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

The Economic and Social Council requested the International Court of Justice (ICJ) 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 the Special Rapporteur of the Commission on Human Rights, Mr Cumaraswamy. The Special Rapporteur was sued before Malaysian court by different plaintiff, seeking compensation of the damages for alleged defamatory declarations made by the Special Rapporteur during an interview.

Firstly, the ICJ assessed whether the jurisdictional immunity, conferred on experts on mission under Article VI, Section 22, applied to Mr Cumaraswamy. Recalling its precedent Advisory Opinion on Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, the ICJ reminded that the The purpose of Section 22 is to enable the United Nations to entrust missions to persons who do not have the status of an official and to guarantee the independent exercise of their functions. In other terms, the qualification of experts on mission depends on the nature of their functions.

The ICJ found that the immunity under Section 22 applied to Mr Cumaraswamy in the specific circumstances of the case, since the declarations at stake were made by the Special Rapporteur in the course of the performance of his mission. In this regard, the Court stressed that the Secretary-General had informed the Malaysian Government of his findings that Mr Cumaraswamy released the interview in his official capacity. Indeed, the content of the his declarations related to his mandate.

Secondly, the ICJ evaluated the legal obligations of Malaysia in relation to the immunity of Mr Cumaraswamy.

As highlighted by the Court, any State party to the Convention has under the obligation to convey the information received by the Secretary General to national courts in order to ensure the proper application of the Convention. In particular, “a 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”.

The ICJ also underlined that questions of immunity are preliminary issues which must be decided in limine litis. As noted by the ICJ, Malaysian court did not address the issue of the Special Rapporteur’s immunity at the preliminary stage of the proceeding, “thereby nullifying the essence of the immunity rule contained in Section 22″.