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The Arafat Visa Affair: Exceeding The Bounds of Host State Discretion

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
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Extract

Pacta sunt servanda

The U.S. refusal to permit Yasir Arafat, Chairman of the Palestine Liberation Organization, to attend the 43d annual meeting of the General Assembly in New York was almost universally condemned as a violation of international law. Because Arafat publicly complied, on December 14, 1988, with the conditions the United States had long prescribed as prerequisite for direct contacts with the PLO, many have tended retroactively to validate the refusal to grant the visa, as a pragmatic and legitimate technique of diplomatic suasion. Consequently, it is all the more urgent that the record of international legal violation be confirmed, lest the refusal be cited, in the idiosyncratic fashion of international law, as precedent for future violations. Such a development would hasten the deterioration of the regime of restraints on the discretion of host states and reduce the effectiveness of resident international organizations.

Type
Editorial Comments
Information
American Journal of International Law , Volume 83 , Issue 3 , July 1989 , pp. 519 - 527
Copyright
Copyright © American Society of International Law 1989

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References

1 See U.S. Denies Arafat Entry for Speech to Session of U.N., N.Y. Times, Nov. 27, 1988, §1, at 1, col. 6; U.S. Gets Deadline from U.N. on Barring Arafat, N.Y. Times, Dec. 1, 1988, at A6, col. 1; U.S. Declines to Reverse Decision on Arafat, N.Y. Times, Dec. 2, 1988, at A10, col. 1.

2 See U.S. Gets Deadline from U.N. on Barring Arafat, supra note 1; U.S. Declines to Reverse Decision on Arafat, supra note 1.

3 See Statement by Arafat on Peace in Mideast, N.Y. Times, Dec. 15, 1988, at A19, col. 5; see also U.S. Agrees to Talks with P.L.O., Saying Arafat Accepts Israel and Renounces All Terrorism, id. at A1, col. 6.

4 For elaboration of positions endorsing Secretary Shultz’s denial, see U.N. Welcome, New Republic, Dec. 19, 1988, at 5–6.

5 See M. S. McDougal & W. M. Reisman, International Law In Contemporary Perspective 159 (1981).

6 The Palestine Liberation Organization (PLO) is “an umbrella organization for several Arab groups dedicated to the recovery of Palestine from the state of Israel and the return of refugees from the area to their homeland through diplomatic, military, and terrorist means.” Random House Dictionary of the English Language 1397 (2d ed. 1987).

7 GA Res. 3237, 29 UN GAOR Supp. (No. 31) at 4, UN Doc. A/9631 (1974).

8 There are signs that, prior to the application for a visa, the PLO had made inquiries of the United States and received some indications that a request would not be rejected. An indication otherwise would have permitted the PLO Chairman to refrain from requesting a visa, saving face for himself and his organization and minimizing damage to the reputation of the United States as the host country.

9 Statement by the Legal Counsel [Carl-August Fleischhauer] concerning the Determination by the Secretary of State of the United States on the visa application of Mr. Yasser Arafat (Nov. 28, 1988), UN Doc. A/C.6/43/7 (1988) [hereinafter Statement by the Legal Counsel].

10 Id. at 1-2.

11 Agreement Regarding the Headquarters of the United Nations, United Nations-United States, June 26, 1947, 61 Stat. 758, TIAS No. 1676, 11 UNTS 11, reprinted in 22 U.S.C. §287 note (1982).

12 Statement by the Legal Counsel, supra note 9.

13 United States Department of State, Statement on the Visa Application of Yassir Arafat, reprinted in 83 AJIL 253 (1989).

14 Id. at 253-54.

15 Statement by Patricia M. Byrne, United States Representative to the Committee on Relations with the Host Country, Nov. 28, 1988, Dep’t of State Press Release USUN 154-(88) (Nov. 28, 1988) [hereinafter Byrne Statement].

16 Id.

17 Id.

18 See supra note 13.

19 See supra note 15.

20 Headquarters Agreement, supra note 11.

21 Id.

22 Id.

23 Joint Resolution of Aug. 4, 1947, Pub. L. No. 80-357, 61 Stat. 756 (1547) (22 U.S.C. §287 note) (1982).

24 Id. at 767.

25 Because Pub. L. No. 80-357 is not inconsistent with the Headquarters Agreement, the question of its international legal force does not arise.

26 Statement by the Legal Counsel, supra note 9.

27 Byrne Statement, supra note 15.

28 Id.

29 Statement by the Legal Counsel, supra note 9.

30 The Women’s International Democratic Federation, which had been designated a nongovernmental organization in a consultative relationship with the Economic and Social Council in Category B, by virtue of Resolution 288 (X) of Feb. 27, 1950, designated Margarette Rae Lucock as its representative to attend the seventh session of the Commission on the Status of Women. The World Federation of Trade Unions, a nongovernmental organization in Category A, had designated Jan Dessau to attend the same meeting. See generally 1953 UN Y.B. 501, UN Sales No. 1954.1.15.

31 15 UN ESCOR (679th mtg.) at 37, UN Doc. E/SR.679 (1953).

32 15 UN ESCOR Annexes (Agenda Item 34) at 2, UN Doc. E/2397 (1953).

33 Id. at 3.

34 15 UN ESCOR (686th mtg.) at 83, UN Doc. E/SR.686 (1953).

35 15 UN ESCOR (687th mtg.) at 89, UN Doc. E/SR.687 (1953).

36 16 UN ESCOR (743d mtg.) at 249–56, UN Doc. E/SR.743 (1953); 16 UN ESCOR (745th mtg.) at 267–75, UN Doc. E/SR.745 (1953). For the report of the Secretary-General, see 16 UN ESCOR Annexes (Agenda Item 33) at 1, UN Doc. E/2492 (1953); id. at 2, UN Doc. E/2501 (1953) (oral statement subsequently distributed as a document).

37 Annual Report of the Secretary-General on the Work of the Organization, 9 UN GAOR Supp. (No. 1) at 101, UN Doc. A/2663 (1954).

38 Id.

39 Id.

40 Id.

41 Id.

42 ESC Res. 509, 16 UN ESCOR Supp. (No. 1) at 19, UN Doc. E/2508 (1953), reprinted in 1953 UN Y.B., supra note 30, at 503.

43 Since the ICJ’s decision on jurisdiction and admissibility in the Nicaragua case, the U.S. position appears to have been that such questions are not susceptible to third-party decision, raising questions about the continuing effectiveness of the 1954 compromise. See United States: Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, 24 ILM 246 (1985); Observations on the International Court of Justice’s November 26, 1984 Judgment on Jurisdiction and Admissibility in the Case of Nicaragua v. United States of America, id. at 249. Although the reach of the procedural arrangements may now be in contention, the customary exception itself, the substantive acknowledgment of the right of the host state to act to protect itself in appropriate fashion, does not appear to have been qualified or withdrawn.

44 See text accompanying note 28 supra.

45 Byrne Statement, supra note 15.