Non-Corrigé
Uncorrected
International Court
of Justice
CR 9214
TIΠBAGUE
Cour internationale
YEAR1992 de Justice
LA BAYE
Public sitting
held on Friday 27 .Ma.rch 1992, at 10 a.a. ~ at the Peace Palace,
Vice-President Oda, presiding
in the caae concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
Request for the Indication of Provisional Measures
(Libyan Arab Ja:mab.iriya .L..United Kingdom)
in the case concerning Questions of Interpretation and Application
of the 1971 ~treal Convention arising
froa the Aerial Incident at LoclŒrbie
Requ.est Eor the Indication of Provisional lleasures
(Libyan Arab Jamahiriya .L..United States of America)
VERBATIN RECORD
AHNEK 1992
Audience publique
tenue le vendredi 27 aars 1992, à 10 heures, au Palais de la Paiz,
sous la présidence de Jll.Oda, Vice-Président
en l'affaire relative à des Questions d'interprétation et d'application
de la convention de Montréal de 1971 résultant
de l'incident aérien de Lockerbie
Demande en indication de mesures conservatoires
(Ja:aahiriya arabe libyenne c. Etats-Unis d'Amérique)
en l'affaire relative à des Questions d'interprétation et d'application
de la convention de Montréal de 1971 résultant
de l'incident aérien de LoclŒrbie
(Jamahiriya arabe libyenne c. Royaume-Uni)
Demande en indication de mesures conservatoires
COMPTE RENDU
OOOlC - 2 -
Present:
Vice-President Oda, Acting President
Judges Sir Robert Jennings, President of the Court
Lachs
Ago
Schwebel
Bedjaoui
ru
Evens en
Tarassov
Guillaume
AguilardMawdsley
Weeramantry
Ranjeva
Ajibola
Judge ad hoc El-Kosheri
Registrar Valencia-Ospina
•
OOO!C - 3 -
Présents:
M. Oda, Vice-Président de la Cour, faisant fonction de Président
Sir Robert Jennings, Président de la Cour
MM. Lachs
Ago
• Schwebel
Bedjaoui
Ni
Evensen
-Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola, juges
M. El-Kosheri, juge ad hoc
M. Valencia-Ospina, Greffier
---l
OOOlC - 4-
The GovenŒent oE the Libyan Arab Ja.ahiriya will be represented by:
H. E. Mr. Al Faitouri Sh. Mohamed, Secretary of the People's Office
of the Socialist People's Libyan Arab Jamahiriya in Bruxelles,
as Agent; .,:~
Mr. Abdelrazeg El-Murtadi Suleiman, Professor of Public ,,
International Law at the Faculty of Law, Benghazi, .,l
Mr. Abdulhamid M. Raeid, Adocate Before Supreme Court,
as COU!lSel;
Mr. Ian Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy,
as Counsel and advocate;
Mr. Eric David,
as Counsel.
The Governll9nt oE the United States oE America will be represented by:
The Honorable Edwin D. Williamson, Legal Adviser-of the Department
of State,
as Agent and Counsel;
Mr. Alan J. Kreczko, Deputy Legal Adviser, Department of State,
as Deputy Agent and Counsel;
Mr. Charles N. Brower, White & Case,
Mr. Bruce C. Rashkow, Assistant Legal Adviser, Department of State,
Mr. Jonathan B. Schwartz, Assistant Legal Adviser, Department of
State,
Counsel and Advocates;
Mr. Robert K. Harris, Départment of State,
Mr. Robert A. Kushen, Départment of State,
Mr. D. Stephen Mathias, Legal Attache, United States American
Embassy, '.l
Mr. Bryan Murtagh, Départment of Justice,
Ms. Lucy F. Reed, Legal Counselor, United States American Embassy,
Attorney-Advisers.
OOOlC - 5 -
Le Gouverna-mt de la JUJahiriya arabe libyenne sera représenté par :
S. Exe. Al Faitouri Sh. Mohamed, secrétaire du bureau populaire de
la Jamahiriya arabe libyenne populaire et socialiste à Bruxelles,
comme agent;
M. Abdelrazeg El-Murtadi Suleiman, professeur de droit international
. publie à la faculté de droit, Benghazi,
•
M. Abdulhamid M. Raeid, avocat à la Cour suprême,
comme çonseils;
M. Ian Brownlie, Q.C.,
M. Jean Salmon,
M. Erie Suy,
comme conseils et avocats;
Mr. Erie David,
comme conseil.
Le Gouverne.ent des Etats-Unis d'A.érique sera représenté par :
L'honorable Edwin D. Williamson, conseiller juridique, département
d'Etat,
agent et conseil;
M. Alan J. Kreezko, conseiller juridique adjoint, département
d'Etat,
agent adjoint et conseil;
M. Charles N. Brower, White & Case,
M. Bruce C. Rashkow, assistant du conseiller juridique, département
d'Etat,
M. Jonathan B. Schwartz, assistant du conseiller juridique,
département d'Etat,
conseils et avocats;
M. Robert K. Harris, département d'Etat,
.. M. Robert A. Kushen, département d'Etat,
'
M. D. Stephen Mathias, attaché juridique, ambassade des Etats-Unis,
M. Bryan Murtagh, département de la justice,
MmeLucy F. Reed, conseiller juridique, ambassade des Etats-Unis,
avocats-conseillers.
OOOlC - 6 -
The United Iingd.Ma of Great Britain and Northern Ireland will be
represented by:
Mro Fo Do Be~, CoMoGo,Legal Adviser to the Foreign and
Commonwealth Office,
as Agent;
Mrso Wilmshurst, Legal Counsellor in the Foreign and Commonwealth
Office,
as Deputy Agent;
Mro Alan Rodger QoCo, Solicitor General of Scotland,
Mso Rosalyn Higgins, Q ·Co,
Mro Christopher Greenwood, Barrister-at-Law,
as Counse1;
Mro Patrick Layden,
Mro Norman McFayden,
as Adviserso
OOOlC - 7 -
L8 Gouverne.ant du Royauae-Uni sera représenté par :
M.F. D. Berman, C.M.G., conseiller juridique du ministère des
affaires étrangères et du Commonwealth,
comme agent;
..
M. MmeE. S. Wilmshurst, conseiller juridique au ministère des
affaires étrangères et du Commonwealth,
comme agent adjoint;
M. Alan ~odger Q.C., Solicitor General d'Ecosse,
MmeRosalyn Higgins, Q.C.,
M.Christopher Greenwood, avocat,
comme conseils;
M. Patrick Layden,
M. Norman McFayden,
comme conseillers.
OOOlC - 8 -
The ACTINGPRESIDENT: Please be seated. The Court today will hear
the statement by the United States in the case brought by Libya against
the United States. I therefore call upon Mr. Williamson, Agent for the
United States of America.
Mr. WILLIAMSON:Thank you Mr. President and Members of the Court.
I wish to open my presentation by conveying the highest regards of the
United States Government to the Court and confirming its recognition of
and support for the Court as the principal judicial organ of the
United Nations. It is my privilege and honor to appear before you for
the first time, and to represent my Government in this case. •
The Socialist People's Libyan Arab Jamahiriya (which, if I may, I
will hereafter refer to as "Libya" or the "Government of Libya") has come
to this Court seeking provisions! measures to protect an asserted "right"
to prosecute two individuals charged in an attack on Pan-Am 103, a
civilian airliner. Libya claims that this right needs urgent protection ·
against United States coercion.
It is clear, however, that unilaterial U.S. action is not what
concerna Libya.
On 21 January, the United Nations Security Council considered
materials provided by the United States, the United Kingdom and France
implicating Libyan agents in not just the bombing of Pan-Am flight 103,
but also the bombing of UTAflight 772. Over four hundred and forty-one
1.
persona from 32 countries were killed in the two terrorist attacks. The
Council also considered Libyan denials of involvement, Libyan offers to
prosecute, and Libyan claims that the issue should be handled under the '"'
Montreal Convention. The Council responded with the unanimous adoption
of Security Council resolution 731.
0043c/CR/4/Tl/mcs~ - - - - - - - -
!
- 9 -
Resolution 731 makes clear that the issue presented by the bombings
of Pan-Am 103 and UTA772 is part of a broader pattern of support for
international terrorism, not an isolated case of criminal activity. The
Council called on Libya, "so as to contribute to the elimination of
international terrorism", to provide a full and effective response to the
requests of the United States, France and.the United Kingdom, including
the request of the United Kingdom and the United States that Libya band
over the two individuals, and the requests of all three Governments that
Libya "commit itself concretely and definitively to cease all forma of
terrorist action and all assistance to terrorist groups" and that it
"promptly, by concrete actions, prove its renunciation of terrorism".
Before outlining the speeches to be made on behalf of my Government,
I feel eompelled to respond to the suggestion made yesterday by the Agent
for Libya that the United States has approached this issue as a
North-South issue or a great power-small country dispute. Resolution 731
was adopted unanimously. The 15 members of the Security Council,
reflecting an economie and geographie cross-section of the United
Nations' membership, all agreed that the Libyan response to the U.S.,
U.K. and French requests was deplorable. Let me read to you some of the
preambles and operative paragraph 2 of resolution 731, which, as I
recall, were not referred to in Libya's presentation. In two preambles,
the Council noted that it was:
"Deeply concerned over the resulta of investigations,
which implicate officiais of the Libyan Government ••• in
connection with the legal procedures related to the attacks
carried out against Pan American flight 103 ·and Union de
• transports aériens flight 772;
and
Determined to eliminate international terrorism."
In operative paragraph 2, the Council:
0043c/CR/4/Tl/mcs - 10 -
"Strongly deplores the fact that the Libyan Government
has not yet responded effectively to the [U.S., U.K. and
French] requests to cooperate fully in establishing
responsibility for the terrorist acta referred to above against
Pan American flight 103 and Union de transports aériens
flight 772."
Thus, resolution 731 makes clear that, far from being a bilateral issue
between the United States and Libya, or a North-South issue or a big
power-small country dispute, the bombing of Pan-Am 103, and terrorism
generally, is a matter of international concern.
Yesterday, the Agent for Libya and his counsel also suggested that
the dispute is limited to a question of the surrender of two
individuals. They suggested that Libya has otherwise met the U.S.
demanda, and has acceded to the French requests in full. The
Security Council will have to decide whether Libya has provided a full
and effective response. For our part, Libya has satisfied none of the
u.s. requests.
0043c/CR/4/Tl/mcs ---------------
- 11 -
Most Importantly, Libya bas failed tc take concrete steps to distance
itself from terrorism. As for the assertion that Libya bas acceded tc
., the French request, I would note to the Court that France bas joined
the United States and the United Kingdom in seeking a new Security
Council resolution imposing sanctions on Libya because of is failure
tc comply with Resolution 731. Mr. President, the Security Council is
seised of the matter. The Secretary-General undertook severa! efforts
tc secure compliance with the resolution but on March 3, the day Libya
filed its Application with this Court, he reported that Libya was
still not in compliance with the resolution. The Council is new
considering whether to impose sanctions on Libya for failure tc comply
with Resolution 731.
Having bad its arguments rejected by the Security Council; Libya
now brings those same arguments to the World Court. It is the first
example in the history of this Court of a State trying to use the
Court to undo the work of the Security Council. One of Libya's
counsel argued that Libya•s Application to the Court and request for
provisional measures is "complementary" to Security Council
consideration of the matter. This is an astounding use of the ward
"complementary" in view·cf the remainder of counsel's presentation.
Libya•s counsel did affirm that Libya was not seeking to enjoin
Security Council consideration under Chapter VI of the U.N. Charter of
CR4/T2-afmr
- 12 -
the matters it is attempting to bring before the Court. He made it
clear, however, that Libya is asking the court to order the united
States and the United Kingdom to abstain from taking any action in the
Security Council that would interfere with the asserted rights of
Libya. In ether words, the u.s. and the U.K. are not tc play any rôle i•
in any response by the Security Council under Chapter VII to Libya•s
rôle in the bombing of Pan Am 103, if such response would interfere
with Libya•s asserted rights.
This is an extraordinary proposition. It is flatly inconsistant
with Article 35 of the Charter, which permits any member of the United
Nations to bring any dispute to the attention of the Security Council,
and with Article 27, concerning U.S. membership in the security
council. It clearly is aimed at restricting, not complementing,
Security Council consideration of the matter.
Libya's Application for provisional measures invites the Court
into conflicts with the Council. First, as will be shown in greater
detail later, it asks this Court to proceed on the basie that Libya
has the sole right tc prosecute the two individuals, when the Council
has unanimously deplored the Libyan suggestion that Libyan prosecution
constitutes an effective response to the U.s. request. Second,
apparently because of imminent Security council consideration of the
CR4/T2-afm - 13 -
·~ .
inadequate Libyan response, Libya suggests ta this Court that it must
take the extraordinary step of indicating provisional measures that
would significantly interfere with that consideration.
Mr. President, apart from imminent Security Council action, Libya
has advanced only one ether possible justification for its request for
provisional measures. It attempts to weave together from statements
in which u.s. officiais did not hrule out any option" that the U.S.
threatened the use of force to coerce Libya to surrender the accused
~ individuals. As we will show later, Libya's counael haa misdescribed
those statements - the United States has made no auch threat. We have
acted unilaterally on the basie of our evidence of Libyan involvement
in yet another act of terrorism against u.s. nationale. Instead, we
have worked through the Security Council on a collective response.
New, anticipating the Council's next steps, Libya seeks to enjoin us
from working through the Council.
Mr. President, 196 Americans were killed in the terrorist attacks
on Pan Am 103 and UTA 772, blatant and obscene violations of
international law. I am sure, therefore, that you can understand the
outrage of the United States and, I am certain, of the 32 ether States
whose nationale were murdered, at the thought of Libya trying to use
this Court to shield itself from international condemnation. We are
confident that the Court also will not be used in this way.
r
CR4/T2-afm - 14 -
Mr. President, this morning, after reviewing the facts and
context of the situation, the United States will demonstrate that the
Libyan request for provisional measures is baseless and should be
denied. We will demonstrate four basic propositions, each of which
provides an independent basie for denying the Libyan request.
•
First, we will demonstrate that is it wholly inappropriate for
Libya to ask this Court to constrain or otherwise interfere with the
Security Council in the exercise of its primary responsibility under
the United Nations Charter for the maintenance of international peace
and security, or with the United States in bringing issues before the
Council. The U.S. response to the bombing of Pan Am 103 has been
focused on obtaining an end to Libyan support of terrorism by working
through the UN Security Council. As Libya's representatives now
acknowledge, Libya seeks to enjoin the United States from seeking
further Council action. This portion of our argument will be -
presented by Assistant Legal Adviser for United Nations Affaire,
Bruce Rashkow.
Second, we will demonstrate that Libya has not met the
jurisdictional threshold to bring the case before the ICJ. The
provisions of the Montreal Convention precondition this Court•s
jurisdiction on a failure of the parties to agree on arbitration
within six months of a State•s request for arbitration. Even if one
assumes that Libya made adequate request for arbitration through its
CR4/T2-afm - 15 -
January lB letter [Libyan Document 23] and the etatement by its
Permanent Representative to the United Nations -(with the further
assumption that he was authorized to speak for Libya), only six weeks
elapsed between the Libyan "request" for arbitration and its
application to this Court •
•
•
CR4/T2-afm - 16 -
Accordingly, prima facie, the Montreal Convention does not provide a
possible basis for the Court's jurisdiction. This portion of our
argument will be presented by former Deputy Legal Adivser Charles Brower,
!
who incidentally headed the United States delegation to the conference
•
that produced the Montreal Convention. '
Third, we will demonstrate that Libya's request does not satisfy the
established criteria of this Court for taking the extraordinary step of
indicating provisional measures. In so doing, we will show that Libya's
claim of threatened U.S. coercion is completely unsubstantiated and does
not approach the Court's long standing standards of urgency, or the
restriction of provisional measures to the protection of the respective
rights of the parties; that Libya's asserted exclusive right to
prosecute is illusory, whereas, in contrast, the U.S. rights challenged
by Libya's request for interim relief are well-establihed and clear; and
that therefore the Court can only fulfill its function of preserving the
rights of the parties by denying Libya's claim for interim measures.
Assistant Legal Adviser for Near Eastern and South Asian Affaira,
Jonathan Schwartz, will present this portion of our argument.
The last point to be demonstrated, i.e. that the Libyan requests
should be denied because the Security Council is actively seized with the
issue, will be presented by Deputy Legal Adviser Alan Kreczko. I will
conclude the United States argument with a brief statement.
•
0045c/CR4/T4/EDW/mj~-----
--------------------------------------~-----------------
- 17 -
Before turning to these legal arguments, I would aks the Court to
allow Mr. Kreczko to present the factual context in which the Libyan
application has been filed.
THEACTINGPRESIDENT:Thank you Mr. Williamson, Mr. Kreczko has the
floor.
II. FACTOAL BACKGROURD
·Thank you Mr. President and Members of the Court,
It is an honour to appear for the first time before this Court. I
:will diseuse the facts of this case in some detail in order to
.demonstrate why the United States decided that this matter could not be
handled as a simple criminal matter under the Montreal Convention, but
instead needed to be referred to the Security Council as a matter of
international terrorism.
The Bombing of Pan Am 103
As the Solicitor General for Scotland described in detail yesterday,
on 21 December 1988, Pan AmFlight 103, and American-registered carrier,
exploded over Lockerbie, Scotland. 270 people were killed: 11 residents
of the Scottish town of Lockerbie and 259 passengers and crew, including
189 nationale of the United States of America. Also among the murdered
passengers were nationale of the United Kingdom, Sweden, France, Italy,
Japan, India, Switzerland, Canada, Israel, Argentina, Ireland, Hungary,
South Africa, Germany, Spain, Jamaica, the Philipines, Belgium, Trinidad
and Bolivia. The victime included students, familles, business persona
and government officiais. The United Nations itself lost a most
distinguished official, Mr. Bernt Carlsson, the Commissioner for Namibia.
0045c/CR4/T4/EDW/mj - 18
-
It was immediately apparent that the explosion was the result of
terrorism. The act has ben universally recognized as among the most
egregious terrorist atrocities. It constituted a blatant violation of
the fundamental human right to life. On 30 December 1988 the President
of the Security Council issued a statement on behalf of the Council which •
expressed outrage and strongly condemned the bombing of Pan Am 103 and
called on all-S~tes to assist in the prosecution of those responsible
for this criminal act, On 10 July 1990 the Heads of State of seven
industrialized countries published a declaration noting with deep concern
the bombing of Pan Am 103 and UTAFlight 772, and demanding that those
governments which provide support to terroriste end auch support
immediately (Document 1).
Criminal Investigation and Findings
Immediately following the bombing of Pan Am 103, the largest and
most thorough criminal investigation was launcbed. lt involved hundreds
of investigators and the cooperation of more than 25 States.
After three years of investigation, the United States, witb the
United Kingdom, bad amassed evidence to justify application to their
judicial systems for indictments and warrants for the arrest of two
Libyan nationale Abdul Basset Ali Al-Megrahi, a senior Libyan
intellegence official, and Lamen ~alifa Fhimah, the former manager of
the Libyan Arab Airlines office in Malta. The evidence directly links
the two Libyan officiais to the suitcase containing the bomb and to its
insertion into the baggage system leading to Pan Am 103. The evidence
also links Al Megrahi to the Swiss company that manufactured the
sophisticated electronic timers used in the Pan Am 103 bombing.
0045c/CR4/T4/EDW/mj - 19 -
On 14 November 1991, a United Stated grand jury found the evidence
sufficient to indict the two Libyan officiais on multiple charges which
include conspiracy and murder. Details of the charges are set out in the
'
,annex to Security Council document S/23317.
I would emphasize here that an indictment in the United- States is
not a finding of guilt, but of sufficient cause to arrest. When the two
accused are surrendered to the United States, they will be tried in a
lsystem which not only espouses, but also respects, fundamental human
rights. The accused will be entitled to counsel and to a jury trial open
,to the public, will be protected against self-incrimination and will be
1
'presumed innocent unti1 proved guilty beyond a reasonable doubt.
The Bombing oE UTA Flight 112
While the investigation into the bombing of Pan Am103 was ongoing,
on 19 September 1989, the French aircraft UTAFlight 772 expioded over
south eastern Niger. 171 passengers and crew members were killed in the
incident, including seven Americans and nationale of Algeria, Cameroon,
'Canada, Central African Republic, Chad, Congo, France, Greece, I taly,
Mali, Morocco, Senegal, Switzerland, the United Kingdom and Zaire.
On 30 October 1991, a French magistrate issued arrest warrants
against four named Libyan officiais for their role in the bombing of UTA
Flight 772, and sought two other senior Libyan officiais for questioning.
Libyan Involvement
-- The United States determined that the Pan Am1033 bombing was a
coordinated effort by Libyan officiais at the highest leve!, and part of
a long pattern of Libyan behaviour.
0045c/CR4/T4/EDW/mj - 20 -
Wewere convinced of Libyan responsibility based on Al-Megrahi's
central and continuing role in Libyan intelligence operations and on his
close association with Libyan Government officiais who have been
implicated in other terrorist acts.
0045c/CR4/T4/EDW/mj - 21 -
.
Moreover, at the seene of the plane's wreekage, investigators found
fragments of a circuit board eonelusively i.dentified as having come from
one of only 20 digital timers manufaetured by a Swiss firm exelusively
:
for the Libyan Government.
Further, the bombing fit into a pattern of Libyan terrorism. The
United States is on publie record of its conviction that Libya was
involved in such acta of terrorism as the assassination in 1980 of a
Libyan dissident in Italy; the 1985 attacks on the Rome and Vienna
airports that killed 19 people; the 1986 bombing of the LaBelle
discotheque in West Berlin; and a 1988 attack on the Greek eruise ship
The City oE Paros. Wewould be pleased to provide the Court additional
information on these and other examples of Libyan-supported terrorism.
The United States is not alone in its conclusion that Libya was
involved in these and other terrorist acta. A number of other States
have taken action against Libya because of its support for terrorism. In
March 1990, the Government of Ethiopia expelled two Libyan diplomate
accused of planting a bomb that exploded in the Hilton Hotel in Addis
Ababa. In response to evidence of Libya's invo1vement in the Labelle
Disco bombing, the Foreign Ministers of the 12 European Community (EC)
countries, meeting in emergency session in The Hague on 21 April 1986,
agreed that each of the 12 countries would reduce the number of Libyan
diplomate accredited to it, restrict the number of Libyans in Western
Europe, tighten visa requirements for Libyans, and keep Libyans in their
countries under close surveillance. ln subsequent weeks the European
... Community Governments eut off military sales to Libya and prevented their
skilled nationale from servicing Libyan equipment. They expelled over
lOO Libyan diplomate and signifieant1y reduced economie and commercial
ties to Libya.
0046e/CR/4/T4/mcs - 22 -
Mr. President, we bring this background to the attention of the
Court not to debate it with Libya, but to explain why the United States
did not treat the indictment of two .individuals simply as a matter of
criminal activity. In our view, Libya had already established a clear
pattern of publicly denouncing terrorism while simultaneously supporting
it.
Requests to Libya
On 21 November 1991, the United States transmitted to Libya, through
its protecting power, copies of the grand jury indictment describing in
detail the charges and evidence against the two Libyan officials. Along
with the indictment, a U.S. cover note was transmitted which stated:
"As part of an acceptable Libyan response, the Government
of the United States demanda that the Government of Libya
transfer Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah
to the United States, in order to stand trial on the charges
contained in the indictment." (Document 2.)
On 27 November 1991, the Libyan Foreign Ministry acknowledged
receipt of the document and stated it had translated the document and
transmitted it to the Libyan Justice Ministry for examination and action
(Document 2).
That same day, the American, British and French Governments in
separate and joint statements called upon Libya to comply with requests
already described to the Court, including the demand that Libya
concretely and definitively commit itself to cease all forma of terrorist
action and all assistance to terrorist groups {S/23306, S/23307, S/23308
and S/23309). The Government of France's explicit endorsement of the
U.S. demanda rebuts the inference, which counsel for Libya sought to
create yesterday, that France may have thought improper the u.s. and U.K.
request that the individuals be surrendered.
0046c/CR/4/T4/mes - 23 ~
The United States goes to the Security Council
In the face of the continuing Libyan denia! of responsibility and
refusa! to turn over the accused, the United States consulted with other
countries. On the basis of those consultations, the United States
decided to seek collective action in the Security Council to confront the
threat to international peace and security represented by the two
bombings of civil aircraft and Libya's continued sponsorship of
international terrorism.
To repeat, the United States saw the fundamental question posed by
the bombing of Pan-Am 103 as how to respond to Libya's support for
international terrorism. The United States did not, however, act
unilaterally on its determination. Instead it sought a collective
response in the Security Council.
Libya's communications to the Security Council
However, even before the United States brought the issue to the
Security Council, Libya bad been putting its case directly to the
Security Council.
Libya advanced to the Council that the issue was a narrow on.e of
4ll· establishing individual responsibility for a criminal act. Libya pled
its case in severa! letters sent to the United Nations Secretary-General
between 17 November 1991 and 18 January 1992:
Its 1etter of 17 November 1991 (Annex to S/23226) categorically
denied any involvement with the Pan-Am 103 bombing or that the Libyan
authorities bad any knowledge of its perpetrators.
Its letter of 20 November 1991 (Annex to S/23416) informed the
.. Council that it bad appointed a judge to inquire into the accusations,
and bad requested that the United States and United Kingdom nominate
lawyers to monitor the fairness and propriety of the inquiry.
0046c/CR/4/T4/mcs - 24 -
Its letter of 8 January 1992 (Annex to S/23396) stated that the two
judges appointed to conduct the inquiry had contacted the competent
judicial authorities of the United States, the United Kingdom and France,
which refused to respond to the judges' requests for the records of the
investigation.
Its letter of 17 January 1992 (Annex to S/23436), transmitted a copy
of the resolution adopted by the Council of the Arab League, inter - i
alia, urging the Security Council to resolve the conflict by
negotiation, mediation and judicial settlement under Article 33 of the
United Nations Charter.
Finally, its letter of 18 January 1992 (S/23441) stated that its
examining magistrate had instituted judicial procedures to ascertain the
presence of the two suspects, bad initiated a preliminary inquiry, and
had issued an order for the two suspects to be taken into custody on a
tentative basis. The note complained that the United States and France
had failed to co-operate with its investigations. The note ~ben, for the
first time, invoked the Montreal Convention, and referred to arbitration
under Article 14(1).
.
..
0046c/CR/4/T4/mcs \:.
- 25 -
UNSecuritt Council Action
On 21 January, the Security Council considered the matter. At that
time, it bad before !t all the cla!ms that L!bya is now making: that
L!bya should prosecute the individuals; that Libya could not extradite
the individuals; that the United States bad not co-operated with L!bya's
-
investigation; and that the matter should be handled pursuant to the
Montreal Convention and referred to arbitration or to the World Court.
The Security Council also bad before it the requests of the
United States, France and the United Kingdom., and the!r cla!m that the
bombings should be addressed by the Secur!ty Council as part of a larger
problem of international terrorism.
The Security Council's answer was clear. The Council unanimously
adopted resolution 731. -Mr. Williamson read from the preamble and
operat!ve paragraph 2.
In addi ti on t o ••dep1oring" Libya ' s respons e t o the United States and
United Kingdom and French requests, in resolution 731 the Council "urges
the Libyan Government to immediately provide a full and effective
response to those requests so as to contribute to the elimination of
international terrorism".
Though Libya bad placed the Montreal Convention before the Council,
resolution 731 makes no reference to it. Instead, resolution 731
endorses the requests of the three Governments. Resolution 73l"indicates
that the Security Council did not regard the Montreal Convention as
..
determining its decisions in controlling terrorism on the facts of the
present case.
The remarks of the State representatives to the Security Council
make it clear that they considered the issue to be the problem of
CCC!/CR4/T5/rw - 26 -
international terrorism. I will quete from three. (All quotations from
S/PV 3033.)
The Representative of India stated: ..
"I should stress here that the Council is specifically
addressing the question of international terrorism • • •
p. 94.) Mydelegation believes, therefore, that determined
Security Council action should send out the message that
terroriste, and international terroriste even more, will not
find safe haven anywhere but will be flushed out and punished
for their misdeeds." (P. 95.).
The Representative of Russia stated:
The threat constituted by acta of terrorism against civil
aviation to international security and stablity must
consolidate the efforts of the international community to
produce the necessary measure of reaction to this transnational
challenge. We supported the resolution just adopted by the
Security Council in the belief that this is a step in that
direction." (P. 89.)
The Representative or Venezuela stated:
""There can be no doubt that the decision taken unanimously
by the Security Council confera legitimacy and
representativeness on this resolution, the premise of which is
limited strictly to acts of terrorism involving State
participation.·· (P. 99.)
Resolution 731, therefore, marks a categorie rejection of the Libyan
position that the bombing of Pan Am 103 and UTA772 should be handled by
Libya as simply a criminal matter and makes clear instead the issue is
State supported terrorism. Counsel for Libya refera to the statements of
certain States prier to the adoption of resolution 731 that the
individuels might be tried in a third State rather than Libya or the
United States~ Counsel maintains that these statements indicated that ..
resolution 731 does not require surrender to the United States. We have
two commenta on this. First, the Security Council will decide what
constitutes a full and effective response to the United States demanda.
Second, the remarks of even these States indicates that the right
asserted here by Libya - trial in Libya - was not accptable.
CCC1/CR4/T5/rw - 27 -
Subsequent Developments
Resolution 731 requested the Secretary-GEneral to seek the
co-operation of the Libyan Government to provide a full and effective
response to the United States, British and French requests and stated
that the Council would remain seised of the matter.
In his first report on his efforts (S/23574, dated 11 February
1992) ,..the Secretary-General indicated that the Libyan Representat.ive bad
indicated a readiness to co-operate fully with the Security Council and
had invited the Secretary-General to create a mechanism for the
implementation of resolution 731. In his second report (S/23672, dated
3 March), the Secretary-General reported contradi.ctory commenta by Libyan
officiais on the possibility of handing over the Libyan citizens, and
concluded:
"From the foregoing, it will be seen that while
resolution 731 (1992) has not yet been complied with, there has
been a certain evolution in the position of the Libyan
authorities since the Secretary-General's earlier report of
11 February 1992."
The Secretary-General stated that the Counsel may wish to consider this
in deciding on its future course of action.
On 24 March, the Libyan Ambassador to the United Nations indicated
that the individuals would be surrendered to the Arab League. That
commitment, however, was unfulfilled, despite the visit by an Arab League
delegation to Tripoli on 25 March.
Faced with Libyan non-compliance, the United States has started
consultation with other members of the United Nations Security Council
c.
about a second Security Council resolution. On 20 March, the
.· United States Government indicated that it wou1d ask the Security Council
to impose limited, mandatory sanctions on Libya, including an air
1 embargo, until Libya complies with the provisions of resolution 731. The
1'
Council is currently considering this proposa!.
CCC1/CR4/T5/rw - 28 -
The record of the Security-Counc!l's efforts is important in severa!
respects:
- First, it ls relevant to Libya's reque.st for arbitration. Within three
days of Libya's request for arbitration, the Security Council had
adopted a recommendation for the resolution of the dispute. Three
weeks later, the Secretary-General reported that Libya was ready to
co-operate fully with the Security Council and had invited the
Secretary-General to create a mechanism for its implementation. After
another three weeks, the Secretary-General was reporting contradictory
Libyan positions but stating that the Libyan position was evolving.
- Second, the record demonstrates that the Security Council process is
still unfolding and, if Libyan statements could be taken at face value,
that the situation might be on its way to resolution.
- Third, and most clearly, the record shows that Libya failed to convince
the Security Council that Libyan prosecution of the individuals was
appropriate in the facts of this case. Libya now asks this Court to
protect that alleged "right".
Moreover, ostensibly to protect these claimed "'rights" Libya has
asked this Court to enjoin the United States from taking any action,
including going to the Security Council, to coerce Libya to surrender the
accused individuals and to ensure that no steps are taken that would
prejudice the rights of Libya with respect to these legal proceedipgs.
The Libyan request should be rejected for failure to meet the
criteria of Article 41 of the Court's Statute, concerning the indication
of provisional measures. The United States would demonstrate today that
for four independent reasons the circumstances do not call for the
indication of provisional measures.
CCC1/CR4/T5/rw - 29 -
- First, Security Couneil deeision-making ineluding United States
participation in it is not an appropriate abject of provisional
measures.
- Second, the Montreal Convention does not provide prima facie a possible
basis for jurisdicton.
Third, there is no urgent r!sk of irreparable damage to rights likely
to be adjudicated.
- Fourth, the Security Council remains actively seised of the situation.
CCC1/CR4/T5/rw - 30 -
The United States will demonstrate today that for four independent
reasons, the circumstances do not cal! for the indication of provisional
measures:
First, Security Council decision-maklng, including u.s.
participation in it, is not an appropriate abject of provisional measures.
Second, the Montreal Convention does not provide, prima Eacie, a
possible basie for jurisdiction.
Third, there is no urgent risk of irreparable damage to rights
likely to be adjudicated.
Fourth, the Security Council remains actively seized of the
situation.
Mr. President, with the Court's permission, Mr. Rashkow will present
our views on the first proposition, that Security Council decislon-making
ls not an appropriate object of provisional measures. Thank you.
The ACTINGPRESIDENT: Thank you Mr. Kreczko. The Court would like
to give the floor to Mr. Rashkow.
Mr. RASHKOW:Thank you Mr. President. Before I begin, I would ·Hke
to say what a great privilege and honour it is for me today to represent
my Government before this Court.
Mr. President, Members of the Court, may it please the Court.
In its Request for provisional measures Libya asks the Court to
enjoin the United States from taklng any action against Libya_calculated
to coerce or campel Libya to surrender the accused indivlduals to any
jurisdiction outside of Libya and to ensure that no steps are taken that ..
would prejudice in any way the rights of Libya with respect to the
-.
legal proceedlngs that are the subject of Libya's Application.
(Request p. 3.)
0048c/CR4/T6/rmcb - 31 -
Until yesterday, my Government was at a losa to understand exactly
what Libya meant by these sweeping and vague -requests. Quite frankly, we
did not believe that Libya intended to request the Court to interfere
with the exercise by the Security Council of its primary responsibility
for the maintenance of international peace and security, including the
authority of the Council to impose economie or other sanctions.
Nonetheless, as we learned yesterday morning, ·that is exactly what
Libya is proposing. As counsel for Libya has explained, Libya is asking
this Court to order the Respondents to refrain from undertaking any
initiative in the Security Council that would interfere with the
asserted rights of Libya.
Libya•s Request is formally framed in terms of the actions of the
United States and the United Kingdom. However, let there be no mistake,
this request is aimed directly at the Security Council. Indeed,
yesterday Libya's counsel severely criticized the Security Council for
adopting resolution 731 and contemplating a further resolution imposing
sanctions under Chapter VII of the Charter. Counsel for Libya critized
the Council in adopting resolution 731 as having paid insufficient
attention to procedures for the peaceful settlement of disputes, of
ignoring important elements of international law and of improperly
attempting to modify what Libya's counsel described as a code of
international law for the elimination of terrorism. In any event, an
order enjoining a Member of the Security Council from freely
participating in the vital work of the Council necessarily conflicts with
... the responsibilities of that Member and interferes with the work of the
.
Security Council.
;
0048c/CR4/T6/rmcb ..- - - - - - - - - - - ~
- 32 -
Not surprisingly, Libya has offered no support for this
extraordinary proposa!. As a review of the Charter and the practice of
this Court demonstrates, auch a proposa! is entirely contrary to the
system established under the Charter for dealing with threats to
international peace and security.
Pursuant to Article 24, the Security Council has primary
responsibility for the maintenance of.international peace and security.
The special responslbility of the Council in auch matters was
recognized in the very first case in which this Court was called upon to
consider a matter being addressed simultaneously by both bodies. In the
Agean Sea case, where the Court incorporated the substance of a
Security Council resolution on the matter before the Court into its arder
on interim measures {Agean Sea Continental ShelE. Interim Protection.
Order of 11 September 1976, I.C.J. Reports 1976 1 p. 12), Judge Tarazl,
ln his concurring Opinion asserted that
"One may content oneself with the affirmation that·, by
virtue of the Charter, the Security Council bears essential
responsibility for the maintenance of peace and security"
(I.C.J. Reports 1976, p. 33).
Subsequently, in the case Nicaragua v. United States, while
affirmlng the purely judicial function that the Court may perform in
regard to a matter that is simu1taneously before the Council, the Court
emphasized the primary responsibility of the Council (under Article 24)
for the maintenance of international peace and security (Mîlitary and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America). Jurisdiction and Admissibility. Judgement,
..
I.C.J. Reports 1984, p, 434). •
0048c/CR4/T6/rmcb - 33 -
Under Article 2 of the Charter, Libya, as a Member of the
United Nations, has agreed to assist the United Nations in any action it
takes in accordance with the Charter (Article 2(5)). Moreover, pursuant
to Article 24, Member States expressly agree that in carrying out its
duties to maintain peace and security, the Council acta on behalf of its
members.
Having agreed, under Article 24, that the Security Council, in
carrying out its primary responsibility for maintaining international
peace and security, acta on its behalf, Libya cannat be heard to ask this
41f· Court to enjoin the Unites States, or other Members of the Council, from
fulfilling this fundamental responsibility under the Charter.
Apparently, Libya wlshes to suggest that paragraph 3 of Article 36
of the Charter creates an affirmative duty on the Council to refer the
present matter to the Court. Article 36 provides that the Security
Council may, at any stage of a dispute or situation that is likely to
endanger the maintenance of international peace and security; recommend
appropriate procedures or methode of adjustment. Counsel for Libya has
referred to the third paragraph of Article 36, which provides that the
Council should take into consideration that legal disputes should, as a
general rule, be referred by the parties to the Court. Of course, this
provision requires no such decision by the Counci1. Moreover, as
counsel for Llbya has observed, the Security Councll had before it, when
it adopted resolution 731, Libya's argument that this matter should be
addressed to the Court and not to the Councll. The adoption of
resolution 731, by a unanimous vote, representa the considered decision
of the Council as to the appropriate measures to take in the
circumstances.
0048c/CR4/T6/rmcb - 34 -
Mr. President, the provisional measures requested by Libya would
enjoin the United States from bringing any matter relating to
jurisdiction over the individuals accused of participating in the bombing
of Pan Am 103 to the Council, for action by the Council under Chapter 7
of the Charter. Onder Article 35, any member of the United Nations may
bring any dispute or any situation of the kind referred to in Article 34
to the attention of the Security Council or the General Assembly.
Libya, by its request for provisional measures, would have this
Court deprive the United States of its right under the Charter to take
the matter under consideration today to the Council, in direct
contravention of Article 35 of the Charter.
Conceivably, Libya is also asking the Court to order the
United States to abstain from speaking or even voting in the Council on
sucb a matter, notwithstanding its right and responsibility under the
Charter to do so.
Counsel for Libya analyzed the questions of the competence of both
the Security Council and the Court simultaneously to address the same
matter and the extent to which the conclusion arrived at by one organ can
influence the examination of the same matter by the other organ.
lt
(/
0048c/CR4/T6/rmcbr---------------------------------------------------------------~ ~--~-
- 35 -
Mr. President, I submit that the authorities advanced by counsel for
Libya do not support the conclusion that the ·Court has the power to
enjoin members of the Security Council from fulfilling their fundamental
responsibility under the Charter in regard to threats to international
peace and security.
Much of the analysis presented by counsel for Libya addresses the
authority of the Court to exercise its judicial function in regard to a
matter simultaneously before the Court and the Council. The United
States agrees that the Council's functions are of à political nature and
~ the Court exercises purely judicial functions, the United States also
agrees that the Court and the Council may properly exercise their
respective functions simultaneously in regard to the same matter. lt is
difficult to see, however, how the fact that two organs have independent
competences can be twisted into an argument that permits one organ to
interfere in the work of the other. I would think Security Council would
be astounded at the proposition that this Court could enjoin-a State from
going to the Council or from participating in the work of the Council as
a member of the Council.
Counsel for Libya appears to argue that the Court has the power to
interfere with the work of the Council in arder to promote the peaceful
settlement of disputes, pointedly remarking in the course of that
discussion that recourse to the Court is not to be considered an
unfriendly act. These remarks could be construed to suggest that
recourse to the Security Council, as a means for resolving a dispute or
situation, is not a friendly act. If that is Libya's view, my government
and, we believe, the international community would strongly disagree.
Recourse to the Security Council is no more an "unfriendly act" than
recourse to this Court.
0049c/CR4/I7/mj - 36 -
Mr. President, I ask the Court to remember that in Resolution 731
the Security Council affirmed that acts of international terrorism have a
deleterious effect on international relations and jeopardize the security
of States. The Council requested the Secretary General to undertake
certain actions on its behalf to obtain Libya•s compliance with the
requests of the United States, United Kingdom and France as described in
the Resolution. The Council decided it would remain seized of the
situation and is currently considering that situation.
Pursuant to Article 39, the Security Council bas responsibility to
determine the existence of any threat to peace and to make
recommendations ta decide what measures to be taken ln accordance with
Articles 41 and 42 to maintain international peace and security.
Article 41 autborizes the Court to decide what measures not involving the
use of force are to be employed to give effect to its decisions. Such
measures may include complete or partial interruption of economie and of
rail, sea, air and ether means of communication and the severance of
diplomatie relations.
Mr. President, it is clear that neither the Charter nor the practiee
of the Court provides a basis for interfering with the exercise by the
Council of its primary responsibility for maintaining international peace
and security. It is equally clear that the Montreal Convention does not,
and could not, provide a basis for auch action by this Court in this
matter.
Mr. President, that concludes my presentation. With your
permission, I would like to call on my colleague, Mr. Brower, who will
diseuse the failure of Libya to establish the jurisdiction of the Court
to indicate the request of provisional measures.
0049c/CR4/T7/mj - 37 -
The ACTINGPRESIDENT: Thank you Mr. Rasbkow, next speaker is
Mr. B:rower.
Mr. BROWER:
IV. LIBYA'S REQUESTDOES NOT MEET THE COURT' S CRITERIA FOR THE
• IRDICATIOB OF PROVISIOHAM LKASURES
Mr. President and Members of the Court:
It is indeed a great honour for me to appear before the Court as
counsel and advocate for my country in this proceeding.
I may say also that I could not have imagined this development when
20 years ago last autumn I had the privilege of heading the o.s.
delegation at the diplomatie conference in Montreal that fashioned the
Convention which brings us here this week.
Onder Article 41 of the Statute of the Court, the Court, of course,
has "the power to indicate, if it considera that circumstances so
require, any provisional measures which ought to be taken to preserve the
respective rights of either party".
The Court itself has identified two criteria which must be met
before it will indicate provisional measures.
First, the provisions of the intrument must, prima Eacie,
provide a basis for jurisdiction;
- Second, provisional measures must be necessary to preserve rights
likely to be adjudicated from urgent, irreparable harm.
The Libyan request, in the sumbission of the United States, fails to
~ meet either of these criteria. I will address the issue of jurisdiction
and following that Mr. Schwartz will address the second issue regarding
urgency and irreparable harm.
0049c/CR4/T7/mj - 38 -
A. THE IŒQUESTED PJlOVISIORAL MBASURES SBOULD lfOT BE IBDICA!'BD BEC.AUSE
LIBYA BAS BOT PRESER'l'EDA PRIMA FACIE CASE TilH THE PROVISIONS OF THE
MORTREAL CORVEBTIOB PROVIDE A POSSIBLE RASIS FOR JURISDICTIOlf
Specifieally, I intend to elaborate the proposition that the Court
"ought not to" indicate provisional measures as requested by the
Applicant inaamuch as "the provisions invoked by the Applieant [do notJ '
appear, prima facie, to afford a beais on which the jurisdiction of the
Court might b.e founded" (Passage through the Great Belt (Finland v.
Denmark), I.C.J. Reports 1991, p. 15).
In summary, the position of my Government is that prima facie this
Court lacks jurisdiction because Article 14(1) of the Montreal
Convention, which I may remind the Court, forma the sole basis of
jurisdiction upon which the Applicant relies here, on its face provides
that the same jurisdiction cannat attach unless and tmtil six months have
elapsed following a request for arbitration, without the parties having
been able to agree on the organisation of that arbitration, whereas the
Application bere, of course, was filed but 45 days - one and-a-half
months - after Libya bad (in the words of its Application (p. 4))
"invited the United States to agree to arbitration in aeeordance with
Article 14(1)". Further, in our view, even were the six-month waiting
period subject to being disregarded, as the Applicant contends, in the
1
event that the putative respondent has expressely refused to arbitrate,
no allegation is made by the Applicant here that would support auch a
conclusion in this case.
* *' *
Mr. President and Members of the Court, it is established beyond
cavil in the decisions of the Court that in order to indicate provisional
measures under Article 41 of the Statute, the Court "need not ••• finally
0049c/CR4/T7/mj,---------,
- 39 -
satisfy itself that it has jurisdiction on the merita of the case"
(Passage through the Great Belt (Finland v. Denmark), Provisional
Measures, I.C.J. Reports 1991, p. 15). Nonetheless, it is equally well
established that the Court "ought not to indicate such measures unless
the provisions involted by the Applicant appear, prima Eacie 1 to afford
a basie on which the jurisdiction of the Court might be founded" (id.) •
•
e.
-'.
0049c/CR4/T7/mj - 40 -
These words are taken from the Court's most recent decision on auch
a matter and are precisely the words commonly used by the Court on this
point in its Orders on requests for provisional measures, beginning with
the Order in the Fisheries Jurisdiction case.
In practice, in all of those cases the Court waa called upon to '
determine whether the instruments relied upon by the applicant to
establish the-jurisdiction of the Court prima Eacie conferred such
jurisdiction on the Court. Thus in the United States Diplomatie and
Consular Staff in Tehran case, for example, the Court ruled that it was:
"manifeat from the information before the Court and from the terms t4f
of ••• the two protocole that the provisions of these Articles
furnish a basis on which the jurisdiction of the Court might be
founded ••• " (I.C.J. Reports 1919, p. 14),
This practice is also well described in the statement of Judge
Sir Bersch Lauterpacht, in his separate opinion in the Interhandel case:
"The Court may properly act under the terms of Article 41
provided that there is in existence an instrument auch as a
declaration of acceptance of the optional clause, emanating from the
Parties to the dispute, which prima Eacie confera jurisdiction
upon the Court and which incorporates no reservation obviously
excluding its jurisdiction." (I.C.J. Reports 1951, p. 119,
e.JQphasis added. )
Thus, the plain language of the instruments invoked is taken by the Court
at face value and the Court to date has always resisted attempts to go
behind them at the provisional measures stage.
In the present proceedings, however, I think it is important to
stress that the Court is confronted by précisely the converse
circumstance: Article 14 of the Montreal Convention, the sole basis of
supposed jurisdiction, prima Eacie precludes jurisdiction under the
circumstances of this case, and it is the Applicant who, in order to
sustain jurisdiction, invites the Court to go behind that Article. I
remind the Court that Article 14(1) provides as follows:
0050c/CR4/T8/ah - 41 -
"Any dispute between two or more èontracting States concerning
the interpretation or application of this Convention which eannot 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."
;
Note well the stages through which dispute settlement must be
addressed, progressively: settlement through negotiation first; then,
if that cannet be effected, the dispute shall be submitted to
arbitration, which, of course, thus is exclusive; and only if
organization of the arbitration is not completed within six months from
the date of the request for arbitration is it contemplated that a party
may refer the dispute to the Court.
Thus the plain language of Article 14(1) unequivocally provides a
six-month period in which to organize an arbitration before this Court's
jurisdiction may be invoked. The requirement that arbitration be
requested, and that six months have passed, is not a mere formality, it
is a clear prerequisite to the Court's jurisdiction.
I submit that the logic behind the adoption of such a six-months'
provision further supports its strict application. The automatic right,
4ll following a six-month waiting period, to come to this Court patently is
designed to prevent fustration by dilatory conduct of the basic provision
for settlement of disputes. This studied reinforcement of the right to
attempt to organize an arbitration inferentially enhances that right's
entitlement to respect. Were this Court, however, within the prescribed
six-month period, to enter into an examination of the conduct of a party
requested to arbitrate, as the Applicant urges, the exclusive character
.. of the prescribed arbitration necessarily would be impaired. A party,
0050c/CR4/T8/ah - 42
once having requested arbitration, could be tempted too readily to shift
to invocation of the jurisdiction of this Court, which, after all, the
parties themselves bad agreed, in Article 14(1), was to be engaged only
as a last resort.
It must be remembered always that the Applicant itself bas consented
to a treaty which expressly contemplated that disputes "concerning the
interpretation or application" thereof might not be formally confronted
until a period of six months bad passed and a tribunal bad been
organized. This delay necessarily included the possibility that for the
same period of six months no tribunal would be available to entertain a
request for indication of provisional measures. This is the agreement of
the Montreal Convention. Having chosen its course, the Applicant must
now be required, by this Court, to adhere to it.
I would suggest that, against this background, the solicitousness
this Court bas consistently, and I might add, appropriately, demonstrated
to protect the integrity of the arbitral process, once the pàrties have
agreed to it, notably in the Ambatielos case, and more recently in the
Maritime Delimitation between Guinea-Bissau and Senegal arbitral award
case, should lead the Court to reject the suggestion of the Applicant
that the Court disregard the six-month provision of Article 14(1).
•
In light of this analysis it should not be surprising that the
judges of this Court, whose opinions have expressed a view on this issue,
have agreed that a convention with this form of compromissory clause does
require that a period of six months elapse before jurisdiction can arise.
0050c/CR4/T8/ah - 43 -
Thus, as was noted yesterday afternoon, the late President of this
court, Judge Nagendra Singh, referring to a parallel clause in the
1973 convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persona, stated in the case between
;.· Nicaragua and ehe Unieed seaees that "a lapse of six monehs from the
date of the request for arbitration (is] is a condition precedene for
referring the dispute to the International Court of Justice" (Separate
opinion of Judge Singh, I.C.J. Reports 1984, p. 446 (emphasis
added)). In addition, Judge Morozov stated in the Hoseages case that
recourse to the Court is available under the same clause and I quete,
again, "only if the ether party in the course of six months has not
accepted a reguest to organize an arbitraeion" (Separate Opinion of
Judge Morozov, I.C.J. Reports 1989, p. 53 (emphasis added)).
In the case before the Court, Libya of course filed its
Application on March 3rd which, I have noted, was just 45 days after
it had, in its words "invited the United States to agree to
arbitration" on January 18 - this clearly fails to meet the six month '
obligatory prerequisite.
I submit that Libya has implicity acknowledged the prima facie
bar tc jurisidiction posed by the six month requirement of
Article 14(1). The Permanent Representative of Libya to the United
Nations in New York in his statement to the Security Council session
of January 21, 1992 that, as we know, culminated in adoption of
..
CR4/T9-afm - 44 -
Resolution 731, expresely referred to Article 14 of the Montreal
convention and made the following statement which was recited in part
yesterday. I quete:
"Today, before the Council, my country requests that
beth those countries [the Respondents here] be invited to
enter promptly into negotiations with Libya on proceedings ·;,
leading to arbitration and an arbitration panel. Tc ensure
the speedy settlement of the dispute, we consider that a
short and fixed deadline be set for those proceedinqs, after
which, if no agreement is reached on arbitration, the matter
would be brought before the International Court of Justice."
The Permanent Representative continued:
"My country expresses its willingness to conclude
immediately, with any of the parties concerned, an ad hoc
agreement to have recourse to the International Court of
Justice as soon as the short deadline for reaching agreement
expires .•• " (UN Doc. S\PV.3033 (1992), p. 23.)
Clearly this suggestion of the Libyan Permanent Representative for
such a "short and fixed deadline", after which one could go to the
Court, muet be premised - there is no ether possibility - must be
premised on the assumption that in the absence thereof Libya could not
proceed here prier tc the passage of six menthe following its
invitation to arbitrate.
I submit that Libya further acknowledges the prima facie ban
•
posed by the six rnonth proviso of Article 14(1) when it asks this
Court tc determine that it is inapplicable and does sc on the basie of
a complex, who1ly speculative, I should say tendentious, and
inaccurate reading of United States statements and actions. ·rn doing
CR4/T9-afm - 45 -
so, of coUrse, the Applicant asks the court tc do what the Court has
steadfastly declined to do in the past at the provisional measures
stage, and to go behind the instrumen.t itself .
.;
It should be noted that in urging that the six month proviso of
Article 14(1) be disregarded by the Court, Libya has restricted
itself, however, to one argument and one argument alone. It urges
this court to infer that the United States effectively rejected the
Libyan invitation to arbitration and it first does so by citing in its
Application the failure of the United States "to respond formally" to
Libya's proposa! (Application, p. 4) and "the total lack of any
positive response" (ibid., pp. 6-7) to that proposa! by the United
States. The fact that the United States did not formally respond one
way or the ether within 45 days of Libya's invitation, however, can in
no way be construed as a refusa! to arbitrate.
This is especially so given the surrounding undisputed facts of
Libya's actions which, as the presentation by my colleague Mr. Kreczko
has intimated, were sometimes ambiguous, often contradictory and, we
• submit, patently opportunistic. Libya's unrefined invitation to
arbitration came, of course, on January 18. This was fully two months
after the Respondents here had called for the surrender of the two
Libyan nationale and the Court will by now have well understood that
it came precisely on the eve of, and I suggest in anticipation of, the
security Council's adoption January 21 of Resolution 731.
,,
..
CR4/T9-afm - 46 -
Following adoption of the Resolution, namely on February 11,
1992 - lese than a month later - the Secretary-Qeneral, acting as
requested by that Resolution, reported that Libya had indicated that a
mechanism ehould be created for the implementation of Resolution 731,
which itself, of course, related also in part to the two nationale.
The Secretary-General reported also that Libya had expressed its
readiness -to cooperate fully with the Security Council and with the
Sec.retary-General, and that Libya bad invited the secretary-General to
call upon the parties to set up the mecha.nism for the implementation
of Resolution 731 (UN Doc. S\23574 (1992)).
Then, following still more diplomatie activity, the
Secretary-General reported on March 3 that in the meantime Libyan
authorities appeared prepared, among ether things, to consider
surrendering the two suspects to French authorities or to the
authorities of third countries, referring specifically to Malta or any
Arab country, once exieting constitutional hurdles would be overcome.
Attached to the report of the Secretary-General were two letters from
the Foreign Minister of Libya regarding that matter. Those letters
themselves contained ether proposais for addressing the requeets •
contained in Resolution 731 regarding specifically the surrender of
the two Libyan suspects, as well as ether matters. For example, the
letters proposed mechanisms for.involving the United Nations in
determining whether there is sufficient evidence to turn the suspects
over to a third party for trial. In concluding his report of March 3,
the Secretary-Genera.l stated, and I quete, "it will be seen that while
CR4/T9-afm - 47 -
Resolution 731 has not yet been complied with, there bad been a
certain evolution in the position of the Libyan authorities since the
last report" (UN Doc. S\23672, p. 3). It was that very day, of
course, March 3 that the present Application was filed with the
Registrar of this Court.
As the Court will readily appreciate, Libya•s position in these
proceedings thus is that the six month proviso of Article 14(1) of the
Montreal Convention could apply only if, and only to the extent that,
the United States actively negotiated over an arbitration regime with
Libya at the same time beth parties were dealing with the
Secretary-General in regard to Resolution 731 and including the two
Libyan nationale.
CR4/T9-afm - 48 -
It should be remarked that in the midst of all of these events, at
no time following the adoption of resolution·731 on 21 January 1992, at
no time did Libya, either through a protecting power or through the
Seeretary-General, ever renew its "invitation" to the United States for
arbitration under the Montreal Convention or make any proposais l
whatsoever to the United States for the organization of a possible
arbitration •. Onder these circumstances it simply cannat, in our
submission, be inferred that the United States definitively refused
arbitration, or that the parties would ·be unable to agree on the
organization of an arbitration within six months (assuming one had been
properly requested), or that the United States had in any manner
whatsoever waived its right to the six month period to which it is
entitled under Article 14(1) of the Convention and upon which it had
conditioned its consent to the Court's jurisdiction in becoming a party
to the Montreal Convention.
In an attempt, fina1ly, to portray the United States not as having
implicitly rejected arbitration but as having express1y rejected the
invitation to arbitration, Libya refera (Application, p. 4) to one
thing. That one thing is the statement of the United States made in the
-Security Council in conjunction with the adoption of resolution 731 on
•
21 January of this year. This statement of the United States Permanent
Representative was stressed yesterday both by Professer Brownlie and by
Professer Salmon, Professer Salmon charaeterized that statement at
page 46 of the text and I will now attempt to join the ranks of the
linguiste who have stood here yesterday, he described this, and the
French expression was "Ein de non-recevoir péremptoire", I might add
-.-
OOSlc/CR/4/Tl0-11/mes ------------- - - ~ ~ - - -
- 49 -
this was translated in the English as a "peremptory dismissal". That is
the linchpin of the case presented by Libya for disregard of the
six-month waiting period required by Article 14(1).
The statement to which Libya refere, however, does not even address
Libya•s proposa! to arbitrate under the Montreal Convention which, as we
know, had been advanced but a day or two prior to the adoption of
resolution 731. That statement was made upon the adoption of
resolution 731 and presented the official views of the United States
Government as to the nature and importance of resolution 731 as a whole.
When read in context, it is utterly clear that it addresses the role of
the Security Council in confronting what the Permanent Representative
described as the "extraordinary situation" of a State and its officiais
being implicated in terrorism, and the effects of such conduct on
international peace and security. The statement bears recitation and 1
therefore quote:
"The issue at band is not some difference of opinion or
approach that can be mediated or negotiated. lt is, as the
Security Council bas just recognized, conduct threatening to us
all, and directly a threat to international peace and
security. The mandate of the Security Council requires that
the Council squarely face its responsibilities in this case.
It must not be distracted by Libyan attempts to convert this
issue of international peace and security into one of bilateral
differences." (United. Nations Document S/PV. 3033, p. 79.)
I respectfully submit that the fact that this statement was indeed made
in a broad political context was confirmed in the statement made
yesterday morning by the last speaker for the Applicant. Mr. Suy made
the following statement with the indulgence of those wbose native
language I am about to employ, I will recite it in the French which is
the only official text available tous (at p. 22 of his text):
r....-.
•
OOSlc/CR/4/Tl0-11/mcs - 50 -
"La résolution 731 (1992) n'a pu obtenir l'unanimité que
parce que les membres y voyaient une manifestation d'une action
générale de l'ONU contre le terrorisme international d'ailleurs
parfaitement louable et en conformité avec la politique de la
Libye."
And it is in that context that the United States Permanent Representative
concluded:
"The resolution makes it clear that neither Libya nor
indeed any other State can seek to bide support for
interna~ion aerrorism behind traditional principles of
international law and State practice. The Council was faced in
this case with clear implications of Government involvement in
terrorism as well as the absence of an independent judiciary in
the implicated State. Faced with conduct of this nature, the
Council bad to act to deal with threats to international peace
and security stemming from extremely serious terrorist attacks,
and did so with firmness, dignity, determination and courage.
The Council's action thus sends the clearest signal that the
international comm.unity will not tolerate such conduct."
(Ibid., p. 80.)
*
In conclusion, Mr. President, and Members of the Court, let me
summarize as follows:
- Prima facie, Article 14(1) of the Montreal Convention requires
that a period of six months elapse following a request for
arbitration as a precondition to any jurisdiction of this Court.
-The Application here was filed but 45 days after Libya's •
"invitation" to the United States to arbitrate, however.
- Therefore, Article 14(1) does not "appear, prima facie, to afford
a basis on which the jurisdiction of the Court might :be founded".
- Particularly in light of the fact, as the Secretary-General noted,
that Libya's position was evolving, and in view of Libya's own
suggestions that a mechanism be established for the transfer of
..
the two accused, no allegation made here by the Applicant could .
OOSlc/CR/4/Tl0-11/mcs - 51 -
support a finding that any request for arbitration was rejected, or
that for any other reason it could be concluded definitively as of
3 March 1992, that the parties would be in the words of the
Convention "unable to agree on the organization of the arbitration"
within the required six months.
Therefore the Court "ought not to" indicate provisional measures as
requested by ~he Applicant.
I thank you, Mr. President and Members of the Court, for your kind
attention and I give the podium now to my colleague, Mr. Schwartz.
The ACTINGPRESIDENT: Thank you for your statement, Mr. Brower.
The Court will rise for a break of ten minutes. After that 1 give the
floor to Mr. Schwartz.
The Court adjourned from 11.45 a.m.to 12.05 p.m.
..
OOSlc/CR/4/Tl0-11/mcs - 52 -
The ACTINGPRESIDENT: Please be seated. Mr. Schwartz is the next
speaker.
Mr. SCHWARTZ:Thank you, Mr. President. It is ,indeed an honour to
appear before the Court today. I hope to be able to reward your courtesy
by helping to clarify one question posed by the request, whether the
provisions! measures sought are in fact urgently required to protect
rights likely to be adjudicated by the Court.
This is a question distinct from the Court's prima Eacie
jurisdiction. Libya's request must be denied, unless Libya can also
demonstrate that provisional measures are necessary to protect rights at
imminent risk of irreparable injury. It is our contention that Libya has
n.ot discharged this burden.
Intermim measures have been characterized by the Court as an
"exceptions!" power (Aegean Sea Continental ShelE,
I.C.J. Reports 1916, p, llj see also Passage through the Great Belt
(Finland v. Denmark). Provisiona1 Measures (Separate Opinion of
Judge Shahabuddeen), I.C.J. Reports 1991, p. 29). As Judge Lachs wrote
in the Aegean Sea Continental ShelE case, the Court "must take a
restrictive view of its powers in. dealing with a request for interim
--
measures" (Aegean Sea Continental ShelE (Separate Opinion oE
Judge Lachs). I.C.J. Reports 1976, p. 20). Such measures are more
exceptions! in international than in municipal law; as stated by two
distinguished former Members of this Court "they may easily -be considered
a scarcely tolerable interference in the affaira of a sovereign State".
Here I refer to the joint statement of Judges Winiarski and Badawi Pasha
in the Anglo-Iranian Oil Co. case (Anglo-Iranian Oil Co•• Interim
Protection. Ocder oE 5 July 1951 (Dissenting Opinion oE Judges Winiarski
and Badawi Pasha), I.C.J. Reports 1951, p. 97).
0052c/CR4/Tl2/ah .. ~~,.
- 53 -
With this concern in mind, the Court has refrained from indicating
interim measurea unless there is a demonstrated urgency to the request,
and the requested measures are necessary to preserve from irreparable
•
injury rights that are likely to be adjudicated.
1. The interim measures requested are not urgently needed
1 will first address the issue of urgency.
The Court has consistently held that a requesting State must
actually establish that it faces a serious possibility of irreparable
harm or prejudice to its rights, (case concerning Passage through the
Great Selt (Finland v. Denmark), I.C.J. Reports 2991, p. 16;
Frontier Dispute, Provisional Measures, Order of 20 January 1986,
I.C.J. Reports 1986, p. 8, 10; United States Diplomatie and Consular
Staff in Tehran, I.C.J. Reports 1919, p. 19; Nuclear Tests (Australia
v. France), Interim Protection, Order of 22 June 1973,
I.C.J. Reports 1973, p. 139; and Fisheries Jurisdiction (Federal
Republic of GerŒany v. Zeeland), Interim Protection, Order of 17 August
1972, I.C.J. Reports 1972). Central to this analysis is the question of
urgency. 1 recognize that counsel for Libya suggested to the contrary
yesterday, but the priority the Court's Rules assign to dealing with
provisional measures presupposes that there is a need to act urgently
(Rules of Court, Art. 74). So too do the Rules' allowanee for a request
to be made "at any time" (Rules of Court, Art. 73). In the case
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the Court's Order expressly
held that urgency was a "requirement" for provisional measures
•
(I.C.J. Reports 1984, p. 179).
,-
1
0052c/CR4/Tl2/ah - 54 ...:
The Court's recent decision in the Passage through the Great Belt
(Finland v. Denmark) is not-to the contrary. There the Court
perceived that Denmark's contested bridge could not obstruct Finland's
t
claimed right of passage prior to a final judgment, so there was clearly
no urgency to the request. There was no suggestion in the Court's
opinion that it intended to abandon its consistent jurisprudence that
interim measures are appropriate only to deal with actions that are
ongoing or expected to take place imminently. I refer in my written
transcript to the relevant cases (Sino-Belgian Treaty case, the
Anglo-Iranian 011 Co. case, the United States Diplomatie and Consular
StaEE in Tehran case, the Mllitary and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States oE America) case, the
Fisheries Jurisdiction cases and the Nuclear Tests cases.
Illustrative is the Trial of Pakistani Prisoners or War case, where the
Court declined to indicate provisional measures simply because Pakistan
requested a delay in the Court's consideration of the matter. The
requirement of urgency had not been met by the moving party (Trial or
Pakistani Prisoners oE War, Interim Protection, Order oE 13 July 1913~
I.C.J. Reports 1973 1 p. 330).
For Libya to prevail on its request, therefore, it must make a
•
convincing evidentiary showing of urgency, and not rest on mere
allegations-or speculation that some harm might occur. As previously
described, the United States has had some difficulty understanding what
imminent actions Libya is seeking to enjoin. In its written request,
Libya asserted that "the United States is threatening Libya with
impending economie sanctions and other actions, including the possibility
of recourse to the use of armed force", This was cited as justification
for considering its request as a matter of "extreme urgency" (Request,
0052c/CR4/Tl2/ah - 55 -
p. 3). Yesterday we he.ard from Libya's representatives about purported
United States threats to use force, but nothing about United States
sanctions. Instead, counsel referred to United States efforts in the
Security Council. We must assume, therefore, that Libya's submission
relies on the Council proceedings and the purported threat of force.
With respect to the Security Council proceedings, Libya's allegation
is correct. The United States and other countries are currently asking
the Council to impose sanctions for Libya'a failure to take concrete
steps to end its support for terrorism. However, as described by
Mr. Rashkow, action in the Council, including participation by member
States, ia not a proper subject of preliminary measures. Thus, although
there may be urgency regarding United States efforts in the Council,
there cannot be any legal harm to be avoided through provisional measures.
That leaves Libya•s assertion that the United States bas engaged in
a "progressively more explicit" campaign of threats to use military
force. The sole evidence cited consits of public statement& that no
options have been ruled in or out. There was also a reference yesterday
to the views of journalists and third country officials. With respect,
the Libyan charge is baseless. What the record shows is that the United
States bas been working peacefully in the Security Council on a concerted
response to Libyan support for terrorism. Resolution 731 and current
efforts on a new resolution evidence this.
Libya cites a 12 February 1992 Washington Times report of an
interview with Vice-President Quay1e as support for its charge. What
counsel for Libya omitted in its recitation from this article was the
following sentence: "The Vice-President would not specify what steps
0052c/CR4/Tl2/ah - 56 -
.
would be taken but emphasized he was not saying the United States was
contemplating military force." The Court will find this article as
item 40 in Libya•s document submission.
Libya cites two other newspaper reports for the proposition that
foreign governments may have believed United States military action
against Libya was possible. 1 cannat speak for other governments, but it
is of relevance that Libya, itself, seems to have taken a contrary view.
On 27 December 1991, Reuters reported that "Qaddafi, referring to
the U.S. air attack on Libya ordered in 1986 by President Ronald Reagan
and backed by British Prime Minister Margaret Thatcher, said he did not
believe their successors - George Bush and John Major - would launch auch
a strike."
On 9 January 1992, Reuters reported that "A [Libyan] Foreign
Ministry spokesman was quoted by the Libyan news agency JANAas saying
the country was confident the row with the West over alleged Libyan
involvement in terrorism would not reach the leve! of confrontation."
These reports are in the United States submission of documents, numbers 4
and S.
Libya bas not identified any developments since these reports -
other than Vice-President Quayle's statement, referred to a moment ago -
•
to explain why it now perceives a threat of force to obtain the two
suspects.
Libya has certainly shown nothing to bring this case within the
ecope of the Court's earlier Orders addressed to ongoing military
..
conflicts (United States Diplomatie and Consular StaEE in Tehran, •
I.C.J. Reports 1979 1 p. 7; Frontier Dispute case,
I.C.J. Reports 1986, p. 3; Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States oE America) case,
I.C.J. Reports 1984, p. 169).
0052c/CR4/Tl2/ah - 57 -
Apparently, therefore, it is not the imminence of United States
unilaterial action, military or otherwise, but the steady resolve of the
United Nations that has driven Libya to this proceeding.
;
2. The interim measures requested would not serve the Eunction of
preserving the rights of the parties
•·.
The second portion of ~ presentation addresses the requirement in
the Court's Statute that provisional measures must preserve the
respective rights of the parties. Apart from the lack of demonstrated
urgency, the Libyan request should be denied because it falls to satisfy
this fondamental standard. It is useful to recall, in this regard, that
Article 41 states that provisional measures are "to preserve the
respective rights of either party" (emphasis added).
-·..
0052c/CR4/Tl2/ah - 58 -
This wording shows a concern that the rights of both Parties are to be
considered. This is appropriate, given that-the objective of provisional
measures, as stated in the Anglo-Iranian Oil Company case is "to
;
preserve by auch measures the rights which may be subsequently adjudged
by the Court to belong either to the Applicant or the Respondent"
(Anglo-Iranian 011 Co., Interim Protection, Order oE 5 July 1951,
I.C.J. Reports 1951, p. 89; emphasis added). The fact that provisional
measures are decided before the Court has confirmed its jurisdiction or
adjudicated the merita reinforces the need for care in assessing the
effect of any measures on the rights of each Party.
Three considerations are essentiel in determining whether Libya's
proposed measures would satisfy this statutory standard: first, do the
measures, in fact, relate to rights claimed in the Application; second,
has Libya established the possible existence of the rights it claims
under the Montreal Convention, and, third, would the requested measures
preserve the rights of the United States?
(a) The measures do not relate to three of the Eour basic rights claimed
in the Application
With respect to the first criterion - whether the requested measures
relate to the rights claimed in the Application - it is necessary to
recall the judgments requested by Libya. First, it requests the Court to •
determine that Libya has complied with the Montreal Convention and that
the United States has not (Application, p. 9, IV (a), (b)). This
clearly cannet be a proper subject for provisional measures. When an
application seeks a declaration about a pre-existing legal situation, no
actions during the pendency of the proceeding could possibly prejudice
such a judgment (see Polish Agrarian ReEorm and German Minority, Order
oE 29 July 1933, P.C.I.J., Series AIB, No. SB, p. 175; Arbitral Award
0053c/CR4/Tl3/cw - 59 -
of 31 July 1989. Provisional Measures. Order of 2 March 1990,
I.C.J. Reports 1990, p. 64; Legal Status of the South-Eastern
Territory of Greenland, Orders of 2 and 3 august 2932,
P.C.I.J .• Series AIB. No. 48, p. 286-287).
Libya's Application next requests a two-part judgment that the
United States is under a legal obligation to cease its alleged breaches
of the Montreal Convention and "to cesse and desist ••• from the use of
any and all force or threats against Libya, includlng the threat of force
against Libya, and from all violations of the sovereignty, territorial
integrity, and the political independence of Libya" (Application,
p. 10). The latter part of this requested judgment, dealing broadly with
the use of force and "all violations" of Libya's sovereignty and
territorial integrity, cannot be the subject of provisions! measures. It
is patently outside the ecope of the compromissory clause relied upon by
Libya. Jurisdiction under Article 14 of the Montreal Convention, if it
existed, would relate only to disputes over the interpretation or
application of that convention. This would not provide a basis for
addressing, let alone enjoining, any and ail possible actions that might
comprise a threat or use of force or violate the sovereignty of a State.
And, as Judge Jiménez de Aréchaga observed in the Aegean Sea case:
1The Court's specifie power under Article 41 of the
Statute is directed to the preservation of rights 'sub-judice'
and does not consist in a police power over the maintenance of
international pesee ..... (Separate opinion of
Judge de Aréchaga, I.C.J. Reports 1976, p. 16.)
That leaves Libya's request for the Court to determine that the
United States has an obligation in the future to ce.ase certain alleged
breaches of the Montreal Convention. While this request conceivably
could be the subject of provisions! measures, it should be denied because
the Montreal Convention does not contain the "right" Libya is claiming
against the United States.
0053c/CR4/T13/cw - 60 -
(b) Libya has not established the possible existence oE the rights it
claims against the United States under the Montreal Convention
The United States appreciates that at this preliminary phase it is
impossible for the Court to enter into a detailed consideration of the
merita. It shoulè not be sufficient, however, for Libya simply to assert
'
the existence of alleged rights under the Montreal Convention. That
would mean the mere citation to treaty provisions, no matter how
baseless, woulè permit an applicant to use the Court as an instrument to
frustrate the exercise of rights held by other States. As
Judge Shahabudèeen observed in the Great Belt case: "It is improbable
that the Court is bound by a mere assertion of rights." (Separate
opinion of Juège Shahabuddeen, I.C.J. Reports 1991, p. 30.) Insteaè,
as he suggested, Libya must show the possible existence of the rights it
asserts (idem., p. 36).
When we examine Libya's assertion of rights, we see that neither the
text, the purpose, nor the history of the Montreal Convention supports
Libya's contention.
With respect to the text, I woulè draw the Court's attention to the
careful exposition provided yesterday by learned counsel for the
United Kingdom. Suffice it to say that Article 7 of the Convention,
which Libya's counsel told the Court lies at the heart of Libya's •
Application, nowhere mentions any rights.
Libya has apparently confused its duty to extradite or prosecute
suspects under this Article with the vested right .to be the only Party
to exercise jurisdiction. In fact, the Convention does not address how
to sort out which State should be given priority in exercising
jurisdiction in a given case. Under international law, severa! States
may have authority to prosecute - here, the States whose nationals were
0053c/CR4/Tl3/cw - 61 -
killed, the State of registry of the aireraft, the State where the
offenee oeeurred, and the State where the suspects are in custody. The
purpose of the prosecute or extradite formula is to ensure that one of
these States will exercise authority to prosecute, but it does not
dictate which. The negotiating history Ôf the Montreal Convention
confirma this (I ICAO, International Conference on Air Law, Minutes and
Documents, pp. 61-62 (1971)). There an effort to creste auch a priority
of jurisdiction failed, as did a similar effort in The Hague Hijacking
Convention negotiations (I ICAO, International Conference on Air Law,
Minutes and Documents, pp. 70-74 (1970)).
According to the Libyan interpretation, the Montreal Convention
nevertheless would implicitly vest in a State holding terroriste the sole
right to prosecute, even if that State was complicitous in the terrorist
act, in violation of Article X of the Convention. This would convert the
Convention's obligation to ensure effective prosecution into an absolute
right of a complicitous State to black prosecution. The current
situation demonstrates the transparent defects in the Libyan position.
The Security Council has found in resolution 731 that Libya's proposai to
carry out the criminal prosecution of the two suspects is deplorable. It
is untenable to propose that the Convention allows no other recourse.
Libya's Application and Request can be construed as going further,
to assert a second Montreal Convention right, again wholly implicit, to
stop other States from even seeking jurisdiction over the offenders by
peaceful means through the Security Council or otherwise. Libya provides
. no textual basis for this asserted right. Aside from labeling such
•
measures as ''illegal" (Request, p. 2, para. 3), Libya falls to identify
what it is referring to or what the source of illegality might be.
Certainly, nothing in the text or history of the Convention is addressed
ta any such alleged right.
0053c/CR4/Tl3/cw ~ 62 -
Interpreting the Convention to have these startling effects would be
very troubling and not only to the parties to this Convention. Its
provisions are similar to those in a wide array of modern treaties
dealing witb war crimes, terrorism, human rights and drug trafficking.
r
'
0053c/CR4/Tl3/cw - 63 -
Mr. SCHWARTZ: I list a number of them in the written transcript
for the court's reference (Fourth Geneva Convention of 1949,
75 U.N.T.S. 287; Hague Hijacking Convention of 1970, 22 UST 1641;
Internationally Protected Persona Convention of 1973,
' 1035 U.N.T.S. 167; Convention on the Physical Protection of Nuclear
Material of 1979, T.I.A.S. No. 11080; Hostages Convention of 1979,
T.I.A.S. No. 11081; Torture convention of 1984,
s. Treaty Doc. No. 100-20, 100th Cong., 2nd sees. (1988); convention
for the suppression of Unlawful Acta of Violence Against the Safety of
Maritime Navigation of 1988, s. Treaty Doc. No. 101-1, lOlst Cong.,
let Sess. (1989); United Nations Convention Against Illicit Traffic
in Narcotic Drugs and Psychotropic substances of 1988,
s. Doc. No. 101-4, lOlst Cong., let Sess. (1989)). The legal regime
these conventions create is one that assures effective prosecution -
not one that guarantees complicitous States a claim against all ether
parties tc insist upon exclusive jurisdiction.
To the best of our knowledge, no party to these Conventions have
ever claimed the rights Libya asserts. It can be assumed that, were
such implicit rights now tc be discovered, the Parties would have tc
reassess their adherence and new obstacles would be posed for those
Conventions that have not yet entered into force. The United States
would submit, therefore, .that Libya•s ~.·mer aessertion of rights"
cannet provide a foundation for the extraordinary remedy of
, . provisional measures.
CR4\T14-afm - 64 ~
c. The measures reguested wculd ccnflict directly with long-standing
scvereign rights cf the United States, and thereby radically
transfcrm the statue guo
I mentioned three criteria that should be employed in determining
;
whether proposed measures would preserve the respective rights cf the
parties. It has been seen that most cf the elements cf the judgment ,
requested in Libya•s Application wculd not be preserved by provisicnal
measures, and that Libya has not shown a credible possibility that the
Montreal convention confere the rights it wishes to preserve. That
leads tc the third criterion - whether the proposed measures would
preserve the rights of the United States.
As described by Mr. Rashkow, Libya's provisional measures request,
clarified during Libya's oral presentation, seeks tc block the United
States from invoking its right of recourse to the Security Council to
consider the question of Libya's continuing support for international
terrorism. But bringing to the council threats tc international peace
and security is a fundamental right of all parties under the
UN Charter. It wculd seem crystal clear, therefcre, that the measures
requested would not preserve the rights of the United States. Libya's
request could be understood to affect an even broader range of
US sovereign rights. Taken literally, the request would apply to any
lawful action by the United States where the subjective motivation was
to influence Libya's policy on whether to transfer the two suspects for
prosecution. On this reading, Libya's request would require the
•
••
CR4\Tl4-afm - 65 -
Court tc address virtually any action taken by the United States in
its relations with Libya during the pendency of_ the case. 1 will not
attempt to address this limitless range of hypotheticals, but reserve
the right for my Government to respond ta any further Libyan
' submissions with a specifie content.
In this connection, my Government would like tc associate itself
with the remarks by learned counsel for the United Kingdom yesterday
concerning the absence of any precedence in this Court for purely
general provisional measures. Where the requesting State falls ta
establish the need for specifie relief, it would be highly anomalous
ta indicate general restrictions on the ether party.
Libya's request for provisional measures, in sum, calle upon the
Court to give preeminence ta a novel, undefined, wholly implicit
construction of the Montreal convention ta bar ongoing,
well-established sovereign prerogatives of the United States. A keen
observer of the Court noted that provisional measures have not been
g~anted in the past to applicante seeking ta protect auch
i
uriprecedented claims against established rights; rather "the
respective applicants relied on recognized legal statue of more or
lesa long standing; and sought judicial relief against the respective
respondents who unilaterally attempted to alter or violate that statua
to the detriment of the applicants" (J. Sztucki, Interim Heasures in
a the Hague Court, (1983)). I refer to Mr. Sztucki's book. The
provisional measures Libya has requested, however they are construed,
CR4\Tl4-afm - 66 -
would not preserve the statue quo prevailing between the parties, but
would work a radical transformation of their rights during the
pendency of the case. In auch circumstances, it cannet be said that
•
the indication of provisional measures would, in the words of the
Statute, "preserve the respective rights of the parties". For this
'
reason, and because Libya has not demonstrated any urgency to its
request, Libya's request should be denied.
I thank the Court for its attention; it bas been an honor to
appear before you today.
I would now ask the court to call upon Mr. Kreczko to continue
our presentation.
The ACTING PRESIDENT: Thank yeu Mr. Schwartz. So I give the
floor to Mr. Kreczko.
v. As the Security Council is actively seised of the situation, the
Court should not indicate provisional measures
Mr. KRECZKO: Thank you Mr. President.
Under Article 41 of.the Court's Statute,-.the Court decides the
question of interim measures on the basie of whether "the circumstances
so require". In most cases, the exercise of that discretion is based on
information relating to the juriadiction of the Court, the urgency of
·,
CR4\Tl4-afm - 67 -
the requested measures, and the nature of the rights to be protected.
As we have already explained, Libya bas failed ~o meet these
established criteria .
••
\ In this case, an additional circumstance ls present. Here the
Security council, a co-ordinate principal organ of the United Nations,
simultaneously ~s addressing a situation with direct implications for
the matter brought before this Court. In auch circumstances, the
Court ought to examine whether ite actions would conflict with the
actions that the Council bas taken or is considering and, where
circumstances permit, should seek to reinforce the actions of the
council.
This Court has clearly decided that it and the Security Council
may properly exercise their respective functions with regard to the
same international dispute or situation (Hilitary and Paramilirary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Adminissibility Judgment, I.C.J.
Reports 1984, p. 435; united States Diplomatie and Consular Staff in
Tehran, Judgment, I.C.J. Reports 1980, pp. 21-22; Aegean Sea
Continental Shelf, Interim Protection, Order of 11 September 1976
I.C.J. Reports 1976, p. 28 (Separate Opinion of Judge Elias)).
Counsel for Libya apparently argues that this independant
authority should be used to interfere with the Security Council. The
•
f
CR4\Tl4-afm - 68 -
court's practice, however, is to the opposite. In the Hostages case,
the Court gave prominence to the actions of the Council and entered a
judgment reinforcing them (I.C.J. Reports 1980, pp. 21-23).
In the Aegean sea case, the court, in declining to indicate 1
provisional measures, expressly took note of the action of the
security council in regard to the matter before the court (I•C.J.
Reports 1976, p. 12) and it relied upon the obligations of the parties
to that dispute as members of the United Nations to respect their
obligations under the Charter (I.C.J. Reports 1976, pp. 12-13). In
addition to the Court's opinion, Judge Jiménez de Aréchaga,
Judge Lache, Judge Elias and Judge Tarazi each affirmed in separate
opinions the importance of the Security Council's action.
In reaching the decision to indicate the requested provisional
measures, the Court drew attention to the special responsibility of
the Security Council for the maintenance of international peace and
security:
"Whereas beth Greece and Turkey, as members of the
United Nations, have expressly recognized the responsibility
of the Security Council for the maintenance of international
peace and security; whereas, in the above mentioned
resolution, the security Council bas recalled to them their
obligations under the Charter with respect to the peaceful
settlement of disputes, in the terme set out in paragraph 49
above; whereas, furthermore, as the Court bas already
stated, these obligations are clearly imperative in regard
to the present dispute concerning the continental shelf in
CR4\T14-afm - 69 -
the Aegean; and Whereas it is not tc be presumed that
either state will fail tc heed the recommendation of the
Security council addressed tc them with respect tc their
present dispute." (I.c.J. Reports 1976, p. 13.)
As former President Jiménez de Aréchaga noted in his Separate Opinion,
the court, based upon the action taken by the Council, found that
l
interim measures were not required with respect to military actions by
the parties or steps which might extend of aggravate the dispute
(Separate ..Opinion of Judge Jiménez de Ariéchaga, I .c .J. Reports 1976,
p. 16). Other judges confirmed the deference that was given the
council's actions. In his Separate Opinion, Judge Lache noted the
prominence given the security Council's resolution in the reasoning of
the Court's Order (Separate Opinion of Judge Lache, I.C.J.
Reports 1976, p. 20). Judge Elias underlined the significance of
incorporating the substance of the resolution into the order (Separate
Opinion of Judge Elias, I.C.J. Reports 1976, p. 30). Judge Tarazi
explained the Court's approach eloquently:
"For it is true and certain that the Court is an
independent and judicial organ •.• it is no lesa true that
it is an integral part of the United Nations •.•
That being sc, the present Court, while maintaining its
independence, should not fail tc take into consideration
this basic truth, namely that it is an integral part of the
United Nations. The Charter, whose genesis marked a new
stage in the course of history, features sorne essential
differences in comparison with the provisions of its
predecessor, the Covenant of the League of Nations. Those
differences were due to the new situation which states and
peoples had ta face on account of the consequences of the
Second World War and of the developments which preceded or
triggered its outbreak.
There is no necessity here ta consider these differences in
detail. One may contend oneself with the affirmation that,
by virtue of the Charter, the Security Council bears an
essential responsibility for the maintenance of peace and
CR4\ Tl4-afm - 70 -
security. The Court, if circurostances so require, ought to
collaborate in the accomplishment of this fundamental
mission." (Separate Opinion of Judge Tarazi, I.C.J.
Reports 1976, p. 33 (emphasis added).)
In view of the substantial time devoted by counsel for Libya to
discussing whether Resolution 731 was a binding Security Council
•
decision, I would note that the court's support for the work of the
Security Council in the Aegean Sea case came in the context of a
non-binding recommendation by the council.
Mr. President, these cases reflect that the Court will strive to
reinforce the efforts of the Security Council in the exercise of its
responsibilities. As Professer Rosenne has written the Court, in its
capacity as a principal organ of the United Nations
"must cooperate in the attainment of the aime of the
Organization and strive to give effect to the decisions of
the ether principal organe, and not achieve resulte which
would render them nugatory" (I.S. Rosenne, The Law and
Practice of the International Court 70 (1965).)
•
,,
CR4\T14-afm - 71 -
In the past cases, the State requesting provisional measures has
made parallel requests for assistance from the Security Council. As
counsel for Libya acknowledged, this is the first case where the
Applicant to the Court is simultaneously the object of the Security
.. Council's action. Counsel for Libya summarily dismisses this as a
technical, procedural difference, which does not modify the nature of the
Court's responsibility under the Charter. However, the difference is
much more dramatic. Where the same State goes as Applicant to the
Council and the Court, these two organs of the United Nations are being
called upon to assist each other in achieving the same objectives. In
auch a situation, the Court can address the legal aspects of those
objectives and the Council can address the political and security
aspects without significant risk of eonflieting action.
Perhaps in realization that this Court will look, in appropriate
circumstances, to support the work of the Security Council, counsel for
Libya argues that it is asking the Court to "complement" the- work of the
Security Council. It is difficult 1 however, to rationalize the use of
the word complement - and the statement that the Council and the Court
can act in parallel - with Applicant's request that the Court enjoin the
United States from participating in the work of the Cotmcil.
In fact, Applicant invites the Court into two conflicts with the
Security Council. Most starkly, it would have the Court enjoin a member
of the Council from participating 'fully in its work when the Council is
actively considering taking action tmder Chapter VII of the United
• Nations Charter •
..
,, Second, in passing resolution 731, the Council had before ti the
.
• arguments of Libya, repeated today, that Libya should prosecute the
individuals, and that any contrary suggestion should be arbitrated under
0055c/CR4/Tl5/mj - 72 -
the Montreal Convention or referred to the International Court of
Justice. The Council deplored these positions as a failure of Libya to
respond effectively to the requests of the United States, France and the
.
United Kingdom. Whether or not the Council endorsed the United States
request for prosecution over other options- auch as prosecution in a
third State, will be determined by the Council. However,.it is clear that
the Council was not satisfied with the Libyan suggestion that Libya
prosecute the indi.viduals. Yet this is exactly the alleged right that
Libya asks this Court to protect.
Libya•s counsel suggests that the imposition of sanctions on Libya
for the refusa! to extradite could modify a whole legal system, based on
the principle of prosecute or extradite, and asks by what right the
Council can do so. Libya's statement of the issue is erroneous. First,
if the Council imposes santions, at !east at the request of the United
States, it will be because Libya's failure to take concrete actions to
distance itaelf from international terrorism, including by surrendering
the two individuala, constitutes a threat to international peace and
security. Second, auch a decision would confirm, not conflict with, the
existing international order. Existing international instruments clearly
confirm that support for terrorism is unlawful and that international
terrorism can threaten peace and security. It is Applicant who would
modify the existing legal order by converting multilateral instruments
designed to provide for effective prosecution of terroriste into grants
of immunity - including fromm Security Council action - to terroriste who
can make it back to their sponsoring State. Nothing in the conventions
against terrorism compels such a result. •
•'
0055c/CR4/Tl5/mj - 73 -
Pursuant to resolution 731, the Council remains seized of the
situation arising from Libya's refusa! to take concrete steps to end its
support for terrorism. The Court should not lend itself to this attempt
by Libya to frustrate the action that the Security Council may take in
the exercise of its responsibility to maintain international peace and
security. As Elsen observed in his treatment of litispendance between
the Court and- Council:
"Even though the situation can .involve many interesting
justiciable issues, adjudication by the Court, pending
proceedings in the Council, could unnecessarily complicate and
aggravate the situation. Accordingly, in auch a situation
instead of promoting the peaceful settlement of disputes the
Court could endanger the maintenance of international peace and
security, the very backbone of the organization." (T. Elsen,
Litispendance Between the International Court of Justice and
the Security Council 69 (1986).)
For exactly these reasons, the United States urges the Court, in the
exercise of its discretion under Article 41, to reinforce the actions of
the Council, as it did in the Aegean Sea Case and other cases, and to
avold any action that could be construed by Libya or ether States as
conflicting ;,ith the actions that the Sec.urity Council has taken in
resolution 731, or with the Security Cotmcil's authority to take other
action under the Charter to implement that resolution.
CONCLUSION
Thanlt you, Mr. President and with. your permission Mr. Williamson will n.ow
present our concluding remarks.
The ACTINGPRESIDENT: Thank you Mr. Kreczko, so I now call on the
•• Honourable Agent to the United States Mr. Williamson to present the
,._
• conclusion of the United States.
/
0055c/CR4/T15/mj - 74 -
MR. WILLIAMSON: Thank you again, Mr. President and Members of the
Court, that completes my gover.nment's forma! response to Libya's request
for provisional measures. In closing, let me recall the context in which
these proceedings have been instituted and the consequences should
Libya's request be granted.
The sabotage of Pan Am Flight 103 was perhaps the most horrifie
example of a terrorist attack against citizens of my country during the
last decade. I must say, reading p~ge after page after page of the names
of the innocent victims of that barbarie act forces one to share, if only
in a small way, in the terrible grief of their familles and friends.
Acts such as the destruction of Pan Am Flight 103 have wider
reverberations. It affects all of us. In boarding a plane, wishing
relatives well on their own travel, watching aircraft flying overhead,
one now inevitably thinks of the risk that callous individuals have
silently placed deadly explosives on board. Even the most stringent
security precautions at airports are insufficient to put us ·at ease.
We all have the right to safety when we travel - individually, as
air carriers and as gover.nments. We also have a right, a human right, to
be free of the scourge of State-sponsored terrorism. The world community
cannot stand idly by when a State embarks on a policy of supporting auch
heinous acta, as we believe Libya has done for many y~ars.
It is for that reason that when the investigation into the
Pan Am 103 tragedy established its underlying cause, the United States,
in concert with the United Kingdom and France, decided to act in a
comprehensive way. A number of requests were put to the Libyan
Government to afford it the opportunity to renounce its previous policies
and demonstrate, in a concrete way, that its support for terrorism had
come to an end.
0055c/CR4/Tl5/md -, --------- - --
J
- 75 -
What was Libya's response? It denied responsibility for past terrorism,
but declared it would stop supporting terrorism. It asserted it could
not comply with the requests, but then said it could. It proposed trials
'~...
of the accused in this Court and in third countries and in non-existent
1,
courts. Finally, when it realized the intention of the three Governments
to proceed to the Security Council, it insisted, for the first time, that
a dispute had- arisen under the Montreal Convention and that the dispute
should be referred to arbitration.
The Security Council, in resolution 731, adopted unanimously, found
these Liyan responses "deplorable". It expressed its "deep concern" over
the resulta of the investigations into the attacks carried out against
Pan Am 103 and UTA772 implicating Libya and urged Libya "immediately to
provide a full and effective response to those requests so as to
contribute to the elimination of international terrorism".
What, Mr. President, has Libya done subsequently? It has advised
the Secretary-General of the United Nations that it is prepared to
implement the resolution. We thought that it had, more recently, advised
the Security Council that it had decided to turn the suspects in the
Pan Am 103 bombing over to the Arab League, but apparently not. In any
event, nothing bas happened. ln consequence, the Security Council is
currently considering mandatory sanctions under Chapter VII to induce
Libya to comply with its earlier resolution.
Mr. President, instead of complying, Libya is pursuing this action
in this Court. It has asked for the extraordinary relief of provisional
measures. What would they be based upon? As we understand it, a
completely novel "right" to exclude the possibility of any other State
exercising criminal jurisdiction over the suspects, Libya's own
intelligence agents. What would the measures be geared to achieve? As
0054c/CR4/Tl6/fac - 76 -
we understand it, effectively to halt the Security Council's
deliberations on the pending resolution. Such a proposa! is, simply put,
preposterous, given the Council's primary responsibility under the
Charter for international peace and security. • t
When one considere that auch a preposterous proposa! lies at the
heart of Libya's request, that Libya's request meets none of the
criteria all of which must be met for the indication of provisional
measures that Libya is in effect asking this Court to find a right that
even a State sponsor of terrorism could assert and that Libya is asking
this Court to act contrary to, rather than in collaboration with, another
principal UN organ, we are led to the conclusion that Libya's real
objective must be simply to have a proceeding of some kind in this Court
to point to as part of a political initiative against the proposed
Council's sanctions resolution.
With respect, the Court should not allow itself to be used in this
way. Libya's request to the Court for provisional measures is not only
inconsistent with the jurisprudence of the Court related to provisional
measures, but if granted, it could do damage to the functioning of the UN
Charter's system for the maintenance of international peace and
security. The Court can be assured that providing Libya the relief it
seeks will be portrayed as support for Libya's defiance of Security
Council resolutions. On the other hand, denying Libya's request, and
reaffirming the importance of compliance with the Council's resolutions,
would give welcome support to the broad-based effort to channel threats
to peace into the Council.
Mr. President, Members of the Court, on behalf of myself and the
other members of the United States delegation, I want to tahnk you for
providing us this opportunity to appear before you,
0054c/CR4/Tl6/fac - 77 -
As our forma! submission, on behalf of the United States, I ask the
Court to deny the pending request for provisional measures.
Thank you.
The ACTINGPRESIDENT: Thank you, Mr. Williamson •
•
Now the initial presentation of the United States la completed.
Upon the request of the Applicant and then the Respondent in each
case, the Court needs to have a second round of the oral pleadings in
both cases. The Court will meet tomorrow for this purpose. The time to
start will be announced in due course as it depends upon negotiations
still in progress.
The Court adjourns.
The Court rose at 12.55 p.m.
--
0054c/CR4/T16/fac•
Audience publique tenue le vendredi 27 mars 1992, à 10 heures, au Palais de la Paix, sous la présidence de M. Oda, vice-président