Non- Corrigé
Uncorrecteci I
InternationaCourt Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1998
Public Sitting
held on Monday7 December 1998, aIOam, at the Peace Palace,
President Schwebelpresiding
in the case concerning the Difference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission on Rights
(Requestfor Advisory Opinion)
VERBATIMRECORD
ANNEE 1998
Audience publique
tenue le lundidécembre 1998à 10heures, au Palais de la Paix,
sous la présidence deM. Schwebel,président
en l'affaire dufférendrelatàl'immunitédejuridiction d'un rapporteur spécial
de la Commission des droits de l'homme
(Requêtepouravk consultatzJl
COMPTE RENDUPresent: President Schwebel
Vice-President Weeramantry
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Registrar Valencia-OspinaPrésents: M. Schwebel, président
M. Weeramantry, vice-président
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins,
MM. Parra-Aranguren,
Kooijmans
Rezek,juges
M. Valencia-Ospina, greffierTheSecretary-General of the UnitedNations is represented by:
His ExcellencyMr. Hans Corell, Under-Secretary-Generalfor Legal Affairs, The Legal Counsel,
Mr. Ralph Zacklin, Assistant Secretary-Generalfor LegalAffairs,
Mr. Anthony Miller, Principal Legal Officer, Office of the LegalCounsel,
Ms. Mona Khalil, Legal Officer, Officeof the Legal Counsel.
The Government of Costa Rica isrepresented by:
His ExcellencyMr. José deJ. Conejo, Ambassador of Costa Ricato the Netherlands,
Mrs. Gabriela Mufioz,
Mr. Charles N. Brower, White & Case LLP,
Mr. Charles H. Brower II, Croft VisitingAssistantProfessor of Law,University of Mississippi
School of Law
The Government of ltaly is represented by:
Mr. Umberto Leanza, Head of the Diplomatic Legal Service at the Ministry of ForeignAffairs,
Mr. Luigi Sico,Professor of International Law at the Universityof Naples,
Mrs. Ida Caracciolo, researcherin international law at the University of Rome.
The Government ofMalaysia isrepresented by:
Dato'Heliliah bt Mohd Yusof, SolicitorGeneral of Malaysia,
Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of
Cambridge,Member of the Institutde Droit International
His Excellency Mr. A. Ganapathy, Ambassador of Malaysia to the Netherlands, Embassy of
Malaysia,
Datuk Ahmad bin Haji Maarop, Head of the Advisory and InternationalLaw Division, Attorney
General's Department, 1
Mr. Daniel Bethlehem, Barrister, Deputy Director of the Lauterpacht Research Center for
InternationalLaw and Lecturer in Law, University of Cambridge,
Mrs. Surinabt Ali, FederalCounsel, Advisoryand InternationalLawDivision,AttorneyGeneral's
Department, - 5 -
Le SecretaireGeneral des Nations Uniesest représenté par :
S. Exc. M. Hans Corell, Secrétaire général adjoint aux affairesjuridiques, conseillerjuridiquede
l'organisation des Nations Unies,
M. Ralph Zacklin, Sous-Secrétaire général aux affairesjuridiques,
M. Anthony Miller, administrateur général au bureau du conseillerjuridique,
Mme Mona Khalil, juriste au bureau au conseillerjuridique.
Le Gouvernementdu CostaRica est représenté par :
S. Exc. M. Joséde J. Conejo, ambassadeur du Costa Rica aux Pays-Bas,
Mme Gabriela Muiïoz,
M. Charles N. Brower, membre du cabinet White & Case LLP,
M. Charles H. Brower II, Croft Visiting Assistant Professorof Law à la faculté de droit de
l'universitédu Mississipi.
Le Gouvernementd'Italieest représenté par :
M. Umberto Leanza, chef du service du contentieux diplomatique du ministère des affaires
étrangères,
M. Luigi Sico, professeur ordinaire de droit international auprèsde l'université de Naples,
Mme Ida Caracciolo, chercheur de droit international auprèsde l'universitéde Naples.
Le Gouvernementde Malaysie est représenté par :
Dato'Heliliah bt Mohd Yusof, Solicitor General de Malaisie,
Sir Elihu Lauterpacht, C.B.E., Q.C.,professeur honoraire de droit international à l'universitéde
Cambridge, membre de l'Institut de droit international,
S. Exc. M. A. Ganapathy, ambassadeur de Malaisie aux Pays-Bas,
Datuk Ahmad bin Haji Maarop,jurisconsulte et directeur de la division du droit international du
ministère dela justice,
M. Daniel Bethlehem, avocat, directeur adjoint du centre de recherche Lauterpacht en droit
internationalde l'université deCambridge,
Mme Surina bt Ali, conseil fédéral, division des affaires juridiqueset du droit international du
ministère dela justice,Miss Farhana bt Rabidin, Federal Counsel, Advisory and InternationalLaw Division, Attorney
General's Departrnent,
Mr. Abdul Rahman bin Mohd Redza, Federal Counsel, Drafting Division, Attorney General's
Department.Mme Farhana bt Rabidin, conseil fédéral, division des affairesjuridiques et du droit international
du ministèrede la justice,
M. Abdul Rahman bin Mohd Redza, conseil fédéral, division de la rédaction duministère de la
justice. - 8 -
The PRESIDENT: Please be seated. The sitting is open.
The Courtmeets today,in accordancewith Article 66,paragraph 4,of its Statute,to hear oral
statements relating to the request for an advisory opinion submitted to it on the question of the
DzflerenceRelatingto ZmmuniQfromLegal Process of a SpecialRapporteurof the Commissionon
HumanRights. The Court was seised of this request followingthe adoption, on 5 August 1998,of
a resolution by the Economic and SocialCouncil of the United Nations(ECOSOC),requestingthe
Courtto give an advisory opinion, on a priority basis. ECOSOC'sdecision refers, in its preamble,
to "a difference [which] hasrisen between the United Nations and the Government of Malaysia,
withinthe meaning of Section30 of the Conventiononthe Privileges andImmunitiesofthe United
1
Nations . . ." Thisresolution,together with a note by the Secretary-Generalof the UnitedNations,
was transmitted to the Court by facsimile on 10 August 1998. May 1 ask the Registrar to read out
the operative clause of ECOSOC Decision No. 19981297of 5 August 1998, which sets forth the
question on which the Court'sopinion has been requested.
The REGISTRAR: The Economic and Social Council, requestson a priority basis, pursuant
to Article 96, paragraph 2, of the Charter of the United Nations and in accordance with General
Assemblyresolution 89 (1),an advisory opinionfrom theInternationalCourt of Justice onthe legal
question of the applicability of Article VI, Section 22, of the Convention on the Privileges and
w
Immunities of the United Nations in the case of Dato' Param Cumaraswamyas SpecialRapporteur
of the Commission on Human Rights on the independence of judges and lawyers, taking into
accountthe circumstancesset out in paragraphs 1to 15of the note by the Secretary-General, and
on the legal obligations of Malaysia in this case.
The PRESIDENT: Pursuant to Article 66, paragraph 1, of the Statute, the Registrar, by
communications dated 10August 1998, gave notice of the request for an advisory opinion to al1
Statesentitled to appear before the Court. Pursuant to Article 66, paragraph 2, of the Statute, by
an Order also dated 10August 1998, the Senior Judge, acting President of the Court under -9-
Article 13,paragraph 3,of the Rules of Court, decided thatthe UnitedNations andthe States parties
to the Convention on the Privileges and Immunities of the United Nations were likely to be able
to furnish informationon the question submitted to the Court. Bearing in mind that the request for
an advisoryopinion was expressed to be made "ona prioritybasis", he fixed 7 October 1998as the
time-limit within which written statements on the question might be submitted to the Court in
accordance with Article 66, paragraph 2, of the Statute, and 6 November 1998 as the time-limit
within which States and organizations having presented written statements might present written
cornrnentson other written statements, in accordance with Article 66, paragraph 4, of the Statute.
The United Nations and the States parties to the Convention on the Privileges and Immunities of
the United Nations were immediately so advised.
Written statementswere submittedbythe Secretary-General ofthe UnitedNations and bythe
following States: Costa Rica, Germany, Italy, Malaysia, Sweden, the United Kingdom and the
United States of America. A written statement was received from Greece on 12 October 1998;
leave was given for late filing. Writtencomments on those written statements were submitted by
the Secretary-General of the United Nations and Costa Rica, Malaysia and the United States.
The Secretary-Generalhas sentto the Court, inapplication of Article 65,paragraph 2, of the
Statute, a dossier of documents likely to throw light upon the question.
By communications dated 13 October 1998, the Registrar informed the United Nations and
the States to whom the original invitation to make written statements had been extended that the
Court would hold public sittings as from 7 December 1998, for the purpose of hearing their oral
statements or comments, if they wished to be heard. In addition to the United Nations, the
followingStates have informedthe Registraroftheir intentionto makeoral statements: Costa Rica,
Italy and Malaysia. The representative of the United Nations will be called upon to speak first,
followed, in alphabetical order, by the representatives of Costa Rica, Italy and Malaysia. - 10 -
The Court has decided, in accordance with Article 106 of its Rules, to make the written
statements and comments submitted with respect to the request for an advisory opinion accessible
to the public as of the opening of these oral proceedings.
1 give the floor to the representative of the United Nations, Mr. Hans Corell,
Under-Secretary-General for Legal Affairs and the Legal Counsel.
Mr. Corell, please.
Mr. CORELL: Mr. President, Members of the Court,
1. It is a great honour for me to be given the opportunity to address the International Court
*
of Justice in order to assist the Court in respondingto a legalquestion of particular importance and
interest to the United Nations. By its decision 19981297,adoptedby consensus on 5 August 1998,
the Economic and Social Council requested the International Court of Justice to give its advisory
opinion, on a priority basis,
"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 1to 15ofthe note by the Secretary-General,and
on the legal obligations of Malaysia in this case".
In operative paragraph 2, of that decision, the Council further
"calls uponthe Govemment of Malaysiato ensure thatal1judgements 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".
2. In this connection, it should be noted that proceedings in the four lawsuits against
Dato'Param Cumaraswamyhave beenfixed forhearing intheMalaysiancivilcourts duringthe first
week of February 1999.
3. The circumstances leading to this request for an advisory opinion pertain to a difference
that has arisen between the United Nations and the Govemment of Malaysia, within the meaning
of Section 30 ofthe Convention. This difference iswith respectto the immunityfrom legalprocess - 11 -
of Dato'Param Cumaraswamy,the SpecialRapporteur of the Commission onHuman Rights on the
independenceofjudges and lawyers. At issue isthe authorityofthe Secretary-Generalto determine
whether or not the words spoken by Dato'Param Cumaraswamy in an interviewand subsequently
published in an article entitled "Malaysian Justice on Trial" in the November 1995 issue of the
BritishmagazineInternationaI Commercial Litigation, if thesewords were spokenin the course of
the performance ofhis mission as SpecialRapporteur and, if so,whether underthe Convention,the
Governmentof Malaysiahas an obligationto give effect to the Secretary-General'sassertion of the
Special Rapporteur'simmunity from legal process with respect to the words spoken.
4. Mr. President, while 1do not intend to repeat the summary of the facts, 1would like to
refer to Part 1, paragraphs 6 to 31, of the written statement submitted on behalf of the
Secretary-General of the United Nations and to paragraphs 1 to
15 of the Note by the
Secretary-General contained inECOSOC document E/1998/94 (Dossier No. 59).
5. Mr. President,with your permission, 1now intend to focus on the four issues analysed in
Parts II to V of the Secretary-General'swritten statement, namely: (1) the status of the Special
Rapporteur as an expert on mission within the meaning of Article VI of the Convention; (2) the
immunity from legal process of the Special Rapporteur under Article VI, Section 22 (b) of the
Convention; (3) the Secretary-General's rights and duties with respect to the assertion or waiver
of the privileges and immunities of experts on missions under Article VI, Section 23, of the
Convention; and finally, (4) the obligationsof the Govemment of Malaysia pursuant to Section 34
of the Convention.
6. Following this summary, 1would like to make a few specific observations on the other
written statements and written comments submitted in these proceedings. The question of
responsibility for breach of obligationsill be addressed separately before1 draw the conclusions
on behalf of the Secretary-General.
7. Before going into the specifics of the present case, Mr. President, 1 should like to
emphasizethat the advisory opinion of the Court will have effects that go far beyond the issue of - 12-
the status of experts on mission. As a matter of fact, it is not possibleto distinguishthe role of the
Secretary-General in the present case and a situationwhere similar issues arise with respect to any
agent, whether an expert on mission or an official, of the United Nations. Therefore, the coming
advisory opinion will have far-reaching consequencesfor the Organization as a whole.
1. THE SPECIAL RAPPORTEURIS AN EXPERT ON MiSSION WITHIN THE
MEANING OF ARTICLE VI, SECTION22 OF THE CONVENTIONON
THE PRIVILEGESAND IMMUNITIESOF THE UNITED NATIONS
8. Mr. President, let me now focus on the first of the four main issues, namely,the status of
the Special Rapporteur. He1ecan be very brief.
9. The United Nations would first reiterate the fact that the Special Rapporteurs of the
Commission on Human Rights are accorded the status of experts on missions and are therefore
entitled to enjoy the privileges and immunities provided forction 22 of the Convention.
This isfirmly rooted in the established practice of the Organization and confinned by this Court
in its Advisory Opinion ofDecember 1989 in the case concerningApplicability ofArticle Vt
Section22, of the Conventionon thePrivilegesandImmunitiesof theUnitedNations,commonly
known as the"Mazilu Opinion".
10. As a Special Rapporteur of the Commission on Human Rights, Dato' Param
Cumaraswamy is therefore undeniably an expert on mission and is entitled to enjoy the privileges
and immunities provided for under Section 22 of the Convention. The status of the Special
Rapporteur is not an issue between the Parties.
II. THE SPECIAL RAPPORTEURIS ENTITLEDTO IMMUNITYFROM LEGAL
PROCESS UNDER ARTICLE VI, SECTION22 (b) OF THE CONVENTION
11. The secondmain issue,Mr. President, concernsthe SpecialRapporteur'simmunityfrom
legalprocess. In accordancewithArticle VI, Sect(b),ofthe Convention,experts performing
missions for the United Nations shall be accorded, "inrespect of wordsspoken or written and acts
done by them in the course of the performance of their mission, immunity from legal process ofevery kind". The immunity from legal process accordedto experts on missions by Article VI,
Section 22, of the Convention is strictly functional.
12.Consequently, as an expert on mission, Dato'Param Cumaraswamy is entitled to
immunity from legal process in respect of words spokenor written and acts done by him in the
course of the performance of his mission as a Special Rapporteur of the Commission on
Rights.
13.In the Mazilu Opinion,this Court confirmed that this immunityapplies also in the State
of which an expert on mission is a national. Paragraph 52 of the Opinion is of particular interest
in the present case:
"52. To sum up, the Court takes the view that Section 22 of the General
Convention is applicable to persons (other United Nations officiais) to whom a
mission has beenntrustedby the Organizationand who are thereforeentitled to enjoy
the privileges and immunities provided for in this Section with a view to the
independent exercise of their functions. During the whole period of such missions,
experts enjoyhese functional privileges andimmunities whether or not they travel.
They may be invoked as against the State of nationality or of residence unless a
reservation to Section 22 of the General Convention has been validly made by that
State."(1C.J:Reports 1989, pp. 22-23.)
14. As Malaysia accededto the Conventionon 28 October 1957withoutany reservation,the
Special Rapporteur's immunity from legal process,under Article VI, Section 22 (b), of the
Convention, may therefore be invokedas against the State of his nationality, Malaysia.
III. SUBJECTTO ARTICLEVI11OF THECONVENTION, THE
SECRETARY-GENERAL HAS THE EXCLUSIVE AUTHORITYU , NDER
ARTICLEVI, SECTION23, OF THE CONVENTIONTOWAIVE OR
MAINTAINTHEPRIVILEGES AND IMMUNITIESENJOYEDBY
EXPERTSON MISSIONUNDERSECTION22
15.Mr. President, the third main contention is that, subject only to Article VI11of the
Convention,the Secretary-General hasthe exclusiveauthority, under Article VI, Section 23,of the
Convention, to waive ormaintain the privileges and immunities enjoyed by experts on mission
under Section 22. There are five aspects that 1should like to address. - 14-
A. The legal basis of the Secretary-General'sauthority
16. The first aspect is the legal basis for the Secretary General's authority. This authority a
derives from Article VI, Section 23,of the Convention which provides as follows:
"Privileges and immunitiesare granted to experts in the interests of the United
Nations and not for the persona1 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 itcan be waived without prejudice tothe interests of the United Nations."
(Emphasis added.)
17. Theauthority grantedinArticle VI, Section 23,of the Conventiontowaive the immunity
of any expert on mission is vested exclusively in the Secretary-General, and waiver cannot be
J
effected insteadby the expert on missionhim or herselfor by the national courtsof a memberState
party to the Convention. Thatthe Secretary-General hasexclusive authority in this regard isborne
out not only by the terms of Article VI, Section 23, but also by the provisions of Article VIII,
Sections 29 and 30, for the settlement of disputes regarding al1differences arising out of the
interpretation or application of the Convention. The Convention foresees that disputes are not to
be settled by the national courts of a member State party to the Convention, but that differences
between the United Nations and a Member are to be decided by having recourse to the advisory
jurisdiction of this Court. In accordance with Section 30, the Court's advisory opinion shall be
accepted as decisive by the parties.
18. Mr. President, in its Advisory Opinion of 11 April 1949 in the case concerning
Reparation forInjuries SufJered in the Service of the Unite Ndations, known as the Reparations
case, here the Court stated, inter alia,
"To ensure the independence of the agent, and, consequently, the independent
action ofthe Organization itself,it is essentialthat inperforminghis dutieshe neednot
have torely on any other protection than that of the Organization.. .If he had to rely
on [the]State, his independencemight well be compromised, contrary to the principle
applied by Article 100of the Charter .. .".(I.C.J.Reports 1949, p. 183.)
The Court further stated that
"Upon examination of the character of the functions entrusted to the
Organization and ofthe nature of the missions of its agents, it becomes clear that the capacity ofthe Organizationto exercisea measure of functionalprotection of itsagents
arises by necessary intendment outof the Charter." (Ibid, p. 184.)
19. This statement of the Court's Opinion is in keeping with the position consistently
maintained by the United Nations, pursuant to the Convention and the Charter, that it is for the
Secretary-General, on behalf of the Organization, to afford experts on mission the functional
protection theyare entitled towhen they are acting inthe course ofthe performance of their United
Nations missions.
20. The Staff Regulations of the United Nations and General Assembly resolutions support
the conclusionthat the Secretary-Generalhas exclusive authority inmatters of assertion andwaiver
of the functional immunity of United Nations officials. It follows therefrom that the
Secretary-General hasthe same authority with respect to the functional immunityof experts on
missions. StaffRegulation 1.8,which was established bythe GeneralAssembly inaccordancewith
Article 101, paragraph 1, of the Charter, provides as follows:
"In any case where these privileges andimmunities arise,the staff member shall
immediately report to the Secretary-General, with whom alone it rests to decide
whether they shall be waived." (Emphasis added.)
21. The exclusive authority of the Secretary-General is inextricably linkedto his role as the
chief administrative officer of the Organization, under Article 97 of the Charter of the United
Nations, and to member States'obligation, under Article 100, paragraph 2, of the Charter, "to
respect the exclusively international characterof the responsibilities of the Secretary-General and
the staff and not to seek to influence them in the discharge of their responsibilities". The
exclusively internationalcharacter of the responsibilities of the Organization and its agents, both
officialsand experts onmissions,cannot be equally anduniformly maintained throughoutthe world
if their official activities were subject to challenge in the national courts of each member State.
22. The distinction betweenacts performed in an official capacity and those performed in a
private capacity, which lies atthe heart of the concept of functional immunity, is a question of fact
which depends on the circumstances of the particular case. The position of the United Nations is - 16 -
that it is exclusively for the Secretary-General to determine the extent of the duties and functions
of United Nations officials. Such a statement of the Secretary-General'sexclusive authority was
noted by the General Assembly without objection, in its resolution 361232of 18 December 1981.
In that resolution, the General Assembly appealed to member States to recognize the functional
immunity of a staff member asserted by the Secretary-General.
23. In subsequent resolutions, the General Assembly has repeatedly confirmed the
responsibilities of the Secretary-General to safeguardthe functional immunityof al1UnitedNations
officials. The Assembly strongly affirmed that disregard for the privileges and immunities of
officiaishas alwaysconstituted one ofthe mainobstaclestothe implementation ofthe missions and .I
programmes assigned to the organizations of the United Nations system by member States and
called upon member States to enable the Secretary-Generalto exercise fully the right of fünctional
protection. The GeneralAssembly has thus confirmed the position consistently maintained by the
United Nations with regard to the exclusive authority of the Secretary-General to determine the
extent of the duties and functions of United Nations officials and has called for recognition of the
Secretary-General'sassertions of their fünctional immunity.
24. Therefore,subject only to Article VI11of the Convention,it is forthe Secretary-General,
and not for the national courts of member States, to determine whether or not an act by an agent
rr'
of the Organization, be it a staff member or anexpert on mission,has been performed in an officia1
capacity or in the course of the performance of a mission for the United Nations.
B. TheUnited Nations established practice invariablyhasmaintainedthe Secretary-General's
exclusive authority to assert or to waive immunity
25. Mr. President, the second aspect in this context is the practice of the Organization. It is
the long-standing and establishedpractice oftheUnited Nationsthat the authoritytodetermine what
constitutes an "official" or "unofficial"act is vested exclusively in the Secretary-Generaland that
the question of whether the acts concerned were officia1 acts, cannot consistently with the
Convention, be determined by a national court. It is equally the established practice of the United - 17 -
Nations that, if the Secretary-General determines that the matter complained of is not related to
officia1functions, then no immunity is asserted. Moreover, even where immunity might exist, it
would always be incumbent uponthe Secretary-General to waive immunity where, in his opinion,
the immunity would impedethe course ofjustice and where the immunity can be waived without
prejudice to the interests of the United Nations.
26. The United Nations position is summed up in a statement to member Statesmade by the
Legal Counsel in the Fifth Committee of the General Assembly on 1 December 1981. 1 refer to
Dossier No. 84. In this statement,the Legal Counsel noted that subjecting a staff member to legal
process prevented the Secretary-General from exercising his rights under the international legal
instruments in force to independently determine whether or not an officia1act had been involved.
He noted that, where a determination was made that no officia1 act was involved, the
Secretary-General had, by the terms of the Convention, both the right and duty to waive the
immunity of any official. The Legal Counsel stated that it was not the intent of the provisions
regarding immunity from legal process or the principle of functional protection to place officials
above the law but to ensure, before any action was taken against them, that no officia1act was
involved and that no interest of the Organization was prejudiced.
27. TheDossier submittedbythe UnitedNations in accordancewith Article 65 ofthe Statute
of the Court illustrates not only the Secretary-General's readiness to waive the privileges and
immunities of officials and experts on missions when they would impedethe course ofjustice and
they could be waived without prejudice to the interests of the United Nations but also his
meticulousness in not assertingany immunitywherethe words or actscomplained of are notrelated
to the officia1functions of a United Nations officia1or to the mission or mandate entrusted to an
expert on mission. 1do not think that it is necessary to dwell upon this further.C. The Secretary-General exercised his exclusive authority to determine the scope of the
Special Rapporteur's mission andthe applicabilityof his immunity from legal process
28. Mr. President, 1 come now to the third aspect: the scope of the Special Rapporteur's
mission. In the present case, the Secretary-General at no point waived, or for that matter was ever
requested to waive, the immunity from legal process of the Special Rapporteur. The
Secretary-Generaldetermined that, inthisparticularsituation, Dato'Param Cumaraswamyhadbeen
interviewed in his official capacity as Special Rapporteur; that the article in the magazine
International Commercial Litigation clearly referred to his official capacity and to his United
Nations mandate to investigate allegations concerning the independenceofjudiciary; and that the 3
article itself and the passages at issue related to such allegations. Moreover, it is within the
discretion of SpecialRapporteurs of the Commission on Human Rightsto publicizetheiractivities,
and the Commission values such publicity as a means to raise consciousness about human rights
standards and violations. The SpecialRapporteur hadreported to the Commission on his working
methods and intention to conduct his own promotional activities in addition to those of the then
Centre for Human Rights.
29. Basedonthe foregoing,the Secretary-Generaldeterminedthatthewordswhichconstitute
the basis of the plaintiffs' complaint in this case were spoken by the Special Rapporteur in the
'Irr
courseof hismissionandhe,therefore,maintainedthatDato' Param Cumaraswamyis immunefrom
legal process with respect to these words. In this regard, it should be noted that, in its
resolutions 1995/36 of 3 March 1995, 1996/34 of 19 April 1996 and later in 1997123 of
11April 1997 and 1998135 of 17 April 1998 (Dossier Nos. 5-8), in al1 these resolutions, the
Commission on Human Rights has consistently noted with appreciation the Special Rapporteur's
determination to achieve wide dissemination of his activities. Moreover, when it renewed the
SpecialRapporteur'smandateforanadditionalthree yearsin itsresolution 1997123(Dossier No. 7),
theCommission,having hadthe benefit ofthree of the Special Rapporteur'sreports,was fullyaware
of the basis for his investigation of the Malaysian judiciary; of his dealings with the press; and - 19 -
of the lawsuits against him in the national Malaysian courts. The Commission'sdecision to renew
his mandate, therefore confirmed itsapproval of the SpecialRapporteur'sworkingmethodsas well
as of the performance of his mission of which public statements were a part, including making
statements to members of the press.
D. Maintaining the Special Rapporteur'simmunity wouldnot impede the course of justice
30. Mr. President, the fourth aspect is that maintaining the Special Rapporteur's immunity
would not impede the course ofjustice. Article VI11of the Convention providesremedies both to
private plaintiffs as well as to the Governmentsof member States parties to the Convention. The
Secretary-Generalacknowledgesthat cases of conflictmay ariseas to whether an actwas "official"
or whether an official or expert had exceeded his mandate, but the Convention expressly provides
for appropriate modes of settlement of private law disputes ifthe United Nations is a party to such
a dispute or if immunity has not been waived by the Secretary-General under Section 29. It also
provides for the referral of differences between the Organization and its member States to the
advisoryjurisdiction of this Courtpursuant to Section 30. These arethe appropriateproceduresfor
settlement of a difference of interpretation or application of the Convention, not the disregard or
adjudication of the Secretary-General'sdetermination by national courts.
E. Waiving the Special Rapporteur'simmunitywould prejudice the interests of the United
Nations
31. Mr. President, the fifth and last aspectwith respect to the Secretary-General'srights and
duties isthat waiving the SpecialRapporteur'simmunity would prejudicethe interestsofthe United
Nations.
32. The Secretary-Generalconsiders it most important that the principle be accepted that it
is for himself alone to determine whether members of the staff of the Organization or experts on
missions have spoken or written words or performed acts "in their officia1capacity"(in the case of
officials) or "in the performance of their missions" (in the case of experts on missions). Unless - 20-
recognition is accorded to the Secretary-General'sdeterminations in this respect, it will be for
national courtsto determine - and in respect of a given word or act there may be severalnational
courts,Mr. President - todeterminewhether anofficia1or an expert, oraformer officialorexpert,
enjoys immunity in respect of his or her words or acts. The adjudication of United Nations
privileges and immunities in national courts would be certain to have a deleterious effect on the
independence of officials andexperts, who would then have to fear that at any time, whether they
were still in office orafter 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. w
33. In the absence of complete independence,human rights expertsand Special Rapporteurs
would hesitate to speak out against and report violations of international human rights standards.
National adjudication wouldinevitably frustrate and,if allowed to proliferate, potentially endanger
the entire humanrights mechanism of the United Nationssystem. Moreover,any diminutionof the
Secretary-General's exclusive authority to waive or maintain the privileges and immunities of
experts on missions constitutesa parallel attack on his exclusive authority to preserve and protect
the privileges and immunities of the United Nations itself and its officials. 1refer to what 1said
at the outset about the effects of this case for the Organization as a whole.
F. Conclusion
34. In conclusion, with respect to this third main issue, Mr. President, the United Nations
maintains, and has consistently maintained that the Secretary-General has the exclusive authority,
subject to Article VI11of the Convention, to determinewhether or not words or acts are spoken,
written or done in the course of the performance of a mission for the United Nations and whether
such words or acts shall fa11within the scope of themandate entrusted to a United Nations expert
on mission. These matters cannot be determined by, or adjudicated in, national courts. It is clear
that if national courtscould overrule the Secretary-General's determinationthat a word or act wasspoken, written or done in the course of the performance of a mission for the United Nations, a
mass of conflicting decisions would be inevitable, given the many countries in which the
Organization operates. In many cases, it would be tantamount to a totalenial of immunity.
35. Likewise, it is unacceptablethat what the Secretary-Generaldetermines to be an "official
act" can bejudged by a national courtto have ceasedto have been such an act because that court
decides that the act is in excess of the mandate. This again, would be tantamount to a total denial
of immunity. The contentionthat it is for anofficia1or an expert on mission orthe UnitedNations,
on his or her behalf, to prove in a particular nationalcourt that the words complained of were
spoken in anofficia1capacity; that it was within the scopeof the performance of his or her mission
to do so; and that theofficial or expert on mission in question is therefore immune fiom legal
process with respect thereto, in and of itself constitutes a violation of their immunity and the
Organization'simmunity from legal process.
36. Mr. President,inorderto haveanyreal meaning,the words "immunityfrom legalprocess
of any kind" in Article VI, Section 2(b),of the Convention must include immunity fiom legal
proceedingsto determine the applicability and scopeofthat very immunity. Compelling an officia1
or an expert on mission to prove or defend his or her functional immunity in the national courts of
any member State effectively subjects him or her to legal process and thereby violates his or her
immunity, as well as the immunity of the Organization.
IV. THE GOVERNMENT OFMALAYSIAHAS AN OBLIGATION,UNDER
SECTION34 OF THE CONVENTION,TO GIVE EFFECT TO THE
PRTVILEGESAND IMMUNITIESENJOYEDBY THE SPECIALRAPPORTEUR
UNDER SECTION22 (b)
37. Mr. President, 1have now come to the fourth main issue, namely the obligation of the
Government of Malaysia pursuant to Article34 of the Convention. There are two aspects that 1
should liketo highlight briefly: the obligation and theensuing responsibility.A. The Government of Malaysia has an obligation to give effect to the Special Rapporteur's
immunity from legal process
38. Mr. President, the first aspect. Pursuant to Section 34 of the Convention, "[ilt is
understood that, when an instrument of accession is deposited on behalf of any Member, the
Member will be in a position under its own law to give effect to the terms of this convention".
Malaysia acceded to the Convention on 28 October 1957 without reservation.
39. In accordance with Section 34, the Government of a Member State party to the
Convention has an obligation to give effect to the immunity from legal processof an expert on
mission underArticle VI, Section 22 (b),of theConvention. Atthe very least,the latter obligation
includes the obligation of the Government to inform the competentjudicial authorities of the fact
that the Secretary-Generalof the United Nations has determined thatthe words or acts giving rise
to the proceedings in its national courts were spoken, written or done in the course of the
performance of a mission for the United Nations and that the United Nations has therefore
maintained the immunity from legal process of the expert on mission concerned with respectto
those words or acts. In addition, it is also incumbent uponthe Govemment, if necessary, to further
intemene in the proceedings to uphold and ensurethe respect for that immunity, thereby giving it
effect. Such interventions by the executive agents of a Government do not constitute interference
with the independence of the judiciary. In this respect, the United Nations further submits that
calling upon a Govemment of a member State to fulfil internationalobligations it had freely and
legally undertaken by virtue of its accession to the Convention without reservation constitutes no
disrespect to, orinfiingement upon, the properjurisdiction of the national courts of that member
State. As a matter of fact, Mr. President, interventions of this kind occur quite frequently.
40. The United Nations is of the view that Malaysia did not fulfil her obligations under the
Convention. To date, the Government of Malaysia has not transmitted or even referred to the
certificate of immunity issued by the Secretary-General on 7 March 1997to its competentjudicial
authorities. Nor has the Government otherwise formally informedthem that the Secretary-General - 23 -
of the United Nations had determined that the words giving rise to the proceedings in its national
courtswere spoken in the course of the performance of a mission for the United Nations and that
the United Nations had maintainedthe immunity from legal processof the SpecialRapporteur with
respect thereto.
41. Moreover, in accordancewith Section 22 (b) ofthe Convention,experts on mission shall
be accorded immunity from legal process of everykind "inrespect of words spoken orwritten and
acts done by them in the course of the performance of their mission". The Minister's Certificate
Statesthat Dato'Param Cumaraswamy"shallbeaccordedimmunityfrom legalprocessofeverykind
only in respect of words spoken or written and acts done by him in the course of the performance
of his mission". The word "only" is nowhere to be found in Section 22 (b)of the Convention. In
effect,the Minister's Certificateinvitedthe nationalcourtstoconcludethat itwas forthem to decide
whether or not the SpecialRapporteur spoke the words complained of in his officia1capacity and
whether doing so was within the scope of the mandate entrusted to him by the United Nations
Commission on Human Rights.
42. Mr. President, by failing to arnendor supplementthe Minister's Certificateof Immunity,
or otherwise intervene in the legal proceedings, so as to uphold or ensure respect for the
Secretary-General's certificate, the Govemment of Malaysia implicitly permitted its courts to
adjudicate the merits or othenvise of the Secretary-General'sdetemination as to the capacity and
scope of the mission of the Special Rapporteur. Thereby the Govemment failed to fulfil its
obligation under Section 34 of the Convention to give effect to the privileges and immunities
enjoyed by the Special Rapporteur under Article VI, Section 22 (b),thereof.
43. If, for whatever reason, the Govemment of Malaysia disagreed with the
Secretary-General's assertion of the Special Rapporteur's immunity from legal process, in the
absence of an agreed recourse to another mode of dispute settlement, they could have unilaterally
orjointly with the United Nations referred the difference to the Intemational Court of Justice for
an advisory opinion in accordance with Article VIII, Section 30, of the Convention. Pending the - 24 -
resolution of the difference between the Government and the United Nations, the Government of
Malaysia was and is required to ensure that al1judgments and proceedings are stayed. The
Govemment of Malaysia is called upon to do so, in operative paragraph 2 of the Council's
decision 19981297,pending receipt of the Court's advisory opinion which shall be accepted as
decisive by the parties.
B.The Governrnentof Malaysia is ultirnatelyresponsible for anycosts, expenses or damages
arising out of proceedings in its national courts
44. Mr. President, the second aspect: the ensuing responsibility. The United Nations
w
maintainsthat, if a Govemment fails to take appropriateaction to give effect to the immunities of
the Organization or its agentsand thereby allows the proceedings in its national courts to proceed,
the Govemment concemed would be responsible for any actual costs, expenses or damages arising
out of, or assessed by its courts.
45. While the United Nations intendsto elaborate further on this matter in a few moments,
it should be recalled here that this Court, in the Reparationscase (I.C.J.Reports 1949, at p. 174),
statedthat the Organizationhasthe capacityto makean internationalclaim forreparation for breach
of the obligations owed to it by a member State.
46. As the United Nations has maintained that the words that constitute the basis for the
v
plaintiffs'complaints were spoken by the Special Rapporteur in the course of the performance of
his mission, the Special Rapporteur should be held harmless for any costs, expenses or damages
incurredby, or assessedto, him in connectionwith the legal proceedingsagainsthim andtheUnited
Nations may make a claim for reparation in respect of those costs. The Special Rapporteur is
thereforeentitled to reimbursement by the United Nations for any suchcosts, expenses or damages.
Also, in the event that the Organization is compelled to directly assumese costs, expenses and
damages, the United Nations maintains that the Govemment of Malaysia is ultimately responsible
for any and al1such costs, expenses or damages actually paid or incurred by theSpecial Rapporteur - 25 -
andlorby the Organization directly or on his behalf. As 1said, Mr. President, we intend to revert
to this issue in a few moments.
V. IN RESPONSE TO THE WRITTEN STATEMENTSAND WRITTEN COMMENTS
SUBMITTEDBY STATES
47. Allow me now to make a few specific remarks in response to some of the observations
andconclusionsputforward inthewritten statementsand writtencomments submittedby the States
participating in these proceedings.
48. Mr. President, in paragraphs 9.7 and 9.8 of its written statement, the Government of
Malaysia contends that it is futile to refer the dispute to the Court pursuant to Article VIII,
Section30, of the Convention,at this stage. TheUnited Nationsmaintains that a difference relating
to the immunity from legal process of an expert on missionis quintessentially a difference arising
out ofthe interpretation or application of theConvention. Inthiscase, the difference arisesbetween
the United Nations on the one hand and a member State on the other hand. It is precisely a
difference ofthis kind whichhall be referred to the Court onthe basis of a request for an advisory
opinionin accordancewith Article 96 ofthe Charter and Article 65 of the Statuteof the Court. The
opinion given by the Court is not futile but must be accepted as decisive by the parties in
accordance with Section 30 of the Convention and operative paragraph 2 of ECOSOC
decision 1998/297.
49. In paragraph 4.7 of its written comments, the Govemment of Malaysia notes that the
written statement of the UnitedNations hasever addressed theSecretary-General'sright andduty
to waive but has instead focused on who has the right to waive.Quite the contrary, the United
Nations has consistently maintained that it is incumbent upon the Secretary-General to waive
immunity where, in his opinion, the immunity would impedethe course of justice and where the
immunitycould be waived without prejudiceto the interests of the United Nations. Moreover, the
fact that the Secretary-General's authority to determinewhether words were spoken in the course
of the performance of a mission and within the scope of a mandate entrusted to a United Nations -26 -
expert on mission is coupled with his right and du9 to waive immunity in accordance with
Section 23 of the Convention, isthe first conclusion reachedby the United Nations in its written
statement.
50. Furthermore, the United Nations again makes reference to the Dossier which clearly
illustrates not only the Secretary-General'sreadinessto waiveprivileges and immunities where, in
his opinion, they would impede the course ofjustice and where they could be waived without
prejudice to the interests of the United Nations, but also his meticulousness in not asserting any
immunity where the words or acts complained of are not related to the officia1functions or to a
United Nations mission or mandate.
r4
51. In paragraph 7.8 of its written statement,the Govemment of Malaysia contends that no
factshave been disclosed that waiverwould operate against the interests ofthe United Nations. At
the outset, it must be noted that, at no point, did the Govemment of Malaysia or the private
plaintiffs request a waiver of the Special Rapporteur's immunity. Asto the United Nations
contention that the adjudicationof the privileges and immunitiesin a national court wouldoperate
againstthe interestsof the UnitedNations generally,and thehumanrights mechanism of the United
Nations system specifically,the United Nations respectfully refers to DossiersNos. 28, 32, 33, 35,
36, 37,40,44, and 54 andto Part IV (E)of itswritten statement. The importanceof these interests
is confirmed in the written statements submittedby Costa Rica, Sweden, the United Kingdom of U
Great Britain and Northern Ireland and the United States of America.
52. In her letter to the Secretary-General of 2 October 1998, the High Commissioner for
Human Rights elaborates on the negative effectthat the nationaladjudication of the privileges and
immunities of Special Rapporteurs would haveon the United Nations human rights mechanism.
In that letter, the High Commissioner Statesinte rlia, that
"the unacceptable consequence of the Malaysian courts' rulings is that the special
rapporteur is ordered to defend himself on the merits of the suits filed against him
before the courts of Malaysia and that the Malaysian courts have arrogated to
themselves the power to determine the special rapporteur'scapacity and the scope of
his mission or mandate. It has to be furtherunderlined thatsince the mandate has been
formulated and established by the Commission on Human Rights, it is for the Secretary-General to determine whether a person seeking the protection of the
immunitiesprovided for inthe General Convention fits withinthe class of persons that
the Convention seeks to protect in light of themandate given by the Commission on
Human Rights andwhether such person spokewords in the course of his mission for
the United Nations. By having been orderedby the Malaysian courts to defend his
case at a full trial, the Special Rapporteur has effectively been denied the 'immunity
from legal processof every kind'to which he is entitled as an expert on mission under
Section 22 (b) of the General Convention."
The High Commissioner has also concluded that
"threatening the immunity of one expert constitutes an attack on the entire United
Nations system of experts on mission employed in the Organization's human rights
mechanism. What is more, thedecisions of the Malaysian courts not only affect the
immunities of experts on mission but also of the United Nations, UN officials, and
other persons working for the Organization. Indeed, if these decisions are not
corrected, they could have a chilling effect on the ability of independent experts to
speakout,incomplete independenceandimpartiality, againstviolationsof international
human rights standards."'
53. In paragraph4.13 of itswritten comments,the Governmentof Malaysia contendsthat the
position putforth by the United Nations and by the Govemment of the Republic of Costa Rica, if
accepted, "wouldappearto accordthe expert immunity in respectof anythingand everything uttered
or stated anywhere, everywhere and anytime which in other words means limitless immunity" and
that "it appears that for as long as in form theres publicity, the substance of contents are to be
disregarded evenif the publicity isdone indiscriminately". Mr. President, such a characterization
of the Secretary-General's determination completelydisregards the undisputed facts of this case.
The Govemment of Malaysia ignoresthat the Commission on Human Rights values publicity as a
means to raise consciousness about human rights standards and violations; it ignores that the
Commission repeatedly noted .withappreciation the Special Rapporteur'sdetermination to achieve
wide disseminationof his activities; andit ignoresthat the Commissionendorsed his dealings with
the press, includingakingpublicstatementson investigationswithin hismandate, when itrenewed
that mandate.
54. With respectto the substance of the contents of the article "Malaysian Justice on Trial"
which appeared in the November 1995 issue of the British magazine International Commercial
Litigation, the Govemment of Malaysia seems to ignorethat Dato' Param Cumaraswamy had been -28 -
interviewed in his officia1capacity as Special Rapporteur; that the article clearly referred to his
officia1capacity; that the article clearly referred to his United Nations mandate to investigate
allegations conceming the independence of the judiciary; and that the article and passages in
question clearly related to such allegations. This is explicitly set out in paragraphs 50 and 51 of
theUnited Nations written statement. Contraryto Malaysia's assertioninthiit isprecisely
the substance of the content of the article which led the Secretary-General to determine that the
words complained of inthe four lawsuits againstthe Special Rapporteur were spoken inthe course
of the performance of his mission and within the mandate entrusted to him by the Commission on
Human Rights. W
55. In Part V of its written comments, the Govemment of Malaysia addresses the question
ofthe binding force of General Assembly resolutions. Notwithstandingthe conclusions reached in
this regard, and as quoted in paragraph 5.5 of Malaysia'swritten comments, General Assembly
resolutions "constituteembodiment of the general views and wishes of the world community".
The General Assembly resolutions contained in Dossiers Nos. 106 to 112 reaffirm the
Secretary-General'sauthoritywith respecttoprivilegesand immunitiesandappealtomember States
to recognize the functional immunities asserted bythe Secretary-General. It is submittedthat these
resolutions would seem to unequivocally demonstrate that the general views and wishes of the
international communityconfirmthe positionwhich hasbeen consistentlymaintainedbythe United -
Nations.
56. In Part VI of its written comments,the Govemment of Malaysia endeavoursto establish
that recognition of the Secretary-General'sexclusive authority to determine whether words or acts
are spoken, written or done in the course of the performance of a mission, would constitute a
derogation of the sovereign jurisdiction of member States and their national courts. The United
Nations respectfully reiterates that calling upon the Govemment of a member State to fulfil
intemational obligations it had fieely and legally undertaken by virtue of its accession to the - 29 -
Convention without reservation constitutes no disrespect to, or infringement upon, the proper
jurisdiction of the national courts of that member State.
57. It is also worth mentioning in this connection that in paragraph 6.15 of its written
comments, the Govemment of Malaysia contends that the Notes Verbales issued by the
Secretary-General certifyingthe Special Rapporteur'simmunity from legalprocess are "juridically
considered a nullity" and are "therefore of no effect for Malaysia to comply in issuing the
Certificate of the Minister". 'fie United Nations considers Malaysia'sconclusions in this regard
unacceptable. Moreover, Malaysia's conclusion does not find support among the member States
which have submitted written statements and comments. In their written statements, the
Governments of Costa Rica, Germany and Sweden supported the United Nations position with
regard to Secretary-General's exclusive authority. The United Kingdom and the United States
argued that unless there are compelling or powerfully contrary circumstances, the
Secretary-General's determination mustbe given great weight and deference. Such weight and
deference are a far cry from Malaysia's characterizationof the Secretary-General'scertificates as
being a nullity having no legal effect.
58. In paragraph 7.8 of ïts written statement, the Govemment of Malaysia arguesthat "even
assumingthat the Secretav-General has such an authority the question iswhich, then, will be the
authority to determine whether the exclusive authority has been properly exercised, reasonably
exercised or exercised in good faith". Malaysia proceeds to conclude that the vesting of such
authority solely in one person would establish absolute immunity. The United Nations, in
accordance with Section 30 of the Convention has stipulated and consistently maintained that,
absentrecourseto anotheragreedmode of settlement, al1differences arisingout ofthe interpretation
or application of the Convention shall be referred to the advisory jurisdiction of the Intemational
Court of Justice, thisvery court. Accordingly, any member State could question the propriety,
reasonableness or good faith of the Secretary-General's determinationandlor decision to assert or
waive immunity in accordance with the settlement of dispute provisions of Article VI11of the - 30 -
Convention. As consistently maintained by the United Nations,the Secretary-General'sauthority
is notabsolute but is subject to Article VI11of the Convention and can therefore be reviewed by
the lntemational Court of Justice. Thus if a member State disagrees with the Secretary-General's
decision not to waive immunity andtherefore does not wish to give effect to the immunity in its
national courts, that member State has an opportunityand maybe even an international obligation
to seek recourse through the settlement of dispute provisions providedfor in Article VI11of the
Convention.
59. In Part II (C) (2) of its written comments,the Govemmentofthe Republic of Costa Rica
argues thatwhile the Secretary-General's determinationsas to whether or not immunityexists may
iril
be reviewed by the Court, the Secretary-General'sdecision to waive or not to waive immunity
cannot be so reviewed. The United Nations submit that, in accordance with Section 30 of the
Convention, al1differences arising out of the interpretationor application of the Convention may
be referred to the advisory jurisdiction of the Court, including differences over the
Secretary-General'sright and duty to waive immunity.
60. In paragraph 4 of its written comments, theGovemmentof the United Statesof America
indicates "a well developed practice under which thejudiciary plays a significant role in giving
effect to immunities". The United Nations position does not deny national courts a role in giving
effect to the privileges and immunitiesof the Organization, itsofficiais and experts on missions. w
The United Nations in fact expects national courts togive effectto such privileges and immunities
if and when the competent national authorities of member States party to the Convention on the
Privileges and Immunities of the United Nations have advised their courts of the fact of the
Secretary-General'sassertion thereof in a particular case.
61. Paragraphs 5 and 7 of its written comments - in those paragraphs - the Govemment
of the United States also contends that
"General Convention clearly contemplates that a legitimate difference of opinion
between the Secretary-General anda member State could arise, and henceprovides in
Article VIII, Section 30, for reference ofsuch questions to this Court". - 31 -
The latter statement echoes the United Nations position; in paragraph 53of its written statement,
the United Nations stated as follows:
"The Secretary-General acknowledges that cases of conflict may arise as to
whether an actwas 'official'or whetheran officialor expert had exceeded his mandate,
but the Convention expressly provides for appropriate modes of settlement of private
law disputes if the United Nations is a party to such a dispute, or if immunity has not
been waived by the Secretary-General, under Article VIII, Section 29; and for the
referral of differencesbetween the Organization and its Member Statesto the advisory
jurisdiction of the Court pursuant to Section 30 . . ."
62. The UnitedNationstherefore fullyconcurs withthis interpretationof the Convention and
has so indicated in Parts IV and VI of its written statement and in Parts 1 and II of its written
comments. The United Nations has stipulated that the Secretary-General'sauthority is subject to
Article VIII. The United Nations maintains, however, that the Secretary-General's authority is
subject only to Article VIII. It is not subject to adjudication in national courts.
VI. RESPONSIBILITYFOR BREACH OF OBLIGATIONS
63. Mr. President, as 1 indicated at the outset and a few moments ago, the United Nations
should like to address in some detail the question of the responsibility that breaches of obligations
under international law entails. With your permission, Mr. Zacklin will now address this issue
before 1finally sum up and present our conclusions.
The PRESIDENT: Thank you Mr. Corell. 1 cal1upon Mr. Zacklin.
Mr. ZACKLIN: Mr. President, Members of the Court, it is an honour for me to have the
opportunity to address the Court, as Mr. Corell has indicated, on the question of the responsibility
for breach of obligations as it arises in this request for an advisory opinion.
64. In its written and oral submissions, the United Nations has indicated that it is seeking
reparation for the darnages sustained by the Govemment of Malaysia's failure to respect the
obligations it undertook by acceding to the Convention. The Govemmentaccepts that the question
of its liability is dependent upon the advisory opinion of the Court - 1 refer to its written - 32 -
comments, in paragraph 9.10 - but it argues that issues relating to responsibility should be
resolved separately fortwo reasons:
A. First, even if the Court upholds the assertion of immunity by the Secretary-General, it is
for the Govemment to determine how to give effect to that immunity and there are "various stages
that have to be undertaken, if immunity is established, before Malaysia has to assume
responsibility"; and
B. Second,the "injuries" sustained in this case, unlike tReparations case, are not physical
but are costs arisingout of a civil action instituted by an individual and were not caused by actions
of the Govemment of Malaysia and the United Nations claim for reparation is not a result of a *
breach of a treaty provision but is rather the result of a difference of opinion on the interpretation
of a treaty.
1 refer in this context to Malaysia'swritten comments under paragraphs 9.10, 7.13 and7.14,
respectively.
65. If the Court pleases, Mr. President, 1will deal with these points in tum.
A. Malaysia is obligatedto implementthe advisory opinion
66. With respectto the first point, Malaysia argues that if the Court finds that Malaysiawas
in breach of her obligationsunder the Convention, it is for the Govemment to determine how to
rectify that breach and that, somehow, prior to such determination by Malaysia it has no
responsibility for the breach until a later date after undefined further "stages" are passed.
67. It issubmittedthat iftheCourt findsthatMalaysia has breachedher obligations, Malaysia
must immediately take steps to restore the situation to what it would have been had the
Secretary-General's assertion of immunity been given effect in Malaysia. This flows fiom
Section 30 of the Convention, which gives the advisory opinions of this Court a decisive binding
character.B. Claim for reparations
68. Mr. President,1 shouldnow liketo turn to Oursecondpoint: thatMalaysia isresponsible
for any damage sustained by the SpecialRapporteur, or the United Nations, if the Court finds that
Malaysia was in breach of her obligations. Our submission on this aspect of the case is on four
points:
(1) The United Nations has the capacity to claim reparation;
(2) The Court has jurisdiction to advise on Malaysia's responsibilityto make reparation;
(3) Malaysia's responsibilityto make reparations requires it to ensure that the immunity of the
SpecialRapporteur isrespectedandtomakereparationsforthe damageproximatelyflowing
from its breach; and
(4) The lossesfor which reparation is sought by the United Nations are a proximate reasonably
foreseeable result of the breach of obligation.
(1) The United Nations has capacity to claim reparation
69. With respect to the first point, that the United Nations has the capacity to claim
reparation, 1 should like to observe the following. The Court, in its Advisory Opinion of
1 1April 1949in the case con~~erning Reparationfor InjuriesSufJeredin the Serviceof the United
Nations (Advisov Opinion,1.C.J.Reports 1949, at page 174), hereinafter the Reparations case,
unanimously found that in the event of an agent suffering injury in the performanceof his duties
the United Nations has the capacity to bringan internationalclaim against both a member State and
a non-member State with a view to obtaining reparation in respect of direct damage caused to the
United Nations. The Court rioted that this means the "damage caused to the interests of the
Organization itself, to its administrative machine, to itsperty and assets, and to the interests of
which it is the guardian" (p. 180).
70. The Court by a majority of eleven votes to four found that the United Nations had the
capacity to also bring an international claim to seek reparation due in respect of the indirectdamages causedto its agentsor to the personsentitledthrough them. On this point the Court found
that:
"In order that the agent may perform his duties satisfactorily, he must feel that
this protection is assured to him by the Organization and that he may count on it. To
ensure the independenceofthe agent,and, consequently, the independentaction of the
Organization itself, it is essential that in performing his dutieshe neednot have to rely
on any other protection than that of the Organization (save of course for the more
direct and immediateprotection due from the State in whose territory he may be). In
particular, he should not have to rely on the protection of his own State. If he had to
rely on that State, his independence might well be compromised, contrary to the
principle applied by Article 100 of the Charter. And lastly, it is essential
that - whether the agent belongs to a powerful or to a weak State; to one more
affected or less affected by the complications of international life; to one in sympathy
or not in sympathy with the mission of the agent - he should know that in the
performance of his duties he is under the protection of the Organization .. ."
"Upon examination of the character of the functions entrusted to the
Organization and ofthe nature of the missions of its agents, it becomes clear that the
capacity ofthe Organizationto exercisea measureof functional protection of itsagents
arises by necessary intendment out of the Charter." (Ibid., pp. 183-184.)
71. In reaching this conclusion the Court went on to state:
"Theobligations entered into by States to enable the agents of the Organization
to perform their duties are undertaken not in the interest of the agents, but in that of
the Organization. When it claims redress for a breach of these obligations, the
Organization is invoking its own right, the right that the obligations due to it should
be respected. On this ground, it asks for reparation of the injury suffered, for 'it is a
principle of international lawthat the breach of an engagement involves an obligation
to make reparation in adequate form'; as was stated by the Permanent Court in its
Judgement No. 8 of July 26', 1927 (Series A., No. 9 p. 21). In claiming reparation
based onthe injurysuffered by itsagent,the Organization doesnot representthe agent,
but is asserting its own right, the right to secure respect for undertakingsentered into
towards the Organization.
Having regardto the foregoingconsiderations,and tothe undeniable right ofthe
Organization to demand that its Members shall fulfil the obligations entered into by
them in the interest of the good working of the Organization, the Court is of the
opinion that, in the case of a breach of these obligations, the Organization has the
capacity to claim adequate reparation, and that in assessing this reparation it is
authorized to includethe darnagesuffered by the victim or by personsentitled through
him." (Ibid., p. 184.)
72. Mr. President,the Secretary-Generalasks the Court to affirm these principles which are
directlyapplicable inthis case. It isquiteclearthat the Court, intheReparations case, has foreseen
precisely the situation which the Special Rapporteur has encountered in the present case. In - 35 -
performing hismission, it isessentialthat the SpecialRapporteur neednot haveto rely onany other
protection than that of the Organization. He should not have to rely on the protection of his own
State or else his independence might well be compromised. Moreover, Malaysia's obligationsare
undertaken not in the interest of the Special Rapporteur but in that of the United Nations. In
claiming reparation based on in~urysufferedbythe SpecialRapporteur,the Organization isasserting
its own right to secure respect for undertakings, and to demand that its Members shall fulfil the
obligations entered into by them towards the Organization. In the case of a breach of these
undertakings and obligations, the United Nations has the capacity to claim adequate reparation
including the damages suffered by the Special Rapporteur.
73. TheUnited Nations, of course, notes that it is premature to determine the exact quantum
of liability at this stage. Indeed, we have just been informed by the Special Rapporteur that the
courts in Malaysia have fixedthe four cases for trial between 2 and 9 February 1999. Obviously,
this may lead to further expenses being incurred. However, as noted in the Reparations case (at
p. 181),the impossibilityat this stage to finally quantifythe claim doesnot affect the ability of the
Court to advise on the principle of responsibility to make reparation that flows from the fact of
breach.
(2) The Court has jurisdiction to advise on Malaysia's responsibilityto make reparation
74. With respect to the second point, that the Court has jurisdiction, 1 should like to refer
simply to ECOSOC's decision 19981297,adopted on 5 August 1998 (Dossier No. 61). By that
decision, the Council requestedthe Courtto give its advisory opinion, ona priority basis, interalia,
"onthe legal obligations of Malaysia in this case". This question thus confers jurisdiction on the
Court to advise on the legal obligations of Malaysia to make reparations.(3) A breach of a treaty obligation involves a duty to make reparations for damage caused by
the breach
75. Mr. President, on the third point, that a breach of a treaty obligation involves a duty to
make reparations for darnage caused by the breach, 1have the following observations.
76. The principles of international law which govem the duty of a Stateto make reparation
for damage caused by a breach of its obligations were formulated some 70 years ago in the case
concerning Factory at Chorzbw (Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9,
Claim for Indemnity). In that case, Germany claimed reparations for the taking of a factory at
Chorzow by Poland. This taking was found by the Court not to have been in conformity with the
w
ConventionConcemingUpper Silesia concludedatGenevaon 15 May 1922betweenGermany and
Poland (at p. 12). The Court first noted that itsjurisdiction was based solely on Article 23 (1) of
the 1922 Convention which provided that if "differencesof opinion" arose between Germany and
Poland on the interpretation of Articles 6 to 22 of the Convention they were to be submitted to the
Court. The Court then stated:
"It is a principle of internationalw that the breach of an engagement involves
an obligation to make reparation in an adequate form. Reparation therefore is the
indispensablecomplement of a failure to apply a convention andthere is no necessity
for this to be stated in the convention itself. Differences relating to reparationswhich
may be due by reason of failure to apply a convention, are consequently differences
relating to its interpretation." (Ibid., p.)
The Court then concluded as follows:
"An interpretation which would confine the Court simply to recording that the
Convention hadbeen incorrectly applied or that it hadnot been applied, without being
able to lay down the conditions for the re-establishmentof the treaty rights affected
would be contraryto what would,prima facie, be the natural object of the clause; for
a jurisdiction of this kind, instead ofttling a dispute once and for all, would leave
open the possibility of further disputes." (Ibid., p. 25.)
77. The Government of Malaysia argues that the United Nations is not in the situation of a
State espousing the ciaim of one of its nationals and thus the extension of the principle in the
Reparations case requires "due consideration". 1refer to the written comments in paragraph 7.14.
The United Nations submits that there is no reason why these principles of State responsibility - 37 -
should not apply to the bringing of a claim for reparations by the United Nations. Indeed the
Factory ut Chorzow case was specifically cited with approval in the Reparations case.
78. In its written comments, however, Malaysia makes several points which she submits
preclude the doctrine of resporisibilityestablished intheReparations case to make reparationto the
United Nations. These arguments relate to (1)the type of loss; (2) the cause of loss; and (3) the
nature of the breach.
Type of loss
79. Mr. President, with respectto the type of loss,the Governmentof Malaysiainherwritten
comments argues that the Reparations case is not applicable because to
"hold a member State responsible for the liabilities incurred as a result of civil
proceedings institutedin this case by aprivate individual isa rule without proper legal
basis and is a strain on the rule of construction of necessary intendment in the
Reparations case" (para. 7.24).
In this respect, Malaysia seems to suggest that the Court should take a "conservative" viewof the
Secretary-General's authority and thus not assess damages because his decision can involve the
responsibility of a State (paras. 7.25 and 7.26).
80. This argument is without merit. The costs incurred were approximate, and reasonably
foreseeable, consequence of the litigation. The Government made no effort to mitigate such loss,
either through an intervention or through the appearance of their counsel to address the courts on
the immunity of the Special Rapporteur. The Government didnot seek to have its difference with
the UnitedNations on the issueof immunity dealtwithaccordingtoArticle VI11ofthe Convention;
it simply perrnitted the litigation to continue and thereby engaged its responsibility to make
reparations for the costs incurred because of the litigation. Nor is there any reason in logic why
reparations sought by an international intergovernmental organization should be confined to
reparations for injury or death to its agents.Cause of loss
81. Mr. President,with respectto the causeof the loss,Malaysia arguesthat the Court should
not assess reparationuse the financial losswas not causedby a civil suitthat Malaysia herself
initiated butwas caused by a civil suit brought by private parties,over whom the Govemment has
no control (written comments of Malaysia, para. 7.13). The Government also emphasizes that the
Malaysian judiciary is independent and so the Govemment cannot direct the courts to accept the
assertion of immunitywithout investigation (written statement, paras. 7.4, 7.12 and 8.4).
82.1 should first note that the losses arose because the Government did not fulfil its
obligations tosurethat the Secretary-General'sassertion of immunity was properly prese-ted to
theCourt asa statemeofact supportedbythe Govemment. TheGovernment failedto intervene,
or to take further action, once it was advised that its certificate was defective. In addition to
incorrectly quotingSection 22 (b)of the Convention, the Govemment alsofailed tostate as afact
that the Secretary-General had determined thatthe Special Rapporteur was immune from suit. As
a result, the Government breached its obligationto use al1reasonable efforts to ensure respect for
the privileges and immunities of the Organization. The United Nations is not asserting that the
Government can or should interfere with the judiciary; what it does submit is that, under the
Convention, the Govemment of Malaysia has a legal obligation to give effect to the
Secretary-General'sassertion of immunity or to seek to resolve any differences relating thereto in
accordance with Article VI11of the Convention.
Nature of breach
83. Mr. President, with respect to the nature of the breach, Malaysia submits that a breach
of a treaty
"conduct consisting of an action or omission attributable to a State or to an
international organization under international law, that State or organization being a
partyto the treaty in force and the conduct being incompatible with an obligation
govemed in that treaty" (written comments, para. 7.15). -39 -
However, Malaysia argues that her actions do not constitute a breach of the Convention since
Malaysia fulfilled her obligations by enacting legislation to give the Convention force of law in
Malaysia and by issuinga certificate. The Government argues that there is thus only a difference
"in interpretation of the provisions" of the Convention, ratherthan a breach, and this "difference of
opinion" does not engage financial responsibility (written comments, para. 7.21).
84. The United Nations would first of al1note that it has no quarrel with the definition of
breach of obligation, a definition formulated by Rosenne and cited by Malaysia, being applied to
this case. However, theUnited Nationssubmitsthatthe issueof breachofan obligation is precisely
the issue before the Court, which is asked to advise on "the legal obligations of Malaysia in this
case". It is the view of the United Nations, and al1Governments who have submitted statements
except Malaysia, that the assertion of immunity by the Secretary-General was proper; if so,
Malaysia was under a legal obligationto give effect to that immunity. Even Malaysia agrees that
"the actions by the judiciary does not relieve the State from responsibility" (written comments
para. 7.21).
85. Malaysia also argues that the issue of liability should betreated separately from breach
because if "immunity is maintained it is for the Government of Malaysia to determine, within the
framework of the Constitution of Malaysia,the manner in which suchimmunity is to be enforced"
(written statement, para. 9.10). It is submitted that while this statement doubtless reflects the
process that the Government of Malaysia must undertake domestically in order to have the
immunity ofthe SpecialRapporteur respected, it does not provide a reason in international law for
the Court not to address the principle of responsibility to make reparation.
(4) Losses for which reparation must be made
86. Mr. President, as far as the losses for which reparation mustbe made, 1 should like to
emphasizethat the breachof the Conventionby Malaysia was a failureto ensure that the immunity
of the Special Rapporteurwas respected. As noted in paragraph 64 of Ourwritten statement the - 40 -
damage that flows from this breach is evident: costs incurred in the defence of the legal
proceedings inthe Malaysian courts and any coststaxed to the Special Rapporteur by those courts
and for which he is legally responsible in Malaysia.
87. In the case concerning Factoiy at Chorzbw (Merits, Judgment No. 13, 1928,
P.C.I.J., SeriesA, No.17 , p. 47) the Permanent Court stated:
"reparationmust, as far as possible,wipe outal1the consequencesofthe illegalact and
re-establish the situation which would, in al1probability, have existed if that act had
not been committed. Restitution in kind, or, if this is not possible, payment of sum
corresponding to the value which a restitution in kind would bear; the award, if need
be, of damages for loss sustained which would not be covered by restitution in kind
or payment in place of it - such are the principles which should serve to determine
the arnount of compensation due for an act contrary to international law."
88. Malaysia, however, suggests that the "question of costs expenses or damages which are
actually incurred or paid out by the Special Rapporteur, or by the United Nations to him or on his
behalf are to be resolved separately .. .since the alleged breach has arisen over differences
regardinga question of the interpretation of a treaty it should not be maderetroactiveto the present
case"(para. 7.24).
89. The United Nations submits that it is for this Court to ascertain whether the conduct of
Malaysia constituted a breach of its obligationsnderthe Convention; if Malaysia breachedthose
obligationsit mustannul or dismiss thejudgments and al1on-goingproceedings,againstthe Special
*
Rapporteur and make reparations for damages caused by that breachffom thedate of breach,and
notfrom the date of the Court's Advisory Opinion. There is no question of retroactivity;the issue
is Malaysia's responsibility for her actions.
90. Mr. President, this concludes our remarks with respect to responsibility for breach of
obligations. Withyour permission, Mr. Corell will now sum up and presentour conclusions in the
present case.
The PRESIDENT: Thank you Mr. Zacklin. Mr. Corell how long do you anticipate your
summary will be? - 41 -
Mr. CORELL: Mr. President, five minutes. 1will be very brief.
The PRESIDENT: Please proceed.
Mr. CORELL:
VII. CONCLUSIONS
91. Mr. President, theforegoingconsiderationsconfirm theconclusionsreached bythe United
Nations, andthey could be summarized in the following five points:
First, that, subject to Article VIII, Sections 29 and 30 of the Convention, the
Secretary-General hasexclusive authority to determine whether or not words or acts are spoken,
written or done in the course of the performance of a mission for the United Nations and whether
such words or acts fa11within the scope of the mandate entrusted to a United Nations expert on
mission.
Second,that such matters cannot be determined by,or adjudicated in,the national courts of
the member States parties to the Convention. The latteris coupled with the Secretary-General's
right and duty,in accordancewith the terms of Article VI, Section 23, ofthe Convention, to waive
the immunity where, in his opinion, it would impedethe course of justice and it can be waived
without prejudice to the interests of the United Nations.
Third, that when cases of conflict may arise as to whether an act was "official" or whether
an expert had exceeded his or her mandate, the Convention expressly provides for appropriate
modes of settlement of disputes with aggrieved parties, if immunity has not been waived by the
Secretary-General,initsArticle VIII, Section 29, andforthe settlementofdifferenceswith member
States over the interpretation or application of the Convention, in its Section 30. These are the
appropriateprocedures for settlement,notthe adjudicationof the Secretary-General'sdetermination
by national courts.
Fourth, unless it seeks the remedies provided forin Article VIII, Sections 29 and 30, of the
Convention, when the Secretary-General maintains the immunity from legal process of an expert - 42 -
on mission for the United Nations, a Government of a member State party to the Convention has
an obligation, under Section 34 of the Convention to take whatevermeasures are necessary to give
effect to that immunity. If itils or refuses to do so, the Government concerned is in breach of
I
its obligations under the Convention and is ultimately responsible for any costs, expenses or
damages arising out of the proceedings in its national courts.
Fifth, unless the Secretary-General's exclusive authority in this regard is upheld, the
exclusively international character and the functional independence ofcials and experts which
Articles 100 and 105 of the Charter and the Convention aim to protect will be seriously
undemined. Moreover, if national courts of member States parties to the Convention are allowed -
to adjudicate the privileges and immunities of the United Nations and its officiaisand experts on
mission, the meaning of Sections 20, 23 and 30 of the Convention would be seriously called into
question.
92. Mr. President, these general conclusions, if applied to the circumstances of the present
case, would compel the following specific three conclusions.
First, that to the extent the Secretary-General had determined that the words giving rise to
the legal proceedings in Malaysia's nationalcourtswere spoken by Dato' Pararn Cumaraswamy in
his officia1capacity as Special Rapporteur in the course of the performance of his mission for the
United Nations and that he was therefore immune from legal process with respect thereto, the 1
Government of Malaysia had an obligation to give effect to his immunily from legal process or,
alternatively,to invoke the settlement of dispute provisions of Articleof the Convention.
Second, by refusing to adequatelynform its courts of the Secretary-General's determination
of the scope and applicability of the Special Rapporteur'simmunity from legal process and, in the
alternative,toensure that al1judgments and proceedings are stayed pending the resolution of the
difference arisingetween it and the United Nations, the Government of Malaysia failed to respect
its obligation,nder Section 34 of the Convention, to give effect to Article VI, Section 0,
thereof. -43 -
Third, that the Government of Malaysia is ultimately responsible for any costs, expenses or
damages which are actually incurred or paid out by the Special Rapporteur, or by the United
Nations to him or on his behalf.
93.Mr. President, as 1said at the very beginning ofmy intervention, the advisory opinion
of the Court in this matter will have far reaching consequences.
94. Over the past half century, the International Court of Justice has, through its advisory
jurisdiction, played a significant role in the development of the law of international institutions.
Mention may be made inter aljaof the Advisory Opinions regarding Conditions of Admission of
a State to Membership in the United Nations (Article 4 of the Charter); the Cornpetence of the
General Assembly for the Admission of a State to the United Nations; Effects of Awards of
Compensation Made by the United Nations Administrative Tribunal; Certain Expenses of the
United Nations (Article 17,paragraph 2, of the Charter); and last but not least Reparations for
Injuries Suffered in the Service of the United Nations to which ample reference has been made in
our statements today.
95. The question before the Court relates to a fundamental principle of the law of
international immunities; it is not a question solely of concem to one Special Rapporteur or even
to one class of Special Rapporteurs. It is a question which relates to the independent functioning
of any agentof the Organizationwhether an officia1or an expert on mission. Furthermore, because
the twin pillars of the law of international immunities - the General Convention of 1946 and the
Specialized Agencies Convention of 1947 - are virtually identical in content, the practical
significance of this opinion will be very wide indeed.
96. Mr. President, while the Secretary-General would have wished to resolve this issue
without resort to the advisoryjurisdiction of the Court,despite his best effortshe was unable to do
so. In requesting this advisoyf opinion, the Economic and Social Council has placed into your
hands the responsibility of deciding this matter with decisive effect. -44 -
97. In Ourwritten submissions and inOuroral presentationtoday we haveprovided the Court
with Our arguments based on the law and practice of the Organization - arguments which we
believe will enable the Court to reaffinn the cornpetence of the Secretary-General of the United
7
Nations as the guardian of the privileges and immunities and the interestsof the Organization.
98. 1dohope, Mr. President,thattheseremarkswill assist theCourt inrendering theadvisory
opinion requested bythe Economic and Social Council. Thank you.
Thank you so much Mr. Corell and Mr. Zacklin. The Court will now
The PRESIDENT:
adjourn for 15minutes and then resume.
The Court adjournedfrom 11.55 a.m. to 12.10p.m.
The PRESIDENT: Please be seated. May 1cal1on the distinguishedAmbassador of Costa
Rica to the Netherlands.
Mr. CONEJO:
Introduction
1. Mr. President, Mr. Vice-President, distinguished Members of the Court. As 1 am the
rll
Ambassador of the Republic of Costa Rica to the Kingdom of the Netherlands and the
representative of the Republic of Costa Rica in this case, 1 am very honoured to address this
distinguished Court today.
2. The Republic of Costa Rica has long recognized thefundamental importance that the
respect for human rights has for democracy, peaceful development and stability. The promotion
of human rights therefore constitutes a long-standingpriority of the nationalpolicy of Costa Rica,
a peace-loving country with a long history of democracy now celebrating thefiftieth anniversary
ofthe abolition of its armedforces as a permanent institution. This is evidencednot only by Costa
Rica'sactive role in the United Nations, of which it is a founding Member andwhere itcurrently - 45 -
occupies a seat on the Security Council, but also by the fact that distinguished nationals of Costa
Rica have devoted years of service, especially to the Commission on Human Rights, including
service as chairman and special rapporteur. In this regard 1refer in particular to the service as
Special Rapporteur of the Sub-Commission on Prevention of Discriminationand Protection of
Minoritiesof Mrs. Elizabeth OdioBenito, whohasjust resumedherdutiesas SecondVice-President
of the Republic, following completion last month of her service as judge of the International
Criminal Tribunal for the former Yugoslavia in The Hague.
3. Thus it is on the basis ofboth its ownexperienceand its active participation in the support
of international human rights that the Republic of Costa Rica attaches great importance to the
question submitted to the Court for an advisory opinion. The response of this Court is crucial to
the functioning of the United Nations global systemof implementing andmonitoring human rights.
The SpecialRapporteurs of the United Nations Commission on HumanRights constitute oneof the
most important means availabletotheworld communityto ensurethat States areaccountable inthe
area of human rights. As has been stated repeatedly during the written proceedings, and as the
UnitedNations High Commissionerfor HumanRightsherselfhas declared,andreiteratingthe quote
of Mr. Corell this morning, "Threatening the immuniiy of one [special rapporteur] constitutes an
attack on the entire system andinstitution of the UnitedNations [humanrights] special procedures
and mechanisms."
4. The Republic of Costa Rica notes thatjust a few days hence the fiftiethanniversary of the
proclamation of the UniversalIleclaration ofHuman Rights by the GeneralAssembly of the United
Nations on 10 December 1948will be celebrated. Especially at this moment, therefore, Costa Rica
feels itself compelled to urge this Court to act unarnbiguously and with resolveto safeguard one
of the foundations of the eneouraging progress achieved in these last 50 years in the global
implementation of human rights.
5. Thank you, Mr. President, Mr. Vice-President and other distinguished Members of the
Court, for your kind attention,and 1now introduce Mr. Charles N. Brower of White & Case LLP - 46 -
in Washington, D.C., who will address with a specificity the important legal questions before the
Court on behalf of the Govemment of Costa Rica.
The PRESIDENT: Thank you, Mr. Ambassador. 1cal1now on Mr. Brower.
Mr. BROWER:
6. Mr. President, Mr. Vice-President and distinguished Members of the Court. It is a great
honour and a privilege for me once again to appear before you. 1take special pleasure in doing
so on behalf of the Republic of Costa Rica, which ismaking a signal contribution here as the sole
participant inese proceedings(otherthan the actualparties tothedifferencebeing addressed)from -
outside Europe and North America.
7. Rather than reiterating arguments alreadyset forth in Costa Rica'swritten submissionsto
the Court, which1 reaffirm by reference, 1will concentrate here on those points that Costa Rica
perceivesstill require attention at the conclusion of the written phase of the proceedings.
8.1 will address first the issue of why the Court may and should opine on whether the
Special Rapporteur is indeed immune from legal process of every kind.
The request for an advisory opinion specifically asks the Court to decide whether the
Special Rapporteur is immune from legal processof every kind
9. At the outset, it is appropriate, once again, to recall the objects of ECOSOC'srequest for
an advisory opinion. They are, first, the "legal question of the applicability of the [General
Convention] inthecase of. . [the] Special Rapporteu...takingintoaccountthecircumstances
set out in paragraphs 1 to 15 of the note by the Secretary-General", and, second, "the legal
obligations of Malaysia in this case". A perusal of the written statementsand comments submitted
to the Court reveals thate of the participants in these proceedings has opposed the notion that
the issue of whether the SpecialRapporteur is immunefrom legal processof every kind in this case
is within the scope of the Court'sjurisdiction in this proceeding. This is so, 1respectfully submit,
notwithstanding the puzzling statement by Malaysia, at pagef its written comments, of "the - 47 -
Questions that have been referred to the Court" which statement omits any referenceto this issue.
Quite obviously that statement is drawn, be it noted, not from the questions in fact presented to the
Court by ECOSOC in its Decision 19981297of 5 August 1998that gave rise to this proceeding, but
instead fromthe questions as they were proposed in paragraph 22 of the Secretary-General'snote.
While ECOSOC1sdecision inc.orporatedby reference "the circumstances set out in paragraphs 1
to 15" of that note, it did not adopt the statement of issues set forth in paragraph 22 thereof.
10. Malaysiasuggeststhat the determination of immunityrequiresconsideration of facts and,
therefore, that the Court must: refrain from addressing the Special Rapporteur's entitlement to
immunity,which constitutesthe: chiefquestion raised by ECOSOC1srequestfor anadvisoryopinion.
In essence, Malaysia suggests that it would not be proper for the Court to consider facts in the
context of an advisoryopinion. Malaysia, however, confuses adjudication of contested facts on the
one hand with consideration of'undisputed facts on the other. A determination of immunity may
sometimes require adjudication of contestedfacts, and Costa Rica recognizes that the adjudication
of contested facts may be inappropriate in the context of an advisory opinion. This case does not,
however, require the Court to resolve disputed facts. To the contrary, none of the Partiesto these
proceedingshas identifiedanydisputed material fact,and nonewould appearto exist. Instead,these
proceedingsrequire the Court to perform the conventional legaltask of deciding how the language
of the General Convention applies to the undisputed circumstances of the Special Rapporteur.
11. Such consideration of undisputed facts not only is proper, but in fact is essential to the
task at hand. As Judge Oda stated in paragraph 22 of his separateopinion in Mazilu, "it is not. . .
possible to determine the applicability of [Article VI, Section 22 of the General Convention] to a
concretecase without adequatereference to the way in which itrnayapply". Moreover,ECOSOC1s
request for an advisory opiriion specifically asks the Court to "tak[e] into account the
circumstances" of this case, and thus makes it clear that that request was drafted with Mazilu in
mind and hence with the intention that the Court consider the underlying factual circumstances in
opining on whether the Special Rapporteur is immune from legal process of every kind. In short,the Court'sjurisdiction to rule on the Special Rapporteur'simmunity could not have been more
clearly invoked. .
12.Mr. President, Mr. Vice-President, distinguishedMembers of the Court. 1will now tum
v
to the reasons why the Court should find that the SpecialRapporteur is indeed immunefrom legal
process of every kind.
The Special Rapporteur is immunefrom legal processof every kind
13. In its written submissions to this Court, Costa Rica already has pointed to the
long-standing andacceptedpractice of SpecialRapporteurs,who regularlydisseminate information W
to the press and public as one of the means of canying out their mandate to promote increased
compiiance with human rights standards. Costa Rica alsohas established that the Commission on
HumanRights'actual practiceas it relatesto Mr. Cumaraswarny'sspecificmissionmakes clearthat
in his particular case statements to the media repeatedly have been approved as a practice
appropriate to such mandate. Doubtless it is in reliance onthis record of approvals, both general,
or generic, and specific, that the United Nations has confirmed, at page5, paragraph 14, of its
written comments, that the SpecialRapporteur indeed actedwithin the confinesof his mandate by
stating that "the United Nations hadformally ratifzedthe words of its expert on mission". Any
doubtpossibly remainingas regardsthe Organization'sapproval of the specificstatements madeby d
the Special Rapporteurto InternationalCommercialLitigationshould be dispelled by such formal
expressionof ratification. TheCourt will, 1think, recognizethat suchforma1ratificationconstitutes
a weightier and more definite sign of approval than the release of statements by the Special
Rapporteur on UnitedNations stationery, which Malaysiaitself describes as significantevidenceof
official approval.
14. The fact is that al1participants in this proceeding, save Malaysia, concur in concluding
that the Special Rapporteur is immune. For its part, Malaysia does not conclude that he is not
immune; rather it pleads the authoriîy of itsjudicial system to determine the issue at length. -49 -
15.Particularlygiventhat it does not expressly acknowledge immunityasan issuebefore the
Court, and that it disclaims an!?position on the issue, it is somewhat surprisingto see Malaysia's
statementat page 14,paragraph4.13, of itswritten commentsthat "if. . the interpretationrendered
by . . the Republicof Costa Rica . ..is accepted, it would appear to accord the expert immunity
in respect of anything andeverything uttered or stated anywhere, everywhere and anytime which
in other words means limitless immunity". Inany event, such statement is misguidedas it entirely
ignores the legal significance of the aforementioned approvals and ratification. Just as Malaysia
itself has stated,"[elxperts are not staff', and they are, for this reason, quite free to utilize public
appearances and media contacts in the performance of their mandates. This is evidenced in the
consistent practice of Special Rapporteurs, as noted in detail in Costa Rica's written submissions
to this Court, to issue their own statements to the media which only subsequentlyare reissued or
reported on by press releases of the United Nations itself. Malaysia'sconclusion that "as long as
in form there is publicity,the substance of contents are to be disregarded even if the publicity is
done indiscriminately" accordingly is without any basis.
16. Similarly without foundation is Malaysia's conclusionat page 26, paragraph 5.18, of its
comments, that the view expressed byCosta Rica "puts any SpecialRapporteur in an unassailable
position". To the contrary, a Special Rapporteur remains "assailable" outside of the scope of his
immunity, which is limited by the scope of his mandate as defined by the United Nations: the
Secretary-Generaldoes not assert immunity for statements and actions not relevant to an expert's
mission; the Secretary-Generalldoes in fact waive the immunities of experts when a waiver may
be accomplished in accordarice with Article VI, Section 23, of the General Convention;
Article VIII, Section30,ofthe General Convention preservesthe sovereignprerogativeof Malaysia
tochallengethe assertedimmunityofthe SpecialRapporteur inproceedingsproperlybrought before
this Court; and, notwithstandingthe Special Rapporteur's immunity,the United Nations is willing
toaffordthe plaintiffs inthe underlying litigationaremedy as requiredby Section 29ofthe General
Convention. - 50 -
17. Approaching the point differently, one may grant, as Malaysia suggests, at page 29,
paragraph 5.24, of its written comments, that in a particular case "such modes of publicising
materials to be compiled for reports may not necessarily be inthe interests of the UnitedNations",
T
but any determination of such an issue isfor the United Nationsto make whenappointinga Special
Rapporteur, continuing his mandate and noting his reports with approval (or for the
Secretary-Generalto make when exercising"the rightand duty" under Section 23ofthe Convention
to waive immunity). Thus Malaysia'sfurther reference, at page 29, paragraph 5.24,of its written
comments, to United Nations human rights mechanisms as potentially being "a cloak and dagger
situation toadvance persona1interests"similarly ignores the legalrelevance of the exercise by the I
United Nations, in this case by the Commission on Human Rights, of its supewisory and oversight
functions as regards specialrapporteurs. Moreover,given the SpecialRapporteur'smandate in this
case to enquire into the independence of judges and lawyers, "words which give States 'bad
publicity' or put persons to mistrust a judicial system", and which Malaysia, at page 29,
paragraph 5.25, of its comments, implicitly doubts "were uttered . ..for the performance of his
mission", are patently within the scope of the Special Rapporteur'smission as it has been precisely
his duty to uncover instances in which the independence of thejudiciary appears to be prejudiced.
18. For these reasons, and for the reasons stated in CostaRica's written submissions to this
*
Court but not reiterated here, the Court should find that the Special Rapporteur is indeedimmune
from legal process of every kind.
19. Mr. President, Mr. Vice-President and distinguishedMembers of the Court. 1now turn
to the question of Malaysia's obligations in this case, in particular the reasons why Article VI,
Section 22, of the General Convention requires States parties to accord "immunity from legal
process of everykind" where such immunityexists. Again, 1willrefrain to the extent possible from
reiterating the arguments already advanced by Costa Rica in the written proceedings.Article VI, Section 22, of the General Convention requires States parties toaccord "immunity
from legal process of every kind" where it exists
20. When we come to the issue of the implementationofthe SpecialRapporteur'simmunity,
the opinions of the participants in this proceeding divide in so far as the precise means are
concemed, yet not, SaveMalaysia, as regards the result. Turning it around, and putting it more
precisely, while al1 those who have addressed the issue of Malaysia's obligations, other than
Malaysia itself, unite in concluding that Malaysia has failed to comply with the General
Convention's requirementthat the Special Rapporteur be accorded "immunity from legal process
of every kind", they differ as to the technique required for compliance: Costa Rica, joined by
Germany and Sweden, supportsthe Secretary-General'sview that his certification must be given
conclusiveeffect in national courts, while the UnitedKingdom and the United States,for example,
view themselves as being in compliance with the Convention when their courts either accord the
Secretary-General's determination great weight and deference, or follow it absent unspecified
compelling or powerful circumstances. The fact that in 50 years the dispute resolution clause of
Section 30 of the General Convention has been invoked only twice indicatesthe general absence
of any "difference" arising between the rather frequent determinations of immunity by the
Secretary-Generalandthe views of national courts. It also demonstratesbroad acceptance by States
of the Secretary-General'sconsistent practice as documented in the dossier.
21. Thus, while adhering to its view that giving the Secretary-General's certification of
immunityconclusive effectinnationalcourts absolutely,andmostsurely,results incompliancewith
Section 22 of the General Convention, Costa Rica suggests that, conceptually speaking, the
obligation of the General Corivention, in the end, is an obligation to achieve an objective, an
obligation of result, and not necessarily one to employ a specific means. That is to Say,a State
partyto that Convention must in factact so as to ensure "the immuniq from legal process of every
kind". It thus must insulate a Special Rapporteur as to whom immunity is invoked by the
Secretary-General from any "burden of litigation", including any "trial" regarding his entitlement - 52 -
to immunity. So long as that is achieved, by whatever means, the State party has complied with
the General Convention. 4
22. As soon, however, as it appears that a State party cannot assure this result for an expert
certified by the Secretary-General to be immune, that State party is under an obligation to desist
and to seek resort to Section 30 of the General Convention to resolvethe "difference". It may not
itselfproceed to adjudicate immunity, unless freed to do soas a result of a Section 30 proceeding,
because,as the United Nations, at page 9, paragraph 25, of its written comments has stated, "[tlhe
adjudication of an immunity from legal process would be tantamount to a denial of that very
immunity". W
23. This view of the General Convention would provide a workable balance between the
legitimate interest of the United Nations to protect its experts to the extent necessary in the
performance of their mandates and the sovereignty of Statesparties to the General Convention. It
should be obvious that, in order for this balanced mechanism to function, as pointed out by the
UnitedNations, atpage 7,paragraph 18,of itswritten comments, the Stateparty'sobligationsmust
include
"[alt the very least . . the obligation of the Govemment to infom its competent
judicial authoritiesthatthe Secretary-GeneraloftheUnited Nations hasdetennined that
the words or acts giving rise to the proceedings in its national courts were spoken,
written or done in the course of the performance of a mission for the United Nations
andthat theUnitedNationsthereforemaintains the immunity from legal process ofthe
expert on mission concerned with respect to those words or acts".
The statement at page 5, paragraph 3.3, of Malaysia's written commentsthat the Govemment of
Malaysia "could [not] intercede on behalf of the Special Rapporteur as he is not the agent of the
Govemment of Malaysia" thus ignores Malaysia's international legal obligation to insulate the
SpecialRapporteurfrom a "trial" or any other "burden of litigation". Malaysia'sfurther argument,
*
at pages 52 to 54of its written comments, implicitly likening the Secretary-General'scertification
of immunity to a self-judging reservation to the acceptance of the compulsoryjurisdiction of this
Court,and concludingthat it is therefore invalid,equallymisses the point. As demonstrated by the - 53 -
existence of a dispute settlement mechanism in Section 30 ofthe General Convention, Malaysia is
inno way obligatedto accept as finally bindingthe Secretary-General'sdetermination of immunity,
which therefore does not const:itutea unilateral determination of Malaysia'sobligations. Indeed,
Section 30 ofthe General Convention presupposesthe potential for a "difference"to arise, inwhich
case referral to this Court may be sought.
24. In this context, the UnitedNations unequivocal statement at page 6,paragraph 15,ofits
written comments that in its view "Section 29 (b) of the General Convention could be made
applicable, mutatis mutandis, .to experts on mission who enjoy immunity" deserves particular
mention because it emphasizes that Article VI11of the General Convention provides a complete
dispute settlementsystem and tliusremovesany doubtthat initially respecting immunity innational
courts, where it has been certified bythe Secretary-General,would not impedethe course ofjustice.
25. Here1shouldexpress on behalfofCostaRica itsrecognition andappreciation of the view
expressed by the United States:,at page 5 of its written comments, that once this Court finds that
Mr. Cumaraswamy is immune, it need not, in orderto answer fully ECOSOC'srequest, addressthe
issue of exactly how Malaysia should have handledthe case procedurally. 1would like to stress
that this takes, as Costa Rica sees it, an artificially narrow view of that request. While the
"difference" between the United Nations and Malaysia,of course, technically is resolvable without
the Court addressing that issut:, ECOSOC'srequest clearly invites the Court to proceed further.
Costa Rica strongly urgesthis Court to rule on the issue 1have just discussed, as a Iegitimate act
ofjudicial statesmanshipin support of international human rights, and to better ensure that the next
50 years also will see no more than two cases, hopefully none, here involving Section 22 of the
General Convention.Malaysia is obligated to compensate for al1costs, expenses, losses, damages or injury caused
to the Special Rapporteur by its non-compliance with the General Convention
i
26. Finally, Malaysia mustmake good al1costs, expenses, losses,damagesor injuryresulting
to the Special Rapporteur from its failure tomeet its obligationto respect his immunity as required
by the General Convention.
27. Thefact that the Reparationscase involved personal injuries,ratherthan strictly financial
ones, is a factual distinction without legal relevance. In addition, there is no reason that the Court's
binding advisory opinion in this case should have any less effect as regards the consequences of
Malaysia'sbreach than it does as regards the existence thereof. That is to Say,there is nothing
unacceptably retroactive about either aspect of this Court's decision in this case.
Final Submissions
28. Mr. President, Mr. Vice-President and distinguished Members of the Court. For the
reasons given in its written submissions as well as for the reasons just stated in this sitting,
Costa Rica submits that the Court should find that Article VI, Section 22, applies in the case of
Mr. Cumaraswamy as Special Rapporteur of the Commission on Human Rights to the words and
acts attributed to him in the article entitled "Malaysian Justice on Trial" that appeared in the
November 1995issue of InternationalCommercialLitigation.TheCourtshould decidefurtherthat
.J
as a result the Special Rapporteur is immune from legal process of every kind in regard to those
words and acts, and hence that Malaysia's legal obligation in this case is to accord him immunity
from legal process of every kind. In addition, the Court should decide that Malaysia must
compensatefor al1costs, expenses, losses, damages or injury, includingal1court-orderedcosts and
legal fees, incurred by Mr. Cumaraswamy as a result of having to defend himself in Malaysian
courts. Finally, and for the future, the Court should decide that Malaysia must conform its
legislation to the General Convention in so far as it presently deviates from it.
29. Mr. President, Mr. Vice-President and distinguished Members of the Court. 1 thank you
for your attention and for your consideration of these arguments. - 55 -
The PRESIDENT: Thank you Mr. Brower. The Court will now adjourn until tomorrow
morning. Thank you.
TheCourt rose at 12.50p.m.
Public sitting held on Monday 7 December 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding