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World Court Digest



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

¤ 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.

1Cf. 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.
2Cf. 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.
3Cf. 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.