INTERNATIONAL C O U R T O F JUSTICE REPORTS O F JUDGMENTS ADVISORY OPINIONS AND ORDERS DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS OF A SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS ADVISORY OPINION OF 29 APRIL 1999 COUR INTERNATIONALE D E JUSTICE RECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES DIFFÉREND RELATIF À L'IMMUNITÉ DE JURIDICTION D'UN RAPPORTEUR SPÉCIAL DE LA COMMISSION DES DROITS DE L'HOMME AVIS CONSULTATIF DU 29 AVRIL 1999 Officia1 citation Dijjference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Advisory Opinion 1 C J Reports 1999 p 62 Mode officiel de citation Différend relatif à l'immunité de juridiction d'un rapporteur spécial de la Commission des droits de l'homme avis consultatif C 1 J Recueil 1999 p 62 ISSN 0074-4441 ISBN 92-1-070793-1 sies nuder No de vente 772 6 29 APRIL 1999 ADVISORY OPINION DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS O F A SPECIAL RAPPORTEUR O F THE COMMISSION ON HUMAN RIGHTS DIFFÉREND RELATIF À L'IMMUNITÉ DE JURIDICTION D'UN RAPPORTEUR SPÉCIAL DE LA COMMISSION DES DROITS DE L'HOMME 29 AVRIL 1999 AVIS CONSULTATIF INTERNATIONAL COURT OF JUSTICE 1999 29 April General List No 100 YEAR 1999 29 April1999 DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS OF A SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS Article 96 paragraph 2 of the CAarter arrd Article 65 paragraph 1 of the Statute - Resolution 89 1 of the General Assembly authorizing the Economic and Social Council to request advisory opinions - Article VIII Section 30 of the Convention on the Privileges and Immunities of the United Nations Existence of a difference between the United Nations and one of its Members - Opinion accepted as decisive by the parties - Advisory nature of the Court's function and particular treaty provisions - Legal question - Question arising within the scope of the activity of the body requesting i f Jurisdictiorr and discretiorfary power of the Court to give an opinion Absence of compelling reasons to decline to give such opinion Question on which the opinion is requested - Divergence of views - Formulation adopted by the Council as the requesting body Special Rapporteur of the Commission on Human Rights - Expert on mission - Applicability of Article VI Section 22 of the General Convention SpecSfîc circumstances of the case - Question ulhether words spoken by the Special Rapporteur during an interview were spoken in the course of the performance of his mission - Pivota1 vole of the Secretary-Generul in the process of determining whether in the prevailing circumstances an expert on mission is entitled to the immunity provided for in Section 22 b - Interview given by Special Rapporteur to International Commercial Litigation - Contacts with the media by Special Rapporteurs of the Commission on Human Rights - Reference to Special Rapporteur's capacity in the text of the interview - Position of the Commission itself Legal obligations of Malaysia in rhis case - Point in rime from which the question must be answered - Authority and responsibility of the SecretaryGeneral to inform the Government of a member State of his jinding on the imrnunity of an agent - Finding creating a presumption which can only be set aside by national courts for the most compelling reasons - Obligation on the governmental authorities to convey thatjinding to the national courts concerned - Immunity from legal process of every kind ivithin the meaning o f Sec- tion 22 b of the Convention Preliminary question which must be expeditiously decided in limine litis Holding the Special Rapporteur Jînancially harmless Obligation of the Malaysian Government to communicate the advisory opinion to the national courts concerned Claims for any damages incurred as a result of acts of the Organization or its agents - Article VIII Section 29 of the General Convention - Conduct expected of United Nations agents - ADVISORY OPINION Present President SCHWEBEL Vice-President WEERAMANTRY Judges ODA BEDJAOUI GUILLAUME RANJEVA HERCZEGH SHI FLEISCHHAUER KOUOMA VERESHCHETIN HIGGINS PARRA-ARANGUREN KOOIJMANS REZEK Registrar VALENCIA-OSPINA Concerning the difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights THECOURT composed as above gives the following Advisory Opinion 1 The question on which the Court has been requested to give an advisory opinion is set forth in decision 19981297 adopted by the United Nations Economic and Social Council hereinafter called the Council on 5 August 1998 By a letter dated 7 August 1998 filed in the Registry on 10 August 1998 the Secretary-General of the United Nations officially communicated to the Registrar the Council's decision to submit the question to the Court for an advisory opinion Decision 19981297 certified copies of the English and French texts of which were enclosed with the letter reads as follows The Economic and Social Council Having considered the note by the Secretary-General on the privileges and immunities of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers' Considering that a difference has arisen between the United Nations and the Government of Malaysia within the meaning of Section 30 of the Convention on the Privileges and Immunities of the United Nations with respect to the immunity from legal process of Dato' Param Cumaraswamy the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers Recalling General Assembly resolution 89 1 of 11 December 1946 1 Requests on a priority basis pursuant to Article 96 paragraph 2 of the Charter of the United Nations and in accordance with General Assembly 64 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION resolution 89 1 an advisory opinion from the International Court of Justice on the legal question of the applicability of Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations in the case of Dato' Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary-General' and on the legal obligations of Malaysia in this case 2 Calls upon the Government of Malaysia to ensure that al1 judgements and proceedings in this matter iri the Malaysian courts are stayed pending receipt of the advisory opinion of the International Court of Justice which shall be accepted as decisive by the parties Also enclosed with the letter were certified copies of the English and French texts of the note by the Secretary-General dated 28 July 1998 and entitled Privileges and Immunities of the Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers and of the addendum to that note E 1998 94 Add l dated 3 August 1998 2 By letters dated 10 August 1998 the Registrar pursuant to Article 66 paragraph 1 of the Statute of the Court gave notice of the request for an advisory opinion to al1 States entitled to appear before the Court A copy of the bilingual printed version of the request prepared by the Registry was subsequently sent to those States 3 By an Order dated 10 August 1998 the senior judge acting as President of the Court under Article 13 paragraph 3 of the Rules of Court decided that the United Nations and the States which are parties to the Convention on the Privileges and Immunities of the United Nations adopted by the United Nations General Assembly on 13 February 1946 hereinafter called the General Convention were likely to be able to furnish information on the question in accordance with Article 66 paragraph 2 of the Statute By the same Order the senior judge considering that in fixing time-limits for the proceedings it was necessary to bear in mind that the request for an advisory opinion was expressly made 'on a priority basis' fixed 7 October 1998 as the time-limit within which written statements on the question might be submitted to the Court in accordance with Article 66 paragraph 2 of the Statute and 6 November 1998 as the time-limit for written comments on written statements in accordance with Article 66 paragraph 4 of the Statute On 10 August 1998 the Registrar sent to the United Nations and to the States parties to the General Convention the special and direct communication provided for in Article 66 paragraph 2 of the Statute 4 By a letter dated 22 September 1998 the Legal Counsel of the United Nations communicated to the President of the Court a certified copy of the amended French version of the note by the Secretary-General which had been enclosed with the request Consequently a corrigendum to the printed French version of the request for an advisory opinion was communicated to aH States entitled to appear before the Court 5 The Secretary-General communicated to the Court pursuant to Article 65 paragraph 2 of the Statute a dossier of documents likely to throw light upon the question these documents were received in the Registry in instalments from 5 October 1998 onwards 6 Within the tirne-limit fixed by the Order of 10 August 1998 written statements were filed by the Secretary-General of the United Nations and by Costa Rica Germany Italy Malaysia Sweden the United Kingdom and the United States of Arnerica the filing of a written statement by Greece on 12 October 1998 was authorized A related letter was also received from Luxembourg on 29 October 1998 Written comments on the statements were submitted within the prescribed time-limit by the Secretary-General of the United Nations and by Costa Rica Malaysia and the United States of America Upon receipt of those statements and comments the Registrar cornmunicated them to al1 States having taken part in the written proceedings The Registrar also communicated to those States the text of the introductory note to the dossier of documents submitted by the Secretary-General In addition the President of the Court granted Malaysia's request for a copy of the whole dossier on the instructions of the President the Deputy-Registrar also communicated a copy of that dossier to the other States having taken part in the written proceedings and the Secretary-General was so informed 7 The Court decided to hold hearings opening on 7 December 1998 at which oral statements might be submitted to the Court by the United Nations and the States parties to the General Convention 8 Pursuant to Article 106 of the Rules of Court the Court decided to make the written statements and comments submitted to the Court accessible to the public with effect from the opening of the oral proceedings 9 In the course of public sittings held on 7 and 8 December 1998 the Court heard oral statements in the following order by for the United Nations Mr Hans Corell Under-Secretary-General for Legal Affairs the Legal Counsel Mr Ralph Zacklin Assistant Secretary-General for Legal Affairs for Costa Rica H E Mr José de J Conejo Ambassador of Costa Rica to the Netherlands Mr Charles N Brower White Case LLP for Italy Mr Umberto Leanza Head of the Diplomatic Legal Service at the Ministry of Foreign Affairs for Malaysia Dato' Heliliah bt Mohd Yusof Solicitor General of Malaysia Sir Elihu Lauterpacht C B E Q C Honorary Professor of International Law University of Cambridge The Court having decided to authorize a second round of oral statements the United Nations Costa Rica and Malaysia availed themselves of this option at a public hearing held on 10 December 1998 Mr Hans Corell H E Mr José de J Conejo Mr Charles N Brower Dato' Heliliah bt Mohd Yusof and Sir Elihu Lauterpacht were successively heard Members of the Court put questions to the Secretary-General's representative who replied both orally and in writing Copies of the written replies were communicated to al1 the States having taken part in the oral proceedings Malaysia submitted written comments on these replies 10 In its decision 19981297 the Council asked the Court to take into account for purposes of the advisory opinion requested the circumstances set out in paragraphs 1 to 15 of the note by the SecretaryGeneral El1998194 Those paragraphs read as follows 1 In its resolution 22 A 1 of 13 February 1946 the General Assembly adopted pursuant to Article 105 3 of the Charter of the United Nations the Convention on the Privileges and Immunities of the United Nations the Convention Since then 137 Member States have become parties to the Convention and its provisions have been incorporated by reference into many hundreds of agreements relating to the headquarters or seats of the United Nations and its organs and to activities carried out by the Organization in nearly every country of the world 2 That Convention is inter alia designed to protect various categories of persons including 'Experts on Mission for the United Nations' from al1 types of interference by national authorities In particular Section 22 b of Article VI of the Convention provides 'Section 22 Experts other than officials coming within the scope of Article V performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions including time spent on journeys in connection with their missions In particular they shall be accorded b in respect of words spoken or written and acts done by them in the course of the performance of their mission immunity from legal process of every kind This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations ' 3 In its Advisory Opinion of 14 December 1989 on the Applicability of Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations the so-called 'Mazilu case' the International Court of Justice held that a Special Rapporteur of the Subcommission on the Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights was an 'expert on mission' within the meaning of Article VI of the Convention 4 The Commission on Human Rights by its resolution 1994141 of 4 March 1994 endorsed by the Economic and Social Council in its decision 19941251 of 22 July 1994 appointed Dato' Param Cumaraswamy a Malaysian jurist as the Commission's Special Rapporteur on the Independence of Judges and Lawyers His mandate consists of tasks including infer alia to inquire into substantial allegations concerning and to identify and record attacks on the independence of the judiciary lawyers and court officials Mr Cumaraswamy has submitted four reports to the Commission on the execution of his mandate ElCN 411995139 ElCN 411996137 ElCN 411997132 and ElCN 411998139 After the third report containing a section on the litigation pending against him in the Malays ancivil courts the Commission at its fifty-fourth session in April 1997 renewed his mandate for an additional three years 5 In November 1995 the Special Rapporteur gave an interview to International Commrrcial Litigation a magazine published in the United Kingdom of Great Britain and Northern Ireland but circulated also in Malaysia in which he commented on certain litigations that had been carried out in Malaysian courts As a result of an article published on the basis of that interview two commercial companies in Malaysia asserted that the said article contained defamatory words that had 'brought them into public scandal odium and contempt' Each Company filed a suit against him for damages amounting to M$30 million approximately U S 1 2 million each 'including exemplary damages for slander' 6 Acting on behalf of the Secretary-General the Legal Counsel considered the circumstances of the interview and of the controverted passages of the article and determined that Dato' Param Cumaraswamy was interviewed in his officia1 capacity as Special Rapporteur on the Independence of Judges and Lawyers that the article clearly referred to his United Nations capacity and to the Special Rapporteur's United Nations global mandate to investigate allegations concerning the independence of the judiciary and that the quoted passages related to such allegations On 15 January 1997 the Legal Counsel in a note verbale addressed to the Permanent Representative of Malaysia to the United Nations therefore 'requested the competent Malaysian authorities to promptly advise the Malaysian courts of the Special Rapporteur's immunity from legal process' with respect to that particular complaint On 20 January 1997 the Special Rapporteur filed an application in the High Court of Kuala Lumpur the trial court in which the said suit had been filed to set aside andlor strike out the plaintiffs' writ on the ground that the words that were the subject of the suits had been spoken by him in the course of performing his mission for the United Nations as Special Rapporteur on the Independence of Judges and Lawyers The Secretary-General issued a note on 7 March 1997 confirming that 'the words which constitute the basis of plaintiffs' complaint in this case were spoken by the Special Rapporteur in the course of his mission' and that the Secretary-General 'therefore maintains that Dato' Param Cumaraswamy is immune from legal process with respect thereto' The Special Rapporteur filed this note in support of his above-mentioned application 7 After a draft of a certificate that the Minister for Foreign Affairs proposed to file with the trial court had been discussed with representatives of the Office of Legal Affairs who had indicated that the draft set out the immunities of the Special Rapporteur incompletely and inadequately the Minister nevertheless on 12 March 1997 filed the certificate in the form originally proposed in particular the final sentence of that certificate in effect invited the trial court to determine at its own discretion whether the immunity applied by stating that this was the case 'only in respect of words spoken or written and acts done by him in the course of the performance of his mission' emphasis added In spite of the representations that had been made by the Office of Legal Affairs the certificate failed to refer in any way to the note that the Secretary-General had issued a few days earlier and that had in the meantime been filed with the court nor did it indicate that in this respect i e in deciding whether particular words or acts of an expert fell within the scope of his mission the determination could exclusively be made by the SecretaryGeneral and that such determination had conclusive effect and therefore had to be accepted as such by the court In spite of repeated requests by the Legal Counsel the Minister for Foreign Affairs refused to amend his certificate or to supplement it in the manner urged by the United Nations 8 On 28 June 1997 the competent judge of the Malaysian High Court for Kuala Lumpur concluded that she was 'unable to hold that the Defendant is absolutely protected by the immunity he claims' in part because she considered that the Secretary-General's note was merely 'an opinion' with scant probative value and no binding force upon the court and that the Minister for Foreign Affairs' certificate 'would appear to be no more than a bland statement as to a state of fact pertaining to the Defendant's status and mandate as a Special Rapporteur and appears to have room for interpretation' The Court ordered that the Special Rapporteur's motion be dismissed with costs that costs be taxed and paid forthwith by him and that he file and serve his defence within 14 days On 8 July the Court of Appeal dismissed Mr Cumaraswamy's motion for a stay of execution 9 On 30 June and 7 July 1997 the Legal Counsel thereupon sent notes verbales to the Permanent Representative of Malaysia and also held meetings with him and his Deputy In the latter note the Legal Counsel inter d i a called on the Malaysian Government to intervene in the current proceedings so that the burden of any further defence including any expenses and taxed costs resulting therefrom be assumed by the Government to hold Mr Cumaraswamy harmless in respect of the expenses he had already incurred or that were being taxed to him in respect of the proceedings so far and so as to prevent the accumulation of additional expenses and costs and the further need to submit a defence until the matter of his immunity was definitively resolved between the United Nations and the Government to support a motion to have the High Court proceedings stayed until such resolution The Legal Counsel referred to the provisions for the settlement of differences arising out of the interpretation and application of the 1946 Convention that might arise between the Organization and a Member State which are set out in Section 30 of the Convention and indicated that if the Government decided that it cannot or does not wish to protect and to hold harmless the Special Rapporteur in the indicated manner a difference within the meaning of those provisions might be considered to have arisen between the Organization and the Government of Malaysia 10 Section 30 of the Convention provides as follows 'Section 30 Al1 differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice unless in any case it is agreed by the parties to have recourse to another mode of settlement If a difference arises between the United Nations on the one hand and a Member on the other hand a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court The opinion given by the Court shall be accepted as decisive by the parties ' I l On 10 July yet another lawsuit was filed against the Special Rapporteur by one of the lawyers mentioned in the magazine article referred to in paragraph 5 above based on precisely the same passages of the interview and claiming damages in an amount of M$60 million U S 2 4 million On 11 July the Secretary-General issued a note corresponding to the one of 7 March 1997 see para 6 above and also communicated a note verbale with essentially the same text to the Permanent Representative of Malaysia with the request that it be presented formally to the competent Malaysian court by the Government 12 On 23 October and 21 November 1997 new plaintiffs filed a third and fourth lawsuit against the Special Rapporteur for M$100 million US$40 million and M$60 million US$24 million respectively On 27 October and 22 November 1997 the SecretaryGeneral issued identical certificates of the Special Rapporteur's immunity 13 On 7 November 1997 the Secretary-General advised the Prime Minister of Malaysia that a difference might have arisen between the United Nations and the Government of Malaysia and about the possibility of resorting to the International Court of Justice pursuant to Section 30 of the Convention Nonetheless on 19 February 1998 the Federal Court of Malaysia denied Mr Cumaraswamy's application for leave to appeal stating that he is neither a sovereign nor a full-fledged diplomat but merely 'an unpaid part-time provider of information' 14 The Secretary-General then appointed a Special Envoy Maître Yves Fortier of Canada who on 26 and 27 February 1998 undertook an official visit to Kuala Lumpur to reach an agreement with the Government of Malaysia on a joint submission to the International Court of Justice Following that visit on 13 March 1998 the Minister for Foreign Affairs of Malaysia informed the SecretaryGeneral's Special Envoy of his Government's desire to reach an outof-court settlement In an effort to reach such a settlement the Office of Legal Affairs proposed the terms of such a settlement on 23 March 1998 and a draft settlement agreement on 26 May 1998 Although the Government of Malaysia succeeded in staying proceedings in the four lawsuits until September 1998 no final settlement agreement was concluded During this period the Government of Malaysia insisted that in order to negotiate a settlement Maître Fortier must return to Kuala Lumpur While Maître Fortier preferred to undertake the trip only once a preliminary agreement between the parties had been reached nonetheless based on the Prime Minister of Malaysia's request that Maître Fortier return as soon as possible the Secretary-General requested his Special Envoy to do so 15 Maître Fortier undertook a second officia1 visit to Kuala Lumpur from 25 to 28 July 1998 during which he concluded that the Government of Malaysia was not going to participate either in settling this matter or in preparing a joint submission to the current session of the Economic and Social Council The Secretary-General's Special Envoy therefore advised that the matter should be referred to the Council to request an advisory opinion from the International Court of Justice The United Nations had exhausted al1 efforts to reach either a negotiated settlement or a joint submission through the Council to the International Court of Justice In this connection the Government of Malaysia has acknowledged the Organization's right to refer the matter to the Council to request an advisory opinion in accordance with Section 30 of the Convention 71 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION advised the Secretary-General's Special Envoy that the United Nations should proceed to do so and indicated that while it will make its own presentations to the International Court of Justice it does not oppose the submission of the matter to that Court through the Council 11 The dossier of documents submitted to the Court by the SecretaryGeneral see paragraph 5 above contains the following additional information that bears on an understanding of the request to the Court 12 The article published in the November 1995 issue of International Commercial Litigation which is referred to in paragraph 5 of the foregoing note by the Secretary-General was written by David Samuels and entitled Malaysian Justice on Trial The article gave a critical appraisal of the Malaysian judicial system in relation to a number of court decisions Various Malaysian lawyers were interviewed as quoted in the article they expressed their concern that as a result of these decisions foreign investors and manufacturers might lose the confidence they had always had in the integrity of the Malaysian judicial system 13 It was in this context that Mr Cumaraswamy who was referred to in the article more than once in his capacity as the United Nations Special Rapporteur on the Independence of Judges and Lawyers was asked to give his comments With regard to a specific case the Ajvr Molek case he said that it looked like a very obvious perhaps even glaring example of judge-choosing although he stressed that he had not finished his investigation Mr Cumaraswamy is also quoted as having said Cornplaints are rife that certain highly placed personalities in the business and corporate sectors are able to manipulate the Malaysian system of justice He added But 1 do not want any of the people involved to think 1 have made up my mind He also said It would be unfair to name any names but there is some concern about this among foreign businessmen based in Malaysia particularly those who have litigation pending 14 On 18 December 1995 two commercial firms and their legal counsel addressed letters to Mr Cumaraswamy in which they maintained that they were defamed by Mr Cumaraswamy's statements in the article since it was clear they claimed that they were being accused of corruption in the Ayer Molek case They informed Mr Cumaraswamy that they had no choice but to issue defamation proceedings against him and added It is important that al1 steps are taken for the purpose of mitigating the continuing damage being done to our business and commercial reputations which is worldwide as quickly and effectively as possible 15 On 28 December 1995 in view of the foregoing letters the Secretariat of the United Nations issued a Note Verbale to the Permanent Mission of Malaysia in Geneva requesting that the competent Malaysian authorities be advised and that they in turn advise the Malaysian courts of the Special Rapporteur's immunity from legal process This was the first in a series of similar communications containing the same finding sent by or on behalf of the Secretary-General - some of which were sent once court proceedings had been initiated see paragraphs 6 et seq of the note by the Secretary-General reproduced in paragraph 10 above 16 On 12 December 1996 the two commercial firms issued a writ of summons and statement of claim against Mr Cumaraswamy in the High Court of Kuala Lumpur They claimed damages including exemplary damages for slander and libel and requested an injunction to restrain Mr Cumaraswamy from further defaming the plaintiffs 17 As stated in the note of the Secretary-General quoted in paragraph I O above three further lawsuits flowing from Mr Cumaraswamy's statements to International Commercial Litigation were brought against him The Government of Malaysia did not transmit to its courts the texts containing the Secretary-General's finding that Mr Cumaraswamy was entitled to immunity from legal process The High Court of Kuala Lumpur did not pass upon Mr Cumaraswamy's immunity in limine litis but held that it had jurisdiction to hear the case before it on the merits including making a determination of whether Mr Cumaraswamy was entitled to any immunity This decision was upheld by both the Court of Appeal and the Federal Court of Malaysia 18 As indicated in paragraph 4 of the above note by the SecretaryGeneral the Special Rapporteur made regular reports to the Commission on Human Rights hereinafter called the Commission In his first report E CN 4 1995 39 dated 6 February 1995 Mr Cumaraswamy did not refer to contacts with the media In resolution 1995136 of 3 March 1995 the Commission welcomed this report and took note of the methods of work described therein in paragraphs 63 to 93 In his second report E CN 411996137 dated 1 March 1996 the Special Rapporteur referred to the Ayer Molek case and to a critical press statement made by the Bar Council of Malaysia on 21 August 1995 The report also included the following quotation from a press statement issued by Mr Cumaraswamy on 23 August 1995 Complaints are rife that certain highly placed personalities in Malaysia including those in business and corporate sectors are manipulating the Malaysian system of justice and thereby undermining the due administration of independent and impartial justice by the courts Under the mandate entrusted to me by the United Nations Commission on Human Rights 1 am duty bound to investigate these complaints and report to the same Commission if possible at its fifty-second session next year To facilitate my inquiries 1 will seek the cooperation of al1 those involved in the administration of justice including the Government which under my mandate is requested to extend its cooperation and assistance In resolution 1996134 of 19 April 1996 the Commission took note of this report and of the Special Rapporteur's working methods In his third report E CN 4 1997 32 dated 18 February 1997 the Special Rapporteur informed the Commission of the article in International Commercial Litigation and the lawsuits that had been initiated against him the author the publisher and others He also referred to the notifications of the Legal Counsel of the United Nations to the Malaysian authorities In resolution 1997123 of 11 April 1997 the Commission took note of the report and the working methods of the Special Rapporteur and extended his mandate for another three years In his fourth report E CN 4 1998 39 dated 12 February 1998 the Special Rapporteur reported on further developments with regard to the lawsuits initiated against him In its resolution 1998135 of 17 April 1998 the Commission similarly took note of this report and of the working methods reflected therein 19 As indicated above see paragraph l the note by the SecretaryGeneral was accompanied by an addendum El19981941Add 1 which reads as follows In paragraph 14 of the note by the Secretary-General on the privileges and immunities of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers E 1998 94 it is reported that the 'Government of Malaysia succeeded in staying proceedings in the four lawsuits until September 1998' In this connection the Secretary-General has been informed that on 1 August 1998 Dato' Param Cumaraswamy was served with a Notice of Taxation and Bill of Costs dated 28 July 1998 and signed by the Deputy Registrar of the Federal Court notifying him that the bill of costs of the Federal Court application would be assessed on 18 September 1998 The amount claimed is M$310 000 US$77 500 On the same day Dato' Param Cumaraswamy was also served with a Notice dated 29 July 1998 and signed by the Registrar of the Court of Appeal notifying him that the Plaintiffs bill of costs would be assessed on 4 September 1998 The amount claimed in that bill is M$550 000 US$137 500 20 The Council considered the note by the Secretary-General El19981 94 at the forty-seventh and forty-eighth meetings of its substantive session of 1998 held on 31 July 1998 At that time the Observer for Malaysia disputed certain statements in paragraphs 7 14 and 15 of the note The note concluded with a paragraph 21 containing the SecretaryGeneral's proposa1 for two questions to be submitted to the Court for an advisory opinion 21 'Considering the difference that has arisen between the United Nations and the Government of Malaysia with respect to the immunity from legal process of Mr Dato' Param Cumaraswamy the United Nations Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers in respect of certain words spoken by him 1 Subject only to Section 30 of the Convention on the Privileges and Immunities of the United Nations does the SecretaryGeneral of the United Nations have the exclusive authority to determine whether words were spoken in the course of the performance of a mission for the United Nations within the meaning of Section 22 b of the Convention 2 In accordance with Section 34 of the Convention once the Secretary-General has determined that such words were spoken in the course of the performance of a mission and has decided to maintain or not to waive the immunity from legal process does the Government of a Member State party to the Convention have an obligation to give effect to that immunity in its national courts and if failing to do so to assume responsibility for and any costs expenses and damages arising from any legal proceedings brought in respect of such words 9 $3 On 5 August 1998 at its forty-ninth meeting the Council considered and adopted without a vote a draft decision submitted by its Vice-President following informal consultations After referring to Section 30 of the General Convention the decision requested the Court to give an advisory 75 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION opinion on the question formulated therein and called upon the Government of Malaysia to ensure that al1 judgements and proceedings in this matter in the Malaysian courts are stayed pending receipt of the advisory opinion of the Court which shall be accepted as decisive by the parties El1998lL 491Rev 1 At that meeting the Observer for Malaysia reiterated his previous criticism of paragraphs 7 14 and 15 of the Secretary-General's note but made no comment on the terms of the question to be put to the Court as now formulated by the Council On being so adopted the draft became decision 19981297 see paragraph 1 above 21 As regards events subsequent to the submission of the request for an advisory opinion and more precisely the situation with regard to the proceedings pending before the Malaysian courts Malaysia has provided the Court with the following information the hearings on the question of stay in respect of three of the four cases have been deferred until 9 February 1999 when they are due again to be mentioned in court and when the plaintiff will join in requesting further postponements until this Court's advisory opinion has been rendered and sufficient time has been given to al1 concerned to consider its implications The position in the first of the four cases is the same although it is fixed for mention on 16 December 1998 However it will then be treated in the same way as the other cases As to cost the requirement for the payment of costs by the defendant has also been stayed and that aspect of the case will be deferred and considered in the same way 22 The Council has requested the present advisory opinion pursuant to Article 96 paragraph 2 of the Charter of the United Nations This paragraph provides that organs of the United Nations other than the General Assembly or the Security Council which may at any time be so authorized by the General Assembly may also request advisory opinions of the Court on legal questions arising within the scope of their activities Article 65 paragraph 1 of the Statute of the Court states that tlhe Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request 23 In its decision 19981297 the Council recalls that General Assembly resolution 89 1 gave it authorization to request advisory opinions and it expressly makes reference to the fact that a difference has arisen between the United Nations and the Government of Malaysia within the meaning of Section 30 of the Convention on the Privileges and Immunities of the United Nations with respect to the immunity from legal process of Dato' Param Cumaraswamy the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers 24 This is the first time that the Court has received a request for an advisory opinion that refers to Article VIII Section 30 of the General Convention which provides that al1 differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice unless in any case it is agreed by the parties to have recourse to another mode of settlement If a difference arises between the United Nations on the one hand and a Member on the other hand a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court The opinion given by the Court shall be accepted as decisive by the parties 25 This section provides for the exercise of the Court's advisory function in the event of a difference between the United Nations and one of its Members In this case such a difference exists but that fact does not change the advisory nature of the Court's function which is governed by the terms of the Charter and of the Statute As the Court stated in its Advisory Opinion of 12 July 1973 the existence in the background of a dispute the parties to which may be affected as a consequence of the Court's opinion does not change the advisory nature of the Court's task which is to answer the questions put to it Application for Review of Judgement No 158 of the Dizired Nations Administrative Tribunal Advisory Opinion I C J Reports 1973 p 171 para 14 Paragraph 2 of the Council's decision requesting the advisory opinion repeats expressis verbis the provision in Article VIII Section 30 of the General Convention that the Court's opinion shall be accepted as decisive by the parties However this equally cannot affect the nature of the function carried out by the Court when giving its advisory opinion As the Court said in its Advisory Opinion of 23 October 1956 in a case involving similar language in Article XII of the Statute of the Adminis- trative Tribunal of the International Labour Organisation such decisive or binding effect goes beyond the scope attributed by the Charter and by the Statute of the Court to an Advisory Opinion It in no wise affects the way in which the Court functions that continues to be determined by its Statute and its Rules Nor does it affect the reasoning by which the Court forms its Opinion or the content of the Opinion itself Judgments of the Administrative Tribunal of the I L 0 upon Complaints Made against Unesco Advisory Opinion I C J Reports 1956 p 84 A distinction should thus be drawn between the advisory nature of the Court's task and the particular effects that parties to an existing dispute may wish to attribute in their mutual relations to an advisory opinion of the Court which as such has no binding force Interpretation of Peace Treaties vithBulgaria Hungary and Romania First Phase Advisory Opinion 1 C J Reports 1950 p 71 These particular effects extraneous to the Charter and the Statute which regulate the functioning of the Court are derived from separate agreements in the present case Article VIII Section 30 of the General Convention provides that tlhe opinion given by the Court shall be accepted as decisive by the parties That consequence has been expressly acknowledged by the United Nations and by Malaysia 26 The power of the Court to give an advisory opinion is derived from Article 96 paragraph 2 of the Charter and from Article 65 of the Statute see paragraph 22 above Both provisions requise that the question forming the subject-matter of the request should be a legal question This condition is satisfied in the present case as al1 participants in the proceedings have acknowledged because the advisory opinion requested relates to the interpretation of the General Convention and to its application to the circumstances of the case of the Special Rapporteur Dato' Param Cumaraswamy Thus the Court held in its Advisory Opinion of 28 May 1948 that tlo determine the meaning of a treaty provision is a problem of interpretation and consequently a legal question Conditions of Admission of a State to Membership in the United Nations Article 4 of the Charter Advisory Opinion 1948 1 C J Reports 1947-1948 p 61 27 Article 96 paragraph 2 of the Charter also requires that the legal questions forming the subject-matter of advisory opinions requested by authorized organs of the United Nations and specialized agencies shall arise within the scope of their activities The fulfilment of this condition has not been qÜestioned by any of the participants in the present proceedings The Court finds that the legal questions submitted by the Council in its request concern the activities of the Commission since they relate to the mandate of its Special Rapporteur appointed to inquire into substantial allegations concerning and to identify and record attacks on the independence of the judiciary lawyers and court officials Mr Cumaraswamy's activities as Rapporteur and the legal questions arising therefrom are pertinent to the functioning of the Commission accordingly they corne within the scope of activities of the Council since the Commission is one of its subsidiary organs The same conclusion was reached by the Court in an analogous case in its Advisory Opinion of 15 December 1989 also given at the request of the Council regarding the Applicability of Article VI Section 22 of the Convention on the Privileges and Imrnunities of the United Nations I C J Reports 1989 p 187 para 28 28 As the Court held in its Advisory Opinion of 30 March 1950 the permissive character of Article 65 of the Statute gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request Interpretation of Peace Treaties with Bulgaria Hungary and Romania First Phase Advisory Opinion 1 C J Reports 1950 p 72 Such discretionary power does not exist when the Court is not competent to answer the question forming the subject-matter of the request for example because it is not a legal question In such a case the Court has no discretion in the matter it must decline to give the opinion requested Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter Advisory Opinion 1 C J Reports 1962 p 155 cf Legality of the Use by a State of Nuclear Weapons in Armed Conflict I C J Reports 1996 I p 73 para 14 However the Court went on to state in its Advisory Opinion of 20 July 1962 that even if the question is a legal one which the Court is undoubtedly competent to answer it may nonetheless decline to do so 1 C J Reports 1962 p 155 29 In its Advisory Opinion of 30 March 1950 the Court made it clear that as an organ of the United Nations its answer to a request for an advisory opinion represents its participation in the activities of the Organization and in principle should not be refused Interpretation of Peace Treaties with Bulgaria Hungary and Romania First Phase Advisory Opinion I C J Reports 1950 p 71 moreover in its Advisory Opinion of 20 July 1962 citing its Advisory Opinion of 23 October 1956 the Court stressed that only 'compelling reasons' should lead it to refuse to give a requested advisory opinion Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter Advisory Opinion I C J Reports 1962 p 155 See also for example Applicability of Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations Advisory Opinion 1 C J Reports 1989 pp 190- 79 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION 191 para 37 and Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I p 235 para 14 30 In the present case the Court having established its jurisdiction finds no compelling reasons not to give the advisory opinion requested by the Council Moreover no participant in these proceedings questioned the need for the Court to exercise its advisory function in this case 31 Article 65 paragraph 2 of the Statute provides that qluestions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required In compliance with this requirement the Secretary-General transmitted to the Court the text of the Council's decision paragraph 1 of which reads as follows 1 Requests on a priority basis pursuant to Article 96 paragraph 2 of the Charter of the United Nations and in accordance with General Assembly resolution 89 1 an advisory opinion from the International Court of Justice on the legal question of the applicability of Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations in the case of Dato' Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary-General and on the legal obligations of Malaysia in this case 32 Malaysia has asserted to the Court that it had at no time approved the text of the question that appeared in El1998lL 49 or as eventually adopted by ECOSOC and submitted to the Court and that it never did more than 'take note' of the question as originally formulated by the Secretary-General and submitted to the ECOSOC in document E11998194 It contends that the advisory opinion of the Court should be restricted to the existing difference between the United Nations and Malaysia In Malaysia's view this difference relates to the question as formulated by the Secretary-General himself see paragraph 20 above of whether the latter has the exclusive authority to determine whether acts of an expert including words spoken or written were performed in the course of his or her mission Thus in the conclusion to the revised version of its written statement Malaysia States inter uliu that it considers that the Secretary-General of the United Nations has not been vested with the exclusive authority to determine whether words were spoken in the course of the performance of a mission for the United Nations within the meaning of Section 22 b of the Convention In its oral pleadings Malaysia maintained that in implementing Section 30 ECOSOC is merely a vehicle for placing a difference between the Secretary-General and Malaysia before the Court ECOSOC does not have an independent position to assert as it might have had were it seeking an opinion on some legal question other than in the context of the operation of Section 30 ECOSOC is no more than an instrument of reference it cannot change the nature of the difference or alter the content of the question 33 In the written statement presented on behalf of the SecretaryGeneral the Legal Counsel of the United Nations requested the Court to establish that subject to Article VIII Sections 29 and 30 of the Convention the Secretary-General has exclusive authority to determine whether or not words or acts are spoken written or done in the course of the performance of a mission for the United Nations and whether such words or acts fa11 within the scope of the mandate entrusted to a United Nations expert on mission In this submission it has also been argued that such matters cannot be determined by or adjudicated in the national courts of the Member States parties to the Convention The latter position is coupled with the Secretary-General's right and duty in accordance with the terms of Article VI Section 23 of the Convention to waive the immunity where in his opinion it would impede the course of justice and it can be waived without prejudice to the interests of the United Nations 34 The other States participating in the present proceedings have expressed varying views on the foregoing issue of the exclusive authority of the Secretary-General 35 As the Council indicated in the preamble to its decision 19981297 that decision was adopted by the Council on the basis of the note submitted by the Secretary General on Privileges and Immunities of the Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers see paragraph 1 above Paragraph 1 of the operative part of the decision refers expressly to paragraphs 1 to 15 of that note but not to paragraph 21 containing the two questions that the Secretary-General proposed submitting to the Court see para- 81 I M M U N I FROM LEGAL PROCESS ADVISORY OPINION graph 20 above The Court would point out that the wording of the question submitted by the Council is quite different from that proposed by the Secretary-General 36 Participants in these proceedings have advanced differing views as to what is the legal question to be answered by the Court The Court observes that it is for the C o u n c i l and not for a member State nor for to formulate the terms of a question that the the Secretary-General Council wishes to ask 37 The Council adopted its decision 19981297 without a vote The Council did not pass upon any proposa1 that the question to be submitted to the Court should include still less be confined to the issue of the exclusive authority of the Secretary-General to determine whether or not acts including words spoken or written were performed in the course of a mission for the United Nations and whether such words or acts fa11 within the scope of the mandate entrusted to an expert on mission for the United Nations Although the Summary Records of the Council do not expressly address the matter it is clear that the Council as the organ entitled to put the request to the Court did not adopt the questions set forth at the conclusion of the note by the Secretary-General but instead formulated its own question in terms which were not contested at that time see paragraph 20 above Accordingly the Court will now answer the question as formulated by the Council - 38 The Court will initially examine the first part of the question laid before the Court by the Council which is the legal question of the applicability of Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations in the case of Dato' Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary-General 39 From the deliberations which took place in the Council on the content of the request for an advisory opinion it is clear that the reference in the request to the note of the Secretary-General was made in order to provide the Court with the basic facts to which to refer in making its decision The request of the Council therefore does not only pertain to the threshold question whether Mr Cumaraswamy was and is an expert on mission in the sense of Article VI Section 22 of the General Convention but in the event of an affirmative answer to this question to the consequences of that finding in the circumstances of the case 40 Pursuant to Article 105 of the Charter of the United Nations 1 The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes 2 Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization 3 The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose Acting in accordance with Article 105 of the Charter the General Assembly approved the General Convention on 13 February 1946 and proposed it for accession by each Member of the United Nations Malaysia became a party to the General Convention without reservation on 28 October 1957 41 The General Convention contains an Article VI entitled Experts on Missions for the United Nations It is comprised of two Sections 22 and 23 Section 22 provides Experts other than officials coming within the scope of Article V performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions including time spent on journeys in connection with their missions In particular they shall be accorded b in respect of words spoken or written and acts done by them in the course of the performance of their mission immunity from legal process of every kind This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations 42 In its Advisory Opinion of 14 December 1989 on the Applicability of Article VI Section 22 of the Convention on 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 exer- 83 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION cise 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 Rap- porteur who is appointed by the Sub-Commission on Prevention of Dis- crimination 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 Rap- porteurs appointed by the Human Rights Commission of which the Sub- Commission is a subsidiary organ It may be observed that Special Rap porteurs 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 Commis- sion 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 to inquire into any substantial allegations transmitted to him or her and report his or her conclusions thereon to identify and record not only attacks on the independence of the judiciary lawyers and court of cials 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 0 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 nds that Mr Cumara- swamy 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 capa 25 city 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 47 The Court will now consider whether the immunity provided for in Section 22 b applies to Mr Cumaraswamy in the specific circumstances of the case namely whether the words used by him in the interview as published in the article in Intern ztionalCommercial Litigation November issue 1995 were spoken in the course of the performance of his mission and whether he was therefore immune from legal process with respect to these words 48 During the oral proceedings the Solicitor General of Malaysia contended that the issue put by the Council before the Court does not include this question She stated that the correct interpretation of the words used by the Council in its request does not extend to inviting the Court to decide whether assuming the Secretary-General to have had the authority to determine the character of the Special Rapporteur's action he had properly exercised that authority and added Malaysia observes that the word used was 'applicability' not 'application' 'Applicability' means 'whether the provision is applicable to someone' not 'how it is to be applied' 49 The Court does not share this interpretation It follows from the terms of the request that the Council wishes to be informed of the Court's opinion as to whether Section 22 b is applicable to the Special Rapporteur in the circumstances set out in paragraphs 1 to 15 of the note of the Secretary-General and whether therefore the Secretary-General's finding that the Special Rapporteur acted in the course of the performance of his mission is correct 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 plrivileges and immunities are granted to experts in the interests of the United Nations and not for the persona1 benefit of the individuals themselves In exercising protection of United Nations experts the SecretaryGeneral 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 T o 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 Internutionul Commerciul 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 al1 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 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 87 IMMUNlTY FROM LEGAL PROCESS ADVISORY OPINION 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 on 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 interna1 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 abovementioned 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 65 According to Article VIII Section 30 of the General Convention the opinion given by the Court shall be accepted as decisive by the parties to the dispute Malaysia has acknowledged its obligations under Section 30 Since the Court holds that Mr Cumaraswamy is an expert on mission who under Section 22 b is entitled to immunity from legal process the Government of Malaysia is obligated to communicate this advisory opinion to the competent Malaysian courts in order that Malaysia's international obligations be given effect and Mr Cumaraswamy's immunity be respected 66 Finally the Court wishes to point out that the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their officia1 capacity The United Nations may be required to bear responsibility for the damage arising from such acts However as is clear from Article VIII Section 29 of the General Convention any such claims against the United Nations shall not be dealt with by national courts but shall be settled in accordance with the appropriate modes of settlement that tlhe United Nations shall make provisions for pursuant to Section 29 Furthermore it need hardly be said that al1 agents of the United Nations in whatever officia1 capacity they act must take care not to exceed the scope of their functions and should so comport themselves as to avoid claims against the United Nations 67 For these reasons THECOURT Is o f the opinion 1 a By fourteen votes to one That Article VI Section 22 of the Convention on the Privileges and Immunities of the United Nations is applicable in the case of Dato' Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the lndependence of Judges and Lawyers I N F A V U R President Schwebel Vice-President Weeramantry Judges Oda Bedjaoui Guillaume Ranjeva Herczegh Shi Fleischhauer Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek AGAINST Judge Koroma b By fourteen votes to one That Dato' Param Cumaraswamy is entitled to immunity from legal process of every kind for the words spoken by him during an interview as published in an article in the November 1995 issue of Internutional Commercial Litigation President Schwebel Vice-President Weeramantry Judges Oda Bedjaoui Guillaume Ranjeva Herczegh Shi Fleischhauer Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek IN FAVOUR AGAINST Judge Koroma 2 a By thirteen votes to two That the Government of Malaysia had the obligation to inform the Malaysian courts of the finding of the Secretary- 90 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION General that Dato' Param Cumaraswamy was entitled to immunity from legal process IN FAVOUR President Schwebel Vice-President Weeramantry Judges Bedjaoui Guillaume Ranjeva Herczegh Shi Fleischhauer Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek AGAINST Judges Oda Koroma 6 By fourteen votes to one That the Malaysian courts had the obligation to deal with the question of immunity from legal process as a preliminary issue to be expeditiously decided in limine litis I N FAVOUR President Schwebel Vice-President Weeramantry Judges Oda Bedjaoui Guillaume Ranjeva Herczegh Shi Fleischhauer Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek AGAINST Judge Koroma 3 Unanimously That Dato' Param Cumaraswamy shall be held financially harmless for any costs imposed upon him by the Malaysian courts in particular taxed costs 4 By thirteen votes to two That the Government of Malaysia has the obligation to communicate this Advisory Opinion to the Malaysian courts in order that Malaysia's international obligations be given effect and Dato' Param Cumaraswamy's immunity be respected Prrsident Schwebel Vice-President Weeramantry Judges Bedjaoui Guillaume Ranjeva Herczegh Shi Fleischhauer Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek I N FAVOUR AGAINST Judges Oda Koroma Done in English and in French the English text being authoritative at the Peace Palace The Hague this twenty-ninth day of April one thousand nine hundred and ninety-nine in two copies one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations Signed Stephen M SCHWEBEL President Signed Eduardo VALENCIA-OSPINA Registrar 91 IMMUNITY FROM LEGAL PROCESS ADVISORY OPINION Vice-President WEERAMANTRY and Judges ODA and REZEKappend separate opinions to the Advisory Opinion of the Court appends a dissenting opinion to the Advisory Opinion Judge KOROMA of the Court Initialled S M S Initialled E V O