COUR INTERNATIONALE DE JUSTICE INTERNATIONAL COURT OF JUSTICE
INTERNATIONAL COURT OF JUSTICE
DIFFERENCE RELATING TO
IMMUNITY FROM LEGAL PROCESS
OF A SPECIAL RAPPORTEUR OF
THE COMMISSION ON HUMAN RIGHTS
WRITTEN COMMENTS
SUBMITTED ON BEHALF OF
THE SECRETARY-GENERAL OF THE UNITED NATIONS
__________
WRITTEN COMMENTS SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE
ON BEHALF OF THE SECRETARY-GENERAL OF THE UNITED NATIONS
TABLE OF CONTENTS
1 INTRODUCTION 1-3
I. SUBJECT ONLY TO SECTION VIII OF THE CONVENTION, THE SECRETARY-
GENERAL HAS THE EXCLUSIVE AUTHORITY TO DETERMINE WHETHER
WORDS WERE SPOKEN IN THE COURSE OF THE PERFORMANCE OF A
MISSION FOR THE UNITED NATIONS WITHIN THE MEANING OF SECTION
22(b) OF THE CONVENTION
A. The legal basis for and practice of the United Nations on the rights and duties of the
Secretary-General
B. Rationale for the Secretary-General's Assertion of the Immunity from Legal Process of the Special Rapporteur on the Independence of Judges and Lawyers
C. Secretary-General's Waiver of Privileges and Immunities 9-11 4-5
D. Applicability of Article VIII 12-16 5-6
II. THE GOVERNMENT OF MALAYSIA HAS NOT FULFILLED ITS OBLIGATIONS 17-23 6-8
UNDER THE CONVENTION
III. A DIFFERENCE BETWEEN THE UNITED NATIONS AND A MEMBER STATE
ON THE IMMUNITY FROM LEGAL PROCESS OF A UNITED NATIONS
24-25 9
EXPERT ON MISSION IS NOT A MATTER TO BE ADJUDICATED IN
NATIONAL COURTS
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INTRODUCTION
1. The United Nations has the honour to refer to the written statement submitted by the
Government of Malaysia in respect of the proceedings in the International Court of Justice
(hereinafter, "the Court") with respect to the question upon which the Economic and Social
Council (hereinafter, "ECOSOC") requested an advisory opinion, in its decision 1998/297 of
5 August 1998, on the Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights. The United Nations also has the honour to
refer to the written statements submitted by the Governments of Costa Rica, Germany,
Greece, Italy, Sweden, United Kingdom of Great Britain and Northern Ireland and the United
States of America.
2. In paragraph 10 of its written statement, Malaysia reaches three final conclusions as
follows.
"(a) Malaysia considers that the Secretary-General of the United Nations has not been vested
with the exclusive authority to determine whether words were spoken in the course of the
performance of a mission for the United Nations within the meaning of Section 22(b) of the
Convention" (the Convention on the Privileges and Immunities of the United Nations
(hereinafter, "the Convention")).
"(b) Malaysia has not acted in a manner which constitutes a breach of her obligations under
the General Convention.
"(c) The claim to immunity does not limit the jurisdiction of courts to ascertain whether there
is immunity."
3. The written statement submitted on behalf of the Secretary-General of the United Nations
drew three contrary conclusions.
(a) Subject only to Section VIII of the Convention, the Secretary-General of the United
Nations has the exclusive authority to determine whether words were spoken in the course of
the performance of a mission for the United Nations within the meaning of Section 22(b) of
the Convention.(b) The Government of Malaysia has not fulfilled its obligations under the Convention.
(c) A difference between the United Nations and a Member State on the immunity from legal
process of a United Nations expert on mission is not a matter to be adjudicated in national
courts.
I. SUBJECT ONLY TO SECTION VIII OF THE CONVENTION, THE SECRETARY-
GENERAL HAS THE EXCLUSIVE AUTHORITY TO DETERMINE WHETHER
WORDS WERE SPOKEN IN THE COURSE OF THE PERFORMANCE OF A
MISSION FOR THE UNITED NATIONS WITHIN THE MEANING OF SECTION
22(b) OF THE CONVENTION
A. The legal basis for and practice of the United Nations on the rights and duties of the
Secretary-General
4. In its written statement, the United Nations substantiated the legal basis for its position,
which has been invariably maintained by its established practice, that, subject only to Article
VIII of the Convention, the Secretary-General has the exclusive authority to determine
whether or not words were spoken in the course of the performance of a mission for the
United Nations and whether such words fall within the scope of the mandate entrusted to a
United Nations expert on mission within the meaning of Article VI, Section 22(b) of the
Convention (see paras. 38 to 49 of written statement). The United Nations has also stated that
the latter is coupled with the Secretary-General's right and duty, in accordance with the terms
of Article VI, Section 23 of the Convention, to waive the immunity where, in his opinion, it
would impede the course of justice and it can be waived without prejudice to the interests of
the United Nations (see paras. 46 to 48 of written statement).
5. This position which has consistently been maintained by the United Nations was supported
in the written statements submitted by Costa Rica (in Part V.A of its written statement),
Germany (on page 1 of its written statement) and Sweden (on pages 2-3 of its written
statement). In paragraph 4 of its written statement, Italy noted that, although each Party had
the right to interpret the Convention, any differences were to be settled by the Court. The
United Nations' position also received support in the written statements submitted by the
United Kingdom of Great Britain and Northern Ireland and the United States of America who
argue that unless there are compelling or powerfully contrary circumstances, the Secretary-
General's determination must be given great weight and deference (in paragraph 6 of the
United Kingdom's written statement and in paras. 19 to 24 of the United States' written
statement). In this case, they conclude that no such circumstances exist (see para. 6 of the
United Kingdom's written statement and para. 41 of the United States' written statement).
B. Rationale for the Secretary-General's Assertion of the Immunity from Legal Process of the
Special Rapporteur on the Independence of Judges and Lawyers
6. In paragraphs 7.5 and 7.13 of its written statement, the Government of Malaysia correctly
states that the juridical basis of the immunity from legal process of experts on missions is
functional in nature and whether it exists in a particular situation is a factual question to be
determined by the Secretary-General in a judicious manner. In paragraph 7.12, however, the
Government of Malaysia indicates that it does not accept the Secretary-General'sdetermination as conclusive. In paragraphs 35 and 48 of its written statement, the United
Nations explicitly confirmed that the privileges and immunities accorded to experts on
missions by Section 22 of the Convention are functional and that the distinction between acts
performed in an official capacity and those performed in a private capacity, which lies at the
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 that it is
exclusively for the Secretary-General to determine the extent of the duties and functions of
United Nations officials and experts on missions. (Dossier No. 113, paragraph 7). Any
differences concerning the Secretary-General's determination must be settled in accordance
with the provisions of Article VIII, Section 30 of the Convention.
7. In paragraph 7.6 of its written statement, the Government of Malaysia asserts that it has not
been given a rationale for the Secretary-General's assertion of the immunity from legal
process of the Special Rapporteur on the independence of judges and lawyers (hereinafter,
"the Special Rapporteur"). The documents contained in Dossier Nos. 19, 21, 22, 27, 28, 29,
32, 33, 37, 38, 43, 44, 47, 48, 49, 51 and 52 explicitly state that the Secretary-General
maintains the Special Rapporteur's immunity because he had determined that the words which
constitute the basis of plaintiffs' complaints in this case were spoken by the Special
Rapporteur in the course of the performance of his mission. The article "Malaysian Justice on
Trial" in the November issue of the British magazine International Commercial Litigation
(Dossier No. 14) clearly refers to the Special Rapporteur's official capacity and to his United
Nations mandate to investigate allegations concerning the independence of the judiciary and
that the quoted passages related to such allegations.
8. Moreover, it is clear from both the United Nations' and the Government's statement of the
facts that the Government of Malaysia did not request further substantiation of the basis for
the Secretary-General's assertion of the Special Rapporteur's immunity from legal process. In
this connection, it is also worthy of note that between 28 December 1995 and 19 February
1998, taking into account only the documents contained in the Dossier, while the United
Nations sent 20 communications to the competent authorities of the Government of Malaysia
(Dossier Nos. 17, 18, 19, 21, 22, 27, 29, 32, 33, 37, 38, 39, 42, 43, 44, 47, 48, 49, 51 and 52),
the United Nations only received two in reply (Dossier Nos. 26 and 31).
C. Secretary-General's Waiver of Privileges and Immunities
9. In paragraphs 7.8 and 7.9 of its written statement, the Government of Malaysia contends
that there is a general recalcitrance to exercise waiver and that, in this particular case, no facts
have been disclosed that waiver would operate against the interests of the United Nations. At
the outset, it must be noted that, at no point, did the Government of Malaysia or the private
plaintiffs request a waiver of the Special Rapporteur's immunity.
10. With respect to the first statement, Dossier Nos. 72, 74, 76, 78, 79, 82, 83, 84, 87, 90, 92,
93, 94, 95, 96, 98, 99, 103, 104, and paragraph 6 of 115 illustrate not only the Secretary-
General's readiness to waive the privileges and immunities of officials and experts on
missions where they would impede the course of justice 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 official
functions of a United Nations official or to the mission or mandate entrusted to an expert on
mission (Dossier Nos. 103 and 104).11. As to the United Nations contention that waiver would operate against the interests of the
United Nations generally, and the human rights mechanism of the United Nations system
specifically, the United Nations respectfully refers to Dossier Nos. 28, 32, 33, 36, 37, 40, 44,
and 54 and to Part IV (E) of its written statement. The importance of these interests is
confirmed in the written statements submitted by Costa Rica (in Part IV.B of its written
statement), Sweden (on page 1 of its written statement), the United Kingdom of Great Britain
and Northern Ireland (in para. 4 of its written statement) and the United States of America (in
para. 40 of its written statement). The negative effect that the adjudication of the privileges
and immunities of human rights special rapporteurs is further elaborated in the High
Commissioner for Human Rights' letter of 2 October 1998 (Dossier No. 54 bis).
D. Applicability of Article VIII
12. 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, Section 30 of the
Convention, at this stage, and that disputes involving experts on missions are not covered by
the dispute settlement mechanisms provided for under paragraphs (a) and (b) of Article VIII,
Section 29 of the Convention.
13. In Part IV (D) of its written statement, the United Nations submits that asserting the
Special Rapporteur's immunity from legal process would not impede the course of justice as
the Convention provides remedies both to the private plaintiffs in the four lawsuits as well as
to the Government of Malaysia.
14. Article VIII, Section 29(a) deals with disputes of a private law character to which the
United Nations is a party. It is clear that a claim of libel and/or slander constitutes a dispute of
a private law character. Moreover, once the United Nations maintained that the words giving
rise to the lawsuits were spoken by the Dato' Param Cumaraswamy in his official capacity and
within the course of the performance of the mission entrusted to him by the United Nations
Commission on Human Rights, the United Nations had an obligation to protect the Special
Rapporteur and to ensure respect for his immunity from legal process. As this immunity was
at the heart of the litigation and as the United Nations had formally ratified the words of its
expert on mission, the plaintiffs could have pursued the matter with the United Nations as the
party to the dispute. Article VIII, Section 29(a) of the Convention is therefore applicable to
the dispute.
15. Article VIII, Section 29(b) of the Convention refers to disputes involving any official of
the United Nations who by reason of his official position enjoys immunity, if immunity has
not been waived by the Secretary-General. In paragraph 9.8 of its written statement, the
Government of Malaysia asserts that Section 29(b) is limited to disputes involving officials.
In this connection, it should be noted that although the provisions of Article VIII were
included in the original draft Convention forwarded by the Preparatory Commission of the
United Nations, Article VI, in its entirety, was only later added to the draft Convention (See
Dossier Nos. 62 through 66). It is argued here that it is the intent of Section 29(b) to cover the
situation of third party plaintiffs faced with an assertion of immunity by the United Nations
for the words or acts of its agents, officials and experts on missions alike. In any case, the
United Nations maintains that Section 29(b) could be made applicable, mutatis mutandis, to
experts on missions who enjoy immunity, if immunity has not been waived by the Secretary-
General. The United Nations has never sought to deny plaintiffs an appropriate remedy; it has
merely sought to ensure that the forum and the remedy are in conformity with the Convention.16. As to the applicability of Article VIII, Section 30 of the Convention, the United Nations
maintains that a difference relating to the immunity from legal process of an expert on
mission is precisely a difference arising out of the interpretation or application of the
Convention. In this case, the difference arises between the United Nations on the one hand
and a Member on the other hand, and it is precisely a difference of this kind which shall be
referred to the Court on the basis of a request for an advisory opinion in accordance with
Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the
Court is not futile but shall rather be accepted as decisive by the parties in accordance with
Section 30 of the Convention and operative paragraph 2 of ECOSOC decision 1998/297.
II. THE GOVERNMENT OF MALAYSIA HAS NOT FULFILLED ITS
OBLIGATIONS UNDER THE CONVENTION
17. Pursuant to Section 34 of the Convention, "[i]t 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.
18. In Part V of its written statement, the United Nations argued that the Government of a
Member State party to the Convention has an obligation to give effect to the immunity from
legal process of an expert on mission under Section 22(b) of the Convention. At the very
least, the latter obligation includes the obligation of the Government to inform its competent
judicial authorities that the Secretary-General of the United Nations has determined 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 and that the United
Nations therefore maintains the immunity from legal process of the expert on mission
concerned with respect to those words or acts.
19. The United Nations is of the view that Malaysia did not fulfil its 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 1997 (Dossier No. 29) to
its competent judicial authorities nor otherwise formally informed them that the Secretary-
General of the United Nations had determined that the words giving rise to the proceedings in
its national courts were spoken in the course of the performance of a mission for the United
Nations and that the United Nations had maintained the immunity from legal process of the
Special Rapporteur with respect thereto.
20. In paragraphs 5.5, 9.9 and 10(b) of its written statement, the Government of Malaysia has
argued that it fulfilled its obligations when the Minister for Foreign Affairs of Malaysia issued
the Certificate of Immunity on 12 March 1997 (Dossier No. 31). The Minister's Certificate is
not in conformity with Malaysia's obligations under the Convention. In accordance with
Section 22(b) of the Convention, experts on mission shall be accorded immunity from legal
process of every kind "in respect of words spoken or written and acts done by them in the
course of the performance of their mission". The Minister's Certificate states that Dato' Param
Cumaraswamy "shall be accorded immunity from legal process of every kind only in respect
of words spoken or written and acts done by him in the course of the performance of his
mission" (emphasis added). The word "only" is not found in Section 22(b) of the Convention;
the addition of that word, in effect, invited the national courts to conclude that it was for them
to decide whether or not the Special Rapporteur spoke the words complained of in his officialcapacity and whether doing so was within the scope of the mandate entrusted to him by the
United Nations Commission on Human Rights.
21. By failing to amend or supplement the Minister's Certificate of Immunity or otherwise
intervening in the legal proceedings so as to refer to the Secretary-General's certificate and by
implicitly authorizing its courts to disregard the Secretary-General's determination as to the
capacity and scope of the mission of the Special Rapporteur, the Government of Malaysia
failed to fulfil its obligations under the Convention.
22. In paragraph 2.7 of its written statement, the Government of Malaysia indicates that there
are two legislative instruments applicable to the privileges and immunities of experts on
missions. The first is the Diplomatic Privileges Ordinance of 1948 (contained in Annex I to
the written statement submitted by Malaysia). The second is the International Organizations
(Privileges and Immunities) Act of 1992 (contained in Annex II to the written statement
submitted by Malaysia). Section 12(b) of the Diplomatic Privileges Ordinance provides that
"[e]xcept in so far as in any particular case any privilege or immunity is waived by the
Secretary-General of the United Nations, persons employed on missions on behalf of the
United Nations shall enjoy immunity from legal process of every kind in respect of words
spoken or written and all acts done by them in the exercise of these functions". Section 7(1) of
the International Organizations (Privileges and Immunities) Act, pursuant to which the
Minister for Foreign Affairs issued the Certificate of Immunity, provides that "[t]he Minister
may give a certificate in writing certifying any fact relating to the question whether a person
is, or was at any time or in respect of any period, entitled, by virtue of this Act or the
regulations, to any privileges and immunities" (emphasis added). Section 7(2) of that Act
further provides that, "[i]n any proceedings, a certificate given under this section is evidence
of the facts certified".
23. Based on the foregoing, the Minister for Foreign Affairs could have certified that the
Secretary-General had issued a certificate of the Special Rapporteur's immunity in accordance
with Malaysia's international obligations under the Convention. If the Government disagreed
with the Secretary-General's conclusion that the Special Rapporteur had spoken the words
complained of in the course of the performance of his mission for the United Nations, the
Government should have resorted to the dispute resolution mechanism of Article VIII of the
Convention to resolve that difference. It was not consistent with the Government of
Malaysia's obligations under the Convention to disregard the Secretary-General's certificate
and to issue a certificate (Dossier No. 31) which not only left it open to the Malaysian Courts,
but in effect invited them, to resolve the difference between the United Nations and the
Government.
III. A DIFFERENCE BETWEEN THE UNITED NATIONS AND A MEMBER STATE
ON THE IMMUNITY FROM LEGAL PROCESS OF A UNITED NATIONS EXPERT
ON MISSION IS NOT A MATTER TO BE ADJUDICATED IN NATIONAL COURTS
24. In paragraph 7.4 of its written statement, the Government of Malaysia contends that for it
to reiterate the determination made by the Secretary-General in his certificate is tantamount to
asking Malaysia to oust the jurisdiction of its courts and to treat her judicial organs with
disrespect. The United Nations respectfully submits that calling upon a Government of a
Member State to fulfil international obligations it had freely and legally undertaken by virtueof its accession to the Convention without reservation constitutes no disrespect to, or
infringement upon, the proper jurisdiction of the national courts of that Member State.
25. For the reasons set out in its written statement, the United Nations maintains that
differences concerning the immunity from legal process of an expert on mission for the
United Nations cannot be adjudicated in national courts. It is clear that if the national courts of
Member States could substantively dispute the Secretary-General's determination that a word
or act was spoken, 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. The adjudication of an immunity from legal process
would be tantamount to a denial of that very immunity. Member States party to the
Convention are obliged to settle any disputes in their own right, or on behalf of their courts
and/or citizens, in accordance with the settlement of dispute provisions of Article VIII of the
Convention.
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Hans Corell
The Legal Counsel
30 October 1998
Written Comments submitted on behalf of the Secretary-General of the United Nations