20 December 1980

 

General List No. 65

 
     

international Court of Justice

     
 

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt

 
     
     
 

Advisory Opinion

 
     
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BEFORE: President: Humphrey Waldock;
Vice-President : Elias;
Judges: Forster, Gros, Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1980.12.20_WHO_Egypt.htm
   
Citation: Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 1980 I.C.J. 73 (Dec. 20)
 
     
 
 
     
 

[p.73]
Concerning the interpretation of the Agreement signed on 25 March 1951 between the World Health Organization and the Government of Egypt,

The Court,
composed as above,

gives the following Advisory Opinion:

1. The questions upon which the advisory opinion of the Court has been requested were laid before the Court by a letter dated 21 May 1980, received in the Registry on 28 May 1980, addressed by the Director-General of the World [p 74]Health Organization to the Registrar. In that letter the Director-General informed the Court of resolution WHA33.16 adopted by the World Health Assembly on 20 May 1980, in accordance with Article 96, paragraph 2, of the Charter of the United Nations, Article 76 of the Constitution of the World Health Organization, and Article X, paragraph 2, of the Agreement between the United Nations and the World Health Organization, by which the Organization had decided to submit two questions to the Court for advisory opinion. The text of that resolution is as follows:

"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,

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 provisions of Section 37 of the Agreement between the World Health Organization and Egypt of 25 March 1951,

Noting further that the Working Group of the Executive Board 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 Organization 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 15 November 1947, to submit to the International Court of Justice for its Advisory Opinion the following questions:

'1. Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health 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 notice and termination of the Agreement? ' "

2. By letters dated 6 June 1980, the Registrar, pursuant to Article 66, paragraph 1, of the Statute of the Court, gave notice of the request for advisory opinion to all States entitled to appear before the Court.

3. The President of the Court, having decided pursuant to Article 66, paragraph 2, of the Statute, that those States Members of the World Health Organization who were also States entitled to appear before the Court, and the Organization itself, were likely to be able to furnish information on the question submitted to the Court, made an Order on 6 June 1980 fixing 1 September 1980 as the time-limit within which written statements might be submitted by those States. Accordingly, the special and direct communication provided for in [p 75] Article 66, paragraph 2, of the Statute was included in the above-mentioned letters of 6 June 1980 addressed to those States, and a similar communication was addressed to the WHO.

4. The following States submitted written statements to the Court within the time-limit fixed by the Order of 6 June 1980; Bolivia, Egypt, Iraq, Jordan, Kuwait, Syrian Arab Republic, United Arab Emirates, United States of America. The texts of these statements were transmitted to the States to which the special and direct communication had been sent, and to the WHO.

5. Pursuant to Article 65, paragraph 2, of the Statute and Article 104 of the Rules of Court, the Director-General of the WHO transmitted to the Court a dossier of documents likely to throw light upon the questions. This dossier was received in the Registry on 11 June 1980; it was not accompanied by a written statement, a synopsis of the case or an index of the documents. In response to requests by the President of the Court, the WHO supplied the Court, for its information, with a number of additional documents, and the International Labour Organisation supplied the Court with documents of that Organisation regarded as likely to throw light on the questions before the Court.

6. By a letter of 15 September 1980, the Registrar requested the States Members of the WHO entitled to appear before the Court to inform him whether they intended to submit an oral statement at the public sittings to be held for that purpose, the date fixed for which was notified to them at the same time.

7. Pursuant to Article 106 of the Rules of Court, the Court decided to make the written statements submitted to the Court accessible to the public, with effect from the opening of the oral proceedings.

8. In the course of three public sittings held on 21, 22 and 23 October 1980, oral statements were addressed to the Court by the following representatives:

For the United Arab Emirates: Mr. Mustafa Kamil Yasseen, Special
Counsellor of the Mission of the United
Arab Emirates at Geneva.
For the Republic of Tunisia: Mr. Abdelhawab Ch!!!erif, Counsellor, Em-
bassy of Tunisia at The Hague.
For the United States of A merica: Mr. Stephen M. Schwebel, Deputy Legal
Adviser, Department of State.
For the Syrian Arab Republic: Mr. Adnan Nachab!!!e, Legal Adviser to the
Ministry of Foreign Affairs.
For the Arab Republic of Egypt: H.E. Mr. Ahmed Osman, Ambassador of
Egypt to Austria.

In reply to a question by the President, Mr. Claude-Henri Vignes, Director of the Legal Division of the WHO, stated at the public sitting that the WHO did not intend to submit argument to the Court on the questions put in the request for Opinion, but that he would be prepared, on behalf of the Director-General, to answer any question that the Court might put to him. Questions were put by Members of the Court to the Government of Egypt and to the WHO; replies were given by the representative of Egypt and by the Director of the Legal Division of the WHO, and additional observations were made by the representatives of the United States of America and the United Arab Emirates.[p 76]

9. At the close of the public sitting held on 23 October 1980, the President of the Court indicated that the Court remained ready to receive any further observations which the Director of the Legal Division of the WHO or the representatives of the States concerned might wish to submit in writing within a stated time-limit. In pursuance of this invitation, the Governments of the United States of America and Egypt transmitted certain written observations to the Court on 24 October and 29 October 1980 respectively; copies of these were supplied to the representatives of the other States which had taken part in the oral proceedings, as well as to the WHO. Certain further documents were also supplied to the Court by the WHO after the close of the oral proceedings, in response to a request made by a Member of the Court.

***

10. The first, and principal, question submitted to the Court in the request is formulated in hypothetical terms:

"1. Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health 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?"

But a rule of international law, whether customary or conventional, does not operate in a vacuum; it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part. Accordingly, if a question put in the hypothetical way in which it is posed in the request is to receive a pertinent and effectual reply, the Court must first ascertain the meaning and full implications of the question in the light of the actual framework of fact and law in which it falls for consideration. Otherwise its reply to the question may be incomplete and, in consequence, ineffectual and even misleading as to the pertinent legal rules actually governing the matter under consideration by the requesting Organization. The Court will therefore begin by setting out the pertinent elements of fact and of law which, in its view, constitute the context in which the meaning and implications of the first question posed in the request have to be ascertained.

*

11. The existence at the present day of a Regional Office of the World Health Organization located at Alexandria has its origin in two main circumstances. One is the policy adopted by the WHO in 1946, which is expressed in Chapter XI of the text of its Constitution, of establishing regional health organizations designed to be an integral part of the Organization. The other is the fact that at the end of the Second World War there existed at Alexandria a health Bureau which, pursuant to that policy [p 77]and by agreement between Egypt and the WHO, was subsequently incorporated in the Organization in the manner hereafter described.

12. Article 44 of the WHO Constitution empowers the World Health Assembly to define geographical areas in which it is desirable to establish a regional organization and, with the consent of a majority of the members of the Organization situated within the area, to establish the regional organization. It also provides that there is not to be more than one regional organization in each area. Articles 45 and 46 proceed to lay down that each such regional organization is to be an integral part of the Organization and to consist of a regional committee and a regional office. Articles 47-53 then set out rules to regulate the composition, functions, procedure and staff of regional committees. Finally, Article 54, which contains special provisions regarding the "integration" of pre-existing inter-governmental regional health organizations, reads as follows:

"The Pan American Sanitary Organization represented by the Pan American Sanitary Bureau and the Pan American Sanitary Conferences, and all other inter-governmental regional health organizations in existence prior to the date of signature of this Constitution, shall in due course be integrated with the Organization. This integration shall be effected as soon as practicable through common action based on mutual consent of the competent authorities expressed through the organizations concerned."

The above-mentioned provisions of Chapter XI are thus the constitutional framework within which the WHO came to establish its regional office in Egypt.

13. The existence of a health bureau in Alexandria dates back to the creation of a general Board of Health in Egypt in 1831 for the purpose of preventing the spread of cholera and other diseases by and among pilgrims on the way to and from Mecca. This Board subsequently acquired a certain international character as a result of the association with its quarantine work of seven representatives of States having rights in Egypt under the capitulations regime; and in 1892 its character as an international health agency became more pronounced as a result of changes in the structure of its council effected by the International Sanitary Convention of Venice of that year. In this form the Conseil sanitaire maritime et quarantenaire d'Egypte operated successfully for over forty years, during which, by arrangement with the Office international d'hygiène publique and pursuant to the International Sanitary Convention of 1926, it also functioned as the Regional Bureau of Epidemiological Intelligence for the Near East. In 1938, at the request of the Egyptian Government, it was decided, at the International Sanitary Conference of that year that the Conseil sanitaire should be abolished and its functions assumed by the governments of Egypt and the other countries concerned, but this did not involve the suppression of the Regional Bureau of Epidemiological Intelligence. The new Bureau, although placed under the authority of the Egyptian Gov-[p 78]ernment, was to have the same international character as the former Bureau; the Egyptian Government was to set up a commission including technical representatives of the affiliated countries. From 1938 onwards the expenses of the Bureau were wholly borne by the Egyptian Government. The Second World War broke out before the projected commission had been constituted, and from December 1940 until the end of hostilities the work of the Alexandria Bureau was taken over by a special wartime service under the Quarantine Department of the Egyptian Ministry of Public Health. After the hostilities had ended, the Bureau resumed its operations.
14. It has not been made entirely clear to the Court what was the exact situation in regard to the Alexandria Sanitary Bureau as a result of the events just described. But it was operating under Egypt's Ministry of Public Health when in 1946, and before the WHO Constitution had been adopted, Egypt raised the question of the relation of the Bureau to the Organization. Even before that, the members of the newly created League of Arab States had taken a decision in favour of using the Alexandria Bureau as their regional sanitary bureau. Meanwhile, however, the Alex-andria Bureau was continuing to operate under the Egyptian sanitary authorities rather than as an inter-governmental institution. On the other hand, the projected association of the Bureau with the League of Arab States, the international character of its functions and its previous status may have led to the Bureau being regarded as an inter-governmental institution. This no doubt explains why, as will now be seen, the Alexandria Sanitary Bureau, despite any question there may have been as to its inter-governmental character, was in fact dealt with by the Organization as a case of integration under Article 54 of the WHO Constitution.

15. On 6 March 1947, at the direction of the WHO Interim Commission, the Executive Secretary of the Commission sent a circular letter to member governments enquiring as to whether they might wish to have either the headquarters of the organization or the seat of a regional office located on their territory and as to the facilities they could offer. Soon afterwards he was also directed to get in touch with the authorities "of the Pan Arab Sanitary Organization", and wrote on 2 May 1947 for information to the Egyptian Minister of Public Health. Replying on 26 July 1947, the Egyptian Minister supplied him with a memorandum giving an account of the history and activities of the "Pan Arab Regional Health Bureau" from 1926 onwards. When, on the basis of the memorandum, a recommendation was made by the Committee on Relations to the Interim Commission in September 1947 that negotiations should be started with the "Pan Arab Sanitary Organization", objection was taken that the Pan Arab Sanitary Bureau did not really exist. Some delegates observed that the negotiations should rather be with the Egyptian Government and, ultimately, it was with the Egyptian Government that the negotiations concerning the Bureau took place. In fact, the next development was a reply from the Egyptian Government to the Executive Secretary's circular [p 79] letter in which the Government stated that the competent authorities had declared that they were most anxious to see a regional bureau established at Alexandria, which could deal with all questions coming within the scope of the WHO for the entire Middle East.

16. Matters then began to move more quickly. It appears from a report submitted to the Interim Commission in May 1948, mentioned below, that early in January 1948 quarantine experts of the Arab countries met in Alexandria and passed a number of resolutions in favour of establishing a regional organization. This was to be composed of the member States of the League of Arab States and, it was contemplated, certain other States in the region; it was to have a regional committee similarly composed; and it was to use the Alexandria Bureau as its regional office. These resolutions were adopted in the light of the fact that the WHO was to take over the functions of pre-existing regional health organizations. The next step was an invitation from the Egyptian Ministry of Public Health to Dr. Stampar, Chairman of the Interim Commission, to visit Egypt and study on the spot the conditions for setting up the proposed regional organization. In May 1948 a substantial report, referred to above, was duly submitted by the Chairman of the Interim Commission in which he gave a detailed account of the past history and current activities of the Alexandria Bureau and set out the arguments in favour of it as the regional health centre for the Near and Middle East. He ended the report with the conclusion:

"we are bound to admit that the conditions which predestinate Alexandria to be the centre of the future regional health organization for the Near and the Middle East are literally unique".

The Constitution of the WHO had now come into force and the question of the Alexandria Bureau was discussed in the Committee on Headquarters and Regional Organization at the first session of the new World Health Assembly. Mention was made of the facts that most of the member States of the Eastern Mediterranean area had agreed to the proposal for the establishment of a regional organization in that area, that the Alexandria Bureau was a pre-existing sanitary bureau, and that preliminary steps had already been taken for the final integration of this bureau with the WHO. Taking those facts into account the Committee recommended that the Executive Board should be instructed to integrate the Bureau with the WHO as soon as practicable, through common action, "in accordance with Article 54 of the WHO Constitution", and this recommendation was approved by the World Health Assembly on 10 July 1948 (resolution WHA1.72).

17. The Director-General of the WHO then proceeded to organize the setting up of a Regional Committee for the Eastern Mediterranean and an agenda was drawn up for its inaugural meeting due to take place on 7 February 1949. Earlier, the Executive Secretary of the Interim Commission had negotiated successfully with the Swiss Government the text of an [p 80]agreement for the WHO's headquarters in Geneva which had been approved by the First World Health Assembly on 17 July 1948 and by Switzerland on 21 August 1948; and a model host agreement had been prepared in the WHO for use in negotiations concerning the seats of regional or local WHO offices. Accordingly, when the agenda was drawn up for the Regional Committee's inaugural meeting on 7 February 1949, included in it was the question of a "Draft Agreement with the Host Government of the Regional Office".

18. At the Regional Committee's meeting the Egyptian Delegation informed the Committee on 7 February 1949 that the Egyptian Council of Ministers had just

"agreed, subject to approval of the Parliament, to lease to the World Health Organization, for the use of the Regional Office for the Eastern Mediterranean area, the site of land and the building thereon which are at present occupied by the Quarantine Administration and the Alexandria Health Bureau, for a period of nine years at a nominal annual rent of P.T.10".

The Committee next took up the question of the location of the Regional Office for the Eastern Mediterranean area. A motion was introduced, which the Committee at once approved, "to recommend to the Director-General and the Executive Board, subject to consultation with the United Nations, the selection of Alexandria as the site of the Regional Office". The recitals in the formal resolution to that effect, adopted the following day referred, inter alia, to "the desirability of the excellent site and buildings under favourable conditions generously offered by the Government of Egypt".

19. The Regional Committee also addressed itself to the question of the integration of the Alexandria Sanitary Bureau with the WHO. After recalling that a Committee of the Arab States had previously voted in favour of the integration, the Egyptian delegate observed that, should this happen, "the WHO would have to take over expenses from the date of opening of the Regional Office". A few brief explanations having been given, the Committee adopted a resolution recommending the integration of the Bureau in the following terms:

"Resolves to recommend to the Executive Board that in establishing the Regional Organization and the Regional Office for the Eastern Mediterranean the functions of the Alexandria Sanitary Bureau be integrated within those of the Regional Organization of the World Health Organization."

The Egyptian delegate responded by presenting a written statement to the Committee to the effect that, taking into account the resolution just adopted, his Government was pleased to transfer to the World Health Organization the functions and all related files and records of the Alexandria Sanitary Bureau. The statement went on to say that this transfer [p 81] would be made on the date on which the Organization notified the Government of Egypt of the commencement of operations in the Regional Office for the Eastern Mediterranean Region. That statement having met with warm thanks from the Committee, the Egyptian delegate proposed that the work of the Regional Office should begin in July 1949 and this proposal was adopted.

20. The Director-General now raised the question of the "Draft Agreement with the Host Government" which he had included in the Agenda. He said he wished to inform the Committee that "such a draft agreement had been produced and handed to the Egyptian Government where it was under study in the legal department". He also stated that the WHO, "though always considering necessary formalities, never allowed them to interfere with Health Work", and the Egyptian delegate then added the comment that, should there be any difference of opinion between the WHO and the legal expert, this could be settled by negotiation.

21. The question passed to the Executive Board of the WHO which, in March 1949, adopted resolution EB3.R30 "conditionally" approving selection of Alexandria as the site of the Regional Office, "subject to consultation with the United Nations". That resolution went on to request the Director-General to thank Egypt for "its generous action" in placing the site and buildings at Alexandria at the disposal of the Organization for nine years at a nominal rent. Next, it formally approved the establishment of the Regional Office for the Eastern Mediterranean and the commencement of its operations on or about 1 July 1949. The resolution then endorsed the Regional Committee's recommendation that the "functions" of the Alexandria Sanitary Bureau be "integrated" within those of the Regional Organization. It further authorized the Director-General to express appreciation to the Egyptian Government for the transfer of the "functions, files and records of the Alexandria Sanitary Bureau to the Organization upon commencement of operations in the Regional Office". The resolution did not deal with the projected host agreement still under negotiation with the Egyptian Government. Pursuant to the Agreement between the WHO and the United Nations which came into force on 10 July 1948 (Article XI), the consultation with the United Nations referred to in the resolution was effected in May 1949. This confirmed the selection of Alexandria as the site of the Regional Office.

22. However the draft host agreement, which necessarily had implications not only for the Ministry of Public Health but for other departments of the Egyptian administration, it would seem, had been undergoing close examination. As appears from a letter of 4 May 1949 from the Ministry of Foreign Affairs to Sir Ali Tewfik Shousha Pasha, then Under-Secretary of State for Public Health but already designated as the first WHO Regional Director for the Eastern Mediterranean, he had been discussing the draft agreement with the Foreign Ministry during April. In that letter the Foreign Ministry referred to the draft agreement as one [p 82]
"which the World Health Organization intends to conclude with the Egyptian Government on the privileges and immunities to be enjoyed by its regional office which will be established in Alexandria as well as the staff of that office".

It explained that it was enclosing a copy of the memorandum prepared by the Contentieux (legal department) of the Ministries of Foreign Affairs and Justice, setting out their comments on the draft agreement, together with a revised draft. The memorandum stated that, in studying the pro-visions of the draft, the Contentieux had also had regard to various other agreements concluded, or in course of conclusion, between individual States and specialized agencies on the occasion of the latter establishing headquarters or regional offices in their territories. In this connection, it made mention of the headquarters agreements already concluded by France with the United Nations Educational, Scientific and Cultural Organization, and by Switzerland with WHO itself, as well as draft agreements still under negotiation by France and Peru with the International Civil Aviation Organization regarding the seats of regional offices to be established in their territories. The memorandum went on to suggest numerous changes in the provisions of the agreement and gave detailed explanations of the amendments which the Contentieux wished to see in the draft. The memorandum and revised draft, it appears from a later note of Sir Ali Tewfik Shousha Pasha, were then transmitted to the Director-General of the WHO. It also appears from letters of 29 May and 4 June 1949 supplied to the Court by the WHO that some further exchanges took place between him and the Contentieux concerning the draft agreement at this time.

23. Meanwhile, however, the whole question of privileges and immunities for regional offices of international organizations had become at once more complicated and more pressing for the Egyptian administration. This was because by now Regional Bureaux for the Middle East had already been established in Cairo by the Food and Agriculture Organization of the United Nations, by ICAO and by Unesco, and because in any event it was becoming necessary to consider the question of Egypt's adherence to the Convention on the Privileges and Immunities of the Specialized Agencies. The general situation was laid before Egypt's Council of Ministers by the Foreign Minister in a Note of 25 May 1949. His Note ended with a proposal that, as a provisional measure the Council should grant to the staff of FAO, Unesco and WHO in their Regional Offices the same temporary exemption from customs dues on any articles and equipment imported from abroad and relating to their official work as was already enjoyed by ICAO. This proposal was endorsed by the Council of Ministers at a meeting four days later, and the Regional Director was so informed on 23 June. The operations of the Regional Office being due to commence on 1 July, the need to complete the negotiations for the host agreement had been under consideration by the World Health Assembly itself which passed a resolution on the subject on 25 June at its Second [p 83] Session. The Director-General was requested to continue the negotiations with the Government of Egypt in order to obtain an agreement extending privileges and immunities to the Regional Organization and to report to the next session. Pending the coming into force of that agreement, the Assembly invited the Government of Egypt to extend to the Organization the privileges and immunities set out in the Convention on the Privileges and Immunities of the Specialized Agencies. Egypt, however, had not yet adhered to that Convention, and it was only the Council of Ministers' decision authorizing, temporarily, exemption from customs dues that applied when the Regional Office commenced operations, as it did on the agreed date, 1 July 1949.

24. The Director-General continued the negotiations and on 26 July 1949 the WHO's comments on the Contentieux' memorandum were transmitted to the Egyptian Government, together with a revised draft of the host agreement and a draft lease of the site and buildings. On 9 November 1949, a host agreement on the same lines as the draft transmitted to Egypt was signed with the Government of India. In February 1950 the Executive Board noted the state of the negotiations; a letter of 23 March 1950 to the WHO Regional Director from the Contentieux of the Egyptian Government Ministries gave the impression that, subject to minor modifications, WHO's draft was acceptable to Egypt. In that belief the Third World Health Assembly passed a resolution in the following May affirming the Agreement in the form of the WHO's revised draft. Subsequently, however, the Regional Office reported that the Egyptian authorities were, in fact, asking for a number of fairly substantial alterations. As the Director-General considered the amendments requested to touch fundamental points of principle and therefore to be unacceptable, he went himself to Egypt and, in negotiations with the Egyptian authorities on 19 and 20 December 1950, persuaded them to drop the amendments which were the cause of the disagreement. The Egyptian authorities then expressed themselves as ready to accept the host agreement, subject to the approval of the Egyptian Parliament and to certain points being set out in an accompanying Exchange of Notes. Eventually, the Agreement was signed in Cairo on 25 March 1951 and was approved by the Fourth World Health Assembly in May, although one of the points in the Exchange of Notes had given rise to some discussion in the Legal Sub-Committee. The Egyptian Parliament gave its approval towards the end of June and the long-negotiated host agreement finally entered into force on 8 August 1951. As to the lease of the site and buildings of the former Sanitary Bureau to the WHO, which under an Egyptian law also required Parliamentary approval, its execution was not completed until 1955, the operation of the lease then being expressed to have begun several years earlier on 1 July 1949.

25. Mention has finally to be made of an Agreement for the provision of services by the WHO in Egypt, signed on 25 August 1950. At the same time the Court notes that, according to the Director of the Legal Division of the [p 84] Organization, this Agreement does not have any particular connection with the setting up of the Regional Office in Egypt. The 1950 Agreement, he explained, is simply a standard form of agreement for the execution of technical co-operation projects, similar to Agreements concluded with other member States which have no WHO office situated on their territories.

26. The position appearing from the events which the Court has so far set out may be summarized as follows. During the early years of the WHO, Egypt raised the question of the relation to the new Organization of the existing long-established Alexandria Sanitary Bureau, and the Interim Commission of the WHO in turn approached Egypt regarding the integration of the existing Bureau with the Organization and the location of the WHO's Regional Office for the Eastern Mediterranean in Alexandria. Agreement was then reached between the WHO and Egypt early in 1949 that the operation of the Alexandria Bureau should be taken over by the WHO in July of that year. That agreement was arrived at on the basis of offers by the Egyptian Government to lease to the Organization for the use of the Regional Office for the Eastern Mediterranean the site and buildings of the existing Alexandria Bureau, and to transfer to the Organization the functions and all related files and records of the Bureau. Egypt's offers were accepted by the Organization which, on its part, undertook to assume financial responsibility for the Bureau on the date of the opening of the Regional Office; and it was then decided that the date should be 1 July 1949. These arrangements were approved by the Egyptian Government and were endorsed by the Organization specifically as an integration of a pre-existing institution under Article 54 of its Constitution. Temporary exemption from customs dues having been provided by Egypt's Council of Ministers, the WHO's Regional Office commenced operating at the seat of the former Sanitary Bureau on 1 July 1949.
27. Meanwhile, negotiations for the conclusion of a host agreement for the Regional Office, begun at least five months earlier, had been making slow progress and were not completed until nearly two years later. On 25 March 1951, however, the Agreement, Section 37 of which is the subject of the present request, was signed and ultimately entered into force on 8 August of that year. That agreement, in the words of its preamble, was concluded:

"for the purpose 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 other related matters".

Its provisions followed closely those of the model host agreement prepared in the WHO, and are for the most part typical of those found in host agreements of headquarters or regional or local offices of international [p 85] organizations. These provisions are on the lines of the Convention of 21 November 1947 on the Privileges and Immunities of the Specialized Agencies, to which Egypt became a party on 28 September 1954. Under Section 39 of that Convention, however, the Agreement of 25 March 1951 continued to be the instrument defining the legal status of the Regional Office in Alexandria as between the WHO and Egypt.

*

28. The Court must now turn to the circumstances which have led to the submission of the present request to the Court. Ever since beginning its activities in Egypt on 1 July 1949, the WHO's Regional Office has operated continuously at the site of the former Sanitary Bureau in Alexandria. In doing so, however, it has encountered certain difficulties stemming from the tense political situation in the Middle East. Those difficulties are reflected in the fact that in 1954 the World Health Assembly found it necessary to divide the Committee into two sub-committees: Sub-Committee A in which Israel was not, and Sub-Committee B in which it was, represented.

29. On 7 May 1979 the Regional Director received a letter from the governments of five member States of the Region requesting the convening of an extraordinary meeting of the Regional Committee to discuss transferring the Regional Office from Alexandria to one of the other Arab member States. A special session of Sub-Committee A was held on 12 May 1979, attended by representatives of 20 States, but not by Egypt which had asked for the session to be postponed. Sub-Committee A adopted a resolution reciting the wish of the majority of its members that the Regional Office should be transferred to another State in the Region and recommending its transfer. Meanwhile, the question had also been placed on the agenda for the thirty-second Session of the World Health Assembly; and on 16 May 1979 the Egyptian delegation submitted a Memorandum alleging certain procedural irregularities and objecting that the request for transfer was "politically motivated". The question was referred to a Committee which expressed the view that the effects of the implementation of such a decision by the Assembly needed study and recommended that the study be undertaken by the Executive Board.

30. The World Health Assembly adopted the recommendation of the Committee and, on 28 May 1979, the Executive Board set up a Working Group to study all aspects of the matter and report back in January 1980. The Working Group's report, dated 16 January 1980 (which is in the dossier of documents supplied to the Court), included a section entitled "Question of denunciation of the existing Host Agreement", as to which it said:

"The Group considered that it was not in a position to decide whether or not Section 37 of the Agreement with Egypt is applicable. The final position of the Organization on the possible discrepancies of [p 86] views will have to be decided upon by the Health Assembly ... the International Court of Justice could also possibly be requested to provide an advisory opinion under Article 76 of the WHO Constitution."

The Executive Board accordingly transmitted the Working Group's report to the World Health Assembly for consideration and decision.

31. A further special session of Sub-Committee A of the Regional Committee for the Eastern Mediterranean was held in Geneva on 9 May 1980, attended by representatives of 20 States, including Egypt. A resolution was adopted, by 19 votes to 1 (that of Egypt) whereby the Sub-Committee decided to recommend the transfer of the Regional Office for the Eastern Mediterranean to Amman, Jordan, as soon as possible. The representative of Egypt objected that the recommendation was, in his view, based on purely political considerations. The question was again referred to the World Health Assembly at its thirty-third session, and at Egypt's request the text of the 1951 Host Agreement was distributed to member States. At its meeting on 16 May 1980, the Committee concerned had before it a draft resolution submitted by 20 Arab States under which the Health Assembly would decide to transfer the Regional Office to Amman, Jordan, as soon as possible. Before it also was a draft resolution submitted by the United States under which the Assembly would decide, "prior to taking any decision on removal of the Regional Office" to request an advisory opinion of the Court in the terms in which the request has been submitted to the Court. In the course of the debate the Arab States stressed the wish of the great majority of the member States of the Region to transfer the office from Egypt and the harm which they considered its retention in Alexandria would do to the work of the Organization. A number of other States, on the other hand, questioned the desirability of transferring a regional health office for political reasons and expressed doubts regarding the practical aspects of the transfer. The Egyptian delegate, inter alia, invoked Section 37, pointing out problems involved in its interpretation. The United States resolution was endorsed by the Committee which recommended its adoption to the World Health Assembly. Three days later, on 19 May, the representatives of 17 Arab States addressed a letter to the Director-General of the Organization informing him of their decision completely to "boycott" the Regional Office in its present location, not to have any dealings with it as from that date, and to deal directly with Headquarters in Geneva.

32. When the Committee's recommendation was considered by the World Health Assembly at a Plenary Meeting on 20 May, the delegate of Jordan disputed the relevance of Section 37 to the question of the transfer of the Regional Office from Egypt, and called for an opinion to be given by the Director of the Legal Division of the Organization. The latter then gave certain explanations as to the problems which he considered to be involved in the interpretation of Section 37 and added that he was not for the moment able to enlighten it further. The Assembly thereupon adopted the [p 87] draft resolution recommended by the Committee, the full text of which has been given in the opening paragraph of this Opinion. The resolution, the Court observes, in setting out the Assembly's decision to submit the present request to the Court, explained in recitals the reasons why the Assembly found it necessary to do so. In those recitals the Assembly took note of "the differing views" which had been expressed on the question of whether the Organization "may transfer the Regional Office without regard to the provisions of Section 37 of the Agreement between the World Health Organization and Egypt of 25 March 1951"; and it further noted that the Working Group of the Executive Board had been "unable to make a judgment or a recommendation on the applicability of Section 37 of this Agreement".

*

33. In the debates in the World Health Assembly just referred to, on the proposal to request the present opinion from the Court, opponents of the proposal insisted that it was nothing but a political manoeuvre designed to postpone any decision concerning removal of the Regional Office from Egypt, and the question therefore arises whether the Court ought to decline to reply to the present request by reason of its allegedly political character. In none of the written and oral statements submitted to the Court, on the other hand, has this contention been advanced and such a contention would in any case, have run counter to the settled jurisprudence of the Court. That jurisprudence establishes that if, as in the present case, a question submitted in a request is one that otherwise falls within the normal exercise of its judicial process, the Court has not to deal with the motives which may have inspired the request (Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, pp. 61-62; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, pp. 6-7; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155). Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution.

**

34. Having thus examined the factual and legal context in which the present request for an advisory opinion comes before it, the Court will now consider the full meaning and implications of the hypothetical questions on which it is asked to advise. Since those are formulated in the request by reference to the applicability of Section 37 of the Agreement of 25 March 1951 to a transfer of the Regional Office from Egypt, it is necessary at once [p 88] to turn to the provisions of that Section. Included in the 1951 Agreement as one of its "Final Provisions", Section 37 reads:

"Section 37. The present Agreement may be revised at the request of either party. In this event the two parties shall consult each other concerning the modifications to be made in its provisions. If the negotiations do not result in an understanding within one year, the present Agreement may be denounced by either party giving two years' notice."

The "differing views" in the World Health Assembly as to the applicability of these provisions to a transfer of the Regional Office from Egypt, which are mentioned in the recitals to the resolution, concerned various points. One of these was whether a transfer of the seat of the Regional Office from Egypt is or is not covered by the provisions of the 1951 Agreement which to a large extent deal with privileges, immunities and facilities. Another was whether the provisions of Section 37 relate only to the case of a request by one or other party for revision of provisions of the Agreement relating to the question of privileges, immunities and facilities or are also apt to cover its total revision or outright denunciation. But the differences of view also involved further points, as appears from the debates and from the explanations given by the Director of the Legal Division of the WHO at the World Health Assembly's meeting of 20 May. Dealing with a question from the delegate of Jordan about the two years' notice provided for in Section 37, the Director of the Legal Division referred to the enlightenment to be obtained on the point by comparing the provisions in other host agreements. He also drew attention to the possibility of referring to the applicable general principles of international law, emphasizing the relevance in this connection of Article 56 of the International Law Commission's draft articles on treaties concluded between States and international organizations or between international organizations.

35. Accordingly, it is apparent that, although the questions in the request are formulated in terms only of Section 37, the true legal question under consideration in the World Health Assembly is: What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected? This, in the Court's opinion, must also be considered to be the legal question submitted to it by the request. The Court points out that, if it is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction, it must ascertain what are the legal questions really in issue in questions formulated in a request (cf. A admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 26, and see also p. 37; Certain Expenses of the United Nations (Article 17, paragraph 2, of the [p 89] Charter), Advisory Opinion, I. C.J. Reports 1962, pp. 156-158). It also points out in this connection that the Permanent Court of Internationa] Justice, in replying to requests for an advisory opinion, likewise found it necessary in some cases first to ascertain what were the legal questions really in issue in the questions posed in the request (cf. Jaworzina, Advisory Opinion, 1923, P.C.I.J., Series B, No. 8, p. 282; Interpretation of the Greco-Turkish Agreement of I December 1926, Advisory Opinion, 1928, P.C.I.J., Series B, No. 16, pp. 5-16). Furthermore, as the Court has stressed earlier in this Opinion, a reply to questions of the kind posed in the present request may, if incomplete, be not only ineffectual but actually misleading as to the legal rules applicable to the matter under consideration by the requesting Organization. For this reason, the Court could not adequately discharge the obligation incumbent upon it in the present case if, in replying to the request, it did not take into consideration all the pertinent legal issues involved in the matter to which the questions are addressed.


36. The Court will therefore now proceed to consider its replies to the questions formulated in the request on the basis that the true legal question submitted to the Court is: What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected?

***

37. The Court thinks it necessary to underline at the outset that the question before it is not whether, in general, an organization has the right to select the location of the seat of its headquarters or of a regional office. On that question there has been no difference of view in the present case, and there can be no doubt that an international organization does have such a right. The question before the Court is the different one of whether, in the present case, the Organization's power to exercise that right is or is not regulated by reason of the existence of obligations vis-à-vis Egypt. The Court notes that in the World Health Assembly and in some of the written and oral statements before the Court there seems to have been a disposition to regard international organizations as possessing some form of absolute power to determine and, if need be, change the location of the sites of their headquarters and regional offices. But States for their part possess a sovereign power of decision with respect to their acceptance of the headquarters or a regional office of an organization within their territories; and an organization's power of decision is no more absolute in this respect than is that of a State. As was pointed out by the Court in one of its early Advisory Opinions, there is nothing in the character of international organizations to justify their being considered as some form of "super-State" (Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 179). International organizations are subjects of international law and, as such, are bound by [p 90] any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties. Accordingly, it provides no answer to the questions submitted to the Court simply to refer to the right of an international organization to determine the location of the seat of its regional offices.

*

38. The "differing views" expressed in the World Health Assembly regarding the relevance of the Agreement of 25 March 1951, and regarding the question whether the terms of Section 37 of the Agreement are applicable in the event of any transfer of the Regional Office from Egypt, were repeated and further developed in the written and oral statements submitted to the Court. As to the relevance of the 1951 Agreement in the present connection, the view advanced on one side has been that the establishment of the Regional Office in Alexandria took place on 1 July 1949, pursuant to an agreement resulting either from Egypt's offer to transfer the operation of the Alexandria Bureau to the WHO and the latter's acceptance of that offer, or from Egypt's acceptance of a unilateral act of the competent organs of the WHO determining the site of the Regional Office. Proponents of this view maintain that the 1951 Agreement was a separate transaction concluded after the establishment of the Regional Office in Egypt had been completed and the terms of which only provide for the immunities, privileges and facilities of the Regional Office. They point to the fact that some other host agreements of a similar kind contain provisions expressly for the establishment of the seat of the Regional Office and stress the absence of such a provision in the 1951 Agreement. This Agreement, they argue, although it may contain references to the seat of the Regional Office in Alexandria, does not provide for its location there. On this basis, and on the basis of their understanding of the object of the 1951 Agreement deduced from its title, preamble, and text, they maintain that the Agreement has no bearing on the Organization's right to remove the Regional Office from Egypt. They also contend that the 1951 Agreement was not limited to the privileges, immunities and facilities granted only to the Regional Office, but had a more general purpose, namely, to regulate the above-mentioned questions between Egypt and the WHO in general.

39. Proponents of the opposing view say that the establishment of the Regional Office and the integration of the Alexandria Bureau with the WHO were not completed in 1949; they were accomplished by a series of acts in a composite process, the final and definitive step in which was the conclusion of the 1951 host agreement. To holders of this view, the act of transferring the operation of the Alexandria Bureau to the WHO in 1949 and the host agreement of 1951 are closely related parts of a single transaction whereby it was agreed to establish the Regional Office at Alexandria. Stressing the several references in the 1951 Agreement to the location of the Office in Alexandria, they argue that the absence of a specific provision regarding its establishment there is due to the fact that this [p 91] Agreement was dealing with a pre-existing Sanitary Bureau already established in Alexandria. In general, they emphasize the significance of the character of the 1951 Agreement as a headquarters agreement, and of the constant references to it as such in the records of the WHO and in official acts of the Egyptian State.
40. The differences regarding the application of Section 37 of the Agreement to a transfer of the Regional Office from Egypt have turned on the meaning of the word "revise" in the first sentence and on the interpretation then to be given to the two following sentences of the Section. According to one view the word "revise" can cover only modifications of particular provisions of the Agreement and cannot cover a termination or denunciation of the Agreement, such as would be involved in the removal of the seat of the Office from Egypt; and this is the meaning given to the word "revise" in law dictionaries. On that assumption, and on the basis of what they consider to be the general character of the 1951 Agreement, they consider all the provisions of the Section, including the right of denunciation in the third sentence, to apply only in cases where a request has been made by one or other party for a partial modification of the terms of the Agreement. They conclude that, in consequence, the 1951 Agreement contains no general right of denunciation and invoke the general rules expressed in the first paragraph of Article 56 of the Vienna Convention on the Law of Treaties and the corresponding provision of the International Law Commission's draft articles on treaties concluded between States and international organizations or between international organizations. Under those articles 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, inter alia, such a right may be implied by the nature of the treaty. Referring to opinions expressed in the International Law Commission that headquarters agreements of international organizations are by their nature agreements in which a right of denunciation may be implied under the articles in question, they then maintain that such a general right of denunciation is to be implied in the 1951 Agreement. The proponents of this view go on to argue that in any case the transfer of the Regional Office from Egypt is not a matter which can be said to fall within the provisions of Section 37, and that the removal of the seat of the Office from Egypt would not necessarily mean the denunciation of the 1951 Agreement.

41. Opponents of the view just described insist, however, that the word "revise" may also have the wider meaning of "review" and cover a general or total revision of an agreement, including its termination. According to them, the word has not infrequently been used with that meaning in treaties and was so used in the 1951 Agreement. They maintain that this is confirmed by the travaux preparatoires of Section 37, which are to be found in negotiations between representatives of the Swiss Government and the ILO concerning the latter's headquarters agreement with Switzerland. These negotiations, they consider, concern the specific question of the [p 92] establishment of the ILO's seat in Geneva and, while Switzerland wished in this connection to include a provision for denunciation in the agreement, the ILO did not. The result, they say, was the compromise formula, subsequently introduced into WHO host agreements, which provides for the possibility of denunciation, but only after consultation and negotiation regarding the revision of the instrument. In their view, therefore, the travaux preparatoires confirm that the formula in Section 37 was designed to cover revision of the location of the Regional Office's seat at Alexandria, including the possibility of its transfer outside Egypt. They further argue that this interpretation is one required by the object and purpose of Section 37 which, they say, was clearly meant to preclude either of the parties to the Agreement from suddenly and precipitately terminating the legal regime it created. The proponents of this view of Section 37 also take the position that, even if it were to be rejected and the Agreement inter-preted as also including a general right of denunciation, Egypt would still be entitled to notice under the general rules of international law. In this connection, they point to Article 56 of the Vienna Convention on the Law of Treaties and the corresponding article in the International Law Commission's draft articles on treaties concluded between States and international organizations or between international organizations. In both articles paragraph 2 specifically provides that in any case where a right of denunciation or withdrawal is implied in a treaty a party shall give not less than twelve months' notice of its intention to exercise the right.


42. The Court has described the differences of view regarding the application of Section 37 to a transfer of the Regional Office from Egypt only in a broad outline which does not reproduce all the refinements with which they have been expressed nor all the considerations by which they have been supported. If it has done this, it is because it considers that the emphasis placed on Section 37 in the questions posed in the request distorts in some measure the general legal framework in which the true legal issues before the Court have to be resolved. Whatever view may be held on the question whether the establishment and location of the Regional Office in Alexandria are embraced within the provisions of the 1951 Agreement, and whatever view may be held on the question whether the provisions of Section 37 are applicable to the case of a transfer of the Office from Egypt, the fact remains that certain legal principles and rules are applicable in the case of such a transfer. These legal principles and rules the Court must, therefore, now examine.

**

43. By the mutual understandings reached between Egypt and the Organization from 1949 to 1951 with respect to the Regional Office of the Organization in Egypt, whether they are regarded as distinct agreements or as separate parts of one transaction, a contractual legal regime was created [p 93] between Egypt and the Organization which remains the basis of their legal relations today. Moreover, Egypt was a member — a founder member - of the newly created World Health Organization when, in 1949, it transferred the operation of the Alexandria Sanitary Bureau to the Organization; and it has continued to be a member of the Organization ever since. The very fact of Egypt's membership of the Organization entails certain mutual obligations of co-operation and good faith incumbent upon Egypt and upon the Organization. Egypt offered to become host to the Regional Office in Alexandria and the Organization accepted that offer; Egypt agreed to provide the privileges, immunities and facilities necessary for the independence and effectiveness of the Office. As a result the legal relationship between Egypt and the Organization became, and now is, that of a host State and an international organization, the very essence of which is a body of mutual obligations of co-operation and good faith. In the present instance Egypt became host to the Organization's Regional Office, with its attendant advantages, and the Organization acquired a valuable seat for its office by the handing over to the Organization of an existing Egyptian Sanitary Bureau established in Alexandria, and the element of mutuality in the legal regime thus created between Egypt and the WHO is underlined by the fact that this was effected through common action based on mutual consent. This special legal regime of mutual rights and obligations has been in force between Egypt and WHO for over thirty years. The result is that there now exists in Alexandria a substantial WHO institution employing a large staff and discharging health functions important both to the Organization and to Egypt itself. In consequence, any transfer of the WHO Regional Office from the territory of Egypt necessarily raises practical problems of some importance. These problems are, of course, the concern of the Organization and of Egypt rather than of the Court. But they also concern the Court to the extent that they may have a bearing on the legal conditions under which a transfer of the Regional Office from Egypt may be effected.

44. The problems were studied by the Working Group set up by the Executive Board of WHO in 1979, and it is evident from the report of that Working Group that much care and co-operation between the Organization and Egypt is needed if the risk of serious disruption to the health work of the Regional Office is to be avoided. It is also apparent that a reasonable period of time would be required to effect an orderly transfer of the operation of the Office from Alexandria to the new site without disruption to the work. Precisely what period of time would be required is a matter which can only be finally determined by consultation and negotiation between WHO and Egypt. It is, moreover, evident that during this period the Organization itself would need to make full use of the privileges, immunities and facilities provided in the Agreement of 25 March 1951 in order to ensure a smooth and orderly transfer of the Office from Egypt to its new site. In short, the situation arising in the event of a transfer of the [p 94] Regional Office from Egypt is one which, by its very nature, demands consultation, negotiation and co-operation between the Organization and Egypt.

*

45. The Court's attention has been drawn to a considerable number of host agreements of different kinds, concluded by States with various international organizations and containing varying provisions regarding the revision, termination or denunciation of the agreements. These agreements fall into two main groups: (1) those providing the necessary regime for the seat of a headquarters or regional office of a more or less permanent character, and (2) those providing a regime for other offices set up ad hoc and not envisaged as of a permanent character. As to the first group, which includes agreements concluded by the ILO and the WHO, their provisions take different forms. The headquarters agreement of the United Nations itself, with the United States, which leaves to the former, the right to decide on its removal, provides for its termination if the seat is removed from the United States "except for such provisions as may be applicable in connection with the orderly termination of the operations of the United Nations at its seat in the United States and the disposition of its property therein". Other agreements similarly provide for cessation of the host agreement upon the removal of the seat, subject to arrangements for the orderly termination of the operations, while others, for example, provide for one year's or six months' notice of termination or denunciation, and there are other variants. The ad hoc type of agreement, on the other hand, commonly provides for termination on short periods of notice or by agreement or simply on cessation of the operations subject to orderly arrangements for bringing them to an end.

46. In considering these provisions, the Court feels bound to observe that in future closer attention might with advantage be given to their drafting. Nevertheless, despite their variety and imperfections, the provisions of host agreements regarding their revision, termination or denun-ciation are not without significance in the present connection. In the first place, they confirm the recognition by international organizations and host States of the existence of mutual obligations incumbent upon them to resolve the problems attendant upon a revision, termination or denuncia-tion of a host agreement. But they do more, since they must be presumed to reflect the views of organizations and host States as to the implications of those obligations in the contexts in which the provisions are intended to apply. In the view of the Court, therefore, they provide certain general indications of what the mutual obligations of organizations and host States to co-operate in good faith may involve in situations such as the one with which the Court is here concerned.

47. A further general indication as to what those obligations may entail is to be found in the second paragraph of Article 56 of the Vienna Con-[p 95] vention on the Law of Treaties and the corresponding provision in the International Law Commission's draft articles on treaties between States and international organizations or between international organizations. Those provisions, as has been mentioned earlier, specifically provide that, when a right of denunciation is implied in a treaty by reason of its nature, the exercise of that right is conditional upon notice, and that of not less than twelve months. Clearly, these provisions also are based on an obligation to act in good faith and have reasonable regard to the interests of the other party to the treaty.

**

48. In the present case, as the Court has pointed out, the true legal question submitted to it in the request is: What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected? Moreover, as it has also pointed out, differing views have been expressed concerning both the relevance in this connection of the 1951 Agreement and the interpretation of Section 37 of that Agreement. Accordingly, in formulating its reply to the request, the Court takes as its starting point the mutual obligations incumbent upon Egypt and the Organization to co-operate in good faith with respect to the implications and effects of the transfer of the Regional Office from Egypt. The Court does so the more readily as it considers those obligations to be the very basis of the legal relations between the Organization and Egypt under general international law, under the Constitution of the Organization and under the agreements in force between Egypt and the Organization. The essential task of the Court in replying to the request is, therefore, to determine the specific legal implications of the mutual obligations incumbent upon Egypt and the Organization in the event of either of them wishing to have the Regional Office transferred from Egypt.

49. The Court considers that in the context of the present case the mutual obligations of the Organization and the host State to co-operate under the applicable legal principles and rules are as follows:

— In the first place, those obligations place a duty both upon the Organization and upon Egypt to consult together in good faith as to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected.

— Secondly, in the event of its being finally decided that the Regional Office shall be transferred from Egypt, their mutual obligations of co-operation place a duty upon the Organization and Egypt to consult together and to negotiate regarding the various arrangements needed to effect the transfer from the existing to the new site in an orderly manner and with a minimum of prejudice to the work of the Organization and the interests of Egypt.

— Thirdly, those mutual obligations place a duty upon the party which [p 96] wishes to effect the transfer to give a reasonable period of notice to the other party for the termination of the existing situation regarding the Regional Office at Alexandria, taking due account of all the practical arrangements needed to effect an orderly and equitable transfer of the Office to its new site.

Those, in the view of the Court, are the implications of the general legal principles and rules applicable in the event of the transfer of the seat of a Regional Office from the territory of a host State. Precisely what periods of time may be involved in the observance of the duties to consult and negotiate, and what period of notice of termination should be given, are matters which necessarily vary according to the requirements of the particular case. In principle, therefore, it is for the parties in each case to determine the length of those periods by consultation and negotiation in good faith. Some indications as to the possible periods involved, as the Court has said, can be seen in provisions of host agreements, including Section 37 of the Agreement of 25 March 1951, as well as in Article 56 of the Vienna Convention on the Law of Treaties and in the corresponding article of the International Law Commission's draft articles on treaties between States and international organizations or between international organizations. But what is reasonable and equitable in any given case must depend on its particular circumstances. Moreover, the paramount consideration both for the Organization and the host State in every case must be their clear obligation to co-operate in good faith to promote the objectives and purposes of the Organization as expressed in its Constitution; and this too means that they must in consultation determine a reasonable period of time to enable them to achieve an orderly transfer of the Office from the territory of the host State.

50. It follows that the Court's reply to the second question is that the legal responsibilities of the Organization and Egypt during the transitional period between the notification of the proposed transfer of the Office and the accomplishment thereof would be to fulfil in good faith the mutual obligations which the Court has set out in answering the first question.

***

51. For these reasons,

The Court,

1. By twelve votes to one,

Decides to comply with the request for an advisory opinion;

In favour: President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian and Sette-Camara;

Against: Judge Morozov; [p 97]



2. With regard to Question 1,

By twelve votes to one,

Is of the opinion that in the event specified in the request, the legal principles and rules, and the mutual obligations which they imply, regarding consultation, negotiation and notice, applicable as between the World Health Organization and Egypt are those which have been set out in paragraph 49 of this Advisory Opinion and in particular that:

(a) their mutual obligations under those legal principles and rules place a duty both upon the Organization and upon Egypt to consult together in good faith as to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected;

(b) in the event of its being finally decided that the Regional Office shall be transferred from Egypt, their mutual obligations of co-operation place a duty upon the Organization and Egypt to consult together and to negotiate regarding the various arrangements needed to effect the transfer from the existing to the new site in an orderly manner and with a minimum of prejudice to the work of the Organization and the interests of Egypt;

(c) their mutual obligations under those legal principles and rules place a duty upon the party which wishes to effect the transfer to give a reasonable period of notice to the other party for the termination of the existing situation regarding the Regional Office at Alexandria, taking due account of all the practical arrangements needed to effect an orderly and equitable transfer of the Office to its new site;

in favour: President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian and Sette-Camara;

against: Judge Morozov;

3. With regard to Question 2,

By eleven votes to two,

Is of the opinion that, in the event of a decision that the Regional Office shall be transferred from Egypt, the legal responsibilities of the World Health Organization and Egypt during the transitional period between the notification of the proposed transfer of the Office and the accomplishment thereof are to fulfil in good faith the mutual obligations which the Court has set out in answering Question 1;

In favour: President Sir Humphrey Waldock; Vice-President Elias; Judges Forster, Gros, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian and Sette-Camara;

Against: Judges Lachs and Morozov.[p 98]

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twentieth day of December, one thousand nine hundred and eighty, in three copies, of which one will be placed in the archives of the Court, and the others transmitted to the Secretary-General of the United Nations and to the Director-General of the World Health Organization, respectively.

(Signed) Humphrey Waldock,
President.

(Signed) Santiago Torres Bernárdez,
Registrar.


Judges Gros, Lachs, Ruda, Mosler, Oda, Ago, El-Erian, and Sette-Camara append separate opinions to the Opinion of the Court.

Judge Morozov appends a dissenting opinion to the Opinion of the Court.

(Initialled) H.W.

(Initialled) S.T.B.


[p 99]

Separate opinion of judge Gros

[Translation]

Having begun my study of the questions put to the Court by an examination of the competence of the World Health Assembly, it seems to me to be useful to outline the considerations, additional to — and sometimes more far-reaching than — the reasoning in the Advisory Opinion, which have led me to agree to its conclusions, in particular those of paragraphs 48 and 49 and the operative clause.

There is nothing hypothetical about the question put to the Court; the documentation supplied by the WHO, and other documents known to the public, show that it involves a request by almost all the member States of the Eastern Mediterranean Regional group that the World Health Assembly should decide to transfer the Alexandria office from Egypt to another country in the region — not that there has ever been any criticism of the performance by that office of its tasks, but solely for a reason of foreign policy which is totally unrelated to health affairs (cf. paras. 31 and 33 of the Opinion).

Such being the factual situation, the legal "cause" for the request for transfer of the Alexandria office is a political decision by a group of member States of the WHO, a counter-measure directed against Egypt which this group of States seek to have the other member States ratify, by deciding, in the World Health Assembly, the transfer of the office from Egypt (cf. the views of the Government of Egypt on this point during the discussion in Geneva on 23 May 1979, in document A32/B/SR/13, p. 6). When these facts are known throughout the WHO as well as to all well-informed members of the public, it seems to me that the Advisory Opinion should put them on record as an initial element for the legal analysis it is requested by the WHO to carry out. Since the real question is whether the legal status of the Alexandria office vis-à-vis the WHO contemplates and permits of a decision by the World Health Assembly to transfer it, and if so on what conditions and according to what modalities, the first part of the problem is to decide whether the WHO can, within the limit of its competence as a specialized agency, confirm political measures which concern only a limited number of States, when at no time has any health objective been invoked.

This fundamental background has been left aside by the Court, and it seems to me that the Advisory Opinion thus given is incomplete. To reply that there are conditions to be observed by the WHO and by Egypt to enable the hypothesis of a transfer to be put into effect "in an orderly manner" (para. 49 of the Advisory Opinion) by-passes the fundamental question of the lack of competence of a specialized agency to decide on [p 100] measures which do not fall within the functions attributed to it, and which by their nature are foreign to the objectives defined in its constitution.

It is of course not enough to assert that since the measures contemplated in the World Health Assembly are political actions, the Court cannot in any way take them into account. This is not a new problem. The Court has already had to study it, and has found that most of the questions of law put to the Court in requests from international organizations for advisory opinions had their origins in a political context. Thus the Court, on any request for advisory opinion, distinguishes the political motives from the object of the request, which must be directed to a legal question (cf. Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, pp. 61 and 64; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, pp. 70-72; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 155 and 157). In this case the Court therefore had to concentrate its examination on the actual object of the request, i.e., the question of the competence of the World Health Assembly to take a decision, by way of political sanction, to transfer the Alexandria office from Egypt, at the request of the other States in the region. Thus it is not a question of the grounds for the withdrawal, but of the content of the decision. The conditions in which the competence of an assembly is exercised are not without relevance for an examination of its power of decision; this is shown by all decisions of courts entrusted with judicial control of decisions taken by the organs of an international institution. Thus examination of the competence of the World Health Assembly is, in my opinion, the initial element of the problem.

The extent of the discussion in 1962 and in 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971) showed that the Court on a number of occasions has not hesitated to examine the lawfulness of measures taken by the General Assembly of the United Nations (cf. dissenting opinion, I.C.J. Reports 1971, pp. 331-332 and 339-341); the rule is the same for any international organization which is entitled to request an advisory opinion and in fact does so.

It has also been suggested in the present case that the Court should not deal with anything other than the object strictly described in the question put; the Advisory Opinion gives a decisive reply on this question by pointing out that the "true" question is the legal status of the relationships between the WHO and the Alexandria Office, and with what has become the classic quotation from the second sentence on page 157 of the 1962 Advisory Opinion:

"It is not to be assumed that the General Assembly would thus seek to fetter or hamper the Court in the discharge of itsjudicial functions; the Court must have full liberty to consider all relevant data available [p 101]to it in forming an opinion on a question posed to it for an advisory opinion."

I would add to this an earlier sentence in the same Advisory Opinion:

"The Court . .. cannot attribute a political character to a request which invites it to undertake an essentialljudicial task, namely, the interpretation of a treaty provision." (I.C.J. Reports 1962. p. 155.)

As in 1962, "the question put to the Court is intertwined with political questions", but that is not a reason for refusing to examine the question whether the Constitution of the WHO, and the international agreements concluded by the Organization, confer competence on the World Health Assembly to decide what is contemplated for the Alexandria Office.

Naturally, the political motivation is not in itself the subject of the Court's examination, and the Court should devote itself solely to the question of the extent of the competence of the World Health Assembly to take a particular decision to transfer the seat of a regional office, defined by the Court as the "conditions and modalities" under which a transfer might be contemplated, in accordance with the applicable rules of law.

Like all "specialized agencies", within the meaning of Article 57 of the United Nations Charter, the WHO has special functions concerning public health (Chap. II, Art. 2, of its Constitution), with the objective of "the attainment by all peoples of the highest possible level of health" (ibid.. Chap. I, Art. 1). The States parties to that Constitution enumerated nine principles in its preamble, and undertook to co-operate "to promote and protect the health of all peoples"; there is not a single one of these nine principles which is not exclusively directed to concern for public health. The structure of the WHO is organized as is usual in specialized agencies: an Assembly holding an ordinary session once a year, an Executive Board, and a Secretariat. Whichever of these organs may be concerned, power is only conferred upon them by the Constitution "to further the objective of the organization" (Art. 18 (m), functions of the Health Assembly). The competence of the Organization was defined, by the States which set it up, as described by them in a text which is an international treaty, and as such is subject to the examination of the Court in the present case. Article 18, which sets out 13 functions of the World Health Assembly, connects them all with the "field of health".

In this context, Organization/member States, what was the sequence of events from the outset between the WHO and Egypt with regard to the Alexandria Office? The Advisory Opinion gives a detailed history of these relationships in paragraphs 11 to 27, and deduces conclusions therefrom in paragraphs 43,48 and 49. I would merely add that the true significance of the actual events becomes apparent if one recalls that from 1946 to 1948 there was as yet no WHO, but an Interim Commission, a sort of general staff without troops, which met in five sessions from 1946 to January 1948, [p 33] and that if the 1946 Constitution in Article 54 decided that "as soon as practicable" it should integrate "the Pan American Sanitary Organization . .. and all other inter-governmental regional health organizations in existence prior to the date of signature of this Constitution", it is difficult to believe that the draftsmen, highly qualified specialists in international health problems and for the most part former delegates to prewar organizations, drafted a text which had no real content. The Pan American Organization is the only one specifically named, but if it had been unique the terms "all other... organizations" would have had no meaning. It has however been contended that the Alexandria Bureau was not, in 19461949, an inter-governmental regional organization, that Article 54 could not apply to it, and that for that reason the WHO could not have "integrated" the Bureau. The documentation supplied to the Court demonstrates that from 1938 to 1946 the international and regionally representative character of the Bureau was maintained. It should however also be added that the argument mentioned above is flawed by an error as to the powers of a court concerning assessment of the common action of the WHO and Egypt to "integrate" the Bureau between 1948 and 1951. The Court must decide on the legal status of the Bureau as it was set up by the parties (the Court has given a good account of this in paragraph 16 of the Opinion; the World Health Assembly resolution of 10 July 1948 is clear, since it uses the terminology of Article 54 of the Constitution, and formally cites it). To say in 1980 that the WHO could not integrate the Bureau in 1949-1951 implies that the common action of the WHO and Egypt during that period, carried out according to Article 54, was unlawful and ought retroactively to be held void. Historians enjoy rewriting history, but the interpretation proposed here would amount first of all to denying what is evident from the facts, i.e., the action of integration which did take place — rightly or wrongly, that is all that critics could say of it — and furthermore to expunging the texts which established the legal status of the relations between the WHO and Egypt, the Bureau being declared to be disqualified ab initio after 30 years of functioning and of express recognition by the WHO as regional office. It would be unheard-of for an international tribunal to be able to "annul" agreements regularly concluded in the view of the parties, and applied between them without controversy, on the grounds of an original non-constitutionality. At no time during the WHO discussions on the possibility of a transfer of the Alexandria Office was there any question of any failure whatever by Egypt to comply with the obligations it undertook vis-à-vis the WHO under the status governed by their common action culminating in the 1951 Agreement. On the contrary, even the proponents of the transfer recognized that the Office was not in question as regards its action as a regional organ.

When the WHO Constitution came into force on 7 April 1948, the WHO wished to incorporate into itself the experienced sanitary organizations which had survived the war period, 1939 to 1945, in order to begin to function otherwise than on paper. Furthermore, there was more to this procedure, described in Article 54 of the Constitution, than a merely [p 103] provisional and ad hoc approach. For lack of staff and finance, the WHO could not hope to replace the innumerable research centres, national or international, official or private, which had long been occupied with health problems throughout the world. The WHO itself describes its role as one of assistance to national health services, of stimulating efforts to eradicate diseases, of ameliorating hygiene, developing research and co-operation, etc.; primarily its role is one of encouragement, information and coordination. The negotiations for the incorporation of the Alexandria Bureau, and those for the association with the Pan American Committee during the very first years of the WHO, were not the only implementations of this kind. The International Agency for Research on Cancer, established in 1965, works in collaboration with the WHO without being a subsidiary organ thereof; its Statute has been published as Appendix 2 to Basic Documents, 1980 edition, published by the WHO. It is the 11 Participating States of the Agency who undertake the financial responsibility, and an independent governing Council, made up of a representative of each Participating State plus the Director-General of the World Health Organization, directs its work. Similarly, a recent effort to combat six serious tropical diseases has been directed towards co-operation between States, with voluntary participation. The role of the organs of the WHO must be understood within this varied body of formulae for encouragement of the most effective efforts, thus reducing to the level of an illusion the theory, which was put forward in the World Health Assembly and before the Court, of the "sovereignty" of that Assembly. In the performance of the weighty task defined in the preamble to its Constitution, the WHO depends on the conjunction of goodwill on all sides; it has concluded numerous agreements with organizations or with States for this purpose. Any international agreement is binding on the parties; the WHO should respect the agreement which it concluded with Egypt for the Alexandria Office.

In the absence of a "super-State", each international organization has only the competence which has been conferred on it by the States which founded it, and its powers are strictly limited to whatever is necessary to perform the functions which its constitutive charter has defined. This is thus a competence d'attribution, i.e., only such competence as States have "attributed" to the organization. It is a misuse of terminology to speak of the sovereignty of the WHO or the sovereignty of the World Health Assembly; States are sovereign in the sense that their powers are not dependent on any other authority, but specialized agencies have no more than a special competence, that which they have received from those who constituted them, their member States, for the purpose of a well-defined task. Anything outside that competence and not calculated to further the performance of the task assigned lies outside the powers of the organiza-tion, and would be an act ultra vires, which must be regarded as without legal effect. In my view, that is the situation shown by the dossier in the present case; the World Health Assembly has been called on by certain member States to take a decision to transfer a regional office without any [p 104]ground of health being asserted, by way of political sanction, and such an action does not fall within its competence.

One last point on this question. It has been contended that, in the absence of an international tribunal competent to pass upon the legality of the acts of an international organization, the only control of the legality of the decisions of the World Health Assembly is through the votes of the Organization's member States on each decision, that once a majority has been obtained the decision is binding on all. This is not a correct description of the powers of the WHO Assembly. The World Health Assembly has not the power to set aside by unilateral decision treaties it has concluded with a member State. In order for this to be the case, the WHO would have to be a super-State, the very notion of which has previously been rejected by the Court. A decision of the WHO which is contrary to international law does not become lawful because a majority of States has voted in favour of it. The WHO and, in particular, its Assembly were created by the member States in order to carry out that which they had decided to do together, and that alone ; member States are not bound to implement an unlawful act if that is what they hold it to be, and the practice of international organizations has shown that recourse is had in such circumstances to a refusal to carry out such act. Consequently nothing is settled by a decision taken by a majority of member States in matters in which a specialized agency oversteps its competence. Numbers cannot cure a lack of constitutional competence. In 1962 the Court stated: "Save as they have entrusted the Organization with the attainment of these common ends, the member States retain their freedom of action." (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 168). The coming together of member States' delegates in the World Health Assembly does not make of that Assembly anything more than what the Constitution specifies: an assembly to consider and express itself with respect to health objectives. That which those State delegates could not do in isolation, i.e., set aside agreements between an organization and a member State, they similarly cannot do when meeting together in an assembly the sole common objectives of which relate to health.

It is of course regrettable that in no organ of the WHO and at no level did a concern for the legality of the step of withdrawal lead to its being properly studied and considered. The dossier transmitted to the Court by the WHO does not meet the obligations laid down in Article 77 of its Constitution, which provides that the Director-General "shall make arrangements for the presentation of the case before the Court, including arrangements for the argument of different views on the question". It has not been possible to learn sufficiently from the documents supplied, unsupported by any commentary, what was done within the Organization during the critical period 1948-1951 nor what precisely was the attitude with respect to the integration of the Alexandria Bureau of the authorities who controlled the WHO's actions. Nevertheless, the then Director-General was perfectly conversant with the travaux preparatoires on Article 54 [p 105] of the WHO Constitution and with the intention to "integrate" regional organizations, and the Head of the WHO Legal Division had followed all the negotiations up to and including the conclusion of the 1951 Agreement. Questions put by the Court or by its Members were met by generalities or evasions (for example, the answers to the questions I put on 28 October and 18 November 1980 concerning the problems that had arisen since January 1978 in relation to a transfer of the WHO's Geneva headquarters). An international administrative service is under an obligation to maintain such conditions as ensure the proper functioning of the organization, which implies a duty to give detailed study and consideration to problems which raise a question of the constitutional and legal propriety of an action of the organs of that organization. At the first meeting of the Working Group "on the question of a transfer of the Regional Office for the Eastern Mediterranean Region" on 29 May 1979, the Secretariat stated that "it would be very important to draw a line between the political role of the members and the neutral role of the secretariat". The entire proceedings before the Court have been marked by this misconception both of the obligations of the member States of a specialized agency and of the role of an international secretariat. The member States are bound by the obligation which they assumed in the Constitution to act within the WHO only with health objectives in view, whilst the Secretariat must carry out the same task of working for health, and there cannot be any question of "neutrality" for it when it is a matter of applying the Constitution and ensuring respect for the international obligations which bind the Organization. The same uncertainty of views is reflected in the text which the Director-General submitted to Committee B at its meeting on 24 May 1979 (doc. A 32/ B/ SR/ 14, p. 3), whereby it would be decided to undertake a study of the effects of the implementation of the transfer "taking necessary steps for its implementation", which seems to regard a decision to remove the Office as a foregone conclusion even before the aforemen-tioned study of its consequences had begun. (Compare the detailed study carried out by the United Nations Food and Agriculture Organization on the problem of its Regional Office for the Near East, submitted before the Conference session in November 1979, which, on 28 November, adopted resolution 20/79 emphasizing the need to find "a solution which would respect the interest of all Member Nations" and requested the Director-General to use "his best and unfettered judgment".)

***

Having thus set forth the reasons why I consider that the Court ought to have gone further than it has in the reasons it gives for its Opinion, it remains for me to indicate very briefly the reasons why I was able to vote for its provisions.

The absorption of the Alexandria Bureau within the WHO through the "common action" of the WHO and Egypt, in conformity with Article 54 of the Constitution, was a valid operation comprising several successive acts [p 106] culminating in the 1951 Agreement, which is applicable to any difficulty that may arise between the parties with regard to the Office's operations or its legal status. To bring the Regional Office's existence in Egypt to an end does not fall within the discretionary power of either party; that which was done by "common action" can only be undone by agreement. If it is not possible to reach such agreement, either party may secure the termination of the 1951 headquarters agreement under Section 37, which confers a right of revision and denunciation. In the first place, the semantic discussions concerning the word "revise" seem to me irrelevant, since in any event Section 37 allows a request for modification of the Agreement and, in the event of a refusal, the denunciation of the agreement. It is carrying formalism a long way to say that only a request for partial revision is possible; it would, in fact, be easy to demand a modification unacceptable to the other party and then to denounce the Agreement. Secondly, the WHO has itself recognized the following chain of events in the history of its negotiation of the headquarters agreement with Egypt: the 1951 Agreement follows the model draft host agreement drawn up by the WHO, which is copied from the WHO's Headquarters Agreement of 1948-1949 with Switzerland, which is based on the ILO's Headquarters Agreement with Switzerland of 11 March 1946. And with respect to this last-named agreement, the Court has seen extracts from the report of the ILO delegation to the 1946 Montreal Conference, in which Mr. Wilfred Jenks, who negotiated the text of the Headquarters Agreement with Switzerland, concluded that in his view "the arrangement is terminated by mutual agreement" (Constitutional Questions, para. 32). The 1951 Agreement is a head-quarters agreement, based on the model host agreement prepared in the WHO, and its provisions were intended to regulate the legal status of the Regional Office established in Egypt. Both the WHO and Egypt have, from the very beginning until the present day, taken the view that the 1951 Agreement between the WHO and the host country was concluded essentially to lay down the reciprocal obligations of the parties arising from the establishment in Egypt of a regional office. The agreement of the parties perfected the various actions which contributed to that establishment with a headquarters agreement regulating the operations of the Office in Egypt and, from a legal point of view, making them possible. A transfer of that Office makes the "revision" of the Agreement necessary because it deprives it of its object and purpose by moving the seat of the office. The agreement of the parties on the Alexandria "establishment" would be broken. Section 37 is a clause that protects the parties so that the provisions of the headquarters agreement may be implemented in an orderly manner; should any particular difficulties arise, "revision" is provided for and, a fortiori, where a party wishes to put an end to all the obligations it has contracted and without taking account of what the other party has provided nor of the services it has rendered.

Examination of the legal relations established between the WHO and Egypt has shown the existence of a series of acts, distinct but connected by their common objective, namely the establishment of a WHO Regional [p 107] Office in Egypt, and which culminated in the conclusion of the headquarters agreement of 25 March 1951, which specified the legal status of the Office, of this regional headquarters, of its staff and, above all, of its activities in Egypt. The WHO devoted much attention between 1949 and 1951 to the conclusion of the 1951 Agreement, which was indispensable to it in order that the Regional Office might function; not only was it the WHO which proposed the text, but it carefully discussed it with all the competent bodies of the Egyptian State. As between the two parties, the series of acts which led to the establishment of the Regional Office constitutes an agreement to bring about a continuation of the health activities of the Alexandria Bureau, integrated by common accord as a Regional Office; this agreement is enshrined in a treaty approved by the two parties in proper form. Implementation in good faith of the undertakings entered into by the WHO with Egypt for the purpose of integrating the existing Alexandria Bureau within the WHO requires that all the provisions of the 1951 Agreement be applied, including Section 37, which makes possible an examination of the problem of the revision and, possibly, the termination of the treaty, whilst respecting the legal obligations assumed by the parties.

The Advisory Opinion did not adopt this view, but did summarize it in its analysis of the opinions which have been advanced, and an endeavour has been made to amalgamate those opinions on a basis which was necessarily that of the lowest common denominator.
That being the case, it is with the benefit of all the foregoing observations that, taking into account the precise legal obligations enshrined in the operative clause of the Opinion, I have been able to subscribe to it. Above all, I maintain that the WHO Assembly lacks competence to terminate the Regional Office's legal status unilaterally for reasons other than the health objectives laid down in the Constitution of the WHO.

(Signed) Andre Gros.

[p108]

Separate opinion of judge Lachs

The Court, having analysed the different views on the subject, turns away from the Agreement between the World Health Organization and Egypt of 25 March 1951 and the applicability of a specific provision (Section 37), or rather part of it, in the event of the WHO or Egypt wishing to have the Regional Office now situated at Alexandria transferred from Egypt.

In my view, this Agreement is, as its title indicates, an "Agreement for the purpose of determining 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" and, as the preamble adds, "in particular with regard to its arrangements in the Eastern Mediterranean Region", which include a Regional Office in Alexandria. It belongs to the family of those instruments which have grown in number in recent years with the birth and development of international organizations, concluded between them and States on whose territories their offices are located. But even a cursory perusal of these many agreements leads to the conclusion that they are a very heterogeneous collection. Whatever analogies may be drawn, therefore, they should not be allowed to obscure the fact that the 1951 Agreement does not enshrine any decision concerning the establishment of the office at Alexandria. It differs from many other instruments which proclaim the establishment and location of the seat as their purpose, e.g., the Agreement between the United States of America and the United Nations concluded "to establish the seat of the United Nations in the City of New York and to regulate questions arising as a result thereof" (Preamble, and cf. Art. 2). More thorough analysis discloses that very many of its provisions are identical with those of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, which Egypt was not to ratify until 1954. Moreover, it is clear from the merely matter-of-fact mention of the Regional Office in the 1951 Agreement that the presence of the Office in Alexandria is regarded as an accomplished fact — which it merely confirms by implication - and its establishment as a matter of the past. It follows that the instrument had no bearing upon that establishment.

This view is reinforced by the historical background, which shows how the establishment of the EMRO at Alexandria originated in 1946 with an Egyptian Government invitation. This was pursued in various organs of [p 109] the WHO, more particularly on the basis of a report by the Regional Committee for the Eastern Mediterranean, and the process was accomplished when the Office eventually began operating on 1 July 1949. In this way, through a series of acts by the WHO and Egypt since 1946, the WHO had inherited an existing office by its integration when it became part of a regional organization in 1949. Given the self-sufficient legal consequences of these acts on the part of competent authorities, there is no need to speak of an inchoate agreement crying out for completion, or of a de facto situation requiring legalization. One may thus regard the 1951 Agreement as a finishing touch from the standpoint of the operational facilities at the disposal of the WHO in Egypt, without viewing it as an indispensable element in the establishment of the Regional Office. However much it oils the wheels, it is not a constitutive act upon which the operation of that Office in Alexandria depends.

It is a corollary of the foregoing that the 1951 Agreement does not have any bearing on the event of terminating the operations of the Alexandria office, whether by transfer of the functions elsewhere or otherwise. As it is thus inapplicable as a whole to such event, its separate parts, including Section 37, are equally inapplicable to it. It must be said, however, that Section 37 represents the Agreement's nearest approach to the problem of termination, though the termination there contemplated in the word "denounced" is not that of the operations of the Regional Office, but - in practice - that of the special provisions for the privileges, immunities and facilities enjoyed by the WHO in Egypt beyond what the 1947 Convention guarantees. One must accordingly suppose that the Court was invited, by the request for advisory opinion, to ascertain whether the transfer of the Regional Office would involve the constructive termination of the 1951 Agreement and, if so, whether that would bring Section 37 into play.

These are reasonable queries, quite irrespective of the question whether the 1951 Agreement governs the conditions of such transfer, for, as I have suggested, the termination of that Agreement would not be an inextricable consequence of the cessation of the operations of the office in Alexandria. Those few of its provisions that would then lack object are heavily out-numbered by those that could still be applied.

It is perhaps due to the much-investigated compromise out of which the formula of Section 37 was born that its purport has given rise to differences of view. Yet its analysis presents no serious difficulties. Its text is admittedly elliptic in the way in which "consultation" about "modifications" develops into "negotiations" in the next sentence. This change of terminology suggests that the second sentence of Section 37, which is part of a whole, contemplates harmonious discussions of ways and means whereas the third provides for a second phase, overshadowed by the risk of failure to reach an understanding, which it is possible to conclude by denunciation on two years' notice.

However, the question put to the Court relates only to the negotiations [p 110] and notice provisions, and it might therefore be inferred that the requirement of consultation is not at issue. But to detach this final sentence from the first is to distort the whole Section, which is intended primarily with a view to consultation about possible modifications of the Agreement, implicitly coupled with the intention of maintaining it in force. It is important, moreover, not to discard the "consultation" sentence, because it specifies the "event" which brings the Section into play. This "event" is the circumstance of one or the other party requesting a revision of the Agreement of 25 March 1951. Even if the term "revision" - as suggested by some — is to be given a very wide meaning (bordering on "review" of the Agreement) it is here amply qualified by the reference to "modifications", for this is a term which can only allude to alterations of particular provisions.

In sum, the last sentence of Section 37 is not severable and may not be treated as embodying "negotiation and notice" provisions independent of a request for revision by way of modification as opposed to a warning of denunciation or an act of constructive termination. This seems an undeniable conclusion resulting from the ordinary meaning of the words, their context and the text as a whole. To impose any other reading would be to challenge grammar, logic and good sense.

I have dwelt on the interpretation of Section 37 because the Advisory Opinion does not, in my view, lay sufficient emphasis on the elementary point that, for any part of Section 37 to be applicable in the "event" of a "wish" to transfer the EMRO from Egypt, it must be possible to equate (a) the expression of such a desire with (b) a request for "revision" by way of "modification" of the Agreement.

In my judgment, as I hope my analysis has made clear, this possibility does not exist, so that, had the first question been left in its original form, my reply thereto would have been negative.
The Court, however, as I said at the beginning, has chosen to turn away from the 1951 Agreement and all its parts. It addresses itself to a wider issue, concerning which I wish to add certain observations.

What has been faced in the present proceedings is the desire of the majority of the States within a regional organization of the WHO to have the seat of that organization's administrative organ transferred to another country, and this is a matter on which there is no further room for nego-tiation, given the reasons advanced in favour of such an action. These are obviously political and reflect a deep cleavage between the host State and others of the region which has been stressed both in the councils of the WHO and in the present proceedings. However, it must be made clear that the Court's opinion was not sought on the merits, legal or otherwise, of the transfer proposal, nor on whether a transfer is possible or desirable; at most, it could only be with its conditions and modalities that the Court had to deal. It was in accordance with this understanding that the Court, having turned away from the 1951 Agreement, defined its task thus: the exam-[p 111]ination of the legal principles and rules applicable in the case of such a transfer. These the Court has sought to formulate on both a wider and a more concrete basis, namely with reference to the relationship between the WHO and Egypt in the past.

It is a truism that an inter-governmental organization, as a new subject of international law created by States, acquires a special status vis-à-vis those States. While it remains under their control, inasmuch as it both represents and is subject to their collective will, its decisions may, and frequently do, conflict with the will of its individual members. Since its headquarters and other offices are usually located not on no-man's land but on State territory, relationships are thereby created which are bound to reflect mutual agreements or, sometimes, disagreements. When determining — eventually in consultation with potential hosts — the conditions under which the headquarters or a regional office may be established in a particular locality, or transferred from one country to another, and in taking the corresponding decisions, the organization is simply implementing the collective will of its members. It is then to be viewed as having to act, not under any tutelage, but only in accordance with the law: where there is an agreement establishing the seat, in compliance with that; if there is none applicable, in compliance with the principles of law which have evolved as the result of this new institution, the international organization, and its relationship with States. A considerable number of agreements now in force, though differing in detail, make it clear that an organization is entitled to decide upon a change of seat (whether headquarters or regional office). Such seat is thus not immobilized, and of this host States should be aware.

In the present case, the World Health Organization is faced with the wish of 19 members of the Eastern Mediterranean regional organization to have the office of that organization transferred to another country. In the event of this recommendation being accepted by the World Health Assembly, the Organization should follow a reasonable path of action. In particular, any agreements concerning the separation of members of the staff must be kept in view. The same applies to all local agreements concerning office accommodation, leases and similar arrangements. The World Health Organization, while retaining its full independence in the adoption of the basic decision, should consult with Egypt on these modalities and technical aspects of such a transfer. On the other hand, the host country should facilitate the implementation of such a decision, since as a member of the Organization it shares in the collective interest of minimizing any disruption of services involved in the transfer once decided. Considering that such a decision would represent the collective will of the Organization, I doubt whether there is an obligation of, or even call for, negotiations with the host State. To maintain the contrary is not in my view consonant with the status of member States within an organization. What is actually [p 112] requisite in principle is a consultation with a view to the orderly termination of activities, so as to enable them to be speedily resumed in the new seat.

It is to be recalled that the request for an advisory opinion of the Court was made while the matter was under consideration in several organs of the WHO. On 12 May 1979 Sub-Committee A of the Mediterranean Region was convened at Geneva to respond to a request made by a number of governments on the subject; the matter was already on the agendas of the WHO Executive Board and of a working group set up by it to carry out a study of all aspects involved. The group's report was submitted to the latest World Health Assembly, and the above-mentioned Sub-Committee A, having reviewed the information provided therein, adopted a resolution to transfer the Regional Office to Amman. It is to be noted that this resolution, submitted to the Assembly, speaks of a transfer "as soon as possible", which obviously connotes its implementation under reasonable conditions.

Thus it is clear that, a regional committee of the WHO having expressed the wish to transfer the seat of its administrative organ, the matter is now to be considered and decided by the World Health Assembly in accordance with the provisions of its Constitution and rules of procedure. Should the Assembly decide upon the transfer, the executive organs of the WHO should proceed to carry it out in an orderly manner, bringing the operations at the Alexandria Office to an end within a reasonable period, which, taking into account the time that has elapsed since the proposal was first made, should to my way of thinking be a matter of months.

It is with this understanding that I have felt able to concur in the Court's reply to the first question. I do not propose to deal with the second, which is redundant and has in my view resulted in the over-emphasis of certain conclusions, more particularly of those contained in paragraph 49 of the Advisory Opinion.

Finally a more general comment, related only indirectly to the case: analysis confirms, as I suggested at an early stage of my considerations, that this new type of relationship between host States and international organizations, dealt with by a new category of treaties known as head-quarters agreements, includes very heterogeneous elements. Scores of such agreements have been concluded, and they represent an important chapter in the catalogue of contemporary treaties; they show striking discrepancies, some well founded on the peculiarities of the specific cases, others evidently due to lack of adequate attention from the lawyer's eye. There can be little doubt that this is not conducive to the proper operation of international organizations and may constitute a source of misunderstanding, misconstruction or even conflict, and not only in cases of proposed transfer. Greater precision and comprehensiveness, closer attention to legal formulations, and the introduction of uniformity wherever desirable, will be in the interest of proper relationships between host States and [p 113] international organizations, the proper functioning of the latter, and the effectiveness of the law.

(Signed) Manfred Lachs.


[p 114]

Separate opinion of judge Ruda

I have voted in favour of the operative part of the Advisory Opinion. However, I would like to explain how, although I reach somewhat similar conclusions to those of the Court, I do so by way of a different reasoning.

The first question submitted to the Court by the request for advisory opinion is framed by reference to the negotiation and notice provisions of Section 37 of the 1951 Agreement between the WHO and Egypt, and relates to the eventuality of a transfer from Egypt of the WHO Regional Office for the Eastern Mediterranean. Now, this Section 37 begins with the words "The present Agreement may be revised", refers in the second sentence to "the modifications to be made in its provisions" and ends with the phrase "the present Agreement may be denounced by either party giving two years' notice". Therefore, in order to ascertain whether the negotiation and notice provisions of Section 37 are applicable to the eventuality just mentioned, we have to find out whether there is any stipulation in the Agreement determining the site of the Regional Office, or laying down the requirements for its eventual removal, that could be the object of negotiations and, subsequently, lead to modification or revision, or to denunciation in case of failure, as provided for in the Section. It seems to me a logical premise that you cannot "revise" a treaty on a point that is not in it, except perhaps by way of adding a new clause or a new subject, which is not the case here.

Let us begin with the preamble, which is always a very useful part of an instrument for defining its general purpose. This, in the present instance, seems to be clear, i.e., to determine the privileges, immunities and facilities to be granted by Egypt to the WHO, 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 ... regulating other related matters".

The text of the Agreement confirms this general purpose. Most of the articles are devoted to the concession of privileges, immunities and facilities, the exception being the articles dealing with what the preamble calls "other related matters": Article X, on the "Security of the Government of Egypt", and the final provisions in Articles XI and XII. But I can find no clause in the text, including the preamble, agreeing on Alexandria as the site of the Eastern Mediterranean Regional Office, or laying down the requirements for a transfer from that site.

It is true that there are several allusions to the Office in the 1951 Agreement. In the definitions given in Article I, "the Regional Office in [p 115] Alexandria" is mentioned by name as one of the "principal" or "subsidiary offices". Section 6 refers to "the premises of the Organization in Egypt"; Section 25 provides for additional diplomatic privileges and immunities for "the Regional Director in Egypt and his Deputy"; Section 30 contains an undertaking to the WHO for the provision of water, electricity, etc., to "the premises placed at its disposal" and police supervision "for the protection of the seat of the Organization".

I agree with the contention that the 1951 Agreement was mainly devoted to regulating the conditions under which the Office would function in Alexandria, and, even more, that no such agreement would have been signed if the Office had not been located in Alexandria, but this does not mean that Alexandria was chosen and agreed upon in the 1951 Agreement as the site of the Regional Office.

According to my interpretation, the 1951 Agreement presupposes the establishment of the Regional Office in Alexandria. The Office is not created or established in this instrument, nor is the choice of site fixed therein. This interpretation is in accordance with the facts as 1 see them, which I now propose to describe.

At its Third Session, the Interim Commission of the WHO, in 1947, decided to instruct the Executive Secretary

"to get in touch with the authorities of the Pan Arab Sanitary Organization and to submit a report on the activities and status of that organization" (WHO, Official Records, No. 5, p. 142).

Later, in September 1947, at its Fourth Session, the Interim Commission decided to appoint a subcommittee

"to study, in consultation with appropriate authorities, the relationship to the WHO of the Sanitary Bureau at Alexandria, in the light of Chapter XI of the WHO Constitution and the International Sanitary Convention of 1938" (WHO, Official Records, No. 6, p. 220).

In the course of the discussions, the Interim Commission considered a Report by the Egyptian Minister of Health on the Pan Arab Regional Health Bureau (ibid., pp. 173-177) and the delegation of France pointed out correctly that this Bureau "did not really exist" and that "the negotiations regarding the integration of the Alexandria Epidemiological Intelligence Bureau with the WHO should take place with the Egyptian Government" (ibid., pp. 28 f.).

At the beginning of 1948, the Interim Commission decided, after considering the replies received from Governments and finding that there was not sufficient data available, to defer the question of the determination of the geographical regions to the Health Assembly (WHO, Official Records, No. 7, p. 232). During its meetings, the Commission discussed a report by the Executive Secretary, Part 38 of which, entitled "Location of Head [p 116] quarters and Regional Bureaux of the WHO" mentioned a reply received from the Government of Egypt stating that

"the competent authorities have declared that they are most anxious to see a Regional Bureau established at Alexandria. The bureau could deal with all questions coming within the scope of the WHO for the entire Middle East" (ibid, p. 135). Greece favoured "the maintenance, as heretofore, of a regional organization of the WHO in Alexandria" (ibid).

In the supplementary Report of the Interim Commission to the First World Assembly Dr. Stampar, Chairman of the Interim Commission, in May 1948 recommended in a very comprehensive report, under the item "Pre-existing Regional Organizations", that the Regional Health Centre for the Near and Middle East be located in Alexandria (WHO, Official Records, No. 12, pp. 65-75).

At the First World Health Assembly, the Committee on Headquarters and Regional Organizations appointed a working group, which recommended that "a regional organization be established immediately ... with headquarters at Alexandria" (WHO, Official Records, No. 13, p. 267). A draft resolution was submitted by Egypt, but not adopted, which, inter alia, took into consideration

"the fact that the Egyptian Government has offered to place at the disposal of the organization a large and suitable building, formerly occupied by the Sanitary Maritime and Quarantine Board and presently occupied by the Regional Sanitary Bureau of Alexandria"

and recommended that the Regional Bureau be integrated with the WHO as a regional organization (A/HQ/3,5 July 1948). Finally, on 10 July 1948, the Assembly, on the basis of a second report of the Committee (ibid., p. 80), adopted resolution WHA1.72 on the delineation of geographical regions. This read as follows:

"The First World Health Assembly
Resolved on the delineation of the following as geographical areas:
(1) Eastern Mediterranean Area, (2) Western Pacific Area, (3) SouthEast Asia Area, (4) European Area, (5) African Area, (6) American Area.
1. Eastern Mediterranean Area, comprising the following countries: Egypt . . . Cyprus . . .
Resolved that the Executive Board should be instructed: (1) to establish regional organizations in accordance with the delineation of geographical areas decided upon and as soon as the consent of the majority of Members situated in such areas has been obtained; (2) as regards the Eastern Mediterranean Area, to integrate the Alexandria Regional Bureau with WHO as soon as possible and (3) as regards Europe . . ." (WHO, Handbook of Resolutions, Vol. I, p. 315). [p 117]

The First Session of the Eastern Mediterranean Regional Committee was held in Cairo, in February 1949. The Director-General of WHO presented a statement (RC/EM/7) on the "Role of the Sanitary Bureau at Alexandria as a Regional Bureau for Epidemiological Notifications and information under the International Sanitary Conventions" which concluded that integration with the WHO should not impair the functions carried out efficiently by the Sanitary Bureau for many years and should facilitate the co-ordination of these functions with the WHO headquarters and the Singapore Epidemiological Information Station.


The Agenda of the Meeting included as item 5 "Location of the Regional Office" (RC/EM/6), as item 9 "Epidemiological Intelligence Service" (RC/EM/7), as item 11 "Integration of the Sanitary Bureau at Alexandria" (RC/EM/3) and as item 12 "Draft Agreement of the Host Government of the Regional Office". Document RC/EM/6, on the location of the Regional Office, is a short report by the WHO Secretariat citing Article XI (2) of the Agreement between the United Nations and the WHO, which states that any regional office of the WHO shall

"so far as practicable be closely associated with such regional or branch offices as the United Nations may establish"

and pointing out the existence of FAO and ILO offices already located in Cairo, and the intention of the United Nations to open an information centre in that city. The report stressed the point that any action taken by the Regional Committee on the location of the Office should be provisional, "until clearance is obtained" in negotiations with the United Nations at the meeting of the Administrative Committee on Co-ordination.

At its Second Session, the Regional Committee dealt with an item on the location of the Regional Office. After a declaration by the Director-General, the contents of which are not given in the minute, the delegate of Egypt made a statement (RC/EM/9)

"to the effect that the Government of Egypt is taking steps to offer the site and building at Alexandria to the WHO for a period of nine years";

and the minute goes on:

"A motion was then made and adopted to recommend to the Director-General and the Executive Board, subject to consultation with the United Nations, the selection of Alexandria as the site of the Regional Office. A resolution on this point will be prepared."[p 118]

At the next meeting, on the same item, the delegate of Egypt read a draft resolution which was adopted and which I shall describe in detail, together with other resolutions adopted at the same session of the Regional Committee. Two meetings later, item 9, "Epidemiological Intelligence Service" and item 11, "Integration of the Sanitary Bureau at Alexandria", were discussed together and a draft resolution was also adopted on integration, which I shall deal with later. It should be noted that in the course of the debate the Director-General pointed out that provision "for taking over the Bureau had been made" in the 1949 Budget, and that the delegate of Egypt announced that his Government

"was pleased to transfer the functions and all related files and records of the Alexandria Bureau to the World Health Organization"

and also that the

"transfer would be made on the date on which the Organization notifies the Government of Egypt of the beginning of operations in the Regional Office of the Eastern Mediterranean Region".

The Committee then approved a motion to begin the operations of the Regional Office in July, because, according to the Egyptian delegate and the Director-General, such a decision "would be in accord with the draft budget for six months". There was discussed as a separate item, at the same meeting, the "Draft Agreement with the Host Government", the Director-General stating that a draft agreement had been produced and handed to the Egyptian Government, whose legal department was studying it. With respect to the venue for the second session of the Committee, the delegate of Egypt proposed Alexandria "in order that the first [sic] meeting should be held at the Regional Bureau"; this motion was supported by the Director-General who said that "it was desirable to have the early meetings at Regional Headquarters".

The Report of the First Meeting of the Regional Committee to the Third Session of the Executive Board (WHO, Official Records, No. 17, pp. 45 f.) included a "Summary of resolutions and decisions" and the texts of two resolutions and two statements by the delegate of Egypt. In the summary of resolutions the Committee, under item No. 5, dealt with the "Location of the Regional Office" and mentioned a resolution and a statement which were given as appendices. Appendix 4, "Resolution on Location of the Regional Office", referred in its introduction to (1) the historical role of Alexandria as a centre of epidemiological services, (2) to Article XI of the Agreement between the United Nations and the WHO, (3) to the importance of establishing the Regional Office in the proximity of Cairo because of the location there of several United Nations offices and (4) to [p 119]

"the desirability of the excellent site and buildings under favourable conditions generously offered by the Government of Egypt",

and in conclusion resolved

"to recommend to the Director-General and the Executive Board, subject to consultation with the United Nations, the selection of Alexandria as the site of the Regional Office".

Appendix 3 included a statement by the Egyptian delegate in which he announced that

"at its meeting of 6 February 1949 the Council of Ministers has agreed, subject to approval of the Parliament, to lease to the World Health Organization, for the use of the Regional Office for the Eastern Mediterranean Area, the site of land and the building thereon which are at present occupied by the Quarantine Administration and the Alexandria Health Bureau, for a period of nine years at a nominal annual rent of P.T. 10",

an offer for which the Committee expressed its thanks.

The Report also referred, under item No. 9, to the "Integration of the Alexandria Sanitary Bureau", mentioning a resolution reproduced as Appendix 2, in which the Committee, having regard to (1) the provisions of Chapter XI of the WHO Constitution, (2) the resolution of the World Health Assembly on the delineation of regions and (3) the services and experience of the Sanitary Bureau at Alexandria, resolved

"to recommend to the Executive Board that in establishing the Regional Organization and the Regional Office for the Eastern Mediterranean the functions of the Alexandria Sanitary Bureau be integrated with those of the Regional Organization of the World Health Organization".

Appendix 5 reproduced a statement by the Egyptian delegate in which he recalled that the Government of Egypt had assumed the functions and carried on the services of the Alexandria Sanitary Bureau in accordance with a declaration made by his Government at the International Sanitary Conference of 1938. The statement added that:

"In consideration of the resolution on integration of the Alexandria Sanitary Bureau with the World Health Organization, the Government of Egypt is pleased to transfer these functions and all related files and records to the World Health Organization.

This transfer will be made as of the date on which the World Health Organization notifies the Government of Egypt of the commencement of operations in the Regional Office for the Eastern Mediterranean Area."[p 120]

This statement was received with thanks by the Committee.

The Summary of Resolutions and Decisions had other points of interest. Under item No. 8, the Committee "requested the Director-General and the Executive Board to establish the regional office and commence work on 1 July 1949", under item No. 10, the Committee "noted that the Director-General would negotiate an agreement with the Government of Egypt", under item No. 12, the Committee "nominated, for consideration of the Executive Board, Dr. Ali Tewfik Shousha Pasha, for the position of Regional Director", and under item No. 13, the Committee "noted the draft budget of the Regional Office" for 1949.

The Third Session of the Executive Board of WHO adopted in March 1949, after having considered the report of the Committee, resolution EB3.R30, which reads as follows:

"The Executive Board
(1) Conditionally approves the selection of Alexandria as the site of the Regional Office for the Eastern Mediterranean Area, this action being subject to consultation with the United Nations;
(2) Requests the Director-General to thank the Government of Egypt for its generous action in placing the site and buildings at Alexandria at the disposal 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 1 July 1949;
(4) Approves the resolution of the Regional Committee that 'the functions of the Alexandria Sanitary Bureau be integrated within those of the Regional Organization of the World Health Organization';
(5) Authorizes the Director-General to express appreciation to the Government of Egypt for the transfer of functions, files and records of the Alexandria Sanitary Bureau to the Organization upon commencement of operations in the Regional Office" (WHO, Handbook of Resolutions, Vol. I, pp. 331 f.).

At the same session (ibid., p. 332) the Executive Board appointed Sir Ali Tewfik Shousha Pasha as Regional Director for the Eastern Mediterranean, for five years, beginning 1 July 1949. According to Article 52 of the WHO Constitution. "The head of the regional office shall be the Regional Director . . .".

Resolution EB3.R30 appears to me to have been the instrument that decided on the location of the Regional Office, subject to certain conditions. There had been an offer from the Egyptian Government placing the site and buildings at Alexandria of the pre-existing Regional Sanitary Bureau at the disposal of the new organization for nine years; this offer, according to the statement made by the Egyptian delegate at the First [p 121] Meeting of the Regional Committee for the Eastern Mediterranean, was subject to the approval of the Egyptian Parliament. The offer was accepted and the Executive Board decided to select Alexandria as the site of the Regional Office, and approved its establishment subject to consultations with the United Nations, its operations to commence in the near future. This was one of the actions taken in resolution EB3.R30, which dealt with the location of the Office.

The other action taken was the integration of the Alexandria Sanitary Bureau within the Regional Office. It seems to me that the terminology of the resolution is clear: what was integrated were "the functions" of the Bureau. In other words, the previous functions of the Bureau were to be performed in the future by the Regional Office, and for this purpose the Government of Egypt transferred the Bureau's files and records. Although Article 54 of the WHO Constitution is not mentioned in resolution EB3.R30, this seems to have been done in pursuance thereof, even though Article 54 refers to "inter-governmental regional organizations" and the Sanitary Bureau was an office of the Egyptian Government.

I draw a distinction between these two actions, i.e., establishing the location of the Regional Office and the integration of the Alexandria Bureau with the Regional Office, because they have a different purpose. The functions performed by the Alexandria Bureau and its files and records could have been transferred, "integrated", within the Regional Office while at the same time the seat was nevertheless established in another location than Alexandria.

The choice of the site of the Regional Office was subject to consultations with the United Nations, which took place in May 1949, without objection from the Administrative Committee on Co-ordination of the Economic and Social Council (E/1340, pp. 13 f.).

The approval of the Egyptian Parliament was given in Law No. 66 of 29 May 1949, which approved the lease to the WHO of the land in Alexandria occupied by the Quarantine Administration (i.e., the Alexandria Bureau) which was in the public domain, for a nominal rent, to serve as the site of the Regional Office (Journal officiel du Gouvernement egyptien, 6e annee, 16 juin 1949, n° 81, p. 1).

The conditions laid down by Egypt and the WHO were thus fulfilled at the end of May 1949.

Here, it is worth while to compare resolution EB3.R30 with the decisions taken in connection with the establishment of other WHO regional organizations and sites of regional offices. There are various types of resolution.

A comparison of the decisions taken by the Executive Board regarding the sites of various regional offices shows that in two cases, Manila and Copenhagen, approval was made subject to the conclusion of a host agreement, which was not the case with respect to Alexandria or the other offices.[p 122]

My conclusions from these facts are the following:

(1) there was an offer from the Egyptian Government to the WHO of a site and building at Alexandria for the Eastern Mediterranean Regional Office, subject to the approval of the Egyptian Parliament;
(2) this offer was accepted by the WHO, subject to consultations with the United Nations;
(3) both conditions were fulfilled in May 1949;
(4) the Egyptian Government integrated the functions of the Alexandria Sanitary Bureau with the Eastern Mediterranean Regional Organization and transferred its files and records to the latter;
(5) the Office commenced operations in July 1949, with a budget, a staff and a Director; and
(6) the establishment of the seat of the Regional Office in Alexandria was not made subject to the conclusion of a host agreement.

Therefore, the Regional Office had already been factually and juridically established in its site in Alexandria since 1949, two years before the signature of the 1951 Agreement, and its settlement was not linked to the conclusion of the host agreement. Consequently, the facts seem to point to an interpretation of the terms of that treaty to the effect that its text presupposed that the Regional Office was already established in Alexandria.

I find nothing in the text of the 1951 Agreement, in its context, or in its object and purpose to show that it dealt with the establishment of the seat of the Regional Office or its removal. On the contrary, the circumstances previous to its conclusion disclose a prior agreement on this question of the site of the Office. I interpret the 1951 Agreement as a treaty which deals with privileges, immunities and facilities and not with the seat or removal of the Regional Office.

I do not attach legal importance to the description by some of the 1951 Agreement as a "host" or "headquarters" agreement despite the fact that the title under which it was registered FN1 with the United Nations was: "Agreement between the World Health Organization and the Government of Egypt for the purposes of determining 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, signed at Cairo, on 25 March 1951." What is important is the content of the treaty and what rights and obligations were assumed by virtue of that instrument. I cannot deduce from the mere labelling of the 1951 Agreement as a "host" or "headquarters" agreement that the location of the office in Alexandria forms part of its provisions. It is true, as I have said before, that most of the [p 123] provisions of the 1951 Agreement are based on the maintenance of the Office in Egypt, but this does not mean that the parties agreed in 1951 that the Office was to be located in Alexandria; that had already been agreed in 1949. It has been contended that the 1951 Agreement integrates and displaces any prior understanding and the proof of this assertion is said to lie in a statement made by Mr. Zarb, a member of the Secretariat, when he stated in the Fourth World Health Assembly that:

"although the Organization thus enjoyed the most courteous treatment, it would be highly desirable for such treatment to be accorded de jure and not only de facto" (WHO, Official Records, No. 35, p. 315).

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FN1 According to Article 8, paragraph 1 (b), of the Regulations for Registration of Treaties and International Agreements, approved by General Assembly resolution 97 (I) of 14 December 1946, the Register shall comprise, inter alia, a record of: "The title given to the instrument by the parties."
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I interpret this statement, where Mr. Zarb refers to "treatment", to refer to the privilege of temporary exemption from customs duties already enjoyed by the Office, on the basis of the unilateral decision adopted by Egypt and communicated by the Ministry of Public Health to the Director on 23 June 1949. On the other hand, I cannot see, explicitly or implicitly, in any of the provisions of the 1951 Agreement an intention to integrate or displace any prior understanding.

To my mind, the Regional Office was established at Alexandria by an agreement between Egypt and the WHO, which was reached through a series of successive acts which progressively expressed the will of both parties to locate the Office in Alexandria and which culminated in resolution EB3.R30, the approval of the Egyptian Parliament signified in Law No. 66 and the non-opposition of the United Nations to the choice of Alexandria.

It is well known that international law does not impose any given form for the conclusion of an agreement, provided that there is sufficient evidence of the intention of the parties to create rights and obligations, i.e., to produce legal effects. There is no legal distinction between formal and informal agreements, because the validity of a treaty does not depend on the adoption of any form; it therefore is up to the parties to choose such form as they think fit for assuming international obligations.

There was, of course, no formal agreement, in 1949, selecting Alexandria as the site of the Regional Office, but the common will of the WHO and Egypt to such effect was very clearly expressed in successive acts of one and the other party, which together constitute an international binding engagement. I see no reason to consider these engagements as not producing contractual legal effects; effects which were not subject to the conclusion of any other agreement.

The problem that the Court faces in Question 1 is simply whether the 1951 Agreement does or does not provide for the location or removal of the Alexandria Office, because Section 37 laid down a procedure for the revision and potential denunciation of the "present Agreement". Since I
[p 124] find nothing in the 1951 Agreement that refers to these subjects, which had already been dealt with in a previous agreement in 1949,I am forced to conclude that Section 37 is not applicable "in the event that either party to the Agreement wishes to have the Regional Office transferred from the territory of Egypt".

But I think that a simple negative answer to Question 1 could lead to misleading legal conclusions, because, as the Court says, a rule of international law "does not operate in a vacuum, it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part". Moreover, I see the role of the Court in advisory proceedings as giving the organ or organization that has requested an opinion the maximum possible legal assistance within the margin of the true legal issues before the Court. For these reasons, I believe that it is necessary, after having found that Question 1 should be answered in the negative, to go into other rules provided for in general international law and the agreements in force between the WHO and Egypt, which determine the obligations incumbent upon them should either of them desire a transfer of the Regional Office.

As I have stated several times before, I am of the opinion that there was, in 1949, an informal agreement, with full legal effects, on the selection of Alexandria as the site of the Regional Office. This agreement, although it has no outright denunciation clause, is, under the law of treaties, the kind of agreement which is subject to denunciation, because there is no obligation on the part of the Organization to remain in a given place, and, reciprocally, the host State is not obliged to keep an international organization or any of its branches on its territory without its consent.

Therefore, there is no rule that could impede the WHO and Egypt, if either of them so wish, to bring about the removal of the Regional Office from Alexandria through unilateral action.
But this transfer could not be carried out without taking into account the legitimate interests of the other side. For this reason, the WHO and Egypt, as the Court has stated in paragraph 49 and in the operative part of the Advisory Opinion, should consult each other in good faith and negotiate the conditions and modalities of the transfer, bearing in mind that a reasonable period of time should be allowed for the removal, because the orderly termination of the operations of the Regional Office should be the paramount consideration to be taken into account.

(Signed) J. M. Ruda.

[p 125]

Separate opinion of judge Mosler

[Translation]

I. I subscribe to the operative provisions of the Opinion, as well as to the considerations upon which it is based. In particular, I am in agreement with the Court's definition in paragraph 35 of the question raised by the request, for the purpose of interpreting its legal scope, and I share the view there expressed that a precise determination of the questions submitted to the Court results from the requirements of its judicial character.

The Court arrives at the key passages of its reasoning (paras. 43-49) and at the operative provisions of the Opinion on the basis of an outline of the various opinions that have been expressed concerning the legal nature of the relationship between the World Health Organization (WHO) and Egypt with respect to the Regional Office at Alexandria which, though starting from different interpretations, all finally arrive at the same conclusions. The Court simply states these arguments, without giving preference to any of them (paras. 38-42). It rightly concludes that these partly divergent interpretations all lead to the conclusion that the contractual regime created between 1948 and 1951 still constitutes the foundation of the legal relationship between Egypt and the WHO (para. 43).

The method of reasoning followed by the Court is, in my view, justified in the present case by the duty incumbent upon it as a judicial institution to define the legal position as precisely as possible in the operative provisions of the Opinion as well as in its essential reasoning, even if some of that reasoning contains alternatives each of which, even if incompatible with others, forms part of a logical concatenation that leads to common conclusions.

On the other hand, the vote of a Member of the Court in favour of the Opinion inevitably leaves open the question of what his own view may be of all the problems raised by the request. I consequently propose to explain which of the alternatives described in the Opinion is, in my view, the one that should be adopted.

II. In paragraphs 11-32 of the Opinion, the Court has examined in detail the factual and legal context in which the request was submitted to it. On this basis, and adopting the definition of the problem to be decided to be found in paragraph 35,I can summarize my position as follows:

1. The 1951 Agreement was concluded "for the purpose of determining 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". Its provisions are based on numerous host agreements concluded between international organizations and States for [p 126]
the purpose of regulating the legal status of the organization and of its premises, services and staff in the State in question.

For example, the Agreement between Switzerland and the WHO, which to a large extent served as the model for the Agreement between the WHO and Egypt, had as its object "to regulate the legal status of the World Health Organization" (UNTS, Vol. 26, p. 333); the matters dealt with in it are, mutatis mutandis, the same as those in the 1951 Agreement with Egypt.

In so far as the object and purpose of other agreements are the same as those of the Agreement between the WHO and Egypt, they may be taken into consideration in interpreting the latter. This method of interpreting a treaty by reference to another treaty, although it is sometimes contested, has rightly been admitted in the decisions of the Court. The closest case to the one with which we are at present concerned and in which the Court followed this method is that of the Advisory Opinion concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (IMCO) (I.C.J. Reports I960, p. 150 at pp. 169 f.).

From a general comparison of host agreements it will be seen that some of them expressly mention the establishment of an office or service in a precisely defined town or place. Most of them are silent on this point, or make only a passing mention of where the headquarters has already been established, or is to be established through a process falling outside the written provisions of the agreement. On the other hand, the permanent establishment of an office or service is the raison d'être of a host agreement, which regulates in detail the legal status of such office or service. The establishment, the operation and the maintenance of the office or service in fact constitute the very essence of a host agreement. Apart from a few provisions concerning the legal position of the organization itself with respect to and within the State in question, the agreement would be pointless unless the office or service was in existence before its conclusion or was established pursuant to it. There is, in consequence, a close link between the establishment or the continued existence of the office or service on the territory of the State and the agreement which regulates its legal status with respect to and within the legal order of that State. This relationship is sometimes, as in the present case, made plain in the preamble and in certain provisions of the agreement which, by mentioning the office or service, presuppose its existence. But such a connection also exists in cases where the agreement is merely silent with respect to the town or place where the office or service is, or is to be, situated.

These considerations apply to the 1951 Agreement which was concluded with a view to the integration of the Alexandria Bureau with the WHO as its Regional Office for the Eastern Mediterranean.

It emerges from the historical background to the Agreement that at the time when the Government of Egypt took the necessary steps to offer the site of the building to the WHO, and when the Bureau's entry into service within the structure of the WHO was being contemplated, the project had [p 127] passed the preliminary negotiation stage and had reached the stage of the negotiation of a definite text. The measures which culminated in the placing of the Bureau at the disposal of the WHO ran parallel with the preparation and negotiation of the Agreement (see paras. 17-23 of the Opinion). It was of course expected on both sides that the negotiations would succeed; Egypt had not made any reservation that would have enabled it, if necessary, to resume control of the office. It does not seem that it was envisaged on either side that this expectation might be disappointed. But it cannot be concluded from the silence of the parties that the arrangement which resulted in the integration of the Bureau was an independent and definitive agreement. My interpretation of the events in question and of the probable intentions of the parties leads me to the conclusion that the arrangement whereby the Bureau's entry into operation as the Regional Office of the WHO was brought about was a stage in more extensive negotiations for the establishment of the Bureau as a regional institution of the WHO, with all the factual and legal consequences that entailed. The establishment of the seat of the regional organization in Egypt consequently cannot be dissociated from the agreement regulating its legal status. I infer therefrom that the commencement of operations of the Regional Office in Egypt effected on 1 July 1949 by the bilateral arrangement between Egypt and the WHO was not, from a legal point of view, a definitive act consummated on that date and unrelated to the 1951 Agreement but that, on the contrary, that Agreement also contemplated the siting of the Regional Office in Alexandria. I consequently conclude that the negotiations between the WHO and the Egyptian Government must be regarded as a continuing process leading first of all to the transfer of the Bureau to the WHO as from 1 July 1949 and concluding with the entry into force of the Agreement of 25 March 1951 (cf. also para. 39 of the Opinion).

It follows that every provision of the Agreement capable of concerning the seat is applicable to any transfer of the Office from Egypt.

2. It is uncontested that, from the point of view of an international organization's constitution, the closure or transfer of its principal or regional headquarters is to be effected pursuant to decisions taken by the competent organ of such organization; but the implementation of such a decision is subject to conditions resulting from the legal relationship between the organization and the State concerned.

It follows from the considerations set forth above that the transfer of the Office would deprive the 1951 Agreement of its principal object. Since such transfer would be tantamount to the extinction of the Agreement, it could be effected either by common action of the parties, cancelling that earlier common action which was expressed in the Agreement, or by a unilateral denunciation by the WHO provided the Agreement expressly or impliedly permits such denunciation.

(a) Section 37 reads as follows:

''Section 37. The present Agreement may be revised at the request of either party. In this event the two parties shall consult each other [p 128]concerning the modifications to be made in its provisions. If the negotiations do not result in an understanding within one year, the present Agreement may be denounced by either party giving two years' notice."

This formula is identical with that in numerous host agreements concluded by the WHO and other international organizations. It is also to be found in the model agreement between the WHO and a "host government". As already mentioned, the 1951 Agreement is based on the Headquarters Agreement between the WHO and Switzerland, Article 29 of which is entitled "Modification of the Agreement". The wording of that article is identical with that of Section 37, but the three sentences which the section contains are set out separately in Article 29 in three numbered paragraphs (UNTS, Vol. 26, p. 333, at p. 347). The draft agreement dated 16 October 1946 contains the same text. It does not seem to have been discussed between the parties.

The clause originates in the Agreement concluded between Switzerland and the International Labour Organisation concerning the latter's legal status in Switzerland, in which, in Article 30, the same text is to be found as in Article 29 of the Agreement with the WHO, set out in the same order of paragraphs (UNTS, Vol. 15, p. 380). As is well known, this wording was the result of a compromise between those negotiating on behalf of Switzerland and of the ILO respectively.

As was abundantly argued in the written and oral statements, this compromise and its antecedents lend themselves to divergent interpretations of the common intention of the parties as expressed in the text which eventually became Article 30 of the Agreement. If the term "revision" be understood in accordance with the ordinary meaning to be given to it (cf. Art. 31, para. 1, of the Vienna Convention on the Law of Treaties), it suggests the idea of introducing partial changes in a situation, agreement or status, rather than the abolition or complete and total cessation of the situation, treaty or status in question. Nothing is to be found in the context which might justify an interpretation departing from the ordinary meaning. I doubt therefore whether Section 37 is applicable in the present case, since I do not think that to cease to apply the Agreement can be construed as a revision. I admit that the word revision may in certain circumstances have the meaning of a radical and total change in a treaty; but the second sentence in Section 37, which speaks of "modifications", prevents my interpreting the revision referred to in the first sentence of that same Section in this broader sense.

(b) If what seems to me the more plausible interpretation is followed, that of not applying Section 37 to denunciation without a prior attempt at revision, one must nevertheless not lose sight of the application of the principle of general international law that, even in the absence of a denunciation clause, the parties to an international agreement may bring its operation to an end if it appears from an interpretation of the provisions [p 129] of the agreement as a whole, and from its inherent meaning, taking into account the legitimate interest of the parties, that its revocation must be possible.

This argument finds reinforcement in Article 56 of the Vienna Convention on the Law of Treaties, and the considerations which have led the International Law Commission to insert the same text in a corresponding article of its draft on treaties between States and international organizations. These two articles state a rule permitting the denunciation of any international agreement which contains no provision on this point, provided that:

(i) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(ii) a right of denunciation or withdrawal may be implied by the nature of the treaty.

The negotiations on the provision that was to become Article 30 of the Agreement between Switzerland and the ILO show that it was Switzerland's intention to reserve the possibility of denunciation. There is nothing to suggest that the compromise wording, which envisages denunciation only after an attempt at revision, implies that Switzerland renounced any possible exercise of denunciation (even though it is not mentioned in the Agreement), should this be required for an orderly winding-up of the ILO Headquarters in Switzerland. The Agreement between the WHO and Egypt lends itself to an analogous interpretation. It cannot be presumed that the WHO intended to commit itself for ever neither to transfer nor to close its Office. Its Constitution did not allow it to commit itself without any possibility of changing the seat of a regional organization (cf. Art. 44 of the Constitution).

I consequently conclude that by virtue of a right deriving from the provisions of the Agreement as a whole and not from its inherent meaning, either party may put an end to its operation under conditions which now fall to be determined.

3. If my view be adopted, that the Agreement may be denounced by virtue of a rule which is implied in it, the consequences which result therefrom with respect to the modalities for its termination are as follows:
(a) Since an implied rule by its very nature contains no provision concerning the modalities of its application, the parties must get in touch in order to enter into consultations and negotiations with respect to the time-limits and measures which may be appropriate for enabling the transfer to be effected in an orderly manner. The parties' obligation to reach an understanding with respect to the consequences of denunciation results from the contractual link between them, which requires them to work out in common a solution to the problems arising from the application of the Agreement where no express rules are laid down to govern the matter. The Court has analyzed the parties' responsibilities in this connection in paragraph 48 of the Opinion and has specified them in paragraph 1 of the operative provisions. [p 130]

(b) Although I support the operative provisions and what is stated in paragraph 49,1 would like to add one observation in the event of the attempt to arrive at a solution by common agreement being unsuccessful. In that case, the text of Section 37 may furnish a solution. To be sure, it is clear from the wording of that provision that the denunciation which is there envisaged is limited to cases where prior negotiations undertaken after a request for revision have failed. But the contracting parties nevertheless envisaged the eventuality of bringing the Agreement to an end as the result of its denunciation. Furthermore, they agreed, again in another context but nevertheless within the framework of the Agreement, on a notice-period of two years, which they considered appropriate for bringing the Agreement to an end. This interval between notice of denunciation and the date on which it takes effect was considered proper and reasonable for taking the neces-sary steps to wind things up. The common intention of the parties as thus expressed gives an indication of how to carry out that same operation even where it is the consequence of a right of denunciation deriving from a different legal basis, namely, the implied rule which I have just stated. On this hypothesis, the notice-period of two years provided for in Section 37 can be applied by analogy.

I thus reach the conclusion that if the parties do not manage jointly to solve the problems caused by a transfer, either of them has, the right to give notice of denunciation of the Agreement, to take effect two years later.

(Signed) Hermann Mosler.

[p131]

Separate opinion of judge Oda

I concur with the Advisory Opinion of the Court in considering that the transfer of the Regional Office from Alexandria to the new site, if such transfer is inevitable, should be effected in an orderly manner with the minimum of prejudice to the work of the Organization and the interest of Egypt. However, differing as I do from the Advisory Opinion on some of the legal issues which it touches upon, I feel bound to make known my own individual views, as follows.

*

1. In my view the 1951 Agreement between Egypt and the WHO does not govern the transfer of the Regional Office for the Eastern Mediterranean from Alexandria, nor can the negotiation and notice provisions of its Section 37 apply to any such transfer. In this connection it is necessary to examine the relation between the 1951 WHO/Egypt Agreement, on the one hand, and, on the other, the establishment and location of the Regional Office in Alexandria.

The Director of the Legal Division of the WHO stated during the oral proceedings:

"The provision which is the subject of the request for advisory opinion merely repeated an analogous provision in the Agreement between Switzerland and WHO of 1948, which Agreement also repeated an identical provision in the Agreement between the ILO and the Swiss Confederation in 1946. Hence the text in question was not the subject of thorough discussion when it was adopted, since it reproduced a clause that was already well known." (Sitting of 23 October 1980.)

**

2. In fact, Section 37 of the 1951 WHO/Egypt Agreement is practically identical with Article 29 of the 1948 WHO/Swiss Agreement. In this respect it is pertinent to start by examining the establishment in 1948 of the headquarters of the WHO in Geneva and the conclusion of the 1948 WHO/Swiss Agreement.

The International Health Conference called by the United Nations in New York in July 1946 concluded with the signature of the Constitution of the WHO. In Chapter X thereof, Article 43 stated:[p 132]

"The location of the headquarters of the Organization shall be determined by the Health Assembly after consultation with the United Nations."

The Interim Commission, established pursuant to the Arrangement concluded at the International Health Conference, was charged, inter alia, with making "studies regarding location of Headquarters of the Organization" (2 (b) (ii)). In the deliberations of the Interim Commission, which met five times between July 1946 and February 1949, the establishment and location of the headquarters of the Organization and the Agreement with Switzerland concerning the legal status of the Organization were always dealt with separately, or rather discussions on the Agreement with Switzerland preceded determination of the establishment and location of the headquarters of the Organization.
3. The Executive Secretary of the Interim Commission met with a committee of representatives of the Swiss Confederation and Genevese authorities on 18 and 19 September 1946, and discussed a draft agreement indicating the privileges, immunities, guarantees and facilities of all kinds which the WHO might enjoy if it established itself in Switzerland (WHO, Official Records, No. 4, p. 72). Accordingly a proposed agreement between the Swiss Federal Council and the WHO concerning the legal status of the WHO in Switzerland, together with a proposed arrangement for the execution of the Agreement, were drafted: the Agreement was circulated as a WHO document on 16 October 1946 (ibid,, p. 81). The Executive Secretary expressed on that occasion the desire that these two texts should mutatis mutandis be applied provisionally to the services which were to be administered in Geneva by the Interim Commission until the WHO had chosen a place for its permanent seat. The Swiss Federal Council expressed assent to this proposal at its meeting of 25 October 1946. The letter from the Federal Political Department to the Executive Secretary dated 28 October 1946 clearly indicated that this agreement was proposed for the purpose of determining the legal status of the WHO in Switzerland in the event of its deciding to establish its seat in Geneva (ibid., p. 88). This was nearly two years before Geneva was actually chosen as the site of the WHO headquarters.

4. At its third session (March/April 1947) the Interim Commission, on the basis of the recommendations of the Temporary Panel of Legal Consultants on Privileges and Immunities (i.e., those to be granted to the WHO and its Interim Commission by the Swiss Government), adopted a resolution noting with satisfaction the conclusion of the draft agreement of 19 September 1946 and considered that the draft agreement, the draft arrangement of the same date and the letter of 28 October 1946, together with the resolution itself, would constitute a legal agreement between the Swiss Federal Government and the Interim Commission binding upon both parties during the life of the Interim Commission (WHO, Offical Records, No. 5, pp. 23 and 139). The Executive Secretary informed the Swiss Federal Council of the resolution in a letter the date of which is not [p 133] clear but which was at any rate before August 1947 (WHO, Official Records, No. 5, p. 140; No. 6, p. 66). At the end of this letter the Executive Secretary stated:

"It is perhaps superfluous for me to add that it will be necessary for the World Health Assembly to give its approval to this projet d'accord should it desire to have the provisions of the projet d'accord applied to the World Health Organization." (WHO, Official Records, No. 5, p. 141.)

In the final report (1948) of the Interim Commission it was recommended that the World Health Assembly resolve to approve, without modification, the draft Agreement of 19 September 1946, as well as the accompanying draft arrangement for its implementation (WHO, Official Records, No. 10, p. 121).

5. At the First World Health Assembly, held in Geneva in June/July 1948, the Secretary explained the proposed agreement and arrangement to the Legal Committee (WHO, Official Records, No. 13, p. 278), which then unanimously decided to recommend that the Health Assembly accept them (ibid., p. 279). The World Health Assembly itself, on 17 July 1948, adopted without any objection at its fourteenth plenary meeting the report of the Legal Committee which contained this recommendation, approving the agreement and arrangement with only a minor modification of the latter (ibid., p. 97). This was the final action taken by the World Health Assembly as far as the WHO/Swiss agreement is concerned. The Agreement and the Arrangement for its execution were approved by the Swiss Federal Council on 21 August 1948 and came into force on that date, effective retroactively from 17 July 1948 (UNTS, Vol. 26, p. 331). The former carries the title: "Agreement concerning the legal status of the WHO in Switzerland."

*

6. Meanwhile, the establishment and location of the headquarters of the WHO was being discussed quite separately from the draft Agreement with the Swiss Government. The Interim Commission, at its second session (Nov. 1946), set up an internal committee of five members for the study of the future seat of the WHO (WHO, Official Records, No. 4, p. 15). On 6 March 1947, pursuant to the wish of this five-member internal committee the Secretariat sent a circular letter to all governments invited to the International Health Conference in New York, asking them for their offers or views regarding the establishment of offices of the WHO (WHO, Official Records, No. 5, p. 65). At the third session (March/April 1947) of the Interim Commission, the Committee on Headquarters was engaged in making some surveys on the possibilities of the location of headquarters (ibid., p. 136) and in a report of the Executive Secretary submitted in August 1947 to the Interim Commission for its fourth session (Aug./Sep. [p 134] 1947) several possibilities regarding the headquarters were mentioned on the basis of replies addressed to the Interim Commission in response to its circular letter (WHO, Official Records, No. 6, p. 43).

At the fifth session (Jan./Feb. 1948) of the Interim Commission, the Committee on Headquarters prepared a detailed analysis of New York, Geneva, Paris and the United Kingdom for the possible location of the headquarters from various aspects (WHO, Official Records, No. 7, p. 217). However, it was agreed on 5 February 1948 that a decision on the location should be left to the World Health Assembly to be held in a few months' time (ibid., p. 56).

7. At the Committee on Headquarters and Regional Organization in the First World Health Assembly (June/July 1948), the Chairman gave a short summary of the question and made special reference to the opinions expressed so far by various countries with regard to the different possible locations for the headquarters. There was general agreement that, although Geneva was not itself a very large medical centre, it was so centrally situated in Europe as to be easily accessible to the various medical centres (WHO, Official Records, No. 13, p. 330).

The Committee finally came to the unanimous conclusion that Geneva should be selected as the permanent headquarters of the World Health Organization. The Committee prepared a resolution for the Health Assembly to adopt, and the report of the Committee containing the draft reso-lution was taken up at the tenth plenary meeting on 2 July 1948. The resolution read as follows:

"The Health Assembly resolves that Geneva be made the permanent headquarters of the World Health Organization." (WHA1.96; ibid., pp. 77 and 330.)

As there were no objections, the President announced that Geneva had been chosen as the permanent seat of the Organization with the reservation that the Assembly had to consult the Secretary-General of the United Nations (ibid, p. 77).

8. After this decision the delegate of Switzerland made the following statement:

"In the name of the Swiss delegation I wish to express my thanks for the great honour shown to our country by the choice of Geneva as the permanent site of the World Health Organization. If, after consultation with the United Nations, your decision should be confirmed — as we sincerely hope will be the case - you may rest assured that the Federal Council, in concert with the authorities of Geneva, will consider and study in the widest and most liberal sense all the steps to be taken for the installation and work of the World Health Organization in this town." (Ibid.)[p 135]

The Economic and Social Council, in its resolution of 23 July 1948:
"Considered] that the establishment of the headquarters of the World Health Organization at Geneva [was] in the best interests of the United Nations and of the World Health Organization." (ECOSOC, res. 168 (VII).)

On 24 July 1948 at the sixteenth plenary meeting of the First World Health Assembly, this resolution of the Economic and Social Council was introduced and the President declared that the resolution as to the permanent headquarters in Geneva should stand (WHO, Official Records, No. 13, p. 103).

*

9. It seems to me that, from the analysis of the process under which the 1948 Swiss/WHO Agreement was prepared on the one hand, and from the fact, on the other hand, that the choice of Geneva as the site of the headquarters was effected through a separate process, it is difficult to conclude that the establishment and location of the headquarters of the WHO in Geneva was governed by the Swiss/WHO Agreement.

**

10. As stated by the Director of the Legal Division of the WHO (para. 1 above), Article 29 of the 1948 WHO/Swiss Agreement also repeated Article 30 of the 1946 ILO/Swiss Agreement. Not only that, these two Agreements are practically identical except that the ILO/Swiss Agreement has one extra provision concerning the transitory regime which might be necessitated by the fact that the International Labour Office had already existed for many years.

The report of the Temporary Panel of Legal Consultants dated 26 April 1947, submitted to the third session of the Interim Commission (which I referred to in para. 4 above), read as follows:

"An Agreement couched in almost identical terms, and serving as model for the draft Agreement negotiated by the Executive Secretary of the Interim Commission and the Swiss Government, had been concluded between this same Government and the International Labour Organisation. This ILO Agreement had met with no objection whatever on the part of the Members of that Organisation." (WHO, Official Records, No. 5, p. 140.)

11. A group of the ILO which met in London from 21 January to 15 February 1946 prepared a Report of the Conference Delegation on Constitutional Questions (International Labour Conference, 29th Session, Report II (1)). According to this report [p 136]

"The Delegation considers that wherever the seat of the Office may be located there should be an arrangement between the International Labour Organisation and the Government or international authority having jurisdiction over the seat which ensures that the Organisation will enjoy there the full independence necessary for the effective discharge of its international responsibilities until such time as the arrangement is terminated by mutual agreement." (P. 25.)

The talks in early March between Switzerland and the ILO to negotiate an agreement concerning the legal status of the ILO in Switzerland after the dissolution of the League of Nations, in which Professor Guggenheim and Dr. Jenks participated in their respective roles, are known to the Court. The formal procès-verbal which was signed by the negotiators is so simple as to exclude any background to the ILO/Swiss Agreement (UNTS, Vol. 15, p. 377). However, according to a communication to the Court by the Legal Adviser of the ILO, there exists an informal procès-verbal de negociations which is based on notes taken at the time by the ILO negotiators, but which has never been seen or approved by the other party.

12. We have been told that, on the topic eventually dealt with by Article 30 - which was copied as Article 29 of the WHO/Swiss Agreement - the Swiss draft contained, according to this informal document, the following article :

"[Translation] The present Arrangement shall remain in force so long as the seat of the International Labour Organisation is maintained on the territory of Switzerland. It may be denounced on either side, effective at the end of a year, by six months' previous notice."

It was certainly not the intention of Switzerland that this agreement should provide for the removal of the office, effective at the end of a year, by six months' previous notice. On the contrary, the fate of the seat of the ILO was not within the scope of this agreement. The meaning of the Swiss delegate was that this agreement providing for the legal status of the Organization in Switzerland would remain in force as long as the seat of the ILO was maintained in Switzerland, but could however be denounced by the procedure suggested.

According to the informal record supplied by the ILO:

"[Translation] Mr. Guggenheim emphasized that he would wish to see a denunciation clause included in the Agreement. Mr. Jenks proposed that a form of words be worked out to permit of revision of the agreement between the two parties. If no such form of words could be found, ultimately a provision should be included for each party to have the right to denounce on sufficiently long notice. That proposal was accepted."

It was thus that the provision now existing as Article 30 was adopted.[p 137]

13. The ILO did not, apparently, challenge the basic principle as mentioned in the first part of the Swiss suggestion - it only asserted in connection with the second part of the Swiss suggestion that the agreement should be subject to some process of revision before any denunciation. It is quite clear that neither side was engaged in discussing the location or the transfer of the headquarters of the ILO while negotiating the proposed agreement.

The draft which was agreed through these negotiations was submitted to the Governing Body of the International Labour Office at its ninety-eighth session in May 1946. The covering note contained the following passage:

"It was clearly understood... that the provisions of the Agreement and Arrangement defining the legal status of the ILO in Switzerland after the dissolution of the League of Nations do not prejudice in any way the question of the seat of the Organization." (ILO, Minutes of the 98th Session of the Governing Body, p. 188.)

The Agreement was signed on 11 March 1946 and came into force on 27 May 1946.

14. The WHO has established six Regional Offices, including the one in Alexandria. The Regional Office in Washington is very special because of its historical background, which it is unnecessary to go into here. The five other Regional Offices are in India, Egypt, the Philippines, the People's Republic of the Congo and Denmark. Those in India and Egypt started their operations on 1 January and 1 July 1949, respectively, and the other three began operating in the early 1950s. The agreements concerning these five offices (which are similar apart from some minor differences) were approved by the World Health Assembly at its second, fourth, fifth, sixth and ninth sessions (WHA2.81, WHA4.59, WHA5.41, WHA6.39 and WHA9.37).

Since the Regional Office in India started its functions six months ahead of the Regional Office in Alexandria, and the WHO/India Agreement was approved by an earlier session of the World Health Assembly and came into force earlier than the WHO/Egypt Agreement, it is pertinent to make some analysis of the process under which the Regional Office in India was brought into operation, and to compare it with the case of the Regional Office in Egypt.

15. The Constitution of the WHO devotes its Chapter XI, containing Articles 44-54, to Regional Arrangements. Article 44 provides for the establishment of any regional organization, which, according to Article 46, consists of a regional committee and a regional office. Article 54 stipulates in effect that, where any inter-governmental health organization existed prior to the date of signature of the Constitution, it should in due course be [p 138] integrated with the WHO. It seems not to be correct to assume that Article 44, read with Article 46, and Article 54 are mutually exclusive or independent of each other in their respective applications. Article 54 was simply supplementary to Articles 44 and 46 for the establishment of a regional office.

In preparing this chapter at the International Health Conference (June/ July 1946), the relationship of the Pan American Sanitary Bureau to the WHO carried great weight. This is the reason why Article 54 was drafted. But, the delegates of some countries, such as India, Liberia, Poland, South Africa, the three Soviet Republics and Yugoslavia, urged that all existing regional health agencies should be transformed as quickly as possible into regional committees subordinated to the World Health Organization. The Egyptian delegate intervened in the debate to call attention to the recently created Health Bureau of the Pan Arab League and to request that it be accorded the same consideration as the Pan American Sanitary Bureau (WHO, Official Records, No. 2, p. 23).

**

16. The Interim Commission had as its task, among others, to carry out studies regarding the definition of geographical areas with a view to the eventual establishment of regional organizations as contemplated in Chapter XI of the Constitution, due consideration being given to the views of the governments concerned. (Arrangement concluded by the governments present at the International Health Conference, 2 (b) (iii).)
It was only at the third session of the Interim Commission (March/April 1947) that matters concerning regional arrangements began to be given due consideration. Some days prior to this session, the Executive Secretary despatched to all member States a circular dated 6 March 1947, which has been mentioned previously, regarding not only the establishment of the headquarters of the WHO, but also the establishment of its regional offices. In addition, at its third session the Interim Commission instructed the Executive Secretary to undertake further studies on regional areas for consideration at its fourth session and for recommendation to the World Health Assembly (WHO, Official Records, No. 5, p. 143). Pursuant to this decision, a circular was despatched on 4 June 1947 with reference to Chapter X, particularly Article 44, of the Constitution of the WHO (WHO, Official Records, No. 6, p. 196).

17. By the time of the fourth session (Aug./Sep. 1947) of the Interim Commission a number of replies had been addressed by governments in response to the circulars of 6 March 1947 and 4 June 1947, respectively. In answer to the former circular, India announced that it would soon indicate its views (ibid., p. 43). Neither India nor Egypt had replied to the latter circular by that time.[p139]

Prior to the fifth session (Jan./Feb. 1948) further replies had been received from various countries, including Egypt and India. They are not reproduced in their original form and their dates are not known, but it seems that these replies were made in response to the general circular letter of 6 March 1947 concerning the offices of the WHO and that of 4 June 1947 concerning regional arrangements, without making any separate reference to the respective circulars. The replies from Egypt and India are quoted, as follows:

"Egypt:
The competent authorities have declared that they are most anxious to see a regional bureau established at Alexandria. This bureau could deal with all questions coming within the scope of the WHO for the entire Middle East." (WHO, Official Records, No. 7, p. 135.)

"India:
(3) In the event of India's proposal regarding the location of headquarters in India not being accepted by the World Health Assembly, the Government of India would press for a regional bureau to be located in India. This bureau might conveniently cover the following territories: Iran, Afghanistan, Pakistan, India, Burma, Ceylon, Siam and possibly Malaya and Singapore.
(4) The Government of India gives an assurance that adequate accommodation and other facilities, as well as necessary amenities and privileges, on similar terms to those provided by other Governments for the United Nations or its Specialized Agencies, will be provided for the headquarters office or the regional bureau, as the case may be." (Ibid.)

In addition, Denmark and Iran indicated their interest in providing the site of regional offices, and there were some replies from other countries which indicated that Alexandria might be the site of one regional office (ibid).

18. At the fifth session (Jan./Feb. 1948) of the Interim Commission a resolution concerning the determination of geographical regions was adopted. Finding that there was not yet sufficient data available for the delimitation of the geographical regions to be administered by the regional offices, referred to in Article 44 of the Constitution of the World Health Organization, the Interim Commission resolved to refer the question to the World Health Assembly with a recommendation that it be assigned as soon as possible for study to a Committee of the Assembly, whose task it would be to make the necessary recommendations, taking due note of the viewpoints expressed by the various governments (WHO, Official Records, No. 7, p. 232). [p 140]

*

19. Meanwhile, a special question concerning the Alexandria office had been taken up by the Interim Commission. At its third session (March/ April 1947) Dr. Shousha Pasha, Under-Secretary of State, Ministry of Public Health of Egypt, who was serving as Vice-President of the Commission, stated on 11 April 1947 that the Pan Arab Bureau was considering the possibility of becoming a Regional Bureau of the WHO for the Mediterranean area. He desired that the Executive Secretary be instructed to make an exploratory approach with regard to that Bureau. (WHO, Official Records, No. 5, p. 26.) In response to his statement, the Interim Commission instructed the Executive Secretary to get in touch with the authorities of the Pan Arab Sanitary Organization and to submit a report on the activities and the status of the Organization (ibid., pp. 26 and 142). Hence enquiry was made by the Executive Secretary on 2 May 1947.

On 26 July 1947 the Minister for Public Health of Egypt sent to the Interim Commission a detailed memorandum on "The Pan Arab Regional Health Bureau: its Origin and History" (WHO, Official Records, No. 6, p. 173). At the fourth session (Aug./Sep. 1947), the Committee on Relations proposed that a small negotiating subcommittee be appointed to survey the matter and report to the fifth session (ibid., p. 29). No report of this subcommittee is printed in the Offical Records of the WHO. Apparently there was no discussion on this subject at the fifth session of the Interim Commission.

20. The Interim Commission, at its informal preparatory meeting in Geneva in June 1948, included under the agenda item "Pre-existing Regional Organizations" a report on the Sanitary Bureau at Alexandria by Dr. A. Stampar, Chairman of the Commission. This is a very comprehensive report and its Section 4 was entitled "Arguments in favour of Alexandria as a Regional Health Centre for the Near and Middle East"; Section 6 (conclusion) thereof read as follows:

"If we have realized how useful the establishment of a regional organization would be and if we remember what a peculiar situation Alexandria has from the point of view of well-established tradition in precisely this kind of international sanitary work, by reason of its geographical situation and the present progress of public health in Egypt, we are bound to admit that the conditions which predestinate Alexandria to be the centre of the future regional health organization for the Near and Middle East are literally unique." (WHO, Official Records, No. 12, p. 65.) [p141]

**

21. At the First World Health Assembly (June/July 1948), in the Committee on Headquarters and Regional Organization, a subcommittee, appointed to study whether it was advisable actually to establish regional organizations, recommended the establishment of at least three working parties for three different regions, namely, South-East Asia, the Middle East and the Far East (WHO, Official Records, No. 13, p. 264). The Committee decided to add two working parties for the regions of Europe and Africa (ibid., pp. 265-266).

For South-East Asia it had been unanimously agreed in the working party that a regional organization should be set up with India as its headquarters and it was also unanimously agreed that, in view of the urgent needs of that part of the world, the setting-up of a regional organization for the South East Asia area should be considered as priority number one. Concerning the Middle East, the Near East and parts of North-East Africa, the working group unanimously agreed to recommend that a regional organization be established immediately to include Egypt and other countries, with headquarters at Alexandria, and it recommended also that the establishment of this regional organization be given the highest priority (ibid., p. 267).

22. The Committee on Headquarters and Regional Organization recommended in its second report as delimitation of geographical areas: (i) Eastern Mediterranean Area; (ii) Western Pacific Area; (iii) South-East Asia Area; (iv) European Area ; (v) African Area; (vi) American Area (ibid., p. 330).

The Committee discussed at considerable length the necessity for establishing regional organizations in some or all of these areas during the year 1949. On the basis of a report of the Committee the First World Health Assembly, at its eleventh plenary meeting on 10 July 1948, adopted a resolution: this resolution WHA1.72 reads as follows:

" 1. In accordance with Article 44 of the WHO Constitution, the Health Assembly
Resolves to define the geographical areas as indicated in the second report of the Committee on Headquarters and Regional Organization.
2. The Health Assembly
Resolves that the Executive Board be instructed (1) to establish regional organizations in the areas indicated in the second report of the Committee on Headquarters and Regional Organization as soon as the consent of a majority of Members situated within such area is obtained; where the consent of a majority of the Members has not yet been obtained, a regional organization in the respective area should be established as soon as the necessary consent becomes available; (2) as regards the Eastern Mediterranean Area, to integrate the regional organization which already exists in that area, viz. the Alexandria [p 142] Regional Bureau, with the World Health Organization as soon as possible, through common action, in accordance with Article 54 of the WHO Constitution; (3) as regards Europe,..." (WHO, Official Records, No. 13, pp. 81 and 331).

23. The sites of the regional offices in India and at Alexandria were mentioned in the report of the respective working groups, which were adopted at committee level, but the World Health Assembly resolution did not specify these names expressly, simply stating that the regional orga-nizations should be established as soon as the consent of a majority of members situated within such areas was obtained. However, in the case of the Eastern Mediterranean Area specifically, integration of the existing regional organization with the WHO was mentioned. It seems quite clear that this integration was supplementary to the establishment of the Regional Office in Alexandria in accordance with Article 44, read with Article 46.

Meanwhile, although the name of India was not mentioned in the resolution itself, Jawaharlal Nehru, Prime Minister of India, sent the following telegram, which was read by the President of the World Health Assembly at the fourteenth plenary meeting on 17 July 1948:

"On behalf of the Government of India, I wish to thank you and World Health Assembly for unanimously deciding to locate one of the regional bureaux in India. The Government of India will gladly extend every help in promoting the work of the bureau." (Ibid., p. 96.)

24. Thus, until the time of the First World Health Assembly the process of establishing the Regional Offices in India and Egypt progressed at the same pace, though in the case of Egypt special mention was made, since not only was the Regional Office to be established in accordance with Article 44, read with Article 46, but integration under Article 54 of the Con-stitution was also made necessary.

*

25. At its first session (July 1948) the Executive Board noted the letter addressed to the President of the Assembly by the Chief Delegates of Burma, Ceylon, India and Siam, stating that their countries had agreed to join the Regional Organization for South-East Asia with headquarters in India, and also the letter from the delegate of India proposing that this regional organization should be located in the city of Mysore (WHO, Official Records, No. 14, p. 12). The Regional Committee for South-East Asia was convened for its first session in New Delhi in October 1948. At its second session (Oct./Nov. 1948) the Executive Board adopted the following resolution: [p 143]

"The Executive Board
In order to carry out the instructions of the first World Health Assembly
(1) Approves the establishment of the South-East Asia Regional Office on or about 1 January 1949,
(2) Having considered the recommendation of the Regional Committee .. . Approves provisionally the selection of New Delhi as the site of the Regional Office for South-East Asia, this action being subject to consultation with the United Nations by the Director-General..." (EB2.R29; ibid., p. 27.)

The consultation referred to in the resolution had in fact already taken place in November 1948 in the Administrative Committee on Co-ordination (E/1076, Report of the Administrative Committee on Co-ordination to the ECOSOC, 3 December 1948; ECOSOC, Official Records, 4th year, 8th Sess., Suppl. 5, p. 9). In fact, the shift of the future site of the Regional Office in India from Mysore to New Delhi seems to have been made as a result of this consultation on the ground that the United Nations, the ILO and the UNESCO offices already existed in New Delhi. The Economic and Social Council at its 241st meeting on 17 February 1949 took note of the report (ECOSOC, Official Records, 4th year, 8th Sess., p. 148).

26. In the case of the office in Egypt, the Regional Committee for the Eastern Mediterranean was held in Cairo in February 1949. At its first session the location of the Regional Office, date of commencement of operations in the Regional Office, and integration of the Sanitary Bureau were placed, together with other items, on the agenda. On the question of the location of the Regional Office, the following draft resolution, which was read by the delegate of Egypt, was adopted:
"The Regional Committee Having considered

(1) the historical role of Alexandria as a centre for epidemiological services to countries in the Eastern Mediterranean Area; (2) the policy laid down in Article XI (2) of the agreement between the United Nations and the World Health Organization which states that: 'Any regional or branch offices which the World Health Organization may establish shall, so far as practicable, be closely associated with such regional or branch offices as the United Nations may establish'; (3) the importance of establishing the Regional Office in the proximity of Cairo in which are located or expected to be located offices of the United Nations and specialized agencies as follows: FAO, ICAO, ILO, Unesco and UN Information Centre; (4) the desirability of the excellent site and buildings under favourable conditions generously offered by the Government of Egypt.[p 144]

Therefore resolves to recommend to the Director-General and the Executive Board, subject to consultation with the United Nations, the selection of Alexandria as the site of the Regional Office." (WHO, Official Records, No. 17, p. 46.)

27. With regard to the integration of the Alexandria Sanitary Bureau, the delegate of Egypt stated that in January a Committee of the Arab States had voted in favour of the integration of this Bureau into the WHO. (Regional Committee for Eastern Mediterranean, Summary Minutes, 4th Sess., 8 February 1949.) The Director-General read a draft resolution, the adoption of which was then proposed by the delegate of Egypt, and the Director-General confirmed that all functions would be carried on as in the past. The resolution, which was adopted, read as follows:

"The Regional Committee,
Having regard to: (1) the relevant provisions of Chapter XI of the Constitution of the World Health Organization; and (2) the resolution of the World Health Assembly of 10 July 1948; and (3) the long experience and the services rendered by the Sanitary Bureau at Alexandria in the field of health,
Resolves to recommend to the Executive Board that in establishing the Regional Organization and the Regional Office for the Eastern Mediterranean the functions of the Alexandria Sanitary Bureau be integrated within those of the Regional Organization of the World Health Organization." (WHO, Official Records, No. 17, p. 46.)

The delegate of Egypt presented a statement, which read:

"In accordance with the declaration made by the Delegate of Egypt to the International Sanitary Conference of 1938 at Paris, the Government of Egypt assumed the functions and has carried on the services of the Alexandria Sanitary Bureau. In consideration of the resolution on integration of the Alexandria Sanitary Bureau with the World Health Organization, the Government of Egypt is pleased to transfer these functions and all related files and records to the World Health Organization. This transfer will be made as of the date on which the World Health Organization notifies the Government of Egypt of the commencement of operations in the Regional Office for the Eastern Mediterranean Area." (Ibid., p. 47.)

The Committee then expressed gratitude to the delegate of Egypt for the transfer of the functions, files and records of the Alexandria Sanitary Bureau to the Organization upon commencement of operations in the Regional Office.

28. On the agenda item "the date of commencement of work in the region", the Committee requested the Director-General and the Executive [p 145]Board to establish the Regional Office and commence work on 1 July 1949.

29. The Executive Board, at its third session (Feb./March 1949) held soon after the Regional Committee for the Eastern Mediterranean, adopted the following resolution:

"The Executive Board

(1) Conditionally approves the selection of Alexandria as the site of the Regional Office for the Eastern Mediterranean Area, this action being subject to consultation with the United Nations;

(2) Requests the Director-General to thank the Government of Egypt for its generous action in placing the site and buildings at Alexandria at the disposal 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 1 July 1949;

(4) Approves the resolution of the Regional Committee that 'the functions of the Alexandria Sanitary Bureau be integrated within those of the Regional Organization of the World Health Organization';

(5) Authorizes the Director-General to express appreciation to the Government of Egypt for the transfer of functions, files and records of the Alexandria Sanitary Bureau to the Organization upon commencement of operations in the Regional Office ..." (EB3.R30; WHO, Official Records, No. 17, p. 16.)

The consultation took place in May 1949 in the Administrative Committee on Co-ordination (E/1340, Report of the Administrative Committee on Co-ordination to the ECOSOC, 25 May 1949; ECOSOC, Official Records, 4th year, 9th Sess., Suppl. 15, p. 11). The Economic and Social Council at its 331 st meeting on 9 August 1949 took note of the report of the Co-ordination Committee (E/1470) which contained the report of the Administrative Committee on Co-ordination (ECOSOC, Official Records, 4th year, 9th Sess., p. 730).

30. Thus, pursuant to the resolution of the First World Health Assembly, the establishment of the regional office and the selection of its site was approved at the second session (Oct./Nov. 1948) of the Executive Board in the case of India and at the third session (Feb./March 1949) of the Executive Board in the case of Egypt, with an indication, on each occasion, of the date of commencement of operations.

**

31. With regard to the agreement of the WHO with the host governments of its regional offices, the negotiations with India seemed to progress more smoothly than those with Egypt. At its second session (Oct./Nov.[p 146] 1948), when the regional office in India was approved, the Executive Board resolved that the Director-General be invited to continue negotiations with the Indian Government in order to obtain an agreement extending privileges and immunities to the Regional Organization of the WHO in SouthEast Asia. Until such agreement came into force, the Indian Government was invited, as a provisional measure, to extend to the regional organization established on its territory the privileges and immunities contained in the General Convention on the Privileges and Immunities of the Specialized Agencies, including Annex VII (EB2.R49; WHO, Official Records, No. 14, p. 26).

In accordance with the resolution of the second session of the Executive Board, the Director-General of the WHO had initiated negotiations with the Government of India with regard to the draft agreement extending privileges and immunities in India to the Regional Organization for SouthEast Asia, and by letter of 20 May 1949 the Regional Director was informed of the approval by the Indian Government of the draft agreement (WHO, Official Records, No. 21, p. 375). The Second World Health Assembly (June/July 1949) approved the draft and authorized the Director-General or his representative to sign the instrument (WHA2.81; ibid., p. 49). The WHO/India Agreement was signed at New Delhi on 9 November 1949 but had come into force earlier on 22 September 1949, upon an exchange of notes (UNTS, Vol. 67, p. 43).

*

32. In contrast, the process of preparation of the WHO/Egypt Agreement proved somewhat complicated. It is not possible to get a clear picture of the early stages of the negotiations between the WHO and Egypt from any of the documents. It seems, however, most probable that negotiations started early in 1949. According to one source, a draft agreement had been prepared by the WHO prior to 8 February 1949 and handed to the Egyptian Government, where it was under study in their legal department. (Regional Committee for Eastern Mediterranean, Summary Minutes, 4th Sess., 8 February 1949.) According to other sources, Dr. Shousha Pasha, Under-Secretary of State for Health, provided the Ministry of Foreign Affairs in April 1949 with a copy of the draft agreement which the WHO intended to conclude with Egypt. There is no proof, but I assume that this draft agreement is the one which has often been referred to as being on the lines of the model host agreement supplied by the WHO.

33. The Regional Committee for the Eastern Mediterranean noted at its first session (Feb. 1949) that the Director-General would negotiate an agreement with the Government of Egypt as an agreement with the host government of the Regional Office (WHO, Official Records, No. 17, p. 45).

Since the negotiations were still proceeding, the Second World Health Assembly (June/July 1949) resolved that the Director-General be invited to continue negotiations with the Government of Egypt in order to obtain [p 147] an agreement extending privileges and immunities to the Regional Organization of the WHO in the Eastern Mediterranean Area (WHA2.82; WHO, Official Records, No. 21, p. 49). As in the case of India, the World Health Assembly invited the Government of Egypt, as a provisional measure, to extend to the Regional Organization all privileges and immunities contained in the General Convention on the Privileges and Immunities of the Specialized Agencies.

At the fifth session (Jan./Feb. 1950) the Executive Board asked the Director-General to continue the negotiations and requested the Government of Egypt to expedite them (WHO, Official Records, No. 25, P.15).

34. At the Third World Health Assembly (May 1950) the Secretary reminded the Working Party on Legal Matters, in connection with the agenda item "Agreement with the Government of Egypt", that the WHO had concluded agreements with certain States that were acting as "hosts", either to the Organization or to its regional offices, and referred to agreements such as those which had been concluded with Switzerland and India. He said that the draft agreement with Egypt had become necessary since the Regional Office for the Eastern Mediterranean Area had been established and was functioning in Egypt (WHO, Official Records, No. 28, p. 451).

The Third World Health Assembly approved the WHO/Egypt Agreement, and requested the Director-General or his representative to sign the said Agreement after approval by the Government of Egypt in accordance with the respective constitutional procedures (WHA3.83; ibid., pp. 52,451 and 492). However, there still remained some issues to be solved by the WHO and Egypt on matters which are quite irrelevant to this case.

35. Finally agreement was reached and the Executive Board at its seventh session (Jan./Feb. 1951) requested the Director-General to submit a report on these negotiations and the agreement for approval by the Fourth World Health Assembly (EB7.R8; WHO, Official Records, No. 32, p. 3). The WHO/Egypt Agreement was signed on 25 March 1951 in Cairo by the representative of the WHO and by the representative of Egypt.

It is to be noted with particular interest that at the Fourth World Health Assembly (May 1951) Mr. A. Zarb, Chief of the Legal Office, on 17 May 1951 at the Legal Sub-Committee stressed the fact that:

"The Egyptian Government had so far shown a large measure of understanding and had in fact accorded the Organization most of the facilities necessary for the proper functioning of the Regional Office at Alexandria. However, although the Organization thus enjoyed the most courteous treatment, it would be highly desirable if such treatment be accorded de jure and not only de facto." (WHO, Official Records, No. 35, p. 315.)

The Fourth World Health Assembly (May 1951) took cognizance of the declaration made by the Egyptian declaration under the terms of which [p 148] paragraph 5 of the Notes to be exchanged neither extended nor restricted the scope of Section 31 in Article X, invited the Government of Egypt to reconsider point 5 in the text of the Notes to be exchanged, and approved the Agreement together with those Notes. Again, the question of point 5 of the Notes is not relevant here. At any rate, for reasons which are not germane to this case, the finalization of the Agreement had been postponed for a few years before the Agreement, which was approved by the Fourth World Health Assembly on 24 May 1951 (WHA4.59; WHO, Official Records, No. 35, pp. 41, 136 and 350) and ratified by Egypt on 8 August 1951, came into force on 8 August 1951.

**
36. I have mentioned the example of the Regional Office in India, alongside the case of the Regional Office in Alexandria, mainly for two reasons. First, the Regional Offices in India and Egypt were both set up in accordance with Article 44 of the Constitution, read with Article 46. Certainly in the case of India there was no question of integration of a pre-existing international organization, but the difference between the cases of Egypt and India, relating to the additional application of Article 54 in the case of Egypt, does not mean that the agreements are different in nature. The fact that the pre-existing organization was integrated with the WHO when the Regional Office in Egypt was established does not seem to have any substantial bearing on the interpretation of the 1951 WHO/Egypt Agreement, nor on the determination of any transfer of the Regional Office from the host country.

37. Secondly, as in the case of the WHO/Swiss Agreement on the legal status of the WHO in Switzerland, the negotiations for the establishment and location of the Regional Office, both in India and in Egypt, were dealt with in the WHO separately from the preparation of the agreement with the respective host countries. When the Swiss authorities initiated the negotiations on the agreement concerning the legal status of the WHO with that Organization, they anticipated that the headquarters might eventually be located in Switzerland. In the cases both of India and of Egypt, if the respective regional offices had not been located in these countries there would not have been a special agreement with the WHO concerning privileges, immunities and facilities. However, the process of the preparation of the WHO Agreements with India and Egypt, and also the process of determining the location of the regional offices in these two countries, were carried out separately; thus neither the WHO Agreement with Egypt, nor that with India, both of which were concluded apparently for the purpose of determining the privileges, immunities and facilities to be granted by the host government to the WHO, may be considered to constitute agreements governing the establishment and location of the Regional Office.

***

38. The 1951 WHO/Egypt Agreement carries the title "Agreement for the Purpose of Determining 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". Its preamble states that both parties desire to conclude an agreement for the purposes mentioned in the title, and adds:

"in particular with regard to its arrangements in the Eastern Mediterranean Region, and [for the purpose of] regulating other related matters".

The fact that a pre-existing international organization was integrated with the WHO is not mentioned in the preamble or the text, nor is there any mention of an agreement between the parties for the establishment of the Regional Office in Alexandria. The Regional Office in Alexandria is only once referred to by name, in a definition clause of this Agreement.
It is certainly true that the WHO/Egypt Agreement would not have been concluded if the office had not been located in Alexandria. This, however, is very far from justifying an assertion that an agreement for the establishment or location of the Regional Office in Alexandria is contained in the said Agreement. If, in fact, no such agreement is contained in the instrument, it is a matter of course that the negotiation and notice provisions of its Section 37 do not govern the transfer of the Regional Office.

**

39. It is a fact that, as stated in paragraph 12 above, in the process of negotiating Article 30 of the 1946 ILO/Swiss Agreement, which was indirectly copied by the WHO/Egypt Agreement, a clause suggested by Switzerland reading

"[Translation] The present Arrangement shall remain in force so long as the seat of the International Labour Organisation is maintained on the territory of Switzerland"

was dropped. The Swiss suggestion seemed to be quite logical as a reflection of the fact that the establishment and location of the headquarters of the ILO had been placed outside the scope of the agreement which was under negotiation. For whatever reason, that clause was withdrawn by the Swiss delegate, but this is not, in my view, to be regarded as signifying that the original intention of Switzerland had been rejected by the ILO.

40. In fact, the equivalent of this clause, which was suggested by Switzerland in its negotiations with the ILO in early 1946, is now to be found in a number of agreements which international organizations later concluded with host countries of their headquarters or regional offices, to some of which I shall now refer.[p 150]

*

41. The United Nations Headquarters was established in New York pursuant to the resolution adopted by the United Nations General Assembly on 14 December 1946. The Agreement concluded between the United Nationsand the United States (UNTS, Vol. 11,p. 12) on 16 June 1947 for the purpose of carrying out the resolution stated that:

"This agreement shall cease to be in force if the seat of the United Nations is removed from the territory of the United States . . ." (Art. IX, Sec. 24.)

42. In the case of the Intergovernmental Maritime Consultative Organization, the headquarters in London was determined in the IMCO Convention itself. The Agreement between the United Kingdom and IMCO of 1968 (UNTS, Vol.677, p. 3) indicated the purpose of the Agreement, without leaving any doubt, inasmuch as although the United Kingdom undertook to apply to the Organization the provisions of the Convention on the Privileges and Immunities of the Specialized Agencies, the conclusion of a supplemental agreement had been envisaged "to ensure that the Organization's legal status in the United Kingdom should be defined and the content of certain privileges, concessions and courtesies as well as the measure for their implementation should be formulated in detail" (preamble). The headquarters may be removed by virtue of a decision of the Assembly in accordance with Article 44 (b) of the IMCO Convention, and

"In the event of the Headquarters of the Organization being moved from the territory of the United Kingdom ..., this Agreement shall . . . cease to be in force." (Art. 18 (2).)

43. For the International Civil Aviation Organization, the seat of the headquarters was to be determined by the Interim Assembly of the Provisional International Civil Aviation Organization. After Montreal was chosen as the site of the headquarters of the ICAO, an agreement was concluded between ICAO and Canada on 14 April 1951 in pursuance of the desire "to conclude an Agreement on privileges, immunities and facilities by reason of the location in the territory of Canada of the Headquarters of the International Civil Aviation Organization". (UNTS, Vol. 96, p. 155.) Article VIII, Section 34, reads:

"This Agreement shall cease to be in force if the seat of the Organization is removed from the territory of Canada."

44. The case of the Internationa] Atomic Energy Agency is slightly different from the examples mentioned above. In this case the Statute does not contain any provision concerning its headquarters. Instead, unlike most other agreements which international organizations have concluded with host countries, the Agreement between Austria and the IAEA of 11 December 1957 (UNTS, Vol. 339, p. 152) mentions that this Agreement was concluded "to establish the seat of the International Atomic Energy [p 151] Agency in or near the City of Vienna and to regulate questions arising as a result thereof".

Yet it is provided that

"This Agreement shall cease to be in force ... if the permanent headquarters of the IAEA is removed from the territory of the Republic of Austria, . .." (Art. XX, Sec. 52)

thus implying that this kind of termination of the Agreement is different from its revision or denunciation.

45. The analysis of these agreements necessarily leads us to conclude that the transfer of the headquarters does not fall within their scope.


46. Mention may also be made of some agreements of international organizations with host countries of their regional offices, as follows:

The Agreement between the ILO and Ethiopia concerning the establishment of an office in Addis Ababa in 1964 (UNTS, Vol. 521, p. 217) states in its preamble that the ILO "has decided to establish an Office of the International Labour Organisation in Addis Ababa and the Government of Ethopia welcomes the establishment of such an office" but

"This Agreement ... will remain in force while the ILO office remains established in Addis Ababa." (Art. 9 (2).)

The Agreement between the ILO and Argentina of 1970 (UNTS, Vol. 725, p. 175) is of the same type and states:

"This Agreement shall remain in force for as long as the Office of the ILO remains established in the city of Buenos Aires." (Art. 4 (2).)

A more recent case of a similar type is seen in the Agreement between the United Nations and Japan regarding the headquarters of the United Nations University (Japanese Annual of International Law, No. 21, p. 222). The Agreement of 1976 states that

"The Agreement shall cease to be in force ... if the permanent headquarters of the University is removed from the territory of Japan . . ." (Art. XV, Sec. 31.)
These examples are not exhaustive at all, but simply chosen at random.

*

47. The listing of these examples seems to be sufficient to warrant rejection of the contention that the 1951 WHO/Egypt Agreement, being the sole instrument between the parties concerning the Regional Office in [p 152] Alexandria, must contain an agreement between them for the establishment and location of the Regional Office.

**

48. It is to be noted that, in these agreements, apart from the ILO/ Ethiopia Agreement and the ILO/Argentina Agreement, some transitional period is stipulated in such a way that, in spite of the clause mentioned above, such provisions in the agreements as may be applicable in connection with the orderly termination of the operations of the offices and the disposal of their property there are exempted from the cessation of the agreements. The United Nations/United States Agreement states, after a clause concerning the cessation of the Agreement as a result of the removal of the headquarters from the United States, the following:

"except for such provisions as may be applicable in connection with the orderly termination of the operations of the United Nations at its seat in the United States and the disposition of its property therein" (Art. IX, Sec. 24)
.
A clause identical in substance is seen in the ICAO/Canada Agreement, in the IAEA/Austria Agreement and in the United Nations/Japan Agreement. The drafting of the IMCO/United Kingdom Agreement is slightly different:

"this Agreement shall, after the period reasonably required for such transfer and for the disposal of the property of the Organization in the United Kingdom, cease to be in force." (Art. 18.)

The effect, however, is quite similar to that of the examples mentioned above.

49. In these agreements, which were concluded for the purpose of granting privileges and immunities to the organization, there are provisions which indicate that the agreements cease to be in force in the case of removal or transfer of the office from the territory of the host country, apart from revision of the provisions of the agreement and also denunciation by either party in the event of failure of negotiations for revision. However, the provisions necessary for the orderly termination of the functions of the organization and the disposal of its property allow for some reasonable transitional period.

The 1951 WHO/Egypt Agreement which is at issue in this case does not contain such provisions. This seems to indicate that this instrument, which does not contain agreements governing the establishment of the Regional Office, does not automatically cease to be in force even if the Office is transferred from the territory. The privileges, immunities and facilities granted by Egypt to the Organization under the 1951 WHO/Egypt Agreement will remain even after a decision by the WHO to transfer the Office, [p 153] and in particular until the time when the transfer is effected. Although it is not denied that most of the provisions of the 1951 WHO/Egypt Agreement will lose their raison d'être after the transfer is effected, the Agreement can only be terminated by mutual consent of the parties or by denunciation in accordance with Section 37.

***

50. In contrast to an agreement between an international organization and a State concerning the affording of services or co-operation which would bestow definite benefits on the State, the establishment of a headquarters or regional office is made mainly for the effective performance of the functions of the organization.

As Article 51 of the Constitution of the WHO provides, "the regional office shall ... carry out within the region the decisions of the Health Assembly and of the Board". No doubt the establishment and location of a regional office gives some incidental benefit, social, economic, political, to the host country. Besides, it is not conceivable that a regional office would be established against the wish of a host country, or even without the consent of a host country. In fact, as mentioned previously, it is clear from various documents that the Regional Office in Alexandria was established owing to the strong wish of Egypt to invite it onto its own territory.

There is no doubt that, prior to 1949, the office in Alexandria had most effectively exercised functions of an international nature. It is an undisputed fact that that office was integrated with the WHO. It is also not contested that Egypt, as the host country of the Regional Office, had always loyally and scrupulously carried out its obligations. If the transfer of this Office is decided upon, it will no doubt be tantamount to a blow of some magnitude to Egypt and its people. But if the Organization should deem is unnecessary to keep its Regional Office in that country, there is no reason why it should be obliged to retain the Office on the grounds that it was once established. The fact that a pre-existing office was integrated with the Organization does not have any bearing on this point.

It is not desirable, of course, that the Organization, the functions of which are situated in the field of world health, emphatically not a political but a humanitarian problem, should decide to shift the Office for political motives. Yet once the Organization, in its considered judgment, which the Court is not concerned with, finds it unnecessary or impossible to carry out its functions through the Office at Alexandria, the transfer or removal of the latter certainly falls within the competence of the World Health Assembly. Article 18 of the Constitution of the WHO provides that the determination of the policies of the Organization is one of the main functions of the Health Assembly. There is nothing in the 1951 WHO/ Egypt Agreement to affect such a determination.{p 154]

51. In considering under what conditions, and in accordance with what modalities, such a transfer may be effected, various factors must be taken into due account by the Organization. The function of the Executive Board includes, as provided in Article 28, giving effect to the decisions and policies of the World Health Assembly. In view of the fact that the defining of geographical areas and the establishment of regional organizations were effected by the Health Assembly, and the commencement of the operations of the office was determind by the Executive Board duly considering the convenience of the host country, consultations — rather than a negotiation — based on good faith and a spirit of co-operation concerning the conditions and modalities for the transfer, including the length of the transitional period, should be held between the WHO and the host country before the Executive Board's decision is taken. These consultations are not, however, a matter which falls within the context of the negotiation and notice provisions of Section 37 of the 1951 WHO/Egypt Agreement.

(Signed) Shigeru Oda.


[p 155]

Separate opinion of Judge Ago

[Translation]

1.I subscribe to the Court's conclusions so far as the reply to be given to the request for advisory opinion is concerned. Those conclusions define the mutual obligations incumbent on the organization and host State in the present case, in terms which largely correspond to what I myself have found, though on the basis of grounds and reasoning which in part are different.

In its Advisory Opinion the Court has made a series of pertinent observations concerning the "establishment" of an international organization in the territory of a host State. I would however have liked it on this occasion to have given a precise and complete definition of the very concept of such establishment, for I am convinced that this would have been the best approach to the problem which the Court had to face.

An international organization is like a State, a subject of international law, but it is one which enjoys limited international legal capacity, and in particular, unlike a State, it is a subject of law which lacks all territorial basis. Its "establishment" in the territory of a given State is therefore a conditio sine qua non of its actually functioning as an organization, carrying on its activities and fulfilling its object and purpose. Furthermore, for this condition in turn to be met, it is indispensable that the appropriate mutual consent should crystallize between the organization in question and a State which is ready to offer it the possibility of establishing its headquarters -or a subsidiary seat - in its territory. Here, though it is certainly necessary that the international organization, following deliberations by the organs competent in the matter under its own constitution, should manifest a desire to establish its seat within the territory of a certain State, this is clearly not sufficient by itself. That intention has to be matched by an intention manifested on their side by the organs competent under that State's constitution to accommodate the organization permanently within its territory, and to create there the conditions essential to its functioning. "Establishment" is therefore necessarily the subject of a bilateral agreement between the "organization" as subject of law on the one side and the "host State" as subject of law on the other, for, while it is true that an international organization cannot be compelled to establish itself, contrary to its own wishes, in the territory of one State rather than another, neither can a State be compelled, if it is not so disposed, to welcome an international organization within its territory and permit it there to carry on, in the [p 156] conditions indispensable therefor, the activities laid down in that organization's constitution. In making this observation, I am simply enlarging in different language on the very appropriate remarks to be found in paragraph 37 of the Advisory Opion.

However, this is by no means the last word on the subject of the nature and specific content of the concept of establishment. That concept is a "legal" concept, and the term "establishment" is a term of law. It would be erroneous to understand establishment, a legal fact, as being the equivalent of physical installation, because this may lead to the mistaken belief that establishment has come about simply because a de facto installation has taken place. As to the content of this concept, there is no doubt that it involves quite a number of elements. Among these are some with entirely or partly physical connotations, even though sometimes enshrined in legal provisions: e.g., the designation of the town fixed upon as seat and, within it, of the locality where the organization is to have its office and of the buildings, whether existing or to be erected, in which it is to be installed; likewise the timing and planning arrangements for this installation, and its eventual execution. But there are also elements of a legal nature, which are surely no less indispensable. These include, in particular, the determination of the legal status which the organization is to enjoy in the territory of the host State. The determination of this legal status is, in my view, the essential element of establishment qua legal fact: for upon it depends the possibility of the organization's taking up its functions and carrying on its activities in full independence, without any interference by the host State, while at the same time respecting the latter's territorial sovereignty.

I consider it necessary to stress this aspect, because in my view it would be absurd to imagine that the establishment of an organization in the territory of a State could come about without the conditions enabling it to exist and operate there as an international organization having first been defined. It is such a definition which makes possible that co-existence of two subjects of international law in one and the same territory which establishment essentially connotes. To take as an example the concrete case with which the present Advisory Opinion is concerned, I would point out that, had the Egyptian State insisted on certain conditions which at one stage in the negotiations it wished to see included in the agreement designed to fix the Organization's legal status in Egypt, and had the Organization, for its part, persistently regarded them as unacceptable, such an insuperable disagreement would obviously, it seems to me, have resulted in there not being any "establishment" whatever. The existing installation of the WHO Regional Office in the premises of the Alexandria Sanitary Bureau would then have been no more than a fact provisionally accomplished on the basis of an expected agreement which had ultimately failed to materialize: a fact destined to vanish no less rapidly than it had arisen.

This example aside, I would add that, for the purpose of defining the concept of establishment, it makes, to my mind, no real difference whether [p 157] its various component elements all materialize at the same time and, as sometimes happens, are lumped together in a single written instrument, or appear separately in a gradual process, with the written instrument being reserved for the final and conclusive element thereof, namely the determination of the legal status to be conferred upon the organization in the territory of the host State. This happens no less frequently and is, in fact, the present case.

It is, one may add, still more evident in the second of the two hypotheses that "establishment" is by nature a complex legal fact, and those Members of the Court who share the viewpoint described in paragraph 39 of the Advisory Opinion have made a point of stressing that in the present case the agreement governing the establishment in question, while, in the Court's words, a "single transaction", is none the less composed of various particular understandings which all converge to one goal and which, if they did not co-exist, could scarcely have effect. I believe in fact that even where the legal act covering all the various aspects of the establishment consists in a single instrument, the establishment as such remains a complex legal fact, this being intrinsically its nature. At all events, and quite aside from the search for the most appropriate theoretical definition, what really matters is that the establishment of an international organization in the territory of a host State postulates the eventual co-existence of a number of elements which, though distinct, all contribute to the crystallization of a single legal fact, which has no real existence unless and until it is completed and perfected by one indispensable element, namely the determination of the organization's legal status.

In sum, the establishment of an international organization in the territory of a host State is, to my way of thinking, a legal fact, emerging from bilateral action, possessing the characteristics and content indicated above, one which - as the Advisory Opinion points out in paragraph 43 -connotes the inception of a lasting bilateral relationship between two separate subjects of international law which are destined to co-exist in the territory of the same State.

II. It follows that the existence of this bilateral relationship, and the nature of the legal fact which underlies it, have to be kept in view whenever either party shows signs of intending to bring this legal relationship to an end. From that point of view it makes no appreciable difference whether such an intention is evinced by the organization wishing at a given moment to transfer its seat elsewhere, or by the State wishing to put an end to a presence in its territory which it is not disposed to countenance in future. Whatever the situation, I find it obvious that the party contemplating the cessation of the legal relationship in question is under an obligation to inform the other of its intention and of the reasons why it has come to harbour it, and that both jointly must then review in good faith the causes having prompted one of them to seek the termination of that relationship, consider the possibilities of overcoming any difficulty that may have arisen
[p158] and, failing these, seek ways and means of bringing the hitherto existing establishment to an end in the most appropriate manner and with the least detriment to the interests of either. For it must always be borne in mind that, objectively speaking, given the very nature of an international organization and the requirements for its functioning, any change of seat on its part — whether involving its headquarters or a major office — has to be regarded as an exceptional event which can hardly be accomplished without more or less profound and protracted disturbances in the lives of both the organization and the State which has been affording it hospi-tality.

Paragraph 43 of the Advisory Opinion very properly emphasizes that the legal relations between an international organization and the host State constitute a special regime. The paragraphs which follow it treat at length of the obligations to consult, negotiate and co-operate which this special regime implies, defining them in correct though cautious terms. At the same time they draw attention to the solid foundation for these obligations which already exists in the principles of general international law concerning the subject of international organizations, as well as what may be called the common principles emerging from the whole body of conventional instruments concluded between States and international organizations. I have myself nothing to add on this subject. On the other hand I would like to make a few further observations with regard to the treaty-law specifically binding upon the WHO and Egypt, for I am one of those who consider that the provisions of the Agreement of 25 March 1951 also apply to the eventuality of a transfer from Egypt of the seat of the WHO Regional Office for the Eastern Mediterranean.

I do not propose to dwell at any length on the question whether the Agreement of 25 March 1951 is a "host agreement" (accord de siège). I find it hardly feasible to contradict the opinion concordantly expressed by the two contracting parties on this point. On page 357 of Volume I (1948-1972) of the Handbook of Resolutions and Decisions of the World Health Assembly and the Executive Board the successive stages in the conclusion of this Agreement are set out under the heading "Host Agreement with the Government of Egypt" ("Accord de siège avec le Gouvernement de l'Egypte" in the French Recueil), and the same title is used on pages 356-358 for the Agreements of the same nature - based moreover on the same model — concluded with the Governments of Switzerland, India, the Phillipines, France and Denmark. The expression "host agreement" was also used in the correspondence of 1950 between the Government of Egypt and the WHO Regional Office concerning the negotiation of that Agreement; it was as a "host agreement" that the instrument was defined in the Royal Decree submitted to the Egyptian Parliament and received parliamentary approval. In addition to these formal pointers, others may be derived from an examination of the substantive content of the agreement.[p 159]

For this purpose it is enough to take account of such essential articles as Article III, which guarantees the Organization and its principal or subsidiary organs "independence and freedom of action" as well as "absolute freedom of meeting, including freedom of discussion and decision", or again Article X, directed to guaranteeing Egypt against any prejudice to its security resulting from the activity of the WHO. These are undeniably provisions characteristic of an agreement whose primary purpose is to render possible and effective the "establishment" of that major organ of the WHO known as the Eastern Mediterranean Regional Office and not merely, as some would have it through rather facile deduction from its title's short list of purposes, to heap the enjoyment of certain privileges and immunities upon an "establishment" already realized and perfected from every point of view. I therefore find it evident that the 1951 Agreement must be seen as a component element of that "establishment" of the WHO Eastern Mediterranean Regional Office in Egypt whose nature as a legal fact I have been striving to make plain. It must in fact be seen as the final and conclusive element in the whole process covered by the expression "establishment", the element which contributes to it the indispensable definition of the legal status of the organization in the territory of the State in which it establishes its seat. I do not think that I need expatiate further on this point.

The point on which, on the other hand, I consider it desirable to make some further observations relates to the divergence of views - so amply and efficiently summarized in paragraphs 40 and 41 of the Advisory Opinion — which has come to light among those who, while agreed in recognizing that the 1951 Agreement formed part of the single though composite transaction whereby the establishment of the WHO Regional Office in Egypt was accomplished, nevertheless remain divided with respect to one specific question. Their views in fact part company on the question whether the provisions of Section 37 of Article XII of the Agreement can be considered applicable in the event of a transfer of the seat of the Office from Egypt.

I recognize that the wording of Section 37 is not a model of clarity. At first sight it can certainly lead the reader to hesitate as to the answer to the above question. On reflection, however, considerations of two kinds lead me to think that the answer must be a positive one.

(a) In the first place, I must say that a careful consideration of the text, such as it is, of Section 37 suffices in itself to persuade me that it is highly improbable, not to say impossible, that the parties can have intended to provide so grave a sanction as the unilateral denunciation of the entire Agreement merely to meet a possible failure to agree upon a partial revision concerning this or that provision. Denunciation by Egypt of the 1951 host agreement would thus leave the Eastern Mediterranean Regional Office, after expiry of the period laid down in the final provision of Section 37, totally deprived of its special legal status and, consequently.[p 160]of the conditions indispensable for its functioning FN1. The maintenance of its establishment in Egypt would manifestly become impossible. The inescapable conclusion, therefore, is that in granting each other a power of unilateral denunciation the contracting parties had in view difficulties of a major kind liable, on account of their serious nature, to affect the desire of the Organization or of the host State to maintain the Regional Office's presence in Egypt.

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FN1 It should not be forgotten that at the time Egypt had not even become a party to the Convention on the Privileges and Immunities of the Specialized Agencies, which it was to ratify only later ; furthermore, this general convention does not contain clauses comparable with those to be found in an agreement for the establishment of an organization in the territory of a host State, such as Articles III and X of the 1951 Agreement.
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I would add that the transfer to another country of the seat of the Regional Office would not be a step which must necessarily lead to the extinction of the 1951 Agreement. The parties might possibly decide that it should remain in force in respect of those provisions not bound up with the existence in Egypt of the Regional Office, as well as such provisions as might be added pursuant, precisely, to an agreed revision. For example, the replacement of the Regional Office by a mere field office, or by an Egyptian office linked to the Organization by some form of collaboration, might serve as an occasion for so acting. In any case, it would be going much too far, in my view, to regard the applicability of Section 37 to the eventuality of one of the parties wishing to transfer the seat of the Regional Office from Egypt as ruled out because such a transfer would exceed the theoretical bounds of any "revision" of the Agreement.

The same kind of consideration impels me to make just one further remark. I would find it hardly explicable if, in the process of contracting an agreement, the parties, on specifically broaching in one of its clauses the question of its possible denunciation, should have chosen to settle it but partially and deliberately left a vague possibility of denunciation under general international law to subsist alongside the one textually provided for in the agreement.

(b) Secondly, I would point out that the question which has been raised in this connection could not in any event be resolved without a close examination of the origins of the clause embodied in Article XII, Section 37, of the Agreement of 25 March 1951.

What those origins were has been abundantly stated and proved in the course of the proceedings. The World Health Organization merely borrowed, quite consciously, from Article 30 of the Agreement between the Swiss Federal Council and the International Labour Organisation, adopted and signed on 11 March 1946 "to regulate the legal status of the Organisation in Switzerland", the wording which it first employed in the clause it inserted in Article 29 of the Agreement concluded with the Swiss Federal Council "to regulate the legal status of the WHO" in July-August 1948. The WHO subsequently reproduced it, practically unchanged, in
[p 161] Section 37 of Article XII of the 1951 host agreement with Egypt and in the corresponding provisions of the host agreements concluded with other States accepting regional offices on their soil.

The underlying provision - that in the ILO/Switzerland Agreement -had itself had a somewhat unusual origin. Instead of taking place, in the usual way, after the final choice of the seat of the organization, the negotiation of this agreement had, on the contrary, come first. In other words, the legal status of the Organisation was defined by mutual agreement on the basis of the expectation that Geneva would definitely be chosen for that seat. The object of thus anticipating this choice was obviously to enable the ILO administration to tell the Twenty-Ninth Session of the Conference, which was to be held at Montreal in the summer of 1946 and to consider constitutional questions including the location of the Organisation's headquarters FN1: (1) that the Swiss Government had indicated "that the International Labour Office would be most welcome in Geneva at any time", and (2) that, in accordance with the intention it had evinced on the same occasion, of guaranteeing, through an agreement with the Organisation, "the full independence necessary for the effective discharge of its international responsibilities" FN2, the Swiss Government had in fact already, on 11 March 1946, concluded an agreement with the ILO confirming this intention.

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FN1 A question that had become pressing owing to the need to amend the article of the Constitution which provided that the ILO should be established at the seat of the League of Nations.
FN2 See, in connection with all this, the reports of the Conference Delegation on Constitutional Questions on the work of its first session, held in London from 21 January to 15 February 1946 (Constitutional Questions, Part 1, para. 32, p. 24).
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Now, as is briefly mentioned in paragraph 41 of the Advisory Opinion, there were two conflicting approaches during the negotiations between the two parties, who were respectively represented by two jurists, the late lamented Wilfred Jenks and Paul Guggenheim. Seeking to protect the agreement from any possible reconsideration by the host government and, above all, to ensure the permanent stability of its establishment in Switzerland, the Organisation proposed the insertion of a provision to the effect that the agreement might only be revised by common accord between the parties and that accordingly no unilateral denunciation should be allowed. The Swiss Government, on the other hand, preferred to keep open the possibility of such denunciation. The parties accordingly settled on a compromise, and it is that compromise which is found enshrined in the wording of Article 30 of the ILO/Switzerland Agreement.

In the light of these facts, and given the respective standpoints of the contracting parties, there are, I find, two interlinked conclusions which must be drawn, namely that they were both agreed upon a power of unilateral denunciation strictly contained within the limits of the provisions of Article 30, and that the term "revision" as used in this clause was understood in its widest connotation and thus covered in particular the [p 162] eventuality of the radical revision which would be entailed by a change in the seat of the organization. Considering, therefore, that the WHO plainly intended to follow the model so conveniently afforded by the 1946 ILO/ Switzerland Agreement when it came to conclude its own Agreement with the same State in 1948, as also in proceeding to the conclusion of all its other host agreements, 1 find it truly difficult to imagine that this formula acquired in what, so to speak, were derivative instruments some other meaning and scope than it possessed in the underlying model.

The reader of these conclusions will readily appreciate that 1 have not been persuaded by the reasoning of those who argue that the provisions of Section 37 in Article XII of the WHO/Egypt host agreement of 25 March 1951 must be regarded as totally irrelevant to the questions laid before the Court in the present case.

Being lex specialis, a treaty provision in force between two parties has inherent priority over such rules of a general nature as may also be applicable between them. It consequently remains my view that consideration of the provision in question ought to have been given pride of place in the process by which the Court reached its opinion in the case. At the same time, I would not for a moment deny that it was useful, indeed needful, to turn to general international law in order to seek in the overall principles and rules governing the law of treaties and the law of international organizations a confirmation of the conclusions drawn from those of treaty-interpretation. It is moreover a fact that, in the present case, the parties' mutual obligations are finally expressible in the same terms, no matter from what source derived. One could scarcely detail the obligation of consultation laid down in the second sentence of Section 37 more effectively in respect of the present case than has been done in paragraph 49 and the operative part of the Advisory Opinion. Even where the obligation of notice stated at the end of Section 37 is concerned, it must not be forgotten that this provision is obviously a residual rule intended to provide a fair yardstick for application solely if it proves impossible to agree upon the "reasonable period of notice" mentioned in subparagraph (c) of the Court's definition of the parties' obligations. It was from this standpoint that I felt able to concur in the conclusions of the Court and the Advisory Opinion in which they are set forth.

(Signed) Roberto Ago.

[p 163]

Separate opinion of judge El-Erlan

I concur in the Opinion of the Court. I am in agreement with the analysis of the facts of the case, the statement of the applicable principles of law and the precise and clear replies furnished by the Opinion. I am moved to write a separate opinion, first to elaborate on a few preliminary questions, and second to relate some of the points raised in the Opinion to the general law of international organizations.

*

I wish first to address myself to a question of a preliminary character relating to the constitutional grounds and substantive reasons on the basis of which I opted for giving positive replies to the present request. The two questions posed in the request are legal questions. One concerns a problem of treaty interpretation. The other seeks to enunciate the legal responsibilities of the parties to the treaty envisaged in the first question in case of an affirmative answer to that question.

In the written and oral statements and documents submitted to the Court, a number of issues concerning the interpretation of certain provisions of the Constitution of the World Health Organization and other legal texts were raised. These questions involved: (1) the interpretation of the 1951 host agreement between Egypt and the World Health Organization and the conditions applicable to its revision and denunciation; (2) the power of an international organization to establish a regional office and the conditions for the exercise of such a power; (3) the rules governing the integration with the WHO of pre-existing inter-governmental regional health organizations; and (4) the legal principles regulating the selection and transfer of the site of a regional office. All these are legal questions, "arising within the scope of the activities" and "within the competence of the Organization", on which the WHO has been "authorized" to "request advisory opinions of the Court" (Art. 96, para. 2, of the Charter of the United Nations; Art. 65, para. 1, of the Statute of the Court; Art. 76 of the Constitution of the WHO; Art. X, para. 2, of the 1947 Agreement between the United Nations and the WHO).

In the debates in the World Health Assembly on the draft resolution which served as a basis for the present request, some of the statements of those who opposed the draft resolution appeared to imply that the question of the transfer of the Alexandria Regional Office was a political question. This was by no means the first occasion on which similar exceptions had been taken in connection with requests for advisory opin-[p 164] ions of the Court, whether in the course of debates before the international organization requesting the opinion, or in the written or oral arguments submitted to the Court. In one of its opinions this Court stated:

"It has been argued that the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. It is true that most interpretations of the Charter of the United Nations will have political significance, great or small. In the nature of things it could not be otherwise. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision." (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 151.)
A distinction should, therefore, be made between the political character of the problem which gives rise to a request for advisory opinion and the legal character of the question which constitutes the subject-matter of the requested opinion. The criterion is the intrinsic nature of the questions rather than the various extrinsic factors.

But even if the question put to the Court is a legal question, the Court may decline to answer it. Basing itself on what it termed the "permissive character" of Article 65 of its Statute, from which its power to give an advisory opinion is derived, the Court stated in one of its Opinions that it had "the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the request" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 72). In another Opinion the Court said that only "compelling reasons" should lead it to refuse to give a requested advisory opinion (Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, I.C.J. Reports 1956, p. 86). I see no reasons, compelling or not, for the Court to depart in the present request from its consistent practice of acceding to requests for advisory opinions. There are valid reasons, and indeed a need for giving authoritative legal guidance to the WHO. When the opinion of the Director of the Legal Division of the WHO was sought by the World Health Assembly on the interpretation of Section 37 of the 1951 Agreement between the WHO and Egypt, he contented himself with pointing out the issues involved and the alternative possible interpretations. He refrained from giving a definitive interpretation. Nor was the Working Group of the Executive Board of the WHO able to agree on a definitive interpretation of Section 37 of the 1951 Agreement. In its resolution WHA 33.16 of 20 May 1980 the World Health Assembly noted that "the Working Group of the Executive Board has been unable to make a judgment or a recommendation on the applicability of Section 37 of this Agreement" (the Agreement of 1951). In paragraph 4.3 of its report, the Working Group stated that it was "not in a position to decide whether or not Section 37 of the Agreement with Egypt is applicable", and that "the International Court of Justice could possibly be requested to [p 165] provide an advisory opinion under Article 76 of the WHO Constitution" (WHA33/19/Ann. 1, EB65/19 Rev.l, 16 January 1980).

***

Another question of judicial policy which weighs with me to the extent that it needs to be specially brought out is briefly stated below. In the debates in the World Health Assembly on the draft resolution proposing the request for the present opinion, some of those who opposed the proposal alleged that it was a political manoeuvre designed to postpone the decision concerning the transfer of the Regional Office. I wish to note first that the jurisprudence of the Court has established that it "is not concerned with the motives which may have inspired [the] request" (Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61; see also Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I. C.J. Reports 1950, pp. 6 f.; and Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).

But I also wish to point out that when concern is expressed in the debates in an international organization regarding the legal implications of a certain decision, such concern is a legitimate one which should be satisfied and not be dismissed as dilatory tactics. It is imperative for international organizations to base their actions on valid and solid legal grounds and take their decisions in full awareness of their legal implications and guided by an authoritative interpretation of their constitutions. The overriding objective should be the observance of the principles of the organization and the fulfilment of it purposes. The common interest of the member States of the organization can be adequately assured not through the excessive influence of political considerations which are of a transient character but on the basis of respect for legal safeguards and constraints. The United Nations is required by its Charter to carry out its most political function, which is the maintenance of international peace and security, and the settlement of international disputes, under Article 1, paragraph 1: "in conformity with the principles of justice and international law".

From the outset, the General Assembly of the United Nations recognized the importance of the role of the advisory jurisdiction of the Court in the interpretation of the constituent instruments of the specialized agencies. At its second session in 1947, the General Assembly adopted a resolution on the "need for greater use by the United Nations and its organs of the International Court of Justice". In its resolution 171 (II), the General Assembly noted that "it is of paramount importance that the interpretation of the Charter of the United Nations and the constitutions of
[p 166] the specialized agencies should be based on recognized principles of international law" (emphasis added). It recommended that

"Organs of the United Nations and the specialized agencies should, from time to time, review the difficult and important points of law within the jurisdiction of the International Court of Justice which have arisen in the course of their activities and involve questions of principle which it is desirable to have settled, including points of law relating to the interpretation of the Charter of the United Nations or the constitutions of the specialized agencies, and, if duly authorized in accordance with Article 96, paragraph 2, of the Charter, should refer them to the International Court of Justice for an advisory opinion."

***

In considering the full meaning and implications of the questions on which the Court was asked to give advice, the Opinion rightly states that, although the questions in the request are formulated in terms only of Section 37 of the 1951 Agreement, the true legal question under con-sideration in the World Health Assembly and therefore the legal question submitted to the Court by the request is : What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected ? I fully agree with the Opinion's assertion that if the Court is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction it must ascertain what are the legal questions really at issue in questions formulated in a request.

I wish to make two comments on the power of the Court to interpret a question submitted to it for an advisory opinion.

The first comment relates to the jurisprudence of both the Permanent Court of International Justice and this Court. This jurisprudence establishes that, this being inherent in the quality of the Court as a judicial organ, it has the power to interpret any request for advisory opinion. This power has been exercised by the Court both to determine the object for which the question was put, and in interpretation of the question itself. Instances in the jurisprudence of both the Permanent Court of International Justice and the present Court are to be found in the following cases: Nationality Decrees Issued in Tunis and Morocco; Status of Eastern Carelia; Competence of the ILO to Regulate Incidentally the Personal Work of the Employer; Jurisdiction of the European Commission of the Danube; Jurisdiction of the Courts of Danzig; Free City of Danzig and the ILO; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory; Conditions of Admission of a State to Membership in the United Nations; Interpretation of Peace Treaties with Bulgaria, Hungary [p 167] and Romania; Effect of A wards of Compensation Made by the United Nations Administrative Tribunal ; Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of South West Africa; Admissibility of Hearings of Petitioners by the Committee on South West Africa ; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization ; Certain Expenses of the United Nations.

In his book on The Extent of the Advisory Jurisdiction of the International Court of Justice (Leyden, 1971) Kenneth James Keith presents a detailed analysis of cases where the Court found it necessary to "redraft" the question posed it in order to ascertain its real object and true meaning.

I wish also to point out that the principle of effective interpretation is also inherent in the purpose and raison d'être of the advisory jurisdiction of the Court. In one of its resolutions requesting an advisory opinion of the Court, the General Assembly of the United Nations used the words "Re-cognizing its need for authoritative legal guidance" (G.A. res. 1731 (XVI)). If the Court is to provide such guidance, it cannot content itself with giving a formalistic or simplistic reply based on a narrow construction of the question as drafted. It is incumbent upon it to establish what is at issue and what is involved when an international organization is contemplating a certain course of action and seeking clarification of legal issues and the provision of guidelines based on legal principles and rules.

In evaluating the purposes served by the advisory jurisdiction of the Permanent Court of International Justice, Manley Hudson singled out in particular its contribution to the work of the Council of the League of Nations, the International Labour Organisation and other international bodies which were able, through the Council of the League, to request advisory opinions. In his work on the old Court, Hudson states:

"In several instances, advisory opinions greatly facilitated the work of the Council of the League of Nations .. . [T]he Court's opinion may clarify difficult questions as to the Council's competence, or it may dispose of legal questions which condition progress in the settlement of political issues. ..

Advisory opinions also facilitated the efficient functioning of international institutions other than the Council. International bodies do not operate automatically, and many legal questions may arise to impede their action. In numerous instances authoritative answers to such questions were obtained from the Court through the mediation of the Council." (Manley O. Hudson, The Permanent Court of International J ustice 1920-1942, A Treatise, 1943, p. 523.)

The contribution of the new Court to the work of the United Nations system cannot be over-emphasized. Owing to the new organic relationship [p 168] of the Court with the United Nations (the Statute being an integral part of the Charter and the Court being one of the principal organs of the United Nations) the Court regards itself, rightly, as being under the duty of participating, within its competence, in the activities of the Organization. The same applies to the other international organizations related to the United Nations, i.e., the specialized agencies which may directly request advisory opinions of the Court.
The importance of authoritative legal guidance to the work of international organizations is reflected in the relatively substantia] number of advisory opinions relating to the competence of international organizations. Out of the 15 requests for advisory opinions submitted to this Court, no less than ten related to the interpretation of legal issues concerning the competence of the United Nations and certain specialized agencies.

*****

I turn now to the question of the power of the WHO to select and transfer the seat of one of its regional offices and the conditions for the exercise of such a power. The Opinion has rightly pointed out that this power is not absolute and that international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties. I wish to make a few reflections with a view to putting this problem in the context of the general law of international organizations.

Constituent instruments of international organizations contain provisions which establish their principal organs and empower those principal organs to establish subsidiary organs as they deem necessary for the performance of certain tasks. Characteristically, a subsidiary organ has been established to carry out a specific task assigned to it by one of the principal organs and has gone out of existence when the task has been completed. Thus there are what may be called "short-lived" subsidiary organs engaged in preparatory work, appointed to investigate particular situations, or asked to study and report on some aspect of the organization's activities. Conversely, there are what have been referred to by some writers as "operating agencies", functioning on a "continuing" basis. They are to be found in particular in the sphere of economic, social and technical activities of international organizations, for example, the regional Economic Commissions of the United Nations, Development Programme Regional Offices, regional Information Centres and regional seats or offices of the specialized agencies. Operational regional offices are usually located in the territory of a State other than the State in whose territory the seat of the organization itself is located. This renders necessary, in addition to the decisions and acts adopted within the internal law of the organization, an agreement with the State which is chosen to host the operational [p 169] regional office. Thus while the power of an organization to establish a regional office is derived from its constituent instrument and lies within its discretion, the process of such an act involves the host State in whose territory the regional office performs its activities and enjoys the legal status necessary for such performance and enforced within the sphere of action of the host State. The establishment of the regional office, is, therefore, not a matter so absolutely and exclusively within the discretion and power of the organization. The provision of a constitution of an international organization empowering the organization to establish a regional office cannot be interpreted in the abstract or in a vacuum. It must be taken in conjunction with the other components of the process of the establishment of the regional office and not separately from the actual development of that process.

The composite character of the process illustrates the compound nature of the legal act of establishing a regional office of an international organization. A decision is first taken in principle for the establishment of a regional office. An invitation is extended by one of the States of the region to host the office. The organization then decides to accept the invitation tentatively and empowers its Director-General to enter into negotiations with the State extending the invitation, with a view to determining the legal status of the office, its privileges and immunities, the facilities to be accorded by the host State and other working conditions. On the side of the host State some preliminary steps are taken through the enactment of national legislation which is subsequently completed and consecrated vis-à-vis the organization by the host agreement. The establishment of a regional office therefore comprises certain acts which belong to the internal law of the organization; their sources are the constituent instruments and decisions of the organization. But it also comprises certain acts which fall within the territorial field of operation of the regional office, which is the territory of the host State. The sources of these acts are the host agreement and the related contractual engagements and arrangements. In other words, two sets of law are involved here: the internal law of the organization, and the law governing its external relations with States.

It follows that a regional office established by such a composite legal act and elaborate process cannot be de-established without due regard to the nature and character of such an act and process. The requirement of consultations, negotiations and a notice period as a guarantee for the stability of elaborately worked out and longstanding arrangements for institutionalized co-operation among States and safeguards against their abrupt discontinuance cannot be considered as something which would fetter the power of an organization to establish a regional office.

One must distinguish between the power of an organization to establish a regional office, which certainly is granted to it and is within its discretion, and the exercise of such power, which may be submitted to certain safeguards and conditions. The same applies to the host State. Its consent is [p 170] necessary for the hosting of a regional office in its territory which is a manifestation of its territorial sovereignty. But once this consent is given in an internationally binding engagement, it becomes subject to whatever safeguards have been provided for and in particular the notice period attaching to any demand on its part for the transfer of the office from its territory. Another illustration is to be found in the case of withdrawal by a State from an international organization, which is an attribute of sovereignty, but for which a notice period is usually required.

***

In supporting or opposing the application of Section 37 of the 1951 Agreement in the case of the transfer of the WHO Regional Office from Egypt, the written and oral statements submitted to the Court appear to draw legal differences and conclusions from the question whether the Agreement is a "headquarters or host agreement" or an "agreement on privileges and immunities".

Before stating how I view the 1951 Agreement in the light of its genesis and nature, its legislative history and terms, I wish to make the following observation:

In grouping all the agreements relating to the seats of international organizations, whether the principal seats of the organizations or the seats for their regional offices, as well as the arrangements for the places where meetings of their organs or conferences convened under their auspices are held in the territory of a State other than the State in whose territory the seat of the organization is located, three categories may be identified. There are first the "headquarters agreements" which are concluded between the United Nations and specialized agencies on the one hand, and States in whose territory they maintain headquarters on the other hand. There are secondly the General Conventions on the Privileges and Immunities of the United Nations and the Specialized Agencies, which were concluded in 1946 and 1947 respectively.
The purpose of these two categories and their object is the definition of the legal status, privileges and immunities of the organization, its officials, representatives attending the meetings of its organs and conferences and other persons engaged in its activities. They contain provisions which recognize the legal capacity of the organization and accord it and its property and assets immunity from every form of legal process. The premises of the organization are inviolable. Representatives of member States are accorded privileges and immunities generally enjoyed by diplomatic envoys. Certain privileges and immunities are also accorded for officials of the organization and for "experts on mission" for the organization. Therefore there is no basic difference in their legal nature. There are differences of orientation and emphasis which derive from the difference regarding the parties to the agreement and its sphere of operations. A headquarters agreement is concluded between the organization and the [p 171] host State. It defines the status of the seat of the organization and covers the activities of the organization which takes place within the territory of the host State. On the other hand, the Conventions on Privileges and Immunities are addressed to all member States and are designed to apply to the organizations' activities in their respective territories.

The third category consists of what may broadly be referred to as "special agreements". The Repertory of the Practice of the Organs of the United Nations, Vol. V (1955), contains in its section on Articles 104 and 105 of the Charter a synoptic survey of these special agreements. It includes agreements complementary or supplementary to the General Convention, agreements applying the provisions of the General Convention in cases where Members have not yet acceded to the Convention, and agreements specifying the nature of privileges and immunities to be enjoyed by certain United Nations bodies in host countries (see also Suppl. No. 1, Vol. II (1958), Suppl. No. 2, Vol. III (1963) and Suppl. No. 3, Vol. IV (1973)).

Jenks gives a detailed enumeration of these special agreements, classifying them in the following categories:

(a) Host agreements (examples: agreements concluded by the World Health Organization for its regional offices with Egypt, France and Peru, and by the International Labour Organisation for its field offices with Mexico, Peru, Turkey and Nigeria).

(b) Agreements relating to special political tasks (examples: agreements
concerning the United Nations Emergency Forces).

(c) Technical assistance and supply agreements.

(d) Agreements concerning particular meetings (example: the Agreement of 17 August 1951 between the United Nations and France relating to the holding in Paris of the Sixth Session of the General Assembly). (C. Wilfred Jenks, International Immunities, 1961, pp. 7-11.)

The texts of all the above-mentioned agreements are grouped in the United Nations Legislative Series under the title of Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations (ST. 1 LEG/SER.B10 and 11). Moreover, whenever an agreement is a "host agreement" or an "agreement on privileges and immunities", its principal objective in either case is the regulation of the legal status of the organization (or an organ or conference thereof) and its privileges, immunities and facilities within the territory of the host State. This notion is reflected in the definition of host agreements given by P. Cahier:

"[Translation] agreements concluded between an international organization and a State with the object of establishing the status of that [p 172] organization within the State in whose territory it has its seat and defining the privileges and immunities which will be granted to it and its officials" (Etude des accords de siège conclus entre les organisations internationales et les Etats oúelles resident, Milan, 1959, p. 1, and Le droit diplomatique contemporain, Geneva/Paris, 1962, p. 45).

Cahier, like Jenks also, includes among host agreements the 1951 Agreement between Egypt and the WHO (Etude des accords de siège..., op. cit., p. 432).

Having made these observations on "headquarters agreements" and "agreements on privileges and immunities" in general, I wish now to turn to the 1951 Agreement between the WHO and Egypt. A careful examination of the circumstances of its conclusion, the purposes sought to be achieved by such an instrument and an analysis of its provisions clearly reveal that the Agreement is a "host agreement". It was intended to regulate the legal status and activities of the Regional Office in Alexandria. The Preamble of the Agreement states:

"Desiring to conclude an agreement for the purpose 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 other related matters." (Emphasis added.)

A number of the provisions of the Agreement contain references to "the Regional Committee of the Eastern Mediterranean Region", "the Regional Office in Alexandria", "the Regional Director in Egypt and his Deputy" and "the necessary police supervision for the protection of the seat of the Organization and the maintenance of order in the immediate vicinity thereof". These references indicate that one of the basic purposes of the Agreement is to regulate the activities of the Regional Office in Alexandria and that it serves as the instrument governing its legal regime.

The fact that the Office started its operations before the conclusion of the 1951 Agreement does not change the legal situation. In practice some de facto arrangements of an interim character precede the formal establishment of such offices before their consolidation in and consecration by the agreement governing their legal status. The headquarters agreement of the United Nations itself was preceded by such provisional arrangements. On 14 February 1946 the General Assembly, meeting in London, accepted the invitation of the United States Congress of 10 December 1945 to establish it headquarters in the territory of the United States. The United Nations established itself there from that time on, although the headquarters agreement was not concluded until 26 June 1947. The de facto character of the arrangements which were made prior to the conclusion of the [p 173] 1951 WHO/Egypt Agreement was confirmed by a representative of the WHO in a statement, made to the Fourth World Health Assembly in the course of its consideration of the proposed agreement, in which he

"stressed the fact that the Egyptian Government had so far shown a large measure of understanding and had in fact accorded the Organization most of the facilities necessary for the proper functioning of the regional office at Alexandria. However, although the Organization thus enjoyed the most courteous treatment, it would be highly desirable for such a treatment to be accorded de jure and not de facto" (WHO, Official Records, No. 35, p. 315).

Of no legal bearing on the 1951 Agreement either is the transfer of functions from the Alexandria Sanitary Bureau to the Regional Office of the WHO for the Eastern Mediterranean, whether it was effected by a unilateral statement by the Egyptian Government or by the statement and its acceptance which were described by the Director of the Legal Division of the WHO in his replies to the questions put to him by the Court as "[Translation] separate but concordant unilateral statements by those parties" (sitting of 23 Oct. 1980). The transfer of functions from the Alexandria Sanitary Bureau and the establishment of the Regional Office in Alexandria are two distinct operations which have different objects and subject-matters and thus require two separate legal acts.

Furthermore, it is difficult to accept the view that the establishment of the Regional Office in Alexandria was made by a "unilateral act of the Organization" or by "an agreement in simplified form" resulting from the acceptance by Egypt of the decision of the Organization. It involved a composite legal act and could not be effected by a unilateral decision of the organization, inasmuch as its field of operation was the territory of a State, whose consent was necessary. In the long process which the establishment of a regional office requires, the host State extends an invitation to the organization to establish one of its subsidiary organs in its territory. Then the organization decides likewise, a decision in which the host State when it is a member of the organization concurs, and its individual will is a part of the general will which produces the decision. Subsequently a number of preliminary steps are taken and negotiations are held to put them in a definitive form and embody the legal regime which governs the accumulative institution in a formal instrument. An agreement by which a State hosts a regional office which enjoys inviolability and immunity from all forms of legal process requires, according to the constitutional requirements of the host State, a number of legislative acts which cannot and are not based on "agreement in simplified form". Nor can the organization give its definitive consent to the setting-up of one of its subsidiary organs before final agreement on the specific modalities of such a legal regime and its consecration in an instrument binding on and enforceable vis-à-vis the host State. And once such an instrument enters into legal force, it integrates the previous acts, arrangements and understandings and becomes [p 174] the law governing the operation of the institution, any changes in its rules and its eventual termination.

***

The last point which I wish to comment upon concerns the conditions for the transfer of the Regional Office.

Section 37 of the 1951 Agreement confers upon both parties the right to denounce the Agreement following failure to agree on certain provisions requested by either of them. It provides for guarantees to guard against abrupt denunciation or disruptive termination of the Agreement. It requires consultations between the parties concerning the modifications to be made in its provisions. It also requires two years' notice for denunciation of the Agreement in case the negotiations for revision do not result in an understanding within one year. The requirements and guarantees contained in Section 37 manifest the intention of the parties to ensure the security and stability of a regional office, set up for an indefinite period, through the establishment of which in the territory of the host State the latter was enabled to continue its regional role in the health field. Such a role is of long standing and dates back as far as 1831.

It has been argued in some of the statements submitted to the Court that Section 37 is not a denunciation but a revision clause. It would, it is contended, apply exclusively to cases of denunciation subsequent to failure to reach agreement on certain demands for revision, and not to the transfer of the seat of the Regional Office. I have not found the arguments in support of such a restrictive interpretation of Section 37 to be warranted or well conceived. Both the legislative history and the general law of international organizations lead me to opt for the effective interpretation of Section 37.

Section 37 of the 1951 Agreement is modelled on a formulation originally employed in the headquarters agreement of 1946 between Switzerland and the International Labour Organisation and subsequently reproduced in the headquarters agreement of 1948 between Switzerland and the World Health Organization. The materials submitted to the Court by the Legal Adviser of the International Labour Organisation on the negotiations which led to the conclusion of the 1946 Agreement indicate that the parties intended that denunciation of the Agreement should be required in order to remove the seat.

The transfer of the seat of the Regional Office at Alexandria would connote revision of the 1951 host agreement inasmuch as it would deprive it of its subject-matter at a stroke. To argue that the safeguards provided for in Section 37 do not apply to the transfer of the seat would imply conceding to one party to the Agreement the power to circumvent these [p 175] guarantees by resorting to a technicality which would allow it to frustrate the very object of the instrument without complying with the procedure prescribed for denunciation consequent upon a request for revision of one or more provisions of the Agreement.

Interpreting Section 37 as requiring the notice period provided by it in the case of the transfer of the Office is also in conformity with the general law of international organizations. A study of the headquarters agreements of international organizations indicates that the requirement of a notice period is a common feature. Their provisions on the matter could be considered as evidence of a customary rule. Concern with the security and stability of arrangements for institutionalized inter-State co-operation is also reflected in the established rule contained in the constituent instruments of international organizations, requiring a notice period for withdrawal from membership.

In considering the question of the application of Section 37 of the 1951 Agreement to a transfer of the Regional Office, the Opinion has adopted a broad approach which views it within "the general legal framework in which the true legal issues before the Court have to be resolved". It has pointed out that whatever view may be held on this question, the fact remains that certain legal principles and rules are applicable in the case of such a transfer. They relate to consultations prior to the decision to transfer, negotiations concerning the conditions and modalities of trans-fer, and a reasonable transitional period between the notification of the decision and its eventual coming into effect.

I note with concurrence that one of the final conclusions of the Opinion (para. 43) states that: "This special legal regime [regulating the Regional Office] of mutual rights and obligations has been in force between Egypt and WHO for over thirty years", that "the result is that there now exists in Alexandria a substantial WHO institution employing a large staff and discharging health functions important both to the Organization and to Egypt itself" and that "any transfer of the WHO Regional Office from the territory of Egypt necessarily raises practical problems of some importance".

I agree with the Opinion's statement that:

"These problems are, of course, the concern of the Organization and of Egypt rather than of the Court. But they also concern the Court to the extent that they may have a bearing on the legal conditions under which a transfer of the Regional Office from Egypt may be effected."

It is evident that all this has to be borne in mind and taken into due account in the consultations and negotiations between the WHO and Egypt regarding the determination of what the Opinion refers to as a "reasonable [p 176] period of time... required to effect an orderly transfer of the operation of the Office" and "with a minimum of prejudice to the work of the Organization and the interests of" the host State.

The Opinion rightly points out that what periods of time may be involved in the observance of duties to consult and negotiate and what period of notice of termination should be given, are matters which necessarily vary according to the requirements of the particular case. The con-clusion to be drawn from this general statement when applied to the present case is obvious inasmuch as the latter concerns an arrangement of inter-State institutionalized co-operation which is well-established and of long standing, and has been functioning in an effective manner for the common interest. It is imperative to protect the legal regime created by such arrangements from being suddenly and precipitately terminated.

Another point which invites comment on my part relates to what the Opinion of the Court refers to as "some indications as to the possible periods involved" in the event of the transfer of the seat of the Regional Office from the territory of the host State. In reviewing a number of host agreements concluded by States with various international organizations, and containing varying provisions regarding the revision, termination or denunciation of the agreement which were brought to the Court's attention, the Opinion rightly makes a distinction between two main groups. The first group provides the necessary regime for the seat of headquarters or regional offices "of a more or less permanent character". The second group provides a regime for other offices "set up ad hoc and not envisaged as of a permanent character". The Opinion rightly includes the host agreements for regional offices concluded by the WHO in the first category. The Court has stated that some indications as to the possible periods involved can be seen in provisions of host agreements, including Section 37 of the Agreement of 25 March 1951, as well as in Article 56 of the Vienna Convention on the Law of Treaties and in the corresponding article of the International Law Commission's draft article on treaties between States and international organizations or between international organizations. I wish to observe that this statement is so general in its scope as to cover the different categories of host agreement. It should be noted, however, that the reference in this context to Article 56 of the Vienna Convention on the Law of Treaties, and to the corresponding article of the International Law Commission's draft articles on treaties between States and international organizations or between international organizations, applies to cases in which no provision for denunciation is included and hence the residual rule enunciated in these two articles is required. In the present case concerning the WHO Regional Office in Egypt, there is no need for any residual rule. The 1951 Agreement provides a contractual rule which the parties have adopted. It expresses their intention as to what notice period should apply to the termination of the activities of the Regional Office. Therefore the indications which apply to the present case and have particular relevance are to be found in Section 37 of the 1951 Agreement, supplemented by whatever may be necessary to provide a reasonable period for an orderly [p 177] termination of the activities of the Regional Office in Alexandria, which was set up as an operational organism concerned with health: the most imperative of all the technical fields of inter-State co-operation. This organism, as I mentioned before, was set up as an indefinite arrangement, is well-established and of long standing, and has discharged its functions satisfactorily in the common interest of the member States of the region concerned.


(Signed) Abdullah El-Erian. [p178]

Separate opinion of judge Sette-Camara

I fully subscribe to the decision and operative part of the Advisory Opinion, but, since my reasoning deals with some points not contemplated by the Court, I feel myself bound to append a separate opinion setting out my views.

There is no doubt about the right of the World Health Organization to resort to an advisory opinion of the Court in matters related to the interpretation of the Agreement of 25 March 1951 between the World Health Organization and Egypt. This right is based on Article 96, paragraph 2, of the Charter of the United Nations, Article 65, paragraph 1, of the Statute of the Court and Article X, paragraph 2, of the Agreement between the World Health Organization and the United Nations adopted by the First World Health Assembly on 15 November 1947. Moreover Article 76 of the Constitution of the World Health Organization expressly reserves such right to the Organization. The advisory jurisdiction of the Court is therefore properly resorted to and soundly established. On the other hand, notwithstanding the discretionary nature of the Court's power to give advisory opinions, in its whole existence there has been no instance in which this power was exercised in a negative way. In pursuance of its longstanding jurisprudence, the Court could hardly refuse to comply with the request of the World Health Organization.

It is equally clear that the request is related to a "legal question", namely the interpretation of a treaty clause, and that there is no "legal question actually pending" between the parties. The Court was confronted with copious evidence of profound discrepancies of view among the States belonging to the Eastern Mediterranean regional organization, and among other States in the World Health Assembly, regarding the proposed transfer of the Eastern Mediterranean Regional Office from Alexandria. But those are disputes, occurring within the organs of an international organization, which do not concern the Court at least until they reach the stage at which they are projected into the treaty relationship between the World Health Organization and Egypt.

I am convinced that the Advisory Opinion is right when in paragraph 35, it goes beyond the strict and narrow formulation of the questions put to it by resolution WHA33.16 to investigate and consider the true legal question behind the request. As the Court rightly points out,

"if it is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction it must ascertain what are [p 179]the legal questions really in issue in questions formulated in a request",

for fear that

"a reply to questions of the kind posed in the present request may if incomplete, be not only ineffectual but actually misleading as to the legal rules applicable to the matter under consideration".

The broad consideration of all the pertinent legal issues involved, even if that would mean to go beyond the limited phraseology of the questions contained in the request, is consistent with the jurisprudence of the Court. The Permanent Court of International Justice already went so far as to admit the procedure of expanding the context of some submissions even in contentious cases. Indeed in Judgment 11, Interpretation of Judgments Nos. 7 and 8 (Factory at Chorz!!!ow), the Court stated:

"In so doing the Court does not consider itself as bound simply to reply 'yes' or 'no' to the propositions formulated in the submissions of the German Applications. It adopts this attitude because, for the purpose of the interpretation of a judgment it cannot be bound by formulae chosen by the Parties concerned, but must be able to take an unhampered decision." (P.C.I.J., Series A, No. 13, p. 15.)

On the next page it added:

"Construed in any other way, the Application in question would not satisfy the express conditions laid down by the above-mentioned article; and the Court, as it has already had occasion to observe in previous judgments, may within reasonable limits disregard the defects of form of documents placed before it."

Likewise in the Advisory Opinion on the Delimitation of the Polish-Czechoslovakian Frontier, the so-called Jaworzina case (P.C.I.J., Series B, No. 8, p. 50), the Permanent Court held:

"According to the actual language of the preamble of the request, the question upon which the Court is asked for an advisory opinion principally concerns the frontier in the region of Spisz, and the written and oral information supplied bears almost entirely on this point. Nevertheless the Court feels obliged to express an opinion upon the Polish case, and consequently upon the frontiers in the Duchy of Teschen and the territory of Orava, in so far as the delimitation of the frontier in those regions and in the territory of Spisz may be interdependent. In drafting the Request, the Council made a point of referring expressly to the conclusions of the respective cases submitted by the two parties, and the discussion which took place in the Council of the League of Nations, as well as the general terms in which the question itself is stated, appear to indicate that the opinion should embrace the whole range of the cases submitted."[p 180]

Again in the Advisory Opinion on Competence of the International Labour Organisation (P.C.I.J., Series B, Nos. 2 and 3, p. 59) the Permanent Court decided to restrict the meaning of the request for advisory opinion presented to it. It then stated:

"The words used imply that the 'other questions' are to be questions essentially of the same nature for the present purpose as that of the organisation and development of means of production; but such 'other questions' are not specified, and the Court does not undertake to say what they may be."

The International Court of Justice, in the Advisory Opinion on Admissibility of Hearings of Petitioners by the Committee on South West Africa (I.C.J. Reports 1956, p. 26), did not depart from this jurisprudence. It stated:

"It was in these circumstances that the question was submitted to the Court. While the question in terms refers to the grant of oral hearings by the Committee, the Court interprets it as meaning: whether it is legally open to the General Assembly to authorize the Committee to grant oral hearings to petitioners. The Court must therefore deal with the broader question as to whether it would be consistent with its previous Opinion of 11 July 1950 for the General Assembly to authorize the Committee on South West Africa to grant oral hearings to petitioners."

Moreover in the Advisory Opinion on Certain Expenses of the United Nations (I.C.J. Reports 1962. pp. 157 f.) the Court found:

"Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that at least three separate questions might arise in the interpretation of paragraph 2 of this Article. One question is that of identifying what are the 'expenses of the Organization'; a second question might concern apportionment by the General Assembly; while a third question might involve the interpretation of the phrase 'shall be borne by the Members'. It is the second and third questions which directly involve 'the financial obligations of the Members', but it is only the first question which is posed by the request for the advisory opinion. The question put to the Court has to do with a moment logically anterior to apportionment, just as a question of apportionment would be anterior to a question of Members' obligation to pay."

And the Court concluded:

"It has been asked to answer a specific question related to certain [p 181] identified expenditures which have actually been made, but the Court would not adequately discharge the obligation incumbent on it unless it examined in some detail various problems raised by the question which the General Assembly has asked." (Ibid., p. 158.)

***

Contrary to the assertion in some quarters, the WHO or indeed any international organization, has the right to remove its regional offices.

In the light of Articles 43,44,45 and 46 of the Constitution of the World Health Organization it seems indisputable that the Organization enjoys an unfettered right to decide on the location of its headquarters and the headquarters of its regional committees and regional offices. Indeed it would run counter to the actual texts of the majority of the constitutions or international organizations to deny the latter such right, including the right to transfer their headquarters and the sites of their organs if they so deem fit. On this point it is enough to recall Section 23 of the United Nations Headquarters Agreement, which gives to the Organization the unilateral right to decide on the permanence of its headquarters in New York, and Section 24, which provides:

"This agreement shall cease to be in force if the seat of the United Nations is removed from the territory of the United States, except for such provisions as may be applicable in connection with the orderly termination of the operations of the United Nations at its seat in the United States and the disposition of the property therein."

Indeed the Lake Success Agreement of 1947 neither contains any provision for denunciation nor lays down periods of notice for the termination of the treaty. If that is so with what - considering the huge interests involved in one side or the other — is the most important of headquarters agreements, it would be extraordinary to contend that a denunciation clause with a prescribed period of notice for termination of the treaty is indispensable in treaties between international organizations and host countries relating to the location of headquarters.
Moreover I do not believe that agreements of that kind enshrine an obligation on the part of the Organization to keep their offices operating in the territory of the host State. In the 1951 WHO-Egypt Agreement the obligations of the Organization are clearly spelled out in Sections 26 (privileges and immunities granted only in the interests of the organization), 31 (respect for the security of the Egyptian Government), 32 and 33 (co-operation for the settlement of local disputes), and 34 (settlement of disputes relating to the agreement). No provision exists according to which the Organization is bound to keep its office operating in Egypt. In fact, even if the possibility of transfer is disregarded it might happen that for different reasons the Organization would find it necessary to discontinue [p 182] the operation of its regional organ. And it seems that nothing in the 1951 Agreement would constitute a legal obstacle to a decision of such a kind.

Again on the matter of integration, issue may be joined with those who make too much of it. As one deals with the constitutional problems of the WHO underlying the question before the Court, attention should be paid to the so-called "integration" of the Alexandria Sanitary Bureau under Article 54 of the Constitution. Article 54 is mainly concerned with the Pan American Sanitary Organization, represented by the Pan American Sanitary Bureau and the Pan American Sanitary Conferences, which should be "in due course integrated with the Organization", as well as all other inter-governmental regional health organizations (emphasis supplied). The article adds that "this integration should be effected as soon as practicable through common action based on mutual consent of the competent authorities, expressed through the organizations concerned" (emphasis supplied). The Sanitary, Maritime and Quarantine Board of Egypt, or the Egyptian Quarantine Board, lost its inter-governmental] character on the conclusion of the Paris International Sanitary Convention of 31 October 1938, whose Article 1 stipulated:

"The Sanitary, Maritime and Quarantine Board of Egypt shall be abolished and its functions shall be performed by the Egyptian sanitary authorities in pursuance of the provisions of the International Sanitary Convention of 1926, as amended under the terms of Article 2 below. The transfer of services shall take place three months after the entry into force of the present Convention."

Appended to the Convention appeared a Declaration by the delegation of the Royal Egyptian Government accepting the new responsibilities including the engagement to retain, "in the capacity of Egyptian officials", foreign experts and foreign permanent officials.

Moreover, when the text of Article 54 was drafted during the New York 1946 International Health Assembly the main problem considered was the situation of the Pan American Sanitary Bureau. The only delegation to raise the question of the Alexandria Sanitary Bureau was the Egyptian delegation (see WHO, Official Records, No. 1, p. 24). Neither of the two alternative texts discussed included the word "integration" (ibid., Ann. 23, p. 73). This concept was resorted to by the Harmonizing Committee of 16 members and there were doubts about the real meaning of the word "integration". On the other hand, one of the most relevant resolutions concerning "integration" of the Alexandria Sanitary Bureau, namely EB3.R30 deals with the integration of functions only, and contains no reference to Article 54 of the Constitution. Therefore, although the process of absorption of the Alexandria Sanitary Bureau into the structure of the WHO and its transformation to the Eastern Mediterranean Regional Office was frequently referred to as "integration", I do not think that it [p 183] allows the conclusion that the status of the Alexandria Bureau is different from that of the other regional offices and that it should be treated in a distinct manner in the eventuality of transfer. The theory of the "predestination" of Alexandria for the role of the site of the EMRO is not altogether very convincing, since there were previous regional offices for the exchange of epidemiological information in other places, such as Tehran, Tangiers and Singapore. If that was the mark of "predestination", the Regional Office for South-East Asia should be in Singapore and not New Delhi, and the headquarters of the WHO itself should be in Paris, where the venerable "Office international d'Hygiène publique" was so active from 1907 until the outbreak of the Second World War.

Since the doctrine of "integration", individualizing the Bureau of Alexandria as a "unique" situation, has no bearing on the operative part of the Advisory Opinion, I was able to concur in its approval. The foregoing remarks are therefore addressed to setting forth my views concerning references in the reasoning to "integration under Article 54 of the Constitution".

***

It is undeniable that the Alexandria Sanitary Bureau played an important role in the history of international sanitary co-operation, especially in performing its duties as the Eastern Mediterranean Regional Office of the WHO since 1 July 1949. It is a long and rich history, which goes back to 1831. In 1843 a health council similar to the one at Constantinople was created in Egypt, which in 1852 inherited the attributions of the latter. This sesquicentennial body, by virtue of its experience and its situation at the crossroads of the traditional pilgrimages, may be proud of an impressive record of services rendered to the international community, since the old days when international health problems were confined to the common work in the fight against the age-old scourges of plague, cholera, yellow fever and smallpox. It is likewise beyond any doubt that Egypt has a flawless record as a host country. Furthermore, it is clear that severance of diplomatic relations with the host country in no way affects the functioning of an international organization or its organs, as the every-day routine work of the United Nations in New York abundantly proves, and as is provided in Article 82 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of Universal Character. Were it for the Court to decide whether or not the EMRO should be transferred, all these arguments would probably carry a lot of weight. But this is not its task. The advisability and desirability of the transfer of the office can only be decided by the World Health Assembly, which is empowered by Articles 43 and 44 of its Constitution to do so. [p 184]

It is in the World Health Assembly that these arguments should be put forward.

The Court has a different task. The World Health Assembly, by resolution WHA33.16 of 20 May 1980, put to the Court two questions relating to the hypothetical situation of a decision favourable to the transfer being taken in the future. This involves the interpretation of a treaty clause and the consequences of such an interpretation.

There is no doubt that Article 31 of the Vienna Convention on the Law of Treaties embodies the rules of general international law on the interpretation of treaties, especially the overriding rule of paragraph 1, according to which: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Of course the Vienna Convention does not apply to the Agreement before the Court, since it is not an agreement between States, but between a State and an international organization. But its provisions would apply inasmuch as they embody rules of international law to which the parties would be subject independently of the Convention (Art. 3 (b)). Already in the Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (I.C.J. Reports 1971, p. 47) the Court held: "The rules laid down by the Vienna Convention on the Law of Treaties .. . may in many respects be considered as a codification of existing customary law on the subject." And the rules of Article 31 are undoubtedly of that kind.

Therefore the work of the Court if it were confined to the narrow limits of the questions in the request could not but be the task of interpreting Section 37 of the 1951 Agreement in good faith in accordance with the ordinary meaning of its terms and in the light of the object and purpose of the treaty, taking into consideration the rules of paragraphs 2, 3 and 4 of Article 31, and the supplementary means of interpretation provided for in Article 32.

The first question before the Court referred specifically to the "negotiations" and "notice" provisions of Section 37. What exactly are those provisions? The "negotiations" referred to in Section 37 are those relating to the revision of the treaty ("The present Agreement may be revised at the request of either party. In this event the two parties shall consult each other concerning the modifications to be made in its provisions"). It is this process of consultation that is called "negotiations" in the second sentence of the proviso. Section 37 does not deal with any other kind of "negotiations". So what is in issue is the "revision" or modification of the treaty. And, furthermore, the final part of the provision states that it is in the case [p 185] of failure of such negotiations to result in an understanding within one year that the Agreement may be denounced by either party's giving two years' notice. The two years' notice is related to denunciation, and denunciation is allowed only upon the failure of the negotiations to result in an understanding within one year. This is the ordinary meaning of the words used in the text if interpreted in good faith and I cannot see how they could be interpreted otherwise. It seems evident that the intention to avoid a clear cut and individualized provision regulating denunciation was behind it. Denunciation is an important stage in the life and expiry of a treaty. It is not usual for a denunciation clause to come disguised under the mantle of a provision dealing with another matter.

The "travaux preparatoires" relating to the wording of Section 37 confirm such an interpretation. The formula of Section 37 is a standard text, which appears in a series of similar treaties, going back to an agreement between the Swiss Federal Council and the International Labour Organ-isation concerning the latter's legal status in Switzerland adopted and signed on 11 March 1946. It gave birth to a whole generation of agreements embodying the same form of words, including the Agreement concerning the legal status of the World Health Organization approved by the First World Health Assembly on 17 July 1948 and by the Swiss Federal Council on 21 August 1948. Indeed, one could go still further back in search of the roots of the wording of Section 37. The 1926 modus vivendi concluded between the League of Nations and Switzerland contained in Article XIV the following text:

"The above rules of the modus vivendi can only be modified by agreement between the organisations of the League of Nations and the Federal Political Department. If, however, an agreement cannot be reached, it shall always be open to the Federal Government or to the organisations of the League of Nations to denounce the whole or part of the rules of the modus vivendi. In this case, the rules mentioned in the denouncement shall remain in force for one year from the date of such denouncement." (League of Nations, Official Journal, 7th Year, No. 10, p. 1424.)

The wording of the International Labour Organisation-Switzerland Agreement, Article 30, and of the World Health Organization-Switzerland Agreement, Article 29, is identical to the wording of Section 37. The only difference is that in those Agreements, the sentences are separated into three paragraphs, while in Section 37 the whole proviso is incorporated into one. The United Nations-Swiss Federal Council Interim Agreement, signed at Berne on 11 June 1946 and at New York on 1 July 1946, which is still the host agreement for the Organization in Geneva (though euphemistically called "Provisional Arrangement"), in its Final Article repeats the wording of the 1926 modus vivendi, with a reduction of the period of notice to three months. [p 186]

Moreover, from what remains of the procès-verbaux of the negotiations which took place on 1, 2, 3 and 11 March 1946, leading to the conclusions of the Agreement between the Swiss Federal Council and the International Labour Organisation concerning its legal status in Switzerland, it seems clear that the Swiss Government, represented by Professor Guggenheim, was keen on the inclusion of a denunciation clause with six months' notice in the treaty. The International Labour Organisation, represented by Mr. Jenks, proposed the form of words which, with some changes, finally led to Article 30, and which was the seed of similar provisions in a whole series of host agreements. Apparently the Jenks formula was intended to avoid a denunciation clause proper and to replace it by the admission of revision by mutual agreement of the parties. As is clear from the origins of the wording of Section 37, the right of denunciation arises only on failure, at the end of one year of negotiations, to agree on revision. In the economy of this formula, which is repeated in a score of similar treaties, denunciation is irrevocably linked with revision.

Now, could the removal of the Eastern Mediterranean Regional Office from Alexandria be accomplished through the revision of the treaty? I believe that, from the very fact that the Agreement is a "host" agreement — and I submit it is — the transfer of the international regional organ from its present site, which is at the centre of the Agreements provisions, would be much more than a revision. It would indeed be tantamount to a termination of the agreement by depriving it of its object and purpose. Removal of the Office would, therefore, fall outside the scope of Section 37, which deals with the hypothesis of the continuation in force of a modified agreement, and not with the termination of the agreement by denunciation, unless in the specific case of the failure of negotiations for revision.

The fact is that, outside the context of a revision procedure, the treaty contains no general denunciation clause. On this specific point it can be equated with the treaties dealt with in Article 56 of the Vienna Convention on the Law of Treaties, namely, treaties which contain no provision regarding termination, denunciation or withdrawal, always on the understanding that Article 56 embodies rules of general international law within the meaning of Article 3 (b). Incidentally, Article 56 of the draft articles of the International Law Commission on treaties concluded between States and international organizations or between international organizations is identical with the text of the Vienna Convention.

I submit that it would be reasonable to regard the two conditions laid down in subparagraphs (a) and (b) of paragraph 1 of Article 56 as opening the door to denunciation even in the absence of a general clause providing for denunciation in the 1951 Agreement. Indeed, it would be extraordinary were the parties to a headquarters agreement to exclude the possibility of denunciation or withdrawal. In addition, the nature of the agreement, a [p 187] host agreement, constitutes a typical case of an implied right of denunciation, especially on the part of the Organization, as the International Law Commission expressly recognized in its commentaries on Article 56 of the draft articles on treaties concluded between States and international organizations or between international organizations. There is no doubt that headquarters agreements that do not contain a general denunciation clause, and they are the majority, cannot by their very nature exclude denunciation. If this is so, it can hardly be disputed that, under the rules of general international law enshrined in Article 56 of the Vienna Convention, the Agreement may be terminated by denunciation and that in that case a reasonable period of notice must be given. Paragraph 2 of Article 56, however, goes beyond the recognized rules of general international law, and was constructed by the International Law Commission under the aegis of the progressive development of international law. The twelve months' notice for denunciation or withdrawal is to be regarded only as an indication of what would be a reasonable period. And it is in this context that it is resorted to in paragraph 49 of the Advisory Opinion of the Court.

***

A controversial point in the proceedings was whether the 1951 Agreement is or is not a "host agreement". The concept of "host agreement" is probably broader than that of "headquarters agreement", since agreements might be signed with countries that play the role of hosts to tem-porary gatherings and conferences. But frequently the two expressions are taken as having the same meaning. What characterizes a "host agreement" is that it contains a series of provisions intended to regulate the relationship between the host State and the international organization regarding the permanent site of the organization or of one of its organs in the territory of the host State. Not many host agreements contain a form of words similar to the one in Section 2 of the (New York) United Nations Headquarters Agreement, which states: "The seat of the United Nations shall be the headquarters district." The United Nations-Switzerland Agreement, the host agreement for the second most important site of the Organization, contains nothing of the sort. Neither do the majority of host agreements. The 1951 Agreement, apart from the direct reference in Section 1 (v) to the "Secretariat and the Regional Office in Alexandria" and repeated mention of the Regional Director, deals with problems that go beyond an agreement or privileges, immunities and facilities. It deals in a very elaborate way with the status of representatives of members, who would not be going to Egypt unless to attend business of the Regional Office. Section 23 (2) (d) provides for the right of officials of the Organization to import free of duty furniture and effects "at the time of taking up their post in Egypt". That is a typical provision of a host agreement, because it relates to people allocated for a long stay in the territory of the host country and not to officials on temporary mission on Egyptian ter-[p 188] ritory. Section 30 (1) ensures the supply of electricity, water and gas and the removal of refuse, which have nothing to do with provisions dealing with privileges and immunities. Paragraph (2) of the same Section deals with "police supervision for the protection of the seat of the organization". These are provisions obviously intended to regulate relationships of a permanent character, different from those covering privileges, immunities and facilities exclusively, as, for instance those contained in the Agreement between Egypt and the WHO for the Provision of Services, of 25 August 1950. Of course, as happens with most host agreements, the 1951 Agreement includes the bulk of the usual provisions related to privileges, immunities and facilities, or the provisions that the Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947, in Section 1 (i) calls "standard clauses", namely clauses dealing with juridical personality, property, funds and assets, facilities in respect of communications, abuse of privileges, recognition of a United Nations laissez passer and the settlement of disputes. But the difference is that in host agreements those problems are considered in the light of the needs of the permanent presence of an international organization in the territory of the host State. The 1951 Agreement corresponds to the general line of a considerable number of host agreements concluded after the war, including the other host agreements for Regional Offices of the WHO. It is faithfully aligned on the model draft agreement between the WHO and a Host Country, which is given as Annex F to document EMR/EBWG/3. This model was developed in 1948 and established the format for all the host agreements concluded by the Organization. Moreover, throughout the negotiations with the Egyptian Government and the procedures of approval by the World Health Assembly and the Executive Board, it was always referred to as a "host agreement" (see Handbook of Resolutions and Decisions of the World Health Assembly and the Executive Board, Vol. I, p. 357 — Section 3 of the chapter on "Host Agreements" entitled "Host Agreement with the Government of Egypt").

A consequence of the fact that the 1951 Agreement is a host agreement is that the transfer of the EMRO from Alexandria would deprive it of its raison d'être and would therefore be tantamount to its termination, since it is a bilateral agreement.

Consequently, the transfer of the Regional Office cannot be achieved through the procedure of revision or modification of the treaty provisions which is dealt with in Section 37. If the Office is removed from Alexandria, the treaty will become void and empty of meaning.

I have submitted that Section 37 does not apply, because it deals pri-[p 189]marily with revision of the Agreement and that denunciation is allowed only if the attempt to revise the treaty fails to succeed within a year. But, on the other hand, host agreements are by their very nature eminently denounceable treaties, on account of the normal unfettered competence of international organizations to decide on the location of their offices, with a few exceptions such as the International Court of Justice, the International Monetary Fund and the World Bank, whose headquarters are laid down in their Constitutions. If it be admitted that the 1951 Agreement does not contain a denunciation clause proper — and I believe it does not — it will inevitably fall within the purview of Article 56 of the Vienna Convention on the Law of Treaties, as an expression of general international law. It is in the light of those general principles of the law of treaties that the problem of the removal of the Office and of the denunciation of the 1951 Agreement should be considered. Furthermore, it would be inadmissible to accept that the transfer could be undertaken without a certain reasonable time having been agreed upon between the parties for the orderly termination of the activities of the EMRO in Alexandria. That is why I fully support the Advisory Opinion's call upon the World Health Organization to enter into negotiations with Egypt, if ever the removal of the Office is decided by the World Health Assembly.

Paragraph 49 of the Advisory Opinion rightly emphasizes the mutual obligations of the Organization and Egypt to co-operate under the applicable legal principles and rules in the event of a decision of the Assembly in favour of the transfer. Consultations in good faith should take place (1) concerning the conditions and modalities according to which the transfer should be effected, once the WHA decides upon it; (2) regarding the various arrangements needed to carry out the transfer in an orderly manner and with a minimum of prejudice to the work of the Organization and the interests of Egypt; (3) concerning a reasonable period of notice for the termination of the contractual relationship.

I think the Advisory Opinion was wise to depart from the narrow and literal consideration of the clause of the agreement under discussion in order to deal in depth with the much more meaningful aspects of the general need for the protection of the interests of international organizations and host States in cases where the conventional relationship is to be terminated. Any such transfer should take into account the legitimate interests of both parties. The relationship between the host country and the international organization should always be one of full understanding and co-operation, in order to create that climate of stability and security which is indispensable to the steady enhancement of the important role of multilateral diplomacy.

(Signed) Jose Sette-Camara. [p190]

 


Dissenting opinion of judge Morozov

1. I voted against the Advisory Opinion because in substance it is an attempt to involve the Court to a greater or less extent in the handling of the serious political conflict existing in the Middle East between a number of States, and particularly States Members of the World Health Organi-zation, relating to the question of the transfer of its Regional Office for the Eastern Mediterranean from the territory of Egypt for political reasons.

On the other hand, even if we take into account the viewpoint of those who consider that the WHO request relates to a purely legal question (a viewpoint I do not share), the Advisory Opinion is a clear and inappropriate intervention in the question of the implementation of any possible decision to make such a transfer, which is incompatible with the fact that all aspects of that question, including the conditions and modalities of a transfer, belong, in accordance with the WHO Constitution, to the exclusive internal competence of the Organization itself. Accordingly I could not accept the pretext on which the Advisory Opinion is based, that the Court allegedly should give that Opinion because the request was submitted to it by the WHO with reference to Article 65 of the Statute.

2. Exceptional care is taken in the Advisory Opinion to avoid any reference to the root of the political conflict between the member States of the WHO, which is revealed in the course of the discussions in the World Health Assembly and in the documents presented to the Court in accor-dance with Article 66, paragraph 2, of its Statute. Reference to these will immediately show that the political conflict among the States members of the WHO does not only relate to the political dispute in the framework of the WHO, but is a part of a political dispute between States which has an extensive character. In this connection I would refer in particular to the passage in the Written Statement made to the Court by the Government of the Syrian Arab Republic in which that conflict is correctly characterized as follows:

"The cause of the increasingly tense and troubled situation obtaining in the Eastern Mediterranean Region, which has made it necessary to transfer the Regional Office, lies in the agreements signed at Camp David in the United States of America on 27 September 1978. These agreements have prevented the region from achieving the compre-hensive and true peace, called for by the Arab States and now finally recognized by the whole international community (see, for example, resolution No. 7/2 of 29 July 1980, Seventh Special Session of the United Nations General Assembly)." [p 191]

It should be recalled that the proposal for the transfer of the Eastern Mediterranean Regional Office was adopted by the votes of 19 States of the region concerned, the only vote against being that of Egypt.

3. The character of the political conflict existing between member States of the WHO, which is in particular the background to the political confrontation within the WHO, is of great importance in connection with the correct answer to the question of whether or not the Court should give an advisory opinion in the current case, taking into account Article 65, paragraph 1, of its Statute, which provides that:
"The Court may give advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request." (Emphasis added.)

Thus the Court has a discretionary right to give or not to give an advisory opinion even if the question is a legal one and presented by a duly authorized body.

In the situation of the present case the Court was not obliged to accept the request and to give an advisory opinion upon it.

The Statute of the Court conferred upon it freedom of choice, as mentioned above, to give an opinion or to refrain, specially for the purpose of avoiding the embarrassing situation with respect to the exercise of its judicial functions which would arise if, under the pretext of giving an advisory opinion, the Court were to be involved to a greater or less extent in the handling of a dispute between States which has a definite political character.

4. There are a number of points I would like to emphasize in connection with paragraph 33 of the Advisory Opinion, in which we may find the reasoning in the current case relating to the jurisprudence of the Court.

First, the Court recognizes that the situation in the present case is one "in which political considerations are prominent ...". In this connection it endeavours to justify its incorrect approach inter alia on the ground that

"it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution".

It should however be stressed that the WHO's request did not ask for any interpretation of the WHO Constitution, and was limited to a reference solely to interpretation of Section 37 of the 1951 Agreement. This formula, therefore, as well as the preceding sentence in the Advisory Opinion, which reads

"that jurisprudence establishes that if, as in the present case, a question submitted in a request is one that otherwise falls within the [p 123]normal exercise of its judicial process, the Court has not to deal with the motives which may have inspired the request"

should be considered as an additional justification of the alleged existence of the right, claimed by the Court in the present case, not to reply to the request submitted and instead reply to a question drafted by itself.

Secondly, reference is also made in justification of the disregard of the purely political character of the present case, to the cases concerning Conditions of Admission of States to Membership in the United Nations (1948), Competence of the General Assembly for the Admission of a State to the United Nations (1950) and Certain Expenses of the United Nations (1962).

It is regrettable that this unconvincing argument should now be advanced as justification for interference by the Court in political disputes between States, namely the incorrect approach to advisory proceedings demonstrated by the Court in the past in those three cases. I have no wish to re-open consideration of the substance of the advisory opinions mentioned above, but would merely stress that it was pointed out at the time that the Court should not have accepted those requests for advisory opinion, which related exclusively to political disputes between member States of the United Nations. The attempt to resurrect this same incorrect approach after 30 years is unacceptable.

Thirdly, it is however not without interest for the current case to observe that in each of these three cases the Court did finally give a reply to the request for opinion in the form in which it was submitted.

5. In the World Health Assembly only 53 delegations voted in favour of the request, 46 against, and there were 20 abstentions. Those who opposed the United States suggestion for involving the Court in the matter stated that they considered the request as a political manoeuvre with the purpose of delaying by any means settlement of the transfer of the Office, at least for two or three years. They demonstrated that the text of Section 37 of the Agreement of 1951 between the WHO and Egypt on the question of the privileges, immunities and facilities to be granted to the WHO as a whole, and particularly to its Eastern Mediterranean Office, is so clear that there is no need for any interpretation, and that the Agreement could not be applicable to the possible decision to transfer the Office.

Their opponents objected and stated that Section 37 of the Agreement should be applicable in the above-mentioned case.

6. The outcome is very well known. The request was submitted to the Court in the following terms:

"1. Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health 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? [p 193]
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 notice and termination of the Agreement?"

7. It is in vain that one may try to find in the Advisory Opinion a positive answer to Question 1, and it goes without saying that only after a positive answer to that question would it be logical to attempt to answer Question 2. Instead of replying to Question 1, the Advisory Opinion confines itself to a description of the existing differences of interpretation, and to the statement in paragraph 42 that:

" Whatever view may be held on the question whether the provisions of Section 37 are applicable to the case of a transfer of the Office from Egypt, the fact remains that certain legal principles and rules are applicable in the case of such a transfer." (Emphasis added.)

The last part of this sentence "... the fact remains that certain legal principles and rules are applicable in the case of such a transfer", even if it is combined with paragraphs 49, 50 and 51, does not mean that the Court gives an affirmative answer to Question 1 of the request. Paragraph 42 of the Advisory Opinion even criticizes severely the text of the original request. It is there said that "... the emphasis placed on Section 37 in the questions posed in the request distorts in some measure the general legal framework in which the true legal issues before the Court have to be resolved".

8. What legal miracle has happened in the course of the drafting of the greater part of the Advisory Opinion? Why is it that, while avoiding giving an affirmative answer to the question of applicability of Section 37 of the 1951 Agreement, the Advisory Opinion at the same time has in a very detailed way itself established the above-mentioned "legal principles and rules"?
This happened because the request which was really submitted to the Court by the WHO was put aside, and replaced by a new text of the request in the following terms:

"Under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected?"

But this question, as I have said, was not submitted by the WHO; it emerged as a result of very detailed research into numerous circumstances which are not related either to the Agreement of 25 March 1951 or to the legal provisions regulating the relationship between the WHO and Egypt in connection with the activities of the Eastern Mediterranean Regional Office. I consider that all this should be qualified as an attempt to give a legal appearance to an artificial basis on which paragraphs 48 and 49 of the Advisory Opinion, as well as the whole of the operative clause, were grounded. [p 194]

Furthermore, the statement that the Court "decides to comply with the request for advisory opinion", in the first paragraph of the operative part, as well as the reference to "the event specified in the request" in paragraph 2 of the operative part, does not change the substance of the situation. In reality what the Court is doing is to "comply with" its own drafting of the request.

9. I would like to spare the reader of my dissenting opinion any exhaustive analysis of all the arguments used in the Advisory Opinion for justification of such a more than unusual exercise of the judicial competence of the Court to give an advisory opinion. I therefore limit myself to a few remarks.

10. The clear substitution in the Advisory Opinion of a new question for the question put in the request was also explained by the wish of the Court "to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction", for which reason, it is said, "it must ascertain what are the legal questions really in issue in questions formulated in a request". The Advisory Opinion continues:

"a reply to questions of the kind posed in the present request may, if incomplete be not only ineffectual but actually misleading as to the legal rules applicable to the matter under consideration by the requesting Organization" (para. 35).

By way of justification of the substitution of one question for another, reference is made to the cases of Admissibility of Hearings of Petitioners by the Committee on South West Africa, I.C.J. Reports ¡956, and Certain Expenses of the United Nations, I.C.J. Reports 1962.

I do not wish, as I have said, to re-open the substance of the Advisory Opinion on the question of Certain Expenses of the United Nations (against which five Judges voted). I would merely say that I consider that that Opinion included some element of twisting of the facts and the law. However, for the purpose of my dissenting opinion in the current case I should repeat once more that in the above-mentioned case as well as the case of Admissibility of Hearings of Petitioners by the Committee on South West Africa the Court, after all the analysis it made in elaborating its Advisory Opinion did ultimately give its answers to the requests as they were submitted, without an attempt to replace the questions put in those requests with its own text.

11. Reference is made to two advisory opinions delivered by the Permanent Court of International Justice, of the League of Nations, in the years 1923 and 1926". This was done with the same purpose, that of justifying replacement of the request submitted to the Court by its own text of the question. We read in paragraph 35 that the Court has

"in some cases first to ascertain what were the legal questions really in issue in the questions posed in the request".

But in reality this sentence should be considered in the context of those[p 195] advisory opinions of 1923 and 1928. The former Court in those cases gave its answer, and did not put the texts of the requests aside as the present Court has done. It is hardly necessary to add that the substance of the matter on each of these two cases does not give any grounds for any analogy.

Also from the point of view of language, the expression "to ascertain . . .", used in the Advisory Opinion, does not mean the same as to "change" or "replace" one question by another or to disregard the question as it is. Of course there could not be any objection to the normal method of thinking about, and taking into consideration, all facts related to the question put in the request for opinion; but what has happened in the current case is something which ultimately suggests an intention by any means to avoid answering Question 1 in the request submitted by the WHO.

12. By way of justification for its substitution of a new question for those put in the request of the WHO, and the elaboration of what are referred to as certain "legal principles or rules", the Advisory Opinion includes particularly a detailed analysis of the activity of the Egyptian Alexandria Sanitary Bureau, which has no relation to the provisions of the 1951 Agreement, or to the question of possible transfer of the Office.

It could not be used as evidence that establishment of the Regional Office was, as is alleged, based not only on Article 44 of the Constitution of the WHO but also on Article 54 of that Constitution.

With the same purpose in view, the Advisory Opinion also includes an analysis of the activity of the United Nations and the various specialized agencies, and an attempt to elaborate some common general principles and rules of contemporary international law concerning the establishment of offices of these organizations, and the conditions and modalities to be observed in the case of transfers of offices of international organizations in general. All such research should be considered as having no relationship to Question 1 of the request of the WHO, even if one is ready to consider that question, in the form in which it was submitted, as a legal one.

13. It is necessary to add that from the very outset Question 1 in the WHO request was based (whether deliberately or not makes no difference) on an incorrect presumption. The question is worded as follows:

"Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health 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?"

The request was expressed in such specific terms as to incorporate an erroneous presumption, related to an intention to obtain from the Court only a positive answer, and at the same time to give a broad hint on the substance of the matter as to what that positive answer should be.

The error is that the WHO and Egypt in the text of the question were put[p 196] on the same legal footing, and the same legal rights attributed to them. But the WHO has, in accordance with its Constitution (Art. 44), the right to take the decision on the question of the establishment of its Regional Office or its transfer. The rights of Egypt on the question of location are limited to one vote along with the other States Members of the WHO, as well as one vote in the course of the discussion of any question related to the transfer of the Office.

The special procedure provided by Section 37 of the 1951 Agreement relates only to the question of revision of the character and scope of privileges, immunities and facilities granted by Egypt to the WHO and its Regional Office.

This is so clear that it is virtually recognized in the Advisory Opinion, when we find in it not an answer to Question 1, but to the question elaborated in the Advisory Opinion itself. It would be logical to put a full stop in the Advisory Opinion at this point, because the negative answer to Question 1 of the request excuses the Court from answering Question 2.

14. But instead of that, Question 2 in the Advisory Opinion followed the fate of Question 1, and in its turn was redrafted on the same lines, so as to permit the Court, contrary to the Agreement of 1951, to intervene by its advice in the purely administrative activity of the WHO in the event of the Organization deciding to transfer its Regional Office from the territory of Egypt.

15. It is important to stress that the key paragraphs of the Advisory Opinion (49 and 51) provide certain recommendations to the WHO dominated by the idea of the allegedly equal legal rights of the Organization and Egypt, at least as to the question of the conditions and modalities in accordance with which a transfer of the Regional Office from Egypt may be effected. But the same dominating idea of equal legal rights was also expressed, of course with a wider meaning, in the draft resolution submitted by the United States to the World Health Assembly and adopted by the votes of less than half the member States.

The whole collection of very detailed recommendations given in the Advisory Opinion to the WHO does not coincide with the Constitution of the WHO, which provides for an exclusive right of the Organization to take the decision relating to the establishment of its Regional Offices, and consequently to their transfer, including all steps for the implementation of the decision concerned. These recommendations do not afford an answer to the request of WHO as it is, and go beyond its framework; they are an attempt first to establish some legal principles and rules for the activity of international organizations on certain specific occasions, which these organizations could and should decide without any interference in their exclusive competence in accordance with their constitutional instruments, and secondly to use them ex post facto for the question of the conditions and modalities of transfer of the Eastern Mediterranean Regional Office from the territory of Egypt.[p 197]

16. As a matter of principle, the approach to advisory proceedings used in the present Advisory Opinion, when first the Court unavoidably becomes involved to a greater or less extent in the handling of a political dispute between States under the pretext of the request for advisory opinion, and secondly the Court arbitrarily replaces the request submitted to it with a text of its own, is incompatible with the judicial functions of the Court as defined in Chapter IV of its Statute.

(Signed) Platon Morozov.

 
     

 

 

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