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Français

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights

Overview of the case

By a letter dated 7 August 1998, the Secretary-General of the United Nations officially communicated to the Registry Decision 1998/297 of 5 August 1998, by which the Economic and Social Council requested the Court for an advisory opinion on the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations to a Special Rapporteur of the Commission on Human Rights, and on the legal obligations of Malaysia in that case. The Special Rapporteur, Mr. Cumaraswamy, was facing several lawsuits filed in Malaysian courts by plaintiffs who asserted that he had used defamatory language in an interview published in a specialist journal and who were seeking damages for a total amount of US$112 million. However, according to the United Nations Secretary-General, Mr. Cumaraswamy had been speaking in his official capacity as Special Rapporteur and was thus immune from legal process by virtue of the above-mentioned Convention.

Written statements having been filed by the Secretary-General and by various States, public sittings were held on 7, 8 and 10 December 1998, during which the Court heard oral statements by the representative of the United Nations and three States, including Malaysia. In its Advisory Opinion of 29 April 1999, having concluded that it had jurisdiction to render such an opinion, the Court noted that a Special Rapporteur entrusted with a mission for the United Nations must be regarded as an expert on mission within the meaning of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations. It observed that Malaysia had acknowledged that Mr. Cumaraswamy was an expert on mission and that such experts enjoyed the privileges and immunities provided for under the Convention in their relations with States parties, including those of which they were nationals. The Court then considered whether the immunity applied to Mr. Cumaraswamy in the specific circumstances of the case. It emphasized that it was the Secretary-General, as the chief administrative officer of the Organization, who had the primary responsibility and authority to assess whether its agents had acted within the scope of their functions and, where he so concluded, to protect those agents by asserting their immunity. The Court observed that, in the case concerned, the Secretary-General had been reinforced in his view that Mr. Cumaraswamy had spoken in his official capacity by the fact that the contentious Article several times explicitly referred to his capacity as Special Rapporteur, and that in 1997 the Commission on Human Rights had extended his mandate, thereby acknowledging that he had not acted outside his functions by giving the interview. Considering the legal obligations of Malaysia, the Court indicated that, when national courts are seised of a case in which the immunity of a United Nations agent is in issue, they must immediately be notified of any finding by the Secretary-General concerning that immunity and that they must give it the greatest weight. Questions of immunity are preliminary issues which must be expeditiously decided by national courts in limine litis. As the conduct of an organ of a State, including its courts, must be regarded as an act of that State, the Court concluded that the Government of Malaysia had not acted in accordance with its obligations under international law in the case concerned.


This overview is provided for information only and in no way involves the responsibility of the Court.

Request for Advisory Opinion

Request for Advisory Opinion (including the dossier of documents transmitted to the Court pursuant to article 65, paragraph 2 of the Statute)

10 August 1998
Request for Advisory Opinion (including the dossier of documents transmitted to the Court pursuant to article 65, paragraph 2 of the Statute)
Available in:
English French

Written proceedings

Written Statement of the Government of Italy
(French version only)

6 October 1998
Available in:
French

Written Statement of the Government of Luxembourg
(French version only)

29 October 1998
Available in:
French

Oral proceedings

Verbatim record 1998/15

Public sitting held on Monday 7 December 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1998/16

Public sitting held on Tuesday 8 December 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1998/17

Public sitting held on Thursday 10 December 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Other documents

Orders

Order of 10 August 1998

Decision on furnishing of information; fixing of time-limits : Written Statements and Written Comments on Written Statements
Available in:
English French Bilingual

Advisory opinions

Summaries of Advisory Opinions and Orders

Summary 1999/3

Summary of the Advisory Opinion of 29 April 1999
Available in:
English French

Press releases

Press release 1998/26

10 August 1998
Lawsuits filed in Malaysian courts against the Special Rapporteur of the UN Commission on Human Rights on the independence of judges and lawyers - The UN Economic and Social Council requests the Court to give an advisory opinion
Available in:
English French

Press release 1998/27

12 August 1998
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion - Order organizing the proceedings
Available in:
English French

Press release 1998/32

9 October 1998
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion by ECOSOC - The Secretary-General of the United Nations and seven States have submitted written statements
Available in:
English French

Press release 1998/38

13 November 1998
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion by ECOSOC - Public sittings to be held on 7 and 8 December 1998
Available in:
English French

Press release 1998/43

10 December 1998
Difference relating to immunity from legal process of a Special Rapporteur - Request for an advisory opinion by ECOSOC - Conclusion of the hearings
Available in:
English French

Press release 1999/15

22 April 1999
Difference relating to immunity from legal process of a Special Rapporteur - Court to give its Advisory Opinion on Thursday 29 April 1999
Available in:
English French

Press release 1999/16

29 April 1999
Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights - Court says that Mr. Cumaraswamy is entitled to immunity from legal process for the words spoken by him during an interview
Available in:
English French