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Treaty Interpretation and the Exercise of Prudential Discretion by the International Court of Justice: Some Reflections on the PLO Mission Case

Published online by Cambridge University Press:  21 May 2009

Tiyanjana Maluwa
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On 26 April 1988, the International Court of Justice (hereinafter ‘the ICJ’ or ‘the Court’) delivered its Advisory Opinion on the Applicability of the Obligation to Arbitrate under section 21 of the United Nations Headquarters Agreement of 26 June 1947 (hereinafter ‘the PLO Mission case’). Although it might be argued that in this case the Court was not really called upon to deliberate or pronounce upon significantly fundamental issues of international law, the Opinion does raise a number of issues that may in time come to be regarded as landmark planks in the growing body of the Court's jurisprudence. But not all aspects of the Opinion can be cast in a positive light, at least from the point of view of some legal commentators. On the contrary, there are certain aspects of the decision which may arguably be characterized as a blot on the Court's jurisprudence. I propose to address two of these: the ICJ's approach to the interpretation of the provisions of the UN Headquarters Agreement which were at the centre of the dispute between the United Nations and the United States, and the question of prudential discretion as exercised by the Court in this particular case. But first, a discussion of the background facts.

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Articles
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Netherlands International Law Review , Volume 37 , Issue 3 , December 1990 , pp. 330 - 346
Copyright
Copyright © T.M.C. Asser Press 1990

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References

1. ICJ Rep. (1988) p. 12 (Advisory Opinion of 26 April 1988).

2. See Res, G.A.. 42/229B, Resolutions and Decisions Adopted by General Assembly at its Forty-Second Session (29 February – 2 March 1988), UN Doc. GA/7612/Add.l (9 03 1988) p. 3Google Scholar.

3. Observer Status of the Palestine Liberation Organization, Res, G.A.. 3237 (XXIX), 29 G.A. Off. Rec. Supp. (No. 31) p. 4Google Scholar; UN Doc. A/9631 (1974).

4. Pub. L. No. 100–204, paras. 1001–1005, 101 Sat. 1406 (codified at 22 USCA paras. 5201–5203 (West Supp. 1988)). Reproduced in 27 ILM (1988) p. 715 at p. 756.

5. The declared aim of the organization is ‘[to] stop the defamation of Jewish people and to secure justice and fair treatment to all citizens alike’. See I Encyclopedia of Assoc. (1988) p. 1334.

6. The Anti-Defamation League v. Kissinger, No. 74 Civ. 1545 (E.D.N.Y., 31 October 1974).

7. See Reisman, W.M., ‘An International Farce: The Sad Case of the PLO Mission’, 14 Yale JIL (1989) p. 412 at p. 414Google Scholar.

8. This was an incident in which a group of Palestinians, believed to have been allied to the PLO but described by the latter as ‘irregulars’, seized a cruise liner with the intention of using it to launch an operation against Israel; the Palestinians murdered an elderly American passenger in the course of seizing the ship. For a fuller account of the incident, see Gooding, V., ‘Fighting Terrorism in the 1980's: The Interception of the Achille Lauro Hijackers’, 12 Yale JIL (1987) p. 158 at pp. 164–168Google Scholar.

9. The Court had invited the United States to submit written statements by 25 March and to participate in oral proceedings on 11 April 1988. In a letter dated 25 March 1988, Ambassador John Shad, the US Ambassador at The Hague, informed the Court that: ‘[The] United States respectfully declines the Court's invitation to submit further views on this issue at the oral proceedings scheduled for April 11’. See text of letter in 27 ILM (1988) p. 806Google Scholar.

10. See, for example, Reisman, , loc. cit. n. 7, p. 423Google Scholar.

11. See UN Doc. A/C.6/42/SR.58; reproduced in part in ICJ Rep. (1988) p. 17.

12. Letter of 11 March 1988 from US Attorney General Edwin Meese to the Permanent Observer of the PLO to the United Nations, cited in United States v. Palestine Liberation Organization, No. 88 Civ. 1962, at 9 (S.D.N.Y., 29 June 1988); reprinted in part in ICJ Rep. (1988) p. 23.

13. See letter of 25 March 1988 from Ambassador John Shad to the Registrar of the ICJ referred to in n. 9 supra.

14. See also a discussion of this issue by Reisman, , loc. cit. n. 7, p. 424Google Scholar.

15. ICJ Rep. (1988) p. 35. Although the Court was unanimous on its general conclusion and holding, Judges Oda, Schwebel and Shahabuddeen proceeded to deliver separate opinions, while Judge Elias appended an individual declaration.

16. Eisemann, F., ‘La Clause d'Arbitrage Pathologique’, in Carnacini, T., ed., Commercial Arbitration: Essays in Memoriam Eugenio Minoli (1974) p. 129Google Scholar.

17. See Reisman, loc. cit. n. 16.

18. This is particularly the case with commercial treaties; see, for example, Eisemann, loc. cit. n. 16.

19. Maluwa, T., ‘The Peaceful Settlement of Disputes Among African States, 1963–1983: Some Conceptual Issues and Practical Trends’, 38 ICLQ (1989) p. 299 at p. 315CrossRefGoogle Scholar.

20. See generally, for example, the discussion in the work cited in n. 19 supra.

21. ICJ Rep. (1988) p. 29.

22. Ibid. p. 36.

23. Certain German Interests in Polish Upper Silesia case, 1926 PCIJ Rep., Ser. A/No. 7, at 19.

24. ILC Yearbook 1977 Vol. II p. 26.

25. Reisman, , loc. cit. n. 7, p. 428Google Scholar.

26. Ibid. pp. 426–428.

27. ICJ Rep. (1988) p. 52.

28. Raz, J., The Authority of Law (1979) p. 153Google Scholar.

29. ICJ Rep. (1988) p. 58.

30. See n. 11 supra.

31. Reproduced in part in ICJ Rep. (1988) p. 45.

32. The observation by the representative of Zimbabwe exemplified this view: ‘The legal opinion expressed in the letter from [Secretary of State] Mr. Shultz was shared by the Secretary-General and the United Nations Legal Counsel…’. Similarly, the representative of the Federal Republic of Germany, speaking on behalf of all the member States of the European Community, stated that: ‘[They] fully share the views already expressed by both the Secretary-General of the United Nations and the United States Secretary of State [to] the effect that the United States is under an obligation to permit PLO Observer Mission personnel to enter and remain in the United States to carry out their official functions at the United Nations Headquarters’: See UN Doc. A/42/PV.101, pp. 23, 51–52.

33. It may be recalled that after ‘[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…’ the General Assembly then went on to phrase the question to be presented to the Court for an advisory opinion in the following terms: ‘[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(11)], under an obligation to enter into arbitration in accordance with section 21 of the Agreement?’

34. See n. 23 supra.

35. Sohn, L.B., ‘Settlement of Disputes Relating to the Interpretation and Application of Treaties’, 150 Hague Recueil (1976) p. 195 at p. 271Google Scholar.

36. Chorzow Factory case, 1927 PCIJ Rep., Ser. A/ No. 9, p. 24.

37. Judge Shahabuddeen, in fact, advocates the restrictive construction of dispute settlement provisions and other arbitral clauses. See ICJ Rep. (1988) p. 62.

38. Ibid. pp. 40–41.

39. Ibid. p. 40.

40. Ibid. p. 42.

41. Ibid. p. 63.

42. Reisman, W.M., ‘Respecting One's Own Jurisprudence: A Plea to the International Court of Justice’, 83 AJIL (1989) p. 312 at p. 317CrossRefGoogle Scholar.

43. Reisman, , lot cit. n. 7, p. 428Google Scholar.