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Published online by Cambridge University Press: 27 February 2017
* [Reproduced from the text provided By the U.S. District Court for the Southern District of New York. A collection of documents concerning this controversy appears at 27 I.L.M. 712 (1988).]
* The United Nations and the Association of the Bar of the City of New York both requested leave to appear as amici curiae. The court finds that both amici have an adequate interest in the litigation, even at the district court level, and that their participation is desirable. Leave to file is therefore granted. See S.& E.D.N.Y. Gen. R. 8; cf. Fed. R. App. P. 29; S. Ct. R. Prac. 36. 3. It should be added that Mr. Carl-August Fleischauer, Under-Secretary-General and Legal Counsel of the United Nations, was permitted to address the court at the outset of the arguments of counsel that took place on June 8, 1988.
1 Title X of the Foreign Relations Authorization Act for Fiscal Years 1988-89. Pub. L. 100-204, §§ 1001-1005, 101 Stat. 1331, 1406-07; 22 U.S.C.A. §§ 5201-5203 (West Supp. 1988). It is attached hereto as Appendix A.
2 G.A. Res. 169 (II), 11 U.N.T.S. 11, No.147 (1947). 61 Stat. 756, T.I.A.S. No. 1676, authorized by S.J. Res. 144, 80th Cong., 1st Sess., Pub. L. 80-357, set out in 22 U.S.C. § 287 note (1982). We refer to the Headquarters Agreement as a treaty, since we are not concerned here with making a distinction among different forms of international agreement. The applicable law implicates all forms, including the Headquarters Agreement. Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982).
3 H. Con. Res. 75, 79th Cong., 1st Sess., 59 Stat. 848 (1945).
4 The Democratic People's Republic of Korea, the Holy See, Monaco, the Republic of Korea, San Marino and Switzerland. Permanent Missions No.262 at 270-77.
5 Asian-African Legal Consultative Committee, the Council for Mutual Assistance, the European Economic Community, the League of Arab States, the Organization of African Unity, and the Islamic Conference. Permanent Missions No.262 at 278-84.
6 The PLO and the South West African Peoples’Organizatio (SWAPO). Permanent Missions No.262 at 285-86.
7 Letter from Sec. of State George P.Shultz to Rep.Jack Kemp(October 16, 1986)(“the PLO Observer Mission …is in no sense accredited to the United States.“), reprinted in 133 Cong. Rec. E 1, 635-36 (daily ed. April 29, 1987); accord 1 Restatement (Third) Foreign Relations Law of the United States § 202, Reporters’ Note 6 at 84 (1988).
8 Without accreditation, no diplomatic immunity ensues.Cf.United States v. Kostadinov, 734 F.2d 905, 907, 911-13 (2d Cir. 1984), cert. denied. 469 U.S. 881 (1985).
9 G.A. Res. 3237, 29 U.N. Gaor Supp. 31 (Agenda Item 108) 4, U.N. DOC. A/9631 (1974).
10 Ibid.; see also G.A. Res. 3236 and 3210, 29 U.N.Gaor Supp. 31 (Agenda Item 108) 3 & 4, U.N. Doc. A/9631 (1974).
11 E.g. 133 Cong. Rec. E 1, 635( daily ed. April 29, 1987) (letter from Rep. Jack Kemp to Sec.of State George P.Shultz (dated October 16, 1986)).
12 Anti-PLO Terrorism Act of 1987, H.R. 2211, 100th Cong., 1st Sess., introduced in 133 Cong. Rec. E 1, 635 (daily ed. April 29, 1987). Antiterrorism Act of 1987. S. 1203 and H.R. 2548, 100th Cong., 1st Sess., introduced in 133 Cong. Rec. S 6, 448 (daily ed. May 14, 1987) and. H 4, 047 (daily ed. May 28, 1987). Terrorist Organization Exclusion Act of 1987, H.R. 2587, 100th Cong., 1st Sess., introduced in 133 Cong. Rec. H 4, 198 (daily ed. June 3, 1987).
13 The ATA, known as the Grassley Amendment after its sponsor Senator Grassley of Iowa, was added to the omnibus foreign relations spending bill on the floor of the Senate on October 8, 1987, despite the objections of several Senators. See 133 Cong. Rec. S 13, 855 (daily ed. Oct. 8, 1987) (statement of Sen. Kassebaum) (“We do have hearings scheduled in the Foreign Relations Committee … [and] it is important for us to have a hearing to explore the ramifications of the issues….”); id., S 13, 852 (statement of Sen. Bingaman)(“We need to further explore the issues raised by this amendment. It is an amendment that has not had any hearings, has not been considered in committee, and one that raises very serious issues of constitutional rights….”).
The House version of the spending bill contained no equivalent provision, and the ATA was only briefly discussed during a joint conference which covered the entire spending bill. The House conferees rejected, 8-11, an exemption for the Mission, after which they acceded to the Senate's version. 133 Cong. Rec. S 18, 193, 14 (daily ed. December 16, 1987). § see 133 id. S 18, 186, S 18, 189 (statements of Sen. Helms); see also H.R. Conf. Rep. No. 475, 100th Cong., 1st Sess., 170-71 (1987).
14 Pub. L. 100-204, Title X, § 1002(a), 101 Stat. 1331, 1407, set out in 22 U.S.C.A. § 5201 note (West Supp. 1988).
15 Two of the original six individual defendants were not served, and the action against them has been dismissed on consent without prejudice. Fed. R. Civ. P. 41(a)(i).
16 Mansour is also a plaintiff in the related case decided today. Mendelsohn v. Meese. 88 Civ. 2005 (S.D.N.Y. June 29, 1988)(filed herewith). The court there addresses his claim that the ATA is an unconstitutional Bill of Attainder. See also Mendelsohn v. Meese, (S.D.N.Y. April 12, 1988) (denying preliminary injunctive relief).
17 S.J. Res. 144, 61 Stat. 756 (22 U.S.C. § 287 note); see n.2, supra. See also 1 Foreign Relations of the United states 1947 42-46 (1973).
18 The United Nations has explicitly refrained from becoming a party to this litigation. The International Court of Justice makes a persuasive statement that the proceedings before this court “cannot be an *agreed mode of settlement* within the meaning of section 21 of the Headquarters Agreement. The purpose of these proceedings is to enforce the Anti-Terrorism Act of 1987; it is not directed to settling the [alleged] dispute, concerning the application of the Headquarters Agreement.” U.N. V. U.S., supra. 1988 I.C.J. No. 77 56, slip op. at 23.
19 The Federal Arbitration Act itself, 9 U.S.C. §§ 1-14 (1982), is applicable only to “a written agreement evidencing a transaction involving commerce.” Id., § 2; Bernhardt v. Polyaraphic Co. of America. 350 U.S. 198, 200-01 (1956).
20 The same is true of the suggestion of amicus, the Association of the Bar of the City of New York, that this court decline to exercise its equity jurisdiction before an arbitral tribunal has been convened. By doing so, the court could thereby place the executive department in an awkward position, leaving the impression that the court, rather than the executive, is making the determination of this issue of foreign policy. The court should not do by indirection what it cannot do directly.
21 It is important to note that we may not inquire into the executive's reasons for refraining from arbitration, and in fact those reasons are not before us. See Press Conference, Assistant Attorney General Charles Cooper, 16 (March 11, 1988) (“I would not describe any of the deliberations that went into that decision.”); see also Letter of Assistant Attorney General John R. Bolton to Judge Edmund L. Palmieri (May 12, 1988) (docketed at the request of government counsel in 88 Civ. 1962 and 88 Civ. 2005) (“ arbitration would not be appropriate or timely”).
22 The Political question doctrine is inapplicable to the court's duty to interpret the Headquarters Agreement and the ATA. Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 (1986). We are interpreting the Agreement, but are unwilling to expand the reach of its arbitration clause to a point which would be inconsistent with the limitations placed upon us by the Constitution.
23 Section 12 requires that the provisions of Section 11 be applicable “ irrespective of the relations existing between the Governments of the persons referred to in that Section and the Government of the United States.” 61 Stat. at 761 (22 U.S.C. § 287 note).
Section 13 limits the applicability of the United States laws and regulations regarding the entry and residence of aliens, when applied to those affiliated with the United Nations by virtue of Section 11. Id. at 761-62 (22 U.S.C. § 287 note).
24 This letter was reproduced as item 33 of the Compendium submitted by the parties to the court. See also Letter from Sec. of State George P. Shultz to Sens. Robert J. Dole, Charles E. Grassley, Claiborne Pell and Rep. Jack F. Kemp (July 31, 1987) (“this would be seen as a violation of a U.S. treaty obligation“); Letter from Sec. Shultz to Sen. Dole (January 29, 1987), reprinted in. 133 Cong. Rec. 6, 449 (daily ed. May 14, 1987) (“while we are therefore under an obligation to permit PLO Observer Mission Personnel to enter and remain in the United States to carry out their official functions at U.N. headquarters, we retain the right to deny entry to, or expel, any individual PLO representative directly implicated in terrorist acts“); Letter from Sec. Shultz to Rep. Kemp (November 12, 1986), reprinted in. 133 Cong. Rec. E 1, 635, 1, 636 (daily ed. April 29, 1987)(same language).
25 This court has no information concerning the nature or content of these consultations, beyond the fact that the Department of Justice and the Department of State both appear to support current efforts to repeal the ATA.See H.R. 4078, 100th Cong., 2d Sess., introduced in 134 Cong. Rec. H 696 (daily ed. March 3, 1988) (statement of Rep. Crockett); Letter from Acting Assist. Atty. Gen. Thomas M. Boyd to Rep. Dante B. Fascell (May 10, 1988) (expressing reservations about H.R. 4078, but supporting it, with modifications); Letter from Assist. Sec. of State J. Edward Fox to Rep. Fascell (April 29, 1988)(same).
26 See Letter from Vernon A. Walters, U.S. Ambassador to the U.N., to U.N. Secretary General Javier Perez de Cuellar (October 27, 1987); Letter from Herbert S. Okun to Secretary General Perez de Cuellar (January 5, 1988).
27 In addition, the U.N. General Assembly has, on several occasions, reaffirmed its position that the PLO Mission is covered by the provisions of the Headquarters Agreement. G.A. Res. 42/230(Agenda item 136)(March 23, 1988); G.A. Res. 42/229A (Agenda item 136) (March 2, 1988); see also G.A. Res. 42/232 (Agenda item 136)(May 18, 1988).
28 133 Cong. Rec. S 18, 185-86 (daily ed. December 16, 1987).
29 See pp. 23-25 & nn.24 & 25, supra.See also Transcript of Joint Conference on H.R. 1777, p. 208 (December 3, 1987)(statement of State Department representative Jamie Selby: “it is a legal obligation based on practice in interpreting a treaty”); 133 Cong. Rec. H 11, 224 (daily ed. December 10, 1987) (statement of Rep. Crockett) (ATA would place United States “in violation of our treaty obligations”).
30 E.g. Pub. L. 100-204 § 215(a), 101 Stat. 1331, 1343 (adding 22 U.S.C. § 4315(a)) (“A foreign mission may not allow an unaffiliated alien the use of any premise of that foreign mission which is inviolable under United States law (including any treaty) for any purpose which is incompatible with its status as a foreign mission including use as a residence”). (emphasis supplied); see. also id. § 806(d) (1) (B), 101 Stat. at 1398 (adding 19 U.S.C. § 2492(d)(1)(B)) (abrogating “agreements,” necessarily international).
31 Transcript of oral argument, p. 18 (June 8, 1988). This concession disposes of the suggestion that the United States’ Security Reservation to the Headquarters Agreement, Annex 2, § 6, 61 Stat. at 766, 767-681 (22 U.S.C. § 287 note), serves as a justification for the ATA.
32 E.g. 133 Cong. Rec. H 11, 684-85 (daily ed. December 18, 1987) (statement of Rep. Burton); 133 Cong. Rec. S 15, 621 (daily ed. November 3, 1987)(statement of Sen. Grassley); 133 Cong. Rec. S 9, 627 (daily ed. July 10, 1987)(statement of Sen. Grassley); 133 Cong. Rec. E 2, 249 (daily ed. June 4, 1987)(statement of Rep. Gallegly); 133 Cong. Rec. H 4, 047 (daily ed. May 28, 1987)(statement of Rep. Herger); 133 Cong. Rec. S 6, 449 (daily ed. May 14, 1987)(statement of Sen. D'Amato); id., S 6448 (statement of Senator Dole); 133 Cong. Rec. E 1, 635 (daily ed. April 29, 1987)(statement of Rep. Kemp).
33 133 Cong. Rec. H 12, 224 (daily ed. December 10, 1987) (statement of Rep. Crockett); 133 Cong. Rec. S 13, 852 (daily ed. October 8, 1987)(statement of Sen. Bingaman); 133 Cong. Rec. E 2, 895 (daily ed. July 14, 1987) (statement of Rep. Bonior).
34 Transcript of Joint Conference on H.R. 1777, pp. 210-11 (December 3, 1987) (statements of Reps. Mica and Kostmayer).
35 “As far as the closure of the PLO Observer Mission is concerned, this would be seen as a violation of a United States treaty obligation under the United Nations Headquarters Agree-ment.” Letter from Sec. of State George P. Shultz to unnamed Senators and Congressmen (July 31, 1987), partially reprinted in 133 Cong. Rec. S 16, 605 (daily ed. November 20, 1987) (statement of Sen. Grassley).
36 Hon. Abraham Sofaer:“It is our judgment that the Headquarters Agreement as interpreted and applied would be violated.” New York Times, January 13, 1988 at A3.
37 Accord 133 Cong. Rec. H 8, 790 (daily ed. October 20, 1987) (statement of Rep. Burton); 133 Cong. Rec. S 9, 627-28 (daily ed. July 10, 1987)(statement of Sen. Grassley); 133 Cong. Rec. S 6, 449-50 (daily ed. May 14, 1987)(statement of Sen. D'Amato); id. S 6, 449 (statement of Sen. Dole). Indeed, this misapprehension apparently has continued after the passage of the ATA and even during the pendency of this lawsuit.E.g. 134 Cong. Rec. S 3, 113 (daily ed. March 25, 1988) (statement of Sen. D'Amato); 134 Cong. Rec. S 1, 997 (daily ed. March 4, 1988)(statement of Sen. Grassley).