INTERNATIONAL COURTOFJUSTICE
Peace Palace, 2517 KJThe Hague. Tel.(31-70-302 23 23). Cables: Intercourt, The Hague.
Telefax (31-70-364 99 28). Telex 32323. Internet address: http: Il www.icj-cij.org
Communiqué
unofficial
forimmediatrelease
No. 98/32
9 October 1998
Difference Relating to Immunity from Legal Process
of a Special Rapporteurof the Commission on Human Rights
Request for an adyisoey opinion by ECOSOC
The Secretary-Generalof the United Nations and seyen States
• bave submitted written statements
THE HAGUE, 9 October 1998. The Secretary-General of the United Nations and
seven States have submirtedwrirten statements in the case of the Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission Human Rights (request for
an advisory opinion).
The request for an advisory opinion was made last August by the Economie andial
CounciJ (ECOSOC), one of the six principal organs of the United Nations.
In an Order dated 10August 1998,Judge ShigeruOda, the Senior Judge of the International
Court of Justice (ICJ), decided that the United Nations and the States parties to the Convention on
the Privileges and Immunities ofthe United Nations (the interpretation or application ofwhich is
the source of the difference) were likely to fumish information on the question submirted
to the Court by ECOSOC. He fixed 7 October 1998 as the time-1imit within which wrirten
statementson the question could be submitted ta the Court.
Besiclesthe Secretary-General of the United Nations, the following States have submitted
written statements within the fixed time-limit: Rica, Germany, ltaly, Malaysia, Sweden,
United Kingdom and United States of America.
These written statements are not yet available to the press and public. They will be made
public on or after the openingthe oral proceedings.
By virtue of the Order of 10 August 1998,the Secretary-General of the United Nations and
the above-mentionedStates now have until6 November98to file written comments on the other
written statements.
The present case relates to Mr. Dato' Param Cumaraswamy, a Malaysian jurist who was
appointed Special Rapporteur on the independence of judges and lawyers in 1994 by
the Commission on Human Rights, an organ of ECOSOC. - 2-
According to a note addressed to ECOSOC by the United Nations Secretary-General,
Mr. Kofi Annan, on 28 Joly 1998, Mr. Cumaraswamy currently faces four lawsuits filed in
Malaysian courts by different plaintiffs for damages in a total amount of 112 million US dollars
following an interview that he gave in November 1995 to International Commercial Litigation, a
magazine pub1ished in the United Kingdom but a1so circulated in Malaysia. ln that interview,
he commented on certain litigations that had been carried out in Malaysian courts. The plaintiffs
assert that the words of Mr. Cumaraswamy were defamatory.
After the first lawsuit was filed, the United Nations Legal Counsel, Mr. Hans Corell, acting
on behalf of the Secretary-General, considered the circumstances of the interview and of the
controverted passages of the article and determined that Mr. Cumaraswamy bad spoken in his
official capacity as Special Rapporteur. He stated that accordingly, by virtue of Section 22 of
Article VI of the Convention on the Privileges and Immunities of the United Nations,
Mr. Cumaraswamy was immune from legal process. On 15 January 1997, the Legal Counsel sent
a Note Verbale to the Permanent Representative of Malaysia to the United Nations, requesting the
competent Malaysian authorities "to promptly advise the Malaysian courts of the Special
Rapporteur's immunity from legal process". •
On 7 March 1997, the Secretary-General issued a note confirming that "the words which
constitute the basisof plaintiffs' complaint in this case were spoken by the Special Rapporteur in
the course of his mission" and that he was "immune from legal process with respect thereto".
Identical certificates of the Special Rapporteur's immunity were issued laterwhen new lawsuits were
filed. According to the Secretary-General however, these notes did not lead to any appropriate
intervention in the Malaysian cour:ts by the Malaysian Govemment to ensure respect for
Mr. Cumaraswamy 's immunity, nor were they taken into account by these courts.
Considering that a difference bad arisen between the United Nations and the Govemment of
Malaysia with respect to the immunity from legal process ofMr. Cumaraswamy, on 5 August 1998,
ECOSOC adopted a resolution requesting the Court to give, on a priority basis, an advisory opinion:
"on the legal question of the applicability of Article VI, Section 22, of the Convention on the
Privileges and lmmunities of the United Nlitions in the case of Data' Param Cumaraswamy
as Special Rapporteur of the Commission on Human Rights on the independence of judges
and la-wyers,taking into account the circumstances set out in paragraphs 1 to 15 of the note
by the Secretary-General, and on the legal obligations of Malaysia in this case".
The request for an advisory opinion was received in the Registry of the Court
on 10 August 1998 by telefax from the United Nations Secretary-General. The Govemment of
Malaysia had indicated that it did not oppose the submission of the matter to the Court and that it
would make its own presentations to the ICJ, which it bas now done.
Website of the Court: http://www.icj-cij.org
Information Office
Mr. Arthur Witteveen, Secretary of the Court (tel: 31-70-302 2336)
Mrs. Laurence Blairon, Information Officer (tel: 31-70-302 2337)
E-mail address: [email protected]
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion by ECOSOC - The Secretary-General of the United Nations and seven States have submitted written statements