General List No. 88

INTERNATIONAL COURT OF JUSTICE

27 February 1998

 

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE
(LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM)

 

PRELIMINARY OBJECTIONS

 

Objection to jurisdiction — Montreal Conventionof 23 September 1971 — Treaty in force between theParties — Article 14, paragraph 1, of the Convention.

Grounds for lack of jurisdiction invoked in the provisional measuresphase — Arguments not reiterated in the present phase of theproceedings — Necessity for the Court nonetheless to deal with thosearguments — Negotiations — Request forarbitration — Six-month period before the Court can be seised.

Contention that no legal dispute exists concerning the interpretationand application of the Montreal Convention — Dispute of a general nature asto the legal rÚgime applicable to the destruction of the Pan Am aircraft overLockerbie — Specific disputes concerning the interpretation and applicationof Article 7 of the Convention, read in conjunction with Articles 1, 5, 6 and 8,and the interpretation and application of Article 11 of the Convention.

Contention that it is not for the Court to decide on the lawfulness ofactions instituted by the Respondent to secure the surrender of the two allegedoffenders — Jurisdiction of the Court to decide on the lawfulness of thoseactions in so far as they would be at variance with the provisions of the MontrealConvention.

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

Objection to admissibility — Contention thatSecurity Council resolutions 748 (1992) and 883 (1993) created legal obligationsfor the Parties which are determinative of any dispute submitted to theCourt — Admissibility to be determined at the date of filing of theApplication — Adoption of the resolutions after the filing of theApplication.

Contention that those resolutions rendered the Applicant's claimswithout object — Objection to the Court proceeding to judgment on themerits — Article 79, paragraph 1, of the Rules ofCourt — "Preliminary" Objection — Formalconditions for presentation — Article 79, paragraph 7, of the Rules ofCourt — 1972 Revision — Objection which is "notexclusively" preliminary containing "both preliminary aspects and other aspectsrelating to the merits" — Rights on the merits constituting the verysubject-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 ODA, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KOROMA,VERESHCHETIN, PARRA-ARANGUREN, KOOIJMANS, REZEK;

Judges ad hoc Sir Robert JENNINGS, EL-KOSHERI; RegistrarVALENCIA-OSPINA.

 

In the case concerning questions of interpretation and application of the 1971 MontrealConvention 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 International Law, University of Oxford,
Mr. Jean Salmon, Professor of Law emeritus, UniversitÚ libre de Bruxelles,
Mr. Eric Suy, Professor of International Law, Catholic University of Louvain (K.U. Leuven),
Mr. Eric David, Professor of Law, UniversitÚ libre de Bruxelles,

as Counsel and Advocates;

 

Mr. Nicolas Angelet, Principal Assistant, Faculty of Law, Catholic University of Louvain (K.U. Leuven),
Mrs. Barbara Delcourt, Assistant, Faculty of Social, Political and Economic Sciences,

UniversitÚ libre de Bruxelles; Research Fellow, Centre of International Law and Institute of European Studies, UniversitÚ libre de Bruxelles,
Mr. Mohamed Awad,

as Advisers.

 

and

 

the United Kingdom of Great Britain and Northern Ireland,

represented by

Sir 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 Scotland,
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,

 

THE COURT,

composed as above,

after deliberation,

delivers the following Judgment:

 

1. On 3 March 1992, the Government of the Great Socialist People'sLibyan Arab Jamahiriya (hereinafter called "Libya") filed in the Registry of theCourt an Application instituting proceedings against the Government of the United Kingdomof Great Britain and Northern Ireland (hereinafter called "the United Kingdom")in respect of a "dispute between Libya and the United Kingdom concerning theinterpretation or application of the Montreal Convention" of23 September 1971 for the Suppression of Unlawful Acts against the Safety ofCivil Aviation (hereinafter called "the Montreal Convention"). The Applicationreferred to the destruction, on 21 December 1988, over Lockerbie (Scotland), ofthe aircraft on Pan Am flight 103, and to charges brought by the Lord Advocate forScotland in November 1991 against two Libyan nationals suspected of having caused abomb to be placed aboard the aircraft, which bomb had exploded causing the aeroplane tocrash. 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 bythe Registrar; pursuant to paragraph 3 of that Article, all States entitled to appearbefore the Court were notified of the Application.

3. Pursuant to Article 69, paragraph 3, of the Rules ofCourt, the Registrar addressed to the Secretary General of the International CivilAviation Organization the notification provided for in Article 34, paragraph 3,of the Statute.

Pursuant to Article 43 of the Rules of Court, the Registrar alsoaddressed the notification provided for in Article 63, paragraph 1, of theStatute to all those States which, on the basis of information obtained from thedepositary Governments, appeared to be parties to the Montreal Convention.

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

5. On 3 March 1992, immediately after the filing of itsApplication, Libya submitted a request for the indication of provisional measures underArticle 41 of the Statute.

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

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

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

7. Within the time-limit fixed for the filing of itsCounter-Memorial, the United Kingdom filed Preliminary Objections to the jurisdictionof 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 theproceedings on the merits were suspended, fixed 22 December 1995 as thetime-limit within which Libya might present a written statement of its observations andsubmissions on the Preliminary Objections.

Libya filed such a statement within the time-limit so fixed, and thecase 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 thewritten pleadings to the Secretary General of the International Civil AviationOrganization 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 theInternational Civil Aviation Organization informed the Court that the Organization"ha[d] no observations to make for the moment" but wished to remain informedabout the progress of the case, in order to be able to determine whether it would beappropriate to submit observations later.

9. By a letter dated 23 November 1995, the Registrarinformed the Parties that the Member of the Court having United Kingdom nationalityhad asked to be excused from taking part in the decision of the case, pursuant toArticle 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 ofthe Rules of Court, informed the Court of his Government's intention to chooseSir Robert Jennings to sit as judge ad hoc in the case. In accordancewith Article 35, paragraph 3, of the Rules of Court a copy of that letter wascommunicated by the Registrar to the Libyan Government, which was informed that7 April 1997 had been fixed as the time-limit within which Libya could make anyobservations it might wish to make. No observations from the Libyan Governmentreached the Court within the time-limit thus fixed.

Having regard to the proceedings instituted by Libya against the UnitedStates of America on 3 March 1992 in the case concerning Questions ofInterpretation and Application of the 1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v. United States ofAmerica), and to its composition in the present case in which a judge having UnitedStates nationality was sitting, in accordance with Article 31, paragraph 1, ofthe 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 than30 June 1997, any observations they wished to make in respect of the applicationof Article 31, paragraph 5, of the Statute. The

Registrar wrote to the three States on 30 May 1997 to thateffect. Each of the three Governments submitted observations within the prescribedtime-limit. After due deliberation, the Court, by ten votes to three, decided that in thepresent phase relating to jurisdiction and admissibility in the two cases, the UnitedKingdom and the United States of America were not parties in the same interest within themeaning of Article 31, paragraph 5, of the Statute; that the choice of ajudge ad hoc by the United Kingdom was therefore justified in the currentphase of the proceedings in the present case; and that accordinglySir Robert Jennings would sit on the Bench for the purpose of the oralproceedings and would take part in the deliberations by the Court in that phase of thecase. The Registrar notified that decision to Libya and to the United Kingdom, andinformed the United States of America of the decision, by letters dated16 September 1997.

10. The President of the Court, being a national of one of theParties to the case concerning Questions of Interpretation and Application of the 1971Montreal 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 inrespect of that case. Although that provision is not applicable in the present case, thePresident thought it appropriate that he should not exercise the functions of thepresidency in the present case as well. It therefore fell to the Vice-President, inaccordance with Article 13, paragraph 1, of the Rules of Court, to exercise thefunctions of the presidency in the case.

11. In accordance with Article 53, paragraph 2, of itsRules, the Court decided to make accessible to the public, on the opening of the oralproceedings, the Preliminary Objections of the United Kingdom and the written statementcontaining the observations and submissions of Libya on the Objections, as well as thedocuments annexed to those pleadings, with the exception of Annex 16 to thePreliminary Objections.

12. Public sittings were held between 13 and22 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, whoanswered 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 all violations of the sovereignty, territorial integrity, and the political independence of Libya."

14. In the written proceedings, the following submissions werepresented 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 jurisdiction 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 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 thePreliminary 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 werepresented 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:

(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."

*

* *

16. In the present case, the United Kingdom has raised twoobjections: one to the jurisdiction of the Court and the other to the admissibility of theApplication. According to the United Kingdom, "both of these are objections ofan essentially preliminary character".

*

* *

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

18. Libya submits that the Court has jurisdictionon the basis of Article 14, paragraph 1, of the Montreal Convention, which providesthat :

"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 from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court."

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

* *

20. The Respondent expressly stated that it did notwish to contest the jurisdiction of the Court on all of the same grounds it had reliedupon in the provisional measures phase of the proceedings, and restricted itself toalleging that Libya had failed to show, first, that there existed a legal dispute betweenthe Parties and second, that such dispute, if any, concerned the interpretation orapplication of the Montreal Convention and fell, as a result, within the terms ofArticle 14, paragraph 1, of that Convention. Consequently, theUnited Kingdom did not, in the present phase of the proceedings, reiterate itsearlier arguments as to whether or not the dispute that, in the opinion of Libya, existedbetween the Parties could be settled by negotiation; whether Libya had made a properrequest for arbitration; and whether the six-month period required by Article 14,paragraph 1, of the Convention had been complied with.

21. The Court nonetheless considers it necessaryto deal briefly with these arguments. It observes that in the present case the Respondenthas always maintained that the destruction of the Pan Am aircraft over Lockerbie didnot give rise to any dispute between the Parties regarding the interpretation orapplication of the Montreal Convention, and that, for that reason, in the Respondent'sview, there was nothing to be settled by negotiation under the Convention; the Court notesthat the arbitration proposal contained in the letter sent on 18 January 1992 bythe Libyan Secretary of the People's Committee for Foreign Liaison and InternationalCooperation to the Minister for Foreign Affairs of the United Kingdom met with noanswer; and it notes, in particular, that the Respondent clearly expressed its intentionnot to accept arbitration — in whatever form — whenpresenting and strongly supporting resolution 731 (1992) adopted by the SecurityCouncil three days later, on 21 January 1992.

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

* *

22. As recalled by the Parties, the Permanent Court ofInternational Justice stated in 1924 that "[a] dispute is a disagreement on a pointof law or fact, a conflict of legal views or of interests between two persons" (MavrommatisPalestine Concessions, 1924, P.C.I.J., Series A, No. 2, p. 11). The presentCourt for its part, in its Judgment of 30 June 1995 in the case concerning EastTimor (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, I.C.J. Reports 1962, p. 328; and further, 'Whether there exists an international dispute is a matter for objective determination' (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)." (I.C.J. Reports 1995, p. 100.)

*

23. In its Application and Memorial, Libya maintained that theMontreal Convention was the only instrument applicable to the destruction of thePan 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; consequently, 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 factsof the case could fall within the terms of the Montreal Convention. However, it emphasizesthat, in the present case, from the time Libya invoked the Montreal Convention, the UnitedKingdom 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 situationarising from Libya's failure to respond effectively to the most serious accusations ofState involvement in acts of terrorism".

25. Consequently, the Parties differ on thequestion whether the destruction of the Pan Am aircraft over Lockerbie is governed bythe Montreal Convention. A dispute thus exists between the Parties as to the legal rÚgimeapplicable to this event. Such a dispute, in the view of the Court, concerns theinterpretation and application of the Montreal Convention, and, in accordance withArticle 14, paragraph 1, of the Convention, falls to be decided by the Court.

*

26. Furthermore, in its Application and Memorial, Libya stressedthe following six points in particular in support of the submissions set forth,respectively, in paragraph 13 (subparagraphs (a) and (b)) andparagraph 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, paragraph 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;

(c) 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;

(d) 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, notifying 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;

(e) 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

(f) 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 permit their extradition.

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

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

"Article 1

1. Any person commits an offence if he unlawfully and intentionally:

(a) performs an act of violence against a person on board an aircraft 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 aircraft 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.

2. Any person also commits an offence if he:

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

(b) is an accomplice of a person who commits or attempts to commit any such offence."

 

Article 5 provides:

"Article 5

1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offences in the following 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 permanent residence, in that State.

2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned 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:

"Article 6

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 continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall 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 custody, it shall immediately notify the States mentioned in Article 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 warrant 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:

"Article 7

The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed 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:

"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 extraditable 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 extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Each of the offences shall be treated, for the purpose of extradition 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 theParties, the Court finds that there exists between them not only a dispute of a generalnature, as defined in paragraph 25 above, but also a specific dispute which concernsthe interpretation and application of Article 7 — read in conjunctionwith Article 1, Article 5, Article 6 and Article 8 — ofthe Montreal Convention and which, in accordance with Article 14, paragraph 1,of the Convention, falls to be decided by the Court.

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30. Furthermore, Libya maintained in its Application and Memorialthat, once it had commenced its judicial investigation of the two alleged offenders, theRespondent was, according to Article 11, paragraph 1, of the MontrealConvention, under an obligation to hand over to the Libyan authorities all the evidence inits possession regarding the offence. In Libya's opinion, this obligation was not dulycomplied with, because the United Kingdom only transmitted "a copy of thestatement of the facts" against the accused, a document that "contains noevidence of which the Libyan judiciary could make use".

31. In this connection, the United Kingdom acknowledges that"Article 11, paragraph 1, differs from the other provisions on which Libyahas relied, in that it does impose obligations on other States" and "is thuscapable, in the abstract, of giving rise to a dispute between Libya and the UnitedKingdom". However, it maintains that it did not violate this provision, and claims in

particular that it "provided Libya with copies of the Scottishcharges, the warrant for the arrest of the accused and the Statement of Facts prepared bythe Lord Advocate". It also recalls that at the time when Libya presented its claims,Libya had not — any more than had the UnitedKingdom — invoked the Montreal Convention, and it concluded that, "Forthe failure of the United Kingdom to supply further information to Libya toconstitute a violation of Article 11, the Convention must at least have been invokedby one of the States concerned."

32. Article 11 of the Montreal Convention is worded asfollows:

"Article 11

1. 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.

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 theduties imposed by Article 11 of the Montreal Convention, the Court concludes thatthere equally exists between them a dispute which concerns the interpretation andapplication of that provision, and which, in accordance with Article 14,paragraph 1, of the Convention, falls to be decided by the Court..

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34. Libya, in the latest version of its submissions, finally asksthe 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 independence of States."

35. The United Kingdom maintains that it is notfor the Court, on the basis of Article 14, paragraph 1, of the MontrealConvention, to decide on the lawfulness of actions which are in any event in conformitywith international law, and which were instituted by the Respondent to secure thesurrender of the two alleged offenders. It concludes from this that the Court lacksjurisdiction over the submissions presented on this point by Libya.

36. The Court cannot uphold the line of argumentthus formulated. Indeed, it is for the Court to decide, on the basis of Article 14,paragraph 1, of the Montreal Convention, on the lawfulness of the actions criticizedby Libya, in so far as those actions would be at variance with the provisions of theMontreal Convention.

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37. In the present case, the United Kingdom hascontended, however, that even if the Montreal Convention did confer on Libya the rights itclaims, they could not be exercised in this case because they were superseded by SecurityCouncil resolutions 748 (1992) and 883 (1993) which, by virtue ofArticles 25 and 103 of the United Nations Charter, have priority over all rights andobligations arising out of the Montreal Convention. The Respondent has also argued that,because of the adoption of those resolutions, the only dispute which existed from thatpoint on was between Libya and the Security Council; this, clearly, would not be a disputefalling within the terms of Article 14, paragraph 1, of the Montreal Conventionand thus not one which the Court could entertain.

38. The Court cannot uphold this line ofargument. Security Council resolutions 748 (1992) and 883 (1993) were infact adopted after the filing of the Application on 3 March 1992. In accordancewith its established jurisprudence, if the Court had jurisdiction on that date, itcontinues to do so; the subsequent coming into existence of the above-mentionedresolutions cannot affect its jurisdiction once established (cf. Nottebohm, PreliminaryObjection, Judgment, I.C.J. Reports 1953, p. 122; Right of Passage over IndianTerritory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142).

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39. In the light of the foregoing, the Court concludes that theobjection to jurisdiction raised by the United Kingdom on the basis of the allegedabsence of a dispute between the Parties concerning the interpretation or application ofthe Montreal Convention must be rejected, and that the Court has jurisdiction to hear thedisputes between Libya and the United Kingdom as to the interpretation or applicationof the provisions of that Convention.

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

41. The principal argument of theUnited 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 obligations alleged to arise under the Montreal Convention) the resolutions 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 determinative of any dispute over which the Court might have jurisdiction".

According to the United Kingdom, those resolutions require thesurrender of the two suspects by Libya to the United Kingdom or theUnited States for trial, and this determination by the Security Council is binding onLibya 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".

The United Kingdom also argues that, should the Court be minded toconsider the questions raised by Libya on the Montreal Convention without regard to theeffect of the Security Council resolutions, it would find itself in the position of havingto proceed to a consideration of the merits of those matters; if the Court were then torule in favour of the position advanced by Libya, it would presumably pronounce judgmenton that basis, although such a judgment would be neither applicable nor enforceable inview of prior decisions of the Security Council which remain in force.

The United Kingdom also adds that the terms of the resolutionsconcerned, as well as the relevant provisions of the Charter, have been fully arguedbefore the Court. The Court would therefore need no further material deriving fromargument on the merits to enable it to interpret the decisions of the Security Council ordetermine their effects.

42. For its part, Libya argues that it is clear from the actualterms of resolutions 731 (1992), 748 (1992) and 883 (1993) that theSecurity Council has never required it to surrender its nationals to theUnited Kingdom or the United States; it stated at the hearing that this remained"Libya's principal argument". It added that the Court must interpret thoseresolutions "in accordance with the Charter, which determined their validity"and that the Charter prohibited the Council from requiring Libya to hand over itsnationals to the United Kingdom or the United States. Libya concludes that itsApplication is admissible "as the Court can usefully rule on the interpretation andapplication of the Montreal Convention . . . independently of the legaleffects of resolutions 748 (1992) and 883 (1993)".

Libya also observes that the arguments of the United Kingdom basedon the provisions of the Charter raise problems which do not possess an exclusivelypreliminary character, but appertain to the merits of the dispute. It argues in particularthat the question of the effect of the Security Council resolutions is not of anexclusively preliminary character, inasmuch as the resolutions under consideration arerelied upon by the United Kingdom in order to overcome the application of theMontreal Convention, and since Libya is justified in disputing that these resolutions areopposable to it.

43. Libya furthermore draws the Court's attentionto the principle that "The critical date for determining the admissibility of anapplication is the date on which it is filed" (Border and Transborder ArmedActions, (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J.Reports 1988, p. 95, para. 66). It points out in this connection thatits Application was filed on 3 March 1992; that Security Councilresolutions 748 (1992) and 883 (1993) were adopted on31 March 1992 and 11 November 1993, respectively; and thatresolution 731 (1992) of 21 January 1992 was not adopted underChapter VII of the United Nations Charter and was only a mere recommendation.Consequently, Libya argues, its Application is admissible in any event.

44. In the view of the Court, this lastsubmission of Libya must be upheld. The date, 3 March 1992, on which Libya filedits Application,is in fact the only relevant date for determining the admissibility of theApplication. Security Council resolutions 748 (1992) and 883 (1993)cannot 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 theApplication, it could not form a legal impediment to the admissibility of the latterbecause it was a mere recommendation without binding effect, as was recognized moreover bythe United Kingdom itself. Consequently, Libya’s Application cannot be heldinadmissible on these grounds.

45. In the light of the foregoing, the Court concludes that theobjection to admissibility derived by the United Kingdom from Security Council resolutions748 (1992) and 883 (1993) must be rejected, and that Libya's Application isadmissible.

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46. In dealing with admissibility, the Agent ofthe United Kingdom also stated that his Government "ask[ed] the Court to rule thatthe intervening resolutions of the Security Council have rendered the Libyan claimswithout object".

The Court has already acknowledged, on several occasions in the past,that events subsequent to the filing of an application may "render an applicationwithout object" (Border and Transborder Armed Actions (Nicaragua v. Honduras),Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95,para. 66) and "therefore the Court is not called upon to give a decisionthereon" (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 aimedat obtaining from the Court a decision not to proceed to judgment on the merits, whichobjection must be examined within the framework of this jurisprudence.

47. The Court must satisfy itself that such anobjection does indeed fall within the provisions of Article 79 of the Rules, reliedupon by the Respondent. In paragraph 1, this Article refers to "Anyobjection . . . to the jurisdiction of the Court or to the admissibility ofthe application, or other objection" (emphasis added); its field ofapplication ratione materiae is thus not limited solely to objections regardingjurisdiction or admissibility. However, if it is to be covered by Article 79, anobjection must also possess a "preliminary" character. Paragraph 1 ofArticle 79 of the Rules of Court characterizes as "preliminary" anobjection "the decision upon which is requested before any further proceedings".There can be no doubt that the objection envisaged here formally meets this condition. TheCourt would also indicate that, in this instance, the Respondent is advancing the argumentthat the decisions of the Security Council could not form the subject of anycontentious proceedings before the Court, since they allegedly determine the rights whichthe Applicant claims to derive from a treaty text, or at least that they directly affectthose rights; and that the Respondent thus aims to preclude at the outset anyconsideration by the Court of the claims submitted by the Applicant and immediatelyterminate the proceedings brought by it. In so far as the purpose of the objection raisedby the United Kingdom that there is no ground for proceeding to judgment on the merits is,effectively, to prevent, in limine, any consideration of the case on the merits, sothat its "effect [would] be, if the objection is upheld, to interrupt furtherproceedings in the case", and "it [would] therefore be appropriate for the Courtto deal with [it] before enquiring into the merits" (Panevezys-SaldutiskisRailway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16),this objection possesses a preliminary character and does indeed fall within theprovisions of Article 79 of the Rules of Court.

Moreover, it is incontrovertible that the objection concerned wassubmitted in writing within the time-limit fixed for the filing of the Counter-Memorial,and was thus submitted in accordance with the formal conditions laid down inArticle 79.

48. Libya does not dispute any of these points.It does not contend that the objection derived by the United Kingdom fromSecurity Council resolutions 748 (1992) and 883 (1993) is an objectionon the merits, which does not fall within the provisions of Article 79 of the Rulesof Court, nor does it claim that the objection was not properly submitted. What Libyacontends is that this objection falls within the category of those which paragraph 7of Article 79 of the Rules of Court characterizes as objections "notpossess[ing], in the circumstances of the case, an exclusively preliminary character"(see paragraph 42 above).

On the contrary, the United Kingdom considers that the objectionconcerned possesses an "exclusively preliminary character" within the meaning ofthat provision; and, at the hearing, its Agent insisted on the need for the Court to avoidany proceedings on the merits, which to his mind were not only "likely to be lengthyand costly" but also, by virtue of the difficulty that "the handling ofevidentiary material . . . might raise serious problems".

Thus it is on the question of the "exclusively" or"non-exclusively" preliminary character of the objection here considered thatthe 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 hashad occasion to examine its precise scope and significance in the Judgments it deliveredin the case concerning Military and Paramilitary Activities in and against Nicaragua(Nicaragua v. United States of America), on 26 November 1984 (Jurisdictionand Admissibility, Judgment, I.C.J. Reports 1984, pp. 425-426) and on26 June 1986 (Merits, Judgment, I.C.J. Reports 1986, pp. 29-31),respectively. As the Court pointed out in the second of those Judgments,

"Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits 'whenever the interests of the good administration of justice require it' (Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56), and in particular where the Court, if it were to decide on the objection, 'would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution" (ibid.) (I.C.J. Reports 1986, pp. 29-30, para. 39).

However, the exercise of that power carried a risk,

"namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties to fully plead the merits — and this did in fact occur (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure" (ibid. p. 30, para. 39).

The Court was then faced with the following choice: "to revise theRules so as to exclude for the future the possibility of joinder to the merits, so thatevery objection would have to be resolved at the preliminary stage, or to seek a solutionwhich would be more flexible" (ibid., p. 30, para. 40). The solutionadopted in 1972 was ultimately not to exclude the power to examine a preliminary objectionin the merits phase, but to limit the exercise of that power, by laying down theconditions more strictly. The Court concluded, in relation to the new provision thusadopted:

"It thus presents one clear advantage: that it qualifies certain objections as preliminary, making it clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage." (Ibid., p. 31, para. 41.)

50. The Court must therefore ascertain whether,in the present case, the United Kingdom's objection based on the Security Councildecisions contains "both preliminary aspects and other aspects relating to themerits" or not.

That objection relates to many aspects of the dispute. By maintainingthat Security Council resolutions 748 (1992) and 883 (1993) have renderedthe Libyan claims without object, the United Kingdom seeks to obtain from the Court adecision not to proceed to judgment on the merits, which would immediately terminate theproceedings. However, by requesting such a decision, the United Kingdom isrequesting, in reality, at least two others which the decision not to proceed to judgmenton the merits would necessarily postulate: on the one hand a decision establishingthat the rights claimed by Libya under the Montreal Convention are incompatible with itsobligations under the Security Council resolutions; and, on the other hand, a decisionthat those obligations prevail over those rights by virtue of Articles 25 and 103 ofthe Charter.

The Court therefore has no doubt that Libya's rights on the meritswould not only be affected by a decision, at this stage of the proceedings, not to proceedto judgment on the merits, but would constitute, in many respects, the very subject-matterof that decision. The objection raised by the United Kingdom on that point has thecharacter of a defence on the merits. In the view of the Court, this objection does muchmore than "touch[ing] upon subjects belonging to the merits of the case" (CertainGerman Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,P.C.I.J., Series A, No. 6, p. 15); it is "inextricablyinterwoven" with the merits (Barcelona Traction, Light and Power Company, LimitedPreliminary Objections, Judgment, I.C.J. Reports 1964, p. 46).

The Court notes furthermore that the United Kingdom itselfbroached many substantive problems in its written and oral pleadings in this phase, andpointed out that those problems had been the subject of exhaustive exchanges before theCourt; the United Kingdom Government thus implicitly acknowledged that the objectionraised and the merits of the case were "closely interconnected" (BarcelonaTraction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J.Reports 1964, p. 46, and the reference to Pajzs, Cs½ky, Esterh½zy, Order of23 May 1936, P.C.I.J., Series A/B, No. 66 , p. 9).

If the Court were to rule on that objection, it would thereforeinevitably be ruling on the merits; in relying on the provisions of Article 79 of theRules of Court, the Respondent has set in motion a procedure the precise aim of which isto prevent the Court from so doing.

The Court concludes from the foregoing that the objection of theUnited Kingdom according to which the Libyan claims have been rendered without objectdoes not have "an exclusively preliminary character" within the meaning of thatArticle.

51. Having established its jurisdiction and concluded that theApplication is admissible, the Court will be able to consider this objection when itreaches the merits of the case.

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52. In accordance with Article 79,paragraph 7, of the Rules of Court, time-limits for the further proceedings shall befixed subsequently by the Court.

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  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 concerning the interpretation or application of the Montreal Convention of 23 September 1971;

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;

(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 application 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;

(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 rendered 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, Fleischhauer; Judge ad hoc Sir Robert Jennings.

 

Done in English and in French, the English text being authoritative, atthe Peace Palace, The Hague, this twenty-seventh day of February, one thousand ninehundred and ninety-eight, in three copies, one of which will be placed in the archives ofthe Court and the others transmitted to the Government of the Great Arab Libyan Jamahiriyaand 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 BEDJAOUI, GUILLAUME and RANJEVA append a joint declaration tothe Judgment of the Court; Judges BEDJAOUI, RANJEVA and KOROMA append a joint declarationto the Judgment of the Court; Judges GUILLAUME and FLEISCHHAUER append a joint declarationto the Judgment of the Court; Judge HERCZEGH appends a declaration to the Judgment of theCourt.

Judges KOOIJMANS and REZEK append separate opinions to the Judgment ofthe Court.

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

 

(Initialled) C.G.W.

(Initialled) E.V.O.

___________

Where a declaration or opinion has been submitted in the two official languages of the Court, both texts are reproduced hereafter.

Where a declaration or opinion has been submitted in one of the two official languages of the Court, its translation by the Registry into the other official language will appear in the printed version of the Judgment.

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