Summary of the Judgment of 27 February 1998

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971
MONTREAL CONVENTION ARISING IFROMTHE AERIAL INCIDENT AT

LOCKERBIE (ILIBYANARAEIJAMAHIlRIYA v. UNITED KINGDOM)
(PRELIMINARY OBJECTIONS)

Judgment of 27 :February1998

111its Judgnlent on the preliminary objections raised by (2)(a) by twelve votes to four, I-ejectsthe objection
the United Kingdom in the case concerning Questions of to admissibility derived by the United Kingdom from
Interpretation and Application of the 1971 Montreal SecurityCouncilresolutions748 (1992)and 883 (1993);
Convention arising from the Aerial Incident at Lockerbie IN FAVOUR: Vice-President Weeramantry, Acting
(Libyan Arab Jainahiriya 17.United Kingdom), the Court President; Judges Bedjaoui, Guillaume, Ranjeva, Shi,
found that it hadurisdictioto deal with the merits of the
Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,
case brought by Libya against the United Kingdom Kooijmans,Rezek;Judge ad hoc El-Kosheri;
conceinillg the aerial incident at Lockerbie. It also found AGAINST: President Schwebel; Judges Oda,
that the Libyanclaims wereadmissible. Herczegh;Judge ad hoc SirRobertJennings;
The Court was composed as follows in the case: Vice-
President Weerainant~y, Acting President; President (b)by twelvevotes to four,j%~dsthat the Application
Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, filedby Libyaon 3 March 1992is admissible.
IN FAVOUR: Vice-President Weeramantry, Acting
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,arra- President; Judges Bedjaoui, Guillaume, Ranjeva, Shi,
Aranguren, Kooijmans, Rezek; Judges ad hoc Sir Robert Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,
Jennings,El-Kosheri;RegistrarValencia-Ospina. Kooijmans,Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda,
Herczegh;Judge ad hoc SirRobert Jennings;
(3) by ten votes to six, declares that the objection
The complete text of the operative paragraph of the raised by the United Kingdom according to which
Judgmentreads as follows: Security Council resolutions 748 (1992) and 883 (1993)
"53. For thesereasons:
have rendered the claims of Libya without object does
THE COURT, not, in the circumstancesof the case,have an exclusively
(1) ((1by thirteen -votes to three, rejects the preliminarycharacter.
objection to jurisdiction raised by the United Kingdom IN FAVOUR: Vice-President Weeramantry, Acting
on the basis of the alleged absence of a dispute between President; Judges Bedjaoui, Ranjeva, Shi, Koroma,
Vereshchetin, Parra-Aranguren, Kooijmans, Rezek;
the Parties concerningthe:interpretationor applicationof
the Montreal Conventionof 23 September 1971; Judge ad hoc El-Kosheri;
IN FAVOUR: Vice-President Weeramanhy, Acting AGAINST: President Schwebel; Judges Oda,
President; Judges Becljaoui, Guillaume, Ranjeva, Guillaume, Herczegh, Fleischhauer; Judge ad hoc Sir
Herczegh, Shi, Fleischhauer, Koroina, Vereshchetin, RobertJennings."
Paira-Aranguren, Kooijrnans, Rezek; Judge ad hoc
El-Kosheri;

AGAINST: President Schwebel; Judge Oda; Judge
ad hoc SirRobertJennings; Judges Bedjaoui, Guillaume and Ranjeva appended a
(b) by thirteen votes to three$rids that it has joint declaration to the Judgment of the Court; Judges
jurisdiction, on the basis of Article 14, paragraph 1, of
Bedjaoui, Ranjeva and Koroma appended a joint
the Montreal Conventionof 23 September 1971,to hear declaration;Judges Guillaumeand Fleischhauerappendeda
the disputes between Libya and the Unitedlingdomas joint declaration; Judge Herczegh appended a declaration.
to the interpretation or application of the pr~wisionsoJudges Kooijmans and Rezek appended separate opinions.
that Convention; President Schwebel,Judge Oda andJudge ad hoc SirRobert
IN FAVOUR: Vice-E'residentWeeramantry, Acting Jennings appendeddissentingopinions.
President; Judges Becljaoui, Guillaume, Ranjeva,

Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Paira-Aranguren, Kooijrr~ans,Rezek; Judge ad hoc El-
Kosheri;
AGAINST: President Schwebel; Judge Oda; Judge
ad hoc SirRobert Jennings;Review of the pi.oceedings and szlbrnissions it lacksjurisdiction over the claiins brought against the
(paras. 1-16) IJnited Kingdomby the LibyanArab Jamahiriya
In its Judgment, the Court recalls that on 3 March 1992
those claiinsare inadmissible;
Libya filed in the Registry of the Court an Application
instituting proceedings against the United Kingdom in and that the Court dismiss the Libyan Application
respect of a "dispute between Libya and the United accordingly ."
Kingdom concerningthe interpretationor applicationof the lhe final submissionsof Libya were as follows:
Montreal Convention" of 23 September 1971 for the "The Libyan Arab Jamahiriya requests the Court to
Suppression of Unlawful Acts against the Safety of Civil
Aviation (hereinafter called "the Montreal Convention"). adjudgeand declare:
The Applicationreferredto the destruction,on 21 December -- that the Preliminary Objections raised by the United
Kingdom ... must be rejected and that, as a
1988,over Lockerbie (Scotland), of the aircraft on Pan Am consequence:
flight 103,and to charges brought by the Lord Advocate for
Scotland in November 1991 against two Libyan nationals (a) the Court has jurisdiction to entertain the
suspected of having caused a bomb to be placed aboard the Applicationof Libya;
aircraft, which bomb hadexploded causing the aeroplane to (h) that the Applicationis admissible;
crash. The Application invoked as the basis forjurisdiction -- that the Court should proceedto the merits."
Article 14,paragraph 1,of the MontrealConvention.

On 3 March 1992, immediately after the filing of its Juri,sdiction of tlte Court
Application, Libya submitted a request for the indication of (paras. 17-39)
provisional measures under Article 41 of the Statute. By an
Order dated 14 April 1992, the Court, after hearing the l'he Court first considers the objection raised by the
Parties, found that the circumstances of the case were not United Kingdomto itsjurisdiction.
Libya submitsthat the Courthasjurisdiction on the basis
such as to require the exercise of its power to indicate of Article 14, paragraph 1, of the Montreal Convention.
provisionalmeasures. whichprovidesthat:
Libya filed a Memorial on the merits within the
prescribed time limit. In the Memorial Libya requests the "'Anydispute between two or more Contracting States
Court to adjudgeand declare: concerning the interpretation or application of this
Conventionwhich cannot be settled throughnegotiation,
"(a) that the Montreal Convention is applicable to shall. at the request of one of them, be submitted to
this dispute; arbitration. If within sixmonths from the date of the
(b) that Libya has fully complied with all of its request for arbitration the Parties areable to agree on
obligations under the Montreal Convention and is
justified in exercising the criminaljurisdiction provided the organization of the arbitration, any one of those
forby that Convention; Parties may refer the dispute to the International Court
of Justice by request in conformity with the Statute of
(c) that the United Kingdom has breached, and is the Court."
continuingto breach, its legal obligationsto Libyaunder The Parties agree that the Montreal Convention is in
Article 5, paragraphs 2 and 3, Article 7, Article 8, force between thein and that it was already in force both at
paragraph 3, andArticle 11of the MontrealConvention;
(4 that the United Kingdom is under a legal the time of the destruction of the Pan Am aircraft over
Lockerbie, on 21 December 1988, and at the time of filing
obligation to respect Libya's right not to have the of the Application, on 3 March 1992. However, the
Convention set aside by means which wouldin any case Respondentcontests thejurisdiction of the Courtbecause,in
be at variance with the principles of the United Nations its submission, all the requisites laid down in Article 14,
Charter and with the mandatory rules of general paragraph 1, of the Montreal Convention have not been
international law prohibiting the use of force and the compliedwith inthepresent case.
violation of the sovereignty, territorial integrity,
sovereignequality andpolitical independenceof States." The Respondent expressly stated that it did not wish to
contest the jurisdiction of the Court on all of the same
Within the time limit fixed for the filing of its Counter- grounds it had relied upon in theprovisionalmeasuresphase
Memorial, the United Kingdom filed Preliminary of the proceedings, and restricted itself to alleging that
Objections to the jurisdiction of the Court and the Libya had failed to show, first, that there existed a legal
admissibility of the Application. Libya for its part, filed a dispute between the Parties and second,that such dispute, if
written statementof its observationsand submissionson the
Preliminary Objections within the time limit fixed by the any, concerned the interpretation or application of the
Montreal Convention and fell, as a result, within the terms
Court.Hearingswere held between 13and 22 October 1997. of Article 14, paragraph 1, of that Convention.
At the hearing the United Kingdom presented the Consequently, the United Kingdom did not, in the present
followingfinal submissions: phase of the proceedings. reiterateits earlier arguineiltsas to
"[Tlhe Court [is requested to] adjudge and declare whether or not the dispute that, .in the opinion of Libya,
existed between the Parties could be settled by negotiation;
that:whether Libya had made a proper request for arbitration; him, be obliged, without exception whatsoever and
and whether the six-month period required by .4rticle 14, whether or not the offence was committed in its
paragraph 1,of the Conventiclnhad been complietlwith. territory, to submit the case to its competent authorities

The Court nonetheless c:onsidersit necessary to deal for the purpose of prosecution. Those authorities shall
briefly with these arguments. Having examined them the take their decision in the same manner as in the case of
Court concludesthat the alleged disputebetween the Parties any ordinaryoffenceof a seriousnatureunder the law of
could not be settled by negotiation or submitted to that State."
arbitration under the Montre.alConvention, and the refusal

of the Respondent to enter :intoarbitration to r1:solvethat Existeilce of a specijic dispute concemirzg Article 11 of
dispute absolved Libya from anyobligation uil~lerArticle the Convertti011
14,paragraph 1. of the Convention to obseive a six-month (paras. 30-33)
period starting from the request for arbitration, before
seizing;the Court. Furthermore, having taken account of the positions of
the Parties as to the duties imposed by Article 11 of the
MontrealConvention,the Courtconcludesthat there equally
EA-iste.rlcoj'a legal disp~rteof a geizeral rtature exists ,between them a dispute which concerns the
colzcer~liilgthe Cortverttiol1 interpretation and application of that provision, and which,
(paras. 22-25)
in accordance with Article 14, paragraph 1, of the
In its Application and Memorial, Libya maintained that Convention,falls to be decidedby the Court.
the MontrealConventionwas the only instruinentapplicable Article 11is wordedas follows:
to the destiuction of the Pan Am aircraftoverLockerbie. "Article 11

The United Kingdom does not deny that, a:; such, the 1. Contracting States shall afford one another the
facts of the case could fall within the terms of the Montreal greatest measure of assistance in connection with
Convelation. However, it en~phasizesthat, in the present criminal proceedings brought in respect of the offences.
case, fi-omthe time Libya invokedthe Montreal C'onvention, The law of the Staterequestedshallapplyin allcases.
the United Kingdom has claimedthat it was not relevant as
the questionto be resolved had to do with "the ..reactionof 2. The provisions of paragraph 1 of this Article shall
not affect obligationsunder any other treaty, bilateral or
the international coinmunity to the situation arising from multilateral, which governs or will govern, in whole or
Libya's failure to respond effectively to the most serious inpart, mutual assistancein criminalmatters."
accusationsof State involvementin acts of terrori:smW.
The Court finds that con:;equently,the Parties differ on
the question whether thedeslruction of the Pan Am aircraft Lawjklrtess of the actions of the Respondent
(paras. 34-36)
over Lockerbie is governed by the Montreal Convention.A
dispute thus exists betweenthe Parties as to the1e:garlegime With respectto the last submissionof Libya (see above,
applics~bleto this event. Such a dispute, in the view of the sub~nission (d) of the Memorial), the United Kingdom
Court, concerns the interpretation and applicatioil of the maintains that it is not for the Court, on the basis of Article
Montreal Convention, and, in accordance with Article 14, 14, paragraph 1,of the Montreal Convention, to decide on
paragraph 1, of the Convention, falls to be decided by the the lawfulness of actions which are in any event in

Court. conformitywith internationallaw, andwhich were instituted
by the Respondent to secure the surrenderof the two alleged
Existerlce qj'n syeciJic disyvte colzcerning Arti'cle 7 of offenders. It concludes from this that the Court lacks
the Colrvel1tiolt jurisdiction over the submissionspresented on this point by
Libya.
(paras. 26-29)
Thl:Court findsthat in view of the positionsput forward The Court points out that it cannot uphold the line of
by the Parties with respect to the rights and obligations argument thus formulated. Indeed, it is for the Court to
decide, on the basis of Article 14, paragraph 1, of the
which Articles 1, 5, 6, 7 and 8 of the Convenrion would Montreal Convention, on the lawfulness of the actions
entail for them,there exists betweenthem not onlya dispute criticized by Libya, insofar as those actions would be at
of a general nature, as defined above, but also a specific variancewith the provisionsof the MontrealConvention.
dispute which concerns the interpretationand a* Acation of
Article:7 - read in conjunc:tionwith Article 1, Article 5,
Article:6 and Article 8 - of'the Convention ant1which, in Eflect of the resolutioits oj'the Security Courtcil
(paras. 37-38)
accordancewith Article 14.paragraph 1,of the C'onvention,
fallsto.be decidedby the Coiut. In the present case, the United Kingdomhas contended,
Article 7 is worded inthe followingterms: however, that even if the Montreal Convention did confer
on Libya therights it claims, they could not be exercised in
"Article 7 this case because they were supersededby SecurityCouncil
The Contracting State in the territoiy of which the
alleged offender is founclshall, if it does not extradite resolutions 748 (1992) and 883 (1993) which, by virtue of
Articles 25 and 103 of the United Nations Charter, havepriority over all rights and obligations arising out of the shouldtherefore exercise its powerto declarethe Libyan
Montreal Convention.The Respondenthasalso argued that, Applicationinadmissible".

because of the adoption of those resolutions, the only For its part, Libya arguesthat it is clear from the actual
disputewhich existedfrom thatpoint on was betweenLibya terms of resolutions731 (:1992),748 (1992)and 883 (1993)
and the Security Council; this, clearly, would not be a that the Security Council hasnever required it to sun-ender
dispute falling within the terms of Article14, paragraph 1, its nationals to the UnitedKingdomor the United States:it
of the Montreal Convention and thus not one which the stated at the hearing that this remained "Libya's principal
Court couldentertain. argument". It added that the Court must interpret those

The Court finds that it cannot uphold this line of resolutions "in accordance with the Charter, which
argument. Security Council resolutions 748 (1992)and 883 determined their validity" and that theCharter prohibited
(1993) were in fact adopted after the filing of the the C:ouncilfrom requiring Libya to hand over its nationals
Application on 3 March 1992. In accordance with its to the United Kingdom or the United States. Libya
established jurisprudence, if the Court hadjurisdiction on concludes that its Application is admissible"as the Court
that date, it continuesto do so; the subsequent cominginto can usefullyrule on the interpretationand applicationof the
existence of the above-mentioned resolutions cannot affect MontrealConvention ..independentlyof the legal effectsof

itsjurisdiction once established. resolutions 748 (1992) and 883(1993)". Libya furthe~more
drawsthe Court's attentionto the principlethat "The critical
date for determining the admissibility of an application is
In the light of the foregoing,the Court concludesthatthe the date onwhichit is filed".
I11the view of the Court, this last submission of Libya
objection to jurisdiction raised by the United Kingdomon must be upheld. The date, 3 March 1992,on which Libya
the basis of the alleged absenceof a dispute between the
Parties concerning the interpretation or application ofthe filed its Application, is in fact the only relevant date for
Montreal Conventionmust be rejected, and that the Court determining the admissibility of the Application. Security
has jurisdiction to hear the disputesbetween Libyaand the Council resolutions 748 (1992) and 883 (1993) cannot be
United Kingdomas to the interpretationor applicationof the taken into consideration in this regard since they were
provisionsof that Convention. 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 impedimentto the admissibility of
Admissibility oj'tlze Libya11Applicatioit
(paras. 40-45) the latter because it was a mere recominendation without
binding effect, as was recognized moreoverby the United
The Court will now proceedto consider the objectionof Kingdom itself. Consequently, Libya's Application cannot
the United Kingdom that the Libyan Application is not be heldinadmissibleonthese grounds.
admissible. In the light of the foregoing, the Court concluded that
The principal argument of the United Kingdom inthis the objection to admissibility derived by the United
contextisthat
Kingdomfrom Security Council resolutions 748 (1992)and
"what Libya claims to be the issueor issues in dispute 883 (1993)mustbe rejected, andthat Libya's Applicationis
between it and the United Kingdom are now regulated admissible.
by decisions of the Security Council, taken under
Chapter VII of the Charter of the United Nations, which Objection tlzntthe Applicailt 5.claims are ~vithocltobject
are binding on both Parties and that (if there is any (paras. 46-5 1)
conflict between what theresolutions require and rights
In dealing with admissibility, the Agent of the United
or obligations alleged to arise under the Montreal Kingdomalso statedthat his Government"ask[ed]the Court
Convention) the resolutions have overriding effect in to mle that the intervening resolutions of the Security
accordancewith Article 103of the Charter".
Inthis connection,the United Kingdomexplainsthat CouncilhaverenderedtheLibyanclaimswithoutobject".
The Court notes that it has already acknowledged, on
"resolutions 748 and 883 are legally bindingand they several occasions in the past, that events subsequent to the
create legal obligations for Libya and the United filing of an applicationmay "render an application without
Kingdom which are determinative of any dispute over object" and"therefore the Court is not calledupon to give a
which the Courtmighthavejurisdiction".
According to the United Kingdom, those resolutions decision thereon". In the present case, the United Kingdom
require the surrender of the two suspects by Libya to the puts forwardan objectionaimed at obtainingfrom theCourt
a decision not to proceed to judgment on the merits, which
United Kingdom or the United States for trial, and this objection must be examined within the framework of this
determinationby the Security Council is binding on Libya jurisprudence.
irrespective of any rights it may have under the Montreal The Court must satisfy itself that such an objection does
Convention. On this basis, the UnitedKingdom maintains
that indeed fall within the provisions of Article79 of the Rules,
relied upon by the Respondent.In paragraph 1, this Article
"the relief which Libya seeks from the Couit under the refers to "Any objection..to thejurisdiction ofthe Court or
Montreal Conventionis not open to it, and thatthe Courtto the admissibility of the application, or other objection" The Court therefore has no doubt that Libya's rightson
(emphasisadded);its field of applicationrationerxateriaeis the merits would not only be affected by a decision, at this
thus not limitedsolelyto objectionsregarding juri:sdictionor stage of the proceedings, not to proceed tojudgment on the

admiss:ibility.However, if it is to be covered by Article 79, merits, but would constitute. in many respects, the very
an objtxtion must also possess a "preliminary" character. subject matter of that decision. The objection raised by the
Paragraph 1 of Article 79 of the Rules of Court United Kingdomon thatpoint has the characterof a defence
characterizes as bbpreliminaq7" an objection ''tho:decision on the merits.
upon which is requested befbre any further proceedings". The Court notes furthermore that the United Kingdom
The Court considers in this respect that, insofar as the itself broached manysubstantiveproblems in its written and
purpose of the objection raised by the United Kingdomthat
there is no ground for proceedingtojudgment on the merits oral pleadings in this phase, and pointed out that those
problems had been the subject of exhaustive exchanges
is, effectively,to prevent, in liimine,any considerationof the before the Court; the United Kingdom Government thus
case on the merits, so that its "effect [would] be, if the implicitly acknowledged that the objection raised and the
objection is upheld, to interrupt further proceedings in the meritsof the case were "closely interconnected".
case", and "it [would]therefore be appropriatefor the Court The Court concludes that if it were to rule on that
to deal with [it] before enquiring into the merits". this
objectionpossesses a preliminary character and does indeed objection, it would therefore inevitably be ruling on the
fall within the provisions o:FArticle 79 of the Rules of merits; in relying on the provisions of Article 79 of the
Rules of Court, the Respondent has set in motion a
Court. It notes moreover that the objection concerned was procedure theprecise aim of which is to prevent the Court
duly submitted in accordance with the formal conditions froinso doing.
laiddown inArticle 79. The Court concluded from the foregoing that the
Lib:yadoes not dispute any of these points. What Libya
contends is that this objection falls within the category of objection of the United Kingdom according to which the
those which paragraph 7 of Article 79 of the Ru1e.sof Court Libyan claiills have been rendered without object does not
have "an exclusively preliminary character" within the
characterizes as objections "not possess[ing:l, in the meaningof that Article.
circum:jtances of the case, an exclusively preliminary Having established its jurisdiction and concluded that
character". the Application is admissible,the Court will be able to
On the contrary, the United Kingdomconsiders that the
objection concerned possesses an "exclusively preliminary consider this objection when it reaches the merits of the
character" withinthe meaning of that provision; ;and,at the case.
The Court finally specified that, in accordance with
hearing, its Agent insistedon theneed for the Courtto avoid Article 79, paragraph 7, of the Rules of Court, time limits
any proceedings on the merits, which to his mind were not for the furtherproceedingsshallbe fixedsubsequentlyby it.
only "1-ikelyto be lengthy and costly" but also, byvirtue of
the difficulty that "the handling of evidentiary material...
might raise seriousproblems". Joint declaration of JzrdgesBedjaozli, Gzlillaume
The Court finds that thus it is on the question of the and Runjevu

"exclusively" or "non-exclusively" preliminary cliaracterof In their declaration, Judges Bedjaoui, Guillaume and
the objection here considered that the Parties are divided; Ranjeva wondered whether, in this case, the United
and it concludes that it must thereforeascertain whether, in Kingdom was entitled to appoint a judge ad hoc to replace
the present case, the United ICingdom'sobjectioribased on JudgeHigginswho had stooddown.
the Set;urity Council decisio:nscontains "both preliminary The authors of the declaration pointed out that, in this
aspectsand otheraspects relatingto the merits"or not.
phase of the proceedings, the United States and the United
The:Court observes that .thatobjection relates to many Kingdom had made the same submissions.They concluded
aspects of the dispute. By maintainingthat SecurityCouncil from this that those two States were in the same interest.
resolutiions748 (1992) and 883 (1993) have rendered the They noted that, furthermore, the Court had given two
Libyan claims without object, the United Kingdo~nseeks to almost identical judgments. The authors of the declaration
obtain .frointhe Court a decisionnot to proceed tojudgment thereforeconsidered,on the basis of Article 37 of the Rules
on the merits, which would immediately terminate the of Court which covers the question of parties being "in the
proceedings. However, by re:questingsuch a decision, the same interest", that the UnitedKingdom was not entitled to
United Kingdom is requesting;,in reality, at least two others
appoint ajudge ad hoc in this phase of the proceedings. On
which the decisionnot to proceed tojudgment on the merits this point, they dissociated themselves from the decision
would necessarily postulate: on the one hand s decision taken by the Court.
establishing that the rights claimed by Libya under the
Montreal Convention are incompatible with its obligations Joint declaration of JzrdgesBedjaoui, Ratljeva
under the Security Council I-esolutions;and, on the other
hand, a decision that those obligations prevail over those and Koi-oma
rightsby virtue of Articles25 and 103of the Charter. Judges Bedjaoui, Ranjeva and Koroma consider that to
qualify the United Kingdom objection that the SecurityCouncil resolutions rendered the Libyan claims without shares the Court's view that this objection has not an
object as not exclusi~~elpyrelirninav and to refer it back to
exclusivelypreliminarycharacter.
be considered at the merits stage means that it is not 13e is, however, also of tlie opinion that these
sufficient to invoke the provisions of Chapter VII of the resolutions, although authoritative, have 110 filial and
Charter so as to bring to an end ips0 facto and with definitive character, and therefore cannot render tlie case
immediate effect all argument on the Security Council's moot in thepreliminaryphase.
decisions.

Separate opinion ofJudge Rezek .
Joint declaration ofJudges Guillaume and
Fleischhauer Judge Rezek deems that the Judgment wouldillore fully
convey the line of argument advancedby the Parties were it
In a joint declaration, Judges Guillaume and to devote a few lines to the subject of thejurisdictioii of
Fleischhauer have stated their views as to how the Court Court in relation to that of the political organs of the
should have dealt with the objectionof the United Kingdom Organization.
according to which "Security Council resolutions 748
(1992) and 883 (1993) have rendered the claims of Libya Ile is of the opinion that the Courthas fulljurisdiction to
without object". interpretand apply the law in a contentiouscase, even when
the exercise of such jurisdiction may entail the critical
Judges Guillaume and Fleischhauer think that the Court scrutiny of a decision of another organ of the United
could have decided on that objection without pronouncing Nations. It does not directly represent theneiilber States of
on the merits of the rights and obligations of the Parties the Organization but it is precisely because it is
under the Montreal Convention. They reach the conclusion impermeable to political injunctions that the Court is the
that the objection had an exclusively preliminary character
interpreter par excellence of the law and the natural place
and that the Court could and shouldhave takena decision as for reviewingthe acts of political organs in tlieame of the
of now. They regret that the decision on the objection has law, as is the rule in democraticregimes.
been put off and underlinethat the solutionarrivedat by the
Court runs counter to the objective of the revision in 1972 Disselitilig opinion ofPresident Schwehel
of Article 79 of the Rules of Court, i.e., the simplificationof
procedureandthe soundadministrationofjustice. In Judge Schwebel's view, the Court'sJudgtiiei~tdoes
not show (as contrasted with concluding) that the

Declaration of Judge Herczegh Respondent can be in violation of provisions of the
Montreal Convention;with the possible exceptionof Article
In his declaration, Judge Herczegh summarizes the 11of the Convention,the Court does not show that there is
reasons why he voted against paragraph 2 (a) and (b), and a dilsputebetween the Parties over such alleged violations.
against paragraph 3 of the operative part. He considers that There is disputeover the meaning,legalityand effectivencss
the Libyan claims are governed by the binding Security of the pertinent resolutions of the Security Council. That
Council resolutions which rendered the Libyan Application dispute may not be equated with a dispute under the
without object. The objection raised by the Respondent in
Convention, the sole basis of the Court's jurisdictionin the
that connection has an exclusively preliminary character. case.
The objection should therefore have been upheld and the The factthe SecurityCouncilresolutions748 (1992) and
Libyanclaimrejected. 883 (1993) were adopted after the filing of Libya's
Application is not determinative. While jurisdiction is
Separate opinion of Judge Kooijmans
normally determined as of the date of application, it need
In his separate opinion, Judge Kooijmans expresses his not invariablybe so. The cases on which tlie Courtrelies are
support for the conclusionsof the Court. He wishes to place not inpoint.
on record, however, his views with regard to a number of The Court rejects the Respondent's contention that
Libya's case is inadmissible on the sole ground that the
argumentsbrought forwardby the Parties. In his opinion the critical date for determining admissibility of an application
motives which the Applicant may have had when filing its
Application, are irrelevantto the Court whose only function is the date on which it is filed. But the single case on which
is to determine whether there is a justiciable dispute. The the Court relies is distinguishable. Moreover, that case. as
fact that a situation has been brought to the attention of the others, recognizes that events subsequent to the filing of an
Security Council and that the Council has taken action with applicationmay render an applicationwithout object.
regard to that situation can in no way detract from the In this case. SecurityCouncilresolutions 748 (1992)and

Court's own competenceand responsibility to objectively 883 (1993) supervene any rights of Libya under the
determinethe existenceor non-existenceof a dispute. Montreal Convention, and thus reader reliance upon it
With regardto the objectionthat the Libyanclaims have without object and moot. By virtue of Article 103 of the
been rendered without object or moot by Security Council United Nations Charter, decisions of the Security Council
prevail over any rights and obligations Libya and the
resolutions 748 (1992) and 883 (1993), Judge Kooijmans Respondentmay have under the MontrealConvention. The Court finds that it cannot upholdthe inootness claim that the suspects located in Libyabe surrendered to it and a
because it is not exclusively preliminaryin character under refusal by Libya to comply with that demand. No dispute
the C'ourt'sRules. But since jurisdiction in this case flows has existed between Libya and tlie United Kingdom

olily fiom tlie Montreal Convention, a plea citing "concerning the inteipretatioii or application of the
resolu.tionsof the Security Council in bar of reliance upon [Montreal] Convention" as far as the demand for the
that Conventionis of an exclusivelypreliminary character. surrender of the suspects and the refusal to accede to that
The Court's Judgmentrnay be seen as prejudicing the demand - the main issue in the present case - are
efforts of the Security Couiicil to combat terro:rismand as concerned. In Judge Oda's view,tlie Application by which
Libya instituted proceedings against the United Kingdom
appearing to offer recalcitrant Statesa means tm3parry and
flustrate its decisionsby appeal to the Court. That raises the pursuant to Article 14. paragraph 1, of the Montreal
question of whether the Cou.rtpossesses a power ofjudicial Conventionshouldbe dismissed on this sole grouiid.
review over Council decisions. If the Court's jurisdiction is denied, as Judge Oda
In Judge Schwebel's view, the Courtis not generally so believes it shouldbe, the issueof whetlierthe Application is
or is not adiilissible does not arise. He considers it
empowered, and it is partictdarlywithout power to overrule lneaniiigless to discuss tlie question of admissibility.
or undercut decisions of the Security Council#determining
whether there is a threat to,the peace and what measures However, after finding that it lias jurisdiction, the Court
shall be taken to deal witlithe threat. The Court more than continues to deal witli the question of admissibility by
once liasdisclaimedapower ofjudicial review. rejecting the objection to adiiiissibility derived by tlie
The terms of the Charter furnish no shredof support for United Kingdom fro111 SecurityCouiicilresolutions 748 and
883. Judge Oda then commented on the impact of those
such a power. In fact, they import the contrary, since,if tlie Security Council resolutions in the present case.n his view,
Court could oveirule the Council, it would be it and not the
Council which would exercise dispositive and hence if the adoption of Security Council resolutions 748 and 883
primary authority in a sphere in which the Charter accords is to be dealt with in connection with the question of
primary authorityto the Council. admissibility of the Application, it shouldbe dealt witli at
the present (preliminary) stage irrespectiveof whether this
The tenns and drafting histoly of the Charter question possesses or not an exclrr.sive1vpreliminary
demo~istratethat the Security Council issubject:to the rule character. The question of whetlier Libya's 3 March 1992
of law, and at the same time is empowered to derogatefrom Applicationhas become without object after the adoptionof
iliternational law if the maintenance of international peace
requires. It doesnot follow from the fact that the Council is these two Security Council resolutions,is totally ill-elevant
so sutgect,and that the Court is the United Nations principal to the present case. The Security Council manifestly passed
judicial organ, that the Court is authorized tosure that the those resolutions becauseit believed that Libya's refi~salto
surrender the accused constituted "threats to the peace" or
Council's decisions do accord witli law. I11many legal "breaches of the peace". Judge Oda expressed his viewthat
systems,the subjection ofthe acts of an organ to lawby no these Security Council resolutions, having a political
mean:;entails the subjectionof the legality of its actions to connotation, have nothing todo with the present case, since
judicial review. The tenor of the discussic~nsat San
Franc.iscoindicate the intention of the Charter's drafters not the case inust cover only legal mattersexisting between the
to accord the Courta power ,ofjudicial review. United Kingdom and Libya before the resolutions were
adopted.
To engraft upon tlieCharter regime a powel-of judicial If there is any dispute in this respect, it could be a
review would notbe a development but a departi~rejustified dispute between Libya and the Security Councilor between
neither by Charter terms nor. bycustomaryinternationallaw Libya and the United Nations, or both, but 11otbetween
iior by the general principles of law. It would entail the
Court giving judgment over an absentee, the Security Libya and the Uiiited Kingdom. The effect of the Security
Council, contrarytofundam1:ntaljudicial principles.It could Council resolutions upon ineiiiber States is a matter quite
give rise to the question, is a holding by the Court that the irrelevant to this case and tlie question of whether tlie
Applicationhas become without object aftertlieadoption of
Council has acted zdtr-avires a holding which of itself is those resolutionshardly arises.
1c1tr-vail-es?

Dissenting opinioiz of Judge Oda Disseittir~gopiiriorrofJudge Sir Robert Jerziiiligs
Judge Sir Robert Jennings thoughtthe Court should have
In his dissenting opinion, Judge Odabegan by stating
that tlie crux of the case before the International Court of found that it did not have jurisdiction in the case; and even
Justice is simply the different positions adopted by both if it hadjurisdiction, that the Libyan case should havebeell
Parties concerning tlie surrender of the two Libyans. dismissed as inadmissible.
Jurisdiction depended up011whether the Libyan case
presently located in Libya, who are accused of the couldbe broughtunder tlietenns of Article 14,paragraph 1,
destru.ctionof Pan Am flight 103 over Lockerbiein United
Kingdomterritory. of the Montreal Convention. A11exaiiliiiation of Libya's
What, in fact, occurred between the Uiiited Kingdom requests showed that there existed110 genuine dispute about
and Libya was siiiiply a demand by the United Kingdom tlieConvention.The true disputewasbetweenLibya and the
Security Council. Sincethe Court had found that it did havejurisdiction, it Security Council's decisions, been rendered "without
should then have found the Libyan claim inadmissible object", was rejected on the ground that this was not an
because thedispute between Libya and theUnited Kingdom objection of "an exclusively preliminary character" within
was now regulated by decisions of the Security Council the meaning of Article 79, paragraph 7, of the Court's
made under Chapter VII of the Charter and so binding on Rules. Judge Jennings wondered whether the Court had
both Parties. The Court had, however, rejected the United sufficiently weighed the gravity of dealing with a question
Kingdom's "inadmissibility" objection because the binding involving binding and peacekeeping decisions of the

Security Councilresolutionswere made after the date of the Security Council in so technical, not to say legalistic, a
Libyan Applicationto the Court; and the United Kingdom's fashion.
alternative objection that the Libyan case had, by the