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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.5. | Preliminary Objections |
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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. 26-29] 46. In dealing with admissibility, the Agent of the United Kingdom also stated that his Government "ask[ed] the Court to rule that the intervening resolutions of the Security Council have rendered the Libyan claims without object".
The Court has already acknowledged, on several occasions in the past, that events subsequent to the filing of an application may "render an application without object" (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66) and "therefore the Court is not called upon to give a decision thereon" (Nuclear Tests (Australia v. France), Judgment, LC.J. Reports 1974, p. 272, para. 62) (cf. Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38).
In the present case, the United Kingdom puts forward an objection aimed at obtaining from the Court a decision not to proceed to judgment on the merits, which objection must be examined within the framework of this jurisprudence.
47. The Court must satisfy itself that such an objection does indeed fall within the provisions of Article 79 of the Rules, relied upon by the Respondent. In paragraph 1, this Article refers to "Any objection ... to the jurisdiction of the Court or to the admissibility of the application, or other objection" (emphasis added); its field of application ratione materiae is thus not limited solely to objections regarding jurisdiction or admissibility. However, if it is to be covered by Article 79, an objection must also possess a "preliminary" character. Paragraph 1 of Article 79 of the Rules of Court characterizes as "preliminary" an objection "the decision upon which is requested before any further proceedings". There can be no doubt that the objection envisaged here formally meets this condition. The Court would also indicate that, in this instance, the Respondent is advancing the argument that the decisions of the Security Council could not form the subject of any contentious proceedings before the Court, since they allegedly determine the rights which the Applicant claims to derive from a treaty text, or at least that they directly affect those rights; and that the Respondent thus aims to preclude at the outset any consideration by the Court of the claims submitted by the Applicant and immediately terminate the proceedings brought by it. In so far as the purpose of the objection raised by the United Kingdom that there is no ground for proceeding to judgment on the merits is, effectively, to prevent, in limine, any consideration of the case on the merits, so that its "effect [would] be, if the objection is upheld, to interrupt further proceedings in the case", and "it [would] therefore be appropriate for the Court to deal with [it] before enquiring into the merits" (Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16), this objection possesses a preliminary character and does indeed fall within the provisions of Article 79 of the Rules of Court.
Moreover, it is incontrovertible that the objection concerned was submitted in writing within the time-limit fixed for the filing of the Counter-Memorial, and was thus submitted in accordance with the formal conditions laid down in Article 79.
48. Libya does not dispute any of these points. It does not contend that the objection derived by the United Kingdom from Security Council resolutions 748 (1992) and 883 (1993) is an objection on the merits, which does not fall within the provisions of Article 79 of the Rules of Court, nor does it claim that the objection was not properly submitted. What Libya contends is that this objection falls within the category of those which paragraph 7 of Article 79 of the Rules of Court characterizes as objections "not possess[ing], in the circumstances of the case, an exclusively preliminary character" (see paragraph 42 above).
On the contrary, the United Kingdom considers that the objection concerned possesses an "exclusively preliminary character" within the meaning of that provision; and, at the hearing, its Agent insisted on the need for the Court to avoid any proceedings on the merits, which to his mind were not only "likely to be lengthy and costly" but also, by virtue of the difficulty that "the handling of evidentiary material ... might raise serious problems".
Thus it is on the question of the "exclusively" or "non-exclusively" preliminary character of the objection here considered that the Parties are divided and on which the Court must now make a determination.
49. The present wording of Article 79, paragraph 7, of the Rules of Court was adopted by the Court in 1972. The Court has had occasion to examine its precise scope and significance in the Judgments it delivered in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), on 26 November 1984 (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 425-426) and on 26 June 1986 (Merits, Judgment, I.C.J. Reports 1986, pp. 29-31), respectively. As the Court pointed out in the second of those Judgments,
"Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits 'whenever the interests of the good administration of justice require it' (Paneverys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56), and in particular where the Court, if it were to decide on the objection, 'would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution" (ibid.) (I.C.J. Reports 1986, pp. 29-30, para. 39).
However, the exercise of that power carried a risk,
"namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties to fully plead the merits - and this did in fact occur (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure" (ibid. p. 30, para. 39).
The Court was then faced with the following choice: "to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible" (ibid., p. 30, para. 40). The solution adopted in 1972 was ultimately not to exclude the power to examine a preliminary objection in the merits phase, but to limit the exercise of that power, by laying down the conditions more strictly. The Court concluded, in relation to the new provision thus adopted:
"It thus presents one clear advantage: that it qualifies certain objections as preliminary, making it clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage." (Ibid., p. 31, para. 41.)
50. The Court must therefore ascertain whether, in the present case, the United Kingdom's objection based on the Security Council decisions contains "both preliminary aspects and other aspects relating to the merits" or not.
That objection relates to many aspects of the dispute. By maintaining that Security Council resolutions 748 (1992) and 883 (1993) have rendered the Libyan claims without object, the United Kingdom seeks to obtain from the Court a decision not to proceed to judgment on the merits, which would immediately terminate the proceedings. However, by requesting such a decision, the United Kingdom is requesting, in reality, at least two others which the decision not to proceed to judgment on the merits would necessarily postulate: on the one hand a decision establishing that the rights claimed by Libya under the Montreal Convention are incompatible with its obligations under the Security Council resolutions; and, on the other hand, a decision that those obligations prevail over those rights by virtue of Articles 25 and 103 of the Charter.
The Court therefore has no doubt that Libya's rights on the merits would not only be affected by a decision, at this stage of the proceedings, not to proceed to judgment on the merits, but would constitute, in many respects, the very subject-matter of that decision. The objection raised by the United Kingdom on that point has the character of a defence on the merits. In the view of the Court, this objection does much more than "touch[ing] upon subjects belonging to the merits of the case" (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.LJ., Series A, No. 6, p. 15); it is "inextricably interwoven" with the merits (Barcelona Traction, Light and Power Company, Limited Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 46).
The Court notes furthermore that the United Kingdom itself broached many substantive problems in its written and oral pleadings in this phase, and pointed out that those problems had been the subject of exhaustive exchanges before the Court; the United Kingdom Government thus implicitly acknowledged that the objection raised and the merits of the case were "closely interconnected" (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 46, and the reference to Pajzs, Csdky, Esterhazy, Order of 23 May 1936, P.C.I.J., Series A/B, No. 66, p. 9).
If the Court were to rule on that objection, it would therefore inevitably be ruling on the merits; in relying on the provisions of Article 79 of the Rules of Court, the Respondent has set in motion a procedure the precise aim of which is to prevent the Court from so doing.
The Court concludes from the foregoing that the objection of the United Kingdom according to which the Libyan claims have been rendered without object does not have "an exclusively preliminary character" within the meaning of that Article.1
[pp. 47-50 J.Decl. Guillaume, Fleischhauer]
I
We voted against the third conclusion in the dispositif that
"the objection raised by the United Kingdom according to which Security Council resolutions 748 (1992) and 883 (1993) have rendered the claims of Libya without object does not, in the circumstances of the case, have an exclusively preliminary character".
We find that that conclusion is wrong and that it sets a potentially dangerous precedent as it undercuts the object and purpose of Article 79 of the Rules of Court.
The conclusion is wrong for the following reasons.
This case is about the Montreal Convention. What is in dispute between the Parties is the applicability of the Convention to the Lockerbie incident and the observation of the obligations flowing from its provisions in the aftermath of the incident. The case is not about the Security Council resolutions 748 (1992) and 883 (1993) which were adopted by the Council on 31 March 1992 and 11 November 1993 respectively, i.e., after Libya had submitted its Application on 3 March 1992. Libya's substantive submissions as contained in its Application and its Memorial concern the applicability of the Montreal Convention and the compliance of the Parties with particular provisions of that instrument in the handling of the Lockerbie incident. Were it otherwise, the Court would not have jurisdiction; the only base for jurisdiction in this matter is Article 14, paragraph 1, of the Montreal Convention which confers on the Court jurisdiction over "any dispute between two or more Contracting States concerning the interpretation or application" of the Convention.
The United Kingdom as Respondent claims, as a matter of preliminary objection, "that the intervening resolutions of the Security Council have rendered the Libyan claims without object" (Judgment, para. 46). The aim of the objection is to obtain a decision from the Court that there is no ground for proceeding to judgment on the merits. This is an exclusively preliminary objection. The Court could - and should - have decided on it without thereby passing judgment - if only in part - on the merits of Libya's claims.
Had the Court rejected - in whole or in part - the preliminary objection in question, then it would now turn - in so far as the preliminary objection was rejected - to the merits of the Libyan submissions and examine them one by one within the limits of its jurisdiction. The outcome of that examination would in no way be predetermined by the previous examination of and decision on the objection of the United Kingdom.
Had the Court, on the other hand, accepted the objection raised by the United Kingdom, then the Court would have effectively ended the case. It would, however, have done so without deciding on the merits of any of the submissions presented by Libya or predetermining them. The Court would have left the Montreal Convention completely aside. It would have based its decision exclusively on a new element, extraneous to the Montreal Convention and not related to it - the Security Council resolutions. In adopting resolutions 748 (1992) and 883 (1993), which contain decisions made under Chapter VII of the Charter and binding under Article 25, the Security Council has not taken position with regard to the Montreal Convention; in no way has it decided whether the provisions of the Convention are applicable to the Lockerbie incident, nor has it decided or taken a position on the question as to whether the provisions of the Convention have been complied with by the Parties. Rather, in the exercise of its primary responsibility for the maintenance of international peace and security, the Council found it necessary to impose certain obligations on Libya. In accordance with Article 103 of the Charter, those obligations override all other obligations of the Parties, irrespective of whether the latter obligations were contested between the Parties or whether they had been complied with or not. The lack of connection between the Security Council resolutions and the position of the Parties under the Montreal Convention precludes the evaluation of the objection of the United Kingdom as a defence on the merits; it also prohibits the Court from stating, as it does, that the objection "does much more than 'touch[ing] upon subjects belonging to the merits of the case' " (Judgment, para. 50) or that it is " 'inextricably interwoven' with the merits" (ibid.).
Because this is so, the third conclusion of the dispositif of the Judgment seems to run counter to the jurisprudence of the Court concerning the application of Article 79 of the Rules of Court since their 1972 revision. The Court, with one exception (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392), has always dealt with preliminary objections in the first phase of the proceedings and has indeed favoured a restrictive interpretation of the notion "not exclusively preliminary" in the interest of speedy and économical disposal of the objections (ibid., Merits, Judgment, I.C.J. Reports 1986, pp. 29 ff.).
The Judgment seeks to justify its third conclusion by declaring that accepting the preliminary objection of the United Kingdom would have meant taking "a decision establishing that the rights claimed by Libya under the Montreal Convention are incompatible with its obligations under the Security Council resolutions" (para. 50). It adds that acceptance of the objection raised by the Respondent would have constituted "a decision that those obligations prevail over those rights by virtue of Articles 25 and 103 of the Charter" (ibid.). This might be true, but it is beside the point for the decision to be taken now on the preliminary objection of the United Kingdom. Defining the meaning and the effect of the resolutions of the Council and comparing those resolutions with the submissions of Libya regarding the Montreal Convention in no way means taking position on the rights and obligations of Libya under the Convention.
That acceptance of the preliminary objection of the United Kingdom would have brought the case to an end is also not an argument against its exclusively preliminary character: the ending of a case is the intention of every preliminary objection. This is so in the case of objections of the kind of those dealt with in the third conclusion of the dispositif. The Court has in the past had occasion to deal with such objections and has considered them separate from the merits; it dealt with them even before turning to jurisdiction and admissibility (Nuclear Tests cases (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 259-272 and (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 457-478). In this connection it has also to be pointed out that if the Council terminated, with effect ex nunc, the measures prescribed by resolutions 748 (1992) and 883 (1993), the position of the Parties under the Convention would still exist, unchanged.
The third conclusion of the dispositif runs counter to the object and purpose of Article 79 of the Rules of Court and sets a dangerous precedent for the future handling of that provision for the following reasons.
When the Court, in 1972, adopted the text which later became Article 79, it did so for reasons of procedural economy and of sound administration of justice. Court and parties were called upon to clear away preliminary questions of jurisdiction and admissibility as well as other preliminary objections before entering into lengthy and costly proceedings on the merits of a case. Of course, provision had to be made for objections that did not possess "in the circumstances of the case, an exclusively preliminary character" (Art. 79, para. 7). In order to make the necessary determinations the Court, "whenever necessary, may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue" (Art. 79, para. 6). The interpretation given by the Court in the present case to the notion "not exclusively preliminary character" is, however, so wide and so vague that the possibility of accepting a preliminary objection becomes seriously restricted. Thereby the Judgment acts counter to the procedural economy and the sound administration of justice which it is the intent of Article 79 to achieve.
II
We would also like to state that we have voted in favour of the first conclusion of the dispositif on jurisdiction of the Court over the case on the following understanding relating to the last of the substantive submissions presented by Libya in its Application and its Memorial:
In the version submitted to the Court in the Libyan Memorial this submission concerns an alleged legal obligation of the United Kingdom
"to respect Libya's right not to have the [Montreal] Convention set aside by means which would in any case be at variance with the principles of the United Nations Charter and with the mandatory rules of general international law prohibiting the use of force and the violation of the sovereignty, territorial integrity, sovereign equality and political independence of States" (Judgment, para. 34).
We recognize that there is a legal dispute between the Parties concerning this point. That dispute, however, falls under Article 14, paragraph 1, of the Montreal Convention and therefore within the jurisdiction of the Court only if, and in so far as, it concerns the interpretation and application of one or more of the provisions of the Convention. The dispute does not fall under Article 14, paragraph 1, and the jurisdiction of the Court if it concerns the interpretation and application of Article 2, paragraph 4, of the Charter of the United Nations. That is spelled out in paragraph 36 of the Judgment, but not so explicitly in the dispositif; that is why we wish to make our position on the matter quite clear.2
[pp. 52-53 Decl. Herczegh] The upholding of a preliminary objection undoubtedly has effects as to enjoyment of the rights that the Applicant claims to possess in its relations with the Respondent, without the existence or content of those rights being questioned. The indirect consequences of upholding an objection cannot be regarded as determinative of the exclusively preliminary character or otherwise of such an objection, within the meaning of Article 79, paragraph 7, of the Rules of Court. In this case, the Court is not required to adjudicate upon the interpretation or application of Articles 7 and I I of the Montreal Convention. The question whether the rights and obligations of the Parties, in the circumstances of the case, are governed by the United Nations Charter and by resolutions adopted by virtue of Charter provisions has no effect on the provisions of the Montreal Convention for the interpretation or application of which the Court has jurisdiction; the objection consequently possesses an exclusively preliminary character. There can be no doubt that the obligations of Members of the United Nations under the Charter - including the obligations that Security Council decisions create in regard to them - prevail over their obligations contracted under other international agreements. At the close of the provisional measures phase, the Court, in its Order of 15 April 19492, arrived at just such a finding (I.C.J. Reports 1992, p. 15, para. 39).3
[p. 72 D.O. Schwebel] The fact that a preliminary objection, if upheld, will dispose of the merits of the case in the sense of preventing a hearing of them proves nothing; all preliminary objections, if sustained, have this effect. More than this, Article 79 qualifies the conclusion that the objection does not possess an exclusively preliminary character by specifying that it "does not possess, in the circumstances of the case, an exclusively preliminary character". In the circumstances of this case, concerned as it is or should be with jurisdiction under the Montreal Convention - and there is no other ground for jurisdiction -a plea that the case should not proceed to a consideration of the merits of rights and obligations under the Montreal Convention because resolutions of the Security Council render such consideration without object must be treated as a plea of an exclusively preliminary character.4
[p. 107 D.O. Jennings] It is thus necessary, at the outset of this admissibility question, to examine the meaning of "exclusively preliminary character" because though it is clearly tempting just to dispose of the admissibility argument by deciding that the inadmissibility objection is not an "exclusively" preliminary matter, this would be to incur the risk of this riposte being usable against almost any party in any case wishing to enter a preliminary objection to the exercise of jurisdiction.
It could no doubt be argued, on the other hand, that, if a plea be so intimately connected with the merits as the present Appellant evidently appeared to assume, there could be something to be said for examining the admissibility plea along with a full merits argument. But where the preliminary objection has already been entertained and heard, that argument is self-defeating. I am for these reasons unable to go along with the Court in using the drafting of Article 79, paragraph 7, of the Rules, to dispose of these preliminary objections, whether to jurisdiction or admissibility, on this highly legalistic and juridically doubtful ground.
| 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. 131-134, 45-49. |
| 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, 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, 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. |
