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World Court Digest

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.