.;
1/ '
/If--
UNITED NATIONS t~. NATIONS UNIES
Vf'
POST~A.OCIRE.S.S-POS'tAUN1TEN.-.TtN.YU)017
C.A8-"ODI:IE.SS-'1:&:'-'E.UITISl.N&WYOt:tK
Jlllii:FIERH:NCIIE.:
18 December 1998
Dear Mr. Valencia-Ospina,
I have the honour to refer to the public sitting held on Thursday,ember 1998, in
the case conceming the Difference Relating to Immunity from Legalrocess of a Special
Rapporteur ofthe Commission on Human Rights. You will recall that President Schwebel
requested the United Nations to answer the questions put forth by Judges Guillaume and Koroma
within 10 days. I have the honour to attach herewith the answers on behalf of the Secretary
General.
~~,
l~~
Hans Corell (
Under-Secretary-General
for Legal Affairs
The Legal Counsel
Mr. Eduardo Valencia-Ospina
Registrar
International Courtf Justice
The Hague•
Question by Judge Guillaume
"Je serais reconnaissant au représentant des Nations Unies de fournir toute information
en sa possession sur les travaux préparatoires de la décision1998/297par laquelle le Conseil
économique et social a saisi la Cour." [CR 98/17,p.53]
Answer
1. The Economie and Social Council fonnally considered the Note by the Secretary-General
(El 1998/94) at its 47th and 48th meetings of its substantive session of 1998 held on 31 July 1998and
considered the draft decision (E/1998/L.49) at its 49th meeting on 5 August 1998. The Economie
and Social Council adopted the draft decision as decision 1998/297,without a vote, at its 49th
meeting on 5 August 1998. The relevant extractso sum_m~ary records of the 47th, 48th and49th
meetings of the Council, in English only, are attached hereto. While we are in a position to provide
the members of the Court with these summary records, it should be noted that they are othetwise
embargoed by the Secretariat, and therefore will not be distributed or made available, until suchrime
as they are also available in the other five official languagesnited Nations.
2. While the Secretariat makes and keeps sound recordings of the meetings ofthe Economie
and Social Council, the Council is not entitled to verbatim records and there are therefore no
transcriptsf the sound recordings of the meetings ofthe Council.
Question by Judge Koroma
"In the present case, what meaning is to be given to the expression 'words spoken or
written in the course of performance of his mission'?" [CR 98/17,p. 53)
Answer
1. Wîth respect to the privileges and immunities of experts on missions within the meaning of
Article VI of the Convention, the chapeau of Section 22 refers to "such privileges and immunities as
arenecessary for the independent exercise of their fonctions during the period of their missions", and
appliesto the particular privileges and immunities accorded to them in the six sub-paragraphs of
Section 22. The immunity from legal process of every kind in respect of words spoken or written
and acts done by them in the course of the perfonnance of their missions, accorded to experts on
missions under Article VI, Section 22(b), is thereforetlyfunctional. •
2
2. The Court, in the Mazilu Advisory Opinion, made clear that the meaning of provisions in the
Convention on "experts on mission" is to be ascertained by examining these provisions in their
legislative context, and then applying them to the particular facts of the case before the Court (see
Applicability of Article VI,Section 22, of the Convention on the Privileges and Immunities of the
UnitedNations, Advisory opinion of 15December 1989, I.C.J.Reports 1989, p. 177 at pp. 192 -198).
3. The Court in Mazilu first noted that the Convention was adopted pursuant to Article 105,
paragraph 3, of the Charter and that the Convention determined the privileges and immunities to be
accorded to: (1) the United Nations as such (Articles 1and II); (2) representatives ofmembers ofthe
United Nations (Article IV); (3) officiais of the Organization (Article V); and (4) experts on missions
(Article VI) (ibid., at p. 192). The Court then noted that Section 22 ofthe Convention, in setting out
the privileges and immunities that are to be accorded to experts on mission, made it clear that only
experts performing missions for the United Nations are covered but that the "Section does not,
however, furnish any indication of the nature, duration or place of those missions." (ibid., p 193).
The Court then observed:
"47. The purpose of Section 22 is nevertheless evident, namely, to enable the United
Nations to entrust missions to persans who do not have the status of an official ofthe
Organization, and ta guarantee them such privileges and immunities as are necessary for the
independent exercise oftheir functions. The experts thus appointed or elected may or may
not be remunerated, may or may not have a contract, may be given a task requiring work
over a lengthy period or a short time. The essence of the matter lies not in their
administrative position but in the nature of their mission." (At p. 194)
4. It is uncontested that a Special Rapporteur of the Commission on Human Rights is an expert
on mission and that an expert on mission bas immunity for any words spoken or written "in the
course of the performance" of his mission. The Court in Mazilu stated that it "considers that Section
22, in its reference to experts performîng missions for the United Nations, uses the ward 'mission' in
a general sense" (at p.l95) and that "the intent of Section 22 is to ensure the independence of such
experts in the interestsfthe Organization by according them the privileges and immunities
necessary for thepurpose" (at p. 195). It also concluded that these privileges and îmmunities are
"applicable to persons (other than United Nations officiais) to whom a mission bas been entrusted by
the Organization and who are therefore entitled to enjoy the privileges and immunities provided for
in this Section with a view to the independent exercise oftheir functions" (at p. 196). It is submitted
that the Court's jurisprudence thus requires that the phrase ''wordsspoken or written in the course of
performance of his mission" means that a determination must be made as ta whether the words were
spaken by Data' Param Cumaraswamy as part of the mission entrusted ta him by the Commission on
Human Rights and it is to this question that this answer now tums...
•
3
5. In a report on "Respect for the privileges and immunities of officiais of the United Nations
and the specialized agencies", the Secretary-General stated that "the distinction between acts
perfonned in an official capacity and those performed in a private capacity, which lies at the heart of
the concept of functional immunity, is a question of fact which depends on the circumstances of the
particular case." (Dossier No. 113, paragraph 7). Similarly, the Secretary-General maintains that the
question whether words or acts were spoken, written or done in the course of the performance of a
mission is a question of fact which depends on the circumstances of each particular case.
6. In the circumstances of the present case, the Secretary-General noted that it is within the
discretion of the Special Rapporteurs of the Commission on Human Rights to publicize their
activities and that the Commission values such publicity as a means to raise consciousness about
human rights standards and violations. In this connection, the High Commissioner for Human
Rights, in ber letter to the Secretary-General of 2 October 1998, also confirmed that "it is more
common than not for Special Rapporteurs to speak to the press about matters pertaining to their
investigations, thereby keeping the general public infonned of their work" and that "press coverage
is, indeed, an effectiveway ofraising awareness of an expert's concerns" (Dossier No. 54 bis, p.2).
Moreover, the Special Rapporteur bad specifically reported to the Commission on his working
methods and intention to conduct his own promotional activities in addition to those of the Centre
for Human Rights (Dossier No. 4).
7. Having concluded that it is within the proper discharge of the fonctions of the Special
Rapporteur's mandate to publicize his activities, the Secretary-General then determined that, with
regard to the capacity in which the particular words complained of in this case were spoken, Data'
Param Cumaraswamy bad been interviewed in his official capacity as Special Rapporteur and that
the article"Malaysian Justice on Trial" in the November 1995 issue of the British magazine
International Commercial Litigation explicitly referred to his official United Nations title and
capacity. With regard to the relation of the words spoken by the Special Rapporteur to the mission
entrusted to him by the Commission on Human Rights, the Secretary-General noted that the article
again explicitly referred to his United Nations' global mandate to investigate allegations conceming
the independence of the judiciary and that the article and passages at issue clearly related to
allegations conceming the independence ofthe Malaysianjudiciary. Bearing in mind the
independence, impartiality and integrity of United Nations' Special Rapporteurs, the Secretary
General also considered the content of the remarks and concluded that, as they express the Special
Rapporteur' s concems about the independence of the Malaysian judiciary, they were attributable to
the mission entrusted to him by the Commission on Human Rights. ..
•
4
8. Based on the foregoing, the Secretary-General detennined that the words which constitute
the basisof Plaintiffs'complaints in this case were spoken by the Special Rapporteur in the course of
the performance of his mission withîn the meaning of Section 22(b) of the Convention, and he,
therefore, maintained that Data' Param Cumaraswamy was immune from legal process with respect
thereto.
9. In this regard, the United Nations again recalls that, in its resolutions 1995/36 of3 March
1995, 1996/34 of 19April 1996 and later in 1997/23 of 11 April 1997 and 1998/35 of 17 April 1998
(Dossier Nos. 5, 6, 7 and 8), the Commission on Human Rights bas consistently noted with
appreciation the Special Rapj,orteur'sdetermination to achieve wide dissemination ofhis activities.
Moreover, when it renewed the Special Rapporteur's mandate for an additional three years in its
resolution 1997/23 (Dossier No. 7), the Commission, having bad the benefit ofthree ofhis reports,
was fully aware of thebasis for his investigation of the Malaysian judiciary (Dossier Nos. 9, 10 at
paras. 158-160, and 13); ofhis dealings with the press (See Dossier No. 10, paras. 152 and 160 and
DossierNo. 11,paras. 32-34 and 39); and ofthe lawsuits against him in the national Malaysian
courts (Dossier No. 11at paras. 122-134). The Commission's decision to renew the Special
Rapporteur's mandate, therefore confirmed its approval of the Special Rapporteur's working
methods as weil as of the performance of his mission ofwhich public statements were a part,
including making statements ta members ofthe press. In so doing, the Commission bas also
confinned the determination by the Secretary-General that the words complained ofwere spoken by
Data' Param Cumaraswamy in the course of the performance of his mission as the Commission' s
Special Rapporteur on the independence ofjudges and lawyers.
10. The United Na tons respectfully submits that, in the present case, the meaning of the
expression "words spoken or written in the course of performance of his mission" means words
spaken to a member of the press in the discharge of the functions of the Special Rapporteur and
published with explicit reference to the official capacity and the official title assigned to the Special
Rapporteur by the Commission on Human Rights, containing the fact of his investigation of, and his
concerns about, the independence of the Malaysian judiciary, a matter directly related to and
attributable to the mission entrusted to the Special Rapporteur on the independence ofjudges and
lav.ryersby the Commission on Human Rights.UNITED
NATIONS E
• Economie and Social Council
PROVISIONAL
E/1998/SR.47
18 December 1998
ORIGINAL: ENGLISH
Substantive session for 1998
PROVISIONAL SUMMARY RECORDOF THE 47th MEETING
Held at Headquarters, New York,
on Friday, 31 July 1998, at 10 a.m.
President: Mr. SOMAVÎA (Chile)
CONTENTS
OPERATIONALACTIVITIES OF THE UNITED NATIONS INTERNATIONALDEVELOPMENT
COOPERATION{continued)
{b) FOLLOW-UPTO POLICY RECOMMENDATION OSF THE GENERALASSEMBLY
(continued)
{cl REPORTS OF THE EXECUTIVEBOARDSOF THE UNITED NATIONS DEVELOPMENT
PROGRAMME/UNITED NATIONS POPULATIONFUND, THE UNITED NATIONS
CHILDREN'S FUNDAND THE WORLDFOODPROGRAMME {continued)
COORDINATIONOF THE POLICIES ANDACTIVITIES OF THE SPECIALIZED AGENCIES AND
OTHERBODIES OF THE UNITED NATIONS SYSTEMRELATEDTO THE FOLLOWINGTHEME:
COORDINATED FOLLOW-UPTO AND IMPLEMENTATION OF THE VIENNA DECLARATIONAND
PROGRAMMO EF ACTION {continued)
INTEGRATEDANDCOORDINATEDIMPLEMENTATION OF AND FOLLOW-UPTO MAJORUNITED
NATIONS CONFERENCESANDSUMMITS {continued)
COORDINATION,PROGRAMMA END OTHERQUESTIONS (continued)
1. ..
Corrections to this record should be submitted in one of the working
languages. They should be set forth in a memorandum and also incorporated in a
copy of the record. They should be sent within one week of the date of this
document to the Chief, Official Records Editing Section, room DC2-750, 2 United
Nations Pla2a.
98-81179 (E) 1. ..
111111111111111111111111111111111111111111111E/l998/SR.47
English
Page 2
CONTENTS (continued)
(a) REPORTS OF COORDINATIONBODIES (continued)
(d) INTERNATIONALCOOPERATIONIN THE FIELD OF INFORMATICS (continued)
IMPLEMENTATIONOF GENERALASSEMBLYRESOLUTIONS 50/227 AND52/12 B (continued)
ECONOMieAND ENVIRONMENTAL QUESTIONS (continued)
(a) SUSTAINABLEDEVELOPMENT (continued)
(d) INTERNATIONALCOOPERATIONIN TAX MATTERS (continued)
(e) PUBLIC ADMINISTRATIONANDFINANCE (continued)
(f) CARTOGRAPHY (continued)
SOCIAL AND HUMANRIGHTS QUESTIONS (continuedl
(a) ADVANCEMENO TF WOMEN {continued)
(e) UNITED NATIONS HIGH COMMISSIONERFOR REFUGEES {continued)
(f) IMPLEMENTATIONOF THE PROGRAMMO EF ACTION FOR THE THIRD DECADETO
COMBATRACISM AND RACIAL DISCRIMINATION (continued)
(g) HUMANRIGHTS (continued)
ADOPTIONOF THE AGENDAAND OTHERORGANIZATIONALMATTERS (continued)
1. ..E/1998/SR.47
English
Page 16
action on draft decision E/1998/L.48, which was the result of informa!
consultations.
Draft decision E/1998/L.48 was adopted.
The PRESIDENT invited the Council ta resolution
L.36", concerning the International for the
Advancement of Women, which bad been re-issued The draft
resolution had no budget implications.
J"'s. SINGGIH (Observer for Indonesia) , on behalf of the Group
of 77 and China, announced that Austria, Italy, rlands, Portugal, Spain and
Turkey bad become sponsors
Draft resolution E/1998/L.36. was adopted.
Ms. SINGGIH (Observer for Indonesi , speaking on behalf of the Group
of 77 and China, expressed appreciation cooperation and flexibility
demonstrated during negotiations. be taken to ensure that the
resolution was implemented effective , strengthening the Institute for the
benefit of all Member States.
for Austria), speaking on behalf of the
European that implementation _of the resolution would
help the the difficulties it was currently facing.
The the Council should take note of the
report of the follow-up ta and implementation of the
Beijing Declaration nd Platform for Action (E/1998/53); the report of the
imination of Discrimination against Women (A/53/36 (PartI));
the report of e United Nations High Commissioner for Refugees (E/1998/7
and of the Secretary-General on the implementation of the
the Third Decade to Combat Racism and Racial
ation (E/1998/51); the report of the Committee on Economie, Social and
Rights on its sixteenth and seventeenth sessions (E/1998/22); and the
United Nations Commissioner for Human Rights (E/1998/84) .
d.
The PRESIDENT said that informai consultations on the note by the
Secretary-General, entitled "Privileges and immunities of the Special Rapporteur
of the Commission on Human Rights on the independence of judges and lawyers"
(E/1998/94), bad not yielded a consensus. In view of the urgency of the matter,
1. .. E/1998/SR.47
English
Page 17
he took it that the Council wished him to refer it to the Bureau for
consideration and subsequent referral back to the Council.
It was so decided.
Mr. AL-HASSAN (Oman), supported by Mr. HAMDAN(Lebanoril and
Mr. IRI (Syrian Arab Republic), said that his delegation wished to express
its concern and dissatisfaction with the tendency for Arabie-language
versions ocuments needed for consideration of items on the Council's agenda
to be late or, in sorne cases, not at all.
The that, while practical reasons existed for late
sorne cases, he agreed that the principle of having
documents distribute six official working languages of the Organization
must be upheld.
Mr. REYES (Cuba) pointed out that certain documents
contained substantive errors translation, which altered their meaning. The
Secretariat should take
The PRESIDENT said occurred quite often and that it
was normal practice to point rs to the Secretariat, so that they could
be rectified.
Mr. CORDEIRO (Brazill said that translation errors often led to texts
no longer reflecting the agreement which ha been reached between delegations.
The Secretariat should check the text with th
consistency.
Mr. HAMDAN(Lebanon) said that it was ex
consistency between original texts and His delegation had
noted errors in the Arabie versions of documents very strongly that it
had a right to raise objections about them.
The PRESIDENT said that the Secretariat normal procedure
and consult with the translation services in question about tha
He invited the Council to take action on draft
entitled "Dates of sessions of subsidiary bodies of
Council".
Draft decision E/1998/L.44 was adopted.
1...UNITED
NATIONS E
Economie and Social Council
PROVISIONAL
E/1998/SR.48
15 December 1998
ORIGINAL: ENGLISH
Substantive session for 1998
PROVISIONAL SUMMARYRECORD OF THE 48th MEETING
Held at Headquarters, New York,
on Friday, 31 July 1998, at 3 p.m.
President: Mr. SOMAVIA (Chile)
CONTENTS
SOCIAL AND HUMANRIGHTS QUESTIONS (continued)
(g) HUMANRIGHTS (continued)
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTIONS 50/227 AND 52/12 B (continued)
ADOPTION OF THE AGENDAAND OTHER ORGANIZATIONAL MATTERS (continued)
SUSPENSION OF THE 1998 SUBSTANTIVE SESSION OF THE COUNCIL
Corrections ta this record should be submitted in one of the working
languages. They should be set forth in a memorandum and also incorporated in a
copy of the record. They should be sent within one week of the date of this
document ta the Chief, Official Records Editing Section, room DC2-750, 2 United
Nations Plaza.
98-81182 (E) / ...
111111111111111111111111111111111111111111111E/1998/SR.48
English
Page 2
The meeting was called to arder at 4 p.m.
SOCIAL AND HUMANRIGHTS QUESTIONS (continued)
(g) HUMANRIGHTS (continued) (E/1998/94)
Mr. CHOWDHURY(Bangladesh), Vice-President, reporting on the
informai consultations held on the note by the Secretary-General contained in
document E/1998/94, said that it bad been agreed that it would not be possible
for the Council to take a decision on the note since delegations needed time for
consultations bath within their Missions and with their respective capitals.
Members bad also agreed that the proposed Council resolution should bath request
an advisory opinion from the International Court of Justice and cal! upon the
Government of Malaysia to ensure that all judgements and proceedings in the
matter were stayed pending receipt of the advisory opinion. It was agreed,
lastly, that the proposed Council resolution should be translated into all
official languages and made available ta members so that a decision on the
matter could be taken the following week.
The PRESIDENT said that he took it that the Council wished ta resume
its consideration of the matter at its resumed session to be held the following
week.
It was so dec·: .·-·d.
Mr. HASrH (Observer for Malaysia) expressed his delegation' s deep
regret at the difference which bad arisen between Malaysia and the United
Nations as a result of the action of the United Nations Special Rapporteur on
the Independence of Judges and Lawyers, a national of Malaysia. It took note of
document E/1998/94 and of the Secretary-General's decision ta seek an advisory
opinion from the International Court of Justice through the Economie and Social
Council. Malaysia would formally present its position on the issue at the
appropriate time, but wished to make a number of comments on the note by the
Secretary-General.
With reference to paragraph 7 of the note, the Minister for Foreign
Affairs of Malaysia had not refused ta amend his certificate but bad been unable
to do sa, given the difference in interpretation by Malaysia as to the extent of
the Special Rapporteur's irnmunities.
1. .. E/1998/SR.48
English
Page 3
With reference to paragraph 14 of the note, it was not correct to say that
the Government of Malaysia had insisted that, in arder to negotiate a
settlement, Maitre Fortier must return to Kuala Lumpur. While the Government of
Malaysia had requested a second visit by Maitre Fortier to Kuala Lumpur ta
assist in resolving the issue, it was prepared and bad in fact decided to send a
senior legal official tc New York to explore further the possibility of a
settlemen.t with the United Nations, an offer that had been acceptable to the
Secretary-General. It bad been at the further suggestion of the Secretary
General ta once again dispatch his Special Envoy to Kuala Lumpur in arder to
expedite a settlement that the Government of Malaysia had readily agreed to
receive Maitre Fortier from 25 ta 28 July 1998.
Lastly, with reference to paragraph 15, it was not true ta state that "the
Government of Malaysia was not going ta participate ... in settling this
matter". While it was true that the Government of Malaysia was not going ta
participate in preparing a joint submission ta the current session of the
Council, given the legal constraints, it bad cooperated in every way possible
with the United Nations in its efforts ta resolve the issue.
His delegation deeply appreciated the efforts of the Secretary-General ta
find an amicable solution ta the problem. Notwithstanding the unfortunate
difference that bad arisen with the United Nations, Malaysia remained fully
committed ta the Organization and would continue ta play an active part in all
its activities.
ATIYANTO (Observer for Indonesia), speaking on behalf of the
that it had not been possible tc hold informa!
consultations on the utilization of the development dividend. The
Group of 77 and China, however, a great importance ta the issue and
regretted that the report of contained in document
E/1998/81 had been submitted ta the Council ta the
relevant intergovernmental bodies, as provided for 6 of General
Assembly resolution 52/235. The Group of 77 and China,
negotiated in good faith, therefore wished ta propose the following t
decision:
1. .. --- ---- -----
UNITED
NATIONS
E
Economie and Social Council
PROVISIONAL
E/1998/SR.49
15 December 1998
ORIGINAL: ENGLISH
Resumed substantive session for 1998
PROVISIONAL SUMMARYRECORD OF THE 49th MEETING
Held at Headquarters, New York,
on Wednesday, 5 August 1998, at 10.30 a.m.
President: Mr. CHOWDHURY (Bangladesh)
(Vice-President)
CONTENTS
SOCIAL AND HUMANRIGHTS QUESTIONS: HUMANRIGHTS (continued)
ADOPTION OF THE AGENDAAND OTHER ORGANIZATIONAL MATTERS (continued)
SUSPENSION OF THE RESUMED1998 SUBSTANTIVE SESSION
Corrections to this record should be submitted in one of the working
languages. They should be set forth in a memorandum and also incorporated in a
copy of the record. They should be sent within one week of the date of this
document to the Chief, Official Records Editing Section, Office of Conference
and Support Services, room DC2-794, 2 United Nations Plaza.
98-81218 (E) 1...
111111111111111111111111111111111111111111111E/l998/SR.49
English
Page 2
The meeting was called to arder at 10.50 a.m.
SOCIAL AND HUMANRIGHTS QUESTIONS: HUMANRIGHTS (continued) (E/1998/94 and
Add.l, E/1998/L.49)
The PRESIDENT introduced the draft decision contained in document
E/1998/L.49. He stressed the urgency of referring the case to the International
court of Justice and requesting that the Malaysian Government stay proceedings
until the Court had issued an opinion.
Mr. REYES RODRÎGUEZ {Cuba) said that his delegation would like ta
amend operative paragraph 1 by deleting from !ines 7 to 9 "in the
circumstances ... in this case." That section could be included as a last
preambular paragraph and would then read "Taking note of the circumstances
in this case;". He believed that the reference ta the note by the Secretary
General (E/1998/94) might prejudge the Court's decision. Moreover, each party
would in any case have an opportunity to explain its position.
In operative paragraph 2, "Calls'upon" should be replaced by "invites".
Mr. HYNES (Canada) said that it would be difficult to accept any
changes ta the text without consultations concerning the legal implications.
With regard ta operative paragraph 1, it was important ta retain the reference
tc the note by the Secretary-General in arder to provide the Court with the
basic facts to which tc refer in making its decision.
Mr. LAVALLE-VALDÉS (Observer for Guatemala) agreed with the
representative of Canada that it was important to retain the reference ta the
note of the Secretary-General in operative paragraph 1, although he felt that it
could be amended to read 1paragraphs 4 to 15" since paragraphs 1 to 3 only
provided background information.
Mr. REYES RODRÎGUEZ {Cuba) pointed out that his delegation bad not
participated in the drafting or adoption of the note by the Secretary-General,
which simply represented the point of view of the secretary-General. The
operative paragraph as it stood conferred legal status on the note and his
delegation therefore could not agree tc retain it since that wou1d tend ta
prejudge the deliberations of the Court.
/.. - ---,
E/1998/SR.49
English
Page 3
Mr. THEUERMANN(Observer for Austria), speaking on behalf of the
European union, said that it would be difficult to make changes tc the text
without further consultations and instructions from Governments. It was his
opinion that the text should stand as written since it was very important that
reference be made to the note by the Secretary-General; the note explained the
circumstances of the case, and the opinions it expressed were certainly not
binding on the Court. The court would base its opinion on the presentations by
the parties. It was also important ta retain the reference ta the "legal
obligations of Malaysia" at the end of operative paragraph 1.
Mr. ZACKLIN (Assistant Secretary-General for Legal Affairs), speaking
on behalf of the Secretary-General, stressed the importance of retaining the
reference to the circumstances of the case in operative paragraph 1, since the
phrasing was not binding on the ether party, which bad in any case approved the
text. In addition, the deletion of the reference to the legal obligations of
Malaysia would strip the referral ta the Court of all meaning. He reiterated
that the Secretary-General felt that it was imperative that the text stand as
written. With reference ta the amendment suggested by Guatemala, he believed it
important that the original text be retained since paragraphs 1 ta 3 con.tributed
ta the explanation of the facts.
Mr. KAMITANI (Japan) said that his delegation supported the draft
decision as read and that any changes would require consultations, which would
further delay a resolution of the dispute.
Mr. REYES RODRÎGUEZ (Cuba) suggested, with reference to operative
paragraph 1, that a possible compromise might be simply ta substitute "taking
note of" for "in" before "circumstances" in the last part of operative
paragraph 1.
Mr. ZACKLIN (Assistant Secretary-General for Legal Affairs) said that
that amendment to operative paragraph 1 would be acceptable. In operative
paragraph 2, the Secretary-General would prefer ta use the stronger verb "calls
upon".
Mr. XIE Bohua (China) asked how long it was expected ta take for the
International Court of Justice ta issue its opinion and whether Malaysia was
under any obligation, as a State party ta the Convention on the Privileges and
Immunities of the United Nations, ta stay the actions in its courts pending the
rendering of that opinion.
1. .. ...
E/1998/SR.49
English
Page 4
Mr. THEUERMANN(Observer for Austria), speaking on behalf of the
European Union, said that the Union could accept the proposed amendrnent to
paragraph 1. It would prefer to leave paragraph 2 as drafted.
Mr. PFIRTER (Observer for switzerland) said that perhaps the
difficulty lay in the translation, in that the word "Exhorta", used in the
Spanish version, was stronger than the terms used in English and French.
Mr. AZLAN (Observer for Malaysia) reiterated that his delegation bad
noted three factual errors in the note by the Secretary-General. With regard to
the last sentence of paragraph 7, the Minister of Foreign Affairs had not
refused tc amend his certificate, but bad been unable tc do sc. TUrning tc
paragraph 14, the Governrnent of Malaysia bad not insisted that Maitre Portier
should return to Kuala Lumpur, but rather, bad requested him to do sc. Finally,
referring tc paragraph 15, he said that the Government of Malaysia would prepare
its own submission tc the International Court of Justice.
Mr. ZACKLIN (Assistant Secretary-General for Legal Affairs) said that,
based on material made available to the Office of Legal Affairs by the
International Court of Justice, the case would be considered as a priority and
would be taken up in the fall of 1998. In reply ta the representative of China,
staying the proceedings was not an obligation of the State party under the
Convention, and did not irnply termination of the proceedings, but simply
suspending them until the advisory opinion was received. In the early stages of
the negotiations with the Government of Malaysia, they had stayed the
proceedings. Any action by the Malaysian courts, however, would prejudge the
opinion of the International Court of Justice.
Mr. REYES RODRÎGUEZ (Cuba) asked whether all language versions of the
text of the draft resolution bad equal validity.
Mr. ZACKLIN (Assistant Secretary-General for Legal Affairs} said that
all the official language versions bad equal value. However, in the event of a
difference in rneaning the Court could use the original language, which in that
case was English.
The meeting was suspended at 11:40 a.rn. and resurned at 11.55 a.rn.
In the light of an exchange of views in which Canada, Guatemala,
Austria and Switzerland took part, Mr. REYES RODRÎGUEZ (CUba) proposed that in
paragraph 2, the ward "Exhorta" should be replaced by "Invita" in the Spanish
version only. The English text would remain unchanged.
/ .....
E/1998/SR.49
English
Page 5
Ms. MESDOUA (Algeria} said that the same amendment should be made in
the Arabie version of the draft decision.
Draft decision E/1998/L.49 was adopted as amended.
ADOPTION OF THE AGENDAAND OTHER ORGANIZATIONAL MATTERS (continued) (E/1998/96,
E/1998/L.47}
The PRESIDENT said that the Council bad not been in a position tc
adopt formally the draft decision on themes for the 1999 substantive session of
the Economie and Social Council at its previous meeting because the related note
by the Secretary-General, E/1998/96, bad not been available in all the official
languages.
Draft decision E/1998/L.47 was formally adopted.
SUSPENSION OF THE RESUMED 1998 SUBSTANTIVE SESSION
The PRESIDENT declared suspended the 1998 resumed substantive session
of the Economie and Social Council.
The meeting rose at 12.10 p.m.
Written Replies of the United Nations to Questions put by Judges Guillaume and Koroma