Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident

at Lockerbie (Libyan Arab Jamahiriya v. United States of America)

Summary
Libya sought the issuance Provisional Measures against the US and UK for pressuring them into surrendering jurisdiction of the two Libyan nationals who were to be prosecuted
for terrorism. Libya cites as the basis for its rights the 1971 Montreal Convention, and asserts that the US and the UK should cooperate with them under the terms of this
Convention. The UN Security Council, who were notified of the dispute upon the filing of the application with the ICJ, were of the view however that Libya’s refusal to surrender
the two accused were tantamount to government protection of terrorism and held in a resolution that Libya must comply with the requests of the US and the UK. The ICJ held
that the Security Council’s resolution is binding and must be followed, and that it cannot issue Provisional Measures that might circumvent it.

A. Institution of Proceedings (March 3, 1992)

 Libya filed two separate applications instituting proceedings against the US and the UK, in respect of a dispute over the interpretation and application of the
1971 Montreal Convention.
o The dispute arose from acts resulting in the aerial incident that occurred over Lockerbie, Scotland, on December 21, 1988, specifically the charging
and indictment of two Libyan nationals by a Grand Jury of the US and by the Lord Advocate of Scotland, respectively, with having caused a bomb
to be placed aboard Pan Am flight 103, causing the airplane to crash, all persons aboard being killed.
 In accordance with Article 40, paragraph 3, of the Statute of the Court1, copies of the Application were transmitted to the Members of
the United Nations through the Secretary-General of the United Nations, and to the other States entitled to appear before the Court
 Libya pointed out that the acts alleged constituted an offence within the meaning of Article 1 of the Montreal Convention, thus making it the applicable
agreement.
 Libya asserted that it had fully complied with its own obligations under that instrument, specifically Article 5, and that there was no extradition treaty between
Libya and the respective other Parties, so that Libya was obliged under Article 7 to submit the case to its competent authorities for the purpose of prosecution.
o The said indictment was communicated to Libya. At the time the indictment was communicated to Libya, or shortly thereafter, the accused were present in
the territory of Libya and have remained there since.
o After being apprised of the indictment, Libya took such measures as were necessary to establish its jurisdiction over the offenses alleged therein. Libya also
took measures to ensure the presence of the accused in Libya in order to enable criminal proceedings to be instituted and initiated a preliminary enquiry
into the facts.
o Libyan investigators sought information from the authorities in the US, and expressed their willingness to travel to the US or elsewhere to review the evidence
or co-operate with the investigations in those countries.
 The Libyan Government also sent communications to the Attorney General of the US and the foreman of the Grand Jury which issued the
indictment requesting their co-operation in the Libyan judicial investigations.
 Libya received no response to any of these initiatives, and the US together with its law enforcement officials have refused to co-operate in any
respect with the Libyan investigations.
o There is no extradition treaty in force between Libya and the United States.
 Consequently, Libya has not extradited the two accused.
 Nor has Libya surrendered them, despite the efforts of the United States to pressure Libya to do so.
o Libya has submitted the case to its competent authorities for the purpose of prosecution, which authorities shall take their decision in the same manner as
in the case of any ordinary offence of a serious nature under Libyan law.
o On 17 January 1992, Libya addressed a letter from Mr. Ibrahim Elbushari, Secretary of the People's Committee for Foreign Liaison and International Co-
operation, to Mr. James Baker, Secretary of State of the United States.
 In this letter, Mr. Elbushari referred to the fact that Libya had undertaken the necessary measures relating to the incident provided for in the
Montreal Convention. Mr. Elbushari also indicated that, despite requests to the competent United States authorities to provide assistance to the
Libyan judicial authorities, these requests had not met with any response, and he invited the United States to agree to arbitration in accordance
with Article 14 (1) of the Montreal Convention.
 The United States failed to respond formally to that letter. Nonetheless, after the letter was sent, the United States Ambassador to the United
Nations stated that the situation was one "to which standard procedures are clearly inapplicable", that "the issue at hand is not some difference
of opinion or approach that can be mediated or negotiated", and that ". . . neither Libya nor indeed any other State can seek to hide support for
international terrorism behind traditional principles of international law and State practice".
o Thus, despite the efforts of Libya to resolve the master within the framework of international law, including the Montreal Convention, the United States has
rejected this approach and continues to adopt a posture of pressuring Libya into surrendering the accused.
 Libya made two separate requests to the Court to indicate certain provisional measures:
o to enjoin the United States and the United Kingdom respectively from taking any action against Libya calculated to coerce or compel it to surrender
the accused individuals to any jurisdiction outside Libya; and
o to ensure that no steps were taken that would prejudice in any way the rights of Libya with respect to the legal proceedings that were the subject of
Libya’s Applications.

B. Provisional Measures (April 14, 1992 Judgment)

 The Court notes that on 31 March 1992 (three days after the close of the hearings) the United Nations Security Council adopted resolution 748 (1992), stating,
inter alia, that the Security Council:
o Deeply concerned that the Libyan Government has still not provided a full and effective response to the requests in its resolution 731 (1992)2 of
21 January 1992,

1 Article 40
1. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In
either case the subject of the dispute and the parties shall be indicated.
2. The Registrar shall forthwith communicate the application to all concerned.
3. He shall also notify the Members of the United Nations through the Secretary-General, and also any other states entitled to appear before the Court.
2 the United Nations Security Council adopted resolution 731 (1992):

(a) Deeply concerned over the results of investigations, which implicate officials of the Libyan Government and which are contained in Security Council
documents that include the requests addressed to the Libyan authorities by France, the United Kingdom of Great Britain and Northern Ireland, and the United
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America)

o Convinced that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for
the maintenance of international peace and security,
o Determining, in this context, that the failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism and in
particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitute a threat to international peace
and security,
o Acting under Chapter VII of the Charter,
 Decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) regarding
the requests contained in the documents;
 Decides also that the Libyan Government must commit itself definitively to cease all forms of terrorist action and all assistance to
terrorist groups, and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism;
 Decides that on 15 April 1992 all States shall adopt the measures set out below, which shall apply until the Security Council decides that
the Libyan Government has complied with paragraphs 1 and 2 above;
 Calls upon all States, including States not members of the United Nations, and all international organizations, to act strictly in accordance
with the provisions of the present resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any
international agreement or any contract entered into or any license or permit granted prior to 15 April 1992;
 Libya argues:
o that resolution does not prejudice the rights of Libya to request the Court to indicate provisional measures, inasmuch as by deciding, in effect, that
Libya must surrender its nationals to the United States and the United Kingdom, the Security Council infringes, or threatens to infringe, the enjoyment
and the exercise of the rights conferred on Libya by the Montreal Convention and its economic, commercial and diplomatic rights;
 whereas Libya therefore claims that the United States and the United Kingdom should so act as not to infringe Libya's rights, for example
by seeking a suspension of the relevant part of resolution 748 (1992);
o the risk of contradiction between the resolution and the provisional measures requested of the Court by Libya does not render the Libyan request
inadmissible, since there is in law no competition or hierarchy between the Court and the Security Council, each exercising its own competence;
 whereas Libya recalls in this connection that it regards the decision of the Security Council as contrary to international law, and considers
that the Council has employed its power to characterize the situation for purposes of Chapter VII simply as a pretext to avoid applying
the Montreal Convention.
 The US argues:
o that resolution was adopted under Chapter VII3 rather than Chapter VI4 of the Charter and was framed as a "decision" and contended that, given
that binding decision, no object would be served by provisional measures;
 that, irrespective of the right claimed by Libya under the Montreal Convention, Libya has a Charter-based duty to accept and carry out
the decisions in the resolution, and other States have a Charter-based duty to seek Libya's compliance;
o that any indication of provisional measures would run a serious risk of conflicting with the work of the Security Council;
 that the Council had rejected (inter alia) Libya's contention that the matter should be addressed on the basis of the right claimed by
Libya under the Montreal Convention, which Libya asks the Court to protect through provisional measures
 The Court held that both Libya and the US, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in
accordance with Article 25 of the Charter;
o whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision
contained in resolution 748 (1992); and
o whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other
international agreement, including the Montreal Convention.
 The Court, not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the
situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for
protection by the indication of provisional measures.
 Furthermore, an indication of the measures requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by the United States
by virtue of Security Council resolution 748 (1992).
 The Court found, by 11 votes to 5, that the circumstances of the case were not such as to require the exercise of its power under Article 415 of the Statute to
indicate provisional measures.

C. Subsequent Developments
 February 27, 1998 Judgment: The Court found that it had jurisdiction to deal with the merits of the case brought by Libya against the United States of America
concerning the aerial incident at Lockerbie. It also found that the Libyan claims were admissible.
 September 9, 2003: the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States on the other, jointly notified the
Court that they had “agreed to discontinue with prejudice the proceedings”.
o Following those notifications, the President of the Court, on September 10, 2003, made an Order in each case placing on record the discontinuance
of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.

States of America [S/23308], in connection with the legal procedures related to the attacks carried out against Pan American flight 103 and Union de transports
aériens flight 772
(b) Strongly deplores the fact that the Libyan Government has not yet responded effectively to the above requests to cooperate fully in establishing
responsibility for the terrorist acts referred to above against Pan American flight 103 and Union de transports aériens flight 772
(c) Urges the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international
terrorism;
3 Chapter VII of the UN Charter: Action With Respect To Threats To The Peace, Breaches Of The Peace, And Acts Of Aggression
4 Chapter VI of the UN Charter: Pacific Settlement of Disputes
5 Article 41

1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective
rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.