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Smoke ‘em if you got ‘em

- The Washington Times - Thursday, November 13, 2003

 

NEW YORK -- The United Nations is perhaps the last public space in New York where one can light up a Camel over coffee, or even a Cuban cigar after lunch. And diplomats from a dozen foreign nations are working to keep it that way.

Earlier this year, New York City passed one of the most restrictive smoking laws in the country. But the statute has done nothing to stop diplomats from lighting up in the delegates' bar and coffee lounges at the U.N. headquarters building, and New York authorities have no jurisdiction to stop them.

U.N. Secretary-General Kofi Annan has tried on his own to ban cigarettes inside the Secretariat building on First Avenue, succeeding mainly in prompting hours of debate in General Assembly committees and lending a defiant pleasure to each strike of the match.

When diplomats protested that only the General Assembly, not Mr. Annan, could outlaw cigarettes, the U.N. legal advisers were called in to study the matter.

The smokers' revolt -- which an embarrassed senior U.N. official acknowledges is "petty but compelling," has cast a spotlight upon the peculiar legal status of the organization's six riverfront acres and those who work there.

Legal adviser Bruce Rachkow told the U.N. legal committee last week that under a 1946 "headquarters agreement" between the United States and the United Nations, U.S. federal, state and local laws are binding at the United Nations except where the agreement specifies otherwise.

"Thus ... the recently enacted New York State and New York City laws prohibiting smoking in public places are fully applicable to the headquarters premises," he said.

While committing the organization's intent to abide by local laws, however, the 15-page headquarters agreement also says the headquarters compound is "inviolable" and that law officers will not enter without the consent of the secretary-general or his staff.

Furthermore, Mr. Rachkow said, the delegates have diplomatic immunity, which protects them from prosecution under the city's smoking law.

The situation is substantially different at foreign embassies and consulates -- including national missions to the United Nations -- which are considered sovereign territory of the countries involved, meaning that U.S. laws do not apply at all.

The fuss over smoking is in some ways reminiscent of the 1997 battles between Mayor Rudolph W. Giuliani and irate ambassadors who refused to pay millions of dollars in parking fines.

But the current mayor, Michael R. Bloomberg, is much less concerned about diplomats' smoking.

"The U.N. is considered international territory, so the laws don't apply," said Jordan Barowitz, a spokesman in the mayor's office, displaying an imperfect understanding of the legal subtleties.

"The mayor believes that secondhand smoke is dangerous and people deserve protection from it as they would any other dangerous substance. It's up to the U.N. to decide on a policy."

Another city official said, "Technically, the United Nations is sovereign ground, but it also, technically, has to abide by local laws. The [U.N.] legal counsel has it right on the money: The laws are applicable, but unenforceable."

U.N. flouting of city laws goes beyond smoking. The landmark Secretariat Building itself, for instance, fails to meet local building codes. Its lack of sprinklers and abundance of asbestos are well known, but inspectors have never visited.

The United States handles most such matters through the State Department and the U.S. Mission to the United Nations, where the office on host-country relations has legal, financial and protocol staffers. The U.S. Mission declined to comment for this story.

The inviolability of the U.N. property has at times been violated, such as last year when an Illinois postal worker protesting North Korean human rights violations jumped the U.N. fence with a handgun and began firing into the air.

He was tackled by U.S. Secret Service agents, who happened to be guarding a visiting dignitary.

Palitha Kohona, a legal expert who runs the U.N. treaty section, said that certain rights had been conferred upon the United Nations under the headquarters agreement.

"The host state has voluntarily given them up. There is an understanding that the local laws will be respected, but not necessarily enforced," he said.

So what is to keep ambassadors from smoking in the elevators? "Peer pressure and the good sense of all concerned," said Mr. Kohona.