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Advisory jurisdiction—Convention on the Privileges and Immunities of the United Nations—immunity from legal process of expert on mission appointed by UN Commission on Human Rights—effect of UN Secretary-General's assertion of immunity—procedural priority to be accorded assertion of immunity in municipal courts

Published online by Cambridge University Press:  27 February 2017

Peter H. F. Bekker
Peter H. F. Bekker*
Affiliation:
White & Case LLP, New York
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International Decisions
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American Journal of International Law , Volume 93 , Issue 4 , October 1999 , pp. 913 - 923
Copyright
Copyright © American Society of International Law 1999

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References

1 See Resolutions Adopted by the General Assembly During the First Part of its First Session, UN Doc. A/64 (1946), at 33. For the text of the Convention, see Convention on the Privileges and Immunities of the United Nations, February 13, 1946, 1 U.N.T.S. 15, UN Doc. ST/LEG/SER.B/10 (1959), at 184 et seq. At present, 137 UN member states are parties to the General Convention.

Section 22 reads as follows:

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 dieir 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 any kind.

The text of the General Convention was drafted, pursuant to Article 105 of the UN Charter, by the UN Preparatory Commission in 1945 and the initial draft did not contain anything corresponding to die present Article VI, of which Section 22 forms a part. Article VI was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee of the General Assembly to examine the draft. Consequendy, no guidance on Section 22 may be found in die travaux préparatoires of the General Convention.

2 Pursuant to Articles 55(c) and 68 of the UN Charter, ECOSOC, by resolution 5(1) of February 16, 1946, supplemented on February 18, 1946, created the Commission on Human Rights as one of ECOSOC’s organs.

3 With regard to one specific Malaysian case (the Ayer Molek case), Cumaraswamy, who was repeatedly referred to in the article in his official capacity as Special Rapporteur, stated that it looked like “a very obvious, perhaps even glaring example of judge-choosing” and that complaints were rife that “certain highly placed personalities in the business and corporate sectors are able to manipulate the Malaysian system of justice.” However, he also stressed that he had not completed his investigation and that it would be unfair to name any of the people involved. See Advisory Opinion, infra note 8, at paras. 12–13.

4 Four separate law suits were filed on December 12, 1996, July 10, 1997, October 23, 1997, and November 21, 1997, respectively. The summary of the description of the Malaysian court proceedings given below relates only to the first of such suits.

5 On June 28, 1997, the High Court of Malaysia at Kuala Lumpur (Civil Division), the trial court of first instance, rejected Cumaraswamy’s petition to set aside the suit on grounds that he is immune from legal process pursuant to Section 22(b) of the General Convention, concluding that it was “unable to hold that the Defendant is absolutely protected by the immunity he claims.” See MBf Capital Berhard v. Dato’ Param Cumaraswamy, Case No. S3-23-68-1996 (unpublished; text on file with the author), at 38 (H.C. Malaysia, Kuala Lumpur) (June 28, 1997) [hereinafter H.C. slip op.]. The court decided to postpone its determination of the Cumaraswamy’s immunity until after a full trial of the merits of the case and ordered him to file his defense within two weeks from the judgment. On July 8, 1997, the Malaysian Court of Appeal, per its President, heard and rejected the motion for a stay of execution on appeal. The substantive appeal was heard by a threejudge panel on August 20–21, 1997, and dismissed by unanimous judgment on October 20, 1997. See MBf Capital Berhard v. Dato’ Param Cumaraswamy, Case No. W-02-323-1997 (Ct. of App. Malaysia) (Oct. 20, 1997) (unpublished; text on file with the audror) [hereinafter C.A. slip op.]. The appeals courts was presided over by ajudge who also sat on one of the cases on which Cumaraswamy commented in the impugned interview. The judge refused to recuse himself. On February 19, 1998, the Federal Court of Malaysia summarily dismissed, by a unanimous decision, Cumaraswamy’s application for leave to admit his appeal as one with merit for appeal. The Federal Court noted that it was not dealing with a sovereign or a full-fledged diplomat, but merely with someone who has to act with a mandate of an unpaid part-time provider of information. It agreed with the lower courts that the issue of immunity from legal process would be decided at the end of a full trial. Subsequently, the Malaysian courts did agree to stay the proceedings pending the outcome of proceedings in The Hague.

6 The High Court denied that the Secretary-General alone possesses the right to determine whether the Special Rapporteur’s words were spoken in the course of a mission for the United Nations. In its view, the Secretary-General’s certificate was merely an “opinion and has no more probative value than a document which appears wanting in material particulars” and has no binding force upon the court. See H.C. slip op., supra note 5, at 25. The court determined that neither the General Convention nor the Malaysian implementing legislation conferred any power or authority on the Secretary-General to determine or declare that the Special Rapporteur uttered the alleged defamatory statements in his official capacity. The High Court also found that a certificate filed by the Malaysian Minister for Foreign Affairs on March 12, 1997, which stated that immunity applies “only in respect of words spoken or written and acts done by [the Special Rapporteur] in the course of the performance of his mission” without referring to the Secretary-General’s finding, “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.” See id. at 29. The Court of Appeals agreed with the High Court. In its opinion, the General Convention and the Malaysian legislation merely confirm the Secretary-General’s power to waive immunity, but they fail to grant him the authority to make the kind of determination of fact he made in his certificate. That factual determination was a question for the Malaysian courts to decide at a later stage. See C.A. slip op., supra note 5, at 28–30.

7 In accordance with Article 66(2) of the ICJ Statute, written statements were filed by the UN Secretary-General and by Costa Rica, Germany, Italy, Malaysia, Sweden, the United Kingdom and the United States. The filing of a written statement by Greece on October 12, 1998, and by Luxembourg on October 29, 1998, was also authorized. The Secretary-General and Costa Rica, Malaysia and the United States also filed written comments on the statements pursuant to Article 66(4) of the Statute.

8 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Apr. 29, 1999, available at <http://www.icj-cij.org>, para. 67 (operative paragraph) [hereinafter Advisory Opinion].

9 See id. at para. 24. Section 30 provides as follows:

All 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 setdement. 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.

Another case brought before the Court in 1989, representing the first time that ECOSOC requested the Court to give an advisory opinion concerning the applicability of Section 22 to a Special Rapporteur, namely one appointed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, was brought pursuant to Article 96(2) of the UN Charter and not on the basis of Section 30 of the General Convention. See Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities Of the United Nations, 1989 I.C.J. Rep. 177, 194 para. 47 (Dec. 15) [hereinafter Mazilu Opinion]. See also Peter H.F. Bekker, The Legal Position of Intergovernmental Organizations—Afunctional Necessity Analysis of Their Legal Status and Immunities 200 (1994). In 1989, ECOSOC invoked Article 96 of the Charter in a successful effort to circumvent Section 30, to which Romania had attached reservations. In the present case, ECOSOC had no such concerns, given that Malaysia ratified the General Convention without attaching any reservations.

10 See Advisory Opinion, supra note 8, at paras. 25–26 (citing Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, 1973 I.C.J. Rep. 166, 171 para. 14 (July 12), Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, 1956 I.C.J. Rep. 77,84 (Oct. 23), and Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, 1950 I.C.J. Rep. 65, 71 (Mar. 30)). See also Roberto Ago, Binding Advisory Opinions of the International Court of Justice, 85 AJIL 439 (1991), and response by Derek Bowett, 86 AJIL 342 (1992).

11 According to Art. 65(1) of the ICJ Statute: “The 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” (emphasis added). ICJ Statute Art. 65, para. 1. See also Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 565–68 (1995), calling this the Court’s “power of appreciation.”

12 See Advisory Opinion, supra note 8, at paras. 32–37.

13 See id. paras. 39 and 48–49. The Court was able to consider the circumstances of the Special Rapporteur’s case because of a specific element of the question embodied in ECOSOC’s request, namely “taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary-General.” See Note by the Secretmy-General on Privileges and Immunities of the Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers, UN Doc. E/1998/94 and Add. 1 (July 28/Aug. 3, 1998), reprinted in id. para. 10.

14 Id. para. 42 (citing Mazilu Opinion, supra note 9, 1989 I.C.J. Rep 177, 194, para. 47). For a summary of the 1989 opinion, see the case note by Terry Gill in 84 AJIL 742 (1990).

15 The Special Rapporteur’s mandate is set forth in resolution 1994/41 adopted by the Commission on Human Rights on March 4, 1994, and endorsed by ECOSOC in its decision 1994/251 of July 22, 1994. By its resolution 1997/23 of April 11, 1997, the Commission on Human Rights renewed the Special Rapporteur’s mandate for an additional three years. See Advisory Opinion, supra note 8, at paras. 44–45. Under his mandate, the Special Rapporteur is expected to (a) inquire into any substantial allegations transmitted to him and report his conclusions diereon; (b) identify and record not only attacks on the independence of die judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence; and (c) study important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers.

16 The vote on this part of the question was 14–1 (Judge Koroma dissenting). See Advisory Opinion, supra note 8, at para. 67(1)(a). Even if the Special Rapporteur had ceased to be a special rapporteur, the second sentence of Section 22(b) of the General Convention provides that “immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations.”

17 See id. at para. 50 (citing Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. Rep. 174, 184 (Apr. 11)).

18 See id. at paras. 13 and 54. In the impugned article, wherever quoted remarks were attributed to the Special Rapporteur, it was expressly stated that the remarks were made in his capacity as Special Rapporteur and that he had not finished his investigations, and therefore that he had not yet made up his mind with regard to any conclusions to be drawn from such investigations. Thus, the statement of the Malaysian Court of Appeal that “the article in itself does not expressly declare that the defendant was interviewed and spoke the alleged defamatory words as Special Rapporteur” is manifestly incorrect. See C.A. slip op., supra note 5, at 20.

19 See id. at para. 56. The vote on this part of the question was 14–1 (Judge Koroma dissenting). See id. para. 67(1)(b). Judge Koroma denied that there was in fact a dispute between Malaysia and the United Nations whether the General Convention applied to the Special Rapporteur as such. In his view, the real question was whether the Secretary-General is vested with exclusive authority in Section 22 matters. Judge Koroma believed that the Court should have exercised its judicial discretion and declined to answer the question put to it. Dissenting opinion by Judge Koroma, Advisory Opinion, supra note 8, at paras. 15, 21, 23.

20 Under Section 34 of the General Convention, Malaysia has undertaken to “be in a position under its own law to give effect to the terms of [the] Convention” through the enactment of appropriate legislation. It is not clear whedier Malaysia in fact has complied with this provision, given that the Malaysian courts have interpreted Malaysia’s legislation to be narrower in scope and meaning than the terms of the General Convention.

21 See Advisory Opinion, supra note 8, at para. 59.

22 See id. paras. 60–61.

23 See id. para. 62. The vote on this part of the question was 13–2 (Judges Oda and Koroma dissenting). See id. para. 67(2)(a). In his separate opinion, Judge Rezek argued 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. In his view, the Government can accomplish this by using all the means at its disposal in relation to the judiciary in order to have the immunity applied, in exacdy the same way as it defends its own interests and positions before the courts.

24 Id. para. 63.

25 Even though the Malaysian court rulings left open the question of Cumaraswamy’s immunity, their consequence was that he was ordered to defend himself on the merits of the suits filed against him and that the courts arrogated to themselves the power to determine his capacity and the scope of his mission or mandate, in direct denial of the Secretary-General’s assertions. See C.A. slip op., supra note 5, at 33, 44:

It is clear that the capacity in which the defendant spoke the impugned words is intertwined with his mandate. The former is, as we have earlier said, a matter for the courts to decide. It follows that the latter must also be resolved in like fashion. In our judgment the question whether the defendant exceeded the terms of his mandate is not a matter for the Secretary General to decide. It is a question that the court must determine according to the evidence presented at trial.

The Court of Appeal went so far as to say that “[i]t appears that the Secretary General has asserted the defendant’s immunity in terms that clearly fall outside the scope of the General Convention and the [Malaysian implementing legislation.]” Id. at 34.

26 See Advisory Opinion, supra note 8, at para. 63. The vote on this part of the question was 14–1 (Judge Koroma dissenting). See id. para. 67(2)(b).

27 The vote on the last part of the question was 13–2 (Judges Oda and Koroma dissenting). See id. para. 67(4).

28 In addition to the dispute settlement mechanism provided in Section 30 of the General Convention with regard to disputes between the United Nations and a member state, Section 29(a) provides that the United Nations shall make provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party. Section 29 protects the interests of individuals or corporations that have a dispute with the United Nations. Pursuant to Section 29, the United Nations has regularly made provision in its contracts for recourse to binding arbitration in cases in which agreement cannot be reached by direct negotiations, which has resulted in arbitral proceedings in a limited number of cases. See Bekker, supra note 9, at 196–198.

29 See Mazilu Opinion, supra note 9, at 195 para. 51.

30 In his written statement submitted in the Mazilu Case, the Secretary-General explained that the wording of ECOSOC’s request meant that the Court was not asked about the consequences of the applicability of Section 22 to Mr. Mazilu, i.e., what immunity Mr. Mazilu might enjoy as a result of his status and whether or not such immunity had been violated by Romania. During the oral proceedings, the Legal Counsel of the United Nations observed that ECOSOC had merely addressed a preliminary legal question to die Court that was not designed to resolve the entire issue that separated the United Nations and the Government of Romania. See id. at 187, para. 27.

31 Although the Court held that Cumaraswamy should be held harmless for any costs imposed upon him by the Malaysian courts, it did not indicate whether this obligation fell upon the Government of Malaysia or the United Nations. Furthermore, it seems that he is still responsible for his considerable legal fees and for any collateral damage, such as lost income. As a direct consequence of the law suits, Cumaraswamy felt compelled to resign from Shook Lin & Bok, the Malaysian law firm where he had practiced for thirty years. At the time of his resignation, in January 1998, he was the senior partner and chief executive of that firm.

32 It is also not clear from the opinion whether the Secretary-General must explicitly request the local authorities concerned to bring his finding to the knowledge of the local courts or whether such authorities must do so on their own motion when faced with a positive immunity finding by the Secretary-General. Compare paragraph 60 of the opinion, referring to an explicit request from the Secretary-General, with paragraph 61, which appears to require the local authorities to act on their own motion. The separate opinion of the senior judge also seems to advocate the latter position. See Separate Opinion of Judge Oda, Advisory Opinion, supra note 8, at para. 21.

33 The logical consequence of the fundamental principle that a waiver of immunity must always be express and in a particular case is that the Secretary-General has the power and discretion not to waive, or to assert, immunity. What is there to waive for the Secretary-General if he cannot assert immunity?

34 See Advisory Opinion, supra note 8, at para. 50 (citing Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. Rep. 174, 184 (Apr. 11)). However, the 1949 opinion did not concern the authority of the Secretary-General, but whether the United Nations, as an organization, had the capacity to espouse an international claim, by way of functional protection on behalf of an official, against the responsible government for damage caused to the organization and to the official. See id. at 175; see also Bekker, supra note 9, at 58 et seq. According to the first sentence, “[p]rivileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves.” If there was a role for the implied powers doctrine to be played in this case, it would be through the second sentence of Section 23.

35 Employing the principle of effet utile, which dictates that a treaty instrument be interpreted in the manner which is most favorable to the fulfillment of the purposes of the organization concerned, the General Convention could be said to include the exclusive authority of the Secretary-General to determine immunity matters concerning experts on mission with a view to ensuring equality of treatment of experts on mission generally and uniformity in applying the standard of the Convention in individual cases.

36 Cf. the Court’s statement in Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. Rep. 174, 180 (Apr. 11). Cumaraswamy was faced with four civil lawsuits in Malaysia. By the same token, if the decisions of the Malaysian courts were allowed to stand, a dangerous precedent would be created: a special rapporteur might face criminal prosecution in national courts for the words spoken by him or her in his or her official capacity if national courts were to dispute the Secretary-General’s determination under Section 23 of the General Convention that he acted within his mandate. This could open the floodgates for civil and criminal lawsuits against special rapporteurs all over the world, seriously compromising the human rights mechanism of the United Nations. The determination of immunity by the Secretary-General alone is the only guarantee that such matters are resolved with the requisite speed and uniformity. See also Dissenting opinion of Vice President Weeramantry, Advisory Opinion, supra note 8, at paras. 2–3 of first chapter.

37 For recognition of the Secretary-General’s prerogative in similar areas, see, e.g., Note Verbale by the Secretary-General to the Permanent Representative of the United States, Sept. 9, 1985, reprinted in 80 AJIL 440–41 (1986) (prerogative of Secretary-General to determine scope of official travel); Personnel Questions: Respect for the Privileges and Immunities of Officials of the United Nations and the Specialized Agencies and Related Organizations, Report of the Secretary-General, UN Doc. A/C.5/44/11 at 6, para. 19 (1989) (freedom to determine categories of personnel); Report by the Secretary-General on Detention of Staff Members, UN Doc. E/CN.4/Sub.2/1988/17 (prerogative of Secretary-General to determine whether act by staff member was performed in official capacity).

38 See Bekker, supra note 9, at 173–174 & nn.767–770. Only Judge Rezek made reference to the fact of membership, requiring that every State, in its relations with the Organization and its agents, display an attitude at least as constructive as that which characterizes diplomatic relations between States. Separate Opinion of Judge Rezek, Advisory Opinion, supra note 8.

39 These judges were obvious candidates given their former expertise on the issue of immunity and the authority of the Secretary-General. President Schwebel served as research and drafting assistant to Secretary-General Trygve Lie and is the author of a book on the powers of the Secretary-General. See Stephen M. Schwebel, The Secretary-General of the United Nations: His Political Powers and Practice (1952). Judge Higgins acted as counsel for the International Tin Council in a series of landmark cases in the United Kingdom revolving around the issue of the immunities of an intergovernmental organization and persons connected with it. She is the author of a treatise that also deals with the immunity of intergovernmental organizations. See Rosalynhlggins, Problems and Process: International Law and How We Use It (1994) Judge Fleischhauer was Under-Secretary-General for Legal Affairs of the United Nations between 1983 and 1994, in which capacity he argued the somewhat analogous Mazilu Opinion, supra note 9, in 1989. Finally, Judge Kooijmans was himself a Special Rapporteur of the UN Commission on Human Rights, namely on questions relevant to torture, between 1985 and 1992 and he chaired the Commission during 1984–85. Given the specific background of the above judges, one would have expected at least some of them to shed their authoritative light on the important issues raised in this case affecting the United Nations.

40 One of the key differences between sovereign and diplomatic immunity, on the one hand, and international organization immunity, on the other hand, is that international organizations, unlike states, do not have sovereignty. International organizations do not have their own territory but function within the territory of states. International organizations do not stand on a parity with states, and, consequently, cannot depend on reciprocity the way states can, nor are they in a position to retaliate against any violation of their integrity. Unlike states, international organizations are not in a position to grant to or withhold immunity from states. The immunities of international organizations are functional and reflect their needs requiring complete protection from national jurisdiction. See Brief submitted by the United Nations as amicus curiaein Broadbent v. Organization of American States, 628 F.2d 27 (D.C. Cir. 1980), reprinted in [1980] UN Jurid. Y.B. 224, 229–30, UN Doc. ST/LEG/SER.C/18 (1983). As was noted in the preparatory documents of the United Nations in 1945: “In order to determine the nature of the privileges and immunities, the [drafting] Committee has seen fit to avoid the term diplomatic and has preferred to substitute a more appropriate standard, based, for the purposes of the Organization, on the necessity of realizing its purposes ….” 13 United Nations Conference on International Organization, Doc. 933, IV/2/42(2) 704 (1945).

41 See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. Rep. 174, 180 (Apr. 11).

42 In Restatement (Third) of the Foreign Relations Law of the United States, para. 467, under Comment (d), at 495, it was pointed out that it “appears that the restrictive theory that limits the immunity of a state from legal process … does not apply to the United Nations.” See also id. Reporters’ Note 4, at 499–500. Judge Higgins has pointed out that “in reality there is no suggestion that – any international organization is entitled to sovereign or diplomatic immunity. The issue is really quite different: it is whether international law requires that a different type of international person, an international organization, be accorded functional immunities.” See Higgins, supra note 39, at 91. The Malaysian High Court erred in relying on the Court’s observations in the Mazilu Opinion for its conclusion that contemporary thinking dictates that the doctrine of absolute immunity is passe and that the restrictive theory currently holds the field in matters of international organization immunity. See H.C. slip op., supra note 5, at 18.

43 Section 30 of the General Convention grants the Court exclusive authority over the setdement of any difference between the United Nations, on the one hand, and a member state, on the other hand, arising out of the interpretation or application of the Convention (i.e., Sections 22–23, in the case of a difference with respect to the Secretary-General’s determination of an expert’s immunity). Thus, it is for the International Court of Justice, and not the Malaysian courts, to resolve the Special Rapporteur’s case with binding effect for the United Nations and Malaysia. When the Malaysian Court of Appeal stated that “[i]t appears that the Secretary General has asserted the [Special Rapporteur]’s immunity in terms that clearly fall outside the scope of the General Convention,” (C.A. slip op. supra note 5, at 34) it entered the forbidden field of interpretation of the Convention. The Malaysian High Court obviously misunderstood the mechanism of the General Convention, when it stated that “[i]t would indeed be a naive supposition if [the Secretary-General’s certificate] is to be construed as being conclusive, since can one be heard to say C’est fait and therefore, that is the end of the matter? Surely not.” H.C. slip op., supra note 5, at 25. Apparently, what the court meant to say is that it would be arbitrary for the Secretary-General to end the matter through his certificate asserting immunity. But this statement neglects the dispute setdement mechanism of Section 30 of the General Convention, through which a difference between a member state and the United Nations arising from the application or interpretation of the Convention is to be submitted to the Court for a final determination. The Secretary-General’s assertion does not necessarily end the matter, given that it is subject to the mechanism laid down in Section 30, as he acknowledged himself in paragraph 17 of his Note of July 28, 1998.