Several news outlets picked up the story that - as a consequence of the ongoing COVID-19 pandemic - the United Nations will be virtually convening the weeklong General Debate for the first time. Prior to this, telecommuting arrangements were in place for all staff at the U.N. headquarters beginning on March 16.² This gives rise to an interesting question: in a time of public health crises and lockdowns of varying severity the world over, to what extent can local health initiatives impact the operations of the United Nations? Answering this question comprehensively would require a review of the headquarters agreements applicable to the various permanent U.N. stations around the world,¹ as well as the more provisional arrangements applicable to U.N. conferences and the like. As a first step toward an answer, this post will assess which provisions of the 1947 Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations ("UNHQ Agreement") might empower (or frustrate) local, pandemic-related public health initiatives vis-a-vis the United Nations Headquarters in New York City. This is not only the U.N.'s most consequential location, but as the UNHQ Agreement was the U.N.'s first agreement with a host government concerning the operations of a permanent U.N. facility, it has served as a starting point for all subsequent agreements.³
There are two dimensions to this problem: (1) U.N. operations within
headquarters grounds; (2) the entry of persons to the country for
transit to the Headquarters district. To begin with, several relevant provisions of the UNHQ Agreement are reproduced below (the starred provisions were also effective for purposes of the interim headquarters agreement):⁴
ARTICLE I: Definitions
Section 1* - In this agreement:
. . .
(b) the expression 'appropriate American authorities' means such federal, state, or local authorities in the United States as may be appropriate in the context and in accordance with the laws and customs of the United States, including the laws and customs of the state and local government involved;
(c) the expression 'General Convention' means the Convention on the Privileges and Immunities of the Untied Nations approved by the General Assembly of the United Nations 13 February 1946, as acceded to by the United States.
. . .
ARTICLE III: Law and Authority in the Headquarters District
Section 7*
(a). The headquarters district shall be under the control and authority of the Untied Nations as provided in this agreement.
(b) Except as otherwise provided in this agreement or in the General Convention, the federal, state and local law of the United States shall apply within the headquarters district.
. . .
Section 8* - The United Nations shall have the power to make regulations, operative within the headquarters district, for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions. No federal, state or local law or regulation of the United States which is inconsistent with a regulation of the United Nations authorized by this section shall, to the extent of such inconsistency, be applicable within the headquarters district. Any dispute, between the United Nations and the United States, as to whether a regulation of the United Nations is authorized by this section or as to whether a federal, state or local law or regulation is inconsistent with any regulation of the United Nations authorized by this section, shall be promptly settled as provided in Section 21.⁴ Pending such settlement, the regulation of the United Nations shall apply , and the federal, state or local law or regulation shall be inapplicable in the headquarters district to the extent that the United Nations claims it to be inconsistent with the regulation of the United Nations. This section shall not prevent the reasonable application of fire protection regulations of the appropriate American authorities.
. . .
ARTICLE IV: Communications and Transit
. . .
(c) This section does not prevent . . . the reasonable application of quarantine and health regulations.
. . .
Section 20 - The Secretary-General and the appropriate American authorities shall settle by agreement the channels through which they will communicate regarding the application of the provisions of this agreement and other questions affecting the headquarters district, and may enter into such supplemental agreements as may be necessary to fulfill the purposes of this agreement. In making supplemental agreements with the Secretary-General, the United States shall consult with the appropriate state and local authorities. If the Secretary-General so requests, the Secretary of State of the United States shall appoint a special representative for the purpose of liaison with the Secretary-General.
. . .
ARTICLE IX: Miscellaneous Provisions
Section 26 - The provisions of this agreement shall be complementary to the provisions of the General Convention. In so far as any provision of this agreement and any provisions of the General Convention relate to the same subject matter, the two provisions shall, wherever possible, be treated as complementary, so that both provisions shall be applicable and neither shall narrow the effect of the other, but in any case of absolute conflict, the provisions of this agreement shall prevail.
Section 27 - This agreement shall be construed in the light of its primary purpose to enable the United Nations at its headquarters in the United States, fully and efficiently to discharge its responsibilities and fulfill its purposes.
We'll begin with the first dimension, operations within the Headquarters district.
What jumps out . . . is that nothing in the U.N. Headquarters Agreement really jumps out to definitively answer our question. There seems to be a tension between Section 7(a), which places the headquarters district under U.N. "control and authority" and Section 7(b), which renders U.S. federal state and local law "applicable" within the headquarters district. In the event of a pandemic, state and/or local law may well vest state or local authorities with the power to order a quarantine. A statewide or citywide order would have effect within the U.N. Headquarters area, unless otherwise provided in the U.N. Headquarters Agreement. In this regard, that Section 8 empowers the U.N. to create regulations applicable in the Headquarters area and give effect to its own regulation in the event of dispute, it seems that the U.N. could effectively override such an order if necessary. (Or, more diplomatically, resolve any difficulty through the modes of communication referenced in Section 20.)
In this instance, New York City confirmed its first case of COVID-19 on March 1, 2020. The governor of the state of New York declared a statewide disaster emergency in Executive Order No. 202 on Mar. 7, 2020.⁵ The mayor of New York City declared a citywide state of emergency in Emergency Executive Order No. 98 on Wednesday, Mar. 12, 2020. The following Monday, the U.N. Headquarters adopted teleworking arrangements. It was only on March 20 that the governor of the state of New York announced the "New York State on PAUSE" Executive Order, which ordered the statewide closure of all "non-essential" businesses and gatherings at 8PM on March 22.⁶ Per the U.S. Department of State, the governor's Order did not restrict the activities of foreign missions, and it is assumed that this was the case for the U.N. Headquarters as well.
In sum, the United Nations Headquarters was more cautious, and more proactive in transitioning to telework arrangements than the state and local authorities.⁷ As a result, the provisions of the U.N. Headquarters agreement concerning operations in the Headquarters district were not exactly put to the test, in that there was never a situation in which the U.N.'s course of action was inconsistent with those set forth in state or local edicts. Indeed, particularly given the operational alternatives provided by modern communications technology, a scenario wherein there is a genuine public health emergency such that state or local authorities order the cessation of in-person operations, but the U.N. seeks to continue such operations, seems unlikely. One would assume that as a general matter the public health assessment of state and local authorities would not differ dramatically from that of the United Nations itself.
There looms the possibility that a host state could contrive an emergency to frustrate U.N. operations. Given the generally indiscriminate impact of public health crises, the collateral damage of such a declaration (i.e., shutdown of the entire city or state) would probably preclude a politically motivated quarantine order being used against the U.N. in particular. Other security threats, e.g., a "terrorist threat" in the area of the U.N. location are perhaps more plausible. In such an instance, notwithstanding the ambiguity introduced by Section 7(b), as a practical matter I would argue that the U.N.-favoring dispute resolution provisions and the rule of construction laid down by Section 27 essentially permit the organization to defy the local order in favor of applying the U.N.'s own regulations upon U.N. premises.
As for the second dimension, given the cross-border comings and goings that necessarily characterize
the operations of the United Nations, including on Headquarters grounds,
it is separately important to consider the extent to which the power of
U.N. personnel and representatives may enter and leave the country,
notwithstanding domestic public health rules. In this regard, Article
IV concerns "Communications and Transit." Section 11 essentially
prohibits the imposition of "impediments" to "transit to or from the
headquarters district" for specified categories of persons. Section
13(c), the only section of the U.N. Headquarters Agreement to
specifically reference public health measures, carves out an exception
to Section 11, preserving U.S. authorities' right to "the reasonable
application of quarantine and health regulations." Of course, what is
"reasonable" is a creature of context. In most cases, and in an
environment where many countries have closed or virtually closed their
borders to international travel due to the COVID-19 pandemic, onerous
quarantine requirements may nevertheless be reasonable. Such
requirements would nevertheless essentially make certain in-person
events impossible -- particularly the General Debate, which involves the
participation of masses of state representatives not ordinarily
resident at a foreign mission in the United States.
Here, by a series of Executive Orders beginning in late January 2020 [1, 2, 3, 4, 5, 6] the United States restricted the entry of noncitizens having been in specified countries within 14 days prior to seeking entry into the United States. Notably, these orders (excepting the first, i.e., the January order regarding China) exempted noncitizens "whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement" (the "Section 11 carve-out"). All of these orders (that is, including the one regarding China) exempted noncitizens on G-visas, which are given to employees of international organizations and their family members. As such, at least as concerns persons in China, the question arises whether failure to include the Section 11 carve-out falls within the scope of Section 13(c) of the U.N. Headquarters agreement. It is the author's opinion that this may have been arguable when the Executive Order was initially promulgated back in January, but that today it is no longer seriously defensible for three reasons: (1) available data do not suggest that the outbreak in China is materially more severe than the outbreak in the other countries subject to Executive Order -- indeed, the data show that Brazil has far more cases and deaths per capita; (2) even if there are doubts about the veracity and completeness of the Chinese data, the Executive Order does not indicate any such concern; and (3) the same policy considerations that favor an exception for persons on G-visas likewise counsel in favor of an exemption for persons falling under Section 11 of the U.N. Headquarters agreement. In other words, it is not "reasonable" within the meaning of Section 13(c) to treat ostensibly similarly situated groups differently (both within the same Executive Order, and across different Executive Orders), without providing any supporting rationale.
Given that the U.N. has canceled the in-person General Debate, this may not come to a head, although persons enter under Section 11 of the U.N. Headquarters Agreement for reasons far more varied than the General Debate. Were the U.S. to unreasonably deny entry, however, the U.N. Headquarters Agreement does not provide it the same power of override-pending-dispute-settlement for entry and exit decisions that are provided in relation to activities within the Headquarters district by Section 8. So, as a practical matter, the U.S. (or presumably any host state, assuming the relevant provisions of the headquarters agreement are the same) could interfere with the comings and goings of various non-employee personnel. Of course, this is more a concern for some classes of persons specified in Section 11 (e.g., U.N.-accredited press (Sec. 11(3)), as other classes presumably have the alternative of seeking diplomatic accreditation from the United Nations (e.g., representatives of members (Sec. 11(1)) or experts on mission (Sec. 11(2)).
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¹ This would involve dozens and dozens of such agreements.
² Last accessed Aug. 20, 2020. The author does not expect this link to remain static. At the time of access, a post dated Monday, Mar. 16, 2020 read: "From 16 March 2020, all staff in New York are required to telecommute and work remotely, unless their physical presence in the building is needed to carry out essential work in New York and around the world."
³ Thus, for example, the headquarters agreements for the United Nations' Latin America, Asian, and African Economic Commissions feature language nearly identical to Section 13(c) of the U.N. Headquarters Agreement, although they use the phrase "quarantine and health regulations" instead of "quarantine and public health regulations." See UNEC (Chile) HQA, 314 UNTS 49, Art. VI, Sec. 12(d); UNEC (Thailand) HQA, 260 UNTS 35, Art. VII, Sec. 16(d); UNEC (Ethiopia), UNTS Reg. No. 4597, Art. IV, Sec. 9(d).
⁴ Section 11 was intentionally omitted, as this post is primarily concerned with ordinary, non-executive staff members, who are not expressly mentioned in Section 11 of the UNHQ Agreement.
⁵ Interestingly, the first development cited in this Executive Order is the World Health Organization's January 30 designation of a Public Health Emergency of International Concern.
⁶ At the time, it was reported that the New York City Mayor wanted a more restrictive 'stay-at-home' or 'shelter-in-place' order.
⁷ The response of U.S. federal authorities has been (and continues to be) so limited and ineffectual as not to be relevant to the question treated in this post.
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