghe Prosecutorto lodge, on behalf
and in defence of the State, a penal complaintagainstJudge Minaya Calle for
the crimes of violence againstand resistanceto the authorities, abuseof
authority,actionsagainstthe juridicalsystem,-andterrorism. However,the
Ministryof Justice,after learningabout this resolution,notifiedthe
Ministryof the Interiorof the existenceof the administrative complaint
againstJudge Minaya Calle; it was necessaryto wait until a verdict was
reachedon that complaint beforea penal complaint could be lodged against the
judge. Consequently, on14 August,the Ministryof the Interior issued a
ministerialresolutionrevokingits resolutionof 7 July and authorizedthe
Public Procurator tocontinue withthe complaint before the supervisory
authorities. Therefore,accordingto the Government,the personal liberty of
Judge Elba Greta Minaya Calleis not in danger,as the resolutionof 7 July,
had been'revoked.page 42
Communicationsto the Government
143. On 13 February1997, the Special Rapporteur sent an urgent action to the
Governmentof the Philippineswith respect to allegationsof harassmentand
death threatsmade againstthe followingjudges,human rightslawyersand
lawyersworking for theFree Legal Assistance Group (FLAG) inthe Philippines:
SenatorPaul Roco, Justice FrancisGarchitorena,JusticeJose Balajadia,and
attorneysJose Manuel I.Diokno,Efren C. Moncupa, LorenzoR. Tanada 111,
Wigverto R.~anada Jr., Arno V. Sanidad,Alexander A.Padilla, Theodore0. Te,
and Francis P.N. Pangilina. The two judges and the above-mentionedlawyers
were reportedlythreatenedthroughout 1996and subjectedto unauthorized
surveillanceand break-insof their offices. Theongoing threats and the more
recent death threatsthat they received between31 January and5 February 1997
are reportedlyconnected to their involvementin the KuratongBaleleng casein
which 26members of the Philippine National Policehave been chargedin
connectionwith the May 1995 murder of11 suspectedbank robbers. The source
believedthat it is likely that thethreats camefrom members of the
Philippine National Police.
144. The SpecialRapporteur transmitted an urgent actionon 3 March 1997
concerningdeath threats made against Senator Paul Roco, Chairmanof the
Senate Committeeon Human Rights and Social Justice. These threata sre part of
the same series of threatening actions directea dt judges and lawyers which
were the subjectof the previous urgent appeal sent by the Special Rapporteur.
145. On 28 May 1997, the SpecialRapporteursent a follow-upletter to remind
the Governmentthat he had not receivedany responseto the two previous
urgent actions he transmitted on 13 Februaryand 3 March 1997.
146. TheSpecialRapporteursent anurgent actionon 4 August 1997, jointly
with the WorkingGroup on Enforcedor InvoluntaryDisappearances,on behalf of
a lawyer, Nicolas Ruiz, who was abducted with hisdriver, JeveePatalita,on
12 July 1997 by armedmen dressed in blackfrom a restaurant in San Juan,
Metro Manila. AttorneyRuiz's family fileda petition for habeas corpus
before theSupreme Court,but the competent authorities are said tohave
deniedhaving thetwo men in theircustody. It has also been reportedthat
attorneyRuiz had acted as counselfor a person whom theGovernment allegedly
suspectsof being involvedin illegalactivity.
147. On 11 December 1997, the Special Rapporteur sent a follow-upletter to
remind the Governmentto respond tothe urgent appealsent on 4 August 1997
concerningthe abductionof Mr. Ruiz and Mr. Patalita.
Communications from the Government
148. On 3 June 1997, the Government providet dhe SpecialRapporteurwith a
reply regardingthe alleged death threats made against the FLm AGmbers and
human rights lawyers in connectionwith their involvementin the prosecution
of police officers in the KuratongBaleleng case(urgentactionsdated
13 Februaryand 3 March 1997). The Government informed the Special Rapporteur
that the Criminal Investigation and DetectiveManagementof the Philippine page 43
National Police arein the process of conductingthe necessaryinvestigation.
The Secretaryof Justicehad also requested the National Burea of
Investigationto conduct a parallel investigation of the case. Accordingto
the Government,there wereno significant signsof threats againstthe members
of FLAG and the other humanrights lawyers owing to the fact that some lawyers
did not see the necessityfor theprotection being offered by thesecurity
officers. TheGovernmentprovided theSpecial Rapporteur with a copy of a
letter dated 30 April 1997 sent to Mr. Ralph Zacklin, Officer-in-Chargeof the
Office of the High Commissioner for Human Rights,in which it assuredhim that
steps had been taken to protect the physicalwell-beingof the lawyersso that
they could perform their duties without fear.
Rwanda
Communicationto the Government
149. On 23 January 1997, the Special Rapporteur sent to the Governmentan
urgent appeal jointlywith the Special Rapporteur on tortureand the Special
Rapporteuron extrajudicial,summaryor arbitrary executions with regar to
the trials forgenocideand crimes againsthumanitywhich are in process in
Rwanda. Accordingto the source,provisions embodied in international
instrumentsrelatingto a fair trialhad not been fullytaken into account.
It was furthermore reported that some of the accusedhad had no access to a
lawyer and that due processwas restricted. Some of those accused hadbeen
sentencedto death. It was also reportedthat there had been casesin which
the accused were subjectet do uncivil treatment before the hearing. Some
prosecutors.andjudges had reportedly received onlu yp to four months'
training,and impartialityand the independence of the judiciaryin general
had reportedly not been guaranteed.
150. On 30 September1997, the Special Rapporteursent an urgent
communicationto the Governmentof Rwanda with regard to alleged violationsof
the independenceof judges and lawyers in relationto thegenocidetrials.
Accordingto the source,judicialofficers hadbeen dismissedor forced to
leave the country infear of their livesbecause of military and government
interferencein their duties. Some officialshad reportedlybeen arrested,
detainedand charged withhavingparticipatedin the genocide. Othershad
allegedly beenthreatened,disappearedor even killed. It was also reported
that defendantsin the genocidetrials hadbeen deniedaccess to files and
cross-examination of prosecution witnesses.It was further alleged tha'
judicialand governmentofficialshad turned down the right to legal
representationand courts had failed to notify defendantsof their rightto
have a lawyer during interrogatioa nnd before trial. It was also reported
that prosecutors,assistant prosecutors and defence lawyers had been
threatened,arrested,disappearedor killed. More specifically, lawyer
Murengezi, accused of havingparticipatedin the genocide,had disappearedon
30January 1997whereas lawyerMunyagishali,also accusedof having taken part
in the genocideand charged with crimes agains humanity,had been arrestedin
February1996. It was furthermore reported that there had beenno objectivity
in the commissionde triaae,the screeningcommitteeset up to recommend the
releaseof detaineesin cases of insufficientevidence.page 44
Observations
151. To date the Governmenthas not responded. The Special Rapporteurhas
had the benefitof readingthe status report on the genocide trials
to 31October 1997issued bythe United Nations High Commissionef ror Human
Rights Field Operationin Rwanda (HRFOR).The Special Rapporteur also had the
advantageof readingthe reportof the SpecialRepresentativeof the
Commissionon the situationof human rights in Rwanda submitted to the
fifty-secondsessionof the GeneralAssembly (A/52/522,annex).
152. The prevailingpoliticalsituationin Rwanda has madeit difficult for
an independent and impartiaj lusticesystem to functioneffectively. Thelack
of adequate resources, both financialand human, is a matter of serious
concern. The Special Rapporteur supports the recommendationo sf both the
HRFOR and the Special Representative insofar a they relate to the improvement
of the justice system.
South Africa
153. The Truth and Reconciliation Commissionis entrusted withthe taskof
gathering evidencefrom various institutions, organizations,agencies,
corporationsand individualsin order to understandthe role played bythem in
contributing to the violationand/orprotectionof human rights during the
apartheidera, i.e. from 1 March 1960 to 10 May 1994, and to identifw yhat
changesare repired to preventthose abuses from happeningagain.
154. The SpecialRapporteur learned that the judgesof the South African
judiciary were invited to appearbefore the Commissionwhich was inquiring
into a wide range of issues pertainingto the legal systemduring thatperiod
and how the legal system,including individual judges, had contributedto the
violationsand abuses of human rights. The Special Rapporteur late lrarned
that several judges,including theChief Justice,the former Chief Justice and
the Presidentof the ConstitutionalCourt, refrainedfrom appearingbefore the
Commission. However,many judges submittew dritten representations.The
Chief Justice,the Presidentof the Constitutional Court, the Deputy President
and the Deputy Chief Justice,togetherwith the formerChief ~ustice;
submitted ajoint written submission. Theformer Chief Justice,who was the
Chief Justice during the relevantperiod, submitted aseparatewritten
submission. He too did not appear before the Commission.
155. In the face of this failureto appearin person beforethe Commission, a
representativeof the Commissionconsulted the Special Rapporteuo rn the
proprietyof issuing subpoenas to the judges to compel them to appearbefore
the Commission.
156. The Special Rapporteur advisedthat itwould not be proper to compel the
judges to appear before the Commission, howeve noble its objectives.
Subpoenaing the judges for examinationby the Commissionas to their conduct
during the relevantperiod wouldamount to reopening cases decidedby them,
examiningthe evidence, and generally reviewingthe correctnessof the
decisions. Though judges are accountable, their accountabilit does not
extend to their having toaccountto anotherinstitution fortheir judgements.
That would seriously erodenot only the independenceof the judges concerned page 45
but also the institutional independence of th judiciary. Further,such
compulsioncould violatethe immunity conferred on judges. Finally,if they
are subjectedto public examinationin the glare of the media, public
confidencein the judiciary could be undermined, bearingin mind thatprior
to 1994 there was no written constitutionin South Africa withan entrenched
bill of rights for judgesto apply andon the basis ofwhich torule on the
legalityof legislation. For these reasons,the SpecialRapporteuradvised
that the Commission,having the benefitof written submissions from many
judges, could make its findingswithouthaving tocompel them to appear
personally.
Communication tothe Government
157. On 10 November1997, the Special Rapporteur transmittet do the
Governmentof Spain a communication concerning th trial of the Executive
Board of the politicap larty Herri Batasuna. According to the source,some
members of the Spanish Government made statements to the press that could
affect theindependenceof the court. Allegedly,the Ministry of the Interior
stated to the press on 9 May 1997 that in his opinionthe membersof the
Executive Boardof Herri Batasuna should receive prison sentences of more
than eight years. Furthermore, the newspaper El Mundo publishedon
15 September 1997an article reportingthat, according toa source from the
Ministryof the Interior,it was expected thattwo of the threemagistrates
composing thecourt wouldbe in favourof the conviction whilethe other one
had not shown a clearposition.
.Communication from the Government
158. On 4December1997, the Governmentof Spain providedthe Special
Rapporteurwith a reply to the above allegations. The povernmentstatedthat
the informationreceivedby the Special Rapporteurwas not correct. Firstly,
with respect to astatement allegedly made to the pressby the Ministerof the
Interior,that statement was in fact taken from a radio interviet whe Minister
gave on a varietyof subjects. On the issueof the trialof the Executive
Board ofHerri Batasuna, the Minister said 'we are all morally certain that
they should be sent to prison not for eight years but for many more. The crux
of the issueis that moral certaintyis not sufficient; whatis needed is
legal certainty". Secondly,the Government notedthat the information
publishedin El undoreferredto "somesources", which did not includethe
Ministryor the Executive. Moreover,the text was "guardedand cautious" as
it stated that "everythingdependedon what happens duringthe actual trial".
Observations
159. The SpecialRapporteur thanks the Governmentfor its response. He
notes, however,that the Minister'sadmitted statement on the radio could be
construedas the Executive attempting to influence the court on what it ,
expectsthe sentence to be.page 46
Switzerland
Communicationsto the Government
160. On 13 June 1997, the SpecialRapporteursent a joint communicationto
the Governmentof Switzerlandwith theSpecial Rapporteur on torture
concerning thecase of Mr. ClementNwankwo,a Nigerian lawyer and human rights
activist and Executive Directorof the Lagos-basedConstitutionalRights
Project,who was arrestedin Geneva on 5 April 1997 and detainedfor five days
incommunicado. He was in Geneva to attend the fifty-thirdsession of the
Commissionon Human Rightsand wasarrestedon suspicionof shoplifting. It
was alleged that during and after his arrest,Mr. Nwankwo wasseverelybeaten
and kicked by the Genevapolice. The Special Rapporteur was alsi onformed
that Mr. Nwankwo wasdenied the right to obtain counsel of his choice and was
made to sign the record of the proceedings beforethe examiningmagistrate
without the presence of his counsel. Hewas also compelledto sign this
document despite the fact that he was unable to read itbecause it was in
French. Finally,he was reportedly tried, convictedand sentencedwithouta
lawyer to defend him inwhat appearedto be a trial not open to the public,
raising questionsas to independence and impartialityof the tribunal.
Mr. Nwankwowas convictedof theft andsentencedto 20 daysz imprisonmentand
ordered to be expelledfrom thecountry. The sentencewas suspended.
Communicationsfrom the Government
161. On 27 June 1997, the Governmentsent a responseto the Special
Rapporteursto inform themthat the Deputy Permanent Representativeof
Switzerlandto the international organizationsin Geneva conveyedto
Mr. Clement Nwankwothe regretsof the Swiss authorities,includingthose of
the police. Accordingto the Government,the ministerin charge of Geneva's
Departmentof Justice,Policeand Transportsimmediatelyset up an
administrative inquiry into treatmentMr. Nwankwo received while in police
custody. After receivingthe conclusionsof the inquiry,he sent a letterto
Mr. Nwankwo requestinghim to accept the apologiesof the Governmentand
informinghim thatappropriatemeasureswould be taken against themembers of
the police concerned. The Governmenatlso indicatedthat Mr. Nwankwo could
commencecivil proceedingsagainst theState for damages.
162. On 28 July 1997, the Governmentsent additionalinformationregarding
the case of Mr. Nwankwo. Copiesof judicial decisions along with a response
to a questionnairefrom the Association forthe Preventionof Torture were
provided to the Special Rapporteur.The Government informed the Special
Rapporteurthat an appeal court on 20 June 1997had acquittedMr. Nwankwo of
the charge of theft but convictedhim of the charge of resisting arrestin a
public place. However,the administrative inquiry concludedthat the
treatmentthat Mr. Nwankwo received was not in conformitywith acceptable
The Government drewattention tothe fact
principlesof police behaviour.
that disciplinaryactionswould betaken against thefour police officers
involved in the case. page 47
Observations
163. The SpecialRapporteur thanks the Governmentof Switzerlandfor its
prompt responseand welcomesthe positivesteps taken in the case. However,
he noticed that no informationwas providedwith regard tothe allegedlack of
independenceof the tribunal which convicted MN r.ankwo in defianceof the
principlesof due process. Further,the Special Rapporteur views with a
certain concernthat despite the fact that the appeal court had set aside the
convictionof theft imposedon Mr. Nwankwo,the same courtfound it fit to
convict himon the chargeof resisting arrest for an offencewhich he never in
law committed. The convictionis particularly disturbing in the light of the
The
apologiesextendedto Mr. Nwankwoby the Governmentof Switzerland.
SpecialRapporteurhas been notifiedthat a further appealby Mr. Nwankwo to
the Court of Cassationis contemplated and thereforerefrains from drawing any
conclusionsfrom the facts hehas thus far received. However, in the lightof
the Government'sapologiesto Mr. Nwankwo and its suggestion thathe could
file a civil suit against the State forcompensation,the Special Rapporteur
recommends thatthe Government offer Mr. Nwankwo adequate compensation,
therebyavoidingprotracted civil litigationand theresultantcosts and
expense.
Tunisia
Communicationsto the Government
164. On 1 August 1997, theSpecial Rapporteur sena tn urgent appeal to the
Governmentof Tunisia regarding lawyerRadhia Nasraouiwho had reportedly been
intimidatedand harassedon the nightof 29 April 1997 for reasons relatingto
her work in defence of victims of torture andother human rights violations.
Accordingto the source,Ms. Nasraouilsoffice was broken into, her computer
stolen,her phone disconnected and her filesinterfered with. It was further
reported thatshe had been the victim of similaracts of intimidationin 1994
and in 1995.
165. On 4 December 1997,the Special Rapporteur sena t letterto the
Governmentto request a joint mission to Tunisia withthe Special Rapporteur
on the promotionand protectionof the rightto freedomof opinion and
expressionin order to assess the human rights situation regarding freedomof
opinionas well as the independenceof judges andlawyers. In this regard,
the Special Rapporteur referretdo the report of the High Comm.issionerfor
Human Rightsof July 1996 to the Economic andSocial Council(see ~/1996/87)
following hisvisit to Tunisia.
Communicationfrom the Government
166. On 30 September1997, the Government providedthe Special Rapporteur
with a reply tohis letter dated 1August 1997 concerningthe case of
Ms. Nasraoui. In its response, theGovernmentinformedthe Special Rapporteur
that the robberyof the office of Ms.Nasraoui wasthe subjectof a judicial
investigationbased upona complaintmade before thecompetentauthoritieson
30 April 1997 by a colleagueof Ms. Nasraouirs. Furthermore,the Government
stated that thetwo thieveshad been arrested andhad admittedto their
crimes. They had been sentenced, oneto eight months1 imprisonmentby thepage 48
First InstanceCourt ofTunis; and the other to four months by the juvenile
magistrate. However, the Government denied the allegationsthat Ms. Nasraoui
had sufferedintimidationand harassment.
Observations
167. The Special Rapporteur would like to thank theGovernmentof Tunisia for
its promptresponse. In addition,the SpecialRapporteurreiterateshis
interest invisiting Tunisia,jointlywith theSpecialRapporteuron the
promotion and protection of the right to freedomof opinion and expression,
and hopesto receive a positive responseto this request.
Turkev
Communicationto the Government
168. On 21 May 1997, the Special Rapporteursent an urgent appeal to the
Government ofTurkey concerningthe following lawyers:GazanferAbbasioglu,
SebabattinAcar, Arif Altinkalem,Meral Bestas,Mesut Bestas, Niyazi Cem,
Fuat Hayri Demir, Baki Demirhan,Tahir Elqi, Vedat Erten,Nevzat Kaya,
Mehmet Selim Kurbanoglu,Hcsniyedlmez,Arzu Sahin, ImamSahin, SinasiTur,
Ferudun Celik, Zafer Gur, Mehmet Bi~en,Sinan Tanrikulu,Edip Yildiz,
AbdullahAkin, Fevzi Veznedaroglu,SedatAslantasand Hasan Dogan. It was
allegedthat these lawyershad been broughtto trial on charges relatingto
one or more of the followingsituations:
(a) Lawyerswho repeatedlyconduct defences before the State Security
Court, in which case theyare equatedwith the defendantst cause and, assuch,
are termed "terroristlawyers" by the police,the public prosecutorsand by
the courts;
(b) Lawyers appearingin trialsbefore the State SecurityCourts in
cases of torture and extrajudicialkillingsand who have been qualifiedas
"publicenemies";
(C) Lawyers whopubliclycomment onthe humanrights practicesof
Turkey;and
(d) Lawyers who commenton the Kurdishsituation.
It was further alleged that these lawyers were triedunder emergency
legislationwhich allows forincommunicadodetentionfor a period of up to
30 days. It was also saidthat the lawyers havesuffered economic sanctions
and/orhave been pressured,harassed,tortured,or become the target of
"unknownperpetratorNkillings. In addition,the Special Rapporteur referred
to his letterto the Governmentof 16 February1996 in which he expressedhis
wish to undertake a missionto Turkey.
169. On 27 May 1997, the Special Rapporteurtransmittedan urgent appeal to
the Governmentof Turkey concerninglawyer MahmutSakar,Vice-Presidentof,the
TurkishHuman Rights Association (IHD) and President ofits Diyarbakir branch.
Accordingto the source,Mahmut Sakar was being detainedand interrogated
under the threat of torture. The DiyarbakirIHD office had reportedly been page 49
searched andmagazines, booksand correspondence werc eonfiscated. It was
alleged thatMahmutSakar had been detainedsolelyon accountof his work asa
human rights advocate.
170. On 7 October1997, the SpecialRapporteursent a joint communication
with the Special Rapporteuron the promotionand protectionof the right to
freedomof opinionand expression concerning the lawyer,writer and doctorof
philosophyEsber Yagmurdereli. According to theinformationreceived,
Dr. Yagmurdereli was tried an sentencedto death in1978 for 'tryingto
changethe constitutional order by force",underarticle 146 of the Turkish
Penal Code. Thesentencewas commutedto life imprisonmenton accountof a
physicaldisability. In 1991, Esber Yagmurdereli benefited from aconditional
amnesty whichsuspendedsentencesfor offencessuch as the ones containedin
article146 of the Turkish Penal Code.As a resultof a speechmade afterhis
liberation,the IstanbulSecurityCourt convicted him of \\separatismna,nd
sentencedhim to 10 months' imprisonment.The sentence was confirmeb dy the
High Courtof Appeals. Consequently,the Samsun Criminal Court decide dhat
Esber Yagrnurderelwiill be obligedto serve the remainderof his previous
sentence. An appeal wasreportedly turned downin mid-September.
171. On 7 November1997, the SpecialRapporteurtransmittedan urgent appeal
to the Governmentof Turkey concerning JudgeKamil Sherif,who resignedfrom a
case on 6 November 1997 becauseof allegedintensepressure to influence the
case from some foreign and Turkishinstitutionsand politicians. The judge
was presiding overthe trial in the town of Afyon of nine police officers
charged withthe death of the leftist journalis Metih Goktepe in
January1996. The SpecialRapporteur alsoreferredto his letters tothe
Government of16 February 1996and 21 May 1997in which he expressedhis wish
to undertake amissionto Turkeyin order to investigate, in situ,allegations
concerningthe independenceof judgesand lawyers.
Communicationfrom the Government
172. On 27 November1997, the Governmentprovidedthe Special Rapporteur with
a reply to the joint urgent appealsent on behalfof Esber Yagmurdereli.
Accordingto the Government,Mr. Yagmurdereliis a memberof an illegal
terroristorganizationcalledTHKPC (Revolutionary Pioneer of the People)and
was sentenced to life imprisonmentfor having violatedseveral articles of the
TurkishPenal Code, includingincitement torobberyby use of force and
incitementto looting. He was released under a conditional amnesty
on 1 August 1991,but committed another crimb ey contravening article 8of
the Anti-TerroristLaw (incitement to violenceagainstthe State through
propaganda) only a monthafter hisrelease. TheTurkishPenal Code stipulates
that if a person to whom a conditionalamnesty isgranted commitsanother
crime,he or she would be requiredto serve the whole remainderof the
previoussentence along with the new sentence. Mr. Yagmurdereliwas then
sentencedto 10 months1 imprisonmenton 28 May 1997 by the IstanbulSecurity
Court and as he was requiredby law to serve the remainderof his previous
sentence,he was consequently sentenced to a totalof 23 years of
imprisonment. His appeal wasrejectedon 20 October1997. However,
Mr. Yagmurdereliwas releasedon 9 November1997,on the grounds ofhis poor
health, incompliance with article 339/2 of the TurkishCode of Criminal
Procedure. The Government emphasized tha the releasedoes not constituteanpage 50
amnestybut a releaseon health grounds,and hissentence hasbeen suspended
for one year. The durationof this suspensionis subjectto the discretionof
the Chief Public Prosecutor.
173. On 5 January 1998, the Governmentof Turkeyprovided the Special
Rapporteurwith a reply to his letterdated 7 November1997 regardingthe case
of Judge Kamil Serif. Accordingto the Government,Mr. Serifasked to resign
as he claimedto be under pressurefrom publicopinion, themedia, the press
and other circles,includingsome political parties.He claimed,furthermore,
that he had been receivingletters and telephone callsfrom Istanbul,Ankara
and Australia,and thathe had been hurt and disturbedby local and foreign
reportsthat he had been bribed. The Government added that Mr. Serifhad
declared hisunwillingnessto continueto preside over the trial as he had not
been in a positionto maintainhis impartiality. ThSpecial Rapporteur was
also informedthat inconformitywith article 29 of the Turkish Code of
CriminalProcedure a judge may request to be excusedfrom a case on legal
groundsand the approval orrefusal of the judge'srequest is decidedby the
SuperiorCourt. In this regard, therequestof Judge Kamil Serifto be
excusedfrom thecase of Mr. Metin Goktepe isbeing consideredby the Sandikli
High CriminalCourt.
Observations
174. The SpecialRapporteurthanks the Governmentof Turkey for its responses
and welcomes the releaseof Esber Yagmurdereli, albeiton a suspendedsentence
for health reasons.With regardto the case of Judge KamilSerif, it is not
clear whatsteps the Governmenthad taken to protecthim from inappropriate
and unwarrantedinterferencewith thejudicial process as provided in
principle 4 of the UnitedNations BasicPrincipleson the Independenceof the
Judiciary. The SpecialRapporteurhas not receiveda responseto his earlier
interventionsdated 21 and 2'7May 1997. In addition, the SpecialRapporteur
reiterates his interest incarryingout a missionto Turkey and hopes'to
receive a positiveresponseto this request.
Venezuela
Communication tothe Government
175. On 19 February 1997, the SpecialRapporteurtransmittedan urgent
appeal to the Governmentof Venezuelaconcerning thecase of lawyers
Adrian GelvesOsorio andJoe Castillo,members of theHuman Rights Officeof
the ApostolicVicariate. According tothe source,the Public Ministrybrought
chargesof "usurpationof functions"againstthe Officeof the Apostolic
Vicariate. Thechargeswere alleged to have arisenfrom two complaintssent
in November 1996 to the GeneralCommanderof the State Police,concerningthe
death of a civilianat the handsof police agents. These complaintscontained
detailed information on the incident,including thenames of witnesses,and
requestedan investigation. The VenezuelanPenal Code defines thefelony
charge of "usurpationof functions"as the "unauthorized assumption or
exerciseof public, civil or military functions". Accordingto the source,
there wasno basis for such charge. It was reportedthat one of themain
tasks of this organizationis to monitor arbitraryacts of violence committed
by police forces,especiallyagainst indigenous people. Registrationof page 51
formalcomplaintsis part of its functionsand is supportedby the
constitutionalright of petition (article 67of the Venezuelan Constitution)
Observations
176. To date the Governmenthas not responded.
Yusoslavia
Communicationto the Government
177. On 19 August 1997, the Special Rapporteursent an urgent appealto the
Governmentof the Federal Republicof Yugoslaviain which he expressed his
concernabout Mr. NikolaBarovic,a lawyer and human rightsadvocatewho,
during a live televisiondebate,was reportedly assaulted and seriously
injuredby a bodyguardof Mr. Vojislav Seselj, leaderand presidential
candidatefor the Radical Party and Mayorof the Belgrade municipality of
Zemun. Accordingto the source,Mr. Barovic defends many politically
unpopular clientsin the formerYugoslavia,includingboth ethnic Croats and
Serbs as well as Albanians. He was reportedto havedefended a family of
ethnic Croats evicted fromtheir homes followingan eviction orderissuedby
the Zemunmunicipalitywhich was reportedlyoverturnedby the Belgrade
District Court on 10 July 1997. It was also reportedthat Mr. Barovic has
spokenout publicly against the authorities1policy of ethnicallymotivated
evictions.
Observations
178. So far, no responsehad been receivedfrom the Governmentof the Federal
Republic ofYugoslavia.
V. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
179. The SpecialRapporteurviews with some concern the increase dumber of
complaintsconcerningGovernments1identificationof lawyerswith their
clients'causes. Lawyers representing accused persoi ns politically
sensitive casesare often subjectedto such accusations. Generallyonly a few
lawyers undertakesuch cases in any jurisdiction;hence, they are usually
quite visible. Identifyinlgawyers withtheir clients1 causes,unless there
is evidenceto that effect,could be construedas intimidatingand harassing
the lawyers concerned. The Governmentshave an obligation toprotect such
lawyersfrom intimidationand harassment.
180. The United Nations Basic Principleson the Role of Lawyers expressly
call upon Governments to guarantee,inter alia,the following:
"16. Governmentsshall ensure that lawyers(a) are able to perform all
of their professional functionswithout intimidation, hindrance,
harassmentor improper interference; (b)are able to travel and to
consult withtheir clientsfreelyboth within theirown countryand
abroad;and shall not suffer,or be threatenedwith, prosecutionorpage 52
administrative, economic or other sanctionsfor any actiontaken in
accordancewith recognizedprofessionalduties, standardsand ethics.
"17. Where thesecurityof lawyers is threatenedas a result of
dischargingtheir functions,they shallbe adequatelysafeguarded by the
authorities."
Principle 18 expresslyprovides that "Lawyersshall not be identifiedwith
their clientsor their clients' causesas a result of discharging their
functions."
181. Hence, the SpecialRapporteur considers that where there is evidenceof
lawyers identifying with theirclients'causes,it is incumbenton the
Governmentto refer the complaints tothe appropriatedisciplinarybody of the
legalprofession.
182. There has also been an increasein complaints ofGovernments1
non-compliance with internationally accepted standao rdsdue process,
particularlyin terrorist-related crimes, raisingquestionsconcerning the
integrity,independenceand impartialityof the courts. The Special
Rapporteuris continuingto gather information on this issue in order to
betterunderstandthe difficultiesfaced by Governmentsin complyingwith the
standardsof due process in such cases and the extentof miscarriagesof
justice committed by thc eourts.
183. The Special Rapporteur also expressesconcernover the number of
countrieswhere judges are appointedon a provisional basis withous tecurity
of tenure in breachof principles 11and 12 of theUnited NationsBasic
Principles on the Independenceof the Judiciary. Such appointments become a
serious threatto the independenceof the judiciary; particularlw yhere the
provisional judges are conferred with the sampeowers as permanent judges and
remainon the bench for a prolonged perioo df time. Such provisional judges
are vulnerableto executiveinterferenceand eventensions withinthe
judiciary.
184. The problems facedby countriesin transitionin providingan
independentand impartialjustice systemare a matterof concern. It is
acknowledged that in additionto the lackof financialresources,the lackof
human resources and of infrastructureare seriouscontributingfactors.
The prevailingsituationsin Rwanda, Cambodiaand some countriesin the
Eastern European region are some examples. The Special Rapporteur continues
to liaisewith the Activitiesand Programmes Branchof theOffice of the
High Commissioner for Human Rightsin this regard.
B. Recommendations
185. Arising from someof the observationsmade earlier on the country
situationsand on his activities,the Special Rapporteur wishet so make some
specific recommendations. page 53
186. In the caseof Switzerland,the Special Rapporteur recommendsthat the
Swiss Governmentoffer adequate compensation to Mr. ClementNwankwo and
thereby avoid any protracted civil suit before theSwiss courts and the
resultant cost and expense.
187. In paragraph 4 of resolution 1994/41 creating this mandate the
Commissionurged all Governmentsto assist theSpecial Rapporteur inthe
discharge of his mandate and to transmitto him all the information requested.
In the spiritof this paragraph the SpecialRapporteur urges Governmentsthat
have not respondedto his interventionsand requests to undertake missions to
do so.
188. The Special Rapporteur requests all MembeS rtates to respond promptly to
the questionnaireon the implementation of the Basic Principleson the Role of
Lawyers whichis expected to be sent toGovernmentsbefore the end of 1998 by
the Centre-forInternational CrimePreventionin Vienna. In this regard, the
Special Rapporteuralso requestsGovernments thathave not responded to the
earlier questionnaire on the implementationof the Basic Principleson the
Independenceof the Judiciary to do so as soon as possible.UNITED
NATIONS
Distr.
EconomicandSocial GENERAL
Council
E/CN.4/1998/39/Add.5
25 March 1998
Original: ENGLISH
COMMISSION ONHUMAN RIGHTS
Fifty-fourth session
Item 8 of the provisional agenda
QUESTION OF THE HUMAN RIGHTSOF ALL PERSONS SUBJECTED TO ANY
FORM OF DETENTION OR IMPRISONMENT
Rewort of the Special RaDworteur on the independenceof iudses and lawvers.
Mr. Param Cumaraswamv,submittedwursuant to Commission on Human Riahts
resolution1997/23
Addendum
Recent develowments inMalavsia
1. In paragraph 109 of his report (E/CN.4/1998/39),the Special Rapporteur
stated thathis application forleave to appeal to the FederalCourt (the apex
appellate courtof Malaysia) from the decisionof the Court of Appeal
dismissinghis appeal to that courthad been fixed for hearingon
16 February 1998. In the present document, the Special Rapporteur wishes to
report on the outcome of the hearing of that application.
2. His applicationwas heard on 18 and 19 February 1998 by a panel of three
judges presided over by the President of theCourt of Appeal. The President
was the same judge who had earlier refused the Special Rapporteur's
applicationto the Court of Appeal for a stay of execution on the judgementof
the High Court referredto in paragraph 107 of the report. He also sat on the
Court of Appeal which affirmed the award ofM 10 million (US$ 2.5 million)
which decision was referred to and commented upon in the impugned article.
The businessman who was awarded that sum is currently theplaintiff inone of
the four suits against the Special Rapporteurfor defamation arising from the
impugned article. Another judgewho heard the appeal on 18 February was one
of the three judges in the controversial AverMolek case (see E/CN.4/1996/37,
paras. 158-160) which was extensivelycommented on in the impugned article.
GE.98-11337 (E)3. ~t the conclusion of the hearing, the Federal court, by a unanimous oral
decision, dismissedthe applicationwith costs. In dismissing the
application,the Presiding Judge madea statement to the effect that the
Special Rapporteur was neither a sovereign nor a diplomat but, in layman's
terms, an "unpaid,part-time provider of information".
4. The immunity determinedand asserted by the United Nations
Secretary-Generalwas from "l'egaprocess of every kind" in respect of wor'ds
spoken or written by the SpecialRapporteur in the course of the performance
of his mission. Despitecogent authoritiescited to the Court to the effect
that the issue goes to jurisdictionand therefore should be decided in limine,
the Court agreed with the lower courts that theissue of immunity from legal
process wouldbe decided at theend of the process.
5. The application was for leave to admit the appeal as one with merit for
appeal. Yet it was summarilydisposed of. There were many admitted
previouslywith far lessmerit thanthe present one.
6. The Special Rapporteurhas exhausted allhis legal remedies on the issue
of immunitybefore the domestic courtsof Malaysia. He is now exposed to
legal process of full trials on the four defamation suits for a total sum of
RM 280 million (US $70 million).
Observations
7. The decisions of the Federal Court andof the lower courtswere against
the weight of authorities and do not accord with internationallaw. The
courts failedand/or refused to recognize the United Nations jurisprudenceon
the issue. They defied the authorityof the Secretary-Generalof the
United Nationsand, moreover, both the Court of Appeal and the Federal Court
ignored the1989 Advisory Opinion ofthe InternationalCourt of Justice in the
Mazilu case. There was a virtually totaldisregard for the United Nations and
its procedures. . .
. . ..
KUALA LUMPUR!The
United Nations Specizl
mission next year. ~eature -
Malaysia'rs eputation forjudicial integrity isbeingquestioned. David Samuels
reportsthatastringofcontroversialcoud redsi-ons isthecauseofmounting
concernamongthecountry's lawye arsdforeign investors .
I -
n April 101995, aMalaysian. ThecourtcasestowhichPura M$157 million($63million)
1,alvyerwas granted an ex refers,andwhichcouldseriously purchaseby InsasandMegapolitan,
parfeorder by the country's affectMalaysia'rseputationasa tworelatedinvestmenhtouses,of
High Court, compellinga company majorfinancialcentre, have all 30%ofAyerMoIek's sharesin 1994.It
toregister ablockofsharesownedby occurredwithinthelastyear.They producedverysharpcriticismsfrom
his client.Thekindof thingthathap- cameto aheadinAugust,whenthe theCourt ofAppeaIaboutthe
pensallthetirite.
AyerMolekcase provoked arow conductofoneplaintifflawyerVK
Butthiswasnoroutinecase.This betweentheFederalCourtand the Linghamof VK Lingham & CO,
wasdifferent.It endedith CourtofAppeal,Malaysia'tswo accusinghim ofillicitmanoeuvring
Malaysia'supremecourtcriticizing highestcourts.Becauseofthecases, toputthecase befoiea HighCourt
thecountry'sappealcourtinterms Malaysiansfromallwalksoflie have judge ofhischoice.
whichwerefarfromjudicial,andthe openlystartedtoquestionthe . Eventhoughtheyhadnotasked
presidentoftheMalaysian,Bar independenceoftheirjudiciary. AyerMolektoregistertheirshares,
..Counciltalkingof"veryserious OnAugust28,PuanHendon,the InsasandMegapolitanwenttothe
questionsovertheadministrationof president ofthMalaysianBar HighCourtonApril101995.They
: jdce inMalaysia". Council,issued apressstatement informedthejudgethattheyknew
ThecaseinquestionwastheAycr sayingthe"differing viesnd from"reliablesourcesthat'Ayer
Molekcase~. nlit wasthe cqmments"ofthetwocourtsraised ~olik, iasked,wouldrefuseto
.. culminationofa seriesofcourt "veryseriousquestionsoverthe registertheirshares.Thiswasbecause
decisionsincbrnmercialcaseswhich administrationofjusticeinMalaysia1'.thecompanyhadnotregistered8
hascauseamanyofAialaysia'lseading In response! Eusofhin,Malaysia's separate,12%blockboughtbya
lawyersto raisedoubtsabout
most S-eniojrudgeandthe.authorof nomineecompany,PFANominees.
hlalaysialegalsystem. ' . theFederalCourtjudgme.ntwhich Later affidavitsshowthatHaji
"TheultimatefearaboutAyer criticizedtheCourtfAppeal,issued MohdHalmi,thechairman ofAyer
Molekandallofthesecasesisthat astatementsayingtheBarCouncil Molek,had,bythetimeofthecourt
rth~ymeanMalaysia isgoingtl~cway shouldhavediscussedthematter hearing, becomeconvincedthat
ofother~siancountries, suchas withhimprivatelybeforetheywent Insas,MegapolitanP, FANominees .
Indonesia,Thailandand the "toyellinthepress". andVincentTan,oneofMalaysia's
Philippines," saRaphaelPura,the Politiciansalsobecaninvol\led. most prominentbusinessnlcnw, ere
hialaysiacorrcspol1dcnttotheAsirlit LimKitSiang, secretargencralto
"alignedtoeachothcrtoensurethat
\\h1Sfrccr~o~crnn"l: heimplication theDAP,Malaysia'slargcst both thelnds shares..[atidthPFA
isthat,justlikethoscothcrcointrics, oppositionparty,saidthattherewas sharcslycreregistered". ebclievcd
hfala).siaisbecon~i~gplace\clrcrc "ancwcrisisofco~~fidencoeverthe that$yjointlybu~in~42% ofAycr
justiceisnow'upforbid'." judiciaryinhlalaysia. rimeAlinistcr A4olcstockinsccrct,InsasandPFA
Untilnow,Malilysia\,vhichclljoycd A9ahnthiAr lohnkndtoldthcBar hadbrcachcdMalaysia'tsnkcover
cconomic~ro~tqohf9.5%inthcfirst CouncilandChinonScptembcr7 codc.Conscqucntl)AycrA4olckk
halfof1995,hasbccnnblctoportriiy thiltthcirsquabble\\.as boardhaddccidcdtllatrcgistration
iisclfasacountryInrg,cllyrcefroin "dcstiibilizithch.I;\laysioIncgal rcqucstsfrclmcithcrInsosnnd
systc111. . .
corruption.Asarcsulr,thcgorcrnmc~lt hlcgnpcditnn,rI'FANominees,
hasSLICCCC~C~illattractingsoCfthc ~vuyldIlcrcfuscd.
biscst foreignllnlilcsin TheAyerMolek case I'licafiidiivs11o\vllafHaji's
mnniifacturing. pplComputers, ThecnscofIi~sn ~l,;A4rgnpolitnn bclicfrcsultcdfronlmcctingsto
Citroci~h,.lotoro, cncmlElcctric -~ot~riacvAsjrrMalckRrrDbcr \\~hic.rwas invitcdonhlarch31 t.
, - Feature
toboth,wcrepresent ateach.On thetwoshareholders,whohad not
censuredthelowercourtforils
both occasions,Hajiwas requestedto comments.InanAugust 12 doneanything atallabouttheir
"speedup theregistrationofthePFA- judgment, itaccused theCourtof sharesforsixmonths,suddelllywere
hcldAyerMolckshares': Appealofitself"bringingthe ableto gotocourtanduscthislust
IntheHighCourt on April 10, resortcon~pulsion procedure. WhatI
administration ofjusticinto
Lil-lghanw~asgrantedarmpurfe disreputeuby"departingfrom donotunderstandishowtheycould
orderdesignedtocompelAyerMolek sobriety"and"going off^ I frolicof get ajudgetothreaten Ayerh.Iolek
toregisterthe30%blockofshares itso.rvn",TIeederalCourtsaidthat, withcontemptofcourt beforeAyer
boughtby InsasandMegapolitan. bydiscontinuingthe HighCourt Molekhadactuallyrefused todo
anything."
Judge AzmelA~Inmoow r,hositsinthe action,AyerMolekcould"bedeemed
SpecialAppellate Divisioofthe tohaveconceded thecxprrrfeorder': Anothersays:"At Lingham's .
HighCourt(whichdealswith ItexpungedthesectionsoftheCourt request, thisjudgeevenadded
administrativecases),ndistheChief ofAppeal'sjudgment which criticized nlandatoryimprison~nrntto the ex
judgeoftheHighCourt,madethe pnrteorder. And thenherefusedro
Lingharn.
order;Theorder, whichwasserved OnSeptember8,thesharesalesto hearAyerMolek'scasefortwoweeks
onApril11,directedAyerMolek's InsasandMegapolitana , ndPFA ortosuspend the ordera,lthough
. . officerstoregistertheshareswithin Nominees,were finallycancelleadnd .,suchordersonlyhaveaIife-spanof
48hoursor faceimprisonment. police investigationtothe.whole twoweeks."
AyerMolekapplied tohavethe affair cease. lllawsuitswere
orderrevokedonApril 13.Azme! withdrawnaweeklater. Privilegedscheduling
agreedtobeartheirrequestonApril Therearevariousaspectsofthe way
27but refusedarequesttostzythe Somethin rg tten thattheFederalCourtdealtwith Ayer
injunctionpending .thathearing. AlthoughtheFederalCourt MolekthatalsoconcernMalaysia's
A'yeMr olekreluctantlyregistered overturnedthelowercourt'sdecision, lawyers.':Thecasemadeitintothe
Insas'sandMegapolitan'sshareson theCourtofAppeal's comments FederalCourtatastartlingspeed:'
. April14 andtookthemattertothe broughtthe AyerMolekcasetothe ' saysone."Iamappealingthesame
CourtofAppealfourdayslater. Ayer attentionoftherestofMalaysia'lsegal sortofozderatthemoment. fexpect
thattogetit in&theFederalCourt
~olekwas seekinga declarationthat profession.Onelawyernotes:"The
theHighCourthad beenunjustand Coug ofAppea1madeitclearthatit will takeatleastsixmonths.InAyer
askedtheCourtofAppealtoreverse thoughtsomethingfunnyhadbeen' Molek,itonlytookLinghamfour
.'theeffectsofa registrationthathad goingonintheHighCourtinthat days."
,.beenmadeunderduress.Thehearing . case.Thatwaswhytheyput'ina a. l hat sorofprivilegedscheduling,
wassetforJuly26. Shakespearequoteabouttherebeing says~omrn~ ~homas,isusually
Atthehezring,theCourtof 'something ro,ttenintheStateof preservedforemergencysituations:
g Appeal,sayingthatit was"usingits Denmark:Itwasareferencetothe "Inthetextbooks,theexampleofan
inherentpowertostopfurther buildingtheHighCourtisin,which emergencysituationtheygive is
whereabulldozerisalreadyoutside
injusticefromoccurring':gaveAyer is calledDenmarkHouse."
MaIekanordertostopInsasand TommyThomasofSkine andCO yourhomereadytostartknockingit
Megapolitanexercisinganyrights wouIdlike toknowhowLinghan down.Youshouldnotbeabletoget
overtheirshares.Fivedayslater,it managedto"overcometwohurdles an expeditedappealina caseabout
delivereditswrittenjudgmenton thataresupposed tbmakeit shares."
Otherlawyersfeelthetoneofthe
Aye~b4olek' asppeal.Itcalledthe impossible forthismisfilinto
situationp.roducedbytheHigh . happen.First,youhavetogetthe FederalCourtjudgment,whichwas
rC,ourt'treatmentofthecase"an registryto admitthecaseinthe deliveredonAugust 12 byChief
injusticeperpetratedbyacourtof wrongdivision.Thenyouhaveto JusticeEusoffa,ndespeciallyits
law". persuadethejudgehimselftoletit criticismsoftheCourtofAppea1,ar
TheCourtofAppealalsostrongly stay.The factthatthejudge agreedto too.persona1. nesaysthat,inthe
. criticizedLinghamfortakinga entertainthiscasereally iasurprise': AyerMolekjudgment,Eusoffmake?
commercial mattert,heregistration Anotherlayer says:"Lingham's severaldeparturesfromhis
ofshares,toa divisionoftheHigh actionwaslikefilingacommercial established styofwriting:"Eusoff
matterin thefamilycourt.Itshould certainlyhasanidentifiable.s'tyole
Courtwhichshouldonlydealwith
administrativelaw casesI.tczllcdhim havemadehimlookincredibly hisjudgments,which,afterall,we
an"unethicallawyer"andsaidthat stupid.But,ofcourse,it turnedout havebeenreadingnowsince 1982,
hisconductwouldgive"right- that itwentsuperwell." whenhefirstbecame ajudge.
mindedpeopletheimpressionthat Yctanotherlawyerf:oundtheterms Normally,'and unlikehere, hewrit1
inaverystaccatoform,usingshorl
somelitigantsareableto choose'the oftheexparteorderthatLinghapl
judgebeforewhomthey wishto obtnincdhighlyirregular:"First,itis sentencesandwithoutmakingn~i~
. appear".InsasandMegapolitan literallyunhcnrdoftobegivena referencestoothercasesas
appealedtotheFederalCourt, compulsion orderwhichforcesa authorities.ccertainlydocsn't
Malaysia'hsighestcourt,whichhclda companyto registeryourshares quote bigchunksoftcx: fromothc
casesin thewaythilthcdidinthis
hearing o-Aug--t I. l .t excep.l*.-c-1.,,Av:r ;c vnlnqt case.At lcnsa aunrtcrofthis ....-,:..; , .
Feature -
fron othercases.Normallyitwouid couldnotbe heard foratleast six Judgeofthe HT~
beat most acoupleofcarefully shouldproceed.Azrnelsaidthatthey $
chosen,verybriefquotes,ifapoint months,andso MRNapplicdfora
pre-trial injunctiontostEAC from shouldialktoChiefJusticeEusoff.An j
needstobemadeclear." sellingthesharesafterAugus531: hourafterVorhah'shearing,Low !.
Thelawyeralsopoints out thatthe A hearingonMBfH's application Hop in^threwoutEAC1s
judgment was writteninthe 11days tookplaceinfrontof judge Vohrah - consolidation requesta,nnouncing
betweenAugust12,whenthe
onJune 21 and helatersaidthat he thatthesubsidiaries'casewould
judgmentwas delivereda ,ndthe would announcehisdecisionon remainbeforehim.
hearingonAugust 1."Myown August 23, AfterEusoffinformedthepartits
experience:'hesays,"isthatittakes But;onAugust 11,thesubsidiaries, onAugust 25 thathecouldnotsee
theFederalCourtatleast 21to30 representedby Lingham,alsostarted themuntil September6,thedispute
daystoproduceajudgment': courtproceedings againsEtAC, wassettled.Thesharesweresoldon
KAnanthamofSkrine&COsaysthe aimed at stoppingEACfromselling August 30forM$115 million.
FederalCourt's decisitnexpunge thesharesafterAugust 31.They
partsoftheCourtof~~~eal's issuedanOriginatingSummonsin Procedural'gymnastics
judgmentwasfortuitousforLingham:
CourtNo 5oftheCommercial TommyThornas,whoactedforEAC,
. . "TheBarCouncilwasgoingtoorder Divisionofthe Highcourt (Judge .saysthatthe"proceduralgymnasticsn
Linghamtoaccountforhisbehaviour Malek),seekingadeclarationthat inwhichthesubsidiariesengaged
inAyerMolek,usingtheCourtof EAC'sshareswere"encumberedby duringthatdispute"raisequestions,
Appeal'sommentsabouthimasthe thedisputebetween MBMand MC". thatcryoutforanswers"A. lawyer
buis,ifnecessar, nwhichto
Thefollowingday,thesubsidiaries closetoCheang &Ariffsaysthatthe
disciplihim.Butthen,onthebasis starteda second,identical, seotf firmstepped downbecause"it ' .
ofanIndianauthoritywhichLingham proceedingsagainstEACinCourtNo disagreedwithwhatwasbeingdone
had found,theFederalCourt 2ofthe CommercialDivision(Judge bythelegalteamworkingforthe
expungedtheimportantsectionsof LowHopBing). subsidiaries'i
theCourtofAppeal'sjudgment, OnAugust14,theCourtNo2 Tho.maspointstothesequenceof
cuningthegroundfromundertheBar proceedingswereservedonEAC.On thetwoidenticallegalactionsstarted
Council'feet." thesameday,thesubsidiariesfiledan intwodifferentcourts,oneofwhich
expartenoticeofdiscontinuanceof wasthendiscontinued,asproofthat
More concerns theirCourtNo 5proceedings. thesubsidiariesweretryingtoget
IntheaftermathofAyerMolek, EACrespondedbyfilingtwo theircasebeforeoneparticularjudge,
concernsaboutLingham's tactics identicalconsolidatinpplications namelyJudge Low HopBing:
havearisen again.Thistimeinthe Vohrah'sandLowHop1s courts, "LinghamtoldJudgeVolirahon.
disputebetween theMalaysiaBorneo requestingthatthesubsidiaries' action August19thattheactiontheyhad
finance~oldin~s (MBM) andthe beaddedtothefirstactionbefore startedinCourtNo5,onAugust ill
4 EastAsiaticCompany(EAC).Again, ~ohrih.Atthispoint,Deang and hadtobe withdrswnonAugust 14
.therewereanumberofprocedural Arifsteppeddown asMBfH's lawyers, becauseoftypingerrors..Thatsimply
peculiaritieswhichleadParam toberepIacedbyTHSu8cCo. cannotberight.Ifyou compare'the
. CumuraswamisUnitedNations LOW HopBingheldahearingon main documentfromCourtNo5,
SpecialRapporteuronthe theconsoIidationapplicationon whichissupposedtohavecontained
IndependenceofJudges2ndLawyers, August 18.HegrantedEAC's request somanytypingerrorsthatithadto
to.saythatthecaselookslike"avery toadjournthematteruntil after bewithdrawn, withthemain
obvious,perhapsevenglaring, ~ohiah's~ugust23decision. Vohrah documentputintoCourtNo2[Low
example of.judge-choosing': alsoheldahearingonthe Hop Bing'scourt],youwill seethat
dtsough hestressesthathehasnot consolidationrequestandasked thereareabsolutelynodifferences .
finishedhisinvestigations. Linghamyhy thefirstproceedingshe between themA . nd thereareonly
Thiscaseconcernedaclaimfor hadstarted (inCourtNo 5)hadbeen two inconsequentiadlifferences
breachofcontractforthesaleofland. discontinued.Thisyas thefirstEAC betweenthesupportingaffidavits."
Theland)vasboughtfromEACon knewofthediscontinued "Theirresistibleinference:'
hlarch8 1995byb4BfH.Thccostwas proceedings.Linghamrepliedthat Thomassays,"hastobethatthey
theCourt No5summonswas
hlSl l5 millio($46million),paid wantedLowHopBing,and 011lLOW
forby72,424,058hlBWsharcs. A withdrawn"bccausc ithadtyping HopBing,toheartheircase.When
secondagrccmcnt presentedEAC mistakes", cvcryoncclscinvolvcdagreedthata11
from sellinthcsharcsbcforeAugust OnAugust23,Vohrahrcjcctcd theactionsshouldbcbrought
31,andgave th,reeMBMsubsidiarics MBfH'sinjunctionapplicationand, togcthcrinJudgcVohrah'scourt,it
therigh.toarrangcanysnlconceone the followingday,skcdifanyparty was,Lingham whoinsistcdthe
\\.asallowcd. objcctcdtohishearingbothcascs. subsidiarie'aseshouldstaywith
Onhlay6,MRfHstartedanaction OnlyLinghamdid,insistingthat the LowHopDing".
in thccivilDivisionofthcHigh subsidiaries'caseshouldrcnlain
Court,allegingEAC hadbrokcnits bcforcLowHop Bing.Vohmhthen VK tlngham
co,.L.,~,,.,,,yArJlJ:*"vacant discl>argc?~i:~~.i~!ffi~~j~~aiil TheMalnysianBar Co~ii~il~ii~iL
1ri:111dinstructerhr nlrti~tn ehntucth-t1:rrnhntnrinlifiin .
Feature
Thorns, Linghanthasbuiltup"a understandsthesedecisionsp, t..o$" counselattheMalaysianlawKrnlof
smallportfolio"ofclients,allof have hadtostart ShookLin & Bok, hesays:"Itwould
whom"areincrediblyrichandvery both theLtcllectualca;acityofour beunfair tonameanynames,but
loyaltohim,mainlyMalaysian courtsandtheintegrityofol1.r- thcreissomeconcernaboutallthis
cntreprcncurs". judges,"TommyThoii~ns sllysthat amongforeignbusinessmenbasedin .
Soisit possible thatthespeculationmanyMalaysian lawyershiveillready Malaysiap, articularlyGong those
surroutidirtgtheseandothersof whohavelitigationpending."
decidedwhich of thosecxplilnations
Lingham'smostrecent cases could be theybelieve. AnotherseniorMalaysian attorney
acaseofsourgrapes?Afewdefeated has alsowitnessedthisgrowing
opponents snvingfacebyusingtheir Economic consequences concern."Thereisageneralconcern
senioritytomakemischiefforhim? Thedangeristhat,ifthesc amongforeignclientsaboutthecivil
justicesystem:'hesays."Thefirst
OnememberoftheBarCouncil perceptionscontinueand become
rulesthisout:"The peopleLingham morewidelyheldt,heycoulddamage question thatthoseclients askme
hasbeenup againstrecentlyareall Malaysia'soodstandingin theeyes nowis'howsafearetheMalaysian
veryseniorcounselandhavenoneed offoreigninvestors. neconomist courts?'knowseveralpeople whose
to indulgeinsuchsourgrapes. People fromoneoftheinternnlionalbunks multinationalclientshavebeen
likeTommyThomasandLohSiew which hasofficesinMalaysiaisnot askingthemquestionsspecifically
CheangofCheang & Ariffhave been sureiftheaffairhasstartedto alter abouttheAyer hfolekcase."
aroundformpnyyearsandarefrom perceptionsofthecountry. Itis,he Therewasnosignof theseconcerns
locallyrenownedfirms.Their says,"oneofthose intangiblissues. atthebeginning of1995,when the
reputationsarealreadyabsolutely Itdependsonthegroundswellof WorldEconomicForuma , Geneva-
assured.Theyarehardlypeoplewho opinion.AtthemomentIdon'tthink basedbusinessconsultancy,
wouldfeelthattheyhadsometiow anygeneralopinion aboutMalaysia researcheditsLVorlCompetitiveness
losttheircredibilityasadvocates beingcorrupthasstartedto Report.Itwaspublishedin .
becauseofthesecases!' crystallize". September.Aspart oftheresearch,
"Bes'ides,"eadds,"Idonot think Accordingtotheeconomist,those majorcompanieswere asked what
thesecaseswereeverreallyallowedto crucialforeignmanufacturerslike levelofconfidencetheyhadinthe
gettothemeat of'thedispute. othey Malaysiaforanumberofreasons: justicesystemofthecountryinwhich
neverbecameabout Lingham "Landhas beenwellpricedandthe theywerelocatedO . nthebasis ofthe
, batteringanyofhisopponentsin Malaysiangovernmenthasalways 59Malaysian repliesitreceived
-openargumentbefore thecourt.The beenverypro-foreigners. Sithas be~een JanuaryandApril,the '
caseshavealltendedtofinish allowedthemtoownthe bulkofthei~ WorldEconomicForumranked
immediatelyafter thepre-trialstage. ownplants.Partlyitisalsobecause ~ala~siaasoneofthetop 25 systems
Theywereallaboutprocedureand theEnglishlanguageiswidely intheworld,and placedit.aboveboth
manoeuvring". spoken,andthereisasurplusof theUSandUnitedKingdom.
VK Linghamdeclinedtocomment skilledlabourinthemarket.'' ~urnurasw&n~ think Malaysia
on thequestionsraised bythesetwo But, andthisismoreimportantin wouldnotbe ableto repeatthatresult
decisionsandthosedescribedbelow. thelightofthenewmood ofgloom atpresent."complaintsarerifethat
aroundMalaysia'c sourts,the certain highlyplacedpersonalitiesin
Terriblesituation economistthinksthatcompanyfaith thebusinessandcorporatesectorsare
Thepeoplewhoaremostconcerned inMalaysiahas"alottodowith abletomanipulatetheMalaysian
abouttheimplicationsofthese recent Malaysia'Us K-derivedtraditionofa system ofjustice,hesays."ButIdo
casesareMalaysia'5s,500lawyers. goodlegal framework".pecially as, notwantanyofthepeople involved
?''Thepresentsituationis terrible," he'pointsout,settingupoperations tothinkIhaveyetmadeupmy
saysThomas,"onehearsallsortsof inanewcountryisaprocess often mind."
gossip". fraught with"disputesandteething
Ariotherseniorlawyer, hoprefers problems". TheTanlibelcase
nottobenamed,agreesthereis a new Soitwouldbecauseforconcernto Cumuraswamysaysthat,although
' feelingaround theprofession. thosein the higherlevelsoMalaysia] thesecomplaints"onlyreallycameto
"Peopleareverydisheartened and publiclifeifthecountry'sjustice prominencebecauseofthejudge-
disillusioned,"hesays."Thereisa systemhadindeedstartedtogo.the choosingallegations in thAycr
generalfeeli-gthaAycr Molck wayofitsAsianneighbours.And Molekaffairp, eoplefirststarted to
shouldnothavehappenedtheway thcreisevidencethat,inthewakeof question theintegrityofthejudiciary
thatitdid.In particular,peoplefelt theselegalproblems,Malaysian- . aftertheM$10million($4million)
that,forsomereason,inthatcase the basedcornpanicsarcbeginningto libclaward whichVincent Tan
FederalCourtwaschoosing losefaithinthe Malaysian courts. receivedonOctobcr22lastyear.",
Tanisthe headofthe Bcrjaya
deliberatelytobeveryunfair." ParnryCumuraswamyw , ho.hasa
And,accordingto this lawyer, global ntandnteromtheUnited Croup,one ofMalaysia'lsargest
Malaysian1awyers;bewiidereb dythc Nations tonvestigatecomplaints companies,whichhas diverse
manyunusualaspectstothese suchas thosecirculatinginMalaysia busincssintcrcsts ranging from
decisions,havefoundthat theyarc at prcscnt,reports1atehas gaming venucs,tosnopping~nnlls, Feature
aoneofthe internationalbanks previouslyhadbeenabout aalf TornrnyTittSmaosfSkr&nCO '"7
based in Malayaescribesnas millionMalaysiandolla"eadds believesthat thedecision looks:?,
"the archetypal bussutocrat, that, attheoutset,fewhadthoughtincorrectt asanoffshoredeal
compleielyinseparable from his Tan'scaselookedstrong:"The coreofne under law,sotheUK
I
company.Tanisthemajor thearticlewasnotaparticula'fly'seemedIikeitwasthe properforum
stockholderin,andthedriving foroutrageousreferencetomoney- forthedispute."CSFirstBostonand
behind,thecompany.Hegoesout politics.Tanleapt onitand tried tojayasettledthe donpute
and getsthecontracts,andhiresanput theworstpossiblemeaningon it,tober2.Bothagreed nottoapply
firesthestaff': one thatperhapswasn'tjustified."orany costs.Linghamactedfor
Tansuedoverfour articles ~inghamactedfor~aninthecase. BerjayaIndustrial.
publishedintheAugustandOctober
1993issuesofMalaysiIrrdust,ya Defyin the odds Behind closed doors
businessmagazine.The10 Accordingtooneeconomist,oneof Cumuraswamsytressthatthepublic
million damaghereceivedwasthe Tan'scompanieBerjayaIndustrial,feudthateruptedbehteenChief
highest everawardedbyaMalaysianhasalsorecently"appearedtodefy JusticeEusfhinandtheBar
court."TheTanlibelcasestruck the odds" inala~siancourt.On CouncilovererMolekappearso
.peopleasunusualsaysRaphael May 13,~erja~~ndustrl onan havebeenresolv:TheBarCouncil
. .
Pura, "becauseofthespeedwith injunctionintheHighCourtof 'andtheChiefJusteavemetandI
whichthecasewentfromstartto MalaysiathatpreventaM$500 haveheardthatsomepositivestepsare
finish.Suddenly,acasewhichwouldmillion disputeoverderivatkesfromingtakentoimprovethesystem."
typicallytakeaboutfouryearstogebeingrelocatedtotheUnited ButsomeofMalaysia'dsisheartened
court date,washeardwithinsix Kingdom,BerjayaIndustrialwas layyersalrethintheyknowhowit
months.Thetrialitself,which suingCSFirstBostonfornegligent wilfeelifthesystemdnotimprove.
normallywouldtakeabout2 misrepresentationaftertheMalaysiansays:Attheendofthedayweall
monthstogettocourt,wasinand companylostheavilyin an interestustwantthesystemtobefair.You
outinthreedays." rates swapdeal. wantittobeonewhereyome abIeto
AMalaysianlawyeragreesthatthe TheeconomistattheMalaysian udkoutofacaseandsay
speedofthecaseraisedeyebrows. branchofaninternationalbanksays:ightheatedly'Thejudgewasafool!',
"Peopleinstangywonderedwhatwas "Fromwhat Iheardaboutthecase,itwithoutbeingworriedtittcould
sospecialabouttheTan libelcasethatuldhavebeenquitecutanddried.actualbetrue."
thecourtswantedto dealwithitso BerjayabasicaIly.dudut.Tan Heconcludes:"Whatpeopleare
. .
speedilyhesays. latersackedtheguywhosigned reallyworriedaboutisthatoneda,it
: ButotherssayitwasthesizeoftheBerjayaupforit.Locallytheviewwasightbethemwhohastoleavecourt
awardwhichmadethemcurious. thatthat wasabitstrangetoo.He withouthavinganyrealideawhat
"h1510milliondollarsisabigawardseemed tobe toojunior apetoon just happened.Whetheritwasthey
$ foralibelcasebyanycountry's havecommitted thecompanytosuch.whoneverundgrstoodthelaw;
' .standzrds. B, y Malaysian ahugeposition.TheMalaysianjudge,hetheritwasthejudgewho
standaids,itisahelloft," says ChiefJ.udgeMalek,saidthatitwasamisunderstoodthelaw;orwhether
Pura."Nooneinhllalayhadwon Malaysiandealsothedispute shouldomethingterriblehadbeenarranged
anythinglikeit before.Themost beheardby aMalaysiancourts." inadvancebehindcloseddoors."
IN RESPONSE TO IMPORTAN NTEW DEVELO PNMTEERNN ATSCOOMN ALER C IAIGAT W ILLN
PUBLISHSPECIAL BOUND-OUT SUPPLEMENTO SNTHEFOLLOWIN TGOPICS
international Environmental Litigation
US Litigation
Thesesupplementswill bewritten byspqcialistpractitionersandwiIIhighIightkey
legal issuesandrecentregulatorydevelopments. l
ifyou are interested inCO-editingany ofthese supplements, or
would like to order copies, pleasec.ontact: .89-22,-98 16:15 PARAM CUMARASWAMY .- * ID=+683 2749-.4 7.62
PEGUAMBELA DANPEGUAMW
.ADVOCAI;ES'&SOtrQTORS -
v SZ~APA~OT~ Banguni&ob ?@W,i~r,
U.B(flbnU.K.,~nrrirtcr-~r-lhv,znncrTempleNo;4, JblMahkamh PersebWrc,
YoyrRef :
Our Ref : vSP/m9/95
3
Date 18th ~e~embei 1995 . ..K LLNVES~&BBQE ,W
i i 12.93 .-
ON ..,....-....b.....,
DATO? PARAM cWSWM AT ..3.,z.3..M.P -m
Messrs ShookLia & Bgk LC
Advocates & Solicitors %
20thFloor , ang~aan ArabMalaysian
JalanRaja Chdm F
50200Kuala Lurnpur
Malaysia
l Dear Sir;
We act onbehalo ffInsasBerhad and Megapolitan Nominees Sdn Bhd who have
clearlybeen seriously defamed in the issueof the InternationalCqmmercid
Litigation foNovember 1995 published by Euromoney Publications PGC, in the
featre articleheaded "M.alaysi.wjustice on trial". A 'copy of the articleis
enclosed herewith. It isclear that they arebeing accused of comption, in
cdlaborati woth thei leadin gegal Counsel Dato' V K Lingam, inrelation to
litigation brought earlithisyear against&e Ayer Molek Rubber Co. Bhd and its
directorsand secretarie-89-22798 16:16 PARAM CUMARASWAMY
The articleSeems tobp based 20 a significanextentupon allegations madeay you.
You are qxtensively quoted (we are sure quiteacntrately)in thearticle. Despite
the disingenuous comments ...that he has nofished the investigations" anthat
you "...do not want any of thepeople involved to thinkI have yet made up my
mind", youhavemade what are clearlyintended tobe damning comments to the
staffofthe magazine, which manifestly accusD eato' V K Lingam and hisvarious
clientsofcorruption: Inparticular, you have referredtoour clients' litigation as
having brought toprominence the allegations abduttheintegrityof thejudiciary.
i i
You must surel yave known of the rulinof the FideralCourt inthe case ofhsas
Berhad v Ayer Molek Rubber Bhd [l995 23MLJ 833, 844, 846, where it was
clearlystatedthatthere was "no evidence or cause"to warrant&e criticismsofthe
Court of Appeal, and their remarks were described as "totallyunwarranted and
unjustifiedttIn any event, yourallegations arobviouslydefamatory aad, oh your
own admission, based on incomplete investigationand/oT rclmouf.
In the circumstances, ourclienisare left'with nochoice but to ihsue defamation
proceedings against you in respect of your coxnnients and their subsequent
republication inthe International Commercial .Litigati oni.important that all
stepsare taken,for thepurpos oefmitigatingthe continuingdamage being done to
their business and commercial repepuhtionswbich is woildwidd, as quickl and
effec'&ely aspossible.
We thereforewrite to askthat you willagree:
(1) to joinin themaking of aStatement inOpen Court inagreed texrns; r .c .,-A ,,rlifie,d
(2) to y~ur~elfwith the pubiicarion 01 " -.A- --9.- -
retractionin fie ~ern~ti&al Commercial Litigation magazhe,
Goireqpnding pr~finen~ tothat of the offendin::artide, in terms to
be aged byuson behalf of our Clients;
(3) to make suitala?h forthe payment ofdamages tovindicate, so
far as isnow possible, the companies' reputations;
.l
to undertake to rgfr$n ftom publishing any similar libelsin thefiture.
Nawaliy, ovr clieqtswill also expect tobe indrmnifed inrespect of allthelegal
~ostswhich theyhave had to incur. Will you please replytothis leiier as a matter
ofurgency. In the meantime all rights are reserved.
Yours ai'thfull,
Clients69-22798 16:16 PARAM CUMARASWAMY ID=+SB3 2749834 P.Q5
iI
V. swa P S
PEGUAMBELADANPEGUAMCARA
ADVOC42ZS rY:SOLICITORS
VSIVAPARANJOTHl StrNo 307, 3rdFluor,
L!,B. U,~,~arriular-~r-taw,ln& X&mpb Bangurnhke Yew, . '
No.4, /a&@Mnhkmnh Persekutuan,
SBANTINI SELVA RA JAH 50050Xunlkmpur
U.B.fHdtL)K.,C.P.(MAL)
P2easequote ourreference whenreplylirg TeZ : 03-29316293172& 2938157
Far : 03-2931741 ..
Your Ref :
Oar Ref : VSP/110/95
Date 18th December 1995
i i
RECEIVED BY
DATO' PARAM CUMGRASWAM-Y SHOOK LW . &GBOK ( ;liitnn$'')
Messrs Shook Li & Bok
Advocates & Solicitors
20th Floor, Bangunan Arab Malaysian
JalanRajaChulan
50200 Kuala Lumpur
Malaysia
Dear Sir,
We act onbehalf of Dato' V K Lingam, who has clearly beenseriously defamed
I in the issue of the International Commercial Litigation forNovember 1995
published by Eurornoney Publications PLC, in the feature article headed
"Malaysian justiceon trial". A copy of the article is enclosehderewith. He is
mentioned (includi nngone cross-head) in connection with each ofthe cases cited
in support of the proposition that "Malaysia is becoming a place where justice is
now 'up for bid"', whereas it has until now "...been able to portray itself as a
country largely free from corruption". 89-22-98 16:17 PARAM CUMARASWAMY
- .
The article seems to be based toa significantextent upon allegations madb by you.
You are extensively quoted (we are sure quite accurately) in the article, Despite
the disingenuous comments l'..that he has not finishethe investigations" and that
you "...do not want any of the people involved to thinkI have yet made up my
mind", you have made what are clearly intended to be damning comments to the
staff of the magazine which manifestly accuse Dato' V K Lingam and his various
clients ofcorruption (including "a very obvious, perhaps even glaring, example of
judge-choosing"). These are obviously defamatory and, on your own admission,
based on incomplete investigations andlor rumour. Quite apart from the serious
' defamation you have thereby perpetrated, you have clearly disqualifiedyourself,on
grounds of bias, from carrying out further investigations into these matters on any
credible basis.
In any event, Dato' V K Lingam is left with no choice but to issuedefamation
proceedings against you in respect of your defamatory comments and their
subsequent republication in the International Commercial Litigation.
It isimportant thatall necessary steps are taken,in order to mitigate the continuing
damage being done to his reputation which is worldwide and to his livelihood, as
quickly and effectively as possible. We therefore write to ask that you will agree:
(1) to joinin the making of a Statement ill Open Courtin agreed terms;
(2) to associate yourself with the publication of a full andunqualified
I retraction,in the International Commercial Litigation magazine, with
corresponding prominence to that of theoffendi nrgicle, in terms to
l be agreed by us on behalf of Dato' V K Lingam;
l . . - ..
89-22-98 16:17 PARAM CUMARASWAMY ID=f683 2749834 .-
to make suitable proposals for the payment of damages to compensate
(3)
for the outrage to his feelings and to vindicate, so far as is now
possible, his reputation;
to undertake to refrain from the publication of any similar libels in the
i I future.
Naturally, our client will also expect to be indemnified in respect of all the legal
costw shich he has had to incur. Will you please reply to this letter as a matter of
urgency. Meanwhile all rights are reserved.
Yours faithfully,
C.C. Client PEGADVOCATBS DA& SOLJCITORS RA
V SIVAPARANJOT~~~I suiiNO307, 3rFloor,
LL.B,(H/,U.K.,Burrister-Ar-hw,lirner Temple BangunaI-okeYew,
NO,4, ~aturMuhkamnhPersckutuan,
SHAIVTINI SELVA RAJAH S0050Kuu& Lwrnptar
U.B.(Pions)U.K,C.W)P.
Tel :03-2931663, 293172938157
Phasequotow refereticewhet4replying &X : 03-2931742
Your Ref :
Our Ref : VSP/108/95
! Date 18th December 1995
i i h ]RECEIVED BY
SHOOK LW L BOX /$T-)
.J. DAT09 PARAMCUMARASVVAMJT .....~/..~75.......................
Messrs Shook Lin & Bok ON
...... .*...
Advocates & Solicitors AT !.2;$2 a.dw
, 20th Floor, Bangunan ArabNalaysian
JaIan RajaChulan
50200 Kuala Lumpur
Malaysia
Dear Sir,
We act on behalf of Yang Berbahagia Tan Sri Dato' Vincent Tan Chee Yioun,
1 1 Berjaya Industrial Berhad and Berjaya Corporation (Cayman) Limited, 'who have
L..'
clearly been seriously defamed in the issue of the International Commercial
Litigation for November 1995 published by Euro.money Publications PLC, in the
feature articleheaded "Malaysianjustice on trial". A copy of the article is
enclosed herewith. It is clear that they are beingaccused of corruption, together
with their leading Legal Counsel Dato' V K Lingam, in relation to an allegation of
obtaining special favours in litigation in which they have been involved. The article seems to be based to a significant extent upon allegations made by you.
You are extensively quoted (we are sure quite accurately) in the article. Despite
the disingenuous comments "'..that he has not finished the investigations" and that
you "... do not want any of the people involved to think 1 have yet made up my
mind", you have made what are clearly intended tobe damning comments to the
staff of thmagazine, which manifestly accuse Dato' V K Lingam and his various
clients of corruption. In particular, you have chosen to pinpoint Tan SriVincent
Tan's libel case as being the one in relation to which "people first started to
i I
question the integrityof the judiciary". These remarks are obviously defamatory
..._. and, on your own admission, based on uncompleted investigations andlor rumour.
In these circumstances, our clients are left witno choice but to,issue defamation
proceedings against you in respect of your defamatory comments and their
subsequent republ.ication in the International Commerciai Litigation magazine. It
is important that all steps are taken, for the purpose of mitigating the continuing
damage beingdone to their personal and commercial reputations which is
worldwide, as quickly and effectively as possible.
' 1 We therefore write to ask that you 'willagree:
'b'--
(3 tojoin in the making of a Statement in Open Court in agreed ternis;
I (2) to associate yourself with the publication of a full and unqualified
retraction, in the InternationaCommercial Litigation magazine, with
corresponding prominence to that of the offendin aticle, in terms to
be agreed by us on behalf of our clients;Qq-77-9R 1fi:lR PARAM CUMARASWAMY ID=+663 2749834 P.1B
(3) to make suitable proposals for the payment of damages to compensate
".- the outrage t- Tan Sri Dato' Vincent Tan's feelings and to
vindicate, so far as is now possible, his reputation andthat of the two
companies;
to undertake to refrain from the publication of any similar libels in the
(4)
future.
i 1
Our clients will also expect to be indemnified in respect of all the legal costs which
they have hadto incur. Will you please reply to this letter as a matter of urgency.
-a.
Meanwhile all rights are reserved.
Yours faithfully,
' __.I C.C. Clients -. -. . .
.I_l.-- -I..+--._.-.__.U -- L=..%,:'51;.;:= atl'...i,b,,.,..,.8
. .
SHC~OK LIN 8t BOK .
*
M/s giva R Pzr tners
Advocates & Solkcitnrs .S
. . 'S
Julte NO. 30?. 3td F100r, ...I
Ranquvan Lake YsPr .-W,... , .,. .:
No. 4 JaLaa Mahk8.b Psrsokuttlan
5005D Kxlzxla Gumpur
Mar Sirs,
Ee: Your CThree Letters af mcc.,tsbex %S, 3.995
------e---------^-r----6---6-------*-
We are the SO~~C~XOTG for Data' Part= Cumqzaawamy
an9 refer to :tour three Pe.tterfi as abavo, Xt suffices
Eor tka preseat for us +.Q sax that no Leg@$ .Kfa)lility:
could arise on the part: of ~trx client for. the matters
alleged, an8 f urrftax auu client' put~ in isazre .a11 the
said nlatter~ si.Xlsqt34 analor their Xegak consequences as
0~wwN-w-d averred.
h.*T.J+S .
L-H-
MO...,rm*O.m+ of theIn Ccsnventj.ortrd,on wt3aBraFrivi3.r?unsa$Teandio.aEranrlnitfesX1;PnR
~rorm~u,~ro~r
a0Mo.n-n<l(.a the \kj.tea Natibns, adopted h? the GenexaX Assei~3bl y cif
rruyculconuo~w the. [!nit& Sations oh.?~+brtla~y 13, 144.5 anr3 a~cerle-4 r.0
r t ~ ~CCM tvy M:l3.aysia ~'riOctober 28, 3,957. .
roMy?+* cWO.r
1 l L ~ ~ + ? ~ 3. ::I:yfiur cai elite wish t-opsoceed ne*rarthalesa zo
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TUJcnfLC . :::erved in respect rrtf 6veJ:y lege.2, process or.a,ytgt3i.c?ki.nn
--rw,n vcu make In cnnnect:i~n with this natter.
--..a
p4iWl-a-
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SWO*)WQ <Zj 3.p. Qgfics at Geneva
=-I~D Cent.re fcr f-fun~anRights .* OFFiCE DES NATIONS !, :ES,6GE~V~E #
b . UNITED i" 10NS OFFICEATGENWA
CENTRE FOUR LES DROlrS DE CHOIflME
CENTREFOR HUMAN RIGHTS
i -..
i..
The SecretaritftheUnitedNationp-nt itscomplimentsofhtPermanent~issiotiof +.
S . MalaysiatadreUnitEdNationsO&CGatGenevaand hasthehonourto drawitattentiotothe 2
fouo-: ...
On 18Dawber 1995 Dam' R- CSmmmvamy,the S~pciaRap~#,rreurtbe~o~565ick on
~mwn Rights onche Independeo nfJudgesaudLawyers,receivethre e IS fromtfilew fir mf
: Siva Parma sfgualaLumpusindicatintWv incentoinitiatedefamatprocewliqgsgainshimon
behaloftheicrients:Tan SriData'VincenTan Cke Yioun;BexjayliuiustrBerbad;Bezjaya'- - --
l' C~orportaion(~ayaml ~unite *~ :W; ~gapolitm ~~mimes~da BM.; ~XI ~am*Y.K. .
L'hlgam.. .E.-
L . -- :..
. Inthiregard,thSeaetariawouldIik Wedraw theatkntioofrhePamamt Missioato t&.fact -.
thaal lction&ken andwordsspclb,orwritteby Mr. Chmmswam;y inthesm#ersrcfenedm in
tfrelstershavehemdone in hiapi~iQas SpecialRappomur of thCnmmissio n nHuman Righ on
.tl~ Wpemhce ofJudgesandLawyers.SptcialRapportmm oftfiCedicm on Human Rightsare
.*. deemedto beexpertsonmissiooftheU!nitedNationsIn~QX)- witMm 22ofArticleV1of
, ....theCon~entkmw tbrPrivilegesalinmunitiesftheUnitedNationsofwhichMalaysiisa party"
Experts..petf~ming~~~OIIS fotheU;nikdNatiansM1 bea~~ardea d& privilegandinmmih
! '-.asa. n.ecemq fbrtheindepeaderer~rcisofthe'~ =~ 1 s..-"Sectkm22 (BfoftheConvenrion
.-.proridesthat"theshallbeaccorde2xrespecofwonrlspob ar writteandactsdcmeby%km inthe
.courseofthe@ormance of theim'txiiommutrit.romlegalproass ofeverykind" ..*.
. .
AccordingIy,ummt toArricL: Iofthe.Convention thePrivilegesaInmnmitiesofthe
pnitedNations,Dam'ParamChmxasuamy isimmmefromkgalprocessof everykW inpspea of
Cword~ spah orwrittenandacts by himinihec-- ofme perfonnans~ofhismission.
UndrtrSectio34 oftheComrtion on tbePrivilegesalinnudies ofti.UnitedNaiom, the
I
Govermnt ofWaysia has anobligatitobe"in apositioun&r h own lawsm giveffecto ihc
termsofthiConvemka" As m&, tllSecre&ariaouldrtkipectfuyequestthathconpemt
MdaysianauthoritiseadvisedoftfiSpeci dapprteur'pri~itegeand~~ities, andthatby, in
tum,advisethMdlaysianmartsaf C3immuniryhm legaprowess. OFFICE DES NATIONS UNIES A GEN~E lNiED NATIONS OFFICE AT GENEv 8
CXNTRE POUR LE5 DR(IHTS DE L'HDMME CENTRE FOR lIlJMAN RlGMS
I referyou-leaerof26Februa1996mDatoSPacamCmar~~wam ynwtiihyohindicatyourb t toiniriare
&famaxionpmccdsgs .againtr C-- anbehalfofyourdknk MBfNaahnn SearririesSBbd;MfSfCapital
. .Berhad;andDaftV.K.Eh-
( )
XnthiregardIremindyouW my pious let& dated2Decamhx 1995baqtoyourofficeswh'ih I Jllviwd
U you thadIacrios&km md WO& spokemnwrim byMr. CumaJaswam ynthm8tDtrstfd takr yotetwshavebctn
doneinbiscapacitaSpcridRapporteaofthCeommmSioonnILunaaRightonm+XndcpcndtczrrXudges Latvy-m.
Specs Rapptum ofdrcCro-ssion onHuman Rightsam d=cmcdtobe%pars m missioonfttt'nituNatioas.In
acccrdanrv,ridhStct22ofW e tYidtfic Zlronvonnthc PrivilandImmnitieso&c UniteNations,ofwhich
Malaysiainparty, Exparsr;.......m .isioofminbeUnitNationshalltitacmrdsuchprivikgesandimmunities
asW- w~rtctsfyatheiradepahdmtwr~coftheifuactiom,,.," Secim(B)0f.h C~nvcntinrovidesfhtheyshall
beacwrde inrespectowdrrflrpakearwrittenaactsdonebythemintimcuwr.c3tkcp&- Oftheimr'mion
. immunityfromlegalpmccssofmsy kind*
3
Accordingl,lvsurnbcAitklVX of&hCeorcvmtionthtPrivilegesknm~niticsftheUlritNarions,Dato'
Pacam1513msras4rsthSpecialRappoasurntbcTscc d Judw and LW~~T s.immunehrn &galpmuss of
tvcqkindinrwt of,fs spdkenm wrimoaod actdonebybim intbecoursd thptzikumanaofhis&$im
Yourssincerely,
c& Dato'ParamCumaiasvmy
Siva&Partners
Advb~atfLPS:olicimxs
SuiuNo. 3073rdICloat
Emgumas Lukc Yew
NO.4 3h Arl&kunahPwsck~hlan
50050 lh&aLumps
Malaysia UNITED NATIONS NATIONS UNIES
RCPCRCNCC.
The Legal Counsel of the United Nations presents his
compliments to the Permanent Representative of Malaysia to the
United Nations and has the honour to informhim thathe had been
advised by the United Nations Centre for Human Rights in Geneva
that the Malaysianlaw firm of Siva & Partnersof Kuala Lumpur has
indicated theirclientsrintentto initiatedefamationproceedings
against Dator Param Cumaraswamy,the special Rapporteur of the
Lawyers.ion on Human Rights on the Independence of Judges and
Special Rapporteurs of the Commissionon Human Rights are
deemed to be experts on mission of the United Nations; In
accordance with section 22 of Article V1 of the,Conventionon the
Privilegesand Immunitiesof ,theUnitedNations (theconvention)of .
which Malaysiais a 'party, "experts...-performingmissions for the
United Nationsshall be .accordedsuch privilegea snd immunitiesas
are necessaryfor the independentexercise oftheir functions. '..
accorded, in respect of words spoken or written and acts done by
them in the course of the performanceof their mission, immunity
from legal process of everykind."
Accordingly,the special Rapporteuron the Independence of
Judges and Lawyers, isimmune from legalprocess of every kind in
respect of words spoken or written and acts done by him .,n the
course of the performanceof his mission.
l 1 Under section 34 of the Convention,the Governmentof Malaysia
has an obligationto be "in a positionunder its own law to give
effect to the terms of this Con~ention.~~As such, it is for the
competent Malaysian authoritiet so advisethe Malaysian courts of
l the SpecialRapporteurrsimmunityfrom legal process.
authorities couldunbelrequested to advise the Malaysian courts of
the SpecialRapporteurrsimmunityfrom legal process.
The Legal Counselavailshimselfof this opportunityto assure
the PermanentRepresentativeof the ~alaysia 5-0the United Nations
of his highest considera"don. p!
I DOSSIERNO.20
SUMMARYOFTHE\VRITOFSUhlhlOXSAKDSTATEhlEKTOFCLAXhl
In theHighCourtof Malaya
atKualaEumpur
SuitNo.S3-23-68
registered/issued: 12December1996
TheWrit
TwoPlaintiffs claimMR60,000,000for damages, including exemplarydamagefsor
slanderandfor libel, aswell as interestater mum accruablefromthe dateofjudgment
untilthe dateof payment, costs ofthe actionandaninjunctiontorestrainDefendantmfurther
defamingPlaintiffs.
The Statementof Claim
At allmaterialtimes,Defendantwas anAdvocateandSolicitoroftheHighCourtof
Malayaandthe ChiefExecutivePartnerof aMalaysianlaw fir mShookLin& Bok).
l
Defendantspoke and therebypublished defamatorywordsof and concerningthe
Plaintiffs,theirbusiness andtheir conduct.therein.
. .
Kis wordswere calculatedto disparagePlaintiffsin theirbusinessandto cause'them
pecuniary damage.
Thepublicationofthe words, seriouslydamagedPlaintiffs' tradingreputationsand
broughttheminto public scandal,odium and contempt. - ..-
UN1"i'ED NAT1OI';S NATIONS UXICS
CADLADDRESS-ADTCLEO*A?HUHATINZWIORX.
RCCCRCNCC. 3 January 1997
To Whom It May Concern
The United Nations herebynotifies the-competentauthorities
of ~alaysiathat Dato' Param ~umaraswamy,national of Malaysia,is
the SpecialRapporteur on .thI endependenceof Judges and Lawyers of
the United Nations~ommissionon Human Rights. In th'iscapacity,
1 1 Dator Cumaraswamy is entitled to the privileges and immunities
accorded to experts performing missionsfor the United Nations
under Articles V1 and V11 of the conventionon the Privilegesand
Immunitiesof the UnitedNationsto which ~alaysiahas been a party
since 28 October 1957 without any reservation..
In accordance with section 22(b) of the convention Datof
Cumaraswamy,in particular, shallbe accorded by the competent .
authorities"inrespect ofwords spokenor written and acts doneby
[the experts]in the course of the performanceof their mission,
immunitv from leaal Drocess of everv kind. This immunity from
legal process shall continue to be accorded notwithstandingthat
the persons concerned are no longer employed on mission for the
United NationsH (emphasis added).
1t should also be noted that under Section 34 of the
convention a Stateacceding thereto should "be in a position under
its own law to give effect to the terms of this ConventionJl.
The United Nations hereby notifiesthe competent authorities
l .
of Malaysiaby the presentdocument thatit maintainsthe immunity
from legal process of its Special Rapporteur, Datof Param ...
cumaraswamy.
The United Nationsrequests all those whom it may concern to
extend to Dator Param Cumaraswamythe privileges and immunities,
courtesies and facilities to which he is entitled under the
conventionon the Privilegesand Immunitedof the United Nations.
Under-Secretary-General
office of the Legal Counsel UNITED NATIONS NATTnsS UI':IES
POSTAL'AOORCSS-4DR.OSIALUNlYCNATIONH.*.1000
CADL~ ~ ~ n c ~ stct.cenAr)VNATIOHNCWYORK
6 January1997
To Whom 'ItMav Concern
' Re: Kuala~urnpurHighCourt
CivilSuitNo. S3-23-68in the year 1996
1. MBFCapital.Berhad
2. MBFNorthernsecurities Sdn.Bhd..
vs.
pato' Param Cumaraswamy
Inconnection withtheCivilSuitNo. 53-23-68of 1996byMBFCapitalBerhadandMBF
NorthernSecuritiesSdn. Bhd. againstDato' ParamCumaraswamy,the UnitedNationshereby
notifies the competentauthoritiesof Malaysia that Dato' Param Cumaraswamy, nationao l f
Malaysia, isthe SpecialRapporteuron the Independenceof JudgesandLawyersof the United
NationsCommissiononHumanRights. In thiscapacity, Dato'Cumaraswamy isentitledtothe
privilegesandimmunitiesaccordedto expertsperformingmissionsfortheUnitedNationsunder
ArticlesV1andV11of the Conventiononthe PrivilegesandImmunitiesof theUnitedNations
to whichMalaysiahasbeen a party since28 October1957withoutanyreservation.
InaccordancewithSection 22(b) ofthe ConventionDato'Cumaraswamy,in particular,
shallbe accordedby the competentauthorities"inrespectof wordsspokenor writtenandacts
doneby [the experts]in the courseof theperformanceof their mission,immunityfrom legal
process of every kind. This immunity from legal process shall continueto be accorded
notwithstanding thatthe personsconcernedare no longeremployedonmissionfor the United
Nations"(emphasisadded).
It shouldaIsobenotedthatunderSection34of the Convention a Stateaccedingthereto . .
should "be ina position under'itso .wnlawto give effectto the termsofthis Convention".
The ThiitedNationsherebynotifiesthe competentauthoritiesofMalaysiaby thepresent
documentthat it maintains theimmunityfrom legal processof itsSpecialRapporteur, Dato'
Param Cumaraswamy .
TheUnited Nationsrequestsall thosewhomit may concernto extendto Dato'Param
Cumaraswamythe privilegesandimmunities,courtesies and facilities to whichhe is entitled
unclcrthe Conventionon thePrivileges and lmmunitedof the UnitedNations.
&and Deputyto ths
Under-Secretav-Genere!
rl.+:..,~frhz Legi!!C!?JE:~! ENGLISH TRANSLATION
IN THE HIGH COURT OF MALAYAAT KUALA LUMPUR
(CIVIL DIVISION)
SUIT NO. S3 - 23 - 68 OF 1996
Between
1. MBf CAPITAL BERHAI)
MBf NORTHERN SECURITIES SDN BHD Plaintiffs
2.
,.
And
DATO' PARAMCUMARASWAMY Defendant
AFFIDAVIT
I, DATO' PARAM CUMARASWAMY (K.P No. 4475178) of full
age and a Malaysian citizen of care of Tingkat 20, Bangunan
Arab-Malaysia, 55 Jalan ~aja Chulan, 50200 Kuala Lumpur, do
solemnly make oath and affirm as follows:-
I am the Defendant abovenamed.
1.
2. Save where otherwise stated to the contrary, the
facts deposed herein are within my personal knowledge.
I crave leave of this Honourable Court to refer to
the Writ of Summons dated 12.12.1996 and filed herein. On
6.1.1997, my solicitors Messrs Shook Lin & Bok accepted
service of the Writ on my behalf on a ltwithout prejudice"
basis.
I veri.1~ believe that I have to enter an appearance
the Writ within eight days service the Writ, inclusive of the date of service. I wish to state that I
intend to enter a Conditional Appearance to the said Writ and
thereafter apply to stay proceedings or to set aside the Writ.
Accordingly, I now make the instant application for leave of
this Honourable Court for the purposes of entering Conditional
,,,
Appearance to the Plaintiffs' purported action.
5. I wish to state that the Plaintif fsf action against
me for purported defamation arises out of an article which
appeared in the November 1995 issue of the International
Commercial Litigation Magazine under the caption lf~alaykian
Justice on Trial". I
I am now shown a copy of the said article which is
annexed hereto and marked as Exhibit "Aft.
6. I wish to state that the statements which were
attributed to me and as reproduced in the said article, were
made in my capacity' as the United Nations Special Rapporteur
on the Independence of Judges and Lawyers and in the course of
my mission which required me to. carry out an examination or
inquiry into the independence of the Malaysian Judiciary in
respect ofthe events relating to important aspects of certain
controversial Court cases. It was expressly.stated in the
said article that I was investigating such cases. 7. The said Writ makes no reference whatsoever to the
fact that the statements which were attributed to me were made
in my capacity as United Nations Special Rapporteur on the
Independence of Judges and Lawyers. I verily believe that it
I.
is not open to the Plaintiffs to deliberately avoid making any
reference to my official capacity which is so clearly
mentioned in the very article on which they base their claims.
I verily believe that the Plaintiffs have to take the article
as a whole.
8. In this regard, I wish to state that after the
publication of the said artidle, I received a letter dated
26.2.1996 from Messrs V. Siva & Partners on behalf of the
Plaintiffs. A copy of the said letter is now shown to me and
annexed hereto and marked as Exhibit "Bn.
9. On my instructions, my Solicitors Messrs Shook Lin &
Bok, replied by letter dated 1.3.1996 and duly notified the
Plaintiffs1solicitors that since the statements attributed to
me were made in my official capacity as United Nations Special
Rapporteur on the Independence of Judges and Lawyers and in
the course of my mission in carrying out an investigation, I
was therefore immune from legal process of every kind. A copy
of the letter dated 1.3.1996 from Messrs Shook Lin & Bok to
the Plaintiffs solicitors is now shown to me and annexed
hereto and marked as ~xhibit "CN.10. Further, by letter dated 1.3.1996, the Centre for
Human Rights of the United Nations Office at Geneva had
written to the Plaintiffs' solicitors and had asserted that by
virtue of Section 22(b) of the Convention on the Privileges
and Immunities of the United Nations adopted by the General
Assembly of the United Nations on 18.2.1946 and acceded to by
Malaysia on 28.10.1957, I was immune from legal process of
every kind in respect of words spoken or written and acts
done in the course of performing my mission. A copy of the
said letter dated 1.3.1996 from the United Nations office is.
now shown to me and annexed hereto and marked as Exhibit "Du.
' h
11. Further, I wish to state that upon being served wfth
the said Writ, I duly notified the United Nations office in
New York and in response thereto, I received a letter dated
6.1.1997 from the Under-Secretary General Office of the Legal
Counsel of the United Nationss which confirms that the United
Nations maintains my immunity from legal process of every kind
and that I am to be accorded immunity horn any legal process
in respect of the statements attributed to me in the article,
which are now the subject matter of the Plaintiffs1 purported
action herein. A copy of the said letter from the United
Nations office is now shown to me and annexed hereto and
marked as ~xhibit "Ew.
12. Accordingly, I .am advised in law by my Solicitors
and verily believe that the statements attributed to me andwhich were.publishedin the said article arenot actionablein
law by the plaintiffsor any other party, as there was at all
material times and still is a complete legalimmunitywhich I
am entitled to under Section 22(b) of the Convention on the
Privileges and Immunities of the United Nations. In the
circumstances, the present Affidavit is explicitly made
without prejudice to my privileges and immunities as United
Nations Special Rapporteur on the Independence of Judges and
Lawyers from legal process of every kind in respect of words
spoken or written or acts done by me in the course of the
performanceof my mission.
13. In all the circumstances as aforestated, I verily
believe that there is no legal basis forthe issuance of the
said Writ and the Writ ought to be set aside or further
proceedings be stayed. I respectfully pray for an order
granting me leave to enter Conditional Appearance so asto
enable me to thereafter apply to set aside the Writ.
AFFIRMED at Kuala Lumpur by the
1
said DATOI PARAM CUMARASWAMYthis
1:.
Before me
.No. 1V147
Commissioner for
Kuala Lump-r
C,r;y,>;For Oaths
b;cr . inskat Satu
. wismaMLA.Jalan Raja chuian
5020KualLUmPUrThis Affidavit is filed by Messrs Shook Lin & Bok, solicitors
for the Defendant abovenamed and whose address for service is
at 20th Floor, Arab-Malaysian Building, 55, Jalan Raja Chulan,
50200 Kuala Lumpur. DALAM MAHRAMAH TINGGI MALAYAD1 KUALA LUMPUR
(BAHAGIAN SIVIL)
GUAMANNO. S3 - 23 -.68 DALAM TmUN 1996
Di Antara
1. MBf CAPITAL BERHAD
2. MBf NORTHERN SECURITIES SDN BHD Plaintif -
Plaintif
Dan
DATO' PARAM CUMARASWAMY Defendan
D1 HADAPAN PENOLONG KANAN PENDAFTAR
PUAN REIHANA BT. ABD. RAZAK
PADA 10 HARIBULAN JANUARI, 1997 DALAMKAMAR
PERINTAH
ATAS PERMOHONAN Defendan yang dinamakan di atas
dalam tindakan ini DAN SETELAH MEMBACA Ex-Parte Saman Dalam
Kamar bertarikh 9 haribulan Januari, 1996 dan Afidavit Dato'
Param Cumaraswamy yang diikrarkan pada 9 haribulan Januari,
1996 dan difailkan di sini DAN SETELAH MENDENGAR Encik S.
Nantha Balan peguam bagi pihak Defendan ADALAH DIPERINTAHKAN
bahawa Defendan diberi kebenaran untuk memasukkan Kehadiran
Bersyarat terhadap tuntutan Plaintif-Plaintif di sini.
Bertarikh pada 10 haribulan Januari, 1997.Perintah ini adalah difailkan.oleh Tetuan Shook Lin & Bcik,
Peguamcara bagi pihak Defendan yang dinamakan di atas dan
alamat untuk penyampaian ke atasnya adalah. Tingkat 20,
Bangunan ~rab-Malaysian, 55, Jalan Raja Chulan, 50200 Kuala
Lumpur . ENGLISH 7n"AfrlSLATlON
IN THE HIGH COURT OF MALAYAAT KUALA LUMPUR
(CIVIL DIVISION)
SUIT NO. S3 - 23 - 68 OF 1996
Between
1. MBf CAPITAL BERHAD
2. MB~ NORTHERN SECURITIES SDN BHD Plaintiffs
And
Defendant
BEFORE THE SENIOR ASSISTANT REGISTRAR
PUAN REIHANA BT. ABD. RAZAK
DATED lOTH DAY OF JANUARY, 1997 IN CHAMBERS
ORDER
UPON THE APPLICATION of the Defendant abovenamed in
this action AND UPON READING Ex-Parte Summons In Chambers
dated 9th day of January, 1996 and the Affidavit of Datol
Param Cumaraswamy affirmed on the 9th day of January, 1996 and
filed herein AND UPON HEARING Mr. S. Nantha Balan of Counsel
for the Defendant IT IS ORDERED that the Defendant be given
leave to enter Conditional Appearance in respect of the
Plaintiffs' action herein.
Dated this 10th day of January, 1997.
Senior Assistant Registrar,
High Court, Kuala Lumpur.This Order is filed by Messrs. Shook Lin & Bok, solicitors for
the Defendant hereinand whose address for service is at 20th
Floor, Arab-MalaysianBuilding, ' 55, Jalan Raja Chulan, 50200
Kuala Lwnpur. ENGLISTRANSLATION
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR g5
(CIVILDIVISION)
SUIT NO. S3- 23 - 68 OF 1996
Between
1. MBf CAPITU BERHAD
2. MBf NORTHERN SECURITIESSDNBHD Plaintiffs
And
Defendant
MEMORANDUM OF CONDITIONAL APPEARANCE
Enter Conditional Appearancefor the Defendant
abovenamed without prejudice to an applicationto set aside
the Writ.
Dated this10th day of January, 1997
Solicitorsfor the~ef%ndant
This Memorandum Of Conditional Appearanceis filed by Messrs
Shook Lin & Bok, solicitors forthe Defendant abovenamed and
whose address for service is at 20th Floor, Arab-Malaysian
Building, 55, Jalan Raja Chulan,50200 Kuala Lumpur.This Appearance is to stand as unconditional unless
the Defendant applies within 14 days to set aside
the Writ, and obtains an Order to that effect.
Senior Assistant Registrar,
High Court, Kuala Lumpur. EK 10197
The Permanent Representative of Malaysita o the UnitedNationspresents his
complimentsto the Legal Counselof the United at io nn d has thehonourto refer to the
l )
latter'sNote dated29 March 1996in regard to the matterof intended defamation proceedings
against Dato' Param Cumaraswarny,the SpecialRapporteurof the Commissionon Human
Rightson theIndependenceofJudgesand Lawyers.
The Permanent Representativ.e ofMalaysiawishesto informtheLegal Counsel
of th.:.ited .....tionsthatt.e:.. :..:: .... e...o....aysi....hl.illed itsobligatio............on
...: ..;..<-.. v ;:?'...f;:. :-;:..,: ,., ... .....
34of the' .... ...,,.n.,n ..-.......,........A.'.:........;....Sr.--,....>.....te....t$ni ...nthat..herehas: '
.
' alreadybeen'en .a.cted ..g...liti6*to $ie effe ..it.t..thet6hs-of the~~xivehtio*l"I'h .le.gislation
. . in questionis the ''~i~ldmati~"krivile~& (Unit' N& ationsand ~nternational Court of lustice)'.
' ' Order194gWa , copyof whichis'attachedherewith. Inp&cular, paragraph'12@) of the Order
is relevant. The Malaysian~viden&Act 1950, therelevantportionof whichis also attached
l
herewith,obligatescourt tstakejudicial noticeof all lawsor regulationshavihgthe force of
lawin Malaysia,whichwouldthereforeincludetheDiplomaticPrivileges(UnitedNationsand
~nternational Courtof Justice) Order1949.
. .
. .
ThePermanentRepresentativeof Malaysiato theUnitedNationsavailshimself
I of this opportunityto assure the Legal Counsel of the United Nations of his highest
consideration.
New York
14 January1997. UNITED NATIONS @$ NATIONS UNIES
%&L
r0SADORESS-ADPOSTIUNINATION.(W17
CADAOORE52-ADTCLCGRAPUNATtNPWYORU
REFERCNCK:
The Legal Counsel ofthe United Nations presentshis
complimentsto the Permanent~epresentativeof Malaysiaand
has the honour to refer to the latter'sNote Verbaledated l4
January 1997concerningthe defamationproceedings whichhave
been initiatedagainstthe United NationsSpecialRapporteur
of the Commission onHuman Rights on the Independenceof
Judges and Lawyersin the Civil Divisionof theHighCourtof
addresseda Note VerbaledatedThe L29Marchun1996 to thePermanenty
Representativeof Malaysia informingthe latter that the
Malaysian law firm of Siva & Partners of Xuala Lumpur had
indicated their clientsf intent to initiate defamation
proceedings againstthe Special Rapporteur. Theafore-
mentioned clientsincluded MBF Northern SecuritiesSdn Bhd
and MBf CapitalBerhad,the plaintiffson whose behalf Siva
& Partners filed acomplaint against theSpecialRapporteur
in the Civil Divisionof the High Court of Malayaat Kuala
Lumpur on 12 December 1996.
The Legal Counselreaffirmsthat SpecialRapporteurs of
the Commissionon Human Rights are deemed to be experts on
missionof the UnitedNations. In accordancewithSection 22
of Article V1 of the ,Conventionon the Privileges and
Immunitiesof the United Nations (the Convention)of which
Malaysia is a party since 28 October 1957 without
reservation,tlexperts ... performing missions forthe United
Nations shallbe accorded such privilegesand immunitiesas
are necessaryforthe independentexerciseof theirfunctions
...l1Section 22(b) of the Convention providesthat "they
shall be accorded,in respect of words spokenor writtenand
acts done by them in the course of the performance of their
mission, immunityfrom legal .processof everykind.." ' 'The
latter has been confirmed by the InternationalCourt of
Justice in its Advisory Opinion of 15 December 1989 on the
Applicabilityof ArticleVI, section 22 of the Conventionon
the Privilegesand Immunitiesof the United Nations. Under
section 34 of the convention,the Governmentof ~alaysiahas
an obligationto be "in a positionunder its own law to give
effect to the terms of this convention."
Please be further advised that pursuantto Malaysian
law, in particular paragraph ' 12(b) of the Diplomatic
Privileges (United Nations and International Court of
Justice) Order or" 1349, "except in so ,far as in any .
particularcase any privilege or immunity is waived by the
Secretary-General of ths United Nations,personsemployedon
missions on behalf of tne UnitedNationsshallenjoyimmunityI from legal processof every kind in respect of words spoken
or writtenand all acts done by them in the exerciseof these
functions." More importantly,in accordancewith paragraph
shalltake judiciallnoticeofvi"all laws or regulations having
the force of law now or heretofore in force or hereafterto
be in forcein Malaysiaor any part thereof .lParagraph 56 of
the Act providesthat Itnofact of which the courtwill take
judicialnoticeneed be proved."
To the extentthat the privileges and immunitiesenjoyed
by the Special Rapporteur on the Independenceof Judges and
Lawyers havenot beenwaived by.the Secretary-General of the
United Nations in this particular case, the Special ,
respectof words spoken or writ.tenocand acts done by him in
. the course of the,performanceof his mission. Pursuant to
section 34 of the Convention, the Government of Malaysia
thereforehas a legalobligationto give effectto the terms
of section 22(b) of the Conventionand paragraph12(b)of the
. MalaysianDiplomaticPrivilegesOrder of 1949 and to,advise
the'Malaysian courts ofthe Special Rapporteurrsimmunity
from.lega1process inthis case. Furthermore, the competent
Malaysiancourthas an obligation,under paragraphs 56 and 57
of the MalaysianEvidence Act of 1950, to take judicial
theretoneed not be proved.rteurfsimmunitywhich pursuant
The United Nations attache'sgreat importanceto this
matter as it affects not only the status of the Special
Rapporteuron the Independenceof JudgesandLawyersbut also
the statusof all SpecialRapporteursof the UnitedNations
system.
The Legal Counsel therefore' requeststhe competent
Malaysian authoritie so promptly advise the Malaysiancourts
of the Special Rapporteurfsimmunityfrom legalprocess.
The LegalCounselavails himself of thisopportunityto
assurethe Permanent Representativeof Malaysia to the united ....
Nations of his highest considerat'on.
/h%
15 January 1997 Note to The File
On Wednesday, 5 March 199$t,Mr. ~acklinmet with the Acting
Permanent Representative of Malaysia to discussthe information
conveyed by Mr. Cumaraswamy in his facsimile of 5 March 1997
concerning thecertificate to be presected by the Minister for
Affairs of Malaysia to the competent courtassertingthe .Special
Rapporteur'simmunityfrom legal process.
Mr. ~acklininformedthe Acting PermanentRepresentative that
in a letter to the President of the Law Society of England and
Wales, the Attorney General of ~alaysia had indicatedthat the
Minister for Foreign Affairs would certify that the Special
Rapporteur "shallbe accorded immunity from legal processof every
of thenpergormanceof his missionas clearlvstatedin his mandate.e
Whetherthe words were s~oken in linewith the performanceof his
mission was for him to Drove in court." (emphasisadded)
Mr. Zacklin advisedthe Permanent Representativethat the
latter part of the certificate clearly violates the Special
Rapporteur's immunity from legal process and the Secretary-
General's exclusive authority to determinethe applicability 'and
scope of such immunity in contraventionof the Governmentof
Malaysia'sobligationsunder the convention on the Privilegesand
Immunitiesof the United Nations as well as the provisionsof the
Malaysian Evidence Act of 1950 pursuant to which the court must
Rapporteur'simmunityand which thereforeneed notbe proved.cial
Mr. Zacklin notifiedthe PermanentRepresentativethat, if
such languageis indeed currently part of the Ministerfor Foreign
Affairs' certificate,the United Nationsformally requests that
suchcertificatebe immediatelywithdrawnand revisedin accordance
with the Governmentof Malaysia'sinternational legal obligations.
Mr. Zacklin concludedthe meetingby stating thatthe Government's
failureto assertthe Special Rapporteur'simmunityaccuratelyand
complete'lwyould give rise to a dispute between the United Nations
and the Government of Malaysia. In the light of the upcoming
session of the Commissionon Human Rights,he was confidentthat
the Governmentof Malaysia wouldseek to avoid suchan outcome.
The PermanentRepresentative assuredMr. Zacklinthathe would
immediately conveythe foregoing to the Ministry for Foreign
Affairs.
5 March 1997 7 March 1997
To Whom It Mav Concern
In connectionwith the Civil Suit No.
of 1996 by MBF Capital Berhadand MBF Northern
SecuritiesSdn. Bhd. against Dator Param Cumaraswamy.
the ~ecretar~~~eneral of the United Nations hereby
notifies the competentauthoritiesof Malaysiathat
--
Special Rapporteuron the Independenceof Judges and
Lawyers of the United Nations Commissionon Human
Rights. In this capacity,Datol Cumaraswamyis
entitled tothe privilegesand immunities accorded to
expertsperformingmissions for the UnitedNations
under Articles V1 and V11 of the Conventionon thC
Privilegesand Immunitiesof the United Nationsto
which Malaysiahas been a party since 28 October 1957
without any reservation. . .
'
In accordancewith section 22 of ArticleV1 of
the Convention, "experts...performingmissionsfor
the United Nations shall be accorded suchprivileges
and immunitiesas are necessary for theindependent
exerciseof their functions. ..It. Section 22 (b)of
the Conventionfurther provides that Itthey shall be
accorde6,in respect of words spokenor urritien a~i
acts dons by them in the course of the psrZormanceoftheir mission, immunity from legalprocessof every
kindn. As such, the SpecialRapporteuron the
Independenceof Judges and Lawyers,is immune from
legal processof every kind in respectof words
spoken or writtenand acts done by him in the course
of the performanceof his mission.
The Secretary-General has determinedthat the
words which constitutethe basis of plaintiffsr
complaintin this case were spokenby the special
Rapporteurin the course of his mission. The
Secretary-General therefore maintainsthat
Dato' Param Cumaraswarnyis immune from legalprocess
with respectthereto.
Under.Section 34 of the Convention,the
Governmentof Malaysiahas a legalobligationto Itbe
in a positionunder its own law to give effect tothe
terms of this Conventionu. The Secretary-General of
the United Nations thereforerequests thecompeteat
Malaysian authorities to extend to Dator Param
Cumaraswamythe privilegesand immunities, courtesies
and facilitiesto which he is entitled under the .:
Conventionon the Privilegesand Immunitiesof the
United Nations. IN THE BIGH COUXT OF MALAYA AT KliALA 'LUMPOR'
(CIVXL DIVISION)
'
SUIT NO. S3 - 23 -- 68 OF l996
Between .....
..... .... . -.
.... : MBf CAPITAL BERRAD - ........ - .. . ...............
2. MBf NOR2HERN SECURITIES SDN BKD ~la. .iif s '
8 ,
I, DATO PARAt4 CUE4ARASWPBY fR.P No.
age and a Mslaysian citizen of care of Tingkat 20, 'Banguaan
Arab-Malaysia, 55 Jalan Raja Chulan, 50200 Kuala Lmpur, do
hereby solemnly affirm and state as follows:-
united Rapporteur on
the Wations Special
Independence a£ judges and Lawyers.
Save 'where the contrary,
facts deposed herein are witbin my personal knowledge 5n my
aforesdd capacity. : ' , :l,:,.i':"
3. L crave leave to refer to, repeat and adbpt all the
avermentsin my previous Aff idwits affirmed0n 20..1.1999 and
..
18..;1.97 filed a..ereln. .... 2 . .-. -.
.. , . . . . S .......- ,..., ........ .. .W-.. . *-.
0 4. X refer in parkleular to paragraphs 7, .10, 3.1, 12,
13 and i4-of my Affidavit affinnad on 20.1.2997 aid paragraph
9 of my Affidavit af f imed on 18.2- 1997. Tn this.regesd I
.
have today received a copy of a certificate from the Secretary
General a2 the United Wations dated 7.3.1997 duly confriming
in writing that the words which constitute the basis of
Plaintiff sf conplaint in this case were spoken by ine in the
course of my mission and therefore he mainta5.n~ my i~~munity
from legal process with respect thereto. I am now shown a
copy of the Letter dated 7 -3.1997 from the Secretzry General
of the United 'Nations which is annexed hereto and marked as
exhibit "Au.
5. Further, I: Informed by the office 05 the Legal
Counsel of the United Hations and vesily b3lieve that the
original .of the letter dated 7-3-1997 from the Secretary
General of the United Nations as stated above,will 'shortly be
...
or has been handed over by the Legal Counsel of the Wnited
Nations to the Acting Pernanent Representatiive of Malaysia t'o
the United Nations. X .respectfully pray for an order in terms of this
Application-
.AF.X...-. at Kuala LwUr by fhe )
. said:.BAT' t-p-. :CmSWI\IqY this: : . . ...
'1
1 EAR 1997 19s~ 1 ,
( \
..
Before me
Commis
Kuala
This Further ~ffidavit is filed by Bessrs Shook Lin & Bok,
solicitors for the Defendant abovenamed and whose address for
service is at 20th Floor, Arab-MalaysianBYilding, 55, Jalan
Raja Chulan, 50200 Kuala Lumpur- In- Cai~=~~I~3 ~lth C:'.,C'ivib Suit 83. S3-23-Ez
. .
cf 1996 by BZGB Cz?itzL Eerbzd 2nd >BE' 39or;:lern
- ~=earities S&. BM. ~c+inst Dx~o' Pzrae L.s~r+rr?swaqy,
+he srcre;z-sy-~~er+l OE tke EniiceZ Pu'-;i$zs k­
zotiLies the csapetenrti acthoz?ities of Xakysiz thst
n~td Parax O1=b~r+swamy. 1reCiori8l. of W~laysia, is c&
.special ~~~~orteurc:, tke Indeoecdence of Jd=es =rid
L~'??:y~rcf Eta :-~%te~ get 5.012-Co~aisslor ,z +GZZ
Rights xr t3.i~ c~?-C~C~, DSMt CI;?~==&~WE~~ is
entitle4 ta tbr pri~i~~~es zne imunicLes accorde8 to
ewert. perf~r?;.~g missio~s for the United Ratioas
cad.derhrticles Vj ZQ~ Viz of the Co~ven2iaii on ihe
2riuileges -5 EzmunLties of the UaiteB Xatioas to
wl~ic:?~tlry-iz brs hrsri c party since 28 Octobu 1557
xr;&cor&ace with s~t=tio~i 22 of &%icle VI cZ
the ~~~ve~t~o~, Yexperi~. .. p=rf03ZP.i?lgG~~SS~Q~S ';or ..
-,bev;litei ~~~io:~ shall be accorded E;$AC~pxi*fblege_c
5rnrnunLties in axe ilecesszry for thz irrSepe;:&w
cxercj.go 02 tkair fll~cti2~is. ..l*. Sect502 22 (bj 65
the c~nvglliic~ Cvrtbsr previ&es tbct "they shall ??s
cccor~~c, &X respect d2 words s2oliefior' ~rrittcr~ec+
acts done by the= h tk~ ccJl;ss oof 'ch~ pcrfor%z~c~'~% missi~n, irmmity trcn legal grccess cf +v=r_v
gi~da. 1s such, tke S~ecial Rssartevr c-. thc
~~&ep~~~e~ce Jc~~.s~s ~35 LEV~CZS, i;r~;le frtn
procs~s cf every *L?& 52 respect oE =m=&
.
...p&ea. or writt* and. rces Cane by in the C+r62
- . : . --br .the gkrf ormace .of ,452 mLssior.. .:.. .........,-..,, -.
C. sec=~=ary-GeneraS hzs dererm;ne.C th;.; ths
wares wkick cc:.s;itcte tkc besis of pZ-l.siif2sf
c&apl=int in ttis case were spoken by t3e Specizl .
mpgortecr ir tk= course or his missloa. Tk
secrctary-C+ner~Lthereforeminraias tbat-
Data' peran C~ZIZ~SWIITJIY f5 ~rn~h~ fro% leezl process .'
wit5 raspect k"r,ereto-
uz~-,r ss ,,-'cn 35 cf tha, Coaventioix, t'=r= ''
~overn~~z~ cf XiLay~i+ ks +. legd obligatia? 'to "'m
'in a positk~r, czder its ein- to ~5.ve cziect to
terms of tb5.s Caventioilv. The Socretery-~ea=x;l of
tk= cr.it& 2J~:ior.s eIier=Core reqzesls the. ccsc2=tml
~alzy+lcm- ~l.&kosZties to exceilci to Da50' Bezsq
mi?:2r=s~zmy tks prix?iLez=s and inmities, courtesies.
~33 fccj.litie= to whick ke is entitled unbr the
Converitio~ .or. ths PrlvF2.z~~~ zr-d Xrns~nitiee of ti-S
United Watizns . FROM: MRLUYSlPbi CONSULGNEW YORK
p- SW--- FHONE 1.1:.212 8672E163
1,DATUg BIL NJ..ASMADBADAW Mi>rri.oftoreignAffairs,
XalaysiabyY orOI gow~ grantedto mc understcfio1(1)of tktIntanatid
Orpniations(Privilsgds Itmmdies) Act 1992(Act 485)hcfebycertithatData'
3mzn Cdmraswarcprwas appoW bytheUailcsd.Nzdm in1994fora guiodofthree
yeasasSpcdalR8ppow cm the oJudgesandLnwyets,W- mandate is
asfollows: 8 I
b) .toiduktiQ andrecord inbepea- of the
,l=* W%'= laud prwgms s#cZ&wedin
-g m& edmdng thdr iadepsnm and moloe concrete
rcco-aua glrtwhnhl
--*m
..
2. Uod~ttlhc~an,~~~~Pnd~oftheD~Natiaa~194ti
andMdn tbe~~c Prhikgrts(rr& Nati01gndIra#oatW Capn ofSslke]Order
1949Data'Panm Cbmammmyshall coy thpr%lew ad hhmmi'db asercncussw
forthe' cfxexchofhisfwxiosisEt shalbeaccordedimmurritfrom Iegal
procc6s~kird~in~of~rdsspokcLIorwriOmaPd~~byhiminrbc
i\ c5me of tbpterfomaxw ofhimMoa . .
L
.Ilrw 12th&y ofMatch 1997 UNITED UNIES
NATIONS NATIONS
POSTADDRESS-AOPOSTAUNlTNATION.lWl7
CAOLADDRESS-ADTELCCRAPUNATINIWIORU
REFERENCL.
Dear Mr. Ambassador,
I have the honour to refer to Civil Suit No. S3-23-68 of
1996 by MBF CapitalBarhad and MBF Northern Securities Sdn. Bhd.
i i Secretary-Generalsigned a note, addressedyou know"To Whom It May 1997 the
ConcernIt in respect to this proceeding (copy attached) in which
he determinedthat the words whichconstitutethe basis of
plaintiff's complaint in this case were spoken byMr. Cumaraswamy
in his capacityas SpecialRapporteuron the Independenceof
Judges and Lawyers of the United Nations Commission on Human
Rights, and were spoken in the course of his missionfor the
Commission.
In addition,as you know, the Ministerof ForeignAffairs of
your Governmenton 12 March 1997 signed a "CertificateUnder
Section 7(1)11 of the International~rganizations(Privilegesand
Immunities ) Act 1992 (Act 485), in whichhe certifiedthat
Mr. Cumaraswamydoes enjoy privilegesand immunities asare
necessary forthe independentexerciseof his functions, and
therefore is to be accorded immunity'fromlegal processof any
kind but Itonlyin respect of word spoken or written andacts done
by him in the courseof the performanceof his mission".
1 ) The United Nations has justbeen informed thatthe court in
which the above-mentionedproceedingsare beingconducted is in
the course of hearing arguments on the questionwhether, in spite
of the conclusivecertificationof the Secretary-General, Mr.
Cumaraswamywas indeed acting withinthe course of his off3.cial
functions. It is the position of theUnitedNations that if the
Secretary-General'sdecision on this point is not considered as
H.E. Mr. Ismail.Razali
Permanent Representativeof Malaysia
to the United Nations
New York .. . ,.
conclusive,this may constlrute 2 Uliie~~iil:i ,ris_:.j --- --. 1.
interpretationor applicationof the Conventionon the Privileges:
and Immunitiesof the United Nations,to which Malaysiais a ..,
party without any reservation. Accordingto Section 30 of that
Convention,any such differencesthat arisebetweenthe United
Nations on the one hand and a Member State on the other, are to
be submittedto the InternationalCourt of Justicefor an
advisory opinion.rather than being litigated inany national
court.
The United Nations.therefore,considersthat theGovernment
need make arrangementsto ensure that no court of Malaysiawould
undertake to considerwhether or not the Secretary-General's
determinationig c~ncl~~iveas to the official functions of an
expert on mission.
Under-Secre UNITED NATIONS %&&L NATIONS UNIES
POSTAOORSSS-AOPOSTUNITNATIN.Y(W17
CABAODRCSS-AOTELCGRAVNATINCWYOIK
REFERENCL.
The Legal Counsel of the United Nations presentshis
compliments to the Alternate Permanent Representativeof
Malaysia and has the honour to refer to the ongoing
proceedings in connection with the defamation complaint
broughtagainstthe United Nations Special Rapporteuron the
Independenceof Judges and Lawyers in the Malaysiancivil
courts. Notwithstandint ghe presentationto thecourtof the
"Certificate Under Section 7(1)" of the International
Organizations (Privileges and Immunities)Act 1992 (Act 485)
signedby the Ministerfor ForeignAffairsof Malaysiaon 12
March 1997and the Secretary-General's note of 7 March 1997,
the courthas held extensive hearings, now adjourned until 19
May to hear further plaintiff's arguments, to examine the
Special Rapporteurfsimmunity from legal process. It is
therefore clear that the Minister's certificate hasnot
adequatelyasserted, orthat the courthas not taken adequate
notice of, the special Rapporteur's immunity from legal
process in respectof words or acts relatedto his official
mission or the Secretary-General's exclusiveauthorityto
determine whether particularwords or actsdidrelateto such
a mission.
In this connection and furtherto his letterof 14 April
1997,the LegalCounselhas the honourto referto the latter
part of the Ministerfor ForeignAffairsfCertificate which
provides that the Special Rapporteur llshall be accorded
immunityfrom legalprocess of everykind onlv in respe~tof
words spokenor written andacts doneby him in the courseof
the performanceof his missionv (emphasisadded),which nay
have misled the court into believingthat it is its task to
determine whether the words here in questionwere spokenby
the SpecialRapporteurin his officialcapacity. The Legal
Counsel therefore requests the competent ~alaysian
authorities to amend or supplement the afore-mentioned
Certificateto certifythat, by his note of 7 March1997,the
Secretary-General has exercisedhis exclusiveauthorityand
determined that the words which constitute the basis.of
plaintifff.c somplaint inCivil Suit S3-23-68were spokenby
the Special Rapporteurin the course of the performanceof
his mission and that the Special Rapporteur is therefore
immune from legal processwith respectthereto.
The LegalCounselavailshimselfof this opportunityto
assurethe AlternatePermanentRepresentative of Malaysiato
the United Nations of his highest consideration. UNITED NAT~NS OFFICE AT GENEVA
HAUT COMMlSSAlRE AUX DROlTSDE L'HOMME HIGH COMMISSIONER FOR HUtvlAN RIGHTS
CENTRE POURLES DROlTSDE L'HOMLIE CENTREFOHHUMAN RIGHTS
Telegrammes.UNATIONS.GENEVE ,,-.... .
Telex: 41 29 62 ,.
TBlkphone' (41.22)9173356 ..,I.
Geneva, 30 May 1997
Your Excellency,
i ) The special --appo -.-.-.ur -.--r.gresentati andesc/aeippeesontsof.workinggroups of the
Special Proceduresand the Advisory Services ~ro~rainineof theUnited NationsCollllnissionon
Human Rights, meetingin Genevafrom 21 to 23 May 1997,are alarnled by the litioationg~~rsued
--..------------. --. -- W . . . -. - P.-- ---
agai.st -..-Paran1Cu----S"arn----ite---.W-------ial Rapporte-----W---Independence of
.-----.----p-awyers. Ourunderstandingis thata civil actionhascotn~nencedagainst the Special
Rapporteurin the KualaLumpurHigh Courtby twopubliccorporations. Thealleged defamation
refers to an article that appearedin a London-based. legal magazinein which Mr. Cumaraswarny
was interviewedin his capacityas the UnitedNations Special Rapporteuron the Independenceof
.Judges and Lawyers.
AsExperts performingmissionsfor the UnitedNations we are immunefrom legal
-.-.,-..,.... -.. ..........-.-....------....-.--L..---- .-.-- ,---.,. .--.
pro-ess-under the 1946 Conventionon thePrivilegesand I~nn~unitieo sf the United Natioils, to
which Malaysiais alsoa party. This ili~~nuniti ys accorded"inrespectof wordsspoken or written
and acts donein the courseof the performance of their mission.. .". Our imnlunityhas been
confirn~edby theInternationalCourt of Justice (ICJ) inter nliain the 1989Mazillicase. In that
case, the ICJ also determinedthat expertsenjoysuchprivilegesand immunitiesthroughouttheir
l l
mandate, whethertheyare travelingor not.
H. E. Mr. Kofi Annan
Secretary-General
United Nations Organization
UN Headquarters
New York, N.Y.
cc: H.E. Mr. MiroslavSolnol
Chairmanof the 53rd session
of the Comn~issionon HumanRights We ?reat11a 1pnreciatethe prompt actiontaken bv YourExcellencyin isstlinga certificate ' '
..
asserting Mr. Cumar-aswaln yS iulnlulli~y. kkG ctibuLIIIUU~dt14 iii'~&,G ;bic~ic~jb~Lti"\~i'ii~,t~~.....
issueda certificate. We are concerned that this lattercertificatewas drafted in [er-inswhichwotiltl
"'
appear to leavejurisdiction to theCourt to determinewhether Mr. Cumaraswainywas or was not
acting within his mandate;a fact which it was for theSecretary-Generalto determine. Weare
concerned in thisregard that, scveral court sessionshave alreadybeen held to hear the case. The,
mere holdingof suchcourt sessionsand the factthatthe SpecialRapporteur,or his legal
representative, hasto appear beforeand defend himselfin court in itself undermines theilnmunity
granted to us underinternational law.
The UnitedNationsExperts view sucha situationwithgreat concern. Underininingthe
immunityaccordedto one expertconstitutes an attackon the entire systelnand institutionof United
(
hations humanrights specialproceduresand mecl~anis~ns.
All differencesarisingout of the interpretationor applicationof the Convention shouldbe
referred to theInternationalCourt of Justice, asis specifiedby the 1946Convention on the
Privileges and Irnmunitiesof the United Nations. They are not to be decidedby nationalcourts
with the possibilityof varyingrulings, interpretationsandjurisprudence.
In lightof the presentcircumsta~~ces , e are of tlieview that differenceson tlie
interpretationon the application of theconvention havealreadyrisen.
We therefore, respectfullyrequestYourExcellency,to im~nediatelyinvoketheprocedur .s-
outlinedin Section 30 o__.he 1946Co n__e__io--on th.---rivileg-.-.-...Immu n__tes_.f_the United
Nations for a request to bemade to seekan advisory,~opinio~~~fr~~~~t~e~~,t~~a~o~~~~~~_r~O_r~~~~~
Justice; The Conventionstatesthat the opil;ionof the Court lnustbe acceptedas decisive by the
parties.
1 Pleaseaccepttlieassuranceof our highestconsideration.
Mr. Paulo Sergio Pinheiro
Chairman
Fourth Meetingof special rapporteurs/representatives/experts
and chairpersonsof workinggroups of the SpecialProcedures
and the AdvisoryServices Progranlme
of theUnitedNationsCo~~~missio on Hulnan Rights DOSSIERNO.35
SUMMARYOFTHE
JUDGEMENT OFHIGHCOURTOFKUALALUMPUR
DELIVERED ON 28JUNE1997
The Court dismissedan ApplicationMr. Cumaraswamyto set asideplaintiffs' writon
i 1 the basisofhis imwnity fromsuitpursuantto the Conventiononthe PrivilegesandImtnunities
of theUnitedNations.
heCourtconcludedthatthe Secretary-Generalcertificateimmunity is to be viewed
as anopinionthat hasno moreprobativevaluethan adocumentwhich appearswantingin
materialparticulars. It also indicatedthat thequestionwhetherraswamy's actions
werewithinthe scopeof his mandatemustbedeterminedwhenthe evidenceisbeforethe Court.
TheCourtalso noted thatitsjurisdictionwasnot oustedby theiluCasesincedecisionsof
the InternationalCourtof Justiceon apointofpublic internationallaw arenotbinding onthe
Court.
The Court heldthat it hadjurisdictionto hear thecaseon the merits,includingmaking a
determinationwhetherr. Cumaraswamywasentitledto any in!ununity.The Court alsoordered
thatr. Cumaraswamy's Applicationbe dismissedwithcostsandthat thosecostsbe taxed and
paid forthwithandthat. Cumaraswamywasto fileandservehis defencewithin 14daysfrom
the date ofthe Order. --+.#X#'*
. .,.
t
'I
.,.1 Q
...
!
Press Release
..:,1
I UnitedNatians OfficeatGeneva
., informatio Snervice
I *
m/97/43
30 June 1997
OF OFFICE OF RIG3 CO~SSSIO~R FOR RIOH'I'9EXPRBSSES CONCERN
-3 CO~T~$ DECISION ON IHM??TY OF UN MR.'- RIQ:XCSRAPPORTEW
....The ,Officar-in-Charg of-the Office of the HighCammissionefr or
E~mm Rights, Ralph Zacklin, is deeply concerned over a decision iatued by a
~igh Court of Malayeia thatithas a jurisdictio tno'hear an application
brougfir: by plaintiffs claiming that statement8 made by.$hc bpacial Rapportour
on the Independenceof Judgeaand Lawyers ,Piuam Cumaraewamy, were
defamsitory. In its decision, the Court held that the certificate given by
the Secretary-General of the UZlftedNations confirming the Special
Rapporteur' .immunity from legal procerrs waa merely a? opinion which L6 no:
binding up03 the Court.
lhis decieionestiblishes a dangeroup srecedentby undermining the
inununity accorded to an ~ert who ie on miseion for the mited N~~~QAs. Xn
deciding that a national court has t& jurisliiction to detcmine whether a
Special Rapporteur is acting in the courseof the performanceof hiermiseioz,
the coun $6 uourl3ing the exclueive authority of the Secretary-Generalto
determine whether the words spoken or mitten or act6 dons by experts on
mission nre perfo-med in thecourseof their missions, and therefcre,
enzicled to iwaity from legal process of every kind. I
This decision, if allowedto stand, presents a ~eriatia threat to
the entire system and inetituticn of the special procedurerncchanisms of the
Cornmis6ion on ~umzin Rights, whichis a pillarof the UnitedNationehuman
rights progzams. Zf hadepanderpt exparts ud opccirl rappoxteu~s are denied
suchimunity and subjected CO legalpmcess in domc~tic courts, this Jould
kave a negative eiffdct or,theirability to carry out their mdatea &'to
report an violations of humanr2ghts,thus r;ndenining theirindependence, UNITED NATIONS NATIONS UNIES
a&-&
POSTADDRKSS-APOSTAUNINATION.lWl7
CAULAOORCSS-ATLLCCRACVNATlNIIWYORK
RECCRCNCC:
The Legal Counsel of the United Nations presentshis
complimentsto the PermanentRepresentative of ~alaysia'and,
furtherto previouscorrespondence anddiscussions concerning
the defamationproceedingsagainstthe Special Rapporteuron
the Independence of JudgesandLawyersin the Malaysiancivil
courts,has the honourto referto the judge'sdecisionof 28
June 1997. As the PermanentRepresentativemay know, the
judge has decided that she has jurisdictionto hear an
application brought by plaintiffsclaiming, that statements
made by the Special Rapporteur weredefamatory. Her
decision is based, in parti on her determinationthat the
Secretary-General of the UnitedNations.n ,ote of 7 March 1997
confirming the Special Rapporteur S immunity from legal
process wasmerely "an opinionnwith scant probativevalue
anr?no bindingforceupon the courtand that the Ministerfor
Foreign Affairsr ''Certificate Under Section 7(1)" of the
International Organization( sprivileges and Immunities)Act
1992 (Act485) signedon 12 March1997 "wouldappearto be no
more than a bland statementas to a state offactpertaining
to the Defendant S statusandmandate asa SpecialRapporteur
and appearsto have room for interpretation."
The judge'sdecisiondisregardsthe Secretary-Generalts
exclusive authority to determinewhether the words which
constitutethe basis of plaintiff'scomplaintin Civil:Suit
S3-23-68 were spoken by Dator Param Cumaraswamy in his
capacityas Special Rapporteur on the Independence ofJudges
and Lawyersin the course of the performanceof his mission.
and that the Special Rapporteur is therefore immune from
legal processwith respect thereto.
The LegalCounseltsconcern, aspreviouslyexpressed in
his notesto the Permanent~epresentative of 2 May 1997 and
14 April 1997, that the Minister for Foreign Affairsr
Certifica-tm eightmislead thecourt into believint ghat it is
its task to determinewhetherthe wordshere in question were spoken by the Special Rapporteur in his officialcapacity,
has been borne out by the judge's determinationthat the
Minister'sCertificateis not conclusive.
In the light of the foregoing,the Legal Counsel is of
the view that the present situationis that the Governmentof
Malaysiahas not adequatelyfulfilledits obligation,under
section .34of the convention,to give effectto the terms of
section 22(b) thereof. If the judge's decision is not
reversed on appeal and the trial is.allowed to proceed
againstthe Special~a~~orteur,a disputebetweenthe United
-Nations and Malaysiawould arise under Section 30 of the
Convention. It would therefore seem essentialfor the
Government to remind the appellate courts of Malaysia's
obligationto fulfil its obligationsunder the Convention.
Furthermore, as the judge has ordered the Special
Rapporteur to 'submit a defense within 'twoweeks, it is
necessary that that order be stayed immediatelylest the
Special Rapporteurbe forced into a position of having to
defend his official actions before a domestic Malaysian
court. Should that occur, the Secretary-General might
considerit essentialto invokeArticle 30 of the Convention
immediately.
The Legal Counselavails himselfof this opportunityto
assurethe PermanentRepresentativeof Malaysiatothe United
Nationsof his highest consideration.
30 June 1997 xo ~~nyae puajap 02 5uyney 30 uapxnq ay2 mox3 osxe qnq s23e pue
spxo~yans 03 uoyqeyax.uyqxnoa ay2samop.e 30 suojs-pap asxanpe
Lu-ego saauanbasuoaay3 Lxuo 70u mox3 uoy>aa3oxd fiuypnxauy
A.
se poo2sxapunaq ~snmpue 'sqae xo spxo~ pa3~aqoxd ay2 30
1C.ux-e3 sqxnoa xeuoy2auuy xamsue 02 13uyneymox3 suoyqe~paqyun
ay7 103 syserl.uyu703xad'sqxadxapxayys 03 pau6~sap sy Aqyunmmy
syylLii.puyyAxana 30 ssaaoxapbax uox3 Aq~UnUiuyluoyssyu
xyay7 30 aauemxo3xaday2 30 asxnoa ay3 uy mayq Lq auop sq3-e pue
ua2qyx~.xouayods spxom 30 q~adsaxuy (q) :papxoaaeaq XIeys
Lay? xexnay7xed UI -suoyssymxyaqq y3y~ uoyqaauuoauy sAauxnof:
uo quads amy2 ayq 5u~pnxauy 'suoyssymxyay7 30 poyxad aq7
5uyxnp suoy7aun3xyay7 30 asyxxaxa7uapuadapu~ay3 103 Xxessaaan
axe se'say-~yunmupyue S~~~TTATX~ yans papxoaae aq xx-eyssuoyqe~
paqyun ay? xos suoyssym5uymxo3xad (A a-p~qxy 30 ado~s ay2
uyy7~m'5uymoa sxeyayz30ueyq xayqo) sqzadxa,, :7ey3 qxed quauy3xad
uy sapynoxd 'uoy~enxasax Xue 3noyq-p 'LSGT xaqozpo 82 aauys Aqxed
e uaaq sey eysLe~e~yayy~ 03 'sno~7e~pa3yun ay2 30 sayqyunwm1
pue sa5ayynyxday3 uo uoyquanuoa ay2 30 (q)zzuo-gaas
'uoy2efiyq~p~aauaxagaz-anoqeay7 yqym uoyqaauuoauy pa~~~zxn3
axe suo~qg~paqTun ay2 30 say3TunwuIpue sa6axynyxday2 uo
uoyquanuo3 aG2 xapun ,suo-ge6?~qok,eysrCe.~e2eq7 axnsua 02 aye?
paau e-$sLexe~30 quamuxanoaay7 7ey3 sxapFsuoaay suoyqae 3ey~
uoysyaaxdxaqeax5yqym 1C.3y~ad 07 xnouoy ay3 sey luoyssy~xnoL 30
any3equasaxda~quaueuxadAqndaa ayq q2-p L-ep qeyq uo uorqesxanuoa
syq pue ~661:L~np 1 30 apqxan aqou syy L.~layaadsa pue
's3xnoa x~hy3 UB~SLB~M ay3 uy sxaheq pue sa6pnp 30 aauapuadapu~
ay2 uo xna2xoddexIeyaadsay3 qsu~efie s6uypaaaoxduoyqeuegap
ay7 5u~uxaauoasa2ou pue aauapuodsaxxo~snoynaxd 03 xayqxn3
'pueeys&exe~ 30 an~2e3uasaxdaaquaueuxad ay7 07 s2uamyxduoa
syy squasaxdsuoy2-e~ paqyun ay3 30 Iasuno3 p5aq ay&
S3INn SNOILVN SNOILVN As your Governmentis aware, Mr. Data' Param Cumaraswamy was
originallyserved with writs in the current suits in December
1996, and theGovernmentwas informedby early January 1997 that
the United Nations consideredthat the Convention provided
immunityfrom those suits.Indeed, by 12 March 1997- the Minister
for ForeignAffairs submitteda Certificatein relation to these
proceedings.Nevertheless,the proceedings wereallowed to
continue,in spite of the repeated objectionsof the United
Nations and withoutany further intervention byyour Government,
with personal expense forthe Special Rapporteur,until the High
Court on 28 ~une 1997 handed down its negativedecision on his
applicationto set aside the writ because of his immunity from
legal process in respect of the subjectmatter of the writ;the
Court orderedthat the Special Rapporteur'ssummons be dismissed
with costs, that costs be taxed and paid forthwithby him and
that he file and serve his defense within 14 days of the date of
the order.Although theamount of the costs to be taxed have not
yet been determined,they are likely to involvemany hundredsof
thousandsof MalaysianRinggit, quite aside from the expenses
that the Special Rapporteurhas himself incurred.Moreover, he
will immediately haveto incur further expensesin preparing his
defenseon short notice, and may potentially beexposed to
furthercosts taxed tohim should he loose theproceedings in the
High Court. Any appeal of the High Court's order to the Court of
Appealswill involvefurther expenses,as well as the risk of
furthertaxed costs.
. .
It is the positionof the United Nations that to expose one
of its special rapporteursto such burdensome and
potentiallyruinous expenses.andtaxed costs, quite aside from
any substantive judgment that might be awarded against him, in
respect ofwords utteredin the performanceof the Rapporteurfs
officialfunctionsas determinedby the United Nations, iscalculatedto interferewith his independence in performingthese
functionsand is likely to have a negativeeffecton the autonomy
of other suchrapporteursand similarexpertson mission,who may
fear that the performanceof theirfunctionscould result in
comparable destructivleegal attacksagainstthem. _
Consequently theUnited Nations considersthat itis the
responsibilityof your Governmentto intervenein the current
proceedingso that theburden of any furtherdefense, including
any expensesand taxed costs resultingtherefrom,be assumedby
the Government.Furthermore,Mr. ~umaraswamyshould beheld
harmlessin respectof the expenseshe has alreadyincurredor
that are beingtaxed to him from the proceedingsso far. Finally,
to preventthe accumulationof further expenses and costs and
,furtherneed for submitting adefense untilthe matter of his .
imkunityis definitively resolveb detween theUnitedNations and
your Government,it appearsnecessaryfor your Governmentto
supportthe motion thatwe understandMr. Cumaraswamyhas made to
have the High Courtproceedings stayeduntil such resolution.
Shouldyour Governmentdecide thatit cannotor does not
wish to protectand hold harmlessthe specialRapporteurin the
manner indicated above, then the UnitedNationsis likely to
concludethat a differencehas arisenbetween itself and'your
Government withinthe meaning of the secondsentenceof Section
30 of the Conventionon the Privilegesand Immunitiesof the
United Nations.In that event the Secretary-Generalould'haveto
approach theGeneralAssembly to seek,in accordance with that
Section,'anadvisory.opinionon any legalquestions'involved in
that difference, whichmust, as also providedin that Section,be
acceptedas decisiveby the parties.
The Legal Counsel availshimself ofthis opportunity to
assure thePermanent Representativeof Malaysiato the United
Nationsof his highest consideration. UNITED NATIONS NATIONS UNIES
COSTADDRESS-AOR).OSTUNITENATION.Y90017
CABLAODRCSS-ADRTCLFCRAPHVNATIOHCWTORK
8 July 1997
Dear Ambassador Razali,
Further to our conversationyesterdayand to the note
verbale that I handed to you on that occasion,I must now inform
you of the latest developments in the respect ofthe defamation
suit that has been brought in the ~alaysiancourts against the -.
Human Rights Commission's Special RapporteurOn the Independence - -
I / of Judges and Lawyers, Mr. Dato' Param Cumaraswamy.
Earlier today, the Presidentof the Court of Appeal, sitting .
as a single judge, dismissed, withcosts,Mr. CumaraswamyJs
.-
application for stay of execution.He will thereforenow have to
file his substantive defense,by Friday, 11 July, and may almost
immediately have to pay both the costs associatedwith his failed
motion for immunity in the trial courb and of his failed
application to the Court of Appeal for a stay of executionof the '.'
orders of the trial court.
This development adds considerable urgency to thematters we
discussed yesterday afternoon. In particular, unless your
Government can now intervene with the competent courtsto effect
an immediate stay of execution, the Secretary-General will have
no choice but to raise this matter in the General Assemblv.
pointing out that unless the Malaysian Government assumesa the
defense of the current proceedingsand the costs associated
therewith, the United Nations will p""/kely,be considered
1) liable for these.
Hans Core11
under-Secretary-General for ~e~al' A£fairs
The Legal Counsel
.-
H.E. Mr. Ismail Razali
Permanent Representative of Malaysia
to the United Nations
New York . . ..
, 05/07 '97 15:45 m-t.1122 917 00 92 SPEC. PROCEDFRES rh001
clum
3%
a"a OFFICE DES NATIONS UNIES A GEN~VE UNiTED NATIONS OF1 ICEAT GENEVA
A HAUTCEKlRE WUR LES DROm DE UHOMM~IE HIGH COWSIONER F07HUhVVJRIGHTS
ul CEmE FOR HUN,RIGmS
~alslCgnmmer: VNATIONS.GENM
Tildphone. (dl-P) 9173353 ......
C'
Rcfcrcncc ! Palsisdh'nuoru
CH 1211QmlevaD
,. . i
.............'l Geneva, 8 July1997
YourExcellency, OFF,CE ,-EGi~~ -L.FFA;RS
r,LOG N'j.
l arnwriting againto Your ~&%ency on behalf ofthe SpecialRaooorteurs 'Representatives/
Experts and Chairpersons of Working Groups of the SpecialProcedures and t le Advisory Service
Progamme ofthe UnitedNations CommissiononHumanRights T.hematter is partit .ularl-urge-..t ill-.-t
of....a..'sdecisionwherethe Special.Rapporteur's,applicationto staythe order m ide on 28 June 1997
..._._....._...._....-.__._-. .. ...--..-.*--.---...-.-.-.-.--.----*.-----.--. --..-..-.-...
.......................----fu.... The 28 June 1997 decisionof the High Court inK1 lalaLumpur allowed
the continuation of the defamation action broughhainst Dato' Param Cumwaswamyby two public
corporations. Hence, the substantive appeal, when heard,will become redundant.becauseDato"
~umaraswarn~willnow have to filehis defenceand proceededto trial-
The immunity .from IegaI process grante-----.--...-..--....-.v--.-......h...1...(i...n.ventio,......he
Privileges ...dL.r.mumtr_-_--l---.mI-C----- Ndations is now compw undermined. 'Vecannot emphasise
enod our alarmofthis ituation. Threateningthe immunityof one expert constilutes an attackonthe
eritir~systemandinstitution ofthe United Nations specialprocedures and rnechani sms.
It was alreadyour opinion that a diierence had risen out of the interp-etation of the 1946
Conventio onn the Privileges and Immunities of the UnitedNations. W --.respectklly believe th ---a.ny.
firther delayininvokingSection .....f....1.946 Conve$o~on,~tPn\ril~es and-~~~i~~,of~e_~U~~ed
Nati....-.-.....-.........' Cumarasw a. y..._kr_h.r__.a....a_.d-will.-..-.an.o.p.n.i_-_tat_on_o._others to
challenge our imm---ty:"' -
a
Wer esp effi......q.u.s.Y.o u_E_xce_len_c....p---icl-------W--.immu ..i..o.t.....p..cialRapporteurs ,*.'
and indicatethe seriousness of this precedent.
Please accept the assurance of our highes ctnsideration.
H.E. Mr. Kofi Annan
Secretary-General
United Nations Organisation
UN Headquarters
New York,N.Y.
USA
F-~aY(@01)212.963.35 5'1 DOSSIER NO. 41
SUMMARYOFTHEWRITOFSUMMONSANDSTATEMENTOFCLAIM
inthe HighCourtofMalaya
at KualaLumpur
SuitNo.S4-23-66
registered9December1996
served9July 1997
The Writ
i )
OnePlaintiff claimsMR60,000,000for damages,includingaggravatedandlorexemplary
damages,forslanderandfor libel aswell as interestat 8%perannum accruablefiomdateof
judgement until the dateof payment,costsofthe actionandaninjunctionto restrainDefendant
fromfurtherdefamingPlaintiff.
TheStatementof Claim
Atallmaterialtimes,Defendantwas anAdvocateandSolicitorof theHighCourt of
Malayaandthe ChiefExecutivePartnerof aMalaysianlaw firm (ShookLin & Bok).
l I
Defendantspokeahdtherebypublished defamatorywords of and concerningthe Plaintiff,
his professionandhis conducttherein.
His words werecalculatedto disparagePlaintiffinhisprofession
Thepublicationofthe words,injuredPlaintiff'sfeelingsand seriouslydamagedhis
personalandprofessional reputationandbrought himintopublic scandal,odium and contempt. d.-.k
UNITED NATIONS @ NATIONS UNIES
A*&
POSTAOORI'IS-APOSTAUNIk4TIOH.10017
CADAOD~CSS-ADTCLCCRArUHATINKWYORl(
10 July 1997
Dear Ambassador Razali,
Once more with reference to my letterof 8 June, I now have
to report to you a further development inrespectof the law
suits being brought against theHuman Right CommissionlsSpecial
Rapporteur on the Independenceof Judges andLawyers, Mr.Dato'
Param Cumaraswamy. This morning he was servedin respect of yet
another suit, by another plaintiffbut based on the same
interview, claiming RM60 million; though thecase had apparently
been filed on 9 December 1996, the writwas only served on Mr.
Cumaraswamytoday. I am attaching a copy of that filing, which
requires a response within 8 days.
...
I& this connection Iwould also like to remind that the
deadline for Mr. Cumaraswamyto present hisdefense,as specified
in the order of 28 June by the High Court of Kuala Lumpur,
expires tomorrow. By that time he must decide whether todefault
on his defense or to submit the extensivedocumentationrequired
to resist the two suits that had been filed previously.
Should your Government allow matters to advance to that
stage, the Secretary-Generalmay feelconstrained toinform the
General Assembly immediatelyof the dispute between Malaysia and
the United Nations, in order to seek the approvalof certain
questions to be put to the InternationalCourt of Justice
Immunitiesof the United Nations and to propose that it appealnd
formally to your Government to arrange fora stay of the pending
ofocesedingshisn rhedeMaldaitisancourntsunt' the InternationalCourt
ly yours,
Hans Core
Under-Secretary-General for.LegalAffairs
The Legal Counsel /
H.E. Mr..Ismail Razali
Permanent Representative of Malaysia
to the United Nations
New YorkTHESECRETARY-GENERAL
11 July 1997
To Whom It May Cbncern
In connectionwith the Civil Suit No. S4-23-66-
1996 by DatolV Kanagalingam againstDato' Param
Cumaraswamy, theSecretary-Generalof the United
Nations hereby notifies the competent authoritiesof
Malaysia that Datol Param Cumaraswamy, nationalof
Malaysia,is the Special Rapporteuron the
Independenceof Judges and Lawyers of the United
Nations Commissionon Human Rights. In this
capacity,Datol Cumaraswamy is entitledto the
privileges andimmunities accorded to experts
performingmissions for the United Nations under
ArticleVI and V11 of the Conventionon the
Privilegesand Immunitiesof the UnitedNations to
which Malaysia has been a party since 28 October 1957
without anyreservation.
In accordancewith section 22 of Article V1 of . :
the Convention,"experts ... performing missionsfor
the United Nations shall be accorded such privileges
and immunitiesas are necessary for the independent
exerciseof their functions. ..". Section .22(b)of
the Conventionfurther providesthat' "they shall be
accorded, in respect of words spoken or written and
acts done by them in the course ofthe performanceof
their mission, immunity from legal process of every
kindN. As such, the Special Rapporteur onthe
Independenceof Judges and Lawyers, is immunefrom legal process of every kindin respect of words
spoken or written and acts done by him inthe course
of the performanceof his mission.
The Secretary-Generalhas determined thatthe
words which constitutethe basis of plaintiff's
complaintin this case were spoken by the Special
Rapporteurin the course of his mission. The
Secretary-General therefore maintainsthat Datof
Param Cumaraswamyis immune from legalprocess with
respect thereto.
Under Section 34 of the Convention,the
Governmentof Malaysia has a legal obligationto "be
in a position under,its .ownlaw to give effect to the
terms of this Convention". The Secretary-General of
the United Nations therefore requestt she competent
Malaysian authoritiesto extend to Dato' Param
Cumaraswamy theprivileges and immunities,courtesies
and facilities towhich he is entitledunder the
Conventionon the Privilegesand Immunitiesof the
United Nations.THESECRETARY-GENERAL
11 July 1997
Dear Ambassador Razali,
Further to our conversationthis morning about
the civil law suits that have been filedagainst the
Special Rapporteuron the Independence of Judges and
Lawyers of the Human Rights Commission. Dato' Param
Cumaraswamy, I would now like to requestyou to
transmiturgently to your Governmentthe enclosed
note verbale. by which I certify the immunity of Mr.
Cumaraswamy inrespect of thelatest law suit that
was filed against him on 10 July: CivilSuit No. S4-
23-66-1996 by Dato' V Kanagalingam.
We understandthat Mr. Cumaraswamyis applying
on Monday to have thatsuit suppressedon account of
his immunity,and in this connection we deem it
essential that theappropriate representative of your
Government support that motionand msubmit the
attachednote verbale to the competentcourt.
Accept, Sir, the assurancesof my highest
consideration.
H.E. Mr. Ismail Razali
Permanent Representative of Malays-ia
to the United Nations
New York g/?.%
UNITED NATIONS I@ NATIONS UWES
"i-r-
POSTADDRESS-ADRPOSTAVYlTNATION1!W17
CABADDRESS-ADRTELEGRAPVNATINEWYDRK
REFERENCE;
The Secretary-Generalof theUnited Nations has
the honour to present his complimentsto the
PermanentRepresentativeof Malaysia and to inform
him, in connection with the Civil Suit No. S4-23-66-
1996 bv DatofV KanasalinqamaqainstDatol Param
Cumaraswamy,that Dato' Param Cumaraswamy,a national
of Malaysia, is the Special Rapporteur on the
Independence ofJudges and Lawyersof the United
Nations Commission on Human Rights. In this
capacity,Dato' Cumaraswamyis entitledto the
privileges and irnrnunitie accordedto experts
performingmissions forthe United Nations under
~rticle V1 and V11 of the Conventionon the
Privileges and Immunitiesof the United Nations to
which Malaysia has been a party since 28 October 1957
without any reservation.
In accordance withsection 22 of Article V1 of
the Convention, "experts ... performingmissions for
the United Nations shall be accordedsuch privileges
and immunities as are necessary forthe independent
exercise of their functions. ..If. Section 22 (b) of . .
the Convention furtherprovides that"they shall be
accorded, in respect of words spoken or writtenand
acts done by them in the course of the performanceof
their mission, immunity from legal process of every
kindo. As such, the SpecialRapporteuron the
Independenceof Judges and Lawyers, is immunefrom legal processof every kindin respect of words
spoken or written and acts done by him in the course
of the performance of his mission.
The Secretary-Generalhas determined thatthe
words which constitute the basis of plaintiff's
complaint in this case were spokenby the Special
The
Rapporteur inthe course of his mission.
Secretary-Generalthereforemaintains that Datof
Param Cumaraswamyis immune from legalprocess with
respect thereto.
Under Section 34 of the Convention, the
Government ofMalaysia has a legal obligationto "be
in a position under itsown law to give effect to the
terms of this Conventionf1.. The Secretary-General of
the United Nations therefore requests thecompetent
Malaysian authoritiesto extend to Datof Param
Cumaraswamy the privileges and immunities, courtesies
and facilitiesto which he is entitledunder the
Conventionon the Privileges and Immunitiesof the
United Nations.
The Secretary-Generalavails himself of this , '
opportunityto assure the PermanentRepresentativeof
Malaysia to the United Nations of his highest
consideration. DOSSIERNO.45
S-Y OFTHE
JUDGEMENT OFCOURTOFAPPEALOFMALAYSIA
DELIVEREDON 20 OCTOBER1997
The CourtofAppeal statedthattheHigh CourtJudgewas entitled,amatter of law,to
deferdeterminationonMr. Cumaraswamy'spleaof immunityuntil aftershehad thebenefitof
evidenceonthat issue. TheCourtindicatedthatthe Convention does notconferanypoweror
authorityupon theSecretary-Generalto declarethatthewords complainedof were spokenby
Mr. Cumaraswarnyin his capacityasSpecialRapporteurandthat the Conventionmerely
confirmsthepowerof the Secretary-Generalto waiveimmunity. The Courtthus concludedthat
itwas forthetrialjudgeto determinewhetherthewordswerespokeninhis capacity as Special
Rapporteurandwhetheritwas within his mandateto do so.
1 1 The CourtofAppealthereforedismissedthe appealofr. Cumaraswamyagainstthe
Judgement of theHigh CourtofKualaLumpur (DossierNo.35)holdingthatit was forthe Court
to determinewhetherthe actionscomplained of were performedhe courseoMr.
l
1 Cumaraswamy'smission. TheCourt, however, overturnetherulingoftheHigh Courtthatthe
l
costsof the HighCourtcaseweretobepaid forthwith;ratherthey shallbepart ofthecostsof the
mainaction. Howeverthe Courtheldthatthecostsofthe appealto the Courtof Appealwereto
l
be taxedandpaidby Mr. Curnaraswarny. DOSSIERNO. 46
SUMMARYOFTHE WRITOFSUMMONSANDSTATEMENT OFCLAIM
intheHighCourtofMalaya
atKualaLumpur
registered9 December 1996
served23 October1997
TheWrit:
( i
ThreePlaintiffsclaimMR95,000,000fordamages,including aggravatedand/or
exemplarydamages,forslanderandforlibelas well as interest a8% per annum accruablefrom
dateofjudgementuntil the dateofpayment,costsof actsandinjunctionto restrain Defendant
fromfurtherdefamingPlaintiffs.
The Statementof Claim
At allmaterialtimes, DefendantwasanAdvocateandSolicitorofthe High Court of
Malayaandthe ChiefExecutivePartnerof aMalaysianlaw firm(ShookLin & Bok).
Defendant spokeandthereby published defamatorywords ofandconcerningthe
, Plaintiffs, their businessandtheir conducttherein.
His wordswere calculatedto disparagePlaintiffsntheirbusinessandto causethem
pecuniarydamage.
Thepublicationofthewords, injured.thefirstPlaintiffs feelingsand seriouslydamaged
his personal andbusiness reputations,andseriouslydamagedthe second and thirdPlaintiffs'
tradingreputationsandbroughtallthreePlaintiffs intopublicscandal, odiumandcontempt.THESECRETARY-GENERAL
27 October 1997
To Whom It Mav Concern
In connectionwith the Civil Suit byTan Sri
Dato' Vincent Tan thee Yioun, Berjaya Industrial
Berhad andBerjaya Corporation (Cayman)Limited
againstDatol Param Cumaraswamy,the Secretary-
Generalof the United Nations hereby notifiesthe
competentauthorities of Malaysia that Dato' Param
Cumaraswamy,national of Malaysia, is the Special
Rapporteuron the Independenceof Judges andLawyers
of the United Nations Commissionon Human Rights. In
this capacity,Datol Cumaraswamy is entitled to the
privilegesand immunities accordedto experts
performingmissions for the United Nations under
Articles V1 and V11 of the Conventionon the
Privilegesand Immunities of the United Nationsto
which Malaysiahas beea a party since 28 October 1957
without any reservation.
In accordancewith section 22 of Article V1 of
the Convention, I1experts... performingmissions for
the United Nations shall be accorded such privileges
and immunitiesas are necessary for the independent
exerciseof their function^...^^.Section 22(b) of
the Conventionfurther provides that "they shall be
pccorded,in respect of words spoken or written and
zcts do32 by thex FE tht CGC~SE ~f ih~ ptrfornmcs of
Chsir rnissi~n,ir.-cnzry fro- leg21 procsss of s-.isry
kid". As sl~ch,the Specid ilzpporteur orrtheIndependenceof Judges and Lawyers,is immune from
legal processof every kind in respect of words
spoken or writtenand acts done by him in the course
of the performanceof his mission.
The Secretary-Generalhas determined thatthe
words which constitute the basis a£ plaintiffs'
complaintin this case were spokenby the Special
Rapporteurin the course of his mission. The
Secretary-General therefore maintainsthat Datof
Param Cumaraswamyis immune from legal process with
respect thereto.
Under section 34 of the Convention,the
Governmentof Malaysia has a legal obligation to Itbe
in a positionunder its own law to give effectto the
terms of this Conventionn. The Secretary-Generalof
the UnitedNations thereforerequeststhe competent
Malaysian authorities to extend to Dato' Param
Cumaraswamythe privilegesand immunities, courtesies
znd facilitiesto which he is entitledunder the
Convention onthe Privilegesand Immunitiesof the
United Nations. UNITED NATIONS NATIONS
CAOLADDRLS~-ADTCLICCRA?UHhTINIWIORK:
RETERCNCC.
The Legal CounseZ of the UnitedNations presents his
compliments to the Permanent Representative of Malaysia
and, further to previous correspondence and notes
concerningthe defamationproceedingsagainst the Special
Rapporteuron the Independenceof Judgesand Lawyers in the
Malaysian civil courts, now is dompelled to invite the
attentionof the PermanentRepresentativeto the Judgment
I I of the Courtof Appeal of 20 October1997 (copyattached) ,
rejecting the appeal of the SpecialRapporteur from the
judgmentof the High Court of 28 June 1997.
The Courtof Appealheld thatthe Secretary-General 1
certificateof 7 March 1997, which determined that the
I1wordswhich constitutethe basisof plaintiff S' complaint
in this case were spoken by the SpecialRapporteur in the
course of his rn.i~sion~w ~,s not conclusive as to this
issue. T5is determination is based in part on Malaysian
domestic law and in part on the conclusionthat the 1946
Conventionon the Privilegesand ~mmunitiesof the United
Nations (the General Convention) , to which Malaysia has
been a party since 28 June 1957 without anyreservation,
only establishes the Secretary-General'spower to waive
immunity but not to make a determinationas to whether
I immunitymay be asserted; indeed,the Court heldthat that '
is a matter forthe MalaysFan courtsto decide.
As it is the view of the United Nations that it is.
exclusively for the Secretary-Generalto determine --
subjectto possible review by the InternationalCourt'of
Justiceunder Section 30 of the GeneralConvention -- when
the immunityof an expert on mission is to be asserted, it
considers that the judgment is therefore based on an
incorrect interpretation of the General Convention.
Therefore,if the Governmentsupportsthe view of the Court
o. .ppeal, thP_na ciifference has arisen- concerning ths
rnzs..rttationof -th.. *oz-\~sntFon w,ithin ths mezz~i ~crf
Es2i102 33 zhfr30~; 2;~s ZectFon czlle for resolution cf
~2~5 6~2f frE~cf~ =a=. E,-..? ,lt=~LL~ courts ~f azy State
c,xcll~sivtl jy msarA:-cf 2 . . -. ~&iii~on- 03FrAi0"cf
thz Internation~lCours of Sustic?. The Court of Appeal's judgmenf turther suggests that
AI Lilecertificatethat the Ministerof Foreign Affairsof
Malaysia signed on l2 March 1997 hadactuallyspecified, as
the Secretary-General had, that the words in questionhad
been spoken by the SpecialRapporteur in the courseof his
official mission,such a determinationwould have been
considered, under section 7 (2) of 'the Malaysian
International Organisations(Privilegea sndImmunities) ~ct'
of 1992 (Act 485)' as "evidenceof the facts certifiedt1.
The fact thatthe ForeignMinister'scertificate did not so
specify andthat it would thereforn eot be properly taken
into account by the Malaysiancourts,was a concern that
( 1 had been brought to the attention of the Permanent
Representative and of theMissionon severaloccasionsboth
before and after that certificate was issued. TheUnited
Nations considers thatin failingto conf im the Secretary-
General' Sdetermination, the certificateof the Ministerof
Foreign Affairsallowed the Court of Appeal to reach an
incorrect conclusion as to the immunityof the Special
Rapporteur.Moreover,the failureof the Ministerto give
a certificate that directl yddressed the applicability of
the GeneralConvention to the SpecialRapporteurunder the
relevant circumstancesm ,eant thatthe Governmenthad not
adequately fulfilled its obligationto give effect to
Section 22(b)of the GeneralConvention.
If the Governmentdoes not agreethat the words that
constitute the basis of plaintiffs' suitwere spoken by the
I SpecialRapporteurin the courseof the performanceof his '
mission,then a differencearisingout of the applicztion
of the GeneralConventionexistsin thisregardbetweenthe
United Nationsand Malaysia,whichtoo shouldbe referreG
to the InternationalCourt of Justicepursuant to Section '
30 of the Convention. Theavailability of that method of
settling differences as to whetheror not the Secretary-
Generalhas properlyassertedthe immunityof a particular
officialor expert on mission,makesit clear that such an
assertionby the Secretary-General is indeed subjectto
judicial review and thus does not constitute -- as your
Governmenthas sometimesassertedznd the Court of Appezl
zgeers to btlievz -- an unreviewable determinationof e
cyps thzt tha p~rtiesto the Gznerel Co~vsntio~can~ot br
.- -.
zons~ccred to havf E5Tsa2 Co. As the Legal Counsel had indicated in his note of 7
July 1997, the United Nati:,::.:--.--~;~,t:il,xi: i:: th^l
responsibilityof your Government to intervene in the
current proceedings so that the burden of any further
defense,includingany expensesand taxedcostsresulting
therefrom,be assumedby the Government. Furthermore,the
Special ~apporteui should be held haxrnl&ss in respect of
the expenseshe has already incurredor that are being"
taxed to him from the proceedings so ,far. In this
connection the Legal.Counsel also wishes to call the
attention of the Governmentto the factthat a third Writ
has just been sewed on the SpecialRapporteurby three
pl'ainti fsclaimingaggregatedamagesof RMlOO million;the
Special Rapporteur has until 30 Octoberto assert this
immunityin that proceeding,and theSecretary-General has
alreadyprovided himwith a certificatefor thatpurpose.
Once more, - it is expected that the Government will
effectivelysupport the SpecialRapporteur's application,
taking into account the deficiencies in its previous
certificatesas appears from theopinionof the Court of
kppeal .
As the PermanentRepresentative knows,the Secretary-
Generalhas requestedMaitreYves Fortierto assisthim in
resolvingthe impassethat appearsto have arisenbetween
the United Nations and your Government.Mr. Fortier has
indicatedthat he would be prepared totravelto IJIalaysia
at the end of November,providedthat he can be assured of
seeingthe Prime Ministerat that time. We thereforetrust '
that arrangementswill be nzde to facilitate such a visit,
and that to this end you will informus at an early date.
The.Legal Counsel avails himselfof this opportunity
to assure the PermanentRepresentative of Malaysiato the
United Nations of his highest consideration,andof his
readinessto consult with the PermanentRepresentative or
with members of his Mission concerningthesematters. 'THESECRETARYGENERAL
7 November 1997
Excellency,
Thous- with considerablereluctance, I feel
constrainedto addressyou personallyon a matter
that hasfor sometime cloudedthe otherwise excellent
relationsbetween Malaysiaand the United Nations:
the numerousmassive suits that have been filed in
Malaysiancourts against the SpecialRapporteur for
--- Inde-endenceof Judges and Lawyersof the United
Nations Commissionfor Human Rights,Dato' Param
Cumaraswamy;
You are aware that the Court ofAppeal of
Malaysiahas just ruled thatthe question of the
Special Rapporteur'simmunityfrom suit, which I had
esserted in a certificatefiledwith the High Court,
is not determinedby that certificate, butis a
matter to be adjudgedin due courseby Malaysian
courts.This is a position that the United Nations
cannot accept, and if your Governmentshares the view
.
of the Court of Appeal, a difference appearsto have
arise3between your Governnentand this Organization
with respectto the interpretation of the i916
Conventionon the Privileoes and Immunitiesof ths
United Nations.
. Excellency
Dato' Seri Dr. Mahathlr Mohamed
Prime Minister
:Jalaysia It should be understood that althoughthe
Secretary-General'sdetermination,as to whether an
expert on mission or an officialof the United
Nations is acting within his orher official
functions,may not be reviewedby any nationalcourt,
that determinationis, however,subjectto judicial
examinationby the International Court of Justice
pursuant.,to Section 30 of the 1946 convention (to
which I refer at greater lengthbelow).
As indicated inmy severalcertificatesrelating
to the three law suits thathave been filed against
Mr. Cumaraswamy,he was acting withinthe scopeof
his official functionsas SpecialRapporteur. He is
therefore entitledto seek recompense fromthe United
Nations for any costs he himselfhas incurredin
conductinghis defense, for any costs thatare taxed
to him by the Malaysiancourts and, shouldhe lose,
for the amounts of the consequent judgments,which
might amount to well over a hundredmillionRinggit.
In the event Mr. Cumaraswamydoes so, the United
Nations would haveno choice but to seek compensation
from your Government for any expensesit thus incurs.
It is the position ofthe UnitedNations that it
is the clear responsibilityof your Governmentto
accord thz Special Rapporteurfull inmunityfrom the
current litigation iriche Malaysiancourts.klthough
it is not for thisOrganizationto specifyhow that
immunity is in practice to be arranged,your
Government mightconsider filingwith the competent
courts certificatesissued by theForeignMinister
pursuant tosection 7 of the MalaysianInternational
Organisations (Privileges and Immunities) Actof 1992
(Act 485) , which would take into account thereason
why the certificate esrlier filedby the Minister in
respect of =hs first lsw suit-;-ss not acceptedas
~5tzrT~~nazi-b~>-..-a- ----- SI .,,-??SEL. Should your Government fail, for whatever
reason, to afford full and effective protectiot no
the Special Rapporteur from the currentlaw suits or
from future similar ones, it will be necessary forme
to inform theGeneral Assembly that differenceshave
arisen between Malaysia and the UnitedNations with
respect thismatter, and that consequentlyit will
become necessary to invoke Section 30 of the 1946
Convention.As you know, this would require the
Assembly toaddress oneor more legalquestionsto
the'Internationa1Court of Justicefor an advisory
opinion, and the repliesgiven by the Court to such
questions would thenbe binding onthe Organization
and on your Government.
It is,,however, my earnesthope.thatsuch resort
to the General Assenbly and the InternationalCourt
of Justice can be avoided by havingyour Government
arrange for the necessary immunitiesto be
effectivelyaccorded to the SpecialRapporteur.
Should your Governmentwish to exploresuch
possibilities,it might do so eitherwith the Legal
Counsel or with Maitre Yves Fortierof Canada, whom I
have requested to assist me in this respect. If
necessary,Piaitr3Fortier is prepared t.0visit you as
my Special Envoy later this month. I sincerely hope .
that this matter can be resolvedb5foremy visit to
Malaysia inDscanber.
Please accept, Excellency,the assurancesof my '.
highest consideration. DOSSIERNO.50
SUMMARYOFTHEWRITOFSUMMONSANDSTATEMENTOFCLAIMS
inthe HighCourtofMalaya
atKualaLumpur
SuitNo.S1-23-67
registered9 December 1996
served21November1997
TheWrit:
TwoPlaintiffs claimMR60,000,000for damages,includingexemplarydamages, for
slanderandforlibelandinterestater mum accruablefiomdateofjudgementuntilthe
dateofpayment, costsofthe actionandfor an injunctionto Defendantfromfurther
defamingPlaintiffs.
TheStatementof Claim
At allmaterialtimes,DefendantwasanAdvocateandSolicitorof theHigh Courtof
Malaya and the ChiefExecutive Parrf aMalaysian lawr mShookLin& Bok).
Defendant spokeand thereby published defamyordsof andconcerningthe
Plaintiffs,theirbusiness andtheirconduct therein.
His wordswerecalculatedto disparagePlaintiffsintheirbusinessandto causethem
pecuniarydamage.
Thepublication ofthewords,seriouslygedPlaintiffs'personal,businessand
tradingreputationsandbroughtthemintopublic scandal,odiumand contempt.THESECRETARY.GENERAL
21 November 1997
To Whom It Mav Concern
In connectionwith the Civil Suit (KL High Court
Suit No S1-23-67 of 1996) by Insas Berhad and
MegapolitanNominees SDN BHD against~ato Param
Cumaraswamy,the Secretary-General of the United
Nations hereby notifies the competentauthoritiesof
Malaysia that Dato' Param Cumaraswamy,national of
Malaysia,is the Special Rapporteuron the
Independenceof Judgesand Lawyers of the United
- -NationsCommission onHuman Rights. In this
capacity,Dato' Cumaraswamyis entitled to the
privilegesand immunities accorded to experts
performingmissions for the United Nations under
ArticlesVI and VII of the Conventionon the
Privilegesand Immunitiesof the United Nations to
which Malaysiahas been a party since 28 October 1957
without anyreservation.
In accordancewith section22 of Article VI of
the Convention, "experts...performingmissions.for
the United Nations shall be accordedsuch privileges
and immunitiesas are necessary for the indep.endent
exerciseof their functions...". Section 22(b) of
the Convention further provides that "they shall be
accorded,in respect of words spoken or written and
acts done by them in the courseof the performance of
their mission, immunity fromlegal process of every
kindn. As such, the Special Rapporteuron the Independenceof Judges and Lawyers,is immune from
legal process of every kind in respectof words
spoken or written and acts doneby himin the course
the performance of his mission.
The Secretary-General hasdetermined that the
words which constitutethe basis of plaintiffs'
complaint in this case were spokenby the Special
Rapporteur in the course of his mission The
Secretary-Generalthereforemaintainsthat Datol
Param Cumaraswamy isimmune fromlegal process with
respect thereto.
Under Section 34 of the Convention, the
Governmentof Malaysia hasa legal obligation to "be
- , .in a position under itsown law to give effect to the
terms of this Conventionll. The Secretary-General of
the United Nations thereforerequeststhe competent
Malaysian authoritiesto extend to Dato' Param
Cumaraswamy the privileges and immunities,courtesies
and facilities to which he is entitledunder the
Conventionon the Privilegesand Immunitiesof the
United Nations.
w KBfi A. Annan UNITED NATIO'NS NATIONS UNIES
-7C-
POSTAADDRESS-ADRESPOSTALUNITEDNATIONN.Y(WIT
CABLEAODRKSS-ADRESTLLIGRAPHIOVNATlONNCWTORS
The Legal Counsel of the.UnitedNations presentshis compliments
1 )
to the Permanent Representativeof Malaysiaand,furtherto previous
correspondenceconcerningthe defamationproceedingsin the Malaysian
civil courts against the Special Rapporteuron the Independenceof Judges
and Lawyers, hasthe honourto presentthe attachedcertificate of
immunitysigned by the Secretary-Generalin connection with a fourth suit
(Suit No. S1-23-67) which has beenfiled by (isas Berhadand Megapolitan
Nominees SDN BHD against Dato'ParamCumaraswamyin the High Court
of Kuala Lumpur.
The Legal Counsel availshimselfof this opportu'nityto assurethe
PermanentRepresentativeof Malaysiato the UnitedNationsof his highest
1 I
consideration.
25 November1997 'THESECRETARY-GENERAL
21 November 1997
To Whom It Mav Concern
In connectionwith the Civil Suit (KL High Court
Suit No 51-23-67 of 1996) by Insas Berhad and
MegapolitanNominees SDN BHD against'DatolParam
Cumaraswamy,the Secretary-General of the United
Nationshereby notifiesthe competentauthoritiesof
Malaysiathat Datol Param Cumaraswamy,national of
Malaysia,is the Special Rapporteur on the
Independenceof Judges and Lawyersof the United
e -NationsCommission onHuman Rights. In this
capacity,Datol Cumaraswamyis entitledto the
privilegesand immunitiesaccordedto experts
performingmissions for the United Nations under
ArticlesVI and VII of the Conventionon the
Privilegesand Immunitiesof the United Nations to . '
which Malaysia has been a party since 28 October 1957
without anyreservation.
In accordancewith section 22 of Article VI of
the Convention,Irexperts..p .erformingmissions. for
the United Nations shallbe accordedsuch privileges
and immunitiesas are necessaryfor the independent
exerciseof their functions. ..It. Section 22 (b) of
the Conventionfurtherprovidesthat "they shall be
accorded,in respect of words spoken or written and
acts done by them in the courseof the performanceof
their mission, immunity fromlegal processof every
kindrr. As such, the Special Rapporteur on the Independence of Judges and Lawyers,is immune from
legalprocess of every kind in respect ofwords
spokenor written and acts done by him in the course
of the performanceof his mission.
The secretary-~eneral has determinedthat the
words which constitutethe basis of plaintiffs'
complaintin this case were spokenby the Special
1 1 Rapporteurin the courseof his mission. The
Secretary-Generalthereforemaintainsthat Dato'
PararnCumaraswamy isimmunefrom legalprocess with
respectthereto.
Under Section 34 of the Convention,the
Governmentof Malaysiahas a legalobligationto "be
- .in a position under its own law to give effect to the
term's ofthis Conventionu. The Secretary-General of
the United Nations therefore requests the competent
Malaysianauthoritiesto extend toDator Param
Cumaraswamy theprivilegesand immunities,courtesies
and facilitiesto whichhe is entitledunder the
Conventionon"the Privilegesand Immunitiesof the
Kdfi A. Annan SHOOK LIN - -.-
PEADVOCATES 6 S0UCrrOR.s ENGClsf4
€.ENPATENBEhDAFTA.& EJECIPDAQANCAN
uEG1SsflPATENTAGENTS TRADEMARKAG.NTS
NOTARA W
QOT~~YruerJc.
-fiLE*aNCW) HS m'lmu~ [email protected]~, K*WATwy
L-
p..ZQIh.c~a.cr .eG2wm
Zob-rgvcu :~E:z?~ ~/cD~~oLoG/~~/Pc/~ Jravember 27, 1997
~nr.m"wa McN.q~P~rrRL*~au03ws ~~EWRENCCUU,.,PES,
u-rplo
)CYnLI*ly#*kC Arif gstua Hakim Negara
-4m-A W*I
. v - ~ ~ ~ ~ OfhMalaysia)ble mief just$cl! KJLR&&.x
nwvmlr,,
-- *.a...-,IL*(unaaji Mohd Eus~ft bin c3in
JO.mUT*WQoo khagianPersRamsnaa
--~-4-II 'anguan Sultan Abdql samad
-YOL!K rfalan Raja
PL*U=UI s0506 Xuala ~~mgur
YCI(14IcI- .. -
Yang Amat Arif,
--
Oederal Court Ezlapsia
Civil A~glication no,oeb86-lg97(~1
(court of APge+? Malgysia
Civil Appeal No.V-7-02-323-lg97)
o+re ' hd~aswmy .. App.?i~&-~t
Ailad
--- -----..I-------S & ____L . gesm,g,ats
we ere o r the ~rP~iCEni ,iz
the above m~tter.
h
6. Wish to ~PPL~
L.ient's appLacation for an early hearing og our
bnere are pending three (1) other ong~=tse bas~dds that
Same would be depo&de;lf on the outcome of
this case. The suits ..
(C) xua13 LLzmpur High Court
Civil Suit ~~.fii-23-67-96
Jh6as Ber.ila? and Anor Y.
' J'a=aa Cqmareswamy 3. Similarapplications to strikeout, dismiss
or pecrnanentiy st37 the actions art pendin? Ir, suits
(81 acd {b) ?&+reas we ar+ is the prGzess of obtainihg
Isava to enter coc8itioaal appearance2n4 'ther~,aStes
will aggLp to file a sinilarapplication r'orsuit [c)..
4. ALL ths abave szits arise out of the same
r~fitbs. XntercationalbliConmercialheLitigation 2rnacrazine,
??hick said articls is also th* sk'frrject matterof tne
Lrstant agpllcationfor leavsto aspeal to the Fsderal
Court. Ths the@ !31 ~t!i?l:suitsme~tioned above also
involva the issue of cur client's entitlement to
imi?nity. mder Section 22(b) 02 the Cunvsntloncn the
Pritrilccges =?id T~mu~itiescf t5e Crzited 1Tstians ("UR
Coairontionl')' an4 ths sane cionestic lgqislatian and
MaLaysia'sobLigatiass urdsr the U?:Ccnvectian.
5, By raasoa of ti?%.ei;~~t?mstan~d_s as afor$-
stat&, we are cf the view tSat it is desirable that an
early date, should be ;r;'ixe9sr the appLication fer
feave . ?!oreb-ger,'ti?€ issues invalve4 il;the prop~sed.
appeal are of gzeat important% as they iav~lvs domestic
legislativa as well ai i%t,a~nbti~~al convsntian acd
Malagsials int@roationai ob1ll;ztions urzdsr tbe UN
Coz-gention -
6, ?ox all the zea~cns zs stated above, ye
clieztt'sl~p3iicgtcioa.at zr? ltazlpdate be %i:.;ed,for our
Yours faithfully,
.........- . . SHOOK If8& BOK -
- C.C. Client
:c.c. MessxsV, Siva & Pzrtners
4; (..$: ~~P/~/lCt8/96!
(BY Ii=mf Statementbythe UnitedNationsHigh CommissionerforHumanRights,Mrs.Mary
Robinson,on theimportanceof the independenceof SpecialRapporteursand
similar mechanismsofthe CommissiononHumanRights
"Wehavejusm tarkedthe beginning Human RightsYearleadinguptothecommemoration on 10
December1998 ofthe50thanniversarvoftheadoptionoftheUniversal DeclarationfHuman Rights.
An important focuofthisyearwilbedefendingandprotectingtheachievementsof theUnited Nations
humanrightsprogramme.
AkeymechanismdevelopedbytheUnitedNations overtheyearsforthepromotionandprotectionof
human.rightsisthesystemof fact-findghroughindependentexpertsdesignated eithrsspecial
rapporteursor membersof workinggroups.Theseexpertsarechargedwithcarefullyandysing
allegationsohuman rightsviolatioandGovenunentinformationandinformingtheinternational
' communityoftheirfindingsandmaking pertinentrecommendations.
- overtheyearsthecrucialvalueoftheseproceduresto savinhuman livesandhelpingresolveserious
situations of violatsasbeenfullyacknowledged.TheWorldConferen onHuman Ri~hts
recognizedthe importanceftheseproceduresand calledforthepreservation astrengthenhg.
Duringthecominy gear,Iwillbegivingspecialattentitothisobjective. .
Xormationwhichisessentialinhumanmmrightspolicmaking?theexpertsofthespecialprocedures
systemmust besecureinenjoyingtheprivileges andimmuniti dustothemasexpertsonmissionfor
theUnitedNations.MemberStateshave agreedtothisbyrawg the 1946Conventiononthe
PrivilegesandmmuuitiesoftheUnited NationsT. heInternationCour ofJusticereaffirmethese
principlesnits1989AdvisoryOpinionrelatingto aMember State'sbligationundertheConventionto
ensurefreedomofmovementtoaUnitedNationsSpecialRapporteur,Mr.DumitruMazilu.
Thescrupulousrespect foheserightsbyMemberStatesisessentialandIwish tocallonallStatesto
doso My. TheSecretary-GenerailsnowdiscussingwiththeGovernmentofMalaysiaapplication of
the Conventionnrelatioto Mr.ParamCurnaraswamyS , wialRaDmrteu r ntheIndependenceof
asakeycomponentof internationallw."vernmenttoimplementfullytheprovisionsofthi:Convention-. ., -. . ..-..- .. . . ----. ..-.-..- U "U- '.1'1
_- I 0
I
NATIONS 'enPTJiE S UNITED NATIONS
HATJT ~O~~ISSAR~T am PROITS G~E L~ROM~IE EIGH COM~SSIONER FOR HUMAN RIGFITS
FdSsdcsNm'ons
CK-1211CiElGV10
Geneva, 2 October 1998
Dear Secretary-General,
Further to our discussion on22 September 1998, I wouldlike to highlightrhefollowing
human righrsissues which, I bdiwe, may be ofrelevance insofaras the Cumaraswamycase now
before the htemaciondl Court of.iusticeis concerned.
InMarch 1994,the Codsion on Human Rights in,resolution 1994/41 noted both the
increasing frequency of attackson the independence ofjudges, lawyersand court officials and the
linkthat exists betweenthe wealceningof safeguardsfor thejudiciary and lawy'rs and the gravity and
frequency ofviolations of humacirights. The Commissionrequestedthe C' 1of the Commission
to appoint, for a period othee years,a specialrapporteur whosemaddate would consist of inquiring
into any substantialallegationstransmitted to him or her and report his or her conclusionsthereon;
identifjri- and recording notonRy attackson the independenceofthejudiciary, lawyers and courr.
officials but also progress achieveinprotecting andenhancjngtheir independence, andmake
concrete recommendations inclxldingthe provision of advisory services or teefinicalassistance when
they were requested by the Sta?e concerned; and studying, for thepurpose.of mag proposals,
imporcantand topicd questions ofprinciple with a view toprotectingand enhancing the independence
of thejudiciary and lawyers.
The Chairman of the Commissionon Human Rightsappointed Mr. Param Curnaraswamy
as Special Rapporteur on the Independence of Judges andLawyers in aletter dated2 April 1994.
Mr. Cwmaraswamyis one of some 40 Special Rapporteurs whoare aypointed by the .
Commissionon fiuman Rights. V~eirmandates axeeither countryspecific orthematic. Special
Rappur~t~zr.asre not paid salaries, althougtheyreceive expenseswhen they travel, together with
research and adminiistrativesupportfrom the Office of the UnitedNationsHigh Commissionerfor
Human Rights in Geneva. It is {TFimportance to recall that membersof other UN comminees such as
the Human Right Csommittee, the Committee on the EliminationofRacial Discrimination and the
Committee on he Elimination of All Forms of Disc-ation AgainstWomen, to name only a few,
also serve ina.personal capaciQ5not as rqresenratives of States,and areexperts on mission within
themeanbg of the Convention. Mr. Cumamswamy'smandateis clearly a fundamental one which
encompasses studying and monitoring the implementationofsomeof the non-derogableprovisions in
United Nations humanright ,nstnunents.
The Secretary-General
United Nations
New York The Commission has routinely expressedappreciation at the determination of the Special
Rapporteur to achievas wide disseminatioas possible of inforfmtbn aboutpertinent standards.
Additionally,it.shouldbe poinred outthatismore common thannor for Special Rapporteurs to
speak to theress about rnatrepertainingto their iwestigauons, therebykeepingtbe general public
informed of their work. This includesprixwtional activitiessuch as acceptance of invitations to speak
abouttheir mandate at conferences, seminars and fom all overfheworldIn connection with such
appearances, Specialapporterus have attimesbeen interviewedby the media.
In the report of the fowthannual meeting of SpecialRapporteurs/Representatives/Experts
and Chairmen ofWorking Groups of the CommissiononHuman Right andthe Advisory Services
Programme, the participants re&'inned the general principles andcrthatguide their work
(E/CN. 4/1998/45, para.71). .-Accordingto these principles the "SpecialRapporteurs are agents not
of confidential bofpublic procedures. Their reports are public. Hencetheir relwithnthepress
are governedby he basicprinciple otransparency."In practice,.SpecialRapporteursfrequently
speak tochepress throughout the course theyearto answerqueries concerningtheir mandates and
activities. Pressverageis, indeed,an effectivearayof raisingawareneofan expert's concerns.
However,if theseexperts wereto be subjectedto legal proceedingsindomestic courts, therewould
be a chilling emct on their abilityto speak ourand report on violations whichwould neces.arily
impede their abilitytcarryout chemandates to whichtheyhavebeen entrusCedby the Commission
on Human Rights S.bjectingorkcindependent expert to legalproceedinina domestic court would
seriouslyhinderallexperts of the Coxknksion oHuman Right from wrying outindependent and
impartiajlnvestigationsfor gar of being subjected to fiisuitsin domestic courts.
The SpecialRapporteur on Independence ofJudgesandLawyershas carried outseveral
country mission which so have included Peru, Colombia, Belgium,andthe United Kingdom and
Northern Ireland, wita view toenquiriin nto allegedattackson the independence ofjudges and .
lawyers.The SpecialRapporteur has submittedfour generalreports andfour additional reports on his
corntry visits to the Commissbtl on Human Rights sincehis.appointmein 1994.
It is of importance to underline that the ~o&nhsioHuman Rights renewed the Special
Rapporteur's mandate foran addjtiondlthree yeas at its fifly-fourthsessionheld in Genevain April
1997.Atthe time of the renewal of the SpecialRapporteur's mandate, the Commission awqe of
the lawsuits againstthe Special ]Rapporteurbefore the Malaysiancourts-Hefiirsappointment
could be consideredan endorsementby the Commjssion ofthe SpecialRapporteur's working
methods and interpretatioofhis mandate, includinmaking public statementinthe form of
interviews.
I 1 would also like to~loirltout inathe Madlucase, the Courtexplicitly rejected
Romania'sargument that "inrhecountry ofwhich he is a national aincowltries other than the
country to which hissent on nlission, an expert enprivilegesandjmxnunirie osnly in respect of
actualactivitiesspoken or written which he perfiinconnectionwith hismission."l'hcCourt
confirmedtha "expertson missions enjoy the privileges andimmunitprovided for under the
Cowention in their relations with the Stofwhich theyarenarionalsor onthe territoq of which
they reside," unless a reservation hasbeen validlyinthirsespectby the state concerned.
Consequently,the Special Rapporteur, whosa citizen ofMalaysiaandresid insKualaLump-, is
entitletoimmd@ from lega lrocess of every ad jnthecourts ofMalaysiain hiscapacity as an
expert on missioforthe UnitedNations. Malaysiahas not made any reservatiin thirespect. '
me u&cceptable consequence of the Malaysian courts' rulings istha .heSpecial
Rapporteur is ordered to defend himself on the merits of the suitsfiled aghimsbefortehe courts
of Malaysia and that the Malaysian courts have'arrogated to themselves the power to determine the
SpecialRapporteur's capacity and the scope of his mission or mandate. It has to be further underlined
chatsince the mandate hasbeen ~brmulatedand established by the Commissionon Human Rights, it
is for the Secretary-General to dace.ermehecher aperson seeking theprotection of the immunities
provided for inthe General Conlrentionfirw ithinthe classof persons that the Conventionseeks to
protectin light of the mandate givenby the Commission onHumanRight andwhether such person
spoke words in the course of his mission for the United NatiBys.havingbeen ordered by the
Malaysiancourts to defend his case at ful tlial,the SpecialRapporteur has effectivelybeen denied
the "immunityfrom legal process of every kind"to which he is entitledasan expert on rnissionunder
Section 22@) of the General Convention.
Itisessential to ensure thallSpecial Rapporteurs, asexperts on &ion for theUnited
Nations, enjoy certain privileges and immunities, especiallyunityfkomlegalprocess of every
kindi,n order to promote the independent exercise of the functions enuustothem. Moreover, in
view of their independence, is important that there be consistentprotection of experts on mission
regardless of nationality. Thedinglawsuitsin Malaysian courts havea direct andnegative effect
on the independence of expertsin :is case of the SpecialRapporteuron the Independence of Judges
and Lawyers,prho, while still being in office, has bcalledto account fohis statementsin .is
national courts fhis words spokea ns expert on mission. Theprotectionby way of immunity ,f
i )
the Special Rapporteur's freedom of officialspeech is, therefatissue.
The actions againstthsSpecialRapporteur on the .Independenceof Judges and Lawyers
raise serious concerns about aider pattern of interferenwit he work of allSpecialRapporteurs,
Representatives, independent experts and working groups of the CommissiononHuman Whts as
well as other United Nations human rights mechanisms.The specialprocedures of theCommission
onHumanRightsplay a crucial role inmonitoring human rightssituations aroundthe world, calling, '
public attention to humanrigha violationand preventing their f&r occurrence. The Commission
on Human Right bas a responsibility to ensure thatthe specialproceduresguarantee r=xpertsfull
freedom and independence in givine gffectto their respective mandates,guidedby relevant
resolutions and established practices arhongSpecial Rapporteurs andindependent expertInorder to
carry out theirorkindependenu dd effectively,Yheiimmuniity,as United Nationes xperts must
be fullyprotected.
What is atstake inrkd5case is notjust the SpecialRapporteur's interest andindependence
but that of ihe entire WNhuman rights system. Over the pasdecades, the United Nationhas
carefully developeda mechanism for the promotion and protection of humanrights,which is
essentially a system of fact-- through independent experts designatedejtherasspecial
rapporteur. or members of woriiinggroups. These expea asareiven a mandateby importantbodies
I I
such as the GcneraJ Assembly, the Commission on Human.Rights,the Sub-Commission on the
Prevention of Discrimination ad Protection of Minorities, or the Special Commission investigating
Iraq,and are entrusted with preparing reports, conducting invest5gationsor finand establiihing
facts. They play animportant role in informit ngeinternationalcomrnuni~ of their findings and
make pertinent recommendations. The specialrapporteurs appointedby the Commission on Human
I Rights havea special responsibility to analyze,and report on, allegationhuman rights violations
and government information relovantthereto. This mechanism, which, togethewith theincreased
UN fieldpresence in human rightshasgrown exponentially and has served to savehuman lives and
resolve serious situations of vjolations.
Inorder to guarantee the independence and impartialityof the informatioand analysis
provided by expens on mission that is essentialto humanrights policmaking, the expertsmust be
ableto count on rhe privileges and immunities due to them asexperts on mission forthe United
i - Nations. . Finally, threatening &I:immunity of one expert constitutes an attack on the entire United
Nations systeo mf expertson mission employedin the oorganization's human rights mechanism. What
, is more, the decisions of the Malaysiancourts not only affectthe immunities of experts on mission
but also ofthe United NationX s, l'N off~cials and other persons worljngfor the organization. Indeed,
if these decisions are not corrected, they could have a chi- effect on the ab'ity of independent
experts to speakour, in complereindependence andimpartiality, against violations of international
human rightsstandards.
Yourssincerely,
... . . . ,. . . . ...........
. . . . . . ..-. . ., . :.. ... . . . . .... .............. ; : ..,--:
.... ... .... '. . I......'..,', ' ' .. . . . . ;. . ;.. .. : . * I I ' ....,..s , . . ;l: .. . ...,. y.,:.; ! !
" -. .... . ' : . ., . . I , , ,. . ... 0. ... .( , .. ? . ...... ... ,,::::.
. . , ., s....... . . .- . . . ............... ... .,.o . ..., .. .i'. I . . ,. ..... ..... .... .........:..! ..........I' .............;; . :.;,;:.:
. . , . ... , . ,, . r : . .,. , ... ... , .I .'",:., ::'YM TASJ SRI. LAMlN
YM TAN SH WAN ADNAP; ,
YA DATY)' DR. WYi(ARIA
We thank both counsel forhaving assistedthis Court for
1% days. . .
We areunanimous inourfindingthat there & no fault in
the groundt of Judgment of Cart ofAppeal and Iii'gh Court. We are
not dealing witha sovereign, ox a full fledged diplcmkt ..be is
someonecaned a Rapporteur who has to act, inthe preserit case,
within mandate of, in laymen's terns, an unpaid, part-tim providler
of information, as against'thois cases cited toby counsel. ' Those
cases axe not relevant because thy are caseswith sovereign,
diplomats. He is not anywhere near that- he has a mandate.
In the circumstances of this case, theapplication must be
dismissed and dismissed with msts. :...". ..:$-i3-199815:3? P. 0.1
...,..y~' /.a 701s
, .;J i.
..-;..'y- WlSMA PUW,
. .,.J JUZMENTERlAN LUAR NEGERl MALAYSIA.
tMlffkY'ROF FDRElGNA FFAlRS MAU YSII.
,f 50602KUALA LUMPUR
Tclcpmnrwtsun FCTL~xllau WHPUR*
7clefoil: 03-24RHURR
Fa: 03-2424551
-
BY FAX
Auj.Tw:
Mr LYves FortlerC,,C,,Q.C.
Oghy Rsnault
1981Mcglll Cnlw Avenue
Su'rte7100
Mwtbeal,
Quebec
Canada
!i% No: (514)286 -5474
y,:
/
I-
1wlah toacknm#ladg a ltbthanksreaelptofyour faxdated I1 March I998 en
2. kt me alsasaythatit was a pkrs~ure rn&.ng youIn Kuala Lumpur
i I ..
mntly. We arelndd appwclatfveofthe llsffoorthe Samtary Oenaml of
theUnM Natjonainsendhg you as hisSpecialEnvcrytodiscusswith USan the
Pamm Cumarasvvam Cyase, We are gratefulfirthe views that you had .:
I conueyet dous and we haveako bjrlcanate blthe rnodalttythatyouhad
proposed forthe resolutio07theCase. Infad,ywr visihas mnblbutcd mum
U3
toour betberundemtandlw of thewn'aus issuesInvalvwlI-hopethat.IlKW~8,ff --,
:a
hasdm enlQWmd you dthe Wayaian peresptlo nn ihlssuqect, -
W
I 3. 1am pleasedto informyouwe are nw g~ng veryseriouscuttsi-on -
I to thevim and recommendatlms thatyou had mnveyed tous inour mutual C3
I -rC
I .-rsh for an arnlmblesolutinn- At the same tlme, we am arploling the :-
I paasibilitOfwhetherwemlghtyet be able0 findan out-of-eourettlement fa
Ithis&-. Effortinthieregarare presentunds~~y and &a UN is also
awareofthis.
4, we arealsoawam thatwhenthe54thSessionofUN CcrmrnkislMn
HumanRights beginsnextweelcinGeneva His likethatquestionsmaybe
ramkeodnthe PC Case.Our dslegatihasbeen brjdedtnre~pondto these
appropriately. A
5. We would lhtothmk youagainforyourkinefforonthismatter.
(DataN. Pmeswamn)
DeputySecmtar y eneraII
MlnlstyofForeigAffa'i The hfthmeeting of Special~~ppo~eurslReprescntativesa lEdxpeaispersons of
Working Groups of the Commission on Human Rights andof the Advisory Services
Programmes, held inGeneva &om 26 to29 May 1998, expresses serious concern about the
judicial harassment meted oro Mr. Param Cumaramamy, the Special Rapporteur on the
independenceofjudges and 1a.vqers.
The participants were disappointed that, despite the continuous appeals during the
courseofthe lastyear,the 1tgs.lproceedings involvingciviactionin the -;lvfalaycourts
againsMr. Cumaraswarny, had not been rerrninated. Indeed, the MalaysiaHigh Court had
( 1ignored the assertionby the Secretary-General ofthe UniNation osf immunity attaching to
the actthat arthe subjectof the proceedings. Amcle VI,section 22 of the Convention on
Privileges anImmuniti efthe United Nations lays dam that experison mission enjoy
immunity f?omlegal process of everykind in "respecof words spoken or writte.n.. in the
coursoefthe performance of tlnairmission." Thmeetin g elcomes the determinationof the
Secretary-General, as already wged by the participattlast year'seeting t,at a dispute
now existbetween the United NationsandMalaysia, within the meaning of Article VEQ,
sectio30 of theConvention
The participantsconsid.er that the Malaysian court decision to pennit continuofion
the proceedings represents r:only a legally indefensiand oppressive attackagainstbfr.
Cuinarasrrarnybut a challerye to the status of the UnitedNations as a whitsofEzcialsand
itexperts onmission i,cludirtg the mechanisms established by the Commission Human
Rights,as approved by the E.:onomic and Social Coundl.
They therefore respec:i,fbllyrequest the Secretary-General to take immediate and
, necessary measures to have .ike dispure promptly referred, pursuant to Article Vm, s30,n
to the International Court oTfrlstice for conclusive'disposition.
They request theChairperson of the Meeting tobrin this statement tothe attention of
theSecretary-General,theHiy& Commissioner for Human Rights, the Legal Counsel and the
Chairman of the Commission on Human Rights, and to make it public.RCFEACNCE.
18 June 199.8
Dear AmbassadorHasmy,
We are informed that,by his letter of 12 June 1998,
Dato' Parameswaran, Deputy Secretary General I1 of the
Fortierthat while the Cumaraswamyfcase is still under active
considerationby the relevantMalaysianauthorities, it is
expected that a decision on 'thematter would be made very
shortly. The Deputy Secretary General adds that the
Government of Malaysia remainscommitted in its desire to
find an amicable solution to this issue. The Secretary-
General is equally committedto findingsuch a solution.
However, the Secretary-Generalis under considerable
pressure from the international human rights and legal
communityto have this matter resolved. It is clear that the
Secretary-Generalcannot avoidthe issue, should it remain
without anegotiated settlement,during theupcoming session
1998.e EcAccordingly, unless the Government of Malaysia July
formallyresponds to the draft settlementagreement, we will
have toresort to the International Courtof Justice and will
thus proceed to submit to you the questions we intend to
present to the Economic and Social Council to request an
advisoryopinion.
Yours sjncerely,
Assistantsecretary-~eneral
for Legal Affairs
H.E. Mr. Hasmy Agam
PsrmanentRepresentativeof Malaysia
to the United Nations
New York UnitedNations
Economic and Social Council Distr.: General
26 July 1998
Original: English
- --- - - -
Substantive session of 1998
NewYork, 6-3 1July 1998
( jendaitem 14 (g) ..,
SociaIandhumanrights questions: human rights
PrivilegesandimmunitiesoftheSpecialRapporteur ofthe
Commission onHumanRightsontheindependence ofjudges
andlawyers -
Note by the Secretary-General
1. In its resolution A (I) of 13 February 1946, the "(b) in'respect of words spoken or written and acts
GeneralAssemblyadopted,pursuant toArticle105(3) of the donebytheminthe course ofthe performanceoftheir
Charter of the United Nations, the Convention on the mission,immunityfromlegalprocess ofanykind.This
Privileges and Immunities of the United Nations (the immunity from legal process shall continue to be
Convention).Since then,37 Member States havebecome accorded notwithstanding thatthepersons concerned
parties to the Convention, and its provisions have been are no longer employed on missions for the United
incorporatedbyreferenceinto manyhundreds of agreements Nations."
relatingtotheheadquartersorseats oftheUnited Nationsand
'*sorgans,and to activities carried out by the OrganizationIn itsdvisoryOpinion of 14December 1989,,onthe
.,nearlyeverycountryof theworld. "Applicability ofArticle VI, Section of the Convention
onthePrivilegesandImmunitiesof theUnited Nations" (the
2. That Convention is,inter aliadesigned to protect so-called"Maziloucase"), the International CourtofJustice
various categoriesofpersons, including"Experts onMissionld that a Special Rapporteur of the Subcommission on
for the United Nations", from all types of interference byentionof Discriminationand Protection of Minoritiesof
nationalauthorities.articular,Section22 (b) ofArticle VIhe CommissiononHuman Rightiwas an"expertonmission"
ofthe Conventionprovides: withinthe meaningofArticle VI of the Convention.
Section22:"Experts(otherthan officialscomingwithin4. The Commission on HumanRights, by its resolution
the scope of Article V) performing missions for the994141of4 March 1994, endorsedby the Economicand
UnitedNations shall be accorded such privileges andocial Council in its decision 19941251 of 22 July 1994,
immunities as are necessary for the independent appointed Dato'Param Cuma~aswamy,a Malaysianjurist,
exercise of their functions during the period of theireCommission'sSpecialRapporteurontheIndependence
missions, including time spent on journeys in of Judges and Lawyers. His mandate consists of tasks
including,interaliato inquire into substantial allegations
connectionwiththeirmissions. Inparticular theyshalconcerning, and to identify and record attacks on, the
be accorded:
independenceofthejudiciary,lawyersandcourtofficials.Mr.
Cerfj,fied true copy
98-21975(E) 290796 Cur.nnr~lswarlnlyssubmittedfourreports to the Conin~ission 7. Afteradraftof a certificatethatthehlinistcr forForeign
on the execution of his mandate: ElCN.4/1995/39, Affairsproposedto filewiththetrialcourthadbeendiscussed
.ElCN.411996137,EICN.4/1997/32 and EICN.411998/39. withrepresentativesof the Office of Legal Affairs,whohad
After the third reportcontaining a section on the litigationindicatedthat the draft set out the immunities of theSpecial
pending against him in the Malaysian civil courts, the Rapporteur incompletely and inadequately, the Minister
Commissionatitsfifty-fourthsession,inApril 1997,renewed nevertheless on 12 March 1997 filed the certificate in the
his mandateforanadditional three years. formoriginallyproposed; in particular the finalsentenceof
5. In November 1995 the Special Rapporteur gave an that certificateineffectinvited the trial court to determineat
interview to International Contmercial Litigation, a itsowndiscretion whether the immunityapplied, by stating
that this was the case "only in respect of words spoken or
nmgazinepublishedinthe United Kingdomof GreatBritain writtenandactsdonebyhiminthecourseofthe performance
and NorthemIrelandbutcirculatedalsoinMalaysia,in which
hecommentedoncertainlitigationsthat had been carriedout of his mission" (emphasis added). 111 spite of the
:.-Malaysiancourts.Asaresultofanarticle published on the representations that had been made by the Office ofLegal
( ?is of that interview, two commercial companies in Affairs,the certificate failed to refer in any way tothe note
thattheSecretary-General hadissued a few daysearlier and
Malaysiaassertedthatthe said article contained defamatory thathad inthemeantimebeen filed with the court,nor did it
wordsthat had"broughtthemintopublic scandal, odiumand indicatethatinthisrespect,i.e.in decidingwhetherparticular
contempt". Eachcompanyfiledasuitagainsthim fordamages
amountingto M$30million(approximatelyUS$ 12million* -wordsoractsofanexpertfellwithinthescopeof his mission,
each), "includingexemplarydamagesfor slander". thedeterminationcould exclusivelybe madebythe Secretary-
General, andthat such determination had conclusive effect
6. Acting onbehalfof the Secretary-General, theLegal andthereforehadtobe acceptedassuchby the court. In spite
Counsel consideredthecircumstances of the interview and ' ofrepeated requests by the Legal Counsel, the Ministerfor
ofthecontrovertedpassageo sfthearticleand determinedthat
Dato' ParamCumaraswamywas interviewed in his official Foreign Affairs refused to amend his certificate or to
supplementit in the manner urgedby the UnitedNations.
capacity asSpecialRapporteuronthe IndependenceofJudges 8. On28June 1997,the competenjtudge oftheMalaysian
and Lawyers,that thearticle clearly referred to his United
Nations capacityand to the Special Rapporteur's United HighCourtforKualaLumpurconcludedthatshewas "unable
Nationsglobalmandatetoinvestigateallegations concerning to hold that the Defendant is absolutely protected by the
the independence of the judiciary, and that the quoted immunityheclaims",inpart because she consideredthat the
Secretary-General's note wams erely"an opinion" with scant
passagesrelated tosuchallegations.On 15January 1997,the probativevalueandnobinding forceupon the court andthat
LegalCounseli,nanoteverbale addressed to the Permanent the MinisterforForeign Affairs' certificate "would appear
RepresentativeofMalaysiato theUnited Nations, therefore
"requestedthecompetentMalaysianauthorities to promptly to be no more than a bland statement as to a stse cdfact
I _)vise the Malaysiancourts of the Special Rapporteur's pertainingtotheDefendant's statusandmandateas a Special
immunityfromlegalprocess" withrespect to thatparticular Rapporteurandappearstohaveroomforinterpretation". The
Court ordered that the Special Rapporteur's motion be
complaint.On 20January1997,theSpecial Rapporteur filed dismissedwithcosts, that costs be taxed and paid forthwith
anapplicationin theHigh Court ofKuala Lumpur(the trial byhimandthathe file and serve his defence within 14days.
courtinwhichthesaidsuithadbeenfiledj toset aside andlor
strike outthe Plaintiffs'writ, on the ground that the words On 8 July, the Court of Appeal dismissed Mr.
thatwerethe subjectofthe suits had been spoken byhim in Cumaraswamy'smotion for a stay of execution.
: thecourseofperforminghis mission for the UnitedNations 9. On 30 June and 7 July 1997, the Legal Counsel
as Special Rapporteuron the Independence of Judges and thereupon sent notes verbales to the Permanent
Lawyers.The Secretary-Generalissued a note on 7 March RepresentativeofMalaysia,andalso held meetings with him
1997confirmingthat"the wordswhich constitute thebasis and his Deputy. In the latter note, the Legal Counsel,
of plaintiffs' complaint in this case were spoken by the interalia, called onthe MalaysianGovemment to intervene
SpecialRapporteurinthe course of hismission" andthat the in the currentproceedings so that the burden ofany further
Secretary-General "therefore maintains that Dato' Param defence, including any expenses and taxed costs resulting
Cumaraswamyis immune from legalprocess with respect therefrom, be assumed by .the Govemment; to hold
thereto".TheSpecialRapporteurfiledthis note in support of Mr.Cumaraswamyharmlessinrespect ofthe expenseshehad
his above-mentionedapplication. alreadyincurredorthatwerebeingtaxed to himin respect of
theproceedingsso far;and,soastoprevent the accumulation of additional expcnses and costs and the further need to Convention.h'oncthelesson 19February 1998, t11cFciit-r;~l
submit a defence until the matter of his immunity was Court of Malaysia denied Mr. Culnaraswamy's application
definitively resolved between the United Nations and tlle forleave to appeal stating thathe is neither a sovereign nor
Government, to support a motion to have the High Court a full-fledged diplomat but merely "an unpaid, part-time
proceedingsstayeduntilsuch resolution. The LegalCounsel provider ofinformation".
referred to the provisions for thesettlement of differences 14. TheSecretary-GeneralthenappointedaSpecial
arisingoutof theinterpretationand application ofthe 1946 Maitre Yves FortierofCanada, who,on26 and 27 February
Conventionthatmightarise between the Organizationanda
Member State, which are set out in Section 30 of the gg8,undertookanofficialvisittoKualaLumpurtoreach an
agreement with the Government of Malaysia on a joint
Convention,andindicatedthatifthe Governmentdecidedthat submissionto the InternationalCourtofJustice. Following
it cannotordoesnotwish toprotect andto hold harmlessthe thatvisit,on13~~~~h1998the~ i ~ i ~ ~ forF~oreign Affairs
Special Rapporteur in the indicated manner, a difference of~a~aysiainfomed theSecretary-General'sspecial E~~~~
withinthemeaningof those provisionsmight be considered of his Government,s desire to reach an out-of-court
( lavearisenbet'veentheOrganizationand the Go.vernment
settlement. aneffortto reach such a settlement, the Office
ofMalaysia. ofLegalAffairsproposed theterms ofsuch a settlementon
10. Section30 ofthe Conventionprovides as follows: 23March1998and adraft settlement agreement on26 May
1998. Althoughthe Government of Malaysia succeededin
Section 30: "All differences arising out of the. .
interpretationorapplication ofthepresent convention staying proceedings in the four lawsuits until September
shallbe referred to the International CourtofJustice, 1998,no iinalsettlementagreement was concluded. During
unless in anycase it is agreed by the parties to havethisperiod,theGovernmentofMalaysiainsistedthat,in order
tonegotiateasettlement,MaitreFortier must return to Kuala
recoursetoanothermodeofsettlement. Ifa difference Lumpur.WhileMaftreFomerpreferred toundertake the trip
arisesbetweentheUnitedNations on the onehandand only oncea preliminary agreeyent between the Parties had
a Memberon the otherhand, arequest shallbe made
foranadvisoryopinio;~onanylegal question involved been reached,nonetheless,based on the Prime Minister of
inaccordancewithArticle96 oftheCharterandArticle Malaysia's request that Maitre Fortier return as soon as
possible,theSecretary-Generalrequestedhis Special Envoy
65oftheStatuteoftheCourt.The opinion givenby the
Courtshall be accepted as decisive by the parties."
11. On 10 July yet another lawsuit was filed against the 15. MaitreFortierundenooka secondofficialvisitto Kuala
Lumpur,from25 to28July 1998,duringwhichhe concluded
Special Rapporteur by one the lawyers mentioned in the thatthe GovernmentofMalaysiawasnot going to participate
magazinearticle referredto inparagraph 5 above,based on eitherinsettlingthismatterorinpreparingajoint submission
precisely the same passages of theinterview and claiming
I magesinanamountofM$60 million (US% 21million).On to the current session ofthe Economic and SociarCduncil.
I1 July, theSecretary-General issueda note corresponding TheSecretary-General'sSpecialEnvoythereforeadvised that
to the one of 7 March 1997 (see para. 6 above) and also the matter should be referred to the Council to request an
advisoryopinionfromthe InternationalCourt of Justice. The
communicatedanote verbale with essentially the sametext United Nations had exhausted all efforts to reach either a
I tothePermanentRepresentativeofMalaysia withthe request negotiated settlement or a joint submission through the
1 thatitbepresented formallytothecompetentMalaysiancourt
bytheGovernment. Council to the International Court of Justice. In this
connection,the Government of Malaysiahas acknowledged
12. On23Octoberand 21November 1997, newplaintiffs theOrganization'sright to refer thematter to the Councilto
filedathirdand fourthlawsuitagainstthe Special Rapporteur request an advisoryopinion in accordance with Section 30
for M$ 100 million (US$ 40 million) and M$ 60 million ofthe Convention,advised the Secretary-General's Special
(US$ '24 million) respectively. On 27 October and 22
Envoythatthe United Nations shouldproceed to doso, and
November 1997, the Secretary-General issued identical indicatedthat,whileitwillmake its ownpresentations to the
certificates oftheSpecialRapporteur's immunity. International Court of Justice, it does not oppose the
13. on 7November 1997,the Secretary-~~~~~~aldvised submissionofthe matter to that COU~through the Council.
I thePrimeMinister ofMalaysiathat a difference might have 16. TheSecretary-Generalconsidersitmost important that '
arisen between theUnited Nations and the Governmentof the principle be accepted that it is for himself alone to
I Malaysia and about the possibili~ of resorting to the determine, with conclusive effect (except as indicated in
InternationalCourtof Justice pursuant to Section30 ofthe para. 17 below), whether a member of the staff of the
I Organizationor an cspcrt onmission has spoken or written MeetingofSpecialRapporteursfReprese~ E xpa tiandes!
wordsor perfonncdan act "in their official capacity"(in theairpersons of Working Groups of theCon~missionon
caseofofficials)or"intheperformance oftheir mission"(in Human Rightsand of the Advisory Services Programmes
thecase ofexpertson mission).Unlesssuchconclusiveeffect adopteda statemententitled the "Judicial Harassment ofa
isaccordedtohisdeterminationsin thisrespect, it willbe forSpecialRapporteur''rgingtheSecretary-Generalto refer the
nationalco~trttodetermine- and in respect of a given word mattertotheInternationalCourtofJustice pursuant toSection
or act there may be several national courts- whether an 30 of the Convention. The Secretary-General received
official or an expert, or armer official or expert, enjoysinnumerable interventions from representatives of the
immunityinrespectofhiswordsor acts.The adjudicationof internationalumanrightsandlegalcommunityreflectingthe
Unitkd Nations privileges and immunities in the national overwhelming consensusin favourof refemng the matterto
courts would be certain to have a negative effect on the the InternationalCourtof Justice.
independenceofofficials andexperts, who wouldthenhave
20. Finally, it is necessary to point out that unless the
to fear that at anytime,whether theywere still in office oGovernment ofMalaysiaacceptstheresponsibility,costs and
i ter they had left it, they could be called to account inexpenses of ensuringrespect for the Special Rapporteur's
national courts, not necessarily their ow6 %ivilIy or immunitythroughappropriateinterventions inthe Malaysian
criminally, for their words. spoken or written or acts courts, then theseconsiderable expenses might haveto be
performed as officialsor experts.
assumed bythe Organization itself as it considers that the
17. Although the decision ofthe Secretary-Generalmusf 'wordsthat constitutethe basis of the plaintiffs' complaint
thus be consideredas not su6ject to challenge in national werespoken bytheRapporteur in the course ofhis mission.
courts, it can, ofcourse, be challengedby a Government
concerned pursuantto Section 30 of the 1946 Convention 21. Asthe Organization andthe Government ofMalaysia
(quoted in para.10 above),in \vhiclicase the matter would agree that a differencehasarisen between themout of the
interpretationor application ofthe Convention andas they
bedecidedwithbinding effectby the International Courtof have beenunableto agreeonanothermodeof settlement, the
Justice. differenceshouldbe referred to the International Court of
18. It should be pointed out that Sectio23 of the 1946 Justiceinaccordancewith Section 30 ofthe Conventionand
Convention providesin respect of experts (and similarly thefollowinrequestforan advisoryopinion shouldbe made
Section20 inrespect of officials)that: in accordance withArticle 96 of the Charter ofthe United
Section23:"Privileges and immunitiesare grantedto NationsandArticle 65 of the Statute ofthe Court:
expertsin the interests of the UnitedNations andnot "Considering the difference that has arisen
forthepersonal benefit ofthe individuals themselves. between the United Nations and the 'Governmentof
TheSecretary-Generas lhallhavetheright andthe duty Malaysia with respect to the immunity,frpm,legal
, , towaivetheimmunityofanyexpertin anycase where, processofMr. Dato'ParamCumaraswamy,the United
inhisopinion,the immunitywouldimpede the course Nations Special Rapporteur of the Commission on
ofjusticeanditcanbe waived without prejudice to the Human Rights on the Independence of Judges and
interestsofthe UnitedNations." Lawyers,in respect ofcertain words spoken byhim:
Thusanyabuseoftheimmunitiesofanexpert (or anofficial) "I. Subjectonlyto Section30 ofthe Conventionon
would be prevented by theright and dutyof the Secretary- the Privileges and Immunities of the United
General to waive such immunity underthe circumstances Nations,doestheSecretary-General oftheUnited
Nationshavetheexclusive authoritytodetermine
specifiedinthose sections. ,
19. Inconnectionwiththiscase,it shouldalsobe noted that whetherwords werespoken in the courseofthe
the Secretary-Generalreceived a communication fromthe performance ofamission forthe United Nations
within the meaning of Section 22 (b) of the
Special RapporteurdRepresentativesEx anperts Convention?
Chairpersons of Working Groups of the Commission on
HumanRightsandtheAdvisoryServices Programme ofthe "2. InaccordancewithSection34 ofthe Convention,
United Nations Commission on Human Rights which oncethe Secretary-General has determined that
indicated that "underminingthe immunity accordedto one such words were spoken in the course of the
expert constitutes an attack on the entire system and performance of a mission and has decided to
maintain, or not to waive, the immunity from
institutionofUnitedNationshumanrightsspecial procedures
and mechanisms".Moreover, on29 May 1998, the Fifth legalprocess,doesthe Governmentofa Member Statcpartytothe Conventionhave anobligation
to give effect to that immunity in its natio~~nl
courts and, if failing to do so, to assume
responsibility for, and any costs, expenses and
damages arising from, any legal proceedings
brought in respect ofsuchwords?
"Pending receipt of the advisoryopinion ofthe
InternationalCourtofJustice,which shall be accepted
as decisivebytheparties,theGovernmentofMalaysia
is called upon to ensure that all judgements and
proceedingsinthis matter in the Malaysian courtsare
stayed." UnitedNations
Distr.: General
EconomicandSocialCouncil 3 August199s
Original: English
Substantive session of 1998
New York, 6-3 1July 1998
( pda item 14(g) ..,
social anhuman rights questions: human rights
Privilegesandimmunitiesof tbe SpecialRapporteur ofthe
Commission onHumanRightsontheindependence ofjudges
andlawyers
Addendum
Note'bytheSecretary-General
Inparagraph 14ofthenoteby theSecretary-General onthe privilegesand immunities
oftheSpecialRapporteurof the CommissiononHumanRightsontheindependenceofjudges
andlawyers(E/1998/94),itisreportedthatthe"GovernmentofMalaysiasucceededin staying
proceedings in the four lawsuitsuntil September 199s". In this connection,the Secretary-
General hasbeen informed thaton 1August 1998, Dato' Param Cumarasbvamywas s..ved
with a Notice of Taxation and Bill of Costs dated 28 July 1998 andsigned by the Deputy
Registrar of the Federal Court notifying him that the bill of costs ofthe Federal Court
application wouldbe assessed onptember 1998.The amountclaimed isMS310,000
(US$77,500). Onthesameday,Dato' Param Cumaraswamywas alsoservedwith aNotice
dated29 July1998andsignedbytheRegistrar ofthe CourtofAppealnotifyinghim that..he
Plaintiff's billofcostswouldbe assessed on 4 September 1998.The amountclaimedin that
bill is M$550,0(USS 137,500).
certified truecopy
1998
98-22566 (E) 030898 UNITED
NATSONS
@ Economic and Social Council Distr.
&- & LIMITED
-7-T-
~/1998/L.49/Rev.l
5 August 1998
ORXGINAL: ENGLISH
( kubstantivesession of 1998 ,,*
New York, 6-31 July 1998
Agenda iten 14(g)
SOCIALAND HUMAN RIGHTS QUESTIONS:KUMAN RIGHTS
Draft decision submittedbv the vice-presidentof the
Council.Mr. Pnwarul Chowdhurv (Banqladesh)on the
basis of informalconsultations ,
The Economicand Social Council,
Havins consideredthe note by the Secretary-Generaon the privilegesand
immunities ofthe Special Rapporteurof the omm missionnHuman Rights on the
independence ofjudges and lawyerstZ
Considerinq thaa difference has risenbetweenthe United Nations and the
I Governmentof Malaysia,within the neaningof section30 of the ~onventio;015
'thePrivileges andImmunitiesof the United Nationswith respect to the
immunityfrom legal process of Datol Param Cuinaraswa,he Special Rapporteur
of theComniissionon Human Rights on the independence ofjudges and lavryers,
. .
RecallinqGeneral Assembly resolutio89 (1)of 11 December 1946,
the Charterof the UnitedNations andin accordancewith General B-ssembly, of
resolution 89(I),an advisoryopinion from the ~nternationalCourt of Justice
on the legalquesticnof the applicabilityof articleVI, section 22,of the
Conventionon the Privilegesand hmunities of the United Nations in the case of
Dato' Param Cumaraswamyas SpecialRa2porteurof the Commissionon Human Rights
on the independenceof judges and lawyers,takinginto account the circumstances
set out inparagraphs 1 to15 of the noteby the secretary-G%neralIand on the
legal obligationsof Malaysia int"1s case;
'38-2286(El 060898
I11111is1111IUIII11IB1IS! NewYork, NY, 6 August1998~/1998/~.4?/Re.~..
English
Page'2
2. 'Calls upon the Government of Malaysia tc ensure that all judgements
and proceedings in this matter in the Malaysian courts are stayed pending
receipt of the advisory opinionof the International Courtof Justice, which
shall be accepted as decisive by the parties..'- I . OF :THE UNITED NAT1,QNN
....
.. ..
-. Publish#]. foTHE UNITED NATIOPJlS
bg HIS MAJESTY'S ~TATIONERY OFFICE
. . LONDON --- I946 PRIVILEGES, AND FACILITIES OF THE
UNITED NATIONS
Section 1: Recommendetions Codg Privilegeand Immunities
1. THE PREPARATORY COMMISSION REPORTS to the
GeneralAssembly that it has instructed the ~Xec~ti~eSecretary to
invite the attention of then of the United Nations to the fact
thatunder Article105of the Charter, the obligation of all.memben to
accordto the United Nations, its oiiichls and the representatives of its
members all privilegesandimmunities necessary for the accomplishment
of itpurposesoperates from the cominginto forceof the'charter and is
therefore applicable even before the General Assembly has made the
recommendationsor proposed the conventions referred to in pmgr3ph
of Artide 105.
2. THE PREPARATORY COWSSION RECOMMENDS that
the General Assembly,at itFirstSession,shouldmake recommendations
- with a view to dete- the details of the application of paragraphs
1 and 2 of Artide 105 of the Charter. or propose conventions to the
Memben of the United Nations for this purpose.
3. THE PREPARATORY, COMbDSSION TWSXITS for the
consideration of the General -4ssemblythe attached study on privileges
and immunities and the artached draft convention on,privilegand
immunities.
4. THE PREPARATORY COMMISSION CONSIDERS that the
detailsof dioiomatic orivilepesand immunities to be accordedto members
of the ~nterktional tourt GiJustice when engaged upon the business of
theCourt and the privileges and immunities of agents, counsel, and
adwcates of parties before the Court, necessarp to the independent
exerci ofetheir dutie3t the seat of the Court and elsewhere,should
be determined after the Court has been consulted, and that until further
don has been taken the des applicable to the members of the
Permanent Courtof Internaaonal Justice should be followed.
5.THE PREPARATORY COMMISSION RECOMME,XDSto the
General .Assembly that the privileges ad immunities or'specialized
agenciescontained in their respective constitutions shouldbereconsidered.
If necesarynegodadons.should be opened for their coardinatinnthe
light oany convention ultimately adopted by the United Nations wirh
regard to the consideradons set fonh in the folloc.xm.ctfrom the
appendix. to Section 3 oi Chapter V of the Rrpon by the Execusive
Committee, to which.a iew.~ords in italics have been a:ded
" 5.Thereare many zdvanwgesin the hencarion. ar'zas pwible
oi +e privii~ and immunitiesenjovedbv the 'JniredXationsand the
vanou~ smzuued qencies.On the-orhe; ha, itrnut berecognized
that nordl . s s ar~enciersequke the ~rivilqes and immunities
.quire greater privile*hnrs+hcUnitedYazionsid£.cvoCntainofvthe
@*zed agemennmcopSby reasono/hi7 parharh&/:muchnS,require
pimk~cs of a spud wkiuirvenot~equiredbv thc UnitedNatim.
The privilege3and immunities. there,f the vditNationsmight be
tegard aeda marimurnwithin whichthe varlous specidized qencies
shouldenjoy just sach privilegesand immunitiesastheprfultilment
of theinrspectivfunctionsmay muire. It shouldbe a principlethat
no immunitiesand priviIeges,which'arenot really.necessary,sbeuld
askedfor." ~WyWazaP-'
L
.. . .?. . .-
..... .. .. .* ..*
~~pendir A: Study on Privileges and Inmmaitirr,
3.The GeneralAssemblm vavmakerecommendatiw oinsha.him to
detcnninjng the details ofthe a'pplitationofpagraphs I and2 of this .
Articleormaypropos ceonventit onthe Membero sfthe UnitedNatidns .
forthip slupse." therefore,ofthe UnitedNationsmightberegard&d a ma.ximumwithinwhich
thevariousspecializedagenciesshouldenjoyjust suchprivilegesandimmunities
a principlethat no imm~ties and privileges,wharenot reallyneceauy,hould
shouldbeaskefdor. Anexampleofa casewherea differentiationhasbmade
betweenimmunities,forpracticalreasons,may be sby comparingSection3
. ofArtideIX ofthe &ti& ofAgreementofthe International Xonetary Fund.
and Sectio3 ofArtidM e of the Artides of Xgrranentthe International
Bank for Reco-on and Development. Thereare certaiprivilqpand
immunitieswhiwhpih, ably every spedaliagencw youldrequireas dl as
theUnitedNaQm itself,sach asrecognition that~OSWES legaca?acig to
contract and to hold property, and be a paty to legal , the
its o5ciais. When the privilegesand immuniefsthe Uaited Nations have
beendeterminedin detail, athe specialized agenciesare bgronght into
relationshiwiththe United Nations, reconsiderationof the priviaeds .
immunitiesaccordedto suchspeciaLiztdagenu& maybedesirabifitisfound
that they enjoyprivileandimmunitiesin ofthoseto begivento.the
Unite Ndationsor ofwhat reallyrequired.
7.In thiareport the espre&on ".diplomatic privileimmuniti "eis
usefdorconveniencto descrithe wholecomplexofprivitegesand immunities
which arein fact accorded to diplamatenvovs. While it will clearly be
nfferjarp thaaloffid&, whatever their rank,'shouldgranted+n+ty .
. whetherin theccruntryof whictheyoare nationals or ekewhere.it is by no
meansnecessarythat allofficiakshould havedipIornaimmunity .n the
contmry,ther is everyreason for con6ningfull diplomimmunit to the
caseswhereitirealljustified. hyexces or abuseoimmunit and privilege
isasdet&wnt.alto theinterestsoftinternational organizationitseistoit
the wunizieswhoareasketdo grant such immunities. the caseofe.xisting
spedalizedagencies.the practice has up to now beento confinediplomatic
immunit ty theseniorOW ofthe agencyconcernedandthoseofhisassistants,
theI.L.O.therangoeioffid& to whomdiplomatiimmunieryhas beenaccorded ,
issomewhatwider.). It isalsoaprinciplethatno officialcanthecountrp
ofwhichheis a naQmal,immunityfrom beingsuedinrespectofhisnon-oscial
actsand fmm crimbal prosecution. Itfurthermostdesirablethat both the
United Yations andallspciaked qencies should adopt theprinciple that
~rivilegesand immunitiesare only $vcntheioi3icd.sin the interests ofrhe
&ganhtion in whose senricthey are,nd in no wayfor the benetit of the
individuaiconcernedand that, in consequetheSecrecup-Generaboth can
cousisientwittheinterestsof the GnitedNations. Thirsule haslongbeenin
forcein thin-rional LabourOqanizatioa it has beeacceoredby most
.:. of thenew sgeadmd agencieswhich have comeinto being. Shihrly, it is
g: desirable thawhere the United Xations or a swalizedaeencv condudes
c4 conaacrs withurivate individuals or comoradons. ir inouid hciude in :he
5s conaacr uruncktd&g to sub& to arb'inarion dispuresaxising otheof
1 GOUT+, iit isnot prepred to50 beforethe Couns. Uost oi '-he.en'sdng
I:' spedwxiagenaes havealreadyqwd to do chis.
sz. TarntionofOfi+& irrthStatojtshichtkswe naknak&
8. Theprovisionsintheagreementsor coktitutions oi the newspeaaked
saiaxiofomdals, leavecompletektitnde to governmentsto tax the s&ofn the
f ofljdalswhoartheir ownnationals or penons residentin their dtory.
resulttheAct of Parliament of the Ugted Kingdom whichwasp&M to
enabletheUnite dingdomto giveefiectto its obligatasregards
f and immuniti for international organizati(the Diplomatic Privileges
Extensi Act, 1944exceptsfmm the immunitfyromincome tax the&es
of thosinternationaloffidwho are botBriti suhbjecand whose 4
If placeofabodeisin thUnite dingdom. hsimilp aractiahasbeen followed
r
. .---
incatain other countries. It is, however,a for consideration whether
thilatitude orthixceptionarreallvsound.One ofits efiectsis that someof
themembersofthestaffhavesalari iesicaretax: reb.ecausbeingresident .
outsidetheir ownstates.they do not fall under the incometax provisionsof
theirownstate, whiteother officialsdoingtheworkfor the samenominal
salm are subject to incometax. This has ledto certain adminisnarive
shouldnot pay somespecidallowanceto thoseofits employeeswhoarepayings
incometax, in order to produceeqnality.
" The agmts,counsel.andadvocatesof&es beforetheCourtshall.
enjovthe privilegesandimmunitianecessarytheindepQldentexercise
oftdeirduties." .
When thefirsand secondof these pamgrapbs(whichcamspond to the
probkiionsofthStarUteofthe Permanentr,lrrwh,enas the this new)are
comparedwithparagraph 2 of the aipve quoted Art105of the Charter of
theUnite Nation is,eemsdrat that themembersoftheCourt,whenengdged
inthebusinessofthecourtare to enjoy*matic privilegesanimm~tis
inthefnllestsensT.hishaskm thecasewrththemember sf the P-mt ...
AppendixB: Draft Convention on Privileg aens T e8
WHEREASby a resointionof theGeneml Assemblyadopted on.......
.................itwas decide tdproposea conventionwita view to
det- the detailsofthe applicationof the aforesaidArticlesand
the presentmnventionwas dram up and approved by a
resolationtheGenera Assemblyadopt4 on............................
- -,
1. Theprexnctonventionis opento acqsion on behalfofevuy ?&em& of
- theUnite datims.
accession.
ofthedepapitof eaaccession.l inforalXem* of the UnitedNations
behaifof any M~,.thisX~dhavetalrcnsuchaaionasisnecessargted on
in iown territoriesforthe purposeofgivingeunderitown lam to the
terms of theprrsmtconvention.
sofar as that Idaber or those Xemberconcern& the provisionsof the
presentConvention.
2.The urcmisesof tOqmization shall be inviolable. Theurom,and
assetoft& Organizarionwherevlocateandby whomsoever i$tds.h& be
immune tmm search .quisirioa. cowisation, expromiarion andhm anv
or otherwise.iznrwhew by ~~~rive,adminisaahve or legislativeactioi
:o it or heidby it. beiuviolablwherevelocaredldocnmenis.beLon- 1.TheOrganization,its assetscomeand otherpropem shall be :
Organizationcannot daimexemption from taxes which are, in fact, no
morethan chaqes forservicrendered ;and
(6ekempt fmm customsdnries in rrspect of articlesimported by the
Organizadonforits officialandin resoeo cftpublicationsissuedbv it.
It is,however,derstoodthat arcicies&ported frof customsdutywill
not be sold in the wmtry into whichthey wereimported except under
conditionsgreewdith the authoritiesofthat country.
3. Whilethe Organizationcaunot in principledaim.exemption from sales
taxesand excideuties.whichformpart oithe priceofgoodssold,nwertheiess
incaseswherethe.Organizaion is making large purchasfor 0fZlddust!of
goodson which such taxesand duties have beencharged or are -able.
Member sill,w-heneverpssible, makeappropriateadministrative-gemenis
forthe remissionor retmn ofthe amouof taxor duq.
Astide4
Provisio renarding communication facilitiesand facilitiesfor purchases.
. (SeeAnnex to AppendixCof this chapter).
BrtieIs6 .
1.RepresentativesofIembers tthe principaland mba:~ organs.ofthe
Unite dationsand to conference sonvened by the Orgamktion shallbe
accorde wdhilexercisintheir functionsandduringtheir jomney to and from
theplaceofmeetiug,thefollowingprivilegesand immuniti:s
(a)immunity fromlegalproms of any kind:
(6immunity from immigration restrictions, alien qistxatiand
'
(d)the same immunities and facilities as regardtheirha1
baggageas are accordedto diplomaticenvoys.
2. Asa m- ofsecurincompletefreedomof speechand.independencein
thedixharge of4Beir duties, the representativesof Membersto the prinapal ' .
id subsidiarvorgansof the United Nationsand to conferencesconvenedby
the Chpnhtion shall baccordedimmunity fmm legalprocessin respectof
allacts doneand wordsspokenor written by them in the of their
dntiesssnch.
3. The provisionsof paragraph1 (aand (b)and of pmagaph.2 of this
Article cannbe invokedby any pewms agains thte authoritiesofthe country
of whichheis a national or of whhe is orhas beentherqmsentative, nor
whea the Memberwhichhe rep-ted haswaivedthe immunityin question.
4. h thiAsrtide the exprrsion mpm3enrativesshallbe deemedto include
. alDlelegatesand Deputy Delegateadviserstechnicalexperts,andseaetaries.
Brticls6
1.Allaffcialst of the Organbation s:all
(4 be immune, together withtheispouse asd minor childrh rn,
immigrationrstrictions and alienregistra;ion
(c)beacaitd ehe sameprivileagsersgardsexchangefadMes asare
gcordedto theofficialsofcomparabrank formingpart ofthe diplomatic
missicmstothegovanmentofx; and
(,fb)given togetherwith theispous esd minor children thesame
repatriation facilitiesasdiplomaticaistime ofinternationcrisis.
2 Inadditionthe+taryGeneral, al+lisrant Smetarieeral, their
ur~onss-a andfacilities accordedto diplomatienvoystthei rpoasesand
miyr dulf i qacarudanc withhtmnatiianallaw,but shalnot be entitled
tomMkelll~umtyfmmlegalproass rc.grdsmattersnot~with
thei ofiida dutieMorethe comlsofthe county ofwhic hhey arenaU&
. . . . .........: "... . . . AxtiCb7'.
1.The Organktion may issuUenitedNations.passportsto its officials.'
All UnitedNatioMpasspa shallberecognizedandacceptedaspassports.
2. rippli&ti& forvisasfromtheholdezsofsuchpsportswh~lacu,mpanied.
bya certificthat theyan travellion thebnsinessof th-tiion.
shall bdealtwithwiththe minimum of delay.h Intion the holdersof
UnitedNationspassportsshallbegrantedfacilitiesforspeedytravel.
hisofEdipant~onenlopjunmaty, 9 suchimmunityhasnotbeenwaivedf
bythtSecretay-Gaed.
BrtiolssUNITED N
OFEICLU RECORDs OF THE mRST PART OF THE
FIRST SESSION OF ' Gl3sERAL ASSEs.MBLY
SIXTH. .COMMITTEE
/-' LEGAL QUESTIONS '
SummarRecordoMeetings.
11Jan-.-8 Eebrua1946
NATIONS
DOCUMENTS OEEICIELS DE LriPREL- PARTIE DE
LA PRELi! SESSION DE L'XSSELMBLEEGENERALE Heid on Thursday,26January 1946a 5 p.m. Tenue ie jeudi 24 janvier Id4I7 heurer.
i
Ch@nnan: Mr. Roberto Jn~;irrzz (Panama).1Priident: MI. Roberto Jdmz (Paaaa).
9. Privileges and Immunities : en- 9. Pridbges et ixmunites: Discus-
eral Discussion sion generde
Sur l'mvitation du. Pfidenle SE~TALRE
The SECRET~~Y o,n the invitation of thefairun expad surladocumentationrelativaux
tion relating to the question of privilegesandviliges et irnmunitts, enattirant l'attcntion
immunities,dawing the attention of the Com-surle chapitrVII du Rapport de la Commis-
minet to Chapter VII of the Report of the sionpriparatoind en signalant que la Sixike
PnparatoryCommission,and pointing out that Commission a le cboix enae la prirentation
the Committee had to &me whetha it shouldd'une sac de mommandatiolns et I'Ctablisso
makc a saies of recommendations or draft amat d'un projet de convention. La Commis-
convcntios. The Committeewould als oaveto avec 1'Etat h6teLepS euvv un ajoute que les
adopt a drafttreatywith the host StateThe documents contcaus dans le Rapport de ia
Stcretay alsostated that the documents con-Commission priparatoire sont en ce ,moment
now out of date sincethejuridical SubCom- pirim&, du fait que la Sous-Commisionjuridi-
mince of the Interim Committee on Head- que du Comic5tcmporaire du sitge pananent a
quaqas had elaborated new drafts. ilabori de nouveauteqes. -.
The CHAIRMAp Nroposed that aSub-corn- Le PR~sIDENT PmpOSe dt C O ~ N ~ une
mitt= on. privileges andimmuniti es ap- Sous-Commission des priviitges et irnmunitb.
poA brief discusion took place on the terms oUne brkve discussiona lisur le mandat de
referenceof the Sub-Committee. cent Sous-Commission:
i
Decision The Committee agreed, by a vote, Dkision: La Commission dicidepat un
that them of referenceof the Sub-committeeote que LaSous-Commissionaurapour mandat,
WCTC JiTftof all to recommend which was plef- tout premielitud,recornmandm lasofvtwn
erabieJa draft convention on privilegesand im- lui parcritpre'fir4bsavoir un projet de
munities, orseriesof recommend&ns, and to conventionsur fespn'aiIdgeset immunitks ou une
report itrecommendations to the Committee. she de recommandations, et dfairerappo~td
cesujetdla Commirn'on. Le P~S~ENT propose que la Sous-Cod-
Thc proposedthe followingMem- sion comprcnne des reprkntantsds Mcmbrs
Befgiuin, Bolivia, Canada, China, CubDen-iasuivants: Australie, Bdgique, Boiivic,Canada,
Chine, Cuba, Dananark, Egypte, Salvador,
Union of Soviet Socialist Republics, UnitedFrance, Pologne, Tjnion ds Rtpubliques socia-
Hingdom, United States of America and Yugo-listssovicitiques, Royaume-Uni, Etats-Unis
slavia d'AmCrique,Yougoslavie.
The representative of tU~R~INIA SOVIET Le reprCscntantdelR~PUELIQU sEcuusn
SOCIALISRTEPUBUC rquested that the repre-SO~QUE D'U- drmande que le rcprt-
sentative of Czechoslovakiashould becluded sentant de la TchCdovaquie soit compris
among the members of the Sub-Committee. panni lo, mcrnbns de la Sous-Commission.
Mr. READ(Canada) asked that the represen- M. READ(Canada) propose que Ie rep&-
cativeof Czechoslovakiashould take hisplace ontant deh Tchicoslovaquic occupsa propre
the Sub-Committee, since, inisrole ofRap- placeB la Sous-Commissionpuisque, esaqua-
porteur, he would be attending its meetings.it6 de Rapporteur, il assisterade toutc faqon 8
solSiances.
Le repnisentant de lTCRECO~LOVA QeUIE
pressed hithankato the reprsentativa of themcnie les reprtscntantsdlaRtpublique socia-
UknrinianSovietSodalist Republic and CanadaIiste soviitique d'mhl-etndu Canada et ac- '-
and agreedto take partinthe meetings of thecepte de padcipv aux discussidoensa Sous-
Sub-Cornm.ittee. Commission.
10. CommitteeStructure of the Gen- 10. Commissionsde I'Assemblee 56-
eral Assembly nerale
The C w announced thatu,nder the 1 Le PR~DBNT'JMO~CC que, scion le mandat
termsof reference of the Si Committee, the!assip6 ;ila Sixihe Commission, cde-ciam
qustion of commirtee saucnue of the Generalaussij.trudier la question des commissions..e
,hanbiy had alsto be studied,and he refer/doir componer l',hsernblCegknitaetel invite
the Committee to page21 of the Report of the I la CommissiBnse rrifuer iila pqe 21 du
PreparatoryCommission, together withappen- Rapport de la Commission prkparatoire ainsi
dix I1oi theRepon. Iqu'8 l'annexeI1de ce Rapport.
He proposed that thisquadon should be au SousComitt du rigianent intfrieur. question
studied by the Sub-Committee oruiesof pro-
cedure. '
The Chairman als oroposed that the Sub- Ilpropose Cgduncnt d'adjoindrc, au Sous-
Committeeon ruies of procedure shoube ?- Comitt du rtglcment intiiieur, desrcprkntants
latge by the inciusion of the representativesof EtasUnis et cieI'URSS. \
theUnite Sdtates and tUSSR.
Dedsion: The Committee adoptedunani- DWon: La Com+sion approuve a Puna-
mouslythe Chairman'sproposal. nimit.4lesPropositionsdu Prkndent.
Themeetingrose at6.15P.m. I La skczncestlevke d 18h. 15'
15 .ANNEX 3 l..E:E3
[X/C. 6/17: i [A/C. 6/17] 1
Originaltext:English i Tzxte original en anglais
pFfmL&cz ETI M M ~
i
FIRST REPORT OF THE SUB-COM~~~E ON 1 PREXER RAPPORT DE LA SOUS-COMPLISSTON
PRNLLEG ErS IXMUN~TLZ S I DES P~LBCES ET I M M ~ ~
Rapponeur: .Mr. W. E.B~cnerr (United Khg- /Rapponeur: M. W. E Bac- (Royam-Uni)
dom)
I. On 24 January 1946,the Sixth Committee I. Le 24 janvier 1W, la Sihe Comm;dan
appointd a Sub-Codad co consider chapter a charg6 me Sous-Commission' dlCtudier le
VII of thc Report othePreparatory Commission. chapitre VII du Rapport dcla Commission prb-
The Sub-Committcg was invited to present a prc-paratoire.La Sous-Commission a Cti iavit& b
Iidaary report on the most appmpriate methods priscnter unrapport priliminairr sur lesmdeum
of impianenting the provisions of Mde 105of michoda H suivrcpour memE at application la
che Chaner. The Sub-Commiaa met on 25 Commission s'est riunie le25djahvier,etcaprb-
Januarya, nd after having elemd a Chairman: avoir ilu Ptbiht, S. E.?ifGuemm (Salvador) ;
man,Pmfesor Krylov (Union of Soviet Socialist Vice-R&idcnt, Ie Pmfes~ur Kcylw (Union des
Republics) and Rapporteur,,Mr.Beckerr (United
Kingdom), ed. ed the rrspcctiveadvantages
of:
(a) The tbcmbly making mommendations;
and a) Soiti faindn recomman~m;
(b) The Assembly proposing conventions to b) Soic A proposer da comentionr aux
theMembem of the United Nations. Membrcs des Xations Unics.
Boththese cow an mentioned in Article 105 La possfniliti de recourHrI'un ou l'auar de
of the:Cham a possibie alternatives. Ices day prow est mentionnit A 1'AreidE105
de la Chane.
2 The SubCornmimc agreed,ivirhout rcscrva1 2 La Sous-Co&on a dkid4 sans r6-
tion, to request rhSi Committr?t?to recorn- Id'inviter la SixiheComnzirsionA recommander
mend that the General .-iy should propose 1que l'.ksemblte gdniraie proposeaMcmbra des
Convention whichwould determine the ded,gcndof Ipriciser Iedbraiis d'appiiution des parqraphu
application of paragraphs1and 2 of Artide 105 1 1er 2 de l'.ktide 105de la Cham. Cettcsuggcs-
of theCharter T.is sqgution doa not prejudice rion ne prijup pas la quesaon tout A fait dis-
- cheseparate question thecondusion of a special tincte de la conclusion d'une Convention spWe
- Convention with the State on the temronr ni *avec I'Xtat sur le tenitoin duquei seitabli le
which the seat of the United Naaons will be :siiyc da NaaonrrUnia.
situated.
3. Therewen tk mainnvons for the con- 3. Trois nisons principales ont motivl la con-
' ' ciusionof cheSub-Committee. In thefirst ?lace. it , ciusionde la Sous-Commission. Tout d'abod on a
vasthought that che immunities n-ary for the 1esdmCque les imrnunitb nCcesaLs pour pomet-
fulfilment of the purpw of the Organization Iue h l'Org3nxs~tiond'arteindrsesbum. rt h sa
and the independent e&e of their functionsIfoncrionnares ettau repmenunts des Membres
by itoEciak and by the representative of Mem- ,a'axercer leun t'onctionm toute indipendance.
~ bers should be laid dorm ia manner which was :dwraient itre Eonnultw de &on aussipricise que
as prtcke as possible. Secondly, that :he methad j possible. En secondlieu on a pens6que I'onddt
to the -testoptuniformity in application;andad, l'app1ic;ltionlemaximum d'uniformiti. Enfin, la
tfiirdlthatthe procedure should besuch asbat , procidure dwrait itre de iaciiiter Ie pius possible
mazyacdomestic legklationrU1these three revonsiintCrieurc indispensable.CrsbtmL misons onrslauon
panted to tfi cdoption of a Convention as the Imen6 B considirtr I'adoption d'une Convention
I
'The Sub-Committeeonsiro orherepresenah of I 'Le row-comiti estcompose des rcprisenanu da
rhe fouowingSemben: Awda, aeiqium.Botivia,Etau Yembru u-aorb: .%wrriie.Belgique,Sotivie,
dor,a,FrancePoland.United Kinqdom UnitedStata-,CSalvadorFnaca,tcPolope, ~~~~~Ud, Etau-Unk
at.heria, Union ofSovietSocialist Republics, Yupd'.b&que, Union dn RCpubliqua 1&tw SOGO-
&via. a uquesYouspriavie.
44 best*come. The pmceaure of recommendations comme la rndeun mithode. La p&m des
itself suggestssomeindefinity of content as wellrecommandations compone, par sa nature
35 latimde inappiication. Further, a Convention mGme, une certaine hpridsion dm son
is more usual, aswell asin general a more satis- objet et queique latitude dans son application.e
factory basis upon which Govemxnats canap plus, une Convention constitue le plus souvent la
proach their respective legislaturesin order to obbase sur laquelle la gouverncments peuvent, g&
rain any Iegisiativeaction which maybe necessary. niralement dans les conditions Ies plus satisfai-
Certain members of. the Sub-Commitiee, and santes, inviter leurs parlements respecti& voter
amongst them some representing Federal States, les mesures ligislotives ivf?ntuellement nicessaircs.
smrsed their view that a Convention adopred by ICerWinsmcmbre. de ia SourComminion, n parmi
the General .4ssembly would be the method best Ieux des rcprCsentants d'Etats fidkux, ont it6
calculated to facilitate legislation. !d'avis que l'adoption d'une Convention par 1'As-
semblCe gininle constituerait la meillem m4-
thode pour facilitcr le vote de mesum 1CgisIativa.
4. The adoption of a Convention would not 4. L'adoption d'une Convention n'ordurait pas
esdude the possibilityof the adoptioin addition, :la possibiIitt d'adopter en outdes recommanda-
of recommendations upon parti& points which Itions sur.da points parriculicrs qui ne seraient pas
.rvernot fdy deair with in the Convention. This iuairi se rxaniire complete dans la Convention.
possibilityis merely alluded to, in case in the ;Cetre possibiIiti n'esici envisagie que pour le
course of later discussion it is thought desirable;CXE oh. .au cours de discussions ultirieurs, il.
ro ded with particular points in tbis way. It pamitrait souhaitable de ripier ains ies points
should not be supposed that the Sub-Committee parriculiers.I1ne faudrait pas en diduire que la
hasyet come to the conclusion that it wouid bt 1Sous-Commissionsoit d'ores et dijB arrivct B la
necessary or desirable to have such additional Iconclusionque des recommandations additionnelles
recommendations. !dc cc genre seraient nkcssaim a souhaitabies.
I 5.The _generalConvention on immunities and 5. La Convention giniraie sur les privilign, et
privileges of theUnited Nations is, in a sense, a imxnunitis'ds Nations Unies constitue, crun cer-
Convention between the United Nations as an Or- tain sens, une Convention entrc Its Nations Unia
ganizatioq on the one part, and eachof its Mem- considhies cn taut qu'Orgadsation, d'une part,
bers individually on the other part. The adoption ct lcs Etats Mcmbm de cettc Organisation pris
1' of a Convention by the General .kemblv wouId individucllcmuit, d'auat part.. L'adoption d'une
therefore at one and the same time fix the text ,Convention par 1'Assembla ghCrale Ctabiirait
of the Convention and also imply the acceptance donc le tcaedc la Convention, en mimc temps
. of that text by the United Nations as a body. qu'elle impliquerait l'acccptation de cc tcxte par ,
. On the other hand each of the Manbers 1csNations Unies, de IN &ti. D'autr part,&a-
individually would only accept and become bound cun'da Etats Mcmbres pris individuellement n'ac-
by the Convention when it had deposited its cepterait la Convention et nc serait Ei par eile
formal instrument of accesion or ratification. a que lorsqu'il aurait diposi ~~ent offiad de
step which the Memberwould only take after it son adhbion ou de sa ratification, mesure quc lc
had fulfilled suchrequirements as itsconstitution Manbn ne prendrait q'aprts avoir satisfaiaux .
prescribed. exigenca dc saconSa:tution.*
OFEICI& RECORDs OF THE FIRST PART OF THE
. .r
. FIRST SESSION OF THE . GENERAL ASSEMBLY
..
1 .: .:. .. -
- SIXTH. COMMITTEE - -.-,... .
.. /-
LEGAL QUESTIONS ' _ .
: .... '.
-;;;:.., '. ,
-...51*,.,-.-- ... . Summaq Recordof Meetings
.,...-.' 11 January - 8 Februsrp 1946
....:+:'.:
.-....,.'. .
. i--'... . . .
,.::. '.,. -- . .
QUESTIONSJmIDIQUES
. . ' ....
j; ,f;.'~.
,.-. - Procb-verbaux des sCances
. a . ,:, 11 janvier -8 f6vrier 1946 .
. . -
... .
........... ..
. .
-+ t j CHURCH HOUSE,T~ES~~NSTER SEVENTHMEETING SEPTIEMESEANCE
[A/C.6/ 191 [A/C.6/19]
Held on MondayJ 28 January 1946 at5p.m. Tenue le lundi 28 janvier 1946 d 17 hcures.
Chai,.man: Mr. Roberto Jrarfx~z (Panama). Pre'sident&I. Roberto JIJ~~NEZ(Panama!.
11. Privileges et immunit4s : Premier.
11. Privileges and Immunities : First
Report of the Sub-committee rapport de la Sous-Commission
(document A/C.S/ 17) (document A/C.6/'171
Mr. B~cmn (United Kingdom), speaking hf. BECKETT (Royaume-Unij , Rapporteur
asRapporteur of theSub-committee, stated thate la Sous-Commissiondes privilegeset immu-
the Sub-committee had reached agreement re- nitis, annonce que celle-ci est parveBueun
garding the best method of: implemendng the accord concernant les meilleures methodesh
provisionsof Article 105of the Charter (annexaivre pour mettre en application Iesdionssl'ti
3, page 44).Itconsidered that the Committee de I'.\rticie 10.5de la Charti. (annese 3, page
should recommend the conclusion of a generalCommission recommande i'itablissement d'une
leges.tion concerning immunities and privi- convention gCnCralerelative aux privileges et
immunitis.
Mr. Bekkett further explained that the juri-31. Beckett inforrne en outre la Commission
dical Sub-committee of the interim Committee que le Sous-Comiti juridique du Comiti tem-
on Headquarters had prepared a draft treaty poraire du siege permanena Clabori un projet
(document A/C.6/21) with the host State, ande traitB conclure avec PEtat hate (document
tothishad been attached an annex which was A/C.6/21). -1ce projet se trouve jointe une
based on the provisionsof the draft general annexe qui s'inspiredes dispositionsdu projet de
vention on immunities and privileges containconvention sr:r les priviliges et imrnunitis con-
in the Report of the Preparatory Commission.tenu dans le Rapport de la Commission pri-
paratoire.
Decision: The Committee adopted unani- Dbeision: La Commissionadopt.: d Pztnani-
mouslytherecommendationof the Sztb-Commit- mite'la proposition de fa Sous-Co~mkion ten-
tee that the GeneralAssembly should propose dantd ce qztePdsse?nbl?eine'ralzrecomrnande
i a conventionto thebfembersin respectof priviaux iVembres Pitab!issemt.ntd'une convention
' \ legesand immunities,and that theSub-Commit- relutizreaux priz~il2geset immunite's.et que la
, tee should draft such a convention. Sous-Commissinnsoit chnrge'ed'en e'laborerle
projet. -..
12. Provisional Rules of Procedure of 12. XBglement interieur pro;risoire de
the General Assemblv: Amend- l'Assembl'6e genkrale : Proposi-
ment proposed by the helegation tion d'amendement l'article 78
of Egypt to Rule78 and Supple- et a l'crrticle aaditionoel S, sou-
mentary Rule S (document A/- mise par la d615gation 6gyp-
C.6/14) tienne (documeat WiC.Gil4
The ~6 was of the opinion that th' Le PR~SIDEN propose qud ramendement
amendment proposed by the delegation of soumispar la dflCgationigyptienne relativement
Egypt to rule 78 and supplementary. rule S ;5 l'arric78et Bl'articleadditiomel S du rigle-
the provisional rules of procedure (an2ec. /rnent intCrieur (.anne2ec. page40) soit ren-
page 40) should be referred for study to thIvoyCpour etude au Soils-CornitCdu reglement
Sub-committee on rules of procedure. Iinririeur.
Decision: The Committee adopted the i D6eision: La proposition du Pre'sidentest
Chairman'sproposalunanimously.It alsoagreedjadopte'edl'unanimite'.En outre, la Commission
that the representativeof.pt, who was nota ridride Tzrele reprisentant de PEgypte, nei
memberof the Sub-Committee,shouldbe incited j fnit pas partis dzi Sous-Comitt?.sera iciite'
to attend its meetings. !misterarixsinncss tie celz~i-ci.
13. Committee Structure of the Gen- i13. Commissions de l'Assembl4e g6-
eral Assembly: Submission of j nerde : Proposition d'conende-
Amendments inents
The CHAIRMA sated that any deiegaaon Le PR~S~EN prie les d<!igations dkireuses
wishingto propose amendments to the rules 1fde proposer des amendements au riglement
procedure relating to the committee structuIintClieur, relativement aux Commissions de
the General Assembly,notably rules 91 to 1031'AssemblCgeinirale, et notamment aux articles
shouldsubmit them in writing to the Secretariat..103,de les prisenter par Ccritau Secrita-
riat.
14. Mesures a prendre en vue de la
14. Stepsnecessary for convening the convocation de la Cour interna-
international Court of Justice tionale de Justice Idocume~t
(document AfC.6/16)
Le PR~SI;16 1 nvitNlT Commission B cxa-
The CHAIRMAN announced that the Corn-
mitteeshould now considerdocument A/C.6/16 miner le document A/C.6/ 16 (annute 4:.. ..-- ..
,-.-., . .
.- .:....
&....... S,EX-Jj .JE. CB.MMISS,TO:N
QTJESTlONSJ >URDIQU3ES'
. ,
- - . .
,]~r&verba& des sknces
.' ' 11 janvier:-8 fies 1946 -
-
. .
-. . . . . .-.
......:... - .......
HOUSE,'~'ES'IXXNS~R ,' ' ....... publics,Unired Kingdom, United States of bliques socialistes soviCtiques, Royaume-Uni,
America, Urucguay,Venezuela and Yugoslavia. Etats-Unis d'ArnCrique, Uruguay, Venezuela,
Yougoslavie.
Guatemala.oHaitiLCiberia, Luxembourg, Para- Guatemala; Haiti, Liberia. Luxembourg, Para-e,
'pas.
Themeetingroseat 4.30p.m. way- Lase'anceestlevie ri1h.30.
ELEVENTH MEETING ONZIENE SEANCE
[A/C.6/37] [A/C.6/3;1
HeldonThursday, 7~e&&r~ 1946 Tenuele jeudi 7 fkvrier 194ci14 h. 30.
at230 p.m.
Chairman:&fr. PerFEDERSPX (EDenmark), Prsident:M.Per FEDERSPI (Danemark) ,
Vice-Chairma Vice-Pfident.
21. Election of a new Rapporteur 21. EZ-on Sun nouvecru Rapporteur
The Cg~nrm congratulatedthe Rapporteur Le P&S~ENT facite Ie Rapporteur de la
of the Committeet Mr. Read (Canada), on Commission, M. Read (Canada), de son act-
his election as a judge of the Internationaltion come juge B la Cour intdonale de
Court of Justicc,and announced that ilk. ReaJustice etfait connaitre quaen raison de cette
had.resignedhis officeas Rapporteur in conseaection, M. Reads'estd&nisde safonctionsde
quenceof hiselection. Rapporteur.
On the propod of rficChairman, seconded Sur la proposition du Pdsicient,appuyik par
by the representativeof BELGIM, rBECXETT le rcprkntant de la BELGIQU E.,BECXETT
(Unite Kdingdom) WILT elected Rapporteurin (Royaume-Uni) est iZu Rapponeur en rem-
tkplace ofJUTR. ead. plncementde M. Read.
22. Mdeges ~md hxmunities: Re- '22. md&ge st immunitris: Rapport
port ofthe Sub-committee (docu- de la Sous-Commission (docu-
ment A/C.6/31) : Draft Recom- ment A/C.6/31) : Projet de re-
mendcrtion and Convention on commandation et Convention sur
the Privileges.and Immunities.of I les privil&ges et immunitris des.
the United Nations (dovent j Nations Unies (document A/C.-
L:. A/C.6/28 I 6/28)
I
LXr.BEC~E~ (United Kingdom), Rappoc i Y. B~cgen (RoyaumcUni), ~a~~orkur,
reur,introducing'thereport of the Sub-Commi/enprkentant le rapport de la Sous-Commission
tee (annex 3%page 45), pointed out that the j (annexe 3%page45), fait rssortir que la Con-
generaC lonvention on privileges and immuniivention gbMe relative aux priviletimmu-
tiesof the United Nationwas based closelyonfnit& da Nations Uniessuit de tr&p& Ie texte
the ten in.rhe Repomof the Pre~arator). Comjdu Rapport. de la Commission pr6paratoire
:nissionpage 72!.. a (page 72).
.The CHAIRMA callefdor cornmars on the i Le P~&S~EN dTemande qu'on priklre des
draftgeneral Convention on the privilegesan/observationssurle projet de Conventiongh6-
'~mmunitiaof the United Nations, submirtby irale relative aux priviliga et immyiitb desNa-
..:he Sub-Committec - : tions Uniesournispar la Sous-Commission. ..
Slr. WALKER (United States o,America!re-; M. WALKE iEtats-Unis d'.hkique:&enre
~ervedthe positionof his delegation with r:p!a position de sa daigatmonce qui concern
ro paragraphs(.b) an(c) of articlV.section i les para~raphb) et c) de PartideV, section
I$, concerning exemption from tauadon on i 18, conctmant les exonCrati~d'imubtssur la
;ahria and emoluments ad immunity from i traitements et allocations et Paemption du su:
natiod serviceobligations of officiafarsasj vice national obligatoire.poufonctionnains,
United States nationalwen concerned. His j au moins pour ce quiestdes ~ ~ t s des
reaso nas thatthe right to exanpt frotaxa-f Etats-'LTni.a don116cornmeraison que le bi.
don and. exanpt from national service obliga- dyexcmpterdYimp6tsou de service natioest
tionswas a prerogativeof Congress in.thej une prCrogativedu Congrts desEtatdJnis.
United Sratcrof America.
The rep-tative'of Fwn, while he ad-1 Le reprkmtant de laF~ANGE, tout enadmet- -
mittedthe practicaldBicultyfor certaMem- tant la difficultC pratique que prhtepour
bas inadoptingthac two provision, held tha/ certainsMembrcs I'adoptiondc ccrdeu&uses, .
itw& -tial that equali should be main- maintient quaiest esscntid que ly6galit6soit
rainedbetween ailthe .fficials of the Unitedsawegardk entreItsfonctionmh des Natio~~s.
Nationsindepchdeatlyaf nabianality.. Umq. sansd.isti~tctne natioo .alitt: ':r.
..... .-.,......,:C.krainiul, Sod*. ..M,:,K~R ,~~ *~~~~~q%?:~,*g.swi.e .;::.:::\",.
. .Republic)wishedi C r-serve the positionhif tique dYUkraine6seive la posit~onde rrsiedel& delegation regarding the provisions of section gation au sujet des clause de la section 18c) :
18 (c): immunitfy rom national serviceobliga- exemption du service national et aussi au sujet
des clausesde la section30: r6glement dcs difft'i-
tiom, and als regardingthe provisionsofsection
30: settlement of disputes by the International rends 8 la Cour internationale de Justice. Ces
Court of Justice. These items raised constitu- 'poihts posent des probl6mes d'ordre constitu-
tional problemsand it was not possible toadopt tiomel et il luestimpossibled'adopter de telles
the provisionsin question withoutfim consulting clauses sansconsulter au prealable les organes
the most authoritativebodieisn hiscountry. He les plus qualifik de son pays. 11fait rernarquer
stated that he understoodthat, during the meet- qu'autant qu'il s'en souvient, au cours des
ings of the Sub-Committee,the representatives sbces de la Sous-Commissionles reprktants
of the SovietUnion and ByelorussianSoviet-So- de 1'Unionsoviitique et de la Ripublique socia-
ciaIi Rsepublic had alsoreservedtheir positions Iiste sovi6;tiquede Biilorussieont igalement n5-
on theseitems. IservCleurs positionssur ces points.
Mr. BAILE Australia)wished to place on M. BAILEY (Australie) d&e qu'on prenne
record the reservationof hisGovernmentregard- Iacte des r&wves que formule son Gouvernernent
ing the question of exemption of officialsfrom ,sur la question de l'exoniration d'impats des
taxadon (section 18b)on the ,pund that ir Ifonctionnaires (section 18 b) en arguant qu'il
was unwiseto create a tax-iree clas s .e dele- est dangereux de der une classe non soumise
:ation for Australia had reserved its position ,aux contributio~~~L. a ddt'igationde BAustraIie
on this question in the Fifth Committee and Ia r&ervi sa positionsur cette question8 la Cm-
wvouldhaveacceptedthe principle of exemption /quibe Commission;elleaurait accept6le prik
i 1 from taxation if the proposal to impose a ]cipe d'exanption d'imp6t si Yonavait approuv6
United Nations taxon allthe officialsbad been1la proposition tendant.8 frapper tous les fonc-
appmvcd. Itionnaires d'un imp& pm~u par la Nations
;unis.
Mr. SANTOM SMoz (Argentinaj said that / M. SANTOS MGoz (Argminc) dklaw que
his .ovamnent might have to make memt- son Gouvcmanent est susceptible de faire des
tions rcgardbg the immunity from national /r&rves ence qui concerne l'exemptiondu ser-
serviceobligations,and be provisionsof section ;vice nationtil et iesclausesde la section30, mais
30, but he had not been able to receiveinstruc- Iqu'il n'a pasid en mesurede se faireenvoyer
dons on thosqe uestions. Idesinstructionssur cespoints.
Sir HartleyS~uwc~oss (United Kingdom ;) , SirHartleySa~wc~oss (Royaume-Uni) d6- -
stated that he understood the difficultiesof the ' dare qu'il comprend l'embarras des rcpr6sa-
representativeswho had reservedtheir positions tants qui ont r&ervt'ileur position ausujet des
with rtgatd to the provisionsof section 18 (b) Iclaw de la section 18b) et c) etdela sec-
- and (c) and won 30, since theywere unable tion 30, puisque ces reprkmtants n'ont pas en-
to consulttheir Governmentsfullyat the present corepu, au moment pdsent, coDSUitclrem gou-
*he. But he hoped that they would be success- ,vernements.Mais ilexprime l'espoirquailsrius-
.ful in pasuadin theiG rovernments t@ adhere !siront d&der leurs gowernwnents & adhircr
to the present convention. ( Bla prbente convention.
With regard to paragraph (c) of section 18. Pour ce qui a trait au paragraphe c) de la
1 immunity from national serviceobligations, he
section 18,exemption du service nation'',' il
maintained that members of the international maintieut que la membres dc Pa ' tion
civilsavice should not feel themselvesunder a Iinternationale ne doivent passt sen*pris enae
kind of divided loyalty or divided allegiance. deux devoirs. 11s ne doivent avoir de devoirs
Their allegiance should be to the United Na- qu'envers Ies seules Nations Unies. En Sous-
tions alone. In the Sub-Committeeit had been Commission,on a pro@ que lesfonctiomaks
propami that officials of the United Nations desNations Unis &g& de plus de vingt-dnq ans
shouldbe relievedof allnational obiigatiom and fussent d6gagb de toutes obligations etde tout
service to their own States after the age of service d'ordre national. L'adoption de cette
went)-five. The adoption of this rule would r4gle leur permettrait d'accomplit la premikre
enable than to perform their initi aeliod of 1phiode du sentice militaire dans leurs pays
military servicein their own Stat- and after respect& et ensuite il s 'auraicnt .lus aucune
tha~ they wouldno longer have any obIigatiom Iobligationen tantque &nvistg.
.as resavistsin the armiesof their codes.
The acccptmce of the provision to exempt I L'acceptation de la Clauseexemptant du scr-
from nationalserviceobligationswould involve vice national ccs fonctionnaires ne rep&-
no seriousloso sf manpower to the anniolof the tcrait pas une &rieusc diminution d'&& pour
Mgnk . lesarm& des Mcmbres.
Some dclegatiomraised questionson the text Plusieursdt26gatiomposent dcs questionssur
which were answeredby the RapporteurCUf le tcxteet le Rappolrlcwydpond.
At the quest of the repmentathe of IRAQ, A la demande du repnhntant de PIRAE,la
v4 rb, Cornnubee agreedto amendsection14 by CommMon se met d'mcmd pour modifierla
the.inclusj0lt'otfhewmdr "intht opinionof the section14 parI'imertiot) des mok ''2sona -vis"
, . . ..:....M~ba?.~after..th.ewoids:.f'. :;ow .ojustice,, r.
and ..." in order toclarifythetext. ,le texte plus ctciir....fois "...afin:..-.-....h,.-...i.i.....-
1 1Mr. (New Zealand) proposed the M. Axxnw (Nouvelle-ZIande) proposed'in-
inclusionn the draft Conventionof a referenceCrerdans le projet de Convention une phrase
to the application to comparableofficialsin thedantB rendre lesclausesde cette Convention
specialized agencies of the provisions of thisplicables aux fonctionnaires des Mtutions .
Convention. Af the request of the Chairman, sptcialisies qui sont dans une situation corn-
Mr. Aikmanagreednot to presshis proposal .onparable. A la demande du PrisidentAM. Aik-
the understanding that -heuid me the sub- man consenth ne pas maintenir saproposition,
jectagain when the Committee was discussing ttantentendu qu'ilsoul~aaB nouveaula ques-
the recommendationon the coordination of thetion lorsque la Commisjiondkutera la:recorn-
priviIegesnd immunitiesof the United Nationsmandation surk coordinationdes priviIQeet
and thespecializedagencies(document A/C.6/ Immunitis du Nations Unicsetdes institutio~~s
39) sp6-e~ (document A/C.6/34).
- Mr. (Bolivia)congratulated the M. SALA~\~ZAN (BCAlivie) f3cite la Sous-
Sub-Committeeonitsworkin producingthe text Commissiondu travail qu'& a fourni pour
of the Convention,and proposed thatt.should metbresurpied le textc de cette Conventetn
b=adoptcd -YO aprime levozuque cdta soitadopt& l'una-
ninlitt!.
,- Hedm propose& dd Mr. EGZWN( ~Union 11 proposeaussjetM. EGE- (Unio nud-
ofSouth Africa) secondcd the proposal, that Africaine) appuiecetteproposition,quela.Com-
the Committee should offer a unanimous vote mission adressun vote unanimc de runad?
d thank toMi. Bcckcttfor his brilliant workent M. Beckettpourson.travail magniGque
in the Sub4ommittec danscette Solll~Cammission.
The Committee applauded thi sroposal. La.Cornmidon applaudit Bcette proposition.
Decision T:he Codtee adopted by a Dkidon: La. Commissionadopkrd Punani-
unam'naotavote the.draft recmmendakbn con- mitkb projet de rccommandationrelatifd urn
cmring the generalConventionomimmunities ConventiongB&& surlespnpnvi@getsimmuni-
snd pirihges (documentA/C.6/28) .' tks(docummt A(C.6128)
The meting roseat5p.m. La skme estlev& d 17heures.
I
DOU2ZEME SEANCE .
[A/C.6/38]
Held on Friday 8February1946at 10.30 a.m. Tenue le vendredi8 fe'wiez1946 d I0 h. 30.
Chairman:h4i. RobertoJmhz (Panama). PrisidentM. RobertoJnahz (Panama).
23, Appointment of certain Members 23. Nomindon de plusieurs me-
of the Committee as Judges of bres de la Commission irla Cour
the Internationd Court of Justice internationale de Justice
Le P~~ENT fait la d6claration suivante:
The C~uuaadlw made the- following state-
ment:
"I want to expressmy heartfelt congatula- "Je tiens Bpdsenter mesf6Iicitationssin&es
tions to the aninent jurists, Doctors Guerreh MM. Guerrero, Krylov, Hackworth, Read,
Krylov, Hackworth, Read,Wi and Zori- JViniarskitZoricic, eninents juxisetmem-
cic,manbw of thi sommittee, whohave re- bres de notre Commission,qui ont eu l'honneur
ccivedthe signalhonour of being electedby thensigne d'etre d&gnb par l'kcmblde &&ale
Gend Assemblyandby the Security Council et parle Consdl de &curit6 pour sieqer B cc
tothe fhtBenchof theworld, the Ziitemationd Tri'~una1ondial suurhe quJest!a Cour her-
Court ofJustice. Inationale de Justice.
In no better handscodd the disputes of tbIs Le rigiemenr desconflitsqui pomnr sur3gir
troubledworld be placed- Sns aotre monde troublCnesadt etre coniii
Bdemdeures mains.
Their learning and their crxccptionalmod Leur scienceet leurs erccptionneliesqualit&
qualificarionswillbe a safeguardof the principle modes scrontla sauvegardedu principede paix
of peace with justice for whithi s rpaniw- et de justice que dGad notre Organisation.
tionstands.
Unfortunately, other members of this Com- Certains autrcs manbra de notre Commisr
mittecashighlyqual3ie.dmorallyand intdectu-sion, qui po&daient des quaii6cations morales
alIy,did not attain the necessary votesin bethintellectuellestgaiane~w&s, n'ont mal-
organs of the United Nations Organization aseureusement pas obtenu, ainsique nous l'au-
weallwouldhavewished. rionstous souhaitC,le nombrede voixnkde
B leur6lectionausei nesdeuxorgana des Na-
tions Units.
-
vention, the 086dal Record of the plemeet- Convention,voir la documents&dmbhaset plbr -
-..$gr. rheirst parof-he fin&on of the Generalib de lapremihepartie de pdh doit dc' -*-' '-
hcmbly. PAssemblig&Mc ITED NATIONS
OFFICIAL.RECORDSOF THE FURSTPART OF THE
FIRST SESSION OF THGENERAZ, ASSEMBLY
PLENARY MEETINGS
THE GENERAL ASSEMBLY
VerbatimRecord
10Janua-14February1946
NATIONS UNIES
DOCUMENTSOFFICIEDELAPREMIERPARTIEDE
LAPREMIERSESSIONDEL'ASSEMBLGENERALE
SEANCES PLENIERES
L'ASSEMBLEE GENERALE
CENTRAHALLWESTMINSTER
LONDON A .
d;43/ Kev.I/Corr.1 .4/43/Ht ,'Go,
Al43IRev.l ICorr.2 d/43/Kc , Cor
and Al43lCorr.l . et A;22 Corn
[Originaltext: English] [Texteoriginalenangla:
ANNEX 22 ANNEXE22
~ E G E ~ AND IMMUNITIE OF THE UNITED I PRXVIL~GESET IMMU'NIT~DES NATION USrns
NATIONS
REPORT OF TILESIXTHCOM~E TO THE RAPPOR TE LAS&ME COMBIISSI~~
GENERA L SSEMBLY AL'ASSEMBL~ G ~?N~RALE
Rapporteur:Mr. W. E.BECKE~ Rappo'rteut:M.W. E.BECKER
(United Kingdom) (Royaurne-Uni)
The General Assembly,at its sixteenth plenary L7AssemblCegCnCrale,au cow de sa sesem,
meting held on 19'January 1946,referred tothc sCanceplCniPretenue le 19janvier 1946,a chat
Sixth Committee for consideration and report, du rapport de la CommissionprCparatoire (priri
Comm&ion, (Privileges,Immunities a+ Facilities lPges, imrnunitCset faditis B accorder B1'Ov
of the United Nations). In fulfilment of task, nisation des Nations Unies) et de lui faire rapper
the Sixt hommittee has the honour to submit to sur ce chapitre. La Sixiime Commission,s'acquit
the General Assembly the following documents tant de cette dche, a Phonneur de soume- 2
concerning the privileges and immunities of the I'Assemblie ginirale les documents suivantsqu:
United Nations:- concement les privilPgeset immunitCQ accordel
B POrganisation:
1. A resolution relating to the adoption of 1. RCsolutionrelatiBel'icjoptionde laCon.
the General Convention on Privileges and Im- vention gCnCralesur les privilPgesixnxnwlirb
munities of the United Nations, to which the A accorder &IYOrganiratio, laquelleeauntti.
textof the Conventionisannexed (Appendix I). le tme dela ConventionappendiceI).
2. A resolution relating to negotiations with
the competent authorities of the United States c2.; Risolution relative aux nr@ciatiQen.
of America concerning the arrangements re- tUnis d7AmCriqueunurles dispositioQsprendre-
quired as a result of the establishment of the B la suite de l'btabhement aux ,Etats-Unh
seat of the United Nations in the United States,dyAm6rique du siige de 170rganisation,ainsi
together with a draft Convention to. be qu'un projet de Convention destiBCsarir.de
transmitted as a basis of discussion for these base de discussionpour ces nCgociations(appen-
negotiations (Appendix 11). .dice11).
3. A resolutionon the privilegesand immuni- 3. R+5solutionsur les privilr3geset immu-
ti= of the International Court of Justice nit& dela Courinternationale de Justice(appcn-
(Appendix 111). dice 111).
4. A resolution on the co-ordination of the
privilegesand immunities of the United Nations IPgeset immunitis de POr.g&tionidesNationsvi-
and the specialized agencies(Appendix I.) Unies avec ceux desiIIstitutionsspCciaap-Ce
pendice IV).
5. A resolution relating to the insurance
against third party risks of motor-cars of the 5. Rt5solutionrelatiQeI'assurancecontIr
Organization and of members ,of the staff nisation et des membres du personnel (appen--
(Appendix V), diceV) .
6. A resolution relating to arrangements to 6. Rikolution relative aux disposiQiprC-
btransfemd or seconded for service with the qui sont@sueQlla disposition de I'Orgauisation
United Nations should not lose their accrued ou dCtachis dans ses services,ne perdent poinr
pension rights by reason of such transfer or secdu fait de ce detachement, leurs dr3cquis.G
ondment (Appendix VI) . pension (appendice VI.
All these documents, before being submitted to Avant d'avoir it6 soumii la Sixiime Corn&-
carefully by a Sub-Committee, presided over by diUC, ceB la sous-commissionprtisidee part =
H.E. J. G. GUERRER(OEl Salvador) Excellence-34J. G.Guerrero (Salvador).
They call only for cerbin short comments. 11sn'appellent que quelquesbrefscornmen&.
The discussion of the general Convention on La Convention gCnWe sur lespriviligesk-
privileges and immunitieswas particularly as- munit& a fait i?objetdame discusion parricuiih~-
ha~stive wd thotough. Thetextnow submitted to ment approfondie et minutieuse. La Cohjdoz
the General khembly was approved unanimously, a approuvh ?i l'unanimitd le tede sourj.I)-'-"
but on paragraphs (by and (c) of section 18 the sembltk gCnCrale;le dClCgudes Eta&-Uniscc?:s-
United States delegate made reservations on the dant a fait quelques riserves sur les p%gpr.p
nationalshm thtaxation and from national service6) et c) de la section 18,en faisant vaque'::
obliffatiowas a prerogative of the Congress of pouvoir d'accorder aux ressortissants dEt?u-
the United States of Amuica. Ude servicenational est une p&rogative du Co%F'
des Etats-Unis.
cialist Republic, the UkrainSnviet SodaIist Re- Les dCligatiollsde la RSS de ~i61orussic,'d~
public and the Union of Soviet Sodalt epubliu surla section 18 c) et la section 30 efwt
4clthcr In the form oa lump sum or benefits paid octroyeesen casde decks,qu'ils'agissed'unesome
by the Organizations to widows and orphans. The globale ou de versements effepis par lYOrgaha.
Sub-committee decided, without prejudice to this tionaux veuvesou aux orphehns.La sous-cornmi,.
question being taken up and ,consideredseparately sion a dCcid6qu'il serait inqpportun de fafi*.
at a later stage, thata provision to this effect rer dam la Convention gCneraleune disposition
should not be included in the general Convention. cet effet, sans exclure toutefols!a possibR.itide
prendre cette question parsuiteet de,l1exalirinR.
stpariment.
Le Rapporteur de la Sixiime Commission
The Rapporteur of the Sixth Committee places tientB la disposition de 1'Assembieinirale pour
himself at the disposal of the General Assembly lui donner toutes explicationsqu'ellf:demandenit
to give any explanationswith'regard to particular en ce qui concerne eel-tainesdxiposmonspardcu.
provisionsof the text submitted to the General As-liires du texte qui lui a Cti soumis.
sembly,that the Assemblymay desire.
APPENDI IX
The Sii Committee after having exaqined La Sixi6meCommission,ayant examinllesavan.
the respective advantages, as methods of imple- tages respectiis des deux mCthodesproposiespour
menting the provisionsof Article 105of the Char- mettre B effet les dispositionsde 1'Article1!adc
ter, of the General Assembly (a) making recom- Charte, soit celle de recommandations formu]&
mendations or (6) proposing conventions to the par 1'Assembliegintrale, soit celle de convendom
Members of the United Nations, recommends to propos6es am Membres des, Nations Unies; R.
the General AssemMyto propose to the Members commande B I'Assemblieginerale de proposeraLx
of the United Nations a general Convention on the Membres des Nations Unies une conventiongin&
privileges and immunities of the United Nations rale sur les privil6ges et immunitis des Natiom
of which the text is annexed hereto.'The Sixth Unies, dont le texte figure en annexe au prisent
Committee recommendsthat the General Assembly document. La Siime Commissionrecommande a
adopt the followingresolution: I'Assemblkeg6nirale d'adopter la risolutiosui-
vante:
"The General Assemblyapproves the annexed "L'Assemblkege'niraleapprouve le tcxteci-
Convention on the privilegesand immunities of annex6 de la convention sur les priviligeset
the United Nations and proposesit for accession immunitks des Nations Unies, et soumetccnc
by eachMember of the United Nations." convention Bchacun de leurs Membresauxfim
d'adh&on."
Com~nos ON THE PRIVILE ANDE SMMVNFRZS CONVENT IURNLESPRIVL~GES ET LESIMMUNT~
OF THE UNIIED NATIONS DES NATION USrn
WhereasArticle 104of the Charter of the United Considhant que I'Article 104 de la Chartdm
Natiom provides that the Organization shall enjoy Nations Unies stipule que POrganisationjouit,sur
in the temtory of each of its Members such legal le territoire de chacun de sesMembres,de lacapa-
capacity as may be necessaryfor the exerciseof itscit6 juridique qui lui est ntcess*pour exerca
functions and the fulfilmentof its purposes; and sesfonctionset atteindre sesbuts;
WhereasArticle 105of the Charter of the United Considhant que IYArticle105de la Charte dm
Nation provides that the Organization shall enjoy Nations Unies stipule que lyOrgankationjouisur
in the territory of each of its Memberssuch privi-le temtoire de chacun de ses Membrcs,desprivi-
ltgrr and immunitiesas arcnecessaryfor the ful- Ikges et immunitk qui lui sont ntcessains pour
filment of its purposes and that representatives oftteindre sesbuts et que lesrepnisentantsdesMa-
the Memben of the United Nations and officials bres des Nations Unies et les fonctionnairesde
of theOrganization shallsimilarlyenjoysuch privi- I'Organisation jouissent Cgalement des priviItp
lcgu and immunitiesas are necessaryfor the inde- et immunitCsqui leur sont nkcessairespour excrccr
pendent exvdse of the functions in connection avec1'0qanisation;nce leurs fonctions erapport
with the Organization; En conse'quence,par une rCsolutionadoptie:c
Consequentlythe General Assembly,by a resolu- !3 fivrier 1946, I'AssembliegtnCrale a approuvc
tion adopted on 13 February 1946, approved the la convention suivante et la proposBi'sahtsion
followinqconvention andproposesit for accession de chacun des Membresdes Nations U~ies.
byeach Member oi the United Nations.
~TICLE 1 ARTICL IE
Personnalitkjuridique
JuridicalPersonality
Section 1. The United Nations shall possess Section 1. L'Organisation des Nations UGc
juridical personality. It shall have the capacity: posslde la penonnalit6 juridique. El1 13 ~3?3-
citi:
(a) To contract; a) De contracter;
jb To acquireand disposeof immovableand 6) D'acquirir et de vendre des biensdo-
movable property; bilierset mobiiiers;
(c) To institute legalproceedings. c) Pester en justice.
ARTICL I1 .ARTICL IE1
Property,Fundsand Assets Biens, fondset auoirs
Section 2. The United Nations, itsproperty Section 2. LyOrganisation des Nations ,vnia.
and assets wherever located and by whomsoever ses biens et avoirs, quels que soient leur clege
held, shall enjoy immunity from everyformof legal leur dttenteur, jouissent de I'immunitt dc juridic-
process except in so far as in any particular case itn, sauf dans la mesure oh I'Organisatio!'J
has expresslywaived its immunity. Iis,however, expresstment renoncC dans un cas pan(cui~er.1'
undcmood that no waiver of immunity shall ex- est toutefois entendu que la mnonciationePNt
tend to any measure of execution. I s'ltendreBdes mesures d'extcution. Section 3. Les locaux de, l'organisation sont
inviolables.Sesbiens et avoirs,oh qu'ilsse trouvent
et quel que soit leur ditenteur, sont exempts de
perquisition, riquisition, confiscation,expropriation
ou de toute autre forme de contrainte exicutive,
administrative,judiciaire ou ligislative.
Section 4. Les archives de I'Organisation et,
d'une maniire ginirale, tous les documents lui
appartenant ou ditenus par elle, sont inviolables,
oh qu'ilssetrouvent.
Section 5. Sans etre astreinte Baucun contrcile,
riglernentation ou moratoire financier:
aj L'Organisation peut ditenir des fonds, de
I'or ou des devises quelconques et avoir des
comptes en n'importe quelle monnaie;
b) L'Organisation peut transfirer Iibruncnt
ses fonds, son or ou ses devises d'un pays dans
un autre ou B I'intirieur d'un pays quelconque
et convertir toutes devises ditenues par elle en
toute autremonnaie.
sont accordis en vertu de la section 5 ci-dessus;
IIOrganisation des Nations Unies tiendra compte
de toutes reprCsentations du Gouvernemcnt d'un
Etat Membre, dans la mesure oh elle estimerapou-
voir y donner suite sans porter prijudice Bsespro-
pres intists.
Section 7. L'Organisation des Nations Unies,
ses avoirs, revenus et autres biens sont:
a) ExonCrCsde tout imp8t direct. 11duneure
entendu, toutefois, que l'organisation ne pt
demander I'exoniration d1imp6tsqui ne suaient
pas en ads de la simple hunkation de ser-
vicesd'utiliti publique;
b) FxonirCsde tous droitsdedouane et prohi-
bitions et restrictions d'importation ou d'arpor-
tation BI'igard d'objetsimportis ou export&par
I'Organisationdes Nations Unies pour son q
officiel.11est entendu, toutefois, que les articies
ainsi import& en fran& ne seront pas nndus
sur le territoire du pays dans lequel ilsauront
Cti introduits,B moins que ce ne soit Bdes con-
ditions accepties par le Gouvernement de ce
Pays ;
c) ExonirCs de tout droit de douane et de
toutes prohibitions et restrictions d'hportation
et d'exportation 5I'igard de sespublications.
Section 8. Bien que I'Organisationdts Nations
Unies ne revendiquepas, en principe, PexonCration
des droits d'acciseet des taxesB la vente entrant
dam le prix des biens mobiliers ou h.mobiliers,
ficiel des achats importants dont le prix compnnd
des droits et taxes de cette nature, les Mmbm
prtndront, chaque fois qu'il leur sera possible, les
trabve anrange-
la remise ou du rernboursanent du montant deueccs
droits'ettaxes.
ARTICL I~1 ARTICL I11 *
Fditiesin respectof Communicotionr Facilitbsde communications
The United Nations shall enjoy in Section 9. LIOrganisation des Nations Unies
of eachMember,for its officialcom- pour sescommunicationsofficielles,d'un traitement ,
au moins ami favorableque le traitcment accord6
par lui B tout autre gouvmemuit, y compris sa
mission diplomatique, en ce qui conceme les prio-
ritb, tarifs et taxes sur le courrier, lle &blo-
grammes, tili~~~es, radiotClCgrarnmes, t&-
photos, communications tClCphoniqueset autm
communications, aid que sur les tarifsde presse
pour les informations ?ila pnsse et la radib. La
correspondanc~ -Xdeiie et les sum comunica-
tions officiellec-.l'Organisn5on nc pourront Em
cwsuries. Aecrzon 10. l'he Gnired Nations shall have the Section 10. L'Organisation dcs Xations c~,
right to use codes and to dispatch and receive its aura le droit d'employerdes codes ainsique
correspondence by courier or in bags, whichshall pidier et de recevoir sa correspondance par
have the same immunities and privileges asdiplo- courriers ou valises qui jouiron: des mernprivi.
matic couriers and bags. liges et immunitksque 1~sCOUnlers Ctvalisedip!o.
matiques.
ARTICL V ARTICL IV
The Representatives of Members Reprisentants des Membres
Section 11. Representatives of Members to the Section 11. Les reprisentants desMembm
principal ad subsidiary organs of the United pds des organes principaux et subsidiaim d,,
Nationsand to conferences convenedbythe United Nations Unies et aw: confCrencesconvoquCe ph.
Nations, shall, while exercisingtheir functions and les Nations Unies jouissent, durant !'exenice1:
during their jowey to and from the place of leursfonctionset au cow desvoyages a destinati~~
meeting, enjoy the following privilegesand immu- ou en provenance du lieu de la riunion, despri\i.
nitie: lPgeset imrnunitk suivants:
(a) Immunity from personal arrest or deten- a) I~~u1it6 d'mtation personnelleou?,
tion and from seizure of their personal baggage, dCtentionet de saisiede leurs bagagespenonnef
and, in respect of words spoken or written and et, en ce qui concerne lesactesaccomplisppa
all acts done by themin their capacity as repre- en leur qualit6 de rep*entants, y compris!cur!
sentative, immunity from legal proce. of every paroles et icrits, immunit6 de toute juridiction:
kind ;
(b) Inviolability for all papers and docu- b) 1,nviolabilitde touspapiers et documenti:
ments;
(c) The right to use codes and to receive c) Droit de faire usage de codeset de m.
papers or correspondenceby courier or in sealed voir des documents ou de la compondancc pv
bags; COM~ Pupar valisesscellies;
(d) Exemption in respect of thanselves and d) Exemption pour eux-mimes et pourleun
their spousesfrom immigration restrictions,aliens conjoints B lY6gar&de toutes mesufesrestrictirm
registration or national serviceobligationsin the relatives 8 l'knmigration, de toutes formdi-&
State they arevisting or throughwhich they d'enregistrement des itrangers et de toutesobii-
are passingin.the exerciseof their functions; gations de service national dans lespaysvisit&
ou traversk par eux dans .l'exercicede Ira
fonctions;
(e) The same facilitiesin respect of currency e) La mimes facilitis en ce qui concernla
or exchange restrictions as are accorded to rep- rbglementations monttaires ou. de change ~UC
resentatives of foreign governments on tam- celles accordCesaux reprisentants de gouvmc-
porary officialmissions; ments itrangers erimissionofficide temporairc:
(f) The same immunities and facilitiesin re- f) Lesmhes knmunit15~ et faditis enccjui
spect of their personal baggage asare accorded concerne leurs bagages personnelsque cellesli-
to diplomatic envoys,and also; cord& aux agents diplomatiques,et igalemcnt:
(g) Such other privileges, immunities and g) Tels autres privil*ges,immunitis et fadii-
facilities,not inconsistentiththe foregoing,as tb non incompatibles avec ce qui prictde, doc:
diplomatic envoys enjoy, except that they shall jouissent les agents diplomatiques, saufldroi:
have no right to claim exemption from customs de riclamer l'exernption des droits de do-
duties on goods imported (otherwise than as sur des objets importis (autrcs que ceuucm
part of their personal baggage) or from excise font partie de leurs bagages personnels)ou ce
dutiesor salestaxes. droits d'acciseou de taxesB la vente.
Section 12. In order to secure for the repre- Section 12. En vue d'assureraux reprisenu;?%
sentativesof Members ta the principal and subsid- desLMembres aux organa principauxetsubsiciiaifa
iaryorgans of the United Nations and to confer- des Nations Unies'et awr.confknces convoqum
ences convened by the United Nations, complete par IYOrganisationune complete libertCde p~tfr?::
freedom of speech and independence in the dis- et une complite indhpendance dans I'accom~u+.-
charge of their duties, the immunity from legal ment de leurs fonctions,I'immuniti de junolc:t=
processin respect of words spoken or written and en ce qui concerne les paroles ou les Ccriou .=
allacts done by theni in dischargi their duties actes Cmanant d'eux dans Paccornplissemerj .:~
shall continueto be accorded,notwithstanding that ieurs fonctions continuera 8 leur gtre acccrc-.
the persons concerned are no longer the repre- mime apris que ces personnes auro~t CSEC1'2s
seqtativesof &Members. lesreprisentants des Membres.
Section 13. Where the incidence of any form Section 13. Dans le cas oh l'incidence c-2
of taxation depends upon residence, periods dur- impat quelconque est subordonnCe B !a r+idc.::=
ing which the representatives of Members to the de Passujetti, les phiodes pendant lesque!la .:?
principal and subsidiary organs of the United reprisentants des Membres aup& des oTS5
Nationsand to conferencesconvenedby the United principaux et subsidiairesdes NationsUnicet25
Nations are present in a State for the discharge of cpnflrrnces convoqutes par POrganisationda 3--
their duties, shall not be consideras periods of UonsUnies se trouveront surle terntoired'unE:-:
residence. Membre pour l'exercice de leurs fonctions? .:,:
seront pas considiries comme desptkiodesde
dence.
Section 14. Privileges and immunities.are ac- Section 14. Leg privil*ges et immunitb $or..'-
corded to the representatives of Memben not for accordis aux, reprbentants des Membrescon - *
the personal benefit of the individuals themselves, ltur avantage personnel,maisdans le b+ d'ssvrr' 23
butin order to safeguard the independent exercise en toute indipendance Pexercicede let& fofctlor'
of their functions in connection with the United en rapport avec laorganisation. Par ~onseti:~':" I .._...~onrequentlya Member not onlyhas the un Membrc a non seulcment le droit, mais ic dc-
.::~tisunder a duty to waive the immunity of voir, de lever l'immuniti de son reprisentant dans
. '.-..issentativein any case where in the opinion tous les cas o&,Bson avis, I'immuniti empecherait
zE ::ember the mumv would impede ths que justice soit faite et oh elle peut &re levie sans
; ..-.:-. justice, and it can be waived without nuireau but pour lequelI'immuniti estaccordie.
,.;;dice tothe purpose for which the immunity
1 ,;corded.
;,..tiolj. The provisions of sections 11, 12 Section 15. Les dispositions des sections11, 12
: .:![arenot applicable as between a representa- et 13ne sont pas applicablesdans le casd'un repri-
; _, mdthe authorities of t+e State of whichhe is sentant visd-vis des autoritis de 1'Etat dont il est
'-:.jcnaor ofwhich he is or has been the repre- ressortissantou dont il est ou a it6 le reprCsentant.
f rT,"u\*e.
In this article the e-xpression"rep- Section 16. Aux fins du prisent article, le
. ,.r.-3ri~es"shall be deemed to include all dele- tenne "reprisentants" est considCri come corn-
. L_..deputydelegates, advisers,technical experts prenant tous les diliguis, diliguis adjoin&,
.- Pccretarieosf delegations. conseillers,experts techniques et secritak de
.iicol:C. -- . I diligation.
lemz::.
-:par r,
.$PL IT;: Fonctionnaire.:
:ri&ck::
::::ion17. The Secretary-General willspecify les catigories des fonctionnaires auxquels s'appli-
. --+&earticleand article VII shall apply. He shall quent les dispositions du prisent article ainsi que
..= Ahese categories to the General Assembly. de Particle VII. I1en soumettra la kite & I'Assem-
-:-rzita thesecategories shallbe communicated blie ginirale et en donnera ensuite comtknication
i t Governmentsof aIlMembers. The namesof aux Gouvernementsde touslesMembres.Les noms
f 2 c5cialsincludedin these categories shall from des fonctionnaires compris dans ces catCgoriesse-
.=: rotimebe made known to the Governments ront communiquis piriodiquement aux Gouverne-
i iklrmbcrs. ments des Membres.
Section 18. Les fonctionnaircs de POrganisa-
!1 i..ion 18. Officia of sthe United Nations tion desNations Unies:
i":
+i :iwordssppken or written and all acts per- les actes accomplis par eux en leur qualit6 offi-
cielle (y comprislem paroles et Gaits) ;
! imed bythem in their officialcapacity;
'bj Be exempt from taxation if the salaries traitements et imoluments versis par lYOrgani-es
cd rmoIumentspaid to them by the United sationdesNations Unies;
.'cBeimmune from national serviceobliga- tive au servicenational;toute obligation rela-
'?xi:
:d) Be immune, together with their spouses d) Ne seront pas sownis, non plus que leurs
rd datives dependent on them, from immigra- Bolcur charge, aux dispositions hitante vPimmi-
53restrictionsand alien registration; gration et aux fonnalitis d'enregistrcmcnt des
itrangen;
1 rJ Beaccordedthe sameprivilegesin respect e) Jouiront, en ce qui concerne les facilitis
! t-sofcomparableranks forming part of diplo-ffi- tionnaires d'un rang comparable appartenantc-
=tic missionsto the Government concerned; aux xkions diplomatiques accrCdities aupris
r&cnwt. I du Gouvernementintiress6 :
:bsid& ./!~egiven,together with their spousesand f) Jouiront, ainsi que leurs conjoints et.les
,nvocp+ 5dves dependent on them, the same repatria- manbm de leur famille vivant Aleur charge,
.omplir~- 1 .-:fadliticr in time of internationaleris isr des mimes facilitQ de rapatriement que les en-
Jridi&: :.=.tic envoys; voy& diplomatiques en piriode de crise inter-
its ou nationale;
smentc. ,:if Have the right to import fm of duty g) ~ouknt du hit d'imPo& en franchise
accord" I :ir furniture and effects at the time of first leur mobiiu et leurs efkts & I'occasionde leur
ssC(st'-- '"iinup th& postin the country in question. prrmiirt prise de fonctionsdans lepaysinthsi.
1 :pin 19. In addition to the immunities and Section 19. Outre les priviliges et immuni*
I ---* specifiedin section 18, the Secretq- privus Bla section 18,le SecrCtajre gCnital ettous
1 z2cmledddin respect of themselves,their spoyes concvne qu'en ce qui concerne leun conjoints etes
':?inorehilhn, hpdvilcgca and immunitz~, enfants mineun, jouiront des priviliges, irnmunitts,
j '=?dons and faaties accorded to diplomatx exemptions et facilitis, accord&, .conformknent
"3 inaccordmu with intunational law.. au bit international, aux.envoy& diplomatiques.
I :<::ion26. pddegs and :.ties arc
I '=.: toxiffid& in the interests of the United Section 20. Les pridigts et immunith sont
; "!= andnot for thepersonal benefit of the in- accordis aux fonctiomaires uniquement dansl'in-
.-.+ personnel.NLeioSecr6ta.k gGnW pourra et devrantage
''Ue-nghtandes.theduty totW&VCGen&unityhallof lever l'immuniti accordie Bunfonctionnain dans
''c%d in any case where, in his opinion, the tous lescas o&, Bsona+, cettc immunit6emp8che-
'.dr). wouldimpede the course of justice and rait que justice soit fahe et pourraetre lev& sans
waivedwithout Ijrejudice to the interests of 'porterprijudice aux inti%ts de POqpnktion. Athe United Nations. In the case of the Secretary- 1'Cgarddu SecrCtairegtniral, le Conseilde sdcu1iti
General, the Security Council shall have the right a qualitl pour prononcer I? levCedes immunitk.
to waive immunity.
Section 21. The United Nations shall co-oper- Section 21. L'Organisation des Nations Unia
ate at all times with thappropriate?authorities of collaborera, en tous temps, avec les autoritis corn.
Members to facilitate the proper administration of pttentes des Etats Membres en vue de faciliterh
justice, secure the observanceof police regulations, bonne administration de la justice, d'assureI'ob
and prevent the occurrence of any abuse in con- servation des rkglements de police et d'ivittout
nection with the privileges,immunities and facili- abus auquel pourraient donner lieu les ~rivil2~.
tiesmentioned in this article. hunitb et facilitCs CnumCrCsdans le priseRt
article.
ARTICLE vr ARTICL VEI
Experts on Missionsfor the United Nations Experts en missionspour ?Organisation
desNations Unies
Section 22. Experts (other than officialscorn- Section 22. Les experts (autres que les fonc.
ing within the scopeof ArticleV) performing mis- tionnaires visis I'articlV) lorsqu'ilsaccomph
sionsfor the United Nations shall be accorded such .sent des missionspour I'Organisation des Natiom
privileges and immunities asarcnecessary for the Unies, jouissent, pendant la durk de leur mission
independent exerciseof their functions during the y compris le temps du voyage, des priviltges et
period of their missions,including the time spent immunirCsnicessaires pour exercer leursfonctiom
on journeys in connection with their missions. In en toute indipendance. 11sjouissent en paniculia
particular they shall be accord:d desprivilkgeset immunitis suivants:
(a) Immunit fyom personal arrest or deten- a) Immunit d'arrestation pcrsonnelloudc
tion and from seizureof their personal baggage; dCtention et de saisie de l~ls bagagesperson-
nels;
(b) In respectof words spokenor written and b) Immunitd de toute juridiction en ce qui
ace done by them in the course of the perform- concerne les actes accomplis par eux au cow
ance of their mission,-unity from legal pro- de leurs missions, y compris leun parola n
cess of every kind. This immunity from legal icrits. Cette immunrti continuera 21leur irn
process shall continue to be accorded notwith- accordie mbe apris que ces personnesaumc:
standing that the persons concerned are no cessi de rcmplir des missionspour POrganisatio=
longer employed on missions for the United desNations Unies;
Nations ;
(c) Inviolability for all papers and docu-
ments ;
(d) For the purpose of their communications d) Droit dc faire usage de codeset dc rccc-
with the United Nations, the right to use codes voir dei documents et de la cormpondance par
and to receive papers or correspondence by courrier ou par valises scellies, pour lecom-
courier or in sealedbags; munications avec I'Organisation dcl Natiora
U~es; .
(e) The same facilitiesin respect of currency e) Les mimes facilitts, en ce qui concem!a
or exchange'restrictionsasarc accorded to np- rCgiementationsmonitaires ou de change qt
mentativa offoreigngovernmentson temporary celles qui sont accordics aux rephentants da
officialmission; gouvernements itrangers en mission officiGc
tcmporaire; '
(f) The same immunities and facilities inre- f) Les mgmesimmunitis et facilitk en cc ad
spect of their personal baggage as arcaccorded concerne leurs bagagespersonnelsque cellcs~1:
to diplomatic envoys. sont accordies aux agents diplomatiques.
Section 23. Privileges and immunities arc Section 23. Les privilkges et bunitis 9s:
granted to experts in the interests of the United accordis aujr experts dam I'intCgtde 1'0e
Nations and not for the personal benefit of the tion des Nations Unies et non k leur avanuz
individuak themselves.The Secretary-Generalshall personnel. Le Secritaire gCnCralpourra et
have the right and the duty to waive the immunity lever I'immuniti accord& k un expert, cia?
of any expert in any case where,in his opinion, the lcs cas o&,A son avis, cette immunitCem~6cr.t~:
immunity would impede the course of justice and que justice soit faite et oGelleYe&tre !eveG:
it can be waived without prejudice to the interests porter prljudice aux intirets de I'Organisauon
of the United Nations.
ARTICLE VII ARTICL VII
United ;VationsLaissez-Passer Laisset-passerdesNationsCTnies
Section 24. The United Nations may issue Section 24. LyOrganisati0ndes NationsU""
United Xations laissez-parserto its officials.These pourra dilivrer des laissez-passer& ses~occC.;-.
laissez-passershall be recognized and accepted as naires. Ces ~aissa-passer seront nco.nnus -:'
valid travel documents, by the authorities of ceptts, par lesautoritis des Etats Membm.cc"'
Members, taking into account the provisions of titre valable de voyage en tenant comptedn 2;'.
section25. positionsde la section25.
Section 25. Applications for visas (where re- Section 25. Les demand= de visa 'lo?=
quired) from the holders of United Nations laisscr- des visassont ntcessaires) imanant da tim:,Fq
passer,when accompanied by a certificate that they de ceslaissa-passer et accompagntesd'un ~~~~;~
are travelling on the business of the United Na- attestant que ces fonctionnakes voyagent DON .
tions, shall be deawithas speedilyas possible. In compte de lyOrgm&ation,dewant Etre tr.,&?
addition, such persons shall be granted facilities dans le plus bnf dilai possible. Enoum, da.'"
for speedytravel. cilitCsde voyage rapide seront accordies3.U" !:"'
laires de ceslaissez-passer. 1 rtCtion26, Sirniliar facilities to those specified Section 26. Des facilitis analogues B cellesqui
,iPCti 25 shall be accordedtoexperts and other sont mentionnees B la section 25 seront accordkes
who, though not thilders of United aux experts et autres personnesqui, sansitre munis
~tionsUcz ~~~olllaissez-pnser,have a certificate that they d'un laissez-passerdes Nations Unies, seront por-
.toridscorn. ,,,rnve]ling on the business of the United teurs d'un certificatattestant qu'ils voyagent pour
: faciliteb le compte de I'Organisation.
assurer 1'0'5. : sl~~~ti~ 27. The Secretary-General, Assistant Section 27. Le Secritaire giniral, les Sous-
i'ivitertvd: i ;:Rtaries-General and Directors traveIIing on Secritaires giniraux: et les directeun, voyageant
.s priviligr? ,dted Nationslaissez-parseron the businessof the pour le compte de l'organisation et munis dJun
le prixr: ; ::itedgations shall be granted the same facilities laissez-passer dilivripar celle-ci, jouiront des
. artaccordedto diplomatic envoys. mimes facilitksque les envoyis diplomatiques.
' Section 28. Les dispositions du prCsent article
stction28. The provisions of this article may , Peuvent &re appliquies aux fonctionnaires,de rang
: L.iCie.if the agreements for relationship madeed analo-me, appartenant 5 des institutions spiciali-
. Article63 of the Charter so provide. sies, si les accords fixant les relations desditesins-
le lesfor.:. titutions avec IJOrganisation, aux termes de I'Ar-
:accompk- i ticle 63 de la Charte, cornportent une disposition
des n'atior., B cet effet.
xr mkic:.
~riviligaT ‘4m-i~~VIII ART~C~ VIII
rs fonctic:. Settlement of Disputes Rdglement des dife'rends
. partinkc. Zcction29. The United Nations shall make Section 29. L'Organisation des Piations Unies
-rodsionfor appropriate modes of settlement of: devra privoir des modes de rkglement appropnis
nelle ou c- pour:
.gespcrsc::.
( i ia)Disputes arisingout of contracts or other autres difftrends de droit privt dans lesquels
. cn ce q, &mutesof a private law character, to which the l1Organkationserait partie;
x au co.;- E~tedNations isa party;
parola r: Ib)Disputes involving any official of the un fonctioMaire de I'Organisation qui, du faitut
B leur tz U:'nitNations who by reason of his official d~ sa situation officielle,jouit de I'immuniti, si.
lnes aurc:: rnsitionenjoys immunity, if immunity has not cette immuniti n'a pas eti levie par Ic Secri-
trg-dr: waivedby the Secretary-General. taire giniral.
Scction30.A11differences arising out of the terpritation ou l'application de la prisente con-
~lvntation or application of the present con- vention sera portte devant la COW.internationale
muonshallbe nfemd to the International Court de justice, B moins que, dans un cas donni, les
-&a to have recourse to another mode of settie-the parties ne conviennent d'avoir recours Bun autn
8 znt. If a diiference arises.between the United mode de r2glement. Si un diffirend surgit entrc
; Szuonson the one hand and a Member on the ]'Organisation des Nations Unies, d'une part, et
i *a hand,a request shallbe made for an advisory un Membn, d'autre Part, un avis consultatif sur
1 onm:i. tout point de droit soulevi sera demand6 en con-
hange, c-7 s :-re~ith Mcle 96 of the Charterand Article 65- formitt de I'Mcle 96 de la Charteet de lyArtic1e
i zntanu d- -ithStatute of the Court.me opinion given by 65 du statut de la COW.L'avis de la COWsera
1 n offid+ 5: Court shall be accepted as decisive by the accept6 Paf les parties Canme dicisif.
:nia.
I :senCL:0- !
I !celiesc; FINAL ARTXCLE ARTICL EINAL
I I..-$. ' Scction31.This mnventibn is submitt& to Section 31. La p6ente convention est soumise
1 I :&G ; 3~ Memberof the United Nations for accession. POW adhision ?i ~OUSles Membrcs de I'Organisa-
l~OrgalU=. tion des Nations Unies.
I r aMnw Section32.Accession shall be effected by de- Section 32. L'adhision s'effectuera par le di-
a et dm p ofan instrument with the Secretary-Generai pdt d'un instrument aupris du SecrCtaircgin&&
I dans -1 ..the Unit& Nations and the convention shall de I'Organisation des Nations Unies et la conven-
mpichm;' :?n:into force as ~wds eat& Member on the tion entrera en vigueur, l'igard de chaque Mem-
lev& u: 5:rofdepositofsat& instrument of accession, brt, B la date du dipdt par ce Membrc de son
1 lisation instrument d'adhcsion.
Srction33. The S-w-&neral shall inform Section 33. Le ~~c&t.aire gtniral infonnera '
- < 3l~b of the united Nations of he deposit tous les Mcmbres de l'organisation dm Nations
tachaccession. Unies du dtp6t de chaque adhClsion.
Strtion34. It is understood that, anin. Section 34. 11est entendu que ~OI'S~U~UIins-
-merit of accessionis depasited on behalf of any trument d'adhhion est dCpos6par un Mernbre
. '!"bcr, the Membm will be in a position undur quelconque, cel~i-ci doit itn en mm d'appli-
! " lawto give effect to the tern of thiscon- quer, en vvtu de son propre bit, les dispositions
, -.tion. deSection 35. coLa p&ente conve~tion reStCI'aen
.Scifion35. convention shall continue in vigueur entn l'organisation dts Nations Units et
'T as bmecjn the Unit& Nations and every . tout Membre qui auradiposi soninstr~~~~td'ad-
'!~berwhit&has deposited an instrument of ac- hision, tant que ce Membn sera Mambn de 1'0r-
'yiloforsolong as &at Member remainsa Mem- ganisation Ou jusquY& ce qu'une convention @ni-
-:oconventionhasabtcns,appduntilby the &ncral rale nvisk ait Cti approuvie par 1'AssemblCg ein&-
?mbly and that Me has become a party to rale et que ledit Membre soit devenu partie& cette
':'Wscd convention. derniire convention.
36. The S-tary-Geneml may con- Section 36. LC S~Crhire @niral pourra con-
! .& withany Mcmk or ~~bn., supplemen-. olxre, avec.un ou plurieurs Membres, dn accords
*' agreements,adjusting the provisions of this , : Iditio~tk, amknageant,en ce qui concame ce
649 convention so faras that LMemberor those Mem- Membre ou ces Membres, les dispositionsde la
'bers are concerned. These supplementary agree- prisente convention. Ces accords additionnelfR.
Penb shall in each case be subject to the approval ront dans chaque cas sournis A I'approbation d,
of the General Assembly. lYAssemblieginkale.
APPEND= 11 APPENDIC I 1
The Sixth Committeerecommendsthat the Gen- La Sixi&meCommissionrecommande i I'&aem.
eral Assembly adoptthe followingresolution: blie ginirale d'adopter la rtsolution suivante:
1. The General Assemblyauthorizes the Secre- 1. L'Assernblie giniale autorise Ie SecrCtah
tary-General (with the assistance of a committee giniral (assisti d'un comiti composi de personna
composedof personsappointed bythe Governments disigntes par les Gouvernementsdespayssuivants:
of Australia, Belgium,Bolivia,China, Cuba, Egypt, Australie, Belgique, Bolivie, Chine, Cuba, Egypte,
France, Poland, United Kingdom, Union of Soviet France, Pologne, Royaume-UN, Union des RCpu.
Socialist Republics) to negotiate with the compe- bliques socialistes soviitiquA) nigocier avecla
tent authorities of the United States of America autoritk compitentes des Etats-Unis dYAmCrique
the arrangements required as a result of the estab- tous arrangements nndus nicessaires par I'iu-
lishment of the seat of the United Nations in the blissement du sit3gepermanent de I'Organisation
United States of America. des Nations Unies aux Etats-Unis dYAmirique.
2: The followingdraft conventionis transmitted 2. Le projct de convention ci-joint est transmk
by the General Assemblyto the Secretary-General par IYAssemblieginirale au Secritaire gintd .&
foruse in these negotiationsas a basisof discussion.de servirde basede discussionauCOW desnigocin-
tions.
3. The Secretary-General shall report to the 3.- Le SecrEtaire ginbral fera rapport, B h
General Assemblythe results of these negotiations. dedme partie de la premiZresessionde PAsscm-
blie ginbrale, sur les dsultats de ces nigociationr
4. Any agreement,apart from purely temporary 4. Tout accord conclu & la s&te de cesnigocin.
agreements with the competent authorities of the tions, B I'exception d'accords purcment temp
United States of America, resulting from these raires, avec les autonth compCtentesdes Etaa-
negotiations,shall be subject to approval by the Unis d'birique sera subordonnC21l'approbation
General Assemblybefore being signed on behalf of de PAssemblieginirale avant d'itre sign6au nom
the United Nations. desNations Unies.
CONVENTI OEN~EEN TBE UNITE DATION SM)
THE GOVERNMENT OF. THE UNITED STATES OF
AMERICA
(Thisdrafthas beenprepared on the assumption (Ce pmjet a it6 conp dans.l'hypoth&cqu'au-
that there will be no private persons living within cune personne privie ne risidcrait dans la zote
the zone containing the seat of the United sera Ctabli le siZgede 1'OrganisationdesNations
Nations.) Unics.)
THEUNITEDNATIONS AND THE. GOVERNMENT
OF THE UNITED STATES OF AMERICA:
Desiring to conclude a convention for the pur- Disirew de conclure une convention en tue
pose of carrying out the resolution adopted byhe d'assurer I'exicution de la t5solution adoptit px
General Assembly .......................establ... PAssembIieginirale .....................t..ir.......
the seat of the,United Nations i....................le siiigedes Nations Unie& ............................
and to regulate questionsarisinasa result thenof: rigler les questionssouleviespar cette dicision:
Have appointed as their plenipotentiaries fthis Ont signi, Bcet effet, comme pibnipotentiaim:
purpose :
The United Nations .................................LYOrganisationdes ~atio& Unies .................
Secretary-General Secr&tair ednir:;
The Government of the ]LeGouvernement des
United St;:es of America...................................nis d9Am6rique ....................................
who have agreed as follows: qui sont convenusde ce qui suit:
ARTICLE I
Definitions
Section 1. In this convention: Section 1. Am term= de cette conventioo:
(a) The expression"zone" means the area re- terlitoire mention&zone"fa section 2 ainsc.2:
ferred to in section 2, including any additions toutes les adjonctions qui pomnt iui t:-
toit; faites;
(b) The expression"law of the United States b) L'expression "ligislation de~ Etats-Cr.
laws,however designatede;eral, state, and local d'Amirique" s'applique aux lois fCdirales2~
leur d6nomination;x lois locales quellequ:c::
(c) The expression "Govenunent of the Unis d'AmCriqueYs "''applique 21un ttat,uZ*i
competent state authority wherever the contexta
SOrequires; I'autoriti compbtente d'un itat selonle a::-
texte!;
(d) The expression "courts of the United d) LYeupression%bunaux des ~tatr-fi~i
courts;of America" includes federal and state d'AmiriqueWs'applique am tribu~zauxf6dirnq:"
et d'itats; 8 (E) The expression "United Yations" means €1 L'espression"Nations Unies" dCsigne1'0r-
i~~ International Organization established by I ganisation internationale crCtepar la Charte des
I he Charter of the United Xations. Nations Unies. ?'
de !
! ARTICL E 1 ~~~ICLE I1
The United NatzonsZone Zone desNationsUnies
section2. The seat of the United Nations shall Section 2. Le sikge des Nations Unies sera
, the area situate.................an..m.arked I'itendue de territoire situi.........................
.- . on the map which forms annex I. Additions marquie en rose sur Ia carte qui constitue I'an-
bemade later to thi srea in accordance with nexe I. Des adjonctions pourront stre faites ulti-
pmvisionsof section 8. rieurernentB ceterritoire, conformiment aux dispo-
i sitionsde la section8.
sEction3. The Government of the United Section 3. Le Gouvemement des Etats-Unk
Fatesof America undertakes, on the entry into d'hirique s'engage B mettre I'Organisation des
:grcof thisconvention, to cause to be vested in Nations Unies (au moment de l'entrie en vigueur
.-. a ;, United Nations, possession hediatkly and de la prr2senteconvention) immidiatement en pos-
? -d ownenhipas soon as possibleof al land inthe l'annexe I, ainsi que de tous les bgtiments qui s':;
; ;aredthereonat the time of transfer.buildings sit-trouveront au moment du transfert, et ae lui faire
remettre la pleine et entibe propnit& de ceux-ci
.I aussitijt que possible.
i SIction4 The Government of the United d'hirique 4.assumera le plus tat possible la res-
of Amvica shall be responsible for qro. ponsabiliti des mesures d'expropriation et de corn-
srwndnasnpossibleallinttltsts in land and build- pensation qu'il pourra y avoir lieu de prendre B
qsconveyed tothe United Nations. l'igard de tous Ies intirsts liis au terraetnaw
batiments cidis 2 I'Organkation des Nations
Unies.
Section5. Having rrgard to section 4, the Section 5. En accord avec la section 4, I'Or-
CnitcdNations shall pay to the United States of ganisation verseraam Etats-Unis d'hirique un
.huica a fair price for any land and buildings prix equitable pour le terrain et les Mtimenainsi
ronvqed to the United Nations. The amount so cidb. Cette sommesera portie au cridit des Etats-
able shallbe credited to the United States of Unk dans lescomptesdesNations Unieset sera di- +
.bcricainthe accounts of the United Nations and falqute, au coun d'une pi5iode dC-&, dts
besetoff,during such periodas may befixed, contributions dues par les Etats-Unis daAmSrique.
~wt contributions due from the United States A difaut d'accord, ce prix et cette pGiode seront
ciAmerica .n default of agreementthisprice and diterminb par un expert dCsignipar le PrSsident
'& period shall be determined by an expert de la Cour interntionale de Justiu.
dected by the President of the International ,
CourtfJustice.
Section6. The United Nations shallhave or- Section 6. L'Organisation des Nations Units 1
dusiverights over the subsoil of land conveyed to aura un droitexclusifsur le sous-soldterrainainsi
:andin particular the right to make construc- cidi et, enparticulicr, le droit d'yfain toute cons-
aonundvgroundand toobtain therefrom supplies truction soutcrraine et d'tirersonapprovisionne-
water.It shallnot, however, have the right to ment en eau. Toutefois, elle n'aura pas le droit
qloit minerals. d'en exploiterles ressourcesminirales.
Section7. The United Nations may establish Section 7. L'Organisation des Nations Uces
hthezoneany type of installation which it d- pourra construire dansla zone tout genre d'instal-
=%msarfyor the purpose of its work, and in par- lations qu'elle estimera nCcessai%e Paccomplisse-
may establishits own radio telegraph send- taller ses propres stations hettrices et riceptrices
detype,and telephoto services. The Unitedasting, de radiotiligraphie, y compris les services de
Sationshall make arrangementswith the Inter- radiodiffusion, de ti1Ctypieet de ti16photographie.
"tionalTelecommunications Union with regard L'Organisation se mettra d'acwrd avec ]'Union
" Wavelengthasnd other similar matters. internationale des tC1Ccommunicationsen ce qui
conceine Ies longueurs d'ondes et toutes autres
questions analogues.
Section8- The Government of the United Section 8. Le Gouvernement des Etats-Unis
'a@~fAmcrica shall, at the request of th+- d'AmCdque, 1 la rcqu6tc du Sedtaire @nM
Y-Gtneralactingin pursuance of a resolutaonof agissanten exicution d'une r&lution de 1'Assun-
heral Assembly, cause to be vested in the blk gin&.de, mettra I'Organisation inmidiate-
Wted Nations, possession immediatelyand fvll ment enpotradon de tous terrainssupplhentaircs
%-P as soon as possible over such further qui seraient nicessaires pour la construction d'un
ad asmay be requiredfor the purpose of con- .airodrome, d'une gare de chemin de fer ou d'une
Qc% anairport, railwaystation, orradio tele- station de tiligraphie sansfil,ou pour toutes autres
FP~ station or for such other purposes as may fins utiles B I'Organisation et lui fua remettre la
<'cl¶uiredby the United Nations. The provisions pleine ct entiin propritti de ceux-ci aussit6t que
$?td.s 4,5 and 6 shallapply ., land so con- Cgalunent am terrainstiainsi,transfir&.appliquuont
wrdance with section 8 not being contigu- plicationdes dispositions de la section 8 ne serait
.;''Othenmainder of thezone, theGovernment pas contigu au reste de la zone, le Gouvvnement
'theudd States of America.shallguarantee des EtatrUnis d'AmSriquegarantitala IibertC ds -
651. unrmpeded c0rnmun:cauon ~rid iraniit between i conlmunicarions et de ia circuiation rntre its&-
parts of the zone. I versesparties de la zone.
i
ARTICL IE1 ARTICL1 E11
Law and Authority in the Zone Zone: Droit en vigueuret autoritkcompktente
Section 10. The zone, including the air space Section 10. La zone, y compris son espace
aboveit and the subsoilbelowit, shallbe inviolable. aCrienet son SOUS-sosle,ra inviolable.
Section 11. Save as otherwise provided in this Section 11. Sad dispositions contraires de !,
convention,the zone shall be under the controland prCsente Convention, la zone sera placCesous ie
authority of the United Nations. contrcileet lYautoritCde l'Organisation.
Section 12. Without prejudice to the general- Section 12. Sans porter atteinte au caracterr
ity of section 11, the Government of the United gCnCra1de la section 11, le Gouvernement d,
States of America renounces jurisdictionover any , Ehts-Unis dYAmCriquerenonce B sa juridiction
matter relating to entry into the zone and to the pour tout ce qui concerneI'entrkeet Iesconditionr,
conditions under which personsmay remain or re- de sijour ou de residence dans la zone aimi qu't
side there, and over any matters relating to the la construction ou la dimolition de b;itiments ;
construction or removal of buildings in the zone. lYintCrieudre la zone.
Smtion 13. Officersor officialsof any authority Section 13. 'Les officiersOu foncti0maires da
autorites administratives, judiciaires, militakou
whether administrative, judicial, military,or police, de police du territoire des Etats-Unis d'AmCrique
ne pounont entrer dam la zone pour y exev-er
duties therei texcept with the permission of and leurs fonctions qu'avecI'autorisationdu Secpj~ai~~
under conditions agree.dby the Secretary-General. ginCral et dam des conditions approuvC~ par
The service of legal process, including the seizure celui-ci.L'exicution desactes de pmeidurr, ycorn..
of private property, shall take place within the pris la saisiede biensprivCs,ne pourra avou liea
zone under conditions approved by the Secretary- l'intirieur de la zone que dans des conditionsap
General. prouvies par le Secritaire giniral.
Section 14. Without prejudice to the provi- Section 14.. S& pdjudice des dispositions qui
sions which are contained in annex 11 and subse- figurentB l'annexe I1 et gui seront inscriparla
quently in the General Convention referred to in suite dans la conventiongCniralevisie la section
section 32, and which,relate to the immunities of 32, concernant les immunitis desfonctionnaicsde
officialsof the United Nations and of the repre- IYOrganisationet desreprisentants desEtatsJlem-
sentatives of Members, the United Nations shall bres, IYOrganisationne pemettra pas que la zonc
not permit.the zone to become a refuge either for serve de refuge Bunc personne contrc laquelleun
persons who arcavoiding arrest under the law of mandat d'arrit aura it6 lanci en vertu de laI&$-
the United States of America or are required by par le Gouvernement des Etats-Unis d'Amiriquemk
the Government of the United States of America pour etreextradie dans un autn pay, ou B ucc
for extradition to another country, or for persons personne cherchant Bse soustraire BI'action de 13
who are endeavouring to avoid service of legal justice.
process.
Section 15. Subject to section 16, the law of Section 15. Sous &enre des dispositions pri-
the United States of America shall apply within vues Bla section 16, la 16gislationdes Etats-Unis
the zone, and in particular the ordinary civil and d'hCrique sera applicable BPintCrieud re lazone.
criminal law. notamment en ce qui concerne le droit civil et :c
droit pCnal.
Section 16. The United Nations may, enact Section 16. L'Organisation des NationsUnia
regulations making provisionof an administrative pourra Cdicter des niglements privoyant des rze-
character for the zone. Any such regulation shall sures de caractire administratif, applicables1 1;
prevail over anyprovisionsin the lawof the United zone. Cesriglements prhaudront contrcroutes +-
States of America which are inconsistent with it. positionscontraires de la ligislation desEtats-U:J?.
It is agreed that within the zone the protection dYhCrique. I1 est entendu quYBl'intirieur de k
afforded by the Constitution of the United States zone, rien ne viendra restreindre Ia libertfifiii-
to persona1 Iiberty and to the basic human free- viduelle et les libertCsfondamenraies de pmir -:
doms of expression and worship shall not be less- de culte garantis par la Constitution des E-5-
end, and no form of racial discriminationshail be Unis rt aucune discrimination raciale ne seraFCr-
permitted. mise.
Section 17. The courts of the United States of Section 17. Sans prhjudice des disposirionsic
America shall, without prejudice to any provisions l'annexe I1 et par la suite de la Convenaon ;cn=-
of annex I1 and subsequentlyof the General Con- raie visiei la section 32, les mbunaux desEm-
vention referred to in section 32, have jurisdiction Unis d'hirique serontcompttents pour
over acts done and transactions taking place in the des actes accomplisou des.transactionseffecru-
zone, in the same manner as they have over simi- B l'intirieur de la zone, dans la mesureoh y.
lar acts and transactions taking place outside the raient cornpitents pour connaitre d'actes ot~ cc
zone. transactions analogues, i'extirieur de la zonc.
Sectim 18. The courts of the United States of Section 18. Leb tribunaux des Etao-CrA
Amaica, when dealing with cases arising out of d'hirique lorsqu'ilsauront Bconnaitre d';lfid
or rciatingto acts done or transactionstaking piace nies BI'occasion d'actes accomplis o,u detmC-
in thezonc,shd take cognizanceof the regulations tions effectuies BlYintCrieudre la zone,ou se.TJ.?
enacted by the United Nations under section 16, portant B celles-ci, tiendront compte des EZ:?
though they shall not be obligcd to inflictpenalties ments idictis par POrganisation conformimcnt
for infraction of such regulations unless the Gov- 1: section 16, bien qu'ilsne soient pas !:nus
ernment of the United States of America has fhger des peines pour infraction codse 5 len. 4 a~eed to these regulations before the infraction contre de ces riglementr imoins quc le Gouveme-
,,a committed. ment des Etats-Unis d'Amirique n'ait reconnu les-
t \ dits riglements avant que l'infraction n'ait Cti
commise.
ARTICLI EV ARTICL IE
Communicationa snd Transitto andfrom the Zone Communicationet circulation irdestinationet en
provenance de la zone
section 19.The Government of the United Section 19.Le Gouvernement des Etats-Unis
quate means of communication to and from thes ade- dlAmtrique garantira i tout moment des moyens
zonethrough the territory of the United States of la zone, et pour en sortir, Btravers le territoire des
.berica, forthe passage of persons. the transmis- Etats-Unis d'Amirique pour ies personnes, la cor-
;ionof postal correspondence and telegrams, and respondance postale, les tilCgrammes et letrans-
he transport of goods required for use and con- port des marchandises destinte& &treutilistes ou
j sumptionin the zone. consommCesdans la zone.
: 4 Section 20. Representatives of Members, irre- Section 20. Les reprksentants des Etats Mem-
Governmentand theelaGovemment of the Unitedtheir bres, quel que soit ]'&tatdesrelations existant entre
States of America, officials both of the United Unis dlAmCrique,les fonctionnaires de I'Organka-
Sations and of the specialized agencies, and the tion et des institutions spiciaIisCeainsique les
familiesof these representatives and officiais,shafamilles de ces reprisentants et de ces fonction-
atalltimesenjoy the right of unimpeded and safe naires, auronten tout temps le bit de traverser
transithrough the territory of the United States librement et en sCcuritCle territoire des Etats-Unis
ofAmericato and from the zone. dlAmCriquelorsqu'ilsserendent dans la zone ou en
reviennent.
newsagencies,whether press, radio, or films,and agences d'infonnations, qu'il s'agissede la prase,
of non-governmental organizations recognized by de la radio ou du cinCma, insique lesnprtsentants
theUnited Nations for the purpose of consuitation,des organisationsnon gouvunementales, reconnues
shalalso enjoy the rights referred to in section 2par IYOrganisationsdes Nations Unies aw find se
consultation jouiront igalement des droits difinis
: h la section20.
Section22.Immigration and other regulations Section 22. L'application des 6glupents con-
theentry and residence of foreignem,shallnot beng cernant I'immigrationet de tousautrts riglements
appliedin such a manner as to interfere with the ttrangers, en vigueur aux Etats-Unis d'Am&que,e des
rightsreferred to in sections 20and 21Visa se- ne devra en aucun cas porter atteinte aux bits
quiredby the persons referred tin those sections di£inis aux sections 20et 21.Les visasniccssai.
shalbe granted without charge, without delay and aux personnes inurnides dans ces sections scront
tsithoutrequirement of personal attendance for theaccord& gratuitunent, sans retard et sans obliga-
issueof the visa. tion pour IyintCresde se prkenter persondement
lorsde la dilimce dudit visa.
Section 23. Le ~0~v~Unent des Etats-Unis
Stateof America shallgive or cause to begiven dYAmiriqueaccordera oufera accorder desfadlitis
farilitiesfor the issue of visasto, and for the usec~url'octroide visasct l'usagede moyemsde trans-
ofthe available means of transport by, pefions port aw personnes (autres que ceuesqui sont men-
corningfmm.abro& (other than those referred & tionnCesaux sections20et 21)venant de 1'Ctra.n-
insections20and 21) who desire to &it the zone. ger et disirant se nndre dans la zone. Le Secd-
TheSecretary-Generalof the United Nations and tairegCniral de lYOrganisationet le Gouvernement
theGovernmentof the United States of America des Etats-Unis dlAmirique, siI'un ou I'autre en
w, at the request of either of them, enter into exprime le dtsir, devront proc6derB un Cchange
discussionwithngMf to the application of this de vues au sujet de Papplication de laprisente
xction. section.
Section24. The provisions ofthi article shall Section 24. Les dispositions duprisent article
notPnvent the Government of the United States ne pourront empicher le Gouvemement des Etats-
of fm takingprecautions in the interests Unis de prendre des pricautions nicessak iila
0.national security, provided that such precau- sCcuritCnationale, sous&ewe que cespricautions
Ponsshallnot have the effectof interfering with ne puissent avoir pour effct de porter atteinte aux
therightsreferred to in sections 19,and 21. droits difinis aux sections 19, 20et 21.
ARTICL VE
ResidentRepresentativesto the UnitedNations
Section25. Persons accredited ta the United Section 25. Lts penonnes accridittes aupris de
Sationsby Munbers as resident representatives IYOrganisation,p-q-1s .Eta& Mem=T cornmy:re-
and their staffs,whether residinginside or outside@sentants permanents et leur persod; qu'ils
mezone,shall be recognized by the Clovemment &dent B rinttrieur ou B PartCrieurde la zone,
0.the United States of America as entitled on its seront reconnus par le Gouvernancnt ds Etats-
-tory tothe same privileges and immunities as Unis dYAm&quecome ayant droit, surle terri-
bt ~vtrnment accords to the diplomatic envoys toire de ce pays, aux priviligwet immunitis que
'CQediteto it, and the staffsof these envoys. .:e goui-ernement accorde aux diplomates accn5-
: itis auprC: de lui et Bleur personnel. ARTICL EI ~R~CLE VI
PoliceProtection ofthe Zone Mesuresde police destinies riassurerla protaction
de la zone
Section 26. The Government of the United Section 26. Le Gouvernement des Etats-Unis
States of America shall cause to be provided on d'hirique fera prendre, am limites de la zone,
the boundaees of the zone such police protection des mesuresde police ntcessaircsBla protectionde
for the zone as isrequired, and shall be responsible celle-ciet aura la responsabiIitCde veiller ceque
for ensuring that thetranquillity of the zoneis not la tranquillitC de la zone ne soit pas troublpar
disturbed by the unauthorized e'ntryof bodies of l'entrke, sans autorisation, de groupes venandc
persons from outside or by disturbances in its im- I'extCrieur,ou par des dtsordres dans le voisinage
mediate vicinity. immbdiatde la zone.
Section 27. If so requested by the Secretary- Section 27. Sur la demande du SecrGtairr
General, the Government of the Unitcd States of gCnGral,le Gouvernement des Etats-Unis veillem
Amuica shall cause to be provided a suflicient B fournir les forces de police, qui pourraie2tn
number of police to perform duties inside the zone n6cessaire.spour assurcA,IYintCrieudrela zone,le
for the preservation of law and order therein, and respect de la loi et le maintien de I'ordn et expul-
for the removal of persons whn have committed ser les personnes qui auront commis,seront soup-
or are suspected of having committed or of being 5onnCesdyavoircommis ou seront sur le point de
about to commit offences,including infractions to cornmettre des icfractions, y compris celIesaw
the administrative regulations of the United r2glements administratifs de lYOrganisafion.
Nations.
- A~nc~z, VII ARTICL VEII
i ) ,.*' PublicServices.for and the Amenities of the Zonr Servicespublicsetagre'ments de latone
Section 28. The Government of the United Section 28. Le Gouvemment des Eta&-Unis
it possessAteensure that the zone shallbe supplied 'd'Amiriquz fera usage de tous lespouvoks dont ii
dispose,pour fain en sorte que la zone soitdotie,
. ices (including electricity, water, gas, post, tele-nCcessaircs(en*onsautres lyt51ectriciI',eau,lgaz,
phone, telegraph, drainage, colIection of &e) les services postaux, t616phoniques et tiligra-
. and that these servicesshallnot be interrupted. In phiques, lY6vacuationdes eaux et 1'enlP.vemendtes
caseof any intermption or threatened interruption ordures) et que ces services fonctionnent sans in-
of any of these services, the Government of the terruption. En cas d'intcrruption ou de menace
United States of America wilI consider the needs d'intemption de Pun quelconquc de ces services:
of the zone as beingof equal importance with the le Gouvemanent des Etats-Unis d'Amiriquecon-
asqtial suvices of the United States Government sidCreraque les besoins de la zone sont d'uneim-
its& Consequently, in that event it willtake all portance Cgale B celle des services essmtielsdu
those steps which it would take in case of inter- Gouvernement des Etats-Unis I&-mime. En con-
ruption or threatened intermption of these s~- siquence, il phndra, dans cette Cventualiti,toutcs
- vices to the essentialDepartments of the United les mesures qu'il adopterait en cas gintenuption
States Government to ensure that the work of the ou de menace d'intemption de ces servicespour
United Natious isnot prejudiced. les administrations essentielles du Gouverncment
des Etats-Unis, ah de veiller Bce que lestravaus
des Nations Unies ne soient pas entravk.'
Section 29. The Government of the United Section 29. Le Gouvernement des Etats-his
State of America shalb le responsiblefor ensuring dYAmCrique veilleraB ce que I'usagequipounait
that the amenities of the zone are not prejudiced Etre fait des terrains avoisinanla zone, ne puis*
and the putposes for which the zone isrequired en aucun cas porter atteinte aux agn%nen~ quc
arc not obstructed by any use made of the land in comporte la zone et aux fins awrqudes elle st
its vicinity. destinCe.
ARTICLE VIII ~TICLE VIII
Mattersrelatingto the operationof Questionsrelatives6Papplicationde la concznr:o,:
this Convention
Section 30. The Secretary-General and the Section 30. Le Secritaire gCnCralct !e Gu-
Gov~nment of the United States of America shall vernement des Etats-Unis d'Am&ique se ne::ro:::
settle by agreement the channel or channels d'accord sur les voies par lesquellesse fe13;c:.
through which shallbe conducted correspondence respondancerelative BPapplicationdesdisposidoc:
dating to the applicaticn of the provisionsofthis de la pflsente convention et aux auues quesaorJ
convention and to other questions affecting the intiressant la zone. Le Gouvernement des EW.
zone. If the Secretary-General sorequests,theGov- Unis dQignera aup& du SecrCtaiff ginid. t:
emment of the United States of America shall celui-ci en fait la demande, un reprisentant+ijc'
appoint a special representative for the purpose cia1char$ d'assurcrla liaison.
of liaison with the Secretary-General.
Section 31. In sofar as the fulfilment of this Section 31. Dans la mesure oG Pexlcution cr
conventionrequirescooperation and action by any la prCscnte convention nktssite la coopiradon,I'!
stateor other non-federal authority of the United I'intervention d'un Ctat ou d'une autre aut1':::-
States of America, the Government of the United non fidhle des Etats-Unis dYAmCriquel,e G\jc.
Sbt~ will conclude with that state or authority vernement des Etats-Unk conclura avec cet ':;:
such agreements as arc necessaryfor thi purpose. ou cette autoriti Ies accords nicusaue~ J .':
, . The conclusion of these apc~~~ents,together with .&et. La conclusion de ces accords, de mgme 9-'
the enactment of any necessary legislation by the l'adoption de toutes mesuns l@latives nCcessar.'
before the notice is given which is required under avant la notification que IeGouvernementintef:''fi
section 35 to be given by the Government of the .Etats-Unis dYAmiriquCesttenu de faire, confcm:c*
i
Gr;d CnitcdStates of .America before this convention ment Bla section35,avant que la prisente conven-
* enteninto force. tion entre en vigueur.
~RTIcLE IX ARTICL IE
Relation between this Convention and the Rapports cntselaprisente convention et
General Convention la convention ge'nirale
Section 32. Until the Government of the Section 32. Lu dispositionsde l'annexe I1 se-
~:J'niStates of America becomes a party to the ront applicables entre I'Organisation des Nations
GeneralConvention relating to the privileges and Unies et le Gouvernement des Etats-Unis d'AmC-
irnunities of the United Nations, the provisions rique jusqu'i ce que ceiui-d devienne partie& la
ofannex I1 shall apply between the United Na- convention gintrale concernant les privil2ge.set
tionsand the Government of the United States of ront alors remplades par celles de la convention
$aced by the provisions of the General Conven-re- gknirale qui demeurera en vigueur aussilongtemps
on , hich shall continue in force so lonasthe que la prisente convention restera applicable.
presentconvention remainsin operation.
Section 33. The provisions of thi sonvention Section 33. Les dispositionsde la prisente con-
f shalbe complementzy to the provisions of the vention seront complimentaires des dispositionsde
GeneralConvention and, until the Government of la convention ginirale et: jusquYce que le Gou-
rheUnited States of America becomes a party vemement des Etats-Unis devienne partie B celle-
tothe General Convention, to the provisions of ci,desdispositionsde l'annexe11.
annex11.
Section 34. In so far as any provision of this Section 34. Lorsqu'une disposition de la pri-
i conventionand any provision of the General Con- scnte convention et une disposition de la conven-
! ) vention(or of annex I1 asthe case maybe) relate tion gin6rale (ou de l'annexe 11, selon le cas)
tothe samesubject matter, the two provisionsshall,auront trait au meme sujet, lesdeux dispositions
svhereverossible, betreated as complementary, so seront considirtes, autant que possible, cornme
that bothprovisionsshaIlbe applicable and neither complCmentaires et applicables toutes les dew;
shallnarrow the effect of. the other; but in any aucune d'entre ellesne limitera efFetsde I'autrt,
caseof absolute conflict, the provisions of this mais en cas d'oppositionirrClductible,les disposi-
conventionshallprevail. tions de la prCsente convention privaudront.
ARTICL X E ~CLE X
Final Provisions Dispositions finales
Section 35. Ti& convention, having already Section 35. La prCsente convention, dij& ap-
been approved by a resolution of the General prouvte par une r+iolution de PAssemblug4n6-
Assemblys,hallenter into forcas soonasthe Gov- rale, entrera en vigueur aussitiit que le Gouverne-
ernmentof the United States of America notifies ment des Etats-Unis d7Amirique aura notifie au
the Secretary-General that it has all the powers Sedtaire gCnCralqu'il dispose de tous les pou-
ntcessaryto fulfil the provisionsof the convention.voirs nicessaim pour exCcuter les stipulations de
The Governmentof the United States of America d'hiriquetioprendrt toutes les mesures utiles pour
thisnotificationas sooaspossible,and in any casee pouvoir,fain cette notification dans le plus bref
notlater than.................................... d6iai possible,et, en tocas, le..............................
au plus tard.
Section 36. La pdsente convention daicurera
scat of the United Nations is en vigueur aussi longtemps que le sii?gede 1'0r-
territory of the United States of ganisation dts Nations Units restera sur le tem-
toin desEtats-Unis dYAmtrique.
Section 37. The seat of the United Nations Section 37. LC siegede IYOrganisationdes Na-
tionsUniw ne sera transfCr6hors du temtoire des
Etats-Unis dYAmiriqueque si I'Oqpnisation en
d6cideainsi.
Section 38. Si le siige de I'Organisation est
dtri hors du twitoh des Etats-Unis d'Arn6-
ent of the United States rique, le Gouvernunent des Eats-Unis d'Am&ique
pay to the United Nations an offrira aux Nations Unies une somme Cquitablc
equitablesum for the land in the zone and for all pour lesterrains de la zoneet toulesMtimentset
buildingsand installations thereon. An expert, installations qui s'ytrouvent. En cas de d6saccord
nominated by the President of the International entre lesparties, unexpert disign6 par le Pdsident
Courtof Justice, shalldecide, in default of agree- de la Cour internationale de Justice fixera cettt
ment between the parties, what sum is equitable, some, en tenant compte:
a) De la valtur que prisentnont alors pour .
land, buildings and installations; les Etats-Unis d'htrique les terrains, blitiments
et installations; et
the United Nations 6) Des d6penses encourues par les Nations
erecting the build- Unies pour l'acquisitiondes terrains et la cons-
tructiondcs blitimentset installations.
ncc between the United Section39. Tout diffknd entre I'Organisa-
nt of the United States 1 tion et le Gouvernement des Etats-Unis dYM-
interpretation or appli/ rique. au sujet de Pinterpdtation ou de I'applica-
r of any supplementary tion de la prisente convention, ou encore de tout
is not settled by 1 accord ou arrangement cornpYmentai~, s'il n'at negotiation shall be referred to the arbitration of pas rCglCpar voie de nigociation, sera sourniB la
an umpire appointed for the purpose by the Presi- dicision d'un arbitre dtsignl B cet effet par le
dent of the International Court of Justice. Prisident de la Cour internationale de justice.
Section 40. Either party may ask the ~enkra~ Section 40. Chaque partie pourra prier 1'~~.
Assemblyto request of the International Court of semblie gintrale de demander B la Cour interna-
Justice an advisory opinion on any legal question tion juridique surgissant autoursde la procidureues-
arising in the course of the proceedings referred prtvue B la section 39. Aussi longtemps que cet
of the Court, an interim decision of the umpirenion avisde la Cour n'aura pas it6 rep, lesdeux parties
shall be observed by both parties. Thereacfterthe se conformeront B toute dicision provisoire dde
urnpin shall render a final decision,having regard I'arbitre. Ensuite, celui-ci rendra une dicision dt-
to the opinion of the Court. finitive en tenant compte de I'avisde la Cour.
IN WITNESS THEREOF THE ABOVE-MENTIONED EN POI DE QUOI LES PL~NIPOTENTIAXRES SUS-
PLENIPOTENTIAR~ES HAVE SIGNED THIS CONVEN- MENTIONN~S ONT SIGN& LA P~SENTE CONVEN-
TION : TION:
DONE~Rls ........... OF .............AT.............AIT A ....................E...................................
IN DUPLICATE. EN DOUBLE EXP~D~N.
ANNEX I ANN= I
MAP CARTE
(Not reproduced) (Non reproduite)
II ANNHE 11
ARTICL IE ARTICLIE
Juridical Personality Personnalitk jundique
Section 1. The United Nations shall possess Section 1. LYOrganisationdes Nations Unies
juridical personality. It shall have the capacity: posshde la personnaliti juridique. Elle h capa-
citi:
(a) To contract; a) De contracter;
(b) To acquire and disposeof immovableand b) DyacquCriret de vendre des biens irnmo-
movablcproperty; bilierset mobiliers;
(c) To institute legal proceedings.
c) Dyesteren justice.
ARTICLE 11 . ~TICLE 11
Property, Funds and Assets Bienr, fonds et avoirs
Section 2. The United Nations, itsproperty and Section 2. LYOrgan&ationdm Nations Unics?
assetswherever located and by whomsoever held, ses biens et avoirs, queis que soient leur si2geou
shall enjoy immunity from every form of legal leur ditenteur, jouissent de lyimmunitidejuridic-
- processexcept in so far as, in any particular case, tion, sauf dans la mesure 06 IYOrganisation y a
it has expressly waivedits immunity. It is,however, expressiment renoncC dam un cas particuiier. I1
understood that no waiver of immunity shall ex- est toutefois entendu que la renonciation ne peut
tend to-anymeasure of execution. s'ttendreldesmesuresd'exicution.
Section 3. The premisesof the United Nations Section 3. Les locaux de lYOrganisationsont
shallbe inviolable. The property and assetsof the inviolables.Sesbiens et avoirs,oii qu'ilsse trouvent
United Nations, wherever located and by whom- et quel que soit leur ditenteur, sont exemptsdc
soeverheld, shall be immune from search, requisi- perquisition, riquisition, confiscation, eqropriz-
tion, confiscation, expropriation, and any other tion, ou de toute autre forme de contrainte exh-
form of interference, whether by executive, ad- tive, administrative, judiciaire, ligislative.
ministrative, judicial or legislative action.
Section 4. The archives of the United Nations, Section 4. Les archives de lyOrganisation ct:
and in gneral all documentsbelongingto itor held d'une manii:re ginirale, rous les documents !m
by it,shall be inviolable wherever located. appartenant ou ditenus par elle, sont invioiabir
oi~qu'ilssetrouvent.
Section 3. Without being restricted byfinancial Section 5. Sans dtre astreinte Baucun conu~~c. t
controls,regulationsormoratoria of anykind, =iglementation ou moratoire financiers. 1
(a) The United Nations may holdfunds, gold a) LYOrganisation des Nations Unies ?e?r :
or currency of any kind3nd operate accounts ditenir dm fonds, de l'or ou des devises clcy-
in any currency; conques et avoir descomptesen n'irnportequa!^
monnaie ;
(b) The United Nationsshall be free to trans- 6) LYOqanisation peut transfirer 1ibrem:r:t
feritsfunds, goldor currency betweenthe United ses fonds, son or ou ses devises desEtat~-tz:~
one place to another within the United States of un autre dans les limites des Etats-Unis dy-bnc-
America, and to convert any currency held by it rique et de convertir toutes devisesdttenucsPar
into any other currency. elleen toute autre momaie.
Section 6. In exercisingitsright under section5 Section 6. Dans l'exercice des droits lui
above, the United Nations shall pay due regard sont accord& en vertu de la section 5 ci-dasuc.
to my representations made by the Government of l'organisation des Nations Unies dem trnir
the United States, in so far as it is considered thatcoyte dt toutes reprisentations que se*?'
effectcan be given to such representations without fytes par le Gouvernement des Etats-UG dYAm'- .
i detriment to the interests of the United Natiom. nque, dans la mesure 05 elle estimera ~ou~~' ~ e
donner suite sans porter pgjudice -& ses pmrrrs
inttr8ts.
4
I CSC Section 7. The United Nations, its assets, in- Section 7. L'Organisation, ses avoirs, revenus
...a 2nd orher property shall be:, tt autres biensseront:
(CjZEscrnpt fromall direct taxes; itis under- a) Exontrts de tout impbt direct. I1demeure
stood,however,that the United Nations will not entendu toutefois que I'Organisation ne peut
claim exempuon from taxes which are: in fact, demander llexonCrationd'impbts qui ne seraient
no more than chargesfor pubIic utility services; pas en excis de simple rimuntration de services
d'utilite publique;
(b) Exempt from customs duties and prohi- b) Exontrts de tous droits de douane et pro-
bitionsand restfictions on imports and exports hibitions et restrictions d'importation ed'expor-
inrespect ofarticlesimported or exported by the tation BI'tgard d'objetsimportts et exportCspar
'L:nitedHations for its official use. It is under- I'Organisation pour son usage officiel.I1 est en-
good, however, that articles imported under tendu toutefois que les articles ainsi import6s en
such exemption will not be sold in the United franchise ne seront pas vendus sur le temtoire
StatesofAmericaexceptunder condirions agreed du pays dans lequei ils auront Cti introduits, B
with the Government of the United States of moins que ce ne soit ?ides conditions acceptbes
par le Gouvernement des Etats-Unis d'Am6-
rique.
! : Exemptfrom customsduties and prohibi- c) Exontrks de tout droit de douane et de
tlcx and res~ctions on imports and exports in toutes prohibitions et restrictions d'importation
respectof itspublications. et d'exportation B I'Cga-d de ses pubiications.
Stction 8. While the United Eations will not, Section 8. Bien que l'organisation ne reven-
1~ a general rule, claim exemption from .excise dique pas, en principe, l'exon6ration des droits ,
curiesand from taxes on the sale of movable and d'accise et des raxes A la vente, entrant dans Ie
:=movableproperty which form part of the price prix des biensmobiliersou immobiliers,cependant,
iimaking important purchases for official use of quand elle efFectue pour son usage officiel des
nropertyon which such duties and taxes have achats importants dont le prix comprend des droits
ken charged or are chargeable. the Government et taxes de cette nature, les Etats-Unis d'Am6-
oi the United States of America will, when- rique, prendront, chaque fois qu'il leur sera pos- .
ever possible, make appropriate administrative sible, les dispositions administratives appropriks
arrangementsfor the remission or return of the tant de cesdroits et taxes.mboursement du mon-
zmountof duty or tax.
ARTICL1E 11
~RTICLE 111
Facilities in respectof Communications FacilitSsde communications -
Section 9. The United Nations shallenjoy in Section 9. LyOrganisation dcs Nations Unies
he territory of.the United States of America for bin&ciera, sur le temtoire des Etats-Unis, pour
irs official coinmunications treatment not less ses communications officielles,d'un traiternent au
iavourabkthan that accorded by the Government moins aussi favorable que le traitement accord6
oithe United States of America to any other gov- par le Gouvernement des Etats-Unis d'hirique
mment, including its diplomatic mission, in the A tout autre gouvemement y compris sa inission
matter of priorities, rates and taxes on mails, diplomatique, en ce qui concerne les priorit&,
cables, telegrams, radiograms, telephotos, tele- tarifs et taxes sur le courrier, les &blogmmmes,
phoneand other communications; and press rates t616grammes,radiot6ligrammes, t6lCphotos, corn-
iorinformationto the press and radio. No censor- munications t616phoniqueset autm communica-
jbjpshal be applied to the officialcorrespondence tions ainsi que sur les tarifs de presse pour les in-
Sations.r official communications of the United formations B la presse et la radio. La correspon-
dance officielle et les autres communications offi-
ciellesde lyOrganisationne pourront &trecensurCes.
Section10. The United Nations shall have the Section 10. LYOrganisationdes Nations Unies
rightto use codes and to despatch and receive its aura le droit d'employerdes codes ainsi que d'w-
correspondenceby courier or in bags, which shall pCdier et de recevoir sa conwpondance par des
harethe sameimmunities and privileges asdiplo- coumers ou valisesqui jouiront des mhes privi-
maticcouriersand bags. Egeset &unit& que lescourriers et valisesdiplo-
matiques.
ARTICLE Iv
The Representativesof Members ReprhsentantsdesMembres
Section11. Representatives of Members to the Section 11. Les reprCsentantsdes Mambres au-
principal and subsidiary organs of the United pris des organes principaux et subsidiaircs des
Sationsand to conferencesconvenedbytheUnited Nations Unies et aux confirences convoqucts par
Sations,shall,while exercisingtheir functions and les Nations Unies jouissent durant I'urercice de
duringtheir journey to and from the place of leurs fonctions et au cow de voyages 2i destina-
meting, be accorded by the Government of the tion ou en provenance du lieu de la rGunion,des
UnitedStates of America the following privileges privil2geset imrnunitb suivants :
and immunities:
(a) Immunity from personal arrest or deten- a) ImmunitC d'arrestation personnelle ou de
tionand from seizure of their personal baggage, detention et de saisie de lrurs bagages person-
and,iq respect of words spoken or written and nels et, en ce qui concerne les actes accornplis
allacts done by them in their capacity asrepre- par ew en leur qualit6 de r&p&entants, y com-
sentatives,immunityfrom legal processof every pris leurs paroles et Ccsits,immunitd de toute
kind; juridiction;
(b) Inviolability for all papers and docu-. b) InviolabilitCde tous papiers et documents;
ments; - (c) The right to use codes znd to receive j c) Droit de faire usagede codeset de reccvoir
papers or correspondence by courier or insez, dts documents ou de la. correspondancc par
bags ; courriet ou par valisesscellics;
(d) Exemption in respect of themselves and d) Exemption pour eux-mCmeset pour leurs
their spouses from immigration restrictions, conjoints B1'Cgardde toutes mesurcs restrictives
aliens registration or national serviceobligations d'immigration, de toute formaliti dlenre,oistrc.
in the State they are visiting or through which ment des hangers et de toutes obligationsde
they are passing in the exercise of their func- servicenational dam les pays visitis ou traverses
tions; . par eux dans I'exercicede leurs fonctions;
(e) me same facilitiesin respect of currency e) Les m6mes facilitk en ce qui concerneles
or exchange restrictionsas are accorded to rep- riglementations monitaires ou de change que
. resentatives of foreign governments on tern- celles accordies aux reprisentants de gouvefne.
. pow official missions to the Government of ments itrangers en mission officielletemporaire
the United States; aup&s du Gouvernement des Etats-Unis d'Ami.
rique;
(f) The same immunities and facilities in re- qui conceme leurs bagagespersonnels que celles
spect of their personal baggage as are accorded
to diplomatic envoys;and also mentrdies aux agents diplomatiques; et igale-
' (g) Such other privileges, immunities and g) Tels autrcs privil2ges, imrnunitcs'et fa-
facilities, not inconsistentwith the foregoing, as cilitis, non incompatibles avec ce qui prickde,
diplomatic envoys enjoy,except that they shall dont jouissent Ies agents diplornatiques, sauf le
have no right to claimexemption from customs droit de riclamer Pexemption des droits dc
duties on goods imported (otherwise than as douane sur des objets importis (autres que ceux
part of their personal baggage) or from excise qui font partie de lem bagages personnels) ou
duties or salesaxes. de droits d'acciseou de taxesiila vente.
Section 12. In order to secure for the repre- Section 12. Enme d'assurer aux reprCsentans
sentatha of Munbers to the principal and sub- des Membns aux organes principaux et subsi-
' sidiaryorgans of the United Nations and to con- diaires des Nations Unies et aux confknces con-
ferencesconvenedby the United Nations, complete voquees par' I'Organisation une complhte lihi
freedom of speechand independence in the dis- ,de parole et une complZtkindipendance dansI'ac-
charg ef their duties, theimmunity from legal complissement de leurs fonctions, l'immuniti dc
, pmcexi in respect of words spoken or written and juridiction en ce qui conceme les paroles ou les
allacts done by them in discharging their duties Ccrits ou la actes Cmanant d'eux dans l'accom-
shall continue to be accorded, notwithstanding plissementde leun fonctions continuera A leuritrt
thattht:persons concerned arcno longer the repre- accordCe meme apn?s que ces personnes auront
sentatives.of Members. cesd d'Ctrclesreprisentants de Membres,
Section 13. Where the incidence of any form Section 13. D- le cas oh I'-dence d'un
- of taxation depends upon residence,.periods during impbt quelconque est subordonnk ?ila risidenct
which the representatives of Members to the prin- de I'assujetti, les piriodqs pendant lesquelleles
cipal and subsidiary organs of the United Nations rcprisentants desMembresaupris desorgana prin-
and to conferences convened by the United Na- cipaux et subsidiaires des Nations Unia et aus
tionsare present in the United States of America confircnces convoquies par I'Organisation des GI
for the dischargeof their duties shall not be Nations Cnies se tmuvemnt sur le territoire des be
considered asperiods of residence. Etats-Unis dYAmirique pour l'exercice de leurs ar.
fonctions, ne seront pas considides comme des tie
piriodes de residence. mi
Section 14. Privileges and immunities are ac- la1
corded to the representatives of Members not for Section 14. Les privilhges et irnmunitis sont
the personal benefit of the individuals themselves, accordis aw repr6sentants des Membres, non a grr
but in order to safeguard the independent evercise en toUteindipendance I1exercicede !eun fonction<cr Xa
of their functions in connection with the United en rapport avec I'Organisation. Par consiquentcn inc
Nations. Consequently a Member not only has the Membre a non seulement le droit mais le devoir ha.
right but is undera duty to waive the immunity dc LeverPimmunit6de son reprCsentantdans :our: of
of its representative in any case where the im- les cas oh Z1son avis l'i-unit6 empacherait cur thc
munity would impede the course of justice, and it justice soit faite et oh eUepeut-&tn levsansnh ant
can be waived without prejudice to the purpose au but pour Iequel IYimmunit6 estaccordie. ! es,
for which theimmunity isaccorded. Sec
the
Section 15. The provisions of sections 11, 12 Section 15. Les dispositionsdes sections 11.12 c
of the UnitedStatts ofAmerica:inst the authorities et 13 ne pomont Ctre invoquies h I'encontredfi ate
autoritis des Etats-Unis dYAmirique: the
(a) By a national of the United States of a) Par un ressortissantdes Etats-Unisd'-Ami- Prc
America; rique ; an(
(b) By a representative of the United States b) Par le nprisentant des Etats-Unis d'.imi- occ
of America; rique ; PI+
(c) By a representative of another Member, c) Par le reprisentant d'un autre Xembre. thi!
when that Membu haswaived the immunity in celui-ci a lev6PimmunitC en question.
question.
Section 16. In thi srticle the exprwion "rep- Section 16. Aux finsdu present article, ,.'
i . rueutatives" shallbe deemed to include all dele- tern "reprke tants" est considCri cornmecorn-
gates, deputy delegates, advisers, technicexper& prenant touslesh~s, dilCp4s adjoins. col1sci:- ; s
and secretaries of delegations. lers, experts techniques et secn5tairesde dilkFtion. - ingCtrvoir ARTICL VE
:f par Fonctionnaires
SCctiol17. The Secretary-Generalwill specify Section 17. LC SecrCtairegCniral dtterminera
categoriesof officialstowhich the provisions les catigories des fonctionnaires auxquels s'ap-
of&,isarticle and anicle VII shall apply.He shall pliquent lesdispositionsdu prCsentarticle ainsi que
these categories to the General Assembly. de I'article VII. I1en soumettra la iiste AI'Assem-
~i~~ieaftcrhese categoriesshall be communicated blte gCnCraltet en donnera ensuite communica-
;,he Governmentsof all Members.The names of tion aux Gouvernementsde tous les Mernbres. Les
ti!officialsincluded in these categoriesshall from noms des fonctionnaires compris dans ces catigo-
i,rnto time be made known to the Government ries seront comrnuniquis piriodiquement au Gou-
,i thUnited States of America. vernement des Etas-Unis d'Amirique.
Szction 18. Officials of the United Katiom Section 18. Les fonctionnaim de I'Organisa-
Siul! tion des Nations Unies:
(a; Be immune from legal processin respect a) Jouiront de l'immuniti de juridiction pour
0:words spoken or written and all acts per- les actes accomplis par eux en leur qualiti de
formedby them in their officialcapacity; reprisentants, y comprisleurs paroleset Ocrits;
(bj Be exempt from taxation od the salaries b) Seront exonids de tout imp6t sur ies
md unoluments paid to them by the United traitements et emolumentsversies par I'Organi-
Sarions; sation desNations Unies;
c) Seront exempts de toute obligation rela-
(cj Beimmune from nationai serviceobliga- tive au servicenational;
dons
id) Be immune, together with their spouses conjoints et les membres de leur famille vivant
and relatives dependent on them, from immi- A leur charge aux dispositionslimitant I'immi-
grationrestrictions and alien registration; gration et am- formalitk d'enregistrunent de
itrangus;
Itants (e) Beaccorded the sameprivilegesin respect e) JouirOnt, en ce qui concerne les facilitts
iubsi- ofexchange facilities asare accorded to the de change, des m2mes priviliges que les fonc-
con- officialsof comparable ranks fonning part of tionnaires d'un rang comparable appartenant
bcrti diplomaticmissions to the Government of the aux missions diplomatiques accridittts auprZs
l'ac- UnitedStatesof America; du Gouvernement des Etats-Unis dYAmirique;
4 d? (f) Begiven, together with their spousesand f) Jouiront, ainsi que leurs conjoints et les
u les datives dependent on them, the same repatria- mcmbres de leur familie vivant B leur charge,
com- tionfacilities in time. of international crisis as des mcmes facilitis de rapatriement que Its en-
.ia diplomaticenvoys; voy& diplomatiques en piriode de cris inter-
wont nationale;
(g) Have the right to import free of duty g) Jouiront du droit d'hporter en franchise
d'nn theifurniture and effects at the time of first leur mobilies et leurs effetitl'occasionde leur
cncc takingup their post in the countryin question. premiire prise de fonctions dans le pays inti-
:.la ressi.
xin- Section19. In addition to the immunities and Section 19. Outre les priviliges et immunitis
aus pririiegesspecified in section 18, the Secretary- prtvus Bla section 18,le Sedtaire ghid et tous .
dm Generaalnd all Assistant Secretaries-Generalshall les Sous-Sedtaircs giniraw, tant en ce qui Ies
dcs bcaccordedin respect of themselves,their spouses concerne qu'en ce qui concerne leurs conjoints et
eurs and minor children, the privileges and immuni- leurs enfants mineurs, jouiront des priviligesim-
2 - dcs:exemptionsand facilities accorded to diplo- munitb, exemptions et fdtis accordCes, con-
maticenvoys, in accordance with international formiment au droit international, aux envoy&
sont law. diplomatiques.
.n 5 Section 20. Privileges and immunities arc Section 20. Les privil&geset immunitk sont
Urtl ~tcd to officialsin the interests of the United accord& aw fonctionnairesuniquement dam I'in-
iom Sationsand not for the personal benefit of the tC&t des Nations Unies, et non B leur avantage
: UT: $dividu& themselves.The Secretary-Generalshall personnel. Le Secrktaire g6nira.l pourra et dm
voir me theright and the duty to waive the immunity lever l'immuniti accordee B un fonctionnajrc dans
:ou: .cianyofficialin any cas e here, in his opinion, tous lescas,oi?,Bson avis, cette 'iiunid empE-
auc immunitywould impede the course of justice cherait que justice soit faite et pourraetrelev&
uirt ad canbe waived without prejudice to the inter- sans porter prijudice awi intirits de I'Organisa-
"_ of the United Nations. In the case of the tion. A lyigarddu SecrCtain giniral, le Conseilde
Satary-Genual the Security Council shallhave sCcuritCa qualid pourprononcer la lev& des im-
righttowaive immunity. munitb.
Section21. The United Nations shallco-oper- Section 21. L'Organisation des Nations Unies
a:eatalltimes with the appropriate authorities of collaborera en tous temps avec les auto* com-
-..- United States of America to fadlitate the pitentes des Etats-Unis en vue de faciliter la bonne .
3Ver administration of justice, securethe observ- administration de la justice, d ' ~ Pobmation
of police regulations, and prevent the des r&glemcntsde policeet d'kviter tout abus au-
:c-ce of any abuse in connection with the quel pourraient donner lieu les priviliges, immu-
?nviiegesi,mmunities and facilities mentioned in nit& et facilitis his dans le prisent article.
Lw article.
ARTICL VI ARTICLE VI
Experts on Musionsfor the United Nations Expertsen missions pourPO~ganisatwn
des Nations Unia
Section 22. Expm (other than officialscomi Section 22. Les experts (autmquizles fonc-
kg within the scope of article V) performing tiomaires visb riI'articleV), lorsqu'ilsaccomplis- such privileges and immunities asare necessaryed sent une mission pour I'Organisation des Nationr
for the independent exercise of their functions yncompris It temps du voyage, dn privilEgasiet,
during the period of their missions,including the immunitis nicessaires pour pouvoir exercer leuh
time spent on journeys in connection with their fonctions en toute indtpendance. 11jouissenten
missions.In particular they shail be accorded: particulier des privil6ges et immunitis suivank:
(a). Immunity from personal arrest or deten- a) 1mmunitCd'arrestation personnelleoude
tion and from seizureof their personal baggage; ditention et de saisie de leurs bagages person.
neis;
. (b) In respectof wordsspokenor written and b) Immuniti de toute juridiction en ce qui
acts done by them in the courseof the perform- concernc les actes accomplis par eux au cow
ance of. their mission, immunity from legal de leur mission, y compris leurs paroles et
processof every kind.This immunity from legal icrits. Cette immuniti continueraA leur Gtre
process shall continue to be accorded notwith- accordit mime aprij que ces personnu auront
standing that the persons concerned am no cesside rcmplir desmissionspour IYOrganisation
longer employed on missions for the United desNations Unies;
Nations;
(c) Inviolability for all papers and docu-
ments ;
(d)- For the purpose of their communications d) Le bit de faireusagedecodeset deme-
with the United Nations, the right to use codes couniv ou parmevalisessceilCtspour'leun corn-.
courieror in sealedbags; correspondence by munications avec lyOrganisation des Nations
Unies;
(e) The same facilitiesin respect of currency e).Lesmba facilit6 en ce qui concerncla
or exchang restrictionsasare acconled to rep- dglementations monCtairu de changeque cch
resentatives of foreign governments on tq- qui sont accordk aux nprisentants du gou-
poraryofficial missions to the Government of vemementa inangu~ en mission officielIetan.
.the UniteStatp of America; porairc sup* du Gounmeanent.da Etats-Unb
dYAmCriqu ;e
(f) The same immunitia and facilitiesin re- f) Les&mu immunir6 et fdrb m cequi
spectpf their personal baggagas are accorded concune leurs bagagespenonne kw: ceb qui
to diplomaticenvoys. sont accord& aux agerig diplomatiqua.
Section 23. Privileges and immu'nities are Section 23. Les privil* et immunitb song
granted to experts in the interests of the United accord& aux rxpvts dans l'intMt de POrganha-
Nations and not for the personal benefit of the tion des Nations Unies et non Blcavantageper-
individualsthemselves.The Secret+-General shall sonnel.Le Secrltain g6niral pourra et dcvralcvu
have the right and the duty to waive the im- lyimmunitCacwrdk .?unexpert dans tow la cu
munity of any expert in any case where, in his oh,A sonavis,cette immunitCempicbdt pc jus-
opinion, the immunity would impede the course tice soitfaite, et oh ellepeut I&~~ sansponcr
of justice andit can be waived without prejudice prijudice aux intCrits de lSOrga&ition.
to theinterestsof the United Nations.
A~nc~e WI ARTICL VEII
United Nations Laissez-Passer Laisscz-passerdes Nations Unies
Section 24. The United Nations may issue Section24. L'Organisation des NationsUnies
United Nations laissez-parserto its officials.Theseourra dilivrer des laissa-passeB stsfonction-
laissez-parsershabe recognized and accepted as nairu. Ces Iaissn-passer seront reconnurt at-
valid travel documents by the authorities of the ctptis par Iesautoritis da Etats-Unis d'AmCriquc
United States of America, taking into account the commc tim valable de voyage,en tenant compn
provisonsof section25. desdispositionsdela section25.
Section 25. Applications for visas(where n- Section 25. Les demanda de visas[lonque
. quid) fmm the holdersof United Nations lairscz- des visassont niccssaircs) imanant des tidG-:
passer, when accompanied by a certificate that de ces laissez-passeret accompagnki d'untern-
they are travelling on the businessof the United ficatattestant que ccsfonctionnairesvoyagpour
Nations, shall be dealt withasspeedias possible. le comptede i'OrganjsationdevmntCtrtc*?
In additionsuch personsshallbe grantedfacilities dans Iepiusbrei difai possible.En outre,t3Ffi:-
for speedytravel. t5 se myage rapide seront accord6csauxtidm
de cm laissez-passet.
Section 26. Similar facilities to those specified Section 26. Des f&E& analogue cds c:ui
in section25shallbeaccorded to e.upertsand other sont mentionncts Bla section 25smnt accomcfs
persons who, though not the holders of United auK eixpvtset autrrs pusonna quisansitre rnw
Nations laissez-passer,have a certificate that thede ha-passer du Nations Unies,semnt poneup
are travdling on the business of the United ~'UIIcutiticat attestant qu'& voyagent pow
Nations. comptede POrganbation..
Section 27. The Secretary-and, Assistant Section 27. Le Stxr&ah &nCrai, la Sou-
Secretaries-General and Directors travelling on Seeritaim giniraux et Iu kteun ~ya$e3f?~
United Nationslaissez-passeron the businessof the pour le compte de IyOrganisationet mum
United'Nations shall be grantethe same facilities 1-a-passer d15&& par cdle-ci jouiront c"
as areaccordedto diplomatic envoys. memu facilit6 que lesenw* diplomatiqua.
Section 28. Tht brovisions ofth iricle may Section 28. Les &p&tio~~ du p-t artic!:
be applied tthe comparable o5ci+ of sptdaltrd PaYCTlt appliquh aux fonctio- defig . .
.,2:ic;;:, -r:;:ies if the agreements for relationship made analogue appartenant A des instituti-iciali-
l~i.isr.ion,I ;ider Article 63 of the Charter so provide. sCes,si Its accords fixant les relations desdites,ins-
;!$geset i titutions avec lYOrganisationaux tennes de 1'Article
.r leu:: 63 de la Charte cornportent une disposition B cet
.:nt L.. effet.
:!ranu: ARTICL VEIII
. ou d: ARTICL VIII
?erso:;. Settlement of Disputes Rdglement des diffe'rends
Section29. The U&ted Nations shall make Section 29. L'Organisation des Nations Unies
;Tovisionfor appropriate modes of settlement of: devra privoir des modes de rkglement appropriis
pour:
I a) Des difftkends en matiire de contrats ou
(aj Disputesarising out of contracts or other autres difftkends de droit privi dam lesquels
disputesof a private law character, to which the I'Organisationserait partie;
united Nations is a party;
(b) Disputes involving any official of the un fonctionnaire 'de IYOrganisationqui, du fait
United Nztions who by reason of his official de sa situation officielle 'ouit de l'imrnuniti, si
?ositionenjoys immunity, if immunity has not cette immuniti n'a pasJt!ti lev& par le Secri-
beenwaivedby the Secretary-General. take giniral.
The Sixt Chommittee has examinedthe question La SixigmeCommissiona 6tudii la question des
c.:'theprivileges and immunities to be accorded privilPgeset immunitis qui devront btre accordis
:nthemembers of the International Court of Jus- aux membres de la Cour internationale de Justice
ice:the agents: counsel and advocates of parties et aux reprkentants, cons& et avocats des parties
kior::the Court in accordance with the provisions B un litige soumis 5 la Cour, conformiment aux
r.l.4rticIes19, 32 (paragraph 8) and 42 (para- dispositionsdes articles 19, 32 (paragraphe 8) et
rraph 3) of the Statute, as well asthe privileges examin6la question des privilkgeset immunitk qui
2nd immunitiesto be accorded to the registrar and devront btre accordis au Greffier et aw autres
rker officersof the Court, and recommends that fonctionnaires de la Cour. Elle recommande 5
Lqe General Assemblyadopt the following resolu- I'Assemblieg6nCrale d'adopter I!irisolution sui-
CP qci ' "n : vante :
.:Iqc:
"1. The General Assembly,with a view to "I. LJAssemblkgknkrale,enuue d'assurerB la
ensuringthat the .International Court of Justice Cour internationale de justice le bin&ce des
shallenjoy the privileges, immunitiesand facili- privilgges, immunites et facilitis nCcessaires ?i
tiesnecessaryfor the exerciseof itsfunctionsand I'exerucede sesfonctions et BI'accomplissement
the fulfilment ofitspurposes,in the country of de sa dche, soit dans le pays oh le si6gede la
itsseat and elsewhere, invites the members of lesmembres de la Cour, au cours de la pnmi8rcinvite
he Court at their first sessionto consider this sessionde celle-ci, Bexaminer la question et A
questionand to inform the Secretary-General communiquer leurs recommandations au Secri-
of their recommendations. taire ginkal.
"2. The General Assemblydecides that the "2. L'Assemblkegkne'raledecide que la ques-
questionof the privilegesand immunities of the tion des priviliges et immunith de la Cour sera
Court shall be considered as soon as possible examinee aussittit que possibleapSs le dip& de
I - n:. afterthe receipt of the recommendations of the cesrecommandations.
Court.
,....:s- "3. The General Assemblyrecommends that, "3. L'Assemble'g eknkralencommande queles
,..it:.. until further action has been taken, the rules Membres observent, en ce qui concerne la Cour
,.,..>:" which have been applied to the Permanent internationale de Justice et jusqu9Ace que de .
Court of International Justice should be ob- nouvellesdispositionssoient intervenues, la rCgle-
servedby Members in relation to the Interna- mentation appliquie en la matiin pour laCour
tionalCourt of Justice." permanente de Justice internationale."
APPEND E V APPEKDICE m
The Sixth Committee records its agreement La Sikme Commission a approuvC lu ream-
:;":!the recommendations of the Preparatory mandations de la Commission prCparatoire des
r?.&sion of the United Nations concerning the Nations Unies concernant lYint&t qu'il y aurait B
"jirabityof a unification, asfaxas possible,ofthe unifier, dans la mesure du possible,lespriviligts et
:.5vilcgeand immunities enjoyed by the United immunitis dont jouissent IYOrganisationet les di-
..;;rioand the various specialized agencies, and versesinstitutions spicialisits, et elle rccomrnande
:'ipmmendsthat the General Assemblyadopt the B 1'AssemblieginCrale d'adopter la r6solution sui-
':~oltiresolution: vante :
"The General Assemblyconsiders that there "LaAssemble'gekndruleestimeque I'unification,
st manyadvan- in theunification as faras dans la mesun du possible,des priviliges et im-
;:o.csilef the privilegesand immunities enjoyed munitis dont jouissent 1'Or~tion et les di-
P!the United Nations and the various special- verses institutions sptcialisCes,prknte de nom-
ued agencies. brew avantage.
'Vhile recognizing that not all specialized "Tout en reconnaissant que lesinstitutions sp6-
Wncies require all the privileges and immuni- cialis6esn'ont pas toutes besoindts mimes privi-
which may be needed by others, and that- liges et bunit& et que ccrtaines d'entxeellcs,
yain of these may, by reason of their particu- en raison du caractin partidier de Inus
lar functions, require priviletpr of a apecial fonctions, ont buoin dc privilGgu d'une nature
. . nature which are not required by the United spiciale, qui ne sont pas nicessair?I'Organisa.
Nations itself, the General Assembly considers tion, I'AsscmblCeestime que les privilegeset h-
that the privilegesand immunities of the United munitis de celle-ci devraient itre considiris, cn
Nations should be regarded, asa general rule, rigle ginirale, comme un maximum, dans lB
as a maximum within which the various special- limites duquel les diverses institutions spiciali.
ized agencies should enjoy such privileges and sees ne jouiraient que des privil?ges et immu.
immunities asthe appropriate fulfilmentof their nitis nicessaires B l'accomplissementde leun
respective functions may require, and that no fonctions respectives, et qu'on ne devrait recla-
privileges and immunities which are not really mer aucune imrnunit4 et aucun privil5gequi ne
necessaryshould be askedfor. soientvraiment nicessaires.
"Therefore the~e'neralAssemblyimtructs the "Enconse'quenceL ,'Assemblkeginirale charge
Secretary-Generalto .open negotiations with a le Secrdtairegknnhald'entamer des nigociations
view to the re-consideration, in the light both en we de ricxaminer, Ala lumiire de la conven-
of the General Convention adopted by the tion ginirale adoptie par les Nations Unies et
United Nations and of the considerationsabove, des considirations mentionnies ci-dessus,les&-
of the provisions under which the speciahed positions confirant aux institutions spicialisin
agencies at. present enjoy privileges and im- Ies privilZgeset immunitis dont elles jouissent
munities." actuelIement."
APPENDIV CE
The Sixth Committee recommends that the La Sixi2meCommissionrecommande B l'Assem-
General Assemblyadopt the following resolution: blie ginirale d'adopter la&olution suivante:
"It has been found that a frequent source of "I1se produit friquemment des dif6cultes8 la
difficultyis road accidents in which motor cars, suite d'accidentsde la cilculation lorsquelecon.
owned or driven by persons possessingimmunity ducteur ou le proprittaire de la voiture en cam
from legalprocess,are involved. ne peut4tre traduit en justice en raisoh de I'im-
muniti qui Ieprot2ge.
"It is the intention of the United Nations to "L'OrganisationdesNationsUniesentendprt-
prevent the occurrence of any abuse in connec- venir tout abus auquel pourraient donner lieu
tion with privileges, immunities and facilities les priviliges, immunitk et fadit& dont ellc
granted to it under Articles 104and 105of the jouit en vertu des Articles 104 et 105 de la
Charter and the General Convention on privi- Charte et de la convention gintrale rdativeauu
leges and immunities, whichdetermines the de- privil&geset immunitts, qui.determine lemoda-
tails of.the application of these articles. lit& d'applicationde cesarhcles.
"Thereforethe GeneralAssemblyinstructsthe "Emc012sk~uence l,Assembliegknkrale chargt
Secretary-General to ensure that the drivers of le Secrktaire gkndral de prendre les mcsura
.. allofficialmotor cars of the United Nations and nicessaires pour que Its conductew de toutes
all members af the staff who own or drive les voitures officielles de I'Organisationainsi
motor cars, shall be properly insured against que tous lesmembresdu personnelqui possldent
. third party risks." ou conduisent des voitures, soient dhent s-
suris contre lesaccidentsaux tiers."
APPENDI VXI
The Sixth Committee considered a proposal La Sixiime dommission a Ctudiiune proposition
from the Advisory Group of Experts on Adminis- du Groupe consultatif d'e.xpertsen matiire admi-
trative and Budgetary Matters, to the dfect that nistrative et budgitaire tendant A ajouter 8.!a
an article should be included in the General Con- convention g6nirale un article pdvoyant le man:
vention providing for the preservation of the ac- tien des droitsA pension acquis par Iespersonnes
crued pension rights of persons who, at the time qui, au moment de leur entrie au servicede I'Of
that they enter the senrice of the United Nations, ganisation, occupaient un emploi officielsur :c
have held official positions in the territories of territoire d'un Etat Membre. La Sixiime Cob-
that a provision on these lines could be included sion n'apas jug6qu'une telle dispositionpQfiprcr
in the Convention. The Committee was, however, l'idie contenue dans la proposition itait de nawx
of the opinion that the substance of the proposal A faciliter considirablement le recrutement
was of.grrat importance for the purpose of facili- personneiqualifii, particuliirement daniesd&uu.
tating the recritmcnt of suitable personnelfor the En consiquence, la Siviime Commissionpropqx
staff of the United Nations, especially in the que la question fasse I'objet d'une recoma!laq-
earlieryears. Consequently, the Sixth Committee tion et ellea estimi qu'il lui appartenait d??:
proposes that the matter should be the subject of senter cette recommandation, puisqu'elleavaitc::
a recommendation, which this Committee felt saisie de la question, bien que, en princip? ?s
competent to make, seeing that the matter had puisse soutenir que cette question soit pluroc.1
been referred to it, although in principle it might resort de la Codsion des questionsadminis-
be maintained that the subject fell more properly tives et budgitaires (Cinquiime Commission).
withinthe scopeof the Committee on Administra-
tive and Budgetary questions (Fifth Committee).
Accordingly,the Sixt hommittee recommends La Siime Cornmission recommande donc ,:
that the General Assembly idopt the following 1'Assemblit ginirale d'adopter la risolution c-
resolution: aprk:
"In order to facilitate the engagement; "En vue de faciliter I'engagement,parmi ::
asmembers of the staff of the United Nations, personnel de l'organisation, de pursonne??a"[
of persons who have accrued pension rights acquis des droits& pension en qualit4 de,:OyC'
as officials, either of. the central government tioncaires, soit du gouvernement central d.1:"
of bXanbers, or of subordinate $ovemmentai or I Etat Membre, soit d'autres,organes subsidialr' '
other administrative authorities within the 1 ou services adrninistratifs gouvernementaus i ....i.sijf~IcI;II;cit idesirablethat arrange- Ic territoirc dlEtats Membres, il convient de .-
_.._:.. ;;,~l.should be made to secure that accrued prendre des dispositions pour assurer Ie main-
$3 ,.im- rights are not lost when such persons ticn des droit2 pension dij2 acquis lorsqueccs
.-riic:. 2cc";pt osts on the staE of tile United Nations, personnes acccptcnt un cmploi dans 1'Organisa-
'&. .... 'p\say either of transfer or of secondment. tion, soit par iransfert, soit par ditachemcnt.
'':::-,.. IEn conse'qucnce,PAssemble'eginiralc recorn-
-....,., "Tilzrejore,thc GeneralAssembly recorninends mande que:
.-.I. .. . . . ::;at:
..--.... "Afrcr such discussionwith the Secretary- "AprksavoirrCgliavcc lc Sccritaire giniral
'-.:- Grnerd as may be necessary to settle details Ies questionsae dktail indispensables,les gou-
he GovernmentsofMembers adopt such legis- verncments des Etars Membres prenncnt les
lativeor administrative measures as may be mesures ligis!atives ou administratives nices-
requiredto preserve such pension rights." sairesau mcintien desdirsdroitA pension."
A/36 Aj36
[Original textEnglish] [Texte originalenanglais]
23 ANNEX€ 23
,J:,:MITTSESTRUCTUR OF THE GENERA ALS- I COMMISSIO~JS DE L'~SSEMBL ~EEN~~E
SEMBLY !
RAPPOR TE LA Sdm COMMISSION
&PORT OF THE SIXTHCOMMITTE TO TXE / h L'ASSEMBLA G~N~LE
GENERAA LSSEMBLY I
Rapporteur: Mr. W. E. BECICETT Rapporteur: M. W.E. BECKETT
(Royaume-Uni)
(United Kingdom)
i. The General Assembly,at its sixteenth ple- 1. L'Assemblieginirale, au cow de sa seizihe
--.y meetingheld on 19 Januar). 1946, referred siance pliniire tenue le 19 janvier 1946, a Rn-
Lq1 of section 4 of chapter I of the voyi 2 laSiriime Commissionl'examcn de la sec-
i,:port of the Preparatory Cornmission dealing tion 4 du chapitre I du rapport de la Commission
.>:ihe.h committee structure of the General prkparatoire concernant les Commissionsde I'As- -
.%rernblo the Sixth Committee. semblie ginhrale.
'2. On se rappellera que, outre cette dbcisionet
... It ~villbe recalled that independently from 2 Pro?os d'un amendement de la dbligation dc .
r:;and in connection .with an amendment pro-
->jedby the .delegation of Cuba to the rules of Cuba au r&glementintirieur de I'AssemblbegCni-
::scedun of the General Assembly (document rale (document A/C.6/8), renvoyb par cde-ci
l.C.6/8)which the General Assemblyreferred to la Sixitme Commission,I'Assernblieginirale, Bla
5.:Sixt Chommittee, the General Assembly,upon suite de l'exhen du rapport que lui a sournisla
.:rconsiderationof the repoft of the Sixth Corn- Sixiime Commissionau sujet de cet amendement
zi:tee on this amendment at its eighteenth B sa dk-huitiime siance pliniire tenue le 26 jan-
meting of26 January 1946, adopted an vier 1946a adopt6 un amendement ?il'article 33
i:r.cndmentto rul33 and a new pjle 33A of the du r&glementintirieur ~rovisoire et un nouvel
:rovsonal of procedure. These two rules article33A. Ces deux articles ont traitaux fonc-
;::I ,ciththe functions and proceduof the (3en- tionvet 2 la procidure du Bureau, questionstraities
t:;!Committee. Their subject matter is partly en partie dans la section 4 du chapitre 1 du rap-
:?rcredby secticn 4 of chapter I of the Report Po" de la Commission~riparatoh.
': hePreparatoryCommission.
3.The Sixth Commit* section4 of 3. La %xihe Commission,au cow de saneu-
i."3terI of the Reportofhe Preparatory Gom- viime siance tenue le 5 fivrier 1946,a examhi la
:iirionatits meting on 5 February 1946, section 4 du chapitre1 du rapport de la Commis-
sion priparatoire, qui avait it6 prtalablement ren-
2:r ithad been previously to itsSub- voyie B son sous-comiti du riglement intbrieur.
'-=anitteeon rules of procedure.
i.?;o further to fie 4. Lesmembresde la Siime C~xiutkion n'ont
--a- of procedure &ding the committee Pas pdsenti d'autres amendements aux articlesdu
Zcture of-thehers] Assemblywere submitted riglement intbrieur relatifs aux Commissions de
..itmemh to the S& Committee. Then is, I'Assemblieginbrale. Celle-cin'a donc pas?ipren-
:.'fcfore,no need for further action by the Gn- , dred'autresdicisions5 cet igard.
':k.~scmblyin thisrespect.
A/50 A/50
[Original text: English] [Texte originaen anglais]
ANNEX 24 ANNME 24
RESOLD~ ON THE WITION AND PUN- PROJETDER~SOLUTION SURL'EXTRHDZTIOENT
ISHMENT OF WAR CRXMINALS LE CHATIME DNETCRIMINELSDEGUERRE
&PORT OF TRE FIRSTCOMMITTE TEO THE , RAPPOR TE LAPRE& COMMISSION
GENERAA LSSEMBLY AL'ASSEMBL~ GE~N&R+U.E .
Ra$~~rteur M: r. Vnrw ~FRON~ (Ecuador)
Rapporteur: M. ViteriLAFRON TEquateur)
.:.The Genera1Assembly,at its twenty-second 1. L'Assemblie ginCralt, au cow de sa vingt-
""? meeting held on Saturday, 2 February deuxitme seanceplinikc, tenue le samedi 2fivriuUNITED NATIONS
OFFICIAL.RECORDS OFTHE FIRST PAR.THE
FIRST,,SESSION OF THGENERAL ASSEMBLY
PLENARY MEETINGS
THE GENERAL ASSEMBLY
Verbatim Record
1Janua-y1Februa1946
NATIONS UNIES
DOCUMENTSOFFICIEDELAPREMIEREPARTIEDE
LAPREMIERESESSIONDE L'ASSEMBGENERALE
SEANCES PLENIERES
L'ASSEMBLEE GENERALE
CENTRALHALL, WESTMINSTER
LONDON i
large part ofthe successofthis Commiisdue par cette Commis4onat due Bsonactivitet
to hisworkand hisexperience. son experience. i
I move the adoption of all the reportsandjets de risolutionsournispar la Cinqucorn. (.
resolutionsof thefth Committee. mission.
The PRESIDENT (Translation from the Le PR~SIDENT A-uc;n orateur nYitantplus
French) :As there are no more speakerson theinscrit, nous allons prockder au votevous
listw,e shall now proceedto vote.I propose tports.ede voterstipartimentsur lesquatrap
take eachof the four reportsseparately.
I call for a vote on tfistwhich is docu- Je mersaux voixle premier rapportsuror.
'entM41: Organizationof the Secretariat. ganisationdu Secretariat (documeA/4 1).
(A votewastakenby ashowof hands.) (I1estproce'dea'uvotLmainlevbe.) .
Decision: The report and resolutionswere Dikision: Le rapportet les rhsolutisea
adopted by thirty-seven votes. No delegationadoptkspar trente-septvoix contrezhrosom
voted against,andtherewere noabstentions. abstention.
The PRES~ENT(Translation from the Le PR~SIDENL Te:deuxi6merapportconceme
French): The secondreport isdocumenA147 : les amendementsau r&glementintkrieur (docu-
Amendmentsto the provisionalruleosf pmce- mentA/47).
dure.
Ifthere ino objection,I shalltakeit that theSi aucuneoppositionn'at fornulie, je lecon-
reports adopted. sidZrecommeadopti.
Decision: The retort and resolutionwere Dikision: Le rapport et les rdsolutsoni
adopted. adoptks.
The PRESIDEN( TTranslation from the Le ~'R~SIDEN Le troisi6merapporestrcla-
French):The third reportisdocument A/44: tifaux dispositionsbudgCtaire4et financiiru
-Budgetaryand financial arrangements. (documentA/&).
If there is no objection,the reportis adopted. Pabsencede toute observation,je le con-
sid6re'comradopt4. .
Decision:The repott and resolutionswere D&ision: Le rapport et les rdsolutisont
adopted. adoptis.
The PRESIDEN( TTramlation from the Le PGS~ENT: Le denier rapport atraiit
French): The last reporis documentM48: la composition du ComitC des contributions
Compositionofthe Committeeon Contributions. (documentM48).
If there are no objections, the reporis Si aucune observation n'est formulCelee
adopted. considtrecornmeadopt&
Decision:The report and resolutionrwere DGcision: Le rapport et les r6solutront
adopted. adoptis.
68. P~EGES rn~ IMMUNST IF THE 68. PR~L~GE E TIMMUNIT DESNATIONS
UNITED NATIONR S:EPOR OTFTHE UNDESR : APPOR DE LB S&ME
SIXTH COMMITT :EREESOLUTIONS COMMISSIO %NS:LUTIONS (DOCU.
(DOCUMENT A/43) . MENT A/43 REV 11
The PRESIDENT (Translation from the Le PR~SIDENT L:ordre du jour appcila
French) :The next item on the agenda isthe discussiondu rapport de la SixitmeCodon
report of the Sixth Committee on theprivilegesur lesprivilkgeset immunitb desNations
andimmunitiesof the United Nations (Annex (annexe22,page 642).
22,page642).
I callupon the Rapporteur ofthe SixthCom1 La paroieat B M. Becken, reprirenranr1 :
rnittee,Mr. Beckett,representofthe United Royaume-Uni,Rapporteur de ia Sikme CJ::- i
Kingdom. mission. , i
Mr. BEGXET (Tnited Kingdom) :I havethe , M. BECXET (Toyaume-Uni) (Traductioif ;
honour to bring beforethe GeneralAssembay Panglab): J'aiPhonneur de soumettreBI'.b :
further report fromyour Legal Committee.The sembl4egenkraieun nouveaurapportdelaCOG- f
documentwhichyou haveto considernow is in missionda questionsjuridiques. Le documrnj.
the English version3, but in the Frenchver- qui vok est pr&ent&porte la rabrence.12 1
sion I would askdelegates to take document dans la version angiaise, rnais !auverric~i
A/43/Rev.l. Further, I would mention that franpise, vous voudrez bien vous reponYi.l
there are two small corrigenda to both docu-documentA/43/Rev.l. En outre,jevoussi~sc f
mats correctingtypographicalerrorswhicap- qu'ily a lieu d'appo~er deuxIighes correcucr-'
peared in thfirtyping. au texte de cesdew documentsqui contiennac+
des erreuxs typographiques dansla preAiz
Cpreuve.
This report, though iisin one document, Ce rapport, tout en ne fomt qu'un
will seeit isa report consistingof forty-onevousleconstaterez,lerapport compor1pags
pages. haveno intentionof readithoseforty- 'Je n'ai nuUement Pintention de vouslirCC i
onepages,or indeedanyofthexi.I dofeel,how- document en entier nimeme en partie. SChq*
: ,,.,hat I shouldcall attentionto the fact thatoins,je tiens B appeler votreattention sur le
coverssixseparateitems. fait que ce rapport traite de six questiodif-
firentes.
La premi2reest ~robablementla plus impor-
6e mostimportant.You have here a resolution tante. I1 y est question d'une r&olution s'ap-
;,,,ring a generalConventionon the privilegespliquant 8I'ensemblede la ConventiongCnCrale
,ndimmunitiesof the United Nations, a Con- relative aux privilegeset immunitb de I'Orga-
I.zntiwhichthe GeneralAssembly is invited nisation des Nations Unies, Convention que
now in final form so that Members I'AssembliegCnCraleest invitCe8 adopter d&
j, -ediately beginto takethe necessarysteps maintenant soussa fonne definitiveafinque les
:senablethem to accede toit, and so that the Membresde I'Organisationpuissentprendre les
?+\<iegesd -unities ofthe United Nations premikresmesures nCcesahes pour pouvoir y
k2, b. definedby a preciseinstrument. This adhCreret que les privilegeset immunitk des
Conventionisthe resultoflongand very Nations Unies soient fix& dans un document
ierdedwork.If onecountsthe time givento it pricis. Cette Conventionginkrale est le rbultat
. 5 LoePreparatov Commission as wellas the 1de travam prolong&et tris approfondis.Si l'on
,dh @\teato itinthe sfi Co-ttee of thiiI fait le comptedu temps que hi a consacri la
.wembly,thid ocumenthas been under close, 1 Commissionprkparatoire,ainsique de la somme
:2nstant detailed&cussion for a period of de travail qu'il a demandCe8 la SShe Com-
3;:lessthatwomonths. missionde la pr&enteAssemblCeo , n voitque ce
document a CtCsoumis & une discussionserrk,
constanteet dQaiUCe qui nk pas pris moins de
deux mois.
I nowturnto the seconditem in the report. Je passe au secondpoint du rapport. 11 vise
Tnatsecondit= is a .resolutioncovering an- une rholution s'appliquant&w autre projet de
he: draftConvention,but thiis the draft oa Convention,un projet de Chnventionsficiale
~ecialConventionbetweenthe United Nations entre Yoretion, des Nations Unies et les '
ad UnitedStatesofAmerica asthe country Etats-Unis #Ameriqueyen tant que Pays
the seat of our Organizatiois to be lequelsera CtabIiIe siegede notre Organbition.
iruated.Whereasthe generalConventiori.isap- flttendu que la Convention!$nkde ~PPE-
to Membersof the United Nations cable &tous lesEtatsMembresdesNationsUnies
andthe difference,if any,betweenhem is one et qUela diff6ren~eentre eux, ~'ilede UIE, -
cidegreandnotof.kbd, thisspecialConvention estune differencede de$ etnon Pasdenaw
tealwithspecialproblem which':arisfromthe cette Conventionspicide traite dm p~~blh~s
pxsenceofthe seatin the United States.Buin particuiien que sodeve I'i.mXdlationdu sihge
di sasethedocumentwhichispresentedto you aux Etats-Unis. Mais dans le cas d'esp&q le
bpresentedonlyas abasisof discussionfor the documentqui vous estsournisnyes phtC que
p~upose sf negotiationswhich it is pl-ed cornmebase de discussionenvue da &gocia-
siouldtakeplacebetweenthe Secretary-General, tions qu'on envisageentre le Secdtake ghw
cntheonehand, and the proper authoritiesin damePart, et lesautoritb comfitentes deE-
theUnitedStates,on the other. Iis alsosug- Uh, d'autre Part.n Y rn P~PQ~Ggal~11ent
med that the Secretary-Generalshould bas- que le Secdtaire g6n6ralsoit XSbt6d'un~01Xkit6
ked bya committeeof ten, and the names of de dtrmembra; la des pays lquels
~e countriesfrom whichthe members of fiat figure dansIesecondprojet de &olution. cornit6
committeaere to be chosenare set out in the
seconddraftresolution.
Thentherefollowfourfurtherresolutions.The Viennentensuitequatre autres &olutions. La .
ofthese,whichis the third item in tre- premiere,qui fait Pobjet du troisibe point du
Pn, concernsthe privilegesand immunitiesof rapport, a traitx privilegeset irnmunitb de la
&..InternationalCourt ofJustice.The effectof Cour intamationale de Justice. En rhm6, de
tu, shortlisthat the judgesare askedfirtsot propose que les juges soient invit6 d'aborB
ccaiderthe questionthemselvesand to =press 6tudier eux-mergesla question et?tfaire con-
k& viewsandrecommendations,and then that naitre leur manitre de voir et leurs recornman-
tiin-iattrhouldbe consideredby the General dations, et que la question soit sod ensuite
-bemblyaftertheviewsofthe Court itselfhave i 1'AsembiCe$nMe lorsque l'opinion de la
h received. Cour elle-mbe sera connue.
ne nsrtresolution,whichisthefourth item, La &olution suivantequifait I'objetdu qua-
=*& \\?&theimportantand possiblysomewhat tribe point du rapport concune la question
"?~licatedquestionof the co-ordinationof the importante et peut-etreassez complexe de la
Fn'%F andimmunitiesof the United Nations - coordinationdesprivilegeset immunit6 de 1'0r-
L'dthespecializedagencies.The object othis ganisationdes NationsUniesavec ceux des ins-
'=!~-luhb to startthe machincry + motion titutionssp6&ies. Cette dsolution a pour ob.
*%ch be necessaryto produce tlm cwr- jet de mettre en mouvementle mdcanismeper-
''%tion,andthereforitproposesthat the Sec- mettant bassurer cette coordination et,P cet
'??-&d should open negotiationswith a &et, ellesuggkrequele SecrtStake&6d entre-
':m toreconsiderationi,n the light both of therenne desn6gociationsenwe de &examiner,
??"ualConventionand ofcertainconsiderations la lumike de la Conventiong&rale et de cer-
are mentionedabove, of the provisions taines considhtions mentionn6esci-dessus,la
..*under which the specializedagenciesat present dispositionsen 1 desquellesles institutions
enjoy privilegesand immunities. spCcialisCejou&e:ic des privil6geset immunit&
dont ellesbCnificientactuellement.
The fifth item isa mall, simple,but possibly Le cinquihe point a trait A une question
quite important matter froma practical point simpleet pluslimitdemaisqui peut, dupoint de
of view. It requiresthat the officialcars of thevue pratique, avoir une grande importance.La
Organization should be insured against third r6olution privoit l'assurancedes voituresoffi.
party riskand therebyprevent apossiblesource cielles de l'organisation contre les accidents
of grievance arisingfrom the immunitiesof our caw5 Bdes tiers; cette assuranceest destinig
Organization. iviter une source de griefspossiblesprovenant
des immunitb accordies A notre Organisation.
Lastly,thereisa resolutionregardingarrange- Enfinvientune rhlution relativeauxdispai.
mentsthat maybe madesothat officials,persons tions& prendre pour pennettre aux fonction.
who are now in the serviceof the Governments naira et aux personnesactuellementau service
of Members and who are traderred to the des Gouvernementsdes Etats Membresqui pas-
serviceof the United Nations or secondedfor sent au service des Nations Unies ou sontdi-
servicewith the United Nations, shouldbe!able tach&auprb de cette Organisationde conserver
to preserve those pensionsightswhich have ac- lesdroitsaux retraitesou pensionsqu'ilsontac-
crued to them whilethey were in the serviceof quis pendant leurs annies de serviceauprh dc
theirownGovernments. leur Gouvernement.
Allthese si temsare presentedto the Assem- L'ensemblede cessixpoints estexpos6?APAS-
bly in one report which, in fact, coversabout semblie dans unrapport unique qui en faitre-
half the whole work of the Legal Committee. travaux de la Cowonnviron ddes questionsjuri-
are set out in the report,together with trea- diques..Bienquele rapport fode uneoudeux
sons therefor,allthe items were approved in r&mvesenindiquant la raisonsqui lesmotivent,
Committeeunanimously,and we hope therefore tous les points exposis ont rqu Papprobation
that the samedty may prevailin theGen- unanime de la Cornmiion et nousespironsque
eralAssembly. la mihe unanimiti sera obtenue BlYAssembltt
gGn6rale.
The ,PRESXDENT (Tra1~~Zation from the LeMSIDENT: La parole est P Sir Hartley
French) : I call upon Sir HartleyShawcmss, Shawcrosi,repAentant duRoyaume-Uni.
representativeof the United Kingdom.
Sir HartleySHAWCROS (Snited Kingdom) : Sirf Hartley SHAWCROSS (Royaume-Uni)
I want just to say a fewwordsto commendthe (Traduction de Panglais): Je n'aqiue quelques
two draft Conventionswhich have been submit- mots &dire.Je d&ke vousrecommanderlesdew
ted to the GeneralAssemblyby the Sixth Com- projetsde Conventionqui ont it6 soumisBPAS-
mittee,and mayI sayjust a word firsaboutthe sembKegin6rale par la SixikmeCommission er
specialdraft Conventionwhich has been submit- je vousparleraid'abordbri2vementdu projet de
ted by the Committeefor the purposesof nego- Convention spiciale qui a it6 prh6 par la
tiationwith the United StatesofAmerica.' Commissionen vue des nigociations avec la
Etats-Unisd'Amiriquel.
That Convention,as the Assembly willappre- Ainsi que IaAsemb16epourra s'en rcndn
ciate,has been put forward.as a basisfor nego- compte,cetteConvention ait6 prkentie comme
tiations withthe United States,and itisfair to base de nigociationsaveclesEtats-Unis.Ilcon-
saythat the United Statesthemselves, consider- vient de remarquer que les Etats-Unis em-
ing that thi sas a matterin whichthe Organ- rnhes, considirant qu'il s'agissaiten I'esptce
ization was on one side and they were on the d'une question dans laquellePOrganisationda
other, took no actual part in the discussionsin Nations Unies se trouve d'un cat6 et leEta=-
the Committeeabout itstoodasideand are not UnisdePautre,n'ont prisaucunepart auxd13bt~
committedby it. Xonethe less,weattemptedto soulevb au sein du Cod6 B ce sujet,mais
take into account, as far as we could, allthe sont abstenuset n'ont donc contract6aucuna-
legitimate considerationby which the United gagement.NOUS ne nous en sommespas moins
States might reasonablytake exception. efforcb de tenir compte, dans toute lamesure
du possible,de touteslesconsidirationl6gitima
susceptiblesd'intdresserlesEtats-Unis,iinous
estarriv6parfoisdemodifierlespropositionspfi-
senties, afin de parer aux objections quenous
pamkaientt devoirraisonnablementsoulevercu-
tains pointsde la part des Etats-Unis.
I mentionthosepointsjust to emphasizethat, C.a remarques ont uniquement pour but de
although,of come, thisdocumentismerelyput souhgnerque ce.document,bien quailn'ait hi-
forviardasa basisofnegotiation,it isnot put for- dement it6 prhtd qu'Atitre de basedenip
ward asa kind of lis otf maximum demands ciations,ne constituepas unesorte de listds
which we do not expect to see accepted, and demandesmaxima quc nous ne nous attendons
whittled away by a processof bargaining;It is pasA voir'adoptGeset que nous accepterionde
put forwardasasolidbasisofnegotiationinorder Convention~estprbentt! en vuede co~t-timerc
4
'Seepage 650. Voir page 650. (I ,,indicat..;lineswhich we thinkin,principle, basesolidepour lesnigociationset ila pour objct
he Conventionought to take. Adjustments, of de marquer, dans sesgrandeslignes,I'aspectque
- course,there must be,adjustments up and ad- la Convention devraitrev&tiren principe. I1y
j-ents do^, but we hope that the United aura lieu ividemment de proc6der B certains
State.willfeelablein principle, to accept the ajustements dansI'un et I'autre sens, mais nous
drafin the termin which it is put forward. espirons que les Etats-Unis seront disposis en
principe2 accepter les termes du projet itabli.
I want torefer in particular to sect7onof Je tiens Bfaire une allusionparticuliiBela
hat draft.Sectio7ofthe draft special Conven- sectio7 de ceprojet de Conventionspicialeavec
donxtiththe UnitedStatespermitsthe establish- lesEtats-Unisqui permetI'installationdestations
mentof broadcastingstations on behalf of the radiophoniquespour le comptede I'Organisation
rnited Il'ationsOrganizatiIsupposethat one des Nations Unies. Je crois que I'un des plus
cfhe greatest obstacto understanding and to grands obstacles2 la comprkhension interna-
univin this world,whichisracked by so many tionale et BI'uniti d'un mondequi se heurtB
lital and difficultproblems, is the lack of anyant de problimes d'une difficult6et d'uim-
sourcefromwhichthe peoplesof the world may portance extrimes est I'absence d'une source
arcertaioin.anauthoritative fonn information autorisie qui permettrait am peuples du monde
f abouteach other's difficultand about each d'itre inform& de leurs difficult6 respectetes
f o&efsspecialpoinrsof view.The national press de leurs points de we particuliers. La presseet
andthe national broadcasting organizationsof les organisationsde radiodiffusionnationalesdes
i differetountries,whether they are under some diffirents pays,qu'ellessoientplacQ sousle con-
measureof Governmentcontrol or whether, as trciieplus ou moins Ctendu de leur Gouveme-
4 inthi sountry,they are completelyfree tex- ment, ou bien, comme c'est le cas pour notre
( ) presswhateverviewthey like,naturally and in- pays,qu'ellessoiententikrementlibresd'exprimer
evitablytend to discuss and to report matters leur point de vue, ont inivitablement et tout
iroma national point of view and to stress na-naturellement tendanceB &cuter et B exposer
tionalspectIfgreat debatestake place, debates certainesquestions d'unpoint devue national
inwhichthe statesmenof different countriespar-B mettre l'accent sur I'aspectnational qu'elles
.ticipat,he national press of each particular prkentent. Lorsque de grands d6bats intern-
countrynaturally tends to report and tends to tionaw ont lieu, dCbatsawquels prennent part
emphasizethe speechesof its own statesmen to les hommes dYEtatde divers pays,la pnsse de
theneglect,sometimes,ofthmen which may chacun des pays intCressb a naturellerncnt ten-
beput forward in the speechesof other states- dance Bpubliera B mettre en relief Iesdiscom
men,and sometimesto the complete exclusion prononcb par ses propres hommes d'Etat, en
oft4 eiewswhich may be expressedby states- nggligeantparfoislesr6ponsesdesautres hommes
men ofothercountries.And so,inthe result, the d'Etat et en ornettant totalement les vueex-
opinionof each countrissometimesin danger primies par les membres des gouvernements
ofbeingformedon a biased national basis and d'autrespaysIlen rWte que, dans chaquepays,
ofbeingarrivedat in ignoranceof both sidesof I'opinionrisque parfois de se former sur la base
thequestion d'infomations partialeset d'ignorerque la ques-
tion a dew ~8th.
Webelievethat in the lonrun that doesnot Nous estirnons qu'a la longue cela necon-
tribue pasA redorcer Pautoritkd'un gouvernc-
thatitcertainlydoesnot make fornit yn inter- ment nationalni certesA Ctablirl'uniti dansle
nationalaffairs.It inot enough that nation domaine international.Ilne suffit pas qu'une
shouldspeak unto nation. We think that the nation s'adressc une autre nation. Nous pen-
United Nations Organization, as an organiza- sons que IYOr@ation des Nations Unies en
tionof United Nations, mustbe able to speak, tant qu'organisationinternationale doit pouvoir
and to speak fearlesslyand impartially, to thes'adressersanscrainteet en toute impartiaM
peace-lovinpeoplesof the wholeworld; and so aw peuples pacifiques du monde entier. Nous
weventureto expressthe hope now, at the very esp&ronsdonc, au moment oii nous nous epga-
I beginnin gfthi msatter, that secti7nof this gems dans &%tevoie,quelasection 7 du projet
draft Conventionwith the United Statesshall de ConventionsaveclesEtats-Unisne resterapas
notprove to be a dead letter. The mattewill lettrcmorte. La question devra etre mise au
haveto be workedout indetail.Arrangements point dam le d6tail. I1 conviendra de prendre,
hillhaveto be made both in the United States, aussibien aw Etats-Unisque dans d'autrcspays,
and no doubt in 0th- countries, for relaying des mesurespour relayer les Cmissionsqui pour-
broadcasttsat may be made; but we hope it ront fitre faiteMais nous @rm qu'il sera
, ha be possibleto takeearlysteps to implement possiblede prendre, sanstarder, desmesurespour
provisions ofseaion 7of thiCsonventionand donner effetaux dispositionsde la sectio7 de
I '0stablishradiostationsfrom whichthe United ladite Convention etpour installer dg stations
( XationsOrganization may givethe world the radiophoniques d'oii I'Organisation des Nations
i w, the courageto face it and the knowledge Unies poum dire la v&k I'univers et lui
: '0solvethe problemsw-ich the truth involves. donner, avec le courage de la regarder en face,
C les informations nkcessairespourluipernettre
de rQoudre les problbes qu'elle comporte.
Now Iwantto say a word or two &out, and Je d6ire maintenant dire quelquesmots pour
'0canmurd to the Assembly,the draft Conven- recommander lYAssemblC leprojetde Convm- - uurr t)llbLI~g~IIU UILIIIUIIILICanu I want tion relata aux priviltgeI. .anitts1 dontje
to refer to certain particular aspectsof that Con-tiens ?isoulignercertains asps;>articulieD.&
vention. But at the very outsetwant to tell the l'abord, je dCsirefaire connaicre ?i l'As~embl(~
Assembly this: that it is .the intention oHii qu'il entre dans les intentions du Gouvernemenr
Majesty's Government to accede to this Con- de Sa MajestCd7adhCrer B cette Conventiondam
ventionwith the least possibledelay, and task le plus bref dilai possible et de demander
the Parliament of this country for any necessary Parlement de notre pays les pouvoirs nicessaires
statutory powers which may be required to pour que nous puissionsmettre en ceuvreIesdk-
enable us to implement to the full the provisionspositions. de cette Convention. Nous espCrom
of this Convention. We hope to be, andI expect stre, et je pense que nous serons la premiltre
we may be, the first of the Powers to accede to Puissance qui donnera son adhesion Bce docu-
thismostimportant document. It is an important ment d'une importance capitale et historique.
document and an historic document.
It isimportant that in settingthi gsreat new I1est important qu'en Ctablissantcettegrande
intemational Organization we should not ask for Organisationinternationale nouvelle,nousnede.
it topossessprivilegesand immunitieswhich are sant ceux qui sont nicessairesau bon fonctionne.
greater than thoserequired for its efficientorgan-ment de IIOrganisation;toute politiquediffCrenre
ization.That would lead to unnecessary conflicts ne manquerait pas de porter inutilement atteinte
with the national sovereigntyof particular Mem- 2tla souveraincti nationale des Etats Mernbra;
ber States. On the other hand, equallyimportant D'autre part, il importe Cgalement d'assureri
isit to ensure that it has adequate privilegesand I'Organisation'lajouissance des privilegesit des
immunities. To give too few would fetter the immunitk nCcessaires.En accorder trop peu
I United'Nations Organization in the discharge aurait pour det d'entraver l'organisation des
i of ittasks.The Charter providesthat the immu- Nations Unies dans l'accomplissementde ses
I nitieaand privilegesto be granted should be such fonctions. La Charte stipuleque lesimmunitiset
i asarenecessaryfor the fulfilment of its purposes, privilige2 accorder aux Nations Unies doivent
toric document does. Within the scope and the- 2tre suffisants pour permettreP lyOrganisation
! ambit of the Charter thi s onvention will give d'atteindresesfinet tel estexactement ler&dtat
'i the United Nations Organization, in every Mem- quJobtint ce document historique important.
ber State, a sufficient degree of sovereigntyn Dans l& limites et dans le cadre de la Charte,
regard to its own affairs to enable it to carry cette Convention assurera B l'organisation des
out its functions independently, impartially and Nations Unies, sur le territoire de chacun des
, efiiciently. Etats Membres, Ie degrCde souverainete qui lui
estindispensablepour sespropres affaires,enlui
pennettant ainsi de s'acquitter de sa ache avec
impartialit6 et compCtenceainsiqu'entouteind0-
pendance.
-
I do not want to refer, however, to this mat- Cependant je ne veux pas vous entretenirde
terin general terms. Asyou wiU have seen from cette question en ten- gCnCraux.Come vous
the report,certain States,I thin knly four in le verrez d'aprk le rapport, certainz Eta* ,
number, have felt it necessaryto make reserva- quatre je crois--ont estimi nicessaire de formu-
tions on particular points which are dealt with intrait& dans la Convention. Je ne songe pas unies
the Convention. Ido not for a moment complain seul instantB mlClevercontre cela. Yous com-
tion which these different States have had to prenons tres bien la situation dans laquellese
trouvent les diffirents Etats intiress&. D'impor-
here, oneof them, perhaps,na constitutionalmat- tantes questions sont en jeu danscette Conven- 1
ter, and itsnot so easy forsomedelegationsasit tion; l'une d'entre elles relkve peut-itre du do-{
isfor that of the United Kingdom here, right at maine constitutionnei, et il n'est pasaussifade
the seatofitsown Government, to obtain instruc- pour certainesdeligations de recevoirdesinstruc- t
tionsand to obtain authority in regard to particu-tions de leurs gouvernements respectifset d'oh-
larmatters.But wedo venture to expressthe hope tenir lespouvoirs nicessairesdans des casdonne?
that the delegates of those States which have que pour la dCligation du Royaume-Gni qui .;c t
found it necessaryto make reservationsnow will trouve au lieu meme ob si&geson propre Gou- 1,
be able to persuade their Governments to with- vernement. Mais nous tenons 3.exprimer norre
draw those reservations and to accede to this espoir que les dt5Iigu&des Etats qui ont ju?t
Convention unconditionally. utile de formuler.des rkerves pourront arnener I
leum gouvernements B ne pas y donner suite
A adhirer sans restrictionBla Convention, i
May I justremind the Assembly about the Jeme perrncts de rappeb 2 I'AssemblC eb
three mattus in regard to which reservations trois questionsau sujet desquellesdesrkervant
i have been made? They arise under section 18 it6 faites. Ellesont trait aux articles 30et
and under section 30 of the draft Convention. projet de Convention. Pour ce qui est de l'articie
Under section 18, I think it is clause 18 (b), 18 b), certains Etats ont jug6 nicessairedefaire i
' some States have found it necessary to make a une rtserve provisoiresur le point de savoirsiIes
reservationfor the moment in regard to the ques- fonctionnaires de IYOrganisation des Nations
'Seepage 644. 'Voir page 644. IIE
[icnwhetherofficialsof the United Nations Or- Unies devront Stre exon&&de lYirnp6nt atioz-1.
ranizati~nshould be relieved of national taxa- Cette question, comme on vous I'a exposi,Cr6
son. That was a matter which, as you have soumise i l'examen de la Cinqui&meCommis-
f heard,was consideredby the Fifth Committee. sion. I1 s'agissaitCvidemmentd'une question de
It waobviouslya matter of convenience;it was commoditi; il serait naturellement fhcheuxqu'il
ob.viouslnexpedientto have officialsof the Or- existh dans IYOrganisationdes ionctionnaires
,&ation at the same level remunerated on a qui, occupant le m2me rang, recevraient une
basiswhich,in effectand in itsrealvalueto them,imuniration ne reprisentant pas, en fait, le
differed.But that was a matter of convenience mihe pouvoir d'achat riel. Mais c'est la une
question de commoditi qui a it6 traitie par la
dealt~vithbythFift Committee. Cinquiime Commission.
The matter to which we attach great irnpor- La question i Iaquelle nous attachons une
:anteasa matterofprinciple.isthat which arisesgrande importance, en tant que questiondeprin-
2nderclause 18 (c) and which deals with the cipe, est ceUequis'ilive relativerneitI'article
1 imuniv of officialsof the United Nations from 18 c) et qui traite de I'exemption des fonc-
znyoblig?tionofmilitaryserviceto their nationalionnaires des Nations Unies de toutes obliga-
jr,rs. Weare attemptingnowto setup an inter- tions de service miIitaire envm les Etats dont
j nadona!civilservice.We want it to be ainter- il sont ressortissants.Nos effortsactuelsvisPnt
$ narionaicivilservice,to be free, to be independ-abh une administration intemationale. Une
car.-4man cannot serve two masters, and we telle institution doit Eue Iibre et indipendante.
beiievethat it will be impossibleto estabIishann home ne peut pas servir deux maitres, et
internationalcivil servicein the best sense ofnous estimons qu'il sera impossible d'instituer
rilword,inthetruesenseofthe word,ifits mem- une administration internationale dans le meil-
bersremainunder militaryobligationsto particu-leur sensdu mot, dans le vrai sensdu motsison
iarMemberStates. personnelrestesournisi desobligationsmilitaires
enversles pays Membres auxquelsils appartien-
nent.
Loyaltyto one'sown State, allegianceto one's La Ioyaut6et la fidditi enverssonpropre pays
country,are very important and, indeed, sont dessentimentsadmirableset dont je mesure
vey admirable things.But, as civilization pro-laimportance.Mais avec le prop& de la civilisa-
m?~ and as thi sreat Organization of the tion et avec le d6veloppementde I'Organisation
cnited Nationsmovesforward, there isperhaps desNations Unies, une vertu plus grande et plus
somethingwhichisgoingto become evengreater admirable encore que cessentimentsse divelop
andmoreadmirablethan these, and that isloy- pera peut-etre: la loyauti envers les Nations
air).to the United Nations, allegiance tthis Unies, l'obiissanceP cette grande Orgarhation
greatOrganization whichwe are founding. You que nous sommes en train de cr6er. On ne peut
cannothave a dividedloyalty;you cannot have partager sa loyaut6 entre deux maitres, on ne
ir thismatter two allegiances. peut obCii deuxsouverainetk.
\Yeare askingvery little of the States in re- Or, Pce propos nous demandonstr&peu aux
prd to this matter. We are not askingthem to Etats intires&. Nous ne leur demandonspas de
giveup battalionsor divisionsof their national renoncerZides bataillons ou des divisionsde
armirs-the national armies that we hope will leurs armies nationalesarm& auxquelles,nous
nc\*ereusedagain. We are askingthem merely l'espirons, on n'aura plus jamais recours. Nous
toreleasea handful of meinorder that wemay ne leur demandons que de IibCrerune poignCe
arablisha civilservice whichis truly htema- d'hommes a£inde pouvoir itablir une adminis-
tionaland truly freI.ventured to givein the tration qui soit vraiment internationale et rCde-
Committee a case, a case which is completely ment Libre. Devant la Commission, j'aiex-
h!pothetical,in order to showhow impossibleit po&, i titrepurement hypoth6tique, une thk
~\.ouldeifmembersof our Secretariatremained visant?idemontrer l'impossibilit6dans laquelle
mdu military obligation to their own States. setrouvent les.membresdu Secdtariat de rester
Supposingthatinsomecaseit werefound neces- sou- aux obligations militairesvis-2-vides
Say toinitiate a systemof sanctions agaithe Etats auxquelil appartiennent. Supposonsque,
hired Kingdom. I can give that case quite dansun cas donn6, isaav5renkcessairede mettre
dd!; forHisMajesty'sGovernmentbelieves in en mvre un systhe de sanctions contn le
theprincipleof accepting majority decisionsof Royaume-Uni Je puis prendre cet exunple sans
GeneralAssemblyand will always accept aucun risquecar le Gouvernementde Sa Majest6
kclions duly arrived at under the Charter. estpartisandu principe de l'acceptationds dC-
~~nctionsilnever beoperated against us. But cisionsde la majonti de lYAssembl&g6nCraleet
de thatasa hypotheticalcaseand supposethat acceptera toujours les dtcisionsdhenprisesen . .
"me memberof the Secretariat, a British sub- vertu de la Charte.11n'y aura jamais de sanc-
j-~, wain those circumstances calledupon to tions B prendre contre nous. Mais, prenons cet
~xrformhis duties of military service fthe exemple A titre dyhypoth&eet supposonsqu'un
I rnited Kingdom.What would be the position membre donn6 du Secdtariat, sujet britannique,
ken? Where woulcL.hisloyalty lie? Would he soit amen6 dans ces conditionsP s'acquitter de
the United Nations or would he serve the ses obligations de service militaire enversle
rnited Kingdom?One cannot riskthat kind of Royaume-Uni. Quelle serait alors la situation?
I ~onfkt,that kind of divisionof allegiance arb Oii serait son devoir de citoyenloyal?Devrait-il
/ "",and I hope veryearnestlythat those States servir les Nations Unies ou bien leRoyaume
'k'"~havefelt compelledto make reservations Uni? On ne peut s'exposer A des confiitsdece
I . ..-.-.-...I~~A ~~cv ~~ISULLUCltlCl1 ~CLILC,ccj apere olen .at que ceuc dcS
Governmentsto accede to this Convention pn- Etats qui ont it6 amen43. :.,rmulerdesrQcn,
conditionallyand that they wiUfind their hands trouveront le moyen de ;ersuader leun &".
strengthened indoing that by the fact that all vernementsde donnerleuradhisiontotale8cent
their colleagueshere have beer,able to approve Conventionet que le~rpositionse trouveraren.
it with unanimity. forcie du fait que tousleurscolleguesauronpU
donnerleur approbation ?la Convention Brun=.
nimiti.
The kal matterto.whichI want to referonly J'en arrive au dernier pointitsavoirla set.
in a word is section 30.of the Convention, tion 30dela Conventionquitraite du renvoi der,
which dealswiththe referenceof disputesto the difftrends B la Cour internationalede Justice.
International Court of Justice. Two or three DeuxoutroisEtatsont jug6nicessairedeformu.
States found.it necessaryto makesome reserva- ler desrkerves sur ce point.Je ne puism'empb
tionin regard to that matter. I could not help cher de penser que cela est dG au fait quela
thinking there was some misconceptionin re- questionn'a pas it6 bien comprise,itant donn~
gard toit, becausethat provisionforreferenceof que la clause relativeau renvoides Hirends i
disputes under the Conventionto the Interna- la Cour internationalede Justicen'estapplicable
tional Court only comes into operation in the que dansle casoii les partiesen litigen'onpu
event of the partiesto a dispute not being able rigler le difF6rendpar un autre moyenquelcon.
to agree to its settlementby any other means.If que. Pour le casoii lespartiesen litigetombant
partiesto a disputeunder thisConventioncan- sousle coup de la prhte Conventionn'anive.
not agree to a settlementby any other means raient pasQ s'entendreilnoussembleindispen.
then itisis iur view,quite essentialthat some- sable que la convention comporte une clause
thing shouldbe providedin the Conventionso as pennettant der6glerlesdiffirendsqui pourraient,
to ensurethat disputes,3 they unhappilyarise, malheureusement,&lever. Dam laconventions
aresettied.It wasthe common practicein every internationalesconcluesaprb la criation dela
international conventionentered into after the Sociit6 des Nationsil itait d'usagede pdvoir
establishmentoftheLeagueofNationsto include des dispositionsde ce genre. Personnene s'est
a provisionof thiskind. Nobody ever objected jamah ilevd contre cette pratique qui semblait
to it; it was takeasa.matter of course.And if tout ii fait naturelle. Si nous voulonsconsidk
we are goingto treat thimsatter seriously,if we la questionsirieusement,si nousnouspropotam,
intend notonlyto accedeto thi Csonvention,but non seulement d'adhdrer cette Convention,
to operate it and stand by it, it is essentialthatais de veilleriisonapplication et de la dl-
atthi msoment,whenweare surelymovingfor- fendre,ilestindispensable,au momentohnous
ward rather than backwardin regardto the rule' faisons certainement un pas en avant plut6t
of lawininternationalaffairswe should include qu'enarri6redansle domaincdu dgne du Mi
a clauseofthis kind,rememberingthat thi wsas dans lesafiaires internationales,de prdvoda
the common practice beforethe war, and that dispositionen ce sens,en nous rappelant quc
we should not take a retrograde stepin regard ca6taitI&une pratique couranteavant laguem
tothe matter. En aucun cas,ilne faut recuierencettematikc.
I thereforecommendthesetwo draftConven- En consdquence,je recommandeco,deux pro-
tions tothe GeneralAssemblyand I hope we jets de Convention ii l'Assembl<eg6nirale er
shalladoptthem unanimouslyand that al ltates jYesp6rqu'ellelesadoptera 4 l'unanimitdetque
willbe able to accedeto them inthe very near touslesEtats pounont y adhdrer trb prochainc-
future. mat.
e PRESIDENT (Tranrlation from the Le PR~SIDENT L:a paioleestB M. Vanden-
French) : I call upon Mr. Vandenberg, repre- berg, reprhentant des Etats-Unisd'Am6rique.
sentativeof the UnitedStatesofAmerica.
Mr. VANDENBER (Gnited States of Amer-
ica):I riseonly to makethe positionof the dele- M. V~ENBERG (Etats-Unis dSAm&ique)
gation of the United States perfectly plainin (Tmduction de Panglair):Je neprends faparole
regard to the reports of the Fifth and Sixth que pour prdciserl'attitudede la daigatioda
Committees. We havereserved our position in Etats-Unis relativementaux rapports des Ci-
respect of tax immunitiesin regard to the re- qui6meet Si&e Connmissom.Nousavons ri-
ports of both Committees.TheConstitution of sew6 notre positionen ce qui concerne Itsk?-
the United Statesgivesthe AmericaC nongress munit6 fiscalesenvisageesdans Iesrapports
sole power to exempt Anencan citize fosm cesdeuxCommissionsL . a ConstitutiondesEta=
taxation. Unis confkre au Congrib amdricain evdush'c
ment le pouvoird'exon6rerd'imp6t h citoyens
am6ricains.
The distinguished delegate fo; the. United L'binent d4l6guCdu Royaume-Uni a,,
Kingdom made a very interestingand moving tames (mouvants, fait un expos6fort inter?
appeal in respect of rival allegiances,and sug- sant relatif au codit d'obtissances,et a didarc
gested that a man cannot serve two masten. qu'un homrne ne pouvait servir deux ma!?
Quitein the spirit inwhichthe able delegatefor Inspirie desmkes sentimentsqueceux quiapl-
the United Kingdomspoke,the delegationofthe ment le dCl6guddu Royaurne-Uni, laddigauon
United Statesdoesnot proposeto save two mas- des Etats-Unis ne se propose pas non pl~ dc
ters. Its masteris the Constitutionof the United servir deux maitres. Son seul maitre, c'est1%
States.This does not, however,meanthat the Constitutiondes Etats-Unis.Nianmoinsceci ne
i attitude of the Governmentof the United States signifiepas que le Gouvemementdes~tats-U&h ne s'inspire pas d'un esprit de cooperationsans
- ; totdi: at one with a co-operativeattitudreserveet, en tant que payshbte, il ne manquera
&?crfr.hollyhospitablein regard to all co-oppas d'adopter cette attitude vis-A-visde cette
( donwhich we,as the host country, shall undergrande Organisationlorsqu'ellese mettra au tra-
,& @its way. Indeed, even so far as privilegesil. En fait, en ce qui concerne les privilhges
immunitiesare concernedI am veryhappy I et les irnmunitis, j'ai le plaisirde vousfaire con-
,,,y that the last sessionof the American Con-itre que le Congrb amiricain, au cours de sa
,, hasalreadypasseda statute whichincludes,demikre session,a vote une loi qui, dans la pro-
ishouldsay, about ninety-five percent of theportion de quatre-ving-quinze pour cent envi-
;hb,pwhichthe report and general Convention ron, donne d6jAsatisfactionam demandes for-
fromtheSkth Committeeanticipate. mulCespar la SixihmeCormnissiondans le rap-
I port et dans la Convention gCnCrale.
The delegationof the United States also re- La deligation ds ~tatc-~nis rQerve bgale-
! gres its positionin respect of national servicet son attitude en ce qui concerne I'exemp
I nemptiom under the general Convention re- tion du service militaire natibnal envisagie par
,: ?s~edby the Sixth Committee.This again is la Convention gCnirale qui fait I'objet du rap
: .5~eto the fact that the Constitution of the port de laSixitme Commission.Cene attitude
j( VnitedStatepermitsno authority other than estdue au fait que la ConstitutiondesEtats-Unis
! rhe mericanCongressto deal witthi s atter, ne permet B aucune autre autoriti en dehors du
andwe are not in a position to prejudge thatCongrb de traiter de cette question,et nous ne
uirimaconsideration. sommespas Bmhe de prijuger la dicision qui
sera prise ultirieurement sur ce point.
With these exceptions, we have been very Sous ces ,rdserves, nous so&es heureux
happyto acceptthe balance of the report of thedopterlesautres partiesdu rapport la Cin-
Fif thmmittee,and we are very glad to vote,quihe Commission et de nous prononcer en
~iththesereservations,for the general Conven-aveur de la Convention ginirale avec les 1-6-
tion. servesque je viens de formuler.
Sofar asthe specialConventionisconcerned, En ce iui concerne la Convention sp&ciale,
wesha llstain from voting,becausethe specialous nous abstiendrons de prendre part au vote,
Conventiois one to which the Governmentof Ctantdonni que le GouvemementdesErats-Unis
theUnitedStateswillbe a party, and we con- iefait inoppomunpour nous de prkjugelaques-ttout
siderit would be.inappropriate for us to pretion ici.
; judg tee casehere.
InthiestireattitudIwant to repeatthat the ter que le but, I'intentionet le d& profond non
purposaend the intention and the heartfelt dseulement de la daegation des Etats-Unimais
circnot only of the delegation of the Unitedaussidu peuple amiricain, sont d'accordertoute
speakforthemintthimsatter with completejus- I'aideet toute la coopiration possiblesb lJOrga-
Scation,is to extend every consideration,andnisation des Nations Unies dam Pentreprisla '
; :Ogiveeverypossibleco-operation,to the Unitedlus grandiose de I'histoire de l'humaniti qui
SationsOrganhation as it proceeds upon the suscitedesigrands espoirs.
wt~ and most hopeful adventure in thhis-
toryofhuman kind.
The PRESIDEN(T Translation from the Le PR~SIDE N11n'ya plusd'orateursinscrits.
French:)As there are no more speakemon the Nous allonsdonc procider au vote. Je penseque
h, we shallproceed to vote.I thin he best la fason de proceder la plus claire consiBte
methodisto vote on the resolutions oneby one,oter successivementsur les diffirentes rhlu-
a thatdelegationswhicwish to abstain on any tions, ce qui permettrait en outre aux d&ga-
particuladrecismay do so. tionsqui le d6irent de s'abstsurcertainesdes
dicisionsBprendre.
The lixresolutionconcernsthe general Con- La premii:re riklutioestrelativeB Padop
ventionon privileges and immunities of the tion de la Convention&Me sur lesprivilPges
CnitedNationsIs thereany objection to this et imxnunitE2 acwrder A1'Organkation.11n'y
Ifthereis none, isadopted. a pas d'oppositioB Padoption de ce texteSi-
Pi non, je considereraila hlutiocommeadoptkc..
? Decision:The resolutionwasadopted. Di?cision:La rksolutionest adoptke.
) The PRESIDEN(T Tradation from the ..Le PRESIDENL T: deuxibe hlution est
French) The secondresolutionis that concernrelative aux n4gociatioAsentamer avec les au-
kgnegotiatioto be entered inwiththe com- torit& compt5tentesdes Etats-Unis d'Amkique
Pnat authoritiesin the United States with rsur les dispositioBprendre b la suite de 1'6ta-
I ~d to the measuresto betakenin connection blissernentaux Etats-Unis d'h6rique du sik
litthe establishmentin the United States ofpermanent de l'Organisationainsiqu'au projet
'1permanentheadquarters cfthe United Na- de Convention desGnCb servir de base de dis-
mu,togetherwiththedraftConventionto serve cussion pour ces nigociations. Je mets ce texte
tat.asiof discussio1.call for a vote this aux voix.
i
1 Dpirion: The rrrolutionwas adopted, with , Dkisian: La rksolutionest adopt&: tly a
owabstention. 1une abstention.
455 mr"t of $-,e She:? CrnItt~~!
6. PR~VILEGES A%.i, IMMUNITIES OF TEE Sccrion 6. In exercisingits rights u~der:;t:bio
5 above. the I:r.i:edNations shall.av due :DT~
.o any rep..-cn:zdons made by the Govem.zr.: oi
;?c-M: P-:r --so far asitisconsidered thaceEect
can be gwen to suc'lrepresentations without derri-
OENEIUL CONVENTION ON PRIVILEGES AND 13f3fL'- ment to the interests of the United Nations.
NmES OF THE US~ED MATLONS ,ND TEXT OF
THE CONVENTION. Section 7. T'C..T--;;lt~dNations, it: assets, in-
The General Assembly approves the annexed come and other property shall be:
convention on the privilegesand immunities of the
United Nations and proposes it for accession by (a) exempt from all direct taxes; it is under-
each Member of the United Nations. stood, however, that the United Nations willnot
B claim exemption from taxes which are, in frct,
Thirty-first plenary me~ting, 12 February 1946. no more than charges for public utility services;
CONVENTIO NN THE ??RIV~LEGES AND IMMUKIRES (b) exempt from customs duties and prohibi-
OF THE UNITED NATIONS tions and restrictions on imports and e-ports in
Whereas Article10Q of the Charter of the United respect of articles imported or exported by the
Nations provides that the Organization shall enjoy United Nations for its official use. It is under-
in the tenitory of each of its Memben such legal stood, however,that articlesimported under such
capacity as may be necessaryfor the exercise of its exemption will not be sold in the country into
functi6ns and the fulhent of its purposesand which they were imported except under con-
Whereas Article 105of the Charter of the United ditions agreed with the Government of that
Nations provides that the Organization shall enjoy country;
in the territory of each of its Memben such privi-
leges and immunities as are necessary for the ful- (c) exempt from customs duties and prohibi-
filment of its purposesand that representatives of tions and restrictions onimports and exports in
the Members of the United Nations and officials respect of its publications.
of the Organization shall similarlyenjoy such privi-
legerand immunities as are necessary for the inde- Section 8. While the United Nations will not,
pendent exercise of the functions in connection as a general rule, claim exemption from excise
with the Organization: duties and from taxes on the sale of movable and
Consequently the General Assembly by a resolu- immovable property which form part of thep&c
tion adopted on 13 February 1946 approved the to be paid, nevertheless,when the UnitedNations
following convention and proposes it for accession ismaking important purchases for official use of
by each Member of the United Nations. property,on whichsuch duties and taxeshave been
charged or are chargeable,Members will,whenever
possible,make appropriate administrative arrange-
ARTICLE I ments for the remissionor return of the amount of
Juridical Personnlity duty or tax.
Section 1. The United Nations shall passess
-- juridical personality. It shall have the capacity: ARTICLIE 11
(a) to contract; 'Facilities inrespect of Commum'cptions
(b) to acquire and disposeof immovable and Section 9. The United Nations shall enjoy in
movable property; the temtory of each hiember for its officialcom-
(c) to institute legalproceedings. munications treatment not less favourable than
that accorded by the Govemment of that bfembrr
ARTICL 1E1 to any other Government, including i~ diplomatic
mission,in the matter of priorities, rates and taxes
Property, Funds and Asszts on mails, cables,telegrams, radiograms, telephotos,
Section 2. The United Nations, its property telephone and other conmunications; and press
and assets wherever.located and by whomsoever rates for infonnation to the press and radio. No
held, shall enjoy immunityfrom every form of legal censonhip shall be applied to the official com-
processexcept in sofar as in any particular case it pondence and other officialcommunications of the
.hasexpressly waived its immunityI. t is, however,
undersd that no waiver of immunity shdl ex- United Nations.
tend toany measure of execucion. Section !O. The United Nations shall have the
Section 3. The prezisp,sof thc Unit4 Nations right to use codes and to dispatch and receicr, its
shallbe imiolable. The property and asea of the correspondence by courizr or in bags, which sW1
United Xations, wherever !oczted and by whomso- have the same imm-mitiesandprii7eges as diplc-
everheid,shdl be immune from search, requisidon, made courien and bags.
confixation, expropriation and anyother form of
interference, whether by execu!ive, administrative,
judicial oriegislativeaction. ARTICLIE V
Section 4. The archives of the United Nations, The Representatives of Members
and in general alldocuments belonging to it or held Section 11. Representatives of M-aben to the
by it, shdl be inviolablewherever located. principal and subsidiary organs of the United Na-
tions and to conferences convened by tbe United
Section 5. Without being restricted by financia! Nations, shall,whilf exercising their functionsand
controls, regulations ormoratoria of any kid, during their journey to and from the place of
(a) The United Nations may hold funds, gold meeting, enjoy the followingprivilegesand immu-
or currency of any kind and operate accounts in nities:
any currency;
...?::*:....:it',-.,.<....,..-,.-....,. .t...r. .- (a) .,m:-..-...rom.+...;--l arr....,:,.eten-
..... . . .. ..*- .".........
any2:c-cy.*2.:held.by it:intoany:.other.currency..,; ..., .. . . ..- . . . . . .
allacts done by them intheir capacity as repre- sentatiws, hnunity from legal procen of every
kind ; Oficids
Szc:ion 17. The Secretary-Genenl will specify
(b) inviolability for all papers and docu- the categories of officialsto which the provisioru
ments ; of this articand article VII shall apply. He shall
(c) the Sght to ux codes and t~ receive submit these catgor;es to the Gen4 .&embly.
papels or correspondenceby courier or in seded Thereafter these categories shall be cornmunicatea
sass; to the Governmentsof all Members. The names of
the officialsduded in these categoriesshall from
(d) exemption in respect of themselves and time to time be made known to the Governments
their spousesfrom immigration restrictions, aliens of Memben.
registration or national serviceobligationsin the
State they are visiting or through which they
are passingin the exerciseof their functions; Szction 18. Officials of the United Nations
(e) the same facilities in respectof currency shall:
or exwe restrictions asare accorded to rep (a) be immune from legal processin respect
resentativesofforeign governmentson temporary of words spoken or written and all acts per-
.officialmissions; formedby them in their officialcapacity;
(6)be'exernpt from taxation on the salaries
(f) the same immunities and facilities in re- and emoluments paid to them by the United
spect of their personal baggage as are accorded Nations;
to diplomaticenvoys,and also;
(G) be immune from national service obliga-
(g)such other privileges,immunities and fa- tions;
cilities, not inconsistent withthe foregoing, as (d) be immune, together with their spouses
diplomatic envoys enjoy,except that they shall and relativesdependent on them, from iwnigra-
duties on goods imported (otherwise thanustomsas tion restriCtionsand alien registration;
part of their personal baggage) or from excise (c) be accorded the same privilegesin respect
du,tiesor saleraxes. of exchange facilitiessare accorded to the offi-
cials of comparable ranksfonning part of diplo-
matic missionsto the government concerned;
Section 12. In order to secure for the repre-
sentat?.= of hiembers to the principal and subsid- (f) be,given, togetherwith their spousesand
iary organs of the United Nations and to confer- relativesdependent on them, the same repatria-
ences cbnvened by the United Nations, complete tion facilities,ine of international crisi as
freedom of speech'and independence in the dis- diplomatic envoys;
charge of their duties, the immunity from legal (g) have the right to import free of duty
process in respect of words spoke12or written and their furniture and effects atthe time of first
shall continue to be accorded,notwithstanding that taking up their post in the countryin question.
the personsconcernedareno longer the representa-
tivesof Members. Section 19. In addition to the immunities and
pr:vileges specified in section 18, the Secretary-
General and all Assistant Secretaries-Generalshd
Section 13. Where the incidence of any form be accorded in respect of themselves,their spouses
of taxation depends upon residence, periods dur- and minor children, the privilegesand immunities,
ingwhich the representatives of Memben to the exemptions and facilities accorded to diplomatic
principal and'subsidiaryorgans of the United Na- envoys,in accordance withinternational law.
tions and to conferences convenedby the United
Nations are present in a State for the dischargeof Szction 20. Privileges and immunities ye
residence.ts sM1 not beconsidered as periods of granted to officialsin tlie interests the Unitec!
Xations and not for the personal benefitof the in-
dividuds th*dves. The Secretary-General shall
Sech 14. Privileges and immwities are ac- .kve the right and t!e duty to waive immunityof
corded to the representatives of 5ieslbez nct for any ofticid in any use where, in his opinion, the
t!!e pemnal knetit of the hdividuds rkernselves, *munity would inpede i?e course of justice and
but in order tosaieguardChe independent exercise can be waivd wit\out prejudice to t!!e interesrs of
cf their functiors incomrction with .the United the Vnik Nations. In riie cse of t!x ,&cretary-
Nations.Consequeatly 2 Member no: only has the Geqerai,the Securirj Councisl hal! have the right
right but iswder a dilttoywaivethe immunito yf :o waiveimmunity.
of the Xernbe. the irnrnurity would impedeopkithe
course of justice, 2nd it can be waived without Section 21. The United Eations skd cooper-
p~judice to the purpose for which the immunity ate atall timeswith the appropriate authorities of
is accordd. Memben tofacilitate the proper adminLtraticn of
justice,secure the observanceof police regulations,
and prevent the occurrence of anyabuse in con-
Scck'on 15. The provisions of sections 11, 12 nection with the privileges,immunities and facili-
and 13 are not applicable asbetween a representa- tiesmentioned in thisarticle.
tive and the authorities of the State of which he is
a national or of which he is or has been the repre-
sentative. -.-
s<ct:$z 15. I2 :<s %-Cc:* CI2 e:ca,-<.2:I:.>-- :'r '.?:Cb 1
mentatives" shall be dwrned to inciude.all.deie- . ~-p,-;i ti,;.ibiititja LLLzi&i;dd 2iu;i"tu
gates,deputy delegates, advisers, technicalexperts Section 22. Experts (other than offis com-
and secretariesof delegations. ingwithin the scopeof article V) performing mis-
i !c 26 sioru for fieUnited Nations :hall be accorded such
privilegts and L-nnunirles as are ntcwj fcr t!!c
indtpende~t exercise of their functions during the Sectlm 29. The United Xatiorfi shall ms4c
of their missions, including the time pent provisionsfor appropriate modes of setderne.;..tof:
on journeys in wnnection with their missions. In
oarricular they shallbe accorded: (a) disputes arising out of contracts or other
(a) immunity from personal arrest or deten- disputes ofa private law charzcter, to which the
tion and from seizure of their personal baggage; United Nations is a pan).;
(b) in respect of words spoken or writtm and (b) disputes involving any official of the
acts done by them in the wune of the perform-
ance of their mission,immunity from legal prcx- Un~ted Nations who by muon of his oficial
ess of every kind. This immunity from legal position enjoys immunity, i£immunity has not
been waived by the Secretary-General.
process shall continue to be accorded notwith-
standing that the penons concerned are no Section 30. All differences arising out of the
longer employed on missions for the United interpretation or application of the present con-
Nations ; vention shall be referred tothe International Court
(c) invidabiiity for all papers and docu- of Justice, unless in any case it is agmd by the
ments; parties tohave recourse toanother mode of settle-
(d) for the purpose of their communications ment. If a difference aris between the United
with the United Nations, the right to use codes Nations on tile one hand and a hiember on the
and to nreive papers or correspondence by other hand, a request shall be madefor an advisory
courierM in sealedbag-; opinion on anylegal question involved in accord-
(c) the same facilities in respect of currency ance wit11Article 96 of the Charter andArticle 63
or exchange restrictionsas are accorded to rep- of the Statute. of the Court. The opinion given by
the Court shall be accepted as decisive by the
resentativesof foreign governmentson temporar).. parties.
official missions; '
(f) the same immunities and facilities in re-
spect of their penonal baggee as are accorded Section 31. This convention is submitted to
to diplomaticenvoys. 'every Member of the United Nations for accession.
Section 23. Privileges and immunities are Section 32. Accession shall be effected by de-
granted to experts in the interests of the United pit an instrument w'& the
Nations and not for the penonal benefit of the of the United Nations and the convention shall
individuals ~emselves. The SecretKy-General , come into force as regards each Member on the
have the n'ght and.the duty to waive the immunity date of deposit of each instrument of accession.
of any expert in any case where, inhis opinion, the
immunity impede the course justice and Section 33. The Secretary-General shall info*
it can be waived without prejudice to the interests
-.of the.United Nations. all of the United Nations of the deposit
of each accession.
ARTICLE VII
Section 34. It is understood that, wk an in-
United Nafions Laisst-z-Pascr strument of accession is deposited on behalf of any
Section 24. The United Nations may issue bfemkr, the Member will be in a position tfnder
United Nations laissez-parscrto its oEcials. These its own law to give effect to the terms of this con-
loissez-parsershaII be recognized and accepted as vention.
valid traveldocuments, by the authorities of Sfcm-
bers, taking into account the provisions of section Section 35. This convention shall continue in
25. force as between the United Nations and 'every
Member which has deposited an instrument of ac-
Section 25. Applications for visas (where re- cessionfor so long as that Member remains a Mem-
qrrirr3) from the ho!ders of United Sations kaisszr- Se: of tiie Unit& Nations, or until a revbed gen-
passer, when accompanied bya certiiicate that they eral convention has been agprwed. by the General
se tnvelling on tle busineu of the Uai:ed Na- .herr.bly and &A: Member hts become a party ro
tions, shallbe dealt with as speedily ;rspcssible. In this revised coovention.
addition, sud! persons shall be gw.ced facilities
for speedy travel. Sec:ion 36. Tne Secremq-General may con-
clude wit5 any Sfern'beror Mern'wrssupplementary
Sec:ion 26. Similar faccides to kcie specified agreementsadjusting &e provisions of this consen-
in section25shall Se accorded tocxpem and otL,er ti~nso far as ha: Munber or t!!- Members are
persons who, though not the holders of Uni:ed coccemed. These supplementary agnev-en!s shai:
Nations Luissez-Fusser have a ceficate that they in each casebe subject to the apprwal of tleGen-
are travelling on the business of the United eral Assembly.
Xations.
B.
Section 27. The Secretar).-General, Assistant RESOL~~'O"REUTixG 10 NECOT'L'-TIo N SH
~ ~ ~ ~ ~ ~ r i ~ - ~ nd~ ~~~i~l~~~~ travelling on THE COMPETEST AZI'TWORITIES OF TKZ UNITED
united pjations laissez-parseron the businessof the STATES OF AHER~CA CONCEKVING %E ARRSNGE-
United Nations shall be the same facilities ME"'S REQUwD AS A RESULT OF THE ESTABLISH-
asare accorded todiplomatic envoys. HENT OF THE SEAT OF THE Uxm NATIONS IN
THE UNITEDSTATES OF AMERICA AND TEXT.OF A ,
....:.. '.. "."..-.. .......-.,:....? -,:..:-...; :?..\:.::::..?.:;:;.:.:.'tz::.:i;:.;-=2 ..a.\::,;:.?
........, =... : ......: :... -: ---.....:.......... ;...........'.....
agencies if the agreements for relationihip made 1. The General Assembly authorizes me decre-
under Article 63 of the Charter so provide. tarpGenerd1 (with the assistance of a, committee commpposedoottpersons appointed byy heegoovernmeentss Szction 3. The Government of t!!e U~ird
of A-ustralia,Bel-iurn, BoiivinLG&nz,-Cuba,Ewt, Sta:es of America underskes, on the enty iqto
Francce,Pooland,,%rruteTKiin&rrnZni_oon offSoviett force of this convention, to cause to bc vested in
I istKee ullcICStoto negotiate w~tii fiF<ompe- the United Nations possessionimmediatelyand fuil
%?%$%tie~'ofs of''tthhee ~iitteddSuutes off hemhcraica ownership assoon as possible of all Imd in the
the arrangements required as a result of the esub- zone as shown in annex I and of all buildings sic-
lishment of the sent of the Cnited Sations in the uatrl thereon at the time of transfer.
United.States of America.
2. The followingdmft convention is transmitted Szction 5. The Government of the United
by the General .bsernbly to the Secretary-General States of herica shall be responsible for expro-
for usein these negotiations asa basisof discussion. priating and compensating so far as necessaryand
3. The Secretary-General shall report to the as soon as possible all interests in land and build-
General hembly the results of these negotiations. ings conveyed to the United Nations.
4. Any agreement apart from purely temporary Szction 5. Having regard to section 4, the
a,gents with the competent authorities of the United Nations shall pay to the United States of
United States resulting from these negotiations America a fair price for any land and buildings
shal ble subject to approval by the General Assem- conveyed to the United Pu'ations.The amount so
bly before being signed on behalf of the United payable shall be credited to the United States of
Nations. Anerica in the accounts of the United Nations and
Thirty-first plenury meetizg, 13Fzbruary 1946. shallbe set off, during such period as may be fixed,
agzinst contributions due from the United States
CONVENTIO BETWEEN THE UNITEDNATIONS AND ofAmerica. In default of agreement, thips rice and
THE GOVERZ?MEN TF THE UNITEDSTATES OF tf. pSeriod shall be determined by an expert se-
AMERICA lected by the President of the International Court
ofJustice.
(Thi draft hasbeen prepared onthe assumption
that there will be no private persons living within Section 6. The United Nations shall have ex-
the zone containing the seat of the United Na- clusiverights over the subsoil of land conveyed to
tions.) it, &d in particular the right to make construe-
tiom underground and to obtain therefrom supplies
of water. It shall not, however, have the right to
exploitminerals.
Desiring to conclude a convention for the pur- Section 7. The United Nations may establish
poseof carrying out the resolution adopted by the in the zone any type of installation which it deems
General Assembly .....................,t..est.bl... necessaryfor the purpose of its work, and in par-
the seat of the United Nations in ......................ticular may establishitsown radio telegraph send-
and to regulate questionsarising asa result thereof: ing and receiving stations, including broadcasting,
Have appointed as their plenipotentiaries for this teletype, and telephoto services. The United Xa-
p'==P'==: tions shall make arrangements with the Interna-
The United Nations ..............................tionalTelecommur.ications Union with regard to
Secretary-Gencral wavelengthsand ocher similar matters. .
The Government of the ....................................
United States of America Section 8. The Government of the United
who have agreed as follows: Statesof America shall,at the request of the Secre-
tary-General actinig n pursuance of a resolution of
the General Assembly, cause to be vested in the
IJnited Nations possession immediately ,and full
ownership as soon as possible over such further
Section 1. Ir, thisconvention: land as may berequired for the purpose of con-
(a) the expression "zone" means the area re- structing an airport, railway station, or radio tele-
ferred to in section 2, inc!udiog any additions to eraphic station or for such other purposes as may
it; & required by the United Nations. The provisions
(b) t!e expression "iaw of the 'CniredStates vcyed.tions 5, 5 and 6 shzll apply to land so con-
of America" includes fcderai, state, and local
laws,however designated ; Scccior!9. In the event of the lznd contleyed
(c) the exprssitln "Gwemmen: oi the'i'nked i?zccordance with section 8 not being contiguou
States of America" inc!udes a Stxtr or a iomp- to the remainder of tie zone, the Gm-emmest of
tent state authority wherever the con:exr so re- the United States of America shall guu~ltw un-
quires; impeded communication and transit between parts
(d) the expression "c~urts of the 'United of thezone.
States of America" inc!udes federal and state
couns ;
(e) the expression "United Nations" means Law and Authority in the Zme
the International Organization established by Section 10. The zone, including the air space
the Charter of the United Nations. aboveit and the subsoilbelowit, shall be inviolable.
ARTICLE 11 Section I1. Save as otherwise provided in this
convention,the zoneshall be under the control and
: ThTL,ni..-N-r -I.,TT-:..-I?T~+L..-.h,ii authorityof the United Pu'ations.
-.La.--.--..:...-.A----- ...-........-...J-.,4,.:A ~.r:~:p~ !?. T.v:c:?r:27ej,2<;.be70 :?+ yr:+.+:,:-
,-*A .cn.L?: ~r.2;.'~kiih.i.3:-3%22fleI.A.;:.i:::C\ci ;..,-;zec;:.z.:1i: .:>.; v,.-..a..2. CI ::::L-::;:.:
may be made laterto this area inaccordance with ~iatesof America renounces jurisdiction over any
the provisions of section8. matters relating to entry into thezone and to the condi:ions under ~vhichpersons may remain or re- specrive oi the relations existing behveen t5ei.r
side there, 3r.d over any mat:ers relating :o :he Govenm~,r,t and the Govcnntnt of the United
consuuction or removal of buiidings in the zone. Sta:es of .America, o5ckls both of the Uni:ed
Sations and of the specialized agencies, and the
Sec:ion I?. Otiicem or oEcizls of any author- fanilis of these representatives and officials,sha!l
ityin the territoq of the United States of .Amer- at all times enjoy the right of unimpeded and safe
ica, whether administrative, judicial, military, or transit through the territory of the United States
official dutiestherein escept with the pemission ofAmerica to and from the zone.
of and under conditions agreed by the Secretary-
General. The service of legal process, including the Section 21. The accredited representatives of
seizure of private property, shall take place within news agencies, whether press, radio, or films, and
the zone under conditions approved by the Secre- of non-governmental organizations recognized by
the United Nations for the purpose of consultation,
rI raSectional14. IVithout preiudice to the ~rovi- shallalso enjoy the rights referred to in section20.
$ionswhich are contained in annex I1 and iubse- Section 22. Immigration and other regulations
quently in the General Convention referred to in in force in the United States of .herica, regarding
oificials of the United Nations and of the repre- the entry and residence of foreigners, shall not be
sentatives of Siemben, the United Nations shdl applied in such a manner as to interfere with the
not permit the zone to become a refuge either for rights referred to in sections 20 and 21. Visas re-
penons who are avoiding arrest under the law of quired by the persons referred to in those sections
the United States of .America or are required by, shall begranted without charge, without delay and
the Government of the United States of America without requirement of personal attendance for the
for extradition to another country, or for persons issueof the visa.
tvho are endeavouring to avoid service of legal
process. Section 23. The Government of the United
Section 15. Subject to section 16, the law of States of America shall give or cause to be given
the United States of America shall apply witkin facilitiesfor the issue of visas to, and for the use
the zone, and in particular the ordinary civil and of the available means of transport by, penons
criminal law. coming from abroad (other than those referred to
in sections20 and 21) who desire to visit the zone.
re,Dulationsmaking provisions of an administrative The Secretary-General of the United Nations and
character for the zone. Any such reglation shall shall, at the request of either of them, enter into
prevailover any provisionsinthe law of the United discussion with regard to the application of this
States of America which are inconsistent with it.' section.
It is agreed that Leithin the zone the protection
afforded by the Constitution of t!!e United States Section 24. The provisions of this anicle shall
to penond liberty and to the basic human free- not prevent the Government of the United States
doms of espression and wonhip shall not be Iess- of America from taking precautions in the interesa
ened, 2nd no form of racial discrimination shall be of national security, provided that such precau-
-. permitted. tions shallnoc have the effect of interfering with
Scc:iox 17. The courk of the United States of the rights referred to insections 19,20 and 21.
.Americashall, without prejudice to 2ny provisions
ni annex I1 and subsequently of the General Con-
venric.nrei2rred to in ection 32, have jurisdiction ARTICL E
over aco done and transactions taking place in the Rlsident Repressntatives to the United Nations
zone, in the same manner si they have over sim- Section 25. Persons accredited to the United
ilaracts and transactions taking place outside the 1 Nations by Members as resident representatives (
zone. and their staffs, whether residing inside or outside
Secdon IS. The courts of the Unired Sutes of the zone, shJU be recomized bv the Govemmnnt
America: when dealing with cases arising out of of the United States of A~enri- en~i!fedon
or re!ating to acts done or transactionj taking place temtorv to the samep-ri4qes. %nd'+muniti& as
in he zone, shsilta!ccco~izance of the reylations t%~ovemer.t accords to the diplomatic envoys
enact.-d by the United Sations under section 16, I accredited to it, and thestaffs of these envoys.
rhoug'n:hey shnll not be oblised to izfiic: penalties
for infraction of such rep.tla~ons udess ti?eGov-
ernment of the United Szates cf herica has
a~ed to thae reg~lationj hiore :be infrxtion
w,u commitred. Section 26. The Governmmc of the United
Statesof herica shall cause to be provided on the
boundaries of the zone such police protection for
the zone as is re~uired, 3rd shal belrtlsponsibiefor
Comrnunicatio.wand Tsarsit to and from the Zone ensuring that th'e tranquillir): of the zone isnot
disturbed bv the una~thorized entry of bodies of
Section 19. The Government of the United personsfro* outside or by disturbkces in its im-
quate means of communication to and from thes ade- mediate vicinity.
zone through the territory of the United States of
America, for the passage of persons, the uansmis- Section 27. If so requested by the Secretary-
sion of postal correspondence and telegrams, and General, the Government of the United States of
the transport of goods required for use and con- America shall cause to be provided a sufficient
sumption in the zone. fc:.I.*--.p-..-.*:--p-rform duties inside the zone ,
h........--...-..-..................--,* -....-...%....- r
or are suspected of having committed or of being shall be com?!enentary to the provsiorr, oi Lie
about to commit ofiences, including iniractions to gcacra1 convention and, undl the Goverment of I
the administrative regulations of the Unitcd the United States of .L~erica becomes 3 party to
Xatiom. TIe general convention, to the provisions of anncs
.~TICLE VII
Stction 34. In so far as any .provision of this
Public SerLdcesfor and t!:z dmznitizs of tht Zonz convention and any provision of tiie general con-
Section 23. The Government of the United vention (or of annes I1 as the case may be) re!3te
~tltes of America willexerciseall the powers which ts the same subject matter, the two provisionsshill,
it possessesto ensure that the zone shallbe supplied wherever possible,be treated 3s complementary, so
on equitable terms with the necessary public serv- that both provisionsshall be applicable and neither
ices (including electricity, water, gas, post, tele- shall narrow the efiect of the other; but in any
phone, telegraph, drainage, collection of refuse) we of absolute conaict, the provisions of this con- gP
and that these servicesshall not be interrupted. In ventionshall prevail.
caseof any interruption or threatened interruption
of any of these services, the Government of the ARTICLE X
United States of America will consider the needs Final Provisions
of the zone as being of equal importance with the Section 33. This convention, having already
essentialservices of the United States Government been approved by a resolution of the General .%-
itself. Consequently, in that event it will take all sembly,shall enter into force as soon as the Gov-
thosk steps which it would take in case of inter- ernment of the United States of America notifies
ruption or threatened inte'mption of these serv- the Secretary-General that it has all the porvers
ices to thc essential Departments of the United necwary to fulfii the provisions of the convention.
States Government to ensure that the work of the The Government of the United States of America
United Nations is not prejudiced. shall take every possible step to enable it to give
this notification assoon as possible,and in any case
Szction 29. The Government of the United not later than..............................
States of America shall be responsible for ensuring Section 36. This convention shall remain in
that the amenities of the zone are not prejudiced force so long asthe seat of the United Xations is
and the purposes for which the zone is required maintained in the territory of the United States of
arc not obstructed by any use made of the land in America.
its vicinity.
S2ction 37. The seat of the United Nations
shall only be removed from the territory of the 4
~Mcltters~ehtin~ to the Operation of United States of America if the United Nations
'this Convention should so decide.
Section 30.' The Secretary-General and the Section 38. If the seat of the United Nations
Government of the United States of America shall is removed from the territory of the United State
settie by agreement the channel or channels of America, the Government of the United States
through which shall be conducted correspondence of America shall pay to the United Nations an
relating to the application of the provisions of this equitable sum for the land in the zone and for all
convention and w other questions affecting the buiidings and installations thereon.An expert nom-
zone.If the Secretary-General so requests, the Gov- inated by the President of the International Court
ernment of the United States of America shall ap- dl Justice shall decide, in default of agreement be-
point a special representative for the purpose of . tween the parties, what sum is equitable, having
liaisocwith the Secretary-General. regard to
In so far as the fulfilment of this (a) the then value to the United States of
Section 31. .Americaof the land, buildings and installations;
convenzionrequires co-operation and action by any and
state or other non-federal authority of t5e United (b) the cost incurred by the United Nations
States of.America, the Government of the Unitel in acquiring the land and in erecting the build-
St3r.mwill conclude with that state or authorin ings an6 instal!ations.
such agreements a are neceszar]; for this purpose.
Ti12 conclusion of these ageemena, together wit!! Section 39. Xay difierence between the U~ited
UnitedacStares and by :hessS~E,legs'r,abencompleed Nations and t!e C-overnrnentof ih2 United Sra:es
before the notice k $-;en whish is required ucder ci.Americaconcerniz~ the inrr~recation or appti-
section 35 to k given by &e Gnvemrnenr of the cation of rho ccjnveaticn or of any ,supplementary
United States of America b+fc.re his corlvenii~n agreement or agreezent which is not jetded by
enters into force. nqbtiauon shail be relerred to the arbitrarion of
an umpire appointed for the purpose by the Preji-
dent of the International Court of Justice.
Section 40. Either party may askthe Generd
Relation bet~een this Conuentimr and the .&scnDly to request of the Internationa! Court of
Cenercl Concention Justice nn advisory opinion on any legal question
Section 32. Until the Government of the arising in the coune of the proceedings referred
United Sates of .4mericz becomes 3 party to the to in section 39. Pending the receipt of the opinion
general convention relating to the privileges and of the Court, an interim decision of the umpire
immunities of the United Xations, the provisions shall be observed by both parties. Thereafter the
of annex I1 shall apply between thc United Na- umpire shall render a final decision, havinq regard
tions and the Government of the United States of :o the opinion of the Court.
..............ea_-......".e-p~ov ~ $s1~be sre- IN WITNESS THEREOF THE 4ROVE->lESTI?SET)
. -...-.:.........,"..,'L~..-..:: .-:.T.r.IC.;:::.::- :,................................................--\.
.......L.. :;:.\:~3..::1.t ::::.:1':1:::L::: .:.:.:;
canveniion ~rniiirisin opemdrin. '
Section 33. The provisions of this convention ANNEXI
MAP FaciIities in rzspcct of Comnunicciions
(Not reproduced here) Section 9. T'r.e Unitcd Nations shall enjoy in the
territoryof the United States of bcrica for its ofiicial
AmExII communicatiorntreavncnt not las favourablethan that
&~TICLE 1 accordcd by the Governmcnt of the Unitcd Sc3ccsof
America to any othcr government, includingits diplo-
Juridical Personality matic mission, in the matter of priorities, rates and
Section 1. The United Nations shall possessjur5d- t~xes on mails, cables, telegrams,radiograms, telc-
icalperson-.!icy.It shall have the capacity: photos,telephoneand othcr communications; andpress
(a) to contract; rates for informarionto the pressand radio. No censor-
(b) to acquire and disposeof immovable andmov- ship shall beappIied to the officialcorrespondenceand
able property; other official communicationsof rhc Unitcd Nations.
(c) to institute legal proceedings; . .
AR~cLz? TI Section 10. The Unitcd Nations shall have the
right to use coda and to despatch andrccave irs cor-
Property, Funds and Assets respondenceby courier or in bags, whichshall have the
Section 2: The United Nations, iu property and same immunities and privilegesasdiplomatic couriers
assetswherever located and by whornscxverheld, shall and bags.
cnjoyimmunity from everyform of Ic$ processexcept ARTICL EV
in so far as,in any particular case, it has expressly
waivedits immunity. It is, howcvcr, understood that no The Representatives of Members
rxecution immun.ty shall extend to any measure of Section 11. Reprcscntativesof Membersto the prin-
cipal and subsidiary organs of the Unitcd Nations and
Section 3. The premisesof the Unitcd Nations shall while exercisingorheir functionsand during their jour-
be inviolable. The property and asrs of the United ney to and from the place of mecdng, beaccordedby
Nations, whcrevu located and by whomwer held, he Governmcnt of the Wted States of America the
shall be immune from search, requisition, conhrcation, following privilegesand immunities:
expropriation, and any othcr form of interference,
lative action.ecutive, administrative, judicialor legis- (a) immunity from personal arrest or detention
respect of words spokenor written and all acrs done
Section 4. The archives of the Unitcd Nations, and by thun in their capaaty asrepresentatives, immu-
in general all documcnu belonging to it or held by it, nity from legal processof evuy kind;
shall be inviolable wherever located.
Section 5. Without being restricted by tinancid (b) inviolabilityfor 311papen and documcnu;
controls, regulations of moratoria of any kind, (c) the right to use codu and to receive pap
, (a) the United Piations may hold funds, gold or or correspondenceby courier or in sealed bags;
currency of any kind and operate accounts in any (d) exemption in respect of themhra and their
currency; spouscrfrom immigration restrictions,aliens registra-
(6) the Unitcd Nations shall be free to transfer tion or nationalservice obligationsin the State they
iu funds, gold or currency becwecnthe United States are visiting or through which theyare pasing in the
of Americaand any other State, aradfrom one place exerciseof their functions;
to another within the United States of America, and (e) the same facilities in respect of &rrency or
- currency.t any currency held by it into any other exchange restrictionsas arc accorded to rcprscrrta-
dves of foreign governments on 'tcnporary ofiicial
Section 6. In exercising its rights under scction 5 missions to the Governmcnt of the Unitcd Stares;
above, the Unitcd Nations shall pay due regard to any (f) the same immucitics and facilities in respect
' representationsmade by the Government of the United of their personal baggage asare accorded.to diplo-
States, in so far asit is considered that effect can &c matic envoys,and also;
given to such reprcscntations without detriment to the
interestsof the United Nations. Jg)such othcr privileges, immunities and fadli-
Section 7. The United Nations, its assets,income matic envoys cnjoy,except that theygoinshall have no
and other propertyshall be: right to claim cxemp:ion from customsduties on
(a) exempt from ai! direct taxes; it is understood, goodsimpomd (othersise than aspart of their per-
however,that the United Xations will not claim es- sonal baggage) or from exciseduties or sales taxes.
emption fromaxes which are,in fact, no more than
chargcsfor public utilityservices; Section 12. In order to secure for the represecta-
(b) cxempt from customs duties ~d prohibidom tivu of Membersto the pri~cipaland subsidiaryorezv
and restrictions or.imports and ctwrts in rape:: of of the United Nations and :o confcrcncu convenedby
articles imporred or txportc6 by 6c Unitcd Natioi~ the UN'ted Nations, completr freedom of speech akd
for irs official use. It is understood, however, L!! ir:dependenccin the discharge of their duries, the in-
articla imported un$er such exemption will not be mdty from legxi process in respect of words spoken
sold in !he United states of .-imerica except under orwritten and all acts donebv themin dischargingheir
conditions agreed with the Governmentof the United duties shall continue to be kccorded, norxithstanding
States ofAncriu; th3t the personsconcernedare no longerritereprescr.ta-
ic) exempt from customs dutics w.d. prohibitior? rive;of 3iunbers.
andrestriction; on:.mporrs2nd exports tn respect or
irs pubiicatior~. Section 13. Where the incidence of any f0.m of
Section 8. While the Urrited Xatiom will not, asa taxation depends upon residence, periodsduring w~ch
general rcle, claim exemption from excise duties and the representatives of 3lembers to the principal and
fromtaxes on the sale of movableand immovableprop- ences convened by the United Nations are present iner-
eny which formpar;of the price to be paid, neverrhc- the United States of America for the dischargeof their
1 chasesfor official useof property on which such duties duries shall not be considered asperiods of residence.
and axes have been charged or arc ~hargeablc, the
Go~ernment of the United States of America will, Section 14. Privilegesand immuniriesarc accordcd
whenever possible, makea-ppropriate administrative ar- to the repr~encacivs~of,Mun nobtefrr the personal '
r=nqc~.c?.:s f~: iterer;.:;j:sr. o:*I.'= 0: .'-._L_...,__. -.....-.-,. ..^_..-..--:-.-~-.....+-!rce.;rlir.s:.'cr:,:.
j&!;'c3'2Arrr, ...-........--.......*: ..--..-.......:z..
.. connection with the United Sariom. Conxqucnt!~ a ~ C L E VI
hiember not only has the right but is under ; du$ to
waive the immunity of iu rcprcscntative in any case Expzrts on ;%fissionsfor the I;ni:cd Na!ions
where the immunity would impede the course of jus- &c:ion 22. EK~C:U (other than officials cornizg
ticc, and it be waived without prejudice to the within the Scopeof article v) performingmissionsfor
purpose for which the immunity is accorded. the United Nsuons shall be accorded such privilcgs
and immunities asare neccssarv for the indeoendcx
Section 15. The provisionsof sections 11, 12and 13 missions,including the timc spent on journeys in con-r
may not be invoked against the authorities of the nection with rheir missionsI.n parucuisr bey shall be
t'nitcd Statesof .herica: accorded:
(a) by a national of the United States of America; .
(b) by a representative of the United Stats of and from seizureof their personal baggage;detention
America; (6) in respect of words spokcnor written and acs
(c) by a represcntativc of another hicmber, when done by them in the course of the performance of . Q
thatMunbcr hu waived the immunity in question. thcir mission,immunity from legal process of every
hind.This immunity from lqal processshall continue
Section 16. In chis article the e~prcslion "repre- to be accorded notwithstanding that the penons con-
sentatives" shallbe deemed to include all dclqgates, cerned are no longer employed on r&sions for the
taria of delqations.visers, technical experts and sccrc- Unitcd Nations;
(c) inviolability for a11papers and documenrs;
.~RTICLE V (d) for the purpose of their communicationswith
the United Narions, the right to usecodes and to rc-
Oficids ccive-ap-rs or correspondenceby courieror in scaIed
Section 17. The Secretary-General will specify the bags;
categories of officials tc which the provisions of this .(e) the same facjfiries in respect of currency or
article and article VII shall apply. He shall submit exchange restrictions asare accordcd to represents-
these categoria shall be communicated to the govcm- missionsto the Governmcnt of the United States of
menu of all hfembuf. The names of the officialsin- America;
cluded in thae carcgories shall from time to timc be (f) the same immunitirt and facilitia in respect
made known to the Government of the United States of thcir personal baggage asare accordcd to diplo-
of America. matic envoys.
Section 18. Officials of the United Natioru shall: Section 23. Privileges and immunities arc panted
(a) be immune from legal process in rapcct of to experts in the interests of the United h'ations and
words spoken or written and all acts puformd by not for the personal benefitof the individuals thcm-
them in heir officialcapacity; rclva. The Secretary-General shallhave the right and .a
(b) be e~anpt from taxation on the salaries and the duty to waive the immunity of any expm in any
emolwnmts paid to them by the United Nations; casewhere, in hisopinion, the immunity would impede
(c) be immune frcm national service obligations; the course of justice and it can be waived without
- (d) be immune, together with their spouses and prejudice to the interests of the United Nations.
relativa dependent on thun, from immigration re-
. strictionsand alien redstration; ARTICL VEII
4 (e) be accordcd the same privilcga in respect of Unite d ations Laissez-Passer
exchangefacilities as arc accorded to the officiaof Section 24. The United Xations may issue Unitcd
comparable ranks forming part of diplomatic mis- Nations Iaissez-parerto iu officials.These laifse:-parscr
sions to the Govenunent of the Unitcd Statcf of shall be recognizedand accepted asvalid travel docu-
America; ments,by the authorities of the Unitcd States of Arne:.
(f) be giva, togethcr with their spousesand rela- ica, taking into account the provisionsof section 25.
'tivcs dependent on thun, the same repaviation fa-
cilities intimc of international crisis asdiplomatic Sec!Ion25. Applications forvisas (where required)
uvoys; from the holders oi Unitcd Nations kisser-pasrer,when
(g) have the right to import free of durj their accompanied by a certificate that they are ravelling
furninue and cKecrs at the umc of first taking up on the business of the United Nations, shall bc dealt
their pt in the country in quation with asspeedily aspossible. In addition, such Fezions
shall be granted faciiitiu for speedy travel.
Sec:wn 19. In rddition to the immuiriticsand privi- Section 26. Similar faciliSes :o th0.u ;pciEtd in
legs specifiedin ;e+:tion18, the Strerary-General and section25 shdl bc accordcd to CK?:LT and other Der-
a3 .Lsi.ant Seuc:trics-Grnersi shall lie accorded in jons who, fiough nor t!e hoiders oi Uni:cd ~adocs
the privile3c and immuniticc,excmpdons and frdlitieren, Lcixesposrer,have a ccrjificntethat they are :nr.e!!.%g
accorded to diplomatic envoys, in accorciane with on the businessof t'e Cnircd Xadons.
international law.
Section 27. The Secretary-Gcner3i,.4xiistrr.tSec:c.
Sectiox 20. Privileges and immunities 3re granted taria-General and Dircc:on travelling on United Na-
to officialsn the interests of the United Xations and tionsIcirscz-pwscron the businessof the United Wa.
not for the pawnal baa&: of t!!e individuals &em- tionsshall be granted the same Iaciliticsas arc accorded
selves.The Secretary-General shall have the right and to diplomatic envoys.
the duty to waive theimmunity of any otEciaIin any
case when, in hisopinion,theimmunity would impede ~cctidn 28. The provisions bf this anicle may be
the cow of justice and can be waived without preju- aapliif the agreements for relationship made undergcn-
dice to theintercstr of the United Nations. In thecase Article63 of the Charter so provide.
of the Secretary-General the Security Council shall
havethe right to waiveimmunity.
ARTICLV EIII
. . ...
-.-.-..I_:___.-_--.-4 .--*..--.- ".'=': .LC......,..... ;.......--. '..-".-....-;..-L.i..............-.......
tion of justice, securthe obse-ec ot police rcgula- sionfor appropriate mod= of sctrlemcnt of:
tiolu, and prevent the occurrence of any abuse in con- (a) disputes arising out of contracts or othcr dis-
mentionedin thiasrirticle., imm,nities and facilities Natioru is a party;aw character,to which the United
I
- 32 . (b) disputesinvolving any officialof the Uetcd the convention on pdvileges andimmur,i-
S3:ions who by rcxjoo oj oE'.;i~p-...:--c.-.jyJ ties,which determines the detrils oi *.c ;?):i;z-
immunity, ifimmunity has not bcal waved by the tion of these wticles.
Secretary-General.
Thereforz thz Gzneral Asszmbly instructs the
C. Secretary-General to ensure that the driven of all
official motor-can of the United Sations and ail
RESOLUTIO NN THE PRIVILEGE AND IJIMUNI- mernben of the staff,who own or drive motor-cm,
TIES OF THE INTERNATIOSAC LOUXT OF JUSTICE. shall be properly insured against third party risks.
1. The Generd dssernbly, with a view to ensur- Thirty-first plenary meeting, 13February1946.
ing that the International Court of Justice shall
enjoy the privileges, immunities and facilities nec-
essary for the exercise of its functions and the ful- F.
.Y- filment of its purposes, in the counuy of its seat RESOLUTION RELATING TO ARRAiYGEMENTS TO BE
of and elsewhere,invites the memben of the Court at XME SO THAT OFFICIALS OF MEMBERS WHO ARE
v their first session to consider this question and to TRANSFERRFD OR SECONDED FOR SERVICE WITH THE
'JC UNXTELN I ATIONS SHOULD NOT LOSE THEIR AC-
n- inform the Secretary-General of their recommenda- CRUED PENSION RIGHTS BY REASON OF SUCH TRANS-
7c tions. FER OR SECONDMENT.
2. The General Assembly decides that the qum-
tion of the privileges and immunities of the Court In order to facilitate the engagement, as mem-
shall be consideredas soon as possibleafter the re- bers of the st. of the United Nations, of penons
ceipt of therecommendations of the Court. who have accrued pension rightsas officials,either
3. The General Assembly recommends that, un- of the centralgovernment of Members,or ofsubor-
ti lurther action has been taken, the rules which dinate governmental or other administrative au-
have been applied to the Permanent Court of thorities within the territory of Members, it is de-
sirable that arrangements shouldbe made to secure
International Justice should be observed by Mem- that accrued pension rights are not lost when such
bers in relation to the International Court of persons accept posts on the stafoff' the United
Justice. Nations, bywayeither of transfer or ofsecondment.
Thfrty-first Plenary meeting,13 February, 1916.
. Thcreforc, the General Assembly recommends
D. that:
RESOLUTION ON THE CO-ORDINATIO OF THE gfter such discussionwith the Secretary-General
PRMLECES AND I~~JIUN~IES OF THE UNITEDNA- as may be necessary to settle details the govern-
TIONS AND THE SPECIALIZED AGENCIES.. ments of Members adopt such legislative or ad-
ministrative measures as may be required to pre-
The General Assembly considers that there are
many advantages in the unification as far as pos- servesuch pension rights.
sible of the privileges and immunities enjoyed by Thirty-first plenary meeting, 13February 1946.
the United Sations and the various specialized
agencies.
While recognizing that not all specialized agen-
ciesrequire all the privilegesand immunities which
may be needed by others, and that certain of these
may, by reason of their particular functions, re-
quire privileges of a special nature which are not
required by the United Nations itself, the General The Esecutive Secretary sent .a circular letter
to the Members of the United Nations on 8 No-
Assemblyconsiders that the privileges and immu- vember 1915informing them that from the date
nities of the United Sations should be regarded, of the entry into force of the Charter treaties and
as a general rule,aj a maxirnurn within which the international agreements would be received and
various specializedagencies should enjoy such privi- filed on a provisional basis until the adoption of
leges and immunities as :he appropriate fulfilment detailed regulations prescribing the procedure to
of their respective functions may require, and that be followed in the registration and publication of
no privileges and immunities which are not really treaties and international a,geements under the
necessaryshould be asked for. provisions of Article 102 of the Charter. The Ex-
Therefore the Genera! risszrnbly ins::ucts the ecutive Secrztary also invited :he Govemmentr of
Secretmy-Genera! ts open negotiatiocs with a view Members to mnsmit to the Secretxiat for filing
to ih9 re-consideration, in the light borh of the and publication treaties and intemarionzl agree-
General Ccnvention adcpted by dle U~ited Sa-
tionr and c.4 rhe considerations zbove, of the pro- ments not incljded in the treaty series of the
visions under which the specialized. agencies at Lewe of Xations and entered into in recent years
present enjoy privi!eges and imrnu."'~~s. before the date of the entiy into force of thChar-
ter.
Th:rq-first plenary meciing, 19 February 1946. It is desirable, as a matter of practical con-
venience, that iimgements should bemade for
E. the pubiication of my treaties or international
RESOLCTION RELATING TO TEE INSURANCE agreements which non-merhber States rcay volun-
AGAINST THEU) PARTY RISKS OF MOTOR-CARS OF tarily transmit and wkich have not been included
THE ORGASIZATIO NKD OF YESfBERS OF THE in the treaty seriesof the League of Nations. These
STAFF. arrangements should not, however, extend to treat-
ies or international agreements transmitted by any
It has been found that a frequent source of diffi-
culty is road accidents in which motor can, owned non-member State such as Spain, the Government
or driven by persons pcssessing immunity from of which has been founded with the support of the
legal process,are involved. Axispowers and does not, in vikw of its origin, its
It is.the intention of the United Nations to Dre- nature, its-record and itslose-associationwith the
vet-.;L?C CXCU~TC~CC G; any no. . I..,czz.::r;s!? .--'.::>:Gb:L;:....>L.c2::Z:..:.2:.-...2::2;.!2.-...,
..;:L::::.;:;-LA::z::::c;:::.zr-2 iz:;::!<; T::r&.2: ; :::-.::::.::.:::-:-.:-:.-2 - .. :-.::.::: :
to itunder Articles 104 and 105 of theCharter and rhe ~ovisions oi&e Cnarcer. LTI E T IES
DEPOSITEDWITH THE
' SEC -GE
Statusas 31 December1997
UNITED NATIONS
NewY1998 . CONVENI?ONON TEE PRIVILEGESAND OF TBE UhlTElNATIONS
Ahpled by theGeneralAssemblyofthe UnitedNation os13 February1946~
14December 1946N. o.4.
United NationTreatySeries.v.I.p.15.andvo1.90.p.32'7(corrigendumtvol.1).
Parties: 1.8
Accession.
successbn(4 Participant '
N&nianis......................... 2 J~P 19~7 Ghanan........................... 5 Aug 1958
~~~~j~ ......................... 31 Oct 1963 Greece .......................... 29 Dec 1947
hgola .......................... 9 Aug 1990 Guatemala ....................... 7 Jul 1947
I\ntlgaaandBarbuda............... 25 Oct 1988d Guinea .......................... 10 Jan 1968
Australia.........................12 Mar 1949 Haiti............................ 26 Aug 1947
Austria...........................10 May 1957 Honduras ........................ 16 May 1947
heCrbaijan....................... 13 Aug 1992 Hungary ......................... 30 Jul 1956
Bahamas.......................... 17 Mar 1977 d Icela............................ 10 Mar 1948
Bangladesh....................... 13 Jan 1978 d Indonesia.........................18 Mar 1972
Barbados .........................10 Jan 1972 d Iran(Islamic Republicof)......... 8 May 1947
Belarus......................... 22 Oct 1953 Iraq............................. 15 Sep 1949
Bollvia......................... 23 Dec 1949 Israel........................... 21 Sey 11949
BomiaandHerzegovina ............ 1 Sep 1993 d Italy............................ 3 FE E958
Brazil.......................... 15 Dec 1949 Jamaica ......................... 9 Sep 1963
Bul aria......................... 30 Sep 1960 Japan ........................... 18 Apr 1963
Burundi......................... 17 drr 11971 Kenyan........................... 1 Jul 1965
Cambodia ....................... 6 Nov 1963 Kuwait .......................... 13 Dec 1963
Cameroon........................ 20 Oct 1961 d LaoPeople'sDemocraticRepublic.... 24 Nov 1956
............ Latvia........................... 21 Nov 1997
CChile............................15 Oct 1948 d Lesotho.......................... 26 Nov 1969 111.1:I'rivilcges and inirnunilicsofthe I!ni\cc:S1;1.~?i
Accessionl
Participant succession(d) Participant
Paraguay......................... 2 Oct 1953 Sweden .......................... 28 Arlg 19.17
Peru ............................ 24 Jul 1963 SyrianArabRepublic .............. 29 Scp '953
Philip ines....................... 28 Oct 1947 Thailand ......................... 30 Mar 1956
~olancf........................... 8 Jan 1948 The formerYugoslav
RepublicofMoldova................. 12 Apr 191995 Togoep............................. 27 Feb 1962 r;
Romania ......................... 5 Jul 1956 Tr~nidadandTobago ............... 19 Oct 1965
RussianFederation................. 22 Sep 1953 Tunisia .......................... 7 May 1957
Rwanda ......................... 15 Apr 1964 Turkey .......................... 22 Aug 1950
SaintLucia ....................... 27 Aug 1986d Ukraine .......................... 20 Nov 1953
~e~c%eller........................ 26 Aug 1980d United RepublicofTanzania.......... 29 Oct 11962
SierraLeone ...................... 13 Mar 1962d UnitedStatesof America ............ 29 Apr 1970
Singa re ........................ 18 Mar 1966d Uruguay ......................... 16 Feb 1984
~lovaga~ ........................ 28 May 1993d VietNam ........................ 6 Apr 1988
Slovenia......................... 6 Jul 1992d Yemen7 .......................... 23 Jul 1963
Spaini........................... 31 Jul 1974 Zambiaav.......................... 36 Jun 1975.d
Sudan ........................... 21 Mar 1977 Zimbabwe ....................... 13 May 1991 LTI E T IES
DEPOSITEDWITHTHE
(i
SEC -GE
Statusas at31 December1997
NeYork,1998NS . ... . . .-. .-- ....-.- .--., . . . .
DeclarationsandReservations
(Unlessotherwiseindicated,thedeclaratiomand resen.alions werenrade
uponaccessionorsuccession.)
ALBANIA^ as hitherto,adhereto theposition that,forthesubmissioilof a
particulardis ute forsettlementbythe InternationalCourt,the .
~h~ people~s~~~~b~~~ of Albaniadoesnot consider itself
bound bytheprovisionsofsection30,whichprovidethatanydif- consent of a8 the parties to the dispute is required in every
ferencearisingoutoftheinterpretationorapplicationofthepres- individualcase. This reservationis equallyapplicableto the
entconvention shallbebrou htbeforetheJnternationalCourtof opinionofthe JnternationalCourtshallbeacceptedasdecisive.
~ ~ ~ ~ iw~~s,e opinion shafl be accepted asdecisive by the
parties;with respectto the competenceoftheCourtin disputes BU~GARIA~~
relatingtotheinterpretationorapplicationftheConvention,the
People'sRepublicofAlbaniawillcontinuetomaintain,asithas CANADA
heretofore,that ineveryindividualcasetheagreementofallthe ruervation thatexenlFtionfrom imposed
artiestothe disputeisrequiredinorderthatthedisputemaybe byany lawinCanadaOnsalariesandemolumentsshallnotextend
faidbeforethe InternationalCourt ofJusticefor a ruling. toaCanadiancitizenresidingorordinarilyresidentinCanada."
ALGERL4' CrnA8
The Democratic and Popnlar Republicof Algeria doesnot
consideritselfbound bysection300f thesaidConventionwhich The Government of the People'?Republic of China'has
provides for the compulsor jurisdiction of the International reservationson section 30, articVIII,ofthe ConL,eution.
Courtoflustice infhccaseoldifferencesarisingoutoftheinter- CZECEIREPUBLIC %8
pretationorapplicaiiotiof theconvention. Itdeciarestliat,forthe
submissionof a particular disputeto theInternationalCourtof HUNGARY8 o
Justiceforsettlement, theconsentofallpartiestothe disputeis
necessary in each case. This reservationalso applies to the INDONESIA ,
provisionofthesamesectionthattheadvisoryopinion ivenby u~~~i~.~ 1(b) 1:~h~capacity c?theunited Natiois
the Internationalcourt ofJustice shallbeacceptedas&iJivf?.
acquireanddisposeofimmova~lc be
BAHRAIN withdueregardto nationallaws andregulations.
"ArticleVIII,section30: Withregard tocompetenceofthe'
Declaration: InternationalCourtof Justicein disputes concerningtheinter-
"Theaccessionbythestate ofBahraintothesaidconvention retationor application ofthe Convention,the ~ovenunent,of
shallinnoway constitute recognitionofIsraelorbe 1 causefor kdonesia reservestherighttomaintain thatineveryindividual
the establishmentof any relations ofanykind therewith." casetheagreementofthepartiestothedisputeisrequiredbefore.
BELARUS~ theCourt for a ruling."
38 R..
L. 111.1: PrivilegeimmmdfiesoftheUnltedNations
submissionofaparticulardisputeforsettlementbthehterna-
talion: on: tionalCourt,theconsentofallthepartiestothedisputeisrequired
"The~ovemmentoftheRepublicofLithuaniahasmadethe ineveryindividualcase. ThisreservationisuaIIyapplicable
Kscrvationinrespectarticl1e(1) (b),thattheUnitedNations advisoryopinionoftheJnternationalCourtshallbe acceptedas
shallnotbeentitledtoacqulrelandintheterritoryoftheRepubldecisive.
,fLithuania,inviewof the landregulationslaiddownby the
arlic]c47oftheConstitutionofthe RepublicofLithuania." SLOVAKIA~,
MEXICO
i * THAILAND
(,) TheUnitedNationsanditsorgansshallnotbeentitled "OfficialsoftheUnitedNationsofThainationalityshallnot
toacquireimmovablepropertyinMexicanterritory,inviewof be immunefromnationalserviceobligetions".
- 1bcpropertyregulationslaiddownby thePoliticalConstitution 'I'URKEY'~
of UnitedMexican States.
(b) (Xficials and experts of the UnitedNations and its Withthe followingreservations:
)rganswhoareofMexicannationalityshallnjoy,intheexercise (a) Thedeferment,duringservicewith theUnitedNations,of
)riviIcgwhicharensantedthem bysection18, ara aphse(a),ose thesecondperiod ofmilitary serviceofTurkishnationals
section22, paragraphs&),(f$,.(!(4 arrangedinpaccordancewith the proceduresprovided in
andO) respectively;of the Convention on the Privileges Military Law No. 1111, account being takenof their
;t~Immunitiesof the UnitedNations,on the understanding positionasreserveofficersorprivatesoldi,rovidedthat
11tatthe inviolabilityestablishedin the aforesaids22,ion the completetheirpreviousmilitary serviceasrequired
paragraph(c),shall be granted only for officialpapers and undkrArticle6 of the above-mentionedLaw, asreserve
r documents. officers orprivate soldiers.
...
(e) Turkishnationalsentrustedby the UnitedNations with a
SEPALS missionin Turkey as officials of the Organizationare
subjecttothe taxespayablebytheir fellowcitizens.They
"Subjecttothereservationwithregardtosection(c)ofthe must make an annual declaration of their salaries in
Convcntion,that nitedNationsofficialsofNepalesenationality accordancewith the provisionsset forth in chapter,
pursuantto Nepaselaw;andiceobligationsapplicabtothem section2,of LawNo.5421concerning incometax.
"Subjectto thereservationwith regardtosection ofthe IJKmnmS
Co~~ventioth,atanydifferencearisingoutoftheinterpretation
orapplicationoftheConventiontowhichNepalisa arty,shall The UkrainianSovietSocialistRepublic doesnotconsider
bereferredto theInternationalCourtof Justice on y withthetselfboundby theprovisionof section0 of the Convention
specificagreementoHis Majesty's GovernmenotfNepal." whichenvisagetshecompulsoryjurisdictioftheInternational
indifferencesarisingoutoftheinterpretationanda licationof
REPUBLICOFKOREA theConventiont,heUkrainianSovietSocialistRepf licwill,as
- Reservation: hitherto, adhereto the position that,for the submissionof a
[TheGovenunentoftheRepublicofKoreadeclares]thatthe particulardisputeforsettlementtheInternationalCourt,the
;/_ )provisionof parapaph (c) of section 18of articleV shallnconsentof all the artiesto the dispute is required inevery
applywithrespectto Koreannationals. . individual case.&is reservationis equally applicabletothe
provision containedinthesamesection, wherebythe advisory
ROMANIA^ opinionoftheInternationalCourtshallacceptedasdecisive.
The RomanianPeople'sRepublicdoesnot consideritself
houndbythetermsofsection30ofthe~onventionwhichpr0~ide UNITED STATES OF AMERICA
forthe compulsoryjurisdiction of the InternationalCourtIn "(1) Paragraph (b) of section 18 regarding immunity
differencesarisingoutoftheinterpretationorapplicofthe fromtaxation and paragraph (c) of section 18 regarding
Convention;withrespecttothecompetenceoftheIntem?tional immunityfromnationalserviceobligationshallnot applywith
Courtinsuchdifferences,theRomanianPeople'sRepublrctakes resoect to United States nationals and aliensadmitted for
i~hatsoevetrotheCourtforaruling,theconsentofallthepartiesehanent residence.
- t '0 the dispute is required in eveindividualcase. This "(2) Nothiig in articlN, regarding the privileges and
reservatioisequallyapplicableto ge provisionscontainin irxununitisfrepresentativesofMembers,inarhcleVI ,egard-
1 i thesaidsectionwhichsti ulatethat the advisoryopinionofthinarticeVIv,egardingtheprivilegesandimmunitiesofexpertsor
e i internationalCourtist& acapted asdecisive. onmissionsfortheUnited Nations,shallbe construedtogrant
i any person whohas abused hisprivileges of residence by
RUSSIAN FEDERATION^^ activitiesithe United States outsidhis official capacity
I pe Soviet Union does not consideritself boundby the -----tionfromthe laws andregulations ofthe UnitedStates
.s : provisionof sectio30oftheConventionwhichenvisagesthe regardin thecontinuedresidenceof aliens,providedthat:
n c~mp~lsoryjurisdictionoftheInternationalCourt,and~nregard "(a) 50 proceedingsshallbeinstituted undersuchlawsor
tothec~m~etenceo f he~ntemationalCourtindifference~?r~sing regulations to require an such person to leave the
:s outpftheinterpretationandapplicationoftheConventlon,the UnitedStates except wit the pnor approval ofthe
SovletUnionwill,ashitherto,adheretothepositionthat, fotrhe SecretaryofStateoftheUnited States. Suchapproval 111.1: PrivilegesaimmmitiesortheUnitedNations
shall be given only after consultation with the dip1omaticmissionsaccredite o trrUunitefic;J
appropriate Member inthe caseof a representative of a States.
Member (or member of his family) or with the
Secretary-General in the caseof anyperson referred to VIETNAM~
in articles and VI;
"(b) A representative of the Member concerned or the 1. Disputes concernin the inte retation or applicatioof "'
Secretary-General, as the case may be,shall have the the Convention shall be referr%d to t e International Court of
right to appeainanysuch proceedirlgs on behalf ofthe Justice for settlement only with the consent of all parties
person against whom theyare instituted; concerned.
"(c) Persons whoare entitled to diplomatic privileges and 2. Theopinionof the h~llfernationl ourtofJusticerefened
immunities under the Convention shallnot be required toin articlVIII sction 30, shall be merely advisory and shall
not beconsidered decisive without the consent of all parties
toleave theUnited States otherwisethan in accordance
withthe customary procedureapplicable to members of concerned.
NOTES:
Resolution22 A (I). See Resolutionsadoptedby theGeneral "In viewof the foregoing,the declaration made bFederal
AssemblyduringrheFirstPartofitsFirstSession(.4/64),p.25. Republicof Germanywillhaveno validity."
France,the UnitedKingdomofGreat BritainandNorthen
Czechoslovakiahad accededto'the Conventionon 7September [email protected] UnitedStatesofAmerica(8June1982):
1955witha reservationtosection30oftheConvention.Thereservation "Ina communicationtotheGovernmentof theUnionofSoviet
was subsequently withdrawnby a notification receivedon 26April SocialistRepublics,which is an integralpart (anNexA) of the
1991. Forthe textof the reservation,seeUnited Nations,TreatySeries,QuadripartiteAgreementof3 September1971t,heGovernmentsoE
vol.214,p.348. Seealso8notebelowand 11inchapter1.2. France,theUnitedKingdomand the UnitedStates,confirmedthat,
providedmattersofsecurityandstatusarenot affectedandprovided
TheGermanDemocraticRepublichadacceded totheConvention that the extension isspecifiedin caseinternationalagreements
on 4 October1974,witha reservation. For thetextof the reservation, andarrangementsenteredinto by theFederalRepublicof Germany
see United Nations,Treaty Series,vol.950, p. 354. See also note8 maybeextendedtotheWesternSectorsofBerlininaccordance with
below andnote 14in chapter1.2. establishedpracedures. For itspart,the Governmentof theUnion
of Soviet SocialistRepublics,in a communicationto the Govern-
In a communicationaccompanyingthe instrumentofaccession, mentsoftheThreePowers,whichissimilarlyanintegralpart(annex
theGcvernmentof the FederalRepublicof Germany declared that the N B) of the Quadripartite Agreement of 3 September 1971,
said Convention shallalso apply to Berlin(West)with effect from theaErmed thatit wouldraiseno objectionto suchextension.
dateonwhichitentersinto forceforthe FederalRepublicof Germany. The established procedures referred to above, whichwere
In this regard, the Secretary-General received,on the dates endorsedinthe QuadripartiteAgreement,aredesignednterafiatt
indicated,the followingcommunications: affordthe authoritie ofthe Three Powers theopportuniensun
UnionofSovietSocialistRepublic(s9 November 1981): thatinternationalagreementsand arrangementsenteredintobythl
The declaration made by theGovernment of the Fedenl Federal Republic of Germany which are to be extended toth.
Republicof Germany whendepositingtheinstrumentofaccession, of securitvand statusarenotaffectededin such away thatmatte:
to the effectthatthesaid Conventionshall extendto Berlin (West),-.-~hei authorizingthe extensionof the above-mentionedCOI
is incompatiblewiththe QuadripartiteAgreementof ~eptember ventiontothe WesternSectorsofBerlin.theauthoritiesoftheThn
FederalRepublicof Germanythe right to extendto WestBerlinin- Powerstook such stepsaswerene=&t* ensurethattheapplic
ternationalagreementswhichaffectmattersof securityandstatus. tion of the Conventionto the WesternSectorsof Berlinremain1
The above-mentioned Convention belongs precisely to that subjectto Alliedrightsand responsibilitiesin thefield ofprivileg
categoryofagreement. and immunitiesof international organisations.cordingly,f
In particular,the 1946 Conventionregulatesthe grantingof validityof the Berlindeclarationmadeby the FederalRepublic
privilegesandimmunitiesto United NationsorgansandofCtcialisn Germanyin accordancewithestablishedprocerfuresis unaffed
theState!emtoryof countriespartiesto it,includingimmunityfrom and the application of the Conventionto the WesternSectors
legalproceedingsandimmunityfromarrestor detention.Thus,the Bedincontinuesin fullforceandeffect,subjectto Alliedrights.2
Conventionconcernssovereignrightsandobligationswhichcannot responsibilities.
be exercisedby a Statein a territory whichdoesnotcomeunder its With referencet,o the said communicationforthe Govemm
jurisdiction. of the Getman Democratic Republicwe wish to state that SU
In view of the foregoing, the Soviet Union considers the whichare not partyto theQuadripartiteAgreementarenotcorn!
declarationmadebythe FederalRepublicofGermanyonextending enttocommentauthoritativelyon itsprovisions.ThethreeCOVs
theapplicationof the Conventionon thePrivilegesandImmunities mentsdo notconsideritnecessary,nor dotheyintendtorespon
of the UnitedNationsto Berlin(West)to be illegalandto haveno any further communicationsfromStateswhich arenotpartytc
legal force. QuadripartiteAgreement. Wewishto pointoutthattheabsenc
GermanDemocratic Republi(c23December1981): apsponse to furthercommunicationsof a similarnatureshoulr
"Concerning theapplicationof the Convention onPrivileges be taketo implyany changeintheir positiononthismatter.
and Immunitiesofthe UnitedNationson13February1946 toBer!in Federal RepublicofGermany(16August1982):
(West)the GermanDemocraticRepublicstates inaccordancw e~th "By their noteo28 May 1982, ..theGovemmentsof Fr:
the QuadripartiteAgreement of 3 September 1971, that Berlin the UnitedKingdomand the UnitedStatesanswered theassel
(West)continuesnottobea constituentpartoftheFederalRepublic madein the communicationreferredto above.The Governrnf
ofGermanyand cannotbe governedby it. theFederalRepublicof Germany,on thebasisofthelegal
'The declarationmade bythe FederalRepublicof Germanyto set out inthe noteof theThree Powers, wishesto confirm
theeffectthatthesaidConventionshallbeextendedtoBedin(West) application.in Berlin(West) of the above-mentionedConvl
is contrarylo the QuadripartiteAgreementin which it isstipulatedextendedby it under establisliedprocedurescontinuesinhrll
thatintcrnationafagreementsaffectingmattersofsecurityandstatus andeThe GovernmentoftheFederalRepublicofGermanyfries.
of Berlin (West)cannot be extendedby the Federal Republicof pointout thatthe absenceof a responseto furthercommunlJ
Germanyto Berlin(West). 111.1:Privilegeandimmunitiw oflhc UnitedNntions
below becausein its view they werenot of the kind which intending
parties totheConventionhavetherightto make.
4 August 1954' ...... Belarus
4 August 1954' ...... Ukraine
4 August 1954. ...... Russian Federation
6 September 1956. ...... Roroaniaovakia**
4 September 1956' ...... Hungary
3 October 1957' ...... Albania
1967* ...... Algeria
1967' ...... Bulgaria
1967' ...... Mongolia
1967' ...... Nepal
21 September 1972 ...... Indonesia
29 November 1979 ...... GermanDemocratic
Republic***
8 November 1979 ...... China
30 January 1990 ...... VietNam
* Datethe objectiowas circulated.
**Seealsonote 2 above.
Gf By a notificationreceived bythe Secretary-Generalon 20 June
1957,theGovernment of Turkeywithdrewthe second,third andfousth
me Governmentof the United Kingdom of Great Britainand , reservationscontainedin itsinstrumentof accession. Forthetextofthe
IrelandnotifiedtheSecretary-General,on thedates indicated,reservations,seeUnited Nations,TreatySerieso,l.70, p.266. As articleVI does not provide for tax exemptionon any stipends paid to expertson
missionsfor the United Nations, there isno tax implicationfor them in theproposed reser-
vation.
8. Inadditiontothereservationstatedinthethirdarticleofthe Law, asexaminedabove,
Nationsunder sectionofthe Conventionto acquireimmovableproperty. It subjectsthatited
capacityto the conditions establishedin the national Constitution and to any restrictions
established inthe Lawthereinprovidedfor.ccordingto the Constitution,theacquisition
of real propertyby international organizationse authorized only in accordancewith
Oonditions and.restrictions established bylaw. The Secretariatof the United Nations has !
- no informationasto whethersuch a law has as yet beenadopted. I
9. It isunnecessaryto re-emphasizethe urgent desireof the United Nationsto seean !
earlyaccessionby your country to the Conventionon the Privilegesand Imn~unitiesofthe !
UnitedNations. TineGeneralAssenlblyitselfhas repeatedlystated in itsresolutionson the
subjectthat, if the UnitedNations is to achieveits purposesand performits functionseffec- !
tively,it is essentialthat the StatesMembersshould unanimouslyaccede tothe Convention I
at the earliest possible moment. The Secretary-General wouldonly wish that the instru- I
ment of accessionshouldnot be subject to a reservation conflictingwiththe Charter, so as !
to avoidthenecessityofplacingthe question beforethe GeneralAssembly. I
22 October1963
23. RIGK OTFTHEUNITED NATION TOVISITAND CONVERSEWITH STAFFMEMBERSIN
CUSTODY OR DETENTION I
Internalmemorandum I
1. In connexionwiththe recentarrest of a staff member,the questionhasarisenofthe I
extent of the right of the United Nations to visit and converse withstaff membersheld in
custodvor detentionuthe authorities of a State.
(I.c.JReports, 1949,p174),that in the event of an agentof the UnitedNationsintheper- i
(3 forma,ce ofhis duties sufferinginjury in circumstances involvingthe responsibilityof a i
State, the United Nationshasthe capacity to bring an international claimagainstthe res-
the reparation duein respectof the damage caused both to the United Nations andining
victimor to persons entitledthrough him. The United Nations thereforehas, beyondany
doubt, a right of diplomaticprotection of its staff,at least withinthe Iimitsofthe questions
put to the Court in the requestfor the advisoryopinion.
3. The right to visitand conversewith the person in respect of whom a State may
possibly have violatedits international obligationsisa necessaryconsequenceof a,right of
diplomaticprotection. The State or organizationhavingsuch a right of protection
Statesascertainthe factsabout personsto whom theyare in a positionto afford diplomatic
protection.Consequentlythe Convention providesin article
"1. With aviewto facilit-tingtheexerciseof consularfunctionstonationalsof the
sendingState:
...
191 7 "(c) consularofficcrsshallhavetherighttovisita nationalof thcscndingStatcwho isin prijoll,
,HE custodyordctcntion,to converse andcorrespondwith him andtoarrangcforhisIcg;~rlrprcscntation.
TI?<)~~1:lI~:\\I?.I.l!:cf'!;!lt \;>i;:I.,) i;.+:iijfti;bclltiils:.~; .\!l~i, i:i pii,~~ti~i~:~,,,
detcntionin their districtinpursuanceofajudgment.. ."
[iI 4. It is therefore clearthat the United Nations hasthc right to visitand converse \vith
one of its staff membersin custody or detention whcnever there is any possibility that the
United Nations or the staff member in the performance of his duties may have been injured
through the violation bya State of any of its obligationseither toward the United Nations or
toward the person concerned. During such visits and conversations the United Nations
representatives must havc the right to pursue any lineof discussion which wouldclarify the
questions both whether an injury has occurred, and whether it was incurred in connexion
with performance of the staff member'sduties. The mere fact that there is no obvious con-
nexion between the reason givenfor the detention by the State and the staff member's duties
is insufficientto nullifythe right of the UnitedNations to visit. If that wereso, the right of
protection of the United Nations would be made entirelydependent upon the reasons given
by the detaining State, and that would makethe right practicallyineffective.
5. Even if infact thereisno connexionbetweenthe staffmember's dutiesand the reason
for the detention, the United Nations should neverthelessbe allowed to visit a staff member
under detention, and to ascertain through all appropriate discussionsnot only whether there
has beenany legalinjurybut aiso whetherthe person is beingtreated with humanity aird with
full observance of an international standard of human rights. This is particularly true wvhen
-. the presence of the staffmember in what isto him a foreigncountry is due to hisemployment .
, by the United Sations. In such casesit is inappropriate to apply narrowly the test of con-
nexion with officialduty,sincethe person'sverypresenceinthecountry istheresult of, and a
necessary condition for, the performance of that duty, and hence, in a sense, is connected ' -
with it. This broader scopeof protection by the United Nations follows from the undesir-
ability-stressed by theInternational Court of Justice in its advisory opinion on Reparation
1i for injuries-that staffmembersshould haveto rely on protection by their ownStates. The
I;, Court said (I.C.J.Reports, 1949,pp. 183-184):
"In order that theagentof [theUnited Nations]mayperform hisduties satisfactorilyh , e must
feelthatthisprotectionisassuredtohimbythe Organization,and thathemaycountonit. Toensure
theindependenceoftheagent,andconsequently,the independen atctionof the Organization itselfi,t
isessentialthat inperforminghisdutiesheneednothaveto relyon anyotherprotectionthan thatof
the Organization(saveofcoursefor themoredirectandimmediateprotectionduefromthe State in
whoseterritoryhe maybe). In particular,heshouldnot haveto relyon theprotectionof hisown
State. If hehad to relyonthat State,hisindependencemighw t ellbecompromised,contrary to the
principle appliedby Article 100of the Charter. Andlastly,it is essentialthat-whether the agent
belongstoa powerfulor toaweakState;toonemore affected orless affectedbythecomplicationsof
I internationalJife;to oneinsympathyor norin sympathy withthe missionof theagent-he should
li knowthat in the performanceof his dutieshe is under the protectionof the Organizatign. This
ji assuranceisevenmore necessary whenthe agentisstateless."
I 6. It follows from the foregoing that, when a United Nations staff member is arrested
or detained by the authorities of a State, the Organization altyayshas a right to send repre-
sentatives'to visitand conversewith him with a viewto ascertaining whether or not an injury
I' has'occurredto the UnitedNations orto him through non-observance by the State concerned
of its international obligations,and whether or not such injury is connected with the'perfor-
mance of his duties. Furthermore, at least wvhenthe staff member is not a national of the
detaining State, therearereasons for recognizinga broader interest of the United Nations in
thematter, so that the staffmember willnot have to rely exclusivelyon the protection of his
own State.
10 July 1963 agrcntcr dcgrcofcozt:~c\t;iTTCTan\!b.rio:vlcdof i:i currcpr.::tizc<. tlicr.~nsz:ril.*
I IIIIJ that you could,inthisinstance too, bc guidedbyyour previousprecedents,iftlleyclearlyrnct
1..
1. the reforwarding problemht the time.
8. Beforeyou settle your final policy,we therefore suggest you'have an examination
1;..
I:. made of(1)thecorrespondenceor other understandingswith ITU in 1952concerningcarriage
1:: of specialized agencytraffic on the New York-Geneva lin(2)the rules on joint usof
;L: leased telegraphcircuits; and (3)1952understandings, if any, and otherwise the current
ITU interpretations,on reforwarding.
!I;' 2 December 1963
ii:
g;i Memoranciimto the Deputy Chef deCabinet
1. With referenceto your inquiry weshould like to confirmthat the Secretary-General
has, on a number of occasions, informed delegationsthat United Nations Secretariat per-
-- sonnel do not enjoyimmunityfromarrest orprosecutionfor allegedactswhichare not related
to their officialduties. Tlie immunity accorded to Secretariat officialsis expressed in sec-
tion18ofthe Conventionon thePrivilegesand Immunities of theUnited Natio2*providing
that officialsof the Unitedions-i.e. Secretariatstaff members-shall be "immune from
legal process in respectof words spoken or written and all acts performed by them in th..r .
official capacity". There is, of course, a clear distinction between Secretariat oRcials aod
officials ofMembergovernments.
2. Needlessto say,this positionhas beentaken on many occasionsandainumber of
countries in whichUnited Nations personnel work. For example,we are attaching a copy
ofa pressreleasedated24June 1949containinga statement by the Secretary-Generalon this
point raisedas a resultofaseinregard to whichthe Secretary-Generalalso consideredthat
he could notassqrtimmunity from arrest or interrogation where the alleged acts were not
connected with the staffmember'sofficialduties.
3. May we add that there should be no misunderstanding whatsoever by Secretariat
personnel regardingthis position. Itexpresslystated in the Convention on the Privileges
and Immunitiesand ithasbeenrepeated on variousoccasionsinspecificstatements madc by
or on behalf of the Secretary-General.
11 July 1963
22. PROPOSE ACCESSIONBY A MEMBES RTATE TO THE'CONVENTX OOXTyEPRJVILEGE ASD
IMMUKITI ES THE UNITED 'NATIONS ?~BJECT TO A RESERVATIONDENYING TO AXY
UNITED I\.'ATIOOFFICIAL OF THATSTATE' SATIONALITY ASY PRIVILEGE OR IXISIUNITY
UNDER THE CONVENTION-I~TERPRET AFTIARSICLES IV, V AND VI OF THE
CONVENTIOS
Aide-MPmoireto tltePermanentRepresentativeofa Member State ..
1. The firstarticle of the Law approving accessionby yourcountry to the Convention
on the Privilegesand Immunities of the United Nations approvesthe Convention subjectto
the reservationset out in the second and third articles of the Law.
Thc third articleofthe Law setsforth areservationto theeffect thatthe provisocontained
in articleV, section15, of the Conventionshall also apply in respect of articles V and VI.
=Wnitcd Sations, TreatySeries,volp.115.1963 UN JURIDICAL YElW3OOK - EXJ!RAcTs
thatyou could,in thisinstancetoo, beguidcdbyyour previous precediftheyclearlymet
the reforwardingproblem at the time.
8. Beforeyou settle your final policy,we thereforesuggestyou haveanexamination
made of (1)thecorrespondenceorotherunderstandingswithITUin1952concerningcarriage
of specializedagencytraffic on the NewYork-Geneva link; (2) the rules onjoint user of
leased telegraphcircuits; andthe 1952understandings,if any,and otherwisethecurrent
XTUinterpretations, on reforwarding.
2 December 1953
1. Withreferenceto your inquiryweshouldliketo confirmthat the Secretary-General
has, on a number of occasions,informeddelegationsthat United Nations Secretariat per-
sonnel donotenjoyimmunityfromarrestorprosecutionforallegedactswhicharenotrelared
to their officialduties.e immunity accordedto Secretariatofficialsis expressedin sec-
tion 18oftheConventionon thePrivilegesandImmunitiesoftheUnitedNations2"roviding
that officialsof the United Nations-i.e. Secretariatstaffmembers-shall be "immunefrom
legal process in respectof words spokenor written and all actsperformedby themir
official capacity". There is, of course,a clear distinctionbetweenSecretariatofficialsand
officials of Member governments.
2. Needlessto say,this position hasbeentaken on manyoccasionsand inanumberof
countries in whichUnited Nations personnelwork. For example,weare attachinga copy
of a press releasedatedune 1919containinga statementbythe Secretary-Geneln this
point raisedas,resultofa casein regard towhichthe Secretary-Generalalsoconsideredthat
he could not assert immunity from arrest or interrogationthe allegedactswerenot
connected withthe staffmember'soffici.uties.
3. May we add that there should beno misunderstandingwhatsoeverby Secretariat
personnel regarding this position. It is expresslystated in the Conventionon the Privileges
and Immunitiesand it has beenrepeatedonvariousoccasionsinspecificstatementsmade
or on behalfof the Secretary-General.
.I1July 1965
22. P~OPOSED ACCESSIONBY A MEMBES RTATE TO THECONVENTI O NTHS:PR~VILEG ASDS
I&~~IUXIT OIFTHE UNITED NATIONS* S*BJECT TO A RESERVATIONDENmG TO AhT
U>TEDNATION OSFFICIAL OTHA T TATE'NSATIONALITY ANY PRIVILEGE OR ILIMUSITY
USDER THE CON~ENTION-INTERPRETA OTIORTICLES IV, V AND VI OF THE
Cosvas~~ox
Aide-lbfemoireto tlrePermart epresetrtntiveofn Member.tat.
1. The firstarticle of the Lawapprovingaccessionby yourcountryto theConvention
The thirdarticleof theLawsetsforthareservationto theeffectthattheprovisocontained
in article IV, sect15,of the Conventionshall also apply in respectof articlVI.and
'4United Nations,TreatySerivol1,p.15.
188 Section 15of the Convention on the Privilegesand Immupitiesof the United Nations
reads:
"The provisionsfsections11,12and 13 are not'applicablesetweena representatand the
authoritiesoftheStateofwhichhe isa nationalorofwhichhe isorhasbeentherepresentative!'
krticle IV of the Convention,in whichnot only section15isfound but alsothethreesection.
cross-referencedtherein, relates only to representatives which MemberStates delegate to
represent them. Article V of the Convention, to whichthe proposed reservationseeks to
apply the provisocontained section 15,specifiestheprivilegesand immunitiesof officials
the Organizationand thelimitationsunder whichtheyare intendedto beenjoyed. ArticleV1
(2 does the same for experts on missionsfor the United Nations.
As section 15of the Convention expressly relatesonly to the provisionsof sections
12and 13which,beingcontained in article IV, have nolegalrelationshipto articVeor VI,
it willbe assumedthat the intent of the reservationin the third articleof the Lawis to state
that the privilegesand immunities specifiedin articlesVandre not applicableasbetween
an officialoran expert on missionfor the United Nations)of your country's nationalityand
the Government of your country.
2. In theopinionof the Secretary-General, acloserexaminationof thetruelegaloperd-
tion of this reservation,as so interpreted, will leavenodoubt that itisincompatiblewiththe
United Nations Charter. It maytherefore bethat you wouldwishtoconsiderthepossibility
of suggestingto your Government that the actual deposit of any instrumentof accession
intended to embody the foregoing reservation be delayedpending an urgent reconsidera-
tion of its legalconsequences. In this connexionit maybe borne in mind that,hould an
instrument containing this reservation be submitted to the Secretary-General,he would be
obliged to take action in twoseparatecapacities,not merelyas depositaryof theConvention
in question underits section32,but alsothe authority designatedbysection36for entering
into negotiations with any Member Government as to any adjustmentsto the terms of the
Conventionso far as that Member is concerned.
in view of this dual responsibility the following analysis of the proposedreservation is
offeredfor the consideration of your Government.
1 3. Numerousprivilegesand immunitiesspecifiedin article Varenot ordinarilyunder-
C, stood to have practical application as between an officialof the United Nations and his
Government of nationality. Such an officialwill haveno occasion, unlessin rare circum-
stances,to requireimmunity from immigrationrestrictionsin his owncountry, or privileges
in respect of exchange facilities,or repatriation facilitiesin time of international crisis; he
4. The situation is quite otherwisein the matter of his officialacts,ishere that
thereservationcannot be reconciledwith the Charter. Section18(a)inarticleVrequiresthat
officialsof the United Nations be "immune from legalprocess in respect of words spoken
or writtenandallactsperformed bythemin tlzcirofficialcapacity." (Underscoringsupplied.)
It follows that your country, in proposing the reservation quoted above, has (no doubt
unintentionally)reservedthe right to prosecute United Nations officialsof its nationalityfor
wordsspoken or written or for any acts performed by them in theirofficialcapacity, indeed
for actions whichare in effectthe acts of the Organization itself. It would equallybe the
consequence of the reservation that your country would be reserving'jurisdictionto its
national courts to entertain private lawsuitsagainst itscitizensfor acts performedby them as
oficials of the United Nations.--
5. Article 105ofthcCharterprovidesinitssecondparagraph that officialsof theOrgani-
1
zation shall "cnjoy such privilcgcsand immunitiesas arc necessary for thc indcpcndcntcxer-
! cisc of their functions in connesion with thc Organization." Likewise, by the secondpara-
~rnph of Articlc Inn tncli >!cr;?!.~r ot!;,'C'::i:+;.:a:ioi~':IIIL!L'I.~.!0uI.CS1)Cii tit< ~421~-
sivelyinternational character of the responsibilitiesof the Secretary-General and thc staff".
It needsno argument to demonstratethat thc reservationbya Member of the right,eveninthe
abstract, to exercisejurisdiction over theofficialacts of United Nations staff, either through
its courts or through other organs or authorities of the State, would be incompatiblewith
the independent exerciseand the exclusivelyinternational character of the responsibilities
of such officials of the Organization. This derogationfrom the clear terms of the Charter
would in no way be affectedby the common nationality of the international officialand the
prosecuting authority. The Secretary-Generalcannot believe that the legal effect ofthe
reservation in question, although indisputable whenexamined in this light, was consciously
intended.
6. The situation issimilarwithregard to article VI of the Convention. Expertsofyour
country's nationality wouldnot normally performtheir missions for the United Nations on
national territory. On the other hand, the inevitableconsequence of reserving article VI
would be to permit the exercise overnationals of your country, who have performed or are
performing officialUnited Nations missions, of jurisdiction in respect of words spoken or
written and acts done by them in the course of the performance of their mission. For
example,an officerwhomightbesecondedby your,Governmentfor serviceabroad asa United
Nations Military Observerwould technicallybe subjecton hisreturn to inculpation or sanc-
tion for some aspect of his activity on behalf of the Organization. This is particularly
evident from the fact that one of the provisionsreservedstates (in section 22(b) of the Con-
"This immunity fromlegalprocessshallcontinue tobeaccorded notwithstandingthatthepersons
concernedareno longeremployedonmissionsfortheUnitedNations."
pap&s and documents of the United Nations in hispossession could likewisebe deprivedof
their inviolability, while the confidentialcharacter of his communications with the United
Nations could equally be overridden. In such circumstances the Organization itselfcould
not be said to enjoy in theterritory of the Member in question the privilegesand immunities
necessary for the fulfillmentof its purposes, as required by Article 105, paragraph 1 of the
7. A comment mayalso bein orderwithrespectto the effect on a Member Government
of its reserving the application of section 18(b). That clause provides that officialsof the
United Nations shall "be exemptfrom taxation on the salaries and emolun~entspaid to them
by the United Nations". Officialsof the Organization,having been intended bythe General
Assemblyand the Conventionto be exemptfrom national taxation on their officialsalaries,
are already subject to a staff assessmentby the United Nations equivalent to nationa1,taxa-
tion. By resolution 973 (X), therefore, the General Assembly authorized the refund and
reimbursement to the staff by the Secretary-Generalof the amount of any national income
taxes to which they might be subjectedon the samesalary. At the same time, the General
Assembly created by that resolution a Tax Equalization Fund and established thereby a
procedure for charging against eech Member State the total of any amounts whichthe Or-
ganization might thus be obliged to refund to the staff. It should accordingly be under-
stood that the consequenceof the reservation in question in so far as it reserves the right,
to tas nationals of your country on their United Nations salaries, willbe to place upon the
Organization the administrativeburden of reimbursingthe income taxes on official'salaries
while neverthelessincreasingyour Governrrient'sannual contributions to the expensesof the
Organization by the full amounts so reimbursed.
!
i
i ...
. .
As articleVI does not provide for tax exemptionon any stipendspaid to experts on
missionsfor the United Nations, there is no taximplicationforthemin the proposed reser-
vation.
8. Inadditiontothereservationstatedinthethird articleoftheLaw,asexaminedabove,
the secondarticle of the Law contains a reservation concerningthe capacityof the United
Nationsunder section 1of the Conventionto acquireimmovableproperty. It subjectsthat
capacityto the conditions,establishedin the national Constitutionand to any restrictions
establishedin theLawthereinprovided for. Accordingto the Constitution, theacquisition
? of real property by international organizationsmay be authorizedonlyin,accordancewith
(.. ) conditionsirndrestrictions establishedby law. TheSecretariatof the UnitedNations has
no information-asto whethersuch a lawhas asyet beenadopted.
9. It isunnecessaryto re-emphasizethe urgent desireof theUnitedNationsto seean
early accessionbyyour country to the Conventionon the Privilegesand Immunitiesof the
United Nations. The GeneralAssemblyitselfhasrepeatedlystatedin itsresolutionson the
subjectthat,ifthe United Nations is to achieveitspurposesandperformits functionseffec-
tively,it is essentialthat the StatesMembersshouldunanimously accede to the Convention
at the earliest possible moment. The Secretary-Generalwouldonlywishthat the instru-
ment of accessionshouldnot be subject to a reservationconflicting withtheCharter, so as
to avoidthe necessityof placingthe question before theGeneralAssembly.
22October 1963
23. RIGHI' OF THE UNI~D NATION TS VISE AND CONVERSEWjIH STAFF .MEMBER ISN
CUSTODY OR DETENTION
Internalmemorandum
1. In connexionwith the recentarrest ofa staff member,the question hasarisen ofthe
extent of the right ofhe United Nations to'visitand converse with stafm f embersheld in
custodybr detentionby the authorities of a State.
2. It is establishedby the advisory opinion of the InternationalCourt of Justice of
11 April 1949,on Reparation for injuries sufferedin the serviceof the United Nations
( ' formance of his duties sufferinginjury in circumstancesinvolvingthe responsibilityof a
State, the United Nations has the capacity to bringan internationalclaimagainstthe res-
ponsibleState(whetherit is or not a Memberofthe Organhtion), witha viewto obtaining
the reparation due in respect of the damage causedboth to the UnitedNationsand to the
victimor,to personsentitled through him. The United Nationsthereforehas, beyond any
doubt, a right of diplomaticprotection of itsstaff,at leastwithinthe limitsofthe questions
put to the Court in the request for the advisoryopinion.
3. The right to visit and converse with the person in respectof whoma State may
possiblyhave violatedits international obligationsisa necessaryconsequenceof a right of
diplomatic protection. The State or organizationhavingsucha rightof protectioncannot
exerciseit unlessthere is an adequate opportunityto findout the factsofa case,and where
the person concerneiiis in custodyor detention,the only suchopportunityisthroughaccess
to that person. This is recognized,for example, in the Vienna Conventionon Consular -
Relations of24April 1963(AICONF.25/12). Consulsaretheusualchannelthroughwhich
Statesascertainthe facts about personsto whomtheyare in a positionto afforddiplomatic .
protection. Consequentlythe Conventionprovidesin article36:
"I. with a viewto facilitatinthe exercise ofconsular functionrselating tonationalsof the
send...State:
191
.. 4. We must therefore reiterate the principles set forth in the Secretary-General'saide-
3 January 1961. We are certain that you willappreciatethat anyother course
ir the international status of the military observerswhich is essentialfor the
exerciseof their functions in connexion with the Organization.
\Vewould appreciate your bringing these comnlents to the attention of your Govern-
21 October 1964
MMUNlTYFROMLEGALPROCESS OF UNITED NATIOX SFFICIALS ACTINGIN THEIROFFlClAL
.. CAPACITY-SECTIO 18 S(n), 20 AND 29 (6) OF THE COXVE>TIO OX THE PRIVILEGES
AND I~~MUNIT OFIT HE UNITED NATION 6S
I~rternalmemorandrrnr .
th referenceto the inquiry concerning section 18 ($of the Conventionof the Priv-
d Tmmunities ofthe United Nations, we should Iilceto make the followingcornn-
ikrnunity from legalprocess in respect to offic acatlprovidedunder sectionIS
onventionappliesvis-&-visthe home country of an officialas wellas vis-&-\!itshe
inwhich he is serving. Therefore, a question prior to the deterinination of what
may try the case is whether the Secretary-General shouldwaivethe immunity
in a particular case.
tion 20 of the Convention provides that privilegesand inlnlunitiesare granted
in the interestsof the United Nations and not for the personalbenefit ofthe indi-
thenlselves. The Secretary-General has the right and duty to waivethe inmlunity
case where, in his opinion, the inununity wouldimpedethe course of
and can be waivedwithout prejudice to the interests.of the United Nations. If the
in a particular case, decidesthat irnnn~unirw youldimpedethe coursc of
waivedwithout prejudice to tile interests of the Organization,then he
...?.-.... willwaiveunder this section.
--.:.'.:..
--..... . 3. Nornlally, in the case of automobile accidents, where a satisfactorysettlement is
not negotiated, awaiverwillbe made with respectto the civil claimand a civilaction can be
----...' %:.
...". tried inthe country wherethe accident occurred or where the staffmembermay be located.
. ASan alternative, arrangsl11entscould be made for arbitration under section 29 (b). Such
.-. .. arrangementsunder section29 (6) are usually made on an ad Aocbasispermittingthe choice
of the most appropriate method for each case. In the past, there have beenfewcriminal
.- cases inwhich.tl~equestion of waiver arose and the Secretary-General's decision under sec-
tion 20 has been take11in each case in the lipht of the particular circun~stnnces.
4. Generally speaking,the same provisions apply to the specialized agencies,but
are not in a positionto furnish detailed information wit11respect totheir practice.
3 November I964
. ,
b7United Nations, Treury Series,vol. 1, p. 15.
'163 . . .. ....,.
, ................--..'. I * - ,. . . .. .-...,...?.
to representatives to United Nations organs and conferences. It shouldof coursc be noted
that some provisions such as those relating to ngrhmetrt, nationality or reciprocity have
nn rclcvnncy in tli- s:tl:.:!i,nT:rc;*rcs:;;:;::;.:L) ih~ Litiicd ;,.t~i"~,~.
3.
I4 I should now like to turn to the Convention on the Privilegesand Immun
noted that this Convention is of a very special character-in fact, it isa Convention sui
generis. Nearly all multilateral conventions refer to the ratifying and acceding States as
parties and the rights and obligations created are between the parties.
4. The Convention on the Privileges and Immunities of the United Nations is
different. Throughout, in referring to rights and obligations, it refers to Members of the
United Nations. It does not refer to parties to the Convention at any point. The word
I . "parties", in fact, is used onlythree times in the Convention and appears in lowercase-
I twice in section 30 where itmeans parties to differencesor disputes,and oncein section35
i where the reference is to a party to a revised convention. The word "Member", on the
1: other hand, appears with a capital "M" and is used in the three paragraphs of the preamble -.
I and in seventeen sections of the Convention, includins section 11. which refers to
i- 5. Section 35 makes clear the character of the Members' obligations,which run -.
from each Member to the Organization. This section reads:
i!. .- .
"Thisconventionshalc lontinueinforceasbetweentheUnitedNationsandeveryMember
11- (I repeat,'betweenthe UnitedNationsandeveryMember')whichhasdepositedaninstrument .f
of accessionfor so long as that Member remainsa Memberof the United Nations,o 'r until ::
I / a revised general conventioh nas been approvedby the GeneralAssemblyand that Member
llf has becomea party to this revised convention."
elementary that the rights of representatives should properly be protected by the Organi-
zation and not left entirely to bilateral action of the States immediately involved. The $
Secretary-General would therefore continue to feel obligated in the future, as he has done T'
in the past, to assert the rightsand interests of the Organization on behalf of representatives
of Members as the occasion may arise. I would not understand from the discussionin 4
this Committee that the Members of the Organization would wish him to act*t.!any way
4
diEerent from that which Ihavejust indicated. Likewise, sincethe Organization itselfhas -C
an interest in protecting the rights of representatives, a difference with respect to such
rights may arise between the United Nations and a Member and consequently be.the. $
subject of a request for an advisory opinion under section 30 of the Convention. It is thus P
clear that the United Nations may be one of the "parties", as that term is used in section30. i:
. . 0
7. There is another aspect relating to the fiature of the Convention which.1should u
like to develop on behalf of the Secretary-General. It may be observed that the preamble I
of the Convention refers to Articles 104 and 105 of the Charter of the United Nations. 51-
The preamble notes that Article 105 provides:
United Nations, Treary Series, vol. 1, p. 15.
312 8. It will be recalledthat the Covenant of the League of Nations itselfprovided that
"diplomatic" privilegesand immunities. Some privileges and immunities are obviously
i? necersan for the fulfilment of the purposes of the Organization and the exercise of the
functions of representatives and officials and may therefore be derived without difficulty
directly fromthe first two paragraphs of Article 105. The,third paragraph of that Article
envisagedthat further content could be given to the term "necessary" by the General
Assembly. This paragraph provided that the Assembly might make re6ommendations
9. There are three points which I believe should be made. In the first place,
Article 105 itself accords such privileges and immunitie'sas are necessary. This .is an
- 10. In the second place, the Convention defines certain privileges and immunities
.-. which the General Assemblyconsidered to be necessary'in all Member States. In effect.
it provided the minimum privileges and immunities which the Organization required,
whereverit might beor whereverrepresentativesof Members or officialsof the Organization
might find themselves. I have s+id "minimum" sinceit has been recognizedthat in States
where the United Nations has major officesor operations, such as its Headquarters in
New York, and its peace-keepingand developmentMissions in various areas of the world,
additional privilegesand immunities have been necessaryfor the fulfilmentof its purposes
and the exercise of the functions of representatives and officials. Thus, the Agreement
betweenthe United Nations and the United States of America regarding the Headquarters
of the United Nationss provides that 'the provisions of' that Agreement and of the
[bid., \.@11 (1947). No. 147.
. . Thc Asscn~blyin thc past has not only callctl on all blcnibcr Sti1tt.sto acccdc to thc
Convcntion. but also, in resolution 93 (1) of II I>cccnibcr 1916. rc.coninit.ntlcdth~:
. -
11ieConvc~~t~oI nnthcir rclotio~is\\ith thc Unitcd Nations, its ollicials. tllc rcprt.scnt;tti;c~
of its Mambors and esperts on missions for thc Organizi~tion.
II. In the third placc, it should be notcd that thcrc are now ninety-sixStates which
have acceded to the Convention. Moreover, in most of the ren~aining Member States
as well as in many nonmember States, the provisions of the Convention have beenapplied
by specinl agreement. While it may be true that in 1946nlany of the provisions of the
Convention hi~dthe character of legc feretrril nothe nearly twenty-two yearssince the
adoption of the Convention by the Assen~blyits provisions have become the standard and
norm for governingrelations betweenStates and the United Nations throughout the world.
I doubt that I an1 being over-bold in suggesting that the standards and principles of the
Convention have been so widelyaccepted that they have now become a part ofthe general
inte'rnational law governing the relations of States and the United Nations.
I. 12. Undera narrower view than that which I have just outlined, every representative
! in this room, other than those who are at the same time nlembers of a Permanent Mission.
!- might be subiect to arrest and detention, sincc the host country hi~~ not yet acceded to the
Permanent Missions. 'YetI doubt whether many of the members of this Comn~ittee,or
an international tribunal to which the issue might be subn~itted, would agree that.
representatives to the General Assembly lacked this fundamental protection under the
Charter and under general international law.
13. I, therefore, in summary submit: first, that the obligations of Member States
under'the Convention, including those affecting representatives of other Members, are
obligations to the Organization, and the Secretary-~eneral has an interest and a role in
their protection and observance: secondly, that the privileges and immunities which \ve
have been discussingare obligatory for all Member Stateswhether or not they have acceded
to the Convention. Article105creates a direct obligation on all Members to accord the
privileges and immunities necessary for the fulfilment of the purposes of the Organization
and the esercise of the functions of representatives and officials. Certain of the pric;ileges
and imn~unitieswhich the Generol Assembly has deemed to be necessary in all Member
States are defined in the Convention, whose standards and principles have been so \vide11
accepted as to become a part of the general international law governing the relations '
between States and the United Nations.
I. 13. 1hasten to add that this should not be a reason for any Stnte's delaying further
1: its accession to the Convention, sinit. the Convention, with such implenienting.\egislation
! as mav be necessarv. orovides the best method for the fulfilment and irnolementation on 14. SCOPE AND EFFECT OFTtfE PRIVILE ANDEISlSLUSlTll~SREQUIREDUN1)I;R7111.1946
CVSV~~.SLU ON TIE PI<IVII.EC IMS) ISI~IUNIT OFETIIE CJsr-r~ n ATIOKSFOR
Aln~ro~r,,rrlrotrtrhc Genernl C'o~rttol/C~I RWA
I. The purpose of this memorandum is to explain the privileges and immunitiesto
which locally-recruited UnitedNations staffare entitledwithin the territory of a State party
to the 1946 Convention.. There are three points of particular importance which require
enlphasis before entering into the detailed discussionof particular privileges.
3. Firstly, and most important, none of the privilegesor inlmtinitiesare intendedfor
thc personal benefit or advantage of the individual concerned. As Section 20 of the Con-
.-. ..-, ,.., vention states:
not for the personalbenefit ofthe individualsthemselves.The Secretary-Generhavehall
the rightand the dutyto waivetheimmunitofanyofficiainanycasewhere,'inhisopinion,
the immunitywouldimpedethe courseofjusticeand canbe waivedwithoutprejudice tothe
interestsof the UnitedNations. In the caseof the Secretary-Generalt,he SecurityCouncil
shallhave the rightto waiveImmunity."
Tlie basic purpose of these privilegesand immunities isto ensure the independenceof the
individualillnN thnr concert hisoficinlhcu, for, as Article 100 of the United Nations
Charter recognizes,it is imperativethat, in theperformanceof officialduties,a staff member
be not subject to instructions or control by any government or authority external to the
United Nations. Thus, Article100embodies not only obligations on the staff, but also
obligations on every MemberState. It will also be noted that Article 105, paragra2,
is mandatory in providing that
"...officialsof the Organizationshallsimilarlyenjoysuch privilegesand immunitiesas are
necessaryfor the independent exeroeftheir functionconnectionwiththeOrganization".
3. Secondly, locally-recruited personnelof the Apncy no less than internationally-
recruited personnel am staffwithin.the mcaningof Article 101,paragrI,of the Charter.
In accordance with General Assembly resolution76(Iof 7 December 1946, privilegesand
immrtnitics ttnder Section 18of the Convention applyto all officialsof the United Nations
except those''wh0are both locally-recruitedand assignedto hourly rates. This is a decision
of the General Assemblyand as such neither the Secretary-Generalnor the Commissioner-
General have authority to agree to any modificationof this decision. * :
4. ThirdIy, locally-recruited staffdo not enjoy the same extent of privileim-and
munitiw as do expatriate stag, recruited abroad. Severalof the privilegesand immunities.
mentioned in Section18, ArticlV, of the Conventionon the Privilegesand Immunitiesof
the United Nations are only relevant in the case of staff workingide their country of
normal residence. Privilegeswhich fallinto this category includethe repatriation facilities
mentioned in paragraph (f) of Section 18,and the right to import furniture and freets
of ditty when firsttakingup apost in thecountry in question, whichisconferredbyparagraph
(g) of Section 18: The exchange facilitiesmentionedin paragrap(c)willusuallyfall into
the same category, because,if an Agencyofficialis normally resident and working ina host
Stateprior to employnlentby UNRWA; it isnot likelythat circumstanceswillarise in which
the transfer of funds, into or out of the host State will be regarded as an act related to his
ernployment by UNRWA. The immunity from immigration,restrictions and alien regis- tration, which is mentioned in paragraph (d) of Section 18,is also concerned primarily
withnon-residents.
5. Tl~us,the categories of privileges and, immunities directly relevant to locally-
recruitedstaffare the following:
(a) IiliniritiJkotllegalprocess ill respect of wordsspoketzor lvritterlaallacts
Paragraph (a) of Section 18,.whichconfers immunityfrom legalprocessin respect of
')words spokenor writtenand all acts performed byofficialsin their officialcapacity,is the
most important provision of that section. The United Nations has never agreed to any
derogation from this provision. The extremeimportanceof this provisionliesin the fact,
that, whenactingin theirofficialcapacity,the acts ofthe officialare in effectthe acts of the
United Nations itself,and the nationality of the officialis totally irrelevant. Without this
immunity, officials wouldbe liable to be sued or.prosecutedfor acts done in their official
capacity; thcj'would be liableto be forced to appearas witnessesin court to giveevidence .
on officialmatters; theywould be liableto arrest and interrogationby State authoritieson
mattersarisingout of theirofficial duties. Removalofsuch protectionwould placeofficials
in a situation where they could be subjected to external pressuresand influence directly
contrary to Article 100of tho Charter. It will alsobe apparent that subjectionof staff to
legalprocesscould lead to the disclosureof matterswhich,withinany civilservice,are pro-
perly regardedas internal matters of a confidential nature. It could also leadto the cir-
cumventionof Section 4 of the Convention (on the inviolabilityof archivesand documents)
in that thecontents ofsuchdocumentsmight bedivulgedunder oralexaminationof Agency
staff. It must also beapparent that, preciselybecause iis the basic principleofArticle100
whichisat stakehere, the notion of "legal process"has to be givena broad interpretation.
Thus,where a MemberStateusesa systemofadministrativebodiesor tribunals,rather than
courtsstricto setisufor conducting enquiries or hearings,the immunityfrom jurisdiction
applieswithequal force. This has.beenaccepted bothby MemberStatesand evenby non-
memberStateswith whomthe United Nations has madeagreementson privilegesand im-
nlunitiesofthe Organization. It must be remembered, however,that for allstaffother than
- he Commissioner-Generalhimself'this immunityisnot the generalimmunity conferredon
diplomaticagenlsbut isstrictly limitedto the officialactsof the staffmember:it isa strictly
"functional" immunity.
Admittedly,there can be borderline casesin whch it may bedisputedwhetherthe act
is "oficial" or "non-official" and, as the employer,the Agencymust reservethe right to
make this decision. But a host Government willfindreassurancein the fact that any acts
bya staffmember whichare truly part of politicalactivitiesare bydefinition"non-official".
The abstention from politicalactivities is not only a characteristicof United Nations em-
ploymentbut is reinforcedby specificobligationsundertaken by the staff member. Thus,
the immunityfor officialactscannot be used bystaffasa protectionbehindwhichtheymay . ... .. .
shelter.\vhilst engaging in political activities directed against the Government. Indeed,
such action would lead to disciplinary action by the Agency including,where necessary,
dismissalfrom the Agency'semployment. A host Governmenthas the further reassurance
that, evenwhere an act is official,the immunity of the oficial not only can but must be
I waived by the Secretary-General (or the Commissioner-General,acting on his behalf) .__ _.. .. .. --
''wherethe in~munitywould impede the course ofjustice and can be waivedwithout pre-
judice to thointerestsof the United Nations" (Section20). The Governmentcan always,
therefore,request a \vnivcrin a particular casewheretheseconditionswouldbemet. Even
where the Agencyis not prepared to waive the immunityof a staff memher,this doesnpt
1:lc:ithat no possibilitiesesist for the Agency to assist the adminisrrative or judical authorities of the host Govcrnrlicnt. Thc Agency has,on frequent occasions,givc11 infc7rr:l-
ntion to thcsc ntrrhoritiosand has transmittcrl to local coii~.(~inl'osmationfrom Apcrlcy
filesrclcvant to procccdinpshc;fnrcthosccnurtz. Morcnvcr. 1!-.., y:.:.c!.....$:..,..,... ..
c;~gayu.l illjuir~tirivcstigationswith illc local ut~tlioriticsover mattcis such as thc thcf~ of
Agency propcrty. In some cases !heAgoncyhas firstdismissedthc stall'~nenlbcrnnrl then
nctunlly requested the local authoritics to prosecute and been join'zd, a! its rcqucst, as i:
"partie civile" in the criminal action. These are all practical measureswhich tl~cAgcnc~
, .---- --..- can take, and has taken, with a viewto fillfillingits obligation under Section21of the Con-
vention to "cooperate at all timeswith the appropriate authorities of Membersto facilitate
the proper administration ofjustice, securethe observance of police regulationsetc,..".
(b) Exo~ptionfioni tczxationon tlie salaries ntld etnolrnlzctt~psrticl
by .the UniterlNations (Section 18(b))
-...---
United Nations operations within the territory of a host State that it is not the purpose,
direct or indirect, of theseoperations toconstitute aprofit to thenational Treasury. Indeed,
it must be obvious that the Agency couldnot expect contributing States to increase their
contributions for the purpose of offsettingthe increasedcosts whichthe Agencywouldincur
ifsalaries had to be paid subject to tax: the increasedcosts would haveto be met by cutting
servicesto the refugees,and it can scarcelybe imaginedthat the host States wouldwishthis
to occur.
(c) linnzlinityfionl 1iut;o~ia service obligatio~b(Scrrioli 18('cj j
This immunity is based upon the need to ensrrrcthat the efficientconduct of United
Nations operations is not jeopardized by the withdrawal from United Nations servicc'of
officials of an international organization for the purpose of serving a period of national
military service. The immunity also reflectsan assun~ption,which ~ember'statgi may be
espected to share,that servicein the UnitedNations isas contructive a role for the individual
to play in the preservationof international peaceand securityas would beservicein national
armed forces. Obviously,the possiblejeopardy to the Agency's operations is greatest in
the case of senior, locally-recruited w.oofcfiuldibelsreplaced onlywith the greatest
difficulty:heads of departments, medicalofficers,vocational training instructorsare o.bvious
However, there are other lower categories of staff for whom practical arrangements
, , I . --..
, ._-..-.-... .-
. ,- '::.':
213
.. ... ..T -. arranged for such peiiod as \vould i~llowthe Agencyto rrlakealternative staffingarrangc-
n~ents. One point must, however, been~phasized. The Agencycould not undertake obli- .
gations (such as are placed on employers in some States) to continue paymentsof salary.
either in whole or in part, or of any other ernolunie~ltsor benefitsduringa period of military
service. Obligations of this kind would in effect meanthat the United Nations was subsi-
dizing militaryservice in a particular State-a useof funds scarcelylikelyto be acceptable
to contributing States and private entities-and payingdouble salaries for one post, since
a replacement staff memberwould also have to be paid.
There is, however, a major disadvantage to the relaxation of this ininiunity in that it
I '- would force the Agency to deal somewhat harshly with one or other of the individuals
affected. Thatisto say,the Agencywouldeither haveto terminatethestaffmemberrequired
to do militaryservice orappoint a replacement on a purely temporarybasison thecondition
thathe would have to be terminated when the previous staffmembercompletedhis military
service. There is yet a further disadvantage in the \vastageand relative inefficiencyof the
Agency'straining and re-training of staff so as to acconlmodateperiodsof absencefor mili-
tary servicd. Thus, taking all considerations into account, .thejustification for retaining
this inin~unityis a very conlpelling one. The Agencywould hope to secure a host State's
acceptance ofthe proposition that to impose military serviceon Agency officialswould do
harm to the Agency whichwould far outweigh any benefitto the host State.
6. It has already been enlphasized that privilegesand immunitiesdo not existfor the
benefit of the individual and that, in a proper case,the Secretary-Generaland on his dele-
gation the Comn~issioner-Genera1can waive these privileges and. immunities. Thus, any
abuse of these privilegesand immunities would lead to internal disciplinaryaction by the
Agencyand to the possibility that,.consequent upon a waiver, the host State's own courts
night assumejurisdiction over an offender.
7. The host State has ample opportunity for conveyingits viewsabout possibleabuse
to the Commissioner-General. In the event that the Agencyshould not feelable to share
the host State's viewthat an abuse had occurred, the host State wouldstill have opento it
amplesafeguards. Itcould convey itsviewsdirectlyto the Secretary-Generalof the United
-% Nations who, by reason of his acquaintance with the world-wideapplication of the 1946
, Convention, could take his decision upon the reasonablenessof opposed vie\vs. And, in
final analysis, it could utilize the disputes procedure providedby the Convention itselfin
Section30.
15 May 1968
15. QUESTIO W NHETHER THE SALARY OF A STAFF MEMBER CAN BE ATTACHED
AS A RESULTOF A COURTORDER
Letter to the Lcgal Liirisor~Officer, UnireclNario~uItrd~~striol
De~~eloptnerO rt~~garrizntion
, ... . .
Yourefer to the hypothetical situation wherencourt of law,in the executionof a judge- . .. . .... ....,,
ment against a staff nlember for a debt owed by him, attempts to require the UNIDO to
pay a part of thesalary of the stafi member to hiscreditor. Such a proceedingis sometimes
referred to as garnishment, or attachment, of salary.
Thcre is no doubt that such n proceeding with respect to thc UNDO is null anti void.
In t!?:firsf p!:rcser\.iccof the co~rrtorder upon UNiDO isa legalprocessfrom \\*hichthe 1969 UN JURIDICAL-K - EXTRACT
Govcrnnient of India in its instrument of acceptance,nhwasisirbniirtcclfor.tlcpc\\it11
the Secretary-General on 6 January 1959. As that dccl:~~.atnould I~avcbeen construrcl
as a rcscrvation, the Sccrctary-Generaldeclineclto receivc thc instr~rrnentfor. tlcfinitivc
<!:l',\s311irt:fi.rt.ctlr..>ttto thc.Or(inl~i7ntic)n.
Pending the dscision of tlie Organization, the questiof thc Jndinn resert.arion it1
its wider aspect relatingto the procedureto br:followedgenerally by the SccretnrpCie~~eri~l
in relation to reservations to multilateral treatieswas considered by the General Assembly
at its fourteenth session. anstatement made during thedebate in the Sixth Committe3'
the representative of India explainedthat the Indian declarationwas a declaration of policy
andthatit did not constitutea reservation. Inits resolution (XIV) of7December 1959,
the General Assembly, inferalin, noted the said statement, expressedthe hope that, iil the
light ofthat statement, an appropriate solution mightbercached in the Inter-Goternmenla1
Maritime Consultative Organization at an early date to regularize the position of India,
and requested the Secretary-General to transmit the resolution, together with relevant
records and documentation, to the Organization.
The Council of the Organization wasseizedwith the question at its third sessionand.
on 1 March 1960adoptedresolutionnumber.C.1(111)in whichit took, inter.alin,the follotv-
ing action:(0) took noteof the statement made on behalf of India as recorded in the reso-
lution of the General Assemblyreferred to above; (b)noted that the declaration therefore
has no legal effectwith regard to the interpretationof the Convent(c)consideredIndia
to be a member ofthe Organization. As a resultofthat resolution,the instrumentof accept-
ance of the Convention by the Government of India was formally deposited with the
Secretary-General. , . . . .. .. .. . ...
Having regard to the foregoingconsiderations,t11eSecretary-General, before proceeding
with the.deposit of the instrument of acceptance of the Convention by the Government
of the Member State concerned, wodd appreciate it if that Government would clarifyits
position regarding the declarations contained therein, in the sense that they have been
intended as declarationsof policyand do not constitute a reservation. Such a clarification
formally communicated to the Secretary-Generalby the said Government would obviate .
the necessity of referringthe question to the Organizationfor its consideration and would
permit the Secretary-Generalto receivethe instrument for definitive deposit.
3 July 1969
14. EXCLUSI VUETHORITYOF THE SECRETARY-GEXE ARA REGARDSPER&llSSlON
TO EXECUTE THE LSAIVERS OFPRIVILEGEA SND IICIJIUNITIERSEQUIREDBYA MEMBER
STATE FROM STAFF ~~EII;BER'S bIAISTAIh'lNGOR SEEKING PER51.4XESTRESIDEKT
STATUSIN THAT STATE-POLIC OYFTHE UNITEN DATION INSTHAT RESPECT
1VIet~joratrc/o1tirri. Clricfof Rrrlc>sildh*occn'lrrSsection,Ofice of P~aotrtr~l
1. You have asked whether the Secretary-General's delegation o afuthority to ihe.'
Administrator of the United Nations DevelopmentProgramme (UNDP) and to the Execu-
tive Director of the United Nations Children'sFund (UNICEF) can be viewedas.including
authority to permit staffmembersto waive privilegesand immunitiesof the United Nations.
The Secretary-General'sauthority with respectto the Organization's privileges andinmu-
nities (of which those applicableto officialsare, of course, only a part) is not essentially
a personnel matter; and without an express provision on this point, no such delegation
3'OficinlRecordsoftheGetrewlAssellrbl, ornreerrtssion,Si.rrltCon~,nir,14theeting.
714 could be inferred from the delegation of powers relating to administration of the Staff
Regulations and Rules on appointment and selection of staff.
2. In our view,the authority has not beenformallydelegatedand, moreover, itshould
3. Authority to waive privileges and immunities is vested exclusively (excepftor his
. .-.. own privilegesand immunities, which the Security Councilmay waive) in the Secretary-
General. The inmigration law of the Member State concerned,in its provision requiring
. .
\vaiversof immunity as a condition for United Nations staffmembersto acquireor maintain
resident status in that State, does proceed on the apparent assumption'thatat least some of
i:^ i the privileges and immunities accorded to United Nations officialsas such can be waived
by them personally. Nonetheless, the Charter, the Convention on the Privileges and
Immunities of the United Nationsn and the Staff Regulationsmake it clear that, so far
I-.
I as the United Nations is concerned, in its relations withstaffmembers,privilegesand imrnu-
nities arc not pirquisites of staff members: on the contrary, they are the prerogatives of
the Organization itself and are related to the Organization's functions,and it is reserved
to th'eSecretary-General to determine tvl~enthey should be waived. Accordingly,permis-
sionto staff members to execute the waiversistantamount to a waiver of the UnitedNations
i immunity.
4. Policy on the conditions under whicha staff memberis permittedto waiveshould,
in our view, be uniformly applied throughout the Organization. The policy formulated
and maintained by the Secretary-General, pursuant to Gei~cralAssembly expression of
intention and understanding, is against appointing persons having permanent resident
status in the Member State concerned as staff members in the professional categoryand
againstpermitting staffmembers inthe professional categoryto waiveprivilegesand immuni-
ties as is necessary to acquire such status. Exceptions have been limitedto cases where
the staff member seekingpermission is stateless,defacto or de jwe. In the case of generai
service staff, the policy is to grant requests for pern~issionto executethe waiver.
5. Notwithstanding the suggestion that geographical distribution is less important
a consideration for the recruitment of professionalstaff for UNICEF and UNDP than for
other United Nations professional staff, we do not think this tvouldjustify excluding staff
(, of these organs from the Organization's p~licyin regard to the waivers. Although con-
sideration of geographical distribution weighedheavily in the formulation of the General
Assembly'sposition on the subject, itcannot beassumedto havebeentheonlyconsideration;
nor can it be said that in principle geographic distribution is irrelevantto the appointment
15. ISSUANC OF VISAS TO MEMBERS OF THE FAMILIESOF UNITE NDATION OSFFICIALS
ASSICXEDIN THE UKITED STATES
Letter to a p;-il-ateperson
You may i\~ishto have the following information on the international law basisand
the established procedures for the United Nation's facilitating the entry into the United
States of members of families of United Nations oficials. Of course, theright to a United
..............
States visa under United States law as such isnot ivithinthe purviewof the UnitedNations.
--.-.-
':IIJr~itcdW.ltir\ns.TrcnfSeries\.01.I.p. 1:'.1974 UN JURIDICALYEARBOOK - EXTRACT
n~cmhcrconcerned may not becompelledto appearand indeedshould notappcnrasa witncss
without spsc'i~~aull~uri~;~tiorr.
3. 011 the other hand, Section 20 of the Convention provides that "'TheSccreti~ry-
General shall have the right and the duty towaivethe immunityof any offtci;ilin anycase
where, in his opinion,the immunitywould impedethe course ofjustice and be waived with-
out prejudice to theinterestsofthe UnitedNations".Ifthisevidenceisimportant to thecase, it
is entirely possible that permission would be granted for her to appear. However,such
appearance wouldrequire specificauthorization.
4. The staffmemberconcerned maygiveawritten statementon theunderstanding thatit
does not result thereforethat she wouldappearin any proceedings.Her statementshouldbe
restricted to plain factsas she herselfrecallsthemor can check on the records.
17May 1974
23. EXTEST OF THE IbIhlUNlTY FRO51 LOCAL PROSECUTIOS ESJOYED BY USITED~'ATIOSS
OFFICIALS UNDEREXISTING INTERNATIOXALAGREEMEXTS
Letter to theAssistan!to the Secretary-GeneraloJ
an interna~ionaolrganiza~ion
The question withwhichyou are concerned iswhetheran internationally recruitedstafi
member havingcommitted a seriousoffencewithin thecountry of his duty station couldbe
prosecuted and punisl-iedunder the lawof thecountry to whose territory heis returned. ..
As concerns United Nationsstaff belowthe AssistantSecretary-Generallevel,whether
internationally or locally recruitedand whetheror not "seconded"from governmentservice,
their immunityunder the Conventionon the Privilegesand Immunitiesof the UnitedNations
is limited to actscommitted inthecourseoftheirofficialduties.staff'memberwouldhaveno
specialimmunityfrom local prosecutionfora criminaloffenceby virtueof hisUnitedNations
employment. Whetheror not he wasprosecutedwouldnot bea matter ofdirectconcernto the
United Nations although the Organizationwouldintervene to ascertain whetherin fact his
officialfunctionswere involvedand to offersuch general assistanceand good officesas the
particular situation required,.g. obtainingcounsel,advising familyand officials of hisown
government, etc. Appropriate disciplinary measuresnder the Staff Regulationsand Rulesof
the United h'ations wouldbe consideredindependentlyof the action of either thelocal
government or his home government. Therehavein fact beencasesof arrest and prosecution
of internationally recruited staffin thecountryof their duty station.someinstancestheir *
return to their home country after convictionor evenprior to prosecution was arrangedbut
without UnitedNations intervention.
Apart from those holding the rank of Assistant Secretary-Generalar above. United
Nations officialsdo not have"diplomatic"status underthe Convention onthe Privilegesand
Immunities of the United Kations. However insomecountries where UnitedKationsoffices
are maintained, seniorUnitedNationsstaffbelowthat levelare byspecialagreementaccorded
diplomatic privileges and immunities. In adddition, under the Headquarters Agreements
between host governments andthe UnitedNationsfor the economic commissionsall officials
are immune from"personal arrest or detention".Nonetheless,wehavehad, so faras Iknow.
no occasion to consider the problemofjurisdictionover offencescommitted bysuchstaff.
Of course,immunitygrantedto officialsisjustifiedin terms of theeffectivefunctioniof
the Organization. Under section20of the Conventionon the Privilegesand Immunitiesof the
United Nations,it wouldalwaysbeincumbenton theSecretary-Generalto waivethe immunity
from arrest or prosecution in any case"wherein his opinion theimmunitywouldimpedethe
course of justiceand can be waived,without prejudiceto the interestof the Unitedations".
I April 197:. - -.. ... . .
1975 UN JURII)ICAL YEMBOOK - mm
-
.. . financial penalty and thc Organ-zation'spolicy of sclf-insurancewith rcspcctto
..,.:,:;i,.41 damngc t6 its vkhicles.
"8. It is our rrndcrstnndingthat thcre arc occasions in missionareas where
stalt'n~cmbcrs rvf~o;trc IIOLftlil-tilL[I.IVC Ti:J il ilcii\~.lltc:Jrivr:11:2;11i:...
on official United Nations business. Thc imposition of a financial penaltyon
such staff rncrnbcrsin cascsnot involving grossncgligcnce on their part would
seem to us to be even more unjustifiablethan in cascs involving full-time drivers.
"9. We would recommend for these reasons that the financial penalty -
proposed in Section VIEof the draft statement not be applied in the type OFcase
we have referred to in category (b) in paragraph 3 above; and that the provisions
of Section VII of the draft statement be amendedaccordingly."
.
2. I would like to add, by way of clarificationin relation to paragraph 9 of the
memorandum, that determination of a staff member'sfinancial responsibilityfor losses
to the Organization should in no case be considered a "financial penalty". The assess-
ments or "surcharges" as the Board may recommend under Financial Rule 110.15
(b)iG are in the character of a recuperationof at least part of the lossesincurred. One
should thereEorekeep always inmind that these surcharges are not to be equated with -
the disciplinary measures providedfor in chapter X of the Staff Rules.
Inter110n1iemom~dnm
This, ophion deals with the visa status of two nationals of a Member State
who were locally recruited and utho both serve in the General Service categoryzt ;
Headquarters. Both hold probationary appointments. One enteredthe United States 1
j
on a business visa (B-1) and the other entered the United States under atreaty-trader
visa (E-1). Both: currently hold GI visas, which were applied for by the United
Nations on their behalf and whichwere summarilygranted. Some timeafter the com-
nlembers applied under the appropriate staff rules and regulations to have members stag -
of.tbeir family join them and requestedthrough the United Nations that those family
members be granted G-4 visas. ...
2. Under both thc provisionsof the Conventionon the Privilegesand Immunities
of the United Nations;' (hereafter referred to as the "Convention"')and the Head-
quarters Agreement between the United Nations and the United States78(heieaftei
referred to as the "Headquarters Agreement"),immunity is grapted to officialsof the
76 Financial Rule 110.15 r"Wrifitlg-08 losses of property
The Controllermay, after full investigationin each case, authorizethe
writing-offof lossesof UnitedNations propertyor such otheradjustmentsof the records . .
as will bring the balanceshown by the recordinto conformitywith the actualquanii.
"(6) Final determinationas to allsurchargesto be made againststaff members -
or otheis as the resultof losseswill be madeby'theController."
7' United Nations, Treaty Series,vol. 1,p. 15.
7s Ibirf.v01.11, pi 12.
.*.-.. tions in matters relating to immigration restriction and alien registration.
section IS, of the Convention in part states:
"Officialsof the United Nations shall:
. .
"(d) Be immune, together with their spouses and relatives dependent on
:.. them, from immigration restrictions and alien registration; .. ."
icle IV, section 11 of the Headquarters Agreement states in its relevant part:
"The federal, state or local authorities of the United States shall not impose
. any impedimentsto transit to or from the headquarters district of: (1) represen-
. tatives of Members or 'officizlsof the United Nations, . . . or the families of
such representatives or officials."
rthermore, articlt: IV, section 13, states in part:
. . ..."(a) Laws and regulations .in force in thc United States regarding the
entry of aliens shzll nor bc applied in such manner as to'interfere
; . .. with the privileges referred to in Section 11. When visas are required
for persons referred to in that section, they shnll be granted without
charge and as pronlptly as possible."
"No proceedingsshall be instituted under such laws or regulationsto require
i:. any such person to leave the United States except with the prior approval .of
the Secretary of State of the United States. Such approval shall be given only
.- .: after consultztion with the appropriate Member, in the case of a representative
of a Member (or a member of his family), or with the Secretary-General.. ..
in the case of any other person referred to in Section 11."
Under the Convention, the immunities gra1:ted to United Nations officialsmay
be waived by the Secretary-General. Article V, section 20, states in relevant part:
"The Secretary-General shall have the right and the duty to waive the
immunity of any ofFicia1in any case where, in his opinion, the immunity would
imnede the course of iustice and can be waived ~ithout prejudice to the inter1
On the other hand, where a dispute arises in which the Secretary-General is not
disposed to waive the immunity of st& members and in which the United Nations
seeks an enforcement of the status granted such officials,it may resort to the dispute ,
..-settlement provisionof the Headquarters Agreement embodiedin article VIII, section
21 (a), reading as follows:
"Any disputebetween the United Nations and the United States concerning
the interpretation or application of this agreement or any other supplemental
agreement, whichis not settled by negotiation or other agreed mode of settlement,
shall be referred for final decision to a tribunal of three arbitrators, one to be
named by the Secretary-General, one to be named by 'the Secretary of State
of the United States, and the third to be chosen.by the two, or, if they should
t fail to agree upon a third, then by the President of the International Court of
T" '- Jqstice."
In addition to the Convention and Headquarters Agreement, Unitcd Nations
officialsare also given immunity from certain visa restrictions undcr Title S of the
i United States Code, which embcdics the L'nitcd States law regarding aliens and . ...,... ..
~l:~;i,~n:~.\bcL;,,.l,; 102 l>la:.id~s iI::\tl n!ex: ns they continue in the nonimmigrant
\ classesenull>erared in that section,
IS9 "incligibilito rcccive visas andexclusion or deportation of alicns shall n':i
construcd to apply to non-immigrants .. . (3) within the classes dcscribcd is
paragraphs . ..(15)(G) (iv) of sccrior. 1101 (a) of this titlc, exccpt 1h;y.r
provisions relatingtorensonnhlc rcquirt.n?i.nf I.cw~?~::;a:~.\.id,&,,. ,il.-L,;
n: iJcn;iiica~ioarid docittilcntation necessary to establish their q's2tkx
undcr such paragraphs . ..".
Section 1101 (a) (15) (G) (iv) in turn states that nonimmigrant aliens inclufr
. . . "officers or employees of such international organizations,and the members ofthe=
immediate families". Therefore, it appears that under United States immigrati~~la=-.
neither section 1226 relating to the procedure for the exclusion of aliens, nor s:ctice
1251 relating to procedures for deportation cf aliens may be appIied to either staE
members or their familieswhere such individuals fall within the defi'nitionof s:~ti,-~
1101 (a) (15) (G) (iv) and the protection afforded undcr section1102 (3).
States immigration law that (1) staff members holding G-4 visas and subject toUtheef
relevant provisions of immunity cannot be subjectsd to exclusion or deportaticn prc-
ceedings, and (2) the privilcges and immunities granted those staff members are alsc
. extended to members of their families who, in turn, may not be lawfully refuseGA
visas and may not be lawfully excluded from the United States.
.21 October 1975
27. QUESTION WHETHER A UNITEDNATIONS OFFICIAL MAY BE GRANTED SPECLU
' LEAVE TO COMPLETELlILlTARY .SERVICE IN'HIS COUNTRY OF ORIGIN LV THE LIGHT
OF THE RELEVANT PROVISIONS OF THE CONVENTIO NN THE PRIVILE GSI)S
IMMUNXTIE OF THE UNITEDNATION SND 01: APPENDI CXOF THE STAFFRLZES
Intarnalmcjnorand~rm
The Officeof Legal Affairs has been requested to give its opinion regardinthe
applicable law relatins to military servicc s?staff member who is a national of a
Member State. The staff member has req~~estectlhat he be allowed to take special
leave from the Organization to complcte such service.
1. Under article V, section IS (c, of the Convention on Privilegesand Immuni-
ties of the United Nations, officials of the Organization are' immunefrom national
service obligations. The Member State of which the staff member concerned is 2
national has acceded to the Conventionwithout declaration or reservation.The Memkr
State in question would, therefore, be obligated to recognize the immunity of in
official under the terms of article V, section 1s (c). The staff member has a contnct
with the Organization which qualifieshim as an official under the terms of article V,
section 17, of the Convention. ,.
2. Under section (c) of Appendix C of the Staff Rules, a staff member who has
completed one year of satisfactory probationary service or who holds a permanrai
or regular appointment may, if called by a hfember Government for military sen.1~2,
be granted special leave without pay by the Organization for the duration of err
service. This is true even though section (a) of Appendix C recognizes that srr5
members who are nationals of those Member States having acceded'to the Convention
on the Privilegesand Immunities of the United Nations are immune from such s~rvice.
Ssction (1) of Appendix C furthermore states that the Secretary-General may apply
the provisions of that Appendix where a'staff member volunteers for military sen-icz
or requests a waiver of his immunity under article V, sectio(c)8of the Convention.
3. me Secretary-General, therefore, has discretionary authority to grant speciz!
leave in the case of the staff member in question, even though the staff member is
190 v -
"ineligibilityto reccive visas and exclusion or dcportation of alicns shall not be
construed to apply to non-inmigrants . . . (3) within tllc clnsscs dcscribcd in
paragraphs ... (15) (G) (iv) of scction 1101 (a) of this titlc, except forhose
rrnvisions rclnting to r.c'nzt?:;nr':q~~i~.r,lt:r\f ~-x~~!>;\rsnd visnz 2.: P P?*--?;
of identification and documentation ncccssary to establish their qt~zlifications
under such paragraphs ...".
Section 1101 (a) (15) (G) (iv) in turn statcs that nonimmigrant alicns include
"officers or employees of such international organizations, and the members of their -
immediate families". Therefore, it appears that under United Statcs immigration law,
neither section 1226 relating to the procedure for the exclusion of aIiens, nor section
1251 relating.,to procedures for deportation cf aliens may be applied to either staff
members or their families where 'suchindividuals fall within the definition of section
1101 (a) (15) (G) (iv) and the protection afforded under section 1102 (3).
4. It is clear under the Convention,the Headquarters Agreementand the United
States immigration law that (1) staff menlbers holding G-4 visas and subject to the
relevant provisions of immunity cannot be subjected to esclusion or deportation pro-
.-
21 October 1975
.-
--
27. QUES~ION WHETHER A UNITEDNATIO~SO SFFICIAL NAY BE GRANTED SPECIAL
1. Under article V, section18 (c), of the Convention on Privileges and Immuni- !
ties of the United Nations, o%cials of the Organization are immune from national
service obligations. The Member State of which the staff member concerned is a
national has accededto the Conventionwithoutdeclaration or reservation.The Member
State in question would, therefore, be obligated to recognize the immunity of an
officialunder the terms of article V, section 18 (c). The staff member has a contract
with the Organizationwhich qualifieshim as an ofticia1under the terms of article V,
section 17, of the Convention. .
2. Under section (c) of AppendixC of the Stafi Rules, a staff member who has .
completed one year of satisfactory probationary service or who holds, a permanent
or regular appointment may, if calledby a hfember Government for military service, - .
be granted special leave without pay by the Organization for the duration of that
service. This is true eveil though section (a) of Appendix C recognizes that staff
members who are nationals of those Member States having acceded tothe Convention
on the Privilegesand Immunitiesof the United Nations.are immune from such s~rvice.
Snction (1) of Appendix C furtl~ermorestates that the Secretary-General may apply
the provisions ofthat Appendix where a staff mem'Jer volunteers for military service .
or requestsa waiver of his immunityunder articleV, section 18 (c) of the Convention.
3. The Secretary-General, therefore, hasdiscretionary authority .to grant special
leave in the case of the staff member in question, even though the staff member is ,g.+.,..
L------*:fin5c~rviceobligation. The staff member may not waive his own
..-- .--...-,-m-.y be waived only by the Secretary-Generalin conformity
..
y--gY~th article V, sectio20,of the Convention. 24 December 1975
--_. ...
-I- -..
-.- .5. EXEMPTIO FROM TAXATION OF SALARIES AhV EMOLUMENTS OF UNITED NATIONS
OFFICIAL SY VIRTUE OF RELEVANT PROVISIOSS OF THE CONVENTIO ONN THE
, PR~~LEGES AND IMMUNITIE OF THE UNITED NATION SND APPLICABLE GENERAL
ASSEMBLY RESOLUTIONS WITH PARTICULAR REFERENCE TO THE POSITION OF
':' MEMBERS OFTHE SECRETARI ATTUNITED N-~TION HSEADQUARTE IR SEW YORK
Letter toa member of a Perrnanerz t4issiou
3. . . ---.--I:.. c-str+5ys+ifitnewb:rho nffirialqer dated 3 February 1975 concerningthe
theUnited Nations in New
The tax status of United Nations stag members is governed by the Convention
-, rr, ~~:..:l~~~.,"ATmmr,n;tipc:nf the TTnitedNations. adobted bv the General L
.... Assemblyon 13 February 1946. Article V, section 18, of the Convention provides,
intenlia,as ~O~~OWS:
"Section 18. Officialsof the United Nations ~11811:
11...
"(b) Be exempt from taxation on the salaries and emoluments paid to
them by the United Nations."
Article V, section 17, of the Convention specifiesthe categories of officials to
which article V shall apply. It reads as follo\vs:
"Section 17. The Secretary-General will specify the categoriesof officials
to which the provisions of this Article and ArticleVII shall apply. He shall sub-
- mit these categories tothe General Assembly.Thereafter these categories shall
be communicatedto the Governments of a11Members.The namesof the officials
includedin these categories shallfrom time to time be made known to the Gov-
ernmentsof Members."
On 7 December 1946, the General Assemblyadopted resolution76 (I), entitled
"Pr;v;learcnnd Tmmr~nitje~of the Staff of the Secretariat of the United Nations".
"the grantingof the privileges and immunitiesreferred to in Articles V and VII
of the Conventiononthe Privileges andImmunitiesof the UnitedNations, adopted
by the General Assemblyon 13 February 1946,to all members ofthe staff of the
United Nations, with the exception of those who are recruited locally and are
assignedto hourly sates".
me categoriesspecified by General Assemblyresolution 76 (I) have remained
unchanged.
As regardsmembers of the staE of the United Nations DevelopmentProgramme
f stationed in your country, it would appear that their tax status is governed by article
IX of the'Standard Basic Agreement concerning Assistance concludedwith UNDP..
Atbough your country is not a Farty to the Conventionon the Privilegesand Immuni-
ties of the United Nations, the relevant provisions of article V of the Convention
191
.. .. . ,..-.--- .
1976 UN JURIDICAL YEARBOOK - EXTRAC -T
detcrmine the reasons why "the immunity would impede the coursc of justice and
can bc waived without prejudiceto the interests ofe United Nations".
In prcvi~lls CaSCS ill~~~lunilgidll~~1to dipl~lli;l~~X!I'S-)I~I:Cofi2ini,rf
international organizations have not been a bar to such persons testifying volrrntarily
as witnesses. As a recent example from practice I refer to a case which was heard
in New York City Criminal Court, Part 111,and in which United Nations officials
from the Secretariat's.Security Service testified as witnesses against defendants on
15 September 1970.
8 January 1976
29. DECISION RENDERED BY A CRIMINAL COURT OF THE UNITEDSTATES IN A CASE
INVOLVING A UNITEDNATIONS STAFF MEMBER APPEARING AS COMPLAINANT ON
BEHALF OF THE ORGANIZATION- ITEXCLUSIVELY FORTHESECRETARY-GENEML
AND NOT FOR THE JUDICIAL AUTHORITIESOF A HOST STATE TO DETERMINE WHETHER,
IN ANY GIVEN INSTANCE,A STAFF MEMBER HAS PERFORMED AN OFFICIALACT OR
HAS ACTED IN EXCESS OF AUTHORITY AND WHETHER IMMUNITY SHOULD BE
WAIVED-PROCEDURE SVAILABLE FOR THE SETTLEMENT OF DISPUTES WHICH
MIGHT ARISE FROM D. .RMINATIONS OF THE SECRETARY-GENER INLTHOSE
RESPECTS ''
Letter to the PermanentRepresentative ,ofa Member State
I have the honour to refer to a decision rendered in the Criminal Court of the
City of New York, on 19 January 1976 in the case of the People of the State of
New York v. Mark S. Weiner (p'ublished20 January 1976 under New York County,
Criminal Court, Trial Term, Part 17).1fi In this case a United Nations Security
Officer is appearing on behalf of the .United Nations as complainant, in a matter
relating to hisofficiaIduties, and the Judge's decision contains a number of remarks
which bear upon the privileges and immunities,of the United Nations, and which
give rise to the most serious concern on the part of the Organization. This concern
compels me to bring the matter to your attention, and to place on record the position
of the Secretary-General on the major legal issues involved.
Facts of the case
Before turning to the legal issuit,is necessary to give a brief account of the
,facts surrounding the case.
On Friday, 14 November 1975, at ~pproximately 0300 a.m., the difehant in
the case in question sprayed red paint on the wall dividing the circular driveway to
the Secretariat building at the entrance to the Headquarters Division at 43rd Street.
He was immediately detained by United Nations Security Officers,who also calledjn
police officers from the 17th precinct of New York City Police Department. The
defendant was then arrested, chargedwith criminalmischief (a class A misdemeanor
under Section 145.00 of New York Penal Law) and he was taken to the 17th precinct
station in the custody of the N.Y.C.P.D.fficers.
As already indicated, one of the United Nations Security Officerswho detained
the defendant is the chief witness and complainant on behalf of the Secretariat. The
Security Officer therefore wasirectedby his supervisors to appear voluntarily, as
115378N.Y.S 2d 966.Fora summary of thedecision,sep. 249 ofthi senrbook.
236 :;.... nere have been four hearings in the case, all of which were held before the
Z; Judge. Responding to pleadingsby Counsel for the defendant, the Court, at the
:- hearingheld on 25 November 1975,requested the Secretariatto submit a legal memo-
;* Orandurnon the question of the Court's jurisdiction over acts against United Nations
L-.property situated within the Headquarters District. On 9 December, I, as United
NationsLegal Counsel, wroteto the Judge stating the Secretariat'sviewon the jurisdic-
t,z"\l issue and,l46at the hearing held on 12 December 1975,the Judge indicated that
dL.,jd not intend to sustain the objectionsmade against the Court'sjurisdiction.
At the hearing held on 12 December, Counsel for the defendant raised objections
' . to the admission of the testimony by the United Nations Security Officer, who was ,
present,on the .groundsof the Security Officer's immunityfrom jurisdiction for official
acts.As a result of this objection,the Court requested the Secretariat tosubmit a further
legal memorandup on the extent of the immunity from jurisdiction possessedby the
. Security Officer in donnexion with his appearance as a witness for the prosecution
in the criminal proceeding againstthe defendant. The Judge ruled that for the Court
to proceed with the case, the Secretariat should,state in a memorandum its view on
whether the Security Officerhad acted in his official capacity and whether he-were
he to appear as a witness-would be immune from contemptof court citations,perjury
chargesor "cross complaints".
Pursuant to this request, on 8 January 1976, the Officer-in-chargeof the Office
of Legal Affairs wrote to the Judge stating the Secretariat's positionon the extent of
theimmunity fromjurisdictionenjoyed by United Nations officialsappearing voluntarily
as witnessesin criminal proceedings.147
In his written ruling on 19 January 1976, referred to at the outset of this letter,
the Judge denied the motion by the defense to dismiss for lack of jurisdiction and
. ordered a hearing held on 9 February 1976.
At the hearing on 9 February, the District Attorney proposed adjournment of
.-'".case in contemplation of dismissal. However, this was refused by the defendant
i,h his attorney, both of whom insisted on a full hearing. The Judge fixed such a
hearing for 27 February 1976, at 9:30 a.m.
Legal position of tlre Secretariat
The Secretariat has no comments on the actual decision of the Judge to deny
the motion to dismissfor lack of jurisdiction in his ruling of 19 January. Its concern,
however, is raisedby some of the reasoning adranced on the matter of the Security
Officer's privilegesand immunities. In effect, it would seem, the Judge was arguing
that it was inthe last instancefor him, and not for the Secretary-General,to determine
whether the SecurityOfficerwas acting in an officialcapacity and,furthermore, whether
the Guard had exceededhis authority through the use of excessiveforce, such excess,
in the Judge'sview,rendering inapplicablethe Guard's immunityf.or officialacts. While
the Judge's remarks are in the nature of obiter dicta, their circulation in published
form, without the Secretariat'scontrary views being on record, could have a most
serious effect upcn the position of United Nations ofiicials in countries throughout
the world.
First and foremost, in the view of the United Nations secretariat, it is excIusively
for the Secretary-Generalto determine the extent of the authority, duties and functions.
140 SeeJrtridicnYj earbook,!975, p. 157.
1.fiThe let!cr :n question IS reproduced on p. 234 of this Yeorbook.of United Nations officials.Thcsc nlattcrs cannot hc ilctcrminccl by. or bc subject to
scrutiny in nationalcourts. TIis clcar that ifsuch courts could over-rule rhc Secretary-
UC,IG,;L~ Jcs~crn1irli1riia[ail ;ICLivas"oi11si;t'i11Inussoi coillr~ctiilgrlco~s~onsoui~
be inevitable, givcn thc many countries in which thc Organization operates. In many
cases it would be tantamount to a total clcnial of immunity.
Likewise, the Secretariat cannot accept that what is otherwise an "official act"
can be determined by a local court to have ceased to have been such an act because
of alleged excess of authority. This again, would be tantamount to a total denial of
immunity. It may be noted, in additionto what is said in the paragraphs that follow,
that the Secretariat has its own disciplinary procedures in cases where an officialhas
acted in excessof his authority, and also the power to waive the immunity particularly
where the course of justice wouldotherwise be impeded. The Secretariat realizes that
cases of conflict mayarise as to whether an act was "official" or whether an officizl
had overstepped his authority, but the Convention on the Privileges.and Immunities
of the United Nations espressly provides procedures for waiver of immunity, or for
the settlement of disputes by the International Court of Justice. These are the appro-
priate procedures for settlement, not the over-ruling of the Secretary-General'sdeter-
minations by national courts.
In the present case, the Secretary-Generalat no point waived the immunity bf
the Security Officerconcerned, under Section 18 (0) of the Convention on the Pri-
vileges and Immunities of the Un'itedNations'" and also Section 288 d (b) of the
United .States International Organizations Immunities Act." The authority granted in .-
Section 20 of the Conventionto waivethe immunity of any officialis enjoyed exclusively
by the Secretary-General, and waivercannot be effected instead by the Court. That
this is a reasonable understanding of the Convention is borne out not only by the -
specification in Section20 of the conditions under which the Secretary-General may
waive, but alsoby the provisionsin Article VII for the settlement of disputes regarding
all differencesarising out of the interpretation or application of the Convention. As
already mentioned, the Convention foreseesthat disputes are not to be settled by the
courts of a Member State party to the Convention, but that differences between the
United Nations on the one hand and a Member on the other hand are to be decided
by an advisory opinion of the International Court of Justice. The fact that such 2
procedure is available conclusivelydemonstrates the weakness of the assumption by
the Judge that national courls may determine the extent of immunity from jurisdiction
enjoyed by a United Nations officialacting in his official capacity as directed by the
Secretary-General.
I trust that the foregoing,will serve to explain the very real concern which the
Secretariat feels over the reasoning of the Judge, and its need to place,its absolute
reservations to that reasoning on reccrd. The Secretariat cannot accept an approach
which would submit the officialacts of its officials to the scrutiny of nntional courrs
throughout the world. To do so, as already pointed out, would be tantamount to
148UnitedNations, Trent?Series,vol.1, p.15.
*The opinion of the Judgeis inaccurate and misleadingin not referring tothese
sourcesof the immunity,whichwere madeplain in the Sec~etariat'sletter to him of8 Jac-
and the HeadquartersAgreementofrs in hi1947.nThe Charter artlcles are only in the mos:rte:
general terms, which are subsequentlyspelt out in specificdetail in the Convention on
Privileges and Immunitiesa,nd the Headquarters Agreementdoes not deal with the
privilegesand immunitiesof United NationsofficiaIs.The Judge is further in error when
he cites the decisionin Unifed States ex. re/. Cnsnnosu V. Fiepatrick as a precedent, 2s
this caserelatedto a memberof a permanentmission, and turned on the interpretation of
Immunitiesof the UnitedNationswhichis here involved.e Conventionon the Privilegesand 7
stripping officialsof their immunity. The Organization is frequently operating in areas
5:. of tension and conflict,in which immunity for officialacts is essentialif United Nations !
t oflicialsare to function at all.
k Finally, I trust you will agree it is crucial that testimony by United Nations i
z' Security Officersmay be admitted and accepted as competent by criminal courts in I
i- cases that involve the safety of United Nations personnel or property. The absolute i
i-- need for such testimony, both by officialsand by members of permanent missions in I
relation to complaints made by such missions, has been constantly stressedby United i
: ( ) States representatives in the Committee on Relations with the Host Country. The 1
i Secretariat, however, wouldbe most reluctant to instruct its officialsto testify if it is
accepted that the particular Court before which they are to appear may strip them i
t.. of the proper immunities accorded to them by international and national law. I
i I very much hope that, in the ligllt of the above, we may arrive at a mutual I
understanding on the procedures and issues to be taken into account when United
i--, Nations officiplsare called upon to testify as witnessesin courts in the United States.
30. DETERMINATIO FNR UNITEDNATION SURPOSES OF TIIE MARITAL STATUS OF A I
STAFF' MEMBER
Letter to the Director of Ad177inisiratiorrO,fice of the United Nations
High Cotnrnissianerfor Refugees
I refer to your letter of 8 December concerning the marital status of a staff I
member. I
A review of the case as it appears from the files of the Ofiice of Legal Affairs I
and from the papers which we have received from the Geneva Personnel Office
; indicate the following:
-The staff member concerned, a national of Uruguay, married a national of
the United Kingdom, in New York State in 1953; the marriage was registered
with the Uruguayan Consulate in New York.
-He obtained a divorce, which became final on 7 January 1969, in the State
of Tlaxcaia in Mexico where neither he nor his wife resided. He appeared
through his attorney and accepted the jurisdiction of the court; his wife did not
participate at all in the proceedings.
-On 18 January 1969 a marriage certificate was issued by the Registrar of the
Court in Tlaxcala declaring the marriage of the staff member and a national
of the United Kingdom, by a proxy ceremony where both parties appeared
through representatives.
-In June 1969 the first wife wrote to the United Nations Personnel Office in
New York stating her position that her marital status remained unchanged
and referring to her status for such United Nations purposesas visa, medical
insurance, pension entitlements, etc.
-In October 1969 the staff member requested the Geneva Personnel Office to
change his marital status for United Nations purposes to reflect his divorce
and remarriage as evidencedby the transIations from the Tlaxcala documents . .
of divorce and marriage which hz provided. 1976 UN JTJRIDICM. YEARBOO -K-a
6. For the reasons set out above, it therefore appears that the questionof the
United Nations radio communications within the host country of ECA, including
radio con~municationsbetween UNDP project personnel in the field and the radio
station of ECA'sHeadquarters, may have to be taken up with the appropriate author-
ities of the Government with a view to obtaining a solution that adequately meets
the operational requirements of the United Nations. In this connexion, the legal
position of the United Nations would be that the ECA Headquarters Agreementis
confined in scope to activities of the ECA, and that the subject of radio communica-
tions for other United Nations activities in the country concerned is not regulated
'2laterally, but that the United Nations irecognized by the Internationalele-
,ommunication Union as a Telecommunication Administrationwith the same rights
as States Members of the International Telecommunication Union, and thatsuch
rights in principle also may be exercised in the country in question.
22 December 1976
1s. STANDARD OFS CONDUCT TO BE OBSERVED BY STAFF MEMBERS OF THE UNITED
NATIONS OUTSIDE PROFESSIONAL ACTIVITIES-STAF MFEMBERS BELOW THE LEVEL
OF ASSISTANS TECRETARIE GSENERAL ENJOY IMMUN~ FROM LEGAL PROCESS
ONLY IN RESPECT OF ACTS PERFORMED BY THEM IN THEIR OFFICIAL CAPACITY
Mernorandrtrn to the Under-Secretary-General for Adnrinistration and Management
I have read the letter complaining about disruptive behaviour of four staff
members of the United Nations on the occasion of a meeting at a University.
As you have noted, staff members are, under staff regulation 1.4, obliged at
all times to conduct themselves in a manner befitting their status as international
civil servants and to avoid any action and any kind of public pronouncement which
, may adversely reflecton their status, or on the integrity, independence and impar-
)tiality which are required by that status. Violation of this obligationcould, depending
on the seriousness of the matter to the United Nations and therticular circum-
stances, justify disciplinary action under Chapter X of the Staff Regulations and
Rules quite apart from whether any local criminal proceedingsare involved. The
Administrative Tribunal has specifically acknowledged that "misconduct punishable
under staff regulati10 could be either misconduct committed in the exercise of
a staff member's professional duties or acts committed outside his professional
activities but prohibited by provisions creating generalobligations for staff mem-
bersY1.lThere have been cases where behaviour outsideof officialduties and after
working hours have been referred to the Joint Disciplinary Committee for advice.
Of course any complaint receivedby the United Nations in respect of behaviour
outside official activitiesshould be communicated to the,staff member with a request
for his side of the story. Thereafter it is a matter for the Secretary-General's dis-
cretion whether or not to pursue the matter by further investigation or action.
As for the immunity question, United Nations officialsother than Assistant
Secretaries General and above who have "diplomatic" status) do not have immunity
from legal process except as respects their officialacts. The staff members concerned
hcre, therefore, enjoy no immunity from suit or criminal process in respect of their
313Seeforexample Jlldget7rerltsof the Utlitcd ~\'ntiotrsA([trrbtistmtiveTribttrml, Nurn-
hrrs I10 70,J!~il:crnNO. 30, p. 133.
207non-Unitcd I\;:itionsactivities.Eveifthcg did,it\.vouldbc for thc Secretary-bc;;crai
and not thc staff mcmbcrs thcniselvcsto dctcrrninc whetller the imnlunity should bc
asserted or waived (staff rcgulation 1.8). No plea of immunity based on Unitcd
Nations employmcnt could propcrly bc made hy n stnff member without thc knox-
I~dg1:ui' lliSL.L;CCL~IL.~-G~I1~1CL.~~Iitl111~lllb~did SO 111:\VOU~~be jil~iola11011
of stag regulation 1.8.
So far as I know there has been no detailed discussion of the standards of
conduct for international civil servants sincethe ICSAB 1954 "Report on Standards
of Conduct in the International Civiler~ice"~lhhich does deal with special require-
ments relating to outside activities, politicalactivities and private life of staff members.
I do believe however that it would still be reasonable so to interpret staff regula-
tions 1.4 and 1.7 and staff rule 101.8 as to preclude an international civil servant
from repeatedly and publicly taking in his personal capacity stronglypartisan positions
on political issues. I also believe that, under staff rule 101.8, a .staff member should.
be guided by any instruction given under authority of the Secretary-General with
respect to future conduct in this regard.
18 August 1976
19. REGISTRWION OF TREATIES ASD INTERNATIONAL AGREEMENTS UNDER ARTICLE
102 OF THE CHARTER-ANY ACTION (INCLUDIN TERMINATION OR DENUNCL%TION)
- ..
EFFECTING A CHANGE IN A REGISTERED TREATY OR INTERNATIONA AGLREEXfENT
MUST ALSO BE REGISTERED-PRACT IFETHE SECRETARIA ASTTOREGISTR.4BKITY
ISSUES -
Letter to a private irrdividllal
Your letter of 18 June 1976 was referred to me for reply. In response to your
inquiry concerning the practice of the Secretariat 'with regard to denunciations of
treaties,I should like to provide you with the following information.
1. Under article 2 of the Regulationsto give effect to Article 102 of the Char-
ter,ll5 any subsequent action which effects a change in a treaty or international
agreement registered with the Secretariat must also be registered. This includes any
certified statements regarding terminationsand denunciations.
2. While the Secretary-General.has no competence to decide the legality of
an action taken by a party, it will notiayparty of any appearances of inconskiency
with the terms of the agreement and ask for clarification of the party's position.
I would like in this respect to refer you to an extract of the preface tp themonthly
Statrrnent of Treaties and InternationalAgreements Registered or Filed and Recorded
wit11the Secretariat which sets forth the position of the Secretariat:
"In some cases, the Secretariat may find it necessary to consult with the
registering party concerning the question of registrability. However, since the
terms 'treaty' and 'international agreement' have not been defined eitheriil the
Charter or in the Regulations, the Secretariat,under the Charter and'the Regula-
tions, follows the principle that it acts in accordance with the position of the
Member States submitting an instrument for registration that so far as that
party is concerned the instrument is a treaty or an international agreement
11.DocumentCOORD/CivilService/S.
115Adoptedon 14 December 1946 by General~ssemblyresolution 97 (I).
208 .-..-..,.......
?-...*~;~,.-.-.:.. 1977UN JURIDICAL - EX!EtACI!
..+.,.;:..
............ .r
..:.... B?
. .....,
2%;:.,:. .. WIT- THE MEAN OFN TG E CONVENTIO ONN THE PRIVILEGE ASND IMMUNITIES
I:<.. OF THE UNITED NATIONS
I..:
Letter to the LegalLiaisonOficer, UnitedNationsIndustrial
s . Development Organization
..... letter of 25 November 1977 on the questionof the status of
.... isin replyto
. . staff niembers when travelling directly from their home to the Organization and vice
........... versa. Your inquiry and this replyrelate solely to the questionof immunity from legal
process in connegon with traffic violations or traffic accidents involving staff members
travelling directly between their homes and the Organization.This reply also assumes
that the st& member doesnot have diplomatic immunities byvirtue eitherof his rank or
under the particularhost country agreement.
........ , ':'As indicated in my letter of 29 September, travel between homeand officeis not in
itselfconsideredto be an officialact within the ineaningof Section 18(a)of the Conven-
---.-...--. . tion on the Privilegesand Immunitiesof the United Nationswhich providesfor immunity
from legal processin respect of actsperformed by officials"in their officialcapacity".
To'avoid confusion stemming from the phrase "on-duty", I would emphasize the
diierence between the basis for the immunity for officialacts under the Convention and
the basis for variousentitlements under the Staff Regulationsand Rules.
The immunity of an officialfrom legal processin respect of acts performed in his
officialcapacity (i.e.on behalf ofthe United Nations) mustbe distinguishedfrom service-
related benefits under theStaff Regulations and Rulessuch as compensationfor injuries
attributable to United Nations service or travel entitlementsfor service-relatedtrips in-
cludinghome leave travel.An injurymay be compensable asservice-relatedunder Appen-
dix D to the StaffRuleswithout having been incurred by thestaff memberacting in his
officialcapacity; the fact that a staff member'stravel expensesare paid by the United
Nations does not render his journey or his actions on the journey "official actions".
Drivingis, of course, officialaction by United Nationschauffeurs and such staffmembers
may engagethe UnitedNations' liabilityas wellas their own,and hence theyare covered
by the United Nations automobileliabilityinsurance.Their (andthe United Nations')im-
munity is frequently waived for the puvose of litigating damages, butthe practice with
respectto their immunityfrom chargesof traffic violationishighlyflexible.
.....'.) .. As far as the General Assemblyis concerned,one of its very first actionsin the field
of privilegesand immunitieswas directed towardsthe preventionof abuse of privileges
and immunities in connectionwith traffic accidents. Resolution 22 (I) E.instructed the
Secretary-General t3 ensure that staff members be properly insured againstthird-party
risks,an instructionwhichfindsits implementationin StaffRule 112.4.
The functional and non-personal nature of the privileges andimmunities ofUnited
Nations officialsis made clear by the language of the Convention onthe Privilegesand
Immunities of the United Nations and Staff Regulation 1.81°3.The Secretary-General's
position with respectto suggestionsof immunity,has always beenthat he and he alone
may decide whatconstitutesan officialact, when toinvokeimmunity and whento waive
immunity.
There is no precise definition of the expressions"officialcapacity","officialduties",
or "officialbusiness".These are functional expressionsand must berelatedto a particular
context. Indeed, it is doubtful whether a definition would be desirable sinceit would not
103Reading as follows:
"The immunitiesand privileges attachedtotheUnited Nations byvirtueofArticle 105
of theCharterareconferred in theinterestsoftheOrganizationT .heseprivilegesandimmu-
nities,furnishno excuseto the staEmemberswhoenjoythemfor non-performance of their
private obfigationsor failure to observelaws andpolice regulationsI.n any case, where
Secretary-Generalwand, ith whomalone it reststo decidewhethertheyimmediateshall be waived." the---....-.
bc in the intcrest of thc Organizationto bc bouncibdefinitiowhich may fail ttake
into account thc manyandvaricdactivitiof Unitcd Nations oficials.
The practical handling of this question at ~ead~uarters~has not given riseto any
difficulties,probably becauseof the firm positiontaken by the Secretary-Generalfrom the
very beginning.Staffmembersare expectedto obey local lawsand regulations andas the
Secretary-General stated in a 1949 press release:"If there is any infringement of any S
laws, traffic violationsfor example, a Secretariat member is in the same grounless !
on officialbusines- as the average citizenwho may pass a red ligh... He just pays
hisfine,and manyalreadyhave".
12December 1977
B. Legalopinions. ofthe secretariatofintergovernmental
organizations related to the United Nations
CONVENTIONS
The following memoranda, dealingwith the interpretation of international labour ,
Conventions,were drawnup by the InternationalLabour Officeat the request of Govern-
(a) Memorandum on the Tripartite Consultation (International Labour Standards)
Convention, 1976 (No. 144),drawn up at the request of the Government of Sweden,28
October 1977. Document GB.206/13/3; 206th Session of the Governing Body, May-
June 1978.
(b) Memorandum on the Human ResourcesDevelopment Convention, 1975 (No.
142),drawn up at the requestof the Governmentof the Federal Republicof Gegany, 31
March 1978. Document GB.206/ 13/3; 206th Sessionof the Governing Body, May-June
STITUTION OF THE INTERNATIONL AALBOUORRGANISATIO FRNOM ANY STATE MEM-
BER INTENDiNG TO WITHDRIW FRO31 THE ORGAS~SATI OX QUESTIO SHETHER
AN EXTENSION OF THE NOTICE IS LEGALLY PERMISSIBLE
Opinionof the Legal Adviserof the ZnternationalLaborir Ofice.
1. Article 1, paragraph 5 of the Constitutionof the ILO provides as foIlowsi'
"5. No Member ofthe InternationalLabour Organisation may withdraw from
248 . .
UNDERTHE INTERNATIONALINSTRUMENTSINFORCETOINDEPENDENTLY DETERMINE, INCASE
A STAFF MEMBERIS BEING SUBJECTE TO LEGALPROCESS,WHETHER AN OFFICIAL ACT IS
INVOLVED - MEANIN GFTHE TERM"OFFICER" IN THE CONVENTIO ONNTHE PRIVILEGES
AND IMMUNITI ESTHE UNITED NATION SNDOF THE SPECIALIZA EDGENCIES
Statement madb ey theLegal Counsea lt rhe59thmeetingof theFifrhCommitteeofthe
GeneralAssemblyon1December 1981
.I. The LegalCounsel,referringto the'reportof the Secretary-General on respetr the
privilegesandimmunities of officials he UnitedNations andthespecialized agencie(AIC.51
36/31),saidhe would1ike.tothank the membero sftheCommitteeforthe expressions ofoncern
regarding respectfor the privilegesand immunitiesof international officialasnd the affirmation
that the intematioinstrumentsdealingwiththe status,privilesndimmunitiesof suchofficials
must be strictly respectedin order to ensure theindependenceandintegrityof the international
civil service.The increasein membership inintemationalorganizationsand the 'corresponding
increaseinthe numberof Stateswhichwerehoststointemationalorganizationandtheirsubsidiary
.:i" bodies gave added importanc te the questionof immunities.Conditions in one duty station
..,.. had animpacton all the staffof the international organizats,hereverthey mightserve, and
directly affected e orale andefficiencyof the internationaclivilservice.
2. The lawof intemationalimmunities,whichwasbasedprincipallyon theUnitedNations
Charter, the Conventions onthe Privilegesand Immunitiesof the United Nationsand of the
Specialized Agencieasnd other instrumentsreferredto in paragraph3 of the Secretary-General's
report, distinguished between diplomatind functionalimmunities.The very great majorityof
officialsof the United Nations and specializagencieswere accordedfunctional rather than
diplomatic immunitiesT. hatdistinctionwas significant fromthepointof viewof the scope
andcontentof the immunityandbecauseof thefundamentally different charactrf the twotypes
of immunity.While diplomatic immunity attachedto the person,the functional immunity of
international officis asorganizational.Thus,sectionof the Conventionon the Privilegesd
Immunitiesof the United Nations provided th"trivileges aimmunitiesaregranted to officials
of theUnitedNationsin the interests ofthe United Natisnd not for the personal benfift the
individuals themselves". nidentical provisiwascontained in the ConventionthePrivileges
and Immunitiesof the Specialized Agencies.
3. That distinction was essentiatlo an understandof thenatureof the violationof im-
.
.... munities reporteby the Secretary-General idocumentAIC.5136131 T.he various cases referred
to in the report involved a breach otfhe organizatiorights. For example, wherveiolations
involving immunity from legal processthetypeofcasemostfrequentlycited- wereconcerned,
thesubstance oftheSecretary-General's proteisntsuchcases wasnotthata particularf ember
had been subjectedto legal processbutthathehadbeenpreventedfromexercisinghisrightunder
the international instrumentsorceto independentlydeterminwehetheror not an officlct had
been involved. Where a determinatiwonas madethatno official actwasinvolved,the Secretary-
Generalhad, by thetermsof the Convention onPrivileges anImmunities oftheUnitedNations,
boththeright and thedutyto waive the immunitoyfanyofficial.
1 4. AstheSecretary-General statein hisreport,Member Statehadon the wholerespected
i the'Organization's rightto functional protect, hichhadbeehclearlyenunciatedby the Inter-
I national Courtof Justicein its advisory opinof 1949in theBernad~tte~caseand whichnow
formedpartof generally accepted internatial .Itwas nottheintentoftheprovisionsregarding
I immunity fromlegalprocessor the principleof functionalprotectionto place officialsabove the I
.I law buttoensure,before any action was takeangainstthem, thatnoofficialact was involved and . ...
that no interest of the Organization was prejudiced.
5. A second question concernew dhowasentitledto privilegesandimmunities.It had been
suggestedbysomedelegations that locally recruitaffmemberswerenot officials of the United
h'alio~~asndspc.cinlialgenciesfor thepurposeof privileges andimnluniliesandlhnttheywere
161 I
firstand foremostnation;~lsr thc countryconccrncdand, as such. were subjcctto its laws. On
!!::;.$\in!hc tv,,111[ikctn clarify tlnlcnning of thc tcrnl "oflicinls" as it was uscd in the I
Conventions.Sectioft17ofi\)cCorivcnlionon[hr:I'rivlirtgcitflIlllllllllii01tllil'ilii;s.!'i.'i'
statedthatthe Secretary-Generawl ouldspecify the categoriesf officialsto whicharticles\.'and i
VII of the Conventionshouldapply. The Convention onthe Privileges andImmunitiesof the
SpecializedAgenciesandthe IAEAAgreemcntcontainedsimilarprovisions.In 1946, the General
Assembly had adopted resolutio 76 (I),in which it hadapprovedthe grantingof the privileges
andimmunities referred toinaniclesVandVIIof the Convention onthe Privilegesand Immunities
of the UnitedNationsto all membersof the staff of the UnitedNations, with theexceptionof
those who wererecruitedlocallyand were assigned to hourlry ates. The specializedagenci'esand
IAEAhad taken similaractions. Consequently, as lltaffmembers regardlessof rank, nationality
or place ofrecruitment,whetherProfessionalor GeneralService, were consideredas officialsof
!
the organizationsfor thepurposesof privileges andiinmunitiesexcept for those who wereboth
locally recruitedandemployedat hourly rates. United Nationlscally recruitedstaffsuchs clerks,
secretariesand driverwere innearly every casepaidaccordingto establishedsalaryor wa,ae scales
andnotathourly ratesand theywere,therefore,covered bythetermsof GeneralAssembly resolution
76 (1).
6. With regard tothediscrepancy which existed betwee tne regime applicableat United . --
Nations HeadquarterisnNewYorkand thatwhichwasapplicableinvirtually allotherdutystations,
includingthe headquarters seats in Geneva, Nairobi, Viea nnathe seatsof the regional economic . --.
commissions,it wasperfectlytrue, asone delegation had pointeodut, that in NewYorkthe range .--- -.
... ...,- ..,. of staff membersto whomdiplomatic privilegeasndimmunitieswere accordedwasnarrowerthan
the rangein otherduty stations.The morerestrictiverigime, which was patterned exclusively on
--.-.-...
the provisionsof the Conventionson.Privilegesand Immunitiesadopted in 1946and 1947.had . --
ken madeapplicableat United Nations Headquarter is New York at a time when ithad been -
anticip~tedthat the staffof the United Nations would be largeclyncentratedin New York and a
moreliberal rigime wouldhave resultedin very largenumbersof staff members being assimilated
to diplomaticpersonnel.Althoughthatdiscrepancyintreatmentwasundesirable anditwouldhave
been preferableto obtain equalityof treatmentfor staffmembersregardlessof their duty station, .
it shouldbe noted thatinabsolutetermsthe number of stafm f embers havingdiplomatic privileges
and immunitiesin New Yorkandthe othermajordutystationswas roughlycomparable.
19. LEGAL PROVISIONSGOVERNINGTHE QUESTIONOF IMPORTATIONOF HOUSEHOLDEFFECTSASD
AUTO~~OBILESOF UNITED NATION OSFFICIALSASSIGNEDTO A REClONAL ECONOMICCOhISlIS-
SION - QUESTIO ~VHETHERFIELDSERVICEOFFICERSARE OFFICIALS WITHIN THE MEANISG
OF THE CONVENTIO ONHTHE PRIVILEG E SD IMMUNITIE O F THEUNITED NATIOSS ASD
OFTHERELEVAST HEADQUARTA ERRSEEME NTMEAKIY GF THE TERM"FURN~URE ASD
EFFECTS "NDERTHE ABOVE-MENTIONED INSTRUhlENTS
' -2'*1 Noteverbaleto the PermanenR tepresentativeof a MemberState
..:-, I . . The Legal Counselof the UnitedNations presents hic somplimentsto the PermanentRepre-
sentative of[nameof a MemberState) to the United Nationasnd has the honourto refer to the
anedto the Economic
status,privileges and immunitieofUnitedNations FieldServiceOfficersassi,
and SociaICommissionforAsiaand thePacific in BangkokB . y letters dated20 November 1980
Qnd20 January 1981theDirector ofthe Officeof !he Legal Counsel broughtto the attentionof
thePermanentRepresentativecertain problems encoonteredby Field Servicepersonnel regarding.
in particular,the importationof theirhousehold effecincludingautomobiles.The Legal Counsel
is dismayedto learnthatdespitetheseearIierinterventionsthese problemshave notbeenresolved
and that discussionsbetweenthe ESCAP Secretariat antdhe Ministry of Foreign Affairs have
reached an impasse. The Legal Counsel wishes, therefotroe,take the opportunity,to set out
comprehensivelythelegalissuesin.thehope that theauthoritiesconcernedwillbe able toresolve
162 Justicc?,::oincGeneral'sOffice)to appcnorotherwiseto movethe courtto dismiss the suit
on the groundof theOrganization'sinununities.Whentheplaintiffis a staff memberor a former
staff member, the Organization will illormtheMinistryofthe internalrecourseprocedures
availableunderthe Organization'sStaffRegulationsand Roles.
B. Actionsin\alvingganlislrment r attaci~toftsalariesof stuffmembers
4. In theexecutionofajudgementagainsta staff memforadebtowedbythestaffmember,
attemptsare sometimes madeto requiree.0rganizationto paya part.of the salary of thestaff
membertothecreditor. ThepolicyoftheOrganizationisthat suchaproceeding,whichis sometimes
referred toas garnishmentor attachmentof salary, is nullandvoidas far asthe Organizationis
concerned. Servicof a garnishmentor attachmentorderupontheOrganizationis a formof legal
processfrom whichthe Organizationis immune byvirtueof section2 of theConvention on the
PrivilegesandImmunitiesoftheUnitedNations.Inaddition, the proceeds ouldbe tantamount
to a seizureofassetsof the Organizfrom whichtheUnitedNations isexemptunder section3
of theConvention;thisis sobecauseanysalary to beseized, beforeit is actuallypaid to thestaff
member, forms parotf the assetsof the Organization.
5. However, since the Organization's immunffordnojustificationfor a staff member's
failureto meethisor her legalobligations,the United livesupto itsobligations under the
Conventionbytakingmeasurestopreventimmunityfromlegalprocess fromdefeating creditors'
rights. The Organizat, erefore,returnsgarnishmentordersto thecreditorortothe courtoffice
withanexplanatiofthe Organization'smunityanditspolicyconcerningprivatleegalobligations
of staff member. hestaffmemberis requested,usuallyby the Office of PersonnelServices, to
settlethematterinsuchaway,eitherbypaymentorbyfurthercourt acasto avoidembarrassment
to theUnitedNations. Should theffemberdisclaimthedebtor intendtoappealthejudgement,
he or sheis required,as a matterof proper conduct,to takewhateverlegalstepsare necessary
-- to delayanydirect actions-&vishisor her salary. TheOrganizationtriestoavoidinvolvement
1 in the questionofthevalidityof courtjudgements concerning stafifn their unofficial capacityI.t
isagainst establishepdolicyto authorizedefromregularsalarychecks fordebtstojudgement
creditors;however,deductionsfrom finalsalaryor otherterminal paymenoa staff member
uponseparationmaybe madein favourofjudgement creditorsuponsatisfactoryevidencebeing
presented.
/i
IIIPOLICYOF THEORGANIZATION ASREGARDSDEMANDS FORINFORMATION ABOUT STAFF MEMBERS
I
6. It is not the policyaf the Organizatiorito respondto demandsfor personal information
concerningstaffmembers. However, terganizationwillnfi thata staff memberisemployed
by it and, to the extentthattheinformationrequestedis in thepublic domain,theparty requesting
the informationmaybe referredto a particular source,suchas the Staff Regulations and Rules.
I In someinstancesthe informationrequestedis formallymadeavailable tothe staff member and
therequesting paris notified thereofsothat it canmakeappropriatedemandsthereforfrom that
1;
person.
53. POTENTIA CLIVILAND CRIMINALLlABILl'TYOF MEMBERSOF THESECURIT YND SAFETY
SERVICE-APPLICABI LFTTYDERAL,STATE AND LOCAL LAW WITHINTHE HEADQUARTERS
!j DISTRI=-IMMUNI TYUNITEN DATION OSFFICIALFROMLEGAL PROCESSIN RESPEC OF ACTS
PERFORMED BYTHEMINTHEIR OFFICIALCAPACrrY
Memorandum to theAssistantSecretary-GeneralforGeneralServices
il
I. Iwish toreferto yourmemorandumof 18January1983on thepotentialcivilandcriminal
liabilityof membersof the SecurityandSafetyService.Asyour memorandumof the samedate
tothe concerned staff membersstates,eirquest foradviceontheapplicabilityof the PenalLawI-.
..
? . andthe Codeof CriminalProcedureof Nca York Stateand their relationto the Headquarters
I .: Agreementisrcdur.d:tntsincethcsubject-martwasmoaL carefullreviewer! in 19nt the time
~KentheHandbookfor Personnelof the Securityand SafetyServicewasrevised.For the benefit
of thestaffconcerned,however,the following further clarificasaybe useful.
I 2. As ageneralN~C,federal,stateand locallawapplieswithintheHeadsuartersDistrict.The
Handbookreflects thisgeneral ruleby incorporatingthdappropriatestandards andnorms oflocal !I
I law.Theexception whichis providedfor in section 8oftheHeadquarters Agreementt,he power
to makeregulationsoperativewithinthe Headquarters Distr, asbeentiliye-=-----'.v- --v -.
three such regulatisavebeenadopted: regulationNo. 1which dealswith,.- -....,..-..-..-
I-- Social SecuriSystem;regulationNo. 2 whichrelatestoaualifications for~rofessionalor other
specialoccup~tionalerviceswiththe United Nations;andaregulationN3'whichconcernsthe
operationof services withinthe HeadquartersDistrict.
3. Ofmorerelevancetothe potential civialnd criminalliabilityofthemembersofthety
and SafetyServiceis the questionof immunity fromlegalprocess.Undersection 18 (a) of the
! ConventiononthePrivilegesandImmunitiesof theUnitedNations,towhichthe UnitedStates is
a party,officialsof theted Nationsshall beimmunefromleg&process"in respectof words
spokenor written andall actsperformedby them in thofficialcapacity".The UnitedNations
hasconsistentlymaintained thatit is exclusivelywithinthecompetenceof the Secretary-General
to determinewhenan act is carriedout in a- o-ficialc,-ac--van--------- ----- -which I
is subjectto reviewby the localauthorities(see, for example,the letterdated11February 1976
fromthe Legal Counsealddressed to the PermanentRepresentavfetheUnitedStatesofAmerica
C to theUnitedNations,commenting on a decisiorendered inthe CriminalCourtof the Citv of
NewYorkinthecase.ofPeopleofihe StateofNewYorkv. MarkS. Weiner?.Thepotentialcivil ,.,
or criminal liabilityof members ofthe Securityand SafetyServicefor acts ca--.tn th. I .--L.I
-- performanceof theirduties isno different fromthatof anyotherstaffmemberfallingwithin the,
purviewof section18(a)of theConvention,thatis to say-thatstaffarepfacie &une from
legal processin respect of suchacts, suchimmunity,however,beingsubjecta waiverby the
:. . Secretary-Generailn anv casewherethe immunitvwouldimaedethecourseof iusticeand can be --
I !I
I shouldbe notedthatundersecti29nfb)oftheConventinntheIJniterlNatin.r- -- - ---- --ion)1h
- - --- ------- ,-,----- -.-- ..---.-shallmakeprovisions
by reasonof his official positionenjoys immunity,if immunihasinot been waivedby thewho
Secretary-General. '1
5 April 1983
54. ESTABLISHM
NNAMEMBES RTATEOF A PARALLELEXCHANGE RATE PROVIDIN FGR A MORE
FAVOURABLE RATE OFEXCHANGE FORTHE UNITES DTATE SOLLARTHAS THE OFFICIALRATE-
I QUESTIO WHETHERTHE ORGANIZATIO ONTSHEUNITED NATION SYSTEM AREENTITLED TO
THEBENEFITSOF THEBEST PREVAILIN RAGTEOF EXCHANGE
Mernorandwn to the Deputy Administrato, nitedNarionsDevelopmenPt rogramme
1. On 10January1983the Governmentof [nameof a MemberState]established aparallel
exchange ratewhichprovidedfor a more favourable rofexchangefortheUnitedStates dollar
thantheofficialrate.Thequestionhasbeenraisedwhether theorganizatioftheUnited Nations
systemareentitledtothebenefitsofthebestprevailingrateofexchangewhichislegallyobtainable
or whethertheymustbe restrictedto the official rateof exchange. 1 1
is thatintern&onaldrganiiationsare entitledto thebenefitsif the mostfavourablelegal rate of
I( exchange.This principle, whiensuresthatanybenefitarisingfromtheexistenceof differential , TION ON THE PRIVILEGEASD ,IMMUNITI ESTHE UNITED NATIONS-SYSTEM OF
LAW BYWHICHTHE QUESTIONOF UNRWA's IMMUNITY FROM JURISDICTIONIS TBE
JUDGED-NATUR EF THE IMMUNITY UNDER THAT SYSTEMOF LAW
MemorandlrmtotheLegalAdviser, UnitNations Reliefand J%rhAgency
lorPalestinRejugceintheNearEast
Fortunately, thereisano, ell-establsystem oflawbywhichthismattermaybe
judged,.namely,thepublicinternationallawgoverningthestatus,privilegesand immunities
ofinternationalorganizat. he formalsourcesofthe system oflawaretobefound'inthe
relevant constitutiveinstruments(otfheUnitedNationsandand multilateraland
bilateral agreementsto whichthe MemberStatein question is a partyan8 by whichit is,dvil
therefore,legallybound(interalia,the Conventionon the Privilegesand Immunitie'softheN
United Nationsz9).It canbepointedout in connection withthe above-mentioned Conven-
tion that MemberStatesobligatethemselvestobein a positionundertheirown lawstogive invo
effecttothe Convention. i hire(
A wordaboutthenatureofinternational organizationimmunitymight alsobeusefulin UNI
orderto headoffanyargumentsbythe companyin questionbasedonrestrictiveimmunity. driv'
The immunity accordedinternational organisnder this systemoflaw isan absolute erty
immunityand mustbedistinguishedfromsovereignimmunitywhichinsomecontemporary I
manifestations,at least,ismorerestrictivinternational immunities maybe and,in
somecases,mustbe waived,uchwaiversmustbeexpress.Nosuchwaiverhas everbeenexe-
cuted in this case. cou:
Where proceedingsarebrought by aparty inthe face ofsuch absoluteimmunity, this con
saryto establish thatthe partybringingthe actionhas actedunreasonably, Sincethe lawto t
internationalimmunitymakes specificprovisionfsorthe settlementofdisputesofa privateNat
nature, a party whichneverthelessproceeds againstan international organizationin the
I . .
Sinceinternationalorganizationsarerecognizedentitiesin internationallaw,courts are .
requiredto recognizetheir immunities.Itisnot necessaryforinternational organizationsto
theimmunitiestowhichtheyareentitledsincesuchimmunityexistsasa matter oflaw
and isa factof whichjudicialnoticemustbetaken.In practice,a suggestionof immunity is
normallymadetoa courtonbehalfofaninternationalorganizationbythecompetent execu-
tiveauthoritiesofthe Statesconcerned.Itgoeswithout sayingthat in such casesthe interna-
tionalorganizationis not submittingto thejurisdiction ofthe court.
Inthe statementofthe issuesoflawandfact,theArbitratorraisesthe question whether
thegoodswereimmunefromarrestinthecourtsoftheStateconcerned.Assumingthat itcan
beshownthatattherelevanttimethegoodswerethepropertyofUNRWA(aboutwhichthere
seemsto be no doubt),itisclearthattheproceedingstakenby the company inquestion and
thedecisionsof thelocalcourt werein violationofand contraryto sections2 and 3 ofthe
ConventiononthePrivilegesandImmunities oftheUnitedNationswhichprovideimmunity
fromlegalprocessand from anyinterference;whetherbyexecutive,administrative, judicial
orlegislativeaction.
Itrustthatthesecommentsandadvicewillbeofassistancetoyouinyourresponsetothe
Arbitrator'sletter.
28 February 1984
3al issue is
someother
IAN PERSON-
NEL HIRED BYTHE CONTINGENT OF A MEMBER STATE
MemorandumtotheDirector,OficeofFieldOperational
in the event of an accident
imsbytheirdrivers.Ifsuch confirmationis forthcoming, we
a legalnatureasfar asinsuranceisconcerned.
189 tiveof(nameofMemberState)to theUnitedEationsandhasthe honour to rothe 1985Financc
Law, articles37and57of~hich.s\ipufinferoliothatnllemployeesofinternationalorganizations
\vl~arcofthenntion?lioftheMemberStatemustpayone twelfthoftheirannualsalaryand20per
centof theirindemnitasaspeciicorltributiii135.i.
TheLegalCounselwishesto drawtheattentionofthe PermanentRepresentatethefollow-
ing:Bydecisionofthe GeneralAssemblyinresolut76(I)of7December1946.a11staffmenibers
oftheUnitedNations,regardlessofnational, laceofrecruitmentor rank, are oflsithinthe
meaningofsection17oftheConvention onthePrivilegesandImmunitiesoftheUnited Natiand
enjoyexemption from taxationthesalariesandemolumentspaidtothem bytheUnited Nations
pursuanttosection18(b)oftheConvention,towhichtheStateconcernedacceon27April1962.
Consequently.intheviewoftheUnited Nationst,h1985FinanceLawisnotapplicableto United
Nationsstaffmembersofthenationaliofthat State.
TheLegal Counselalsowishes to tthisopportunitopoint out thaatrtIX,paragraphI.
of theUnitedNationsDevelopmenPt rogrammeStandard BasicssistanceAgreement,towhichthe
Stateconcernedis a party, alsomakesapplicableto theUnited Naand its organs,including
UNDPand subsidiaryorgansofthe UnitedNationsactingasUNDPExecutingAgencies,andtotheir
officials,theprovisions otfheConvention.
The Legal Counselwouldbe gratefulif theforegoingviewsof theUnited Nationscouldbe
brought tothe attentionofthe appropauthoritieswitha viewtoensuringthenon-applicofion
the1985Finance Law toofficialsofthe United Nations.
19March1985
TRARlCACCIDENT INVOLVA INEMPLOYE EFACOMPAN YHICHISASLIBCONTRACT TOR'lHE
24.
UNTIED NATIONS DEVELOPMEN PROGRAMME--QUOFFICIABLUSWS AT'THPETIMENOFTHE ACCI-
COULD BEREGARDEA DS HAVINBGEEIE' GAGED
DENT
Lettertothe PermanentepresentatiefaMemberState
totheUnitedNations
I wish toreferto ourmeeting of16May1985,atwhichwediscussedanaccident involanng
employeeofacompanywhichisasubcontractotroUNDPlOfficeforProjectExecution (OPEY).ou
indicatedthat, while your.authdsonotquestiontheapplicabilityof theIStandard Basic
AssistanceAgreement(SBAA)(andthroughtheSBAAthe Conventioo nnthePriviIegesandImmu-
nitiesofthe UnitedNations)tothiscase,somequestionseeen raisastowhether theperson in
questioncouldberegardedashavingbeenengagedinofficialbusistthe timeofthe accident.
Inresponse yourrequestforclarificaonthispointwearepleased toconfirmthefollowing:
TheUnitedKations(andUNDP)asamatteroflawandpracticetaketheviewthatanyactwhichisper-
formedbyofficials,experts,consultantsor,inseof UNDP" ,personsperformingservices"for
UNDPwithin the.meaningofarticleIXoftheUNDPJSBAA whichisdirectlyrelatothemissionor
project,such asdrivingto,andfromaprojectsite,wouldconstituteprimafacieanofficialactwithin
the meaningof section 1(ojof the Convention on PrivilegesandImmunitiesoFthe United
Nations.Travel toandfromaprojectsitenecessformspaof theworkofthepersonsengagedin
Eheproject.Intheparticularcaseofthe pconcerned,the fact tewasdrivingaprojectvehicle
at thetimeoftheaccidentwouldbeanadditionalindication thatprimafaciehewasperformingan
officialact. Subsequenttoourmeeting.werequestedinformationfromUNDPregartrafficcci-'
dentsinvolvingitsofficialvehicAfricawithinthelastfewmonthsand whichtheOrganizatior,
hasfollowedthepractice outlinedabS.inceDecember1984threeaccidentshaveoccurred.Intwo.
ofthosecasestheaccidentsoccurred whilteheofficialconcernedwasdrivingtoorfromaprojectsite.
whileinthethirdcasetheaccidentoccurwhiletheofficialwasdrivingfromtheUNDPofficeto the
local airlineofficetoeforhomeleave travel.
Wealsowishtotakethisopportunitytounderlinethat,whiletheSecretary-Generaallonedeter-
!:i
:.Ii?'i: !..
.. --------
25. TfUDECOS'T'RO RLEGULATIOH ISSUEDINA HOSTSTATE-APPLICABILITO YFTHERECULATlONS
TOTHESHIPMENO TFFURKTTL'& RXIPERSOSMEFFECTT SOME HOUECOUhTRY BYAfESlBEROSF
A PERMAXX M ~TISS 0OTHE UX~DNATIONS-ARTI3 C1OEFTHEVIE~W CO~TE~TIOO NN
DIPLoar.~ncRELATIOXS
NoreverbalerothePermanertt epresenmtiveofaMemberSfafe
toriteLr~litdariorls
.. lawaswell asbythelanguageofthedomesticregulations.
--.- Under articl31 of the ViennaConventionon DiplomaticRelationsof 1961.'6a diplomatic
agentenjoysimmunityfromthecivil andadministrativejurisdictionofthe receivingStateexceptin
thecaseof(a)arealaction,(b)anactionrelatingtosuccessi(c)anactionrelating toanyprofes-
. , sionalor commercialactivity exercised by the diplocentoutsidehis officialfunctions.The --.---_-_ .__-_ ._ ...
shipmentofa diplomaticagent'sfurnitureandpersonaleffectscformspartofhis officialfunc- --__-
tionsandwould,therefore,beimmunefromthecivilandadministrativejurisdiofthehostState,
includingtheregulationsinquestion.Furthermore,theregulationsIhemseIveswouldseemtobearout
thatit was not theintentionof the executivedepartment,to whichthe Presidentgatedhis
authorityin thisrespect.toprevent theshipmentoffurnitureandpersonal effectsbydiplomaticand
officialpersonneloftheMemberStateinquestionemployedbythediplomaticmissionsofthatState
oritsmissionstojnternationalorganizations locatedinthe hostState.Anappropriatesectionofthe
regulations.forcxample,expressly authorizescertainimportsfordiporofficialpersonnela,s
follows:
"All uansactionsordinarilyincit the importationofanygoodsorservicesintothe[nameof
the hostState]from [nameofMemberState]areauthorizedifsuchimportsaredestinedforoffi-
cial orpersonal usebypersonnel employedbydiplomaticmissions[ofthis State]or [its] mis-
sionstointernationalorganizationslocatedhostState,andsuchimporarenotforresale."
Althoughnoequivalentexportprovision appestheregulations,the logical implinftheo
sectioninquestion isthat theexportationoffurnitureand personaleffectslawfullyimportedshallbe
permitted. i/
In1%Iigl~ofihcforrgoinzd~eLcglrCounscl\vo'~lbcmostgmteful ithe PermanenRt eprz- i
sent;~tefinarneof[hehostSiise10theUnited Natiocouldiniervenewiththeappropriateauthor-
/
IGovernment inlends LO huilcjur itscuiiii!lii~iic~ii,ihc Ciiiicct Nations
and UNICEF contained both in the Agreement it entered into with
UNICEF in 1978and in the 1946 Convention on the Privileges and
3!9Immunitiesofthe UnitedNations." Theattentionof the Ministry should ..-
bc drawnin particularto the followingprovisionsof articlc I1of the1946 -.--.. ...-. ... . .
I
!
authoritiesto investigate an incidenitnwhichshe wasoneof the unfortu-
nate victims. \ TllEVOl.l.:N.IIENDEKTtlE Uxl)!'S~ANDAR D.4Sl(E\SSIST.~\NA(:EREE-
hlth-AX[) TI.(1940 CON\/F.V''~\0% TIIE PRIVILEGF AND I~~XIIINITIES
OF TIIEGSITED NK~IONS 1
Mivnort~ndum lo ~hcScnior PolicyOficcr (Lexal),Ditbiotl oj lJcr.sorrtiel,
UnitedNu!ion.sD~~v~'lvprnP~r~framnre
1. This is in rcply to yournlcmorandumof 7 January1902 in whicha
waiver of irnmunityhas hccn rcquestcdin connectionwith the motor vehicle
accidcntinvolvinga Unitcd Nationsvoluntcerwhich occurrcd onh May1901
whilchcwasdrivinga Governnlcnl-ownedvchiclcfromworkto hishomc.Thc
RcsidcntRcprescntativchas statedthat thc voluntccr,pcrformingserviccson
behalfof UNDPin(nameof aMcmberState),was"on dutystation" attllctimc
the accidcnt occurrcd.
2. The legal statusof United NationVoluntcen,in thccontext of theac-
tivitiesof UNDPin thc State in question,is governcdhy thc UNDPStanndard
BasicAssistanceAgreement(SBAA)signedwiththeStatein question on 5No-
vcmhcr 1W0. Underarticle IX, paragraph4(u),of thisAgrccmcnt,"the Gov-
ernmentshall.grantall pcrsonsotherthanGovcrnmcnt nationalsemployedlo-
cally,performingscrviccson behalfof the UNDP, ...thc samcprivileges and
immuniticsas officialsof thc UnitcdNations". Inaccordancewith articIX,
paragraph 5,of thcAgrcemcnt,thc cxprcssion"pcrsons pcrformingscrviccs"
includesvolunteers.Accordingly,the personin question, avoluntcerassigncd
to scrvc with UNDPin thc country inquestion,enjoys the privilcgcsand im-
muniticsgrantcdtoUnitcdNationsofficialsas providcdfor in articlcV,scction
18,of the1946Convelltionon the Privilegesand immuniticsof thcUnitedNa-
tions,"" and not thoscinherentto diplomaticenvoys as ir;dicatcdin hislcttcr
datcd3 Dccembcr1991.
3. Ul~dca rrticV, section20,of theabove-mentionedConvention,Privi-
lcges andimmunitiesare grantedto officialsin the intcrestsof the UnitedNa-
tions and notfor the personalbenefitof the individualsthemselve.".Ac-
cordingly,privilegcsand immunitics of UnitNationsofficialsare essentially
linkcd to officialacts thcy performon behalfof the Organizationand assuch
are functionnl.
4. As ageneral rule,trdvclbetweenhomcand ofice is not initselfcon-
sidercd to be anoFiicia!act withinthc meaningof articlc V,section 18,of the
Convention.Thcreforc, officialswho committrafficviolations in transit be-
tween theirhomeand the officeand vicc vcrsa are not consideredto be pcr-
formingan officialact for whichtheycan assert immunity fromlcgal~roce$+."
The positiontakenby the UnitedNationsin this connectionhasbeenpublished
as a lcgelopinioninthe Unifed.NalioJuridical Yearbook.'""n anycvcnt,as
a mutterofgoodconduct, theUnitedNationsexpectsitsstaff'mcmhcrs,regdrd-
less of rank andstatus,to observelocallawsand rcgulations.
5, Howcver,theremaybcexccptionsto thcabove-mentionccg icncralrule
in thc light of particular circumstances, and in such a casc, the Sccretar..
Gcncral wouldconsider raisingthequestionof functionalimmunityif thepar-
ticular factssurroundingthe incident wouldwarrant it. Thercforc,,in ordcr to
enable the Secretary-Generdlto takca dccisionregarding apossible waiver of
immunity, it necessaryto clarify whether the Unidationsofficialinvolved
in a givenmattei-wasactingin anofficialcapacityor not.This determinationis
482 Mr. Pzdaajik Sin&, Cnief
Personnzl Services Section
Pea C. Szasz, FrinciprZ Officer '.
Ofiice of %be Leg& Counsel . I
I
.' . i
.... -.Perz;........s.,,*--...n.--....*?. ...=.--.............u1r,2..l-.r'...=.--...:-.--...-....-..-- .:-:2L.L:.:.:"=--j.lp'~2t -.
c- ,)-- . . . . ....... ......
......... -._._____ .._.-___. _ _ ,_-__._~"____.___.__ ....--.+ .--..-- --.--.----..----..! ,
...... Y$u =zao dzi;ed 15 :krck 3.982 eddxe'ssed to Mrs. .has been 'i
fo'f,...&v~ed '$o-*%.-ij--Of fice ,716 -&po16gii& pos"t~8-de~ay-5n -om .UTr ;e-.--u----:. ..
... --.whicy-is-csfif Cnne- b--.t;he---legd-is sues:sa$s -in- z;lenos-aum;-------- -..--...:-A .
Wnistretion n
2. P.s a nreli~n
o-at in both Eir.
Decaber .~976 ~~!~ti.'l-k.JI
of 10 Sspta>er 1979,
acquisitiop .or permas
zrofcssidgd. ce-teqa
lit ate -jeKq s.t;~o I
09 6uty ste.%ion o -.-..:
ir ei event, be coasic3ered an acestion to the genera rule-
i .
7 liith regard to the question rezseb in E. of your'a~recam, ' ' ' - ...
-, Stelf MPS 104.4[c) =.a, 104.7(c) aa ~n_fo~tion Circular ' ... . .
S~'/~FS/SE?.~/238 60 not deal vita erzctpf tie sane sub j ect 'ncttei , :
Vile Rule '104 ..(c ) ests%lsishes the genera 031igz.tion of atdf '
nz'bers to ~otify the 5ec&etsri-Generel df cay intent t0 &c@?re
ps-ent residence status Rule 10b.7(c) recites the co~sequ~~ces' ' ,.
of such change of s%z$us, the Circuler aa&essed the particulai ,
probl- =rising fro* &a stetus of ion-unite& Stetes steff
United Ste.%es. -:In ,@icular ,'.~T ../.APS/SES.A/~~? .- ..;.--:-\
I neabers serving in. the . .
I clarifies t:~a,-t 2 staff member wishing to retain 'pf!eeIit 'resiaesce - . --".
stetus in the United ~tetks iqre~uirea to erecute ii *i ..%.+ ,%+i ' .....;.:
02 priyilc@;es ~ii;c<!$~id.ieges '.inrruiqtids bi :
Ulit ed Xat ions : off icialn :attach ~ot.~to itne .iqdivid@-:b~$~.;, , h%
Orgeiqetion .&5 ow.. .the ~ec~ter~- ~..$-,x@ ;may' %.zi.ie-the:' wsity .....:wf...
o~ficzals 2:the ex...~i& .. ;of.:&&. e ...-.3vk+ irequires the bqress . .-:.. ..
,=a%hority :of '~~ecretery~~<ner~f;?j~~ ... .:%he S ecr&%~ry-Geberd- h~s
i the =&wori"ly to vrive -Mty, ec siu5ktority klnicb 'hes ;.not 'been .
1 &leg&e& .to.enyother the'Uzdted Betions 'I..? y,;>*.:i36 ii*d~h ..- .
be has not cielega.i;ed.:&o ::. .oxYiciz.l. : .' .... ..' . ...
ZE its Ju6gaeT;"u 30. 66 v. Socre%ez-rSenerLL .of :..the Udited
i JEtions ) the ~&n;n+ strztiye Prib~dl.. spE!~ific~Lx!.y ~~SCUSS~~ ,,,
Pir;~fim ad q-,h~ld the .secretey$-~erer~&' 3 ~uthori%y %O &?ZI;T. .X%S~O~
I . ......
Stir e ~szi~~r, i....:.-.........Li.%.+F....
..... ........:.-... ..-....:...=,..A,.!
.. ..... lo* ..'.........
... ... :.. ..-a
slth regad to th= eueseions in pa3 3, I believe %hat ~cott"~ ,
~ ? ~ r ~ ~ ~ 05 10 S.ept,a-e; 1979 szaiarizes the situation as cleaiu \ ,
possibl~, It ney ~oi be possible lo providea mre precise I
-~~~cy, >& the Olfics cf lcraom-el ~-&ces zq. he in e psLtion i
to e.0 so.
... .................. , .. ....... r...... . . + . .
ir,yith reya to the poizrbs.raised i$z$d-C of..your.?~cllorqam;.2.-.:..ue-..r-~~........-;.:~Yd..:I
.... ..- .--......
~?sa only to point .orrt that Svitzerland does-no% .re&re .l-sttxtf .- --..--.::-
- -.-zebb&s to exaclrte s weiver. of. ksdty .eqfi. tact., _t$r;re$org, .-&e--:..- ...: I=-.
...... quest ion oLeut20rization .by. $h~.-Seppt q--I),ege~~@-dces-qqt .*@ in ----..-.-.
the sane conteYt ag in Xev York. Staff Rules104.b(c) and 104-7(E), . .. ._;...
- .. .-of .-co~~e;-.~?>&-.md- -t$enewal.-aolicy-of -$heOrgenizetion -referre -.-:'_.. .- ...-..-.
- . ,to in iperi&rz~h -2. gbove is.egdUf. .nPp1&9.a% ltto,.++ ..utyfis.$-r......s.I.......2.:.::--.-::
...... ...-.............. ..._.__............_.. .. ..... --I. -..--..----.--....**,--:.....
.... ...?in-..--.j;-=&k&;+e?;.&d ....'if-$he'-.ii..e
.-to in i;sregre?b h of $-o>x x&mrul&, ...
ebove the SccretWf+ezmd. ..alone .-.
that +he w.5.ver 2n yais ..
. ., .. ....
.." '
In &ci&ing v?le%iner or oo-he sho.cii! be rm-uired to rehnqdsh his
resl8e~cc ~t~%us ECU this tihe, *fie follovingfctors shouldbe taken . I
fnto account: . . . ~ ..... ... ..... i
4. . I
i ) Fine generrl plicy of the Organizetion, ss .st~t.ted in peregr833 ...........
.. (e.) ..,i
. 2 &-io-,-e;* . ,, . . . . :.. ....'.......;. i
(b) klethk or not the xeiver of h71tiity %as p;-oprly authorized; !
(c) Ii properly authorized,are the circwtances that were taken . , ..:
ink nccom-b in grantingsuch'euthorization (e .E;. some specid. .,'
reason fornainteining closetic. .o .%heUni+ed . . States) stil......-.-. ........:'
releveat. ...... . i
- . . .
(a) .he thqe at ;resent cay specid. circmstmces for zcinteining -. .
residencestatus. ... ... ,
2 :
(e) Cen the stzif riierdber argue irhet be was 5p.w &y diisav+tagid !.
by he.&= been petted to &t&n his residence stet7is ell
these yee-s .-w25le noii being required .%o relinq~sh it (... ::. ,.:...;. -..[
+uld he he~e zde dif f erd .personal plas J .
...... . . :
(I) .fectthet mder .e...t.f.. &i%ed ......tates 3r~ end circl~s%a6ps .-.._.-.:.-.!..
the st& j:~-2,er mw ,;on.:se~;tn~t~oz;<fipd it wefy'=Sf ficatiLt to
regdin his residerit ste.txs --=&.so :ishould not be ~s$e"_ to -, ,
-r_nE~qu.i.~h5% ii he 25 close -to retirerrien-l. 2 Rpria 1984
1.b. 3Zhililppe aiblain
..)indpeL Legril LiaisonOfficcr,.~OG
........._...... -. ........-....... ...
John 3'. Smtt , -tor and DepUtJ to the - ....
r~nd~*ret~-Gen& in chsrge of the
..O~cc of Leg& AMaira
I
.. .-...... .,
7-.-. .... ..-..... .... ... . . . ...... . ..- . .:..
... ).. ~e-.-b.-msaei-ei.t;b-go .~r2V-~r; i9@ dI"I.P&-icem~'thi' &-';
-fir -=-me. -..------
.-.me -* &t@ .:..:
the stm ' ;. :
;Jn'.19n. --.........-
_I_................---- -..-- .-....--...--...:~-h-
;&&eidle ~nited.%~tioasl int-s%.%.+';+-,.
-.m="hbd&er -k&ind -hmni@- ,:.-P-
a.-e+re, SJnch the loan -.:*&;.
kt& sqibr, the uril:eea ~atio&.-e~+.;*;.-..
;i* @j&n~nt 'of &&n or bny& *.......::
. . .... ..... ...... : . . -... ' .T.......-.:>$'::
C. .. . . -- .... .
3. Arnvan fto section17 and'%- intc -mt ~&ioa 18 ofthe * -.
Agresw& .betuem the flnited Astiops am3 Mtrerl 6, .%be ScrcrcLarg-.
Gewral. has agreed %Q a dver of brudt;y of t.fr. :, ik berfng .; ..
~nderntood %ha% this waiver ertd sdL&y to actiooa erisin~iron the-- ......
peA&-.&ns -con+-+ -by =- and rafemd to in tw Lett& ..'.
I. i- zda- 22 February 6% oardm, it the* Mss &.-&.hodtia. . to ".:".
deib &&h-e ** --b.y-k -;
WM ip 1977 entit+& to th. clwk of dip10139tic wty &,.if 8o;
ub~t at*s should be falrm VlS-Lvfs the Cove** lntbat ....... Translatedfrom French
The Secretary-General
23 July 1984
Sir,
I have the honourto acknowledgereceiptof your letterof 12 April 1984,
which I received on 24 May 1984.
On 22 February 1984the Departmentof Justiceand Policein Geneva formally
requested thatimmunity from jurisdictionand executionshould be lifted in
respectof all the debts of Mr. [deleted]. In view of the facts, and taking
into account the provisionsof sections17 and 18 of the Interim Arrangement on
Privileges andImmunities ofthe United Nations,concluded betweenthe
Secretary-Generalof the United Nations and the SwissFederal Council in 1946, I
was obliged to lift theimmunityof Mr. [deletedlin order not toobstruct
justiceand to prevent immunityfrom being abused. At the same time, we
stipulated thatit was for the Swiss authoritiesto determinewhether theacts
committed byMr. [deleted]in his capacityas Ambassadorof Benin at Brussels in
1977 mightbe covered by an immunity basedon the diplomaticpositionheld by
Mr. Tevoedjreat the time. A diplomaticimmunityof that kind would not be
affectedby the lifting of the immunity whichMr. [deleted]held by virtueof
his United Nations post.
Before replyingto your letter, I asked our servicesin Geneva to informme
of the current state of affairs in Switzerland. According to the information
gathered,it seems that the lifting of immunity has hadno judicial consequences
to date; the creditor isno doubt aware of the state of health of Mr. [deleted].
' ! In closing, I wish to assure you, Sir, that despite the liftingof'
d immunity,the United Nations services inGeneva will continueto provide
assistanceto Mr. [deleted]and to his family so that this problem canbe
resolved.
Accept, Sir, the assurancesof my highest consideration.
I
I (Sisned) Javier Pgrez de Cugllar
His Excellency Mr. [deleted]
Ministerfor Foreign Affairs
and Cooperation
[deleted] P.!. PLincipal Legal Lia ison OfEicer
United Nations at Geneva ...
John F. Scott, Dir.ector and Deputy
to the under-~ecre6ary-~eneral .
Office 02 the Legal Counsel, OL4
) ~equest"hy .thk ..wiss-.authorities for a wa.iver of or renunciation of
imxinity of a United Nations official in connection with his ackivitics
as a member of the hard (administrateur) of a cooperative apartment
1. . I wish to refer to yaur mempian~urn of 17 Dec em b.er 1'355 on the above
.,subject which'.,yas-: addressed., ,to '&he $&$37.. Counsel. .,--,.... ... -._-... ....
.. . .. . -. .-.. .. . . -..-..---.
2. In our view, in cnse of a :r~l.actiori rg1atin.g to private i&vFb.~ ...
property, there is no 5ecessiky for the Secretary-G=aeral to @gree to .awaiver
or to nakk a69 prcmidich 'fort~nnunciation of hGkity 'since ArticXe 31 of t%e
Vienna Convention on Dipl.o~atic &laf ions provide6 'that a dipl.omatic agent
shall not enjoy imlurrity fro= civFl and afininistrative juriwrliction ir, such
cases.
-9 fTo',r+ver, i.t is conccivs?3ie thzt a koa~c';i;l.~~io~rof 2.cccc;erativn or
2.
conriominium zpartment my he sued, in that capacity, in an action which is
r -'atscl to kbe property (e..~. negligenze).. _hut yhich is nevertheless. no$ z?real
A, ,)ion with in the rn&& ing -of fir tibik: '31 tif.ths Vieiih5' convenkid'n .'.Xn. such '
cases, it would be in accorrlance with th? spirit and the 3.av governing the
Geneva headanarters arrangements to recor6 our understanding that no im:unity
fro3 civiland administrative juris8iction would apply anB that the
Secretary-General 6oes not intend to invoke im'unity in suc5. cases. PCS~R.!S/FS/~~/~~
V;P
UNITED NATIOPS @R$, SATTOSS USIES
<-i-t..&P
rosrA~o~c~P-.~.+-cI-.,u~tr\ATICN*Y*SO.?
CAELADORCIS-AORLTCLCS~ACW1UMATINXWYO**
31 May 1988
Dear Ms. I
File No, : lU11RB399192J . .
Insured: United Natians -'
QWt:
) D/L: 1/14/85
This respik to your letter to Mr. Frank Eppert of 19 hy 1988
regarding tk claim againstth= United Natichls by Ms
Olrrletter of 3 addressed to .Mr.
Rqxesentative -of The Travelers es J -to ..
a xrluntary appearace an =of fk United Nations in Ms.
case,kat also state3 that sud-r autlPrity was limited to the
ulsurmce mmqe of $3,000,000. We note, jn this respect, that ycrur
- attorneys have advised th=t a voluntary apparance camat te cplified
an3 that mce waived, th= Orgdzaticm's immunit yanraotbe re-asserted
in xespezt of any award in excess of the insurance limit. Cctlseqierrtly,
you requested an uccplified dm of tl.E !rcprlizi3.ti cmm'ity to
ena3il.!2b Pravelers to enter thE!wluihtary earance, or otl-erwise
aut'ir>rize WamClflrs to .assert tb Uilited Nations' hmwity.
. .
The United Natians is immune frcm every fbrm of legal process by
virtue of, a~ong otks, tte Con~ritian on tfe Privileges ard Dmmaifies .
(-1 fik Unit& Nati-, 1 U-N.T,S. 15, 21 U-SIT.1418, TLAS 6900- It
sbuld b Wed, in i3-i~respect, thattb Canvention requires th3 United
Nations to provide ~rqnfate des fbr settlement of disputes of a .
priMe lawmtt&--&--a&-tZ-.Wta Hat1m.s-is.a party.,"and -wx ieif
gdts wait;er of imrmrnity fran suit to allow adjudication of su&
tSaims, .ading to Section 2 of tEE CDlW-nti~n~ I'm vai- of imdty
-:1&dl extend to any mure of execution". The policy of insuranc e5th
?he Travellers pur&as& by th? United Nations was intended to provide
itemdh.nism for satisf~tion of dlaims, suck as .that of Ms.
, negatiatid or by murt action if necessary by i
waiving thE!inmudties of Ehe Organization. Tferefbre, it is not W .
intention of tkE Organizaticxn to assertits immunity in thiscase.
However, my waiver of immunity autbrizing & avzulce on &half of
the Organization Is of necessitysubjectto the provisions of Section 2
of th convation =£erred to bve. f
and Director, pixs. Xai1:c SollL;kge:~ f.e1,.i
5~-rdo1:.I,egal 0f.Zimr
.. . Unites E";izt.ia~r;Offim: st: <*cbi:c'v'~
Pal$. ~z:kl.i2 -ir%c: ..-.2~25
rE!pl.lQt0 ~TM> Z~TY&C-~&I~:~&~~-~~-!~~pl-.-.
Off ice of-91 &?Fn S.rs
pt-;j;"..gor a .t.nivsirof, fmxori?y iri .xe.s~.ct -. .... .. ...
......... ...
...........-.--........
..:. .
Ali3oucjl-ilik provisions 02 3xticle...31(1) (G) 02 *e Vienna
2.
Convention on DipImtic Pelatials r.f a..& to in xy x$r;;oril~im.cxE I 6
Rto't=u lS9 rould have &a e&licdb7-e :.n.this case,5%s . eemstkut tihs
timefactor involved in tke nat& of sheclein in &s '
c?t=Ove-~enti~ pczvi*io~?~, 01' the Viencrla .Cor.ve~-ti xanis. . a slit*t
di5fe;rerce in e.e inte-rpzetati 02~the msa at,Fad.
1 )
3. in the 1i+,t of i?ll circmsta~~cos ardl t.&in3 intoc'.cca-S rlc\,iton
17 of. i&i.Gu~ei,~ ffeac?qatexs ilgree-~esk $:haeby tF,e Seceta~y~s~1sri3,T-
pas the ric$t 43%~~auty k~ wiis. .%:e.im~+ty of ~5gicial v21me.
I suchim.&ur,i,~y 1.1.:41?imm@z the CY~ULSL?OE justice CFX Phcv~tit~3 '
...
urit;yuf priSjxIics .to 'th ientksst of.~l&-or~iz;itio~; f&vo*xahle
' sctiori 'fi,~5=F'2tti3);ea on rfsyiest rac3c by Eke S..risazt~tlnii"&es a93
-.
li. rnps~1Z for tl-riv;;iit.::f ht~xlity OE e.2
!
kg,pitx;.. of P!_r) , ;xirkg p-~~,~si~,~~ A!L -%f-.-..v725.vc:;:
o,xt.,erAssqle1y to ~tim-= =jsirL2 Err,? ~cti\~tieG 2.3 ?-I.
-.7i.-j~--Ar,v -fi.-:aqk ailC-r+--.:---=;I.. as dzscr i:~&
:- -.,zr~y~~~,r~~z$;~~ d!zt~? 1s mt6c~r 1939.
- ,'?.<>.-\$
l)KI?-Lu Xti.I*JoNS u$$?&;4-~ ZAllO>s Gs1Ls
\&"j--;c
INTEROFFICE kIEhlORANDUhf SIEh1ORANDUI.i INTERIEUR
TO: hlr. Feclerico Riesco, Director DATE: 19 >larci7 19?0
A: Staff Administration andTraining Division
(x-1~4 REFERENcr; /*:#:.' *y8..f,:*
THROUGH:
SIC DE:
DE:M: Sinha Basnayake, Director
General fiegal Division, QLA -
OBJET:T:
1. Reference is made to ymr memorandumof 15 February A990 on the
ave-ref erred to subject, whi& was the subject of an earlier excrhange of -
memoranda between us (see yours of 27 April 1989 and my reply. of 1 Deceniber
, 1989).
2. Our cnments on the issues raised in yaur latest memorandm areas
f~llm~:,....~-- ....:r-. .. ..-......_..---...._ ..-.-.-..,.-....-..--.----. .. ...--- ..---.--. . ' .. . ".-.- . - I
A. Procedure (see para,2(a) of ycxu: menorandurn)
3. The applicable imigration regulation (see 8 C.F.R.section 247.11,
attached) requires that an individual lawfully admitted for permanent
residence status, tiho is also entitled to G-4 status, execute the waiver; if .
he does not do so,he will have his status re-adjusted from that of permanent
resident to that of C4 by .the U.S. Imigration andNaturalization Service,
There is no requirement mder that regulation that,in thecase of a UN staff
&r, evidence be produced of the Secretary-General 's ansent to *
' execution of the waiver (see, howwer, ourcxma-ents contained in para. 5 .
be A cow of the standard form of waiver to be exdted is atta&ed for
your information. As to theprocedure followed by U.S. auwrities, we
understand that mmlly the standard fonn of waiwr is executed on the day
'che irdividual is interviewed by a U,S. inunigration official- On occasion
when,for scm reason, tihe waiver is mt executed before a U.S. immigration '
official, theU,S. Permanent Mission to I3-e UN Will arrange, as a matter of
convenieme, for the waiver's execution at .t-heMission.
B. Is the ~ecre&rpGeneral's consent required for the waiver to be
Legally effective under U,S. law? (see Fa. 2(b) of your
memorandum)
4. Privileges and hunities are granted to UN officids in thf3 interests of
the Organization, and rbt for ths benef it of the .individuals themselves. It
is for theSecretary<-enera &one to decide vhsiil-er to waive i2-e privileges
i~d immunities granted to idividuals based on &ir. status as officials (see,
ge??erally, Article-56-9 20, Convsnt5on on fk Privileges snd Immunities
of the UN ["(XJnvention"] ). Frorr! the TM sLdpint, Wrefbre, s. waiver
&:&ended withut authority fron the &etary-~e.qerzl. would Ix inef fectiw . -uo$quaqqGx J- 0% qqfkto~q ST uojqwqxwnp
30 XDeT ayrFuayfi as= e wns uj ayeq p-pw SaTqTz-ne *Son ayS Map qqy
07 SP uTeqxaa aq qouuea :, "laAamH -uo~quauq 3% 07 uoTssame s,qwxa~,06
qey?,uo pasq *s-n xapun a~~qaa33au~aq p-~m ~aau~hqa~
aqq ~0x3 uo;qez-gxay3nG qncqqpi ~e-ga~330 F! pqrwxa I~AJ-~M e 3ew m7:p3
Iaxogaxqq 'uoyu~doxno uy . *quaunrxand3 30 uprezg aAjqn3am *son am
pp24 33
30 ?uaqMq -e Aipaq~lj~uo~duo;?e~nfja.z P Xq paqefjau 10 papasxadns aq pmrw
uo~qua~ua ay7 30 suojs-poxd ay3 qew qqnop 'oqaxqq quensmd paqnaaxa
2aA-p.iP uo &mu~qj6ay am za3uoa 07 axafi (a~oqe E -PA aas) uopP@ax
uojqez6pn.u~ ayqeagdde ay.73~ uaAg -~exauag-jCleqa,ma~ aw ~ F Mpaq~sdap
SQM uoTssame 30 quaumqsu? ayq uijyt40~6~~yxdv 62 1x013se *Son am 30
t.juyby7 ijulllaq 27 pue '0~6~ T~IG~ 1;~uo UO~?U"AU~ ayq pa~3~qex :S?p?S?Xd 'S'fl
sq:,'\:o;qea;$;jv1 $2 $ ~2 :ruGn:oaPLI~ ?3p'ix~s &~L~!ss S- 11;qq C;IT:.~,~TC)J' *ew.,&..,---*L4.%1:m*+$.,:.-.:.:. . .
.?:&?.!?~.~.-&&. .;..-- ..
2+>7.?:u>&*;;;=.,*.--.:<#.&--'- ...-..*
..... ..*...,-., ....---............. ,@R:t,
....... -..<+y,.--uNI'TED NATIONS q@)d NATIONS UNIES
.:. ........... -:. yd~-...JP
-.-. INTEROFFICE LIEMORANDUh! MECiORANDUI hl TERIEUR
...-rd.h: S.....:..
-- e:..:.....-...,.:-.ic..enior:L-----. .*....l---..-ficer
..... :.-... f,eaal &LiaisonofTLce, -UNOG REFERENCE:
' -:-':-..'THROUGH: -..
. 'P/C DE: ..
... ..,:. . '. -. ,.
. .
.. 'FREOM: :-..-:Ralp Zhacklin, DirectoranclDeputy
.C....... . .... to .t .h eUnde r--,Secretary-General, OLC
..........,;';;.,>,.
---.--..- SUBJECT:. .- ... ....
...:.........-f,-.-----.-.-.----,,,-._. .-......*.. .---- .,..-- .....-... ......
-\.....----*::iL...':%&&z.:b:-*.=G'd,F.:;:I>-.:-: :&A::..,-.-.- . - .
......-..1...; R.e-ferenceis made to your fax of -11 May' 1992 requestingour
.---.----- .- . ---. . .-- .--
..--....a.ws as to whGth-er'- --fr inay appeal.thedecisionto waive
h -asuit-.brougha tgainsthim by his
--,---- -.---*,.---*..--*.., ........
as-.follow : s
... .- -. .- - -.--.--- -' .--..<.,.
..... attachedto the
-.?b;tp:.. Theseprivileges'and'innunities furnishno excuse to
% y,,<T..- the staff members who enjoy them for non-performanceof
' :-.ir-$!&.-.+ .i:.:.heirprivate obligationsor failureto observe laws
s and police regulations. In any case where these
. . privilegesand immunities arise,the staff member shall
immediatelyreport to the Secretary-General, with whom
..-..-.---"- alone it rests to decidewhether they shall be wa%vedn. .
.[ )
3. It is thus clear that is for the Secretary-General to decide
whetherto waive privileges and immunitiesin a particularcase.
In this case there seems no reason why it would be in the
interestsof the Organizationto preventa household employee 02
a UN staffmember from pursuing a privateclaim againstthat
staffmember in national courts. Althoughi$ might be argued
that the staffmember could appeal sucha decision, since Article
1.8 of the Staff Regulations is part of the staff members terms
and conditions ofemployment, suchappealstands little chanceof
success. In any event, an eppeal by Mr. does not prevent
I a decisionfrom taking effect.
i 4. YOU may, therefore, advise the Swiss authorities that
Ellr. innunity Is waived.
i
1 C.C. Mr. Abdou Ciss UNITED NATIONS NATIONS UNIES
The LegalCounselof the United Nationp sresents his
compiimentsto the United StatesMissionto theUnitedNations
and has the honourto referto the latter'snote verbale HC-20-93
ing a waiverof immunityof Mr. Ca
and,whereapplicable, the
childrenfor purposesof proceedings initiatedby Mrs.
against her spouse,Mr. in the FamilyCourt of theState
of New York, Countyof Westchester(CaseNo. 0-1570-93, FileNo.
29177). The waiverof immunityis requested nfor the purposeof
allowingserviceof summonsin this caseon Mr. , and to
pennitthismatter,as set forthin the ...petition,to be heard
and adjudicatedby the FamilyCourtw.
In accordance withthe provisions of Section20 of the
convention on the Privilegesand Immunitiesof the UnitedNations
(1UNTS 15[1946], 21UST 1418,El5701 TIASNo. 6900')and in order
not to impedethe proper administratioo nf justice,the
secretary-Generah las decidedto accedeto therequest.
he immunityof Mr. ,his spouseI4rs.i
and, where applicable,the childrenis
waiver is strictly urposesset out
in the referenced notv eerbale,that is'tosay allowingservice .
of the summons in this case on Mr. and permittingthe
legal proceedingt so take placeat the FamilyCourt of the State
of New York,Countyof Westchester andthe adjudication by that
Court,and shallnot be deemedas a waiver,eitherexpressedorimplied, of immunity for any other purpose.
The Legal Counsel of the United Nationsavails himself of
the opportunityto renew to the United States ~ission to
United Nations the assurances of his highestconsideration
26 April '1993 POSTAAOOnCS).-r0nCFOSlAbUhllChATIONH.7Ic*(?
CAOLAOORCSI-ADITSICLZCRA~r(lUNAIIOHCW7OIIX
-.
24 January 1995 .
Dear Mr.
\ i
Re:
Human Rights
--......=Xs,.yo~-.will -recall,. in conne&ion with the above-
referenced case, I addressed to Y6U a cOpy-=bF'gy l&t&yt~:...; -- - - .--. '-=-.,..
of 8 August 1994 to the New York City omm mission on Human
Rights. -
By that letter, the United Nations notified all
concerned that insofar as it purported
of action against
Complaint must be
being an official of the United Nations, "is immune from
suit pursuant to the provisions of Article V, Section
18(a) of the Convent.ion on. the Privileges and Ikmunities
of the United Nations (the "General onv vent ion"), adopted
on 13 February 1946, 1 UNTS 15 (1946), and acceded to by
the United States on 29 April 1970, 21 U.S.T. 148 (1970).
T.I.A.S. N0.6900~~.
dated 11 January
1995 addressedy, to coMr. Attorney Trainee
the New York City Con
brought to my attention. The letter cor
that "As a United Nations official, Mr.
pursuant to Section 18(a) of the convention on the
Priv~leges and Immunities of the United Nations (21
U.S.T. l48), immunity from legal process in respect o
words spoken or written and all acts performed (by hi
in (his) official capacityH. However, the United Nations cannot accept as a
matter of principle, the assertion contained in your
letter that "Whether the alleged acts by Mr. giving .
rise to this suit were performed in his official capacity
is a question .for the court or. other appropriate
immunity muse asserttity. thatfenthets actsenalleged owere perfornecl
in their official capacity and participate in the process
insofar as issues relate to the determination of
i -~mmunity. If the court or other adjudicative entity
finds that the acts complained of were performed in the
defendant's official capacity, the defendant is immune
from the litigationtt.
97 of the Charterw, accoofinthe Unitedto thNations,ionsthe Secretary-le
General ltshall be the chief administrative officer of the
"Organiz'ationtl ; " Furthermore; -under .Section 20 of-.the --.- . -.. -. . . - .-=-.
Convention on the Privileges and lnmunities of the United
Nations, the Secretary-General has been granted "... the
right and the duty to waive the immunity of any official
in any case where, in his o~inion, the immunity would
prejudicee'coutoe the intereststice of athe United Nationsv wi.t=hout
(emphasis added). Based on these provisions, it has been i
a long-lasting and uncontested practice that the
competence to determine what constitutes an Iloffi~ial~~ or '
Hunofficialll act performed by a staff member is vested .,
yolely in the Secretary-General. .: .
ati ions vhas never recognizedregoing or acceptedions,that thcourtsitedof
law or any other national authorities of Member States
have jurisdiction in making determinations in these
matters.
Hans Corel'l J Aclrs
Under-Secretary-General for Legel Af'-'
The Legal Couns,el Dear Sir or Madam,
RE: Xn re international ~esociation of ConferenceInterpreters
('lATIC") and United States Region of the ATIC -- Federal
Trade ~ornmissioD nocketNo. 9270
( )
the UnitedNations have beenservedwith the £0110
connectionwith the above-
Commission:Ms. ,
5 -
The AIIC is not an organ or entityof theUnitedNations and the,....- *
activitiesof its members or ass-ociatesarn eoti-therefore,-'activities
..who may also be members of or associated withNatithe AIIC. members .
In accordancewith ~rti=le V, Section18. of the 1946 Convention
on the Privilegesand Immunitiesof the United Nations, I UNTS 15
(1946),to which the Governmentof the UnitedStatesof Ar,eric+
acceded in 1970, 21 UST 1418, [19701 TTAS No. 6900,officialsof the
United Nations llshallbe immunefrom legal process in respect of words
spoken or writtenand all acts performedby themin their official
immunitiesaccorded to the above-references thepdtaffmembersunder the,
Convention arebeing maintainedin respectof theseproceedingsby the .'
Organizationin regard to their officialactivities.
i
Insofaras the scope of the sub~oenas ad testificandumwhich have
been servedby the FTC on the above-reference dtaffmembers involves
the activitiesof the AIXC and doesnot extend to the official .
activitiesof the staff members for the UnitedNations,then the
that theOrganizationbe consultedin the eventthat there isly. Iardesire
to extend the scope of the FTCts investigation to the official
functionsof the above-referencedstaff members. .
Sin-erelyyours,
General LegalorDivision
Officeof Legal Affairs
Bv Eand
b!r. The Secretary-Generalof the UnitedNations presents
i the honour to
s Trust Fund
for the Vic'tims of ContemporaryForms of
arrestedby the competent authoritiesof
wing hearings on 8 and 9 February 1998,
was sentenced, on 12 February 1998, to
"'-thi~teen-.m'oAths-'dete'f .:'i-.n. ..-.--.-... ..--..- ..........--. .. .--.-
The Secretary-Generalhas the honourto inform the
Ministerfor Foreign Affairs thatpursuantto Article IX
of the Agreement between the Governmentof the
and the United NationsDevelopment
Programnesigned on 19 July 1979 (SBM , the Government
shell ap?ly to the United Natio~s and its organs, their
property,funds and assets, and to theirofficials,the
j 1 provisionsof the Convention,onthe Privilegesand ,
Immunitiesof the United Nations (theConvention) .
In accordance with Article VI, section 22 of the
Convention,~terpsrts performingmissionsfor the United . . .
Nationsshall be act-or sdecd privilegesand immunities
as are necessary for the independentexerciseof their
In
functionsduring the period of their missionst1.
particular,section 22 (a)provides that such experts
shallbe accorded "immunityfrom personalarrest or
detentiontt.Section 22(b)furtherprovidesthat experts
on mission enjoy immunity from legzl processof every
kind in respect of words spoken or writtenand acts done
by thm in the course of the parformznceof their
-
nission. .In ~ccozdanc's with Sectlor! 22(c),experts oa
misslo-. shall also be zccord-d inviolzbility:of "11
paptrs an6 documsnts. As 2 nz~ber of tht goard of
Trustees of the United Nztions %rusk Fund for the Victims of ContemporaryForms of Slavery,Mr. is anci
continues tobe an expert on mission for the United
Nations withinthe meaning of ArticleVI of the
Convention. In this connection,the UnitedNations
maintains theposition that it is exclusivelvfor the
for the Governmentof the
, to determinewhethercertain
words or acts fall within the course of the performance
of a United ati io mi ssion. However,in order for the
Secretary-Genkralto determinewhetherth
complainedof in the charges againstMr. fall
' within the'courseof the performanceof his mission as a
member of the Board of Trusteesof the UnitedNations
Trust Fund for the Victims of ContemporaryForms of
Slavery,.theSecretary-Generalurgentlyrequests* t
United Nations be granted immediateaccessto Mr.
The UnitedNations is also entitledto appearIn legal
t'o'd&Z'en 'any United.Nations-interes 't:;--;-....
affectedby 'thearrest or detention.
In addition to the foregoing, the
Secretary-Generalhas received reports that, in the
course of their investigation,the competentauthorities
of seized documentslocatedin Mr.
house belonging to the United Nationsand/orrelatingto
his mission on behalf of the United Nations. Pursuantto
Section 4, Article XI of the Convention,'Ithe archives05 *' .
I the United Nations, anciin generalall documents
belongingto it or held by it shall be inviolable
wherever located1 ' Accordingly,the Secretary-General
stronglyprotests any confiscationof UnitedNations . .
documents as a serious violationof their inviolability.
The Secretary-General therefofeurgentlyrequestsa
complete inventory of all documents confiscateda ,s well
as the immediate return to-theUnited Nationsof any
documentsbelonging .toit.
I
Finally, any interpretationof the provisionsof the
Conventionmust be carried out withinthe spirit of the
underlyi~gprinciples of the Charter ofthe United
Netions, and in pzrticular ~rticle 105 thereof,which
provides th+t the .Org~nizatior rhall enjoy such
privilegasan6 imnuni-ci~s as cre nacessar ypfor th~
fclfilmezt of its purposes aai thet its orricialsshall
.3.&,..Ar-.----D-,;s.dckA--A.-----.-- .....-......------I- ST% necessaryfor the independent exercis of their functions
in connection with the Organization.
In the lightof the fore&oing,the Secretary-General
trusts that the Ministerfor Foreign Affairs will
immediately requestthe competentauthoritiesto resolve
thismatteras soonas possiblein a manner consistent
he obligationsof the
under the SBAA, the Conventionon the
~Givile~es and Immunitiesof the UnitedNations and the
) Charter of the United Nations.
The Secretary-General avadlshimselfof this , '
.*...
25 February 1998 UNITE11 NATIONS &..J,;hNATIOES UKICS
-VL/
The Secretary-Generalof the UnitedNationspresents
to theUnited ati i onds
Presidentof the
for the Victims of ContemporaryFormsof Slavery (the
~oard) .
As a nerrberof the Board, is deemed to be
an expert on rniss'iofnor the U s within the
meaning of Article VI of the Conventionon the Privileges
and Xmmunities of the United Nations (the Convention .)
A1though is not a party to the Convention, the
Governmenthas a legal obligationto applythe Convention
to the ~nitkd Nations pursuant toArticleIX of the
~tandzrdBasic Assistance Agreementsignedon
19July 1979.
In accordance with Article VI, section22 of the
Convention,l'experts performing missionsfor theUnited.
lqations shall be ~ccorded such privileges ,andinnunities
as are necessary for the independentexercise ~f their
functionsduring the period of theirmissions1'. In
particular, section 22(a) provides.thatsuch experts
shall be accorded immunity frompersonalarrestor
detention. Section 22(b) further providesthztexperts
on mission enjoy immunity from legalprocesso? every
kind in respect of words spoken or ?zitten ane ~cts dons
by then in the course of the performtnceof thelr
nission. In accc-rdanczxith Section 22 (c, e:s:?ertor?
~FssFon shell els~ bz ~ccordz6 inviolability ?or all
pzpers e~d documents'. As the competent localauthorities didnot allow
representativesof the United Nations to formally meet
with Mr. during hisdetention and imprisonment,
the United Nations was not in a position to determine '
whether the actions leading-toMr. arrest and
convictionwere related to his fun a member of
the Board until hewas released fronl prison pursuantto
the Presidenttspardon.
i 1
Although the immunity from legal process enjoyedby
expertson mission is in respect of words spokenor
written and acts done by :hem in the courseof the
performanceof their mission, the United Nations'
-. interest-.5.ennsuring the uninterruptedadministrationof
the United ati i 'onustFund for'theVictims of a
ContemporaryForms of SlaverynecessitatesMr
availabilityto perform his functionsas a me e
Board. Accordingly,the United Nations trouldlike to
recall the Government'sobligations, under Section 22 of
on, to respsct the independentexercise of
functions during the period of his missions,
s freedom of navement within andoutside
and the inviolabilityof his papers and . . .(I
The Secretary-Generalavails himself of this
.
opportunityto renew to the PermanentRepresentativeof.
the the assurancesof his EXECUTIOFFICOF THE SECRETARY.C'ENLRAL
-ADINEDU SECRETAGENERAL
27 April 1998
Dear Mr. I
The secretary-~eneraland othersof us in the ,..
Secretariat are;-o -f collrse. ,relieved that your liberties
have been restoredafter your sentencingunder
law. You should be aware that,iminediately
rd of your detention, .we'made clearto the
authorities that--it viasunacceptablet .hat you
in connection with any words or acts'in your .
capacity as a United Nations expert on mission. ~6wever,
ruecould not assert the extensionof such immunityto
words or acts in your personal. czpacityas a citizen of
the country. In order to remove any ambiguitiesin this.
connection,your entitlement to immunityfron legcl
process is outlined below.
As k ME.&& of the Board of Trusteesof the United
Netions Trust Fund for the Victimsof ContemporaryForms
of Slavery '(the Board),'youare deemad to be an expert on
mission for the United Nations within the meaningof
Article VI 05 the Convention on the Privilegesand
Innunitiesof the dnited Nations (theConvention).
Although the is not a
party to the Co~vention,' the Government hasa legal
obligationto apply the Conventiori to the United Nations
~ursuaptGo Article IX of the standat%Basic Assistance
kgreementbetween the United NationsDevelopment
Programmeand the Government signed on 19 July 1973.
of the United Nations Trust Fund for
tfisVicLir~~ oZ Coil-texgor~ry Forms of Sle-i-erj. Lr:zccordance with Article VI, section 22 of the
Convencioi~, "experts perforicing missionsfor the Irtit-r.4
Nations shallbe accorded such privilegesand iminunities
as are necessary for the independentexerciseof their
functionsduring the period of their rnissions .fiIn
particular,Section 22 (b) furtherprovidesthat experts
on missionenjoy immunity from legal processof every
kind in respectof words s~okenor writtenand acts done
bv.t.hemin the course of the performanceof their mission .
(emphasisadded) . In accordancewith Section22.(c),
experts.on mission shall also be accordedinviolability
for all papers and documents. .
1 Based on the information containedinMr ..
and in the light ofis the mandate of the membersprof .the8
Boirrd,we cann;:tconclude that the actionsleading to
your recent arrest and convictionare xelatedto your
functionsas a menibexof the Board or thatthey were done
by you in the course of the performanceof your mission.
Pursuantto General Assembly resolutiol ~6/122 of 17
December 1991 (copy attached for ease.ofreference) ,
which establishedthe United Nations TrustFund for the
Victimsof Contemporary Forms of Slavexy(theFund) , the
membersof the Board are appointedby the Secretary-
Generalto give advice on the administration of the Fund.
Thus, althoughyour act,ionsto exposeand eradicate
slaveryare laudable, they do not:derivefrom your United
Nthe Funci.ate to give advice on the zdninistxation of
Eotwithstanding th~, foregoing,theUnitedNations ,
does have an interest in ensuring the proper
administraiton of the Fund and your avai1ab.it li to
perforti!our mandate as a rnenibeo rf itsBozrd.
Accordingly,the United Nations will takesteps to
reaffirmthe .
obligations,
respectthe independent exercise of your functionsduring.
the period of your missions, includingyour freedom of
movementwithin and outside and the
inviolabilityof your papers and documents.United Nations 0 NewYork,1998 ST/SGB/1998/8
1 March 1998
SECRETARY-GENERAL'SBULLETIN
STAFF REGULATIONS
The Secretary-General promulgatesthe following,with respectto the Staff
Regulationsof the UnitedNations, establishedby the General Assemblyaccording
to Article 101of the Charterof the United Nations:
1. By its resolution52/216of 22 December1997, the General Assembly
approved, witheffect from 1March 1998,the revisedbase scale of gross and net
salariesfor staff in the Professional and higher categoriescontainedin
annex I to the Staff Regulations, andthe consequentialamendment tostaff
regulation3.3 (b) (i).
2. The revisedtext of the Staff Regulations is attachet do the present
bulletin. The new text is effective as from 1 March 1998.
3. The present bulletin supersedesthe followingSecretary-General's
bulletins:
(a) ST/SGB/StaffRegulations/Rev.23 of 1 January1995;
(b) ST/SGB/Staff Regulations/Rev.23/Amenddlof 23 May 1995;
(c) ST/SGB/Staff Regulations/Rev.23/~mend.2of 7 May 1997.
(Siqned) Kofi A. ANNAN
secretary-General CHARTER OF THE UNITED NATIONS
provisions relatinsto serviceof the staff
Article 8
The United Nations shalp llace no restrictionson the eligibilityof men
and women to participatein any capacityand underconditions of equality in its
principaland subsidiary organs.
Article 97
The Secretariatshall comprise a Secretary-General an such staff as the
Organization mayrequire. The Secretary-General shalb le appointed by the
GeneralAssemblyupon the recommendatioo nf the Security Council. He shall be
the chief administrative officerof the Organization.
Article 100
1. In the performanceof their duties theSecretary-Generalandthe staff
shall not seek or receive instructionf sromany Governmentor from any other .
authorityexternal tothe Organization. They shall'refrainfrom any action
which might reflecton theirposition asinternationalofficials responsible
only to the Organization.
2. Each Member of'the United Nations undertakes to respect the
exclusivelyinternationalcharacterof the responsibilities of the Secretary-
General and the staff and not to seek to influence themin the discharge of
their responsibilities.
Article 101
1. The staff shallbe appointedby the sedretary-~eneral under
regulationsestablished by the GeneralAssembly.
2. Appropriate staffs shall be permanentlyassignedto the Economicand
Social Council, the TrusteeshiC pouncil,and, as required, to other organs of
the UnitedNations. These staffsshall forma part of the Secretariat.
3. The paramountconsiderationin the employmentof the staff andin the
determinationof the conditions of service shallbe the necessityof securing
the highest standardsof efficiency, competence and integrity. Due regard shall
be paid to the importanceof recruiting thestaffon as wide a geographical
basis as possible.
Article 105
1. The Organization shallenjoy in theterritoryof each of its Members
such privilegesand immunitiesas arenecessary for the fulfilmentof its
purposes.
-iv- 2. Representativesof the Membersof the United Nations and officials of
the Organizationshall similarlyenjoy such privileges andimmunities as are
necessary for the independentexercise of their functionsin connectionwith the
Organization.
3. The General Assembly may make recommendationswith a view to
determining thedetails of the applicationof paragraphs 1 and 2 of this Article
or may propose conventionsto the Members of the United Nations for this
purpose.
Amendments to the Staff Resulations
The General As'semblyestablished the StaffRegulations ofthe United
Nations according to Article 101 of the Charterby resolution 590 (VI) of
2 February 1952 and amended them thereafterby resolutions 781 (VIII) and
782 (VIII) of 9 December 1953, resolution 882 (1x1 of 14 December 1954,
( resolution 887 (IX) of 17 December 1954, resolution 974 (XI of 15 December 1955,
resolution 1095 (XI)of 27 February 1957, resolutions 1225 (XI11 and 1234 (XII)
of 14 December 1957, resolution 1295 (XIII) of 5 December 1958, resolution
1658 (XVI) of 28 November 1961, resolution 1730 (XVI) of 20 December 1961,
resolution 1929 (XVIII) of 11 December 1963, resolution 2050 (XX) of
13 December 1965, resolution 2121 (XX) of 21 December 1965, resolution
2369 (XXII) of 19 December 1967, resolutions 2481 (XXIII) and 2485 (XXIII) of
21December 1968, resolution 2742 (XXV) of 17 December 1970, resolution
2888 (XXVI) of 21 December 1971, resolution 2990 (XXVII) of 15 December 1972,
resolution 3008 (XXVII) of 18 December 1972, resolution 3194 (XXVIII) of
18 December 1973, resolutions 3353 '(XXIX) and 3358 B (XXIX) of 18 December 1974,
resolution 31/141 B of 17 December 1976, resolution 32/200 and decision 32/450 B
of 21 December 1977, resolution 33/119 of 19 December 1978, decision 33/433 of
20 December 1978, resolution 35/214 of 17 December 1980, decision 36/459 of
18 December 1981, resolution 37/126 of 17 December 1982, resolution 37/235 C of
21 December 1982, resolution 39/69 of 13 December 1984, resolutions 39/236 and
39/245 of 18 December 1984, decision 40/467 of 18 December 1985, resolutions
41/207 and 41/209 of 11 December 1986, resolutions 42/221 and 42/225 of
21 December 1987, resolution 43/226 of 21 December 1988, resolution 44/185 of
19 December 1989, resolution 44/198 of 21 December 1989, resolutions 45/241 and
' ' 45/251 of 21 December 1990, resolution 45/259 of 3 May 1991, resolution 46/191
of 20 December 1991, resolution 47/216 of 12 March 1993, resolution 47/226 of
30 April 1993, resolutions 48/224 and 48/225 of 23 December 1993, resolutions
49/222 and 49/223 of 23 December 1994, resolution 49/241 of 6 April 1995,
resolution 51/216 of 18 December 1996, resolution 52/216 of 22 December 1997 and
resolution 52/225 of 4 February 1998.
I CONTENTS
Paqe
Scope and purpose ...................................................... 1
Article
I. Duties. obligationa snd privileges .............................. 1
11. Classificatiolo if posts and staff ............................... 2
I11 . Salariesand related allowances ................................. 2
IV. Appointment and promotion ....................................... 6
V. Annual and special leave ........................................ 7
i )
VI . Social security ................................................. 7
VII . Travel and removal expenses ..................................... 8
VIII . Staff relations ................................................. 8
IX. Separation from service ......................................... 8
X. Disciplinary measures ........................................... 10
XI. Appeals ....................................................... 10
XI1 . General provisions ............................................ 10
I. Salary scalesand related provisions ............................ 11
I1. Lettersof appointment .......................................... 14
1 )
I11. Termination indemnity ........................................... 15
IV. Repatriationgrant .............................................. 17 STAFF REGULATIONS OT FHE UNITEDNATIONS
Scope and pumose
The Staff Regulations embodt yhe fundamentalconditionsof serviceand the
basic rights, duties and obligationsof the UnitedNations Secretariat. They
representthe broadprinciplesof personnel policy fot rhe staffing and
administrationof the Secretariat. The Secretary-Generala ,s the chief
administrativeofficer, shall provide andenforcesuch staff rulesconsistent
with these principles'as he consi'dernsecessary.
Article I
Duties, oblicrationsnd privileses
f i Requlation1.1: Membersof the Secretariatare international civil servants.
Their responsibilities are not nationalbut exclusively international. By
acceptingappointment, they pledgt ehemselves todischarge their functiona snd
to regulate theirconductwith the interestsof the UnitedNationsonly in view.
Resulation1.2: Staffmembers are,subjectto the authorityof the Secretary-
General andto assfgnmentby him to any of.theactivitiesor officesof the
United Nations. They are responsible tohim in the exercise.oftheir functions.
The whole time of staff membersshallbe at the disposal ofthe Secretary-'
The Secretary-Generas lhall establisha normalworking week.
General.
Resulation1.3: In the performanceof their dutiesmembersof the Secretariat
shall neitherseek nor accept instructions from any Governmentor from any other
authorityexternalto the Organization.
Remlation 1.4: Members of theSecretariat shall conductthemselvesat all
times in a manner befitting their statusas international civil servants. They
shall not engage in any activitythat is incompatiblewith the proper discharge
of their dutieswith the United ~ations. They shallavoid any actionand in
particular anykind of public pronouncemen thatmay adversely reflect on their
status,or on the integrity, independence and impartiality that are reqb uired
that status. While they are not expectedto give up their national sentiments
or their political and religiouc sonvictions, theyshall at all times bearin
mind the reserveand tact incumbent upon themby reasonof their international
status.
Resulation 1.5: Staff members shallexercisethe utmost discretionin regardto
all mattersof official business. They shallnot communicateto any person any
information known to theb my reasonof their.officia1position thathas not been
made public,except in the courseof their dutiesor by authorization of the
Secretary-General. Nor shall theyat any time usesuch informationto private
advantage. These obligations do not ceaseupon separation from the Secretariat.
Resulation1.6: No staff membershall acceptany honour, decoration, favour, '
gift or remunerationfrom any Government excepting fw oarr service;nor shall a
staff memberacceptany honour, decoration, favour,gift or remunerationfrom
any sourceexternalto the Organization without firs obtainingthe approvalof
the Secretary-General. Approvas lhallbe granted onlyin exceptional cases and
where suchacceptanceis not incompatible with the terms of staff regulation'1.2
and withthe individual'sstatusas an international civil servant.Resulation 1.7: Staff members may exercisethe right to votebut shallnot
engage in any political activitythat is inconsistent withor might reflectupon
the independenceand impartiality requiredby theirstatusas international
civil servants.
Resulation 1.8: The immunities and privilegesattached to the United Natiob ns
virtueof Article 105 of the Charter areconferredin the interests of the
Organization. These privilegesand immunities furnish no excuse to t staff
memberswho enjoy them for non-performanceof theirprivate obligations or
failureto observe laws and police regulations.In any case where these
privilegesand immunitiesarise,the staff member shall immediately repor to
the Secretary-General with whom alone ir tests to decide whether theshallbe
waived.
Rewlation 1.9: Menibersof the Secretariatshall subscribe to the following
oath or declaration:
"1 solemnlyswear (undertake, affirm,promise)t.oexercisein all
. loyalty,discretionand consciencethe functions entrusted tm oe as an
international civil servan of the UnitedNations,to discharge these
functionsand regulatemy conductwith the interestsof the UnitedNations
only inview, and notto seek or accept instructionisn regardto the
performanceof my duties from any Governmentor other authority externa to
the Organization."
Resulation 1.10: The oath or declaration shalbe made orallyby the Secretary-
General ata public meeting of the GeneralAssembly. All othermembersof the
Secretariat shall make the oath ordeclaration beforethe Secretary-General or
his authorized representative.
Article I1
C.lassificatioonf ~ostsand staff
Resulation 2.1: In confonn'ityith principleslaid down by the General
Assembly, the Secretary-Geners alallmake appropriate provision for the
classification of posts and staff accordingto the natureof the dutiesand
responsibilities required.
ArticleI11
Salariesand related allowances
Resulation 3.1: Salariesof staffmembersshallbe fixedby the Secretary-
Generalin accordancewith the provisionsof annex I to the present Regulations.
Resulation3.2: (a) The Secretary-Generaslhall establish termasnd conditions
under which an education granshallbe available toa staff member residina gnd
serving outsidehis or her recognized home country whose dependent ch ildin
full-timeattendance ata school,universityor similar educational institution
of a type thatwill, in the opinionof the Secretary-General, facilitat the
child'sreassimilation'it nhe staffmember'srecognized home country. The grant
shallbe payablein respectof the childup to the endof the fourthyear of
post-secondarystudiesor'theawardof the firstrecognizeddegree, whicheveris
the earlier. The akt.of the grantper scholasticyear foreach child shallbe 75 per centof the admissibleeducationalexpenses actually incurred, subject
to a maximum grant as approvedby theGeneral Assembly. Travel costs of the
child may also be paid for an outwardand return journeyonce in each scholastic
year between theeducationalinstitution andthe duty station,except thatin
the case of staff members servingat designated duty stationw shere schoolsdo
not existthat provide schooling in thelanguageor in the culturaltradition
desiredby staff membersfor theirchildren,
such travel costs may bepaid twice
in the year in which thestaff memberis not entitledto home leave. Such
travel shall be by a route approvedby the Secretary-General but not in an
amount exceeding the cost of such a journeybetween thehome country and the
duty station;
(b) The Secretary-General shall also establishterms and conditions under
which, at designated dutystations,an additional amount of 100 per cent of
boarding costs subject toa maximum amount per year as approvedby the General
Assemblymay be paid in respectof childrenin school attendance at the primary
and secondarylevels;
(c) The Secretary-General shall alsoestablishterms and conditions under
which an education grantshall be availableto a staffmember servingin a
country whose language is differentfrom his or her own and who is obliged to
pay tuition for the teaching of the mothetrongue to a dependent child attending
a local school in which theinstructionis given ina language otherthan his or
her own;
(d) The Secretary-General shall also establishterms and conditions under
which an education grantshallbe available toa staff memberwhose child is
unable,by reason of physicalor mental disability,to attenda normal
educational institution and therefore requires special teachin or training to
prepare him or her for full integration intosociety'or,while attendinga
normal educational institution, require special teachingor trainingto assist
him or her in overcomingthe disability. The amount of this grant per year for
each disabled child shalb le equal to 100per cent of the education expenses
act-tzallincurred,up to a maximum amountapprovedby theGeneral Assembly;
(el The Secretary-Generam lay decidein each case whetherthe education
grant shall extendto adoptedchildrenor stepchildren.
Resulation 3.3: (a) An assessmentat the rates and under the conditions
specified belowshallbe appliedto the salariesand such other emolumentsof
staff membersas are computedon the basis ofsalary,excludingpost
adjustments,providedthat theSecretary-General may, where he deemsit
advisable,exempt from the assessmentthe salariesand emolumentsof staff
members engaged atlocalityrates;
(b) (i) The assessment shall be calculatedat the followingrates for
staff members,whosesalaryrates are set forth in paragraphs 1
and 3 of annex I to the present Regulations: Assessment
Staffassessmentrates forpurposesof
Total assessable payments pensionable remuneratio nnd pensions
(UnitedStatesdollars) (percentage)
Up to 20 000 per year ............. 11
20 001 to 40 000 per year ......... 18
40 001to 60 000 per year ......... 25
60 001 and above peryear ......... 30
Staffassessmentratesused in
conjunction with gross base salaries
(percentage)
Staff member with
Staffmemberwith a neithera dependent
Total assessablepayments dependentspouse or spousenor a
(UnitedStatesdollars) a dependent child dependent child
First 15 000 per year ............. 9.0, 11.8
Next 5 000 per year .............. 18.1 24.5
Next 5 000 per year .............. 21.5 27.0
Next 5 000 per year .............. 24.9 31.5
Next 5 000 per year .............. 27.5 33.4
Next 10 000 per year ............. 30.1
Next 10 000 per year ............. 31.8
Next 10 000 per year ............. 33.5 38.8
Next 10 000 per year ............. 34.4 39.8
Next 15 000 per year ............. 35.3 40.8
Next 20 000 per year ............. 36.1 44.2
Remaining assessablp eayments .... 37.0 47.4
(ii) The assessment shallbe calculated at the following rates for staff
memberswhose salaryratesare established under paragraph 7 of
annex I to the presentRegulations:
Total assessable payments Assessment
(UnitedStatesdollars) (percentage)
Up to 20 000 per year ............. 19
20 001 to 40 000 per year ......... 23
40 001 to 60 000 per year ......... 26
60 001 and aboveper year ......... 31
i (iii) The Secretary-Genera lhall determinewhich ofthe scalesof
assessmentset out in subparagraphs(i)and (ii)above shall apply to
each of the groups of personnelwhose salary rates are established
under paragraph 5 of annexI to the present Regulations;
(iv) In the case of staffmembers whosesalary scalesare establishedin
currencies other than United Statesdollars,the relevantamountsto
which the assessment applies shal ble fixedat the local currency
equivalentof the above-mentioned dollar amountsat the time the
salary scalesof the staff member concernea dre approved;
(c) In the case of a personwho is not employedby the UnitedNations for
the whole of a calendaryear or in cases where thereis a change inthe annual
rate of payments made to astaffmember,the rateof assessment shall be
governedby the annual rateof eachsuch payment madeto him or her;
(dl The assessmentcomputedunder theforegoingprovisionsof the present
' regulation shallbe collectedby the United Nations by withholdingit from
payments. No part of the assessmentso collected shall be refunded becauseof
cessationof employmentduring thecalendar year;
(e) Revenue derivedfrom staff assessment noo ttherwisedisposed ofby
specific resolutionof the General Assembly shall be creditedto the Tax
Equalization Fund establishe by GeneralAssembly resolution 973 A (X);
Where a staffmember is subjectboth to staff assessment underthis
plan and to nationalincometaxationin respect ofthe salariesand emoluments
paid to him or her by the UnitedNations,the Secretary-General is authorize to
refund tohim or her the amountof staff assessment collected from him or her
providedthat :
(i) The amountof such refund shallin no case exceed the amountof his or
her income taxespaid and payable in respectof his or her United
Nations income;
(ii) If the amount ofsuch incometaxes exceedsthe amount of staff
assessment,the Secretary-General may also payto the staffmember the
amount of suchexcess;
(iii) Payments madein accordance with the provisionsof the present
regulationshallbe chargedto the Tax Equalization Fund;
(iv) A paymentunder the conditionp srescribed inthe three preceding
subparagraphs isauthorized inrespect ofdependencybenefits andpost
adjustments, which arenot subject tostaffassessmentbut may be
subjectto nationalincome taxation.
Resulation 3.4: (a) Staff memberswhose salaryrates are set forthin
paragraphs 1 and 3 of annex I to the presentRegulations shall be entitle to
receive dependency allowance for a dependent child, foa r disabled childand
for a secondarydependantat ratesapprovedby the General Assembly as'follows:
(i) The staff member shall receivean allowancefor eachdependent child,
except that the allowance shallnot be paid in respectof the first
dependent child if the staff member has ndoependent spouse, in which
case the staff membershallbe entitled tothe dependencyrate of
staff assessment undersubparagraph.(b)(i)of regulation3.3; (ii) The staff member shall receive.aspecial allowance for eac disabled
child. However,if the staffmemberhas no dependentspouseand is
entitled tothe dependencyrate of staff assessment under
subparagraph (b) (i)of regulation 3.3 in respectof a disabledchild,
the allowanceshallbe the same as theallowancefor a dependent child
in (i)above;
(iii) Where there isno dependentspouse,a single annual allowancs ehallbe
paid for a secondarydependantin respectof eithera dependent
parent,a dependent brother oa r dependentsister;
(b) If bothhusbandand wife are staff members, one ma claim, for
dependent chiidxen,under subparagraph(a) (i)and (ii)above,in whichcase the
other mayclaim onlyunder subparagraph(a) (iii)above,if otherwise entitled;
(c) With a view to avoidingduplicationof benefits andin order to
achieve equality between stam ffmberswho receive dependency benefit under
; ) applicablelaws in the form of governmental grantsand staff members who do not
receivesuch dependency benefitst ,he Secretary-Generalshall prescribe
conditionsunder which the dependency allowancf eor a child specifiedin
subparagraph (a) (i)above shallbe payableonly to the extentthat the
dependencybenefitsenjoyedby the staff memberor his or her spouse under
applicablelaws amountto less thansuch a dependencyallowance;
(d) Staff members whose salary rata ese set by the Secretary-General
underparagraph 5 or paragraph 6 of annex I to the presentRegulationsshallbe
entitledto receivedependency allowancea st rates and under conditions
determinedby the Secretary-Generald ,ue regardbeing given to the circumstances
in the localityin which the officeis located;
(el Claims for dependency allowancs esallbe submittedin writingand
supportedby evidence satisfactort yo the Secretary-General. A separateclaim
for dependencyallowancesshallbe made each year.
Article IV
Amointment and promotion
Resulation4.1: As statedin Article 101 of the Charter,the power of
appointmentof staffmembers rests with the Secretary-General. Upon appointment
each staffmember,includinga staff memberon secondment from government
service,shall receive a letter,of appointmentin accordancewith the provisions
of annex I1 to the presentRegulations and signedby the Secretary-General or by
an officialin the nameof theSecretary-General.
Resulation 4.2: The paramount consideratio nn the appointment,transferor
promotionof the staff shall bethe necessityof securingthe highest standards
of efficiency,competenceand integrity. Due regardshallbe paid to the
importanceof recruitingthe staffon as wide a geographical basis as possible.
Resulation 4.3: In accordancewith the principles of the Charter,selectionof
staffmembers shall be made withoutdistinctionas to race, sex or religion. So
far as practicable, selectionshallbe made on a competitivebasis. Realation 4.4: Subjectto the provisionsof Article 101, paragraph 3, of the
Charter, and without prejudict eo the recruitmentof fresh talentat all levels,
the fullest regard shall be had, in fillingvacancies,to the requisite
qualifications and experienc of persons alreadyin the serviceof the United
Nations. This consideratios nhall also apply,on a reciprocalbasis, to the
specialized agencies brought intorelationshipwith the United Nations.
Realation 4.5: (a)Appointmentof Under-Secretaries-Generaa lnd of Assistant
Secretaries-General shall normallybe for a period of five years, subjectto
prolongationor renewal. Other staff membersshall be granted either permanent
or temporary appointmentsunder such terms and conditions consistent witt hhe
presentRegulations asthe Secretary-General map yrescribe;
(b) The Secretary-Generalshall prescribe which staff member are eligible
for permanent appointments. The probationary periodfor grantingor confirming
a permanent appointment shall normall not exceed two years, providedthat in
individual cases the Secretary-Generalmay extend the probationary periodfor
( not more than one additional year.
Realation 4.6: The Secretary-Generalshall establish appropriate medical
standards that staff membersshall be requiredto meet before appointment.
Article V
Annual and s~ecialleave
Requlation 5.1: Staff members shallbe allowedappropriate annual leave.
Requlation 5.2: Special leavemay be authorizedby the Secretary-General in
exceptionalcases.
Realation 5.3: Eligiblestaffmembers shallbe granted home leave once in
every two years. However, inthe case of designated duty stations havin gery
difficultconditionsof life and work, eligiblestaff members shall be granted
home leave once inevery twelvemonths. A staff member whose home country is
either the countryof his or her officialduty station orthe countryof his or
1 1 her normal residencewhile in UnitedNationsservice shall not be eligiblefor
home leave.
I ArticleVI
Social securitv
I
Realation 6.1: Provision shallbe made for the participationof staff members
in the United Nations JointStaff PensionFund in accordancewith the
regulationsof that Fund.
Requlation 6.2: The Secretary-General shall establisha schemeof social
securityfor the staff, including provisions for health protection, sick leave
and maternityleave, and reasonablecompensationin the eventof illness,
accidentor death attributableto the performanceof officialduties on behalf
of the United Nations. Article VII
Traveland removalemenses
Resulation7.1: Subjectto conditionsand definitions prescribed by the
Secretary-General, the United Nations shallin appropriatecases pay the travel
expensesof staff members,their spousesand dependentchildren.
Resulation 7.2: Subjectto conditionsand definitions prescribed by the
Secretary-General, the United Nations shall pay removac losts for staff members.
Article VIII
Staff relations
Realation 8.1: (a)The Secretary-General shall establish andmaintain
continuouscontact and com~anicationwith the staff in order to ensurethe
effective participation of the staffin identifying, examining and resolving
issues relatingto staffwelfare,includingconditionsof work, general
conditionsof life and other personnelpolicies;
. ,
(b) Staff representative bodies shallbe establishedand shallbe entitled
to initiate proposalsto the Secretary-General for thepurpose'set, forth in
subparagraph (a) above. They shallbe organizedin such a way as to afford
equitable representation ta oll staff members,by means of electionsthat shall
take place at least biennially under electoralregulationsdrawn up by the
respective staff representativ beody and agreed to by the Secretary-General;
(c) Cancelled.
Resulation 8.2 : The seciretary-~enera shall establish joint staff/management
machineryat both local and Secretariat-wide levelsto advise him regarding
personnelpolicies and general questionsof staff welfareas provided in
regulation 8.1.
Article IX
Se~arationfrom service
Realation 9.1: (a)The Secretary-General may terminate'theappointmentof a
staff memberwho holds a permanentappointmentand whose probationary period has
been completed,if the necessities of the service require abolitioo nf the post
or reduction ofthe staff, if the servicesof the individual concerned prove
unsatisfactory, orif he or she is, for reasonsof health, incapacitated for
furtherservice;
The Secretary-General may also, givinghis reasonstherefor,terminate the
appointmentof a staffmember who holds a permanent appointment:
(i) If the conductof the staff member indicatesthat the staff member
does not meet the highest standardsof integrity required by
Article 101,paragraph 3, of the Charter; (ii) I£ facts anteriorto the appointment of the staff membe and relevant
to his suitabilitycome to light that, if theyhad beenknown at the
time of his appointment,should,under the standards established in
the Charter,have precludedhis appointment;
No termination under subparagraphs(i)and (ii)shall take place until the
matter hasbeen consideredand reportedon by a special advisorb yoard appointed
for that purposeby the Secretary-General;
Finally,the Secretary-General may terminate the appointmeno tf a staff
memberwho holds a permanent appointmen if such action wouldbe in the interest
of the good administrationof the Organization andin accordancewith the
standardsof the Charter,provided thatthe actionis not contested by the staff
member concerned;
(b) The Secretary-Generalmay terminate theappointment of a staff member
with a fixed-term appointment prit or the expirationdate for any of the
( ' reasons specified insubparagraph(a)above, or for such other reasonas may be
specifiedin the letterof appointment;
(c) In the case of all other staff members,includingstaffmembers
servinga probationary period for a permanent appointmentt ,he Secretary-General
may at any timeterminatethe appointmentif, in his opinion,such actionwould
be in the interestof the United Nations.
~ecruiation9..2: Staffmembers mayresign from the Secretariatupon giving the
Secretary-General the noticr eequiredunder the termsof their appointment.
Realation 9.3: (a)If the Secretary-General terminate an appointmentthe
staff membershallbe given such noticeand such indemnity payment as may be
applicable under the StaffRegulationsand Staff Rules. Payments oftermination
indemnityshallbe madeby the Secretary-General in accordancewith the rates
and conditions specifiei dn annexI11 to the present Regulations;
(b) The Secretary-General may, where thecircumstances warrantand he
considersit justified,pay to a staff member terminate under the final
1 1 paragraphof staff regulation 9.1 (a) a termination indemnity payment not more
than 50per cent higherthan that which would otherwisb ee payableunder the
Staff Regulations.
Recrulation9.4: The Secretary-General shalelstablish aschemefor the payment
of repatriation grantswithin the maximum rates and under the conditions
specified in annex IV to the presentRegulations.
Recrulation9.5: Staffmembers shall not be retainedin active servicebeyond
the age of sixty yearsor, if appointedon or after 1 January1990,beyond the
age of sixty-twoyears. The Secretary-Generalmay, in the interestof the
Organization,extendthis age limit in exceptional cases. ArticleX
Disci~linarvmeasures
Remlation 10.1: The Secretary-Generamlay establishadministrative machinery
with staff participation which will be availa toledvisehim in disciplinary
cases.
Realation 10.2: The Secretary-Generamlay imposedisciplinary measureo sn
staff memberswhose'conduct iu snsatisfactory.
He may summarily dismissa member of the stafffor seriousmisconduct.
Article XI
Realation 11.1: The Secretary-Generaslhallestablishadministrative machinery
with staffparticipationto advise himin case of any appealby staff members
againstan administrative decision alleging t non-observance oftheir termsof
appointment, includina gll pertinent regulationasnd rules.
Realation 11.2: The United NationsAdministrativeTribunalshall,under
conditions prescribei dn itsstatute,hear and pass judgementupon applications
from staffmembers alleging non-observance of theirterms of appointment,
including al1,pertinentregulationsand rules.
Article XI1
General~rovisions
Resulation 12.1: The present Regulations mabye supplementedor amendeaby the
GeneralAssembly,without prejudice to the acquiredrightsof staffmembers.
Rewlation 12.2: Such staff rulesand amendmentsas the Secretary-Generam lay
make to implement the present Regulations shal be provisional untilthe
requirementsof regulations 12.3and 12.4 belowhave been met.
Reaulation 12.3: The full textof provisionalstaffrules and amendmentsshall
be reported annually to'theGeneralAssembly. Shouldthe Assemblyfind that a
provisionalrule and/or amendment is inconsistent with the intent and purposeof
the Regulations, it may directthat the rule and/oa rmendmentbe withdrawn or
modified.
Reaulation 12.4: The provisional ruleasnd amendments reportebdy the
Secretary-Generalt ,aking intoaccount such modifications and/or deletit onst
may be directed by the GeneralAssembly, shall enterinto full force and effect
on 1 January following the yea rn which thereport ismade to the Assembly.
kealation 12.5: Staff rules shallnot give riseto acquiredrights withinthe
meaningof regulation 12.1 while they are provisional. Annex I
SALARY SCALESAND RELATED PROVISIONS
1. The Secretary-Generas lhallestablish the salaro yf the Administratorof
the UnitedNations Development Programa med the salariesof UnitedNations
officialsin the Directorcategoryand above,in accordance with amounts
determinedby theGexieral Assembly, subject to the staff assessmp entn
providedin staff regulation 3.3 and to post adjustments wherever applied.
If
otherwise eligible, they shall receive the allowance that are available to
staff members generally. With effect from1 January1998,the Administratorof
the United Nations Development Programme shallreceivea gross salaryof
US$ 175,344per annum.
2. The Secretary-General is authorized,on the basisof appropriate
justification and/or reporting, to make additional payments to U Nations
( ) officialsin the Directorcategory andabove to compensate for such special
costs as may be reasonably incurred,in the interestsof the Organization,in
the performance of duties assignet do them by the Secretary-General.Similar
additional payments in similar circumstances ma be made to heads of offices
away from Headquarters. The maximumtotal amountof such paymentsis to be
determinedin the programme budgetby the GeneralAssembly.
3. Exceptas providedin paragraph 5of the present annex, the salary scales
and the scalesof post adjustmentfor staff membersin the Professionaland
higher categories shallbe as shown in the presentannex.
4. Subjectto satisfactoryservice,salary incrementw sithinthe levelsset
forth in paragraph 3 of the presentannex shall beawardedannually, exceptthat
any increments above step XI of the Associate Officer level,step XI11 of the
Second Officer level, step XI1 of the FirstOfficerlevel,step X of the Senior
Officer level and step IV of the Principal Officer level shab ll precededby
two years at the previousstep. The Secretary-Generai ls authorizedto reduce
the interval between salary increments to ten monthsand twentymonths,
respectively, in the case of staff subject to geographical distributi who have
an adequateand confirmed knowledgo ef a second official languag of the United
I 'Nations.
5. The Secretary-Generas lhalldeterminethe salary ratesto be paid to
personnel specifically engagf edr short-termmissions, conference and other
short-term service, to consultants, to FieldServicepersonneland to technical
assistance experts.
I 6. The Secretary-Generas lhallfix the salaryscalesfor staff membersin the
1 General Service and related categorin es,mallyon the basisof thebest
prevailing conditiono sf employment in the localityof theUnitedNationsOffice
I concerned,providedthat the Secretary-Genera may, where he deems it
appropriate,establishrulesand salarylimits for payment of a non-resident
allowanceto GeneralServicestaffmembers recruited from outsidethe local
The gross pensionable remuneratio on such staff shallbe determinedin
I area.
I accordance with the methodologyspecifiedin article54 (a)of the Regulations
of the United Nations Join ttaffPension Fundand are shownin the salary
I scales applicable to such staff.7. The Secretary-General shall establishrules underwhich a language
allowancemay be paid to staff membersin theGeneralService category who pass
an appropriatetest and demonstrate continue proficiency inthe use of two or
more officiallanguages.
8. In order to preserveequivalentstandardsof livingat different offices,
the Secretary-Generam lay adjustthe basic salaries set forth in paragraphs 1
and 3 of the presentannexby the applicationof non-pensionable post
adjustmentsbased on relativecosts ofliving, standards of living and related
factorsat the office concerned as compared tN oew York. Such post adjustments
shallnot be subjectto staff assessment.
9. No salaryshallbe paid to staffmembers inrespectof periodsof
unauthorized absence frow mork unlesssuch absence was caused by reasonsbeyond
their controlor duly certified medicar leasons. SALARYSCALE FOR STAFIF NTHEPROFESSIONAL CATEGOA RNYDABOVE*
Annualgrosssalaries and net equivalents after aptaffassessment
Effectivearch1998
(United States dollars)
STEPS -
Level I II 111 IV V VI Vil Vlll IX X XI XI1 Xlll XIV XV
Under-Secretary-General
USG Gross 147420
NetD 102130
Nets 91883
Assistant Secretary-General
ASG Gmss 133994
Net D 93671
NetS 84821
Dkector
D-2 Gmss 109741 112164
NetD 78390 79919
NetS 72056 73338
PrincipalORicer
Dl Gross 97119 99168
NetD 70324 71833
I Net S 65 012 68158
I-' SeniorOfficer
I P-5 Gross 85685 87516
64168
NetD 62983
NetS 58486 59570
FirstOfficer
P-4 Gross 70 619 72382
NetD 53196 54353
NetS 49523 50 584
SecondOfficer
P-3 Gross 57720 59351
NetD 44669 45754
NetS 41685 42683
AssociateOfficer
P-2 Gross 46 458 47883
NetD 37 035 38 006
NetS 34 741 35822
Assistant Officer
P-1 Gross 35382 36718
NetD 29317 30251
NetS 27655 28515
D= Rateapplicabletostaffmemberswitha dependenstpriuseorchild.
S= Rateapplicabtostaffmemberswith nodependent spousoerchild.
=This scalewillbeimplementinconjunctwitha consolidatof 3.1per centof postadjustment.Therewillbeconsequentiaalinthe postadjustmenitndicesand
multipliersatalldutystations,effective1MarThereafter, chainspost adjustmentclassifinisll be effected on isf themovemenofthe consolidatedpost
adjustment indices. LETTERSOF APPOINTMENT
(a) The letterof appointmentshall state:
(i) That theappointment issubjectto the provisionsof the Staff
Regulationsand of the Staff Rulesapplicableto the categoryof
appointmentin questionand to changeswhich may be duly madein such
regulationsand rules from time to time;
(ii) The nature of the appointment;
(iii) The date at which the staff member is requiredto enter upon his or
her duties;
i J (iv) The period of appointment, the notice requiredto terminateit and
period of probation, if any;
(v) The category,level,. commencingrate of salary and,if incrementsare
allowable,the scale of increments, andthe maximumattainable;
(vi) Any specialconditionswhich may be applicable;
(b) A copy of the Staff Regulationsand the Staff Rulesshall be
transmittedto the staff memberwith the letterof appointment. In accepting
appointment thestaffmember shall state that he or she hasbeen acquaintedwith
and accepts the conditions laid down in the Staff Regulations and in the Staff
Rules ;
The letterof appointmentof a staff member on secondment from
(c)
governmentservicesignedby the staff member and by or on behalf of the
Secretary-General, and relevantsupportingdocumentationof the terms and
conditionsof secondmentagreedto by the Member State and the staff member,
shall be evidenceof the existenceand validityof secondmentfrom government
service to the Organizationfor the period stated in the letterof appointment.
' J Annex I11
TERMINATIONINDEMNITY
Staff members whose appointmenta sre terminatedshall bepaid an indemnity
in accordancewith the following provisions:
(a) Except as providedin paragraphs (b, (c)and (elbelow and in
regulation 9.3 (b),the terminationindemnityshallbe paid in accordancewith
the followingschedule:
. Months of gross salary,less staffassessment, where
applicablea or
Months of pensionable remuneratiol ness staff assessment,
where applicableb
Temporary Temporary
appointments appointments
Completed which are for a fixed
years of Permanent not for a term exceeding
service appointments fixed term six months
Not applicable Nil One week for each month
Less than 1 .......
Not applicable 1) of uncompletedservice
3 1) subjectto a minimum of
3 2 1 six weeks1 and a
4 3 1 maximum ofthreemonths'
5 4 1 indemnitypay
6 5 3
7 6 5
8 7 7
9 9 9
9.5 9.5 9.5
10 10 10
10.5 10.5 10.5
11 11 11
14 ................ 11.5 11.5 11.5
15 or more ........ 12 12 12
aFor staff in the Professional and higher categories and in the Field
Service category.
For staff in the General Service and relatedcategories.
(b) A staff memberwhose appointmentis terminatedfor reasonsof health
shall receivean indemnityequal to the indemnity provided under paragraph(a)
of the presentannex reducedby the amountof any disability benefitthat the
staff member may receive under the Regulation of the United Nations Joint Staff
PensionFund forthe number of months to which Che indemnityrate corresponds; (c) A staff member whoseappointment is terminatef dor unsatisfactory
services orwho for disciplinaryreasons is dismissed for misconductother than
by summary dismissal maybe paid, at the discretionof the Secretary-General, an
indemnitynot exceedingone half of the indemnity provided under paragraph (a)
of the present annex;
(d) No indemnity paymentsshallbe madeto:
A staff member who resigns,exceptwhere termination notice hab seen given
and the terminationdate agreed upon;
A staff member who has atemporary appointment that is notfor a fixed term
and thatis terminatedduring the firstyear of service;
A staff member who has a temporary appointment foar fixed term that is
completedon the expirationdate specifiedin the letter of appointment;
A staff memberwho is summarily dismissed;
A staff member who abandonshis or her post;
A staff memberwho is retiredunder the Regulationsof the United Nations
Joint Staff PensionFund;
(e) Staff members specificallyengagedfor conference and other short-term
serviceor for servicewith a mission, as consultantsor as experts,and staff
members whoare locally recruitedfor service in established officesaway from
Headquartersmay be paid termination indemnity if'and as provided in their
lettersof appointment. Annex IV
REPATRIATION GRANT
In principle,the repatriation grant shallbe payable tostaff members whom
the Organizationis obligated torepatriateand who at the timeof separation
are residing, by virtueof their service with thU enited Nations,outside their
cowntryof nationality. Therepatriationgrant shallnot, however, be paidto a
staff member whois summarilydismissed. Eligiblestaff members shallbe
entitledto a repatriationgrant onlyupon relocationoutsidethe country of the
duty station. Detailedconditionsand definitions relating to eligibility and
requisite evidence of relocationshallbe determined by the Secretary-General.
Staff member with
neither a spouse
nor dependentchild
at timeof separation
Staffmember with a
Years of continuous spouseor dependent Professional General
serviceaway from child at time and higher Service
home country of separation categories category
Weeks of gross salary, less staffassessment,
where applicablea or
Weeks of pensionableremuneration less staff
assessment,where applicableb
9 ...................
10 ...................
I1 ...................
12or more ...........
aFor staff inthe Professionaland higher categories and in the Field
Service category.
For staff inthe General Service and related categories. 4. The contributionsof Zimbahwc and Saint Vincent Rc~rJFrtnin t~c releva~~sttaff regulations,
and thc Grenadincsfor 1980and 1981shall bc applied to Awnl.eof thc absolute necessitythat staff membersbe
the samebasis of assessmentas for other McmbcrStates, enabled todischarge theirtasksas assigncdto then1by the
except thatin the caseof appropriationsor apportionmcnls Secrutacy-Gcnernl~s'ithouitntcrfercnceou thc part of any
approvedunder General Assemblyresolutions3417C of 3 hfcmber State or any otlrcr authority external to the
December 1979 and35/45 A of 1 December 1980for the Organization.
financingof the United Nations Disengage~nentObserver Renlizingthat staffmembcrsof thc specializedagencies
the financingof the United Nations Interim Force in Leb- and related organizationscnjoy similar privilegesand im-
anon, the contributionsof those States, as determinedby munities in accordancewith the instrumentsmentionedin
the groupof contributorstowhichthey may be assignedby the second preambularparagraphabove,
the Assembly,shall becalculated in proportion tothe cal- 1. AppealstoanyMcmberStatewhichhasplaced under
endaryear; arrcstor detentiona staffmemberof the United Nationsor
5. The advancesof Zimbabwe andSaint Vincent and ofa specializedagencyorrelatedorganizationto enablethe
the Grenadinesto the Working Capital Fund, under regu- Secretary-Generalor the executiveheadof the organization
lation 5.8 of the Financial Regulations of the United relevant multilateralconventionsand bilateral agreements,
Nations,shall be calculatedby the applicationof the rates to visit and converse with the staff member, toapprise
of assessmentof 0.02 and 0.01 per cent, respectively, to himselfof the groundsforthearrestordetention,including
the authorizedlevel oftheFund, such advancestobe added the main facts and formal charges, to enable him alsoto
to theFundpending the incorporationof the newMembers' assist the staff member in arranging for legal counseland
ratesof assessmentin a 100per cent scale. to recognize the functional immunityof a staff member
105thpletlnrymeeting assertedby the Secretary-Generalor by the appropriateex-
IS December1981 ecutive head, in conf rmity withinternationallaw and in
accordance with th,oprovisionsof the applicablebilateral
agreements betwqenthehostcountryandtheUnitedNations
361232. Respect for the privileges and immunities of orthe speciali5edagencyorrelatedorganizationconcerned;
officialsf the United Nations and the special- 2. Reqr5eifsthe Secretary-Generaland the executive -
ized agencies and related organizations headsof theorganizationsconcernedtoensurethatthe staff
TheGeneralAssemlrly, observ?,tgeobligationsincumbentuponthem,in accordance
Recallingits resolution35/212 of 17December 1980, with Jherelevantstaffrulesandregulations,the Convention
Recallingthe Conventionon the Privileges and Immu- on/tHePrivilegesandlmmur~ities of the UnitedNations,the
nitiesoftheUnitedNationsof 13February 1946,SS theCon- Convention on the Privilegesand Immunitiesof the Spe-
ventionon the PrivilegesandImmunitiesof theSpecialized/ /cImmunitiesof the International Atomic EnergyAgency;nd
Agenciesof 21 November 1917,s6the Agreementon the
Privilegesand Immunitiesof the InternationalAton~i/c.En- resolution to the attentionof all specialized agenciesand
I ergy Agencyof 1 July 1959 and the agreements,btween relatedorganizationsoftheUnited Nationssystem,withthe
I theUnitedNationsand the specializedagenciespridrelated requestthat they furnish informationto himon caseswhere
organizziionsand the respectivehost Governments, there are clear indicationsthat the principlesexpressedin
Notingthe report of the ~ecretary-~en~~~~~ paragraph1aboveor thestatusofthestaffmembersofsuch
I I Notingalsothepositionconsistentlyu held bytheUnited an organizationhave not been fully respected;
i Nationsin the event of the arrest andfetentionof Unit'd 4. RequeststheSecretary-Generaltosubmitto theGen-
Natiocsstaff membersby governmenfalauthorities, eralAssen~blyat each regular session, on behalf of the
Renfir~ningthe responsibilityand ?uthority of the Sec- Administrative Committee on Co-ordination, an updated
retary-Generalas the Chief Administrative Officerof the and comprehensiveannualreportrelatingto cases in which
UnitedNationsunder theCharter, \ the Secretary-Generalor the competentexecutivehead has
Mindfulof Article 100 of the Charter of the United not been able to exercise fully his responsibilityin respect
Nations, under which each Member State has undertaken of the protectionofstaffmembersof the United,Nationsor
to respectthe exclusivelyinternational characterof the re- ofaspecializedagencyorrelated organizationinaccordance
sponsibilitiesof the Secretary-Generaland the staffand not with the multilateral conventionsand applicable bilateral
to seek to influence them in the discharge of their agreementswith the host country.
responsibilities, 105thplenary meeting
Mindfulalso of the fact that under the same Articleof I8 DecemberI981
the Charter, theSecretary-Generaland the staff shall not,
in the performanceof their duties, seek or receiveinstruc-
tions fromany Governmentor from any otherauthority 361233. Report of the International 'Civil Service
externalto the Organization, Commission
Recallingthat the International Courtof Justice hasheld The GeneralAssetnbly,
sibilityto protectmembersof their staff,wer andrespon- Havbzg considered the seventh annualreport of theIn-
ternationalCivil ServiceCommission,s"
Recallingalso the obligationsof the staff in the conduct Recallingthat it established the Commissionfor thereg-
States,dutiestoobservethelawsandregulationsofMember ulationand co-ordinationof theconditionsof serviceofthe
United Nations commonsystem as setforth in article 1of
the staruteof the Commission. I
YIII. Resolutionsadoptedthereportsof the FifthCommittee 239
gencyof the Organization, partial or interim stepscould officialsand to refrain from any acts that would impede
enhance the liquidityof the Organizationand alleviateits such officials in the performance of their functions,
financialdifficultiesto some extent, thereby seriouslyaffecting the proper functioningof the
Noting with satisfactionthat the projecton the issueof Organization;
specialpostagestampson the socialandeconomiccrisisin 6. Calls uponall Member States currently holding
Africa is well under way, United Nationsofficialsunder arrest or detention, or oth-
1. Recallsthat it decided,by itsresolution39/239Aof erwiseimpedingthem in the proper dischargeoftheir du-
18December 1984,to placeonehalfoftherevenueearned ties, to reviewthesecases and to co-ordinate efforts.with
therefrom at the disposalof the Secretary-Generalforthe the Secretary-Generalto resolve each case with all due
implementation of objectives as detailed in the Declara- speed;
tion on the Critical Economic Situation in Africa,36 7. Callsuponthe staff of the United Nations and the
adopted by the General Assembly on 3December 1984, specializedagenciesand related organizations to comply
and to place the remaining half in a specialaccount; with the obligationsresulting from the StaffRegulations
2. Requeststhe Secretary-Generaltotakeallnecessary and Rulesofthe United Nations, in particular regulation
stepsto economizeon the operational expensesofthepro- 1.8,and fromtheequivalentprovisionsgoverningthestaff
ject on the issueof special,postagestamps with aviewto of the other agencies;
increasingthe net revenueand to submitafinancialreport 8. Callsuponthe Secretary-General, aschief adminis-
to the General Assembly at its forty-secondsession. trative officerof the United Nations, to continue person-
allyto actasthe focalpoint inpromoting and ensuringthe
lOlst plenary meeting observanceof the privilegesand immunitiesof officialsof
11 December1986 the United Nations and the specialized agenciesand re-
lated organizationsby using.al1such means as are avail-
Respect for the privileges and immunitiesof able to him;
41/205. officialsof the United Nationsand the special- 9. Urges the SecretaryrGeneral to give priority,
ized agencies and related organizations through theUnitedNations SecurityCo-ordinator andhis
.otherspecialrepresentatives,to the reporting and prompt
The General Assembly, follow-upofcasesof arrest, detention and other possible
matters relatingtothe security and proper functioningof
Recalling Article 100 of the Charter of the United Na- officialsofthe.UnitedNations and thespecializedagencies
tions, and related organizations;
Recallingthat, under Article 105of the Charter of the 10. Requeststhe Secretary-General, as Chairman of
United Nations,officialsofthe Organizationshallenjoyin the Administrative Committee on Co-ordination, to re-
the territory of each of its Member Statessuch privileges viewand appraisethe measures already takento enhance
and immunitiesasare necessaryfor theindependentexer- the proper functioning, safetyand protection of interna-
cise of their functions in connection with the Organiza- tional civil'servantsand to modifythem wherenecessary.
tion, which is indispensable for the proper dischargeof
their duties, 1Olstplenary meeting
Reaffirmingits previous resolutions,in particular reso- 11 December1986
lutions 39/244 of 18December 1984and40/258 Cof 18
December 1985,
Reireratingthe obligation of the staffin the conductof 41/206. Personnel questions
their duties to observe fully the laws and regulationsof
Member States,
1. Takesnote with concern of the report submittedto
the General Assemblyby the Secretary-General?'onbe- COMPOSInO N F THESECRETARIAT
half ofthe Administrative Committeeon Co-ordination,
and of a number of negative developments reported TheGeneralAssembly,
therein, which together represent a deteriorationof the RecallirtgArticle 101,paragraph 3, oftheCharter ofthe
situation with regard to the observanceof the principles United Nations, which states:
related to the respect for the privilegesand immunitiesof "The paramount consideration in the employmentof
officialsofthe United Nations and thespecializedagencies the staffand in the determ~nationof the conditionsof
and related organizations; service shall be the necessity of securing the highest
2. Takesnotewith particularconcernof the viewsex- standards of efficiency,competenceand integrity. Due
pressedbythe Secretary-Generalin paragraph 3ofhis re- regard shallbe paid to the importance ofrecruiting the
.Ort. staffon as wide a geographical basisaspossible",
Recallingits previous resolutions on personnel ques-
functioning, safety and well-beingof officials havebeen tions, in particular resolutions 33/143 of 2ODecember
adverselyaffected,includingcasesofdetentioninMember 1978,34/219 of20December 1979,35/210 of 17Decem-
States and abduction by armed groups and individuals; ber 1980, 37/235 of 21 December 1982, 39/245 of
18December 1984and 40/258 A of 18December 1985,
4. Also deploresthe increasing number of cases in Notingthat, despitethe suspensionofrecruitmentactivi-
whichthelivesand well-beingofofficialshavebeenplaced ties owingto the financialdifficultiesof the Organization,
injeopardy duringthe exerciseof their officialfunctions; vacant posts are being filled by internal candidates
5. Calls uponall Member States scrupulouslyto re- through promotion,
spect the privilegesand immunities ofall United Nations Concernedthat the targets set in the first phase of the
1986-19F~ 7:;~:Jit~~n p-lnto.frrecruitrnentwere not
aci~it-vcoccau>s.it~teruiiu,ofthe suspensiol~of recruit-
ment.$"
g
b., . VIII. Resolutionsadoptedon theortsof the Fifth Committee
tocomment,asappropriate, onthe recommendationscon- 2. Alsorakesnotewilltcorrcerrolf the informati0pi+
tained therein; other cquestionsinvol;ing the status, privilegeGlddim-
8; 13. Requeststhe Joint Inspection Unitto report tothe munities of officials;
$ GeneralAssemblyat itsforty-thirdsessiononthe progress
@ made in the implementationof the present resolution; 3. Further takensotewithconcerilof the restrictionson
14. Requeststhe Secrefary-Generalto bring the pres- duty travel of officialsas indicated in the report;
ent resolutiontotheattent~onofthe executiveheadsofthe
participating organizationsof the Joint Inspection Unit. 4. Deploresthe growing number of cases where the
99thplenarymeeting adverselyaffected,includingcasesofdetentionin Membereen
21December1987 States and abductionby armed groups and individuals;
5. Also deploresthe increasing number of cases in
42/219. Respectfor the privilegesand immunitiesof of- whichthe livesandwell-beingofofficialshavebeen placed
ficialsof theUnitedNations andthe specialized injeopardy duringthe exerciseof their officialfunctions;
agencies and relatedprganizations
6. Callsuponall Member States scrupulously to re-
TheGeneralAssembly, United Nations,the specializedagenciesand related orga-he
Recalling that, under Article 100of the Charter of the nizations and to refrain fromany acts that would impede
United Nations, each Memberof the United Nations un- such officials in the performance of their functions,
dertakesto respectthe exclusivelyinternational character thereby seriously affectingthe proper functioning of the
of the responsibilitiesof the Secretary-General and the Organization;
staffand hot to seekto influencethem in the dischargeof
their responsibilities, 7. Alsocallsuponall Member Statescurrently holding
Recallii~tghat, under Article 105ofthe Charter, alloffi- under arrest or detention officialsofthe United Nations,
cials of the Organization shall enjoy in the territory of thespecializedagenciesand related organizations,asspelt
each ofits Member Statessuch privilegesand immunities out in the Secretary-General's report,to enablethe Secre-
asarenecessaryfor the independentexerciseoftheirfunc- tary-General or the executive head of the orgaciization
tions in connection with the Organization, tion inherentin the relevant multilateral conventionsand-
RecallingtheConventiononthe Privilegesand Immuni- bilateral agreements,particularly with respect tomedl-
ties ofthe United Nations,sOthe Conventionon the Privi- ate accessto detained staff members;
legesand Immunities of the Specialized Agencies,SIthe
Agreementonthe Privilegesand Immunities of theInter- 8. Furthercalls upoirall Member States otherwise
national Atomic Energy Agencyand the United Nations impedingofficialsof theUnited Nations, specializedagen-
Developnlent Programme Standard Basic Assistance cies and related organizations in the proper discharge of
Agreements, their duties to reviewthe cases and to co-ordinate efforts
Recalling alsoits resolution76 (1)of 7December 1946; withtheSecretary-Generalor the executiveheadof theor-
- inwhichit approvedthegrantingofthe privilegesand im- ganization concerned to resolve each case with all due
, munitiesreferredto in articles V and VII of the Conven- speed;
tions to all membersof the staff of the United Nations, 9. Callsuponthe staffof the United Nations and the
specializedagenciesand related organizations to cornply
':- Reiteratinthe obligationofall officialsofthe Organiza- with the obligations resulting from the StaffRegul?tcons
tion intheconductoftheirduties to observefullythelaws and Rules ofthe United Nations, inparticular regulation
) and regulationsof MemberStates, 1.8,and fromthe equivalentprovisionsgoverningthestaff
Mindfulofthe responsibilities ofthe Secretary-General of the other agencies;
. to safeguard the functional immunity of all United Na- 10. Callsuponthe Secretary-General to use all such
-- tions officials, means as are available to him to bring about an expedi-
Mindfulalsoof the importance in this respect of the tious solution of the-cases still pending, which werere-
provisionbyMemberStatesof adequate and timelyinfor- ferred to in the report;
-- mation concerningthe arrest and detention of staff mem-
bers and, more particularly, their granting of access to 11. Also calls uponthe Secretary-General, as chiefad-
them, ministrativeofficeroftheUnited Nations, to continueper-
Bearingin mindthe wider considerations of the Secre- sonallyto actasthe focalpoint in promotingand ensuring
tary-General to guarantee minimum standards ofjustice the observanceofthe privilegv and immunitiesofofficials
and due processto United Nations officials, of the United Nations andthe specializedagenciesand re-
Reafirmingits previousresolutions, in particular reso- lated organizationsby using all such means as areavail-
lution41/205 of 11December 1986, able to him;
1. Takesnote with concero nf the report submitted by 12. Urges the Secretary-General to give priority,
the Secretary-Genera1,SoZn behalf of the Administrative through the UnitedNations Security Co-ordinator andhis
. - CommitteeonCo-ordination,and ofa number ofdevelop- other specialrepresentatives,to the reporting and prompt
: mentsindicatedtherein,in particular those regardingnew follow-upof cases ofarrest, detention and other po~sible
1 cases of arrest and detention and those regarding previ- matters relatingto the security and proper function~ngof
i ously reported cases underthis category; officialsofthe UnitedNationsand the specializedagencles
and related organizations;
.z 13. Requeststhe Secretary-General, as Chairman of
d $0Krsi~lu~io2A (I). the Administrative Committee on Co-ordination, to re-
@' 52A/C.5/42/14and Corr.1. viewand appraisethe measures already taken to enhance
I . . . .
-+?
272 General:isscmblg-lortpseconStbzion .. .- -
the proper functioning,safety and protection of interna- per echelons of the Secretariat, that is. the Under-
tional civilservants andto modifythen1where necessary. Secretary-GeneralandAssistant Secretary-Generallevels,
Reaffirmir~tghat nopostshouldbeconsideredthe exclu-
99t'rp'crrdry siveprr.seri.cofanyMemberState or group ofStates and
that the Secretary-Generalshould ens'urethat this princi-
ple isappliedfaithfullyinaccordancewith the principleof
42/220. Personnel questions equitablegeographicaldistribution,
Taking note of the negativeeffectof the reduction of
A postsonthe representationof MemberStatesin the upper
echelonsof the Secretariat,.
COMPOSITI OOFTHE SECRETARIAT 1. RequeststheSecretary-General,inorder to preserve
The GeneralAssembly, theprinciplesofequitablegeographical distributionandof
rotationintheupperechelonsoftheSecretariat,to ensure
that equalopportunity isgivento candidatesof all Mem-
I ber Stateswhenmakingappointments to all posts in the
Recalling Articles 100 and 101 of the Charter of the upper echelons;
United Nations, 2. ReafJirmsthattheSecretary-General,inmakingap-
pointmentstotheupperechelons, should striveto appoint ..
1 ) Recallingits resolutions351'210of 17December 1980, only a candidatefroma Member Stateother than that of .
41/206A of 11December 1986and 41/2 13of 19Decem- the incumbent to be replaced in order to reinforce the
ber 1986, principle of rotation in the upper echelons of the Se-
Taking note of the report of the Secretary-Generalon cretariat, unless there are exceptional Cir~~mStan~e~ in,
the composition of the Secretariat?3 the lightof Article 101,paragraph 3, of the Charter;
Recognizingthe importance of maintaining a qualified, 3- Requeststhe SecretaryGeneral to reviewthe corn-
independent and geographically balanced international position of the upper echelons of the Secretariat in the
civil service, contextofthe relevantrecommendationsofthe Group of
of High-levelIntergovernmental Expertsto Reviewthe Effi-
Concerned She negativeeffectofthe ciencyoftheAdministrativeand FinancialFunctioningof
distribution of the Secretariat,eze On the geographlcal theUnitedNations,with particular referenceto lengthof
servicein the upper echelons;
1. Urgesthe SecretaryGenefa1 to keep under review
thefreezeon the recruitment ofexternal candidateswith a
viewto liftingthe freezeat the earliestpossibledateand to I11
report to the GeneralAssemblyon possiblealternativesto Recallirlg its resolutions 35/210, 40/258 A of
the policy of suspendingsuch recruitment; 18December 1985and 41/206 C of 11 December 1986
2. Reqtieststhe Secretary-General, whenevermaking and otherrelevantresolutions,
appointments to Posts subject to geographicaldistribu- Havingexaminedtherep'ortoftheSecretary-Generalon
tion, to make every effortto recruit nationalsof unrepre- the systemofdesirableranges forthe geographical distri-
sented and underrepresented Member States and candi- bution ofstaffin the Professionalcategory and abo+e,s4
datessuccessfulin the national competitiveexaminations, 1. Requeststhe Secretary-Generaltobasethe desirable
taking info consideration '1'0 ~aagra~h 4 of resolu'ion rangesforall ~~~b~~ states, with from 1January
1 ) 41/206 A, 1988, onthe followingcriteria:
3- A'sorequeststhe as part the
elaboration of the career developmentpoliciesand prac- (a) Thebasefigureforthe calculationswillinitiallybe
ticesin the Secretariatand bearing in mindArticle 101of 2,700;
the Charter and resolution41/2 13,to giveurgent consid- (b) Theweightofthe membershipfactorwill be40per
eration to the necessityof increasing themobilityofstaff cent of the basefigure;
in the Professional categoryand, in particular,the move- (c) The population factor, which will'be allotteg a
mentofsuchstaffbetweenHeadquartersofficesand offices weightof5per cent,will bedirectly relatedto thepopula- ..
in the field; tionofMemberStatesand posts subjectto this factorwill
4. Further requeststhe Secretary-General, bearingin be distributed among Member States in pr?pofiion to -
mind resolution41/213, to conduct a comprehensivere- their population; 1
viewof the career developmentpoliciesand practices for (9 Thecontributionfactor willbebasedon thedistri- !
all staff,inparticular staffin.theGeneralServicecategory; butlon of the remainingposts among Member States in
proportion to the scaleof assessments;
I1 (e) The upper and lower limitsof each range will be
Recallingits resolutbn 41/206 B of 11December 1986 basedon a flexibilityof 15per cent upwards and down-
on the cOm~ositionof the upper 'echelonsof the wirds ,fromthe mid-point of the desirablzrange, but not
cretariat and its resolution1/213 by whichit, interalia, lessthan 4.8posts up and down, the upper limit of the
approved the recommendations of the Group of High- rangebeingnot less than 14posts;
levelIntergovernmentalExperts to Reviewthe Efficiency The base be adjusted wheneverthe
of the Administrative and ~i~~~~i~ ~l~ ~ ~ ~ io~f thei ~ ~ual number ofposts subjectto geographical distribution
United Nations," in pa*icular those the up- increasesor decreasesby 1W, theweightsof the threefat- .
i tors beingmaintained; ..
54A/C.5/42/7and Corr.1. VIII. Resolutions adoptedon the reportsof the FifthCommittee
General Assembly resolution 36/235 of 18 December 1. Thkesrlotewithcorzcerro tf the report of the Secre-
1981; tary-General,93submittedon behalfofthe Administrative
j. invites~~~b~~ ,state to continue to make volun- Committeeon Co-ordination,and of the de\relopmentsin-
tzry contributions,in linewith existingprocedures,to the dicated therein, in particular the significantnumber of
existinglanguagetraining facilitiesofthe united ~ ~ ~ i ~ ~ ~ ;w cases of arrest and detention and those regarding
4. Invitesthe Secretary-Generalto submit to the Gen- previously reportedcases under this category;
eralAssemblyat its forty-fifthsessiona report on the im- 2. Also takesnotewithcorlcert~ of the restrictions on
plementationof the present resolution. duty travel ofofficialsasindicatedinthe reportofthe Sec-
retarv-General:
84thplenary meeting 3. Furthertakesnote with concernof the information
21 December1988 contained inthereport ofthe Secretary-Generalrelatedto
taxation and the status, privilegesand immunitiesof offi-
cials;
43/225. Respect.for the privilegesand immunitiesofof- 4. Deploresthe increasein the number ofcaseswhere
ficiaIsofthe UnitedNationsand the specialized the functioning, safety and well-being of officialshave
agenciesand related organizations been adverselyaffected;
TheGeneralAssembly, 5. Also deploresthe increasing number of cases 1x1
Recalling that, under Article 100of the Charter of the whichthe livesand well-beingofofficialshavebeenplaced
United Nations; each Member of the United Nations un- injeopardy duringthe exerciseof their officialfunctions;
dertakes to respectthe exclusivelyinternational character 6. Callsuponall Member States scrupulouslyto re-
of the responsibilitiesof the Secretary-General and the spect the privilegesand immunities of all officialsof the
staffand not to seekto influencethem in the dischargeof United Nations and the specializedagenciesand related
their responsibilities, organizationsand to refrain fromany acts that wouldim-
Recallingthat, under Article 105 ofthe Charter, alloffi- pede such officialsin the performance of their functions,
cials of the Organization shall enjoy in the territory of thereby seriouslyaffectingthe proper functioningof the
eachofits Member Statessuch privilegesand immunities Organization;
asarenecesskryforthe independentexerciseoftheir func- 7. Callsuponthose Member States holdingunder ar-
tions in connection with the Organization, rest or detention officialsof the United Nations and the
Recallingthe ConventiononthePrivilegesand Immuni- specialized agenciesand related organizations to enable
tiesof the United Nations?' the Convention on thePrivl- the Secretary-Generzlorthe executiveheadofthe organi-
legesand Immunities of the SpecializedAgencies,92the zation concernedto exercise fullythe right of functional
Agreementonthe Privilegesand Immunitiesofthe Inter- protection inherent in the relevant multilateral conven-
national Atomic EnergyAgencyand the United Nations tionsand bilateralagreements,particularlywith respectto
Development Programme Standard Basic Assistance immediate accessto detained staff members;
Agreements, 8. Callsuponall Member States otherwise impeding
Recallingalsoits resolution 76 (I) of 7 December 1946, officialsoftheUnited Nationsandthe specializedagencies
inwhichit approvedthe grantingofthe privilegesand im- and related organizations inthe proper dischargeoftheir
munities referredto in articlesV and VII of the Conven- duties to reviewthe casesand to co-ordinateeffortswith
tion on the Privilegesand Immunities of the United Na- the Secretary-Generalor the executiveheadoftheorgani-
tions to all members of the staff ofthe United Nations, zation concernedto resolveeach case with all due speed;
9. Callsuponthe staffof the United Nations and the
Recallingitsresolution43/173 of9December1988con- specializedagencies andrelated organizationsto comply
of all persons under any form of detention or imprison-on . with the obligationsresultingfrom the StaffRegulatlons
ment, inchding the principlethat all personsunderarfest ! and Rules of the United Nations, in particular regulation
or detentionbeprovidedwhenevernecessarywithmedlcal 1.8,and fromthe equivalentprovisionsgoverningthe staff
care and treatment, of the other agencies;
C 10. Callsuponthe Secretary-General to use all such
Reiteratingthe obligationofall officialsoftheOrganiza- means as are availableto him to bring about an expedi-
tion intheconduct of their dutiesto observefullythe laws tious solution of the cases still pending,which were re-
and regulations of Member States, ferred to in the report;
Mindfulof the responsibilitiesof the Secretary-General
to safeguard the functional immunity of all United Na- II. Alsocallsuponthe Secretary-General,aschiefad-
tions officials, ministrativeofficeroftheUnited Nations,tocontinueper-
Mindful alsoof the importance in this respect of the sonallyto actasthe focalpoint in promotingand ensuring
provisionby Member Statesofadequate and timelyinfor- the observanceofthe privilegesand immunitiesofofficials
mation concerningthe arrest and detention ofstaffmem- ofthe UnitedNations and the specialized agenciesand re-
bers and, more particularly, their granting of access to lated organizations by using all such meansas are avail-
them, able to him;
Bearingin mind the wider considerationsof the Secfe- 12. Urges the Secretary-General to give priority,
tary-General to guarantee minimum standards ofjustlce through theUnited NationsSecurityCo-ordinatorand his
and due process to United Nations officials, other specialrepresentatives,to the reportingandpronlpt
follow-upof cases of arrest, detention and other possible
Reaffirmingits previous resolutions,in particular reso- matters relatingto the security and proper functioningof
lution 42/219 of 21 December 1987, officialsoftheUnited Nationsand thespecializedagencies
and related organizations;
91Resolution22A (1).
5%Resolution179(XI). 268 ..... . G-ncrn!..\ssc~l:~~.-
Invitesthe Commissionto make arrangements to al-
13. Reqlreststhe Secretary-Gencral, as Chairman of lowfor the fullestparticipation of organizations and staff
the Administrative Committee or1Co-ordirintion, to re-
viewand appraise the measures already taken to enhance representativesin all aspectsand at all stages of the com-
the proper functioning, safety and protection of interna- prehensive review;
tional civil servants and toodifythem where necessary. 3. Alsorequeststhe Commission to submit a compre-
84thplenarytnretit~g hensivereport to the General Asseniblyat its forty-fourth
21 December1988 sessiontogether with a preliminary assessment of the im-
pact ofthe relevantrecommendations therein on pension-
able remuneration;
43/226. United Nations commonsystem: report of the 4. Further requesttshe Commission in its reviewto be
International Civil Service Commission guided by the following:
TheGetleralAssembly, (a) The Commission should examine all elkments of
Havingconsidered the fourteenth annual report of the the present conditions of service, and after identifying
International Civil Service Commission94and other re- problemsrelatedto staffrecruitment, retention and mobii-
lated reports?5 ity should propose solutions to these problems;
(b) The proposed solutions should be accompanied by
an indicationoftheir financialimplications, together with
an estimate of the overall costs;
0 COMPREHENS REV IEW OF THE CONDITIONS OS FERVICE (c) The overallcostsshould, asfar as possible,becom-
OF THE STAFF IN THE PROFESSIONALAND HIGHER parable to the costs of the current remuneration system;
CATEGORIES (1) Comparator
Recallingthat, in section I11ofits resolution 42/221 of
21December 1987, it requested the International Civil (a) The Noblemaire principle should continue to
ServiceCommissionto undertake a comprehensivereview serveasthebasisofcomparisonbetweenUnited Nations
ofthe conditions of service of the staff in the Professional emoluments and those of the highest-paying civil ser-
and higher categoriesin order to provide a sound and sta- vice-currentlythe United Statesfederal civilservice-
ble methodological basis for their remuneration, which,byitssizeand structure, lends itselfto such com-
Reaffirmingthe provided insection111,para- parison;
graph 1, of resolution 42/22 1, (b) The Commissionshould review how bestthe ap-
plication of the Noblemaire principle can ensure the
Recallingalsothat, in section111,paragraph 2,ofresolu- competitiveness ofUnited Nations remuneration with-
tion 42/221, the Commission was requested to submit to out resorting to comparison with the private sector;
the General Assembly at its forty-third sessiona prelimi- (c) In this connection the Commission should un-
nary report on the comprehensive review containing an dertake a comparative study of the concept of the mar-
analysis of the subject, together with an outline ofone or ginincludingthe wayin ~vhichit is intended to compen-
more possible alternatives, sate for expatriation;
Notingthat the preliminary report on the comprehen-
sive reviewcontained in chapter 111,section C, of the re- (2) Remunerationsystem
port of theCommi~sion,9~ doesnotcontain the analysisre- (a) A singleworld-widesalary scaleshould bea fun-
quested, damental goal of the remuneration system. Within this
Bearingin mind that the Commission should allocate framework,a reviewshould bemade ofhowbest special
the highest priority to the comprehensivereviewinitspro- recruitment needscan be accommodated. The Commis-
' ) gramme of work for 1989, sion should look into the present multiplicity of salary
scaleswithaviewto their correlation and possibleamal-
Recognizingthat the scope of the review should not gamation;
necessarily be limited to the four areas identifiedby the
Commission in its preliminary report, (6) In the context of equalizing purchasing power,
Mindful of the interrelationship between these four the Commissionshould consider among othki alterna-
areas and ofthe need for conditionsof servicewhosecom- tives:
ponent parts are appropriately balanced, (i) The division of the pay package into its major
componentparts, one ofwhich would behousing,
Emphasizing,in the light ofthe long-term consequences reflectingthe spending patterns -ofstaff;
of this review, the desirability in the review process for (ii) Major simplification of the post adjustment sys-
closeco-operation between the Commission,the organiza- tem, including eliminating negative post adjust-
tions of the United Nations common systemand the staff ment, separating out the housing component,
representatives, streamlining the cost-of-living survey and com-
1. Requeststhe International Civil Service Commis- putation process;
sion, as a priority, to pursue the comprehensive review
and, if necessary, to adjust its programme of work and , (c) The.Commissionshould also reviewthe rationale
schedule of meetings for 1989,in order to provide.condi- and magnitude of all elements of remuneration;
tions for substantive discussion and finalization of the (3) Motivationandprodtlctivity
comprehensive review at its second session of 1989;
Consideration should be given to enhancing produc-
tivity through the introduction of incentives for merit
rl~cGerrerolAssembly, Forcy-rl:irdSL)SS~OI~. rewards on promotion payable on a one-timebasis.
Strplcn~rt1%~.30 and corrigendu(A/43i30 andCorr.1). coi~pledwith less finoricialreward for ionpevity.which
4: Ibid., Sttpplemetir 7Y(.4/33/7 and Add.1-15). docurnr'nr should be linked to a more rigorous performance ap-
A/43/7/AJd.3; and A/C.5/43/11 and .4dd.1. A/C.5/43/19,A/ praisal system.Corisiderationshould alsobegivento the
C.5/4j.'21at~A/C.5/43/26. intrsiiuction of administrative arrangemenis and cf WI. Resolutionsadopted the
: 5. Requeslsthe Secretary-General to make everyef-
,,fort to increase the representation of women from
: those countries with a lowrepresentation of women; United Nations Development Programme Standard
6. Also requests the Secretary-General, in accor- BasicAssistance Agreements,
7 djnce withGeneral Assemblyresolution 441185Cof 19 Stressing that respect for the privilegesand immuni-
December 1989, to develop an action programme for ties of officialsof the United Nations and the special-
the advancement of women in the Secretariat for the ized agencies is becomingeven more imperative owing
period 1991-1995,incorporatingas necessarythe unful- to the growing numberof assignmentsentrusted to the
filledpoints of the 1985-1990action programme and to organizations of the United Nations system by the
report thereon to the Assemblyat itsforty-sixth session; member States,
7. Furtherrequests the Secretary-General to include Recalling its resolution76(I) of 7December 1946,in
in the action programme for the advancement of whichit approvedthegranting of the privilegesand im-
womenin the Secretariat for the period 1991-1995: (a) munities referred to in articles V and VII of the Con-
a comprehensive evaluation and analysisby the Secre- vention on the Privilegesand Immunitiesof the United
tariat of the main obstacles to the improvement of tlie tions,with the exceptionof those who are recruited lo-
- status of women in the Organization; (b) proposed
measures to overcome the underrepresentation of callyand are assigned to hourly rates,
womenfrom certain Member States; and (c) a detailed Abo recalling its resolution 431173of 9 December
Trogrammeof activities, including monitoring proce- 1988,to which isannexedthe BodyofPrinciplesforthe
.lures and a timetable for their completion; Protection of All Persons under Any Form of Deten-
8. Requests the Secretary-General to maintain the tion or Imprisonment, including the principle that all
existingSecretariat machineryand to consider the ade- persons under arrest or detention shall be provided
quacyofthe existingmachineryto implement the action whenever necessarywith medical care and treatment,
programme,taking accountof the work-loadsinthe rel- Reiteratingthe obligationof all officialsof the Orga-
evant offices, and to report thereon when submitting nization in the conduct of their duties to observe fully
:.the action programmefor the period 1991-1995; both the laws and regulations of Member States and
9: Requests Member States to continue to support their duties and responsibilitiesto the Organization,
the efforts of the United Nations, the specializedagen- Affirming that persistent obstruction of the exercise
ciesand related organizationsto increase the participa- of the duties of United Nations officialsconstitutes an
tion of women in the Professionalcategoryand above obstacleto the implementation ofthe missionentrusted
by, interalia,nominating more women candidates,es- by the member States to the organizations of the
pecially for senior policy-level and decision-making United Nations systemand may affect programme de-
posts, byencouragingwomen to apply for vacant posts livery,
and by creating national rosters of women candidates Mindful of the responsibilitiesof the Secretary-Gen-
tobe.shared with the Secretariat, specialized agencies eral to safeguard the functional immunityof all United
and related organizations. Nations officials,
--.--:r-.
72ndplenarymeeting Mindfulalso of the importance 'inthisrespect of the
21December 1990 provision by Member States of adequate and immedi-
ate information concerningthe arrest and detentio~of
staffmembers and, more particularly,their granting of
51240. Respect for the privileges and immunities of accessto them,
officials of the United Nations and the spe- Bearingin mind the considerations of the Secretary-
cialized agenciesand related organizations General to guarantee appropriate standards of justice
and due process to United Nations officials,
-" TheGeneraA l ssembly, Reaffirming its previousresolutions on this subject,
. . Recallingthat, underArticle100 of the Charter of the
United Nations, each Member of the United Nations 1. Takesnotewithgraveconcern of the report of the
undertakes to respect the exclusively international Se~retary-General,3~submitted on behalfof theAdmin-
character of the responsibilities of the Secretary-Gen- istrative Committee on Co-ordination, and of the de-
eral and the staff and not to seek to influence them in velopments indicated therein, in particular the signifi-
the discharge of their responsibilities, cant number of new casesof arrest and detention;
Alsorecalling that, under Article 105of the Charter, 2. Deplores the incrcase in the number of cases
a11officialsof the Organization shall enjoyin the terri- wherethe functioning,safetyand well-beingof officials
tory of each of its Member States such privileges and havebeen placed injeopardy;
immunities as are necessaryfor the independent exer- 3. Alsodeplores the disregard for Article 105of the
-. ciseof their functions in connection with the Organiza- Charter of the United Nations displayedbysomeMem-
' tion, ber States;
1 f Furtherrecallin the Convention on the Privilegesand spect thc privileges andimmunities enjoyedbyofficials
, Immunitiesof the United Nations:' the Convention on of the United Nations andthe specializedagenciesand
the Privilegesand Immunitiesof the SpecializedAgen-
ti 3Resolution179(11).
,Z 37Resolution22A(I). 3A/C5/45/10and Corr.1.
tj related organizations and to refrain from any acts that ties of officialsof the United Nations and the special-
would impedesuch officialsin the performance of their ized agencies and related organizations by using all
functions, thereby seriously affecting the proper func- such meansas are available to him;
tioning of the organizations; 16. u16cJ dii hlbiiib~rStates that have not yet be-
5. Uqes Member States and others responsible for come parties to thc existing international legal instru-
. thc illegal detention of United Nations staff members ments coveringthe question of privilegesand immuni-
to release them immediately; ties of officials,in particular to the Convention on the
Privilegesand Immunities of the United Nations3'and
6. Calls uponthe Secretary-General to use all such the Conventiononthe Privileges and Immunitiesofthe
means as are available to him to bring about an expe- SpecializedAgencies:* to do so promptly;
ditious solution of the cases still pending, which were
referred to in his report; 17. Welcomesthe advisoryopinion of 15December
7. Urgesthe Secretary-General to give priority to 1989of the International Court ofJusticeon the appli-
the prompt follow-up of cases of arrest, detention and cabilityof article VI, section22, of the Conventionon
other possible matters relating to the security and the Privilegesand Immunities of the United Nations40
proper functioning of officials of the United Nations that this section is applicable to persons other than
and the specialized agenciesand related organizations; United Nations officials to whom a mission has been
entrusted by the Organization and who are therefore
8. Calls uponthose Member States holding under entitled to enjoythe privilegesand immunitiesprovided
arrest or detention officialsof the United Nations and for in that sectionwith a viewto the independent exer-
the specialized agencies and related organizations to cise of their function;
enable the Secretary-General or the executivehead of 18. Requeststhe Secretary-General,as Chairman of
the organizationconcerned to exercisefullythe rightof the AdministrativeCommittee on Co-ordination, tore-
functionalprotection inherent in the relevant multilat- view and appraise the measures already taken to en-
eral conventions and bilateral agreements, particularly hance the proper functioning, safety and protection of
with respect to immediate accessto detained staffmem- international civilservants;
bers;
9. Calls uponall Member States to take the neces- 19. Also requeststhe Secretary-General, in compil-
sary measures in order to promote knowledge of and ing the information for incorporation into the reports
compliance with the Body of Principlesfor the Protec- on privilegesand immunities of officialssubmitted on
tion of All Persons under Any Form of Detention or behalf of the AdministrativeCommittee on Co-ordina-
Imprisonment, including the principle that all persons tion, to include, to the extent possible, the viewsof the
under arrest or detention shall be ~rovidedwhenever Member States.
necessarywith medical care and trgatment;
72ndplenary meeting
10. Affirms that, in providing medical assistance, 21December1990
thc use of independent medical teams should be con-
sidered;
11. Calls uponthe staff of the United Nations and 451241. United Nations common system: report of
the specialized agencies and related organizations to the International Civil ServiceCommission
comply fullywith the provisions of Article 100 of the TheGeneralAssembly, *.
Charter and with the obligations resulting from the
Staff Regulations and Rules of the United Nations, in Havingconsideredthe sixteenth annual report of the
I ) International CivilService Cornmis~ion~a ~nd other re-
particular regulation 1.8, and from the equivalent pro- lated
visionsgoverningthe staff of the other agencies;
12. Takes note with concern of the restrictions on
duty travel of officialsas indicated in the report of the 1. Reaffirmsthe central role of the International
Secretary-General; CivilServiceCommission in the regulation and co-or-
13. Also takesnote withconcernof the information dination of conditions of service, includingpensionable
contained in the report of the Secretary-General re- remuneration of all graded and ungraded staff, of the
1 United Nations common system;
lated to taxation on salaries and emoluments, and re-
queststhe Member States concerned andthe Secretary- 2. Endom the efforts of the Commissionto main-
\ be taken;o agree urgently on the appropriate action to tain the integrity and unity of those conditions of ser-
vice inorder to strengthen the effectivenessof common
14. Callsuponall Member States otherwiseimped- system activities and to ensure equity of treatment of
ing officialsof the United Nations and the specialized all staff;
agencies and related organizations in the proper dis- 3. Reiterates itsrequestto the Secretary-General and
charge of their duties to reviewthe casesand to co-or- to the executiveheads of the organizations of the com-
dinate their efforts with the Secretary-General or the
executivehead ofthe organization concernedto resolve 40~ppli~obiliroyf ArtVI,Sectiorr22, of the Convenrionon the
each casewith all due speed; Reions1989p.177.unitiesoftheUniredNar, dvisoryOpini,.C.J.
OficiolRecor* ohe GtwcralAssembly,Fony$f!hSessionSU&
15. Callsupon the Secretary-General, as chief ad- plemenrNo.-30andaddendum(A145130andAdd.1).
I? ministrative officer of the United Nations, to continue 42Ibid.Su plemenrNo. 9 (A/45/9);ibid.,Supplr o. 7 (Al4Si7
II personally to act as the focal point in promoting and and~dd.1- docum,entAl45tliAdd.7;andA/C.5/45~, lC.5/45RJ
ensuring the observance of tho privilegesand immuni- andhlC.5Mh3.
2
4 1
Q .f GeneralAssembly-Forty-seventh Sea-'
CONTENTS
Resolullon
No. Tirle
47/28 Respectfor theprivilegesand immunitiesof officialsof the UnitedNationsand
thespecializedagenciesand related orgsA147170.............. 112(b) 25November1992 243
FinancingoftheUnitedNationsOperationin Somalia(N4.).......... 145 1December1992 244
JointInspectionUnit(A118)....................................... 109 22December1992 245
Patternof conferences(N471806)
Resolution.....................................................110 22December1992
Resolution.....................................................110 22December1992
ResoiutiCn.....................................................110 22December1992
Resolution......................;............................ 110 22December1992
United Nations pensystem(Al47180............................... 114 22December1992
Financingofthe United Nations DisengagementObserAe1471819... 115(a) 22December1992
Financingofthe UnitedNationsInterimForce inLebanon(A........ 115(b) 22December1992
Financingof,theUnitedNationsIran-IraqMilitaryObserverGrou..)14718116 22December1992
Financingof theUnitedNationsTransitionAssista(A147182 ..).... 118 22December1992
Financingof theUnitedNationsIraq-KuwaitObservation~ission .3)471120(a) 22December1992
FinancingoftheUnited Nations Transitional nCambodia(A1471824) 123 22December1992
Financingofthe UnitedNationsProtection Force(................ 137 22December1992
Financial reportsauditedfinancial statementsa,ndreportsof the Boardof
Auditors(N471827............................................... 23December1992 258
Reviewof the efficiencyof the administrativeand financiof thectioning
UnitedNationsandprogrammebudgetforthebiennium1992-931471830) 103 23December1992 259
Proposed programeudgetoutlineforthebiennium1994-9A5147183..) 103 23December1992 260
Programme planni(N471828 ....................................... 105 23December1992 261
Improvingthefinancialsituationof the UnitedNations........... 106and 23December1992 265
107
UnitedNationscommonsystem: reporotftheInterl ivil ServiceCommis-
sionAT47lS3 1)................................................. 23December1992 266
Establishmentofa Peace-keeping Reund(A147183................. 23December1992 ' 272
Administrativeand budgetary aspectsof the financing ofthe United Nations
peace-keepingoperations(N471.................................. 23December1992 273
Questions relating to the programme budgetfor the biennium 19924993
(N471835 ....................................................... 23December1992 274
Programmebudgetfor thebiennium1992-1931471835)
A. Revised.budgetappropriationsfeiennium1992-1993.......... 23December1992 . 277
B. Revised incomeestiniatesfor thebiennium1................ 23December1992 279
C. Financingof appropriationsfor tr99....................... 23December1992 280
41/28. Respect for the privileges and immunities of the exclusively international character of the respon-
:: officialsof the UnitedNationsandthe special- sibilities of the Secretary-General and the staffnd
..... izedagenciesand rclated organizations not to seek to influencethem in the discharge of their
.. responsibilities,
-v...GeneralAssembly,
:?Recallinthat, underArticl105 of the ChaFerof the FurtherrecallingtheConventionon the Privilegesand
$ted Nations, all officialsof the Organization shall Privilegesand Immunitiesof the SpecializedAgencies:
9p.Y in the territoryof eachof its MemberStatessuch theAgreementonthePrivilegesandImmunitiesoftheIn-
Pnvllegeasnd immunitiesas are necessaryfor the inde- ternationalAtomicEnergAygency andtheUnitedNations
pendenetxerciseof thcirfunctionsinconnectionwith theDevelopment Programme Standard Basic Assistance
LOgaization, Agreements,
,g~ls~recollingthat, under Artic100 of theCharter*
yh Memberof theUnitedNationsundertakesto Stressinthat respectfor the privilegesandimmunities 241 GeneraAssembly-Faty-scvcnthSesslnn
- .-- ...- 1
of officialsofthe United Nations and thespeciagen-d programmesassigned to the organizationsof thunited
ciesis becomingevenmoreimperativeowingtothegrow- Nationssystem byMember States;
ing numberof assignments entrusted tothe organizations 10. Requeststhesecretary-~encral andMembershtes
of theUnitedNations system by MemberStates, tocontinue theirefforts to ensurerespect for theprivil
Recallingits resolution 76 (I) of 7 December 1946,inand immunitiesof officials, and requeststhe Secret
whichit approvedthe grantingof theprivilegesandimmu- Generalto continue to submit,on behalfof the ~d~tz
nities referredto in articlesV and VIIof the ConventionrativeCommitteeon Coordination,reports thereontothe
on the Privileges and Immunities of the United NationsGeneral Assembly. .--
to all members of the staff of the United Nations, with
the exceptionof those who arerecruitedlocally and are ,725November1992ting
assignedto hourly rates,
Also recallingitsresolution431173of9December1988,
to which is annexedthe Bodyof PrinciplesfortheProtec-47/41. Financing of the,United Nations Operation in
tion of All Persons underAny Form of Detentionor Im- Somalia
prisonment,including'the principle that allpersonsu'der
arrest or detention shallbe provided whenever necessaryTheGeneralAssenlbly,
with medicalcare and treatment, Havingconsideredthe report of the Secretary-General-
Reiteratingthe obligationof all officialsofthe Organi-the financing of the United Nations Operation in
zation in the conduct of their dutiesto observefully bothliaSandtherelated reportof the AdvisoryCommittee-
0 the lawsandregulationsof Member Statesandtheir dutiesonAdministrativeand BudgetaryQuestions: i
and responsibilitiesto the Organization, BearinginmindSecurity Council resolution751(1992)
Mindfulof the responsibilitiesof the Secretary-General4 April1992,by which the Council,interalia, decided
to safeguardthe functionalimmunityof allUnitedNationstoestablishunderits authority a UnitedNationsOpera-.on
officials, in Somalia, requested the Secretary-General to deploy
.-. Mindfulalso of the importance in this respect of theilitary observersto monitor the cease-firein Mogadishu
provision by Member States of adequate and immediate and agreed, in principle, to the deployment of a United
informationconcerning the arrest anddetentionof staffNations security force under the overall direction o4the
membersand,moreparticularly,theirgrantingof accessto Special Representative of the Secretary-General to pro-
them, vide security and to escort deliveries of humanitarian1
Bearing in mind the considerations of the Secretary-upplies, I
Generalto guarantee appropriate standardsofjustice and Bearingin mind also Security Councilresolution 767 ,
due processto United Nations officials, (1992)of 27 July 1992,by which the Council,inter alia,
1. Takesnotewithgrave concernof thereportsubmit- Somaliaas part of the consolidated Operationin Somalia
ted by the Secretary-General4on behalfof themembersofandCouncilresolution 775 (1992)of 28August 1992,by j
the AdministrativeCommitteeon Coordination,andof the whichtheCouncil, interalia, authorizedtheincreaseinthe
developmentsindicated therein; strengthof the Operationin Somalia,
2. Strongly deplores the unprecedentedand still in-
creasingnumberof fatalities which haveoccurredamong are expenses ofthe Organization tobe bprne by Memberia
United Nations personnel, including thoseengaged in Statesin accordancewith Article 17,paiagraph 2, of the
peace-keepingoperations; Charterof the United Nations,
0 3. Deplores the continuing existenceof cases where
the functioning, safety and well-beingof officials havcausedby the Operationin Somalia, a differentprocedures
been placedinjeopardy; is required from the one applied to meet expendituresof
4. Condemnsand deplores the disregard for Article theregular budgetof the United Nations,
105oftheCharteroftheUnitedNationsdisplayedby some Takingintoaccountthe factthat the economicallymore
MemberStates; developedcountries are in a position to make relatively
I larger contributionsand that the economicallylessdevel-
I 21 December1990; its entirety its resolution 451240of oped countries hava relatively limited capacityto con-
1/ tributetowardssuch an operation,
United Nations medical teams todetained staff,and re-
quests Member States to facilitatemedical care deemed permanentmembersof the Security Council,as indicatedtes
ij necessaryby such teams; in General Assembly resolution 187(S-IV) of 27 June
I. 1963,in the financingof such operations,
ii measurestoensurethe safety ofUnitedNationspersonnel, Mindfulofthe factthat itis essentialtoprovide theOp-
as well asthose,engaged in peace-keepingandhumanita- erationin Somaliawith the necessary financial resources
rian operations; to enableit to fulfil its responsibilities underthe relevant
resolutionsof the Security Council,
safety of peace-keepingand all United Nationspersonnel
on theirtenitory; contained in the report of the Advisory Committee on
,. ..,.., 9-'"'Srrong~~!rmsthat disregardfortheprivilegesand Administrativeand Budgetaryquestion^;^
g~.;-.L..:,--y-~t;.~-~fj$?f$~ialShas always constituted one of the
--.~l.i~&~%~~&&~~,~,~~~~el$@ementati of the missionsand internal control on all financial transactions, includingstaff, areportonthehiringand useof consultants,following promotionto the Professionalategoryofstaff
theformatofpast reportsonthe subject;I2' members fromothercategories;
VII.REPORTINGTOTHEGENERALASSEMBLY (ix) career developmentpolicy;
(x) Linguisticqualificationsin the contextof the
~e~u& the Secretary-Generatlo submitto theGeneral performance appraisal system and the
Assembly,undertheappropriateagendaitems, reportson the recruitmentandpromotionpolicy;
followingquestions:
(xi) The feasibility of holding the national
(a) Assoonaspossible competitive examinationsin the six official
languages,includingproposalsto ensure that
AfamilyleaveprogrammeforUnited Nations staR nationals of Member Stateswhose mother
(6) Atitsresumedfif&$rst session tongueisnot an officiallanguageoftheUnited
Nationsare notplacedat adisadvantage;
Thefindingsofthe reviewofthefirst cycleofthe
performanceappraisalsystem; (xii) Mobility;
(xiii) The efforts madeby the Secretary-Generatlo
(c) At.itsfifp-secondsession achieve the levelof 70 per centof permanent
Theappropriate action takenagainstpersonnel appointmentsin postssubjectto geographical
(i) distribution;
responsiblefor malpracticesidentified bythe
BoardofAuditors; (xiv) Detailedproposals fortheimplementationof
(ii) qomprehensive policy guidelines on a dual-tracksystemof careerandnon-career
appointments;
consultants, to be submitted through the
Advisory Committeeon Administrativeand (xv) Thehiring of retireesand thehiringand useof
BudgetaryQuestions; consultants.
(4 Atitsfifp-third session 9jthplenarymeeting
Information on measures taken to ensure 3Apri11997
(i)
equitablerepresentationfMemberStatesat the
senior and policy-making levels of the 511227. Respect for the privileges and immunitiesof
Secretariat,to be includedin thereport onthe officials of the United Nations and the
compositionoftheSecretariat; specializedagenciesand related organizations
(ii) The fullimplernentationofthe strategyforthe TheGeneralAssembly,
managementof the human resourcesof the
Organization; Recallingthat, underArticle 105of the Charter of the
United Nationsa,llofficialsofthe Organizationshall enjoyin
(iii) Delegationofauthority; the territory of each of its Memberssuch privilegesand
The simplification and streamlining of all immunitiesasare necessary forthe independent exercisoef
(iv) theirfunctionsinconnectionwiththe Organization,
personnel rulesandprocedures;
(v) Staff-managemenc tonsultativemechanisms; Alsorecallingthat,underArticle100oftheCharter, each
Member of the United Nations undertakesto respect the
The practices of Member States relative to exclusively internatioclharacteroftheresponsibilitiesof the
(vi) nationalstaffrepresentation; Secretary-Generalandthe staffand not to seekto influence
theminthedischargeoftheir responsibilities,
Proposalsontheintroductionofaprobationary
(vii) period for successful candidates in the Further recallingthe Conventiononthe Privilegesand
competitiveexamination forpromotion to the Immunitiesof the UnitedNations,'*'the Conventionon the
Professional categoryof staff membersfrom PrivilegesandImmunitiesofthe SpecializedAgen~ies,'~ the
Agreement on the Privileges and Immunities of the
other categories; Internationl tomicEnergy AgencyIza4ndtheUnitedNations
(viii) The question of geographical imbalance Development Programme Standard Basic Assistance
Agreements,
resulting from promotions of successful
candidatesin the competitiveexamination for
12Resolutio22 A (1).
I?Resolution179(11).
,4111.533,ara.43. I?UnitedNations ,reatSyerie s,l374,p. 147. Sfrasingthat respectfortheprivilegesand immunitiesf 3. Deplores the risks confronting United Nations
officialsoftheUnitedNations and thespecializedagenciesis personnel,including those engagedin peacekeepingand
becomingevenmore imperativeowing to the growingnumber humanitarianoperationsandlocally recruitestaff;
of assignments entrusted by Member States to the
organizationsof theUnitedNationssystem, 4. Requeststhe Secretary-Generalto submit tothe
GeneralAssemblyat its fifty-secondsession a report on
Recallingitsresolution76(I) of 7 December1946,in respectfor theprivilegesand immunitiesof officialsoftile
which it approved the granting of the privileges and UnitedNations and the specialized agenciesand related
immunitiesreferredtoinarticleV and VIIoftheConvention
organizationsaswellastheir securityandsafety;
onthe Privilegesand ImmunitiesoftheUnitedNationsto all 5. Alsorequeststhe Secretary-Generatlopayspecial
members ofthestaffofthe UnitedNations,withtheexception anentiontoMemberStates' restrictions,hichmayimpedethe
of thosewhoarerecruitedlocallyand areassignedto hourly
rates, abilityofofficialsof the UnitedNationsandthe specialized.
agenciesandrelatedorganizationstocanyout theirfunctions,
Alsorecallingitsresolution431173of9December 1988, andtoreportthereontotheGeneral Assembly at itsfifty-third
towhichisannexedthe Bodyof PrinciplesfortheProtection session.
ofAllPersonsunderAnyFormofDetentionorImprisonment,
including the principle that all persons under arrestor 95thplenarymeeting
detention shall providedwhenevernecessarywith medical 3April1997 ..
careandtreatment,
511228. Financing of the Military Observer Group of
Reiterating the obligation of all officials of the the United Nations Verification Mission in
Organizationin the conductof their dutiesto observefully
both the lawsand regulationsof Member Statesand their G~atemaia'~'
dutiesandresponsibilitiesto the Organization, TheGeneralAssembly,
Mindf;Iofthe responsibilityoftheSecretary-Generatlo Havingconsidered thereportoftheSecretary-Genera oln
safeguard the fUnctiona1immunity of all United Nations the financingof the Military Observer Grouof the United
officials, Nations Missionforthe VerificationofHumanRightsandof
Compliancewith the Commitmentsof the Comprehensive
Mindjirlalso of the importancein this respectof the
immediate provision by Member States of adequate AgreementonHumanRightsinG~atemala'~a'ndthe related
informationconcerning the arrest and detention of staff report of the Advisory Committeeon Administrativeand
membersand,more particularly,of their granting accessto Budgetary question^,'^^
them,
RecallinSecurityCouncilresolution 109(41997)of20
Bearing inmind the responsibility of theSecretary- January.1997i,nwhichtheCouncilauthorizedtheattachment
General toguaranteeappropriatestandardsofjusticeand due to theUnitedNationsMissionfor theVerificationofHuman
processtoUnitedNations officials, Rightsand of Compliancewith the Commitmentsof the
ComprehensivA egreementon HumanRightsinGuatemala of
Recallingthe relevantconventionasndalsoitsresolution agroupof onehundred and fifty-fivemilitary observerand
49/59 of 9 December 1994, by which it adopted the requisitemedicaplersonnel foraperiodofthreemonths.
Conventiononthe Safety of UnitedNationsand Associated
Personnel,anditsresolution511137of 13December1996, Recognizingthat the costs of the Observer Groupare
expensesof the OrganizatiotnobebornebyMemberStatesin
1. Take noteofthereportoftheSecretary-Generao ln accordancewithArticle17,paragraph2, oftheCharterofthe
respect for theprivileges andimmunitiesof officialsof the UnitedNations, . .
United Nations and the specialized agencies and related
organizationas wellas theirsecurityandsafety,It5and ofthe Recognizingalsothat, inordertomeettheexpenditures
statementmadetothe Fifth CommitteebytheUnited Nations caused by the Observer Group,a different procedure is
SecurityCoordinatoron 15October1996;126 requiredfromthatappliedto meetexpendituresofthe regular
budgetof the UnitedNations,
2. Expressesits deepappreciationtoUnited Nations
personnel, includingthose engaged in peacekeepingand Takingintoaccountthe factthat theeconomicallymore
humanitarianoperationsand locallyrecruitedstaff, fortheir developedcountriesareinapositionto make relatively larger
efforts to contributeto achieving peaceand securityand to contributions andthat the economically less developed
alleviating thesuffering of the people living in areas of
':'Inaccordancweitresolutiq511198 B, aragrap5,theUnited
conflict; NationsMissionfor theVenfieationof Ruman Rightsand of
Complianc weiththeCommitmeno tsftheComprehensivegreement
on Human RightsinGuatemalhaasbeenrenamedtheUnitedNations
NC.515 10. VerificatiblissioinGuatemala
'2See O#cialRecordsoftheGeneral Assemb ly,ty-firstSession,12N511815.
F$h Committee7thmeeting(NC.515 1/SR.7)and corrigendum. '"A1511826. General Assembly
Distr .
f !\I ;l-,i>* GENERAL
t,; ,.I$.1,,.?,
A/C. 5/36/31
4 November 1981
... ORIGINAL: ENGLISH
.. ..1 . '..
session
pen da item 107
i i
PERSONNEL QUEST IO.NS
+..
Respect for the privileges and immunities of officials
of the United Nations and the s@ecialized agencies
Report of the Secretary-General
,.
1980, the General Assembly appealed to all
and immunities accorded to officials of the
Nations and the specialized agencies by the Wnventions on the privileges
of the United Nations and of the Specialized Agencies. The
was requested to bring the resolution to the attention of all
and bodies of the United Nations system and to report to the
of the Pdrninistrative omnittee on Co-ordination (RCC),
status of the staff members of the
g~~anization or of the specialized agencies had not been fully respected.
&-.
6. Pursuant to paragraph 2.of resolution 3512 2, on 6 February 1981 the Legal
bunsel addressed letters to the specialized agencies, the International Atomic
5Energy Agency (IAEA) and the General Agreement on Tariffs and Trade (GATT), as well
$as to the appropri'ale offices and organs of the United Nations system, drawing to
8!their attention the text of the resolution and requestitq any re levant in£ ormation.
:.3* At its first regular session in 1981, ACC adppted decision 1981/8, in which it
:took note of General Assembly resolution 35/212 and concluded that for the purposes
:Of furnishing in£ ormation:
(a) The law governing the status, privileges and immunities of staff members
should consist principally of the Charter of the United Nations and other
'.constituent instruments of the organizations concerned, the Conventions on the
:.Privileges and Immunities of the United Nations, of -the specialized agencies and of
;.I~A, the various Headquarters Agreements, the Standard Basic Assistance ~~reements
.'Of the United Nations Development Programme and the practice developed by the
..United Nations system in re spect of the implementation of the foregoing Agreement st.A/C.5/36/21
Etiglish
Page 2
(b) The term "staff nl$mbersl' should cover officials, experts on mission,
locally recruited employees and, in general, all persons pe rfoning functions or
services for the United Nations system1
/'
(c) The term "cases" should relate solely to instances where an actual,
verified breach of the status of an individual staff member had occurred, which
breach had not been remedied by the Government concerned.
I
4. The report which follows is based on from the followi~q
organs, organizations and bodies of the
31 August 1981: . Economic @mission for (ECLA) , Economic and Social
Cbmmission for Asia and the Pacific (ESCAP) , Africa (ECA) ,
Economic Commission for Western Asia (EcWA), Nations Disen~agement Observer
f ce (UNDO?? ,) United Nations Peace-keeping Cyprus (UNFXCYP ) United
Nations Industrial ~evelopment Organization United Nations Interim Force
in Lebanon (UNIFIL), in Palestine
(UN?SO), Office of the United Refugees (UNHCR),
United Nations Relief and Refugees in the Near East
(UNRWA) , United Nations Development
Programme (UNDP) , International , Food and Agriculture
Organization of the United Nations (~b), United Nations Educational, Scientific
and Qlltural Organization (UNESCO)./ ~nternational Civil Aviation Organization
(ICAO) , World Health Organizat$oh (WHO), International Monetary Fund (IMF'), World
Intellectual Property Organszation (WIPO) and IAEA.
Arrest and detention. of staff members
5. The largest number of reported cases relate to breaches arising from the
arrest and detention of stctff members. The increase in the number of such cases in
recent years led to the issuance by the United Nations Assistant Secretary-General
for General Services in January 1980 of a memorandum on the immediate reporting of -
arrest and detention of staff members, other agents of the United Nations and
I xmbers of their families. The memorandum was addressed to the DEecutive 4
-1cre taries of the regional commissions, UIM re sident representatives,
representatives of UNICEF, directors of United Nations in£ormation centres, and
heads of United Nations peace-keeping missions.
. 6. Based on the immunity provisions of the Charter and the Privileges and
Immunities Conventions and Agreements, the memorandum re states the position
constantly upheld by the United Nations that when a governmental authorify arrests
; or detains a United Nations staff member, whether internationally or locally
: recruited, the United Nations has the right to visit and converse with the staff
: member', to be apprised of the grounds for the arrest or detention, including the
main facts and formal charges, to assist the staff member in arranging fo'r legal
c.ounseL and to appear in legal .proceedings to defend any United Nations interest
affected by the arrest or detention.
7. The.United Nations position in this regard, which is shared by the specialized
agencies, is based on a number of considerations. First, the distinction between
Ig:.::.., A/C. 5/36/31
g.... English
-..-. Page 3
.:<.
::,.
i$tsperformed in an official capacity and those performed in a private capacity,
;.~~i,.hlies at the heart of the concept of functional immunity, is a question of
fist which depends on the circumstances of the particular case. The ,position of
--t hnited Nations is that it is exclusively for the Secretary-General to determine
itheextent of the duties and functions of United Nations officials.
,,..ti
Second, it follows from the advisory opinion of the International Court of
;!'.'astice of11 April 1949 on reparations for injuries suffered in the service of the
!united Nations that the United Nations has a right of functional protection of
/;'tho o feits staff members in respect of whom a State possibly may have violated
tits international obligations.
Third., to enable the Secre tary-General to make the determination whether an
done in 'the course of official functions and, in the affirmative, to decide
to waive immunity, as well asto enable the Organization to exercise its
functional protection, there must be an adequate opportunity to learn the
the case. Where a staff member has beenarrested or is in detention, the
opportunity is through access to the staff member concerned.
the position outlined above has, on the whole, been respected and
by Member States, there have been a number of cases during the
p@resent reporting period in which the United Nations and speciali?;ed agencies have
be....denied access to arrested or detained staff members and, in general, have been
:prevented from exerc ising their right of functional protection.
has reported a total of 26 cases of arrest and detention of Agency staff
rs in the Gaza Strip, the West Bank, east Jordan and the Syrian Arab
lic. Of these staff members, 22 were released, without having been charged
to trial, after periods of detention ranging from 4 .days to 10 weeks.
w$staff member in the Gaza Strip was brought to trial after having been detained
"fktfive months, sentenced to a term of imprisonment and subsequently re leased.
kfi+
@u+;. Of the remaining three UNRWA staff members, Mr. ~ughi Mustafa Ahmad,
&$,O?.instructor at the Kalandia vocational Trainirq Centre in the West Bank,
8'sentenced to a term of five year.s imprisonment on 5 March 1981;
edine Hussein Abu Khreish, a teacher of'mathematics at Kastal School
D~a~~us,, has been held in detention in the Syrian Arab Republic since
1980 without having been charged or brought to trial; and
t'.mallah Daher Hayatli, a teacher at.Al Jish School in Horns, Syrian Arab
c,.has been .missing since 20 April 1988 without any record of his arrest
tention. Mr. Sughi Mustafa Ahmad and Mr. ~zzedine ~ussein Abu Khreish are
to have been members of proscibed organizations. In all these cases,
r, UNRWA has experienced difficulties in obtaining adequate and timely
ation and, consequently, has been unable to ascertain whether official
ns have been involved.
has reported 11 cases of arrest and detention of staff members or their
,ants in two of which there is evidence of a clear violation of the status of
taff member concerned. In Uganda, a locally recruited driver was assaulted
@tained while on duty, and in the United Arab Emirates, a non-national, ..4
A/C.5/36/31 +.I3
English '::j
Page 4 rl
..!*
locally recruited staff member was arrested on UNDPpremises. No formal
interventionyofhUnitedorNationscofficials,nthetstafffmembers were promptlyowing t.3.t
released. .83
14. The case of one UNDPstaff member, Alicja Wesolowska, arrested in August 1979-.
in her native country, Bland, while en route to a new assignment, is still
pending. The staff member was tried on charges of having engaged in activities %;
detrimental to the security interests of Poland, convicted by a military tribunal ,,
and sentenced to a term of seven years imprisonment. Since all access to the staff
member has been denied to the United Nations, the Secretary-General has been Unable
to verify the nature of the alleged violDuringathe perioderunderhreview, thevented
Secretary-Generalfucontinuedphis efforts to secure the release of the staff member,'
In a letter dated 12 January 1981 addressed to the Chairman of the Council of State
of the Polish People's Republic, the secretary-General reiterated an earlier appeal
for clemency in this case. In his response, the Chairman of the Council of State .,:
stated that the request for clemency "can be examined exclusively on humanitarian.$
grounds, taking .into account all the circumstances of the case". The appeal p,
was renewed by a cabled message from the Secretary-General on 17 April 1981. . ftj
On 24 July 1981, the Secretary-General requested the personal interventionof the~
First Secretary of the Central Committee of the Polish United Workers Party in ;q
number of occasionsemthat.hislappeal iseunderepositiveerconsideration,nno decision ci:,
has yet been taken by the Polish authorities.
15. UNICEF has reported the arrest and detention of three 'staffmembers, two in . .
Afghanistan and one in Mozambique. In Afghanistan, an international official was +-
arrested, questioned for two and one-half hours, released and requested to leave ' .
the country; a locally recruited official, Mr. Tawakal, arrested on 30 June 1981, :
remains under detention. The Legal Counsel has been officially informed that this :
staffmember is under investigation in connexion with security matters and that
upon completion of the intIn Mozambique,oba locallywrecruitedastaffnmember detained .
on 6 Marchi1981 wascreleased on 15 August 1981 without having been charged or sent
to trial.
16. The common link in these cases has been the difficulties encountered by UNICEF
in providing functional protection at the time of arrest or during detention
because of the failure -of the authorities concerned -,provide timely information"
and access to the staff members.
17. Two of the regional commissions have drawn the attention of the .
immunities,eand concerningerwhich then~nit36dati ionsrightsof functionalleprotection
continues to be denied.
18. One locally recruited staff member of the Economic Commission for Africa (EcA )
was released from prison in Ethiopia i July 1981 after 21 months of detention. A/C. 5/36/31
English
Page 5
-,,*:,
.....
l ,.t other lo~cll:~ rocrl.~i+,~d staff members, Ms. Cesta, Ms. Abay and Mr. Belay,
ntion in Ethiopia at the present time. Ms. Desta was arrested in
spite repeated efforts on the part of ECA officials permission to
t and converse with the staff member continues to be denied. No formal charges
the staff member have been made known to the United Nations. Ms. Abay .was
ested in August 1979 and in January 1980 was charged with having participated in
tivities". She has been visited in prison by an ECA security
y was arrested in October 1978. Repeated requests by United
rs and ECA for visiting rights have been ignored or denied.
Belay.informed ECA in June 1979 that his clothes had been
cation that the staff member was no longer alive. The
, the Legal Counsel and the Executive Secretary of ECA have
p&edl~ sought to obtain verification of the whereabouts and/or fate of
Belay without s,uccess. In the absenae of any information regarding this case,
cretary is obliged to draw the conclusion that the staff member died while
ported no cases in the current period but has specifically drawn
lier violations involving the arrest or abduction of two staff
in which the conduct of the authoritieshas never been explained
on of the United Nations. The cases of Carmelo Soria and
s are the subject of formal claims by' the Organization. The
ned has denied responsibility in these cases and considers them to
gat ion, in accordance with domestic legal procedures.
@.,
$20, Reports have been received from two of the specialized agencies regarding the
piirest and detention of international staff members. In one case, a staff member
:ofWHO was detained for 24 hours but released immediately, once his status was
k.;,~rified. In the second case, a high official of UNESCO was arrested in March 1980
W:.dremains under detention at the present time.
9.':
.... Mr. Percy Stulz, the Director of the Cultural Heritage Divisiori of UNESCOand
,-'.national of the German ~emocratic Republic, was detained and arrested while '
',,,isiting his country in March 1980. The Director-General of UNESCOwas advised by
Eiovernmental authorities, as well as by a letter purporting to have been written by
dk. Stulz, that in view of the criminal charges lodged against him alleging
!activities against the State, he was obliged to offer his resignation from UNESCO.
!The Director-General in£ ormed the authorities concerned of 'the status, privileges
pd immunities attaching to UNESCOofficials by virtue of Article 105 of the
;Garter of the United Nations .and article WII of the UWESCO Constitutiom, .and, in
iparticular, drew their attention to the fact' that Mr. Stulz's immunity from legal
IProcess had not been waived by the Director-General.
The Director-~eneral in£ ormed
;Mr. Stulz that his resignation could only be considered if submitted in accordance
:with the procedures laid down in the Staff Rules and at his duty station, Paris.
:Further contacts between the Organization and the Government in both Berlin and
I Paris confirmed the position of each side,
3.:
i.A/C.5/36/31
English
Page 6
22. The case was brought to the attention of the Executive Board of UNESCOat'
109th session, held from 30 April to 6 June 1980. The Executive Board express
its concern regarding the continued detention of Mr. Stulz and gave its full 'L..
support to the Dirctor-General for his efforts in pursuing the release of the si
member. The Chairman of the Executive Board advised the President of the Gecma<.
Democratic Rep~bl ic National Commission for UNESCOon 11 June 19 80 of the &)ar- I8-;:,,,;,.
action. .,%%&
,.<&g*7
23. On 24 August 1980, the Director-General of UNESCO was informed by the .A=?+.:-4
.<.;4
Permanent ~epresentative of the German Demcratic Republic that Mr. Stulz had -q.s:
been sentenced by a Berlin military court to three years of imprisonment. ::3;
On 12 September 1980, the Executive Board adopted a resolution in which it decided"_,!:
to draw the question to the attention of the UNESCOGeneral Conference at its .WT-E:!
Belgrade session, held from 23 September to 28 October 1980. The General * .-.
.?,:3,
1onference adopted resolution 25.1, entitled "Independence of the international 1._i
civil service", in which, after expressing its profound concern that a high j .j
official had been arrested, detained and sentenced to a term of imprisonment ,.A
despite the protests of the Director-General and the Executive Board, it invited
the Director-General to continue his efforts to obtain a satisfactory solution t(j43;$
the problem. The text of the resolution was circulated by. the Director-General tq$;#
all States members of UNESCOo 'n 27 February 1981, and in a .letter to the Pre~ide~t2d .;;d
of the Council of State of the German Democratic Republic, the Director-General ?,,,!$?;
requested that a favourable reply be given to the request for the release of .~$~:'!
Mr. Stulz. The Attorney-General of the German Democratic Republic responded YS
negatively to that request. At its 112th session, in May 1981, the Executive ~oard''
again examined the case, taking into account the most recent developments and .
General Assembly resolution 35/212. The Executive Board adopted decision 5.1.6 ';a
and again expressed its support' for the efforts of the Director-General. '..
24. On 15 June 1981, a hand-written letter of resignation from Mr. Stulz was
transmitted to the Director-General. On behalf of the Dir&ctor-General, the
Assistant Director-General advised Mr. Stulz on 1 July 1981 thathis resignation .' :
could only be accepted if it was made in accordance with the normal procedures and.?.
.'
)resented at the duty station; the Director-General continued to regard him as a .:
staff member, On 28 August 1981, Mr. Stulz wrote another letter to the
Director-General in which he repeated that he had resigned from the secretariat of"'
the Organization.
Immunity from legal process
.-
25. Section 18 (a) of the Convention on the Privileges and Immunities of the
United Nations provides that officials of the United Nations shall be immune from 4
legal process in respect of word's spoken or written and all acts performed by them ' j
in their official capacity. Similar provi,sions are to be found in the other i
. .
privileges and immunities instruments. The expression "legal processv1 has been ./
interpreted by the United Nations as comprising the entire judicial proceedings by 1 .-
alp. 5/36/31
English
Page 7
assumed jurisdiction and compels the appearance of the defendant and
other than cases involving arrest and detention, which have been set out in
5-22abover only one case, involving a staff member of the United
tions ~nvironment Programme, has been, reported in which immunity from legal
Eg Cas noet sullys respected.
):/mPtion from taxation
;~7. Few problems have been encountered in the reporting period with regard to the
tqUeseion of taxation on the salaries and emoluments of officials. Where problems
ibave arisen, usually in re~pect of locally recruited officials, the matter has been
isatisfactorily resolved, once the law and practice of the organizations has been
I 'explained. Although a small number of cases of this kind are pending, the
rsecretary-~eneral is of the opinion that they do not, at the present time, fall
the purview of resolution 35/212.
sz.
m immigration restrictions, alien registration and travel
&: ;
%:28, The immunity provisions with regard to immigration restrictions are designed .
principally to facilitate the unimpeded travel of officials. The United Nations
ghas taken the position that under section 18 (d) of the Convention on the
f PriviZeges and Immunities of the United Nations, States parties to the. Convention
I.are bound to issue visas to officials of the United Nations without restrictions. 2/
:'Occasional difficulties in this regard have been encountered by some of the regiongl
1'commissions and by UNDPduring the reporting period.
.29. The most serious and persistent restrictions on duty travel of officials have
been encountered by UNRWA. Three international staff members have been denied
'facilities for travel on official duty in the West Bank and the Gaza Strip by
.Israeli authorities. Two locally recruited staff members have also been refused
entry into the occupied territories. Although the matter has been the subjec,t of
)repeated protests by the Agency and the United Nations Legal Counsel, the
restrictions continue. The Agency has been given to understand that the denial of
facilities in these cases relates to security (though no specific information as
been given to the Agency) and to the refusal of some Governments to permit Israeli
nationals employed in international organizations to visit or work in their
.
territory. These restrictions do not apply to Agency staff members who joined
prior to 1974 and who have already been cleared for travel in the occupied
territories. The international staff members whose travel is thus restricted are
nationals of Pakistan, Sri Lanka and Tunisia; the locally recruited staff members
are nationals of Lebanon.
1/ Yearbook of the International Law Commission, 1967 (United Nations
-
P~blication, Sales NO. E.68.V.2), p. 266, para. 250.
2/ United Nations Juridical Yearbook, 1973 (United Nations publication,
SalesNo. E.75.V.1), p. 168. -. . .
?.,/C5,'?~,/='
English
Page 8
30. One locally recruited staff member of UNRWA, a national of Lebano
denied entry into the Syrian Arab Republic. This case is the subject
negotiations between the Agency and the Government.
Duty-free importation of furniture and effects
31. Section 18 (g) and 19 (f) of the Cbnventions on the privileges and hu
of the United Nations and of the Specialized Agencies accord officials the
duty-free import of furniture and effects upon first taking up their
this has generally been observed in the practice of States, difficulties have
arisen during the reporting period in regard to three Field Service
assigned by the United Nations to serve with ESCAP.
The Government of Thailand has declined to permit the duty-free import of
32.
personal automobiles of the 'Field Service officers concerned, notwithstandig
i 1 efforts of the @mission's secretariat and the Office of Legal Affairs to secuf
compliance with the relevant provisions of the Convention and the ESCAP
&adquarters Agreement. In view of the impasse which has been reached in the '
matter, the Legal Counsel has concluded that there exists a difference of
interpretation or application of the instruments in question which
settled in accordance with the procedures provided for i.n the Convention. Distr.
GENEPAL
n/c. si3s/le
25 October 1985
03IGINAL: ENGL?'S:I
XSPBC'J' FOR F>lE PR~t]~~ EGES !;I.?!?~.>V'1Litii'~T3@P QFFICIALS
'f'!+'r: U:q:TENAT;Ox\!S Apiij s:,EcTr,L!zsr? :5\GE?iCIE:SAND
RELATED OHGkNL ZhTlCCJS
----.-----_-_--.-_I-.----d in Lebanon by the 1sra<l. author itie.5
Uy resolution 37/236 E of 21 Uecemrjer 1922 ti.e Ge!,ersl :scc:.!?r,bl.after drawing
ention to the unprecedented charhcter of thl? iilSss arrest by :he 1sracl.i
horities in the territory of Lebenon of a ?reat number of ofii-ials of the
ted Nations Relielc snd Works hyency for Palestine Refugees it1 t:.ftNear East
RWA), called upon the Secretary-General to establish the whercsiiollts, find out
-41rges made and arrange a meeting with the detaii~ed officials, in order to I
A their earliest release and requested him to inform Member States 2rorn~tly
Out the iiieasures taken by him and their resu1.t~.
AS wss indicated by the Secretary-(;r~.neral in his report to the thirty-seventh
ssion of the General Assembly entitled "Respect for the privileges -3113 in;inuf,itie!5,
officials of the uniteif Nations and the specialized egencies and related
9anizationsn (~/~.5/37/34),fcllowifig the Israeli invasion into south Iebanon ir.
ne 1982, more than >of! cases of arrest of UNR!+A staff members in Lebanon by the
Sixt:f-elaht staff ~iembcrs were still
raeli Defence Forces were reported. L/
lieved to in detentioll on 17 mtober 1983, 2'3 of whom have been reported arrested
1983(see annex). Repeated attempts have been made to obtain information
ardin9 the detained staff, to secure access to them and to obtain their early
ease, The steps that have been taken in this regard are outlined below.
The Director, uI\IRVIAvest Bank Field ~f'fice, L/ took up the matter with the .. ..
:i
i Ministry of Foreign Affairs at a meeting on 19 July 1982 as soon as UNRKA 1 i:].
d informati.on about the detention of some members of its staff in Lebanon by .:I!!
1,i+
i.
/. .. ! i
...I
. . j;
.. ;;!
I . ,. A/C .5/?:?,/I8
English
Psge 2
the Israeli Def2nce Forces 1159). This was followed, at the direction of UNRKIi
h~cCyuzrters, uith a note on 24 July 1982 to rhe Ministry of Foreign Affairs
for;~iircling a 2Ssr c;f staff ther, known to have been arrested- Since then UN3Nh has
fcllmded ap pericZically with the Israeli Ministry of Foreign Affairs as well as
with the Israeli armed forces in Lebanon. Thus the Lebanon Field Office took the
rnatzer up with the local IDF cownand in xeetings in August and September 1982, as
well as in writing.
4. On 13 and 18 Cctober 1982 the Director, UNRWA West Bank Field office,
contacted the Israeli Winistry of Foreign Affairs while the UNRWA Field Office in
(
Lebanon continued its efforts with IDF there. On 13 December 1952, the
Conmissioner-General of U1JRk?& took the mhtter up with senior officials of the
I~ternational Organizaticns Department of the Israeli Ministry of Foreign Affairs.
This was followed by a letter of 29 Cecember 1982 from the Director, UNRWA Xest
Bank Field Office, to the Ministry.
.-.
5. Oil 4 January 1983, the UNRWA Field Director in Lebanon, at a meeting in south
Lebanon with an Israeli minister and certain other senior 1sra.eli.officials pressed .&*
wain for access to staff under detention, for their early release and for 1!.
information on then. As this meeting also did not yield concrete results, the
Acting Commissioner-Gener81 of UNIt!-?A wrote to the Israeli Ministry of Foreign
',"
kff'a.irs on 14 January 196 3, followed by a letter from the Director, UNRWA West Bank. ,!
Field Office, on 15 ~ebruary 1983 updating information on UNRWA staff detained thus
far and reiterating the earlier requests including again, in particular, the
request 'that arrangements' be made for the Agency to visit its staff under .,,...
detention. A reply was received from the Ministry on 18 March 1983 to the Acting ..;'
Ccmissioner-General's letter of 14 January. .I $:
6. This reply made the point inter alia that no distinction could be made betweed.
I UNIiWn employees and other detainees regarding visits. It was also stated that $
UNRWA staff detained in Ansar in south Lebanon by IDF were not detained for any 9'-
activities related to their official capacities and that, therefore, no question of
the infringement of their functional imiiunities should arise. The commissioner-
General wrote in reply on 28 March 1983 to the Ministry of Foreign Affairs,
focusing on the right of UNRWA (a) to be informed of the arrest of any of its
staff; (b) to he in'formed of the reasons for the arrest so that it might judge
whether that arrest related to the official functions of the staff member
concerned; and (c) to have access to detained staff. Since then the Agency has .'
taken the matter up both in south Lebanon with officials of the Israeli Defence a
Force and in Israel, but without success. 'i
,.{I
::
7. On 3 May 1983 the Secretary-General wrote to the Permanent ~epresentative .of'A!
Israel to the United Nations drawing attention to the position of the united
Nations under international law and to, the terms of the General
37/236 B and requesting inter alia that his representatives be given
visit UNRWA staff detained in south Lebanon at an early date, to speak to them
to assist them in their legal representation. The Israeli Permanent
in New York replied on 13 June 1983 to the Secretary-General's letter. In
substance, the Israeli authorities took the position that they had
dedide unilaterally the question of what constitutes an official A/C.5/38/18
English
Page 3
united h'ations official and that, furthermore, the Government of Israel considered
that the United Nations had no standing as regards proceedings taken against its
own staff members.
8. he Secretary-~eneral, in his reply of 28 June 1983 to the Israeli Permanent
~e~resentative, noted that the position taken by the Government of Israel was not
in conformity with international law and practice. In that letter, the Secretary-
General also referred to the recognized principle that it is exclusively for the
secretary-General, as the chief administrative officer of the ~rganization, to
determine the extent of the duties and functions of the United Nations officials.
Given the large number of countries in which the United Nations operates, the
possibility of conflicting decisions by national authorities as to whether a given
' act was official or not would be tantamount to a denial of immunity. With regard
to the question of standing, the Secretary-General pointed out that the position of
the Israeli Government was contrary to the well established right, under
internationax law, of functional protection of the Organization. It was recalled
that the International Court of Justice had held that international organizations
had the power and responsibility to protect members of their staff. The
Secretary-General urged that the Israeli authorities be informed of his deepest
himself and that the matter be reconsidered the appurgently.f thThe position Asof the and
Government of Israel as referred to above was also conveyed to the Commissioner-
General of UNRWA on 1 June 1983 (in reply to his letter of 28 March 1983) to which
the Comissioner-General replied on 21 June 1983, again drawing attention to the
United Nations position and requesting a positive response from the Government of
Israel.
1 9. On 12 October 1983, the Permanent Representative of Israel replied to the
I Secretary-GeneralSs letter of 28 June 3.983. After assuring the Secretary-General
that the Government of Israel fully appreciated his concern for the well-be-ing of
I' ,!JNRWA employees detained at the Ansar Camp, the Permanent Representative went on to
I ' state that t
"Israel has detained certain individuals in Lebanon on account of their
involvement in hostile activities, either directly or as accessories, with a
view to preventing their involvement in further hostile activities which would
endanger the people of southern Lebanon as well as the citizens of Israel.
Their detention has no connection whatsoever with their professional
activities, but only with actions which violated their functions as officials
of the United Nations. It is quite impracticable for the Government of Israel
to attempt to differentiate between locally recruited personnel who performed
their hostile actions outside the scope of their functions and other
detainees. In neither case is there any immunity."
The Permanent Representative closed by stating:
I
'However, I am glad to be able to inform Your Excellency that, as part of
the ongoing review of the situation in southern Lebanon, a number of
detainees - including some UNRWAemployees - will be released in addition to
.those who have already been released s~ far. Under prevailing circumstances
this release cannot comprise all the persons in whom you have expressedA/C.5/38/18
English
page 4
interest,until theirbackgroundand activitieshave been fullyinvestigated,
At the same time, as Your Excellencyis certainlyaware,all detainees are '
beingvisitedon a regular basis by the representativo ef the International .
Committeeof the Red Crossand are permittedto appealtheirdetention before.
an ~dministrative AppealsBoard."
In his replydated 25 October1983,
the Secretary-General welcom tehe promise
of the releaseof a furthernumber ofUNRWA officials and expressed the hopethat
it would take placewithoutdelay. He furtherdrew the attention ofthe Permanent
~epresentative to the pointsraisedin the Secretary-General'l setterof
28 June 1983whichhad not been addressedby the PermanentRepresentative stating;::
5
"My concernfo; thewell beingof UNRWAdetaineescomprisesnot onlythe,
''.
conditionsunder which they are beingdetainedbut also the respectfor a .:p
fundamental principleunderlyingthe international civil service. As you are,...
aware from the debatesin the FifthCommitteeof the GeneralAssembly, the '%
Organization's right of f~nctional~~rotectiw onth regardto arrestedand ii
detainedstaffmembers hasbeen strongly reaffirme by the GeneralAssembly ''
a numberof resolutions, most notably resolutio3 n6/23205 18 December1981.
I would, therefore,once againreferto the contentsof operativeparagraph I-:'
of resolution 36/232 and reiteratemy previousrequests thatthe
Organization's right of functionalprotectionbe observedby the authorities,,:.
concerned." .2:
10. In a relateddevelopment, the Secretary-Generah las takennote of a judgement"
whichwas given on 13 July 1983in the SupremeCourtof Israelsittingas theHigh.
Court of Justice. The petitionersin thiscase, theinmatesof th,e Ansardetention
camp, had appliedto the High Court of Justicefor an order directingthe .?:
respondents,the Ministerof Defenceand commanderof the camp, to informthemof ??
the legalbasisof their detentionand to showcausewhy they should'i~o be i'fi
,.:,f.
permittedto see their lawyers. The courtruledthat the respondents wereentitled:
to arrestand detain the petitionersin territoryoccupiedby the Israeliarmy aid:;
that the detaineeswere subjectto the ruleslaiddown in article 78of the ~ourth.2
GenevaConvention. 3J The courtalso recordedthe respondents'undertaking that "'
the petitioners would be entitledto meet theirXawyers,subjectto the necessary -'
safeguards. 4J ....
..
11. In the view of the Secretary-General, th
proceedingsin the Supreme Cour of:
Israel,in so far as they addressthe rightof accessand legal representatioo nf.,
detaineesunder the rules of the Fourth Geneva Convention, supplema entreinforce
the UnitedNations position which is basedon the right offunctional protecki~n..;~
The Secretary-General notes,in particular, thatCounselfor the respondents ..
informedthe courtthat respondents had decidedin principleto permitvisitsand .
were consideringthe practicalarrangements to be made for that purpose.
12. Taking into consideration all of the measuresset out aboveand the
observationsand judgementof theSupremeCourtof Israel, the secretary-~eneral
can only reiterate his request that the continued detention ofUNRWAstaffbe !..w
urgentlyreconsideredby the Governmentof Israeland that the Organization's xigb!j
of functionalprotectionbe recognized. The Secretary-Generaw lill continueto A/C.5/38/18
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Page 5
@nitor the release of the UNRWA detainees by the Israeli authorities and, in view
of the recent assurance given by the Permanent Representative, will provide to the
General Assembly an updated list of UNRWA detainees taking into account any actions
taken since 30 June 1983,
Notes
-/ The total number of UNRWA area staff posts in Lebanon on 1 April 1983
is-2,391 [Joint Inspection Unit, Report on UNRWA, (A/38/143) 1 August 1983,
l,- ). 1181
2/ The designations of UNRWA offices used in this report follow the UNRWA
organTzational chart (see document A/38/143, annex) .
Geneva Convention Relative to the Protection of Civilian Persons in Time
of War of 12 August 1949. Article 78 provides as follows:
"If the Occupying Power considers it necessary, for imperative reasons of
security, to take safety measures concerning protected persons, it may; at the
most, subject them to assigned residence or to internment.
"Decisions regarding such assigned residence or internment shall be made
according to a regular procedure to be prescribed by the Occupying Power in
accordance with the provisions of the present Convention. This procedure
shall include the right of appeal for the parties concerned. Appeals should
be decided with the least possible delay. In the event of the decision being
upheld, it shall be subject to periodical review, if possible every six
months, by a competent body set up by the said Power. .,
1 )
"Protected persons made subject to assigned residence and thus required
to leave their homes shall enjoy the full benefit of Article 39 of the present
Convention. "
fl/ This judgement was reported in The Jerusalem Post of 21 August 1983. General Assembly Distr.
GENERAL
A/C.5/44/11
[,!N ~iz?AR'f 2 November1989
ORIGINAL: ENGLISH
!:??, ;',i.1.1
, . a , !
' Forty-fourth session
: ' FIFTHCOMMITTEE
Agendaitem 130 (b)
PERSONNELQUESTIONS: RESPECFTOR THE PRIVILEGESAND IMMUNITIES
OF OFFICIALSOF THE UNITEDNATIONS AND THE SPECIALIZED AGENCIES
AND RELATED ORGANIZATIONS
Report of the Secretarv-General
INTRODUCTION
1. The GeneralAssembly,in its resolution 43/225of 21 December1988, called
uponthe Secretary-Generala ,s chief administrative offico er the UnitedNations,
tocontinue personallt yo act as the focal pointin promotingand ensuringthe
observance of the privilegesand immunitiesof officialsof the United Nationsand
thespecialized agenciea snd relatedorganizations by using allsuch means as were
available to him. It furtherurged the Secretary-General to give priority;through
theUnited Nations Security Co-ordinat orrhis otherspecial representatives to
Ithereportingand promptfollow-upof casesof arrest,detentionand otherpossible
matters relatingto thesecurityand proper functioningof officialsof the United
Nationsand the specialized agenciea snd related organizations.
2* The currentreport,coveringthe periodfrom 1 July 1988 to.30 June 1989,is
Submitted by the Secretary-Generai ln of the aforementionedresolutionon
behalfand with the approval ofthe Administrative Committeeon Co-ordination
(Acc). As in previousyears, it is basedon the informationobtainedfrom United
Nationssubsidiaryorgans,officesor missionsas well as specializedagenciesand
organizations.A list of organizations, organs,offices and missions that
havebeen requestedto provide informationis containedin annex I11 to the present
.repor.t
y-...
p~..?[he reportingperiodhas been markedby one particularlydisturbing
.~'vel~pment namelythe report of the brutalmurder of lieutenant-Colonel
ColonelHiggins,an officerof the United Statesof
&$.iam RichardHiggins.
i7+$a, was servingas the chief of e group of militaryobserversassignedto the
1-1 A/C.5/44/11
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Page 2
United Nations InterimForce in Lebanon (UNIFIL)when he was abductedon
17 February1988. On 31 July 1989,an announcement at Beirut by his captorsstated
that he had been killed. The Security Council took note with greatconcernof the
reports from Beirut that day, sayingthat, if true, the murderof ColonelHiggins
was "a cruel and criminalact" (Sl20758). On 1 August the Secretary-Genera sent
Mr. Merrack Goulding, Under-Secretary-Genera for SpecialPoliticalAffairs,to the
area to ascertain,as far as was possible, what had happenedto ColonelHiggins.
Despite extensiveconversationswith various parties who may have been ina
position to know the facts, Mr. Gouldingcouldnot obtaindefinitiveproof of
ColonelHiggins'fate. On 9 August,the Secretary-Generalh ,aving received
Mr. Goulding's report on his mission,announcedthat he had regretfullycome to the
conclusion thatit was almost certainthat ColonelHigginswas dead.
He said he
j i would continue totry to establish thefactsand, if his fears wereconfirmed,to
recover the body.
4. The Middle Eastcontinuedto be an area of prime concern withthe most cases
of arrest, detention and abductionof officials. Effortsto improve thesituation,
however, havenot produced encouragingresults. The number of cases of arrestand
detention without charge or trial of staff members o fhe UnitedNationsReliefand
Works Agencyfor PalestineRefugeesin the Near East (UNRWA)remainedvery high.
There have been regrettablecasesof abuse of privileges ani dmmunitiesin certain
other regionsthat required,on a number of occasionst ,he personal intervention of
the Secretary-General.At the same time,it shouldbe noted that in the great
majority of Member States,privilegesand immunitiesof officialsare scrupulously
respectedand any emerging cases are promptly resolve in a spirit of close
co-operation betweenthe parties concerned.
5. The Secretary-General, assisted bythe UnitedNations SecurityCo-ordinator,
his special representatives and the respectiveexecutiveheads of the organizations
concernedhave continued, throughout the reporting period, to promote and ensure
the observanceof the privilegesand immunitiesof officials.ofthe Unitea Nations
and the specializedand relatedagencies, intervening, i required,with the Member
States concernedon the basis of the reLevantinternationallegal instruments. In
this endeavour,as in the past, they have enjoyedthe full supportof the
representatives of the staff unions. While seeking the co-operationof Member
States in fulfillingtheir obligationsunder the internationalinstruments'in
force, theSecretary-General has also, as notedon several occasionsin his
previous reports,been conscious ofthe need to clarify forall officialsthe
precise nature,scope and functionalcharacter oftheirprivileges and irmnunities.
6. As was indicatedin the reportof the Secretary-General to the General
Assembly at 3ts forty-secondsession (A/C.5/42/14), when staff members ofthe
United Nations and the specializea dgenciesand relatedorganizationsare a
and detained,both legal and humanitarianconsiderations are takeninto acco
the Secretary-General or the executive head concerne in seeking accessto
--?~he legal considerationsderive from the relevantinternational instruments
privilegesand immunities andrelate principally to the determination ofwh
not a staffmember has been arrested or detaineb decauseof his or her offi
activities. This determination mustbe made by the organizationconcerned
the organization determines on the basis of visits to the'detainedor arrested A/C.5/44/11
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Page 3
staffmembers that the arrest or detentionis relatedto official functions,then
immunityis asserted. If, however,the visitingofficialis satisfied, bothfrom
an interviewwith the detainee and from thecharges brought, that the matter is not
related toofficial functions,there is no legal basisfor assertingimmunityand
, the legal as distinctfrom the humanitarian groundf sor further interventiob ny the
organization nolonger exist
*%
7. The huinanitarian considerationsinvolvedare much broader and, pursuantto
such considerations, theSecretary-General or the executivehead concernedseeksto
ensure that any staff member who is arrestedand detainedis treatedfairly,
properly chargedand promptly broughtto trial.
I
I. ARREST, DETENTION ANI)ABDUCTIONOF OFFICIALS
I
8. Viiilethe majority of cases of arrest, detention or disappearance ofofficials
are resolved tothe satisfaction ofthe Secretary-General, a considerableamountof
time is often spentboth at Headquartersand at the duty station of the official
concernedin obtainingsuch resolution. In particular,the arrest of locally
recruitedofficialssometimesresults in protracten degotiationswith government
officialson the rightsof the organizationvis-8-vis theofficial. It must be
recalledthat the term "official"in the contestof the relevantconventions
includes allmembers of the staff,with the exception of those who are both
recruitedlocallyand paid at hourly rates. To the great regret and disappointment
of the Secretary-General, the numberof casesof arrest,detention ordisappearance
ofofficials for whichthe organizationshave not been able fully to exercisetheir
rightshas increasedsubstantiallyin the reportingperiod. Particularsregarding
thesecases are containedin the reports submitted by individual organizationa snd
agencies,which are summarizedin annex I1 to thepresentreport. With particular
referenceto the present reporting period the followingshouldbe added.
3. Despite the serious expression of concern voiced by the Secretary-General in
his last report (A/C.5/43/18),the numberof UNRWA staff arrestedand detainedhas
remainedat the high level recordedfor the previousyear, and has, in fact,
marginally increased.During the period1 July 1988 to 30 June 1989, 157 UNRWA
staffwere arrestedor detained. However, there was a decreasein the number of
staffdetainedby one or otherof the militia groupsin Lebanon; this number fell
from 24 last year, to 11. Nine of the 157 staffwere detainedtwice duringthe
reportingperiod. Ninety-three ofthe 157 staffwere arrestedor detainedand
releasedwithout charge or trial, including11 who had beenheld by militia
groups. Eight were charged, tried and sentencedto various terms of imprisonment.
10, In no case has UNRWA receivedadequateand timelyinformationon the reasons
for the arrest and detention.despiterequeststo the authorities. UNRWA has had
accessto 26 detainedstaff from theoccupiedWest Bankand to 37 detainedstaff
the Gaza Strip. Several of these staff, however, were being held,inprisons
' Israel, havingbeen transferredthere from the occupied West Bank and the Gaza
..Sttip,
:.. A/C.5/44/11
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11. As a result of the efforts undertakenby the Secretary-General, designated
officials and officials in the field and with the strong support and activities of
the staff unions, it has been possibleto achieve the release of many staffmembers
who were previously reportedas being under arrest or detention.
Mr. Shimelis Teklu, a staff member of the Office of the United Nations High
Commissioner for Refugees (UNHCR),detained in Ethiopia since 2January 1984, was
released in June 1989. In Lebanon, Mr. Omar Mustafa Hussein, a staff member of
UNRWA who had been listed as missing since 15 April 1987 was also released. Eleven
other UNRWA staff members detained in Lebanon during the reportingperiod by
militias or unknown elements were released. In Chad, active intervention assured
the quick release on 24 May 1989 of Mr. Nassar Dandjita, local administrative
assistant of the World Food Programme (WFP),who was arrested on 6May 1989. In
Jordan, Mr. Jibril Taher Mohammed Jibril, a staff member of UNRWA, detained since
31 December 1987, and whose case became a matter of strenuous efforts of the
Administration and the Federation of International Civil Servants'Association
(FICSA),was released on 21 February 1989. Of those arrested during the reporting
period, 39 staff members of UNRWA in the occupied Gaza Strip and 35 in the occupied
West Bank were released without charge or trial. Mr. Ahmad Mahmoud Lababidi,
arrested in 1988 in the Syrian Arab Republic,Mr. Abdel Karim Keswamy and
Mr. Jousef Juma'a, arrested by the Syrian armed forces in 1989 in Lebanon, all of
whom are staff members of UNRWA, were relezsed in the first half of 1989.
Mr. Khalil Ahmad Abu Sleema, also a staff member of UNRWA, arrestedin Egypt on
25 August 1988, was released without chargeor trial on 20 December 1988.
12. The Secretary-General regrets to reportthat there have been negative
developments in respect of some previously reported cases. Mr. Zeidan Jassin, a
locally recruited UNRWA staff memberwho was.listed in last year's report zs
detained in Lebanon by Syrian armed forces since 27 May 1987 (see A/C.5/43/18,
annex I), died in prison on 17 December 1988. No additional information hasbeen
received regarding other staff membersof UNRWA listed in.the 1987 qeport
(A/C.5/42/14)as detained in Lebanon by militias or unknown elements and the Syrian
armed forces. There has,been no further progressin the case of
Mr. Tesfamariam -Zeggae, staff member of the United Nations Economic Commission
for Africa (ECA). Despite the personal interventionof the Secretary-Generalof
the United Nations and several interventionsby the administration ofECA,
Mr. Zeggae, who has been detained since 2 March 1982, was sentencedby the First
Instance Court in March 1987 to life imprisonment. Details of his case are
contained in annex 11 to the present report.
13. On 18 May 1988, Mr. Abdul Diallo and on 22 May 1988 Ms. Afton Ba Diallo, staff
members of the United Nations DevelopmentProgramme (UNDP), were detainedby the
Mauritanian authoritiesto ascertain theirnationality. They were subsequently
accused of fraudulently obtaining Mauritanian citizenship and expelledto Senegal.
These actions were immediately protested by the resident representativeof UNDP.
Further to these representations,on 16 June 1989 the Administratorof UHDP sent to
the Minister for Foreign Affairs of Mauritania an ~ide-m&m~ir~,in which,
inter alia, he stated that the actions of the Government ofMauritanianot only
impeded the proper functioning of the UNDP mission in Nouakchott, in contravention
of the 1979 Basic Agreement between the United Nations and Mauritania,but also
constituted a violation of the provisionsof Article 105 of the Charter of the
I!'
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United Nations. It'waspointed out thatany expulsionof staff members from the
UNDP mission in the countrywould, in the view of the Secretary-General,constitute
a denial of the immunities guaranteedto United Nationsofficialsby the Charter
and considerednecessaryfor the independentexerciseof their functionsin
connectionwith the Organization. The Secretary-General
felt obligedto intervene
twice with regard to thismatter. First, duringhis visit to Mauritaniaon 20 and
21 June 1989 and secondly,with the Minister for Foreign Affairsof Mauritaniaat
the Assemblyof Heads of State and Governmentof the Organizationof AfricanUnity
(OAU) at Addis Abdba from 24 to 27 July 1989. Despite the assurance receivedby
him that the situation wouldbe corrected, these incident sre still pending
resolution. It should alsobe noted with regret that representations made by the
od and AgricultureOrganizationof the United Nations(FAO) failed to preventthe
'nikestby Mauritanianauthoritiesand expulsionto Senegalof the followingfive
staffmembers of FAO: Mr. Abdoulaye Diaw,Mr. NSiome Pouye,Mr. Demba Niang,
Mr. Amadou Dieng and Mr. MouhamedouBa.
11. RESTRICTIONSON OFFICIALAND PRIVATETRAVELOF OFF~CIALS
OF THE UNITED NATIONS,THE SPECIALIZEDAGENCIES AND
RELATEDORGANIZATIONS
14. UNRWA has continued tomeet difficultiesin the movementof staff into and out
of the West Bank and the Gaza Strip. There has been substantiad lelay in the issue
of entry permitsand, insome cases, they havebeen refused. The movement of staff
within the occupied territoriew sas also seriously affecteb dy frequentimposition
of curfewsand the designationof areas as closed military zones.
15. Restrictiveregulationsimposedby the United Statesauthoritieson travel
beyond a 25-mileradiusof Columbus Circle,New York, by staff members and their
dependants whoare nationalsof particular countries, remaine idn force. On
1 ..-January 1989,these restrictions wereextendedto non-official travelof staff
\,.-dberwho are nationalsof China. This measure was protested by the
I Secretary-General as anotherinstanceof discrimination inthe treatmentby the
host country of staffmembers of the United Nations Secretariatsolely on the basis
I of their nationality.The Secretary-General maintaint she position hehas
I expressedon previousoccasions that,under thegiven circumstances,the compliance
by individualstaffmemberswith such restrictive conditionc sannot be considered
to prejudicethe legalpositionof the UnitedNations. In the reportingperiod,
existing arrangements for officialtravel in the UnitedStates of the United
Nations staff membershave remainedunchanged.
16. Some United Nationsbodies that are not based in theUnited States have
experienced delays in obtaining 6-4 visas for entry into the United States by staff
membersof certainnationalities. On several occasions, sucd helays jeopardized
the envisagedmission,or have rendered itimpossible. In such circumstances,the
managementof UnitedNations bodies not based in the United States is severely
( Constrainedin sendingstaffmembers of certain nationalitie on urgent businessto
1' unitedNations Headquartersor to Washington-based institutions. A/C.5/44/11
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Page 6
111. TAXATIONOF OFFICIALS
r! 17. Section 18 (b) of the Convention on the Privileges and Immunitieo sf the
4
United Nations provides that officialsof the Organizationshall be exemptfrom
I' taxationon the salariesand emoluments paid to them by the United Nations. The
I rationalefor this provisionis to assureequality oftreatmentfor all staff
i members,irrespectiveof their nationality,and to guaranteethat fundscontributed
by Members of the Organizationto its budgetare not diverted to individualStates
j by means of revenue-raising measures such as an income tax. The Conventionon the
3 Privilegesand Immunities ofthe Specialized Agenciee snvisages insection 19 (b)
1 that officials of thespecializedagenciesshallenjoy thesame exemptions from
I taxationin respect of the salariesand emoluments paidto them by these agencies
it and on the same conditions asare enjoyedby officialsof the UnitedNations. The
i Secretary-Generalregretsto reportthat,notwithstanding the above-mentioned
1 provisions,as has been indicatedin the previousreportsto the forty-first and
I forty-thirdsessions (A/C.5/41/12and Corr.1and A/C.5/43/18),a numberof States,
parties toboth Conventions,have continuedto imposetaxes on the salariesof
locallyrecruitedofficials.
s.
18. Despite all effortsundertakenby the UnitedNations and some specialized
agencies,there has been no changein Egypt in the recently enacted legislation
concerningwork permits. 'Under this legislation staffmembers of international
organizationswho are Egyptiannationals are requiret do obtain, for a considerable
fee,work permits. Such a fee amountsto a directtax on the emoluments ofstaff
membersof internationalorganizationsand as such is contraryto the provisionsof
the two Conventionsreferredto in the preceding paragraph.The Egyptian
authoritieshave been requestedto bringEgyptianlegislationinto conformitywith
theseConventions.
19. Early in 1988, the tax authoritiesof the Republicand Cantonof Geneva
decidedto apply a global-ratesystem (taux alobal)to the taxableeatningsof
staffmembers of the UnitedNationsand the specializedagenciesat Genevaholding
short-termcontracts, thustakinginto accountthe exemptedincomeearnedby such
officialsfrom theirorganizationsin determiningthe rateof tax on earnings
deriving from other sources. That decisionseemedto be based on non-recognition
of that categoryof employeesas staffmembers(officials) of organizations in the
United Nations common system. On behalfof the United Nations Office at Genevaand
all the specialized agencies at Geneva,the Secretary-General took actio on this
questionby sending a letter to the Presidentof the Swiss Confederation, referring
in particularto the right of the organizations to freely determinethe categories
of their personnelwhom they consideredto be officials,solelywithin the limits
of the relevant charters,constitutions and staffregulations andsubjectto
controlonly by Member States as collectively representedin the variousgoverning
bodies. In May 1989 the Head of the FederalDepartmentfor ForeignAffairs
informedthe Secretary-General that the FederalCouncilhad requested the State
Councilof the ~e~ublicand Cantonof Genevato desist from applyingthe
global-rate system to the taxableincomeof officialsholding short-termcontracts
and that the Geneva Council of State hadacceded tothis request.
I:. ..:
I 20. In Burundi, the Governmentadoptedon 31 December1988 a decreeestablishinga
'I. A/C.5/44/11
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servicetax on impoitedor exportedarticles,including"exemptedarticles". Such
a tax represents a directtax frompaymentof which theUnited Nations and
specializedagencies are exemptunder section 7 (a) of the Conventionon the
Privilegesand Immunitiesof the United Nations andsection9 (a) of the Convention
on the Privilegesand Immunitiesof the Specialized Agenciesrespectively.
Therefore, theadoptionof the decreegave rise to concertedactionon the partof
the organizations of the UnitedNationssystemrepresentedin Burundi, whereby they
expressedtheir concern overthe adoptionof such a measurewhich contradictsthe
provisionsof the aboveConventions. The Governmentof Burundi admitted the
legitimacyof such concernand on 29 March 1989 agreedto refrainfrom applyingthe
aforementioned tax to the UnitedNationsand specialized agencies.
. The UnitedNationsTruce Supervision Organization (UNTSO) reported problems
experienced byit with regardto taxation. They are disclosei dn detailin
annex 11 to the presentreport. The 2 per cent ad valoremtax mentioned byUNTSO
similarlyaffectsthe activitiesof the UnitedNations1nterim.Force in Lebanon
(UNIFIL).
IV. OTHERMATTERS INVOLVING THE STATUS,PRIVILEGES
AND IMMUNITIESOF OFFICIALS
22. As was indicated in thpereviousreport,the UnitedStates informed the
Secretariat ofthe UnitedNationsby note verbaledated14 June 1988 about its
policy withregardto the implementation of laws applicableto the employmentof
non-residentaliensin the United States (see A/C.5/43/18, paras. 25-27). The
Secretariatof theUnitedNations inits response to thisnote expressed concern
that the stringent applicatioo nf the immigration regulatiow nsuld substantially
interferewith the authorityof the Secretary-Generat lo recruitstaff under
Article101 of the Charterof the UnitedNations and woule dntail serious financial .
consequencesfor the Organization.
i 1
3. In order to resolvethe difficulties,consultations were undertaken between
officialsof the UnitedNationsand the UnitedStates. They resulted inthe
I achievementin March 1989 of a workingarrangementfor visa conversion and local.
recruitment. It is understood that this arrangementis without prejudice to the
positiontakenby theSecretary-General on the stringentapplicationof immigration
regulationsby theUnitedStatesauthorities, or to any furtherdiscussionsthat
may be held on the issue.
24. The Secretary-Generad leems it important to reportrecent developments
relatingto Mr. DumitruMazilu, aformermemberof the Sub-Commission on Prevention
Of Discrimination and Protectionof Minorities, chargeb dy the Sub-Commission in
1985 with the preparation of a reporton the questionof human rightsand youth.
Mr. Maziluwas not permittedby theRomanianauthorities to travelto Genevato
Presenthis reportto the Sub-Commission and the Secretary-Generaw las unableto
.establish personal contactwith Mr. Mazilu.
,.- 25.In the circumstancest ,he ~conomic'and SocialCouncilof the United Nations
1..adopted,on 24 May 1989,resolution1989/75entitled"Statusof special
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Page 8
rapporteurs". This resolutioncontaineda requestto the International Court of
Justice togive .itsadvisory opinion"on the legal questionof the applicability of
articleVI, section 22, of the Conventionon the Privilegesand Immunitiesof the
United Nationsin the case of Mr. DumitruMazilu as Special'Rapporteurof the
Sub-Commission". In accordancewith article 65 of the Statuteof the Court, the
Secretary-General transmittedto it a dossierof documents likelyto'throwlight
upon thequestion. In addition, theLegalCounselof the United Nations,on behalf
of the Secretary-General, submittedto theCourt,on 28 July 1989, adetailed
writtenstatement.outlining the legal positionof the UnitedNations on the
matter. Following oralhearingsheld on 4 and 5 October 1989, the Court is
expected togive its advisoryopinionbeforethe end of the year.
V. MEASURESAND PROPOSALSIN FURTHERANCE OF
THE SAFETY AND THE SECURITYOF OFFICIALS
26. The procedures recommendedby the UnitedPations Staff-Management
Co-ordinationCommittee (SMCC),which were outlinedin paragraph 7 of the reportat
its thirty-ninthsession to the GeneralAssembly(A/C.5/39/17)remainedin place.
The United Nations SecurityCommittee hasmet regularly toreview and follow-up
cases involvingdisregard for the privileges and immunitiesof officialsand to
advise theSecretary-Generalon cases that cannotbe resolvedat the local level.
The United NationsSecurityCo-ordinatorhas served as a focal point for assuring
the flow of information withinthe United Nations systemwith regard tothe
protectionof privileges and immunitiesof staffmembers and in helpingto develop
a concertedresponse bythe systemto the violations.ofthese privileges and
immunities. Whenever the situationso required,the Secretary-General has
intervenedpersonallyor had recourseto specia1,representatives. The heads of
agencies andrelated organizations acted likewise.
VI. CONCLUSION
27. During the reporting keriod,the numberof cases involvingarrestand
detentionof officials remainedvery high. As underscoredin the report,most of
them are concentratedin one geographicalareawhere, in the past severalyears,
the situationhas given rise to extremeconcern. An additionallydisturbingfactor
is that some other areas, from time to time,witness outburstsof breachesof
respect for theprivileges and immunitiesof officials. The Secretary-General
stronglybelieves that any changefor the betterrequires mutualefforts byMember
Statesand internationalorganizations. Discussionsat the GeneralAssembly of the
reportspresentedby the Secretary-General on behalf of ACC providesan opportunitY
to identifythe problems of greatestconcern andto eleboratemeasuresto remedy
the situation. It also assistsin bringingabout amore informed approach of -
Member States towards respectfor privilegesand immunitiesof officials. The
Secretary-Generalis determined,as in the past, to work togetherwith the
respectiveexecutive headsand with the authorities of Governmentsconcernedto
assurestrict implementationof the internationalagreements concerning privileges
and immunitiesof internationalorganizations and their'officials,.
Request for Advisory Opinion (including the dossier of documents transmitted to the Court pursuant to article 65, paragraph 2 of the Statute)