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World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.3. Judges ad hoc

¤ 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

[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.

[pp. 39-40 J.Decl. Bedjaoui, Guillaume, Ranjeva] 14. In the current phase of this case the United Kingdom and 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".

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 Higgins'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 simila in their legal reasoning and virtually identical in their operative provisions.1

[pp. 44-45 J.Decl. Bedjaoui, Guillaume, Ranjeva] 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 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.2

1See, 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, 115.
2See, 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, 115.