                     111

                                   DECLARATION OF PRESIDENT YUSUF

                        Majority frames subject-matter of dispute in manner totally disconnected from
                     Applicant’s written and oral pleadings — This leads to mischaracterization of
                     subject-matter of dispute — Subject-matter of dispute concerns alleged measures
                     of racial discrimination on basis of “national origin”, not current nationality —
                     Majority should have applied long-standing jurisprudence in identifying subject-
                     matter of dispute — No need for factual assessment of measures complained of by
                     Qatar — Issues of fact are a matter for the merits — Whether “Qataris” form
                     distinct national origin and effects of impugned measures may only be addressed at
                     the merits stage — At this stage Court must only satisfy itself that such measures
                     are “capable of having an adverse effect” on enjoyment of rights protected under
                     Convention — They appear to have that effect in the present circumstances.

                                                   I. Introduction

                        1. I disagree with the conclusions of the Court and the reasoning of the
                     majority on two interrelated issues dealt with in the Judgment: (a) the
                     determination of the subject‑matter of the dispute; and (b) the jurisdic-
                     tion ratione materiae of the Court with regard to what is referred to as
                     “indirect discrimination”.
                        2. On the first issue, the entire reasoning of the Judgment turns on the
                     concept of “nationality”, without taking adequately into consideration
                     Qatar’s claims regarding racial discrimination on the basis of “national
                     origin”. By focusing almost exclusively on the question of nationality, the
                     formulation of the object of the claim chosen by the Applicant is ignored,
                     leading to the mischaracterization of the subject‑matter of the dispute. As
                     discussed below, this approach is inconsistent with the jurisprudence of
                     the Court on the determination of the subject‑matter of the dispute.

                        3. Secondly, apart from the fact that the above mischaracterization
                     results in an erroneous conclusion on the jurisdiction of the Court, the
                     majority also finds that some of the measures complained of by Qatar,
                     which are referred to as “indirect discrimination” in the Judgment, do not
                     fall within the provisions of the International Convention on the Elimina-
                     tion of All Forms of Racial Discrimination (hereinafter “CERD” or the
                     “Convention”), even if they have the purpose or effect of nullifying or
                     impairing the rights and freedoms of persons of Qatari national origin.
                     There is, however, no meaningful analysis in the Judgment to support
                     such a statement.

                     44

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                     112 	            application of the cerd (decl. yusuf)

                                     II. The Subject‑Matter of the Dispute

                       4. Qatar has consistently claimed that the measures adopted on 5 June
                     2017 by the United Arab Emirates (hereinafter the “UAE”) against
                     Qataris amount to a “distinction, exclusion, restriction or preference
                     based on . . . national . . . origin” both in purpose and in effect within the
                     meaning of Article 1, paragraph 1, of CERD. In its Application (AQ),
                     Qatar argued that “[t]he UAE has enacted and implemented a series of
                     discriminatory measures directed at Qataris based expressly on their
                     national origin” (AQ, para. 3; see also paras. 34, 44, 54, 58, 62‑63, 65 (a)
                     and 66 (a)); that the “blanket expulsion of Qataris from the UAE and
                     the ban on entry by Qataris into the UAE discriminate against Qataris on
                     the basis of national origin” (ibid., para. 59); that “[t]he UAE has also
                     enacted various measures interfering with rights to property based on
                     Qatari national origin” (ibid., para. 44; see also para. 63); and that “[t]he
                     UAE has . . . unlawfully targeted Qataris on the basis of their national
                     origin” (ibid., para. 54).

                        5. Similar statements are made by the Applicant in its Memorial (MQ)
                     and in its Written Statement (WSQ), clarifying that its claims were predi-
                     cated on “national origin” both in purpose and in effect (MQ, paras. 1.2,
                     1.8, 1.11‑1.13, 1.15, 1.23, 1.25, 3.5, 3.21, 3.24 and 3.86 to 3.113), and
                     alleging that the measures adopted by the UAE were “discriminatory in
                     both purpose and effect, by intentionally targeting and having a dispro-
                     portionately negative impact on persons of Qatari ‘national origin’ in the
                     historical‑cultural sense, irrespective of their present nationality” (WSQ,
                     para. 1.18). Moreover, during the oral proceedings, Qatar explained that
                     it “has from the beginning framed its case as one of discrimination ‘based
                     on’ national origin, including in the sense of intentional targeting and of
                     disparate impact” (CR 2020/7, p. 45, para. 40 (Amirfar)).

                       6. Instead of paying particular attention to the above formulation of
                     the dispute by the Applicant, as the Court has always done in deter
                     mining the subject‑matter of the dispute, the majority frames the subject‑
                     matter of the dispute in a manner totally disconnected from the Applicant’s
                     written and oral pleadings. For example, after quoting paragraph 2.6 of
                     Qatar’s Written Statement, which refers to acts and omissions of the UAE
                     that “discriminate against Qataris on the basis of national origin”
                     (paragraph 44 of the Judgment), the Judgment surprisingly states that
                     “[a]s can be seen from Qatar’s characterization of the subject-matter of
                     the dispute (see paragraph 44 above), Qatar makes three claims of racial
                     discrimination” (paragraph 56 of the Judgment). The Judgment then
                     proceeds to make an artificial classification of Qatar’s claims, the first
                     category of which is purportedly a “claim arising out of the ‘travel bans’
                     and ‘expulsion order’, which make express reference to Qatari nationals”
                     (ibid.). However, the text of Qatar’s Written Statement, quoted in para-

                     45

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                     113 	            application of the cerd (decl. yusuf)

                     graph 44 of the Judgment, and to which reference is made in para-
                     graph 56, does not mention even once the word “nationality”, while
                     it clearly explains that the alleged acts and omissions of the UAE dis-
                     criminate against Qataris “on the basis of national origin”. Nor does this
                     text provide a basis for the classification of Qatar’s claims into the three
                     categories indicated in the Judgment.
                        7. It is true that Qatar argued in its pleadings that the concept of
                     “national origin” in Article 1, paragraph 1, of CERD encompasses dis-
                     crimination based on nationality. Qatar based such interpretation on
                     General Recommendation XXX of the CERD Committee, which reads
                     as follows:
                            “Under the Convention, differential treatment based on citizenship
                          or immigration status will constitute discrimination if the criteria for
                          such differentiation, judged in the light of the objectives and purposes
                          of the Convention, are not applied pursuant to a legitimate aim, and
                          are not proportional to the achievement of this aim.” (CERD
                          Committee, General Recommendation XXX on Discrimination

                          against Non‑Citizens, UN doc. CERD/C/64/Misc.11/rev.3 (2005),
                          para. 4.)
                        8. In General Recommendation XXX, the CERD Committee seems to
                     suggest that a measure that seeks to differentiate between individuals on
                     the basis of their current nationality might, deliberately or inadvertently,
                     have a disproportionately adverse impact on a group of people having a
                     common “national or ethnic origin”, taking into account the objective
                     underlying that measure and the criteria chosen for differentiation, or
                     may not be applied pursuant to a legitimate aim, in which case it would
                     constitute discrimination under CERD.
                        9. The Court may endorse such interpretation or may decide, as the
                     majority appears to favour in the present Judgment, that the term
                     “national origin” cannot encompass measures predicated on current
                     nationality. In either case, it cannot be held, on the basis of the written
                     and oral pleadings of the Applicant, that the claims of Qatar mostly relate
                     to racial discrimination on grounds of current nationality, and that con-
                     sequently they fall outside the scope of the Convention as such. The content
                     of those pleadings clearly indicates otherwise.
                        10. The insistence of the majority on characterizing the subject‑matter of
                     the dispute in a manner which does not take into consideration the actual
                     formulation put forward by the Applicant in its written and oral pleadings
                     departs from a long‑standing jurisprudence of the Court referred to in para-
                     graph 42 of the Judgment itself. According to this jurisprudence, it is for the
                     Court to determine on an objective basis the subject‑matter of the dispute
                     between the Parties, “while giving particular attention to the formulation of
                     the dispute chosen by the applicant” (Obligation to Negotiate Access to the
                     Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
                     I.C.J. Reports 2015 (II), p. 602, para. 26; Territorial and Maritime Dispute
                     (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports

                     46

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                     114 	            application of the cerd (decl. yusuf)

                     2007 (II), p. 848, para. 38; Fisheries Jurisdiction (Spain v. Canada), Juris-
                     diction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 30).
                        11. Had the majority applied this jurisprudence to the present case, it
                     would have come to the conclusion that the subject‑matter of the dispute
                     relates to “the interpretation or application” of CERD, and that Qatar’s
                     claims fall squarely within the scope of Article 1, paragraph 1, of the
                     Convention, since those claims concern alleged measures of racial dis-
                     crimination on grounds of “national origin”.

                                III. The Jurisdiction of the Court with regard
                                          to “Indirect Discrimination”

                        12. According to the artificial classification of Qatar’s claims mentioned
                     above (para. 6), the only claim that is described as relating to discrimina-
                     tion on grounds of national origin is the so‑called claim of “indirect dis-
                     crimination”, as opposed to “direct” discrimination on the basis of
                     nationality; a distinction which has no basis in the text of the Convention.
                     However, even in the case of this claim, the majority concludes that,

                             “In the present case, while the measures based on current Qatari
                          nationality may have collateral or secondary effects on persons born
                          in Qatar or of Qatari parents, or on family members of Qatari citizens
                          residing in the UAE, this does not constitute racial discrimination
                          within the meaning of the Convention. In the Court’s view, the vari-
                          ous measures of which Qatar complains do not, either by their pur-
                          pose or by their effect, give rise to racial discrimination against Qataris
                          as a distinct social group on the basis of their national origin. The
                          Court further observes that declarations criticizing a State or its pol-
                          icies cannot be characterized as racial discrimination within the mean-
                          ing of CERD. Thus, the Court concludes that, even if the measures
                          of which Qatar complains in support of its ‘indirect discrimination’
                          claim were to be proven on the facts, they are not capable of consti-
                          tuting racial discrimination within the meaning of the Convention.”
                          (Paragraph 112 of the Judgment.)

                     The reasons of my disagreement with this sweeping statement are set out
                     below.
                        13. First, it is rather odd to find in a judgment on preliminary objec-
                     tions an attempt at a factual assessment of whether the measures com-
                     plained of actually constitute racial discrimination under CERD. In a
                     very recent judgment of the Court dealing also with jurisdiction ratione
                     materiae under CERD, it was clearly stated as follows:

                            “In order to determine whether it has jurisdiction ratione materiae
                          under CERD, the Court does not need to satisfy itself that the meas-

                     47

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                     115 	            application of the cerd (decl. yusuf)

                          ures of which Ukraine complains actually constitute ‘racial discrimi-
                          nation’ within the meaning of Article 1, paragraph 1, of CERD. Nor
                          does the Court need to establish whether, and, if so, to what extent,
                          certain acts may be covered by Article 1, paragraphs 2 and 3, of
                          CERD. Both determinations concern issues of fact, largely depending
                          on evidence regarding the purpose or effect of the measures alleged
                          by Ukraine, and are thus properly a matter for the merits, should the
                          case proceed to that stage.” (Application of the International Conven-
                          tion for the Suppression of the Financing of Terrorism and of the Inter-
                          national Convention on the Elimination of All Forms of Racial
                          Discrimination (Ukraine v. Russian Federation), Preliminary Objec-
                          tions, Judgment, I.C.J. Reports 2019 (II), p. 595, para. 94.)

                     In the present case, however, issues of fact, which are normally a matter
                     for the merits, appear to be summarily dismissed in a single paragraph at
                     the jurisdictional stage of the proceedings.
                        14. Secondly, the majority offers no meaningful analysis to support the
                     above‑mentioned statement. The question whether or not the term
                     “Qatari” is to be understood solely as synonymous to “current national-
                     ity” or as indicating “national origin”, or both, and whether as a conse-
                     quence measures targeting “Qataris” come within the ambit of Article 1
                     of CERD, is a question of fact that should be addressed at the merits
                     stage. In this connection, it is to be noted that the majority does not even
                     acknowledge — let alone examine — the Expert Report adduced by the
                     Applicant to establish that “Qataris” form, apart from a legal nationality,
                     a socio‑cultural national group distinct from the Emiratis (cf. MQ,
                     paras. 3.94‑3.112; MQ, Vol. VI, Ann. 162, Expert Report of Dr. J. E. Peter-
                     son dated 9 April 2019, paras. 28‑30; WSQ, para. 2.121).

                        15. Thirdly, the “Court’s view” cannot simply be asserted. It needs to
                     be based on legal and factual analysis. This is not the case here. The fact
                     that Article 1, paragraph 1, of CERD distinguishes between “purpose”
                     and “effect” suggests that, under CERD, discrimination may also derive
                     from the collateral effects of the measure on a particular group, without
                     having to establish a discriminatory purpose or intent. As the CERD
                     Committee observed in its General Recommendation XIV,

                          “particular actions may have varied purposes. In seeking to determine
                          whether an action has an effect contrary to the Convention, [the
                          Committee] will look to see whether that action has an unjustifiable
                           disparate impact upon a group distinguished by race, colour, descent,
                           or national or ethnic origin.” (CERD Committee, General Recom-
                           mendation XIV on Article 1, Paragraph 1, of the Convention,
                           UN doc. A/48/18 (1993), p. 115, para. 2.)

                     48

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                     116 	            application of the cerd (decl. yusuf)

                        16. Thus, a measure may amount to de facto racial discrimination when
                     it has a disproportionate effect on a group of people having a common
                     “national or ethnic origin”, regardless of whether that measure was
                     intended to target a particular “nationality”. This is essentially a question
                     of fact and may only be established after having heard both Parties in the
                     merits phase. It cannot be used at this stage of the proceedings to justify
                     a finding that the measures complained of by Qatar fall outside of the
                     scope of the jurisdiction of the Court, particularly when they are alleged
                     to have the purpose or effect of nullifying or impairing the rights and
                     freedoms of persons of Qatari national origin.

                        17. The determination of the jurisdiction of the Court ratione materiae
                     does not require the Court to satisfy itself at this preliminary stage that
                     the measures complained of by the Applicant constitute racial discrimina-
                     tion within the meaning of Article 1, paragraph 1, of the Convention.
                     What matters is whether the measures complained of by Qatar “are capa-
                     ble of having an adverse effect on the enjoyment of certain rights pro-
                     tected under CERD” (Application of the International Convention for the
                     Suppression of the Financing of Terrorism and of the International Conven-
                     tion on the Elimination of All Forms of Racial Discrimination (Ukraine v.
                     Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
                     2019 (II), p. 595, para. 96; see also Oil Platforms (Islamic Republic of
                     Iran v. United States of America), Preliminary Objection, Judgment,
                     I.C.J. Reports 1996 (II), p. 820, para. 51).
                        18. It is my view that the measures complained of by Qatar were capa-
                     ble of having such an adverse effect on persons of Qatari national origin,
                     and that the Court should have left the examination of the actual effect of
                     these measures for the merits stage.

                     (Signed) Abdulqawi Ahmed Yusuf.

                     49

6 Ord_1221.indb 94                                                                                4/08/22 08:26


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

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)

PRELIMINARY OBJECTIONS

JUDGMENT OF 27 FEBRUARY 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES QUESTIONS
D’INTERPRETATION ET D’APPLICATION
DE LA CONVENTION DE MONTREAL DE 1971
RESULTANT DE L’INCIDENT AERIEN
DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ROYAUME-UNI)

EXCEPTIONS PRÉLIMINAIRES

ARRÉT DU 27 FÉVRIER 1998
Official citation:

Questions of Interpretation and Application of the 1971 Montreal Conven-

tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya

v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 9

Mode officiel de citation:

Questions d'interprétation et d’application de la convention de Montréal

de 1971 résultant de l'incident aérien de Lockerbie (Jamahiriya arabe

libyenne c. Royaume-Uni), exceptions préliminaires, arrêt, C.I.J. Recueil
1998, p. 9

Sales number
ISSN 0074-4441 N° de vente: 698

ISBN 92-1-070761-3

INTERNATIONAL COURT OF JUSTICE

1998 YEAR 1998
27 February
General List

No. 88 27 February 1998

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)

PRELIMINARY OBJECTIONS

Objection to jurisdiction — Montreal Convention of 23 September 1971 —
Treaty in force between the Parties — Article 14, paragraph 1, of the Conven-
tion.

Grounds for lack of jurisdiction invoked in the provisional measures phase —
Arguments not reiterated in the present phase of the proceedings — Necessity
for the Court nonetheless to deal with those arguments — Negotiations
— Request for arbitration — Six-month period before the Court can be seised.

Contention that no legal dispute exists concerning the interpretation and
application of the Montreal Convention — Dispute of a general nature as to the
legal régime applicable to the destruction of the Pan Am aircraft over Lockerbie
— Specific disputes concerning the interpretation and application of Article 7 of
the Convention, read in conjunction with Articles 1, 5, 6 and 8, and the inter-
pretation and application of Article 11 of the Convention.

Contention that it is not for the Court to decide on the lawfulness of actions
instituted by the Respondent to secure the surrender of the two alleged offenders
— Jurisdiction of the Court to decide on the lawfulness of those actions in so far
as they would be at variance with the provisions of the Montreal Convention.

Security Council resolutions 748 (1992) and 883 (1993) — Adoption after
filing of the Application — Jurisdiction to be determined at the date of filing of
the Application.

4
10 1971 MONTREAL CONVENTION (JUDGMENT)

Objection to admissibility — Contention that Security Council resolutions
748 (1992) and 883 (1993) created legal obligations for the Parties which are
determinative of any dispute submitted to the Court — Admissibility to be
determined at the date of filing of the Application — Adoption of the resolutions
after the filing of the Application.

Contention that those resolutions rendered the Applicant's claims without
object — Objection to the Court proceeding to judgment on the merits —
Article 79, paragraph I, of the Rules of Court — “Preliminary” Objection —
Formal conditions for presentation — Article 79, paragraph 7, of the Rules of
Court — 1972 Revision — Objection which is “not exclusively” preliminary
containing “both preliminary aspects and other aspects relating to the merits”
— Rights on the merits constituting the very subject-matter of a decision on the
objection.

Fixing of time-limits for the further proceedings.

JUDGMENT

Present: Vice-President WEERAMANTRY, Acting President; President SCHWEBEL;
Judges Opa, BEDIAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCH-
HAUER, KOROMA, VERESHCHETIN, PARRA-ARANGUREN, KOOIMANS,
Rezex; Judges ad hoc Sir Robert Jennincs, EL-KosHeri; Registrar
VALENCIA-OSPINA.

In the case concerning questions of interpretation and application of the
1971 Montreal Convention arising from the aerial incident at Lockerbie,

between

the Great Socialist People’s Libyan Arab Jamahiriya,
represented by
H.E. Mr. Hamed Ahmed Elhouderi, Ambassador, Secretary of the People’s
Office of the Great Socialist People’s Libyan Arab Jamahiriya to the
Netherlands,
as Agent;
Mr. Mohamed A. Aljady,
Mr. Abdulhamid Raeid,
as Counsel;

Mr. Abdelrazeg El-Murtadi Suleiman, Professor of Public International
Law, Faculty of Law, University of Benghazi,

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter-
national Law, University of Oxford,

Mr. Jean Salmon, Professor of Law emeritus, Université libre de Bruxelles,

Mr. Eric Suy, Professor of International Law, Catholic University of Louvain
(K.U. Leuven),

Mr. Eric David, Professor of Law, Université libre de Bruxelles,

as Counsel and Advocates;
11 1971 MONTREAL CONVENTION (JUDGMENT)

Mr. Nicolas Angelet, Principal Assistant, Faculty of Law, Catholic Univer-
sity of Louvain (K.U. Leuven),

Mrs. Barbara Delcourt, Assistant, Faculty of Social, Political and Economic
Sciences, Université libre de Bruxelles; Research Fellow, Centre of Inter-
national Law and Institute of European Studies, Université libre de
Bruxelles,

Mr. Mohamed Awad,

as Advisers.
and

the United Kingdom of Great Britain and Northern Ireland,

represented by
Sic Franklin Berman, K.C.M.G., Q.C., Legal Adviser to the Foreign and
Commonwealth Office,
as Agent and Counsel;

The Right Honourable the Lord Hardie, Q.C., The Lord Advocate for Scot-
land,

Mr. Christopher Greenwood, Barrister, Professor of International Law at
the London School of Economics,

Mr. Daniel Bethlehem, Barrister, London School of Economics,

as Counsel;
Mr. Anthony Aust, C.M.G.,
as Deputy-Agent;

Mr. Patrick Layden, T.D.,
Mr. Norman McFadyen,
Ms Sarah Moore,

Ms Susan Hulton,

as Advisers;
Ms Margaret McKie,
as Secretary,

Tue Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 3 March 1992, the Government of the Great Socialist People’s Libyan
Arab Jamahiriya (hereinafter called “Libya”) filed in the Registry of the Court
an Application instituting proceedings against the Government of the United
Kingdom of Great Britain and Northern Ireland (hereinafter called “the United
Kingdom”) in respect of a “dispute . .. between Libya and the United King-
dom over the interpretation or application of the Montreal Convention” of
23 September 1971 for the Suppression of Unlawful Acts against the Safety of
Civil Aviation (hereinafter called “the Montreal Convention”). The Applica-
tion referred to the destruction, on 21 December 1988, over Lockerbie (Scot-
land), of the aircraft on Pan Am flight 103, and to charges brought by the Lord
Advocate for Scotland in November 1991 against two Libyan nationals sus-

6
12 1971 MONTREAL CONVENTION (JUDGMENT)

pected of having caused a bomb to be placed aboard the aircraft, which bomb
had exploded causing the aeroplane to crash. The Application invoked as the
basis for jurisdiction Article 14, paragraph 1, of the Montreal Convention.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the United Kingdom by the
Registrar; pursuant to paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.

3. Pursuant to Article 69, paragraph 3, of the Rules of Court, the Registrar
addressed to the Secretary General of the International Civil Aviation Organi-
zation the notification provided for in Article 34, paragraph 3, of the Statute.

Pursuant to Article 43 of the Rules of Court, the Registrar also addressed the
notification provided for in Article 63, paragraph 1, of the Statute to all those
States which, on the basis of information obtained from the depositary Gov-
ernments, appeared to be parties to the Montreal Convention.

4. Since the Court included upon the Bench no judge of Libyan nationality,
Libya exercised its right under Article 31, paragraph 2, of the Statute to choose
a judge ad hoc to sit in the case: it chose Mr. Ahmed Sadek El-Kosheri to
do so.

5. On 3 March 1992, immediately after the filing of its Application, Libya
submitted a request for the indication of provisional measures under Article 41
of the Statute.

By an Order dated 14 April 1992, the Court, after hearing the Parties, found
that the circumstances of the case were not such as to require the exercise of its
power to indicate provisional measures.

6. By an Order of 19 June 1992, having regard to the requests of the Parties,
the Court fixed 20 December 1993 as the time-limit for the filing by Libya of a
Memorial and 20 June 1995 as the time-limit for the filing by the United King-
dom of a Counter-Memorial.

Libya duly filed its Memorial within the prescribed time-limit.

7. Within the time-limit fixed for the filing of its Counter-Memorial, the
United Kingdom filed Preliminary Objections to the jurisdiction of the Court
and the admissibility of the Application.

Accordingly, by an Order of 22 September 1995, the Court, noting that by
virtue of Article 79, paragraph 3, of the Rules of Court the proceedings on the
merits were suspended, fixed 22 December 1995 as the time-limit within which
Libya might present a written statement of its observations and submissions on
the preliminary objections.

Libya filed such a statement within the time-limit so fixed, and the case
became ready for hearing in respect of the preliminary objections.

8. By a letter dated 19 February 1996, the Registrar, pursuant to Article 34,
paragraph 3, of the Statute, communicated copies of the written pleadings to
the Secretary General of the International Civil Aviation Organization and,
referring to Article 69, paragraph 2, of the Rules of Court, specified that, if the
Organization wished to present written observations to the Court, they should
be limited, at that stage, to questions of jurisdiction and admissibility.

By a letter of 26 June 1996, the Secretary General of the International Civil
Aviation Organization informed the Court that the Organization “ha[d] no
observations to make for the moment” but wished to remain informed about
the progress of the case, in order to be able to determine whether it would be
appropriate to submit observations later.

7
13 1971 MONTREAL CONVENTION (JUDGMENT)

9. By a letter dated 23 November 1995, the Registrar informed the Parties
that the Member of the Court having United Kingdom nationality had asked
to be excused from taking part in the decision of the case, pursuant to Ar-
ticle 24, paragraph 1, of the Statute. By a letter of 5 March 1997, the Deputy-
Agent of the United Kingdom, referring to Articles 31 of the Statute and 37 of
the Rules of Court, informed the Court of his Government’s intention to
choose Sir Robert Jennings to sit as judge ad hoc in the case. In accordance
with Article 35, paragraph 3, of the Rules of Court a copy of that letter was
communicated by the Registrar to the Libyan Government, which was informed
that 7 April 1997 had been fixed as the time-limit within which Libya could
make any observations it might wish to make. No observations from the
Libyan Government reached the Court within the time-limit thus fixed.

Having regard to the proceedings instituted by Libya against the United
States of America on 3 March 1992 in the case concerning Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), and to its composition in the present case in which a judge having
United States nationality was sitting, in accordance with Article 31, para-
graph 1, of the Statute, the Court instructed the Registrar to inform Libya and
the United Kingdom, and the United States of America, that it was prepared to
accept from them, no later than 30 June 1997, any observations they wished to
make in respect of the application of Article 31, paragraph 5, of the Statute.
The Registrar wrote to the three States on 30 May 1997 to that effect. Each of
the three Governments submitted observations within the prescribed time-limit.
After due deliberation, the Court, by ten votes to three, decided that in the
present phase relating to jurisdiction and admissibility in the two cases, the
United Kingdom and the United States of America were not parties in the
same interest within the meaning of Article 31, paragraph 5, of the Statute;
that the choice of a judge ad hoc by the United Kingdom was therefore justified
in the current phase of the proceedings in the present case; and that accord-
ingly Sir Robert Jennings would sit on the Bench for the purpose of the oral
proceedings and would take part in the deliberations by the Court in that phase
of the case. The Registrar notified that decision to Libya and to the United
Kingdom, and informed the United States of America of the decision, by letters
dated 16 September 1997.

10. The President of the Court, being a national of one of the Parties to the
case concerning Questions of Interpretation and Application of the 1971 Mon-
treal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), was unable, by virtue of Article 32,
paragraph 1, of the Rules of Court, to exercise the functions of the presidency
in respect of that case. Although that provision is not applicable in the present
case, the President thought it appropriate that he should not exercise the func-
tions of the presidency in the present case as well. It therefore fell to the Vice-
President, in accordance with Article 13, paragraph 1, of the Rules of Court, to
exercise the functions of the presidency in the case.

11. In accordance with Article 53, paragraph 2, of its Rules, the Court
decided to make accessible to the public, on the opening of the oral proceed-
ings, the Preliminary. Objections of the United Kingdom and the written state-
ment containing the observations and submissions of Libya on the objections,
as well as the documents annexed to those pleadings, with the exception of
Annex 16 to the Preliminary Objections.

8
14 1971 MONTREAL CONVENTION (JUDGMENT)

12. Public sittings were held between 13 and 22 October 1997, at which the
Court heard the oral arguments and replies of:

For the United Kingdom: Sir Franklin Berman,
The Right Honourable the Lord Hardie,
Mr. Daniel Bethlehem,
Mr. Christopher Greenwood.

For Libya: H.E. Mr. Hamed Ahmed Elhouderi,
Mr. Abdelrazeg El-Murtadi Suleiman,
Mr. Jean Salmon,
Mr. Eric David,
Mr. Eric Suy,
Mr. Ian Brownlie.

At the hearings, Members of the Court put questions to the Parties, who
answered in writing after the close of the oral proceedings.

*

13. In the Application, the following requests were made by Libya:

“Accordingly, while reserving the right to supplement and amend this
submission as appropriate in the course of further proceedings, Libya
requests the Court to adjudge and declare as follows:

(a) that Libya has fully complied with all of its obligations under the
Montreal Convention;

(b) that the United Kingdom has breached, and is continuing to breach,
its legal obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2) and 11
of the Montreal Convention; and

(c) that the United Kingdom is under a legal obligation immediately to
cease and desist from such breaches and from the use of any and all
force or threats against Libya, including the threat of force against
Libya, and from ail violations of the sovereignty, territorial integrity,
and the political independence of Libya.”

14. In the written proceedings, the following submissions were presented by
the Parties:

On behalf of the Government of Libya,
in the Memorial:

“For these reasons, while reserving the right to supplement and amend
these submissions as appropriate in the course of further proceedings,
Libya requests the Court to adjudge and declare as follows:

(a) that the Montreal Convention is applicable to this dispute;

(b) that Libya has fully complied with all of its obligations under the
Montreal Convention and is justified in exercising the criminal juris-
diction provided for by that Convention;

(c) that the United Kingdom has. breached, and is continuing to breach,
its legal obligations to Libya under Article 5, paragraphs 2 and 3,
Article 7, Article 8, paragraph 3, and Article 11 of the Montreal
Convention;

{d) that the United Kingdom is under a legal obligation to respect
Libya’s right not to have the Convention set aside by means which
15 1971 MONTREAL CONVENTION (JUDGMENT)

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.”

On behalf of the Government of the United Kingdom,

in the Preliminary Objections:

“For the reasons advanced, the United Kingdom requests the Court to
adjudge and declare that:

it lacks jurisdiction over the claims brought against the United Kingdom
by the Libyan Arab Jamahiriya

and/or
the claims brought against the United Kingdom by the Libyan Arab
Jamahiriya are inadmissible.”
On behalf of the Government of Libya,
in the written statement of its observations and submissions on the preliminary
objections:

“For these reasons, and reserving the right to complement or modify the
present submissions in the course of the proceedings if necessary, Libya
requests the Court to adjudge and declare:

— that the preliminary objections raised by the United Kingdom must be
rejected and that, as a consequence:

(a) the Court has jurisdiction to entertain the Application of Libya,
(b} that the Application is admissible;

— that the Court should proceed to the merits.”
15. In the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of the United Kingdom,
at the hearing of 20 October 1997:
“[T}he Court [is requested to] adjudge and declare that:

it lacks jurisdiction over the claims brought against the United Kingdom
by the Libyan Arab Jamahiriya

and/or

those claims are inadmissible;
and that the Court dismiss the Libyan Application accordingly.”

On behalf of the Government of Libya:
at the hearing of 22 October 1997:

“The Libyan Arab Jamahiriya requests the Court to adjudge and declare:

— that the preliminary objections raised by the United Kingdom . . .
must be rejected and that, as a consequence:

10
16 1971 MONTREAL CONVENTION (JUDGMENT)

(a) the Court has jurisdiction to entertain the Application of Libya,
(b) that the Application is admissible;

— that the Court should proceed to the merits.”

x * x

16. In the present case, the United Kingdom has raised two objec-
tions: one to the jurisdiction of the Court and the other to the admissi-
bility of the Application. According to the United Kingdom, “both of
these are objections of an essentially preliminary character”. :

+
* *

17. The Court will first consider the objection raised by the United
Kingdom to its jurisdiction.

18. Libya submits that the Court has jurisdiction on the basis of
Article 14, paragraph 1, of the Montreal Convention, which provides that:

“Any dispute between two or more Contracting States concerning
the interpretation or application of this Convention which cannot be
settled through negotiation, shall, at the request of one of them, be
submitted to arbitration. If within six months of the date of the
request for arbitration the Parties are unable to agree on the organi-
zation of the arbitration, any one of those Parties may refer the dis-
pute to the International Court of Justice by request in conformity
with the Statute of the Court.”

19. The Parties agree that the Montreal Convention is in force between
them and that it was already in force both at the time of the destruction
of the Pan Am aircraft over Lockerbie, on 21 December 1988, and at the
time of filing of the Application, on 3 March 1992. However, the Respon-
dent contests the jurisdiction of the Court because, in its submission, all
the requisites laid down in Article 14, paragraph 1, of the Montreal
Convention have not been complied with in the present case.

x * x

20. The Respondent expressly stated that it did not wish to contest
the jurisdiction of the Court on all of the same grounds it had relied
upon in the provisional measures phase of the proceedings, and restricted
itself to alleging that Libya had failed to show, first, that there existed a
legal dispute between the Parties and second, that such dispute, if any,
concerned the interpretation or application of the Montreal Conven-
tion and fell, as a result, within the terms of Article 14, paragraph 1, of
that Convention. Consequently, the United Kingdom did not, in the
present phase of the proceedings, reiterate its earlier arguments as to
whether or not the dispute that, in the opinion of Libya, existed between
the Parties could be settled by negotiation; whether Libya had made a

11
17 1971 MONTREAL CONVENTION (JUDGMENT)

proper request for arbitration; and whether the six-month period
required by Article 14, paragraph 1, of the Convention had been com-
plied with.

21. The Court nonetheless considers it necessary to deal briefly with
these arguments. It observes that in the present case the Respondent has
always maintained that the destruction of the Pan Am aircraft over
Lockerbie did not give rise to any dispute between the Parties regarding
the interpretation or application of the Montreal Convention, and that,
for that reason, in the Respondent’s view, there was nothing to be settled
by negotiation under the Convention; the Court notes that the arbitra-
tion proposal contained in the letter sent on 18 January 1992 by the
Libyan Secretary of the People’s Committee for Foreign Liaison and
International Co-operation to the Minister for Foreign Affairs of the
United Kingdom met with no answer; and it notes, in particular, that the
Respondent clearly expressed its intention not to accept arbitration — in
whatever form — when presenting and strongly supporting resolution
731 (1992) adopted by the Security Council three days later, on 21 Janu-
ary 1992.

Consequently, in the opinion of the Court the alleged dispute between
the Parties could not be settled by negotiation or submitted to arbitration
under the Montreal Convention, and the refusal of the Respondent to
enter into arbitration to resolve that dispute absolved Libya from any
obligation under Article 14, paragraph 1, of the Convention to observe a
six-month period starting from the request for arbitration, before seising
the Court.

x x

22. As recalled by the Parties, the Permanent Court of International
Justice stated in 1924 that “[a] dispute is a disagreement on a point of law
or fact, a conflict of legal views or of interests between two persons”
(Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A, No. 2,
p. 11). The present Court for its part, in its Judgment of 30 June 1995 in
the case concerning East Timor (Portugal v. Australia), emphasized the
following:

“In order to establish the existence of a dispute, ‘It must be
shown that the claim of one party is positively opposed by the
other’ (South West Africa, Preliminary Objections, Judgment,
LC J. Reports 1962, p. 328); and further, “Whether there exists an
international dispute is a matter for objective determination’ (Inter-
pretation of Peace Treaties with Bulgaria, Hungary and Romania,
First Phase, Advisory Opinion, I C.J. Reports 1950, p. 74).” (I C.JT.
Reports 1995, p. 100.)

12
18 1971 MONTREAL CONVENTION (JUDGMENT)

23. In its Application and Memorial, Libya maintained that the
Montreal Convention was the only instrument applicable to the destruc-
tion of the Pan Am aircraft over Lockerbie, for the following reasons:

(a) the Respondent and Libya are bound by the Montreal Convention
which is in force between the Parties;

(b) the Montreal Convention is specifically aimed at preventing that
type of action (third paragraph of the Preamble);

(c) the actions ascribed to the Libyan nationals are covered by Article 1
of the Montreal Convention;

(d) “the system of the Montreal Convention, as compared to the system
of the Charter, is both a lex posterior and a lex specialis; conse-
quently, for matters covered by that Convention, it must a priori
take precedence over the systems for which the Charter provides”;
and

(e) there is no other convention concerning international criminal law
in force which is applicable to these issues in the relations between
Libya and the United Kingdom.

24. The United Kingdom does not deny that, as such, the facts of the
case could fall within the terms of the Montreal Convention. However, it
emphasizes that, in the present case, from the time Libya invoked the
Montreal Convention, the United Kingdom has claimed that it was not
relevant as the question to be resolved had to do with “the .. . reaction of
the international community to the situation arising from Libya’s failure
to respond effectively to the most serious accusations of State involve-
ment in acts of terrorism”.

25. Consequently, the Parties differ on the question whether the destruc-
tion of the Pan Am aircraft over Lockerbie is governed by the Montreal
Convention. A dispute thus exists between the Parties as to the legal
régime applicable to this event. Such a dispute, in the view of the Court,
concerns the interpretation and application of the Montreal Convention,
and, in accordance with Article 14, paragraph 1, of the Convention, falls
to be decided by the Court.

Ed

26. Furthermore, in its Application and Memorial, Libya stressed the
following six points in particular in support of the submissions set forth,
respectively, in paragraph 13 (subparagraphs (a) and (b)}) and para-
graph 14 (subparagraphs (b) and (c)), above:

(a) the actions which brought about the destruction of the Pan Am
aircraft over Lockerbie constitute one of the offences covered by
Article 1 of the Montreal Convention and therefore the Montreal
Convention must be applied to those facts;

(b) Libya has complied with the obligation imposed by Article 5, para-
graph 2, of the Montreal Convention of establishing its jurisdiction
over the alleged offenders in the destruction of the aircraft, and it
has the right to exercise the jurisdiction so established ;

13
19
(c)

(d)

(e)

(f)

1971 MONTREAL CONVENTION (JUDGMENT)

Libya has exercised its jurisdiction over the two alleged offenders on
the basis of its Penal Code, and the Respondent should not interfere
with the exercise of that jurisdiction;

Libya has exercised the rights conferred by Article 6 of the Montreal
Convention by taking all necessary measures to ensure the presence
of the two alleged offenders, making preliminary enquiries, notify-
ing the States concerned and indicating that it intended to exercise
jurisdiction, but the Respondent, by its actions and threats, is
attempting, according to Libya, to prevent the application of the
Convention;

Libya having decided not to extradite the two alleged offenders,
Article 7 of the Montreal Convention gives it the right to submit
them to its competent authorities for the purpose of prosecution in
accordance with Libyan law; and

on the basis of Article 8, paragraph 3, of the Montreal Convention,
it has the right not to extradite the two alleged offenders because
they are Libyan nationals and the Libyan Constitution does not per-
mit their extradition.

27. The Respondent disputes that the Montreal Convention confers
on Libya the rights it claims to enjoy. It contends, moreover, that none of
the provisions referred to by Libya imposes obligations on the United
Kingdom. Finally, it recalls. that it never itself invoked the Montreal
Convention, and observes that nothing in that Convention prevented it
from requesting the surrender of the two alleged offenders outside the
framework of the Convention.

28. Article 1 of the Montreal Convention provides as follows:

14

“1. Any person commits an offence if he unlawfully and inten-
tionally:

(a) performs.an act of violence against a person on board an air-
craft in flight if that act is likely to endanger the safety of that
aircraft; or

(b) destroys an aircraft in service or causes damage to such an air-
craft which renders it incapable of flight or which is likely to
endanger its safety in flight; or

(c) places or causes to be placed on an aircraft in service, by any
means whatsoever, a device or substance which is likely to
destroy that aircraft, or to cause damage to it which renders it
incapable of flight, or to cause damage to it which is likely to
endanger its safety in flight; or

(d} destroys or damages air navigation facilities or interferes with
their operation, if any such act is likely to endanger the safety
of aircraft in flight; or

(e) communicates information which he knows to be false, thereby
endangering the safety of an aircraft in flight.
20

1971 MONTREAL CONVENTION (JUDGMENT)

2. Any person also commits an offence if he:

(a) attempts to commit any of the offences mentioned in para-
graph 1 of this Article; or

(b) is an accomplice of a person who commits or attempts to com-
mit any such offence.”

Article 5 provides:

“1. Each Contracting State shall take such measures as may be
necessary to establish its jurisdiction over the offences in the follow-
ing cases:

{a} when the offence is committed in the territory of that State;

(b) when the offence is committed against or on board an aircraft
registered in that State;

(c) when the aircraft on board which the offence is committed
lands in its territory with the alleged offender still on board;

(d) when the offence is committed against or on board an aircraft
leased without crew to a lessee who has his principal place of
business or, if the lessee has no such place of business, his per-
manent residence, in that State.

2. Each Contracting State shall likewise take such measures as
may be necessary to establish its jurisdiction over the offences men-
tioned in Article 1, paragraph 1 (a), (b) and (c), and in Article 1,
paragraph 2, in so far as that paragraph relates to those offences, in
the case where the alleged offender is present in its territory and it
does not extradite him pursuant to Article 8 to any of the States
mentioned in paragraph 1 of this Article.

3. This Convention does not exclude any criminal jurisdiction
exercised in accordance with national law.”

Article 6, for its part, states:

15

“1. Upon being satisfied that the circumstances so warrant, any
Contracting State in the territory of which the offender or the
alleged offender is present, shall take him into custody or take other
measures to ensure his presence. The custody and other measures
shall be as provided in the law of that State but may only be con-
tinued for such time as is necessary to enable any criminal or extra-
dition proceedings to be instituted.

2. Such State shail immediately make a preliminary enquiry into
the facts.

3. Any person in custody pursuant to paragraph 1 of this Article
shall be assisted in communicating immediately with the nearest
appropriate representative of the State of which he is a national.

4. When a State, pursuant to this Article, has taken a person into
21 1971 MONTREAL CONVENTION (JUDGMENT)

custody, it shall immediately notify the States mentioned in Ar-
ticle 5, paragraph 1, the State of nationality of the detained person
and, if it considers it advisable, any other interested State of the fact
that such person is in custody and of the circumstances which war-
rant his detention. The State which makes the preliminary enquiry
contemplated in paragraph 2 of this Article shall promptly report its
findings to the said States and shall indicate whether it intends to
exercise jurisdiction.”

Article 7 is worded in the following terms:

“The Contracting State in the territory of which the alleged
offender is found shall, if it does not extradite him, be obliged, with-
out exception whatsoever and whether or not the offence was com-
mitted in its territory, to submit the case to its competent authorities
for the purpose of prosecution. Those authorities shall take their
decision in the same manner as in the case of any ordinary offence of
a serious nature under the law of that State.”

Finally, in the words of Article 8:

“1. The offences shall be deemed to be included as extraditable
offences in any extradition treaty existing between Contracting
States. Contracting States undertake to include the offences as extra-
ditable offences in every extradition treaty to be concluded between
them.

2. If a Contracting State which makes extradition conditional on
the existence of a treaty receives a request for extradition from
another Contracting State with which it has no extradition treaty, it
may at its option consider this Convention as the legal basis for
extradition in respect of the offences. Extradition shall be subject to
the other conditions provided by the law of the requested State.

3. Contracting States which do not make extradition conditional
on the existence of a treaty shall recognize the offences as extra-
ditable offences between themselves subject to the conditions pro-
vided by the law of the requested State.

4. Each of the offences shall be treated, for the purpose of extra-
dition between Contracting States, as if it had been committed not
only in the place in which it occurred but also in the territories of the
States required to establish their jurisdiction in accordance with
Article 5, paragraph 1 (b), (c) and (d).”

29. In view of the positions put forward by the Parties, the Court finds
that there exists between them not only a dispute of a general nature, as
defined in paragraph 25 above, but also a specific dispute which concerns
the interpretation and application of Article 7 — read in conjunction
with Article 1, Article 5, Article 6 and Article 8 — of the Montreal

16
22 1971 MONTREAL CONVENTION (JUDGMENT)

Convention and which, in accordance with Article 14, paragraph 1, of
the Convention, falls to be decided by the Court.

*

30. Furthermore, Libya maintained in its Application and Memorial
that, once it had commenced its judicial investigation of the two alleged
offenders, the Respondent was, according to Article 11, paragraph 1, of
the Montreal Convention, under an obligation to hand over to the
Libyan authorities all the evidence in its possession regarding the offence.
In Libya’s opinion, this obligation was not duly complied with, because
the United Kingdom only transmitted “a copy of the statement of the
facts” against the accused, a document that “contains no evidence of
which the Libyan judiciary could make use”.

31. In this connection, the United Kingdom acknowledges that “Ar-
ticle 11, paragraph 1, differs from the other provisions on which Libya
has relied, in that it does impose obligations on other States” and “is thus
capable, in the abstract, of giving rise to a dispute between Libya and the
United Kingdom”. However, it maintains that it did not violate this pro-
vision, and claims in particular that it “provided Libya with copies of the
Scottish charges, the warrant for the arrest of the accused and the State-
ment of Facts prepared by the Lord Advocate”. It also recalls that at the
time when Libya presented its claims, Libya had not — any more than
had the United Kingdom — invoked the Montreal Convention, and it
concluded that,

“For the failure of the United Kingdom to supply further infor-
mation to Libya to constitute a violation of Article 11, the Conven-
tion must at least have been invoked by one of the States con-
cerned.”

32. Article 11 of the Montreal Convention is worded as follows:

“1. Contracting States shall afford one another the greatest mea-
sure of assistance in connection with criminal proceedings brought
in respect of the offences. The law of the State requested shall apply
in all cases.

2. The provisions of paragraph 1 of this Article shall not affect
obligations under any other treaty, bilateral or multilateral, which
governs or will govern, in whole or in part, mutual assistance in
criminal matters.”

33. Having taken account of the positions of the Parties as to the
duties imposed by Article 11 of the Montreal Convention, the Court con-
cludes that there equally exists between them a dispute which concerns
the interpretation and application of that provision, and which, in accor-

17
23 1971 MONTREAL CONVENTION (JUDGMENT)

dance with Article 14, paragraph 1, of the Convention, falls to be decided
by the Court.

oe

34. Libya, in the latest version of its submissions, finally asks the
Court to find that

“the United Kingdom is under a legal obligation 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 inde-
pendence of States”. |

35. The United Kingdom maintains that it is not for the Court, on the
basis of Article 14, paragraph 1, of the Montreal Convention, to decide
on the lawfulness of actions which are in any event in conformity with
international law, and which were instituted by the Respondent to secure
the surrender of the two alleged offenders. It concludes from this that the
Court lacks jurisdiction over the submissions presented on this point by
Libya.

36. The Court cannot uphold the line of argument thus formulated.
Indeed, it is for the Court to decide, on the basis of Article 14, para-
graph 1, of the Montreal Convention, on the lawfulness of the actions
criticized by Libya, in so far as those actions would be at variance with
the provisions of the Montreal Convention.

+

37. In the present case, the United Kingdom has contended, however,
that even if the Montreal Convention did confer on Libya the rights it
claims, they could not be exercised in this case because they were super-
seded by Security Council resolutions 748 (1992) and 883 (1993) which,
by virtue of Articles 25 and 103 of the United Nations Charter, have pri-
ority over all rights and obligations arising out of the Montreal Conven-
tion. The Respondent has also argued that, because of the adoption of
those resolutions, the only dispute which existed from that point on was
between Libya and the Security Council; this, clearly, would not be a dis-
pute falling within the terms of Article 14, paragraph 1, of the Montreal
Convention and thus not one which the Court could entertain.

38. The Court cannot uphold this line of argument. Security Council
resolutions 748 (1992) and 883 (1993) were in fact adopted after the filing
of the Application on 3 March 1992. In accordance with its established
jurisprudence, if the Court had jurisdiction on that date, it continues to
do so; the subsequent coming into existence of the above-mentioned

18
24 1971 MONTREAL CONVENTION (JUDGMENT)

resolutions cannot affect its jurisdiction once established (cf. Nottebohm,
Preliminary Objection, Judgment, I C.J. Reports 1953, p. 122; Right of
Passage over Indian Territory, Preliminary Objections, Judgment, I CJ.
Reports 1957, p. 142).

ko

39. In the light of the foregoing, the Court concludes that the objec-
tion to jurisdiction raised by the United Kingdom on the basis of the
alleged absence of a dispute between the Parties concerning the interpre-
tation or application of the Montreal Convention must be rejected, and
that the Court has jurisdiction to hear the disputes between Libya and
the United Kingdom as to the interpretation or application of the provi-
sions of that Convention.

x * x

40. The Court will now proceed to consider the objection of the
United Kingdom that the Libyan Application is not admissible.

41. The principal argument of the United Kingdom in this context is
that

“what Libya claims to be the issue or issues in dispute between it and
the United Kingdom are now regulated by decisions of the Security
Council, taken under Chapter VII of the Charter of the United
Nations, which are binding on both Parties and that (if there is any
conflict between what the resolutions require and rights or obliga-
tions alleged to arise under the Montreal Convention) the resolu-
tions have overriding effect in accordance with Article 103 of the
Charter”.

In this connection, the United Kingdom explains that

“resolutions 748 and 883 are legally binding and they create legal
obligations for Libya and the United Kingdom which are determi-
native of any dispute over which the Court might have jurisdiction”.

According to the United Kingdom, those resolutions require the surren-
der of the two suspects by Libya to the United Kingdom or the United
States for trial, and this determination by the Security Council is binding
on Libya irrespective of any rights it may have under the Montreal
Convention. On this basis, the United Kingdom maintains that

“the relief which Libya seeks from the Court under the Montreal
Convention is not open to it, and that the Court should therefore
exercise its power to declare the Libyan Application inadmissible”.

19
25 1971 MONTREAL CONVENTION (JUDGMENT)

The United Kingdom also argues that, should the Court be minded to
consider the questions raised by Libya on the Montreal Convention with-
out regard to the effect of the Security Council resolutions, it would find
itself in the position of having to proceed to a consideration of the merits
of those matters; if the Court were then to rule in favour of the position
advanced by Libya, it would presumably pronounce judgment on that
basis, although such a judgment would be neither applicable nor enforce-
able in view of prior decisions of the Security Council which remain in
force.

The United Kingdom also adds that the terms of the resolutions con-
cerned, as well as the relevant provisions of the Charter, have been fully
argued before the Court. The Court would therefore need no further
material deriving from argument on the merits to enable it to interpret
the decisions of the Security Council or determine their effects.

42. For its part, Libya argues that it is clear from the actual terms of
resolutions 731 (1992), 748 (1992) and 883 (1993) that the Security Coun-
cil has never required it to surrender its nationals to the United Kingdom
or the United States; it stated at the hearing that this remained “Libya’s
principal argument”. It added that the Court must interpret those reso-
lutions “in accordance with the Charter, which determined their validity”
and that the Charter prohibited the Council from requiring Libya to
hand over its nationals to the United Kingdom or the United States.
Libya concludes that its Application is admissible “as the Court can use-
fully rule on the interpretation and application of the Montreal Conven-
tion . . . independently of the legal effects of resolutions 748 (1992) and
883 (1993)”.

Libya also observes that the arguments of the United Kingdom based
on the provisions of the Charter raise problems which do not possess an
exclusively preliminary character, but appertain to the merits of the dis-
pute. It argues in particular that the question of the effect of the Security
Council resolutions is not of an exclusively preliminary character, inas-
much as the resolutions under consideration are relied upon by the
United Kingdom in order to overcome the application of the Montreal
Convention, and since Libya is justified in disputing that these resolu-
tions are opposable to it.

43. Libya furthermore draws the Court’s attention to the principle
that “The critical date for determining the admissibility of an application
is the date on which it is filed” (Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports
1988, p. 95, para. 66). It points out in this connection that its Application
was filed on 3 March 1992; that Security Council resolutions 748 (1992)
and 883 (1993) were adopted on 31 March 1992 and 11 November 1993,
respectively; and that resolution 731 (1992) of 21 January 1992 was not
adopted under Chapter VII of the United Nations Charter and was only
a mere recommendation. Consequently, Libya argues, its Application is
admissible in any event.

20
26 1971 MONTREAL CONVENTION (JUDGMENT)

44. In the view of the Court, this last submission of Libya must be
upheld. The date, 3 March 1992, on which Libya filed its Application, is
in fact the only relevant date for determining the admissibility of the
Application. Security Council resolutions 748 (1992) and 883 (1993) can-
not be taken into consideration in this regard since they were adopted at
a later date. As to Security Council resolution 731 (1992), adopted before
the filing of the Application, it could not form a legal impediment to the
admissibility of the latter because it was a mere recommendation without
binding effect, as was recognized moreover by the United Kingdom itself.
Consequently, Libya’s Application cannot be held inadmissible on these
grounds.

45. In the light of the foregoing, the Court concludes that the objec-
tion to admissibility derived by the United Kingdom from Security
Council resolutions 748 (1992) and 883 (1993) must be rejected, and that
Libya’s Application is admissible.

x * +

46. In dealing with admissibility, the Agent of the United Kingdom
also stated that his Government “ask[ed] the Court to rule that the inter-
vening 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,
LCJ. 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, I C.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 deci-
sion upon which is requested before any further proceedings”. There can
be no doubt that the objection envisaged here formally meets this condi-
tion. The Court would also indicate that, in this instance, the Respondent
is advancing the argument that the decisions of the Security Council

21
27 1971 MONTREAL CONVENTION (JUDGMENT)

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 pre-
vent, in limine, any consideration of the case on the merits, so that its
“effect [would] be, if the objection is upheld, to interrupt further proceed-
ings 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.LJ., Series AIB, No. 76, p. 16), this objec-
tion 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 sub-
mitted in writing within the time-limit fixed for the filing of the Counter-
Memorial, and was thus submitted in accordance with the formal condi-
tions 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 exclu-
sively 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” pre-
liminary 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,

22
28

1971 MONTREAL CONVENTION (JUDGMENT)

“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 admin-
istration of justice require it’ (Panevezys-Saldutiskis Railway,
P.C.LJ., Series AlB, 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. ).” (1 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 pro-
longation of an expensive and time-consuming procedure.” (Jibid.,
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 quite 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.” (bid, 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 mer-
its” or not.

That objection relates to many aspects of the dispute. By maintaining

that Security Council resolutions 748 (1992) and 883 (1993) have ren-
dered the Libyan claims without object, the United Kingdom seeks to
obtain from the Court a decision not to proceed to judgment on the

23
29 1971 MONTREAL CONVENTION (JUDGMENT)

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 establish-
ing 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
“touchling] upon subjects belonging to the merits of the case” (Certain
German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6,
1925, P.C.I.J., 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, Csäky, Esterhadzy, Order of
23 May 1936, P.C.LJ., Series AIB, No. 66, p. 9).

If the Court were to rule on that objection, it would therefore inevi-
tably 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 ren-
dered without object does not have “an exclusively preliminary charac-
ter” within the meaning of that Article.

51. Having established its jurisdiction and concluded that the Applica-
tion is admissible, the Court will be able to consider this objection when
it reaches the merits of the case.

x * x

52. In accordance with Article 79, paragraph 7, of the Rules of Court,

time-limits for the further proceedings shall be fixed subsequently by the
Court.

24
30 1971 MONTREAL CONVENTION (JUDGMENT)

53. For these reasons,
THE Court,

(1) (a) By thirteen votes to three,

Rejects the objection to jurisdiction raised by the United Kingdom on
the basis of the alleged absence of a dispute between the Parties concern-
ing the interpretation or application of the Montreal Convention of
23 September 1971;

IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,

Guillaume, Ranjeva, Herezegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judge Oda; Judge ad hoc Sir Robert Jennings;

(b) By thirteen votes to three,

Finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of
the Montreal Convention of 23 September 1971, to hear the disputes
between Libya and the United Kingdom as to the interpretation or appli-
cation of the provisions of that Convention;

IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judge Oda; Judge ad hoc Sir Robert Jennings;

(2) (a) By twelve votes to four,

Rejects the objection to admissibility derived by the United Kingdom
from Security Council resolutions 748 (1992) and 883 (1993);

IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-
Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda, Herczegh; Judge ad hoc Sir
Robert Jennings;

(b) By twelve votes to four,
Finds that the Application filed by Libya on 3 March 1992 is admissible;

IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,
Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-
Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda, Herczegh; Judge ad hoc Sir
Robert Jennings ;

25
31 1971 MONTREAL CONVENTION (JUDGMENT)

(3) By ten votes to six,

Declares that the objection raised by the United Kingdom according to
which Security Council resolutions 748 (1992) and 883 (1993) have ren-
dered the claims of Libya without object does not, in the circumstances
of the case, have an exclusively preliminary character.

IN FAVOUR: Vice-President Weeramantry, Acting President; Judges Bedjaoui,

Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda, Guillaume, Herczegh, Fleisch-
hauer; Judge ad hoc Sir Robert Jennings.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of February, one
thousand nine hundred and ninety-eight, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Government of the Great Socialist People’s Libyan Arab Jamahiriya
and the Government of the United Kingdom of Great Britain and
Northern Ireland, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judges BEDIAOUI, GUILLAUME and RANJEVA append a joint declaration to
the Judgment of the Court; Judges BEpDJaout, RANJEVA and Koroma append
a joint declaration to the Judgment of the Court; Judges GUILLAUME and
FLEISCHHAUER append a joint declaration to the Judgment of the Court;
Judge HERCZEGH appends a declaration to the Judgment of the Court.

Judges Koormans and REZEK append separate opinions to the Judg-
ment of the Court.

President SCHWEBEL, Judge ODA and Judge ad hoc Sir Robert JENNINGS
append dissenting opinions to the Judgment of the Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

26


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
BETWEEN NICARAGUA AND HONDURAS
IN THE CARIBBEAN SEA

(NICARAGUA v. HONDURAS)

ORDER OF 21 MARCH 2000

2000

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION MARITIME
ENTRE LE NICARAGUA ET LE HONDURAS
DANS LA MER DES CARAIBES

(NICARAGUA c. HONDURAS)

ORDONNANCE DU 21 MARS 2000
Official citation:

Maritime Delimitation between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras),
Order of 21 March 2000, I.C.J. Reports 2000, p. 6

Mode officiel de citation:

Délimitation maritime entre le Nicaragua et le Honduras
dans la mer des Caraïbes (Nicaragua c. Honduras),
ordonnance du 21 mars 2000, C.J. Recueil 2000, p. 6

Sales number
ISSN 0074-4441 N° de vente: 774

ISBN 92-1-070848-2

21 MARCH 2000

ORDER

MARITIME DELIMITATION BETWEEN NICARAGUA
AND HONDURAS IN THE CARIBBEAN SEA

(NICARAGUA ». HONDURAS)

DÉLIMITATION MARITIME ENTRE LE NICARAGUA
ET LE HONDURAS DANS LA MER DES CARAÏBES

(NICARAGUA c. HONDURAS)

21 MARS 2000

ORDONNANCE
COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000 2000
21 mars
Rôle général
21 mars 2000 n° 120

AFFAIRE DE LA DÉLIMITATION MARITIME
ENTRE LE NICARAGUA ET LE HONDURAS
DANS LA MER DES CARAÏBES

(NICARAGUA c. HONDURAS)

ORDONNANCE

Présents: M. GUILLAUME, président; M. SHi, vice-président; MM. Opa,
BEDJAOUI, RANJEVA, FLEISCHHAUER, KOROMA, VERESHCHETIN,
M™* Hiccins, MM. PARRA-ARANGUREN, KOOUMANS, REZEK,
BUERGENTHAL, juges; M. COUVREUR, greffier.

La Cour internationale de Justice,

Ainsi composée,

Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, para-
graphe |, et 48 de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 8 décembre 1999, par
laquelle la République du Nicaragua a introduit une instance contre
la République du Honduras au sujet d’un différend relatif à la délimi-
tation des zones maritimes relevant de chacun des Etats dans la mer des
Caraïbes;

Considérant que, le 8 décembre 1999, une copie certifiée conforme de
la requête a été transmise à la République du Honduras;

Considérant que la République du Nicaragua a désigné comme agent
S. Exc. M. Carlos Argüello Gomez, ambassadeur; et que la République
du Honduras a désigné comme agent S. Exc. M. Max Velasquez Diaz,
ambassadeur ;
DELIMITATION MARITIME (ORD. 21 IFI 00) 7

Considérant que, au cours d’une réunion que le président de la Cour a
tenue avec des représentants des Parties le 4 février 2000, agent du Nica-
ragua a indiqué qu’aux fins de préparer son mémoire son gouvernement
souhaitait pouvoir disposer d’un délai de neuf mois à compter de la date
de l'ordonnance que ja Cour rendrait; et que le représentant du Hon-
duras a déclaré ne pas avoir reçu de mandat pour exprimer les vues de
son gouvernement sur cette question;

Considérant que, par lettre du 21 février 2000, l’agent du Honduras a
fait savoir à la Cour que son gouvernement proposait que les deux
Parties disposent successivement d’un délai de douze mois pour préparer
leur première pièce de procédure; et que, par lettre du 10 mars 2000,
l'agent du Nicaragua a informé la Cour que son gouvernement ne voyait
pas d’objection à ce qu’il en soit ainsi;

Compte tenu de l'accord des Parties,

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite:

Pour le mémoire de la République du Nicaragua, le 21 mars 2001;

Pour le contre-mémoire de la République du Honduras, le 21 mars
2002;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, 4 La Haye, le vingt et un mars deux mille, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République du Nica-
ragua et au Gouvernement de la République du Honduras.

Le président,
(Signé) Gilbert GUILLAUME.

Le greffier,
(Signé) Philippe COUVREUR.