Summary of the Advisory Opinion of 26 April 1988 | INTERNATIONAL COURT OF JUSTICE

Document Number

6731

Document Type

Case

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

Number (Press Release, Order, etc)

1988/1

Date of the Document

Tue, 04/26/1988 - 12:00

Document File

6731.pdf

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

APPLICABILITY OF'THEOBLIGATION TOARBITRATEUNDER SECTION 21OF
THEUNITEDNATICINS HEADQUARTERSAGREEMENT OF26JUNE1947

AdvisoryOpinionof26April 1988

The Court delivered a unanimous Advisory Opinion on "Recalling its resolution 421210 B of 17 December
the question concerning the Applicabil.ityof the Obligation 1987andbearing in mind itsresolution 42229 Aabove,
to Arbitrate under Section 21 of the United Nations Head- "Having considered the reports of the Secretary-
quarters Agreement of 26June 1947.11d:elivered this Advi- ~~~~~~lof and 25 February 1988 [N42/915 and
sory Opinion. after the application of iin accelerated proce- Add.11,
dure. in response to a request submitted by the General "Affirmingthe position of the Secretary-General that a
Assembly of the United Nations under resolution 421229B, disputeexists between the United Nations and the host
adopted on 2March 1988. countryconcerning the interpretationor applicationof the
In its decision, the Court gave its opinion that the United A~~~~~~~~lXtween the united ~~~i~~~and the united
States of America is underan obligation, in accordance with statesof America regarding the ~~~d~~~~~~~o ~f the
section21 ofthe United NationsHeadquartersAgreement, to united ~~~i~)~ dat,ed 26 June g47 tseeresolution 69
enter into arbitration for the settlement of a dispute between(II)], and no;tinghis conc~us~ontshat attemptsat amicable
itself andthe United Nations. settlement were deadlocked and that he had invoked the
The Court was composed as follows: President Ruda; arbitration procedure provided for in section 21 of the
Vice-PresidenrMbaye; Judges Lachs, Nagendra Singh, Agreementby nominating an arbitrator andrequestingthe
Elias, Oda. Ago. Schwebel,Sir Robert Jennings, Bedjaoui, hostcountryto nominate itsownarbitrator,
Ni. Evensen, Tarassov, Guillaumeand Shahabuddeen. "Bearingin mind the constraints of time that require
Judge Elks appended a declaration to the Advisory Opin- the immediate implementation of the dispute settlement
ion. procedure in accordance with section 21 of theAgree-
Judges Oda. SchwebelandShahabuddeenappended sepa- ment.
rate opinions. "Notin grom the report of the Secretary-General10
The GeneralAssembly'srequesthad arisenfromthesitua- February 1988[A/42/915]that the UnitedStatesof Amer-
tion which had developed following the:signingof the Anti- ica was not ina position and was not willing to enter for-
Terrorism Act adopted by the United States Congress in mally into the disputesettlement procedure under section
December 1987,a law which was specifically aimed at the 21 of theHleadquartersAgreement and that the United
hlestine Liberation Organization and inrer alia declared Stateswasstillevaluating the situation,
illegal the establishment or maintenanc:eof an office of the "Takingiri~toccounttheprovisions oftheStatuteofthe
Organization within thejurisdiction ofthe UnitedStates.The ~~~~~~~i co~ualtf~ ~ ~ ~ ~p~ar,t,cularArticles41 and
law thus concerned in particular the office of the PLO 68 thereof,
Observer Mission to the UnitedNations.,established in New
Yorkafterthe General Assembly hadconferred observer sta- ofthe UnitedNations,torequest the InternationalCourtof
tus on the PLO in 1974. ~h~ maintenculceofthe officewas
held by the Secretary-Generalof the United Nations to fall Justice, in pursuance of Article 65 of the statute of the
within theambit ofthe Headquarters Agreement concluded taking into accountthetime constraint:llowingquestion,
with the UnitedStateson 36June 1947.
Alluding to repons submitted bythe Secretary-General of " 'In the light of facts reflected in the reports of the
contacts and conversations he had pursued with the United Statesof America,asa party to the Agreement between
States Administration with a view to preventing the closure
of the PLO office, the Generalssemk,lyput the following regarding the Headquarters of the United Nations [see
question to theCourt: resolution 169 (11)],under an obligation to enter into
"In the light of facts reflected in the reports of the arbitration in accordance with section 21 of theAgree-
Secretary-General. is the United States of America, as a ment?' "
party to the Agreement between the United Nations and
the United Statesof America regarding the Headquarters In an Order dated 9 March 1988the Court found that an
of the United Nations, under an obligation to enter into early answer to the request would be desirable (Rules of
arbitration in accordance with s.ection 21 of the Statesof Americacould beconsidered likelytofurnishinfor-
Agreement?" mationonthequestion(Statute, Art. 66, para. 2),and, accel-
eratingits procedure, fixed25 March 1988as the time-limit
* forthe submissionof 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 Ur~itedStates of America, the German Demo-
Submission oftherequesrandsubsequerlrprocedure cratic Republic and the SyrianArab Republic. At public sit-
(paras. 1-6) tingson 11and 12April 1988,heldfor the purposeofhearing
The question uponwhichtheCourt'sadvisoryopinionhad the comments of any of those participants on the statements
been sought was contained in resoluti~n 42J229 B of the of the others, the Coun heard the comments of the Legal
United Nations General Assembly. actopted on 2 March CounseloftheUnitedNations andhis repliestoquestionsput
1988.This resolution read infull as follows: by certain Members of the Court. None of the Stateshaving
"TheGeneralAssembly, presented written statementsexpressed a desire to be heard.

Secretary-GeneralinaccordancewithArticle65,paragraph 2, oftheStatute. Eventsmaterial tothequalijicationofthesimutior~ (paras.7-22) Inordertoanswerthequestionputtoit,the:Courthadfirst toconsiderwhetherthereexistedbetweentheUnitedNations and the UnitedStatesadisputeascontemplatedbysection21 of the HeadquartersAgreement,the relevantpart ofwhich was wordedasfollows: "(a) Anydisputebetween the United lUationsandthe UnitedStatesconcerning tjheinterpretatiorapplication of this agreement or of my supplementalagreement,
ofthatreporttheRepresentative oftheUnitedStatesnoted:
"that;heUnitedstates Secretaryof Statehad statedthat
theclosingofthat missionwouldconstitutea violationof
UnitedStates obligationunder the HeadquartersAgree-
ment,andthattheUnitedStatesGovernmentwasstrongly
opposedto it; moreovertheUnitedStatesRepresentative
totheUnited NationshadgiventheSecretary-Generalthe
sameassurances".
Theposition takenby theSecretaryof State,namelythat
theUnitedStateswas
"underanobligationtopermitPLOObserverMissionper-
sonneltoenterandremainintheUnitedStatestocarryout
theirofficialfunctionsatUnited NationsHeadquarters",
/> wasalsocitedbyanotherrepresentative andconfirmedbythe
Representativeofthe UnitedStates.
The provisions of the amendment referred to above
became incorporatedinto theUnitedStates"ForeignReia-
tions Authorization Act,FiscalYears1988-1989" as Title
X, the "Anti-TerrorismAct of 1987". Atthe beginningof
December 1987theamendmenthad notyet ken adoptedby
Congress.On7 December,inanticipationofsuchadoption,
the Sec~etary-Generarleminded thePermanentRepresenta-
tive of the UnitedStates of hisviewthat the UnitedStates
was undera legal obligationto maintainthe long-standing
arrangements for thePLO Observer Mission and sought
assuranc~sthat,intheeventtheproposedlegislationbecame
law,thosearrangementswould not beaffected.
The ]Houseand Senate of the United States Congress
adopted the Anti-Terrorism Acotn 15-16 December1987,
andthe followingdaytheGeneralAssembly adoptedresolu-
tion 421210B wherebyit calledupon the host country to
abideby itstreatyobligationsandto provide assurancethat
noactionwould betakenthatwouldinfringeonthearrange-
mentsfortheofficialfunctionsoftheMission.
On22DecembertheForeignRelationsAuthorizationAct,
FiscalYears 1988-1989,was signed intolawby the Presi-
dentof the UnitedStates. TheAnti-TerrorismAct forming
partthereof was,accordingtoitsownterms, totakeeffect90
dayslater.Ininformingthe Secretary-Generao l fthis devel-
opment, theActingPermanentRepresentative oftheUnited
tht:jurisdic-States,on 5January 1988,statedthat:
"Because theprovisionsconcerningthe PLOObserver
Mission may inftinge on the President's constitutional
. authorityand, if implemented,would becontrary to our
internationallegalobligationsunder the United Nations
Headquarters Agreement, the Administration intends,
during the ninety-dayperiod beforethis provision isto
takeeffect,toengageinconsultationswiththeCongressin
an efforttoresolvethismatter."
The Secretary-Generalresponded,however,by observing
thathehadnot receivedthe assurancehe had soughtanddid
notconsiderthatthestatementsoftheUnitedStatesenabled
fullrespectfor the HeadquarterAgreementtobe assumed.
He wenton:
"Under these circumstances,a dispute existsbetween
the Organizationand the United States concerningthe
interpretation andapplicationofthe Headquartersgree-
meqt'andI herebyinvokethedisputesettlementprocedure
setout in section21ofthesaidAgreement.."
The Secretary-Generalthen proposed that negotiations
should begin inconformitywith theprocedure laid downin
section31.
While:agreeingto informaldiscussionst,he UnitedStates
took the position thatit was still evaluating thesituation

189whichwouldarisefromthe applicationofthelegislationand comply withthe requirementsofthe Anti-TerrorismAct, the
couldnotenterinto the dispute settlemenprocedur ef sec- Attorney-General su.@forcompliancein the District Court
tion21.However,accordingto aletterwrittentotheUnited for the Southern.Di!jtrictof New York.The UnitedStates'
States Permanent Representativeby the Secretary-General written statement.,informedthe Court, however, thatno
on2February1988: actionwouldbetaken:
"The section 21 procedure is the on1:ylegal remedy "to closethe Mission pendingdecisioninthat litigation.
availabletotheUnitedNationsinthis matxerand ... the Since the matteis!stillpendingin ourcourts, we do not
timeisrapidlyapproaching whenIwillhave noalternative believe arbitration#woulbeappropriateortimely."
butto pmed eithertogetherwiththeUnitedStateswithin
the frameworkof section 21of the HeadquartersAgree- Limit,oftheCourt'stask
ment or by informing the General As.semblyof the
impassethathasbeenreached." (para.33)
On 11 February 1988the Legal Counsel of the United The Courtpointed1 out that its soletask, as definedbythe
Nations informedthe Legal Adviserof the Departmentof questionputtoit,wastodeterminewhethertheUnitedStates
Stateof the United Nations'choiceof its arbitrator,in the wasobliged toenterinto arbitrationundersection21of the
eventof anarbitrationundersection21,and, in view ofthe HeadquartersAgreement.It had inparticular notto decide
timeconstraints,urgedhimto informtheUnitedNationsas whetherthe measureisadoptedbytheUnitedStatesinregard
scidnaspossibleoftheUnitedStates' choice.Nocommuni- tothePLOObserverMission rancountertothat Agreement.
cationin thatregard was howeverreceivedfromtheUnited
States. Existenceof adispute
On2March1988theGeneralAssemblyadoptedtworeso- (PW'IS3 .4-44)
lutionson thesi~bjwt.In the first, resolution421229A, the
Assembly, interalia,reaffirmed thatthe I'LO should be Giventhetermsofsection21(a),quotedabove,theCourt
enabled to establish and maintain premise?;and adequate was obliged to determinewhetherthere existeda dispute
facilities for the purposes of the Observer Mission;and between the United Nations antheUnitedStatesand, ifso,
expressedthe.viewthatthe applicationoftheAnti-Terrorism tionofthe HeadquartersAgreement andhadnotbeensettledca-
Actinamannerinconsistentwiththatreaffirmationwouldbe bynegotiationor otheragreedmodeofsettlement.
contraryto the intmationai legal obligationsof the United
States under the Headquarters Agreement.,and that the Tothatend, theCourt recalled thattheexistenceof a dis-
dispute-settlementprocedure providedfor in section 21 pute, thatistosay,adisagreementonapointoflaworacon-
shouldbe set in operation.The otherresolution,421229B, flictoflegalviewsorinterests,isamatterforobjectivedeter-
alreadycited, requestedan advisoryopinioi~of the Court. mination and cannotd :epend upon the mere assertionsor
Although the UnitedStatesdidnotparticipateinthevoteon denialsofparties.Inthe presentcase,the Secretary-General
either resolution,itsActingPermanentRepresentativeafter- was ofthe view, endorsedby theGeneralAssembly,that a
wards madea statement pointing out that his Government momentthe Anti-TerrorismAct wassigned intolaw and in
had made no final decision concerning the applicationor theabsenceofadequateassurancesthattheAct wouldnotbe
enforcementof the Anti-Terrorism Actwith respectto the appliedto thePLOOlbserverMission;he hadmoreover for-
PLO Mission andthat it remainedits intention"to find an mallycontested the consistencyof the Act with the Head-
appropriateresolutionofthisproblemin lightoftheCharter quartersAgreement.TheUnitedStateshadnever expressly
oftheUnitedNations,theHeadquartenAgreement, andthe contradicted that view,but hadtaken measuresagainst the
lawsoftheUnitedStates". Mission andindicatedthattheywerebeing takenirrespective
ofanyobligationsitnnighthave underthat Agreement.
Materialeventssubsequenttothe submission oftherequest However,in the Court's view,the merefact thata Party
para^.23-32) accusedof thebreachof a treatydid not advanceany argu-
The Court, whilenoting that the GeneralAssemblyhad ment to justify its conductunder internationallaw did not
requestedittogiveitsopinion "in the lightoffacts reflectedpreventthe opposingattitudesofthe partiesfromgiving rise
inthereports"presentedbythe Secretary-Ge:neralriorto2 to adisputeconcernin~the treaty's interpretatnrapplica-
March1988,didnot consider inthe circumstancesthatthat tion. Nonetheless,theUnitedStateshadduringconsultations
formof wordsrequiredit tocloseitseyes to lelevantevents in January 1988stated thatit "had notyetconcludedthata
subsequenttothatdate. It thereforetookintoaccountthefol- dispute existed" between it and the United Nations,
lowingdevelopments,whichhad occurredafterthesubmis- "becausethelegislationinquestionhadnotyet beenimple-
sionoftherequest. mented", andhadsubsequently, while referringto"hecur-
On1I March 1988,the UnitedStatesActingPermanent rent dispute overthe ;statusof thePLOObserverMission",
Representative informedthe !3ecmtary-Ge11era l at the expressed the view that arbitration would be premature.
Attorney-General haddeterminedthat the Anti-Tenorism After litigationhadzn initiatedin the domesticcourts,its
Act requiredhim to close the officeofthe IPU)Observer written statementhadlinformedthe Courtof its belief that
Mission,butthat,iflegalactionswereneeded toensurecom- arbitrationwould notIbe"appropriateortimely".
pliance,nofurtheractionstocloseitwouldbet:aken TheCourtcouldnotallowconsiderationsastowhatmight
"pendinga decisionin suchlitigation.Undlerthe circum- be "appropriate" to prevail over the obligationswhich
stances, theUnitedStatesbelievesthatsub~missioonfthis derivedfromsection21.Moreover,thepurposeof the arbi-
mattertoarbitrationwould notserveausefillpurpose". trationproceduretheneunderwas precisely thesettlementof
The Secretary-Generaltook strongissuewiththatviewpoint disputesbetween theUnitedNations andthe host country
inaletterof 15March.Meanwhilethe Attorney-Generali,n withoutanypriorrecoursetomunicipalcourts.Neithercould
a letter ofMarch,hadwarned thePermanentObserverof the Court accept that the undertaki.notto take any other
thePLO that,asof21March, themaintenanceofhisMission actiontoclosetheMissionbefore the pecisionofthedomes-
wouldbe unlawful.SincethePLO Missiontcok nostepsto ticcourthadpreventedadisputefromarising. TheCourtdeemedthat thechief,ifnotthesole,objective ment", inthetermsofsection21(a). The Secretary-General
oftheAnti-TerrorismAct wastheclosbreofthe officeofthe had not only invoked the dispute-settlementprocedurebut
PLOObserver Mission and noted thaf-theP~ttoniey-General alsonotedthat negotiationsmust first betried, andhadpro-
consideredhimself underanobligationto takestepsforthat posedthatthey begin on 20 January 1988. Indeedconsulia-
closure. The Secretary-Generahladconsistentlychallenged tionshadalreadystartedon 7 January andwereto continue
thedecisionsfirstontemplatedandthentakenbythe United until 10February. Moreover on 2 Marchthe ActingPerma-
States Congressand Administration. Thatbeing so, the nent Representativeof the United Stateshad stated in the
Court wasobligedto find thatthe opposing attitudesof the GeneralAssemblythathisGovernmenthadbeen inregular
UnitedNationsandthe UnitedStatesshowedtheexistenceof and fiquent contact with the United Nations Secretariat
a dispute,whateverthe dateonwhichit mightbe deemedto "concerning an appropriateresolutionof this matter". Ibe
havearisen. Secretary-Generalhadrecognizedthat the'UnitedStatesdid
notconsiderthose contactsandconsultationsto lieformally
Qualificationufthedispute withinthe framewodtof section21 and had noted that the
(paras.46-50) UnitedStateswastakingthe positionthat, pendingevalua-
Asto whetherthedisputeconcernedthe interpretation or tion of the situationwhich wouldarisefrom applicationof
application of the Headquarters Agreement,the United the Anti-TerrorismAct, itcouldotenterintothedisputeset-
Nationshaddrawn attention tothefactthatthePI-0 hadbeen tlemcr~ptrocedureoutlinedinsection21.
invitedtoparticipateinthe!sessionandworkofthe General The Court found that, taking into account the United
Assemblyas an observer;hencethePLOMissionwascov- States' attitude, the Secretary-Generhlad in the circum-
ered by the provisionsof sections 11-13 and should be stances exhaustedsuchpossibilitiesof negotiations were
enabled to establish and n~.aintapremises and adequate open tohim,norhadany"otheragreedmodeofsettlement"
functionalfacilities.Inthe'[JnitedNations' view, themeas- been contemplatedby the United Nations andthe United
ures envisagedby Congress and eventua'lly taken by the States. In particular, the current proceedingsbefore.the
United States Administrationwould thus be incompatible UnitedStatescourtscouldnotconstitute an"agreedmethod
withthe AgreementifappliedtotheMissio~ia ,ndtheiradop- ofsettlement"within the meaningofsection21, considering
tionhadaccordingly givenrisetoadispute lwithregardtothe thattheirpurposewastheenforcementoftheAnti-Terroiism
interprepatioandapplicationoftheAgreement. Act and not the settlementof the dispute concerning the
Following theadoption of the Anti-Te:morism Act, the application of the Agreement. Furthermore, the United
UnitedStateshadfirstconte!:mplateinterpretingitina man- Nationshad never agreedto a settlementin the domestic
nercompatiblewithits obligationsundertheAgreement,but courts.
on 11 Mmh its Acting :PermanentRe:presentativehad
informed the Secretary-Generaol f the Attorney-General's Conclusion
conclusion thatthe Act requiredhim to close the Mission @ara~. 57-58)
irrespectiveof anysuchoblhgations.The Secretary-General TheCourthadthereforetoconcludethattheUnitedStates
haddisputedthatview onthebasisoftheprinciplethatinter- wasboundto respectthe obligationto enterinto arbitration.
national law prevailed over domestic law. Accordingly, That conclusionwouldremainintact evenif it wereneces-
althoughin a first stage the discussionshadated to the saryto interpret the statementthat themeasuresagainstthe
interpretationof the Agreementand, in that context, the Missionweretaken"irrespectiveof anyobligations"ofthe
UnitedStateshad notdisputedthatcertainof itsprovisions UnitedStatesundertheHeadquarters Agreementasintended
appliedto thePLOObserverMission,in a secondstage the torefernot onlytoanysubstantiveobligationsundersections
United States had given precedenceto the A.ctover the 11-13but alsoto the obligationto arbitrateprovidedfor in
Agreement,andthathad beenchallengedby the Secretary- section21. It wassufficienttorecall thefundamental princi-
General. pleof internationallawthat internationallawprevailedover
Furthermore, the UniteclStates had taken anumber of domestic law, a principle long endorsedby judicial deci-
measures against the PLOl ObserverMission. Those had sions.
been regardedby the Secretary-Generalas cotmiry to the For those reasons, the Courtwas unanimouslyof the
Agreement.Withoutdisputing that point, lhe UnitedStates opinion:
hadstatedthatthemeasuresinquestionhadbeentaken"im- "that the United States of America, as a party to the
spectiveofanyobligationstheUnitedStatesmayhave under Agreement betweenthe United Nations andthe United
the Agreement".Those two positionswe:reirreconcilable; States of America regarding the Headquartersof the
thus there existeda disputebetweentheUtlitedNations and UniitedNationsof26June 1947,isunderanobligation,in
the UnitedStates concerniiigthe applicationof the Head- accordancewith section21 of that Agreement,to enter
quartersAgreement. into arbitdon for the settlementofthe disputebetween
'Thequestion mightbe Kaisedas to whether in United itselfandtheUnitedNations".
States domesticlaw the Ariti-TerrorismAct could only be
regardedashavingreceivecleffectiveapplicationwhenorif,
oncompletionoftheproceedingsbeforethe:domesticcourts,
the Missionwasin fact closed. Thatwashowever notdeci-
siveinregardtosection21,whichconcernedthe application
ofthe Agreement itself,nol:ofthemeasurestakenwithinthe
municipal lawsoftheUnite:dStates. Judge Eliasappendedto theAdvisory Opiniona declara-
being when the Congnss of the United States paqsedthe
Condition ofnon-settlemenbtyother agreedmeans Anti-TerrorismAct, sined on 22 December1987,andadd-
(P~s. 51-56) , ing thatthepurposeo- the Secretary-Generalcould onlybe
The Courtthen conside~d whether thedisputewas one achievedifCongressadoptedfurtherlegislationtoamendthe
"not settledby negotiationor other agreedmode ofsettle- Act.
''*.
I JudgeOh appendedaseparateopinionstressingthaltittle wouldbe "maintained" andapplication tooifttheAct would
differenceof views subsistedbetweenthe United Nations be "defexd'~. TheUnitedStateshadgivenassurancesthat
andtheUnitedStatesasto the interpretatiof the substan- noactionwould betakentoclosetheMission pending adeci-
tive provisionsoftheHeadquartersAgreementaffectingthe sionincurrent litigationinU.S. courts. Itwasnotclearwhy
PEO Observer Mission,and that, whereapplicationof the such assuranceswere not sufficientfor the time being.
closureofthe Mission'soffice1-jouldconflictwiththe inter- Should theActbe:effectively applied,a disputewould then
national obligationsof the United States. The issue was Act be held by U..S.courtsnot to applyto the PL09sNewthe
ratheras to whatcourseof actionwithinthedomestic legal YorkCity office, therewouldbe no dispute. However, it
structurewould be tamunount to suchfcmed closure, and couldbereasonablymaintained, as theU.N. Legal Counsel
t!!econsultationsthat had beenundertakenhad beencon- hard,thata U.S. a~urtruling againstapplying theActto the
cernedwiththeapplicabilitynotsomuchodtherelevantsub- PI-0 would not mean that a dispute had never existed
stantive provisionsof the Agreement(sections11-13)asof but merely would put an end to the dispute, a considera-
thecompromissoryclause(section 21)itself.Thecruxofthe tion whichhad led JudgeSchwebelto votefor the Court's
matterwas thequestionwhethera domes~tilcegislationhad Opinion.
powerto overridetreaties,an issuewhichtheCourthadnot
been called upon to address. Thatbeing:so, the General Judge Shahabrdddeenappended a separate opinion
Assemblyhad notpresented the Court with the question expressingtheviewthatthecentralissuewaswhetheradis-
whichit wouldhavebeenthemostusefulfor it to answer if puteexistedattheldateoftherequestforanadvisoryopinion
the Assembly's underlyincgoncernwastobemet. and notingthat the Courthad not determined the stageat
whichadispute haticomeintoexistence.Inhisview,thegiv-
JudgeSchwekl maintainedin a sepa~ateopinion that, ingofassenttotheAnti-TerrorismActon 22December1987
whiletheCow's essentialconclusionwastenable, theques- hadautomaticallyIxoughtthecompetinginterestsofthepar-
tionposedadmittedofmorethanone answcr.Heagreedthat tiestotheHeadquartersAgreementintocollisionandprecip-
legal obligationsby the enactmentof donlesticlegislation; existbeforetheeAgpeementhad beenbreachedby enforcedcould
thatapartyto anarbitrationclausecouldnotavoiditsarbitral closureof thePLC)office, JudgeShahabuddeendeniedfor
obligationsbydenyingtheexistenceofadisputeorbyassert- variousreasons that such actualbreachformeda precondi-
ing that its arbitrationwouldserve no useful purposand tionofthatkindbut, evenifitdid, the positionofthe United
that internationalarbitral clauses do not require for theirNationscould beconstruedasconnoting aclaimthatthevery
implementationthepriorexhaustionoflocalremedies.How- enactmentofthelawinquestion,whetherinitselfortakenin
ever, astothe interpretationhe HeadquartersAgreement, conjunctionwith steps taken in pursuanceof it, interfered
itwasclearinthecurrentcasethattherewasnodifferenceof withtheUnitedNations'rightunder the Agreementto ensure
interpretationbetweenthe United Nations and the United thatitspermanenti:nviteeswereabletofunctionoutof estab-
States;in the Secretary-General'serm, their interpretation lishedofficeswithoutneedlessinterference;suchaclaimwas
"coincided". The real issue was whether a dispute had notso unarguablecisto beincapableof giving riseto a real
already ariwn 0ve.rthe application ofthe:Agreement, or disputeThepartiesagreedthat enforcedclosure ofthePLO
wouldonly arise if and whenthe Anti-TerrorismAct were officewouldconsin~teabreachoftheAgreement,butdidnot
effectively appliedto thePLO's Observtx Mission. The agreeastowhethertheAct wasinitselfcreativeofacurrent
Secretary-Generalhad repeatedly taken the positionhat a violation. Accorditlglythere in fact existeda dispute con-
disputewouldariseonly if the UnitedStates failedto give cerning the interpretationof the Agreementas well as its
assurances that currentarrangementsfor the PLO Mission application.

Document file FR

6730.pdf

Document Long Title

Summary of the Advisory Opinion of 26 April 1988