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Jurisprudence of the International Court of
Justice
Lockerbie Cases: Preliminary Objections
Andreas L. Paulus*
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom and Libyan Arab Jamhiriya v. United States of America, Judgment of 27 February 1998, for the texts see the website of the ICJ, <http://www.icj-cij.org/icjwww/idocket/iluk/ilukjudgment/iluk_ijudgment_frame.htm> and <http://www.icj-cij.org/icjwww/idocket/ilus/ilusjudgment/ilus_ijudgment_980227_frame.htm>
The Lockerbie cases were brought by Libya against the United Kingdom and the United States under the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. They concern the request made by the US and the UK (the respondents) to Libya (the applicant) to surrender two suspects allegedly responsible for the Lockerbie incident on 21 December 1988, in which 270 people were killed by the explosion of a bomb bringing down Pan Am flight 103 over Lockerbie (Scotland). In its Orders of 14 April 1992, the Court declined the indication of provisional measures (Article 41 of the ICJ Statute), holding that such an indication could impair rights prima facie enjoyed by the defendants pursuant to Security Council Resolution 748 (1992) under Articles 103 and 25 of the UN Charter.1 These orders have sparked an intense debate in the international legal community, particularly in relation to the issue of judicial review of Security Council resolutions.2 The present judgment, which rejects the preliminary objections of the defendants but does not deal with the substance of the matter, will invite second guesses over the attitude of the Court on the merits.
At first, the Court had to decide whether the UK had a right to appoint a judge ad hoc. Judge Higgins had been counsel of the UK in the Provisional Measures phase and had therefore asked to be excused from taking part in the decision of both cases (see Article 24 para. 1, 17 para. 2 of the Statute). Concerning the appointment of a judge ad hoc, ‘several parties in the same interest’ (‘plusieurs parties [qui] font cause commune’) shall be deemed as one party (Article 31 para. 5). By ten votes to three, the Court permitted the United Kingdom to appoint the former President of the Court, Sir Robert Y. Jennings, despite the presence of a judge of US nationality, President Schwebel, on the bench. This decision was attacked in a joint declaration by Judges Bedjaoui, Guillaume and Ranjeva as being contrary to the established jurisprudence of the Court,3 according to which two parties are considered to act in the same interests if they reach the same conclusions. Whereas all the preceding cases concerned the common interest of several applicants demanding a certain act or omission from a single party, in the present instance two respondents are charged with the violation of the Montreal Convention by separate – as opposed to one single – act. In this author’s opinion, therefore, the Court rightly took the risk that the two benches, differently composed, could arrive at differing judgments with effect inter partes (Article 59 of the Statute) on, in substance, identical legal questions.
The preliminary objections were based on Security Council Resolutions 748 (1992) and 883 (1993), which decided under Chapter VII of the Charter that Libya had to provide a full and effective response to the requests for extradition of the persons allegedly responsible for the terrorist act for trial in Scotland or the US. The defendants argued that these resolutions overrode the Montreal Convention and rendered the application inadmissible and without object.
With 13 votes to three, the Court upheld its jurisdiction (at para. 22 et seq.). The UK and the US had claimed that there was no dispute between the parties concerning the interpretation or application of the Montreal Convention as demanded by its Article 14, but, if at all, only between the applicant and the Security Council on the effects of the SC resolutions. In the opinion of the Court, however, several disputes4 existed between the parties concerning the Montreal Convention:5 first, on the Convention’s applicability to the present case (a jurisdiction which the Court calls ‘general’); secondly, on the alleged right of Libya itself to prosecute its nationals (Article 7); thirdly, on the alleged lack of assistance by the respondents to the Libyan prosecution (Article 11).
By maintaining ICJ jurisdiction, the judgment conceals rather than unfolds the disagreements within the Court on the impact of the SC resolutions. According to a broad interpretation of the judgment, the relationship between the Montreal Convention and the subsequent SC resolutions is a matter within the jurisdiction of the Court. Another, narrower reading is provided by Judges Fleischhauer and Guillaume in their joint declaration: it states that the ICJ jurisdiction only extends to interpreting and applying the Montreal Convention and not to the SC resolutions. The latter view seems more in line with the treaty-based jurisdiction of the Court in the present case; it would, however, considerably limit a judicial review of SC resolutions by the Court.
To reject the objections to the admissibility of Libya’s application, the Court relied on a rather narrow interpretation of its jurisprudence, according to which the admissibility of an application has to be judged at the date of filing.6 There remained the claim of mootness of the case because the SC resolutions had rendered the case without object. Beside objections to the jurisdiction of the Court and to the admissibility of an application, Article 79 para. 1 of the Rules of 14 April 1978 also speaks of ‘other objection[s] the decision upon which is requested before any further proceedings on the merits’.7 Para. 7 of Article 79, however, gives the Court the possibility to declare that an objection ‘does not possess, in the circumstances of the case, an exclusively preliminary character’, and to join it to the merits. This is what the Court did with a 10 to 6 majority, holding that the question concerned the ‘very subject-matter’ of the case. Thereby, the majority of the Court seems to indicate that it does not intend to avoid the question of the primacy of the SC resolutions over the Montreal Convention.
This has met with strong criticism by some judges. In their joint declaration, Judges Guillaume and Fleischhauer emphasize their narrow reading of the ICJ jurisdiction and argue that the matter of the prevalence of one or the other instrument has already been argued by the parties, does not require any further evidence and would end the case if decided in favour of the defendants. Agreeing with them on the jurisdiction issue (para. 8 of his separate opinion), Judge Kooijmans points out, however, that the SC resolutions do not definitively abrogate or change the existing obligations of the parties, but might only supersede them for the time they are in force (paras 17, 18). Accordingly, the Court could still decide on the rights and duties of the parties under the Montreal Convention, even if the SC resolutions superseded it for the time being.
The decision, therefore, leaves the substantive issues for the merits phase. But it has become apparent that there is no agreement within the Court as to whether its jurisdiction is limited to a pronouncement on the rights and duties of the parties pursuant to the Montreal Convention itself, or whether it also enables the Court to decide on the relationship between the Convention and subsequent SC resolutions. By a narrow margin, the Court seems to favour the second option. If this were the case, this decision would set the stage for a possible confrontation between the Security Council and the International Court. If the Court indeed extended the jurisdiction which was granted to it for the interpretation or application of a special convention to far reaching and fundamental questions of general international law and UN Charter law, it ought to be aware that it does not put into question the acceptance of its decisions by its state clientele.
*
Institut für Internationales Recht - Völkerrecht,
Ludwig-Maximilians-Universität München.
(1)
Questions of Interpretation and Application of the 1971 Montreal Convention
Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, ICJ Reports (1992) 3, at paras 41,
43; Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States), ICJ Reports (1992) 225, at paras 44, 46. The majorities
mentioned in this report refer to the case against the United Kingdom,
including Judge Ad Hoc Sir Robert Jennings. In the case against it, the United
States was not entitled to name a judge Ad Hoc, President Schwebel being a US
national.
(2) See
already the elaborate declarations, individual and dissenting opinions appended
to the order on provisional measures (ICJ Reports (1992), at 17 et seq.
and 129 et seq.). For the doctrinal debate – in which the issue has
been compared to such famous national decisions as Marbury v. Madison, 5
U.S. 137 (1803) – see, e.g., Alvarez, ‘Judging the Security
Council’, 90 AJIL (1996) 1; Gowlland-Debbas, ‘The Relationship
between the International Court of Justice and the Security Council in the
Light of the Lockerbie Case’, 88 AJIL (1994) 643; Graefrath,
‘Leave to the Court What Belongs to the Court: The Libyan Case’, 4
EJIL (1993) 184; Simma, ‘From Bilateralism to Community Interest in
International Law’, 250 RdC (1994-VI) 217, at 269–283), with
further references.
(3) The
judges relate to the following cases, in all of which the identity of the
interests of the applicants was at stake: PCIJ, Customs Régime
between Germany and Austria, Advisory Opinion, Order of 20 July 1931, PCIJ
Series A/B, No. 41, at 89; ICJ, South-West Africa Cases, Order of
20 May 1961, ICJ Reports (1961) 14; North Sea Continental Shelf ,
Order of 26 April 1968, ICJ Reports (1968) 10; Competence in Fisheries,
Judgment of 2 February 1973, FRG v. Iceland, ICJ Reports (1973) 51,
para. 7.
(4)
According to ICJ jurisprudence, a dispute is defined as ‘disagreements on
a point of law or fact, a conflict of legal views or of interests between two
persons’.
(5)
This ‘classical’ definition of a ‘dispute’ is contained in
the Mavrommatis decision of the PCIJ, Mavrommatis Palestine Concessions, PCIJ
1924, Series A, No. 2, at 11; cf. ICJ, East Timor (Portugal v.
Australia), ICJ Reports (1995) 100, with further references to the ICJ
jurisprudence.
(6) See
ICJ, Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, ICJ Reports (1988) 95, at para. 66: ‘The
critical date for determining the admissibility of an application is the date
on which it is filed.’ (official translation). But cf. the following
sentence: ‘[S]ubsequent events may render an application without
object.’ In the view of the present author, the charge of formalism and
legalism against the majority by the four dissenting judges (Herczegh,
Jennings, Oda, President Schwebel) seems to be justified. But indeed, as Judge
Kooijmans points out in his separate opinion, para. 11, the question whether
one discusses these points under the heading of admissibility or mootness is of
minor importance.
(7)
Official Source: ICJ Acts and Documents No. 5, 1989, at 92 et
seq.
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