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votes of the Convec.tion the United I\Jations "applicable" in the case Param Cumaraswamy, a Mala.ysian jurist who was Special Rapporteur the Independence of Judges the United Nations Commission on Human 1994., that he hom legal process for the words spoken him during an i.nterview as published in "the obligation to comrnunicate [the] advisory opinion Malaysia's international obligations given effect aiid [Mr.] Cumaraswamy's immunity be respected". The Court was conlposed as follows;: Ji~dges Oda, Bedjaoui, Guillaume. Ranjava, Herczegh, Shi, I;leischhauer, Koroma, Vereshchetin, Higgins, Pamt-Aranguren, Kooijmans, Rezek; Registrar The full text Parain entitled to immuility from legal process every kind for the words the November 1995 blterilcrtioilcrl Co~izn~ercial FAVOUR: President Schwebel; Vice-President Weeram'antry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Fleischhauer, Vereshchetin, Kooijnians, That tlie Government of Malaysia inform the Malaysian courts of the finding of Ranjeva, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, AGAINST: Judge Koroina; Parain Cuinaraswamy shall harmless for ally imposed upon hitn the Malaysian particular taxed costs; to two, Goverilunent of Malaysia has the obligation to comniunicate this advisory opinion the Malaysian Malaysia's international obligations given effect Paran1 Cuinaraswamy's imniunity be respected; him i.n Malaysian civil courts, Commissi.on, in April 1997, renewed his mandate an additional three years. result of an ai-ticle basis of an which the Special Rapporteur gave to (International Cornliiercial Litigation) in November 1995, two commercial cotnpanie:; in Malaysia asserted that the said article contained defarnatory words that had them into public scandal, odium and contenlpt". company filed suit agai

nst him for damages amounting M$ 30 niillion (approxitnately US$ 12 million each), exetiiplary damages for behalf of the Secretary-General, the Legal the United Nations considered the circutlistances of the interview and of t11.e controverted passages of the determined that :Data' Paratn Cumaraswamy was intei-viewed his official capacity Special Rapporteur on the Independence of Judges and Lawyers. that referred to his United Nations capacity to the Speci.al Rapporteur's global mandate to investigate allcgi~tions concerning the independence the judiciary that tlie quoted passages related al1ega:iions. January 1997, the Legal Counsel, in verbale, "requested the competelit Malaysian authorities to promptly advise the Malaysian courts of the Special liapporteur's immunity froin with respect to that particular complaint. On January 1997, the Special Rapporteur Eligh Court of Kuala trial court suit been filed) to set aside and/or strike out the plaintiffs' writ, ground that the words that wcre the subject of the suits been the course of perforlning his mission fclr the United Special Rapporteur the Itidependence of Judgl:~ and Lawyers. issued a note on 7 March 1997 confirming that words which cons1:itute the basis of plaintiffs' complaint in this case were the Special Rapporteur the course of his nlission" and that the Secretary-General maintains that Dato' Param. Cumaraswamy is illlmune legal process respect The Special Rapporteur filed this note in suplport of his above-mentioned of representations that had 111ade Office of Legal Affairs, certificate filed the Minister for Foreign Affai.rs with the court failed to any way to liote that the Secretary-General had issued days earlier and had in the meantime been the court, nor di.d indicate that this respect, i.e., in deciding whet

her particular words 01- expert fell within thc scope of his mission, the cletern~ination could exclusively the Secretary-General, that such determination coiiclusive effect iind therefore had .to accepted as such by tlie spite of repeated the Legal Counsel, the Minister for Foreign Affairs refused to amend his certificate or to s.upplement it in the manner urged by the United Nations. On 28 Julie competent judge 1-Tigl.1 COLII-I for K~illil L~111llx~r coiicluded she was hold is absolutely protccted the immunity in part because considered that the Secretary-General's note was merely "an opinion" with scant probative value and no binding force upon the court and that Minister for Foreign Affairs' certificate appear to be no more than bland statement as state of fact pertaining to the Defendant's status and Special Rapporteur and appears to have room for The Court ordered that the Special Rapporteur's motion be dismissed costs, that costs be taxed and that he file and serve his defence within 14 days. On July, the Court of Appeal dismissed Mr. Cmnaraswamy's In July 1997, the Legal Counsel called the Malaysian Government to intervene in the current proceedings the burden of any further defence, including any expenses and taxed costs resulting therefrom, could assumed by the Government; to hold Mr. Cumaraswamy harmless in respect of the expenses already incurred or that were being taxed to him in respect of the proceedings so as prevent the accumulation additional expenses and to submit his immunity was definitively resolved between the United Nations and the Government, to support to have the High Court proceedings stayed resolution. The Legal Counsel referred to the provisions for the settlement of differences arising out of the interpretation application of the 1946 Convention that might arise the Organization member State, whi

ch are set out in Section 30 of the Convention, and indicated that Government decided that could not or protect and to hold harmless the Special Rapporteur indicated manner, difference within the meaning of those provisions might be considered to have arisen between the the Government of Malaysia. Section 30 of Convention provides All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in case it is agreed the parties to have recourse to another mode of settlement. Tf between the United Nations Member on the other hand, request shall be made advisory opinion any legal question involved in Article 96 the Charter and Article the Statute the Court. The opinion given Court shall be accepted decisive by the another lawsuit was filed against the Special Rapporteur. On note corresponding to the one March 1997 and also cominunicated verbale essentially the same to the Permanent Representative of Malaysia request that it presented formally the competent Malaysian court the Government. On November 1997. new plaintiffs filed third and fourth lawsuits against the Special Rapporteur. On 27 October and 32 November identical certiiicates the Special Rapporteur's iiiinlunity. prese:nt established its jurisdiction, evident, namely, to finds no compelling reason:; the advisory United Nations to entrust missions to persons the Council. Moreover, no participant these who not have the status of an official of proceedings questioned the Court to exercise its Organization, to guarantee 'such privileges f~mction in this case. and imnnunities their functions'. The essence of The .yzlestiorl on which opinion is requesied their administrative but in the nature t~aras. of their Repor-ts 1989, p. 194, As the Council indicated preamble its decision 19981397, th

at was adopted basis of note submitted "Privileges and Immunities of the Special Rapporteur of Commissioil on Human Independence of and Lawyers". Paragraph 1 of the operative refers expressly to paragraphs 1 .to to paragraph 21, the Secretary-General submitting to the Council different from the Secretary-General. these proceedings, including Malaysia other States, have adv:3ilced differing views as to what is the legal questioii to be answered by the Court. The Court observes that it is for the Council - and not fbr a member State: or the Secretary-Gene:ral -to formulate the tem~s of a question that Council wishes to ask. Accordingly, the answer the question Coui~cil. Applicabilit?, of'Article J!I, Section 22, of th~ General Conve~ztioiz to Special Rcrpporteurs of'the .Hzinzan Rights Cor~zrnissiorl (paras. 38-46) The Court initially examines the first part ofthe laid 'before the Court "the legal question of the applicability of Article Section 23, of the Cc~nvention on the Pivileges Immunities of the United Nations in the c:ase of Dato' E'arain Special Rapporteur of the ommi mission on I-Imnam Rights on independence of lawyers, taking into ilccount the c:ircumstances set out of the by the Secretary-General ...". From the deliberations .which took place in .:;he the request of Council does the threshold Cumasaswamy was an expert mission sense of Article VI, Section 22, of the Convention but, the event of affirmative answer to tl~is the consequences in the circ~unstances of the The Court to the reservation, on 28 October October of Section of Article Convention is 2.1 The Court then recalls ithat in its Advisory Opinion of 14 December 1989 "Mazilzr" case) it stated: same Advisory Opinion. it concluded Sub- Prevention of Discriinination of Minorities mission must missio

n meaning of Article VI, Section 22, of the General Convention. The Court finds the same conclusion be drawn with regard to Special Rapporteurs appointed the Sub-Commission is a subsidiary organ. Rapporteks of the usually are entrusted not only with a research mission but with the task of monitoring human them. But what is that they entrusted a mission the United therefore entitled to the privileges immunities provided Article VI, Section 22, independent exercise of their examining Mr. Cumaraswamy's mandate, Court finds that he must an expert of Article VI, Section 22, April 1994, virtue of capacity the provisions of this Section the time of his statements at issue, that they continue to Court finally Malaysia has acknowledged that Mr. Cumaraswamy, Commission, is expert on mission such experts enjoy with States parties, including those of which they the territory of which they reside. Malaysia United Nations are in full agreement these points, are the other States participating the proceedings. qf Article VI, Sectioir 22, of the General Cor~ventioil ii~ the spec13c cii*cui~zsta~rces ofthe The Court immunity (b) applies Cumaraswamy in the specific circumstances of the whether the him in the interview, published in the Inten~ational Coii~inercial Litigatioii (Noveinber 1995 issue), were spoken course of of his mission, was therefore from legal process respect to the process of determining a particular expert prevailing circumstances, to the immunity provided Section 22 (b), the Secretary- Nations has a role to play. Secretary-General, as chief administrative officer-of under an obligation to respect it. The MalaySia~1 courts did not rille in linzirle 1iti.s on the imniu~iity of ::lie Special Rappcrrteur, thereby nullifying thc essence of the immunity rule contained in Section 22 (b). Moreover, costs were while the question

iiiirnunity still unresolved. indicated above, the conduct of State - even a1 independent of the executive - be regarcled act of Consequently, Malaysia did accordatice The Court adds that the immunity froni process to which finds Mr. Cumaraswamy entitled entails (2umaraswamy financially harmless any costs imposcd him by the Malaysian i:n further observes that, according to Article General Convention, the opinion Coi~rt shall be accepted as decisive by the p;arties its obligations Court :holds Cumaraswamy is under Section 22 entitled to legal process, Government of Malaysia is obligated to communicate this advisory opinion to competent Malaysian coul-ts, international obligations be be Court points out that the question of immunity from legal the issue of comnpr:nsation for any damages as a result of acts perfoiined the United Nations its agents acting their official capacity. The lJnited Nations may be required to bear responsibility for the damage arising from However, as Section 29, of the such compensation claims against United Nations shall be dealt with by national courts but Nations shall The Court furthermore need said that all agents of they act, must take care not to exceed the scope of their functions, so cotnport theniselves United Nations. Sepurcrte opirzion of Vice-President Weer~lc;!mantly Vice-President Weeramantry, separate opinion, stresses his agreement with the principles set out in the COLI~I.'~ national courts of any finding Secretay-General Nations agent, and that the Secretary-General's finding carries presilmption of iinrnu~iity which can only aside for the co~npellinp reasons. T11is draws attention the differences immuility of State fiinctionaries United Nations fu~ictioi~ interests of coriitiiunity the United Nations, and not on of any particular jilrispru

de~ice that has grown rights of domestic courts deternjinc questior~s the immunities reprcseiitatives or officials their actions in another State necessarily applicable its entirety where United Nations doiiiestic court is free to disregard the determination of the Secretary-General their immunities, Nations activity for uniformity relating to matter, irrespective of where particular is not conducive to uniforni system of international administrative law different privileges depending where they function. This underlines coiiclusiveness of Secretary-General's deterinination. ill the media, that they act within limits performance of their opiniolz c!f J~rdge Odci out that. while the Court to reply on the issue relating to the legal to Mr. Cumaraswamy, Rapporteur of tlie United Commission on Human with regard the words he spoke had, formulated differently, then being whether Nations Secretary-General exclusive authority deteniiine Cumaraswamy would entitled to legal immunity. Judge expresses his apprehensioii that the Court's Advisory Opinion seems to more coiicerned Secretary- General's competence, rather than im~nunity Judge Oda considers that the issue to decided is Cumaraswamy should immune froni process of Malaysian courts of what statcd in the i1ite1-view with business journal account of defamation suits brought against courts by certain private companies. The Judge Oda, is related riot to the wor.ds Mr. Cumaraswainy in tlte cotrrse of the perforntance of his rr1issiort the Commission on Human Rights. Judgc that the Special Rapporteur maintained with the media in con~iection his mandate general within special rapporteur. In this respect, Judge conclusion of the Coui-t set out (1) (N), and paragraph the operative part. Oda is fill1 agreement with the Court whcn operative part the obligation to deal wit