Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J.

“even if rapporteurs are given some of the status of experts,… they can enjoy only functional immunities and privileges, that is, privi­leges connected with their activities for the United Nations, during the period of their mission, and then only in the countries in which they perform the mission and in countries of transit”.

For Romania, it was obvious that

“an expert does not enjoy privileges and immunities in the country in which he has his permanent residence but only in the country in which he is on mission and during the period of his mission. Likewise, the privileges and immunities provided by the Conven­tion begin to apply only at the moment when the expert leaves on a journey connected with the performance of his mission.”

Moreover,

“in the country of which he is a national and in countries other than the country to which he is sent on mission, an expert enjoys privileges and immunities only in respect of actual activities spoken or written which he performs in connection with his mission”.

Romania stated expressly that it was opposed to a request for advisory opinion from the Court of any kind in this case. Similar contentions were also put forward in the written statement presented by Romania to the Court in the present proceedings.

1. At the forty-fifth session of the Commission in 1989, the Secretary- General presented a Note “pursuant to paragraph 2 of resolution 1988/37 of the Sub-Commission” (see paragraph 21 above), to which was attached his Note Verbale to the Romanian Government of 26 October 1988, and the Romanian Aide-Memoire of 6 January 1989. The Commission adopted on 6 March 1989, by 26 votes to 5, with 12 abstentions, its resolu­tion 1989/37 recommending that the Council request an advisory opinion from the Court. The Council on 24 May 1989 adopted by 24 votes to 8, with 19 abstentions, its resolution 1989/75 requesting an advisory opinion of the Court, as recommended in Commission resolution 1989/37, on the legal question of the applicability of Article VI, Section 22, of the General Convention in the case of Mr. Mazilu as Special Rapporteur of the Sub- Commission.
2. The Court has also been informed by the Secretary-General of the following events which have occurred since the request for advisory opin­ion was made. A report on human rights and youth prepared by Mr. Maz­ilu was circulated as a document of the Sub-Commission bearing the date 10 July 1989; the text of this report had been transmitted by Mr. Mazilu to the Centre for Human Rights in several instalments through various chan­nels. At a meeting held on 8 August 1989, the Sub-Commission decided, in accordance with its practice, to invite Mr. Mazilu to participate in the meetings at which his report was to be considered: no reply was received to the invitation extended. By a Note Verbale dated 15 August 1989 from the Permanent Mission of Romania to the United Nations Office at Geneva addressed to that Office, the Permanent Mission referred to “the so-called report” by Mr. Mazilu, expressed surprise “that the medical opinions made available to the Centre for Human Rights … have been ignored”, and continued:

“The fact that the Centre’s administration has agreed, in these cir­cumstances, to sponsor the publication of some of Mr. Mazilu’s ideas and judgements under the auspices of the United Nations can only harm the standing and credibility of the Organization.”

In the view of Romania,

“Obviously since becoming ill in 1987, Mr. Dumitru Mazilu does not possess the intellectual capacity necessary for making an objective, responsible and unbiased analysis that could serve as the substance of a report consistent with the requirements of the United Nations.”

At its 40th meeting held on 1 September 1989, the Sub-Commission adopted, by 12 votes to 4 with 2 abstentions, resolution 1989/45 entitled “The report on human rights and youth prepared by Mr. Dumitru Mazilu”. The Sub-Commission noted that Mr. Mazilu’s report had been prepared in difficult circumstances and that the relevant information collected by the Secretary-General appeared not to have been delivered to Mr. Mazilu. The Sub-Commission inter alia requested Mr. Mazilu to update his report and invited him to present it in person to the Sub-Com­mission at its next session; it also requested the Secretary-General to con­tinue to gather and furnish to Mr. Mazilu information relating to his study, and to provide Mr. Mazilu with all the assistance he might need in updating

his report, including consultations with the Centre for Human Rights.

*

1. The question laid before the Court by the Council is, in the terms of the resolution requesting the advisory opinion (resolution 1989/75, entitled “Status of Special Rapporteurs”),

“the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations

in the case of Mr. Dumitru Mazilu as Special Rapporteur of the Sub- Commission [on the Prevention of Discrimination and the Protection of Minorities] ‘.

According to the written statement submitted to the Court by the Secretary-General,

“It should… be noted that while the Court has been asked about the applicability of Section 22 of the Convention in the case of Mr. Mazilu, it has not been asked about the consequences of that applicability, that is about what privileges and immunities Mr. Mazilu might enjoy as a result of his status and whether or not these had been violated.”

During the oral proceedings, the representative of the Secretary-General, when replying to a question put by a Member of the Court, observed that:

“it is suggestive of the Council’s intention in adopting the resolution to note that, having referred to a ‘difference’, it then did not attempt to have that difference as a whole resolved by the question it addressed to the Court. Rather … the Council merely addressed a preliminary legal question to the Court, which appears designed to clarify at most the general status of Mr. Mazilu in respect of the Con­vention, without resolving the entire issue that evidently separates the United Nations and the Government.”

* *

28. The present request for advisory opinion is the first request made by the Council, pursuant to paragraph 2 of Article 96 of the Charter. That para­graph provides that organs of the United Nations, other than the General Assembly and the Security Council,

“which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities”.

Such authorization in respect of the Council was given by General Assembly resolution 89 (I) of 11 December 1946. The question which is the subject of the request, involving as it does the interpretation of an international convention in order to determine its applicability, is a legal question. Furthermore it is one arising within the scope of the activities of the Council. As indicated in paragraph 10 above, Mr. Mazilu’s assignment was pertinent to a function and programme of the Council. The Commission is a subsidiary organ of the Council, and the Sub- Commission, of which he was appointed special rapporteur, is in turn a subsidiary organ of the Commission. Accordingly, the request before the Court fulfils the conditions of Article 96, paragraph 2, of the Charter of the United Nations.

1. The Court has next to consider the contention of Romania, on the basis of the reservation made by it to Section 30 of the General Conven­tion, that the Court “cannot find that it has jurisdiction to give an advisory opinion” in the present case. Section 30 of the General Convention provides:

“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.”

Romania acceded to the General Convention, and its instrument of acces­sion was deposited with the Secretary-General on 5 July 1956. The instru­ment of accession contained the following reservation:

“The Romanian People’s Republic does not consider itself bound by the terms of section 30 of the Convention which provide for the compulsory jurisdiction of the International Court in differences arising out of the interpretation or application of the Convention; with respect to the competence of the International Court in such differences, the Romanian People’s Republic takes the view that, for the purpose of the submission of any dispute whatsoever to the Court for a ruling, the consent of all the parties to the dispute is required in every individual case. This reservation is equally applicable to the provisions contained in the said section which stipulate that the advi­sory opinion of the International Court is to be accepted as decisive.”

1. It is claimed by Romania that, because of the reservation made by it to Section 30, the United Nations cannot, without Romania’s consent, submit a request for advisory opinion in respect of its difference with Romania. The reservation, it is said, subordinates the competence of the Court to “deal with any dispute that may have arisen between the United Nations and Romania, including a dispute within the frame­work of the advisory procedure,” to the consent of the parties to the dis­pute. Romania points out that it did not agree that an opinion should be requested of the Court in the present case and concludes that the Court is without jurisdiction.
2. The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them. As the Court observed in 1950,

“The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the Organization, and, in principle, should not be refused.” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71.)

This reasoning is equally valid where it is suggested that a legal question is pending, not between two States, but between the United Nations and a member State.

1. Romania however relies on its reservation to Section 30 of the General Convention; but that Section operates on a different plane and in a different context from that of Article 96 of the Charter. When the provi­sions of the Section are read in their totality, it is clear that their object is to provide a dispute settlement mechanism. The first sentence of the Section provides for the case where a difference arises out of the interpretation or application of the General Convention between States parties to it, and contains two elements. The first is the treaty obligation to refer the differ­ence to the Court, unless another mode of settlement is decided upon by the parties; the second is the object of the reference to the Court, namely to settle the difference.
2. The United Nations is itself intimately, and for the most part directly, concerned with the operation of the General Convention. Section 30 was therefore so framed as to take in also the settlement of differences between the United Nations and a State party to the General Convention. If such a difference arises,

“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.”

This provision pursues the same intent as expressed in the first sentence of Section 30; the particular nature of the proceeding contemplated is attri­butable to the status as an international organization of one of the parties to the difference.

1. In case of a request for an advisory opinion made under Section 30, the Court would of course have to consider any reservation which a party to the dispute had made to that Section. In the particular case of Romania, the Court would have to consider whether the effect of its reservation could be to act as a bar to the operation of the procedure of request for advisory opinion, or merely to deprive any opinion given of the decisive effect attributed to such opinions by Section 30. But in the present case, the resolution requesting the advisory opinion made no reference to Section 30, and it is evident from the dossier that, in view of the existence of the Romanian reservation, it was not the intention of the Council to invoke Section 30. The request is not made under that Section, and the Court does not therefore need to determine the effect of the Romanian reservation to that provision.
2. Romania however contends that although the Council resolution 1989/75 dated 24 May 1989 does not allude to Section 30 of the General Convention as the basis of its request for advisory opinion, the question which it raises nevertheless relates to the applicability of a substantive provision of the General Convention “to a concrete case considered to be a dispute between a State party to the Convention and the United Nations”. It argues that

“If it were accepted that a State party to the Convention, or the United Nations, might ask for disputes concerning the application or interpretation of the Convention to be brought before the Court on a basis other than the provisions of Section 30 of the Convention, that would disrupt the unity of the Convention, by separating the substan­tive provisions from those relating to dispute settlement, which would be tantamount to a modification of the content and extent of the obligations entered into by States when they consented to be bound by the Convention.”

However, the nature and purpose of the present proceedings are, as explained above, that of a request for advice on the applicability of a part of the General Convention, and not the bringing of a dispute before the Court for determination. Furthermore, the “content and extent of the obligations entered into by States” — and, in particular, by Romania — “when they consented to be bound by the Convention” are not modified by the request and by the present advisory opinion.

1. The Court thus finds that the reservation made by Romania to Sec­tion 30 of the General Convention does not affect the Court’s jurisdiction to entertain the present request.

*

1. While, however, the absence of the consent of Romania to the present proceedings can have no effect on the jurisdiction of the Court, it is a matter to be considered when examining the propriety of the Court giving an opinion. It is well settled in the Court’s jurisprudence that when a request is made under Article 96 of the Charter by an organ of the United Nations or a specialized agency for an advisory opinion by way of guidance or enlightenment on a question of law, the Court should entertain the request and give its opinion unless there are “compelling reasons” to the contrary. In the Western Sahara case the Court adverted to a possible situation in which such a “compelling reason” might be present. In that case, commenting on its observations in the Interpre­tation of Peace Treaties case, to the effect that its competence to give an opinion does not depend on the consent of the interested States, the Court observed:

“the Court recognized that lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion.

33. In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory opinion incom­patible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, paras. 32-33.)

1. In view of the emphasis placed by Romania on its reservation to Article 30 of the General Convention and the absence of its consent to the present request for advisory opinion, the Court must consider whether in this case “to give a reply would have the effect of circumventing the prin­ciple that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”. The Court considers that in the present case to give a reply would have no such effect. Certainly the Council, in its resolution requesting the opinion, did conclude that a difference had arisen between the United Nations and the Government of Romania as to the applicability of the Convention to Mr. Dumitru Mazilu. But this difference, and the question put to the Court in the light of it, are not to be confused with the dispute between the United Nations and Romania with respect to the application of the General Convention in the case of Mr. Mazilu.
2. In the present case, the Court thus does not find any compelling reason to refuse an advisory opinion. The Court will therefore proceed now to reply to the legal question on which such an opinion has been requested.

# *

1. In order to determine the applicability of Article VI, Section 22, of the General Convention, to special rapporteurs of the Sub-Commission, and its applicability in the case of Mr. Dumitru Mazilu, the Court must first ascertain the meaning of that text.
2. According to Article 105, paragraph 1, of the Charter of the United Nations

“The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.”

Furthermore, according to Article 105, paragraph 2,

“Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.”

Lastly, Article 105, paragraph 3, states that the General Assembly “may propose conventions to the Members of the United Nations” with a view to determining the details of the application of paragraphs 1 and 2.

1. Acting in conformity with Article 105 of the Charter, the General Assembly approved the General Convention on 13 February 1946 and proposed it for accession by each Member of the United Nations. One hundred and twenty-four States, including Romania, are parties to the Convention.
2. As contemplated by Article 105 of the Charter, the General Con­vention determines the privileges and immunities enjoyed by the United Nations as such (Arts. II and III), lays down the privileges and immunities of the representatives of Members of the United Nations (Art. IV), and defines those of the officials of the Organization (Art. V). It contains in addition an Article VI entitled “Experts on Missions for the United Nations”, divided into two Sections. Section 22 provides 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 their functions during the period of their missions, includ­ing the time spent on journeys in connection with their missions. In particular they shall be accorded:

(a) immunity from personal arrest or detention and from seizure of their personal baggage;

(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 every 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;

(c)  inviolability for all papers and documents;

(d)  for the purpose of their communications with the United Nations, the right to use codes and to receive papers or corre­spondence by courier or in sealed bags;

(e)  the same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;

(f)  the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys.”

Section 23 adds:

“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.”

Finally, Article VII, Section 26, of the General Convention grants certain facilities to experts when travelling on the business of the Organization.

1. The Court will examine the applicability of Section 22 rationeper- sonae, ratione temporis and ratione loci, that is to say it will consider first what is meant by “experts on missions” for the purposes of Section 22, and then the meaning to be attached to the expression “period of [the] missions”, before considering the position of experts in their relations with the States of which they are nationals or on the territory of which they reside.
2. The General Convention gives no definition of “experts on missions”. All it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organiza­tion, even if chosen in consideration of their technical expertise in a parti­cular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, how­ever, furnish any indication of the nature, duration or place of these missions.
3. Nor is there really any guidance in this respect to be found in the travaux preparatoires of the General Convention. The Convention was in­itially drafted and submitted to the General Assembly by the Preparatory

Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary offi­cial records do not make it possible to ascertain the reasons for the addi­tion.

1. The purpose of Section 22 is nevertheless evident, namely, to en­able the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them “such privileges and immunities as are necessary for the independent exercise of their functions”. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requir­ing work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.
2. In practice, according to the information supplied by the Secretary- General, the United Nations has had occasion to entrust missions — increasingly varied in nature — to persons not having the status of United Nations officials. Such persons have been entrusted with media­tion, with preparing reports, preparing studies, conducting investigations or finding and establishing facts. They have participated in certain peace­keeping forces, technical assistance work, and a multitude of other activi­ties. In addition, many committees, commissions or similar bodies whose members serve, not as representatives of States, but in a personal capacity, have been set up within the Organization; for example the International Law Commission, the Advisory Committee on Administrative and Budgetary Questions, the International Civil Service Commission, the Human Rights Committee established for the implementation of the International Covenant on Civil and Political Rights, and various other committees of the same nature, such as the Committee on the Elimination of Racial Discrimination or the Committee on the Elimination of All Forms of Discrimination Against Women. In all these cases, the practice of the United Nations shows that the persons so appointed, and in par­ticular the members of these committees and commissions, have been regarded as experts on missions within the meaning of Section 22.
3. According to that Section, experts enjoy the privileges and immuni­ties therein provided for “during the period of their missions, including the time spent on journeys”. The question thus arises whether experts are covered by Section 22 only during missions requiring travel or whether they are also covered when there is no such travel or apart from such tra­vel. To answer this question, it is necessary to determine the meaning of the word “mission” in French and “mission” in English, the two languages in which the General Convention was adopted. Initially, in keeping with its Latin derivation, the word referred to a task entrusted to a person only if that person was sent somewhere to perform it. It implied a journey. The same connotation is apparent in the words, of the same derivation, “emis­sary”, “missionary” and “missive”. The French word “mission”, and the English word “mission”, have however long since acquired a broader meaning and nowadays embrace in general the tasks entrusted to a per­son, whether or not those tasks involve travel.
4. The Court considers that Section 22, in its reference to experts per­forming missions for the United Nations, uses the word “mission” in a general sense. While some experts have necessarily to travel in order to perform their tasks, others can perform them without having to travel. In either case, the intent of Section 22 is to ensure the independence of such experts in the interests of the Organization by according them the privi­leges and immunities necessary for the purpose. In some cases these privi­leges and immunities are designed to facilitate the travel of experts and their stay abroad, for instance those concerning seizure or searching of personal baggage. In other cases, however, they are of a far more general nature, particularly with respect to communications with the United Nations or the inviolability of papers and documents. Accordingly, Section 22 is applicable to every expert on mission, whether or not he travels.
5. The question whether experts on missions can invoke these privi­leges and immunities against the States of which they are nationals or on the territory of which they reside has also been raised. In this connection, the Court notes that Section 15 of the General Convention provides that the terms of Article IV, Sections 11,12 and 13, relating to the representa­tives of Members “are not applicable as between a representative and the authorities of the State of which he is a national or of which he is or has been the representative”. Article V, concerning officials of the Organi­zation, and Article VI, concerning experts on missions for the United Nations, do not, however, contain any comparable rule. This difference of approach can readily be explained. The privileges and immunities of Articles V and VI are conferred with a view to ensuring the independence of international officials and experts in the interests of the Organization. This independence must be respected by all States including the State of nationality and the State of residence. Some States parties to the General Convention (Canada, the Lao People’s Democratic Republic, Nepal, Thailand, Turkey and the United States of America) have indeed entered reservations to certain provisions of Article V, or of Article VI itself (Mexico and the United States of America), as regards their nationals or persons habitually resident on their territory. The very fact that it was felt necessary to make such reservations confirms the conclusion that, in the absence of such reservations, experts on missions enjoy the privileges and immunities provided for under the Convention in their relations with the States of which they are nationals or on the territory of which they reside.
6. To sum up, the Court takes the view that Section 22 of the General

Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions. During the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel. They may be invoked as against the State of nationality or of residence unless a reserva­tion to Section 22 of the General Convention has been validly made by that State.

* *

1. In the light of the foregoing, the Court will now consider the situa­tion of special rapporteurs of the Sub-Commission. This is a question which touches on the legal position of rapporteurs in general, a category of persons whom the United Nations and the specialized agencies find it necessary to engage for the implementation of increasingly varied func­tions, and is thus one of importance for the whole of the United Nations system.
2. The establishment in 1946 of the Commission, and the establish­ment in 1947 of the Sub-Commission and the definition in 1949 of its mandate, have been described in paragraph 9 above. On 28 March 1947, the Council decided that the Sub-Commission would be composed of 12 eminent persons, designated by name, subject to the consent of their respective national Governments. Subsequently the members of the Sub-Commission, at present 25 in number, were chosen by the Human Rights Commission under similar conditions, and the Council in resolu­tion 1983/32 of 27 May 1983, expressly “recall[ed]… that members of the Sub-Commission are elected by the Commission on Human Rights as experts in their individual capacity”, and concluded that their alternates should therefore be elected and should serve on the same basis. The members of the Sub-Commission, since their status is neither that of a representative of a member State nor that of a United Nations official, and since they perform independently for the United Nations functions contemplated in the remit of the Sub-Commission, must be regarded as experts on missions within the meaning of Section 22.
3. In accordance with the practice followed by many United Nations bodies, the Sub-Commission has from time to time appointed rapporteurs or special rapporteurs with the task of studying specified subjects. These rapporteurs or special rapporteurs are normally selected from among members of the Sub-Commission. However, over the past ten years, special rapporteurs have, on at least three occasions, been appointed from outside the Sub-Commission. Furthermore, in numerous cases, special rapporteurs appointed from among members of the Sub-Commission have completed their reports only after their membership of the Sub- Commission had expired. In any event, rapporteurs or special rappor­teurs are entrusted by the Sub-Commission with a research mission. Their functions are diverse, since they have to compile, analyse and check the existing documentation on the problem to be studied, prepare a report making appropriate recommendations, and present the report to the Sub- Commission. Since their status is neither that of a representative of a member State nor that of a United Nations official, and since they carry out such research independently for the United Nations, they must be regarded as experts on missions within the meaning of Section 22, even in the event that they are not, or are no longer, members of the Sub- Commission. Consequently they enjoy, in accordance with Section 22, the privileges and immunities necessary for the exercise of their func­tions, and in particular for the establishment of any contacts which may be useful for the preparation, the drafting and the presentation of their reports to the Sub-Commission.

* *

1. Having thus pronounced on the applicability of Section 22 to special rapporteurs of the Sub-Commission, the Court must now give its opinion on the question of the applicability of this provision in the case of Mr. Dumitru Mazilu.
2. As has been noted earlier (paragraph 10 above), Mr. Dumitru Maz­ilu was elected a member of the Sub-Commission on 13 March 1984. On 29 August 1985 the Sub-Commission requested him to prepare a report on human rights and youth. The mandate of Mr. Mazilu as a member of the Sub-Commission expired on 31 December 1987. On that date, the report requested on human rights and youth had not been sub­mitted and Mr. Mazilu was retained as special rapporteur by decisions or resolutions of the Sub-Commission adopted on 4 September 1987, 15 August 1988 and 1 September 1988 (paragraphs 12, 18 and 21 above). The Sub-Commission subsequently received a report by Mr. Mazilu, which was published on 10 July 1989; and by its resolution 1989/45 of 1 September 1989 (paragraph 26 above), the Sub-Commission once again retained Mr. Mazilu as special rapporteur, and requested him to update his report in the light of, inter alia, the information collected for him by the Secretary-General. Thus from 13 March 1984 to 29 August 1985 Mr. Mazilu had the status of member of the Sub-Commission. From 29 August 1985 to 31 December 1987, he was both a member and a rappor­teur of the Sub-Commission. Finally, although since the last-mentioned date he has no longer been a member of the Sub-Commission, he has remained one of its special rapporteurs. At no time during this period, therefore, has he ceased to have the status of an expert on mission within the meaning of Section 22, or ceased to be entitled to enjoy for the exercise of his functions the privileges and immunities provided for therein.

58. Doubt was nevertheless expressed by Romania whether Mr. Maz­ilu was capable of performing his task as special rapporteur. Romania emphasized that he had been taken seriously ill in May 1987, and had therefore been placed on the retired list pursuant to decisions taken by the competent medical practitioners, in accordance with the applicable Romanian legislation; according to the Romanian written statement, he was at that time still unable to carry out his mandate as special rapporteur. Mr. Mazilu himself informed the United Nations that the state of his health did not prevent him from preparing the report entrusted to him or from going for this purpose to the Centre for Human Rights in Geneva. When a report by Mr. Mazilu was circulated as a document of the Sub- Commission, Romania expressed the view that it was obvious that “since becoming ill in 1987, Mr. Dumitru Mazilu does not possess the intellec­tual capacity necessary” for the preparation of “a report consistent with the requirements of the United Nations” (paragraph 26 above).

1. It is not for the Court to pronounce on the state of Mr. Mazilu’s health, or on its consequences on the work he has done or is to do for the Sub-Commission. It is sufficient for it to note, first that it was for the United Nations to decide whether in the circumstances it wished to retain Mr. Mazilu as special rapporteur, and secondly to take note that decisions to that effect have been taken by the Sub-Commission.
2. In these circumstances Mr. Mazilu continues to have the status of special rapporteur, and as a consequence must be regarded as an expert on mission within the meaning of Section 22 of the General Convention. That Section is accordingly applicable in the case of Mr. Mazilu.

61. For these reasons, The Court, Unanimously,

Is of the opinion that Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations is applicable in the case of Mr. Dumitru Mazilu as a special rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of December, one thou­sand nine hundred and eighty-nine, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secre­tary-General of the United Nations.

(Signed) Jose Maria Ruda, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

Judges Oda, Evensen and Shahabuddeen append separate opinions to the Advisory Opinion of the Court.

(Initialled) J.M.R. (Initialled) E.V.O.