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".