Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Request for Advisory Opinion); Order

INTERNATIONAL COURT OF JUSTICE

9 March 1988
APPLICABILITY OF THE OBLIGATION TO ARBITRATE UNDER SECTION 21 OF THE UNITED NATIONS HEADQUARTERS AGREEMENT OF 26 JUNE 1947 (REQUEST FOR ADVISORY OPINION)

ORDER

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.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41, 48, 65, 66 and 68 of the Statute of the Court and to Articles 73, 103, 104 and 105 of the Rules of Court,

Makes the following order:

Whereas on 2 March 1988 the General Assembly of the United Nations adopted resolution 42/229 B whereby it requested the International Court of Justice to give an advisory opinion on the following question:

"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 America regarding the Headquarters of the United Nations [resolution 169 (II)], under an obligation to enter into arbitration in accordance with section 21 of the Agreement?"

Whereas on the same day the Legal Counsel of the United Nations transmitted to the Court by facsimile the English and French texts of the said resolution, received in the Registry on 3 March 1988;

Whereas the Secretary-General transmitted to the Court the request for advisory opinion and certified copies of the English and French texts of the said resolution by a letter dated 2 March 1988, received in the Registry by facsimile on 4 March 1988 and by post on 7 March 1988, and indicated in that letter that, in accordance with Article 65 of the Statute, all relevant documents likely to throw light upon the question would be transmitted to the Court as soon as possible;

Whereas from the reports of the Secretary-General referred to in the said resolution (the texts of which have been supplied to the Court) it appears that the dispute settlement procedure set out in section 21 of the Headquarters Agreement mentioned in the resolution has been formally invoked by the Secretary-General of the United Nations in respect of an alleged dispute concerning the United States Anti-Terrorism Act of 1987 (Title X of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989), and its application to the Permanent Observer Mission of the Palestine Liberation Organization to the United Nations;

Whereas it appears further from the said reports that the legislation in question was signed into law by the President of the United States on 22 December 1987, and will take effect, according to its terms, ninety days after is enactment;

Whereas the preambular paragraphs of resolution 42/229B indicated (inter alia) that "the constraints of time ... require the immediate implementation of the dispute settlement procedure in accordance with section 21 of the Agreement", that account should be taken of " the provisions of the Statute of the International Court of Justice, in particular Articles 41 and 68 thereof", and the decision to request an advisory opinion was made "taking into account the time constraint".

Whereas resolution 42/229B, while it contains in its preamble a reference to Articles 41 and 68 of the Statute, does not constitute a formal request for the indication of provisional measures;

Whereas it is not appropriate, in the circumstances of the case, for the Court to consider whether or not provisional measures may be indicated in proceedings on a request for advisory opinion;

Whereas the Court takes note that the General Assembly, at the meeting at which it adopted resolution 42/229 B requesting an advisory opinion of the court also adopted resolution 42/229 A, by which it

"Calls upon the host country to abide by its treaty obligation under the Agreement and to provide assurance that no action will be taken that would infringe on the current arrangements for the official functions of the Permanent Observer Mission of the Palestine Liberation Organization to the United Nations in New York";

Whereas in the light of the indications given by the General Assembly in the resolution the Court finds that an early answer to the request would be desirable, as contemplated by Article 103 of the Rules of Court, and that accordingly all necessary steps should be taken to accelerate the procedure;

THE COURT,

Unanimously,

1. Invites the Secretary-General of the United Nations to supply the documents contemplated by Article 65, paragraph 2, of the Statute at the earliest date possible;

2. Decides that the United Nations and the United States of America are, pursuant to Article 66, paragraph 2, of the Statute, considered likely to be able to furnish information on the question submitted to the Court for advisory opinion and fixes 25 March 1988 as the time-limit within which the Court will be prepared to receive written statements from them on the question;

3. Decides further that any other State party to the Statute of the Court which desires to do so may submit to the Court a written statement on the question not later than 25 March 1988;

4. Decides to hold hearings, opening on 11 April 1988, at which oral comments on written statements may be submitted to the Court by the United Nations, the United States, and such other States as have presented written statements; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this ninth day of March, one thousand nine hundred and eighty-eight.

(Signed) José Maria RUDA, President.

(Signed) Eduardo VALENCIA-OSPINA,

Registrar.

Judge SCHWEBEL appends a separate opinion to the Order of the Court.

(Initialled) J. M. R.

(Initialled) E. V. O.

SEPARATE OPINION OF JUDGE SCHWEBEL

While I have voted in favour of the Court's Order, I voted against one paragraph of it and feel bound to state may reasons for objecting to it.

After observing that it would not be appropriate, in the circumstances of the case, for the Court to consider whether or not provisional measures may be indicated in proceedings on a request for an advisory opinion, the Order continues:

"Whereas the Court takes note that the General Assembly, at the meeting at which it adopted resolution 42/229 B requesting an advisory opinion of the Court also adopted resolution 42/229 A, by which it

'Calls upon the host country to abide by its treaty obligations under the Agreement and to provide assurance that no action will be taken that would infringe on the current arrangements for the official functions of the Permanent Observer Mission of the Palestine Liberation Organization to the United Nations in New York.'"

In my view, the inclusion of the foregoing paragraph in the Order is objectionable for the following reasons.

The Statute of the Court provides that a question upon which the advisory opinion of the Court is asked shall be laid before the Court "by means of a written request containing an exact statement of the question upon which an opinion is required…" (Art. 65, para. 2). The jurisdiction of the Court in an advisory proceeding is limited by the bounds of that question.

"A particularly significant application of this principle is seen in those cases where the advisory opinion is requested on a preliminary question of procedure. In such cases, the Court has been careful in its opinion not to prejudice the problem of the merits." (Shabtai Rosenne, The Law and Practice of the International court, Vol. 2 (1965), p. 699, citing Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne case, P. C. I. J., Series B, No. 12 at p. 18, and Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I. C. J. Reports 1950, p. 70)

In this case, the exact question put to the Court is confined to whether the United States is under an obligation to enter into arbitration in accordance with section 21 of the Agreement between the United Nations and the United States regarding the Headquarters of the United Nations. The question is thus confined to a preliminary question of procedure. The General Assembly deliberately refrained from asking the Court any question treating the underlying question of substance, namely, whether, by reason of the provisions of the Headquarters Agreement, the Permanent Observer Mission of the Palestine Liberation Organization to the United Nations shall be enabled to maintain premises and adequate functional facilities within the jurisdiction of the United States. That question was withheld from the court, with the clear intention that it should be dealt with exclusively pursuant to section 21 of the Headquarters Agreement, namely, by an arbitral tribunal empowered to render a final decision. It should be observed in this connection that section 21 further provides that the Secretary-General of the United Nations or the United States may ask the General Assembly to request of the International Court of Justice an advisory opinion "on any legal question arising in the course of such [arbitral] proceedings… Thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court." But no such question has been put to the Court, at any rate as yet. Rather, the question which is before the Court solely concerns the obligation to enter into arbitration under section 21 of the Headquarters Agreement.

Nevertheless, the Court has adopted an Order which taken note of and quotes a paragraph of a General Assembly resolution which is not addressed to it, which paragraph engages the underlying question of substance described above. That paragraph, and more explicitly the resolution which contains it, adopts a position on that question of substance.

In so doing, the Court, in my view has at once surpassed the bounds of its jurisdiction and trenched upon the question of substance which has been withheld from it. Worse still, in the event that arbitration were to take place between the United Nations and the United States, pursuant to section 21, and a question arising in the course of such proceedings were to be put to the Court, the Court, by quoting the paragraph in question, may have laid itself open to the charge of prejudging that question.

In defence of the Court, it may be said that the Court, being unable to indicate provisional measures in this advisory proceeding, took note of the paragraph at issue in lieu of them. That may be an accurate explanation of the intention of the Court but it cannot be an adequate defence of its action. The Court's quotation of the paragraph at issue can have no injunctive effect; it is in no measure an effective substitute for an indication of provisional measures. It rather seems to be an expression of the Court's concern, an expression which is not juridical in character. For that reason as well, its inclusion in the Court's Order is to be regretted.

(Signed) Stephen M. SCHWEBEL.