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 |
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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".
1 | Cf. 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. |
2 | Cf. 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. |
3 | Cf. 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. |
4 | Cf. 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 |