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 FROM THE AERIAL INCIDENT AT
LOCKERBIE (LIBYAN ARAB JAMAHIRIYA v. UNITED STATES OF AMERICA)
(PRELIMINARY OBJECTIONS)

Judgment of 27 February 1998

In its Judgment on the preliminary objectionsraised by the Montreal Convention of 23 September 1971, to hear
the United States in the case concerning Questions of the disputes between Libya and the United States as to
Interpretation and Application of the I971 Montreal the interpretationor application of the provisions of that
Convention arising from the Aerial Incident at Lockerbie Convention;

(Libyan Arab Jamahiriya v.United States of America), the IN FAVOUR: Vice-President Weeramantry, Acting
Court found that ithadjurisdiction to deal with the merits of President; Judges Bedjaoui, Guillaume, Ranjeva,
the case brought by Libya against the United States of Herczegh, Slii, Fleischhauer, Koroma, Vereshchetin,
America concerningthe aerial incident at Lockerbie. It also Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc
found that the Libyanclaims were admissible. El-Kosheri;
The Court was composed as follows in the case: Vice-
AGAINST:President Schwebel;JudgeOda;
President Weeramantry, Acting President; President (2) (a)by twelve votes to three, rejects the objection
Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, to admissibility derived by the United States from
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,arra- SecurityCouncilresolutions 748 (1992)and 883(1993);
Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri; IN FAVOUR: Vice-President Weeramantry, Acting
RegistrarValencia-Ospina.
President; Judges Bedjaoui, Guillaurne, Ranjeva, Shi,
* Fleischhauer, Koroma, Vereslichetin, Parra-Aranguren,
* * Kooijmans,Rezek;Judge ad hoc El-Kosheri;
AGAINST: President Schwebel; Judges Oda,
The full text of the operative paragraph of the Judgment Herczegh;
is as follows:
(b) by twelve votes to three, -finds that the
"53. For these reasons: Application filed by Libya on 3 March 1992 is
THE COURT, admissible.
(1) (a) by thirteen votes to two, rejects the objection IN FAVOUR: Vice-President Weeramantry, Acting
tojurisdiction raised by the United States on the basis of President; Judges Bedjaoui, Guillaume, Ranjeva, Shi,
the alleged absence of a dispute between the Parties Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans,Rezek;Judgead hoc El-Kosheri;
concerning the interpretation or application of the
Montreal Convention of23 September 1971; AGAINST: President Schwebel; Judges Oda,
IN FAVOUR: Vice-President Weerainantry, Acting Herczegh;
President; Judges Bedjaoui, Guillaume, Ranjeva, (3) by ten votes to five,eclares that the objection
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, raised by the United States according to which the
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc
El-Kosheri; claims of Libya became moot because Security Council
resolutions 748 (1992) and 883 (1993) rendered them
AGATNST:President Schwebel;Judge Oda; without object, does not, in the circumstances of the
(b) by thirteen votes to two, .finds that it has case,have an exclusivelypreliminarycharacter.
jurisdiction, on the basis of Article 14, paragraphof

Continued on next page IN FAVOUR: Vice-President Weeramantry, Acting Article 5, paragraphs 2 and 3, Article 7, Article 8,
President; Judges Bedjaoui, Ranjeva, Shi: Koroma, paragraph3, and Article 11of the MontrealConvention;
Vereshchetin, Paira-Aranguren, Kooijmans, Rezek; (d)that the United States is under a legal obligation
Judge ad hoc El-Kosheri;
to respect Libya's right not to have the Convention set
AGAINST: President Schwebel; Judges Oda, aside by means which would inany case be at variance
Guillaume,Herczegh. Fleischhauer." 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
political independenceof States."
Judges Bedjaoui, Ranjeva.and Koroma appendedajoint
declarationto the Judgment of the Court; Judges Guillaume Within the timelimit fixed for the filing of its Counter-
and Fleischhauer appended a joint declaration to the Memorial, the United States filed Preliminary Objectionsto
the jurisdiction of the Court and the admissibility of the
Judgment of the Court; Judge Herczegh appended a Application. Libya for its pat filed a statement of its
declarationto tlie Judgment of the Court. Judges Kooijmans observations and subinissionson tliePreliminaryObjections
and Rt:zek appended separate opinions to the Judgment of
the Court. President Schweloeland Judge Oda appended within thetime limit fixedby the Court. Hearings were held
dissentingopinioiisto the Judgmentof tlieCourt. between 13and 22 October 1997.
At the hearing the United States presented thefollowing
final submissions:

"The United States of America requests that the Court
uphold the objections of the United States to the
Review of the proceedirtgs and strbmissions jurisdiction of the Court anddeclineto entertainthe case
(paras. 1-15) concerning Ql4estionsof Interpretation and Ayylicrrtiorz
of the 1971Montreal Con~atztioitarisingfiom theAerial
On 3 March 1992, Libya filed in the Regiehy of the Iilcideilt at Lockerbie (Libjlan Arab Jcrmahirij~a v.
Court an Application institiltiiig proceedings against the UnitedStates ofAmerica)."
United States in respect of a "dispute betweenLibya and the
United States concerningthe interpretationor applicationof The final submissionsof Libya readas follows:
"The Libyan Arab Jamahiriya requests the Court to
the Montreal Convention" of 23 September 1971 for the adjudgeand declare:
Suppression of Unlawful Acts against the Safety of Civil
Aviation (hereinafter called "the Montreal Convention"). - that the Preliminary Objections raised by ...the
The Applicationreferredto the destruction,on 21 December United States must be rejected and that, as a
1988,over Lockerbie (Scotland), of the aircraft on Pan Am consequence:
flight 1103,and to charges brought by a Grand ilury of the (a) the Court has jurisdiction to entertain the
United States in November 1991 against two Libyan Applicationof Libya;

nationals suspected of having caused a bomb to be placed (b) that the Applicationis admissible;
aboard the aircraft,which bomb had exploded c:ausingthe - thatthe Court shouldproceed to the merits."
aeropllmeto crash. The Appl.icationinvoked as the basis for
jurisdiction Article 14, paragraph 1, of the Montreal
Convention. J~~risdiction of the Cot~rt
On 3 March 1992, immediately after the filing of its (paras. 16-38)

Application, Libya subiiiitteda request for the indicationof The Court first considers the objection raised by the
provisional measures under Article 41 of the Sta~:ute. y an United Statesto itsjurisdiction. Libya submits that the
Order dated 14 April 1992.,the Court, after kearing the Court has jurisdiction on the basis of Article 14, paragraph
Parties, found that the circumstances of the casa were not 1,of the MontrealConvention,whichprovidesthat:
such a.s to require the exercise of its power .:o indicate "Any dispute between two or more Contracting States
provisionalmeasures.
concerning the interpretation or application of this
Libya filed a Meinoria.1 on the merits within the Conventionwhich cannot be settled through negotiation.
prescribed time limit. In the Memorial Libya requests the shall, at the request of one of them, be submitted to
Court 1:oadjudgeand declare: arbitration. If within six months fromthe date of the
"(a) that the Montreal Convention is applicable to request forarbitration the Parties are unable to agree on
the organization of the arbitration, any one of those
this dispute; Parties may refer the dispute to the Internatio~ialCourt
(b) that Libya has fiilly complied with all of its
obligations under the IVIontreal Convention and is of Justice by request in conformity with the Statute of
justified in exercising tlie criiiiinaljurisdiction provided the Court."
forby that Convention; The Parties agree that the Montreal Convention is in
force between them and that it was already in force both at
(c) that the United States has breached, and is the tinie of the destruction of the Pan Am aircraft over
continuingto breach, its legal obligationsto L.ibyaunderLockerbie, on 21 December 1988,and at the time of filing Existence oj'a specl$c dispute concerning Ai.ticle 7 of
of the Application, on 3 March 1992. However, the tlze Coltvelztion

Respondentconteststhejurisdiction of the Court because,in (paras. 25-28)
its submission, all the requisites laid down in Article 14, The Court findsthat in view oftliepositionsput forward
paragraph 1, of the Montreal Convention have not been
compliedwithin the present case. by the Parties with respect to the rights and obligations
The United States contests the jurisdiction of the Court which Articles 1, 5. 6, 7 and 8 of the Convention would
entail for them that there exists between them not only a
mainly on thebasis of Libya's failure toshow, firstly, that dispute of a general nature, as defined above, but also a
there exists a legal dispute between the Parties, and, specific dispute which concerns tlie interpretation and
secondly, that such dispute, if any, coilcerns the applicationof Article 7 - read in conjunctionwith Article
interpretationor applicationof the Montreal Conventionand 1, Article 5, Article 6 and Article 8- of the Convention,
falls as a result within the terms of Article 14,paragraph 1,
of that Convention. However, at the hearings, the United and which, in accordance with Article 14, paragraph 1,of
States also made reference, in passing, to the arguments it theClonvention,falls to be decidedby the Court.
Article7 is wordedin the followingterms:
had advanced, in the provisional measures phase of the ".Article7
proceedings,asto whether the dispute that,in the opinion of
Libya, exists between the Parties could be settled by The Contracting State in tlie territory of which the
negotiation, whether Libya had made a proper request for a'llegedoffender is found shall, if it does not extradite
arbitration and whether it had respected the six-month him, be obliged, without exception whatsoever and
period required by Article 14, paragraph 1, of the whether or not the offence was committed in its
Convention. territory, to submit the case to its competentauthorities
for the purpose of prosecution. Those authoritiesshall
After an examination of the history of the alleged
disputebetweentheParties the Court concludesthat it could take their decision in the same manner as in tlie case of
not be settled by negotiation or submitted to arbitration any ordinary offence of a seriousnatureunderthe lawof
under the Montreal Convention, and the refusal of the that State."
Respondent to enter into arbitration to resolve that dispute
Existence of a specl$c dispute cottcerning Article 11of
absolved Libya from any obligation under Article 14,
paragraph 1, of the Convention to observe a six-month the Convention
period starting from the request for arbitration, before (paras. 29-32)
seizingtheCourt.
Furthermore, having taken accountof the positions of
the Parties as to the duties imposed by Article 11 of the
Existetzce of a legal dispute of a general natzrre MontrealConvention.the Courtcoiicludes thatthere equally
coizcerning the Convention exists between them a dispute which concerns the
(paras. 22-25) interpretation and application ofthat provision, and which,
in accordance with Article 14, paragraph 1, of the
In its Application and Memorial, Libya maintainedthat Convention,falls to be decidedby the Court.
the Montreal Conventionwas the only instrumentapplicable
to the destruction of the Pan Am aircraft over Lockerbie. A.rticle11is wordedas follows:
The United States does not deny that, as such, the facts of "Article 11
the case could fall within the terms of the Montreal 1. Contracting States shall afford one another the
Convention. However, it emphasizes that, in the present
greatest measure of assistance in connectioii with
case, fromthe time Libya invokedthe Montreal Convention, criminal proceedings broughtin respectof the offences.
the United States has claimed that it was not relevant The lawof the State requestedshall applyin all cases.
because it was not a question of "bilateral differences" but 2. The provisions of paragraph 1 of this Article shall
one of "a threat to internationalpeaceand securityresulting not affect obligations underany other treaty, bilateralor
from State-sponsoredterrorism".
The Court concludesthat consequently,the Parties differ rr~ultilateral,which governs or will govern, in whole or
inpart, niutualassistancein criminalmatters."
on the question whether the destruction of the Pan Am
aircraft over Lockerbie is governed by the Montreal La~fulness of the actiotzs of the Respoliderlt
Convention. A dispute thus exists between the Partiesas to (paras. 33-35)
the legal regime applicableto this event. Such a dispute,in
the view of the Court, concerns the interpretation and With respect to the last submissionof Libya (see above,
applicationof the Montreal Convention, and,in accordance submission (4 of the Memorial)theUnited Statesmaintains

with Article 14,paragraph 1, of the Convention, falls to be that it is not for the Court, on the basis of Article 14,
decidedby the Court. paragraph 1, of the Montreal Convention,to decide on the
lawfirlnessof actions which are in any event in colifonnity
with international law, and which were instituted by tlie
Respondent to secure the surrender of the two alleged
offenders. It concludes from this that the Court lacksjurisdiction to hear the sub~nissionspresented on this point "superseded" by the relevailt decisions of the Security
by Libya. Council under Chapter VII of the Charter, which impose
The Court points out that it cannot uphold the line of different obligations. The said decisions thus establish the
argument thus formulated. Indeed, it is for tlne Court to rules governing the dispute between Libya and the United
States. Those rules - and not the Montreal Coilvention -
decide, ,on the basis of A.rticle 14, paragraph 1, of the definethe obligationsof the Parties; and the claims of Libya
Montreal Convention, on the lawfulness of the actions
criticized by Libya. insofar as those action:; would be based onthe Conventionarethereforeinadmissible.
contrivyto theprovisions ofthe MontrealConvention. For its part, Libya argues that it:is clearm the actual
terms of resolutions 731 (1992), 748 (1992) and 883 (1993)
that the Security Council has never required it to surrender
Eflect of the resoltrtion ?f.tl~eSecla-ity Coztrzcil its nationals to the United States or the United Kingdom;it
(paras. 36-37)
In the present case, the United States has contended, stated at the hearing that this remained "Libya's principal
argument". It added that the Court must interpret those
however, that even if the FdontrealConventior~did confer resolutions "in accordance with the Charter, which
on L:ibya the rights it claims, those rights could not be detennined their validity", and that the Charter prohibited
exercised in this case because they were superseded by the Council from requiring Libya to hand over its nationals
Security Council resolutior~s748 (1992) and 883 (1993) to the United States or the United Kingdom. Libya
which, by virtue of Articles 25 and 103 of the United concludes that its Application is admissible "as the Court
Nations Charter,havepriority over all rights anc obligations
can usefully rule onthe interpretationand applicationof the
arising out of the Montreal Convention.The Respondenthas MontrealConvention ..independentlyof the legal effectsof
also argued that, because of the adoptior~ of those resolutions 748 (1992) and 883 (1993)". Libya furthermore
resoliltions, the only dispute which existed fiorn that point draws the Court's attention to the principle that "[tlhe
on was between Libya and the Security Council; this, critical date for determining the admissibility of an
clearl,~,would not be a dispute falling within the tenns of applicationis the date on whichit is filed".
Article 14, paragraph 1, of the Montreal Convention and
thus n.otonewhich the Court could entertain. In the view of the Court, this last submission of Libya
must be upheld. The date, 3 March 1992,on which Libya
The Court finds that it cannot uphold this line of filed its Application, is in fact the only relevant date for
argument. Security Council resolutions 748 (1992) and 883 deteimining the admissibility of the Application. Security
(1993) were in fact adopted after the filing of the Council resolutions 748 (1992) and 883 (1993) cannot be
Application on 3 March 1992. In accordance with its taken into consideration in this regard, since they were
established jurisprudence, i:fthe Court had jurisdiction on
that date, it continues to do so: the subsequent1:oininginto adopted at a later date. As to Security Council resolution
731 (1992), adopted before the filing of the Application, it
existence of the above-mentioned resolutions csnnot affect could not form a legal impediment to the admissibility of
itsjurisdiction once established. the latter because it was a mere recominendation without
binding effect, as was recognized moreover by the United
States. Consequently, Libya's Application cannot be held
inadmissibleon thesegrounds.
In the light of the foregoing,the Courtconcli~desthat the
objection to jurisdictionraised by the United States on the
basis of the alleged absence of a disputebetween the Parties
concerning the intcrpretatiorlor application of the Montreal In the light of the foregoing,the Courtconcludesthat the
Convr:ntion must be rejec:ted, and that the Court has objectionto admissibilityderivedby theUnited States fioni
jurisdiction to hear the disputes between Libya and the
United States as to the interpretation or appliciitionof the Security Council resolutions 748 (1992) and 883 (1993)
mustbe rejected,and thatLibya's Applicationis admissible.
provisionsof that Convention.
Objection that the Applicant kclaims are ~~itllo~r otbject
Adnzi.~sibili~~of the Libyar~Application (paras. 45-50)
(para:;. 39-44)
The Court then considers the third objection raised by
The Court will now turnto considerthe objectionof the the United States. According to that objection, Libya's
United States according to which the Libyan Application is
not admissible. claims have become moot because Security Council
resolutions 748 (1992) and 883 (1993) have rendered them
The United States emphasizes that the measures which without object; anyjudgment which theCourt might deliver
Libya opposesare those takenby the SecurityCouncilunder on the said claiillswould thenceforth be devoid of practical
resolutions731 (1992), 748(1992)and 883(1993). purpose.
According to the United States, by seizing the Court, The Courtnotes that it alreadyacknowledged,on several

Libya was endeavouring to "undo the Council's actions". occasions in the past, that events subsequelltto the filing of
The United States argues that, even if Libya could make an applicatioil inay "render at1application without object"
valid claims under the Montreal Convention, these are and "therefore the Court is not called upon to give adecision thereon". Thus formulated, the liespondent's establishing that the rights claimed by Libya under the
objectioil is that there is no ground for proceeding to Montreal Convention are incon~patiblewith its obligations

judgment on the merits, which objection must be examined under the Security Council resolutions; and, on the other
within the frameworkof thisjurisp~udence. hand, a decisioil that those obligations prevail over those
The Court inust satisfy itself that such an objection does rights byvirtue of Articles25 and 103of the Charter.
indeed fall within the provisions of Article 79 of the Rules, The Court therefore has no doubt that Libya's rightson
relied upon by the Respondent. In paragraph I. this Article the merits would not only be affected by a decision not to

refersto "Any objection ...to the,jurisdictionof the Coui-tor proceed to judgment on the merits, at this stage in the
to the admissibility of the application, or other objection" proceedings, but would constitute, in many respects, the
(emphasisadded); its field of application mtio~zemnterine is very subjectmatter of that decision.The objectionraised by
thus lloi limited solely to objections regarding jurisdiction the United Stateson that point hasthe characterof a defence
and admissibility.However. if it is to be covered by Article on the merits.
79, an objection must also' possess a "preliminary" The Couit notes furthennore that the UnitedStatesitself
character. Paragraph 1 of Article 79 of the Rules of Court
broached many substantive problems in its written and oral
charactekes as "preliminary" an objection "the decision pleadings in this phase,and pointed out that thoseproblems
upon wkich is requested before any further proceedings". had been the subject of exhaustive exchanges before the
The Court considers in this respect that insofar as the Court; the United States Government thus iinplicitly
purpose of the objection raised by the United States that acknowledgedthat the objectionraised and the merits of the
there is no groundfor proceedingtojudgment on the merits case arere"closely interconnected".
is, effectively,to prevent,i~llimine,any consideratioilof the
case on the merits, so that its "effect [would] be, if the The Couit concludes that if it were to rule on that
objection, it would therefore inevitably be ruling on the
objection is upheld, to interrupt further proceedings in the merits; in relying on the provisions of Article 79 of the
case", and "it [would]therefore be appropriatefor the Court Rules of Court, the Respondent has set in motion a
to deal with [it] before enquiring into the merits", this procedure the precise aim of which is to prevent the Court
objectionpossesses a preliiniiiarycharacter and does indeed from so doing.
fall within the provisions of Article 79 of the Rules of
cou1-t.

Libya does not dispute any of these points. What Libya The Court concludes from the foregoing that the
contends is that this objection - like the objection of objection of the United States according to which the
inadmissibilityraised by the UnitedStates,and for the same
reasons - falls within the category of those which Article Libyan claims have become moot as having been rendered
79, paragraph 7, of the Rules of Court characterizes as withont object does not have "an exclusively preliminary
objections "not possess[ing]. in the circumstances of the character"within the meaningof that Article.
Having established its jurisdiction and concluded that
case, an exclusivelypreliminarycharacter". the Application is admissible, the Court will be able to
On the contrary, the United States considers that the
objection concerned possesses an "exclt~sivelypreliminary consider this objection when it reaches the merits of the
character" within the meaningof that provision. It contends, case.
in particular, in support of this argument, that this objection

does not require "the resolution of disputed facts or the
considerationof evidence". Lastly, the United States requested the Court, in the
The Couit finds that thus it is solely on the question of alternative, in the event that, notwithstanding the United
the "exclusively'' or "non-exclusively" preliininary States' objections,it should declare that it has jurisdiction
character of the objection under consideration that the and deem the Applicationadmissible,to "resolve the case in
Parties are divided and on which the Court must now make substa.ncenow''by deciding, as a preliminary matter, that
the relief soughtby Libya is precluded.
a determination; and it concludes that it nlust therefore
ascertain whether, in the present case, the United States As the Court has already indicated, it is the Respondent
objection considered here contains "both preliminary which sought to rely, in this case, on the provisions of
aspectsand other aspectsrelating to the merits"or not. Article 79 of the Rules. By raisingpreliminary objections, it
The Court observes that that objection relates to many has made a procedural choice the effect of which, according
to the expressterms of Article 79, paragraph 3, is to suspend
aspects of the dispute. By maintainingthat Security Council the proceedings on the merits. The Court cannot therefore
resolutions 748 (1992) and 883 (1993) have rendered the
Libyan claims without object, the United States seeks to upholdthe claim of the United States.
obtain from the Court a decision not to proceedtojudgment
on the merits, which would ilninediately tenninate the
proceedings. However, by requesting such a decision, the
United States is requesting, in reality, at least two others The Court finally specifies that in accordance with
Article 79, paragraph 7, of the Rules of Court, time limits
which the decisionnot to proceed tojudgment on the merits forthe furtherproceedingsshall be fixedsubsequentlyby it.
would necessarily postulate: on the one hand a decision Joint declaration ofJudges Bedjaozri,Railjeva aild resolutions 748 (1992) and 883 (1993), Judge Kooijmans
Koroma shares the Court's view that this objection has not an
exclusively prelimina~ycharacter. He is, however, also of
Judges Bedjaoui, Ranjeva and Koroina consider that to the opinion that these resolutions, although authoritative,
qualify the United States objection of mootness as not have no final and definitive character, and therefore cannot
exclusivelypreliininnl-)and to refer it back to be considered render the case mootin the preliminaryphase.
at the merits stage means that it is not sufficient to invoke
the provisions of Chapter VI[ of the Charterso as to bring to
an enclipso facto and with immediate effect all argument on Separate opiilioiz of Judge Rezek
the SecurityCouncil's decisions.
Judge Rezek deems that the Judgment would more fully
convey the line of argument advanced by the Parties were it
Joiilt declaration ofJudges G~rillatrineand to devote a few lines to the subject of the jurisdiction.of the
Fleischkaue~. Court in relation to that of the political organs of the
Organization.
In a joint declaration, Judges Guilliiume and
Fleischhauer have stated their views as to how the Court He isof the opinion that the Court has fulljurisdiction to
should1have dealt with the objection of the Ur~itedStates interpret and applythe law in a contentiouscase, even,when
accord.ing to which "Libya's claims have become moot the exercise of such jurisdiction may entail the critical
because Security Council resolutions 748 (1992) and 883 scrutiny of a decision of another organ of the United
(1993) have rendered then1without object". Nations. It does not directly represent the member States of
the Organization but it is precisely because .it is
Judges Guillaume and Fleischhauer think that the Court impermeable to political injunctions that the Court is the
could have decided on that objection without pronouncing interpreter par excellence of the law and the natural,place
on the merits of the rights and obligations of the Parties
under the Montreal Convention. They reach the conclusion for reviewing the acts of politicalrgans in the name,ofthe
that the objection had an exclusively preliminary character law, as is the rule in democraticregimes.
and that the Court could and should have taken a decision as
Dissentiicg opinion of President Schwebel
of now. They regret that the:decision on the objection has
been put off and underline thatthe solution arrivt:dat by the In Judge Schwebel's view, the Court's Judgment does
Court runs counter to the objective of the revision in 1972 not show (as contrasted with concluding) that the
of Article 79 of the Rules of,Court,i.e., the siniplificationof Respondent can be in violatioil of provisions of the
proced.ureand the soundadministrationofjustice. MontrealConvention; with the possible exception of Article
11of the Convention, the Court does not show that there is

Declaration ofJtrdge Herczegh a dispute between the Parties over such alleged violations.
In his declaration, Judge Herczegh sulnnlarizes the There is disputeover the meaning,legality and effectiveness
reasons why he voted against paragraph 2 (a) and (h),and of the pertinent resolutions of the Security Council. That
dispute may not be equated with a dispute under the
against paragraph 3 of the operative part. He colisiders that Convention,the sole basis of the Court's jurisdiction in the
the Libyan claiins are gove:med by the binding Security case.
Council resolutions which rendered the Libyan Application
with0u.tobject. The objection raised by the Respondent in The fact the SecurityCouncilresolutions748 (1992) and
that connection has an exclusively prelimina~y character. 883 (1993) were adopted after the filing of Libya's
The objection should therefore have been upheld and the Application is not determinative. While jurisdiction is
Libyan claimrejected. normally determined as of the date of application, it need
not invariablybe so. The cases on which the Courtrelies are
not in point.
Seprcrateopinion of Judge Kooijmans
The Court rejects the Respondent's contention that
In his separate opinion, Judge Kooijmans expresses his Libya's case is inadmissible on the sole ground that the
support for the conclusions of the Court. He wishes to place critical date for determining admissibility of an application
on rec,ord,however, his views with regard to a number of is the date on which it is filed. But the single case on which
argum1:ntsbrought forwardby the Parties. In his opinion the the Court relies is distinguishable. Moreover, that case, as
motive:^which the Applicant may have had when filing its others, recognizes that events subsequentto the filing of an
Application, are irrelevant to the Court whose only function applicationinay render an application without object.
is to determine whether there is a justiciable dispute. The
In this case, SecurityCouncilresolutions748 (1992) and
fact that a situation has been brought to the attention of the 883 (1993) supervene any rights of Libya under the
Security Council and that the Council has taken action with Montreal Convention, and thus render reliance upon it
regard to that situation can in no way detracl. from the without object and moot. By virtue of Article 103 of the
court':^own competence and responsibility to objectively United Nations Charter, decisioils of the Security Council
determinethe existence or non-existenceof a dispute. prevail over any rights and obligations Libya and the
With regard to the objection that the Libyan claimshave
Respondent inay have underthe MontrealConvention.
been rendered without object or moot by Security Council The Court finds that it cannot uphold theniootness claim presently located in Libya, who are accused of the
because it is not exclusively preliminary in character under destruction of Pan Am flight 103 over Lockerbie in United

the Court's Rules. But since jurisdiction in this case flows Kingdom territory.
only from the Montreal Convention, a plea citing W:hat,in fact, occurred between the United States and
resolutions of the Security Council in bar of reliance upon Libya was simply a demand by the United States that the
that Conventionis of an exclusivelypreliminarycharacter. suspects located in Libya be surrendered to it and a refusal
The Court's Judgment may be seen as prejudicing the by Libya to comply with that demand. No dispute has

efforts of the Security Council to combat terrorism and as existed between Libya and the United States "concerning
appearing to offer recalcitrant states a means to parry and the interpretation or application of the [Montreal]
frustrate its decisions by appeal to the Court. That raises the Conve:ntion"as far as the demand for the surrender of the
question of whether the Court possesses a power ofjudicial suspects and the refusal to accede to that delllalid- the
review over Council decisions. inai~iissue in the present case - are concerned. In Judge
Oda's view, the Application by which Libya instituted
In Judge Schwebel's view, the Court is not generally so proceedingsagainst the United Statespursuant to Article 14,
empowered, and it is particularly without power to overrule
or undercut decisions of tlie Security Council determining paragraph 1, of the Montreal Convention should be
whether there is a threat to the peace and what measures dismissed on this sole ground.
shall be taken to deal with the threat. The Court more than
once has disclaimed a power of judicial review. The terms
of the Charter furnish no shred of support for such a power.
If the Court's jurisdiction is denied, as Judge Oda
In fact, they import the contrary, since, if the Court could believes it shouldbe, the issue of whether theApplicatioii is
overrule the Council, it would be it and not the Council or is not admissible does not arise. He considers it
which would exercise dispositive and hence primary meaningless to discuss the question of adn~issibility.
autliority in a sphere in which the Charter accords primary However, after finding that it has jurisdiction, the Court
autliorityto the Council. continues to deal with the question of admissibility by

The ternls and drafting history of the Charter rejecting the objection to admissibility derived by the
demonstrate that the Security Council is subject to the rule United States from Security Council resolutions 748 and
of law, and at the same time is empowered to derogate from 883. .fudge Oda then comn~entedon the impact of those
international law if the maintenance of international peace Security Council resolutions in the present case. In his view.
requires. It does not follow from the fact that the Council is if the adoption of Security Council resolutions 748 and 883
so subject, and that the Court is the UnitedNations principal is to be dealt with in connection with the question of
judicial organ, that the Court is authorizedto ensure that the adn~issibilityof the Application, it should be dealt with at

Council's decisions do accord with law. In many legal the present (preliminary) stage irrespective of whether this
systems. the subjectionof the acts of an organ to law by no question possesses or not an e.rclz~siveIvpreliminary
ineans entails the subjection of the legality of its actions to character. The question of whether Libya's 3 March 1992
judicial review. The tenor of the discussions at San Application hasbecome without object after the adoption of
Francisco indicate the intention of the Charter's drafters not these two Security Council resolutions, is totally irrelevant
to accord the Court a power ofjudicial review. to tlie present case. The Security Council manifestly passed

To engraft upon the Charter regime a power of judicial those resolutions because it believed that Libya's refusal to
review would not be a developmentbut a departurejustified surrender the accused constituted "threats to the peace" or
iieitlierby Charter terms lior by custolnary international law "breaches of the peace". Judge Oda expressed his view that
nor by the general principles of law. It would entail the these Security Council resolutions, having a political
Court giving judgment over an absentee, the Security connotation, have nothing to do with the present case, since
Council,contrary to fundamentaljudicial principles. It could the case must cover only legal matters cxistiilg between the
United States and Libya before the resolutions were
give rise to the question, is a holding by the Court that the
Council has acted ultra vires a holding which of itself is adopted.
ultravires? If there is any dispute in this respect, it could be a
dispute between Libya and the Security Council or between
Disseiltirlg opinion of'Judge Oda Libya and the United Nations, or both, but rzot between
Libya and the United States. The effect of the Security
In his dissenting opinion, Judge Oda began by stating
that tlie crux of the case before the International Court of Council resolutions upon member States is a matter quite
Justice is siinply the different positions adopted by both irrelevant to this case and the questioii of whether the
Applicationhas become without object after tlie adoption of
Parties concerning the surrender of the two Libyans, those resolutions hardly arises.