ICJ RECEIVES ECONOMIC AND SOCIAL COUNCIL REQUEST TO GIVE ADVISORY OPINION ON PRIVILEGES AND IMMUNITIES OF HUMAN RIGHTS SPECIAL RAPPORTEUR
Press Release
ECOSOC/5800
ICJ/557
ICJ RECEIVES ECONOMIC AND SOCIAL COUNCIL REQUEST TO GIVE ADVISORY OPINION ON PRIVILEGES AND IMMUNITIES OF HUMAN RIGHTS SPECIAL RAPPORTEUR
19980810 THE HAGUE, 10 August -- On 5 August, the Economic and Social Council, one of the six principal organs of the United Nations, requested the International Court of Justice (ICJ) to give an advisory opinion on a difference which has arisen between the United Nations and the Government of Malaysia out of the interpretation or application of the Convention of 13 February 1946 on the Privileges and Immunities of the United Nations.The request for an advisory opinion was received on 10 August by fax from the United Nations Secretary-General to the Registry of the Court. The Government of Malaysia has already indicated that it did not oppose the submission of the matter to the Court and that it would make its own presentations to the ICJ.
That convention is, among other issues, designed to protect various categories of persons at the service of the United Nations, including "Experts on Mission", from all types of interference by national authorities.
The present case relates to Param Cumaraswamy, a Malaysian jurist who was appointed Special Rapporteur on the independence of judges and lawyers in 1994 by the Commission on Human Rights, a subsidiary organ of the Council.
According to a note addressed on 27 July to the Council by Secretary- General Kofi Annan, Mr. Cumaraswamy currently faces four lawsuits filed in Malaysian courts by different plaintiffs for damages in a total amount of $112 million following an interview that he gave in November 1995 to International Commercial Litigation, a magazine published in the United Kingdom but circulated also in Malaysia. In that interview, he commented on certain litigations that had been carried out in Malaysian courts. The plaintiffs, among which commercial companies and a lawyer mentioned in the interview, assert that they were defamed by the words of Mr. Cumaraswamy.
In his note of 28 July, Mr. Annan stated that he considered it "most important" that the principle be accepted that it is for the Secretary-General alone to determine, with conclusive effect, whether an expert on mission has spoken or written words or performed an act in the course of his mission. He
contended that if national courts were to determine whether an expert enjoys immunity, this "would be certain to have a negative effect on the independence of officials and experts, who would then have to fear that at any time, whether they are still in office or after they had left it, they could be called to account in national courts, not necessarily their own, civilly or criminally, for their words spoken or written or acts performed as officials or experts".
After the first lawsuit was filed, the United Nations Legal Counsel, Hans Corell, acting on behalf of the Secretary-General, considered the circumstances of the interview and of the controverted passages of the article and determined that Mr. Cumaraswamy had spoken in his official capacity as Special Rapporteur. He stated that accordingly, by virtue of Section 22 of Article VI of the Convention on the Privileges and Immunities of the United Nations, Mr. Cumaraswamy was immune from legal process. On 15 January 1997, the Legal Counsel sent a note verbale to the Permanent Representative of Malaysia to the United Nations, requesting the competent Malaysian authorities "to promptly advise the Malaysia courts of the Special Rapporteur's immunity from legal process".
On 7 March 1997, the Secretary-General issued a note confirming that "the words which constitute the basis of plaintiff's complaint in this case were spoken by the Special Rapporteur in the course of his mission" and that he was "immune from legal process with respect thereto". Identical certificates of the Special Rapporteur's immunity were issued later when new lawsuits were filed. According to the Secretary-General, however, those notes did not lead to any appropriate intervention in the Malaysian courts of the Malaysian Government to ensure respect for Mr. Cumaraswamy's immunity, nor were they taken into account by those courts.
On 7 November 1997, Mr. Annan 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. He then appointed a Special Envoy, Yves Fortier of Canada, who undertook two official visits to Kuala Lumpur to reach either a negotiated settlement or a joint submission to the Court. During his last visit, from 25 to 28 July, Mr. Fortier concluded that the Government of Malaysia was not going to participate in any of those efforts and recommended that the matter should be referred to the Council to request an advisory opinion from the Court.
Section 30 of the Convention on the Privileges and Immunities of the United Nations provides that if a difference arises between the United Nations on the one hand and a Member State on the other hand, a request shall be made
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for an advisory opinion to the ICJ. The opinion given shall be accepted as decisive by the parties.
Accordingly, the Council adopted on 5 August a resolution calling for the Court to give, on a priority basis, an advisory opinion:
"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 lawyers, taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary- General, and on the legal obligation of Malaysia in this case".
The Economic and Social Council was authorized in 1946 by the General Assembly to request advisory opinions of the Court on legal questions arising within the scope of its activities. It is the second time that the Council makes use of this authorization.
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