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(Libyan Arab Jamahiriya v. United Kingdom)
(Libyan Arab Jamahiriya v. United States of America)
Preliminary Objections
Judgment of 27 February 1998
On 3 March 1992, the Socialist People's Libyan Arab Jamahiriya filed in the Registry of the Court two separate Applications instituting proceedings against the United Kingdom and the United States of America in respect of a dispute concerning the interpretation and application of the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the Montreal Convention). The dispute arose from the crash of Pan Am flight 103 at Lockerbie (United Kingdom) on 21 December 1988, an incident caused by a bomb placed aboard the Pan-Am flight. As a result of subsequent police investigations, the Lord Advocate of Scotland and a Grand Jury of the United States charged two Libyan nationals with having caused the explosion. Libya contended that, by pressuring Libya to surrender the two Libyan nationals for trial in the United Kingdom or the United States, the two respondent States were violating the Montreal Convention. In two Orders of 14 April 1992 the Court had declined to indicate provisional measures requested by Libya. (see summary of the Orders of 14 April 1992, in: World Court Digest, Vol. 2, 1991-1995, 1997, p. 417).
In two judgments of 27 February 1998 – one against the United Kingdom, and one against the United States – the Court rejected several preliminary objections raised by the respondents. The United Kingdom and the United States had raised preliminary objections to the jurisdiction of the Court and to the admissibility of the Libyan Application. Both States also argued that the intervening Security Council resolutions 748 (1992) and 883 (1993) had rendered the Libyan claims without object.
Contrary to the assertions by the United Kingdom and the United States, the Court found that a dispute existed between the two States and Libya as to the question whether the destruction of the Pan Am aircraft over Lockerbie was governed by the Montreal Convention. It also considered that there was a more specific dispute concerning the interpretation and application of Art. 7 of the Montreal Convention, which regulates prosecution in case of unlawful acts against civil aviation, and of Art. 11, which provides for mutual assistance by the parties to the Montreal Convention in criminal proceedings.
The Court also found that the Security Council resolutions did not interfere with the Libyan claims since they had been adopted after the filing of the Libyan application on 3 March 1992. Relying on its constant jurisprudence, the Court held that if it had jurisdiction on the date of the filing of an application, it continued to do so. Therefore, the Court held that it has jurisdiction to hear the disputes. On the same grounds the Court rejected the argument that the Libyan applications were inadmissible because the issues were superseded by the mentioned resolutions of the Security Council.
Regarding the request of the respondent States for a ruling that the intervening resolutions of the Security Council have rendered the Libyan claims without object, the Court found that this argument was not of an exclusively preliminary character and could not be decided upon without affecting the merits of Libya's application. According to the Court a decision on the alleged mootness of the Libyan claim would imply two other decisions. On the one hand it would require a decision establishing that the rights claimed by Libya under the Montreal Convention were 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. However, these decisions were part of the subject matter of the Libyan claim.
In a joint declaration to the judgment against the United Kingdom, Judges Bedjaoui, Guillaume and Ranjeva doubted whether, in this case, the United Kingdom was entitled to appoint a judge ad hoc to replace Judge Higgins who had stood down. They pointed out that, in this phase of the proceedings, the United States and the United Kingdom had made the same submissions. They concluded from this that those two States were in the same interest. The authors of the declaration therefore considered that the United Kingdom was not entitled to appoint a judge ad hoc.
In a joint declaration to both judgments, Judges Guillaume and Fleischhauer reach the conclusion that the objection, according to which Security Council resolutions 748 (1992) and 883 (1993) have rendered the claims of Libya without object, had an exclusively preliminary character and that the Court could and should have taken a decision as of now.
In his declaration to both judgments, Judge Herczegh considers that the Libyan claims are governed by the binding Security Council resolutions which rendered the Libyan Application without object. According to him, the objection raised in that respect was of an exclusively preliminary character. The objection should therefore have been upheld and the Libyan claim rejected.
Judge Rezek, in a separate opinion to both judgments, is of the opinion that the Court has full jurisdiction to interpret and apply the law in a contentious case, even when the exercise of such jurisdiction may entail the critical scrutiny of a decision of another organ of the United Nations. It does not directly represent the member States of the Organization but it is precisely because it is impermeable to political injunctions that the Court is the interpreter par excellence of the law and the natural place for reviewing the acts of political organs in the name of the law, as is the rule in democratic régimes.
According to Judge Schwebel's dissent in both judgments, there was dispute over the meaning, legality and effectiveness of the pertinent resolutions of the Security Council. However, the judgment did not show that there was a dispute under the Montreal Convention, the sole basis of the Court's jurisdiction in the case. The fact the Security Council resolutions 748 (1992) and 883 (1993) were adopted after the filing of Libya's Application was not determinative. While jurisdiction was normally determined as of the date of application, it needed not invariably be so. The cases on which the Court relied were not in point.
In Judge Schwebel's view, the Court was without power to overrule or undercut decisions of the Security Council determining whether there is a threat to the peace and what measures shall be taken to deal with the threat. The terms and drafting history of the Charter demonstrated that the Security Council was subject to the rule of law, and at the same time was empowered to derogate from international law if the maintenance of international peace so requires. To engraft upon the Charter régime a power of judicial review would not be a development but a departure justified neither by Charter terms nor by customary international law nor by the general principles of law. It would entail the Court giving judgment over an absentee, the Security Council, contrary to fundamental judicial principles.
In his dissenting opinion to both judgments, Judge Oda stated that the parties simply differed on the surrender of the two Libyans, presently located in Libya, who are accused of the destruction of Pan Am flight 103 over Lockerbie in United Kingdom territory. Consequently, no dispute existed between Libya and the United Kingdom concerning the interpretation or application of the Montreal Convention In Judge Oda's view, the Libyan applications should have been dismissed on this sole ground.
According to Judge Oda the question of whether Libya's applications have become without object after the adoption of these two Security Council resolutions, is totally irrelevant to the present case. The Security Council manifestly passed those resolutions because it believed that Libya's refusal to surrender the accused constituted "threats to the peace" or "breaches of the peace". Judge Oda expressed his view that the Security Council resolutions, having a political connotation, had nothing to do with the present case, since the case only concerned legal matters existing between the United Kingdom and Libya before the resolutions were adopted.
Judge ad hoc Sir Robert Jennings, in a dissenting opinion to the judgment against the United Kingdom, thought the Court should have found that it did not have jurisdiction in the case; and even if it had jurisdiction, that the Libyan case should have been dismissed as inadmissible. Jurisdiction depended upon whether the Libyan case could be brought under the terms of Article 14, paragraph 1, of the Montreal Convention. An examination of Libya's requests showed that there existed no genuine dispute about the Convention. The true dispute was between Libya and the Security Council.
Since the Court had concluded that it did have jurisdiction, it should then have found the Libyan claim inadmissible because the dispute between Libya and the United Kingdom was now regulated by decisions of the Security Council made under Chapter VII of the Charter and so binding on both Parties.
