Chapter VII. Decisions and Advisory Opinions of International Tribunals

International Court of Justice

APPLICABILITY OF ARTICLE VI, SECTION 22, OF THE CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE

UNITED NATIONS1 (REQUEST FOR ADVISORY OPINION)

Request for an advisory opinion by the Economic and Social Council of the United Nations — Competence of I.C.J. in case — Propriety of I.C.J. to give an advisory opinion in case — “Experts on mission” — Question of members and special rapporteurs of the Subcommission being regarded as experts on mission

— Question of whether health problems changed status of individual appointed special rapporteur

On 24 May 1989 the Economic and Social Council of the United Nations adopted resolution 1989/75, whereby it requested the Court to give, on a priority basis, 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 Nations2 in the case of Mr. Dumitru Mazilu as Special Rapporteur of the Subcommission”

on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights.

The letter from the Secretary-General, transmitting to the Court the request for advisory opinion and certified copies of the English and French texts of the resolution, was received in the Registry on 13 June 1989.

In an Order of 14 June 1989 (I.C.J. Reports 1989, p. 9), the President of the Court decided that the United Nations and the States parties to the Convention on the Privileges and Immunities of the United Nations were considered likely to be able to furnish information on the question and, bearing in mind that the request was expressed to be made “on a priority basis”, fixed 31 July 1989 as the time limit for the submission of written statements and 31 August 1989 for the submission of subsequent written comments on those statements.

Pursuant to the Statute, the Secretary-General of the United Nations transmitted to the Court a dossier of documents likely to throw light upon the question.

Written statements were filed, within the time limit fixed, by the United Nations and by Canada, the Federal Republic of Germany, Romania and the United States of America.

At public sittings held on 4 and 5 October 1989, oral statements were made before the Court by Mr. Carl-August Fleischhauer, the United Nations Legal Counsel, on behalf of the Secretary-General, and by Mr. Abraham Sofaer, Legal

Adviser, Department of State, on behalf of the United States of America. Questions were put by Members of the Court to the representative of the Secretary-General, and answered before the close of the oral proceedings.

At a public sitting held on 15 December 1989, the Court delivered its Advisory Opinion (I.C.J. Reports 1989, p. 177), of which a summary outline and the complete text of the operative paragraph are given below.

1. Review of the proceedings and summary of facts (paras. 1-26)

   The Court outlined the successive stages of the proceedings before it (paras. 1-8) and then summarized the facts of the case (paras. 9-26).

   On 13 March 1984 the Commission on Human Rights — a subsidiary organ of the Economic and Social Council (hereinafter called “the Council”), created by it in 1946 in accordance with Articles 55 (c) and 68 of the Charter of the United Nations — elected Mr. Dumitru Mazilu, a Romanian national nominated by Romania, to serve as a member of the Subcommission on Prevention of Discrimination and Protection of Minorities — a subsidiary organ set up in 1947 by the Commission on Human Rights (hereinafter called “the Commission”) — for a three-year term due to expire on 31 December 1986. As the Commission had called upon the Subcommission on Prevention of Discrimination and Protection of Minorities (hereinafter called “the Subcommission”) to pay due attention to the role of youth in the field of human rights, the Subcom-mission at its thirty-eighth session adopted on 29 August 1985 resolution 1985/ 12 whereby it requested Mr. Mazilu to:

   “prepare a report on human rights and youth analysing the efforts and measures for securing the implementation and enjoyment by youth of human rights, particularly, the right to life, education and work”

   and requested the Secretary-General to provide him with all necessary assistance for the completion of the task.

   The thirty-ninth session of the Subcommission, at which Mr. Mazilu’s report was to be presented, was not convened in 1986 as originally scheduled but was postponed until 1987. The three-year mandate of its members — originally due to expire on 31 December 1986 — was extended by Council decision 1987/ 102 for an additional year. When the thirty-ninth session of the Subcommission opened in Geneva on 10 August 1987 no report had been received from Mr. Mazilu, nor was he present. By a letter received by the United Nations Office at Geneva on 12 August 1987, the Permanent Mission of Romania to that Office informed it that Mr. Mazilu had suffered a heart-attack and was still in hospital. According to the written statement of the Secretary-General, a telegram signed “D. Mazilu” was received in Geneva on 18 August 1987 and informed the Sub-commission of his inability, owing to heart illness, to attend the current session. In these circumstances, the Subcommission adopted decision 1987/112 on 4 September 1987, whereby it deferred consideration of item 14 of its agenda — under which the report on human rights and youth was to have been discussed — until its fortieth session rescheduled for 1988. Notwithstanding the scheduled expiration on 31 December 1987 of Mr. Mazilu’s term as a member of the Subcommission, the latter included reference to a report to be submitted by him, identified by name, under the agenda item “Prevention of discrimination

   and protection of children”, and entered the report, under the title “Human rights and youth” in the “List of studies and reports under preparation by members of the Subcommission in accordance with the existing legislative authority”.

   After the thirty-ninth session of the Subcommission, the Centre for Human Rights of the United Nations Secretariat in Geneva made various attempts to contact Mr. Mazilu to provide him with assistance in the preparation of his report, including arranging a visit to Geneva. In December 1987, Mr. Mazilu informed the Under-Secretary-General for Human Rights that he had not received the previous communications of the Centre. In January 1988, Mr. Mazilu informed him that he had been twice in hospital in 1987, and that he had been forced to retire, as of 1 December 1987, from his various governmental posts. He also stated that he was willing to travel to Geneva for consultations, but that the Romania authorities were refusing him a travel permit. In April and May 1988, Mr. Mazilu, in a series of letters, further described his personal situation; in particular, he alleged that he had refused to comply with the request addressed to him on 22 February 1988 by a special commission from the Romanian Ministry of Foreign Affairs voluntarily to decline to submit his report to the Sub-commission and, moreover, consistently complained that strong pressure had been exerted on him and on his family.

   On 31 December 1987, the terms of all members of the Subcommission, including Mr. Mazilu, expired as has already been indicated. On 29 February 1988 the Commission, upon nomination by their respective Governments, elected new members of the Subcommission among whom was Mr. Ion Diaconu, a Romanian national.

   All the rapporteurs and special rapporteurs of the Subcommission were invited to attend its...