Summaries of the Decisions
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom) and
(Libyan Arab Jamarhiriya v. United States of America)
Requests for the Indication of Provisional Measures,
Orders of 14 April 1992
On 3 March 1992, the Socialist People's Libyan Arab Jamahiriya filed in the
Registry of the Court two separate Applications instituting proceedings against
the United Kingdom and the United States of America in respect of a dispute
concerning the interpretation and application of the 1971 Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. The
dispute arose from the crash of Pan-Am flight 103 at Lockerbie (United Kingdom)
on 21 December 1988, an incident caused by a bomb placed aboard the Pan-Am
flight. As a result of subsequent police investigations, the Lord Advocate of
Scotland and a Grand Jury of the United States charged two Libyan nationals with
having caused the explosion, which led to the crash and the death of several
hundred persons in its wake. Libya contended that, by pressuring Libya to
surrender the two Libyan nationals for trial in the United Kingdom or the United
States, while at the same time rejecting the Libyan efforts to resolve the
matter within the framework of international law, the two respondent states were
violating the Montreal Convention, in particular, those provisions dealing with
jurisdiction and prosecution of terrorist acts.
On the same day as the Applications were filed, Libya made two separate
requests to the Court to order provisional measures enjoining the United Kingdom
and the United States, respectively, from taking any action against Libya
calculated to coerce or compel Libya to surrender the accused individuals to any
jurisdiction outside Libya. Libya also requested the Court to ensure by
provisional measures that no steps were taken that would prejudice in any way
the rights of Libya with respect to the legal proceedings that were the subject
of Libya's Applications. The two respondent states objected to the requests.
In its order of 14 April 1992, the Court found, by 11 votes to 5, that the
circumstances of the case were not such as to require the exercise of its power
under Article 41 of the Statute to indicate provisional measures. The Court
referred to UN Security Council resolution 731 of 21 January 1992 and, in
particular, to Security Council resolution 748 of 31 March 1991. In that
resolution it had been decided, in accordance with Chapter VII of the Charter,
that the Libyan Government must: comply with the requests of the United Kingdom
and the United States to surrender for trial all those charged with the
Lockerbie crime; accept responsibility for the actions of Libyan officials;
disclose all it knows of the crime, and allow full access to all witnesses,
documents and other material evidence; pay appropriate compensation. Resolution
748 also had decided "that the Libyan Government must commit itself
definitively to cease all forms of terrorist action and all assistance to
terrorist groups and that it must promptly, by concrete actions, demonstrate its
renunciation of terrorism". Otherwise, a whole range of sanctions imposing
an economic embargo against Libya had to be adopted by all States.
The Court in its decision referred to the fact that both sides, as members
of the United Nations, are obliged to accept and carry out the decisions of the
Security Council, and that prima facie this obligation extends to the decision
contained in resolution 748 (1992). The Court also stressed that, in accordance
with Article 103 of the Charter, the obligations of the Parties in that respect
prevail over their obligations under any other international agreement,
including the Montreal Convention. The Court, while not required at this stage
to determine definitively the legal effect of Security Council resolution 748
(1992), declared that, regardless of the situation prior to the adoption of that
resolution, the rights claimed by Libya under the Montreal Convention could not
at this point be regarded as appropriate for protection by the indication of
provisional measures.
The Court added also that an indication of provisional measures would likely
impair the rights which appear prima facie to be enjoyed by the United Kingdom
and the United States by virtue of Security Council resolution 748 (1992). On
the other hand, the Court's decision not to indicate provisional measures in no
way prejudiced any other question raised by the parties, and left unaffected
their rights to submit arguments in respect of any of these questions.
