|I.||Substantive International Law - First Part|
|8.||VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES|
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. 87-88] 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.
[p. 107 S.O. Oda] 24. (Paragraph (2) (a) of the operative part) The Malaysian national courts decided to examine Mr. Cumaraswamy's plea in the merits phase of the proceedings against him. Malaysia, as a State, is responsible for the actions of its national courts in allowing the proceedings against Mr. Cumaraswamy to be pursued, rather than dismissing them. In other words, it is Malaysia, as a State, that is responsible for the failure of its organs - the judicial power in this case - to ensure Mr. Cumaraswamy's legal immunity. The matter of whether or not an executive department of the Malaysian Government informed its courts of the position taken by the Secretary-General is not a relevant issue in this case.
[p. 109 S.O. Rezek] I share the views of the majority on these points, but I would wish to emphasize that the obligation incumbent upon Malaysia is not merely to notify the Malaysian courts of the finding of the Secretary-General, but to ensure that the immunity is respected.
This is in no way to suggest a course of conduct incompatible with the very notion of the independence of the judiciary (which independence, moreover, constitutes the subject-matter of the Special Rapporteur's mission). The Government will ensure respect for immunity if, having endorsed the finding of the Secretary-General, it uses all the means at its disposal in relation to the judiciary (action by the public prosecutor or the advocate-general in the majority of countries) in order to have that immunity applied, in exactly the same way as it defends its own interests and positions before the courts. Admittedly, where the judiciary is an independent power, it is always possible that, notwithstanding the Government's efforts, immunity may finally be denied by the highest judicial instance. In that hypothetical case, just as in the concrete one of the refusal by the Malaysian courts to deal with the question of immunity in limine litis, Malaysia would incur international responsibility vis-à-vis the United Nations by reason of the acts of a power other than the executive. That would not be a situation unknown to international law, or indeed a rare occurrence in the history of international relations.