KBl\.1N 32/98
The Embassyof Malaysiapresents itscomplementsto theInternationalCourt of Justice
and, with reference to the former•s Note Verbale No. KBMN 28/98 dated 23 October
1998 in respectoftheOrcieroftheInternationalCourt of Justice dated 10 August 1998 in
connectionwith the requestfromthe UnitedNationsEconomie and SocialCouncilfor an
Advisory Opinion from the International Court of Justice regarding the ·Difference
Relating to Immunityfrom Legal Process of a SpecialRapporteurof the Commissionon
HumanRights,bas thehonourto encloseherewiththefollowingdocuments:
1. Original copy of the letter dated 3 November 1998 from the Solicitor
General ofMalaysia
2. Two (2) original texof the WrittenComments
3. Two (2) original texts of Annexes Appended to the Written Comments
The Embassy of Malaysiaavails itself of this opporrunityto renew to the International
Court ofJusticetheassurancesofitshighest consideration.
The Hague
5 November, 1998'~-~
JABATAN PEGUAM NECARA, MALAYSIA.
(ATTORNEY-GENERAL ·s CHAMBERS, MALAYSIA),
TINGKAT 5. tl-2.0,
BANGUNAN BANK RAKY.A.T. Td: 03-29230ï7
JALAN TANGSI. Fax.: 03-2932.021
50512. KUALA LUMPUR
Ruj. Tuan:
Your Re{
Ruj. Kami:
Our Re['
Tarikh3November1998
Date:
The Registrar
InternationalCourtof Justice
Peace Palace
2517 KJ The Hague
THE NETiffiRLANDS
Sir,
1havethehonourtoreferto theOrderoftheActingPresidentoftheInternationalCourt
ofJustice dated 10August1998 inconnectionwiththerequestforanAdvisoryOpinion
oftheInternational Courtof Justice regardingtheDifferenceRelating to lmmunity from
Legal Process of a Special Rapporteurof the Commissionon Human Rights, and the
Written Statementssubmitted bytheUnitedNations and severa!otherStatesparties.
Submitted herewith is the Written.Commentsof the Govemmentof Malaysiato the
Written Statements statedabove,inaccordancewith the aforementionedOrderof 10
August 1998.
Accept, Sir,the assurancesofmyhighestconsideration.
•
(Dato'HeliliahMohd Yusof)
Solicitor-General,
MalaysiaInternational Court of .Justice
Difference Relating to lmmunity
From Legal Process of
A Special Rapporteur of
The Commission on Human Rights
(Request for Advisory Opinion)
Written Comments of the
Govemment of Malaysia on the
Written Submissions of the United
Nations and Other States
November 1998
A...'f"l'GENERA.LG1-Lo\MBERS TABLE OF CONTENTS
Page
A. GENERAL 1
1. Introduction
2. The importance of the request for
the advisory opinion and section 34
B. THE FACTS OF THE CASE 4
c. QUESTION 1 6
General
Acts Performed in Official Capacity aqd those
Performed in Private Capacity
D. REASONS ADVANCED IN SUPPORT OF THE 15
'EXCLUSIVE' AUTHORITY TO ASSERT
IMMUNITY UNDER SECTION 22(b) (IN THE
WRITTEN STATEMENT OF THE UN)
(a) Resolutions of the General Assembly
(b) Subsequent Practice
(c) Waiver of lmmunity
(d) Section 22(b)- Performance of a Mission
Section 23- lmmunities granted in the
interestsof the United Nations and not
for persona! benefit
E. QUESTION OF INTERPRETATION
31
F. QUESTION 2 55
G. CONCLUSION 70 ANNEXES
1. (a) The Legal Effect of Resolutions and Codes of Conduct
by Stephen M. Schwebel
(b) International Law in a Divided World
by Antonio Cassese
Il. Analysis of Dossiers
Ill. (a) Commonwealth Law Ministers Meeting Agenda
15- 19 April 1996, Kuala Lumpur, Malaysia
(b) Agenda Item No. 1(a)
Advancing Commonwealth Fundamental Values
Trtle of paper: LMM(96)22
Independance, Quality and Status of
Judiciary in Commonwealth Countries
IV. Conviction and Suspicion of Members of the Secretariat on
Account of Subversive Activities
by Stephen M. Schwebel
V. The Interpretation of Treaties By Domestic Courts
by C.H. Schreuer
VI. (a) Universal Declaration of Human Rights
(b) International Covenant on Civil and Political Rights
VIL Breach of Treaty
by Shabtai Rosenne A. GENERAL
1. Introduction
1.1 Pursuant to Articl96 paragraph 2 of the Charter of the United Nations
and in accordance with the General Assembly resolution89(1)authorising
the Economie and Social Council ta request Advisory Opinions of the
International Court of Justice, the Economie and Social Council, on5th
1
August 1998 having considered the Note by the Secretary-General on
the privilegesand immunities of the Special Rapporteur of the
Commission on Human Rights on the Independance of Judges and
Lawyers, has considered that a difference has ?lrisenbetween the United
Nations and the Govemment of Malaysia within the meaning of Section
30 of the General Convention on the Privileges and lmmunities of the
Unit~ Ndtions (hereinafter referred to as ''the General Convention") with
respect to the immunity from legal process of Data' Param
Cumaraswamy, the Special Rapporteur of the Commission on Human
Rights on the Independance of Judges and Lawyers. The request for an
Advisory Opinion is on the legal question of the applicability of Article VI
Section 22 of the General Convention in the case of Data' Param
Cumaraswamy as Special Rapporteur.
1.2 Since the difference that has arisen concerns the interpretation or
application of the General Convention and at this stage no other mode of
settlement has been agreed upon, Malaysia did not oppose the
submission of the matter to the International Court of Justice in
accordance with Section 30 of the General Convention.
Ell998/1994
12. The Importance of the Request for the Advisory Opinion and Section
34
2.1 For the purposes of this Written Reply, the Questions that have been
referred ta the Court are :
1. Subject only to Section 30 of the Convention on the Privileges and
lmmunities of the United Nations does the Secretary General of
the United Nations have the exclusive authority ta determine
whether words are spoken in the course of the performance of a
mission for the UnitedNations within the meaning of Section 22 (b)
of the Convention.
2(a) ln accordance with Section 34 of the Convention, once the
Secretary General has determined that such words were spoken
in the course of the performance of a Mission and has decided ta
maintain or not ta waive the immunîtyform legal process, does the
Government of a Member State party ta the Convention have an
obligation ta give effectto that immunity in its normal courts and,
(b) If failing ta do so, ta assume responsibility for, and any costs,
expenses and damages arising from, any legal proceedings
brought in respect of such words.
2.2 ln the first opinion requested of the Court on Conditions of Admission of
aState ta Membership jn the United Nations, the Court affirmed that as
the principal judicial organ of the United Nations, it could exercise, in
regard ta the Charter, a multilateral treaty, an interpretative function which
2
falls within the exercise of its judicial powers. Malaysia considers the
contribution ofthe Court important as the action ofthe Special Rapporteur
2
lCJ Reports 1947-48 atpg.61
2has far reaching effects on the role of experts in the performance of a
mission.
3 B. THEFACTSOFTHECASE
3.1 The circumstances giving rise to the Note of the Secretary-General to
assert the immunityandthe issue of the certificats of the Foreign Minister
which gives rise to the question whether Malaysia is refusing tc fulfil a
treaty obligation is unusual. This is not a case of the Government of
Malaysiainstituting an actionagainst the Special Rapporteur for contempt
of court or a case on the Special Rapporteur being arrested for criminal
defamation. As statedinparagraph 16ofthe WrittemStaternentsubmitted
on behalf of the Secretary-General of the United Nations (hereinafter
referred tc as "the Written Statement of the UN"), as a result of certain
remarks in an article published in the November 1995 issue of the British
magazine International Commercial Litigation. two commercial
companies in Malaysia asserted that the article contained defamatory
words that had "brought them into public scandai, odium and contempt".
3.2 Paragraph 17 of the Written Statement of the UN refers inter a/ito the
letter dated 3rd January 1997 addressed "To Whom lt May Concern''
notifying the competent Malaysian authorities that the United Nations
maintained the immunity from legal process of its Special Rapporteur
pursuant tc Article VI, Section 22(b) of the General Convention to which
Malaysia has been a party since 28th October 1957 without making any
reservation. The Written Statement of the UN at paragraph 17 further
stated that 'The Secretary-General issued a note verbale on 7th March
1997 informingthe Govemment of Malaysia that he had detem1inedthat
"the words which constitute the basis of plaintiffs' complaînt in this case
were spoken by the SpecialRapporteur in the course of his mission" and
that the Secretary-General "therefore maintains that Date' Param
Cumaraswamy is immunefrom legal process with respect thereto".'.
3.3 Wrthregardto the tacts, Malaysiawishestc drawthe attention of the Court
ta the difficulty that the suit filed against theecial Rapporteur has
4 placed on the shoulders of the Government of Malaysia. The
Government could not possibly intercede as it is not the Legal Adviser ta
the plaintiff. Neither coulditintercede on behalf of the Special Rapporteur
as he is not the agent of the Government of Malaysia. The action of the
Special Rapporteur himself in filing an application with the High Court of
Kuala Lumpur for leave to enter a conditional appearance had the effect
of "converting" the matter into an interlocutory jurisdictional issue.
3.4 References made in the Written Statement of Malaysia to judicial
decisions (at pages 60-61) relate ta the question of sovereign or state
immunity. Those judicial decisions were mentioned by Mann ta reflect
that a ustate's jurisdiction is limited by rules about sovereign, diplomatie
and ether immunities". 3 However these cases were aise cited to indicate
the practice as tc the manner in which the limitation is applied and in what
manner the jurisdiction is oris not exercised.
3.5 ln the matter placed before the Court at this instance, paragraph 17 of the
Written Statement of the UN above referredto instances where the office
of the Legal Counsel of the United Nations appears ta be "instructing"
competent Malaysian authorities tc promptly advise the Malaysian Courts
of the Special Rapporteurs immunity from legal process. Once the
proceedings had been instituted the question could not have been for the
Government of Malaysia ta instruct the High Court in the first instance to
strike out the plaintiff's pleadings. The Court's attention is drawn again to
the tact that procedure taken for the Govemr:nentof Malaysia to intervene
was through the procedure of filing a certfficate in accordance with
legislation in force namely section 7(1) of the International Organizations
(Privileges and lmmunities) Act 1992 (at page 25 of the Written Statement
of Malaysia).
3 Jurisdiction in International Law by Dr. Michael Akehurst BYIL pg.170973 at
5 C. QUESTION 1
General
4.1 The first part of the question ts considered a legal question since it
concerns the scope of Section 22(b) of the General Convention and
whether that Section has vested the Secretary-General with not only
authority ta determine whether certain words were spoken in the course
of the performance of a mission for the United Nations within the meaning
of thatSection but also that authority is tc be exercised ta the exclusion of
the Member which has ta accord that immunity.
4.2 The Court's attention is drawn again ta paragraph 7.12 of the Written
Statement of Malaysia whereby Malaysia has referred ta the "right" of the
Secretary-General. The motion of exclusivity of determination that is
proposed appears to bestow on the Secretary-General an authority as
though itbecomes a right and for this reason Malaysia does not agree ta
the motion of "exclusivity" in the authority of the Secretary-General as a
result of the interpretation given by the United Nations.
4.3 ln examining the provisions of the Charter of the United Nations various
descriptions have been given of the office and position of the Secretary
General. ln a study relating ta the Secretariat, it is stated that the
fun etions·of the Secretariat can be distinguished from those of the
Secretary-General but "although it is necessary ta differentiate between
the Secretariat and the SG, they nevertheless forma unit.". The duties of
the Secretary-General has been described as being divided into two
categories that is administrative duties which overlap with the Secretariat
4 The Charter of the United Nations, A Commentary: Edited by B.Sîmma at pg. 1022
6 and in addition he performs the so-called political functions (Articles 98
5
and 99 of the Charter of the United Nations) .
4.4 However there are other descriptions. Article 100 of the United Nations
Charter refers to the performance of their duties (i.e. the Secretary
Generaland the staff)andArticle 1 00(2) mentionsthe requirementofeach
Member of the United Nations to respect the exclusively international
character of the responsibilities of the Secretary-Generaf and the staff.
The Commentary on the United Nations Charter states that-
18. General Meaning and Purpose
·-The ideal underlying Art 100 is the creation of a tru/y
international secretariat unencumbered by the influence
of member states. But it was fui/y realized that there
would a/ways be a potential conflict of loyalties~
especially with the state of a staff members nationality.
The impartiality of the SG and of staff members
does not mean that they may not take a stance on
contentious political issues, but simply that they must
not be influenced by national interests. This
precedence of the international outlook has aIso found
expression in the idea that in serving the United
Nations, the international official is at the same time
setving the higher interest of his or her own country.". 6
4.5 Article 101 of the Charter of the United Nations provides that the staff
shallbeappointedby the Secretary-Generalunderregulationsestablished
s
seesupra at p1023
6
supraatpg. 1059
7by the General Assembly. The Commentary on the United Nations
Charter also states-
u2. The organizational powers contained in Art. 101
are a consequence of the dual nature of the Charter.
The Charter is not on/y a treaty under international law
by which the UN was established according tothe will
of the member states in arder to achieve a common ai m.
Apart from the 'functional sector of the Charters there is
also the 'organizational sectors, which constitutes a
binding legal system for the organs of the Organization.
Whereas the functional sector lays dawn the
substantive tasks allocated to the organization and its
staff, the organizational sector contains the ru/es that
determine the organization of the community organ and
the rights and duties of the authorities responsible for
that organ. The Charter authorizes one particular organ
(the GA) to issue staff regulations, thus establishing a
foundation on which the Organization can act
autonomous/y and independently of the member states
in the staff sector.
3. Art. 101 aIso establishes a legal basis for
secondary law, which lays the foundation for the legal
relationship between the Organization and its staff, and
which empowers the SG to issue staff ru/es.
Consequent/y, the SG possesses the authority to act
autonomously in the staff sector. Even in cases where
the Charter does not provide for the establishment of
secondary community law, the SG is entitled toorganize
his interna/ administrative affairs himself. This
'organizational power is vested not only in organization
8itsel but also in the individus/ organs, within their
respective spheres of competence. Provided that this
administrative independence is possible within the
limits set by the structure and the size of the regular
budget, and provided that is has not been restricted by
the GA, there is considerable scope for the SG to use
discretion in implementing the tasks al/ocated to the
Secretariat within the framework of the general
appropriation, in orcier to facilitate the activities of the
organization and its organs. He would be exceeding the
limits of his organizational power on/y if he tried to
abolish the original structure intended by the member
states or to alter the distribution of the balance of the
organs.
4. ln view of the fact that considerable ·legislative
and administrative competences have been
concentrated in one persan, the position of theSG has
developed into that of an organ of central imporlance.
This concentration of power can also be seen from the
fact that the principle of the separation of powers, which
applies in thecase of states, is absent in international
organizations. ln its place, we find a relative balance of
powers that can be construed from the individus/
provisions of the Charter in the context of the secondary
law of the organization. lt is the task of the GA, as the
legislative organ, to ensure that this balance is
maintained and that, in view of the SG's competences,
there is no possibility of his abusing his authority. ln
this context, the member states decide upon the limits
of the delegation of competences laid down in the
Charter, by strategical/y waiving their own
9 rights in the interests of organizational purposes and
7
decentralization. ".
4.6 At page 15 (paragraph 41) of the Written Statement of the UN, it is aIso
submitted that ''the exclusive authority of the Secretary-General is
inextricably linked to 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,"
and in paragraph 39, the United Nations submitted that the authority
granted in Article VI, Section 23 of the General Convention to waive the
immunity of any expert on mission is vested exclusively in the Secretary
General and waiver could not be effected instead by the expert on mission
himself or the national courts of a Member State party to the General
Convention.
4.7 ft has never been suggested by Malaysia that waiver could be made by the
Special Rapporteur or the Minister of Foreign Affairs of Malaysia. On the
co-ntrary, it is stressed that Section 23 addresses not only the right but
aIso the duty tc waive. ft is noted that the Written Statement of the UN
has never addressed this aspect and instead focussed on who has the
right to waive.
Acts performed in an official capacity and those performed in private
capacity
4.8 Paragraph 42 of the Written Statement of the UN cites that the Secretary
General's statement that the distinction between acts pertormed in an
official capacity and those pertormed in a private capacity liesat the heart
of the concept of functional immunfty. While it is not denied that Article
105 could be described as the genesis of the functional immunity and
7 infra at p1077~1079
10 privileges, the General Convention details further the scope of the
privileges and immunities. However Article 105(2) expressly refers to
representatives of the Members of the United Nations and officiais of the
Organization. The position of experts is really only elaborated in the
General Convention. The Court's attention has been drawn to the different
categories of persans entitled ta privileges and immunities but with the
General Convention elaborating different levels of immunities.
4.9 lt is noted that throughout the Written Statement of the UN, the classes of
persans enjoying immunity are referred as staff member, agent of an
organization and expert on mission (paragraph 44). Acts are also
characterised as those perforrned in an "official capacity and performed in
a private capacity" (paragraphs 42 and46). ln the case of Reparation for
Injuries Suffered inthe Services of the United Nations (hereinafter referred
to as ''theReparation case"), the InternationalCourt of Justice madeinter
aüa the following preliminary observations-
"The Court understands the ward "agent" in the most
liberal sense, that istosay, any persan who, whether a
paid officialor not, and whether permanent/y employed
or not, has been charged by an organ of the
Organization with carrying out, or he/ping to carry out,
one of its functions- in short, any persan through whom
it acts".
4.10 The individual opinion of Judge Azevedo also explains another
aspect of the characterisation of classes of persans.
"The different kinds of duties that are performed in the
interest of the Organization are not tully set out in
8 ICJReports 1949at pg. 177
11 Article 100 of the San Francisco Charter, nor yet in
Article 105, which mentions bath officiais and
representatives of Members. This insufficiency was
express/y recognized in the Convention of February 13th,
1946, on Privileges and lmmunities, and in certain
arrangements and agreements concluded with States or
Specia/ized Agencies.
These acts show that there exists a third class -
that of experts, other than officiais, who perform duties
9
on behalf of the Organization. ".
4.11 The aspect ta be considered is whether the use of the term "official" or
"unofficial", "public" or "private" is appropriate to persans whose immunity
is accorded in accordance with Article VI, Section 22(b) of the General
Convention where it relates ta experts "performing missions for the United
Nations". ln Malaysia's view the loose use of such terms interchangeably
suffers from over generalisation of the functions and duties of
representatives of Members, the staff of the United Nations, the officiais
who are experts and experts who are not officiais differ and are varied in
nature under the General Convention.
4.12 Staff Regulations regulatethe relationship between the United Nations and
its staff . Although the regulations indîcate the internai administration
relationship its the regulations that also reflect the obligations of the staff
in the conduct and discharge of the functions. This is reflected in
Regulations 1.4, 1.5 and 1.8which state as follows:
"1.4 Members of the Secretariat shall conduct
themselves at al/ times in a manner bef"ttting their status
9 supra pg. 193-194
12 as international civil servants. They shal/ not engage in
any activity that is incompatible with the proper
discharge oftheir duties with the United Nations. They
shal/ avoid any action and in particular any kind of
public pronouncement that may adverse/y reflect on
their status, or on the integrity, independance and
impartiality that are required by that status. While they
arenot expected to give up their national sentiments or
their politica/ and religious convictions, they shal/ at al/
times bear in mind the reserve and tact incumbent upon
them by resson of their international status.
·1.5 Staff members shall exercise the utmost
discretion in regard to al/ matters of official business.
They shal/ not communicate to any persan any
information known to them by resson of their official
position that has not been made public,. except in the
course of their duties or by authorization of the
Secretary-Genera/. Nor shal/ they at any time use such
information to private advantage. These obligations do
not cesse upon separation from the Secretariat
1.6
1.7
1.8 The immunities and privileges attached to the
United Nations by virtue of Article 105 of the Charter are
conferred in the interests of the Organization. These
privileges and immunities fumish no excuse to the staff
members who enjoy them for non-perlormance of their
private obligations or fai/ure to observe laws and police
13 regulations. ln any case where these privileges and
immunities aris eh~ staff member sha/1 immediate/y
report to the Secretary-General, with whom a/one it rests
10
to decide whether they sha/1be waived. ".
4.13 Experts are not staff and if the performance of their mission is ta be
gauged by their promotional and publicity of their mandate, and the
interpretation rendered by the United Nations and the Republic of Costa
Rica in respect of the mandate and Section 22(b) is accepted, it would
appear tc accord the expert immunity in respect of anything and
everything uttered or stated anywhere, everywhere and anytime which in
ether words means limitless immunity. (This obseJVation is made
specifically in relation to paragrap11 - 16 of the Written Statement of
the UN). lt appears that for as long as in form there is publicity, the
substance of contents are ta be disregarded even if thepublicity is done
indiscriminately. The publication inthe International Commerdal Litigation
is notthe press re/easeof the United Nations which at least represents the
officiallletin of the United Nations. The bulletin at !east represents fair
reporting where a Member State if singled out couIdstiJloffer explanations.
10
ST/SG 6/1998/8
14 O. REASONSADVANCEDINSUPPORTOFTHE
'EXCLUSIVE' AUTHORITY TO ASSERT
IMMUNITY UNDER SECTION 22{b)
(IN THE WRITTEN STATEMENT OF THE UN)
5. (a) Resolutions of the General Assembly
5.1 There are severa! references to the resolutions of the General Assembly,
subsequent practice and statements before Committees by the Legal
Counsel of the United Nations to reflect the interpretation that has been
rendered to various provisions of the General Convention relating ta
immunities and privileges. Certain views relating to the statusof the
recommendations of the General Assembly have been referred to and are
appended herewith as Annex 1.
5.2 ln the Voting Procedure on Questions Relating To Reports and Petitions
Concerning the Territoryof South-West Africa case, Judge Lauterpacht
said-
"Aithough decisions of the General Assembly are
endowed with full legal effect in sorne spheres of the
activity of the United Nations and with limited legal
effect in other spheres, if may bsaid, by way of abroad
generalisation, that they are not legal/y binding upon the
Members of the United Nations. ln sorne matters • such
as the election of the Secretary-General, election of
members of the Economie and Social Council and of
sorne members of the Trusteeship Council, the adoption
of ru/es of procedure, admission to, suspension from
and termination of membership, and approval of the
budget and the apportionment of expenses - the full
legal effects of the Resolutions of the General Assembly
15 are undeniable. But in general, they are in the nature of
recommendations and it is in the nature of
recommendations that a/though on proper occasions
they provide a legal authorization for Members
determined to actupon them individuatly or collective/y,
they do not create a legal obligation to comply with
them•.... Now "resolutions" cover two distinct matters:
They cover occasiona//y decisions which have a definite
binding effect either in relation to Members of the United
Nations or itsorgans or bath, or the United Nations as
a whole. But normal/y they refer to recommendations,
properly so ca/led, whose legal effect, although not
a/ways a/together absent, is more limited and
approaching what, when taken in isolation, appears to
be no more than a moral obligation.". 11
5.3 lnthat case Judge Lauterpacht was considering the recommendation of
the General Assembly in relation ta the administration of trust territories
and the obligation of the Administering Authority ta administer Trust
Territories. ln the context of the case there was no obligation on the part
of the Administerîng Authority tc give effect to a recommandation of the
General Assembly to adopt or depart from a particular course of legislation
or any particular administrative measure. He went on however ta state:
uRecommendations in the sphere of trusteeship have
been made by the General Assembly frequent/y and as
a matter of course. To suggest that any such particular
recommendation is binding in the sense that there is a
legal obligation toput it into effect is to run counter not
only to the paramount rule that the General Assembly
Il ICJ Reports 1955 at pg. 115-116
16 has no legal power to legislate or bind its Members· by .
way of recommendations, but, for ressons stated, aIso
to cogent considerations of good government and
12
administration.".
5.4 The International Court of Justice, in its 1996 Advisory Oginion on
the Legality of the Threat or Use of Nuclear Weapons with
reference to the series of General Assembly resolutions since
1967 that affirm the illegality of nuclear weapons stated:
nGA resolutions, even if they are not binding, may
sometimes have normative value. They can, in certain
circumstances, provide evidence important for
establishing the existence of arule or the emergence of
an opinio juris. To establish whether this is true of a
given GA resolution, it is necessary to look at its
content and the conditions of its adoption; it is a/so
necessary to see whether an opiniojuris exists as to its
normative character. Or a series of resolutions may
show that the graduai evolution of the opinio juris
required for the establishment of a new rule.". 13
5.5 Sir Gerald Fitzmaurice 14had also summarized Judge Lauterpacht's views
as follows:
11. Except where this is specifically provided for in
the Charter, or inherent in the nature of the case (e.g.
12 Supra atpg.116
13 "Reproduced by P. Malanczu~Akehur sodem Introduction to International
Law" 7ted., pg.52
14
The Law and Procedure of the International Court of 715-716 at pg.
17the Assembly gives directionsto one of its own
subsidiary organs, decides to meet for its next session
elsewhere than in NewYofk,decides to set ua new
main committee, &c.), Assfmblyresolutionhave no
binding force or character for Member States.
2. Resolutions of the Assembly in so far as they
request, invite, cali f~r,even enjoin, action by
Member States, are baJical/y in the nature of
recommendations, and havJnohigher legal forceThe
element of decision in sJ-calle'decisions'of the
Assembly relates to the act hf the Assembly in deciding
to adopt the resolutiontbrframe it ancertain way,
notto the substanticon Œfthfresolutioas being
obligatory for Member States.
3. The absence of direc'tly binding character does
not deprive Assemb/y resolhtions of al/legal effect, or
reduce themto the status of mere vŒux or expressions
of opinion. Member States, by reason of their
membership and of their geheral duty of co-operation,
are bound togive the resblutionsof the Assemb/y
serious consideratiogood faith, and to examine them
with a viewto seeing ithey can be caniedout. The
discretionpossessed by Member States not to give
1
effectto them is not aun~ette oneed lt exists, but
must not be exercised arbitnirily, and must be employed
on/y for what the State concbmed bona fide believes to
be good cause, as to whic~m ust be willing, if ca/led
upon, togive a reasoned exblanation.
18 4. ln addition, the highest international interest,
which Members of the United Nations are under a legal
duty at /east to take into account, demands that they
shou/d give serious consideration tothe resolutions of
the Assembly, since these constitute an embodiment of
the general views and wishes of the world community.
5. Repeated failures or refusais to act in accorda nee
witha series of resolutions addressed to the same State
or States, and to the same effect may have a cumulative
effect in the sense that although creating no higher
direct obligation, they may put in issue the good faith of
any such State, or deprive it of advantages, such as the
benefit of the doubt, which it might othetwise claim to
receive, or shift on to its shou/ders the burden of
proof.".
5.6 Resolution36/232 of 18 December1981 and etherResolutions have been
referred tc in paragraph 43 of the Written Statement of the UN. ln
paragraph 43, it is concluded that "The General Assembly has thus
confirmed the exclusive authority..". Resolution 36/23inter alitook
noteofthe Report oftheSecretary~Ge Pararraph.3(b)ofthe Report
which states that 'the term "staff members" should caver officiais,
expertson mission,locallyrecruitedemployeesand in general, ali persans
performing functionsor services for the United Nations system, is over
generalised'. The acceptanee of such term is either for administrative
convenienceor politicalexpediency. But it is contrary to the provisions of
the General Convention and if there is an intention to facilitate such
excessivenessto the extent that the provisionsof the General Convention
are tcbe revised then it should be properly done in the framework of
concluding a fresh treaty. lt is noted however that the term used in the
Report is "should".
195.7 The Resolutions referred have certainly repeated certain aspects as
follows:
(a) reaffirming the responsibility and the authority and [Dossier 109]
recallingthat underArticle 100 of the Charter each Member of the
United Nations undertakes ta respect the exclusively international
character of the responsibilities of the Secretary-General and the
staff;
(b) calling upontheSecretary-Generalta certain matters including inter
aliato continuepersonallyta act asthe focal point in promoting and
ensuring the observance of privileges and immunities at'officiais;
(c) refers to arrests, detentions and ether possible matters relating ta
the security and proper functioning of officiais;
(d) refersta a body of principlesfor the protection of ali persans under
any form of detention or imprisonment; and
(e) reiteratingthe obligation of the staff inthe conduct of their duties ta
observe tully the laws and regulations of Member States.
5.8 Having regard ta the varied nature of the contents of the Resolutions,
Malaysia is of the view that those resolutions do not reflect an emerging
rule. Attached herewithis a general analysis_ofthe various dossier which
revealed internai advice of the practices of the United Nations, the
contents of the resolution which do not reflect an emerging rule for the
varied nature of situation that had been dea tt(Annex Il)
20 (b) Subsequent Practice
' 5.9 The principle of subsequent practice and the reference -to Articles 31
paragraph 3(b) of the Vienna Convention on the Law of Treaties and the
1986 Convention on the Lawof Treaties between States and International
Organizations or betvveenInternational Organizations has been referred
to in the Written Statement of UN (paragraph 45).
5.10 On the point of subsequent practice the Court has opined:
''Interpretations p/aced upon legal instruments by the
parties to them, though not conclusive as to their
meaning, have considerable probative value when they
contain recognition by a party of its own obligations
under an instrument". 15
5.11 The principle is further reviewed by Sir Gerald Fitzmaurice as follows:
1the way in which the parties have aètually conducted
themse/ves in relation to the treaty affords legitimate
evidence as to its conect interpretation. tt is, of course,
axiomatic that the conduct in question must have been
that of both or ali· or, in the case of general multilateral
conventions, of the great majority of the parties, and not
mere/y of one. But given that, conduct usually forms a
more re/iab/e guide to intention and purpose than
anything to be found for instance in the preparatory
work of the treaty, simply because it has taken concrete
and active, and not mere/y verbal or paper, form. The
uncertainties that so frequent/y attend on the latter case
15
ICJ Reports 1950 at pg. 135
21 are more like/y to be absent in the former, for in the
course of preparatory work the parties mere/y state
what their intentions are: in their practice subsequent to
the conclusion of the treaty they act upon them. ln any
event they act, and a consistentpractice must come vel')f
near to being conclusive as to how the treaty should be
16
interpreted. ".
5.12 /t has been elaborated further that the principle of subsequent practice -
"like the principle of effectiveness, be regarded as
being, in general, subordinate to the principle of the
textua/ and natural meaning - that is to say, prima facie,
it may serve to confirm that meaning if clear, or may
afford an extraneous means of e/ucidating it, if obscure
·or ambiguous; but not to change or add to it if no
obscurity or ambiguity exits and the sense is clear
according to the natura/ and ordinal')f meaning.
Subsequent practice is (on this basis) primarily one of
the extraneous means (like recourse to travaux
prèparatoires, or consideration of the circumstances
existing previous ta or when the treaty was drawn up) of
interpreting a text not clear in itself; and, considered as
such, it is chief/y its superior re/iabilias an indication
of the real meaning and effect of a text that justifies its
treatment as an independant major principle of
interpretation. Yet it is difficult to deny that the
meaning of a treaty, or of some part of it (particu/arly in
the case of certain kinds of treaties and conventions),
may undergo a pro cess of change or development in the
16 Sir Gerald FitzmauriccitNote 13 pg.357
22 course of time. Where this occurs, it is the practice of
the parties in relation to the treaty that effects, and
indeed is, that change or development. ln that sense
there is no doubt about the standing of the principle, as
an independant princip le, which, in aproper case, it may
be not on/y Jegitimate but necessary ta make use of; for
what is here in question is not so much the meaning of
an existing text, as a revision of it, but a revision brought
about by practice or conduct, rather than effected by
and recorded in writing. That agreement can result
from conduct, in the international as weil as in the
domestic field, admits of little doubt (as to various
aspects of this, see below, Division B, § 1, subsections
(1)(a) and (2)(b). As regards an agreed revision or
amendment of treaty terms, if, as already stated, it is, in
the language of. the Court, the dufy of a tribunal 'to
interpret treaties, not to revise them', it is equal/y the
dufy of a tribunal to interpret them as revised, and to
give effect to any revision arrived at by the patties. ln
the last analysis, it seems to be a matter chief/y of the
nature and weight of the evidence required to estab/ish
the existence of such a revision, whether it results from
writing or from practice. 1".
5.13 If the rule of subsequent practice is applied on the basis of conduct of
Member States, the rule of conduct is not a legal rule until it has been
recognisedby MemberStates. Referencesare made in severa! dossiers
cited in the Written Statement of the UN to reflect statements or
resolutions intending to show how different practice has been applied. lt
aise shows that while the United Nations advise ta assert its practice in
17 Sir Gerald Fitzmaurice op. cit. Note 13 at pg. 358-359
23 arder ta reflect its understanding of the provisions of the Convention,
correspondingly, the continued mention of states said to be not observing
their obligation also seems to point ta the non-establishment of a legal
rule especially with regard to the question of exclusive determination by
the Secretary-General.
5.14 Malaysia is not a signatory to the Vienna Convention on the Law of
Treaties between States and International Organization or between
International Organizations 1986. ln addition, it is aIsorelevant to recall
Article 4 of the Vienna Convention on the Law of Treaties on non
retroactivityf the Conventionwîthout prejudiceto the application of rules
set forth in the Convention to which treaties would be subject under
international law. The status of the Convention is suchthat only sorne of
rtsprovisions attest ta existing customary lawor which have given rise ta
rules belonging to the corpus of general law. Article 31, paragraph 3(b) of
bath Conventions afforda ruleof constructionwith regardsto subsequent
practices relied uponby the United Nationsas cited inthe dossiers ta the
Written Statementofthe UN. Malaysia'sconclusion ontheir affect are as
stated above in para 5.13.
(c) Waiver of lmmunity
5.15 The existence of a waiver of immunity indicates that the immunity is
qualified. At paragraph 50 of the Written Statement of the UN it is stated
that "in the present case,the Secretary-Generalat no point waived, or for
that matterwas ever requestedto waive, the immunity from legal process
of the Special Rapporteur". Two observations could arise from this
statement, namely at which point should the waiver be made if the
Secretary-Gen_erails authorisedta make an exclusive determination. The
right and duty of the Secretary-General have not been sufficiently
elaborated and havebeen instead limitedta the difficulty, unŒrtainty and
ambiguity of categorising acts as official, non official, public or private
24 depending on the categories of persans in respect of whom the îmmunity
is claimed. The second aspect is through the request for waiver. ln this
particular instance it was not for Malaysia ta request for that waiver since
the Special Rapporteur concerned is not an agent nor a diplomatie
representative of Malaysia. ls it then for the party to request for the
waiver oris the municipal court expected to request for the waiver? Again,
it is necessary to the recall that entering a conditional appearance in
aocordance with the rule ofthe High Court in Malaysia does not constitute
waiver of immunity. There was never an indication of a possibility of
waiver sinceiwas asserted from the outset that the determination of the
question of immunity was exclusive in nature.
5.16 On the right and duty of a waiver of immunity the following comments are
also referred to:
"lmmunity is given to protect international officiais from
prosecution but it does not exempt them from local law.
Apart from their legal relationship with the organization,
international officiaisre bound ta the rules regulating
society in the same way as ali ether citizens. The
im~ossibi of briyging them before a national court
may impede the application of the law and should
therefore be restricted as muchas possible. lmmunity
should be invoked only when the interests of the
organization so require. If an international civil servant
violates the law by an act for which he enjoys immunity,
the state in question may ask for a waiver of immunity.
This will often be granted. lt is in the interest of the
secretariat that violations of local laws be adjudicated
25 wheneverthis would not prejudice the functioning of the
18
organization." .
5.17 Wrth regardta the opinionthat has ta beformed by the Secretary-General
on the question of waiver ofimmunity of persans on mission for the United
Nations, the question of exercising it without prejudice to the interests of
the United Nations should also lake into account the international
responsibility of such persans in performing these tasks. Such persans
are not above the law. ln this case it could have been drawn to the
attention of the Secretary-General that not ta exercise waiver has an
implication that would involve possible violation of the following: namely,
Articles 7 and 8 ofthe UniversalDeclarationof Human Rights and Articles
2 and 3 of the International Covenant on Civil and Political Rights.
(d) Section 22(b) .. Performance of a Mission:
Section 23 - lmmunities granted in the interests of the United
Nations and not for persona! benefit
5.18 ln consideringthe above matters Mazilu's case needsto be revisited. The
Written Statement of Malaysia at page 43 had referred to the opinion of
Judge Oda where he stated, inter aliathat the Court had observed in
11
general terms that Rapporteurs and Special Rapporteurs enjoy in
accordance with Section 22 the privileges and immunities necessary for
the exerciseof their functionsand in particularfor the establishment of any
context which may be useful for the preparation, the drafting and the
presentation oftheir reportsto the Sub-Commission.". The interpretation
given bythe Government of the Republic of Costa Rica puts any Special
Rapporteur in an unassailable position.
!8 H.G. Schermers & Blokker, International Institutional Law, Unity Within
Diversity at pg. 3
265.19 The Court in Mazilu's case has stated that as a necessary part of the
exercise of their functions, the Special Rapporteur prepares drafts and
presents reports ta the Sub-Commission. The term "performance of a
mission" has been so broad that there are aspects of its performance
which elucidates the uncertainties of the application of the terms "official"
or "unofficial", "private or public'' and as has been mentioned earlier the
terms appear tc have been assimilated inter changeable in the
characterization of funetions.
5.20 There are certain aspects that could arise in the performance of a mission.
On the municipal leve! aState is responsiblefor the conduct of its officiais
though while done for a public purpose may yet make aState liable in the
sense of a vicarious liabiJity. Similarly, if an official in the course of his
public duty conducts himself in a manner which shows that he has
benefited from itpersonally, as in charges of corruption, the use of his
public office for a persona! benefrt would render him Hableand in general
would in fact be a breach of his code of office rendering liable to
disciplinary proceedings as is the case in Malaysia.
5.21 The abject of granting immunity under section 22(b) is that it is granted ta
the expert in the interests of the United Nations and not for the persona!
benefit ofthe îndividuals(that is,ht;texperts). At paragraph 7.15 Malaysia
had stated that the purpose of the Special Rapporteur's mission has ta
have a nexus ta be established with his mandate and the question here is
who is to determine and how is it ta be determined. ln the nature of
reporting it is not denied that it would include words spoken or written.
275.22 Paragraph 55 (page 21 of the Written Statement of the UN) contains the
following:
"ln the absence of complete independence, human right
experts and Special Rapporteurs would hesitate to
speak out against and report violations of international
human rights standards. For example, in his third report
the Special Rapporteur indicated that, in the light of the
civil suits pending against him in the Malaysian Courts,
hé had decided to postpone reporting to the
Commission on Human Rights on his findings on the
initial complaints about the Malaysian judiciary referred
to in his second report. National adjudication would
inevitably frustrate and, if allowed to proliferate, it
would potentially endanger the entire human rights
mechanism of the United Nations system. (Dossier No.
11, paragraph 134).".
5.23 The above is referred ta illustrate a point in relation tc the performance of
the mission. lt is very strange that while the proceedings are being filed
against the Special Rapporteur in its interlocutory stage, the Rapporteur
should deny himself his privilege of putting before the body to which he
wouId make reports, materiels which are supposed ta be relevant to the
performance of his mission. ln a sense submitting reports to organ of the
United Nations which has granted him the mandate would be proper, and
the official publication that follow therefrom wouId be the accomplishment
of the varieus tasks that have been mandated ta him. Preparing reports
and putting itup before a forum in an international organization is not
unusual as in the forum of the Commonwealth Law Ministers. An item has
also been identified in relation to the independance of the judiciary in the
28 context of the Commonwealth Secretariat in recognizing growing concern
relating to the practiceof States. (Annex Ill)
5.24 The publication of the feature article which has resulted in civil
proceedings being instituted against the Special Rapporteur is illustrative
of the fact that such modes of publicising materials to be compiled for
reports may not necessarily be in the interests of the United Nations. The
feature article taken out of context of the United Nations reports may
become misrepresentations or misconstrued by members of the public.
But it is hopedthat the mechanism established by the United Nations does
not become a "cloak and dagger situation tc advance persona! interests".
Misuse of mandate has already been indicated in Dossier No. 104.
5.25 The circumstances under which a Special Rapporteur makes public his
position as Special Rapporteur and his conduct could be appraised tc
ascertain whether at the time the words were uttered they were for the
perfonnance of his mission. Simply put are words which give States "bad
publicity" or put persans to mistrust a judicial system part of the abjects
and purposes of the performance of the mandate.
5.26 The Special Rapporteur is a member of the legal profession in Malaysia
who is supposedly knowledgeable and would be capable of making his
evaluation in keeping with the codes of ethics of his profession. Seing a
member of the legal profession he must be taken tc have been made
aware of the "Basic Principles on the Roles of Lawyers" as weil as the
"Basic Principles on the lndependence of the Judiciary". The feature
article identified past and present members of the Malaysian Bar Council
(that is the Malaysian associationof practising lawyers), names of judges
and politicians. lt is not known what affecithas in the minds of the public
inthe United Kingdom. But to a Malaysian lawyer it bears a semblance of
a meeting of members of the Malaysian legal profession "airing their
29 grievances". The Jackof restraint is remarkable unless it is the immunity
of the Special Rapporteur which is used as a "cloak".
5.27 This particular case illustrates the difficulty that has been brought about
in the generality of the use of the term "official" but it also illustrates that
the mechanism of the United Nations reporting system should not be
perpetuated for persona! interests. lt is ta the interests of the United
Nations tao that where the State has to observe the provisions of the
General Convention in the sense that it has tc accord immunity, it should
also be in a position not tc be precluded to have an evaluation that the
performance of a mission is for the purposes of the United Nations. For
thispurpose Malaysiawould referto the simplestatement in relationta the
interpretation of treaties as described at page 51 of Sir Gerald
Fitzmauricetreatise wherein he stated, "Powers orfunctions provided
in a treaty for the performance of the parties mutually cannot be
applied or utilised for the benefit of one or sorne of them only, and
against other or others, even if it is the default of the latter that has
19
led to those powers or funetions if invoked.". Although it is a
subsidiary interpretative finding which needs ta be examined with care
nevertheless it is a rule which could be considered and ta ascertain
whether on the facts there are semblanees for its application.
19
Sir Gerald Fitzmaurice op. cit. Note 14
30 E. QUESTION OF INTERPRETATION
6.1 At paragraph 9.1 of the Written Statement of Malaysia, reference had been
made ta the Court's opinion that in interpreting the provisions of a treaty
the duty of a tribunal called upon to interpret and apply the provisions of
the treaty is ta endeavour ta give effect ta them in their natural and
ordinary meaning in the context in which they appear. ln paragraph 40 of
the Written Statement of the UN reference has been made ta the
Reparation's case where reference was made to the observations of the
Court as follows, that is, "Upon examination of the character of the
functions entrusted to the Organization and of the nature of the mission
and its agents, it becomes clear that the capacity of the Organization ta
exercise a measure of functional protection of its agents arises by
necessary intendment out of the Charter'' (italics underlined for emphasis).
The Written Statement of the UN then went on ta reiterate that pursuant
ta the General Convention and the Charter, it is for the Secretary-General,
on behalf.of the Organization, ta afford experts on mission the functional
protection they are entitled ta when they are acting in the course of their
performance of their United Nations missions.
6.2 The question before the Court is not just a general question of the
interpretation of Article 100 or the general interpretation of Article 105 of
the Charter of the United Nations. The advisory opinion sought by the
Commission also concerns the effect or the relationship of the provisions
of Articles 100 and 105 which are read with Sections 22(b) and 23 of the
General Convention.
6.3 The General Convention refers ta the right and duty of waiver while what
is asked of the Court is whether, in the same provision, there is an
authority vested in the Secretary-General ta exclusively determine the
existence of such immunity to the extent that it becomes conclusive and
31that the determination is to prevail. As a general observation it is to be
noted that the Reparation'scase renders an interpretation which attributes
ta the Organization the capacity ta exercise a measure of functional
protection. n the Written Statement of Malaysia reference has been made
ta the use of the words "the right of the Secretary-General". The Secretary
General's determination manifests a dual nature, one in relation to the
Organization and the ether in relation toits administrative responsibility.
Article100 of the Charter of the United Nations refers ta the exclusively
inter:nationalcharacter of the responsibility of the Secretary-General in the
sense that its underlying basis would be that the office of the Secretary
Generalwould be unencumbered by the influence of Member States and
thatthe Secretary-General himself is an international civil servant whase
privileges and immunities are accorded on the same level as that of the
privileges and immunities of diplomats. The General Convention vests the
Secretary-General with certain authority and the question here is whether
he hasthe authority ta the extent that it becomes binding and conclusive
on a State ta accept his determination, and in the case before the Court
it isota determination under any ether section but that of Section 22(b)
of the General Convention. This therefore requires a specifie
interpretation to be given to Section 22(b) as the United Nations has
inextricably linkedtto Malaysia's obligation underthe General Convention
as a Member State and certain legal consequences will therefore flow
therefrom. ln the view of Malaysia there appears ta be an interpretation
given that the position of the Secretary-General in his administrative and
in his organizational functions have been diffused into one so as tc vest
in him an authority to the extent of a right which would appear tc preclude
a Member State in making a determination under Section 22(b) which is
borne out by the Statement of the Republic of Costa Rica {at pages 18 to
20). ln the view of Malaysia it is one thing to say that by necessary
intendment that the United Nations itself, as a juridical personality, has a
functional capacity to afford protection to staff, officiais or agents in
32 general, but it is quite another to say that by necessary intendment, the
United Nationscan exceed the provisions ofthe General Convention. The
proposition that is advanced here seems to be that by necessary
intendmentand basedon the functional immunity approach, the Secretary
General is now endowed with an executive authority which is to prevail
upon the executive authority of Member States in making an exclusive
determination, where in certain instances it could be tantamount to a
Member State being obliged to accord persans total immunity or absolute
immunity as compared to the official immunity.
6.4 The Written Statements of Member States have reflected varying
positions. ln the vîew of the Government of the Federal Republic of
Germany the Secretary-General has, pursuant to Article VI, Section 22 of
the General Convention, a "prerogative" . The Written Statement of
Sweden expresses that the Head of the Organization hasan exclusive
right to detennine whether the immunity of an expert shall be waived and
it also refers ta the right to determine whether an expertotected by
immunity which it says has been solely ane~clusi coeflred to the
Secretary-General a decision being also considered ta be conclusive.
6.5 The Statement of the Government of the United Kingdom states that it
considers it to be essential that due weight is given to such views by
the national courts", that is, in reference to a question arising whether or
not an individual is entitled ta immunity under Section 22 in a particular
case, the views expressed by the Secretary-General are also described
as crucial. The Statement of the United Kingdom also added that the
United Kingdom would not expect a national court to take a different view
from the Secretary-General except for "the most compelling reasons".
6.6 The Statement of the United States of America is found in paragraph 22
which includes, inter a/ia, the opinth~ te views of the Head of the
331 ---
Organization should be accorded great deference. lt aise suggests that
when a criteria for deciding immunities are not precisely articulated, as in
the case for official acts, the views of the Organization are partly important
and persuasive. The Statement went on tc describe that the Head of the
Organisation may be uniquely qualified but the Statement went on tc
describe that in the United States legal system while the views of the
Secretary-General are not accorded automatic conclusive effects those
views are entitled ta receive great weight. At page 16 of the Statement it
is also stated that where the Secretary-General provides a certffication in
support of immunity, that may provide grounds for a presumption in faveur
of immunity rebuttable only if there is powerful contrary evidence.
6.7 ln examining this matter itis necessary to address references made to the
Reparation's case with regardto the opinion of the Court in interpreting the
provisions of Articles 100 and 105. The question is whether such an
interpretation could be applied in an analogous manner ta construe that
sinee the Secretary-General has a right and duty tc waive where it is
understood that the right is his alone and not any ether organ and not that
of a Member, it is therefore tc be implied that by necessary intendment he
is vested also with the authority which is equally conclusive tc the extent
that it prevails upon Member States ta implement that determination in ali
circumstances.
6.8 Judge Schwebel has expressed that ''the breadth of the Court's
20
construction of Article 100 (of the Charter) is instructive" • The Written
Statement of Malaysia at pagE:!67 had referred ta the futuristic views of
Jenks that "the diffrcu/ty that, by reason of the right of a national court to
assume jurisdiction over private acts without a waiver of immunity, the
20 Justice in International Law Selected Writings of Judge StepM.nSchwebel
at pg. 260.
34determination of the official or private character of a particular act may
pass from international to national control therefore remains. While cases
in which there is any room for controversy in the matter may be rare, they
may, when they occur, be important". In this respect, the decision of the
Court in the Reparation's case is equally instructive in respect of the
individual opinions of Judge Hackworth and Judge Badawi in relation ta
the provisions not only of Article 100 but also Article 105 of the Charter.
Judge Hackworth had, inter alia, referred ta the majority opinion that-
·••.•. the Charter does not expressly provide that the
Organization should have ·capacity to include, in "its
claim for reparation", damage caused to the victim orto
persans entitled through him, but the conclusion is
reached that such power is conferred by necessary
impli,cation. This appears to be based on the
assumption that, to ensure the efficient and independant
performance of missions entrusted to agents of the
Organization, and to afford them moral support, the
exercise of this power is necessary.
The conclusion that power in the Organization to
sponsor private claims is conferred by "necessary
implication" is not believed to be warranted under rules
laid down by tribunals for filling lacunae in specifie
grants. of power.
There can be no gainsaying the fact that the
Organization is one of delegated and enumerated
powers. lt is to be presumed that such powers as the
Member States· desired to confer upon it are stated
either in the Charter or in complementary agreements
35concluded by them. Powers not expressed cannot
freely be impJied. lmplied powers flow from a grant of
expressed powers, and are limited to those that are
"necessary" to the exercise ·of powers expressly
granted. No necessity for the exercise of the power
here in question has been shown to exist. There is no
impelling reason, if any at ali, why the Organization
should become the sponsor of claims on behalf of its
employees, even though limited to those arising while
the employee is in fine of duty. These employees are
stiJl nationals of their respective countries, and the
customary methods of handling such claims are still
available in full vigour ..•. The exercise of an additional
extraordinary power in the field of private claims has not
been shown to be necessary to the efficient
performance of duty by either the Organization or its
agents.
But we are presented with an analogy between the
relationship of a State to its nationals and the
relationship of the Organization to its employees; also
an analogy between functions of a State in the
protection of its nationals and functions of the
Organization in the protection of its employees.
The results of this liberality of judicial
construction transcend, by far, anything to be fou nd in
the Charter of the United Nations, as weil as any known
purpose entertained by the drafters of the Charter.
36 These supposed analogies, even assuming that
they may have sorne semblance of reality, which 1do
not admit, cannet avail to give jurisdiction, where
jurisdiction is otherwise lacking. Capacity of the
Organization to act in the field here in question must
rest upon a more solid foundation.
The Court advances the strange argument that if
the employee had to reJy on the protection of his own
State, his independence might weil be compromised,
contrary to the intention of Article 100 of the Charter.
This would seem to be placing a rather low
estimate upon the employee's sense of fideJity. But Jet
us explore this a step further.
Article 1DO provides that:
"1. ln the performance of their duties,
the Secretary-General and the staff shall not
seek or receive instructions from any
govemment or from any other authority extemal
to the Organization. They shall refrain from any
action which might reflect on their position as
international officiais responsible only to the
Organization.
2. Each Member of the United Nations
undertakes to respect the exclusively
international character of the responsibilities of
the Secretary-General and the staff and not to
37 seek to influence them in the discharge of their
responsibi lities."
This is a classical provision. lt is found in this
identical, or a slightly modified, form in each of the
agreements establishing the various Specialized Agencies
sorne concluded before, and sorne subsequent to, the signing
of the Charter.
For example, we find in Article 59 of the
Convention on International Civil Aviation, signed in 1944,the
following provision:
"The President of the Council, the
Secretary-General and ether personnel
shall not seek or receive instructions in
regard to the discharge of their
responsibilities from any authority
external to the Organization. Each
contracting State undertakes fully to
respect the international character of the
responsibilities of the personnel and not
to seek to influence any of its nationals in
the discharge of their responsibilities."
(Yearbook of the United Nations, 1946-
1947, pp. 728, 736.)
Article Xli of the articles of agreement of
the International Monetary Fund,
negotiated in 1944, provides in Section 4
(c):
38 "The Managing Director and the staff
of the Fund, in the discharge of their
functions, shall owe their duty entirely to
the Fund and to no other authority. Each
member of the Fund shall respect the
international character of this duty and
shall refrain from ali attempts to influence
any of the staff in the discharge of his
functions." (Il, United Nations Treaty
Series, 1947, pp. 40, 86.)
Article V of the contemporary agreement relating
to the International Bank for Reconstruction and
Development is practically identical with the provisions
just quoted. {ibid., pp. 134, 166..)
Article 9, paragraphs 4 and 5, of the Constitution
of the International Labour Organization, as amended,
provides:
"4. The responsibilities of the Director.
General and the staff shall be exclusively
international in character. ln the performance of
their duties, the Director·General and the staff
shall not seek or receive instructions from any
govemment or from any other authority external
to the Organization. They shall refrain from any
action which might reflect on their position as
international officiais responsible only to the
Organization.
39~~-
i
5. Each Member of the Organization
undertakes to respect the exclusively
international character of the responsibilities of
the Director-General and the staff and not to
seek to influence them in the discharge of their
responsibilities." (Yearbook of the United
Nations, 1946-1947, pp. 670, 672.)
To the same effect see:
Article VIII of the Food and Agriculture
Organization of the United Nations (ibid., pp. 693, 695);
Article VI of the Constitution of the United Nations
Educational, Scientific and Cultural Organization (ibid.,
pp. 712, 715); Article 37 of the Constitution of the World
Health Organization (ibid., pp. 793, 797); and Article 9 of
the Constitution of the International Refugee
Organization (ibid., pp. 810, 813).
ls it to be ·supposed that each of the
Organizations has the capacity to make diplomatie
claims in behalf of its agents, and that this shoutd be
done in order that their fidelity to the Organization and
their independance may not be compromised?
Reasons for such a conclusion would seem to have as
great force here as in the case of the United Nations.
The language employed in the respective instruments
bears the same meaning.
Article 100 of the Charter, which, it should be
remarked, relates only to the Secretary-General and the
40 staff, cannot be drawn upon to claim for the
Organization by indirection an authority which
obviously cannot be claimed under any direct
authorization. The most charitable, and indeed the
most realistic construction to be given the article is that
it is designed t9 place service with the United Nations
on a high plane of loyalty and fidelity and to require
Member States to respect this status and not to seek to
influence the Secretary-General or members of the staff
21
in the discharge of the ir duties."
6.9 Equally instructive is the Dissenting Opinion of Judge Badawi Pasha in
the same case especially in relation to the proposition advanced in the
Written Statement of the UN that the functional protection to be
"supervised by the Secretary-General confers 'on him an authority to
make an exclusive determination on the question of immunity under
Section 23 of the General Convention". The parts of his opinion which
may be relevant are as follows:
'8oth the written statements of the governments
(except that of the United States Government) and the
statements made in Court recognized that the United
Nations had the right to bring an international claim in
respect of the damage referred to under {b), and they
endeavoured to give reasons for this. Each
representative had his own argument.
21
ICJ Reports 1949 at pg. 198-201
41
1
1 They founded this right on one or more of the
following grounds:
{1) The analogy between the position of
the United Nations and that of States, because
the general principles underlying the position of
States would be equally applicable to the United
Nations.
{2) Creation of anew situation, owing to
the development of international organization; in
this situation, the international community
requires that a step forward should be taken
towards the protection of its agents.
(3) The rule that the reparation of
damage suffered by the victim would habitually
and principally be the measure of reparation due
to the State, and consequently to the United
Nations.
(4) Weakening of the bond of national
allegiance implied in Article 100 of the Charter
on the one hand, and by considerations of
expediency on the other hand, there being no
national protection for stateless persans,
refugees and displaced persans, or such
protection being illusory if, for any reason, the
national State does not endeavour to exercise it .
42 (5) An international obligation to ensure
protection of a foreign public service; this is
confirmed by severa! precedents derived from
the application of Articles 88 and 362 of the
Treaty of Versailles, from the diplomatie history
of the concert of European Powers in the Cretan
question, and from the Corfu affair of 1923
(Tellini Affair).
(6) Article 100 of the Charter.
*
* *
Apart from the actual value of each of these
arguments, their diversity gives rise to contradictions
and inconsistency as regards the justification of the
United Nations' right. Those who uphold certain
arguments consider ethers inadequate or
insufficient.' .
6.10 With reference to Article 100 Judge Badawi continued:
'Jtmust be added that this Article, and especially
paragraph 1, is only a rule of conduct or discipline for
the Secretary-General and the staff of the Secretariat.
lt is a rule which would have been more in place in the
Staff Regulations of the Secretariat, if it had not been
desired to link it up to the second paragraph, which
imposes an obligation on States, and if it had not also
been required to justify the privileges and immunities
22 ICJ Reports 1949 pg. 208 - 209
43 provided in their favour by Article 105.
An official of the Organization who is a national
of a particular State may, in one way or another, have
to take part in discussions or decisions of the
Organization, where actions and interests of the
particular State are involved. This official might
consequently find that his national feelings and his
duties were in conflict in a particular case. lt was
therefore necessary to reassure States Members of the
Secretariat's impartiality, and to defi ne what would be
the situation of the staff in such cases of conflict, and
determine their duties; · For this reason, in the first
paragraph of this Article, the staff are enjoined not to
seek or receive instructions from any government or
from any other authority external to the Organization.
The following provision is a repetition of the same rule
in a more extended form; it aIso relates to the dignity of
an international official position. The reference to the
exclusive responsibility towards the Organization is a
consequence .and a necessary confirmation of the
preceding rules.
The second paragraph of this Article only repeats
the ideas underlying the first paragraph, as looked at
from the viewpoint of the State of which the official is
23
a national.'
23 suprapg.209 - 210
446.11 The views of Judge Badawi on Articles 100 and 105 are aIso further
examined for the purposes of the present case:
'What is to be said of the other arguments?
The Court rejects in general any argument by
analogy from the traditional rule of international law as
to the diplomatie protection of nationals abroad (p.
182). ln this way, it rejects the alleged allegiance
resulting from Article 100, which would take the place
of nationality for the purpose of the exercise of the
right above mentioned. But surely the following
reasoning of the Court is only an argument by analogy,
namely:
1 that if one goes back to the principle
contained in the rule of the nationality of the
claim, one observes that, for an international
claim on behalf of an individual to be made by a
State, a breach by the State claimed to be
responsible of an obligation incurred towards
the claimant State must be alleged, and
2 that this principle leads to
recognizing that the Organization has the
capacity to bring an international claim for
injuries suffered by its agent, if the Organization
gives as a ground for its claim a breach of an
obligation incurred towards it (pp. 181 and 182).
45 lt is true that when the Court relies on the
principle mentioned above and implied in the
rule of the nationality of the claim, and when it
secondly relies on the existence of important
exceptions to that rule, and when it lastly relies
on the new situation created by the coming into
existence of the United Nations, it only draws the
conclusion that a negative reply to Question 1 (b)
cannot be deduced from that rule. But that
conclusion is only a part of the Court's argument
in favour of the Organization's right to make an
international claim for the damage referred to in
1 (b). Whether this argument be considered as
preliminary or auxiliary, or whether it be given a
greater importance, it is in any case only an
argument by analogy in favour of an affirmative
reply, and draws its elements from the new
situation, from the identity of the basic principle
of the situations compared, and from the relative
and in no way rigid character of the rule of
nationality.
But in international law. recourse to
analogy should only be had with reserve and
circumspection. Contrary to what is the case in
municipal law. and precisely owing to the
principle of State sovereignty. the use of analogy
has never been a customary technique in
international law.
46 ln any case, this argument by the Court
brings us to the international obligation which
the Court regards as involved in this question,
and which seems to be the foundation for the
above-mentioned argument by analogy.
lt has been asked whether this obligation
was derived from Article 2, paragraph 5, of the
Charter, or from Article 105. But it is evident that
the first of these two provisions, which creates a
definitely political obligation, could not, if that
obligation were infringed, serve to found a right
to make a claim for reparation due to the victim.
This right presupposes a definite relation
between the victim and the Organization, which
cannot be deduced from this general political
obligation.
Nor can a foundation be discovered in
Article 105. For it is a rule that in so far as
diplomatie privileges and immunities impose on
a State a duty of special diligence, they only
authorize and justify a claim for reparation for
damage caused to the State which accredited the
victim. So much so that in the case of a consul
who was not a national of the claimant State, the
right of that State would be limited to direct
damage. On the other hand, in the case of a
diploma r~prcsentative, a combination of his
rights as representative and as national enables
47rep·aration due to the victim to be included in the
international claim.
On the other hand, it must be observed
that:
(1) Article 105 accords privileges and
immunities only to officiais of the Organization;
this term does not necessarily coïncide with that
of agent, as the Court has pointed out; i.e., it has
not the same meaning or scope;
(2) Article 105 does not apply
exclusively to the Organization. Ali the
constitutions of the Specialized Agencies
contain provisions declaring it to be applicable,
or provisions in the same terms.
By connecting up the right to claim
reparation due to victims with an obligation
derived form provisions of such a nature,
situations would be arrived at that are contrary
to those admitted by international law in regard
to master and servant. The result would also be
a generalization, in the interest of ali the
Specialized Agencies, of a right which has
hitherto belonged only to States; the history of
this right is closely connected with the notion of
nationality, and it draws from that notion a
fictitious identification between State and
national.
48 The political character of the Organization
and its importance in the hierarchy of
international bodies cannot be pertinent in this
case, nor can it justify the granting to the
Organization, to the exclusion of other bodies, of
a right not derived from a provision common to
ali.
This argument that the right to make an
international claim is based on the recognition
by a State of its obligation to respect the public
services of another State, was upheld by the
French Government's representative, who
considered that "a State's international
responsibility is involved if the protection
prescribed by international law for diplomatie
and consular services is not provided. The
person of a diplomatie agent must be the subject
of special vigilance on the part of the State that
receives the agent. If this vigilance is lacking,
and damage results, the State whose diplomatie
service is concerned can make an international
claim." lt would further seem that damage
referred to in Question 1 (a) and that in (b) are
both included in this claim. The French
representative mentioned several precedents in
support of this argument; but in truth none of
them is conclusive.
On the other hand, the United Kingdom
representative thought that the bond of service,
49as opposed to that of nationality, only gives the
State the right to make an international claim for
the damage directly suffered by it, i.e. damage
referred to in Question 1 (a); and he maintained
that it was the insufficiency of this argument to
justify a claim for reparation referred to in
Question 1 (b) which led to the search for
another argument. He claimed to find this in
Article 100, which the Court thought was not
pertinent.
1have enquired into ali the details of this
obligation of protection, as found in the
arguments of the representatives of
governments and of the Secretary-General,
because it was adopted by the Court itself at the
beginning as a hypothesis. Then the Court
fou nd itself faced with a new situation - that the
Charter did not expressly say that the
Organization was entitled to include in its claim
reparation for injury suffered by the victim or
persons entitled through him. The Court then
invoked a principle of international law said to
have been applied by the P.C.I.J. to the
International Labour Organization, to the effect
that "the Organization must be deemed to have
those powers which, though not expressly
provided in the Charter, are conferred upon it by
necessary implication as being essential to the
performance of its duties".
50 ln application of this principle, the Court
states that in arder to ensure the efficacious and
independant exercise of itsduties and to sec ure
effective support for its agents, the Organization
must give them suitable protection, and after
asserting that it is essential that the agent shall
be able to count on this protection without
having to count on ether protection (particularly
that of his own State}, the Court concJudes that
it is evident that the capacity of the Organization
to exercise a certain measure of functional
protection arises by intendment out of the
Charter.
As this measure is not fixed, the Court
adopts the juridical construction given by the
Permanent Court to a claim by a State for
reparation due to its national, and asserts "in
claiming reparation based on the .injury suffered
by its agent, the Organization does not represent
the agent, but is asserting its own right, the right
to secure respect for undertakings entered into
24
towards the Organization".'.
6.12 Malaysia has made extensive "revisiting" of the views expressed in the
Reparation case. The separate opinions have indicated the caution that
is tc be applied in respect of powers that are ta be implied and the caution
isapplicable here.
24 supra pg. 210-213
516.13 The General Convention is not merely supplementary ta the Charter of
the United Nations. lt is a specifie treaty. Therefore if it is contended that
Articles 100 and 105 of the Charter of the United Nations are also
intended to caver the question of functions of the Secretary-General,
then on the basis of the principle of generalia specialibus non derogant
the authority of the Secretary-General could only be construed under the
General Convention and taken out of the scope of the Charter of the
United Nations for purposes of interpretation.
6.14 ln paragraph 18 of the Written Statement of the UN, reference has been
made ta the inadequacy of the certifrcate that was then proposed to be
frledby the Minister of Foreign Affairs Malaysia for the purposes of the
proceedings in the High Court. Paragraph 18 described that the
Certifrcatefailed ta refer in any way ta the Note Verbale which had been
issued by the Secretary-General and which had in the meantime been
filed with the court. The question here is whether Malaysia is bound
under the terms of the General Convention to file a certificate in terms
which are identical to that of the Secretary General. The Written
Statements of ether members have reflected varying reasons for the
basis upon which the certificats has been issued. Malaysia's obligation
to aceept the Œrtificate will constitute an acceptanee of the interpretation
that has been given by the United Nations that the authorîty of the
Secretary-General under the General Convention includes an exclusive
executive authority_ ln the Norwegian Loans case 25, there was a
statement of principle that was made by Judge Lauterpacht in connection
with the then French Declaration made under the optional clauses of
Article 36 of the Statute accepting the court's compulsory jurisdiction
subject to an "automatic reservation" of matters of French national
jurisdiction as understood by the Government of the French Republic.
(The term "automatic reservation" was utilised by Lauterpacht to denote
25 ICJ 1957 at pg. 48 and 51
52,--------------------------~----------· ----- ·----·
that type of reservation ta a declaration made under Article 36 paragraph
2 of the Statute of the International Court of Justice acceptîng the
compulsai)' jurisdiction of the court, i.e. so framed as to enable the
accepting country to claim the right ta determine whether the reservation
is applicable ta any specifie case in which its acceptance of the court's
compulsory jurisdiction is invoked by another country). The declaration
itself is invalid as lacking in an essential condition of the validity of a legal
instrument. This was so "for the reason that it leavesta the party making
the declaration the right to determine the extent and the very existence
of the application.". This matter was discussed in Sir Gerald
Fitzmaurice's treatise where he examined the matter in respect of Judge
Lauterpacht's opinion. The following is an extract for the Court's
consideration:
"And he continued (ibid.):
"An instrument in [sic '~nder' or 'by'] which a party is
entitled to determine the existence of its obligation is not a
valid and enforceable legal instrument of which a court of law
can take cognizance. lt is not a legal instrument. lt is a
declaration of a political principle and purpose.'
Lauterpacht was emphatic that it made no difference in this
respect which the precise character of the instrument was. ft
was, he said (ibid.), 'irrelevant for the purpose of the view
here outlined whether the instrument •...is a treaty or ether
mode of creating legal obligations'. Thus although these
remarks were made in connexion with the particular case of
acceptances or purported acceptances of the Courts'
compulsory jurisdiction, Lauterpacht made it quite clear tha:t
the principle involved did not in any way depend on the
existence of a particular context. Not only (ibid.) was the
53 principle involved 'no more than a principle of common
sense', it was aIso a 'general prlnciple of law', and (pg. 49)
it was j ••so self evident as a matter of juridical principle that
it is not necessary to elaborate [the] point by showing it to be
a generally recognized principle of law which the Courts is
authorized to apply by virtue of Article 38 of its Statute [sic]'.
Lauterpacht nevertheless went on dufy to show [ibid.] that
was 'a general principle of law as it results from the
legislation and practice of courts in various countries in the
matter of contracts and other legal instruments'; and he
proceeded to cite French and American authorities in support
of the proposition that, domestically, instrument were treated
as 'invalid whenever the abject of the obligation is reserved
for the exclusive determination of the party said to be bou nd
by the obligation in question'.
6.15 The principle was repeated in the lnterhandel Case. ln the view of
Malaysia the Note Verbale that was maintained severa! times from the
United Nations bears semblance of that instrument which consist of a
unilateraldeclarationwhich purports to createa legal right and obligation.
ln Judge Lauterpacht's view the instrument would not be a legal
instrument at ali but a mere statement of policy of intention having a
political and not a juridical character. The principle was that if a party
retains the right ta determine for itself the nature or extent of the
obligation supposedly involved, orto indicatein what casesthis would or
would not apply, then no real legal obligation was involved and the
instrumentwasjuridicallyconsidered a nullity. The NoteVerbale used by
the Secretary-General in Malaysia's view is therefore of no effect for
Malaysia to comply in issuing the Certificate of the Minister.
54 F. QUESTION 2
General
7.1 The second question before the Court poses a novel situation. The
present tacts are distinguishable from the tacts in the Reparation case.
The severa! Dossiers, that have been placed as a part of the Written
Statement of the UN refer ta the United Nations' concems in respect of
criminai adjudication in Member States which affect or interfere with the
performance of mission by experts, or what are generally described as
official acts of staff officials.(See Annex IV) The tacts of the present
casehowever arase out of civil adjudication. The reference inthe Written
Statement of Malaysia (at pg.61) to Mighell v the Sultan of Johore is not
just simply on the question of immunity but aise to reflect a rule of law of
civil procedure applicable in Malaysia. lt aise concems the rule that
assertions of immunity willrequire proof which however can stiJl be
provided. Dossier 84 discloses the effect of legal processes on the
question of determination of immunity.
7.2 By way of a general observation, it has been observed that "the power of
domestic courts ta interpret international agreements, and their
independance from the executive in doing sois subject ta a variety of
26
regulations in differentcountries". lt isfurther elaborated that it "is a weil
settled rule of English law that the courts will not accept a treaty as a
source of law unless it has been incorporated into the Law of England by
legislation". The situation is described further that "Strictly speaking in
Englishcourts the question istherefore one of statutory interpretation and
although their methods of interpretation have been caused somewhat by
the legislative means of interpretation adopted by Parliament; which
26 C. H SCHREUER: The interpretation of treaties by domestic
courts.BY 1971 at pg.256
55 range from enacting material provisions of an international agreement so
asto bring English law into line with the international obligations of the
Crown without direct reference ta the treaty to simply enacting the
convention ward for ward; the courts of England have on the whole taken
these statutes for what they are: the product of a legislative technique to
make the treaty operative in the municipal sphere". 27 lt is further
explained that this practice is based on the theory of the separation of
powers while the courts are competent to exercise control over the
administration, they cannet do so with respect to the diplomatie functions,
which lies within the exclusive competence of the Foreign Minister.
These observations are equally applicable.in Malaysia. Attached to this
reply is a reference to an appraisal made of the varying practices
undertaken by States in relation tb the questions of treaties placed before
national courts. (Annex V)
7.3 lt has been suggested in the statement made bythe United Kil1gdomand
the United States of America that in giving effect to the provisions of the
Convention, the issue of immunity that is claimed could still be considered
as a "thresholdjurisdictional issue". ftalso invitesthe Secretary General
tc consider more active interventions in ether internai processes by which
this could be effected without the United Nations itself being joined as a
defendant or plaintiffin international proceedings. lt has been shawn that
even in the field of sovereign or state immunities there are orderly
developments which show that in certain areas ofactivity the doctrine has
become more limited than absolute and this is evidenced by the effort of
the International Law Commission in preparing the Draft Articles On
Jurisdictional lmmunities of States and Their Property. These
suggestions may not necessarily be the responses that are required of
the question but may nevertheless have seme relevance in seeking a
solution as what appears to be an irreconcilable position betv.Jeendeniai
27
infrpg. 257
56 of immunity and the total deniai of executive and judicial consideration by
Member States.
7.4 Section 30 does not incorporate any mechanism by which any difference
arising out of the interpretation or obligation of the General Convention
arase out of matters where an individual is involved. Although Section 30
contains reference to the possibilities that parties do have recourse to
another mode of settlement, these various possibilities have not been
sufficiently utilised to enable cases, such as this case, where implicated
in the difference over interpretation is, an individual who seeks a judicial
determination in respect of infringement of a right. If there have been
occasions that individuals or corporations should have direct access to
the International Court or any ether tribunal, no universal recognition has
been accepted. Malaysia's reference to the ICSID Convention (page 6
of the Written Statement of Malaysia) is again to reflect that a law could
be implemented in Malaysia where the private parties could seek
international arbitral assistance in an important area of international
economie activity. ft is not suggested here that the ICSID machinery is
applicable but rather it cornes within the range of possibilities that couId
be examined for consideration where there appears to be a conflict as in
the case arising out of the application of the terms of the Convention.
Developments in the Law of the Sea Convention have given natural or
juridical persans access to the Law of the Sea Tribunal in those situations
where such persans might come into direct contact with the rules or
organs established by the Convention. But this is not a simple matter of
suggestion but has to be borne out of a political will within the framework
of contemporary standards requiring the consent to jurisdiction.
7.5 As has been observed: If immunity is the starting point, a requirement of
a positive universal practice for any restriction is bound to Jead to an
assertion of absolute immunity. On the ether hand, if we proceed from a
general rule of jurisdiction, we will find it difficult, if not impossible to find
57 proof of a uniform practice supporting immunity 28• lt is now fifty years
since the inception of the General Convention. The proposition (at pg. 14
of the Written Statement of the UN) that disputes are not to be settled by
the national courts of a party of a Member State party to the Convention
but the differences between the United Nations and a Member are to be
decided by having recourse to the advisory jurisdiction of court is not
accurate. This is the second case. lt must evidence then that ether
cases have been settled before national courts or ether means.
Question 2(a)
7.6 . Malaysia does notsupport the reasons nor the conclusion reached by the
United Nations in its Written Statement that the Secretary-General has,
under Section 22(b) of the General Convention, the exclusive authority to
determine whether words were spoken in the course of the performance
of a mission. lt may weil be that he has a separate or independent
authority but not exclusive and hence conclusive.
7.7 If it is said that he has such an exclusive authority, it has to be a legal
authority and for the reasons that Malaysia has given earlier, if that is
indeed intended to be conferred on the Secretary-General then the
General Convention has to be amended, that is, such a legal authority
has to be vested with the consent of the States. The Written Statement
of Germany illustrates how varied are the Member States' interpretation
of Section 22(b). The word "Prerogative" is associated with sovereign
states. The United Nations is an international organization.
7.8 Even assuming that he has such an authority the question is which, then,
will be the authority to determine whether the exclusive authority has
been properly exercised, reasonably exercised or exercised in good faith.
28
C.H. Schreuer: State lmmunity: Seme recent development, pg.4 1988 Ed.
58 ls it the General Assembly? The determination to be made is a
determinationofbathtacts and law. Whenthe alleged exclusiveauthority
under Section 22(b) and the right and duty to waive vest solely in one
persan thenthe reasonsfor arrivingat the determination of tacts and the
reasons for not exercising waiver may become assimilated. Absolute
immunity would then be established.
7.9 Assuming that Questions1 and2(a) are answeredin the affirmative then
according to the question posed by the United Nations, if the Secretary
General does not waive immunity from legal process there would
consequentlybe an internationalobligationonthe part ofthe Government
of a MemberState partyto the Conventionto give effect to that immunity
in its national courts.
7.10 There aretwo other reasonsfor Malaysianotto support a conclusion that
Question 2(a) be answered in the affirmative. Question 2(a) must have
been posed to fit the tacts of this case. ln addition to the comments
given underSections C-E, to acŒpt Question.1 and 2(a) is tantamount
to allowing the United Nations not to observe Articles 2(1) of the UN
Charter for there is suggested here that the Secretary-General be
conferred with exclusive authority to impose limitations (hence gross
limitations) on the Government of Malaysia and the national courts in
Malaysia. This exclusive authority circumscribes not a rule of civil
procedure in civil adjudication but a substantive matter.ln accordanŒ
with Section34 Malaysiahas alsoto introduceschanges in its municipal
legislation for the application of Section 22(b) is not "self executing".
7.11 The secondreason is that the concept offunctional immunity is changed
and to incorporate it in the General Convention could if not properly
considered result in the extinguishment of individual rights contrary to
Articles 7and 8 of the UniversalDeclarationof Human Rightsand Article
3 [Part Il] of the International Covenant on Civil and Political Rights
59 (Extracts attached as Annex VI). Persans in the category of experts will
also enjoy "special" "immunities" which are already discriminated in
nature.
7.12 With such consequences arising from the interpretation given to Section
22(b) it becomes a revised te:xt and for such a change the General
Convention must be formally amended to indicate the consent of Member
States to be bound.
Question 2(b)
7.13 However even if it be that questions 1 and 2(a) are answered in the
affirmative, question 2(b)is not as simple as it appears to be. Question
2(b) is said to arise when there is a failure to give effect to the obligation
as stated in question 2(a) and the Reparation case has been principally
relied upon. The difficulty that arises from an application of the decision
of that case to this case is that the "injuries" are not physical injuries
incurred by the Special Rapporteur but financialliabilities. These financial
liabilities though incurred by "the assessments of actual costs, expenses
or damages arising out of or assessed by courts" arose as a result of the
action instituted by an individual and not by Malaysia instituting a civil
action. Malaysia's breach of obligation is not to issue a certificate in
terms of the Secretary-General's determination, which exclusive
determination is allegedly already authorised under Section 22(b).
7.14 The claim by the United Nations in respect of the Special Rapporteur is
not a claim of a state for breachof treaty provisions in respect of nationals
or non-nationals. The Charter of the United Nations is aIso not a supra
national convention. No further reasons are advanced for the extension
of the principlein the Reparation case. ln Malaysia's view this question
cannat be answered without due consideration to the extent to which the
principle in the Reparation case could be made applicable.
607.15 Shabtai Rosenne, in his book "Breach ofTreaty" (page 123) had this to
say:
"...it is noteworthy that despite the lenghty codification
process, both of the law of treaties and of the law of
State responsibility, and despite the large amount of
international case-law that has accumulated over the
years dealing with "breach", there is no generally
accepted definition of what is meant by "breach of a
treaty". The question has even been asked, for instance
in the 831st meeting of the ILC in 1966, whether mere
non-performance constituted a breach of a treaty.
Leaving aside the valuable maxim that ali definitions
are hazardous (omnis definitio periculosa est), and
recalling that the definition of "material breach" in
Article 60 of the Vienna Convention was made for the
limited purpose and is itself entirely narrow, it seems
that the only viable description of a breach of a treaty
is one that can be deduced not from the law of the
treaty-instrument but from the law of treaty-obligation,
the law of State responsibility. On that basis it can be
described as 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 party to a treaty in force and the
conduct being incompatible with an obligation
grounded in that treaty. "
7.16 Article 60 of the Vienna Convention on the Law of Treaties
provides:
for "material breach" and if committed the Convention lays down
61 the provisions allowing relevant party/parties to terminate or
suspend the operation of the treaty. Article 60(3) defines "material
breach" as follows:
"3. A material breach of a treaty, for the purpose of this
article, consists in:
(a) a repudiation of the treaty not sanctioned
by the present Convention; or
(b) the violation of a provision essential to the
accomplishment of the abject or purpose
of the treaty.".
7.17 While the Convention is silent on these "non-material breaches", the
position of Article 60 was summarized by Bruno Simma in-his article
"Reflections on Article 60 of the Vienna Convention on the Law of
Treaties and its background in General International Law" where he
wrote:
"... Article 60 constitutes one of the provisions with
regard to which - aside from procedural shortcomings -
the limited scope of the Vienna Convention on the Law
ofTreaties will be felt both clearly and painfully. While
Article 60 and its related provisions carefully and
equitably regulate the application of the reactions to
breach having their sedes materiae in the law of
treaties, any examination of the breach situation limited
to an analysis of the rules of the Vienna Convention
will, due to the exclusion of similar reactions having
their sedes materiae in the law of international
62 responsibility provide the observer with an incomplete
29
picture."
7.18 Mc Nair's approach on the issue is on a slightly different angle. Rather
than to define the term "breach" he went on to describe the forms in
which breach may be committed:
".. A breach of treaty may be direct, for instance , when
a State declines to surrender an alleged criminal to
another State in pursuance of an extradition treaty
between them which covers the crime alleged and
other relevant circumstances;... But breaches are not
· · usually so simple as that. A State may take certain
action or be responsible for certain inaction, which ,
though not in form a breach of treaty, is such that its
effect will be equivalent to a breach of treaty; in such
cases a tribunal demands good faith and seeks for the
reality rather than the appearance.". 30
7.19 Mc Nair, in his book listed the followings to describe who can commit
breach:
"1.State organs
A breach of treaty can result from the action of any
department of government - executive, legislative,
29 reproduced in S. Rosenne 'Breach of Treaty' at pg. 7
30
Mc Nair, The Law of Treaties, p.540
31
The Law of Treaties, p.550
63 judicial or purely administrative organs. How it
happens is a domestic affair; what matters to the other
State is that a breach has occurred. Although a State
has a right to delegate performance of a treaty to the
appropriate department of its government, but that
does not relieve the State of responsibility. ln
particular, it can delegate the application and
interpretation of a treaty to its court of law, but their
decisions are not conclusive internationally.
Il. Private subjects
A breach of a treaty is an international delinquency,
and international delinquency can be committed only
by the head or Government of a State, by State officiais
or by subjects acting under the command or authority
of the State. Therefore, strictly speaking, private
subjects cannot be held to be in breach of a treaty.
However, the State aggrieved by the acts of the other
State's national may be able to show that the other
State has not taken ali reasonable measures, by
enacting and enforcing appropriate statutes or
regulations, to ensure compliance with the treazy and
has in that way committed an international
delinquency."
7.20 The Written Statement of the UN (at pg. 22) submitted that:
"57. 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
64 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.
58. ln accordance with Section 34, the Govemment 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 Article VI,
Section 22(b), of the Convention. At the very least , the
latter obligation includes the obligation of the
Govemmentto inform its competentjudicial 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 thep~rforman of emission
for the United Nations and that the United Nations has
therefore maintained the immunity from legal process
of the expert on mission concerned with respect to
those words or acts. ln addition, it is also incumbent
upon the Govemment, if necessary to further intervene
in the proceedings to uphold and ensure respect for
that immunity, thereby giving it effect. International
jurisprudence has confirmed that such interventions by
the executive agents of a Government do not constitute
interference with the independence of the judiciary. ".
7.21 The intervention by the Government of Malaysia should be effected in
accordance with national legislation and not by direct executive
interventionlikethe Note Verbale. ln accordance with Section 34 of the
General Convention the Government is required to enact a law to give
effect to the terms of the Convention. And this Malaysia has done.
Although, as mentioned earlier, the actions by the judiciary does not
65 relieve the State from responsibility, that is not to say that the
interpretations of the national courts are automatically erroneous.
Malaysia's actions be it by the executive, by the Foreign Minister issuing
the certificate, or by the legislature through enacting a law to incorporate
and to give effect to the Convention, or by the judiciary by considering the
issue of immunity in the light of the wordings of the Convention have
always been consistent throughout. These acts are the manifestations of
our understanding and consistent with Article 26 of the Vienna
Convention on the Law of Treaties, it shows that our interpretation and
acts are performed in good faith. The differences between Malaysia and
the United Nations arose in interpretation of the provisions.
7.22 Rosenne wrote -
"With the growing complexity of international treaty
making and a rapidly changing general international
situation, formai amendment of treaties is becoming an
increasingly difficult process. As a CC?Unterpartto this,
when a treaty applied as its authors originally intended
cornes under strain, it is easy to proclaim breach. The
law seems to be trying to discourage this, and the
proceedings of the Vienna Conference together with
the repetition of the provisions of the Vienna
Convention in the 1982 articles of the ILC suggest that
by and large there is a considerable measure of
political backing for that approach. The doctrine of
approximate application if skilfully used may serve as
a prod to the renegotiation, reinterpretation or
readaptation of a treaty which in its general lines
remains desirable to ali parties but which in its details
cannot stand up to the wear and tear of daily life. The
doctrine is thus a constructive contribution to the
66 general stability of juridical relations which are to be
coupled in appropriate cases with a properly controlled
dose of peaceful change and adaptation. Pejorative
assertions will never be helpful in this process." 32
7.23 With regard to proclaiming breach due to differing interpretation,
the same author had this to say -
"Treaties are not drafted in the same way that
parliamentary statutes are drafted, and most diplomatie
drafting includes a heavy dose of political compromise,
magnified by contemporary "consensus" procedures
applied to treaty drafting. This often produces
deliberately ambiguous texts, the ambiguities being
augmented by the multiplicity of authentic texts of
modem UN and other treaty practices. Underlying these
ambiguities is the thought that future developments
can be left to take care of themselves. lt is not easy,
therefore, when treaties are drafted in this way to
castigate with absolute confidence that an unexpected
interpretation and action by a State party is necessarily
a breach of the treaty, simply because it is unexpected
and unanticipated. This observation, in the nature of
things, is generally applicable to multilateral treaties,
but there is no reason why it should not also be
applicable to bilateral treaties or treaties concluded
between a limited number of States. " 33
32 Rosenne, Breach ofTreaty, pg.100-101
33
supraat pg.121
677.24 The Court is referred to Annex VIl concerning further aspects on the
question of breach of treaty obligation. Question 2(b) contains toc many
assumptions and raises procedural and substantive questions regarding
the implementation of a responsibilityto be assumed by a Member State
arising out of a breach of treaty obligations, the legal basis of which is an
interpretation of a provision of a treaty namely Section 22(b) of the
General Convention. The extension of the principle in the Reparation
case that the United Nations could espouse a claim made against the
Special Rapporteur and holda Member State responsible for the liabilities
incurred as a result of civil proceedings instituted in this case by a private
individual is a rule without proper legal basis and is a strain on the rule
of construction of necessary intendment in the Reparation's case. For
these reasons the answer for question should be in the negative and
should not enunciate a general rule arising out of an alleged breach of
obligations. under the General Convention. Even if the Court were to
answer question (1) and 2(a) in the affirmative, 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 even if the Court were to answer question 2(b)
in the affirmative since this alleged breach has a arisen over differences
regarding a question of the in interpretation of a treaty it should not be
made retroactive to the present case.
7.25 Question 2 relates to the determination that is to be made by the
Secretary-General in the. exercise of his authority for it is the
determination which he has to make that will also affect the obligation of
a Member State in implementing his decision. lt has been pointed out
that certain aspects of the activities of the General Assembly and the
Security Council are decision making, binding upon States especially the
latter in the securitysphere. This entails that "the assessment of thè
evidence and the determination of the law will not be free from collateral
political considerations in the same way as the process of reaching a truly
68 judicial conclusion would or should have been. 34 Similarly in the
performance of the task under Section 22(b) of the Genera1Convention,
the Secretary-General takes certain decisions that involve determination
of law and fact and which decisions will aIsoestablish whether a State is
in breach of an obligation. Jsthis "in the vocabulary of the common
lawyer- quasi judicial" or really "executive"?
7.26 The Court's observations in the following cases are useful for the Court
has assisted in the orderJy development of the Charter of the United
Nations.' ln the Peace Treaties case (Second Phase) the Court opined
that where a clause canters upon an international authority such as the
Secretary-General of the United Nations (e.g. tc nominate an arbitrator
in disputes) such a clause must 'by its nature .... be strictly construed and
35
can be applied only in the case expressly provided for therein'. Sir
Gerald FitzmauriΠobserved it would follow from this that international
officiais when acting or requested to act in the exercise conferred upon
them by treaty (or by the Charter of the Organization) should take a
conservative view of the nature and scope of the authority. ln the
Interpretationof the Agreement of 25th March 1951 between WHO and
Egypt, the Court took the opportunity of making severa! statements of
principle conceming international organizations. The Court said inter alia:
"International organizations are subjects of
international law and, as such are bound by any
obligations incumbent upon them under general rules
of law, under their constitutions or under international
36
agreements to which they are parties".
34 Lauterpacht: Aspects of the Administration oflntemational Justice, pg. 42
35
ICJ 1950pg.227
36 ICJ 1980 pg. 89, para. 37
69 G. CONCLUSION
8.1 ln concluding :
(A) On the basis of submissions made in the Written Statement
and the Reply to the Written Statement of the UN and ether
Member States, Malaysia respectfully submits that:
(1) the Court should consider not to answer question 1
and 2(a) in the affirmative.
(2) ifthe Court answers questions 1 and 2{a) in the
negative, question 2(b) is unnecessary.
(B) As regards principles of law raised :
(1) section 22(b) of the General Convention does not
vest the Secretary-General with the exclusive
authority to make a determination.
(2) For purposes of (1) and (2) to be applicable the
General Convention requires formai amendment.
(3) The Reparation case is distinguishable a,nd is not
applicable in determining that a Member State
assumes responsibility in respect of question 2(b).
ATTORl\1EG YE!-.TERALC'iLt..~\lBEP.S
MJ:1.:-\YSLA.
704nnex ANNEX I
r:-:···-·_
Justice
•
lll
International Law ·
SelectedWritingsof
STEPHEN M. SCHWEBEL
Judge of the International Court of Justice
GROTIUS PUBLICATIONS
''::.,. MBRIDGE
UNIVERSITY PRESS 29
The Legal Effect of Resolutions and Codes of
Conduct of the United Nations
The Contending Positions
The tapie of the impact of resolutions of the United Nations General
Assembly on the prmciples of customary international law has been a subject
of controversy for sorne years. This lecture reconsiders that que5tion in the
light of recent material, induding current work of the lnstîtute of Inter
national Law and the American Law Institute. ltwill look particularJy at
relevant holdings in four international arbitral awards. And it will touch
upon the subject of the influence of Codes of Conduct on international law,
one of the many tapies on which that distinguished scholar, Professer Pieter
Sanders, has shed light.
The parameters of the question can be summarized asfollows. On one side
of the debate are those who emphasize that, under the Charter of the United
Nations, the General Assembly lacks legislative powers. lt does have certain
internai and fmancial powers whose exercise creates legal obligations. Thus
when the General Assembly electsthe Secretary-General or aMember of the
Security Council, or when it apportions the expenses of the Organization,
Members are legallybound. But, putting resolutions on such subjectsaside, it
is plain that not a phrase of the Charter suggests that the General Assembly is
empowered to enact or alter international law. It bas the broadest authority
to adopt recommendations, and those recommendations may embrace legal
as weil asother matters. But they remain recommendations, which Statesare
legallt free to adopt or disclaim. AsJudge Sir Hersch Lauterpacht put it, "the
paramount rule" of the Charter is that "the General Assembly has no legal
powei,"to legislate or bind its Members by way of recommendations ... " 1
-'>
Fîrst pu~liinshcumdIn.temtJtlectober 1985). Reprinted by permission of Kluwer Academie ...·
1ublish~.
SoutWest Aftica- VotingProcedure,AdvisoofJune 7th, 1955: IC] ReportSepara.te
Opin1~omJudge Sir Hersch Laucerpachc,pp. 90, 116.
1 499
! AGGRESSION, COMPLIANCE, AND DEVELOPMENT
This is clearnot only by the terms of the Charter, but by a consideration of
its travaux préparatoiresA . t the San Francisco Conference on International
Organization, only one State voted for a proposal that would have permitted . ..
the General Assembly to enact rules of international law that would become
'~-
binding for the Members of the Organization once they had been approved
by a majority vote in the Security Counci1. What the terms and the travaux
of the Charter do not support can scarcely be implîed.
Those who deny that the General Assembly's resolutions affect the content
of customary international law also observe that States Mernbers often vote
for rouch with which they actually do not agree. They may go along with a
"consensus" to which they consent only in form and not in substance. Their
Delegates may vote without instructions or be IooseJy instructed; they may
vote in accordance with group dictates rather thanas an expression of what
their Government believes that the law requires. The Members of the
General Assembly generally vote in response to political, not legal, consider
ations. Their intention normally isnot to affectthe law but to make the point
which the resolution makes. "The issue often is one of image rather than
international law; States will vote a given way repeatedly not because they
consider that their reiterated votes are evidence of a practice accepted as law
3
1 but because itis politically unpopular to vote otherwise. "
1 The United Nations General Assembly is a forum in which States can
express their views, but what they dois more important than what they say,
1 and especially more important than what they say in the General Assembly
1
not only because the General Assembly is not authorized to Iegislate but, as
Professor Arangio-Ruiz tellingly sums it up, because its Members don't
4
"mean it." That is to say, General Assembly Members often do not
meaningfully support what a resolution saysand almost always do not mean
that a resolution shaHmake international law. Indeed, asa comprehensive and
searching report recently submitted to the Institute of International Law by
Professer KrzysztofSkubiszewski observes, inreferring to the practical effect
of the non-binding nature of the Assembly's resolutions: "These instruments
have often secured the required majority or general consensus and could,
consequently, be adopted 'preciselybecause'- asSir Gerald Fitzmaurice put it
- 'they were not binding in law'. The records of discussion in the United
2 DocumentJoftlre UniredNationsConferenceonInternationalOrgauVol. 9, pp. 70, 316.
3
S.M. Schwebel, "The Effect of Resolutions of the United Nations General Assembly on Customary
International LawProceedinsf tl1e73rdAnnual MeetingtillAmauan Societyof IntematicmallAw
(1979), pp. 301, 302. -.
4 G. Arangio-Ruiz, "The Normative Role of the General Assembly of the United Nations and the
Declantion ofPrinciples ofFriend.ly RelatRecueidesCours1972-lll(1974), pp. 431,457.
500
',•,
·d~ INTERNATIONAL
LAW
IN A
DIVIDED WORLD
ANTONIOCASSESE
CLARENDONPRES· OXFORD
- International Law-making PARA.
(§62). This can be easily understood if one bears in mind that they now
form a minority in the international community and are therefore interested
in negotiating with the majority any revision or updating of the old law, or
any regulation governing new situations.
This general convergence of interest accounts for the expanding role of
codification and progressive development of law through international
agreements and conventions.
So far, two major channels have been used to this end. ln the more
traditional and classical areas of codification (law of the sea; diplomatie
and consular immunities; law of treaties; State succession; State responsi
bility) draft treaties have been elaborated b~he International Law Com
mission (made up of forty-two experts with great diplomatie experience,
and, therefore, particularly sensitive to States' demands) and subsequently
discussed by the Sixth Committee of the General Assembly; they were
subsequently the subject of negotiation in diplomatie conferences. In other,
·or even in the same, areas when existing law was more in need of radical
change, or major differences persisted, the technical co-operation of the
1LC was shunned: States preferred to keep the discussion and negotiation
under their direct control; accordingly, a Special Committee consisting of
their representatives was set up to report to the General Assembly. In sorne
instances where the matter was too controversial for a detailed agreement
to be reached, the upshot was the adoption of·a Declaration (such as the
1970Declaration on Friendly Relations). In other cases the General Assem
bly, after taking accountof the discussions in the Special Committee, re
ferred the matter to a diplomatie Conference. An important illustration of
this process is the laborious work carried out froI973 to I982 on the new
law of the sea. In 1958, when four Conventions on the matter were adopted,
the main purpose was to restate, codify, and update existing law, and
consequently the co-operation of the IL C proved indispensable. By con
trast, in the 1970s the main object was to change the law radically; to this
end direct negotiation amongStates was regarded as a more suitable method.
The Role of General Assembly Resolutions inLaw-making
107. 1 stressed above (§95) that owing to the opposition of Western and
socialist States, the tentative endeavour made in the 196os by developing
countries to tum General Assembly resolutions into legally binding acts
ended in failure. Resolutions are therefore still governed by the UN Charter
provisions, which grant the Assembly and other bodies (except, of course,
for the Security Council) hortatory powers only. And, indeed, most General
Assembly resolutions produce very limited effects because, in addition to
the intrinsic limitations deriving from the Charter, their very contents and 1
the sort of majority behind them frequently result in their carrying little 1
l
1
_l erp
106-7 International Law-making
193
weight. As was said in 1983 by a prominent representative of Jordan, 'UN
resolutions are unfortunately seldom landmarks in hi23ory; they are more
often mere ..footprints in the sands of time" '. Nevertheless, sorne resolu
tions can be fitted into either of the traditional law-making processes:
treaty-making or custom.
I have already given a few illustrations of UN resolutions which accelera
ted or at least testifyto the formation ofcustomary international law (see §77
on the UN Declaration on Friendly Relations of 1970). Other illustrations
include: the turning of wars of national liberation into a special category of
international armed conflicts, as distinct from civil wars (§161); the graduai
transformation of mercenaries into war criminals, in derogation from the
traditional standards of international law (the long process of General As
sembly resolutions on this subject was compounded by the adoption of a
provision on the matter in 1977, in the Geneva Diplomatie Conference on
Humanitarian Law: Article 47 of Protocol 1 (§154)). It stands to reason
that the unique opportunity afforded by the UN for practically aUmembers
of the world comm.unity to get together and exchange their views cannat
fail to have had a strong impact on the emergence or reshaping of custo
mary rules. In addition, the UN encourages States to develop their views
on matters on which they are often called upon to comment. This again
ensures that a host of pronouncements are collected which would otherwise
only be obtainable with difficulty. ·
In sorne instances General Assembly resolutions can also be tantamount
to interstate agreements, more specificallyto agreements concluded 'insim
plifiedform' (§102). This, of course, depends on the intention of the States
supporting the resolutions, and can emerge from their declarations as weil
as from the tenor of the text adopted. lt stands to reason that the
'resolution-agreement' only binds those States which voted for it, or at any
rate did not voice their opposition explicitly.
The view that, except for a few well-defined cases, resolutions do not
possess a legally binding value per se is by far the most widespread in the
Western legal literature. The same view is also upheld, to a very large
extent, by the jurists of Eastern European countries, 24 and is also reflected
in the officialattitude of those countries (see, for "instance,the Soviet Me
morandum to the 1CJ for the UN Expenses case).2 5 Sorne international
lawyers from the Third World also tend to regard UN resolutions as devoid
.... perse of binding force, although they strongly emphasize the importance
that resolutions cao acquire in many respects with regard to the customary
:zSee, the Declaration of the Prince of Jordan, Hassan Bin Tallai, to the 'Indepeildent
Com4ission on International Humanitarian Issues'(Geneva), p. 3·
z The viewof socialist jurists on the legal value of recommendaisset out in Tonkin,
161576. SealsoDDR- Volkerrecht 1982,i. 206-8.
The Soviet memorandum is in ICJ Reports(1962)pp. 270-4 (seealso PP-397-412).
i
1'
i
1
j
1
1
J 194 International Law-making PARA.
process, or even from the viewpoint of treaty-making. For instance, this
26
stand has been taken, with variations,- by the Mexicail Castafieda, the
Egyptian Abi-Saab 27 and the Chinese Wang Tieya. 28 Wang Tieya recently
observed:
In sorne instance, General Assembly resolutions-particularly the declaratory docu
;
ments therein-may specify and systernatize rules of customary law and they may 1
refiect or even reaffinn and develop existing principles and rules of international 1
law. If such declaratory documents creatively clarify new principles and rules of !
i
international law, no one would be able to deny their law-making effectjust because '
they are, strictly speaking, not legally binding. At !east they have been approved by l
the majority of countries and represent their legal consciousness, thus clearly paint
ing to the direction in which international law is developing. \
Sorne of the Third Worldjurists go so far asto contend that the 'cumulative
effect' of resolutions may prove sufficient for the creation of new law. A
1 contrary view has recently been propounded by the distinguished Argenti
1' 29
~ nian jurist Barberis, in whose opinion for a rule of customary law to
come about or for it to undergo a legal change it is always necessary that
i
the passing of resolutions be attended by the actuaipractice of States.
InterestingJy, many a developing State steadfastly argues in the UN that
General Assembly resolutions are binding per se. Suffi.ceit to quote the
\
statement made in 1982 by the delegate of Zaire in the Security Council, in
the course of the debate on the South African raicj.inLesotho:
There is not the shadow of a doubt that ali decisions of the UN, through the GA,
1
1 the SC and ali the ether bodies which in one way or another deal with the situation
in South Africa, in particular, and in southern Africa, in general, are binding on ali
Member States of the UN. Under other circumstances 1 have bad the opportunity
of recalling that UN decisions and resolutions which are in keeping with the prin
ciples and purposes of the UN are binding on ali Members of the UN whatever
position they may have taken on a particular resolution. If that were not recognized,
then it would mean that any Member could disown the mission, the goals and the
objectives of this universal Organization.
As for the way of assessing the possible impact of resolutions on customary
or treaty law, the most appropriate and sensible criteria have been suggested
by Abi-Saab:
Three indices can help us gauge the real value or weight of the contents of a
resolution beyond its fonnal status as a reconunendation and chart its progress
26 J.Castaiieda, •ta valeur juridique des résolutions des Nations Unies', HagRecueil129
(197C>--2I 1ff. .
l G. Abi-Saab, 'The Newly Independent States and the Rules of International Law: An
Outline', Howard Law Journa/8 (1962),109-10.
za Wang Tieya, 'The Third World and International Law', ChYI L,pp. 23-4.
ZP A. Barberis, 'Nouvelles questions concernant la personnalité juridique internationale',
Hague Recueil179 (1983-I}, 252-3. 107-8 International Law-making 195
1· towards becoming part of the corpusjuris of international law. The first refers to
1 the circumstances surrounding the adoption of the resolution, and in particular the
' degree of consensus obtaining over its contents. The second is the degree of con
1
1 creteness of these contents, and whether they are specifie enough (by themselves or
i in addition to those of prier related resolutions) to become operational as law, i.e.
l identifiable prescribed behaviour. The third is the existence (and effectiveness) of
follow·up mechanisms generating a continuous pressure for compliance. 30
1
1
i Consensus as a Means of Facilitating Agreement within International
i Organizations and Diplomatie Conferences in an Age of Deep Divisions
1
1
i 108. In the early 196os, it became apparent that developing States mus
tered a broad majority within the UN and that, by siding with socialist
i countries, they could easily commanda two-thirds majority. Consequently,
they were in a position to pass resolutions to their Iiking, overcoming any
possible opposition from the West. However, the Third World soon became
aware that scoring such easy victories would be self-defeating. It was
evident that in consistently losing the support of a powerful segment of the
international community they would alienate it for good and doom any
international action to failure. Socialist countries too were reluctant to be
impelled to make a show of strength with Western States, lest the latter
should impair the process of détenteinitiated in the early 196os-a process
the former intended to pursue and even step up. Western countries, on their
part, were eager to co-operate for fear of remaining isolated. Thus, a new
deviee gradually evolved in the UN for narrowing down differences and
reaching solutions acceptable to everybody-that of the consensus proce
dure.
After being frequently resorted to both in the UN and in ether organi
zations, as well as in diplomatie conferences, consensus was defined in one
of the rules of procedure adopted in 1973 by the European Conference on
Security and Co-operation. Rule 69 stipulated that 'Consensus shall be
understood to mean the absence of any objection expressed by a Represen
tative and submitted by hlm as constituting an obstacle to the taking of the
deCision in question'. A similar definition was included in the Rules of the
1974 World Population Conference, whereby consensus was 'understood to
mean, according to UN practice, general agreement without vote, but not
necessarily unanimity'. Reference to consensus was also made in subsequent
instruments, among which was a famous 'gentleman's agreement' adopted
by the Third UN Conference on the Law of the Sea, in 1974·
' Consensus therefore denotes a negotiating and decision-making tech~
; 30 G. Abi-Saab, AMiytica/ Study on Progressive Developm.ent of the Princip/eand Norms
'ofInternationLaw Relating to the New ImematibMl Economie Orcier,A/39/504/Add.I, 1984.
,36-7. International Law-mak ing PARA.
nique, consisting of a collective effort to agree upon a. text by reconciling
different views and smoothing out diffi.culties.This process culminates in
the adoption without vote of a text basically acceptable to everybody.
Consensus is different from unanimity, for in the latter case there exists full
agreement on a given text and in addition the general consent is under
scored by a vote. Consensus is also different from acclamation, for although
normally texts approved by acclamation are not voted on (as in the case of
consensus), they are, however, the subject of unqualified agreement. Often
'reservations' and objections are expressed either before or after it is de-
.clared that a consensus decision bas been taken. What distinguishes con
sensus from the usual adoption of decisions by a majority vote is that, in
the case of consensus, possible 'reservations' do not affect major points of
the decision (whereas when there is a split between States favourable, those
opposing, and those abstaining, the States casting a negative vote or abs
taining usually entertain and express basic differences with the States sup
porting the text). Moreover, as a consequence of the lack of fundamental
divergencies, and with a view to emphasizing the existence of a substantial
convergence of views,"no vote is taken.
The political and ideological premises on which the consensus procedure
restsare clear: first, the fact that at present the world community is deeply
divided in many respects; and second, the desire of the varions groups of
States to refrain from widening the gaps by resorting to traditional methods
wbich under the present circumstances would produce inetfective inter
national 'legislation', valid only for the majority of weak States. Consensus
is therefore a decision-making process characteristic of the present stage of
development in the world community.
The advantages of the new technique are self-evident: it implies that the
prospective m.inority becomes involved in the process and can therefore see
to itthat its interests and concems are safeguarded; it fosters negotiation
and compromise; and it means that neither the overpowering (but only
rhetorical) force of the many. nor the veto of the few powerful States, are
made use of. This in turn increases the chance of resolutions being imple
mented and of conventions being ratified and observed by a large number
of States. The drawbacks of consensus are no less evident, however: diver
gent views are often ironed out only on paper, by dint of vague compromise
formulas which each of the draftsmen subsequently interprets in his own
way; international instruments become tainted with ambiguity; and nego
tiations tend ta get bogged down in interminable discussions and trade-offs,
because each State or group feels that the more it holds out, the more likely
is its counterpart to abandon its initial bargaining position and make sub
stantial concessions. In addition, no benefit derives to the interpreter from
preparatory work, for consensus is usua1lyreached through informai con
sultations, ofwhich no record is taken. ~--- --------
108 International Law-making 197
Generally speaking, it can be·said that consensus proves beneficiai pro
vided the decision reached is not couched in such equivoèal terms that it
represents only a means of papering over real diffe~e ncheene.er such
a stage is reached, the States concerned would do better to choose the more
clear-cut and straightforward position of calling for a vote, ànd thus deter
mine exactly where the majority and the minority stand. It should be noted
that no format difticulty stands in the way of such an option. Under the
rules of procedure of most international bodies or conferences, whenever a
State wishes a vote tobe taken, it bas a right to ask for it. In sorne instances
the passage from the consensus procedure to the traditional techniques of
decision-making bas been formalized. Thus, for example, the 'Gentleman's
Agreement' of the Third Conference on the Law of the Sea, quoted above,
admitted that when the attempt at reaching a consensus decision failed, a
vote could be taken on a certain matter (the Agreement, however, stipulated
that States 'should make every effort to reach agreement' and that 'there
should be no voting ... until ali efforts at consensus have been exhausted';
Rule 37 of the Rules of the Procedure of the Conference set out a large
number of deviees to defer a vote should consensus fail, and to put pressure
on States to come to an agreement without voting).
Unfortunately, on more than one occasion States have chosen the
short-sighted approach of attaining consensus in spite of unbridgeable div
f.
ergencies.This pays dividends in the short run only, for it creates confusion,
1 in addition to revealing to any impartial observe'r a substantial lack of
agreement. Furthennore, it merely postpones until after the adoption of the
consensus text the settlement of ali the problems the text was intended to
overcome. As soon as the question of implementing international decisions
cornes up, differencèsarise again, with ail the attendant political problems.
A telling illustration of the snares set by consensus can be seen in the
circumstances surrounding the adoption in 1974by the UN General Assem
bly oftwo resolutions on the New International Economie Order. 31
Emphasis -must, bowever, be laid on certain imaginative techniques ev
olved within the Third Conference on the Law of the Sea_for facilitating
and accelerating consensus-techniques which have been termed 'active
3
consensus procedure' (Buzan), z and are primarily designed •to extend the
process of consensus formation'. It is not improbable that they will be
adopted by other diplomatie conferences, thus proving instrumental in pro
moting international co-operation.
: Finally, let me add that consensus, being only a modality of the nego
tiatingand decision·making process, bas no bearing whatsoever on the legal
31 SeeA. Cassese, 'Consensus and Some of its Pitfalls', 58 Rivista di diritto intemazionale,
1975. 756-61.
32 B.Buzan,AJI L 15(Ig8I)32.4ff. International Law-making PARA.
force of the decision reached. The legal standing of the final text is quite
independent of the manner in which the decision is, achieved; rather, it
depends on the general provisions governing the value of resolutions and
other acts of international organizations or diplomatie conferences-pro
visions ta be found in the charter of the organizations or in the tenns of
reference of conferences respectively, as we.IIas in rules of customary inter
national law. Thus, for instance, a decision taken by the Security Council
under Article 25 of the UN Charter is legally binding irrespective of the
modalities of its passing. By the same token, a General Assembly resolution
concerning matters other than the internai functioning of, or membership
in, the UN bas only hortatory value, whether or not it bas been adopted
by consensus. If it fulfi.lsthe requisite conditions for being regarded as an
agreement entered into by ali the States participating in the consensus, this
special status would only follow from the general rules concerning treaty
making. The same holds true for resolutions susceptible to being considered
as evidence of a customary process of international law.
International Law·making in a Divided World
109. ltis apparent that at present ali States agree on a basic nùcleus of
conceptions as to how law is made in international relations. There is full
agreement on treaty-making and on the importance of this source of law.
By contrast, States are divided on the way international custom becomes
binding (§65), on the significance and purport of the 'general principles of
law recognized by civilised nation (s~4), and also, albeit to a limited
extent, on the legal relevance of resolutions adopted by international or
ganizations. Wbereas most developing States tend to attribute quasi~legis
lative force to resolutions, claiming that their 'cumulative effect' can give
rise to binding rules, by contras!, Western and socialist States cling to the
traditional view that, subject to certain well-definedexceptions, resolutions
have a hortatory value only.
33
As bas been rightly stressed by Condorelli, these differences have often
led States eventually to agree upon solutions on a regionallevel. where there
is frequently greater homogeneity, and where it is therefore easier to reacb
agreement. At a universal leve! the. diffi.culty of attaining substantial
arrangements and consequently of passing legally binding rules bas often
brought about the weakening of the legal force of preŒpts resulting in the
creation of so-called 'soft law',that is tosay, general declarations, resolu
tions, acts, agreements, and rules so loose in content as to prove virtually
ineffective.
33 L. CondorellDroit international (Geneva,1984-5), p. 26.4DD8X Il ANNEX Il
1. 1964 UN Juridical Yearbook(JYBl: Dossier 74
• Internai memorandum
Issue:
• Interpretation of section 18(a), 20 and 29(b) of the Privileges and
lmmunities Convention(P& 1Convention).
• This is a civil action, automobile accidents which involved an official
ofthe UN.
• The parties can resort tc arbitration under section 29(P)&o1 the
Convention; nonetheless, it is usually made on an ad hoc basis
permitting the choice of the most appropriate method for each case.
2. 1967 UN Juridical Yearbook: Dossier 75
• Statem meadetby the Legal Counse/ at the101~ meeting of
the Sixth Committee of the General Assembly on 6.12.67.
• Reiterated the principles to be adhered to in the granting of
privileges and immunities (p & i}to the representatives and officiais
of the Organization.
• The role of the Secretary - General in relation to privileges and
immunities of the staff .
• Commented on the 1961 Vienna Convention on Diplomatie
Relations which applies only to the exchange of permanent
diplomatie missions between States. • Commented on the P & l Convention. Noted that the P & l
Convention is of a very special character; a convention sue
genesis.
• Commented on the usage of the ward "Members" rather than
'parties' which only manifests in section 30 & 35 of the P & 1
Convention.
• Emphasized Section 35 of the P & l Convention which
characterized the Members' obligation, such obligation persîsts sa
long as that Members remains and Member of the UN.
• Also reiterated the basis of Article 105 of UN Charter in relation to
the granting privileges and immunity which is deemed ·necessary'
for the fulfilment of the purpose of the Organisation.
3. 1968 UN Juridical Yearbook : Dossier 76
• Memorandum from the General Counsel of UNRWA.
• Scope and effect of the p & i under the P & 1Convention for locally
recruited staff.
• The purpose of the memorandum is ta explain on the p & i ta be
conferred on locally recruited UN staff within the territorv of astate.
• 3 important points were raised:
2 (a) p & i is not meant for persona! benefit of any
individual.as fortified by section 20 of the P & 1
Convention;
The basis purpose of p & i is to ensure the
independence of the individual in relation to his official
acts. This is consistent with the intention of Article 100 of
the UN Charter, which not only embodies the obligation.
of the staff but aIso Member State. Also established that
105, paragraph 2 of the UN Charter has a mandatory
effect.
(b) Explained that p & i under S18 of the P & 1Convention
apply to ali officiais of the UN, except locally recruited
officiais who are assigned on homely rates, decided by
the General Assembly.
(c) Locally recruited staff do not enjoy same extent of p &
i as their expatriate counterpart; this is evident from sorne
provisions in section 18 of the P & 1 Convention; fo~
instance paragraph (f) of section 18 of the P & 1
Convention.
• The memorandum then highlighted the p & relevant to locally
recruited staff which are as follows:
(a) • lmmunity from legal process in respect of words
spoken or written and ali acts performed by them in their
official capacity. [Section 18(a)].
3 The rationale is that when the official is acting in this
capacity, the act is actually the act of the UN and
therefore the issue on nationality is immaterial.
Since it is an act of the UN and if the official is subject to
legal process, hence the UN will be implicated and
consequently the information rested within the official and
also any related documents may be jeopardized. The
memo has given a strict interpretation to S18(a) as the
phrase 'legal process' has been applied in its broadest
interpretation, to include immunity from proceedings of
any administrative bodies or tribunais.
• Nonetheless, the memo also noted that there can
be a borderline case where the act may be "official" or
"non-official" and the UN must reserve the right to make
such decision, based on the finding of facts. However,
such unilateral act on the part of the UN is not without
any assurance of UN's cooperation. One example which
has been quoted as "non-official act" is when the official
is involved in political activities.
Even when an act is official, the immunity can and must
be waived by the SG when such immunity would impede
the course of justice and can be waived without prejudice
to the interest of the UN (section 20 of the P & 1
Convention). lt further states that "The Government can
always ....... , request a waiver in a particular case where
these conditions would be met. Even where the Agency
is not prepared to waive the immunity of a staff member,
this does not mean that no possibilities exist for the
4 .----· ----------
Agency to assist the administrative or judicial authorities
of the host Government.". (ibid at p.213 & 214)
(b) • Exemption from taxation on the salaries and emoluments
paid by the UN (section 18(b).
(c) • lmmunity from national service obligation {section 18(c)
4. 1969 UN JYB: Dossier 77
-.
• .Memorandum to the Chief of the Ru/es and Procedures
Section, Office of Personnel.
• Issue:
Would a delegation of authority includes a waiver of p & i of the
UN?
• lt was opined that the authority to waive p & i is rested exclusively
inthe SG of the UN. This is based on the premise that
".... The charter, the convention on the Privileges and
lmmunities of the United Nations and the Staff
Regulations make it clear that, so far as the United
Nations is concerned, in its relation with staff members,
privileges and immunities are not perquisites of staff
member: on the contrary, they are the prerogative of the
Organization itself and are related to the Organization's
functions, and it is reserved ta Secretary -General ta
determine when they should be waived "(emphasis
added). (ibid at p.255)
(ibid at p.255)
5 • Conditions for waiver of a staff rn the member UN should be
uniformed.
5. 1974 UN JYB : Dossier 78
• Letter to the Ass. To the SG of an international organisation
• Issue:
Whether an internationally recruited staff member having committed
a serious offense within the country of his staff station could be
presented and punished under the law of the country to whose
territory he is returned.
• Laid dawn the p & i of officiais:
UN staff below the rank of Ass . SG, recruited internationally or
locally and whether seconded or not from government service, is
only conferred p & i on acts committed in the course of their official
duties.
• Staff member has no special îmmunity from local prosecution for a
criminal offence. ln the event that staff member is prosecuted, UN
would offer general assistance and good office. At the same time
staff member would also be subjected to appropriate disciplinary
measures under the staff Regulations and Rules of the UN.
• UN officiais, below the rank of the Assistant Secretary General, do
not have 'diplomatie' status under the P & 1 Convention. However,
in sorne countries where UN offices are maintained, senior UN staff
6 ---··- ---
below that levet are accorded with diplomatie p & iby way of special
agreement.
• ln Headquarters Agreements between host governments and the
UN for economie commission ali officiais are immune from 'persona!
arrest or detention'. lt was noted that such arrangement is Jess
problematic.
• The grant of immunity ta officiais is justified in terms of the effective
functionirig of the UN and section 20 empowers the SG ta waive
immunity from arrest or prosecution in any case 'where in his
opinion the immunity would impede the course of justice and can
be waived without prejudice ta the interest of theUN.
6. 1975 UN JYB: Dossier 79
• Internat Memorandum
• This memo merely laid dawn the immigration agreement that UN
had with the US.
• The explanation was made due ta the visa application made by two
nationals on behalf in their family, of a Member State who were
tocally recruited and who bath serve in the General Service
Category at the Headquarters.
• The memo then laid dawn the provisionsof the P & 1 Convention as
weil as the provisions of the Headquarters Agreement between the
UN & the US.
7 • The general provision m the P & 1 Convention relating to
immigration restriction and alîen registration is S18. The
Headquarters Agreement further reflected the modus of the
department of US in dealîng with such issue, as reflected in Article
IV, Section Il and also Article IV, Section 13 of the Headquarters
Agreement.
• The meme also addressed the issue on waiver under article V,
Section 20 of the P & 1Convention.
• Also explained on deadlock situation where waiver of immunity is
refused by UN SG, then it may resort to the dispute settlement
provision of the Headguarters Agreement embodied in article VIII,
Section 21(a).
[Note: The provision in the Headquarters Agreement seems ta provide the
detail mechanism for settlement in the event of dispute relating to the
interpretation or application of the Headquarters Agreement or any ether
supplemental agreement. Provision on appointment of arbitrators is also
spelt out].
• Besides the P & 1 Convention and the Headquarters Agreement,
the American law which is applicable is the United States Code.
From the wording of the relevant provisions, Section 1226 (relating
ta the procedure for the exclusion of aliens) and 1251 (relating to
procedure for deportation of aliens) are not applicable to UN staff
members nor their familias.
• lt concluded by stating that under the P & 1 Convention, the
Headquarters Agreement and the US Immigration law:
8 (i)staff member holding G.4 visas and subject to the relevant
provisions of immunity cannat be subjected to exclusion or
deportation proceedings;
(iithe privileges and immunities granted ta staff is also
extended to family members, who may not be refused a G.4
visas.
7. 1975 UNJuridical YB: Dossier 80
• Internai memorandum
• Issue:
Whether staff member of the UN who is a national of a member
state should be given leave to complete military service.
• Highlighted ArticleV, Section 18(c) of theP & 1 Convention relating
to such issue and also the staff who has a contract with the
organization qualifies him as an official under ArticlV, section 17
of theP & 1 Convention.
• Also looked at the Staff Rules, Appendix C, section C. Despite the
clear provision of 818 of the P & 1 Convention, the Staff Rules
stipulated that staff member who has completed one year of
satisfactory probationary service or who hold a permanent or
regular appointment may be granted special leave without pa't ta
fulfil the military obligation.
9 • Section (1) of Appendix C a!so states that SG of the UN may apply
the provisions of that Appendix where a staff member volunteers for
military under section 18(c) of the P & 1Convention. Hence, it is
the SG's discretionary authority ta either grant leave for the staff
member despite the exemption or waive such immunity. The staff
member may not waive his own immunity.
8. 1976 UN JYB : Dossier 81
• Letter to the permanent Representative of a member state.
• Issue:
UN Security Officer as a complainant in a criminal proceeding.
Should the UN Security officer be subjected ta jurisdictional
immunity?
• ln this letter, it probed into the national court's approach in
determining the action of the security officer, if he has exceeded his
official acts. lt was explained that this is the exclusive power of the ·
SG; to determine the extent of the authority, duties and functions of
UN officiais.
• ln the event that the national court is empowered to make such
determination, itis contended that there will be a mass of conflicting
decisions as the organisation operates in many parts of the world.
• Aise if the national court can determine the limitation of official act,
then it would tantamount to a total deniai of immunity. This is
fLJrtherfortified by the existence of internai disciplinary procedures
JO and also the SG's power to waive after given due consideration to
the said act of the official.
• ln the event that there is a dispute on the waiver of immunity, the
settlement of such dispute can be referred ta the appropriate
procedures for settlement and not by over-ruling the SG's
determination by the national court lt was asserted that the
availability of such procedure weaken the assumption that national
courts has jurisdiction ta determine the extent of immunity from
jurisdiction enjoyed by a UN official acting in his official capacity as
directed by the Secretary-General.
9. 1976 UN JYB: Dossier 82
• Memorandum to the Under SG for Administration and
Management.
• Opined on the conduct of staff member which is governed by the
Staff Regulation 1.4. The staff is obliged at ali times to conduct
themselves in a manner befitting their status as international civil
servant and must avoid any action and any kind of public
pronouncement which may adversely reflect on their status, or on
the integrity, independance and impartiality which are required by
that status.
• Violation of this obligations coufd justify disciplinary action under
Chapter X of the Staff Regulation and Rules, besides any criminal
proceedings.
Il • UN can act upon complaint regarding behaviors of its staff but staff
will be given a right of hearing before any decision ta conduct
further investigation or ta take further action.
• UN officiais do not enjoy diplomatie immunity but only immune from
legal process in respect of their official acts. Clearly such
explanation excludes any non-UN activities.
• On the assertion or waiver of the immunities of staff member it is for
the Secretary General of UN to ascertain and determine it. (staff
regulation 1.8)
10. 1977 UN JYB: Dossier 83
• Letter to the Legal Liaison Offic eNr~lndustrial Development
Organization.
• Issue:
/mmunity from legal process in connection with traffic offences
involving staff member, who is not granted diplomatie immunity,
traveling from home ta the Organization.
• Aise briefly explain on the difference between section 19(a) of the P
& 1 Convention and the Staff Regulation and Rules and also the
basis for the immunity for official acts under the P 1Convention
and the basis for various entitlements under the Staff Regulations
and Rules.
12 • Compensation for injuries and benefits in relation to traffic offenses
provided in the Staff Regulation and Rules are not to be construed
as 'official actions' but is considered as "official on duty'.
• The invocation of privileges and immunity in traffic offences has
been restricted. Resolution 22(1) E has instructed that staff
member should be properly insured against third-party risks and
this has found its implementation in Staff Rule 112.4.
• lt is fothe SG to decide what constitutes official act and also to
decide on the invocation of immunity or its waiver.C clear from the
P & 1Convention and Staff Regulation 1.8).
• Recognised that there is no precise definition on the following
expression ".officialcapacity"
"officialties
"official business"
They are functionaf expressions which are contextual. Also
recognises that the invocation of immunity in traffic offences can
give rise to considerable difficulties in dealing with the police, the
courts and finally entails political consequences.
11. 1981 UN JYB : Dossier 84
• Statement made by Legal Counsel at the Sgth meting of the
Fifth Committee of the General Assembly on 1December 1981.
13 • Made a reference to the report of the Secretary General on respect
for the privileges and immunities of the UN and the specialized
agendes.
(Ale.5/36/31)
• 3 basis issues were addressed:
(a) Draw a distinction between diplomatie and functional
immunities. While diplomatie immunity attached to the
persan, the functional immunity of international officiais was
the Organization.
(b) Who is entitled to privileges and immunities under the P & 1
Convention? The term used is "officiais" and the SG should
specify the categories of officiais to which article V aVil of
the P & 1Convention should apply. lt is noted that similar
provision were provided for in the Convention on the
Privileges and lmmunities of the Specialized Agencies and
the IAEA Agreement. ln 1946, resolution 76 (1)of the
General Assembly approved the granting of the privileges
and immunities referred to in Article V and VIl of the P & 1
Convention should be conferred to ali members of the staff
of UN. excluding those who were recruited local/y and were
assigned to the hourly rates.
(c) Discrepancy in the conferment of p & ito officiais in the UN
Headquarters in New York and ether duty stations.
12. 1983 UN JYB: Dossier 85
• Memorandum to the Ass. SG for General Services.
14 • Issue:
Civil and crimînal liability of members. of Security and Safety
Service and the application of the US laws in relation hereto.
• Stated that under section 18(a) of the P & 1Convention officiais of
the UNis prime facie immune from legal process.
• lt is the exclusive authority of the SG of the UN to determine on the
scope of the action and not to be left to the court.
• The SG can waive immunity based on S20 of the P & 1Convention.
• Also noted the provision for appropriate settlement of dispute
involving the issue on immunity of UN officiais, see section 29(b) of
the p & 1 convention.
13. 1984 UN JYB: Dossier 86
• Memorandum to the Legal Adviser, United Nations Relief and
works Agency (UNRWA) for Palestine Refugees in the Near
East.
• Issue:
Whether the immunity_of UNRWA is a matter ta be judqed under
domestic law or sorne ether system of law.
• Opined that it shall not be judged by domestic law except ta the
extent that it incorporated relevant international obligation.
15 • Highlighted that application of the P & 1 Convention at the
international fora.
• Stated the distinction between organization immunity which is more
restrictive to that of absolute immunity.
• On the immunity of international organisation, it is stated that it
need not be asserted as itexists as a matter of law and tact which
the court has to take judicial notice.
14. 1985 UN JYB: Dossier 87
• Letter to the Permanent Representative of a Member State to
the UN.
• Issue:
Whether a subcontractor who was involved in an accident was
engaged in his official business during the occurrence of the
accident. (*This letter did not deal specifically on privileges and
immlinities of official, rather ta deduce from the facts of the case if
the action is within the meaning of 18(a) ofthe P & 1Convention.)
• Gave an interpretation that any act which is performed by officiais,
experts. consultants. which is directly related to the mission or
project would constitute prima facie an official act within section
18(a) of the P & 1 Convention.
• Jt îs the SG alone who will decide what constitute an official act
Nonetheless, the UN is obliged to cooperate with ali relevant
16 authorities tafacilitate the proper administration of justice and also
to prevent any abuse of privileges and immunities.
15. 1991 UN JYB: Dossier 88
• Memorandum to the Executive Director, United Nations
Children 's Fund.
• Issue:
Determine the decision of the fndustrial Court in refusing to grant
immunity to a former UNICEF employee.
• Also highlighted the UNICEF Agreement 1978 and the P & 1
Convention and reminded that should the state fail to take
appropriate measures to fulfilled their obligations, then such failure
shall tantamount to a breach of the said obligation. This duty to
communicate and remind the other organs of the government,
including the judiciary, shall be undertaken by the Ministry of
Extemal Affairs.
16. 1991 UN JYB: Dossier 89
• Memorandum to the Director, Divisional of Personne/ 1 United
National Children's Fund.
• Issue:
Whether the UN should waive immunity in the case of a UNICEF
Staff Member ta enable her to testify before a commission of inguiry
appointed by national authorities to investigate an accident in which
she was one of the victims.
17 • Highlighted S18(a) of the P & 1Convention of which the state is a
party. ln furtherance ta the said Convention, the state also entered
into an agreement with UNICEF on 5.4.1978.
• Hîghlighted section 20 of the P & 1Convention on the question of
waiver.
• ln the event waiver of immunity is not invoked, UNICEF was
advised ta cooperate with the commission by providing information
that could facilitate its work.
17. 1992 UNJYB: Dossier 90
• Internai memorandum to the Senior Policy Officer(Legal), Division
of Personnel, UNDP
Issue:
• Request for waîver of immunity in connection with the motor vehicle
accident involving a United Nations vo/unteer performing services
on behalf on the United Nations Development Programme (UNDP).
• Legal status of volunteer under the UNDP Standard Basic
Assistance Agreement and the 1946 Convention on the Privileges
and lmmunities of the United Nations.
• Whether the volunteer was acting in an official capacity when the
accident occurred.
18 18. Dossier No. 91 - Unpublished Opinion :
5 May 1982 - Staff
• Intention to acquire permanent resident status, execution of a written
waiver of privileges and immunities, by the staff member.
• Waiver of the immunity of officiais,can only be done by the Secretary
General. The Secretary General has to authorize the execution of a
written waiver of privileges and immunities.
19. Dossier No. 92- Unpublished Opinions
·2 April 1984 - Staff
• Personalloans contracted by staff member prior to joining the United
Nations.
• Waiver granted.
20. Dossier No. 93- Unpublished Opinions
23 July 1984 - Staff member
• Lifting of immunity in respect of private debts.
21. Dossier No. 94- Unpublished Opinions
8 January 1985- Official
• Sued in his capacity as board member of a condominium.
• No immunity.
19 22. Dossier No. 95 - Unpublished Opinions
31 May 1988- United Nations
• Jnsurance c/aim
• Waiver allowed.
23. Dossier No. 96 - Unpublished Opinions
17 November 1989 - Staff member
• Waiver allowed for actions arising from his activities as the administrator of
a bank account.
24. Dossier No. 97- Unpublished Opinion
19 March 1990 - Officiais
• Waiver of immunity - a waiver executed by a UN official without
authorization from the Secretary General would be ineffective under
US law. lt is for the Secretary General a/one ta decide whether to
waive the privileges and immunities granted ta individuals based on
their status as officia/s.
25. Dossier No. 98- Unpublished Opinion
18 May 1992 - Staff member
• Sued by his household employee.
• Waiver allowed.
26. Dossier No. 99- Unpub/ished Opinion
26 April 1993 - Staff member
20 • Divorce proceedings
• Waiver allowed.
27. Dossier No. 100 - Unpublished Opinion
24 January 1995 - Official
• Civil Suit
• Long lasting and uncontested practice that the competence to
determine what constitutes an "official" or "unofficial" act performed
by a staff member is vested solely in the Secretary General. The
United Nations has never recognized or accepted that courts of law
or any ether national authorities of member states have jurisdiction
in making determinations inthese matters.
28. Dossier No. 101 - Unpublished Opinion
20 September 1995- Staff member
• Served with subpoenas ad testificandum.
• Privileges and immunities accorded to the staff members under the
Convention are being maintained by the Organization in regard to
their official activities, the privileges and immunities would not apply
for the staff members activities involving the AIIC.
29. *Dossier No. 102- Note Verbale to the Minister of Foreign Affairs of
Member States.
25 February 1998 - Expert
• A memberof the Board of Trustees of the United Nations Trust Fund
for the Victims of Contemporary Forms of Slavery was arrested by
the competent authorities of a member state.
21 1
i
1
\
• Fo!!owing hearing on 8 and 9 February 1998 the expert was
sentenced on 12 February 1998 to thirteen month detention.
• As a member of the Board of Trustees of the United Nations Trust
Fundfor the Victims of ContemporaryForms ofS!avery,that member
is and continues to be an expert on mission for the United Nations.
• The United Nations maintains the positionthat it is exclusively for the
Secretary General, not for the Government of the member state, to
determine whether certain words oracts fall within the course of the
performance of a United Nations mission.
• ln order for the Secretary General to determine whether the acts
complained of in the charges fall within the performance of his
mis.sion, the Secretary General urgently request that the United
Nations be granted immediate access to the expert.
• The United Nations is a/sa entitled to appear in legal proceedings ta
defend any United Nations interest affected by the arrest and
detention.
• The Secretary General also protested any confiscation of United
Nations documents as a serious violation of their inviolability and
requested a complete inventory of ail documents confiscated and the
immediate retum to the United Nations of any documents belong to
it.
30. *Dossier No. 103 - Note Verbale to the Permanent Representative of a
Member State
27 April 1998 - Expert
• The expert who was sentenced to thirteen months detention by the
22 Member State was pardoned by the President of the Member State.
• As the Government did not permit access to the expert until after he
was pardoned, the Secretary General was unable ta take a decision
on whether the actions leading ta the arrest and conviction were
related ta his official duties until after his pardon.
31. *Dossier No. 104 - Letter ta Expert referred in Dossier No. 102 and 102
from the Chef de Cabinet
27 April1998 - Expert
• The Chef de Cabinet informed the expert that the Secretary General
was unable to assert immunity in respect of the actions which led to
his arrest and convictionsince those actions were not related to his
mandate as an expert.
• The expert's actions to expose and eradicate slavery went
beyond the United Nations mandate to give advice on the
administration of the Fund (United Nations Trust Fund for the
Vi_ctimsof Contemporary Forms of Slave!)').
32. Dossier No. 105- Staff Regulation
• Regulation 1.4 : "Members of the Secretariat shall conduct
themselves at ail times in a manner befitting their status as
international civil servantsThey shall not engage in any activity
that is incompatible with the proper discharge of their duties with
the United Nations. They shaH avoid any action and in particular
any kind of public pronouncement that may adversely reflect on
their status,or on the integrity, independance and impartiality that
are required by that status. While they are not expected to give up
their national sentiments or their political and religious convictions,
23
\ they shall at ali times bear in mind the reserve and tact incumbent
upon them by reason of their international status.".
• Regulation 1.5 : "Staff members shallexercise the utmost discretion
in regard ta ali matters of official business. They shall not
communicate to any persan any information known to them by
reason of their official position that has not been made public,
except in the course of their duties or by authorization of the
Secretary General. Nor shall they at any time use such
information ta private advantage. These obligations do not cease
upon separation from the Secretariat.".
• Regulation 1.8 " "The immunities and privîleges attached ta the
United Nations by virtueof Article 1of the Charter are conferred in
the interestsof the Organization. These privilege and immunities
furnish no·excuse to the staff members who enjoy them for non:
performance of their private obligations or failure to observe
laws and police regulations. ln any case where these privileges
and immunities arise, the staff member sha/1immediately report to
the Secretary General with whom alone it rests ta decide whether
they shallbe waived.".
33. *Dossier No. 114 -·Reports of the Secretary General on "respect for the
privileges and immunities of officiais of the United Nations and the
specialized agencies and related organization.".
UNRWA staff detained in Laban on by the lsraeli authorities - Report of the
Secretary General (25 October 1983)_
• Followingthe lsraeli invasioninto SouthLebanon inJune 1982, more
200 cases of arrestof UNRWA staffmembers in Lebanon by the
than
lsraeliDefence Forces were reported. Sixty eight staff member were
still believe to be in detention on 17 Octob1983, 29 of whorn have
24
\,....--------------------- ~ -------- ---
been reportedarrestedin 1983. Repeatedattempts havebeen made
to obtain informationregardingthe detained staffto secure access to
them and to obtain their early release.
• The lsraeli Foreign Ministry in a reply ta the Acting
Commissioner-General's letter of 14 January made the point
inter alia that no distinction could be made between UNRWA
employees and other detainees regarding visits. ft was also
stated that UNRWA staff detained in Ansar in South Lebanon by
IDF w~re not detained for any activities related ta their official
capacities and that, therefore no question of the infringement of
their functional imrnunities should arise.
• The Commissioner-General wrote in reply on 28 March 1983 to the
Ministry of Foreign Affairs, focusingon the right of UNRWA (a) ta be
informed of the arrest of any of its staff; (b) ta be informed of the
reasons for the arrest so that it might judge whether that arrest
related tc the officialfunctionsof the staffmember concerned; and (c)
ta have access ta detained staff.
• On 3 May 1983, the Secretary General wrote to the Permanent
Representative of Israelta the UnitedNations drawingattention to the
position of the United Nations under international law and to the
terms of the General Assembly resolution 37/236 Band requesting
inter alia that his representatives be given facilities ta visit UNRWA
staff detained in South Lebanon at an early date, ta speak to them
and to assistthem in their legal representation.
• The lsraeli Permanent Representative in New York replied on 13
June 1983ta the Secretai)' General's letter. ln substance,the lsraeli
authorities took the position that they had the right to decide
unilaterally the question of what constitutes an official function
of a United Nations official and that, furthermore, the
Govemment of Israel considered that the United Nations had no
25
\ standing as regards proceedings taken against its own staff
members.
• The Secretary-General, in his reply of 28 June 1983 to the lsraeli
Permanent Representative, noted that the position taken by the
Governmentof Israelwas not in confonnitywith international law and
practice. ln that letter, the Secretary General also referred ta the
recognized principle that it is exclusively for the Secretary General,
as the chief administrative officer of the Organisation, to determine
the extent of the duties and functions of the United Nations officiais.
With regard ta the question of standing, the Secretary General
pointed out that the position of the lsraeli Government was contrary
to the weil established right, under international law of functional
protection of the Organization. ftwas recalled that the 1nternational
Court of Justice had held that international organizations had the
power and responsibilityto protect members of their staff.
• The Permanent Representative of Israel, in his reply of 12 October
1983to the SecretaryGeneral's letterstated that "Israel had detained
certain individuals in Lebanon on account of their involvement in
hostile authorities, either directly or as accessories, with a view to
preventing their invo/vement in further hostile activities which would
endanger the people of Southern Lebanon as weil as the citizen of
Israel. Their detention has no connection whatsoever with their
professional activities, but only with actions which violated their
functions as officiais of the United Nations. lt ls quite
impracticablefor the Government of Israel to attempt ta differentiate
between locally recruited personnel who performed their hostile
actions outside the scope of their functions and ether detainees. ln
neither case is there any immunity.
• ln his reply dated 25 October 1983, the Secretary General drew the
attention of the PermanentRepresentative ta the points raised in his
26
\ later of 28 June 1983 which had not been addressed by the
Permanent Representative stating the fundamental principle of the
internationalcivil service where the Organization's right of functional
protection with regard to arrested and detained staff members that
has been strongly reaffirmed by the General Assembly in a number
of resolution most notably resolution36/232 of 18 December 1981.
• The Secretary General also took note of a judgement which was
given on 13 July 1983 in the Supreme Court of Israel sitting as the
High Court of Justice. The petitioners in this case, the inmates of
Ansar detention had appiied to the High Court of Justice for an arder
directing the respondents, the Minister of Defence and commander
of the camp, to inform them of the legal basisc;>fheir detention and
ta show cause why they should not be permitted ta see their Jawyers.
The court ruled that the respondents were entitfed to arrest and
detain the petitioners in territory occupied by the lsraeli army and
that the detainees were subject to the rules laid dawn in Article 78
of the Fourth Geneva Convention. The Court alsa recorded the
respondents' undertaking that the petitioners would be entitled to
meet their lawyers, subject ta necessary sateguards.
• Taking into consideration aHof the measures and the observations
and judgement ofthe Supreme Court of Israel, the Secretary General
can on/yreiterate his request that the continued detention of UNRWA
staff be urgently reconsidered by the Government of Israel and that
the Organization's right offunctional protection be recognized. The
Secretary General willcontinue ta monitor the release of UNRWA
detainees by the lsraeli authorîties and will provide to the General
Assembly an updated list of UNRWA detainees taking intoaccount
any actions taken since 30 June 1983.
34. Dossier No. 115 - Personnel Question : Respect for the Privileges and
lmmunities Of Official of the United Nations and the
Specialized Agencies and Related Organizations.
27
\Report of the Secretary General (2 November 1989).
• The General Assemblyin its resolution43/225 of 21 December 1988,
ca/led upon the Secretary General, as chief administrative officer of
the United Nationsto continue personally to act as the focal point in
promoting and ensurîng the observance of the privileges and
immunities of officiais of the United Nations and the specialized
agencies and relatedorganizationsby using ali such means as were
available ta him. lt further urged the Secretary General to give
priority, through the United Nations Security Coordinator or his
special representativesto the reportingand promptfollow upof cases
of arrest, detention and ether possible matters relating to the security
and proper functioning of officiais of the United Nations and the
Specialized agencies and related Organizations.
• As was indicated in the report of the Secretary General ta the
General Assembly at its forty-second session (NC.S/42/14), when
staff members of the United Nations and the specialized agencies
and related Organizations are arrested and detained, bath legal and
humanitarian considerationsaretaken into account by the Secretary
General orthe executivehead concerned in seeking access to them.
The legal considerations derive from the relevant international
instruments on privileges and immunities and relate principally
to the determination of whether or not a staff member has been
arrested or detained because of his or her official activities. This
determination must be made by the organization concerned and,
if the organization determines on the basis of visits to the
detained or arrested staff members that the arrest or detention is
related to official functions then immunity is asserted. If,
however, the visiting official is satisfied, bath from an interview with
the detainee and from the charges brought, that the matter is not
related ta official functions, there's no legal basis for asserting
28
\immunity and the legal as distinct from the humanitarian grounds for
further intervention by the Organization no longer exist.
29
/4DDIX Ill ANNEX III
--
COMMONWEAlTH
~' ...'·..·.'.. ... . . .. .
SECRETARY-GENERAL
H. E. Chief Emeka Anyaoku, c.O.N.
CircularLetter No.42/95 5 December 1995
Re - Commonwealth Law Ministers Meeting
15-19 April, 1996, Kuala Lumpur, Malaysia
1. You will recall that when Commonwealth Law Ministers last met in Mauritius in 1993
they accepted with great pleasure the invitation extended to them by the Government of
Malaysia to host their next meeting. I have beard from the Govemrnent of Malaysia that the
most convenient dates for it will be from 15 - 19 April 1996, and consultations with Law
Ministers have indicated that these dates are broadly convenient for most Ministers.
Accordingly, 1am pleased.to confirrn these dates as the dates for the Meeting.
2. The question of the possible agenda for the meeting was given preliminary attention
by Senior Officiais of Law Ministries when they met in Malta in May/June 1995. I have
reflected on their suggestions, particularly in the light of legal developments since your
Mauritius meeting and set out below what I trust will prove to be a sufficiently thought
provoking agenda for your meeting.
3. When Commonwealth Heads of Govemment met in Auckland in November 1995
(CHOGM), they took a number of significant decisions sorne of which impact directly on
your work. The Milbrook Commonwealth Action Programme on the Harare Commonwealth
Declaration will, I believe, have a special significance to Law Ministers for years to come.
The essentials of the fundamental political values in the Harare Declaration are embedded in
and expressed primarily through legal institutions.
4. I therefore very much look forward to your Meeting continuing the tradition of
furthering your role as standard-setters particularly in developing relevant aspects of
Commonwealth mutual legal assistance. Over the years, the achievements of the Law.
Ministersforum have been truly remarkable and it would be natural to expect that this would,
in time,broaden into even a much wider and deeper mutual legal assistance network between
Commonwealth jurisdictions beyond what already exists.
5. Against this background, and bearing in mind the recornmendations made by Senior
Officiais at their Malta Meeting, I would suggest for your consideration the following outline
agenda:
.../2
MARLBOROUGH HOU SE PALL MAU LONDON SW1 Y SHX
.,,.,_ ...., ...-,...--.---_.....,.~.•·•....••,,.,
TEL: Switchbo<trd (~~) 0171 113<):4~11 Oir<!CILine (~~) 0171 747 l>103
FAX: (44) 11171 ')30 2299 CAilLES: COMSECCEN LONDON SWl TELEX: 27b711 - 13-
11. The Federal Constitution also bas provision to ensure that the dignity
of the courts and judges are always maintained. It is the power given to
the superior courts to punish any person for contempt of itself. Article
126 of the Constitution provides that the Federal Court, Court of Appeal,
or the High Court shall have the power to punish any contempt of itself.
In Attorney General & Ors. v Arthur Lee Meng Kueng 0987) 1 MLJ 206,
the then Suprerrie Court made the following observations:
"In this country the ·needto protect the dignity and integrity
of the Supreme Court and the High Court is recognised by
Article 126 of the Federal Constitution... A proper balance
must therefore be struck between the right of speech and
expression as provided for in article 10 of the Federal
Constitution and the need to protect the dignity and integrity
of the Supreme Courts in the interest of maintaining public
confidence in the judiciary 1• - 3 -
asked to keep under review. At their meeting in Malta, after an exhaustive discussion
of reservations expressed by Singapore, Senior Officials agreed a draft Revised
Statement on Mutual Assistance between Business Regulatory Agencies which
Ministers will be asked ta adopt.
(v) Money Laundering:
You may recall that pursuant to the concern expressed by Heads of Govemrnent that
Commonwealth countries should join the international efforts to combat the laundering
of the proceeds of ail serions crime,Law Ministers for theipart resolved at Mauritius
ta put into place comprehensive laws to combat money-laundering. To facilitate this,
and at the request of Ministers, the Secretariat hasprepared a draft modellaw which
hasbeen circulated to govemments. Ministers may wish to keep this model law Wlder
review. In this respect, it may be reca1led that at Mauritius Ministers asked senior
officiais to work out and adrninister a system for self-evaluation of progress in
implementing anti-money laundering measures, in panicular the 40 recommendations
of the Financia1 Action Task Force.
(vi) Transborder insolvency:
Many law officers share responsibility for ensuring that the enforcementof the regime
for the operation of business, including particularly corporate bodies, is conducted
strictly within the confines of the law. The globalisation of businesand in particular
the growth of regional trading blocks has highlighted the problems that can be created
by transborder insolvency, including corporate insolvency.
(vii) IntellectualProperty Rights: The legal implications of the Agreements on Trade
and Intellectual Property Rights arising from the conclusion of the Uruguay
Round:
For many states whether they are party to imponant multilateral treaties which would
serve their national interestsweil will often depend on an appreciation of the full
implications of such treaties. In sorne instances, analysing thefull implications ofa
complex treaty such as the GATI and the establishment of the World Trade
Organisation could be extremely burdensome for sorne, particularly small states. The
inclusion of this item bas arisen in pan from the wishes of the last Meeting of Law
Officers of small Commonwealth Jurisdictions held in Namibia.
(viii) A review of the activitiesof the Commonwealth Secretariat in the legal field:
This is a regular item on the agenda of Law Ministers Meetings providing, as it does,
an opportunity for Ministers to assess the usefulness to them of the Secretariat's legal
activities andthe extent to which they have been relevant to the contemporary needs
and expectations of governments. The review will include a consideration of the full
Report of the Malta Senior Officiais meeting. It will also give Ministers an
opponunity to provide the Legal and Constitutional Affairs Division with guidance as
to future work plans.
.../4 - 4 -
6. Following, as your Meeting does, almost immediately on the heels of the Auckland
CHOGM, it may be thatyou will also wish to consider ethermaners remined to yeu by
Heads of Govemment which may not have been included above.These rnight include, for
instance, the specifie request thatMinisters keep under review developmentsin the work
being undenaken by the United Nations on the possibility of establishlng an international
criminal coun, and the reconunendation urging the ratification by member govemments of
human rights covenants and ether international conventiosuch as the Convention on the
Elimination of Ali Fonns of Discrimination Against Women and the Convention on the
Rights of the Child.
7. These, then, are sorne my prelimînary thoughts about the tapies which I femay
commend themselves to you and your colleagues for your consideration. I would naturally
welcome any comments you may wish to make regarding these suggestions, and in particular
any ether itemseu would Iike to suggest ought to be considered for inclusion in the Agenda.
9. 1 am writing in identical tenns to thLaw Ministers and Attorneys General ofali
member countries of the Commonwealth, and to those of the dependent territoriand look
forward to hearing from you soon bearing in ·mind the datethathave been agreed for the
meeting. Howeve ifr~have not beard from you by 5 January 1996, 1 shall, in accordance
with customary practice, assume that the draft agenda tapies proposed here are acceptable to
you. AGENDA ITEM NO. l(a)
ADVANCING COl\fMONWEALTH FUNDAMENTAL VALUES
TITLE OF PAPER: LMl\1(96)22
INDEPENDENCE, QUALITY AND STATUS OF
JUDICIARY IN CO:MIVIONWEALTHCOUNTRIES
Researched by:Dato' Stanley Isaacs
Ihthagin n Pen&sAn tarabt. ngs:a - 2-
TOPIC OF PAPER: INDEPENDENCE, QUALITY AND STATUS
OF JUDICIARY IN COl\fMONWEALTH
COUNTRIES
COl'viMENT ARY:
This is a paper that wasprepared for the Commonwealth Secretariat by an
officerof the Attorney General's Department Australia.
2. The paper recalls the varions declarations made ate highestlevel
at various Commonwealth Conferences and Meetings since 1991 which
pledged and reiteratethe commitment of members inter alia, to the
principles of the Rulof Law and the Independence of the Judiciary. The
basic declaration is reflected·. inthe 1991 Harare Commonwealth
Declaration. That Declaration is regarded ashe corner stone declaration
of the Commonwealth in relationto such values as the protection and
promotion of democracy, the rule of law and the independence of the
judiciary, fundamental human rights, including equal rights and
opportunities for ail citizens regardlessace, colour, creed or political - 3-
belief. The Declaration also called for cooperation of members State with
a view to entrenching the practices in those areas.
3. In Millbrook New Zealand, in 1995 the Commonwealth adopted an
action programme (1995 Millbrook Commonwealth Action Programme) to
fulfil the commitments contained in the Harare Declaration, whereby inter-
alia the Commonwealth Secretariat would provide advice, training and
other forms of technical assistance to Governments to promote inter alia
to strengthening the rule of law and the independence of the judiciary
nthough the promotion of exchanges among and training of the
judiciary ......
4. The paper stresses the importance of an independentjudiciary which
is ableto exercise its powers without interference and undue influence of
the executive. The paper also recognised that national interests, visions
and aspirations is enhanced when the judiciary in each country can
perform its judicial functions independently. -4-
5. The paper recalls the 1992 Lusaka Statement on ..Govemment
under the Law", which inter-alia opinionatedthat on a daily basis, it is the
responsibility of the judiciaryto hold the executive accountable under the
Rule of Law and "to ensure (on thepeople's behalf) that Government talees
place on a constitutionalbasis and under the law."
6. The paper emphasizes importance of maintaining ·the dignity and
status of the members of the judiciary and that such status ought to
commensurate with·its role in supporting and entrenching the rule of law.
7. The paper noted thatthe steps tak:enby eachCommonwealth country
m the establishment, ;maintenance, preservation and safeguarding the
independence and status of the judiciary differ from one country to
another.
8. It is also recognised that each Commonwealth country is free to
establish its judiciary as it seems fit within its constitutional framework.
There is therefore no necessity for uniformity in the development of the
status and independence of the judiciary.,----------------------------------~ -~ - -- ------ ~-~--~~-
~-··-·-·---- ··-----·-··-~·----
- 5-
9. The paper has also proposed that Ministers in the Kuala Lumpur
Meeting agree to the establishment of a Wor king Party that would study
and report to the next meeting of. Law Ministers on the state of
development and ·practice on various matters which fundamentally affect
the reality or actuality of the independence of the judiciary in member
countries. This work is towards implementation of the 1995 Millbrook
Commonwealth action Programme referred to earlier. - 6-
MALAYSIAN POSITION
Malaysia has consistently supported every Commonwealth Declaration or
statement on the broader principles of the Rule of Law and the
Independence of the Judiciary and we have been able to do this without
hesitation because they are not oniy practised but guaranteed by the
Federal Constitution and the laws of the country.
2. Like in most countries that practiceparliamentary democracy, the
Judiciary in Malaysia is one ofthe threeseparate branches of government,
the ether two being the Legislature and the Executive. The constitution
gives judicial power exclusively to the courts of the country namely the
federal court, the court oappeal, the two high courts and the lower courts
establishedby federal law. Judicial power means power to hear and
determine in accordance with the Constitution and federal laws, actions
against the person under the criminal laws; disputes about legal rights
and liabilities which includes disputes between the federation and -7-
a state; between state and state; between citizen and the federation or a
state and between citizen and citizen. No ether branch of Government has
this power and in rare cases where it is given this power, its decisions are
subject to review by the judiciary.
3. While there is no real separation of powers between the legislature
and the executive by reason only of the characteristic of parliamentary
democracy such as is practised in Westminster, there is real separation of
powers between these two branches on the one hand and of the judiciary
on the other.
4. An important feature of the Malaysia judiciary apart from
irnpartiality is it independence i.e. freedom from control by either of the
two branches or indeed by anybody. The constitution secure this
independence by providing that: 1
(1) :Introduction to the Legal System of Malaysia by Tun Mohammed Suffian P. 51.
Federal Constitution Art. - 127 -~
- 8 -
(a) a judge of the federal court, the court of appeal and of the
high courts hold office not at the pleasure of the Yang
DiPertuan Agong like members of the general public service.
Once appointed he may not be dismissed (by the King) before
the compulsory retiring age of 65 years except only on the
grounds of inability, from infirmity of body or mind or any
other cause, properly to discharge the functions of his office
or on the grounds of any breach of any provision of the code
2
of ethics for judges, and then only on the recommendation of
an ad-hoc on tribunal appointed by the King. The tribunal
would consist only of judges i.e. five serving or retired
3
judges.
(b) a judge's remuneration is provided for by Act of Parliaments
and is charged on the Federal Consolidated Fund, which
means that once fixed by the Act it is not subject to annual
debate and approval by Parliament and is therefore payable
4
automatically.
1. Article 125(1)
2. Article 125(3) (3A)
3. Anicle 125{4)
4. Anicle 125(6) - 9-
(c) a judge' s remuneration and other terms of office (including
pension rights) may not be altered to his disadvantage after
his appointment. 1 There is a separate statute called theJudges
Remuneration Act 1971,. that provides in detail the
remuneration of Judges, pensions rights and other conditions
of service.
(d) unlike members of the public service who are eligible for a
2
pension, a judge is entitled ta his ;and
(e) the conduct of a judge may not be discussed in either House
of Parliament except on a substantive motion of which notice
has been given by at least of quarter of the total members of
that House and shaH not be discussed in the Legislative
Assembly of any State 3•
1. Article 125(1)
2. Article 125(6A)
3. Article 127~=--·--------------·-----------·----· ·---·-··· .-·-·
-10-
7. It should be emphasised that a judge may only be removed by the
Yang DiPertuan Agong, and no one else. The detailed procedures are
provided for in the Constitution. They are as follows:
(a) The Prime Minister, or the Chief Justice of the Federal Court
after consulting the Prime Minister, may represent to the
Yang DiPertuan Agong that a judge ought to be removed on
any of the specified grounds.
(b) The yang DiPertuan Agong may, after receiving the
recommendations of the Tribunal, remove the judge from
of:fice.
8. Transfers of judges from one place to another are decided not by the
government but by the Chief Justice consultation with the chief judge of
2
the high courts concemed. This is significantin that a judge who gives
1. Article 125(3)
2. Article 122C - 11-
judgement unpopular with the executive cannat be punished by way of a
transfer to a place unfavourable to the judge concemed.
9. The checks and balances built into the Constitution are well
1
illustrated by the system of appointments of judges of the superior courts.
They are ali appointed by the King but the King is duty bound to:
(a) consult the Conference of Rules; and
(b) act on the advice of the Prime Minister.
The Prime Minister's right to advice the King is not absolute. He
has to consult the Chief Justice. Usuall y the nominations emanate from
the Chief Justice. Further, in the appointment of the Chief Judge, the
Prime Minister is also required to consult the Chief Judge of each of the
High Courts concerned. In the circumstances, these constitutional checks
and balances ma.k:eit difficult for one man ta pack the judiciary with
judges of his personal choice.
'
1. Article 122B. - 12-
10. Appointment to, and tenure of office of those in the judiciary of the
lower courts is also free of executive influence and interference. A
Session Court judge is appointed by the King on the recommendation of
a Chief Judge of the high court. A first class Magistrate for a Federal
Territory is appointed by the King and for a State by the ruler or govemor
respectively, in each case also on the recommendation of a Chief Judge of
the High Court. The Judicial and Legal Service Commission only appoints
officers to the judicial and legal services. It does not appoint them as
Sessions Court judges or Magistrate. These officers are completely
independent in the discharge of their judicial function even thougthey are
by virtue of their appointment classified as civil servants in the public
service. Nevertheless it is significant that the Judicial officers are under
a separate and independent commission from that of the general civil
service, the members of which, with the exception of the chairman and the
secretary are senior judges of the superior courts and the Attorney
General. - 13-
11. The Federal Constitution also has provision to ensure that the dignity
of the courts and judges are always maintained. It is the power given to
the superior courts to punish any person for contempt of itself. Article
126 of the Constitution provides that the Federal Court, Court of Appeal,
or the High Court shall have the power to punish any contempt of itself.
In Attorney General & Ors. v Arthur Lee Meng Kueng (1987) 1 MLJ 206,
the then Suprenie Court made the following observations:
11
ln this country the ·need to protect the dignityand integrity
of the Supreme Court and the High Court is recognised by
Article 126 of the Federal Constitution... A proper balance
must therefore be struck between the dght of speech and
expression as provided for in article 10 of the Federal
Constitution and the need to protect the dignity and integrity
of the Supreme Courts in the interest of maint.aining public
confidence in the judiciary". - 14-
12. Unlike say in England where parliament is supreme, and the validity
of the laws made by it are unquestionable in Malaysia the Constitution is
supreroe and it is therefore the role of the superior courts to determine if
the laws made by the legislature is valid and sustainable. Subject to
certain condition, the superior courts have power to declare a law
unconstitutional and hence void. The Courts also have power to declare
any act of Government to be unlawful.
The responsibilities which a court carries in a country with a written
constitution such as in Malaysia are enormous- rouch more onerous than
the responsibilities of a courtin a country without one. ln Malaysia the
task of interpreting the constitution is given to the courts because of the
feeling that a system based on a written constimtion can hardly be effective
in practice as an authoritative, independent and impartial arbiter of
constitutional issues and also that itis necessary to restrain governmental
organs from exercising powers wbich may not be sanctioned by the
2
constitution.
2. M.P. lain- "Role of the Judiciary in a Democracy"
Journalndang·Undang [1979]. - 15-
13. The recommendation by this paper writer to establish a Working
Partv to study and report on the reality and actuality of the practice of the
independence of the Judiciary in member countries, should be welcomed
by Malaysia. This is because the situation inMalaysia in respect of the
areas to be covered by the study are in a comparatively favourable state.4DD8IV ANNEX IV
.,~·~··--.~_·_:4..... -:•'"·.-"..·--··
UNITED NA TI ONS
the Jurists' recommendation for a special régime for host countries was one
which he did not accept. 167
Conviction and Suspicion of Members of the Secretariat on account
of Subversive Activities
A member of the Secretariat who engages in subversive activities against his
own or any ether Government violates the standards of conduct incumbent
upon him and should be discharged. What weight is to be given by the
Secretary-General in hisfin ding that a member .of the staffhas so acted to the
fact that the latter bas been convicted by a national court of a crime involving
subversion? 168 The Commission ofJurists advised that "where there has been
sU.ch a conviction the fact of the crime is ipsofactoestablished,••that ••it is res
169
judicaUJ, "nd that it "should be accepted assuch by the Secretary-General. " '
The fust Secretary-General. in affirming that there must be "reasonable
ground" for believing accusations of subversive activities- that charges "must
1 be supported by a preponderance of evidence" - stated that the Secretary
! General "should give proper weight" to nationallaws and legislative findings
\ and to the findings of fact of national courts and tribunals, in addition to the
1 evidence of the facts of each case. 170 He thus seemed to modify the Jurists'
j view that the decision of a national court ipsofactoestablishes the fact of the
l crime by allotting to that decision "proper" rather than conclusive weight.
. His successor stated that "the conclusions of national authorities conceming
1 activities by staff members, are, of course, not binding on the United Narions,
/ which must apply its own standards," but that ".national findings of fact,
t arrived at in accorda.Dce with generally recognized requirements of due
1
J process oflaw, are entitled to weight." 71
167Seo::nited Nationsdoe.AIPV.421. p. 661.
115A mcmber of the ruf'f oSovietnation.:aEty, Valentin Gubirch~v,çonviaed of e$pionagc in me
United States:md allowcdby Ameriçm aurhoritio::sro !Ctheœm:~t (sec Urmct. uw v.Copltm tl
.zl.,84 f. Supp. 472. :md SpcnŒ. ''J\Iri$diaional Immunîty").
169United Nations doc.A/2364,p.26.
110
See United Nations doc. A/2364. p. 13. ïlUs. $Undard," Mr. Lie bter added. "sbollid, I believe. be
appücd ... in o;omplerindcpendeno:of any n:ational proceeding. The:standard is a United Nations
:lbnd.at:md W01.11be appiicd by United Nations org:ms" (United Nations doc. A/PV.421, p. 661).
171
United Nations doe.A/2533,p.22. .A convictionbya national eoun,theSecrewy-Gc:nc:raladdcd.
"will uswlly be pc:rsuuiverndenΠof the eommission of theact for which thedefendant was
PfOSCCUte ••d• Howcver, the Org:mizatim~m n:main frŒco takc no acŒunt of convictions ...
nudc withouto~œ of the gc:nenlrccognizcdn:quirementsof ducproccsofbw" (ibid.p.24.
See above.note t 19.). A number of deJegations coune~utid aganirutthautomatic acccptmcc of
nationalcriterin thisnspcçrSeot:e rutement ofrhcDdcgates ofN~ Zc:al:md(AIPV.4t6. p. 561).
lndi:i {ibid., p. 567), Bdgi(ibid., p. 571). Swcden (ibid., p. 573). Norw;oy (ibid.• p. 576), the
Net:hcdmds (AJPV.417, p. 584), Indonesia (NPV .419. p. 620). and Yugoslavia {AJPV.421. p. 660). SŒ
286 -·---·
InternationalCharacterof the Secrett11iat
host countries was one The Seaetary-General may perhaps be expected to seek to avoid occasions
-._ for implementing these theories which he righcly affirms. His concern for the
confidence which the Secretariat must enjoy, for the public standing of the .
~etari ant account Organization as a who le, and for his political responsibilities under Articles 981./'
172
and 99 of the Charter, will impel him, as a matter ofpolicy, to defer to thev
laws and judgments of courts of Member States. He may hesitate to exercise
ive activities against his his discretion against the views of a complainant Govemment, except in cases
c ,..conduct incumbent
in which the member of the staff is patent!y the victim of unreasonable or
i~ :o be given by the
arbitrary process. Whatever the defects of the concept of the "host country," v
staffhas so acted to the it is evident that the difficulties are much greater in cases where the staff
1r1 ofa crime involving
~emb ierrsident in the State which finds him guilty of a crime involving
" ·herethere has been 173 174
subversive activities, or, for that matter, of any other crime. whether it is
:blished," that "it is res the country of his nationality or not. As with the submission of information
S. retary-General. "169
by Governments, the actual degree of independence enjoyed by the Secreta
1 :nt be "reasonable
riat may be limited unless the Member States join the Seaetary-General in
es- that charges "must mutual support oftheir obligations under Article 100.
e<' iliat the Secretary There may be instances of charges or conviction of members of the staff for
Lrl legislative findings
subversive activities which the Secretary-General clearly would have to
Ia!s,in addition to the receive with especial caution. The Charter and the Staff Regulations may not
tc nodify the Jurists' normally be interpreted tojustify the dismissalof a staff member who is found
Lb iliesthe fact of the
guilty by a successor Govemment of "subversive activities" against it while
anconclusive weight. that Govemment bad not yet "succeeded"; a succession or a change of
.u •.orities conŒming Government hardly enti.tles a State to request dismissalof its nationals who
1:1 teUnited Nations,
preferred or prefer the former Government. lt would be for the Secretary-
::malfindings of fact,
also Friedmmn, "The United Natiom and National LoyaltiesInttmcti<mQ/jo:nm(ll9S2-19SJ)8. 1,
tt uirements of due pp. 22-25, md Friedmann md othcrs, "Loyalty Tests md che United N:atioSe=riat," C""adian
&r Rtuitw (December 1952), pp. 1080-1083. Forpointof viewdose to t:h:of thComm.iW.on or
Jurists, Œe tstat:ememsoftheDdegates offrana: (A/PV-418, p. 607}and China (ibidp.615); and
sce Cohen, "Ptclîminary Appnisal," on the French view.
m SecScbwebel,&CRt47]>-Gtnc-.. /p. 19-30.
I:IJeŒd of o:spionage ithe l73A possibilicy of evîdcnt:ly lirnited appwould be thettansferosuch a staff member topo;mi:
(s..Ullitd St.ws u. Copùtl anot:ha country (for comment ondûs point: sce che Opinion of the Commis:$ion of Jllri$ts, United
Nations doc.A/2364, p.26).
If the member ofthesuffisconvic:tcd.bthe organsof theSU.tein whichbeisresidentbe m;y of
d i.Mshowd I.bdieve. be coune be subjecr: immediate imprisonment; indeed,he migbt be:dctainedbefore aial.A host
ta.~ is a United Nations
;ms doe. AIPV.421, p. 661}. country bas thepower to Œf"oreeiu jurisdiaio311dexecute its judgmcnu whicb otha Member
~. - :aetary-Gcner.r,j addcd, Sbtes b.ckbatring vohmtary submi$sion to thatjurisdiaor extradition {whiwould not apply to
politicaloff=), or che:auertion ofjumdiaion ovc:rtheirnationalswhen on home k:ave. The
1iebthe defcnd.tntwas jarisc:lîaiof ali Memm State5 is limited btheimmunity of staffm=nbc::nfrom legalproŒssin
M...Wnt of amviaion 5•••
~ ofbw" (ibid.,p. 24. n:speaof ali aapaformed bythemin tbeirofficialcapacity.It would apptobeiimitedfunher by
t' mtomatil; ao:Œptaneof Article 100,insofar pr05eel:lrifor~mofti amcim.uttbein good faithandnot cksignc:to cxm
preuureupon thestaff mcmber 9W1staffmernber. . - ;.L
~-"ii (AIPV.416, p. 561}. m Conviction of a member of theuaff by 311YGovcmmŒt foreriltlCothcr thanthose rclatedto : ~;,
r,_- -~ (ibidp. 576), the
l' - "PV.421p.660). Sce subversive aaivitie$ misoreflcaupon his int<::gritytheoonduet ino:umbc:nupon him astocaU
fothis disnlisW. - ;·
287 UNITED NATIONS
General to judge whether the political activities for which the staff member is
charged or convicted were in breach of his obligations asan international civil
servant. Counter-revolutionary acrivities m.ight weil be so judged, not
because the revolution was successful, but because the staff member is
required to abstain from political action, whatever its direction. An accu
sation or conviction of a member of the staff for subversive activities c::arried
on before hisappointment would be weighed by the Secretary-General with
particular circumspection. The staff member could not have been guilty of a
breach of the Staff Regulations prior to his appointment; however, bis
subversive activities in the past, if proven, may ordinarily be reasonably
judged to reflect on his present integrity. 175 If the Secretary-General confines
his definition ofpast subversive activities nonnally refiecting on the present
integrity of the staff member concemed to •'seriousand generally recognized
offences such as espionage or sabotage... as the Secretary-General suggested,
there should be no difficultyP 6 It may be suggested that allegations by
Governments of past subversive activities, vîewed through the limits of that
definition. would lead to few, if any, dismissalsof staffmembers.
A particularly delicate question tums upon the alleged likelihood of a
member of the staff engaging in subversive activîties. The Commission of
jurists advised, and the fust Secretary-GeneraJ agreed, that the· Secretary
General should not retain a staff member if he has "reasonable ground for
believing that the staff member ... is likely to engage in subversive activities
against the govemment of any Member State." 177According to the fint
Secretary-General, for a finding that a staff member is likely to engage in
such .activities, "something more than a remote possibility of his doing so
must be shawn. Of neŒssity, such a finding must be largely based upon the
staff member's past conduct. However, convincing evidence that in the past
an official had engaged in subversive activîties would not necessari.Iylead to a
finding that he was likely to beengaged in such activîties either at present or
in the future. Later conduct and attitudes might show there was no likelihood
ofhis engaging in such activities again." 178
175
lhat Ibiwill not nea:ssarilmebeasisshown by Rolin,AlllisoOpinim,pp.33, 54-55. Sedt=
cornments of theSo:ttcary..Gcnc:United Nations doc.A/2533, pp.12, 2I,Z2. :and of the
Commission ofjurisu. UniteN:~t iocA /2364. p. 28. ·
1~ Seeabovc, notl 13Elscw~ inthenportth<:rdccd.bowevcr, the Sc:crcr:vy-G:ncnldeclartd that
Sl,lbvemv~viri ruy be ..prop:rddined:aw:tsdone intheWt report of the Secretary-Gm.ml
on penonnd policychatis. '[aaivitilfuectedtowucb the overtbrow oh government by forçe,
i:ndudmg eonspiraey row:zrcù ovcnbrow and incitement mdadvcx::ayfit'"(United N:iitions
doc:Al2533,p.21).Thb definitiowouldllppeitogo bcyond C$pioruig:cs;tbot C o~sge::ty,
in~rtic: iu1ltrl,tona::pt of consideelastic:ity.
,.,.,.United N:nid=s A/2364, p. 13. The CommŒon ofJuristrcstri<;tits refereno: to the
Govemmçnt of my bon St:atc.
l7United Nations doeN2364, p. 13.
2884DDIV ANNEX V
THE
BRITISH YEAR BOOK OF
INTERNATIONAL LAW
1971
FORTY-FIFTHYEAR OF ISSUE
Puhlifard
THE ROYAL INSTITUTE OF
lNTERNATIONAL AFFAIRS
by
LONDON NEW YORKTORONTO
1
"973 THE INTERPRETATION OF TREA TIES BY
DOMESTIC COURTS*
By C. H. SCHREUERl
!NTRODUCTORY
A STRIKING feature of the many academie writings on the interpretation
of treatiesz is the disregard of the aspect of the problem that arises before
3
municipal courts. Likewise in the deliberations that led to the drafting
of what eventually became Articles 31-3 of the Vienna Convention on the
Law of Treaties, bath in the International Law Commission and at the
conference, there is little that suggests awareness that by far the greater
part in the judicial interpretation of international agreements falls to muni
cipal, not international, tribunals; and even the Institut de Droit Inter
national in its discussions on treaty interpretation in 1950, 1952, 1954 and
1956 concerned itself almost exclusively with interpretation by govem
5
ments and international tribunals.
In examining the practice of domestic courts in different countries, it is
intended first to ask bow far they are authorized to interpret treaties in
their respective municipal legal systems, and then to deal, in order, with
the relevance of domestic law in treaty interpretation; the argument on the
priority of text or intention; the so-called teleological approach; and finally
the rule of liberal or extensive construction and the principle of restrictive
interpretation.
lt is sometirnes said that different standards of interpretation apply to
• © C. H. Sehreue•, 1971.
' Dr. Ju.r.(Vienna), LL.B. (Cantab.), Assistant Lecturein Law, University of Sal.zburg.
• For a comprehensive lisseeStrupp-Seblochauer, Wortnbuch des VIJlkerreehts,vo3, pssz.
See also the list given by R. Bernhardt in Zeitsd:rfiiTauslandisches o.ffentlic&~:h tnd
Volkuredit (ZaôRV), 27 (1967), p. 492.
3 Asto the relatively few exceptions sJ.Basdevant, 'Le rôle du juge nntional dans l'inter
prétation destraitésdiplomatiques',Reuue critiqude droit mternaûonalprivé (I949), p. 413;
W. F. Bayer-,'Auslegung und Erglinzung international vereinheitlichter Nonnen durch staatliche
Gerichte', Zeitsduift fü.r auslandiscund intemationales Pmatrecht (RabelsZ), 20 (1955),
p. 603; J. Benoist, 'L'interJ)rétation dtraitéd'après la jurisprudence française',Rzmu!
helléniqude droiinturna.tiona,(1953), p. IOJ; C. C. Hyde, 'The Interpretatiof Treaties by
the Supreme Court of the United States', American Jou.mal of InternationaLaw, 23 (1929),
p. 824; F. A. Mann, 'The Enforeement of Treaties by English Courts', TransactiJmsof the Grotius
Socirty, 44 (1958{9), p. 29; Lord McNair, TheLaw of Treaties (1961); I. M. Sinclair, 'The
Principles of Treaty Interpretatiand their Applicationby the English Courts', International
and Comparative Law QutuUrrly,12 (1963), psoS; O. C. Giles, Unifonn Commercial Law (1970);
I. Seidl-Hohenveldern., in FesuchriftfoAlfred VerdrOS$(1971), p. 479. The lasttwo works
appearecl after this ll.rticlewas completed. .
~Annuaire del'Institut de Droit Internotûmal (Anmuzire), 43 (195o-44 (1952-l and II),
45 (1954-I) :md 46 (1956). • But see A. N. Makarov's remarks, ibid., 43 (I95o-p. 447· 256 THE INTERPRETATION OF TREATIES
'law-making treaties' (traités-lois) and 'contract-treaties' {traités-contrats).r
This distinction, however, seems to have been abandoned by most writers,z
the International Law Commission rejected it in drafting the articles on
3
interpretation in the Vi enna Convention ; furthermore municipal courts
do not seem generally to have employed this distinction. Accordingly, this
paper does not adopt it.
I
COMPETENCE TO lNTERPRET
The power of domestic courts to interpret international agreements, and
their independence from the executive4 in doing so, is subject to a variety
·of regulations in different countries.
5
It is a well-settled rule of English law that the courts will not accept a
treaty as a source of law unless it has been incorporated into the law of
6
England by legislation. This principle, which found its classical expression
in the case of The Parlement Belge' was fonnulated roost clearly by Lord
Atkin in Attorney-Genera/for Canada v. Attorney-Genera/for Ontario:
Within the British Empire there is a well-established rule that the making of a
treaty is an executive act, while the performance of its obligations, ifthey entail
alterationof the existing domestic law, requîres legislative action. Unlike some other
' For an extensive discussion see S. Neri, Sull'interpreta;:iodd trattati nel diritto inter
na.:riona(t9;;8), pp. zetseq., and J.Soubeyrol, 'The International Interpretation of Treatîes
and theConsideration of the Intention of the PartieC~t, Ss(zg;;S), p. 687, at pp. 699 et seq.;
also A. Alvarez in A1111w:lir, (1952-II),p. 366, and C. Rousseau, Principesgénéraux de droit
inumatirmal public (1944), pp. 676 et seq. and in Armuaire+4 {l;9sz-II), p. 378.
z G. Balladore Pallîeri,Diritto internazionalepubb(8th ed., 1967), pp. Soet seq.; P. Guggen•
heim, T~ai dea~o international public, voI,p.2.49; H.Lauterpacht in Annuaire, 43 (l9so--I),
pp. 374-,4-34;Lord McNair, op. cit. (above, p. 255 n. 3), p. 366; Sir Humphrey WaidinkYear
book of theIntemation.al Law Cummission (1964-Ii),p. SS· Cf. also & Ri~~ o..R. z9 (z9sz),
p.3478.
'Somejurists in theil' exposition of the princip! es of treaty interpretation distinguish between
law-making and other treaties, and it is tth.athe c:haraeter of a treaty may affect the question
whether the application of a particular principle, maxim or method of interpretatiis suitable
in a particular case (e.the cantra proferentem. principle or the use of travaux préparaUlires).
But for the putpose of fonnulating the ge.netal rules of interpretation the Commissidid not
consider it necessary to make such a distinctioCommentary on the 1966 I.L.C. Draft Articles,
A.merican.Journalof lntemational Law, 61 (l967}, p. 351.
4 As to this subject in genetal see A. B. Lyons, 'The Conclusiveness of the Foreign Office
Certificate', this Yem- Book, 23 (t946)p. 24-0; 'The Conclusiveness of the "Suggestion'' and
Certificate of the American State Depart:rnent', ibid. 24-(1947), p. u'Conclusiveness of the
Statements of the Executive; Continental and Latin-Aznerican Practice', ibid. 25 (z948),"p. z8o.
s For a collectionof British cases on treaty interpretationsee 6 British International Law
Ca6es (BJ.L.C.), pp. 619 et seq.
Cf. F.A. Mann, Trama,tirmsofthe GrotiwSociety,44(1958/9), pp. :;oet seq.; LordMcNair,
op. cit..(above, p. 255 n. 3pp.81 et seq.; I. M. Sinclair, Imematirmal and Compm-atz'oelAw
Quarterly,tz (1963), pp. 525 et seq. See, however, the reservations as to maties eoneem.ing
belligeX'frights and duties made by these authors.
? (1879) 4 P.D. 129, 154-5· Sir Robert Phillimore's judgment w:~ rversed by the Court of
Appeal on another point: (t88o) 5 P.D. 197. BY DOMESTIC COURTS 257
countries, the stipulations of a treaty duly .ratifieddo not within the Empire, by virtue
of the treaty alone, have the force of law. If the national executive, the Govemment of
_the day, decide ta incur the obligations of a treaty which involve alteration of law they
have to run the risk of ohtaining the assent of Parliament to the necessary statute or
statutes.
Sim.ilar rules have been adopted by the courts of Australia, Canada, 3
6
In dia, Palestine 5 and Israel.
Strictly spea.lting, in English courts the question is therefore one of
statutory interpretation. One might expect that the refusai to take cog
nizance of treaties as such was the end of the matter and the problem did
not exist for Her Majesty's courts. English courts have, however, generally
adopted a broader approach. Although their methods of interpretation
have been in.fl.uencedsomewhat by the legislative means of incorporation
adopted by Parliament, which range from enacting material provisions of
an international agreement so as to bring English law into line with the
international obligations of the Crov.ïl without direct reference to the
treaty to simply enacting the convention ward for word, the courts of0
Eng{and have on the whole taken these statu ftr ~what they are: the
product of a legislative technique to make the treaty operative in the
municipal sphere.
The position with regard to prize courts in England is different inasmuch
as they are directly bound by rules of international law unless the latter
are in con:flict with an. Act of Parliament. Orders in Council conflicting
10
with international law will not as a rule bind such courts. The available
case material set out below, however, does not îndicate any difference of
approach in the two kinds of courts.
In ]v!arshall v. Nicholls Coleridge J., interpreting the statute giving
e:ffectto a Fisheries Convention between Rer Majesty and the King of
1 [1937} A.C. 3z6, 347· This case 3lthough decided by the Privy Council with tegm-d to
Canadais of equal relevanee to England. See also WalkeY -v.Baird, (1892] A.C. 4-91; Admini
stratDrtlGernum Property v. Knoop, [1933] Ch. 439, also in Annual Digesz, 6 (1931p. :z40;
Hoani Te Heuheu Tu.kinov. Aotea District Maon" lAnd Board, [1941] A.C. 308, 3z4; Republic
of ltaly v. Hambros Btmk, [1950}Ch. 314, 327 et seq.
" Bluet: v. Fadde:l.L.R. 23 (1956), p4n.
1 Bitter vSeaetmy of State!W'Canada, Annual Digest, 12.(t9.u-s)p. 264-.
4SJI(l!'m(v.l. State of West BandalOthen, I.L.R.21 (1954), p. 272.
s Amine Namika Sldtmz v. Atromey-General,Annual Digest, 14 (1947)p. 36.
6 Alsociaw:mfor the Protection of Palestine GovemmmBondholders v. Mi:nUtv of Finana of
In-ael,I.L.R.18 (1951),.p. 398.
7F. A. Mann, 'The Interpretation of Uniform Statutes', Law Quarterly Rniew, 62 (194ft),
pp. 278 et seq.; Sinclair, lnte1'"!1mitmaclmd Comparative Law Quarte12y(1963), pp. 528 et
seq., 549·
8e.g. The Merchant Shipping (Liability of Shipowners and Others) Act, 195S, givîng effect
to the Brussels Convention of 1957 on the Limitation of Lîability of Owners of Sea-Going Ships.
9e.g. The Carriage by Air Act, 1961, giving effect to the Warsaw Convention as smended by
the Hague Protocol, 1955.
10 The Zamora, [1916] 2 A.C. 77. " (1852) 18 Q.B. 882.
coou s THE INTERPRETATION OF TREATIES
France, did not hesitate to resort te the Convention. Similarly the House of
Lords in two cases conceming the interpretation of the Treaties of Peace
after the First World W ar, which were in part scheduled and direct! y
enacted in the respective Treaty of Peace Acts and Orders in Council,
looked at the treaties themselves, rejecting interpretations purely based on
English law. 1 .
In TheCroxtethHall,: a case concerning the interpretation ofthe British
Merchant Shipping Act, rgzs, which bad the International Labour Con
vention, to which it purported to give effect, annexed asa schedule, the
Court of Appeal was unanimous that resort to the Convention could be
had if the statute were ambiguous. A majority, however, held that it was
clear. In the House of Lords 3 thisprincip le did not emerge quite so clearly.
While two of the Lords (Lord Macmillan at p. r48, and Lord Tomlin
at p. I4ï) seemed to imply the admissibility of resort to the Convention in
case of ambiguity, Lord Blanesburgh, dissenting, turned toit 'merely as
a matter of interest' (at p. 143). In the following year in the case of Stag
Lz"neLtd.v. Foscolo,Mango & Co. the Lordsnevertheless adopted amethod
that took due account of the true nature of the Carriage of Goods by Sea
Act, r924, and which was expressed in the broadest terms by Lord
Macmillan:
It is important to remember that the Act of 1924 was the outcome of an Inter
national Conference and that the nùes m the Schedule have an international currency.
As these rules must come under the consideration of foreign Courts it is desirable in
the interests of uniformity that their interpretation sbould not be rigidly controlled by
domestic precedents of antecedent date, but rather that the language of the rules
should be constroed on broad principles of general acceptation.7
8
The House of Lords has since adhered to this view in severa! cases
and Greene L.J. in the Court of Appeal even went so far as to say:
The Carriage by Air Act, 1932, was passed for the purpose of giving binding effect
in thiscountry to the Convention signed at Wa.ISawon October 12,1929, a translation
of which (omitting the preamble) isset out in the Schedule to the Act. In approach.ing
' Krcnnn'v.Attorney~Gm {192a]l,.C. 528,s:n; josef !ntl;!aldA.G. v. Pfeiffer, (1928)
44 T .L.R.352.
"' {:r93oP.197,see alsothis Year &Jok, I2 (1931), p. 183.
J Sub ncm.:Ellerman LinesLtd. vM'IDTay,together with White StLi~ [etc.]LttJ.v. Cotne7'
ford, (t9J:r] A.126.
4See a1soLord McNair, op. cit. (above, 255 n. 3), p. 423, and tYew Book, 13 (1932),
p. uo, also .AnmuzlDige:t, 5 (1929-Jcp.34Z·
5 [1932] A.C. 328.
6See, however, the earlier decision in Goue Milùrrd Lui. v. Co:nadùm Government Muchant
Marine Ltd.,[1929) A.C.223.
' At p. 350.
8Philippson.v. ImperiQJAimays Ltd., [1939] A.C. 332; Ptrtke Davës;Co. v. Comptrolkr·
Generalof Patents etc., (1954] À.C. 32:r; Riverstone MeaPty.Ltd. v.~hire Shipping
Co., Ltd., (I96I) A.C. 807.
1
1
1
1,
1
1 BY DOME TIC COURTS 259
the construction of such a document as 1 · Convention ît is, 1think,important at the
outset to have in mind its general so far as they appear from the language used
and the subject-matter with which it
The rule in EllermtmLineswas developed in two recent decisions
of the Court of Appeal. In i::ia:tonwv1n. Commissionersof Customsand Excise
the courts bad to interpret the , and Excise Act, I952. In the
2 1
Divisional Court Megaw J. the following conclusions on the
adm.issibility of resort to an · convention:
Counsel for Mr. Salomon sought to on the Convention on the Valuation of
Goods for Customs Purposes made at 1 on Dec. 15, 1950. The United Kingdom
ratified that Convention on Sept27, 1 : after the Act of1952 had received the royal
assent. The convention is nowhere menttoned in the Act of 1952.At best, the conven
tion could only be referred toif there vJierean ambiguity inthe Act of 1952, and, as
1 understand the decision of the House of Lords in Ellerman Unes, Ltd. v. MuTTay,
only then, ifthe Convention bad been f?'Presslyreferred to in, or scheduled to, the
Act of1952.3 1
4
This decision was overruled unanimously in the Court of Appea1.
Lord Denning M.R. after coming toa conclusion on the basis of the Act
itself said: \
I am confumed in this view by looking at the international convention which
preceded the Act of 1952 ... I thinktha Fe are entitled to look at it, because it is an
instrument which is binding in internatt-onallaw; and we ought always to interpret
our statutes so asto be in conformity with international law. Our statute does not in
terrns incorporate the convention, norr~f toitr but that does not matter. We cao
look at it.s 1
1
The judgment delivered by Diplock L.J. goes into considerable detail on
this point and for its rem.arkable climty may be quoted at sorne length :
1
Once the government baslegislated, which it may do in anticipation of the coming
into effect of the treaty as it did in ckse t,e court must in the first instance con
strue the legislation, for thatwhat thetourt bas to apply. If the terms of the legisla
tion are clear and unambiguous, they tbust be given effect to whether or not they
carry out Her Majesty's treaty obligatiok, for the sovereign power of the Queen in
Parliament extends to breaking treaties (~ e lennanLines,Ltd. v.MUTTay), and any
remedy for such a breach of an intematidnal obligation liein a forum other than Her
Majesty's own courts. If the terms of the legislation are not clear, however, but are
reasonably capable of more than one melming, the treaty itself becomes relevant, for
there is a prima facie presumption that P~liadr oes not ittend to act in breach of
international law, including therein specifie treaty obligations; ...
It basbeen argued that the terms of an international convention cannot be consulted
to resolveambiguities or obscurities in a statute unless the statute itself contains either
in the enacting part or in the preambleah express reference to the international con
vention which it is the purpose of the sta~ toimeplement. The leanled judge seems
1
: Grem v.ImperialAirtoayfLtd.,[1937)1 K.B. so,74. [rg66]~ All E.R. 340·
3 At p. 344· • [Ig66)3 Ali E.R. 871. 5 At p. 874-
1
1
1
• 1----·· ------
THE INTERPRETATION OF TREATIES
to have been persuaded that Elkrman Lines, Ltd. v. Murray was authority for this
proposition; but, with respect iisnot.... If from extrinsic evidence it is plain that the
enactment was intended to fulfil Her Majesty's Govemment's obligations under a
particular convention, it matters not that there is no e."{pressreference to the convention
in the statute. One must not presume that Parliaments intend to break an international
convention merely because it does not say expressly that it is intending to observe it.'
In Corocraft v. Pan American Airways,z the Court of Appeal had to
interpret the Carriage by Air Act, 1932, incorporating the Warsaw Con
3
vention. The Convention provided for certain limits to the liability of
carriers if specifie conditions were fulfilled. In respect of these conditions
a discrepancy was found between the English translation, which had been
made English law by the above Act and the authentic French text of the
Convention. The court found that the French version had to prevail. In
the words of Lord Denning M.R.:
Itwas plainly the intention ofailthe parties to the convention that the French text
shall be the one official and authorised text; and it was plainly the intention of the
English Parüament to give effect to that French tel..by making an exact translation of
it into English. The English Parliament failed in their abject. The translater whom they
employed, by introducing the word 'and', put his own gloss on the French text. He
produced certaintywhere there wasambiguity: and clarity where there wasobscurity. ,.•
Such being the dear intention of Pa.rliament, 1think we should follow it. If there is
any inconsistency between the English text and the French text, the text in French
should prevail.
And a little later:
There is another, and perhaps more powerful, reason for adopting the French text.
The Warsaw Con...-ention is an international convention which is binding in inter
national law on ail the countries who have ratified it: and it is the duty of these courts
to construe our legislation so as to be in conformity with international law and not in
conflict with it. Seeing that the convention itself gives authority to the French text, and
to the French text alone, we should so construe our legislation as to give priority to
the French text over the Englisb version. That appears from Saltmum v.Commissûmers
of Customs and Excise.EllermanLines, Ltd. v. Murray, is no authority to the contr:ary,
for there the English statute was clearly given priority over the convention. Not so
here.4
The particular importance of this case lies in the fact that here for the
fi.rstrime the court went beyond the clear and unambiguous words of an
Act of Parliament in arder to ascertain its meaning by having resort to the
international convention underlying it.
We can therefore conclude that Englîsh courts, although influenced by
the methods of transformation adopted by Parliament, will not stop short
1 At pp. 875 seq. • [1969] z Ali E.R. 82.
• The azne.ndment made to the Wan;aw Convention in 1955, although made law for England
by the Carriage by AirAct, 1961, had not been ratifted by thU.S.A., so th.ain the present
casethe old Act wasapplicable. ~ At pp. 86 eseq. BY DOMESTIC COURTS 261
of looking at and interpreting intemational agreements, once effect has
1
been given to them in English law by legislation.
A completely different situation exists in treaty interpretation before
French courts.z The highest judicial authority in administrative matters,
the Conseil d'Etat, has developed a consistent practice that whenever it is
confronted with the task of interpreting a treaty the meaning of which is
3
not clear (théorie de l'acte clair), it v.i.lldecline to do so, and stay the
proceedings, until the interpretation requested from the Minister of
Foreign Affairs or another competent administrative authority is known.
It will then consider itself bound by this interpretation: 'Considérant ...
que celui-ci présente le caractère d'une convention internationale et que
son sens n'est pas clair; que, dès lors, le Ministre des Affaires étrangères
est seul qualifiépour en donner l'interprétation.' 4
This practice îs based on the theory of the separation of powers. While
the courts are competent to exercise control over the administration, they
cannat do so with respect of the diplomatie function, which lies within the
exclusive competence of the Foreign Minister. As only he is supposed to
know the intentions of the contracting parties, this procedure is designed
to avoid cornplaints from interested foreign powers. 5 A protest by the
Spanish Government after the First World War on the application of
Article 4 of the Franco-Spanish Convention of 1852, ho,.vever,shows that
this method bas not always been successful.
More recently the Conseild'Etat hasmitigated its practice by developing
the concept of the acte interne d'exécutiondétachabledu traitéinternational. 7
With the help of this construction it bas held that matters concerning the
1 1 For other recent exllmples see: Post Office v. Estuary Radio Ltd., [1967] 3 All E.R. 663,
esp.lit675 in theDivisîonal Court and at p. 68per Diplock L.J. in the Court of Appeal;R. v.
Kent :JusticeEx parte Lye and others;Q.B., [1967) 1 Ali E.R. satsi4; The Annie Hay, [1968]
p. 341; The Mecca, [1968] z Lloyd's Rep. 17.; The Banco, The Times, 9 December 1970. But see
Cheney v. C= .t968] I W.L.R. 24-Z·
~For a general outline seJ. Benoist,Revu h~~1Jiniqudedroit international, 6 (1953),IOJ,
and M. Stassinopoulos, 'Remarques sur la jurisprudence français~lati v 'interprétation des
traités internationaux', .Ret>Ugeinirak de droit mtematirmal public, 73 (196S·, p.
' M. Stassinopoulos,loc. cit. (this page,2),pp. 9 et seq.
~ Decision of 29 March 19~ in Sociétédes mineset fonderies de la Vieille-Montagne, in Riper
taire de la pratique française en matière de droit international public, by A. I, No. 854.l.
The cases on this point are innumerable.See esp. .Riperwire, vol1,Nos. 8;;1-4, 888, 889 and
the c:1Sescited there. Also Ammal DigestI(1919-22), pp. 333 and 334; 5 Ü92Q-JO), p. 358 with
a note; 7 (1933-4), p.4JI; 8 {1935-7), pp. 464 and 347;11 (I9I<)-.,;2;), pp. 46, 77 and 2n9;
(t943-s). p. z8o;I.L.R.,,·ols. 17 {1950), p. 315; t8 (1951), p. 399; zz (1955), p. 478; 23 (1956),
p. 418; z6 (1958-IJ),p. 99· Also the cases quoted by StasSinopoulos, loc. c(L'lipage, n. 2),
pp. 7 et seq.
5J. Benoist, loccit. (thipage, n. z), pp107 et seq.; M. Stassinopoulosloc. cit. (trus page,
n. z), pp13 et seq.
6 J.Benoist, op. cit., 108 T~he dispute was later senled by arbitr:J.tion.
~ Lekéricy =e, Kiss, Répertoire, vol1, No. 890 (dec. of JO January 1948); Commentaire,
Fr>urchambaultet Deca::et:il/e(dec. of 28 February 19,;;z) in Rn:tte critique de droit ùzternational
prit:é(1953), p.109. 262 THE INTERPRETATION OF TREATIES
application of a treaty can constitute the abject of a case before the admini
strative jurisdiction without interfering with the diplomatie function and
that these matters are therefore susceptible of jurisdictional control like
1
any ather administrative act.
The Cour de cassation, supreme court in judicial matters, bas, however,
developed a different practice. It distinguishes rn.atters concerning un
intérê t rivéand un intérê tublic.The competence ta interpret the treaty
will then depend on the category into which the case falls:
En ce qui concerne 1'interprétationjudiciaire et gouvernementale, ilfaut distinguer
suiv-antque l'intérêe tn jeu est un intérêtprivéou un intérêtpublic. Dans le premier
cas, les tribunaux ont seuls le droit de faire cette interprétation sans êtreliéspar celle
qui émanerait unilatéralement du Gouvernement .... Dans le second cas, c'est au·
Gouvernement qu'il appartient d'indiquer le sens du traité, les tribunaux n'ayant plus
alors qu'à en tirer les conséquences de droit.~
The criteria for this distinction, which bas its origin in the fam.ousDuke
3
of Richmondcase, are rather empirical and depend on the circumstances
of the particular case. 4
Thus the following matters have been held to fall within the public
domain and therefore to rule out judicial interpretation of treaties regulat
ing them: peace and armistice, 5 law of warfare, 6 territorial changes/
8 9
protectorates, immunity of international organizations from jurisdiction,
10 11
consular immunity, rights granted ta foreign nationals, and extradition. u
But even if the court finds that the question before it falls into the private
1 Cf. P. Guggenheim, Traité de droit international public (1967), vol. r, pp. 87 et seq.;
-' J. Benoist, loc.cit.(above, p. 26t n. 2), p.ros.
z Advocate General Rey in ConsortJFried.mtmn ,ec. of 1.7 April 1950, KissRépertr:Jirevol. t,
No. 869; S=u:he:: v, Gozland, dec..of~~ December I9JI, Annzuù Digest, 6 (I9J•-:z), p. :;69,and
Kiss, Réperklire,vol. t, No. 864. For further cases see the note in An:nud Digest, 6 (I9JI-2),
atpp. 370 et seq. and Kiss, Répertoire, vol. t,Nos. 864, 869, 875 and 876. See also H. Batiffol,
Drol'tinternational privipp. :;6 et seq., with further references and M. StasSinopoulos, loc. cit.
(above, p. 261 n. z),pp. 8 et seq., t6 et seq.
• Dec. of 24 June 1839, Sirey (t8:;g), 1, 577·
4 For a detailedevalwtion of thisdistinction seeM. Stassinopoulos, op. cit. (abovep. z6t n. 2),
pp. t8 et seq.
6 ConsortsFried'II'Umldl,ec. of27 April tgso, Kiss, Ripertr:Jire, volt,No. 869.
In re Thyssm, In re Knlpp, decs. oh2 March 1923,9 August 1923, Amrual Dig~ t .1923-+),
p. 327; see a1so Kiss, Répertoire,vol. 1, No. 871.
1 Frmch Ctmeession at Shanghai v. Com.pagnie fran;af:e de tl'amw atyd~éclairoge électrique
de Shanghai, dec. of 2 June 1923, Amrual Digett, 2 (1923-4), p. 31.6; see alsoKiss, R.épert<Jire,
vol.1, No. 872.
8 Administration des/mantes t1misimnese. Zmma Ha'i,dec. of 28 Febnuuy 1930, Kiss, Réper
toire, vol. r, No. 873. Asto mandates see dec. of the Tribunal civil de la Seine o1Mareh 1937 in
Aegyptian Emerprise e. Ministre de 14 Guure, Kiss, Répertoire, vol. 1,No. 874.
9 Procureur Gé11éroo.fl the Court of Cassarum v. Syndico.te of Co-OW1!mo'f the Alfred Dehodemq
Property Company, dec. of 6 July 195-h l.L.R. 21 (1954), p, 279, and Kiss, Répertoire,vol. r,
No. 875. '" King, dee. of 23 February 1912, Kiss, Répertoire,vol. 1,No. 876.
11 Yter, dee. of1.7 July 1877, Kiss, Réperzoire, vol.I,No. 88o; Esto.desv. French Govenunmt,
dee. of 19 )anuary 1954, I.L.R. 21 (1954), p. 277.For further cases to this extent seeI.L.R. :u
(I9Sf), pp. 280, 281; 22 (1955), p. 6:z 2~(;1956), p. 376; 24 (1957), pp. 599, 6oo; :z6 (1958-Il),
pp. 490, 49+ n Viremattre, dee. of 18 July t8SI, Kîss, Rêpertcire, vol.1, No. 879. BY DOMESTIC COURTS
sphere it can nevertheless request an opinion from the Minister of Foreign
A.ffairswithout being bound by it. 1
It appears that the Mixed Courts of Egypt have followed the French
example on this point. z
American courts have always held that: 'The construction of treaties is
3
the peculiar province of the judiciary.' They have, however, attached a
certain significance to statements of the executive where the matter had
political aspects:
While the question of the construction of treaties is judicial in its nature, and courts,
when called upon to act, should be careful to seethat international engagements are
faithfully kept and observed, the construction placed upon the treaty before us and
consistent!y adhered toby the Executive Department of the governrnent, charged with
the supervision of our foreign relations, should be given much weight. 4
The courts of German y although they consider themselves '. . . com
petent ta construe the relevant international agreements, seeing that they
bad become German laws',s have nevertheless taken into account state
ments of the e.."{ecutive.
Similarly Swiss courts in their interpretation oftreaties are not bound by
instructions or directives from the authorities competent for the conclusion
and the approval oftreaties. This positionwas particularly cl early expressecl
by the Supreme Court of Poland in rg3o:
The moment ... the Treaty bad been ratified and published in Poland in the
Journal of Laws, its provisions, in so far as they relate to private rights, are binding
equally on the SŒte and on the individuals concerned. Consequently, from that
moment it was only for the courts or for the legislative authority, and not for the
administrative authorities, to interpret the pro\-isions of the Treaty in a way which
would be binding for the plaintiffs in the present case.s
' Gambi7u:c. COtiS.Arct'IU,de<:.of n Mareh 1953, DaUo:;1953, 1, 297 at299.
• Cmnbia.ro and Delacroix, Commilsirmers of the Egyptian Public Debt, and Others v. The
Egyptian.Gooemmmt, dec. of 2.1 January 1933, Anmtal Digest, 7 (1933-4), p. 412; DomingèJ
Caitano Rodriglus v. Minùtbe Public, dec. of 6 June 1938, ibid. 9 (1938-40), p. 46Ministère
Publicv. Spender, dec. of 30 May 1938, ibid., p. 478; Braf:iCo. v. Egyptûm Customs Admini
stration, dec. of 29 January ICJ42,ibit.(1919-42), p.224-
lJones v. Meehan (1899), 175 U.S.t, 32. See also Hackworth,Digest,vol. s,p. 267.
'"Sullivanet Al.v. Kùid (1921), 254 U.S. 433, 442 also Annual Digest, 1 (t9I9'"""22),p. 344·
Sec alsoRoss,.. Mclntyre, 140 U.S. 453, 468; Charltcn v. KeUy, 229 U.S. 447, 468; Factor v.
Laubtmlieimer, 290U.S. 276, 295, also Amwal Dige:t, 6 (1931-2), p. 298; Kowr;rat etAl. v.
Oregon, 366 U.S. 187, 194, alsoI.L.R. 32, pp. 203, 207. For older cases see Moore, Dige:t,
voL s.pp. :Z.,et seq. AlsoC. C. Hyde, lntematicmal Law (znd ed.), vol2, pp. 1484 et seq.
1 Statru of Russitm Trade Del~tz1 ca.erR.eichsarbeitsgmchl of 6~cember 1930, Annual
Dige:t, 5 (1929-30), pp. 309, JI2.
6 Basler Leb=ersiehmmges. AG v. Sp. Wc-ke AG, dec. of the Reidugericht of 20 May
1933, RGZ 140, pp. 353, 357· lt is interesting to note tbat in this case official inquiriesweremade
with the central auth.orities of both conttacting parties {Gennany and SwiŒei!and).
8 P. Guggenheim, op. cit. (above, p. 262 n. 1), vol. 1, p. :267.
Archdukes of Habsburg-Lolkringen v. Polish Stat TreQ.Sllry,decof 16 June 1930, A=l
Digert, 5 (l929-Jo),p. 346. The Court held, however, that the concordant înterpret:a.tion by the
oontracting parties must be considered as a significa~pressi of heil' intention. -
THE INTERPRETATION OF TREATIES
II
DOMESTIC LAW AND THE !NTERPRETATI OF ~TREATIES
One might suppose that International Agreements incorporated in the
municipal legal systems of the contracting parties, and susceptible of
application by the domestic courts, would create identicallegal situations
in the countries concerned. In the case of the international private law
codifications, the so-called 'uniform statutes', this was the prime purpose
1
of the undertaking. Experience, however, shows tb.at this is not the case.
Reports of divergent developments of identicallegal provisions (although
they did not have their origin in.treaties) are already ta be found concerning _,:
laws enacted in Napoleonic times in the Benelux countries. They can be 2
found also in regard to the interpretation of the Geneva Convention on
Bills of Exchange, I930 and on Cheques, I93 I, on the Warsaw Convention
3
and on Labour Conventions.
The tendency of national courts to apply the concepts and methods of
their own municipal law is probably one of the most important causes of
this divergence. Consciously or unconsciously they tend to follow their
own precedents and doctrines even in cases where they have to interpret
and apply law which does not originate in their domestic legal systems: 4
a tendency which is naturally more marked in cornmon hw countries.
While the opinions of most authors point towards the application of
5
international standards in the interpretation of treaties for the sake of
achieving uniformity-some even go to the extent of holding that there is
6
an obligation under international law to secure this uniform.ity ---others
maintain that treaty law, as soon as it has beçome part of the domestic
7
legal system, should be treated like any. ether domestic law.
The different techniques of incorporating treaties into the municipal
.=·
' cr. F. A. Mann, Law Quarterly Revieu:, 6z (19+6)p. Z78.
• O. Riese, 'EinheitlicheGerichtsbarkeitfiîrvereinheidichtesRecht?', RabelsZ z6 (1961),
pp. 6Q4,60"].
, Ibid., pp.61z et seq•
• cr. H. Batifi"op. cit. (above, p. z6z n. z), pc.3Tomusehat, Zo.iJRV, z8 (1968)pp. I.4J
etseq.
5
F. A. Mnnn in Law Qmuterly Re<Liew6 ,z (1946), pp. 278, 291J.P. Niboyet, 'Le problème -·~
des "qualifientionssur letern ~isnraités diplomatiques', Re<L-uclr'itique de droit intenultional
privé(1935), pp. 1, 19; CTomuschat, ZaoRV 28 (1968), p. 142; P. G. Vallindas,'Autonomy
of lntem:rtionalUniform Law', Revue hellén de droit internatitmal, 8 (195pp. 8,12..See
also the remarks made by A. Verdross in the Institut de Droit lnternati()in(Anmu.rire,44
(I6S2-II),p. 384, and A. D.McNair, this Year Book, 13 (1932), p. ua.
E. Hirsch,Neue.YuristisclzeWochemclzrift (1961), p. 1O.Riese, RabelsZ 26 (1961), p. 6n.
7 E. Bnrtin, 'La doctrine des qualifications', Recue:t."dles cours, 31 (tg:;o-1), p. 614; A. Mestre,
'Les traités et le drointerne', ibid. 38 Ü93I-IV)pp. 299 etseq.; I. S. Pete:rskii, quotin
The Theory.·,Law, end Policy of Soviet Treo.ties (1962) by J.F. Trisk::laSiusser,at p. 116.
For more referenceson thispoint see \V. F. Bn}'er, Rahel20 (1955), pp. 607 et seqwho isin
favour of a eons.ideration of both aspects wiemphasis on the sde of municipnllaw (p. 633).
1
·..._.i BY DOMESTIC COURTS
sphere doubtless play an important part in this confusion; though the
liberal attitude of English courts in recent decisions (see above), despite
the e.'Ctremepractice of special transformation in the United Kingdom,
shows that the di.."licultiesare not insurmountable.
There are broadly three v•raysin which municipal courts have inter
preted treaties in the light of their owndomestic legalsystems: (i)they have
construed treaty provisions so asto avoid conflict with existing municipal,
especiaily constitutional, law; (ii) they have interpreted terms used in
;e
treaties in the sense they have in the domestic system; and (iii)they have
applied to international agreements municipal law rules of construction
h
g intended to apply to contracts, statutes or ether documents. Examples of
each of these three approaches are asfollows.
·e
n
(i)
n
In Hidalgo County Water Control, etc. v. Hendrick et al.,Z·the United
,f States Court of Appeals for the Fifth Circuit found that, to interpret a
,f treaty with Mexico in accordance with the plaintiff's contentions that it
r vested.him with property rights, would bring the treaty into conflict with
:t the United States Constitution ".'\l·hic reserves the power to regulate tenure
ofreal property to the individual states. Afte:rsaying that it wished ta avoid
such a confiict, the court held that it could find no evidence of an intent
_.f to supersede the law of the contracting Parties.
Again, quoting t..l-eupreme Court of California, the Court of Appeals
f
s of Maryland held in 1940:
s
The question presented ... isa1so of grave importance because its solution in favor
of the appellant necessarily ascribes to the federal govemrr.ent the intent, by means of
its treaty-making power, tomaterially abridge the autonomy of the se..,-erasltates and
to interfere witha."ldirect the state tribunals in proceedings affecting private property
.1 within their jurisdictionsIt is obvious tbat such intent is not to be lightly imputed to
the federal govemment, and tbat it cannat be allowed to exist except where the lan
'• guage used in atreaty plainly expresses it,or necessarily implies it.l
Similarly the Supreme Court of Appeals of West Virginia held that:
The primary rule is that the treaty shall be liber.ùly construed .... But such con
struction should not be extended so as to infringe upon the Constitution of the United
l States, orto invade the province of the states of the Union in matters inherently local,
f or to restrict the various states in the e.."erciseof tbeir sovereign powers.4
1 This can be scen with particular clarity in the deliberatithe Deuudre Geselbchaft für
VolluTTecht,6 (I964)in Die Anuendzmg des Volkerrechu im i1l'llerstaatlichen&ch(report by
K. j.Partsch,pp. 109 et seq). z Dec. of 30 September1955, I.L.R. 22(1955),p. 572.
J Sclmeitkr v.H(W;kim et al., dec. of 17 Dccember 1940, Anm~al Digest, 9 (1938-40),
pp.483, 487.
4 Antes::: v. State Compensation Commûsionu et al., è.ec.of JO June 1947, A=aDigest, 14
(1947), p. 163. SeealsoG. R. Del:mme, 'Applic."'ltand Intcrprct o:fT ra:ins by the
lntem.al Courts in Franeo-Ameriean relationsClunet, So(1933), p. 585,atpp. 6u et seq. . 'A .-~-.• '.
••
266 THE INTERPRETATION OF TREATIES
On the other hand, courts in the United States have repeatedly
emphasized that the construction of treaty prov-isions is not restricted
by any necessity of avoicling conflicts with state legislation, as the
treaty-making power is superior to the legislative power of the states and
treaty law must prevail over inconsistent state enactments. 1
The Supreme Court of Mexico in a case conceming property rights and
a convention with the United States for the recovery and restoration of
stolen vehicles, found that the constitutional rights of the camplainant had
been violated by the administrative measures taken under the Convention.
The court held that the Convention had to be interpreted in conformity
with the Constitution as 'It cannat be the intention of the said Convention
that the Federal Executive by means ofits agents shall violate the Constitu-
!lon, ....'2. .
German courts also have repeatedly rejected interpretations that were
not in conformity with pre-existing German law. The Federal Constitu
tional Court in a case conceming the compatibility with the Constitution
of a treaty with France on the Saar territory held that:
We must, as a general rule, proceed on the basis that the political organs of the -.
German Federal Republic who took part in the making of a treaty did not întend to
underta.ke liabilities whiare contrary to the Constitution .... Where several inter
pretations are feasible, preference must be given to an interpretation which perr:ilitsthe
treaty to exist, having regard to the requirements of the Constitution.4
The Federal Administrative Court was even clearer when it stated that:
The provisions of the Geneva [Refugee-] Convention have become municipal law.
They bave to be interpreted within the scope of the Constitution. They form part of
a uniform legal system.s
As a justification-it can hardly be called reason-for this method of
interpretation it is usually said that it cannot have been the intention of the
negotiators to bring the treaty into conflict with the Constitution or with
well-established domestic law. Apart from the more general question of
intention, which will be dealt with elsewhere, this reasoning shows a
disregard for the bilateral or multilateral nature of the international agree '·~
ment. The intention of the parties is only relevant, if at ail, where it is
common to all participants and it is diffi.cult to imagine the contracting
1 Niehm v. johruOI'I.,279 U.S. 47, 52; UniveTsal Adjustmnrt Corp. v. Midland Bank Ltd. in the
Supreme JudicialCourt of Massachusetts,Amrual Digest8 (193~ -p7 )6, 463. AlsoG. R.
Delaume, loc:. ci(above,p. 265n.4), pp. 597etseq.
= ln re Herndnde:: del Valle, dec2.June 1949, A.mtual Dîgert6 (1949), p312.
l See decision of the~hsgeri oft t December 1921,jurist Wioç~ehsehrift (t9),
p. JI27 and of :zo May 1922RGZ 104, pp. 35:1:,355·
4 Statute of Saur Territory case, of<1May 1955, B Ver!GE 4, pp.157, 168, also in I.L.R.
22 (1955), p. 6Jo.
5 Dec. of 27 SepŒmber 1962, quoted in ZaaRV 28 (1968), p. 141. BY DOMESTIC COURTS 26ï
govemments as having any intentions in respect ofthe domestic law oftheir
partners, which may not even be known to them.
(ii)
In two cases conceming the interpretation of the peace treaties after the
First World War, the House of Lords refused to base its construction of
terms purely on considerations of English la~.1 A less liberal spirit was,
however, shawn by the Lords in subsequent cases concerning maritime
law. In GosseMillard Ltd. v. Canadian Governmentil1erchant lYlarine,
Ltd., Lord Hailsham L.C. said:
I am unable to find any reason for supposing that the words as used by the Legis
1
·Jarure in the Act of1924 have any different meaning to that which has been judicially
assigned to them when used in contracts for the carriage of goods by sea before that
date; and 1 think that the decisions which have already been given are sufficient to
determine the meaning to be put upon them in the statute now under discussion.l
This attitude was somewhat modified in Stag Line,Ltd. v. Foscolo,114ango
f5 Co., which concerned the same Act. Lord Atkin while accepting Lord
Macmillan's dictum did so with an important reservation:
Far the pm·poseof uniformity it is, therefore, important that the Courts should apply
themselves to the consideration only of the words used ,._.;thoutany predilection for
the former law, alwaj"Spreserv:ing the right to say that words used in the English lan
guage which have a.lreadyin the panicular context received judicial interpretatiomay
be presumed to be used in the same sense already judicially itnputed to them. 6
In the following year, however, the Lords reverted ta their earlier
views when confronted with the task of interpreting the Merchant Shipping
Act, 1925, passed to give effect to an International Labour Convention of
1920: In Barras v. Aberdeen Steam Trawling and Fishing Co. 7 the court
relied on a decision previous to the enactment of the statute, in arder to
define the word 'wreck' appearing in it. In the words of Viscount Buck
·m.aster:
It bas long been a 'vell established principle to be applied in the consideration of
Acts of Parliament that where a word of doubtful meaning hasreceived a clear judicial
interpretation, the subsequent statute which incorporates the same word or the same
phrase :in a similar context, must be construed so that the word or phrase is inter
preted according to the meaning that bas previously been assigned to it.s
' Kramer v.Atto~· Generol, (1923)A.C. 528, 537; J01ej lrw.:old AGv. Pfeiffer(1928),
441T.L.R. 352.
3 i.e. the Carriaof Goods by Sea Act, 192.4, incorporatithe Hague Rules of J9~::1i.
[1929] A.C.::li:230. ~ [1932]A.C. 328.
7 See above,p. 258. 6 [1932]A.C. at 343·
[1933] A.C. 402, alsA.m~u Dalest,7 (1933-4),p.466. 8 Atp. 4II..z68 THE INTERPRETATION OF TREATIES
This reluctance to depart from well-established principles of English
maritime law has been ascribed by Dr. Mann to the pre-eminence of Eng
1
lish law in the maritime field and its influence upon foreign legalsystems.
The Lords have since taken a completely different course. In Philippson
v. ImperialAirways the House ofLords::overruled the decision of Porter J.,3
upheld by the Court of Appeal, who had based his construction of the
term 'Hîgh Contracting Parties', contained in the W arsaw Convention,
1929, purely on considerations of English law. It was held that the use of
the phrase must 'depend upon the meaning in the Convention'.s
If there were any doubt left, the case of Riverstone 111eatCo.Pty. Ltd. v.
LancashireShipping Co.Ltd. made the new attitude of the highest English
court quite clear. There, for the sake 'of preserving the unîformity of
inteipretation' 7 of the Hague Rules of I922, the Lords looked at American,
Canadian, New Zealand as \\'ellas at English decisions, at the sarne time
deploring the absence of citation of authority from European maritime
9
countries.
In a recent case in the House of Lords, Athanassiadisv. Governmentof
10
Greece, conceming the Extradition Treaty with Greece, I9IO, the appel
tant contended that the ward 'month' appearing in the treaty should not
be construed in accordance with the Interpretation Act, I889, the latter
not being in general applicable to international documents, but by refer
ence to the meaning of the word in common law. In the words of Viscount
Dilhorne:
W"hileI agree that themeaning of language uscd in a treaty isnot to be interpreted
as if anAct passed in the territory of one of the powers govemed it, it does not, imy
view, follow that a rule of construction appliŒble under the law of one power in rela~
tion tolegaldocuments namely, the common law rule that 'month' means '1unarmon th',
is to be applied in relation toit. In each case, it seems tome, one has to consider what
was the intention of the treaty.
He then, however, came to the cor.clusion that it was the intention of the
parties ta the treaty that 'month' should mean the same as it does in the
Extradition Acts by virtue of the Interpretation Act. It appears that
the lower courts have generally adopted the same attitude.•z
2 In Law Quarterly Revieu:, 6z (1946), p. 282.
[1939] A.C. 332, also in A1f11ualDigest, 9 (1938-4o), p. 444, and see a note in this Year Book,
21 (1944),p. 201. 3(I937) 53 T.L.R. 8so.
• (1938) 54 T.L.R. 523. 5 Lord Atkin, at p. 346.
8 [t96t] A.C. 807,·also in I.L.R. 33, p. 397. ' [t96t] A.C., Lord Merriman atSss.
The court was in fact dealing not ;vith the U.K. Carriage of GSe:A et,192.4but with
its·Australian eounterpart the Sea Carriage of Goods Act, 192.4·
9 [196t) A.C., Lord Hodson at 874.
'" [1969]3Ail E.R.293. " At p. 298.
'" Ad.mi't:istTatorof German Prapert)' v. Knoop, [1933] Ch. 439, +54; The Eurymedtm, [1938] '
P. 41, 61; Bm:k voor Handel v. Slatford, [1953) z Q.B. 271,reversed on another point, also i
in I.L.R. 18(I'JSI)p.171; Pymze Co. I.td.,~·Srindia 1Vm:igationCo. Ltd., [1954] z Q.B. 402 -'
also in I.L.R21 (1954),p.297.
1
'l BY DOMESTIC COURTS
The little evidence available seems to suggest that while French courts
used ta adopt municipal standards in interpreting treaty terms, 1 they
have now changed theîr practice in favour of a more international attitude. z
The Egyptian Court of Cassation in a case concerning German Trade
marks in Egypt, interpreting the Paris Agreement on Reparations from
Germany of 1945, which provided in Article 6 that 'each of the signatory
Governments, by the methods of its own choice, will retain German
enemy property ... ', held, that this freedom in the choice of means was a
reference ta the domestic law of the respective country to determine what
the object of the treaty, i.e. 'property' was.
Austrian courts in two recent cases have interpreted teons used in the
State Treaty of 1955 and the Headquarters Agreement with the I.A.E.A. 5
by relying on their meaning in Austrian statutes. In neither case, however,
were the decisions exclusively based on the relevant domestic provisions.
German courts, although there are isolated examples of reliance on
domestic law, have on the whole approached treaty terms with due regard
ta their international origin. The Reichsgerich tnd later the Bundesgerichts
hof have repeatedly looked at the meaning in foreign laws and decisions
7
of terms used in treaties they had to construe. The Reichsgericht has,
however, held that it will not be bound by the interpretation given by the
8
courts of another contracting State and that the fact that the authentic
text of the treaty was in English was not to be taken as a reference to
9
English legal terminology. Where a construction of the terms after the
exhaustion ofaliinternational law sources of interpretation isstill impossible
and no information about the intention of the parties is forthcoming, the
court will apply the corresponding German legal terms. 10 The German
Federal Administrative Court, in a recent case concerning the Geneva
• 'Lest:mitédiplomatiques doivent êtreentendus daru le sens qui les rnet en harmonie :avec
le droit civetpublic.' Dtikeof Richmtmd ease, dec::.of civ.24 June 1839, Sirey t8J9-l578.
z Frend! State v. ÉtablissementsMonmmuseau, dec. of 6 April 1948 in which the Court of
Appe:al of Orleans heltb.athe French concept ofimmeublepar destination could not be used for
the interpretatioof the FourthHague Convention of 1907. .A.mwa1Digest, 15 (tC}+S),p. 596.
3Sociiti allemande Shirring v. Soa.·étébrit=iquShirring, dec. of z3 June 1955 in I.L.R.
26 (1958-II), p. 657.
4Austrian Gliding Club case, dec. of the Administrative Court of 3May 1957, I.L.R. 24
(1957), p.639·
5E'VIl1lgelkl Jrwchm Austria v. Grezda, dec. of the Supreme Court of 27 February 1964,
I.L.R. 38, p. 453·
6
Treaty of Versaüle$ (Art. 299 a, .r) case, K4mmergeri&ht, dec. of 19 May 1927detasck
&chtsprechung auf dem Gebi ees intematirmalm Privatrechts (IPR.tpr.) (1926/7), p. 133; C. of
A. ease, dec. of tHam OLG of 10 May 1933, IPRspr. (1933), p. 54-
1Dec. of 23 June 18go, RGZ 26, pp. n?, 127; National Cash Register CQmJ>v.. Sch.a.S.,
dec. of zo November 1909, RGZ 12, pp. !42•247; dec. of 8 JulI953, BGHZ to, pp. 149, 155;
de3. of 15 November 1956, BGHZ 22, pp. 148, 152.
Dec. of 3 November 1936, Juristische Wochenschrift (193;), p. t6o.
0 Dec. of 28 September I9ZI,RGZ loz,pp. 403, 404·
' Swiss-German Mortgage Agreement case, dec. of 4 February193r, Jwistische Wochemchrijt
(1932-l),p.243, also in A:nm<alDigest, (I9Jl-2),p. 386.270 THE INTERPRETATION OF TREATIES
-j
Refugee Convention, put its decision into harrnony with legalconceptions, j
developed on the basisof this agreement, in Norway, Great Britain, France, !
1
Belgium and the United States.' l
Courts in the United States have shawn a similarly broad-minded !
3 4 !
attitude on this point,1.and Dutch decisions and a Panamanian case have
also rejected resort to the lex fori for the interpretation of treaty tenns.
(iii)
On the point of applying to treaties the same rules of interpretation that
are applicable to documents in municipal law, English judges in early
decisions were reasonably clear: in Les Quatres Frères the Admirai ty
Court, interpreting a treaty between England and Denmark of !670 in the
light of subsequent practice, held that 'there is but one way of expound
ing ali grants and contracts, private or public'. Similarly Eyre C.J. in
j
Marryat v. Wilsonin Errorsaid: 1
t
We are to construe this treaty as we \Vouldconstrue any other instrUment public or
private. We are to collect from the nature of the subject, from the words and from the
context, the intent and meaning of the contracting parties, whether they are A. and B.,
6
or happen to be two independent States.
This principle was, however, strongly limited by the Privy Council in
the case of The Blonde where it said:
The principle of ascertaining the intention of the parties to an agreement by gi\ing
due consideration to what they have said is no doubt valid in international matters,
but there are many rules both asto the formation, the interpretation and the discharge
of contracts, which cannot be transferred indiscriminately from municipal law to the
law of nations.s
It is not surprising that, saddled with the method of special transforma·
tion of treaty provisions, English courts have been tempted to apply rules
ofstatutory interpretation to the Acts that gave e:ffectto international agree
ments. Two instances of the application of the rule that concepts hav-ing
a well-established meaning in common law retain this meaning when
• Dec. of4 November 1965quoted in ZarYRV 28 ( 968), p. 144.For more details on German
practice seeW. F. Bayer, R.abelsZ zo (1955), pp.61o et seq.
2u.s. Supreme Coun in Geofroy v. Riggs, 133 u.s. zs8, Z7I; Coutt of Appeals, Ninth Cir
cuit inAmerican Trw-t Co. v. Smyth et al., of 8 Ju1957 in I.L.R. 2-41957), p. 632,Berner et al.
v. British Crnnmonwe4lthPacifie Airlines Ltd. etaL, in the District Court, Southem Disuict,
New York on z8 June 1963, I.L.R. 34, pp. zot, 206.
JDec. of theHigh Court of the Netberlands of .:u April 1932, Soc. MtuZùc~p yijmchip
Belgica c.WeJtphalischeTrmuport AG, Revuecritique de droit international pri'IJé(1934),p. 476;
Bukowsky v. Mat1J28f!'YMoIf'Itthe Bo:nkfor Soria}.I71S1Uant,entral Court of Appeal în Admini·
strativeLaw cases on z April 1958, I.L.R. z6 (t9s8-Il), p. 587.
• Supreme Court, In re Rivas on 27 February 1934, AmnU3I Digest, 7 (1933-4), p.+44·
5(rn8) Hay & M. 170, 172. 6{1799) r Bos. & Pul. 430, 439·
7 [1922]1 A.C. 313. 8 At 33 I.
• Cf. F. A.Mann, Law Quarterly Review, 62 (1946), pp. 279, 284.
1
1-------------------·-·- ........ -··
BY DOMESTIC COURTS
incorporated into a statute have already been quoted above. Such a rule 1
is unknown to continental law. Similarly in Parke Davis & Co. v.
Camptroller-General of Patents, Designs and Trade Mark$2- Lord Asquith
found it quite natural to apply the ejusdem generis rule to the International
3
Convention for the Protection of Industrial Property I934·
With American courts the application of contract law concepts of inter
pretation to treaties seems to have developed into something like a well
established rule. In Sullivan et al. v. Kidd the Supreme Court of the
United States found that: 'Writers of authority agree that treaties are to
be interpreted upon the principles which govern the interpretation of
5
contracts in writing between individuals .. .'.
The Court of Appeals, Fifth Circuit, has held in two decisions that con
sideration should be given to the intent of the parties because the treaty
bad to be construed as ether contracts. This rule was followed by the
Supreme Court of New Hampshire. Califomian courts have stated the
principle that 'treatîes are subject to the same rules of interpretation as
other documents'.s It is therefore surprising to find in a recent decision
of the Court of Claims the statement: 'The document being a writing
accomplished by international agreement, an American court does not
have the right to interpret it as freely as it might interpret an American
statute or contract.'9
The German Bundesgerichtshof has clarifi.edits position with regard to
rules of statutory interpretation when it said that ··the courts are not
entitled to use the technique employed in the interpretation of German
laws when interpreting international agreements'. 10 This view was shared
by the District Court of Rotterdam n and a Singapore court. 12
• ~se Mi/Jard case andBtli'Tacase, above, p~67-
: [1954] A.C. 321, see :a1soa note in this Year Bjik(1954), p. 465.
4 [1954] A.C. at 327.
5 254 U.S. 433· This concemed a bilateral treaty with Great Britain.
6 At 439·
Hidalgo Water v. Hendrick, dec. of 30 September 1955, I.L.R. 22 (1955), pp. 572, 577,
concerning abilateral convention with Mexico; Board of COtmty Cammiuioners of Dade Cmznty
Florida v. Aerolmeas Penumasa, S.A. etal.,dec. of JI August 1962, I.L.R. JJ, pp. 410, 4n,
conceming the Chicago Convention on lntema.tional Civil Aviation 1944.
7 Lazar otal.v. M<mZTo estal.dec. of x July 1958, I.L.R. 26 {1958-II), p. s8s, conceming a
bilateral treaty with Greece.
8 Supr. Ct. of Califom.ia in EsMt8 of Clmuen case on xoOctober 1927, Annu.al Digest, 4 (1927-
8), p. 449, conceming a bilatertreatywith Demnark; District Ct. of Appeal, znd Appellate
Division, Califom.ia, in Kaname Tokaji v. SMt8 &md of Equalùl'dion oJO April 1937, ibid.
8 (1935-7), p.pz, con.cerning a bilateral trea.ty with Japan.
9 Flying Tîger Linelnc.v. United States, dec.1 1February1959, l.L.R. zS, p. 99, at104.
conceming the interpretation of the Warsaw Convention on International Air Transport of 1929.
10BGHSt. Iz (1959), p. 36, also suncmineEscaped Wm- Criminal casein I.L.R. z6 (1958-II),
pp. 707, 711-
11The Vredeburg v. The Sarina Dorin-a,dec. of I7 December I952,·I.L.R19 (1952), p. 487.
~~Original Civil Jw-isdietion: Publk Tnutee v. Ckartered Bank of India, Au.stralia and China,
dec. of :u February 1956, I.L.RZJ (1956), pp. 687, 699. 272 THE INTERPRETA TI ON OF TREATIES
The pattern emerging from the evidence adduced in this Section is far
from uniform. On the contrary, it shows that the courts of one and the
same country, while dealing with one aspect in a bread and intemationally
minded spirit, adopt a nationalistic if not insular attitude towards other
problems. Thus English and American judges while realizing that treaty
terms need not have the same meaning as words used in their national
legislation or in precedents, still seem to believeit proper to apply to treaties
rules of statutory or contract interpretation developed in their municipal
law. German courts, on the other band, have shawn a more realistic
attitude in these two matters. Even so, where there was danger of a conflict
between treaty obligations and the Constitution they avoided the difficulty
by sim.ply interpreting the treaty in the appropriate way, a method also
used by sorne United States courts.
III
TEXT OR INTENTION
The International Law Commission in its commentary to the 1966
draft articles found that there were three basic approaches ofjurists to the
interpretation of treaties, depending on the relative weight given to:
(a) The text of the treaty as the authentic expression of the intentions of the
parties;
(b) The intention of the parties as a subjective element distinct from the text;
and
(c) The declared or apparent abjects and purposes of the treaty. 1
It is the fust two points, the conflict between objective or subjective inter
pretation, that we will have to deal with in this chapter.
While 'most writers have begun with the fundamental principle that
the function of interpretation is to discover what was, or what may
reasonably be presumed to have been, the intention of the parties to
2
a treaty when they concluded it .. .', the textual or objective approach
1
:- A1111!7icJnurnal of Interna.titmalLaw, 61 (1967), p. 349· This classification had already
been used by Sir Gerald Fitzm.auriΠin this Year Book, :aS(19t), pI,and was later adopted
by Sir Humphrey Waldoc:k in his report to the International Law Commission, see Yearbook of
the Inurna.tùmaLaw Commisricm (1964-II), p. 33· For a detailed analysis of the three approaches
Draft Convention on the Law of Treaties before the Vienna Diplomatie Conference', International
and Comparative Law QUiZTterly,18 (1969),p.318.
~ Harvard Researc:h , merium Journal of International Law, 29 (t9Js), Supp. II,p. 940;
e.g.G. Dahm, Viilkerrecht (1961), vol. 3, p. 43, but see pC.4Fairman, Transactions of the
Grotius Society, 20 (1934), p. I2J; P. Guggenheùn, op. cit. (above, p. 256 n. 2), p. zsz; H. Lauter·
pacht,this Year Book, 26 (1949), pp. ss, 83, but see the limitatipp. 52,76 et seq.S.Neri,
recht (sth ed.), p. 173; M. S. McDougnl in TM Imeryreto.tion of .Agreemenu and World Public
'· 07der,probably bas the same thing in mînd when he talks of 'genuine shared expectations' (at
p. zg).--- -----~-4nnexI ANNEX VI
PART SIX
HUMAN RIGHTS AND
SELF-DETERMINATION
I. UNIVERSAL DECLARATION OF
H:UMAN RIGHTS
The references to human rights in the Charter of the United Nations (see
preamble, Articles1, 55, 56, 62, 68and 76) have provided the basis for
elaboration on the contentf standards and of the machinery for imple
menring protection of human rights.On 10 December 1948 the General
Assemblyof the United Nations adopted a UniversalDeclaration of Human
Rights(U.N. Doc. A/811).The voting was forty·eighrfor and none againsr.
The following eight states abstained: Byelorussian.R., Czechoslovakia,
Poland, Saudî Arabia, Ukrainian S.S.R., U.S.S.R., Union of South Africa,
and Yugoslavia.The Declaration isot a legally bindinginstrumeassuch,
and sorne of its provisions depart from existing and generally accepted
rules. Nevertheless sorne of its provisions either constitute general
ciples of law (see the Stature of the International Court of Juinfra,
art.38(1)(c)), or represent elementary considerations of humanity. More
important is its starus as an authoritative guide, produced by the General
Assembly, to the interpretationof the Charter. In this capaciry the
Declaration bas considerable indirect legalect, and isregarded by the
Assembly and by sorne jurists as an of the 'law of the United Nations'.
On the Declaration, see Oppenheim, InternationalLaw, 8th ed., i, pp.
744-6; 9th ed.,Vol. i,pp.1001-4; Waldock, 106 Recueil des cours de
l'académiede droit international (1962, II), pp. 198-9. Generally on
human rights see Brownlie, BasicDocuments on Human Rights, 3rd ed.,
1992; l..auterpacht, International Law Human Rights,1950; Robinson,
The Universal Declaration ofHuman Rîghts, 1958; Lillich and Newman,
International Human Rights, 1979; McDougal, Lasswell and Chen,
Human Rights and World Public Order, 1980. HUMAN RIGHTS AND SELF-DETERMINATION 257
effective recognition and observance, bath among the peoples of
Member States themselves and among the peoples of territories
under their jurisdiction.
Article 1. All hurnan beings are born free and equal indignity and
rights. They are endowed wirh reason and conscience and should
act towards one another in a spirit of brotherhood.
Article 2. Everyone is enritled to ali the rights and freedoms set
' fonh in this Declaration, without distinction of any kind, such as
~-
race, colour, sex, language, religion, political or ether opinion,
national or social origin, property, birth or other status.
i' Funhermore, no distinction shallbe made on the basisof the polir
. f. ica!, jurisdictional or international status of the country or territory
to which a person belongs, whether it be independent, trust, non
self-governing or under any ether limitation of sovereignry.
Article 3. Everyone has a right to life, liberty and security of
person.
Article 4. No one shall be held in slavery or servitude; slavery and
the slave trade shall be prohibited in alitheir forms.
Article 5. No one shall be subjected to torture or to cruel, in
1 ; human or degrading treatment or punishment.
Article 6. Everyone has the right to recognition everywhere as a
persan before the law.
Article 7. All are equal before the law and are enritled withour
any discrimination to equal protection of the law. Ali are entitled
ro equal protection. against any discrimination in violation of this ,-···
Declaration and against any incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.
Article 9. No one shall be subjected to arbitrary arrest, detention
or exile.
Article 10. Everyone is entitled in full equaliry to a fair and public
1 : hearing by an independent and impartial tribunal, in the deter
mination of his rights and obligations and of any crirninal charge
against him.276 HU MAN RIGHTS AND SELF-DETERMINATION
2. INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS
Preamble _··i
The States Parties to the present Covenant.
Considering thar, in accordance with the principles proclaimed i
in the Charter of the United Nations, recognition of the inherent i
dignity and of the equal and inalienable rights of ali members of l
\
the human family is the foundation of freedom, justice and peace i
in the world, t
Recognizing thar these rights derive from the inherent dignity of l
the human persan,
Recognizing thar, in accordance with the Universal Declaration
of Human Rights, the ideal of free human beings enjoying civil
and political freedom and freedom from fear and want can only
be achieved if conditions are created whereby everyone may enjoy
his civil and political rights, as weil as his economie, social and
cultural rights,
Considering the obligation of States under the Charter of the
United Nations to promote universal respect for, and the observance
of, human rights and freedoms, .
Realizing thar the individual, having duties to ether individuals
and to the community to which he belongs, is under a respons
ibility to strive for. the promotion and observance of the rights
recognized in the present Covenant.
Agree upon the following articles:
PARTI
Article 1
1. Ali peoples have the right of self-determination. By virtue of
thar· righr they freely determine their political sratus and freely
pursue their economie, social and cultural development.
2. Ali peoples may, for their own ends, freely dispose of their
natural wealth and resources withour prejudice to any obligations
arising out of international economie co-operation, based upon
the principle of mutual benefit, and international law. In no case
may a people be deprîved of its own means of subsistence. ·~·
HUMARIGHTS AND SELF-DETER277ATION
ing responsibility for the administration of Non-Self-Governingv
and Trust Territories, shall promote the realization
the provisions of the Charter of the United Nations. conformity wirh
PART II
Art2cle
1Each State Party to the present Covenant und'-takes to respect
and to ensure to ail indivîduals within its territory and subject to
without distinction of any kind, such as race, colour, sex, lan
guage, religion, political or other opinion, national or social cri
gin, properry, birth or other status.
measures, each State Party to the present Covenant undertakes to
take the necessary steps, in accordance wirh its constitutional
adopt such legislative or other measures as may be necessary to
give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(aherein recognized are violated shall have an effective rem
ecly,notwithstanding that the violation bas been committed
(bTo ensure thar any person claiming such a remedy shall
have his right thereto determined by competent judicial,
competent authority provided for by the legal system of ther
State, and to develop the possibilities of judicial remedy;
(cremedies when granted.ompetent authorities shall enforce such
Art3cle
equal right and women to the enjoymeni of ail civil and ensure the
political rights set forth in the pre:.nt Covenant.
i
~~~..:·~~·~ •~ ••• 1• ~·
<~ .." ' .,;'ilèi·c~•'-;.~-' ~.C. •• :-.•~- 4nnex VIl
/ ANNEX VII
UNIVERSITY OF CAMBRIDGE
RESEARCH CENTRE FOR INTERNATIONAL LAW
HERSCH LAUTERPACHT MEMORIAL LECTURES
BREACH OF TREATY
by
SHABTAI ROSENNE
CAMBRIDGE
GROTIUS PUBLICATIONS LIMITED
1985 CLASSIFICATION OF TREATIES 101
serves as another indication of the great care thar must be exercised
before conduct or actions of Governmems are formally castigated
as breach, and it leads to the thought thar while in given cir
cumstances conduct or action may constitute an international
wrongful act from the point of view of Pan 0 ne of the law on State
responsibility,twould seem to be diplomatically desirable to fnd a
wayto formulate the law on this point in a manner that it would not
be based actually or notîonally on pejorative concepts such as
"breach" or "viola:tion". Would it not be sufficient a basis, in most
cases, to say thar conduct which is not compatible wirh duly inter
preted international obligations of the State concerned can be the
origin of an instance of international responsibility?
3. THE CLASSIFICATION OF TREATIES FOR PURPOSES OF BREACH
1t is now obvîous, whether Riphagen'ssubsystem approach îs the
final basis for Part Two·of the articles on State responsibility or not,
that whatever may have been the justification for the unwillingness
or inability of the International Law Commission tobase its work
on the law of the treary-instrument on any formai classification of
rrearies {which, indeed, became unnecessary after it was realized
thar what was being codified was the law relatingtothe instrument
and not the law relating ro the obligation, and after the Commission
rejected proposais entitling ''all States" to become parties to
treaties, leaving the question of participation to the negotiating
States), different considerationswill apply when we come to deal
with the question of treaty-obligations and the breach of those
obligations as the origin of the State responsibility. Here it seems
thar a functional classification, whiit wilnor be easy to compose,
is called for, so asto supply a subsystematic regime within the
framework of which the treary as a whole in general, and th_e
allegedly breached provision of a given rreaty in particular, can be
situated and weighed before the default can be definitively
established.
Norwithsranding this, the classification of treary-instruments,
largely formai though it might be, cannot be entirely ignored for
this purpose, and we have already seen thar the treatment of
material breach of arnultilateral treaty within the framework of the
law of treaty-instruments, poses a whole series of problems which
do not arise in the case of a bilateral treary. We must therefore first
take note of the types of rr~aty-inst rauwhicnt te Vienna102 M!SCELLANEA AND CONCLUSIONS
Convention of 1969 refers specifically (sorne of them ar.e also
repeated in the 1978 Convention), since sorne of them certainly
contain within their typical context special provisions for dealing
with breach. These include: international agreements berween
States and other subjects of international law; international agree
ments berween other subjects of international law; international
agreements not in written form (a topic which we have left aside in
these lectures, although in principle the international obligations
derived from these agreements are no different from international
obligations derived from agreements in written form, that is, a
rreaty}; constituent instruments of international intergovern
mental organizations (these are usually self-policing by the
organization, with expulsion from the organization as the ultimate
sanction); rreaties adopted within an international intergovern
mental organization; treaties authenticated in rwo or more
languages; successive rreaties relating to the same subject matter (a
matter which can lead to a parricular kind ofbreach); unamended
rreaties; treaties conflicting with a perernptornorrn of inter
national law; invalid rreaties (philosophically, a contradiction in
terrns!); multilateral treaties; bilateral treaties; a treaty establishing a
bqundary; treaties for which there is a depositary; and (by implica
tion) treaties concluded between a limited number of Stàtes.
Most of the types of rreaty mentioned in this list are clearly
references to the instrument as such, but sorne aspects of that
typology apply as much if not more to the substance than to the
forrn, or are a combinatioofb~t Thhis rernark applies notably to
the treatv which is or contains the constituent instrument of an
intern organizatin,a successive treaties relating to the same
subject matter, a rreaty conflictingwith a peremptory norrn ofinter
nationallaw, and a treary establishing a boundarAt one time the
Commission, no doubt responding to the earlier doctrinal distinc
tion berween what were called traitésind traités-contr,roposed
using the terrn "general multilateral treaty". This was defined for
the purposes athand as a multilateral rreatywhich concerns general
norrns of international lawor deals with matters ofgeneral interest
to States as a whole. But that was dropped partly under the impact
of criticism of Governments and partly because it was found to be
unnecessary as the work of codification progressed, especially àfter
the Commission had reached a negative decision on what was then
the thorny questionof panicipation as of right by ali States in cer
tain treaties-anissue which since 1974 has lost its political status
and no longer seriously interferes withodern treaty making. 25
25U.N. General Assembly Resolution 3233 (XXIX), 12 November 1974·. Çï10:.1E...,Oil102!VOlL::&CL:::OJLLZZ:U 1co
But clearlv classifications of this character would have little
relevance ro {hemajor issues ofbreach of rreary-obligations and the
ensuing responsîbiliry of States. Ir would be tempting to return to
and trv and refine the distinction berween the traité-contrat and the
trai at exp-ound~ediin the weil known writings on the topic. But
this too does not seem ro be adequate or practical to reflect the
complex body of aims and abjects for which the modern treaty is
employed. As 1.Paenson bas recendy pointed out:
For purposes of classification international treaües may, in theory, be
divided into various categories according to their abject, but one
should bear in minci thar each tr26tv comains, as a rule, elements
belonging to different categories. "'
One must reach out for a more sophisticated and at the sa_merime
more praçtice-oriented and functional system of classification.
Although not designed scientifically for thar purpose, a starting
point, a rough-and-ready one iris true, for such a classification can
.be found through the general table of contents of the annual
publication of the United Nations Secretariat entided Multilateral
TreatiesDepositedwith the Secretary-Generaf.2'Thar table of contents
includes 28 arbirrarily but instinctively chosen major functional
groupings of trearies, each one of which (with perhaps isolated
exceptions) could constitute a subsysrem or even a sub-subsystem
for the purposes of analysing the rotality of the treary-regime or
regimes wirhin which a given treaty provision, breach of which is
alleged in a concrete case, could be placed. They are as follows: I.
Charter of the United Nations and Stature of the International
Court of Justice (in fact this could be broadened to include ali
rreaties which comprise in themselves or which contain the
constituent instrument of an international intergovernmental
organization, whether thar is the sole purpose of the rreary as in the
case of the United Nations Chaner, or whether the constituent
instrument is part of a treary ofbroader but functional scope, such
as the constitution of the International Civil Aviation Organization.
which ispart of the 1944 Chicago Agreement on Civil Aviation, 28or
the 1982 United Nations Convention on the Law of the Sea which
contains among its provisions the constituent instruments of at
least cwo new international organizations, the International Sea-
26
I.Paenson,ManualoftheTenninologyofPublicInternationalLaw (Peace)and Inter
nationalOrganizations(1983), p. 268, §204.
21ST/LEG/SER.E/-.
lB15 U.N.T.S298. 104 MISCELLANEA AND CONCLUSIONS
Bed Authoritv and the International Tribunal for the Law of the
Sea); Il. Pacifie seulement of imernational disputes; III. Privileges
and immunities, diplomatie and consular relations; IV. Human
righrs; V. Refugees and stateless persans; VI. Narcotic drugs and
psychotropic substances; VII. Traffic in persans; VIII. Obscene
publications; IX. Health; X. International trade and development;
Xl. Transport and communications, subdivided imo (a) customs
matters, (b)road traffic, (c)transport by rail, (d)water rranspon and
(e) multîmodal transport; XII. Navigation; XIII. Ecunomic statis
tics; XIV. Educational and culcural macrers; XV. Declaration of
death of missing persans;XVI. Sratus ofwomen; XVII. Freedom of
information; XVIII. Miscellaneous penal marters; XIX. Com
modities;XX. Maintenance obligations; XXI. Law of the sea; XXII.
Commercial arbitration; XXIV. Outer space; XXV. Telecom
munications; XXVI. Disarmamenr; XXVII. Environment; and
XXVIII. Fiscal matters.
These are ali multilareral-treaties. When we turn to bilateral
treaties further functional distinctions can be found. Paenson 29
refers to political treaties, treaties of rnutual assistance, rreaties of
alliance, non-aggression treaties, treaties of neutrality, rreaties of
guarantee, treaties esrablishing a protecrorate, treaties governing
the boundary regime (which may not be the same as the Vienna
Convention classification of a treaty establishing a boundary),
peace treaties, economie and social treaties including rreaties of
navigation, friendship treaties, establishment treaties, most
favoured-nation clauses, agreements on scientific and technical
collaboration, agreements on culmral collaboration, treaties on
international legal assistance and extradition treaties. There are
'• .series of treaties on maritime matters as distinct from the law of the
sea,and another series on private international law, and one could
go on and on. The Labour Conven~o ars a dass of their own.
Sorne of these treaties belong to weildefined branches oflaw, both
international and dornesric. Others are still in an embryonic stage.·
Sorne have built-in procedures for dealingwith alleged breach {pre
served, as regards both the instrument and the obligation by anicle
60, paragraph 4, of the Vienna Convention), while others leave the
issue of breach to be dealt with through the normal legal,
diplomatie or organizational procedures.
The reader who looks closely at the treaties which come within
these groupings, especially, to simplify matters, the detailed list
conrainèd in the tableofcontents ofthe United Nations publication
29
Paenson,op.ât., p. 268. -.--···-··------------~
CLASSIFICATION OF TREATIES 105
already memioned or, to take another outstanding example, the
International Labour Organisation's International Labour Conventions
and Recommendations 191 9-1 981, armnged by subject matter (1982),
cannat fail to be struck by the great variety of topics which forrn the
principal subject matter of these treaties, and the great variety and
mulriplicity of processes which have been and are continuously
being evolved to meet the practical requirements of the States
concerned, especially in the related aspects of monitoring and the
treatment of, or more often as not the avoidance of, breaches of
their provisions.
Let us take the law of diplomatie privileges and immunities, and
more especiall y the law relating to the protection and safety of
diplomats, concerning which, as we have seen earlier, Professer
Ago as special rapporteur on the tapie of Srare responsibiliry, had
sorne perhaps surprising remarks. Breaches of this branch of the
· law have now become an international scourge, so much so thar.
above the turmoil and turbulence of international relations in
general, the General Assembly has gradually but unobtrusively
been work.ing out over the last few years new systems for dealing
with this; and by blunting the force of the so-called "political
crime" as a ground for non-extradition of a person wanred for this
k.indof offence or as an excuse for inaction and non-co-operation
berween national police forces and their imernational counterparts
in these matters, may have made a significam practi cal contribution
w the alleviation of this problem. This action of the General
Assembly, so far always adopted by sorne form of consensus, is of
course based on a common interest of ali coumries in the main
tenance of the general fabric of the law of diplomatie and consular
relations, and the procedure thar has been adopted faithfully
reflects this point of deparrure.But the existence of a common
imerest of this character is not always present, even as berween the
co-conrracting States of a multilateral treaty rn~ or and universai
impon, and fundamemal conceptual differences of approach may
render more difficult the adoption and even more so the practical
application of measures designed to forestall or minimize the
effectsf a breach of those treaties. ·
The classification of treaties for purposes of breach, and more
precisely for the determination of the rules of law for repairing the
consequences of breach of treaty as being an imernationally
wrongful act giving rise ta a daim toreparation, is thus seen to be
inherently difficult and polîtical1y delicate at the san1e rihealso
runs imo many theoretical difficulties of conceptual jurisprudence,
rendered more acute in an expanding international society. These106 MISCELLANEA AND CONCLUSIONS
difficulties and others, especially the appropriateness of the various
kinds of restitution and reparation usually discussed in the conrex[
of State responsibility, lead to the question whether it is really
possible to arrive at a single unitary set of rules for the ropic, or
whether the multipliciry of reservations which will certainly be
required, or their generality, may not make it preferableto exclude
from Ùlederailed lega1treaonent of the consequences of an inter
national!y wrongful act when that wrongful act originated in a
breach of treaty. This indeed goes to the hean of the matter. Given
the absence of permanent independent determinative machinery
whether judicial or not, given the open-endedness of Article 33 of
the United Nations Charter and the difficulties of concretising,
monitoring and establishing dispute seulement procedures in any
given case, it seems that only a negative answer can be given to
our question.
In short, while breach of a rreat)rlike any other internationally
wrongful act creates a new legal situation between the defaulting
State and the other States concerned in the treaty, the problem of
repairing that new legal situation, which has been placed at the
hean of the codification of the law of State responsibility, does not
appear to provide an adequate basis for the treaunem of this
branch of international relations. These difficulties are increased,
not reduced, by the complex but limited provisions of the Vienna
Convention, with their general thrust towards preserving the
integrity of international rreaty relations. In addition, the danger
exists thar to attempt toeet this problem within the framework of
a general statemem of the law of Sta.te ·responsibility may
overcharge that topic, something which, we believe, it would be in
the general interestto avoid.
4. THE ENFORCEMENT OF INTERNATIONAL lAW AND
BREACH OF TREATY
1tshould by now be clear that the questions of breach of tre~ry
(which of necessity raise issues of interpretation and application of
the treaty and can,as we have seen, if the will is there be disposed
of in that context thus avoiding pejorative political assertions),
questions of the possible reactions to the breach including· the
separability of treaty provisions in these circumstances, as well as
acts of reprisal and retorsion (within the limits imposed by the
Charter of the United Nations), or indeed of the very nature of the
Written Comments of the Government of Malaysia on the Written Submissions of the United Nations and Other States