Lockerbie Brief

I. The Court: The International Court of Justice

II. Parties:
A. Libya
B. The United States

III. Facts:
A. Pan Am flight 103 was destroyed on December 21, 1998 over
Lockerbie, Scotland.
B. A U.S. Grand Jury charged two Libyan nationals with placing a bomb
on flight 103 that exploded, causing the plane to crash.
C. On 27 November 1991 the United States and the United Kingdom
issued a joint declaration requiring the accused to be surrendered for
the crime and that Libya accept responsibility for the actions of its
officials. The declaration further required full cooperation in the
criminal persecution of the accused and payment of appropriate
compensation.
D. The Security Council issued two resolutions (731 & 748). 731
demanded the surrender of the accused and 748 allowed for sanctions
against Libya for non-compliance with 731.

IV. Issues:
A. Whether the ICJ has the jurisdiction to apply provisional measures
against the SC resolutions instituting sanctions against them and
calling for the surrender of their accused nationals.
B. Whether the Montreal convention, articles 5, 7, 8, & 11, allowing
criminal prosecution of nationals of a state under their home state law
when committing crimes against the safety of civil aviation, makes
Security Council Resolution 748 requiring compliance with SC
Resolution 731 calling for the extradition of its accused nationals and
full cooperation with judicial proceedings against them, and imposing
sanctions on Libya, illegal.

V. Sources:
A. The Montreal Convention; Articles 5, 7, 8, 11
B. UN Security Council Resolution 731
C. UN Security Council Resolution 748
D. The United Nations Charter; Articles 25 & 103, Chapters VI & VII
E. The Statute of the International Court of Justice; article 41

VI. Reasoning:
A. The court reasoned that it did have jurisdiction to consider Libya’s
request for provisional measures limiting the sanctions imposed by SC
 Resolution 748 and calling for the surrender of its accused nationals
since there does not exist in law any competition or hierarchy between
the Court and the SC. Rather, each exercises its own competence.
B. The court resoned that since SC Resolution 748 was framed as a
decision adopted under Chapter VII of the UN Charter, both Libya and
the U.S. are obliged to carry out the decision in accordance with Article
25 of the Charter. To this the Court added that Under Article 103 of
the Charter the obligations of the Parties in respect to such decisions
prevail over their obligations under any other international agreement,
including the Montreal Convention.

VII. Holding:
A. The circumstances of the case do not require the ICJ to implement
provisional measures under Article 41 of its’ Statute.

VIII. Significance:
The Court established its lack of subservience to the Security Council,
setting a precedent for the review of Security Council Resolutions. The
court set forward the preeminence of SC decisions under Chapter VII
above existing international agreements. This is significant because it
gives the SC impetus to show restraint in its conduct of the powers
awarded to it under Chapter VII as well as establishing the ICJ’s
jurisdiction to review the legality of SC Decisions.