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[p.9]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 3 March 1992, the Government of the Great Socialist People's Libyan
Arab Jamahiriya (hereinafter called "Libya") filed in the Registry of the
Court an Application instituting proceedings against the Government of the
United Kingdom of Great Britain and Northern Ireland (hereinafter called
"the United Kingdom") in respect of a "dispute between Libya and the United
Kingdom concerning the interpretation or application of the Montreal
Convention" of 23 September 1971 for the Suppression of Unlawful Acts
against the Safety of Civil Aviation (hereinafter called "the Montreal
Convention"). The Application referred to the destruction, on 21 December
1988, over Lockerbie (Scotland), of the aircraft on Pan Am flight 103, and
to charges brought by the Lord Advocate for Scotland in November 1991
against two Libyan nationals sus-[p 12]pected of having caused a bomb to be
placed aboard the aircraft, which bomb had exploded causing the aeroplane to
crash. The Application invoked as the basis for jurisdiction Article 14,
paragraph 1, of the Montreal Convention.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the United Kingdom by the
Registrar; pursuant to paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.
3. Pursuant to Article 69, paragraph 3, of the Rules of Court, the Registrar
addressed to the Secretary General of the International Civil Aviation
Organization the notification provided for in Article 34, paragraph 3, of
the Statute.
Pursuant to Article 43 of the Rules of Court, the Registrar also addressed
the notification provided for in Article 63, paragraph 1, of the Statute to
all those States which, on the basis of information obtained from the
depositary Governments, appeared to be parties to the Montreal Convention.
4. Since the Court included upon the Bench no judge of Libyan nationality,
Libya exercised its right under Article 31, paragraph 2, of the Statute to
choose a judge ad hoc to sit in the case: it chose Mr. Ahmed Sadek El-Kosheri
to do so.
5. On 3 March 1992, immediately after the filing of its Application, Libya
submitted a request for the indication of provisional measures under Article
41 of the Statute.
By an Order dated 14 April 1992, the Court, after hearing the Parties, found
that the circumstances of the case were not such as to require the exercise
of its power to indicate provisional measures.
6. By an Order of 19 June 1992, having regard to the requests of the
Parties, the Court fixed 20 December 1993 as the time-limit for the filing
by Libya of a Memorial and 20 June 1995 as the time-limit for the filing by
the United Kingdom of a Counter-Memorial.
Libya duly filed its Memorial within the prescribed time-limit.
7. Within the time-limit fixed for the filing of its Counter-Memorial, the
United Kingdom filed Preliminary Objections to the jurisdiction of the Court
and the admissibility of the Application.
Accordingly, by an Order of 22 September 1995, the Court, noting that by
virtue of Article 79, paragraph 3, of the Rules of Court the proceedings on
the merits were suspended, fixed 22 December 1995 as the time-limit within
which Libya might present a written statement of its observations and
submissions on the Preliminary Objections.
Libya filed such a statement within the time-limit so fixed, and the case
became ready for hearing in respect of the Preliminary Objections.
8. By a letter dated 19 February 1996, the Registrar, pursuant to Article
34, paragraph 3, of the Statute, communicated copies of the written
pleadings to the Secretary General of the International Civil Aviation
Organization and, referring to Article 69, paragraph 2, of the Rules of
Court, specified that, if the Organization wished to present written
observations to the Court, they should be limited, at that stage, to
questions of jurisdiction and admissibility.
By a letter of 26 June 1996, the Secretary General of the International
Civil Aviation Organization informed the Court that the Organization "had no
observations to make for the moment" but wished to remain informed about the
progress of the case, in order to be able to determine whether it would be
appropriate to submit observations later. [p 13]
9. By a letter dated 23 November 1995, the Registrar informed the Parties
that the Member of the Court having United Kingdom nationality had asked to
be excused from taking part in the decision of the case, pursuant to Article
24, paragraph 1, of the Statute. By a letter of 5 March 1997, the Deputy
Agent of the United Kingdom, referring to Articles 31 of the Statute and 37
of the Rules of Court, informed the Court of his Government's intention to
choose Sir Robert Jennings to sit as judge ad hoc in the case. In accordance
with Article 35, paragraph 3, of the Rules of Court a copy of that letter
was communicated by the Registrar to the Libyan Government, which was
informed that 7 April 1997 had been fixed as the time-limit within which
Libya could make any observations it might wish to make. No observations
from the Libyan Government reached the Court within the time-limit thus
fixed.
Having regard to the proceedings instituted by Libya against the United
States of America on 3 March 1992 in the case concerning Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), and to its composition in the present case in which a judge having
United States nationality was sitting, in accordance with Article 31,
paragraph 1, of the Statute, the Court instructed the Registrar to inform
Libya and the United Kingdom, and the United States of America, that it was
prepared to accept from them, no later than 30 June 1997, any observations
they wished to make in respect of the application of Article 31, paragraph
5, of the Statute. The Registrar wrote to the three States on 30 May 1997 to
that effect. Each of the three Governments submitted observations within the
prescribed time-limit. After due deliberation, the Court, by ten votes to
three, decided that in the present phase relating to jurisdiction and
admissibility in the two cases, the United Kingdom and the United States of
America were not parties in the same interest within the meaning of Article
31, paragraph 5, of the Statute; that the choice of a judge ad hoc by the
United Kingdom was therefore justified in the current phase of the
proceedings in the present case; and that accordingly Sir Robert Jennings
would sit on the Bench for the purpose of the oral proceedings and would
take part in the deliberations by the Court in that phase of the case. The
Registrar notified that decision to Libya and to the United Kingdom, and
informed the United States of America of the decision, by letters dated 16
September 1997.
10. The President of the Court, being a national of one of the Parties to
the case concerning Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United States of America), was unable, by virtue of
Article 32, paragraph 1, of the Rules of Court, to exercise the functions of
the presidency in respect of that case. Although that provision is not
applicable in the present case, the President thought it appropriate that he
should not exercise the functions of the presidency in the present case as
well. It therefore fell to the Vice-President, in accordance with Article
13, paragraph 1, of the Rules of Court, to exercise the functions of the
presidency in the case.
11. In accordance with Article 53, paragraph 2, of its Rules, the Court
decided to make accessible to the public, on the opening of the oral
proceedings, the Preliminary Objections of the United Kingdom and the
written statement containing the observations and submissions of Libya on
the Objections, as well as the documents annexed to those pleadings, with
the exception of Annex 16 to the Preliminary Objections. [p 14]
12. Public sittings were held between 13 and 22 October 1997, at which the
Court heard the oral arguments and replies of:
For the United Kingdom: Sir Franklin Berman,
The Right Honourable the Lord Hardie,
Mr. Daniel Bethlehem,
Mr. Christopher Greenwood.
For Libya: H.E. Mr. Hamed Ahmed Elhouderi,
Mr. Abdelrazeg El-Murtadi Suleiman,
Mr. Jean Salmon,
Mr. Eric David,
Mr. Eric Suy,
Mr. Ian Brownlie.
At the hearings, Members of the Court put questions to the Parties, who
answered in writing after the close of the oral proceedings.
*
13. In the Application, the following requests were made by Libya:
"Accordingly, while reserving the right to supplement and amend this
submission as appropriate in the course of further proceedings, Libya
requests the Court to adjudge and declare as follows:
(a) that Libya has fully complied with all of its obligations under the
Montreal Convention;
(b) hat the United Kingdom has breached, and is continuing to breach, its
legal obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2) and 11 of
the Montreal Convention; and
(c) that the United Kingdom is under a legal obligation immediately to cease
and desist from such breaches and from the use of any and all force or
threats against Libya, including the threat of force against Libya, and from
all violations of the sovereignty, territorial integrity, and the political
independence of Libya."
14. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Libya,
in the Memorial:
"For these reasons, while reserving the right to supplement and amend these
submissions as appropriate in the course of further proceedings, Libya
requests the Court to adjudge and declare as follows:
(a) that the Montreal Convention is applicable to this dispute;
(b) that Libya has fully complied with all of its obligations under the
Montreal Convention and is justified in exercising the criminal jurisdiction
provided for by that Convention;
(c) that the United Kingdom has breached, and is continuing to breach, its
legal obligations to Libya under Article 5, paragraphs 2 and 3, Article 7,
Article 8, paragraph 3, and Article 11 of the Montreal Convention;
(d) that the United Kingdom is under a legal obligation to respect Libya's
right not to have the Convention set aside by means which [p 15] would in
any case be at variance with the principles of the United Nations Charter
and with the mandatory rules of general international law prohibiting the
use of force and the violation of the sovereignty, territorial integrity,
sovereign equality and political independence of States."
On behalf of the Government of the United Kingdom,
in the Preliminary Objections:
"For the reasons advanced, the United Kingdom requests the Court to adjudge
and declare that:
it lacks jurisdiction over the claims brought against the United Kingdom by
the Libyan Arab Jamahiriya
and/or
the claims brought against the United Kingdom by the Libyan Arab Jamahiriya
are inadmissible."
On behalf of the Government of Libya,
in the written statement of its observations and submissions on the
Preliminary Objections:
"For these reasons, and reserving the right to complement or modify the
present submissions in the course of the proceedings if necessary, Libya
requests the Court to adjudge and declare:
-- that the preliminary objections raised by the United Kingdom must be
rejected and that, as a consequence:
(a) the Court has jurisdiction to entertain the Application of Libya,
(b) that the Application is admissible;
-- that the Court should proceed to the merits."
15. In the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of the United Kingdom,
at the hearing of 20 October 1997:
"The Court [is requested to] adjudge and declare that:
it lacks jurisdiction over the claims brought against the United Kingdom by
the Libyan Arab Jamahiriya
and/or
those claims are inadmissible;
and that the Court dismiss the Libyan Application accordingly."
On behalf of the Government of Libya:
at the hearing of 22 October 1997:
"The Libyan Arab Jamahiriya requests the Court to adjudge and declare:
-- that the Preliminary Objections raised by the United Kingdom . . . must
be rejected and that, as a consequence: [p 16]
(a) the Court has jurisdiction to entertain the Application of Libya,
(b) that the Application is admissible;
-- that the Court should proceed to the merits."
***
16. In the present case, the United Kingdom has raised two objections: one
to the jurisdiction of the Court and the other to the admissibility of the
Application. According to the United Kingdom, "both of these are objections
of an essentially preliminary character".
17. The Court will first consider the objection raised by the United Kingdom
to its jurisdiction.
***
18. Libya submits that the Court has jurisdiction on the basis of Article
14, paragraph 1, of the Montreal Convention, which provides that:
"Any dispute between two or more Contracting States concerning the
interpretation or application of this Convention which cannot be settled
through negotiation, shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for
arbitration the Parties are unable to agree on the organization of the
arbitration, any one of those Parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court."
19. The Parties agree that the Montreal Convention is in force between them
and that it was already in force both at the time of the destruction of the
Pan Am aircraft over Lockerbie, on 21 December 1988, and at the time of
filing of the Application, on 3 March 1992. However, the Respondent contests
the jurisdiction of the Court because, in its submission, all the requisites
laid down in Article 14, paragraph 1, of the Montreal Convention have not
been complied with in the present case.
***
20. The Respondent expressly stated that it did not wish to contest the
jurisdiction of the Court on all of the same grounds it had relied upon in
the provisional measures phase of the proceedings, and restricted itself to
alleging that Libya had failed to show, first, that there existed a legal
dispute between the Parties and second, that such dispute, if any, concerned
the interpretation or application of the Montreal Convention and fell, as a
result, within the terms of Article 14, paragraph 1, of that Convention.
Consequently, the United Kingdom did not, in the present phase of the
proceedings, reiterate its earlier arguments as to whether or not the
dispute that, in the opinion of Libya, existed between the Parties could be
settled by negotiation; whether Libya had made a [p 17]proper request for
arbitration; and whether the six-month period required by Article 14,
paragraph 1, of the Convention had been complied with.
21. The Court nonetheless considers it necessary to deal briefly with these
arguments. It observes that in the present case the Respondent has always
maintained that the destruction of the Pan Am aircraft over Lockerbie did
not give rise to any dispute between the Parties regarding the
interpretation or application of the Montreal Convention, and that, for that
reason, in the Respondent's view, there was nothing to be settled by
negotiation under the Convention; the Court notes that the arbitration
proposal contained in the letter sent on 18 January 1992 by the Libyan
Secretary of the People's Committee for Foreign Liaison and International
Cooperation to the Minister for Foreign Affairs of the United Kingdom met
with no answer; and it notes, in particular, that the Respondent clearly
expressed its intention not to accept arbitration -- in whatever form --
when presenting and strongly supporting resolution 731 (1992) adopted by the
Security Council three days later, on 21 January 1992.
Consequently, in the opinion of the Court the alleged dispute between the
Parties could not be settled by negotiation or submitted to arbitration
under the Montreal Convention, and the refusal of the Respondent to enter
into arbitration to resolve that dispute absolved Libya from any obligation
under Article 14, paragraph 1, of the Convention to observe a six-month
period starting from the request for arbitration, before seising the Court.
**
22. As recalled by the Parties, the Permanent Court of International Justice
stated in 1924 that "[a] dispute is a disagreement on a point of law or
fact, a conflict of legal views or of interests between two persons"
(Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A, No. 2, p. 11).
The present Court for its part, in its Judgment of 30 June 1995 in the case
concerning East Timor (Portugal v. Australia), emphasized the following:
"In order to establish the existence of a dispute, 'It must be shown that
the claim of one party is positively opposed by the other' (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328; and
further, 'Whether there exists an international dispute is a matter for
objective determination' (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p.
74)." (I.C.J. Reports 1995, p. 100.)
*[p 18]
23. In its Application and Memorial, Libya maintained that the Montreal
Convention was the only instrument applicable to the destruction of the Pan
Am aircraft over Lockerbie, for the following reasons:
(a) the Respondent and Libya are bound by the Montreal Convention which is
in force between the Parties;
(b) the Montreal Convention is specifically aimed at preventing that type of
action (third paragraph of the Preamble);
(c) the actions ascribed to the Libyan nationals are covered by Article 1 of
the Montreal Convention;
(d) "the system of the Montreal Convention, as compared to the system of the
Charter, is both a lex posterior and a lex specialis; consequently, for
matters covered by that Convention, it must a priori take precedence over
the systems for which the Charter provides"; and
(e) there is no other convention concerning international criminal law in
force which is applicable to these issues in the relations between Libya and
the United Kingdom.
24. The United Kingdom does not deny that, as such, the facts of the case
could fall within the terms of the Montreal Convention. However, it
emphasizes that, in the present case, from the time Libya invoked the
Montreal Convention, the United Kingdom has claimed that it was not relevant
as the question to be resolved had to do with "the . . . reaction of the
international community to the situation arising from Libya's failure to
respond effectively to the most serious accusations of State involvement in
acts of terrorism".
25. Consequently, the Parties differ on the question whether the destruction
of the Pan Am aircraft over Lockerbie is governed by the Montreal
Convention. A dispute thus exists between the Parties as to the legal regime
applicable to this event. Such a dispute, in the view of the Court, concerns
the interpretation and application of the Montreal Convention, and, in
accordance with Article 14, paragraph 1, of the Convention, falls to be
decided by the Court.
*
26. Furthermore, in its Application and Memorial, Libya stressed the
following six points in particular in support of the submissions set forth,
respectively, in paragraph 13 (subparagraphs (a) and (b)) and paragraph 14
(subparagraphs (b) and (c)), above:
(a) the actions which brought about the destruction of the Pan Am aircraft
over Lockerbie constitute one of the offences covered by Article 1 of the
Montreal Convention and therefore the Montreal Convention must be applied to
those facts;
(b) Libya has complied with the obligation imposed by Article 5, paragraph
2, of the Montreal Convention of establishing its jurisdiction over the
alleged offenders in the destruction of the aircraft, and it has the right
to exercise the jurisdiction so established; [p 19]
(c) Libya has exercised its jurisdiction over the two alleged offenders on
the basis of its Penal Code, and the Respondent should not interfere with
the exercise of that jurisdiction;
(d) Libya has exercised the rights conferred by Article 6 of the Montreal
Convention by taking all necessary measures to ensure the presence of the
two alleged offenders, making preliminary enquiries, notifying the States
concerned and indicating that it intended to exercise jurisdiction, but the
Respondent, by its actions and threats, is attempting, according to Libya,
to prevent the application of the Convention;
(e) Libya having decided not to extradite the two alleged offenders, Article
7 of the Montreal Convention gives it the right to submit them to its
competent authorities for the purpose of prosecution in accordance with
Libyan law; and
(f) on the basis of Article 8, paragraph 3, of the Montreal Convention, it
has the right not to extradite the two alleged offenders because they are
Libyan nationals and the Libyan Constitution does not permit their
extradition.
27. The Respondent disputes that the Montreal Convention confers on Libya
the rights it claims to enjoy. It contends, moreover, that none of the
provisions referred to by Libya imposes obligations on the United Kingdom.
Finally, it recalls that it never itself invoked the Montreal Convention,
and observes that nothing in that Convention prevented it from requesting
the surrender of the two alleged offenders outside the framework of the
Convention.
28. Article 1 of the Montreal Convention provides as follows:
"Article 1
1. Any person commits an offence if he unlawfully and intentionally:
(a) performs an act of violence against a person on board an aircraft in
flight if that act is likely to endanger the safety of that aircraft; or
(b) destroys an aircraft in service or causes damage to such an aircraft
which renders it incapable of flight or which is likely to endanger its
safety in flight; or
(c) places or causes to be placed on an aircraft in service, by any means
whatsoever, a device or substance which is likely to destroy that aircraft,
or to cause damage to it which renders it incapable of flight, or to cause
damage to it which is likely to endanger its safety in flight; or
(d) destroys or damages air navigation facilities or interferes with their
operation, if any such act is likely to endanger the safety of aircraft in
flight; or
(e) communicates information which he knows to be false, thereby endangering
the safety of an aircraft in flight.[p 20]
2. Any person also commits an offence if he:
(a) attempts to commit any of the offences mentioned in paragraph 1 of this
Article; or
(b) is an accomplice of a person who commits or attempts to commit any such
offence."
Article 5 provides:
"Article 5
1. Each Contracting State shall take such measures as may be necessary to
establish its jurisdiction over the offences in the following cases:
(a) when the offence is committed in the territory of that State;
(b) when the offence is committed against or on board an aircraft registered
in that State;
(c) when the aircraft on board which the offence is committed lands in its
territory with the alleged offender still on board;
(d) when the offence is committed against or on board an aircraft leased
without crew to a lessee who has his principal place of business or, if the
lessee has no such place of business, his permanent residence, in that
State.
2. Each Contracting State shall likewise take such measures as may be
necessary to establish its jurisdiction over the offences mentioned in
Article 1, paragraph 1 (a), (b) and (c), and in Article 1, paragraph 2, in
so far as that paragraph relates to those offences, in the case where the
alleged offender is present in its territory and it does not extradite him
pursuant to Article 8 to any of the States mentioned in paragraph 1 of this
Article.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law."
Article 6, for its part, states:
"Article 6
1. Upon being satisfied that the circumstances so warrant, any Contracting
State in the territory of which the offender or the alleged offender is
present, shall take him into custody or take other measures to ensure his
presence. The custody and other measures shall be as provided in the law of
that State but may only be continued for such time as is necessary to enable
any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary enquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this Article shall be
assisted in communicating immediately with the nearest appropriate
representative of the State of which he is a national.
4. When a State, pursuant to this Article, has taken a person into [p 21]
custody, it shall immediately notify the States mentioned in Article 5,
paragraph 1, the State of nationality of the detained person and, if it
considers it advisable, any other interested State of the fact that such
person is in custody and of the circumstances which warrant his detention.
The State which makes the preliminary enquiry contemplated in paragraph 2 of
this Article shall promptly report its findings to the said States and shall
indicate whether it intends to exercise jurisdiction."
Article 7 is worded in the following terms:
"Article 7
The Contracting State in the territory of which the alleged offender is
found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to
submit the case to its competent authorities for the purpose of prosecution.
Those authorities shall take their decision in the same manner as in the
case of any ordinary offence of a serious nature under the law of that
State."
Finally, in the words of Article 8:
"Article 8
1. The offences shall be deemed to be included as extraditable offences in
any extradition treaty existing between Contracting States. Contracting
States undertake to include the offences as extraditable offences in every
extradition treaty to be concluded between them.
2. If a Contracting State which makes extradition conditional on the
existence of a treaty receives a request for extradition from another
Contracting State with which it has no extradition treaty, it may at its
option consider this Convention as the legal basis for extradition in
respect of the offences. Extradition shall be subject to the other
conditions provided by the law of the requested State.
3. Contracting States which do not make extradition conditional on the
existence of a treaty shall recognize the offences as extraditable offences
between themselves subject to the conditions provided by the law of the
requested State.
4. Each of the offences shall be treated, for the purpose of extradition
between Contracting States, as if it had been committed not only in the
place in which it occurred but also in the territories of the States
required to establish their jurisdiction in accordance with Article 5,
paragraph 1 (b), (c) and (d)."
29. In view of the positions put forward by the Parties, the Court finds
that there exists between them not only a dispute of a general nature, as
defined in paragraph 25 above, but also a specific dispute which concerns
the interpretation and application of Article 7 -- read in conjunction with
Article 1, Article 5, Article 6 and Article 8 -- of the Montreal [p 22]
Convention and which, in accordance with Article 14, paragraph 1, of the
Convention, falls to be decided by the Court.
*
30. Furthermore, Libya maintained in its Application and Memorial that, once
it had commenced its judicial investigation of the two alleged offenders,
the Respondent was, according to Article 11, paragraph 1, of the Montreal
Convention, under an obligation to hand over to the Libyan authorities all
the evidence in its possession regarding the offence. In Libya's opinion,
this obligation was not duly complied with, because the United Kingdom only
transmitted "a copy of the statement of the facts" against the accused, a
document that "contains no evidence of which the Libyan judiciary could make
use".
31. In this connection, the United Kingdom acknowledges that "Article 11,
paragraph 1, differs from the other provisions on which Libya has relied, in
that it does impose obligations on other States" and "is thus capable, in
the abstract, of giving rise to a dispute between Libya and the United
Kingdom". However, it maintains that it did not violate this provision, and
claims in particular that it "provided Libya with copies of the Scottish
charges, the warrant for the arrest of the accused and the Statement of
Facts prepared by the Lord Advocate". It also recalls that at the time when
Libya presented its claims, Libya had not -- any more than had the United
Kingdom -- invoked the Montreal Convention, and it concluded that, "For the
failure of the United Kingdom to supply further information to Libya to
constitute a violation of Article 11, the Convention must at least have been
invoked by one of the States concerned."
32. Article 11 of the Montreal Convention is worded as follows:
"Article 11
1. Contracting States shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of the
offences. The law of the State requested shall apply in all cases.
2. The provisions of paragraph 1 of this Article shall not affect
obligations under any other treaty, bilateral or multilateral, which governs
or will govern, in whole or in part, mutual assistance in criminal matters."
33. Having taken account of the positions of the Parties as to the duties
imposed by Article 11 of the Montreal Convention, the Court concludes that
there equally exists between them a dispute which concerns the
interpretation and application of that provision, and which, in accor-[p
23]dance with Article 14, paragraph 1, of the Convention, falls to be
decided by the Court..
*
34. Libya, in the latest version of its submissions, finally asks the Court
to find that
"the United Kingdom is under a legal obligation to respect Libya's right not
to have the [Montreal] Convention set aside by means which would in any case
be at variance with the principles of the United Nations Charter and with
the mandatory rules of general international law prohibiting the use of
force and the violation of the sovereignty, territorial integrity, sovereign
equality and political independence of States."
35. The United Kingdom maintains that it is not for the Court, on the basis
of Article 14, paragraph 1, of the Montreal Convention, to decide on the
lawfulness of actions which are in any event in conformity with
international law, and which were instituted by the Respondent to secure the
surrender of the two alleged offenders. It concludes from this that the
Court lacks jurisdiction over the submissions presented on this point by
Libya.
36. The Court cannot uphold the line of argument thus formulated. Indeed, it
is for the Court to decide, on the basis of Article 14, paragraph 1, of the
Montreal Convention, on the lawfulness of the actions criticized by Libya,
in so far as those actions would be at variance with the provisions of the
Montreal Convention.
*
37. In the present case, the United Kingdom has contended, however, that
even if the Montreal Convention did confer on Libya the rights it claims,
they could not be exercised in this case because they were superseded by
Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of
Articles 25 and 103 of the United Nations Charter, have priority over all
rights and obligations arising out of the Montreal Convention. The
Respondent has also argued that, because of the adoption of those
resolutions, the only dispute which existed from that point on was between
Libya and the Security Council; this, clearly, would not be a dispute
falling within the terms of Article 14, paragraph 1, of the Montreal
Convention and thus not one which the Court could entertain.
38. The Court cannot uphold this line of argument. Security Council
resolutions 748 (1992) and 883 (1993) were in fact adopted after the filing
of the Application on 3 March 1992. In accordance with its established
jurisprudence, if the Court had jurisdiction on that date, it continues to
do so; the subsequent coming into existence of the above-mentioned [p 24]
resolutions cannot affect its jurisdiction once established (cf. Nottebohm,
Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122; Right of
Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J.
Reports 1957, p. 142).
**
39. In the light of the foregoing, the Court concludes that the objection to
jurisdiction raised by the United Kingdom on the basis of the alleged
absence of a dispute between the Parties concerning the interpretation or
application of the Montreal Convention must be rejected, and that the Court
has jurisdiction to hear the disputes between Libya and the United Kingdom
as to the interpretation or application of the provisions of that
Convention.
***
40. The Court will now proceed to consider the objection of the United
Kingdom that the Libyan Application is not admissible.
41. The principal argument of the United Kingdom in this context is that
"what Libya claims to be the issue or issues in dispute between it and the
United Kingdom are now regulated by decisions of the Security Council, taken
under Chapter VII of the Charter of the United Nations, which are binding on
both Parties and that (if there is any conflict between what the resolutions
require and rights or obligations alleged to arise under the Montreal
Convention) the resolutions have overriding effect in accordance with
Article 103 of the Charter".
In this connection, the United Kingdom explains that
"resolutions 748 and 883 are legally binding and they create legal
obligations for Libya and the United Kingdom which are determinative of any
dispute over which the Court might have jurisdiction".
According to the United Kingdom, those resolutions require the surrender of
the two suspects by Libya to the United Kingdom or the United States for
trial, and this determination by the Security Council is binding on Libya
irrespective of any rights it may have under the Montreal Convention. On
this basis, the United Kingdom maintains that
"the relief which Libya seeks from the Court under the Montreal Convention
is not open to it, and that the Court should therefore exercise its power to
declare the Libyan Application inadmissible".
The United Kingdom also argues that, should the Court be minded to consider
the questions raised by Libya on the Montreal Convention without regard to
the effect of the Security Council resolutions, it would find itself in the
position of having to proceed to a consideration of the merits of those
matters; if the Court were then to rule in favour of the position advanced
by Libya, it would presumably pronounce judgment on that basis, although
such a judgment would be neither applicable nor enforceable in view of prior
decisions of the Security Council which remain in force.
The United Kingdom also adds that the terms of the resolutions concerned, as
well as the relevant provisions of the Charter, have been fully argued
before the Court. The Court would therefore need no further material
deriving from argument on the merits to enable it to interpret the decisions
of the Security Council or determine their effects.
42. For its part, Libya argues that it is clear from the actual terms of
resolutions 731 (1992), 748 (1992) and 883 (1993) that the Security Council
has never required it to surrender its nationals to the United Kingdom or
the United States; it stated at the hearing that this remained "Libya's
principal argument". It added that the Court must interpret those
resolutions "in accordance with the Charter, which determined their
validity" and that the Charter prohibited the Council from requiring Libya
to hand over its nationals to the United Kingdom or the United States. Libya
concludes that its Application is admissible "as the Court can usefully rule
on the interpretation and application of the Montreal Convention . . .
independently of the legal effects of resolutions 748 (1992) and 883
(1993)".
Libya also observes that the arguments of the United Kingdom based on the
provisions of the Charter raise problems which do not possess an exclusively
preliminary character, but appertain to the merits of the dispute. It argues
in particular that the question of the effect of the Security Council
resolutions is not of an exclusively preliminary character, inasmuch as the
resolutions under consideration are relied upon by the United Kingdom in
order to overcome the application
of the Montreal Convention, and since Libya is justified in disputing that
these resolutions are opposable to it.
43. Libya furthermore draws the Court's attention to the principle that "The
critical date for determining the admissibility of an application is the
date on which it is filed" (Border and Transborder Armed Actions, (Nicaragua
v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports 1988, p. 95,
para. 66). It points out in this connection that its Application was filed
on 3 March 1992; that Security Council resolutions 748 (1992) and 883 (1993)
were adopted on 31 March 1992 and 11 November 1993, respectively; and that
resolution 731 (1992) of 21 January 1992 was not adopted under Chapter VII
of the United Nations Charter and was only a mere recommendation.
Consequently, Libya argues, its Application is admissible in any event.[p
26]
44. In the view of the Court, this last submission of Libya must be upheld.
The date, 3 March 1992, on which Libya filed its Application,is in fact the
only relevant date for determining the admissibility of the Application.
Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into
consideration in this regard since they were adopted at a later date. As to
Security Council resolution 731 (1992), adopted before the filing of the
Application, it could not form a legal impediment to the admissibility of
the latter because it was a mere recommendation without binding effect, as
was recognized moreover by the United Kingdom itself. Consequently, Libya's
Application cannot be held inadmissible on these grounds.
45. In the light of the foregoing, the Court concludes that the objection to
admissibility derived by the United Kingdom from Security Council
resolutions 748 (1992) and 883 (1993) must be rejected, and that Libya's
Application is admissible.
***
46. In dealing with admissibility, the Agent of the United Kingdom also
stated that his Government "ask[ed] the Court to rule that the intervening
resolutions of the Security Council have rendered the Libyan claims without
object".
The Court has already acknowledged, on several occasions in the past, that
events subsequent to the filing of an application may "render an application
without object" (Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p.
95, para. 66) and "therefore the Court is not called upon to give a decision
thereon" (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 272, para. 62) (cf. Northern Cameroons, Judgment, I.C.J. Reports
1963, p. 38).
In the present case, the United Kingdom puts forward an objection aimed at
obtaining from the Court a decision not to proceed to judgment on the
merits, which objection must be examined within the framework of this
jurisprudence.
47. The Court must satisfy itself that such an objection does indeed fall
within the provisions of Article 79 of the Rules, relied upon by the
Respondent. In paragraph 1, this Article refers to "Any objection . . . to
the jurisdiction of the Court or to the admissibility of the application, or
other objection" (emphasis added); its field of application ratione materiae
is thus not limited solely to objections regarding jurisdiction or
admissibility. However, if it is to be covered by Article 79, an objection
must also possess a "preliminary" character. Paragraph 1 of Article 79 of
the Rules of Court characterizes as "preliminary" an objection "the decision
upon which is requested before any further proceedings". There can be no
doubt that the objection envisaged here formally meets this condition. The
Court would also indicate that, in this instance, the Respondent is
advancing the argument that no recourse may [p 27] be had by way of
contentious proceedings before the Court in respect of decisions of the
Security Council, even where such decisions ruled on rights which the
Applicant claims to derive from a treaty text, or at least directly affected
those rights; and that the Respondent thus aims to preclude at the outset
any consideration by the Court of the claims submitted by the Applicant and
immediately terminate the proceedings brought by it. In so far as the
purpose of the objection raised by the United Kingdom that there is no
ground for proceeding to judgment on the merits is, effectively, to prevent,
in limine, any consideration of the case on the merits, so that its "effect
[would] be, if the objection is upheld, to interrupt further proceedings in
the case", and "it [would] therefore be appropriate for the Court to deal
with [it] before enquiring into the merits" (Panevezys-Saldutiskis Railway,
Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16), this objection
possesses a preliminary character and does indeed fall within the provisions
of Article 79 of the Rules of Court.
Moreover, it is incontrovertible that the objection concerned was submitted
in writing within the time-limit fixed for the filing of the
Counter-Memorial, and was thus submitted in accordance with the formal
conditions laid down in Article 79.
48. Libya does not dispute any of these points. It does not contend that the
objection derived by the United Kingdom from Security Council resolutions
748 (1992) and 883 (1993) is an objection on the merits, which does not fall
within the provisions of Article 79 of the Rules of Court, nor does it claim
that the objection was not properly submitted. What Libya contends is that
this objection falls within the category of those which paragraph 7 of
Article 79 of the Rules of Court characterizes as objections "not
possess[ing], in the circumstances of the case, an exclusively preliminary
character" (see paragraph 42 above).
On the contrary, the United Kingdom considers that the objection concerned
possesses an "exclusively preliminary character" within the meaning of that
provision; and, at the hearing, its Agent insisted on the need for the Court
to avoid any proceedings on the merits, which to his mind were not only
"likely to be lengthy and costly" but also, by virtue of the difficulty that
"the handling of evidentiary material . . . might raise serious problems".
Thus it is on the question of the "exclusively" or "non-exclusively"
preliminary character of the objection here considered that the Parties are
divided and on which the Court must now make a determination.
49. The present wording of Article 79, paragraph 7, of the Rules of Court
was adopted by the Court in 1972. The Court has had occasion to examine its
precise scope and significance in the Judgments it delivered in the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), on 26 November 1984 (Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1984, pp. 425-426) and on 26
June 1986 (Merits, Judgment, I.C.J. Reports 1986, pp. 29-31), respectively.
As the Court pointed out in the second of those Judgments, [p 28]
"Under the Rules of Court dating back to 1936 (which on this point reflected
still earlier practice), the Court had the power to join an objection to the
merits 'whenever the interests of the good administration of justice require
it' (Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56),
and in particular where the Court, if it were to decide on the objection,
'would run the risk of adjudicating on questions which appertain to the
merits of the case or of prejudging their solution" (ibid.) (I.C.J. Reports
1986, pp. 29-30, para. 39).
However, the exercise of that power carried a risk,
"namely that the Court would ultimately decide the case on the preliminary
objection, after requiring the parties to fully plead the merits -- and this
did in fact occur (Barcelona Traction, Light and Power Company, Limited,
Second Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some
quarters as an unnecessary prolongation of an expensive and time-consuming
procedure" (ibid. p. 30, para. 39).
The Court was then faced with the following choice:
"to revise the Rules so as to exclude for the future the possibility of
joinder to the merits, so that every objection would have to be resolved at
the preliminary stage, or to seek a solution which would be more flexible"
(ibid., p. 30, para. 40).
The solution adopted in 1972 was ultimately not to exclude the power to
examine a preliminary objection in the merits phase, but to limit the
exercise of that power, by laying down the conditions more strictly. The
Court concluded, in relation to the new provision thus adopted:
"It thus presents one clear advantage: that it qualifies certain objections
as preliminary, making it clear that when they are exclusively of that
character they will have to be decided upon immediately, but if they are
not, especially when the character of the objections is not exclusively
preliminary because they contain both preliminary aspects and other aspects
relating to the merits, they will have to be dealt with at the stage of the
merits. This approach also tends to discourage the unnecessary prolongation
of proceedings at the jurisdictional stage." (Ibid., p. 31, para. 41.)
50. The Court must therefore ascertain whether, in the present case, the
United Kingdom's objection based on the Security Council decisions contains
"both preliminary aspects and other aspects relating to the merits" or not.
That objection relates to many aspects of the dispute. By maintaining that
Security Council resolutions 748 (1992) and 883 (1993) have rendered the
Libyan claims without object, the United Kingdom seeks to obtain from the
Court a decision not to proceed to judgment on the [p 29] merits, which
would immediately terminate the proceedings. However, by requesting such a
decision, the United Kingdom is requesting, in reality, at least two others
which the decision not to proceed to judgment on the merits would
necessarily postulate: on the one hand a decision establishing that the
rights claimed by Libya under the Montreal Convention are incompatible with
its obligations under the Security Council resolutions; and, on the other
hand, a decision that those obligations prevail over those rights by virtue
of Articles 25 and 103 of the Charter.
The Court therefore has no doubt that Libya's rights on the merits would not
only be affected by a decision, at this stage of the proceedings, not to
proceed to judgment on the merits, but would constitute, in many respects,
the very subject-matter of that decision. The objection raised by the United
Kingdom on that point has the character of a defence on the merits. In the
view of the Court, this objection does much more than "touch[ing] upon
subjects belonging to the merits of the case" (Certain German Interests in
Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series
A, No. 6, p. 15); it is "inextricably interwoven" with the merits (Barcelona
Traction, Light and Power Company, Limited Preliminary Objections, Judgment,
I.C.J. Reports 1964, p. 46).
The Court notes furthermore that the United Kingdom itself broached many
substantive problems in its written and oral pleadings in this phase, and
pointed out that those problems had been the subject of exhaustive exchanges
before the Court; the United Kingdom Government thus implicitly acknowledged
that the objection raised and the merits of the case were "closely
interconnected" (Barcelona Traction, Light and Power Company, Limited,
Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 46, and the
reference to Pajzs, Csaky, Esterhazy, Order of 23 May 1936, P.C.I.J., Series
A/B, No. 66, p. 9).
If the Court were to rule on that objection, it would therefore inevitably
be ruling on the merits; in relying on the provisions of Article 79 of the
Rules of Court, the Respondent has set in motion a procedure the precise aim
of which is to prevent the Court from so doing.
The Court concludes from the foregoing that the objection of the United
Kingdom according to which the Libyan claims have been rendered without
object does not have "an exclusively preliminary character" within the
meaning of that Article.
51. Having established its jurisdiction and concluded that the Application
is admissible, the Court will be able to consider this objection when it
reaches the merits of the case.
***
52. In accordance with Article 79, paragraph 7, of the Rules of Court,
time-limits for the further proceedings shall be fixed subsequently by the
Court.
***[p 30]
53. For these reasons:
THE COURT,
(a) By thirteen votes to three,
Rejects the objection to jurisdiction raised by the United Kingdom on the
basis of the alleged absence of a dispute between the Parties concerning the
interpretation or application of the Montreal Convention of 23 September
1971;
IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;
AGAINST: President Schwebel; Judge Oda; Judge ad hoc Sir Robert Jennings;
(b) By thirteen votes to three,
Finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of
the Montreal Convention of 23 September 1971, to hear the disputes between
Libya and the United Kingdom as to the interpretation or application of the
provisions of that Convention;
IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;
AGAINST: President Schwebel; Judge Oda; Judge ad hoc Sir Robert Jennings;
(2) (a) By twelve votes to four,
Rejects the objection to admissibility derived by the United Kingdom from
Security Council resolutions 748 (1992) and 883 (1993);
IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;
AGAINST: President Schwebel; Judges Oda, Herczegh; Judge ad hoc Sir Robert
Jennings;
(b) By twelve votes to four,
Finds that the Application filed by Libya on 3 March 1992 is admissible.
IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;
AGAINST: President Schwebel; Judges Oda, Herczegh; Judge ad hoc Sir Robert
Jennings;
[p 31]
(3) By ten votes to six, declares that the objection raised by the United
Kingdom according to which Security Council resolutions 748 (1992) and 883
(1993) have rendered the claims of Libya without object does not, in the
circumstances of the case, have an exclusively preliminary character.
IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge
ad hoc El-Kosheri;
AGAINST: President Schwebel; Judges Oda, Guillaume, Herczegh, Fleischhauer;
Judge ad hoc Sir Robert Jennings.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-seventh day of February, one thousand
nine hundred and ninety-eight, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government of
the Great Arab Libyan Jamahiriya and the Government of the United Kingdom of
Great Britain and Northern Ireland, respectively.
(Signed) Christopher G. WEERAMANTRY
Vice-President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
Judges BEDJAOUI, GUILLAUME and RANJEVA append a joint declaration to the
Judgment of the Court; Judges BEDJAOUI, RANJEVA and KOROMA append a joint
declaration to the Judgment of the Court; Judges GUILLAUME and FLEISCHHAUER
append a joint declaration to the Judgment of the Court; Judge HERCZEGH
appends a declaration to the Judgment of the Court.
Judges KOOIJMANS and REZEK append separate opinions to the Judgment of the
Court.
President SCHWEBEL, Judge ODA and Judge ad hoc Sir Robert JENNINGS append
dissenting opinions to the Judgment of the Court
(Initialled) C.G.W.
(Initialled) E.V.O.
[p 32]
JOINT DECLARATION OF JUDGES BEDJAOUI, GUILLAUME AND RANJEVA
[ Translation ]
Article 31, paragraph 5, of the Statute — United Kingdom and United States
parties in the same interest — United Kingdom not being entitled to choose a
judge ad hoc.
1. The question arose in this case as to whether or not the United Kingdom
was entitled to choose a judge ad hoc in the present phase of proceedings
relating to the jurisdiction of the Court and the admissibility of the
Libyan Application. The Court answered this question in the affirmative. It
nevertheless did not see fit to state reasons for its decision, merely
recalling it in paragraph 9 of the Judgment. This unexplained decision
appears to us to be inexplicable and we therefore feel it our duty to
explain at this point just why we were unable to endorse it.
The Issue and the Solution Adopted by the Court
2. At present the Members of the Court include President Stephen M.
Schwebel, who is of United States nationality, and Judge Rosalyn Hig-gins,
who is of British nationality. Under Article 31, paragraph 5, of the Statute
of the Court, each had the right to sit in both cases, Libya v. United
States, and Libya v. United Kingdom.
However, Article 32 of the Rules of Court states: "If the President of the
Court is a national of one of the parties in a case he shall not exercise
the functions of the presidency in respect of that case." President Schwebel
was thus required to surrender the presidency of the Court to the
Vice-President in the case of Libya v. United States. In the circumstances,
he also decided to relinquish the presidency in the Libya v. United Kingdom
case. The decision mirrored that taken in comparable circumstances by Sir
Robert Jennings, the then President, when the Court considered Libya's
request for the indication of provisional measures in 1992FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Order of 14 April 1992, I.C.J. Reports 1992, pp. 3 and 114.
---------------------------------------------------------------------------------------------------------------------
Judge Rosalyn Higgins moreover informed the Court that, having acted as
counsel for the United Kingdom during the early phases of the case of Libya
v. United Kingdom, she could not take part in the proceedings. In view of
the circumstances in which the Memorials of the Parties
[p 33] had been prepared, Judge Higgins also felt that she must ask to be
excused in the case of Libya v. United States.
Her decision, like that of President Schwebel, reflected laudable scruples.
Nonetheless it was to raise awkward issues of procedure.
3. On 5 March 1997, the United Kingdom notified the Court that it had been
informed of Judge Higgins's decision and that, pursuant to Article 31 of the
Statute of the Court and Article 37 of the Rules of Court, it had chosen Sir
Robert Jennings, K.C.M.G., Q.C., former President of the Court, to sit as
judge ad hoc in the forthcoming oral proceedings in the case of Libya v.
United Kingdom.
4. The choice seemed on the face of it to be in conformity with Article 31,
paragraph 3, of the Statute of the Court, under which: "If the Court
includes upon the Bench no judge of the nationality of the parties, each of
these parties may proceed to choose" a judge ad hoc.
Nonetheless it raised a difficulty with regard to paragraph 5 of the same
Article, which states:
"Should there be several parties in the same interest, they shall, for the
purpose of the preceding provisions, be reckoned as one party only. Any
doubt upon this point shall be settled by the deci-sion of the Court."
5. Articles 36 and 37 of the Rules of Court determine the applicability of
Article 31 of the Statute. Article 37, paragraph 1, provides that:
"If a Member of the Court having the nationality of one of the parties is or
becomes unable to sit in any phase of a case, that party shall thereupon
become entitled to choose a judge ad hoc within a time-limit to be fixed by
the Court, or by the President if the Court is not sitting."
Paragraph 2 then adds that:
"Parties in the same interest shall be deemed not to have a judge of one of
their nationalities upon the Bench if the Member of the Court having one of
their nationalities is or becomes unable to sit in any phase of the case."
6. The question therefore arose whether the United Kingdom and the United
States were to be regarded as "parties in the same interest" against Libya,
at least in the current phase of proceedings. If they were not, the United
Kingdom was entitled to choose a judge ad hoc in the case between itself and
Libya (but not in the case involving the United States). If they were, the
United Kingdom could not choose a judge ad hoc since the Court already had
on the Bench, in both cases, a judge ad hoc chosen by Libya and a judge
having the nationality of the United States, a country which was a party in
the same interest with the United Kingdom. [p 34]
7. The Court appears to have long hesitated over the solution. First, the
Registry followed its usual practice by transmitting the United Kingdom's
letter to the Agent of Libya, who was invited to submit any relevant
observations by 7 April 1997. The Court received no comment from Libya
within that time-limit.
The Court then instructed the Registry to inform the three States concerned
that it was also ready to receive from them, by 30 June at the latest, any
observations they might wish to make in respect of Article 31, paragraph 5,
of the Statute. The United Kingdom filed a Memorial setting forth the
reasons why, in its opinion, there were no parties in the same interest in
the case. The United States took the same view. In an extremely short
letter, Libya took the opposite view. On 16 September 1997 the Court
informed the Parties of its decision. Over six months thus elapsed between
the choice made by the United Kingdom and the decision of the Court.
Jurisprudence on Parties in the Same Interest
8. This decision seems on the face of it to conflict with the jurisprudence
on parties in the same interest of both the Permanent Court of International
Justice and the International Court of Justice; which precedents must be
looked into before we consider the facts in this case.
9. This jurisprudence emerged in the initial years of the Permanent Court.
In the case concerning Territorial Jurisdiction of the International
Commission of the River Oder, the British, Czechoslovak, French, German and
Swedish Governments which were in the same interest with Denmark against
Poland did not have a judge of their nationality on the Bench. They were
nevertheless not called upon to choose one, a Danish Judge sitting opposite
the Polish JudgeFN2.
---------------------------------------------------------------------------------------------------------------------
FN2
Judgment No. 16 of 10 September 1929, P.C.I.J., Series A, No. 23, p. 5.
--------------------------------------------------------------------------------------------------------------------
In the advisory proceedings on the Customs Regime between Germany and
Austria, having heard the Parties in advance of any discussion of the
merits, the Court held that the German and Austrian Governments on the one
hand, and the Czechoslovak, French and Italian Governments on the other,
were respectively parties in the same interest. Furthermore, the Court noted
that it included upon the Bench judges of French, German and Italian
nationality. It deduced "that there is no ground in the present case for the
appointment of judges ad hoc either by Austria or by Czechoslovakia".
That was when the Permanent Court first identified the criterion for
determining whether States were in the same interest. Hesitation was
legitimate since the English text of the Statute referred to "parties in the
same interest", whereas the French version spoke of parties which "font
cause commune". Clearly, the English was broader in scope and would [p 35]
have excluded the choice of judges ad hoc in more cases. The Permanent
Court, however, abided by the French text and held that the provision
concerned was applicable only if the States concerned were in a situation of
"litis consortium"FN3. In its Order of 20 July 1931, it noted that "all
Governments which, in the proceedings before the Court, come to the same
conclusion, must be held to be in the same interest for the purposes of the
present case"FN4. It then held that "the arguments advanced by the German
and Austrian Governments lead to the same conclusion" whereas the arguments
of the other three Governments "lead to the opposite conclusion"FN5. It
concluded that on either side the Governments in question were in the same
interest.
---------------------------------------------------------------------------------------------------------------------
FN3
See Statut et Règlement de la Cour permanente de Justice internationale —
Elements d'interpretation, 1934, p. 190. See also Hudson, The Permanent
Court of International Justice, p. 334, note 73.
FN4 Order of 20 My 1931, P.C.I.J., Series A, No. 41, p. 89.
FN5 Ibid., p. 90.
---------------------------------------------------------------------------------------------------------------------
10. The International Court of Justice, for its part, encountered this
problem for the first time in the South West Africa cases in regard to
Applications filed respectively by Ethiopia and Liberia against South
Africa. Neither State had a judge of its own nationality on the Bench and,
in advance of the filing of the Memorials, they both stated their intention
of choosing a judge ad hoc. South Africa did likewise.
The Court waited until the Memorials had been filed before giving its
decision, by an Order of 20 May 1961. In the grounds for that Order, the
Court first and foremost echoed the decisions of the Permanent Court,
stating that "all Governments which, in proceedings before the Court, come
to the same conclusion, must be held to be in the same interest". In so
doing, it laid down a general principle without restricting the solution
chosen to that particular case.
The Court then found that the submissions contained in the applications and
the Memorials were mutatis mutandis identical and that "the text [of the
applications and Memorials] themselves are, excepting in a few minor
respects, identical". It therefore deduced that Liberia and Ethiopia were
"in the same interest" before the Court and were "therefore, so far as the
choice of a judge ad hoc is concerned, to be reckoned as one party only"FN6.
---------------------------------------------------------------------------------------------------------------------
FN6
South West Africa, Order of 20 May 1961, I.C.J. Reports 1961, p. 14.
---------------------------------------------------------------------------------------------------------------------
For those various reasons, the Court joined the two proceedings, found that
the Governments of Ethiopia and Liberia were in the same interest and fixed
a time-limit of slightly less than six months for them, acting in concert,
to choose a single judge ad hoc. South Africa for its part, had chosen such
a judge, thus preserving the balance between the applicants and the
respondent.
[p 36]
11. The issue arose a little differently in the North Sea Continental Shelf
case. The Federal Republic of Germany signed two separate Special
Agreements, one with Denmark and the other with the Netherlands.
Furthermore, on the same date the three Governments concluded between
themselves a protocol in which they agreed to request the Court to join the
two proceedings, adding:
"The three Governments agree that for the purpose of appointing a judge ad
hoc the Governments of the Kingdom of Denmark and the Kingdom of the
Netherlands shall be considered to be parties in the same interest within
the meaning of Article 31, paragraph 5, of the Statute of the Court."FN7
------------------------------------------------------------------------------------------------------------
FN7
North Sea Continental Shelf. Order of 26 April 1968, I.C.J. Reports 1968, p.
10.
------------------------------------------------------------------------------------------------------------
Within the time-limit fixed for the filing of the Counter-Memorials, Denmark
and the Netherlands notified the Court, in separate letters, that they had
each chosen Mr. S0rensen as a judge ad hoc. After the filing of the
Counter-Memorials, but before the Parties had requested the joinder of the
proceedings in accordance with the Protocol, the Court delivered its
decision by an Order of 28 April 1968. In that Order it recalled the
circumstances in which Denmark and the Netherlands had chosen a judge ad
hoc, together with the arrangements approved by the Parties. It also,
however, expressed the wish to ascertain for itself on the basis of the
written pleadings whether the two Governments were indeed in the same
interest, and found that
"the Counter-Memorials submitted by the Governments of Denmark and the
Netherlands confirm that the two Governments consider themselves to be
parties in the same interest since they have set out their submissions in
almost identical terms".
The Court then concluded that the two Governments "are, so far as the choice
of a Judge ad hoc is concerned, to be reckoned as one Party only"FN8.
---------------------------------------------------------------------------------------------------------------------
FN8
Ibid.
---------------------------------------------------------------------------------------------------------------------
The Judgment thus confirms the criterion previously established for
determining whether two States are parties in the same interest: their
submissions alone are determinative in this respect. The Judgment also
establishes, however, that it is for the Court — not the parties — to take
the necessary decision. In that case the two Governments had chosen the same
person to sit as a judge ad hoc. The Court might merely have decided to
record the fact. It chose instead to determine whether or not they were
parties in the same interest. But, here again, it did not just go by what
the parties asserted; it verified the position in the light of the
submissions of both States.
12. The jurisprudence of the Court, thus reaffirmed and elaborated, [p 37]
had further occasion to be applied in the Fisheries Jurisdiction cases. Two
Applications were successively filed against Iceland, by the United Kingdom
on 14 April 1972 and by the Federal Republic of Germany on 5 June 1972. By
parallel Orders of 17 August 1972 the Court indicated certain provisional
measures and fixed the following day as the time-limit for the production of
Memorials on jurisdiction.
A British judge was sitting in the case, but neither Iceland nor Germany
had a judge of its nationality. As early as 21 July 1972 Germany notified
the Court of its intention to choose a judge ad hoc and, on 31 October,
chose Mr. Mosler. Since the Icelandic Government did not react, the
Registrar so informed the Agent of Germany and transmitted the case file to
Judge Mosler.
However, shortly before the hearings on the Court's jurisdiction in the two
cases were to open, the Court had doubts about its composition, and on 4
January 1973 the Registrar addressed to the Agents a letter in which the
Court,
"after deliberating on the question, is unable to find that the appointment
of a judge ad hoc by the Federal Republic of Germany in this phase of the
case would be admissible. This decision affects only the present phase of
the proceedings, that is to say that concerning the jurisdiction of the
Court, and does not in any way prejudice the question whether, if the Court
finds that it has jurisdiction, a judge ad hoc might be chosen to sit in the
subsequent stages of the case."FN9
------------------------------------------------------------------------------------------------------------
FN9
I.C.J. Pleadings, Fisheries Jurisdiction, Vol. II, p. 421.
------------------------------------------------------------------------------------------------------------
The decision was confirmed by the President in the same terms at the opening
of the hearingsFN10.
---------------------------------------------------------------------------------------------------------------------
FN10
Ibid., p. 120.
---------------------------------------------------------------------------------------------------------------------
It was amplified in the Judgment of 2 February 1973 on the jurisdiction of
the Court in the Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland) case, with the statement that:
"However, the Court, taking into account the proceedings instituted against
Iceland by the United Kingdom. . . and the composition of the Court in this
case, which includes a judge of United Kingdom nationality, decided by eight
votes to five that there was in the present phase, concerning the
jurisdiction of the Court, a common interest in the sense of Article 31,
paragraph 5, of the Statute which justified the refusal of the request of
the Federal Republic of Germany for the appointment of a judge ad hoc."FN11
------------------------------------------------------------------------------------------------------------
FN11
Judgment of 2 February 1973, I.C.J. Reports 1973, p. 51, para. 7.
------------------------------------------------------------------------------------------------------------
Iceland, for its part, had nevertheless not appointed a judge ad hoc. When
the merits phase began, Germany notified the Court that, while [p 38]
maintaining its right to make such an appointment, it would not insist on
appointing its own judge "as long as this situation persists"FN12.
---------------------------------------------------------------------------------------------------------------------
FN12
I.C.J. Pleadings, Fisheries Jurisdiction, Vol. II, p. 457.
---------------------------------------------------------------------------------------------------------------------
The solution chosen in the jurisdiction phase nevertheless confirmed
previous jurisprudence under which two States were in the same interest when
they presented the same submissions, whatever the supporting line of
argument. In that particular case the United Kingdom and the Federal
Republic of Germany contended that the Court had jurisdiction to hear their
case. However, they did so on different grounds with regard to jurisdiction
ratione personae. The Federal Republic of Germany was in fact in a different
situation from that of the United Kingdom. It was not a Member of the United
Nations and was not party to the Statute. Therefore it did not invoke a
declaration of compulsory jurisdiction deposited under Article 36, paragraph
2, of the Statute (as did the United Kingdom), but instead relied upon a
declaration of 29 October 1971 that it accepted the jurisdiction of the
Court under Article 35, paragraph 2, of the Statute and under Security
Council resolution 9 (1946) of 15 October 1946. Yet Iceland had denied that
the declaration could cover proceedings ratione temporisFN13.
---------------------------------------------------------------------------------------------------------------------
FN13
Ibid., p. 94; see also Judgment of 2 February 1973, I.C.J. Reports 1973, pp.
54 and 55.
---------------------------------------------------------------------------------------------------------------------
Nonetheless the Court held that the difference in situation between the
United Kingdom and Germany was of little importance. What mattered was that
both States held the Court to have jurisdiction. That identity of submission
implied that the Parties were in the same interest.
Although on the latter point the Judgment merely provides manifest
confirmation of previous decisions, it must be noted that such
jurisprudence thus had occasion to be applied in a new procedural
configuration. In the case concerning the Customs Regime between Germany and
Austria, referred to the Permanent Court, the intervening States put
forward their points of view in single proceedings for an advisory opinion.
In the South West Africa and North Sea Continental Shelf cases the
Applicants had brought two separate Applications but in both cases the
Interna-tional Court of Justice joined the Applications and delivered a
single Judgment.
By contrast, in the Fisheries Jurisdiction cases, the Court did not
pronounce a similar joinder and delivered two separate series of Judgments,
on jurisdiction and on the merits. However, this did not prevent it from
considering that the United Kingdom and Germany were "in the same interest"
in the first phase of proceedings. Thus for two States to be "in the same
interest" they indeed have to present the same submissions to the Court,
whether in a single application or in two separate applications, and whether
or not the latter are joined. This procedural detail is of little
importance.[p 39]
13. All in all, the jurisprudence of the Permanent Court and that of the
International Court of Justice look perfectly coherent:
(a) Governments which, before the Court, present the same submissions must
be regarded as being in the same interest. The arguments advanced by the
parties are not very important in this respect, the submissions alone being
determinative (settled jurisprudence);
(b) when objections to jurisdiction and admissibility are submitted in
limine litis, in the initial phase of proceedings the attitude of the
parties to these objections must be evaluated. Thus if the parties submit
that the Court has jurisdiction, they must be regarded as being in the same
interest (Fisheries Jurisdiction cases);
(c) It is for the Court to decide independently of the attitude of the
parties {North Sea Continental Shelf case);
(d) This solution applies whether.the applications are joined {South West
Africa and North Sea Continental Shelf cases) or remain separate {Fisheries
Jurisdiction cases).
The Circumstances of the Case
14. In the current phase of this case the United Kingdom and the United
States present the same arguments on two different levels. Firstly, they
contend in almost identical terms that the dispute brought before the Court
does not concern the application or interpretation of the Montreal
Convention of 23 September 1971 for the Suppression of Unlawful Acts against
the Safety of Civil Aviation and consequently that Article 14 of the
Convention does not give the Court jurisdiction to hear the case. Secondly,
they state that the Security Council approved various resolutions imposing
on Libya an obligation to surrender the suspects, and that these resolutions
adopted under Chapter VII of the Charter are binding on Libya under Article
25 and prevail over any treaty obligation (particularly the Montreal
Convention) under Article 103. They deduce from this that the Libyan
Applications are inadmissible or have become moot.
In its Preliminary Objections, the United Kingdom therefore requests the
Court:
"to adjudge and declare that:
it lacks jurisdiction over the claims brought against the United Kingdom by
the Libyan Arab Jamahiriya
and/or
the claims brought against the United Kingdom by the Libyan Arab Jamahiriya
are inadmissible".[p 40]
As to the United States, it requests "that the Court uphold the objections
of the United States to the jurisdiction of the Court and decline to
entertain the case".
In these circumstances, it was clear that in this phase of the proceedings
the United States and the United Kingdom present the same submissions to
the Court and are therefore in the same interest. Furthermore, such
community of interests throws light on President Schwebel's decision not to
act as President of the Court in either case and Judge Hig-gins's decision
to stand down in both cases. The existence of the same interest is expressed
chiefly in the Judgments delivered by the Court, which are very similar in
their legal reasoning and virtually identical in their operative provisions.
The British request for the appointment of a judge ad hoc ought to have been
rejected in accordance with the settled jurisprudence recalled above.
15. In its written observations, the United Kingdom nonetheless sets out
four arguments against such a solution, which must be considered in turn.
16. It relies first on "the right of a State party to a case before the
Court to have included on the Bench a judge ad hoc in circumstances in which
there is no elected judge of the nationality of that State able to take part
in proceedings". That right is said to be "fundamental".
This argument cannot be upheld. It is true that the Statute of the Court
gives States the right to choose a judge ad hoc, whether the request is
brought before the Court unilaterally or by means of a Special Agreement.
However, this right springs from an even more fundamental principle, which
is that of the equality of parties. Yet in certain situations such equality
may be breached by the very fact of choosing a judge ad hoc. This is so when
one of the States in the same interest with other States already has a judge
on the Bench. In such an event the statutory right to choose a judge ad hoc
loses any foundation and the principle of equality requires that no such
judge be chosen. This is the meaning of Article 31, paragraph 5, of the
Statute and this is the situation in the present case.
17. The United Kingdom secondly contends that Article 31, which uses a form
of wording in the singular, "applies separately to each case on the Court's
List". "In the presence of two separate cases between two sets of parties
(even if one party is common to both cases), Article 31, para-graph 5, has
no application." In this instance, Libya filed two separate Applications
against the United States and the United Kingdom. The text relied upon is
consequently not applicable, so it is claimed, "short of joinder of the
cases".
Yet, according to the United Kingdom, "it has been the consistent practice
of the Court not to order joinder unless the parties to both cases agree".
On account, in particular, of the positions of the Parties, it is argued
that the conditions for joinder are not fulfilled in this case; the two
cases being separate, the Parties cannot be in the same interest.
This argument is far from convincing. It was rejected in the Fisheries [p
41] Jurisdiction cases, in which the Court found that Germany and the United
Kingdom were in the same interest, even though the two States had submitted
separate Applications. Nor is there any foundation for it in the applicable
instruments. Article 31, paragraph 5, of the Statute and Article 36 of the
Rules of Court use neither the singular nor the plural form since there is
no reference to "the case" or to "the cases". Only Article 37 of the Rules
of Court mentions the eventuality in which a Member of the Court is unable
to sit "in any phase of a case". This wording, however, reflects Article 24
of the Statute, which envisages the eventuality that one of the Members of
the Court cannot sit in "a particular case". The wording is easily
explained in that the choice of a judge ad hoc to replace a Member of the
Court who has stood down is conceivable only in the case in which the State
of which that Member is a national is a party. Moreover in the present case
the United Kingdom never requested the appointment of a judge ad hoc in the
proceedings between Libya and the United States, whereas Judge Higgins also
stood down in these proceedings.
Furthermore, the traditional jurisprudence of the Court is founded on the
very principles that underlie these instruments. Accepting that States
cannot be in the same interest unless they are involved in the same
proceedings would, in fact, leave the decision concerning the appointment
of judges ad hoc to the discretion of the applicant(s) and would thus
deprive the Court of its jurisdiction conferred by the Statute and the Rules
of Court.
Under such a system the Court would be unable to declare that several
applicants presenting identical submissions in separate applications are in
the same interest. Nor would it be able to establish that several
respondents presenting identical submissions in cases which were the
subject of separate applications are parties in the same interest. In short,
the applicants) would be in control of the proceedings and one can readily
imagine what advantage they might be tempted to gain from this.
What is more, it is difficult to see why the solution adopted as to whether
or not parties are in the same interest should be different depending on
whether the Court has before it separate applications (as in the Fisheries
Jurisdiction cases or in the present cases) or a single application (as in
the case concerning Monetary Gold Removed from Rome in 1943). Such formalism
would be quite unjustified and at variance with the tradition of the Court,
"whose jurisdiction is international" and which "is not bound to attach to
matters of form the same degree of importance which they might possess in
municipal law"FN14.
---------------------------------------------------------------------------------------------------------------------
FN14
Judgment of 30 August 1924, Mavrommatis Palestine Concessions, P. C.I.J.
Series A, No. 2, p. 34 ; Judgment of 2 December 1963, Northern Cameroons, I.
C.J. Reports 1963, p. 28; Judgment of 26 June 1992, Certain Phosphate Lands
in Nauru (Nauru v. Australia), I.C.J. Reports 1992, p. 265.
---------------------------------------------------------------------------------------------------------------------
18. It could, however, be argued against this line of reasoning that, faced
with separate applications or defences containing identical submis-[p
42]sions, the Court would be able to rectify the situation and avoid any
fraud by deciding the joinder of proceedings and, once joinder is effected,
by finding that the parties are in fact in the same interest.
There is nevertheless a fundamental objection to this solution, namely that
joinder of proceedings and recognition that parties are in the same interest
do not obey the same criteria. The purpose of joining proceedings is to let
the Court rule on two separate applications in a single judgment. Joinder
may be decided upon in cases between the same parties and with the same
subject-matter (as in the case concerning the Legal Status of the
South-Eastern Territory of GreenlandFN15). So may it in cases between the
same parties but with a different subject-matter (as those concerning
Certain German Interests in Polish Upper SilesiaFN16 and Appeals from
Certain Judgments of the HungarolCzechoslovak Mixed Arbitral TribunalFN17).
Furthermore, joinder of separate proceedings instituted by different States
is also possible. It may be effected where the States are parties in the
same interest (as in the South West Africa cases). Yet being parties in the
same interest does not necessarily imply the joinder of proceedings,
particularly if the parties themselves oppose it (as proven by the
Fisheries Jurisdiction cases).
---------------------------------------------------------------------------------------------------------------------
FN15
Judgment of 30 August 1924, Mavrommatis Palestine Concessions, P. C.I.J.
Series A, No. 2, p. 34 ; Judgment of 2 December 1963, Northern Cameroons, I.
C.J. Reports 1963, p. 28; Judgment of 26 June 1992, Certain Phosphate Lands
in Nauru (Nauru v. Australia), I.C.J. Reports 1992, p. 265.
FN16 Judgment No. 7 of 5 February 1926, P.C.I.J., Series A, No. 7, p. 95.
FN17 Order of 12 May 1933, P.C.I. J., Series C, No. 68, p. 290.
---------------------------------------------------------------------------------------------------------------------
The point is that some States may present identical submissions to the Court
while developing different lines of reasoning. In which case they are indeed
parties in the same interest but it would be most inadvisable to effect a
joinder leading to a single judgment that would have to rule separately on
these various arguments. A joinder of proceedings was effected by the Court
in the North Sea Continental Shelf case because:
"the legal arguments presented on behalf of Denmark and the Netherlands have
been substantially identical, apart from certain matters of detail, and have
been presented either in common or in close co-operation"FN18.
------------------------------------------------------------------------------------------------------------
FN18Judgment
of 20 February 1969, I.C.J. Reports 1969, p.19, para.11.
------------------------------------------------------------------------------------------------------------
On the other hand, there was no joinder of issue in the merits phase of the
Fisheries Jurisdiction cases because the Court
"took into account the fact that while the basic legal issues in each case
appeared to be identical, there were differences between the positions of
the two Applicants, and between their respective submissions"FN19.
------------------------------------------------------------------------------------------------------------
FN19Judgment
of 25 July 1974, I.C.J. Reports 1974, p.6, para.8, and p.177, para.8.
------------------------------------------------------------------------------------------------------------
[p 43]
Moreover, the views of the parties do not influence the decision of the
Court in the same way when it comes to determining whether they are parties
in the same interest and when the requirement is to decide whether a joinder
should be effected. In the first eventuality the decision obeys purely
objective criteria and it is for the Court to apply those criteria when
deciding. The agreement of the parties is not enough, as shown by the North
Sea Continental Shelf case, in which the Court determined for itself
whether Denmark and the Netherlands were indeed in the same interest, in
conformity with the Special Agreement.
When it comes to joinder, on the other hand, the Court sets great store by
the wishes of the parties, as shown by the cases concerning the Aerial
Incident of 27 July 1955 (Israel v. Bulgaria) and Nuclear Tests (1973) and
as the Court itself stated in the Fisheries Jurisdiction cases, noting in
support of its decision that "joinder would be contrary" to the "wishes" of
the Applicants.
In such circumstances, the wisdom of the traditional jurisprudence of the
Court becomes plainer. As scholarly opinion has already noted, a joinder of
proceedings and the choice of a judge ad hoc when the parties are considered
to be in the same interest are clearly two different hypotheses not
necessarily coincidingFN20. Two distinct concepts — joinder of proceedings
and parties in the same interest — cannot be confused, and the latter cannot
be made dependent on the former: there are circumstances in which parties
are in the same interest in separate proceedings yet joinder of the
proceedings is not desirable. The Court must nonetheless be able to
determine that the parties are in the same interest.
---------------------------------------------------------------------------------------------------------------------
FN20
G. Guyomar, Commentaire du Règlement de la Cour internationale de Justice,
p. 300.
---------------------------------------------------------------------------------------------------------------------
19. The United Kingdom thirdly states that almost all the cases before the
Court in the past "involved parallel proceedings brought by two Applicants
against a single Respondent". In this case, however, two Respondents face a
single Applicant. The situation is therefore claimed to be very different
and a different solution essential.
It is nevertheless difficult to see why the Statute and the Rules of Court
should be applied differently to respondents and applicants on this point.
The aforementioned texts refer to the parties in general and it is clear
that they may be parties in the same interest both as respondents and as
applicants.
In the initial phase of proceedings, the submissions of applicants in the
same interest necessarily aim to secure recognition for the jurisdiction of
the Court and the admissibility of the application(s) (as in the South West
Africa and Fisheries Jurisdiction cases). In the same initial phase, the
submissions of respondents in the same interest aim to deny the jurisdic-[p
44]tion of the Court and the admissibility of the application(s) (as in the
Lockerbie cases). It is difficult to see why these two scenarios should be
treated differently.
20. Lastly, the United Kingdom states that the arguments which it develops,
starting in this phase of the proceedings, while "compatible" with those
advanced by the United States, "are not identical". Each has developed
"arguments on the factual and legal aspects of its case as it considers
best". On this further ground, it is argued, they are not parties in the
same interest.
This line of reasoning arises from a confusion between the "submissions"
and "arguments" of the parties (which States appearing before the Court all
too often confuse, as the Court explicitly noted in the case concerning
Minquiers and Ecrehos (FrancelUnited Kingdom))FN21.
---------------------------------------------------------------------------------------------------------------------
FN21
Judgment of 17 November 1953, I.C.J. Reports 1953, p. 52.
---------------------------------------------------------------------------------------------------------------------
Two States which advance the same submissions are parties in the same
interest, even if their arguments diverge somewhat. Indeed, in all legal
systems, parties "in the same interest" jointly seek the same result,
presenting submissions to the same endFN22. And it is indeed because they
seek a single end that the framers of the Statute provided for the
appointment of a single judge ad hoc in such cases. It would be all too
easy for two or more States to circumvent this rule by presenting identical
submissions based on a different line of reasoning and so obtain the
appoint-ment of several judges ad hoc. The submissions, and the submissions
alone, must be taken into consideration for the application of Article 31,
paragraph 5, of the Statute.
---------------------------------------------------------------------------------------------------------------------
FN22
Dictionnaire de la terminologie du droit international, pp. 104 and 105.
---------------------------------------------------------------------------------------------------------------------
Furthermore, it is not without interest to note that in the present case the
actual arguments advanced by the United States and the United Kingdom are
extremely similar. In both cases they rest upon a common, restrictive
interpretation of Article 14 of the Montreal Convention and on the impact of
the Security Council resolutions.
Conclusion
21. All in all, in this phase of proceedings the United States and the
United Kingdom have presented the same submissions, on which the Court has
ruled in two Judgments with similar legal reasoning and almost identical
operative parts. They were parties in the same interest and consequently the
United Kingdom was not entitled to choose a judge ad hoc. The Court decided
otherwise, which gave us the pleasure of sitting once more alongside Sir
Robert Jennings and again appreciating [p 45] his eminent qualities. This
does not prevent us, however, from regretting a decision for which no
reasons were stated, which is a first in the history of the Court, and which
appears to us to be contrary to the Statute, to the Rules of Court and to
the jurisprudence of the Court.
(Signed) Mohammed BEDJAOUI.
(Signed) Gilbert GUILLAUME.
(Signed) Raymond RANJEVA.
[p 46]
JOINT DECLARATION OF JUDGES BEDJAOUI, RANJEVA AND KOROMA
[Translation]
We are amongst those who fully endorse both the reasons and the operative
part of the present Judgment.
To characterize as not exclusively preliminary the United Kingdom objection
that the Security Council resolutions rendered the Libyan claims without
object, and to postpone consideration of it to the merits stage, mean in our
view that it is not sufficient to invoke the provisions of Chapter VII of
the Charter so as to bring to an end ipso facto and with immediate effect
all judicial argument on the Security Council's decisions. The Court will
have to decide that point when it reaches the merits of the case.
(Signed) Mohammed BEDJAOUI.
(Signed) Raymond RANJEVA.
(Signed) Abdul G. KOROMA.
[p 47]
JOINT DECLARATION OF JUDGES GUILLAUME AND FLEISCHHAUER
[English Original Text]
Article 79, paragraph 7, of the Rules of Court — Objection of mootness
having an exclusively preliminary character.
Actions of the United Kingdom in order to obtain the surrender of the
suspects — Last substantive submission of Libya directed against these
actions — Jurisdiction of the Court in this respect only to the extent that
the actions in question would be contrary to the Montreal Convention.
We feel prompted to make the following joint declaration with regard to the
Judgment of today's date on the preliminary objections raised by the United
Kingdom in the case concerning questions of interpretation and application
of the 1971 Montreal Convention arising from the aerial incident at
Lockerbie:
I
We voted against the third conclusion in the dispositif that
"the objection raised by the United Kingdom according to which Security
Council resolutions 748 (1992) and 883 (1993) have rendered the claims of
Libya without object does not, in the circumstances of the case, have an
exclusively preliminary character".
We find that that conclusion is wrong and that it sets a potentially
dangerous precedent as it undercuts the object and purpose of Article 79 of
the Rules of Court.
The conclusion is wrong for the following reasons.
This case is about the Montreal Convention. What is in dispute between the
Parties is the applicability of the Convention to the Lockerbie incident
and the observation of the obligations flowing from its provisions in the
aftermath of the incident. The case is not about the Security Council
resolutions 748 (1992) and 883 (1993) which were adopted by the Council on
31 March 1992 and 11 November 1993 respectively, i.e., after Libya had
submitted its Application on 3 March 1992. Libya's substantive submissions
as contained in its Application and its Memorial concern the applicability
of the Montreal Convention and the compliance of the Parties with particular
provisions of that instrument in the handling of the Lockerbie incident.
Were it otherwise, the Court would not have jurisdiction; the only base for
jurisdiction in this matter is Article 14, paragraph 1, of the Montreal
Convention which confers on the Court juris-[p 48]diction over "any dispute
between two or more Contracting States concerning the interpretation or
application" of the Convention.
The United Kingdom as Respondent claims, as a matter of preliminary
objection, "that the intervening resolutions of the Security Council have
rendered the Libyan claims without object" (Judgment, para. 46). The aim of
the objection is to obtain a decision from the Court that there is no ground
for proceeding to judgment on the merits. This is an exclusively
preliminary objection. The Court could — and should — have decided on it
without thereby passing judgment — if only in part — on the merits of
Libya's claims.
Had the Court rejected — in whole or in part — the preliminary objection in
question, then it would now turn — in so far as the preliminary objection
was rejected — to the merits of the Libyan submissions and examine them one
by one within the limits of its jurisdiction. The out-come of that
examination would in no way be predetermined by the previous examination of
and decision on the objection of the United Kingdom.
Had the Court, on the other hand, accepted the objection raised by the
United Kingdom, then the Court would have effectively ended the case. It
would, however, have done so without deciding on the merits of any of the
submissions presented by Libya or predetermining them. The Court would have
left the Montreal Convention completely aside. It would have based its
decision exclusively on a new element, extraneous to the Montreal Convention
and not related to it — the Security Council resolutions. In adopting
resolutions 748 (1992) and 883 (1993), which contain decisions made under
Chapter VII of the Charter and binding under Article 25, the Security
Council has not taken position with regard to the Montreal Convention; in no
way has it decided whether the provisions of the Convention are applicable
to the Lockerbie incident, nor has it decided or taken a position on the
question as to whether the provisions of the Convention have been complied
with by the Parties. Rather, in the exercise of its primary responsibility
for the maintenance of international peace and security, the Council found
it necessary to impose certain obligations on Libya. In accordance with
Article 103 of the Charter, those obligations override all other obligations
of the Parties, irrespective of whether the latter obligations were
contested between the Parties or whether they had been complied with or not.
The lack of connection between the Security Council resolutions and the
position of the Parties under the Montreal Convention precludes the
evaluation of the objection of the United Kingdom as a defence on the
merits; it also prohibits the Court from stating, as it does, that the
objection "does much more than 'touching] upon subjects belonging to the
merits of the case' " (Judgment, para. 50) or that it is " 'inextricably
interwoven' with the merits" (ibid.).
Because this is so, the third conclusion of the dispositif of the Judgment
seems to run counter to the jurisprudence of the Court concerning the
application of Article 79 of the Rules of Court since their 1972 [p 49]
revision. The Court, with one exception (Military and Paramilitary
Activi-ties in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p.
392), has always dealt with preliminary objections in the first phase of the
proceedings and has indeed favoured a restrictive interpretation of the
notion "not exclusively preliminary" in the interest of speedy and
economical disposal of the objections (ibid., Merits, Judgment, I. C.J.
Reports 1986, pp. 29 ff.).
The Judgment seeks to justify its third conclusion by declaring that
accepting the preliminary objection of the United Kingdom would have meant
taking "a decision establishing that the rights claimed by Libya under the
Montreal Convention are incompatible with its obligations under the Security
Council resolutions" (para. 50). It adds that acceptance of the objection
raised by the Respondent would have constituted "a decision that those
obligations prevail over those rights by virtue of Articles 25 and 103 of
the Charter" (ibid.). This might be true, but it is beside the point for the
decision to be taken now on the preliminary objection of the United Kingdom.
Denning the meaning and the effect of the resolutions of the Council and
comparing those resolutions with the submissions of Libya regarding the
Montreal Convention in no way means taking position on the rights and
obligations of Libya under the Convention.
That acceptance of the preliminary objection of the United Kingdom would
have brought the case to an end is also not an argument against its
exclusively preliminary character: the ending of a case is the intention of
every preliminary objection. This is so in the case of objections of the
kind of those dealt with in the third conclusion of the dispositif. The
Court has in the past had occasion to deal with such objections and has
considered them separate from the merits; it dealt with them even before
turning to jurisdiction and admissibility (Nuclear Tests cases (Australia v.
France), Judgment, I.C.J. Reports 1974, pp. 259-272 and (New Zea-landv.
France), Judgment, I.C.J. Reports 1974, pp. 457-478). In this connection it
has also to be pointed out that if the Council terminated, with effect ex
nunc, the measures prescribed by resolutions 748 (1992) and 883 (1993), the
position of the Parties under the Convention would still exist, unchanged.
The third conclusion of the dispositif runs counter to the object and
purpose of Article 79 of the Rules of Court and sets a dangerous precedent
for the future handling of that provision for the following reasons.
When the Court, in 1972, adopted the text which later became Article 79, it
did so for reasons of procedural economy and of sound administration of
justice. Court and parties were called upon to clear away preliminary
questions of jurisdiction and admissibility as well as other preliminary
objections before entering into lengthy and costly proceedings on the
merits of a case. Of course, provision had to be made for [p 50] objections
that did not possess "in the circumstances of the case, an exclusively
preliminary character" (Art. 79, para. 7). In order to make the necessary
determinations the Court, "whenever necessary, may request the parties to
argue all questions of law and fact, and to adduce all evidence, which bear
on the issue" (Art. 79, para. 6). The interpretation given by the Court in
the present case to the notion "not exclusively preliminary character" is,
however, so wide and so vague that the possibility of accepting a
preliminary objection becomes seriously restricted. Thereby the Judgment
acts counter to the procedural economy and the sound administration of
justice which it is the intent of Article 79 to achieve.
II
We would also like to state that we have voted in favour of the first
conclusion of the dispositif on jurisdiction of the Court over the case on
the following understanding relating to the last of the substantive
submissions presented by Libya in its Application and its Memorial:
In the version submitted to the Court in the Libyan Memorial this
submission concerns an alleged legal obligation of the United Kingdom
"to respect Libya's right not to have the [Montreal] Convention set aside by
means which would in any case be at variance with the principles of the
United Nations Charter and with the mandatory rules of general international
law prohibiting the use of force and the violation of the sovereignty,
territorial integrity, sovereign equality and political independence of
States" (Judgment, para. 34).
We recognize that there is a legal dispute between the Parties concerning
this point. That dispute, however, falls under Article 14, paragraph 1, of
the Montreal Convention and therefore within the jurisdiction of the Court
only if, and in so far as, it concerns the interpretation and application
of one or more of the provisions of the Convention. The dispute does not
fall under Article 14, paragraph 1, and the jurisdiction of the Court if it
concerns the interpretation and application of Article 2, paragraph 4, of
the Charter of the United Nations. That is spelled out in paragraph 36 of
the Judgment, but not so explicitly in the dispositif; that is why we wish
to make our position on the matter quite clear.
(Signed) Gilbert GUILLAUME.
(Signed) Carl-August FLEISCHHAUER.
[p 51]
DECLARATION OF JUDGE HERCZEGH
[Translation]
Having voted against paragraphs 1(a) and (b) and 3 of the operative part, I
feel obliged to supply the explanations that follow:
1. I share the conclusion of the Court that there exist disputes between the
Parties concerning the interpretation and application of Article 7 — read
jointly with Article 1, Article 5, paragraphs 2 and 3, Article 6 and Article
8 — and Article 11 of the Montreal Convention, which disputes must be
decided in accordance with Article 14, paragraph 1, of the Montreal
Convention. The Court consequently has jurisdiction to hear these disputes.
2. On the other hand, I am unable to concur with the Court's decision
declaring the Application of Libya to be admissible and dismissing the
objection of the Respondent that Security Council resolutions 748 (1992) and
883 (1993) are determinative for all disputes over which the Court might
have jurisdiction, my reason being that the aforesaid resolutions were
adopted subsequent to the filing of the Application. The Court stated, in
the case concerning Border and Transborder Armed Actions (Nicaragua v.
Honduras), that "[t]he critical date for determining the admissibility of an
application is the date on which it is filed" (I.C.J. Reports 1988, p. 95,
para. 66). However, in the same case and in the same paragraph, the Court
expressed itself as follows:
"It may however be necessary, in order to determine with certainty what the
situation was at the date of filing of the Application, to examine the
events, and in particular the relations between the Parties, over a period
prior to that date, and indeed during the sub-sequent period. Furthermore,
subsequent events may render an application without object, or even take
such a course as to preclude the filing of a later application in similar
terms." (Ibid.)
It emerges from the Court's above reasoning that the date of filing of an
application for determining its admissibility certainly constitutes a very
important factor, but that it must be contemplated in the light of relevant
prior and subsequent events.
Among the events prior to the filing of Libya's Application, special mention
must be made of Security Council resolution 731 (1992) adopted on 21 January
1992. True, that resolution does not specify under which chapter of the
United Nations Charter it was adopted. Having the char-acter of a
recommendation, it does not create legally binding obligations for Members
of the United Nations. It should be taken all the more into [p 52]
consideration, however, given that the two Security Council resolutions 748
(1992) and 883 (1993), adopted this time under Chapter VII of the Charter,
make explicit reference to resolution 731 (1992) and essentially echo its
content.
With regard to events subsequent to the filing of Libya's Application, it
has to be pointed out that it was rendered without object by the two
mandatory Security Council resolutions. The Application ought therefore to
have been dismissed. It will be observed that the Court is ruling on
admissibility several years after the Application has been rendered without
object. To regard that Application today as admissible springs, in my view,
from a formalism quite alien to the jurisprudence of the Court. In the
Northern Cameroons case, the Court stated as follows :
"Whether or not at the moment the Application was filed there was
jurisdiction in the Court to adjudicate upon the dispute submitted to it,
circumstances that have since arisen render any adjudication devoid of
purpose." (I.C.J. Reports 1963, p. 38.)
In the Nuclear Tests (Australia v. France) case, it affirmed that it "sees
no reason to allow the continuance of proceedings which it knows are bound
to be fruitless" (I.C.J. Reports 1974, p. 271, para. 58).
The Court has further concluded that the objection raised by the Respondent
is not an objection to the jurisdiction of the Court or to the admissibility
of the Application, but "another objection" said not to possess an
exclusively preliminary character (cf. Rules of Court, Art. 79, paras. 1 and
7). I regret that I am unable to concur with the Court's line of argument,
which goes like this: by seeking to obtain a decision not to proceed to
judgment on the merits, which would immediately terminate the proceedings,
the Respondent
"is requesting, in reality, at least two others which the decision not to
proceed to judgment on the merits would necessarily postulate : on the one
hand a decision establishing that the rights claimed by Libya under the
Montreal Convention are incompatible with its obligations under the Security
Council resolutions; and, on the other hand, a decision that those
obligations prevail over those rights by virtue of Articles 25 and 103 of
the Charter . . . The objection raised ... on that point has the character
of a defence on the merits." (Paragraph 50 of the Judgment.)
The upholding of a preliminary objection undoubtedly has effects as to
enjoyment of the rights that the Applicant claims to possess in its
relations with the Respondent, without the existence or content of those
rights being questioned. The indirect consequences of upholding an
objection cannot be regarded as determinative of the exclusively
preliminary character or otherwise of such an objection, within the meaning
of Article 79, paragraph 7, of the Rules of Court. In this case, the Court
is not [p 53] required to adjudicate upon the interpretation or application
of Articles 7 and 11 of the Montreal Convention. The question whether the
rights and obligations of the Parties, in the circumstances of the case, are
governed by the United Nations Charter and by resolutions adopted by virtue
of Charter provisions has no effect on the provisions of the Montreal
Convention for the interpretation or application of which the Court has
jurisdiction; the objection consequently possesses an exclusively
preliminary character. There can be no doubt that the obligations of Members
of the United Nations under the Charter — including the obligations that
Security Council decisions create in regard to them — prevail over their
obligations contracted under other international agreements. At the close
of the provisional measures phase, the Court, in its Order of 15 April 1992,
arrived at just such a finding (I.C.J. Reports 1992, p. 15, para. 39).
My conclusions are as follows : the Court has jurisdiction to hear the
disputes existing between the Parties as to the interpretation or
application of the relevant provisions of the Montreal Convention ; the
Libyan claims ought to have been deemed to be governed by the mandatory
resolutions of the Security Council; and the preliminary objection raised
by the Respondent in this respect, and which possesses a purely preliminary
character, ought to have been upheld. Libya's Application, having become
without object, ought therefore to have been dismissed.
(Signed) Geza HERCZEGH.
[p 54]
SEPARATE OPINION OF JUDGE KOOIJMANS
1. I have voted in favour of the operative part of the Judgment since I
concur with the Court's finding that it has jurisdiction to entertain the
claim as submitted by Libya and that this claim is admissible. I also share
the view expressed in the Judgment that a number of the objections
sub-mitted by the Respondent do not have an exclusively preliminary
character. Since, however, the Judgment does not reflect fully my own
considerations I wish to place on record my views on some specific
arguments brought forward by the Parties. I will do so rather succinctly
with regard to the objections to the jurisdiction of the Court and in a
slightly more comprehensive way with regard to the objections to the
admissibility of the claim and to the objection that the Libyan claims have
been rendered without object, or that Libya is precluded from obtaining the
relief it seeks, by the subsequent adoption of Security Council resolutions
748 (1992) and 883 (1993).
I. Jurisdictional Issues
2. It would be a truism to contend that the present case is a politically
highly sensitive one. As the Court has stated many times before, the fact
that a dispute brought before it has serious political overtones does not
act as a bar to the Court's entertaining it, nor does the fact that the
dispute is being dealt with simultaneously by the Security Council.
In the present case the Respondent has gone further than pointing out merely
these elements. It has intimated that Libya has not invoked the Court's
jurisdiction under the Montreal Convention in order to settle a dispute
which has arisen under that Convention but for other — quite unconnected —
reasons. During the hearings held on 13 October 1997 the Agent of the United
Kingdom said:
"what the Applicant is seeking by these proceedings is simply not a Montreal
Convention matter, but a scarcely veiled attempt to frustrate the exercise
by the Security Council of its responsibilities under the United Nations
Charter" (CR 97/16, p. 16).
3. The Respondent not only denies that there exists a dispute with Libya on
the interpretation or application of the Montreal Convention, it also casts
serious doubts on Libya's motives to construe such a dispute; the Court
should not allow itself to be lured into such a politically inspired hoax. I
have chosen the rather extreme wording of this last sen-[p 55]tence on
purpose in order to show how easily the Court can be portrayed as an
instrument used by one of the parties for extrajudicial purposes. And this
risk becomes an acute danger if the impression arises that the Court is used
as a pawn in a game of chess where other principal organs of the United
Nations play a role.
4. Against this background it seems proper and worthwhile to point out once
more what is the function of the Court according to the Charter and its
Statute, which forms an integral part of that Charter. This function was
described in apposite terms by the Court itself in its Judgment of 20
December 1988 in the Border and Transborder Armed Actions case:
"the Court is aware that political aspects may be present in any legal
dispute brought before it. The Court, as a judicial organ, is however only
concerned to establish, first, that the dispute before it is a legal
dispute, in the sense of a dispute capable of being settled by the
application of principles and rules of international law, and secondly,
that the Court has jurisdiction to deal with it, and that that jurisdiction
is not fettered by any circumstance rendering the application inadmissible.
The purpose of recourse to the Court is the peaceful settlement of disputes;
the Court's judgment is a legal pronouncement, and it cannot concern itself
with the political motivation which may lead a state at a particular time,
or in particular circumstances, to choose judicial settlement." (Border and
Trans-border Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 91, para. 52.)
5. Whether the eventual finding of the Court on the merits is compatible
with binding decisions of other United Nations organs, in particular the
Security Council, is quite another matter and in the Court's view must be
considered at a later stage. The first task of the Court after a case is
submitted to it is to consider whether the case concerns a legal dispute and
whether it has jurisdiction to deal with it. As the Court said in the
Nuclear Tests cases: "the existence of a dispute is the primary condition
for the Court to exercise its judicial function". The Court went on to say
that "it is not sufficient for one party to assert that there is a dispute",
nor, it may be added, is it sufficient that the other party denies that
there is a dispute. Referring to what is said in the case concerning
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J.
Reports 1950, p. 74), the Court stated that "whether there exists an
international dispute is a matter for objective determination" by it
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271,
para. 55).
6. If the Court, therefore, is determining the existence or the
nonexistence of a legal dispute, it is carrying out its proper judicial
function.[p 56]
In this respect it is in my view not relevant that the Respondent does not
rely on the Montreal Convention and contends that it has no dispute with
Libya concerning its interpretation or application. It is not in dispute
between the Parties that the facts of the Lockerbie incident as such may be
characterized as an act defined in Article 1 of the Montreal Convention
which would imply that the Convention could be applicable to that incident
and — under normal circumstances — would be applicable. The Respondent has
stated that this does not mean that no other rules of international law are
applicable to these facts and by bringing the situation to the attention of
the Security Council as a potential threat to peace and security resulting
from State involvement in acts of terrorism it has relied on the provisions
of the United Nations Charter. Under such circumstances the Montreal
Convention would not be the only and exclusively applicable instrument as
is contended by the Applicant.
7. The resulting difference of opinion is therefore not an abstract
disagreement about the applicability of the Montreal Convention, it is a
very precise legal dispute about its applicability to the very facts of the
case before the Court. The fact that the Security Council by adopting
resolution 731 (1992) implicitly denied the Convention's applicability to
these facts can in no way detract from the Court's own competence and its
own responsibility to determine whether the dispute as submitted by the
Applicant is a justiciable dispute within the terms of Article 14,
paragraph 1, of the Montreal Convention, the settlement of which is
entrusted to the Court. To conclude otherwise would impair the proper
function of the Court as it is determined in the Charter and the Statute. By
implication the Court has also jurisdiction to entertain the claims by
Libya that the Respondent has not respected Libya's rights under Article 7
of the Convention, respectively its own obligations under Article 11, since
these are the specific claims submitted by the Applicant. Whether the Court
will have to deal with these specific claims will, of course, depend upon
the Court's finding on the preliminary question of the Convention's
applicability in view of the resolutions of the Security Council.
8. The Court's jurisdiction in my view is confined to the issues just
mentioned which are covered by the terms of Article 14, paragraph 1, of the
Montreal Convention, viz., the issues of applicability and compliance or
non-compliance. In particular the ways and means by which this
noncompliance is practised and the question whether these ways and means
are at variance with the Charter of the United Nations and with mandatory
rules of general international law do not come within the Court's
jurisdiction as consensually agreed upon in Article 14, paragraph 1, of the
Convention.
9. I, therefore, fully agree with the Court's finding that it has
jurisdiction to hear the dispute between the Applicant and the Respondent
in [p 57] accordance with Article 14, paragraph 1, of the Montreal
Convention. That I nevertheless have expressed some personal views on the
issue of jurisdiction is because I deem it important to point out that in
this regard the competences of the Security Council and the Court are
separate and clearly distinguishable, and should not be confused, let alone
be seen as potentially conflicting with each other. Just as each State is
entitled to bring a situation to the attention of the Security Council and
the Council is entitled to give its views on that situation and to qualify
it as a threat to international peace and security, so each State is
entitled to submit to the Court a claim against another State with regard to
a dispute which in its opinion is justiciable. It is for the Court and only
for the Court to determine whether it is competent to entertain the claim on
the basis of the relevant legal provisions.
II. Issues of Admissibility and Mootness
10. Whether the Court, once it has assumed jurisdiction, should carry out
its judicial function under all circumstances, is quite a different matter.
The Respondent has submitted that any rights which Libya might have under
the Montreal Convention are in any event superseded by its obligations under
Security Council resolutions 748 (1992) and 883 (1993) which were adopted
after the date of the filing of Libya's Application. Consequently, any
judgment on the merits would be an empty one because it would be neither
applicable nor enforceable.
11. It seems to be a question of minor relevance whether this objection must
be called an objection to the admissibility and consequently must be
rejected since these resolutions were adopted after the date of the filing
of the Application which according to the Judgment is the only relevant date
for determining the admissibility or whether it must be qualified as an
"objection the decision upon which must be determined before any further
proceedings" in the sense of Article 79, paragraph 1, of the Rules of Court.
12. It may be questioned whether it is necessary or even possible to give a
neat categorization of preliminary objections. S. Rosenne says in this
respect:
"All that can be deduced from experience is that it is an individual matter
to be appreciated in the light of all the circumstances of each case." (S.
Rosenne, The Law and Practice of the International Court of Justice,
1920-1996, 1997, p. 883.)
In this respect reference may be made also to the Northern Cameroons case
where the Court, commenting on the various meanings ascribed by the Parties
to, inter alia, the term "admissibility" said: [p 58]
"The Court recognizes that these words in differing contexts may have
various connotations but it does not find it necessary in the present case
to explore the meaning of these terms. For the purposes of the present case,
a factual analysis undertaken in the light of certain guiding principles
may suffice to conduce to the resolution of the issues to which the Court
directs its attention." {Northern Cam-eroons, Judgment, I.C.J. Reports 1963,
p. 28.)
13. Irrespective of the question whether preliminary objections should be
distinguished as to category, this contextual analysis is exactly what the
Court has undertaken in the present Judgment. Taking into account all
circumstances of the case it has come to the conclusion that the objection
that Security Council resolutions 748 (1992) and 883 (1993) have rendered
the Libyan claim without object is an objection which possesses a
preliminary character and falls within the provisions of Article 79 of the
Rules of Court. Nevertheless, the Court has concluded that this objection
does not have an exclusively preliminary character within the meaning of
Article 79, paragraph 7, and, therefore, should be considered at the stage
of the merits.
14. I share this view of the Court. I have, however, the feeling that some
additional remarks would be appropriate in light of the fact that the
Respondent has not denied that this objection may touch upon the merits. It
is of the opinion that the case should nevertheless be terminated at the
present stage as any judgment on the merits would be without practical
effect since the relief sought by Libya cannot be provided by the Court
because of the overriding legal effects of the mandatory resolutions of the
Security Council.
Counsel for the United Kingdom stated that it would not be a proper exercise
of the judicial function if the Court would pronounce a judgment which would
be an empty one because it was neither applicable nor enforceable given the
terms of prior decisions of the Security Council which remained in force (CR
97/16, p. 60).
In this respect reference was made to the Court's finding in the Northern
Cameroons case, where it said:
"The Court's judgment must have some practical consequence in the sense that
it can affect existing legal rights or obligations of the parties, thus
removing uncertainty from their legal relations." (/. C.J. Reports 1963, p.
34.)
15. It seems questionable, however, whether this reference to the Northern
Cameroons case is correct. The Court's reasoning was based on the argument
that a judgment on the merits would not be a judgment capable of effective
application since the decision of the General Assembly (resolution 1608
(XV)) to terminate the Trusteeship over the British Cameroons (which mooted
the case between the United Kingdom and the Republic of Cameroon) was an
administrative measure of a determinative and final character. A finding of
a breach of law by the Court could [p 59] not lead to redress as the General
Assembly was no longer competent with regard to the Territory pursuant to
the termination of the Trusteeship as a result of resolution 1608 (XV) and
consequently no determination reached by the Court could be given effect to
by the former Administering Authority (I.C.J. Reports 1963, p. 35).
16. The Northern Cameroons case makes clear that a decision that a claim no
longer has any object can only be made within a highly concrete context. It
is "the circumstances which have arisen" which bring the Court to the
determination that "it does not enter into the adjudicatory functions of the
Court to deal with issues in abstracto, once it has reached the conclusion
that the merits of the case no longer fall to be determined" (I.C.J. Reports
1974, p. 272).
17. In the present case circumstances are different: there is no
administrative measure of a determinative and final character taken by an
organ of the United Nations. Resolutions of the Security Council taken under
Chapter VII of the Charter may have far-reaching legal effects, but they are
not irrevocable or unalterable. In the exercise of its function the Security
Council is free to confirm, revoke or amend them and consequently they
cannot be called "final" even if during their lifetime they may be
dispositive of the rights and obligations of member States, overriding
rights and obligations these States may have under other treaties. It is
generally agreed that the Security Council has full competence under Chapter
VII to determine that a factual situation constitutes a threat to
international peace and security and that it may take the necessary legally
binding measures to counter that threat, but that it has no competence to
determine the law, whereas it has been questioned whether the Council can
modify the law when applying it to a particular set of facts (see, for
example, Malcolm Shaw, "The Security Council and the International Court of
Justice: Judicial Drift and Judicial Function", in A. S. Muller et al.
(eds.), The International Court of Justice — Its Future Role after Fifty
Years, 1997, pp. 219 ff.).
18. Since Security Council resolutions 748 (1992) and 883 (1993) have
authoritatively but not definitively and for an indefinite period of time
determined the matters at issue, the Court rightly concluded that the
objection by the Respondent that the Libyan claims are without object does
not have "an exclusively preliminary character" and will be considered by
the Court when it reaches the merits of the case. By doing so the Court has
upheld its function as it is defined in Article 38 of the Statute, viz., "to
decide in accordance with international law such disputes as are submitted
to it", at the same time respecting fully the competences which the Security
Council has under the Charter.
19. Distinguishing carefully the proper functions of both Security Council
and Court in my view is essential for what Judge Lachs called "a [p 60]
fruitful interaction" between these two main organs of the United Nations.
These functions are complementary and in that sense can be mutually
supportive.
III. Concluding Remarks
20. One final remark may be made. The Respondent has invoked the concept of
"judicial economy" when advocating a dismissal of the case in the
preliminary phase. It has warned of proceedings on the merits which make it
necessary for the Court to address complex issues of fact and added that the
case should be disposed of at the preliminary phase because the Council
resolutions would have rendered it without object. It cannot be excluded
that this might be the case indeed, although this is by no means certain as
it was in the Northern Cameroons case.
21. Judicial economy however may go to the detriment of judicial propriety
which asks for a careful weighing of the interests of all parties to the
dispute. In this respect it is worthwhile to recall what Judge Read said in
his dissenting opinion in the Anglo-Iranian Oil Co. case:
"It is impossible to overlook the grave injustice which would be done to an
applicant State, by a judgment upholding an objection to the jurisdiction
and refusing to permit adjudication on the merits, and which, at the same
time, decided an important issue of fact or law, forming part of the merits,
against the applicant State. The effect of refusal to permit adjudication of
the dispute would be to remit the applicant and respondent States to other
measures, legal or political, for the settlement of the dispute. Neither the
applicant nor the respondent should be prejudiced, in seeking an alternative
solution of the dispute, by the decision of any issue of fact or law that
pertains to the merits." (I.C.J. Reports 1952, p. 149; emphasis added.)
22. It certainly cannot be foreseen that alternative solutions, for example
on the basis of suggestions made by regional organizations or other
international or national groupings, will be found and at present that may
even seem improbable but neither can it be excluded. The Court should not be
seen as standing in the way of any conciliatory effort.
(Signed) P. H. KOOIJMANS.
[p 61]
SEPARATE OPINION OF JUDGE REZEK [Translation]
1. Since the respondent State, in challenging as it has both the
jurisdiction of the Court and the admissibility of the Application, has
laid emphasis on the binding and paramount nature of Security Council
resolutions 748 (1992) and 883 (1993) in the light of Articles 25 and 103
of the Charter of the United Nations, in my opinion the Judgment, with which
I agree, would more fully convey the lines of argument advanced by the
Parties were it to devote a few comments to the subject of the jurisdiction
of the Court in relation to that of the political organs of the
Organization.
2. Article 103 of the Charter is a rule for settling conflicts between
treaties: above all it postulates a conflict between the Charter of the
United Nations and another treaty obligation. It settles the conflict in the
Charter's favour, regardless of the chronology of the texts. However, it is
not designed to operate to the detriment of customary international law and
even less so to the detriment of the general principles of the law of
nations. Moreover, it is definitely the Charter of the United Nations (not a
Security Council resolution, nor a General Assembly recommendation, nor a
judgment of the International Court of Justice) which benefits from the
primacy established in this norm: it is the Charter with the full
significance of its principles, its system and the division of powers which
it establishes.
3. Furthermore, the Court is the definitive interpreter of the Charter of
the United Nations. It is the Court's responsibility to determine the
meaning of each of its provisions and of the text as a whole, and this
responsibility becomes particularly serious when the Court finds itself
faced with a challenge to decisions taken by one of the Organization's two
principal political organs. Ensuring the primacy of the Charter in its true
and full meaning is one of the most eminent of the tasks which fall to the
Court, and the Court, as of right and out of duty, acts to that end whenever
the occasion arises, even if this may in theory result in criticism of
another organ of the United Nations, or rather in disavowal of that organ's
analysis of the Charter.
At the time of the East Timor case, Judge Skubiszewski had occasion to
recall that:
"The Court is competent, and this is shown by several judgments and advisory
opinions, to interpret and apply the resolutions of the Organization. The
Court is competent to make findings on their lawfulness, in particular
whether they were intra vires. This competence [p 62] follows from its
function as the principal judicial organ of the United Nations. The
decisions of the Organization (in the broad sense which this notion has
under the Charter provisions on voting) are subject to scrutiny by the Court
with regard to their legality, validity and effect. The pronouncements of
the Court on these matters involve the interests of all Member States or at
any rate those which are the addressees of the relevant resolutions. Yet
these pronouncements remain within the limits of Monetary Gold. By
assessing the various United Nations resolutions on East Timor in relation
to the rights and duties of Australia the Court would not be breaking the
rule of the consensual basis of its jurisdiction." (I.C.J. Reports 1995, p.
251.)
In the past, judges as measured as Sir Gerald Fitzmaurice have asserted this
jurisdiction, and in this they were supported by the authority of doctrine.
As Professor Oliver Lissitzyn wrote years ago:
"If the organization is to gain strength, the authority to give binding
interpretations of the Charter, at least in matters directly affecting the
rights and duties of states, must be lodged somewhere, preferably in a
judicial organ. The long-range purposes and policies laid down in the
Charter must be given some protection against the possible short-range
aberrations of the political organs. Power without law is despotism." (O. J.
Lissitzyn, The International Court of Justice, 1951, pp. 96-97.)
The argument that judicial scrutiny of a political organ's interpretation
of the Charter can only take place in the exercise of advisory jurisdiction
is totally without scientific foundation. What is true is only that the
system does not authorize any State either to consult the Court on a
constitutional issue involving the United Nations or to raise such an issue
by means of direct action against the Organization or against an organ such
as the Security Council. However, the constitutional issue — relating, say,
to a case of excès de pouvoir — can perfectly well arise in the context of a
dispute between States. It is quite natural, within such a framework, that
an application should be directed against a State which, for some reason,
has taken it upon itself to execute the Council's act although that act was
challenged from the viewpoint of the Charter or of any rule of general
international law. The respondent in the proceedings, therefore, is not the
legislator but the immediate executor of the law, as is normally the case in
domestic jurisdictions within the framework of a procedure of habeas corpus
and in the context of civil actions for the protection of rights other than
individual freedoms.
4. The Court has full jurisdiction to interpret and apply the law in a [p
63] contentious case, even when the exercise of such jurisdiction might
entail the critical scrutiny of a decision of another organ of the United
Nations. It does not directly represent the States Members of the
Organization (this fact has been stated before the Court and attempts have
been made to infer from it the consequence that the Court is not competent
to undertake a review of resolutions of the Council), but precisely because
it is impermeable to political injunctions the Court is the interpreter par
excellence of the law and the natural forum for reviewing the acts of
political organs in the name of the law, as is the rule in democratic
regimes. It would be surprising indeed if the Security Council of the United
Nations were to enjoy absolute and unchallengeable power in respect of the
rule of law, a privilege not enjoyed, in domestic law, by the political
organs of most of the founding Members and other Members of the
Organization, starting with the respondent State.
It is the States Members of the United Nations, within the General Assembly
and the Security Council, which have the power to legislate, to change if
they so wish the rules that govern the working of the Organization. In the
exercise of their legislative function they may decide, for example, that
the Organization can do without a judicial organ, or that this organ,
contrary to national models, is not the ultimate interpreter of the legal
order of the Organization in matters which touch upon the validity of a
decision of another organ of the system. To my knowledge, they have never
even considered doing so and the Court should not, I think, hold back from
asserting a prerogative it enjoys on the basis of the presumed will of the
United Nations.
(Signed) Francisco REZEK.
[p 64]
DISSENTING OPINION OF PRESIDENT SCHWEBEL
I regret that I am unable to agree with the Judgment of the Court. It is
arguable that the challenge of the Respondent to the jurisdiction of the
Court should not carry. But the reasons so tersely stated by the Court are
conclusory rather than elucidatory, and, at most, are barely persuasive in a
subsidiary respect. In my view, the Court's conclusions on the
admissibility of Libya's Application, and as to whether it has become moot,
are unpersuasive.
Jurisdiction
The question of whether the Court has jurisdiction over a dispute between
the Parties under the Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation depends on the resolution of
antecedent questions. Does the Montreal Convention apply to the facts at
issue in the current case? If it does, do the positions of the Parties in
this case give rise to a dispute under the Convention?
The Preamble to the Convention declares its purpose to be that of
"deterring" unlawful acts against the safety of civil aviation and
providing appropriate measures for punishment of offenders. Article 10
provides that contracting States shall "endeavour to take all practicable
measure for the purpose of preventing the offences mentioned in Article 1".
Article 12 provides that any contracting State having reason to believe one
of the offences mentioned in Article 1 will be committed shall furnish
relevant information to other States concerned. These provisions may be
interpreted to imply that the Convention does not apply to allegations
against persons accused of destroying an aircraft who are claimed, as in the
instant case, to be acting as agents of a contracting State. Or, if that
implication is too extended, those provisions of the Montreal Con-vention
suggest that the Convention would hardly have deterrent effect if the State
accused of having directed the sabotage were the only State competent to
prosecute the persons accused of the act. At the same time, Article 1 of the
Convention capaciously provides that, "Any person" commits an offence under
the Convention if he performs an act thereafter listed. Moreover, Libya has
not accepted that the accused were agents of its Government.
If it be assumed that the Convention does apply to persons allegedly State
agents who are accused of destroying an aircraft, the question then [p 65]
arises whether there is a dispute between Libya and the Respondent under the
Convention.
It is difficult to show, and in its Judgment the Court in my view does not
show (as contrasted with concluding), that the Respondent can be in
violation of provisions of the Montreal Convention, with the possible
exception of Article 11 ; the Court does not show that there is a dispute
between the Parties over such alleged violations. The Convention in the
circumstances of the case imposes multiple obligations on Libya. None of the
articles of the Convention invoked by Libya in the circumstances of this
case imposes obligations on the Respondent (as demonstrated by Sir Robert
Jennings in his dissenting opinion). At most, it might be maintained that
there is a dispute over breach of an obligation under Article 11, which
provides in paragraph 1 that,
"Contracting States shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of the
offences. The law of the State requested shall apply in all cases."
The Respondent, the State requested, has provided Libya with the
indictment, but, in reliance upon the resolutions of the Security Council
and its own law, has not, despite Libyan requests, done more. If in fact
Libya has brought criminal proceedings against the accused, there is
arguable ground for alleging the existence of a dispute under Article 11,
though in truth the dispute is over the force of the Security Council's
resolutions.
The Court principally relies, in upholding jurisdiction, on its unexplicated
conclusion that, in view of the positions of the Parties, there exists
between them a dispute regarding the interpretation and application of
Article 7. Article 7 provides:
"The Contracting State in the territory of which the alleged offender is
found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed on its territory,
to submit the case to its competent authorities for the purpose of
prosecution. Those authorities shall take their decision in the same manner
as in the case of any ordinary offence of a serious nature under the law of
that State."
The Respondent has not disputed Libya's obligation to prosecute the accused
under Article 7 if Libya does not extradite them. It rather maintains that
Libya is obliged by the supervening resolutions of the Security Council to
surrender the accused for trial in the United States or the United Kingdom.
Libya challenges this reading of the resolutions of the Security Council and
contends that, if it is the right reading, the resolutions of the Security
Council are unlawful and ultra vires. That is to say, there is no dispute
between the Parties in this regard under Article 7 of the Montreal
Convention. There is a dispute over the meaning, legality [p 66] and
effectiveness of the pertinent resolutions of the Security Council. The
latter dispute may not be equated with the former. Consequently it does not
fall within the jurisdiction of the Court under Article 14 of the Montreal
Convention, which confines the Court's jurisdiction to "Any dispute between
two or more Contracting States concerning the interpretation or application
of this Convention . . .". Libya's complaint that the Security Council has
acted unlawfully can hardly be a claim under the Montreal Convention falling
within the jurisdiction of the Court pursuant to that Convention.
The Court holds that there is a further, overarching dispute between the
Parties, because
"the Parties differ on the question whether the destruction of the Pan Am
aircraft over Lockerbie is governed by the Montreal Convention. A dispute
thus exists between the Parties as to the legal regime applicable to this
event. Such a dispute, in the view of the Court, concerns the interpretation
and application of the Montreal Convention, and in accordance with Article
14, paragraph 1, of the Convention, falls to be decided by the Court."
(Judgment, para. 25.)
That holding is not without formal force. But, as in this case, it lends
itself to undue extension of the jurisdiction of the Court. If two States
are parties to a treaty affording jurisdiction to the Court in disputes over
its interpretation or application, is there a dispute under the treaty
merely because one party so maintains — or maintains that the treaty
constitutes the governing legal regime — while the other denies it?
It is in any event obvious that the Montreal Convention cannot afford the
Court jurisdiction over Libya's submission that the Respondent
"is under a legal obligation to respect Libya's right not to have the
Convention set aside by means which would in any case be at variance with
the principles of the United Nations Charter and with the mandatory rules of
general international law prohibiting the use of force and the violation of
the sovereignty, territorial integrity, sovereign equality and political
independence of States" (Memorial of Libya, Submissions, p. 242, para. 8.1
(d)).
Disputes under the Montreal Convention do not import those arising under the
Charter and customary international law. Yet the Court's holding on this
submission is equivocal. While it states that it cannot uphold the
Respondent's objection, at the same time it confines the Court's
jurisdiction to actions alleged to be at variance with the provisions of
the Montreal Convention. Finally, in respect of jurisdiction, the Court
observes that Security [p 67]
Council resolutions 748 (1992) and 883 (1993) were adopted after the filing
of Libya's Application on 3 March 1992. It holds that, in accordance with
its established jurisprudence, if the Court had jurisdiction on that date,
it continues to do so; subsequent adoption of the Security Council's
resolutions cannot affect its jurisdiction once established. That holding by
its terms does not resolve whether, on 3 March 1992, the Court had
jurisdiction. For the reasons set out above, the conclusion that it did is
dubious.
Moreover, the cases on which the Court relies in so holding hardly seem to
apply to the instant situation. The question at issue in the relevant phase
of the Nottebohm case was whether, where jurisdiction had been established
at the date of the application by Declarations under the Optional Clause, it
could be disestablished by subsequent lapse of a Declaration by expiry or
denunciation. Inevitably the Court held that it could not. In the case
concerning Right of Passage over Indian Territory, the Court concordantly
held that,
"It is a rule of law generally accepted, as well as one acted upon in the
past by the Court, that, once the Court has been validly seised of a
dispute, unilateral action by the respondent State in terminating its
Declaration . . . cannot divest the Court of jurisdiction." (Right of
Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J.
Reports 1957, p. 142.)
Nothing of the kind at issue in either of those cases is pertinent to the
instant case. There is no question of the Respondent unilaterally taking
action that purports to denounce the Montreal Convention or to excise
Article 14 thereof. Rather the Security Council has taken multilateral
action in pursuance of its Charter powers by adopting resolution 748 (1992)
which, as the Court held at the provisional measures stage of this case,
both Libya and the Respondent, "as Members of the United Nations, are
obliged to accept and carry out ... in accordance with Article 25 of the
Charter" (I.C.J. Reports 1992, p. 15). The Court then held that, "in
accordance with Article 103 of the Charter, the obligations of the Parties
in that respect prevail over their obligations under any other international
agreement, including the Montreal Convention" (ibid.). That is no less true
in 1998 than it was in 1992.
In its Judgment on jurisdiction and admissibility of 11 July 1996 in
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, the Court held that, "It is the case that the jurisdiction of
the Court must normally be assessed on the date of the filing of the act
instituting proceedings." (I.C.J. Reports 1996, p. 613, para. 26.) This most
recent holding on the question imports that what is normal is not
invariable; there is room for special treatment of the abnormal. The instant
case, in which the Applicant challenges the legality and applica-[p
68]bility to it of resolutions of the Security Council adopted to deal with
what the Council held to be a threat to international peace, surely is one
to be treated in the exceptional way to which the Court opened the door in
1996.
Admissibility and Mootness
The Respondent objects to the admissibility of Libya's claims in reliance
upon Security Council resolutions 748 (1992) and 883 (1993), which, having
been adopted under Chapter VII of the Charter, are binding and govern the
Montreal Convention by virtue of Article 103 of the Charter. It maintained
that the Court is not empowered to overturn the decisions of the Security
Council and certainly is not authorized to overturn the Council's
determination under Chapter VII of the existence of a threat to the peace
and its choice of measures to deal with the threat. Libya, among other
arguments, invoked the Court's holding in Border and Transborder Armed
Actions that, "The critical date for determining the admissibility of an
application is the date on which it is filed (cf. South West Africa,
Preliminary Objections, I.C.J. Reports 1962, p. 344)" (Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, I.C.J. Reports 1988, p. 95).
In its Judgment, the Court upholds this submission of Libya, declaring that,
"The date, 3 March 1992, on which Libya filed its Application, is in fact
the only relevant date for determining the admissibility of the Application.
Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into
consideration in this regard since they were adopted at a later date."
(Para. 44.)
It is solely on this ground that the Court dismisses the Respondent's
objection to the admissibility of the Application. It is solely on this
ground that the Court finds it right, at this stage of the proceedings, to
put aside resolutions of the Security Council adopted to deal with what the
Council has found to be acts of international terrorism that constitute
threats to international peace and security. ("Acts", rather than the
atrocious act of destroying the aircraft of Pan American flight 103, not
only because Libyan agents are alleged by French authorities to have
destroyed Union de transports aeriens flight 772 on 19 September 1989,
another atrocity addressed by the Security Council in resolutions 731
(1992), 748 (1992) and 883 (1993). That allegation has led French juge
d'instruction Jean-Louis Bruguière, after extensive investigation completed
on 29 January 1998, to call for trial of six alleged Libyan secret service
or former secret service agents, including a brother-in-law of Colonel
Qaddafi (a trial which, under French law, can take place in absentia) (Le
Monde, 31 January 1998, p. 11). The Security Council also has chosen to act
[p 69] under Chapter VII of the Charter in view of its broader determination
in resolution 748 (1992) "that the failure by the Libyan Government to
demonstrate by concrete actions its renunciation of terrorism and in
particular its continued failure to respond fully and effectively to the
requests in resolution 731 (1992) constitute a threat to international peace
and security".)
In my view, the holding of the Court is, on the facts of this case, even
less persuasive in respect of admissibility than it is in respect of
jurisdiction. It may be recalled that, in customary international law, the
admissibility of a claim espoused by a State, under the rule of nationality
of claims, is determined not as of the date of filing but as of the date of
judgment. It may also be observed that the whole basis on which the Court in
1992 proceeded in approving its Order rejecting the provisional measures
sought by Libya was that of the applicability, as of the date of its Order,
of Security Council resolution 748 (1992), adopted after the date of the
filing of Libya's Application and Libya's request for the indication of
provisional measures.
There is little in the legal literature on the question of whether, in the
jurisprudence of the Court, admissibility must be assessed as of the date of
application, perhaps because the quoted holding of the Court in the case
concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) is
the only such general holding of the Court. In the latest edition of his
magisterial work, Shabtai Rosenne writes that the date of the filing of the
act instituting the proceedings is the date "by reference to which the
existence of the dispute and the admissibility of the case are normally
determined . . ." (The Law and Practice of the International Court,
1920-1996, Vol. II, pp. 521-522). That appraisal leaves room for not
necessarily determining admissibility as of the date of the application.
The Court's holding in the Border and Transborder Armed Actions case
referred to its prior holding in the South West Africa cases. In those
cases, as well as in Border and Transborder Armed Actions, the issue was not
generally whether admissibility of an application is determined as of the
date of the application but specifically whether an alleged impossibility
of settling the dispute by negotiation could only refer to the time when the
applications were filed. (South West Africa, Preliminary Objections, I C.J.
Reports 1962, p. 344; Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p.
95. See also to similar effect, Right of Passage over Indian Territory,
Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 148.) The utility
of determining that question as of the date of the filing of the application
is clear. But whether it follows that, generally and in all cases, the
admissibility of an application is to be determined as of the date of its
filing, is not so clear. It may indeed be asked whether the Court's
apparently general holding in Border and Transborder Armed [p 70] Actions is
meant to have the comprehensive force which the Court assigns to it in this
case, in view of the restricted concern of the Court in that and the other
cases cited.
Moreover, the following lines of that Judgment significantly qualify the
sweep of the first sentence of the paragraph. It is instructive to quote the
first sentence in the context of the following sentences:
"The critical date for determining the admissibility of an application is
the date on which it is filed (cf. South West Africa, Preliminary
Objections, I.C.J. Reports 1962, p. 344). It may however be necessary, in
order to determine with certainty what the situation was at the date of
filing of the Application, to examine the events, and in particular the
relations between the Parties, over a period prior to that date, and indeed
during the subsequent period. Furthermore, subsequent events may render an
application without object, or even take such a course as to preclude the
filing of a later application in similar terms." (I.C.J. Reports 1988, p.
95, para. 66.)
In the case before the Court, it is precisely such "subsequent events",
namely adoption by the Security Council of resolutions 748 (1992) and 883
(1993), that render Libya's Application "without object", that is to say,
moot. Accordingly any judgment by the Court could have no lawful effect on
the rights and obligations of the Parties in light of the Council's binding
decisions and would thus not be within the proper judicial function of the
Court.
In the case concerning Northern Cameroons, the Court declared:
"The function of the Court is to state the law, but it may pronounce
judgment only in connection with concrete cases where there exists at the
time of the adjudication an actual controversy involving a conflict of legal
interests between the parties. The Court's judg-ment must have some
practical consequence in the sense that it can affect existing legal rights
or obligations of the parties, thus removing uncertainty from their legal
relations. No judgment on the merits in this case could satisfy these
essentials of the judicial function." (Northern Cameroons, Preliminary
Objections, Judgment, I.C.J. Reports 1963, pp. 33-34.)
The Court concluded:
"The Court must discharge the duty to which it has already called attention
— the duty to safeguard the judicial function. Whether or not at the moment
the Application was filed there was jurisdiction in the Court to adjudicate
upon the dispute submitted to it, circum-stances that have since arisen
render any adjudication devoid of pur-[p 71] pose. Under these conditions,
for the Court to proceed further in the case would not, in its opinion, be a
proper discharge of its duties." (I.C.J. Reports 1963, p. 38.)
In the two cases on Nuclear Tests, the Court held:
"The Court, as a court of law, is called upon to resolve existing disputes
between States. Thus the existence of a dispute is the primary condition
for the Court to exercise its judicial function; it is not sufficient for
one party to assert that there is a dispute, since 'whether there exists an
international dispute is a matter for objective determination' by the Court
. . . The dispute brought before it must therefore continue to exist at the
time when the Court makes its decision. It must not fail to take cognizance
of a situation in which the dispute has disappeared ... all the necessary
consequences must be drawn from this finding.
………………………………………………………………………………………………
Thus the Court concludes that, the dispute having disappeared, the claim
advanced ... no longer has any object. It follows that any further finding
would have no raison d'etre.
………………………………………………………………………………………………
The Court therefore sees no reason to allow the continuance of proceedings
which it knows are bound to be fruitless.
………………………………………………………………………………………………
The object of the claim having clearly disappeared, there is nothing on
which to give judgment." (Nuclear Tests (Australia v. France), I.C.J.
Reports 1974, pp. 270-272, paras. 55-56, 58-59. See also Nuclear Tests (New
Zealand v. France), I.C.J. Reports 1974, pp. 476-477, paras. 58-59, 61-62.)
It follows that, in the case now before the Court, the Court should have
held Libya's claims to be inadmissible, or at any rate moot, on the ground
that the issues between it and the Respondent have been determined by
decisions of the Security Council which bind the Parties and which, pursuant
to Article 103 of the Charter, prevail over any rights and obligations that
Libya and the Respondent have under the Montreal Convention. If the Court
had done so, it would have removed a prolonged challenge to the exercise by
the Security Council of its Charter responsibilities and presumably promoted
Libya's compliance with its obligations, under Article 25 of the Charter,
"to accept and carry out the decisions of the Security Council in accordance
with the present Charter".
An Exclusively Preliminary Character
However, the Court's Judgment holds that it may not so determine at this
stage of the proceedings because of the terms of Article 79 of the [p 72]
Rules of Court. That article provides that its judgment on preliminary
objections, whether they be to the jurisdiction or to the admissibility of
the application, "or other objection the decision upon which is requested
before any further proceedings on the merits", shall either uphold the
objection, reject it, "or declare that the objection does not possess, in
the circumstances of the case, an exclusively preliminary character". The
Court concludes that the objection that Libya's claims are without object
constitutes in many respects the very subject-matter of any judgment on the
merits and, hence, since it does not possess an exclusively preliminary
character, must be remitted to the stage of the merits.
In my view, the Court's conclusion in this regard is substantial and, unlike
some of its other conclusions, draws support from the reasoning and
authority set out in the Judgment. But is the Court's conclusion, however
plausible, compelling?
I do not find it so for these reasons. The Court takes an absolute view of
an admittedly absolute term, "exclusively". It holds that the Respondent's
objections are not exclusively preliminary in character. But it will be the
rare preliminary objection that actually is exclusively preliminary in
character. This will especially be so if the wide construction given by the
Court in the current case to the meaning of "exclusively" is followed in
future cases. The fact that a preliminary objection, if upheld, will
dispose of the merits of the case in the sense of preventing a hearing of
them proves nothing; all preliminary objections, if sustained, have this
effect. More than this, Article 79 qualifies the conclusion that the
objection does not possess an exclusively preliminary character by
specifying that it "does not possess, in the circumstances of the case, an
exclusively preliminary character". In the circumstances of this case,
concerned as it is or should be with jurisdiction under the Montreal
Convention — and there is no other ground for jurisdiction — a plea that the
case should not proceed to a consideration of the merits of rights and
obligations under the Montreal Convention because resolutions of the
Security Council render such consideration without object must be treated as
a plea of an exclusively preliminary character.
It may be added that, in the circumstances of this case, the Parties have
extensively argued elements of the case which the Court now remits to the
merits as part of the very subject-matter of the merits (as indeed the
Parties did at the stage of provisional measures). Presumably they did so by
dint of construction of paragraph 6 of Article 79 of the Rules, which
provides that,
"In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary, may
request the parties to argue all questions of law and fact, and to adduce
all evidence, which bear on the issue." [p 73]
They may also have had regard to the first paragraph of Article 79, which
speaks of any other objection the decision upon which is requested before
any "further" proceedings on the merits. The Court made no effort to limit
the arguments of the Parties embracing elements of what it now treats as the
merits. I do not think that the Court need now require, as it does require,
the Parties to argue these elements once more — actually, for a third time —
before it passes upon them and disposes of these objections. To have done so
at this stage the Court needed neither the resolution of disputed facts nor
the consideration of further evidence. To have ruled on the question of
whether the resolutions of the Security Council render Libya's invocation of
the Montreal Convention moot would not have entailed adjudicating the merits
of the case in so far as it relates to what may be within the jurisdiction
of the Court under the Montreal Convention. Important questions which may
arise on the merits would in any event remain unaddressed, such as the
propriety of the trial of the suspects in the United States or in the United
Kingdom.
The Court's decision in effect to join the preliminary objections to the
merits, a decision based essentially upon its literal construction of a word
of a Rule of Court, does not appear consistent with the design of the Court
in amending the Rules of Court in 1972. It has regrettable if un-intended
results, the least of which is requiring the Parties to argue, and the Court
to hear, arguments on those objections, or some of those objections, for a
third time. It will prolong a challenge to the integrity and authority of
the Security Council. It may be taken as providing excuse for continued
defiance of the Council's binding resolutions. It may be seen as prejudicing
an important contemporary aspect of the Council's efforts to maintain
international peace and security by combatting State-sponsored international
terrorism. Justice for the victims of an appalling atrocity may be further
delayed and-denied. The Court may have opened itself, not only in this but
in future cases, to appearing to offer to recalcitrant States a means to
parry and frustrate decisions of the Security Council by way of appeal to
the Court.
Judicial Review
That last spectre raises the question of whether the Court is empowered to
exercise judicial review of the decisions of the Security Council, a
question as to which I think it right to express my current views. The Court
is not generally so empowered, and it is particularly without power to
overrule or undercut decisions of the Security Council made by it in
pursuance of its authority under Articles 39, 41 and 42 of the Charter to
determine the existence of any threat to the peace, breach of the peace, or
[p 74] act of aggression and to decide upon responsive measures to be taken
to maintain or restore international peace and security.
The Court more than once has disclaimed possessing a power of judicial
review. In its Advisory Opinion in the case concerning Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter), the Court
declared:
"In the legal systems of States, there is often some procedure for
determining the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposals made during the drafting of the Charter to place the ultimate
authority to interpret the Charter in the International Court of Justice
were not accepted; the opinion which the Court is in course of rendering is
an advisory opinion. As anticipated in 1945, therefore, each organ must, in
the first place at least, determine its own jurisdiction. If the Security
Council, for example, adopts a resolution purportedly for the maintenance of
international peace and security and if, in accordance with a mandate or
authorization in such resolution, the Secretary-General incurs financial
obligations, these amounts must be presumed to constitute 'expenses of the
Organization'." (I.C.J. Reports 1962, p. 168.)
In its Advisory Opinion on Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), the Court reiterated that:
"Undoubtedly, the Court does not possess powers of judicial review or appeal
in respect of the decisions taken by the United Nations organs concerned."
(I.C.J. Reports 1971, p. 45.)
It should be noted that the Court made these holdings in advisory
proceedings, in which the Security Council and the General Assembly are
entitled to request the Court's opinion "on any legal question". The
authority of the Court to respond to such questions, and, in the course of
so doing, to pass upon relevant resolutions of the Security Council and
General Assembly, is not disputed. Nevertheless, if the Court could hold as
it did in advisory proceedings, a fortiori in contentious proceedings the
Court can hardly be entitled to invent, assert and apply powers of judicial
review.
While the Court so far has not had occasion in contentious proceedings to
pass upon an alleged authority to judicially review decisions of the
Security Council, it may be recalled that in Military and Paramilitary
Activities in and against Nicaragua the Court observed that:
"The Court is not asked to say that the Security Council was wrong in its
decision, nor that there was anything inconsistent with law in the way in
which the members of the Council employed their right to vote. [p 75]
69
The Court is asked to pass judgment on certain legal aspects of a situation
which has also been considered by the Security Council, a procedure which
is entirely consonant with its position as the principal judicial organ of
the United Nations." (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 436.)
The implication of this statement is that, if the Court had been asked by
the Applicant to say that the Security Council had been wrong in its
decision, the Court would have reached another conclusion.
The texts of the Charter of the United Nations and of the Statute of the
Court furnish no shred of support for a conclusion that the Court possesses
a power of judicial review in general, or a power to supervene the decisions
of the Security Council in particular. On the contrary, by the absence of
any such provision, and by according the Security Council "primary
responsibility for the maintenance of international peace and security", the
Charter and the Statute import the contrary. So extraordinary a power as
that of judicial review is not ordinarily to be implied and never has been
on the international plane. If the Court were to generate such a power, the
Security Council would no longer be primary in its assigned
responsibilities, because if the Court could overrule, negate, modify — or,
as in this case, hold as proposed that decisions of the Secu-rity Council
are not "opposable" to the principal object State of those decisions and to
the object of its sanctions — it would be the Court and not the Council that
would exercise, or purport to exercise, the dispositive and hence primary
authority.
The drafters of the Charter above all resolved to accord the Security
Council alone extraordinary powers. They did so in order to further
realization of the first Purpose of the United Nations,
"To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the
peace."
Article 24 thus provides:
"1. In order to ensure prompt and effective action by the United Nations,
its Members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying
out its duties under this responsibility the Security Council acts on their
behalf.
2. In discharging these duties the Security Council shall act in accordance
with the Purposes and Principles of the United Nations ..."[p 76]
Article 25 provides that: "The Members of the United Nations agree to accept
and carry out the decisions of the Security Council in accordance with the
present Charter."
These provisions — the very heart of the Charter's design for the
maintenance of international peace — manifest the plenitude of the powers
of the Security Council, which are elaborated by the provisions of Chapters
VI, VII, and VIII of the Charter. They also demonstrate that the Security
Council is subject to the rule of law; it shall act in accordance with the
Purposes and Principles of the United Nations and its decisions must be
adopted in accordance with the Charter. At the same time, as Article 103
imports, it may lawfully decide upon measures which may in the interests of
the maintenance or restoration of international peace and security derogate
from the rights of a State under international law. The first Purpose of
the United Nations quoted above also so indicates, for the reference to the
principles of justice and international law designedly relates only to
adjustment or settlement by peaceful means, and not to the taking of
effective collective measures for the prevention and removal of threats to
and breaches of the peace. It was deliberately so provided to ensure that
the vital duty of preventing and removing threats to and breaches of the
peace would not be limited by existing law. (See the Report on the Preamble,
Purposes and Principles, United Nations Conference on International
Organization (UNCIO), Vol. 6, pp. 453-454, and the observations of Lord
Halifax, p. 25.)
It does not follow from the facts that the decisions of the Security Council
must be in accordance with the Charter and that the International Court of
Justice is the principal judicial organ of the United Nations, that the
Court is empowered to ensure that the Council's decisions do accord with
the Charter. To hold that it does so follow is a monumental non sequitur,
which overlooks the truth that, in many legal systems, national and
international, the subjection of the acts of an organ to law by no means
entails subjection of the legality of its actions to judicial review. In
many cases, the system relies not upon judicial review but on
self-censorship by the organ concerned or by its members or on review by
another political organ.
Judicial review could have been provided for at San Francisco, in full or
lesser measure, directly or indirectly, but both directly and indirectly it
was not in any measure contemplated or enacted. Not only was the Court not
authorized to be the ultimate interpreter of the Charter, as the Court
acknowledged in the case concerning Certain Expenses of the United Nations.
Proposals which in restricted measure would have accorded the Court a
degree of authority, by way of advisory proceedings, to pass upon the
legality of proposed resolutions of the Security Council in the sphere of
peaceful settlement — what came to be Chapter VI of the Charter — were not
accepted. What was never proposed, considered, or, so far as the records
reveal, even imagined, was that the International Court of Justice would be
entrusted with, or would develop, a power of judicial review at large, or a
power to [p 77] supervene, modify, negate or confine the applicability of
resolutions of the Security Council whether directly or in the guise of
interpretation.
That this is understandable, indeed obvious, is the clearer in the light of
the conjunction of political circumstances at the time that the Charter was
conceived, drafted and adopted. The Charter was largely a concept and draft
of the United States, and secondarily of the United Kingdom; the other most
influential State concerned was the USSR. The United States was cautious
about the endowments of the Court. Recalling the rejection by the Senate of
the United States a decade earlier of adherence to the Statute of the
Permanent Court of International Justice, the Department of State was
concerned to assure that nothing in the Charter concerning the Court, and
nothing in the Statute which was to be an integral part of the Charter,
could prejudice the giving of advice and consent by the Senate to the
ratification of the Charter. Thus the Report of the Senate Committee on
Foreign Relations on the United Nations Charter of 16 July 1945 to the
Senate recommending ratification of the Charter specified:
"The Charter does not permit the Security Council or the General Assembly to
force states to bring cases to the Court, nor does it or the Statute permit
the Court to interfere with the functions of the Security Council or the
General Assembly . . . Your committee recommends that the Senate accept the
International Court of Justice in the form and with the authority set forth
in chapter XIV of the Charter and the annexed Statute of the Court." (United
States Senate, 79th Congress, 1st session, Executive Report No. 8, "The
Charter of the United Nations", republished in United States Senate, 83rd
Congress, 2nd session, Document No. 87, "Review of the United Nations
Charter^ A Collection of Documents", 1954, p. 67.)
The British Government which, together with the United States, was the
principal proponent of the creation of the Permanent Court of International
Justice and which had played a large and constructive part in respect of
that Court, was hardly less cautious in its approach to the powers of the
International Court of Justice, as is illustrated by a quotation from the
proceedings of the San Francisco Conference set out below.
As for the Government of the Union of Soviet Socialist Republics — a
Government which had been ideologically hostile to the Court since its
creation (as a reading of the Eastern Carelia case so vividly illustrates) —
can it be thought that Stalin, whose preoccupation in the days of San
Francisco was giving the veto power the widest possible reach, could have
assented to the establishment of a Court authorized to possess or develop
the authority to review and vary the application of resolutions adopted by
the Security Council under Chapter VII of the Charter?
At San Francisco, Belgium proposed the following amendment:
"Any State, party to a dispute brought before the Security Council, shall
have the right to ask the Permanent Court of International [p 78] Justice
whether a recommendation or a decision made by the Council or proposed in
it infringes on its essential rights. If the Court considers that such
rights have been disregarded or are threatened, it is for the Council either
to reconsider the question or to refer the dispute to the Assembly for
decision." (UNCIO, Vol. 3, p. 336.)
The purpose of the amendment, the Belgian delegate explained, was to allow
the State concerned to seek an advisory opinion from the Court if that State
believed that a Security Council recommendation infringed upon its essential
rights. It was not in any sense the purpose of the amendment to limit the
legitimate powers of the Security Council (ibid., Vol. 12, pp. 48-49).
The Belgian proposal gave rise to a mixed reaction, support from States such
as Ecuador and Colombia, and opposition from Great Power Sponsors of the
Conference. The delegate of the Soviet Union
"considered that the Belgian Amendment would have the effect of weakening
the authority of the Council to maintain international peace and security.
If it were possible for a state to appeal from the Council to the
International Court of Justice . . . the Council would find itself
handicapped in carrying out its functions. In such circumstances, the
Council might even be placed in a position of being a defendant before the
Court." (Ibid, Vol. 12, p. 49.)
The delegate of the United States explained the importance of the
requirement that the action of the Security Council in dealing with a
dispute involving a threat to the peace be taken "in accordance with the
purposes and principles of the Organization". One of the purposes is to
bring about peaceful settlement of disputes "with due regard for principles
of justice and international law". He did not interpret the Proposals as
preventing any State from appealing to the International Court of Justice
at any time on any matter which might properly go before the Court. On the
whole, he did not consider the acceptance of the Belgian Amendment
advisable, particularly since he believed that "the Security Council was
bound to act in accordance with the principles of justice and international
law" (ibid.). (It should be noted that this statement of 17 May 1945
antedated revision of the draft of the Charter's Purposes and Principles in
June to provide that "the principles of justice and international law"
relate only to the adjustment or settlement of international disputes by
peaceful means and not to measures of collective security.)
The delegate of France declared that, while he viewed with great sympathy
the ideas in the Belgian Amendment, he was doubtful that "it would be
effective in obtaining its desired end, especially since it [p 79]involved a
dispersal of responsibilities in the Organization" (UNCIO, Vol. 12, p. 50).
The delegate of the United Kingdom stated that the adoption of the Belgian
Amendment "would be prejudicial to the success of the Organization". The
amendment would
"result in the decision by the Court... of political questions in addition
to legal questions. The performance of this function by the Court. . . would
seriously impair the success of its role as a judicial body. Further, the
procedures proposed by the amendment would cause delay, at a time when
prompt action by the Security Council was most desirable. A powerful weapon
would thus be placed in the hands of a state contemplating aggression, and
the Council would not be able to play the part in maintaining peace which
was intended for it... he considered it necessary that the Council possess
the trust and confidence of all states; its majority would be composed of
small states, and it would be obligated to act in a manner consistent with
the purposes and principles of the Organization." (Ibid., p. 65.)
After a few other statements in this vein, the delegate of Belgium stated
that, since it was now clearly understood that a recommendation under what
was to become Chapter VI did not possess obligatory effect, he wished to
withdraw his amendment (ibid., p. 66).
Subsequently, the Conference rejected a proposal by Belgium to refer
disagreements between organs of the United Nations on interpretation of the
Charter to the Court. The pertinent report concludes:
"Under unitary forms of national government the final determination of such
a question may be vested in the highest court or in some other national
authority. However, the nature of the Organization and of its operation
would not seem to be such as to invite the inclusion in the Charter of any
provision of this nature. If two member states are at variance concerning
the correct interpretation of the Charter, they are of course free to submit
the dispute to the International Court of Justice as in the case of any
other treaty. Similarly, it would also be open to the General Assembly or to
the Security Council, in appropriate circumstances, to ask the International
Court of Justice for an advisory opinion concerning the meaning of a
provision of the Charter." (Ibid., Vol. 13, pp. 668-669.)
It may finally be recalled that, at San Francisco, it was resolved "to leave
to the Council the entire decision, and also the entire responsibility for
that decision, as to what constitutes a threat to peace, a breach of the
peace, or an act of aggression" (ibid., Vol. 11, p. 17). [p 80]
The conclusions to which the travaux preparatoires and text of the Charter
lead are that the Court was not and was not meant to be invested with a
power of judicial review of the legality or effects of decisions of the
Security Council. Only the Security Council can determine what is a threat
to or breach of the peace or act of aggression under Article 39, and under
Article 39 only it can "decide what measures shall be taken ... to maintain
or restore international peace and security". Two States at variance in the
interpretation of the Charter may submit a dispute to the Court, but that
facility does not empower the Court to set aside or second-guess the
determinations of the Security Council under Article 39. Contentious cases
may come before the Court that call for its passing upon questions of law
raised by Council decisions and for interpreting pertinent Council
resolutions. But that power cannot be equated with an authority to review
and confute the decisions of the Security Council.
It may of course be maintained that the Charter is a living instrument; that
the present-day interpreters of the Charter are not bound by the intentions
of its drafters of 50 years ago; that the Court has interpreted the powers
of the United Nations constructively in other respects, and could take a
constructive view of its own powers in respect of judicial review or some
variation of it. The difficulty with this approach is that for the Court to
engraft upon the Charter regime a power to review, and revise the reach of,
resolutions of the Security Council would not be evo-lutionary but
revolutionary. It would be not a development but a departure, and a great
and grave departure. It would not be a development even arguably derived
from the terms or structure of the Charter and Statute. It would not be a
development arising out of customary international law, which has no
principle of or provision for judicial review. It would not be a development
drawn from the general principles of law. Judicial review, in varying forms,
is found in a number of democratic polities, most famously that of the
United States, where it was developed by the Supreme Court itself. But it is
by no means a universal or even general principle of government or law. It
is hardly found outside the democratic world and is not uniformly found in
it. Where it exists internationally, as in the European Union, it is
expressly provided for by treaty in specific terms. The United Nations is
far from being a government, or an international organization comparable in
its integration to the European Union, and it is not democratic.
The conclusion that the Court cannot judicially review or revise the
resolutions of the Security Council is buttressed by the fact that only
States may be parties in cases before the Court. The Security Council cannot
be a party. For the Court to adjudge the legality of the Council's [p 81]
decisions in a proceeding brought by one State against another would be for
the Court to adjudicate the Council's rights without giving the Council a
hearing, which would run counter to fundamental judicial principles. It
would run counter as well to the jurisprudence of the Court. (Cf. East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 100105;
Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, pp.
32-33.) Any such judgment could not bind the Council, because, by the terms
of Article 59 of the Statute, the decision of the Court has no binding force
except between the parties and in respect of that particular case.
At the same time, a judgment of the Court which held resolutions of the
Security Council adopted under Chapter VII of the Charter not to bind or to
be "opposable" to a State, despite the terms of Article 25 of the Charter,
would seriously prejudice the effectiveness of the Council's resolutions and
subvert the integrity of the Charter. Such a holding would be tantamount to
a judgment that the resolutions of the Security Council were ultra vires, at
any rate in relation to that State. That could set the stage for an
extraordinary confrontation between the Court and the Security Council. It
could give rise to the question, is a holding by the Court that the Council
has acted ultra vires a holding which of itself is ultra vires!
For some 45 years, the world rightly criticized stalemate in the Security
Council. With the end of the Cold War, the Security Council has taken great
strides towards performing as it was empowered to perform. That in turn has
given rise to the complaint by some Members of the United Nations that they
lack influence over the Council's decision-making. However understandable
that complaint may be, it cannot furnish the Court with the legal authority
to supervene the resolutions of the Security Council. The argument that it
does is a purely political argument; the complaints that give rise to it
should be addressed to and by the United Nations in its consideration of the
reform of the Security Council. It is not an argument that can be heard in a
court of law.
(Signed) Stephen M. SCHWEBEL.
[p 82]
DISSENTING OPINION OF JUDGE ODA
1. I regret that I am unable to agree with any of the three points in the
operative part of the Judgment as I see the whole case from a different
viewpoint to that of the Court.
I. Lack of Jurisdiction — NO Dispute in Terms of the 1971 Montreal
Convention
2. The crux of the case before us is simple in that, to use the expression
used by Libya in its Application, the United Kingdom "continues to adopt a
posture of pressuring Libya into surrendering the accused" and "is rather
intent on compelling the surrender of the accused".
The United Kingdom and Libya have adopted different positions concerning
the surrender (transfer) of the two Libyans who are accused of the
destruction of Pan Am flight 103 over Lockerbie and who are located in
Libya. Those differing positions of the applicant State and the respondent
State did not, however, constitute a "dispute . . . concerning the
interpretation or application of the [1971 Montreal] Convention" to which
both are parties (Montreal Convention, Art. 14, para. 1).
It is my firm belief that the Application by which, on 3 March 1992, Libya
instituted proceedings against the United Kingdom pursuant to Article 14,
paragraph 1, of the Montreal Convention should be dismissed on the sole
ground that the dispute, if one exists, between the two States is not one
that "concern[s] the interpretation or application of the [Montreal]
Convention".
In order to clarify this conclusion, I find it necessary to examine the
chain of events which have occurred since the United Kingdom outlined, on 13
November 1991, its position on the Lockerbie incident and which led to Libya
filing its Application on 3 March 1992.
A. The United Kingdom and Libya's Respective Claims
3. The destruction of Pan Am flight 103 occurred on 21 December 1988 over
Lockerbie, Scotland, in the territory of the United Kingdom and involved the
death of 11 residents of Lockerbie, 259 passengers and crew, including 189
United States nationals and at least 29 United Kingdom nationals, and a
number of citizens of another 19 States.[p 83]
The United Kingdom's demand that Libya surrender the suspects
4. After carefully conducting a scientific investigation of the crash
evidence for a period of over three years, the United Kingdom considered
that it had identified the two persons responsible for the explosion — then
located in Libya — who were said to have been acting as agents of the Libyan
Government. The United Kingdom's position is set out in (i) the "Statement
of facts by the Lord Advocate, Scotland, in the case of [the two suspects]"
and (ii) the "Petition of the Procurator Fiscal of Court for the Public
Interest unto the Honourable the Sheriff of South Strathclyde, Dumfries and
Galloway at Dumfries", both dated 13 November 1991.
On the following day, 14 November 1991, the United Kingdom made public its
charges against the two suspects through (i) the Announcement by the Lord
Advocate of Scotland in which he stated that "I remain committed to bring
this matter to a proper conclusion in a Court of Law whether it is to be in
this country or in the United States" (United Nations doc. A/46/826;
S/23307, Ann.) and (ii) the Statement of the then Foreign Secretary, the Rt.
Hon. Douglas Hurd in the House of Commons, in which he said:
"a demand is being made of the Libyan authorities for the surrender of the
accused to stand trial. I repeat that demand on behalf of the whole
Government.
………………………………………………………………………………………………
We expect Libya to respond fully to our demand for the surrender of the
accused. The interests of justice require no less. This fiendish act of
wickedness cannot be passed over or ignored." (See United Nations doc.
A/46/826; S/23307, Ann. II.)
5. On 27 November 1991, the United Kingdom Government issued a statement
that
"the [British] Government demanded of Libya the surrender of the two accused
for trial. We have so far received no satisfactory response from the Libyan
authorities"
and in which it was further stated that:
"The British and American Governments today declare that the Government of
Libya must:
— surrender for trial all those charged with the crime ; and accept complete
responsibility for the actions of Libyan officials ;
— disclose all it knows of this crime, including the names of all those
responsible, and allow full access to all witnesses, documents and other
material evidence, including all the remaining timers; [p 84]
— pay appropriate compensation;
We are conveying our demands to Libya through the Italians, as our
protecting power. We expect Libya to comply promptly and in full." (See
United Nations doc. A/46/826; S/23307, Ann. III.)
The second point seems to me to be contingent on the first point and the
third point is nothing but a subsidiary request which was apparently not
pursued by the United Kingdom.
6. On the same day, the United Kingdom and the United States, together with
France (which had also been the victim of the destruction of an aircraft in
flight, a UTA DC10, on 19 September 1989, in an attack allegedly carried out
by Libyan agents), issued a tripartite declaration on terrorism. The
declaration reads in part:
"following the investigation carried out into the bombing[s] of Pan Am 103
.. . the three States have presented specific demands to the Libyan
authorities related to the judicial procedures that are under way. They
require that Libya comply with all these demands, and, in addition, that
Libya commit itself concretely and definitively to cease all forms of
terrorist action and all assistance to terrorist groups. Libya must
promptly, by concrete actions, prove its renunciation of terrorism." (See
United Nations doc. A/46/828; S/23309, Ann.)
The main thrust of the United Kingdom's claim was the demand for the
surrender of the suspects. In demanding the surrender of the suspects, the
United Kingdom took no further action other than issuing a statement or
declaration in this respect which was conveyed to Libya through the Italian
Government as the United Kingdom's protecting power.
Libya's response to the United Kingdom's demand
7. Libya responded to the accusation promptly on 15 November 1991 by means
of a Communique issued by the People's Committee for Foreign Liaison and
International Co-operation (hereinafter "the Libyan People's Committee") in
which it "categorically denie[d] that Libya had any association with that
incident" and "reaffirmed] its condemnation of terrorism in all its forms".
The Communique continued:
"When a small, developing country such as Libya finds itself accused by
super-Powers such as [the United States and] the United Kingdom, it reserves
its full right to legitimate self-defence before a fair and impartial
jurisdiction, before the United Nations and before the International Court
of Justice and other bodies.
………………………………………………………………………………………………
We urge the United States and the United Kingdom to be governed by the
logic of the law, by wisdom and by reason and to seek [p 85]the judgement of
impartial international commissions of inquiry or of the International Court
of Justice." (See United Nations doc. S/23221, Ann.)
8. The Libyan People's Committee commented in its 28 November 1991
Communique on the statements issued by the three States that:
"[a]U the applications [of the three States] will receive every attention,
inasmuch as the competent Libyan authorities will investigate it and deal
with the matter very seriously, in a manner that accords with the principles
of international legitimacy, including the rights of sovereignty and the
importance of ensuring justice for accused and victims"
and that
"Libya takes a positive view of international detente and the atmosphere
which it spreads and which establishes international peace and security and
leads to the emergence of a new international order in which all States are
equal, the freedom and options of peoples are respected and the principles
of human rights and the United Nations Charter and the principles of
international law are affirmed" (see United Nations doc. A/46/845; S/23417,
Ann.).
9. On 2 December 1991, the Libyan People's Committee issued a further
declaration refuting the United Kingdom's accusation against Libya and
reiterating its readiness to see that justice was done in connection with
the Lockerbie incident.
10. These responses from Libya dated 15 November 1991, 28 November 1991 and
2 December 1991 (as referred to above), which all three dealt with more
general issues relating to acts of terrorism, certainly implied a
categorical refusal by that State to accede to the United Kingdom's demand
to surrender the suspects.
The real issues existing between the United Kingdom and Libya
11. Since making the announcement, on 14 November 1991, of the indictment
for a criminal act relating to the Lockerbie incident, the United Kingdom
has accused Libya in the strongest terms of having links with international
terrorism. Libya, on the other hand, contended that no Libyan agent was
linked to the Lockerbie incident but stated its willingness to make every
effort to eliminate international terrorism and to cooperate with the
United Nations for this purpose.
Despite the mutual accusations that were made in relation to the respective
positions of the two States on international terrorism, that issue, however,
is not in dispute between the two States in the present case. Rather, Libya
insisted on carrying out any criminal justice pro-[p 86]cedure on its own
territory where the suspects were to be found and made clear that it had no
intention of surrendering them to the United Kingdom, although it later
expressed its readiness to hand the two suspects over to a third, neutral,
State or to an international tribunal. Libya accused the United Kingdom of
attempting to cause difficulties in demanding the surrender of the suspects.
12. In fact, what occurred between the United Kingdom and Libya was simply a
demand by the United Kingdom for the surrender to it of the suspects located
in Libya and a refusal by Libya to comply with that demand.
In demanding the surrender of the two suspects, the United Kingdom made an
attempt to justify that demand as an appeal that criminal justice be
pursued. The United Kingdom did not claim that Libya would be legally bound
under any particular law to surrender the two suspects. In none of the
documents that it issued did the United Kingdom make any mention of the
Montreal Convention nor did it accept that that Convention applied to the
incident, including the matter of the surrender of the suspects. Nor did
Libya, until January 1992, invoke the Montreal Con-vention as the basis of
its refusal to surrender the two suspects to the United Kingdom.
Libya invokes the Montreal Convention only on 18January 1992
13. On 18 January 1992, the Secretary of the Libyan People's Committee
addressed a letter to the United States Secretary of State and the Foreign
Secretary of the United Kingdom through the Embassies of Belgium and Italy
which were entrusted with looking after the interests of those two countries
in Libya. After pointing out that the United States, the United Kingdom, and
Libya were States parties to the 1971 Montreal Convention, Libya's letter
stated:
"out of respect for the principle of the ascendancy of the rule of law and
in implementation of the Libyan Code of Criminal Procedure ... as soon as
the charges were made, Libya immediately exercised its jurisdiction over the
two alleged offenders in accordance with its obligation under article 5,
paragraph 2, of the Montreal Convention by adopting certain measures to
ascertain their presence and taking immediate steps to institute a
preliminary inquiry. It notified the States . . . that the suspects were in
custody . . .
As a State party to the Convention and in accordance with paragraph 2 of
[article 5], we took such measures as might be necessary to establish our
jurisdiction over any of the offences . . . because the alleged offender in
the case was present in our territory.
Moreover, article 7 of the Convention stipulates that the Contracting Party
in the territory of which the alleged offender is found shall, if it does
not extradite him, submit the case to its competent [p 87] authorities for
the purpose of prosecution and that those authorities shall take their
decision in the same manner as in the case of any ordinary offence of a
serious nature under the law of that State." (See United Nations doc.
S/23441, Ann.)
14. It was in Libya's letter of 18 January 1992, as quoted above, that the
1971 Montreal Convention was first mentioned. The United Kingdom did not
respond to that letter. The United Kingdom was then informed by the
Registrar of the Court on 3 March 1992 of Libya's Application in which
reference was again made to the Montreal Convention. It is important that
this point should not be overlooked in deciding whether there did or did not
exist, on the date of the Application (namely 3 March 1992), "any dispute
... concerning the interpretation or applica-tion of the [Montreal]
Convention which cannot be settled through negotiation" (Montreal
Convention, Art. 14, para. 1).
B. The Relevant Issues of International Law The issues in the present case
15. There is no doubt that the 1971 Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation is, in general,
applicable to the destruction of the American Pan Am aircraft which occurred
in December 1988 over Lockerbie in the United Kingdom, as long as both
Libya and the United Kingdom are parties to it.
Neither Party seems ever to have doubted that that destruction constituted
a "crime" under the 1971 Convention. That point, however, is not in issue
between the two States; nor is the prevention of international terrorism at
issue in this case since proceedings were brought by Libya and not by the
United Kingdom.
Furthermore, the question of whether the United Kingdom can hold Libya, as a
State, responsible for the acts of Libyan nationals relating to the
destruction of the American Pan Am aircraft over United Kingdom territory
and of whether the explosion was caused by alleged Libyan intelligence
agents (which would make Libya responsible for the acts committed by such
persons), were not at issue either in the present Application which was
instituted by Libya and not by the United Kingdom.
16. It would be wrong to consider that the present Application concerns the
destruction of Pan Am flight 103 or, more generally, the Lockerbie incident
as a whole which constituted an act of international terrorism. An
application of that nature could have been filed by the United Kingdom but
not by Libya.
The issues in the present case submitted by Libya to the Court relate solely
to the demand of the Respondent, the United Kingdom, that the [p
88]Applicant, Libya, surrender the two suspects identified by the Lord
Advocate of Scotland as having caused the destruction of the Pan Am aircraft
(clearly a crime pursuant to the Montreal Convention) and Libya's refusal to
accede to the Respondent's demand. Relations between those two States
regarding the case went no further than this.
Criminal jurisdiction
17. No State is prevented from exercising its criminal jurisdiction over a
person or persons who have committed a crime on its territory, or a person
or persons who have committed serious damage to its interest or against its
nationals, or who have committed a crime of universal juris-diction anywhere
in the world. Accordingly, there is no doubt that in this case the United
Kingdom is competent to exercise its criminal jurisdiction over the two
suspects, whoever they may be and wherever they may be located.
Conversely, nor is there any doubt that any State is entitled to exercise
its criminal jurisdiction over a serious crime committed by its nationals
anywhere, either on its own territory or abroad. Libya's rights in this
respect do not seem to have been challenged by the United Kingdom.
18. Thus, the right to prosecute or punish criminals does not fall within
the exclusive jurisdiction of any particular State, either the State in
which the crime has been committed (in this instance, the United Kingdom)
or the State of which the criminal is a national (in this instance, Libya).
The Libyan suspects in this case are subject to the concurrent jurisdictions
of either the State where they have committed the crime or of the State
where they are located. The Montreal Convention adds nothing to this general
principle and does not deviate at all from it.
There is no difference in the views of the Applicant and the Respondent
regarding the interpretation of those general rules of international law.
There exists, apparently, no dispute in this respect.
19. The issues in this case arose not in relation to a legal question
governing the rights and obligations of either Party to prosecute or punish
the two suspects but are related rather to the fact that while the United
Kingdom demanded that Libya transfer or surrender the two suspects located
on its territory with a view to achieving criminal justice, Libya refused to
accede to that demand, and, accordingly, the suspects have (so far) avoided
the criminal jurisdiction of the United Kingdom.
Law of extradition
20. States have not been under an obligation to extradite accused persons
under general international law but some specific treaties, either [p 89]
multilateral or bilateral, have imposed the obligation on contracting States
to extradite accused persons to other contracting States. The Montreal
Convention is certainly one of those treaties.
An exception to that obligation to extradite criminals is made, however, in
the event that the accused are of the nationality of the State which is
requested to extradite them. This rule of non-extradition of nationals of
the requested State may not seem to be quite appropriate for the purposes of
criminal justice, as the accused may more adequately be prosecuted in the
country where the actual crime occurred. While no rule of international law
prohibits extradition of nationals of the requested State, there is a
long-standing international practice which recognizes that there is no
obligation to extradite one's own nationals. The Montreal Convention is no
exception as it does not provide for the extradition of nationals of the
requested State even for the punishment of these universally recognized
unlawful acts.
The rule of non-extradition of political criminals has long prevailed but
that rule does not apply in the case of some universal crimes, such as
genocide and acts of terrorism.
21. The Montreal Convention, however, goes one step further in the event
that States do not extradite the accused to other competent States, by
imposing the duty upon the State where the accused is located to bring the
case before its own competent authorities for prosecution. Under the
Montreal Convention, Libya would thus assume the responsibility to prosecute
the accused if it did not extradite them. Libya has not challenged this
point at all. Libya has claimed that it was proceeding to the prosecution of
the suspects and it has also expressed its willingness to extradite them to
what it maintains are certain politically neutral States.
C. Conclusion
22. Thus conceived, the question relating to the United Kingdom's demand
that Libya surrender the two suspects and Libya's refusal to accede to that
demand is not a matter of rights or legal obligation concerning the
extradition of accused persons between the United Kingdom and Libya under
international law nor is it a matter falling within the provisions of the
Montreal Convention. Or, at least, there is no legal dispute between Libya
and the United Kingdom concerning the interpretation or application of the
Montreal Convention which could have been brought to arbitration or to the
Court.
If there is any difference between them on this matter, that could simply be
a difference between their respective policies towards criminal justice in
connection with the question of which State should properly do justice on
the matter. That issue does not fall within the ambit of the Montreal
Convention.
From the outset, no dispute has existed between Libya and the United Kingdom
"concerning the interpretation or application of the [Montreal] Convention"
as far as the demand for the surrender of the suspects and [p 90] the
refusal to accede to that demand — the main issue in the present case — are
concerned. Libya neither presented any argument contrary to that viewpoint
nor proved the existence of such a legal dispute.
*
23. I therefore conclude that no grounds exist on which the Court may
exercise its jurisdiction to hear the present Application instituted by
Libya.
II. The Question of Admissibility — The Effect of the Security Council
Resolutions
24. As I have stated above, I am firmly of the view that the Court lacks
th'e jurisdiction to consider this Application filed by Libya. If the
Court's, jurisdiction is denied, as I believe it should be, the issue of
whether the Application is or is not admissible does not arise. For me, at
least, it is meaningless to discuss the question of admissibility. However,
the Court, after finding that it
"has jurisdiction, on the basis of Article 14, paragraph 1, of the Montreal
Convention ... to hear the disputes between Libya and the United Kingdom as
to the interpretation or application of the provisions of that Convention"
(Judgment, operative paragraph 53 (1) (b)),
continues to deal with the question of admissibility and finds that "the
Application filed by Libya ... is admissible" (para. 53 (2) (b)) by
"reject-ling] the objection to admissibility derived by the United Kingdom
from Security Council resolutions 748 (1992) and 883 (1993)" (para. 53 (2)
(a)). Despite the fact that I am of the view that the question of
admissibility should not arise since the Court should dismiss the
Application on the ground of lack of jurisdiction, I would now like to
comment upon the impact of these Security Council resolutions, which is the
only issue dealt with in the present Judgment in connection with whether the
Application is admissible or not.
25. Before doing so, I also have to refer to another point in the Judgment
on which I disagree. The Judgment states that the Court
"Declares that the objection raised by the United Kingdom according to which
Security Council resolutions 748 (1992) and 883 (1993) have rendered the
claims of Libya without object does not, in the circumstances of the case,
have an exclusively preliminary character." (Operative paragraph 53 (3).)
By finding the Application admissible, the Court certainly indicated that
the objection of the United Kingdom that Libya's claims are without object
as a result of the adoption of Security Council resolutions 748 [p 91]
(1992) and 883 (1993) does not have an exclusively preliminary character. In
my view, however, this point should not form any separate or distinct issue
from the question of admissibility but should be included in that question.
I believe that if the adoption of Security Council resolutions 748 (1992)
and 883 (1995) is to be dealt with in connection with the question of
admissibility of the Application, it should be dealt with at the present
(preliminary) stage irrespective of whether this question possesses or not
an exclusively preliminary character. I reiterate that the question of
whether Libya's claims are without object because of the Security Council
resolutions is a matter concerning admissibility which the Court should have
dealt with at this stage.
A. Referral of the Incident to the United Nations — Particularly to the
Security Council — by the Parties and Their Subsequent Actions
26. It should be noted that the majority of the documents issued by the
United Kingdom and Libya were communicated to the United Nations with the
request that they be distributed as documents of both the General Assembly
and the Security Council or of the Security Council alone (see paras. 4-7
above).
Referral of United Kingdom and Libyan documents to the United Nations
27. The United Kingdom only transmitted the relevant documents to the United
Nations as late as 20 December 1991: (i) the announcement by the Lord
Advocate of Scotland and the statement by the Foreign Secretary of the
United Kingdom, both of 14 November 1991, and the statement issued by the
British Government on 27 November 1991 were presented to the United Nations
Secretary-General on 20 December 1991 and were distributed as document
A/46/826 and S/23307; (ii) the Joint Declaration of 27 November 1991 was
also transmitted to the United Nations Secretary-General on 20 December 1991
and distributed as document A/46/828 and S/23309.
28. It was, however, Libya that had already informed the United Nations
Secretary-General of the British statements in which the accusation that
the two suspects were involved in the Lockerbie incident was made. This
occurred well before the United Kingdom transmitted its documents to the
United Nations.
Three documents were transmitted by Libya to the United Nations: (i) Libya's
first Communique was transmitted on 15 November 1991 to the President of the
Security Council and was distributed as document S/23221; (ii) Libya's
Communique responding to the three States' (the United Kingdom, the United
States and France) Joint Declaration of 27 November 1991 was transmitted on
28 November 1991, and was dis-[p 92] tributed as document A/46/845 and
S/23417; and (iii) a letter dated 18 January 1992 from the Secretary of the
Libyan People's Committee addressed to the United States Secretary of State
and to the Foreign Secretary of the United Kingdom was transmitted on that
same day to the President of the Security Council and was distributed as
document S/23441.
Libya's notification of the events to the United Nations
29. The relevant documents were thus transmitted by Libya for distribution
to the delegates in the General Assembly and particularly to the members of
the Security Council. In addition, a few days after the United Kingdom and
the United States announced the indictment of the two Libyan suspects, the
Secretary of the Libyan People's Committee sent letters addressed directly
to the United Nations Secretary-General (as indicated in paragraph 30 below)
in an effort to draw the attention of the United Nations member States to
the chain of events that had unfolded since 13 November 1991, particularly
in relation to the transfer of the suspects. Libya seems to have believed
that the matters involved were not legal issues but were concerned with
international peace and security, and, as such, were to be dealt with by the
United Nations.
30. In (i) its letter to the Security Council of 17 November 1991, issued as
United Nations document A/46/660 and S/23226, Libya requested a dialogue
between itself, on the one hand, and the United Kingdom and the United
States, on the other, and expressed its readiness to co-operate in the
conduct of any neutral and honest enquiry. Libya affirmed its belief in the
peaceful settlement of disputes, as provided for in Article 33, paragraph 1,
of the Charter, which lays down that the parties to any dispute "shall,
first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement. . ."; (ii) in its letter of
20 November 1991, issued as United Nations document A/46/844 and S/23416,
Libya stated its "unconditional readiness to co-operate in order to
establish the truth" and declared its "readiness to co-operate to the full
with any impartial international judicial authority". This letter
emphasized that the Charter "guarantees the equality of peoples and their
right to make their own political and social choices, a right that is
enshrined in religious laws and is guaranteed by international law"; (iii)
in its letter of 8 January 1992, issued as United Nations document A/46/841
and S/23396, Libya stated:
"If it is a matter of political differences between the three countries and
Libya, then the differences must be discussed on the basis of the Charter of
the United Nations, which does not endorse aggression or the threat of
aggression but rather calls for the resolution of differences by peaceful
means. Libya has expressed its readi-[p 93]ness to pursue any peaceful
means that the three countries may desire for the resolution of existing
differences."
31. It is thus clear that the announcement of the Lord Advocate of Scotland
and the United Kingdom's demand for surrender of the two suspects, and
Libya's immediate refusal to accede to that demand, had already been
notified by Libya to the United Nations on 17 November 1991 — not apparently
as legal issues existing solely between the two States but as matters
concerning international peace and security in which the United Nations
should be involved.
B. The Security Council Resolutions Security Council resolution 731 (1992)
of 21 January 1992
32. On 20 January 1992 — that is to say two days after the Libyan letter of
18 January 1992 addressed to the United States and to the United Kingdom was
distributed as a Security Council document S/23441 (as stated above in
paragraph 28) — the United Kingdom and the United States, together with
France, presented a draft resolution for adoption to the Security Council
(United Nations doc. S/23762), the main purpose of which was to encourage
Libya to provide "a full and effective response to the requests" (emphasis
added) made by the United Kingdom and the United States.
It should be noted that, in fact, the surrender of the two suspects to the
United Kingdom (or to the United States) was not mentioned explicitly in
this draft resolution except by a simple reference to the letters
reproduced in Security Council documents S/23306, S/23307, S/23308, S/23309
and S/23317 (the letters addressed to the United Nations by the United
Kingdom and the United States; S/23306 was sent to the Security Council by
France).
33. On the following day, 21 January 1992, the Security Council was convened
and the agenda — letters dated 20 and 23 December 1991 (S/23306; S/23307;
SI23308; S/23309; and S/23317): the letters indicated in the agenda
consisted of the letters addressed to the United Nations Secretary-General
by France, the United Kingdom and the United States, mentioned above — was
adopted.
34. Most of the arguments presented were directed at rather general
questions relating to the condemnation or elimination of international
terrorism, on the tacit understanding that the destruction of Pan Am flight
103 was caused by persons (allegedly Libyan intelligence agents) now
residing in Libya.
The surrender of the two suspects by Libya to either the United Kingdom or
the United States was barely addressed in the Security Council debates.
Support for the surrender of the two suspects was mentioned in [p 94] the
debates in only the statements of the United Kingdom and of the United
States. The United States representative said:
"The resolution makes it clear that the Council is seeking to ensure that
those accused be tried promptly in accordance with the tenets of
international law. The resolution provides that the people accused be simply
and directly turned over to the judicial authorities of the Governments
which are competent under international law to try them." (United Nations
doc. S/PV.3033, p. 79.)
The United Kingdom's representative said:
"We very much hope that Libya will respond fully, positively and promptly,
and that the accused will be made available to the legal authorities in
Scotland or the United States . . . The two accused of bombing Pan Am flight
103 must face, and must receive a proper trial. Since the crime occurred in
Scotland and the aircraft was American, and since the investigation has been
carried out in Scotland and in the United States, the trial should clearly
take place in Scotland or in the United States. It has been suggested the
men might be tried in Libya. But in the particular circumstances there can
be no confidence in the impartiality of the Libyan courts." (Ibid., p. 105.)
35. In the meeting that took place on 21 January 1992, the Security Council
unanimously adopted resolution 731 (1992) which includes the following:
"The Security Council,
………………………………………………………………………………………………………….
Deeply concerned over the results of investigations . . . which are
contained in Security Council documents that include the requests addressed
to the Libyan authorities by . . . the United Kingdom . . . and the United
States ... in connection with the legal procedures related to the attac[k]
carried out against Pan Am flight 103 . . .;
Determined to eliminate international terrorism,
………………………………………………………………………………………………
2. Strongly deplores the fact that the Libyan Government has not yet
responded effectively to the above requests to cooperate fully in
establishing responsibility for the terrorist ac[t] . . . against Pan Am
flight 103 . . .;
3. Urges the Libyan Government immediately to provide a full and effective
response to those requests so as to contribute to the elimination of
international terrorism;
4. Requests the Secretary-General to seek the cooperation of the Libyan
Government to provide a full and effective response to those requests"
(emphasis added). [p 95]
It should be noted that, although the surrender of the two suspects was not
specifically mentioned in the resolution, the "request" referred to therein
meant mainly the surrender of the suspects, and that the Security Council
referred to the request of the United Kingdom and of the United States that
Libya co-operate in establishing responsibility for the terrorist act, which
request, as I repeat, included a call for the surrender of the two suspects.
36. The Secretary-General presented a report on 11 February 1992, issued as
United Nations document S/23574, pursuant to paragraph 4 of Security Council
resolution 731 (1992) in which the Secretary-General gave a report on the
visit of his mission to Libya and transmitted Libya's viewpoint. On 3 March
1992, the Secretary-General presented a further report on the same issue as
United Nations document S/23672 which concluded that:
"it will be seen that while resolution 731 (1992) has not yet been complied
with, there has been a certain evolution in the position of the Libyan
authorities since the Secretary-General's earlier report of 11 February
1992".
It was on that very date, 3 March 1992, that Libya filed the Application in
the present case instituting proceedings against the United Kingdom on
"questions of interpretation and application of the [1971] Montreal
Convention arising from the aerial incident at Lockerbie".
The meaning of Security Council resolution 731 (1992)
37. It appears from this chain of events dating from November 1991 to the
date of the Application, namely 3 March 1992, that what concerned Libya was
the fact that, on the basis of a proposal made by the United Kingdom and the
United States, as well as France, the Security Council had passed resolution
731 on 21 January 1992 by which it "urgefd] the Libyan Government
immediately to provide a full and effective response to those requests so as
to contribute to the elimination of international terrorism" (emphasis
added) ("those requests" being mainly the requests of the United Kingdom and
the United States for surrender of the suspects).
The United Kingdom and the United States did not at that time appear to have
considered that there was a "dispute" between themselves and Libya within
the meaning of Chapter VI of the United Nations Charter, as is clear from
the fact that the United Kingdom and the United States participated in the
voting on that Security Council resolution 731 (1992). Libya appears to have
considered that the United Kingdom and the United States would have been
well aware that their demand, now called a "request", would have had to be
made simply from the standpoint of a political consideration that
international terrorism should be condemned and eliminated. [p 96]
38. The United Kingdom and the United States were apparently of the view, on
20-21 January 1992, that Libya's refusal to surrender the two suspects named
in connection with the Lockerbie incident would have consequences for the
maintenance of international peace and security, and should have been dealt
with by the Security Council which has primary responsibility for that
object. It may be assumed that the United Kingdom and the United States
would have known that the demand would not be a matter that could be dealt
with from a legal point of view.
The fact that, on 21 January 1992, the Security Council dealt unanimously
with the Lockerbie incident as a matter connected with international peace
and security had nothing to do with the issue of whether or not the United
Kingdom and the United States had legal competence to require the surrender
of the two suspects and of whether or not Libya was obliged to surrender
them under the provisions of the Montreal Convention. These separate issues
should be examined on their own merits.
Security Council resolutions 748 (1992) and 883 (1993)
39. The United Kingdom and the United States appear, after the filing of
Libya's Application in the present case, to have considered that Libya's
firm resistance to the surrender of the two suspects would constitute
"threats to the peace, breaches of the peace, and acts of aggression"
(United Nations Charter, Chap. VII). In fact, the United Kingdom and the
United States, together with France, submitted another draft resolution to
the Security Council on 30 March 1992 (United Nations doc. S/25058). This
appeal by the United Kingdom and the United States (as well as France) to
the Security Council to adopt a draft resolution under Chapter VII of the
United Nations Charter was not directly related to the present Application
filed by Libya on 3 March 1992 and had been under negotiation in the
Security Council before that date.
40. On 31 March 1992, the Security Council, "acting under Chapter VII of
the Charter", adopted resolution 748 (1992). The United Kingdom and the
United States, as sponsoring States, ensured that the proposal before the
Security Council stated that it was "deeply concerned that the Libyan
Government has still not provided a full and effective response to the
requests in its resolution 731" (emphasis added).
During the meeting in the Security Council, the United States
representative said:
"We have called upon Libya to . . . turn over the two suspects in the
bombing of Pan Am 103 for trial in either the United States or the United
Kingdom . . . This resolution also makes clear the Council's decision that
Libya should comply with those demands." (United Nations doc. S/PV.3063, p.
66.)[p 97]
The United Kingdom representative stated:
"We were especially grateful to the Arab Ministers who went to Tripoli last
week to seek to persuade the Libyan leader to comply and hand over the
accused so that they could stand trial. The three co-sponsors of the
resolution have taken the greatest care to allow time for these efforts to
bear fruit." (United Nations doc. S/PV.3063, p. 69.)
In fact the demand for the surrender of the suspects was inserted
implicitly into that resolution, although its main purpose was to condemn
the Lockerbie incident itself totally and also, more generally, acts of
terrorism in which Libya was allegedly involved. The Security Council
decided to impose economic sanctions upon Libya.
41. Having obtained no positive result from Security Council resolution 748
(1992), the United Kingdom and the United States (together with France)
again took the initiative in proposing a renewed resolution to the Security
Council (United Nations doc. S/26701) which, on 11 November 1993, adopted
Security Council resolution 883 (1993), along similar lines to resolution
748 (1992). In that meeting the United States representative said "[w]e
await the turnover of those indicted for the bombing of Pan Am 103" (United
Nations doc. S/PV.3312, p. 41), and the United Kingdom's representative
stated:
"if the Secretary-General reports to the Council that the Libyan Government
has ensured the appearance of those charged with the Lockerbie bombing
before the appropriate United States or Scottish court . . . then th&
Security Council will review the sanctions with a view to suspending them
immediately" (ibid., p. 45).
C. Conclusion
42. The question remains whether these Security Council resolutions,
particularly resolutions- 748 (1992) and 883 (1993), which were adopted
after the filing of the application in this case, bear on the present case
as brought by Libya. Inc other words, the question of whether Libya's 3
March 1992 Application has become without object after the adoption of these
31 March 1992 and 11 November 1993 Security Council resolutions is distinct
from the. case as presented by Libya. If there is any dispute in this
respect, it could be a dispute between Libya and the Security Council or
between Libya and the United Nations, or both, but not between Libya and the
United Kingdom.
The effect of the Security Council resolutions (adopted for the aim of
maintaining international peace and security) upon member States is a [p 98]
matter quite irrelevant to this case and the question of whether Libya's
Application is without object in the light of those resolutions hardly
arises.
*
43. Even though I found that Libya's Application should be dismissed owing
to the Court's lack of jurisdiction, I nonetheless wanted to express my view
that these Security Council resolutions, which have a political connotation
in dealing with broader aspects of threats to the peace or breaches of the
peace, have nothing to do with the present case, which, had there been
jurisdiction, could have been submitted to the Court as a legal issue which
existed between the United Kingdom and Libya, and between the United States
and Libya, before the resolutions were adopted by the Security Council.
(Signed) Shigeru ODA.
[p 99]
DISSENTING OPINION OF JUDGE SIR ROBERT JENNINGS
I very much regret that I have to dissent from the decision of the majority
of the Court in this case.
There are two main issues: the question of jurisdiction; and the question
of admissibility. As I differ from the majority on both questions, I should
briefly say why; dealing first with jurisdiction.
Jurisdiction
Jurisdiction of the Court in this case will be established if, and in so far
as, there is shown to be a dispute or disputes "concerning the
interpretation or application of this Convention", within the meaning of
Article 14, paragraph 1, of the 1971 Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation. To find the answer to
this question it is necessary to look at two things: Libya's submissions,
not only in the present phase, but also in its Application of 3 March 1992
initiating the case against the United Kingdom — this in order to find out
what is said to be disputed; and secondly, the provisions of the Convention
that are said to be involved in the dispute. As the relevant provisions of
the Convention are referred to in the submissions we shall consider the
submissions (or requests as they are described in the Appli-cation and the
Memorial) in turn. There are four of them : they request the Court to
adjudge and declare as follows, in (a), (b), (c) and (d) below.
(a) That the Montreal Convention Is Applicable to This Dispute
The question the Court has to decide is which, if any, items of the Libyan
claims are both disputed by the United Kingdom and necessarily "concern the
interpretation or application" of the Montreal Convention; and therefore
generate jurisdiction under Article 14 of the Convention. The broad terms of
this submission (a) merely beg the question of which particular provisions
of the Convention are supposed to be involved.
The citation of the Convention as a whole also invites speculation as to
whether it was ever intended to deal with acts of terrorism allegedly
committed by persons actually employed by a government also allegedly
involved in the commission of those acts. [p 100]
It is noteworthy that this submission (a) did not appear at all in the
Libyan Application which initiated the case. It raises a question, now that
the Court has found that it has some jurisdiction, how far Libya might
further seek to change the content and nature of its case in pursuance of
its reservation of "the right to supplement and amend these submissions as
appropriate in the course of further proceedings".
(b) That Libya Has Fully Complied with All of Its Obligations under the
Montreal Convention and Is Justified in Exercising the Criminal Jurisdiction
Provided for by That Convention
There is here no dispute under the Convention because the United Kingdom has
not sought to dispute that Libya has complied with all its obligations under
the Convention. There was nothing contrary to the Convention in the United
Kingdom's requesting the extradition of the two suspects. Nor is there any
dispute that, under the terms of the Montreal Convention, Libya is
justified in exercising its own criminal jurisdiction provided for by that
Convention. The United Kingdom contention in this case is that Libya is not
now justified in exercising that jurisdiction in so far as to do so would be
contrary to decisions of the Security Council made under Chapter VII of the
Charter; that is not a matter arising under the provisions of the Convention
but one concerning the interpretation or application of the United Nations
Charter; and to pretend that it is one that comes within Article 14,
paragraph 1, of the Convention is not free from absurdity.
(c) That the United Kingdom Has Breached, and Is Continuing to Breach, Its
Legal Obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2), 8 (3) and
11 of the Montreal Convention
It is necessary to consider each of these provisions of the Convention in
turn to see whether there is a dispute which comes within the scope of
Article 14 of the Convention.
Article 5(2)
This is the Article which requires a party to "take such measures as may be
necessary to establish its jurisdiction" over offences against the
Convention, in lieu of extradition, where the offender is "present in its
territory".
This creates a legal obligation upon Libya, as on all parties to the
Convention, which obligation, according to Libya, it has indeed carried
out. It is difficult to understand how it can be said that the United
Kingdom is in breach, and seemingly continuous breach, of that obligation
upon
[p 101] Libya; much less to understand where the supposed dispute might be.
Article 5, paragraph 2, is concerned with legislation and other measures
which Libya, as a party to the Convention, is obligated to implement. It
claims to have done so, and this has not been denied by the United Kingdom.
Article 5 (3)
"This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law."
Again, there is simply no scintilla of a dispute here between the Parties
about the interpretation or application of the Convention. In fact this
provision is entirely plain and there is nothing much to dispute about it.
Article 7
This provides:
"The Contracting State in the territory of which the alleged offender is
found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory,
to submit the case to its competent authorities for the purpose of
prosecution. Those authorities shall take their decision in the same manner
as in the case of any ordinary offence of a serious nature under the law of
that State."
Again, it is difficult to understand in what way the United Kingdom can be
said to be in breach of this Article of the Convention.
The United Kingdom's request for extradition is not in breach of the
Convention for extradition but is in accord with an alternative procedure
actually contemplated by Article 7 itself. Even if the insistence on
extradition rather than domestic prosecution be a breach of the Convention,
then the complaint should be addressed to the Security Council and not to
selected members of the Security Council. In any event it is difficult to
see in what way Libya is actually prevented from prosecuting the two
suspects and in fact according to its own pleading it is already in the
process of doing precisely that — a process which has been curiously
prolonged.
Article 7 of the Convention obliges Libya, as the place where the alleged
offenders are to be found, either to extradite or, if it does not extradite,
then itself to ensure that it prosecutes the offenders. The latter option is
qualified by the Security Council resolutions, which by their terms remove
the alternative option of domestic prosecution (surely a reasonable step
where the charge is that the State party to the Convention is itself
allegedly implicated in the offence). Libya disputes the effect of the
Security Council resolutions; but this is not a dispute with the United
Kingdom about the Convention but a dispute with the Security Council about
its resolutions. It is not a dispute that can be reasonably [p 102]
categorized as one coming within the intended ambit of Article 14,
paragraph 1. For it is in no way a dispute that can be settled by reference
to Article 7 or to any other part of the Convention. The real dispute is one
about the meaning and applicability of the Charter of the United Nations,
about Articles 25 and 103 in particular and about the meaning and
application of Security Council resolutions 731 (1992), 748 (1992) and 883
(1993). The attempt to tack this "dispute" on to Article 14, paragraph 1, of
the Convention, via Article 7, is an artifice that really ought not to
beguile this Court. And in so far as it is now being entertained by the
Court one must have in mind the multitudinous possibilities it opens up of
using the normal and common jurisdiction clauses of bilateral treaties to
frustrate and delay the peacekeeping measures of the Security Council.
Moreover, although there does seem to be some dispute between Libya and the
United Kingdom about the meaning and interpretation of the Security Council
resolutions, and if indeed according to Libya's own interpretation those
resolutions do not at all require the surrender of the suspects, then the
alternative option provided by Article 7, of a way in which Libya can
perform her Convention obligations, actually remains intact.
It will be convenient at this point to mention the device with which the
Court's Judgment endeavours to neutralize the effect of the Security Council
resolutions made under its powers conferred by Chapter VII of the Charter.
It is true that "the Security Council resolutions 748 (1992) and 883 (1993)
were in fact adopted after the filing of the Application on 3 March 1992";
and that, "In accordance with its established jurisprudence, if the Court
had jurisdiction on that date, it continues to do so" (Judgment, para. 38).
But this fact is irrelevant. The Court's proposition assumes that there was,
at the date of the Application, jurisdiction over a dispute covered by
Article 14, paragraph 1, of the Convention; a dispute the effect of which
the resolutions seek to change. This is not so. The point is not that the
Security Council resolutions sought to take away an already established
jurisdiction of the Court; the point is that there never was in any real
sense any dispute between the Parties about the Montreal Convention. It is
true that the legal status and meaning of all these Security Council
resolutions have been vigorously questioned by Libya under cover of the
present proceedings; but this is not a dispute under Article 14, paragraph
1, of the Convention.
Article 8 (2) and (3)
In its Application Libya cited Article 8, paragraph 2, which provides: [p
103]
"If a Contracting State which makes extradition conditional on the existence
of a treaty receives a request for extradition from another Contracting
State with which it has no extradition treaty, it may at its option consider
this Convention as the legal basis for extradition in respect of the
offences. Extradition shall be subject to the other conditions provided by
the law of the requested State."
In its Memorial submissions, however, Libya cited only paragraph 3 of
Article 8 which provision imposes an obligation upon States:
"[States] which do not make extradition conditional on the existence of a
treaty shall recognize the offences as extraditable offences between
themselves subject to the conditions provided by the law of the requested
State".
Again, one is simply at a loss to know in what way the United Kingdom is
supposed to be in continuous breach with respect to either of these
provisions, much less how it can be said that there is a dispute about its
interpretation or application between the United Kingdom and Libya.
Article 11
This is the Article creating a treaty obligation to:
"afford one another the greatest measure of assistance in connection with
criminal proceedings brought in respect of the offences. The law of the
State requested shall apply in all cases."
Libya alleges that the United Kingdom had not done as much as it was obliged
to do in attempting to provide the assistance provided for under this
Article. There is in any event no dispute here about the interpretation of
the Convention; there is a question whether it applies, given the changed
situation brought about by the Security Council resolutions. But that again
is a question, or even dispute, that cannot be resolved by reference to the
provisions of the Convention, about which there is no real dispute. It is a
dispute about the effect of the resolutions and that dispute is not one that
can be said to be one contemplated by Article 14 of the Convention.
In any case it will be noted that the "affording" (not a strong word at all)
of information is, by the very terms of this Article, qualified, in this
case, by the relevant Scottish law. Secondly, the United Kingdom surely has
provided enough information to form a viable basis for a Libyan prosecution
of the suspects, if that is how Libya wishes to proceed. Indeed one might
reasonably have supposed that enough information and material has been
provided to this Court. Thus, it is somewhat fanciful even to argue that
there could be a dispute between the United Kingdom and Libya about the
application of Article 11 of the Conven-[p 104]tion. Moreover, Libya has
argued (see paragraph 26 of this Judgment) that "Libya has exercised its
jurisdiction over the two alleged offenders on the basis of its Penal Code,
and the Respondent should not interfere with the exercise of that
jurisdiction". But this is manifestly incompatible with Libya's submission
under Article 11 of the Convention, and Libya cannot have it both ways. So,
quite apart from the question whether there is an Article 14 dispute, it is
very doubtful whether there is here any dispute at all.
(d) That the United Kingdom Is under a Legal Obligation to Respect Libya's
Right Not to Have the Convention Set Aside by Means Which Would in Any Case
Be at Variance with the Principles of the United Nations Charter and with
the Mandatory Rules of General International Law Prohibiting the Use of
Force and the Violation of the Sovereignty, Territorial Integrity,
Sovereign Equality and Political Independence of States
It is interesting to note how this submission, as it is in the Memorial
version, has been radically amended since its first appearance in the
Application (then submission (c), conveniently reproduced in the Order of
the Court of 14 April 1992, I.C.J. Reports 1992, p. 7). Originally it asked
the Court to adjudge and declare that the United Kingdom was
"under a legal obligation immediately to cease and desist from such breaches
and from the use of any and all force or threats against Libya, including
the threat of force against Libya, and from all violations of the
sovereignty, territorial integrity, and the political independence of
Libya".
In the latest version of this submission, the "immediately" has
disappeared. No doubt it was thought inappropriate after rather more than
five years of undisturbed peace with the United Kingdom. There might again
also be thought to be a question how far a State may, by simply reserving
"the right to supplement and amend" its submissions, change at its
convenience and expediency as the case proceeds the basis of the case made
in its original Application; at least without seeking the leave of the
Court.
No doubt the most carefully considered and devised change is the
introduction of the idea of "Libya's right not to have the Convention [i.e.
the Montreal Convention] set aside by means", etc. This idea is no doubt
intended to suggest that setting aside the Convention brings the dispute
under the rubric of "the application" of the Convention as that phrase is
used in Article 14, paragraph 1, the jurisdiction article, of the
Convention.
It might suggest this but in my view in no wise establishes it. The only [p
105] "setting aside" of some parts of the Convention regime, if it can be
said to occur at all, is in consequence of the Security Council resolutions.
So any dispute over the "setting aside" is between Libya and the Security
Council, and not with the United Kingdom. This dispute could not
conceivably be said to come within Article 14, paragraph 1, of the
Convention.
For all the above reasons the Court, in my view, does not have jurisdiction
over this dispute. But before leaving the matter of jurisdiction there is a
further comment I wish to make. That is that I find some aspects of the
Applicant's argument about jurisdiction to be somewhat specious. In
particular, the arguments deployed in the attempt to bring this essentially
Security Council matter somehow, indeed anyhow, within the scope of Article
14, paragraph 1, of the Convention are factitious. The arguments are clever
and even ingenious, and have been brilliantly successful in producing a
five-year and more delay which was no doubt their primary purpose. But the
whole endeavour constitutes a highly artificial device. It is fashioned to
attract the legal cast of mind; though I believe most intelligent lay
persons would give it very short shrift. It is indeed ironic that the
jurisdictional clause of a Convention whose whole purpose is to control
international terrorism over aircraft, should be thus employed, it seems
successfully, to afford protection to persons alleged to have been involved
in such terrorism who are nationals and officials of a State also alleged
itself to have been thus involved. It seems extraordinary to interpret the
Convention in such a way that a State, itself alleged to have been involved
in the terrorist act, should have the sole right to try its own intelligence
agents alleged to have carried out the crime. This is not only to nullify in
this case the very purpose of the Convention, but also to fly in the face of
common sense. I can only regret exceedingly that this Court has succumbed to
the temptations so skilfully laid in its path.
The Question of Admissibility
If the Court had taken what I regard to be both the correct view and the
wiser view, on the question of jurisdiction, there would have been no need
in its Judgment to enter upon the rather less firm ground of admissibility.
But in view of the Court's stance it is necessary to say something about
this question.
Before entering upon the main substance of the admissibility argument, I
wish first to look at the narrower, technical but at first sight puzzling
Article 79, paragraph 7, of the Court's Rules, which, in a subsection headed
"Preliminary Objections", provides:
"7. After hearing the parties, the Court shall give its decision in the form
of a judgment, by which it shall either uphold the object-[p 106] tion,
reject it, or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary character. If the
Court rejects the objection or declares that it does not possess an
exclusively preliminary character, it shall fix time-limits for the further
proceedings."
The puzzling aspect of this is the phrase "exclusively preliminary
character". It is well known that this phrase was a reaction to what
happened in the 1966 South West Africa cases (I.C.J. Reports 1966, p. 6),
and in the Barcelona Traction, Light and Power Company Limited case (I.C.J.
Reports 1970, p. 3), But trying to provide against bad cases makes bad law.
And, unfortunately, it is not easy to find any preliminary objection that
can be said to be, in absolute terms, of an exclusively preliminary
character. Even the question of jurisdiction, ordinarily regarded as being
unquestionably preliminary, does, probably as often as not, require some
excursion into the merits; as indeed did that question in the present case.
The questions of admissibility, lack of object and the like in the present
case have, certainly in the arguments of both Parties, provoked very
considerable excursions into the merits of the case. The question,
therefore, arises whether that preliminary objection can be dealt with very
simply by deciding that it is not "exclusively" of a preliminary character;
though it is interesting that Libya was far from being content to rely on
this possibility.
It is reasonable, therefore, to ask what is the rationale for taking
certain pleas as preliminary matters. After all, all courts do it as a
matter of course. The reason for doing so is surely that there are certain
defences which, if they be accepted, result in the dismissal of the whole
case there and then; so there is then no need to "fix time-limits for the
further proceedings". Common sense demands, therefore, that such questions
are examined first as "preliminary objections".
But what about the word "exclusively" — a strong word — in Article 79,
paragraph 7, of the Court's Rules? Fortunately, the term is not there used
without qualification. It is qualified by the phrase, "does not possess, in
the circumstances of the case, an exclusively preliminary character"
(emphasis added). It1 seems reasonable, therefore, to interpret "exclusively
preliminary character" as referring to the quality of those pleas in a given
case which, if accepted, signal the end of the case, and thus actually
excluding the possibility of a merits stage.
This way of viewing the matter would appear to have been tacitly assumed by
both Parties in the case; for those very considerable excur-[p 107]sions
into the merits during the oral proceedings both indicate that this
inadmissibility plea is not exclusively preliminary in character in any
literal or absolute sense, but, nevertheless, a finding that the case is not
admissible would have been the end of the matter.
It is thus necessary, at the outset of this admissibility question, to
examine the meaning of "exclusively preliminary character" because though it
is clearly tempting just to dispose of the admissibility argument by
deciding that the inadmissibility objection is not an "exclusively"
pre-liminary matter, this would be to incur the risk of this riposte being
usable against almost any party in any case wishing to enter a preliminary
objection to the exercise of jurisdiction.
It could no doubt be argued, on the other hand, that, if a plea be so
intimately connected with the merits as the present Appellant evidently
appeared to assume, there could be something to be said for examining the
admissibility plea along with a full merits argument. But where the
preliminary objection has already been entertained and heard, that argument
is self-defeating. I am for these reasons unable to go along with the Court
in using the drafting of Article 79, paragraph 7, of the Rules, to dispose
of these preliminary objections, whether to jurisdiction or admissibility,
on this highly legalistic and juridically doubtful ground.
**
We may now turn to what the Court decides on the substance of the
admissibility plea.
The Court rightly says that the principal argument of the United Kingdom is
that:
"the issue or issues in dispute between it [Libya] and the United Kingdom
are now regulated by decisions of the Security Council, taken under Chapter
VII of the Charter of the United Nations, which are binding on both Parties
and that (if there is any conflict between what the resolutions require and
rights or obligations alleged to arise under the Montreal Convention) the
resolutions have overriding effect in accordance with Article 103 of the
Charter" (see paragraph 41 of the Judgment).
The Court deals with this objection — apart, that is, from the Article 79 of
the Rules point mentioned above — by an argument based upon the Court's
decision in Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility (I.C.J. Reports 1988, p. 95, para. 66), that
"The critical date for determining the admissibility of an application is
the date on which it is filed." And it is of course true that the Security
Council resolutions 748 (1992) and 883 (1993), made under Chapter VII, were
made after the date of the Libyan Application in this case. This situation
the Court regards as definitive and on that basis rejects the United
Kingdom's pleading in this regard. [p 108]
It is important, however, to note that the words cited by the Court from the
Armed Actions case, are qualified by the remainder of the paragraph which
is as follows:
"It may however be necessary, in order to determine with certainty what the
situation was at the date of filing of the Application, to examine the
events, and in particular the relations between the Parties, over a period
prior to that date, and indeed during the sub-sequent period. Furthermore,
subsequent events may render an application without object, or even take
such a course as to preclude the filing of a later application in similar
terms." (Border and Trans-border Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para.
66.)
It appears from the Judgment in the present case that the Court regards the
critical-date-of-the-application rule as applicable to controlling
admissibility cases in general; and indeed only just manages to avoid a
circular argument defining the very plea of inadmissibility in terms of this
critical date rule; so that the way to avoid getting enmeshed with this rule
is apparently to enter a plea which cannot be regarded as, or at any rate is
not called, one of "admissibility".
But there is a serious argument of substance which, in the opinion of the
writer, the decision of the Court applying that rule to the United Kingdom
inadmissibility objection has to encounter. One is bound to ask oneself
whether the Court has fully appreciated and weighed the gravity of a
decision to subject to the application-critical-date rule, an
inadmissibility plea based squarely upon a decision of the Security Council
under Chapter VII, and involving the peace-keeping operations of the
Security Council. One must always have in mind other possible future cases.
The practical effect of this decision is to establish an available procedure
for delaying or frustrating decisions of the Security Council made in its
peace-keeping capacity, is indeed to bring about a grave modification of the
juridical and political scheme of the United Nations Charter, which the
Court itself, as the Organization's principal judicial organ, is there, one
might have supposed, to declare, explain and protect.
There is, however, another part of the Judgment over the non-admis-sibility
defence to be considered; and that is the treatment of what is in effect the
United Kingdom's fall-back position, that the case has, in consequence of
the Security Council resolutions, become "without object", or "no case", or
"moot"; these being different ways of expressing this particular objection.
This, according to the Court, is no longer an "admissibility" matter and so
not subject to the rule of the time-of-application critical date; though
whether it could be equally expressed in the reverse, [p 109] that it is not
an admissibility question because it is not controlled by that critical date
is far from clarified by the reasoning of the Judgment.
The Court, however, reaches the same conclusion as before, by now applying
another equally artificial and legalistic consideration: the strict, literal
or absolute interpretation of Article 79, paragraph 7, of the Rules of
Court. This has already been looked at above. Nevertheless it must be added
that the conclusion of the Court on this matter also, which is really, and
in its substance, just another way of putting the inadmissibility argument,
is open to the same grave objections as those expressed above in regard to
the Court's decision under the admissibility heading. It seems unfortunate
to say the least, that a preliminary objection involving the viability of
the peace-keeping provisions of the Charter of the United Nations should be
dealt with on the basis of a legalistic argument grounded not in the Charter
of the United Nations but in an interpretation of a somewhat controversial
word — "exclusively" — in Article 79 of the Court's Rules.
**
This case has also raised a question of basic principle of great importance
which has been referred to in argument but which the present Judgment
studiously avoids: the relationship between the respective competences of
the Security Council and of the International Court of Justice as the
"principal judicial organ of the United Nations". The Court in its Judgment
has no doubt relegated this to the merits stage. It seems right, however, in
this opinion to state one's present views on the question which in fact
underlies every stage of this case; including the interim measures stage in
1992.
In every system of government there are political organs which make
decisions on the basis of what may broadly be called political reasons; and
there are courts and other judicial tribunals which make decisions on the
basis of the interpretation and application of rules of law. Both kinds of
decision are necessary in any civilized society governed by the rule of law.
Neither kind of decision can be said to be per se superior to the other
kind; they should rather be complementary.
But the different kinds of organs, political and judicial, may find
themselves called upon to deal with the same matter, or different aspects
of the same matter. How is the relationship between the two different organs
and their respective decisions to be ordered? In a society governed by the
rule of law this relationship is to be resolved according to the relevant [p
110] principles and rules of constitutional and administrative law. It is
precisely the lot of a court of justice to apply those principles and
rules; as indeed has happened in this case. So, the task of the Court in
this case, as I see the matter, is simply to apply international law.
The first principle of the applicable law is this: that all discretionary
powers of lawful decision-making are necessarily derived from the law, and
are therefore governed and qualified by the law. This must be so if only
because the sole authority of such decisions flows itself from the law. It
is not logically possible to claim to represent the power and authority of
the law and, at the same time, claim to be above the law.
That this is true of the United Nations Security Council is clear from the
terms of Article 24, paragraph 2, of the Charter:
"2. In discharging these duties the Security Council shall act in accordance
with the Purposes and Principles of the United Nations. The specific powers
granted to the Security Council for the discharge of these duties are laid
down in Chapters VI, VII, VIII, and XII."
I therefore wholly agree with the Libyan argument that the Security Council
decisions and actions should in no wise be regarded as enjoying some sort of
"immunity" from the jurisdiction of the principal judicial organ of the
United Nations; though I ought perhaps to add that the United Kingdom
argument made no such claim.
In this kind of situation it seems to me that the Court is, according to the
Charter, to act always as the "principal judicial organ of the United
Nations". In short, the Court must administer and apply the law. This
entails taking account of the applicable United Nations law; and that
includes taking fully into account Articles 24, 25, 28, 39, 48 and 103 of
the United Nations Charter. This must involve declaring, interpreting,
applying and protecting the law of the United Nations as laid down in no
uncertain terms by the Charter.
When, therefore, as in the present case, the Security Council, exercising
the discretionary competence given to it by Article 39 of the Charter, has
decided that there exists a "threat to the peace", it is not for the
principal judicial organ of the United Nations to question that decision,
much less to substitute a decision of its own, but to state the plain
meaning and intention of Article 39, and to protect the Security Council's
exercise of that body's power and duty conferred upon it by the law; and to
protect the exercise of the discretion of the Security Council to "decide
what measures not involving the use of armed force are to be employed to
give effect to its decisions". [p 111]
Furthermore, when the Security Council moved into its powers under Chapter
VII of the Charter, it "decided certain issues pertaining to the Lockerbie
disaster with binding force" (Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of
14 April 1992, I. C.J. Reports 1992, p. 26, separate opinion of Judge
Lachs). There can be no doubt about that, for Article 25 of the Charter so
provides. Moreover this competence is reasonable and necessary for the body
that has been given "primary responsibility for the maintenance of
international peace and security" (Art. 24); and this precisely "to ensure
prompt and effective action by the United Nations".
There has been some talk amongst the commentators of the possibilities of
some kind of power of "judicial review" by the International Court of
Justice; though it should be borne in mind that the Court itself denied the
possession of such powers in the Namibia case (Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 45, para. 89). Undoubtedly there are many difficult
and as yet unresolved juridical questions that are bound to arise when
organs such as this Court and other organs of the United Nations find
themselves called upon to perform what have usefully been called "parallel
functions" (see Judge Skubiszewski's illuminating article on "The
International Court of Justice and the Security Council", in Fifty Years of
the International Court of Justice, 1996, p. 606).
That there is no power of judicial review of Security Council decisions
under Chapter VII of the Charter is not merely because of the dictum of the
Court in the Namibia case. The position is established by the provisions of
the Charter itself. Moreover it is evident from the records of San Francisco
that a power of judicial review was proposed and rejected by the drafting
conference. The Court is not a revising body, it may not substitute its own
discretion for that of the Security Council; nor would it in my view be a
suitable body for doing that; nor is the forensic adversarial system suited
to the making of political decisions.
The legal position is therefore to my mind very clear. The function of the
principal judicial organ of the United Nations is to apply the law laid down
in the Charter of the United Nations. The Security Council is given primary
responsibility for the maintenance of the peace; its decisions under Chapter
VII are binding decisions, and all Members of the United Nations have agreed
to carry them out; and Article 103 provides that obligations under the
Charter shall prevail in the event of a "conflict" between those
obligations. [p 112]
The law of the Charter is the law which the Court should, above all, respect
and apply in this case. The Court should not allow itself to be persuaded
otherwise by skilled and worldly-wise advocacy, which seems to have been
remarkably successful in persuading the Court to forget the cardinal fact
that this is a case where the applicant Government is alleged to be
implicated in the terrorist act, and that this is a situation with which the
Montreal Convention does not even purport to deal.
**
But a problem remains. Very many of these matters which arise in relation
to the question of admissibility are also highly relevant to the merits. In
fact, as already mentioned above, most if not all of them will certainly
appear again at some length in the arguments at the merits stage.
Accordingly, quite apart from the difficulties arising from the
infelicities of the drafting of Article 79, paragraph 7, of the Rules, is
there not something to be said for leaving all these matters raised under
admissibility to be dealt with at the merits stage; as the majority of the
Court has indeed decided?
In my opinion it would have been right for the Court to have disposed of all
these questions at this preliminary stage. The first reason is that, as has
been pointed out above, the relevant law to be applied is beyond doubt; and
the truth is that the Court has now already heard all these questions argued
by the applicant Government at considerable length in 1992 as well as in the
two weeks of hearings in the present phase. The main reason, however, which
I consider of great theoretical and practical importance, I can best express
by quoting from the separate opinion of Judge Lachs in the Court's Order of
14 April 1992 (see Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Provisional Measures, I.C.J. Reports
1992, p. 26). There, speaking of the "issues of concurrent jurisdiction as
between the Court and a fellow main organ of the United Nations", he
continued :
"In fact the Court is the guardian of legality for the international
community as a whole, both within and without the United Nations. One may
therefore legitimately suppose that the intention of the founders was not to
encourage a blinkered parallelism of functions but a fruitful interaction."
There might be thought to be room for the view that the permitting by the
Court of what promises to be six or seven years of litigation, in three
separate phases, over the legal effect of resolutions of the Security [p
113] Council made under Chapter VII of the Charter, is something short of a
"fruitful interaction".
Moreover, one must also think of the effect of this decision on other
possible cases. There are other multilateral conventions besides Montreal,
which might lend themselves to hobbling litigation about United Nations
action to maintain or restore the peace. Nor indeed need the risk be
confined to multilateral conventions. One thinks of the dangers to United
Nations sanctions measures from the possible use of treaties of Friendship
and Commerce and their jurisdiction clauses, once the meaning and effect of
Article 103 of the Charter is called in question. The deci-sion of the Court
in the present case, provides a vade mecum and precedent for those who
might wish to delay United Nations action by a miasma of legalistic
activity. There are other conventions, besides the Montreal Convention, that
might lend themselves in other and future circumstances, to similar
legalistic, and politically profitable employment to frustrate the Security
Council in the performance of its Charter functions; and it should be
remembered that the Security Council may, in certain circumstances, have to
act very quickly. This possibility was of course foreseen by the drafters of
the Charter when they drafted Article 103 with these possibilities in mind.
For all these reasons, I am of the view that the Court, given that it has
been persuaded that it has jurisdiction, ought certainly to have found this
claim inadmissible. I regret exceedingly a decision which, seen in a
general perspective and quite apart from the particular circumstances of
the present case, seems to me to be an unwise one for the Court to have
made.
(Signed) R. Y. JENNINGS.
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