1 Article 14(1) reads:

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.

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564.

2 See Judgment, Libya v. U.S., paras. 20–21 [hereinafter slip op.].

3 Id., paras. 33–35.

4 In the two Orders that the Court issued in response to Libya’s request for provisional measures, it observed that both Libya and the respondent states, as member states of the United Nations, are obliged to accept and carry out resolutions issued by the UN Security Council in accordance with Article 25 of the Charter. Moreover, the Court pointed out 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.” See 1992 ICJ Rep. 3, 15, para. 39 (Libya v. UK), and 1992 ICJ Rep. 114, 126, para. 42 (Libya v. U.S.) (Orders of Apr. 14).

5 Slip op., para. 37 (citing Nottebohm (Liechtenstein v. Guat), Preliminary Objection, 1953 ICJ Rep. 111, 122 (Nov. 18), and Right of Passage over Indian Territory (Port. v. India), Preliminary Objections, 1957 ICJ Rep. 125, 142 (Nov. 26)).

6 The vote was 13–3 in Libya v. UK (President Schwebel, Judge Oda and Judge ad hoc Jennings dissenting), and 13–2 in Libya v. U.S. (President Schwebel and Judge Oda dissenting). Judge Oda pointed out in his dissenting opinion that it was only in Libya’s letter of January 18, 1992, to the respondents that the Montreal Convention was mentioned, which letters had met with no response by the time Libya filed its Applications. Hence, he wondered, how could there be a “dispute” under the Montreal Convention at the time of the filing of the Applications? President Schwebel and Judge ad hoc Jennings stated in their dissenting opinions that none of the provisions of the Montreal Convention invoked by Libya impose obligations on the respondent states in the circumstances of this case and that, if any dispute exists, it is between Libya and the Security Council as a whole, not over the Montreal Convention, but over the legality of the Council’s adoption of certain resolutions.

7 For SC Res. 731 and 748, respectively, see UN SCOR, 47th Sess., Res. at 51, 52, UN Doc. S/INF/48 (1992), 31 ILM 732, 750 (1992). For SC Res. 883, see UN SCOR, 48th Sess., Res. at 113, UN Doc. S/INF/49 (1993).

8 Slip op., paras. 40–41.

9 Id., para. 43.

10 The vote was 12–4 in Libya v. UK (President Schwebel, Judges Oda and Herczegh, and Judge ad hoc Jennings dissenting) and 12–3 in Libya v. U.S. (President Schwebel and Judges Oda and Herczegh dissenting). As President Schwebel rightly pointed out in his dissenting opinion, there appears to be an inconsistency in the Court’s present holding in that

the whole basis on which the Court in 1992 proceeded in approving its Order rejecting the provisional measures sought by Libya was that of the applicability, as of the date of its Order, of Security Council resolution 748, adopted after the date of the filing of Libya’s Application and Libya’s request for the indication of provisional measures.

11 Slip, op., para. 49. Interestingly, this test is practically identical to that used by the Court in administering the “necessary third-party” rule. See East Timor (Port. v. Austl.), 1995 ICJ Rep. 90 (June 30), and my analysis at 90 AJIL 94, 95 (1996).

12 The vote was 10–6 in Libya v. UK (President Schwebel, Judges Oda, Guillaume, Herczegh and Fleischhauer and Judge ad Aocjennings dissenting), and 10–5 in Libya v. U.S. (President Schwebel and Judges Oda, Guillaume, Herczegh and Fleischhauer dissenting). In their joint declaration, Judges Bedjaoui, Ranjeva and Koroma explained their view that this holding means that it is not sufficient to invoke Chapter VII provisions of the UN Charter so as to bring to an end, ipso facto and with immediate effect, all argument on the decisions of the Security Council. By contrast, Judges Guillaume and Fleischhauer stated in their joint declaration that the objection based on mootness did have an exclusively preliminary character, which the Court could and should have decided on. Judge Herczegh went one step further in his declaration, expressing his view that the objection was exclusively preliminary and should have been upheld to reject the Libyan claim. The other dissenting judges reached similar conclusions.

13 See 1992 ICJ Rep. 3 (Libya v. UK), and 1992 ICJ Rep. 114 (Libya v. U.S.) (Apr. 14).

14 Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri (appointed by Libya) appended dissenting opinions to the 1992 Orders. Judge Ajibola retired from the Court in 1994. For the grounds of the dismissal, see supra note 4. Only Judges Schwebel, Weeramantry, Oda, Bedjaoui, Guillaume and Ranjeva (together with Judge ad Aocjennings in the Libya v. UK case), who were on the bench in 1992, were still Members of the Court in 1998, making this a rather different Court. Half of these six remaining judges dissented in 1992.

15 See slip op., Separate Opinion of Judge Kooijmans, para. 8.

16 The dissenting judges also believed that there was nothing contrary to the Montreal Convention in the respondents’ requesting Libya to extradite the two Libyan suspects. The Convention is silent on the issue of priority or exclusivity of jurisdiction. See also Sami, Shuber, The contribution of the International Court of Justice to air law , in Fifty Years of the International Court of Justice 316, 325 (Vaughan, Lowe & Malgosia, Fitzmaurice eds., 1996)Google Scholar.

17 Judge ad hoc Jennings gave expression to the feeling of confusion among the general public caused by these cases, when he stated that it

is indeed ironic that the jurisdictional clause of a Convention whose whole purpose is to control international terrorism over aircraft, should be thus employed, it seems successfully, to afford protection to persons alleged to have been involved in such terrorism who are nationals and officials of a State also alleged itself to have been thus involved.

Slip op., Dissenting Opinion of Judge Jennings.

18 The ICJ has ordered a formal joinder of the proceedings in two cases only: South West Africa and North Sea Continental Shelf. The arguments that dissenting Judges Forster, Gros, Petren and Ignacio-Pinto advanced in favor of a formal joinder of the Nuclear Tests cases all appear to be applicable here. See Nuclear Tests (NZ v. Fr.), 1973 ICJ Rep. 135, 148, 149, 159, 163 (Order of June 22).

19 For a detailed appraisal of the U.S. involvement in ICJ cases, see Keith, Highet, Winning and Losing: The Commitment of the United States to the International Court—What Was It, What Is It and Where Has It Gone? 1 Transnatl L. & Contemp. Prob. 157 (1991)Google Scholar.

20 1988 ICJ Rep. 12 (Advisory Opinion of Apr. 26). See the case note by Paul C. Szasz in Commentaries on World Court Decisions (1987–1996) at 53 (Peter H. F. Bekker ed., 1998).

21 1989 ICJ Rep. 15 (July 20), summarized in 84 AJIL 249 (1990).

22 Summarized in 91 AJIL 518 (1997).