Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947

On 2 March 1988, the General Assembly of the United Nations adopted a resolution whereby it requested the Court to give an advisory opinion on the question of 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, was under an obligation to enter into arbitration in accordance with Section 21 of the Agreement. That resolution had been adopted in the wake of the signature and imminent entry into force of a law of the United States, entitled Foreign Relations Authorization Act, Title X of which established certain prohibitions regarding the Palestine Liberation Organization (PLO), inter alia, a prohibition

“to establish or maintain an office, headquarters, premises or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization”.

The PLO, in accordance with the Headquarters Agreement, had a Permanent Mission to the United Nations. The Secretary-General of the United Nations invoked the dispute settlement procedure set out in Section 21 of the Agreement and proposed that the negotiations phase of the procedure commence on 20 January 1988. The United States, for its part, informed the United Nations that it was not in a position and was not willing to enter formally into that dispute settlement procedure, in that it was still evaluating the situation and as the Secretary-General had sought assurances that the arrangements in force at the time for the Permanent Observer Mission of the Palestine Liberation Organization would not be curtailed or otherwise affected. On 11 February 1988, the United Nations informed the Department of State that it had chosen its arbitrator and pressed the United States to do the same. The Court, having regard to the fact that the decision to request an advisory opinion had been made “taking into account the time constraint”, accelerated its procedure. Written statements were filed, within the time-limits fixed, by the United Nations, the United States of America, the German Democratic Republic and the Syrian Arab Republic, and on 11 and 12 April 1988 the Court held hearings at which the United Nations Legal Counsel took part. The Court rendered its Advisory Opinion on 26 April 1988. It began by engaging in a detailed review of the events that took place before and after the filing of the request for an advisory opinion, in order to determine whether there was, between the United Nations and the United States, a dispute of the type contemplated in the Headquarters Agreement. In so doing, the Court pointed out that its sole task was to determine whether the United States was obliged to enter into arbitration under that Agreement, not to decide whether the measures adopted by the United States in regard to the PLO Observer Mission did or did not run counter to that Agreement. The Court pointed out, inter alia, that the United States had stated that “it had not yet concluded that a dispute existed” between it and the United Nations “because the legislation in question had not been implemented”. Then, subsequently, referring to “the current dispute over the status of the PLO Observer Mission” it had expressed the view that arbitration would be premature. After initiating litigation in its domestic courts, the United States, in its written statement, had informed the Court of its belief that arbitration would not be “appropriate or timely”. After saying that it could not allow considerations as to what might be “appropriate” to prevail over the obligations deriving from Section 21, the Court found that the opposing attitudes of the United Nations and the United States showed the existence of a dispute, whatever the date on which it might be deemed to have arisen. It further qualified that dispute as a dispute concerning the application of the Headquarters Agreement, and then 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” within the meaning of Section 21 of the Agreement been contemplated by the United Nations and the United States. The Court accordingly concluded that the United States was bound to respect the obligation to enter into arbitration, under Section 21. In so doing, it recalled the fundamental principle of international law that international law prevailed over domestic law, a principle long endorsed by a body of judicial decisions.