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[p.114]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court, and to
Articles 73 and 74 of the Rules of Court, [p 115]
Having regard to the Application by the Socialist People's Libyan Arab
Jamahiriya (hereinafter called "Libya") filed in the Registry of the Court
on 3 March 1992, instituting proceedings against the United States of
America (hereinafter called "the United States") in respect of "a dispute
... between Libya and the United States over the interpretation or
application of the Montreal Convention" of 23 September 1971, a dispute
arising from acts resulting in the aerial incident that occurred over
Lockerbie, Scotland, on 21 December 1988;
Makes the following Order:
1. Whereas by its above-mentioned Application Libya founds the jurisdiction
of the Court on Article 36, paragraph 1, of the Statute of the Court and
Article 14, paragraph 1, of the Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation done at Montreal on 23 September
1971 (referred to hereinafter as the "Montreal Convention"), instruments to
which Libya and the United States are both parties;
2. Whereas in its Application Libya refers to the destruction of Pan Am
flight 103 on 21 December 1988 over Lockerbie, in Scotland; whereas in its
Application Libya further states that
"On 14 November 1991, a Grand Jury of the United States District Court for
the District of Columbia, United States of America, indicted two Libyan
nationals (the 'accused') charging, inter alia, that they had caused a bomb
to be placed aboard [that flight] ... which bomb had exploded causing the
aeroplane to crash";
and whereas Libya also refers, in this connection, to Article 1 of the
Montreal Convention, contending that the acts alleged by the indictment
constitute an offence within the meaning of that provision;
3. Whereas, in its Application, Libya claims that the Montreal Convention is
the only appropriate convention in force between the Parties dealing with
such offences, and that the United States is bound by its legal obligations
under the Montreal Convention, which require it to act in accordance with
the Convention, and only in accordance with the Convention, with respect to
the matter involving Pan Am flight 103 and the accused;
4. Whereas, in its Application, Libya submits that, while it has itself
fully complied with all of its own obligations under the Montreal
Convention, the United States has breached and is continuing to breach its
obligations to Libya under Article 5, paragraph 2, Article 5, paragraph 3,
Article 7, Article 8, paragraph 2 and Article 11 of the Convention which
provide as follows:
"Article 5. ...
.............................................................
2. Each Contracting State shall likewise take such measures as [p 116] may
be necessary to establish its jurisdiction over the offences mentioned in
Article 1, paragraph 1 (a), (b) and (c), and in Article 1, paragraph 2, in
so far as that paragraph relates to those offences, in the case where the
alleged offender is present in its territory and it does not extradite him
pursuant to Article 8 to any of the States mentioned in paragraph 1 of this
Article.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law."
"Article 7. The Contracting State in the territory of which the alleged
offender is found shall, if it does not extradite him, be obliged, without
exception whatsoever and whether or not the offence was committed in its
territory, to submit the case to its competent authorities for the purpose
of prosecution. Those authorities shall take their decision in the same
manner as in the case of any ordinary offence of a serious nature under the
law of that State."
"Article 8. ...
.............................................................
2. If a Contracting State which makes extradition conditional on the
existence of a treaty receives a request for extradition from another
Contracting State with which it has no extradition treaty, it may at its
option consider this Convention as the legal basis for extradition in
respect of the offences. Extradition shall be subject to the other
conditions provided by the law of the requested State."
3. ...
4. ..."
"Article 11.
1. Contracting States shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of the
offences. The law of the State requested shall apply in all cases.
2. The provisions of paragraph 1 of this Article shall not affect
obligations under any other treaty, bilateral or multilateral, which governs
or will govern, in whole or in part, mutual assistance in criminal matters";
5. Whereas it is stated in the Application that at the time the charge was
communicated to Libya, or shortly thereafter, the accused were present in
the territory of Libya; that after being apprised of the charge, Libya took
such measures as were necessary to establish its jurisdiction over the
offences charged, pursuant to Article 5, paragraph 2, of the Montreal
Convention; that Libya also took measures to ensure the presence of the
accused in Libya in order to enable criminal proceedings to be instituted,
that it initiated a preliminary enquiry into the facts and that it submitted
the case to its competent authorities for the purpose of prosecution; that
[p 117] Libya has not extradited the accused, there being no extradition
treaty in force between it and the United States, and no basis for the
extradition of the accused under Article 8, paragraph 2, of the Montreal
Convention, since this provision subjects extradition to the law of the
requested State and Libyan law prohibits the extradition of Libyan
nationals; and that, pursuant to Article 11, paragraph 1, of the Montreal
Convention, Libya has sought judicial assistance from the United States in
connection with the criminal proceedings instituted by Libya, with the
competent Libyan authorities offering to co-operate with the investigations
in the United States or in other countries, but that the United States
together with its law enforcement officials have refused to co-operate in
any respect with the Libyan investigations;
6. Whereas it is further alleged in the Application of the Libyan Government
that the United States has clearly shown that it is not interested in
proceeding within the framework of the Montreal Convention but on the
contrary is intent on compelling the surrender to it of the accused, in
violation of the provisions of that Convention; that, more specifically, the
United States, by its actions and threats against Libya, seeks, in violation
of Article 5, paragraph 2, of the Montreal Convention, to prevent Libya from
establishing its legitimate jurisdiction to deal with the matter; that, by
its actions and threats, the United States seeks, in violation of the
Montreal Convention, to prevent Libya from exercising the right conferred
upon it by Article 5, paragraph 3, of that Convention, to exercise its
criminal jurisdiction to deal with the matter in accordance with its
national law; that by seeking to force Libya to surrender the accused, the
United States is attempting, in violation of the Montreal Convention, to
prevent Libya from fulfilling its obligations under Article 7 of the
Convention to submit the case to its competent authorities for the purpose
of prosecution, and that the efforts made by the United States to force
Libya to surrender the accused also constitute a violation of Article 8,
paragraph 2, of that Convention under which extradition is made subject to
the laws of the State from which extradition is requested; and that by
refusing to provide details of its investigation to the competent
authorities in Libya or to co-operate with them, the United States has
failed to fulfil the obligation to afford assistance in criminal matters to
Libya, as provided in Article 11, paragraph 1, of the Montreal Convention,
and has breached its obligations under that Convention;
7. Whereas Libya, in its Application, asks the Court to adjudge and declare:
"(a) that Libya has fully complied with all of its obligations under the
Montreal Convention;
(b) that the United States has breached, and is continuing to breach, its
legal obligations to Libya under Articles 5, (2), 5 (3), 7, 8 (2) and 11 of
the Montreal Convention; and
[p 118]
(c) that the United States is under a legal obligation immediately to cease
and desist from such breaches and from the use of any and all force or
threats against Libya, including the threat of force against Libya, and from
all violations of the sovereignty, territorial integrity, and the political
independence of Libya";
8. Whereas, later on 3 March 1992, the day on which the Application was
filed, the Libyan Government also filed an "urgent request that the Court
indicate provisional measures which ought to be taken promptly to preserve
the rights of Libya", referring to Article 41 of the Statute of the Court
and to Articles 73, 74 and 75 of the Rules of Court; and whereas in that
request Libya, referring to Article 74, paragraph 4, of the Rules of Court,
also requested the President, pending the meeting of the Court, to exercise
the power conferred on him by that provision to call upon the Parties to act
in such a way as to enable any Order the Court might make on Libya's request
for provisional measures to have its appropriate effects;
9. Whereas in its request for the indication of provisional measures, Libya,
referring to the statement of facts in its Application, alleged that the
United States was actively seeking to bypass the provisions of the Montreal
Convention by threatening various actions against Libya in order to compel
Libya, in violation of the Convention, to surrender its two accused
nationals; whereas Libya affirmed in the request that the United States had
indicated that it might seek or impose economic, air and other sanctions
against Libya if Libya did not comply with the demands of the United States,
and that the latter had refused to rule out the use of armed force against
Libya; and that Libya considered that such actions would clearly be illegal
and inappropriate under the applicable provisions of the Montreal
Convention, particularly when Libya was itself complying in full with that
Convention;
10. Whereas in its request for the indication of provisional measures Libya
further submitted that inasmuch as the dispute involved the interpretation
or application of the Montreal Convention, it was for the Court alone to
rule on the validity of the actions of Libya and the United States under
that Convention; that only by granting provisional measures enjoining the
United States from taking such actions against Libya was it possible to
prevent Libya's rights from being irreparably prejudiced either in fact or
in law; and that provisional measures were also urgently required in order
to cause the United States to abstain from any action capable of having a
prejudicial effect on the Court's decision in the case and to refrain from
taking any step that might aggravate or extend the dispute, as would surely
happen if sanctions were imposed against Libya or force were employed; [p
119]
11. Whereas Libya, considering that the Court's jurisdiction in the case was
prima facie established under the Montreal Convention, submitted that there
were no impediments to indicating provisional measures and accordingly
requested the Court to indicate forthwith provisional measures:
"(a) to enjoin the United States from taking any action against Libya
calculated to coerce or compel Libya to surrender the accused individuals to
any jurisdiction outside of Libya; and
(b) to ensure that no steps are taken that would prejudice in any way the
rights of Libya with respect to the legal proceedings that are the subject
of Libya's Application";
12. Whereas on 3 March 1992, the date on which the Application and the
request for the indication of provisional measures were filed in the
Registry, the Registrar transmitted by facsimile to the Government of the
United States a certified copy of the Application, in accordance with
Article 40, paragraph 2, of the Statute and Article 38, paragraph 4, of the
Rules of Court, and a certified copy of the request for the indication of
provisional measures, in accordance with Article 73, paragraph 2, of the
Rules of Court;
13. Whereas, in accordance with Article 40, paragraph 3, of the Statute of
the Court and Article 42 of the Rules of Court, copies of the Application
were transmitted to the Members of the United Nations through the
Secretary-General of the United Nations, and to the other States entitled to
appear before the Court;
14. Whereas, by a letter of 6 March 1992, a copy of which was transmitted to
Libya by the Registrar, the Legal Adviser of the United States Department of
State, referring to the specific request made by Libya under Article 74,
paragraph 4, of the Rules of Court, in its request for the indication of
provisional measures, stated inter alia that
"taking into account both the absence of any concrete showing of urgency
relating to the request and developments in the ongoing action by the
Security Council and the Secretary-General in this matter ... the action
requested by Libya ... is unnecessary and could be misconstrued";
15. Whereas, on 12 March 1992, the Registrar, in accordance with Article 69,
paragraph 3, of the Rules of Court, sent the International Civil Aviation
Organization the notification provided for in Article 34, paragraph 3, of
the Statute of the Court; and whereas on 25 March 1992, the Registrar, in
accordance with Article 43 of the Rules of Court, sent the notification
provided for in Article 63 of the Statute to the States, other than the
Parties to the dispute, which, on the basis of information supplied by the
depositary Governments, appeared to be parties to the Montreal Convention of
23 September 1971; [p 120]
16. Whereas, the Court not including upon the Bench a judge of Libyan
nationality, the Libyan Government availed itself of the provisions of
Article 31, paragraph 2, of the Statute of the Court to choose Mr. Ahmed
Sadek El-Kosheri to sit as Judge ad hoc in the case;
17. Whereas, having regard to the wishes expressed by the Parties, the
Vice-President of the Court, exercising the functions of the presidency in
the case, fixed 26 March 1992 as the date for the opening of the oral
proceedings on the request for the indication of provisional measures, in
accordance with Article 74, paragraph 3, of the Rules of Court, and the
Parties were informed of this decision on 6 March 1992;
18. Whereas on 26 March 1992, at the opening of the hearings on the request
for the indication of provisional measures, the Vice-President of the Court,
exercising the functions of the presidency in the case, referred, inter alia,
to the request made by Libya under Article 74, paragraph 4, of the Rules of
Court and stated that after the most careful consideration of all the
circumstances then known to him he had come to the conclusion that it would
not be appropriate for him to exercise the discretionary power conferred on
the President by that provision;
19. Whereas oral observations of the Parties on the request for the
indication of provisional measures were presented, at public hearings held
pursuant to Article 74, paragraph 3, of the Rules of Court, on 26, 27 and 28
March 1992, by the following representatives:
on behalf of Libya:
H.E. Mr. Al Faitouri Sh. Mohamed, Agent,
Mr. Ian Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy;
on behalf of the United States:
The Hon. Edwin D. Williamson, Agent,
Mr. Alan J. Kreczko, Deputy Agent,
Mr. Bruce C. Rashkow,
Mr. Charles N. Brower,
Mr. Jonathan B. Schwartz;
and whereas during the hearings questions were put by Judges, to which the
Parties subsequently replied in writing, within the time-limit fixed
pursuant to Article 61, paragraph 4, of the Rules of Court;
20. Whereas at the hearing held on 28 March 1992, Libya presented the
following submissions:
"Libya hereby confirms that it is requesting the Court to indicate the
following provisional measures:
(a) to enjoin the United States from taking against Libya measures
calculated to exert coercion on it or compel it to sur-[p 121]render the
accused individuals to any jurisdiction outside of Libya; and
(b) to ensure that no steps are taken that could prejudice in any way the
rights of Libya with respect to the proceedings instituted by Libya's
Application";
21. Whereas at the hearing held on 28 March 1992, the United States
presented the following submission:
"May it please the Court,
On behalf of the United States of America, to reject the request of the
Government of the Great Socialist People's Libyan Arab Jamahiriya for the
indication of provisional measures of protection, and not to indicate any
such measures";
***
22. Whereas Article 14, paragraph 1, of the Montreal Convention, relied on
by Libya as basis of jurisdiction in the case, 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 of 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";
23. Whereas, in its Application, Libya states that a dispute exists between
Libya and the United States as to the interpretation or application of the
Montreal Convention; that it has not been possible to settle this dispute by
negotiation; that a request by Libya to the United States for arbitration of
the dispute has been rejected by the United States, and that the Parties
have been unable to agree on the organization of such an arbitration; and
that in the light of the urgency of rectifying the continuing violations by
the United States of the Montreal Convention and the United States refusal
to enter into arbitration, the Court has jurisdiction to hear Libya's claims
arising under the Montreal Convention; whereas, in its request for the
indication of provisional measures, Libya submitted that the Court's
jurisdiction in the case was prima facie established under the Montreal
Convention; and whereas in the course of the oral proceedings, Libya
confirmed those views and further contended that the various conditions laid
down by Article 14, paragraph 1, of the Montreal Convention had been
fulfilled, including the requirement related to the six-month period; [p
122]
24. Whereas, in the course of the oral proceedings Libya also submitted that
the rights for which it sought protection were established; that these
rights were the subject of the principal Application; that the circumstances
disclosed a risk of imminent irreparable damage to these rights; and that
the exercise by the Court and the Security Council of their respective
powers did not in any way conflict;
25. Whereas in the course of the oral proceedings the United States
contended that the requested provisional measures should not be indicated
because Libya had not presented a prima facie case that the provisions of
the Montreal Convention provide a possible basis for jurisdiction inasmuch
as the six-month period prescribed by Article 14, paragraph 1, of the
Convention had not yet expired when Libya's Application was filed; and that
Libya had not established that the United States had refused to arbitrate;
26. Whereas the United States also contended that Libya had not demonstrated
that provisional measures were necessary to protect rights at imminent risk
of irreparable injury; that there was no proof that "the United States was
threatening Libya with economic sanctions and other actions, including the
probability of recourse to the use of armed force", as alleged by Libya;
27. Whereas the United States also argued that the requested measures did
not relate to the rights claimed in the Application; that Libya had failed
to establish the possible existence of the rights it claimed under the
Montreal Convention; and that the requested measures would not preserve the
rights of the United States;
28. Whereas the United States also contended that the Security Council was
actively seised of the situation which was the subject of the Application
and that therefore the Court should not indicate provisional measures;
29. Whereas the United States further contended that the requested
provisional measures were improperly directed to restraining action in the
Security Council, including participation by Member States;
30. Whereas, following on the charges brought by a Grand Jury of the United
States District Court for the District of Columbia against the two Libyan
nationals in connection with the destruction of Pan Am flight 103, the
United States and the United Kingdom issued on 27 November 1991 the
following joint declaration:
"The British and American Governments today declare that the Government of
Libya must:
-surrender for trial all those charged with the crime; and accept
responsibility for the actions of Libyan officials; [p 123]
-disclose all it knows of this crime, including the names of all those
responsible,and allow full access to all witnesses, documents and other
material evidence, including all the remaining timers;
-pay appropriate compensation.
We expect Libya to comply promptly and in full";
31. Whereas the subject of that declaration was subsequently considered by
the United Nations Security Council, which on 21 January 1992 adopted
resolution 731 (1992), of which the paragraphs here material read as
follows:
"The Security Council,
Deeply disturbed by the world-wide persistence of acts of international
terrorism in all its forms, including those in which States are directly or
indirectly involved, which endanger or take innocent lives, have a
deleterious effect on international relations and jeopardize the security of
States,
Deeply concerned by all illegal activities directed against international
civil aviation, and affirming the right of all States, in accordance with
the Charter of the United Nations and relevant principles of international
law, to protect their nationals from acts of international terrorism that
constitute threats to international peace and security,
.............................................................
Deeply concerned over the results of investigations, which implicate
officials of the Libyan Government and which are contained in Security
Council documents that include the requests addressed to the Libyan
authorities by France, FN1, FN2, the United Kingdom of Great Britain and
Northern Ireland FN2, FN3 and the United States of America FN2, FN4, FN5 in
connection with the legal procedures related to the attacks carried out
against Pan American flight 103 and Union de transports aeriens flight 772;
------------------------------------------------------------------------------------------------------------
FN1
S/23306;
FN2 S/23309;
FN3 S/23307;
FN4 S/23308;
FN5 S/23317;
------------------------------------------------------------------------------------------------------------
.............................................................
2. Strongly deplores the fact that the Libyan Government has not yet
responded effectively to the above requests to cooperate fully in
establishing responsibility for the terrorist acts referred to above against
Pan American flight 103 and Union de transports aeriens flight 772;
3. Urges the Libyan Government immediately to provide a full and effective
response to those requests so as to contribute to the elimination of
international terrorism; [p 124]
32. Whereas in the course of the oral proceedings reference was made by both
sides to the possibility of sanctions being imminently imposed by the
Security Council on Libya in order to require it, inter alia, to surrender
the accused to the United States or the United Kingdom;
33. Whereas Libya contended that provisional measures were urgently required
in order to cause the United States to abstain from any action capable of
having a prejudicial effect on the Court's decision in the case, and more
specifically to refrain from taking any initiative within the Security
Council for the purpose of impairing that right to exercise jurisdiction,
which Libya asks the Court to recognize;
34. Whereas on 31 March 1992 (three days after the close of the hearings)
the Security Council adopted resolution 748 (1992) stating inter alia that
the Security Council:
"...
Deeply concerned that the Libyan Government has still not provided a full
and effective response to the requests in its resolution 731 (1992) of 21
January 1992,
Convinced that the suppression of acts of international terrorism, including
those in which States are directly or indirectly involved, is essential for
the maintenance of international peace and security,
........................................................
Determining, in this context, that the failure by the Libyan Government to
demonstrate by concrete actions its renunciation of terrorism and in
particular its continued failure to respond fully and effectively to the
requests in resolution 731 (1992) constitute a threat to international peace
and security,
........................................................
Acting under Chapter VII of the Charter,
1. Decides that the Libyan Government must now comply without any further
delay with paragraph 3 of resolution 731 (1992) regarding the requests
contained in documents S/23306, S/23308 and S/23309;
2. Decides also that the Libyan Government must commit itself definitively
to cease all forms of terrorist action and all assistance to terrorist
groups and that it must promptly, by concrete actions, demonstrate its
renunciation of terrorism;
3. Decides that, on 15 April 1992 all States shall adopt the measures set
out below, which shall apply until the Security Council decides that the
Libyan Government has complied with paragraphs 1 and 2 above;
........................................................
[p 125]
7. Calls upon all States, including States not members of the United
Nations, and all international organizations, to act strictly in accordance
with the provisions of the present resolution, notwithstanding the existence
of any rights or obligations conferred or imposed by any international
agreement or any contract entered into or any licence or permit granted
prior to 15 April 1992";
35. Whereas, by a letter of 2 April 1992, a copy of which was transmitted to
Libya by the Registrar, the Agent of the United States drew the Court's
attention to the adoption of Security Council resolution 748 (1992) the text
of which he enclosed; and whereas, in that letter, the Agent stated:
"That resolution, adopted pursuant to Chapter VII of the United Nations
Charter, 'decides that the Libyan Government must now comply without any
further delay with paragraph 3 of resolution 731 (1992) of 21 January 1992
regarding the requests contained in documents S/23306, S/23308 and S/23309'.
It will be recalled that the referenced requests include the request that
Libya surrender the two Libyan suspects in the bombing of Pan Am flight 103
to the United States or to the United Kingdom. For this additional reason,
the United States maintains its submission of 28 March 1992 that the request
of the Government of the Great Socialist People's Libyan Arab Jamahiriya for
the indication of provisional measures of protection should be denied, and
that no such measures should be indicated";
36. Whereas document S/23308, to which reference was made in resolution 748
(1992), included the demands set out in paragraph 30 above;
37. Whereas the Registrar, on the instructions of the Court, informed the
Parties, on 4 April 1992, that, in accordance with Article 62 of the Rules
of Court, the Court was willing to receive, no later than 7 April 1992, any
observations the Parties might wish to transmit to it on the possible
implications of Security Council resolution 748 (1992) for the proceedings
before the Court;
38. Whereas in its observations on Security Council resolution 748 (1992)
presented in response to the Court's invitation, Libya contends as follows:
first, that that resolution does not prejudice the rights of Libya to
request the Court to indicate provisional measures, inasmuch as by deciding,
in effect, that Libya must surrender its nationals to the United States and
the United Kingdom, the Security Council infringes, or threatens to
infringe, the enjoyment and the exercise of the rights conferred on Libya by
the Montreal Convention and its economic, commercial and diplomatic rights;
whereas Libya therefore claims that the United States and the United Kingdom
should so act as not to infringe Libya's rights, for example by seeking a
suspension of the relevant part of resolution 748 (1992); [p 126]
39. Whereas Libya in its observations contends, secondly, that the risk of
contradiction between the resolution and the provisional measures requested
of the Court by Libya does not render the Libyan request inadmissible, since
there is in law no competition or hierarchy between the Court and the
Security Council, each exercising its own competence; whereas Libya recalls
in this connection that it regards the decision of the Security Council as
contrary to international law, and considers that the Council has employed
its power to characterize the situation for purposes of Chapter VII simply
as a pretext to avoid applying the Montreal Convention.
40. Whereas in its observations on Security Council resolution 748 (1992),
presented in response to the Court's invitation, the United States observes
that that resolution was adopted under Chapter VII rather than Chapter VI of
the Charter and was framed as a "decision" and contended that, given that
binding decision, no object would be served by provisional measures; that,
irrespective of the right claimed by Libya under the Montreal Convention,
Libya has a Charter-based duty to accept and carry out the decisions in the
resolution, and other States have a Charter-based duty to seek Libya's
compliance; that any indication of provisional measures would run a serious
risk of conflicting with the work of the Security Council; that the Council
had rejected (inter alia) Libya's contention that the matter should be
addressed on the basis of the right claimed by Libya under the Montreal
Convention, which Libya asks the Court to protect through provisional
measures; and that the Court should therefore decline the request;
41. Whereas the Court, in the context of the present proceedings on a
request for provisional measures, has in accordance with Article 41 of the
Statute, to consider the circumstances drawn to its attention as requiring
the indication of such measures, but cannot make definitive findings either
of fact or of law on the issues relating to the merits, and the right of the
Parties to contest such issues at the stage of the merits must remain
unaffected by the Court's decision;
42. Whereas both Libya and the United States, as Members of the United
Nations, are obliged to accept and carry out the decisions of the Security
Council in accordance with Article 25 of the Charter; whereas the Court,
which is at the stage of proceedings on provisional measures, considers that
prima facie this obligation extends to the decision contained in resolution
748 (1992); and whereas, 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;
43. Whereas the Court, while thus not at this stage called upon to determine
definitively the legal effect of Security Council resolution 748 (1992),
considers that, whatever the situation previous to the adoption of that
resolution, the rights claimed by Libya under the Montreal Conven-[p
127]tion cannot now be regarded as appropriate for protection by the
indication of provisional measures;
44. Whereas, furthermore, an indication of the measures requested by Libya
would be likely to impair the rights which appear prima facie to be enjoyed
by the United States by virtue of Security Council resolution 748 (1992);
45. Whereas, in order to pronounce on the present request for provisional
measures, the Court is not called upon to determine any of the other
questions which have been raised before it in the present proceedings,
including the question of its jurisdiction to entertain the merits of the
case; and whereas the decision given in these proceedings in no way
prejudges any such question, and leaves unaffected the rights of the
Government of Libya and the Government of the United States to submit
arguments in respect of any of these questions;
46. For these reasons,
The Court,
By eleven votes to five,
Finds that the circumstances of the case are not such as to require the
exercise of its power under Article 41 of the Statute to indicate
provisional measures.
In favour: Vice-President Oda, Acting President; President Sir Robert
Jennings; Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen, Aguilar Mawdsley;
Against: Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad hoc
El-Kosheri.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this fourteenth day of April, one thousand nine
hundred and ninety-two, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Libyan Arab Jamahiriya, and the Government of the United States of America,
respectively.
(Signed) Shigeru Oda,
Vice-President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Vice-President Oda, Acting President, and Judge NI append declarations to
the Order of the Court; Judges Evensen, Tarassov, Guillaume [p 128] and
Aguilar Mawdsley append a joint declaration to the Order of the Court.
Judges Lachs and Shahabuddeen append separate opinions to the Order of the
Court,
Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri
append dissenting opinions to the Order of the Court.
(Initialled) S.O.
(Initialled) E.V.O.
[p 129]
Declaration of acting president Oda
I concur with the Court's Order in that I believe the request for the
indication of provisional measures should be declined. I wish, however, to
add that I am not in agreement with the Court's taking United Nations
Security Council resolution 748 (1992) as its sole ground in this matter.
I
I do not deny that under the positive law of the United Nations Charter a
resolution of the Security Council may have binding force, irrespective of
the question whether it is consonant with international law derived from
other sources. There is certainly nothing to oblige the Security Council,
acting within its terms of reference, to carry out a full evaluation of the
possibly relevant rules and circumstances before proceeding to the decisions
it deems necessary. The Council appears, in fact, to have been acting within
its competence when it discerned a threat against international peace and
security in Libya's refusal to deliver up the two Libyan accused. Since, as
I understand the matter, a decision of the Security Council, properly taken
in the exercise of its competence, cannot be summarily reopened, and since
it is apparent that resolution 748 (1992) embodies such a decision, the
Court has at present no choice but to acknowledge the pre-eminence of that
resolution.
However, to base the Court's Order solely on that non possumus ground is to
leave open the possibility that the Court, prior to the adoption of
resolution 748 (1992), might have indicated provisional measures, and indeed
to suggest that an analysis of the legal factors could have led the Court to
a decision incompatible in its effects with the Security Council's actions.
If this was not the case, and lest the Court be blamed for not having given
its decision last month, it would have been preferable to say so.
Accordingly, I wish to present my own view of the matter as a Member of the
Court.
Before doing so, however, I feel bound to point out that Security Council
resolution 748 (1992) was adopted in line with the Council's determination
to eliminate international terrorism, the extradition of the two Libyan
accused serving basically as a convenient focus for that determination, and
that, three days of public hearings at the Court having taken place between
26 and 28 March (a Saturday) 1992, the members of the Security [p 130]
Council could have been no less aware of the urgency of the Court's
procedure as of the minimum time required for it to be able to deliver a
considered decision. When the Council, following of course the logic of its
own timetable and purposes, adopted its resolution on 31 March 1992, a mere
three days after the hearings, it must therefore have acted in full
cognizance of the impact of its own decision on that which still fell to be
taken by the Court as well as of the possible consequences of the latter.
II
The Respondent asked that the Court should decline to indicate provisional
measures on the ground that the Court lacked jurisdiction in this case,
since the requirements of Article 14, paragraph 1, of the Montreal
Convention had not been fulfilled. However, through the Court's
jurisprudence it is established that, if the Court appears prima facie to
possess jurisdiction, it may (if it thinks fit) indicate provisional
measures, and this rule has always been interpreted most generously in
favour of the Applicant, lest a denial be needlessly prejudicial to the
continuation of the case. Thus the possibility of indicating provisional
measures may be denied in limine only in a case where the lack of
jurisdiction is so obvious as to require no further examination of the
existence of jurisdiction in a later phase.
In the present case, there does not seem to exist any convincing ground for
asserting that the Court's jurisdiction is so obviously lacking. The
Respondent's argument whereby the Court's jurisdiction is denied through the
non-lapse of the six-month period would appear too legalistic, if one were
to find that no room remained to negotiate on the organization of
arbitration in the face of a categorical denial of the possibility of an
arbitration.
III
In my view it is important to bear in mind that the rights susceptible of
protection in a given case must lie within the scope of the object stated in
the Application. Now, on the one hand, Libya instituted proceedings against
the United States in respect of a dispute over the interpretation and
application of the 1971 Montreal Convention. On the other hand, it is a
matter of general international law that, while no State (unless by virtue
of any convention) is obliged to extradite its own nationals, any State may
exercise criminal jurisdiction over crimes committed in its own territory or
may claim criminal jurisdiction over acts done abroad by aliens which are
prejudicial to its security or certain offences recognized by the community
of nations as of universal concern. This does not necessarily relate to the
rights granted by the Montreal Convention, which are the subject of [p 131]
the present case and fall to be clarified in the merits phase. The rights of
which Libya claims protection in its request for interim measures cannot,
thus, be assumed to constitute rights under the Montreal Convention and to
fall within the scope of the Application, but are rather sovereign rights
under general international law.
To make this distinction clear, I must point out that, although a State
which has jurisdiction in respect of criminal proceedings against any person
who happens to be in a foreign territory is free to request the territorial
sovereign to extradite that person (a principle admittedly supported by the
Montreal Convention), the immediate question put by Libya is whether or not
the coercive reinforcement of that request could be deemed contrary to
international law. This, to repeat, relates to protection of sovereign
rights under general international law but not to the interpretation and
application of the Montreal Convention, which is the subject matter of the
present case. The claim on the ground of the violation of sovereign rights
would have instituted a totally different litigation, and whether or not the
Court has jurisdiction to deal with that issue is certainly a different
matter.
This analysis may seem over-technical, but is not so in relation to the
apparent object of Libya's Application, which is to seek a declaratory
judgment concerning the application and interpretation of the Montreal
Convention. This point, in my view, cannot be verified at once but should be
examined at a later stage.
IV
At all events, this mismatch between the object of the Application and the
rights sought to be protected ought, in my view, to have been the main
reason for the Court to decline to indicate provisional measures. On that
basis, the Court would have come to the same negative conclusion, even
before 31 March 1992, the date on which Security Council resolution 748 was
adopted.
(Signed) Shigeru Oda.
[p 132]
DEclaration of judge Ni
The Court is confronted with an extraordinary situation which, however, is
not entirely unprecedented. It occurs from the fact that a case is before
both the Security Council and the Court.
On 21 January 1992, the United Nations Security Council had adopted a
resolution, urging the Libyan Government to provide full account and
effective response to the requests of the Council in connection with the
destruction of Pan Am flight 103 at Lockerbie, Scotland, on 21 December 1988
and requesting the Secretary-General to seek co-operation of the Libyan
Government to provide full and effective response to the requests.
On 3 March 1992, Libya filed two separate Applications against the United
Kingdom and the United States of America, requesting this Court to adjudge
and declare, inter alia, that both the above-mentioned States had breached
their legal obligations to Libya under the Articles of the Montreal
Convention. On the same day, Libya made two separate requests to indicate
provisional measures to enjoin the United Kingdom and the United States of
America from taking certain actions.
On 31 March, the Security Council adopted resolution 748 (1992), imposing
sanctions, if Libya does not comply before 15 April.
Question arises whether the Security Council and the Court can now exercise
their respective functions at the same time in respect of the dispute
between Libya on the one side and the United Kingdom and the United States
on the other. It can be urged on behalf of the Security Council that under
Article 24 of the United Nations Charter, Members of the United Nations
confer on the Security Council primary responsibility for the maintenance of
international peace and security, in order to ensure prompt and effective
action by the United Nations. But on the other hand, it can also be argued
that it is provided in Article 92 of the United Nations Charter that the
International Court of Justice shall be the principal judicial organ of the
United Nations which is given the power, under Article 36 of the Court's
Statute, to settle "all legal disputes concerning the interpretation of a
treaty, any question of international law ...".
In this respect, we are not without guidance from the jurisprudence of the
Court. As recently as the 1980s, we have the case of the United States
Diplomatic and Consular Staff in Tehran and the case of Military and
Paramilitary Activities in and against Nicaragua. In the former case which
was [p 133] decided in 1980, resolutions were previously passed by the
Security Council and even a fact-finding commission was established by the
Secretary-General with the agreement of the two parties. These did not
prevent the Court from exercising its judicial functions. The Judgment
indicated that in adopting resolution 461 (1979),
"it does not seem to have occurred to any member of the Council that there
was or could be anything irregular in the simultaneous exercise of their
respective functions by the Court and the Security Council. Nor is there in
this any cause for surprise." (I.C.J. Reports 1980, p. 21, para. 21).
In comparing the relations between the Security Council and the General
Assembly, and the relations between the Security Council and the Court, the
Court had this to say in that Judgment:
"Whereas Article 12 of the Charter expressly forbids the General Assembly to
make any recommendation with regard to a dispute or situation while the
Security Council is exercising its functions in respect of that dispute or
situation, no such restriction is placed on the functioning of the Court by
any provision of either the Charter or the Statute of the Court. The reasons
are clear. It is for the Court, the principal judicial organ of the United
Nations, to resolve any legal questions that may be in issue between parties
to a dispute; and the resolution of such legal questions by the Court may be
an important, and sometimes decisive, factor in promoting the peaceful
settlement of the dispute. This is indeed recognized by Article 36 of the
Charter, paragraph 3 of which specifically provides that:
'In making recommendations under this Article the Security Council should
also take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance
with the provisions of the Statute of the Court.'" (Ibid., p. 22, para. 40.)
The Court's decision in the Nicaragua case is consistent with the reasoning
in the United States Diplomatic and Consular Staff in Teheran case. The
Judgment says:
"Until the Security Council makes a determination under Article 39, a
dispute remains to be dealt with by the methods of peaceful settlement
provided under Article 33, including judicial settlement; and even after a
determination under Article 39, there is no necessary inconsistency between
Security Council action and adjudication by the Court." (I.C.J. Reports
1984, p. 432, para. 90; emphasis added.)[p 134]
In the same vein, the Court indicated that "the fact that a matter is before
the Security Council should not prevent it being dealt with by the Court and
that both proceedings could be pursued pari passu" (ibid., p. 433, para.
93). The Court went on to say that:
"It is necessary to emphasize that Article 24 of the Charter of the United
Nations provides that
'In order to ensure prompt and effective action by the United Nations, its
Members confer on the Security Council primary responsibility for the
maintenance of international peace and security ...'
The Charter accordingly does not confer exclusive responsibility upon the
Security Council for the purpose ... The Council has functions of a
political nature assigned to it, whereas the Court exercises purely judicial
functions. Both organs can therefore perform their separate but
complementary functions with respect to the same events." (Ibid., pp.
434-435, para. 95.)
Here the mention of complementary functions should not be overlooked.
Although both organs deal with the same matter, there are differing points
of emphasis. In the instant case, the Security Council, as a political
organ, is more concerned with the elimination of international terrorism and
the maintenance of international peace and security, while the International
Court of Justice, as the principal judicial organ of the United Nations, is
more concerned with legal procedures such as questions of extradition and
proceedings in connection with prosecution of offenders and assessment of
compensation, etc. But these functions may be correlated with each other.
What would be required between the two is co-ordination and co-operation,
not competition or mutual exclusion.
Having said this, I am now to state my views with respect to the Applicant's
request for provisional measures. I consider that, above all, there is the
question of whether Libya can seek legal remedy now under the 1971 Montreal
Convention on which Libya primarily relies for its institution of legal
proceedings in this Court. The 1971 Montreal Convention provides in its
Article 14 (1) 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."[p 135]
In determining whether the Court should or should not grant relief now to
the Applicant, the Court should first decide on this temporal question of
the six-month period for organizing arbitration. The period thus provided
cannot be ignored at the pleasure of either Party. There has been no refusal
to arbitrate on the part of the Respondents. No negotiation has yet been
conducted for this purpose between the Parties. It is clear that, since the
Applicant's letter of 18 January 1992 requesting agreement to arbitrate, the
six-month period has not yet run out. It is premature for the Applicant to
seek a legal remedy now from this Court. This is the threshold question
which must first be solved before any other question can be decided upon.
I agree with the majority that the request for provisional measures should
be denied. But I consider that it should be denied on the sole ground of
non-fulfilment of the temporal requirement provided in Article 14 (1) of the
1971 Montreal Convention without having to decide at the same time on the
other issues, such as the existence of rights claimed by the Applicant,
irreparable damage, urgency, etc. Consequently, in my view the Applicant
will not be prevented from seeking a remedy of this Court in accordance with
the provisions of the 1971 Montreal Convention, if the dispute months later
still subsists and if the Applicant so desires.
(Signed) Ni Zhengyu.[p 136]
Joint declaration of judges Evensen, Tarassov, Guillaume and Aguilar
[Translation]
We agree fully with the decision of the Court, but wish to make some
additional comments on it.
1. Before the Security Council became involved in the case the legal
situation was, in our view, clear. The United Kingdom and the United States
were entitled to request Libya to extradite the two Libyan nationals charged
by the American and British authorities with having contributed to the
destruction of the aeroplane lost in the Lockerbie incident. For this
purpose they could take any action consistent with international law. For
its part, Libya was entitled to refuse such an extradition and to recall in
that connection that, in common with the law of many other countries, its
domestic law prohibits the extradition of nationals.
2. In so far as general international law is concerned, extradition is a
sovereign decision of the requested State, which is never under an
obligation to carry it out. Moreover, in general international law there is
no obligation to prosecute in default of extradition. Although since the
days of Covarruvias and Grotius such a formula has been advocated by some
legal scholars, it has never been part of positive law. This being so, every
State is at liberty to request extradition and every State is free to refuse
it. Should it refuse, a State is not obliged to prosecute.
3. Ten international conventions adopted under the aegis of the United
Nations or the specialized agencies since 1970 have nevertheless modified
the legal situation between the parties to those conventions.
The Montreal Convention of 23 September 1971 for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation is one of the conventions
mentioned. Libya, the United Kingdom and the United States are parties to
it.
The Convention provides, in Article 7, that
"The Contracting State in the territory of which the alleged offender is
found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to
submit the case to its competent authorities for the purpose of
prosecution."
In Article 5 the Convention deals with jurisdictional questions for the
purpose of facilitating prosecution. In Article 8 the Convention makes
extradition less difficult, but without creating any obligation in that
regard.
Thus, the Montreal Convention, which in our opinion was applicable in [p
137] this case, did not prohibit Libya from refusing to extradite the
accused to the United Kingdom or the United States. It implied merely that
in the absence of extradition the matter was to be submitted by Libya to its
competent authorities for purposes of prosecution.
4. This situation was not, in the present case, considered satisfactory by
the Security Council, which was acting, with a view to combating
international terrorism, within the framework of Chapter VII of the United
Nations Charter. By resolution 731 (1992) of 21 January 1992 (para. 3), the
Council urged "the Libyan Government immediately to provide a full and
effective response" to the requests for the surrender of the accused made by
the United Kingdom and the United States. Subsequently, by resolution 748
(1992) it decided "that the Libyan Government must now comply without any
further delay with paragraph 3 of resolution 731 (1992) regarding the
requests" in question.
This being so, the Court, pronouncing on a request for the indication of
provisional measures submitted by Libya in order to preserve the legal
situation existing prior to the adoption of the Security Council
resolutions, was fully justified in noting the changes that had occurred in
that situation and holding, accordingly, that the circumstances of the case
were not such as to require the exercise of its power to indicate such
measures.
(Signed) Jens Evensen.
(Signed) Nikolai Tarassov.
(Signed) Gilbert Guillaume.
(Signed) Andres Aguilar Mawdsley.
[p 138]
Separate opinion of judge Lachs
While concurring in the Court's decision I consider it my duty to place on
record certain considerations in respect of the circumstances in which it
fell to be taken. Clouded as the circumstances may have been, some legal
implications may be ascertained.
In the normal course of events, the request made to the Court in proceedings
instituted on the basis of the Montreal Convention would have faced the
Court with the necessity of deciding whether a genuine case existed for
granting interim measures. However Libya's Application and request were
placed before the Court when the Lockerbie catastrophe and the wider problem
of international terrorism, which merits condemnation in all its
manifestations, were already on the agenda of the Security Council, which
had brought them together under the terms of resolution 731 (1992). The
Council, by moving onto the terrain of Chapter VII of the Charter, decided
certain issues pertaining to the Lockerbie disaster with binding force.
Hence problems of jurisdiction and the operation of the sub judice principle
came into the foreground as never before.
While the Court has the vocation of applying international law as a
universal law, operating both within and outside the United Nations, it is
bound to respect, as part of that law, the binding decisions of the Security
Council. This of course, in the present circumstances, raises issues of
concurrent jurisdiction as between the Court and a fellow main organ of the
United Nations.
The framers of the Charter, in providing for the existence of several main
organs, did not effect a complete separation of powers, nor indeed is one to
suppose that such was their aim. Although each organ has been allotted its
own Chapter or Chapters, the functions of two of them, namely the General
Assembly and the Security Council, also pervade other Chapters than their
own. Even the International Court of Justice receives, outside its own
Chapter, a number of mentions which tend to confirm its role as the general
guardian of legality within the system. In fact the Court is the guardian of
legality for the international community as a whole, both within and without
the United Nations. One may therefore legitimately suppose that the
intention of the founders was not to encourage a blinkered parallelism of
functions but a fruitful interaction.
[p 139]
Two of the main organs of the United Nations have the delivery of binding
decisions explicitly included in their powers under the Charter: the
Security Council and the International Court of Justice. There is no doubt
that the Court's task is "to ensure respect for international law ..."
(I.C.J. Reports 1949, p. 35). It is its principal guardian. Now, it has
become clear that the dividing line between political and legal disputes is
blurred, as law becomes ever more frequently an integral element of
international controversies. The Court, for reasons well known so frequently
shunned in the past, is thus called upon to play an ever greater role. Hence
it is important for the purposes and principles of the United Nations that
the two main organs with specific powers of binding decision act in harmony
- though not, of course, in concert - and that each should perform its
functions with respect to a situation or dispute, different aspects of which
appear on the agenda of each, without prejudicing the exercise of the
other's powers. In the present case the Court was faced with a new situation
which allowed no room for further analysis nor the indication of effective
interim measures. The Order made should not, therefore, be seen as an
abdication of the Court's powers; it is rather a reflection of the system
within which the Court is called upon to render justice.
Whether or not the sanctions ordered by resolution 748 (1992) have
eventually to be applied, it is in any event to be hoped that the two
principal organs concerned will be able to operate with due consideration
for their mutual involvement in the preservation of the rule of law.
(Signed) Manfred Lachs.
[p 140]
Separate opinion of judge Shahabuddeen
The Court's Order is based solely on Security Council resolution 748 (1992).
That also is the ground of my concurrence with it. But for that resolution,
I should have thought that Libya had presented an arguable case for an
indication of interim measures. The resolution now makes it unnecessary to
explore the legal elements of Libya's request for such measures. In view of
the turn of events occasioned by the resolution, I propose, however, to say
something on (i) the legal basis of the Court's Order; (ii) the feasibility
of an impartial trial in the event of the two accused being surrendered to
the Respondent; and (iii) certain implications of the Court's Order.
(i) The legal basis of the Court's Order
Whatever might have been the previous position, resolution 748 (1992) of the
Security Council leaves the Court with no conclusion other than that to
which it has come. This is the result not of imposition of superior
authority - there is none - but of the fact that, in finding the applicable
law, the Court must take account of the resolution 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, though contested
by Libya, has, at this stage, to be presumed (see the general principle in
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), I.C.J. Reports 1971, p. 22, para. 20). Article 25 of the Charter of
the United Nations obliges Libya to comply with the decision set out in the
resolution (ibid., pp. 52-53). By virtue of Article 103 of the Charter, that
obligation prevails over any conflicting treaty obligation which Libya may
have (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), I.C.J. Reports 1984, p. 440, para.
107). Treaty obligations can be overridden by a decision of the Security
Council imposing sanctions (Paul Reuter, Introduction to the Law of
Treaties, 1989, p. 113, para. 228, and Sir Gerald Fitzmaurice, The Law and
Procedure of the International Court of Justice, 1986, Vol. 2, p. 431).
Hence, assuming that Libya has the rights which it claims, prima facie they
could not be enforced during the life of the resolution.
Several cases demonstrate, in one way or another, that the Court is not
precluded from acting by the mere circumstance that the matter in contest [p
141] is also under consideration by another organ of the United Nations
(see, inter alia, United States Diplomatic and Consular Staff in Tehran,
I.C.J. Reports 1980, p. 22, para. 40; and Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, I.C.J. Reports 1984, pp. 185-186, and, ibid.,
Jurisdiction and Admissibility, I.C.J. Reports 1984, pp. 433-436). In this
case, it happens that the decision which the Court is asked to give is one
which would directly conflict with a decision of the Security Council. That
is not an aspect which can be overlooked. Yet, it is not the juridical
ground of today's Order. This results not from any collision between the
competence of the Security Council and that of the Court, but from a
collision between the obligations of Libya under the decision of the
Security Council and any obligations which it may have under the Montreal
Convention. The Charter says that the former prevail.
I have considered the question whether interim measures may be indicated to
the extent that the Respondent has allegedly been threatening the Applicant
with force, this not being authorized by resolution 748 (1992). It appears
to me, however, that whatever was the previous position, the inference to be
judicially drawn from the facts as they now stand is that the Respondent,
having promoted and supported the resolution, is prepared to follow the
course indicated in the resolution and accordingly not to resort to force
unless authorized by the Security Council. So on this point the resolution
of the Security Council stands in the way, both on the law and on the facts.
(ii) The feasibility of an impartial trial in the event of the two accused
being surrendered to the Respondent
The United States demand for the surrender of the two accused Libyan
nationals is based largely on the view that an impartial trial could not be
had in Libya. However, the material before the Court raises an issue as to
possible prejudgment of the case by the United States. The United States
demand that Libya "must ... pay appropriate compensation ... promptly and in
full" presupposes a determination by the United States that the accused are
guilty, since the responsibility of the Libyan State is premised on the
guilt of the accused. My reasoning is set out in an opinion appended by me
to the Order made today by the Court in the companion case brought by Libya
against the United Kingdom.
(iii) Implications of the Court's Order
Inability under domestic law to act being no defence to non-compliance with
an international obligation, in order to make such compliance in a [p 142]
case of this kind a State may well find that, if it is not to breach its
internal legal order, it may have not only to legislate in the ordinary way,
but to undertake some appropriate measure of constitutional amendment, and
to do so speedily. In this case, Libya has expressed doubts whether the
stated objective of securing an impartial trial will be achieved if (having
taken whatever steps are necessary) it complies with the resolution of the
Security Council.
The question now raised by Libya's challenge to the validity of resolution
748 (1992) is whether a decision of the Security Council may override the
legal rights of States, and, if so, whether there are any limitations on the
power of the Council to characterize a situation as one justifying the
making of a decision entailing such consequences. Are there any limits to
the Council's powers of appreciation? In the equilibrium of forces
underpinning the structure of the United Nations within the evolving
international order, is there any conceivable point beyond which a legal
issue may properly arise as to the competence of the Security Council to
produce such overriding results? If there are any limits, what are those
limits and what body, if other than the Security Council, is competent to
say what those limits are?
If the answers to these delicate and complex questions are all in the
negative, the position is potentially curious. It would not, on that
account, be necessarily unsustainable in law; and how far the Court can
enter the field is another matter. The issues are however important, even
though they cannot be examined now.
(Signed) Mohamed Shahabuddeen.
[p 143]
Dissenting opinion of judge Bedjaoui
[Translation]
1. In accordance with its commendable practice in that regard, the Court has
given a very neutral title to the case brought before it. The title refers
blandly to the "interpretation and application of the 1971 Montreal
Convention arising from the aerial incident at Lockerbie". What occurred is
not a mere "incident" but an abominable bombing that took 270 lives and
demands the apprehension, prosecution and severe sentencing of its
perpetrators, whoever they may be. But whatever the legitimate indignation
that this detestable outrage may have aroused, its perpetrators must be
brought to book only in strict conformity with international legality.
2. The examination by the Court of this international legality is a complex
matter. This is due, to begin with, to the fact that the Court finds itself
at the very first stage of the proceedings, the one concerning solely the
indication of provisional measures. The Court therefore must, ex hypothesi,
refrain at this stage from pronouncing on the merits, that is, on this
international legality. The present phase allows it only to entertain a
provisional and merely prima facie idea of the case, pending later
consideration of the merits in a fully comprehensive way. The complexity of
the situation is, moreover, due primarily to the fact that the cases are
being dealt with simultaneously by two different organs, the Security
Council and the International Court of Justice. It is not the first time
that these two principal organs of the United Nations simultaneously
exercise, with respect to a single case, their respective competences under
the Charter (see, for example, the case concerning Diplomatic and Consular
Staff in Tehran or the one concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America)). But, if
the concomitant exercise of concurrent but not exclusive powers has thus far
not given rise to serious problems, the present case, by contrast, presents
the Court not only with the grave question of the possible influence of the
decisions of a principal organ on the consideration of the same question by
another principal organ, but also, more fundamentally, with the question of
the possible inconsistency between the decisions of the two organs and of
how to deal with so delicate a situation.
3. As its title indicates, the dispute of a legal nature brought before the
Court concerns essentially the interpretation and the application of the
1971 Montreal Convention. The Court is asked to determine whether the
Applicant, Libya, is under an international legal obligation to extradite
two of its nationals, who are alleged to be the perpetrators of the
Lockerbie bombing, in order that they be delivered up to the American and
British judicial authorities. The two Respondent States, the United Kingdom
[p 144] and the United States, assert that such an obligation exists,
whereas Libya contests this view, which clearly demonstrates the existence
between the three States of a well-defined legal dispute. But pending its
decision on the merits, the Court has been asked by Libya to indicate such
provisional measures as may be required to ensure that its final decision is
not deprived of effectiveness as a result of a measure or action taken by
the Parties in the meantime.
4. But in parallel with this very precise legal dispute, the United Kingdom
and the United States have brought before the Security Council another
dispute involving the Libyan State, which they accuse of being implicated in
terrorism in general and in the Lockerbie bombing in particular. This
dispute is quite different from the first one. For the first dispute
concerns the extradition of two Libyan nationals and is being dealt with,
legally, by the Court at the request of Libya, whereas the second dispute
concerns, more generally, State terrorism as well as the international
responsibility of the Libyan State and is being dealt with, politically, by
the Security Council, at the request of the United Kingdom and the United
States.
5. With regard to the role of the Court, as a judicial organ, with respect
to the first dispute, the Court is in no way requested in the present
proceedings to pass judgment on State terrorism and the international
responsibility of Libya, particularly since the two Respondent States have
presented no counter-claim in response to the Libyan Application. The second
dispute, concerning the international responsibility of Libya, has been
resolved in a strictly political way, the chief elements of the solution
being the finding that Libya is responsible, a demand of compensation for
the families of the victims and the imposition of an obligation concretely
to renounce terrorism, whereas a judicial solution, which necessarily sets
higher procedural standards, would have required, as a preliminary, the
production of evidence, adversary proceedings and respect for due process of
law.
. Libya was fully within its rights in bringing before the Court, with a
view to its judicial settlement, the dispute concerning extradition, just as
the United Kingdom and the United States were fully within their rights in
bringing before the Security Council, with a view to its political
settlement, the dispute on the international responsibility of Libya. The
respective missions of the Security Council and the Court are thus on two
distinct planes, have different objects and require specific methods of
settlement consistent with their own respective powers. Such a situation,
involving two distinct procedures before two principal organs of the United
Nations having parallel competences, is, I might add, not an unusual one, as
I observed in paragraph 2 above. But the difficulty in the present case lies
in the fact that the Security Council not only has decided to take a number
of political measures against Libya, but has also demanded from it the
extradition of its two nationals. It is this specific demand of the Council
that creates an overlap with respect to the substance of the legal dispute
with which the Court must deal, in a legal manner, on the [p 145] basis of
the 1971 Montreal Convention and international law in general. The risk thus
arose of the extradition question receiving two contradictory solutions, one
legal, the other political, and of an inconsistency between the decision of
the Court and that of the Security Council.
7. Such an inconsistency between the decisions of two United Nations organs
would be a matter of serious concern. For it is as a rule not the Court's
role to exercise appellate jurisdiction in respect of decisions taken by the
Security Council in the fulfilment of its fundamental mission of maintaining
international peace and security, no more than it is the role of the
Security Council to take the place of the Court, thereby impairing the
integrity of its international judicial function. But, at this stage of
provisional measures requested by Libya, the present case compels us to
confront this possibility of inconsistent decisions in as much as one of the
Security Council's demands creates a "grey area" in which powers may overlap
and a jurisdictional conflict comes into being. For the facts of this case
give the Court the power to indicate provisional measures to preserve the
possible right of the Applicant to refuse the extradition of two of its
nationals, whereas the Security Council has just taken a decision that is
mandatory under Chapter VII of the Charter calling for the extradition of
these two individuals.
***
8. All the necessary conditions appear to me to have been fulfilled in order
that the Court should have the power to indicate provisional measures at the
request of the Applicant, pending a decision on the merits. First of all, no
one doubts that the Court has before it a legal dispute concerning very
precise questions of law arising from the interpretation and application of
the 1971 Montreal Convention. Moreover the Court's competence is established
on the basis of Article 14, paragraph 1, of that Convention. This Article
subjects the submission of the matter to the Court to an initial
requirement, namely, that prior negotiations between the Parties should have
taken place. This requirement has been satisfied fully. The brief analysis I
made earlier of the duality and non-identity of the disputes submitted pari
passu to the Court and the Security Council shows that the negotiations
sought with a view to settling the question of the extradition were
essentially and in view of their nature destined never to become a reality.
Since Libya refused to extradite its nationals and proposed substitute
solutions (surrender of the two suspects to the United Nations, to the Arab
League, to the judicial authorities of a third country, or to an
international judicial or arbitral body, whereas the United Kingdom and the
United States only offered Libya the choice between an extradition that as a
matter of principle was not negotiable or the adoption of sanctions by the
Security Council), it was obvious that the very notion of a negotiating
process was meaningless in such a context. The case-law of the Court's
predecessor is enlightening in this regard: [p 146]
"Negotiations do not of necessity always presuppose a more or less lengthy
series of notes and dispatches; it may suffice that a discussion should have
been commenced, and this discussion may have been very short; this will be
the case if a dead lock is reached, or if finally a point is reached at
which one of the Parties definitively declares himself unable, or refuses,
to give way, and there can therefore be no doubt that the dispute cannot be
settled by diplomatic negotiation." (Mavrommatis Palestine Concessions,
P.C.I.J., Series A, No. 2, p. 13.)
This view is shared by the present Court, as shown by its relevant holdings
in the Diplomatic and Consular Staff in Tehran and the Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) cases.
9. Article 14, paragraph 1, of the 1971 Montreal Convention subjects the
possibility of seising the Court to the fulfilment of a second and prior
requirement, by virtue of which Libya would have had to await the expiration
of a six-month time-limit during which it had to seek a settlement of the
dispute by means of arbitration. There are several reasons why in the
present case this requirement does not stand in the way of the Court being
seised. It should first be noted that in response to the request for
arbitration made by Libya the Permanent Representative of the United Kingdom
to the United Nations stated that that request was "not relevant", since
this makes it obvious that the decision by the United Kingdom and the United
States to bring the matter to the Security Council so as to obtain from it a
political solution foreclosed, from the outset, any possibility of an
arbitral solution. The request for arbitration therefore appeared to be
fundamentally inappropriate and inconsistent with the political measures
which the Security Council was expected to take and were later taken.
Accordingly arbitration was inherently and as a matter of principle ruled
out, no matter how long Libya were to wait. The six-month time-limit was
altogether meaningless in as much as it was inconsistent with the type of
political settlement chosen by the two Respondent States, seeing that they
opted for submission of the matter to the Security Council last January. The
United Kingdom's characterization of arbitration as "not relevant" is not
merely a rejection of this mode of settlement, but a categorical assertion
of the inherent incompatibility between the arbitration requested and the
political solution involving sanctions that was expected from the Security
Council. And the fact that Libya subsequently made new proposals other than
arbitration is less a sign of a certain inconsistency than an indication of
the impossibility of arbitration, an impossibility of which Libya thus took
note. Moreover Article 14, paragraph 1, of the 1971 Montreal Convention
provides that it is "within six months" following the date of the request
for arbitration that the Court may be seised at the instance of either one
of the Parties. This means that it is not necessary to wait until this
time-limit has expired completely, but that, on the contrary, it is possible
to seise the Court "during" this six-month period, or "within" or "in [p
147] the course of" the period and never after its expiration. Libya is
accordingly entitled to apply to the Court at any time prior to the
expiration of the six-month time-limit. Thus the ratione temporis
requirement laid down in the Convention should be interpreted in favour of
Libya, both at the level of a literal interpretation of the text and by
reference to its spirit and its purpose, on the one hand, and the context of
this case, on the other. And, to borrow a passage that also dealt with a
question of time-limit in connection with an agreement to arbitrate,
"the terms of Articles II and III ... make it crystal clear that they are
not to be understood as laying down a precondition of the applicability of
the precise and categorical provision [of an article of a treaty]
establishing the compulsory jurisdiction of the Court" (I.C.J. Reports 1980,
pp. 25-26, para. 48).
10. There remains to be discussed the question of competence ratione
personae. It has been contended that the 1971 Montreal Convention does not
confer jurisdiction on the Court in this case since what we have here is not
the actions of individuals but an instance of State terrorism. This
contention calls for an answer at three different levels. In the first
place, Article 1 of the 1971 Montreal Convention removes all doubt on this
score to the extent that it refers to "any person" committing certain "acts"
characterized as "offences". This means that the Convention applies very
broadly to "any" person, whether that person acts on his own account or on
behalf of any organization or on the instructions of a State. The most that
can be said is that if the person that committed the offence acted as the
organ of a State, the Convention could prove to be, not inapplicable, but
rather ineffectual to the extent that the State that would opt not for
extraditing but for prosecuting the suspects itself, before its own courts,
would be judging itself, which, obviously, would not be a satisfactory
solution. In the second place, and as has already been pointed out, the
question of international responsibility of the State for unlawful acts of
this nature has been entrusted to the Security Council and does not by any
means constitute the substance of the dispute submitted to the Court
concerning the existence or otherwise of an international obligation to
extradite nationals. Thirdly, and in any event, it is important not to
overlook the nature of the present phase of the proceedings and to note that
"on a request for provisional measures the Court need not, before deciding
whether or not to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case ..., yet it ought not to indicate
such measures unless the provisions invoked by the applicant appear, prima
facie, to afford a basis on which the jurisdiction of the Court might be
founded" (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Order of 10 May 1984, I.C.J.
Reports 1984, p. 24, para. 24).
Such is the case here and the Court is prima facie competent. [p 148]
11. Needless to say, the Court may exercise jurisdiction in this case and
indicate provisional measures, by virtue of Article 41 of its Statute, only
if it considers that the circumstances so require in order that the rights
of each of the Parties be preserved. It is therefore important that the
rights capable of being protected should be identified. It has been
maintained in this regard that such rights are non-existent or illusory or
at any rate, given the imprecision of the request, insufficiently
determined. I cannot share this view. In its final submissions, Libya
presented two series of requests; one sought an injunction against the
United Kingdom and the United States in order that they abstain from
coercing Libya into extraditing its nationals, while the other sought to
protect the rights of Libya in connection with the proceedings instituted by
its Applications. The rights whose protection by means of provisional
measures Libya is requesting are, in the first place, treaty rights which
prima facie the Applicant is entitled to exercise just as much as any other
Party to the 1971 Montreal Convention. These rights are primarily the one
the Applicant has to establish its jurisdiction over the alleged
perpetrators of the bombing (Art. 5, para. 2, of the Convention); the right
to apply Libyan law to the prosecution of the suspects (Art. 5, para. 3);
the right to submit the case to its own criminal courts (Art. 7); the right,
coupled with the corresponding obligations, to grant every procedural
safeguard to the alleged perpetrators and protect them from the hasty
judgments of public opinion or the mass media; the right, finally, to claim
and obtain co-operation and judicial assistance from the other States
concerned (Art. 11). The rights to be protected are, in the second place,
those that the Applicant, as well as any other State, derives from the
United Nations Charter or general international law (respect for the
sovereignty, the territorial integrity, the political independence of the
State, non-recourse to the threat or the use of force).
12. The rights in question are neither non-existent, nor illusory, nor
indeterminate. Article 7 of the 1971 Montreal Convention, the provision that
gave rise to the most discussion and is at the heart of the Libyan
Application, categorically imposes on every State party to the Convention
the obligation either to extradite or to prosecute before its courts the
alleged perpetrators of an offence, in keeping with the traditional option
to which the maxim aut dedere aut judicare refers. Without entering into the
merits of the case, I would point out that, as is well known, there does not
exist in international law any rule that prohibits, or, on the contrary,
imposes the extradition of nationals. All that the regime laid down by the
Montreal Convention does is to complement general international law by, on
the one hand, rendering the various national laws applicable and, on the
other hand, imposing on States an "obligation to take action", in accordance
with their internal law, by either extraditing or arranging for prosecution
before their own courts. This option is now valid, if not under general
international law, at least between all the States Parties to the 1971
Montreal Convention. This being so, it has been contended that the right to
be protected here is illusory, since what we are dealing with is rather an
obligation. But could it possibly be that a State is not authorized to claim
[p 149] the right, which it derives, fundamentally, from its sovereignty,
not to be hindered in the fulfilment of its international duty? Furthermore,
it has been maintained that the 1971 Montreal Convention does not confer on
a State Party any right under Article 7 that it does not already possess by
virtue of general international law, so that even if the 1971 Montreal
Convention did not exist or Libya had not become a Party to it Libya would
remain free to deny extradition by virtue of international law. From this
observation, which is correct, an erroneous conclusion has been drawn,
namely, that the treaty right to be protected is non-existent, or illusory,
in as much as Article 7 does not confer an additional right on a State. But
is it conceivable that a right recognized by general international law and
confirmed by an international convention would cease to exist altogether and
no longer be entitled to protection as a result merely of its confirmation,
which, on the contrary, would, it appears, strengthen it? In truth, this
line of reasoning is based on the implicit view that in this case the Court
could only apply the 1971 Montreal Convention, to the exclusion of general
international law, whereas, obviously, the Court's Statute and its general
mission spontaneously oblige it to apply that law.
13. The Court indicates provisional measures only to the extent that the
rights recognized prima facie are threatened with disappearance. In the
present case it does not appear necessary to dwell at great length on the
irreparable nature of the prejudice that would result from the disappearance
of these rights before the Court's decision on the merits. If the Applicant
State is subjected to coercive measures, irrespective of their nature, with
a view to bringing about its consent to the extradition of its nationals,
notwithstanding that express provisions of its constitution or its laws
prohibit it from doing so, can this mean anything other than that it has
been compelled to waive a right recognized prima facie and that it has been
forced to violate its own legislation? It is therefore clear that if this
right is not protected by provisional measures, the possibility that it may
disappear purely and simply cannot be rejected, so that, from this
viewpoint, the prejudice would be irreparable in that the right that has
been lost could not thereafter be restored. The threat of disappearance of
this right was so real that it subsequently became a reality with the
adoption of resolution 748 (1992), which in effect put an end to it!
14. As regards the question of urgency, which is another element the
case-law of the Court traditionally takes into account in deciding whether
or not to indicate provisional measures, it is abundantly clear that this
urgency does exist in the case in point. Libya is asked to reply
"immediately", or "without any further delay" to the requests of the two
Respondent States, particularly as regards the extradition of its nationals.
15. On the basis of all the foregoing, I have reached the conclusion that
all the conditions exist in the present case for the Court to indicate
provisional measures. There is no doubt that this power, which the Court
enjoys under Article 41 of its Statute, is wholly discretionary and that the
Court must undertake an independent assessment of the "circumstances" in [p
150] order to ascertain whether they "require" the indication of provisional
measures. But this examination is anything but arbitrary. If the case-law
has gradually established the criteria and conditions which have to be
fulfilled, here is the very proof that its appreciation does not possess
this unpredictable and subjective character.
And even supposing the requests of the Applicant State still seemed
imprecise, it is for the Court to indicate such provisional measures as it
may deem to be more precise and more in conformity with the requirements of
the case and the needs of the circumstances. Article 75, paragraph 2, of the
Rules of Court authorizes the Court to "indicate measures that are in whole
or in part other than those requested, or that ought to be taken or complied
with by the party which has itself made the request". This Article therefore
gives to the Court very broad scope, which, in this case, might even have
extended to ordering the Applicant State to place the two presumed authors
of the offence under the provisional authority and custody of a third State,
of an international or regional organization, or even, why not, under the
authority of the Court.
***
16. The Court has not ordered any of the provisional measures that the
examination of the case should, in my view, have dictated to it and this is
why, regretfully, I continue to have reservations about its decision. It is
true that the legal dispute concerning extradition and of which the Court is
seised is related to another dispute, dealt with politically by the Security
Council, and relating in a broader sense to the international responsibility
of the Applicant State. And in paragraphs 6 and 7 of this opinion, I pointed
to the existence of an overlapping or "grey area" between the respective
competences of the Security Council and the International Court of Justice,
since the Council found it necessary to include in its requests to Libya a
request for extradition, with which the Court is also dealing. In fact, the
two Orders of the Court are limited to taking account of Security Council
resolution 748 of 31 March 1992, which lays down sanctions taking effect
against the Applicant State on 15 April if it has not, inter alia,
extradited its two nationals. Hence, each of the two Orders contains an
operative paragraph which is nothing more than a rejection of the request
for provisional measures. This rejection does not appear to stem from the
actual merits of the case and the intrinsic value of the Application, but
rather from considerations and decisions external to the case, which could
pose the problem of the integrity of the legal function. The two Orders do
not appear to be an expression of the Court's discretionary power to refrain
from indicating provisional measures; on the contrary, they are a result of
a power "constrained" by a decision of the Security Council which, among
other things, concerned the very object of the legal dispute submitted to
the Court.
***[p 151]
17. A procedural point needs to be made at the outset. Within the context of
the political approach that the Security Council was perfectly entitled to
adopt in dealing with the wider case of the international responsibility of
a State, the Council adopted resolution 731 of 21 January 1992 under Chapter
VI of the Charter and resolution 748 of 31 March 1992 under Chapter VII. It
is important to establish the relationship between these resolutions and the
legal dispute submitted to the Court. When the Court was seised of the
Libyan Applications on 3 March, resolution 731 (1992), the first one, had
already been adopted and the Parties had discussed it at length before the
Court. Resolution 748 of 31 March 1992, on the other hand, was outside the
purview of the case since it did not yet have any legal existence when the
proceedings before the Court came to an end on 28 March 1992. A binding
resolution of such importance, which had been notified to all States and was
opposable to each of them, was naturally known to them. But it is one thing
to know of that resolution and even to implement it, and another to "rely"
on it before an international court. Unless formal (and adversary)
procedures were instituted by the Parties to the dispute, the Court, it
would appear, was not obliged to take into account a resolution passed after
the closure of the proceedings and to apply it, retroactively as it were, to
the case which had been submitted to it. The Court nevertheless deemed it
better itself to take the initiative of eliciting the observations of the
parties on this point, during the deliberations. Regardless of the opinion
one may have on the merits of this procedure, the fact is that resolution
748 (1992), which was adopted subsequent to the closure of the oral
proceedings before the Court, was considered by it.
***
18. It seems that the Court was right not to allow itself at any time to be
tempted to pronounce on the validity of the way the Security Council had
intended to deal with the case of the international responsibility of a
State for terrorist activities, which is wider than the dispute here.
Leaving aside the thorny problem of the possible jurisdiction of the Court
as regards contentious proceedings on the legality of the decisions of the
Security Council, and also the fact that, in any case, the exercise of this
possible jurisdiction would be premature at the present stage of a request
for the indication of provisional measures, all that needs to be borne in
mind is that the Court has not been seised of this vast dispute, brought
before the Security Council. The Court was therefore right to refrain from
reviewing the exercise by the Security Council of its exclusive power to
deal with this case politically, that is to say, without regard to the norms
and procedures applicable in a judicial institution such as the Court. Since
the Court is unable to forget that it has not been seised, or, moreover,
that it finds itself at a stage where it is refraining from dealing with the
merits, it cannot apply its judicial criteria in order to assess in any way
the legality of this political way of dealing with the matter, even if the
view is held that at least [p 152] two facts should have prompted the
Security Council to be especially circumspect about condemning Libya: on the
one hand, the police enquiry seemed to have hesitated for a long time
between a number of other avenues and, on the other hand, General Assembly
resolution 41/38 of 20 November 1986 had cleared Libya, after the event, of
unlawful acts for which, however, it paid in 1986 by the bombing of its
territory at Tripoli and Benghazi.
19. The fact remains that the Court has refused, in a manner quite beyond
reproach, to follow one of the Parties in criticizing the action of the
Security Council, which had not considered requesting the Court for an
Advisory Opinion that could have provided it with guidance before the
adoption of resolution 731 of 21 January 1992. The fact that the Council
refrained from doing this may be regrettable, but there is, alas, no
provision in the Charter making it mandatory to consult the Court. On the
contrary, everything indicated that the Council intended throughout to deal
politically with a political case, whereas
"the Court ... has conceived of its advisory jurisdiction as a judicial
function, and in its exercise of this jurisdiction it has kept within the
limits which characterize judicial action. It has acted not as an 'academy
of jurists' but as a responsible 'magistrature'" (Manley O. Hudson, The
Permanent Court of International Justice, 1920-1942, p. 511).
By the same token, it was not possible to exercise a judicial review of the
Council's action when, by adopting its resolution 731 (1992), it had placed
itself firmly within the bounds of Chapter VI of the Charter relating to the
peaceful settlement of disputes, but had shown a preference for certain
methods of settlement over others. Thus, it did not encourage the States
which had seised it to refer the matter to the Court, whereas Article 36,
paragraph 3, of the Charter apparently imposed upon it a certain duty to
"take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance
with the provisions of the Statute of the Court".
20. Similarly, it is hard to see how the Security Council could be censured
for having moved from Chapter VI, under which resolution 731 (1992) was
adopted, to Chapter VII, the basis of resolution 748 (1992), thus
discretionarily characterizing a situation as likely to threaten
international peace and security. However, we know that, in the case of the
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), certain judges had objected to the way the Security Council had
exercised its discretionary power to deal with "a situation ... under the
head of the maintenance of international peace and security" (I.C.J. Reports
1971, dissenting opinion Andre Gros, p. 340, para. 34). :[p 153]
"That is another attempt to modify the principles of the Charter as regards
the powers vested by States in the organs they instituted. To assert that a
matter may have a distant repercussion on the maintenance of peace is not
enough to turn the Security Council into a world Government." (Ibid.)
Another judge also stated in the same case, in relation to Article 24 of the
Charter, that it
"does not limit the occasions on which the Security Council can act in the
preservation of peace and security, provided the threat said to be involved
is not a mere figment or pretext" (dissenting opinion Fitzmaurice, ibid., p.
293, para. 112).
Further on, the same judge added that certain
"limitations on the powers of the Security Council are necessary because of
the all too great ease with which any acutely controversial international
situation can be represented as involving a latent threat to peace and
security, even where it is really too remote genuinely to constitute one.
Without these limitations, the functions of the Security Council could be
used for purposes never originally intended ... [There was] no threat to
peace and security other than such as might be artificially created as a
pretext for the realization of ulterior purposes." (Ibid., p. 294, para.
116.)
21. These opinions appeared at a time when the Court was to discuss the
consequences of the termination of South Africa's mandate over Namibia,
decided upon by the General Assembly and "confirmed" by the Security
Council. What matters here is obviously not the case in itself, but the
discussion, symptomatic as well as topical, set in motion concerning the
limits which can be assigned to the action of the Security Council and the
desire expressed by certain judges to avoid a situation where it "exceeds
its competence" (dissenting opinion Fitzmaurice, ibid., p. 295, para. 116 in
fine). Generally speaking, the question of the validity of the resolutions
of the principal United Nations organs with respect to the Charter and/or
international law has been the subject of numerous studies and prestigious
authors have, in the past, questioned the legality of some of these
resolutions (see, for example, Hans Kelsen, The Law of United Nations,
London, 1951, pp. 195, 197 et seq., 287 et seq. and passim). But in the
present case, how can the Court, which is not seised of the wider dispute,
dispute the fact that the Security Council is responsible for qualifying
international situations and that it can place itself within the purview of
Chapter VII of the Charter, even if no small number of people may find it
disconcerting that the horrific Lockerbie bombing should be seen today as an
urgent threat to international peace when it took place over three years
ago?
***[p 154]
22. Hence, if the simple but essential distinction made at the beginning of
this opinion is borne in mind, between the quite specific juridical dispute
submitted to the Court and the much wider political dispute brought before
the Security Council, it becomes perfectly understandable that, given its
functions and powers, the Court has no alternative but to refrain from
entertaining any aspect whatever of the political solutions arrived at by
the Security Council. The Court's attitude in this respect continues to be
defensible so long as no aspect of these political solutions adopted by the
Council sets aside, rules out or renders impossible the juridical solution
expected of the Court. It is clear that, in this case, it is the judicial
function itself which would be impaired. Indeed, this is what is happening
here in the area where these two disputes overlap, where the solution
arrived at by the Council to the question of the extradition of two
individuals deprives a solution found by the Court of all meaning.
23. Such a situation, in which, on the basis of the inherent validity of the
case, the Court should have indicated provisional measures solely in order
to protect a right that the Security Council annihilates by its resolution
748 (1992) when the case is sub judice, is not satisfactory for the judicial
function. It is even less so when one of the two Respondents, the United
States of America, asks the Court quite simply to refrain from exercising
its judicial duty and to bow to the Security Council "in order to avoid any
conflict" with it. In a letter of 7 April 1992, the Agent of the United
States of America, in reply to the letter of 4 April by which the Court
invited the Respondent to make observations on the consequences of
resolution 748 (1992) for the present proceedings, had stated that "in order
to avoid any conflict with the Security Council the Court should decline the
request to indicate provisional measures in this case" (emphasis added).
Precisely the same thing was demanded of the Court by one of the United
States counsel during the hearings, that is to say, before resolution 748
(1992) came into force. "The Court", he said, "ought to examine whether its
actions would conflict with the actions that the Council has taken or is
considering ..." (Public sitting of 27 March 1992, CR 92/4, p. 55). Such
invitations clearly made to the Court to refrain from exercising its
judicial function independently are puzzling. In the past the Security
Council awaited the Court's decision. In the Anglo-Iranian Oil Co. case, the
Council, before which the matter had been brought in 1951 by the United
Kingdom, which was asking it to take measures against Iran, postponed
discussion until the Court's decision. Also today, in the Security Council,
a number of member States, whether or not they voted for resolutions 731
(1992) and 748 (1992), have expressed their deep conviction that it is
necessary to allow the Court to perform its task and, in fact, they are
expecting the Court to lay down international legality.
***[p 155]
24. Security Council resolution 748 of 31 March 1992 states, in paragraph 1,
"that the Libyan Government must now comply without any further delay with
paragraph 3 of resolution 731 (1992) ... regarding the requests" that the
two Respondents had made to it and, in particular, the request for
extradition, which is the whole subject of the present proceedings. This is
where the "conflict" lies. During the hearings, the Applicant State had
already raised the question of the constitutional validity of resolution 731
of 21 January 1992 in general terms, resolution 748 (1992) not yet having
come into force (Public sitting of 26 March 1992, CR 92/2). This question of
validity is liable to raise two major problems, at once serious and complex,
namely, whether the Security Council should, in its action, firstly respect
the United Nations Charter and secondly respect general international law.
25. The first problem is perhaps the less difficult of the two. Simplifying
a great deal, one could say that it would not be unreasonable to state that
the Security Council must respect the Charter, on the one hand because it is
the act to which it owes its very existence and also and above all because
it serves this Charter and the United Nations Organization. The travaux
preparatoires of the San Francisco Conference showed the degree of concern
aroused by this problem and it transpires therefrom that the spirit of the
Charter is indeed to prevent the Security Council from diverging in any way
at all from that Charter.
But over and above the spirit of the Charter, the actual text points the
same way. Article 24, paragraph 2, of the Charter expressly states that "in
discharging (its) duties, the Security Council shall act in accordance with
the Purposes and Principles of the United Nations". In that case, one of the
questions which would arise would be whether one organ can act in a way
which renders the role of the other impossible. And this applies as much to
the Security Council as to the Court itself, in as much as it is true that
the Charter lays down that each of the United Nations organs should carry
out its task fully and not abdicate any part of it to assist in the
accomplishment of the purposes and principles of the United Nations. Now,
Article 92 of the Charter states that the Court is the principal judicial
organ of the United Nations and Article 36 of the Court's Statute, which is
an integral part of the Charter, confers upon the Court the power to settle
"all legal disputes concerning (a) the interpretation of a treaty, (b) any
question of international law; ...".
26. The second problem, relating to respect for international law by the
Security Council, is a more acute one. In laying down that the Council
"shall act in accordance with the purposes and principles" of the Charter,
Article 24 of the Charter (which I have already cited) refers to Article 1,
paragraph 1, which provides that the action of the Security Council (as that
is essentially what is referred to in the context of that Article) is to
take measures "in conformity with the principles of justice and
international law". Of course, the Council must act in accordance with the
"principles of justice" - a relatively vague expression - just as it should
also draw inspiration from other principles of a political or other nature.
[p 156] However, is not the essential point of concern to us here the fact
that the Council is bound to respect "the principles of international law",
an expression that holds a more precise meaning for international lawyers? A
former judge of the Court, Sir Gerald Fitzmaurice, said with reference to
such a principle that:
"This is a principle of international law that is as well-established as any
there can be, - and the Security Council is as much subject to it (for the
United Nations is itself a subject of international law) as any of its
individual member States are." (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970, Advisory Opinion,
I.C.J. Reports 1971, dissenting opinion Fitzmaurice, p. 294, para. 115.)
27. However, in so far as the question of the validity of resolution 731
(1992) and, more particularly, of resolution 748 (1992) may arise with
respect to the Charter or with respect to international law, one also needs
to take account of the fact that the Court cannot, at this preliminary stage
of the proceedings, decide on substantive issues in the two cases. This
means that the situation is, in my view, one that must be summed up as
follows: on the one hand, I consider that the rights alleged by Libya do
exist prima facie and that all the conditions normally laid down by the
Court for the indication of provisional measures have been met in this case,
so that those rights may be preserved in accordance with Article 41 of the
Statute of the Court. Moreover, it is on this point that I have reservations
about the two Orders of the Court - even though the Court, in its statement
of reasoning, does not completely set aside the possibility of indicating
provisional measures, judging from paragraph 43 of the Order ("whatever the
situation previous to the adoption of that resolution (i.e., 748 (1992))").
However, from another standpoint, Security Council resolution 748 (1992) has
annihilated those rights of Libya, without it being possible for the Court,
in this phase of provisional measures or, in other words, of a preliminary
examination prima facie, to take it upon itself to give a premature decision
on the substantive issue of the constitutional validity of that resolution,
so that the resolution benefits from a presumption of validity and must be
considered prima facie as both lawful and bindingFN1. I am accordingly in
agreement with the majority of the Court on this second point.
---------------------------------------------------------------------------------------------------------------------
FN1 Unless one supposes that resolution 748 (1992) has as its object, or
effect, not to withdraw a right from an Applicant State, but to prevent the
exercise, by the Court itself, of the judicial function with which it has
been invested by the Charter, in which case one might be led to ponder
seriously over the lawfulness of that resolution, even at this stage of
provisional measures. It would, indeed, be manifestly incompatible with the
Charter for an organ of the United Nations to prevent the Court from
accomplishing its mission, or for it actually to place the Court in a state
of subordination which would be contrary to the principle of separation and
independence of the judicial from the executive power, within the United
Nations.
---------------------------------------------------------------------------------------------------------------------
[p 157]
28. Accordingly, and as the Court has stated, Libya, as a member State of
the United Nations, appears bound to accept and apply Security Council
resolution 748 (1992), which is taken to be lawful and binding at this stage
of the proceedings, even though Article 25 of the Charter does not overlook
the need for it to accord with the Charter (in an ambiguous form of words
which may seem to impose that conformity with respect to both the resolution
and its acceptance by member States).
29. The situation thus characterized, with rights which deserve protection
by the indication of provisional measures but have also been annihilated by
a Security Council resolution that should be deemed prima facie to be valid,
does not fall completely within the framework of Article 103 of the Charter,
but in fact goes slightly beyond it. That Article, which gives precedence to
obligations under the Charter (i.e., Libya's obligation to comply with
resolution 748 (1992)) as compared to obligations "under any other
international agreement" (here the 1971 Montreal Convention) is aimed at
"obligations" - whereas we are dealing with alleged "rights" such as, in my
view, are protected by provisional measures - and, in addition, does not
cover such rights as may have other than conventional sources and be derived
from general international law.
30. Subject to this minor nuance, it is clear that the Court could do no
more than take note of that situation and hold that, at this stage of the
proceedings, such a "conflict", governed by Article 103 of the Charter,
would ultimately deprive the indication of provisional measures of any
useful effect. However, the operative part of the two Orders places itself
at the threshold of the whole matter and decides that the Court, in the
circumstances of the case, is not required to exercise its power to indicate
provisional measures. I take the rather different view that the facts of the
case do indeed justify the effective exercise of that power, while I would
point out that its effects have been nullified by resolution 748 (1992).
This means that I arrive, concretely, at the same result as the Court,
albeit by means of a quite different approach, but also with the important
difference that I am not led to reject the request for provisional measures,
but rather to say that its effects have ceased to exist. Moreover, I
subscribe to the opinion of the majority, according to which the Court
"cannot make definitive findings either of fact or of law on the issues
relating to the merits, and the right of the parties to contest such issues
at this stage of the merits must remain unaffected by the Court's decision"
(para. 41)
and, in addition, "the decision given in these proceedings in no way
prejudges any (of the) question(s) (raised before the Court ... including
the question relating to its jurisdiction to deal with the merits)", leaving
"unaffected the rights of the Government of Libya and the Government of (the
United Kingdom, the United States) to submit arguments in respect of any of
those questions" (para. 45).
***[p 158]
31. That said, I would like to return to the opinion I expressed earlier
that it should have been imperative for the Court to indicate provisional
measures on the basis of the facts of the case submitted to it - even if the
effects of that decision might have been negated by resolution 748 (1992). I
would add that, even if the majority had been in some doubt - which I
personally do not share - as to the capacity of the Applicant State to have
satisfied one or the other prerequisite for the indication of provisional
measures, the Court still had the option of itself indicating, proprio motu,
any provisional measures which it might have considered more appropriate
than those requested of it by the Applicant State. That would have been in
conformity not only with Article 41 of the Statute and Article 75 of the
Rules, but also with the Court's jurisprudence. Thus in the case concerning
the Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures,
Order of 10 January 1986 (I.C.J. Reports 1986, p. 9, para. 18), the Court
held that:
"independently of the requests submitted by the Parties for the indication
of provisional measures, the Court or, accordingly, the chamber possesses by
virtue of Article 41 of the Statute the power to indicate provisional
measures with a view to preventing the aggravation or extension of the
dispute whenever it considers that circumstances so require" (emphasis
added).
32. This is a case-law which, instead of focussing on a review of each
prerequisite to the indication of provisional measures, gives pride of place
to a comprehensive analysis of the "circumstances" of the case, it being
decided, on that basis, to indicate those measures in the general terms of
an exhortation to all the parties not to aggravate or extend the dispute.
The provisional measure thus taken, in the form of an exhortation, does not
in any way depend upon the indication of other, more specific provisional
measures. The exhortation is an independent measure which is not necessarily
connected or linked to any others, so that, even though the Court might have
been justified, in the present case, in finding that there had been a
failure to satisfy a given prerequisite for the indication of certain
specific measures, it at least had the option of indicating a general,
independent measure, in the form of an appeal to the parties to refrain from
aggravating or extending the dispute or of an exhortation to them to
collaborate in a search for settlement out of court, either directly or
through the intermediary of the Secretariat of the United Nations or the
Secretariat of the Arab League - which, moreover, is what is currently being
attempted.
33. Such is the wide range of what is available in the relevant holding in
the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
which was extended, in an interesting fashion, by the recent decision in the
case concerning Passage through the Great Belt (Finland v. Denmark). In the
latter case, the Court began by recalling its decision in the Free Zones
case, in which it had held that: [p 159]
"The judicial settlement of international disputes, with a view to which the
Court has been established, is simply an alternative to the direct and
friendly settlement of such disputes between the Parties; ... consequently
it is for the Court to facilitate, so far as is compatible with its Statute,
such direct and friendly settlement ..." (Free Zones of Upper Savoy and the
District of Gex, Order of 10 January 1929, P.C.I.J., Series A, No. 22, p.
13; see also Frontier Dispute, Provisional Measures, Order of 10 January
1986, I.C.J. Reports 1986, p. 577, para. 46.)
The Court went on to say that:
"pending a decision of the Court on the merits, any negotiation between the
Parties with a view to achieving a direct and friendly settlement is to be
welcomed" (I.C.J. Reports 1991, p. 20, para. 35).
34. What is more, regard being had to the seriousness of the circumstances
of this case, would not an indication of a provisional measure of that kind
have been an elegant way of overcoming the deadlock brought about by the
opposition between, on the one hand, the more specific provisional measures
that the Court might have indicated on the basis of the Applicant's requests
and, on the other hand, Security Council resolution 748 (1992), which would,
in any event, have negated them? It would have been an elegant way of
getting around a major difficulty and, at the same time, a very advantageous
way of promoting a settlement, for the good of all concerned, along lines
that it in fact seems to be taking.
I accordingly regret that the Court was not able to indicate either specific
provisional measures at the request of the Applicant State, or general
measures proprio motu, in order to make its own positive contribution to the
settlement of the dispute. It follows that, when all is said and done, my
only course of action is to vote against the two Orders.
(Signed) Mohammed Bedjaoui.
[p 160]
Dissenting opinion of judge Weeramantry
This application for provisional measures was, as required by Article 74 (1)
of the Rules of Court, given priority over all other cases pending before
the Court. The oral submissions were concluded on 28 March. Three days
later, when the case was at the stage of deliberations, resolution 748
(1992) was adopted by the Security Council. Resolution 748 (1992) covered
matters of importance which were sub judice before the Court and the impact
of that resolution upon the matters before the Court is among the legal
questions discussed in this opinion.
Without determining definitively the legal effect of that resolution, the
validity of which is disputed by Libya, we must at the present stage of
provisional measures act upon the basis of its validity. Article 25 of the
United Nations Charter, requiring Members of the United Nations to accept
and carry out decisions of the Council, must then be regarded as prima facie
applicable to that resolution. In reaching these conclusions, I agree with
the views of the majority of the Court but I respectfully dissent from the
view that that resolution renders it inappropriate for the Court to issue
provisional measures. The reasons for this view are set out in this
dissenting opinion. It deals with important questions of law canvassed at
some length before us which are of a significance reaching so far beyond the
immediate case as, in my opinion, to merit some extended examination.
Two matters argued at some length before us, to which I shall confine my
observations, are the question of jurisdiction and the relationship between
this Court and the Security Council. The main assertions of fact and the
basic contentions of the Parties are sufficiently set out in the Order of
the Court and I need not recapitulate them here.
A. Jurisdiction
Article 14 (1) of the Montreal Convention is the foundation of the Court's
jurisdiction to entertain this application. It stipulates a six-month period
from the date of request for arbitration within which if parties are unable
to agree on the organization of the arbitration, any one of them may refer a
dispute to the International Court.
The Respondents have contended that the pre-conditions to the jurisdiction
of this Court have not been satisfied inasmuch as there is no "dis-[p
161]pute" within the meaning of Article 14 (1) and that, in any event, the
stipulated six-month period has not elapsed.
At the present stage of proceedings it is inappropriate to give a narrow or
restrictive meaning to the word "dispute". I am satisfied prima facie that
there is a substantial dispute between the Parties, for Libya relies on the
rule of customary international law, aut dedere aut judicare, as the
governing principle which entitles it to try its own citizens in the absence
of an extradition treaty, while the Respondent demands the surrender of the
two suspects. Libya declares that it will try them and has invited the
Respondent to send its officials and lawyers to observe the trial, arguing
that it is thus satisfying its obligations under the Treaty. The Respondent
demands that the suspects be tried in its own courts. Libya contends that
its domestic law forbids the surrender of its citizens for trial elsewhere
and that the Respondent's demand is an infringement of its sovereignty. The
Respondent denies that this is a valid excuse for not surrendering them. All
of this in my view amounts prima facie at any rate to a dispute, thus
satisfying one of the prerequisites of Article 14 (1).
The Respondent's further contention, which is a more substantial one, is
that the letter in which Libya first mentioned arbitration was dated 18
January and this case was instituted on 3 March, well before six months had
elapsed. It contends therefore that an essential prerequisite to the
invocation of the Court's jurisdiction has not been satisfied. This may well
be a correct statement of the legal position.
At the same time, there is another view that is plausible and is certainly
arguable. That is, that where a party has in anticipation indicated that it
will not consider itself bound by mediation or negotiation, the insistence
by that party on a waiting period specified as a prerequisite before the
matter is taken to the International Court could defeat the purposes of such
a provision. Material has been placed before us to the effect that the
United States had stated to the Security Council that this was not a
difference of approach that could be mediated or negotiated (S/PV 3033, 21
January 1982, p. 7) and that the Security Council must not be distracted by
Libyan attempts to convert this issue of international peace and security
into one of bilateral differences (ibid.). In other words, the argument
placed before us was one of anticipatory repudiation of a consensual
obligation
The question of law before us is this: if, in a hypothetical case, a party
refuses negotiation, can such party insist on the six-month period of delay
before the matter is brought to this Court? Such insistence can well be a
roadblock in the path of a party seeking relief from this Court. The
provision can then be construed to mean that a party is free to use other
methods than conciliation during this six-month period. Such a construction
could well be a negation of the purposes and principles of such a provision,
as was cogently stated by Judge Ago in his separate opinion [p 162] in the
Preliminary Objections phase of the case concerning Military and
Paramilitary Activities in and against Nicaragua:
"I am in fact convinced that prior resort to diplomatic negotiations cannot
constitute an absolute requirement, to be satisfied even when the
hopelessness of expecting any negotiations to succeed is clear from the
state of relations between the parties, and there is no warrant for using it
as a ground for delaying the opening of arbitral or judicial proceedings
when provision for recourse to them exists." (I.C.J. Reports 1984, pp.
515-516.)
The general principle set out in that passage can be even more pointedly
formulated in the context of a specified waiting period such as is
stipulated in the Montreal Convention. It can be plausibly argued that there
is no purpose in allowing a party who has repudiated conciliation to argue
for the rejection of an application on grounds of its non-compliance with
procedures which it has itself rejected. A period of freedom from
conciliatory and judicial processes would thus be given to the party
repudiating, leaving it at liberty to pursue other non-conciliatory
procedures, while its opponent is required to stand by without help or
remedy.
Such a construction of the Article fits also within theories of
interpretation which emphasize that treaty provisions must be so interpreted
as not to render nugatory their object and purpose. One cannot without
further consideration conclude whether one or the other view should prevail.
They both have much to be said for them and we are in a situation where we
can only say that the view that the six-month period in Article 14 (1) does
not constitute an absolute prohibition is at least an arguable one.
The recitals in the Court's Order in the Nuclear Tests cases also bear out
this provisional approach to jurisdiction:
"13. Whereas on a request for provisional measures the Court need not,
before indicating them, finally satisfy itself that it has jurisdiction on
the merits of the case, and yet ought not to indicate such measures unless
the provisions invoked by the Applicant appear, prima facie, to afford a
basis on which the jurisdiction of the Court might be founded;
...........................................................
17. Whereas the material submitted to the Court leads it to the conclusion,
at the present stage of the proceedings, that the provi-[p 163]sions invoked
by the Applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be founded; and whereas the Court will
accordingly proceed to examine the Applicant's request for the indication of
interim measures of protection; ..." (I.C.J. Reports 1973, pp. 101, 102.)
Applying this reasoning, I would hold that the circumstances invoked by the
Applicant appear, prima facie, to afford a basis on which the jurisdiction
of the Court might be founded.
If, after the issue of such provisional measures, it appears at a later
stage or at the stage of consideration of the merits that the Court has no
jurisdiction, then the provisional measures would immediately cease to have
effect.
Granted this conclusion in regard to the Court's jurisdiction under Article
14 of the Montreal Convention, the next major question is whether Security
Council resolutions 731 (1992) and 748 (1992) present obstacles to the
Court's consideration of this matter. This question receives attention in
the next section of this opinion.
B. The Court and the Security Council.
Relevance to the Matters before the Court
This case has raised as perhaps no case has done in the past, certain
questions of importance and interest concerning the respective functions of
this Court and the Security Council. These matters arose squarely before the
Court at the stage of oral submissions in consequence of resolution 731
(1992). This relationship has assumed even more importance subsequent to the
close of the oral argument, with the adoption of resolution 748 (1992).
Issues relative to the relationship between the Court and the Security
Council were specifically raised by both Parties before us.
Counsel for Libya, Professor Suy, urged that resolution 731 (1992) "flies in
the face of the whole of the procedure for the peaceful settlement of
disputes provided for in the Montreal Convention" and hence that Libya was
entitled to submit to the International Court the legal aspects of the
question which were neglected by the Security Council (Public Sitting of 26
March 1992, (morning) CR92/2, p. 61). He argued further that the right of
Libya to exercise its criminal jurisdiction over its own subjects is a
fundamental right derived from the sovereignty of the State, a right which
cannot be derogated from.
The Agent for the United States, Mr. Williamson, stated as one of his four
basic contentions "that the Libyan requests to the Court should be denied
because the Security Council is actively seized with the issue" [p 164]
(Public Sitting of 27 March 1992, CR92/4, p. 16). Counsel for the United
States submitted that the Court ought to examine whether its actions would
conflict with actions which the Council has taken or is considering (ibid.,
p. 67), and, while conceding that the Court and the Council may properly
exercise their respective functions simultaneously in regard to the same
matter, submitted that neither the Charter nor the practice of the Court
provides a basis for interfering with the exercise by the Council of its
primary responsibility for maintaining international peace and security
(ibid., p. 36).
Here, unequivocally presented to the Court, was an invitation to address the
issue of the relationship between Court and Council in the context of
resolution 731 (1992). Resolution 748 (1992), be it noted, was not before
the Court at the stage of argument but later assumed even greater importance
than resolution 731 (1992).
In considering an application for provisional measures in the context of
resolution 731 (1992) and in the context of the arguments addressed to us,
the Court was under the necessity of considering the legal issue of the
impact, if any, upon the Court's jurisdiction of the action of the Security
Council in adopting resolution 731 (1992). Similar considerations now apply
to resolution 748 (1992).
The relationship between the Security Council and the Court, thus firmly
embedded within the legal arguments addressed to the Court, requires some
preliminary consideration, in the manner appropriate to an application for
provisional relief. Definitive findings on these important matters are not
necessary at the stage of provisional measures and, of course, are not
attempted here. What is sought rather is to outline the general contours of
the problem so that the application for provisional measures can be seen
against the legal background provided by the Charter of the United Nations.
The analysis in the ensuing subheads of discussion is essential as being
directly relevant to the application for provisional measures which is now
before the Court and to the objections raised thereto on the basis of the
organizational structure of the United Nations.
It seems all the more important to set them down having regard to the fact
that these considerations have never before in the jurisprudence of the
Court arisen in this direct and immediate way and having regard to the
advantage the Court has had of a presentation before it on these issues by
teams of extremely eminent and experienced international lawyers.
The Court as a judicial body seised of an application for provisional
measures was moreover the appropriate forum for examining the legal impact
on its determinations, of Security Council resolution 731 (1992). It was
contended, on the one hand, that the fact of the Security Council being
seised of the matter prevented the Court from granting the relief sought,
while, on the other hand, that resolution was impugned as neglecting certain
legal considerations which the Security Council was allegedly [p 165] bound
to consider. These were pre-eminently questions of law which the Court was
bound to examine as a prerequisite to considering whether provisional
measures were to be issued.
General Observations
Created by the same Charter to fulfil in common the Purposes and Principles
of the United Nations, the Security Council and the Court are complementary
to each other, each performing the special role allotted to it by their
common instrument of creation. Both owe loyalty alike to the same instrument
which provides their authority and prescribes their goals. As with the great
branches of government within a domestic jurisdiction such as the executive
and the judiciary, they perform their mission for the common benefit of the
greater system of which they are a part.
In the United Nations system, the sphere of each of these bodies is laid
down in the Charter, as within a domestic jurisdiction it may be laid down
in a constitution. However, unlike in many domestic systems where the
judicial arm may sit in review over the actions of the executive arm,
subjecting those acts to the test of legality under the Constitution, in the
United Nations system the International Court of Justice is not vested with
the review or appellate jurisdiction often given to the highest courts
within a domestic framework (see Advisory Opinion of the International Court
in Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), I.C.J. Reports 1971, p. 16). At the same time, it is the
principal organ of the United Nations, charged with the task, inter alia ,
of deciding in accordance with international law such disputes as are
submitted to it (Art. 38 of the Statute of the Court).
An important difference must also be noted between the division of powers in
municipal systems and the distribution of powers between the principal
organs of the United Nations, for there is not among the United Nations
organizations the same strict principle of separation of powers one
sometimes finds in municipal systems. As this Court observed in the case
concerning Military and Paramilitary Activities in and against Nicaragua,
municipal law concepts of separation of powers "are not applicable to the
relations among international institutions for the settlement of disputes" (
I.C.J. Reports 1984, p. 433, para. 92). Nor is there a hierarchical
arrangement of the organs of the United Nations (Rosenne, The Law and
Practice of the International Court of Justice, 2nd rev. ed., p. 70), and
each principal organ is par inter pares (ibid., p. 71).
As a judicial organ, it will be the Court's duty from time to time to
examine and determine from a strictly legal point of view matters which may
at the same time be the subject of determination from an executive or
political point of view by another principal organ of the United Nations. [p
166] The Court by virtue of its nature and constitution applies to the
matter before it the concepts, the criteria and the methodology of the
judicial process which other organs of the United Nations are naturally not
obliged to do. The concepts it uses are juridical concepts, its criteria are
standards of legality, it method is that of legal proof. Its tests of
validity and the bases of its decisions are naturally not the same as they
would be before a political or executive organ of the United Nations.
Yet this much they have in common - that all organs alike exercise their
authority under and in terms of the Charter. There can never truly be a
question of opposition of one organ to another but rather a common
subjection of all organs to the Charter. The interpretation of Charter
provisions is primarily a matter of law, and such questions of law may in
appropriate circumstances come before the Court for judicial determination.
When this does occur, the Court acts as guardian of the Charter and of
international law for, in the international arena, there is no higher body
charged with judicial functions and with the determination of questions of
interpretation and application of international law. Anchored to the Charter
in particular and to international law in general, the Court considers such
legal matters as are properly brought before it and the fact that its
judicial decision based upon the law may have political consequences is not
a factor that would deflect it from discharging its duties under the Charter
of the United Nations and the Statute of the Court.
The judicial function in resolving disputes and other matters duly referred
to it and in deciding in accordance with international law as applied and
interpreted by the Court is the Court's function and very raison d'être. Dr.
Rosenne's analysis of the relationship between the principal organs
concludes that what lies at the heart of their relationship is that "the
will of the Organization is made manifest by the actions of those organs
within whose sphere of competence a particular matter lies" (Rosenne, op.
cit., p. 69). What pertains to the judicial function is the proper sphere of
competence of the Court. The circumstance that political results flow from a
judicial decision is not one that takes it out of that sphere of competence.
So also:
"while the Court's task is limited to functions of a legal character, its
power of action and decision is subject to no limitation deriving from the
fact that the dispute before it might also be within the competence of some
other organ. If the maintenance of international peace and security be
regarded as the major function of the United Nations as a whole (including
the Court), the Charter confers no exclusive competence upon any one
principal organ. Even the fact that the Security Council has primary
responsibility for the maintenance of [p 167] international peace and
security under Article 24 of the Charter is not sufficient to give it
exclusive competence over these matters. ... There is thus no express
authority in the Charter or in the Statute for the proposition advanced by
Judge Alvarez in the Anglo-Iranian Oil Co. case to the effect that, if a
case submitted to the Court should constitute a threat to world peace, the
Security Council may seise itself of the case and thereby put an end to the
Court's jurisdiction." (Ibid., p. 73.)
It is interesting to note that this citation extends the proposition that
the Court may consider a matter within the competence of another organ even
to the case where a matter is on the agenda of another organ (ibid., note
1).
It follows from the different nature of the two organs that there are many
factors relevant to a political decision which a political organ can and
would take notice of, but which a judicial organ cannot and would not. It is
apposite in this context to cite Kelsen's observation:
"The Security Council and the General Assembly, in so far as they, too, are
competent to settle disputes, are only quasi-judicial organs of the United
Nations. This is true even if the interpretation is accepted that
recommendations made by the Security Council for the settlement of disputes
under Articles 31, 38 or 39 are, as decisions of the Council in accordance
with Article 25, binding upon the parties. The Security Council, as pointed
out, is not a judicial organ because its members are not independent." (Hans
Kelsen, The Law of the United Nations, 1950, pp. 476-477.)
The Court's Autonomy
The United States submitted that the organs of the United Nations should act
as far as possible in co-operation with each other in common furtherance of
the principles and purposes of the United Nations. The United States cited
in this context the separate opinion of Judge Tarazi, in the Aegean Sea
case, reading as follows:
"For it is true and certain that the Court is an independent and judicial
organ ... it is no less true that it is an integral part of the United
Nations ...
That being so, the present Court, while maintaining its independence, should
not fail to take into consideration this basic truth, namely that it is an
integral part of the United Nations. The Charter, whose genesis marked a new
stage in the course of history, features [p 168] some essential differences
in comparison with the provisions of its predecessor, the Covenant of the
League of Nations. Those differences were due to the new situation which
States and peoples had to face on account of the consequences of the Second
World War and of the developments which preceded or triggered its outbreak.
There is no necessity here to consider these differences in detail. One may
content oneself with the affirmation that, by virtue of the Charter, the
Security Council bears an essential responsibility for the maintenance of
peace and security. The Court, if the circumstances so require, ought to
collaborate in the accomplishment of this fundamental mission." (Separate
opinion of Judge Tarazi, I.C.J. Reports 1976, p. 33 (emphasis added), cited
in Public Sitting of 27 March 1992, CR92/4, pp. 69-70.)
This exposition by Judge Tarazi of the role of the Court sets out with
clarity certain central principles:
(1)The Court is an independent organ of the United Nations and should
maintain its independence.
(2)The Court is a judicial organ.
(3)The Court is an integral part of the United Nations.
(4)Under the Charter, the Security Council bears essential responsibility
for the maintenance of peace and security.
(5)The Court ought to collaborate with the Security Council in the
accomplishment of this mission if circumstances so require.
It is clear from a consideration of these requisites that the Court must at
all times preserve its independence in performing the functions which the
Charter has committed to it as the United Nations' principal judicial organ.
It is clear also that in many an instance the performance of those
independent functions will lead the Court to a result in total consonance
with the conclusions of the Security Council. But it by no means follows
from these propositions that the Court when properly seised of a legal
dispute should co-operate with the Security Council to the extent of
desisting from exercising its independent judgment on matters of law
properly before it. Judge Tarazi was anxious to provide for this possibility
by the careful insertion of the stress on the Court's independence and the
proviso referring to the desirability of collaboration "if the circumstances
so require". The judge of the question whether the circumstances so require
is surely the Court in the exercise of its independent judgment.
It is to be noted, moreover, that, in the case of the Court, there is no
provision similar to Article 12 of the Charter which provides, in regard to
the General Assembly, that, while the Security Council is exercising in
respect of any dispute or situation the functions assigned to it by the
Charter, the General Assembly "shall not make any recommendation with regard
to that dispute or situation" unless the Security Council so requests. It is
part of the scheme of the Charter that the International Court is not
similarly restrained. [p 169]
The proposition is unexceptionable that where the Security Council is
addressing a situation with direct implications for the matter brought
before the Court, the Court should examine whether its actions would
conflict with the actions that the Security Council has taken or is
considering and, where the circumstances permit, should seek to reinforce
the actions of the Council.
This is undoubtedly so, but the fact of Security Council action is only one
of the circumstances the Court would take into account and is by no means
conclusive. Since the Court and the Security Council may properly exercise
their respective functions with regard to an international dispute or
situation, each must in the exercise of the undoubted authority conferred on
it exercise its independent judgment in accordance with the Charter. It
follows that their assessment of a given situation will not always be in
complete coincidence. Especially where matters of legal interpretation are
involved, the Court will naturally zealously preserve its independence of
judgment, for to do any less would not be a proper compliance with the
requirements of the Charter.
Co-ordinate Exercise of Powers
There have indeed been prior instances where the same matter has come up for
consideration before both the Security Council and the Court. Mention may be
made in this connection of the following cases where the jurisdiction of
both the Court and the Security Council was invoked in one and the same
matter: Aegean Sea Continental Shelf, Interim Protection (I.C.J . Reports
1976, p. 3); the case concerning United States Diplomatic and Consular Staff
in Tehran, Provisional Measures (I.C.J. Reports 1979, p. 7); and the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Provisional Measures (I.C .J.
Reports 1984, p. 169).
In all these cases, however, the Court and the Council were approached by
the same party, seeking before these different organs the relief appropriate
to the nature and function of each. In other words the party approaching
these organs was seeking to use them in a complementary manner.
In the present case, the Court and the Council have been approached by
opposite parties to the dispute, each claiming a form of relief consistent
with its own position. It is this situation which gives special importance
to the current case.
It is of relevance to note, in the last of the three cases cited, the
Court's observation made in response to the United States' argument that the
Court should not consider Nicaragua's request because that request for
interim measures was identical with its requests which were rejected by the
Security Council. The Court observed that the fact that a matter is before
the Security Council should not prevent it from being dealt with by the
Court and that both proceedings could be pursued pari passu (case concerning
Military [p 170] and Paramilitary Activities in and against Nicaragua,
I.C.J. Report s 1984, p. 433, para. 93.)
In the United States Diplomatic and Consular Staff in Tehran case, the Court
observed that:
"it does not seem to have occurred to any member of the Council that there
was or could be anything irregular in the simultaneous exercise of their
respective functions by the Court and the Security Council. Nor is there in
this any cause for surprise." ( I.C.J. Reports 1980, p. 21, para. 40.)
The role of the Court was made even clearer when the Court observed:
"Whereas Article 12 of the Charter expressly forbids the General Assembly to
make any recommendation with regard to a dispute or situation while the
Security Council is exercising its functions in respect of that dispute or
situation, no such restriction is placed on the functioning of the Court by
any provision of either the Charter or the Statute of the Court. The reasons
are clear. It is for the Court, the principal judicial organ of the United
Nations, to resolve any legal questions that may be in issue between parties
to the dispute; and the resolution of such legal questions by the Court may
be an important, and sometimes decisive, factor in promoting the peaceful
settlement of the dispute." (Military and Paramilitary Activities in and
against Nicaragua, I.C.J. Reports 1984, pp. 433-434.)
The Powers of the Security Council
The submission before us relating to the exercise of Security Council powers
in adopting resolution 731 (1992) calls for a brief examination of those
powers from a strictly legal point of view.
The plenitude of powers with which the Charter of the United Nations invests
the Security Council straddles a wide variety of areas of international
action.
It is charged under Article 24 with the primary responsibility for the
maintenance of international peace and security and has a mandate from all
Member States to act on their behalf in this regard. By Article 25, all
Members agree to accept and carry out its decisions.
Chapter VI entrusts it with powers and responsibilities in regard to
Settlement of Disputes, and Chapter VII gives it very special powers when it
determines the existence of any threat to the peace, breach of the peace or
act of aggression. Such determination is a matter entirely within its
discretion.
With these provisions should be read Article 103 of the Charter which [p
171] states that in the event of a conflict between the obligations of the
Members of the United Nations under the Charter and their obligations under
any international agreement, their obligations under the Charter shall
prevail. Seeing that Security Council decisions are to be accepted and
carried out by all Members States, the obligations thus created are given
priority by Article 103 over obligations under any other agreement.
All this amounts to enormous power indeed and international law as embodied
in the Charter requires all States to recognize this power and act according
to the directions issuing from it.
But does this mean that the Security Council discharges its variegated
functions free of all limitations, or is there a circumscribing boundary of
norms or principles within which its responsibilities are to be discharged?
Article 24 itself offers us an immediate signpost to such a circumscribing
boundary when it provides in Article 24 (2) that the Security Council, in
discharging its duties under Article 24 (1), "shall act in accordance with
the Purposes and Principles of the United Nations". The duty is imperative
and the limits are categorically stated. The Preamble stresses inter alia
the determination of the peoples of the United Nations to establish
conditions under which respect for the obligations arising from treaties and
other sources of international law can be maintained.
Article 1 (1) sets out as one of the Purposes of the United Nations that it
is
"to bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace".
Travaux preparatoires
That such limitations are real and important appears when one considers the
travaux preparatoires leading to the adoption of the Charter. They are here
referred to for the purpose of showing that the concerns outlined above were
indeed a factor leading to the adoption in its present form of the articles
giving the Security Council its powers.
In Committee 2 of Commission III which was dealing, at the United Nations
Conference on International Organization, San Francisco, with the draft
provisions of the Charter relating to the Security Council, on 19 May 1945,
Belgium - as if in anticipation of the very problem now presented by the
Libyan argument that the Security Council resolution 731 (1992) infringed on
essentials of State sovereignty - presented a proposed amendment to the
draft.
To quote from the Commission records:
"The Delegate of Belgium stated that if, as appeared to be the case, [p
172]the power of the Security Council to 'recommend' ('recommander')
involved the possibility that a Member of the Organization might be obliged
to abandon a right granted to it by positive international law as an
essential right of statehood, the Delegation of Belgium wished formally to
present its amendment to the Committee. The purpose of the amendment was, in
case a party to a dispute considered that a recommendation of the Security
Council infringed on its essential rights, to allow the state to request an
advisory opinion on the question by the International Court of Justice. If
the Court found such rights to be infringed or threatened, then the Security
Council would be required either to reconsider the question or to refer the
dispute to the General Assembly for a decision. It was not in any sense the
purpose of this amendment to limit the legitimate powers of the Security
Council. It would, however, be desirable to strengthen the juridical basis
of the decisions of the Security Council." (Documents of the United Nations
Conference on International Organization, San Francisco, 1945, Vol. XII, pp.
48-49.)
The Delegate of the Union of Soviet Socialist Republics opposed the
amendment stating: "There should be no question in the minds of any
Delegates that the Security Council might wish in any way to infringe the
rights of a sovereign state". Moreover:
"The Delegate of the United States emphasized the importance of the
requirement that the action of the Security Council in dealing with a
dispute involving a threat to the peace be taken 'in accordance with the
purposes and principles of the Organization'. He referred to Chapter I,
paragraph 1, as amended by the sponsoring governments, which states that one
of the purposes of the Organization is to bring about the peaceful
settlement of disputes 'with due regard for principles of justice and
international law' (Doc. 2, G/29, p. 1). He did not interpret the Proposals
as preventing any state from appealing to the International Court of Justice
at any time on any matter which might properly go before the Court. On the
whole, he did not consider the acceptance of the Belgian Amendment
advisable, particularly since he believed that the Security Council was
bound to act in accordance with the principles of justice and international
law." (Ibid., p. 49.)
The Delegate of France, while viewing with great sympathy the ideas in the
Belgian amendment, expressed doubt about its efficiency and suggested that
the sub-committee on drafting "should endeavor to give the most complete
guarantees possible that the Security Council accomplish its task according
to law and justice" (ibid., p. 50). [p 173]
The Delegate of Colombia expressed his warm support of the Belgian
amendment.
On 22 May 1945, the Delegate of the United Kingdom stated that he thought
the adoption of the Belgian amendment would be prejudicial to the success of
the Organization. He submitted that the procedures proposed by the amendment
would cause delay at a time when prompt action by the Security Council was
most desirable (ibid., p. 65).
The Delegate of South Africa supported this position, emphasizing the
importance of the act of faith the small States were making in the
acceptance of paragraph 4 (ibid., p. 66). The Delegate of the Byelorussian
Soviet Socialist Republic also opposed the Belgian amendment (ibid.).
The Delegate of Belgium then requested a more precise answer to his
previously posed question as to whether the term "recommend" in Chapter
VIII, Section A, of the draft (corresponding to Chapter VII of the United
Nations Charter) entailed obligations for States, parties to a dispute, or
whether it meant only that the Council was offering advice which might or
might not be accepted (ibid.).
The Delegate of the United States expressed agreement with the views of the
Delegate of the United Kingdom and said he had intended to make it clear
that in Section A no compulsion or enforcement was envisaged (ibid.).
The Delegate of Belgium stated that since it now was clearly understood that
a recommendation made by the Council under Section A of Chapter VIII did not
possess obligatory effect, he wished to withdraw the Belgian amendment. The
withdrawal was accepted by the Chairman (ibid.).
In another committee of Commission III (the Committee dealing with
Structures and Procedures) similar discussions were taking place at the same
time. The Delegate for Norway observed on 23 May 1945:
"The Security Council was vested with enormous powers and little restraint
was placed upon their exercise by the Dumbarton Oaks Proposals. The chapters
on Purposes and Principles offered no such rules, with the exception of the
principle of the sovereign equality of states. He felt that a basic rule of
conduct must be formulated as a restraint on the Security Council and as a
guarantee that it would not resort to a 'politique de compensation'.
Whatever sacrifices the Security Council might require of a nation should
not be of such a nature as to impair the confidence of that nation in its
future." (Documents of the United Nations Conference on International
Organization, San Francisco, 1945, Vol. XI, p. 378.)
I quote from the record:
"The Representative of the United Kingdom, in opposing the Nor[p 174]wegian
amendment, pointed out that its purpose was already served by the amended
principles in Chapter I, where it was stipulated that the Organization was
to 'bring about by peaceful means, and with due regard for principles of
justice and international law, adjustment or settlement ...' etc. In his
opinion, the Norwegian amendment was not a desirable way of stating the case
because he considered it inadvisable to limit the Council in its actions, as
was in effect proposed, when it was dealing with a lawbreaker." (Ibid.)
The Norwegian amendment was rejected on the ground that the concurrent
revisions of the introductory chapters would provide for such standards as
international law and justice (Ruth B. Russell, A History of the United
Nations Charter: The Role of the United States 1940-1945, 1958, p. 665).
These discussions are useful reminders of the sense in which the powers of
the Council were understood and adopted in the drafting of the United
Nations Charter. The powers of the Council are subject to Articles 1 and 2
and, in particular, to the guarantees they provide of conformity with
international law.
It is important to note also the genesis of Article 1 which sets out the
Purposes and Principles of the United Nations.
The Dumbarton Oaks Proposals set out these purposes as follows:
"1. To maintain international peace and security; and to that end to take
effective collective measures for the prevention and removal of threats to
the peace and the suppression of acts of aggression or other breaches of the
peace, and to bring about by peaceful means adjustment or settlement of
international disputes which may lead to a breach of the peace;
2. To develop friendly relations among nations and to take other appropriate
measures to strengthen universal peace;
3. To achieve international cooperation in the solution of international
economic, social and other humanitarian problems; and
4. To afford a center for harmonizing the actions of nations in the
achievement of these common ends." (Ibid., p. 1019.)
It will be noticed that the phrase "in conformity with principles of justice
and international law" which appears in the Charter was absent from these
proposals. The addition of this phrase to the Dumbarton Oaks draft was due
in no small measure to the fears expressed regarding the enormous powers
that would be enjoyed by the Security Council. As Ruth Russell observes in
her treatise on the history of the Charter:
"Beginning with the Chinese at Dumbarton Oaks, however, numerous complaints
were heard that the Proposals apparently pro-[p 175]vided for no standards
of justice or of international law in connection with this purpose. At San
Francisco, therefore, in accordance with the agreement made at Dumbarton
Oaks, the Big Four officially adopted the Chinese amendment to add that
peaceful settlement of disputes must be brought about 'with due regard for
principles of justice and international law'." (Ibid., p. 656.)
The history of the United Nations Charter thus corroborates the view that a
clear limitation on the plenitude of the Security Council's powers is that
those powers must be exercised in accordance with the well-established
principles of international law. It is true this limitation must be
restrictively interpreted and is confined only to the principles and objects
which appear in Chapter I of the Charter:
"Le Secretaire general des Nations Unies, dans une declaration du 10 janvier
1947, a rappele ce principe en ces termes: 'les seules restrictions sont les
principes et les buts fondamentaux qui figurent au chapitre 1er de la
Charte.'" (Cot and Pellet, La Charte des Nations Unies, 2nd ed., 1991, pp.
462-463.)
The restriction nevertheless exists and constitutes an important principle
of law in the interpretation of the United Nations Charter.
The obligation of the Court, as one of the principal organs of the United
Nations, to "co-operate in the attainment of the aims of the Organization
and strive to give effect to the decisions of the other principal organs,
and not achieve results which would render them nugatory" (I. S. Rosenne,
The Law and Practice of the International Court, p. 70) should be read in
the light of this clear limitation .
Chapters VI and VII of the Charter
In the light of these observations regarding the nature of a Security
Council resolution under Chapter VI, it becomes clear that such a resolution
does not impose a binding obligation. As Sir Gerald Fitzmaurice observed of
Security Council functions under Chapter VI:
"under this Chapter, these functions are not of an enforcement character. It
is doubtful whether, on a proper reading of these functions, they enable the
Council to do more than make recommendations with a view to the settlement
of any dispute." (Fitzmaurice, "The Foundations of the Authority of
International Law and the Problems of Enforcement", 1958, 19 Mod. L.R., p.
1, at p. 5; emphasis added.)
The travaux preparatoires of the Charter, the Charter itself and the wording
of the resolution all point to this conclusion. Consequently the [p 176]
fact that resolution 731 (1992) had been adopted by the Security Council was
not an impediment to the consideration by the Court of the application made
to it.
Moreover, whatever the resolution purported to do was required by Article 24
(2) of the Charter to be in accordance with international law. It is not for
this Court to sit in review on a given resolution of the Security Council
but it is within the competence of the Court and indeed its very function to
determine any matters properly brought before it in accordance with
international law. Consequently, the Court will determine what the law is
that is applicable to the case in hand and would not be deflected from this
course by a resolution under Chapter VI.
However, once we enter the sphere of Chapter VII, the matter takes on a
different complexion, for the determination under Article 39 of the
existence of any threat to the peace, breach of the peace or act of
aggression, is one entirely within the discretion of the Council. It would
appear that the Council and no other is the judge of the existence of the
state of affairs which brings Chapter VII into operation. That decision is
taken by the Security Council in its own judgment and in the exercise of the
full discretion given to it by Article 39. Once taken, the door is opened to
the various decisions the Council may make under that chapter.
Thus, any matter which is the subject of a valid Security Council decision
under Chapter VII does not appear, prima facie, to be one with which the
Court can properly deal.
Resolution 731 (1992)
Resolution 731 (1992) expresses the Security Council's deep concern with
international terrorism and the illegal activities directed against
international civil aviation. It reaffirms previous resolutions calling upon
all States to co-operate in preventing interference with civil air travel
and all acts of terrorism, recalls its condemnation of the destruction of
Pan Am flight 103 and the President's call on all States to assist in
apprehension and persecution of those responsible for this criminal act.
The resolution strongly deplored the fact that the Libyan Government had not
responded effectively to earlier requests made by the Governments of France,
the United Kingdom, and the United States to co-operate fully in
establishing responsibility for the terrorist acts involved in the two air
disasters involving Pan Am flight 103 and UTA flight 772. It urged the
Libyan Government immediately to provide a full and effective response to
those requests, and decided to remain seised of the matter.
There is no decision in the resolution addressed to other parties but only
[p 177] a decision "to remain seized of the matter". Nor is there any
indication on the face of the resolution, as there usually is in resolutions
under Chapter VII, indicating that the resolution has been adopted under
Chapter VII. It will be clear therefore that resolution 731 (1992) which was
the resolution before the Court at the hearing of the oral argument did not
in any way bar the consideration by the Court of the matters before it. The
observations and exhortations it contained were not of a legally binding
nature.
Resolution 748 (1992)
Resolution 748 (1992), by way of contrast, is clearly a resolution under
Chapter VII and says so on its face. That resolution contains, unlike
resolution 731 (1992), a series of decisions addressed to the Libyan
Government and to all States.
Article 25 of the Charter, under which all Members of the United Nations
agree to accept and carry out all decisions of the Security Council in
accordance with the Charter imposes a binding legal obligation on all States
of compliance with decisions of the Security Council. Article 25 is
reinforced by Article 103 so that even in the event of a conflict with
obligations under any other agreement, the obligations under Article 25
shall prevail.
Without expressing definitive views on the matter at this stage of
provisional measures, I take the view that resolution 748 (1992) must be
treated as binding on Libya as on all countries in terms of Article 25 of
the United Nations Charter and that, in terms of Article 103, the
obligations it lays down prevail over the obligations flowing from any other
international agreement. In specific terms, this means that Libya is, prima
facie, bound by the provisions of that resolution even if they should
conflict with the rights Libya claims under the Montreal Convention. In this
respect, I am in agreement with the view of the majority of the Court.
However, in my respectful view, it does not necessarily follow that the
binding nature of resolution 748 (1992) renders it inappropriate for the
Court to indicate provisional measures. I arrive at this conclusion after a
careful perusal of all the provisions of resolution 748 (1992). There still
seems to be room, while preserving full respect for resolution 748 (1992) in
all its integrity, for the Court to frame an appropriate measure proprio
motu which in no way contradicts resolution 748 (1992), Article 25 or
Article 103 of the Charter.
An analysis of resolution 748 (1992) shows that it expresses deep concern
with the failure of the Libyan Government to provide a full and effective
response to the request in resolution 731 (1992) and contains strong
condemnations of international terrorism. It determines, under Article 39 of
the Charter, the existence of a threat to international peace and security
[p 178] and decides to take certain actions under Article 41 of the Charter.
All States are required on 15 April 1992 to adopt certain measures set out
in the resolution. These measures include diplomatic sanctions and other
sanctions of various sorts relating to aircraft and weapons. They are all
measures under Article 41 which deals with measures not involving the use of
the force, and the Council has not moved beyond that Article.
The Montreal Convention
Article 14 (1) of the Montreal Convention is drafted in imperative terms,
requiring any dispute concerning the interpretation or application of the
Convention to be submitted to arbitration according to its terms. It will be
noted that the section refers not merely to interpretation but goes further
into the area of the manner in which that treaty is applied or to be
applied.
The Montreal Convention is part of a concerted international response to the
problem of terrorism, which has assumed importance in recent decades as a
major international problem. Several separate conventions represent the
international community's considered response to international terrorism and
several of them embody provisions similar to those contained in Article 14,
with eventual resort to the International Court.
It has taken around thirty years of multilateral effort to put together this
structure of international response, if one goes back to the 1963 Tokyo
Convention on Offences Committed on Board Aircraft. Most of these
conventions have been ratified by over one hundred states. The UNITAR study,
The United Nations and the Maintenance of International Peace and Security,
1987 (see p. 418), notes that, as at the time of that study, 132 nations
were parties to the Convention on Offences and Certain Acts Committed on
Board Aircraft (1969 Tokyo Convention); 127 nations were parties to the
Convention for the Suppression of Unlawful Seizure of Aircraft (1971 Hague
Convention); and 128 nations were parties to the Convention for the
Suppression of Unlawful Acts Against the Safety of Civilian Aviation (1973
Montreal Convention).
Among the Conventions that contain a clause providing for resort to this
Court where the dispute between parties cannot be settled by negotiation are
the Convention on Offences and Certain Other Acts Committed on Board
Aircraft 1963 (Tokyo Convention) - Article 24; the Convention on the
Suppression of Unlawful Seizure of Aircraft 1971 (Hague Convention) -
Article 12; the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, Including Diplomatic [p 179]
Agents 1973 (New York Convention) - Article 13; the International Convention
Against the Taking of Hostages 1979 - Article 16.
Indeed, this pattern can be traced back in international practice to the
days of the League of Nations when the 1937 Convention for the Prevention
and Punishment of Terrorism, by Article 20, referred disputes on the
interpretation or application of the Convention which could not be solved by
diplomatic means to the Permanent Court of International Justice (see
Richard B. Lillich, Transnational Terrorism: Conventions and Commentary,
1982, p. 175).
There is thus a vast body of international support for dealing with such
offences within an ordered multilateral structure of negotiation and
ultimate judicial settlement.
The Court as a judicial body administering international law cannot at this
stage of its enquiries fail to note that Security Council resolution 731
(1992) makes no mention of the Montreal Convention or of the multilateral
treaty structure built up to counter international terrorism.
Another aspect of the Montreal Convention is that it does not interfere with
the principle of customary international law aut dedere aut judicare. Each
Contracting State is however placed under a strict obligation, where it does
not extradite an alleged offender, to submit the case to the competent
authorities for prosecution (Art. 7). The principle aut dedere aut judicare
is an important facet of a State's sovereignty over its nationals and the
well-established nature of this principle in customary international law is
evident from the following description:
"The widespread use of the formula 'prosecute or extradite' either
specifically stated, explicitly stated in a duty to extradite, or implicit
in the duty to prosecute or criminalize, and the number of signatories to
these numerous conventions, attests to the existing general jus cogens
principle." (M. Cherif Bassiouni, International Extradition: United States
Law and Practice, 1987, p. 22.)
As with its failure to consider the Montreal Convention, so also resolution
731 (1992) fails to consider this well-established principle of
international law.
Conclusion
This very difficult case, arising from an incident so revolting to the
global community and so universally condemned, needs to be approached from
as many angles as possible.
Judge Lachs, in the Aegean Sea case, remarked on the complementarity of all
the fora to which States may resort: [p 180]
"The frequently unorthodox nature of the problems facing States today
requires as many tools to be used and as many avenues to be opened as
possible, in order to resolve the intricate and frequently multi-dimensional
issues involved." (I.C.J. Reports 197 8, separate opinion, Judge Lachs, p.
52.)
He stressed in this context the role of the Court as an institution serving
the peaceful resolution of disputes. In the present case, an appeal has been
addressed to this Court to use its functions in the overall United Nations
scheme, for the purpose of opening up another avenue towards settlement.
Judge Lachs put his finger upon one of the principal roles the Court may
play when he said, "In this way it may be possible to prevent the
aggravation of a dispute, its degeneration into a conflict" (ibid.).
One sees in this passage a key to the role the Court can play in this
matter. It is seised of a dispute, it possesses prima facie jurisdiction, a
situation of escalating tensions is developing and the Court's good offices
are sought by one Party with a view to preserving such rights as it claims
until their final determination by the Court.
This Court will not place itself in a position of confrontation with the
Security Council where that organ has already exercised its powers in a
manner which places obligations upon all United Nations Members. But in
areas not covered by its binding decisions under Chapter VII, the Court is
free to use its influence and authority to serve the purposes of
international peace in which it has as much an interest as any organ of the
United Nations. The furtherance and preservation of peace are not the
exclusive preserve of one organ but the common goal of all. The Court has
power to make an order proprio motu and is not limited to the terms in which
relief has been sought by the petitioner. There is no impediment which
prevents the Court from pursuing that common goal of peace by taking action
which in Judge Lach's words may make it "possible to prevent the aggravation
of a dispute, its degeneration into conflict".
A great judge once observed that the laws are not silent amidst the clash of
arms. In our age we need also to assert that the laws are not powerless to
prevent the clash of arms. The entire law of the United Nations has been
built up around the notion of peace and the prevention of conflict. The
Court, in an appropriate case, where possible conflict threatens rights that
are being litigated before it, is not powerless to issue provisional
measures conserving those rights by restraining an escalation of the dispute
and the possible resort to force. That would be entirely within its mandate
and in total conformity with the Purposes and Principles of the United
Nations and international law. Particularly when situations are tense, with
danger signals flashing all around, it seems that this Court should make a
positive response with such measures as are within its jurisdiction. If the
conservation of rights which are sub judice comes within the jurisdiction of
the Court, as I have no doubt it does, an order restraining damage to those
[p 181] rights through conflict must also lie within that province. If
international law is to grow and serve the cause of peace as it is meant to
do, the Court cannot avoid that responsibility in an appropriate case.
I would indicate provisional measures proprio motu against both parties
preventing such aggravation or extension of the dispute as might result in
the use of force by either or both Parties. Such measures do not conflict
with any decision the Security Council has made under Chapter VII, nor with
any obligation arising under Article 25, nor with the principle underlying
Article 103. The way towards a peaceful resolution of the dispute may thus
be preserved before the Parties find themselves on paths from which there
may be no return. This action is based on Article 41 of the Statute of the
Court and Articles 73, 74 and 75 of the Rules of Court.
(Signed) Christopher Gregory Weeramantry.
[p 182]
Dissenting opinion of judge Ranjeva
[Translation]
In general terms,
the reasons set out in the opinion I have appended to the Order on the
request for the indication of provisional measures made by Libya against the
United Kingdom also apply to the present Order, with the reservation that
the United States has not characterized the Applicant's rights as
"illusory".
(Signed) Raymond Ranjeva.
[p 183]
Dissenting opinion of judge Ajibola
After due and careful reflection, I have decided to write a dissenting
opinion on the issue of Libya's request for the Court to indicate
provisional measures under Article 41 of the Statute. I think it is
necessary for me to write this dissenting opinion on some of the issues that
are of primordial significance in the request before us, reflecting some of
the reasons upon which my decision is based. The subject-matter of this case
is not only unique in nature but is also of fundamental importance in the
field of international law.
Needless for me to state the facts of the case herein, other than to say
that the catastrophic Aerial Incident at Lockerbie of 21 December 1988 which
resulted in the death of 270 people is the subject-matter of this action
brought by the Libyan Arab Jamahiriya (otherwise Libya) against the United
States based on the Interpretation and Application of the 1971 Montreal
Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation. An aspect of its uniqueness is the fact that the subject-matter of
the case is contemporaneously before the Security Council.
One may go further to state that that alone does not make it unique ipso
facto because in recent times the issues presented by at least three cases
before the Court have at the same time been deliberated upon by the Security
Council (cf., Aegean Sea Continental Shelf (Greece v. Turkey), I.C.J.
Reports 1976, p. 3; United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), I.C.J. Reports 1980, p. 3; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), I.C.J. Reports 1984, p. 169). In these three cases the Court
and Security Council exercised mutual or in fact "symbiotic" powers and
functions. In effect these two main organs of the United Nations as
established under Article 7 of the Charter even though exercising their
respective powers and functions independently and pari passu did so in
parallelism. In all three cases, the Court, while supportive of the Security
Council, unambiguously confirmed its authority to adjudicate issues within
its jurisdiction even where the Security Council is seized of the same
matter. For example, while indicating provisional measures in the United
States Diplomatic and Consular Staff in Tehran case, the Court "endorsed"
resolution 457 of 1979, which called for the immediate release of the
hostages and further observed: [p 184]
"Whereas Article 12 of the Charter expressly forbids the General Assembly to
make any recommendation with regard to a dispute or situation while the
Security Council is exercising its functions in respect of that dispute or
situation, no such restriction is placed on the functioning of the Court by
any provision of either the Charter or the Statute of the Court. The reasons
are clear. It is for the Court, the principal judicial organ of the United
Nations, to resolve any legal questions that may be in issue between parties
to a dispute; and the resolution of such legal questions by the Court may be
an important, and sometimes decisive, factor in promoting the peaceful
settlement of the dispute." (I.C.J. Reports 1980, p. 22, para. 40.)
Similarly in the Nicaragua case, the Court made the following significant
pronouncement on its jurisdiction:
"The United States is thus arguing that the matter was essentially one for
the Security Council since it concerned a complaint by Nicaragua involving
the use of force. However, having regard to the United States Diplomatic and
Consular Staff in Tehran case, the Court is of the view that the fact that a
matter is before the Security Council should not prevent it being dealt with
by the Court and that both proceedings could be pursued pari passu." (I.C.J.
Reports 1984, p. 433, para 93.)
Admittedly, the Security Council is a political organ, while Article 92 of
the United Nations Charter describes the Court as "the principal judicial
organ of the United Nations". However, in this case, one is inclined to
admit an overlap of function, even though a cursory evaluation may suggest a
contrary view. For example, the Montreal Convention on which Libya's
Application is based squarely presents the Court with issues of "rights" and
"disputes" under international law, involving in particular, extradition,
while the Security Council is dealing with the issue of the "surrender" of
two suspects and the problem of international terrorism as it affects
international peace and the security of nations - i.e., matters of a
political nature.
There is also the issue of different connotations of the word
"co-operation". While the Security Council wants Libya to co-operate with
the United States by surrendering to her the two suspects in Libya, the
Application of Libya seeks the co-operation of the United States in
prosecuting the two suspects in Libya under the Libyan Criminal Code and in
accordance with Article 11 (1) of the 1971 Montreal Convention.
Assuming for the moment that there were no resolutions or any action
whatsoever on this matter in the Security Council, the question is, what
would have been the attitude and approach of the Court to the interim
measures sought by Libya? In my view, to indicate interim measures in this
case, the Court must answer the following preliminary questions in the
affirmative: [ p 185]
1. Does the Court have prima facie jurisdiction to entertain this
Application?
2. Are there legal disputes between the Applicant and the Respondents in
accordance with the provisions of the 1971 Montreal Convention? If so, what
are these disputes?
3. Are the "rights" being claimed by the Applicant legal rights sustainable
under international law? If so, what are these legal rights?
4. Is this matter urgent to warrant immediate attention of the Court and
upon which provisional measures should be pronounced?
5. Has the Court jurisdiction to entertain this matter presently, or was it
prematurely brought before the Court having regard to the provisions of
Article 14(1) of the 1971 Montreal Convention upon which the Application is
based?
6. Would failure to indicate interim measures result in irreparable harm to
the Applicant?
1. On the first question, I have no doubt that the Court has a prima facie
jurisdiction to entertain Libya's request for interim measures. It is
well-settled jurisprudence of the Court to concede the establishment of
prima facie jurisdiction once the Applicant can show that she has an
arguable case. This view was confirmed in the Nuclear Tests case (Australia
v. France) when the Court observed:
"Whereas on a request for provisional measures the Court need not, before
indicating them, finally satisfy itself that it has jurisdiction on the
merits of the case, and yet ought not to indicate such measures unless the
provisions invoked by the Applicant appear, prima facie, to afford a basis
on which the jurisdiction of the Court might be founded." (I.C.J. Reports
1973, p. 101, para. 13.)
The Parties do not deny that the 1971 Montreal Convention is a Convention in
force which they have entered into and ratified. The issue is one of pacta
sunt servanda as provided for in Article 26 of the Vienna Convention on the
Law of Treaties which came into force in 1980.
2. The second question deals with the issue of legal disputes. From the
totality of the oral arguments presented by the Parties, I am convinced that
there is a legal dispute concerning the Interpretation and Application of
the 1971 Montreal Convention.
To my mind the legal disputes may be summarized as three:
(a) The United States is demanding the surrender of the two suspects
involved in the Lockerbie incident and Libya refuses to comply with this
demand. The Applicant argues that under Articles 5 (2), 5 (3), 7 and 8 of
the 1971 Montreal Convention, she has the option either to extradite or
prosecute: aut dedere aut judicare (or aut prosequi) and [p 186] in the
circumstances, she has decided to prosecute the suspects on her own soil
because her internal criminal law does not permit the "extradition" of
Libyan citizens.
(b) The second legal dispute is whether Article 11 (1) of the 1971
Montreal Convention requires the United States to co-operate with Libya's
domestic prosecution of the two suspects. Article 11 (1) of the 1971
Montreal Convention provides:
"Contracting States shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of the
offences. The law of the State requested shall apply in all cases."
(Emphasis added.)
(c) The third dispute may be found in paragraph 5 of Libya's request for the
indication of provisional measures, which urges the Court to order the
Respondent to "refrain from taking any step that might aggravate or extend
the dispute as would surely happen if sanctions are imposed against Libya or
force employed". During the oral proceedings, Counsel for the Applicant
referred to identical statements of Government authorities of both the
Respondent and the United Kingdom to the effect that "we have neither ruled
any option in or any option out" and which to some extent have been disputed
or explained away by the counsel for the Respondent.
3. Next is the question of whether the Applicant has the rights under
international law claimed in his Application. To answer this question, the
Applicant referred to many of the provisions of the 1971 Montreal
Convention, especially Articles 5 (2), 5 (3), 7, 8 and 11 (1). Many of these
Articles deal with the issue of aut dedere aut judicare. In effect, the
Convention recognizes the fact that the internal law of some States
prohibits the extradition of its citizens. The hydra-headed problem or
conflict of jurisdiction to prosecute which must clearly be borne in mind in
this case, is that the two Parties have the right/obligation to prosecute
offences listed in the Convention in their respective States. Article 5 (1)
enumerates such options thus:
"Each Contracting State shall take such measures as may be necessary to
establish its jurisdiction over the offences in the following cases:
(a) when the offence is committed in the territory of that State;
(b) when the offence is committed against or on board an aircraft registered
in that State;[p 187]
(c) when the aircraft on board which the offence is committed lands in its
territory with the alleged offender still on board;
(d) when the offence is committed against or on board an aircraft leased
without crew to a lessee who has his principal place of business or, if the
lessee has no such place of business, his permanent residence, in that
State."
General international law recognizes the same options. Hence, the United
States of America could establish jurisdiction as the State where the
aircraft was registered. However, Libya has the suspects within her
jurisdiction and is equally entitled to prosecute the suspects. I am of the
view that based on the 1971 Montreal Convention, Libya has a legal right to
protect. It is a right recognized in international law and even considered
by some jurists as jus cogens. I share the view of some of my colleagues,
especially Judge Weeramantry, that Libya is entitled to prosecute the two
accused Libyans if she wants. Even if other rights under Articles 5 (2), 5
(3), 7 and 8 are debatable and arguable as to whether they are rights or
obligations, the legal right under Article 11 (1) is an indisputable right
under the 1971 Montreal Convention.
4. Next is the issue of urgency. Equally I have no doubt about the urgency
of this matter. If I had any doubt in my mind before, the developments in
the recent days are all clear indications that there is a need for the Court
to take immediate action and to give Libya's request the priority that it
deserves as indicated in Article 74 (1) of the Rules of Court.
5. The next question, the timeliness of the Application, is admittedly not
as easy as the others that I have dealt with above. Opinions are strongly
divided on the issue of the interpretation of Article 14 (1) of the 1971
Montreal Convention. The Court listened to cogent arguments for and against
the applicability or non-applicability of this Article, for the time being,
from the Applicant and the Respondent. Before I go further, let me quote the
Article:
"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."
The Respondent forcefully argues that the Applicant failed to exhaust all
the stages of negotiation and arbitration before making her Applica-[p
188]tion to the Court. It was pointed out, and is clearly indicated in the
Article, that the requirements of negotiation and arbitration are mandatory
condition precedents that must be complied with before recourse to the Court
is available. The Respondent further argued that the Applicant's letter of
18 January 1992 on the issue of negotiation and arbitration was merely six
weeks old when the Application was made to the Court on 3 March 1992, and
therefore the Application is premature.
The Applicant answers that waiting for the six months prescribed in Article
14 (1) to run its course would be pointless because the Respondent
unequivocally refused Libya's 18 January 1992 request for negotiation and
arbitration. Reference was made to the statement of the United States of
America Representative during the debate on the matter at the Security
Council when he said "the issue at hand is not some difference of opinion or
approach that can be mediated or negotiated".
From this pronouncement by the Respondent it seems to me, and quite
reasonably too, that even if the Applicant had waited until after six months
from 18 January, or even longer, her request would have been met by the same
refusal. This, to my mind, is a case of anticipatory breach of the
provisions of Article 14 (1) on the part of the Respondent and Libya was not
obliged to delay its Application until the expiry of six months after 18
January 1992. This view is reflected in some of the past decisions of the
Court. A good example is the South West Africa case (Ethiopia v. South
Africa; Liberia v. South Africa) where the Court observed:
"It is immaterial and unnecessary to enquire what the different and opposing
views were which brought about the deadlock in the past negotiations in the
United Nations, since the present phase calls for determination of only the
question of jurisdiction. The fact that a deadlock was reached in the
collective negotiations in the past and the further fact that both the
written pleadings and oral arguments of the Parties in the present
proceedings have clearly confirmed the continuance of this deadlock, compel
a conclusion that no reasonable probability exists that further negotiations
would lead to a settlement." (I.C.J. Reports 1962, p. 345.)
The Court refused to adopt a purely technical attitude to this matter in the
same case when it noted that:
"it is not so much the form of negotiation that matters as the attitude and
views of the Parties on the substantive issues of the question involved. So
long as both sides remain adamant ..." (Ibid., p. 346.)
There is also the issue of whether the word "within" as used in Article 14
(1) means after or inside of six months. The word "dans" in the [p 189]
corresponding French text suggests that demand and refusal within six months
triggers the right of recourse to the Court. Moreover, "within" in the
Concise Oxford Dictionary means "not beyond", or "inside" or "before
expiration of" or "in a time no longer than" or "during". If the Convention
meant to stipulate after it would have explicitly said so.
Given all the points I have dilated upon above, it is my humble opinion that
the Application was not prematurely presented to the Court, and the Court
has jurisdiction to entertain the same.
6. There remains the issue of irreparable harm. Here again arguments have
been advanced on both sides. The point of the United States was that a party
should not take action pendente lite that would frustrate the Court's later
judgment on the merits. Provisional measures are therefore unnecessary, the
argument runs, because the Parties are already under an obligation to avoid
irreparable prejudice to the potential judgment of the Court, irreparable
harms to rights claimed, and irreparable harms to persons and property. To
buttress this point torrents of authority were cited from the past Judgments
of the Court.
Again, one must pause to note that the test here is not one of "irreparable
prejudice" or "irreparable harm" but the possibility or the risk of such
irreparable harm or prejudice. This point has been made in several cases
before the Court. The Court in indicating provisional measures in the
Nuclear Tests case observed thus:
"29. Whereas for the purpose of the present proceedings it suffices to
observe that the information submitted to the Court, including Reports of
the United Nations Scientific Committee on the Effects of Atomic Radiation
between 1958 and 1972, does not exclude the possibility that damage to
Australia might be shown to be caused by the deposit on Australian territory
of radio-active fall-out resulting from such tests and to be irreparable;
30. Whereas in the light of the foregoing considerations the Court is
satisfied that it should indicate interim measures of protection in order to
preserve the right claimed by Australia in the present litigation in respect
of the deposit of radio-active fall-out on her territory." (I.C.J. Reports
1973, p. 105.) (Emphasis added.)
Similar pronouncements can be found in the Tehran Hostages case and Passage
through the Great Belt case.
Two questions are pertinent to the issue under discussion. First, is there a
likelihood, or to use the appropriate words "possibility" or "risk" of harm
to the Applicant if she is not allowed to prosecute the two suspects [p 190]
on her own soil? Second, is there a likelihood that the Respondent will use
force or coercion if provisional measures are not indicated? From the
evidence adduced at the hearings, I am very much inclined to answer these
questions in the affirmative, especially when one considers the fact that
what is in issue is the possibility or risk of such irreparable harm or
prejudice.
Now, having resolved all of these questions in favour of the Applicant, in
relation to the relevant provisions for indication of provisional measures
(i.e., Article 41 of the Statute of the Court) I should proceed to state
that the Court should indicate provisional measures in favour of the
Applicant only when it "considers that the circumstances" of this case "so
require". Similar reference can also be made to relevant parts of Articles
73, 74 and 75 of the Rules of Court.
In my view the request for interim measures must be seen against the
background of concurrent actions of the Security Council, and in particular
its adoption of resolutions 731 (1992) and 748 (1992). There is therefore
need to examine the effect, if any, of resolution 731 (1992) on this case
and most importantly to indicate the effect of the recent resolution 748
(1992), passed during the currency of our deliberation on this case.
Before embarking on the bumpy journey of examining the effects of these
resolutions in international law, let me pause to examine one aspect of this
case that troubles my own sense of justice. Perhaps it is better to deal
with this matter fully when the case will be considered on its merits.
However, it concerns the two resolutions of the Security Council and their
effect on the provisional measures now under consideration.
A point which is uncontested and accepted by both Parties is the
desirability and in fact the need, that the two suspects allegedly involved
in this matter be thoroughly investigated and tried. The Applicant believed
so, and said so. The Respondent is also eager to try them. The disagreement
is only on where they should be tried. To my mind the investigation cannot
be completed without the co-operation of both Parties. On completion of
investigation, and if a prima facie case is established against the
suspects, they will be tried as accused persons before a criminal court or
tribunal. Judgment comes after trial and then sentence, if found guilty.
I have stated all these elementary and trite principles of criminal justice
to stress the point, that all along, the issue of investigation by the
Respondent was being apparently treated in some of the arguments like final
judgment. It is obvious that the allegation of terrorism, a very serious and
heinous offence, against the two Libyans cannot be sustained unless and
until they are tried and found guilty. A fortiori the allegation that the
State [p 191] of Libya is involved in terrorism cannot hold legally until
such a time as judgment is given against the two Libyans and it is proved
that they were acting for and on behalf of the State of Libya.
A statement of the United States of America in S/23308 on
27 November 1991, regarding the bombing of Pan Am flight 103 reads:
"After the indictments were handed down on 14 November we conveyed them to
the Libyan regime. We have also consulted closely with the Governments of
France and the United Kingdom and in concert with those two Governments we
have the following two declarations to present publicly today.
Joint declaration of the United States and United Kingdom
The British and American Governments today declare that the Government of
Libya must:
- surrender for trial all those charged with the crime; and accept
responsibility for the actions of Libyan officials;
- disclose all it knows of this crime, including the names of all those
responsible, and allow full access to all witnesses, documents and other
material evidence, including all the remaining timers;
- pay appropriate compensation.
We expect Libya to comply promptly and in full." (Emphasis added.)
It will be noted that payment of compensation was demanded in the above
statement, i.e., "pay appropriate compensation". What worries me is how the
State of Libya could be urged to pay compensation when the "suspects" or
even to put it higher than that the "accused persons" have not been found
guilty by any competent court or tribunal and have not been proved to have
acted in complicity with Libya. The presumption of innocence until guilt is
established is still an integral part of the due administration of criminal
justice the world over.
The significance of this point is that the requests of the United States,
referred to above, formed the basis of the requests contained in resolution
731 (1992), especially the preambular paragraph which states:
"Deeply concerned over the results of investigations, which implicate
officials of the Libyan Government and which are contained in Security
Council documents that include the requests addressed to the Libyan
authorities by France, the United Kingdom of Great Britain and Northern
Ireland and the United States of America in connection with the legal
procedures related to the attacks carried [p 192] out against Pan American
flight 103 and Union de transports aeriens flight 772 ..."
as well as paragraph 3 of the resolution which
"Urges the Libyan Government immediately to provide a full and effective
response to those requests so as to contribute to the elimination of
international terrorism".
What then is the effect of resolution 731 on the Court's authority to
indicate interim measures? It has been argued that resolution 731 is merely
recommendatory and as such it is not a decision of the Security Council. I
think I share the view on a careful study of the content of the resolution
that the request to surrender the two Libyans cannot be said to be
mandatory. Again, the action of the Security Council with regard to this
resolution could be placed under Article 36(1) of the Charter which states
that:
"The Security Council may at any stage of a dispute of the nature referred
to in Article 33 or of a situation of like nature, recommend appropriate
procedures or methods of adjustment." (Emphasis added.)
Undoubtedly all these provisions are within the Chapter VI of the Charter
which deals with pacific settlement of disputes. Since the issue involves
negotiation, enquiry, mediation, conciliation, arbitration or judicial
settlement as enumerated in Article 33, it was possible for the Security
Council to avail itself of the ultimate invocation and application of
Article 36(3) by referring this matter to the Court. However, the Security
Council did not exercise that option. After careful consideration of the
content and possible effect of resolution 731, it is my humble opinion and
conclusion that it in no way impedes the Court's authority to indicate the
interim measures requested by Libya.
Resolution 748 which was adopted while the Court was considering Libya's
request for interim measures, is undoubtedly within the power and function
of the Security Council since it falls under Chapter VII of the Charter,
particularly Article 41.
What then is the legal effect of resolution 748 on the Court's authority to
indicate interim measures? There is no doubt that there is an overlap
between the powers and functions of the Court and Security Council, which I
mentioned earlier in the Opinion. The resolution is a decision of the
Security Council and therefore its effect and validity is even stronger than
that of resolution 731 in light of the provisions of Article 25 and Article
103 of the Charter. Article 25 enjoins members to "respect and carry[p 193]
out the decisions of the Security Council" and Article 103 provides that in
any case of conflict of obligations between the Charter and other
international agreement, the obligation under the Charter is supreme and
shall prevail. Arguably, certain intrinsic defects may invalidate the two
resolutions mentioned herein. For example, there is the issue of nemo iudex
in sua causa, as well as the possible effect of Article 27(3) of the Charter
on the resolutions. Nevertheless, I do not pronounce on their validity here,
nor need I do so in order to reach my decision.
However, in view of the provisions of resolution 748 (1992), it is my
opinion that the Court should decline to indicate the provisional measures
requested by Libya. However, it is also my belief that the Court should
indicate provisional measures proprio motu under Article 75 of the Rules of
Court against both Parties to ensure non-use of force or aggravation or
extension of the dispute pending the Court's judgment on the merits.
The Court has the legal and inherent power to order provisional measures
proprio motu against both Parties independent of any request made by either
Party. Such an independent indication of provisional measures is not alien
to the jurisprudence of this Court and its predecessor. In the case
concerning the Legal Status of the South-Eastern Territory of Greenland;
(P.C.I.J., Series A/B, No. 48, pp. 287-288) the Permanent Court of
International Justice pronounced:
"Whereas, on the other hand, the Court must consider whether or not there is
ground for proceeding, proprio motu, to indicate interim measures of
protection in connection with the two applications of July 18th, 1932,
independently of the Norwegian request to that effect ..." (Emphasis added.)
Again in the case of the Electricity Company of Sofia and Bulgaria (Interim
Measures Protection) (P.C.I.J., Series A/B, No. 79, p. 199) the Permanent
Court of International Justice ordered interim measures thus:
"Whereas according to Article 41, paragraph 1, of the Statute,
'The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken
to reserve the respective rights of either party';
And whereas, according to Article 61, paragraph 4, of the Rules,
'The Court may indicate interim measures of protection other than those
proposed in the request.'
[p 194]
Whereas the above quoted provision of the Statute applies the principle
universally accepted by international tribunals and likewise laid down in
many conventions to which Bulgaria has been a party - to the effect that the
parties to a case must abstain from any measure capable of exercising a
prejudicial effect in regard to the execution of the decision to be given
and, in general, not allow any step of any kind to be taken which might
aggravate or extend the dispute." (Emphasis added.)
The Court in the Anglo-Iranian Oil Co. case (I.C.J. Reports 1951, p. 93)
reached a similar conclusion on the power of the Court to indicate
provisional measures proprio motu when it declared:
"Whereas the object of interim measures of protection provided for in the
Statute is to preserve the respective rights of the Parties pending the
decision of the Court, and whereas from the general terms of Article 41 of
the Statute and from the power recognized by Article 61, paragraph 6, of the
Rules of Court, to indicate interim measures of protection proprio motu, it
follows that the Court must be concerned to preserve by such measures the
rights which may be subsequently adjudged by the Court to belong either to
the Applicant or to the Respondent." (Emphasis added.)
Even quite recently and with absolute clarity the Court boldly emphasized
its power to indicate provisional measures in the case of Frontier Dispute
(Burkina Faso/Republic of Mali) when it stated:
"Considering that, independently of the requests submitted by the Parties
for the indication of provisional measures, the Court or, accordingly, the
chamber possesses by virtue of Article 41 of the Statute the power to
indicate provisional measures with a view to preventing the aggravation or
extension of the dispute whenever it considers that circumstances so
require." (I.C.J. Reports 1986, p. 9, para. 18.) (Emphasis added.)
The learned author Sir Gerald Fitzmaurice had this to say on the issue of
interim measures on page 542 in The Law and Procedure of the International
Court of Justice, Vol. II, 1986,
"c. As has been shown above, the power of the Court to indicate interim
measures falls into the same category as its competence de la competence.
Both are an exercise of incidental jurisdiction, necessary in the case of
the competence de la competence to enable the Court to function at all, and,
in the case of the power to indicate interim measures, to prevent its
decisions from being stultified. Now in the case of the Court, its power to
determine its own jurisdiction is specifi-[p 195]cally provided for by
Article 36, paragraph 6 of the Statute. Yet it is established law that this
power is part of the inherent powers of all international tribunals,
irrespective of whether it has been expressly conferred on them or not - a
view specifically endorsed by the Court when it said in the Nottebohm case
(Jurisdiction) ..."
Such indication of provisional measures will not run against the decision of
the Security Council as contained in resolution 748 (1992) since the
resolution does not condone the use of any force. Resolution 748 (1992) is
quite elaborate and states in clear and unambiguous terms the decision of
the Security Council which should be carefully examined here in order to
explain my conviction that the Court's indication of interim measures
proprio motu to enjoin the use of force pending judgment on the merits would
not interfere with the functioning of the Security Council.
The first point is that resolution 748 (1992) reaffirms all that is
contained in resolution 731 (1992) and as already explained, resolution 731
(1992) falls under Chapter VI of the Charter and in particular Article 36
(1). In effect, all resolution 731 (1992) requested from Libya is that she
must comply with the demands of the United States and the United Kingdom as
contained in their respective and joint statements on this issue. There is
nothing in resolution 731 (1992) to indicate approval, explicit or implicit,
by the Security Council of the use of force to ensure Libya's compliance.
The preambular paragraphs, while noting the reports of the
Secretary-General, restated the Security Council's position on terrorism and
how and why the same must be effectively dealt with and reaffirmed the need
for all States to refrain from organizing, asserting or participating in
acts of terrorism. Again, it should be noted here too that there is nothing
suggestive of support for the use of force by the Security Council.
As regards the operative part of the resolution, the Security Council made
it abundantly clear that it was acting under Chapter VII of the Charter.
This is an important point to note, because this Chapter deals with "Action
with respect to threats to the peace, breaches of the peace, and acts of
aggression". Here again, one must ask which Article the Security Council
invoked when it adopted resolution 748 (1992) having regard to the content
of the decisions contained therein. A thorough perusal of the resolution
clearly indicates that the Council was acting, as I have said earlier, under
Article 41 of the Charter which deals with the issue of economic sanctions.
Article 41 of the Charter directs that:
"The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, [p 196] and
it may call upon the Members of the United Nations to apply such measures.
These may include complete or partial interruption of economic relations and
of rail, sea, air, postal, telegraphic, radio, and other means of
communication and the severance of diplomatic relations." (Emphasis added.)
The emphasized words, when read in conjunction with paragraphs 4 (a), (b), 5
(a), (b), (c), 6 (a), (b), (c) and 7 of resolution 748 (1992), all give the
unequivocal indication that the resolution is aimed at imposing economic and
commercial sanctions, along with diplomatic restrictions against Libya and
explicitly prohibits sanctions "involving the use of armed force". I have
elaborated on the content of Article 41 in order to show that although
resolution 748 (1992) was adopted by the Security Council under Chapter VII,
Article 41 of this Chapter clearly prohibits the use of force.
Libya also confirmed this in its latest observation dated 7 April 1992, on
the effect of resolution 748 (1992) when she noted that:
"the sanction that the Security Council has adopted against Libya, should it
fail to comply with resolution 748 (1992), directly impair Libya's economic,
commercial and diplomatic rights".
The conclusion that I have therefore arrived at is that the Court would not
impair or impede the full force and effect of resolution 748 (1992) if it
were to indicate measures proprio motu or even suo motu to enjoin both
Parties to this dispute from taking any action that may involve the use of
force or taking any step which might aggravate or extend the dispute pending
the Court's judgment on the merits.
The next point which is equally germane to the issue of resolution 748
(1992) is the question of its validity. At the moment this assertion is
neither here nor there and consequently one relies on the decision of the
Security Council with regard to resolution 748 (1992) based on its prima
facie validity. This issue will be resolved one way or the other when the
matter comes up for argument on its merits. I have personally echoed my
doubts earlier on this point but one should at the moment let sleeping dogs
lie.
Assuming, arguendo, that resolution 748 (1992) is valid on its face, the
United States in her observation of 7 April 1992 submits:
"Irrespective of the existence of the novel right Libya claims under the
Montreal Convention - a right contrary to the text, structure, purpose and
history of the Convention - Libya now has a Charter-based duty to accept and
carry out the decisions of the Security [p 197] Council in resolution 748
(1992) and other States have a Charter-based duty to seek Libya's
compliance. The predicate for Libya's request for provisional measures,
therefore, is entirely lacking."
As already indicated the United States is entitled to this view having
regard to other provisions of the Charter, so long as it does not resort to
the use of force to ensure compliance with the resolution.
The Parties have based much of their arguments on the issue of legal rights.
Without doubt, I think that the issue of legal rights is relevant and
important to the Application of Libya and that the Applicant must clearly
establish these rights to succeed on the merits. That is why Article 41
talks of the preservation of the respective rights of either party. However,
Article 75 of the Rules of Court does not refer to the issue of rights but
merely grants the Court the power to indicate provisional measures proprio
motu against any or all parties if after due examination the circumstances
of the case so require. In my view the Court should exercise the power
conferred by Article 75 in this case.
Each case must be decided on its own merits. Situations are always changing.
The world is in a state of flux economically and politically. International
law has been enriched by its dynamic development from this Court. Even if in
the past the measures suggested by me for indication have always been
incidental, there is every reason why they should be indicated in this case
given the urgent, serious and unique circumstances that it presents. The
world is constantly faced with new situations from day to day, and it is
imperative that the Court must always rise to the occasion and meet the new
demands and challenges of our time as they surface. However, care must be
taken that pronouncements, indications, orders and judgments of the Court be
given in accordance with international law and one need not emphasize this.
(Art. 38 (1) of the Statute of the Court.) In this case, the Court has the
power to pronounce on the provisional measures I have suggested, in
accordance with the provisions of Article 75 of the Rules of Court. In
addition, it is invariably the inherent power of the Court to grant such
provisional measures under customary international law.
In conclusion, I believe that the Court should deny Libya's request for
interim measures, but should independently apply the provisions of Article
75 of the Rules of Court to prevent further escalation, aggravation or
extension of the dispute pending judgment on the merits.
Again, I ask myself what is justice in a case of this nature, with regard to
[p 198] the request for indication of provisional measures, which is before
the Court. To me, the fundamental focus and obligation as judges of the
Court must be to do justice in accordance with the spirit of Article 1 of
the Charter: to maintain international peace and security; to take effective
measures to prevent and remove all threats to peace; to suppress all threats
of aggression or any form of breaches of peace in any part of the world
within the spirit of the Charter and in accordance with international law.
To me, justice requires prompt action to prevent deterioration of peaceful
co-existence among nations of the world. No one goes to sleep when the house
is burning.
Finally, justice of this case requires that we should act in consonance and
within the spirit and content of Article 2 (3) of the Charter, which states:
"All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered."
I would therefore indicate provisional measures in this case based on
Article 75 of the Rules of Court against both Parties pendente lite to
prevent the escalation, aggravation or extension of the dispute and in
particular the use of force by either or both Parties.
(Signed) Bola Ajibola
[p 199]
Dissenting opinion of judge El-Kosheri
1. To any human being, what happened over Lockerbie was a horrible event
which requires that those responsible for it be punished and justice duly
rendered in conformity with the applicable legal rules. With that end in
view, the facts should be clearly established in their true chronological
sequence in order to demonstrate the nature and scope of the case pending
before the International Court of Justice, as well as to provide a clear
distinction between the legal reality and the political aspects which are
entrusted under the United Nations Charter to another principal organ of the
international organization: the Security Council.
2. According to the documents filed in the present case, the first relevant
factual element occurred on 14 November 1991, when a Grand Jury of the
United States District Court for the District of Columbia handed down an
indictment charging two Libyan nationals with causing a destructive device
to be placed on board Pan Am flight 103, which device exploded and led to
the crash at Lockerbie, Scotland. On the same day, the Lord Advocate of
Scotland announced the issue of warrants for the arrest of the same two
Libyan individuals, charging them with involvement in the destruction of Pan
Am flight 103. Four days later, on 18 November 1991, the Libyan authorities
issued a statement indicating that the indictment documents had been
received and that, in accordance with the applicable rules, a Libyan Supreme
Court Justice had already been assigned to investigate the charges; the
statement also, inter alia, asserted the Libyan judiciary's readiness to
co-operate with all legal authorities concerned in the United Kingdom and
the United States.
3. On 27 November 1991, the Governments of the United States and the United
Kingdom issued a joint declaration to the Government of Libya demanding,
inter alia, the surrender for trial of the two individuals charged with the
Lockerbie incident. On the following day, 28 November 1991, the Libyan
Government issued a communique in which it was stated that the application
made by the United States and the United Kingdom would be investigated by
the competent Libyan authorities, who would deal with it seriously and in a
manner that would respect the principles of international legality,
including, on the one hand, Libya's sovereign rights and, on the other, the
need to ensure justice both for the accused and for the victims. In the
meantime, the Libyan investigating judge took steps to request the
assistance of the authorities in the United Kingdom and the United States,
offering to travel to these countries in order to review the evidence and to
co-operate with his American and British counterparts.[p 200]
4. Since these offers were either explicitly rejected in public
(parliamentary debates) or ignored, remaining without response, two
identical letters were addressed on 17 January 1992 to the United States
Secretary of State and the British Secretary of State for Foreign Affairs.
In these letters, the Secretary of the People's Committee for Foreign
Liaison and International Co-operation drew the attention of his
counterparts to the fact that Libya, the United States and the United
Kingdom were all parties to the 1971 Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, commonly known as the
Montreal Convention. He then indicated that as soon as the charges had been
made against the two accused, Libya had exercised its jurisdiction over them
in accordance with Libyan national law and Article 5 (2) of the Montreal
Convention. This was done by adopting certain measures to ascertain the
presence in Libya of the accused, by instituting a preliminary inquiry into
the matter and by notifying the States mentioned in Article 5 (1) of the
Convention that the suspects were in custody. The letters went on to note
that Article 5 (3) of the Montreal Convention did not exclude any criminal
jurisdiction exercised in accordance with national law and that, the alleged
offenders being present in Libyan territory, Libya had, in accordance with
Article 5 (2) of the Convention, taken the necessary measures to establish
its own jurisdiction over the offenders characterized in Article 1 (1),
subparagraphs (a), (b), and (c) and Article 1 (2). Recalling that Article 7
provided that the Contracting Party in whose territory the alleged offender
is found shall, if it does not extradite him, submit the case to its own
competent authorities for the purpose of prosecution, the two letters
indicated that Libya had already submitted the case to its judicial
authorities and that an examining magistrate had been appointed. The letters
then observed that the judicial authorities of the United States and the
United Kingdom had been requested to co-operate in the matter, but that
there had been no official response to these requests. Instead, the United
Kingdom and the United States had threatened Libya while not ruling out the
use of armed force.
5. In these circumstances, and bearing in mind the provisions of Article 33
(1) of the United Nations Charter, the Libyan letters of 17 January 1992
called upon the United States and the United Kingdom to agree to an
arbitration of the dispute in accordance with Article 14 (1) of the Montreal
Convention and to meet with the representative of Libya as soon as possible
in order to elaborate the details of such an arbitration (the English
translation of the original Arabic text of these letters appears in Security
Council document S/23441 as an Annex to the letter of 18 January 1992 from
the Permanent Representative of Libya to the President of the Security
Council requesting circulation thereof in connection with Libya's calls for
the implementation of Article 14 of the Montreal Convention).
6. The above factual survey of the correspondence exchanged during [p 201]
the period between 14 November 1991 and 18 January 1992 demonstrates beyond
any doubt that prior to the adoption of Security Council resolution 731
(1992), Libya had not only invoked the need to arbitrate a dispute relating
to the application and interpretation of the Montreal Convention in
compliance with Article 14 (1) thereof but also informed the Security
Council about the existence of that dispute in compliance with Article 33
(1) of the Charter (in Chapter VI) which requires that:
"The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall first of all,
seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice."
7. The dispute referred to in the two letters of 17 January 1992 is
precisely the one now submitted to the Court, which, by virtue of Article 92
of the United Nations Charter, is "the principal judicial organ of the
United Nations" and thus exercises a function fundamentally different in
nature and operating methods from that conferred upon the Security Council
by Article 24 of the Charter. In essence, the Security Council is charged
with "primary responsibility for the maintenance of international peace and
security" (Art. 24, para. 1) and has in this respect to "act in accordance
with the purposes and principles of the United Nations" (Art. 24, para. 2,
which thus necessarily refers to Chapter I entitled: "Purposes and
Principles", Arts. 1 and 2).
8. Accordingly, a basic distinction has to be drawn between the claimed
"dispute" of a legal character which Libya submitted to the Court in the
present proceedings, introduced on 3 March 1992, and the political issues
pertaining to State-sponsored acts of terrorism commonly known as "State
terrorism" (for the exact definition of "terrorisme d'Etat", Judge Gilbert
Guillaume justly indicated that this usually means: "la violence organisee
par l'Etat lui-même, selon ses propres normes de droit, en vue de faire
regner la terreur sur son territoire" (RCADI, t. 215 (1989-III), p. 297),
expressing his preference for distinguishing that type of unlawful activity
from the "soutien apporte par les Etats aux activites terroristes" (ibid.,
p. 299)). The undertaking to eliminate all forms of terrorism, whether by
private persons and groups or in the form of State terrorism and
State-sponsored terrorism, falls necessarily within the scope of the
Security Council's functions and powers. Thus Security Council resolutions
731 (1992) of 21 January 1992 and 748 (1992) adopted on 31 March 1992,
mainly addressed the enquiry into Libya's possible involvement in sponsoring
terrorist activities such as those which led to the destruction of the Pan
Am plane over Scotland in 1988 and the UTA plane over Niger in 1989. [p 202]
9. Clearly, the case filed by Libya in the Registry of the Court on 3 March
1992, relates to “Questions of Interpretation and Application of the 1971
Montreal Convention”, legal questions arising in relation to the aerial
incident at Lockerbie, and this case remains the only matter submitted to
the Court, since the two Respondent States (the United Kingdom and the
United States of America) have not introduced any counter-claims pertaining
to the alleged involvement of the Libyan Government in directing or
assisting the two suspects and the State responsibility ensuing as a result
thereof. The mere fact that the two suspects are civil servants in Libya
does not automatically render them “organs” or “agents” for whose actions
the Libyan Government become ipso jure internationally responsible. To
establish such responsibility from a legal point of view, adequate evidence
must be provided:
First: that the two suspects were truly the authors of that horrible
massacre; and,
Second: that they committed their crime upon orders from their governmental
supervisors or at least with the knowledge and acquiescence of those
persons.
Only then could the criminal activity in question be legally attributable to
the Libyan Government, and State responsibility be established. In other
words, unless the two basic elements indicated above are fulfilled the
involvement of the Libyan Government remains an allegation without legal
effects, and there can always be a certain degree of doubt about either the
culpability of the two suspects or the involvement of the Libyan Government
(as the persons concerned may, for whatever motives, have acted on their
initiative).
***
10. Taking into account the above-stated basic legal premises, the relevance
of Security Council resolutions 731 and 748 to the present court proceedings
should be carefully analysed.
11. To begin with resolution 731, adopted on 21 January 1992, its wording
and the discussion that took place during the meeting at which it was
adopted (doc. S/PV. 3033) reveal that it constitutes a Chapter VII
"recommendation" under Article 39 of the Charter, i.e., one pertaining to
the maintenance of international peace and security.
12. The text of the resolution itself, as well as the interventions of those
who participated in the debates, clearly indicates unanimous, general and
deep concern at the "worldwide persistence of acts of international
terrorism in all its forms", particularly "illegal activities directed
against international civil aviation", and the Security Council's
determination "to eliminate international terrorism". Specifically, with
regard to the attacks carried out against Pan Am flight 103 and UTA flight
772, the Council [p 203] expresses a deep concern "over results of
investigations, which implicate officials of the Libyan Government", and
after strongly deploring "the fact that the Libyan Government has not yet
responded effectively to the above requests [of France, the United Kingdom
and the United States of America] to co-operate fully in establishing
responsibility for the terrorist acts" in question, the Council, in a key
paragraph:
"3. Urges the Libyan Government immediately to provide a full and effective
response to those requests so as to contribute to the elimination of
international terrorism."
13. By so acting, the Security Council politically condemned the Libyan
Government in two ways:
(i) by endorsing the requests of the three big Powers, which included the
demand by two of them that the two Libyan suspects be surrendered;
(ii) by considering that a full and effective response to those requests
would contribute to the elimination of international terrorism, and thus
conduce to the restoration of international peace and security.
14. At the same time, the Security Council totally ignored Libya's plea
regarding the pacific settlement under Chapter VI of the dispute already
existing about the application and interpretation of the Montreal
Convention, of which the President of the Security Council had, as
previously mentioned, been informed on 18 January 1992. The Libyan delegate
reiterated his country's position in this respect during the 21 January
meeting of the Security Council, stating:
"I repeat that the investigation in Libya has unfortunately not yet made any
progress owing to the lack of cooperation on the part of other parties and
their refusal to transmit the dossiers of their investigations. In practical
terms, this can only mean either that no investigation was actually
conducted or that, as we have noted, the investigation was grossly
deficient.
I should like to state once again that this dispute is of a purely legal
nature, which should lead the Council to recommend its settlement through
the divers legal channels that are available, not only within the framework
of the United Nations Charter but also under the provisions of more relevant
international conventions, such as the aforementioned Montreal Convention of
1971. On the basis of that Convention, particularly its article 14, and to
solve the question raised about a conflict of competence, my country has
taken concrete and practical measures and, in official communications
addressed to both the United States of America and the United Kingdom, has
requested that the dispute be referred to arbitration. Today, before the
Council, my country requests that both those countries be invited [p 204] to
enter promptly into negotiations with Libya on proceedings leading to
arbitration and an arbitral panel. To ensure the speedy settlement of the
dispute, we consider that a short and fixed deadline be set for those
proceedings, after which, if no agreement is reached on arbitration, the
matter would be brought before the International Court of Justice.
My country expresses its willingness to conclude immediately, with any of
the parties concerned, an ad hoc agreement to have recourse to the
International Court of Justice as soon as the short deadline for reaching
agreement on arbitration expires, or at any other convenient and near date
should the countries concerned agree to go beyond the arbitration stage and
the proceedings of an arbitration panel.
In that light, how can this dispute be considered a political one? We do not
believe that it is, for Chapter VI of the Charter also sets forth concrete
methods of reaching a peaceful settlement. The Council has been guided by
those methods in earlier instances. The matter should not be handled in the
light of any considerations other than those set forth in the Charter. Libya
has never threatened any country. It cannot behave in such a way as to
endanger peace and security. Indeed, Libya is being threatened by
super-Powers, just as armed aggression was unleashed against it in 1986.
Libya is still being subjected to an economic boycott, disinformation
campaigns and psychological pressure.
In conclusion, the legality of the Council's work is subject to to its
observance of the provisions of the Charter of the Organization and its
proper implementation of those provisions. It is inconceivable that this
could be achieved through the participation of the parties to this dispute
in the voting on the present draft resolution. To disregard the legal nature
of the dispute and treat it as a political matter would constitute a
flagrant violation of the explicit provisions of Article 27, paragraph 3, of
the Charter.
The Council has two choices: it can respect the Charter and follow moral
principles and international law, or it can respond to this unjust request
by the United States of America and the United Kingdom, which want to use
the Council as a cover for military and economic aggression against a small
country that is striving to free itself from economic backwardness. We are
fully confident that the members of the Council - indeed, all Members of the
United Nations - will uphold the principles enshrined in the Charter and
international law and respect the principles of justice and equity that my
country is asking to be applied and abided by." (Provisional Verbatim Record
of the Security Council meeting held on 21 January 1992, doc. S/PV.3033, pp.
22-25.)
[p 205]
15. The Security Council's avoidance of treating the legal aspects of the
problem debated before the adoption of resolution 731 (1992) could have been
due to various reasons, including a desire to exclude recourse to Article
27, paragraph 3, of the Charter, which would have prevented the United
Kingdom and the United States of America from participating in the voting,
since "in decisions under Chapter VI ... a party to a dispute shall abstain
from voting", or simply concern to remain in the political arena without
dwelling on the legal issues raised by Libya, since they logically fell
within the jurisdiction of the International Court of Justice.
16. Whatever may be the reasons, the issue of the application and
interpretation of the Montreal Convention was clearly left outside the scope
of resolution 731 (1992). Hence, when faced with a continuous negative
attitude blocking the prospect of negotiations with the United Kingdom and
the United States of America, whether with a view to amicable settlement or
to the conclusion of an arbitration agreement as provided for in Article 14
(1) of the Montreal Convention, Libya had no other alternative but to resort
to the International Court of Justice in implementation of that same
provision. In doing so, the Libyan Government lawfully exercised a right,
and cannot be blamed for acting in that manner. It has become axiomatic to
state that the unilateral invocation of the Court's jurisdiction should
never be regarded as an unfriendly act, as witness the specific declaration
issued by the Institut de droit international in 1959, to the effect that
"recourse to the International Court of Justice or to another international
court or arbitral tribunal can never be regarded as an unfriendly act
towards the respondent State" (Annuaire de l'Institut de droit
international, Vol. 49 (1959-II), p. 391), as well as paragraph 6 of United
Nations General Assembly resolution 3232 (XXIX) of 12 November 1974,
according to which: "recourse to judicial settlement of legal disputes,
particularly referred to the International Court of Justice, should not be
considered as an unfriendly act between States".
17. Moreover, on a number of occasions the legal aspects of a given dispute
have been submitted to the International Court of Justice with requests to
indicate provisional measures notwithstanding the fact that the political
organs of the United Nations were seised with the other aspects of the same
dispute (Anglo-Iranian Oil Co., Request for Indication of Interim Measures
of Protection (United Kingdom v. Iran), I.C.J. Reports 1951, pp. 89-98; case
concerning United States Diplomatic and Consular Staff in Tehran, Request
for the Indication of Provisional Measures (United States of America v.
Iran), I.C.J. Reports 1979, pp. 7-21; case concerning Military and
Paramilitary Activities in and Against Nicaragua, Request for the Indication
of Provisional Measures (Nicaragua v. USA) I.C.J. Reports 1984, pp. 169-207;
Aegean Sea Continental Shelf, Request for the Indication of Interim Measures
of Protection (Greece v. Turkey) I.C.J. Reports 1976, pp. 3-40).
18. Such parallel co-existence once permitted Judge Petren to emphasize:
"The natural distribution of roles as between the principal judicial [p 206]
organ and the political organs of the United Nations ..." (Separate Opinion
in the Advisory Opinion of 12 June 1971 concerning the Legal consequence for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J.
Reports 1971, p. 127).
No overlapping could normally be envisaged, so long as the basic criterion
of demarcation remains that explicitly stated by the Court in the same
Advisory Opinion, according to which:
"the Court as the principal judicial organ of the United Nations ... acts
only on the basis of the law, independently of all outside influence or
interventions whatsoever ... A court functioning as a court of law can act
in no other way." (Ibid., p. 23, para. 29.)
19. However, the appearance on the scene of the new Security Council
resolution 748 (1992) on 31 March 1992, just three days after the closing of
the hearings on Libya's request for provisional measures, is unprecedented
and raises an important issue about its implications for the present
proceedings.
20. Resolution 748 (1992) not only reaffirmed resolution 731 (1992) of 12
January 1992 but added inter alia that:
"the failure by the Libyan Government to demonstrate by concrete actions its
renunciation of terrorism and in particular its continued failure to respond
fully and effectively to the requests in resolution 731 (1992) constitute a
threat to international peace and security".
21. Acting under Chapter VII of the Charter, the Security Council decided
that: "the Libyan Government must now comply without any further delay with
paragraph 3 of resolution 731 (1992) regarding the requests contained in
documents S/23306, S/23308 and S/23309", otherwise the sanctions provided
for in paragraphs 4, 5 and 6 shall become effective as of 15 April 1992.
22. Evidently, resolution 748 (1992) of 31 March 1992 falls within the
category of decisions under Chapter VII which enjoy as a general rule a
binding character, in the sense that non-compliance with them is considered
a threat to peace and creates new obligations for all parties concerned.
23. Nevertheless, it has to be noted that there are doctrinal authorities
who maintain that the Members of the United Nations are not "obliged" to
carry out all decisions of the Security Council. In his analysis of Article
25 of the Charter, Hans Kelsen wrote:
"It seems, however, as if Article 25 does not mean that the Members are
obliged to carry out all decisions of the Security Council since, according
to its wording, they agree to accept and carry out [p 207] decisions of the
Security Council 'in accordance with the present Charter'." (Hans Kelsen,
The Law of the United Nations - A Critical Analysis of its Fundamental
Problems, London, 1950, p. 95.)
"The meaning of Article 25 is that the Members are obliged to carry out
these decisions which the Security Council has taken in accordance with the
Charter." (Ibid.)
"The term 'decision' may be interpreted to mean ... only decisions which, in
accordance with the provisions of the Charter under which they are adopted,
are binding upon the Members." (Ibid ., p. 293.)
24. The case-law of the Court and the opinions expressed by a number of
Judges provide that concept with some support. It has to be remembered, in
connection with the Advisory Opinion on Namibia previously referred to, that
the Governments of France and South Africa objected that both the General
Assembly and the Security Council had acted ultra vires in the Namibia
question. The Court ruled in this respect that:
"Undoubtedly, the Court does not possess powers of judicial review or appeal
in respect of the decisions taken by the United Nations organs concerned ...
However, in the exercise of its judicial function and since objections have
been advanced the Court, in the course of its reasoning, will consider these
objections before determining any legal consequences arising from those
resolutions." (I.C.J. Reports 1971, op. cit., p. 45, para. 89.)
25. In effect, the Court there exercised the important function of
ascertaining that the resolutions in question had been taken in conformity
with the rules of the Charter, and as a result of that exercise it declared
that:
"In examining this action of the General Assembly it is appropriate to have
regard to the general principles of international law ... " (Ibid., p. 46,
para. 94.)
"The Court has therefore reached the conclusion that the decisions made by
the Security Council in paragraphs 2 and 5 of the resolutions 276 (1970), as
related to paragraph 3 of resolution 264 (1969) and paragraph 5 of
resolution 269 (1969), were adopted in conformity with the purposes and
principles of the Charter and in accordance with its Articles 24 and 25. The
decisions are consequently binding on all States Members of the United
Nations, which are thus under obligation to accept and carry them out."
(Ibid., p. 53, para. 115.)
26. By entering upon this type of legal scrutiny in order to satisfy itself
of the conformity of the Security Council's decisions, or parts thereof, not
only with the rules enshrined in the provisions of the Charter, but also
with "the Purposes and Principles of the Charter", the Court implied that [p
208] it was perfectly conceivable that it could reach a negative decision,
were it to detect any violation of the Charter or departure from the
Charter's purposes and principles.
27. Furthermore, alluding to General Assembly resolution 171 (II) of 14
November 1947, recommending the reference to the Court of a point of law
"relating to interpretation of the Charter", Judge Gros stated in his
dissenting opinion that:
"it would have seemed particularly appropriate to have exercised
unambiguously the Court's power to interpret the Charter ..." (I.C .J.
Reports 1971, op. cit., p. 332, para. 19); and
"It used not to be the Court's habit to take for granted the premises of a
legal situation the consequences of which it has been asked to state ... How
indeed can a court deduce any obligation from a given situation without
first having tested the lawfulness of the origins of that situation?"
(Ibid., pp. 331-332, para. 18.)
28. A survey of the opinions expressed in that case by other Judges reveals
that many of them were eager to indicate their deep attachment to the right
of ensuring that the Court exercises its function as the guardian of
legality throughout the United Nations system.
29. In his opinion, Judge Ammoun emphasized:
"the International Court of Justice owed it to itself to discharge its own
obligations by not closing its eyes to conduct infringing the principles and
rights which it is its duty to defend" (ibid., p. 72, para. 3).
30. Judge Petren also declared in his separate opinion:
"So long as the validity of the resolutions upon which resolution 276 (1970)
is based has not been established, it is clearly impossible for the Court to
pronounce on the legal consequences of resolution 276 (1970), for there can
be no such legal consequences if the basic resolutions are illegal ..."
(Ibid ., p. 131.)
In another separate opinion, Judge Onyeama stated:
"In exercising its functions the Court is wholly independent of the other
organs of the United Nations and is in no way obliged or concerned to render
a judgment or opinion which would be 'politically acceptable'. Its function
is, in the words of Article 38 of the Statue, 'to decide in accordance with
international law'.
...
when ... decisions bear upon a case properly before the Court, a correct
judgment or opinion could not be rendered without determining [p 209] the
validity of such decisions, the Court could not possibly avoid such a
determination without abdicating its role of a judicial organ.
................................................................
I do not conceive it as compatible with the judicial function that the Court
will proceed to state the consequences of acts whose validity is assumed,
without itself testing the lawfulness of the origin of those acts." (Ibid.,
pp. 143-144.)
31. In response to a question about the Court's power to pronounce as to the
invalidity or nullity of resolutions of the General Assembly and Security
Council, and with reference to a dictum of Judge Morelli's in a previous
case (I.C.J. Reports 1962, p. 223) concerning a resolution initiated by a
manifest excès de pouvoir, Judge de Castro envisaged the interplay of two
principles:
"1. The principle of division of powers - the Charter set up three organs,
each having sovereign powers in the sphere of its competence ...;
................................................................
2. The principle of 'legal-ness' - the Court, as a legal organ, cannot
co-operate with a resolution which is clearly void, contrary to the rules of
the Charter, or contrary to the principles of law." (I.C.J. Reports 1971, p.
180.)
32. Finally, the dissenting opinion of Judge Sir Gerald Fitzmaurice provided
a profound analysis of the various presentations, which can be summarized as
follows:
(i) the Security Council, even when acting genuinely for the preservation or
restoration of peace and security, has a scope of action limited by the
State's sovereignty and the fundamental rights without which that
sovereignty cannot be exercised (ibid., p. 226, para. 10);
(ii) the relevant circumstances sufficed to render resolution 2145 invalid
and inoperative (ibid., p. 280, para. 91);
(iii) Article 25 cannot render binding a decision not taken "in accordance
with the present Charter" (ibid., p. 293, para. 113);
(iv) even when acting under Chapter VII of the Charter, the Security Council
has no power to abrogate or alter existing rules (ibid., p. 294, para. 115);
(v) The United Nations (with all its organs, including the Security Council)
is itself a subject of international law, and subject to it, no less than
its individual Member States (ibid., p. 294, para. 115);
(vi)a political organ is not competent to make the necessary legal
determination on which the justification for each action must rest. This can
only be done by a legal organ competent to make such determination,
otherwise the resolution may have to be considered ultra vires and hence
invalid (ibid., pp. 299-301). [p 210]
33. In the light of the statements emanating from the above-mentioned
authorities, it is possible to consider that the Security Council, when
adopting paragraph 1 of resolution 748 (1992), impeded the Court's
jurisdiction freely to exercise its inherent judicial function with regard
to issues on which argument had been heard just a few days before, and that
by doing so the Security Council committed an act of excès de pouvoir which
amounts to a violation of Article 92 of the Charter, which entrusted the
International Court of Justice with the mission of being "the principal
judicial organ of the United Nations".
34. In order properly to discharge its main function, the Court must have
full liberty to exercise its adjudicating powers and to form its own opinion
on the issues under consideration without any limitation.
35. As was rightly stated by Judge Morelli:
"Any limitation ... would be unacceptable because it would prevent the Court
from performing its task in a logically correct way.
................................................................
This freedom can however be understood only as subordinated both to the
rules of law and logic by which the Court is bound and also to the objective
which the Court must pursue, which is the solution of the question submitted
to it." (Separate opinion, Advisory Opinion of 20 July 1962 concerning
Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), I.C.J Reports 1962, pp. 217-218.)
36. The ultra vires character of paragraph 1 of resolution 748 (1992)
appears even more serious considering that a number of delegates at the
Security Council meeting of 31 March 1992 are reported to have warned those
pushing for a hasty adoption of the draft then under discussion against the
negative effects of such failure to observe due respect for the Court's
credibility and the integrity of its judicial function.
37. According to the Provisional Verbatim Record, Mr. Jesus of Cape Verde
pointed out that:
"It would be more appropriate if the Council were to act after the
International Court of Justice - which is now seised of this matter - had
decided ..." (doc. S/PV.3063, p. 46).
38. The President for the month of April, Mr. Mumbengegwi of Zimbabwe,
reminded the Council that:
"The Charter provides that disputes of a legal nature should, as a general
rule, be referred by the parties to the International Court of Justice ...
By taking the Chapter VII route while this case is still pending before the
World Court, the Security Council is risking a major institutional crisis.
Such an institutional crisis, which is clearly avoidable, would not only
undermine the prestige, credibility and integrity of [p 211] the entire
Organization but would also sap international confidence in the Security
Council's capacity to execute, in a judicious and objective manner, its
mandate as provided for in the Charter. We are convinced that it would have
been in the best interests of international tidiness for the Security
Council to await the outcome of the judicial proceedings at the
International Court of Justice." (Ibid., pp. 52-53.)
39. The Indian representative, Mr. Gharekhan, among others, stressed that:
"The considered opinion of the International Court of Justice on the legal
aspects of the issues involved can only serve the cause of international law
and peace." (Ibid., p. 58.)
40. It is clear that those wise warnings were ultimately inspired by the
respect due to the United Nations Charter, in its letter and spirit, but
unfortunately the appeal for supremacy of "the rule of law" went unheeded in
an atmosphere dominated by emotional political pressures.
41. In order to avoid the present situation, it would have been more
appropriate for certain members of the Security Council to take guidance
from the precedent established by the Council of the League of Nations when
it decided that it could not accept a petition because the subject matter
was before the Permanent Court of International Justice, and postponed
consideration of the question until that Court had given its decision in the
Minority Schools case (Shabtai Rosenne, The Law and Practice of the
International Court, Vol. I, Leyden, 1965, p. 83).
42. Doubtless the Court itself, the principal judicial organ of the United
Nations, was not the target of the Council's haste; the adoption of
resolution 748 (1992) without waiting for the Court's ruling on the request
for provisional measures seems to have been more intended to put the maximum
pressure possible on Libya to forfeit its claim to invoke sovereign rights
under Article 1, paragraph 2, Article 2, paragraph 7, and Article 55 of the
Charter. Yet the entire Organization is based on the principle of the
sovereign equality of all its Members, and the exercise of domestic
jurisdiction in matters such as extradition imposes on all other States, as
well as on the political organs of the United Nations, an obligation to
respect such inherent rights, unless the Court decides that such exercise is
contrary to international law, whether customary or conventional.
43. It is important to remember in this respect what Max Huber, the former
President of the Permanent Court of International Justice, declared when
acting as sole arbitrator in the Island of Palmas case:
"Sovereignty in the relation between States signifies independence.
Independence in regard to a position of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State."
(Myres McDougal and Michael Reisman, International [p 212] Law in
Contemporary Perspective; the Public Order of the World Community: Cases and
Materials, Mineola, New York, Foundation Press, 1981.)
44. Upholding the same basic concept of sovereignty as is protected under
the United Nations Charter, the United States courts ruled that:
"The right of a foreign power to demand extradition of one accused of crime
and the correlative duty to surrender him exists only when created by
treaty, and in the United States, in the absence of statutory or treaty
provision thereof, no authority exists in any branch of the government to
surrender a fugitive criminal to a foreign government." (Ramos v. Diaz, 179
F. Sup. 459 (S.D. Fla. 1959), reproduced by McDougal and Reisman, op. cit.,
at p. 1498.)
45. Moreover, in the Asylum case, the Court strongly emphasized that: "A
decision with regard to extradition implies only the normal exercise of the
territorial sovereignty." (I.C.J. Reports 1950, p. 274.)
46. It would be hard to believe that under contemporary international law
the rights of a foreign fugitive are more protected than those of an accused
citizen, or that what is a legal act of the United States Government becomes
an illegal act for the Libyan Government, unless we are supposed to be
living on Orwell's Animal Farm, where some animals are more equal than
others.
47. For all the above-stated considerations, I am of the opinion, with all
due respect, that paragraph 1 of Security Council resolution 748 (1992)
should not be considered to have any legal effect on the jurisdiction of the
Court, even on a prima facie basis, and accordingly that the Libyan request
for provisional measures has to be evaluated in accordance with the habitual
pattern reflected in the established jurisprudence of the Court.
***
48. Without going into an extensive analysis of all the precedents related
to the granting or denial of provisional measures and the relevant
circumstances which led the Court to act one way or another, it seems
sufficient within the present context to refer essentially to the rules
relied upon in the most recent cases in which a request for provisional
measures was considered.
49. On the basis of Article 41 of the Statute, the Court may exercise its
independent jurisdiction to indicate provisional measures once satisfied
that "the provisions invoked by the Applicant appear, prima facie, to [p
213] afford a basis on which the jurisdiction of the court [on the merits]
might be founded" (Passage through the Great Belt, Order of 29 July, I.C.J.
Reports 1991, p. 15, para. 14).
50. In conformity with said established rule, I do believe that the
provisions of Article 14, paragraph 1, of the Montreal Convention invoked by
the Applicant appear to afford a prima facie basis on which the jurisdiction
of the Court might be founded. Here the basis is clearly stronger than in
the Anglo-Iranian Oil Co. case which produced the Order of 5 July 1951
granting interim measures of protection (I.C.J. Reports 1951, pp. 93-94),
though offering less outright justification than in the case concerning Unit
ed States Diplomatic and Consular Staff in Tehran, when the Court adopted
the Order of 15 December 1979 (I.C.J. Reports 1979, pp. 14-15).
51. With regard to the existence of a dispute between the Applicant and the
Respondent which concerns the "interpretation or application" of the 1971
Montreal Convention, I am bound to note that, once one applies the criteria
unanimously established by the Court in the Advisory Opinion of 26 April
1988 concerning the Applicability of the Obligation to Arbitrate under
Section 21 of the United Nations Headquarters Agreement of 26 June 1947
(I.C.J. Reports 1988, p. 32, para. 49) while taking into consideration the
wide difference of opinion between the Parties as reflected in the oral
proceedings, there cannot be the slightest doubt about the existence of a
dispute pertaining to the scope, applicability and interpretation of various
provisions in the Montreal Convention.
52. In the present phase of the proceedings, the Parties raised a number of
issues pertaining to determination of the questions whether the dispute can
"be settled through negotiation", whether there has been a rejection of a
Libyan offer to arbitrate the dispute, and what might be the legal effect of
the six-month period contemplated by Article 14, paragraph 1, of the
Montreal Convention.
53. Recalling the famous dictum of the Permanent Court of International
Justice in the Mavrommatis Palestine Concessions (P.C.I.J., Series A, No. 2,
p. 13), the Court's Order in the case concerning United States Diplomatic
and Consular Staff in Tehran (I.C.J. Reports 1979, pp. 32-34, paras. 52-56),
and taking into account all the relevant circumstances as reflected in the
documents submitted by the Parties, I am of the opinion that it would be
safe to conclude that the United Kingdom and the United Sates were not at
any time, whether before or after seising the Security Council, interested
in settling the dispute through negotiations or through recourse to
arbitration. The Libyan notes of 8 January and 17 January 1992 were totally
ignored, rendering those two methods of peaceful settlement practically
useless and inoperative. Thus there was no meaningful reason to wait for the
lapse of the six-month period, particularly when the wording of "within" or
"dans" which figures in the text of Article 14, paragraph 1, of the Montreal
Convention does not clearly render this [p 214] time element a mandatory
requirement which bars recourse to the Court before its expiration.
54. The exercise by the Court of its power to indicate provisional measures
is subject, according to the wording of Article 41, to the Court's
determination that "circumstances so require". In this respect, the
established jurisprudence of the Court with regard to the implications of
this phrase has recently been formulated in the following terms:
"Whereas the power of the Court to indicate provisional measures under
Article 41 of the Statute of the Court has as its object to preserve the
respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice should not be caused to rights which
are the subject of dispute in judicial proceedings." (Passage through the
Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July
1991, I.C.J. Reports 1991, p. 16, para. 16).
55. Without going into details which are at present not needed in the light
of the Order rendered by the Court, the principles underlining the adoption
of the Montreal Convention include the rule aut dedere, aut judicare (or aut
dedere, aut punire, as the case may be in view of the stage reached, which
has been explained by Judge Guillaume in his course at the Hague Academy of
International Law, RCADI, op. cit, Chap. IV, pp. 354-371). The rule in
question necessarily implies confirmation of the deeply rooted principle of
general international law according to which no State can be obliged to
extradite any persons, particularly its own citizens, in the absence of a
treaty explicitly providing for such extradition. In particular, the
provisions of Article 7 read with Article 8 (2) of the Montreal Convention
entitle any Contracting State to refuse extradition in all cases not subject
to an existing extradition treaty. This has been confirmed, through approval
by more than 130 Contracting States, as a sovereign right recognized by
general public international law. Accordingly, under the Montreal
Convention, no other State or group of States can be considered entitled to
force another State to extradite, and this applies particularly with regard
to its own citizens when their extradition is prohibited under the State's
domestic legal system.
56. Neither the United Kingdom nor the United States enjoys in this respect
any right other than those enjoyed by all other Contracting States,
including Libya: hence, if either country is faced in the future with a
similar situation where their authorities are requested to extradite, the
same rule of aut dedere, aut judicare will apply. In other words, no
irreparable prejudice could be caused to the conventional rights acquired by
the respective Parties to the present proceedings if the rule aut dedere,
aut judicare is fully implemented. 0n the contrary, irreparable prejudice to
Libya [p 215] would ensue if it is forced to deliver to another State its
own citizens, since the State's sovereign right recognized under the
Montreal Convention would then suffer total eclipse and extinction. Such
deprival of the State's sovereignty could not be remedied at any later stage
by the Court, and that is a sure test of the irreparability of the
prejudice. In a nutshell, once a forced surrender takes place, the present
case related to the interpretation and application of the Montreal
Convention will become meaningless, since there will be no more legal issue
to be adjudicated. But this will not have occurred through due application
of law.
57. For all the above-stated considerations, I was and remain of the opinion
that the circumstances of the present case required the indication of
provisional measures, particularly since there was extreme urgency for the
Court to act in order to avoid the coming into force of the sanctions
adopted by the Security Council under certain paragraphs of resolution 748
(1992), a decision taken by the Security Council in the exercise of its
powers under Chapter VII, hence outside the scope of the legal issue pending
before the Court.
58. With regard to what provisional measures could be considered
appropriate, taking into account all the relevant circumstances of the
present case, it has to be noted that under Article 41 of the Statute of the
Court the determination of the measures to be indicated should establish a
balance between the "respective rights of the parties". In the exercise of
its powers and in conformity with Article 75 of its Rules the Court may
decide to indicate proprio motu measures "that are in whole or in part other
than those requested, or that ought to be taken or complied with by the
party which has itself made the request".
59. In this respect, special attention has to be focused on the interesting
precedent established as a result of the Order of January 1968 rendered by
the Chamber of the International Court of Justice formed to deal with the
case concerning the Frontier Dispute (Burkina Faso/Republic of Mali ). In
considering the indication proprio motu of provisional measures the Chamber
declared:
"18. Considering that, independently of the requests submitted by the
Parties for the indication of provisional measures, the Court or,
accordingly, the chamber possesses by virtue of Article 41 of the Statute
the power to indicate provisional measures with a view to preventing the
aggravation or extension of the dispute whenever it considers that
circumstances so require;
19. Whereas, in particular ... the principal judicial organ of the United
Nations, with a view to the peaceful settlement of a dispute, in accordance
with Article 2, paragraph 3, and Article 33 of the Charter of the United
Nations ... there can be no doubt of the Chamber's [p 216] power and duty to
indicate, if need be, such provisional measures as may conduce to the due
administration of justice; ..." (I.C.J. Reports 1986, p. 9.)
60. I am of the opinion that the Court should have acted in that sense, in
the light of the special circumstance of the present case characterized by
the fact that the two Libyans suspected to be the authors of the Lockerbie
massacre could not possibly receive a fair trial, neither in the United
States or in the United Kingdom, nor in Libya.
61. With all my sense of deepest admiration for the judicial system of the
oldest contemporary democracy, the country of Magna Carta (1215) and the
Bill of Rights (1688), I seriously doubt, nevertheless, that the two Libyan
suspects could have a fair trial in the United Kingdom. As justly observed
by Professor Mauro Cappelletti, even in the field of civil litigation:
"One is tempted to believe that the proposition that even in England certain
procedural rights and guarantees are, and have long since, been considered
basic to a fair administration of justice, has no juridical meaning at all."
(Fundamental Guarantees of the Parties in Civilian Litigation, ed. Mauro
Cappelletti and Denis Tallon, Milan, 1973, p. 70.)
62. Concerning criminal proceedings, the world legal community cannot easily
forget that both the European Commission and Court of Human Rights concluded
that the United Kingdom had violated Article 3 of the European Convention on
Human Rights by inflicting inhuman and degrading treatment on prisoners
suspected of terrorism, in the sense of arousing "feelings of fear, anguish
and inferiority capable of humiliating and debauching them and possibly
breaking their physical or moral resistance"; and for using the so-called
"five techniques" causing "at least intense physical and mental suffering as
well as leading to acute psychiatric disturbance during interrogation"
(Judgment of 18 January 1978, case of Ireland v. the United Kingdom,
Publications of the European Court of Human Rights, Series A, Judgments and
Decisions, Vol. 25, pp. 59-94). I have no doubt at all that the British
Government took this condemnation to heart and has done its utmost to
eliminate all such inhumane methods. Nevertheless, bearing in mind the
heinous nature of the crimes imputed to the Libyan suspects, one may still
understand the suspicion in some minds that fairness might have limits in
their respect.
63. In the United States of America an even more disturbing factor would
result from the extraordinary impact of the mass media and the role it plays
in rendering almost impossible the conduct of fair trial by jury, as witness
the public debates aroused as a result of what happened in a number of
recent cases. Such situation is in clear conflict with the requirement for
"a fair and public hearing by an independent and impartial tribunal"[p 217]
provided for under Article 10 of the 1948 United Nations Universal
Declaration of Human Rights; and equally Article 14, paragraph 1, of the
1966 United Nations Convention on Civil and Political Rights, which
emphasizes the existence of "special circumstance where publicity would
prejudice the interests of justice".
64. At the same time, in view of the fact that the two Libyan suspects were
or are still working for the Government of their country, and that their
trial could eventually lead to the emergence of a subsequent case of State
international responsibility against Libya, I feel that this factual
situation constitutes sufficient grounds to doubt that the interest of both
the United States and the United Kingdom in ensuring a fair trial could be
adequately safeguarded in case the trial were conducted in Libya. Whatever
may be the merits of the Libyan judicial system under normal circumstances,
the need for an even-handed and just solution leads me to consider, within
the special context of the present case, that the Libyan domestic courts
could not be the appropriate forum. This conclusion derives logically and
necessarily from the fundamental legal principles, deeply rooted in the
legal traditions of the major systems, particularly Islamic law
(Weeramantry, Islamic Jurisprudence, an International Perspective, MacMillan
Press, 1988, pp. 76-77 and pp. 79-81), according to which nemo debet esse
judex in propria sua causa.
65. Under the above-mentioned special circumstances of the dispute between
the Parties, and in the exercise of the Court's inherent power for the
peaceful settlement of disputes, to ensure the proper administration of
justice, and in view of preventing the aggravation and extension of the
dispute, I am of the opinion that the Court could have indicated proprio
motu provisional measures to the effect that:
-Pending a final decision of the Court, the two suspects whose names are
identified in the present proceedings should be placed under the custody of
the governmental authorities in another State that could ultimately provide
a mutually agreed and appropriate forum for their trial.
-Moreover, the Court could have indicated that the Parties should each of
them ensure that no action of any kind is taken which might aggravate or
extend the dispute submitted to the Court or likely to impede the proper
administration of justice.
(Signed) Ahmed Sadek El-Kosheri.
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