|I.||Substantive International Law - First Part|
|5.||THE UNITED NATIONS|
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. 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 on 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.
[p. 87] 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
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.
[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.