Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [1999] ICJ Rep 62

Chanaka Wickremasinghe[1]

Relevance of the case

The Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights is one of the relatively few cases that have required the International Court of Justice to consider directly issues related to the immunity of an international organization (in this case the UN). It provides important guidance on how to delineate between activities that are pursued by the UN and its officials in an official capacity and are therefore entitled to immunity, and activities which are pursued in some other capacity and therefore are subject to national jurisdiction.

At a procedural level the case is significant as the first occasion on which the process of so-called ‘binding advisory opinions’ under art. VIII, Section 301 of the 1946 Convention on the Privileges and Immunities of the United Nations (General Convention) has been invoked, leading in itself to some interesting questions about the adaptation of the Court’s advisory jurisdiction to a more formal mode of dispute settlement.

I. Facts of the case

The case arose from a media interview given by Dato’ Param Cumaraswamy, a Malaysian lawyer and a Special Rapporteur on the ‘Independence of Judges and Lawyers’ to the UN Human Rights Commission. The Special Rapporteur was reported to point to a recent case before the Malaysian courts and saying that it appeared to be a case of ‘judge choosing’, but also adding that he had not yet made up his mind. As a result a number of companies in Malaysia made claims against the Special Rapporteur for defamation seeking very substantial sums by way of damages and exemplary damages against him.

The UN Secretary-General determined that, as a Special Rapporteur of the Human Rights Commission, Cumaraswamy was an expert on mission for the purposes of the

General Convention, and that since the media interview had been given by him in the performance of his mission on behalf the UN, he was entitled to immunity from legal process of any kind in accordance with art. VI, Section 22 of the Convention.[2] The Secretary-General informed the Government of Malaysia of this determination and asked that the Government advise the Malaysian courts of the Special Rapporteur’s immunity.

However, when the Special Rapporteur sought to have the claims against him struck out, the Government of Malaysia provided a certificate simply observing that he enjoyed immunity ‘only in respect of words spoken or written or acts done in the course of performance of his duties’. The Government made no mention of the Secretary-General’s determination that the interview in question had been in performance of his official mandate. The Malaysian courts found that the Secretary- General’s determination was only a statement of opinion, and that the question of the capacity in which the interview had been given, and therefore also the question of immunity, could be considered with the merits of the dispute. Effectively the Special Rapporteur would be forced to defend himself on the merits, before the question of immunity could be determined. This would of course be to deny much of the effectiveness of immunity, which provides its holder with a preliminary plea to bar immunity, without having to address the merits of a claim.

The UN Secretary-General therefore invoked the procedure under art. 30 of the General Convention, and advised the UN’s Economic and Social Council (ECOSOC) to make a request to the International Court of Justice for an advisory opinion[3] which would be decisive of the dispute as between the UN and Malaysia.

II. The legal question

The Secretary-General proposed that the broad question of principle be referred to the Court, that is whether the Secretary-General had exclusive authority to determine whether or not acts of officials and experts of the UN were performed in an official capacity and therefore immune. However, in the event, ECOSOC asked the ICJ to give an advisory opinion on the more focused question of the applicability of art. VI, Section 22 of the General Convention to the Special Rapporteur, and secondly on the legal obligations of Malaysia in this case.

In response to the legal question about the applicability of the General Convention in the context of the particular case, the answers urged by the various participants in their pleadings can be broadly categorized into three different approaches.

On the one hand, the UN, with support of some member states (notably Costa Rica, Germany, and Sweden), took the position of principle that the Secretary- General had the exclusive authority to determine whether the words or acts of UN officials and experts were spoken or done in performance of their official functions. For the Secretary-General the determination was one of fact, which he was in a unique position to make, and this was implicit in the scheme of the General Convention.

On the other hand Malaysia submitted that the Secretary-General’s approach was an unwarranted attempt to place limitations on both the executive authority of Malaysia and the jurisdiction of its courts. For Malaysia the issue was primarily a legal determination as to the scope of immunity, which, in line with the practice of other national courts and the writings of authors, was a matter for the national court to determine.

However a third group of states (namely Italy, the United Kingdom, and the US) urged a more nuanced approach. They recognized that the Secretary-General’s determination of whether a given act was official or not should be given full weight by the national court, but ultimately they submitted the extent of immunity was a legal question for determination by the national court. For those states in the group who addressed the merits, they urged the court to find that the Special Rapporteur was in fact immune in respect of what he said during the media interview in question.

III. Excerpts

  • 50. In the process of determining whether a particular expert on mission 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 [...]
  • 51. Article VI, Section 23, of the General Convention provides that ‘privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves’. 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 responsibility and authority to protect the interests of the Organization and its agents, including experts on mission. In that respect, the Secretary-General has the primary responsibility 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 Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization [. . .]’ (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, 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. Cumaraswamy had spoken the words quoted in the article in International Commercial Litigation in his capacity as Special Rapporteur of the Commission and that he consequently was entitled to immunity from ‘every kind’ of legal process [...]
  • 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 (b), 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’ [.]
  • 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 difference which has arisen between the United Nations and Malaysia originated in the Government of Malaysia not having informed the competent 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 mission, by asserting their immunity. This means that the Secretary-General has the authority and responsibility to inform the Government of a member 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 General Convention.

62. The Court concludes that the Government of Malaysia had an obligation, under Article 105 of the Charter and under the General Convention, to inform its courts of the position taken by the Secretary-General. According to a well-established rule of international law, the conduct of any organ of a state must be regarded as an act of that state [...]

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 implication, 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 immunity of the Special Rapporteur (see paragraph above), thereby nullifying the essence of the immunity rule contained in Section 22 (b). Moreover, 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 Section 30.

Since the Court holds that Mr. Cumaraswamy is an expert on mission who under Section 22 (b) 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 immunity be respected.

66. Finally, the Court wishes to point out that the question of immunity 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.

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.

IV. Commentary

The findings of the Court on the merits constitute a powerful vindication of the immunity of the UN and its officials. The rationale of that immunity is clearly set out as to enable the UN to achieve the performance of its internationally agreed functions independently of undue interference by national authorities. The immunity is therefore a vital technique for the UN, to achieve its ends in an international system that allocates jurisdiction primarily to sovereign states. For the main part, the allocation of jurisdiction relies on considerations of territoriality and nationality. By contrast an international organization will have to carry out its activities on the territory of a state, and through its officials and experts who will be linked to a state through the bond of nationality. Indeed the facts of the case are rather well illustrative of this, concerning the activities of a Malaysian Special Rapporteur, giving an interview pursuant to his mandate in Malaysia, and expressing his concerns about the functioning of the Malaysian courts.

On the other hand, implicit in the judgment is a concern for the rule of law, and in particular for ensuring accountability of the exercise of public power, as is of course appropriate for the principal judicial organ of the UN. Recognizing that there should be a proper balance between the broad public (international) interest and the individual case, the Court therefore did not answer the question as to who has ‘the final say’ on matters of immunity quite as the Secretary-General had argued. Instead it found that the Secretary-General’s views establish ‘a presumption, which can only be set aside by a national court for the most compelling reasons and is thus to be given the greatest weight by the national courts’.[4]

At a practical level, the advisory opinion provides important guidance to the national court in handling questions of immunity. In particular in this respect, the finding that there is requirement for questions of immunity to be dealt with in limine litis, which arises from the nature of immunity itself. In other words, since the purpose of immunity is to prevent any unwarranted interference that impinges on the functioning of the holder of the immunity, the issue of immunity when raised should be dealt with expeditiously at the outset of proceedings.

At the level of procedure, this is the first instance of a so-called ‘binding advisory opinion’ (i.e. an advisory opinion which the parties have accepted in advance as being ‘decisive’ of their difference).[5] It is interesting to note that despite the consent to the jurisdiction of the Court in this matter through art. 30 of the General Convention, and its invocation by ECOSOC, the Court nevertheless applied its usual criteria in deciding at the outset whether or not to comply with the request for an advisory opinion (cf. paras 24-30). In particular it might be noted that one of these criteria stresses the institutional link between the Court and the UN, and that answering a request for an advisory opinion represents the Court’s participation in the activities of the

Organization.[6] This statement of course cannot take away from the judicial nature or function of the Court, but perhaps in providing a binding resolution of a difference between the UN and a member state, it is not so much the Court’s institutional links with the UN that should be the focus, as the consent of the parties to the Court’s process.[7]

The advisory opinion also points out a potential procedural tension in the process, in that the question put to the Court by ECOSOC was slightly different from the question of principle which the primary parties wished to address. In the event the Court was able to address both aspects in this case satisfactorily, but it is perhaps an issue to be borne in mind when seizing the Court in this way in future cases.

  • [1] Legal Counsellor, Foreign and Commonwealth Office. This article is written in his personal capacity.i ‘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 partiesto have recourse to another mode of settlement. If a difference arises between the United Nations on theone hand and a Member on the other hand, a request shall be made for an advisory opinion on any legalquestion involved in accordance with Article 96 of the Charter and Article 65 of the Statue of the Court.The opinion given by the Court shall be accepted as decisive by the parties.’ The use of the advisory jurisdiction of the Court is necessary in this respect since only states may be parties before the Court underits contentious jurisdiction (see art. 34 of the Statute of the International Court of Justice).
  • [2] Section 22. Experts (other than officials coming within the scope of article V) performing missionsfor 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 the time spent on journeys in connection with their missions. In particular they shall be accorded [...] (b) in respect of wordsspoken or written and acts done by them in the course of the performance of their mission, immunityfrom 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] The Secretary-General is not empowered to request advisory opinions of the Court, for discussionsee S. Rosenne, The Law and Practice of the International Court, 1920-2005, (4th edn, 2006), pp. 326-7.
  • [4] cf. Advisory Opinion, para. 61.
  • [5] cf. R. Ago ‘“Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 AmericanJournal of International Law 439; see also Rosenne (n. 3), p. 77, fn. 7.
  • [6] In this respect the Court frequently refers to its statement to this effect in its Advisory Opinion onInterpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, [1950] ICJ Rep 71.
  • [7] On a related note, Rosenne suggests that the present advisory opinion was in relation to a ‘“normal”bilateral dispute between the United Nations, represented by the Secretary-General, and Malaysia’, andqueries the decision of the Court to allow all states parties to the General Convention to participate,rather than limiting participation to the parties to the dispute in exercise of its discretion under art. 68of its Statute. See Rosenne (n. 3), p. 1001.
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