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