Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) - Preliminary Objections

INTERNATIONAL COURTOFJUSTICE

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Communiqué

unofficial
for immediate release
No 98/5
27 February 1998

Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America)

Preliminary Objections

The Court willproceed to consider the merits of the case

THE HAGUE, 27 February 1998. The International Court of Justice (ICJ), the principal judicial organ of
,. the Un!ted Nations, foun~oda tat i! has jurisd_i_todeal with th~eri of the case brough~y Libya ~gainst
the Umted States of Amenca concemmg the aenal IOètdentat Lockerbte.lt also found that the Ltbyan clatms are
admissible.

Libya, which submitted the case to the Court on 3 March 1992, contends that the Uniteddoes not have
the right ta campel it to surrender two Libyan nationals suspectedng caused the destruction of Pan Am flight
103over the town ofLockerbie, Scotland, on 21 December 1988, in which 270 people died (ali 259 passengers and
crew, asweil as Il people on the ground). Libya argues that the Convention for the Suppression of Unlawful Acts
against theSafety of Ctvil Aviation signed at Montreal in 1971 authorizes it to try the suspects itself.

In June 1995,~e !JJ?i.tedStat~ais tree_pre_liminaryobje'?tiot~: irst to the jurisdicti?n of the Court,
the second ta the admtsstbthty the Ltbyan Apphcatton and the thtalleg h~t the Ltbyan claims bad become
moot as having been rendered without abject by resolutions taken by the Umted Nations Security Council. The
United States contended moreover, in the alternative, that, should the Court nonetheless hold that it bad jurisdiction,
it could and should"resolve the case in substance now" by deciding that the relief sought by Libya is precluded.

Jurisdictionf the Court

The United States contested the jurisdiction of the Court by contending that there was no legal dis_putewith
Libya on the Convention. They claimed that it was not a questton "bilateral differences" but one of "a threat
to international peace and security resulting from State-sponsored terrorism".

In its Judgment, the Court however finds that the Parties differ on the question whether the destruction of
• the Pan Am aircraft over Lockerbie is govemed by the Montreal Convention. A legal dispute of a general nature
conceming the Convention thus exists between the Parties. The Court adds that specifie disputes also exist
conceming the interpretation and applicationArticle 7 of the Convention (relating ta the place of prosecution)
and ArticleIl (relating to assistance in connection with criminal proceedings).

The United States also maintained that, even if the Montreal Convention did confer on Libya the rights it
daims, they could not be exercised this case because they were superseded by Security Council resolutions 748
(1992) and 883 (1993) which, by virtue of Articles 25 and 103 of the United Nations Charter, have priority over
ali rights and obligations arising outhe Montreal Convention.

The Court does not uphold this line of argument. Security Council resolutions 748 and 883 were in fact
adopted after thefiling of the Application on 3 March 1992. In accordance with its established jurisprudence,
if the Court had jurisdtction on that date, it continues to do so.

The Court concludes by thirteen votes to two that it has jurisdiction to hear the disputes between Libya and
the United States asto the interpretation or application of the Montreal Convention. _

Admissibility of the Libyan Application

The United States contended that, by seising the Court, Libya was endeavouring ta "undo the Council's
actions" and that, even if Libya could make valid claims under the Montreal Convention, these are "superseded''
by the relevant decisions the Security Council. ~ 2~

· The Court finds that it cannat uphold this conclusion. The date, 3 March 1992, on which Libya filed its
Application,s in fact the only relevant date for detennîning the admissibility ofthe Application. Secunty Council
resolutions 748 and 883 cannat be taken into consideration regard since they were adopted at a later date.
As ta the resolution (1992), adopted before the filing of the Application, it could not fonn a legal impediment
ta the admissibilitythe latter because it was a mere recomrnendation without binding effect, as was recognized
moreover by theUnited States. .

The Court concludes by twelve votes to three that Libya's Application is admissible.

Objection that the claimsibya became moot because of the Security Council resolutions

Concerning the objectionthe United States according ta which Libya'sdaims have become moot because
Security Council resolutions have rendered them without abject, the Court finds that to rule on that

objection at this stagehe proceedings, it would inevitably be ruling on the merits and affecting Libya's rights.
The Court, however, will be ableconsider the objection when it reaches the merits of the case.

Argument in the alternative

Finally, the Court did not upholdclaim of the United States by which it requested the Court, in the
alternative,o resolve the case in substance now" in the event that it should declare that it has jurisdiction and
deem Libya'sApplication admissible. The Court indicated that by raising preliminary objections, the United
had made a procedural choice the effect of which is to suspend the proceedings on the merits.

Further proceedings
•
Having established its jurisdiction and concluded that Libya's Application is admissible, the Court will now,
after consultation with the Parties, fix forihefurther proceedings.

The proceedings consist two parts: written and oral.

During the written phase, written pleadings are exchanged. The Applicant (Libya in this case) bas already
filed a Memorial on the merits and conse'luently, the Court will fix the time-limit for the fofins
a Counter~Mem or halRespondent (the Umted States). The Court may authorize a Reply by the Apphcant
and a Rejoinder by the Respondent.

Upon the closure of the written proceedings, public hearings are organized during which the Parties address

the issues that11dîvide them. The Court bands down a Judgment on the merits only after the oral proceedings.

The Court was composed as follows in the case: Vice~Pres ideerntantry, Acting President;
President Schwebel; Judges, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin,
Parra~Aran Kooijeans, Rezek; Judge ad hoc El-Kosheri; RegiValencia~Ospina.

Judges Bedjaoui, Ranjeva and Koroma appended a joint declaration; Judges Guillaume and Fleischhauer •
appended a joint declaration; Judge Herczegh appended a declaration. Judges Kooijmans and Rezek appended
separate opinions. President Schwebel and Judgeppended dissenting opinions.

A summary of the Judgment is given in Press Communique No 98/6bis. The text of the declarations and a
brief summaryof the opinions may be found in the Annex to that press communiqué.

The full text the Judgment, the declarations and opinions, as weil as the Press Communiqués,are already
available on the Court's Website (http://www.icj-cij.org). -

The printed text the Judgment and of the declarations and opinions appended to it will become available
in due course (orders and enquiries should be addressed to the Distribution and Sales Section, Office of the United
Nations,1211 Geneva 10; to the Sales Section, United Nations, New York, N.Y. 10017; or any appropriate
specialized bookshop).

Infonnation Office
Mr. Arthur Witteveen, Secretary of the Court ~70l302 2336)
Mrs. Laurence Blairon, Informationicer (t31:~0 302 2337)