Advisory Opinion of 29 April 1999
On a request by the Economic and Social Council (ECOSOC) of 5 August 1998 the Court handed down on 29 April 1999 an advisory opinion in the case concerning the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights. The case relates to Mr. Dato' 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, an organ of ECOSOC. Mr. Cumaraswamy faced several lawsuits filed in Malaysian courts for damages in a total amount of 112 million US dollars following an interview in which he commented on certain litigations that had been carried out in Malaysian courts. The plaintiffs asserted that the words used by Mr. Cumaraswamy were defamatory.
The United Nations, after having determined that Mr. Cumaraswamy had spoken in his official capacity as Special Rapporteur, claimed immunity from legal process in national courts according to the Convention of 13 February 1946 on the Privileges and Immunities of the United Nations (the Convention). When no settlement of the issue could be reached with the Government of Malaysia, the ECOSOC, relying on Section 30 of the Convention, requested the Court to give an advisory opinion on the matter.
Recalling its decision in the Mazilu Case (ICJ Reports 1989, p. 194) the Court held that Mr. Cumaraswamy was an expert on mission within the meaning of Article VI, Section 22, of the Convention and that such experts enjoy the privileges and immunities provided for under the Convention in their relations with States parties, including those of which they are nationals. The Court went on to consider whether the immunity applied to Mr. Cumaraswamy in the specific circumstances of the case. It found that the Secretary-General, as the chief administrative officer of the United Nations, had the primary responsibility and authority to assess whether its agents, including experts on mission, acted within the scope of their functions and, where he so concludes, to protect these agents by asserting their immunity.
As to Malaysia's obligations arising out of the Convention, the Court held that when national courts are seised of a case in which the immunity of a United Nations agent is at issue, they should immediately be notified of any finding by the Secretary-General and give that finding the greatest weight. Questions of immunity were preliminary issues which should be expeditiously decided by national courts. Since the conduct of any organ of a State, including its courts, had to be regarded as an act of that State, the Court concluded that the Government of Malaysia did not act in accordance with its obligations under international law in the present case. The Government should have informed the Malaysian courts of the finding of the Secretary-General and the courts should have dealt with the question of immunity as a preliminary issue to be expeditiously decided.
Although advisory opinions given by the Court are not generally binding, Article VIII, Section 30, of the Convention provides that those rendered in the event of a difference between the United Nations and a member State "shall be accepted as decisive by the parties". The Court therefore found, by thirteen votes to two, that the Government of Malaysia had "the obligation to communicate [the] advisory opinion to the Malaysian courts, in order that Malaysia's international obligations be given effect and [Mr.] Cumaraswamy's immunity be respected".
Vice-President Weeramantry and Judges Oda and Rezek appended separate opinions to the Advisory Opinion. Judge Koroma appended a dissenting opinion.