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World Court Digest



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

¤ 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

[pp. 14-15 1] 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;
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 pre-judges 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.

[pp. 109-110 D.O. El-Kosheri2] 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. On the contrary, irreparable prejudice to Libya 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.

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, pp. 126-127.
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. 214-215.