III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.5. | Jurisdiction on the Basis of Treaties |
2.5.3. | Specific Treaties |
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Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya / United Kingdom),
Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 3
[p. 23 Decl. Ni 1] In determining whether the Court should or
should not grant relief now to the Applicant, the Court should first decide on
this temporal question of the six-month period for organizing arbitration. The
period thus provided cannot be ignored at the pleasure of either Party. There
has been no refusal to arbitrate on the part of the Respondents. No negotiation
has yet been conducted for this purpose between the Parties. It is clear that,
since the Applicant's letter of 18 January 1992 requesting agreement to
arbitrate, the six-month period has not yet run out. It is premature for the
Applicant to seek a legal remedy now from this Court. This is the threshold
question which must first be solved before any other question can be decided
upon.
I agree with the majority that the request for provisional measures should
be denied. But I consider that it should be denied on the sole ground of
non-fulfilment of the temporal requirement provided in Article 14 (1) of the
1971 Montreal Convention without having to decide at the same time on the other
issues, such as the existence of rights claimed by the Applicant, irreparable
damage, urgency, etc. Consequently, in my view the Applicant will not be
prevented from seeking a remedy of this Court in accordance with the provisions
of the 1971 Montreal Convention, if the dispute months later still subsists and
if the Applicant so desires.
[pp. 36-37 D.O. Bedjaoui 2] 9. Article 14, paragraph 1, of the
1971 Montreal Convention subjects the possibility of seising the Court to the
fulfilment of a second and prior requirement, by virtue of which Libya would
have had to await the expiration of a six-month time-limit during which it had
to seek a settlement of the dispute by means of arbitration. There are several
reasons why in the present case this requirement does not stand in the way of
the Court being seised. It should first be noted that in response to the request
for arbitration made by Libya the Permanent Representative of the United Kingdom
to the United Nations stated that that request was "not relevant",
since this makes it obvious that the decision by the United Kingdom and the
United States to bring the matter to the Security Council so as to obtain from
it a political solution foreclosed, from the outset, any possibility of an
arbitral solution. The request for arbitration therefore appeared to be
fundamentally inappropriate and inconsistent with the political measures which
the Security Council was expected to take and were later taken. Accordingly
arbitration was inherently and as a matter of principle ruled out, no matter how
long Libya were to wait. The six-month time-limit was altogether meaningless
inasmuch as it was inconsistent with the type of political settlement chosen by
the two Respondent States, seeing that they opted for submission of the matter
to the Security Council last January. The United Kingdom's characterization of
arbitration as "not relevant" is not merely a rejection of this mode
of settlement, but a categorical assertion of the inherent incompatibility
between the arbitration requested and the political solution involving sanctions
that was expected from the Security Council. And the fact that Libya
subsequently made new proposals other than arbitration is less a sign of a
certain inconsistency than an indication of the impossibility of arbitration, an
impossibility of which Libya thus took note. Moreover Article 14, paragraph 1,
of the 1971 Montreal Convention provides that it is "within six
months" following the date of the request for arbitration that the Court
may be seised at the instance of either one of the Parties. This means that it
is not necessary to wait until this time-limit has expired completely, but that,
on the contrary, it is possible to seise the Court "during" this
six-month period, or "within" or "in the course of" the
period and never after its expiration. Libya is accordingly entitled to apply to
the Court at any time prior to the expiration of the six-month time-limit. Thus
the ratione temporis requirement laid down in the Convention should be
interpreted in favour of Libya, both at the level of a literal interpretation of
the text and by reference to its spirit and its purpose, on the one hand, and
the context of this case, on the other.
[pp. 108-109 D.O. El-Kosheri 3] 53. Recalling the famous dictum of
the Permanent Court of International Justice in the Mavrommatis Palestine
Concessions (P.C.I.J., Series A, No. 2, p. 13), the Court's Order in
the case concerning United States Diplomatic and Consular Staff in Tehran
(I.C.J. Reports 1979, pp. 32-34, paras. 52-56), and taking into account
all the relevant circumstances as reflected in the documents submitted by the
Parties, I am of the opinion that it would be safe to conclude that the United
Kingdom and the United States were not at any time, whether before or after
seising the Security Council, interested in settling the dispute through
negotiations or through recourse to arbitration. The Libyan notes of 8 January
and 17 January 1992 were totally ignored, rendering those two methods of
peaceful settlement practically useless and inoperative. Thus there was no
meaningful reason to wait for the lapse of the six-month period, particularly
when the wording of "within" or "dans" which figures in the
text of Article 14, paragraph 1, of the Montreal Convention does not clearly
render this time element a mandatory requirement which bars recourse to the
Court before its expiration.
1 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 135. |
2 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, pp. 146-147. |
3 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 213-214. |