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| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/ Determination of the Existence of a Dispute |
¤
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
[pp. 17-18] 22. As recalled by the Parties, the Permanent Court of International Justice stated in 1924 that "[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons" (Mavrommatis Palestine Concessions, 1924, P.C.I.J. Series A, No. 2, p. 11). The present Court for its part, in its Judgment of 30 June 1995 in the case concerning East Timor (Portugal v. Australia), emphasized the following:
23. In its Application and Memorial, Libya maintained that the Montreal Convention was the only instrument applicable to the destruction of the Pan Am aircraft over Lockerbie, for the following reasons:
| (a) | the Respondent and Libya are bound by the Montreal Convention which is in force between the Parties; |
| (b) | the Montreal Convention is specifically aimed at preventing that type of action (third paragraph of the Preamble); |
| (c) | the actions ascribed to the Libyan nationals are covered by Article 1 of the Montreal Convention; |
| (d) | "the system of the Montreal Convention, as compared to the system of the Charter, is both a lex posterior and a lex specialis; consequently, for matters covered by that Convention, it must a priori take precedence over the systems for which the Charter provides"; and |
| (e) | there is no other convention concerning international criminal law in force which is applicable to these issues in the relations between Libya and the United Kingdom. |
24. The United Kingdom does not deny that, as such, the facts of the case could fall within the terms of the Montreal Convention. However, it emphasizes that, in the present case, from the time Libya invoked the Montreal Convention, the United Kingdom has claimed that it was not relevant as the question to be resolved had to do with "the ... reaction of the international community to the situation arising from Libya's failure to respond effectively to the most serious accusations of State involvement in acts of terrorism".
25. Consequently, the Parties differ on the question whether the destruction of the Pan Am aircraft over Lockerbie is governed by the Montreal Convention. A dispute thus exists between the Parties as to the legal regime applicable to this event. Such a dispute, in the view of the Court, concerns the interpretation and application of the Montreal Convention, and, in accordance with Article 14, paragraph 1, of the Convention, falls to be decided by the Court.1
[pp. 22-23] 30. Furthermore, Libya maintained in its Application and Memorial that, once it had commenced its judicial investigation of the two alleged offenders, the Respondent was, according to Article 11, paragraph 1, of the Montreal Convention, under an obligation to hand over to the Libyan authorities all the evidence in its possession regarding the offence. In Libya's opinion, this obligation was not duly complied with, because the United Kingdom only transmitted "a copy of the statement of the facts" against the accused, a document that "contains no evidence of which the Libyan judiciary could make use".
31. In this connection, the United Kingdom acknowledges that "Article 11, paragraph 1, differs from the other provisions on which Libya has relied, in that it does impose obligations on other States" and "is thus capable, in the abstract, of giving rise to a dispute between Libya and the United Kingdom". However, it maintains that it did not violate this provision, and claims in particular that it "provided Libya with copies of the Scottish charges, the warrant for the arrest of the accused and the Statement of Facts prepared by the Lord Advocate". It also recalls that at the time when Libya presented its claims, Libya had not - any more than had the United Kingdom - invoked the Montreal Convention, and it concluded that, "For the failure of the United Kingdom to supply further information to Libya to constitute a violation of Article 11, the Convention must at least have been invoked by one of the States concerned."
32. Article 11 of the Montreal Convention is worded as follows:
"Article 11
1. Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences. The law of the State requested shall apply in all cases.
2. The provisions of paragraph 1 of this Article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters."
33. Having taken account of the positions of the Parties as to the duties imposed by Article 11 of the Montreal Convention, the Court concludes that there equally exists between them a dispute which concerns the interpretation and application of that provision, and which, in accordance with Article 14, paragraph 1, of the Convention, falls to be decided by the Court2.
| 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. 122-123, 21-24. |
| 2 | 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. 127-128, 29-32. |
