Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 - The Court delivers its Advisory Opinion

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OF JUSTICE
INTEHNATJON C AOU E RT
Cajib:esinfercour t, The Hague
Peace Palace, 2I;iIPKJ The Hague. Tel. 92 44 41.
Telex 32323

No. 88/12
26 April 1988

Appliciability --f the O..--ation ---Arbitrate under
Section 21 of the United Nations Headguatters AEee--nt
of 2b June 1947

The Court delivers its Advisory Opinion
- ----

The following ï.nforaatinn is made available to the Press by the
Regist ry of the Internariolia1 Court of Justice :

Today, 26 April 1988, the Internatnonal Court of Juhtice deltvered a
unanimous Advisor) Opinion in the case concerning the Applicabiiit~ of
the Obligation ts Arbitrate i~ndcr Sectior? 21. of ehe lJnited Nattons --
Headquarters Agreement- of 26 June 1947. 1t has dePI;ene$--- this A~VLGOK~
Opinion, aftes the application of an acceierated proced~re, tesvonse

to a request subrnieted by the Venera: Assé~bly of the iJnLted Nations
under resolotior. 42!'229 B, adopted on 2 March 1988.

Ln its declsion, delivered at a public sitting, the Cottrc has given
its opinion thal: the United States of Amerlca Es under an obligation, iri
accordance wlth seccion 21 of the United Natlons HeadquartersAgrcemeiit,
ts enter into arbisration for rhe settlernene of a djspute oetween ItselE

and the United Nations.

The Court was composed as follolas: ---esident Ruda:
Vice-Presiderit: Mbaye; .--ges Lachs, NageLacira fingh, Elias, Oda, Ago,
Schwebel, Sir Robert Jennings, Bedjaorrl, Ni, Even~eti, Tarassov, Gu: llaume
and Shahabuddecn.

Judge Elias ûppended a derlaration to thc Advjsory Opinina.

Judges Cda, Sc hwete7 and Shahabiiddecn appeaded separate opl xiiein.;

(The declaration and separate opinions are brfefip scmmarizeu at the
end of the attacl~ed ,anclex.) The General Assembly's request had arisen from the situation which
had developed following the signing of the Anti-Terrorism Act adopted by

the United States 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 PL0 Observer Mission to the United Nations,
established in New York after the General Assembly had conferred observer

status on the PL0 in 1974. The maintenance of the office was held by the
Secretary-General of the United Nations to fa11 within the ambit of the
Headquarters Agreement concluded with the United States on 26 June 1947.

Alluding to reports submitted by the Secretary-General of contacts

and conversations he had pursued with the United States Administration
with a view to preventing the closure of the PL0 office, 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
transcribed in the analysis annexed hereto.

The printed text of the Advisory Opinion will become available
in a few weeks' time (orders and enquiries should be addressed to

the Distribution and Sales Section, Office of the United Nations,
1211 Geneva 10; the Sales Section, United Nations, New York, N.Y.
10017; or any apppropriately specialized bookshop).

An analysis of the Advisory Opinion is given below: this has

been prepared by the Registry for the use of the press and in no way
involves the responsibility of the Court. It cannot be quoted
against the text of the Opinion, of which it does not constitute an
interpretation. .-nafysis of the Advisory Opinio.-

Submission of t hc. request and subsequent procedure (paras, 1-6)

The questiorr upoln which the Court's advisory oplnfttn had been sought

was contained in resallution 42/229 B of the United Nations
General Assembly, ada~pted on 2 March 1988. This resoiai~iun read in full
as follows:

"The General Assembly.

--call-ing Its resoluti.on 421210 E of 17 Decemkr 3987 and
bearing in mina Pts resolutlon 42/229 A above,

Having consiidered the reports of the Secretary-General of
10 and 25 Februa.ry- 1988 [A/42/915 and Add. 11,

---Eirming the position of the Secretary-Genera!. t hat a
dispute exists tietween the United Nations and the host country
concerning the interpretation or application of the Agreement
between the United Nations and the United States of America
regarding the Headquarters of the United Nations, dated

26 June 1947 [see resolution 169 (II)], and noting his
conclusions that attempts at amicable settlement were
deadlocked and that he had invoked the arbitration procedure
provfded for in section 21 of the Agreement by nominating an
arbitrator and requesting the host country to nominate its own

arbitrator,

BearHng in mind the constraints of time that require the
immediate impleirientation of the dispute settlement procediire in
occordance with section 21 of the Agreement,

Noting from the report of eiie Secretary-General of
10 February 1988 i8/42/915] that the United States of kaerica
was not in a positim and w3ç not willing to ent2r fomally
into the dispute settlement procedure under section 21 of the
Headquarters Agreement and that the United States was still

evaluating the situation,

Taking intc, âccotint the provisions of the Çtatute of the
Interniatiorial Court of Jiiçtice, in part-icular Articles 41. and
68 thereof,

Decides, iri accordance wfth Artic!e 96 of the Charter of
the United Nations, to rec,iiest the Tnternational Court of
Justice, in pursuarce of Article 65 of the Statute of the
Court, for an advisory opinion on the following question,
taking into accourrt the tirne constrai~it:

'In the ligiit of facts reflected in the reports of
the Çecretary-General [A/42/ 915 and Add. 11, i s the
United States cf America, as a party to thc Agieement
between the United Nations and the United States of
America regardin6 the Xeadquarters of the United Nations

[see resolution 169 (13 )j, linder an obligat !on tc enter
into arbitrai-ion in accordance with secti-in 21 of the
Agrcexent? "" In an Order dated 9 March 1988 the Court found that an early answer
to the request would be desirable (Rules of Court, Art. 103), and that
the United Nations and the United States of America could be considered
likely to furnish information on the question (Statute, Art. 66,
para. 2), and, accelerating its procedure, fixed 25 March 1988 as the

time-limit for the submission of a written statement from them, or from
any other State party to the Statute which desired to submit one.
Written statements were received from the United Nations, the
United States of America, the German Democratic Republic and the Syrian
Arab Republic. At public sittings on 11 and 12 April 1988, held for the

purpose of hearing the cornments of any of those participants on the
statements of the others, the Court heard the comments of the Legal
Counsel of the United Nations and his replies to questions put by certain
Members of the Court. None of the States having presented written

statements expressed a desire to be heard. The Court also had before it
the documents provided by the Secretary-General in accordance with
Article 65, paragraph 2, of the Statute.

Events material to the qualification of the situation (paras. 7-22)

In order to answer the question put to it, the Court had first to
consider whether there existed between the United Nations and the
United States a dispute as contemplated by section 21 of the Headquarters
Agreement, the relevant part of which was 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, one to be named by the
Secretary-General, one to be named by the Secretary of
State of the United States, and the third to be chosen by
the two, or, if they should fail to agree upon a third,

then by the President of the International Court of
Justice. "

For that purpose the Court set out the sequence of events which led first
the Secretary-General and then the General Assembly to conclude that such

a dispute existed.

The events in question centred round the Permanent Observer Mission
of the Palestine Liberation Organization (PLO) to the United Nations in
New York. The PL0 had on 22 November 1974 been invited, by General

Assembly resolution 3237 (XXIX), to "participate in the sessions and the
work of the General Assembly in the capacity of observer". It had
consequently established an observer mission in 1974 and maintained an
office in New York City outside the United Nations Headquarters District.

In May 1987 a Bill had been introduced into the Senate of the
United States, the purpose of which was "to make unlawful the
establishment and maintenance within the United States of an office of
the Palestine Liberation Organization"; section 3 of that Bill provided
inter alia that it would he unlawful after its effective date: "notwithstanding any provisicn of the law to tll*.r(nkrary, tc
establish or maintain an office, headquarters, premJ ses or
other facilitie!; or estahlisknents within the jurisdlctiorr of
the United States at the bchest or direction of, rr with funds
provided by the Palestine Libsration Organlzaeion ..,"

The text of that Bill became sri amcndment, presented jn the Senate in the
autumn of 1987, to the "Foreig~~ Relations Authori~acion Act, Fiscal Years
1988 and 1989". From the terms of that amendment it appeared tbt the
United Ç tates Governnncrit would, if thla Aili oecarne law, seek ta, elcase the

office of the PL0 Observer Mission. On 13 tctober 1987 the
Secretary-General a~ç~~rdingiy emphasized, in a letcer to the
United States Permanent Representacive to the United tiafions, :kt rhe
legislation contemplated ran counter to obligations arising fram the
Headquarters Agreement, and the f ollowing da)? the PL0 Observer brought

the matter to the attention of ihe United Nations Committee on Relations
with the Host Cotintry. On 22 October a spokesman for the
Secretary-General issued a statcment to the effect that sections 11-13 of
the Headquarters Agreement ~iaced a treaty obligation on the
United States to permit the persc;nnc?* of the Mission to enter and remaln

in the United Sta~es In order to carry out their official functions.

The report of the Committee on Relations with the Iiost Country was
placed before the Sixth Cormittee of the General Asçemblg on
24 Novernber 1987. During consideration of that report the Repreçentat1.v~

of the United States noted:

"that the United States Secretarv of State 11ad stated that che
closing of that mission wolild coristi tute a violation of
United States obligation under the Headquarters Agreement, and

that the United States Governi~ent was strongly opposed to it;
moreover the Unlted States Representative to the United Nations
had given the Secretary-General the same assurance^".

The posftion taken by ehe Secretacy of State, namely that the

United States was

"under an obligation te permit PEU Observer M2ssfon personnel
tn enter and rernatn in the United States to carry out their
official functions at United Nations Headquarters",

was also ciéed by another reprzsentritive and confirineci by the
Represer~tative of tl-itliai ted States,

The provisions of the nnieridrnent refetred to above became

incorparatea into the LlniteO States "Foreign Relations Auttlorizatforl Act,
Fiscal Years 1988--19139" as TItLe X, the "Anti-Terrorisru Act oi 1987". At
the beginning of December i987 the amendment had u~t yet been adopt-ed by
Congress. On 7 Decetaber, in anticipation of stach adoption, the
Secretary-Gcneral rerninded tilt Per:ûanent Representatf ve of the

United States of his view that the United States was izrider x Iegalobligation to maintain the longstanding arrangements for the PL0 Observer
Mission and sought assurances that, in the event the proposed legislation
became law, those arrangements would not be affected.

The House and Senate of the United States Congress adopted the
Anti-Terrorism Act on 15-16 December 1987, and the following day the
General Assembly adopted resolution 42/210 B whereby it called upon the
host country to abide by its treaty obligations and to provide assurance
that no action would be taken that would infringe on the arrangements for

the officia1 functions of the Mission.

On 22 December the Foreign Relations Authorization Act,
Fical Years 1998-1989, was signed into law by the President of the
United States. The Anti-Terrorism Act forming part thereof was,

according to its own terms, to take effect 90 days later. In informing w
the Secretary-General of this development, the Acting Permanent
Representative of the United States, on 5 January 1988, stated that:

"Because the provisions concerning the PL0 Observer

Mission may infringe on the President's constitutional
authority and, if implemented, would be contrary to Our
international legal obligations under the United Nations
Headquarters Agreement, the Administration intends, during the
ninety-day period before this provision is to take effect, to

engage in consulations with the Congress in an effort to
resolve this matter."

The Secretary-General responded, however, by observing that he had not
received the assurance he had sought and did not consider that the

statements of the United States enabled full respect for the Headquarters
Agreement to be assumed. He went on:

"Under these circumstances, a dispute exists between the
Organization and the United States concerning the

interpretation and application of the Headquarters Agreement
and 1 hereby invoke the dispute settlement procedure set out in
section 21 of the said Agreement."

The Secretary-General then proposed that negotiations should begin in

conformity with the procedure laid down in section 21.

While agreeing to informa1 discussions, the United States took the
position that it was still evaluating the situation which would arise
from the application of the legislation and could not enter into the

dispute settlement procedure of section 21. However, according to a
letter written to the United States Permanent Representative by the
Secretary-General on 2 February 1988: "The section 21 procednre is the only legd remedy
available to ttie Uriited Nations in this matter and ... the time

is rapidly approaching when 1 will have no alternative but to
proceed either together with the United Sêsfer within che
framework of section 21 of the Headquarters Agi.cernent or by
informing the General Açsembly of the inipasse tfiat kias been
reached. "

On 11 February 1988 the iegal Courisel of the United Nations informed the
Legal Adviser of the Department of State of the United Nations' ehoice of
its arbitrator, in t:he event of an arbitraiion under section 21, and, in
view of the time coristraintç, urged nim to iaform the United Nations as
soon as possible of tiie United States' cnsice. ho communication III that
regard was however received from i-he United States.

On 2 Marrh 1988 the Generai Assemoly adopted two resolutions on the
subject. In the first, resolution 42/229 A, the Ashernbly, knter alia,
reaffirmed that the PL0 should be enabled to establish and maintain
premises and ûdequate facilities for the puryoses of the

Observer Mission; and exprcssed the view that the application of the
Anti-Terrorism Act in a manner inconsistent with that reaffirmûtton would
be êontrary to the international legal obligations of the United States
under the Headqiiarters Agreement, and that the dispute-set tleroent
procedure provided îor in section 21 should be seé in operation. The

other resoluti~n, 42/229 B, already cited, requesked an advlsory opinion
of the Court. Although the Vnited States did not participate in the vote
on either resolutjon, its Acting Permanent Represectative afterwards made
a statement pointin?; out that bis Govexnment had made no flnal dccision
concerning the application or enforcement of the Ariti-Terrorism Act with
respect to the PL0 Mission and that it remained its intention "to finci an

appropriate resolutjon of this problem in lipht of the Charter of the
United Nations. the Headquarters Agreement, and the Laws of the
United States".

Material. - events sub--quent to the .submissl.on of the zeques (paras. 23-32)

The Coiirt. while noting that the Generral Assembly had rêqueoted tt
to give its opinion "in the light of facts reflecfed in the reports"
presented by the Secretary-General p~ior to 2 Plarch 1988, did not
considel- in the circl.~nastfinces that that form of words required it to
close its eyes to t-elevant events subsequent ta thaL date. It tiierefore

took into ciccount chle foilowing developinen ts, iu'hjçh had occurrcd af ter
the submiüsion 05 tkte requcst.

On 11 Harc.ti 1988, the Unlted States Acting Permanent Regresentative
informe$ the Secrstasy-General that the Attorney-GeneraZ had deteruciriecl

that the Anti--Terror.iam Act requited him to cloûc the office of the PL0
Observer Missinn, but that, if legai actions were nerded te ensbre
compliançê, no Iflirther actions to close it would be taken

"pending a deciçion in such IitigatIon. Under the circumstances,
the United States believes that suSmisslon of this mattcr to

arbitration wouild not sene a useful purpose".

The Secretary--General took s trong issue with chat viewpoint in o letter
of 15 March. MeanIIhile the Aetorney-General, in a letter of 11 Plarch,
had warned the P~rmanent Obser-ger of the PL0 thai, as of 21 March, the
maintenance of his ?jiiraic?n would be i~nlawful.. S-lnce the PL0 Miss?or? tookno steps to comply with the requirements of the Anti-Terrorism Act, the
Attorney-General sued for compliance in the District Court for the
Southern District of New York. The United States' written statement
informed the Court, however, that no action would be taken

"to close the Mission pending a decision in that litigation.
Since the matter is sti1l pending in Our courts, we do not
believe arbitration would be appropriate or timely."

Limits of the Court's task (para. 33)

The Court pointed out that its sole task, as defined by the question
put to it, was to determine whether the United States was obliged to
enter into arbitration under section 21 of the Headquarters Agreement.
w
It had in particular not to decide whether the measures adopted by the
United States in regard to the PL0 Observer Mission ran counter to that
Agreement .

Existence of a dispute (paras. 34-44)

Given the terms of section 21 -a), quoted above, the Court was
obliged to determine whether there existed a dispute between the
United Nations and the United States and, if so, whether that dispute
concerned the interpretation or application of the Headquarters Agreement

and had not been settled by negotiation or other agreed mode of
settlement.

To that end, the Court recalled that the existence of a dispute,
that is to Say, a disagreement on a point of law or a conflict of legal

views or interests, is a matter for objective determination and cannot
depend upon the mere assertions or denials of parties. In the present
case, the Secretary-General was of the view, endorsed by the General
Assembly, that a dispute within the meaning of section 21 existed from w
the moment the Anti-Terrorism Act was signed into law and in the absence

of adequate assurances that the Act would not be applied to the
PL0 Observer Mission; he had moreover iormally contested the consistency
of the Act with the Headquarters Agreement. The United States had never
expressly contradicted that view, but had taken measures against the
Mission and indicated that they were being taken irrespective of any
obligations it might have under that 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. Nonetheless, the United States had during
consultations in January 1988 stated that it "had not yet concluded that
a dispute existed" hetween it and the United Nations, "because the
legislation in question had not yet been implemented", and had
subsequently, while referring to "the current dispute over the status of

the PL0 Observer Mission", expressed the view that arbitration would be
premature. After litigation had been initiated in the domestic courts,
its written statement had informed the Court of its belief that
arbitration would not be "appropriate or timely". The Court could not allow considerations as ta what might be

"appropriate" to prevail over the obligations which derived from
section 21. Moreover, the purpose of the arbitration procedure
thereunder was precisely the settlement of disputes between the
United Nations and the host country without any prior recourse to
municipal courts. Neither could the Court accept that the undertaking
not to take any other action to close the Mission before the decision of

the domestic court had prevented a dispute from arfsing.

The Court deemed that the chief, if not the sole, objective of the
Anti-Terrorism Act was the closure of the office of the PL0 Observer
Mission and noted that the Attorney-General considered himself under an

obligation to take steps for that closure. The Secretary-General had
consistently challenged the decisions first contemplated and then taken
by the United States Congress and Administration. That being so, the
Court was obliged to find 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.

Qualification of the {dispute (paras. 46-50)

As to whether thle dispute concerned the inteiyretation or

application of the Headquarters Agreement, the United Nations had drawr:
attention to the fact that the PL0 had been invited to participate in the
sessions and work of the General Assembly as an observer; hence the Pb8
Mission was covered b,y the provisions of sections 11-13 and should be
enabled to establish and maintain premises and adequate functional

facilities. In the United Nations' view, the measures envisaged by
Congress and eventually taken by the United States Administration would
thus be incompatible with the Agreement if applied to the Mission, and
their adoption had accordingly given rise to a dispute with regard to the
interpretation and application of the Agreement.

Following the adoption of the Anti-Terrorism Act, the United States
had first contemplatetl interpreting it in a manner compatible with ies
obligations under the Agreement, but on 11 March its Acting Peraancnt
Representative had informed the Secretary-General of the
Attorney-General's coinclusion chat the Act required him to closc- the

Mission irrespective of any such obligations. The Secretary-Gene cal ha&
disputed that view on the basis of the principle that international Lw
prevailed over domest ic law. Accordingly, although in a flrst stage ?kt:
discussions had related to the interpretation of the Agreewe~zt a11c1, III

that context, the United States had not disputed that certain of i%s
provisions applied to the PL0 Observer Mission, in a second staze the
United States had given precedence to the Act over the Agreement , 8ncl
that had been challenged by the Secretary-General.

Furthemore, the United States had taken a number of measures

against the PL0 Observer Mission. 'Those had been regaraed by the
Secretary-Generaf as contrary to the Agreement. Without cï;sputing chat
point, the United States had stated that the measures il: question had
been taken "irrespective of any obligations the United Sr.ates may have
under the Agreement". Th~se two positions were irreconciiablc; thus

there existed a dispute between the United Nations and Llie TJnised Staces
concerning the applicatior. of the Iieadquarters Agreement. The question might be raised as to whether in United States domestic

law the Anti-Terrorism Act could only be regarded as having received
effective application when or if, on completion of the proceedings before
the domestic courts, the Mission was in fact closed. That was however
not decisive in regard to section 21, which concerned the application of
the Agreement itself, not of the measures taken within the municipal laws

of the United States.

Condition of non-settlement by other agreed means (paras. 51-56)

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 (-). The Secretary-General had not only invoked the
dispute-settlement procedure but also noted that negotiations must first
be tried, and had proposed that they begin on 20 January 1988. Indeed
consultations had already started on 7 January and were to continue until
10 February. Moreover on 2 March the Acting Permanent Representative of W

the United States had stated in the General Assembly that his Government
had been in regular and frequent contact with the United Nations
Secretariat "concerning an appropriate resolution of this matter". The
Secretary-General had recognized that the United States did not consider
those contacts and consultations to lie formally within the framework of

section 21 and had noted that the United States was taking the position
that, pending evaluation of the situation which would arise from
application of the Anti-Terrorism Act, it could not enter into the
dispute settlement procedure outlined in section 21.

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, considering that their
purpose was the enforcement of the Anti-Terrorism Act and not the
settlement of the dispute concernirig the application of the Agreement.
Furthermore, the United Nations had never agreed to a settlement in the

domestic court S.

Conclusion (paras. 57-58)

The Court had therefore to conclude that the United States was bound

to respect the obligation to enter into arbitration. That conclusion
would remain intact even if it were necessary to Pnterpret the statement
that the measures against the Mission were taken "irrespective of any
obligations" of the United States under the Headquarters Agreement as
intended to refer not only to any substantive obligations under

sections 11-13 but also to the obligation to arbitrate provided for in
section 21. It was sufficient to recall the fundamental principle of
international law that international law prevailed over domestic law, a
principle long endorsed by judicial decisions. For those reasonis, the Court was unanimously of the opinion:

"that the United States of America, as a party to the Agreemea~
between the United Nations and the United States of Arnerica
regarding the Headquarters of the United Nations of

26 June 1947, is under an obligation, in accordance with
section 21 of that Agreement, to enter into arbitration for the
settlement of the dispute between itself and the
United Nations".

Judge Elias appeinded to the Advisory Opinion a declaration
expressing the view tlnat the dispute already came into beirig when the

Congress of the United States passed the Anti--Terrorlsm Act, signed cn
22 December 1987, and adding that the purpose of the Secretary-General
could only be achieveci if Congress adopted further legislation ro amend
the Act.

Judge Oda appended a separate opinion stressing that littls
difference of views silbsisted between the United Nations and the
United States as to the interpretation of the substantive provisirjns of
the Headquarters Agreement affecting the PL0 Observer Mission, and that,

where application of !the Agreement was eoncerned, both sides agreed that
any forced closure of the Mission's office would conflict with the
international obligations of the United States. The issue wûs !sther as
to what course of action within the domestic legal strtct1:re xonld bn,
tantamount to such forced closure, and the consultations that ha3 been

undertaken had been ccsncerned with the applicability not so muc'ri of the
relevant substantive ,provisions of the Agreement (sections Pl--13) as of
the compromissory clause (section 21) itself. The crux of tte maiter :$as
the question whether a domestic legislation had power to overr:de
treaties, an issue which che Court had not been called upon t.> address.

TIiat being so, the General Assembly had not presented the Court with the
question which it would have been the most useful for it to answcu' Jf the
Assembly' s underlying concern was to be met.

Judge Schwebel m,aintained in a separate opinion that, while chc

Court's essential conclusion was tenable, the question posed ailr;,icted of
more than clne answer. He agreed that it was axiomatic tiiat a Çz,ite could
not avoid its international legal obligations by the enactmellt of
domestic legjslation; that a party to an arbitration cia~;~ could nnt
avoid its arbitral obligations by denying the existence of a d~sput.5

by asserting that its orbitration would serve no useful purpose; and
that international arbitral clauses do not require for t rteir
implementation the prior exhaustion of local remedies. However, as to
the interpretation of the lieadquarters Agreement, it was dear in the
current case that there was no difference of interpretation between theUnited Nations and the United States; in the Secretary-General's term,
their interpretation "coincided". The real issue was whether a dispute
had already arisen over the application of the Agreement, or would only
arise if and when the Anti-Terrorism Act were effectively applied to the

PLO's Observer Mission. The Secretary-General had repeatedly taken the
position that a dispute would arise only if the United States failed to
give assurances that current arrangements for the PL0 Mission would be
"maintained" and application to it of the Act would be "deferred". The
United States had given assürances that no action will be taken to close
the Mission pending a decision in current litigation in U.S. courts. It

was not clear why such assurances were not sufficient for the time
being. Should the Act be effectively applied, a dispute would then arise
triggering the U.S. obligation to arbitrate; should the Act be held by
U.S. courts not to apply to the PLO's New York City office, there would
be no dispute. However, it could be reasonably maintained, as the U.N.

Legal Counsel had, that a U.S. court ruling against applying the Act to
the PL0 would not mean that a dispute had never existed but merely would
put an end to the dispute, a consideration which had led Judge Schwebel
to vote for the Court's Opinion.

Judge Shahabuddeen appended a separate opinion expressing the view

that the central issue was whether a dispute existed at the date of the
request for an advisory opinion and noting that the Court had not
determined the stage at which a dispute had come into existence. In his
view, the giving of assent to the Anti-Terrorism Act on 22 December 1987
had automatically brought the competing interests of the parties to the

Headquarters Agreement into collision and precipitated a dispute. As to
any suggestion that no dispute could exist before the Agreement had been
breached by enforced closure of the PL0 office, Judge Shahabuddeen denied
for various reasons that such actual breach formed a precondition of that
kind but, even if it did, the position of the United Nations could be
construed as connoting a claim that the very enactment of the law in

question, whether in itself or taken in conjunction with steps taken in
pursuance of it, interfered with the United Nations' right under the
Agreement to ensure that its permanent invitees were able to function out
of established offices without needless interference; such a claim was -
not so unarguable as to be incapable of giving rise to a real dispute.
The parties agreed that enforced closure of the PL0 office would

consitute a breach of the Agreement, but did not agree as to whether the
Act was in itself creative of a current violation. Accordingly there in
fact existed a dispute concerning the interpretation of the Agreement as
well as its application.