III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.2. | Conditions for a Decision on the Merits |
2.2.5. | Simultaneous seizing of the Court and the Security Council
Review of Security Council resolutions |
¤
Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya / United Kingdom),
Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 3
[pp. 14-15 1] 38. Whereas the Court, in the context of the present
proceedings on a request for provisional measures, has, in accordance with
Article 41 of the Statute, to consider the circumstances drawn to its attention
as requiring the indication of such measures, but cannot make definitive
findings either of fact or of law on the issues relating to the merits, and the
right of the Parties to contest such issues at the stage of the merits must
remain unaffected by the Court's decision;
39. Whereas both Libya and the United Kingdom, as Members of the United
Nations, are obliged to accept and carry out the decisions of the Security
Council in accordance with Article 25 of the Charter; whereas the Court, which
is at the stage of proceedings on provisional measures, considers that prima
facie this obligation extends to the decision contained in resolution 748
(1992); and whereas, in accordance with Article 103 of the Charter, the
obligations of the Parties in that respect prevail over their obligations under
any other international agreement, including the Montreal Convention;
40. Whereas the Court, while thus not at this stage called upon to determine
definitively the legal effect of Security Council resolution 748 (1992),
considers that, whatever the situation previous to the adoption of that
resolution, the rights claimed by Libya under the Montreal Convention cannot now
be regarded as appropriate for protection by the indication of provisional
measures;
41. Whereas, furthermore, an indication of the measures requested by Libya
would be likely to impair the rights which appear prima facie to be enjoyed by
the United Kingdom by virtue of Security Council resolution 748 (1992);
42. Whereas, in order to pronounce on the present request for provisional
measures, the Court is not called upon to determine any of the other questions
which have been raised before it in the present proceedings, including the
question of its jurisdiction to entertain the merits of the case; and whereas
the decision given in these proceedings in no way pre-judges any such question,
and leaves unaffected the rights of the Government of Libya and the Government
of the United Kingdom to submit arguments in respect of any of these questions;
43. For these reasons,
THE COURT,
By eleven votes to five,
Finds that the circumstances of the case are not such as to require
the exercise of its power under Article 41 of the Statute to indicate
provisional measures.
[pp. 34-35 D.O. Bedjaoui 2] 6. Libya was fully within its rights
in bringing before the Court, with a view to its judicial settlement, the
dispute concerning extradition, just as the United Kingdom and the United States
were fully within their rights in bringing before the Security Council, with a
view to its political settlement, the dispute on the international
responsibility of Libya. The respective missions of the Security Council and the
Court are thus on two distinct planes, have different objects and require
specific methods of settlement consistent with their own respective powers. Such
a situation, involving two distinct procedures before two principal organs of
the United Nations having parallel competences, is, I might add, not an unusual
one, as I observed in paragraph 2 above. But the difficulty in the present case
lies in the fact that the Security Council not only has decided to take a number
of political measures against Libya, but has also demanded from it the extradition
of its two nationals. It is this specific demand of the Council that creates an
overlap with respect to the substance of the legal dispute with which the Court
must deal, in a legal manner, on the basis of the 1971 Montreal Convention and
international law in general. The risk thus arose of the extradition
question receiving two contradictory solutions, one legal, the other political,
and of an inconsistency between the decision of the Court and that of the
Security Council.
7. Such an inconsistency between the decisions of two United Nations organs
would be a matter of serious concern. For it is as a rule not the Court's role
to exercise appellate jurisdiction in respect of decisions taken by the Security
Council in the fulfilment of its fundamental mission of maintaining
international peace and security, no more than it is the role of the Security
Council to take the place of the Court, thereby impairing the integrity of its
international judicial function. But, at this stage of provisional measures
requested by Libya, the present case compels us to confront this possibility of
inconsistent decisions inasmuch as one of the Security Council's demands creates
a "grey area" in which powers may overlap and a jurisdictional
conflict comes into being. For the facts of this case give the Court the power
to indicate provisional measures to preserve the possible right of the Applicant
to refuse the extradition of two of its nationals, whereas the Security Council
has just taken a decision that is mandatory under Chapter VII of the Charter
calling for the extradition of these two individuals.
8. All the necessary conditions appear to me to have been fulfilled in order
that the Court should have the power to indicate provisional measures at the
request of the Applicant, pending a decision on the merits. First of all, no one
doubts that the Court has before it a legal dispute concerning very precise
questions of law arising from the interpretation and application of the 1971
Montreal Convention. Moreover the Court's competence is established on the basis
of Article 14, paragraph 1, of that Convention. This Article subjects the
submission of the matter to the Court to an initial requirement, namely, that
prior negotiations between the Parties should have taken place. This requirement
has been satisfied fully. The brief analysis I made earlier of the duality and
non-identity of the disputes submitted pari passu to the Court and the
Security Council shows that the negotiations sought with a view to settling the
question of the extradition were essentially and in view of their nature
destined never to become a reality. Since Libya refused to extradite its
nationals and proposed substitute solutions (surrender of the two suspects to
the United Nations, to the Arab League, to the judicial authorities of a third
country, or to an international judicial or arbitral body, whereas the United
Kingdom and the United States only offered Libya the choice between an
extradition that as a matter of principle was not negotiable or the adoption of
sanctions by the Security Council), it was obvious that the very notion of a
negotiating process was meaningless in such a context.
[pp. 40-41 D.O. Bedjaoui 3] 16. ... In fact, the two Orders of the
Court are limited to taking account of Security Council resolution 748 of 31
March 1992, which lays down sanctions taking effect against the Applicant State
on 15 April if it has not, inter alia, extradited its two nationals.
Hence, each of the two Orders contains an operative paragraph which is nothing
more than a rejection of the request for provisional measures. This rejection
does not appear to stem from the actual merits of the case and the intrinsic
value of the Application, but rather from considerations and decisions external
to the case, which could pose the problem of the integrity of the legal
function. The two Orders do not appear to be an expression of the Court's
discretionary power to refrain from indicating provisional measures; on the
contrary, they are a result of a power "constrained" by a decision of
the Security Council which, among other things, concerned the very object of the
legal dispute submitted to the Court.
17. A procedural point needs to be made at the outset. Within the context of
the political approach that the Security Council was perfectly entitled to adopt
in dealing with the wider case of the international responsibility of a State,
the Council adopted resolution 731 of 21 January 1992 under Chapter VI of the
Charter and resolution 748 of 31 March 1992 under Chapter VII. It is important
to establish the relationship between these resolutions and the legal dispute
submitted to the Court. When the Court was seised of the Libyan Applications on
3 March, resolution 731 (1992), the first one, had already been adopted and
the Parties had discussed it at length before the Court. Resolution 748 of 31
March 1992, on the other hand, was outside the purview of the case since it did
not yet have any legal existence when the proceedings before the Court came to
an end on 28 March 1992. A binding resolution of such importance, which had been
notified to all States and was opposable to each of them, was naturally known to
them. But it is one thing to know of that resolution and even to implement it,
and another to "rely" on it before an international court. Unless
formal (and adversary) procedures were instituted by the Parties to the dispute,
the Court, it would appear, was not obliged to take into account a resolution
passed after the closure of the proceedings and to apply it, retroactively as it
were, to the case which had been submitted to it. The Court nevertheless deemed
it better itself to take the initiative of eliciting the observations of the
Parties on this point, during the deliberations. Regardless of the opinion one
may have on the merits of this procedure, the fact is that resolution 748
(1992), which was adopted subsequent to the closure of the oral proceedings
before the Court, was considered by it.
[p. 59 D.O. Weeramantry 4] The proposition is unexceptionable that
where the Security Council is addressing a situation with direct implications
for the matter brought before the Court, the Court should examine whether its
actions would conflict with the actions that the Security Council has taken or
is considering and, where the circumstances permit, should seek to reinforce the
actions of the Council.
This is undoubtedly so, but the fact of Security Council action is only one
of the circumstances the Court would take into account and is by no means
conclusive. Since the Court and the Security Council may properly exercise their
respective functions with regard to an international dispute or situation, each
must in the exercise of the undoubted authority conferred on it exercise its
independent judgment in accordance with the Charter. It follows that their
assessment of a given situation will not always be in complete coincidence.
Especially where matters of legal interpretation are involved, the Court will
naturally zealously preserve its independence of judgment, for to do any less
would not be a proper compliance with the requirements of the Charter.
1 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, pp. 126-127. |
2 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, pp. 144-145. |
3 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 150-151. |
4 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 169. |