INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

DIFFERENCE RELATING TO IMMUNITY FROM
LEGAL PROCESS OF A SPECIAL RAPPORTEUR
OF THE COMMISSION ON HUMAN RIGHTS

ADVISORY OPINION OF 29 APRIL 1999

1999

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DIFFEREND RELATIF À L’'IMMUNITÉ

DE JURIDICTION D’UN RAPPORTEUR SPECIAL
DE LA COMMISSION DES DROITS DE L'HOMME

AVIS CONSULTATIF DU 29 AVRIL 1999
Official citation:

Difference Relating to Immunity from Legal Process of a
Special Rapperteur of the Commission on Human Rights,
Advisory Opinion, I.C.J. Reports 1999, p. 62

Mode officiel de citation:

Différend relatif à l'immunité de juridiction d'un rapporteur spécial
de la Commission des droits de l'homme, avis consultatif,
C.LJ. Recueil 1999, p. 62

Sales number
ISSN 0074-4441 N° de vente: 726
ISBN 92-1-070793-1

29 APRIL 1999

ADVISORY OPINION

DIFFERENCE RELATING TO IMMUNITY FROM
LEGAL PROCESS OF A SPECIAL RAPPORTEUR
OF THE COMMISSION ON HUMAN RIGHTS

DIFFEREND RELATIF À L’IMMUNITE
DE JURIDICTION D'UN RAPPORTEUR SPECIAL
DE LA COMMISSION DES DROITS DE L'HOMME

29 AVRIL 1999

AVIS CONSULTATIF
1999
29 April
General List
No. 100

62

INTERNATIONAL COURT OF JUSTICE

YEAR 1999

29 April 1999

DIFFERENCE RELATING TO IMMUNITY FROM
LEGAL PROCESS OF A SPECIAL RAPPORTEUR
OF THE COMMISSION ON HUMAN RIGHTS

Article 96, paragraph 2, of the Charter and Article 65, paragraph I, of the
Statute — Resolution 89 (I) of the General Assembly authorizing the Economic
and Social Council to request advisory opinions — Article VIII, Section 30, of
the Convention on the Privileges and Immunities of the United Nations —
Existence of a “difference” between the United Nations and one of its Members
— Opinion “accepted as decisive by the parties” — Advisory nature of the
Court's function and particular treaty provisions — “Legal question” — Ques-
tion arising “within the scope of [the] activity” of the body requesting it.

Jurisdiction and discretionary power of the Court to give an opinion —
“Absence of compelling reasons” to decline to give such opinion.

Question on which the opinion is requested — Divergence of views — Formu-
lation adopted by the Council as the requesting body.

Special Rapporteur of the Commission on Human Rights — “Expert on mis-
sion” — Applicability of Article VI, Section 22, of the General Convention —
Specific circumstances of the case — Question whether words spoken by the
Special Rapporteur during an interview were spoken “in the course of the per-
formance of his mission” — Pivotal role of the Secretary-General in the process
of determining whether, in the prevailing circumstances, an expert on mission is
entitled to the immunity provided for in Section 22 (b) — Interview given by
Special Rapporteur to International Commercial Litigation — Contacts with
the media by Special Rapporteurs of the Commission on Human Rights — Ref-
erence to Special Rapporteur’s capacity in the text of the interview — Position
of the Commission itself.

Legal obligations of Malaysia in this case — Point in time from which the
question must be answered — Authority and responsibility of the Secretary-
General to inform the Government of a member State of his finding on the
immunity of an agent — Finding creating a presumption which can only be set
aside by national courts for the most compelling reasons — Obligation on the
governmental authorities to convey that finding to the national courts concerned
— Immunity from legal process “of every kind” within the meaning of Sec-

4
63 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

tion 22 (b) of the Convention — Preliminary question which must be expedi-
tiously decided in limine litis.

Holding the Special Rapporteur financially harmless.

Obligation of the Malaysian Government to communicate the advisory opinion
to the national courts concerned.

Claims for any damages incurred as a result of acts of the Organization or its
agents — Article VIII, Section 29, of the General Convention — Conduct
expected of United Nations agents.

ADVISORY OPINION

Present: President SCHWEBEL; Vice-President WEERAMANTRY; Judges ODA,
BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER,
KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOHMANS,
Rezek; Registrar VALENCIA-OSPINA. |

Concerning the difference relating to immunity from legal process of a Spe-
cial Rapporteur of the Commission on Human Rights,

THE Court,
composed as above,
gives the following Advisory Opinion:

1. The question on which the Court has been requested to give an advisory
opinion is set forth in decision 1998/297 adopted by the United Nations Eco-
nomic and Social Council (hereinafter called the “Council”) on 5 August 1998.
By a letter dated 7 August 1998, filed in the Registry on 10 August 1998, the
Secretary-General of the United Nations officially communicated to the
Registrar the Council’s decision to submit the question to the Court for an
advisory opinion. Decision 1998/297, certified copies of the English and French
texts of which were enclosed with the letter, reads as follows:

“The Economic and Social Council,

Having considered the note by the Secretary-General on the privileges
and immunities of the Special Rapporteur of the Commission on Human
Rights on the independence of judges and lawyers’,

Considering that a difference has arisen between the United Nations and
the Government of Malaysia, within the meaning of Section 30 of the
Convention on the Privileges and Immunities of the United Nations, with
respect to the immunity from legal process of Dato’ Param Cumara-
swamy, the Special Rapporteur of the Commission on Human Rights on
the independence of judges and lawyers,

Recalling General Assembly resolution 89 (I) of 11 December 1946,

1. Requests on a priority basis, pursuant to Article 96, paragraph 2, of the
Charter of the United Nations and in accordance with General Assembly

! E/1998/94,
64 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

resolution 89 (I), an advisory opinion from the International Court of
Justice on the legal question of the applicability of Article VI, Section 22,
of the Convention on the Privileges and Immunities of the United Nations
in the case of Dato’ Param Cumaraswamy as Special Rapporteur of the
Commission on Human Rights on the independence of judges and law-
yers, taking into account the circumstances set out in paragraphs | to 15 of
the note by the Secretary-General', and on the legal obligations of Malay-
sia in this case;

2. Calls upon the Government of Malaysia to ensure that all judgements
and proceedings in this matter in the Malaysian courts are stayed pending
receipt of the advisory opinion of the International Court of Justice, which
shall be accepted as decisive by the parties.

! E/1998/94.”

Also enclosed with the letter were certified copies of the English and French
texts of the note by the Secretary-General dated 28 July 1998 and entitled
“Privileges and Immunities of the Special Rapporteur of the Commission on
Human Rights on the Independence of Judges and Lawyers” and of the adden-
dum to that note (E/1998/94/Add.1), dated 3 August 1998.

2. By letters dated 10 August 1998, the Registrar, pursuant to Article 66, para-
graph 1, of the Statute of the Court, gave notice of the request for an advisory
opinion to all States entitled to appear before the Court. A copy of the
bilingual printed version of the request, prepared by the Registry, was subse-
quently sent to those States.

3. By an Order dated 10 August 1998, the senior judge, acting as President
of the Court under Article 13, paragraph 3, of the Rules of Court, decided that
the United Nations and the States which are parties to the Convention on the
Privileges and Immunities of the United Nations adopted by the United Nations
General Assembly on 13 February 1946 (hereinafter called the “General Con-
vention”) were likely to be able to furnish information on the question in
accordance with Article 66, paragraph 2, of the Statute. By the same Order, the
senior judge, considering that, in fixing time-limits for the proceedings, it was
“necessary to bear in mind that the request for an advisory opinion was
expressly made ‘on a priority basis’”, fixed 7 October 1998 as the time-limit
within which written statements on the question might be submitted to the
Court, in accordance with Article 66, paragraph 2, of the Statute, and 6 Novem-
ber 1998 as the time-limit for written comments on written statements, in
accordance with Article 66, paragraph 4, of the Statute.

On 10 August 1998, the Registrar sent to the United Nations and to the
States parties to the General Convention the special and direct communication
provided for in Article 66, paragraph 2, of the Statute.

4. By a letter dated 22 September 1998, the Legal Counsel of the United
Nations communicated to the President of the Court a certified copy of the
amended French version of the note by the Secretary-General which had been
enclosed with the request. Consequently, a corrigendum to the printed French
version of the request for an advisory opinion was communicated to all States
entitled to appear before the Court.

5. The Secretary-General communicated to the Court, pursuant to
65 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

Article 65, paragraph 2, of the Statute, a dossier of documents likely to throw
light upon the question; these documents were received in the Registry in
instalments from 5 October 1998 onwards.

6. Within the time-limit fixed by the Order of 10 August 1998, written state-
ments were filed by the Secretary-General of the United Nations and by Costa
Rica, Germany, Italy, Malaysia, Sweden, the United Kingdom and the United
States of America; the filing of a written statement by Greece on 12 October
1998 was authorized. A related letter was also received from Luxembourg on
29 October 1998. Written comments on the statements were submitted, within
the prescribed time-limit, by the Secretary-General of the United Nations and
by Costa Rica, Malaysia, and the United States of America. Upon receipt of
those statements and comments, the Registrar communicated them to all States
having taken part in the written proceedings.

The Registrar also communicated to those States the text of the introductory
note to the dossier of documents submitted by the Secretary-General. In addi-
tion, the President of the Court granted Malaysia’s request for a copy of the
whole dossier; on the instructions of the President, the Deputy-Registrar also
communicated a copy-of that dossier to the other States having taken part in
the written proceedings, and the Secretary-General was so informed.

7. The Court decided to hold hearings, opening on 7 December 1998, at
which oral statements might be submitted to the Court by the United Nations
and the States parties to the General Convention.

8. Pursuant to Article 106 of the Rules of Court, the Court decided to make
the written statements and comments submitted to the Court accessible to the
public, with effect from the opening of the oral proceedings.

9. In the course of public sittings held on 7 and 8 December 1998, the Court
heard oral statements in the following order by:

for the United Nations: Mr. Hans Corell, Under-Secretary-General for Legal
Affairs, the Legal Counsel,

Mr. Ralph Zacklin, Assistant Secretary-General for
Legal Affairs;

for Costa Rica: H.E. Mr. José de J. Conejo, Ambassador of Costa
Rica to the Netherlands,
Mr. Charles N. Brower, White & Case LLP;

for Italy: Mr. Umberto Leanza, Head of the Diplomatic Legal
Service at the Ministry of Foreign Affairs;

for Malaysia: Dato’ Heliliah bt Mohd Yusof, Solicitor General of
Malaysia,

Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary
Professor of International Law, University of
Cambridge.

The Court having decided to authorize a second round of oral statements, the
United Nations, Costa Rica and Malaysia availed themselves of this option; at
a public hearing held on 10 December 1998, Mr. Hans Corell, H.E. Mr. José de
J. Conejo, Mr. Charles N. Brower, Dato’ Heliliah bt Mohd Yusof and Sir
Elihu Lauterpacht were successively heard.

7
66 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

Members of the Court put questions to the Secretary-General’s representa-
tive, who replied both orally and in writing. Copies of the written replies were
communicated to all the States having taken part in the oral proceedings;
Malaysia submitted written comments on these replies.

10. In its decision 1998/297, the Council asked the Court to take into
account, for purposes of the advisory opinion requested, the “circum-
stances set out in paragraphs 1 to 15 of the note by the Secretary-
General” (E/1998/94). Those paragraphs read as follows:

“1, In its resolution 22 A (I) of 13 February 1946, the General
Assembly adopted, pursuant to Article 105 (3) of the Charter of the
United Nations, the Convention on the Privileges and Immunities of
the United Nations (the Convention). Since then, 137 Member States
have become parties to the Convention, and its provisions have been
incorporated by reference into many hundreds of agreements relat-
ing to the headquarters or seats of the United Nations and its
organs, and to activities carried out by the Organization in nearly
every country of the world.

2. That Convention is, inter alia, designed to protect various cat-
egories of persons, including ‘Experts on Mission for the United
Nations’, from all types of interference by national authorities. In
particular, Section 22 (b) of Article VI of the Convention provides:

‘Section 22: Experts (other than officials coming within the
scope of Article V) performing missions for the United Nations
shall be accorded such privileges and immunities as are necessary
for the independent exercise of their functions during the period of
their missions, including time spent on journeys in connection
with their missions. In particular they shall be accorded:

(b) in respect of words spoken or written and acts done by them
in the course of the performance of their mission, immunity
from legal process of every kind. This immunity from legal —
process shall continue to be accorded notwithstanding that
the persons concerned are no longer employed on missions
for the United Nations.’

3. In its Advisory Opinion of 14 December 1989, on the Applica-
bility of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations (the so-called ‘Mazilu case’),
the International Court of Justice held that a Special Rapporteur of
the Subcommission on the Prevention of Discrimination and Protec-
tion of Minorities of the Commission on Human Rights was an
67

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

‘expert on mission’ within the meaning of Article VI of the Conven-
tion.

4. The Commission on Human Rights, by its resolution 1994/41
of 4 March 1994, endorsed by the Economic and Social Council in
its decision 1994/251 of 22 July 1994, appointed Dato’ Param Cumara-
swamy, a Malaysian jurist, as the Commission’s Special Rapporteur
on the Independence of Judges and Lawyers. His mandate consists
of tasks including, inter alia, to inquire into substantial allegations
concerning, and to identify and record attacks on, the independence
of the judiciary, lawyers and court officials. Mr. Cumaraswamy has
submitted four reports to the Commission on the execution of his
mandate: E/CN.4/1995/39, E/CN.4/1996/37, E/CN.4/1997/32 and
E/CN.4/1998/39. After the third report containing a section on the
litigation pending against him in the Malaysian civil courts, the
Commission at its fifty-fourth session, in April 1997, renewed his
mandate for an additional three years.

5. In November 1995 the Special Rapporteur gave an interview to
International Commercial Litigation, a magazine published in the
United Kingdom of Great Britain and Northern Ireland but circu-
lated also in Malaysia, in which he commented on certain litigations
that had been carried out in Malaysian courts. As a result of an
article published on the basis of that interview, two commercial com-
panies in Malaysia asserted that the said article contained defama-
tory words that had ‘brought them into public scandal, odium and
contempt’. Each company filed a suit against him for damages
amounting to M$30 million (approximately US$12 million each),
‘including exemplary damages for slander’.

6. Acting on behalf of the Secretary-General, the Legal Counsel
considered the circumstances of the interview and of the contro-
verted passages of the article and determined that Dato’ Param
Cumaraswamy was interviewed in his official capacity as Special
Rapporteur on the Independence of Judges and Lawyers, that the
article clearly referred to his United Nations capacity and to the
Special Rapporteur’s United Nations global mandate to investigate -
allegations concerning the independence of the judiciary and that the
quoted passages related to such allegations. On 15 January 1997, the
Legal Counsel, in a note verbale addressed to the Permanent Rep-
resentative of Malaysia to the United Nations, therefore ‘requested
the competent Malaysian authorities to promptly advise the Malay-
sian courts of the Special Rapporteur’s immunity from legal process’
with respect to that particular complaint. On 20 January 1997, the
Special Rapporteur filed an application in the High Court of Kuala
Lumpur (the trial court in which the said suit had been filed) to set
aside and/or strike out the plaintiffs’ writ, on the ground that the
68

10

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

words that were the subject of the suits had been spoken by him in
the course of performing his mission for the United Nations as Spe-
cial Rapporteur on the Independence of Judges and Lawyers. The
Secretary-General issued a note on 7 March 1997 confirming that
‘the words which constitute the basis of plaintiffs’ complaint in this
case were spoken by the Special Rapporteur in the course of his mis-
sion’ and that the Secretary-General ‘therefore maintains that Dato’
Param Cumaraswamy is immune from legal process with respect
thereto’. The Special Rapporteur filed this note in support of his
above-mentioned application.

7. After a draft of a certificate that the Minister for Foreign
Affairs proposed to file with the trial court had been discussed with
representatives of the Office of Legal Affairs, who had indicated that
the draft set out the immunities of the Special Rapporteur incom-
pletely and inadequately, the Minister nevertheless on 12 March
1997 filed the certificate in the form originally proposed: in particu-
lar the final sentence of that certificate in effect invited the trial court
to determine at its own discretion whether the immunity applied, by
stating that this was the case ‘only in respect of words spoken or
written and acts done by him in the course of the performance of his
mission’ (emphasis added). In spite of the representations that had
been made by the Office of Legal Affairs, the certificate failed to
refer in any way to the note that the Secretary-General had issued a
few days earlier and that had in the meantime been filed with the
court, nor did it indicate that in this respect, i.e. in deciding whether
particular words or acts of an expert fell within the scope of his mis-
sion, the determination could exclusively be made by the Secretary-
General, and that such determination had conclusive effect and
therefore had to be accepted as such by the court. In spite of
repeated requests by the Legal Counsel, the Minister for Foreign
Affairs refused to amend his certificate or to supplement it in the
manner urged by the United Nations.

8. On 28 June 1997, the competent judge of the Malaysian High
Court for Kuala Lumpur concluded that she was ‘unable to hold
that the Defendant is absolutely protected by the immunity he
claims’, in part because she considered that the Secretary-General’s
note was merely ‘an opinion’ with scant probative value and no
binding force upon the court and that the Minister for Foreign
Affairs’ certificate ‘would appear to be no more than a bland state-
ment as to a state of fact pertaining to the Defendant’s status and
mandate as a Special Rapporteur and appears to have room for
interpretation’. The Court ordered that the Special Rapporteur’s
motion be dismissed with costs, that costs be taxed and paid forth-
with by him and that he file and serve his defence within 14 days. On
8 July, the Court of Appeal dismissed Mr. Cumaraswamy’s motion
for a stay of execution.
69

11

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

9. On 30 June and 7 July 1997, the Legal Counsel thereupon sent
notes verbales to the Permanent Representative of Malaysia, and
also held meetings with him and his Deputy. In the latter note, the
Legal Counsel, inter alia, called on the Malaysian Government to
intervene in the current proceedings so that the burden of any
further defence, including any expenses and taxed costs resulting
therefrom, be assumed by the Government; to hold Mr. Cumara-
swamy harmless in respect of the expenses he had already incurred
or that were being taxed to him in respect of the proceedings so far;
and, so as to prevent the accumulation of additional expenses and
costs and the further need to submit a defence until the matter of his
immunity was definitively resolved between the United Nations and
the Government, to support a motion to have the High Court pro-
ceedings stayed until such resolution. The Legal Counsel referred to
the provisions for the settlement of differences arising out of the
interpretation and application of the 1946 Convention that might
arise between the Organization and a Member State, which are set
out in Section 30 of the Convention, and indicated that if the Gov-
ernment decided that it cannot or does not wish to protect and to
hold harmless the Special Rapporteur in the indicated manner, a dif-
ference within the meaning of those provisions might be considered
to have arisen between the Organization and the Government of
Malaysia.

10. Section 30 of the Convention provides as follows:

‘Section 30: All differences arising out of the interpretation or
application of the present convention shall be referred to the
International Court of Justice, unless in any case it is agreed by
the parties to have recourse to another mode of settlement. If a
difference arises between the United Nations on the one hand and
a Member on the other hand, a request shal! be made for an advi-
sory 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 deci-
sive by the parties.’

11. On 10 July yet another lawsuit was filed against the Special
Rapporteur by one of the lawyers mentioned in the magazine
article referred to in paragraph 5 above, based on precisely the
same passages of the interview and claiming damages in an amount
of M$60 million (US$24 million). On 11 July, the Secretary-General
issued a note corresponding to the one of 7 March 1997 (see para. 6
above) and also communicated a note verbale with essentially the
same text to the Permanent Representative of Malaysia with the
request that it be presented formally to the competent Malaysian
court by the Government.

12. On 23 October and 21 November 1997, new plaintiffs filed
70

12

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

a third and fourth lawsuit against the Special Rapporteur for
M$100 million (US$40 million) and M$60 million (US$24 million)
respectively. On 27 October and 22 November 1997, the Secretary-
General issued identical certificates of the Special Rapporteur’s
immunity.

13. On 7 November 1997, the Secretary-General advised the Prime
Minister of Malaysia that a difference might have arisen between the
United Nations and the Government of Malaysia and about the
possibility of resorting to the International Court of Justice pursuant
to Section 30 of the Convention. Nonetheless on 19 February 1998,
the Federal Court of Malaysia denied Mr. Cumaraswamy’s applica-
tion for leave to appeal stating that he is neither a sovereign nor a
full-fledged diplomat but merely ‘an unpaid, part-time provider of
information’.

14. The Secretary-General then appointed a Special Envoy,
Maitre Yves Fortier of Canada, who, on 26 and 27 February 1998,
undertook an official visit to Kuala Lumpur to reach an agreement
with the Government of Malaysia on a joint submission to the Inter-
national Court of Justice. Following that visit, on 13 March 1998 the
Minister for Foreign Affairs of Malaysia informed the Secretary-
General’s Special Envoy of his Government’s desire to reach an out-
of-court settlement. In an effort to reach such a settlement, the
Office of Legal Affairs proposed the terms of such a settlement on
23 March 1998 and a draft settlement agreement on 26 May 1998.
Although the Government of Malaysia succeeded in staying pro-
ceedings in the four lawsuits until September 1998, no final settle-
ment agreement was concluded. During this period, the Government
of Malaysia insisted that, in order to negotiate a settlement, Maitre
Fortier must return to Kuala Lumpur. While Maitre Fortier pre-
ferred to undertake the trip only once a preliminary agreement
between the parties had been reached, nonetheless, based on the
Prime Minister of Malaysia’s request that Maitre Fortier return as
soon as possible, the Secretary-General requested his Special Envoy
to do so.

15. Maitre Fortier undertook a second official visit to Kuala
Lumpur, from 25 to 28 July 1998, during which he concluded that
the Government of Malaysia was not going to participate either in
settling this matter or in preparing a joint submission to the current
session of the Economic and Social Council. The Secretary-Gen-
eral’s Special Envoy therefore advised that the matter should be
referred to the Council to request an advisory opinion from the
International Court of Justice. The United Nations had exhausted
all efforts to reach either a negotiated settlement or a joint submis-
sion through the Council to the International Court of Justice. In
this connection, the Government of Malaysia has acknowledged the
Organization’s right to refer the matter to the Council to request an
advisory opinion in accordance with Section 30 of the Convention,
71 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

advised the Secretary-General’s Special Envoy that the United
Nations should proceed to do so, and indicated that, while it will
make its own presentations to the International Court of Justice, it
does not oppose the submission of the matter to that Court through
the Council.”

*

11. The dossier of documents submitted to the Court by the Secretary-
General (see paragraph 5 above) contains the following additional infor-
mation that bears on an understanding of the request to the Court.

12. The article published in the November 1995 issue of International
Commercial Litigation, which is referred to in paragraph 5 of the fore-
going note by the Secretary-General, was written by David Samuels and
entitled “Malaysian Justice on Trial”. The article gave a critical appraisal
of the Malaysian judicial system in relation to a number of court deci-
sions. Various Malaysian lawyers were interviewed; as quoted in the
article, they expressed their concern that, as a result of these decisions,
foreign investors and manufacturers might lose the confidence they
had always had in the integrity of the Malaysian judicial system.

13. It was in this context that Mr. Cumaraswamy, who was referred to
in the article more than once in his capacity as the United Nations Spe-
cial Rapporteur on the Independence of Judges and Lawyers, was asked
to give his comments. With regard to a specific case (the Ayer Molek
case), he said that it looked like “a very obvious, perhaps even glaring
example of judge-choosing”, although he stressed that he had not fin-
ished his investigation.

Mr. Cumaraswamy is also quoted as having said:

“Complaints are rife that certain highly placed personalities in the
business and corporate sectors are able to manipulate the Malaysian
system of justice.”

He added: “But I do not want any of the people involved to think I have
made up my mind.” He also said:

“It would be unfair to name any names, but there is some concern
about this among foreign businessmen based in Malaysia, particu-
larly those who have litigation pending.”

14. On 18 December 1995, two commercial firms and their legal coun-
sel addressed letters to Mr. Cumaraswamy in which they maintained that
they were defamed by Mr. Cumaraswamy’s statements in the article,
since it was clear, they claimed, that they were being accused of corrup-
tion in the Ayer Molek case. They informed Mr. Cumaraswamy that they

had “no choice but to issue defamation proceedings against him” and
added

13
72 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

“It is important that all steps are taken for the purpose of miti-
gating the continuing damage being done to [our] business and com-
mercial reputations which is worldwide, as quickly and effectively as
possible.”

15. On 28 December 1995, in view of the foregoing letters, the Secre-
tariat of the United Nations issued a Note Verbale to the Permanent
Mission of Malaysia in Geneva, requesting that the competent Malaysian
authorities be advised, and that they in turn advise the Malaysian courts,
of the Special Rapporteur’s immunity from legal process. This was the
first in a series of similar communications, containing the same finding,
sent by or on behalf of the Secretary-General — some of which were sent
once court proceedings had been initiated (see paragraphs 6 ef seg. of the
note by the Secretary-General, reproduced in paragraph 10 above).

16. On 12 December 1996, the two commercial firms issued a writ of
summons and statement of claim against Mr. Cumaraswamy in the High
Court of Kuala Lumpur. They claimed damages, including exemplary
damages, for slander and libel, and requested an injunction to restrain
Mr. Cumaraswamy from further defaming the plaintiffs.

17. As stated in the note of the Secretary-General, quoted in para-
graph 10 above, three further lawsuits flowing from Mr. Cumaraswamy’s
statements to International Commercial Litigation were brought against
him.

The Government of Malaysia did not transmit to its courts the texts
containing the Secretary-General’s finding that Mr. Cumaraswamy was
entitled to immunity from legal process.

The High Court of Kuala Lumpur did not pass upon Mr. Cumara-
swamy’s immunity in limine litis, but held that it had jurisdiction to hear
the case before it on the merits, including making a determination of
whether Mr. Cumaraswamy was entitled to any immunity. This decision
was upheld by both the Court of Appeal and the Federal Court of
Malaysia.

18. As indicated in paragraph 4 of the above note by the Secretary-
General, the Special Rapporteur made regular reports to the Commission
on Human Rights (hereinafter called the “Commission’”).

In his first report (E/CN.4/1995/39), dated 6 February 1995, Mr.
Cumaraswamy did not refer to contacts with the media. In resolution
1995/36 of 3 March 1995, the Commission welcomed this report and took
note of the methods of work described therein in paragraphs 63 to 93.

In his second report (E/CN.4/1996/37), dated 1 March 1996, the Spe-
cial Rapporteur referred to the Ayer Molek case and to a critical press
statement made by the Bar Council of Malaysia on 21 August 1995. The

14
73 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

report also included the following quotation from a press statement
issued by Mr. Cumaraswamy on 23 August 1995:

“Complaints are rife that certain highly placed personalities in
Malaysia including those in business and corporate sectors are
manipulating the Malaysian system of justice and thereby under-
mining the due administration of independent and impartial justice
by the courts.

Under the mandate entrusted to me by the United Nations Com-
mission on Human Rights, I am duty bound to investigate these
complaints and report to the same Commission, if possible at its
fifty-second session next year. To facilitate my inquiries I will seek
the cooperation of all those involved in the administration of justice,
including the Government which, under my mandate, is requested to
extend its cooperation and assistance.”

In resolution 1996/34 of 19 April 1996, the Commission took note of this
report and of the Special Rapporteur’s working methods.

In his third report (E/CN.4/1997/32), dated 18 February 1997, the Spe-
cial Rapporteur informed the Commission of the article in /nternational
Commercial Litigation and the lawsuits that had been initiated against
him, the author, the publisher, and others. He also referred to the nott-
fications of the Legal Counsel of the United Nations to the Malaysian
authorities. In resolution 1997/23 of 11 April 1997, the Commission took
note of the report and the working methods of the Special Rapporteur,
and extended his mandate for another three years.

In his fourth report (E/CN.4/1998/39), dated 12 February 1998, the
Special Rapporteur reported on further developments with regard to the
lawsuits initiated against him. In its resolution 1998/35 of 17 April 1998,
the Commission similarly took note of this report and of the working
methods reflected therein.

*

19. As indicated above (see paragraph 1), the note by the Secretary-
General was accompanied by an addendum (E/1998/94/Add.1) which
reads as follows:

“In paragraph 14 of the note by the Secretary-General on the
privileges and immunities of the Special Rapporteur of the Commis-
sion on Human Rights on the independence of judges and lawyers
(E/1998/94), it is reported that the ‘Government of Malaysia suc-
ceeded in staying proceedings in the four lawsuits until September
1998’. In this connection, the Secretary-General has been informed
that on 1 August 1998, Dato’ Param Cumaraswamy was served with
a Notice of Taxation and Bill of Costs dated 28 July 1998 and signed
by the Deputy Registrar of the Federal Court notifying him that the

15
74

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

bill of costs of the Federal Court application would be assessed on
18 September 1998. The amount claimed is M$310,000 (US$77,500).
On the same day, Dato’ Param Cumaraswamy was also served with
a Notice dated 29 July 1998 and signed by the Registrar of the Court
of Appeal notifying him that the Plaintiffs bill of costs would be
assessed on 4 September 1998. The amount claimed in that bill is
M$550,000 (US$137,500).”

* Ox

20. The Council considered the note by the Secretary-General (E/1998/

94) at the forty-seventh and forty-eighth meetings of its substantive ses-
sion of 1998, held on 31 July 1998. At that time, the Observer for Malay-
sia disputed certain statements in paragraphs 7, 14 and 15 of the note.
The note concluded with a paragraph 21 containing the Secretary-
General’s proposal for two questions to be submitted to the Court for
an advisory opinion:

“21...

‘Considering the difference that has arisen between the United
Nations and the Government of Malaysia with respect to the
immunity from legal process of Mr. Dato” Param Cumaraswamy,
the United Nations Special Rapporteur of the Commission on
Human Rights on the Independence of Judges and Lawyers, in
respect of certain words spoken by him:

1. Subject only to Section 30 of the Convention on the Privi-
leges and Immunities of the United Nations, does the Secretary-
General of the United Nations have the exclusive authority to
determine whether words were spoken in the course of the per-
formance of a mission for the United Nations within the meaning
of Section 22 (b) of the Convention?

2. In accordance with Section 34 of the Convention, once the
Secretary-General has determined that such words were spoken in
the course of the performance of a mission and has decided to
maintain, or not to waive, the immunity from legal process, does
the Government of a Member State party to the Convention have
an obligation to give effect to that immunity in its national courts
and, if failing to do so, to assume responsibility for, and any costs,
expenses and damages arising from, any legal proceedings brought
in respect of such words?

999

On 5 August 1998, at its forty-ninth meeting, the Council considered and
adopted without a vote a draft decision submitted by its Vice-President
following informal consultations. After referring to Section 30 of the
General Convention, the decision requested the Court to give an advisory

16
75 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

opinion on the question formulated therein, and called upon the Govern-
ment of Malaysia to ensure that

“all judgements and proceedings in this matter in the Malaysian
courts are stayed pending receipt of the advisory opinion of the...
Court . . . , which shall be accepted as decisive by the parties”
(E/1998/L.49/Rev. 1).

At that meeting, the Observer for Malaysia reiterated his previous criti-
cism of paragraphs 7, 14 and 15 of the Secretary-General’s note, but
made no comment on the terms of the question to be put to the Court as
now formulated by the Council. On being so adopted, the draft became
decision 1998/297 (see paragraph 1 above).

* Ok

21. As regards events subsequent to the submission of the request for
an advisory opinion, and more precisely, the situation with regard to the
proceedings pending before the Malaysian courts, Malaysia has provided
the Court with the following information:

“the hearings on the question of stay in respect of three of the four
cases have been deferred until 9 February 1999 when they are due
again to be mentioned in court, and when the plaintiff will join
in requesting further postponements until this Court’s advisory
opinion has been rendered, and sufficient time has been given to all
concerned to consider its implications.

The position in the first of the four cases is the same, although it
is fixed for mention on 16 December [1998]. However, it will then be
treated in the same way as the other cases. As to cost, the require-
ment for the payment of costs by the defendant has also been stayed,
and that aspect of the case will be deferred and considered in the
same way.”

x * #

22. The Council has requested the present advisory opinion pursuant
to Article 96, paragraph 2, of the Charter of the United Nations. This
paragraph provides that organs of the United Nations, other than the
General Assembly or the Security Council,

“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”.

Article 65, paragraph 1, of the Statute of the Court states that

“[tlhe Court may give an advisory opinion on any legal question at

17
76 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

the request of whatever body may be authorized by or in accordance
with the Charter of the United Nations to make such a request”.

23. In its decision 1998/297, the Council recalls that General Assembly
resolution 89 (I) gave it authorization to request advisory opinions, and it
expressly makes reference to the fact

“that a difference has arisen between the United Nations and the
Government of Malaysia, within the meaning of Section 30 of the
Convention on the Privileges and Immunities of the United Nations,
with respect to the immunity from legal process of Dato’ Param
Cumaraswamy, the Special Rapporteur of the Commission on
Human Rights on the independence of judges and lawyers”.

24. This is the first time that the Court has received a request for an
advisory opinion that refers to Article VIII, Section 30, of the General
Convention, which provides that

“all differences arising out of the interpretation or application of the
present convention shall be referred to the International Court of
Justice, unless in any case it is agreed by the parties to have recourse
to another mode of settlement. If a difference arises between the
United Nations on the one hand and a Member on the other hand,
a request shall be made for an advisory opinion on any legal ques-
tion 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.”

25. This section provides for the exercise of the Court’s advisory func-
tion in the event of a difference between the United Nations and one of
its Members. In this case, such a difference exists, but that fact does not
change the advisory nature of the Court’s function, which is governed by
the terms of the Charter and of the Statute. As the Court stated in its
Advisory Opinion of 12 July 1973,

“the existence, in the background, of a dispute the parties to which
may be affected as a consequence of the Court’s opinion, does not
change the advisory nature of the Court’s task, which is to answer
the questions put to it...” (Application for Review of Judgement
No. 158 of the United Nations Administrative Tribunal, Advisory
Opinion, LC.J. Reports 1973, p. 171, para. 14).

Paragraph 2 of the Council’s decision requesting the advisory opinion
repeats expressis verbis the provision in Article VIII, Section 30, of the
General Convention that the Court’s opinion “shall be accepted as deci-
sive by the parties”. However, this equally cannot affect the nature of the
function carried out by the Court when giving its advisory opinion. As
the Court said in its Advisory Opinion of 23 October 1956, in a case
involving similar language in Article XII of the Statute of the Adminis-

18
77 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

trative Tribunal of the International Labour Organisation, such “deci-
sive” or “binding” effect

“goes beyond the scope attributed by the Charter and by the Statute
of the Court to an Advisory Opinion . . . It in no wise affects the way
in which the Court functions; that continues to be determined by its
Statute and its Rules. Nor does it affect the reasoning by which the
Court forms its Opinion or the content of the Opinion itself.” (Judg-
ments of the Administrative Tribunal of the ILO upon Complaints
Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 84.)

A distinction should thus be drawn between the advisory nature of the
Court’s task and the particular effects that parties to an existing dispute
may wish to attribute, in their mutual relations, to an advisory opinion of
the Court, which, “as such, . . . has no binding force” ({nterpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advi-
sory Opinion, I.C.J. Reports 1950, p. 71). These particular effects, extra-
neous to the Charter and the Statute which regulate the functioning of
the Court, are derived from separate agreements; in the present case
Article VII, Section 30, of the General Convention provides that “[tjhe
opinion given by the Court shall be accepted as decisive by the parties”.
That consequence has been expressly acknowledged by the United
Nations and by Malaysia.

*

26. The power of the Court to give an advisory opinion is derived from
Article 96, paragraph 2, of the Charter and from Article 65 of the Statute
(see paragraph 22 above). Both provisions require that the question form-
ing the subject-matter of the request should be a “legal question”. This
condition is satisfied in the present case, as all participants in the proceed-
ings have acknowledged, because the advisory opinion requested relates
to the interpretation of the General Convention, and to its application to
the circumstances of the case of the Special Rapporteur, Dato’ Param
Cumaraswamy. Thus the Court held in its Advisory Opinion of 28 May
1948 that “[tlo determine the meaning of a treaty provision . . . is a prob-
lem of interpretation and consequently a legal question” (Conditions of
Admission of a State to Membership in the United Nations (Article 4 of
the Charter), Advisory Opinion, 1948, I C.J. Reports 1947-1948, p. 61).

27. Article 96, paragraph 2, of the Charter also requires that the legal
questions forming the subject-matter of advisory opinions requested by
authorized organs of the United Nations and specialized agencies shall
arise “within the scope of their activities”. The fulfilment of this condi-
tion has not been questioned by any of the participants in the present
proceedings. The Court finds that the legal questions submitted by the
Council in its request concern the activities of the Commission, since they
relate to the mandate of its Special Rapporteur appointed

19
78 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

“to inquire into substantial allegations concerning, and to identify
and record attacks on, the independence of the judiciary, lawyers
and court officials”.

Mr. Cumaraswamy’s activities as Rapporteur and the legal questions
arising therefrom are pertinent to the functioning of the Commission;
accordingly they come within the scope of activities of the Council, since
the Commission is one of its subsidiary organs. The same conclusion was
reached by the Court in an analogous case, in its Advisory Opinion of
15 December 1989, also given at the request of the Council, regarding the
Applicability of Article VI, Section 22, of the Convention on the Privi-
leges and Immunities of the United Nations (1 C.J. Reports 1989, p. 187,
para. 28).

*

28. As the Court held in its Advisory Opinion of 30 March 1950, the
permissive character of Article 65 of the Statute “gives the Court the
power to examine whether the circumstances of the case are of such a
character as should lead it to decline to answer the Request” (/nterpreta-
tion of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, 1 C.J. Reports 1950, p. 72). Such discretionary power
does not exist when the Court is not competent to answer the question
forming the subject-matter of the request, for example because it is not a
“legal question”. In such a case, “the Court has no discretion in the mat-
ter; it must decline to give the opinion requested” (Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I. C.J. Reports 1962, p. 155; cf. Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, 1 C.J. Reports 1996 (I), p. 73,
para. 14). However, the Court went on to state, in its Advisory Opinion
of 20 July 1962, that “even if the question is a legal one, which the Court
is undoubtedly competent to answer, it may nonetheless decline to do so”
(LC.J. Reports 1962, p. 155).

29. In its Advisory Opinion of 30 March 1950, the Court made it clear
that, as an organ of the United Nations, its answer to a request for an
advisory opinion “represents its participation in the activities of the
Organization, and, in principle, should not be refused” (/nterpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advi-
sory Opinion, 1. C.J. Reports 1950, p. 71); moreover, in its Advisory
Opinion of 20 July 1962, citing its Advisory Opinion of 23 October 1956,
the Court stressed that “only ‘compelling reasons’ should lead it to refuse
to give a requested advisory opinion” (Certain Expenses of the United
Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion,
1 C.J. Reports 1962, p. 155). (See also, for example, Applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations, Advisory Opinion, C.J. Reports 1989, pp. 190-

20
79 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

191, para. 37; and Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 235, para. 14.)

30. In the present case, the Court, having established its jurisdiction,
finds no compelling reasons not to give the advisory opinion requested by
the Council. Moreover, no participant in these proceedings questioned
the need for the Court to exercise its advisory function in this case.

* *

31. Article 65, paragraph 2, of the Statute provides that

“[qJuestions upon which the advisory opinion of the Court is asked
shail be laid before the Court by means of a written request contain-
ing an exact statement of the question upon which an opinion is
required”.

In compliance with this requirement, the Secretary-General transmitted
to the Court the text of the Council’s decision, paragraph 1 of which
reads as follows:

“1. Requests on a priority basis, pursuant to Article 96, para-
graph 2, of the Charter of the United Nations and in accordance
with General Assembly resolution 89 (1), an advisory opinion from
the International Court of Justice on the legal question of the appli-
cability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations in the case of Dato’ Param
Cumaraswamy as Special Rapporteur of the Commission on Human
Rights on the independence of judges and lawyers, taking into
account the circumstances set out in paragraphs 1 to 15 of the note
by the Secretary-General, and on the legal obligations of Malaysia in
this case.”

32. Malaysia has asserted to the Court that it had “at no time approved
the text of the question that appeared in E/1998/L.49 or as eventually
adopted by ECOSOC and submitted to the Court” and that it “never did
more than ‘take note’ of the question as originally formulated by the Sec-
retary-General and submitted to the ECOSOC in document E/1998/94”.
It contends that the advisory opinion of the Court should be restricted to
the existing difference between the United Nations and Malaysia. In
Malaysia’s view, this difference relates to the question (as formulated by
the Secretary-General himself (see paragraph 20 above)) of whether the
latter has the exclusive authority to determine whether acts of an expert
(including words spoken or written) were performed in the course of his
or her mission. Thus, in the conclusion to the revised version of its writ-
ten statement, Malaysia states, inter alia, that it

“considers that the Secretary-General of the United Nations has not
been vested with the exclusive authority to determine whether words

21
80 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

were spoken in the course of the performance of a mission for the
United Nations within the meaning of Section 22 (b) of the Conven-
tion”.

In its oral pleadings, Malaysia maintained that

“in implementing Section 30, ECOSOC is merely a vehicle for
placing a difference between the Secretary-General and Malaysia
before the Court. ECOSOC does not have an independent posi-
tion to assert as it might have had were it seeking an opinion on
some legal question other than in the context of the operation of
Section 30. ECOSOC .. . is no more than an instrument of reference,
it cannot change the nature of the difference or alter the content
of the question.”

33. In the written statement presented on behalf of the Secretary-
General, the Legal Counsel of the United Nations requested the Court

“to establish that, subject to Article VIII, Sections 29 and 30 of the
Convention, the Secretary-General has exclusive authority to deter-
mine whether or not words or acts are spoken, written or done in the
course of the performance of a mission for the United Nations and
whether such words or acts fall within the scope of the mandate
entrusted to a United Nations expert on mission”.

In this submission, it has also been argued

“that such matters cannot be determined by, or adjudicated in, the
national courts of the Member States parties to the Convention. The
latter position is coupled with the Secretary-General’s right and
duty, in accordance with the terms of Article VI, Section 23, of the
Convention, to waive the immunity where, in his opinion, it would
impede the course of justice and it can be waived without prejudice
to the interests of the United Nations.”

34. The other States participating in the present proceedings have
expressed varying views on the foregoing issue of the exclusive authority
of the Secretary-General.

*

35. As the Council indicated in the preamble to its decision 1998/297,
that decision was adopted by the Council on the basis of the note sub-
mitted by the Secretary General on “Privileges and Immunities of the
Special Rapporteur of the Commission on Human Rights on the Inde-
pendence of Judges and Lawyers” (see paragraph | above). Paragraph |
of the operative part of the decision refers expressly to paragraphs | to 15
of that note but not to paragraph 21, containing the two questions that
the Secretary-General proposed submitting to the Court (see para-

22
81 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

graph 20 above). The Court would point out that the wording of the
question submitted by the Council is quite different from that proposed
by the Secretary-General.

36. Participants in these proceedings have advanced differing views as
to what is the legal question to be answered by the Court. The Court
observes that it is for the Council — and not for a member State nor for
the Secretary-General — to formulate the terms of a question that the
Council wishes to ask.

37. The Council adopted its decision 1998/297 without a vote. The
Council did not pass upon any proposal that the question to be submit-
ted to the Court should include, still less be confined to, the issue of the
exclusive authority of the Secretary-General to determine whether or not
acts (including words spoken or written) were performed in the course of
a mission for the United Nations and whether such words or acts fall
within the scope of the mandate entrusted to an expert on mission for the
United Nations. Although the Summary Records of the Council do not
expressly address the matter, it is clear that the Council, as the organ
entitled to put the request to the Court, did not adopt the questions set
forth at the conclusion of the note by the Secretary-General, but instead
formulated its own question in terms which were not contested at that
time (see paragraph 20 above). Accordingly, the Court will now answer
the question as formulated by the Council.

*
* *

38. The Court will initially examine the first part of the question laid
before the Court by the Council, which is:

“the legal question of the applicability of Article VI, Section 22, of
the Convention on the Privileges and Immunities of the United
Nations in the case of Dato’ Param Cumaraswamy as Special Rap-
porteur of the Commission on Human Rights on the independence
of judges and lawyers, taking into account the circumstances set out
in paragraphs 1 to 15 of the note by the Secretary-General . . .”

39. From the deliberations which took place in the Council on the
content of the request for an advisory opinion, it is clear that the refer-
ence in the request to the note of the Secretary-General was made in
order to provide the Court with the basic facts to which to refer in mak-
ing its decision. The request of the Council therefore does not only per-
tain to the threshold question whether Mr. Cumaraswamy was and is an
expert on mission in the sense of Article VI, Section 22, of the General
Convention but, in the event of an affirmative answer to this question, to
the consequences of that finding in the circumstances of the case.

*

23
82 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

40. Pursuant to Article 105 of the Charter of the United Nations:

“1. The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the ful-
filment of its purposes.

2. Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their
functions in connexion with the Organization.

3. The General Assembly may make recommendations with a
view to determining the details of the application of paragraphs |
and 2 of this Article or may propose conventions to the Members of
the United Nations for this purpose.”

Acting in accordance with Article 105 of the Charter, the General Assem-
bly approved the General Convention on 13 February 1946 and pro-
posed it for accession by each Member of the United Nations. Malaysia
became a party to the General Convention, without reservation, on
28 October 1957.

41. The General Convention contains an Article VI entitled “Experts
on Missions for the United Nations”. It is comprised of two Sections (22
and 23). Section 22 provides:

“Experts (other than officials coming within the scope of Ar-
ticle V) performing missions for the United Nations shall be accorded
such privileges and immunities as are necessary for the independent
exercise of their functions during the period of their missions,
including time spent on journeys in connection with their missions.
In particular they shall be accorded:

(b) in respect of words spoken or written and acts done by them in
the course of the performance of their mission, immunity from
legal process of every kind. This immunity from legal process
shall continue to be accorded notwithstanding that the persons
concerned are no longer employed on missions for the United
Nations.

»

42, In its Advisory Opinion of 14 December 1989 on the Applicability
of Article VI, Section 22, of the Convention on the Privileges and Immu-
nities of the United Nations, the Court examined the applicability of Sec-
tion 22 ratione personae, ratione temporis and ratione loci.

In this context the Court stated:

“The purpose of Section 22 is . .. evident, namely, to enable the
United Nations to entrust missions to persons who do not have the
status of an official of the Organization, and to guarantee them ‘such
privileges and immunities as are necessary for the independent exer-

24
83 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

cise of their functions’... . The essence of the matter lies not in their
administrative position but in the nature of their mission.” (1 C.J.
Reports 1989, p. 194, para. 47.)

In that same Advisory Opinion, the Court concluded that a Special Rap-
porteur who is appointed by the Sub-Commission on Prevention of Dis-
crimination and Protection of Minorities and is entrusted with a research
mission must be regarded as an expert on mission within the meaning of
Article VI, Section 22, of the General Convention (ibid., p. 197, para. 55).

43. The same conclusion must be drawn with regard to Special Rap-
porteurs appointed by the Human Rights Commission, of which the Sub-
Commission is a subsidiary organ. It may be observed that Special Rap-
porteurs of the Commission usually are entrusted not only with a research
mission but also with the task of monitoring human rights violations and
reporting on them. But what is decisive is that they have been entrusted
with a mission by the United Nations and are therefore entitled to the
privileges and immunities provided for in Article VI, Section 22, that
safeguard the independent exercise of their functions.

44. By a letter of 21 April 1994, the Chairman of the Commission
informed the Assistant Secretary-General for Human Rights of Mr.
Cumaraswamy’s appointment as Special Rapporteur. The mandate of
the Special Rapporteur is contained in resolution 1994/41 of the Commis-
sion entitled “Independence and Impartiality of the Judiciary, Jurors and
Assessors and the Independence of Lawyers”. This resolution was
endorsed by the Council in its decision 1994/251 of 22 July 1994. The
Special Rapporteur’s mandate consists of the following tasks:

“(a} to inquire into any substantial allegations transmitted to him
or her and report his or her conclusions thereon;

(b) to identify and record not only attacks on the independence of
the judiciary, lawyers and court officials but also progress
achieved in protecting and enhancing their independence, and
make concrete recommendations, including accommodations
for the provision of advisory services or technical assistance
when they are requested by the State concerned;

(c) to study, for the purpose of making proposals, important and *
topical questions of principle with a view to protecting and
enhancing the independence of the judiciary and lawyers”.

45. The Commission extended by resolution 1997/23 of 11 April 1997
the Special Rapporteur’s mandate for a further period of three years.

In the light of these circumstances, the Court finds that Mr. Cumara-
swamy must be regarded as an expert on mission within the meaning of
Article VI, Section 22, as from 21 April 1994, that by virtue of this capa-

25
84 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

city the provisions of this Section were applicable to him at the time of
his statements at issue, and that they continue to be applicable.

46. The Court observes that Malaysia has acknowledged that Mr.
Cumaraswamy, as Special Rapporteur of the Commission, is an expert
on mission and that such experts enjoy the privileges and immunities pro-
vided for under the General Convention in their relations with States
parties, including those of which they are nationals or on the territory of
which they reside. Malaysia and the United Nations are in full agreement
on these points, as are the other States participating in the proceedings.

2

47. The Court will now consider whether the immunity provided for in
Section 22 (b) applies to Mr. Cumaraswamy in the specific circumstances
of the case; namely, whether the words used by him in the interview, as
published in the article in International Commercial Litigation (Novem-
ber issue 1995), were spoken in the course of the performance of his mis-
sion, and whether he was therefore immune from legal process with
respect to these words.

48. During the oral proceedings, the Solicitor General of Malaysia
contended that the issue put by the Council before the Court does not
include this question. She stated that the correct interpretation of the
words used by the Council in its request

“does not extend to inviting the Court to decide whether, assuming
the Secretary-General to have had the authority to determine the
character of the Special Rapporteur’s action, he had properly exer-
cised that authority”

and added:

“Malaysia observes that the word used was ‘applicability’ not
‘application’. ‘Applicability’ means ‘whether the provision is appli-
cable to someone’ not ‘how it is to be applied’.”

49. The Court does not share this interpretation. It follows from the
terms of the request that the Council wishes to be informed of the Court’s
opinion as to whether Section 22 (b) is applicable to the Special Rap-
porteur, in the circumstances set out in paragraphs 1 to 15 of the note of
the Secretary-General and whether, therefore, the Secretary-General’s
finding that the Special Rapporteur acted in the course of the perform-
ance of his mission is correct.

50. In the process of determining whether a particular expert on mis-
sion is entitled, in the prevailing circumstances, to the immunity provided
for in Section 22 (b), the Secretary-General of the United Nations has a
pivotal role to play. The Secretary-General, as the chief administrative
officer of the Organization, has the authority and the responsibility to
exercise the necessary protection where required. This authority has been
recognized by the Court when it stated:

26
85 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

“Upon examination of the character of the functions entrusted to
the Organization and of the nature of the missions of its agents, it
becomes clear that the capacity of the Organization to exercise a
measure of functional protection of its agents arises by necessary
intendment out of the Charter.” (Reparation for Injuries Suffered in
the Service of the United Nations, Advisory Opinion, 1 C.J. Reports
1949, p. 184.)

51. Article VI, Section 23, of the General Convention provides that
“[plrivileges and immunities are granted to experts in the interests of the
United Nations and not for the personal benefit of the individuals them-
selves”. In exercising protection of United Nations experts, the Secretary-
General is therefore protecting the mission with which the expert is
entrusted. In that respect, the Secretary-General has the primary respon-
sibility and authority to protect the interests of the Organization and its
agents, including experts on mission. As the Court held:

“In order that the agent may perform his duties satisfactorily, he
must feel that this protection is assured to him by the Organization,
and that he may count on it. To ensure the independence of the
agent, and, consequently, the independent action of the Organi-
zation itself, it is essential that in performing his duties he need
not have to rely on any other protection than that of the Organiza-
tion...” (/bid., p. 183.)

52. The determination whether an agent of the Organization has acted
in the course of the performance of his mission depends upon the facts of
a particular case. In the present case, the Secretary-General, or the Legal
Counsel of the United Nations on his behalf, has on numerous occasions
informed the Government of Malaysia of his finding that Mr. Cumara-
swamy had spoken the words quoted in the article in International Com-
mercial Litigation in his capacity as Special Rapporteur of the Commis-
sion and that he consequently was entitled to immunity from “every
kind” of legal process.

53. As is clear from the written and oral pleadings of the United
Nations, the Secretary-General was reinforced in this view by the fact
that it has become standard practice of Special Rapporteurs of the Com-
mission to have contact with the media. This practice was confirmed by
the High Commissioner for Human Rights who, in a letter dated 2 Octo-
ber 1998, included in the dossier, wrote that: “it is more common than
not for Special Rapporteurs to speak to the press about matters pertain-
ing to their investigations, thereby keeping the general public informed of
their work”.

54. As noted above (see paragraph 13), Mr. Cumaraswamy was expli-
citly referred to several times in the article “Malaysian Justice on Trial”
in International Commercial Litigation in his capacity as United Nations
Special Rapporteur on the Independence of Judges and Lawyers. In his
reports to the Commission (see paragraph 18 above), Mr. Cumaraswamy

27
86 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

had set out his methods of work, expressed concern about the independ-
ence of the Malaysian judiciary, and referred to the civil lawsuits initiated
against him. His third report noted that the Legal Counsel of the United
Nations had informed the Government of Malaysia that he had spoken
in the performance of his mission and was therefore entitled to immunity
from legal process.

55. As noted in paragraph 18 above, in its various resolutions the
Commission took note of the Special Rapporteur’s reports and of his
methods of work. In 1997, it extended his mandate for another three
years (see paragraphs 18 and 45 above). The Commission presumably
would not have so acted if it had been of the opinion that Mr. Cumara-
swamy had gone beyond his mandate and had given the interview to
International Commercial Litigation outside the course of his functions.
Thus the Secretary-General was able to find support for his findings in
the Commission’s position.

56. The Court is not called upon in the present case to pass upon the
aptness of the terms used by the Special Rapporteur or his assessment of
the situation. In any event, in view of all the circumstances of this case,
elements of which are set out in paragraphs 1 to 15 of the note by the
Secretary-General, the Court is of the opinion that the Secretary-General
correctly found that Mr. Cumaraswamy, in speaking the words quoted in
the article in International Commercial Litigation, was acting in the
course of the performance of his mission as Special Rapporteur of the
Commission. Consequently, Article VI, Section 22 (6), of the General
Convention is applicable to him in the present case and affords Mr.
Cumaraswamy immunity from legal process of every kind.

* *

57. The Court will now deal with the second part of the Council’s
question, namely, “the legal obligations of Malaysia in this case”.

58. Malaysia maintains that it is premature to deal with the question
of its obligations. It is of the view that the obligation to ensure that the
requirements of Section 22 of the Convention are met is an obligation of
result and not of means to be employed in achieving that result. It further
states that Malaysia has complied with its obligation under Section 34 of
the General Convention, which provides that a party to the Convention
must be “in a position under its own law to give effect to [its] terms”, by
enacting the necessary legislation; finally it contends that the Malaysian
courts have not yet reached a final decision as to Mr. Cumaraswamy’s
entitlement to immunity from legal process.

59. The Court wishes to point out that the request for an advisory
opinion refers to “the legal obligations of Malaysia in this case”. The dif-
ference which has arisen between the United Nations and Malaysia origi-
nated in the Government of Malaysia not having informed the competent

28
87 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

Malaysian judicial authorities of the Secretary-General’s finding that
Mr. Cumaraswamy had spoken the words at issue in the course of the
performance of his mission and was, therefore, entitled to immunity
from legal process (see paragraph 17 above). It is as from the time of this
omission that the question before the Court must be answered.

60. As the Court has observed, the Secretary-General, as the chief
administrative officer of the Organization, has the primary responsibility
to safeguard the interests of the Organization; to that end, it is up to him
to assess whether its agents acted within the scope of their functions and,
where he so concludes, to protect these agents, including experts on mis-
sion, by asserting their immunity. This means that the Secretary-General
has the authority and responsibility to inform the Government of a mem-
ber State of his finding and, where appropriate, to request it to act
accordingly and, in particular, to request it to bring his finding to the
knowledge of the local courts if acts of an agent have given or may give
rise to court proceedings.

61. When national courts are seised of a case in which the immunity of
a United Nations agent is in issue, they should immediately be notified of
any finding by the Secretary-General concerning that immunity. That
finding, and its documentary expression, creates a presumption which
can only be set aside for the most compelling reasons and is thus to be
given the greatest weight by national courts.

The governmental authorities of a party to the General Convention are
therefore under an obligation to convey such information to the national
courts concerned, since a proper application of the Convention by them
is dependent on such information.

Failure to comply with this obligation, among others, could give rise to
the institution of proceedings under Article VIII, Section 30, of the Gen-
eral Convention,

62. The Court concludes that the Government of Malaysia had an
obligation, under Article 105 of the Charter and under the General Con-
vention, to inform its courts of the position taken by the Secretary-Gen-
eral. According to a well-established rule of international law, the con-
duct of any organ of a State must be regarded as an act of that State.
This rule, which is of a customary character, is reflected in Article 6 of
the Draft Articles on State Responsibility adopted provisionally by the
International Law Commission on first reading, which provides:

“The conduct of an organ of the State shall be considered as an
act of that State under international law, whether that organ belongs
to the constituent, legislative, executive, judicial or other power,
whether its functions are of an international or an internal character,
and whether it holds a superior or a subordinated position in the
organization of the State.” (Yearbook of the International Law Com-
mission, 1973, Vol. II, p. 193.)

29
88 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

Because the Government did not transmit the Secretary-General’s finding
to the competent courts, and the Minister for Foreign Affairs did not
refer to it in his own certificate, Malaysia did not comply with the above-
mentioned obligation.

63. Section 22 (b) of the General Convention explicitly states that
experts on mission shall be accorded immunity from legal process of
every kind in respect of words spoken or written and acts done by them
in the course of the performance of their mission. By necessary implica-
tion, questions of immunity are therefore preliminary issues which must
be expeditiously decided in limine litis. This is a generally recognized
principle of procedural law, and Malaysia was under an obligation to
respect it. The Malaysian courts did not rule in limine litis on the immu-
nity of the Special Rapporteur (see paragraph 17 above), thereby nulli-
fying the essence of the immunity rule contained in Section 22 (b}. More-
over, costs were taxed to Mr. Cumaraswamy while the question of
immunity was still unresolved. As indicated above, the conduct of an
organ of a State — even an organ independent of the executive power —
must be regarded as an act of that State. Consequently, Malaysia did not
act in accordance with its obligations under international law.

*

64. In addition, the immunity from legal process to which the Court
finds Mr. Cumaraswamy entitled entails holding Mr. Cumaraswamy
financially harmless for any costs imposed upon him by the Malaysian
courts, in particular taxed costs.

*

65. According to Article VIII, Section 30, of the General Convention,
the opinion given by the Court shall be accepted as decisive by the parties
to the dispute. Malaysia has acknowledged its obligations under Sec-
tion 30.

Since the Court holds that Mr. Cumaraswamy is an expert on mission
who under Section 22 (6) is entitled to immunity from legal process, the
Government of Malaysia is obligated to communicate this advisory
opinion to the competent Malaysian courts, in order that Malaysia’s
international obligations be given effect and Mr. Cumaraswamy’s immu-
nity be respected.

a

66. Finally, the Court wishes to point out that the question of immu-
nity from legal process is distinct from the issue of compensation for any
damages incurred as a result of acts performed by the United Nations or
by its agents acting in their official capacity.

30
89 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

The United Nations may be required to bear responsibility for the
damage arising from such acts. However, as is clear from Article VIII,
Section 29, of the General Convention, any such claims against the
United Nations shall not be dealt with by national courts but shall be
settled in accordance with the appropriate modes of settlement that “[t]he
United Nations shall make provisions for” pursuant to Section 29.

Furthermore, it need hardly be said that all agents of the United
Nations, in whatever official capacity they act, must take care not to
exceed the scope of their functions, and should so comport themselves as
to avoid claims against the United Nations.

67. For these reasons,
THE COURT
Is of the opinion:
(1) (a) By fourteen votes to one,

That Article VI, Section 22, of the Convention on the Privi-
leges and Immunities of the United Nations is applicable in the
case of Dato’ Param Cumaraswamy as Special Rapporteur of
the Commission on Human Rights on the Independence of
Judges and Lawyers;

IN FAVOUR: President Schwebel; Vice-President Weeramantry ; Judges

Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,

Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judge Koroma;

(b) By fourteen votes to one,

That Dato’ Param Cumaraswamy is entitled to immunity
from legal process of every kind for the words spoken by him
during an interview as published in an article in the November
1995 issue of International Commercial Litigation;

IN FAVouR: President Schwebel; Vice-President Weeramantry; Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;
AGAINST: Judge Koroma;
(2) (a) By thirteen votes to two,
That the Government of Malaysia had the obligation to
inform the Malaysian courts of the finding of the Secretary-

31
90

(b)

IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

General that Dato’ Param Cumaraswamy was entitled to immu-
nity from legal process;

IN FAVOUR : President Schwebel; Vice-President Weeramantry; Judges
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek ;

AGAINST: Judges Oda, Koroma;
By fourteen votes to one,

That the Malaysian courts had the obligation to deal with the
question of immunity from legal process as a preliminary issue
to be expeditiously decided in limine litis;

IN FAVOUR: President Schwebel; Vice-President Weeramantry ; Judges

Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judge Koroma;

(3) Unanimously,

That Dato’ Param Cumaraswamy shall be held financially harm-
less for any costs imposed upon him by the Malaysian courts, in par-
ticular taxed costs;

(4) By thirteen votes to two,

That the Government of Malaysia has the obligation to commu-
nicate this Advisory Opinion to the Malaysian courts, in order that
Malaysia’s international obligations be given effect and Dato’ Param
Cumaraswamy’s immunity be respected;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judges Oda, Koroma.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-ninth day of April, one
thousand nine hundred and ninety-nine, in two copies, one of which
will be placed in the archives of the Court and the other transmitted to
the Secretary-General of the United Nations.

32

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OsPINA,
Registrar.
91 IMMUNITY FROM LEGAL PROCESS (ADVISORY OPINION)

Vice-President WEERAMANTRY and Judges ODA and REZEK append
separate opinions to the Advisory Opinion of the Court.

Judge Koroma appends a dissenting opinion to the Advisory Opinion
of the Court.

(Initialled) S.M.S.
(Initialled) E.V.O.

33