|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.2.||Conditions for a Decision on the Merits|
|2.2.2.||Necessity of Diplomatic Negotiations|
Questions of Interpretation and Application
of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie
(Libya v. United Kingdom) Preliminary
Objections, Judgment of 27 February 1998
I.C.J. Reports 1998, p. 9
[pp. 16-17] 18. Libya submits that the Court has jurisdiction on the basis of Article 14, paragraph 1, of the Montreal Convention, which provides that:
"Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot 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."
19. The Parties agree that the Montreal Convention is in force between them and that it was already in force both at the time of the destruction of the Pan Am aircraft over Lockerbie, on 21 December 1988, and at the time of filing of the Application, on 3 March 1992. However, the Respondent contests the jurisdiction of the Court because, in its submission, all the requisites laid down in Article 14, paragraph 1, of the Montreal Convention have not been complied with in the present case.
20. The Respondent expressly stated that it did not wish to contest the jurisdiction of the Court on all of the same grounds it had relied upon in the provisional measures phase of the proceedings, and restricted itself to alleging that Libya had failed to show, first, that there existed a legal dispute between the Parties and second, that such dispute, if any, concerned the interpretation or application of the Montreal Convention and fell, as a result, within the terms of Article 14, paragraph 1, of that Convention. Consequently, the United Kingdom did not, in the present phase of the proceedings, reiterate its earlier arguments as to whether or not the dispute that, in the opinion of Libya, existed between the Parties could be settled by negotiation; whether Libya had made a proper request for arbitration; and whether the six-month period required by Article 14, paragraph 1, of the Convention had been complied with.
21. The Court nonetheless considers it necessary to deal briefly with these
arguments. It observes that in the present case the Respondent has always
maintained that the destruction of the Pan Am aircraft over Lockerbie did not
give rise to any dispute between the Parties regarding the interpretation or
application of the Montreal Convention, and that, for that reason, in the
Respondent's view, there was nothing to be settled by negotiation under the
Convention; the Court notes that the arbitration proposal contained in the
letter sent on 18 January 1992 by the Libyan Secretary of the People's Committee
for Foreign Liaison and International Cooperation to the Minister for Foreign
Affairs of the United Kingdom met with no answer; and it notes, in particular,
that the Respondent clearly expressed its intention not to accept arbitration -
in whatever form - when presenting and strongly supporting resolution 731 (1992)
adopted by the Security Council three days later, on 21 January 1992.
Consequently, in the opinion of the Court the alleged dispute between the Parties could not be settled by negotiation or submitted to arbitration under the Montreal Convention, and the refusal of the Respondent to enter into arbitration to resolve that dispute absolved Libya from any obligation under Article 14, paragraph 1, of the Convention to observe a six-month period starting from the request for arbitration, before seising the Court.1
|1||Cf. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, pp. 121-122, 17-20.|