International Court of Justice Upholds its Jurisdiction in Lockerbie Cases

Pieter H.F. Bekker
March 20, 1998
On February 27, 1998, the International Court of Justice ruled that it has jurisdiction in the two cases brought by Libya against the United Kingdom and the United States, respectively, on March 3, 1992. The Court will proceed to consider the merits of the cases arising out of the crash, on December 21, 1988, of PanAm Flight 103 over Lockerbie, Scotland. The incident, which claimed 270 lives, allegedly was caused by two Libyan terrorists, who were indicted by a Grand Jury of the District of Columbia in November 1991. Subsequent to the incident, the UN Security Council, of which the United Kingdom and the United States are permanent members, adopted several resolutions demanding that Libya surrender the two accused for trial outside Libya and imposing economic sanctions against Libya. Libya claims that it has complied with the only treaty applicable between the parties, the "Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation" of September 23, 1971, but that the United States is violating that treaty and is seeking to prevent its application. The Montreal Convention imposes on a state in whose territory an alleged offender is found the obligation to either prosecute such person before its domestic courts or to extradite him. Libya claims that it has submitted the two accused Libyans to its competent authorities to be prosecuted under Libyan law, in accordance with the Montreal Convention, and that the Libyan Constitution does not permit their extradition. 
This discussion will focus on the case involving the United States as Respondent. The judgments in the two separate cases are, for all practical purposes, identical. 
The Libyan Application invoked Article 14, paragraph 1, of the Montreal Convention as the basis for the Court's jurisdiction. That provision reads as follows: 
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.
Libya has asked the Court to declare that it has complied fully with its obligations under the Montreal Convention, that the United States has breached a number of provisions of the treaty, and that the United States must cease and desist from such breaches and from the threat or use of force against Libya designed to compel it to surrender the two Libyan nationals for trial in the U.S. 
On June 20, 1995, the United States filed Preliminary Objections alleging that (1) the Court lacked jurisdiction; (2) the Libyan Application was inadmissible; and (3) the Libyan claims had become moot as having been rendered without object. Under the Rules of Court, the filing of Preliminary Objections results in the automatic suspension of the main proceedings and the Court must rule on such objections before the case can proceed. 
(1) The Court's Jurisdiction  
The United States claimed that the conditions of Article 14 of the Montreal Convention had not been complied with by Libya, first of all because no legal dispute existed between the parties, in any event not one concerning the interpretation or application of the Montreal Convention. In its view, the Montreal Convention was not relevant because, instead of there being bilateral differences, the case was one of a threat to international peace and security resulting from state-sponsored terrorism. Libya, on the other hand, maintained that the Montreal Convention was the only instrument applicable to the PanAm disaster and that the United States was attempting to prevent its application. 
The Court considered that Libya had complied with Article 14 of the Montreal Convention and that its claim was positively opposed by the U.S. claim. In the Court's view, a dispute exists between the parties as to whether the destruction of the PanAm aircraft is governed by the Montreal Convention, which is for the Court to decide. Apart from this general dispute, the Court also found that specific disputes exist concerning certain provisions of the Montreal Convention relating to the place of prosecution (Article 7) and to assistance in connection with criminal proceedings (Article 11). 
The Court found that it can decide, on the basis of Article 14 of the Montreal Convention, on the lawfulness of the U.S. actions criticized by Libya, insofar as those actions violate the Convention. 
The United States claimed also that, even if the Montreal Convention did confer on Libya the rights it claims, those rights could not be exercised because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of the UN Charter, have priority over all rights and obligations arising out of the Montreal Convention. In any event, the adoption of those resolutions meant that the only dispute that might exist is between Libya and the Security Council as a whole, falling outside Article 14(1) of the Montreal Convention. But the Court pointed out that both resolutions were adopted after the date on which Libya filed its Application. On that date, which alone is relevant, the Court had jurisdiction. 
Consequently, the Court, by 13 votes to 2, rejected the U.S. objections to jurisdiction and found that it has jurisdiction on the basis of Article 14(1) of the Montreal Convention. 
(2) The Admissibility of Libya's Application   
The United States argued that, by bringing its case before the Court, Libya was endeavoring to undo the actions taken by the Security Council under resolutions 731 (1992), 748 (1992) and 883 (1993), and that Libya's claims under the Montreal Convention were superseded by those resolutions, which alone defined the obligations of the parties. But Libya argued that the Court must interpret those resolutions in accordance with the UN Charter and that the Charter prohibits the Security Council from requiring Libya to surrender its nationals to the United Kingdom or the United States. In any event, the U.S. arguments based on the UN Charter raised problems that did not possess an exclusively preliminary character and should thus be decided in the merits phase of the dispute. 
The Court agreed with Libya that the critical date for determining the admissibility of an application is the date on which it is filed, in this case March 3, 1992. Resolutions 748 and 883 were adopted after March 3, 1992, and resolution 731, although adopted before the application was filed, was a mere recommendation without binding effect. Consequently, the Court, by 12 votes to 3, rejected the U.S. objection to admissibility derived from Security Council resolutions 748 and 883 and found that the Libyan Application is admissible. 
(3) The objection that intervening Security Council resolutions have rendered the Libyan claims without object.  
The United States argued that the Libyan claims had been rendered moot, and Libya had been precluded from obtaining the relief it seeks, by the subsequent adoption of Security Council resolutions 748 (1992) and 883 (1993). The effect of these binding resolutions was that any judgment on Libya's claims would be devoid of practical purpose. 
The Court agreed with the United States that events subsequent to the filing of an application may render it without object, precluding a case from being adjudicated on the merits. It determined that the U.S. objection qualified as a "preliminary objection" under Article 79(1) of the Rules of Court. However, Libya and the United States differed on the question of whether the U.S. objection was of an "exclusively" preliminary character under Article 79(7) of the Rules of Court. The Court pointed out that objections are not "exclusively" preliminary, and hence will have to be dealt with at the merits stage, if they contain both preliminary aspects and other aspects relating to the merits. The Court considered that Libya's rights on the merits would not only be affected by a decision not to proceed to judgment on the merits, but would constitute, in many respects, the very subject-matter of that decision. In this light, the U.S. objection is inextricably interwoven, or at least closely interconnected, with the merits. 
Finally, the Court dismissed the U.S. request to resolve the case in substance at the preliminary stage by deciding that the relief sought by Libya is precluded. The Court pointed out that, by raising Preliminary Objections, the United States made a procedural choice leading to the automatic suspension of the proceedings on the merits pursuant to the Rules of Court. 
The Court declared, by 10 votes to 5, that the U.S. objection according to which Libya's claims became moot because Security Council resolutions 748 and 883 rendered them without object, does not, in the circumstances of the case, have an exclusively preliminary character, and can be considered at the merits stage. 
The Court will fix a new time limit for the submission of a Counter-Memorial by the United States. The Court's preliminary ruling leaves unaffected any defenses on the merits that the United States may wish to advance in the subsequent written proceedings and hearings on the merits of the case. 
The full text of the decision may be found on the Internet at: 
Peter H.F. Bekker, Ph.D.McDermott, Will & Emery New York, NY