Summaries of the Decisions
Applicability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations,
Advisory Opinion of December 15, 1989
On December 15, 1989 the International Court of Justice delivered an
advisory opinion on a request brought by the United Nations Economic and Social
Council concerning the applicability of Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations in the case of
Mr. Mazilu.
On March 13, 1984 the Commission on Human Rights - a subsidiary organ of the
Economic and Social Council - elected Mr. Mazilu, a Romanian national nominated
by Romania, to serve as a member of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities. The Sub-Commission on August 29,
1985 requested Mr. Mazilu to prepare a report on "Human Rights and Youth"
and further requested the Secretary-General to provide him with all necessary
assistance for the completion of his task.
The thirty-ninth session of the Sub-Commission, at which Mr. Mazilu's report
was to be presented, was not convened in 1986 but was postponed until 1987. The
three-year mandate of its members - originally due to expire on December 31,
1986 - was extended by a Council decision for an additional year. When the·
session of the Sub-Commisson opened in Geneva on August 10, 1987, no report had
been received from Mr. Mazilu, nor was he present. By a letter the Permanent
Mission of Romania informed the United Nations Office at Geneva that Mr. Mazilu
had suffered a heart-attack and was still in hospital. A telegram signed "D.
Mazilu" was received in Geneva on August 18, 1987 and informed the
Sub-Commission of his inability, due to heart illness, to attend the current
session. In these circumstances, the Sub-Commission deferred consideration of
Mr. Mazilu's report until 1988.
After the 1987 session of the Sub-Commission, the Centre for Human Rights of
the United Nations Secretariat in Geneva made various attempts to contact Mr.
Mazilu. In December 1987, Mr. Mazilu informed the Under-Secretary-General for
Human Rights that he had not received previous communications of the Centre. In
January 1988, Mr. Mazilu informed the Under-Secretary-General for Human Rights
that he had been twice in hospital in 1987 and that he had been forced to
retire, as of December 1, 1987, from his various governmental posts. He also
stated that the Romanian authorities were refusing him a travel permit. In April
and May 1988, Mr. Mazilu, in a series of letters, complained that strong
pressure had been exerted on him and on his family. On December 31, 1987 the
terms of all members of the Sub-Commission, including Mr. Mazilu, expired.
Nevertheless, all the rapporteurs and special rapporteurs of the Sub-Commission
were invited to attend its 1988 session, but Mr. Mazilu again did not appear. A
special invitation was cabled to him, but the telegram was not delivered and the
United Nations Information Centre in Bucharest was unable to locate Mr. Mazilu.
The Under-Secretary-General for Human Rights informed the Sub-Commission that
the Romanian Government took the position that any intervention by the United
Nations Secretariat and any form of investigation in Bucharest would be
considered interference in Romania's internal affairs. On September 1, 1988, the
Sub-Commission adopted resolution 1988/37 by which it requested the
Secretary-General of the United Nations to approach the Government of Romania
and invoke the applicability of the Convention on the Privileges and Immunities
of the United Nations. It also requested the Commission to urge the Council to
request from the International Court of Justice an advisory opinion on the
applicability of the relevant provisions of the Convention on the Privileges and
Immunities of the United Nations to the present case. Pursuant to that
resolution the Secretary-General, on October 26, 1988 addressed a Note Verbale
to the Permanent Representative of Romania to the United Nations in New York, in
which he invoked the General Convention in respect of Mr. Mazilu. On January 6,
1989, the Permanent Representative of Romania handed to the Legal Council of the
United Nations an Aide-Mémoire. Romania stated that Mr. Mazilu had in
1987 become gravely ill and that he had been placed on the retired list on
grounds of ill-health. Romania expressed the view that the Convention "does
not equate rapporteurs with experts on missions" and that "even if
rapporteurs are given some of the status of experts, they can enjoy only
functional immunities and privileges". Romania stated expressely that it
was opposed to a request for an advisory opinion from the Court on any aspect of
the case.
The Council, however, on May 24, 1989 adopted its resolution 1989/75, by
which it requested the Court to render an opinion.
The Court, having considered the question which is the subject of the
request, took the view that it was a legal question in that it involved the
interpretation of an international convention in order to determine its
applicability and, moreover, that it was a question arising within the scope of
the activities of the Council, as Mr. Mazilu's assignment was pertinent to a
function and programme of the Council.
Romania claimed that, because of the reservation made by it to Section 30 of
the General Convention, the United Nations could not, without Romania's consent,
submit a request for an advisory opinion in respect of its difference with
Romania. The Court in that respect began by referring to its earlier
jurisprudence, recalling that the consent of States is not a condition precedent
to its competence under Article 96 of the Charter and Article 65 of the Statute
to give advisory opinions. This applied even when the request for an opinion was
seen as relating to a legal question pending between the United Nations and the
Member State. The Court then noted that Section 30 of the General Convention
operated on a different plane and in a different context from that of Article 96
of the Charter as, when the provisions of that Section are read in their
totality, it was clear that their object was to provide a dispute settlement
mechanism. The Court found that the request was not made under Section 30 and
that it accordingly did not need to determine the effect of the Romanian
reservation to that provision. The Court recalled that the nature and purpose of
the present proceedings were those of a request for advice on the applicability
of a part of the General Convention, and not the bringing of a dispute before
the Court for determination. It added that the content and extent of the
obligations entered into by States when they consented to be bound by the
Convention are not modified by the request and by the present advisory opinion.
The Court thus found that the reservation made by Romania to Section 30 of the
General Convention did not affect the Court's jurisdiction to entertain the
request submitted to it.
On the other hand, the Court found that the absence of the consent of
Romania to the proceedings before the Court was a matter to be considered when
examining the propriety of its giving an opinion. The Court stated that in
certain circumstances the lack of consent of an interested State might render
the giving of an advisory opinion incompatible with the Court's judicial
character. It observed that an instance of this would be when to give a reply
would have the effect of circumventing the principle that a State is not obliged
to allow its disputes to be submitted to judicial settlement without its
consent. The Court considered that in the present case to give a reply would
have no such effect. In that respect it distinguished between the question of
the applicability of the Convention in the case of Mr. Mazilu on the one hand
and its application on the other hand. Accordingly, the Court did not find any
compelling reason to refuse to give an advisory opinion.
The Court then considered what was meant by "experts on missions"
for the purposes of Section 22 on the Convention of the Privileges and
Immunities of the United Nations. The Court found that the purpose of Section 22
was 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 Court noted that the practice of the United Nations showed that
the persons so appointed and in particular the members of committees and
commissions of the United Nations, have been regarded as experts on mission
within the meaning of Section 22.
The Court then turned its attention to the meaning of the phrase "during
the period of their missions" which is part of that Section. In this
connection the question arose whether experts on missions are also covered by
Section 22 when there is no travel or apart from travel. To answer this
question, the Court considered it necessary to determine the meaning of the word
"mission" in English and "mission" in French, the two
languages in which the General Convention was adopted. The Court considered that
Section 22, in its reference to experts performing missions for the United
Nations, uses the word "mission" in a general sense. According to the
Court, the intent of Section 22 was to ensure the independence of such experts
in the interest of the Organization by according them the privileges and
immunities necessary for the purpose. The Court accordingly concluded that
Section 22 is applicable to every expert on mission, whether or not he travels.
The Court finally took up the question whether experts on missions could
invoke the privileges and immunities provided for in Section 22 against the
States of which they are nationals or on the territory of which they reside. It
found that the privileges and immunities of Article VI were conferred with the
view to ensuring the independence of international officials and experts in the
interest of the Organization; this independence must be respected by all States,
including the State of nationality and the State of residence. The Court noted,
that some States have entered reservations to certain provisions of Article VI
itself, as regards their nationals or persons resident on their territory. In
its view, the very fact that it was felt necessary to make these reservations
confirms that in the absence of such reservations, experts on missions enjoy the
privileges and immunities provided for under the General Convention in their
relations with the States of which they are nationals or on the territory of
which they reside.
The Court observed that members of the Sub-Commission are elected by the
Commission as experts in their individual capacity. The Court therefore found
that, since their status was neither that of a representative of a Member State
nor that of a United Nations official, and since they perform functions
independently for the Sub-Commission, the members of the Sub-Commission must be
regarded as experts on missions within the meaning of Section 22. The Court
further noted that rapporteurs or special rapporteurs are entrusted by the
Sub-Commission with a research mission. Their status was neither that of a
representative of a Member State nor that of a United Nations official. Since
they carry out their research independently on behalf of the United Nations,
they must be regarded as experts on missions within the meaning of Section 22,
even in the event that they are not, or are no longer, members of the
Sub-Commission.
Regarding the case of Mr. Mazilu, the Court found that at no time had he
ceased to have the status of an expert on mission within the meaning of Section
22, or ceased to be entitled to enjoy for the exercise of his functions the
privileges and immunities provided for therein. The Court further pointed out
that it was for the United Nations to decide whether in the circumstances it
wished to retain Mr. Mazilu as special rapporteur and took note that decisions
to that effect had been taken by the Sub-Commission.
The Court therefore was of the opinion that in these circumstances Mr.
Mazilu continued to have the status of a special rapporteur, and that as a
consequence he had to be regarded as an expert on mission within the meaning of
Section 22 of the General Convention and that the Section was accordingly
applicable in the case of Mr. Mazilu.
