Imagini ale paginilor
PDF
ePub

the Pan American Sanitary Conference meeting in Washington from 2 to 4 December 1902. It was regulated by successive Pan American (or inter-American) sanitary conferences meeting approximately every four years. These conferences adopted detailed conventions and codes governing the functioning of the Bureau as the executive arm of the Pan American Sanitary Organization. In 1927, a resolution of the Eighth Pan American Sanitary Conference provided that the Bureau should act as a regional bureau of the Office International d'Hygiène Publique, and it so functioned through the Second World War.

With the creation of the World Health Organization interest was expressed from many quarters in integrating the Pan American Sanitary Organization into the WHO. But, . . . there were differences of opinion on how this should be done. At the preparatory commission meeting in Paris in March 1946 two distinct schools of thought emerged. On the one hand there were those who wanted immediate and complete absorption; on the other hand there were those who wished to preserve a separate identity for the preexisting and highly successful Pan American institution. As might be expected, a compromise was reached at the World Health Conference in New York the following July. As Dr. Neville M. Goodman describes it in his treatise, International Health Organizations and Their Work, at page 250, the compromise was reached "by substituting that 'blessed word' 'integration'-of whose meaning no one was very clear-for either absorption or continued independence". I shall return to this concept of integration in my comments on the first question posed by the Court.

The principle of integration was prescribed by Article 54 of the Constitution of the World Health Organization, as the Court is aware. But the principle also had to be accepted by the Pan American Sanitary Organization and an implementing agreement had to be worked out. The position of the Pan American Sanitary Organization was that a formal agreement should not be concluded until two-thirds of its member States had ratified the Constitution of the World Health Organization. This condition was satisfied on 22 April 1949. The agreement between the two international organizations was signed on 24 May and became effective on 1 July of the same year. (Basic Documents of the Pan American Health Organization, pp. 43-46.) Article 2 of the Agreement provides:

"The Pan American Sanitary Conference, through the Directing Council of the Pan American Sanitary Organization and the Pan American Sanitary Bureau, shall serve respectively as the Regional Committee and the Regional Office of the World Health Organization for the western hemisphere, within the provisions of the Constitution of the World Health Organization. In deference to tradition, both Organizations shall retain their respective names, to which shall be added 'Regional Committee of the World Health Organization' and 'Regional Office of the World Health Organization' respectively."

On the basis of this history I should like to make these observations. First, the Office in Washington is not a creation of the World Health Organization, nor is it a creation of the United States.

Rather it began as an inter-American institution and retains its identity as a member of the family of inter-American institutions to the present day. Indeed, the year after the Agreement between the World Health Organization and the Pan American Sanitary Organization was signed, the Pan American Sanitary Organization also concluded an agreement with the Organization of American States. That agreement recognizes both that the Pan American Sanitary Organization is an inter-American specialized organization and that it acts as a regional organization of the World Health Organization in the western hemisphere (Articles I and II of the Agreement between the Council of the Organization of American States and the Directing Council of the Pan American Health Organization, Basic Documents of the Pan American Health Organization, p. 48.)

Second, the choice of Washington as the headquarters site was made in 1902 in Washington by agreement among several American States. The document expressing that agreement described the choice as "permanent". Should the Pan American Organization [sic] (which in 1958 was renamed the Pan American Health Organization, or PAHO) wish to change that choice, an appropriate decision would have to be taken by PAHO itself. A unilateral decision by the WHO could not remove the PAHO Office from Washington; indeed given the integration provision of Article 54 of the WHO Constitution, the consummation of integration through the Agreement between the WHO and the Pan American Sanitary Organization, and the prohibition in Article 44 of the WHO Constitution against more than one regional organization in each area, it seems that any effort by the WHO to relocate the Office or establish a new office without the consent of PAHO would be inconsistent not only with the Agreement between the WHO and the Pan American Sanitary Organization but also with the Constitution of the WHO.

Third, the absence of an agreement between the WHO and the United States on the model of the Host Agreement of 1951 between the World Health Organization and Egypt, or the other Host Agreements, is no accident or oversight. Indeed the absence of such an agreement tends further to support the position that the WHO-Egyptian Agreement of 1951 is a true headquarters agreement intended to govern the selection and maintenance of the site of the Office. The WHO and the United States recognized that they were not the proper parties for an agreement governing the headquarters of an institution of the inter-American family and thus did not conclude an agreement to this effect. By way of contrast, since the Alexandria Bureau was an organization under the immediate authority of the Egyptian Government, the WHO and Egypt properly concluded a bilateral headquarters agreement regulating all aspects of their relationship, including the site of the Regional Office.

[blocks in formation]

In the passage . . from Dr. [Neville] Goodman's book [International Health Organization and Their Work], . . . integration was described as that blessed word of whose meaning no one was very clear. In regard to the Pan American Sanitary Organization,

which in the quote that follows he describes as PASO, and the Pan American Sanitary Bureau, which he refers to as the PASB, he says the following:

"It is clear that complete integration has not yet been effected, since the PASB retains an independent existence qua PASB and may carry out separate functions and programmes provided they are separately financed and consistent with the WHO programmes in the western hemisphere. Since the PASO is a statutory body, set up by treaty, and since on the one hand certain American republics have not yet ratified the WHO Constitution, while other areas in America, such as Canada and certain colonial territories, are not members of the PASB, complete fusionwhich is presumably the most perfect form of integration, as the tiger might have said to the young lady from Riga-is not yet possible, and integration has been carried as far as present circumstances permit." (This is at p. 151.)

I.C.J., Pleadings, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, pp. 290-293.

In regard to the evolution of the Pan American Sanitary Bureau into the Pan American Health Organization, see Whiteman, Digest of International Law, Vol. 13 (1968), pp. 299-300. And, see, Dept. of State Bulletin, Vol. XVI, Nos. 392, Jan. 5, 1947, pp. 26-27, and 409, May 4, 1947, pp. 809-811, and Vol. XVII, No. 429, Sept. 21, 1947, p. 589.

B. PRIVILEGES AND IMMUNITIES

Immunity From Suit

Sequestration Order: United Nations Joint Staff Pension Fund

Shamsee v. Shamsee, 428 N.Y.S.2d 33 (N.Y.App. Div. (1980)), involved a sequestration order issued against moneys on deposit with the United Nations Joint Staff Pension Fund in connection with an action for divorce. On December 30, 1976, Justice Joseph S. Calabretta, Supreme Court, Queens County, Special Term, entered the order in execution of an order for support that had been entered in favor of the plaintiff wife on June 6, 1976. The sequestration order also followed by two weeks an order barring the defendant husband from transferring out of New York State, or to any third party, any assets in which he had an interest. (On October 1, 1976, the defendant had retired from his position at the United Nations and returned to Pakistan, allegedly removing all of the family assets except his interest in the Pension Fund.)

Before the 1976 support order had been issued, Mrs. Shamsee had sued for divorce or separation, and Mr. Shamsee counter-claimed unsuccessfully that their 20-year marriage was invalid. The Court rejected his argument that the Muslim qadi, who had certified in a

duly witnessed marriage certificate filed with the City Clerk that he had performed the marriage, had himself not been registered with the City Clerk as required by New York law. See, Shamsee v. Shamsee, 51 A.D. 2d 1028, 381 N.Y.S. 2d 127 (N.Y. App. Div. 1976).

Afterwards, on November 15, 1977, Mr. Shamsee reportedly stated before the Court of the XVII Civil Judge in Karachi, Pakistan, that he had divorced Mrs. Shamsee, and had placed a photocopy of the "divorce deed" of record. Following a statutory 90-day period, the Court reportedly on February 6, 1978 entered an order making the divorce pronounced by Mr. Shamsee effective.

The Pension Fund Secretary declined to comply with Special Term's sequestration order. The Secretary claimed that under Fund regulations he had no authority to sequester assets on the plaintiff's behalf and, further, that the Fund and its Secretary in his official capacity were immune from legal process under the International Organizations Immunities Act, 22 U.S.C. 288 et seq., and the Convention on the Privileges and Immunities of the United Nations, done at New York, February 13, 1946; TIAS 6900; 21 UST 1418, entered into force for the United States, April 29, 1970.

On April 21, 1978, Mrs. Shamsee applied to the United Nations Administrative Tribunal for review and reversal of the determination by the Standing Committee of the United Nations Joint Staff Pension Fund that had confirmed the Fund Secretary's decision to pay retirement benefits to Mr. Shamsee (i.e., without deduction of the court-ordered support payments). (On May 25, 1979, the Administrative Tribunal rejected her application for lack of standing. Shamsee v. The United Nations Joint Staff Pension Board, Judgments U.N. Admin. Trib. No. 245, U.N. Doc. AT/DEC/245.)

Mrs. Shamsee continued to seek relief from the Supreme Court, Special Term, Queens County. In a decision on May 24, 1978, and an order and judgment entered on that decision dated June 6, 1978, the Court held the Pension Fund and its Secretary to be in contempt for failure to obey the sequestration order, held that they could purge themselves of contempt by paying to the plaintiff, as receiver, any assets claimed by the defendant from the United Nations Joint Staff Pension Fund, and ordered that, in the event of failure to purge, a warrant should issue for the Secretary's arrest.

Following its normal procedure in such cases, the General Legal Division, Office of Legal Affairs, of the United Nations wrote to the Clerk of the Court on June 8, 1978, advising that the Fund and its Secretary were immune from legal process by virtue of the Convention on the Privileges and Immunities of the United Nations, ante. On September 20, 1978, the Sheriff of the City of New York, acting pursuant to a commitment order dated July 31, 1978 and a contempt order dated September 8, 1978, both issued by Justice Calabretta,

commanded the Fund Secretary to appear before the court on October 19, 1978, or suffer arrest.

After consultations between the Departments of State and Justice, an Assistant United States Attorney appeared in court on that date on behalf of the Fund and the Secretary, and, asserting their immunity, moved for an order to show cause why the outstanding sequestration order and arrest warrant should not be vacated.

The United States submitted two affidavits to the Court. The first, by Erik Suy, Under-Secretary-General and Legal Counsel of the United Nations, attested that the Fund was an organ of the United Nations, regulated by the General Assembly, that its assets, even though held separately, were United Nations property, immune from process by treaty and by statute, and that the Fund's Secretary, appointed by the United Nations Secretary-General, was likewise immune for acts performed in his official capacity. In the second affidavit an official of the United States Mission to the United Nations stated that the Pension Fund's Secretary had been duly notified as a professional employee of the United Nations Secretariat, employed by the United Nations as Secretary of the United Nations Joint Staff Pension Board, and was thus entitled to immunity for official acts. Pending hearing and determination of the motion to vacate, Special Term stayed the Secretary's arrest.

On February 20, 1979, Special Term, finding “no adequate proof" that a Department of State official with proper authority had actually determined the merits of the claim of immunity, denied the motion to vacate without prejudice to a renewal, "until such time as the United States Department of State has decided the claim of immunity". The Court also continued the stay of arrest. In his ruling, Justice Calabretta noted that he had presided at the matrimonial action [between the plaintiff and the defendant] and that, during the two-week trial period the defendant, who was then employed by the United Nations, had stated under oath "that he had no intention of leaving this court's jurisdiction or his employment with the United Nations", an issue specifically raised by the plaintiff. "Regrettably", the Court said, it had not heeded the plaintiff's request on several occasions for issuance of sequestration orders against the defendant's assets, at that time within its jurisdiction, and had given full credence to the defendant's statement. Time, Justice Calabretta added, had proven the plaintiff to be correct, since the defendant had not only retired from his United Nations employment and returned to Pakistan, but had taken with him all of his assets except for an interest in the Pension Fund.

Shamsee v. Shamsee, Index No. 5800/1975 (Sup. Ct., Queens Co., N.Y., Feb. 20, 1979); also to be found at Dept. of State File No. P85 0068-0280.

« ÎnapoiContinuă »