Exposés écrits

INTERNATIONAL DF JUSTICE

PLEADENGS,ORAL ARGUMENTS, DOCUMENTS

INTERPRFTATIONOF THE AGREEMENT
OF 25MARCH 1951 BETWEEN
THE WHO AND EGYPT

COUINTERNATIODEJUSTICE

MEMOIREPLAIDOIRIES ET DOCUMENTS

INTERPRÉTATION DE L'ACCORD
DU 25 MARS 1951
ENTRE L'OMSET L'ÉGYPTE CONTENTS -TABLEDES MATIÈRES

Page
Requestfor AdnsoryOpinion - Requête pouravisconsultatif

THEDIRECTOR-GENE ORATHE WORLD HEALTH ORGANIZATI OON
THE REGISTRA OF THE INTERNATIONC ALUR-rOF JUSTICE. .. 3

Anuexes IorheRequesi!or AdvzsoryOpinioti
Resolution WHA33.16 adoptcd on 20 May 1480at the lifteenth
meetingof the Thirty-third World Health Assembly .... 4

RésoEutionWHA33.16 adoptéele 20mai 1985hla quinzièmescance
de la trentc-troisièmeAssembléemondiale de la Sa. . 5
Agreementbetween thcWorld Health Organization and the Govern-
ment of Egyptfor the purposes of deiermining the privilcges,
immunitiesand Iacilittobe grantedin EgyptbytheGovernment
to theOrganization, to the represenoftits Mcrnbersand toits
experts andofficiaisignedatCairo, on25 March 1951 . . 6

Accord entrel'Organisation mondialedela Santéet leGouvernement
dc l'Egypte pour determiner les privilèges,immunitéset facilités
accordésen Egypte par le Gouvernement à l'Organisation, aux
reprksentantde ses Membresà scsexperts àtscs fonctionnaires.
Signéau Caire, le 25 mars 1951.............. 15

D~cuments received from Internaiîonal Oqanizations- Ihcurnents
reçusd'organisationinternationales

DOCUMENT TSRANSM ~TEDBY THE DIKECTOR-GENE OFAHE WOKLD
HEALTA OBGANIZATIO (NRTICLE 65, PARAGRAPH 2, OF THE

STATUTE) ........................
1.Extracts from collectioof officidocuments of thc World
Hcalth organization ..................
II Documents of the Thirty-third World Health Assembly,
Gcneva, 5-23May 1980, on1tem 42:Transfec of the Regional
Office for the Eastern Mediterranean........

III. Documents rclcrred to by the Director of the Lçgal Division of
the World Health Organization thefifteenth plenary meeting
of the Thirty-third World Health Asscmbly. ........

ADDITIONAL DOCUMENT OR EX'l KACTOF DOCUMENTSSUPPLIE DY
THP.WORLDHEALTA ORGANIZATION FOR INFORMATI ON
1. Collectioof oflicial documents ol the World Hcalth Organi-
zation .......................
II.Mimeographed or typewritten documentof the World Hcülth

Organizarion ....................
FirsWt orIdHculthArsenihiyGeileva74June-24JuIy 1948 .

Commission du siègcdc l'organisation regionale Projct de
resolution soumis par la dclcgation égyptienne . .X INTERPRETATION OF AGREEMENT
Puge
Provisional verbatim record of the eleventh plenary meeting,
10July 1948, at!O a.m. ............... 34

Summary of resolutions and decisions of the first World
Health Assembly ..'................ 37
Frrstm~eringof the RegionalCommitteejor the EasternMediter-
mneun, Carro,7-10Februuv 1949 ........... 38

Agenda for the meeting of the Regional Committec for the
Eastern Mediterranean area ............. 38
Draft niles of procedure,............... 38
Location of theRegional Officeof the WHO in Eastern Medi-
ierraneanarea ................... 44
Role of the Sanitary Bureau at Alexandria as a Regional
Bureaufor EpidemiologicalNotifications and Information
under theInternational Sanitq Conventions. Statementby
the Director-General ................ 45
Draft budget for Regional Office,Eastern Mediterranean
Region, including epidemiologicai intelligence statio. .46
Summary minutes, Sessionsof 7 and 8 February 1949 ... 48

Agreementbetwe.cnthe Wuridflealih Orgunizritianand the Gov-
ernmentof Egyp~,Currn,25 March 1951 .........
Memorandum on Privilegcs,Immunities and Exemptions of
the Regional Office of theWHO ...........
Letterfrom theMinistryof Foreign Affairs of Egypt(Depart-
ment ofConferences,International Organizationsand Çon-
ventions) to Dr. Ali Tewiik ShoushaPacha, Under-Secre-
tary of State for Health, future WHO Regional Director,
Cairo,4 May 1949 .................
Note from the Minister forForeign Affairsad int. to thc
Egyptim Council of Ministers, and the decision of the
Council, Cairo, 25 and 29 May 1349 .........
Note from the State Council Adviser (Contentieuxfor the

Ministries of Foreign Affairs and Justice) to the future
WHO Regiond Director, Cairo, 29 May 1949 .....
Letter from the StateCounci Aldviser (Contentieux for the
Ministrie;.of Foreign Aflairs and Justice) to the future
WHO Regional Director, Cairo, 4 June 1949 ......
Letters of transmittal, Cairo, 18and 23 Jut949 ....
Executive Board, Fifth Session.Agreement with the Govern-
ment of Egypt ...................
SeventhWorld Health Assembly.Withdrawal of Point 5ofthe
Notes exchanged in connectionwith the Host Agreement-
between the Goverment of Egypt and WHO .....

Lease between the Governmentof E~pr and the World Hea11h
Orgunrzaîion ....................
Text of the lease, 2April 1955 ............
Subsequent documents ................

RulesoJProcedure forSub-Commit~ee A of~heRegionalCommit-
teefor the Eastern Mediterranean............ CONTENTS X1

Page
Speciaisession oj the RegiotrComnzrlrcefor the EasternMedi-

remneun, Genevo, 12 Muy 1979. . . . . . . . . . . . . 81
Woking Groupon the questionou !rurideroftheRcgzni~uOlfficc
for the Eu.rtrrnMediterruneun1979-1980 . . . . . . . .

Membcrs of the Working Ciroup .. . . . . . . . .
Unolficial summary of the dcliberations of thc Working
Group üt its ïirst meeting. 29 May 1979,Gcneva . . .
Extrücts Irom thedocuments and records of the thirty-second
World Health Asfemblyand the sixiy-faurth sessionof the
Executive Board . . . . . . . . . . . . . . .
Second meeting or the Working Group Draft agcnda . . .
Qucstions relatingtothe rcmova)of the Rcgiunal Oflice from
thepresent location(EMR/EBWG/2 and EMR/EBWG/2,
Add 1). . . . . . . . . . . . . . . . .
Qucstions relating to thc choice ol a new location for the
Regional Office for the Eastern Mcditerranean, Anncxcs

Second tneeting ofthe Working Group, Geneva. 24. 25 July
1979,summary of the deliberations . . . . . . . .
lfeudquorters of the WorldIIeüfrhOrgiinrzot~o. . . . . . .

Lettre du depastement politiquc fkdéralsuisse au secrétaire
exécutit de la Commission intérimaire de l'OMS, 1I dé-
cembre 1946 . . . . . . . . . . . . . . . . . .
Exchangeof leitcrs berween the Legal Counsel ofthe United
Nations and the Birector of the Legal Department of the
WHO, 4 and 28 Apil 1972 . . . . . . . . . . . .
Exccutive Roard documents, 1978-1979 . . . . . .
Echange de lettres entre le Directeur générl e l'OMSet le
directeude l'Officelederal de la santépublique de Suisse,
2 novembre et 21 décembre1979 .. . . . . . . . . .

III. Documents d other international organizatians . . . . . . 110

Office iiirernutional d'hYg~Bpuhbque. s~rioris ordzirairedu
comzrEperntutienr,procès-verhciudes séances,sessioride no-
venihre1927 eloc{ribrr1938 . . . . . . . . . . . . . . 110
Unitcd Nuriotz. . . . . . . . . . . . . . . . . . . . 113
Reports oftheAdministrativeCommittce on Co-ordination to

the Economic and Social Council,3 Deccmber 1948 and 25
May 1949 . . . . . . . . . . . . .... 113
Interr~urzonaIlhour Orgutiisation, ItiterriatIdhuur Coiqer-
ence,twrniy-riinfhsession, Montreol, 1946 . . . . . . 116

Record of proceedings, Appendix VI, second item on the
agenda : Constitutional Questions . . . ,. . . . . . . 115

DOCUMFN ~CE~VED FKOM THE IWIEKNATIO NAABOUR ORGANISA-
TION . . . . . . . . . . . . . . . . . . . . . . . . . 121
Letter[rom the Lcgd Adviser and Assistant Director-General of thc

International Labour Organisation to theRegistrar,8 September
1980.. . . . . . . . . . . . . . . . . . . . . . . 121XII INTERPRETATION OF AGREEMENT

Page
International Labour Conference, twenty-ninth session, Montreal,
1946,Report II(1)Constitutional Questions, Par:Reports of
theConferenceDelegaiion On Constitutional Questions, Chap-
terIII . . . . . . . . . . . . . . . . . . . . . . . . . 125
Agreement concerning thelegalstatusof the International Labour
Organisation in Switzerland aïter the dissolution of the Leagueof
Nations. . . . . . . . . . . . . . -. . . .. . . . ~ . . 127

Writted Statements- Exposés écrits

LETTR EU SOUS-SECRET GAIRÉRAL DU MINIST~RE DES RELATIONS
EXT~RIEURESET DU CULTE DE BOLIVIE . . . . . . . . . . . . .

WRLTTE NTATEMENT SUBMITTE DY THE GGOVERNME ONTTHE
HASHEMIT KINGDOM OF JOROAN . . . . . . . . . . . . . .

EXPOS ECRITOU GOUVERNEME DESTEMIRAT ARABES UNIS . . . .

WRITTEN STATEMEN OT THP GOVERNMEN OF THE REPUBLI CF
IRAQ ... .......................
WRITTEN STATEME NTTHE STAT EF KUWAIT . . . . . . . .

WRI'TCE STATEUEN OF THEGOVERNMF NFTEGYPT . . . . .

1. TheAgreementof 25March 1951between theWHOand Egyp is a
Headquarters Agreement . . . . . . . . . . . . . . . . .
2. TheAgreement of25 March 1951betwcen theWHO and Egyptisa
Headquarters Agreement for the WHO Regional Office for the
Eastern Mediterranean at Alexandri.. . . . . . . . .
3. Section37af the 11Agreementis applicableincaseoftransferd
the Regional Office froEgypt . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . .
Annexes ro the WrzttenSturemenoj the Govert~men[ofEmpt . .

Lettcr from thc State Adviser(AdvisoryDepartment for theMin-
istnes of Foreign Affairs and Justice) to the WHO Regional
Director, Cairo, 23 Masch 1950 . . . . . .. . . . . . .
Minutesofthe thirty-third open meetingof theEgyptian Chmbcr
of Deputies hcld in Cairo on 25, 26 and 27 June .9. . .

WR~ITE NTA'FEME ONFTHE GOVERNME O FTHE UNITED STATE OF
AMERICA. . . . . . . . . . . . . . . . . . . . . . .
Introduction. . . . . . . . . . . . . . . . . . . . . . .

1. The questions . . . . . . . . . . . . . . . . . . . .
II. Jurisdiction of the Cour. . . . . . . . . . . . . . .
Statement of facts .. . . . . : . . . . . . . - . . . . .
Interest of the United States . . . . . . . . . . . . .

Statement oflaw . . . . . . . . . . . . . . . . . . . . .
1. The provisions of Section 37of the Host Agreemcntof25
March 1951 are applicable to any rcmovaiof thc Eastern
Mediterranean Regional Offic(EMRQ) from Egypt . . .
A. The HostAgreement isa "headquartersagreement" whose CONTENTS XII1

terms indicate that the parties intended EMRO tu be

located in Egypt lor thc duration of the Agreement . .
R Therc is only one intetpretation of tkc Host Agreement
that givescffect to Section37and to the object and purpose
of thc Agreement ..........-...
C. For practical reasons, as illustrated by internaiional prac-
ticeit1sunlikelythüt theparties intended to allowremoval
of the Regionül Office without notice ........
D. The history of the Host Agreementconfirms tharthe par-
tics iniendcd that Section 37 apply to the removal of the
Regional Offlce from Egypt ........

II. Section37 irnposcslegal rcsponsibilitieson the parties during
any IWO-yearnoticeperid ............
A. The Agreement remains Eullyin force during the two-ycür
notice period ..................

R. During the two-year period the partics are bound by the
Agreement and must perlorm it in good faith ....
C. The parties mus( ncgotiate during the two-year pcriod for
an orderly transitiontoa new legal régime . . . .
Conclusions ....................

EXPOS E CRI~ DU GOUVERNEMEN TE LA RÉPURLIQUE ARABE SY-
RIENNE ........................

1 Oral Statements - fiposes oraux

Le droit international gknkral et le transfert du siège d'une
organisation internationale .............
I.'accord du 25 mars 1951ne regle ni le choix du siègedu Bureau
régionalni le transfert dc ce sikge ... . .
Le sii-gcdu Bureau régionala été établipar un accçirden forme
simplifikcqui est dknonqahlc ............
Le trünslertdu siègen'est pas prévudans l'accordet lc principe de
l'effeutilc ne saurait s'appliqucn l'espèce .... . .
Le transfert du siCgen'est paslie àla dénonciationde l'accord . .

La question du transfert du siégedu Bureau rkgionaln'entre pas dans
.....
le cadre d'une revision de l'accord du mars 1951
Le Bureau fégionala été créé,antérieurementil'accord,par un acte
unilatérade 1'Assemblcemondiale de Ià Santi, accepte commetel
eten toutcsouveraineté par 1'Etathhte, ct le transfcrt de son siége
devrait ktre effectuépar un acte de mëme naturc .......
La situation actuelle met le Bureau régionaldans I'incapacltéde
remplir la mission qui lui cst dévoluc..........XIV LNTERPRETATION OF AGKEEMENT

Page
ORAL STATEME NYTMR. SCHWEBE (L NITED STATE SF AMERICA .) 230

1.'Ineoriginsof the WorldHealth Organization'sRegionalOfficein
Alexandria ....................... 231
II. The arguments against the applicability of Section 37 of the Host
Agreement ....................... 234

1. The argumentthat the Host Agreement is not a headquarters
ag. .ment but merely an agreement on privileges and immu-
nitics ........................ 234
2. The clairn that the Alexandria office was established by an
agreement other than and anterior to the 1951Host Agree-
ment .................... : ... 239

3. Thecontention that the Organization mayunilaterallychanac
deçision it has taken in exercise of its exclusiveauth.r. 247
4. The argumcnt rhar a decision to transfes the Regional Office
from the territorof Egypt does not entail revision or denun-
ciation ol the Host Agreement ............. 251
5.The allcged legal effeof the breach of diplornatic relations
withEgypt. ..................... 253
Sumrnary of the argument in favour of the applicabiiiof SEC-
tion37. ....................... 255

L'accord du 25 mars 1951n'est pas un accord de sikge ..... 259
Le Burcau régional a étéétablien vertu d'un accurd cn forme sim-
plifiée qui estdénonçablselon les règlesétabliet reconnues du
droit international ................... 260

Rtfutationdes
argurncnts visantétayerlaconclusion que
la sectio37 de l'accord du 25 mars 1951 ne s'appliquepas au
transfert du siégedu Bureau régional ............ 263
Premièreversiondu premier argumcnt :l'accord ne pcut pas juridi-
quement réglerla quesrion du choietde l'établissementdu siège
du Bureau régional................... 264
Deuxiémeversion du premier argument :l'accord n'a pas eu pour
objet de fixelesiègedu Bureau régional ..... .. 267
Troisième versiondu prcmierargument : l'accordviseautre choseque
l'établissementd'unsitgc ................ 268
Deuxieme argument :il existe deuxaccords ......... 269

Troisihme argument : le chhp d'application de lasection37 de
l'accord est limitéexçlusivcment acas de dfnonciation faisant
suite une demande de revision .............. 272
Seconde question poséeà la Cour ............. 273

QUESTIONS BY THE PRESIDENT AND JUVGES ODA AND SETTE-
CAMAR A QUESTIONDE M. MOSLER........... 275

EXPOSE :KAL DE M. VIGNES (ORGANISATION MONDIALE DE I,A
SANTB)....................... 278

Réponsesaux questions du Président ...... ... 278 CONTENTS XV

Page

Premièrequestion .................... 278
Deuxiémequestion .................. 281
Troisitrne question ................... 282
Quatrièmequestion ................... 283
Cinquikme question ........ ........ 283
Réponse à la question poséepaM . Oda ........... 285
Rkponse iila question poséepar M. Sette-Camara....... 285

EXPOS ORAL n~M .OSMAN (EGYPTE) ............. 288

Reponse Lila troisikmequestion Prksident ......... 288
Réponsehla quatrieme question du Président ......... 288
Réponse a la question de M Mosler ............ 288

Comments on Judge Oda's question ............. 290
Comments on the President'sfirst questi.......... 293
No anterior agreement controls the location and maintenance of ihc
Regional Officc ..................... 294

EXPOS ORAL DE M .YASSEE N~IRATS ARABESUNIS) ...... 297
Observationssurl'exposéoraldeM . Schwcbcl ......... 297
Observations sur l'exposéoral de M. Osman .........
298

READING OF THEAUVISORYOPINION .............. 301

Annexet sothe OralStatements . Annexesaux expods oraux
Further observations of the Government of the United States of
Amenca ........................ 305

Cornplementarystatement of the Government of Egypt..... 307

Correspondence. Correspondance ................ 315WRITTEN STATEMENTS

EXPOSÉS ÉCRITS LETTREDU SOUS-SECR~TAIRE GÉNÉRAL

DU MINISTEREDES RELATIONSEXTÉRIEURES

ET DU CULTEDE BOLIVIE '

15juillet 1980.

Par référenceà votre avis no64516,du 6juin, se rapportant àla résolution
noWHA33.16approuvéele 20 mai 1980 à le trente-troisièmeAssembléemon-
diale de l'organisation mondiale de la Santé,sur le déplacementdu Bureau
régionalde l'organisation mondiale de la Santéde l'esde la Méditerranée a

Alexandrie, Egypte,j'ai l'honneur de vous communiquer que le Gouvernement
de la Bolivie,du débutde sa participation dans les organismes spécialisses
Nations Uniesjusqu'àprésent,acontribuéàla soutenancede lanature technique
de ceux-ci en évitantdans la mesure du possible leur politisation.
En conséquence,le Gouvernement de la Boliviesoutient ce point de vue en
tenant compte desjustifications suivantes pour que le siègedu Bureau régional
de l'est de la Méditerranéede l'organisation mondiale de la Santéreste à
Alexandrie:

1. II ne se trouve pas de causespour considérer queles différences politiques
qui affectent la région puissentnuire aux activités d'uneorganisation interna-
tionale d'ordre technique et d'une finalité nettement humanitaire.
2. Approuver la résolutiontransférantce Bureau pour des causes politiques,
loin defaciliteà l'organisation mondiale delaSantéla réalisationde ses buts,
lui présentera un grave antécédentqui la soumettra à la doctrine politique
dominante, ce qui est nuisible pour les activitésque réalisentles organismes
spécialisés.

3. Les activitésde cette Organisation sont entièreme«techniques et son
bureau régional d'Alexandrie assume lesprojets techniques dans la région.
4. Le Conseil exécutifde l'organisatioadécidé de présenterà l'Assemblée
généralede l'organisation, à la trente-troisième session réalisée sremiers
jours du mois de mai 1980 :

u) le rapport du groupe de travai;
h) le sommaire des discussions du Conseil.
5. L'information présentéepar le groupe de travail qui a étédistribuéele
16janvier 1980portait les conclusions suivante:

0) le probléme de donner du personnel qualifiéainsi que d'avoir un local
approprié pour l'établissementdu Bureau ;
h) en cas de transfert du Bureau, l'organisation mondiale de la Santé devra
affronter un montant entre 1360 000 et 4 500000 dollars américains;
cJ encasdedeplacement lepourcentagededépenses monteraitde 14, 5 à77 %

en relation au pays du siége.
6. En tenant compte des raisons exposéespar le Conseil exécutifde I'Orga-

1Parvenueau Greffele12août 1980.[Note duGreffe.]nisation mondialede la Santé, ondevraitajournerla discussionde ce sujet

jusqu'a1981quandauralieu laréuniode1'Assemblée ondialedela Santéc,e
quipermettraitdel'étudrlussoigneusement,arlegroupede travalinsique
les pays membresn'ontpas eu le temps suffisantpourl'analyser.

(SignéMarceloOSTRI ARIGO. WRITTEN STATEMENT SUBMITTED BY THE
GOVERNMENT OF THE HASHEMITEKINGDOM OF

JORDAN l

9August 1980.

1.The matter referred to the honourable Court for an advisory opinion does
not involve a dispute over the interpretation of any of the provisions of the
Bilateral Agreement dated 25 March 1951between the Government of Egypt
and the Worid Health Organization.It isquite clear that the establishment of a
regional office in Alexandria, Egypt, for the WI-IO,is not based on that Agree-
ment. It is the result of a decision taken by the Health Assembly to this effect.
Any transfer of the Regional Office, therefore, cornes squarely within the sole
junsdiction of the Health Assembly.

Article 44, paragraph (b), of the Constitution of the World Health Organiza-
tion entrusted the Health Assembly with the task of establishing a regional
organization to meet the specid needsof an area. Under Article 46 each regional
organization shallconsistof aspecialcommitteeand a regionaloffice.Article 50,
paragraphs {a)and (b),state that thefunctionsof the regionalcornmitteeshallbe
to formulate policiesconcerningmatters ofexclusivelyregionalcharacter and to
supervize the activities of the regional office.
Ttisclear, therefore,that thehostcountryin theregion cannot disnipt thework
of the Organization and have a veto power over the continuation of the func-
tioning of the regional organization.
2. The Bilateral Agreement signed between theGovernment ofEgypt and the
WHOismeant tofacilitate thetaskof theRegionalOffice.It isintended toframe
the relationship betweenthe RegionalOfficeand the hostcountry.It would have
never been the intention of the Health Assembly of the WHO to delegate its
authonty to thehostcountry. Toargueotherwisewouldrender that delegationof
power, unconstitutional.
Ttis worth noting that the provisions of the Agreement ernphasizethe privi-
legesand immunities of the WHO staff members.The claimthat the transfer of
the Regional Officeis subjectto negotiations arnounts to givingthehost country
the power to overrule thedecisionof the WHO Health Assernblyand undermine
its authority. This was never the intention of those who decided to establish a
regional office in Egypt.

3. Sincewe maintain that the Bilateral Agreement betweenWHO md Egypt
does not apply to the RegionalOfficein Alexandria, it followsthat Section 37of
Article XII of theAgreementisnot applicablein the eventthat theWHO Health
Assembly wishes to have the Regional Office transferred from the territory of
E~YP~.
4. Moreover, theideabehind theestablishment of a regionalorganizationwas
thecreation of abody tohelp memberStatesin theregion. Sincethe Statesof the
region have dready decided to boycott the Regional Officeand not CO-operate

'Receivedin theRegistryon 13August 1980.[Note by the Registrv./142 INTERPRETATIONOF AGREEMENT

with it, it goeswithout saying, therefore, that the very idea behind establishing
the Regional Officewill be defeated ifthe Office stays in Egypt. Its continued
presencein Egypt.therefore,willbe aburden on themotherorganization and not
a service to it nor to those members who are in need of its services and care.
5. Both the title of the Agreement and the preamble indicating its purpose
ernphasize that the intention of the parties was to determine "the privileges,
immunities and facilities to be granted in Egypt by the government to the

Organization, to the representatives of its Members, and to its experts and
officials". Nothing in the Agreement shows that member States of the Health
Assemblyhavedelegated theirsovereignnghts toone memberState,i.e.,thehost
country N.or is there anything to show that the Agreement governs the estab-
lishment of the Regional Office and/or its transfer.
6. The Health Assernblyistheonlybody whichhasauthority andjurisdiction
to decide where and when to establish a regional officeof the WHO. It takes its

decision in the lightof the circumstances prevailingat the tirneofsuch decision,
taking naturallyinto consideration the needsof the member Statesin the region
and the widest possible services of the regiond office. If and when those cir-
cumstances change then it is only reasonable and natural [hat the same body
whichhad established the regional officeshould have the same rights to change
its si~e.
7. At the nsk of repeatingourseIves, it isourcontention that theprovisionsof

Section37 of Article XII of the Agreement between Egyptand the WHO under
reference refers only to possible modifications to the provisions of the Agree-
ment relating to the objects of the Agreement only.Theseobjects are defined in
the prearnble which States the following :

"Desiring to conclude an agreement for the purpose of determining the
privileges, immunities, and facilitiesto be granted by the Govemment of
Egypt to the World Health Organization, to the representatives of its
Members and to its experts and officials in particular with regard to its
arrangements in the EasternMediterranean Region,and of regulatingother
related malter."

It is obvious, therefore, that the intention of the parties in conduding this
Agreement wasto agreeon the matterscontained therein and cannot gobeyond
the four corners of this instrument.
8. The Govemment ofJordan reservesits right toadduce furtherargumentsin

support of its viewsif and when necessary. EXPOSÉ ÉCRIT DU GOUVERNEMENT
DES ÉMIRATS ARABESUNIS l

Conformément àla résolutionWHA33.16adoptéepar l'Assembléemondiale
de la Santéle20 mai 1980en vertu del'article96,paragraphe 2,dela Charte des
Nations Unies,del'article76delaConstitution del'organisation mondiale dela
Santéetdel'articleX,paragraphe 2,del'accordentrel'organisation desNations
Unieset l'organisation mondiale de la Santé,la Courinternationale deJustica
étésaisie d'une requêtepour avis consultatif sur les questions suivant:s

1. Lesclausesde négociationet de préavis énoncéedsans la section 37
de I'accorddu 25mars 1951entre l'organisation mondiale de la Santéet
I'Egyptesont-elles applicables au cas où I'une ou ['autrepartie a I'accord
souhaite que le Bureau régionalsoit transféré horsdu territoire égyp-
tien?

2. Dans l'affirmative, quellesseraient les responsabilitésjuridiques tant
de l'organisation mondialede laSantéquede 1'Egypteencequi concernele
Bureau régional à Alexandrie, au cours des deux ans séparant la date de
dénonciationde l'accord et la date oii celui-ci deviendrait cadu»?

Il s'agit de l'interprétation d'untexte d'un accor:la section 37 de l'accord
susmentionné.Leprobltme qui sepose esten effetdedéterminerlaportéeexacte
de cette section.
Le Gouvernement des Emirats arabes unis se bornera à présenter quelques
observations sur l'un des aspects du probltme,à savoir la possibilitéde l'Or-
ganisation mondiale de la Santéde transférer son Bureau régionalhors du
territoire égyptien.C'est précisémentcet aspect qui a étéla cause directe de la
requêtede l'avisconsultatif dont il s'agit.

Quelle est donc la portéede la section37 ?
Cette section est ainsi conçue :
c Le présent accord peut être reviséà la demande de l'une ou l'autre
partie. Dans cette éventualitél,es deux parties se consultent sur les modi-

fications qu'il pourrait y avoir lieu d'apporter aux dispositons du présent
accord.Au cas où,dans le délaid'unan, lesnégociations n'aboutiraientpas
àuneentente, leprésent accord peutêtredénoncé par I'uneou l'autre partie
moyennant un préavisde deux ans. »

Cette disposition n'estpasunique, unedisposition analoguesetrouve dans des
accords que l'OMS a conclus avec d'autres Etats, dont le Danemark 2, les
Philippines3 et la Suisse etque 1'Egyptea conclus avecd'autres organisations,
dont I'OACI 5.

' Parvenau u Greffe le 2août 1980.[Noie duGref/e.]
La section35deI'accordsigné3Genéve.lé29'ju 1i955etàCopenhaguele 7 juillet
1955.
La section35de l'accord du22juillet 1951.
L'article29deI'accordentre Conseilfédérasluisseetl'organisationmondiade
laSanté.Recueidles traitévol.26,1949,p. 346.
La section37 deI'accorddu'27août 1953. Il est évidentque cette section concerne l'accorddu 25 mars 1951,elle con-
cerneprécisémenlta revisiondesdispositions decet accord. Ilfaut donc savoirsi
cet accord réglele choix du siègedu Bureau régionalet le transfert de ce
siège.
LeGouvernement desEmirats arabesunisconstate que cetaccord ne traite ni
del'unni de l'autredecesdeux points.Parconséquent,sasection 37ne peut leur
êtreappliquée.

En effet, comme le dit son titre, c'estun accord «pour déterminerles privi-
lèges,immunitéset facilités accordés en Egypte par le Gouvernement ii l'Or-
ganisation, aux représentants de ses ~embres, à ses experts età ses fonction-
naires )>.
Le préambule confirmecette réalité :

<<Désireuxde conclureun accord ayantpour objet de déterminerlespri-
viléges,immunitéset facilitésqui devront êtreaccordéspar le Gouverne-
ment de 1'Egypte à l'organisation mondiale de la Santé, aux représentants
de ses Membres, a ses expertsetà sesfonctionnaires, notamment en ce qui
concerne lesarrangementspour la régiondela Méditerranéeorientale,ainsi
que de régler diversesautres questions connexes...O

L'examen minutieuxdu textedel'accorddémontreclairementque cet accordn'a
pour objet que des pnviléges,immunitéset facilites. Aucune disposition ne
déterminele choix du siège. Leparagraphe v) de l'article premier relatif aux
définitions mentionne,il est vrai, le Bureau régionalà Alexandrie :

((Les termes (organesprincipaux ou subsidiaires doiventêtreentendus
commecomDrenantl'Assemblée mondialedela Santé.leConseilexécutif,le
Comitérégionalde la régionde la Méditerranée orientaleet toute subdi-
visiondecesdiversorganes,de même quelesecrétkat etleBureau régional

à Alexandrie. ))
Mais certainement, il s'agitlà non pas d'une disposition qui prévoit l'établisse-
ment du Bureau à Alexandrie, mais d'une simple constatation que le Bureau
existait déjà.

L'accorddu 25mars 1951doit de toute façon 2treinterprété àla lumiere de la
Constitution de I'OMS,or ilest difficiled'admettre queI'OMS,en concluant un
accord pour déterminerles privilèges, lesimmunitéset les facilités qu'ondoit
accorder A l'organisation, aux représentantsde ses rnembers et a ses fonction-
naires, ait voulu restreindre la compétence que laConstitution reconnaît a
l'Assembléedela Santéencequiconcernelechoixdu sièged'un bureaurégional.
L'Etatqui conclutun telaccord avecl'OMS,surtoutquand ilestmembredecette
Organisation, est censéconnaître la portéede cette compétence.

Quoi qu'il en soit, le Bureau régionalpour la Méditerranée orientale existait
avant laconclusion de l'accorddu 25mars 1951.11 aété établ àiAlexandrie par
un processusjuridique antérieur A la conclusion de cet.accord.
C'estl'article44 delaConstitution del'organisation mondialede laSantéqui
concerne la détermination des régions géographiqueset l'établissementdes
organisations régionales.
Cet article est ainsi conq:

« a) L'Assembléede la Santé,de temps en temps, détermineles régions
géographiquesoù il est désirable d'établir uneorganisation régio-
nale.
b) L'Assembléede la Santépeut,avecleconsentement de la majoritédes Etats Membres situésdans chaque région ainsidéterminée,établir une
organisation régionalepour répondre auxbesoins particuliers de cette
région.II ne pourra y avoir plus d'une organisation régionaledans
chaque région.>>

D'après cet article de la Constitution l'établissementd'une organisation
régionale, y compris évidemment le choixdu siégede son bureau, relèvede la
compétencede l'Assembléede la Santé.
C'est conformémenta la Constitution de I'OMSque le siègedu Bureau de la
régionde la Méditerranéeorientale a étéétabD li.ans sa résolutionWHAI.72de
juillet 1948,l'Assembléede la Santéadélimité lesrégionsgéographiqud eo,nt la
régionde la Méditerranée orientale,et

Dicide dechargerleConseilexecutif : 1)deconstituer desorganisations
régionales entenant compte de la délimitation desrégions
établies, des aue sera acauis le consentement de la maiorité des Etats
~ernbris situ& dans lesdites régions l..D

LeComitérégionalpour la Méditerranéeorientale a tenu sapremière session au
Caire, du 7 au 10février1949,et a recommandé le choix d'Alexandrie comme
siègedu Bureaude la régionde la Méditerranéeorientale. Le Conseilexécutif a
examiné lerapport sur cette session et a adoptésa résolutionEB3.R30 de mars
1949, dans laquelle il:

« 1. Approuve sous condition le choix d'Alexandrie commesiègedu
Bureau régionalpour la Méditerranée orientale, cettedécision devantêtre
soumise aux Nations Unies ;
2. Prie le Directeur généralde remercier le Gouvernement égyptien

d'avoir généreusemenm t is l'emplacement etles locaux d'Alexandrie à la
disposition de l'organisation pour une périodede neuf ans, moyennant un
loyer nominal de IOpiastres par an ;
3.Approuve la création d'un Bureau régionalpour la Méditerranée
orientale qui commencera à fonctionner le lerjuillet 1949ou vers cette
date ;
4. Approuve la résolution du Comité régionaldemandant que {iles
fonctions du Bureau sanitaire d'Alexandrie soient intégrées a celles de
l'organisation régionalede l'Organisation mondialede la Santé 2.1)

C'estainsique leComité aété crééelteBureauétablien 1949.LeBureaua en
effet commencéAfonctionner en 1949,bien avant la conclusion de l'accorddu
25 mars 1951sur les privilèges,immunitéset faciIité s..
C'est donc par un acte unilatéraldes organes compétentsde I'OMSselon la

Constitution de cette Organisation que le siègedu Bureau de la régionde la
Méditerranéeorientaleaété déterminéP . ourêtreopposable à I'Egypte,cetactea
diî êtreacceptépar elle.Maiscette acceptation n'a pointpour effetde changer le
statut juridique de l'acte,et surtout de faire dépendrele transfert du siégede la
volontéde 1'Eypte.Et cela se comprend. L'Egypte est supposée savoir, en
acceptant cet acte unilatéral,que la déterminationdu siéged'une organisation
régionaleappartient, selon la Constitution de l'OMS, à l'Assembléedc la Santé.
On peut m&meaccepter que la déterminationdu siègese réalisepar un accord.

' Recueilder résolufionset décisiodeliAssemhléemondiulede lu Sonte erdu Conseil
exécuriJvol. 1, 1948-1972,p. 315.
* Jbid. p. 332.L'Etat où le siège estchoisi conclut,en acceptant la décisionde l'organisation,
un accord aveccelle-ci.On peut accepterque lesiègedu Bureaurégionalpour la
Méditerranéeorientale a étéétabli à Alexandrie par un accord qui résultede
l'acceptation, par I'Egypte,de la décisiondes instances compétentesde l'OMS.

Cet accord n'estcertes pas l'accorddu 25 mars 1951,et c'estun accord en forme
simplifiéequi necontient pas de clauseconcernant sadénonciation.Or, selonle
droit international,

un traitéquine prévoitpas qu'on puisse ledénoncerne peut faire l'objet
d'une dénonciation à moinsqu'ilne soit établiqu'ilentrait dans l'intention
des parties d'admettre la possibilité d'unedénonciationou que le droit de
dénonciation nepuisse êtredéduitde la nature du traité i).

C'est l'article56dela convention de Viennesur ledroitdes traitésqui énonce
cette règleque la Commission du droit international a confirméplusrécemment
dans l'article56de son projet sur Icstraités conclusentre Etats et organisations
internationales ou entre deux ou plusieurs organisations internationales.
Au reste,la Commission du droit international dans soncommentaire sur cet
article donne, comme exemple typique ou le droit de dénonciation peut être

déduitde la nature du traité,les accords de siége :
<<Parmi les traitésentre un ou plusieurs Etats et une ou plusieurs orga-
nisations internationales, il est une catégoriede traitésqui, en I'absencede

clause ayant cet objet, semblent dénonçables :ce sont les accords de siège
conclus entre un Etat et une organisation. En effet, le choixdeson siègepar
une organisationinternationale correspond pour elle à l'exerciced'un droit
dont il est normal de ne pas immobiliser l'exercice - d'ailleurs. le fonc-
tionnement harmonieuxd'un accorddesiègesupposcentre l'organisation et
1'Etathâte des relations d'unenature particulièredont le maintien ne peut
êtreassurépar la volontéd'une partie seulement l.s

La doctrine a déjàététrèsclaire dans ce sens. M. Philippe Cahier dit que

certains accords de siègene prévoient pasde dénonciationde l'accord ...
Dans ce cas-là il semble que la possibilitéde dénonciationn'est qu'unila-
térale,c'est-à-direque c'estl'organisationqui est titulaire de cedroit qu'elle
peut exercer en changeant de sihge,mais que 1'EtatIui-mêmene saurait le
faire.Cette règlevaut aussipour l'accorddesiègeentre l'Unescoetla France
qui ne prévoitni la dénonciation,ni le changement de siège,étant donné

qu'une organisationdoit toujoursêtrelibrededéplacersonsiègecommeelle
l'entend 2. u
A supposer donc que l'établissementdu siégedu Bureau de la régionde la

Méditerranéeoiientale ait étéréaliséen 1949en vertu d'un accord, en forme
simplifiée,cetaccordqui,quoiqueneprévoyantpasqu'onpuisse ledénoncer,est
par nature dénonçable.
En conclusion, le Gouvernement des Emirats arabes unis est d'avisque I'ac-
cord du 25 mars 195 1a étéconclu entre l'OMSet 1'Egyptepour déterminerles
privilèges,immunitéset facilitésaccordésen Egypte par le Gouvernement à
l'organisation, aux représentantsde ses membres, a ses experts et à ses fonc-

'Rapport de laConiniissiondudroirinrerriurionuslur les travuuxdesutrentunième
session.1979,p. 434.
Erude desuccordsde siègeconclusentrelesorguniFuriontnternutionulefles Etutou
elles résident,p. 389 et 390.tionnaires,orcetaccord n'estpasl'instrumentenvertuduquel leBureaurégional
pour la Méditerranée orientalea étCétabliet peut êtretransféré.
CeBureaua étéétabliparun acte unilatéralde l'OMS acceptépar IIEgypte,on
peut même direqu'il aététablipar un accordenformesimplifiéequis'estréalisé
en 1949,avec l'acceptation. par I'Egyptedc la décisionunilatéralede I'OMS.
Mais, de toute façon, la section 37 de l'accord du 25 mars 1951ne peut ppint
s'appliquerauxquestionsquecet accord ne réglepaset qui ont étrégléepsar un
accord antérieur.

Cette section 37 qui prévoitles conditions de la dénonciationde l'accorddu
25mars 1951nepeut certainement pass'appliqueriladénonciationdel'accord
antérieur de 1949 en vertu duquel le Bureau régionalpour la Méditerranée
orientale a étéétabli. WRITTEN STATEMENTOF THE GOVERNMENT

OF THE REPUBLIC OF IRAQ '

Pursuant to the resolution adopted by the World Health Assemblyon 20May
1980,the International Court of Justice has been requested for the advisory
opinion on Section 37ofthe agreementof 25 March 1951betweenthe WHOand
the Govemment of Egypt.
This request was put lorward in regard with Section37,Article 12,of the said
agreement, which reads as follows :

"The present Agreement may be revisedat the request ofeither party. In
this event the two parties shall consult each other concerning the modifi-
cations to be made in its provisions. If the negotiations do not result in
understanding within one year, the present Agreement rnaybe denounced
by either party giving two years'notice."

The Government of the Republic of Iraq will subrnit the following opin-
ion :

1. Our request from the WHO is to transfer its regional officeof the Eastem
Mediterranean from Alexandria - Egypt - to Amman - Jordan.
This request needs no explanations of Section 37 of Article 12of the agree-
ment of 25 March 195l ,between theWHO and the Government of Egypt. That
is because Section 37 cannot be applied to the choice of the site of the regional
office and the transfer of such site.
2. Our request to transfer the regional office is based on Article 44 of the
Constitution of the WHO. This article reads as follows :

"(a) The Heaith Assernblyshall frorn time to time define the geographical
areas in which it is desirable to establish a regional organization.
(b) The Health Assembly may, with the consent of the majonty of the
Members situated within each area so delined, establish a regional
organization to meet the special needsof sucharea. There shail not be
more than one regional organization in each area."

According to this article of the Constitution, the establishment ofregional
organization, including obviously the choice of its office cornes within the
jurisdiction of the World Health Organization.
It is in accordance with Article44 of the Constitution of the WHO, which
relates to the determination of geographical areas and the establishment of
regional organizations.
The regional office for the Eastern Mediterranean was established in Alex-
andria to make it easyfor the countries of the area. But now after Egypt being

boycottedby the countries of this area, the regionai office cannot function and
therefore it has been necessary to transfer the office to Jordan to carry on its
function and make the CO-operationpossible between the officeand the rest of
the countries in the region+

Arabic textreceivedin theRegistryon28 August 1980; Englishtext receivedin the
Registry on 18September 1980. [Note bythe Registry.] WRI~TEN STATEMENTOF IRAQ 149

The State of Egypt has no right to object against the request of moving the
regional officefrorn its territories and has no right to limit theauthorities of the
WHO given by Article 44.
3. The agreement of 25 March 1951between Egypt and the WHO did not
constitute placing the headquarters of the regional officefor the Eastem Medi-
terranean in Alexandria and has no right to decide that and cannot have a Say

about the transfer also.
And that isobviouslyclear ifwefollow closelythe studiesof the placing of the
regional office :
A. The WHO requested the Direcior-General in June 1949to carry on the
negotiations with the Egyptian Government for the purpose of determining the

pnvileges, immunities and facilities,granted in Egypt by theGovernment to the
WHO in the Eastern Mediterranean office and to submit a report of this nego-
tiation to the Third Assembly of the WHO. When such an agreement becarne
valid, the concerned govemment willbe called upon to grant the needed immu-
nities andprivileges.
By the Third Assembly the folIowing decision has been taken in
May 1950 :

"by letter of23March 1950,the State Adviser to the Ministries for Foreign
Affairs andJusticeof the Government ofEgyptnotified theOrganizationof
the acceptance of thedraft agreementconceming theprivileges,immunities
and facilitiesto be accorded to the World Health Organization in Egypt, in
particular with regard to the regional arrangements in the Eastem Medi-
terranean Area".

Therefore the Third Assembly approved the agreement with the Egyptian
Government to giveal1needed privileges,immunities and facilities to the orga-
nization, to the representatives of its members, to its experts and officials, in
particular with regard to its arrangements in the Eastern Mediterranean Region
and regulating other related matters.
B. Article 12of the agreement of 25 March 1951did not govem the choiceof
the headquarters and its transfer. The motive of the agreement, as stated in its

title:"for the purposes of determining the privileges,immunities and facilities"
granted in Egypt by the Government to the Organization, to the representatives
of iis members, to its experts and officials in particular with regard to its
arrangements inthe Eastern Mediterranean Region and regulating other related
matters.
C. A careful examination of the text of the agreement showsplainly that the
agreement isconcemed solelywith privileges,immunities and facilities.None of
theagreementprovisionsproviding for theestablishment of theregionalofficein
Alexandria and the transfer of such site has been decided upon.

4. The agreementof 25 March 1951did not decideto place the regionaloffice
in Alexandria. It is true that paragraph (v)of Section 1,concerning definitions,
mentions the regional office in Alexandria. This is however certainly not a
provision providing for the establishment, but merely a record of the fact that
that office was already in existence.

It is Article 44 of the Constitution of the WHO, which relates to the deter-
mination and the establishment of the regional organization.
The Government of Egypt, therefore accepted the establishment of the regio-
na1office on its territory in a later agreement between Egypt and the WHO.
It was in conformity with the constitution of the WHO that the site of the150 INTERPRETATIONOF AGREEMENT

regional office for thi Eastern Mediterranean was established. Egypt being a
mernber of that organization, must be deerned to know the scope of such
cornpetence, which its Constitution grants. Therefore such an agreement
betweenEgyptand the WHO toestablish theofficeor movingit,could naturaily
be decided upon according to the policy of the WHO and its Constitution.
This state of fact was confirmed by the International Law Commission in
Article 56 of its draft on treaties concluded between States and international
organizations or between two or more international organizations :

"Treaties between one or more States and one or more international
organizations include a classof treaties, which although having no denun-
ciation clause, seern to be denounceable : the headquarters agreements
concluded between a State and an oraanization. For an international orga-
nization, the choice of its headquaiers (siège)represents a right whose

exerciseis not normallv immobilized : moreover. thesmooth overation of a
headquarters agreementpresupposes relationsof aspecialkind'betweenthe
organization and the host State, whichcannot be maintained by the willof
one party only l."
5. Ashasbeen statedinparagraph 4,wecondude, thattheGovernment ofthe

Republic of Iraq is of the opinion that the agreement of 25 March 1951con-
cluded between the World Health Organization and the Government of Egypt
was mainly for the purpose of determining the privileges,immunities and facili-
ties and this agreement is not the instrument by virtue of which the Regional
Office for the Eastern Mediterranean was set up and can be transferred and
Section 37 of Article 12of the agreement of 25March 195 1 cannot apply to the
questions concerned.

' Report ofthe Tnternationa/ Law Commission on the WorkofIts Thirty-firrt Session,
1979,p. 434. WRITTEN STATEMENTOF THE STATEOF
KUWAIT '

28August 1980.

On20 May 1980the World Heaith Assembly adopted resolution WHA33.16,
in pursuance of Article 96, paragraph 2, of the United Nations Charter, of
Article 76 of the Constitution of the World Health Organization and of Arti-
cleX, paragraph 2, of the agreement between theUnited Nations Organization
and theWorld Health Organization, wherebyit wasdecided to submit a request
to the International Court of Justice for its advisory opinion on the tollowing
questions :

" 1. Are the ncgotiation and notice provisionsof Section37of the Agrce-
ment of 25March 1951between theWorld Health Organization and Egypt
applicable inthe event lhat either party to theAgreementwishestohavethe
Regional Office transferred from the territory of Egypt?

2. If so,what wouldbe thelegalresponsibilitiesofboth theWorldHealth
Organization and Egypt, with regard to the Regional Office in Alexandria
during the two-year period between notice and termination of the Agree-
ment ?"

The matter liesin the interpretation of the teofanagreement :!%ciion37 of
the above-mentionedagreement.Theproblemresidesin thedetermination ofthe
exact scope of that section.
The observations of the Government of Kuwait will be limited to the possi-
bilitiesfor theWorld Health Organization to transfer itsRegionalOfficeoutside
the territory of Egypt. It ispreciselythisaspectwhichwasthedirectcause for the
request for an advisory opinion.
What is then the scope of Section 37 ?
That section reads as follows :

"The present Agreement may be revisedat the request ofeither party. In
this event the two parties shall consult each other concerning the modifi-
cations to be made in its provisions. If the negotiations do not result in an
understanding within one year. thepresent Agreement may be denounced
by cithcr party giving two years' notice."

This provision is not unique, a similar provision is to be found in the agrec-
ments that theWorld HealthOrganization hasconcluded withothcr States.such
as Denmark 2,the Philippines3 and Switzerland and which Egypt has eon-
cluded with other organizations such as the ICA0 s.

Ii is obvious that that section concerns the agreement of 25 March 1951 : it

Seciiond35ofhtheagreementsignedinGeneva. on 29Juner1955gand-inCopenhagen
on 7 July1955.
Section 35 ofthe agreementof 22 July 1951.
Article29 of the agreement between th ewiss FedfralCouncil and the WHO.
Section 37 ofthe agreementof 27 August 1953.152 INTERPRETATION OF AGREEMENT

deals precisely with the revision of the provisions of that agreement. It is
necessary therefore to know whether that agreement determines the choice of
the headquarters of the Regional Office and the transfer of those headquar-
ters.
TheGovernment ofKuwaitobservesthat theagreement dealswith neither of
those questions. ConsequentlySection37 cannot be appliedto them.
Indeed, according to its title, it is an agreement "for the purpose of detcr-
mining the privileges,immunities and facilities" granted in Egypt by the Gov-
ernment to theOrganization, to the representativesof itsmembers,toitsexperts

and officials.
The preamble confirms that reality :
"Desiring to conclude anagreement for the purposes of determining the

privileges. immunities and facilities to be granted by the Government of
Egypt to the World Health Organization, to the representatives of its
Members and to its experts and officials in particular with regard to its
arrangements in the Eastern Mediterranean Region, and of regulating the
other related matters. .."

The thorough examination of the text of the agreementshowsclearly that the
agreementdealsonly with theprivileges,immunitiesand facilities.No provision
determines thechoiceof headquarters. Tme.paragraph (v)ofArticle 1related to
definitions. mentions the Regional Officein Alexandria : "the words 'principal
or subsidiary organs'" ii reads, "shall be deemed to include the World Health
Assembly, theEXecutiveBoard, the Regional Cornmitteein the Eastern Medi-
terranean Region and any of the subdivisions of al1theseorgans as well as the
Secretariatand the RegionalOfficeinAlexandria." Butthiscertainly constitutes
a simple ascertainment that the office existed atready and not a provision
stipulating the establishment of the Office in Alexandria.

The Agreementof 25 March 1951must in anycasebe interpreted in the light
of theConstitution of theWorld Health Organization ;but itisdifficult to admit
that the World Health Organization, in signing an agreement to determine
the pnvileges, immunities and facilities to be granted to the Organization, to
the rcprcscntativesof itsmembers and to itsofficials,wishedtolimit thecompc-
tence entrusted by theConstitution to the World Health Assembly, with regard
to the choice of the headquarters of a regional office. The State which signs
such anagreement with the World Health Organization, especially whcn it is
a member of that Organiytion, is supposed to know the scope of that compe-
tence.
Nevertheless, the Eastern Mediterranean Rcgional Office existed before the

conclusion of theAgreementon 25 March 1951.It wasestablished inAlexandria
through a legal process before the signature of the Agreement.
It is Article44 of the Constitution of the World Health Organization that
concerns the determination of the geographicalrcgionsand the establishment of
Regional Organizations.
This article reads as follows:

"(u) TheHealth Assemblyshall from time to timedefine the geographi-
cal areas in which it is desirable to establish a regional organization.
(b) 'I'hcHealth Assembly may, with the consent of a majority of the
Mcmberssituated nithin each areaso dcfined, establish a regional organi-
zation to meet the special needsof such area. There shall not be more than
one regional organization in each area." WRITTEN STATEMENT OF KUWAIT 153

According to that article of the Constitution, the establishment of a regional
organization, including obviously the choice of the headquarters of its office,

corneswithin thejurisdiction of the World Health Assembly.
It is in accordance with the Constitution of the World Health Organization
that the headquarters of the Eastern Mediterranean RegionalOfficewereestab-
lished. In its resolution (WHAT.72)of July 1948,the World Health Assembly
delincated the geographical regions, including the Eastern Mediterranean
Region, and resolved that the Executive Board should be instructed

"1. tocstablishregionalorganizations in accordancewiththedelineation

of geographicalareasdecided upon and as soon as theconsent of a majority
of Members situatcd in such areas had been obtained. . .l"

The Regional Committee for the Eastern Mediterranean held its first session
in Cairo. from 7 to 10February 1949,and recommended the choiceof Alexan-
dria as the headquarters of the Eastern Mediterranean Regional Office. The
Executive Board examincd the report on that sessionand adopted its resolution

(ER3.R30) of March 1949whereby it :

"1. Conditionally approves the selectionof Alexandria as the sitéof the
Regional Office for the Eastern Mediterranean Area. this action being
subject to consultation with the United Nations :
2. Rrquests the Director-General to thank the Governrnent of Egypt for
its generous action in placing the site and buildings at Alexandria at the
disposa1 of the Organization for a period of nine years at a nominal rate of

10 piastres a year ;
3. Approves the establishment of the Regional Office for the Eastern
Mediterranean Area, operations to commence on or about 1July 1949 ;
4. Approves theresolutionof the RegionalCommittee that 'thefunctions
of the Alexandria Sanitary Bureau be integrated within thosc of the Re-
gional Organization of the World Health Organization' 2."

Thus, the Committee was created and the Office established in 1949. In fact,

the Officcstarted to operate in 1949,wellbefore thesignature on 25 March 1951
of the Agreement on privileges, immunities and facilities.. .
Therefore, it is through a unilateral action of the competent organs of the
World Health Organization, in conforrnity with the Constitution of that Orga-
nization, that the headquarters of the Eastern Mediterranean Regional Office
weredetermined. Tobeapplicable toEgypt,that actionhad to beacceptedby the
latter. Rut this acceptation entails neither chaaging the legaistatus of the action

nor making the transfer of the headquarters depend on the wishesof Egypt.And
this is understandable. Egypt is supposed to know, by accepting that unilateral
action, lhat the determination of the headquarters of a regional organization is,
according to the World Health Organization Constitution. within the compe-
tence of the World Health Assembly.It caneven be accepted that the detcrmi-
nation of the headquarters hasbeenobtained byagreement.The Statcchoscn for
the location of the headquarters concludes, by accepting the decision of the '

-
'Resolurions undDecisions ofthe WorldHeuhhAssenibly undofthe ExecuriveBourd,
Vol. 1. 1948-1972.p. 315.
Ibid. p. 332.154 INTERPREïATION OF AGREEMENT

quarters of the Eastern Mediterranean Regional Office were established in
Alexandria through an agreementderivingfromtheacceptation, by Egypt.of the
decision of the competent organs of the World Health Organization. That
agreementiscertainlynot theonesignedon25 March 1951but anagreementin a
simplified form that contains no provision concerning its denunciation. Well,

according tointernational law, "a treaty whichcontains no provision regarding
its termination and which does not provide for denunciation or withdrawal
unIess it is established that the parties intended to admit the possibility of
denunciation or withdrawal or a right of denunciation or withdrawal may be
impfied by the nature of the treaty".
ItisArticle 56of theViennaConventionon thelawof treatiesthat definesthat
rule which the International LawCommission confirmed rccently in Article 56

of itsdraft on treatiesconcludcd betweenStatesand international organizations
or betwecn two or more international organizaiions.
Furthermore. the International Law Commission, in its cornmentary on that
article. quotes as a rypical example where the right of denunciation can be
implied by the nature of the treaty, the headquarters agreements.

"Treaties between one or more States and one or more international
organizations include a classof treaties which, although having no denun-

ciation clause, seem to be denounceable : the headquarters agreements
concluded bctwecn a State and an organization. For an international orga-
nization, the choiceof its headquarters represents a rightwhoseexcrciseis
not normallyimmobilized ;moreover,thesmooth operation of a headquar-
ters agreement presupposes relations of a spccialkind bctwecn the organi-
zation and the host State, which cannot bc maintaincd by the will of one
party only 1."

The doctrine has already been very clear in this respect.

According to Mr. Philippe Cahier, certain headquarters agreements do not
provide for thedenunciation of the agreement.The possibilityof denunciation is
only unilateral, ihat is,it is the organization which isentitled to this right that it
can useby changingitsheadquarters, but that thcStatcitselfcouldnot doit.This
rule applies also to the headquarters agreement between Unesco and France
wfüch does not provide either for the denunciation of the changing of head-
quarters, since an organization must alwaysbe free to displace its headquarters
as it wishcs.

In conclusion. theGovernment ofKuwaitisof theopinion that theAgreement
of25 March 195 1wassigned betweentheWorld Health Organization and Egypt
to deterrnine the privileges,immunities and lacilitics grantcd in Egypt, by the
Government to the Organization, to the representatives of its mernbers, to its
expertsand officiais : that agreementisnot an instrument according towhich the
Eastern Mediterranean Regional Office was esrablished and may be trans-
ferred.
This office was established through a unilateral action of the World Health
Organization, acccpted by Egypt. It can be said that it wis established by an

agreement in a simplified form carried out in 1949,with the acceptation, by
Egypi. of ihc uniiateral decisionof the World WealthOrganization. Rut in any
case, Section37 of the Agreement of 25 March 1951cannot apply to the ques-

1 Report rfrhe Inrer~iotioLuw Commission on the Work (4Irs Thirty-first Session,
1979,p. 436. WRI~EN STATEMENT OF KUWAIT 155

tionsthatthat Agreementdoes not regulateandwhichhavebeenrcgulatedbya

previous agreement.
ThatSection37,whichprovidesfortheconditionsof thedenunciationof the
Agreement of25 March195 1.maycertainlynotapplytothedenunciationofthe
previous agrcemeniof 1949 in pursuanceof which ihe EasiernMçdiierrancan
Regional Office was established. WRITTEN STATEMENT OF THE GOVERNMENT

OF EGYPT '

1.On 20 May 1980,the World Health Assembly adopted the followingreso-
lution:

"The Thirty-third World Health Assembly,

Having regard to proposals which have been made to remove from
Alexandria the Regional Office for the Eastern Mediterranean Region of
the World Health Organization,
Takingnote of the diffenng views which have been expressed in the
World Health Assembly on the question of whether the Wmld Health
Organization may transfer the Regional Office without regard to the pro-
visions of Section 37 of the Agreement between the WorldHeaith Organi-
zation and Egypt of 25 March 1951,
Notingfurtherthat the Working Group of the ExecutiveBoard has been
unable to make a judgment or a recommendation on the applicability of
Section 37 of this Agreement,

Decides,prior to taking any decision on rernovalof the Regional Office,
and pursuant to Article 76 of the Constitution of the World Health Orga-
nization andArticle X of the Agreement between the United Nations and
the World Health Organization approved by the General Assembly of the
United Nationson 15November 1947,to submit to the International Court
of Justice for iAdvisory Opinion the followingquestions :

1. Are the negotiation and notice provisions of Section 37 of the
Agreement of 25 March 1951between the World Mealth Organization
and Egypt applicable in the event that either party to the Agreement
wishes to have'the Regional Office transferred from the territory of
Egypt ?
2. If so, what would be the legal responsibilities of both the World
Health Organization and Egypt, with regard to the Regional Office in
Alexandria, during the two-year period between noticeand termination
of the Agreement ?"

2. These areeminently legalquestions involvingtheinterpretation and appli-
cation of an agreement betweenthe requesting International Organizationand a
member State in relation to the regional activitiesof the Organization. They fa11

squarely withîn the ambit of the Court's advisory jurisdiction,as defined in
Articles 96 of the United Nations Charter and 65 of the Statute of the Interna-
tional Court of Justice.
3.Asmentioned inits prearnbular paragraphs, this resolution was adopted in
the context of acontroversy within the World Health Assembly over theoppor-

'Receivedin the Registryon 29 August 1980.(Note by theRegistty.]
WHA33.16. WRI'ïïEN STATEMENTOF EGYPT 157

tunity and the legal feasibilityof an immediate transfer from Alexandria of the
WHO RegionalOfficefor theEastern Mediterranean, notwithstanding the 1951 .
Host Agreement between Egypt and the WHO, and more particularly the pro-
visions of Section 37 of the said Agreement.
4. Throughout the debates, there fiasbeen a general admission, even on the
part of thosewhowereadvocating the transfer, that Egypthas alwaysfulfilledits
obligations under the Agreement scnipulously and faithfully '.

The transfer proposd has thus nothing to do with Egypt'sobservance and
irnplementation of its obligations under the Agreement or as a member of the
WHO. Nor indeed has it beenjustified on economic or technicalgrounds. And
being a highly politicai proposal, not much ernphasis was put on its legaljus-
tification either.
5. To the extent that they can be ascertained, the arguments in favour of the
legalfeasibilityofan immediate transîer of the RegionalOfficefrom Alexandria
without regard ta the provisions of Section 37 of the 1951Agreement, can be
formulated as follows :

Thc 1951 Agreement between the WHO and Egypt is not a headquarters
agreement for the WHO Regionai Office for the Eastern Mediterranean at
Alexandria, but an agreement on the privilegesand immunitiesof the WHO in

Egypt in general. In consequence, the transfer of the Regional Office from
Alexandria does not concern nor affect that Agreement, and cannot be con-
sidered as either a revisionor a denunciation of it;which isanother way to say
that Section 37 is not applicable to such a transfer.

6. In what followsit is argued :

- that the 1951Agreement is a headquarters agreement ;
- that it iaheadquarters agreement for the WHO Regional Officeat Alexan-
dria;
- and that, in consequence, Section37 of the Agreement is fully applicable to
any transfer of the Regional Office from Egypt.

1.THE AGREEMENTOF 25 MARCH 1951 BETWEENTHE WHO AND

EGYPT IS A HEADQUARTERS AGREEMENT

7. The 195 1Agreement is not a rnereagreementon the privilegesand immu-
nities of the WHOin Egypt in general,bu1is a real headquarters agreement for
the Regional Office for the Eastern Mediterranean at Alexandria.
While one should not exaggerate the difference between a headquarters
agreement and a privilegesand immunities agreement betweena State and an
International Organization, this difference docs cxist.

8. Headquarters agreements are defined by,Philippe Cahier in his Erudedes
accords de siègecoiiclusentrelesorgunisuiionsinterizaiionaleselles Etals06 elles

Committecth8,r14thmeeting, 24 Maydi1979a:t),WHO, OfficialRecords, 32ndWHA.

"he ihoughthe wouldbe expressing the feelingosf the delegationsofal1Arab
countriesif he assured the Egyptiandelegation of their appreciationof the
role Egypthad playedas host tothe RegionalOffice for the EasternMediter-
ranean".158 INTI<RPRI<TATION OF AGREEMENT

résident '(the only full monographic treatment of the subject in the light of
post-war practice *)as follows :

"des accordsconclusentre uneorganisationinternationale et un Etatdans
lebutd'établirlestatutdeceiteorganiso aùtlleasoannsil'eett at
dedélimiterlesprivilègesetimmunitésquiluiseront accordésainsiqu'hses
fonctionnaires J".

9. Rut if a headquarters agreement regulates the status of the Organization
and itsprivilegesand immunities as wellas those of its staff in the host State, a
privilegesand immunitiesagreementalsodoes the same.Thediffcrencebctween
the two is not in kind but rathcr in degree,and relates to the specificpurpose of
the treaty in each case.

10. A privilegesand immunities agreement is formulated for the purpose of
regulating the activities of the Organization in any State. howevcr limitcd or
episodicthey maybe. Bycontrast, a headquarters agreement iscalled [or by the
existenceof a permanent centre of activitiesof the Organization in the contract-
ing State and thus purports to regulate activitieswhichare more ample in scope
and more permanent in time. The regulation is usuallymore detailed and takes
specificallyinto consideration somc aspects of the physical presenceof the seat
of the Organization on the territory of the State. But even these are usually
aspects having to do with the privileges,imrnunitiesand facilitiesgranted to the

Organization. They do not includeother questions ofdetail, such as the rent or
cession of the premises put at the disposa1of the Organization. which are
generallydealtwith inseparate agreementsorcontracts not necessarilygovcrncd
by international law.
11. The diffcrencebetweenthetwo typesof agreementsisnotthen a matter of
mere nomenclature, but or substance. They can thus be distinguished by ana-
lysing their content and in case of doubt by resorting to the common intention
and understanding of the Parties.

12. Asfar asnomenclature isconcerned,noneof theheadquarters agreements
concluded by the WHO, including the agreement with Switzerland where the
central seat of the WHO is located, has been labelled "headquartcrs agree-
ment".
Indeed. the agreementsthemselvesdo not carryanylabelat all,but theyareal1
referred to. during the negotiations and in the WHO official documents. as
"Host-Agreements" ;and in French, significantly.as "accords de sikge".which
is dso the translation of "headquarters agreements" 4.

MG, Giuffrè, 1959.
C. W. Jenks'Iittlbook The //~adquurrersof InrernaiionafInslifurio:A Sludy of
TheirLocarionaridSturrrs(R1IA.London, 1945).was writtenbeforetheend of thewaras
aprospectivestudy of possible future solutiona,ndcame out in favourof thecreation
ofinternationalizedarcasfor the locationof headquartersof internationalorganiza-
lions: a solutionwhich was not followedin the post-war practice.
Op. cil.p.1.SeealsoK.Ahluwalia, The LegulSraitu, Privilegesaird Inrniunitiesof
the Speciulized Agencies of rhe United Nariam andCertain Other InternurionalOrprii-
zations(Ni~hoffT. he Naguc, 1964),p. 51,n. 13 :
"the agreemeni concluded between the internationalorganizdlion and the host
State ahich definesthe privilegesand immunities to beenjoyedby thcinterna-
tionalorganizationsin theterritoryof the hostState. ..".
' See Haiidbook of Resolutionsand Decisicm of rheWorid Health Asseniblyand the
ExecuriveBoard, Vol. 1, 1948-1972(1973).pp. 356 ff.(6.3.2.). WRI'ITENSTATEMENTOF EGYPT 159

13. The first such agrcement wasthe one concluded with Switzerlandin 1946
(though coming into force later on). After the decision of the Second Wodd
Health Assembly in 1949. upon the recommendation of the Committcc on
Headquarters and RegionalOrganization, to establish. in accordancervithArti-
cle44 of the WHO Constitution. six regionalorganizations (whicharc in fact as
in law not separatc organizations. but regional organs of the WHO. similar in
some respects tothe United Nations regionalEconomicCommissions).the need
arose for special headquarters agreements with the host States of these regional
organizations(eachcomposed of a Cnmmitteeand an Office : i tisthc scat of the

Office which constitutcs the Headquarters of the Regional Organization).
14. Clearly. a mere privilegesand immunjties agreement was not considered
sufficient for this purpose, For, in relation to the twroregional organizations
whose establishment wasimmcdiatelyenvisagcd,thc RcgionalOrganization for
South-East Asia to be located in New Delhi, India, and the WHO Eastern
Meditcrrancan Organization inAlexandria,Egypt, the ExecutiveBoard(for the
former) and the Sccond World Health Assembly (for the latter) rcquested the
Director-Cicneralof thc WHO to continue negotiations with a viewto reaching
an agreement with the host State ;and significantly added :

"Pending coming-into-force of such agreement. the Govcrnment was
invited toextend to the Regional Organization the privilegesand immuni-
lies set out in the Convention on the Privileges and Immunitics or the
Spccialized Agencics. .. '"

15. This attitude clearly reveals that the governingbodies of the WHOcon-
sideredthat theagreement tobenegoliated withthe hostcountries ismorethan a
mere privileges and immunities agreement :otherwise it nould have bcen sim-
pler and morc expeditious to request the host countries mcrely to accede to the
Convention on the Privilegesand Immunitiesof the Specialized Agencies(which

Egypt did in anycase), rathcr than implementitonly asan interimsolution until
a morc adequate agreement is reached.
On the oiher hand. such agreements were sought and concluded only with
those Stateswhich rcceivcdon thcir territories theofficesof WHO specializcdor
regional organizations, which rnakes it abundantly clear that they wrre agree-
ments specifiçallyconcluded in contemplation of these specialized or regional
officesof the WHO ;in other words that theywercconsideredby the WHO and
the host States as hcadquartcrs agreements.
16. In 1948,the WHOprepared a model draft "host agreement" 2,hcavily
inspiredby lheWHO-Switzerland Agreement,toserve asabasis fornegotiations

with host governments :it wasfollowed,withsome modifications, in the WHO-
EgypcAgrccment of 1951.In viewof its origin, the contents of this draft "host
agreement" mustbe assumed ascorresponding to the needsand purposes of the
WHO Regional Offices.
The preamble of thedraît "host agreement" speaksof "Privilegcs,immunities
and fucilit.i .e..sTO what extent da these facilitics go bcyond or add ta the
privilegcsand immunities?The answer to thisquestion willbccomeapparent in
the light of the analysisof the content of the WHO-Egypt Agreement.

17. As there is no gcncrally accepted model of headquartcrs agreement to
serve as a standard of reference in a serious "content analysis" of theWHO-

See ~IutidhaokofResolutionsand Decisions of the WorkdfletiAssenrh(vund ihe
E.recutivRnurd.Vol. 1. 1948-1972 (1973)pp. 356 ff. (6.3.2.).
2EMR/ERWG/3, p.12 [notreproduced] and Annex F [seepp.9J-100, supra].160 INTERPRETATION OF AGREEMENT

Egypt Agreement, the next best standard cornparisonis the WHO-Switzerland
Agreementconceming the Central Headquarters of theWHO in Geneva,whose
character as aheadquarters agreement cannot be put in doubt.
A careful analysisof thecontent of the twoagreementsrevealsa near identity
between them in the sense that every specific subject or item treated in the

WHO-Switzerland Agreement is also treated in the WHO-Egypt Agreement,
whichmoreoveradoptsin thelargemajority ofcasesthesamesolutionsand even
the same wording ; subject to the Eollowingexceptions :

(i) There is a difference in form arising largelyfrom the factthat the WHO-
Switzerland Agreement is composed of two instruments (the Agreement itself
and the Arrangement for Execution), while the WHO-Egypt Agreement is
drafted as one integrated instrument. Moreover, the items are not always
included in the same place or order. But this difference does not affect the
substance.
(ii) There is a provision conceming the continued applicability of former
arrangements between the Leagueof Nations and Switzerland (Article20of the

Agreement), obviously referringto a specifichistorical situation, which has no
parallel in the WHO-EgyptAgreement.
(iii) But perhaps the most significantomission in the latter agreement,is that
it bears no parallel provision to Article4 of the WHO-Switzerland Agreement
which provides :

"The SwissFederal Councilrecognizestheex-territonality of thegrounds
and buildings of the World Health Organization and of ail buildings occu-
pied by it in connection with meetingsof the World Health Organization or
any other meeting convenedin Switzerlandby the World Health Organi-
zation."

Twoobservations shouldbemade on this provision,however.The first is that
thisprovision deaiswith privilegesand immunities.Indeed, "ex-territoriality" is
used here in the senseof the old legal theory explaining the basis of diplomatic

privilegesand immunities.Thistheoryhasbeenveryheavilycnticizedand isnow
generally rejected1,
Moreover, and this isthe secondobservation, one cannot but accept Cahier's
conclusion that such clauses are redundant ("font double emploi" 2) because
they add nothing to the provisions of the Agreement whichdefine the privileges
and immunities enjoyed by the Organization j.
In other words, a general clause of ex-terntoriality is both objectionable in
theory and useless in practice ; which goes a long way to explain why it has

SeeCahier, op. cit.pp. 193-195.
Ibid.p. 234.
theWHO-EgyptarnpAgreement,whichprovideseeme:t,andsimilarlySections 6 and 7of

"Section 6 (1).The premisesof theOrganization in Egypl or any premises in
Egypt occupied by the Organizationin connectionwitha meetingof the Organi-
zationshallbe inviolable.
(2) Such premisesandthe property and assetsoftheOrganization in Egyptshall
be immune fromsearch,requisition, confiscation, expropriatio ;nand any other
form of interference, whethe ry executive, administrativj,dicialor legislative
action.
Section7. The archivesof the Organization, and in gencraall1documents
belongingto itor heldby it in Egyptshallbe inviolable." WRITTEN STATEMENT OF EGYPT 161

rernained an oddity rarely encountered in other headquarters agreements rind
most probably why it was not retained in the draft host agreement, and the
subsequent host agreements for regional offices,including the one between the
WHO and Egypt.
18. The above cornparison warrants the conclusion that ihe WHO-Egypt
Agreement materially covers a11the questions regulated in the WHO-Switzer-

land Agreement. But the reverseis not true.
Tndeed.the WHO-Egypt Agreement contains certain provisions which have
no parallcl in the carlier Agreement, and which make it'ven more"headquar-
ters-centred" than the WHO-Switzerland Agreement.
Thus. Section 30 (1) provides :

"The Organization will besupplied, in thepremisesplacedat its disposal,
withelectricity,water and gas,and with servicefor the rcmovalof refuse.In
acaseof forcemajeureentailingpartial or total suspensionof theseservices,
the requirements of theOrganization willbe considered by theGovernment
of Egypt to be of the same importance as those of its own administra-
tions."

These are matcrial, and not merely legal,facilitiesand services whichpresup-
pose the existence of,and can only be provided in connection with,a permanent

site serving as a seat of on-going activities by the Organization.
In the snme vein, Section 30 (2) provides:

"The Government of Egypt willensure the necessarypolicesupervision
for the protection of the seatof theOrganizationand forthe maintenanceof
order in the immediate vicinity thereof. At the request of the Director-
General, the Government of Egypt willsupply such police forceas may be
necessary to maintain order within the building."

This provision is sufficiently explicit in its language and its rcference to the
"seat of the Organization" as not to cal1for any further comment.
19. Finally, the travaux préparatoiresclearlyrevealthat the Partiesdid intend
to conclude a "headquarters agreement", and not mcrely a privilegcs and
immunities agreement:

Suffice it to mention here, on the part of the WHO, the declaration of
Mr. Antoine Zarb, representingthe Secretariat(subsequentlylegal adviscrof the
WHO), in the course of the discussion of the agreement in the Legal sub-
cornmitteeof the Committee on administration, finance and legalmatters of the
Fourth World Health Assembly :

"Asked by the Chairman to explain the background of the situation,
Mr. Zarb, Secretary, said that the proposed agreement between the Egyp-
tian Governrnentand WHO,whichhad been unanimouslyapproved by the
Third World Health Assemblyon 19May 1950(resolution WWA3.83), was
sirnilar to that signed between WHO and the Government of India and

similar in content if not in form to that concluded betweenWHO and the
Government of Switzerland l."

Commenting on some of the modifications requested by Egypt, he later
added :

'WHO. Ofliciul Recorcis.No.35, Fourfh World .Velea/hssemhfy, pp.3 13fi. INTERPRETATIONOF AGREEMENT

"The neaotiations. which had been carned out in a spirit of mutual
comprehen;ion, had resulted in the Egyptian ~overnment's agreeing to
wi-~draw al1basicmodifications andto retain onlycertain modifications in
form, of which the most important was the replacement of certain provi-
sions in the Agreement between the Egyptian Government and WHO by
corresponding provisions in theAgreementbetween the SwissGovernment

and WHO, the latter being more explicit '.. ."
The same intention comesout clearlyon the Egyptian side. ascan be revealed

by the commentanes of the Egyptian Conseil d'Etat on the draft agreement,
which revealthat most of their counter-proposals were inspired by other head-
quarters agreements such as the Agreement between Unesco and France and
WHO and Switzerland *;and by theparliarnentarydebateson theratification of
the Agreement, which will be discussed in the following section.
Thisbrings out clearlythe fundamental identity of naturc which existedin the
minds of the negotiators, between the WHO-Switzerland Agrecmcnt and the
WHO-Egypt Agreement.

2. THE AGREEMENT OF 25 MARCH 1951 BETWEEN THE WHO
AND EGYPT IS A HEADQUARTERSAGREEMENTFOR THE WHO
REClONAL OFFICE FOR THE EASTERN MEDITERRANEAN AT
ALEXANDRIA

20. Asmcntioned above,the fact that "host agreements" wcreconcluded with
al1theStates,but only with thoseStateswhichhad on their territories regionalor
specialized offices (or "organizations"of the WHO, is a sufficient proof that
theseagreementswcreconcluded in contemplation of theexistenceof the offices
in those Statesand for the purposes of regulating the modalities of their func-
tioning therein. In other words, the agreement has as its ru~iorruleits raison
d'Dtre.the existenceof the Regional Office at Alexandna.
21. The Agreementitself - thoughitdoesnot provide expressisverhithat it is

a headquarters agreementfor the RegionalOfficefor the Eastern Mediterranean
Region at Alexandna - abounds with indications to that effect.
Thus the Preamble describes the intent of the Agreement as follows :
"Desiring to conclude an agreement for the purpose of determining the

pnvileges, immunities and Facilitiesto be granted by the Government of
Egypt to the World Health Organization, to the representativcs of its
Mcmbers and to its experts and officials in particular aith regard to its
arrangements in the Eastern Mediterranean Region,and of regulatingother
related matters."

Again, Article I(v)delines the terrn "principal and subsidiary organs" as
including
"the World Healih Assembiy,the ExecutiveBoard, the Regional Commit-

tee in the Eastern Mediterranean Region and any of the subdivisionsof al1
thcseorgans as wellas theSecretoriutand theRegionul Officein AIc.~uridriu"
(emphasis added).

' WHO. OfJiciR alcords.NO. 35,Fourrh World IiealtAssenih<i.pp. 313ff.
2 Text dcpositedwith theRegisty. [Notreproduced.] . WRllTEN STATEMENT OF EGYPT

Article JX, Section 30 (2), speaks of

"the necessary policesupervision for theprotection of theseur of theOrgu-
nizution and for the maintenanceof order inthe immediatevicinitythereof"
(emphasis added).

Section 6 (1)byreferring iothe"premises ol theOrganization in Egypt orany
premisesin Egypt occupied by the Organization in connection witha meetingof
the Organization", clearlydistinguishesbetween themain permanent seat of the
Organization in Egypt, and other premises which may be occasionally used for
meetings.
References to the "Regional Director in Egypi and his Deputy" (Section25).
to thepremises of theOrganization in Egypt(Sections 6 and 30)and to meetings
and conferences in Egypt (Sections6 and 19)imply as much.
22. All these refcrenccsclcarly indicate that the purpose of the Agreement is

not to regulate theactiviticsof theOrganization in Egyptin gencral,but basically
the activitiesof the Regional Office in Alexandria. In other words, it is impos-
sible to undcrstand and give effectto theAgreementif one makesabstraction of
the existence of this Regional Office.
23. This is further corroborated by the manifest intention and common
understanding of the Parties at the time of negotiating and concluding the
Agreement.
24. As far as Egypt isconcerned, sufficeit to mention here the followingtwo
significant indications.

(i) In the course of negotiations, Dr. Waheed Radat, Conseillerd'Etat at the
State Council (the instance which acts aslegal adviser to the Governmcnt)
concludes a letter addressed to the Director of the Regional Officeof WHO for
the Eastern Mediterranean with the followingsentence :

"1hope that the Host Agreementbetween the Egyptian Government and
the World Health Organization will be signed in the near future,in order
that theprivileges, ininiu~iitiesotidfucilities ofthe Regionul HeulthOfficefor
the EusternMediierrutieunmaybe finallydeterrnined in respectofEgypiian
law.. .

Clearly, in the minds of the legal advisers of the Egyptian Governrnent,
the Agreement was dirccted at the Regional Health Office, not the WHO in
general.
(ii) During the Egyptian Parliamentary debate on the ratification of the
Agreement (and in answering the criticism of several Representatives of the
Agreement as reintroducing in favour of the Organization, in the form of

privileges and immunities, someihing reminiscent of the abolished "capitula-
tions" system) theMinister of Foreign Affairs stated :
"When these [Spccialized]Agcnciessuch as FAO, WHO, etc.. . .open
offices in any country, they request that the country grants privilegesand

immunities similar to those granted to the United Nations Organization
itsel. . .

It should be known thai many countries are endeavouring rotransferthe

' Emphasisadded. Letterof23 March 1950, the translationof whichis deposited
with theRegistry.[Sep pp. 171-172,infra.]164 INTERPRETATION OF AGREEMENT

WHO Regional Office for the Mediterranean to them. In al1cases, the
pnvileges and immunities which the Agreement grants are simple and
restricted to enabiing the Office carrying out its mission in complete free-
dom, and cannot be compared to the former Foreigncapitulations l."

Thisbringsout clearlythecausal relation,intheunderstanding of the Minister
for Foreinn Affairs between the existenceof the Renional Officeat Alexandria
and the Agreement. Infact, the declaration clearly Gveals that for the Egyptian
Government, the existence of the Regional Office in Alexandria is the con-
sideration (le motif déterminant) against which Egypt accepted to grant the
privileges, immunities and facilities provided for in the Agreement.

25. Asfar asthe WHO isconcerned, it sufficesto recallhere another declara-
tion by Mr. Zarb during the samediscussions fiom whichhewasquoted above :
"the Secretary stressed the fact that the Egyptian Government had so far
shown a large measure of understanding and had in fact accorded the

Organization mostofthefacilitiesnecessaryfortheproper functioningof the
regional office at Alexandna. However, although the Organization thus
enjoyed the mostcourteous treatment, it wouldbehighlydesirable for such
treatment to be accorded dejure and not only defacto *".

Here again it is evident that to the WHO negotiators, the focal point of the
Agreement was the Regional Officeat Alexandria, and its basic purpose was to
provide a legal basis for the facilities already provided by the Egyptian Gov-
emment for the proper functioning of that Regional Office.
26. The travauxpréparatoirese,specially the debates in the Legal Sub-Com-
mittee,aredsoveryrevelatoryof theattitude andtheexpectationsof the Partiesas
regards the Agreement in general.
During thesamesessionin whichMr. Zarb made thedeclaration quoted in the

preceding paragraph, Dr. Hashem, the Egyptian Representative, stated that :
"His Government was veryhappy to have a WHO officeon its territory
and would lose no opportunity of sening it. Nevertheless, when itcame to
formulating a long-term agreement, the Egyptian Government had to

become cautious . ..3"
1tisclear from these convergingstatements that whilefrom thebeginning the
relations between the Parties have been very cordial, and while the Regional
Officecameintobeingandwasaccorded bytheEgyptianGovernmental1thelegal

and materialfacilitiesnecessaryforitsproper functioningwithout any agreement,
botb Parties stillwanted to base their relationson a solidlegalfoundation in the
formoftheAgreement,with aviewtoachievingmaximumstability andsecunty in
these relations.
Theirsubsequent practice, which wascharacterized byscrupulousand faithful
observance, and even iiberal implementation of the Agreement on the part of
Egypt, contributed to the developrnent of the "good-faith legal régimeof the

Regional Office, which started before the Agreement was incamated in it,and
fully materialized through its liberal implementation.

' Houseof Representatives,Oflici Roelord O/the Thirty-thirSession,Monday,
25Junc 1951,pp.26-27.A copy and translation aredepositwith theRegistry.[See
pp. 173-181infra.]
WHO, Oflici Recordr,No. 35, FourthWorld Health Assembly,p.315.
Ibid.p,.314. WRI~EN STATEMENTOF EGYPT 165

It goes against the spirit and very essenceof this "good-faith" legal régime,
whichstructures theexpectationsof thePartiesand providesthemwith aframeof
referencefor their mutual reliance,toadmit, after over30yearsofconsolidation,
stability and loyal implementation,the possibility of suddenly bringing it to an
end, by theunilateral actofoneof thePartiesonly, withoutgivingtheother Party
any advance warning or period for adjustment.
This "good-faith" legal régime which constitutes the legalenvironment which
presides over the relations of the Partiein general, cannot but condition the
interpretation of the specificprovisions of theAgreement,including the denun-
ciation clause in Section 37.

3. SECITON 37 OF THE 1951AGREEMENTIS APPLICABI,E IN
CASE OF TRANSFEROF THE REGIONALOFFICE FROM EGYPT

27. From the conclusion that the 1951Agreement between the WHO and
Egypt is a headquarters agreement for the Regional Office for the Eastern
Mediterranean at Alexandria, it follows that a transfer of this Regional Office
wouldçtrikeattheheartand raisond'êtreoftheAgreementandwouldconstitutea
denunciation of it, by depriving it of its subject-mattel.
28. Can a contracting international organization unilaterally denounce a

headquarters agreement to which it is a party ?
The LegalAdviserof the WHO ishisstatement before thethirty-third World
Health Assembly referred,in this context, 10the Commentary of the ILCon
Article 56 of the Draft Articles on Treaties Concluded between States and
International Organizations or BetweenTwo or More International Organiza-
tions.
Draft Article 56,whichisentitled "Denunciation ofwithdrawal from a treaty
containing no provision regarding termination, denunciation or withdrawal",
provides :

"1. A treaty which contains no provision regarding its termination and
which does not provide for denunciation or withdrawal is not subject to
denunciation or withdrawal unless : (a)it is established that the parties
intended to admit the possibility of denunciation or withdrawal ;or (h) a
right of denunciation or withdrawal may be implied by the nature of the
treaty.
2. A party shallgivenolessthan twelvemonths'noticeof itsintention to

denounce or withdraw frorn a treaty under paragraph 1 ."
In its Commentary on this drdt article, the Commission givesheadquarters
agreements as an exampleof acategoryof treaties which"seem to be denounce-
able", or in other words 3s falling under the exception provided for in para-
graph 1(6) of the articl'.

Evenifwedonot acceptthisobviousconclusion,thetransfeorftheRegionalOffice
fromAlexandriawouldat leastnecessitatetherevisionofthosepartsoftheAgreement
whichreferspecificallytotheRegionalOffice inAlexandria (Sectioni(v)),theseatof
the Organization(Section30). the RegionalDirectorin Egypt (Section25).etc.and
whichwould becornewithout object ; it would thus still lall within theambit of
Section 37of theAgreement.
GAOR,epoThirty-fourthSession,Suppl.No.s10(A/34/w 10)(1979).sThirty-firstSession,166 INTERPRETATION OF AGREEMENT

In this respect, two important points have to be noted :

(i) The draft article applies only to treaties which contain no provision on
termination,denunciation orwithdrawal ;or,in other words,theabsenceofsuch
a provision is the condiriosine qua non for the application of the draft article.
Thus,evenifweassumethat thisdraft articlereflectsgeneralinternational law
and, consequently, that it is immediately applicable, and if weaccept urguendo
that headquarters agreements are,bynature, denounceable, still the articlewill
not be applicablc to the 1951Agreement betweenthe WHO and Egypt, as this
agreement contains a denunciation clause, namely Section 37.

(ii) Evenincaseswhere the articlewouldbe applicable,it wouldnot empower
theorganization todenounce atreatywithoutnoticeand withimmediatceffect. A
minimum 12months'noticeisrequiredbyparagraph 2of thearticle ;whichgoes
to showthat even where subjective(para. 1a) or objective(para. 1b)conditions
allow for denunciation, the security and stability of Iegal relations and the
protection of legitimate cxpectations cannot be discounted and impose certain
limitations on the exerciseof this faculty.

29. The clear conclusion, then, is that if the WHO wants to denounce the
1951Agreement, by transferring the Regional Office from Egypt, it has to
proceed according to Section 37 which provides :

"The present Agreementrnaybe revisedat the requestof eitherparty. In
this event the two parties shall consult each other concerning the modifi-
cations tobe made in ils provisions. If the negotiations do not result in an
understandingwithinone year,thepresentAgreementmaybedenouncedby
either party giving two years' notice."

30. It could be argued, however, that Section37 is not a denunciation but a
revisionclause.Itwouldapplyexclusivelytocasesofdenunciation subsequent to
failure to reach agreement on certain demands for revision, but not

"toasituationinwhichoneof the partiesis notseekingtomakechanges tothe
existing arrangements between an agency and a host government, but in
whichit isrendering thosearrangements nul1and voidby transferringaway
from the hostcountry theinstitution whose presenceconstitutes the reason
for the existence of the agreement 1".

31. Thistine ofreasoningdoes notstand closescrutiny,however *.For ifincase
of a request for revision, even an minor one, the Agreement provides serious
guarantees and time-limits,in the form of a requirement to negotiate for ayear,
beforetheparty cangivethetwoyears'noticefordenunciation,itwouldbeabsurd

to maintain that suchguaranteesdonotapply incaseofadenunciation toutcourt,
which is the limiting case or rather the most radical form of revision by anni-
hilation. In other words,if theAgreementsurrounds minor threats toits stability
withasetofguarantees,theseguaranteesapplyujortioriin caseof themajorthreat
of denunciation.

' StaternentoEtheLegalAdviser of theWHO,attheFifteenthPlenarySession of the
thirty-thiWHA, on 20 May 1980(A/33/VR/ 15); acopy of theEnglishtranslationis
depositedwiththe Registry. [Not reproduced.]It should be noted,however,that the
LegaiAdvisergavetheversion quotedin thetextas onepossibleinterpretation,notas
hisowninterpretation of Section37.
Buteven ifweaccept it,Section37 wouldstillbe applicable in the circumstances
and for the reasons describein note 1, p165, above. WRIïïEN STATEMENTOF EGYPT 167

32. Nor can sucharestrictivereasoningdraw any support from thefact that in
sorneheadquarters agreementsrevisionand denunciation clausesare includedin
separatearticles,orinseparateparagraphsof thesamearticle.whileinothers they
are combined in the sarne provision.
The combination may have been motivated by considerations of economy or
eleguu~iujuris . utmoreprobably,it reflectsaconcern toreinforcethestability of
the agreement : a concern which a reasonable rcading of Section 37can easily
bringout. Indecd,thesequenceclearlyindicatesthatwhat isrncaritbyrevisionisa

rencgotiation of the Agreement as a meens of prcvcntirigits denunciation ;and
only if this lails can denunciation intcrvcne, with a two years' notice.
lt would indeedgo against common sense and the whole "good-faith" legal
régimegoverningtherelationsbetwcenthe Parties. tointerpret theAgreementas
allowing a Party.'byadopting themostradicalattitudeand proceedingdirectly to
anunmotivatedorcategorical denunciation, toslip throughal1theguaranteesand
rcquirements.
This isthe moreunacceptable inviewof thefact that the interestsof theparties
whichare safeguarded by these guarantees are the sarne whether thedenuncia-
tion ispreceded or not by a request for revision. In fact, the nced for thcir pro-
tection may be more urgent and imperalivein the latter than in the former case.

33. Another reason for dismissing the restrictiveinterpretation of Section 37
which limits it to revision is the dangerous and absurd results it leads to.
The establishment of headquarters is a long. comp1e.uand costly affair. An
unchecked faculty to denounce a headquarters agreement would put the inter-
national organization in a situation of permanent insecurity. It would mean a
permanent risk of suddenly finding itself faced with the unenviable choice
bctween maintaining its headquarters in the denouncingState,but without the
guarantees necessaryfor jts effectivelunctioning, or transfcrring the hcadquar-
tcrs to another country, but without having a sufficient adjustment period for
that purpose. Either way, the effectiveness of the organization would be
impaired. And even without denouncing the agreement, the mere existenceof

such a possibility wouldundermine the effectivenessof the guarantccs provided
by it. Similar misgivingscan also exist on the part of the host State.
Clearly sucha situation wouldbe unsatisfactory to both parties, whichmeans
that it cannot be presumed to reflect their implied comnion will.
34. Can it be argued - in order to maintain the restrictive interpretation of
Section 37,whileavoidingits absurd and dangerous results for the international
organization referred to in theprecedingparagraph - that therigbt of unilateral
denunciation (whenit does not followon arequest for revision)can be exercised
only by the international organization, but not by the host State?
Such a patent discrimination between the parties - given its complete
contradiction with the synallagmaticcharacter of the veryconcept of agreement

and its potential antagoriism with the fundamental principle puctu sunt ser-
rondu - cannot be merely posited, but its lcgal basis has to be strictly
proved.
35. It could be alieged that an implied clause to this effect cm be read into
headauarters agreements [or in other words that the common intention of the
parti& can be tius interprèted)becauçetheseagreementsarcnot typicaltreaties
basedon an exchaneeo€considerations.but are rather similartowhat iscalledin
Frcnch civil law a ;nilaterd contract (con~rutunilutérai'), by whichone party

de droitcivil, Vol.2, 4th ed. (Paris,LGDJ1952),p. 28,para. 69., TraiteBlémentaire168 ~NTERPRETATIONOF AGREEMENT

acquirescertain rightswithoutincurring anyobligations,whiletheother assumes
al1the obligations without acquinng any rights. In other words, headquarters
agreements would be exclusivelyto the benefit of the international organization
and at the expense of the host State. In these circumstances, it would be rea-
sonable to assume that the international organization can renounce unilaterally

these nghts and benefits by denouncing the agreement, and that the host State
would have no objection to being thus released from its obligations under the
agreement without any of itsnghts or interests being impaired. But because of
the asymmetrical nature of the situation, the reversecannot be assumed.
36. This reasoning has to be rejected, however,for two basic reasons :

(i) International law does not recognize a category of "unilateral treaties", in
relation to whichit establishesadifferential treatment of theparties.Neither
in the Vienna Convention on the Law of Treaties of 1969nor in the draft
articles on treaties concluded between States and international organiza-
tions or between Iwo or more international organizations cm we find any
reference to such acategory or anyprovision whosecontent could be saidto
be inspired by such a classification.
(ii) In any case, even if this category did exist,it would be wrong to assert that
headquarters agreements belongedto it.Itistrue that most of the provisions

of these agreements deal with the privileges.immunities and facilities that
the host State accords to the organization. But this is not without a consid-
eration. Indeed, there are many advantages for the host State in having the
headquarters of an international organization on its territor1.Most,but by
no meansal], oftheseadvantagesare of theimmaterial kind ;but this typeof
advantages and interests are of great importance in international 1awand
relations.

Moreover, once the headquarters of the organization are established in the
territory of a State,the State developsa basic interein avoidinglargescaleand
abrupt changes, such as a sudden transfer of headquarters.
In a recent report by the Director-General of the WHO entitled "Outline
of a Possible Study of the Feasibility of Relocating WHO Headquarters", it is
written :
5
"The introduction of the headquartersmofa major international organi-
zation and its staff in a new country location could have a significant
socio-economicimpacton the newhost country, oron aparticular urban or
rural area of the country. It would bnng an influx of people with a wide
range of cultural and linguistic backgrounds. Travel to and from other
countries would be increased. Introduction of the WHO headquarters

would attract foreign currencies,provide local trainingopportunities, pro-
mote localgrowthand providejobs. At thesametime,theabsorption of new
people, demands on housing, transport, commodities, services,educational
and other facilities, diplomatic irnmunities, and cultural influences wodd
al1combine to affect the life style,structures and economy of the new host
country *."

The socio-econornic environment which adjuststo the presence of the head-
quarters and evolves around it, would be severely perturbed by ils sudden

' SeeCahier, op. ci?pp. 199ff.Seealso thestatement oftheEgyptianMinister for
ForeignAffairs, quoted inparagraph 24 above.
* EB65/ 18,Add.3, 3 Decernber 1979, para.3.14. WRIlTEN STATEMENTOF EGYPT 169

removal. Sufficeit to mention here the prospects of unemployment arnong the
local staff.
Al1of which clearly proves that headquarters agreements cannot be consid-
ered as "unilateral contracts", and that host States too have legitimate interests
whichhave tobe proiected by the agreement against sudden changes decided

unilaterally by the other party.
37. Nor can such a unilateral right of denunciation for the international
organization be based on acustornarymle. The existenceofsucha rulehas tobe
proved. But weare here in an area where no precedents or practice exist, except
for the provisions of the headquarters agreements themselves ;and these do not
reflectaconsistent pattern,but divergentsolutions ;not to mention the necessity
of proving the existence oï the opiniojuris.
38. The only possible legalbasis at present for the recognition of a unilateral

right of denunciation for the international organization (but not for the host
State) is an explicit provision in the treaty itself.
Suchaprovisioncanbefound insomeheadquarters agreements. Forexample,
Sections 23 and 24 of the United Nations headquarters agreement with the
United States provide :

"The seat of the United Nations shdl noî be removed [rom the head-
quarters district unless the United Nations should so decide.
This agreement shallcease to bein forceif theseat of the United Nations
is removed from the territory of the United States, except for such provi-
sionsasmaybe applicable inconnectionwith theordcrly termination of the
operations of the United Nations at its seat in the United States and the
disposition of its property therein '."

39. In the absence of such an explicit provision, it is impossible to assume a
unilateral right of denunciation exclusivelyin favour of the international orga-
nization, especiallyin the context of an agreementwhichdoesrecognize IOei~her
pariy the right to denounce it, but in accordance with the procedures and the

guarantees it prescnbes Forsuch a serious step.
Indeed, it wouIdbe absurd toassumetheexistencewithin the same agreement
of a duality of solutions to the same problem of denunciation : one which
recognizes the right to either party, followingon the failure to agree on certain
revisions, and which is surrounded by guarantees and time-limits ; the other
which recognized the right only to the international organizütion in cases of
denunciation tour courl,without any prior requirements, guarantccs or notice
period.
Such an interpretation is so fat-ietched thai, givenitsunusud character, if it
'
reallycorresponded to the intention of the parties, they would not have failed to
providefor it explicitlyby speciîying thedifferent conditions ofdenunciationin
the two cases. But the merecontemplation of how such a provision would read
imrnediately brings out the tact that the interpretation in question is not only
legally unfounded, but rnost of al1 logically inconsistent as to be practically
unworkable.
In practice, there can be no divergent solutions within the same lcgal instru-
ment for the samelegalproblem ;based moreoverinone caseon an explicit legal
provision, whilederived in theother by implication from an as yel unidentified

and unproven source.

' II UNTS. p. 12 : cf.Art.52 of the WeadquartersAgreement of the lAEA with
Austria, 339 UNTS. p. 110. 170 INTERPRETATIONOF AGREEMENT

What we do find in practice is two different solutions to the question of
denunciation, both based on explicit provisions includedin headquarters agree-
ments. And if one or the other provision figuresin an agreement, it covers al1

casesofdenunciation under that agreement, to theexclusioiiofany other explicit
or implied provision or solution l.
The assumption of implied clausesor solutions in one dircction or the other
can thus only be envisaged in the absence of any cxplicit provision on the
matter.

CONCLUSION

40. In view of the foregoing considerations, the Egyptian Govemment re-
spectfully submits
- that the Agreement of 25March 1951between the WHO and Egypt is a

Headquarters Agreement for the WHO Regional Office for the Eastern
Mediterranean in Alexandna ;
- that the provisions of Section37of the Agreementare fullyapplicable to
the transler of the Regional Office from Egypt : and that any such
transfcrwithout regard to theseprovisionswould constitute aviolation of
the Agreement.

The United Nations HeadquartersAgreementwith the United States does not
includeany othcrprovisionthanSection 24,dealingdirectlyorindirectlywithdenun-
ciation(orrevisionforthatmatter);andintheWHO-Egyp t rcement(and the many
other agreementsndaptingthe srme solution)thereis no otier provisionthan Sec-
tion37 refcrnngto denunciation. ANNEXESTO THE WRITTENSTATEMENT OFTHE

GOVERNMENTOF EGYPT '

LETTE RROMTHE STA'TAII)VISE(ADVISOR DYEPARTMEN FTRTHE MINIS~RIES
OFFOREIGA NFFAIRS AND JUSTICE )OTHE WHO ~GIONAL DIRECTOC RA,IRO,
23 MARCH 1950

Subjeci:DrufiAgreenienheiweeitheE,qpiiuuGovernnien tndthe WorldIIeulth
OrgunizurionRegional Oflice.

With refcrence to your Excellency'sletter dated 10March 1950enclosing a
copy of the draft "Hosi Agreement" to be signed between the Egyptian Gov-
ernment and the World Hcalth Organization on the subject of theprivilegesand
immunities of the Regional Office for the Eastern Mediterranean, 1have the
honour toinformyour Exccllcncythaitisapparent,from studying theclausesof
this Draft Agreement. as phrased by the World Health Organization, that the
Organization has conceded to mosl ofthe suggestions made by the Advisory

Department concerning the original Draft Agreement which waspresented by
the Organization, and that the Organization has to incorporate the neccssary
arnendments in this last Draft Agreement, in accordance with the previously
expreçsed opinions of the Advisory Drpartment. On the otherhaiiis also
apparent that theOrganization did not agreeto certain suggestionsmade by the
Advisory Department, the reason for which is contained in the explanatory
memorandum attached to your Excellency'sletter and the new textof the Draft
Agreement.
It appears that opinions differ on the followingsu:jecls

(1) Immunity of property owned by the Organization in Egypt, for use as
premisesof the RegionalOfficefor the Eastern Mediterranean, from expropria-
tion for public interest (Article 4, Section 6 (2)new tamended Draft
Agreement presented by the Organization) ;

(2)Exemption of the Organization from indirect taxation (Article4, Section
11);
(3) Submission of the officiais of the regional office who are of Egyptian
nationality to Egyptian Cnminal Law, in matters not relating to their officia1
duties (Article 8, Section 25, 1,2);
(4) Libertyof Access into Egypt of representativofrnember States and
officia15of the Organization (Article 9, Se27).n

Your Excellencywillremember that during our conversatwensucceededin
overcomingthedifficultiesconcerning the turosubjects,mentioned above under
f3)and (4)when your EXcellencyagreed- and sohas theOrganization- to the
exchange of two lctters at the time of signing the Agreement betweethe
Egyptian Governrnent and the Organization, statingthat exemption from sub-
jeciion to Egyptian Criminal Laws willnot apply, under any circumstances to

1 Receivedinthe Registon 15Seplember 1980.172 INTERPRETATION OF AGREEMENT

ernployeesof the Regional Officewith Egyptian nationality, irrespectiveof their
grades,inmatters not relating to theirofficiaiduties. Liberty ofaccessinto Egypt
of representatives of World Health Organization member States, to attend
conferences and meetings within the sphere of ackivityof the Regional Office,
and liberty of accessof experts and officials of the Organization to fulfil their
official duties in Egypt, exempts neither the former nor the latter from health
quarantine measures imposed in the interest of maintaining public heaith.
In viewof this, theAdvisoryDepartment no longerholds itsprevious opinion
conceming the subjectsmentioned aboveunder (1)and (2),i.e.,inrelation to the

expropriation of property owned in Egypt by the Organization or its Regional
Office,and the subjectofexemption fromindirecttaxation.This isso sinceit was
made clear frornyour Excellency'sconversation that the Organization does not
own anyproperty in Egypt and does not intend to do so. Furthermore, since the
building occupied by the Organization'sRegional Officein Alexandria isin fact
the property of the Egyptian Government, it is therefore not liable, at any time,
to expropriation for public interest.
Conceming exemption from indirect taxation, the Advisory Department is
encouraged tocedeitsprevious opinionin thisconnection, owingto thecontents
of Article 7 (Section 10of the Convention) where it isstated thatheOrgani-
zation does not intend, as a general rule, to claim exemption fromexciseduties

and from taxes on the sale of movable and immovable assets, and that if its
official duties necessitated the making of important purchases, the prices of
whichincluded suchduties and taxes,then the Organization shallnegotiatewith
the Egyptian Government for reimbursement of taxes or duties paid by the
Organization, whenever possible.
Finally 1have thehonour to inform yourExcellencythat 1have forwarded to
the Ministry of Foreign Affairs a copy of this letter and of your Excellency's
above-mentioned letter, and 1 hope that the Host Agreement between the
Egyptian Government and the World Health Organization willbe signed in the
near future, in order that theprivileges,immunities and facilitiesof the Regional
Health Office for the Eastern Mediterranean may be finally determined in

respect of Egyptian Law.If this is achieved,it would then be possible to use this
Agreement as a model for other similar host agreements.
(Signe d)aheed &'FAT,

State Adviser. WRI'ITEN STATEMENT OF EGYPT

MINUTE OF THETHIRTY-THI RPDENMEETIN GF THEEGYPTIAC NHAMBE OF
DEPUTIEH SELD IN CAIRO ON 25,26 AND 27 JUNE1951

Reference was made to the following let:er
"H.E. the President of the Charnber of Deputies,

1have thehonour to submit herewith toYour Excellencythereport of the
Foreign Affairs Committee on the draft decree approving the Host Agree-
ment between the Egyptian Government and the World Health Organiza-
tion, signed in Cairo on 25 March 1951, which 1 kindly request Your
Excellency to put before the Chamber.
The Committee appointed Dr. Riad Shams Rapporteur.

YOU~Se,tc.,

(Signed)Yasin SeragEL-DINE,
12June 1951 Chairman of the Committee."

Presidenr:

Do you agreethat thereport shouldnot be read, it being sufficientto include it
in the minutes?
(Generulopproval.)

President:

Does any Honourable Member object in principle to thLsdraft decree?
Hon. Member Ibrabim Tal'at :

Honourable Membersof theChamber :the reasonsforwhich1objected tothe
decree concerning the exchange of technical assistance, under the Point Four
Programme,apply nowalso,because 1donot believein the missionofthe United
Nations Organization which has been the cause of dl the misfortunes wfiich
befelltheweak nations. 1thereforecallupon youto rejectthedecreesubmitted to
us. (Applause.)

Hon. Member AbdelMageedAhdel Haq Bey :

Honourable Members, if you referretothisAgreement,you would find that
its purpose is to impose obligations on the Egyptian Government without
mentioning anything in retum forthese obligations.
This decree is an important one. It aims at determining the privileges,immu-
nitiesand facilitiesto be granted to al1member States of the Organization, to its
experts and officiais. It is clear from Article II that the Organization possesses
jundical personalityand legalcapacityand hasin particular the right to conlract,

to acquire and disposeof immovableand movableproperty andto institute legal
proceedings. 1 do not care whether the Organization shall have the right to
acquire irnmovable or movable property, but what1 care about is that the
provisions include the rigofthe Organization to institute legai proceedings.
That is not dl. In referring to Article 1Vof the Agreement, one finds that the
Organization, itsproperty and assets in Egypt shall enjoyimmunity from every174 INTERPRETATION OF AGREEMENT

form of legal process unless thisimmunity iswaivedby the Director-General of

the Organization or the Regional Director, asbisduly authorizedrepresentative.
How can the Organization have the right to institute legal proceedings whileit
enjoys immunity from everyform of legal process? Furthermore, it is stated in
clause 2 of Section6 that the premises, the property and the assets of the
Organization in Egypt shall be immune from search, requisition, confiscation
and expropriation. While the Organization enjoyssuch immunity it shall have
the nght to contract with any individual from amongst us for the purchase of
property, whether agricultural or not. Ifdisputes arose,to what legalauthority is
one to appeal
?
The answer isfound in Section 33 of Article IV [sic; ?XI]of the Agreement
which states :
"The Organization shall make provision for appropriate modes of set-

tlement of :
(a) disputes arising out of contracts or other disputes of a private law
character to which the Organization isa party :
(b) disputesinvolvinganyofficia1of theOrganization who,by reasonof his
officia1position, enjoys immunity, if immunity has not been waived
by the Director-General in accordance with the provisions of Sec-

tion 26."
If theseprovisionswereimposed,wewouldfindourselvesinasituation similar
tothat wehad toput up with in relation to the British Forces during the last war,
wheneverycontract with themwasimmunefrom legalprocessand not subject to

thejurisdiction of the national or mixed courts. As a result of this, any person
claiming his rights willbe prohibited from appealing to the courts and willhave
no alternative, according to the provisions of this Agreement,but to corneto an
amicable arrangementwith the Director of the Organization, whois at liberty to
settle the dispute in accordance with Section33 of Article XI, which 1havejust
read out to you.
What is really strange is that the provisions ofArticle VIcoveralso immunity
from legal process in respect ofwords spoken or written and al1acts performed
by representatives of member States,in their officialcapacity, and who are not

Egyptian nationals.
1realizethat thiswould belogicd in matters of commonlaw, but it isnot so in
crimind rnatters. Although 1presume that no State has evilintentions, yet it is
possible that there may be found a person who believesin subversiveprinciples,
and who may whileenjoying this immunity, make during a meeting statements
that are contrary to Ourprinciples and convictions. A person may incite public
opinion to revolutionary acts and our Government willhave its hands tied and
will not be able to do anything about it.
It isalso strange that the immunity granted to experts, andwho faIlinto four
categories, shall continue to be accorded even after their period of seMce is

over.
1also believe that it is dangerous that the Agreement should allow theOrga-
nization'sofficiaisand experts to use acode thernselves,although this maybe an
accepted means of communication between one embassy and another.
Section 25 of Article VI11states that :

"In addition to the immunities and privilegesspecifiedin Section 22, the
Director-General, the Deputy Director-General, the Assistant Directors-
General, theRegional Director in Egyptand hisDeputy shallbe accordedin WRITTENSTATEMENT OF EGYPT 175

respect of themselves. theirspouses and minor children, the privilegesand
imrnunities. exemptions and facilities accorded to diplomatic envoys in
accordance with intemational Iaw and usage."

Clause 2of Article IX states that among those to be offered facilitiesof entry
into, residence in and depariure from Egypt are rcpresentatives of member
States,whatevermaybe the relationsbetween Egyptand theMemberconcerned.
This means that Egypt has to instruct its embassies to facilitate the entry into
Egypt of persons whose presence in Egypt may be undesirable.
To whom are these provisions to apply ? They apply to their spouses and
dependants, as is stated in Clause4 of this same Article.
Article X deds with thesecunty of Egypt and contains the following :"Noth-
ing in this present Agreement shallaffect therightof the Egyptian Government
to take the precautions necessary for the security of Egypt."

Is this a consequence of preceding provisions or is it a confirmatory
clause ?
The Agreement and its text do not prejudice any of the nghts relatjng to the
security of the Egyptian Kingdom.
In other words, the Egyptian Covernment may, under such circumstances,
take the necessary measures to ensure the security of Egypt, in spite of the
Agreement. But the Article itself may have two interpretations ;firstly, the
recognitionofafact and the non-prejudicingofanyoftherightspertaining to the
securityofEgypt ;thesecond isthat the Egyptian Government isfreetotake any

measures contrary to the provisions of the Agreement. 1believethat the provi-
sionsof the Agreement put the EgyptianGovernment under anobligation which
could not be eluded by virtue of Article X whichcould admit to more than one
interpretation. Subsidiarily,Imightmention that theletter addressed to H.E. the
Minister of Foreign Aîfairs by the Directnr-General of the Organization con-
tained severalitems whichdo not exempt usfrom any of theexistingobligations.
Foremost among theseis the Director-General's agreeingthat the Organization,
accordingto Section 8,mayhold g?ld and, through normal channels, receiveand
transfer it to and from Egypt, yetit shall not transfer from Egypt moregold than
it has brought in. The second item concems hisacceptance of the determination

of the categoriesof officialsand thenatureandextent of facilitiesand privileges
to be accorded to them, etc.
The [hird item reads as follows :
"1 agree that the Organization will not claim on behalf of officials,

asçigned to the staîf of the Regional Office in Egypt, who are Egyptian
Nationals, irrespective of grade,immunity Eromthe criminaljurisdiction of
the Egyptian Courts in respect of words spoken or written and acts per-
forrnedby them insofar as thesewords or actsarc not spokenor writtcn or
performed by them in their official capacity."

Perhaps this reservation provides an cxplanation for my words and removes
any doubt as to the interpretation that there shall be immunity as regards al1
crimes, crimesof words spoken or writien or acts performed. This isclear from
the phrase "in their officia1capacity". Egyptians, in their officialcapacity, dso
are immune as regards such crimes.
The fifth item in the letter reads as follows:

"1 take note of your statement to the cffect that notwithstanding the
provisions of Section 27, the Egypti- Government may, in accordance
with Section3 1,take, as regards natTonalsof countries whoserelations with176 INTERPRETATIONOF AGREEMENT

Egypt are not normal, al1precautions necessary for the security of the
country."
The relations between Egypt and certain couniries are not normal, as is the
casewith lsrael for example,whichhas no political relationswilhus. It may also

be that the principles propagated in certain countries are contrary toour prin-
ciples.However,if theperson,whomaybeundesirable,cornesfromSay,England
or America, then we cannot, according to this Agreement, take any measures
against him.
ln anycase, thisiswhat 1understood and 1 maybemistaken. At the same time
Iam prepared tolet myselfbe persuaded, but as 1understand it thisAgreement
aims At theestablishmentof a govemmentalorganizationwith fullpowers.It will
not bc subject to Egyptian jurisdiction, police or executivemeasures,even if its
Director waives the irnmunity.
The Agreement then, as 1 see it, affords no advantages to make me accept
it.

ffon. Menrher Soliman Abdel Fattah :

1object to thisdecreefor reasons sirnilarto thosc put forward by the previous
speaker. I ask your kind permission to allow me to repeat thestatement with
which the Hon. Member Abdel Mageed Abdel Haq Bey ended his speech,
namely that, in accordance with this Agreementweshall imposeon our country
everlasiing obligations to grant privileges to a party that is not subject to the
jurisdiction of our courts, to our lawsor Ourconstitution. Weshallbe atone end
and ihis Organization. which is set up in Ourcountry. will be al another end,
enjoying special privileges and having special codes which shall distinguish it
[rom the Egyptians who own this land.

President :
You mean that this Agreement reintroduces the system of ForeignCapitula-
tions.

Ilon. MeniberSoliman Abde[ Fattah : I
In fact this Agreement leads to the grantingof privilegesmore harrniul than
the foreign Capitulations, which havebeen abolished.

The firsi clause.of Article IX state:
"1. The Government of Egypt shall take al1measures requiredto facili-
tate the entry into, residence in and departure from Egypt of al1persons
having official business with the Organization, i.e.:

(a) Representatives of Members, whalever may be the relations between
Egypt and the Member concerned.
(b) Expertsand consultantson missionsofthe Organization,irrespectiveor
nationality.
(c) Officials of the Organization.
(d) Other persons, irrespectiveof nationality, summonedby the Organiza- .
tion."

According. to these provisions the Organization may, while we are still
regwded to be at war with Israel,summon, by virtue of this Agreement, repre-
sentatives from Israel to come and live with us and enjoy, according to this
immunity, the right to send without any control cables in a special code con-
tainingal1theinformation collectedabout Egypt.Arewetostand withOurhands
tied. in accordance with this Agreement. unable to do anything ? WRITTEN STATEMENTOF EGYPT 177

1believethat the Chamber agrees withme to reject tkjsAgreement in order to
preserve the honour of Egypt and prevent these everlasting privileges being
granted.
Hon. Memher Ahmed Humady :

Honourable Mernbers of the Chamber : most probably my colleagues and
especially the lawyers arnong us remember the history of the foreign Capitula-
tions inEgypt,astheywillundoubtedly rememberthat, accordingto that system,
each foreign consul and each foreign embassy, no matter how insignificant the
country they represented was, had the right to protect any person who sought
such protection, even though he were a national of this country. What used to
happen was that brawlers and swindlers would seek refuge in these consulates

and obtain suchprotection as to enable them to escape thejudgments passed on
them. When the execution of thejudgment was to be carried out such people
would face thecourts'officers sayingthat they wereunder the protection of such
and such consul.
It is possible that such conditions may return in accordance with this Agree-
ment, which givesthe Organization the right to extend its protection to whom-
soever it wishes, evenif he were an Egyptian. The Egyptian who will enjoy the
irnmunity granted to the Organization regarding freedom of speech, of action
and ofwriting, may attack and harm others. In this liesa great danger and 1call
upon you to reject such a pnnciple.

My colleagueAbdel MageedAbdel Haq Beyasked whether the Organization
has tooffer any advantages to Egypt and I would liketo reply bysaying that the
first advantage was that the Organization took overfrom the Egyptian Govern-
ment theQuarantine Administration building in Alexandria at a nominal rent of
LEI, although it cost the nation over 100,000Egyptian Pounds. The result was
thatthe Quarantine Administrationat which foreignvisitorscallwasremovedto
a quater in Alexandria which is regarded as dirty.
Honourable colleagues, this agewillneverforget that the Wafd abolished the
foreigners' privilegesaccorded by the Montreux Convention. It isnot fittingfor

us ; and especially when the Wafd holds power, to accept this Agreement and
bnng back such privileges in their ugliest form.
Rupporteur .

Honourable Members of the Chamber : the fact is that my honourable col-
leagues who have spoken, have exaggerated the extent of the privileges to be
accorded to representatives of member States,by virtue of thisAgreement. The
provisions of the Agreement contain al1the assurances necessary to prevent the
misuse of this immunity :al1 the clauses, you will find, contain a statement
similar to the following :"not for the personal benefit of the individuals them-
selvesbut in order to safeguard the independent exercise of their functions in
connection with the Organization".
What islaid downin thisAgreementisthat suchimmunitieswillbe enjoyed by
the person concerned only within the limits of his official function.

President :

Who is to determine such limits?
Rupporteur :

Article XI deals with such limits and specifies that :
"Any differences between theOrganization and the Egyptian Govern- INTERPRETATION OF AGREEMENT

ment arising out of the intetpretation or application of the present Agree-
ment or of any supplementq arrangement or agreement which is not
settled by negotiation shallbe submitted for decision to a Board of three
arbitrators ;the first to be appointed by the Egyptian Government, the
second by the Director-General of the Organization, and the third, the
presiding arbitrator, by the President of the InternationalCourt of Justice,

unless in any specific case the parties hereto agree to resort to a different
mode of settlement."
This Board undoubtedly offers al1the necessary safeguards.

Hon. MentberAbdel HameedAbdel Haq Bey :
It appears that the differences lie in theinterpretation of the Agreement ;the

provisions themselves seemto be quite clear.
Rapporteur :

The provisions are clear and they are in the interest of Egypt. The purpose of
theseprivilegesand immunities is to protect certain individuals belonging to an
international organization, to enable them to carry out, in the best way, their
duties, each within his own field.

H.E. the Minisrerof ForeigA nffairs:
In fact thequestion under discussionconcerns theworkof theUnitedNations
Organization, the organization which directs the policies of the whole world.
Becauseof this itwas agreedthat it should enjoy suchprivilegesand imrnunities

to enable it and to enable its officials to carry out their functions in complete
freedom. Egypt has in fact agreed to a special agreement dealing with such
privileges and immunities which has been ratified by the Egyptian Parlia-
ment.
It is known that the United Nations has several branches, the Specialized
Agencies, such as the Food and Agriculture Organization, the World Health
Organization, etc. When such agenciesset up officesin a certain country, they
request that country to grant them privilegesand imrnunities similar to those
accorded to the Organization itself.

No one canclaimthat the United States ofAmerica,whch isthegreatest ofal1
nations, accepted to commit itself to the granting of pnvileges to foreigners
similar to rhose hateful privilegeswhich Egypt has rid herself ofjust because it
accepted to be the host to the United Nations Organization and granted it such
privileges and immunities.
Similarly,it cannot be said that Egypt, whichhasaccepted tobe thehost to the
WHO Regional Office for theEastern Mediterranean, is inaugurating a newera
of foreign privilegesif it grants this Office the pnvilegesand immunities accord-
ing to international practice.
This would be an exaggerated statement which, 1 hope, the honourable
Chamber will reject.

The provisions of this Agreement before youare standard provisions, which
have been laid downto be implemented ineverycountry which becomes host to
any of the SpecializedAgenciesor any of theirbranches. Egypthas succeeded,in
spite of this, in making certain reservations conceming the provisions of the
Agreement before you, to which the appropriate bodies have agreed. Since the
provisions of theconventions on privilegesand immunities of SpecializedAgen-
ciesare standard ones,as 1havejust stated to you, therefore Egypt's reservations
havenot taken the form of amendments of the text itself,but theyhavebeen laid WRITTEN STATEMENTOF EGYPT 179

downin a lettersent by the Director-General of the WHORegionalOfficetothe
Egyptian Minister of Foreign Affairs, a translation of whichyou willfind as an
annex to the Agreement.
The main reservation conlained in the letter is that relating to the right of the
Egyptian Government to take al1precautions necessary for the security of the
country, in respect of nationals of countries whose relations with Egypt are not
normal.
There isnothing elseto worryour minds with except perhaps the point raised
by theHonourable MemberAbdel HameedAbdel Haq Beyrelatingtoimmunity

frorn legal process.
Ilon. MeniherAhmed Humudy :

The law prohibits foreigners to own property, therefore the Agreement con-
tradicts the law.

II.E the Minister of Foreign Affuirs:
It isnecessaryfor theOfficetocarryout itsfunctions toown, rentand transact.
It needs,for example,officesfor its employees,and it rnaypurchasesuchoffices,

but it cannot of course purchase property for profit purposes. In other words
what property the office rnay purchase will never be very much.
lion. MenrherAhdel HameedAhdel Haq Bey :

ArticlesVI and VIII cover the immunities and privilegcsto be enjoyed by
representatives of mernber States who are no1Egyptian nationals, and officials
irrespective of nationality, such as immunity from arrest and seizure of their
personal baggage, the nght to use codes in their correspondence, immunity of
officials from legalprocess in respect spoken or written, and al1acts performed
by them in their officia1capacity, etc. These immunities are such that we could

not possibly agree to them under any circumstances.
II.E the Minislerof ForeignAffuirs :

The purpose of such immunity is to enable officials of the Organization to
perform their duties free1y.It isnotto exempt them from criminal responsibility
in ordinary crimes such as assault or theft.

Ilon. MemherAhdel fïarneedAhdel Huq Bey :
But Article XI states that officials are covered by immunities in al1 acts
performed by them, as Section 33 states that :

"The Organization shall make provision for appropnate modes of
settiernent of:

(4 Disputes arising out of contracts or other disputes of a private law
character towhich the Organization is a pariy.
(b) Disputesinvolvinganyofficialof theOrganizationwho,byreasonof his
official position, enjoys immunity, if irnmunity has not been waived
by the Director-General in accordance with the provisions of Sec-
tion 26."

The main thing 1wish to draw the attention of H.E. the Ministcr of Foreign
Affairs to is that such arrangements as the Organization can take in accordance
with thisAgreement arenot to befound anywhereexcept in Syria,the Lebanon
and Trans-Jordan.180 INTERPRETATION OF AGREEMENT

H.E. the Minister of ForeignAlfairs :

On thecontrary they are to be found in Italy where the Headquarters of the
Food and Agriculture Organization are. It must be borne in mind that many
countries are trying to get the WHO Regional Office for the Eastern Mediter-
ranean moved to their territory. Anyway, the privilegesand immunities which
theAgreement before youwillaccord,are minor onesand solimited as toenable
the office to carry out its functions in complete freedom. They should not be
compared with the outmoded foreign privileges.
Nevertheless, Egypt has taken the necessaryprecautions in orderto refuse to

grant the permission of entry to undesirables, such as Israeli citizens.
The immunity from legalprocesswhichthe officeand its ofîicialswillenjoyin
Egypt,just as similar bodies enjoyin other countries, does not 1believeinvolve
any harm or danger, because the persons who shall approach the office to
transact business willdo soin full knowledgeof the irnmunitiesand privilegesit
enjoys. They will therefore make it their purpose to safeguard al1their rights
when they commit themselvesin any contract with the Office.
Most probably it will be the Officewhich willfind itseIf compelled tosatisfy
the contracting parties and grant them, in advance, al1their rights.

President :

The debate is over. Will al1those objecting to the decree in principle please
stand.

(AnuniherofMembersstood up, butitwm notpossibletosee whethertheyformed
a mujority or u minority.)
Presidenr :

We shall take the vote in the reversernanner. Will al1those who agree to the
decree please stand up.

(The mujorityoofthe Memberssroodup.)

Presidenr :
We shall proceed to the discussion of the Article.

Rapporteur :

1shall read to the Honourable Members the text of the Article :

" We, Faroukthe First, King ofEgypr
The Senate and the Chamber of Deputies have ratified the followinglaw
and we hereby approve and issue it :

A Single Article
The Kost Agreement between the Egyptian Government and the World
Health Organization, signedin Cairo on 25 March 195 1,the text of whichis

appended herewith, has been approved.
Weorder that this law shall bear the nation's sealand shall be published
in theofficial gazette and enforced as one of the laws of the nation."

President :
Do you approve this Article ?

(Generalopproval.) WRI'TTENSTATEMENTOF BGYPT

Presideaf:

Let the text ofthe Agreement referredto inthis Articlebe read.

(The texf oJihe Agreenimf wus reud)
Presidetr:

Do you approvethisAgreement?

(Gerreruuf pprovul.) WRITTEN STATEMENTOF THE GOVERNMENT

OF THE UNITED STATESOF AMERICA

27 August 1980.

INTRODUCTION

1.The Questions

On 20 May 1980,the Thirty-third Health Assembly adopted the following
resolution:

"Having regard to proposais which have been made to remove from
Alexandria the Regional Office for the Eastern Mediterranean Region of
the World Health Organization,
Taking note of the differing views which have been expressed in the
World Health Assembly on the question of whether the World Health
Organization may transfer the Regional Office without regard to the pro-
visions of Section 37 of the Agreement betweenthe World Health Organi-
zation and Egypt of 25 March 1951,
Noting furtherthat the Working Group of the ExecutiveBoard has been

unable to make a judgment or a recommendation on the applicability of
Section 37 of this Agreement,
Decides,prior to taking any decision on removal of the Regional Office,
and pursuant to Article 76 of the Constitution of the World Health Orga-
nization and Article X of the Agreement between the United Nations and
the World Health Organization approved by the General Assembly of the
United Nations on 15November 1947,to submit to the International Court
of Justice for its Advisory Opinion the followingquestion:

1. Are the negotiation and notice provisions of Section 37 of the
Agreement of 25March 1951between the WorldHealth Organization
and Egypt applicable in the event that either party to the Agreement
wishes to have the Regional Office transferred from the territory of
Egypt ?
2, If so,what would be the legal responsibilitiesof both the World
Health Organization and Egypt, with regard to the Regionai Office in

Alexandna, during the two-year penod between notice and termina-
tion of the Agreement ?"

II. Jurisdictionof the Court

The jurisdiction of the Court derives from Article 65, paragraph 1, of the
Statute of the Court, which provides :

"The Court may give an advisory opinion on any legal question ai the

' Received in thRegistryon 30 August 1980.[Note by theRegistry.] WRITTEN STATEMENTOF THE UNITED STATESOF AMERICA 183

request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request." ,

Article 96, paragraph 2, of the Charter of the United Nations provides
that:

"Other organs of the Uiiited Nations and specialized agencies, which may
at any time be so authorized by the Generai Assembly, may also request
advisoryopinions of the Court on legd questionsarisingwithinthe scopeof
their activitie'."

On 15November 1947,theGeneral Assemblyapproved an Agreementbetween
the United Nations and the World Health Organization (WHO), which, in
Article X, speciFicallyauthorizes the WHO to request advisoryopinions of the
International Court of Justice "on legalquestions arisingwithin the scopeof its
competence other than questions conceming the mutual relationships of the
Organizationand the United Nations or other specializedagencies".TheAgree-
ment came into force upon approval by the WHO on 10July 1948*.
Each of these provisions requires that a request for an advisory opinion

concern legalquestions. The questions now before the Court are legalones.The
first question clearly concerns an issueof treaty interpretation, and the second
question, by its very terms, requests the Court to set out the "lcgal responsi-
bilities" of the WHO and Egypt dunng the two-year notice penod specified in
the Agreement.
While the Court has noted that, under its Statute, its power to giveadvisory
opinions is discretionary, it has repeatedly indicated that, in the absence of
compelling reasons, a proper request for an advisory opinion should not be
refused. Le& Consequencesfur States of rheContinuedPresenceof SouthAfrica

in Narnihiu(Sourh WestAfrico) notwithstundingSecuri~yCouncilResolution276
(19701, Advisor):Opinion, I.C.J. Reports 1971, p. 16; CeriairiExpenses of the
UnireclNations (Article 17,purugruph 2,of the Charter),Advisory Opinion, I.C.J.
Reports 1962, p. 151 ;Judgnzentsof ~heAdministrative Trihu~iao l f the IL0 upon
CompluinrsMade aguinst Unesco,Advisory Opinion,I.C.J. Reports 1956, pp. 77,
86. Indeed, in no case has the Court declined a request to give an advisory
opinion on a legal question referred to it in accordance with Article 96 of the
Charter. In this case, the World Health Organization has requested the Court to
assistit by givingan advisory opinion on important legalquestions on whichits

own Working Group has been unable to advise. Since the request clearly falls
within the advisoryjurisdiction of the "principal judicial organ of the United
Nations", theCourt should give an opinion on the legalquestions submitted
to it.

STATEMENTOF FACïS

According to the WHO's Constitution, adopted in 1946,the World Heaith
Assembly is the policy-making body of the Organization, The Assembly is

Art. 76of the WHO's Constitutionis sirnita:

"Upon authorization by theGeneralAssemblyof the United Nationsorupon
authorizationinaccordancewithanyagreementbetweenthe Organization and the
United Nations,theOrganization mayrequcst theInternationalCourt of Justice
Organization."opinionon any legalquestionsarisingwithinthecompetence of the

WHO, OflicialRecords.No. 13,pp.81-82,321.184 INTERPRETATIONOF AGREEMENT

empowered to establish regional organizations, with the consent of the countnes
of the region, to meet the special needs of such geographical areas as it may
define. Each regional organization is to consist of a regional committee and a
regional office. The purpose of the regional office is to be the administrative

organ of the regional committee, and generally to carry out thework of the WHO
in the area '.
Pursuant to this mandate, theWHO has during thelast 34years established six
regional offices, in Alexandna, Manila, New Delhi, Copenhagen, Brazzaville
and Washington. Pursuant to authorization granted by the Assembly, the loca-
tion of each of these offices was established bydecison of the Executive Board of
the WHO after consultation with the United Nations '.

Two of the regional offices, those in Alexandria and Washington, were created
by incorporating existing regional healthorganizations, the Alexandria Sanitary
Bureau and the Pan Amencan Sanitary Organization, respectively, into the
WHO. Each of these organizations became the WHO regional office of its
respective area. The AlexandriaSanitary Bureau, after itsincorporation into the
WHO, became the WHO'S Eastern Mediterranean Regional Office (EMRO).

The World Health Assenibly adopted the Convention on the Privileges and
Immunities of the Specialized Agencies at its first meeting in 19483,and many
States Members of the WHO have acceded to the Convention 4. The WHO
considers al1of its employees to be covered by the Convention's provisions, with
the exception of those who are recruited locally and paid hourly rates 5.The
WHO also concluded specific privileges and immunities agreements with a
number of countries in which it provides services, including Egypt6.In addition

to these agreements, the WHO hasconcluded a separate agreement,known as the
host agreement, with each of the countries that serves as host to a WHO regional
office (except the United States)7.

WHO Constitution, Chapter XI - RegionaiArrangements, Arts.44-53.
Regarding Executive Board Authorization, see WHO, Oflicial RecorrL, o. 13,
p. 344;seealsoWHAresolution1.72.Regardingconsultationwiththe UnitedNations,
seeSec.IV (3)of thefinalreportoftheWHOWorkingGroupon thetransferofEMRO,
doc,EB,65/19, Rev.1, p. 5.
The Convention, UNTS, Vol. 33, p. 261, wasadopted on 17July 1948.WHO, '
Offici Raecord, No. 13,pp. 97, 332.
Egypt acceded tothe Convention. WHO, Basic Documents (1977),p.144.
SeeWHA resolution 12.41.
Ex.. Aereement of 17 Dec. 1951 for Heaith Proiects in Guatemala. UNTS.
Vol. 120;p. 733;Agreementof 25Aug. 1950 for the ~rovhionof SeMces bytheWHO
in Eawt. UNTS, Vol.92,u. 39.
Ne countries with whichWHO has concluded host agreements concerningre-
gionaloffice arrangementsare :India, signed9Nov. 1949, UNTS, Vol.67, p.43 ;the
Philippines,signed22 July 1951, UNTS, Vol. 149,p. 197; France (concerningarran-
UNTS,tsVol.209,p.231ri;oDenmark, signedi29nJune ands7gJuly 1955,UNTS.AuVol.247,,
p. 168;Egypt, signed 25 March 1951, UNTS, Vol.223,p. 87.
Although there is no host agreementwith the United States, the privilegesand
immunities ofthePanAmencanHealthOrganization (PAHO), thesuccessortothe Pan
American SanitaryOrganization,areprotectedunder Arnencanlaw.See international
OrganizationsImmunitiesAct, 59 Stat.669 (1945),22 U.S.C.,secs.288-28% Seeaiso
Exec.Order 9751. 11Fed. Ree.7713 (1946).as arnendedbv Exec. Order No. 10083.
14 Fed. Reg.6161(1949). Y ,
The PAHO was s~ecificallvestablished in Washinnton in 1902by agreement of
severalArnerican tat teis.e;forms manyfunctions forthe ~merican c&munity in
addition toservingas the regionalofficeforthWHO. Thus,the WHO does not have WRITTEN SCATEMENTOF THE UN~TEDSTATESOF AMERICA 185

All of the hostagreements, with minor exceptions not relevant to this case, are
substantially identical. Each agreement, among other things : confers juridical

and legal capacity on the WHO in the host country ; secures freedom of dis-
cussion and meeting for the WHO's organs, officiais and delegates to meetings ;
provides for immunity from process and inviolability of the WHO'Spremises ;
exempts the WHO frorn taxation, customs and immigration restrictions ;and
provides that the host country willsupply the Organization's premises (that is,
the regional office) with security, electricity, water, gas, and removal of
refuse.
Theagreements are foran indefinite duration, except that each hostagreement

contains a termination clause substantially similar to Section 37 of the Agree-
ment of 25March 1951 between WHO and Egypt, which reads :
"The present Agreement may be revised at the request of either party. In

this event the two parties shall consult each other concerning the niodifi-
cations 10 be made in its provisions. If the negotiations do not resull in an
understanding within one year, the present Agreement may be denounced
by either party giving two years' notice 1."

In each host country the host agreement is the only agreement between the
WHO and the host country concerning the establishment and maintenance of
the regional office *.
Records indicate that the incorporation of the Alexandria Sanitary Bureau
into the Eastern Mediterranean Regional Office of the WHO (EMRO) was
rccornmended by acommittce to the first World Health Assembly in 1948,which
approved the proposal and recommended ~hatit be accomplished as soon as

possible 3.The WHO Executive Board, by resolution, accepted Alexandna as the
EMRO site in 1949 '.
At the time the WHO was considering whether to make the Alexandria
Sanitary Bureau into a WHO regional office, the Legal Cornmittee of the first
World Health Assembly reported that it would be appropnate for the WHO to

the authority to transfer the PAHO out of Washington. The PAHO servesas WHO's
regionaioffice pursuant toan agreement with the WHO. The agreementhas no ter-
mination clause.WHO, Busic Docunlenfs (1977),p. 38.
The AlexandriaSanitary Bureau,ontheotherhand, was,atthetime itwasassirnilated
into the WHO, under the authority of the Govemment of Egypt. See A. Stmpar,
"Report on the SanitaryBureaual Alexandria",WHO, OfficialRecords,No. 12,p. 65.
Theonlyinternational agreementconcerning itsestablishment and maintenanceis the
WHO-Egypt host agreement.
In addition to the host agreements,the WHO has concluded an agreementwith
France concerningtheofficeof the InternationalAgency forCancer Research(IACR).
agreement".butMaris otherwiscsimilar to theregionaioffice agreements.a "headquarters

are:T(1) the agreementswith Denmark, India. the Philippines.and France (African
Region)specifypersons towhomnoticemay be sent,whilethe agreementwith Egypt
doesnot :and (2) the noticperiod inthecaseof theAfrican agreementisoneyear ;al1
the restare twoyears.
The United Stateshas coniacted al1ofthe countries with whichWHO has signed
host agreements.and has inquircd whether any of them has made a "supplemental
agreement of any kind whichprovidesfor the establishment and maintenanceof the
regionaloffice". None has provided evidenceof any separate agreement or indicatcd
that such an agreement exists.
' WHO, OfliciR aelcords,No. 13.pp.331-332.
EB3R.30.186 INTERPRETATION OF AGREEMENT

enterinto host agreementswith those countries in whichit would haveoffices 1.

Negotiations with Egypt to secure a host agreement apparently began shortly
theredter ;the second Assembly passeda resolution authorizing the Director-
General to continue those negotiations 2.
The WHO-Egypt agreementwas signedon 25March 195 1in Cairo and went
into effcct, after ratification by Egypt, on 8 August 1951. The text of the
Agreement, like that of the other host agreements, is identical in al1but rninor

details to a draft model host agreement3 patterned aftcr the Headquarters
Agreement concluded in 1949between the WHO and the SwissGovernment '.
ThisHeadquarters Agreementwasin turn modelledon the Headquarters Agree-
ment of II March 1946 between Switzerland and the International Labour
Organisation S.
Throughout the history of the WHO, no regionalofficehas ever been moved

from one country to another, nor, so far as is known to the United States, was
sucha moveeverproposedbefore 1979.In that year,a resolutionwasintroduced
in theThirtv-secondWorld Health Assemblvcallinefor the EMRO to be moved
out of E~~G.The reason givenfor theprop~salwas-thatmost of the countries in
theEastern Mediterranean regionhad decided tobreak di~iomaticrelationswith
Egypt and did not wish to coiduct their WHO business ;hrough theAlexandria

office.The United Statesand othercountriesopposed thisaction asan improper
and costlypolitical interferenceinto thehighlysuccessfulworkingsof a technical
and non-political specialized agency.
In view of the difierences among its members, and without prejudice to any
eventual decision whether or not to move EMRO, the Assembly passeda con-
sensus resolution that referred the issue to the WHO's Executive Board for a

studyof theeffectsof moving theoffice,and requestedthat a report of this study
be presented to the Thirty-third World Health Assembly in May 1980 6. The
ExecutiveBoardformed asix-memberworkinggroup, one member fromeachof
the WHO's regions, to conduct the study.
In its interim report and again in itsfinal report to the 1980Assembly the
WorkingGroup addressed theissue,firstraisedbythe Egyptiandelegationto the

1979Assembly, whetherSection 37of the Host Agreement wouldbe applicable
toany decision to move the office, thereby requiring the party wishingto rnove
the office to givctwoycars'notice.The WorkingGroup, after analysing the text
and historical background of the Host Agreement, was unable to advise on
whether Section 37 was applicable to a decision to move a regional office 9.
In theThirty-third World Health Assembly,heldin May 1980,a proposa1was

introduced to transfer the EMRO office from Alexandria to Amman, Jordan.
During the Assembly discussionof this resolution, it becamc evident that there
existed inthe Assembly a genuine legaldifference. on which the WHO needed

WHO, Oflici~lRecords. NO. 10. p. 109.
* WHA.282.
This modelhost ag-eement(EB65119, Rev. 1.Annex F /p.93. sum.a/ has been
provided totheCourt.
SeeWHO doc. IC/W.4of Oct. 1946, p.3.cited inER65/19,Rev.1. p. 7.
WHO'SHendqunrters Agreemen wtithSwitzerlandispublishedin UNTS, Vol.26.
p.331.The Suriss-IL0Hendquarters Agreemenitsfoundnt UNTS. Vol. 15.p. 377.
WHA.32/1979/REC/ 1.
EMR/ERWG/1 through4 and annexes, hereinafterreferrcd to asthe interim
report/p. 8r5supra].
EB65/ 19, Rev.1.hereinafter referred tas thefinal report.
Y Interimreport,EMR/ERWG/2, p. 9; Finalreport,p. 7. WRI~TEN STATEMENTOF THE UNITED STATES OF AMERICA 187

authoritative and impartial advice,whether theAssemblycouldlegallymove the
EMRO from Egypt without regard to the notice provision of Section 37 of the
Host Agreementwith Egypt.On theone hand, Egyptand others maintaincd that
the WHOcouldmovetheofficeout of Egyptonlyif it firstgavetwoyears'notice

of what would arnount to denunciation of the Host Agreement. On the other
hand,some States contendcd that Section37 of the Agreement applied only to
negotiationsover a change in the privilegesand immunitiesof WHO officiais in
Egypt, and that it would not apply to a decisionby either Egypt or the WHO to
move the Regional Office. In order to rcsolve the difference of vicw on the
applicability of Section37in a way that would assure the legalityof any action
which the WHO might decide to take, the United States introduced the resolu-

tion referring the present questions to the Court.
On 20 May 1980,theAssemblyapproved the United States resoluiion.which
postponed any decision on removal of the regional office until after the Court
givesits advisory opinion on the questions submitted to it. Byrequesting defi-
nitive guidance on the requirements of international law before taking any
action, the Assernbly acted to maintain a standard of legal integrity in its
relationship with its member States.

INTERmT OF THE UNITEDSTATES

TheUnited Statesishost totheUnited Nations, theOrganizationofAmerican
States, twoSpecializedAgenciesof the United Nations l,a regionalofficeof the
WHO, and other officesof international organizations =.Accordingly,the Uni-
ted States has a strong interestin the lawful determination of legal questions
bearing on relations between international organizations and host countries, as

well as a special concern with the problems and costs associated with the
possibility of sudden and disorderly removal or expulsion of the officesof an
international organization from a hosi State. It is for these reasons thatthe
United Statesbelievesit appropriate that it commenton thequestionssubmitted
to the Court by the World Health Organization.

STATEMENTOF LAW

1.The Provisions ofSection 37of the Host Agreementof 25 March 1951Are
Applicable to any Removal of the Eastern Mediterranean Regional Office
(EMRO) from Egypt

The argument made in the Assembly against the applicability of the denun-
ciationclause to removalof the EMROfrom Egyptwasbasedon the contention

that the Host Agreementdots not commit theWHO toestablishor maintain the
office thcre. Cited in support of this contention wasthe fact that the agreement
is not entitlcd "Headquarters Agreement" or even "Host Agreement", but
instcad :

"Agreement between the World Health Organization and the Govcrn-
ment of Egypt for the purposes of determining the privileges.immunitics

1The InternationaiMonetarvFundand theInternationalBankforReconstniciion
and ~eielo~rnent.
2 Including,inlerdio. the Inter-AmcricanDevelopmentBank,the International
Telecommunications Satelliteraanizaiion.theInternationalSecretariatfor Volunteer
Service.andthe Internationa~gciiicHalibut Cornmissian.188 INTERPRETATION OF AGREEMENT

and facilitiesto begranted inEgyptby theGovernment to theOrganization,
to the Representatives of its Members and to its Ewpertsand Officials."

It was contended that the Host Agreement is not a "headquarters agreement",
but is instead merely an agreement by which Egypt extends pnvileges, immu-
nities and facilitiesto the WHO and officiain Egypt. Sincethe extensionof
these pnvileges and immunities was not expresslyconditioned on the mainte-

nance of the EMRO inEgypt and could,itwassaid,continue with respecttoany
WHO official who happened to be in Egypt, it was argued that the agreement
created no rights or obligations with respect to the location of the Regional
Office.
According to this argument, since the Agreement is solely concemed with
pnvilegesand immunities,removaloftheRegionalOfficefromEgyptisneither a
revision nor a denunciation or termination of the Agreement. Consequently,
Section 37 does not apply to the establishment, maintenance or removal of the

EMRO,whichare matters separatefromthe privilegesand immunitiesregulated
in the Host Agreementand whichare govemed either by another agreement or
by no agreement at al]Therefore, it was maintained thaWHO was free to
remove the EMRO from Egypt at any time without giving any prior notice to
E~YP~.
The United States submits that such an interpretoftheHost Agreement
would defeat its primary object and purpose. That purpose wasto establish the

conditions under whichtheEMRO wouldbe maintained in Egypt, including the
pnvileges and immunities of WHO personnel and delegations from member
StateslRemovalof theEMROfrom Egypt,by rendering theAgreementalmost
entirely ineffective,would be tantamount to denunciaiion. Section 37 makes
clear that suchactionwascontemplated onlyupon twoyears'noticeto the other
Party.

A- THE HOST AGREEMEN IS A"HEADQUART ERGSREEMEN WT"HOSE TERMS
INDICAT THAT THE PARTIEI SNTENDEE DMRO TO BELOCATE IDEGYPT FOR
THE DURATION OF THE AGREEMENT

Headquarters agreements are "international instruments defining the legal
status of an International Organization or of one of its bodies in the State on
the territory of which it has it2".Some are styled "Headquarters Agree-

hilethe Host Agreemenptarticularlyaddressesprivilegesand immunitbesto
extendedby Egypt, itis an Agreementwhichimposes obligatioon both parties.
Obligationsareimposed upon theHO by, inter alSections26,31,32, 33 and 34.
MoreL.Bota,"TheaCapacityof InternationalOrganizaiionsto ConcludeHeadquarters
Agreements,andSomeFeaturesof theseAgreements",iK. Zemanek,ed.,Agreements
of International Organizatiom and the ViennnConventionon ofeTreaties, p. 57
(1971).Bota citestwo similar definit:"accords conclusentre une organisation
internationale ettat danslebut d'établirtatutdecetteorganisationdans1'Etat
OU elleasonsiégetdedélimitelrespnviltgesetimmuniqsuiluiseront accordésainsi
qu'Asesfonctionnaires",CahiEtudedesaccordsdesiègeconcltaentrelesorganisarions
inrerno!ionaleset lesoiellesresident,p. 1(19and "Gliaccordidirettiadefinire
Io statut0giuridicodi una organizzazOdi unsuoorganodecentratoneli'ambito
dell'ordinamentointernodegliStatiMembned eventualmente anche deglsitati non
membriincuiabbianosedeecibtantoinvistadiunfumionamentoduraturo,quantoin
vistadi reunionia carattereprovisorio",SoCli accordi internazionaliorga-e
nizzazioni intergovernative.p. 83 (1962). WR~TTENSTATEMENTOF THE UNITED STATES OF AMERICA 189

ment" and some are not 1,but, regardless of title, they al1cover the same main
points. Those points are, as authoritativeiy listed by the lare C. Wilfred
Jenks :

"the immunity of international institutions from suit and legal process ;the

inviolability of their premises and archives ; the imrnunity from civil and
criminal jurisdiction of delegatesand senior officials ; the immunity of al1
officials from suit and Iegal process in respect of their official acts ; the
exemption of international funds from national taxation and exchange
controls ; appropriate postal and telecommunication facilities, including
the exemption from censorship of official correspondence ; appropnate
travel facilities, including the issue of diplornatic or officid passports and

visas ; appropriate exemption from immigration, alien registration, and
similar regulations and restrictions ;the general principle that facilities for
the conduct of officid business which States make available to each other
individually should also be made available to international institutions as
theorgans through which Statesact collectively ;and a number of miscel-
laneous facilities and courtesies 2".

Examination of the WHO-Egypt Host Agreement showsthat it covers essen-
tially the same points as a typical headquarters agreement, and confirrns that its

sole raison d'êtreis to deal with the special problems and circumstancescreated
by the maintenanceof the organization's seat in Egypt '.Indeed, since Egypt was
already a party to two treaties generally providing for the pnvileges and immu-
nities of WHO officials 4. the only conceivable reason to enter into another
agreement wasspecifically to provide alegal régimefor the EMRO office.This is
illustrated by the report of the WHO Legal Committee to the first World Health
Assembly, which stated that WHO was justified in entering into Host Agree-
ments because :

"Section 39 of the Convention {on Privileges and Immunities of Spe-
cialized Agencies] permits any specialized agency to enter into special
agreements with States in which such agency has its headquarters or
regional offices 5."

It is true that some headquarters agreements state the parties' agreement
to locale the headquarters in the host country more expressly than do the

Headquarters agreements that are not titled "Headquarters Agreement" include
the agreements between Switzerlandandthe IL0 and Switzerland and the WHO on
which the host agreementsfor WHO'Sregionaloffices aremodelled.Thesewerecer-
tainlyconsideredheadquartersagreementswhenthey weremade.SeeStatement of US
representative toWHO Intenm Commission of 31March 1947, WHO IC/Min.3/2.
Compare those agreements withthe Agreementof 26 June 1947 between the United
States and the United Nations, UNTS, Vol. 11, p. 11.
C. W. Jenks, The Heodquartersof Inrernazional Instituzions: A Study of Their
Locationand Stotur, p. 45 (1945).
See,e.g., the followingarticlesof the Host Agreement :Art. II (jundical person-
ality);Art. III (freedom of action and speech) ;Art. IV (property,funds and assets) ;
Arts.VI1 and VI11(privileges and immunities) ; Art. IX (immigration and office
facilities)Art. X (secunty).
' The Conventionon the Pnvilegesand lmmunitiesof theSpecializedAgencies,and
the Agreement for the Provisionof Services bythe WHO in Egypt, op.cit.
5 WHO, OfficiaiRecorh No. 10, p. 109.190 INTERPRETATIONOF AGREEMEKT

WHO's host agreements. For example, the headquarters agreements between

the United States and the United Nations l and between Austria and the
International Atomic Energy Agency specifically provide that the head-
quarters shall be located in the host country and make explicit provision
that it remain there until othenvise decided by the international organization
involved 3.

However, other headquarters agreements contain no such provisions, but
merely refer generally to the legal status of the organization or to a decision to
establish the office there.Therefore,thefact that the Host Agreement does not
contain language as specific as that in someother agreements cannot justify an
inference that Egypt and WHO deliberately structured something less than a

headquarters agreement for the Regional Office in Egypt.
In fact, both Egypt and the WHO have recognized that the host agreements
are headquarters agreements. Egypt, when it considered signing the Agree-
ment, made it clear that it considered the Agreement sirnilar in character
to the Headquarters Agreements of WHO and Unesco5. The WHO, in

its reply to a questionnaire circulated by the International Law Commis-
sion in connection with the preparation of the draft articles on treaties be-
tween States and international organizations or between international
organizations, used the phrase "accords de siège" to descnbe the host agree-
ments 6.

In determining what rights and obligations a headquarters agreement creates
with respect to thelocation of anoffice, an international tribunal mustlook first

' Agreement of 26 June 1947, UNTS, Vol. 11, I1.
Agreement of 1I December 1957. UNTS, Vof.339, p. Iiû.
See also the Headquarters Agreement between France and Unesco, signed 2 July
1954,UNTS. Vol.357,p. 3. Someheadquarters agreements,whether or not they rnake
specific provisions for the location of the office in the host country. make specific
arrangements regarding the building the officewilloccupy,e.g..Agreement of 18Octo-
ber 1965between ICA0 and Thailand, UNTS. Vol.707, p.299 :Agreement of 22 De-
cember 1966 between the Philippines and the Asian Devefopmcnt Bank, UNTS,
Vol.615, p.375.
Agreement of 10 March 1955between WMO and Switzerland, UNTS, Vol.211.
p.277 ; Agreement of II March 1946between Switzerland and ILO, UNTS, Vol. 15,
p. 377 ; Agreement of 21 August 1948 between Switzerland and the WHO, UNTS,
Vol.26, p.331; Agreement of 18June 1958between Ethiopia and the United Nations
regarding the Headquarters of UNECA, UNTS, Vol. 317, p. 101 ; Agreement of
26May 1954betweenthe United Nations andThailand concerning the Headquarters of
ECAFE, UNTS. Vol. 260, p. 35 ;Agreement of 25 July 1952 between the United
Nations and Japan, IINTS, Vol. 135,p.305 ; Agreement of 29 June 1951 between
Switzerland and the IBRD, UNTS, Vol.216, p. 347.
' The Egyptian Govemment, in its study of the proposed Host Agreement, decided
to consult other agreements it considered to be similar - that is,"concluded, or in the
courseof conclusion. between anumber of States and certain SpecializedAgencieson
the occasion of the latter taking up any of the said States as their seats or upon the
establishment of Regional Offices in their territories". Mernorundurnon Privileges,
Imrnunifiesand E.~ernptiom O]the RegionalOfliceof the World lleolth Organizotion,
prepared by the Contentieux of the Egyptian Ministry OFForeign Affairs and Justice,
p. 53, rqra.
E.g.,"L'accordde siégeconcernant lebureau régionaldel'Afrique"at para. 6of the
WHO'Sreply.The replywas toa questionnaire circulated to international organizations
by the Commission's Special Rapporteur, Professor Paul Reuter. The replies are
unpublished, but the United Statesunderstands that theO'sreplyhasbeen supplied
to the Court by theWHO. [See pp. 104-108, supra]. WRITTEN STATEMENTOF THE UN1TED STATES OF AMERICA 191

to thewords of theagreement,interpreted in context and inthe lightof theobject
and purpose of the agreement 1.In this regard, it is axiomatic that the tribunal
must consider the agreement as a whole 2.
If the language of the agreement, taken as a whole, expresses a common

understanding of the parties that the officewill be located in the host country
unless otherwise agreed or unless the treaty is properly terminated, then the
written expressionof that common understanding is,inessence.an agreementof
the parties to establish and maintain the office there until the agreement is
terminated in accordance with its own provisions or with the mles of interna-
tional law concerning the termination of treaties.
Examination of the language of the Host Agreement betweenthe WHO and

Egypt indicaies that the intention of the parties was that the EMRO be main-
tained in Egypt. The preamble States that the purpose of the Agrecment is to
determine the privilegesand irnmunities to be given WHO officiais and repre-
sentativesin Egypt, "in particular with regardtoits arrangements in the Eastern
Mediterranean Region". The WHO'S"arrangements" in the Eastern Mediter-
ranean regionrefer,of course,to theEMRO officeinAlexandriaand to meetings
takingplace there. Section I (v) of the Agreement specificallyrefcrs to "the

Regional Office in Alexandria", Section25 provides for the privilcgcs and
immunities of "the Regional Director in Egypt and his Deputy". Sections 17
and 19of the Agreement refer to meetingsof the Organization in Egypt, which
would be held there only because of the location of the Regional Office. Sec-
tion 6 refers to the "premises of the Organization in Egypt", obviouslymeaning
the Regional Office. Section 30 assures that electncity, gas and watcr. and
refuse removal will be provided to "[tlhe Organization . . .in the premises
placed at its disposal". This provision is not conccrned with privileges and

irnmunities at dl, but can only refer to services supplied to the Regional
Office. Even more important, Section30 commits Egypt to ensuring ncces-
sary police protection "for the protection of the seutof the Orlgcl~iti~tinand
for the maintenance of order in the immediate vicinity thereoi". Without
the EMRO office, of course, there would be no "seat of the Organization" in

E~These provisions. and others, plainly contemplate the establishment and

maintenance of the EMRO in Egypr. They provide written expression of the
parties'comrnon expectationandunderstanding that theofficewould be located
there during the life of the Host Agreement, and that the purpose of the agree-
ment was to establish the conditions under which the office would be rnain-
tained.
It ispossible.of course, to write a headquarters agreement in such a way that,
although the headquarters is mentioned. the parties disavow the creation of
obligations regarding its location. The headquarters agreement of the United

See Art. 31.Vienna Convention on theLaw af Treaties; Art.31,draft articks
concerning treaties concluded between States and internationalorganizationsor
betweeninternationalorganizations, Report of the InternationalLaw Commission.
UNGA. Ofl .ec.,Supp No. 10(A/34/10).
"in considering thequestiobneforethe Court upon the languagoeftheTreaty.itis
obviousthat theTreaty must be read as a whole,and that its meaning isnot to be
determined merelyupon particularphraseswhich,ifdetachedfrornthecontext,may bc
interpreledin morethanonesense." Comperenceof the IL0 inAgriculiumlQuestions.
Advisory Opinions,1912,P.C.I.J.Series B,Nos.2 and J,p.23.SeealsoMcNair, Inw of
Trearier.pp.381-382 (1961) and sources citedtherein.192 INTERPRETATION OF AGREEMENT

Nations 'as well as those of the International Atomic Energy Agency in Aus-
tria2,the International Civil Aviation Organization in Canada3,and anumber
of headquarters agreements entered into by the United Kingdom ', expressly
allowonly theorganization to remove the office,and provide thatthe agreement

is terminated when the office is removed, except for those provisions applicable
to an orderly removal, A headquarters agreement d this type contemplates thal
the organization can terminate the agreement by removing the office. It thus
embodies no mutual expectations that the office willbe maintained in the host
country until theparties agreeotherwise or until the agreemenisterrninated by
other means.

The WHO-Egypt Agreement, however, does not provide for termination by
removai of the Office, but expressly provides in Section 37 that unilateral ter-
mination of theAgreementmust be preceded by twoyears' notice.The language
of the Agreement indicates a common understanding that the Office would
remain in Egypt for the duration of the Agreement. The Agreement expresses
mutually agreed expectations - that is, rights and obligati-nsconceming the

location of the Office.
Accordingly, the parties agreed in the Host Agreement that theRO would
be maintained in Egypt. It follows that removal of that Office, iike any other
attempt to rnodify or denounce the Agreement, is governed by Section 37. The
party wishing to change the existingarrangement would be required to negotiate
with the other party, and, if negotiations failed, give two years' notice of
denunciations.

B. THERE ISONLY ONE INTERPRETATION OF THE HOST AGREEMENT
THAT CIVESEFFEC TO SECTIO3 N7 AND TO THE OBJEC TND PURPOS EF
THE AGREEMENT

The pnnciple of "effectiveness", expressed by the maxim utres mugis valeat

quompereat, isan established and fundamental principleof treaty interpretation.
Simply stated, it means that a treaty provision should be interpreted. so asto
render it effective, not ineffective or illu5.A more precise definition was
included by the Special Rapporteur, then Professor Sir Humphrey Waldock, in
his draft articles on the law of treaties submitted to the International Law
Commission in 1964 :

' Agreementof 26June 1947, UNTS, Vol.11, I1.
Agreement of 1IDecernbcr1957, UNTS, ~or.339,p. 110.
Agreementof 14April 1951,UNTS, Vol.96, p. 155.
Agreementof 28November1968between the UnitedKingdom and the Interna-
tionalWheatCouncil, UNTS. Vol.668, p.3 : Agreementof28 May 1969between the
United Kingdom and theInternationalCoffeeOr~anization. UNTS. Vol.700. o. 97:
Agreement of 29May 1969between the UnitedGgdorn and thelnternationalasugar
Organization,UNTS.Vol. 700, p.121.
Thisistakenfromaclassicdefinitionbv Vattel:"L'inte~c--~---no'irendraitun
acte nulet sans effet nepeut donc êtreadmi...il faut l'interprdeemanière&il
puisseavoirson effet,qu'ilne setroupas vaietillusoire."VatteLedroit des gensou
principede lu loi naturelle appliquésci lu conduiuuxeufluires des notions des
roitverainSec.283.For a list of citati10sother authorities,from Grotiusonward,
whodiscussthe principle, seeV.D. Degan, L'interprétafiundes accords en droit inter-
narional,pp.102-103(1963),and H. Lauterpacht,"RestrictiveInterpretation andthe
PrincipleofEîfectivenessin theInterpretationofTreaties",XXVBritish Year Bookof
JnrernationulLaw, p. 4(1949). WRITTEN STATEMENTOF THE UNITED STATESOF AMERICA 193

"a term of a treaty shall beso interpreted asto give it the fullest weight and
effect consistent -

(a)with its natural and ordinary meaning and that of the other terms of
the treaty ;and
(b) with the object and purpose of the treaty '".

The effectiveness principle is especially important in situations in which the
parties may not have clearly expressed their mutual intention, since. in such
situations, it allows a tribunal to look at the object and purpose of the treaty in
order to give effect to that purpose. In the words of another Special Rapporteur

of the International Law Commission on the law of treaties, Judge Sir Hersch
Lauterpacht :

"[The principle of effectiveness] is a major principle, in the light of which
the intention of the parties must be interpreted even to the extent of
disregarding the letter of the instrument and of reading into it sornething
which, on the face of it, it does no1contPin- so long as that 'something' is
not contradicted by available and permissible evidence of the intention of
the parties ?."

Both the Permanent Court of International Justice and this Court have
recognized theprinciple ofeffectiveness J,and have applied itto giveeffect to the
intention of the parties. The Permanent Court, for example, in Acquisition of

Polish Nu~ionnliiy,Advisory Opinion,1923,P.C.I.J.,Series B,No. 7.p. 17,stated
that :
"[Tlhe Court has already expressed the view that an interpretation which

would deprive the MinontiesTreaty of a great part of its value is inadmis-
sible."

Similarly, in Reservurion sorhe Convenrionon ihePrevenrion und Puiiishmeni of
rheCrinteojGenocide, Advisory Opinion, I.C.J.Reports 1951, page 24,this Court,
in holding that the purposes of the Genocide Convention required that ccrtain
reservations be allowed to the Convention. cven though there was no express
provision for them, stated :

II ~e~rhookafrhelnterna LuwiCnomlmission1964.p. 53.TheCommissionlater
decided that themaxim utresmugisvalealquunipereut should notformthesubjectof a
separate article. but onlybecauseitwas considered io be includedin the principleof
interpretation in goodfaith.II Yearbook O/ rhe Internutionulhw Conimission1966,
pp. 172,219. SeeL. M. Sinclair,The ViennaConventionon the Lnw of Treuties.p.75
,--7'-,'
H. Lauterpacht, The Developmentof InrernotionulLuw & the InternationulCourt.
p. 228 (1958); see dso H. Lauterpacht, "Restrictive Interpretation"op. cil.
-There are numerous caseswhichapply or discuss this ruleof interpretation. For
discussionof them, see H. Lauterpacht, The Devt.lopmentof InternationulIMW,ihid,
Chaps. 14and 19 ;H.Lauterpacht,"RestrictiveInterpretationsW,ihid.:McNair, I~wof
Treaties.Chap. XXI (1961); T. O.Elias.TheModernLowTreafies,' 71 -.8(1974) ;
J. F.Hogg, "The International Court :Rulesof Treaty Interpretation". 43Minn. 1-
Rev., p.369,and 44 Minn.1, Rev.,p.5 (1959) ;G. Haraszti, Some FundanrenfuP l rob-
lem ofthe IAWoJTreuties, pp. 166-173(1973).See dso G. Fitzmaunce, "The Law and
Procedure of the International Court of Justice".XVlIl British YearBookof Inter-
nationul IAW. p. 18-20 (1951) : G. Fitzmaurice, "The Law and Procedure of the
Internaiionai &urt of Justice". XXXIlI Briti~h Yeur Book ojInrernoiiowl Iliw.
pp. 220-222 (1957) ;and E.Lauterpacht, "The Devclopmentof the Law of Inierna-
tional Organizations by the Decisionsof International Tribunals".Recueildes cours.
Vol. IV, 1976,pp. 420-444.194 INTERPRETATION OF AGREEMENT

"The object and purpose of the Genocide Convention imply that it was
the intention of the General Assembly and of the States which adopted it
that as many States as possible should participate. The conlplereexclurion
from the Converirion O/ oneor nioreSiares would notonlyresrricithescopeof
its upplicarion,but wouldderracr/rom rheaurhorityof themoral andhumuni-
rariu~zprinciples whichore ifs busis. It is inconceivablethar the contracting

parties reodily conremplutedthut on objection to a minor reservutionshouId
produce such a result."(Emphasis added.)
Of course, the doctrine of effectivenessdoes not giveinternational tribunals
unlimited discretion to extend the meanings of treaties in the name of making

themeffective.Judicialdiscretion islimitedby the intention of the parties to the
agreement, asmanifested by the words of the treaty and its object and purpose.
Thus, as this Court stated in Interpretarion of Peace Treuries wiih Bulgriu.
Hungory and Ronirinia, Second ~hafe, ~dviso& Opinion. I.C.J. Reports-1950,
p. 229 :

"The principle of jnterpretation expressed in the maxim : ur res niagis
vuleurquontpereat, often referred to as the rule of effectiveness, cannot
justify the Court in attributing to the provisions for the settlement of
disputes in the PeaceTreaties a meaning which.as stated above. would he
contrary to their letter and spiritl."

If an interpretation iscontrary to the clear meaning of the treaty itseif or to the
intent of the parties as determined from al1sources,then it would not bc proper
to revisethe treatyunder theguise ofmakingiteffective.On theother hand, ifthe
wording of the treaty docs not clearly prcclude an effective interpretation

reflecting theintent of the parties, that interpretation isto be preferred. Inother
words, as stated by the International Law Commission :

"When a treaty is open to two interpretations one of which docs and the
other does not enable the treaty to have appropriate effects, good faith and
theobjectsand purposesof the treatydemand that theformerintcrpretation
should be adopted ?."

Section 37 of the Host Agreement betaeen the WHO and Egypt would be
rendered illusoryby an interpretation that would alloweither party to remove

the EMRO from Egypt without following its provisions. The language of the
Host Agreement, including its several references to the functions of the Alex-
andna Office,makesitclear that theobject and purpose of theAgreementwasto
create a legal régimefor the operation of that Regional Office, not merely for
whatever operations the WHO might otherwise have in Egypt. It is equally
apparent that Section 37 of the Agreement is meant to precludc cither of the
parties to the Agreement from suddenly and precipitately terminating thc legal
régimethey created.
There is only one conceivable reason why the parties needcd to be protected

against hasty termination of the Agreement and the legal regimcit established.
Termination wouldhave the effectof hringing about the closingof the Regional
OfficeinEgypt,becausewithout thefacilitiesprovided in theAgreement - legal

Seealso. Oscar Chinn. Judgnienl. 1934. P.C.I.J.Series A/ B, No. 63. p. 65.
Commentary on Art.28of thedralt Vienna Convention on theLaw of Treaties,II
Yeurbwk of the Inrernurionu lVW Contmissgio n966. p. 219. Seealso. Elias.op. cil..
p. 74. 195
WRIITEN STATEMENTOF THE UNITED STATESOF AMERICA

status, pnvileges and immunities,policeprotection, electricity,water, and gas-
the Office could not function. Time would be needed to effect an orderly
removal. It is impossible to believe that the parties would deliberately create a
mechanism to provide time for transition arrangements to be made before
terminating theAgreementand closingtheOffice,whilesimultaneouslyallowing
a party to bring about closure, unilaterally and without any waiting period,
simply by expelling or removing the Office from the terntory of the host
State.
Suchan interpretation would lead to manifestly absurd results. For example,
Egypt, if it wished legally to evade its obligation to admit certain States of the

region to regiqnal meetings,or to supply water or electncity to the Office,could
order the immediate expulsion of the EMRO fromits territory, thus vitiating the
two-yearnotice requirement. Similarly,ifWHO decided to denounce the Agree-
ment on two years' notice,Egrpt would nonetheless befree to order the imme-
diate evacuation of the Office,thereby dismpting any orderly transition. On the
other side of the coin, if Egypt denounced the Agreement on two years'notice,
the WHO could remove the Office forthwith and so deprive Egypt of the
adjustment timecontemplated by Section37. In effect,either party would havea
means of terminating the effectivenessof virtually al1provisions of the Agree-

ment without observing the notice requirement of Section37. If either party to
the Agreement werefree to remove the Officewithout notice, Section 37would
have littie or no practicai meaning or effect.
Similarly,the referencein Section 37to denunciation by eitherparty wouldbe
meaningless if Section 37 wereinterpreted not to apply to removal of an office.
Egyptcould conceivablylivewithaninternational organization that did not have
the protections supplied by the host agreement,but no international organiza-
tion would be likely to terminate the legal régimefor a headquarters while
planning to keep the headquarters in the host country '. It is apparent that

Section 37 was intended to regulate the manner in whicheither party could end
the existing host arrangement in the event that it became dissatisfied with that
arrangement and wasunable to securesatisfactory changesthrough negotiation.
But if the dissatisfied party were the WHO, and if it failed to secure desired
changes, its only real choices would be to continue under the unsatisfactory
régimeor to remove the Regional Office. Accordingly, if Section37 does not
regulate the rnanner in which the WHO may exercise its right to remove the
EMRO, a two-yearnotice and denunciation requirement for the WHO is for al1
practical purposes meaningless.
There isnothingin thelanguageof the Host Agreement,or in theintentions of
the parties, that stands in the way of an interpretation that would make the

Agreement effective,The Agreement may not be so welldrafted that it removes
al1doubt about whether Section37 applies to the removal of the EMRO, but it
does not evensuggestany deliberate decisionto allowthe EMRO to be removed
or expelledwithout notice. Moreover,aswillbe discussedbelow,common sense
and international practice, aswellas the historyoftheWHO'Shost agreements,
indicate that the parties intended that Section 37 apply to removalof a regional
office from the host State.

'Aninternationalorganization rnightconceivablydo so if thlegal régim n effect
were no betterthan the absenceofany specialrégimeatdl. There ishowever,nobasis
for thebeliefthathe WHO tooksucha viewof theEMRO régrne.On thecontrary.the
WHO signedthe Host Agreement because a special regimwas ihoughtessential.196 INTERPRETATIONOF AGREEMENT

It took the Executive Board's Working Groupone year to completeits study of
the implications of moving the EMRO from Alexandria. The study concluded
that the move would cost between US$1,361,100and US$4,358,300depending
on wherethe newoffice wasestablished '.Approximately 50professionals would
have to be relocated, and 100general service employees would probably lose
their jobs2.In addition,the move would disrupt the work of the regional office,
with potentially serious effects on the implementation of the Organization's

technical CO-operation programme 3.These factsillustrate that, evenwith regard
to a smail regional office such as the EMRO, removal of an office involves
difficult administrative, logistical and financial problems, and entails serious
economic and human impact on both the host State and the international
organization involved.
Common sense and practicality therefore suggest that it is unlikely that an
international organization or host State would deliberately sign an agreement
that would allow either party to force sudden and unplanned removal of a

headquarters or regionai office. In fact, since removal of an office requires
considerable time to be carried out successfully, it is precisely the type of
situation for which a notice period would logicaily be intended.
This conclusion is supported by international practice. International organi-
zations and host Stateshave used several differentmechanisms toprovideforthe
termination of headquartersagreementsand the removal ofheadquarters, but, to
the knowledge of the United States, theyhave never deliberately left both parties
to an agreement free unilaterally to remove a headquarters or regional office

without some degree of protection, forboth the organization and the host State,
from the consequences of sudden termination of the headquarters arrange-
ment.
Host and headquarters agreements fall into three categories 4.The first cate-
gory includes agreements, such as the agreement between Austria and the
International Atomic Energy Agency 5, that contain a denunciation provision
similar to the following :

EB65/19,Add. 1,Annex 2, pp.6-7.
EB65/19,Rev.1,Annex2, pp. 3-4.
EB65119,Rev.1,p. 9.
the IL0 whichdprovidethat theyshailremaininforceaslongas theofficeremainsinthef
host country,and appear toallude toseparateunderstandings concerningthelocation
of theofficeinthehost country.Theseagreements,whichappear tohavebeenusedonly
by theILO,concernsmallfieldoffices,not theheadquartersoforregionalofficesof the
ILO.Thefieldofficesinquestion generailyconsistoffiveorsixpersons.SeeAgreement
of 6 April 1967 between theIL0 and Algena, UNTS, Vol.595,p. 99 ; Agreementof
7 May 1967between theIL0 and Cameroon, UNTS, Vol. 596, p. 209 Agreementof
14May 1966 between the IL0 and Lebanon, UNTS, Vol. 600, p69 ; Agreement of
21November 1962between theIL0 and Ceylon, UNTS, Vol. 449, p263 ; Agreement
of 14January 1959between the IL0 and Nigeria(UK), UNTS,Vol. 355, p. 283.
The host agreementsfor the ILO'sregionaiofficescontain provision for noticeof
termination. See Agreement of 1 November 1961between Thailand and the ILO,
UNTS, Vol. 422,p.125; Agreement of 22June 1960betweenPeruand the ILO, UNTS,
Vol. 423,p. 175.[Seepp. 123-124, supra.]
Agreementof II December 1957, UNTS, Vol. 339,p.110. WRIlTEN STATEMENTOF THE UNITED STATES OF AMERICA 197

"This Agreement shall ceaseto be in force :(i) by mutual consent of the
IAEA and the Government ;and (ii) if the permanent headquarters of the
IAEA is removed from the territory of the Republic of Austria, except for
such provisions as rnay be applicable in connexion with the orderly termi-
nation of theoperations of the IAEA at its permanent headquarters in the

Republic of Austria and the disposd of its property thereinl."

In some cases these agreements expressly provide that theoffice shall remain
in thehost country untilremovai bytheorgunizution; othersmay permit rernoval
by the host country as wel12. Nevertheless, al1of them protect both the host
country and the organization from precipitate removal of aheadquarters office,
since, in the event of such a removal, they expressly provide for continuation of

key obligations dunng an indeterminate transition period.
The second, and most nurnerous, category of headquarters agreements
includes those that, like thWHO agreements, contain notice requirernents. The
notice requirernent issometimes, but moreoften not, coupled with astipulation
that provisions applicable to an orderly termination will continue in force aïter

the notice penod has expired -'.The same notice requirements are found in
agreements that expressly and unmistakably concern the establishment and
maintenance of a headquarters (sometimes even including specific building lease
arrangements) as well as in others like thWHO host agreements, in whch the
relevant language is arguably more ambiguous 4.Since al1 host countries and

Sec.52, UNTS, Vol. 339,p. 171.
The Austria-IAEA Agreement reservesthe right of removal only to the organiza-
tion, as do the Agreement of 13April 1967between the United Nations and Austria
regarding Headquarters of UNIDO, UNTS, Vol.600, p. 93, and the Agreement of
22 December 1966between the Philippines and the Asian DevelopmentBank, UNTS,
Vol.615, p. 375.An Agreement that contains a simifartermination clause,but does not
expressly reserve removal to the organization, is the AgreementO! 14 April 1951
between Canada and the ICAO, UNTS, Vol. 96, p. 156.See also the agreements with
similar clauses discussed in Section 1-A.
Agreements with a notice requirement plus an "orderly termination" provision
include : Agreement of 30 November 1965 between UNICEF and Chile, UNTS,
Vol.396, p.215 ;Agreement of 18October 1965between ICA0 and Thailand, UNTS,
Vol. 707,p.299 ; Agreementof 18June 1958between the United Nations and Ethiopia
regarding the headquarters of UNECA, UNTS, Vol. 317, p. 101 ;Agreement of 1No-
vember 1961between Thailand andthe IL0 regarding the IL0 Liaison Office with
ECAFE, UNTS. Vol.422,p. 125; Agreement of 6 September 1961between Thailand
and Unesco concerning the Asian Regional Office, UNTS, Vol.410, p. 125.
Besidesthe WHO agreements and the IL0 agreement on which they weremodelled,
agreements that contain a notice provision withoan "orderly termination" require-
ment include : Agreement of 24 July 1968between Denmark and the International
Councilfor the Exploration of the Sea, UNTS,Vol.657,p. 159;Agreementof 14April
1967between France and the MalagasyCoffeeOrganization, UNTS,Vol. 717,p. 297 ;
Agreement of 10March 1955 between Switzerlandand the WHO, UNTS, Vol.211,
p. 277 ; Agreement of 14December 1946between the United Nations and the Swiss
Federal CoLincil,UNTS, Vol. 1,p. 163 ;Agreement of 22 June 1960between the IL0
and Pem, UNTS,Vol. 423,p. 165; Agreementof 20 December 1956between theICAO
and Mexico, UNTS, Vol.497, p. 3 ; Agreement of 27August 1953between Egypt and
the ICAO, UNTS, Vol.215, p. 371 ; Agreement of 25 July 1952between the United
Nations and Japan, UNTS, Vol. 135, p.306 ; Agreement of 5January 1955between
Mexico and the ILO, UNTS, Vol.208, p. 225 ; Agreement of 29June 1951between
Switzerland and the IBRD, UNTS. Vol.216, p. 347.
' Agreements with unequivocal establishment rovisions coupled with a notice
requirernmt include : Agreement of 18October IPbfbetween Thailand and the ICAO,
UNTS, Vol. 707,p. 299 ; Agreement of 5 January 1955between the IL0 and Mexico,198 INTERPRETAT~ON OF AGREEMENT

international organizations thatenter into headquarters agreements have similar
essential interests to project, it is not likely (and there is no evidence) that the
various countries and organizations involved in these agreements employed
identical denunciation provisions with very different purposes in mind. It is
much more reasonable to assume that al1the denunciation clauses were meant to
accomplish one cardinal purpose - to prevent removal of the office without

sufficient time for orderly termination and relocation of its lunction.
The third category includes agreements, such as the headquarters agreement
between Unescoand France ',that contain no provision foreither removal of the
office or termination of the agreement. Since they contain no denunciation
clause, such agreements arguably cannot be denounced except in accordance
with general international law. Under this view, if the agreement provides for
establishment of a headquarters, neither party would generally have the right to
remove it. However. in commenting on the draît articles on treaties concluded

between States and international organizations or between international orga-
nizations, the Special Rapporteur of the International Law Commission has
taken the view that headquarters agreements, because of their nature, "seem to
be denounceable" since :

"[Flor an international organization, the choice of its headquarters rep-
resents a right whose exercise is not normally immobilized ;rnoreover, the
smooth operation of a headquarters agreement prcsupposes relations of a
special kind between the organization and the host State, which cannot be
maintained by the will of one party only l."

Significantly, even in indicating that international organizations may have an
implied right to move their headquarters, the Commission provided that the
exercise of that right should besubject to a one-year notice requirement 3.This

UNTS, Vol.208,p. 225 ;Agreementof 6September 1961between Unesco and Thai-
land, UNTS, Vol.410, p. 125: see also Agreement of 20 necember 1955 between
Mexicoand the ICAO, UNTS, Vol. 497.p.3 ;Agreementof 1 November 196 1between
Thailand and the ILO, UNTS, Vol.422, p. 125.
Notice provisionscan alsobe usedwhen an agreement expresslyailowsthe organi-
zation totransfer theofficefrom thehost State.For example,theIL0 Agreementwith
Turkey concerning the Manpower Field Officercads :
"The Officeshallbe freeat itsdiscretion, to transfer the ManpowerFieldOffice
lrom Turkeytoanyother country oraltogethertowindup theFieldOffice.In case
ofsuchtransferorwindingup,however,theoffice shallgivethe Governrnentthree
months' notice thereof and shall retum to the Governrnent, asthey stand, the
building and the furniture placed at its disposa1in accordance with Articl3
above." (Unpublished [seepp. 123-124,supra].)
l Agreement of 2July 1954. UNTS, Vol. 357,p. 3.See also Agreement of 22De-
cember 1966 between the Phili~oines and the Asian DevelonmentBank. UNTS.
Vol.615. p. 375. ..
Commentaryto Art. 56of thedraft articlesconcerning treatiesconcludedbetween
Statesand international organizationsor between international organizations,Report
of the international Law Commission, UNGA. O/l: Rec., Supp. No. 10(A/34/10),
p.436.This cornrnentarywas submittedbythe SpecialRapporteur andwasadopted by
theCommissionwithoutdiscussion.Whether or notit reflectscustomaryinternational
law, this commentaq applies onlyto those agreementswith no denunciation or ter-
mination provisions. not to those, like the WHO-Egypt Agreement, that expressly
provide a termination procedure.
See para.2 of Art. 56,ibid.p. 435. WRITïEN STATEMENTOF THE UNITED STATES OF AMERlCA 199

recognition of the unreasonableness of removaiof a headquarters without notice
is strong evidence that it is not plausible that the parties to a headquarters
agreement would knowinglyaliowsuchremovalwithout a noticeperiod or some
other form of protection from the consequencesof precipitate removal.
T'hus,in practice, international organizations and host countries have often

relied on the notice requirement or other transitional arrangements to protect
themselves[rom the risk of sudden and arbitrary removalof headquarters and
regional offices. The practice is sufficiently widcspread that the International
Law Commission has adopted a notice requirement as a protection in cases in
which headquarters agrcemenls wilhout denunciation clauses are denounced

pursuant to Article 56 of the draît articles on treaties between Statesand inter-
national organizationsor betweeninternational organizations. Itisreasonableto
assume that a country or international organization normally would not deiib-
eratelyconclude an agreement that leftboth of themvulnerableto removatof an
office without notice or other protection and that. when the WHO and Egypt
included the noticerequirement intheHostAgreement, theymeant it to apply to
removal of the Regional Office.
It isalsoworth noting that thepartiestothe WHO-EgyptAgreementprobably

would have been evenless likely than most to allow the Regional Office to be
suddenly removed or expelled from the host State. The Alexandria Sanitary
Bureau is one of the oldest "international organizations" in the world. Under
various names and authorities, it has performed international functions with
respect to health since 1831,and wasrecognizedas an international authority in
1852 in the first international sanitary convention l.Among its functions has
alwaysbeen theimportant taskofpreventingthespread ofepidemicsamongand

by travellers making pilgrimages to Mecca 2.It is difficult to believe that the
parties to the Host Agreement intended that the work of this venerable insti-
tution could be disrupted at will.

As alreadynoted, Section 37of the Host Agreement is modelled on language
onginally employed in the Headquarters Agreement of 1946between Switzer-
landand the International Labour Organisation and subsequentlyreproduced in
the Swiss-WHO Headquarters Agreement of 1949. While the WHO, as the
Organization requesting the Court's advisory opinion, has provided the Court
with the relevant historicaldata it has found concerningits headquarters agree-

ment with Switzerland, theIL0 has not been requested bythe Court to provide
any documentation in its possessionconcerningthepreparation and approval of
itsheadquarters agreement.The United States believesthat the intention of the

' InternationalSanitriryConvention, signed3 February 1852,Consolidafed Treuly
Series(Party),Vol. 107,Arts.74-75, p. 345.
For more detailedhistoryof the Alexandria office,seegenerallyN. Goodman.
InfernationulIfeollh 0rgu1riratiandsTheir Work. pp.234-237(1952) :Vetta, "Droit
sanitaire international",cueildescours.Vol. 33.pp. 545, 585-588(1930): Siampar,
op. cir.Memorandum of the Egyptian Minister of Public Health."The Pan Arab
RegionalHealth Bureau : 11Originand History",WHO, OfficialRecords,No. 6.p. 173
(1947).200 INTERPRETATIONOF AGREEMENT

parties to the latter agreement could only have been to require notice before
removalof the 1LO'sheadquarters Irom Switzerland.Sincethe notice provision
in that agreementis identical to,and wasthe mode1for, that in the WHO-Egypt
Host Agreement, any documentation conceming its meaning would be highly
relevant to the issuesbefore the Court. Accordingly,the United States requests
the Court to invite the IL0 toplace before it any documentation it possesses
bearingon the negotiationof the noticeprovisionof theILO-SwissAgreement ,

particularly as it may relate to possibleremova1of the ILO'sheadquarters from
Switzerland.
When Switzerlandand the Interim Commissionof the WHOused the Swiss-
IL0 Agreement as the mode1for negotiating the WHO'SWeadquartersAgree-
ment with Switzerland, the Interim Commission was concemed that the con-
clusion of such an agreement should not prejudice the rightof the permanent
governingbody of the WHO, once created, tolocateitspermanentheadquarters
outside Switzerland *.Thisconcern was, accordingto the WHOWorkingCroup
on the transfer of the RegionalOfficefor the Eastern Mediterranean, based on

the perception that, pursuant to such an agreement, "the Organization might
become contractually bound vis-à-visthe host country to maintain its offices
thereuntil proper termination of theAgreement '".Apparently in order to allay
thisconcern,Switzerlandassured the InterimCommissionthat. for the lifeof the
Commission,Switzerland would "continue theapplication of theAgreement. ..
even though the scat of the Organization isestablished outside Switzerland '".
The fact that this assurance was required indicates that tWHO recognizedat
an early date that the languageof the termination article, in the absence of the
assurance, woutd require notice and a transition period when theheadquarters
was moved.

When the Interim Commission went out of existence, the Swiss assurance
expired according to its own terms The WHO, however,made no attempt to
renegotiateitsagreementwith Switzerlandtoobtain a renewalof that assurance,
nor did it attempt to include any such assurance in any of the subsequent host
agreementsit negotiated. Inspite of the fact thatmany headquarters agreements
existed on which the WHO could have rnodelleda provision to allow unilateral
removalof theOfficewilhout a two-yearnoticeperiod, theWHO choseto retain,
and repeatedly to ernploy, the languageit had treatedas meaning thai an office
could be removed only by proper tcrrnination of the Host Agreement.
This Court has declared :

"Interpretations placed upon legal instruments by the parties to them,
though not conclusive as to their meaning, have considerable probative
valuewhentheycontain recognitionby a party ofitsown obligations under
an instrument." (IniernutionulS~UIU ofFSouth West Africu.ddvisory Opin-

ion,I.C.J. Reports 1950, pp. 135-136 6.)

~ée,e.g..Statement of US Representative to Interim Commissio Wn,HO/IC/
Min.Interimrevort,EMR/EBWG/2. p.8.
' Reportof iheTemporaryPanel oftegd Consultants onPrivilegeand Immunities,
WHO, IC/71, Rev.1,p.3, paras.4 and 8 :seealsoInterim report,ibid.p.7.
SeeReport ofthe TemporaryPanel ofLegalConsultantsonPrivilegesand Immu-
nitiesop.cii.
Thisis as tntefor internationalorganizatiassForotherparties to international
iegaiinstmmenis. See E.Lauterpacht, op.cil.pp.447-464. WRiTïEN STATEMENT OF THE UNITED STATES OF AMERICA 20 1

That maximapplies here. The WHO, because it was concerned that its Head-
quarters Agreement with Switzerland might require propw termination before
rcmoval of an office, requested an assurance that removal of the headquarters
without notice would not be taken aagroundfor terminating the treaty. When
that assurance clearlyexpired, the WHO, by continuingto use the sameprecise
language without obtaining renewed assurances, indicated that it had recog-

nized, "its own obligations under an instrument", that is, it recognized that it
would give two years'notice in the event of a future decision to rnove the
office,
There is, to the knowledge of the United States, no evidence whatever to
suggest that, in negotiations with any of the regional host States, the issue of
removal of the regional office was ever raised by the negotiating parties. In
accepting the denunciation clause, the parties appear to have routinely reliedon
the model host agreement.Thisiscertainly true of Egypt,whichmadeonly afew

changes in the draft Host Agreement, and appears not to have questioned the
language of Section 37'.The host States, by accepting the language of Section
37,without andysis or debate, wererelyingon theterms and equitable import of
the model host agreement, and on the good faith of its author, the WHO. The
WHO should not nowbe freeto changeits interpretation of the Host Agreement
to the prejudice of the host States that accepted its terms in the circumstances
which havejust been described.

II. Section 37 Imposes Legal Responsibilitieson the Parties durinany Two-
Year Notice Period

A. THE AGREEME N~ZMA~N SULLYIN FORC EURING THE *O-YEAR NOTICE
PERIOD

If either the WHO or Egypt wereto givenotice of denunciation pursuant to
Section 37, the Agreement, pursuant to its terms, would rernain fully in force
during the two-yearperiod between notice and termination. In accordance with
the principle ofpacrasuntsemanda,both parties would be bound hy the Agree-
ment and would be required to pedorm it in good faith. The analysis of the
responsibilities of the partduring the two-yearperiod must begin with these

propositions.
As the predicate for a discussion in Sections B Cnbelow of thecontent of
the obligations of the partduring the two-yearperiod, this Sectionaddresses
arguments that mi&t be put forth to defeat the conclusion that the Agreement
remains fully in force.
In the viewof the United States, neither party could invoke the doctrine of
fundamental change of circumstances to avoid its responsibilities during the
two-year period.The acceptedlawof thisdoctrine isenunciated by Article62of

the Vienna Convention on the Law of Treaties, which reads in pertinent pa:t
"A fundamental changeof circumstanceswhichhas occurredwith regard
to those existingat the timeof the conclusionof a treatywhich wasnot
foreseen by the parties, may not be invokas aground for terminating or

withdrawing from the treaty unless :

' SeeContentieux of thDepartmentsof ForeignAffairsand Stateof Egypt[p53,
supra]; see alsIetterof 23 March 1950from Waleed Ra'fat, State Adviseto the
Directorof the WHO'SRegilinalOfficein Alexandna fseepp.171-172, supra). INTERPRETATION OF AGREEMENT

(a) the existenceof those circumstancesconstituted an essential basis
of the consent of the parties to be bound by the treaty ;and
(6) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty."

As this Court has recognized, Article62"may in manyrespectsbe considered as
a codification of existing customary law on the subject of the termination of a
treaty relationshipon accountof changeof circumstances". FisheriesJurisdiction
(United Kingdom v. Iceland), Jurisdiction of the Court, JuLigment1.C. J.Reports
1973, p. 18 '.
The work of the International Law Commission and the Vienna Conference
on the Law of Treaties establishes that the doctnne of fundamental change of

circumstancesgenerallyhas noapplication wherethe treaty in question contains
a provision for negotiation and termination on two years' notice. Judge (then
Professor) Gros made this point during the Commission'sdiscussions of the
draft that became Article 62 :

"Most treatiescontained either a revisionclauseor adenunciation clause,
sothat theydid not raise the~roblernof rebus sicstuntihus,adoctrine which

had formerly been justified by the non-existenceof an organized interna-
tional society and by the defectivenessof the technique by which treaties
wereconcluded . ..[Thedoctnne] was useful as a residuq rulein the case
of treaties having no revision or denunciation clause .. .

The Commission'sreport on the Article stated that "for obvious reasons" the
rule "would seldom or never have relevancefor treaties of limited duration or
which are terminable upon notice 3".The delegates to the Vienna Conference

also recognized that the article under discussion would not operate to defeat
treaty provisions providing by their terms for mechanisms for dealing with
changing circumstances.As the Australian delegate noted, "it was highlydesir-
able that [Article621should not prejudice the operation of the provisions for
consultation and review which many treaties contained 4".Thus, the Agree-
ment'snegotiation and notice provisionssupplant thejustification for the fun-
damental change of circurnstancesdoctrine and preclude itsapplicability to the

present case.
Moreover,evenif the doctrine wereconsidered to have some residuai useful-
ness with respeci to treaties containing such provisions, the conditions estab-
lished by Article 62 for invocation of the doctrine have not been and cannot be
met in the present case. Article 62 requires that the allegedfundamental change

' TheConventionwhichcnteredintoforce 27 January 1980,applieshyitsterms(Art.
2 (a))to agreements between State and not to agreements between a State andan
internationalorganization.However,inmanyofits provisions(including thiosne),the
Convention generallyexpressescustomaryinternational lawA . rt.62of the Interna-
tionalLaw Commission'sdrdt articleson treaties concluded between Statesand
internationalorganizationsor betweeninternational organization s essentiallyin
accord with Art .2 of the Vienna Convention.
1 Yerirbookof the InfernationalLuw Commission1963, p. 153.
' II Yeurbookof fheIn~ernutionaL l aw Commission 1966, p.259.
Vienna Conference on theLaw ofTreaties,Summ. Rec., A/CONF/39/ 11,p.373.
The ILC'sdraft articleson treaties between Stateasnd internationalorganizations or
betweeninternationalorganizations, and thecommentary thereto, arewhollyinaccord.
See A/CN4/L.3 14/Add.l, pp. 5-11. WRITTEN STATEMENTOF THE UNITEDSTATESOF AMERICA 203

of circumstances be one "which was not foreseenby the parties". The parties to
theHost Agreement notonly foresaw thepossibilityof circumstancesindicating
the desirability of a change in location of the EMRO, but alsoprovided forthat
and other contingencies by including Section37 in the Agreement '.As the
discussionin Part 1abovedemonstrates, a principal purposeofSection 37wasto

establish the procedures tobe followedin theeventeither party wishedtheoffice
tobe removed from Egypt.
Article62 also requires that the change in circumstanccs be one the effect of
which "is radically to transform the extent of obligations still to be performed
under the treaty *".Neither party couldjustifiably claim such a change in the
present case. Egypt has never deviated from its willingness to perform dl its
obligations under theAgreement,and the WHO'sobligationsthereunder cannot
be transformed - let alone "radically transformed" - simplybecauseof chang-
ing and possibly evanescent political attitudes amongsome of its membership.
attitudes which arc unrelated to the achievement of the WHO's constitutional

objectives.In short, if the WHOwishesto alter the Iegalrégimethat has governed
the parties' relations since 1951, itmust do so by following the procedures
established by the Agreement itself.
Another argument that might be raised in an atternpt to defeat the effective-
ness of the Agreement during the IWO-yearperiod is that the severance
of diplomatic relations between Egypt and a nurnber of member States of the
WHO somehow relieves the Organization of its treaty responsibilities. The
United States submits that the severanceof these relations can have no effect
on the legal relations between Egyptand the Organization itself. It is now

established customary international law, as reflected in Article 63 of the
Vienna Convention, that severance of diplomatic relations does nor affect
treaty relations "except in so far as the existence of diplomatic or consular
relations is indispensable for the application of the treaty". In this case, the
host State remains entirely willing to continue to extend full facilities for the
Regional Office and for al1members of the Regional Committee. Any State
that has severeddiplomatic relations with Egyptis perfectly free to send health
delegations to Alexandria without prejudice to its position on diplomatic

relations. The absence of diplomatic relations between some States and the
host govemment may make somc day-to-day dealings more cumbersome,
but it can hardly be said that the existence of diplornatic relations is "indis-
pensable" to the on-going functioning of the Organization in the territory of
the host.

The Auslraliandelegate to the Vienna Conferencedescrjbedthe relaiionship
betweenArticle 62 and negotiationandnotice provisions in these terms : "ltwas
common practice to include itreatiesintendedtooperatefor longperiodsaprovision
for consultation orreviewai regularintervalsor ai the requestof either party.In
practjce, hos perovisionsgreatlyfacilitatedrelations betwetheStatesconcerned...
paragraphn Ithat the fundamentai changoefcircumstancesinvokcdmustbeonewhchentin
had not beenforeseenby the partiesat the timeof the conclusionof the treaty."
A/CONF.39/ 11. p.373.
In FisheriesJurisdicrion(United Kingdom v. Iceland),JurisdicriooJ rhe Court,
Judgmetir.1.C.J. Aeporrs 1973.p.2 1,the Court describedsucha change asone that
has

"jncreasedtheburdenof theobligationstobeexecuted totheextent of rendering
the performance something essentiallydilferent from that originallyunder-
taken".204 INTERPRETATIONOF AGREEMENT

To the contrary,it has and willoften bethe case thatthe govemment acting as
host to an international organization will not have diplomatic relations with
some of the members of the organization, but this fact in no measure affects
the vitaiity of its headquarters agreements. For exarnple, it is common for
delegations of member States of the United Nations that do not enjoy

diplomatic relations with the United States to take part in United Nations
meetings at its New York headquarters. They do not thereby prejudice their
position on diplomatic relations or affect the legal régimeapplicable to the
headquarters.
A third argumentthat might be raisedagainst the continuing effectivenessof
the Host Agreement during the two-yearperiod issupervening irnpossibilityof
performance. Under Article 61of theVienna Convention (and Article 61of the
draft articles on treaties concluded between States and international organiza-

tions or between international organizations), a party

"may invoke the irnpossibility of performing a treaty as a ground for
terminating or withdrawing from it ifthe impossibility results from the
permanent disappearance or destruction of an object indispensable for the
execution of the treaty. If the impossibilityis temporary, it maybe invoked
only as a ground for suspending the operation of the treaty."

In the present case, theobject of the Host Agreement, the EMRO office in

Alexandna and its facilities, has not disappeared. Egypt remains a member of
WHO and of its Eastern Mediterranean Regional Organization, ready and
willingtocontinue toperform itsobligations to theWHOand to the membersof
the EMRO under the WHO Constitution and the Host Agreement.The Office
itself, fully staffed and equipped, continues to function in Alexandna. The fact
that some States in the region may be unwilling to take part in regional com-
mittee meetings in Alexandna does not bring about the disappearance of an
object "indispensable" to the application of the treaty. At most, it creates a
political situation that might (but need not) prompt the orderly removal of the

Officecontemplated by the parties and provided for in Section37 of the Host
Agreement.
Accordingly,unlessthe Agreementis terminated at an earlierdate by consent
of the parties, it will remain fully in force until the expiration of the two-year
period l.

'This conclusionconfoms with Article54 of the Vienna Convention,which
reads :
"The terminationof a treatyor thewithdrawalof a party may take place

(a)inconformitywiththe provisionsof the treaty ; or
(b) at any time by consentof allthe partiesafter consultation with the other
contractingStates."
The InternationalLaw Commissionfound itunnecessary toinclude initsfinaidraftof ,
this articleaprovision thatwouldhaveread :"Whenapartyhasdenouncedabilateral
treatyinconformity with the termsofthetreaiy,thetreaiy terminatesonthedatewhen
thedenunciation takeseffect."SeeII Yearhookof rheInternationalLaw Commission
1963. p. 199.Most governments commentinon this provisionof the exlier draît
thuughtil was self-evidcntthat the treatywoufdrernaininforceuntilterminationtook
effect.Thusthis languagewasdeleted.II Yearbookof iheInfernationalLaw Commission
1966,D.25. WRITTEN STATEMENTOF THE UNITED STATES OF AMERICA 205

B. DURING THE *O-YEAR PERIOD THE PARTIE ARE BOUND BY THE AGREE-
MENT AND MUST PERFOR IM IN GOODFAITH

The principle ofpacta sunt servandunaturally governs the conduct of the
parties as long as the Agreement remainsin force. This principle is reflected in
Article 26 of the Vienna Convention, which reads:"Every treaty in force is
binding upon theparties toit and must beperformed by themin goodfaith." The
principle has also been repeatedly reaffirmed by the decisionsof this Court and
its predecessor'.
In the present case, the mle opactu sunt senianda entails, first of all, an
obligation to giveeffect to al1the provisions of the Agreement according to its

terms. Thus, for example, if notice of termination were given by either party,
Egypt would be bound to afford to the Organkation al1the privileges,immu-
nities and facilitiesspecifiedin the Agreemand,the Organization forits part
would be equally bound to comply with all of its specified obligations, up
through the date termination became effectiv*.
Equally importantly for present purposes, if notice were given,both parties
wouldbe obligedto refrain fromacts that would defeat theobjectand purpose of
the Agreement for so long as it remained in fo3.This obligation is another

manifestation of the principle of goodfaith,whichisthecomerstone of thepacra
suntsemandonile. The International LawCommission,in its discussionofpucru
suntseniandu,relied heavilyon thejurisprudence of this Caurt in support of the
principle that the obligation toact in goodfaith "must not be evadedby a merely
liieral application" of treaty cla4.es
As the discussion inPart 1abovedemonstrates, the objeand purpose ofthe
Agreement istoprovidefor themaintenance under appropriate conditions of the

Regjonai Officein Egypt. Thus, during any notice period both parties would be
obliged to continutoaccord to the OfficeinAlexandna thestatus of the seat of
the Organization in the Eastern Mediterranean. Any actions taken by either
party concerning the Organization's arrangements during the two-year period
must be consistent with this view. Egypt may not eject the Office from its
territory, and the Organization may not suddenly removeit, unlessboth parties
consent to the change. Contrary actions would defeat the Agreement'spurpose
in violation of the principle of good faith.

C. THEPARTIES MUSTNEGOTIAT DURlNG THE TWO-YEAR PER~OD FOR AN
ORDERL YRANS~TION TO ANEWLEGAL RECIME

Theresponsibilities discussedin Section II-Barise out of general principlesof
international law and came into being at the beginning of the relationship

betwcen the parties. Uponthegivingofnotice byeitherparty totheAgreementa

Rights oj National3ofthe UniredStates of America in Morocco,Judgment,I.C.J.
Report31952,p. 212; TreatmeniofPolishNntionulsand OtherPeO!PolishOriginor
Speech in theDanzig Terri~ory,Advirory Opinion, 1932,P.C.I.J., SerNo.44,,
p.28 ; MinoritySchoolsinAlbania,Advisop Opinion, 1935,P.C.I.J.,SeriesA/B, No. 64.
pp. 19-20.
Compare Art.18ofthe ViennaConvention,whichreflectsacomparableobligation
durin the periodprior to entry into forceof a treaty.
Tbe WHO'SobligationsarereflcctrdiseveraisectionoftheAgreement,indud-
ingSections26, 31, 32, and 34.
' IIYearhook ofthe ~nrerna~iuLlaw Commission 1966,p. 211.206 INTERPRETATION OF AGREEMENT

more particularized set of responsibilities would also corne into being. These

additional responsibilities would stem frorn theneed to ensure an orderly tran-
sition to a new legal régime.The giving of notice would reflect the fact that a
one-year period of negotiations between the parties had not resulted in a
rnutually satisfactory understanding on modification of the Agreement. but the
givingof notice would not signifythe end of negotiations. Rather, it would add
special importance and urgency to the negotiation process.
Assuming that a notice of termination was not to be withdrawn, many prob-
lemswould needto be resolvedduring the two-yearperiod. On the one hand, the
Organization would wish to ensure appropriate protection of any interests

it might have in Egypt after the end of the two-year period. For exampie, it
would need to preserve its records and continue its programme until a new
office could be established. On the other hand, Egypt would wish to ensure
that the disestablishment of the Office and the withdrawal or discharge of
its staff did not unduly disrupt the community in which the Office and its
predecessors havebeenfunctioning for some 150years.Transition arrangements
could include transfer of property interests to new holders, mechanismsfor the
settling of outstanding financial accounts, provisions for relocating displaced
employees, and CO-operationin minimizing disruption of important regional
programmes.
The drafters of the Agreement included the negotiationand notice provisions

of Section 37 precisely to ensure tirnefor negotiating and implementing of
transition arrangements. The duty to negotiate reflected in Section 37 is a spe-
cificmanifestation of the general obligation under international law to negotiate
in good faith to resolveproblems arisingout of changingrelationships. Fisheries
Jurisdiction (Federal Republicof Gerrnany v. Iceland),Merits, Judgment, I.C.J.
Reports1974, pp. 201-203.The task before theparties would be to conduct their
negotiations on the basis that each must in good faith pay reasonable regard to
the legai rights of the other, to the factsof the particular situation, and to the
interests of other States.

CONCLUSIONS

1. Theprovisionsof theHost Agreement - interpreted in goodfaith in lightof
the object and purpose of the Agreement, the practical interests of the parties,
international practice,and the history of theHost Agreement - indicate that the
parties intended that the EMRO be located in Egypt and maintained there for
the lifeof the Agreement. Therefore, it would be a breach of the Agreement to
removethe Officeexcept by proper termination of theAgreement pursuant to its
termination clause. Accordingly,theUnited States respectfullysuggeststhat the
Court answer the first question posed to it in the affirmative.
II. If either Egypt or the WHO should givenotice of denunciation, the Host

Agreement wouldremain in force forthe two-yearperiod betweendenunciation
and termination. In sucha situation, theruleofpacta suntservunduwould require
that the +\ligations imposed bythe Agreement behonoured in goodfaith during
thenotice period. Theseobligations would be to keep the existinglegalrégimein
existence until termination of the Agreement, and to provide for an orderly
closingof the Regional Office. Accordingly, theUnited States respectfully sug-
gests that the Court declare that, if either party were to denounce the Host
Agreement, theparties would have the followinglegalresponsibilitiesduring the
two-year period between denunciation and termination :A. Egypt would be required to provide the EMRO with the agreed-upon
facilities, privileges, immunities, and other benefits of the Hosi Agree-
ment :
B. The WHOwould berequired to accord tothe EMRO thestatus of the scat of
the Organization in the Eastern Mediterranean, and tocontinue to pcrform
ils otherobligations under the Host Agreement ;and

C. Roth the WHO and Egypt would berequired to CO-operate,in good faith, in
the gradua1 disestablishment of the Regional Office over the cwo-ycar
period. EXPOSÉ ÉCRIT DU GOUVERNEMENT

DE LA R~PUBLIQUE ARABE SYRIENNE

Damas, le 23 août 1980

Ayant pris note de l'ordonnance du 6juin 1980relative au délaifixépour
présenterdesexposés écritsur l'lnterprétotionde l'accorddu25 mars 1951entre
l'OMS et I'Egypz en ce qui concerne le transfert du Bureau régionalde la
Méditerranée orientalà Alexandrie, ainsi que de la décisionde l'Assemblée
mondiale de la Santédedemander l'avisconsultatif9dCour internationale de
Justice sur les questions suivantes :

«1. Lesclausesde négociationet de préavis énoncéedsansla section 37
de l'accord du 25mars 1951entre l'organisation mondiale de la Santéet
1'Egyptesont-elles applicables au cas où l'une ou l'autre àl'accord
souhaite que le Bureau régionalsoit transféré horsdu territoire égyp-
tien?
2. Dans l'affirmative, quelles seraientles responsabilitésjuridiques tant
del'organisation mondiale dela SantéquedeI'Egypteencequi concerne le
Bureau régionalà Alexandrie, au cours des deux ans séparant la date de
dénonciationde l'accord et la date ou celui-ci deviendrait caduc?

Le Gouvernement de la Républiquearabe syrienne, conformément à l'ar-
ticle66, paragophe 2, du Statut de la Cour, présente les observations écrites
suivantes sur la question, se réservantle droit d'enavancer d'autres, aucours de
la phase orale qui pourrait avoir Iieu a une date ultérieure:

1.La situation de plus en plus tendueet troubléequi sévitdans ldelagion
Méditerranée orientale etqui a rendu nécessairele transfert du Bureau régional
trouve sa cause dans les accords signésaux Etats-Unis d'Amériquà,Camp
David le 17septembre 1978.Ces accords ont, en effet, empéchéla régionde
parvenirA une paix globale et véritable,réclpar les Etats arabes et admise
enfin aujourd'hui par la communauté internationale tout entiere (voir, par
exemple, résolutionno7/2 du 29juillet 1980,septième sessionextraordinaire de
l'Assemblée généraldee l'ONU). Ils ont aussi encouragé Israëà continuer
d'occuper les territoiresarabes, de méconnaîtrelesdroits nationaux arabes et de
recourir Asespratiques agressiveset expansionnistes dans la région. Cesaccords
ont, en outre, écarté1'Egyptedu rang des pays arabes, en emmenant le Gou-

vernement égyptien,sur le territoire duquel se trouve le siègeactuel du Bureau
régionalde la Méditerranéeoriental, conclure, au défide touslesautres Etats
arabes, un traitépaixavec Israël et a continuer progressivementde normaliser
ses relations avec lui dans tous les domaines.
Comment dans ces conditions, et alors que les Etats arabes ont rompu leurs
relations avec le Gouvernement égyptien,le Bureau régionalpourra-t-il fonc-
tionner normalement et mener a bien ses activitésqui, du fait mêmede son
mandat, s'étendenta tous les pays arabes de la Méditerranée orientale.
Comment, alors que l'étatde belligérance persisteentre les Etats arabes et

1ParvenuauGreffele 3 septembre1980.[NoieduGreffe.] EXPOS ~CBRIT DE LA REPUBLIQ UREABE SYRIENNE 209

Israël et tandis que le Gouvernement égyptien traite directement avec ce
dernier, un esprit de collaboration confiante et une atmosphère de sécurité
certaine pcuvent-ils régnerau scin du Rureau régionalà Alexandrie ?N'est-ce
pas d'ailleurs dans ce souci de sécuritéque le Gouvernement égyptien,a
l'époquede la signature de t'accord du 25 mars 1951,a jugé nécessaireet à
bon droit d'introduire cette garantie de securite dans l'articleX de l'accord,

comme dans des accords similaires conclus avec d'autres organisations inter-
nationales ?
2. La demande de transfert du Bureau régionalpar les pays concernés3 un
autre paysdela régionest donc,Blalueurdecesfaitsconcrets,compréhensibleet
justifiée.La décisioi prendre appartient de droit et entièremeàtI'Assemblce
mondiale dela Santé. Cettedécision estfondée surla Constitution de I'OMS,
notamment sur son article 44. L'Assembléecependant se doit de connaître

l'opinion des pays de la rcgion directement concernés,conformémentaux prin-
cipes mêmesde la Constitution :les pays arabes ont fait conna;trlaleur. en
demandant le transfert, 3.la suite d'un sommet que les chefs d'Etat arabes
ont tenu en novembre 1978.Les pays non arabes de la régionont exprimé le
même désirpar lavoiede l'organismerégionalcompétent.C'est,eneffet,lesous-
comitéA du Comitérégionalqui, lorsdesa sessionextraordinaire tenue le9 mai
1980 à Genève, a recommandé à l'Assembléemondiale de la Santé,et a la
quasi-unanimité de ses membres (19 voix contre 1, celle de I'Egypte) : <le

transfert du Bureau régionalde la Méditerranée orientalea Amman, en Jorda-
nie r)Ce mêmeorganisme a aussi indiqué à l'attention de l'Assemblé:
<que le coUttotal du transfert du Bureau régionaa Amman ainsi que les

dépenses accruesde fonctionnement pour une périodede cinq ans seront
couverts par des contributions volontaires des Etats membres de la rcgion
de la Méditerranéeonentale i(EM/RC-SSA 2/3).

Enfin un groupe de,travail établipar le Conseil exécutifet composéde six
éminentsexperts représentantles sixrégionsgéographiquesde l'organisation a
signalé lesdisponibilitésadéquatesqui s'offrent au transfert du Bureau régio-
nai.
3. Toutes lesconditions étaientdonc réuniespour que l'Assembléeprenne sa
décisionsans retard, afin de permettre au Bureau de continuer normalement
l'accomplissementde ses activitéset d'une façon satisfaisanteau profit de tous

les peuples de la région.
Cependant, I'Asscmbléea jugébon de consulter la Cour internationale de
Justice sur I'applicabilitédes clausesde négociationet de préavisénoncsans
la section37 de I'accord du 25 mars 1951, au cas où l'une ou l'autre partie it
I'accordsouhaite que le Bureau régionalsoit transféréhors du territoire égyp-
tien; d'aprèscesclauses,ledélaide négociationest d'un an, celui du préavisde
deux ans : au total donc une duréelimite de trois années.
Nous estimonsde notre part,ctant donnéqu'aucundes articlesdudit accord

n'a trait nà I'établissementdu siègedu Bureau régional, niau transfert de ce
siège,que les clausesde ncgociation et de préavis susindiquéess'appliquent,
exclusivement.au régimeexistant entre l'organisation internationale et le pays
hôte. Dans le cas cn causece régimeest réglementépar des dispositionsconsa-
créesuniquementaux privilèges.immunitéset facilitésaccordésenEgyptepar le
Gouvernement égyptien àl'organisation, aux représentantsde ses membres.à
ses experts eta ses fonctionnaires.

Bienentendu,pour des raisons d'opportunité etde commodité, et unefoisla
décisionde transfert prise.Iesdispositiode l'accorddu 25 mars 1951pourrontcontinuer d'étremisesen applicationjusqu'a une date à convenir entre lesdeux
parties pour son extinction.
4. Notre conclusion est donc la suivante :

- étantdonnéla situation de plus en plus tendue et troubléequi sévitdans la
région,
- tenant compte de la demande expriméepar les pays directement concernés
pour le transfert du Bureau regionai,

- prenant en considérationles disponibilités offertespour permettre la réali-
sation de cet objectif,
- vuque lesclauses de négociationet de préavisde l'accorddu 25 mars 1951ne
sont pas applicables, pour les raisons que nous avons indiquées, j.ce trans-
fert,

l'Assembléemondialede laSantépeut etdoit sedécidersur lechoixdu nouveau
siègedu Rurcaurégional,sansdonner a l'exercicedesa volontésouveraineen la
matiéreles limites de temps indiquéesdans les clauses de négociationet de
préavisde l'accord du 25 mars 1951.
L'étudeque préparela Commissiondu droit international, relative aux traités
conclusentre les Etats et des organisationsinternationales,concorde avecnotre
point de vue,puisquedans sonrapport A l'Assemblée générale del'ONU,citéau
document A33/VR/ 15,nous lisons :

(ilechoixde son siégeparune organisationinternationale correspond pour
elle hl'exerciced'un droit dont il est normal de ne pas immobiliserI'exer-
cice ;d'ailleurslefonctionnement harmonieuxd'un accordde siègesuppose
entre l'organisation et 1'EtathBte des relations d'une nature particulière
dont Ic maintien ne peut êtreassurépar la volonté d'unepartie scule-
ment o.