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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
(Libya v. United Kingdom) Preliminary
Objections, Judgment of 27 February 1998
I.C.J. Reports 1998, p. 9

[pp. 16-17] 18. Libya submits that the Court has jurisdiction on the basis of Article 14, paragraph 1, of the Montreal Convention, which provides that:

"Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court."

19. The Parties agree that the Montreal Convention is in force between them and that it was already in force both at the time of the destruction of the Pan Am aircraft over Lockerbie, on 21 December 1988, and at the time of filing of the Application, on 3 March 1992. However, the Respondent contests the jurisdiction of the Court because, in its submission, all the requisites laid down in Article 14, paragraph 1, of the Montreal Convention have not been complied with in the present case.

20. The Respondent expressly stated that it did not wish to contest the jurisdiction of the Court on all of the same grounds it had relied upon in the provisional measures phase of the proceedings, and restricted itself to alleging that Libya had failed to show, first, that there existed a legal dispute between the Parties and second, that such dispute, if any, concerned the interpretation or application of the Montreal Convention and fell, as a result, within the terms of Article 14, paragraph 1, of that Convention. Consequently, the United Kingdom did not, in the present phase of the proceedings, reiterate its earlier arguments as to whether or not the dispute that, in the opinion of Libya, existed between the Parties could be settled by negotiation; whether Libya had made a proper request for arbitration; and whether the six-month period required by Article 14, paragraph 1, of the Convention had been complied with.

21. The Court nonetheless considers it necessary to deal briefly with these arguments. It observes that in the present case the Respondent has always maintained that the destruction of the Pan Am aircraft over Lockerbie did not give rise to any dispute between the Parties regarding the interpretation or application of the Montreal Convention, and that, for that reason, in the Respondent's view, there was nothing to be settled by negotiation under the Convention; the Court notes that the arbitration proposal contained in the letter sent on 18 January 1992 by the Libyan Secretary of the People's Committee for Foreign Liaison and International Cooperation to the Minister for Foreign Affairs of the United Kingdom met with no answer; and it notes, in particular, that the Respondent clearly expressed its intention not to accept arbitration - in whatever form - when presenting and strongly supporting resolution 731 (1992) adopted by the Security Council three days later, on 21 January 1992.
Consequently, in the opinion of the Court the alleged dispute between the Parties could not be settled by negotiation or submitted to arbitration under the Montreal Convention, and the refusal of the Respondent to enter into arbitration to resolve that dispute absolved Libya from any obligation under Article 14, paragraph 1, of the Convention to observe a six-month period starting from the request for arbitration, before seising the Court.1

[p. 23] 34. Libya, in the latest version of its submissions, finally asks the Court to find that

"the United Kingdom is under a legal obligation to respect Libya's right not to have the [Montreal] Convention set aside by means which would in any case be at variance with the principles of the United Nations Charter and with the mandatory rules of general international law prohibiting the use of force and the violation of the sovereignty, territorial integrity, sovereign equality and political independence of States."

35. The United Kingdom maintains that it is not for the Court, on the basis of Article 14, paragraph 1, of the Montreal Convention, to decide on the lawfulness of actions which are in any event in conformity with international law, and which were instituted by the Respondent to secure the surrender of the two alleged offenders. It concludes from this that the Court lacks jurisdiction over the submissions presented on this point by Libya.

36. The Court cannot uphold the line of argument thus formulated. Indeed, it is for the Court to decide, on the basis of Article 14, paragraph 1, of the Montreal Convention, on the lawfulness of the actions criticized by Libya, in so far as those actions would be at variance with the provisions of the Montreal Convention.2

[pp. 65-66 D.O. Schwebel] The Respondent has not disputed Libya's obligation to prosecute the accused under Article 7 if Libya does not extradite them. It rather maintains that Libya is obliged by the supervening resolutions of the Security Council to surrender the accused for trial in the United States or the United Kingdom. Libya challenges this reading of the resolutions of the Security Council and contends that, if it is the right reading, the resolutions of the Security Council are unlawful and ultra vires. That is to say, there is no dispute between the Parties in this regard under Article 7 Of the Montreal Convention. There is a dispute over the meaning, legality and effectiveness of the pertinent resolutions of the Security Council. The latter dispute may not be equated with the former. Consequently it does not fall within the jurisdiction of the Court under Article 14 of the Montreal Convention, which confines the Court's jurisdiction to "Any dispute between two or more Contracting States concerning the interpretation or application of this Convention ...". Libya's complaint that the Security Council has acted unlawfully can hardly be a claim under the Montreal Convention falling within the jurisdiction of the Court pursuant to that Convention.3

[pp. 89-90 D.O. Oda] 22. Thus conceived, the question relating to the United Kingdom's demand that Libya surrender the two suspects and Libya's refusal to accede to that demand is not a matter of rights or legal obligation concerning the extradition of accused persons between the United Kingdom and Libya under international law nor is it a matter falling within the provisions of the Montreal Convention. Or, at least, there is no legal dispute between Libya and the United Kingdom concerning the interpretation or application of the Montreal Convention which could have been brought to arbitration or to the Court.

If there is any difference between them on this matter, that could simply be a difference between their respective policies towards criminal justice in connection with the question of which State should properly do justice on the matter. That issue does not fall within the ambit of the Montreal Convention.

From the outset, no dispute has existed between Libya and the United Kingdom "concerning the interpretation or application of the [Montreal] Convention" as far as the demand for the surrender of the suspects and the refusal to accede to that demand - the main issue in the present case - are concerned. Libya neither presented any argument contrary to that viewpoint nor proved the existence of such a legal dispute.

[p. 100 D.O. Jennings] There is here no dispute under the Convention because the United Kingdom has not sought to dispute that Libya has complied with all its obligations under the Convention. There was nothing contrary to the Convention in the United Kingdom's requesting the extradition of the two suspects. Nor is there any dispute that, under the terms of the Montreal Convention, Libya is justified in exercising its own criminal jurisdiction provided for by that Convention. The United Kingdom contention in this case is that Libya is not now justified in exercising that jurisdiction in so far as to do so would be contrary to decisions of the Security Council made under Chapter VII of the Charter; that is not a matter arising under the provisions of the Convention but one concerning the interpretation or application of the United Nations Charter; and to pretend that it is one that comes within Article 14, paragraph 1, of the Convention is not free from absurdity.

1Cf. 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.121-122, 17-20.
2Cf. 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, p. 128, 33-35.
3See, mutatis mutandis, 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, I.C.J. Reports 1998, p. 115.