| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.1. | General Questions |
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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
[pp. 39-40 D.O. Bedjaoui 1] 13. The Court indicates provisional
measures only to the extent that the rights recognized prima facie are
threatened with disappearance. In the present case it does not appear necessary
to dwell at great length on the irreparable nature of the prejudice that would
result from the disappearance of these rights before the Court's decision on the
merits. If the Applicant State is subjected to coercive measures, irrespective
of their nature, with a view to bringing about its consent to the extradition of
its nationals, notwithstanding that express provisions of its constitution or
its laws prohibit it from doing so, can this mean anything other than that it
has been compelled to waive a right recognized prima facie and that it has been
forced to violate its own legislation? It is therefore clear that if this right
is not protected by provisional measures, the possibility that it may disappear
purely and simply cannot be rejected, so that, from this viewpoint, the
prejudice would be irreparable in that the right that has been lost could not
thereafter be restored. The threat of disappearance of this right was so real
that it subsequently became a reality with the adoption of resolution 748
(1992), which in effect put an end to it!
14. As regards the question of urgency, which is another element the
case-law of the Court traditionally takes into account in deciding whether or
not to indicate provisional measures, it is abundantly clear that this urgency
does exist in the case in point. Libya is asked to reply "immediately",
or "without any further delay" to the requests of the two Respondent
States, particularly as regards the extradition of its nationals.
15. On the basis of all the foregoing, I have reached the conclusion that
all the conditions exist in the present case for the Court to indicate
provisional measures. There is no doubt that this power, which the Court enjoys
under Article 41 of its Statute, is wholly discretionary and that the Court must
undertake an independent assessment of the "circumstances" in order to
ascertain whether they "require" the indication of provisional
measures. But this examination is anything but arbitrary. If the case-law has
gradually established the criteria and conditions which have to be fulfilled,
here is the very proof that its appreciation does not possess this unpredictable
and subjective character.
And even supposing the requests of the Applicant State still seemed
imprecise, it is for the Court to indicate such provisional measures as it may
deem to be more precise and more in conformity with the requirements of the case
and the needs of the circumstances. Article 75, paragraph 2, of the Rules of
Court authorizes the Court to "indicate 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". This Article therefore gives
to the Court very broad scope, which, in this case, might even have extended to
ordering the Applicant State to place the two presumed authors of the offence
under the provisional authority and custody of a third State, of an
international or regional organization, or even, why not, under the authority of
the Court...
[p. 46 D.O. Bedjaoui 2] 27. ... This means that the situation is,
in my view, one that must be summed up as follows: on the one hand, I consider
that the rights alleged by Libya do exist prima facie and that all the
conditions normally laid down by the Court for the indication of provisional
measures have been met in this case, so that those rights may be preserved in
accordance with Article 41 of the Statute of the Court. Moreover, it is on this
point that I have reservations about the two Orders of the Court - even though
the Court, in its statement of reasoning, does not completely set aside the
possibility of indicating provisional measures, judging from paragraph 40 of the
Order ("whatever the situation previous to the adoption of that resolution
[i.e., 748 (1992)]"). However, from another standpoint, Security Council
resolution 748 (1992) has annihilated those rights of Libya, without it being
possible for the Court, in this phase of provisional measures or, in other
words, of a preliminary examination prima facie, to take it upon itself to give
a premature decision on the substantive issue of the constitutional validity of
that resolution, so that the resolution benefits from a presumption of validity
and must be considered prima facie as both lawful and binding 3. I am
accordingly in agreement with the majority of the Court on this second point.
[pp. 76-77 D.O. Ranjeva] 11. In the context of the present case, the
circumstances were a source of much greater concern, owing to the direct
reference to Chapter VII of the Charter. The question of the opinion of the
Security Council was no longer limited to a dispute between the Parties in
contention, but concerned the collective security of all States and all peoples.
In my view, this new dimension did not permit the Court to ignore the very
object of the proceedings to settle the disputes and limit itself to a passive
approach to its judicial function. It follows that the Order should refer to the
characterization made by the Security Council and draw attention, even in the
context of resolution 748 (1992), to general obligations with respect to conduct
that tend to limit the aggravation of the dispute.
12. For these reasons, in my opinion, the Court should have pronounced on
the merits of the request, the object of which has disappeared owing to the
effects of resolution 748 (1992), and should also have acknowledged its
inability to rule owing to supervening circumstances external to the dispute and
subsequent to the filing of the Application, at the same time calling on the
Parties to avoid all escalation. This solution, which although uncomfortable
nevertheless accords with the description of the development of the proceedings,
seems to me a useful one. For over and above the present dispute between the
Parties, what is at issue here is the right of all States parties to the
Montreal Convention and concerned with the suppression and prevention of
terrorism against aircraft and the safety of air travel. Also, the new elements
in international relations call for greater clarification of United Nations law
on the one hand as regards the line of demarcation between the fields
respectively covered by Chapters VI and VII of the Charter, as indicated by the
work of the General Assembly's Sixth Committee (forty-fifth session) and, on the
other hand, a new characterization of situations from the standpoint of the
relevant provisions of the Charter. Indeed, as the Court has observed:
"The political character of an organ cannot release it from the
observance of the treaty provisions established by the Charter when they
constitute limitations on its powers or criteria for its judgment." (Conditions
of Admission of a State to Membership in the United Nations (Article 4 of
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 64.)
[pp. 92-93 D.O. Ajibola 4] However, care must be taken that
pronouncements, indications, orders and judgments of the Court be given in
accordance with international law and one need not emphasize this. (Art. 38 (1)
of the Statute of the Court.) In this case, the Court has the power to pronounce
on the provisional measures I have suggested, in accordance with the provisions
of Article 75 of the Rules of Court. In addition, it is invariably the inherent
power of the Court to grant such provisional measures under customary
international law.
In conclusion, I believe that the Court should deny Libya's request for
interim measures, but should independently apply the provisions of
Article 75 of the Rules of Court to prevent further escalation, aggravation or
extension of the dispute pending judgment on the merits.
| 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. 149-150. |
| 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. 156. |
| 3 | Unless one supposes that resolution 748 (1992) has as its object, or
effect, not to withdraw a right from an Applicant State, but to prevent the
exercise, by the Court itself, of the judicial function with which it has been
invested by the Charter, in which case one might be led to ponder seriously over
the lawfulness of that resolution, even at this stage of provisional measures.
It would, indeed, be manifestly incompatible with the Charter for an organ of
the United Nations to prevent the Court from accomplishing its mission, or for
it actually to place the Court in a state of subordination which would be
contrary to the principle of separation and independence of the judicial from
the executive power, within the United Nations. |
| 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. 197. |
