1992

ICJ

Case concerning questions of interpretation & application of the Montreal convention arising out aerial incident at Lockerbie Libya v UK Provisional measures

In 1988 Pan Am flight 103 from Frankfurt to NY, via London exploded over Scotland. In 1991 a warrant was issued in Scotland for the arrest of two officers in the Libyan intelligence service. Libya response was to take steps to prosecute in its own courts. At the request of the US, UK and France in 1992 the Security council resolution 731, stated that failure to renounce to terrorism constituted a threat to international peace and security, and ‘urged’ Libya to respond to the request of those states to extradite two Libyan nationals for trial in Scotland. Libya asked the court to declare that 1. it had complied with its obligations under the Montreal convention by taking steps to investigate and prosecute [aut dedere aut udicare principle, either extradite or try, Libyan law prohibited extradition of nationals] 2. UK has breached the convention by seeking to force Libya to return the alleged offenders and not providing assistance for the Libyan government. Libya asked for interim measures of protection: not to surrender the accused individuals to any other jurisdiction but Libya The same day Libya instituted proceedings the SC issued resolution 748, under chapter VII, requiring Libya (on grounds of terrorism) to return the offenders and imposed sanctions Jurisdiction: 14 Montreal Convention: ‘any dispute concerning the interpretation or application of this convention, which cannot be settled through negotiation, shall, at the request of one party, be submitted to arbitration. If within 6 months of the request unable to agree, ICJ’

Court did not order interim measure because 748 res. In particular because UN members are obligated to accept decision of SC in accordance with art 25. And 103 UN those obligations prevail over any other international agreement, including Montreal convention. Notwithstanding that there is not hierarchy between the court and the Security council (41) PM requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by UK by virtue of res 748 Besides rights claimed by Libya are not regarded as appropriate for protection by provisional measures. Dissenting of Weeramantry: The Court acts as guardian of the Charter and IL, there is no higher body with judicial functions and determinations of interpretation and application of IL. Art 24 gives the SC primary responsibility for the maintenance of peace, 25 members agree to accept its decisions, 103 priority of UN over any other International agreement, but that does not mean SC discharges its functions free of limitations, 24.2 it shall act in accordance with the purposes and principles of UN Separate of Shahabuddeen: There is no imposition of superior authority, but in finding the applicable law the court must take into account of resolution of SC in so far as it affects the enforceability of the rights for the protection of which Libya is seeking interim measures. The validity of the resolution, at this stage, must be presumed. Treaty obligation may be overriding by decisions of SC imposing sanctions By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States of America on the other, notified the Court that they had "agreed to discontinue with prejudice the proceedings".