ECONOMIC AND SOCIAL COUNCIL RESUMES 1998 SUBSTANTIVE SESSION
Press Release
ECOSOC/5799
ECONOMIC AND SOCIAL COUNCIL RESUMES 1998 SUBSTANTIVE SESSION
19980805 Requests ICJ to Provide Advisory Opinion on Applicability of UN Privileges And Immunities Convention to Case of Human Rights Commission Special RapporteurThe Economic and Social Council this morning decided to request the International Court of Justice (ICJ) to provide, on a priority basis, an advisory opinion on the legal question of the applicability of a provision of the Convention on the Privileges and Immunities of the United Nations in the case of a Special Rapporteur of the Commission on Human Rights who has been sued for defamation in a Malaysian court.
By a decision, which was adopted without a vote as orally amended, the Council, meeting in a resumed substantive session, requested the World Court to determine the legal obligations of Malaysia in the case. It called upon the Government of Malaysia to ensure that all judgements and proceedings in the matter in the Malaysian courts were stayed pending receipt of the advisory opinion of the International Court of Justice, which shall be accepted as decisive by the parties.
The Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Param Cumaraswamy, a Malaysian jurist, is being sued by two commercial companies and a lawyer in Malaysia as a result of a published article based on an interview he gave in November 1995 to International Commercial Litigation, a magazine published in the United Kingdom but circulated also in Malaysia.
According to a note by the Secretary-General on the matter (document E/1998/94 and Add.1), Mr. Cumaraswamy in the magazine interview commented on certain litigations that had been carried out in Malaysian courts. The two companies asserted that the said article contained defamatory words that had "brought them into public scandal, odium and contempt".
The Convention on the Privileges and Immunities of the United Nations is designed to protect various categories of persons, including "Experts on Mission for the United Nations", from all types of interference by national authorities.
Before action on the draft decision (document E/1998/L.49), the representative of Cuba said that the text prejudged the presentation of the case before the Court. The reference to paragraphs 1 to 15 of the Secretary- General's note should be deleted or amended. Further, the Council should invite the Government of Malaysia, rather than call upon it, to stay proceedings in the matter pending receipt of the Court's opinion.
A lengthy discussion of Cuba's two proposals followed, in which the representative of Malaysia reiterated his delegation's prior intervention to the Council concerning three factual errors in the Secretary-General's note. (For details, see Press Release ECOSOC/5797 of 31 July.)
The Assistant Secretary-General for Legal Affairs, Ralph Zacklin, said that in the Secretary-General's view, it was extremely important that the reference to the circumstances of the case form part of the operative request to the Court. The Office of Legal Affairs did not believe that a reference to the circumstances, in the way it was phrased in the draft, would bind the other party in the case to that description. A deletion of the reference of the legal obligations of the Government of Malaysia, however, would strip the request to the ICJ of virtually all of its meaning. He also believed it was proper for the Council to request the Government of Malaysia by either "calling upon" or "inviting" it to stay its proceedings pending the decision of the Court.
Concerning the proposal to change the verb in the second operative paragraph from "calls upon" to "invites", a number of delegations expressed concern over the differing terms used in the Spanish and Arabic translations.
Following a five-minute suspension of the meeting to consider the proposals, the Council adopted the text, as orally amended. Among the amendments was language in operative paragraph 1 by which the Council would take 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."
The English version of the second operative paragraph would stand. By it, the Council "calls upon" the Government of Malaysia. That phrase would be amended to read "invites" in the Spanish and Arabic translations.
In other actions this morning, the Council adopted another decision by which it approved themes for its 1999 substantive session (document E/1998/L.47). For its high-level segment, the theme will be "The role of employment and work in poverty eradication: the empowerment and advancement of women"; and for the coordination segment, it will be "Development of Africa: implementation and coordinated follow-up by the United Nations system of initiatives on African development".
Economic and Social Council - 3 - Press Release ECOSOC/5799 49th Meeting (AM) 5 August 1998
The Council will resume its substantive session in the fall to consider a number of outstanding issues, including elections to the Commission on Science and Technology for Development (33 members); the Committee on Development Policy (formerly the Committee on Development Planning) (24 members to be nominated by the Secretary-General); and the newly formed Committee on Energy and Natural Resources (24 members).
The Council suspended its resumed session until a date to be announced in the Journal.
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