PRESS BRIEFING BY PRESIDENT OF INTERNATIONAL COURT OF JUSTICE

Press Briefing

PRESS BRIEFING BY PRESIDENT OF INTERNATIONAL COURT OF JUSTICE

The dispute over the Lockerbie air atrocity was a very important case in the constitutional history of the United Nations, Judge Stephen Schwebel, President of the International Court of Justice (ICJ) told a Headquarters press briefing this afternoon.

Currently before the Court was an aspect of the case which involved questions of jurisdiction, inadmissibility and the position of a Member State whose rights and obligations under the United Nations Charter were in conflict with its rights and obligations under other treaties, Mr. Schwebel told correspondents. He added, "I cannot venture to hazard a guess as to what the decision of the Court will be on this very important matter, but I would invite you to follow the matter and deal with it when the decision comes down."

Outlining the dispute, Mr. Schwebel recalled that following the 1988 bombing of Pan Am Flight 103 over Scotland, the United States and the United Kingdom had, in late 1991 and early 1992, sought Security Council action to compel Libya to hand over two suspects for trial in either country. On the other hand, Libya had brought applications in the ICJ against both countries, claiming that the matter should be dealt with under the Montreal Convention on the suppression of acts of sabotage against civil aircraft.

Libya, he went on, maintained that the Convention entitled it to choose whether to try the suspects in Libyan courts or to extradite them. It had subsequently placed them under detention and was prepared to try them, but the cooperation it sought from the United States and the United Kingdom for this purpose had not been forthcoming.

"So Libya sought to interdict action in the Security Council by the United States and the United Kingdom, in particular the seeking of sanctions to oblige Libya to surrender the accused for trial either in Scotland or the United States", Mr. Schwebel said.

In 1992, he went on, the ICJ declined to issue an order of provisional measures -- "a kind of interim injunction" -- on the ground that by the time the Court's decision came to be made, the Security Council had adopted resolution 748 which obliged Libya to comply with a previous resolution requesting the transfer of the suspects either to the United Kingdom or the United States.

Mr. Schwebel then quoted Article 103 of the United Nations Charter: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

The dispute remained deadlocked from this point, he said, with the parties exchanging written pleadings on the merits of the case. Before the merits could be heard, the United States and the United Kingdom had put in a preliminary objection (an objection to the jurisdiction of the Court) claiming that there was no dispute between the parties under the Montreal Convention.

According to the two countries, Mr. Schwebel said, "even if there were a dispute, in any event, for the reason of the adoption of resolution 748 and subsequently resolution, the decision of the Security Council is governing and the Court would not be entitled to substitute its view for that of the Security Council on what constitutes a threat to the peace".

He went on: "So they have put in objections of this kind to jurisdiction and admissibility which have been resisted by Libya which maintains that there is a dispute under the Montreal Convention, under the long-established criteria of the Court for finding whether there is or is not a dispute and that the Court is entitled to review resolutions of the Security Council which it maintains are ultra vires -- beyond the powers of the Council. The Council cannot legislate to override the treaty rights of a State under another treaty."

On other topics, Mr. Schwebel said the ICJ had rendered 63 judgments and 23 advisory opinions since its inception. He said the most recent decision was delivered last September in a dispute between Slovakia and Hungary over dams on the River Danube. It was a decision of enormous importance to those countries and of "very considerable importance to the development of international law in respect of the law of international water courses, the international environment, state responsibility, state succession and the law of treaties".

Both parties had greeted the decision with satisfaction and were now negotiating on its implementation, he said. Under the special agreement, a mini-treaty by which they had agreed to bring the case to the Court, the two countries had six months to agree on measures to execute the judgment and either country could bring the issue back to the Court if they failed to agree.

Mr. Schwebel said the Court's most recent advisory opinion was in response to the request of the General Assembly on the legality of the threat or use of nuclear weapons. It was an important opinion that figured on the agenda of the current General Assembly as well as that of the previous one.

ICJ Briefing - 3 - 31 October 1997

Asked whether the judgments of the ICJ had the force of international law, and whether the nuclear-weapons States were therefore in violation, Mr. Schwebel said that what the Court had given was an advisory opinion. It did not act as a kind of general counsel to the United Nations. "The conclusions it reaches in an advisory opinion are based on legal and not policy considerations."

To a correspondent who asked why so many countries had withheld recognition of the Court's jurisdiction, Mr. Schwebel said there was no accepted answer that anyone could give with confidence to the question. Roughly one third of the world community had given the Court a general jurisdiction under the so-called optional clause, which provided that a State may, in advance of a particular dispute, give the Court jurisdiction over possible future disputes vis-a-vis any other state that had so agreed.

He said States had displayed considerable caution in giving the Court that jurisdiction, partly because two thirds of them had not and also because many of those that had done so had subjected their submissions to substantial reservations that excluded certain sorts of disputes from the jurisdictions they submitted.

"The short answer is probably -- one cannot be certain -- that the politicians and diplomats who direct the affairs of States prefer to keep their options open; prefer to keep within their own hands the settlement of disputes that may arise between them and other States rather than putting that decision in the hands of a third party", Mr. Schwebel said.

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