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III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.10. Provisional Measures
3.10.3. Provisional Measures and Jurisdiction

¤ 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. 18 Decl. Oda 1] 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.

[p. 37 D.O. Bedjaoui 2] 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. 179, para. 24).

Such is the case here and the Court is prima facie competent.

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. 130.
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. 147.