1. Section 30: “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 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.” Sec R. Ago “‘Binding’ Advisory Opinion of the International Court of Justice” (1991) 85 A.J.I.L 439.

2. In the contexts of international organisations sec the ECHR cases Beer and Regan v. Germany, Waite and Kennedy v. Germany (both of 18 February 1999). National Courts have also become increasingly willing to limit the scope of State immunity, head of State and ex-head of State immunity. In relation to other forms of immunity, see the ECHR case Osman v. UK (28.10.98).

3. His mandate included, inter alia: “(a) to inquire into substantial allegations transmitted to him … (b) to identify and record…attacks on the independence of the judiciary, lawyers and court officials …”

4. “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 any 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.”

5. MBf Capital Bhd & Anor v. Dato' Param Cumaraswamy, High Court (Kuala Lumpur), 28.6.97, [1997] 3 M.L.J. 300; Court of Appeal, 20.10.97, [1997] 3 M.L.J. 824.

6. The matter was submitted to ECOSOC as the parent organ of the Commission on Human Rights, which, unlike the Secretary-General, is authorised to request advisory opinions within the scope of its activities (see UNGA Res. 89(1) of 11 December 1946).

7. The Secretary-General had proposed the following questions. “1. Subject only to section 30 of the Convention on the Privileges and Immunities of the United Nations does the Secretary-General of the United Nations have the exclusive authority to determine whether words are 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?”

8. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Rep. 1989, 177, which established that a Special Rapporteur of the Sub-Commission was an “expert” for the purposes of section 22 even when carrying out his functions between sessions of the Sub-Commission in his State of nationality or residence.

9. Section 23 of the General Convention states: ‘Privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations.” However the difficulty with the argument put forward by the Secretary-General based on this section is that the question of whether or not waiver is appropriate in a particular case only arises once the scope of immunity has been determined, whereas the text is silent on this anterior question.

10. Written Statement of Malaysia at §7.12.

11. It pointed to other regimes of immunity in international law in which limitations on the scope of immunity are, as a rule, subject to judicial determination. See Oral Pleadings, 8.12.98, at paras.33–59 (Sir Elihu Lauterpacht).

12. Ibid, paras60–114.

13. See written statements of Costa Rica, Germany and Sweden.

14. Malaysia, seeking to rely on a distinction which the Court itself had made in Mazilu, had suggested that applicability raised the question of whether the provision is applicable, rather how it is to be applied. This was rejected, the Court finding that it was required to give its opinion on the applicability of the provision in the factual circumstances of this particular case.

15. Advisory Opinion, para.61.

16. The costs of his failed strike out application had already been taxed against him by the Malaysian courts.

17. See Mazilu (op cit n.6) and the Court's response to the WHO Request for an advisory opinion in the Legality of the Use by a Stale of Nuclear Weapons in Armed Conflict, I.C.J. Rep. 1996, 66.

18. See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Rep. 1950. 65 at p.71.

19. Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J. Ser.B. No.5

20. Unless the State in question has made a reservation to Section 30 (sec Mazilu, op. cit. n.6). Rosenne suggests that the Eastern Carelia principle is not applicable to disputes between a State and an international organisation (see The Law and Practice of the International Court 1920–1996 (Kluwer, The Hague, 1997) at pp.10191020).Google Scholar

21. In the Cumaraswamy case all States Parties to the General Convention (over 130 States) were invited to furnish information.

22. Dissenting Opinion of Judge Koroma at §14.

23. Statement of the Malaysian Solicitor General, Oral Pleadings, 10.12.98.

24. See UN Human Rights Centre press release of 19.10.99.