Chapter VII. Decisions and Advisory Opinions of International Tribunals

International Court of Justice

ADVISORY OPINION1

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 19472

On 2 March 1988, the General Assembly of the United Nations adopted resolution 42/229 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?”

The letter of the Secretary-General, transmitting to the Court the request for an advisory opinion and certified copies of the English and French texts of the said resolution, was received in the Registry by facsimile on 4 March 1988 and by post on 7 March 1988.

By an Order of 9 March 1988 (I.C.J. Reports 1988, p. 3) the Court, having regard to the fact that the decision to request an advisory opinion was made “taking into account the time constraint” (cf. resolution 42/229 B), in accordance with Article 66, paragraph 2, of its Statute, applying Article 103 of its Rules, accelerated its procedure and fixed 25 March 1988 as the time limit for the submission of written statements by the United Nations and the United States, as well as by any other State party to the Statute of the Court which desired to do the same (ibid.). By the same Order the Court decided to hold a hearing, opening on 11 April 1988, at which oral comments on written statements might be submitted by the United Nations, the United States and such other States as might have presented written statements. Judge Schwebel appended a separate opinion to the Order (ibid., pp. 6-7).

In accordance with Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations transmitted to the Court a dossier of documents likely to throw light upon the question.

Written statements were filed, within the time limit fixed, by the United Nations, the United States of America, the German Democratic Republic and the Syrian Arab Republic.

On 11 April 1988, a public sitting was held, at which the United Nations Legal Counsel, Mr. Carl-August Fleischhauer, made an oral statement to the

Court on behalf of the Secretary-General. Certain Members of the Court put questions to Mr. Fleischhauer, which were answered at a further public sitting held on 12 April 1988.

At a public sitting held on 26 April 1988, the Court delivered its advisory opinion (I.C.J. Reports 1988, p. 12), of which a summary outline and the complete text of the operative paragraph are given below:

Submission of the request and subsequent procedure (paras. 1-6)

The question upon which the Court’s advisory opinion had been sought was contained in United Nations General Assembly resolution 42/229 B, adopted on 2 March 1988. This resolution read in full as follows:

“The General Assembly,

“Recalling its resolution 42/210 B 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

February 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 interpretation or application of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, dated 26 June 1947 [see resolution 169 (II)], and noting his conclusions that attempts at amicable settlement were deadlocked and that he had invoked the arbitration procedure 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 implementation of the dispute settlement procedure in accordance with section 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 following 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 America regarding the Headquarters of the United Nations [see resolution 169 (II)], under an obligation to enter into arbitration in accordance with section 21 of the Agreement?’ ”

In an Order dated 9 March 1988, the Court found that an early answer to the request would be desirable (Rules of Court, Art. 103), and that the United Nations and the United States of America could be considered likely to furnish information on the question (Statute, Art. 66, para. 2), and, accelerating its procedure, fixed 25 March 1988 as the time limit for the submission of a written statement from them, or from any other State party to the Statute which desired to submit one. Written statements were received from the United Nations, the United...