COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

APPLICABILITE DE L’OBLIGATION D’ARBITRAGE
EN VERTU DE LA SECTION 21 DE LACCORD
DU 26 JUIN 1947 RELATIF AU SIEGE
DE L'ORGANISATION DES NATIONS UNIES

AVIS CONSULTATIF DU 26 AVRIL 1988

1988

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICABILITY OF THE OBLIGATION
TO ARBITRATE UNDER SECTION 21 OF THE
UNITED NATIONS HEADQUARTERS
AGREEMENT OF 26 JUNE 1947

ADVISORY OPINION OF 26 APRIL 1988
Mode officiel de citation :

Applicabilité de l'obligation d'arbitrage en vertu de la section 21 de l'accord
du 26 juin 1947 relatif au siège de l'Organisation des Nations Unies,
avis consultatif, C.I.J. Recueil 1988, p. 12.

Official citation :

Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12.

N° de vente: 5 4 3
Sales number

12

INTERNATIONAL COURT OF JUSTICE
YEAR 1988

26 April 1988

APPLICABILITY OF THE OBLIGATION
TO ARBITRATE UNDER SECTION 21 OF THE
UNITED NATIONS HEADQUARTERS
AGREEMENT OF 26 JUNE 1947

Headquarters Agreement between the United Nations and the United States of
America — Dispute settlement clause — Existence of a dispute — Alleged breach
of treaty — Significance of behaviour or decision of party in absence of any argu-
ment by that party to justify its conduct under international law — Implementation
of contested decision and existence of a dispute — Whether dispute concerns “the
interpretation or application” of the Agreement — Whether dispute one “not settled
by negotiation or other agreed mode of settlement” — Principle that international
law prevails over national law.

ADVISORY OPINION

Present: President RUDA; Vice-President MBAYE; Judges LACHS, NAGENDRA
SINGH, ELIAS, ODA, AGo, SCHWEBEL, Sir Robert JENNINGS, BEDJAOUI,
NI, EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN; Registrar
VALENCIA-OSPINA.

Concerning the applicability of the obligation to arbitrate under section 21 of
the United Nations Headquarters Agreement of 26 June 1947,

THE COURT,

composed as above,

after deliberation,

gives the following Advisory Opinion:

1. The question upon which the advisory opinion of the Court has been
asked was contained in resolution 42/229 B of the United Nations General As-
sembly, adopted on 2 March 1988. On the same day, the text of that resolution

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1988
26 April
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HEADQUARTERS AGREEMENT (ADVISORY OPINION) 13

in English and French was transmitted to the Court, by facsimile, by the United
Nations Legal Counsel. By a letter dated 2 March 1988, addressed by the Secre-
tary-General of the United Nations to the President of the Court (received by
facsimile on 4 March 1988, and received by post and filed in the Registry on
7 March 1988) the Secretary-General formally communicated to the Court the
decision of the General Assembly to submit to the Court for advisory opinion
the question set out in that resolution. The resolution, certified true copies
of the English and French texts of which were enclosed with the letter and
included in the facsimile transmission, was in the following terms:

“The General Assembly,

Recalling its resolution 42/210B of 17 December 1987 and bearing in
mind its resolution 42/229 A above,

Having considered the reports of the Secretary-General of 10 and 25 Feb-
ruary 1988 [A/42/915 and Add.1],

Affirming the position of the Secretary-General that a dispute exists
between the United Nations and the host country concerning the interpre-
tation 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 (ID], and noting his con-
clusions that attempts at amicable settlement were deadlocked and that
he had invoked the arbitration procedure provided for in section 21 of
the Agreement by nominating an arbitrator and requesting the host country
to nominate its own arbitrator,

Bearing in mind the constraints of time that require the immediate im-
plementation of the dispute settlement procedure in accordance with sec-
tion 21 of the Agreement,

Noting from the report of the Secretary-General of 10 February 1988
[A/42/915] that the United States of America was not in a position and was
not willing to enter formally into the dispute settlement procedure under
section 21 of the Headquarters Agreement and that the United States was
still evaluating the situation,

Taking into account the provisions of the Statute of the International
Court of Justice, in particular Articles 41 and 68 thereof,

Decides, in accordance with Article 96 of the Charter of the United
Nations, to request the International Court of Justice, in pursuance of
Article 65 of the Statute of the Court, for an advisory opinion on the fol-
lowing question, taking into account the time constraint:

‘In the light of facts reflected in the reports of the Secretary-General
[A/42/915 and Add.1], is the United States of America, as a party to the
Agreement between the United Nations and the United States of Amer-
ica regarding the Headquarters of the United Nations [see resolution
169 (I])], under an obligation to enter into arbitration in accordance with
section 21 of the Agreement? ”

A copy of resolution 42/229 À, referred to in the above resolution, was also
enclosed with the Secretary-General’s letter.

2. The notice of the request for an advisory opinion prescribed by Article 66,
paragraph 1, of the Statute of the Court, was given on 3 March 1988 by telegram
from the Registrar to all States entitled to appear before the Court.
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 14

3. By an Order dated 9 March 1988 the Court found that an early answer
to the request for advisory opinion would be desirable, as contemplated by
Article 103 of the Rules of Court. By that Order the Court decided that the
United Nations and the United States of America were considered likely to be
able to furnish information on the question, in accordance with Article 66,
paragraph 2, of the Statute, and fixed 25 March 1988 as the time-limit within
which the Court would be prepared to receive written statements from them on
the question; and that any other State party to the Statute which desired to do
so might submit to the Court a written statement on the question not later than
25 March 1988. Written statements were submitted, within the time-limit so
fixed, by the Secretary-General of the United Nations, by the United States of
America, and by the German Democratic Republic and by the Syrian Arab
Republic.

4. By the same Order the Court decided further to hold hearings, opening on
11 April 1988, at which oral comments on written statements might be submit-
ted to the Court by the United Nations, the United States and such other States
as should have presented written statements.

5. The Secretary-General of the United Nations transmitted to the Court,
pursuant to Article 65, paragraph 2, of the Statute, a dossier of documents likely
to throw light upon the question; these documents were received in the Registry
in instalments between 11 and 29 March 1988.

6. At a public sitting held on 11 April 1988, an oral statement was made to
the Court by Mr. Carl-August Fleischhauer, the United Nations Legal Counsel,
on behalf of the Secretary-General. None of the States having presented written
statements expressed a desire to be heard. Certain Members of the Court put
questions to Mr. Fleischhauer, which were answered at a further public sitting
held on 12 April 1988.

7. The question upon which the opinion of the Court has been re-
quested is whether the United States of America (hereafter referred to as
“the United States”), as a party to the United Nations Headquarters
Agreement, is under an obligation to enter into arbitration. The Head-
quarters Agreement of 26 June 1947 came into force in accordance with
its terms on 21 November 1947 by exchange of letters between the Secre-
tary-General and the United States Permanent Representative. The Agree-
ment was registered the same day with the United Nations Secretariat, in
accordance with Article 102 of the Charter. In section 21, paragraph (a),
it provides as follows:

“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

6
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 15

agree upon a third, then by the President of the International Court
of Justice.”

There is no question but that the Headquarters Agreement is a treaty in
force binding the parties thereto. What the Court has therefore to deter-
mine, in order to answer the question put to it, is whether there exists a
dispute between the United Nations and the United States of the kind
contemplated by section 21 of the Agreement. For this purpose the Court
will first set out the sequence of events, preceding the adoption of resolu-
tions 42/229A and 42/229B, which led first the Secretary-General and
subsequently the General Assembly of the United Nations to conclude
that such a dispute existed.

8. The events in question centred round the Permanent Observer
Mission of the Palestine Liberation Organization (referred to hereafter as
“the PLO”) to the United Nations in New York. The PLO has enjoyed in
relation to the United Nations the status of an observer since 1974; by
General Assembly resolution 3237 (XXIX) of 22 November 1974, the
Organization was invited to “participate in the sessions and the work
of the General Assembly in the capacity of observer”. Following this invi-
tation, the PLO established an Observer Mission in 1974, and maintains
an office, entitled office of the PLO Observer Mission, at 115 East 65th
Street, in New York City, outside the United Nations Headquarters
District. Recognized observers are listed as such in official United Nations
publications: the PLO appears in such publications in a category of
“organizations which have received a standing invitation from the Gen-
eral Assembly to participate in the sessions and the work of the General
Assembly as observers”.

9. In May 1987 a bill (S.1203) was introduced into the Senate of the
United States, the purpose of which was stated in its title to be “to make
unlawful the establishment or maintenance within the United States of
an office of the Palestine Liberation Organization”. Section 3 of the bill
provided that

“It shall be unlawful, if the purpose be to further the interests
of the Palestine Liberation Organization or any of its constituent
groups, any successor to any of those, or any agents thereof, on or
after the effective date of this Act —

(1) to receive anything of value except informational material
from the PLO or any of its constituent groups, any successor thereto,
or any agents thereof;

(2) to expend funds from the PLO or any of its constituent groups,
any successor thereto, or any agents thereof; or

(3) notwithstanding any provision of the law to the contrary, to
establish or maintain an office, headquarters, premises, or other fa-
cilities or establishments within the jurisdiction of the United States

7
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 16

at the behest or direction of, or with funds provided by the Palestine
Liberation Organization or any of its constituent groups, any succes-
sor to any of those, or any agents thereof.”

10. The text of this bill was repeated in the form of an amendment, pre-
sented in the United States Senate in the autumn of 1987, to the “Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989”. From the
terms of this amendment it appeared that the United States Government
would, if the bill were passed into law, seek to close the office of the PLO
Observer Mission. The Secretary-General therefore explained his point of
view to that Government, by a letter to the United States Permanent
Representative dated 13 October 1987. In that letter he emphasized that
the legislation contemplated “runs counter to obligations arising from the
Headquarters Agreement”. On 14 October 1987 the PLO Observer
brought the matter to the attention of the United Nations Committee on
Relations with the Host Country.

11. On 22 October 1987, the view of the Secretary-General was
summed up in the following statement made by the Spokesman for the
Secretary-General (subsequently endorsed by the General Assembly in
resolution 42/210B):

“The members of the PLO Observer Mission are, by virtue of reso-
lution 3237 (XXIX), invitees to the United Nations. As such, they are
covered by sections 11, 12 and 13 of the Headquarters Agreement of
26 June 1947. There is therefore a treaty obligation on the host coun-
try to permit PLO personnel to enter and remain in the United States
to carry out their official functions at United Nations Headquarters.”

In this respect, it may be noted that section 11 of the Headquarters Agree-
ment provides that

“The federal, state or local authorities of the United States shall
not impose any impediments to transit to or from the headquarters
district of: (1) representatives of Members. . . or the families of such
representatives ...;...(5) other persons invited to the headquarters
district by the United Nations ... on official business . . .”

Section 12 provides that

“The provisions of section 11 shall be applicable irrespective of the
relations existing between the Governments of the persons referred
to in that section and the Government of the United States.”

Section 13 provides (inter alia) that

“Laws and regulations in force in the United States regarding the

8
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 17

entry of aliens shall not be applied in such manner as to interfere with
the privileges referred to in section 11.”

12. When the report of the Committee on Relations with the Host
Country was placed before the Sixth Committee of the General Assembly
on 25 November 1987, the representative of the United States noted:

“that the United States Secretary of State had stated that the closing
of that mission would constitute a violation of United States obliga-
tion under the Headquarters Agreement, and that the United States
Government was strongly opposed to it; moreover the United States
representative to the United Nations had given the Secretary-Gen-
eral the same assurances” (A/C.6/42/SR.58).

When the draft resolution which subsequently became General Assembly
resolution 42/210B was put to the vote in the Sixth Committee on 11 De-
cember 1987, the United States delegation did not participate in the voting
because in its opinion: “it was unnecessary and inappropriate since it
addressed a matter still under consideration within the United States
Government”. The position taken by the United States Secretary of
State, namely:

“that the United States was under an obligation to permit PLO Ob-
server Mission personnel to enter and remain in the United States to
carry out their official functions at United Nations Headquarters”

was Cited by another delegate and confirmed by the representative of the
United States, who referred to it as “well known” (A/C.6/42/SR.62).

13. The provisions of the amendment referred to above became incor-
porated into the United States “Foreign Relations Authorization Act, Fis-
cal Years 1988 and 1989” as Title X, the “Anti-Terrorism Act of 1987”. At
the beginning of December 1987 the Act had not yet been adopted by the
United States Congress. In anticipation of such adoption the Secretary-
General addressed a letter, dated 7 December 1987, to the Permanent
Representative of the United States, Ambassador Vernon Walters, in
which he reiterated to the Permanent Representative the view previously
expressed by the United Nations that the members of the PLO Obser-
ver Mission are, by virtue of General Assembly resolution 3237 (XXIX),
invitees to the United Nations and that the United States is under an ob-
ligation to permit PLO personnel to enter and remain in the United States
to carry out their official functions at the United Nations under the Head-
quarters Agreement. Consequently, it was said, the United States was
under a legal obligation to maintain the current arrangements for the PLO
Observer Mission, which had by then been in effect for some 13 years. The
Secretary-General sought assurances that, in the event that the proposed

9
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 18

legislation became law, the present arrangements for the PLO Observer
Mission would not be curtailed or otherwise affected.

14. In a subsequent letter, dated 21 December 1987, after the adoption
on 15/16. December of the Act by the United States Congress, the Secre-
tary-General informed the Permanent Representative of the adoption on
17 December 1987 of resolution 42/210B by the General Assembly. By
that resolution the Assembly

“Having been apprised of the action being considered in the host
country, the United States of America, which might impede the
maintenance of the facilities of the Permanent Observer Mission of
the Palestine Liberation Organization to the United Nations in New
York, which enables it to discharge its official functions,

me ee

1. Reiterates that the Permanent Observer Mission of the Pa-
lestine Liberation Organization to the United Nations in New York
is covered by the provisions of the Agreement between the United
Nations and the United States of America regarding the Headquar-
ters of the United Nations and should be enabled to establish and
maintain premises and adequate functional facilities, and that the
personnel of the Mission should be enabled to enter and remain in
the United States to carry out their official functions;

2. Requests the host country to abide by its treaty obligations
under the Headquarters Agreement and in this connection to refrain
from taking any action that would prevent the discharge of the offi-
cial functions of the Permanent Observer Mission of the Palestine
Liberation Organization to the United Nations ;”.

15. On 22 December 1987 the Foreign Relations Authorization Act,
Fiscal Years 1988 and 1989, was signed into law by the President of the
United States. Title X thereof, the Anti-Terrorism Act of 1987, was,
according to its terms, to take effect 90 days after that date. On 5 January
1988 the Acting Permanent Representative of the United States to the
United Nations, Ambassador Herbert Okun, in a reply to the Secretary-
General’s letters of 7 and 21 December 1987, informed the Secretary-
General of this. The letter went on to say that

“Because the provisions concerning the PLO Observer Mission
may infringe on the President’s constitutional authority and, if
implemented, would be contrary to our international legal obli-
gations under the United Nations Headquarters Agreement, the

10
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 19

Administration intends, during the ninety-day period before this pro-
vision is to take effect, to engage in consultations with the Congress
in an effort to resolve this matter.”

16. On 14 January 1988 the Secretary-General again wrote to Ambas-
sador Walters. After welcoming the intention expressed in Ambassador
Okun’s letter to use the ninety-day period to engage in consultations with
the Congress, the Secretary-General went on to say:

“As you will recall, I had, by my letter of 7 December, informed
you that, in the view of the United Nations, the United States is under
a legal obligation under the Headquarters Agreement of 1947 to
maintain the current arrangements for the PLO Observer Mission,
which have been in effect for the past 13 years. I had therefore asked
you to confirm that if this legislative proposal became law, the pres-
ent arrangements for the PLO Observer Mission would not be cur-
tailed or otherwise affected, for without such assurance, a dispute
between the United Nations and the United States concerning the
interpretation and application of the Headquarters Agreement
would exist...”

Then, referring to the letter of 5 January 1988 from the Permanent Rep-
resentative and to declarations by the Legal Adviser to the State Depart-
ment, he observed that neither that letter nor those declarations

“constitute the assurance I had sought in my letter of 7 December
1987 nor do they ensure that full respect for the Headquarters Agree-
ment can be assumed. Under these circumstances, a dispute exists
between the Organization and the United States concerning the inter-
pretation and application of the Headquarters Agreement and I
hereby invoke the dispute settlement procedure set out in section 21
of the said Agreement.

According to section 21 (a), an attempt has to be made at first to
solve the dispute through negotiations, and I would like to propose
that the first round of the negotiating phase be convened on Wednes-
day, 20 January 1988...”

17. Beginning on 7 January 1988, a series of consultations were held;
from the account of these consultations presented to the General Assem-
bly by the Secretary-General in the report referred to in the request for
advisory opinion, it appears that the positions of the parties thereto were
as follows:

“the [United Nations] Legal Counsel was informed that the United
States was not in a position and not willing to enter formally into the
dispute settlement procedure under section 21 of the Headquarters
Agreement; the United States was still evaluating the situation and
had not yet concluded that a dispute existed between the United Na-
tions and the United States at the present time because the legislation
in question had not yet been implemented. The Executive Branch

11
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 20

was still examining the possibility of interpreting the law in confor-
mity with the United States obligations under the Headquarters
Agreement regarding the PLO Observer Mission, as reflected in the
arrangements currently made for that Mission, or alternatively of
providing assurances that would set aside the ninety-day period for
the coming into force of the legislation.” (A/42/915, para. 6.)

18. The United Nations Legal Counsel stated that for the Organization
the question was one of compliance with international law. The Head-
quarters Agreement was a binding international instrument the obliga-
tions of the United States under which were, in the view of the Secretary-
General and the General Assembly, being violated by the legislation in
question. Section 21 of the Agreement set out the procedure to be fol-
lowed in the event of a dispute as to the interpretation or application of the
Agreement and the United Nations had every intention of defending its
rights under that Agreement. He insisted, therefore, that if the PLO Ob-
server Mission was not to be exempted from the application of the law,
the procedure provided for in section 21 be implemented and also that tech-
nical discussions regarding the establishment of an arbitral tribunal take
place immediately. The United States agreed to such discussions but only
on an informal basis. Technical discussions were commenced on 28 Janu-
ary 1988. Among the matters discussed were the costs of the arbitration, its
location, its secretariat, languages, rules of procedure and the form of the
compromis between the two sides (ibid., paras. 7-8).

19. On 2 February 1988 the Secretary-General once more wrote to
Ambassador Walters. The Secretary-General took note that

“the United States side is still in the process of evaluating the situa-
tion which would arise out of the application of the legislation and
pending the conclusion of such evaluation takes the position that
it cannot enter into the dispute settlement procedure outlined in
section 21 of the Headquarters Agreement”.

The Secretary-General then went on to say that

“The section 21 procedure is the only legal remedy available to the
United Nations in this matter and since the United States so far has
not been in a position to give appropriate assurances regarding the
deferral of the application of the law to the PLO Observer Mission,
the time is rapidly approaching when I will have no alternative but to
proceed either together with the United States within the framework
of section 21 of the Headquarters Agreement or by informing the
General Assembly of the impasse that has been reached.”

20. On 11 February 1988 the United Nations Legal Counsel, referring
to the formal invocation of the dispute settlement procedure on 14 Janu-

12
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 21

ary 1988 (paragraph 16 above), informed the Legal Adviser of the State
Department of the United Nations’ choice of its arbitrator, in the event of
an arbitration under section 21 of the Headquarters Agreement. In view of
the time constraints under which both parties found themselves, the Legal
Counsel urged the Legal Adviser of the State Department to inform the
United Nations as soon as possible of the choice made by the United
States. No communication was received in this regard from the United
States.

21. On 2 March 1988 the General Assembly, at its resumed forty-
second session, adopted resolutions 42/229 A and 42/229B. The first of
these resolutions, adopted by 143 votes to 1, with no abstentions, contains
(inter alia) the following operative provisions:

“The General Assembly,

1. Supports the efforts of the Secretary-General and expresses its
great appreciation for his reports;

2. Reaffirmsthat the Permanent Observer Mission of the Palestine
Liberation Organization to the United Nations in New York is cov-
ered by the provisions of the Agreement between the United Nations
and the United States of America regarding the Headquarters of
the United Nations [see resolution 169 (ID)] and that it should be
enabled to establish and maintain premises and adequate functional
facilities and that the personnel of the Mission should be enabled to
enter and remain in the United States of America to carry out their
official functions;

3. Considers that the application of Title X of the Foreign Rela-
tions Authorization Act, Fiscal Years 1988 and 1989, in a manner
inconsistent with paragraph 2 above would be contrary to the inter-
national legal obligations of the host country under the Headquar-
ters Agreement;

4. Considers that a dispute exists between the United Nations and
the United States of America, the host country, concerning the inter-
pretation or application of the Headquarters Agreement, and that the
dispute settlement procedure set out in section 21 of the Agreement
should be set in operation;”

The second resolution 42/229 B, adopted by 143 votes to none, with no
abstentions, has already been set out in full in paragraph 1 above.

22. The United States did not participate in the vote on either resolu-
tion; after the vote, its representative made a statement, in which he said:

“The situation today remains almost identical to that prevailing
when resolution 42/210B was put to the vote in December 1987. The

13
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 22

United States has not yet taken action affecting the functioning of
any Mission or invitee. As the Secretary-General relayed to the
Assembly in the 25 February addendum to his report of 10 February,
the United States Government has made no final decision concern-
ing the application or enforcement of recently passed United States
legislation, the Anti-Terrorism Act of 1987, with respect to the Per-
manent Observer Mission of the Palestine Liberation Organization
(PLO) to the United Nations in New York.

For these reasons, we can only view as unnecessary and premature
the holding at this time of this resumed forty-second session of the
General Assembly ...

The United States Government will consider carefully the views
expressed during this resumed session. It remains the intention of
this Government to find an appropriate resolution of this problem in
light of the Charter of the United Nations, the Headquarters Agree-
ment, and the laws of the United States.”

*

23. The question put to the Court is expressed, by resolution 42/229 B,
to concern a possible obligation of the United States, “In the light of [the]
facts reflected in the reports of the Secretary-General [A/42/915 and
Add.1]”, that is to say in the light of the facts which had been reported to
the General Assembly at the time at which it took its decision to request an
opinion. The Court does not however consider that the General Assem-
bly, in employing this form of words, has requested it to reply to the
question put on the basis solely of these facts, and to close its eyes to
subsequent events of possible relevance to, or capable of throwing light
on, that question. The Court will therefore set out here the developments
in the affair subsequent to the adoption of resolution 42/229 B.

24. On 11 March 1988 the Acting Permanent Representative of the
United States to the United Nations wrote to the Secretary-General, refer-
ring to General Assembly resolutions 42/229 A and 42/229 B and stating
as follows:

“I wish to inform you that the Attorney General of the United
States has determined that he is required by the Anti-Terrorism Act
of 1987 to close the office of the Palestine Liberation Organization
Observer Mission to the United Nations in New York, irrespective of
any obligations the United States may have under the Agreement be-
tween the United Nations and the United States regarding the Head-
quarters of the United Nations. If the PLO does not comply with the
Act, the Attorney General will initiate legal action to close the PLO
Observer Mission on or about March 21, 1988, the effective date of
the Act. This course of action will allow the orderly enforcement of
the Act. The United States will not take other actions to close the

14
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 23

Observer Mission pending a decision in such litigation. Under the
circumstances, the United States believes that submission of this
matter to arbitration would not serve a useful purpose.”

This letter was delivered by hand to the Secretary-General by the Acting
Permanent Representative of the United States on 11 March 1988. On
receiving the letter, the Secretary-General protested to the Acting Per-
manent Representative and stated that the decision taken by the United
States Government as outlined in the letter was a clear violation of the
Headquarters Agreement between the United Nations and the United
States.

25. On the same day, the United States Attorney General wrote to the
Permanent Observer of the PLO to the United Nations to the following
effect:

“Tam writing to notify you that on March 21, 1988, the provisions
of the ‘Anti-Terrorism Act of 1987’ (Title X of the Foreign Relations
Authorization Act of 1988-89; Pub. L. No. 100-204, enacted by the
Congress of the United States and approved Dec. 22, 1987 (the ‘Act’))
will become effective. The Act prohibits, among other things, the
Palestine Liberation Organization (‘PLO’) from establishing or
maintaining an office within the jurisdiction of the United States.
Accordingly, as of March 21, 1988, maintaining the PLO Observer
Mission to the United Nations in the United States will be unlawful.

The legislation charges the Attorney General with the responsibil-
ity of enforcing the Act. To that end, please be advised that, should
you fail to comply with the requirements of the Act, the Department
of Justice will forthwith take action in United States federal court to
ensure your compliance.”

26. Finally, on the same day, in the course of a press briefing held by
the United States Department of Justice, the Assistant Attorney General
in charge of the Office of Legal Counsel said as follows, in reply to a ques-
tion:

“We have determined that we would not participate in any forum,
either the arbitral tribunal that might be constituted under Article
XXI, as I understand it, of the UN Headquarters Agreement, or the
International Court of Justice. As I said earlier, the statute [i.e., the
Anti-Terrorism Act of 1987] has superseded the requirements of the
UN Headquarters Agreement to the extent that those requirements
are inconsistent with the statute, and therefore, participation in any
of these tribunals that you cite would be to no useful end. The sta-
tute’s mandate governs, and we have no choice but to enforce it.”

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HEADQUARTERS AGREEMENT (ADVISORY OPINION) 24

27. On 14 March 1988 the Permanent Observer of the PLO replied to
the Attorney General’s letter drawing attention to the fact that the PLO
Permanent Observer Mission had been maintained since 1974, and con-
tinuing:

“The PLO has maintained this arrangement in pursuance of the
relevant resolutions of the General Assembly of the United Nations
(3237 (XXIX), 42/210 and 42/229. . .). The PLO Observer Mission is
in no sense accredited to the United States. The United States Gov-
ernment has made clear that PLO Observer Mission personnel are
present in the United States solely in their capacity as ‘invitees’ of the
United Nations within the meaning of the Headquarters Agreement.
The General Assembly was guided by the relevant principles of the
United Nations Charter (Chapter XVI . . .). I should like, at this
point, to remind you that the Government of the United States
has agreed to the Charter of the United Nations and to the establish-
ment of an international organization to be known as the ‘United

CEE

Nations’.

He concluded that it was clear that “the US Government is obligated to
respect the provisions of the Headquarters Agreement and the principles
of the Charter”. On 21 March 1988, the United States Attorney General
replied to the PLO Permanent Observer as follows:

“J am aware of your position that requiring closure of the Palestine
Liberation Organization (‘PLO’) Observer Mission violates our obli-
gations under the United Nations (‘UN’) Headquarters Agreement
and, thus, international law. However, among a number of grounds
in support of our action, the United States Supreme Court has held
for more than a century that Congress has the authority to override
treaties and, thus, international law for the purpose of domestic law.
Here Congress has chosen, irrespective of international law, to ban
the presence of all PLO offices in this country, including the presence
of the PLO Observer Mission to the United Nations. In discharging
my obligation to enforce the law, the only responsible course avail-
able to me is to respect and follow that decision.

Moreover, you should note that the Anti-Terrorism Act contains
provisions in addition to the prohibition on the establishment or
maintenance of an office by the PLO within the jurisdiction of the
United States. In particular, I direct your attention to subsections
1003 (a) and (b), which prohibit anyone from receiving or expending
any monies from the PLO or its agents to further the interests of the
PLO or its agents. All provisions of the Act become applicable on
21 March 1988.”

28. On 15 March 1988 the Secretary-General wrote to the Acting
16
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 25

Permanent Representative of the United States in reply to his letter of
11 March 1988 (paragraph 24 above), and stated as follows:

“As I told you at our meeting on 11 March 1988 on receiving
this letter, I did so under protest because in the view of the United
Nations the decision taken by the United States Government as out-
lined in the letter is a clear violation of the Headquarters Agreement
between the United Nations and the United States. In particular, I
cannot accept the statement contained in the letter that the United
States may act irrespective of its obligations under the Headquarters
Agreement, and I would ask you to reconsider the serious implica-
tions of this statement given the responsibilities of the United States
as the host country.

I must also take issue with the conclusion reached in your letter
that the United States believes that submission of this matter to arbi-
tration would not serve a useful purpose. The United Nations conti-
nues to believe that the machinery provided for in the Headquarters
Agreement is the proper framework for the settlement of this dispute
and I cannot agree that arbitration would serve no useful purpose.
On the contrary, in the present case, it would serve the very purpose
for which the provisions of section 21 were included in the Agree-
ment, namely the settlement of a dispute arising from the interpreta-
tion or application of the Agreement.”

29. According to the written statement of 25 March 1988 presented to
the Court by the United States,

“The PLO Mission did not comply with the March 11 order. On
March 22, the United States Department of Justice therefore filed a
lawsuit in the United States District Court for the Southern District
of New York to compel compliance. That litigation will afford an
opportunity for the PLO and other interested parties to raise legal
challenges to enforcement of the Act against the PLO Mission. The
United States will take no action to close the Mission pending a deci-
sion in that litigation. Since the matter is still pending in our courts,
we do not believe arbitration would be appropriate or timely.”

The Court has been supplied, as part of the dossier of documents fur-
nished by the Secretary-General, with a copy of the summons addressed
to the PLO, the PLO Observer Mission, its members and staff; it is dated
22 March 1988 and requires an answer within 20 days after service.

30. On 23 March 1988, the General Assembly, at its reconvened forty-
second session, adopted resolution 42/230 by 148 votes to 2, by which it
reaffirmed (inter alia) that

17
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 26

“a dispute exists between the United Nations and the United States
of America, the host country, concerning the interpretation or appli-
cation of the Headquarters Agreement, and that the dispute settle-
ment procedure provided for under section 21 of the Agreement,
which constitutes the only legal remedy to solve the dispute, should
be set in operation”

and requested “the host country to name its arbitrator to the arbitral
tribunal”.

31. The representative of the United States, who voted against the reso-
lution, said (inter alia) the following in explanation of vote. Referring to
the proceedings instituted in the United States courts, he said:

“The United States will take no further steps to close the PLO
office until the [United States] Court has reached a decision on the
Attorney General’s position that the Act requires closure ... Until
the United States courts have determined whether that law requires
closure of the PLO Observer Mission the United States Government
believes that it would be premature to consider the appropriateness
of arbitration.” (A/42/PV.109, pp. 13-15.)

He also urged:

“Let us not be diverted from the important and historic goal of
peace in the Middle East by the current dispute over the status of the
PLO Observer Mission.” (Ibid., p. 16.)

32. Atthe hearing, the United Nations Legal Counsel, representing the
Secretary-General, stated to the Court that he had informed the United
States District Court Judge seised of the proceedings referred to in para-
graph 29 above that it was the wish of the United Nations to submit an
amicus curiae brief in those proceedings.

33. In the present case, the Court is not called upon to decide whether
the measures adopted by the United States in regard to the Observer
Mission of the PLO to the United Nations do or do not run counter to the
Headquarters Agreement. The question put to the Court is not about
either the alleged violations of the provisions of the Headquarters Agree-
ment applicable to that Mission or the interpretation of those provisions.
The request for an opinion is here directed solely to the determination
whether under section 21 of the Headquarters Agreement the United Na-
tions was entitled to call for arbitration, and the United States was obliged
to enter into this procedure. Hence the request for an opinion concerns
solely the applicability to the alleged dispute of the arbitration procedure
provided for by the Headquarters Agreement. It is a legal question within

18
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 27

the meaning of Article 65, paragraph 1, of the Statute. There is in this case
no reason why the Court should not answer that question.

*

34. In order to answer the question put to it, the Court has to determine
whether there exists a dispute between the United Nations and the United
States, and if so whether or not that dispute is one “concerning the inter-
pretation or application of” the Headquarters Agreement within the
meaning of section 21 thereof. If it finds that there is such a dispute it must
also, pursuant to that section, satisfy itself that it is one “not settled by
negotiation or other agreed mode of settlement”.

35. As the Court observed in the case concerning Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, “whether there exists
an international dispute is a matter for objective determination” (.CJ.
Reports 1950, p. 74). In this respect the Permanent Court of International
Justice, in the case concerning Mavrommatis Palestine Concessions, had
defined a dispute as “a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons” (P.C.L.J., Series A, No. 2,
p. 11). This definition has since been applied and clarified on a number of
occasions. In the Advisory Opinion of 30 March 1950 the Court, after ex-
amining the diplomatic exchanges between the States concerned, noted
that “the two sides hold clearly opposite views concerning the question of
the performance or non-performance of certain treaty obligations” and
concluded that “international disputes have arisen” (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I. CJ.
Reports 1950, p. 74). Furthermore, in its Judgment of 21 December 1962
in the South West Africa cases, the Court made it clear that in order to
prove the existence of a dispute

“it is not sufficient for one party to a contentious case to assert that a
dispute exists with the other party. A mere assertion is not sufficient
to prove the existence of a dispute any more than a mere denial of the
existence of the dispute proves its non-existence. Nor is it adequate to
show that the interests of the two parties to such a case are in conflict.
It must be shown that the claim of one party is positively opposed by
the other.” (LCJ. Reports 1962, p. 328.)

The Court found that the opposing attitudes of the parties clearly estab-
lished the existence of a dispute (ibid. ;see also Northern Cameroons, I.C.J.
Reports 1963, p. 27).

36. Inthe present case, the Secretary-General informed the Court that,
in his opinion, a dispute within the meaning of section 21 of the Head-

19
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 28

quarters Agreement existed between the United Nations and the United
States from the moment the Anti-Terrorism Act was signed into law by the
President of the United States and in the absence of adequate assurances
to the Organization that the Act would not be applied to the PLO Observer
Mission to the United Nations. By his letter of 14 January 1988 to the
Permanent Representative of the United States, the Secretary-General
formally contested the consistency of the Act with the Headquarters
Agreement (paragraph 16 above). The Secretary-General confirmed and
clarified that point of view in a letter of 15 March 1988 (paragraph 28
above) to the Acting Permanent Representative of the United States in
which he told him that the determination made by the Attorney General of
the United States on 11 March 1988 was a “clear violation of the Head-
quarters Agreement”. In that same letter he once more asked that the
matter be submitted to arbitration.

37. The United States has never expressly contradicted the view ex-
pounded by the Secretary-General and endorsed by the General Assem-
bly regarding the sense of the Headquarters Agreement. Certain United
States authorities have even expressed the same view, but the United
States has nevertheless taken measures against the PLO Mission to the
United Nations. It has indicated that those measures were being taken
“irrespective of any obligations the United States may have under the
[Headquarters] Agreement” (paragraph 24 above).

38. Inthe view of the Court, where one party to a treaty protests against
the behaviour or a decision of another party, and claims that such behav-
iour or decision constitutes a breach of the treaty, the mere fact that the
party accused does not advance any argument to justify its conduct under
international law does not prevent the opposing attitudes of the parties
from giving rise to a dispute concerning the interpretation or application
of the treaty. In the case concerning United States Diplomatic and Consular
Staff in Tehran, the jurisdiction of the Court was asserted principally on
the basis of the Optional Protocols concerning the Compulsory Settle-
ment of Disputes accompanying the Vienna Conventions of 1961 on
Diplomatic Relations and of 1963 on Consular Relations, which defined
the disputes to which they applied as “Disputes arising out of the interpre-
tation or application of” the relevant Convention. Iran, which did not
appear in the proceedings before the Court, had acted in such a way as, in
the view of the United States, to commit breaches of the Conventions, but,
so far as the Court was informed, Iran had at no time claimed to justify
its actions by advancing an alternative interpretation of the Conventions,
on the basis of which such actions would not constitute such a breach.
The Court saw no need to enquire into the attitude of Iran in order to estab-
lish the existence of a “dispute”; in order to determine whether it had juris-
diction, it stated:

“The United States’ claims here in question concern alleged viola-
tions by Iran of its obligations under several articles of the Vienna

20
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 29

Conventions of 1961 and 1963 with respect to the privileges and
immunities of the personnel, the inviolability of the premises and
archives, and the provision of facilities for the performance of the
functions of the United States Embassy and Consulates in Iran
... By their very nature all these claims concern the interpretation or
application of one or other of the two Vienna Conventions.”
(LCJ. Reports 1980, pp. 24-25, para. 46.)

39. In the present case, the United States in its public statements has
not referred to the matter as a “dispute” (save for a passing reference on
23 March 1988 to “the current dispute over the status of the PLO Obser-
ver Mission” (paragraph 31 above)), and it has expressed the view that ar-
bitration would be “premature”. According to the report of the Secretary-
General to the General Assembly (A/42/915, para. 6), the position taken
by the United States during the consultations in January 1988 was that it
“had not yet concluded that a dispute existed between the United Nations
and the United States” at that time “because the legislation in question
had not yet been implemented”. Finally, the Government of the United
States, in its written statement of 25 March 1988, told the Court that:

“The United States will take no action to close the Mission pend-
ing a decision in that litigation. Since the matter is still pending in our
courts, we do not believe arbitration would be appropriate or
timely.”

40. The Court could not allow considerations as to what might be “ap-
propriate” to prevail over the obligations which derive from section 21 of
the Headquarters Agreement, as “the Court, being a Court of justice, can-
not disregard rights recognized by it, and base its decision on considera-
tions of pure expediency” (Free Zones of Upper Savoy and the District of
Gex, Order of 6 December 1930, P.C.L.J., Series A, No. 24, p. 15).

41. The Court must further point out that the alleged dispute relates
solely to what the United Nations considers to be its rights under the
Headquarters Agreement. The purpose of the arbitration procedure en-
visaged by that Agreement is precisely the settlement of such disputes
as may arise between the Organization and the host country without any
prior recourse to municipal courts, and it would be against both the letter
and the spirit of the Agreement for the implementation of that procedure
to be subjected to such prior recourse. It is evident that a provision of the
nature of section 21 of the Headquarters Agreement cannot require the
exhaustion of local remedies as a condition of its implementation.

42. The United States in its written statement might be implying that
neither the signing into law of the Anti-Terrorism Act, nor its entry into
force, nor the Attorney General’s decision to apply it, nor his resort to court
proceedings to close the PLO Mission to the United Nations, would
have been sufficient to bring about a dispute between the United Nations

21
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 30

and the United States, since the case was still pending before an Ameri-
can court and, until the decision of that court, the United States, accord-
ing to the Acting Permanent Representative’s letter of 11 March 1988,
“will not take other actions to close” the Mission. The Court cannot accept
such an argument. While the existence of a dispute does presuppose a
claim arising out of the behaviour of or a decision by one of the parties,
it in no way requires that any contested decision must already have been
carried into effect. What is more, a dispute may arise even if the party in
question gives an assurance that no measure of execution will be taken
until ordered by decision of the domestic courts.

43. The Anti-Terrorism Act was signed into law on 22 December 1987.
It was automatically to take effect 90 days later. Although the Act extends
to every PLO office situated within the jurisdiction of the United States
and contains no express reference to the office of the PLO Mission to the
United Nations in New York, its chief, if not its sole, objective was the
closure of that office. On 11 March 1988, the United States Attorney Gen-
eral considered that he was under an obligation to effect such a closure; he
notified the Mission of this, and applied to the United States courts for an
injunction prohibiting those concerned “from continuing violations of”
the Act. As noted above, the Secretary-General, acting both on his own
behalf and on instructions from the General Assembly, has consistently
challenged the decisions contemplated and then taken by the United
States Congress and the Administration. Under those circumstances, the
Court is obliged to find that the opposing attitudes of the United Nations
and the United States show the existence of a dispute between the two
parties to the Headquarters Agreement.

- 44. For the purposes of the present advisory opinion there is no need to
seek to determine the date at which the dispute came into existence, once
the Court has reached the conclusion that there is such a dispute at the
date on which its opinion is given.

*  _*

45. The Court has next to consider whether the dispute is one which
concerns the interpretation or application of the Headquarters Agree-
ment. It is not however the task of the Court to say whether the enactment,
or the enforcement, of the United States Anti-Terrorism Act would or
would not constitute a breach of the provisions of the Headquarters
Agreement; that question is reserved for the arbitral tribunal which the
Secretary-General seeks to have established under section 21 of the
Agreement.

46. In the present case, the Secretary-General and the General Assem-
bly of the United Nations have constantly pointed out that the PLO was
invited “to participate in the sessions and the work of the General Assem-

22
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 31

bly in the capacity of Observer” (resolution 3237 (XXIX)). In their view,
therefore, the PLO Observer Mission to the United Nations was, as such,
covered by the provisions of sections 11, 12 and 13 of the Headquarters
Agreement; it should therefore “be enabled to establish and maintain
premises and adequate functional facilities” (General Assembly resolution
42/229 A, para. 2). The Secretary-General and the General Assembly have
accordingly concluded that the various measures envisaged and then
taken by the United States Congress and Administration would be incom-
patible with the Agreement if they were to be applied to that Mission, and
that the adoption of those measures gave rise to a dispute between the
United Nations Organization and the United States with regard to the
interpretation and application of the Headquarters Agreement.

47. Asto the position of the United States, the Court notes that, as early
as 29 January 1987, the United States Secretary of State wrote to Senator
Dole that:

“The PLO Observer Mission in New York was established as
a consequence of General Assembly resolution 3237 (XXIX) of
November 22, 1974, which invited the PLO to participate as an obser-
ver in the sessions and work at the General Assembly.”

He added that:

“. ,. PLO Observer Mission personnel are present in the United
States solely in their capacity as ‘invitees’ of the United Nations
within the meaning of the Headquarters Agreement... . we therefore
are under an obligation to permit PLO Observer Mission personnel
to enter and remain in the United States to carry out their official
functions at UN headquarters . ..” (Congressional Record, Vol. 133,
No. 78, p. 86449).

After the adoption of the Anti-Terrorism Act, the Acting Permanent Rep-
resentative of the United States to the United Nations indicated to the
Secretary-General that the provisions of that Act “concerning the PLO
Observer Mission . . ., ifimplemented, would be contrary to. . . [the] inter-
national legal obligations” of the host country under the Headquarters
Agreement (paragraph 15 above). The United States then envisaged inter-
preting that Act in a manner compatible with its obligations (paragraph 17
above). Subsequently, however, the Acting Permanent Representative of
the United States, in a letter dated 11 March 1988 (paragraph 24 above),
informed the United Nations Secretary-General that the Attorney Gen-
eral of the United States had determined that the Anti-Terrorism Act
required him to close the PLO Observer Mission, “irrespective of any ob-
ligations the United States may have under” the Headquarters Agreement.
On the same day, an Assistant Attorney General declared that the Act had
“superseded the requirements of the United Nations Headquarters
Agreement to the extent that those requirements are inconsistent with the
statute ...” (paragraph 26 above). The Secretary-General, in his reply of

23
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 32

15 March 1988 to the letter from the United States Acting Permanent
Representative, disputed the view there expressed, on the basis of the prin-
ciple that international law prevails over domestic law.

48. Accordingly, in a first stage, the discussions related to the interpre-
tation of the Headquarters Agreement and, in that context, the United
States did not dispute that certain provisions of that Agreement applied
to the PLO Mission to the United Nations in New York. However, in a
second stage, it gave precedence to the Anti-Terrorism Act over the Head-
quarters Agreement, and this was challenged by the Secretary-General.

49. To conclude, the United States has taken a number of measures
against the PLO Observer Mission to the United Nations in New York.
The Secretary-General regarded these as contrary to the Headquarters
Agreement. Without expressly disputing that point, the United States
stated that the measures in question were taken “irrespective of any obli-
gations the United States may have under the Agreement”. Such conduct
cannot be reconciled with the position of the Secretary-General. There
thus exists a dispute between the United Nations and the United States
concerning the application of the Headquarters Agreement, falling within
the terms of section 21 thereof.

50. The question might of course be raised whether in United States
domestic law the decisions taken on 11 and 21 March 1988 by the Attorney
General brought about the application of the Anti-Terrorism Act, or
whether the Act can only be regarded as having received effective applica-
tion when or if, on completion of the current judicial proceedings, the
PLO Mission is in fact closed. This is however not decisive as regards
section 21 of the Headquarters Agreement, which refers to any dispute
“concerning the interpretation or application” of the Agreement, and not
concerning the application of the measures taken in the municipal law of
the United States. The Court therefore sees no reason not to find that a
dispute exists between the United Nations and the United States concern-
ing the “interpretation or application” of the Headquarters Agreement.

* *

51. The Court now turns to the question of whether the dispute
between the United Nations and the United States is one “not settled by
negotiation or other agreed mode of settlement”, in the terms of section 21,
paragraph (a), of the Headquarters Agreement.

52. In his written statement, the Secretary-General interprets this pro-
vision as requiring a two-stage process.

“In the first stage the parties attempt to settle their difference
through negotiation or some other agreed mode of settlement . . . If
they are unable to reach a settlement through these means, the second
stage of the process, compulsory arbitration, becomes applicable.”
(Para. 17.)

24
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 33

The Secretary-General accordingly concludes that

“In order to find that the United States is under an obligation to
enter into arbitration, it is necessary to show that the United Nations
has made a good faith attempt to resolve the dispute through negotia-
tion or some other agreed mode of settlement and that such negotia-
tions have not resolved the dispute.” (Para. 42.)

53. In his letter to the United States Permanent Representative dated
14 January 1988, the Secretary-General not only formally invoked the dis-
pute settlement procedure set out in section 21 of the Headquarters Agree-
ment, but also noted that “According to section 21 (a), an attempt has to be
made at first to solve the dispute through negotiations” and proposed that
the negotiations phase of the procedure commence on 20 January 1988.
According to the Secretary-General’s report to the General Assembly, a
series of consultations had already begun on 7 January 1988 (A/42/915,
para. 6) and continued until 10 February 1988 (ibid., para. 10). Technical
discussions, on an informal basis, on procedural matters relating to the:
arbitration contemplated by the Secretary-General, were held between
28 January 1988 and 2 February 1988 (ibid., paras. 8-9). On 2 March 1988,
the Acting Permanent Representative of the United States stated in the
General Assembly that

“we have been in regular and frequent contact with the United
Nations Secretariat over the past several months concerning an
appropriate resolution of this matter” (A/42/PV.104, p. 59).

54. The Secretary-General recognizes that “The United States did not
consider these contacts and consultations to be formally within the frame-
work of section 21 (a) of the Headquarters Agreement” (written statement,
para. 44), and in a letter to the United States Permanent Representative
dated 2 February 1988, the Secretary-General noted that the United States
was taking the position that, pending its evaluation of the situation which
would arise from application of the Anti-Terrorism Act, “it cannot enter
into the dispute settlement procedure outlined in section 21 of the Head-
quarters Agreement”.

55. The Court considers that, taking into account the United States atti-
tude, the Secretary-General has in the circumstances exhausted such pos-
sibilities of negotiation as were open to him. The Court would recall in this
connection the dictum of the Permanent Court of International Justice in
the Mavrommatis Palestine Concessions case that

“the question of the importance and chances of success of diplomatic
negotiations is essentially a relative one. Negotiations do not of
necessity always presuppose a more or less lengthy series of notes
and despatches; it may suffice that a discussion should have been
commenced, and this discussion may have been very short; this will
be the case if a deadlock is reached, or if finally a point is reached

25
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 34

at which one of the Parties definitely declares himself unable, or
refuses, to give way, and there can therefore be no doubt that the dis-
pute cannot be settled by diplomatic negotiation” (P.C.I.J., Series A,
No. 2, p. 13).

When in the case concerning United States Diplomatic and Consular Staff
in Tehran the attempts of the United States to negotiate with Iran “had
reached a deadlock, owing to the refusal of the Iranian Government to
enter into any discussion of the matter”, the Court concluded that “In con-
sequence, there existed at that date not only a dispute but, beyond any
doubt, a ‘dispute .. . not satisfactorily adjusted by diplomacy’ within the
meaning of” the relevant jurisdictional text (LC.J. Reports 1980, p. 27,
para. 51). In the present case, the Court regards it as similarly beyond any
doubt that the dispute between the United Nations and the United States
is one “not settled by negotiation” within the meaning of section 21, para-
graph (a), of the Headquarters Agreement.

56. Nor was any “other agreed mode of settlement” of their dispute
contemplated by the United Nations and the United States. In this con-
nection the Court should observe that current proceedings brought by the
United States Attorney General before the United States courts cannot be
an “agreed mode of settlement” within the meaning of section 21 of the
Headquarters Agreement. The purpose of these proceedings is to enforce
the Anti-Terrorism Act of 1987; it is not directed to settling the dispute,
concerning the application of the Headquarters Agreement, which has
come into existence between the United Nations and the United States.
Furthermore, the United Nations has never agreed to settlement of the
dispute in the American courts; it has taken care to make it clear that it
wishes to be admitted only as amicus curiae before the District Court for
the Southern District of New York.

+

57. The Court must therefore conclude that the United States is bound
to respect the obligation to have recourse to arbitration under section 21 of
the Headquarters Agreement. The fact remains however that, as the Court
has already observed, the United States has declared (letter from the
Permanent Representative, 11 March 1988) that its measures against the
PLO Observer Mission were taken “irrespective of any obligations the
United States may have under the [Headquarters] Agreement”. If it were
necessary to interpret that statement as intended to refer not only to the
substantive obligations laid down in, for example, sections 11, 12 and 13,
but also to the obligation to arbitrate provided for in section 21, this
conclusion would remain intact. It would be sufficient to recall the funda-
mental principle of international law that international law prevails over
domestic law. This principle was endorsed by judicial decision as long
ago as the arbitral award of 14 September 1872 in the Alabama case
between Great Britain and the United States, and has frequently been
recalled since, for example in the case concerning the Greco-Bulgarian

26
HEADQUARTERS AGREEMENT (ADVISORY OPINION) 35

“Communities” in which the Permanent Court of International Justice
laid it down that

“it is a generally accepted principle of international law that in the
relations between Powers who are contracting Parties to a treaty, the
provisions of municipal law cannot prevail over those of the treaty”
(P.C_LJ., Series B, No. 17, p. 32).

+ Ÿ x

58. For these reasons,
THE COURT,
Unanimously,

Is 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 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.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-sixth day of April, one thousand
nine hundred and eighty-eight, in two copies, one of which will be placed
in the archives of the Court and the other transmitted to the Secretary-
General of the United Nations.

(Signed) José Maria Rupa,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge ELIAS appends a declaration to the Advisory Opinion of the
Court.

Judges ODA, SCHWEBEL and SHAHABUDDEEN append separate opinions
to the Advisory Opinion of the Court.

(Initialled) J.M.R.
(Initialled) E.V.O.

27
36

DECLARATION DE M. ELIAS
[Traduction]

Je souscris à l’avis consultatif, mais étant bien entendu que je considère
qu’aux fins de la question juridique soumise à la Cour, au sens de l’ar-
ticle 65 du Statut de la Cour et de l’article 96 de la Charte, un différend est
né entre Organisation des Nations Unies et les Etats-Unis lorsque le
Congrès des Etats-Unis a adopté la loi contre le terrorisme, signée le
22 décembre 1987. Je ne pense pas que ce différend ne se cristallisera
qu’au moment où la loi du Congrès pourrait être confirmée par le tribunal
de district de New York — comme l’ont soutenu les Etats-Unis. Je ne
pense pas non plus que l'efficacité à cet égard de la loi du Congrès signée
par le Président dépend de la question de savoir si les assurances que le
Secrétaire général de l'Organisation des Nations Unies a demandées au
gouvernement lui ont été données ou non. Le but recherché par le Secré-
taire général ne peut être atteint que si le Congrès adopte un nouveau texte
législatif modifiant la loi contre le terrorisme. La loi du 22 décembre 1987
est en elle-même suffisante pour faire naître un différend puisque «la
demande de l’Assemblée générale a été présentée en raison de la situation
créée par la promulgation de la loi de 1987 contre le terrorisme adoptée
par le Congrès des Etats-Unis » (C.I.J., communiqué de presse n° 88/10,
14 avril 1988).

(Signé) T. O. ELias.

28


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA SOCIÉTÉ
« ÉLECTRICITÉ DE BEYROUTH »

(FRANCE c. LIBAN)

ORDONNANCE DU 8 AVRIL 1954

1954

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

“ÉLECTRICITÉ DE BEYROUTH”
COMPANY CASE

(FRANCE v. LEBANON)

ORDER OF APRIL 8th, 1954
La présente ordonnance doit étre citée comme suit :

« Affaire de la Société « Électricité de Beyrouth »,
Ordonnance du 8 avril 1954: C.I. J. Recueil 1954, D. 13.»

This Order should be cited as follows :

“Électricité de Beyrouth Company case,
Order of April 8th, 1954: I.C.J. Reports 1954, p. 13.”

N° de vente: 117
Sales number

13

INTERNATIONAL COURT OF JUSTICE

1954
April 8th

YEAR 1 9 54 General List :

No. 20

April 8th, 1954

“ÉLECTRICITÉ DE BEYROUTH”
COMPANY CASE

(FRANCE v. LEBANON)

ORDER
The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Articles 37 and 38 of the Rules of Court ;

Having regard to the Order made by the Court on October 2oth,
1953, fixing the time-limits for the presentation of the documents
of the written procedure in the ‘‘Electricité de Beyrouth” Com-

pany case,

Whereas, by letter of March 2oth, 1954, filed in the Registry
on April 1st, 1954, the Agent of the Government of Lebanon
requested that the time-limit fixed for April 28th, 1954, for the
presentation of the Counter-Memorial of the Government of

Lebanon be extended for three months,

Whereas the Agent of the Government of the French Repub-
lic, to whom the aforesaid request was communicated, has, by
letter of April 6th, 1954, indicated that he did not object to this

request ;

Fixes July 28th, 1954, as the time-limit for the filing of the
Counter-Memorial of the Government of Lebanon ;

Reserves the rest of the procedure for further decision.
‘ÉLECTRICITÉ DE BEYROUTH” (ORDER OF 8 IV 54) 14

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this eighth day of April, one
thousand nine hundred and fifty-four, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Government of the French Republic and the
Government of the Republic of Lebanon, respectively.

(Signed) ARNOLD D. McNair,
President.

(Signed) J. LOPEZ OLIVAN,
Registrar.