64

DISSENTING OPINION OF PRESIDENT SCHWEBEL

I regret that J am unable to agree with the Judgment of the Court. It is
arguable that the challenge of the Respondent to the jurisdiction of the
Court should not carry. But the reasons so tersely stated by the Court are
conclusory rather than elucidatory, and, at most, are barely persuasive in
a subsidiary respect. In my view, the Court’s conclusions on the admis-
sibility of Libya’s Application, and as to whether it has become moot, are
unpersuasive.

JURISDICTION

- The question of whether the Court has jurisdiction over a dispute
between the Parties under the Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation depends on the
resolution of antecedent questions. Does the Montreal Convention apply
to the facts at issue in the current case? If it does, do the positions of the
Parties in this case give rise to a dispute under the Convention?

The Preamble to the Convention declares its purpose to be that of
“deterring” unlawful acts against the safety of civil aviation and provid-
ing appropriate measures for punishment of offenders. Article 10 pro-
vides that contracting States shall “endeavour to take all practicable
measure for the purpose of preventing the offences mentioned in Ar-
ticle 1”. Article 12 provides that any contracting State having reason to
believe one of the offences mentioned in Article 1 will be committed shall
furnish relevant information to other States concerned. These provisions
may be interpreted to imply that the Convention does not apply to alle-
gations against persons accused of destroying an aircraft who are claimed,
as in the instant case, to be acting as agents of a contracting State. Or, if
that implication is too extended, those provisions of the Montreal Con-
vention suggest that the Convention would hardly have deterrent effect if
the State accused of having directed the sabotage were the only State
competent to prosecute the persons accused of the act. At the same time,
Article 1 of the Convention capaciously provides that, “Any person”
commits an offence under the Convention if he performs an act there-
after listed. Moreover, Libya has not accepted that the accused were
agents of its Government.

If it be assumed that the Convention does apply to persons allegedly
State agents who are accused of destroying an aircraft, the question then

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arises whether there is a dispute between Libya and the Respondent
under the Convention.

It is difficult to show, and in its Judgment the Court in my view does
not show (as contrasted with concluding), that the Respondent can be in
violation of provisions of the Montreal Convention, with the possible
exception of Article 11; the Court does not show that there is a dispute
between the Parties over such alleged violations. The Convention in the
circumstances of the case imposes multiple obligations on Libya. None of
the articles of the Convention invoked by Libya in the circumstances of
this case imposes obligations on the Respondent (as demonstrated by
Sir Robert Jennings in his dissenting opinion). At most, it might be
maintained that there is a dispute over breach of an obligation under
Article 11, which provides in paragraph | that,

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

The Respondent, the State requested, has provided Libya with the indict-
ment, but, in reliance upon the resolutions of the Security Council and its
own law, has not, despite Libyan requests, done more. If in fact Libya
has brought criminal proceedings against the accused, there is arguable
ground for alleging the existence of a dispute under Article 11, though in
truth the dispute is over the force of the Security Council’s resolutions.

The Court principally relies, in upholding jurisdiction, on its unexpli-
cated conclusion that, in view of the positions of the Parties, there exists
between them a dispute regarding the interpretation and application of
Article 7. Article 7 provides:

“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 on 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.”

The Respondent has not disputed Libya’s obligation to prosecute the
accused under Article 7 if Libya does not extradite them. It rather main-
tains that Libya is obliged by the supervening resolutions of the Security
Council to surrender the accused for trial in the United States or the
United Kingdom. Libya challenges this reading of the resolutions of the
Security Council and contends that, if it is the right reading, the resolu-
tions of the Security Council are unlawful and ultra vires. That is to say,
there is no dispute between the Parties in this regard under Article 7 of
the Montreal Convention. There is a dispute over the meaning, legality

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and effectiveness of the pertinent resolutions of the Security Council. The
latter dispute may not be equated with the former. Consequently it does
not fall within the jurisdiction of the Court under Article 14 of the Mon-
treal Convention, which confines the Court’s jurisdiction to “Any dispute
between two or more Contracting States concerning the interpretation or
application of this Convention . . .”. Libya’s complaint that the Security
Council has acted unlawfully can hardly be a claim under the Montreal
Convention falling within the jurisdiction of the Court pursuant to that
Convention.

The Court holds that there is a further, overarching dispute between
the Parties, because

“the Parties differ on the question whether the destruction of the
Pan Am aircraft over Lockerbie is governed by the Montreal Con-
vention. 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.” (Judgment, para. 25.)

That holding is not without formal force. But, as in this case, it lends
itself to undue extension of the jurisdiction of the Court. If two States are
parties to a treaty affording jurisdiction to the Court in disputes over its
interpretation or application, is there a dispute under the treaty merely
because one party so maintains — or maintains that the treaty constitutes
the governing legal régime — while the other denies it?

It is in any event obvious that the Montreal Convention cannot afford
the Court jurisdiction over Libya’s submission that the Respondent

“is under a legal obligation to respect Libya’s right not to have the
Convention set aside by means which would in any case be at vari-
ance 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, sov-
ereign equality and political independence of States” (Memorial of
Libya, Submissions, p. 242, para. 8.1 (d)).

Disputes under the Montreal Convention do not import those arising
under the Charter and customary international law. Yet the Court’s
holding on this submission is equivocal. While it states that it cannot
uphold the Respondent’s objection, at the same time it confines the
Court’s jurisdiction to actions alleged to be at variance with the provi-
sions of the Montreal Convention.

Finally, in respect of jurisdiction, the Court observes that Security

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Council resolutions 748 (1992) and 883 (1993) were adopted after the
filing of Libya’s Application on 3 March 1992. It holds that, in accord-
ance with its established jurisprudence, if the Court had jurisdiction on that
date, it continues to do so; subsequent adoption of the Security Council’s
resolutions cannot affect its jurisdiction once established. That holding
by its terms does not resolve whether, on 3 March 1992, the Court had
jurisdiction. For the reasons set out above, the conclusion that it did is
dubious.

Moreover, the cases on which the Court relies in so holding hardly
seem to apply to the instant situation. The question at issue in the rele-
vant phase of the Nottebohm case was whether, where jurisdiction had
been established at the date of the application by Declarations under the
Optional Clause, it could be disestablished by subsequent lapse of a Dec-
laration by expiry or denunciation. Inevitably the Court held that it
could not. In the case concerning Right of Passage over Indian Territory,
the Court concordantly held that,

“Tt is a rule of law generally accepted, as well as one acted upon in
the past by the Court, that, once the Court has been validly seised of
a dispute, unilateral action by the respondent State in terminating its
Declaration . . . cannot divest the Court of jurisdiction.” (Right of
Passage over Indian Territory, Preliminary Objections, Judgment,
I. C.J. Reports 1957, p. 142.)

Nothing of the kind at issue in either of those cases is pertinent to the
instant case. There is no question of the Respondent unilaterally taking
action that purports to denounce the Montreal Convention or to excise
Article 14 thereof. Rather the Security Council has taken multilateral
action in pursuance of its Charter powers by adopting resolution 748
(1992) which, as the Court held at the provisional measures stage of this
case, both Libya and the Respondent, “as Members of the United
Nations, are obliged to accept and carry out . . . in accordance with
Article 25 of the Charter” (LC.J. Reports 1992, p. 15). The Court
then held that, “in accordance with Article 103 of the Charter, the obli-
gations of the Parties in that respect prevail over their obligations under
any other international agreement, including the Montreal Convention”
(ibid. ). That is no less true in 1998 than it was in 1992.

In its Judgment on jurisdiction and admissibility of 11 July 1996 in
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, the Court held that, “It is the case that the jurisdic-
tion of the Court must normally be assessed on the date of the filing of
the act instituting proceedings.” ULC. J. Reports 1996, p. 613, para. 26.)
This most recent holding on the question imports that what is normal is
not invariable; there is room for special treatment of the abnormal. The
instant case, in which the Applicant challenges the legality and applica-

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bility to it of resolutions of the Security Council adopted to deal with
what the Council held to be a threat to international peace, surely is one
to be treated in the exceptional way to which the Court opened the door
in 1996.

ADMISSIBILITY AND MOOTNESS

The Respondent objects to the admissibility of Libya’s claims in reli-
ance upon Security Council resolutions 748 (1992) and 883 (1993), which,
having been adopted under Chapter VII of the Charter, are binding and
govern the Montreal Convention by virtue of Article 103 of the Charter.
It maintained that the Court is not empowered to overturn the decisions
of the Security Council and certainly is not authorized to overturn the
Council’s determination under Chapter VII of the existence of a threat to
the peace and its choice of measures to deal with the threat. Libya,
among other arguments, invoked the Court’s holding in Border and
Transborder Armed Actions that, “The critical date for determining the
admissibility of an application is the date on which it is filed (cf. South
West Africa, Preliminary Objections, I CJ. Reports 1962, p. 344)”
(Border and Transborder Armed Actions (Nicaragua v. Honduras), Juris-
diction and Admissibility, I. C.J. Reports 1988, p. 95).

In its Judgment, the Court upholds this submission of Libya, declaring
that,

“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)
cannot be taken into consideration in this regard since they were
adopted at a later date.” (Para. 44.)

It is solely on this ground that the Court dismisses the Respondent’s
objection to the admissibility of the Application. It is solely on this
ground that the Court finds it right, at this stage of the proceedings, to
put aside resolutions of the Security Council adopted to deal with what
the Council has found to be acts of international terrorism that constitute
threats to international peace and security. (“Acts”, rather than the atro-
cious act of destroying the aircraft of Pan American flight 103, not only
because Libyan agents are alleged by French authorities to have destroyed
Union de transports aériens flight 772 on 19 September 1989, another
atrocity addressed by the Security Council in resolutions 731 (1992), 748
(1992) and 883 (1993). That allegation has led French juge d’instruction
Jean-Louis Bruguière, after extensive investigation completed on 29 Janu-
ary 1998, to call for trial of six alleged Libyan secret service or former
secret service agents, including a brother-in-law of Colonel Qaddafi (a
trial which, under French law, can take place in absentia) (Le Monde,
31 January 1998, p. 11). The Security Council also has chosen to act

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under Chapter VII of the Charter in view of its broader determination in
resolution 748 (1992) “that the failure by the Libyan Government to
demonstrate by concrete actions its renunciation of terrorism and in par-
ticular its continued failure to respond fully and effectively to the requests
in resolution 731 (1992) constitute a threat to international peace and
security”.)

In my view, the holding of the Court is, on the facts of this case, even
less persuasive in respect of admissibility than it is in respect of jurisdic-
tion. It may be recalled that, in customary international law, the admis-
sibility of a claim espoused by a State, under the rule of nationality of
claims, is determined not as of the date of filing but as of the date of
judgment. It may also be observed that the whole basis on which the
Court in 1992 proceeded in approving its Order rejecting the provisional
measures sought by Libya was that of the applicability, as of the date of
its Order, of Security Council resolution 748 (1992), adopted after the
date of the filing of Libya’s Application and Libya’s request for the indi-
cation of provisional measures.

There is little in the legal literature on the question of whether, in the
jurisprudence of the Court, admissibility must be assessed as of the date
of application, perhaps because the quoted holding of the Court in the
case concerning Border and Transborder Armed Actions { Nicaragua v.
Honduras) is the only such general holding of the Court. In the latest
edition of his magisterial work, Shabtai Rosenne writes that the date of
the filing of the act instituting the proceedings is the date “by reference to
which the existence of the dispute and the admissibility of the case are
normally determined . . .” (The Law and Practice of the International
Court, 1920-1996, Vol. II, pp. 521-522). That appraisal leaves room for
not necessarily determining admissibility as of the date of the application.

The Court’s holding in the Border and Transborder Armed Actions
case referred to its prior holding in the South West Africa cases. In those
cases, as well as in Border and Transborder Armed Actions, the issue was
not generally whether admissibility of an application is determined as of
- the date of the application but specifically whether an alleged impossibil-
ity of settling the dispute by negotiation could only refer to the time when
the applications were filed. (South West Africa, Preliminary Objections,
LCJ. Reports 1962, p. 344; Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
LC J. Reports 1988, p. 95. See also to similar effect, Right of Passage
over Indian Territory, Preliminary Objections, Judgment, IL C.J. Reports
1957, p. 148.) The utility of determining that question as of the date of
the filing of the application is clear. But whether it follows that, generally
and in all cases, the admissibility of an application is to be determined as
of the date of its filing, is not so clear. It may indeed be asked whether the
Court’s apparently general holding in Border and Transborder Armed

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Actions is meant to have the comprehensive force which the Court
assigns to it in this case, in view of the restricted concern of the Court in
that and the other cases cited.

Moreover, the following lines of that Judgment significantly qualify
the sweep of the first sentence of the paragraph. It is instructive to quote
the first sentence in the context of the following sentences:

“The critical date for determining the admissibility of an applica-
tion is the date on which it is filed (cf. South West Africa, Prelimi-
nary Objections, I. C.J. Reports 1962, p. 344). It may however be
necessary, in order to determine with certainty what the situation
was at the date of filing of the Application, to examine the events,
and in particular the relations between the Parties, over a period
prior to that date, and indeed during the subsequent period.
Furthermore, subsequent events may render an application
without object, or even take such‘a course as to preclude the filing
of a later application in similar terms.” (C.J. Reports 1988, p. 95,
para. 66.)

In the case before the Court, it is precisely such “subsequent events”,
namely adoption by the Security Council of resolutions 748 (1992) and
883 (1993), that render Libya’s Application “without object”, that is to
say, moot. Accordingly any judgment by the Court could have no lawful
effect on the rights and obligations of the Parties in light of the Council’s
binding decisions and would thus not be within the proper judicial func-
tion of the Court.

In the case concerning Northern Cameroons, the Court declared:

“The function of the Court is to state the law, but it may pro-
nounce judgment only in connection with concrete cases where there
exists at the time of the adjudication an actual controversy involving
a conflict of legal interests between the parties. The Court’s judg-
ment must have some practical consequence in the sense that it can
affect existing legal rights or obligations of the parties, thus remov-
ing uncertainty from their legal relations. No judgment on the merits
in this case could satisfy these essentials of the judicial function.”
(Northern Cameroons, Preliminary Objections, Judgment, I CJ.
Reports 1963, pp. 33-34.)

The Court concluded:

“The Court must discharge the duty to which it has already called
attention — the duty to safeguard the judicial function. Whether or
not at the moment the Application was filed there was jurisdiction in
the Court to adjudicate upon the dispute submitted to it, circum-
stances that have since arisen render any adjudication devoid of pur-

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pose. Under these conditions, for the Court to proceed further in the
case would not, in its opinion, be a proper discharge of its duties.”
(C.J. Reports 1963, p. 38.)

In the two cases on Nuclear Tests, the Court held:

“The Court, as a court of law, is called upon to resolve existing
disputes between States. Thus the existence of a dispute is the pri-
mary condition for the Court to exercise its judicial function; it is
not sufficient for one party to assert that there is a dispute, since
‘whether there exists an international dispute is a matter for objec-
tive determination’ by the Court . . . The dispute brought before it
must therefore continue to exist at the time when the Court makes
its decision. It must not fail to take cognizance of a situation in
which the dispute has disappeared . . . all the necessary consequences
must be drawn from this finding.

Thus the Court concludes that, the dispute having disappeared,
the claim advanced . . . no longer has any object. It follows that any
further finding would have no raison d'être.

The Court therefore sees no reason to allow the continuance of
proceedings which it knows are bound to be fruitless.

The object of the claim having clearly disappeared, there is
nothing on which to give judgment.” (Nuclear Tests (Australia
v. France), I C.J. Reports 1974, pp. 270-272, paras. 55-56, 58-59.

See also Nuclear Tests (New Zealand v. France), I.C.J. Reports
1974, pp. 476-477, paras. 58-59, 61-62.)

It follows that, in the case now before the Court, the Court should
have held Libya’s claims to be inadmissible, or at any rate moot, on the
ground that the issues between it and the Respondent have been deter-
mined by decisions of the Security Council which bind the Parties and
which, pursuant to Article 103 of the Charter, prevail over any rights and
obligations that Libya and the Respondent have under the Montreal
Convention. If the Court had done so, it would have removed a pro-
longed challenge to the exercise by the Security Council of its Charter
responsibilities and presumably promoted Libya’s compliance with its
obligations, under Article 25 of the Charter, “to accept and carry out the
decisions of the Security Council in accordance with the present Charter”.

AN EXCLUSIVELY PRELIMINARY CHARACTER

However, the Court’s Judgment holds that it may not so determine at
this stage of the proceedings because of the terms of Article 79 of the

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Rules of Court. That article provides that its judgment on preliminary
objections, whether they be to the jurisdiction or to the admissibility of
the application, “or other objection the decision upon which is requested
before any further proceedings on the merits”, shall either uphold the
objection, reject it, “or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary character”. The
Court concludes that the objection that Libya’s claims are without object
constitutes in many respects the very subject-matter of any judgment on
the merits and, hence, since it does not possess an exclusively preliminary
character, must be remitted to the stage of the merits.

In my view, the Court’s conclusion in this regard is substantial and,
unlike some of its other conclusions, draws support from the reasoning
and authority set out in the Judgment. But is the Court’s conclusion,
however plausible, compelling?

I do not find it so for these reasons. The Court takes an absolute view
of an admittedly absolute term, “exclusively”. It holds that the Respon-
dent’s objections are not exclusively preliminary in character. But it will
be the rare preliminary objection that actually is exclusively preliminary
in character. This will especially be so if the wide construction given by
the Court in the current case to the meaning of “exclusively” is followed
in future cases. The fact that a preliminary objection, if upheld, will dis-
pose of the merits of the case in the sense of preventing a hearing of them
proves nothing; all preliminary objections, if sustained, have this effect.
More than this, Article 79 qualifies the conclusion that the objection does
not possess an exclusively preliminary character by specifying that it
“does not possess, in the circumstances of the case, an exclusively pre-
liminary character”. In the circumstances of this case, concerned as it is
or should be with jurisdiction under the Montreal Convention — and
there is no other ground for jurisdiction — a plea that the case should not
proceed to a consideration of the merits of rights and obligations under
the Montreal Convention because resolutions of the Security Council
render such consideration without object must be treated as a plea of an
exclusively preliminary character.

It may be added that, in the circumstances of this case, the Parties have
extensively argued elements of the case which the Court now remits to
the merits as part of the very subject-matter of the merits (as indeed the
Parties did at the stage of provisional measures). Presumably they did so
by dint of construction of paragraph 6 of Article 79 of the Rules, which
provides that,

“In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary,
may request the parties to argue all questions of law and fact, and to
adduce all evidence, which bear on the issue.”

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They may also have had regard to the first paragraph of Article 79, which
speaks of any other objection the decision upon which is requested before
any “further” proceedings on the merits. The Court made no effort to
limit the arguments of the Parties embracing elements of what it now
treats as the merits. I do not think that the Court need now require, as it
does require, the Parties to argue these elements once more — actually,
for a third time — before it passes upon them and disposes of these
objections. To have done so at this stage the Court needed neither the
resolution of disputed facts nor the consideration of further evidence. To
have ruled on the question of whether the resolutions of the Security
Council render Libya’s invocation of the Montreal Convention moot
would not have entailed adjudicating the merits of the case in so far as it
relates to what may be within the jurisdiction of the Court under the
Montreal Convention. Important questions which may arise on the mer-
its would in any event remain unaddressed, such as the propriety of the
trial of the suspects in the United States or in the United Kingdom.

The Court’s decision in effect to join the preliminary objections to the
merits, a decision based essentially upon its literal construction of a word
of a Rule of Court, does not appear consistent with the design of the
Court in amending the Rules of Court in 1972. It has regrettable if un-
intended results, the least of which is requiring the Parties to argue, and
the Court to hear, arguments on those objections, or some of those objec-
tions, for a third time. It will prolong a challenge to the integrity and
authority of the Security Council. It may be taken as providing excuse for
continued defiance of the Council’s binding resolutions. It may be seen as
prejudicing an important contemporary aspect of the Council’s efforts to
maintain international peace and security by combatting State-sponsored
international terrorism. Justice for the victims of an appalling atrocity
may be further delayed and: denied. The Court may have opened itself,
not only in this but in future cases, to appearing to offer to recalcitrant
States a means to parry and frustrate decisions of the Security Council by
way of appeal to the Court.

JUDICIAL REVIEW

That last spectre raises the question of whether the Court is em-
powered to exercise judicial review of the decisions of the Security Council,
a question as to which I think it right to express my current views. The
Court is not generally so empowered, and it is particularly without power
to overrule or undercut decisions of the Security Council made by it in
pursuance of its authority under Articles 39, 41 and 42 of the Charter to
determine the existence of any threat to the peace, breach of the peace, or

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act of aggression and to decide upon responsive measures to be taken to
maintain or restore international peace and security.

The Court more than once has disclaimed possessing a power of judi-
cial review. In its Advisory Opinion in the case concerning Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Char-
ter), the Court declared:

“In the legal systems of States, there is often some procedure for
determining the validity of even a legislative or governmental act,
but no analogous procedure is to be found in the structure of the
United Nations. Proposals made during the drafting of the Charter
to place the ultimate authority to interpret the Charter in the Inter-
national Court of Justice were not accepted; the opinion which the
Court is in course of rendering is an advisory opinion. As anticipated
in 1945, therefore, each organ must, in the first place at least, deter-
mine its own jurisdiction. If the Security Council, for example,
adopts a resolution purportedly for the maintenance of international
peace and security and if, in accordance with a mandate or authori-
zation in such resolution, the Secretary-General incurs financial obli-
gations, these amounts must be presumed to constitute ‘expenses of
the Organization’.” (LC. J. Reports 1962, p. 168.)

In its Advisory Opinion on Legal Consequences for States of the Con-
tinued Presence of South Africa in Namibia (South West Africa) not-
withstanding Security Council Resolution 276 (1970), the Court reiter-
ated that: “Undoubtedly, the Court does not possess powers of judicial
review or appeal in respect of the decisions taken by the United Nations
organs concerned.” (7 C.J. Reports 1971, p. 45.)

It should be noted that the Court made these holdings in advisory pro-
ceedings, in which the Security Council and the General Assembly are
entitled to request the Court’s opinion “on any legal question”. The
authority of the Court to respond to such questions, and, in the course of
so doing, to pass upon relevant resolutions of the Security Council and
General Assembly, is not disputed. Nevertheless, if the Court could hold
as it did in advisory proceedings, a fortiori in contentious proceedings the
Court can hardly be entitled to invent, assert and apply powers of judicial
review.

While the Court so far has not had occasion in contentious proceed-
ings to pass upon an alleged authority to judicially review decisions of the
Security Council, it may be recalled that in Military and Paramilitary
Activities in and against Nicaragua the Court observed that:

“The Court is not asked to say that the Security Council was wrong
in its decision, nor that there was anything inconsistent with law in the
way in which the members of the Council employed their right to vote.

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The Court is asked to pass judgment on certain legal aspects of a situa-
tion which has also been considered by the Security Council, a pro-
cedure which is entirely consonant with its position as the principal judi-
cial organ of the United Nations.” (Military and Paramilitary Activi-
ties in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 436.)

The implication of this statement is that, if the Court had been asked by
the Applicant to say that the Security Council had been wrong in its deci-
sion, the Court would have reached another conclusion.

The texts of the Charter of the United Nations and of the Statute of
the Court furnish no shred of support for a conclusion that the Court
possesses a power of judicial review in general, or a power to supervene
the decisions of the Security Council in particular. On the contrary, by
the absence of any such provision, and by according the Security Council
“primary responsibility for the maintenance of international peace and
security”, the Charter and the Statute import the contrary. So extraordi-
nary a power as that of judicial review is not ordinarily to be implied and
never has been on the international plane. If the Court were to generate
such a power, the Security Council would no longer be primary in its
assigned responsibilities, because if the Court could overrule, negate,
modify — or, as in this case, hold as proposed that decisions of the Secu-
rity Council are not “opposable” to the principal object State of those
decisions and to the object of its sanctions — it would be the Court and
not the Council that would exercise, or purport to exercise, the disposi-
tive and hence primary authority.

The drafters of the Charter above all resolved to accord the Security
Council alone extraordinary powers. They did so in order to further
realization of the first Purpose of the United Nations,

“To maintain international peace and security, and to that end: to
take effective collective measures for the prevention and removal of
threats to the peace, and for the suppression of acts of aggression or
other breaches of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.”

Article 24 thus provides:

“1. In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary respon-
sibility for the maintenance of international peace and security, and
agree that in carrying out its duties under this responsibility the
Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in
accordance with the Purposes and Principles of the United
Nations . . .”

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Article 25 provides that: “The Members of the United Nations agree
to accept and carry out the decisions of the Security Council in accord-
ance with the present Charter.”

These provisions — the very heart of the Charter’s design for the main-
tenance of international peace — manifest the plenitude of the powers of
the Security Council, which are elaborated by the provisions of Chapters
VI, VII, and VIT of the Charter. They also demonstrate that the Security
Council is subject to the rule of law; it shall act in accordance with the
Purposes and Principles of the United Nations and its decisions must be
adopted in accordance with the Charter. At the same time, as Article 103
imports, it may lawfully decide upon measures which may in the interests
of the maintenance or restoration of international peace and security
derogate from the rights of a State under international law. The first Pur-
pose of the United Nations quoted above also so indicates, for the refer-
ence to the principles of justice and international law designedly relates
only to adjustment or settlement by peaceful means, and not to the tak-
ing of effective collective measures for the prevention and removal of
threats to and breaches of the peace. It was deliberately so provided to
ensure that the vital duty of preventing and removing threats to and
breaches of the peace would not be limited by existing law. (See the
Report on the Preamble, Purposes and Principles, United Nations Con-
ference on International Organization (UNCIO), Vol. 6, pp. 453-454,
and the observations of Lord Halifax, p. 25.)

It does not follow from the facts that the decisions of the Security
Council must be in accordance with the Charter and that the Interna-
tional Court of Justice is the principal judicial organ of the United
Nations, that the Court is empowered to ensure that the Council’s deci-
sions do accord with the Charter. To hold that it does so follow is a
monumental non sequitur, which overlooks the truth that, in many legal
systems, national and international, the subjection of the acts of an organ
to law by no means entails subjection of the legality of its actions to judi-
cial review. In many cases, the system relies not upon judicial review but
on self-censorship by the organ concerned or by its members or on review
by another political organ.

Judicial review could have been provided for at San Francisco, in full or
lesser measure, directly or indirectly, but both directly and indirectly it was
not in any measure contemplated or enacted. Not only was the Court not
authorized to be the ultimate interpreter of the Charter, as the Court acknow-
ledged in the case concerning Certain Expenses of the United Nations. Pro-
posals which in restricted measure would have accorded the Court a degree
of authority, by way of advisory proceedings, to pass upon the legality of
proposed resolutions of the Security Council in the sphere of peaceful settle-
ment — what came to be Chapter VI of the Charter — were not accepted.
What was never proposed, considered, or, so far as the records reveal, even
imagined, was that the International Court of Justice would be entrusted
with, or would develop, a power of judicial review at large, or a power to

71
77 1971 MONTREAL CONVENTION (DISS. OP. SCHWEBEL)

supervene, modify, negate or confine the applicability of resolutions of the
Security Council whether directly or in the guise of interpretation.

That this is understandable, indeed obvious, is the clearer in the light of
the conjunction of political circumstances at the time that the Charter was
conceived, drafted and adopted. The Charter was largely a concept and
draft of the United States, and secondarily of the United Kingdom; the
other most influential State concerned was the USSR. The United States
was cautious about the endowments of the Court. Recalling the rejection
by the Senate of the United States a decade earlier of adherence to the
Statute of the Permanent Court of International Justice, the Department
of State was concerned to assure that nothing in the Charter concerning
the Court, and nothing in the Statute which was to be an integral part of
the Charter, could prejudice the giving of advice and consent by the Senate
to the ratification of the Charter. Thus the Report of the Senate Commit-
tee on Foreign Relations on the United Nations Charter of 16 July 1945 to
the Senate recommending ratification of the Charter specified:

“The Charter does not permit the Security Council or the General
Assembly to force states to bring cases to the Court, nor does it or
the Statute permit the Court to interfere with the functions of the
Security Council or the General Assembly . . . Your committee rec-
ommends that the Senate accept the International Court of Justice in
the form and with the authority set forth in chapter XIV of the
Charter and the annexed Statute of the Court.” (United States Sen-
ate, 79th Congress, Ist session, Executive Report No. 8, “The Char-
ter of the United Nations”, republished in United States Senate,
83rd Congress, 2nd session, Document No. 87, “Review of the
United Nations Charter: A Collection of Documents”, 1954, p. 67.)

The British Government which, together with the United States, was
the principal proponent of the creation of the Permanent Court of Inter-
national Justice and which had played a large and constructive part in
respect of that Court, was hardly less cautious.in its approach to the
powers of the International Court of Justice, as is illustrated by a quota-
tion from the proceedings of the San Francisco Conference set out below.

As for the Government of the Union of Soviet Socialist Republics — a
Government which had been ideologically hostile to the Court since its
creation (as a reading of the Eastern Carelia case so vividly illustrates) —
can it be thought that Stalin, whose preoccupation in the days of San
Francisco was giving the veto power the widest possible reach, could
have assented to the establishment of a Court authorized to possess or
develop the authority to review and vary the application of resolutions
adopted by the Security Council under Chapter VII of the Charter?

At San Francisco, Belgium proposed the following amendment:

“Any State, party to a dispute brought before the Security Coun-
cil, shall have the right to ask the Permanent Court of International

72
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78 1971 MONTREAL CONVENTION (DISS. OP. SCHWEBEL)

Justice whether a recommendation or a decision made by the Coun-
cil or proposed in it infringes on its essential rights. If the Court con-
siders that such rights have been disregarded or are threatened, it is
for the Council either to reconsider the question or to refer the dis-
pute to the Assembly for decision.” (UNCIO, Vol. 3, p. 336.)

The purpose of the amendment, the Belgian delegate explained, was to
allow the State concerned to seek an advisory opinion from the Court if
that State believed that a Security Council recommendation infringed
upon its essential rights. It was not in any sense the purpose of the
amendment to limit the legitimate powers of the Security Council (ibid.,
Vol. 12, pp. 48-49).

The Belgian proposal gave rise to a mixed reaction, support from
States such as Ecuador and Colombia, and opposition from Great Power
Sponsors of the Conference. The delegate of the Soviet Union

“considered that the Belgian Amendment would have the effect of
weakening the authority of the Council to maintain international
peace and security. If it were possible for a state to appeal from the
Council to the International Court of Justice . . . the Council would
find itself handicapped in carrying out its functions. In such circum-
stances, the Council might even be placed in a position of being a
defendant before the Court.” Ubid., Vol. 12, p. 49.)

The delegate of the United States explained the importance of the
requirement that the action of the Security Council in dealing with a dis-
pute involving a threat to the peace be taken “in accordance with the pur-
poses and principles of the Organization”. One of the purposes is to bring
about peaceful settlement of disputes “with due regard for principles of
justice and international law”. He did not interpret the Proposals as pre-
venting any State from appealing to the International Court of Justice at
any time on any matter which might properly go before the Court. On
the whole, he did not consider the acceptance of the Belgian Amendment
advisable, particularly since he believed that “the Security Council was
bound to act in accordance with the principles of justice and interna-
tional law” (ibid.). (It should be noted that this statement of 17 May
1945 antedated revision of the draft of the Charter’s Purposes and Prin-
ciples in June to provide that “the principles of justice and international
law” relate only to the adjustment or settlement of international disputes
by peaceful means and not to measures of collective security.)

The delegate of France declared that, while he viewed with great
sympathy the ideas in the Belgian Amendment, he was doubtful that
“it would be effective in obtaining its desired end, especially since it

73
79 1971 MONTREAL CONVENTION (DISS. OP. SCHWEBEL)

involved a dispersal of responsibilities in the Organization” (UNCIO,
Vol. 12, p. 50).

The delegate of the United Kingdom stated that the adoption of the
Belgian Amendment “would be prejudicial to the success of the Organi-
zation”. The amendment would

“result in the decision by the Court . . . of political questions in addi-
tion to legal questions. The performance of this function by the
Court ... would seriously impair the success of its role as a judicial
body. Further, the procedures proposed by the amendment would
cause delay, at a time when prompt action by the Security Council
was most desirable. A powerful weapon would thus be placed in the
hands of a state contemplating aggression, and the Council would
not be able to play the part in maintaining peace which was intended
for it... he considered it necessary that the Council possess the trust
and confidence of all states; its majority would be composed of small
states, and it would be obligated to act in a manner consistent with
the purposes and principles of the Organization.” (Ibid, p. 65.)

After a few other statements in this vein, the delegate of Belgium stated
that, since it was now clearly understood that a recommendation under
what was to become Chapter VI did not possess obligatory effect, he
wished to withdraw his amendment (ibid., p. 66).

Subsequently, the Conference rejected a proposal by Belgium to refer
disagreements between organs of the United Nations on interpretation of
the Charter to the Court. The pertinent report concludes:

“Under unitary forms of national government the final determina-
tion of such a question may be vested in the highest court or in some
other national authority. However, the nature of the Organization
and of its operation would not seem to be such as to invite the inclu-
sion in the Charter of any provision of this nature. If two member
states are at variance concerning the correct interpretation of the
Charter, they are of course free to submit the dispute to the Inter-
national Court of Justice as in the case of any other treaty. Similarly,
it would also. be open to the General Assembly or to the Security
Council, in appropriate circumstances, to ask the International Court
of Justice for an advisory opinion concerning the meaning of a pro-

_ vision of the Charter.” (Ibid., Vol. 13, pp. 668-669.)

It may finally be recalled that, at San Francisco, it was resolved “to
leave to the Council the entire decision, and also the entire responsibility
for that decision, as to what constitutes a threat to peace, a breach of the
peace, or an act of aggression” (ibid., Vol. 11, p. 17).

74
80 1971 MONTREAL CONVENTION (DISS. OP. SCHWEBEL)

The conclusions to which the travaux préparatoires and text of the
Charter lead are that the Court was not and was not meant to be invested
with a power of judicial review of the legality or effects of decisions of the
Security Council. Only the Security Council can determine what is a
threat to or breach of the peace or act of aggression under Article 39, and
under Article 39 only it can “decide what measures shall be taken . . . to
maintain or restore international peace and security”. Two States at vari-
ance in the interpretation of the Charter may submit a dispute to the
Court, but that facility does not empower the Court to set aside or
second-guess the determinations of the Security Council under Article 39.
Contentious cases may come before the Court that call for its passing
upon questions of law raised by Council decisions and for interpreting
pertinent Council resolutions. But that power cannot be equated with an
authority to review and confute the decisions of the Security Council.

It may of course be maintained that the Charter is a living instrument;
that the present-day interpreters of the Charter are not bound by the
intentions of its drafters of 50 years ago; that the Court has interpreted
the powers of the United Nations constructively in other respects, and
could take a constructive view of its own powers in respect of judicial
review or some variation of it. The difficulty with this approach is that
for the Court to engraft upon the Charter régime a power to review, and
revise the reach of, resolutions of the Security Council would not be evo-
lutionary but revolutionary. It would be not a development but a depar-
ture, and a great and grave departure. It would not be a development
even arguably derived from the terms or structure of the Charter and
Statute. It would not be a development arising out of customary interna-
tional law, which has no principle of or provision for judicial review. It
would not be a development drawn from the general principles of law.
Judicial review, in varying forms, is found in a number of democratic
polities, most famously that of the United States, where it was developed
by the Supreme Court itself. But it is by no means a universal or even
general principle of government or law. It is hardly found outside the
democratic world and is not uniformly found in it. Where it exists inter-
nationally, as in the European Union, it is expressly provided for by
treaty in specific terms. The United Nations is far from being a govern-
ment, or an international organization comparable in its integration to
the European Union, and it is not democratic.

The conclusion that the Court cannot judicially review or revise the
resolutions of the Security Council is buttressed by the fact that only
States may be parties in cases before the Court. The Security Council
cannot be a party. For the Court to adjudge the legality of the Council’s

75
81 1971 MONTREAL CONVENTION (DISS. OP. SCHWEBEL)

decisions in a proceeding brought by one State against another would be
for the Court to adjudicate the Council’s rights without giving the Coun-
cil a hearing, which would run counter to fundamental judicial principles.
It would run counter as well to the jurisprudence of the Court. (Cf. East
Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 100-
105; Monetary Gold Removed from Rome in 1943, Judgment, I CJ.
Reports 1954, pp. 32-33.) Any such judgment could not bind the Council,
because, by the terms of Article 59 of the Statute, the decision of the
Court has no binding force except between the parties and in respect of
that particular case.

At the same time, a judgment of the Court which held resolutions of
the Security Council adopted under Chapter VII of the Charter not to
bind or to be “opposable” to a State, despite the terms of Article 25 of
the Charter, would seriously prejudice the effectiveness of the Council’s
resolutions and subvert the integrity of the Charter. Such a holding
would be tantamount to a judgment that the resolutions of the Security
Council were ultra vires, at any rate in relation to that State. That could
set the stage for an extraordinary confrontation between the Court and
the Security Council. It could give rise to the question, is a holding by the
Court that the Council has acted ultra vires a holding which of itself is
ultra vires?

For some 45 years, the world rightly criticized stalemate in the Security
Council. With the end of the Cold War, the Security Council has taken
great strides towards performing as it was empowered to perform. That
in turn has given rise to the complaint by some Members of the United
Nations that they lack influence over the Council’s decision-making.
However understandable that complaint may be, it cannot furnish the
Court with the legal authority to supervene the resolutions of the Secu-
rity Council. The argument that it does is a purely political argument; the
complaints that give rise to it should be addressed to and by the United
Nations in its consideration of the reform of the Security Council. It is
not an argument that can be heard in a court of law.

(Signed) Stephen M. SCHWEBEL.

76


                             COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                        APPLICATION DE LA CONVENTION
                     INTERNATIONALE POUR LA RÉPRESSION
                       DU FINANCEMENT DU TERRORISME
                    ET DE LA CONVENTION INTERNATIONALE
                   SUR L’ÉLIMINATION DE TOUTES LES FORMES
                          DE DISCRIMINATION RACIALE
                          (UKRAINE c. FÉDÉRATION DE RUSSIE)

                          ORDONNANCE DU 17 SEPTEMBRE 2018

                                    2018
                             INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                     APPLICATION OF THE INTERNATIONAL
                      CONVENTION FOR THE SUPPRESSION
                      OF THE FINANCING OF TERRORISM
                   AND OF THE INTERNATIONAL CONVENTION
                     ON THE ELIMINATION OF ALL FORMS
                         OF RACIAL DISCRIMINATION
                          (UKRAINE v. RUSSIAN FEDERATION)

                             ORDER OF 17 SEPTEMBER 2018

3 CIJ1149.indb 1                                              26/02/19 08:59

                                             Mode officiel de citation :
                          Application de la convention internationale pour la répression
                         du financement du terrorisme et de la convention internationale
                          sur l’élimination de toutes les formes de discrimination raciale
                      (Ukraine c. Fédération de Russie), ordonnance du 17 septembre 2018,
                                            C.I.J. Recueil 2018, p. 504

                                                Official citation:
                         Application of the International Convention for the Suppression
                        of the Financing of Terrorism and of the International Convention
                             on the Elimination of All Forms of Racial Discrimination
                         (Ukraine v. Russian Federation), Order of 17 September 2018,
                                            I.C.J. Reports 2018, p. 504

                                                                                1149
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157348-0

3 CIJ1149.indb 2                                                                             26/02/19 08:59

                                                  17 SEPTEMBRE 2018

                                                    ORDONNANCE

                        APPLICATION DE LA CONVENTION
                     INTERNATIONALE POUR LA RÉPRESSION
                       DU FINANCEMENT DU TERRORISME
                    ET DE LA CONVENTION INTERNATIONALE
                   SUR L’ÉLIMINATION DE TOUTES LES FORMES
                          DE DISCRIMINATION RACIALE
                      (UKRAINE c. FÉDÉRATION DE RUSSIE)

                     APPLICATION OF THE INTERNATIONAL
                      CONVENTION FOR THE SUPPRESSION
                      OF THE FINANCING OF TERRORISM
                   AND OF THE INTERNATIONAL CONVENTION
                     ON THE ELIMINATION OF ALL FORMS
                         OF RACIAL DISCRIMINATION
                      (UKRAINE v. RUSSIAN FEDERATION)

                                                 17 SEPTEMBER 2018

                                                        ORDER

3 CIJ1149.indb 3                                                      26/02/19 08:59

                    504

                                   COUR INTERNATIONALE DE JUSTICE

         2018
                                                   ANNÉE 2018
     17 septembre
     Rôle général                                17 septembre 2018
        no 166

                        APPLICATION DE LA CONVENTION
                     INTERNATIONALE POUR LA RÉPRESSION
                       DU FINANCEMENT DU TERRORISME
                    ET DE LA CONVENTION INTERNATIONALE
                   SUR L’ÉLIMINATION DE TOUTES LES FORMES
                          DE DISCRIMINATION RACIALE
                                   (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                                 ORDONNANCE

                        Le président de la Cour internationale de Justice,
                       Vu l’article 48 du Statut de la Cour et l’article 79, paragraphes 1 et 5,
                    de son Règlement,
                       Vu l’ordonnance du 12 mai 2017, par laquelle le président de la Cour a
                    fixé au 12 juin 2018 et au 12 juillet 2019 les dates d’expiration des délais
                    pour le dépôt, respectivement, d’un mémoire de l’Ukraine et d’un contre-
                    mémoire de la Fédération de Russie,
                       Vu le mémoire de l’Ukraine déposé dans le délai ainsi fixé ;

                       Considérant que, le 12 septembre 2018, la Fédération de Russie a sou-
                    levé certaines exceptions préliminaires à la compétence de la Cour et à la
                    recevabilité de la requête ;
                       Considérant qu’en conséquence, en vertu des dispositions du para-
                    graphe 5 de l’article 79 du Règlement, la procédure sur le fond est suspen-
                    due et qu’il échet de fixer un délai dans lequel la Partie adverse pourra
                    présenter un exposé écrit contenant ses observations et conclusions sur les
                    exceptions préliminaires ;

                    4

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                   505 	   application de la cirft et de la ciedr (ord. 17 IX 18)

                     Compte tenu de l’instruction de procédure V, aux termes de laquelle le
                   délai pour la présentation d’un tel exposé écrit ne devra en général pas
                   excéder quatre mois à compter de la date de présentation d’exceptions
                   préliminaires,
                      Fixe au 14 janvier 2019 la date d’expiration du délai dans lequel
                   l’Ukraine pourra présenter un exposé écrit contenant ses observations et
                   conclusions sur les exceptions préliminaires soulevées par la Fédération
                   de Russie ;
                       Réserve la suite de la procédure.

                      Fait en français et en anglais, le texte français faisant foi, au Palais de
                   la Paix, à La Haye, le dix-sept septembre deux mille dix-huit, en trois
                   exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
                   seront transmis respectivement au Gouvernement de l’Ukraine et au
                   Gouvernement de la Fédération de Russie.

                                                                        Le président,
                                                           (Signé) Abdulqawi Ahmed Yusuf.
                                                                          Le greffier,
                                                             (Signé) Philippe Couvreur.

                   5

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