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077- Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters

On March 2nd, 1988, the Secretary-General of the United Nations transmitted to the International Court of Justice (ICJ) resolution 42/229B in which the General Assembly requested an advisory opinion on whether “the United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, was under an obligation to enter into arbitration in accordance with Section 21 of the Agreement”.

In its Order of March 9th, 1988, the ICJ considered it desirable to answer promptly to the question.

Order of 09-03-1988.pdf

The Court delivered its advisory opinion on April 26th, 1988. It began by restating the text of section 21 of the Agreement of June 26th 1947, which provides in part that: ” Any dispute between the United Nations and the United States with respect to the interpretation or application of this Agreement or any Additional Agreement shall, if not settled by negotiations or any other means of settlement agreed to by the parties, be submitted for final determination to a tribunal composed of three arbitrators […]”. Therefore, what the ICJ had to establish was the existence or non-existence of a dispute between the United Nations and the United States falling within the scope of section 21 (a) of the Agreement.

In the present case, the United States had just passed a law that prohibited “to establish or maintain an office, headquarters, premises or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization”(PLO)”. The United Nations, however, had a permanent mission of the PLO, in accordance with the headquarters agreement. Subsequently, the UN Secretary-General invoked the dispute settlement procedure enshrined in Section 21 of the Agreement, opening negotiations and then, considering the attitude of the United States, chose an arbitrator. The USA subsequently informed the UN and the ICJ that resorting to arbitration at this time was neither “appropriate [n]or timely”. 

In its Opinion, the Court stressed that it did not have to take into account questions of expediency and that the attitude of both parties did indeed underline the existence of a dispute concerning the application of the Headquarters Agreement. It then found that, in view of the behaviour of the United States, the Secretary-General had exhausted in the present case the negotiating possibilities available to him. As the United Nations and the United States had not considered settling their dispute by an “other agreed mode of settlement” within the meaning of section 21 of the agreement, the ICJ had therefore to conclude that the United States were bound by the obligation to have recourse to arbitration under section 21.

Advisory Opinion of 26-04-1988.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.