| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/
Determination of the Existence of a Dispute |
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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. 27] In order to answer the question put to it, the Court has to
determine whether there exists a dispute between the United Nations and the
United States, and if so whether or not that dispute is one "concerning the
interpretation or application of" the Headquarters Agreement within the
meaning of section 21 thereof. If it finds that there is such a dispute it must
also, pursuant to that section, satisfy itself that it is one "not settled
by negotiation or other agreed mode of settlement".
As the Court observed in the case concerning Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, "whether there exists an
international dispute is a matter for objective determination" (I.C.J.
Reports 1950, p. 74). In this respect the Permanent Court of International
Justice, in the case concerning Mavrommatis Palestine Concessions, had
defined a dispute as "a disagreement on a point of law or fact, a conflict
of legal views or of interests between two persons" (P.C.I.J., Series
A, No. 2, p. 11). This definition has since been applied and clarified on a
number of occasions. In the Advisory Opinion of 30 March 1950 the Court, after
examining the diplomatic exchanges between the States concerned, noted that "the
two sides hold clearly opposite views concerning the question of the performance
or non-performance of certain treaty obligations" and concluded that "international
disputes have arisen" (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 74). Furthermore,
in its Judgment of 21 December 1962 in the South West Africa cases, the
Court made it clear that in order to prove the existence of a dispute
"it is not sufficient for one party to a contentious case to assert
that a dispute exists with the other party. A mere assertion is not sufficient
to prove the existence of a dispute any more than a mere denial of the existence
of the dispute proves its non-existence. Nor is it adequate to show that the
interests of the two parties to such a case are in conflict. It must be shown
that the claim of one party is positively opposed by the other." (I.C.J.
Reports 1962, p. 328.)
The Court found that the opposing attitudes of the parties clearly
established the existence of a dispute (ibid.; see also Northern
Cameroons, I.C.J. Reports 1963, p. 27).
[p. 28] The United States has never expressly contradicted the view
expounded by the Secretary-General and endorsed by the General Assembly
regarding the sense of the Headquarters Agreement. Certain United States
authorities have even expressed the same view, but the United States has
nevertheless taken measures against the PLO Mission to the United Nations. It
has indicated that those measures were being taken "irrespective of any
obligations the United States may have under the [Headquarters] Agreement"
(paragraph 24 above).
In the view of the Court, where one party to a treaty protests against the
behaviour or a decision of another party, and claims that such behaviour or
decision constitutes a breach of the treaty, the mere fact that the party
accused does not advance any argument to justify its conduct under international
law does not prevent the opposing attitudes of the parties from giving rise to a
dispute concerning the interpretation or application of the treaty.
[pp. 29-30] The United States in its written statement might be
implying that neither the signing into law of the Anti-Terrorism Act, nor its
entry into force, nor the Attorney General's decision to apply it, nor his
resort to court proceedings to close the PLO Mission to the United Nations,
would have been sufficient to bring about a dispute between the United Nations
and the United States, since the case was still pending before an American court
and, until the decision of that court, the United States, according to the
Acting Permanent Representative's letter of 11 March 1988, "will not take
other actions to close" the Mission. The Court cannot accept such an
argument. While the existence of a dispute does presuppose a claim arising out
of the behaviour of or a decision by one of the parties, it in no way requires
that any contested decision must already have been carried into effect. What is
more, a dispute may arise even if the party in question gives an assurance that
no measure of execution will be taken until ordered by decision of the domestic
courts.
The Anti-Terrorism Act was signed into law on 22 December 1987. It was
automatically to take effect 90 days later. Although the Act extends to every
PLO office situated within the jurisdiction of the United States and contains no
express reference to the office of the PLO Mission to the United Nations in New
York, its chief, if not its sole, objective was the closure of that office. On
11 March 1988, the United States Attorney General considered that he was under
an obligation to effect such a closure; he notified the Mission of this, and
applied to the United States courts for an injunction prohibiting those
concerned "from continuing violations of" the Act. As noted above, the
Secretary-General, acting both on his own behalf and on instructions from the
General Assembly, has consistently challenged the decisions contemplated and
then taken by the United States Congress and the Administration. Under those
circumstances, the Court is obliged to find that the opposing attitudes of the
United Nations and the United States show the existence of a dispute between the
two parties to the Headquarters Agreement.
For the purposes of the present advisory opinion there is no need to seek to
determine the date at which the dispute came into existence, once the Court has
reached the conclusion that there is such a dispute at the date on which its
opinion is given.
[p. 32] To conclude, the United States has taken a number of
measures against the PLO Observer Mission to the United Nations in New York. The
Secretary-General regarded these as contrary to the Headquarters Agreement.
Without expressly disputing that point, the United States stated that the
measures in question were taken "irrespective of any obligations the United
States may have under the Agreement". Such conduct cannot be reconciled
with the position of the Secretary-General. There thus exists a dispute between
the United Nations and the United States concerning the application of the
Headquarters Agreement, falling within the terms of section 21 thereof.
The question might of course be raised whether in United States domestic law
the decisions taken on 11 and 21 March 1988 by the Attorney General brought
about the application of the Anti-Terrorism Act, or whether the Act can only be
regarded as having received effective application when or if, on completion of
the current judicial proceedings, the PLO Mission is in fact closed. This is
however not decisive as regards section 21 of the Headquarters Agreement, which
refers to any dispute "concerning the interpretation or application"
of the Agreement, and not concerning the application of the measures taken in
the municipal law of the United States. The Court therefore sees no reason not
to find that a dispute exists between the United Nations and the United States
concerning the "interpretation or application" of the Headquarters
Agreement.
[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.
