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| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.12. | Privileges and Immunities |
¤
Difference relating to Immunity
from Legal Process of a Special Rapporteur
of the Commission on Human Rights,
Advisory Opinion of 29 April 1999,
I.C.J. Reports 1999, p. 62
[pp. 82-84] 42. In its Advisory Opinion of 14 December 1989 on the Applicability of Article VI, Section 22, of the Convention an the Privileges and Immunities of the United Nations, the Court examined the applicability of Section 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 exercise of their functions' ... The essence of the matter lies not in their administrative position but in the nature of their mission." (I.C.J. Reports 1989, p. 194, para. 47.)
In that same Advisory Opinion, the Court concluded that a Special Rapporteur who is appointed by the Sub-Commission an Prevention of Discrimination 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 Rapporteurs appointed by the Human Rights Commission, of which the Sub-Commission is a subsidiary Organ. It may be observed that Special Rapporteurs 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 Commission 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. Cumaraswamy 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 capacity 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 provided 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.
[pp. 84-86] 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. This authority has been recognized by the Court when it stated:
"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, I.C.J. Reports 1949, p. 184.)
51. Article VI, Section 23, of the General Convention provides that "[p]rivileges 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. 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 an any other protection than that of the Organization ..." (Ibid., 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.
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 Commission to have contact with the media. This practice was confirmed by the High Commissioner for Human Rights who, in a letter dated 2 October 1998, included in the dossier, wrote that: "it is more common than not for Special Rapporteurs to speak to the press about matters pertaining to their investigations, thereby keeping the general public informed of their work".
54. As noted above (see Paragraph 13), Mr. Cumaraswamy was explicitly 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 had set out his methods of work, expressed concern about the independence 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. Cumaraswamy 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 (b), of the General Convention is applicable to him in the present case and affords Mr. Cumaraswamy immunity from legal process of every kind.
[pp. 86-88] 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 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 an 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. 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 Commission, 1973, Vol. II, p. 193.)
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 17 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.
[pp. 94-95 S.O. Weeramantry] Some important distinguishing features must, however, be noted between the immunities of State officials and those of the functionaries of the United Nations.
The duties of the latter are not restricted to the Service of any particular State, but are owed to the community of States as represented by the United Nations. The limits of their functions are not determined by any particular State, but are defined an behalf of the international community by the Secretary-General of the United Nations. Their protections are claimed, not on behalf of any particular State, but on behalf of the international community whom such functionaries serve. A dispute arising out of their activities is not justiciable within the limited perspectives of the States involved, but engages the global interests of the United Nations. As "the supreme type of international organization"1, the functions and interests of the United Nations are on a different plane from those of any individual nation State.
These essential differences lift the matter into a different frame of reference and cannot pass unnoticed as international law moves towards a universally applicable system of administrative jurisprudence covering the conduct and protections of United Nations personnel wherever in the world their missions may take them.
It follows that the jurisprudence that has grown up around the exclusive rights of the domestic Courts of the host State to determine these questions is not necessarily applicable in its totality where United Nations personnel are involved. There may well need to be some differences of approach which, while paying due regard to the autonomy of domestic Courts, also take into account the wider interests of the world community, and the competence and special responsibilities of the United Nations as representing that community.
[pp. 96-97 S.O. Weeramantry] Since it is essential to United Nations staff that they receive sufficient protection to be able to discharge their missions with independence, and since the duty of protecting its staff in the exercise of such duties lies so heavily on the United Nations, great importance must attach to the views of its chief functionary, the Secretary-General, regarding the question whether immunity does or does not attach in a given case.
The Secretary-General is better informed than any external authority regarding such questions as the limits of a given agent's functions, the purpose or purposes the appointment was intended to serve, and the needs of the United Nations in relation to any particular inquiry. He is better informed than any other authority of the practice relating to, and the factual background surrounding, the particular matter. With his unique overview of the entire scheme of United Nations operations, he, more than any other authority, can assess a given agent's functions within the overall context of the rationale, traditions and operational framework of United Nations activities as a whole.
Any attempt to determine the applicability of the privileges and immunities of the United Nations to a particular rapporteur in particular circumstances without reference to the opinion of the Secretary-General would fail to take into account an important part of the material essential to an informed decision.
Moreover, within the United Nations system, there is a practice of recognition of the conclusiveness of the Secretary-General's authority in this regard, and there are General Assembly resolutions, such as resolution 36/238 of 18 December 1981, which indicate the special importance accorded to the view of the Secretary-General on the entire range of matters relating to administration within the Organization. The views of the United Nations' highest administrative authority on an essentially administrative matter such as the extent of a particular official's sphere of authority - a question so eminently within his knowledge and supervisory functions - cannot be disregarded without detriment to the entire system.
The Secretary-General's determination as to whether a particular action was within an official's or rapporteur's sphere of authority should therefore be viewed as binding on the domestic tribunal, unless compelling reasons can be established for displacing that weighty presumption. I am in complete and respectful agreement with the Court in this regard. There is no element of arbitrariness here, for if a State disputes such a ruling by the Secretary-General, there is always room for the matter to be brought before this Court for an advisory opinion in terms of Section 30 of the Convention.
[p. 102 S.O. Oda] 10. I do not contest the substance of what the Court thus stated in its Advisory Opinion in connection with the authority of the Secretary-General. However, it is not for the Secretary-General but for the Court to exercise the authority vested in it to make a determination, at the request of ECOSOC, on the applicability of the Convention, and on Mr. Cumaraswamy's entitlement to immunity.
[p. 115 D.O. Koroma] 13. In my respectful opinion, for the Court to conclude that the Convention is applicable to Mr. Cumaraswamy in this case, that question is intrinsically and inextricably related to a finding whether the controverted words were spoken in the course of the performance of his mission. Furthermore, it would be inappropriate to reach such a conclusion by applying only the first part of the provision. It would also be injudicious as well as insufficient for the Court in making such a determination to rely on the findings of some other organ or institution to reach its conclusion, as the Court would appear to have done in this case. The references (see paragraphs 50 and 51 of the Opinion) to the authority and responsibility of the Secretary-General as chief administrative officer of the Organization and protector of the mission with which an expert is entrusted are, while incontestable, irrelevant to the question posed by ECOSOC. Indeed, the Court itself has stated that it is the Council's question as formulated which is to be answered by the Court. It cannot therefore be both ways. Nor, in my view, is it necessarily conclusive that
"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."
While such information is to be given due weight and respect, the Convention does not stipulate that it is conclusive, let alone binding. Nor should it be considered adequate in order for the Convention to be applicable, or for the judicial purposes of this case, that it has become standard practice for Special Rapporteurs of the Commission to have contact with the media. It is one thing to have contact with the media to enable a Special Rapporteur to carry out his mandate, but, as the Court implied in paragraph 66 of the Advisory Opinion, special rapporteurs, like all agents of the United Nations, must take care not to exceed the scope of their functions, and must express themselves with requisite prudence so as to remain within their mandate.
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