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World Court Digest

II. Substantive International Law - Second Part

¤ Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947
Advisory Opinion of 26 April 1988
I.C.J. Reports 1988, p. 12

[p. 29] The Court could not allow considerations as to what might be "appropriate" to prevail over the obligations which derive from section 21 of the Headquarters Agreement, as "the Court, being a Court of justice, cannot disregard rights recognized by it, and base its decision on considerations of pure expediency" (Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 15).
The Court must further point out that the alleged dispute relates solely to what the United Nations considers to be its rights under the Headquarters Agreement. The purpose of the arbitration procedure envisaged by that Agreement is precisely the settlement of such disputes as may arise between the Organization and the host country without any prior recourse to municipal courts, and it would be against both the letter and the spirit of the Agreement for the implementation of that procedure to be subjected to such prior recourse. It is evident that a provision of the nature of section 21 of the Headquarters Agreement cannot require the exhaustion of local remedies as a condition of its implementation.

[p. 43 S.O. Schwebel] My difference of perspective with the Court turns on whether the dispute between the United Nations and the United States at this juncture concerns "the interpretation or application" of the Headquarters Agreement. The nub of my appreciation of the facts of the case is that there is essential agreement between the United Nations and the United States on the interpretation of the Headquarters Agreement. Whether there currently is a dispute over its application is not so clear.
It can be concluded, as the Court concludes, that, by the course of conduct which the Government of the United States has followed with respect to the continued functioning of the office in New York City of the Observer Mission to the United Nations of the Palestine Liberation Organization, a dispute has arisen between the United Nations and the United States "concerning the ... application of this Agreement...". But, in my view, the facts of the case alternatively allow the conclusion that, since the effective application of the United States Act at issue - the Anti-Terrorism Act - to the PLO's New York office has been deferred pending the outcome of litigation now in progress in the United States District Court for the Southern District of New York, a dispute over the application of the Headquarters Agreement will arise if and when the result of that litigation is effectively to apply that Act to the PLO's office.

[pp. 51-52 S.O. Schwebel] In view of the demonstrated consistency of the views of the United Nations and the United States on the interpretation of the Headquarters Agreement, I am unpersuaded by the Court's conclusion that "the opposing attitudes of the parties" give rise to a dispute "concerning the interpretation or application" of the Headquarters Agreement. In so far as that conclusion relates to application, it is not without force; in so far as it relates to interpretation, the above recitation of the facts of the case in my view demonstrates that it is not wholly convincing.
It is of course true that, where the breach by a State of its obligations under a treaty is manifest and undenied, such breach does not escape a jurisdictional clause which affords a court - such as this Court - the authority to decide disputes over that treaty's interpretation or application. Counsel for the United States so argued in the case of United States Diplomatic and Consular Staff in Tehran (I.C.J. Pleadings, p. 279), and that argument, apparently accepted by the Court, remains persuasive. But it does not follow that, in a particular case, the existence or non-existence of a dispute over the interpretation of a treaty is unaffected by the articulated concordance of views of the parties concerning its interpretation. In the case before the Court, if the question of application of the Headquarters Agreement is for purposes of analysis put aside, it does appear that the views of the parties on its interpretation "coincide" (to use the term employed by the Secretary-General).
That being said, I nevertheless recognize that there is logic in and authority for the position that every allegation by a party of a breach of a treaty provision - however manifest and admitted by the other party - necessarily entails elements of interpretation (by the parties and by any court adjudging them), because an application or misapplication of a treaty, however clear, is rooted in an interpretation of it. But when a party actually alleges, if not in form then in substance, only a failure to apply the treaty, and makes clear that there is no dispute over its interpretation, is there, for purposes of dispute settlement, a dispute over the treaty's interpretation? I have my doubts.
The essential question at issue in this case is whether there is a dispute over the application of the Headquarters Agreement. The Court acknowledges that there may be question about whether the Anti-Terrorism Act has been applied or whether the Act will only have received effective application when or if, on completion of current United states judicial proceedings, the PLO Mission is in fact closed. It maintains, however, that this is not decisive as regards section 21 of the Headquarters Agreement, since that Agreement refers to any dispute concerning its interpretation or application and not the application of measures taken in the municipal law of the United States.

[p. 54 S.O. Schwebel] The question in the end comes to whether the United States now is bound to arbitrate the dispute, or whether it will only be so bound in the event that the District Court should order that the Act be enforced against the PLO Observer Mission. Should proceedings before the District Court and any appeals therefrom be maintained, the possibilities of municipal judgment are several. It could be held that the Act applies to the PLO Observer Mission, in which event the United States has inferred that it then will regard arbitration of the resultant dispute as "timely and appropriate". Alternatively, having regard to the reasoning of Senator Pell set out above or on other grounds, it could be held that the Act does not apply to the PLO Observer Mission, in which event, if a dispute requiring arbitration ever existed, it no longer will. Or it could be held that, in view of the Advisory Opinion of this Court, and in view of the fact that the Anti-Terrorism Act does not mention, and accordingly cannot be interpreted as derogating from, arbitral obligations of the United States under the Headquarters Agreement, in any event the United States is bound to arbitrate the dispute. There may be other possibilities as well.

[pp. 58-60 S.O. Shahabuddeen] As to whether the dispute in this case related to a question of interpretation of the Agreement, it was indeed the case that the views of the State Department coincided with those of the Secretary-General on the question of the status of the PLO Observer Mission under the Agreement (see the Secretary-General's letter of 13 October 1987 to United States Permanent Representative Ambassador Walters). But then different views on the subject seemingly prevailed with the United States legislature, and these would seem to have been upheld by the President when he assented to the Act adopted by it.
I have, however, considered an argument that, even so, there is still no conflict of views between the United States and the United Nations as to the interpretation of the Agreement for the reason that the United States has taken a position which may be interpreted to mean that, although the Administration is obliged by domestic law to enforce the Act by closing the PLO Observer Mission, it at the same time recognizes that it has no right to do so under international law and will engage international responsibility accordingly if it proceeds to a closure.
The argument is interesting, as much for its refinement as for its consequences, for, if sound, it means that, provided a State is prepared to go on record as admitting that it is consciously embarking on the violation of its accepted treaty obligation - something few States are prepared to do (see S. Rosenne, Breach of Treaty, 1984, p. 11) - it can escape its obligation to submit to an agreed procedure for the settlement of disputes concerning the interpretation of the treaty on the ground that it is in fact in agreement with the other party as to the meaning of the treaty, with the consequence that there is no dispute as to its interpretation.
A proposition productive of such strange results may not unreasonably be suspected of supplying its own refutation. I would suspect that, to begin with, the superstructure of the argument bases itself too narrowly on a possibly disjointed reading of the disputes settlement formula prescribed by section 21 of the Agreement.
The phrase "interpretation and application" has occurred in one version or another in a multitude of disputes settlement provisions extending over many decades into the past. In the Certain German Interests in Polish Upper Silesia case (P.C.I.J., Series A, No. 6, p. 14), it was held that it was not necessary to satisfy both elements of the phrase taken cumulatively, the word "and" falling to be read disjunctively. The phrase in this case happens to be "interpretation or application". Satisfaction of either element will therefore suffice. But, further, since it is not possible to interpret a treaty save with reference to some factual field (even if taken hypothetically) and since it is not possible to apply a treaty except on the basis of some interpretation of it, there is a detectable view that there is little practical, or even theoretical, distinction between the two elements of the formula (see L. B. Sohn, "Settlement of Disputes relating to the Interpretation and Application of Treaties", Recueil des cours de l'Académie de droit international de La Haye, Vol. 150, 1976, p. 271). It seems arguable that the two elements constitute a compendious term of art generally covering all disputes as to rights and duties having their source in the controlling treaty (see the language used in the Chorzów Factory case, P.C.I.J., Series A, No. 9, p. 24). It is, with much respect to the opposite view, not right to adopt an approach which would seek to avoid this conclusion by dissecting the phrase in question, focusing separately on its individual elements, and then reading them as if they did not belong together in a single formula whose force indeed derives from its constituent parts but is not coextensive with their sum 1.

[pp. 61-62 S.O. Shahabuddeen] The disputes settlement procedure of section 21 of the Agreement clearly applies to disputes arising out of complaints about an actual breach of the Agreement, but equally clearly it is not limited to such cases only. It extends to disputes arising out of opposition by one party to a course of conduct pursued by the other party, or a threat by it to act, with a view to producing what the complainant considers would be a breach of the Agreement. In the view of the Secretary-General, as I interpret it, such a course of conduct or threat was represented by the enactment of the Anti-Terrorism Act of 1987, this having in fact been assented to by the host country's Head of State whose recognized duty it was to carry out the laws of the State. Failing assurances to the contrary (which were sought but never given) the Secretary-General was entitled to assume that the President, through his appropriate officers, would carry out that duty with consequences which the Secretary-General considered would be at variance with the Agreement. This conflict of both views and interests would give rise to a dispute within the established jurisprudence on the subject, whether or not any actual breach of the Agreement had as yet occurred through the enforced closure of the Mission.

The framework of the Agreement does not link the concept of a dispute to the concept of an actual breach. A claim by one party that the other party is in actual breach of an obligation under the Agreement is not a precondition to the existence of a dispute. And disputes as to the application of the Agreement comprehend disputes as to its applicability (see the Chorzów Factory case, P.C.I.J., Series A, No. 9, p. 20).

However, if this is wrong, with the consequence that a claim that there has been an actual breach is required, then it is to be noted that, from the record, it is a reasonably clear interpretation of the Secretary-General's position that it does include a claim that the host State is in current breach of its obligations under the Headquarters Agreement by reason of the enactment of the Act considered either separately from, or cumulatively with, the subsequent actions taken pursuant to it. Such a claim may be contested but cannot be considered so wholly unarguable as to be incapable of giving rise to a real dispute (see the Nuclear Tests case, I.C.J. Reports 1974, p. 430, per Judge Barwick, dissenting).

1Footnote omitted