EXPOSÉS ÉCRITS
WRITTEN STATEMENTS TABLE DES MATIÈRES - CONTENTS
Requêtepour avis consultatif- Request for Advisory Opinion
THE SECRETARY-CENER OF THE UNITEDNATIONS TO THE PRESIDENT
OF THE ~NTERNATIONAL COURT OF JUSTICE. ..........
Annexes
1.A. 1989/75. Status of special rapporteur.........
1.B. 1989/75. Statut des rapporteurs spéciaux ........
II. Vote on amendment to tex1 on special rapporteur's statu...
III. Vote on status of special rapporteu...........
II. Vote sur l'amendement du texte relatif au statut de r..oorteur
spécial .......................
III. Vote sur le statut des rapporteurs spéciaux........
Dossier transmis par le Secretaire gbnéraldes Nations Unies (article 65,
General of the United Nations (Art. 65, para. 2, of the Statute)y-
INTRO~UCTOR NOTE. ..................
Framework of the Dossier...................
Introduflion to Part 1:Materials relating to the proceedings leading
to the request by the Council for au advisory opinion ....
lntroduction to Part II: Materials relevant to the Convention on
the Privileges andlmmunities of the United Nations .....
lntroduction to Part III: Materials relevant to the ~iatus of experts
on missions. .............. : .....
Introduction to Part IV: General materials .........
Iniroduction to Pari V: Malerials relating io devclopments following
the request by the Economis and Social Council for an advisory
opinion
CONTENTS OF THE DOSSIER (urider this heading are listed the titles
of the documents reproduced, while the titles of those not
reproduced are mentioned in the text) ...........
Part 1.Materials relating to the proceedings leading to the request
by the Economic and Social Council for an advisory opinion. .
Commission on Human Rights: fortieth session (Gcneva.
6 February-16 March 1984). .............
Report on the fortieth session: Chapter XXIV. Election of
members of the Sub-Commission on Prevention of Discrimi-
nation and Protection of Minorities. .........
Commission on Human Rights: forty-first session (Geneva,
4 February-15 March 1985). .............
Reof youth in the field of human rights, particularly inhe roleX TABLE DES MATSRES - CONTENTS
+'O@
achieving the objectives of the International Youth Year:
Participation, Development, Peace .......... 26
Sub-Commission on Prevention of Discrimination and Protection
of Minorities: thirty-eighth session(Geneva, 5-30 August 1985) 28
Report on the thirty-eighth session: resolution 1985/12. Human
rights and youth ................. 28
Relevant correspondence and communications between 18March
1986and 15May 1987. ............... 29
Letter dated 18 March from Mr. Mazilu to the Centre for
Human Riehts. ................. 29
Letter dated May 1986from the Chief, Research, Studies and
Prevention of Discrimination Section, Centre for Human
Rights. to Mr. Mazilu ............... 29
Letter dated 5 June 1986 from the Chief, Research, Studies
and Prevention of Discrimination Section, Centre for
Human Rights. to Mr. Mazilu. ........... 30
Letter dated 8 October 1986from the Chief, Research, Studies
and Prevention of Discrimination Section. Centre for
Human Rights. to Mr. Mazilu. ........... 30
A (sample) note verbale dated 9 January 1987to Governments 31
Letter dated 15May 1987from the Research and Studies Unit,
Prevention of Discrimination and Protection of Minorities
Section, Centre for Human Rights, to Mr. Mazilu trans-
mitting information received in response to the notes verbales
of 9January 1987. ................ 32
Economic and Social Council: organizational session for 1987
(New York), 3-6 February 1987). ........... 32
Decision 1987l102, Term of office of the current members of
the Sub-Commission on Prevention of Discrimination and
Protection of Minorities, adopted on 6 February 1987. ..
Commission on Human Rights: forty-third session (Geneva,
2 February-13 March 1987). .............
Resolution 1987/44. The role of youth in the field of human
rights, particularly in achieving the objectives of the
International Youth Year: Participation, Development,
Peace, adopted on 10 March 1987 ..........
Correspondence on 14May 1987 ............
Letter dated 14 May 1987 from the Officer-in-Charge,
Research, Studies and Prevention of Discrimination Section,
Centre for Human Rights, to Mr. Mazilu .......
Sub-Commission on Prevention of Discriminalion and ProTectiori
of Minorities: thirty-ninth session (Geneva, 10 August-
4 September 1987) .................
Summary record of the 5th meeting ..........
Correspondence and communications between 10 August 1987
and 1l February 1988. ...............
Telex dated 18 August 1987 under the name of MI. Mazilu,
addressed 10 the Chairman of the Sub-Commission .... Letter dated 3 November 1987 from the Under-Secretary-
General for Human Rights 10Mr. Mazilu. .......
Cable dated 17 December 1987 from the Under-Secretary-
General for Human Rights to Mr. Mazilu. .......
Letter postmarked 25 December 1987from Mr. Mazilu to the
Under-Secretarv-General for Human Riehts
Letter postmarked 29 December 1987frok Mr. Mazilu to the
Under-Secretary-General for Human Rights. ......
Cable dated 19 January 1988 from the Under-Secretary-
General for Human Rights to the Acting Director, United
Nations Information Centre, Bucharest. ........
Letter (undated) from Mr. Mazilu to the Under-Secretary-
General for Human Rights transmitted by a letter dated
20 January 1988 from the Acting Director, United Nations
lnlormation Centre, Bucharest. ...........
Cable dated 21 January 1988 from the President of the United
Nations Association of Romania to the Centre for Human
Rights.....................
Letter dated II Febriiary 1988 from the Under-Secretary-
General for Human Rights to the Acting Director, United
Nations Information Centre, Bucharest. ........
Commission on Human Rights: forty-fourth session (Geneva,
1 February-il March 1988). .............
Report on the forty-fourth session: Chapter XXIV. Election
of members of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, paragraphs
595-599 ....................
Correspondence and communications between 5 April and
19August 1988 .................
Letter dated 5 April 1988 from Mr. Mazilu to the Under-
Secretary-General for Human Rights .........
Letter from Mr. Ion Diaconu dated 29 March 1988 to
the Chairman of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities transmitted
by a note verbale dated 8 April 1988 from the Permanent
Mission of Romania Io the United Nations in Geneva. , .
Letter dated 19 April 1988 from Mr. Mazilu to the Chairman
and members of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities. ......
Letter dated 19 April 1988 from Mr. Mazilu to the Under-
Secretary-General for Human Rights .........
Letter dated 6 May 1988 from the Under-Secretary-General
for Human Rights to the Permanent Representative of
Romania to the United Nations Office at Geneva ....
Letter dated 6 May 1988 from the Under-Secretary-General
forHuman Rights to Mr. Mazilu ..........
Letter dated 8 May 1988 from Mr. Mazilu to the Under-
Secretary-General for Human Rights .........
Letter dated 8 May 1988 from Mr. Mazilu to the Chairman of
the Sub-Commission on Prevention of Discrimination and
Protection of Minorities.............. TABLE DES MATIERES - CONTENTS
Letter dated 17 May 1988 from Mr. Mazilu to the Under-
Secretary-General for Human Rights .........
Letter dated 19 May 1988 from the Centre for Human Rights
to Mr. Mazilu transmitted through the Acting Director,
United Nations Information Centre, Bucharest. .....
Le~ ~ ~ ~~ ~ 15 ~une 1988 fr~m t~e Under-Secretarv-General
for Human ~ights to the Permanent RepreseGative of
Romania to the United Nations Office at Geneva. ....
Letter dated 27 June 1988from the Permanent Representative
of Romania to the United Nations Office at Geneva to the
Under-Secretarv-General for Human Rinhts. ......
Telex receised 24.~~1~1988from Mr. ~iaconu to the Chairman
of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities .............
Letter dated 1 July 1988from the Under-Secretary-General for
Human Rights to the Permanent Representative of Romania
to the United Nations Office at Geneva ........
Cable dated 9 August 1988 from the Under-Secretary-General
for Human Rights to Mr. Mazilu ..........
Telex dated 10 August 1988 from the Officer-in-Charge.
United Nations lnformation Centre, Bucharest, to the
Under-Secretary-General for Human Rights. ......
Telex dated II August 1988from the Under-Secretary-General
for Human Rights to the Officer-in-Charge. United Nations
Information Centre, Bucharest. ...........
Cable dated II August 1988from the Under-Secretary-General
for Human Rights to Mr. Mazilu. ..........
Letter dated II August 1988from Mr. Mazilu to the Chairman
of the Sub-commission on Prevention of Discrimination and
Protection of Minorities ..............
Letter dated 19 August 1988 from Mr. Mazilu to the Under-
Secretary-General for Human Rights. .........
Sub-Commission on Prevention of Discrimination and Protection
of Minorities: fortieth session (Geneva, 8 August-2 September
1988)-. .....................
Report on the fortieth session: decision 1988/102. Organization
of work: reoort bv Dumitru Mazilu. adooted on 15 Aueust
. .
Report on the fortieth session: resolution 1988/37. Prevention
of discrimination and orotection of children: human riehts
and youth, adopted on'l September 1988. ..... -. .
Report on the fortieth session, paragraphs 11-25and 416-420. .
Summary record of the 2nd meeting ..........
Summary record of the 5th meeting. ...........
Summary record of the 7th meetina. ..........
~ummar; record of the 9th meeting. ..........
Summary record of the 14th meeting ..........
Summary record of the first part of the 32nd meeting. ...
~ummary record of the second part of the 36th meeting. ..
Memorandum dated 23 August 1988 from the Office of Legal
Affairs to the Under-Secretary-General for Human Rights. . TABLE DES MAmRES - CONTENTS
Memorandum dated 30 August 1988 from the Legal Counsel
to the Under-Secretary-General for Human Rinhts ....
-
Correspondence and communications from 26 October 1988 to
6 January 1989 ..................
Note verbale dated 26October 1988from the Secretary-General
of the United Nations to the Permanent Representative of
Romania to the United Nations in New York ......
Letter dated 19 December 1988 from the Under-Secretary-
General for Human Rights to the Permanent Representative
of Romania Io the United Nations Office at Geneva ....
Letter dated 19 December 1988 from the Under-Secretary-
General for Human Rights to Mr. Mazilu .......
Aide-memoire delivered on 6 January 1989 to the Legal
Counsel by the Permanent Representative of Romania. ..
Commission on Human Rights: forty-fifth session (Geneva,
30 January-IO March 1989). .............
Note by the Secretary-General pursuant to paragraph 2 of
resolution 1988/37 of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities. ......
Summary record of the second part of the 51st meeting ...
Report on the forty-fifth session: resolution 1989/37. Status of
special rapporteurs, adopted on 6 March 1989. .....
Correspondence and communications during May 1989 ....
Letter dated 5 Mav 1989 from the Under-Secretarv-General
for Human ~ights to the Permanent ~e~reseniative of
Romania to the United Nations Office at Geneva. ....
Letter dated 5 Mav 1989from the Under-Secreta~v~ ~ ~ral for
Human Rights [O Mr. Mazilu .............
Letter dated 5 May 1989 from Mr. Mazilu to the Secretary-
General and to the Chairman of the Sub-Commission ...
Letter dated May 1989from Mr. Mazilu Io the Under-Secretary-
General for Human Rights .............
Letter dated May 1989from Mr. Mazilu to the Under-Secretary-
Gcneral for Human Rights .............
Letter dated May 1989 from Mr. Mazilu to the Secretary-
General and the Chairman of the Sub-Commission ....
Economic and Social Council: first regular session of 1989
(New York, 2-26 May 1989) .............
16th meeting: unofficial sound transcript. ........
Resolution 1989/75. Status of special rapporteurs, adopted on
24 May 1989
Part II. Materials relating to the Convention on the Privileges and
lmmunities of the United Nations ............
Other materials ...................
General Assembly resolution 22 A (I), adopted on 13 February
1946 .....................
Accession, succession and reservations to the Convention on
Privileges and lmmunities of the United Nations. 1946 . . Aide-mémoiredated 26 August 1960 from the Department of
Legal Affairs to the Permanent Mission of a Member State
Part 111.Materials relevant to the status of experts on mission . .
Memorandum dated 17 April 1981 from the Assistant Ad-
ministrator, Bureau for Finance and Administration, to the
field offices of UNDP and UNDP headquarters staff. ...
Sample of Special Service Agreement (Expert on Mission)
Relations between States and international organizations (second
part of topic) (International Law Commission. thirty-seventh
session, 6 May-26 July) (extracts). ...........
Part IV. General materials relevant to the case ........
Commission on Human Rights: terms of reference. .....
Economic and Social Council resolution 5 (l), adopted on
16 February 1946. ................
Sub-commission on Prevention of Discrimination and Protection
of Minorities: terms of reference. ...........
Commission on Human Rights, report of the Commission on
its fifth session, Chapter IV. paragraph 13 .......
Other materials ...................
General Assembly resolution 89(1) ...........
Part V. Materials relating to developments following the request
bv the Economic and Social Council for an advisory opinion. .
Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities: forty-first session (Geneva, 7 August-
1 September 1989) .................
Report on human rights and youth prepared by Mr. Dumitru
Mazilu, Special Rapporteur .............
Report on human rights and youth prepared by Mr. Dumitru
Mazilu, Special Rapporteur, Addendum ........
Note verbale dated 15August 1989from the Permanent Mission
of the Socialist Republic of Romania to the United Nations
Office at Geneva addressed to the Centre for Human Rights
Draft report on the forty-first session: Chapter XVI. Promotion,
protection and restoration of human rights at national,
regional and international levels ...........
Summary record of the 1st meeting. ..........
Summary record of the 4th meeting. ..........
Summary record of the 6th meeting. ..........
Summary record of the 8th meeting. ..........
Summary record of the 10th meeting ..........
Summary record of the 26th meeting ..........
Compte rendu analytique de la premièrepartie de la 35eséance
Summary record of the 39th meeting ..........
Statement of Mr. 1. Diaconu. the exDert from Romania. made
on 30 August 1989 ................
Statement of the Under-Secretary-General for Human Rights,
made on 30 August 1989. .............
Draft report on the forty-first session. ......... TABLE DES MATIERES - CONTENTS XV
Exposésécrits - Written Stalements
WR~TTENSTATEMENTSUBMI~ED ON BEHALF OF THE SECRETARY-
GENERAL OF THE UNITED NATIONS . . . . . , , . . , , . .
Introduction . . . . . . , . . . . . . . , , . . , , .
1.Summary of the facts giving rise to the request for an advisory
opinion , . . . . . . . . . . . . . , , . . . . .
A. Appointment of Mr. Mazilu as Special Rapporteur on
"Hunan Rights and Youth" . . . . . . . . , . . .
B. The thirty-ninth session of the Sub-Commission. . . . .
C. Communications between Mr. Mazilu and the Centre from
the thirty-ninth to the fortieth session of the Sub-
Commission . . . . . . . . . . . . . . , . . .
D. Expiration of Mr. Mazilu's term as a member of the Sub-
Commission . . , , . . . . . . . , , . . . . .
E. Requests addressedto the Romanian Government to enable
the completion of the human rights and youth report by
Mr. Mazilu . . . . . . . . . . . . . . . . . .
F. The fortieth session of the Sub-commission . , . . . .
C. The legal opinions of the Office of Legal Affairs . . . .
H. Sub-Commission resolution 1988/37 on the preveniion of
discrimination and protection of children: human rights and
youth
1. ~xchanee-of corresoondence between the S~c~-t~ ~~ ~,~ - ~
and the Permanent Representative of Romania . . . . .
J. The Secretary-Ceneral's report to the Fifth Committee of the
General ~ssembly at its forty-third session . . . . . .
K. The request for an advisory opinion . . . . . , . . .
L. Further communications from Mr. Mazilu . . . . . .
II. The propriety of the Economic and Social Council addressing its
question to the International Court of Justice and of the Court
responding thereto . . , . . . , , . . . , , . . . ,
A. The authority of the Economic and Social Council . . .
B. The effect of the Romanian reservation to the General Con-
vention . . . . . . . . . . . . . . . . . . . .
C. The discretion of the Court to give an advisory opinion-. .
111.The Convention on the Privileges and lmmunities of the United
Nations (the "General Convention") . . . . . . . . . . 184
A. Historv of and oarticioation in the Convention . . . . . 184
B. The leial ualusof thekon\ention vis.i-vis the Organi7aiion 184
C. Inicrpretaiion of the Conveniion . . . . . . . . . 185
IV. The concept of "experts on missions'' under the General Con-
vention . . . . . . . . . . . . . . . . . . . . . 185
A. The text and the formulation of the Convention . . . . 185
B. Relevaiit practice under the Convention . . . . . . . 186
C. The scope of the privileges and immunities accorded to
experts on missions . . . . . . . . . . . . . . . 188
D. ~he status of experts on missions vis-à-vistheir own Govern-
ments or in their own countries . . . . . . . . . . 188XVI TABLE DES MATIERES - CONTENTS
V. The status of rapporteurs of the Sub-Commission under the
General Convention ................
A. The status of members of the Sub-Commission .....
B. Rapporteurs and special rapporteurs of the Sub-Commission
VI. The situation of Mr. Mazilu .............
A. Mr. Mazilu's appointment as Special Rapporteur ....
B. The continuation of Mr. Mazilu's appointment as Special
Rapporteur ..................
C. Mr. Mazilu's status as an expert on mission......
Conclusion .....................
Annex I. Examples of categories of persons considered to be "experts
on missions for theiiited Nations" within the meaning of Ar-
ticle VI. Section 22, of the General Conveiition....
Annex II. A. List of Rapporteurs and Special Rapporteurs of the
Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities who completed their assignments after the
exoiration of their terms of office as members of the Sub-Com-
mission .....................
B. List of persons appointed by the Sub-Commission as Rap-
porteurs or Special Rapporteurs who were not members of the
Sub-Commission .................
Mémorandum relatif à la requêtepour avis consultatif transmisA
la Cour internationale de Justice en vertu de la résolution 1989/75
du Conseil économiaue et social du 24 mai 1989
Annexe .......................
LETTRE DU IURISCONSULTE ET DIRECTEUR GÉNERAL DES AFFAIRES JURI-
DIQUES DU MINISTERE FEDERAL DES AFFAIRES ETRANGER DEELA REPU-
BLIQUE FEDERALE D'ALLEMAGN AE GREFFIER ........
WRITTENSTATEMEN TF THE GOVERNMEN OTF THE UNITEDSTATES
OF AMERICA .....................
Introduction .....................
A. The Court's jurisdiction ..............
B. The Court's discretion ........... : ...
Factual background ..................
A. Ao..intment of Dumitru Mazilu as Soecial Ran. .teur of the
Sub-Commission .................
B. Actions by the Government of Romania to prevent Dumitru
Mazilu from fulfilling his dulies as Special Rapporte...
Applicability of Article VI, Section 22. of the Convention on the
Privileges andlmmunities of the United Nations.......
A. As a Special Rapporteur of the Sub-Commission Dumitru
Mazilu is an expert on a mission for the United Nations within
the meaning of Article VI.............. TABLE DES MATIÈRES . CONTENTS xnt
B . The provisions of Article VI apply as between Romania and
Mr .Mazilu. a Romanian resident national .......
Conclusion .....................
WRtTTEN STATEMEN OF THE GOVERNMEN OTCANADA ....
ADDITIONA COMMENT OSTHE GOVERNMEN OTTHE UNITED STATESOF
AMER~CA .......................
Introduction .....................
1. Jurisdiction of the Cou...............
A. The Court has jurisdiction to render this advisory opinion
under Article 96 of the Charter and United Nations General
Assembly resolution 89 (1.............
B. Romania's reservation to Section 30 does not affect the
jurisdiction of the Court Io render this advisory op. .on
C. The Court has jurisdiction to render this advisory opinion
whether or not a dispute exists between the United Nations
and Romania ..................
II.Applicability of Article VI. Section 22. of the General Conven-
tion to Mr. Mazilu .................
A. The status of M.Mazilu as a special rapporteur of the Sub-
Commission has not terminated ...........
B. Special rapporteurs of the Sub-Commission are experts on
missions for the United Nation...........
C . As a special rapporteur. Mr . Mazilu is entitled Io the
privileges and immunities specified in Article VI. Section 22
Conclusion .....................
Exposésoraux . Oral Staternents
OUVERTUR DEE LA PROCÉOURE ORALE ............
Ow STATEMEN BTYMR .FLEISCHHAUE R..........
1.Updating the factual background ...........
II.The competence of the Court .............
III.Experts on missions under the General Convention ....
IV .Privileges and immunities of experts on mission.....
V .Status of experts is not related to nation.......
VI .Status of Mr.Mazilu ................
Conclusion .....................
ORALSTATEMENT BY MR .SOFAER ..............
Introduction .....................
Jurisdiction .....................
Merits .......................
Conclusion .....................
QUEST~ON DS M . GUILLAUM ET DU PRÉSIDENT ........
Question de M .Guillaume ...............
Questions du Président.................KVlll TABLE DES MATIERE. CONTENTS
Poge
REPLY BYMR .FLEISCHHAU TEQUESTION PST BYJUDGE GUILLAUME
AND BY THEPRESIDEN ................. 249
Questionby JudgeGuillaume .............. 249
Firstquestionby PresidentRuda.......... 250
Second questiony PresidentRuda .......... 250
Thirdquestionby PresidentRuda........ 251
Correspondance. Correspondence. , .......... 257174 PRIVILEOES AND IMMUNITIESOf THE UNlIEO NATiONS
A. Appoinrmenf of Mr. Mazilu as Special Rapporfeur on
"Humon Righfs and Youlh"
6. On 13March 1984the Commission. uoon nomination of Romania. elected
Mr. Dumitru Mazilu, a Romanian citizen; to serve in his personal capacity as
a member of the Sub-Commission for a three-year term, due to expire on
31 December 1986(docs. Nos. 1. IA).
7. Pursuant Io the Commission's resolution 1985/13 calling upon the Sub-
Commission to pay due attention to the role of youth in the field of human
riahts (doc. No. 3). the Sub-Commission at its thirty-eiahth sessionon 29Auaust
1$85adopted resolution 1985/12entrusting Mr. &ilÜ with the preparation of
a report on "human rights and youth" (doc. No. 6). This report was to be sub-
mitted under an agenda item entitled: "promotion, protection and restoration
of human rights at national, regional and international levels", at the thirty-
ninth session of the Sub-Commission scheduled for 1986. Sub-Commission
resolution 1985/12 was endorsed bv the Commission in its resolution 1987/44
of 10 March 1987, whereby it req;ested the Secretary-General to provide al1
necessary assistance to the Sub-Commission's rapporteur on human rights and
youth for the completion of his task (doc. No. 15).
B. The Thirv-ninfh Session of the Sub-Commission
8. For linancial reasons the thirty-ninth session of the Sub-Commission was
not convened in 1986but was rescheduled for 1987. Consequently, the three-
year mandate of ils members - originally due to expire on 31 December 1986
- was extended by ECOSOC resolution 1987/102 for an additional year (doc.
No. 14). The presentation of Mr. Mazilu's repon was thus automatically de-
ferred to 1987.
9. When the thirty-ninth session of the Sub-Commission opened in Geneva
on 10August 1987.Mr. Mazilu was not oresent. nor was his reoort submitted.
At the 5th meeting of that session held 8n 12 August 1987,thérepresentative
of the Secretary-General said that by a letter transmitted to him that very morn-
ing, the Permanent Mission of Romania had informed the United Nations
Office in Geneva that Mr. Mazilu had suffered a heart-attack and was still being
held in a hospital (doc. No. 18. para. 27). Later there was received a telegram
signed "D. Mazilu" and dated 18August 1987,regretfu11yinformingthe Sub-
Commission of his inability, due to heart illness, to attend the current session
(doc. No. 19).
10. In the liaht of these communications. the Sub-Commission adooted deci-
sion 1987/112on 4 Septcmber 1987,whereby ildefcrred consideration of iiem
14of ils agenda - under which ihe human righls and youih repon was due 10
be discussed - io ils forrinh session schcduled for 1988(E/CN.4/1988/37 -
E/CN.4/Sub.2/1987/42. p. 54). Notwithsranding the scheduled expiration on
31 Dcccmber 1987of Mr. Mazilu's iermas a mcmbcr of the Sub-Commission,
the latter included a reoort on the "Prevention of discrimination and orotection
of childrcn: human rkhis and youth". ro be submitted by him (identified by
name), in the provisional agenda of iis fortieth session, as iiem 15(d~.The Sub-
Commission also rcfcrred 10 thai reoort in Chaoter II. entiiled "Srudies which
do not imply new financiai implicaiions", of the ''~iit of studies and reports
under preparation by members of the Sub-Commission in accordance with the W~EN STATEMENT OF THE SECRETARY-OENERU 175
existing legislative authority" (E/CN.4/1988/37 - E/CN.4/Sub.2/1987/42,
pp. 120and 135).
C. Communications belween Mr. Mazilu and the Centre from the
Thirty-ninrh to the Forrierh Session of the Sub-Commission
II. After the thirty-ninth session of the Sub-commission, the secretariat of
the Centre forHuman Rights made various attempts Io contact Mr. Mazilu and
to nrovide him with assistance in the preparation of his report, including ar-
ranging a trip to Geneva. Thus, in a IefteÏdated 3 ~ovember 1987,the under-
Secretary-General for Human Rights assured Mr. Mazilu that al1relevant infor-
mation suhmitted bv Governments, interaovernmental oraanizations and non-
governmental organizations would be regÜlarlysent to hii, and that financial
resources for his missionto Geneva had already been approved (doc. No. 20);
indeed. such informations were sent to him on a reaular basis (see. ex.. doc.
No. 13 and Introduction IO the Dossier, para. Y). in a subrcqucnt tekgram,
dated 17December 1987.the Under-Secretary-Ceneral requested a prompt rcply
to hi\ 3November letter. and in particular with respec10hlr. )rfazilu'scvcnlual
proposals for assistancc in the prcparation of his report (doc. No. 21). Having
receivcd from Mr. hlarilu tuo Irttcrs postmarked 25 and 29 Decçmber 1987
(docs. Nos. 22,23), whereby he indicatëd that he had not receivedthe previous
communications of the Centre, the Under-Secretary-General, in a telegram
dated 19 Januarv 1988 and addressed to the Acting Director of the United
Nations lnformation Centre (UNIC) in ~uchûresi. requcsted the latter's
arsiqtancein facilitating hlr. hlazilu's uork on his report by\cr\,ingas a chaiincl
throuah whicha ticket io Gcncva would be pro\,ided to hlr. hlarilu; ihe Undcr-
~ecrekr~-General also asked that a formal invitation be communicated to
Mr. Mazilu to come to the Centre for Human Rights in Geneva for consulta-
tions (doc. No. 24).
12. In an undated letter addressed to the Under-Secretary-General for
Human Rights, and transmitted through the Acting Director of UNlC
Bucharest (his letter of 20 Januarv 1988).Mr. Mazilu indicated that despite his
willingness'to come to Geneva for consultations, the Romanian authorities
refused him a travel permit (doc. No. 25). He likewiseconfirmed that he had
heen twicehosoitalized and that he Itad been forced to retire. as of I December
1987,from his various governmental posts. In a series of letters dated 5 April,
19Avril. 8Mayand 17May 1988(docs. Nos. 31, 33. 34, 37,38. 39). Mr. Mazilu
further described his erso o sntualon and the various pressures exerted upon
him following his refusal to comply with a request addressed to him on
22 February 1988 hy a special commission from the Foreign Office Io volun-
tarily decline to submit his report Io the Sub-Commission (doc. No. 31).
D. Expiration of Mr. Mazilu's Term as a Member of the Sub-Commission
13. On 31December 1987the terins of al1members of the Sub-Commission,
including Mr. Mazilu, expired (see para. 8 above). On 29 February 1988the
Commission, upon nomination of their respective Governments, elected new
members of the Sub-Commission,among whom wasMr. Ion Diaconu, a Roma-
nian citizen (doc. No. 29). In a letter dated 29 March 1988 and transmitted
under cover of a Note ~eibale dated 8 April 1988from the Permanent Mission
of Romania in Geneva' to the Chairman of the Sub-Commission (doc. No. 32),
' Unlessotherwiseindicafed,alreferenceIothePermanentRepresentafiv or Mission
of Romaniaare tothase inGeneva.176 PRNILECES AND IMMUNiTIES OF THE UNITED NATIONS
%Ir.Diaconu offered to prepare a report on human righir and youth; ihis offer
was repeared in a letter daied 27 June 1988 [rom the Permanent hlission 01'
Romania io the Under-Sccretars-Cienera or Human Rights (doc. No. 12).
14. On I .luly 19R8the Under-Seiretary-General for Human Rights informed
the Permanent Representarivcof Romania thai iincr hlr. hlaiilu had breii man-
dated bv Sub-Commi\sion drcision 1985,12 to DreDarethe human riehts and
youth ripori, only the Sub-Commission or a higher policy.making Gidy wa\
compeicnt ro change thar de\ignation, failing whiih the Secretary-Geiieral was
bound by the said resolution "to provide al1necessaryassistance to MI. Dumitru
Mazilu for the completion of this task" (doc. No. 44).
15. Nonetheless, in a telex received on 24 July 1988 (doc. No. 43),
MI. Diaconu notified the Sub-Commission that he was willing to prepare a
reoort on human nehts and vouth and that he could send immediatelv a na.er ..
seiting out the resuis of his iesearch on this subject which he had already sent
throuah the Permanent Mission of Romania for circulation to the members of
the ~;b-commission.
E. Requests Addressed to the Romanian Government to Enable the
Completion of the Human Righls and Youth Report by Mr. Mazilu
16. Bvletter dated 6Mav 1988(doc. No. 35) the Under-Secretarv-General for
Human ~ighis requested rhe as,irtance of the IJernianeni Xlirsio" of Roniania
in trdnsmiiting ro Mr. hlailu al1relevani information prcvii)u\ly \uhmirted hv
Governments, soecialized aaencies and non-aovernmental oreanizations. and
which masneces!ary for ihc~omplction uf hi>;epuri. Hya lr.irc;uf 15June 1988
(doc. No. 41). the Under-Secrerary-Grneral informcd the I'ermanrnt Kepre\en-
tative of Romania that as an exceptional measure, a staff member of the Centre
for Human Rights was authorized to travel to Bucharest for the purpose of
working with MI. Mazilu on his report - on the understanding that MI. Mazilu
would be enabled to present his report to the Sub-Commission in Geneva and
to participate in the ensuing debate.
F. The Forfiefh Session of the Sub-Commission
17. Even though al1 the rapporteurs and special rapporteurs of the Sub-
Commission were invited to attend its fortieth session (8Auaust to 2 Se~tember
1988)and the sessions of 11suorktng groups. Ur. hlazilu a&in did no[-appear.
During ihc debate on the organi~ation oi uork of the sesiion. i'ariour mcmbcrr
ex~ressed their views as to the situation of MI. Mazilu. At the 9th meeting,
heid on 9 August 1988, the Chairman stressed the two-fold aim of the ~ub-
Commission, namely; the satisfactory completion of the human rights and
vouth reuort bv Mr. Mazilu. and the oresentation of the said renort bv the lat-
;er. in pèrson.ilr. Diaconu argucd that the Sub-Cornmirsion o&ht to be son-
cerned uith the report it,elf rarher than with hlr. Marilu, whox iiiedical file-
\Ir. Diaconu a\\erterl - had becn ~<immunicaterl 10 ihe Suh-Commisiion in
1987 ;theariitudeoirhe Sub-Cominis\ion amouiiteil. in hi, vicw,ioquc\tioniiig
the mr.di~31opinion upon \\,hich the Romanian Goiernmcnr rr.1ir.d:he argucd
that Mr. Mazilu was unable to comulete his reDort for health reasons. and no
other e\pert should be sent to ~ii:h;rest io ;otiplete the nori. ior him. Other
membcrr of the Sub-Commi,sion rxprc~rrd iheir opinion, ihat at i\ruc ws, ni>(
ihe competence of the Romanian doctors, but rathcr the de~isionoi Xlr. Xlaz~lu
himiclf as to his ability oririlIO complete the report. To 3110%~ \lr hla7ilu IO
exprc,r hi, de;i\ion freely itiras nc;e\\ary for him 10 iravel io <;r.ncva.Failing WRITTEN STATEMENT OF THE SECRETARY-GENERAL 177
which a member of the Secretariat should be allowed to meet with him in
Bucharest and learn from him directly of his decision (doc. No. 61, paras. 31-
36). The observer for Romania al the meeting of the Sub-Commission, when
invited to comment on what had heen said, briefly stated that in his Govern-
ment's view "anv measure that mieht be reearded as a form of insoection or
control would not be acceptable" iibid., 53). As a consequence of this
discussion a s~ecialinvitation was cabled to MI. Mazilu on the same day (doc.
No. 45).
18. At ils 10th meeting, held on 15 August 1988, the Suh-Commission
adopted decision 1988/102, whereby it requested the Secretary-General
"to establish contact with the Government of Romania and to bring to the
Government's attention the Sub-Commission's urgent need to establish
persona1 contact with its Special Rapporteur MI. Dumitru Mazilu and to
convev the reouest that the Government assist in locating MI. Mazilu and
facilitate a viiit to him by a memher of the ~uh-commission and the
Secretariat to help him inthe completion of his study on human rights and
youth if he so wished" (doc. No. 54),
19. At the 14th meeting, held on 17 August 1988, the Under-Secretary-
General ~~-~H-~~n Riehts informed the S~ ~ ~m~is~ion that in contacts held
between the ~ecretary-&enera19soffice and the chargd'affaires of the~oma-
nian Permanent Mission inNew York. the ~ossihiiityof estahlisbing direct con-
tact with hlr. hlazilu hüd hecn raisrd. ~he ~omanian attitude icas thai any
iiitcr\eiition of ihc Unircd Nations Secretariat and ans forni oi ini,c$tigation in
Bucharesr uould he sonsidered inrer\cnrii~nin Konian~a'sinicrnal affairs. I'he
case of MI. Maùlu was an interna1 matter hetween a citizen and his own
Government and for that reason no visits would be allowed to Mr. Mazilu (doc.
No. 64).
C. The Legal Opiniono sf the Offie of Legal Affuirs
20. At the request of the Under-Secretary-General for Human Rights, the
Office of Legal Affairs on 23 August 1988 gave a legal opinion on the
a~o1icabilitvof the General Convention to the situation of Mr. Dumitru Manlu
OC N O.7.1).In 'ummary, the legalopinion consluded ihai hlr. Slarilu. albeit
an ex-mrmbcr oi ihc Suh-Commi~~i~n,siill had a ialid a\,ignmcni and shi~uld
therefore be considered an "exoert on mission" within the meaninr of Article
VI of the GeneralConvention. ~herefore, in the performance of hisassignment,
MI. Mazilu was entitled hy virtue of Section 22 of the Convention to those
privilegesand immunities necessary forthe independent exerciseof his functions
(doc. No. 65).
21. At its 32nd meeting, on 30August 1988,the Suh-Commission considered
draft resolution E/CN.4/Suh.2/1988/L.25, whereby it was foreseen that an
advisory opinion on the applicahility of the General Convention to the Mazilu
case might he sought from the International Court of Justice. Being aware,
however. of a Romanian reservation to Section 30 of the GeneraI Convention.
the Under-Secrctary-(;encra1 for Hunian Righr, rcqursred a second Ikgalopin-
ion from the Ofiice oi Iegal Affairs on the quesrion of tvhcihcr rhr Komanian
reservation could prevent a recourse 10the Court for an advisory opinion and,
in case of a negative answer, what would then be the legal implication of the
reservation made by Romania (doc. No. 68, para. 46).
22. In his memorandumentitled: "Request for a legal opinion on the reserva-
tion made by Romania with respect to Section 30 of the Convention on the PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS
178
Privileges and lmmunities of the United Nations of 13 ~ebruary 1946". the ,
Legal Counsel of the United Nations answered that (ai the Romanian reserva-
tion to Section 30 of the General Convention did not prevent a competent
United Nations organ from requesting an advisory opinion, under ~rticle 96 of
the Charter, concerning the applicability of Article VI, Section 22, of the
GeneralConvention on the situation of Mr. Mazilubut that Ibi such an advisorv
opinion would not be binding upon the parties (doc. No. 72).
H. Sub-Commission Kesolurion 1988/37on rhe Prevention of
Discrimination and Prorection of Children: Human Righls and Youth
23. The Sub.Commission on I Septimber 1988adopted by a roll-cal1vote of
16to 4. with 3absientions resolution 1988/37 (doc. No. 55),containing a three-
fold request :
(a) It requested the Secretary-General Io approach once again the Romanian
Government and invoke the applicability of the General Convention in the
case of Mr. Mazilu.
(bj Should Romania refuse to apply to Mr. Mazilu the relevant provisions of
the General Convention, the Secretary-General was requested
"Io bring the difference betrien the United Nations and Romania
immediately to the attention of the Commission on Human Rights at
ils forthcoming forty-iifth session in 1989".
(ci If no acceptable solution was round, the Commission would then be
requested
"Io urge the Economic and Social Council to request ... from the
International Court of Justice an advisoryopinion on the applicability
of the relevant provisions of the Convention on the ~rivileees and -
lmmunities of the United Nations to the present case .. .".
1. Exchange of Correspondence belween the Secretary-General and the
Permanent Represenlative of Romania
24. Pursuant Iothe foregoing resolution the Secretary-Generalon 26October
1988addressed a Note Verbale to the P~r~ ~ ~ ~Reoresentative of Romania to ~ ~ ~ ~~-
the United Nations in New York. in which he in&!&d the ~keral Convention
in respect of Mr. Mazilu and reauested the Romanian Governrnent to accord
MI. ~azilu the necessary facilifies, including travel Io Geneva, in order to
enable him to complete his assigned task (doc. No. 73). As no reply had been
received to that Note Verbale. the Under-Secretary-General for Human Rights
on 19December wrote a letter of reminder to the Permanent ~epresentative of
Romania in Geneva (doc. No. 74). Furthermore, during aU this period, the
Secretary-General had several conversations with the Permanent Re~resentative
of ~omania in New York. in which heemnh~siz~d tha. Mr. ~azifu was to he ~ ~ ~ ~
conridered as an expert on mission for the Organization, and requested the co-
oueraiion of the Romanian Government in facilitatina the ~rcu-ration. . this
report. including any necessary travelto Geneva.
25. On 6 January 1989the Permanent Representative of Romania handed to
the Legal Counsel of the United Nations an Aide-Memoire (doc. No. 78) in
which the Government's position concerning Mr. Mazilu was set forth as
follows : MI. Mazilu, being seriously il], had retired from al1his professional
activities. The Romanian Government consequently presented the candidacy of WRITTEN STATEMENT OF THE SECRETARY-GENERAL 179
another expert to replace the ailing member, whose term of office had in any
case expired on 31 December 1987.From then on al1requests made, on behalf
of the Sub-Commission, bythe Under-Secretary-General for Human Rights and
the Secretary-General, for the Government to enable Mr. Mazilu to complete
his assiened task. were ~oliticallv motivated and had nothine to do with the
compleGon of the reporion hum& rights and youth. This wai al1the more so
in view of therefusal of the Sub-Commission to accept the draft reDort on that
subiect submitted to it bv theewlvîlected ~omaniai member. fordistribution
as a document of the ~ub-~ommission. As to the General convention, the
Government rejected its applicahility to MI. Mazilu, whose mission was occa-
sional. whose mandate hadlone h-fore exnired and who in anv case would not
have been entitled to any privileges and immunities while in his own country.
In conclusion. theRomanian Government recalled that in viewof its reservation
to Seciion 30 of the General Convention regarding sriikment of dispute\, no
recourse could be had io rhe International Couri oi Jusri;c uiilioui the cxpre5s
consent of both parties.
J. The Secretary-General's Reporl 10the Fiflh Commitlee of the
General Assembly at Its Forly-fhird Session
26. In his report to the Fifth (Administrative and Budgetary) Committee
of the General Assembly, entitled : "Personal Questions : Respect for the Privi-
leees and lmmunities of Offici~is~ ~ the ~nited Nations and the Snecialized
~iencies and ~elated Organizations", the Gcretary-General also refGred to the
Mazilu case. althouah Mr. Mazilu wasnot an official of the Ornanization, and
indicated that he -
"was noi permiited bythe Komanian auihoritiestotra\cl ioGencva inordrr
io presenr hi, report al the rccettt fortieth session of the Sub-Commission.
~lthoueh no longer a member of the Sub-Commission. Mr. Mazilu had a
valid aGignmenÏfrom ihe Sub-Commission and is, ihercfore. io he -on-
sidercd a having in thai capacity the status of an expert on mission for the
United Nations irithin ihc meanine of Arti~deVI of rhe Convention on the
Privileges and Immunities of the Ünited Nations" (doc. No. 79).
27. At iis 35thmreiing on 18Novcmber 1988,the tiith Commttteedts~u~sed
rhe Mazilu case under agenda item 121 (r,. eniitled : "Oiher Perbonal Qurr-
lions". The renresenrarive of Denmark. s~eakina on behalfof the Nordis coun-
tries, expressed their concern as to thefate of ~r. Mazilu and appealed to the
Romanian authorities to allow Mr. Mazilu to come to Geneva and complete
his task. Mr. Mazilu's detention. it was arnued. constituted a violation of
applicable immuniiies and a hindiancc tothe6rga"ization', work in the pri>mo-
tion of human righri. The Romanian representaiive at this meeting rejected nny
reference to Romanian nationals in the context of agenda item 121 (c). He
reminded the Committee that his Government's position with respect to that
former member of the Sub-Commission had already been communicated to
United Nations officials. and it had been demonstrated that the Convention on
Privileges and lmmunities was not applicable to the said former member (doc.
No. 79.4, paras. 45 and 62).
K. The Request for an Advisory Opinion
28. At the forty-fifth session of the Commission in 1989, the Secretary-
Generalpresented a Note "pursuant to paragraph 2 of resolution 1988/37of theSub-Commission on Prevention of Discrimination and Protection of
Minorities" (see para. 23(b)above), to which were attached bis Note Verbale
to the Romanian Government of 26 October 1988, and the Romanian Aide-
Mémoireof 6 January 1989(doc. No. 81). The Commission, concluding that
a difference has arisen between the United Nations and Romania as Cothe
applicability of the General Convention, adopted by a roll-cal1vote of 26 Io 5,
with 12abstentions ils resolution 1989/37 (doc. No. 88)recommending that the
Council request an advisory opinion from the International Court of Justice as
to the applicability of the Convention to the Mazilu case.
29. As recommended in Commission resolution l989/37, the Economic and
Social Council on 24 May 1989adopted by a recorded vote of 24 to 8, with 19
abstentions its resolution l989/75 requesting an advisory opinion of the Court
on the question of the applicability of Article VI, Section 22, of the General
Convention in respect of Mr. Mazilu as Special Rapporteur of the Sub-
Commission (see para. 1 above).
L. Furrher Communications from Mr. Mazilti
30. Durina the month of May 1989.Mr. Mazilu addressed to the Secretary-
Grnrrsl. tu ;hc President of ihc Cicnc.rltlAsicnibly, io the Chairrncn of thr
Coninii\\ion and of the Sub-Conimis,ion, and io the Under-Sccreiary-Getieral
t'orHuinaii Rights. a seriesof letter.ihich hc cvpressed Iiiscoiitinuing fears
for hi, physical \afciy and the saiciy oi hir faiiiily. 2nd urged the publication
of Iiir drafi repuri on hunien right\ and )uuih. iihizh lieiiith? mrsntimc
submitted to the Centre in several instalments through various channels (docs.
Nos. 93-96). The report is Io be published in preliminary form as a document
for the forty-first session of the Sub-Commission.
II. THE PROPRIETY OF THE ECONOMI CND SOCIAL COUNCIL AODRESSINIO TS
QUESTION 10 THE ~NTERNATIONAL COURT OF JUSTICE AND OF THE COURT
RESPONDINC THERETO
31. Before entering on the substantive issuesraised hy the question addressed
by the Economic and Social Council to the Court, it may be nseful to consider
first whether the Council was under the circumstances actually authorized todo
so and. if so. whether the Court should exercise its discretion tond to the
question.These questions are adverted to since the Romanian Government has
indicated. in its Aide-Mémoiretransmitted Io the United Nations Legal Coun-
sel on 6 January 1989 (doc. No. 78), as well as in its statementi the Sub-
Commission (docs. Nos. 68, para. 49, and 69, paras. 21-22)to the Commission
(doc. No. 87, paras. 149-150)and to ECOSOC (docs. Nos. 89, para. 525, and
98). that it considered that because of the reservation it had entered Io Section
30'of the General Convention "no advisory opinion can be requested on this
case, orconsequently, on the interoretation and application of the Convention
on any other 5ounds".
A. The Authorify of the Economic and Social Council
32. In the resolution by which the Council addressed its question to the Court
it referred solely Io Iwo legal provisions as the bases for making its req:est
Article 96, paragraph 2, of the Charter of the United Nations and General
Assembly resolution 89 (1) of II December 1946 (doc. No. 158). WRlTTEN STATEMENT OF THE SECRETARY-GENERAL 181
33. The Charter provision empowers the General Assemhlv to authorize,
inrrrolro, .'[olther o;gans of the unitcd Nations" 10 '.rcquert ad;isory opinions
of th? Court on Icgal querrions îrising within the scopc of their actir'itics". By
means of the cited resolution the ~ssemblv exercisedthis nower in respect of the
Economic and Social Council, authorizing if to "request advisory opinions .. .
on legal questions arising within the scope of the activities of the Council"
(doc. No. 158).
34. Thc quc,tion that the Economic and Social Council askcd in the instant
case iscvidcntly a legal one. a\ilconcerns "the itpplicability" of a specified sec-
tion of the Convention on the Privileees and lmmunities of the United Nations
of 13 February 1946, which is a treGy in force, in respect of a Special Rap-
porteur of the Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities of the Commission on Human Rights.Whether it is necessary
in responding to the Council's question to interpret the treaty or merely Io
decide as to its applicability under the indicated circumstances, it is clear that
the question is entirely and solely a "legal" one within the meaning of the
Charter and of the General Assembly's resolution. It should be noted that the
Council itself specifically characterized ils question as a "legal" one, and
althoueh that characterization is cvidentlv neither bindine on the Court nor
capable of altcriiig the essential nature of'the question. itYndiratcs the nature
ot thc Council's intercst in addressing if\ rcquest IOthc Court.
35 Thc que\tion by the E;onorni< and Social Council ir dit> une that arme
within thc scope of 11,a~.ti\.ities.This issu hc~ause,as appears irom the factual
backgruund \~mniïrii.ed ahoie. thc appli;itbility or not of Section 22 of the
GeneÏal Convention may determine whéthera Government party to the Con-
vention may interfere with a task assigned hy the Sub-Commission to one of its
special rapporteurs, i.e., the preparation of a report that the Sub-Commission
had commissioned in response to an earlier resolution of the Commission on
Human Rights (resolution 1985/13 of II March 1985(doc. No. 3)). The Sub-
Commission is a subsidiary organ of the Commission on Human Rights, estab-
lished hv the latter's resolution ado~ted in its first session heldfrom 27 Januarv
IO IO~éhruary 1947pursuant to chuncil rcsoiution~9II of 21 June 1946(doe..
No. 146); the Commi*\ion in turn ir a subsidiary organ of the Couiicil. estab-
li\hcd bv the Iîtter's resolution 5 1of 16Februûrv 1946tdoc. No 1451.nursuant
to ~rtide 68 of the ~nited Nations charter. kat GGcle emphasiiis'that the
commissions that the Council is to set up under that authority are such as may
be required for the performance of ifs (i.e.. the Council's) functions.
36. The question formulated hy the Economic and Social Council in its
resolution 1989/75 is therefore a legal one that arose within the scope of the
Counçil's activities, as required by paragraph 2 of Article 96of the Charter and
by General Assemhly resolution 89 (1).
B. The Effect of the Romonion Reservation to rhe Generol Convenrion
37. The Romanian Government has. nevertheless. asserted that the reserva-
lion ilrntcred Io Section 30of the ~enîral ~onventi'onprevcnts the rcquc\t of
an advi,or) opinion "on [hi case" and. e\,enmore generally. "on the intcrprçta-
tion and abplication of the Convention on any other grohds",
38. The two relevant texts read as follows:
(a) Section 30 of the Generol Convenlion:
"All differences arising out of the interpretation or application of the
present convention shall be referred to the International Court of Justice,182 PRMLEOES AND IMMUNITIES OF THE UNITED NATIONS
unless in any case it is agreed by the parties to have recourse to another
mode of settlement. If a difference arises between the United Nations on
the one hand and a Member on the other hand, a request shall be made
for an advisory opinion on any legal question involved in accordance with
Article 96 of the Charter and Article 65 of the Statute of the Court. The
opinion given by the Court shall be accepted as decisive by the parties."
(b) Romanian reservorion in respecr of rhe General Convenrion:
"The Romanian People's Republic does not consider itself bound by the
terms of Section 30 of the Convention which provide for the compulsory
iurisdiction of the International Court in differences arisinn out of the
interpreration or application of the Convention; wiih respec;to the com-
pctence of thc International Court in such differenccr. the Romanian
People', Republic take5 the view that. for the purpose of the submission
of any dispute whatsoever io thc Couri for a ruling, the consent of al1the
parties to the disputeis required in every individual case. This reservaiion
is equally applicable to the provisions contained in thesaid section which
stipulate that the advisory opinion of the International Court is to be
accepted as decisive." [Original French.]
39. First of al1it should be noted that the only part of the reservation that
relates to advisorv o~inions of the Court merelv refers to the last sentence of
Section 30 of thL~onvention, which provides chat an advisory opinion given
under the circumstances specified in the previous sentence is to be accepted as
decisive by the parties.~hus, even the very terms of the reservation would not
prevent a request for an advisory opinion or a reply to such a request, but
merely may affect its decisive character.
40. In any event, the Economic and Social Council did no1 make ils request
pursuant to or in accordance with Section 30 of the General Convention. to
which it nowhere refers in its resolution 1989/75, which otherwise specifically
cites every text that the Council considered relevant to its request. The mere fact
that the Council concluded that a difference had arisen between the United
Nations and the Government of Romania in respect of the applicability of the
General Convention does not mean that it intended to have that difference
resolved in accordance with Section 30.
41. That the Economic and Social Council did not intend to have the dif-
ference that it perceived settled pursuant to Section 30 of the General Conven-
tion is not surprising,since it acted on a draft text presented to it by the Com-
mission on Human Rights (see doc. No. 97). The latter was aware of the
Romanian reservation to the Convention, since the text of the Romanian Aide-
Memoire of 6 January 1989had been submitted to the Commission (doc. No.
81, Ann. II). Fwthermore, the effect of the Romanian reservation on the
rowers of the Council to reauest an advisorv ooin,on.had been exolicitlv
explored in the Sub-Commission, which ieceived a legal opinion (see para. 22
above) explainina that in linht of the Romanian reservation no advisory opinion
to which a decisiie effect &id be attributed. could be reauested under Section
30 of the General Convention, but that a request could aiways be made under
the general powen of the Council under Article 96 of the Charterand the conse-
quent Gen&al Assemblyresolution (seedoc. No. 72). The Council's subsequent
action evidently followed that adnce.
42. As the Council did not attempt to request an advisory opinion within the
framework of Section 30 of the General Convention, but rather specifically
relied solely on ifs authorization by the General Assembly in accordance with WRITTEN STATEMENT OF THE SECRETARY-GENERAI 183
the Charter, the Romanian reservation to that Section could not restrict that
general authorization. Thus this situation differs clearly from that which moti-
vated the Court to decline to res~ond to Question II of the Executive Board of
the Unitcd Nations ducati ion ~cientific and Cultural Organization. in
Judgmenrs of rhe Adminisrrarive Tribunal of the IL0 upon Complaints Mude
unurnsr Unesco. Advisory Opinion of 23 Orrober 1956. I.C.J. Reporrs 1956.
r~ r~ ~-~
43.' Ïideed to suggest, as does the Romanian Aide-Mémoire,that the Govern-
ment's reservation to Section 30 of the Geueral Convention can Drevent the
request for any advi5ory opinion relating toa position taken by the ~overnment
in respect io ihe Convention, would raisc serious questions undcr Article 103of
the United Nations Charter, which assures the primacy of ihat instrument over
al1other international agreements. And if even the General Convention. which
issuch an agreement. could noi itsrlf limit the Charter-derived power of certain
United Nations organs to request advisory opinions on legal questions, then a
single Governmeut's reservation to that Convention could certainly not have
such an effect.
44. Finallv. the Court mav recall that in its advisorv ooinion of 28 Mav 1951
in respect of~eservations ti the Genocide ~onventi0.n iiiheld that the ~ourt's
advisory jurisdiction cannot be excluded by the mere existenceof a procedure
for the settlement of disputes in an instrument in respect of which an advisory
opinion has been requested, because the right to request advisory opinions
derives directly from Article 96 of the Chatter (I.C.J. Reports 1951, p. 15, at
p. 20). This consideration must apply a fortiori in respect of an instrument
whose disputes settlement procedure had been rendered ineffective in respect of
a particular situation by a reservation.
C. The Discretion of the Court to Give an Advisory Opinion
45. This Court has repeatedly held that although its power to give advisory
opinions is a discretionary one, its reply to a request for such an opinion from
an authorized United Nations organ represents the Court's participation in the
activitie~ ~f ~ ~ ~-~anization and. in nrinciole. should not be refused: indeed.
. ~ = ~ .
the Court has held that only compelling reasons would justify such a refusal.
(Interpretation ofPeace Treaties,Advisorv Opinion, I.C.J. Reports 1950. D.65,
at p.'71; Reserklions to the convention on Genocide, ~dvisory inio ion,
I.C.J. Reports 1951,p. 15,at p. 19; Judgments of theAdministrative Tribunal
of the IL0 unon Comulaints Made azainst Unesco, Advisorv O~inion of
y3 Ocrober 1956, I.C.J. Heporrr 1956,p177, 31 p. 86; Certarn t'iperkes of the
Unircd Nairons /ArtIrle 17,paragraph 2. of the Chorrer), Advrvory op in rot^of
20 July 1962. 1.C.J. Reports 1962. p. I51, a1 p. 155 ;Lexol Conceqztencesfor
Stores of rhc Conrrnued Presenrr of Sorirh Africu rn Navrrhrii (South H'rsr
A/rica) norh~irhstatrding Security Counol Kesolritio~~ 276 (1970). Advisory
Opinion, I.C.J. Reports 1971, p. 16, at p. 41.)
46. Suffice it to say, this Court has never found, in considering any request
for an advisory opinion, reasons sufficiently compelling to cause it to refuse to
respond. With reference to the present request, there would appear to be no
reasons. and certainlv no comoelline ones. for the Court to decline to olav the
a
role foreseen for it in the ~n;ted Nation; Charter and its own statut;.
47. The issue in respect to which the Economic and Social Council posed its
auestion is a serious one.with far-reachine conseauences. Althoueh that aues-
tion arose within the context of restriction;apparently imposed on-the acticities
of a particular special rapporteur of a particular subsidiary organ, the Council PRMLEGES AND BIMUNITLES OF THE UNITED NATIONS
184
did not request the Court to address specifically these restrictions, but merely
to determine whether a specified provision of the General Convention, a treaty
of great importance IO the United Nations and directly derived fromtheCharter
(Art. 105, para. 3). is applicable to that special rapporteu- and thus by im-
plication to other similarofficials charged with carrying out tasks assigned to
them by organs of the United Nations.
111. THE CONVENTIO ONN THE PRNUEOES AND IMMUNITIE SF THE UNITED
NATIONS (THE "GENERAL CONVENTION")
A. History of and Participation in the Convention
48. Paragraph 3of Article 105of the Charter of the United Nations provides
that the General Assembly may propose conventions to the Members of the
United Nations for the purpose of deiermining the details of the application of
paragraphs I and 2 of that Article, relating to the privileges and immunities
necessary to the Organization, as well as Io representatives of ifs Members and
to its officials. The Preparatory Commission of the United Nations conse-
quently recommended that the General Assembly should al ils first session pro-
pose such a convention, and the Commission included the draft of such an
instrument in its Renort to the Assembl. .doc. No. 100).This draft was ~e~erred
io the Sihih (Legal) Comniiiiee oi the Assernbly. which in turn refcrrcd iiIO a
Sub-Commiiicc on Pri\ilepes and Immuniiicc. On ihc bacis of ihc rcporr of rhe
Sub-Committee (doc. NO: 101) and the consequent recommendation of the
Sixth Committee (doc. No. 105).the Assembly on 13February 1946adopted its
resolution 22 (1) by which it approved the text of the Convention on the
Privileges and lmmunities of the United Nations and proposed it for accession
to each Member of the Organization (doc. No. 106).
49. Pursuant to Section 32 of the Convention. Member States of the United
Nations mav become narties to it bv deoositina an instrument of accession with
the ~ecretari-Generai. Up Io now,-12i~tate;have done so (doc. No. 107). In
addition,the Convention is routinely incoroorated by reference into manv tyoes
of aereements concluded between the ~reanization-and States. includin-E~~ ~ ~
- - ~ ~
as have not become parties to it, and thus even States that have not acceded to
il may be bound for certain purposes by its provisions. The Convention has thus
become the orincioal instrument throueh which the orivileees and immunities of
the ~r~anization; and of persons associated with il, aredefined and assured.
50. Although the General Convention contains no provision regarding the
making of reservations, 22of the States parties to it have acceded subject to one
or more reservations (doc. No. 107). Even though some of these reservations
were objected Io by other parties to the Convention, the reserving States have
always been considered as parties to the Convention. However, from cime to
lime some draft reservations have been submitted for comment to the Secretary-
General or to the Office of Leaal Affairs. on which the advice has heen that
these would be incompatible wGhthe Convention or even the Charter, or that
they were on other grounds undesirable (docs. Nos. 110, II 1).
B. The Legal Srarusof the Convention vis-à-visthe Organization
51. In ifs report recommending the adoption of the General Convention,the
Sub-Committee on Privilegesand Immunities of the Sixth Committee (seepara.
48 above) stated (doc. No. 101,para. 5): WRlTTEN STATEMENT OF THE SECRETARY-GENERAL 185
"5. The General Convention on immunities and privileges of the United
Nations is, in a sense, a Convention between the United Nations as an
Organization, on the onepart, and eacb of its Members individually on the
other part. The adoption of a Convention by the General Assembly would
therefore at one and the same time fix the text of the Convention and also
imply the acceptance of that text by the United Nations as a body."
This conclusion isreflected in Section 35 of the Convention, which specifiestbat
the "Convention shall continue in force as between the United Nations and
every Member which has deposited an instrument of accession", thereby imply-
ing that the Organization itself is a Party.
52. It was lare-~,..thouah not entirelv. on the basis of the latter consideration
that the Legal Counsel if the ~nited ~ations concluded, in an opinion he
delivered to the Sixth Committee on 6 December 1967,that although the Con-
vention isasui generisinstrument. it was clear that the Oraan-zation was a oart. .
to it (doc. No."112).
53. Nevertheless, even if the Organization should not be considered as a
"oartv" strictu sensu to the General Convention. it is clearlv a "third ornaniza-
tion"'ihai can dçrive obligations and right, un& thai in\&utiient purs;ant to
the principlc$ rodified in Articles 35 and 36of ihc 1986Vienna Coniention on
the ~aw of Treaties ~ ~~~en States and International Oreanizations or between
International Organizations. The acceptance or assent of the Organization to
such obligations and rights is evidently that given by the General Assembly in
adopting the Convention and proposing it to Member States, an action taken
pursuant to the explicit authorization of paragraph 3 of Article 105 of the
Charter.
C. Inferpref~~tionof the Convention
54. As a treatv. the inter~retation of the Ge-e~ ~ ~ ~~~~~ion is subiect to the
,, ~ ~ ~ ~
rules codified in Section 3 of Part III of both the 1969Vienna convention on
the Law of Treaties and of the 1986Convention cited in the paragra~h above.
In oarticular. ,n i~ ~ ~r~ ~ ~ -he General Conven~ ~ ~ accou.t is-to-be taken.
in addition to its context, of inter alia "any suhsequent practice in the applica-
tion of the treatv which establishes the agreement of the parties regardina its
interpretation" (i969 and 1986Vienna conventions, corresponding ~rticles31,
paragraph 3 (6)). To the extent that the ordinary meaning of any terms of the
Convention, as well as anv indications derived from subsequent ~ractice. still
leave the meaning of the Generai Convention obscure, recoke may be had to
ifs preparatory work and to the circumstances of its conclusion (ibid., corre-
sponding Articles 32)
IV. THECONCEPT OF "EXPERTS ON MISSIONS "NDER THE GENERAC LONVENTION
A. The Text and the Formulation of the Convention
55. The title of Article VI of the General Convention reads: "Experts on Mis-
sions for the United Nations." Section 22 in that Article refers 10: "Experts
(other than officials coming withiii the scooe of Article V) ~erforming missions
for the United Nations." Fina~~y,section23 in the saméArticle reférsmerely
to "experts". It should also be noted that Section 26 in Article VI1 refers Io
"experts and other persons .. . travelling on the business of the United
Nations". None of these provisions give any further indication of the scope of186 PRIVUEGE SND IMMUNITIES OF THE UNITED NATIONS
the terms "expert" or "mission", except that it is clear from Section 22 that
officials of the United Nations (even if they are "experts") are not meant to be
included in the former term.
56. In viewof the consequent potential uncertainty about the meaning of the
phrase "expert on mission", it may be instructive to look to the negotiating
historv to see if this mieht helo orovide claritv. Unfortunatelv. this is not so.
The d;aft of the Cieneraï~onviniion submittedby the ~reparaiory Commission
to the General Assembly. whilecontainina articles relatina to the re~resentatives
of Member States and to officials of the ~r~anization (thëtwo categories of per-
sons explicitly mentioned in paragraph 2 of Article 105 of the Charter), had
none corresoondina to the oresent Article VI: the onlv reference to "exoerts"
was in paragraph f of ~rtkle 7 of the draft,which became Section 26 of the
Convention (relating to the issue of travel certificates). ThefiialRecords of
the General Assembly.onlv.show that the text of oresent Article VI was added
by the Sub-Committee on Privileges and lmmuniiies, in its report to the Sixth
Committee, and that that report contains no explanation of the addition. Nor
was anv reference to the new text made durine the debates in the Sixth Commit-
tee, or in its report to thc Plenary. or in ihe laGer'sconsideraiion of ihe Conven-
tion beforc the adoption of General Asscmbly resolution 22 (1) (docs. Nos.
101-105).
57. In a study by Martin Hill. a former high official of the League of Nations
and subsequenily of the United Nations. the manuscript of which was made
a\,ailable to members of the Commiiieeof theSan Francisco Conferencedealing
with legal problems. the fact that the League Covenant had only refcrred to
"representatives of Mcmbcrs of the I.eagueWand to "Official of the League"
had raised oroblems in reg.rd to "other versons workina -or the Leaeu- not as
govrrnmcnt rcpreseniaiives": these problems concerned "members of ihe greai
majority of permanent and iemporary commissions and committces and olher
agencies set up by the League", which were "composed of persons whose func-
lions Varywidely as to their nature, the places where they are performed, and
their duration; above all, it is a group very difficult to delimit". One can only
speculate that Article VI was added to fiIl this gap (doc. No. 113).
58. It might also be noted that the Convention on the Privileges and
lmmunities of the Specialized Agencies, which the General Assembly adopted
a vear later bv resolution 179111)of 21 November 1947.and whose orovisions
are largely baied on those of the ~eneral Convention, does not contain a provi-
sion corresponding Io Article VI of that instrument (doc. No. 108).However,
in the ~nnexes to the SoecializedAeencies Convention that each of these aeen-
cies adopted in order to adapt the gineral provisions of that treaty to their par-
ticular needs (see Sec. 33 of the Specialized Aaencies Convention) (doc. No.
LOS),9 of the; included provisions relating to~"experts on mission;" largely
corresponding to those of Sections 22 and 23 of the General Convention. This
suggests that even in those early days these agencies considered that they too
would need to emolov such exoerts to carrv out their technical task- and thus
that the phrase in'quéstionwis meant to cover al1kinds of ancillary personnel,
political as well as technical, performing functions for these organizations
rather than for their Governments
B. Relevant Praclice under the Convention
59. The consistent practice of the Organization from the lime immediately
following the adoption and entry into force of the General Convention has,
indeed, been to classify and consider as "experts on missions" within the mean- WXITTEN STATEMENT OF THE SECRETARY-GENERAL 187
ing of Article VI of the Convention, various types of persons who are charged
with performing a function or a task for the United Nations. as long as these
persons were neither the represeiitatives of a State nor staff members (Le.,
officials) of the Organization. In respect of certain categoriet of persons that
practice was reflected in agreements (e.g., technical assistance or conference
agreements) entered into with Member States ; in respect of other categories,
their status was not specified in any agreements but appears from practice as
evidenced, inter olia,from explanatory correspondence with States, from inter-
na1 leeal oninions and from administrati~e~ ~ ~ ~ces. It should~ ~ ~~ ~ noted ~ ~
that tie prktice of the spécializedagencies, in implementing the provisions of
their respectiveAnnexes to the Convention on Privileaes and Immunities of the
~pecialized Agencies (see para. 58 above) relating to-experts on missions, has
heen similar to that of the United Nations.
60. The above-mentioned practice reflects the need of the United Nations and
its specialized agencies, which in order to carry out their many and varied
activities,ely heavily on the servicesof experts. A large number of experts from
different countries, with various skills and qualifications, are constantly carry-
ing out different missions. The tasks which have been assigned to them include
writing reports, preparing studies, conducting investigations, finding and
establishing facts, participating in peace-keepingforces, monitoring and observ-
ing situations, implementing technical assistance and a multitude of other
activities. Many of these tasks can only be fulfilled hy highly qualified and
specialized experts who cannot always be found among the staffs of these
organizations. In other cases, for administrative. financial and other reasons it
is often desirable or necessary to appoint persons outside the category of United
Nations officials. These include members of permanent or temoorary com-
missions, cornmittees or working groups serving as experts. and government
officials on loan to the United Nations in their personal capacity, as well as
individuals ap~ointed by the Secretary-General as his reoresentatives to ~erform
specific tasks-entmsted io him. ~heUnited Nations andihe other agencks must,
in order to carry out their functioiis, be able to count on respect for at least a
minimum functional status of those oersons to enable them to ~erform their
iarks for the organization<, and thsi if precisely uhar Se~tion22 oi the General
Conveniion (and the corre3ponding provisions of the Annexes to the 1937<:on-
vention - see para. 58 above) is designed to provide.
61. Annex 1 to this Statement sets out examples of categories of persons
considered to be "experts on missions for the United Nations". From these
examples - which necessarily refer for the most part only to categories in
respect of whom a legal question was ever raised - it appears that the phrase
"experts on missions" has from the beginning and in particular over the years
come to embrace a wide cateaory -. oerson. who, whether as individuals or as
members of a particular group (committee, commission, etc.), have been
charged with performing some function or with carrying out some task or
assignment for the Organization. Some of these individuals have been aiven that
statüs bv the ~ecretari-~eneral. while ot~e~~ ~ ~ ~been a~ooin..~ or ë~ ~ ~ ~ ~
other phncipal or suisidiary organs of the Organization. Finally it should bé
noted that while some of these oersons have a contractual relationshio with the
Organization, such as consulta"ts u,ho receive a "~pecial service a&eementV,
oihers. such as mosi elecied members of commitiees or commissions. have no
sucb arrangements. Similarly. some exoerts receivecomoensation in the form of
a t'eeor an-honorarium. while oihers are no1remuneratrd rxcept by reimburse-
meni of expenditures incurred by [hem in performing rheir assignmenis for ihe
Organization (e.g., in travelling).188 PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS
62. It is also important to note that there is no provision under the General
Convention obliging the Organization to communicate the names of experts on
mission ta the Governments of Members - as there is in respect of officials
(Sec. 17 of the General Convention). Indeed, no such notifications have been
made in respect ofexperts - whose functions (and thus their special status) are,
of course, often more ephemeral than those of staff members.
C. TheScope of the Privileges and Immunities Accorded to Experts on Missions
63. The ~rivileaesand immunities accorüed to exoerts on missions bv Section
22 of the ~&eral'Eonvention are, unlike those specified in Section 11in respect
of representatives of Members, strictly functional. This appears first of al1from
the cha~eau of Section 22. which refers to "such orivileee- and immunities as
are necessary for the independent exercise of their functions during the period
of their missions", and to the particular rirhts listed in the six subparagraphs.
Furthermore, the privileges and immunitiei of experts on missions~differ from
those of officials covered by Section 18. Experts on missions enjoy no tax
exemption on their official emoluments, no immunity from national service
oblieations. no immunitv from immiaration restrictions and reeistration
rî~u~rcnieitis, and no righ;., of dut).-freeimpori\.The limired righrsÏhlii ihcy
are granicd are siricily de\igncrlIO prùteii the iniereii- of the Organ17aiion in
the privacy of its papers and communications and in preventing any coercion
or threat thereof in respect of the performance of the experts' missions (doc.
No. 143).
D. The Siarus oJExperts on Missions vis-à-vis Their Own Governmenis or in
Their Own Countries
64. Neither Section 22 of the General Convention, nor any other provision
in Article VI or otherwise in the instrument sugeests that the riahts of exuerts
on missions are any different vis-à-vis their owh~overnments or in their-own
countries than they are vis-à-visany other Government or in any other country.
In this experts are treated like officialsunder Article V of the Convention -
but unlike representatives of Members, who, pursuant to Section 15, enjoy no
rights vis-à-vis the authorities of the State of which they are nationals or of
which they are or were the representatives.
65. In this connection it should be noted that certain States oarties to the
Griicral Con~entiun ha\e made panicular Iimitcdrcscrvatioiis rcst;icting ~criaiii
imniunities in rï\peci 01experts uho are of the iisiionalit) of the,? States or in
resuect of al1 versons (thus oresumablv also includine ex-.rts) ha.ina such
naiionality and residence (doc. No. li0). Other States that have iniuired
whether they could accede to the General Convention subject ta broad reserva-
tions altogether excluding the privileges and immunities of officials and experts
of their nationality, were advised that, depending on their scope, such reserva-
tions would be undesirable, or altogether incompatible with the Convention or
even the Charter of the Oreanization (docs. Nos. 110. 111).Conseauentlv anv
State, such as Romania, p&ty to the convention thathas "01 made-or aitemi-
ted to make any reservation relating ta the nationality or residence of experts
on mission cannot later unilaterally impose any such restrictions.
66. It should also be noted that there exist no legal rules preventing the
appointment or election of an expert to carry out a mission in his own country.
Indeed, frequently special rapporteurs, rapporteurs and other persons assigned
to prepare studies or reports perform part of their work in their own countries WRITTEN STATEMENT OF THE SECRETARY-GENER. 189
(e.g., writing, research, and the analysis of materials, etc.). There are even
instances where missions of an investigative nature were assigned to experts to
be carried out in their own countries.' Though in these cases questions of
orivileres and immunities are rarely raised, al1 these persons fall within the
categoFyof experts on missions who are entitled to the phvi~e~esand immunities
referred to in Section 22 of the General Convention.
67. It also aooears from the foreroina analysis, that the assertion of these
mer~l~,fu~et~ ~ ~ ~ . ~ ~ -s and immuGties & resoect of oersons fwho are
neither national representatives nor organization officiais) charged with carry-
ing out defined tasks for the United Nations, in no way constitutes any type of
intervention hy the Organization within the domestic jurisdiction of any State,
in violation of Article 2, paragraph 7, of the Charter.
V. THESTATUS OF RAPPORTEUR OF THE SUE-COMMISSIO UNDER THE
GENERAL CONVENTION
A. The Status of Mernbers of the Sub-Commission
68. The members of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities, though nominated by Governments, are elected
by the Commission on Human Rights "as experts in their individual capacity".
This is stated exolicitlv in Council resolution 1983/32 of 27 Mav 1983 Idoc.
No. l54), which cas beénreproduced in the Commission documents on the basis
of which it conducts its elections to the Sub-Commission (e.g., doc. No. 1).
69. Even before the adootion of the ahove-cited counefi resolution. the
sialus oi the Sub-Commis,ion menibers na thai indi~ated îboje. Though no1
spcrified in rhc orieinal re$olution e,tahli>hinc the Sub-Commission. rhi, jtatiis
has been recognize-d and reiterated since ear6 days:
(a) During the third, fourth and fifth sessions of the Sub-Commission, objec-
tions were raised to the memhership of one expert for alleged lack of
representativeness. At its fourtli session, the Sub-Commission, by a vote of
9 to 2, decided that it was not competent to discuss "a proposal for the
expulsion" of oneof its members on that ground (doc. No. 148).That deci-
sion was again confirmed at its fifth session (doc. No. 149). The Chairman
of the meeting explained that the Suh-Commissionhad "based its decisions
on the fact that its members were experts, not representatives of govern-
ments" (ibid.).
(b) At its thirtieth session, in 1977,the Sub-Commission adopted a public state-
ment reiterating that the members of the "Sub-Commission are elected in
' Far example,in the practiceof the Sub-Commission,in 1987it requestedthat its
Chairman,in responseto an invitationfromtheTraditionalHopiElders,delegateoneor
moremembersof the Sub-Commission Ioattendand observeUnitedStatesCongressional
hearingsscheduled,both on site andin Washington,D.C., to considerfurfherimplemen-
rationof lawsprovidingfor therelocationof Hopiand Navajofamilies(Sub-Commission
decisian !987/110).In 1988the Sub-Commissiondecidedto invite Ms Erica-IreneDaes
(Greek nationality, member of the Sub-Commission)and Mr. John Carey (USA
nationaiity,alternabememberof theSub-Commission)to preparea summaryof theinfor-
nialion u.h!ihrnighibc availahlIOthcm rcgdrdioi:the rzlo:aiiooitlùpi dnd Nwiijo
tamil~c*f.or rheurcoitheSub-Cummi'\i<in ai 11ncxi(IV891resri3n.hl< Dac\ aricndcd
the Cungres%,onah Ie~ringraiiJi,i,itrArtzona and hlr.Carey niade a fieldtripio
Arizona for the purposeof collectinginformation190 PRNILECES AND IMMUNITlES OF THE UNITED NATIONS
their personal capacity and are acting in this capacity with complete inde-
pendence and impartiality" (docs. Nos. 151-152).
Ir)The Office of Legal Affairs has confirmed that the status of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities
is that of a subsidia.v o-ean of the Commission on Human Riehts -hose
members are experts nominated by Governments serving in their individual
capacity (E/CN.4/Sub.2/1982/3, para. 18).
70. In anv event. in resvect of Mr. Mazilu. the Romanian Government has
erplir.iily acknoi\.ledgcd thai hc war appointcd by the Sub-Commission in his
personal capacity io prepare a report on human righis and youth (doc. No. 78,
para. 1).
71. The members of the Sub-Commission, who are thus neither governmen-
ta1 representatives nor members of the staff (i.e., officials) of the United
Nations, and yet are charged with carrying out an important function of the
Organization, thus clearly fall within the category of experts on missions dis-
cussed ahove (Sec. IV, B). Indeed, they are very similar to the members of
the Ad Hoc Working Group of Experts on Human Rights (see item A.8 in
Annex 1)'.
B. Rapporteurs and Special Rapporteurs of the Sub-Commission
72. The Sub-Commission has a long-established practice of appointing rap-
oorteurs and soecial raooorteurs. usuallv from amona its members. to assis1it
in perforrni& itr tasks.'ihis praciice wa; regularized by a rei of guidelines ihat
the Sub-Commijsion adopted ai ils tuenty-seventh session. in 1974, uhich in
relevant part provide as follows: (1)ihe appointment of special rapporteurs to
siudy specifisitems is a de\irable onc and should be coniinued: (ii) there should
be a time-limit forthe vre~aration of studies and vresentation of revorts to "be
extended as and when nece~cary": (IIIthe number of special rapporteursto be
appointcd mut take inio account the needs of thc Sub-Commisrion and the
ability of the Secretariat to provide the necessary services. According Io the
guidelines, the Sub-Commission may also appointone of its members "to make
a study of an item and to make proposais for future work", the authors of
which have been referred to as "ravvorteurs" (doc. No. 150).It avoears that in
the praciice of the ~ub-~ommi\\i& therc irno essential disiinciion bctween
"rapporteurs" and "special rapporteurs", though oftcn pt'rponsdesignated io
undertake studies or ~eoorts with financial implications and which therefore
must be endorsed by théparent bodies (the commission or the ECOSOC) are
designated as "special rapporteurs" while those who prepare reports that have
no financial imÜlications are called "rapvorteurs".
73. The rapporteurs and special rapporteurs are normally appointed from
among the members of the Sub-Commission. though there have been some
exceptions. In the past ten years, for example some 50 special rapporteurs or
rapporteurs have been entrusted with studies or reports on various subjects.
About 13 of them completed their assignments well after they ceased to be
members of the Suh-Commission (see Ann. 1I.A hereto); another four rap-
porteurs or special rapporteurs have never been members of the Sub-Com-
The faciihai rince1983.by rrasonof ECOSOC rcsolulion 1981132(doc No. 154).
membcrsof theSub-Cornmirrion art elecicdpairrwiih an alicrnatc.whoalrofunciion5
inan individualçspariiy. in way changerthe rialui of ihesemcmbrrrand aliernaies
underthe CieneraConvention. WRITIEN STATEMENT OF THE SECRETARY-GENERAI. 191
mission (Ann. 1I.B). The conferral or termination of the assignment or the
status of rapporteur is not necessarily Linkedto a term of office as a member
of the Sub-Commission.
74. When a member of the Sub-Commission is appointed as one of its rap-
oorteurs. then that an~oi..ment eives a- additional basis for his status as an
expert on mission. And if that assignment should continue beyond the term of
the membershio - as occurs from time to time - then, although the original
basis of his expert status has fallen away, that statuscontinues, albeit on a more
limited basis, until the specialtask is completed, or abandoned or reassigned to
another person by a competent organ.
75. As a nurelv functional arraneement. Le.. one that a~olies onlv "durina
~ ~ = ,
the period of their missions. includi& the rime spent on joirneys in conneciioi
with their missions" (aee Sec. 22 of the Gencral Convention). the rapporteurs
can only receiveany benefits from their status while carrying out or attempting
to carry out their assignments.
VI. THE SITUATIO NF MR. MAZUU
A. Mr. Mozilu's Appointment os Speciol Rapporteur
76. The reeularitv of Mr. Mazilu's aooointment as Snecial Rannorteur to
- .. ..
prepare a report for the Sub-Commission on human righis and youth has never
been challenned. In this connection ii should be noted thai, in spite of iis formal
titl~ ~ ~~ ~ ~ -~-~om-~ssion on the Prevention of ~iscrimination and Protec-
lion of hlinorities". ils actual funciions have long been expanded bg reason of
soecific decisionsol'the Commission and the Council, as uell as through its own
.r~~~.~~...
77. One of the basic rerms of reference of the Sub-Commission i\ "in per-
form anv oihcr funciions entrusied io it bv ihe Economic and Social Council
and the ~ommission on Human Rights"'.-In respect of the report assigned to
Mr. Mazilu, noted earlier, the Commission had in 1985requested the Suh-Com-
mission to pay attention to the role of youth in the field of human rights (doc.
No. 3). On the basis of that request, the Sub-Commission charged Mr. Mazilu
with preparing a report on human rights and youth (doc. No. 6), which assign-
ment was then endorsed by the Commission by its resolution 1987/44 (doc.
No.~15)~,It ~s ~ ~~ ~ ~ ~ ~ ~e that the assienment -f Mr. Mazilu is oronerlv ...
autborized and falls within the Sub-Commission's terms of reference.
78. It should be noted that even though initially Mr. Mazilu was not referred
~ ~a~ ~ ~n~Xi~~ ~ ~~ ~ ~ r .n ~uh-commission resolution 1985/12. both the
Commission and the Council, which are the parent organs of' the Sub-
Commission, later referred to bim, on the basis of his functions (see para. 72
above) as a "Special Rapporteur" (docs. Nos. 88, 99).
B. The Conlinuolion of Mr. Morilu's Appointment os Speciol Rapporteur
79. According to its established practice, the Sub-Commission could extend
Mr. Mazilu's assignment as SpecialRapporteur past the term of bis membership
on the Sub-Commission, provided that he continued to be willingto cary it out.
Indeed, in the absence of any clear indication on the part of either the Sub-
' Reponof the Commisrion on ilsfifihsession. Offioal Rerord, oJrhr Econom~cond
Sor;olCounril, Nmrh Se.es~on S,upplem6,nrNo. 10, k 1371. Chap IV. para. 13.192 PRIVUEOES AND UlMUNlTlES OF THE UNITED NATIONS
Commission or of Mr. Mazilu that the assignment should be considered ter-
minated before its completion, there would be a presumption that it continued.
80. In fact, the ~ub-~ommission explicitly indicatéd and decided, at its
thirty-ninth and fortieth sessions, that it wished Mr. Mazilu to continue and to
complete his report on human rights and youth, even though he was by then no
longer a member of the Sub-Commission. These decisions were subsequently
endorsed by the Commission and by the Council (see paras. 10, 18 and 23
above).
81. ~r. Mazjlu in turn, whenever he was in a position io communicaie with
the Sub-Commission. clcarly indicaicd thai hc wishcdio continue ro carry out
his assinnment. if possible by means of visitsIo Geneva but. if necess..v. work-
ing in Romania (;ee paras.12 and 30 above).
82. The mere fact that Mr. Mazilu delayed the start of his report, for medical
or for other reasons. could not deorive him of hisassianment or of his status
as a SpecialRapporteur of the ~ub-commission, unlessihat body itself decided
that for reasons of his health or because of the delays it wished to make a
change. It did not so decide.
83. The fact that Mr. Mazilu had resigned or been terminated from al1his
governmental posts makes no difference to his status as Special Rapporteur of
the Sub-Commission. This is so because the assianment he received from the
Sub-Commission in no way related to or was derived from any such posts.
Indeed, he received his assignment as a member of the Suh-Commission, to
which he had been elected "in hisoersonal caoacitv".
84. Finally, the mere fact ihat when hlr. hlalilu'; term expired. hi, Govrrn-
mcnr nominated another citizen for membership on ihe Sub-Commission whom
the Commission thereupon elected thereto isee oara. 13 above). and the new
member then indicarcd hiswillingnessand inleniion IO complete.;he report ihat
had hecn assignedIo MI. Xlazilu.could noi deprise ihe latter of ihc asignment
ihat he. oersonallv. had rcceived from the Sub-Commission.This is so besause
his Go&nment, aside from having nominated him in 1983/4 as a member of
the Sub-Commission, had thereafter no further responsihility for the tasks he
assumed inthat ca~. .tvor even otherwise. Nowhereisit orovided thatthe Sub-
Commission, or other United Nations organs, may only giveassignments to per-
sons with the approval of their Governments.
C. Mr. Mazilu's Sratus as an Experr on Mission
85. In the oresent case. Mr. Mazilu was entrusted bv the Sub-Commission
with preparing a report on human rights and youth. hile Sub-Commission
resolution L985/12did lay down some general guidelinesfor the preparation of
the report. Le., to analyse theeffortsand measüres for securing theimplementa-
lion and enjoyment of human rights by youth, particularly the rights to life,
education and work, the resolution did not specify wherehe should prepare the
report. Althoun- it ap. .red to be assumed that he would do so laraelv i-.
Romania, administrative arrangements were also made to enable him, during
his preparation, to come to Geneva for consultations and to present his report
to the Sub-Commissionupon its completion. It wasalso assurnedthat he would
receivethe customary assistance from the United Nations Secretariat in prepar-
ing his report. including, as a minimum, the dispatch and the receipt, to and
from Romania. of materials relevant to the reoort and that he would be com-
municating with the United Nations ~ecretariat concerning the report. Con-
sequently, Mr. Mazilu was in effect on mission in Romania in so far as his
preparation of the report is concerned. He would also have been on mission WRITTEN STATEMENT OF TE SECRETARY-OENERAL 193
from Bucharest to Geneva had he been permitted to travel for consultations
with the Human Rights Centre and to present his report in Geneva.
86. Accor~~~~ - ~Article VI. Section 22. in.t~e dace where an exoert is on
mis5ion. he should be accorded"such privilegesandimmuniiies ar are'necessary
for the independent exercise of his funciions during the period of his mission".
The events of this case show that: (i) Mr. Mazilu was willingand eager Io com-
municate with the Centre regarding his report, but he had for at least some time
been prevented from doing so; (ii) he was willing and prepared to travel to
Geneva for the purpose of consultations on his report, for which permission
was, however, denied by the competent authorities; (iii) he was willing and
prepared to come to Geneva ta present his report, but he was not allowed to
make thetrio: iiv)the Centre for Human Riehts. the UNlC office in Bucharest.
and the UNS office in Bucharest tried r&eatedly Io contact him, but for a
considerable ~eriod hiswhereabouts wereunknown; (v)the Centre and the Sub-
Commission, as well as the Secretary-General himself requested CO-operation
from the Romanian Govemment ta send someone to visit Mr. Mazilu with a
viewto assisting him in preparing his report, but such requests were rejected by
the Romanian authorities.
87. The purpose of Section 22 of the General Convention is to ensure that
"experts performing missions for the United Nations", i.e., persons who have
a function or task ta perform for the Organization, are enabled ta do so with-
out interference from (and indeed with certain indicated facilitation by) those
Governments ~arties Io the Convention which are in a vosition to do so. As
indicated in pa.ragraph 63above. rhai al\o applies in respect of the Government
of uhich the expert is a national. E\.en if itcould bc argued ihai the special
status should normally only a~~lvwhen the exnert is iourneyinrcoutside his own
country (and thcrr is no indisaiion in the ~on\,eniion that sucha limitation \vas
iniendcd) the Goternmcnr concerned cannot ihcn bz permitred ro rtullify the
conventional status entirely by arhitrarily preventing preciselysuch a journey in
connection with the expert's mission.
CONCLUSION
88. This statement has in the first instance endeavoured to establish that the
Economic and SocialCouncil was fullv authorized Io address ils auestion to the
Court, as that query is purely legal and arose within the scope of the Council's
activities,concerning as it does the work of one of its subsidiary bodies. As the
Council did not pose its question within the framework of Section 30 of the
General Convention, the Romanian reservation Io that provision, even if inter-
preted most broadly, cannot prevent the Council from exercising a power
derived from the United Nations Charter. Finally it is indicated. and it also
appears from this stîremeiir a5a uholr. thar rhe ~oun.-il'squestion ir an impor-
iani one, borh berÿu\e of the pariiiular circumstanccs from which it arose and
of the wider impliçaiionr ithîs for the cffectite work of a sigiiificani group oi
perrons pcrforming unique and in part i,ital funciions for the United Nations.
89. Wiih reierence io ihc 5uhstan.-ei)f the Counsil's question. ihis raiem me ni
has demonstrated that the catezorv of "experts on missions", established and
regulaied bySection 22 in ~rticie VI of the'General Convention. an insirument
direiily derived Norit rheCharrcr and claential to the smooth functioning of the
Oreanization. is. accordine to weU-establishedand consistent oractice. a~ol.e..
IO many diff~rcnr clitegori;~ of persons uho - not beinl: eith& representaiives
ofGo\,rrnmenis or oflicials of the Organilaiion - arc nssignedio asurne func-
tions or to perform specific tasks for the latter. These categories include both194 PRNUBGES AND UIMUN~TIES OP TKE UNITED NATIONS
the members and anv raoo.rteu.. or similar functionaries of bodies such
as the ~ub-~ommission on Pre\,enrion of Discriminaiion and Protection of
Minorilies. who funcrion in their individual ca~acity and ro so function rcquire
the protection of the functional immnnities derivëd from Section 22 of the
General Convention, if necessary even vis-à-vistheir own Oovernments and in
their own countries.
90. Finallv. it follows from the facts summarized and analvsed in the state-
meni, thar M;. Mazilu was a properly appoinied special rapporreur of the Sub-
Commission, both while he wasa member of ihat body and even after his term
of memhership expired, because the Sub-~ommission,with the specific support
of the parent Commission on Human Rights, continued to expect him to
prepare and to present in person a report that was assigned to him, and he con-
tinued to be willing to do so. It also appears from the circumstances that led
the Council to pose its question, that for Mr. Mazilu to be able to carry out the
task assigned to him in the way both he himself and the Sub-Commission
exnected. he reauired the orotection of S-~tion 22 of--he~ ~~ ~ ~-~onvention
-'a protecrion Cowhich hi waseniitled by the terms of ihat instrument as inter-
prcted in accordance mirh the above-mentioned pracrice of the Uniied Nations.
(Signed)Carl-August FLEISCHHAUER,
The Legal Counsel
of the United Nations.
28 July 1989. WRITTEN STATEMENT OF THE SECRETARY-OENERAL 195
Annex 1
EXAMPLE OSFCATEOORIE OSPERSOKC SONSIOERE TO BE"EXPERT SN MISSIONS
FOR THE UNITEDNATIONS "ITHIN THE MEANINO OF ARTICLEVI,
SECTION 22, OF TaE GENERAC LONVENTION
Cale~ories Sources
A. Members of Commissions,Com-
mitteesand similar organs
1. International Law Commission ILC study', paragraph 341;doc.
No. 143; memo 29.6.73 from
Legal Counsel ta USG for Ad-
ministration and Management.
2. Advisory Committee on Adminis- As above.
trative and Budgetary Questions
(except full-time Chairman)'
3. International Civil Service Com- As above; letter 21.7.88 from
mission (ICSC) (except full-time ASG for General Services to the
Chairman and Vice-Chairman)' Executive Secretary, ICSC.
4. United Nations Administrative Tri- As above; letter 1.5.89 Legal
bunal Counsel to the President of the
Administrative Tribunal; doc.
No. 140.
5. InternationalNarcotics Control As above; letter 7.3.73 Legal
Board (formerly the Permanent Counsel to Office of Financial
Central Narcotics Board) Services.
6. Joint Inspection Unit* Letter 8.10.73 from the Legal
Counsel ta a member of JIU;
doc. No. 120.
7. Human Rights Committee Letter 22.8.1983 from the Office
of Legal Affairs to the Con-
troller; doc. No. 131.
8.Ad hoc Working Group of Experts 1974 United Notions Juridical
of the Commission on Hunian Yearbook ("UNJYB"), Chapter
Rights V1.A. No. 14; doc. No. 121.
'The practiceof the UnitedNations,the specializedagenciesand thelnternational
Atomic Energy Agency concerningtheir status, privilegesand immunities: Studies
preparedby the Secretariatfor the InternationalLawCommission.
The GeneralAssembly decidedin its resolution3188(XXVIII)of 18 December
1973that thecalegoriesof officialsto whichthe provisionsof ArticlesVandVI1of the
GeneralConvention apply,houldincludethe Chairmanof ACABQand membersof
th'The OeneralAssemblydecidedin its resolution3357(XXIX) of18December1974
that thehairmanand Vice-Chairmanof ICSCshouldbe regardedas officialsof the
UnitedNations.196 PRIVlLEOES AND IMMUNlTLES OF THE UNITED NATIONS
9. Committee on the Elimination of Memo 15.9.69 from Office of
Legal Affairs to the Division of
Racial Discrimination
Human Rights, 1969 UNJYB;
doc. No. 122.
10. Committee on the Elimination of As above.
Al1 Forms of Discrimination
Against Women
Il. United Nations University Council Letter dated 22.5.74 from the
Office of Legal Affairs to the
USG for Inter-Agency Affairs
and Co-ordination.
B. United Narions peoce-keeping
missions
1. Military observers of United Na- ILC study; doc. No. 143.
tions Truce Supervision Organiza-
tion (UNTSO)
2. Military observers of United Na- ILC study; doc. NO. 143.
tions Military Observer Croup in
lndia and Pakistan (UNMOGIP)
3. The Commander's Headquarters ILC study; doc. No. 143
Staff of the United Nations Emer-
gency Force (UNEF)
4. The Commander's Headquarters ILC study; doc. No. 143,
Staff of the United Nations Force
in Cyprus
C. Government officielon loan
1. US Government civil service on Letter 24.1.89 from Office of
assignment to UNICEF Legal Affairs to UNICEF; doc.
No. 138.
2. Frenchlanguage co-ordinators paid Memo 1.8.85 from Office of
directly by the French Government LegalAffairs to the Office of Per-
sonnel Services; doc. No. 135.
3. Persons on ioan from government Memo 19.11.81 from Office of
LegalAffairs to Office of General
servicing for the Office of the
United Nations ReliefCo-ordinator Services; doc. No. 128.
(UNDRO)
4. The Commander and members of UN document E/4994. Annex III,
the Technical Cadre Unit of the 1971, UNJYB, Chapter VI.A,
Swedish stand-by force for United NO. 3.
Nations service to assist in
reconstruction of areas in Peru
5. French military personnel parti- Memo 1.3.89 from Office of
cipating in thé mdti-national de- Legal Affairs to United Nations
mining missions in Afghanistan Office at Geneva; doc. No. 139.
D. Short-term rechnicol ossisronce ex- Note Verbale 3.5.51 from the Sec-
perts on special service agreement retary-General to Member States;
(SSA) with the United Notions UN Special Service Agreement;
docs. Nos. 141, 141Aand 142. WPJTTEN STATEMENT OF THE SECRÈT~Y-OENERAL 197
E. Special Represeniati~,esof the SPC-
relary-General
1. Mr. Olof Palme as Soecial Reore- Contract (Exverts) between the
sentative of the ~ecrétary-cenual UN and MI: ~aime, February
on mission to Iran/Iraq, 1982 1982; doc. No. 129.
2. Special Representative of theecre- Letter 9.4.81 from Office of Legal
tary-General to the United Nations Affairs to the Counsel for the
International School ëeneral Counsel if (US)~ational
Labor Relations Board; doc. No.
F. Experts to investigale reports of Memo 15.7.82 from Office of
alleged use of chemical weapons in Legal Affairs to Centre for Dis-
armament; doc. No. 130.
G. Persons who entered inro Special UN Contract (Consultant); letter
ServiceAgreement wirh the Unired 8.3.79 from Office of Legal Af-
Narions asconsullants, independenr fairs ro Office of General Ser-
contractors vices; docs. Nos. 141, 142.Memo
20.6.75 from Office of Legal
Affairs to the Controller, 1975
UNJYB, Chapter VI.A, No. 21.
H. Participants inviled ro attend rhe
United Nations seminars or
meetings
1. Experts invited by the United Na- Agreement between UN and Ni-
tions to attend the UN Meeting of geriadated 27.2.87; doc. No. 137.
Experts on SpaceScienceand Tech-
nology in Nigeria, 1987
2.Participants invited by the United Letter 28.2.85 ~ ~m U~ De-~. of
Nations to attend the Interregional '1'e:hnicalCo-operation for L)c\el-
Training Programme in Govern- opment IO the hlinister of Financc
ment Budgetary Methods and Pro- of Cyprus; doc. No. 133
cedures in Cyprus, 1985
3. Participants invited by the United Letter 13.5.85 from the USG for
Nations toattend theSpecialSession Political Affairs, Trusteeship and
of the Special Committee of 24 Decolonization to the Foreign
from 13to 17 May 1985in Tunisia Ministry of Tunisia; doc. No.
134.198 P~EGES AND LMMUNITIES OF THE UNITED NATIONS
Annex 11
A. LIST OF RAPPORTEURS OR SPECIA L APPORTEURS OF THE SUB-COMMISS ION
PREVENT~O O F DISCRIMINATIONAND PROTECTION OF MINORITIES WHO
Legend: ER : Economic and Social Council resolutions.
CR: Commission on Human Rights resolutions.
SUR: Sub-Commission resolutions
Mondale Date of
Legislarive
Shorl fille ofsludy or and compleiion
reporr Name Sl',iUS and sralus auihoriiy
1. Development of the MI. Aureliu 1974 1978 CR 4 (XXX)
1974
right to self-determi-Cristccu Mcmber Nol member
nation Special ËR 1865(LVI)
E/CN.4/Sub.2/404 Rapporteur 1974
SUR 3
(XXVII) 1974
2. ImplementatianofUN Mr. Hector 1974 1978 CR 5 (XXX)
resolutions on right Gros Espiell Member Nol member 1974
of peoples to self- Special ER 1866(LVI)
determination Rapporteur 1974
E/CN.4/Sub.2/405 SUR 4
(XXVII) 1974
3. Protection of human Baroness Elles1974 1978 SUR 10
rights to non-citizeSpecial Member Nol member (XXVII) 1974
E/CN.4/Sub.2/392/ Rapporteur
Rev. 1
4. Foreign economic aid MI. Antonio 1977 1978, 1980 SUR Il (XXX)
impact on respect for Cassese Membcr Not member 1977
human rishts Rapporteur
E/CN.4/Sub.2/412
5. Prevention and pun- MI. Nicodème 1971 1978 ER 1420
ishment of aime of Ruhashyan- Member Nat member (XLVI) 1969
genocide kiko SUR 7 (XXIV)
E/CN.4/Sub.2/416 Special 1971
Rapporteur
6. Right of everyone to Mr. C. L. C. SUR 1982/23
1982 1988
leave and return to hiMubanga- Member Nol member 1982
own and other coun- Chipoyya
ries Special
E/CN.4/Sub.2/1988/ Rapporteur
35 and Add.1 and
Corr.
7. Implications forhu- Mrs. Nicole 1977 1982 SUR IO(XXX)
man rights in state ofQuestiaux Member Not member 1977
siege or emergency Special sD (XXXI)
E/CN.4/Sub.2/1982/ Rapporteur 1978
IS WRïlï'EN STAT€MENT OF THE SECRETARY-OENKRAL 199
Mandate Dale O/
Short title ofsluor ond completion Legirlalive
reporl Nome siorus and starus aulhority
8. DircriminationagainstMI. Jost 1971 1983 ER 1589 (L)
indigenous papula- Martincz- Mcmbcr No: mcmber 1971
fions Cabo
E/CN.4/Sub.2/476 Spc~ial
and Adds. Rapporteur
E/CN.4/Sub.2/1982/
2 and Addr.
E/CN.4/Sub.2/1983/
21 and Addr.
9. Traditional praciiccr Mrs. Halima 1982 1986 SUR 1982/15,
affecting ihc hcalih 01 Embarck Member Not mcmber 1982
uomcn and rhildrcn Warzazi CR 1984/48,
E/CN.4/1986/42 Spsial 1984
Rapporteur ER 1984/34,
1984
10. Problems of intoler- Mrs. Elizabeth 1983 1987 CR 1983/4û,
ance and discrimina- Odio Benito Membcr Not member 1983
tion on grounds of Special SUR 1983/31.
religion oreliel Rapportcur 1983
E/CN.4/Sub.2/1987/
26
II. Administration of jus- Mr. Marc 1984 1987 SUR 1984/7,
Membcr No1 member 1984
CR 1985/46,
19115
12. Slavery and slavery- Mr. Marc 1984 1987 ER 1982/129,
like practices (Report Bossuyl Mcmber No1 member 1982
on Mauritania) Spaial CR 1982/20.
E/CN.4/Sub.2/1984/ Rapporteur 1982
23 SUR 1984/28,
1984
13. Exploitation of child Mr. A. Bouh- 1979 1981 ER 1980/125.
labour diba Member Not membcr 1980
E/CN.4/Sub.2/479 Spaial CR 17
Rapportcur isanVI),
.-"-
SUR 7
(XXXII), 1979200 PRIVaEGES AND IMMUNIiiES OF TM UNITED NATIONS
B. LUT OF PUISONA SSPOINTE DY THE SUB-COMMIS SIORAPPORTEU ORRS
SPECIAR LAPPORTEU WRHO WERE NOT MEMBER OF THE SUB-COMMISSION
Short tirle of srudy or Mandure Dole of
report and completion Legislotive
Nome slutus and stutus aulhorily
1. Independence and im- Mr. L. M. 1979 1985 SUR 5
partiality of judiciarySinghvi Nat Not member (XXXII)
and jurors, assessors Special member 1979
and the independence Rapporteur
oflawyers
E/CN.4/Sub.2/1985/
18, Add.1-6
2. Achievements and ob- Mr. Asbjmn 1984 1984 ER 1984/24,
stacles first decade Eide Not Not member 1984
,for action to combat
Special member
racism and racial dis- Rapporteur
crimination
-~ ~ -~~~
3. Draft declarationon MI. L. M. 1987 1988 SUR 1987/23,
independence and im- Singhvi Not Not member 1987
partiality of judiciaSpecial member
jurors and assessors Rapporteur
and the independence
of lawyers
E/CN.4/Sub.2/1988/
20 MÉMORANDUM DU GOUVERNEMENT
DE LA RÉPUBLIQUE SOCIALISTE DE ROUMANIE
Mémorandum relatif àla requétepour avis consullatif
transmise à la Cour internationale de Justice en vertu de la résolution1989175
du Conseil konomique et social du 24 mai 1989
Par sa résolution1989/75 adoptéele 24 mai 1989le Conseil économique et
social de l'organisation des Nations Unies a demandé,à titre prioritaire, à la
Cour internationale de Justice,
«un avis consultatif sur la question juridique de l'applicabilitéde la sec-
tion 22 de l'article VI de la convention sur les privilègeset immunités des
Nations Unies au cas de M. 1)umitru Mazilu en sa qualité derapporteur
spécialde la Sous-Commission de la lutte contre les mesures discrimina-
toires et de la protection des minorités».
Dans cette résolution, on affirme
«qu'une divergence de vues s'est élevéentre l'organisation des Nations
Unies et le Gouvernement roumain quant a l'applicabilitéde la convention
sur les privilègeset immunités desNations Unies au cas de M. Dumitru
Mazilu, en sa qualitéde rapporteur spécialde la Sous-Commission ..»
Vu cette demande d'avis consultatif, la partie roumaine désirefaire savàir
la Cour ce qui suit:
1. La Roumanie est partieàla convention sur les privilègeset immunitésdes
Nations Unies, approuvéepar l'Assembléegénérale des Nations Unies le 13fé-
vrier 1946. La Roumanie a adhéré à cette convention par le décretno 201 du
21 avril 1956et la convention est entréeen viguàson égard àla date du dépôt
de son instrument d'adhésion, à savoir le 5 juillet 1956.
A l'occasion de son adhésion à la convention, la Roumanie a formuléla
réservesuivante àla section 30 de la convention, relative au règlement des dif-
férends:
«La République populaireroumaine ne se considèrepas liéepar les sti-
oulations de la section 30 de la convention. en vertu desauelles la iuridic-
;ion de la Cour internationale de Justice est obligatoire encas de contesta-
tion portant sur l'interprétation ou l'application de la convention; en ce
aui concerne la comoétencede la cour internationale de Justice dans les
différendssurgis dans de tels cas, la position de la République populaire
roumaine est que, pour la soumission de quelque différendque ce soàla
réglementationde la Cour, il est nécessaire, chaquefois, d'avoir le consen-
tement de toutes les parties au différend. Cette réserves'applique égale-
ment aux stipulations comprises dans la mêmesection, selon lesquelles
l'avis consultatif de la Cour internationale doit être accepté comme
décisif»
Cette réservede la Roumanie a étédûment enregistrée auxNations Unies et
distribuéepar le Secrétairegénéra,n tant que dépositairedela convention, par
la lettre circulaire CN.67.1956.Treaties du 13 juillet 1956(dont une copie est
jointe).202 PRIV~ÈGES ET IMMUN~S DES NATIONS UNIES
L'effet juridique de la réserveformulée par la Roumanie, tel qu'il est prévu
dans la convention de Vienne sur le droit des traitésdu 23 mai 1969(art. 21),
en est Quecette réservemodifie. dans lesrelations entre I'Etat auteur et lesautres
~tats parties à laconvention, donc AI'egardde l'organisation des Nations Unies
Cgalement.le\ dispositionsde la convention sur lesquellesporte la réserve,dans
la mesure prévue~parcette réserve.
La réserve formulée par la Roumanie contient, essentiellement, deux élé-
ments :
ut la Roumanie ne se considere pas liéepar les dispositions de la seciion 30,
selon lesquelleslajuridiction de la Cour est obliaatoire en cas de contestation
oortant sur l'intehrétation ou I'aooli..tion del~ ~o~-~~t~~~ ~~ ~ ~
b) Lnce qui concerne'la compétencede la Cour, laposition de la Roumanie est
aue. pour la soumission à la Cour de qu. .ue différend que ce soit, il est
nécesiaired'avoir, chaque fois, le consentement de toutes les parties au dif-
férend.
Cette réserve,avec ses deux éléments,s'applique égalementà l'égard des dis-
positions de la mêmesection relatives au déclenchementde la procédured'avis
consultatif de la Cour, en cas de litige entre l'organisation des Nations Unies
et un Etat membre, avis qui, selon la section 30 de la convention, devrait être
acceptépar les parties comme décisif.
II en découle:
a) que la Roumanie n'e,t pas li6e par le, disporiiions de la seciion 30, relatives
a la juridiction obligaioire de la Cour en rü\ de différend\ éveniuel5surgis
entre I'Oraanisationdes Nations Unies et la Roumanie oortant'sur I'inter~ré-
ta~i~u ouÏ'anenicat~on ~e la convention de 1946: -~ ~-
b) qu'en ce qui concerne la compétenced'examiner'tout différend surgi entre
I'Oreanisation des Nations Unies et la Roumanie. v compris dans le cadre
de 1; ~rocédureconsultative, la Cour ne saurait se déclarer compétenteque
s'il existe le Consentement de toutes les parties au différend, la Roumanie
comprise,
2. La Roumanie a déclareexpressemeni qu'elle n'eiait pas d'accord à ce que
l'on demande quelque avis que ce soit a la Cour concernant le cas priseni (voir
le mémorandumadresse le 6 janvier 1989au conseiller juridique de l'organisa-
tion de\ Nation7 Unies par le représentant permanent de la Roumanie à I'Orga-
nisaiion des Nation5 Unies, document E,CN.4/1989/69 du 13 fcvrier 1989,
annexe II. par. 3).
En conréquence, les conditions nécessairesne sont pas réuniespour que la
Cour iniernarionale de Ju\ticc sediclare cornpitenie d'cmeiire un avis sonsulta-
tif relatifà I'interorétationet à l'application de la convention sur les orivilèees
et immunités desNations Unies, dans les rapports entre la Roumanie et l'<)ria-
nisation des Nations Unies.
Le fait aue la résolution 1989/75 du 24 mai 1989du Conseil économiaue et
social nc se référepas à la section 30 de la conveniion, en iani que iondément
pour sa dcmatide d'avis consultatif. mais a la résoluiion 89(1)du II décembre
1946de l'Assembléeeénér"le.n'est nullement à mêmede changer l- situation.
kianr donn; que la demande d'avii son\ultarif a pour objet «la question juridi-
que de I'applicabilitéde la section 22 de l'article VI de la convention r Aun cas
concret considérécomme un différend entre un Etat oartie à la convention et
l'organisation des Nations Unies. C'est pourquoi, la demande d'un pareil avis
consultatif, sur l'application d'une disposition de substance de la convention,
ne saurait faire abstraction des dispositions de la mêmeconvention relatives au MEMORANOUM DE LA ROUMANIE 203
rèelement des différends.v..o~ ~is en ce aui concerne la demande ~ ~ ~s con-
sukatifs à la Cour sur de tels différendsphtant sur l'application de la conven-
tion. donc la section 30 de ladite convention. S'il enétaitainsi. a fortiori on ne
saurait faire abstraction de la réservede la Roumanie à la section 30. et cela
parce que la Roumanie a adhéré a Inditesonven~iondans sa tot~l~t~e .t la réserve
formuléereprésenteune partie intcgrante de l'expressiondu consentement de la
Roumanie d'adhérer a la convention: cette réservea un ooids essentiel oour
déterminer I'étendue des obligaiions qu'elle aassumécsenvirs les autres parties
a la convention. de mémequ'cnvcrs l'organisation des Nations Unies.
Si l'on accentait ou'un État oartie à k convention. ou I'Oreanisation des
Nations unies; puissi demanderclue des différends concernant l'application ou
I'interorétationde la convention soient portésdevant la Cour sur un autre fon-
dement au. les disoositions de la section 30 de la convention. .e~ ~ ~it romore
l'unitéde la convention. dsavoir les dispositions de substancedc cellesrelniives
A la solution des différends. ce qui serait Amëme de modifier Ic contenu et
I'étenduedes obligations assuméespar les Etats lorsqu'ils ont donné leur con-
sentement d'êtreliéspar la convention.
3. Sans p.éi.dicede sa nosition. telle au'elle a &téexposéeaux noints 1et 2
ci-dessus, notamment que la Cour internationale de Justice n'a pas la cumpc-
tence àdonner un aris consultatif sur cctte question. la Roumanie considere quc
le oroblème de I'annlication de la convention de 1946 ne seoose mémenas~en
..
~'eipèce.
En premier lieu, la convention n'assimile pas les rapporteurs, dont les activi-
téssont occasionnelles, aux experts qui accomplissent des missions pour I'Orga-
nisation des Nations Unies.
L'expression même «expertSn y est employéepour les distinguer des « fonc-
tionnaires » des Nations Unies, lesquels déploientune activité à caractèreperma-
nent, alors que celle d'experts n'est qu'occasionnelle.
Mêmesi on reconnait partiellement aux rapporteurs le statut des experts des
Nations Unies, les dispositions de la section 22 de l'article VI de la convention
(experts en mission pour l'organisation des Nations Unies) font ressortir claire-
ment que ceux-ci ne jouissent que de privileges et immunités fonctionnels,
notamment ceux liés à l'activité au'ils remnlissent nour I'Oreanisation des
Nations Unies, pendant la durée de'leur mission et seilement dans les pays où
la mission est remplie, y compris le temps du voyage lié à cette mission. A cet
égard, la section 22 de~laconvention prevoit que
«les experts ...lorsqu'ils accomplissent des missions pour l'organisation
des Nations Unies, jouissent, pendant la duréede cette mission, y compris
le temps du voyage, des privilègeset immunitésnécessairespour exercer
leurs fonctions en toute indépendance)).
Ces dis~ositi0nSfont ressortir clairement au'un expert ne iouit vas de orivilèaes
et imm;nités n'importe quand, mais uniquement dans le pays où il eit envoyé
en mission, et seulement pendant la duréede celle-ci,de mêmeque dans lespays
de transit. lors desvovaaes reouis var la mission. De mëme. le. ori.ileaes et les
immunité; ne peuveni courir Quedu moment du départ de l'expert en voyage
pour accomplir la mission. Pour autant que le voyage de l'expert aux fins
d'accomplir la mission pour l'organisation des Nations Unies n'ait pas com-
mencé,et cela pour des raisons qui n'ont aucun lien avec son activitéd'expert,
il n'y a nul fondement juridique pour prétendre des privilègeset immunités
conformément à la convention, sans égard au fait qu'il se trouve dans son
pays de résidence ou dans un aucre pays, dans une qualité autre que celle
d'expert. Dans le pays dont il possèdela citoyenneté,dans le pays où il a sa résidence
permanente, ou dans d'autres pays où il pourrait se trouver en dehors de la mis-
sion respective, l'expertnejouit de privilègeset immunitésqu'en cequi concerne
le contenu de l'activité déployéaeu cours de sa mission (y compris ses paroles
et écrits).
La Roumanie ne nie pas I'appiicabilitédes dispositions de la convention de
1946,dans le sens décricci-des&. Elle n'a pas connaissance du fait que les or-
ganes compétentsde l'Organisation des Nations Unies auraient donnéune autre
interprétation aux dispositions de cet article de la convention.
Par conséau.n~. ..~sa~. tel est le sensclair de~ di~7o~iti~ns de la convention.
il n'y a aucun londemeni juridique pour ,outenir qu'un liiigc aurait urgi çnire
l'Organisation de\ Nations Unies et la Roumanie. portant .,Url'application el
I'inierpréiaiion dc la conveniion.
1.En cequi concerne la situarion de l'ancien mcrnbrc roumain dans 13 SOUS-
Commission de la lutte contre les mesures discriminatoires et de la protection
des minorités :
M. Dumitru Mazilu a reçu le mandat d'élaborerle rapport sur «la jeunesse
et les droits del'homme)) en 1985par la résolution 1985/12 du 29 août 1985de
la Sous-Commission. Pendant le mois de mai 1987 il est tombé gravement
malade, raison qui a conduit, sur sa demande, à sa mise à la retraite pour inca-
pacité de travail..à .artir du ler décembre 1987. En 1988. une commission
médicalea, conformernent aux loi5 roumaines en vigueur, rcexaminél'étaide
saniéde hl. Dumirru hlalilu ci a dé~idide prolonger -our~une nuuvellr aiinee
sa mise à la retraite pour incapacité de travail.
La partie roumaine a soumis au Secrétariatdes Nations Unies ledossier médi-
cal complet de M. Dumitru Mazilu.
Depuis 1985jusqu'à la date de sa mise à la retraite, M. Dumitru Mazilu n'a
rien entrepris pour remplir son mandat. Au moment de sa retraite il n'avait
même pas commencé à rédiger lerapport en question.
Vu l'étatde sa santé,tel que constaté etcertifiépar les médecins,et sa propre
demande d'êtremis à la retraite pour incapacitéde travail, il étaitd'autant peu
probable que M. Dumitru Mazilu ait pu remplir son mandat de rapporteur spé-
cial. En fait, la tâche d'un rapporteur ne se limite uniquement à une simple
rédactiond'un texte, mais bien au contraire (cela suppose toute une série d'acti-
vités. tellesaue : une documentation aoor..ondie et obiective. dé.lac.ments.
contacts, etc.). Selon le dernier examen des médecins, M. Dumitru Mazilu
n'étaitpas en mesure d'assumer et d'effectuer une telle activité.Ni par la suite
n'ont apparu des éléments àmêmede prouver que I'étatde sa santéa"rait connu
une amélioration.
En conséquence,en raison de I'étatde sasanté,qui ne permet pas àM. Dumi-
tru Mazilu d'accomplir la mission respective, les élémentsde fait, à mêmede
poser le probleme de l'application de la convention, ne sont pas réunis.
A cet égard,il semble qu'il existeune différenceentre la position de la Rou-
manie et celle du Secrétariat desNations Unies. II s'agit là d'une différence
d'opinion portant sur des élémentsde fait concernant I'étatde santéd'une per-
sonne et sa canacitéde dédover une certaine activité. à savoir la mesure dans
laquelle l'&laid'incapaciié'deiravail de M. Dumiiru iazilu le rend inapte pour
élaborer le rapport cn que\iion. La partie roumaine considcrc que ceiie que\-
lion a déii éiitranchéenar I'avisde lacommisrion mcdiiale. rendu en 1987er
reconfirié en 1988. ER effet, ladite commission a décidéde mettre M. Ma-
zilu à la retraite pour incapacité de travail. La loi roumaine n'autorise ni
l'employeur, ni nul autre organe de I'Etatà ignorer ou outrepasser l'avis des
médecins. MEMORANDUM DE LA ROUMANIE 205
5. En conclusion:
- comme effet des réservesformulées par la Roumanie àla section 30 de la
convention sur les privilègeset immunitésdes Nations Unies, la Cour internatio-
nale de Justice ne peut pas sedéclarercompétentepour donner un avisconsulta-
tif sur l'application de la convention par la Roumanie oul'égardde la Rouma-
nie, dani le cas en discussion, vu que la Roumanie n'avait pas donné son
consentement pour la demande d'un pareil avis;
- faire abstraction de la section 30 de la convention et solliciter un avis
consultatif sur un autre fondement, ce serait rompre l'unitéde la Convention
et du consentement donnépar I'Etat concerné,lorsqu'il a décidd'adhérerà cet
instrument:
- il n'ya aucun fondement juridique pour soutenir qu'un différendaurait
surgi entre l'organisation des Nations Unies et la Roumanie - en ce qui con-
cerne I'aoolication ou I'interorétationde la convention. ou bien I. .olicabilité
de celle-ci;
- dans le cas en discussion, les élémentsde faàtmêmede poser le problème
de I'annlication de la convention ne sont vas réunis:
- ie; diflércnscsd'opinions el d'appréciationentre la Roumanic et le SecrC-
tariat des Nation5 llnies aortent sur la 5ituation de fAi5aroir l'étatde santé
de M. Dumitru ~azilu.~,eau.l l'a emoêché et I'emoêcheencore à remolir la
tâche qu'il aassuméelorsqu'il aétémembre de la Sous-Commission; cesdiffé-
rences de vues ne portent donc guère sur les aspects juridiques concernant
l'interprétation. l'application ou I'applicabilitéde la convention. PRIVILÈGES ET IMMUNITÉS DES NATIONS UNIES
Annexe
CN.67.I~~~.TREATES Le 13juillet 1956.
CONVENTIO UR LES PRIVILEGES ET IMMUNITÉS DESNATIONU SNES
AI'PROUVÉE PAR L'ASSEMBL ÉENÉRALE LE 13 FÉVRIER 1946
Adhésionpar Io Républiquepopulaire roumaine
Je suischargéDarle Secrétaireaénéralde norter à votre connaissance aue. le
5 juillet 1956; l'instrument d'adhésiondu'çiouvernement de la ~épublique
nonulaire roumaine àla convention sur les ~rivilègeset immunités des Nations
Uniesa étédépo,éauprésdu Secrétaire conformémentaux dtspositions
de la seclion 32de la con\,ention. aux termes de laquelle la contention entre en
vigueur àl'égardde chaaue membre à la date du dé.ôtn.r ce membre de son
instrument d'adhésion. .
L'instrument d'adhésion contientla réserveci-après:
«La République populaireroumaine ne seconsidèrepas liéepar les sti-
~ulations de la section 30 de la convention. en vertu desauelles la iuridic-
;ion de la Cour internaiionale de Ju$ticees1obligatoire eicas de coniesta-
[ion portani sur I'interprétaiionou l'application de la convention; en ce
aui concerne la comnétencede la Cour internationale de Justice dans les
différendssurgis dans de tels cas, la position de la Républiquepopulaire
roumaine est que, pour la soumission de quelque différendque ce soit à la
réglementation de laCour. il est nécessaire.chaaue fois. d'avoir le cnnsen-
tement de toutes les au différend. cette réserves'applique &gale-
ment aux stipulations comprises dans la mêmesection, selon lesquelles
l'avis consultatif de la Cour internationale doit être accepté comme
décisifo
Veuillezagréer,les assurances de ma très haute considération.
Le conseiller juridique pi.,
YUEN-LL I IANG.LETTREDU JURISCONSULTEET DIRECTEURGÉNÉRAL
DES AFFAIRES JURIDIQUESDU MINISTÈRE FÉDÉRAL
DES AFFAIRESÉTRANGÈRES DE LA RÉPUBLIQUE
FÉDÉRALED'ALLEMAGNEAU GREFFIER
Bonn, le 13juillet 1989.
Monsieur le Greffier,
J'ai bien reçuvotre lettre en date du 14juin 1989adressée au ministrefédéral
des affaires étrangères et par laquelle vousfaitesconnaître au Gouvernement de
la République fédérale d'Allemagne qu'il la possibilitéde transmeàtla
Cour un exposé au sujetdu cas objet de la résolution1989/75du Conseilécono-
mique et social des Nations Unies demandant à la Cour un avis consultatif sur
la question juridique de I'applicabilité de la section22 de l'article VI de la con-
vention du 13février1946sur les privilègeset immunités desNations Unies au
cas de M. Dumitru Mazilu en sa qualitéde rapporteur spécialde la Sous-
Commission de la lutte contre les mesures discriminatoires et de la protection
des minorités.
De l'avis du Gouvernement de la République fédérale d'AllemM.neMa-
zilu a continué d'êtrechargé,au-delà de la duréede ses fonctions en qualitéde
membre de la Sous-Commission, de l'élaborationen sa qualitéd'expert d'un
rapport sur le thème des «droits de l'homme et la jeunesse)) pour la Sous-
Commission.
Il jouit par conséquent des privilèges et immunitéssla section 22 de
l'article VI de la convention du 13 février1946sur les privilègeset immunités
des Nations Unies.
Veuillez agréer,Monsieur le Greffier, l'expression de ma parfaite considé-
ration.
(Signé D)r. OESTERHELT. WRITTENSTATEMENTOF THE GOVERNMENT
OF THE UNITED STATES OF AMERICA
By resolution 1989/75 of 24 May 1989, the United .Nations Economic and
Social Council ("ECOSOC") has requested on a priority basis, pursuant to Ar-
ticle 96 of the Charter of the United Nations and in accordance with General
Assembly resolution 89 (1) of II December 1946,an advisory opinion from the
International Court of Justice ("Court") on the legal of the
applicability of Article VI, Section 22, of the Convention on the Privileges and
lmmunities of the United Nations ("the General Convention") in the case of
Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commission on the
Prevention of Discrimination and the Protection of Minorities ("Sub-
Commission").
Upon receiving this request, the Court decided that the United Nations and
the States parties to the General Convention are likely to be able to furnish
information on the question submitted to the Court. By ils Order of 14 June
1989, the Court has fixed 31 Julv 1989as the lime limit within which written
statements may be submitted to the Court. in accordance with Article 66 of the
Statute of the Court, and 31 August 1989as the lime limit within whichStates
and organizations having presented written statements may submit written com-
ments on other written statements, in accordance with Article 66. paragraph 4,
of the Statute of the Court. The present statement will examine the facts and
the legal issues to which this request for an advisory opinion gives rise.
The General Convention accords various orivileees and immunities Io the
United Nations as an organization. IO represe~tatise;oi >lembers oi the ~nited
Nations. to United Nations officiais and IO eApertson mis$ions l'orthe United
Nations. Article VI. Section 22. of the GeneraÏ~onvention soe~rficallv ,eau.res--
Statespartir, IO accord to "expert\ (other ~hanofficia~\coming uithin the ~~ope
of Article V) perrorming missions for the Unitcd Nation>" such privilercs and
immunities as-are necessiry for the independent exerciseof their iunctions, and
sets out what those privileges and immunities are "in particular".
The question of the applicability of Article VI, Section 22, of the General
Convention 10 the case of Mr. Mazilu is one that is important no1 only to
ECOSOC and the Sub-Commission, but also to the United Nations, to al1of
ils subsidiary organsand 10the Member States of the United Nations. The ques-
tion arises in the context of the inability of Mr. Mazilu. a Romanian national
resident in Romania, Io fulfil his functions as an expert performing a mission
for the Sub-Commission due to the actions of the Government of Romania, a
State party to the General Convention.
The question thus touches upon sensitive issues regarding the limits of a
State's authority over ils nationals (or residents) who serve as experts for the
United ~attonsor 11ssubsidi~r) organa. 1hr Unitcd Statrh brlirirs il13rArticle
VI. Section 22, appliel to the case of Ir 3lazilu and obltgaies Romania t<ipcr-
mit soiiimunicîtions betueen hlr. \lazilu and the Unitcd Kation, and to allow
Mr. Mazilu to perform his mission as a special rapporteur for the Sub-
Commission which, as the record in this case reflects, requires that he be permit-
ted to travel to Geneva.210 PRrVaEOES AND QIldITNlTaS OF THE UNITED NATIONS
of its Statute to render an advisory opinion on the question presented to if by
ECOSOC'.
B. The Court's Discretion
TheCourt has repearedly stared thar. alrhough its power IO give advisory opi-
nions under Article 65 of its Stature is discretionary. only compelling reasons
would justify refusa1 of such a requestl. This request for an advisoryopinion,
the first ever by ECOSOC, presents the Court with no compelling reason Io
refuse the reauest. Indeed. the humanitarian concerns underlying the reauest,
a, uell as the-necessity forthe United Nation, to ensure that ils experts réceive
the privilegehand immuniiies to which they are entitled. provide the Court with
strong grounds to render the requested advisory opinion, and to render it on a
priority basis in accordance with ECOSOC resolution 1989/75.
A. Appointment of Dumifru Mozilu os Speciol Rapporteur of the
Sub-Commission
Dumitru Mazilu was elected in 1984 by the Commission Io serve as one of
the 26 members of the Suh-Commission until 31 December 1986'. Durina the
second year of his term of office, the Sub-Commission adopted a resol;tion
1985/12 appointing Mr. Mazilu as a special rapporteur on human rights and
youth, andrequested him
"to prepare a report on human rights and youth, analysing the effortsand
measures for securing the implementation and enjoyment of human rights
by youth, particularly the right to life, education and work, and to submit
il Io the Sub-Commission at its thirty-ninth [1987] session".
The Sub-Commission did no1 mcrt in 1986 due Io financial constra~nrs. On
6 Februiiry 1987,ECOSOC dccided at iis 19x7Organiziitional Session to cxtend
' Section 30of the General Conventionprovidesfor the referral of disputesbetween
the UnitedNations anda MemberState to the Courtfor an advisaryopinionand that
"the opinionof the Court shall be acceptedas decisiveby the parties". Romaniahas
entereda reservatianto the General Conventionindicatingthatidoesnot consideritself
boundby the provisionsof Section 30. In the view ofthe UnitedStates,that reservation
doesnot deprivethe Court of jurisdictionto givean advisory opinionin responsetoa
requestfromECOSOCpursuanttoArticle96of the Charter.SeeMemorandumfromthe
Legal Counsel, United Nations, to the Under-SecretaryGeneral for Human Rights,
UnitedNations, 30August1988,entitled "Request forLegalOpinion on the Reservation
made by Romaniawith respectto Section 30 of the Conventionon the Privilegesand
Immunitiesof the UnitedNations".
LegalConsequencefs or Stolesof theConrinuedPresenco ef SoufhAfrim inNomibio
Opinion, I.C.J. Reporls 1971p. 16,at p.i27;CertainExpensesof the UniredNalionsry
(Arlicte17,paragruph2, of lheChorlerl,AdvisoryOpinion, 1C.3. Reporls 1962,p. 151,
a1 p. 155; Judgmenlsof rheAdmkisrroriveTribun01 of rheIL0 uponComploinlsMade
AgoinsrUnesco,Advisory Opinion.I.C.J. Reporls 1956. p. 77,at pp. 85-86.
'Commission onHumanRights, Report on the FortiethSession(6February-16March
1984).pp. 24-25.supra. WRlTTEN STATEMENT OF THE UNITED STATES 211
the term of office of the current members of the Sub-Commission, including
Mr. Mazilu. for one vear6.
hlr.~aziiu did noi ippear at the ihirty-ninih (1987)Sub-Commission session.
The Governmrnr of Romania informed ihe Sub.Commir,ion ihat Mr. hlazilu
had suffered a heart attack and that he would not he able to oarticinate in the
proceedings. In ihr absence of hlr. Mazilu. and uirh due knoi~ledge~f ihr Pdcr
ihat his rerm uas io chpire on 31 December 1987.ihe Sub-Commi\hion adopid
desision 19871112on 4 Seorember 1987. bv ivhiih itdefcrrcd uniil 11sforrieth
(1988)session sonslderaiion of rhe agenda ;cm undzr uhish Mr. \larilu uac IO
have presented his repori on human riphi, and youth. The Sub-Comn~ission
also included on its orovisional agenda for its fortieth session a reference to
Mr. Mazilu's report, and included that report on a list of studies under prepara-
lion hy members of the Sub-Conimission to be suhmitted at the fortieth
session.
B. Actions by the Governmentof Romania to PreventDumitru Mazilu from
Fulfilling His Dulies as SpecialRapporteur
At the Februarv-March 1988session of the Commission, the Government of
Romania did noinominîie Mr. Ma?.ilufor re-eleciion io the Sub-Commission,
bui insiead nominatçd Ion Diaconu, who uas elected. Shorily alter his election.
Mr. Diaconu oresented Io the Chairman of the Sub-Commission a report on
human rights and youth. The United Nations Secretariat refused to circulate
this report, however, on grounds that Mr. Diaconu's election to the Sub-
Commission had no bearing on the continuing appointment of Mr. Mazilu as
the Special Rapporteur charged with preparing and presenting the report on
human rights and youth'.
In Avril and Mav 1988. Mr. Mazilu transmitted ta the United Nations
Secretariat in Geneva a preliminary draft of his report on human rights and
youth, and indicated that he wished to come to Geneva in August to present his
finalized reuort at the fortieth session of the Sub-Commission.At the beonnine.
of its fortieth session, the Sub-Commission invited al1its special rapporteurs,-
including Mr. Mazilu, to attend.
In a letter dated II August 1988, delivered to the Chairman of the Sub-
Commission by a personal intermediary, Mr. Mazilu described his situation as
follows:
"1 would like to inform you that 1am ready to come to the present ses-
sion of the ~uh-commissiin any lime. 1haveno personal problems which
can prevent me to come Io Gerieva in order to finalize and to submit my
report to the Sub-Commission.
There is only one official problem: 1 need the approval of my
authorities, which since 5 May '86 persistently bave refusedme permission
Io come Io Geneva.
' ECOSOCdecision1987/102.
' SeeMemorandurnof 23 August1988fromtheUnitedNationsOfficeofLegalAffairs
to the Director-General.United NationsOffice at Genevaentiiled. 'Questionof the
applicabiliiyof the Conicniioon the Privilege,and Immuniricsof the UniicdNaiionr
io ihr situniiono>Ir. Dumitruhfalilu ~harged by ihr Sub-Commi5sion on the Prcrcn-
iion of Discriminsrionand Protsciiunof .Uinoriiir<in11srcsoluiion1985t12 wiih the
prcparaiionof a reporion human right, and yo~ih".p. 83.~upra.212 PRNILEOES AND IMMUNlTlES OF THE UNITED NATIONS
Dear MI. Chairman, Dear Colleagues and Friends,
Please inform the Romanian authorities and their special expert to the
Sub-Commission that to prepare and to submit a report on human rights
and youth is an important international task, but in no case a political
crime.
In conformity with the provisions of the UN'Charter, the pertinent
resolutions of the General Assembly, of the Economic and Social Council
and the Commission on Human Rights and its Sub-Commission, every
Member State has the duty to facilitate the work of a United Nations
special rapporteur and not to prevent it.
Consequently, please ask the Romanian authorities to put an end to the
repressive measures and police terror against my family.
1 am determined to do everything possible to fulfil to the best of my
ability my task as a UN special rapporteur on human rights and youth.
It is my firm conviction that this will serve the noble cause of human
rights in Our complex and contradictory world.
So help me Cod."
The Government of Romania, however, did not permit Mr. Mazilu to appear
at the fortieth session of the Sub-Commission. In light of his absence, the
Sub-Commission adopted decision 1988/102 on 15 August 1988, by which it
requested the United Nations Secretary-General
"to establish contact with the Government of Romania and to hring to the
Government's attention the Sub-Commission's urrent ueed to establish
personal contact with its Special Rapporteur, MI. ~imitru Mazilu, and to
convey the request that the Government assist in locating Mr. Mazilu and
facilitate a visit to him by a member of the Sub-Commission and the
Secretariat to help him in the completion of his study onman rights and
youth, if he so wishes".
In response to this decision, the Government of Romania transmitted the
following communication to the Suh-Commission on 17 August 1988:
"Slr. Slalilu had been IIIior some timc and had rcrircd ironi ilic Foreign
hlinisiry. uho had so informcd the Commi,sion aiid Suh-Conimissiun in
Geneva. He was thus unable to oroceed with the orenaration of the reoort
on human rights and youth. ~he Government hid "ot presented himas a
candidate for re-election to the Sub-Commission. The Secretariat had no
juridical basis to intervene in a matter hetween a citizen and his Govern-
ment. Moreover, there was no basis for any form of investigation in
Bucharest, which would constitute interference in interna1 affairs. The
Romanian Government rejected [sic ]e request to allow a visit to MI.
Mazilu by a member of the Sub-Commission and the Secretariat for the
reasons given above."
Two days later, MI. Mazilu wrote a letter to Jan Martenson, Director-General
of the United Nations Office at Geneva, in which he stated, "1 would like to
inform you that 1 am ready to come any time to Geneva to submit my report".
In the opinion of 23 August 1988, requested hy the Sub-Commission, the
United Nations Office of Legal Affairs issued an opinion concerning the
privilegesand immunities to which Mr. Mazilu isentitled as a special rapporteur
of the Sub-Commission. In particular, this opinion concluded that: WRITTEN STATBMENT OF THE UNITED STATES 213
"hla~ilii appcar.,ti,Iinie3 \:iliJ s>signmeni froiii ihc Suh-Coniniijriun
and, tchen iitlrking or ~lticmpritigIo iio<>IIthal î,,ignnictii. is rhcrcfairc
~erlurniinr i 13tLor mi,\i<~tiior the I:niicd Satiun,. Hc sliould ihu\ hc
ionsideredan expert on a mission for the United Nations within the mean-
ing of Article VI. Romania became a party to the General Convention on
8 July 1956without any reservation to Article VI. Accordingly, Romania
must accord to Mazilu privileges and immunities necessary for the inde-
pendent exercise of his functions during the period of his assignment,
including lime spent on journeys in connection with his mission. He is also
to be accorded immunity from legal process even after completion of his
assignment."
On 1September 1988,the Sub-Commission adopted resolution 1988/37 asser-
ting that Mr. Mazilu, "in his continuing capacity of Special Rapporteur", con-
tinued to enjoy the privileges and immunities accorded under Article VI, and
urging the Government of Romania to allow Mr. Mazilu to complete and pres-
ent his reDort on human riehts and vouth to the Sub-Commission. In the event
~ ~ ~ ~ ~ ~
that the ~overnment of Komania iailed to do so, the resolution invited the
Commission to urge ECOSOC to request an advisorv o~inion from the Court
on the applicabilit; of the relevant provisions of the Genera~Convention to the
present case.
The Government of Romania did no1 comply with this request of the Sub-
Commission. On 6 March 1989, the Commission adopted resolution 1989/37,
in which it concurred with the view expressed by the Sub-Commission in its
resolution 1988/37 that. in his continuine -.oacitv a. a soecial raono.t.ur.
hlr. hlil~il~enjoys privilcgc, and immuniiie> ac~urdeJ uiidsr Ariiçlr. \'1of ihe
CiciicralCon\,cniiuii nexiiar) fur ilie pcri<~rmanccoi hi, d~tic,r. llle resi~lutiun
also rc;omiiiended thai tCOSOC adtint a resoliiiioii :oncliidine [liai 3 dif-
ference has arisen between the United ~ations and the Governmenïof Romania
and requesting an advisory opinion from the Court.
The Government of Romania continue* to prevent MI. Mazilu from fulfilling
his functions as a special rapporteur. On 24 May 1989, ECOSOC acted iipon
this recommendation of the Commission and adopted resolution l989/75
requesting the advisory opinion presently at issue.
APPLICABILITY OF ARTICLEVI, SECTION22,
OF THE CONVENTIO ONN THE PRIVILEGE ASND IMMUNIT~ES
OF THE ~JNITED NATIONS
A. As a Special Rapporteur of the Sub-commission Dumitru Mazilu is an
Expert on a Missionfor the UnitedNarions within the Meoningof Article VI
The first issue arising in regard to the applicability of Article VI, Section 22,
in the case of Mr. Mazilu is whether Mr. Mazilu is an expert on a mission for
the United Nations within the meanine of Article VI of the Ge~ ~ ~ ~~ ~ ~ ~on.
The General Convention without question applies to the Sub-Commission, a
subsidiary organ of ECOSOC. ECOSOC, acting under authoritv aranted to
it by .Article68 of the Charters, createdthe C<mmission on man Rights
Article68 ofthe Charter providesthal ECOSOC
"shall set upcommissionsin economic andsocial fieldsand for the promotionof
humanrights, and suchother commissionsas maybe requiredfor the performance
of its functions".214 PRMLEOES AND IMMUNITlES OF THE UNITED NATIONS
and authorized the Commission to establish the Sub-Commisçion'. The Sub-
Commission is thus a body established by virtue of powers conferred by the
Charter.
Article V of the General Convention applies to individuals specified by the
United Nations Secretary-General, usually members of the Secretariat who
reoresent the United Nations in their official caoacity. ArticleVI, by cantrast,
m3y he read to apply 10 individuals \rho have been appointçd or elkted under
the auspices of the United Nations or one of iisorgans 10perforrn a specificmis.
sion, but who serve in their personal capacity and do not officially represent a
Member State of the United Nations.
Special rapporteurs appointed by the Sub-Commission are similarly experts
on missions for the United Nations. The Sub-Commission appoints individuals
to be special rapporteurs to monitor worldwide cornpliance with human rights
standards in that area or to collect data and produce reports on specialized
topics within that area. While serving as Sub-Commission special rapporteurs,
these individuals must act in their personal capacity, not as representatives of
Governments.
As a member of the Sub-Commission. Mr. Mazilu was an "exoert on a mis-
sion for the United Nations" within the meaning of Article VI of the General
Convention by virtue of holding that ~ffice'~.The orovisions of Article VI also
applied to ~r~.Mazilu from the time the Sub-~ommission appointed him as a
special rapporteur on the topic of human rights and youth in 1985. Although
the term of Mr. Mazilu as member of the Sub-Commission exoired on
31 Deccmber 1987. hi\ appointment as Special Rapporteur continued aher ihai
date. The decision of ihe Sub-Commission in September 1987exiending con-
sideration of Mr. Mazilu'sreport uniil the Sub-Commission's 1988session. with
full knowledge thai his term tiould expire before ihai rime.effesiively sontinued
Mr. Mazilu's appointment as Special Rapporteur, and iherefore as an expert on
a mission for theUnited Nations, beyond the expiration of his term as a member
of the Sub-Commission,
While some types of missions by their very nature are complete when a term
of aooointment exoires. this is not the case in connection with missions involv-
. .
ing ihe completion and submission of reports. In such cases, the expert involved
may need additional time to cornplete the assignment, and the agency involved
may - as in this instance- require the expert's participation in~theconsidera-
tion of the report when it is completed.
In short, MF.Mazilu became an expert on a mission for the United Nations
within the meaning of Article VI from the beginnina of his term of office as a
member of the SUL-~ommissionin 1984 ~i;siaiu;as an expert on a mission
for the United Nations continues by virtue of hls ongoing assignment as Special
Rapporteur for the Sub-Commission on human rights and youth, which the
Sub-Commission concluded was necessary in order to permit him to complete
and present the report he was assigned.
' ECOSOCresolution9 (11)(1946).
" Memorandumof 23August1988fromthe UnitedNationsOfficeof LegalAffairs
ta Director-Gencral.United NationsOffice at Gencva. supro note 7. alp. 82, supra
("membersof the Sub-Commissiond ,uringtheirterrnrof office,are accorded thelcgal
statusof expertson missionforthe UnitedNationswithinthe meaningof Article VI of
the 1946Convention"). WR~TTEN STATEMENT OF THE U~ED STATES 215
B. The Provisions of Article VIApply as between Rornania and Mr. Mazilu,
a Romanian Resident National
Traditionally, the suhjects of international law are States. The relationship
between a State and its nationals has been viewed as an incident of the
sovereie-.v of States. and accordinel-.outside the scooe of international law.
Certain exceptions, however, have been recognized, for example, in the area of
human riahts. An exception of particular relevance to this case has developed
~x~ ~ ~ ~~~,~~ ~ ~ ~a- ~ - ~ ~e consent of States and relates to the relationshio
between a Staie and iis naiionals employed by international organizaiions. ln
ihc viewof thc United States. derogations of the sovereigniy of the Siate over
such nationals must be construed with appropriate respect for the sovereign
rights of the State concerned as wellas the objective of the fulfilment of the pur-
ooses of international oreanizations.
An analysis of ihe termi of Article VI. Sesiion 22. of itr hisiory and the prac-
rice under ihe General Convcniion dcmon~irare ihat it<provi~ionsspecifically
oblieate Romania. in the circumstances of this case. to permit the United
~aik and Mr Mazilu iocommunicate regarding \Ir Mazilu's mission for the
Sub-Commi$cionand ro allow Mr Ma~iluio iravel to Geneva 10complete that
mission.
The General Convention was intended to implement Article 105 of the
Charter, which provides that officials of the Organization shall enjoy such
privileges and iimunities as are necessary for the independent exerciseof their
functions in connection with the Organization". Article VI, Section 22, adds to
those individuals who enjoy privileges and immunities necessary for the
independent exercise of their functions
"experts (other than officials coming within the scope of Article V) ...
during the period of their missions, including time spent on journeys in
connection with their missions".
Section 22 enumerates the following specific privilegesand immunities to which
such experts are entitled:
"/, , immunitv from oersonal arrest or detention and from seizure of
their personal baggage;
(b) in respect of words spoken or written and acts done hy them in the
course of the performance of their mission, immunity from legal
process of every kind. This immunity from legal process shall con-
'' Whilethe draftersofArticle105intendedto ensur eheCreefunctioningoftheorgans
of the UnitedNations andthe independentexerciseof the functions and dutiesof their
officials,theyintendedthat theGeneral Assembly wouldclarifyand define theprivileges
and immunitiesnecessaryto achievethat purpose.Article105specificallyprovidesthat
the GeneralAssembly
"maymake recommendationw s itha viewto determiningthedetailsof the applica-
tionof. ..this Articleor mayproposea conventionto theMembersof theUnited
Nationsfor thispurpose".
Thr PrcparatoryCornmls,ion. inappruiliigAriirle105.re.omiiieiidcdihaitheCicneral
A~~rmbly lakesu2hactional iis iir\,r.J,ionandpro\idcdin ilsKeporinoionl) ils\iudy
on arivilreerand Imrnuniilcr.but alro a drafi con~cnilonfor ihr considcraiionuf the
Geiera~&embly. That drafi servedas the basisof the GeneralConvention.Reporr of
the PreparaloryCommissionof the UnitedNarions.London, 1945,Chap. VIII.216 PRIVLLEOES AND IMMUNITLÈS OF THE UNITED NATIONS
iinue Io be accorded noiuiihstanding thai the persi~nscunceriicd are
rio longer cmploycd on missions ior the United Nations;
(c) inviolability for al1papers and documents;
(d) for the purpose of their communications with the United Nations,
the right to use codes and to receive papers or correspondence hy
courier or in sealed bags;
(e) the same facilities in respect of currency or exchange restrictions as
are accorded to representatives of foreign governments on tem-
porary official missions; and
/fl the same immunities and facilities in respect of their personal hag-
gage as are accorded to diplomatic envoys."
The obligation to accord the soecified ~rivileees and immunities is unaua-
lified. ~ciiGn 22 makca no di>tinc;ion beriren ih; privilegesand iniiiiuiiitiei io
be ascorded experts u ho are tiatiotials ol a State part) and ihose to bc accùrded
to other exoerts. Moreover. it is clear that where the drafters of the General
~onventio" intended to make such a distinction, they did so. Section 15of the
General Convention makes inapplicable "as between a representative and the
authorities of the State of which he is a national" the orivile-es and immunities
according to representatives of Members. Section 22 contains no comparable
provision.
A textual analysis of the General Convention therefore demonstrates that the
obligation of States parties to the Convention Io accord the privileges and
immunities under Article VI, Section 22, applies to their nationals who are
exDerts on missions for the United Nations. The intention to make such ~ ~ ~ ~ ~~ ~ ~
privileges and immunities applicable in that situation is also reflected in the
history of the Convention. With resoect to the immunity of officials of the
United Nations from suit or legal bocess, the United Nations Preparatory
Commission stated in its study of privileges and immunities:
"While it will clearlv be necessarv that al1officials. whatever their rank.
should be granted imkunity from iegal process in respect of acts done in
the course of their official duties, whether inthecountryof whichtheyare
nationalsor elsewhere, it is by no means necessary that al1officials should
have diplomatic immunity . ..""
The subseauent oracticeof the oarties to the General Conventinn alsn s~-~~ ~ ~ ~ - - -~~
ports this vie&. ~tleast eight ~tatés,including the United States, have becoke
parties to the General Convention subiect to reservations restrictine or ore-. .
sluding ihr appli~ation of certain priiifeges aiid iiiimuniiic\ 3, hciiir.cn tho~
States and ihcir nalional, '.The rerervation oi ille Uiiiied Siaie,, for rxamplc.
provides that,
"Paragraph (b) of section 18 regarding immunity from taxation and
paragraph (c) of section 18 regarding immunity from national service
obligations shall not apply with respect to United States nationals and
aliens admitted to permanent residence."
iizporr o/thc Prrpdruiur! Cuti,m,,,,i>n uj the L'tiilrd .Vor,bn,. riioir.II.p 62
' Ont nt ll>oscSiale>wb~cq~~c~ ~ iIIU~C NI>dlcc~cr~di~.m Rdntmu, Stde p4rry
Io ihc CirneralCi>n\rniio~i .a, enier:u iio;omp,i,ble reier\,aiioi,218 PRIVILEOES AND MMUNIT~S OP T= UNITED NA~ONS
porteur of the Sub-Commission on Prevention of Discrimination and Protec-
tion of Minorities. Pursuant to Article VI, Section 22, the Government of
Romania is obligated to permit communications between MI. Mazilu and the
United Nations and to allow MI. Mazilu to travel to Geneva to perform his mis-
sion for the Sub-Commission. WRITTEN STATEMENT OF THE GOVERNMENT OF
CANADA
Pursuant to the orovisions of Article (2)of the Statute of the International
Court of Justice, and inresponsc to the in;iiarion addressed io the Government
of Canada by rhe Regisrrar of the Intcrnational Court of Justice in his leiier of
14June 1989.the Government of Canada wishes to submit certain eeneral com-
ments on ihelegnl que$tion of the applisabiliiy of Ariiclc VI, section 22. of the
Conveniion on the Privilegesand lmmunities of ihe Uniicd Naiions in the case
of Mr. Dumitru Mazilu. as Spccial Rapporieur of the Sub-Commission on
Prrvenrion of Discrimination and Protection of Minoririer.
The Ciovcrnmeni of Canada considers a determinaiion of ihis legal question
bv the Court. in resoonse ta a reauest for an advisorv opinion bi the United
Nations F.co"omir and Social ~oUncil, to be clearly within the jukdiciion of
the Couri. and an appropriaie exerciseof thai jurisdictton. notwiih\ianding the
Romanian reservatsn to the Convention on the Privileees and lmmunities of
the United Nations, or statements of the Government ofthe Socialist Republic
of Romania to the effect that the Convention is not applicable.
The Go\ernment of the Socialist Republicof Romania. as a party to the Con-
vention on ihe Privileges and Immuniites of the United Nations. is under an
obliaation ta resoect the orivileees and immunities of exoerts nerformina mis-
sions for the~niicd ~aiions. hi Uniied Nations cono om andsSocial~ouncil,
in ils resolution 1989175,accepted ihe viewthat Mr. hlazilu wacan expcrt acting
on behalf of the United Nations and entitled to the immuniiics in Article VI.
Scction 22, of ihe above Convention. Such an expert acis for the Unitearion;
in an individual capaciry and is in no waya represeniativc of any State. In order
to pronerlv fulfil his function. an exoert must be able to act with independence
and impariialiiy. The immuniiies liried in Article VI. Section 22, exisl in order
io ensure that an expert can fulfil his function in this manner. Ir is inappropriate
for a State to our~ort to determine the exoert status of an individual under the
above convention by means of an arbitrary and unilateral decision. Further-
more, without access to Mr. Mazilu, the United Nations is incapable of deter-
mining whether the privileges and immunities of Mr. Mazilu have been, or are
..~~.-.hreached~
Noting thal Ariiclc VI. Section 23. of the Convcniion on ihe Privileges and
Immuniiies of the United Nations itaies ihar the privilegcs and immunities of
experts described inrticlc VI, Seciion 22. "aregranted to experts in the intrrest
of the United Nations". the Governmeni of Canada considers iifundamental
io the effective functioning of the Uniied Nations ihat the Organizaiion,
through ils Secretariat not be arbiirarily denied access ta experts pcrforming
misrions on 11sbehalf. Bydenying such access, a State frustrates ihc objecr and
purpose of the Convention hy ~iïhholdin~ information necessary to determine
the existence ofa hreach of that Convention. ADDITIONAL COMMENTS OFTHE GOVERNMENT
OF THE UNITED STATES OF AMERICA
On 31 July 1989,in response to an Order of the International Court of Justice
("Court") dated 14June 1989, the Government of the United States ("United
States") submitted a written statement on the subject of this request by the
United Nations Economic and Social Council ("ECOSOC") for an advisory
opinion from the Court. The Governments of Canada, the Federal Republic of
Germany, and Romania, as wellas the Secretary-General of the United Nations,
also submitted written statements in response Io the Order of 14 June.
Bv the same Order. the Court fixed a time-limit of 31 Aueust 1989. within
which States and organizations having presented written statements ma; submit
comments on other written statements. By this submission, the United States
respectfully submits commentson the written statementssubmitted to the Court
on 31July 1989.
The United States disagrees withthe assertions contained in the written state-
ment submitted by the Government of Romania ("Romania") that the Court is
without jurisdiction to render the requested advisory opinion as a consequence
of the reservation that Romania entered in regard Io Section 30of the Conven-
tion on the Privileges and lmmunities of the United Nations ("General Con-
vention"), and that Article VI, Section 22, of the Convention does not
apply Io Mr. Mazilu because he is no1 an expert on a mission for the United
Nations.
In regard to the Court's jurisdiction, the United States agrees with the
areuments nresented in the written statement submitted bv the Secretarv-
Gineral of ihe United Nations ("United Nations") that the ~omanian reserva-
lion is not applicable to this request for an advisory opinion. ECOSOC did not
reauest this advisorv oninion under Section 30 of the General Convention. but
raiher pursuant Io ks Independent authority deriving from the Charter of the
United Nations ("Charter") and General Assemblyresolution 89(1).The United
States maintains, moreover, that even were this request to have been made
under Section 30, the Court would have jurisdiction since the Romanian reser-
vation does not address requests for advisory opinions.
The areuments oresented bv Romania that Mr. Mazilu is not an exoert on a
mission for the ~nited ~ations for purposes of Article VI, Section i2, of the
Convention are supported neither by the terms of that Article as they have been
construed in the fictice of the United Nations, nor by the facts of this case.
Moreover, the information submitted Io the Court by the United Nations pur-
suant Io Article 65 of the Statute of the Court indicates that Romania has
nrevented MI. Mazilu from travelline to Geneva to oerform his mission for the
~nited Nations by detaining him in-~omania and iuggests that Romania has
prevented Mr. Mazilu and the United Nations from communicating regard~ng ~
his mission.
For these reasons, the United Statesmaintains that the Court has jurisdiction
Io render the requested advisory opinion and the provisions of Article VI, Sec-
tion 22, of the General Convention apply in the case of MI. Mazilu. ADDITIONAL COMMENTS OF THE UNITED STATES 221
In its previous written statement, the United States demonstrated that the
Court has jurisdiction under Article 65, paragraph 1, of its Statute IO render an
advisorv opinion on the auestion oresented. based uoon the exoress authoriza-
tion gran[& by the Gener31Asçe&bly 10 tCOSO<: under ~rticic 96. paragraph
2. of the Chxrter to rcquest su~liadvisor) opinioiis . The \tatcnicnr uf Romanta
argue\ thai Sc~tion 30requirer ihat al1rçquerts for adsiror). upinions pcrtaining
to the General Convention hr made undcr the authority of Section 30and that.
as a rerult of Roniania'q re,eri.ation. no requcst for an opinion in this niattcr
could be made without Rornania's consent. Romania is incorrect both as to
the authority of ECOSOC to request an advisory opinion independent of the
reqnirements of Seclion 30 ofthe General Convention and as tothe legal effect
of Rornania's reservation in regard to Section 30.
A. The Court Has Jurisdicrion Io Render This Advisory Opinion under Arricle
96 of the Charter and Unired Nations General Assembly Resolution 89 (I)
Romania assens that its reservation strips the Court of jurisdiction to render
the advisory opinion in question without the consent of Romania, and that
Rornania has not granFd such consent. In this respect, Rornania argues that,
were the Court to render the advisory opinion, it would "disturb the unity" of
the General Convention by circumventing the dispute settlernent provisions of
that Conventioni.
Section 30 of the General Convention provides that:
"A11differences arising out of the interpretation or application of the
present convention shall be referred Io the International Court of Justice,
unless in any case it is agreed by the parties Io have recourse to another
mode of settlement. If a difference arises between the United Nations on
the one hand and a Member on the other hand, a request shall be made
for an advisory opinion on any legal question involved in accordance with
Article 96 of the Charter and Article 65 of the Statute of the Court. The
opinion given by the Court sliall be accepted as decisive by the parties."
Resolution 1989/75, by which ECOSOC requested this advisory opinion,
does not rely upon Section 30as the authority for its request, but relies entirely
on Article 96, paragraph 2, of the Charter. Article 96, paragraph 2, provides
that :
"Other organs of the United Nations and specialized agencies, which
may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the
scope of their activities."
WrittenStatementsof theGovernmentof the UnitedStatesof America("Siaiement
of the UnitedStates").pp. 209-210,supra.In that statement,theUnitedStatesalsonoted
that the reservationof Romaniato Section30of the General Conventiondoesnot deprive
theCourt ofjurisdiction to renderrhirîdvirory opinion.Srarementof theUnitedStates.
p. 210, fn.3, supro.
' \fcmoraiidiimofiheGo\crnmrnt ofKr>mania rclaiinsin ihr Kequcriforan AJ~irury
Opiniun iranmiiird iu ihr IniernaxionalCouri of lusi.chy kiriuc01rewluiion 1989175
ut the 1i;oiiomisand So~ialCounril. daird 24 \Isy 19R9('Si3icnicni of Romania").222 PRNILECES AND IMMUNITIES OF THE UNITED NATIONS
The General Assembly, pursuant to that Article, authorized ECOSOC to
reouest advisorv ooinions of the Court on le-.l auestions arisine within the
scope of the aciiviles of the Council'. Section 30 of the General Convention,
which also orovides authority to reauest advisory opinions of the Court, does
no1 render inoperative this independent authorization to request advisory opi-
nions pursuant to Article 96 of the Charter'.
The advisory opinion issued by the Court with respect to Reservafions fo the
Genocide Convention full, su..orts this conclusion. In that case. the General
Assembly of the United Nations requested the Court to respond to'several ques-
tions concerning the effect of reservations to that Convention and of objections
to those reservations. As a oreliminarv matter. the Court first considered
whether Article IX of that chvention 1 which also calls for submission of
disputes to the Court - orevented the Court from rendering the advisory opin-
ioi sought by the Generd Assembly :
"The existenceof a procedure for the settlement of disputes, such asthat
provided by Article IX, does not in itself exclude the Court's advisory
iurisdiction. for Article 96 of the Charter confers uoon the General
~ssembly and the SecurityCouncil in general terms the right to request this
Court to give an Advisory Opinion 'on any legal questions'" .'
ECOSOC therefore has the authority to reauest an advisory ooinion under
both the General Convention and under the charter, although oAlyunder the
Convention could the resulting advisory opinion be "decisive". Accordingly, the
mere existence of Section 30 does not deorive the Court of iurisdictionio ren-
der this advisory opinion pursuant to ~riicle 96 of the ~liarter and General
Assembly rcsolurion 89 (1).Itneccssarily follows that Romania by ils unilateral
action in connecrion with the Convention could no1 orcvcni ECOSOC from
requesting an advisory opinion in the exercise of ils independent authority to
make such a request pursuant to Article 96 of the Charter.
B. Rornania's Reservation to Section 30Does Not Affect the Jurisdicfion of the
Court to Render This Advisory Opinion
The reservation entered by Romania to Section 30of the General Convention
does not address requcsts for advisory opinions, only the erfeci to be given such
opinions. The reservation provides that:
"The Romanian Peoole's Reoublic does not consider itself bound bv the
terms of seclion 30 of'the onv vent w hich provide for the compuisory
jurisdiction of the International Court of Justice in differences arising out
of the interoretation or aoolication of the Convention: with resoect to the
competenc; of the lnternaiional Couti in such differences, the.~omanian
People's Republic iakes the view thai, for the purpose of ihc submission
of anv disoute whatsoever to the Court for a riline-.the consent of al1the
parties toihe dispute is required in every individual case. This reservation
is e~ual~y ~ ~licable to the provisions contained in the said section which
stipulate that the advisory opinion of the lnternational Court of Justice is
to be accepted as decisive."
-
'G.A. res.89 (1)(1946).
Statementof the UnitedStates. pp.216-217,supro.
'Resemotiom 10the Conventionon thePreventionand Punishmenrof the Crime of
Genonde,Advisory Opinion,I.C.J. Reports1951, p.15.at p. 20.224 PRNUECES AND MMUNITIES OF THE UNITED NATIONS
Neither the Charter nor the General Convention, however, establishes the
existence of a dispute as a prereauisite to a request for an advisory opinion.
Article 96.paragaph 2. of ihe charter simply aurhorizes requests rothc Court
for advisory opinions on legalquestions ;Ariiclc 65.paragraph 1.of the Statute
of the Court gives the Court jurisdiction Io render such opinions. As a result,
the Court has iurisdiction to render the oninion reauested bv ECOSOC nur-
suant IO ~rticlé 96 of thc Charter whether'or not a'disputc ixirii.
Section 30of the General Con\,ention does not refer to "disputes" ciihcr. but
insiead provides that. if a "diifcrcnce" arise\ beiween the United Nation3 and
one of itsMembcrs, a rcqueri ,hall be made IO the Couri for an advisory opin-
ion. In this regard, whilc Romania and the United Nations may share the same
general view tiat the privileges and immunities provided expe;ts under Article
VI, Section 22, are functional in character, they manifestly disagree over the
aonlication of Article VI in the soecific case of MI. Mazilu as a soecial rao-
porteur. Romania appears to clai; that this is merely "a difference of opinion"
with respect to the "factual elements" of Mr. Mazilu's situation. However, the
question of whether Mr. Mazilu is entitled to the orivileees and immunities set
iorth in Article VI, Section 22, is a legal one whiih tur;on an application of
that provision to the facts of this case. In any event, because ECOSOC has not
requested this advisory opinion under Section 30, the question of whether a
"dispute" existsdoes not arise evenunder Romania's construction of its reserva-
tion to that provision of the General Convention.
11.APPLICABILI TFYARTICLE VI, SECTION 22,OF THE GENERAC LONVENTIO NO
MR. MAZILU
In its initial statement, the United States demonstrated tha(1) the status of
Mr. Mazilu as a special rapporteur of the Sub-Commission has not terminated:
(2) in his continuing capaiity as a special rapporteur of the Sub-Commission,
Mr. Mazilu isan "expert on a mission for the United Nations" within the mean-
ing of Article VI of the General Convention; and (3) Article VI requires al1
States parties Io the General Convention, including Romania, to accord Io Mr.
Mazilu. as a special rapporteur, the privileges and immunities specified inArti-
cle VI, Section 22, of the General Conventions.
The written statements of the United Nations, Canada and the Federal
Republic of Germany, reach the same general conclusi~ns'~. Romania, how-
ever, disputes each of tbese ooints. arnuine, that: (1) Mr. Mazilu is no loneer
a ~~eciafrapporteur of the &b-~omm~ssioi; (2) that such special rapporte;rs
are not "experts"; and (3) even if Mr. Mazilu were such an expert, Romania
need not accord to him anv orivileaes and immunities due to the fact that he
isno1actually on any missionin ~omania. Romania is incorrect both as a mat-
ter of law and in regard to the application of the law to the circumstances of
this case.
A. The Slotus of Mr. Mazilu os o Speciol Rapporteur of the Sub-Commission
Has Nol Terminoted
Romania asserts that, due to serious health problems, Mr. Mazilu "was
withdrawn from office as being unfit for service" at his own request as of
' Siairmeniof the UiiitiJ SiaiCpp. 213-218.ritpro.
Staicrncnoi ihe UniitdSaiions.pp 139-193st,pro;Siaicrnrnof Canada. p.219.
supra: Siatcmeniof ihc l:cdcrnlKcpuhlicofCicrrnany.p.207. mpro. ADDITIONAL COMMENTS OF THE UNITED STATES 225
I Dece~~~~-~ ~7. In sunnor7 -~ this assertion. R~~an~a~.elies on an oninion
issued hy one of its State medical commissions in 1987, which was reafirmed
in 1988,on which the retirement of Mr. Mazilu is purportedly based. Roniania
concludes that "Romanian law does not authorizë the empioyer or any other
State body to fail to take account of doctors' opinions or to override those opi-
nions"". This argument fails on two grounds.
First, the status of Mr. Mazilu as a special rapporteur is wholly unrelated to
his status as an employee of the Government of Romania. As a special rap-
porteur, Mr. Mazilu is required to serve in his personal capacity, not at the
discretion of his Government. Hence. even if a Romanian medical commission
determined that Mr. Mazilu must resign for health reasons from his position in
the Romanian Government", this determination would not directly hear on his
appointment as a ,nerial rapporteur Forihe Sub.Comrnisrion. lnsteid, an).deci-
sion to terminate .VI. ,Vazilu'sappointment as a spe~ialrapporteur uould ha\e
to be made hy the competent organs of the United Nations.
Second, the information hefore the Court demonstrates that Mr. Mazilu
has not sought termination of his appointment as a special rapporteur. The
documents ~rovided to the Court bs the United Nations pursuant to Article 65
of the ~taiute establish that ~r..~azilu has repeatedly notified the Suh-
Commission that he considers himself insufficiently good health to perform his
duties as a special rapporteur, and that he has every desire to complete his
assignment". In its initial statement,the United States cited two letters written
by Mr. Mazilu to the United Nations in August 1988in whichhe announced his
readiness to complete his assignment as a special rapporteur. In the first of these
letters, Mr. Mazilu made clear that the Government of Romania was preventing
him from doing so". The Statement of the United Nations cites these and
several more letters from Mr. Mazilu Io the same general effect".
In an). etent. the question of Alr. hlazilu's fitnesi to perform thcsc duties is
not one for Romania IO decide. \lr. Mazilu remain, ;in expert on a mission for
the United Nations. In the absence of a clear indication hy Mr. Mazilu that he
hac untlaterally terminated his status as an expert. only the sompetent organs
of the United Nattons are legallycompetent to takc such action. They ha\,e not
B. Special Rapporteurs of the Sub-Commission Are Experts onMissionsfor the
United Nations
Romania does not viewspecial rapporteurs as falling within the scope of Arti-
cle VI of the General Convention. Instead, Romania argues that:
"the Convention does not place rapporteurs, whose activities are occa-
sional. on the same footing as the experts who carry out missions for the
-nited Nations.
" Statementof Romania, p. 204, supra.
''Indeed,thereisstrongevidenceta believethat Mr.Maziludidnotrequest.muchless
consentto. his retirementfrom the RomanianGovernment.Dossiersubmitted by the
UnitedNations, 28 luly 1989 ("United NationsDossier"),document 96 (letterfromMr.
Maziluto Presidentof the UnitedNationsGeneralAssemblyand Chairmanof the Sub-
CommissionStatesthat "since 1 December 1987 1 have been forcedto retire from my
activityasminister-counselloarnd Headof LegalDepartmentin theMinistryof Foreign
Affairs").
" UnitedNationsDossier.documents 23. 31, 33. 34.
" Statementof the UnitedStates, pp. 211-214. supro.
" Statemeniof the United Nations, pp. 175. 180. supra: United NationsDossier.
documents 23, 31. 37, 92. 94. 96, inrerolia.226 PRIVILEOE AND IMMUNITlE OF THE UNITED NATIONS
The very term 'experts' is employed in'the Convention Io distinguish
those persons from 'officials' ofthe United Nations, who are engaged in
an activity of a permanent nature." ''
The United States aerees that the General Convention distineuishes between
"experts on missionsior the United Nations" and "official; of the United
Nations". The United States also agrees that the relationships of experts with
the Unite. Nat~~~~ ~ ~d to he lessnermanent than those enioved bv officials of
the Organization. These di\iinctioos. however. have no reie\:ance'to the ques-
tion of nhether special rapporteurs of the Sub-Commission should be classificd
as exoerts. This auestion mus1instead be decided on the basis of Article VI. An
anal& of ~rticie VI, including the practice of the United Nations under that
Article". demonstrates that special rapporteurs of the Sub-Commission are
experts within the meaning of~that ArticleL8.
The only ground on which Romania disputes this conclusion is that the
activities ofsnecial raoDorteurs are too "occasional". Nothina in the text of
Article VI provides a baks for excluding special rapporteurs frim the catcgory
of experts on this ground. Quite tu the conirary. the "occasional" character of
the activities oran expert isone of thc primary factors for distinguishing experts
from officials of the-~rganization.
C. As o Special Ropporteur, Mr. Mazilu 1s Entitled Io rhe Privileges and
Immunifies Specijed in Article VI, Section 22
In its written statement, Romania does not actually dispute that, if Mr.
Mazilu were still a special rapporteur, and were special rapporteurs experts
within the meanine o- Article VI. Romania mus1 accord to Mr. Mazilu the
privilegesand immunitizs iet forth in Section 22. Romania nevertheless implies
that 3lr. Marilu ncter acted in hiscap~city~as sspesial rapporteur whileresidinp
in Romania and that, as a result, Romania need never have accorded to him the
privileges and immunities in question".
The mission of Mr. Mazilu benan with his a~~ointment bv the Sub-
Commission as Special ~a~porteur-on Human ~ights and ~ouih in 1985.
Although Mr. Mazilu may no1 have been engaged in his mission continuously
from that time, the record demonstrates that ,(I) he has spent lime in Romania
researching and drafting his report; (2) both he and the United Nations have
sought to communicate with each other regarding the completion of hismission,
and have been prevented from doing so by Romania; and (3) he has been
prevented by Romania from travelling to Geneva to complete his mis~ion'~.
" Statementof Romania.p. 203.supro.
" Undercustomaryinternationallaw,referenceto thesubsequentpracticeof the par-
tiesispertinentto treatyinterpretation.SeeViennaConventionon the Lawof Treaties
betweenStatesand InternationalOrganirationsor belweenInternationalOrganizations,
Article31. which codifiescustomary internationallawon thispoint; 1. Sinclair,The
ViennaConvention onthe Law of Treories137(2nded., 1984).
''Statementof the United States, pp. 213-214,supro; Statementof the United
Nations, pp. 190-191,supro; Statementof Canada, p. 219,supra; Statementof the
FederalRepublicof Germany. p. 207,supro.
" Statementof Ramania,p. 203,supro ("lnso faras theexpert'sjourneyto carryout
themissionfor theUnitedNationshasno1begun.for reasonsentirelyunconnectedwith
hisactivitys an expert,thereisno legalbasisuponwhichto layclaimto privilegesand
immunities underthe Convention .. .").
" UnitedNations Dossier, document2s3, 31, 34,37, 38,inter olio. ADDITIONAL COMMENTS OF THE UNITED STATES 227
Hence. Mr. Mazilu has enaaaed or souaht to enaaae in activities in Romania
pertaining to his mission as a special rapporteur: 1; regard to such activities,
Romania must accord Mr. Mazilu the privileges and immunities that are to be
accorded to exoerts of the United ~ations under the terms of Article VI. Sec-
tion 22.
As the information provided to the Court by the United Nations demon-
strates, Romania refuses to grant Mr. Mazilu the necessary official authori-
zation to travel to Geneva to perfortn his mission for the United Nations. That
information indicates that Romania has physically detained Mr. Mazilu by
placing him under house arrest. III particular, document 96 of the United
Nations Dossier contains a letter fromMr. Mazilu to the President of the United
Nations General Assembly and the Chairman of the Sub-Commission. in which
he States that, "My authorities have refused me again the approval to go to
Geneva and have placed me under arrest at my home with a policeman in front
of mv door."" Such action bv Romania. in the circumstances of the instant
C&~.'wouldappear to violate Article VI, Section 22. subsection (0). The inlor-
mation provided to theCourt by the United Nation, al\o suggests that Romania
has prevented the United Nations and Mr. Mazilu from communicating regard-
ing his mission for the United Nations in violation of subsections(c)and (d) of
Article VI, Section 22lZ.
CONCLUS~ON
For these reasons. the United States reaffirms its view that the Court has
lurisdiction to rende; the adt,isory opinion rcquested by ECOSOCand that the
provisions of Article VI. Section22, of the General Convention apply in the case
of Mr. Dumitru Marilu in his sontinuinr-.aDacitv.as Soecial . .oorteur for the
Sub-Commission.
>' In other letters, Mr. Mazilurefers repeatedlyro his 'captivity". Seecg., United
NationsDossier,document94 ("ln spiteof mycaptivity and manyrepressivemeasures
against me andagainstmy family. 1 continueto waitand hope").
" The United NationsDossiercontainsinformation thatsuggestsRomaniamayhave
violated subsection(c)by seizingofficial papers and documenlssent by the United
Nationsto Mr. Mazilu.UnitedNationsIlossier.document96(letterfrom Mr.Maziluto
UnitedNations Secretary-GeneralndChairmanoftheSub-Comrnbsion.stating that'al1
my officialcorrespondencefrom the UN has been confiscatedby the Romaniansecret
y-..--",.
Similarly,the informationprovidedbytheUnited Nations demonstrates that amania
mayhaveaciedin violaiionofsubsection(dj byrefusingtoallowUnitedNationscouriers
from Genevato deliverpapersto Mr. Mailu and bypreventingMr. Mazilufromreceiv-
through personnelin the United Nations Information Centrein Bucharest. United
Nations Dossier, document 64 (summaryrecord of the Sub-Commissionmeeting of
17August 1988, in whichthe Under-Secretary-Generaflor Human Rightsdescribes the
refusalof Romaniatoallowa memberoftheUnitedNations SecretariatinGencvato visit
Mr. Marilu).Seealso UnitedNationsDossier.document 37 iletter from Mr.Maziluto
UnitedNations Under-Srrretaw-Generalfor Human Rights, stating that'my accessto
the UN Information Centrein Bucharestwas blocked by police"); Unitcd Nations
Dossier, documents31 and 39 (letters fromMr. Maziluto the same Under-Secretaw-
Generalstating,respectively,that "myforeigncorrespondenceandforeigncallshave been
suspended";and that "for me itis almostimpossibleto find oua wayto rend you my
ncwchapter of my report").
Written Statements