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Report of Secretary-General (A-42-915-Add5) (13 September 1988)

A/42/915/Add.5
13 September 1988

ORIGINAL: ENGLISH

Forty-second session
Agenda item 136

REPORT OF THE COMMITTEE ON RELATIONS WITH THE HOST COUNTRY

Report of the Secretary-General

Addendum

1. On the latest occasion at which the General Assembly considered the dispute that had risen with the host country over its attempts to apply domestic legislation, the Anti-Terrorism Act of 1987 (ATA), in such a manner as to force closure of the Permanent Observer Mission of the Palestine Liberation Organization (PLO) to the United Nations in New York, the General Assembly adopted resolution 42/232 of 13 May 1988. By that resolution, the Secretary-General was once again requested to report to the General Assembly on developments regarding this matter.

2. At the time of adoption of the resolution, The United States had already initiated legal proceedings in a domestic court of the United States against the PLO (A/42/915/Add.4, paras. 6-8) in order to obtain judicial authorization to close the PLO Observer Mission as required by the ATA. On 8 June 1988, the United States District Court for the Southern District of New York heard oral arguments of counsel in the case United States of America v. The Palestine Liberation Organization, et al . At that hearing the United Nations was formally admitted as amicus curiae in the case. An amicus curiae memorandum of law and appendices had been submitted to the Court by and on behalf of the United Nations on 1 June 1988.

3. The Honourable Edmund L. Palmieri, United States District Judge, issued the District Court's decision on the case on 29 June 1988, which is annexed to the present report. By that decision, the Court rejected the authorization sought by the United States. The decision contains a number of points of interest to the United Nations, which may be briefly summarized as follows:

(a) The ATA and the Headquarters Agreement

The Court noted that The United States statutes and treaties are both the supreme law of the land and that the Constitution of the United States sets forth no order of precedence to differentiate between them. The Court held that only where a treaty is irreconcilable with a subsequently enacted statute and Congress has shown a clear intent to supersede the treaty does the statute take precedence.

In its present case, the Court found that the Headquarters Agreement by its language and the practice of the United States obligates the United States to allow the PLO transit, entry and access to the United Nations. The Court also stated that these rights could not be effectively utilized without the use of offices. Further, the ATA did not alter the United States obligations under the Headquarters Agreement because it failed to disclose the clear legislative intent necessary for the Court to act in contravention of the Headquarters Agreement. The court noted that the ATA does not even mention the Headquarters Agreement and that while the section of the ATA prohibiting the maintenance of an office applies “notwithstanding and provision of the law to the contrary,” it does not purport to apply notwithstanding any treaty.

(b) The duty to arbitrate

The Court rejected the argument that it should defer to the advisory opinion of the International Court of Justice regarding the United States obligation to arbitrate. In effect, the Court found that it could not direct the United States to arbitrate the dispute without exceeding the scope of its powers. The matter was one of international policy, an area in which courts were generally unable to participate. The ultimate decision as to how the United States should honour its treaty obligations was for the executive to decide. In addition, the Court emphasized that the dispute involved the interpretation of domestic law, the ATA, and that as a matter of domestic law the interpretation of international obligations such as the Headquarters Agreement and their possible reconciliation with the domestic law was for the courts to decide.

4. According to the relevant rules of the court, the United States had 60 days from the date of the decision in question within which to file an appeal. On 29 August 1988 the United States Department of Justice announced that the United States had decided not to appeal the decision of the District Court.

5. The decision by the United States not to appeal was welcomed by the Secretary-General. The dispute between the United Nations and its host country concerning the PLO Observer Mission has thus come to an end.

2/ Official Records of the General Assembly, Forty-second Session, Supplement

No. 26 (A/42/26 and Corr.1).

RECORDED VOTE ON RESOLUTION 42/210 B: 145-1-0 (Negative vote was Israel. The United States announced that it was not participating in the vote.)