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| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.2. | Conditions for a Decision on the Merits |
| 2.2.6. | Mootness |
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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
[p. 46 J.Decl. Bedjaoui, Ranjeva, Koroma] To characterize as not exclusively preliminary the United Kingdom objection that the Security Council resolutions rendered the Libyan claims without object, and to postpone consideration of it to the merits stage, mean in our view that it is not sufficient to invoke the provisions of Chapter VII of the Charter so as to bring to an end ipso facto and with immediate effect all judicial argument on the Security Council's decisions. The Court will have to decide that point when it reaches the merits i of the case.2
[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.3
[p. 59 S.O. Kooijmans] 18. Since Security Council resolutions 748 (1992) and 883 (1993) have authoritatively but not definitively and for an indefinite period of time determined the matters at issue, the Court rightly concluded that the objection by the Respondent that the Libyan claims are without object does not have "an exclusively preliminary character" and will be considered by the Court when it reaches the merits of the case. By doing so the Court has upheld its function as it is defined in Article 38 of the Statute, viz., "to decide in accordance with international law such disputes as are submitted to it" at the same time respecting fully the competences which the Security Council has under the Charter.4
[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.5
[pp. 97-98 D.O. Oda] 42. The question remains whether these Security Council resolutions, particularly resolutions 748 (1992) and 883 (1993), which were adopted after the filing of the Application in this case, bear on the present case as brought by Libya. In other words, the question of whether Libya's 3 March 1992 Application has become without object after the adoption of these 31 March 1992 and 11 November 1993 Security Council resolutions is distinct from the case as presented by Libya. If there is any dispute in this respect, it could be a dispute between Libya and the Security Council or between Libya and the United Nations, or both, but not between Libya and the United Kingdom.
The effect of the Security Council resolutions (adopted for the aim of maintaining international peace and security) upon member States is a matter quite irrelevant to this case and the question of whether Libya's application is without object in the light of those resolutions hardly arises.6
| 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 | 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. |
| 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. |
| 5 | 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. |
| 6 | 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. |
