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Non-Corrigé
Uncorrected
International Court
of .Justice
THE HAGUE CR 92/6
Cour internationale
• n:AR 1992
·.r de Justice
Public sitting LA HAYE
~,
'"f~ -
held on Saturday 28 March 1992, at 3.30 p.m., at the Peace Palace,
Vice-President Oda, presiding
in the case concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
Request Eor the Indication of Provisiona1 Measures
(Libyan Arab Jamahiriya v. United Kïngdom)
in the case concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
Request Eor the Indication of Provisiona1 Measures
(Libyan Arab Jamahiriya v. United States of America)
VERBATIMRECORD
ANNEE1992
Audience publique
tenue le samedi 28 mars 1992, à 15 heures 30, au Palais de la Paix,
sous la présidence de M. 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
• (Jamahiriya arabe libyenne c. Etats-Unis d'Amérique)
l'\
,/1 ,,
en l'affaire relative à des QuestionS d'interprétation et d'application
de la convent dei o o~tréal de 1971 résultant
de l'incident aérlen de Lockerbie
(Jamahiriya arabe libyenne c. Royaume-Uni)
Demande en indication de mesures conservatoires
COMPTERENDU
OOOlC - 2 -
Present:
Vice-PreJudges Sir Robert Jennings,t President of the Court
Lachs
Ago
Schwebel
Bedjaoui
Ni
Evens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
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
Evens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Aji bol a, juges
M. El-Kosheri, juge ad hoc
M. Valencia-Ospina, Greffier
...
'•
OOOlC - 4 -
The Government of the Libyan Acab Jamahiriya 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; '),
r
Mr. Abdelrazeg El-Murtadi Suleiman, Professer of Public
International Law at the Faculty of Law, Benghazi, ·"
Mr. Abdulhamid M. Raeid, Adocate Before Supreme Court,
as Counsel;
Mr. Jan Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy,
as Counsel and advocate;
Mr. Eric David,
as Counsel.
,The Government of the United States of America will be represented by:
The Honorable Edwin D. Williamson, Legal Adviser of the Departmen,t
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. Rashko~, 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,
Mr. Bryan Murtagh, D~partme nftJustice,
Ms. Lucy F. Reed, Legal Counselor, United States American Embassy,
Attorney-Advisers.
OOO!C - 5 - .
Le Gouvernement de la Jamahiriya arabe libyenne sera représenté par :
s. Exc. 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
public à la faculté de droit, Benghazi,
M. Abdulhamid M. Raeid, avocat à la Cour suprême,
comme conseils;
M. !an Brownlie, Q.C.,
M. Jean Salmon,
M. Eric Suy,
comme conseils et avocats;
Mr. Eric David,
comme conseil.
Le Gouvernement des Etats-Unis d~Amériq ueea représenté par :
L'honorable Edwin D. Wi!liamson, conseiller juridique, département
d'Etat,
agent et conseil;
M. Alan J. Kreczko, 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 Kïngdom of Great Britain and Northecn Ireland will be
represented bg:
Mr. F. D. Berman, C.M.G., Legal Adviser to the Foreign and
Commonwealth Office,
as Agent;
Mrs. Wilmshurst, Legal Counsellor in the Foreign and Commonwealth
Office,
as Deputy Agent;
Mr. Alan Rodger Q.C., Solicitor General of Scotland,
Ms. Rosalyn Higgins, Q.C.,
Mr. Christopher Greenwood, Barrister-at-Law,
as Counsel;
Mr. Patrick Layden,
Mr. Norman McFayden,
as Advisers.
•
OOO!C - 7 -
Le Gouvernement du Royaume-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 Rodger Q.C., Solicitor General d'Ecosse,
MmeRosalyn Higgins, Q.C.,
M.Christopher Greenwood, avocat,
comme conseils;
M. Patrick Layden,
M. Norman McFayden,
comme conseillees •
•
OOOlC - 28 -
The ACTINGPRESIDENT: Please be seated. The Court will now hear
the Rejoinder of the United States in the case brought by Libya against
the United States, so I now cal! on Mr. Williamson, the most senior Agent
for the United States,
Mr. WILLIAMSON: Thank you. Mr, President and Members of the
Court. Again, may I offer the respects of the United States' Government
to the Court and express our appreciation. for the dedication and
generosity revealed in your devoting this day to this proceeding,
Yesterday, we demonstrated that Libya failed to carry its burden in
demonstrating to the Court that the circumstances require the Court to
take the extraordinary step of indicating provisional measures.
This morning, we had the Libyan response.
Libya has emphasized and reiterated portions of its initial
presentation, but added little substance to it. Emphasis and
reiteration, however, cannet substitute for a justification, which Libya
has still failed to provide to support its extraordinary request. With
the Court's forebearance, 1 intend to review each of the basic
propositions we made yes terday and assess the Li byan respon.se to them,
Before doing so, however, I would like to make two general points,
First, to justify provisional measures, Libya must prevail on each •
of the points at issue. If it falls to meet any of the estabalished
criteria, the request should be denied. Moreover, if the established
criteria are not demonstrated, no provisional measures should be
granted. Were the Court to lower its standards on these criteria, even
if only to indicate sorne general, hortatory measuress, the Court would
invite applicants routinely to seek provisional measures. This would put
at risk the extraordinary nature of interim measures, which are indicated
on short notice and without the benefit of thorough pleadings by the
parties.
0083c/CR6/T7/rmcb - 29 -
Second, with respect to each of the points at issue, the burden of
showing that each criterion is met is on Libya. Repeatedly today, Libya
has attempted to shift that burden to the United States. I.t is Libya
that has taken the extraordinary step of asking this Court to convene on
an urgent basis to hear its request for provisional measures. Libya, not
the United States, carries the burden of justifying that action.
Mr. President, if I may return to our basic propositions.
In the first of our four propositions, we demonstrated that Security
Council decision-making is beyond the reach of provisional measures, We
pointed out that the United States has a Charter right to bring matters
to the attention of the Security Council, and to participate fully in,
and vote on, Security Council resolutions under Chapter VII addressing
threats to international peace and security.
We made this argument because we understood Professor Suy on
Thursday to have requested this Court to order the United States to
abstain from any action in the Security Council, which, by virtue of
Chapter VII of the Charter, would interfere with Libya's asserted right
to try the individuals suspected of bombing Pan Am 103.
This morning, we understood Professor Suy to acknowledge that it
would be grotesque to suggest that a Permanent Member cannat speak on an
issue before the Council. At the same time, however, h.e asks this Court
to imagine what would be the situation if provisional measures were not
indicated and the Security Council used its .Chapter VII authority to
require Libya, either to surrender the individuals or to face economie
sanctions. We are left in sorne doubt, therefore, about whether in fact
Libya now agrees that Security Council decision-making is not an
appropriate subject-matter for provisional measures.
0083c/CR6/T7/rmcb - 30 -
Whatever Libya's intention, it has failed to produce any suggestion
that action by the Security Council, or members participating in the work
of the Security Council, would be an appropriate object of provisional
measures, I refer the Court to our statement of yesterday for references'
to the various provisions of the United Nations Charter concerning the
responsibilities and authorities of the Security Council, the right of
States to bring matters before it and the right and responsibility of the
United States to participate in the work of the Council. Having accepted
the Charter framework by becoming a member of the United Nations, Libya
cannet now challenge one of the most fundamental aspects of that
framework. •
Nor can Libya avold the argument by suggesting that the
United States can continue to participate in the work of the Security
Council on matters of international peace and security but not, on what
Libya asserts is the bilateral issue concerning the surrender of the
individuals. Changing the terminology does not change the effect, If
the Security Council imposes sanctions on Libya, it will be because the
Council believes that Libyan actions constitute a threat to international
peace and security,
Mr. President, the legal argument I am now advancing is so
•
fundamental that I would not have imagined it ever being questioned. But
since the question has been raised and not satisfactorily withdrawn by
Libya, the Court should not miss the opportunity clearly to dispose of it.
0083c/CR6/T7/rmcb - 31 -
To avold any confusion on so fundamental a point, we respectfully
suggest, Mr. President, that when the Court denies the Libyan requests,
it make clear that the filing of the Libyan Application in no way a.ffects
the authority of the Security Council under Chapter VII to take up any
.. matter in the discharge of its duties under its primary responsibility,
assigned to it by Article 24 and performed on behalf of all Members of
the United Nations, for the maintenance of international peace and
security. Further, it should also make clear that such filing in no way
affects the ability of any member of the Security Council, or of any
member of the United Nations, for that matter, to participate fully in
the work of the Security Council as provided in the Charter.
Let me now turn now to the second of our four propositions. There,
we demonstrated that Libya has failed to show that the Montreal
Convention provides prima facie a possible basis for jurisdiction. This
is because the Convention requires as a condition precedent to recourse
to the Court that a six-month period lapse in which the parties have been
unable to agree on the organization of an arbitration.
In his reply this morning, Professer Salmon referred to the Judgment
of the Court in the Hostages case in support of Libya's position
regarding the six-month provision of Article 14, paragraph 1, of the
•
Montreal Convention. Specifically, he points out that the United States
argued, and the Court agreed, that the two-month period provided by the
Optional Protocole to the Vienna Conventions.could be disregarded. That
provision, however, is the contrary of Article 14,. paragraph 1. It
provides for the resolution of disputes by the Court unless, afer a
dispute has arisen, the parties affirmatively agree to seek to organize a
different means of resolving the dispute, in which event a period of
two months is reseved for that process before recourse to this Court is
0084c/CR6/T8/cw - 32 -
again available. Thus ·jurisdiction initially is vested in this Court,
subject to being divested, at !east for that period of two monhts, by a
subsequent positive agreement of the parties that they will seek another
alternative. In the Hostages case the United States proved it bad not
agreed with Iran to seek another forum than this Court and the two-month •
period thus was round never to have been invoked.
"Articles II and III of the Protocole, it is true, provide
that within a period of two months after one party has notified
its opinion to the ether that a dispute exists, the parties may
agree either: (1) 'to resort not to the International Court of
Justice but to an arbitral tribunal', or (b) 'to adopta
conciliation procedure before resorting to the International
Court of Justice'. The terms of Articles II and III however,
when read in conjunction with those of Article I and with the
Preamble to the Protocols, make it crystal clear that they are
not to be understood as laying down a precondition of the
a.pplicability of the precise and categorical provision
contained in Article I establishing the compulsory jurisdiction
of the Court in respect of disputes arising out of the
interpretation or application of the Vienna Convention in
question. Articles Il and III provide only that, as a
substitute for recourse to the Court, the parties may agree
upon resort either to arbitration or to conciliation. It
follows, first, that Articles II and III have no application
unless recourse to arbitration or conciliation has been
proposed by one of the parties to the dispute and the ether has
expressed its readiness to consider the proposa!. Secondly, it
follows that only then may the provisions in those articles
regarding a two months' period come into play, and function as
a time-limit upon the conclusion of the agreement as to the
organization of the alternative procedure."
Article 14, paragraph 1, of the Montreal Convention, on the other
•
hand, mandates arbitration, subject to divestment in faveur of this Court
only if within a period of six months the parties have not succeeded in
agreeing on the details of that arbitration.
1 would note, however, that Professer Salmon's reference to the
two-month period envisioned in the Protocols is relevant here in that
neither Profèssor Salmon nor this Court in the Hostages case denied
that once auch period is invoked, it must run its full course before
jurisdiction can revert to this Court. Thus the Court in the Hostages
0084c/CR6/T8/cw ~.',,..'...
-·_t~
- 33 -
case said that the "two months' period .•• function[a] as a time-limit
upon the conclusion of the agreement as to the organization of the
alternative procedure". Similarly, the six months under Article 14,
paragraph 1, must elapse before jurisdiction can arise here. Thus
..
Professer Salmon in fact confirma our view.
Although Professer Salmon did not refer to it, I feel it appropriate
to make a brief comment on the United States argument in the Hostages
case that the Court could indicate provisional measures pursuant to the
jurisdictional clause in the 1973 Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persans, despite
the fact that a six-month period in the compromissory clause had not
elapsed. In oral proceedings, the United States acknowledged the
weakness of this argument, despite the existence of factual circumstances
much more compelling than those presented in this case. Moreover, the
Court did not act on the United States claim to jurisdiction under this
provision.
The United States did not reject the Libyan request for
arbitration. The simple fact is that the United States bas not
considered it necessary or appropriate to respond, knowing that the
Montreal Convention gave th.e parties six months to reach agreement on the
terms of the arbitration and, more importantly, knowing Libya's apparent
engagement with the Secretary-General under resolution 731.
United States non-attention to a.n unclear request for arbi tration, in a
situation where it was not apparent that the request was maintained and
.• good reason existed to think that it had not been maintained, cannet
constitute a "rejection" of the Libyan request, or a waiver of
United States rights ta the six-month period.
0084c/CR6/T8/cw - 34 -
The third of our four propositions was that Libya had failed to meet
the criteria for interim measures, because it had not shawn that interim
measures were urgently needed to protect rights likely to be
adjudicated. This single proposition has a number of elements. First,
..
the element of urgency. Second, a demonstration that the measures
requested relate to the rights to be adjudicated. "Third, a demonstration
of the possible existence of the claimed rights (as opposed to a mere
assertion that such rights exist). Fourth, a demonstration that the
provisional measures would protect the rights of the respective parties.
Again, each of these criteria must be met.
Counsel for Libya this morning suggested once again that the Court
dispense with urgency as a criterion for provisional measures. It is
difficult to understand why the Court's Rules would require the Court to
treat provisional measures as a priority matter, and why the Court would
make decisions without the benefit of full pleadings, except on a showing
of urgency.
•
1
.
..,
..
0084c/CR6/T8/cwr------------------------------------~-- --
- 35 -
Counsel's novel assertion and his peculiar reading of the Passage
through the Green Belt case is a revealing comment on Libya's inability
to demonstrate actual urgency .
•
The sole evidence Libya has presented is a series of statements by
••
British and American officials refusing to rule any option in or out, the
most .recent of which, as described to the Court yesterday, included an
explicit disclaimer that the use of force was under consideration by the
United States. To barrow a phrase from Libya's counsel, there is an "air
of unreality" to read into a statement disclaiming consideration of the
use of force to be a threat of imminent use of force.
The fact is the United States has not made threats to use force and,
contrary to suggestions by Libya's counsel, recourse to the collective
security provisions of the UN Charter do not and cannet legally threaten
irreparable injury. Significantly, none of the Member States of the
United Nations who addressed the Security Council during the debate on
resolution 731, including many who could be considered sympathetic to
Libya, said anything about a threat of force by the US or the UK. Only
Libya raised this spectre. Clearly Libya has not made out any case for
urgency, and for that reason its request must be denied •
• Even had Libya demonstrated urgency, Libya would need to show that
interim measures would serve the function of preserving the rights of the
Parties.
We made severa! points yesterday under this element.
First, only one of the items in Libya's requested judgment is even
hypothetically a possible subject for provisional measures. Two of
•
Libya's requested judgments relate to past actions - that Libya has
complied with the Montreal Convention and that the United States has
breached it. Interim measures are not needed to protect past rights.
0085c/CR6/T9/fac - 36 -
Another of Libya's requested judgments - that the United States refrain
from all violations of Libyan sovereignty - is patently outside the
jurisdiction of this Court, which is founded here exclusively on the
..
Montreal Convention. Libya did not respond to these points.
This means that the only judgment Libya seeks that is even -.
hypothetically suitable for provisional measures is the request that the
United States be enjoined from future breaches of the Convention.
However, to sustain its request for provisional meausures, Libya
must demonstrate at least the possible existence of the right it seeks to
protect, In this case, it asserts a right to exclusive prosecution,
relying principally on Article 7 of the Montreal Convention. From
today's speech, we have learned three new aspects of the Libyan position:
1. Libya concedes that the text of Article 7 does not by its terms
establish any such right.
2. Libya concedes that the Convention as a whole does not establlsh
any such priority of jurisdlction.
3. Libya now resta its case not upon the text or structure of the
Convention as a whole, but upon a novel principle of interpretation.
This principle seems to run as follows: where a treaty creates an
obligation for one party it can discharge in one of two ways, ether
•
parties are implicitly forbidden from trying to influence how that
decision is made; or, from pressing for action consistent with the
treaty obligation on the basis of ether sources of legal duty, including
obligations deriving from the Charter of the United Nations.
It would seem that in invoking this !dea, Libya is trylng to stand
the case on its head. This is not a case brought by the United States
io
against Libya for breach of the Montreal Convention for a decis.ion not to
extradite. This is a case brought by Libya against the United States for
0085c/CR6/T9/fac - 37 -
seeking the transfer of the two suspects. The fact that Libya could
discharge an Article 7 duty by prosecuting rather than extraditing has
nothing whatsoever to do with whether the United States may seek to
•
obtain jurisdiction instead. As counsel for Libya has conceded, the
'. Convention simply does not address this question of allocation of
jurisdiction. We conclude, therefore, that Libya bas not made the
required showing of rights under the Montreal Convention for which it
seeks protection.
Libya•s counsel also referred today to Article 11 of the Convention,
~ which, in certain circumstances, calls for parties to provide each other
assistance in conjunction with criminal proceedings, subject to the law
of the requested State, The United States understands that one of the
breaches of the Convention Libya alleges is that the United States has
not complied with this article. That is a question for the merita.
Today we are here to diseuse Libya's request for provisional measures,
In its request, as we understand it, Libya has not asked the Court to
order the United States to provide Libya any such assistance. Even if
Libya had done so, there could not possibly be the imminent risk of
irreparable harm necessary to justify provisional measures. Suffice it
to say, the United States has no intention of destroying the evidence of
•
the crime in its possession.
In light of the more general commen.ts by counsel for Libya today, I
would like to make one final point concerning .the relationship between
the Montreal Convention and the US and UKefforts to acquire jurisdiction
over the two suspects, The United States was a leader in the creation of
this Convention and its successors. We faveur its vigorous application
as one of the tools for combatting international terrorism. What we fail
to understand is Libya's contention that it should be regarded as the
0085c/CR6/T9/fac - 38 -
sole available tool, particularly in cases of State-supported
terrorism. Here, the Security Council found Libya's proposa! to
prosecute its own intelligence agents "deplorable", It would be entirely
• •
consistent with the Montreal Convention, and general international law,
for Libya to answer the request of the world community by transferring . '
the suspects for trial elsewhere.
•
..
0085c/CR6/T9/fac - 39 -
Counsel for Libya says that with the exception of the surrender of the
individuals, Libya has complied with resolution 731. For our part, we
• have seen no compliance. In any event, it will be for the Security
Council, in the discharge of its function of maintaining international
' .
peace and security, to determine whether Libya's actions warrant
collective action.
Beyond urgency and the possible existence of the right for which
protection is sought, Libya must also show that the interim measures are
necessary to protect the "respective rights of either party". In this
case, the request for provisional measures is extraordinarily vague. At
a minimum it could enjoin the right of the United States to participate
fully in the work of the Security Council; literally, it would apply to
an even broader range of sovereign United States rights. When such
fundamental United States rights are implicated, it would be inconsistent
with the preservation of "the respective rights of either party" to grant
the requested provisions! measures.
Our fourth proposition yesterday was the Court, in exercising its
discretion, should strive to support the work of the Security Council.
Counsel for Libya did not challenge this proposition, and the ample
support for it. Nor did Counsel for Libya deny our argument that Libya
intends to draw the Court into conflict with the Coundl by seeking to
enjoin the participation of two members in its work, and by asklng the
Court to endorse a Libyan right to prosecute.individuals where•the
Councll bas deplored the suggestion that Libya should prosecute them.
•. In fact, Libya•s reply this morning suggests additional conflicts
with the Security Council. Mr. Suy this morning suggested that the
Council was acting irnproperly under Article 36 in adopting
resolution 731. Later, Professor Suy suggested that it would be improper
0086c/CR5/Tl0/mj - 40 -
for the Seeurity Council to use its authority under Chapter VII of the
Charter to remove Libya's asserted right to try the individuals.
I have two responses, First, the Security Council can, acting under
'
Article 36 of the Charter, recommend that Libya not exercise a treaty
right, even if it exists, Second, it is equally clear that the Security --
Council can, under Chapter VII, arder Libya to surrender the
individuals. Under Article 25 of the Charter, Members States agree to
aecept and carry out the decisions of the Security Council. Under
Article 103 of the Charter, this obligation overrides any inconsistent
treaty, As to Libya's interna! law, which Libya bas sometimes suggested
would preclude the surrender of the individuals, it can not provide a
justification under international law for failure to comply with a
Security Council decision taken to deal with a threat to international
peace and security.
Mr. Suy suggested that we are trying to deny the independence of the
Court and the Council. We are not, We are suggesting, however, that
they coordinate organs of the same institution, and that, where possible,
they should not tug and pull at each other, but should instead
collaborate. Professer Suy never responded to this proposition.
Counsel for Libya noted that during the adoption of resolution 731,
•
severa! States expressed uneasiness over the prospect of requiring a
State to surrender its own national for prosecution elsewhere. Sorne of
these States, as Professer Suy pointed out; expressly referred to the
Montreal Convention. The fact, however, is that the resolution adopted
does not refer to the Montreal Convention. And, the Council did not take •
up Libya's suggestion to refer the matter to this Court, although the
United Nations Charter expressly holds out the possibility of the
Security Council seeking the views of the Court (Art. 96) or asking the
_parties to a dispute to do so (Art. 36). More fundamentally, the Council
0086c/CR5/Tl0/mj - 41 -
will have the opportunity to consider again these arguments when it
considera whether to sanction Libya for failure to take concrete steps to
• • distance itself from terrorism. We suspect that Libya's effort to
convince this Court to seek to enjoin the United States from bringing
1 •
this issue up in the Security Council springs from its inability to
convince the Councll that it has ended it support for terrorism.
Counsel for Libya raises the specter of numerous countries being
forced to surrender their nationale if the Security Council ls permitted
to act. Counsel invites the Court to intervene, through the
extraordlnary step of an indication of provlsional measures, in order to
ensure the Council does not violate Libya•s notion of the principle of
"prosecute or extradite".
Libya's concerna are fanciful. While the Council has the authority
to make decisions binding on Members, it is not and does not purport to
be a legislative body. A resolution under Chapter VII of the Charter
addressed a partlcular dispute or situation. In this case, the Councll
acted because of concerna about State complicity. This was explicit, for
example, in the statement by the representative from Venezuala. Libya
denies compllcity. But this is exactly the type of denia! that the
Security Council ls constituted to address.
Libya also denies complicity in the 1986 bombing of the La Belle
Disco in Berlin. And it has boldly asserted to this Court that
subsequent events have confirmed its innocence. The United States would
only note that all the evidence that has been uncovered since our
original investigations into the bombing of the La Belle Disco is
precisely to the contrary. The Lockerbie investigation disclosed that
times identical to the one used in the Pan Am 103 bomb were transferred
to the Libyan People's Bureau in East Berlin prior to the bombing of the
0086c/CRS/Tl0/mj - 42 -
La Belle Disco, the same Libyan mission that was instructed from Tripoli
to conduct a terrorist attack against Americans, the same mission that
advised Tripoli on the eve of the bombing that the attack would be .~
carried out the following morning, and the same mission that reported •
"
back to Tripoli afterwards on the great success of their mission. -!
Severa! Libya:n officiais remain suspects in the German Government's
continuing investigation.
It is for the Security Council to determine whether a State's
actions threaten the international peace and security. There is no
threat that resolution 731 stands for a new international practice that 4lt
State's cannet try their own nationale. It stands for the limited
proposition that when at least nine members of the Security Council are
concerned that a situation of terrorism implicates the State holding the
terrorist, the Council may determine that prosecution of the terrorists
by the complicitous may not serve international peace and security. it
is revealing that Libya considere this precedent threatening.
•
•
;t·
...
0086c/CR5/Tl0/mj - 43 -
Mr. President, if I may, let me summarize our four propositions, as
follows:
If this Court indicates provisional measures:
• •
- It will have found that, prima facie, it has jurisdiction over a
••
dispute in the face of the clear wording of'Article 14, paragraph 1, of
the Montreal Convention, that a party does not have the right to take a
dispute to this Court until six months have elapsed in which the
parties have been unable to agree on the organization of the
arbitration. Such a finding would include the conclusion that Libya
has overcome the prima facie case that there is no jurisdiction and
established a prima fade case that a dispute exista under the Montreal
Convention and that the United States has acted in such a way that this
Court can infer a positive rejection of the Libyan request for
arbitration, notwithstanding the fact that only six weeks had passed
between Libya's first serious mention of arbitration and its filing of
its Application before this Court, and notwithstanding the evolving
position of Libya in its conversations with the Secretary-General.
- lt will have found that Libya has a reasonable possibility of proving
that the Montreal Convention establishes an exclusive right to
prosecute, notwithstanding that Libya has not shown any textual or
historical basis for the right it asserts un.der the Montreal
Convention, and it will have found that Libya bas a possibility of
proving, either that such right is available to a State that bas
participated in a terrorist act, or that Libya was not involved in the
bombing of Pan Am 103 .
•
It will have found that circumstances require the indication of
provisional measures because Libya has demonstrated that (a) such
measures are urgently needed, notwithstanding the lack of any proof of
a threat of a use of force, beyond an assertion that official failure
0087c/CR6/Tll/rmcb - 44 -
expressly to rule out the option of using force constitutes a threat,
and (b) that Libya has demonstrated that the provisional measures
will serve the function of preserving the rights of both parties,
notwithstanding that they do not apply to three of the four judgments
Libya seeks· and that such measures would conflict with the sovereign -'
rights of the United States, and notwithstanding that the provisional
measures would be inconsistent with the United States rights and
obligations under the United Nations Charter, as a Member of the
Security Council.
- Finally, the Court will have found that it is appropriate for the Court
to indicate provisional measures, notwithstanding the fact that its
action will be contrary, rather than in collaboration with, the
Security Council's attempt to accomplish its mission of maintaining
international peace and security.
Mr. President, Members of the Court, one of the most troublesome
aspects of the prospect of an indication of provisional measures in this
case, is the precedent it will set, It will represent a lowering of the
threshhold heretofore established by the Court's practice for indicating
provisional measures. As 1 mentioned earlier, that will have the effect
of encouraging litigants to include requests for provisional measures
•
more frequently, because it will be easier to get before the Court,
While that, in and of itself, is the wrong trend for an extraordinary
procedure, in this context it has a much worse effect, because it will
encourage the seeking of provisional measures that will put the Court in
conflict with the Security Council. This lowering of standards will
•
encourage States that are unsuccessful in the Security Council to fight
their political battles in this Court.
0087c/CR6/Tll/rmcb - 45 -
Mr. President, I would like to conclude by turning to a statement
that Professor Salmon made at the beginning of his reply. I would start
by thanking him for his statement of grief for the victims of the
...
Pan Am 103 bombing and by saying that we share the grief for the murder
of his son's friend.
Professor Salmon said that it is important that the perpetrators be
brought to justice "in full respect for international law".
We agree.
The United States has taken the following actions to bring the
perpetrators to justice.
- we conducted a thorough investigation, over three years, before seeking
indictments. It is clearly consistent with international law for a
State to investigate the murder of its citizens;
- when Libyan nationals were implicated, we asked Libya to surrender
them. Counsel for Libya now accepta that there is no priority of
jurisdiction concerning terrorists who attack civil aircraft. There
was nothing improper in seeking Libya's co-operation in our prosecution
of the individuals;
- when Libya declined, the United States took the matter to the Security
Council, a clear right under the United Nations Charter;
- we argued to the Security Council that the issue was Libyan supported
terrorism and the Council responded by asking Libya to take concrete
steps to distance itself from terrorism, including by providing a full
and effective response to the United States requests;
- now, we are arguing to the Council that Liby's failure to distance
itself from terrorism constitutes a threat to international peace and
security, to which the Council should respond.
0087c/CR6/Tll/rmcb - 46 -
Far from pursuing justice for the perpetrators in violation of
international law, the United States has acted at every step in
conformity with the framework of the United Nations Charter. It remains
••
unclear to us what in the process is illegal, or how the Montreal
Convention could conceivably preclude any of the steps we have taken.
Perhaps Libya will be able to develop an argument if its case goes to the
merita, but it clearly has not demonstrated that actions are underway
which warrant the indication of provisional measures.
Instead, Libya seems to be suggesting that international law
requires that we accept that only a complicitous State can try the
perpetrators of this act of terrorism. Applicant responds that Libya is
not complicitous but, at the same time, seeks to prevent the Security
Council from considering this issue.
l
)\
0087c/CR6/Tll/rmcb
,)
\ - 47 -
Mr. President, I appreciate the attention that the Court has shown,
and I reiterate our request that it reject the Libyan Application for
provisions! measures and indicate no such measures.
To Judge Ajibola, I also send my congratulations and best wish.es in
his new role.
I hope that having the session today is not an indication of things
to come!
To the Registrar and the Registry our profound thanks for al! of
your help and support.
Finally, on behalf of the Government of the United States I
respectfully present the following Submission to the Court:
"May it please the Court,
On behalf of the United States of America, to reject the
request of the Government of the Great Socialist People's
Libyan Arab Jamahiriya for the indication of provisional
measures of protection, and not to indicate any such measures."
Mr. President and Members of the Court, I thank you for your
attention.
The ACTINGPRESIDENT: Thank you, Mr. Williamson, the distinguished
Agent of the United States, for your presentation of the Rejoinder and
the Submissions.
Wehave new come to the end of the hearings devoted to the request
for the indication of provisional measures which the Libyan Arab
Jamahiriya h~s presented in each of the two cases instituted against the
United Kingdom and the United States of America, respectively.
Iwo Members of the Court wish to put questions to the Parties. So I
now call on Judge Schwebel.
0088c/CR6/Tl2/cw/fac - 48 -
Judge SCHWEBEL:Thank you Mr. President. These questions are
directed to bath Parties in bath cases.
1. The Preamble to the Montreal Convention provides that its
"purpose'' is that "of deterring" unlawful acts against the safety of
civil aviation by "any persan". In the cases before the Court, the ~~·
)/
persona accused of having committed such an act are claimed to be persans
-"·
who are - to quote the United Kingdom terminology - "officers of the
Libyan Intelligence Services" who conspired "to further the purposes of
the Libyan intelligence services by criminal means ...". Does the
Convention caver such an accusation, i.e., of acts of persans in official
service carrying out offlcial purposes? Would the trial by a State of
p,ersons alleged to be, i ts own officiais, and who are acknowledged by that
State's counsel to be its own officials, who are alleged to have
furthered its own purposes, be the prosecution by a Contracting State
which is contemplated by the Montreal Convention?
2. Article 12 of the Montreal Convention provides that: "Any
Contracting State having reason to believe that one of the offences
mentioned in Article 1 will be committed shall, in accordance with its
national law, furnish any relevant information in its possession to those
.States which it believes would be States mentioned in Article 5,
paragraph l". That is to say, if a Contracting State has reason to
believe that an offence such as blowing up an aircraft will occur in the
territory of another State, or against an aircraft registered in that
other State, it will so inform that other State. Does or does not this
provision suggest that the purpose of the Montreal Convention is to caver l'
·~
offences alleged to have been, or to be, carried out by persans in the ••
.,.
service of the Contracting State, and who are acknowledged by that •
State's counsel to be in State service, who allegedly are acting in
pursuance of the purposes of that State?
0088c/CR6/Tl2/cw/fac - 49 -
3. Under Article 10 of the Montreal Convention, the Contracting
States shall, in accordance with international and national law,
endeavour "to take all practicable measures for the purposes of
preventing the offences" covered by the Convention. Does or does not
this provision suggest that the purpose of the Montreal Convention is to
caver offences alleged to have been carried out by persans in the service
of the Contracting State, and who are acknowledged by that State's
counsel to be in State service, who allegedly were acting in pursuance of
the purposes of that State? Thank you, Mr. President.
The ACTINGPRESIDEN'l': Thank you, Judge Schwebel.
Judge ad hoc El-Kosheri wishes to put a question to the Applicant,
Judge ad hoc EL-KOSHERI: Thank you, Mr. President.
My question is put to the Libyan Arab Jamahiriya, The submissions
related to the provisional measures requested by the Libyan Arab
Jamahiriya contemplate only that the Respondents should take or refrain
from taking certain actions. Bearing in mind that Article 41 of the
Statute refers to the preservation of "the respective rights of either
Party", does the Libyan Arab Jamahiriya envisage that the Court could
indicate measures to be undertaken, not only by the two Respondent
States, but equally by the Libyan authorities?
That is my question.
The ACTINGPRESIDENT: Thank you, Judge ad hoc Al-Kosheri,
The Agents of the Parties are requested to reply in writing to the
questions put to their Governments in accordance with Article 61,
paragraph 4, of the Rules of Court, and the time-limit for such replies
is fixed with that provision, at 6 p.m. on Thursday 2 April 1992.
0088c/CR6/Tl2/cw/fac - 50 -
That completes the present hearings, held pursuant to Article 74,
paragraph 3, of the Rules of Court, on the request by the Libyan Arab
Jamahiriya for the indication of provisional measures in the case
concerning Questions oE Interpretation and Application of the 1971
Montreal Convention a.rising Erom the Aeria.l Incident at Lockerbie (Libyan
Arab Jamahiriya. v. United Kingdom) and the case concerning Questions
oE Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Ja.mahiriya v.
United States of America).
Before closing the proceedings however I wish to extend my thanks to 4lt
the Agents of al! three Parties for the co-operative way in which they
have helped the Court to deal with both cases as a matter of practical
convenience in one and the same series of hearings. 1 should however
recall here what 1 stated at the outset, namely, that this procedure will
decide, without prejudice to any ether action that the Court may or may
not take under Article 47 of the Rules.
1 request the Agents of the Parties to remain at the disposai of the
Court for any further information or assistance it may require. Subject
to that reservation, I declare the present hearings closed,
The Court rose at 5.40 p.m.
0088c/CR6/Tl2/cw/fac
Public sitting held on Saturday 28 March 1992, at 3 p.m., at the Peace Palace, Vice-President Oda presiding