Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt - Advisory opinion

INTERNATIONAL COURTOF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: intercourt, The Hague

Telex 32323
. Communiqu6

*O.rforrmmedif ta releasa

~qter~retatibnof il~cAgreement of 25 Xarch S95 1
between the hWO and Egypt

The followipi information i..smade available to the pressby the
Registry of the Infernaf ional Cogrr of Justice : ,
,

Today, 20 Decemher 1980, the International Court of Justcce delivered
its Advisory Opinion in the casé concerning the Interprgtation of the
Agreement of 25 March 1951 between the W!iQand Egypt subnitteù to it by
a requeçt £rom the Wotld Health Assembly.

The Court has set forth the .l.cgal prlnciples and rules cancernicg
consultation, negotiation and natice that would apply as between the
WIIQand Egypt if the Regional Officc of the: h3i0for the Eastern
Mediterranean ,hich is at prcsent iit~iexanrlria, wcre transferred Eram
Egypcian teril tory,

>
The text of the questions formu1ate.d by the WHO and a suolDlary of the
Court'sreplies are given helow"(thë full text of the operativc'paragraph
andanindication oEhow Members of theCour~vored are given inanannex

to this commiiniquS) .

i. Dy 12 votes to f, the Court decided to c-omply with the Requeçt
for an advisory opinion.

2. With regard ta Qzestion 1, which read as Eof~ows;

"Are the negotiation 'àïid notice provisions'of Section 37
0% the Agreenient a£ 25 mrch 1951 bctweeri the World Health
Os'gaiiiza tion and Egypt applicable in the event chat cither
party to the ~~reeine<t w?shes to have the Regional Office
transferred f rom the territaff of Egypt?", '

the Court, *by 12 votes to I, exgressed the opinl on tha t in the event af a
transfcr of the Regional OfLi36 of the CJJ3Ofrom Egypt, the and Egypt
would; in particular, have -(.=is mitual obligation to cofisult together ingood faitn as ta the question under what conditions and in accordance with
whatnodalitiesthe transfer rnieht be effected; -b) a mtual obligation to
consult togetherand to nego tiate regarding the arrangements needed to ef fect
such transferin an orderly nancer and with a minimumcf prejudice to the

work a£ the \GO and the interests of Fgypt g and -c) an obligatian on the
part of the party which wishes tc eflcct the transfertu give a reasonable
period of notire to the alher party.
*

3, With regard ta Question 2, uhich rcad:

"IL sa, what would be the legal responsihilitics of both the
World BealthOrganiiationand Eupl, with regard to the Regional
Office in Alexandria, during the 2-year period betwecnnotice and

temiqation a£ the Agreement?vfg

the Court, by 11 votes to 2, expressed the opinion chat, in the event of a
decision ta transfer, the legal reSponçibilitie sf the WHOand Egypt betweea
the notification05 the proposed trançfer and the accomplishment thereof would
be to Eulfil in good fai.th the mutual obligations stntez in the reply to

Question 1.
" .

The Court was composed as follows: President Sir Hunphrey Valdock;

Vice-President Elins; Judges Forster, Gros, Lachs, Xurozov, Nagcndra Singh,
Ruda, Mosler, Oda, Ago, El-Erian and Sette-Canasa.

Judges Gros, Lachç, Ruda, Masler, Oda, Ago, El-Erian and Secte-Ca~ara
have appended separate opinions tu the AdvisoryOpinion.

~ud~e ~a&i&v has appended a dissentineapini on. (Sunmeryin anncx. )
. .
In these opinions the judg.es concernes rdke clcar and explainstheir reasons
for the positions which they tzke in regard to the various natters dealt
with in the Court's opinion.

A printed texc of the Advisury Opinion and cf Che separate arid'dissenting

opinionswill becorne &vailable in the course O£ Janunry 1981, (Orders and
enquiries sbould bé addressed tc the Distributtan and Sales, Section,Of fice of
the Gnited Nations, l:,I I Geneva 10;: the Sales Section, UnicedHations, New
York, N.Y. 10017; or any appropriatclyspecialized boakshop.j . , ..

An arialyçis of the Advisory Opinion is given.beLor~. It hau been prepared
by the Qgistry for the use ni the press and in no way involves tlze
sesponslbility of the Court. It caanot be qunted ngainst the actuai text of
the kdvlsery Opinion, of whicli It does not constitute In interpretatlon. Bnalysis of the liidvisory Opinion
.I .,
:.

Factusl and background ECIthc çubmisçibnof the Request (paras. 1-32
cf the AdvisoryOpini.on} . .-_ ,,
? .
Bfteraetailing the yariCus stages.;£ the proceedings (paras. 3-9),
the Court zecourits the anteccdents of the 1233RegionalOffice at Alexandria,

£rom the çreaticnin that city of a general Board of Wealth i.n 1831 for the
purpose of preventing epidenics up to rhe intqration of the Alexandria
Sanitary Bureau nith the !-Di5 in 1949 as a regional organ. The Eastern
Mediterranean Regional Office comeaccd operations on i July 1949, while
negotiationç were in progress between thc bXO and Egypt for the conclusion
of an agreement on the privilcges, imunities and Facilitles to be gsanted

to the Qrganization. This agreement waç eventually signod on 25 March 1951
and enteredinto force on 8 tlugust 1951 asas 10-27).

0 The Courtnext examines the events xhich led ta the submiçsi~nof the
request for an Advis~ryOpinion. It rccapltulates 7roceedingç within the

tJHO, from the recammendationby a Sub-Cornitteeof the Regi~nal Cornittee
for the Eastern Mediterranean on 11 May 1979 that the Office be transferred
to anattier State in the region, up trithe recominendation by the same Sub-
Cornitteeon 9 May 1980 t:ha,t the RegionalOfficebe transferred as soon as
possible to han (Jordan) .and thc adoption by the World HealthAssembly on
20 May 1980 of resolutionWH&33 6, by which, 'or. account of differing vlews

as to the applicabilityof Section 37 of the Agreement of 25 March 295t to
the transfer of the RcgionalOffice, it sought the Court's advisory opinion' '
on two questirins prior Co tekiïig ang decision-(paras. 25-32).
, .

Cornpetence to deliveran Opinion (para. 33 of the Advisory'Opinion)

1
Befcre goiqg any further, thc Court consi.dcrs whether it ought to
decline to reply,.to the request Tor an Advisory Opinion by reason of itç
allegedly political character. Tt concludes thst to do. so kruuld run counter
to ita settled jurisprudence. If a.question submitted in a request is one
that othczwise £al.ls within thc normal exescise of its judicial pmgexs, the

Court has notl.to acal vith the motives which may have i.nspired the request.

Significance and scope of the questions put to the Court (paras. 34 E. of
the AdvisoryOpinion)

' The CouTtnext considers the meaning and iuplicati6~~s of the hyporherical
questions on which it is askcd to advise. Sectifin 37 of the Agreement of
25 March 1951, to which the first question refcrç, readç:
".
."The prescrit Agreementmay hc rewlsed at the zequest of eithes
payty. In this-event the twi= parties shall consulc eacliothcr

concerning the modifications to'be nade in ies provisions. If
the negotiations do not reçultin an undcrst~nding within one
- year, the present.Agreen;ent.mdy:b dcnounçed by either party
,giving two yeass' notice. " . , F

The.. . The Court priints out that, if it is to remin faithful to the
requirenents of its judicicl cha~scter in the exercise of its advisory

jurisdirtFcn,it must escertain whar are th^ lcgal questiciins really in
içsüe if; qilestions farmuiated in a request. This it has tisd occasion tro
dn in the past, as had slsu the Permment Court cf Znternati.ona1 Justice.
The Court also notes that z reply to questions of the kind p0~2d in the*
request çuhmitted tc it ~2y,
if Incomplf:te, hc nor only ineffectual but
actuâlly misleading as tc the legal rules applicable to the matter under
consideration by the IJJ3JtiO.

Havingregard to the diffcringviews expressed in. the World Healch
Assernbly on a number of points, ir appcars that the true legal'question

under cor?si?erafiion in the Wcrld Health Assembly;which aust also b-e
considered to be the legal quesrion çubmitted to the Court in the WHO'S
request is:

Wbat are tlw legal principlcs and rules applicable to the question I I

under what conditionsand Ln accordance with what iaodâlities a transfer
O£ the Region.l. Office £ron Egypt mqr be effected?
. .
1
The di£ f ering views advariced (paras. 37-42) . ,

Tn a~swering the questi~n thus fornulated, the Court Iirst notes that
Che right of an ihtercitionaj. urganizatior. tc chaose the 1oEatl6r; of its '
tzeadquarters cirregional. office Ps not contested. .It then turns tc the
difgeringvieusexpresses in thc World Heelth hssetiihly ad, bcfore the

Court,, In the wzltten and oral statements, regardin8 the relevancc of the .-
Agreement of 25 March 1951 and t'lieapplicability of Section 37 to a'
transfer of rha RegionalOfficefrom Egypt.

With resFect Lo the rclevançe of the 1951 Agreement, one of the views

advanced was that that agreement was a separate transaction,sfitsequent ro
the estsblishnlent at the Regioi~al 3fficc, an?L that, zlthough it might
contaiil keferencestu thc seai: of the Regi.ona1 Office in illexanrl-in, -kt
did not.psovièefor the O:fice7s locatinnthero. lt vould follow that it .
had no bearing cirithe brgr,nizationiç ri.&ht to remove .the~egi5na~ Office
from Egypt. The Agreerrrenb, it krak.clairned, concerncd the ixmunitiei and . .

privilegeç grantcd to the Office within the larger çcntext of the 'immunities
and ?rivileges granted by Egypt to the IfiIO.

Accosding to the opposing vleug, the estab2içlinen.t: of the Rcgidrinl
Office ~nd itç integratinnwith the l<'liwere not:conpleted in'1'949 p' they '
were accomplished by a series of acts in a cn~positc?rocess, the final and

definitive step in which hras the çoncLusion nf the 1951 hosr agreement. It
was contended; inter alias that the absencc of a specific ~rcivision regarding
the estatlisbenr of the iyXO Office in Alexasdriawas due to thc fact 'that-
the Agreementwaç dcaiing with a pre-existing SanitaryBureau already
estatilished there...Plrireover, it was ststerl,.the Agreeïaent was cois lantly

refersed to as a host agreemeiit in-the rec~rdç or the \;HO and in nfficlal.
acts O£ the Egyptian State (;laras. 37-39). .

50 Ear as the spplicability nf .~bctian 37 fo the cransier of 'the Officc
from Egypt was concerned, thc differençes. of view resultec! eçse.ntially from

the meaning attributcd ta the word "revise" in the iirs t sentence, Accordlng

to.. . to one vie,w, a transfer pS the seat would not constitute a revision 2nd ..
t~ould tkas not 5e cuverrd by 5ectl.o~ 37, which would not apgly tri the
I deriunclatioii of the Agrccnent v:lliçhc? trançfer of the OfIicrfroa Egypt

wo~~ld involve. Uplioldcrs of thi s view criccludecl theref rom that sirice
there was no pr,cyisiox <n ~he Agrcc~ient for denunciâtian, the. general
rules of internatior,al la??.::l~iich proviclcfor the pcs siblli ty -;if
denunclation and the aced for a period cf nntice in respect of çuch
agreemcatç applicd in the p1:esent case. hccording ta the oppcsi te view,
the wcr4 "reviçe2' mi&t also si~riifg s general.reirisior! of an agre~ment,

including its tcrniination, mCi: vas so used in rhc- 1951 A~;.;ement.
According ir: the pro~onents rif tilis ~ini?~ E~JEE 1E th~t Zntcrpretatl on
was rejccted, Egypt: i$muld still be etitiiled ru recejve riotice :~nder the
gencralruleszf lcternatianzflm,

I Whatevex viiw ma? bc'taken of the zrguments sdvanced c3ncfrning the

relzvance and applici~hiii ty of the 1951 ~gre'aent, the Court finds that
certain legal prinçlples az?d rules are applicable, in the case of such a
eransf er (paras. 40-~42). . . .

iilutual obligit5ons of co--operatirir: nr,d good fait11 (pares. 42-47)

\&etber th. nutual iindiiistl~~din~s reaclicd bctw~en Zgypt: and the WKO
Erom 1949 to 1951 arc rcgnrded as ?%istinct zgreementscr as separate Farts
of a singletransaction, a ccintractual legal régime vas çreated 'Detween
Egypt and the Organizztion -;h<ch ~enlains the basis of thesr Legal rclaticns

today, These relatiims rcaain thcsr? OE n hast Siate and an international
organizaticn, the very zssence af which Is a body cf inutual nbligationsof
ca-opratioc and good taith. Having regard to the practical prablms which
a transfer would cause, tlieWç! 2riC Egy-i: miicçt cci-operate cloçely to avoid
any risk of serio7~ç disruptlcr! +o the vorir of the Kegicnal. Office. In
particular, a rcasoriable ~sziod 3: i:ine sh»iild be, allowed ,for the process

(paras. 4.3 E.) .

In the Çourtvnvieu, certain lainters to the implicat~onscf tbese
mutual cbligaeionç to es-aperate in gaod fakth in a situation 3ikc the
onewith~hiciiitisconcernedniaybefoundinnumeroi~shostngrcemcnta,
as well as in Article56, 1)aragrayh 2, of the Vienna Conventicn on the

Law cf Trezt i.es aila the correspoa6is;g ;rrrovis<or,Ln the Internaticn~l
Law C~mmi~sion~ç draft articles op treatLesbetween States and
internati2nal osganizations or betiile~n inter~atio~~aï nsgafiizations
(paras. 45-47 j.

Applicable legal 2rlnci~les and ru les (pares. 48 f .

The Court thus ficds the a>-Ilcable lesal. principXes and r~les, and
the consequent obligatlcms, tn canni st In r

- conçultetionin gof~d Eaich a? fo the questionunder whzt c~nditi~~sand

in acccrdsnce with whrt modalities a trasçfer of tiie Regicnal Office
frrm Egypt nay %e ef fectcd;

- if a trsnsferis decided upon, consultaticn 2nd negotiation regarding
the errsnyener,Cs zecdcd tr_ieffctt tIic transEsr iri an arderly manner and
with a ainimm of ~f~jl?dice to the vork of the orgaci.zari:.r_ and the

interestçof Egypt:

- the.. .- the giving of reasonable notice by the ,party desising the transfer.

Preciselywhat ~eriods cf tiîriernsybe involvedin the cbservance of the
duries co cansulr and negotiatc, 2nd what pcriod of ~otice s?iculd be
given, arc natterswhich nccessarilyVary ac.cosding to tbc requirenents
cf the particulaz case. :P.!xinclpfe, thcreforc, it in fa1 the garties

in each case to deternine thm. So;ri.indicati~ns as to tFte possible
periads involved cm ke seen in provisians a£ host agxcezents, ipcludin~
Section 37 of the figre~mest of 25 March 1951, as well as in Article56
of the Vienns Convention on thc Law of Treatics and ir. thc corresponding
articlc cf the 1ntern.z-tional'L.aw Comission's dra£t articles or, treaties

bctween States and international arganizations nr between intercatimal
organizations. The paranount considerationboth fcr the and the host
Srate in every case muçt be their abligation to CO-operatein gcod laith
to pronote the objectives and pvrposes cf the L'HO.

Seccxid r!uestior? aubmittedto the Ccurt (>ara. 5.3)

It fcllows frm thc fnsegoing that the Cnurt's rreply to the second
question iç that ths legal rcsponsibilities of the Organizationand Egypt
during the tr~nsitionalreriod betwezn nntificstinn a£ the proposed

trgnsfer and the accamplish~ent thereof would bc to fulfil in good fsith
the nutual obligations sep out abcve.

For these reasons, the Court has delivercd the Bdvisory Opinion rqhose

conplete operativeprovisions nre a~nexed hercto. -nex to Press ~o&uniqué BO/.14
. II .

Operative Prov<sion of the AdvisoxyOpinion.
II

THE COWRT~,

1. By twelve votes 1 to one 2.

Decldes to corpLy with th^ Requ~st for rn ahisory opinion;

2. With yegaxd to question 1,
. . 1 ' '2
by twelve votes 'to oxie ,

IB of the opinionthnt in tlm event specified in the Request, the '
~bligations \?hich they imply,
legal principles and rules, and the mutual
rcgarding consuLtation, negatkationand ncticc, applicable as between
the World Health Organization and Egypt sre those which bave been set
out in pciragrapfi49 of this Advisory Opinion and in particular that:

(a) Their mutual obligatiL>ns under thoçe legal princi7les and ruies place
a Juty hnrh upnn the Organizatinn and upon Egypt co consult together

irz good fairh as to the question under riihntconditions and in
accordancc with what msdalitieç a transfer ~f the Regional Office
from Egypt Clay be effccted;

-(b) In the event cl£ its being final ly decided that the Regional. Office
shsllEe trans ferscd from E~pc, tkeir mutual obligations of co-
operation place 3 duty upn the Grganization 2nd Egypt to cnnsult
togettier arld ta negotiare rcgardins the varlausarrangements needed

to effect the tram fer from the existin~ tn th2 new site in an nrderly
manner and with a rcir?i.rnmof prf judice to the uork cf the 'Organizaticn
and the Interests of Egypt g

(cl Their.. .
-

X
Compascd as folloxs: Presidcnt Sir Hmphrey Waldock;
Vice-P~esident Eliaç; Judges Forster, Grns, Lachsi Morozav,
Nagendra Singh, Ruda, Ploslcr, Oda, dg?? El-Erian, Sette-Camara.

.-
'pre,ident Sir Humptirey Waldoclc t vice- kas ide nt lins :'
Judgcs Forster, Gros, Larhs, Nagendra Singh, Brida, Mosler, Oda, Ago,
El-Exian, Sette-Cawra. (cl-Their mutual obligationsunder thase legal principles and rules
- place a d~ty upon the party whichwisl~es t-o effcct th2 transfes

to givc a reasonable period' of no tic^ ta the other Party for che
temination of thc cxistifg situation regarding the Regional Office
at Alexandria, taking duc accaunt of al1 the practical arrangements
needed ta effecs an crderly and cguitsblc transfer a£ thc Office
to its new site.

3. With regard ro puestion 2,
3 4
By elevenvotes to two ,

Is of the opinion that, in the event of a decisian that thc
Regional Of fice sh~ll be rransferred from Egypt, the lrcgal rcspansitiilities
of the IJorId HfaltiQrsaaizatlon and E~ypt during the transitional period

betwecn the natifica~ionaZ the proposecl tramfer of tIic Office and the
accoqli~haent therenf are to fülfil in gond faith the nutualobligaticns
whlch the Court Iras set out in answering questicn 1.
. .

%res ident Sir Buqhrey Waldock; Vice-Presidcnt Bl ias ;
Judges Forster, Gros, Nagendra Singh, Ruda, E~sler, Oda, Ago, ET-Erian,
Sette-Czmara. ,

4~udges Lachs and Mororov. Pinnex to PressCommuniqué $0114

Judge Horozov voted againsr the Advisory Opinion Lecause in substance
it is an attempt ta ir~voive the Court in rhe handling of oi~c of the çori-
sequençes of a.serious poli tical con2lict: exioting Ln the Middle East . This

conflict is direct17 reiarcd to the catise of the increasirigly tonse situation
in the Eastern Medi terranean Region, which reçults f rom the Agreement signed
at Camp David Ln the USA on 27 aeptenber 1978 vliich, as was said particularly
in the iJritten Staten~ent pcesented to t!ie Coiire by the Yyriai? Arab Republic
1prevented thc ragion frcsii achicving the comprnhensiveand truc peace called
by the Arab States",

According to the dissenting opinion, the Ccurt r~hich, by virtu~ of
Article65 of its Statute,has a di~cretionaryriglit t.o give or nCrt I:0give-
- anAdvisoryOpinion, çhouldin this casedeclinetodelXveranOpinionin
order to avold ai;embarrassidg situation nhcre Lt woulc! be involved in handling
a dispute het:ween States with a defjnite political character.

Jüdge Morazov also ~xprexsed thc view that the Court, men from the

point of view of those who consider that the Request of the WO is E purely
legal one, acted wronely %$en in substance it changed the two questions
subnitted by the WHO into questions of itç owr?. Thus Question1 on thc
applicability of Section 37 of the 1951 Agreementwas replacedby the question
Iunder what conditions and in nccordancewith what moda1itie.s a trmef~r of
the Regional Office from Egypt may be ~ffeeted?" flic szme attempt to redraft:
was also made in relation to Question 2.

/
The refcrences niade to the preiririus przcttçe ~f the Court do not In his
view Justilysvch ki-ildof redrazeiae, which, as a natter !3fprinciple, ie
incompatible with the judiciai functions of thc Court as defincd in Chapter IV
of its Statutc. lbreorrer the Court tacitly rec~~izes that Secticn37 of the
1351 hgrcernent is not applicable to the qzestfvc of the trançfer of the office
@ brcaussitdoesnotgivethennsrier Loqursfionl~ubnittedby thoWHO.

Judge Yirozov considered that certain recomend~tlons whichwere made
by the Court tc the 1Td0 are in substancenot an mswcr to its request. They
constitute attempts tci interfere witk t!reartivity of the 'WHOwhlck,in a
accordance with its Constitution, has an exclusive right to take Che decision
relating to the estabflshnient of its Regional Offices, and consequentlg to the
transfer thereuf , including al1 steps for thc iriiplementation af thc dzcision
concerned.