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World Court Digest

III. The International Court of Justice
2.2. Conditions for a Decision on the Merits
2.2.2. Necessity of Diplomatic Negotiations

¤ 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

[pp. 33-34] In his letter to the United States Permanent Representative dated 14 January 1988, the Secretary-General not only formally invoked the dispute settlement procedure set out in section 21 ofthe Headquarters Agreement, but also noted that "According to section 21 (a), an attempt has to be made at first to solve the dispute through negotiations" and proposed that the negotiations phase of the procedure commence on 20 January 1988. According to the Secretary-General's report to the General Assembly, a series of consultations had already begun on 7 January 1988 (A/42/915, para. 6) and continued until 10 February 1988 (ibid., para. 10). Technical discussions, on an informal basis, on procedural matters relating to the arbitration contemplated by the Secretary-General, were held between 28 January 1988 and 2 February 1988 (ibid., paras. 8-9). On 2 March 1988, the Acting Permanent Representative of the United States stated in the General Assembly that
"we have been in regular and frequent contact with the United Nations Secretariat over the past several months concerning an appropriate resolution of this matter" (A/42/PV.104, p. 59).

The Secretary-General recognizes that "The United States did not consider these contacts and consultations to be formally within the framework of section 21 (a) of the Headquarters Agreement" (written statement, para. 44), and in a letter to the United States Permanent Representative dated 2 February 1988, the Secretary-General noted that the United States was taking the position that, pending its evaluation of the situation which would arise from application of the Anti-Terrorism Act, "it cannot enter into the dispute settlement procedure outlined in section 21 of the Headquarters Agreement".
The Court considers that, taking into account the United States attitude, the Secretary-General has in the circumstances exhausted such possibilities of negotiation as were open to him. The Court would recall in this connection the dictum of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case that
"the question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation" (P.C.I.J., Series A, No. 2, p. 13).
When in the case concerning United States Diplomatic and Consular Staff in Tehran the attempts of the United States to negotiate with Iran "had reached a deadlock, owing to the refusal of the Iranian Government to enter into any discussion ofthe matter", the Court concluded that "In consequence, there existed at that date not only a dispute but, beyond any doubt, a 'dispute... not satisfactorily adjusted by diplomacy' within the meaning of" the relevant jurisdictional text (I.C.J. Reports 1980, p. 27, para. 51). In the present case, the Court regards it as similarly beyond any doubt that the dispute between the United Nations and the United States is one "not settled by negotiation" within the meaning of section 21, paragraph (a), of the Headquarters Agreement.
Nor was any "other agreed mode of settlement" of their dispute contemplated by the United Nations and the United States. In this connection the Court should observe that current proceedings brought by the United States Attorney General before the United States courts cannot be an "agreed mode of settlement" within the meaning of section 21 of the Headquarters Agreement. The purpose of these proceedings is to enforce the Anti-Terrorism Act of 1987; it is not directed to settling the dispute, concerning the application of the Headquarters Agreement, which has come into existence between the United Nations and the United States. Furthermore, the United Nations has never agreed to settlement of the dispute in the American courts; it has taken care to make it clear that it wishes to be admitted only as amicus curiae before the District Court for the Southern District of New York.