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World Court Digest

III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.2. Conditions for a Decision on the Merits
2.2.4. Admissibility

¤ Questions of Interpretation and Application
of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie
(Libya v. United Kingdom) Preliminary
Objections, Judgment of 27 February 1998
I.C.J. Reports 1998, p. 9

[pp. 24-26] 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.

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.1

[pp. 51-52 Decl. Herczegh] 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 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." (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 character of a recommendation, it does not create legally binding obligations for Members of the United Nations. It should be taken all the more into 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.2

[pp. 69-70 D.O. Schwebel] 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. 11, 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 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.3

[p. 71 D.O. Schwebel] 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.4

[p. 108 D.O. Jennings] 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.

1 Identical with Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, pp. 129-131, 39-44.
2 See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.
3 See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.
4 See, mutatis mutandis, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, I.C.J. Reports 1998, p. 115.