4
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
of Yugoslavia (Serbia and Montenegro) – “the FRY” – designed to address
the armed conflict and human rights violations taking place there.
15. In January 1993 the applicant company began discussions with
TEAM Aer Lingus (“TEAM”) with a view to having maintenance work
(“C-Check”) done on one of its leased aircraft. TEAM was a limited
liability company whose principal business was aircraft maintenance. It was
a subsidiary of two Irish airline companies wholly owned by the Irish State.
Memoranda dated 8 and 18 January 1993 showed that TEAM considered,
on the basis of information obtained, that the applicant company was not in
breach of the sanctions regime, noting that it was doing business with many
companies, including Boeing, Sabena and SNECMA (a French aero-engine
company). By a letter of 2 March 1993, TEAM requested the opinion of the
Department of Transport, Energy and Communications (“the Department of
Transport”) and included copies of its memoranda of January 1993. On
3 March 1993 the Department of Transport forwarded the request to the
Department of Foreign Affairs.
16. On 17 April 1993 the United Nations Security Council adopted
Resolution 820 (1993), which provided that States should impound, inter
alia, all aircraft in their territories “in which a majority or controlling
interest is held by a person or undertaking in or operating from the [FRY]”.
That resolution was implemented by Regulation (EEC) no. 990/93, which
came into force on 28 April 1993 (see paragraph 65 below).
17. On 5 May 1993 the Department of Foreign Affairs decided to refer
the matter to the United Nations Sanctions Committee.
18. By a letter of 6 May 1993, the Turkish Foreign Ministry indicated to
the Turkish Ministry of Transport that it considered that the leased aircraft
were not in breach of the sanctions regime and requested flight clearance
pending the Sanctions Committee's decision. On 12 May 1993 Turkey
sought the opinion of the Sanctions Committee.
C. The impounding of the aircraft
19. On 17 May 1993 one of the applicant company's leased aircraft
arrived in Dublin. A contract with TEAM was signed for the completion of
C-Check.
20. On 18 May 1993 the Irish Permanent Mission to the United Nations
indicated by facsimile to the Department of Transport that informal advice
from the Secretary to the Sanctions Committee was to the effect that there
was no problem with TEAM carrying out the work, but that an “informal
opinion” from the “legal people in the Secretariat” had been requested. On
19 May 1993 the Department of Transport explained this to TEAM by
telephone.
21. On 21 May 1993 the Irish Permanent Mission confirmed to the
Department of Foreign Affairs that the “informal legal advice” obtained