COUR INTERNATIONALE DE JUSTICE INTERNATIONAL COURT OF JUSTICE
WRITTEN STATEMENT
OF THE
GOVERNMENT OF THE REPUBLIC OF COSTA RICA
I. Introduction
On August 5, 1998, the United Nations Economic and Social Council ("ECOSOC") adopted,
by consensus, a decision requesting,
on a priority basis, pursuant to Article 96, paragraph 2, of the Charter of the United Nations
["Charter"] and in accordance with General Assembly resolution 89 (I), an advisory opinion
from the International Court of Justice ["Court"] on the legal question of the applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations ["General Convention"] in the case of Dato' Param Cumaraswamy as Special
Rapporteur of the Commission on Human Rights on the independence of judges and lawyers,
taking into account the circumstances set out in paragraphs 1 to 15 of the note by the United
1
Nations Secretary-General, and on the legal obligations of Malaysia in this case.
Upon receipt of the request, the International Court of Justice, by Order of August 10, 1998,
decided "that the United Nations and the States which are parties to the [General] Convention
[were] likely to be able to furnish information on the question submitted to the Court," and
fixed October 7, 1998 as the time limit within which written statements on that question may
be submitted to the Court in accordance with Article 66, paragraph 2, of its Statute. The
Republic of Costa Rica submits the present statement pursuant to that Order for the reasons
set forth below.
The question submitted to the Court for an advisory opinion is not of a merely technical
nature, nor is it important solely to Mr. Cumaraswamy. To the contrary, it is decisive for the
effective functioning of the United Nations human rights mechanisms and thus is of crucial
importance to the entire United Nations system and to all Member States. The Court's
advisory opinion in this case will have a definitive impact on the future of human rights
monitoring and implementation throughout the world.
2
As a party to the General Convention as well as to the Statute of the Court, the Republic of
Costa Rica has a genuine legal interest in the correct interpretation and application of that
Convention by the Court. Moreover, the firm and prominent commitment of the Republic of
Costa Rica to the cause of human rights internationally, particularly including the
establishment of effective mechanisms to protect and implement such rights, has given it
unique experience which moves it to express itself in this all-important case. The promotion
of human rights constitutes an historical and continuing priority of Costa Rican national
policy. As one of the founders of the United Nations, Costa Rica participated enthusiastically
in the drafting of the Universal Declaration of Human Rights. The capital of Costa Rica, San
José, long has been the seat of the Inter-American Court of Human Rights, the Inter-American
Institute for Human Rights, the University for Peace, the United Nations Latin American
Institute for the Prevention of Crime and the Treatment of Offenders ("ILANUD"), and a
number of well-known non-governmental human rights organizations. Indeed, the American
Convention on Human Rights, the human rights convention of the Western Hemisphere, is
commonly known as the Pact of San José. 3It is of particular note that Costa Rica's formerpresident, Dr. Oscar Arias Sánchez, was awarded the Nobel Peace Prize in 1987 for his
pivotal role in bringing peace to Central America.
More recently, the city of San José in January 1993 hosted a key regional meeting preparatory
to the World Conference on Human Rights held in Vienna later that year. That preparatory
meeting resulted in the adoption of the San José Declaration in which the Latin American and
Caribbean States reaffirmed their commitment to promoting and guaranteeing human rights,
as well as their support for United Nations human rights institutions and mechanisms. 4
Moreover, Costa Rica takes special pride in having proposed, as early as 1965, the
establishment of the office of the United Nations High Commissioner for Human Rights, an
idea that, many years later, in 1993, received the unanimous support of the World Conference
on
5 6
Human Rights, and was promptly implemented by the General Assembly. Finally, Costa
Rica's interest in the present case derives from its long-standing membership in the
Commission on Human Rights and from the fact that a number of distinguished nationals of
Costa Rica have served the Commission as Chairman and as special rapporteurs. 7
II. Factual Background
In its decision requesting the Court's advisory opinion, ECOSOC specifically asked the Court
to "[take] into accou8t the circumstances set out in paragraphs 1-15 of the Note by the
Secretary-General." The Republic of Costa Rica, therefore, consistent with its support of the
adoption by consensus of ECOSOC's decision, refers to paragraphs 1-15 of the Note by the
Secretary-General for the relevant facts of this case. In addition, the Republic of Costa Rica
wishes to bring to the Court's attention the text of the article containing statements attributed
to Mr. Cumaraswamy which gave rise to the civil suits in the Malaysian courts presenting the
issue of immunity on which the Court has been requested to opine. 10
III. The Court's Jurisdiction
Pursuant to Article 96, paragraph 2, of the Charter,
[o]ther organs of the United Nations [than the General Assembly and the Security Council]. . .
, which may at any time be so authorized by the General Assembly, may . . . request advisory
opinions of the Court on legal questions arising within the scope of their activities.
By Resolution 89 (I) of December 11, 1946, the General Assembly authorized ECOSOC "to
request advisory opinions of the International Court of Justice on legal questions arising
within the scope of the activities of the Council." The question presented in the instant case is
patently a legal one as it involves the interpretation of an international convention in order to
11
determine its applicability and the legal obligations of a State Party to that convention.
Further, it arises within the scope of the activities of ECOSOC, of which the Commission on
Human Rights ("Commission") is a functional component entrusted with preparing
recommendations and reports on matters concerning human rights. 12 In fulfilling its task, the
Commission regularly appoints special rapporteurs such as Mr. Cumaraswamy to undertake 13
necessary studies on specific subjects and to report their findings to the Commission. Thus,
legal questions relating to the privileges and immunities to which a special rapporteur is
entitled while engaged in these activities arise within the scope of the activities of the
Commission and its parent body, ECOSOC.Accordingly, the Court has jurisdiction under Article 96, paragraph 2, of the Charter to render
the requested advisory opinion.
Although the Court under its Statute has discretion not to entertain a request for an advisory
opinion, it consistently has given its opinion in response to such requests unless there are
"compelling reasons" for it not to do so. ECOSOC's request here for an advisory opinion
presents no such compelling reason. To the contrary, it presents compelling reasons for the
Court to act affirmatively on ECOSOC's request and to do so on a priority basis. First, the
question presented is decisive for the effective functioning of United Nations human rights
mechanisms. Second, the requested advisory opinion is necessary to give effect to Article
VIII, Section 30, the dispute settlement provision of the General Convention, according to
which:
All differences arising out of the interpretation or application of the present convention shall
be referred to the International Court of Justice, unless in any case it is agreed by the parties to
have recourse to another mode of settlement. If a difference arises between the United Nations
on the one hand and a Member on the other hand, a request shall be made for an advisory
opinion on any legal question involved in accordance with Article 96 of the Charter and
Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as
decisive by the parties.
(Emphasis added.) Failure of the Court to give an advisory opinion as requested would
deprive Section 30 of all utility by upsetting its carefully crafted balancing of the necessary
privileges and immunities of the United Nations with Member States' sovereignty.
IV. The Applicability Of Article VI, Section 22, Of The General Convention
A. The General Convention Applies To Mr. Cumaraswamy As Special Rapporteur Pursuant
To This Court's Advisory Opinion In Mazilu
The Court, in its advisory opinion in the so-called M16ilu case, already has taken the view that
Article VI, Section 22, of the General Convention applies to special rapporteurs of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities of ECOSOC's
Commission on Human Rights. 17 The Court relied on the "evident" purpose of Section 22 "to
enable the United Nations to entrust missions to persons who do not have the status of an
official of the Organization, and to guarantee them `such priv18eges and immunities as are
necessary for the independent exercise of their functions'." The Court's determination
concerning special rapporteurs of the Sub-Commission of the Commission on Human Rights
applies a fortiori to special rapporteurs of the Commission on Human Rights as the Sub-
Commission's parent body.
Moreover, the Court determined in Mazilu that the immunities contained in Article VI of the
General Convention apply as regards the State of which the expert is a national, particularly
considering that Article IV expressly excludes any immunity for a representative of a Member
State in th19territory of his State of nationality, whereas Article VI contains no parallel
provision. The Court also was persuaded that since certain States had felt it necessary to
make reservations to certain provisions of Article VI regarding their own nationals, absent
such a reservation, the privileges and immunities conferred by Article VI of the General
20
Convention may be invoked by an expert on mission against the State of his nationality.
Malaysia acceded to the General Convention in 1957 without entering any reservation to itwhatsoever, and hence Mr. Cumaraswamy's Malaysian nationality does not affect his
immunity from legal process in the Malaysian courts.
B. The "Words" And "Acts" Of Mr. Cumaraswamy As To Which Article VI, Section 22, Of
The General Convention Is Invoked Were "Spoken" And "Done" By Him "In The Course Of
The Performance Of [His] Mission"
Mr. Cumaraswamy was appointed as the Commission's Special Rapporteur on the
Independence of Judges and Lawyers in 1994. His mandate was extended for a further
period of three years in 1997. 23That mandate (framed prior to his appointment) is:
(a) To inquire into any substantial allegations transmitted to him or her and report his or her
conclusions thereon;
(b) To identify and record not only attacks on the independence of the judiciary, lawyers and
court officials but also progress achieved in protecting and enhancing their independence, and
make concrete recommendations including the provision of advisory services or technical
assistance when they are requested by the State concerned;
(c) To study, for the purpose of making proposals, important and topical questions of
principle with a view to protecting and enhancing the independence of the judiciary and
lawyers. 24
For the reasons set forth below, the granting of interviews to the media on the subject of his
mandate, such as occurred in this case, was "in the course of the performance of [Mr.
Cumaraswamy's] mission" as Special Rapporteur, and hence was covered by Article VI,
Section 22, of the General Convention.
1. It Is A Long-Standing And Accepted Practice Of Special Rapporteurs To Disseminate
Information As One Of The Means Of Carrying Out Their Mandate To Promote Increased
Compliance With Human Rights Standards
25
Special rapporteurs regularly publish reports on their findings and issue public statements.
No special rapporteur (including Mr. Cumaraswamy) has ever been regarded by the United
Nations as thereby acting outside his or her mandate, and no special rapporteur other than Mr.
Cumaraswamy ever has been subjected to municipal judicial process for thus diligently
26
pursuing it. Pursuant to Article 31(3)(b) of the 1969 Vienna Conventi27 on the Law of
Treaties, which codifies customary international law on the subject, this well-established
"subsequent practice" in the application of the Charter and the General Convention is relevant
for the interpretation of Section 22. A practice thus deeply embedded in the performance of
their mission by special rapporteurs of the Commission, and which previously has
encountered no objection, cannot now be found to lie outside the proper bounds of "the course
of the performance of their mission."
2. The Actual Practice As Relates To Mr. Cumaraswamy's Specific Mission Makes
Clear That In His Particular Case Statements To The Media Have Been Repeatedly
Approved As A Practice Appropriate To Such Mandate
In keeping with the United Nations practice just discussed, Mr. Cumaraswamy consistently
28
has interpreted his mandate as encompassing promotional activities, including acceptance ofinvitations to speak publicly about his work at numerous fora around the world. The 29
Commission in turn consistently has taken note, without any objection or complaint, of Mr.
Cumaraswamy's annual reports on, inter alia, his methods of work and, in particular, specific
promotional activities. In particular, the Commission has reacted to each of Mr.
Cumaraswamy's four annual reports by noting with appreciation his determination
to achieve as wide a dissemination as possible of information about existing standards relating
to the independence and impartiality of the judiciary and the independence of the legal
profession in conjunction with the publications and promotional activities of the Centre for
31
Human Rights.
The Court should note in particular that, consistent with this practice, Mr. Cumaraswamy on
August 23, 1995, more than two months before the publication in November 1995 of the
article in International Commercial Litigation which gave rise to this case, issued the
following press statement on the same subject:
Complaints are rife that certain highly placed personalities in Malaysia including those in the
business and corporate sectors are manipulating the Malaysian system of justice and thereby 33
undermining the due administration of independent and impartial justice by the courts.
The press statement further made clear that it was given in the context of Mr. Cumaraswamy's
mission:
Under the mandate entrusted to me by the United Nations Commission on Human Rights, I
am duty bound to investigate these complaints and report to the same Commission, if
possible, at its fifty-second session next year. To facilitate my inquiries I will seek the
cooperation of all those involved in the administration of justice, including the Government
which, under my mandate, is requested to extend its cooperation and assistance. 34
The Commission subsequently took note of Mr. Cumaraswamy's report to it reciting this
statement, and noted with appreciation his determination "to achieve as wide a dissemination
as possible of information." Such approval can only be taken as specific confirmation that, in
making such statement (and the subsequent similar one to International Commercial
Litigation), Mr. Cumaraswamy acted "in the course of the performance of [his] mission." The
Commission gave similar approval to Mr. Cumaraswamy's further report, which specifically
explained that the statements attributed to him in International Commercial Litigation had
been made in his capacity as Special Rapporteur. 35 Again, the Commission's response
amounts at least to an implicit endorsement of the Special Rapporteur's position. This is
further, and emphatically, confirmed by the fact, as is recounted in paragraph 4 of the Note by
the Secretary-General, that following Mr. Cumaraswamy's third Report to the Commission, in
which he described the civil litigation against him in Malaysian courts to which the instant
36 37
issue of immunity relates, the Commission renewed his mandate for a further three years.
The Commission thus has established a specific record of practice in Mr. Cumaraswamy's
case that is consistent with and confirmatory of the general practice of United Nations special
rapporteurs to issue statements to the press in the course of performing their missions. 38
Pursuant to Article 31(3)(b) of the Vienna Convention on the Law of Treaties, this
unchallenged and consistent practice is authoritative, if not absolutely determinative.3. The Special Rapporteur's Statements To The Press Were Necessary For The "Establishment
Of . . . Contacts Which May Be Useful For The Preparation . . . Of [His] Report[] To The
[Commission]"
As this Court recognized in Mazilu, the mandate of a special rapporteur constitutes a
"research mission," which requires the compilation of materials and cannot be accomplished
39
in isolation from the outside world. This Court held, therefore, that the immunities of Article
VI, Section 22, of the General Convention apply to special rapporteurs such as Mr.
Cumaraswamy, "in particular for the establishment of any contacts which may be useful for
the preparation, the drafting and the presentation of their reports to the [Commission]." It is,
moreover, plain common sense that Mr. Cumaraswamy's statements to the media, on the
subject of his mandate, were objectively necessary for the establishment of such contacts.
Members of the public cannot seriously be expected to "transmit[]" any "substantial
allegations" to Mr. Cumaraswamy until they have been made aware of his activities,
including the information he is receiving. Only then will they know to whom they may
address complaints and to whom they may safely volunteer further information regarding
attacks on the independence of judges and lawyers. Simply put, these steps were necessary for
"the establishment of . . . contacts which [were] useful for the preparation" of Mr.
Cumaraswamy's reports and, therefore, fall within the immunities created by Article VI,
Section 22, of the General Convention and recognized by this Court in Mazilu.
V. The Legal Obligations Of Malaysia In This Case
A. Municipal Courts Of States Parties To The General Convention Are Legally Obligated To
Give The Secretary-General's Certificates Conclusive Effect
The position of the Secretary-General that it is for him alone to determine, with conclusive
effect in municipal courts of States Parties to the General Convention, whether an expert on
mission has acted in the course of the performance of his or her mission, is supported by the
terms of the General Convention, particularly considering its object and purpose, as well as
the accepted consistent practice of the United Nations. 43
Article 105 of the Charter contemplates that the immunities to be granted by the General
Convention to United Nations officials (and by extension to experts on mission) are to be such
as are necessary for the independent exercise of their functions in connection with the United
Nations. 44Thus, it is for the United Nations, and not for individual States Parties, to determine
whether experts are i45fact acting "in the course of the performance of their mission" in any
given circumstance. In fact, by "agreeing to accord privileges and immunities to their own
nationals for the purpose of enabling them to carry out their functions when appointed as
experts on missions . . . Member States by necessary implication conceded to the United
Nations a right in good faith" to d46ermine whether or not they have acted in performance of
their missions at any given point.
If, contrary to these authorities, the municipal courts of all 139 States Parties to the General
Convention retained the authority to determine the scope of an expert's mission and, thus, his
immunity, the United Nations would lose control over its internal affairs and, more
importantly, the independence that Article VI seeks to protect. Such an approach is untenable.
Indeed, on the facts of this case it becomes virtually inconceivable, for it would contemplate
the appointment of a special rapporteur to investigate the independence of the municipal
judiciary (and advocates), while allowing the very subjects of the special rapporteur'sinvestigation to determine the scope of his immunity for statements relating to their
independence. Such a role for municipal courts could not possibly guarantee the "independent
exercise" of functions by the Commission's special rapporteurs. To the contrary, as the
Commission's special rapporteurs themselves already have remarked, such interfere47e would
constitute "an attack on the entire system of the human rights mechanisms."
It is precisely to preclude such municipal impairment of immunities that the General
Convention provides an exclusive dispute settlement procedure in Article VIII, Section 30,
requiring that a binding advisory opinion by the Court "shall" be sought as to "[a]ll
differences arising out of the interpretation or application of the" General Convention.
(Emphasis added.) By using the words "all" and "shall," Section 30 clearly excludes
municipal courts from the settlement of disputes arising under the General Convention.
In this respect, issues of immunity under the General Convention clearly are, and must be,
treated differently than, for example, issues of immunity of bilaterally accredited diplomatic
and consular officers. The latter areas enjoy no exclusive dispute settlement mechanism. 48
There it perforce is the practice of national courts to determine independently whether a party
fulfills the requirements of immunity. The consequences of this are, by comparison, tolerable
49
for, as the Court has pointed out, the law of diplomatic and consular immunity is a self-
contained regime that derives its effectiveness, and hence its protection, from the inherent
principle of reciprocity, which likewise more securely guarantees a uniform application of the
law by States. The same is not true as regards officials of the United Nations. One
commentator 50 has made this point quite trenchantly against the background of the Court's
51
statement in the Asylum case, in which it denied Colombia the right unilaterally and
definitively to determine whether a certain offense by a refugee qualified for asylum:
When we apply the Court's statements to the issue of whether an organization can make a
unilateral and definitive qualification of the nature of its activities, it must be pointed out that
the Court in its conclusion relied heavily on the principle of the territorial sovereignty of
States and the equal rights enjoyed by these particular subjects of international law. But
international organizations lack sovereignty and have no territory of their own. Because their
rights can hardly be said to equal those enjoyed by States, international organizations need
special protection. One element of protection should be the organization's right of unilateral
and definitive qualification of its activities. This consideration applies also in case the
organization has a direct dispute with a private individual instead of with a State, because it
will still be the courts, as (independent) organs of States, which would be given the right to
ultimately qualify organizational immunities, thereby opening themselves up to frivolous suits
against international organizations.
Contrary to what the Court stated with regard to States, the absence of an explicit provision
should not be interpreted to deny an organization's inherent right of unilateral and definitive
qualification of its activities. The argument of prevention of abuse does not weigh as heavily
in the case of international organizations as it does in that of States, because the former
remain under the collective control of the member States and internal mechanisms exist,
particularly in the plenary organ of the organization, for Members who want a review, on their
own initiative or on behalf of their citizens, of a certain practice of the organization. 52
Finally, the position of the Secretary-General is consistent with the holding of the Court that
"when the Organization takes action which warrants the assertion that it was appropriate forthe fulfillment of one of the stated purposes of the United Nations, the presumption is that
such action is not ultra vires the Organization."53
B. Alternatively, The Municipal Courts of States Parties To The General Convention Are
Legally Obligated To Treat The Issue of Immunity Expeditiously And As A Preliminary
Matter
Should the Court find that municipal courts of States Parties to the General Convention are
not obligated to accept the Secretary-General's certificates as conclusive, then such courts are
obligated at a minimum to deal with the issue of immunity expeditiously and as a preliminary
matter. Article VI, Section 22, of the General Convention provides "immunity from legal
process of every kind" and not merely from liability. As such, it necessarily contemplates that
an expert on mission should not be subjected to any legal process, except upon a final
determination (including by advisory opinion of this Court) that he or she is not, under the
circumstances, entitled to immunity. Thus, resolution of such an issue, where it is legitimately
disputed, may not be made to await conclusion of a municipal trial on the merits of the very
matter to which the plea of immunity is addressed. To give immunity any meaning, it must be
dealt with fully and definitively at the outset of the litigation in respect of which it is invoked.
C. The Government Of Malaysia Was Legally Obligated To Respect The Exclusivity Of The
Dispute Resolution Procedures Of Article VIII, Section 30, Of The General Convention
The Malaysian Government's obligation to comply with the dispute resolution procedures of
Article VIII, Section 30, of the General Convention required it, upon determining not to honor
the claim of immunity in respect of the Special Rapporteur, expeditiously to inform the
Secretary-General that a difference had arisen within the meaning of Article VIII, Section 30.
An advisory opinion from this Court, in accordance with Article VIII, Section 30, could, then,
promptly have been requested (and proceedings stayed, see D. below, pending the conclusion
of this Court's advisory proceeding). The Malaysian Government's failure to do so,
compounded by its submission to its municipal courts of statements inconsistent with the
certificates of the Secretary-General and the continuation of proceedings against the Special
Rapporteur, was in conflict with Malaysia's obligations under the General Convention.
D. Malaysia Is Legally Obligated To Ensure That All Judgments, Orders and Proceedings
Before The Malaysian Courts In This Matter Are Stayed Pending Receipt Of The Court's
Advisory Opinion
Under Article VIII, Section 30, of the General Convention, the parties to a "difference" must
respect this Court's exclusive jurisdiction. Therefore, from the moment that a "difference"
arises until this Court renders its advisory opinion, the parties must suspend any municipal
legal proceedings that raise an issue falling within this Court's exclusive competence. This
follows from the object and purpose of Section 30, which seeks to prevent inconsistent
applications of the General Convention by the municipal courts of its 139 States Parties, and
to ensure its uniform implementation.
E. Malaysia Was Under A Legal Obligation To Ensure That The Presiding Judge Of The
Malaysian Court of Appeal Recused Himself
The judge presiding over the decision of the Court of Appeal in Kuala Lumpur on Mr.
Cumaraswamy's substantive appeal on August 20 to 21, 1997, Justice Gopal Sri Ram, earliersat in a case that was a subject of Mr. Cumaraswamy's investigation. For that reason, his
recusal was sought by Mr. Cumaraswamy and, in fact, demanded by the most fundamental
principles of procedural fairness. As a consequence of Malaysia's obligation to respect Mr.
Cumaraswamy's immunity under the General Convention, Malaysia was obligated, at the very
least, to ensure that any determinations be made by an undeniably disinterested jurist, and not
by a putative subject of Mr. Cumaraswamy's investigation. To most fully ensure achievement
of that end, the requested recusal should have been granted.
F. The Malaysian Government Is Legally Obligated To Pay Damages For All Costs Incurred
By Mr. Cumaraswamy In The Course Of The Legal Proceedings Before The Malaysian
Courts
Malaysia is internationally responsible for the breach of international legal obligations by its
organs, which includes both the Government and its courts. As a result of Malaysia's
violations of its international obligations under the General Convention, Mr. Cumaraswamy
has incurred substantial liabilities in court-ordered costs and legal fees. Malaysia, therefore, is
obligated to compensate him for these financial losses. Should the United Nations, in the
meantime, have assumed this financial burden for Mr. Cumaraswamy, Malaysia's obligations
would be toward the United Nations instead. 55
G. Malaysia Is Legally Obligated To Adjust Its Legislation To Conform To The General
Convention Insofar As It Presently Deviates From That Convention
Under the Final Article, Section 34, of the General Convention, Malaysia is obligated to "be
in a position under its own law to give effect to the terms of this convention." If the Malaysian
courts interpret Malaysia's municipal implementing legislation to be different in scope 56an
the General Convention, as they already have done in the case of Mr. Cumaraswamy, then
Section 34 obligates Malaysia to take the action necessary to bring that legislation into line
with the General Convention.
VI. Conclusion
Article VI, Section 22, of the General Convention 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 1995
issue of International Commercial Litigation. As a result, Mr. Cumaraswamy is immune from
legal process in regard to those words and acts. Malaysia's legal obligations in this case are to
accept the conclusive effect of the Secretary-General's certificates; alternatively, to treat the
issue of immunity expeditiously and as a preliminary matter; to respect the exclusivity of the
dispute resolution procedures of Article VIII, Section 30, of the General Convention; to
ensure that all judgments, orders and proceedings in its courts are stayed pending the Court's
advisory opinion; to have ensured that the presiding judge of the Malaysian Court of Appeal
recused himself in the matter giving rise to this case; to pay Mr. Cumaraswamy (or the United
Nations, as the case may be) damages, including all court-ordered costs and legal fees,
incurred as a result of having to defend himself in Malaysian courts; and to conform its
legislation to the General Convention insofar as it presently deviates from it.
Respectfully submitted,
____________________________________ Gustavo Campos Sallas
Chargé d'affaires ad interim
of the Republic of Costa Rica
to the Kingdom of the Netherlands
Representative of the Republic of Costa Rica
October 7, 1998
Charles N. Brower
and Eckhard R. Hellbeck
White & Case LLP
601 Thirteenth Street, N.W.
Suite 600 South
Washington, D.C. 20005-3807
U.S.A.
1-202-626-3600
Counsel for the Republic of Costa Rica
Charles H. Brower, II
Croft Visiting Assistant Professor of Law
University of Mississippi School of Law
University, Mississippi 38677
U.S.A.
1-601-232-6857
Advocate for the Republic of Costa Rica
__________
1 ECOSOC Decision 1998/297 of Aug. 5, 1998,as available on <http://www.un.org>.
2 Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1946-1947 U.N.T.S. 15.
The Republic of Costa Rica acceded to the General Convention on October 26, 1949. Multilateral Treaties
Deposited with the Secretary-General, U.N. Doc. ST/LEG/SER.E, as available on
<http://www.un.org/Depts/Treaty>. Additionally, the Republicof Costa Rica has been a party to the Statute of
the International Court of Justice since November 2, 1945.Id.
3 American Convention on Human Rights, signed at San José, Costa Rica, Nov. 22, 1969,reprinted in 9 I.L.M.
673 (1970).
4 See Report of the Regional Meeting for Latin America and the Caribbean of the World Conference on Human
Rights, U.N. Doc. A/CONF.157/LACRM/15 - A/CONF.157/PC/58 (Feb. 11, 1993),as available on
<http://www.unhchr.ch>.
5 Vienna Declaration and Programme of Action, adopted by consensus by the World Conference on Human
Rights on June 25, 1993, U.N. Doc. A/CONF.157/23 (July 12, 1993), at para. 18,as available on
<http://www.unhchr.ch>.
6 See GA Resolution 48/141 of Dec. 20, 1993,as available on <gopher://gopher.undp.org> (establishing the post
of United Nations High Commissioner for Human Rights).7 Costa Rica's membership in the Commission on Human Rights totals 15 years (1964-67, 1975-77, 1980-1988,
1992-94). United Nations High Commissioner for Human Rights, United Nations Commission on Human Rights
Membership (1999), as available on <http:ndwww.unhchr.ch>. Mr. Fernando Volio Jiménez was elected
Chairman of the Commission for its 22 session in 1966. United Nations High Commissioner for Human
Rights, Bureau of the United Nations Commission on Human Rights (1947-1998), as available on
<http://www.unhchr.ch>. The Second Vice President of the Republic of Costa Rica, Elizabeth Odio Benito, has
served as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities.
8 ECOSOC Decision 1998/297 of August 5, 1998,supra n. 1.
9 Privileges and Immunities of the Special Rapporteur of the Commission on Human Rights on the Independence
of Judges and Lawyers, Note by the Secretary-General, U.N. Doc. E/1998/94 and Add.1, reprinted in Request
for Advisory Opinion of Aug. 7, 1998.
10 Malaysian Justice on Trial, International Commercial Litigation, Nov. 1995, at 10, submitted herewith as
Exhibit 1.
11 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion, I.C.J. Reports 1989, 177, at 187.
12 ECOSOC created the Commission pursuant to Articles 55(c) and 68 of the Charter by Resolution 5 (I) of
February 16, 1946. U.N. ESCOR, 1 Sess., at 163. The Commission's mandate is contained in ECOSOC
Resolution 9 (II) of June 21, 1946. U.N. ESCOR, 2 Sess., at 400.
13 See Applicability, supra n. 11, at 196-97 (on the practice of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities of the Commission on Human Rights to appoint special
rapporteurs).
14 Under Article 65(1) of the Statute the Court "may give" ("peut donner") an advisory opinion.
15 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 10, at para. 14;
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations,
Advisory Opinion, I.C.J. Reports 1989, 177, at 191;Western Sahara, Advisory Opinion, I.C.J. Reports 1975, 25,
at paras. 32-33; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
16, at 27; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion,
I.C.J. Reports 1962, 151, at 155;Judgments of the Administrative Tribunal of the ILO upon Complaints Made
Against UNESCO, Advisory Opinion, I.C.J. Reports 1956, 77, at 85-86.
16 Article VI, Section 22, of the General Convention provides in relevant part:
Section 22. Experts (other than officials coming within the scope of Article V) performing
missions for the United Nations shall be accorded such privileges and immunities as are
necessary for the independent exercise of their functions during the period of their missions,
including the time spent on journeys in connection with their missions. In particular, they shall
be accorded:
. . .
(b) in respect of words spoken or written and acts done by them in the course of the
performance of their mission, immunity from legal process of any kind. This immunity from
legal process shall continue to be accorded notwithstanding that the persons concerned are no
longer employed on missions for the United Nations.
17 Applicability . . . , supra n. 11, at 197, para. 55.
18 Id. at 194, para. 47. The Court interpreted Section 22 also in the context of Sections 23 and 26 of the General
Convention and Article 105 of the Charter. Id. at 192-93, paras. 41-43.19 Id. at 195, para. 51.
20 Id.
21 See Multilateral Treaties Deposited with the Secretary-General, supra n. 2.
22 Commission on Human Rights Resolution 1994/41 of Mar. 4, 1994, reprinted in 1994 Y.B. Comm'n H.R.
135, endorsed by ECOSOC Decision 1994/251 of July 22, 1994, U.N. ESCOR, Subst. Sess., Supp. No. 1, at 80,
U.N. Doc. E/1994/94.
23 Commission on Human Rights Resolution 1997/23 of Apr. 11, 1997, as available on
<http://www.unhchr.ch>, endorsed by ECOSOC Decision 1997/246 of July 22, 1997, U.N. ESCOR, Subst.
Sess., at 256, U.N. Doc. E/1997/23.
24 Commission on Human Rights Resolution 1994/41 of Mar. 4, 1994, supra n. 22, at op. para. 3.
25 See, e.g., Special Rapporteur on Burundi Strongly Condemns "Unspeakable Acts" Near Bujumbura on 1 and
6 January, U.N. Press Release HR/98/1, Jan. 7, 1998 (reporting on public statements made by the special
rapporteur); Special Rapporteur for Iraq Expresses Concern Over Killings of Shi'a Religious Leaders, U.N.
Press Release HR/98/45, July 2, 1998 (reporting on and quoting from a public statement issued by the special
rapporteur condemning assassinations by Iraqi officials); Press Statement by the Special Rapporteur of the
Commission on Human Rights on the Situation of Human Rights in Sudan, U.N. Press Release HR/97/83, Dec. 8,
1997 (quoting a press statement read by special rapporteur at a press conference);Statement of the Special
Rapporteur, Mr. Jiri Dienstbier, of the Commission on Human Rights on the situation of human rights in Bosnia
and Herzegovina, Croatia, and the Federal Republic of Yugoslavia, U.N. Press Release, Aug. 6, 1998 (transcript
of special rapporteur's oral statement to the press underlining his concern about serious human rights problems in
the countries of his mandate); all as available on <http://www.unhchr.ch>. All of these press statements were
made directly to the press by the special rapporteurs themselves and were later reproduced or reported in U.N.
press releases. See also Effective Implementation of International Instruments on Human Rights, Including
Reporting Obligations Under International Instruments on Human Rights, Note by the Secretary-General, U.N.
Doc. A/52/507, Oct. 21, 1997, at. para. 22 (advocating a more proactive role toward the media of human rights
treaty bodies, such as the Human Rights Committee established under Part IV of the International Covenant on
Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171), as available on <http://www.unhchr.ch>.
26 The positions expressed officially in support of Mr. Cumaraswamy by the Special
Rapporteurs/Representatives/Experts and Chairpersons of Working Groups of the Commission on Human Rights
and the Advisory Services Programme of the United Nations Commission on Human Rights further evidence
both the existence of this practice and its universal acceptance. See Privileges and Immunities of the Special
Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers, Note by the
Secretary-General, U.N. Doc. E/1998/94 and Add.1,annexed to Request for Advisory Opinion, Aug. 7, 1998, at
para. 19; Special Rapporteurs Concerned About Malaysia's Disregard of ECOSOC's Decision, U.N. Press
Release HR/98/66, Sept. 4, 1998, as available on <http://www.unhchr.ch>.
27 Article 31(3)(b) of the Vienna Convention on the Law of Treaties, May 3, 1969, U.N. Doc. A/CONF.39/27,
reprinted in 8 I.L.M. 679, 692 (1969), provides:
There shall be taken into account, together with the context:
. . .
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation.
This rule is made applicable to international organizations through Article 5 of that Convention.See
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports
1996, 66, at 75, para. 19 (July 8) (applying this rule to determine the scope of activities of the WHO).28 For other examples of public statements by Mr. Cumaraswamy in his capacity as special rapporteur see High
Commissioner for Human Rights Joins Three Special Rapporteurs in Urging Nigeria Not to Carry Out Death
Sentence, U.N. Press Release HR/98/32, May 1, 1998 (reporting that the High Commissioner joined in the
previous appeals of the special rapporteurs, including Mr. Cumaraswamy, to the Government of Nigeria);
Special Rapporteur Concerned About Possible Breakdown of Rule of Law in Pakistan, U.N. Press Release HR
97/78, Dec. 1, 1997 (reporting on the views previously expressed by Mr. Cumaraswamy to the press); all as
available on <http:www.unhchr.ch>.
29 In 1996, Mr. Cumaraswamy addressed six legal fora, seminars and conferences in Burkina Faso, Peru,
Thailand, Germany and Sri Lanka. [Third] Report of the Special Rapporteur on the independence of judges
lawyers, Mr. Param Cumaraswamy, U.N. Doc. E/CN.4/1997/32, Feb. 18, 1997, at para. 32. In 1997, he spoke at
a training project in Cambodia and a conference in the Philippines. [Fourth] Report of the Special Rapporteur on
the independence of judges and lawyers, Mr. Param Cumaraswamy, U.N. Doc. E/CN.4/1998/39, at chapter III.F.
30 Commission on Human Rights Resolutions 1995/36 of Mar. 3, 1995, at op. para. 1 (welcoming Mr.
Cumaraswamy's first report); 1996/34 of Apr. 19, 1996, at op. para. 1; 1997/23 of Apr. 11, 1997, at op. para. 1;
1998/35 of Apr. 17, 1998, at op. para. 1 ("tak[ing] note of the report submitted by the Special Rapporteur on the
implementation of his mandate"); all as available on <http://www.unhchr.ch>.
31 Commission on Human Rights Resolutions 1995/36 of Mar. 3, 1995, at op. para. 4; 1996/34 of Apr. 19, 1996,
at op. para. 4; 1997/23 of Apr. 11, 1997, at op. para. 4; 1998/35 of Apr. 17, 1998, at op. para. 4; all as available
on <http://www.unhchr.ch>. The Office of the United Nations High Commissioner for Human Rights, with
which the Centre for Human Rights is now consolidated, has the responsibility,inter alia, to promote and protect
the effective enjoyment of all human rights; to coordinate United Nations education and public information
programs in the field of human rights; to play an active role in removing current obstacles to the full realization
of all human rights and in preventing the continuation of human rights violations throughout the world; and to
coordinate human rights promotion and protection activities of the United Nations. GA Resolution 48/141 of
Dec. 20, 1993, at op. para. 4, as available on <gopher://gopher.undp.org>.
32 See [First] Report of the Special Rapporteur, Mr. Param Cumaraswamy, submitted in accordance with
Commission on Human Rights resolution 1994/41, U.N. Doc. E/CN.4/1995/39, Feb. 6, 1995, as available on
<http://www.unhchr.ch>, at para. 70 (stating that "in his methodology [Mr. Cumaraswamy] . . . will largely
follow the established common practice" of the various human rights mechanisms).
33 Quoted in [Second] Report of the Special Rapporteur on the independence of judges and lawyers, Dato'
Param Cumaraswamy, submitted pursuant to Commission on Human Rights resolution 1995/36, U.N. Doc.
E/CN.4/1996/37, Mar. 1, 1996, as available on <http://www.unhchr.ch>, at para.160. Also in 1995, Mr.
Cumaraswamy issued a press statement about a complaint received in Hong Kong which he had found to address
issues lying outside of his mandate. Id. at paras. 150-52.
34 Id.
35 [Third] Report of the Special Rapporteur on the independence of judges and lawyers, Mr.
Param Cumaraswamy, U.N. Doc. E/CN.4/1997/32,as available on <http://www.unhchr.ch>, at para. 124.
36 Id. at paras. 123-28.
37 Commission on Human Rights Resolution 1997/23 of Apr. 11, 1997, supra n. 23, at op. para. 8.
38 Finally, the magazine article in question in this case clearly indicated every time it attributed a statement to
Mr. Cumaraswamy that Mr. Cumaraswamy had made the statement in his capacity as Special Rapporteur, that he
had not yet finished his investigations, and that he had not yet made up his mind with regard to any conclusions
to be drawn from his investigations. Malaysian Justice on Trial, International Commercial Litigation, Nov. 1995,
10, at 13-14, submitted herewith as Exhibit 1.
39 See Applicability . . ., supra n. 11, at 197, para. 55 (stating that special rapporteurs are entrusted with a
"research mission," noting that this task requires the compilation of materials, and recognizing the need for
immunities particularly for the establishment of "useful"contacts).40 Id.
41 Mr. Cumaraswamy's mandate included the task "[t]o inquire into any substantial allegations transmitted to
him." See supra n. 24 and accompanying text.
42 See Privileges and Immunities of the Special Rapporteur of the Commission on Human Rights on the
Independence of Judges and Lawyers, Note by the Secretary-General, U.N. Doc. E/1998/94 and Add.1, reprinted
in Request for Advisory Opinion of Aug. 7, 1998, at para. 16.
43 In order to avoid unnecessary duplication of the Written Statement and Dossier to be submitted to the Court
by the Secretary-General, the Republic of Costa Rica refrains at this time from referencing in toto the numerous
documents reproduced in the United Nations Juridical Yearbooks and in other United Nations documents that
demonstrate such practice by the United Nations. See, however, e.g., Memorandum to the Assistant Secretary-
General for General Services, Apr. 5, 1983,reprinted in 1983 U.N. Jur. Y.B. 214, 215 (stating that the United
Nations has consistently maintained that it is exclusively within the competence of the Secretary-General to
determine when an act is carried out in an official capacity and that this is not a matter which is subject to review
by the local authorities). See also Note Verbale by the Secretary-General to the Permanent Representative of the
United States, Sept. 9, 1985, reprinted in 80 Am. J. Int'l L. 440, 441 (1986) (stating that review by the United
States Government whether travel designated as official by the Secretary-General is "bona fide official travel of
the United Nations" is problematic with regard to the Secretary-General's independent exercise of his
responsibilities under the Charter, free from national interference).
44 Art. 105 of the Charter provides:
(1) The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are
necessary for the fulfillment of its purposes.
(2) Representatives of the Members of the United Nationsand officials of the Organization shall similarly enjoy
such privileges and immunities as are necessary for the independent exercise of their functions in connection
with the Organization.
(3) The General Assembly may make recommendations with a view to determining the details of the application
of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this
purpose.
45 Cf. Applicability . . . , supra n. 11, at 198, para. 59 (recognizing that it was for the United Nations, and not for
Romania, to decide whether an individual retained his status as a special rapporteur).
46 Cf. id. at 216 (separate opinion Shahabuddeen, J., making this point with respect to the United Nations'
exclusive authority to determine an individual's continuing status as special rapporteur).
47 See Special Rapporteurs Concerned About Malaysia's Disregard of ECOSOC's Decision, U.N. Press Release
HR/98/66, Sept. 4, 1998, as available on <http://www.unhchr.ch>.
48 Only 61 States have ratified the Optional Protocol to the Vienna Convention on Diplomatic Relations
Concerning the Compulsory Settlement of Disputes, Apr. 18, 1961, 500 U.N.T.S. 241. Likewise, the Optional
Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes,
Apr. 24, 1963, 596 U.N.T.S. 487, has only 44 Parties.Multilateral Treaties Deposited with the Secretary-
General, supra n. 2.
49 Case concerning United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, 3, at 40, para.
86 (May 24).
50 Article 38(1)(d) of the Court's Statute provides that the teachings of the most highly qualified publicists are a
subsidiary means for the determination of rules of law.
51 Asylum (Colombia v. Peru), I.C.J. Reports 1950, 266 (Nov. 20).52 P. Bekker, The Legal Position of Intergovernmental Organizations 176-77 (1994).
53 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, 151, at 168. The Malaysian Court of Appeal disregarded this presumption when it held that the
Secretary-General's certificate appeared prima facie to fall outside the scope of the General Convention. MBf
Capital Berhard v. Dato' Param Cumaraswamy, No. W-02-323-1997 (Ct. of App. Malaysia) at 35.
54 That case involved a libel action by Tan Sri Vincent Tam, a businessman with wide corporate interests,
against four journalists over four articles published in the August and October 1993 issues of Malaysian
Industry, a business magazine. In 1995, Justice Gopal Sri Ram delivered the leading judgment of the Malaysian
Court of Appeal affirming a High Court award of RM 10 million (approximately US$4 million) in favor of Tan
Sri Vincent Tam. Observers reportedly viewed both the size of the award and the speed of the proceedings as
highly unusual for a libel case. Malaysian Justice on Trial, International Commercial Litigation, Nov. 1995, 10,
at 13-14, submitted herewith as Exhibit 1.
55 See Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports
1949, 174, at 187 (holding "[t]hat in the event of an agent of the United Nations in the performance of his duties
suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an
Organization has the capacity to bring an international claim against the responsible . . . government with a view
to obtaining the reparation due in respect of the damage caused to the victim").
56 MBf Capital Berhard v. Dato' Param Cumaraswamy, No. W-02-323-1997 (Ct. of App. Malaysia) at 34.
Written Statement of the Government of the Republic of Costa Rica