III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.2. | Conditions for a Decision on the Merits |
2.2.2. | Necessity of Diplomatic Negotiations |
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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
[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.