Un Headquarters Agreement Case
Before the facts reached that point, the Secretary-General wrote to the Permanent Representative of the United States on 13 October 1987 expressing his deep concern at the adoption by the Senate of an amendment to make it illegal to maintain a PLO office in the United States. Recalling the wording of the Secretary of State`s letter of 29 January 1987, he stated: “I agree with the views of the Secretary of State on this matter … ». [24] This letter was reproduced in paragraph 33 of the reports submitted by the parties to the Court. See also the letter from State Sec. George P. Shultz to Senators Robert J. Dole, Charles E. Grassley, Claiborne Pell, and Jack F. Kemp (July 31, 1987) (“this would be considered a breach of a U.S. treaty obligation”); Letter from Sec.
Shultz to Senator Dole (29. January 1987), reprinted in, 133 Cong.Rec. S 6.449 (daily edition) 14 May 1987) (“Although we are therefore obliged to permit and reside in the United States for United States personnel to enter and reside in the United States to perform their official duties at United Nations Headquarters, we reserve the right to refuse entry into or expulsion of individual PLO officials directly involved in terrorist acts”); Letter from Sec. Shultz to Rep. Kemp (November 12, 1986), reprinted in, 133 Cong.Rec. E 1 635, 1 636 (daily edition of 29 April 1987) (same language). The term “interpretation and application” has appeared in one version or another in various dispute settlement provisions that span several decades in the past. In Certain German Interests in Polish Upper Silesia (S.C .I. J., Series A, No. 6, p. 6.
14) it was decided that it was not necessary to fill in both elements of the cumulative expression, since the word “and” should be read disjunctively. The term in this case happens to be “interpretation or application”. The satisfaction of both elements will therefore suffice. However, given that it is not possible to interpret a contract other than by reference to a fact (even if it is taken hypothetically) and that it is possible to apply a contract only on the basis of an interpretation of it, there is a demonstrable view that there is little practical or even theoretical distinction between the two elements of the formula (see L.B. Sohn, “Settlement of disputes relating to the interpretation and application of contracts”, Recueil des cours de l`Académie de droit international de La Haye, vol. 150, 1976, p. 271). It is questionable whether the two elements constitute a comprehensive conception of art, which generally includes all disputes concerning the rights and obligations arising from the contract of control (see the language used in Chorzów Factory, p.C.I.J., Series A, No. 9, p.
24). It is not fair in many respects to adopt an approach that would attempt to avoid this conclusion by dissecting the sentence in question, focusing separately on its individual elements, and then reading them as if they did not belong together in a single formula whose power, while coming from their components, does not correspond to their sum1[1] 42. The United States could indicate in its written statement that neither the signing of the Anti-Terrorism Act, nor its entry into force, nor the decision of the Attorney General to implement it, nor its use of judicial proceedings to close the PLO`s mission to the United Nations, were sufficient to provoke a dispute between the United Nations and the United States. Given that the case was still pending before a U.S. court and that the United States “will not take any further action to close the mission” until the decision of that court, according to the letter of 11 March 1988 from the Permanent Representative-in-Office. The Court cannot accept such an argument. Although the existence of a dispute presupposes a claim arising from the conduct of one of the parties or a decision of one of the parties, it in no way requires that an contested decision has already entered into force. In addition, a dispute may also arise if the party concerned ensures that no enforcement action will be taken until it has been ordered by decision of the national courts. 38.
In the Court`s view, where a party protests against the conduct or decision of another party and claims that such conduct or decision constitutes a violation of the treaty, the mere fact that the accused party does not put forward any argument justifying its conduct under international law does not preclude the opposing positions of the parties: to give rise to a dispute over interpretation or application. of the contract. In the case concerning United States diplomatic and consular personnel in Tehran, the Court`s jurisdiction was invoked primarily on the basis of the Optional Protocols on the Compulsory Settlement of Disputes relating to the 1961 and 1963 Vienna Conventions on Diplomatic Relations on Consular Relations, in which the disputes to which they applied: such as “disputes arising out of the relevant interpretation or application or convention. Iran, which did not appear in the proceedings before the Court, acted in a manner which, in the view of the United States, had committed breaches of the Conventions, but, to the extent that the Court had been informed of them, Iran had at no time claimed to justify its appeal by an alternative interpretation of the Conventions. on the basis of which such acts do not constitute such an offence. The tribunal did not find it necessary to investigate Iran`s position to establish the existence of a “dispute”; In order to determine whether it was competent, it indicated that the general approach taken above seemed to be reinforced by three considerations. First, the case-law of the Court and its predecessor does not appear to have the power to interpret too narrowly the scope of the provisions relating to the settlement of disputes (see, inter alia, Mavrommatis Jerusalem Concessions, P.C I.J., Series A, paragraph 5, pp. 47-48; Chorzów Factory, P.C.
I.J., Series A, paragraph 9, pp. 20-25; the interpretation of the peace treaties with Bulgaria, Hungary and Romania, I.C. J. Reports 1950, p. 75; and the ICA0 Council Jurisdiction Appeal, I.C. J. Reports 1972, pp. 106-107, 125-126 and 147). The arbitration also rejects the argument that “arbitration agreements, to the extent that they constitute a transfer of jurisdiction to the international authority, must be interpreted restrictively” (Stephen M. Schwebel, International Arbitration: Three Salient Problems, Cambridge, 1987, p. 149, footnote 12, based on the interpretation of Article 181 of the Treaty of Neuilly (The Central Rhodope Forests), Preliminary question (1931) UNRIAA, 1391, 1403). The mission`s long-standing and well-established position at the United Nations, supported by international agreements, as well as the text and legislative history of the ATA, do not reveal a clear legislative intent that Congress would order the Attorney General, the State Department, or this court to violate the headquarters agreement.
This court recognizes the validity of the government`s position that Congress has the power to enact laws that repeal previous treaties or international obligations entered into by the United States. Whitney vs. Robertson, above, 124 U.S. at 193-95, 8 pp.c. at 457-58; The Head Money Cases, above, 112 U.S. at 597-99, 5 pp. Ct. at 253-54. However, unless this power is exercised clearly and unambiguously, this court is required to interpret the laws in a manner consistent with existing contractual obligations. This is a rule of legal construction that has been supported by an unbroken line of authority for more than a century and a half. Recently, the Supreme Court in Weinberger v.
Rossi, loc. cit., 456 U.S. at 32, 102 S.Ct. at 1516: First, this court cannot order the United States to submit to arbitration without exceeding the scope of its powers under Article III. What distinguishes this case from the usual situation in which two parties have agreed to binding arbitration to resolve future disputes that requires the tribunal to stay its proceedings, see 9 U.S.C. § 3 (1982)[19], is that we are dealing here with issues of international policy. This is an area where the courts generally cannot participate. .