The legal regime for a permanent Olympic site.
In the aftermath of the boycott of the 1980 Moscow Olympics, proposals to establish a permanent neutral enclave for the games have received widespread support. (2) This article examines the possible legal regimes for such an enclave and their precedents in international law. After describing the legal devices available to achieve the necessary autonomy, this article will examine the capacity of the International Olympic Committee (IOC) to enter into an agreement which will be binding on the forum state. Three aspects of the problem make it especially interesting for the international lawyer. It presents an opportunity to employ the traditional concepts and devices of international law creatively to achieve a practically obtainable and limited end. It highlights the unresolved issue of the international legal status and capacity of non-governmental international organizations (NGOs). (3) Finally, the problem provides a unique point of contact between public and private international law and an opportunity to adapt some techniques of the latter to problems traditionally reserved for the former. (4)
When Heracles established the Olympic games in 776 B.C., he chose the sacred site in part because it was located in the minor city-state of Elis. (5) Because the municipal authorities managing the festival were relatively weak, "Athletes from all over the Greek world could safely compete ... without building up the prestige of a powerful host-community." (6) The games were placed under "the inviolable law of Olympic Zeus," which included a "sacred truce" for the two months immediately preceding and following competition. (7) While the truce did not cause the Hellenic states to cease their warfare, it insured safe conduct for the tens of thousands of athletes and spectators traveling to Olympia for the games. (8) The site of the festival acquired the status of a "pan-Hellenic centre" to which official "sacred embassies" were accredited, (9) The arrangement was respected by all of the Hellenic States and represented an international legal norm of great potency. (10)
When Baron Pierre de Coubertin reestablished the Olympic games in 1894, (11) he insisted that the quadrennial festival be "ambulatory". (12) It seemed equitable that competitors should share the substantial burdens of international travel and that nations should share the pleasure of convenient spectation and honor of hosting the games. (13) Furthermore, de Coubertin argued that the expenses of staging the competition would be too great for any one country to bear regularly. (14)
However, those involved in the Olympic movement were never unanimous in their dedication to the rotating site scheme. The Greek government lobbied for a permanent site in Athens (15) beginning in 1896, (16) The U.S. athletes participating in the first modern games joined a petition in favor of a permanent site in Greece. (17) De Coubertin's opposition to these efforts was largely circumstantial and strategic. The Greek government was wracked by political and economic turmoil, and its conflict with Turkey effectively foreclosed the possibility of holding the 1900 games in Athens. (18) Furthermore, in the early years of the Olympic movement, the Baron concluded that switching the site every four years would allow him to better control the games and the IOC to consolidate its power. (19)
However compelling the idea may have seemed to de Coubertin, eighty-five years' experience with "ambulatory" Olympics has demonstrated the fundamental flaws of that system. From the beginning, raising the funds to build the necessary facilities has been a heavy burden, (20) The contemporary costs of staging the games - estimated to approach one and one quarter billion dollars in Montreal (21) - limit the possibility of hosting them to the world's wealthiest nations. Also, the selection of various host states has provoked a variety of political impediments to universal participation. (22) The games scheduled for 1916, 1941 and 1944 were suspended due to international conflict, and the Moscow games demonstrated just how vulnerable the Olympics now are to international tensions far short of world war. (23) Finally, the modern revolutions in communications and transportation have eviscerated the original logic of rotating sites. Today, no site is more than a day of jet travel for any competitor, and the pleasure of spectation is as accessible as the nearest television set.
A permanent neutral site under the control of the 1OC (24) would, therefore, have many advantages. The quadrennial site selection process, which is expensive and divisive, would end. The unique facilities which are necessary for the games would not have to be rebuilt every four years and the reduction in costs would obviate the need for the extensive commercial involvement which has so tarnished the competition in recent years. Most fundamentally, a neutral forum in which only the IOC is "host" (25) would eliminate the political disruption which now threatens the survival of the Olympics. The participation of IOC-accredited athletes would not be subject to conflicting foreign policy considerations of a host state, and no state's domestic or foreign policies would he available as grounds on which other nations would feel compelled to boycott the games. (26)
Although a variety of sites (27) have been suggested for this permanent Olympic enclave, (28) a site proximate to ancient Olympia is favored by most proponents. The historic tie of that site to the games for nearly twelve centuries is the most compelling argument for Olympia. (29) Repeating his 1976 offer of Olympia as the site of a permanent Olympic enclave, (30) the Greek Prime Minister in 1980 specifically offered 1250 acres of government-owned land southwest of the ancient precincts. (31)
In the aftermath of the Soviet invasion of Afghanistan, world-wide sentiment for accepting the Greek offer reached unprecedented levels, (32) President Carter, (33) Congress (34) and sixty-two percent of U.S. citizens surveyed (35) supported the permanent site proposal. (36)
The neutrality and autonomy of the Olympic enclave and the powers of the IOC within it are legal elements of the permanent site plan essential to the underlying policy rationales for the change. (37) Adoption of the plan without the full confidence of the IOC that these elements are fully satisfied is inconceivable. Nonetheless, public discussion and private correspondence indicate that these technical issues have not received the close analysis and careful definition that they deserve. (38) Proponents of a permanent site for the Olympic enclave have given that enclave various descriptions: "a sort of Olympic Vatican," (39) "much as the site of the U.N. in New York" (40) and "neutral international territory." (41) This article seeks to clarify this confusion by offering a systematic analysis of the options and proposing one possible legal regime and its manner of implementation. (42)
II. The Functional Elements of Autonomy
All of the options to be explored (43) provide some degree of autonomy. This term, used throughout this discussion, is not a term of art in international law. (44) In most cases, however, it is understood to refer to the degree of "formal and actual independence" in decision-making and control over internal political and governmental affairs. (45) It is generally invoked in legal regimes designed to grant a degree of ' self-government to a local population. (46)
The sense in which autonomy is relevant to this inquiry, therefore, is different. The end of autonomy in the case of the Olympic enclave is narrowly defined functional independence, where few of the functions are those involved in government of a population. (47) This distinction is a theme which runs throughout the following discussion of the applicability of various legal devices anti precedents. (48)
It would be impossible to examine and choose legal devices to govern the status of an Olympic enclave without a clear sense of what the regime functionally must achieve. (49) As legal architects, our task is to manipulate the concepts al our disposal to design a structure peculiarly suited to the parties, functions and political realities in each instance. In the development of privileges and immunities under customary international law, necessity has been the dominant criterion. (50) "[I]t has been clean from the very birth of the [international] Organizations that the privileges and immunities with which they should be endowed should be those which are necessary for the maintenance of their independent status and the execution of their functions ... (51) Thus, the first step is to identify those privileges and immunities necessary for the Olympic enclave.
The politicization which the permanent site proposal is largely designed to eliminate occurs in two principal instances:
when some policy or action of the host state provokes boycotts by other countries (52) and when some policy of the IOC - most probably regarding the accreditation of participating athletes - provokes interference with the games by the host state. To eliminate political incidents of the former type, the new regime must eliminate the concept of a national host. Neither political prestige nor economic advantage (53) should flow to the forum (54) state upon the occasion of the games. There must be no possibility that attendance or nonattendance at the festival has an impact on - and thus expresses approval or disapproval of - the forum state. (55) The IOC must be the only "host" and the only political entity in control of the games.
To eliminate the latter type of politicization, the forum state must be foreclosed from taking any action when conduct of the games would embarrass its relations with another state, (56) be otherwise inconsistent with its foreign policy (57) or have an adverse effect on the government's domestic political position. (58) To prevent action so motivated on the part of the forum state, certain elements of privilege and autonomy must be granted to the Olympics in five principal areas. (59)
The first is access to the site for competitors, spectators and officials. Any exclusions must result from a decision of the IOC; (60) the forum state must not have the power to deny access to the enclave by restricting travel into or across its territory. (61)
Second, the Olympic premises must be protected from forum state interference. (62) Forum state police, military or security personnel must enter the enclave only with the consent of the Olympic authorities. (63) The IOC must be free to construct and maintain the physical premises and must have guarantees that vital supplies, such as water, energy and food will be available without interruption.
Third, both domestic legal capacity and limited immunities from legal process must be granted to the Olympic organization. Neither the forum state nor others acting through the forum state's courts should be able to interfere with the free exercise of the IOC's prerogatives within its area of competence. (64) The selected regime must effectively immunize the IOC from license requirements or other regulations which might be used to interfere with the IOC's complete discretion with respect to management of the games and other activities within the enclave. The TOC should possess the privilege of extending certain personal immunities to certain officials or participants in situations where the integrity or the organization of the games requires it. (65)
Fourth, certain fiscal and financial immunities must be granted. Property within the enclave cannot be subject to requisition, confiscation, expropriation or nationalization. The Olympic organization must be immune from income and property taxation, taxes on its international debt service, foreign exchange controls and all other fees or levies which are potential instruments of pressure for the forum state. (66) Finally, the IOC must have complete control over the sale of television rights to the games, (67) the issuance of press credentials and the flow of information from the Olympic site to the outside world. (68)
Because the essential function of the Olympic enclave - the staging of a quadrennial international sports competition - is a narrow one, these minimum elements of functional autonomy are specific and limited. Based on the sound principle that functional necessity should govern the grant of privileges and immunities under international law, (69) the subsequent analysis will evaluate each proposed legal solution against its responsiveness to these elements of operational necessity.
III. Legal Devices for Autonomy: The Options and Precedents
A threshold question is why the Olympic site cannot simply be established by a grant or lease of land pursuant to municipal law. This is the most common procedure for the headquarters sites of most NGOs. (70) Three principal factors, however, distinguish the Olympic games. First, the functional demands of the games are significantly different from those of any other NGO activity. The Olympic presence in Greece would not simply be for the purposes of administration and decision-making, but to stage an enormously complex - and as presently constituted, political - international event. Second, the Olympic site would be distinguished by the size of the capital investment necessary to establish the facilities. The stakes are quantitatively higher. And third, the history of and motives for forum-state interference in the games make the Olympic organization unique among NGOs. All of these make a simple deed, lease, or agreement governed by Greek law - which the Greek parliament could abrogate unilaterally (71) - unsatisfactory and necessitate the exploration of other options.
A. Fully Extraterritorial Sovereign Enclave
The earliest exercises in the granting of functiona1 immunities on foreign soil concerned the premises of diplomatic missions. (72) The classic solution was the legal fiction (73) of extraterritoriality, "complete independence from territorial authority." (74) This legal device was applied in a variety of situations to protect foreign property and nationals from all domestic jurisdiction. (75) One such use was to guarantee operational independence to the first international organizations. (76) The application of the notion to extraterritoriality to the regime governing legation premises and personnel was subject to substantial criticism (77) and has been largely replaced in international law by the concept of "diplomatic privileges and immunities." (78)
Nonetheless, full exemption of the Olympic site from the territorial authority and jurisdiction of Greece is an intuitively simple and obvious solution and one mentioned by both the popular press and Greek authorities. (79) It seems to provide a solid legal foundation for the autonomy and neutrality of the games, a foundation which would be invulnerable to unilateral change by Greece or to renegotiation at her demand. (80) Additionally, proponents of this option can cite the familiar precedent of the Vatican City.
The Vatican City was created by a 1929 concordat between Italy and the Holy See which gives the latter "exclusive jurisdiction" within the territory of the city. (81) At first, the parallel to the Olympic enclave may seem close. The Vatican City is "proximate" to a state in function, (82) yet it has no population other than its resident functionaries. (83) "[U]nlike other States the Vatican City exists not to support its inhabitants but to provide a base for the central administration of a non-state entity." (84) The nature of the Holy See's "administration," however, distinguishes its functions from those of the IOC, and explains why a fully extraterritorial enclave is appropriate in the case of the former and not in the latter. The function of the Holy See is to exercise its spiritual power over and thus independently from all secular sovereignties. Its functions are carried out world-wide within the territorial jurisdiction of all secular sovereigns. The Vatican City was thus appropriate as "a territorial base for the exercise ... of the spiritual power of the Holy See" throughout the world. (85)
While a fully extraterritorial sovereignty is appropriate to the broad range of international functions of the Holy See, it would be a blunt and overbroad instrument if applied to the Olympic enclave. The cost of that overbreadth would be high. With fully extraterritorial status and sovereignty, the IOC would be forced to establish and maintain the whole apparatus of government. (86) The burdens of establishing a body of law and a judiciary to enforce it, of administering internal policies and foreign relations and of meeting the other responsibilities of "statehood" would be great. Further, these would be beyond the competence or interest of the IOC. These factors, plus possible Greek political resistance to cession and the potential for local opposition, make this first option an unattractive one.
B. International Grant, Lease or Servitude
"A State may grant a right of exclusive use over apart of its territory to another State, retaining sovereignty, but conceding the enjoyment of the liberties of the territorial sovereign." (87) The United Kingdom's ninety-nine-year lease of Hong Kong is a notable example of this concept. (88) Characterization of this sort of arrangement as a "lease," how-ever, is not precisely accurate. Brownlie argues that "where [grants of interest in territory] have been established by agreement the result is more akin to a contractual licence than it is to an interest in land in the English sense." (89) The exact legal effect of these grants and servitudes and the precise nature of the grantor's and grantee's interests can only be determined by reference to the contractual language establishing them. (90) The concept which unifies them as a class and distinguishes them from fully extraterritorial sovereign enclaves is "residual sovereignty." Pursuant to the U.S. lease of Guantanamo from Cuba, for example, the United States recognizes the "ultimate sovereignty" of Cuba, while Cuba consents to "complete jurisdiction and control" by the United States. (91)
Three principal problems impede the usefulness of this device for the Olympic enclave. First, these "international" grants, leases or servitudes are made by contractual arrangement between sovereigns. It is because one state grants land to another that the agreement falls under the purview of international law. As will be discussed at length, (92) the IOC is not a State and does not have the legal capacity to accept this sort of sovereign interest. Second, the status of these agreements under international law is uncertain, If they are interpreted as a simple contractual interest in land, then they may be subject to unilateral termination by the grantor. (93) Third, and most fundamentally, all of the objections against the previous option apply here. This device gives the IOC too much responsibility and requires it to assume the governmental burdens of sovereignty unnecessarily. (94)
C. Internationalized Area
A wide variety of juridically distinct entities can be considered "internationalized areas." (95) They include Shanghai (96) and Tangier, (97) both established before World War I, and Alexandretta, (98) Saar, (99) Upper Silesia, (100) Memel, (101) and Danzig, (102) all established under the League of Nations. The concept of an internationalized territory was also used in U.N. proposals regarding Trieste (103) and Jerusalem. (104) Although these legal regimes differ significantly, all involve the creation of certain rights of autonomy vis-a-vis the territorial sovereign from which they are carved and the vesting of those rights in a public international organization or in two or more other states, (105) Among examples of the former, Danzig and Trieste were both created by multilateral treaty and placed under the direct authority of the League of Nations and the U.N. Security Council respectively. (106) The plans were never implemented. Notwithstanding the formal internationalization of the territorial sovereignty, the Permanent International Court of Justice held that Danzig possessed an international personality and the legal capacities of a state. (107)
An example of internationalization which was not made universal through an international organization, but was limited to a smaller group of states, is the international city of Tangier. Under its 1914 statute, (108) the municipality was granted extensive legislative and diplomatic authority, although ultimate sovereignty was reserved to the Sultan. The participating states shared that expanded municipal authority. (109) Although difficult to label, one scholar described the arrangement as "a sort of condominium between the Sultan and the Powers," or as "an international protectorate." (110)
Although interesting academically, none of these precedents is valuable for the design of an Olympic enclave. First, the concept of internationalization was designed for a very different end. The most thorough investigator of international territories concluded that, by definition, they include populated areas. (111) They usually were crafted to bring political autonomy to a persecuted minority or to neutralize a territory for political or military purposes. Second, the historical failure of the device to achieve these ends indicates that the device should be avoided. (112) Some contemporary scholars go so far as to assert that 'internationalization" has ceased to be a recognized concept in international law. (113) Finally, the effect of internationalization - bringing the area directly under the control of a highly political international forum similar to the United Nations - is exactly what the neutral site scheme seeks to avoid. The independence and neutrality of the IOC would be severely compromised.
D. Contractual Guaranty of Limited Autonomy
The final device, contractual agreement between the forum state and the IOC, may provide the functional privileges and immunities needed for an autonomous Olympic site. The headquarters agreements of intergovernmental international organizations (IGOs) generally take this form. (114) The site remains under the territorial sovereignty of the forum state. Thus, this arrangement requires neither the fiction of extraterritoriality nor a division of sovereignty. (115) The headquarters of the United Nations in New York, for example, is part of the territorial United States. (116) Title to the property is in the name of the United Nations and is filed and registered pursuant to New York laws. (117)
Within the enclaves, however, these agreements grant complete control to the organizations regarding matters in their areas of competence. Section 7 of the U.N. Headquarters Agreement provides that "the headquarters district shall be under the control and authority of the United Nations. (118) Similar clauses appear in most headquarters agreements. Austria covenanted with the International Atomic Energy Agency (IAEA) that the premises "shall be under the control and authority of the [IAEA]. (119) Italy recognizes the right of the U.N. Food and Agriculture Organization (FAQ) to fulfill its essential purpose and undertakes to "take all proper steps to ensure that no impediment is placed in the way. (120) Although forum state civil and criminal laws generally govern within the headquarters district, (121) these agreements often provide that no law inconsistent with a regulation of the organization will be enforced. (122) Thus, these agreements could provide the operational independence which the IOC requires to govern and administer the Olympic games.
The immunities accorded to various IGOs under these headquarters agreements are similar. The agreements establish a "common pattern" which may be assuming the force of customary international law, (123) As early as 1952 one commentator could write, "Particular international law is thus being progressively created along ... well-developed lines. ..." (124) There is precedent in the headquarters agreements for each of the functional immunities the IOC requires. (125)
An undertaking by the host state that it shall not impose an impediment to transit to or from the headquarters district and that recognizes its positive duty to protect such transit is a standard clause in headquarters agreements. (126) The free transit provisions generally apply to certain enumerated parties and such "other persons invited" by the organization. (127) The U.N. headquarters agreement provides that the United States shall not apply its regulations regarding the entry of aliens in such a way as to interfere with transit to and from the site. When visas are required for such persons, the United States covenants that "they shall be granted without charge as promptly as possible. (128) A provision like section 12 of the U.N. Headquarters Agreement would be especially important for the Olympic enclave: "The provisions of section 11 [regarding free transit] shall be applicable irrespective of the relations between the Governments of the persons referred to in that section and the Government of the United States." (129)
Inviolability, based on the traditional rights of franchise de l'hotel and franchise de quartier accorded to diplomatic premises, is a key provision of all headquarters agreements. (130) The first element of inviolability is immunity from search, requisition, confiscation, expropriation or any other form of interference. (131) Officials of the host state are prohibited from entering the premises of the organization without its consent. (132) In the U.N.-U.S., FAO-Italy and UNESCO-France agreements, the host governments undertake to protect the premises (133) and to ensure that they are continuously supplied with the "necessary public services." (134) The former undertaking would be especially important for the IOC, which would require the right to demand from the forum state police and military assistance adequate to maintain the security of the games.
3. Legal Capacity and Limited Immunity from Legal Process
Most host governments recognize the organization as a body corporate and grant it capacity under municipal law to make contracts, buy and sell property and institute legal proceedings. (135) Approaches to immunities from legal process differ. One approach, taken by Italy and the FAQ, is to grant complete immunity from all legal process, subject only to specific waiver by the organization. (136) Another is to grant the same immunities from suit as those granted to a foreign sovereign. (137) The latter approach may be an appropriate one for the IOC, which should be left accountable in local courts for the exercise of its powers in ordinary commercia1 transactions. (138)
4. Fiscal and Financial Immunities
The agreements. are uniform in granting a broad tax exemption to the organization, including exemptions from customs duties and levies and other "financial controls." (139)Many provide that the organization shall have the right to hold various currencies and freely to transfer its funds abroad. (140) In view of the anticipated capital demands of the IOC and the importance of financing arrangements to the overall plan, (141) payments of interest to foreign holders of the IOC's debt obligations must be specifically exempted from any present or future Greek withholding taxes. (142)
5. Free Information Flaw
A variety of devices have been used to ensure the free flow of inf0rmation to and from the headquarters site. The U.N. Headquarters Agreement provides that the organization may operate independent communications facilities. (143) Other provisions establish a mostfavored- nation standard for telephone, radio and television transmission. (144) Additional clauses which should appear in the Olympic agreement include a covenant that "no censorship shall apply" to the communications of the organization (145) and that the forum state shall "permit and facilitate entry" of all press accredited by the organization. (146)
All of the terms, therefore, which are required to provide the functional privileges and immunities necessary for the autonomy and neutrality of the Olympic site are represented in the headquarters agreements of IGOs. An agreement between Greece and the IOC modeled on these headquarters agreements would provide the necessary protections without the burdens attached to full or partial cession of territory or sovereignty. This, however, is only the first half of the necessary inquiry. The second is whether such an agreement would be binding and enforceable in accordance with its terms, thus providing effective legal and actual protection to the Olympic games.
IV. Agreement between Greece and The IOC: The Problem of Creating Obligations that are Binding, Enforceable and not Subject to Unilateral Termination
All of the contractual precedents examined in the previous section were the headquarters agreements of intergovernmental organizations. Since public international organizations generally are accorded the capacity to make contracts under international law, (147) these agreements are considered by most to have the status of treaties (148) enforceable under international law. (149) Moreover, a variety of other circumstances give additional security to organizations which rely on these agreements for protection. First, the host state is usually a member of the IGO, and as such may have additional obligations regarding its privileges and immunities. Article 104 of the U.N. Charter, for example, provides that "[t]he Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." (150) Second, obligations under both membership and headquarters agreements may be supplemented by a multilateral convention on the privileges and immunities of the organization, as was done in the case of the United Nations. (151) Third, these obligations generally are implemented by municipal legislation. (152)
Together, these arrangements give confidence to IGOs that the obligations of host states to respect their functional autonomy are not only binding and enforceable under international law but will, as a practical matter, deter interference of host states. If the contractual guaranties of autonomy from Greece are to give the Olympic games the same security as do those given to IGOs, the Greek guaranties must rise to the status of obligations under international law. (153) "In simplest terms, once a contract has moved to the international level, it cannot lawfully be affected by unilateral national legal action. ... [S]tates cannot invoke their sovereignty to abrogate an international treaty. ... (154)
The first hurdle facing the IOC in attempting to form such art international contract is that of establishing its status under international law. IGOs have the capacity to enter into agreements enforceable under international law; their headquarters agreements have the status of treaties. (155) If NGOs - and the Olympic organization in particular - have achieved a status similar to IGOs in respect to treatymaking capacity, then the obligations of Greece can be embodied in a bilateral contract with the status of a treaty. Alternatively, the subject matter and the nature of the agreement between Greece and the IOC may bring it under the purview of international law.
This possibility is suggested by a series of arbitral decisions that have "internationalized" concession agreements between states and foreign non-sovereign investors. (156) This second approach avoids the problem of determining whether the IOC possesses international legal personality.
A. International Legal Personality and the Capacity to Contract under International Law; The Status of NGOs
The character of agreements concluded with NGOs largely depends upon the question whether [they] are allowed ... international competence according to public international law. ... As the formal elements of agreements concluded with NGO's [sic] are the same as those of a normal agreement, the international character of these agreements will largely depend upon the opinion about the [international legal personality] of NGOs. (157)
"International legal personality" is not a well-defined concept in international law. But the various explanations of what constitutes it seem to share two essential elements. First, international personality is "neither derived from nor limited by the law of any one State." (158) Thus the presence of national character is a useful test. A national charter, for example, "by associating the [entity] with a particular state, detracts from its international status. ... (159) Second, an international legal person is one with rights and duties under public international law. (160)
International legal personality was first extended to IGOs on the theory of collective sovereignty. (161) This fiction, that the organizations were the collective instruments of other sovereigns, (162) helped to breach the barrier which had reserved international personality for territorial entities. (163) The contemporary basis for according international legal status to NGOs, and the one upon which the International Court of Justice recognized the status of the United Nations in the Reparations Case, (164) is a functional one: "If it was once the personality which made a function international, it is now the function which confers legal internationality to the entity which is engaged in such activity," (165)
Although the International Court of Justice limited its decision in the Reparations Case, (166) to the capacities of the United Nations, it recognized that the class of international persons was no longer immutable:
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life. ... (167)
2. The Olympic Organization
An analysis of whether the IOC is an international person must begin with an examination of the IOC's structure and origin. Rule 11 of the present Olympic Charter states that the IOC "is a body corporate by international law having juridical status and perpetual succession, Its headquarters are in Switzerland." (168) The virtual dictator of the movement in its early days, Baron de Coubertin, conceived of the IOC as "independent, international, [and] sovereign." (169) Although a traditional NGO headquarters agreement was signed with the City of Lausanne on April 10, 1915, (170) when the IOC chose Lausanne as the site of its General Secretariat, the Committee has never compromised de Coubertin's vision and maintains its claim to international legal personality.
The constitutive document for an international organization ordinarily is accorded great weight in determining the legal status of that organization. However, Rule 11 cannot be considered to be so determinative. At least at present, there is no such entity as "a body corporate by international law." This, and the lack of formal incorporation pursuant to the laws of Switzerland, (171) lead some to conclude that the IOC simply has "no legal status." (172)
In light of the developing strength of the functional principle, the exercise of various international legal capacities by IGOs and the arguments for extension of similar capacities to NGOs when warranted, (173) the IOC may yet see its eighty-seven-year old claim accommodated by international law. This is because, more so than ever in its history, the Olympic organization "manifests traits and actions characteristic of international organizations." (174)
The purposes of the Olympic movement are broad and public in nature. They include: "to educate young people through sport in a spirit of better understanding ... and of friendship, thereby helping to build a better and more peaceful world," and "to spread the Olympic principles throughout the world, thereby creating international goodwill." (175) The organization is truly neutral in character. Political, racial and religious discrimination are explicitly prohibited in the Charter. (176)
With members from over fifty countries, participation in the IOC is nearly universal. Among NGOs, the IOC is a unique example of a membership system in which the members are selected not as representatives of states or other international organizations, but as the organization's representatives to national and international organizations. (177) Rule 12 provides in part: "Members of the IOC are representatives of the IOC in their countries and not their delegates to the IOC. They may not accept from governments or from any organizations or individuals instructions which shall in any way bind them or interfere with the independence of their vote." (178)
The political structure of the Olympic organization is truly transnational. Although the IOC is the governing body, the organization also includes the Olympic Congress, the National Olympic Committees and International Sports Federations. National Committees are recognized by the IOC and required to be "autonomous and ... [to] resist all pressures of any kind whatsoever, whether of a political, religious, or economic nature," (179) These Committees, representatives of the twenty-six International Sports Federations (180) and IOC members constitute the Olympic Congress. (181)
The Olympic organization makes its own rules, legislates and administrates within its area of competence. The movement has been largely transformed from one which relied upon "discretionary decision- making" to one which uses a "quasi-legal process of rule-creation and supervision." (182) The Charter now contains seventy-one rules, detailed by-laws and instructions to hosts of the games on every aspect of procedure and administration, all drafted by a "Legislation Commission" appointed by the IOC. (183)
Finally, the IOC enforces its rules through judicial and arbitral proceedings. Rule 23 provides that "The IOC is the final authority on all questions concerning the Olympic Games and the Olympic movement." (184) The by-laws provide for the delegation of authority, hearing procedures and penalties for breach of IOC rules. (185)
Together, these characteristics and activities make the Olympic organization a significant transnational actor. (186) The relationships between the IOC, the international sports federations and the national committees are governed only by IOC regulations. Yet they impose a potent transnational legal order on a distinct area of transnational sporting activity. (187) Functionally, the activities of the Olympic movement make it as much an international actor as most of the narrow purpose IGOs.
3. Current Legal Status of NGOs
Scholarship on the question of the legal status of NGOs is scarce. Many scholars holding a progressive view argue that the requirements of international life are now such that certain NGOs should be embraced as international persons; some maintain that they already are. (188) The great majority of lawyers and scholars, however, have concluded that NGOs are currently governed by their constitutive instruments and by the municipal law of the state pursuant to which they have been established. (189) But those who advance the argument that NGOs should be or are international entities make arguments worth examining.
Scholars holding a progressive view ask how the law can continue to deny international legal personality to NGOs, organizations that are functionally identical to IGOs and lack only the IGOs' imprimatur of sovereign membership. These scholars contend that the functional principle requires the disregard of the fiction of collective sovereignty that arises simply from an IGOs' sovereign membership. One response is that the fiction of collective sovereignty cannot he disregarded. Its continuing importance is manifested in the positive doctrine of international law that individuals, whether natural or corporate, cannot be the subjects of international law. (190) Although challenged by some scholars in connection with the development of human rights law, (191) the old rule stands and is vehemently defended, especially by socialist international lawyers. (192) One author believes this adherence to the old rule to be the principal barrier to the recognition of the international legal personality in NGOs. (193)
Nonetheless, in advocating international legal status for NGOs, Brownlie notes that "Whilst due regard must be had to legal principle, the lawyer cannot afford to ignore entities which maintain some sort of existence on the international legal plane in spite of their anomalous character." (194) In a similar vein, Lador-Lederer argues forcefully that the existence maintained by NGOs on the international plane reveals functional attributes identical with those which result in international personality for States and IGOs. (195) Based en an examination of NGOs like the Holy See (196) and the International Committee of the Red Cross, (197) he observes:
The organizations in question are seen to be within the law by virtue of their doing what constitutes statehood: by legislating within the range of their functions, by administering the law within the range of their authority, by adjudicating subjective rights within their jurisdiction, acting in the spirit of their legislation. ... Thus, International Law, once a law of inter-State relations only, is seen to have become the law of all those relations which, not being localized nationally and functionally ... involve intercourse among ... organizations which exist in the intersticium between States, and are created independently of States. (198)
Lador-Lederer is categorical in his conclusion: "Non-State organizations have been recognized as subjects of International Law, and it would be unrealistic to disregard the dynamic importance of this fact. (199)
Although it may be unrealistic to disregard the arguments of Lador-Lederer, it would be reckless to accept his conclusion, especially insofar as it may imply treaty-making capacity. If the functional principle governs the recognition of international legal personality, it must also control the specific capacities granted to various types of international persons. (200) When only states were international legal persons, it was apparent that all international legal persons possessed all international legal capacities. But now that lesser entities claim international personality, there is no logical reason to suppose that the capacities of the various international legal persons must be equal. Lissitzyn argues, "If an entity has treaty-making capacity, it is an 'international person,' but if we are told that an entity has 'international personality,' we cannot conclude that it has treaty-making capacity, since it may only possess some other capacity." (201)
Treaty-making capacity has been traditionally reserved to states. (202) There is wide disagreement about whether an international person always bas the capacity to make treaties. (203)
NGOs like the IOC have concluded various agreements which purport to be international in character. Italy, for example, concluded a variety of international "conventions" with the Order of St. Joan of Malta, (204) and the occupation powers in Germany signed formal agreements with the International Red Cross in 1947. (205) Most of the international agreements concluded by NGOs, however, have been with public international institutions. (206) These include agreements between the United Nations and the Carnegie Foundation regarding use of the Peace Palace in the Hague, (207) between the UNRPR and the International Committee of the Red Cross, (208) and between the Organization of American States and the American International Institute for the Protection of Childhood. (209) Although these agreements may be "on the borderline between international law and municipal law," (210) their status is acknowledged by even the most sympathetic observers to be "problematical." (211)
If the progressive view prevails, the IOC may some day become the international person which its Charter declares it to be. (212) But under established international law, NGOs are not fully international persons and the precedential value of NGO "treaty-making" is doubtful. Thus, the conclusion of an international agreement between the IOC and a sovereign state is at present an impossibility.
B. The "Internationalized Contract"
In his preparatory work for the Vienna Convention on the Law of Treaties, Brierly proposed an alternative analysis for certain types of agreements that does not focus on questions of status and capacity:
It is equally indisputable that an international person [i.e., a State] may have relations ex contractu with an entity other than another such person. 1f transactions of this type are not referable to any system of domestic law, it appears that they must be considered to be contracts of international law. They are not, however, treaties. (213)
Another commentator has suggested that the agreement between an NGO like the IOC and a state would not be referable to domestic law - and thus would be this sort of non-treaty international contract - if it were central to the purposes of the NGO, a contract made pursuant to the organization's international responsibilities and made by the NGO acting in its capacity as an international organization. (214) Although Brierly's proposal for these non-treaty contracts was not included in the final language of the Vienna Convention, (215) there is a growing body of international jurisprudence which suggests that international law may take cognizance of certain agreements regardless of the status or capacity of one of the parties.
Just as both public and private international organizations seek to protect their property and to preserve operational autonomy, private enterprises seek to insulate their long-term foreign investments from adverse actions by host governments. Although the environment may be favorable when the investment is made, "Foreign investors desire assurance that they will continue to receive definite protections, as specified in a binding legal instrument." (216) In the eighteenth and nineteenth centuries, states protected the economic activities of their foreign nationals with international servitudes embodied in interstate agreements. (217) In this century, the norm has been for host states to make contractual undertakings directly with the foreign enterprise. These undertakings take three principal forms: concession agreements, guaranty contracts and instruments of approval issued pursuant to national investment laws. (218)
A concession agreement sets forth the general legal framework for the foreign investment. It grants the basic exploration, exploitation or production rights to a project's sponsors and fixes the form and amount of compensation to be paid to the host country. (219) It details tax treatment, exchange, import and export controls, applicability of local labor laws and all other matters relating to the foreign investor's freedom to control and operate the project. (220) A typical term is one in which the host government promises that "no obligation will be placed" on the foreign enterprise that will "derogate from its right to own, operate, possess, use and realise the ... property held in connection with the project. (221)
When a host country seeks to modify its obligations under a concession agreement, dispute settlement procedures which often lead to formal international arbitration are triggered. (222) The traditional rule applied by arbitrators considering these concession agreements used to be dear: municipal law governs breaches of contract between alien investors and a host government. (223) There was, of course, no question of "international personality" for the private enterprise party to the agreement. Recently, however, a series of important international arbitrations have held that although concession agreements lack the "wholly international" character of traditional state-to-state contracts, they are "basically international." *(224) Because of the nature of the contract - and not because of the status of the non-state party - "[p]arliamentary supremacy and State sovereignty" of the host are held to have ceased to be the "decisive criteria." (225)
In 1958, Swiss arbitrators in the case of Saudi Arabia v. Arabian American Oil Co. (226) upheld the use of freezing clauses (227) in concession agreements. The panel stated that "[n]othing can prevent a State, in the exercise of its sovereignty, from binding itself irrevocably by the provisions of a concession and from granting to the concessionaire irretractable rights." (228) In a subsequent case, the arbitrator found it "natural" that investors be protected from legislative changes which would alter the character of the contract. (229) The arbitrator noted that such protection could not be guaranteed by the "outright application" of national law, since such law could be unilaterally changed by the state. (230) Indeed, the inclusion of freezing clauses came to be seen as a key factor in removing the agreement from municipal law. (231)
In Revere Copper & Brass, Inc. v. Overseas Private Investment Corp., (232) a sole French arbitrator was able to cite sufficient arbitral precedent to call it an "international law rule" that "a government is bound by its contracts with foreign parties notwithstanding the power of [its] legislature under municipal law to alter the contract." (233) He joined previous panels (234) in finding that a governmental contract should be "internationalized" and that the public international law principles, such as pacta sunt servanda, applied. (235)
The logic of these decisions seems to suggest that a similar result would be reached if the privileges and guaranties contained in a bilateral IOC-Greece agreement were ever brought to arbitration. The notion of internationalization seems to embody Brierly's suggestion for non-treaty international agreements and would allow the IOC to create international obligations with Greece even though the IOC might lack the status and capacity normally required for international contracts. For several reasons, however, the IOC could not rely on these precedents alone to produce a similar result in case of a breach by Greece.
First, certain characteristics of these agreements other than the presence of freezing clauses were significant to the findings of ' 'internationalization." Some of these would not be present in a bilateral agreement between Greece and the IOC. The most significant of these characteristics is the purely economic nature of the concessions; all were well supported by consideration given by the concessionaires. The contracts were intimately associated with the host states' economic and social development aspirations and were a part of the very public process of North-South cooperation for development. (236) Although locating the permanent Olympic site in Greece would result in substantial benefits to the Greek economy, the revenues produced by the games would not be shared with Greece (237) and the arrangement could not fairly be characterized as an economic development agreement. (238)
Second, the principle of "internationalization" in the case of concession agreements is "by no means representative of an international legal consensus." (239) Recent U.N. Resolutions (240) associated with the "New International Economic Order" that limit the legal protection of foreign investment reflect a contrary view. The international contract doctrine has been called "[a] disregard of State practice, in favor of doctrinal pronouncements and a small number of arbitral awards." (241) The IOC would be ill-advised to rely on that doctrine to bring its bilateral agreement with Greece under the purview of international law.
V. A Suggested Solution: Participation of Third Party Guarantors and Integration of Financing Arrangements
If the policy ends of the permanent site proposal are to be realized, the obligations of Greece to respect the autonomy and neutrality of the Olympic site must be binding and enforceable in accordance with their terms and not susceptible to unilateral termination. This can be achieved only by making those obligations binding under international law. (242) Since, however, neither the status of the Olympic organization (243) nor the subject matter (244) of the contract bring the agreement under international law, the necessary conclusion is that no purely bilateral arrangement can give the IOC the same security enjoyed by IGOs under their headquarters agreements. The only alternative is to involve some third party which does possess the capacity to bind Greece under international law.
Third parties eau be involved through the mechanism of treaties made for the benefit of third parties. Treaties for the benefit of third parties are recognized under public international law. (245) Article 36 of the Vienna Convention provides that "A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right ... to the third State ... and the third State assents thereto. Its assent shall be presumed as long as the contrary is not indicated. ..." (246) These treaties of guaranty have involved the guaranty of "the possession of specified territory," "the demilitarization of a piece of territory" or permanent neutrality. (247) Because these treaties have been made for the benefit of a third international legal person, they are not the best precedent for guaranty by treaty of the autonomy and neutrality of the Olympic site.
The better precedents are the guaranties made by states with respect to the long-term foreign investments of their nationals. States make these guaranties when, although they have no desire to become directly involved in financing or operating a project in a foreign country, they do have some interest in seeing such investment undertaken. (248) Typically, two separate contracts are involved. (249) The guarantor state concludes a treaty with the host state in which each state agrees to protect the foreign investments of the other's nationals, (250) The second contract is between the guarantor state and its nationals, insuring the latter against a variety of host State actions. An example is a U.S. Overseas Private Investment Corporation (OPIC) guaranty contract, which insures nationals against any action by the host state which prevents the enterprise from "exercising effective control over the use or disposition of [a] substantial portion of its property." (251) The guarantor state thus guarantees the foreign project not only against outright expropriation or nationalization, but against actions which constitute "creeping expropriation" and against any breach of the concession agreement between the enterprise and the host state. (252) Both the guaranty contract between the enterprise and the guarantor and the concession agreement between the enterprise and the host state are governed by municipal law, but the guaranty treaty between the guarantor and host state clearly creates obligations under international law. (253)
A. Basic Plan for Third-Party State Guaranties of the Permanent Olympic Site
Drawing on both the public treaties of guaranty and national practice with regard to investment guaranty agreements, a basic structure for achieving legal protection for the permanent Olympic site is suggested:
The essential legal framework for the site would be set forth in the Bilateral Agreement between Greece and the IOC. (254) This agreement would be modeled on the headquarters agreements (255) and would provide the privileges and immunities the IOC needs. (256) As a condition precedent to the IOC's performance (principally the construction of the Olympic facilities and the conduct of the games at the site), Greece would enter into a Treaty of Guaranty with two or more other states. In this treaty Greece would convenant to abide by the terms of the Bilateral Agreement with the IOC. (257)
The IOC would be protected from the influence of the Guarantors by the execution of two other agreements. An Agreement Among Guarantors would specify the rights and obligations of the Guarantors as against one another in the event of the repudiation or default of any one Guarantor. Also, the Guarantors and the IOC would conclude a Memorandum of Agreement in which the Guarantors reaffirm their joint and several obligations to invoke the Treaty's dispute resolution procedures (258) on behalf of the IOC and explicitly recognize that their status as Guarantors gives them no special rights in or control over the site or administration of the games.
B. Integration of Financing into the Basic Plan
If the games are moved to a permanent site in Olympia, the IOC will require a large amount of capital to construct the necessary facilities. (259) Lenders of the capital for that initial investment will be relying entirely on the revenues produced by the free and unimpeded operation of the games. Furthermore, the lenders, like all major foreign investors, would demand guaranties from the forum state with regard to the free operation of the games as a revenue-producing enterprise. These guaranties would be the same as those the IOC needs to achieve operational autonomy. Thus, the basic plan and the financing arrangements could be integrated by extending the guaranties made by the Guarantors for the benefit of the IOC's creditors:
Besides allowing the Olympic organization to raise the funds it requires in the private international capital markets, (260) this arrangement strengthens the legal regime for the permanent site. First, it qualitatively increases the real security of the IOC by raising the cost to Greece of abrogation of the Bilateral Agreement by Greece. Participants in the multinational group of Guarantors could include various official creditor and guaranty agencies and perhaps even the World Bank. "The involvement of lenders from a number of countries and official international institutions should minimize the chances of arbitrary or politically motivated action by the host country ..." (261) The experience of sponsors and creditors of large foreign projects is that "[h]ost governments ... cannot afford to ruin their credit with [these agencies]." (262) The integration of financing thus introduces a potent deterrent to Greece's breach of its obligations to respect the autonomy of the games.
In addition, the integration of the financial arrangements provides a method for selecting the Guarantors. The IOC would simply select a lead bank, preferably from a neutral country like Switzerland, to put together the international lending syndicate. A condition to a bank participation in the syndicate would be the execution of a guaranty contract with its own government and the accession by its government to the Guaranty Treaty.
Finally, the focus of state participation as a Guarantor would be shifted from the political to the economic sphere. The apparatus for concluding the necessary agreements exists in many states. Both the United States and West Germany for example, have investment guaranty treaties with Greece. (263)The guaranty contract may take the form of routine contracts like those made by OPIC with U.S. foreign investors. The decision to guarantee would appear to take the form of a routine economic decision - protection of the foreign investment of nationals with only contingent state liability - rather than a controversial political entanglement.
C. Dispute Resolution and Enforcement
A two-tiered system of dispute resolution and enforcement could be created by provisions in both the Bilateral Agreement and Guaranty Treaty. As a general rule, the IOC and Greece should be given every opportunity to discuss their differences before invoking involvement of the Guarantors. The arbitral provisions of the Treaty would be triggered only if Greece and the IOC failed to resolve their dispute under the procedures set forth in the Bilateral Agreement.
The Bilateral Agreement, like most of the IGO headquarter agreements, (264) should provide that dispute resolution first be attempted by friendly consultation and negotiation between the parties. 1f this fails, then the parties should agree to submit their differences to binding arbitration. Arbitration has the advantage of being flexible, consensual, and generally fair. (265) It is preferable to adjudication in Greek or other municipal courts for a variety of reasons, the most significant being the possibility of national bias and the difficulty of enforcing foreign judgments. (266)
The Bilateral Agreement should specify exactly on what grounds each party can force the other to go to arbitration. These grounds should include only those which go to the heart of the games' integrity, for example, Greece's denial of a visa to a participant accredited by the IOC. The Bilateral Agreement should also provide for the appointment of judges and the arbitral forum. It is typical in the case of headquarters agreements for each party to appoint one arbitrator, to agree on the third or, in the absence of agreement, to consent to appointment by the President of the International Court of Justice." (267)
Once rendered, there is every reason to believe that the award will be enforceable in Greece. Since 1925 the Greek state and Greek state entities have been authorized by statute to enter into binding foreign arbitration with foreign entities. (268) Article 903 of the Greek Code of Civil Procedure provides that "subject to the provisions of international conventions, a foreign arbitral award is ipso jure final and binding ..." (269) Greece is party to a number of bilateral treaties which provide for the enforcement of foreign arbitral awards (270) and has ratified (271) the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (272)
The New York Convention sets fort a number of grounds for legitimate refusal to enforce a foreign arbitral award. (273) The most troubling of these allows a state to deny recognition and enforcement when the award is contrary to public policy. (274) In the case of international agreements, however, courts have uniformly construed "public policy" to mean the international public order, and not purely domestic public policy. (275) There is substantial precedent to suggest that "contractual commitments between a sovereign state and a foreign investor will be enforced against the state by art international arbitral tribunal," (276) and that the state against which that award is rendered will recognize it. (277)
Nonetheless, if a Greek government refused to recognize and abide by the arbitral award made pursuant to the Bilateral Agreement, the IOC would have the additional protection of its sovereign Guarantors. The Guaranty Treaty would specify that (with the exception of a few enumerated extreme actions) the principal event of default under the Treaty is failure to recognize an arbitral award issued pursuant to the Bilateral Agreement. Inter-sovereign binding arbitration pursuant to the Treaty and remedies under international law would, therefore, be triggered only upon failure of the dispute resolution mechanism set forth in the Bilateral Agreement.
The drafters of the Treaty will have a wide variety of possible remedies from which to choose. For example, default by Greece under the Treaty could trigger a substantial financial penalty sufficient to allow re-establishment of the games elsewhere. Since any outstanding debt would accelerate upon default, that amount would be immediately due and payable by Greece. Upon its failure to pay, the Guarantors would fulfill their obligation to the lenders and then proceed against Greek assets in their respective jurisdictions. Additionally, the Guarantors would have undertaken to recognize the standing of the IOC to proceed against Greek assets in their jurisdictions, and the IOC would pursue its claim for the value of the facilities and damages suffered by the Olympic movement.
The basic plan described here is necessarily incomplete. It is not the purpose of this article to identify an exact contractual structure or to propose carefully integrated contractual provisions. Instead, the task has been to suggest those factors which are most relevant to the integrity of the permanent site plan and to demonstrate the tremendous flexibility of the legal tools at the disposal of its drafters.
The Olympic Congress may not adopt the permanent site plan in the near future. But eventually, its compelling logic will defeat the dead weight of sentimental adherence to Baron de Coubertin's original scheme. Whenever the decision is made, the ability of lawyers to create a legal regime responsive to the functional needs of a permanent site will be a key factor in that decision. The present exercise reveals that, despite the impossibility or impracticality of many of the regimes mentioned by proponents and despite the formidable doctrinal obstacles still encountered by NGOs like the IOC, the narrowlydefined autonomy which is required can be achieved by the imaginative use of a combination of traditional public and private international law tools.
The Legal Regime for a Permanent Olympic Site *
* 15(1) New York University Journal of International Law and Politics (Fall 1982) pp. 1-53 (author's permission).
** Member, New York Bar; J.D., University of Virginia, 1981. The author gratefully acknowledges the assistance of Derk W, Bowett, QC., President, Queens' College, Cambridge, under whose supervision this article was prepared. Journal of International Law and Politics, Vol. 15, Fall 1982, No, 1.
(1) C. Jenks, The Headquarters of International Institutions, A Study of Their Location and Status 75 (1945) [hereinafter "Jenks").
(2) This article sets forth the basic history and policy goals of the permanent site proposal. See notes 5-36 and accompanying text infra. Its purpose, however, is not to analyze all of the policy questions, but simply to address one aspect of the proposal, the legal regime for such a site. There may be a variety of non-legal grounds on which the permanent site proposal can e evaluated which are not discussed here.
(3) The legal capacity of the International Olympic Committee (IOC) to conclude agreements cognizable under international law is a fundamental issue. See notes 157-212 and accompanying text infra.
(4) The proposal made herein depends on the guarantee by a number of sovereign States of both the privileges of the IOC under a bilateral agreement with Greece and its debt. See notes 242-63 and accompanying text infra.
(5) M. Finley & H. Pleket, The Olympic Games: The First Thousand Years 14-15, 22-28 (1976) [hereinafter "Finley & Pleket"]. See generally J. Kieran & A. Daley, The Story of the Olympic Games: 776 B.C,-1960 AD. (1936).
(6) Finley & Pleket, supra note 5, at 22-23. "Games everywhere were managed by local authorities, not by an international committee, and the weaker that authority the less the risk that the prestige of a great festival would enhance its political power." Id.
(7) See Finley & Pleket, supra note 5, at 41, 98.
(8) Id. at 98.
(10) Id at 1-5.
(11) See R, Mandell, The First Modern Olympics 84-91 (1976) [hereinafter "Mandell"]. The games were revived after a gap of about l500 years. See generally de Coubertin, Le retablissement des jeux olympiques, Revue de Paris, at 170 (June 15, 1894), translated and reprinted in The Re-essablishment of the Olympic Games, 19 The Chautauquan 696 (1894).
(12) Mandell, supra note 11, at 89.
(13) De Coubertin is quoted as arguing that if held permanently in Greece the games "would be Olympic, but we fear, not international." J. Lucas, The Modern Olympic Games 48 (1980) [hereinafter "Lucas"].
(14) Mandell, supra note 11, at 89. Revenues which now result from sale of television rights and gate receipts would provide a substantial income to the 100, making construction and operation of a permanent site by the IOC financially feasible.
(15) The first modern games in 1896 were held in Athens, not Olympia, for logistical reasons only. The lack of convenient transportation and communication facilities at Olympia made revival at the original site impossible. Finley & Pleket, supra note 5, at 4.
(16) Lucas, supra note 13, at 48. In his parting toast to visiting athletes, King George of Greece announced his hope "[t]hat our guests, who have honored us with their presence, will select Athens as the peaceful meeting place of all nations, as the stable and permanent seat of the Olympic Games." Mandell, supra note 11, at 152.
(17) Mandeil, supra note 11, at 154.
(18) Lucas, supra note 13, at 48; Mandell, supra note 11, at 154-55.
(19) Mandeli, supra note 11, at 170. As a result, "[i]n the early years he struggled against proposals to freeze the location of the modern Olympics in Greece, Sweden, or Switzerland." Id.
(20) Lucas, supra note 13, at 38-40.
(21) id. at 212.
(22) These impediments include host state attempts to prevent participation by certain athletes, use of the games for purposes of political propaganda, and boycotts by other states provoked by the policies or actions of the host. See, e.g., R. Mandell, The Nazi Olympics (1971). The best primary source material for twentieth-century political controversy is the archive of Avery Brundage's papers at the University of Illinois, Champaign- Urbana. See generally R. Espy, The Polities of the Olympics Games (1979) (hereinafter "Espy"; B. Henry, An Approved History of the Olympic Games (1948).
(23) See Vlachos, Return the Olympics to Greece Permanently. They Started There, N.Y. Times, Aug. 12, 1979, [section] 4, at 21, col. 1 [hereinafter "Vlachos"].
(24) Proponents of the proposal contemplate a profit-making Olympic center used for recreation and a variety of international sporting events between Olympic games. The site also would include the IOC headquarters and archives, and the Olympic Academy, an international training center for sports medicine, technology, and administration. See, e.g., Lucas, supra note 13, at 222.
(25) Under the present system, the state in which the games are held is the "host" state. When referring to the state in which the permanent site would he located, the term "forum" state is used. In the later instance, the IOC is the "host."
(26) See Lucas, supra note 13, at 173, 213-14.
(27) For example, Professor John Lucas of the University of Pennsylvania has argued persistently for central Switzerland or western Scandinavia. See Letter from John R. Lucas to Frederic C. Rich (Sept. 20, 1980) (available in author's files).
(28) The Winter Games would be established in another location with a juridically identical status. All of the legal arguments made herein apply equally to the permanent winter site.
(29) Furthermore, Olympia is conveniently located in the western Peloponnese, only ten miles from the sea. The area is pastoral, enjoying a mild climate. The ancient remains could be protected, while providing a dramatic backdrop to the modern Olympic village. See Finley & Pleket, supra note 5, at 14; Vlachos, supra note 23. Designs for permanent facilities at Olympia were completed by architects in separate projects at Princeton and Cambridge Universities. See Bernstein, Designing a Permanent Olympic Site, Princeton Alumni Weekly, May 23, 1977, at 9.
(30) In 1976 Prime Minister Karamanlis proposed a return of the games to Greece at the close of the 2lst Olympiad in Montreal. See Letter from Prime Minister Karamanlis to Lord Killanin, President, 100 (July 31, 1976), reprinted in Greece Proposed as Permanent Venue of the Olympic Games, Embassy of Greece Press Release (July 31, 1976).
(31) The proposal was first made by Mr. Karamanlis in a speech in Athens on January 7, 1980. Greece Renews Permanent Olympic Site Proposal, Embassy of Greece Press Release No. 2/80, Jan. 9, 1980. The offer was made official in a letter to Lord Killanin dated February 2, 1980, The Prime Minister wrote:
Greece, perhaps more than any other country, is justifiably concerned by the ever-growing tendency to use the Olympic games for political and generally non-athletic purposes. Political, racial and ideological conflicts are rekindled every time the choice of a site for the game arises ... The Olympic idea ... has become a means of political rivalry and economic aspirations. It has also become a monopoly for a few countries, since small countries do not have the means to claim the honour and the responsibility. Letter from Prime Minister Karamanlis to Lord Killanin, President, IOC (Feb. 2, 1980), reprinted in Olympic Games: Permanent Site Offered by Greece at Ancient Olympia, Embassy of Greece Press Release (undated). See Back to Olympia, The Economist, Feb. 23, 1980, at 54 [hereinafter "Back to Olympia"].
(32) The Prime Minister of Australia, the foreign ministers of West Germany and the United Kingdom, the President of the European Parliament, and the Secretary General of the Council of European Communities all have gone on record in support of the plan. The Olympic Idea, Greece, Spring, 1980, at 2 (publication of the Greek National Tourist Organization); Olympic Homecoming, Greece, Feb.-Mar. 1980, at 1; World Support Grows, Homecoming of the Olympics?, Greece, Jan. 1980, at 1, 3.
(33) "I call upon all nations to join in supporting a permanent site for the Summer Olympics in Greece, and to seek an appropriate permanent site for the Winter Olympics." Letter from President Carter to Robert Kane, President, U.S. Olympic Committee (Jan. 20, 1980), reprinted in 16 Weekly Comp. of Pres. Doe. 106 (Jan. 19, 1980).
(34) H.R. Con. Res. 249, 96th Cong., 2d Sess. (1980). See also 126 Cong. Rec. S499 (daily ed. Jan. 29, 1980) (remarks and reprinted statement of Sets. Bradley). The first step toward an Olympics freer of politics is to offer full support for permanent placement of the games in their ancient birthplace, the country of Greece. Urging the International Olympic Committee to establish a permanent site in Greece is a constructive approach. The permanent home would come to be identified with the Olympics as an institution. The Olympics no longer would be identified with the nationalistic displays of temporary hosts. Id. at S501.
(35) Olympic Homecoming, Greece, Apr.-May 1980, at 2. The survey was a Gallup poll.
(36) Washington Post, Feb. 20, 1981, at E1. A commission to investigate the Greek proposal was established and is headed by Louis Guirandou-N'Diaye, Ivory Coast Ambassador to Canada and IOC member for the Ivory Coast. Letter from Julian K. Roosevelt, IOC Member for the VS. to Frederic C. Rich (Sept. 18, 1980) (available in author's files).
At its 84th meeting in Baden-Baden in October 1981, the IOC deferred its decision on the permanent site proposal. The IOC resolved in part:
"Considering all aspects and, above all, the course of events during the next Olympiads for which the IOC has taken a commitment, the Greek proposal is of extreme importance and will be subject of a detailed study in which the IOC will certainly be actively involved." United Press International (Oct. 1, 1981).
(37) See notes 52-69 and accompanying text infra. Simply establishing a permanent site without taking measures to: (1) establish the IOC rather than the forum country as the host, or (2) prevent that country's interference with the games, would be no improvement over the present system, except with regard to construction expenses saved.
(38) The most official statement on this issue appears in the 1980 Karamanlis letter to Lord Killanin: This site could be characterised as neutral ground with an international agreement which would safeguard the rights to the installations, establish the inviolability of the area and recognize the decisive role of the International Olympic Committee in its athletic competencies. And, in any event, Greece would be prepared to discuss the arrangements the Committee would deem necessary for this purpose. Letter from Prime Minister Karamanlis to Lord Killanin, President, IOC (Feb. 2, 1980), reprinted in Olympic Games: Permanent Site offered by Greece at Ancient Olympia, Embassy of Greece Press Release (undated).
(39) Back to Olympia, supra note 31, at 60. The Economist also reported that Greece was prepared to "cede sovereignty" over the site at Olympia. Id.
(40) The Olympic Idea, Greece, Spring, 1980, at 2 (publication of the Greek National Tourist Organization).
(41) Id. "[T]here is no suggestion that Greece would exercise any kind of ional control." Id.
(42) This article assumes that Greece will be the permanent forum state, and uses "Greece" and "forum State" interchangeably. The argument apply, however, to any forum State selected and to the state in which the permanent Winter Games site is located.
(43) Some options are analyzed only because they have been mentioned in public commentary on the permanent site plan. See notes 39-41 and accompanying text supra.
(44) 1 Procedural Aspects of International Law Institute, The Theory and Practice of Governmental Autonomy 2-3 (Final Report for the Department of State 1980) [hereinafter "PAIL Study"].
(46) Hannum & Lillich, The Concept of Autonomy of International Law, 74 Am. J, Int'l L. 858, 860 (1980). The PAIL Study summarized by Hannum & Lillich identified three principal categories of autonomous entities: federal states, internationalized areas and associated states. Id. at 859.
(47) The PAIL Study did note a variety of precedents for limited autonomy. Limited cultural or religious independence was granted in the cases of Greenland, the Belgian linguistic communities, the Aland Islands, and the millet system of the Ottoman Empire. PAIL Study, supra note 44, at 2. These examples of limited or restrictive autonomy still involve governmental functions rather than the essentially non-governmental functions which must be guaranteed to the IOC.
(48) Another such theme is the preferability of choosing a device or structure which not only affords technical legal protection, but serves to eliminate the motives for parties to act in the undesired manner, For example, arty arrangement which, by giving Greece some stake in the unimpeded operation of the games, makes the political or economic consequences of interference high, is especially desirable. 5cr text accompanying notes 260-62 infra.
(49) See generally Fedder, T/te Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization. 9 Am. U.L. Rev. 60 (1960).
(50) Brandon, The Legal Status of the Premises of the United Nations, 28 Brit. Y.B. int'l L. 90, 94 (1951) [hereinaher "Brandon"].
(52) Examples of boycotts include the 1956 withdrawal of Switzerland and the Netherlands in protest of the Soviet invasion of Hungary; North Korea's sudden pull-out from Tokyo in 1964; the Third World boycott of Montreal in 1976 because of the participation of New Zealand, which maintained close sporting ties with South Africa; and the Western boycott of Moscow in 1980. See 126 Cong. Rec. S499 (daily ed. Jan. 29, 1980) (statement of Sen. Bradley).
(53) Economic advantage should not exceed that advantage naturally incident to the spending of spectators every four years en route to and around the permanent site.
(54) See note 25 supra.
(55) As anticipated by Senator Bradley, "The permanent home would come to be identified with the Olympics as an institution. The Olympics no longer would be identified with the nationalistic displays of temporary hosts." 126 Cong. Rec. S501 (daily ed. Jan. 29, 1980).
(56) Such embarrassment might be felt, for example, by the People's Republic of China upon the participation of Taiwan.
(57) Examples might include a nation's foreign policy with regard to South Africa or Israel.
(58) An example would he when an element of the games' conduct is a political issue domestically.
(59) The threats to the integrity and neutrality of the games at a permanent site are analogous to the factors of political risk faced by any enterprise doing business in a foreign country. See generally P. Nevitt, Project Financing 113 (1978).
(60) Rule 8 of the Olympic Charter provides in part:
Only citizens or nations of a country may represent that country and compete in the Olympic Games ... In the final resort, questions in dispute shall be settled by the Executive Board.
The expression "country" wherever used in these Rules shall mean any country, state, territory or part of territory which in its absolute discretion is accepted by the IOC as constituting the area of jurisdiction of a recognized NOC [National Olympic Committee]. Olympic Charter, Rule 8 (prov. ed. 1980).
(61) There are numerous historical instances of host state attempts to restrict access. In 1956, Australia did not recognize the Soviet Union and wished to ban its athletes. In 1968, NATO regulations did not permit France to issue visas to East Germans. In 1972, U.N. sanctions seemed to require West Germany to ban Rhodesian competitors. In each of these instances, however, "a conflict of laws was settled by the waiver of municipal visa requirements and the issuance of special clearance papers." Nafziger, The Regulation of Transnational Sports Competition: Down From Mount Olympus, 5 Vand.J. Transnat'l L. 180, 203 (1971) [hereinafter "Nafziger"]. See also Comment, Political Abuse of Olympic Sport: DeFrantz v. United States Olympic Committee, 14 N.Y.U, J. Int'l L. & Pol. 155 (1981).
(62) The concept of the inviolability of the premises of international institutions in international law evolved from the fiction of extraterritoriality with regard to legation premises. Jenks, supra note 1, at 41.
(63) Since the IOC will, as a practical matter, depend on Greek personnel for its essential security services, it is equally important that those personnel be available at the request of the IOC.
(64) The Olympic organization would not require immunity from judicial process with respect to ordinary commercial matters.
(65) These personal immunities can be limited to those in respect to official acts, and should extend to Greek nationals serving in the international Olympic organization.
(66) "Historically and technically [the] exemption of official international funds from national taxation derives from the sovereign immunities of the States contributing to such funds, but the essential justification for it rests on broad grounds of national public policy." Jenks, supra note 1, at 43 (quoting Jenks, Some Legal Aspects of the Financing of International Institutions, The Grotius Society: Problems of Peace and War 87, 122 (1943)). The latter justification would apply, then, to an NGO like the IOC.
(67) Television rights are a major source of revenue and would probably be pledged in part to the creditors to secure financing for the Olympic center. See text accompanying notes 259-63 infra. Rule 51 of the Olympic Charter provides in part: "The IOC may, subject to payment, grant the right to broadcast and/or distribute reports on the Olympic Games. The total amount ... shall be paid ... to the IOC which shall distribute [it], in accordance with the requirements set Out in Rule 21." Olympic Charter, Rule 51 (prov. ed. 1980).
(68) The Charter provides: In order to ensure the fullest news coverage and the widest possible audience for the Olympic Games, the necessary steps shall be taken to accredit the representatives of the different mass media. ... The Executive Board of the IOC, whose decision shall be final and binding, reserves the right to grant or to refuse accreditation in the case of any applicant or to withdraw any accreditation already granted. Olympic Charter, Rule 51 (prov. ed. 1980).
(69) See notes 50-51 and accompanying text supra.
(70) See R. Rodgers, Facilitation Problems of International Associations 39 (1960).
(71) See notes 147-56 and accompanying text infra.
(72) See generally E. Adair, The Extraterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929).
(73) It is a fiction because, in the case of diplomats, "[l]'agent diplomatique est cense n'avoir jamais quitte son propre pays." P. Cahier, Etude Des Accords de Siege Conclus Entre les Organisations Internationales et les Etats ou Elles Resident 194 (1959).
(74) Kunz, Privileges and Immunities of International Organizations, 41 Am. J. Int'l L. 828, 836 (1947) [hereinafter "Kunz"] See also H. Grotius, De Jure Belli Ac Pacis Libri, Tres, chap, XVIII (1689).
(75) See, e.g, W. Fishel, The End of Extraterritoriality in China (1952); G. Keeton, The Development of Extraterritoriality in China (1928). The best general survey of the extraterritoriality concept is G. Keeton, Extraterritoria - lity in International and Comparative Lam, 72 Recueil des Cours 283 (1948: 1).
(76) See, eg., Treaty of Berlin, July 13, 1878, arts. 53-56, reprinted in 8 Ministere des Affairs Etrangeres, Documents Diplomatiques (1878). Article 53 grants the European Danube Commission "une complete independance de. l' autorite territoriale." Id art. 53.
(77) But see C. Jenks, The Proper Law of International Organisations 139 (1962) [hereinafter "Jenks, Proper Law"]. Jenks acknowledges the view that extraterritoriality is a harmful fiction and thus that "the concept of extraterritoriality is either a mistake to be charitably ignored or an idle courtesy which can safely be assumed to be meaningless." Id. He questions this view: the extraterritoriality fiction "may be practically more satisfactory to both the international organisation and the host State than a functional formula which, while rationally more defensible, has not yet stood in the sarne manner the test of experience." Id.
(78) Brandon, supra note 50, at 96-97. Local law and jurisdiction apply except as otherwise provided. Id.
(79) See note 39 and accompanying text supra.
(80) See generally Jenks, supra note t, at 44-53 (discussion of advantages and disadvantages of granting to the headquarters of international institutions international status within national territory).
(81) Treaty Establishing the Vatican State, Feb. 11, 1929, Holy See - Italy, art. 4, 130 Brit. & For. State Papers 793 (1929). See generally M. Falco, The Legal Position of the Holy See Before and After the Lateran Agreements (1935); 8. Williamson, The Treaty of the Lateran (1929); La Briere, La condition juridique de 1a cite du Vatican, Recueil des Cours 115 (1930: III).
(82) I. Brownlie, Principles of Public International Law 67 (3d ed. 1979) [hereinafter "Brownlie"]. See M. Brazzola, La Cite Du Vatican Est-Elle un Etat? (1932).
(83) It is the smallest "state," with a nominal population of approximately 1000. J. Crawford, The Creation of States in International Law 154 (1979) [hereinafter "Crawford"].
(85) Jenks, supra note 1, at 72.
(86) See id. at 45.
(87) Brownlie, supra note 82, at 372.
(88) Convention Respecting an Extension of Hong Kong Territory, June 9, 1898, China-Great Britain, 186 Parry's T.S. 310, 32 Martens Nouveau Recueil 2d 89 (1905). See generally L. Mills, British Rule in Eastern Asia 373 (1942).
(89) Brownlie, supra note 82, at 372.
(90) Id. at 115-16.
(91) Agreement for the Lease of Lands for Coaling and Naval Stations, Feb. 16-23, 1903, United States-Cuba, art. III, 192 Parry's T.S. 429, 430. See generally Montague, A Brief Study of Some of the International Legal and Folitical Aspects of the Guantanamo Bay Problem, 50 Ky. L.J. 459 (1962).
(92) See notes 157-212 and accompanying text infra.
(93) Brownlie, supra note 82, at 116. "[T]he grantor' bas a right to revoke the 'contractual license,' and, after a reasonable time has elapsed, force may be employed to evict the trespasser." Id.
(94) See text accompanying note 86 supra.
(95) Brownlie, supra note 82, at 63-64.
(96) See Rules of Procedure of the International Mixed Court, reprinted in A. Kotenev, Shanghai: Its Mixed Court and Council 321 (1925). See generally Hudson, The Rendition of the International Mixed Court at Shanghai, 21 Am. J. Int'l L. 451 (1927).
(97) ProtectorateTreaty, Mar. 30, 1912, France- Morocco, 106 Brit. & For. State Papers 1023, 216 Parry's T.S. 20. The convention was revised in 1923. Convention regarding the Organisation of the Statute of the Tangier Zone, Dec. 18, 1923, France- Great Britain-Spain, 28 L.N.T.S. 541. See generally G. Stuart, The International City of Tangier (2d cd. 1955) [hereinafter "Stuart"]; Hudson, The International Mixed Court of Tangier, 21 Am. J. Int'l L. 231 (1927).
(98) See Statute of the Sanjak of Alexandretta, May 29, 1937, 18 League of Nations O.J. 580 (1937). See generally Basdevant, La question du Sandjak d'Alexandrette et de d'Antioche, 19 Revue dc Droit International et de Legislatiori Comparee 661 (1938).
(99) See Treaty of Versailles, June 28, 1919, arts. 45-50, 225 Parry's T.S. 189, 213-15, reprinted in Major Peace Treaties of Modern History 1648-1967, at 1296-99 (F. Israel cd. 1967). See generally M. Florinsky, The Saar Struggle (1934).
(100) Convention for Establishing a Conventional Regime in Upper Silesia, May 15, 1922, Germany-Poland, 118 Brit. & For. State Papers 365. See generally G. Kaeckenbeeck, The International Experiment of Upper Silesia (1942).
(101) See Convention Concerning the Territory of Memel, May 8, 1924, 29 L.N,T.S. 85 (1924). See generally The Status of the Memel Territory, League of Nations Doc. C.159 M.39 1924 VII (1924).
(102) Treaty of Versailles, June 28, 1919, arts, 100-08, 225 Parry's T.S. 189, 246-49, reprinted in Major Peace Treaties of Modern History 1648-1967, at 1338-41 (F. Israel ed. 1967). See generally J. Makowski, La situation juridique du territoire de la Ville Libre de Dantzig (1925).
(103) See Italian Peace Treaty, Feb. 10, 1947, Italy-Allied Powers, Annex VI, Permanent Statute of the Free Territory 0f Trieste, 49 U.N.T.S. 72, reprinted in Major Peace Treaties of Modern History 1648-1967, at 2479-90 (F. Israel ed. 1967). See generally M. Ydit, Internationalised Territories from the "Free City of Cracow" to the "Free City of Berlin" 231-72 (1961) [hereinafter "Ydit"].
(104) See G.A. Res. 181 (II), UN. Doe. A/519, (1947). The resolution called for the creation of a "special international regime" under the direct control of the Trusteeship Council. See generally Ydit, supra note 103, at 273-315. The Trusteeship Council prepared a "Draft Constitution" for Jerusalem. See Question of an International Regime for the Jerusalem Area and Protection of the Holy Places, 5 UN. GAOR Supp. (No. 9), UN. Doc. A/1286 (1950).
(105) Brownlie, supra note 82, at 55. See Ydit, supra note 103, at 21.
(106) 106, Ydit, supra note 103, at 50-51, 71-72.
(107) Free City of Danzig and the International Labour Organisation (Pol. v. Free City of Danzig), 1930 P.C.I.J., ser. B, No. 18 (Advisory Opinion of Aug. 24); Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Pol. v. Free City of Danzig), 1932 P.C.I.J., ser. Af B, No. 44, at 23-24 (Advisory Opinion of Feb. 4).
(108) See note 97 supra.
(109) On November 14, 1911, Sir Edward Grey wrote to the French minister in London that "just as France stands for the Sultan's authority in the French zone, and Spain in the Spanish zone, so the Treaty powers collectively shall stand for the Sultan's authority in Tangier and its district." Documents Diplomatiques Francais (1871-1914), 3d Series (1911- 1914), Vol. No. 348, quoted in Stuart, supra note 97, at 59-60.
(110) Stuart, supra note 97, at 182.
(111) Ydit, supra note 103, at 21.
(112) See id. at 11.
(113) See, e.g., Crawford, supra note 83, at 160.
(114) See, e.g., Agreement Regarding the Headquarters of the United Nations, June 26, 1947, United States-United Nations, 61 Stat. 3416, T.I.A.S, No. 1676 (entered into force Nov. 21, 1947) thereinafter "U.N. Headquarters Agreement]; Agreement Regarding the Headquarters of the International Atomic Energy Agency, Dec. 11, 1957, International Atomic Energy Agency-Austria, 339 U.NT.S. 152 (entered into force Mar. 1, 1958) [hereinafter "IAEA Agreement"]; Agreement Regarding the Headquarters of the Food & Agriculture Organization, Oct. 31, 1950, FAO-Italy, U.N. Doc. ST/LEG/SER.B/1 1(1961), reprinted in II Legislative Texts and Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations 187) [hereinafter "FAQ Agreement"]; Agreement Concerning the Legal Status of the International Labour Organisation after the Dissolution of the League of Nations Organization, Mar, 11, 1946, ILO-Switzerland, 15 U.N.T.S, 377 [hereinafter "ILO Agreement"]. These agreements generally are implemented through municipal legislation by the host state. See D. Bowett, The Law of International Institutions 310 (3d ed. 1975); note 152 and accompanying text infra.
(115) But see FAO Agreement, supra note 114, [section] 6(a) (Italy "recognizes the extraterritoriality of Headquarters Seat ..."); ILO Agreement, supra note 114, art. 4 ("the Swiss Federal Council recognises the extraterritoriality of the grounds and buildings of the International Labour Organisation and of all buildings occupied by it in connection with meetings of the International Labor Conference ...")
(116) Kunz, supra note 74, at 850. See UN. Headquarters Agreement, supra note 114.
(117) Jenks, Proper Law, supra note 77, at 137.
(118) U.N. Headquarters Agreement, supra note 114, [section] 7(a). See Brandon, supra note 50, at 97-98.
(119) IAEA Agreement, supra note 114, [section] 7.
(120) FAQ Agreement, supra note 114, [section] 15.
(121) E.g., UN. Headquarters Agreement, supra note 114, [section] 7(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."). See Kunz, supra note 74, at 850.
(122) Regulations so authorized are those "for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions." U.N. Headquarters Agreement, supra note 114, [section] 8. See IAEA Agreement, supra note 114, [section] 8(a).
(123) See Brandon, supra note 50, at 113. See also Convention on the Privileges and Immunities of the Specialized Agencies, U.N. Doe. ST/LEG./SER.B/1 1, reprinted in II Legislative Texts and Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations 101 (1961).
(124) See Brandon, supra note 50, at 113.
(125) See notes 43-69 and accompanying text supra.
(126) See, e.g., U.N. Headquarters Agreement, supra note 114, [section] 11 ("The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district The appropriate American authorities shall afford any necessary protection to persons while in transit to or from the headquarters district."); FAO Agreement, supra note 114, [section] 22; IAEA Agreement, supra note 114, [section][section] 27(a), 28.
(127) See, e.g., UN. Headquarters Agreement, supra note 114, [section] 11; FAQ Agreement, supra note 114, [section] 22(a)(vi); IAEA Agreement, supra note 114, [section] 27(a)(ix).
(128) U.N. Headquarters Agreement, supra note 114, [section] 13 (free transit guarantee applies to persons "irrespective of their nationality.").
(129) U.N. Headquarters Agreement, supra note 114, [section] 12.
(130) Brandon, supra note 50, at 101-03.
(131) Id. See, e.g., Agreement Regarding the Headquarters of the International Civil Aviation Organization, Apr. 14, 1951, ICAO-Canada, [section] 4(2), 96 U.N.T.S. 156 (entered into force May 1, 1951) [hereinafter "ICAO Agreement"}; FAQ Agreement, supra note 114, [section][section] 7, 17, 18; ILO Agreement, supra note 114, art. 6, para. 2; U.N. Headquarters Agreement, supra note 114, [section] 9(a); IAEA Agreement, supra note 114, [section] 9(a).
(132) The most common exception to this principle disallows use of the site for asylum. See, e.g., ICAQ Agreement, supra note 131, [section] 4(3); FAQ Agreement, supra note 114, [section] 7(b); UN. Headquarters Agreement, supra note 114, [section] 9(b); IAEA Agreement, supra note 114, [section] 9(b). Cf. FAQ Agreement, supra note 114, [section] 33; ILO Agreement, supra note 114, art. 25.
(133) FAO Agreement, supra note 114, [section] 8(a); U.N. Headquarters Agreement, supra note 114, [section] 16(a); IAEA Agreement, supra note 114, [section] 10. See Agreement Regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization in the French Territory, July 2, 1954, UNESCO-France, art. 17, 357 U.N.T.S. 3 (entered into force Nov. 23, 1955) [hereinafter "UNESCO Agreement"].
(134) See, e.g., UN. Headquarters Agreement, supra note 116, [section] 17 ("necessary public services" explicitly include electricity, water, gas, postal service, telephone, drainage, collection of refuse, fire protection, and snow removal); IAEA Agreement, supra note 114, [section] 12; FAQ Agreement, supra note 114, at [section] 10.
(135) See, e.g., ICAO Agreement, supra note 131, [section] 2; IAEA Agreement, supra note 114, [section] 16; UNESCO Agreement, supra note 133, [section] 1.
(136) FAO Agreement, supra note 114, [section] 16.
(137) See, e.g., ICAQ Agreement, supra note 131, [section] 3.
(138) In some states the restrictive standard applied to foreign sovereigns is not also applied to IGOs. Compare Foreign Sovereign Immunities Act of 1976, 28 U.S.C. [section] 1605(a)(2) (1976) with International Organizations Immunities Act of 1945, 22 U.S.C. [section] 288a(b) (1976). But cf. Broadbent v. Organization of Am. States, 628 F.2d 27 (D.C. Cir. 1980). See generally Recent Developments, 20 Va. J. Int'l L. 913 (1980).
(139) See, e.g., FAO Agreement, supra note 114, [section][section] 19, 20; IAEA Agreement, supra note 114, [section][section] 22, 42; UNESCO Agreement, supra note 133, art. 15.
(140) See, e.g., ICAO Agreement, supra note 131, [section] 8; 110 Agreement, supra note 114, art, 11; IAEA Agreement, supra note 114, [section] 23.
(141) See notes 259-63 and accompanying text supra,
(142) In the United States, for example, nonresident holders of debt obligations are subject to a 30% withholding tax. I.R.C. [section][section] 1441-1442 (1976).
(143) UN. Headquarters Agreement, supra note 114, [section] 4. See IAEA Agreement, supra note 114, [section] 4.
(144) See, e.g., ICAO Agreement, supra note 131, [section] 9 ("not less favourable"); FAQ Agreement, supra note 114, [section] 11; IAEA Agreement, supra note 114, [section] 13; UNESCO Agreement, supra note 133, art. 10 ("at least as favourable").
(145) See, e.g., ICAQ Agreement, supra note 131, [section] 10; IAEA Agreement, supra note 114, [section] 15; UNESCO Agreement, supra note 133, art. 11; ILO Agreement, supra note 114, art. 13.
(146) See, e.g., ICAO Agreement, supra note 131, [section] 27(a): U.N. Headquarters Agreement, supra note 114, [section] 11. See also FAQ Agreement, supra note 114, [section] 22.
(147) See Reparations for Injuries Suffered in the Service of the United Nations (The Reparations Case), 1949 I.C.J. 174, 178- 79 (Advisory Opinion of Apr. 11).
(148) See P. Cahier, Etude des accords de siege conclus entre les organisations internationales et les etats ou elles resident 208 (1959) [hereinafter "Cahier"]. But sea Kunz, supra note 74, at 848. Kunz argues that the accords de siege are not real treaties. With reference to pre-U.N. headquarters agreements, specifically the modus vivandi of 1926 between Switzerland and the League of Nations, 7 League of Nations O.J. 1422 (1926), Kunz argues; "The legal nature of such [an] agreement is doubtful; it is not an international treaty; both parties can al any time renounce it in part or as a whole. It leads only to an agreement with a single Member State and 'fails to afford a solid legal foundation for the permanent independence of the international organization.' " Kunz, supra note 74, at 848 (quoting C. Jenks, The Headquarters of International Institutions, A Study of Their Location and Status 46(1945)). Cahier rejects this argument which relies on the possibility of unilateral modification, calling it "une distinction de forme plutot que de fond. Si les accords de siege peuvent etre revises, c'est en vertu d'une clause de revision inseree dans l'accord." Cahier, supra note 148, al 208. Modification clauses were inserted in the agreements relied upon by Kunz. Article 14 of the 1926 modus vivandi provides in part, "[the] rules of the modus vivendi can only be modified by agreement between the organisations of the League of Nations and the Federal Political Department. If, however, an agreement cannot be reached, it shall always be open to the Federal Government or to the organisations of the League of Nations to denounce the whole or part of the rules of the modus vivendi. "7 League of Nations O.J. 1422, 1424 (1926). This clause, however, is rare in headquarters agreements concluded after the Second World War.
(149) Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 26, UN. Doc. No. A/CONF. 39/27 (entered into force Jan. 27, 1980), reprinted in 8 I.L.M. 679, 690 (1969) ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith."). See generally Hassan, Good Faith in Treaty Formation, 21 Va. J. Int'l L. 443 (1981).
(150) UN. Charter, art. 104. See also Agreement Establishing the Inter- American Development Bank, Apr. 8, 1959, art. XI, [section] 1, reprinted in II Legislative Texts & Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations 387, Doe. ST/LEG! SER. B/ll (1961) ("[T]he status, immunities, and privileges set forth in this article shall be accorded to the Bank in the territories of each member."); Statute of the International Atomic Energy Agency, Oct. 26, 1956, art. 15, 276 U.N.T.S. 4 ("The Agency shall enjoy in the territory of each member ... such privileges and immunities as are necessary for the exercisc of its functions."); Constitution of the United Nations Education, Scientific and Cultural Organisation (UNESCO), Nov. 16, 1945, art. 12, 4 U.N.T.S. 275, 292 (UN. Charter obligations extended to UNESCO members); Convention on the Intergovernmental Maritime Consultative Organization, Mar. 6, 1948, arts. 50, 51, 289 U.N.T.S. 48, 70; Convention of the World Meteorological Organization, Oct. 11, 1947, art. 27, 77 U.N.T.S. 144, 162; Constitution of the World Health Organization, July 22, 1946, arts. 66-68, 14 U,N.T.S. 186, 200- 01; Constitution of the Food and Agriculture Organization of the United Nations, Oct. 16, 1945, art. 15, [1946-47] U.N.Y.B. 693, 696; Convention on International Civil Aviation, Dec. 7, 1944, art. 47, 15 U.N.T.S. 295, 328 (obligation to recognize "legal capacity as may be necessary for the performance of its functions"); Constitution of the International Labour Organisation, art. 40, 15 U.N.T.S. 40, 102 (amended as of Oct. 9, 1946); Charter of the Organization of American States, Apr. 30, 1948, art. 103, 119 U.N.T.S. 48, 88 ("The Organization of American States shaB enjoy in the territory of each Member such legal capacity, privileges and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes"); [i]d. art. 105 ("The juridical status of the Inter- American Specialized Organizations and the privileges and immunities that should be granted to them ... shall be determined in each case through agreements between the respective organizations and the Governments concerned.").
(151) E.g., Agreement on the Privileges and Immunities of the International Energy Agency, July 1, 1959, reprinted in II Legislative Texts & Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations 357, Doe. ST/LEG/SER. B/11 (1961); Charter of the Organization of American States, Apr. 30, 1948, 119 U.N.T.S. 48; Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, 33 U.N.T.S, 262.
(152) Such municipal legislation either applies generally to a group of public international organizations, e.g., International Organisations (Immunities and Privileges of the Council of Europe) Order in Council, 1950, 14 Geo. 6, ch. 14 (UK.); Act No. 72 of 7 Mar. 1952 Concerning Privileges and Immunities of International Organizations (Denmark), is extended to particular international organizations by regulation or appendix, e.g., International Organizations Immunities Act of 1945, 22 U.S.C, [section] 288a-288f (1976); Diplomatic Privileges and Immunities Act of 1968, No. 36, N.Z. Stat. 309 (1968), or applies to a single organization, e.g., Privileges and Immunities Act (United Nations Act), Can. Rev. Stat. ch. 219, [section] 1(1952); World Health Organization Act (Protection Act), No. 41, Ghana (1958).
(153) If an agreement between Greece and the IOC were implemented either through Greek legislation or as a bilateral contract governed by Greek law, it would not afford the IOC the protection it requires. Any municipal statute adopted by Greece could at any time be amended or repealed by the Greek Legislature. A bilateral agreement under municipal law "can accord an international institution a large measure of independence, but [it] will never make it master in its own house ... The contractual arrangements entered into may be honoured when the storm blows, or they may not." Jenks, supra note 1, at 52. See id. at 47; Kunz, supra note 74, at 847 (in the context of a pre-Reparations Case agreement).
(154) A. Fatouros, International Law and the Internationalized Contract, 74 Am. J. Int'l L. 134, 136-37 (1980).
(155) See text accompanying notes 147-49 supra.
(156) See text accompanying notes 213-41 infra.
(157) J. Schneider, Treaty-Making Power of International Organizations 98-99 (1959) [hereinafter "Schneider"].
(158) Jenks, supra note 1, al 39. Jenks adds the caveat that "the conditions under which it may be exercised in a particular state may sometimes properly be governed by the local law." Id.
(159) Friedman, International Public Corporations, 6 Mud. L. Rev, 185, 203 (1942-43) (hereinafter "Friedman"].
(160) Lissitzyn, Territorial Entities Other Than Independent States in the Law of Treaties, 125 Recueil des Cours 1, 13 (1968; III) [hereinafter "Lissitzyn"]. If personality is itself a test for treaty-making capacity, then use of "rights and duties under public international law" as criteria for personality leads to a circular analysis. See also Schneider, supra note 157, al 129-33.
(161) See Lissitzyn, iupra note 160, at 13.
(162) Jenks, supra note 1, at 66.
(163) See Lissitzyn, supra note 160, at 7, 1 1-12. Less-than-state territorial entities like Danzig, see Access to German Minority Schools in Upper Silesia, 1932 P.C.I.J., ser. A/B, No, 44, at 23-25 (Rostworowski, Count, dissenting), and the Saar, see Convention Regulating Air Navigation Between Switzerland and the Saar Territory, Aug. 15, 1928, 81 L.N.T.S. 373; Agreement Respecting Telephone Service Between Great Britain and Northern Ireland and the Saar Territory, via France, Nov. 16, 1928, 92 L.N.T.S. 353, did exercise treaty-making capacity. Cf Payment of Various Serbian Loans Issued in France, 1929 P.C.1.J., ser. A., No. 20, as 41 ("Any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country").
(164) Reparation for Injuries Suffered in the Service of the United Nations (The Reparations Case), 1949 I.C.J. 174, 178- 79 (Advisory Opinion of Apr. 11).
(165) J. Lador-Lederer, International Non- Governmental Organizations and Economic Entities 14 (1963) [hereinafter "Lador-Lederer"].
(166) 1949 I.C.J. 174.
(167) Id. at 178, One commentator states: The growing variety, density and complexity of transnational concerns and interactions increasingly involve legal and administrative actions and their consequences on many different levels. Some of these concerns and interactions may he, and already are, must effectively handled on official levels below that of formal diplomatic relations ... It is not unreasonable to expect the development of new concepts and devices to meet the needs for greater flexibility and less formality in such interactions. Lissitzyn, supra note 160, at 8. One consequence of this extension is that it is no longer possible to suppose that the capacities of the various international persons must be equal. See text accompanying notes 200-01 infra.
(168) "It is not formed for profit ... "Olympic Charter, Rule 11 (prov. ed. 1980).
(169) Lucas, supra note 13, at 137.
(170) Id. at82.
(171) The failure to incorporate or register in the headquarters country is unusual. "La nature juridique des Federations sportives internationales est en general cdle d'associations privees douees de personalite de droit interne dans l'ordrejuridique de l'Etat ou elles siegent." Leyendecker, Les Federations Sportives Internationales dans le Domaine des Organisations Non-Gouvernementales, Annuaire de l'A.A.A. [Yearbook of the Association of Attenders and Alumni of the Hague Academy of International Law] 41, 45 (1972-73) [hereinafter "Leyendecker"].
(172) Lucas, supra note 13, at 136.
(173) See text accompanying notes 188-212 infra.
(174) Espy, supra note 22, at 9.
(175) Olympic Charter, Rule 1 (prov. ed. 1980). The other aims set forth in Rule 1 are "to promote the development of those physical and moral qualities which are the basis of sport," and to "bring together the athletes of the world in the great four-yearly sport festival, the Olympic Games." Id.
(176) Olympic Charter, Rule 3 (prov. ed, 1980). See Leyendecker, supra note 171, at 42.
(177) See L. White, International Non- Governmental Organizations 199 (1951).
(178) Olympic Charter, Rule 12 (prov. ed. 1980).
(179) Id. Rule 24(C).
(180) Id. Rule 45.
(181) Id. Rule 17(C).
(182) Nafgziger, supra note 61, at 181 n. 2.
(183) Id, at 190-91.
(184) Olympic Charter, Rule 23 (prov. ed. 1980).
(185) Id. By-laws to Rules 16 and 23.
(186) Espy, supra note 22, at 16.
(187) Leyendecker, supra note 171, at 48.
(188) See, e.g., Lador-Lederer, supra note 165, at 14-15.
(189) Leyendecker, supra note 171, at 42-43.
(190) See 1 M. Whiteman, Digest of International Law 238 (1973). But see Brownlie, supra note 82, at 69. "There is no general rule that the individual cannot be a 'subject of international law' and in particular contexts he appears as a legal person on the international plane." Id.
(191) Dean, Beyond Helsinki: The Soviet View of Human Rights in International Law, 21 Va. J. Int'l L. 55, 72-74 (1980). See, e.g., W. Gormiey, The Procedural Status of the Individual Before International and Supranational Tribunals 30-31 (1966); H. Lauterpacht, International Law and Human Rights 27-35 (1968).
(192) "[The extension of subject status to individuals] contradicts the very essence of International Law." F. Kozevnikov, International Law: A Textbook for Use in Law School 89 (1957), quoted in Dean, Beyond Helsinki: The Soviet View of Human Rights in International Law, 21 Va. J. Int'l L. 55, 72-74 (1980).
(193) ... [l]e principal obstacle a la reconnaissance de cette meme personalite aux organisations internationales non-gouvernementales." Leyendecker, supra note 171, at 43.
(194) Brownlie, supra note 82, at 67. "Furthermore, as elsewhere in the law, provided that no rule of jus cogens is broken, acquiescence, recognition, and the incidence of voluntary bilateral relations can do much to obviate the more negative consequences of anomaly." Id. at 59.
(195) Lador-Lederer, supra note 165, at 59-68. Similar functional attributes are shared by international public corporations. See generally Friedman, supra note 159. These bodies, like the Bank for International Settlements, see Hague Convention, Jan. 20, 1930, 104 L.N.T.S, 441, are international in character, have managerial and financial autonomy, own their own funds, perform an international public service, and are constituted in a multinational convention. It is only in respect to the last characteristic that they differ from most NGOs. Friedman, supra note 159, at 186, 191; Kunz. supra notc 74, at 850-51.
(196) See, eg.. Lador-Lederer, supra note 165, at 29-32, 60, 210-11.
(197) See generally Picet, La Croix et les Convenitons de Geneve, 76 Recueil des Cours 5 (1950: I).
(198) Lador-Lederer, supra note 165, at 14-15. Other functions which characterize both NGOs and international persons are the delegation of authority, consultation with other international persons, technical assistance and propaganda. Id. at 64.
(199) Id. at 210.
(200) "[R]eference to the functions and powers of the organisation exercised on the international plane, and not to the abstract and variable notion of personality, will alone give guidance on what powers may properly be implied." D. Bowett, The Law of International Institutions 275 (1963).
(201) Lissitzyn, supra note 160, at 15. See generally Schneider, supra note 157.
(202) See, e.g., Case Concerning the Payment of Various Serbian Loans Issued in France (Serbian Loan Case), 1928-1930 P.C.I.J., Ser. A., Nos. 20-21, 41 (Judgment of July 12, 1929). See also Wengler, Agreements of States with Other Parties than States in International Relations, 8 Revue Hellenique de Droit International 113, 118 (1954) [hereinafter "Wengler"].
(203) Lissitzyn, supra note 160, at 5. See generally Schneider, supra note 157.
(204) Wengler, supra note 202, at 113.
(206) See Schneider, supra note 157, at 94-96.
(207) [1946-1947] U.N.Y.B. 245.
(208) Agreement between United Nations Relief & Rehabilitation Administration and American Friends Service Committee, International Committee of the Red Cross, and League of Red Cross Societies, [1948-1949] U.N.Y.B. 161, U.N. Doc. A/1905.
(209) [1948-1949] U.N.Y.B. 703.
(210) Wengler, supra note 202, at 115.
(211) Schneider, supra note 157, at 117.
(212) Olympic Charter, Rule 11 (prov. ed. 1980). See notes 168-187 and accompanying text supra.
(213) J. Brierly, Report on the Law of Treaties 17,  2 'Y.B, Int'l L. Comm'n 222, 229, U.N. Doc. A/CN.4/23 (1950).
(214) Schneider, supra note 157, at 121.
(215) Article 3 provides: "The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law ... shall not affect: (a) the legal force of such agreements ..." Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 8 I.L.M. 679, 681-82 (1969), UN. Doc. A/CONF. 39/27. Earlier drafts of the Convention had employed a definition of "treaty" which included international entities other than states. See  1 Y.B. Int'l L. Comm'n 164.
(216) Note, Arbitration of Economic Development Agreements: The Impact of Revere v. OPIC, 20 Va. J. Int'l L. 861, 863 (1980) [hereinafter "Virginia Note"].
(217) Wengler, supra note 202, at 127.
(218) A. Fatouros, Government Guarantees to Foreign Investors 192 (1962) [hereinafter "Fatouros"]. If the host state participates in the project, then its undertakings are included in a joint venture agreement. See Berens, Foreign Ventures - A Legal Anatomy, 26 Bus. Law. 1527 (1971); Zaphirious, Methods of Cooperation Between Independent Enterprises (Joint Ventures), 26 Am. J. Int'l L. 245 (Supp. 1978).
(219) R. Rendell, International Project Financing, in International Financial Law 39, 43 (1980) [hereinafter "Rendell"].
(220) Id. at 45.
(221) Concession agreement between Revere Jamaica Alumina, Ltd. and Jamaica, quoted in Revere Copper & Brass, Inc. v. Overseas Private Investment Corp., 56 I.L.R. 258, 263 (Haight, Wetzel & Bergan, arbs. 1978).
(222) Virginia Note, supra note 216. at 862.
(223) Revere Copper & Brass, Inc. v. Overseas Private Investment Corp., 56 I.L.R. at 258, 271 (Haight, Wetzel & Bergan, arbs. 1978); Texaco Overseas Petroleum Co. [TOPCO] & California Asiatic Oil Co. v, Libyan Arab Repub!ic, 53 I.L.R. 389, 431-36 (Dupuy, arb, 1977).
(224) 56 I.L.R. at 271.
(225) Id. at 272. See generally Delaume, What is an International Contract?, an American and Gallic Dilemma, 28 Int'l & Comp. L.Q. 258 (1979).
(226) 27 I.L.R. 117 (1958).
(227) "Freezing clauses" or "stabilization clauses" prohibit the host from changing the investor's rights under the contract by changing or modifying the municipal law of the host country. 53 I.L.R. al 456-57.
(228) 27 I.L.R. at 168.
(229) Sapphire v. Internat'l Petroleum Ltd. v. Nat'l Iranian Oi1 Co., 35 I.L.R. 136, 171 (1967).
(231) Id. at 174. See, e.g., 53 I.L,R. al 459-60.
(232) 56 1.L.R. 258 (Haight, Wetzel & Bergan, arbs. 1978).
(233) Id. al 282. But see BP Exploration Go. (Libya) v. Libyan Arab Republic, 53 1.L.R. 297, 327-29 (Lagergren, arb, 1973- 74).
(234) See, e.g., 53 I.L.R. at 462; Sapphire Int'l Petroleums Ltd. v. Nat'l Iranian Oil Co., 35 I.L.R. 136, 181 (Cavin, arb. 1963).
(235) 56 I.L,R. at 279-84.
(236) See 53 J.L.R. at 456-57.
(237) Indeed, such sharing would undermine the goal of isolating the IOC from the forum State. See text accompanying notes 43-69 supra.
(238) Furthermore, concession agreements are limited to a term of \ears and the permanent site contract between the IOC and Greece would probably be open ended and perpetual. See, e.g., Revere Copper & Brass, Inc. v. Overseas Private Investment Corp., 56 1 L.R. 258 (twenty- five year agreement).
(239) Virginia Note, supra note 216, at 877.
(240) See, e.g., Permanent Sovereignty over Natural Resources, GA. Res. 1803, 17 U.N GAOR Supp. (No. 17) 15, UN. Doc. A/5217; Charter of Economic Rights and Duties of States, G.A. Res. 3281, 29 UN. GAOR Supp. (No. 31) 50, U N. Doc. A/963l (1974). The latter provides that "where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless otherwise agreed between the parties." Id. chap. 2, art. 2(2)(c).
(241) Fatouros, International Law and the Internationalized Contract, 74 Am. J. Int'l L 134, 137 (1980).
(242) See text accompanying note 153 supra.
(243) See text accompanying notes 157-212 supra.
(244) See text accompanying notes 213-41 supra.
(245) McNair, The Law of Treaties 239-54 (1961).
(246) Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art, 36, 8 I.L.M. 679 (1969). Article 37(2) provides that, "When a right bas arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State." Id. art. 37(2).
(247) L. McNair, The Law of Treaties 239 (1961). See generally K. Idman, Le Traite
de Garantie en Droit International (1913).
(248) P. Nevitt, Project Financing 91(1980). The United States has had an investment guaranty program in operation since 1948. Fatouros, supra note 218, at 102.
(249) These agreements are in addition to a concession agreement between the investor and the host state. See notes 219-25 and accompanying text supra; note 254 infra.
(250) Fatouros, supra note 218, at 104-06. See, e.g., Treaty of Friendship, Commerce & Navigation, Dec. 23, 1957, Federal Republic of Germany-Dominican Republic  Bundesgesetzblatt (II) 1168; Treaty of Friendship, Commerce & Navigation, Feb. 2, 1948, U.S.-Italy, 63 Stat. 2255, T.I.A.S. No. 1965, 79 U.N.T.S. 171. See generally H.C. Hawkins, Commercial Treaties & Agreements; Principles and Practice (1951); R. Wilson, United States Commercial Treaties and International Law (2nd ed. 1960); Walker, Modern Treaties of Friendship, Commerce and Navigation, 42 Minn. L. Rev. 805 (1958); Walker, Provisions on Companies in U.S. Commercial Treaties, 50 Am. J. Int'l L. 373 (1956).
(251) Revere Brass & Copper, Inc. v. Overseas Private Investment Corp., 56 J.L.R. 258, 261-62 (Haight, Wetzel & Bergan, arbs. 1978). See generally OPIC, Investment Insurance Handbook (1980).
(252) See Anaconda Co. & Chile Copper Go. v. OPIC, 14 1.L.M. 1210, 1227-28 (Fuld, Sommers & Vagts, arbs. 1975); Revere Brass, 56 I.L.R. 258, 296. See generally Virginia Note, supra note 216, at 884.
(253) Fatouros, supra note 218, at 191.
(254) In foreign project financing, the concession agreement, or whatever contract is entered into between the sponsors and the host State, sets forth the basic legal framework for the project. Rendell, supra note 219, at 43.
(255) See text accompanying notes 114-46 supra.
(256) See text accompanying notes 43-69 supra. The IOC should consider negotiating a choice of law clause, similar to that commonly used in concession agreements, providing for application of those principles of Greek law not inconsistent with international law. See. E.g., clause 28 of TOPCO's 1966 deed of concession with Libya:
This concession shall be governed by and interpreted in accordance with the principles of law of Libya common to the principles of international law and in the absence of such common principles then by and in accordance with the general principles of law, including such of those principles as may have been applied by international tribunals. Texaco Overseas Petroleum Co. [TOPCO] & California Asiatic Oil Co, v. Libyan Arab Republic, 53 I.L.R. 389, 442 (Dupuy, arb. 1977).
(257) These guaranties also could be contained in a multilateral convention to which Greece would be just another party. This would follow the practice of Friendship, Commerce and Navigation treaties where all obligations are expressed as being mutual, even though one party has no prospect of investment or significant commercial activity in the other, See Fatouros, supra note 218, as 96, 98. This format has been rejected here as an awkward legal fiction which fails to reflect the actual arrangement.
(258) The Guarantors would be obligated to bring Greece to binding arbitration in the event it refused to abide by an arbitral award issued pursuant to the Bilateral Agreement. See notes 268-77 and accompanying text infra.
(259) Initial studies of the economic viability of the permanent site proposal indicated that the IOC's revenues - principally from the quadrennial sale of television rights - would be sufficient to support the operation of the Olympic center, including debt service on the initial capital investment. See note 14 supra.
(260) The loan would most probably be an internationally syndicated Eurodollar bank ban with participating lenders from North America, Europe, the Middle East, and the Far East.
(261) Rendell, supra note 219, at 41.
(262) P. Nevitt, Project Financing 111 (1980).
(263) See Treaty of Friendship, Commerce & Navigation, Aug. 3, 1951, U.S.-Greece, 5 U.S.T. 1829, T,I.A.S. No. 3057, 224 UN,T.S. 297; Treaty of Friendship, Commerce & Navigation, Nov. 11, 1953, West Germany-Greece,  Bundesanzeiger No. 228.
(264) See, e.g., L.N. Headquarters Agreement, supra note 114, [section] 21.
(265) M.Laughlin, Arbitration and Developing Countries, 13 Int'l Law,.211, 212 (1979).
(267) See, e.g.. UN. Headquarters Agreement, supra note 114, [section] 21. The Bilateral Agreement also should provide explicitly that all interim arbitral awards shall be observed by the parties.
(268) A. Foustoucos, Greece. 5 Y.B. Comm. Arb. 57. 61 (1980). See Code of Civil Procedure, bk. VII. arts, 867-903. Law, No. 958, Sept. 15, 1971 (Greece), reprinted in A. Foustoucos, Larbitrage Interne et international en droit prive hellenique, Appendix A, 321-30 (1976) [hereinafter "Foustoucos"]
(269) Code of Civil Procedure, bk. VII, art. 903 (Greece), reprinted in Foustoucos, supra note 268, at 330.
(270) These include treaties with the United States, West Germany, Yugoslavia and Czechoslovakia. Foustoucos, supra note 268, at 80-81.
(271) Legislative Decree No 4220 of 1961 (Greece). Greece agreed to the Convention terms subject to two reservations (allowed under article 1, subsection 3). Like France, Greece has limited application to those awards made in the territory of a contracting state and will only apply the Convention to differences arising under commercial legal relationships (under Greek law) See Foustoucos, supra note 268, at 182.
(272) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S, No. 6997, 330 U.N.T.S. 3 (entered into force Dec. 29, 1970) [hereinafter "New York Convention".]
(273) Id, art, V. The grounds include invalidity of the arbitration agreement, inability of a party to present its case, noncompliance with the terms of submission, including terms regarding the appointment of arbitrators, and judicial action setting aside the award in the country in which it was rendered, Id, see Sanders, A Twenty Years' Review of the Convention on the Recogniton and Enforcement of Foreign Arbitral Awards, 13 Int'1 Law. 269, 270-72(1979) [hereinafter "Sanders"].
(274) New York Convention. supra note 272, art. V, subdiv. 2(b). The public policy exception also applies if the subject matter of the arbitration is not capable of settlement by arbitration in the country of enforcement Id. at art. V, subdiv. 2(a).
(275) Sanders, supra note 273, at 270.
(276) McLaughlin, Arbitration and Developing Countries, 13 Int'l Law. 211, 221 (1979).
(277) In 100 cases applying the New York Convention all over the world, enforcement was denied on public policy grounds only three times. Sanders, supra note 273, at 271.
by Frederic C. Rich **
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|Author:||Rich, Frederic C.|
|Publication:||The International Sports Law Journal|
|Date:||Jul 1, 2009|
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