As with any agreement, headquarters agreements between an international organization and its host state may give rise to dispute. In its 2004 Review of the Headquarters Agreements Concluded by the Organizations of the United Nations System, briefly recognizes this fact: “Although rarely activated, United Nations headquarters agreements normally contain a mechanism for the settlement of disputes that may arise from their interpretation or application.”[1] The use of ‘normally’ is noteworthy, insofar as it is striking that any headquarters agreement would omit such a provision.[2] After all, particularly for a longstanding universal international organization such as the United Nations, headquarters typically exist for decades at a time, spanning multiple governments which may vary in how much they welcome or resist such international presence. For example, the U.N. Economic Commission for Latin America signed its headquarters agreement with the government of Chile in February 1953. Twenty years later, Chile’s government was overthrown by a military coup, precipitating a very different relationship with the United Nations system. Simply put, over the life of a headquarters, disagreements may take a form hardly conceivable as between the signatory government and organization.
On the other hand, dispute settlement provisions are present in international agreements of every type, not only headquarters agreements. Yet, it is not clear that the same mechanism suited to resolution of a dispute under, say, the Convention on the Elimination of All Forms of Discrimination against Women is equally well-suited to resolution of a dispute under a headquarters agreement.
Thus, given the importance of dispute settlement provisions in general, and their particular importance for headquarters of international organizations, this post surveys several postwar dispute settlement provisions (or the lack thereof) between international organizations and the host government, as well as the dispute settlement provisions of one more recently established headquarters.
First, the 1947 U.N. Headquarters Agreement between the United Nations and the United States (“UNHQA”) includes a dispute settlement provision, which reads as follows:
Section 21
(a) 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 agree upon a third, then by the President of the International Court of Justice.
(b) The Secretary-General 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 proceedings. Pending the receipt of the opinion of the Court, an interim decision of the arbitral tribunal shall be observed on both parties. Thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court.
Ad hoc, three-arbitrator tribunals remain a very common dispute settlement mechanism, even today. The ICJ President is a common ‘tiebreaker’ in such agreements for purposes of selecting the third arbitrator. In that sense, the Section 21(a) of the UNHQA is well within the mainstream that has developed since 1946. The UNHQA also makes this mechanism mandatory (by using the term “shall”); some international agreements do not do so, but in the case of a quasi-permanent physical fixture such as a headquarters, optional dispute settlement would not promote harmonious operation, and would indeed appear to give the host state significant leverage.
Section 21(b), however, is quite unique. It prescribes a two-track mechanism: (1) arbitration, (2) an ICJ advisory opinion. Strikingly, the ICJ advisory opinion is relegated to fodder for the arbitral tribunal, which must “hav{e} regard to the opinion of the Court.” This phrase is ambiguous, but suffice to say that the arbitrators aren’t required to follow the ICJ.
The optional advisory opinion furthermore leads to a few interesting wrinkles concerning the participation of ICJ judges and the arbitral tribunal’s power to override the ICJ. Until 2018, ICJ judges served as members of arbitral tribunals (particularly investment arbitration) rather freely, despite the potential for conflict with Art. 16(1) of the ICJ Statute.[3] Given that subsection (b) permits the request of an advisory opinion “in the course of such [arbitral] proceedings,” the arbitral tribunal will be constituted prior to triggering action by the ICJ, raising the possibility that an ICJ judge could be selected for the arbitral tribunal. Per Art. 17(2) of the ICJ Statute, such judge would presumably recuse themselves from participating in the ICJ’s advisory opinion.[4]
As far as the author is aware, the mechanism set forth in Section 21(b) of the UNHQA was only carried forward in one other U.N. system headquarters agreement, the 1958 agreement between the U.N. Economic Commission for Africa and the Government of Ethiopia (Art. IX, Sec. 21).
Interestingly, the U.N. Economic Commission for Latin America (“ECLA”), as discussed above, concluded its headquarters agreement five years prior, and omitted the foregoing provision. Instead, that agreement provides:
Art. XI, Section 21. Any dispute between the Government and ECLA concerning the interpretation or application of this Agreement or any supplementary agreement, or any question affecting the Headquarters of ECLA or relations between ECLA and the Government, shall be resolved in accordance with the procedure indicated in article VIII, section 30, of the Convention on the Privileges and Immunities of the United Nations.
The UNCPI, in turn, provides:
Art. VIII, Section 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.
Thus, the ECLA and the Government of Chile agreed, strikingly, to mandatory resolution by the ICJ. For a variety of reasons, states are often wary of preemptively providing consent to the ICJ’s jurisdiction by way of dispute settlement provisions in international agreements. Granted, the mandatory request of a binding advisory opinion is at least technically different than the mandatory consent to jurisdiction for a traditional inter partes dispute. In either case, though, the ICJ is given de facto power to resolve the dispute.
Finally, one wrinkle remains. The ECLA HQA refers to the “procedure indicated in article VIII, section 30” of the UNCPI. This seems to have the legal effect of importing that provision wholesale into the ECLA HQA. In other words, the ECLA HQA references Section 30 of the UNCPI, it does not reference Section 30 of the UNCPI as it applies to Chile. Thus, Section 30 of the UNCPI as applied in the ECLA HQA would not be subject to any reservations entered vis-à-vis the UNCPI. Given that Chile became party to the UNCPI in 1948 and entered no reservations at that time, this was essentially a non-issue. The 1986 Vienna Convention does not conceive of later-filed reservations.[5]
Were this approach taken with respect to other states parties to the UNCPI, however, the manner in which UNCPI Section 30 was incorporated or cross-referenced could have important consequences. Specifically, several states (largely then-members of the Soviet bloc) entered reservations that “for the submission of a particular dispute for settlement by the International Court, the consent of all the parties to the dispute is required in every individual case,” and that consent was similarly required for an advisory opinion to be “accepted as decisive.” The compatibility of such reservations with the object and purpose of the UNCPI has been challenged by at least the Government of the United Kingdom,[6] but it could nevertheless (if nothing else) needlessly complicate cross-application.
In sum, there were a variety of approaches early on, a reflection of the fact that while the United Nations may prefer a uniform approach to establishment of U.N. system headquarters, the host states with which the U.N. enters into such agreements will often have varying preferences of their own.
[1] I. Gorita & W. Münch, “Review of the Headquarters Agreements Concluded by the Organizations of the United Nations System: Human Resources Issues Affecting Staff,” U.N. Doc. No. A/59/526 (Oct. 25, 2004) at ¶18 (emphasis supplied).
[2] For example, the Agreement between the Government of the Hashemite Kingdom of the Jordan and the United Nations Relief and Works Agency for Palestine Refugees in the Near East, signed on 14 March and 20 August 1951, appears not to include any dispute resolution provision, although as regards privileges and immunities afforded to staff per Art. I the UNCPI dispute settlement provision is arguably incorporated by reference.
[3] This particular development has been profiled elsewhere, for example: L.L. Soares Pereira, “Restrictions in appointing sitting International Court of Justice judges in arbitration proceeding,” Latin American Society of International Law (May 5, 2019); C. Mutso, “New Restrictions on Arbitral Appointments for Sitting ICJ Judges,” EJIL Talk! (Nov. 5, 2018).
[4] For an overview of the issue of the recusal of ICJ Judges, see C. Giorgetti, “Chapter 1: The Challenge and Recusal of Judges of the International Court of Justice,” in C. Giorgetti, ed., The Challenge and Recusal of Judges of the International Court of Justice (2015).
[5] See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) at Arts. 19-24.
[6] Some countries, e.g., Bulgaria and Hungary, withdrew such reservations subsequent to the U.K.’s objection.
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