COUR INTERNATIONALE DE JUSTICE INTERNATIONAL COURT OF JUSTICE
EMBASSY OF SWEDEN
The Embassy of Sweden presents its compliments to the
Registrar of the International Court of Justice, and with
reference to the letter of 10 August 1998 by which the
Government of Sweden was invited to present its views
regarding the case of Dato' Param Cumaraswamy, has the honour
to communicate the following.
The Government of Sweden is very concerned about the case of
Dato' Param Cumaraswamy, Special Rapporteur of the Commission
on Human Rights on the independence of judges and lawyers. The
Government therefore considers it essential to convey its
views on the legal questions pending before the International
Court of Justice. It is the Government's firm belief that
undermining the immunity of a Special Rapporteur appointed by
the Commission on Human Rights would constitute a serious
threat to well established UN mechanisms for the monitoring of
human rights.
The raison d'être of the privileges and immunities of
international organisations is their functional necessity.
This doctrine is generally accepted and has through a number
of cases, both before the International Court of Justice (ICJ)
and the Court of Justice of the European Communities, become
legal practice.
The very essence of this doctrine is that certain protection
is given to the organisation vis-à-vis national authorities in
order to protect the independent exercise of its functions.
Without this protection no international organisation would
function properly.
As is the case in many international organisations, the United
Nations (UN) to a certain extent employs experts who do not
enjoy the status of UN officials. The use of such experts is a
fundamental part of the overall ability of the United Nations
to function properly. The experts have been regarded by the UN
as "experts on missions" within the meaning of Article VI,
Sections 22 - 23, of the Convention on the Privileges and
Immunities of the United Nations (the Convention). This view
has subsequently been confirmed by the ICJ in the so called
Mazilu case.In order to guarantee the independence of international
organisations, it is normally stipulated in agreements
concerning privileges and immunities that the head of the
organisation has the exclusive right to determine whether the
immunity of an expert shall be waived or not.
This is also the case concerning the UN. Article VI, Section
23, of the Convention stipulates;
"Privileges and immunities are granted to experts in the
interests of the United Nations and not for the personal
benefit of the individuals 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, the Convention has left to the Secretary-General (S-G)
to determine whether or not, in his opinion, the immunity of
an expert can be waived without prejudice to the interests of
the UN.
To be able to do so the S-G must of course first determine
whether a certain act has been done or words have been spoken
or written by an expert in the course of the performance of
his or her mission, i.e. if there is any immunity to waive.
Not until then can he determine whether or not, in his
opinion, the immunity of an expert can be waived without
prejudice to the interests of the UN in the case at hand.
Thus, the right to determine whether an expert is protected by
immunity or not is solely and exclusively vested in the S-G.
Since the right to determine whether an expert is protected by
immunity has been solely and exclusively conferred to the S-G,
such a decision must also be considered to be conclusive,
subject only to the possibility to challenge the decision in
accordance with the procedure set forth in section 30 of the
Convention in which case the matter will be decided by the ICJ
with binding effect for both parties.
The Embassy of Sweden avails itself of this opportunity to
renew the assurances of its highest consideration.
The Hague, 6 October 1998
The International Court of JusticeTHE HAGUE
Written Statement of the Government of the Kingdom of Sweden