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Summaries of the Decisions

Applicability of the Obligation to Arbitrate under Section 21

of the United Nations Headquarters Agreement of 26 June 1947,

Advisory Opinion of 9 March 1988

On 2 March 1988 the General Assembly of the United Nations adopted resolution 42/229 B whereby it requested the International Court of Justice to give an advisory opinion on the question whether the United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, is under an obligation to enter into arbitration in accordance with section 21 of the Agreement. In the light of the indication given by the General Assembly in the resolution, the Court found that an early answer to the request would be desirable, as contemplated by Article 103 of the Rules of Court, and that accordingly all necessary steps should be taken to accelerate the procedure. The Court delivered the Advisory Opinion, after the application of an accelerated procedure, in response to a request submitted by the General Assembly of the United Nations under resolution 42/229 B, adopted on 2 March 1988. The General Assembly's request had arisen from the situation which had developed following the signing of the Anti-Terrorism Act adopted by the U.S. Congress in December 1987, a law which was specifically aimed at the Palestine Liberation Organization and inter alia declared illegal the establishment or maintenance of an office of the Organization within the jurisdiction of the United States. The law thus concerned in particular the office of the PLO Observer Mission to the United Nations, established in New York after the General Assembly had conferred observer status on the PLO in 1974. The maintenance of the office was held by the Secretary-General of the United Nations to fall within the ambit of the Headquarters Agreement concluded with the United States on 26 June 1947. The General Assembly put the following question to the Court: "In the light of facts reflected in the reports of the Secretary-General, is the United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, under an obligation to enter into arbitration in accordance with section 21 of the Agreement?". The relevant part of section 21 referred to in the question is worded as follows: "(a) Any dispute between the United Nations and the United States concerning the interpretation or application of this agreement or of any supplemental agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators...". The Court was thus obliged to determine whether there existed a dispute between the United Nations and the United States. To that end, the Court recalled that the existence of a dispute, that is to say, a disagreement on a point of law, is a matter for objective determination and cannot depend upon the mere assertion or denials of parties. The United States had never expressly contradicted the Secretary-General's view, but had taken measures against the PLO Mission and indicated that they were being taken irrespective of any obligations it might have under the Headquarters Agreement. However, in the Court's view, the mere fact that a party accused of the breach of a treaty did not advance any argument to justify its conduct under international law did not prevent the opposing attitudes of the parties from giving rise to a dispute concerning the treaty's interpretation or application. Neither could the Court accept that the United States undertaking not to take any other action to close the Mission before the decision of a domestic Court had prevented a dispute from arising. Thus, the Court found that the opposing attitudes of the United Nations and the United States revealed the existence of a dispute. This dispute also concerned "the interpretation or application of this Agreement" in the sense of section 21 of the Headquarters Agreement. The United States had given precedence to the Anti-Terrorism Act over the Agreement, and that had been challenged by the Secretary-General. Furthermore, the United States had taken a number of measures against the PLO Observer Mission. Those had been regarded by the Secretary-General as contrary to the Agreement. Without disputing that point, the United States had stated that the measure in question had been taken "irrespective of any obligations the United States may have under the Agreement". Those two positions were irreconcilable; thus there existed a dispute between the United Nations and the United States concerning the application of the Headquarters Agreement. The Court then considered whether the dispute was one "not settled by negotiation or other agreed mode of settlement" in the terms of section 21 (a). The Court found that, taking into account the United States attitude, the Secretary-General had in the circumstances exhausted such possibilities of negotiation as were open to him, nor had any "other agreed mode of settlement" been contemplated by the United Nations and the United States. In particular, the current proceedings before the United States courts could not constitute an "agreed method of settlement" within the meaning of section 21. The Court had therefore to conclude that the United States was bound to respect the obligation to enter into arbitration. For those reasons, the Court was unanimously of the opinion: "that the United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of 26 June 1947, is under an obligation, in accordance within section 21 of that Agreement, to enter into arbitration for the settlement of the dispute between itself and the United Nations".