Communication from Malaysia concerning Replies given by the United Nations to the Questions put by Judges Guillaume and Koroma

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KBMN2/99

The Embassy of Malaysia presents its compliments to the International Cowt of Justice

'
and has the honour to thank the latter for the transmission on 23 December 1998 of the

letter with annex dated 18 December 1998 containing the answers given on bebalf of the

~ecretary o ~ftGe U nitedr Naatlions to the questions put by Judges Guillawne and

Kororn.aon 10 December 1998.

The Govemment of Malaysia hopes particularly in the light of the invitation in the

opening sentence of JudgeKoroma's question (CR 98/17, p. 53), that it may be pennitted

tc submit the atmched comments for transmission to the Judges of the Court.

The Embassy of Malaysia avails itself of this opportun.ity to renew to the

International Court of Justice the assurances ofits highest consideration.

The Hague

7 January, 1999

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DIFFERENCE RELATING JO IMMUNITY FROM LEGAL PROCESS
OF A SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN
RIGHTS: COMMENTS BY THEGOVERNMENT OF MALAYSIA ON
THE ANSWERS ON BEHALE OF THE SECBETARY=GENERAL OF

THE UNITED NATIONS JO THE QUESTIONS ASKED BY JUDGES
GUILLAUME AND KAROMA

1. With respect ta the answer to the auestion asked by Judge
•
Guillaume:

1. The Government of Malaysia observes that in the summary

record of Mr. Zacklin's statement on 5 August 1998 (E/1998/SR.49.

p.3) there appears the following: "Mr. Zacklin ....:stressed the

importance of retaining the reference ta the circumstances of the

case in operative paragraph 1, since the phrasing was not binding on

th~ether party,which had inany case aoproyed the text"(emphasis

supplied).

2. The Government of Malaysia foresees the possibilitythat the

words underlined inthe above-cited extractmay be read as indicating

that the Government of Malaysia had approved the amended text of

the question as presented ta the ECOSOC in E/1998/L.49. Such a

reading would not correspond with the facts. The Government of

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Malaysia at no time approved the text of the question that appeared

in E/1998/L.49 or as eventually adopted by ECOSOC and submitted

to the Court. Malaysia never did more than "take note" of the

question as original/y formulated by the Secretary-General and

·submitted tc the ECOSOC in document E/1998/94 (see summary

record of the statement made by Data' Hasmi, Observer for

Malaysia, on 31 July 1998 (E/1998/SR.48, p. 2). At that same

meeting Mr. Hasmi was reported as saying: "..... the Gove~nmen oft
•

Malaysia was not going ta participate in preparing a joint submission

tc the curr_entsession of the Council ...."(ibid, p. 3).

3. The Government of Malaysia thus finds in the Summary

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Records of the relevant ECOSOC meetings full confirmation of the

statement made to the Court on îts behalf that only the draft question

original/y submitted by the Secretary-General ta ECOSOC in

document E/1998/94 was appropriate for submission tc the Court as

being limited to the difference which had actually arisen between the

Secretary-General and Malaysia. Correspondingly, Malaysia never

consented to the amended form of question which was ultimately

respeetiveThe Covemmentrhad never seen them before they were
communicatedtoit by the Reguf tt1e Court on 23 Oec1998.

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07/01 "99 DON 08:01 [TX/RX NR 8820] ~005 submitted by ECOSOC ta the Court and which, sa the Secretary~

General bas argued, extended the question beyond that of the

degree of authority ta be accorded ta the Secretary-General's

certificate to that of whether the Special Rapporteur had been acting

in the course of the performance of his mission.

4. The Government of Malaysia affirms îts submission that

ECOSOC did not have the power ta expand the question put tc the

Court from a "legal question", as foreseen in Article 65 of the Court's

Statute to a question which, as identified by the Secretary-General,

was "a question of fact whîch depends upon the circumstances of­

each particular case". ·(See paragraph 6 of the answer ta the

question by Judge Koroma).

Il. Wjth respect to the answer to the QUestion.by Judge Kororna

5. The Government of Malaysia respectfully submits that the

honourable Judge's question is not relevant to the on/y question that

it is withinthe power of the Court to answer, namely, the question of

the degree of authority 1obe attached to the Secretary-General's

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certificate. The Government of Malaysia will, therefore, refrain from

commenting on the substance of the Secretary-Generaf's response.

--6. Nonetheless, without departing from this position, the

Government of Malaysia draws attention tc certain statements made

in paragraphs 6 and 7 of the Answer.

7. ln the last sentence of parag-raph 6 there appear the words:

"....the_Secretary-Genera 1 noted that ....". Sim iarly, in the first

sentence of paragraph 7 there appear the words: "... the Secretary­

General then determined that ...."; in the second sentence the words:

" ..... the Secretary-General noted that ...";and in the third sentence

the words ".... the ·secretary-General aIso considered ........ and

concluded ........ ".

8. ln each of these expression the past tense of the verb has

been used, as if these actions- "noted", "determined", "considered"

and ''ccncluded" - had actuatty taken place. However, the

Government of Malaysia is unable to find in the documents before

the Court any record of these processes having taken place. At

most. the processes here described are cnes that either went on in

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an unstated manner in the mind of the Secretary-General at seme

unspecified date or they are processes which are retrospectively

beîng attributed ta the Secretary-General in arder to bolsterthe

argument advanced on his behalf that the acts of the Special

Rapporteur occurred in the course of the performance of his mission.

Either way, the absence of any such exptanations from the certificate

actually issued at the relevant times by the Secretary-General taints

' them with a degree of arbitrariness and deprives them of such

persuasive effect as perhaps they might otherwise have had.

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