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III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.10. Provisional Measures
3.10.2. Questions of Procedure

¤ Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya / United Kingdom),
Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 3

[p. 48 D.O. Bedjaoui 1] 31. ... 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, 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" (Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18; 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 measures 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.

[p. 88 D.O. Ajibola 2] 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.

[p. 91 D.O. Ajibola 3] 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.

[p. 110 D.O. El-Kosheri 4] 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".

1Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 158.
2Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 193.
3Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 196.
4Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 215