14 April 1992

 

General List No. 88

 
     

international Court of Justice

     
 

Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie

 
     

Libya

 

v. 

United Kingdom

     
     
 

Order

 
     
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BEFORE: Vice-President: Oda
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1992.04.14_lockerbie2.htm
   
Citation: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3 (Order of Apr. 14)
 
     
 
 
     
 

[p.3]
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,

Having regard to the Application by the Socialist People's Libyan Arab Jamahiriya (hereinafter called "Libya") filed in the Registry of the Court [p 4] on 3 March 1992, instituting proceedings against the United Kingdom of Great Britain and Northern Ireland (hereinafter called "the United Kingdom") in respect of "a dispute ... between Libya and the United Kingdom 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 Kingdom 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

"In November 1991, the Lord Advocate of Scotland charged two Libyan nationals (the 'accused') alleging, 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 Kingdom 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 Kingdom 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 may be necessary to establish its jurisdiction over the offences men-[p5]tioned 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 6] Libya has not extradited the accused, there being no extradition treaty in force between it and the United Kingdom, 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 Kingdom in connection with the criminal proceedings instituted by Libya, with the competent Libyan authorities offering to co-operate with the investigations in the United Kingdom or in other countries, but that the United Kingdom 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 Kingdom 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 Kingdom, 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 Kingdom 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 Kingdom 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 Kingdom 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 Kingdom 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 Kingdom 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 7]

(c) that the United Kingdom 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 Kingdom 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 Kingdom 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 Kingdom, 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 Kingdom under that Convention; that only by granting provisional measures enjoining the United Kingdom 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 Kingdom 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 8]


11. Whereas Libya, considering that the Court's jurisdiction in the case is 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 Kingdom 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 Kingdom 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, 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;

15. 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;

16. 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;

17. Whereas on 26 March 1992, at the opening of the hearings on the [p 9] 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;

18. 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 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 Kingdom:

Mr. F. D. Berman, C.M.G., Agent,
Mr. Alan Rodger, Q.C.,
Mrs. Rosalyn Higgins, Q.C.;

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;

19. 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 Kingdom ... from taking against Libya measures calculated to exert coercion on it or compel it to surrender 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 Applications";

20. Whereas at the hearing held on 28 March 1992 the United Kingdom presented the following submission:

"That the Court should decline to indicate interim measures in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)";

***[p 10]

21. 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";

22. Whereas, in its Application, Libya states that a dispute exists between Libya and the United Kingdom 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 Kingdom for arbitration of the dispute has been rejected by the United Kingdom, 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 Kingdom of the Montreal Convention and the United Kingdom's 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;

23. 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;

24. Whereas in the course of the oral proceedings the United Kingdom contended that Libya had failed to show that Article 14, paragraph 1, of the Montreal Convention prima facie appeared to afford a basis on which the jurisdiction of the Court might be founded in that Libya had not established the existence of a dispute concerning the interpretation or application of the Montreal Convention; that, even if there was any such dispute, Libya had failed to establish that the dispute could not be settled through negotiation; that, even if the dispute could not be so settled, Libya had not made a proper request for arbitration; and that, even if such a [p 11] request had been made, the period of six months referred to in that provision had not expired when Libya's Application was filed;

25. Whereas the United Kingdom further contended that Libya had failed to establish the possible existence of the rights claimed; that there was no nexus between the rights sought to be protected and the provisional measures requested; and that there was no proof that the rights sought to be protected would suffer irreparable damage if the provisional measures requested were not indicated;

26. Whereas the United Kingdom further contended that there was no proof of urgency; that there was no proof that the United Kingdom was threatening Libya with measures, including possible recourse to the use of armed force, as alleged by Libya; that the provisional measures requested were vague, imprecise and unsuitable to be indicated as orders of the Court; that provisional measures could not, as claimed by Libya, be indicated, for the sole purpose of preventing an aggravation or extension of a dispute and, if they could, could not justifiably be granted on that basis in the circumstances of this case;

27. Whereas the United Kingdom also contended that the provisional measures sought by Libya should be refused for the reason that they were designed to fetter the Security Council of the United Nations in the exercise of its proper powers and to preclude the Security Council from acting in relation to a wider dispute involving allegations that the Libyan State was guilty of State terrorism;

28. Whereas, following on the charges brought by the Lord Advocate of Scotland against the two Libyan nationals in connection with the destruction of Pan Am flight 103, the United Kingdom and the United States of America 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;

- 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";

29. Whereas the subject of that declaration was subsequently considered by the United Nations Security Council, which on 21 January 1992 [p 12] 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;



30. 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 Kingdom or the United States;

31. Whereas Libya contended that provisional measures were urgently required in order to cause the United Kingdom 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 Secu-[p 13]rity Council for the purpose of impairing that right to exercise jurisdiction, which Libya asks the Court to recognize;

32. 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;

........................................................

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";


33. Whereas Document S/23308, to which reference was made in resolution 748 (1992), included the demands set out in paragraph 28 above;[p 14]

34. 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;

35. 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, in as much as by deciding, in effect, that Libya must surrender its nationals to the United Kingdom and the United States, 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 Kingdom and the United States should so act as not to infringe Libya's rights, for example by seeking a suspension of the relevant part of resolution 748 (1992);

36. 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.

37. Whereas in its observations on Security Council resolution 748 (1992), presented in response to the Court's invitation, the United Kingdom recalls the arguments it put forward during the hearings on the questions of the relationship between the present proceedings and proceedings in the Security Council, and of the powers of the Court and the Council under the Charter, and submits further that that resolution imposed obligations upon both Parties (which the United Kingdom specified), which continue to subsist, and that, under the system of the Charter (in particular Articles 25 and 103), those obligations prevail in the event of conflict with obligations under any other international agreement;

38. 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;[p 15]

39. Whereas both Libya and the United Kingdom, 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;

40. 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 Convention cannot now be regarded as appropriate for protection by the indication of provisional measures;

41. 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 Kingdom by virtue of Security Council resolution 748 (1992);

42. 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 Kingdom to submit arguments in respect of any of these questions;

43. 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 [p 16] in the archives of the Court and the others transmitted to the Government of the Libyan Arab Jamahiriya, and the Government of the United Kingdom of Great Britain and Northern Ireland, 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 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 Bejaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-KosheriEL- append dissenting opinions to the Order of the Court.

(Initialled) S.O.

(Initialled) E.V.O. [p 17]


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 18] 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 Kingdom 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 19] 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 (1992) was adopted.

(Signed) Shigeru Oda. [p 20]


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 21] 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 22]

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 23]

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 24]


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 25] 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 26]


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 27]
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 28]


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 29] 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

Libya's challenge to the validity of Security Council resolution 748 (1992) stands deferred to the hearing of its Application on the merits. But the refusal of its request for interim measures has immediate practical effects. These immediate practical effects inevitably invite attention to a point which can scarcely be overlooked in a judicial forum.

As is shown by the material before the Court, the evolution of the controversy between the Parties centred, in a basic sense, on the question of the need for an impartial trial. The United Kingdom contended that such a trial could not be had in Libya for the reason that the offences concerned acts of terrorism carried out by the two accused on behalf of the State of Libya (see Statement of the Permanent Representative of the United Kingdom in the Security Council, 21 January 1992, S/PV.3033, p. 105; and Solicitor General Rodgers, Q.C., Public Sitting of 26 March 1992 (afternoon), CR92/3, pp. 21-22, and Public Sitting of 28 March 1992 (afternoon), CR92/6, p. 8). On the other hand, Libya took the position that the United Kingdom has prejudged the case against its two nationals [p 30] (Public Sitting of 26 March 1992 (morning), CR92/2, p. 58, Professor Salmon). To this the United Kingdom has made answer that its prosecuting authorities have merely expressed the view that the evidence is enough to justify the bringing of charges. In the words of the Permanent Representative of the United Kingdom to the United Nations:

"We are not asserting the guilt of these two men before they are tried, but we do say that there is serious evidence against them which they must face in Court." (S/PV.3033, 21 January 1992, p. 103.)

And, in the words of the Solicitor General for Scotland:

"I pause to observe that it was a recurring theme of the speeches made on behalf of the Applicant this morning that by asking for the accused to be handed over the United Kingdom was somehow violating the principle that their innocence was to be presumed until they had been found guilty.

It is certainly true that my colleague the Lord Advocate has sufficient evidence to justify charging these two men but if they are handed over for trial in Scotland their guilt or innocence will be determined not by the Lord Advocate, nor by the Government of the United Kingdom, but by a jury of 15 ordinary men and women." (Public Sitting of 26 March 1992 (afternoon), CR92/3, p. 21.)

Now, it was in evidence before the Court (see para. 28 of the Court's Order) that the formal demands of the United Kingdom and the United States, as publicly addressed to Libya on 27 November 1991, read as follows:

"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.)

These demands were made with specific reference to the charges brought by the Procurator Fiscal on the direction of the Lord Advocate against the two accused. The demands were subsequently endorsed by the Security [p 31] Council, being incorporated by reference in its resolutions 731 (1992) and 748 (1992), both of which were promoted and supported by the United Kingdom.

It will be seen that the United Kingdom's third demand, that Libya "must ... pay appropriate compensation", was not expressed to be contingent on the accused being eventually convicted after a trial. The demand, like the other demands, was specifically stated as a demand which was expected to be complied with "promptly and in full". This could only mean that it was to be complied with forthwith and therefore before any trial could possibly be held. That interpretation is reinforced by operative paragraph 1 of Security Council resolution 748 (1992) by which the 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".

Document S/23308 set out the demands referred to above.

Since the ground on which the United Kingdom made its demand for payment of compensation was that Libya had engaged international responsibility for the crimes allegedly committed by its two accused nationals, the making of the demand for payment "promptly and in full" constituted a public and widely publicized announcement by the Respondent State of a prior determination by it, as a State, that the two accused were in fact guilty of the offences charged. As noted above, the Solicitor General for Scotland affirmed to the Court that "their guilt or innocence will be determined not by the Lord Advocate nor by the United Kingdom ...". True, in the sense that guilt is for the courts; but it is nevertheless clear that guilt has already been determined "by the United Kingdom" as a State.

There is a related aspect. The guilt of the accused, said the Solicitor General, would be determined "by a jury of 15 ordinary men and women". That would happen in Scotland, where this tragic event took place, an event which both Parties agree (as, indeed, does everyone) was a dreadful crime by whomsoever perpetrated. The excellence of the Scottish system of justice has not been put in issue. Yet, the foregoing cannot be without serious implications for an impartial trial. That is important, for, as suggested above, there is a fundamental sense in which it can be said that the question of an impartial trial lies at the root of the entire controversy relating to the Respondent's demand for the surrender of the two accused (see, generally, Halsbury's Laws of England, 4th ed., Vol. 9, p. 10, para. 11, as to the prejudicial effect of public statements affirming innocence or guilt; Archbold's Criminal Pleading, Evidence and Practice, 40th ed., p. 1670, para. 3468, stating that "a jury are more likely to be swayed by prejudicial [p 32] matter than a judge"; Sir J.H.A. Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th ed., 1948, pp. 215-216; and David M. Walker, The Scottish Legal System, 1981, pp. 339-340).

(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 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 33]


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 34] 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.

6. 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 35] 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 36]

"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 definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation." (Mav rommatis 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 37] 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, p. 25, 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 38]

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 39] 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, inasmuch 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 40] 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 41]

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 42] 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 of Judge Gros, p. 340, para. 34). [p 43]

"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 of Sir Gerald 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 44]

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, CR92/4, p. 67; emphasis added). 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 45]

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 (morning), CR92/2). 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 46] 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; emphasis added.)

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 40 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.

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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.
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[p 47]



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 the stage of the merits must remain unaffected by the Court's decision" (para. 38)

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 these questions" (para. 42).

***[p 48]

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 focusing 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 49]

"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 50]


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 in as much as there is no "dis-[p51]pute" within the meaning of Article 14 (1) and that, in any event, the stipulated six-month period has not elapsed.

At the present state 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 Kingdom had stated to the Security Council:

"The letter dated 18 January concerning a request for arbitration under Article 14 of the Montreal Convention is not relevant to the issue before the Council. The Council is not, in the words of Article 14 of the Montreal Convention, dealing with a dispute between two or more Contracting Parties concerning the interpretation or application of the Montreal Convention." (S/PV3033, pp. 104-105 of the English text.)

There was also the circumstance that, instead of seeking arbitration under the Montreal Convention, the British Government, along with that of the United States, issued a statement on 27 November 1991 declaring that the Government of Libya must surrender all those charged with the crime.

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 [p 52] 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 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, [p 53] 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 provisions 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 [p 54] fundamental right derived from the sovereignty of the State, a right which cannot be derogated from.

Counsel for the United Kingdom stated, as one of the United Kingdom's three principal contentions, that:

"Libya's Application, while purporting to enjoin action by the United Kingdom against Libya, is in fact directed at interfering with the exercise by the Security Council of its functions and prerogatives under the United Nations Charter" (Public Sitting of 26 March 1992 (afternoon), CR92/3, p. 10).

The United Kingdom stressed that, though the jurisdictions of Security Council and the International Court are parallel, matters of political appreciation are for the Security Council alone (Public Sitting of 26 March 1992 (afternoon), CR92/3, p. 72).

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 [p 55] 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 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 the 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). [p 56]

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. 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 [p 57] 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 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

In the Aegean Sea case, Judge Tarazi observed:

"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, [p 58] whose genesis marked a new stage in the course of history, features 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 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 [p 59] requests. It is part of the scheme of the Charter that the International Court is not similarly restrained.

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 [p 60] 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 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 61] 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, the power of the Security Council to 'recommend' ('recommander') involved the possibility that a Member of the Organization might be [p 62] 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).

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 [p 63] 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 Norwegian 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 [p 64] 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 provided 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 [p 65] 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 chapître 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 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 [p 66] 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 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 [p 67] 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 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. [p 68]

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 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 [p 69] 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 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:

"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 settle-[p 70]ment. 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 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 72]


Dissenting opinion of judge Ranjeva

[Translation]

1. The present request for the indication of provisional measures is, in many respects, an unprecedented case in international adjudication. While the Court cannot reject the request (I), nor can it pronounce owing to the fundamental change of circumstances following the adoption of Security Council resolution 748 (1992) (II), without for all that refraining, in principle, from the proprio motu exercise of its powers under Article 41 of the Statute (III).

I. The Court's competence to order provisional measures

2. On the basis of general international law, confirmed by the Montreal Convention, the Applicant enjoys the right to choose expressed in the traditional adage: aut dedere aut judicare; this right is opposable erga omnes and creates the obligation to effectively carry through, in normal conditions, proceedings for the establishment of criminal responsibility in the Lockerbie bombing. However, the Respondent has contested this right of the Applicant by characterizing it as "illusory".

3. On analysis, the Respondent's thesis appears to be contestable inasmuch as it is guilty of confusion. For either the Respondent is questioning the efficacy of the provisions of the Convention relating to extradition, or he is contesting the Applicant's right to effectively exercise his competence in this sphere. If the former is the case, the result would be deplorable; but this would in no way weaken the binding nature of the provisions of the Convention, being as they are binding on all the parties to the said instrument. If the latter is the case, we would be faced with a disregard for the "general principles of law recognized by civilized nations", principles founded upon the equality of States and their equal ability to ensure that obligations under international law are fulfilled.

4. Hence the Court is not seised solely of the question of the Applicant's obligation to extradite two of its nationals suspected, on completion of the preliminary enquiries, of being the authors of the Lockerbie bombing. No Application alleging international responsibility for an act of terrorism has been filed. This Court has therefore rightly limited the subject of its proceedings solely to the question of the Applicant's right to oppose, by judicial means, a possible obligation to extradite its nationals, whom it intends to prosecute, exercising its right thereto under international law and the Montreal Convention.

5. The case-law of the Court, referred to in the case concerning Pas sage through the Great Belt (I.C.J. Reports 1991, p. 17, para. 22), justified the indication of provisional measures in principio litis. In the particular cir-[p 73]cumstances of the case, with respect to both its scope and its nature, the Applicant's right would have been under threat of disappearance had the contrary claim of the Respondent been acted upon. Here, on the contrary, under the Montreal Convention, the Respondents possess the power to prosecute the above-mentioned suspects. This collision of opposing rights, a clash centered upon a question of criminal responsibility, is the cause not only of what may well be irreparable prejudice, but above all of an aggravation of the dispute. Under Article 41 of the Statute, the Court has the power to indicate "provisional measures ... to preserve the respective rights of either party". Hence it was for the Court, in the interests of the good administration of justice, to decide, bearing in mind the equality of rights of the Parties and the maintenance of international peace and security, ensuring that the legal obligations of the various Parties were respected.

6. The adoption of the recommendation which is the subject of Security Council resolution 731 (1992) does not deprive the Applicant of its right to institute proceedings before the Court to request the indication of provisional measures. On examination, the operative parts of this resolution prove to be an interpretation that this principal political organ of the United Nations gives of the application of the rules in the Lockerbie bombing. The nature of the Security Council does not confer upon its recommendatory acts the legal effects of res judicata . It is from the standpoint of international law, of which the Charter and the law of the United Nations form an integral part, that the scope of resolution 731 (1992) must be considered with respect to the request for the indication of provisional measures. In the present case, the Applicant has used a remedy open to every State wishing to request of the Court the legitimate protection of its right to pass judgment. The adage una via electa does not apply when it comes to governing two rights of action which are different in nature, namely, one before the Court and the other in the Security Council. In the judicial field, it is the judicial course, based upon international law, which prevails in case of conflict.

7. For these reasons, the Court was in my view empowered to indicate provisional measures for the protection of the rights of all the Parties, rights which were under threat of disappearance. The duty to co-operate and afford legal assistance laid down by the Montreal Convention provided the Court with a suitable framework for determining the object of the appropriate measures. Hence, the request for the Court to indicate provisional measures was well founded, Security Council resolution 731 (1992) notwithstanding.

II. The fundamental change in the legal circumstances

8. The adoption of the decision to impose sanctions, which are the subject of Security Council resolution 748 (1992), is a given whose effects, under Articles 103 and 25 of the United Nations Charter, could not be ignored by the Court. The absence of action or objection, with respect to [p 74] this decision by one of the principal political organs of the United Nations did not prevent the Court from noting that the first paragraph of the resolution deprived of all effect the provisional measures that the Court might have ordered with respect to all Parties to the dispute. The fundamental change in the legal circumstances since the filing of the Application, without there being any change in the factual circumstances of the case, prevented the Court, the principal judicial organ, from exercising its legal function to settle the dispute between the Parties to the full extent of its powers.

III. The proprio motu indication of provisional measures in general

9. Although there is no doubt that the adoption of resolution 748 (1992) means that the Court can no longer indicate provisional measures on the basis of the submissions in the request, provisional measures were a possibility under Articles 41 of the Statute and 75 of the Rules concerning the power to indicate proprio motu provisional measures. The development of the case-law concerning reference to the above-mentioned provisions is bound up with the relationship between the two terms in the duality: right of the Parties/jurisdiction of the Court. Prior to 1972, priority was granted to questions of jurisdiction, so that the Court interpreted its powers very restrictively. But since the Order for provisional measures the Court made in the Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) case, the terms of the problem have altered. I quote from that Order:

"The Court need not, before indicating them [provisional measures], finally satisfy itself that it has jurisdiction on the merits of the case ... it ought not to act under Article 41 of the Statute if the absence of jurisdiction ... is manifest." (I.C.J. Reports 1972, p. 15, para. 15.)

Limiting consideration of the question of jurisdiction to its prima facie aspect at the stage of requests for provisional measures has led the Court to pay greater attention to the circumstances of the case. The Order of 10 January 1986 for provisional measures in the Frontier Dispute case thus formally marks the development of a practice of the Court described in the following terms:

"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.)

This method of analysis embracing the totality of the circumstances was [p 75] enunciated in the Order for provisional measures made on 10 May 1984 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) as follows:

"Whereas by the terms of Article 41 of the Statute the Court may indicate provisional measures only when it considers that circumstances so require to preserve the rights of either party." (I.C.J. Reports 1984, p. 180, para. 27.)

Since

"Whereas the Court has available to it considerable information concerning the facts of the present case, including official statements of United States authorities; 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 provisional measures, but cannot make definitive findings of fact, and the right of the respondent State to dispute the facts alleged and to submit arguments in respect of the merits must remain unaffected by the Court's decision." (Ibid., p. 182, para. 31.)

The Court concluded as follows:

"Whereas in the light of the several considerations set out above, the Court finds that the circumstances require it to indicate provisional measures, as provided by Article 41 of the Statute of the Court, in order to preserve the rights claimed" (see Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, pp. 17-18; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, ibid., pp. 35-36.) (Ibid., p. 186, para. 39.)

One is therefore inclined to wonder whether the appeals that the Court addresses to the Parties henceforward can only be made in the context of measures related to provisional measures which have been indicated.

10. However, in the light of the relevant holding in the Passage through the Great Belt (Finland v. Denmark) case, it is clear that the reply must be negative:

"Whereas, as the Permanent Court of International Justice observed, and the present Court has reiterated,

'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; as 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, P.C.I.J., Series A, No. 22, p. 13; see also Frontier Dispute, I.C.J. Reports 1986, p. 577, para. 46);[p 76]

whereas, 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. Rep orts 1991, p. 20, para. 35.)

Indeed, by the Order of 29 July 1991, while rejecting provisional measures, the Court invited the parties to negotiate. The Court's appeal to the parties may be subject to criticisms stemming directly from a strict analysis of the concept of judicial function, but the exercise of the judicial function is surely a dynamic part of a wider fundamental obligation, as the following quotation indicates:

"Article 1

The Purposes of the United Nations are:

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 for the suppression of acts of aggression or other breaches of the peace, and 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." (Article 1 of the Charter of the United Nations.)

In the light of these observations, the reasons for the Court's concern to ensure that the dispute does not become aggravated or degenerate into conflict become clear. In the two cases referred to, it was armed actions which constituted the factual circumstances. Hence, proprio motu , the Court pronounced not only on the wisdom of an appeal it in fact made but also on the extrajudicial forms that the settlement of the dispute might take.

11. In the context of the present case, the circumstances were a source of much greater concern, owing to the direct reference to Chapter VII of the Charter. The question of the opinion of the Security Council was no longer limited to a dispute between the Parties in contention, but concerned the collective security of all States and all peoples. In my view, this new dimension did not permit the Court to ignore the very object of the proceedings to settle the disputes and limit itself to a passive approach to its judicial function. It follows that the Order should refer to the characterization made by the Security Council and draw attention, even in the context of resolution 748 (1992), to general obligations with respect to conduct that tend to limit the aggravation of the dispute.

12. For these reasons, in my opinion, the Court should have pronounced on the merits of the request, the object of which has disappeared owing to the effects of resolution 748 (1992), and should also have acknowledged its inability to rule owing to supervening circumstances external to the dispute and subsequent to the filing of the Application, at the same time calling on the Parties to avoid all escalation. This solution, which although uncomfortable nevertheless accords with the description of the development of the proceedings, seems to me a useful one. For over [p 77] and above the present dispute between the Parties, what is at issue here is the right of all States parties to the Montreal Convention and concerned with the suppression and prevention of terrorism against aircraft and the safety of air travel. Also, the new elements in international relations call for greater clarification of United Nations law on the one hand as regards the line of demarcation between the fields respectively covered by Chapters VI and VII of the Charter, as indicated by the work of the General Assembly's Sixth Committee (forty-fifth session) and, on the other hand, a new characterization of situations from the standpoint of the relevant provisions of the Charter. Indeed, as the Court has observed:

"The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment." (Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 64.)

(Signed) Raymond Ranjeva. [p 78]


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.

It is not necessary 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 Kingdom 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 seised 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 79]

"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 Kingdom by surrendering to her the two suspects in Libya, the Application of Libya seeks the co-operation of the United Kingdom 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 80]

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 (Austral ia 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 Kingdom 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 81] 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 Kingdom 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 States of America 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 82]

(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 Kingdom, as the locus of the incident, could establish jurisdiction over the offences under both general international law and also under the 1971 Montreal Convention. 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." [p 83]

The Respondent forcefully argues that the Applicant failed to exhaust all the stages of negotiation and arbitration before making her Application 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 comment of the United Kingdom on this issue, when Sir David Hannay, the then President of the Security Council observed:

"The letter dated 18 January concerning a request for arbitration under Article 14 of the Montreal Convention is not relevant to the issue before the Council. The Council is not, in the words of Article 14 of the Montreal Convention, dealing with a dispute between two or more Contracting Parties concerning the interpretation or application of the Montreal Convention. What we are concerned with here is the proper reaction of the international community to the situation arising from Libya's failure, thus far, to respond effectively to the most serious accusations of State involvement in acts of terrorism."

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 cases (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 [p 84] 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 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 expanded 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. Respondent's brilliant argument elaborated on this matter in extenso. The United Kingdom's point 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[p 85] 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 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 [p 86] 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 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 joint statement dated 27 November 1991, S/23307 was issued by the Respondent and the United States which demanded thus:

"Following the issue of warrants against two Libyan officials for their involvement in the Lockerbie atrocity, the Government demanded of Libya the surrender of the two accused for trial. We have so far received no satisfactory response from the Libyan authorities.

The British and American Governments today declare that the Government of Libya must:

-surrender for trial all those charged with the crime; and accept complete 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 are conveying our demands to Libya through the Italians, as our protecting power. 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 [p 87] "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 Kingdom, 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 out against Pan American flight 103 and Union de transports aeriens flight 772 ..." (Footnote references omitted.)

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 (1992) on the Court's authority to indicate interim measures? It has been argued that resolution 731 (1992) 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 (1992), it is my humble opinion and conclusion that it in no way [p 88] impedes the Court's authority to indicate the interim measures requested by Libya.

Resolution 748 (1992) 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 (1992) 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 (1992) in light of the provisions of Article 25 and Article 103 of the Charter. Article 25 enjoins Members to "respect and carry 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.) [p 89]

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.'

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 [p 90] 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 specifically 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 Kingdom and the United States 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. [p 91]

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, 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 underlined 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 [p 92] 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 Kingdom in her observation of 7 April 1992 submits:

"Resolution 748 imposed legal obligations upon both of the Parties to the present proceedings, which continue to subsist. Under the system of the United Nations Charter (in particular Articles 25 and 103), should it be claimed that those obligations are in conflict with obligations under any other international agreement, the obligations imposed by the resolution, being obligations under the United Nations Charter, prevail."

As already indicated, the Respondent 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 the Court. In addition, it is invariably the inherent [p 93] 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 the 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 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 the 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 94]


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 95]

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 96] 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 97]

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 98] 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 99] 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 100]

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 101] 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 [p 102] decisions of the Security Council since, according to its wording, they agree to accept and carry out 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 103] 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 104] 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 105]

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 106] 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 107] 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 108] 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 109] 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 110] 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 111] 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 112] 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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