Non- Corrigé
J.ARCHiVÈSI
--- ......., "";.~~..,:.&j;;ft>:4!?:m~... Uncorrected
lnter.aatiaaal Court
of Justice CR 9213
T11BBAGUE
Cour internationale
YBAll 1992 de Justice
LA ll&.YX
... Public sitting
~..
held on rlmrsday .36 llacch 1991. at 3 P·•·. at the Peace Palace.
Vice-President Oda. presiding
in the case concerning Questions oE Interpretation and Application
of the 1971 Montreal Convention arising
fra- the Aerial Incident at .l.ockerbie
Request Eor the Indication of Provisional lleasures
(Libyan Arab Ja-ahl.riga L United ICingdo.t)
in the case concerning Questions of Interpretation and Application
oE the 2971 Jlontrea.Z Convention arisi.ng
froa· the Aerial Incident at .l.ockerbie
Request. for the Indication oE Provisional .Measures
(Libyan Arab JlUIIIBhiriga L United States of .a-rica)
VBRBATIMRECORD
AlUDΠ1992
Audience publique
-~ tenue le jeudi 26 aars 299.3.. à 15 heures. au Palais de la Paiz.
sous la présidence de If. Oda. Vice-Président
en l'affaire relative à des Questions d'interprétation et d'application
de la convention de Montréal de 1971 résultant
de 1 'incident aérien de Loclrerbie
Deaande en indication de aesures conservatoires
(JlUIIIBhiriya arabe libyenne c. Etats-Unis d'AErique)
en l'affaire relative à des Questions d'interprétation et d'application
de la convention de Montréal de 1971 résultant
de 1 'incident aérien de Lor:lŒrbie
(JlUIIIBhiriya arabe libyenne c. Royaume-Uni)
Demande en indication de .esures conservatoires
COMPTE2ERDU
OOOlC - 2 -
Present:
Vice-President Oda, Acting President
Judges Sir Robert Jennings, President of the Court
Agohs
Schwebel
Bedjaoui
lU
Ivens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeram.antry
Ranjeva
Ajibola
Judge ad hoc El-Kosheri
Registrar Valencia-Ospina
•
•
OOOlC - 3-
Présents:
M. Oda. Vice-Président de la Cour, faisant fonction de Président
Sir Robert Jennings. Président de la Cour
MM. Lachs
.. i Ago
Schwebel
Bedjaoui
Ni
Evens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeram.antry
Ranjeva
Ajibola. juges
M. El-Kosheri, juge ad hoc
M. Valencia-Ospina, Greffier
OOOlC - 4- .
rhe Govern8811t of the Ll.bg1m Arab Jaaslùrlya will be represented bg:
H. E. Mr. Al Faitouri Sb. Plobamed, Secretary of the People's Office
of the Socialist People's Libyan Arab Jamahiriya in Bruxelles,
as Agent;
Mr. Abdelrazeg El-Murtadi Suleiman, Professor of Public
International Law at the Faculty of Law, Benghazi, •·..
Mr. Abdulhamid M. Raeid, Adocate Before Supreme Court,
as Counsel;
Mr. Ian Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy,
as Counsel and advocate;
Mr. Eric David,
as Counsel.
The Governaent oE the United States oE .a-erica wlll be represented by:
The Honorable Edwin D. Williamson, Legal Adviser of the Department
of State,
as Agent and Counsel;
Mr. Alan J. Kreczko, Deputy Legal Adviser, Department of State,
as Deputy Agent and Counsel;
Mr. Charles N. Brower, White & Case,
Mr. Bruce C. Rashkow, Assistant Legal Adviser, Department of State, •
Mr. Jonathan B. Schwartz, Assistant Legal Adviser, Department of
State,
Counsel and Advocates;
Mr. Robert K. Harris, Départment of State,
Mr. Robert A. Kushen, Départment of State,
Mr. D. Stephen Mathias, Legal Attache, United States American .··
Embassy,
Mr. Bryan Murtagh, Départment of Justice,
Ms. Lucy F. Reed, Legal Counselor, United States American Embassy,
Attorney-Advi.sers.
OOOlC - 5 -
:Le GouveZ"De.ant de la:JUJBirlriya arabe libyenne sera représenté par :
s. Exe. Al Faitouri Sb. Mohamed, secrétaire du bureau populaire de
la Jamahiriya arabe libyenne populaire et socialiste à Bruxelles,
comme &gent;
M. Abdelrazeg El-Murtadi Suleiman, professeur de droit international
publie à la faculté de droit, Benghazi,
M. Abdulhamid M. Raeid, avoeat à la Cour suprême,
co.IDIIconseils;
M. lan Brownlie, Q.C.,
M. Jean Salmon,
M. Eric Suy,
comme conseils et avocats;
Mr. Eric David,
comme conseil.
..
Le Gouverne.ent des Eta.t.s-Qnis d•A.érique sera représenté par :
L'honorable Edwin D. Williamson, conseiller juridique, département
d'Etat,
agent et conseil;
M. Alan J. Kreczko, conseiller juridique adjoint, département
d'Etat,
agent adjoint et conseil;
M. Charles N. Brower, White & Case,
M. Bruce C. Rashkow, assistant du conseiller juridique, département
d'Etat,
M. Jonathan B. Schwartz, assistant du conseiller juridique,
département d'Etat,
conseils et avocats;
M. Robert K. Harris, département d'Etat,
~ .
. M. Robert A. Kushen, département d'Etat,
M. D. Stephen Mathias, attaché juridique, ambassade des Etats-Unis,
M. Bryan Murtagh, département de la justice,
MmeLucy F. Reed, conseiller juridique, ambassade des Etats-Unis,
avocats-conseillers.
OOO!C - 6 - -·
rhe Unlted llingdŒi oE Great Britain and llorthern Ireland will be
reprEt$Emted bg:
Mr. F. D. Benoan, C.M.G., Legal Adviser to the Foreign and
CommonwealthOffice,
as Agent;
.:)
Mrs. Wilmshurst, Legal Counsellor in the Foreign and Commonwealth
Office,
as Deputy Agent;
Mr. Alan Rodger Q.c., Solicitor General of Scotland,
Ms. Rosalyn Higgins, Q.C.,
Mr. Christopher Greenwood, Barrister-at-Law,
as Counsel;
Mr. Patrick Layden,
Mr. NormanMcFayden,
as Advisers.
'
OOOlC - 7· -
;I.eGouvenJEŒBDt du Royau.e--Uni sera représenté par :
M.F. D. Berman, C.M.G., conseiller juridique du ministère des
affaires étrangères et du Commonwealth,
co.IIDDegent.;
M. Mme E. s. Wilmshurst, conseiller juridique au ministère des
affaires étrangères et du Commonwealth,
comme agent. adjoint.;
M. Alan Rodger Q.C., Solicitor General d'Ecosse,
MmeRosalyn Higgins, Q.C.,
M.Christopher Greenwood, avocat,
comme conseils;
M. Patrick Layden,
M. NormanMcFayden,
comme conseillers.
OOOlC - 8 -
The ACTINGPRESIDENT: Please be seated. The Court meets now to
hear the presentation of the United Xingdom in the case brought against
the United Kingdom and I call upon Mr. Berman, Agent for the
United JCingdom.
Mr. BERMAN:Mr. President, Members of the Court. May it please the
Court, I represent the United Kingdom of Great Britain and Northern
Ireland in these proceedings. Ms. Elizabeth Wilmshurst is the
Deputy Agent.
It is an honour for me to be appearing in this capacity before the
Court. The high respect in which the United Xingdom holds the system for
the judicial settlement of international disputes, and this Court in
particular, needs no further demonstration. It is attested by the
United Kingdom's acceptance of the compulsory jurisdiction under
Article 36 of the Statute continuously since 1946 and before that for
many years the compulsory jurisdiction of the Permanent Court of
International Justice, and by the United Kingdom's aeceptance of over
.90 compromissory clauses in its bilateral and multilateral treaty
relations, whieh confer jurisdiction on the Court. It may therefore seem
paradoxieal that the United Kingdom has not appeared as a party in
contentious proceedlngs before this Court sinee 1974. This cireumstance
nevertheless makes it a special honour for me to do so today.
May I take this opportunity to express in open Court my Government's
congratulations and good wishes to His Excellency Prince Bola Ajibola, {
who took his seat as a Member of the Court earlier today?
Mr. President, these are interloeutory proceedings and it is not my
intention to detain the Court for long. I would like, with permission,
to introduce counsel who will appear for the United Kingdom and to
0022c/CR3/Tl/cw - 9 -
;indicate how the oral argument will be divided between them. To my
~mm eft disiMr.aAlan Reodger, Q.C., of the Scottish Bar, and who
holds the office of Solicitor General for Scotland. Next to hlm is
Professer Rosalyn Biggins, Q.C., of the English Bar and Professer of
.International Law at the University of London. Next to her again is
Mr. Christopher Greenwood, of the English Bar, Fellow and Director of
Studies in Law at Magdalene College, Cambridge. The oral exposition for
ithe United Kingdma will be divided_into four parts: the Solicitor
General will describe the factual circumstances, and will then deal with
~ Court'& vont of jurisdiction ta hear the Libyan Application. He will
1e followed by Professor Biggins, who will show that Libya's request for
J
interim measures of protection does not meet the criteria laid dawn in
the Statute and developed in the jurisprudence of the Court; and that
the measures sought by Libya are in any event inappropriate or improper,
and should not be granted.
In brief, Mr. President, Members of the Court, we shall contend:
First, that Libya's Application is manifestly premature, having
regard inter alia to the six month time-limit prescribed by Article 14
9f the Montreal Convention, and that the Court should not accordingly
entertain the request for provisional measures. The United Kingdom
reserves the right to lodge a forma! preliminary objection to the
jurisdiction of the Court later in the proceedings, at the appropriate
moment.
Second, that interim measures are an exceptional remedy which is
only granted if necessary to protect rights which are in dispute before
the Court, but that the interim measures sought by Libya do not meet this
test, in particular because the so-called "rights" which Libya purports
to claim under the Montreal Convention are illusory and do not require
protection.
0022c/CR3/Tl/cw - 10-
Xhird, that Libya's Application, wbile purporting to enjoin action
by the United Kingdom against Libya, ia in fact directed at interfering
with the exercise by the Security Council of its functions and
prerogatives under the United Rations Charter.
Mr. President, a brief outline of the way the argument will be . '
developed has been made available to Members of the Court and to the
opposins Party and 1 would now like to·call upon Mr. Rodger.
The ACTINGPRESIDENT: Thank you, Mr. Berman. I now call upon
Mr. Rodger, please.
Mr. RODGER: Mr. President, Members of the Court. lt is for me a
very great honour to appear today before you on behalf of the
United Kingdom. As our Agent, Mr. Berman, has just explained,
Professor Higgins and I shall both be addressing you in support of the
United Kingdom's case. As indeed Mr. Berman has indicated, 1 shall
develop the first of the United Kingdom's three basic contentions, but
before doing so I must first explain the context within which the Court
comes to be considering this matter today. 1 shall give a brief account
of the disaster, of the criminal investigation which followed and of the·
resulta of that investigation leading to the charges being brought
against two Libyan nationale last November. Finally by way of
introduction I shall outline some of the steps which have been taken by
the United Kingdom and others between the time when the charges were
brought and today.
1 start therefore with the bombing itself.
The bombing of Pan Am 103
On 21 December 1988, at approximately three minutes past seven in
the evening GMT,a Boeing 747 aircraft of Pan American Airways exploded
in flight over the small town of Lockerbie, in the south of Scotland.
0022c/CR3/Tl/cw - 11 -
:The aircraft crashed to the ground, killing all 259 passengers and crew
)on board and 11 residents of the town. The victime of this outrage
iincluded nationale of 21 countries in Europe, the Americas, Afriea and
Asia. Nineteen of them were ehildren.
'• The aircraft was registered in the United States and was travelling
as part of Flight PA 103 from Frankfurt in Germany to Detroit in the
United States, via London Heathrow and NewYork John F. Kennedy
~irports. The initial leg of the flight. from Frankfurt to London,
i
}feathrow, had been on a smaller Boeing 727 aircraft. At London Heathrow
l
~9 passengers from this smaller aircraft transferred to the Boeing 747
1
.'aircraft and joined up with a further 194 passengers. There were 16 crew
'
members on board the Boeing 747. The route of the aircraft from London
vas determined by weather conditions. While it would normally have
proceeded westwards on take-off, that evening, because of strong westerly
winds, the aircraft first headed in a northerly direction over England
and so into Scotland where the explosition occurred. Partly because of
the very high winds, wreckage from the disaster was scattered over
.· hundreds of square miles in the south of Scotland and the north of
'
1ngland.
l
The investigation and the facts disclosed
An international investigation was begun immediately and was based
at Lockerbie. British police officers from a number of police forces
were assisted in the investigation by agents of the United States Federal
Bureau of Investigation, The investigation was under the overall
direction of my colleague the Lord Advocate, the senior Law Officer for
Scotland and the head of the independent prosecution service in Scotland.
0022c/CR3/Tl/cw - 12 -
In Loekerbie itself it was directed by the Procurator Fiscal of
Dumfries, the Lord Advocate's local representative. But the investigaion
spread far beyond Lockerbie, and far beyond Scotland and the United
·Kingdom to reach many countries in different continents. Judicial,
prosecuting and investigative agencies from severa! countries co-operated .'
in this unprecedented inquiry.
In southern Scotland and northern·England, police officers combed an
area of 845 square miles, i.e., 2190 square kilometres, in their search
for items of significance to the investigation. In the course of the
investigation, over 4,000 items were retained for examination or as
evidence. Similarly, in the course of enquiries thousands of people were
interviewed and more than 15,000 statements were taken.
After only a few days of enquiries, forensic, scientific and
technical examination established that the explosion on Pan Am 103 had
been caused by the detonation of an improvised explosive deviee utilizing
high performance plastic explosive.
Thereafter, from detaiied examination of the wreckage and debris
experts were able to establish not only in which part of a particular
cargo hold of the aircraft the explosion had oecurred, but also the
position of the explosive deviee within one particular luggage
container. As a result of further work the experts were able to pinpoint
the actual suitcase which bad contained the deviee and to establish the
nature of the deviee. It was a deviee constructed so as to be contained
within a radio cassette recorder and to be detonated by an electronic
'
timer. By further painstaking work the experts identified the other
contents of the suitcase which bad contained the explosive deviee. In
particular, they identifled a number of pieces of clothing from it.
0023c/CR3/T2/rmcb - 13 -
These pieces of clothing were subjected to further examination as a
result of which the investigators established scientifically that they
bad been both manufactured and sold in Malta.
By minute exam.ination of the remains of the electronic timer,
.- scientiste were able to show that it was one of a number of timers
'.
manufactured by a particular company in Switzerland. Further enquiries
were made, as a result of which there is evidence that this company
designed and supplied 20 of these timers. to the exclusive order o.f senior
officials of the Libyan Intelligence Services and that the timers were
4lt tested in conjunction with explosives in Libya.
The Members of the Court will note how the investigation started
from scientific work on fragments and items discovered after the bombing
and how this led both to the conclusion that events in Malta had played a
significant role and to the conclusion tht the Libyan Intelligence
Services bad been involved. Other evidence was obtained which pointed in
particular to the involvement of two individuals, Abdelbaset Ali
MohmedAl Megrahi and Al Amin Khalifa Fhimah, both Libyan nationale. For
instance, there is evidence that on 7 December 1988, in Malta, Megrahi
purchased the clothing which was later placed in the suitcase along with
the bomb. There is also evidence that Megrahi travelled to and from
Malta under a false identity and that on 20 December 1988 he and Fhimah
introduced into Malta a suitcase matching the description of the one
which contained the bomb. Finally, there ls evidence that these very men
" had in their possession and under their control in Malta high performance
. plastic explosive.
Th.e investigation which I have described which uncoV'ered this
evidence was in fact the most extensive criminal investigation ever
undertaken into a single crime. It was on the basis of the resulta of
0023c/CR3/T2/rmcb - 14 -
this massive investigation and on no other basie - and I stress this -
that the Lord Advocate was able, on 13 Novemer 1991, to seek and obtain
from an independent judge, warrants for the arrest of Kegrahi and Fhimah
on charges of conspiracy and murder, whieh are both crimes at commonlaw
0 "
in Scotland and of a charge of contravention of Section 2 of the United
Kingdom Aviation Seeurity Act 1982. The Scottish Courts have.
jurisdiction, of course, on the basie that they are the courts of the
locus of the offences. That basie of jurisdiction is one of the most
fundamental recognized in customary international law and bas nothing to
do with the Montreal Convention.
The petition which sets out the charges on which the warrants were
granted is before you, it is the Document No. 1 in the bundle of
documents of the United Kingdom (Doc. No. 1). So, also before you is a
detailed statement of facts in support of the charges (Doc. No. 2).
Nowit is important in the eontext of the present proceedings to
notice that the charges against the two accuaed, Megrahi and Fhimah,
proceed on the basie, for which there is evidence, that they were both
officers of those very Libyan Intelligence Services which were involved
in the purchase and testing of the timers. Megrahi and Fhimah were also
closely connected with the State-owned Libyan Arab Airlinea. Megrahi was
Head of Security of the airline throughout 1986 and was, from
1 January 1987, Director of the Centre for Strategie Studies in Tripoli,
a part of the Dlrectorate of Information, which is in turn part ·of the
Directorate of the External Security Organization of Libya. Fhimah, for
his part was, until shortly before the attack on Lockerbie, Station
Manager of Libyan Arab Alrlines at Luqa Airport in Malta and, indeed,
retained his airside pass until 31 December 1988. For all this there is
evidence.
0023c/CR3/T2/rmcb - 15 -
As I have said, arrest warrants for Megrahi and Fhimah were granted
on 13 November 1991. The following day, the Lord Advocate announced that
the warranta bad been granted and made the terme of the charges known
publicly. Simultaneously, the Acting Attorney General of the United
·States of America announced the issue of warrants there, following the
handing down of an indictment by the Grand Jury.
On the same day, copies of the charges and of the warrants, together
itith a statement of facts setting out in detail the basie of the charges,
were supplied to the Libyan·Government, through the Libyan Permanent ,
Representative to the United Nations in NewYork and, subaequently,
~hroug he Italian Embassy in Tripoli, the Italian Government being the
power protecting British interests in the absence of diplomatie relations
between the United Kingdom and Libya.
t
0023c/CR3/T2/rmcb - 16 -
These documents which the United Kingdom supplied to Libya explain
very elearly the allegations in the Seottish eriminal case, allegations
which the Lord Advoeate had formulated on the basis of his consideration
on the evidence obtained after almost three years of painstaking,
meticulous and cautious investigation. In particular on the basie of the .-
facts which I have outlined to you the elear allegation made in the
Charges is that this criminal act of bombing the Pan Am 103 was carried
out by Megrahi and Fhimah in pursuance of the purposes of the Libyan
Intellegence Services.
We understand that these services are closely related to the
criminal justice system in Libya and have influence on the function of
the Libyan courts. Again this is not said lightly or without a basie of
fact. For instance, one of the people named in the indictment raised by
the United States, and named also in the statement of facts as having an
involvement in matters relevant to the crime, and in partieular
involvement in obtaining the timers, that person bas in the course of the
last four years held signifieant postions in the Libyan criminal justice
system, including the post of Minister of Justice.
Events following investigation
Mr. President, Members of the Court, I have felt it necessary to set
before the Court the course of the investigation and some of the
resulta. This bas taken time, but I believe that it is important that
the Court sbould appreciate.that, in making the serious allegation which
he does about the involvement of the Libyan authorities in this criminal
act, the Lord Advocate as the prosecutor has not proceeded on rumour or
speculation but on the resulta of a long investigation based on
scientific analyste and on time-consuming police enquiries. Similarly it
is against that background that the United Kingdom bas sought the
0024c/CR/3/T3/mcs/mj - 17 -
.surrender of the two accused for trial. It is against that background
~.als tat the United ICingdom insista that there could be no question of
~the demanda of justice being met by any trial of these men in Libya.
Unfortunately, it cannet even be said that this involvement of the
Libyan Government in an act of terrorism is an isolated incident. On the
contrary, over a number of years there have been various incidents in
.which the Governm.ent bas been involved. I shall not at this stage
jenumerate these incidents though I am ready.to give further details if
lthe Members of the Court so wish. Rather I think that is sufficient if I
~ention very briefly activities which have been directed against the
1
United ICin&dom. I can cite the murder of a woman police constable in a
public street in London in 1984, a murder carried out by abots fired from
the very premises of the Diplomatie Mission of the State of Libya by a
member of staff of that mission. It was as a result of this incident
that diplomatie relations were broken off and have not been restored.
Above all there bas been publicly expressed and active support for the
Provisional IRA, a body responsible for repeated terrorist attacks in the
United Kingdom and elsewhere. The practical support given by the Libyan
Government included supplying and shlpping arma and explosive for the use
of the Provisional IRA ln thelr acta of terrorism.
The Court need not simply accept what I say about this matter, for
the head of the Libyan State, Colonel Gadaffi, has himself admitted
Libya•s involvement with the IRA, as recently as 7 December-of las~·year
in an interview ln the newspaper Al Ahram, and again earlier this
month, on 2 March, in his address to the General People's Congress.
The involvement of the Libyan Government in the crime of Lockerbie
is therefore seeen by the United Kingdom Government as part of a pattern
of involvement in terrorism. So the United Kingdom Government bas
0024c/CR/3/T3/mcs/mj - 18 -
approached the matter with this in mind. Following the announcement of
Charges by the Lord Advocate on 14 November 1991, on the same day in
Parliament the Foreign Secretary called upon Libya to comply with the
Lord Advocate's demand that the accused be surrendered for trial in
..
Scot land.
No satisfactory response was received from Libya to these demanda
and so on 27 November 1991 the British and United States Governments
issued a declaration (A/46/827; S/23308) (Doc. 14) stating that Libya
must:
"- surrender for trial all those charged with the crime; and
accept responsibility for the actions of Libyan officiais
- disclose all it knew of the crime;
- and pay appropriate compensation.
At the same time a similar declaration was made by France in respect
of the bombing of the UTAFlight 772. Slmultaneously all three
Governments issued another statement in which they required that Libya
promptly commit itself to cease al1 forms of terrorist activities
.(Doc. 15).
When in due course the Libyan Government failed to respond
appropriately to the calls made upon it by the United Kingdom, the United
States and France, my Government therefore thought it right to take the
matter to the United Nations. As the Members of the Court will be avare,
the issue of terrorism has frequently been before the United Nations.
The General Assembly bas for many years had on its agenda an item, the
title of which begins "Measures to Frevent International Terrorism".
Terrorist operations auch as hijacking have been subjects for discussion
both in the General Assembly and in the Security Council, as well, of
course, as in other fora such as the International Civil Aviation
0024c/CR/3/T3/mcs/mj - 19 ~
Organisation. As long ago as 1970 the Security Council adopted a
Resolution (SCR 286) on hijacking and other interference in international
travel. It expressed grave eoncern at the threat to innocent civilian
••
lives and called all States to take all possible legal steps to prevent
any interference vith international civil air travel. In its Resolution
of 1989 (SCR 635) the Security Council eondemned all acta of unlawful
interference against the security of civil aviation and called on all
States to co-operate in measures to prevent acta of terrorism, including
those involving explosives.
So it was in the context of this frequently expressed General
Assembly and Security Council concern about terrorism and its effects
that the United Kingdom, the United States and France brought the subject
of the destruction of Pan Am 103 and UTAflight 772 to the United Nations.
On 31 Deeember 1991 the United Kingdom Permanent Representative
circulated the Lord Advocate's statement about the investigation
(A/46/826; S/23307) (Doc. 13) under the General Assembly item relating
to terrorism.
0024c/CR/3/T3/mes/mj - 20 -
It was put on the Security Council agenda. On the same day the Joint
Declaration of 27 November by the United Kingdom and the United States
about the bombing of Pam Am 103 was eireulated (A/46/827; S/23308)
..
(Doc. 14), as also was the Joint Declaration of the United Kingdom,
France and the United States on terrorism, also dated 27 November 1991
(A/46/828; S/23309) (Doc. 15).
The original demand for the surrender of the two accused bad been
putto the Libyans on 14 November,·aa I have already explained. Two
months passed without any effective reply to that demand. Libya did
indeed make communications of various kinda, which we shall deal with
later in our submissions. The communications did not however acknowledge
that the Libyan Government had been involved in terrorism or agree to
make the two ~ccused available for trial or agree to meet the
United Kingdom's other specifie demanda. Accordingly in January of this
year the United Kingdom, France and the United States began consultations
with other members of the Security Council on a draft resolution. On
18 January, while a draft resolution was under consideration, but before
·the debate on it in the Security Council, Libya addressed to the
United Kingdom what is now claimed to be a request that a dispute be
submitted for arbitration in terms of Article 14(1) of the Montreal
Convention. On 21 January the Security Council unanimously adopted
resolution 731 (Doc. 17). In the resolution ·the Security Council
reaffirmed its earlier resolutions on terrorist threats to international
aviation. The Council expressed its deep concern over the resulta of the
Lockerbie investigations and its determination to eliminate international
terrorism. It urged the Libyan Government to provide ..a full and
effective response" to the request of the three Governments.
0026e/CR3/T4/fac - 21 -
The United Kingdom Permanent Representative made clear at the
Security Council meeting on the adoption of the resolution that it was
.the United Kingdom Government's hope that Libya would indeed respond
..
fully, positively and promptly to the resolution; auch a response would
be indicated by Libya making the two accused available to the legal
authorities in Scotland or the United States, and with regard to the UTA
incident, by co-operating with the legal authorities in France. He also
made clear my Government's firm belief .that in the particular
circumstances of this case there could be no confidence in the
impartiality of the Libyan courts; it would not be sufficient to allow
these men to be made available for trial in Libya.
I pause to observe that it was a recurring theme of the speeches
made on behalf of the Applicant this morning that by asking for the
accused to be handed over the United Kingdom was somehow violating the
principle that their innocence was to be presumed until they bad been
found guilty.
It is certainly true that my colleague the Lord Advocate bas
sufficient evidence to justify charging these two men but if they are
handed over for trial in Scotland their guilt or innocence will be
!determined not by the Lord Advocate nor by the United Kingdom but by a
jury of 15 ordinary men and women. Again it was said, more than once
this morning, that Libya somehow had a right to try these men which it
was entitled as a matter of sovereignty to exercise and that if Libya
were not allowed to exercise it, this would in effect put an end to the
system of international law on terrorism built up in 10 Conventions.
Nothing, in my submission, could be further from the truth. The
objective of these Conventions is to institute a system to combat
terrorism not to promote the jurisdictional rights of one State over
0026c/CR3/T4/fac - 22 -
another. Nothing could more quickly reduce that fragile system of
Conventions to ruina than the ability of a State which is itself accused
of complicity in the acta of terrorism to defy the legitimate claims of
..
victim States by insisting on an illusory rigbt to try the suspects
itself.
But returning to the sequence of events, following on the adoption
of resolution 731 and pursuant to paragraph 4 of that resolution, the
Secretary-General's representative .undertook consultations with the
Libyan authorities. The result of those consultations was very confusing
indeed. An account may be found in two reports from the
Secretary-General, which are before you (S/23574 and S/23672; Docs. 19
and 20 respectively). I intend to return very shortly to the
difficulties vhich these documents present to anyone trying to discover
what are the Libyan intentions vith regard to the two accused. For the
moment I simply record that neither the resulta of these consultations
vith the Libyan authorities nor any subsequent actions of those
authorities gave evidence of a clear Libyan intention to eomply vith the
terme of Security Council resolution 731. The three Gover.nments have
accordingly been discussing vith the other members of the Security
Council a further decision by the Security Council directed at obtaining
the implementation of this resolution. Discussions among Council members
on the precise terme of that dcision are continuing even, indeed, as I
speak. Hovever, it is envisaged that any auch decision should, under
Chapter VII of the UNCharter, impose selective sanctions on Libya vith
the aim of securing compliance with resolution 731.
Mr. President, Members of the Court, as 1 turn now from outllning
the events vhlch have preceded the hearing today, I must first point out
that the United Klngdom bas bad dlfflculty ln understandlng Libya's
0026c/CR3/T4/fae - 23
application to this Court and its Request for Interim Measures in the
light of its stated position. Some at !east of our diffieulty stems from
what I ean only call the inconsistencies of Libya's position. Let me
..
give three examples.
In the first place Libya bas been inconsistent as to the nature of
the dispute. In its Application to the Court and in its Request for
Interim Measures, the Applicant refera to certain articles of the
Montreal Convention by virtue of whieh, it is;claimed, Libya is entitled
to try the alleged offenders. In bis speech to the Security Couneil
prior to the adoption of resolution 731, the Libyan Representative indeed
stated the view of his authorities that there was a dispute of a purely
legal nature between Libya and the three Governments. As auch, he said,
it was one which should not be considered by the Security Council. I
refer in particular to the passage in his speech on pages 12 to 16 of the
official English verbatim record of the Security Council proceedings,
which is before you (S/PV 3033; Doc. 18).
0026c/CR3/T4/fac - 24 -
But, Mr. President and Members of the Court, you also have before
you today a letter dated 13 March 1992 (Doc. 21) from Mr. Bisharri, the
Libyan Minister of Foreign Affaira in which he refera to the proceedings
..
before this Court as merely "complementary" to those in the Security
CouncU. Yet only four days later in a further letter (Doc. 22)
Mr. Bisharri reverts to the opinion that the whole matter consista of a
legal dispute which must be _referred to this Court. To malte matters
still more confused he goes on .to .say that the alternative is that the
whole dispute is a political one and should be resolved by political
means. It is plain in my submission that Libya is tmable even to define
the nature of the dispute, far lesa the precise issues allegedly in
dispute.
Wehave had great difficulty too in understanding what the Applicant
considera to be the rights under the Montreal Convention, which, it
claims, are the subject of the dispute. This difficulty is indeed not
suprising since, as we shall explain later, those so-called rights are
devoid of substance. But for the present I ask the Court to note that in
all its varied communications to the three Governments and to the
United Nations and in all its requests for various forma of co-operation,
the .first time that the Libyan Government actually mentions its so-called
rights under the Convention is in its request of 18 January 1992 to
arbitrate under the Convention (Doc.-16). -Until that date Libya was not
claiming any right under any international treaty. It is our submission
that at that late stage Libya only alighted upon the Montreal Convention
as an afterthought and in order to provide it with an argument to be
deployed first in the Security Council debate which took place only three
days later and now in the Court.
0025c/CR/J/T5/ah 25 -
The conviction that the Applieant is grasping at any argument,
however weak and however inconsistent with its previously stated
positions, is strengthened by reference to Libya's statements about the
basis of the jurisdiction upon which tt relies to prosecute the two
accused. Libya's original position was that it founded its jurisdtction
on a provision of the Libyan Penal Code of 28 November 1953 which gave it
jurisdiction over Libyan nationale who had committed offences abroad. I
refer, for instance, to the statement tssued by the Libyan Justice
Committee oan 18 November 1991 (Doc. 3), and to the message to the United
,- Kingdom Attorney General from the Libyan investigating judge, appended to
the Note Verbale of the Libyan Foreign Affaira Committee, dated
27 November 1991 (Doc. 5). In each of these documents, Libya founds on a
provision of its domestic law which has nothing whatever to do with the
Montreal Convention and which indeed existed long before the Montreal
Convention was even thought of. By contrast, when we turn to its
Application to this Court, we find that Ltbya purports to trace its
entitlement to try the two accused to Articles 5 (2) and 5 (3) of the .
Montreal Convention. In fact, as we shall show in more detail later, ·
Article 5 (2) bas nothing whatever to do with the matter and
Article 5 (3) is nothing more than a statement whtch preserves any
existing jurisdiction of the contracting States. Once again, therefore,
Libya has departed from its earlier publicly stated position and has, at
a late stage, contrived a specious argument to drag in the Montreal
Convention simply in order to try to bring this whole matter within the
)
jurisdiction of the Court.
Perhaps the most striking example of ineonsistency in Libya's stated
positions ta to be found, however, in the Applicant's statements about
the impossibility of extraditing the accused.
0025c/CR/3/T5/ah - 26 -
In its Application to the Court, at page 8, Libya states that
Article 493 (A) of the Libyan Code of Criminal Procedures prohibits the
extradition of Libyan nationale and that therefore there is no basie in
Libyan law or under the Montreal Convention for the extradition of the
accused. The same line vas taken in a letter dated 2 March 1992 from
Mr. Bisharri to the Secretary-General. In particular, he states that the
Libyan authorities could find nothing that would enable them to respond
to the requests made by these States~othe tran by violating the law.
The Libyan authorities cannat bypass this legal obstacle or violate the
rights of citizens protected by the law. /JIIr
Nowlet us turn to the further report by the United Nations
Secretary-General, dated 3 March 1992 (Doc. 10). In paragraph 4 of that
report, the Secretary-General records Colonel Qadaffi as saying that
while there are constitutions! obstructions to the handing over of Libyan
citizens, those obstructions might be overcome. Once that vas done, the
accused persona eould be handed over to France, Malta, any Arab country,
or even, in the event of some unspecified improvement in bilateral
relations, to the United States. Similarly, in a letter dated
27~Februa r992, wbich forma Annex I to the same report, Mr. Bisharri
envisages that the accused might be handed over under the
Secretary-General's persona! supervision to a third party, while
stressing that they should not be handed -over again.
Once more, we find Libya saying one thing at one moment and
something completely different when it suits its own purposes at another
time. Putting the matter shortly, contrary to what is implied by Libya
in its pleadings, there is plainly no insuperable difficulty under Libyan
0025c/CR/3/T5/ab - 27 -
law which will prevent the Libyan Government from surrendering the
accused for prosecution in Scotland or in the United States. Equally
plainly, there is nothing in the Montreal Convention to prevent it. All
that is lacking is a decision by the Libyan Government to take this step •
•
-. Mr. President, it would seem that recent events bear me out. The
last few days have seen the surprising offer, by Libyan representatives
abroad, that Libya was contemplating handing over the two accused to the
League of Arab States at its Beadguarters in Cairo, from where they would
be handed over to the United Nations Sectretary-General, who would in
titi turn, presumably, band them over to the judicial authorities of either
the United Kingdom or the United States of America for trial. It nov
seems that this offer bas fallen by the wayside. It was, however,
regarded seriously enough that the Arab League set up a committee,
including four Foreign Ministers and the Secretary-General, to travel to
Tripoli at Libyan invitation. ·It is no doubt a great pity that they
returned to Cairo yesterday morning empty-handed. Indeed, they might .
never have left home if the disavowal in the letter to the President,
·which vas read to you this morning, bad been known to them on Tuesday.
Mr. President, Members of the Court, what are we then to take from
this wriggling, from the twisting and turning by Libya? Surely the only
proper inference must be that Libya will say anything, however
inconsistent, which may help postpone the day when it will have to accept
responsibility for its actions. ,That is, ,z fear, the true purpose of the
Application to this Court and of today's Reguest for Interim Measures, to
the detail of which I now turn.
0025c/CR/3/T5/ah - 28 -
II. Bo potential juriadietion of the Court
In this part, the first submission of the United Xingdom is that
Libya bas failed to show a potential basie for the jurisdiction of the
Court. Although the relevance of jurisdiction at the provisional
measures stage was once the subject of much debate, the test is now
clearly established in the jurisprudence of the Court. As the Court bas
repeatedly stated, most recently in the case concerning Passage through
the Great Belt,
"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 merita of the
case, yet it ought not to indicate auch 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" (I.C.J. Reports 1991, p. 15, para. 14).
In the present case, the only basis for jurisdiction which has been
advanced is Article 14(1) of the Montreal Convention, which bas already
been quoted to the Court and which is of course before it. So that is
the only possible basie for jurisdiction. Note also how limited any auch
jurisdiction would be. The provision confera jurisdiction only in
respect of disputes eoncerning the interpretation or application of the
Montreal Convention, and nothing else. It is therefore a prerequisite of
this Court having jurisdiction that auch a dispute be shown to exist.
But while it is necessary that there should be a dispute, the
existence of a dispute is not by itself sufficient to found the Court's
jurisdiction. The provision on which Libya relies differa from the
jurisdictional provisions on which reliance bas been placed in most of
the provisional measures requests to come before the Court in that
Article 14(1) requires a State which wishes to bring auch a dispute
0027c/CR3/T6/cw - 29 -
before the Court to complete a number of essential steps before it can
refer the dispute to the Court. Looking at Article 14(1) you will see
that:
(1) the first step is that there must be an attempt in good faith to
resolve the dispute through negotiation. Only if the dispute
"cannat be settled through negotiation" can a State proceed to the
-next stage laid down by Article 14;
(2) the second step required by the Article is that the dispute be
submitted to arbltration at the request of one of the parties. The
parties are then given a period ln whiCh to agree upon the
organization of the arbitration;
(3) it is only if the parties are unable to agree upon the organization
of the arbitration "within six months from the date of the request
for arbitration", only then is there a power to refer the dispute to
the Court.
In their submissions this morning, counsel for Libya all but ignored
these provisions of Article 14(1) instead of trying to show that Libya
had complied wlth these three requirements, which I would stress are
essential preconditions of the Court having any basie for jurlsdiction ln
this case, instead of dolng that counsel for Libya sought to address the
completely different question of whether the Montreal Convention
conferred upon Libya jurisdiction over the two accused. That of course
la a question which relates to the merita of the Application that has no
relevance to whether or not Article 14(1) provldes a prima facie basle
for the jurisdiction for this Court on the Libyan Application.
Counsel for Libya also tried to fall back upon an argument that
there is a general duty to settle disputes by peaceful means. That
self-evident proposition cannot be employed as a substitute basis for the
0027c/CR3/T6/cw - 30-
jurisdiction of the Court if, as the United Kingdom submits, Libya has
failed to comply with the essential requirements imposed by Article 14(1)
then there can be no prima facie basis for the jurisdiction of the
C·ourt. It is to those requirements, therefore, that 1 turn, sin_ce they
•
must be examined in detail. ..
In summary, in this part of the argument, the United Kingdom submits
that, prior to filin.g its Application on 3 March, Libya manifestly failed:
(a) to establish or define a dispute falling within Article 14(1); or
(b) to comply with the further requirements of a provision in
Article 14(1).
I emphasize again that the cirtical 1 date in respect of both of these
submissions is the date on which the Application to this Court was filed.
A. Libya has failed to establish the existence of a dispute eoncerning
the Montreal Convention
The United Kingdom submits that Libya has failed to establish that
there existed, prior to 3 March 1992, a dispute between the Parties
concerning the interpretation or application of the Montreal Convention.
_The existence of auch a dispute, and a sufficient definition of the
issues in dispute, are fun.damental jurisdictional requirements under
Article 14.
Recause the United Kingdom does not believe the Montreal Convention
to be in issue, it has never raised with Libya questions regarding its
interpretation or application. The demanda made by the United Kingdom,
to which 1 have already referred, are based not upon the Montreal
Convention but upon Libya's wider international legal obligations. these
issues have now been considered by the Security Council, which has taken
action upon them by adopting resolution 731 urging Libya to make a full
and effective response.
0027c/CR3/T6/cw - 31 -·
What is in issue between Libya and the United Kingdom is the
implementation of Security Council resolution 731. But this is not a
matter whicb is a dispute concerning the interpretation or application of
the Montreal Convention.
If, therefore, Article 14(1) of the Montreal Convention is to
provide a prima facie basis upon which jurisdiction might be based in the
present case, it can only be because there exista a dispute between Libya
:and the United Kingdom regarding the interpre.tation or application of the
Convention, which is separate from and distinct from the questions
'
~ concerning the implementation of resolution 731.
In its recent opinion in the case coneerning the Obligation to
Arbitrate (I.C.J. Reports 1988 p. 12, para. 27), the Court confirmed
1
that "whether there exista a dispute is a matter for objective
determination" (a point which it bad made earlier in the case concerning
the Interpretation of Peace Treaties, I.C.J. Reports 1950, p. 74) and
it repeated the definition of a dispute laid down by the Permanent Court
in the Mavrommatis Palestine Concessions case, the definition being as
"a disagreement on a point of law or fact, a conflict of legal views·or
:of interests between two persona" (P.C.I.J., Series A, No. 2, p. 11).
In its opinion in the case coneerning the Obligation to Arbitrate
the Court also confirmed a passage from the Judgment in the South West
Africa cases, whieh is particularly apposite in the present case:
"It is not sufficient for one party to a contentious case
to assert that a dispute exista with the other party. A mere
assertion is not sufficient to prove the existence of a dispute
any more than a mere denia! of the existence of the dispute
proves its non-existence. Nor is it adequate to show that the
interests of the two parties to such a case are in conflict.
It must be shawn that the claim of one party is positively
opposed by the other." (I.C.J. Reports 1962, p. 328).
1
0027e/CR3/T6/ew - 32 -
But prior to its Application to the Court, Libya failed to identify
the existence, or to define the subject-matter, of any dispute between
itself and the United Kingdom under the Montreal Convention.
Between 14 November 1991 of last year, when the Lord Advocate made
•
his public statement regarding the issue of arrest warrants for the two .:
accused, between that date and 18 January 1992, when Libya wrote to the
United Kingdom Government suggesting arbitration (UN Doc. S/23441,
Doc. 16), Libya addressed a number of-communications to the
United Kingdom Government, to the United Nations Secretary-General and to
the President of the Security Council (see DS and 6 1 Kl-11). I refer
amongst others to Documents 3, 5, 6, 11 and 12 in the United Kingdom
bundle. Not one of these communications mentioned the Montreal
Convention.
As I have already pointed out, the very first time that Libya
referred to the Convention was in its letter of 18 January 1992. In it
Libya maintained that it had established its jurisdiction in respect of
the two suspects under Articles 5(2) and 5(3) of the Convention. Libya
also stated that it had referred the matter to its prosecuting
authorities in accordance vith Article 7 of the Convention and had called
upon the United Kingdom (amongst others) to co-operate but bad received
no response. The letter then asserted that the response of the
United Kingdom and the United States had made a negotiated settlement
impossible and proposed arbitration, relying expressly upon Article 14(1).
The letter of 18 January did not expressly assert the existence of a
dispute between Libya and the United Kingdom, although auch an assertion
is presumably implicit in the reference to Article 14 of the Convention.
More seriously, it gave very little indication of what Libya perceived to
be the content of that dispute.
0027c/CR3/T6/cw - 33 -
If, to paraphrase the Judgment in the South West AErica cases, it must
be shown that the claim of one party regarding the interpretation or
application of the Montreal Convention is positively opposed by the
other, the letter of 18 January shows nothing of the kind. The
United Xingdom has never, before this application to the Court, seen the
claim sufficiently articulated to enable it to decide whether it had
indeed any "positive opposition", and thus to malte this known to Libya .
.In its Judgment in the Mavrommatis Palestine.Concessions case, the
)Permanent Court recognized that "before a dispute can be the
1
~ (subject-matter of an action at law, its subject-matter should have been
clearly defined by means of diplomatie negotiations"
(P.C.I.J .~ries A~ No. 2, p. 15). The present Court took the same
approach in the case concerning the Obligation to Arbitrate, when it
emphasized that the subject-matter of the dispute between the
United Nations and the United States under the Headquarters Agreement had
'been clearly·defined in the letters sent by the Secretary-General to the
United States Government.
In her speech, my friend Professer Higgins, will develop further
argument on Libya•s failure to identify a dispute.
:s. Libya failed to meet the Convention requirementa for instituting
proceedings before the Court
The United Kingdom also submits that even if there is a dispute
between Libya and itself regarding the interpretation or application of
the Montreal Convention, Libya failed by the critical date, that is to
say before malting its Application to the Court, it failed to complete the
essential steps required by Article 14(1).
0029c/CR3/T7/fac - 34 -
These steps are preconditions to the Court having jurisdiction. As
the Court pointed out in the South West Afcica cases, it must be
assessed whether at the date the Application was filed those conditions
were met. If they bad manifestly not been satisfied at that date,
Article 14(1) cannat provide a prima facie basis for the Court's
jurisdiction.
1. Failure to aettle the dispute through negotiations
The first precondition is that there had been a failure to settle
the dispute through negotiation. The requirement that only a dispute
which cannat be reaolved through negotiation may be referred to other tif
means of settlement is found in the dispute aettlement provisions of many
treaties. It is not a mere formality. Article 14(1) is expressly drawn
in terme which refer not to disputes which have not been settled, but
to disputes which cannot be settled, through negotiation. It is not
open to the Applicant in the present case atmply to dispense with that
requirement.
In its Application (p. 3) Libya maintains that it had made various
diploma.tic overtures before the United Nations Security Council and
elsewhere before it concluded that the dispute could not be settled
through negotiation. At the present stage of the present proceedings,
the United Kingdom wishes to make only two points in response to that
assertion.
First, it is true that the Court has held, for example in the case
concerning the US Diplomatie and Consular StaEE, that a State is not
obliged to persevere with attempts at negotiation once it has become
clear that those attempts are bound to fail. However, it is submitted
that, in that case, the subject-matter of the dispute had been clearly
0029c/CR3/T7/fac - 35 -
,identified at a very early stage. The same vas true of the dispute in
jthe Applicability oE the Obligation to Acbitrate case. In the present
case, however, the subject-matter of the dispute bad not been made clear.
Counsel for Libya this morning referred to the passage in the
1Mavrommatis Palestine Concessions case, to which the Permanent Court
stated that negotiation need not be protracted. But in that case the
Permanent Court reached the conclusion that tbere bad been no need for
'further negotiations between the .two Parties, precisely because the very
lpoints in issue between the two States bad already been extensively
considered in correspondence between the United Kingdom and
IMr. Mavrommatis. There is no equivalent of that prior ventilation of the
,dispute in the present case.
Secondly, the second point we wish .to make at this stage is that,
although the Court held in the South West AErica cases that, in certain
circumstances, discussions in the various United Nations organs could
take the place of more tradltional direct negotiations, so that Liberia
;and Ethiopia were not required to go through the motions of direct talks
with South Africa, the Court added:
"But though the dispute in the United Nations and the one
nov before the Court may be regarded as two different disputes,
the questions at issue vere identical." (P. 345.)
The United Kingdom submits, however, that that is very far from
being the case here. If there is a dispute between the United Kingdom
and tLibya whieh falls within Article 14(1) of the Montreal Convention,
it is very different from the subjects considered in the debates in the
Security Council and the consultations initiated by the
Secretary-General. Neither the debates nor the consultation process did
anything to clarify the subject-matter of any Article 14 dispute.
0029c/CR3/t7/fac - 36 -
2. Llbya failed to make a proper request for arbltratlon
The second of the three preconditions in Article 14 ia that the
dispute ahould have been submitted to arbitration at the request of one
of the Parties. The Libyan Application maintains that Libya made a
..
request for arbitration, within the meaning of Article 14(1), in its
letter of 18 January. But this letter is defective as a request under
Article 14(1) because it does not attempt to define the dispute which
Libya is alleging to exist between itaelf and the United Kingdom. The
letter does not accuse the United Kingdom of violating any specifie
provisions of the Convention. Nor does it auggest vhat questions might
be referred to arbitration. It is in our submission essential that a
party seeking arbitration must formulate the issues upon which it
believes there to exist a dispute and vhich it wishes to have
arbitrated. A mere cali in abstracto for arbitration, without
formulating the issues, is not a valid request for arbitration under
Article 14(1). This la especially the case vhere, as here, previous
communications had done nothing to establish the existence of a dispute
or to clarify its nature.
3. The aix llODth period atipulated in Article 14(1) bas not e%pired
It is also submitted that Libya bad failed to eomply with the third
precondition laid down by Article 14(1), namely that a dispute may be
referred to the Court only if the parties to the dispute are unable to
agree upon the organization of an arbitration "vithin six montbs from the
date of the request for arbitration" - French text: "dans les six mois
qui suivent la date de la demande d'arbitrage". Libya acknowledges that
its request for arbitration vas made only on 18 January 1992, so that the
six month period stipulated in Article 14(1) had not expired when the
Application vas lodged vith the Court on 3 March and, indeed, has still
0029c/CR3/T7/fac - 37 ...
not yet expired. In the debate in the Security Council which preceded
;the adoption of resolution 731 the Libyan representative himself admitted
that recourse to the Court would be possible only by agreement or after
the expiry of the arbitration deadline. Be said;
"My country expresses its willingness to eonclude
immediately with any of the parties coneerned, an ad hoc
1
agreement to have recourse to the International Court of
Justice as soon as the short deadline for reaching agreement on
arbitration expires, or at any other convenient and near date
should the eountries eoncerned agree to go beyond the
arbitration stage and the proceedings of an arbitration
panel." (S/PV 3033 1 p. 23.) [Doc. No. 18]
By contrast with what was said then 1 Libya now argues that it was
1not obliged to wait for six months, because the United Kingdom bas
!
irejected arbitration and it is elear, it says, that no agreement will be
'reached. The argument is misconceived in the absence of a valid request
for arbitration under Article 14(1). Neverthe1ess, the United Kingdom
'submits further that this argument ia in any case based upon a
misunderstanding of Article 14(1).
First, the Libyan argument runa contrary to the plain meaning of the
text of Article 14(1). That text gives the parties to a dispute six
months from the date of a request for arbitration in which to agree upon
~ the organization of an arbitration. What Libya is asking the Court to
do - and this at the provisional measures stage - is to go behind that
text and ho1d that there is an implied power for a party (presumab1y
either party) to refer the dispute·to the Court before that six month
',
period bad expired.
Secondly, the Libyan argument ignores the context of the six month
provision. It is not a forma! or technical barrier to the submission of
disputes to the Court but an integral part of the scheme of
Article 14(1) 1 under which disputes are to be dealt with by arbitration
0029c/CR3/T7/fac - 38-
only if they cannot be resolved through negotiation. Arbitration is
envisaged as the normal means of third party settlement of disputes under
the Convention, with application to this Court being kept as a method of
last resort.
Since the Montreal Convention makes no provision for a standing
arbitral tribunal but leavea the parties to a dispute to agree upon all
aspects of the establishment of a tribunal and of the organization of the
arbitration, thee is an obvious risk tbat the parties will be unable to
agree upon some aspect of the arbitration, so that either the reference
to arbitration will be frustrated or the proceedings will become unduly -
protracted. Article 14(1), therefore, imposes a deadline; if the
parties cannot agree within the six montha, either party may refer the
dispute to the Court. The purpose of this provision is to discourage
delaying tactics and to tncrease the likelihood of the parties coming to
an agreement regarding arbitration. Its purpose is not to put in place a
purely forma! hurdle which a party must jump before it can take a case to
the Court. This interpretation is reinforced by the fact that
Article 14(1) allows either party to a dispute - not just the party
which originally requested arbitration - to refer a dispute to the Court
once the six month period bas expired.
Dispute settlement provisions which creste more than one layer of
settlement procedures frequently include a time-limit in terme similar to
those of Article 14(1). Thus, in the Advisory Opinion on the
Interpretation oE Peace Treaties, the Court bad to consider a clause
which provided that:
"any dispute concerning the interpretation or execution of the
Treaty, which is not settled by direct diplomatie negotiations,
shall be referred to the Three Heads of Mission acting under
Article 35 ••• Any auch dispute not resolved by them within a
period of two months shall, unless the parties to the dispute
mutually agree upon another means of settlement, be referred at
the request of either party to the dispute to a
commission ••• " (I.C.J. Reports 1950, p. 65.)
0029c/CR3/T7/fac - 39 -
Responding to a question about vhether the States concerned were
,,under an obligation to set the machinery of the Commission in motion,
this Court noted that there vas a dispute concerning the treaty vhich bad
not been settled by negotiation or by the Heads of Mission and that the
,United Kingdom and the United States "after the expiry of the prescribed
period" bad requested that the dispute be referred to the Commission. It
seems to have been assumed that auch a request could be made only after
'the tvo month period had expired.
Similarly, in his Opinion in the case concerning Mîlitary and
Parami11tary Activities in and against Nicaragua (Nicaragua v. United
\
States of America), Judge Nagendra Singh considered the dispute
settlement provisions of the Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persona, 1973 (the wording of
that provision is substantially the same as that of Article 14(1) of the
Montreal Convention). Judge Nagendra Singh commented that under the 1973
Convention "a lapse of six months form the date of the request for
~rbitratio w as a condition precedent for referring the dispute to the
Jnternational Court of Justice".
Libya seeks to get round the provisions of Article 14(1) by arguing
that the United Kingdom bas rejected arbitration. Libya refera, and bas
referred today, to a statement by the United Kingdom representative to
the Security Council. But wben the text of his·remarks is examined,
those remarks do not bear out Libya's assertion. What the Ambassador
actually said, in the course of the debate which preceded the adoption of
resolution 731, was as follows:
"The letter dated 18 January conceming a request for
arbitration under Article 14 of the Montreal Convention is not
relevant to the issue before the Counci1. The Council is
not, in the words of Article 14 of the Montreal Convention,
dealing vith a dispute between two or more Contracting Parties
concerning the interpretation or application of the Montreal
Convention. What we are concemed vith here is the proper
0029c/CR3/!7/fac - 40 -
reaction of the international comm\Ulity to -the situation
arising from Libya's failure, thus far, to respond effectively
to the most serious accusations of State involvement in acte of
terrorism." (S/PV 3033, p. 104; D 14.)
This statement merely confirma that the issues before the Security
Co\Ulcil did not turn on the interpretation or application of the Montreal
Convention. In the face of this statement, Libya was surely obliged to
assert the existence of a separate, defined dispute \Ulder the Convention,
if that was its true position.
Yet six weeks later,- when it filed its Application, Libya still bad
failed to define the subject of the dispute on which it claims to have
sought arbitration. It bad buried its mention of arbitration amidst a
welter of proposals - all of which it put to the Secretary General - for
international commissions, inquiries and "mechanisms" in the context of
resolution 731. What Libya is really seeking to do is to be allowed in
its application to the Court to take in one stride what is envisaged in
Article 14(1) as three separate and sequential steps.
Here, for the first time, Libya attempts to set out (though still
with little precision) what it alleges to be its dispute regarding the
interpretation or application of the Montreal Convention. It then asks
the Court to assume that negotiations were futile (though it bas never
put this dispute to negotiation), that it bas submitted the dispute to
arbitration (though it bas never before set out what issues it wanted to
arbitrate), and that agreement on arbitration would never be reached,
(though Libya bad made no proposais to allow such agreement) and all this
so that it could disregard the clear and express requirements of
Article 14(1). It is little wonder, perhaps, that these requirements
received such seant attention this morning.
0029c/CR3/T7/fac - 41 -
•Conclusion
.For all these reasons, then, the United Kingdom submits that
Article 14(1) manifestly does not provide a basis for the jurisdiction of
the Court, and that the Court should, therefore, on that ground alone,
refuse to indicate provisional measures.
It ls always necessary, I would respectfully submit, to.bear in mind
·the warnlng glven by Sir Hersch.Lauterpacht ln his separate Opinion in
Îthe Interhandel case, when he said that:
"Governments ought not to be discouraged from 1.Dldertaking,
or continuing to undertake, obligations of judicial settlement
as a result of any justifiable apprehension that by accepting
them they may become exposed to the embarrassment, vexation and
losa, possibly following upon interim measures, in cases where
there is no reasonable possibility ••• of juristiction on the
merita," (I.C.J. Reports 1957 1 p. 118.)
The need to respect this maxim is all the more powerful when, as
here, there are other strong arguments against the indication of
provisional measures. The submissions of the United Kingdom regarding
those other arguments will be put by Professer Higgins,
The ACTINGPRESIDENT: Thank you Mr. Rodger, The Court now rises
for a break for ten minutes.
l
The Court adjourned Erom 4.25 p.m. to 4.40 p.m.
0029c/CR3/T7/fac - 42 -
The ACTINGPRESIDENT: Please be seated. I nov give the floor to
Professer Higgins.
Professer HIGGINS: Mr. President, Members of the Court, it is no
mere formality when I say that it is the greatest honour to appear before
this Court and on behalf of my country. My task this afternoon is to
malte the submissions related to Par~s Ill and IV of our case. Part III
concerna Article 41 of the Statute -and our submission that the interim
measures sought by Libya should not be granted as they do not meet the
requirements of Article 41.
If a party seeks interim measures when, as in this case, the Court's
jurisdiction over the merite has yet to be determined and is likely to be
contested, a series of interlocking requirements must be met. The Court
must satisfy itself that it has prima Eacie jurisdiction under whatever
instrument is said to provide the basis for jurisdiction over the
dispute. It must also determine whether the conditions of Article 41 of
the Statute are met, the first of which are that the circumstances
require the indication of provisional measures, and the second of which
is that measures may only be indicated to protect the rights of the
parties.
Now the sequence in which the Court should go through these
interlocking gates is open to dispute. Over the years different views
have been talten by different Members of this Court, some contending that
there is always present an incidental jurisdiction to decide if
circumstances require at all provision&! measures. Only if the answer is
in the affirmative need the Court then determine if, by reference to the
003lc/CR3/T9/ah - 43 ...
existence of prima Eacie jurisdiction over the merita it may proceed to
'order them. Others have taken the view that the Court must first
establish its prima Eacie jurisdiction over the merita in order to
..
proceed at all to any consideration of the requirements of Article 41.
If prima Eacie.jurisdiction must first be established before any
consideration of the criteria of Article 41 arises, and if the Court
accepta the submisaiona of the So1icitor-Genera1 that no prima Eacie
:jurisdiction under the Montreal Convention :exista, there wou1d be no need
ro proceed further. The Aegean Continental ShelE case suggests the
1ourt found that the interim measures were not needed and "having reached
'
• .this conclusion it was not necessary for the Court to make any
determination as to the prospects of its jurisdiction with regard to the
merita, even on a prima Eacie basis". This sequence of hand1ing the
relevant factors leaves the question of jurisdiction entirely reserved
for full argument and a future judgment. Of course, this possibility
entails as its sine qua non the view that Article 41 is an autonomous
grant of jurisdiction to the Court, on which different views have been
expressed over the years by different Members of the Court.
Till RIGIII'S
A. The riahts to be protected must not be illusory
Article 41 provides for the protection of rights when circumstances
so require and I turn first of all to the rigbts.
For purposes of having sufficient jurisdiction to contemplate
provisional measures when substantive jurisdiction bas not yet been
established, the Court must of course satisfy itself that it bas prima
Eacie jurisdiction under the relevant instrument and not that the
applicant bas a prima Eacie prospect of success on the merita.
003lc/CR3/T9/ahr
- 44-
But when the Article 41 requirements come into play~ the matter
presents itself differently. The Court is nov deciding whether measures
are required to preserve the rights of a party. At this phase the .-
reference must, of course, be in a general sense to the rights as
formulated by the party concerned and yet to be tested on the merita.
Bowever, the right must still not be illusory, or manifestly without
foundation.
The phase of interim measures ..is .an inappropriate time for the
deploying of the case on the merita. Any yet, in the words of
Judge Shahabuddeen in the Passage through the Great Belt (Finland v.
Denmark) (I.C.J. Reports 1991 1 p. 28):
"is it open to the Court by provisional measures to restrain a
State from doing what it claims it has a legal right to do
without having beard it in defence of that right, or witbout
having required the requesting State to show that there is at
!east a possibility of the existence of the right for the
preservation of which the measures are sought?"
Judge Shahabuddeen notes that the Court has never bad occasion to
pronounce on this question, but suggested that "enough material should be
presented to demonstrate the possibility of the right sought to be
-·
protected". And, while maklng clear that the Court did not formally
pronounce on the matter, he believes that in the United States
Diplomatie and Consular Staff in Tehran (I.C.J. Reports 1979,
pp. 17-20, paras. 34-43) "the Court was clearly concerned to satisfy
itself affirmatively that there was a case for holding that the rights
sought to be protected by provisions! measures did exist in international
law and vere in fact being violated" (p. 25).
•.
The United Kingdom respectfully supports this perspective and, for
that resson, will briefly indicate why Libya's claimed rights under the
Montreal Convention are in fact illusory.
003lc/CR3/T9/ah - 45 -
:B. Ihe rights çlaimed by Libya are illusory
In Part III of its Applieation, Libya accuses the United l:ingdom of
violating ri&hts vb!Ch Libya claims arise from five provisions of the
Montreal Convention- Articles 5(2), 5(3), 7, 8(2) and 11 - and Members
of the Court may, for this section of my submissions, f:lnd it eonvenient
to have the Montreal Convention before them.
Aa to Article 5, paragraph 2, in paragraph III(b) of its
Application, Libya contends that Article 5(2) of the Montreal Convention
confera on Libya the right to take auCh meaaures aa may be neceasary to
tlt "establish its jurisdiction" over the offencea liated in Article 1, in
any case vhere the alleged offender ia present in its territory and it
does not eztradite him. The Application claima that the United Klngdom
is attempting, in violation of Article 5(2), to preclude Libya from
establishfng its jurisdiction in the present eaae.
This argument, it submitted, ia baaed on a complete lllisunderstanding
of Article 5(2). rhat provision imposes upon each party to the
,Convention a duty to ensure that !ta lav provides for jurisdiction over
the offences Usted in Article 1, irrespective of vhere, or by vb.om, they
vere CODID.itted, so that a State has the capacity under its ovn lav to try
an offender if it does not extradite hlm. The text of Artiele 5(2) maltes
•
clear that vhat is involved is the creation of jurisdiction, and not
its ezercise in an individual case.
Once that is appreciated, it becomes clear that nothing the ,
United E:ingdom has done or could do in the future is capable of affecting
anyone•s rights or duties under Article 5(2).
In any event, aa the Solicitor General has informed the Court, Libya
has itself adm.itted that the basis for the jurisdiction of the Libyan
courts in the case of the Lockerbie suspects is nothing to do vith the
Kontreal Convention. The Libyan authorities have asserted jurisdiction
003lc/CR3/T9/ah----- --------
- 46 -
over the two men on the basie of their nationality, relying on Article 6
of the Libyan Penal Code of 1953, a provision wholly uneonnected vith
Article 5(2) of the Montreal Convention of 1971.
Article 5(3)
Libya also claims a right under Article 5(3) to exercise criminal
jurisdiction in accordance vith its national law. Yet all that
Article 5(3) says is that: "This convention does not exclude any
criminal jurisdiction exercised ..in accordancE! with national law."
Article 5(3) is quite clearly a saving provision, designed to do nothing
more than make clear that any basie for criminal jurisdiction which
already existed in the law of a State prior to the adoption of the •
Montreal Convention - auCh as tbat provided by Article 6 of the Libyan
Penal Code - is not excluded or superseded by the other provisions of the
Convention.
Article 5(3) does not address the question of which State should
exercise jurisdiction when more than one hss a basie for doing so. Nor
does it preclude a State from demanding the surrender of a suspect. Nor
does it prohibit demanda for surrender when the national State is
reasonably believed itself to have been involved in the acta in question .
Article 7 •
In paragraph III (c) of the Application, Libya accuses the
United Kingdom of trying to prevent Libya from fulfilling its obligations
to submit the case to its competent autborities for the purpose of
prosectuion under Article 7 of the Convention which counsel for Libya
this morning described as the cornerstone of Libya's rights. The
Application itself states, however, that Libya has already submitted the
case to its competent authorities. Therefore on its own argument Libya
bas discharged its obligation under this provision and indeed the
United Kingdom bas never suggested that Libya is in violation of
003lc/CR3/T9/ah - 47 -
Article 1 and nor would Libya be in breaCh of that provision if she were
now to surrender the two accused for trial elsewhere. In any event,
~rticl e stipulates obligations for Libya, but no rights for Libya arise
thereunder.
Article 8, paragraph 2
Libya's submission regarding Article 8{2) of the Convention
(para. III (e) of the Application) is not easy to follow. Libya
accuses the United Xingdom of violating .this ,,provision by seeking the
lurrender of the two accused and refera in this context to
Article 493 (A) of the Libyan Code of Criminal Procedure which, it
states, prohibits Libya from extraditing one of its nationale. The exact
nature of this prohibition is unclear, as Libya has on more than one
occasion told the Secretary-General that it would be villing to extradite
the two accused to a third State or to the Arab League, or even, in
certain circumstances, to the United States. And I sl~ply remind the
Court of what the Solicitor General has said on that matter.
In any event, it is difficult to see what rlghts Libya might have
.· under Article 8(2) which could be in issue ln the present proceedings •
Article 8 of the Convention deals with extradition. Article 8(1)
1
provides that offences under the Convention shall be deemed to be
•
extraditable offences. And Article 8(2) then. goes on to provide:
"If a Contracting State which makes extradition
conditional on the existence of a treaty receives a request for
extradition from another Contracting State with which lt has-no
extradition treaty, it may at its option consider this
Convention as the legal basia for extradition in respect of the
offences. Extradition shall be subject to the other conditions
provided by the law of the requested State."
And Article 8(3) then stipulates that Contracting States which do
not make extradition conditlonal upon the existence of a treaty shall
recognize the offences under the Convention as extraditable offences
between themselves. Article 8, paragraph 4 addresses jurisdictional
issues in the context of extradition proceedings.
003lc/CR3/T9/ah - 48 -
In other words, Article 8(2) is another enabling provision. It
provides a mechanism by whieh extradition may be effected, if the States
concerned wish to make use of it. The United Kingdom has not, however,
sought the extradition of the two aecused under Article 8(2) - indeed, it
has not sought their eKtradition (in the teChnieal sense of the term)
at a11 - but has instead maintained that Libya shou1d, for ressons
unre1ated to the Montreal Convention, surrender the two aecused.
The United Kingdom reserves the right to develop this argument, in
partieular, more fully at the merita phase of the proceedings, in the
event that auch a phase should ever be reaehed.
Article 11
Finally, paragraph III (E) of the Application claims that Libya
bas a right, under Article 11 of the Convention, to receive assistance
from the United Kingdom in connection with the criminal proceedings
brought by Libya.
In view of the United Kingdom Article 11 is an anci11ary provision
which comes into operation when it has been accepted that trial should
take place in a particular State and that State requires assistance. But
whether trial can only take place in Libya is exaetly the issue before
this Court. In the event that proceedings should be held on the merita •
of the present Application, the United Kingdom will wish to argue,
inter alia, that Article 11(1) does not confer·upon Libya a right to
require full evidence, the disclosure of which might seriously prejudice
the possibility of criminal proceedings ever being brought in the
United Kingdom.
C. rhere must exist a nezus between the rights to be protected and the
interim measures sought
Article 41 of the Statute is to be read with the relevant Rules of
Court. The current Rules provide, in Article 73, that the request for
provisional measures "shall specify the ressons therefor, the possible
003lc/CR3/T9/ah - 49-
consequences if it is not granted, and the measures requested". Now the
1972 R.ules (Art. 66, para. 1) provide that the rèquest "shall specify •••
the rights to be protected". The purpose of the variation in wording was
to ensure that elements not specifically provided for ln the 1966 Rules -
the reasons and the possible consequences - are brought to the fore.
The Court continues to need to satisfy itself as to the necessity to
protect the tights, and this it cannot do unless it is clear what the
,.alleged rights consist of. Although the parties are no longer required
!in terms to specify el tber the case to whlch the request relates, or the
• :rtghts to be protected, nothing we submit should be read into that.
Although the procès-verbaux for the new Rules have not been published,
these requirements are inherent in the procedure •
•
003lc/CR3/T9/ah :.. 50 -
In the Court's jurisprudence there has been a dual element to the
requirement of nexus.
In the first place, the measures sought must relate to the
subject-matter of the dispute and not to issues that do not constitute
the true subject-matter. That principle is clearly illustrated in the
Aegean Sea Continental ShelE case (I.C.J. Reports 1976, p. 3). In
that case Greeee asked the Court to adjudge and declare that specified
Greek islands were entitled to a portion .of_._continental shelf that
appertained to them; and what was the course of the boundary between the
portions of the continental shelf appertaining to Greece and Turkey in
the Agean Sea (I.C.J. Pleadings; Aegean Sea, p. 11). In the request •
for provisional measures, Greece asked the Court to direct the
Governments of Greece and Turkey (1) to refrain from exploration and
seismic acttvity and (2) to refrain from taking mtlitary measures or
actions. The subject matter of the dispute was not unlawful military
actions. And it mattered not that Greece had, in explaining what rights
it saw as in need of protection, included reference to "the rights of
·Greece to the performance by Turkey of its undertakings contained in
Article 2, paragraph 4, and Article 33 of the Charter of the United
Nations". •
The Court held that its power under Article 41 "presupposes that
irreparable prejudice should not be caused to rights which are the
subject of dispute in judicial proceedings (~rder of 11 November 1976,
para •. 25). The Court noted (Order of 11 November 1976, para. 34) that
the right to have Turkey refrain from military measures "is not the
subject of any of the severa! claims submitted to the Court by Greece in
its application", whereas it follows that this request does not fall
within the provisions of Article 41 of the Statute.
0033c/CR3/Tll/rmcb - 51 -
The significance is this. Merely to invoke a right in some part of
one's application does not make that claimed right the subject-matter of
the dispute. And, if it is not the subject~atter i, does not fall
within the provisions of Article 41.
.. In the present case, the claims of Libya are to be found at
Section III(a)-(g) of its Application. There is no claim concerning
the use of force, and no dispute about Libya and the United Kingdom's
'respective rights in relation thereto, The adding of a half paragraph
j
which refera to the "use and threat of force" in paragraph C of the
j
Judgment Requested (IV(C)), does not serve to transform the
•
·subj ect-matter of the dispute into one about the use of foree. Further,
the subject~atte of the dispute is not about alleged "coercion" or
"threats" by the United Kingdom. The application instituting proceedings
makes no auch claim, offers no relevant evidence and presents no relevant
law on "coercion" by the United Kingdom though today we have beard some
allegations for the first time this morning. The claim is clearly about
alleged violations of the Montreal Convention, as specified in
~Sectio II(c)-(g). The relief sought by Libya under Section 7(a)
rf its Request for Interim Measures {"to enjoin the United Kingdom from
:taking any action against Libya calculated to coerce or campel .Libya to
•
surrender the accused individuals to any jurisdiction outside of Libya")
that is, in the words of the Court in the Aegean Sea case "not the
subject of any of the severa! claims" - and should be rejected. :
A difference element of this principle of nexus is illustrated by
the Polish Agrarian ReEorm and Ger.an Minority case in front of the
Permanent Court (P.C.I.J.; Series AIB; No. 58, p. 178). In that case,
Germany had claimed that Poland had violated its obligations under the
Minority Treaty. The German request for interim measures asked the Court
0033c/CR3/Tll/rmcb - 52 -
to indicate that Poland should not engage in various aetivities related
to the expropriation of German minority estates. The Permanent Court
found that the requested measures eoncerned future cases of application
of the contested Polish law, vhereas the claims vere of existing
01
infractions (p. 178). The Court vould not order the interim measures
because they could not "be regarded as solely designed to protect the
subject of the dispute and the actual object of the principal claim".
And so they cannot in the present case. If the dispute in the
present case, as formulated by Libya, is that the United Kingdom is in
breach of the Montreal Convention, the relief sought in paragraphe 7(a) •
and 7(b) is not solely direeted to that end. In faet, it is directed
against the Security Council being able to take measures it thinks
appropriate vith regard to the matter on its agenda relating to
international terrorism.
The requirement of nexus has recently been affirmed by the Court in
the Guinea Bissau case (case concerning the Arb1ta1 Award of
31 July 1989 1 I.C.J. Reports 1990, p. 64) and its application to the
present case, in our submission, makes the relief sought unavailable
under Article 41.
Beeessar.r in the circumstances •
Mr. President, Members of the Court, I turn to necessary in the
circumstances, the other requirement of Article 41. If the Court has
sufficient jurisdiction and if the applicant State· has identifiable·.
rights on the merita and proposes measures which have the appropriate
nexus vith the subject-matter of the dispute, the Court still has to
"consider that circumstances so require" tmder Article 41.
And, there is clearly an important role for the discretion and
•'
appreciation of the Court here. It is for the Court to decide whether
0033c/CR3/Tll/rmcb - 53 -
circumstances so require and there is nothing in the Statute or Rules
'that limita what factors it may properly take into account.
The Court will no doubt want to consider the circumstances of the
case against the background of the various criteria that it and the
Permanent Court have evolved over the years.
(a) Irreparable damage
In determining whether the circumstances require the ordering of
;provisional measures, the Court has used the test of "irreparable harm or
~da Thereaappear eto be three 11111inays in vhich the concept has
ibeen used: (1) irreparable prejudice to the potential judgment of the
Court, (2) irreparable harm to rights claimed, (3) irreparable harm to
persona and property. These concepts, to a degree, overlap with each
.ether.
The Court has frequently expressed the idea that "the essential
abject of provisional measureé is to ensure that the execution of a
future judgment on the merita shall not be frustrated by the actions of
one party pendente lite" (Judge Jiménez de Aréchaga, Aegean Sea case,
X.C.J. Reports 1976, p. 16). Where no such urgent danger is perceived,
fircumstances will not require the indication of provisional aeasures.
· A reference is often made in the Court's Orders to the requirement
that, I quete now the Anglo-Iranian Oil Company case where the Court
said that "no action is taken which might prejudice the rights of the
ether party in respect of the carrying out of any decision on the merita
which the Court may subsequently render" (I.C.J, Reports 1951, p. 890
at 93-94). Essentially the same formula bas been used in the Fisheries
Jurisdiction case (I.C.J. Reports 1972, pp. 17-18); in the Nuclear
Tests case (I.C.J. Reports 1973, p, 142); in the Nicaragua v.
United States case (I.C.J. Reports 1984, p. 187); and in the
0033c/CR3/Tll/rmcb----~-- ~----~
- 54 -
Burkina Faso v. Mali case (I.C.J. Reports 1986, p. 12). In this
last case, the Chamber referred to the importance of avoiding prejudice
to "the right of the other party to compliance with whatever judgment the
Chamber may render in the case". This was the test that the Permanent
Court had earlier applied in the Electricity Company case ..
(P.C.I.J., Series AIB, No. 79, p. 199).
•
0033c/CR3/tll/rmcb - 55 -
This key test bas aleo been referred to in varioue cases wbere the
.Court did not grant interim measures - either because this element was
missing, or for other reasons. I may refer to the Interhandel case,
where the Court spoke sternly of the need for requested measures of
protection to "relate to the concern of the Court to preserve the rights
which may subsequently be adjudged by the Court to belong either to the
Applicant or to the Respondent" (I.C.J. Reports 1951, p. 111).
So the preservation of the integrity and effieacy of the judgment
would certainly seem to be the central element in the Court's
'consideration of whether eircumetances require the indication of interim
measures. And taking this as the key test, the United Kingdom makes the
following submissions. There are no circumstanees that jeopardize -
still lesa urgently jeopardize - any rights claimed by Libya in the sense
that a judgment in Libya's favour would be without effect.
It is first necessary to remind the Court what these legal rights
are claimed to be. Libya claims that it bas the following rights, whieh
the United Xingdom is denying to tt: the right to establish jurisdiction
under Article 5, paragraph 2 of the Montreal Convention; an obligation
junder Article 7 to submit the matter to its competent authorities; the
:right to exereise criminal jurisdietion under Article 5, paragraph 3;
and the right to reeei~e co-operation in the exercise of national
jurisdiction under Article 11, paragraph 1. The Court bas already beard
the submissions that Libya's insistence that these are rights, and/or
rights grounded on the Montreal Convention, is totally misconeeived.
But even if, arguendo, Libya bas the claimed rights under the
Montreal Convention, then this is still not a right in which there is a
prospect of irreparable harm in the sense required by the Court.
Regarding Article 5, paragraph 2, the United Kingdom bas not prevented
0035c/CR3/T12/ew - 56 -
Libya from establishing its jurisdiction (indeed, it has clearly already
done so). No rendering of a Court judgment on this point is remotely in
view, and interim measures bave no role whatever to play regarding that
claim. As for Libya•s Article 7 claim, we merely note that interim
measurea are directed towards protecting rights and Libya speaks of an
obligation, not a right. Bo interim measurea are needed to protect any
appropriate judgment of the Court on this point. Again, it ia impossible
to see that there is a danger of irreparable harm to the Court's ability
to pronounce effectively on Libya's alleged rights under Article 5,
paragraph 3, to exercise criminal jurisdiction (even ignoring that any
auch right does not stem from the Montreal Convention, but from customary
international law, as reflected in Libyan law). As to its claimed rights
under Article 11, to receive co-operation in the exercising of national
jurisdiction, there can be no suggestion that this would not be available
upon a judgment favourable to Libya, save through the indication now of
interim measures. It is not easy to see, in any event, how interim
measures would assist the International Court and the International Court
· is aware of the importance the United Xingdom attaches to its judicial
determinations.
Nor in the present case is it possible to see that "irreparable •
harm" could be occasioned, in the sense that concerned the Court in the
Hostages or.Nuclear rest cases, to any of the rights claimed by
Libya. Where persona may die or be incarcerated, as in the Rostages
case, or where they may suffer from radiation or unknown genette
effects - then indeed one understands the notion that nothing will
protect against the prejudice. But even if there is a potential right
under the Montreal Convention and even if it is a right to exclusive
0035c/CR3/Tl2/cw - 57 -
,competence over the accused, that surely is not in the same category as
lthese examples. Any judgment would not in these circumstances depend
upon interim measures to render it effective.
The Hostages and Nuclear Tests cases are the classic examples of
the Court viewing irreparable harm as relating to the safety of persona
and property. But the difference of approach is more apparent than real,
because in both cases unlawful harm to nationale formed the very
1
subject-matter of the dispute. Bere the dispute is said by Libya to be
about its rights under the Convention. Not only are suggestions of
1"threats" and "use of force" by the United Kingdom purely speculative,
:but interim measures prohibiting them have no role to play in preventing
irreparable damage to the righta as claimed. The circumstances of this
case are far removed from the view taken in the Hostages and Nuclear
'Tests cases as to the need to protect against that form of harm.
Th.at. leads to a related .;..but different point. The indicating of
interim measures before jurisdiction is established necessarily entails
~constrain upon a state over whomjurisdiction is uncertain, and which
~as not yet been shown to be acting unlawfully, and which has not yet
!
jbeen able to deploy i ts case on the merl ta. In exercising its powers
.under Article 41, the Court should consider, in the circumstances of the
•
case, the balance between the rights of the Parties. Where the right
claimed is protection against death or·genetic disaster, the balance may
go one way. But where the right .is a proclaimed right to sole ·
jurisdiction, it may be asked whether the balance does not tip
differently. And in this particular case, it should also be borne in
mind that the interim measures requested would protect this proclaimed
right to exclusive jurisdiction in circumstances where the international
community has reason to believe that Libya itself was directly implicated
0035c/CR3/Tl2/cw - 58 -
in ordering acta of terrorism. (It is interesting to recall,
Mr. President, Members of the Court, that in the Pakistan Prisoners of
war case (I.C.J. Reports 1973, p. 328), a claim was made by Pakistan
for sole jurisdiction over nationale accused of genocide, and sought
interim measures to protect their repatriation to a third country. The
measures vere not indicated due to a perceived lack of urgency.)
B. Urgency
It is vell established that interim measures may not be granted
under Article 41 as we bave said unless tbere is an immediate prospect of
irreparable damage to the rights in dispute. In both the Inte.rhandel
case (I.C.J. Reports 1957) and the Pakistan Prisoners oE War case, no
interim measures vere ordered because of lack of urgency.
Professor Brownlie suggested, this morning, tbat there was probably
no substantive requirement in law, however, to show urgency and he
further submitted that urgency nonetheless did exist in this case. And 1
would like to take each of these points briefly in turn.
As to the requirement of urgency in law we believe urgency be a
· substantive requirement in the ordering of interim measures. Article 41
and the interpretation given to it is to be read in the context of the
relevant rules. Rule 74, paragraph 1, refera to a request for interim
•
measures having priority over all other cases. And Rule 74, paragraph 2,
requires the Court to be convened forthwith for the purpose of proceeding
to a decision as a matter of urgency.
..
0035c/CR3/Tl2/cwr----------~------------~---------------·--···---~
- 59 -
Why should the case have priority? Why should the Court reach its
decision as a matter of urgency if the alleged irreparable harm. is not in
'
fact urgent and imminent? It can. make no sense. Further, Libya's own
..
Application made as a matter or urgency - how can a State apply as a
~. matter or urgency in relation to a non-urgent matter.
As to the existence or urgency in fact, various alleged threats were
deployed before the Court this morning. But Libya has addressed no real
~videnc ie support of its allegation that the United Kingdom is
j
threatening to use force against it. Al! that Professer Brownlie was
1
able to do this morning was to quote a remark by the Minister of State at
the Foreign and Commonwealth Office in a parliamentary debate that said
"I have ruled nothing in and I have ruled nothing out".
The Court will however wish to look at the Minister's statement in
its entirety. In response to an intervention by another Member of
Parliament the Minister said ,;1 have never made any reference to the use
of force. I have said here and elsewhere that we seek to persuade the
Government of Libya to comply with our request that the two people should
be brought to trial before the courts, either of Scotland or the
United States. We hope that we shall secure a United Nations resolution
l
underpinning that request. Wehope that the Government of Libya will
comply. Clearly if they do not we shall have to consider our next step.
I have not suggested force. 1 have ruled nothing in and 1 have ruled
nothing out. Now it surely cannat be alleged in any sense that wherever
a Statesman keeps his options open and declines to disclose his band in
public that this amounts to a threat, still lesa a threat to use force
which requires the Court to put all other cases aside to meet in urgent
session to indicate interim measures.
0034c/CR3/Tl3/fac - 60 -
The Order in the Great Belt case (I.C.J. Reports 1991, p. 23)
indicates clearly that urgency has a specifie meaning in the context of
interim measures - it is tied in to the prospect of the disappearance of
rights that cannot be compensated before the substantive issues come on
for adjudication. Urgency of that legal character is not lightly to be
presumed and in cases auch as the Hostages and Fisheries Jurisdiction
urgency arose from the fact that the offending acta had already occurred
and were continuing.
There is no urgent prospect of the disappearance of a right held by
Libya. Instead, there is a prospect of ongoing debates in the Security
Council, that may or may not lead to certain actions being taken in that
body. The Court does not know what actions the Security Council would
take, and should not base its Order on speculative possibilities,
speculative possibilities regarding decisions not yet taken are not the
test of urgency required for an Order of interim measures.
So the United Kingdom has made no threat to use force. The
United Kingdom will of course continue to abide by international
obligations including its obligation under Article 2, paragraph 4, of the
Charter. The Applicant does not come anywhere near showing the Court
that there is a real risk of imminent danger from unilateral sanctions if
•
the Court should not indicate interim measures.
Indeed, the Applicant has been so sparing in ·its indication of
reasons wby interim measures should be granted that its Request it
submitted is in danger of falling outside of Article 73 of the Rules
altogether: the Request does not, as required by that Article, contain
anything regarding the "possible consequences if it is not granted".
0034c/CR3/Tl3/fac - 61 -·
IV~ Further reasons vby the Court should not indicate the interim
aeasures sought
I turn to Part IV of our submissions. The further reasons beyond
Article 41 of the Statute why the Court should not indicate the interim
measures sought.
Article 41 of the Statute provides the basis for its ancillary
jurisdiction "to indicate, if it considera that circumstances so require,
any provisional measures which ought to be taken to preserve the
;respective rights of either party". But the wording of this provision is
not determinative of the matter. As we have seen, it is necessary alao,
ln the case of contested jurisdiction, for the Court to determine that it
does have the jurisdiction necessary to determine whether it considera
that the circumstances of the case require provisional measures to be
taken.
But even beyond that, there is a further matter. Even if the Court
has prima facie jurisdiction over the merita sufficient to allow it to
proceed to a determination of the interim measure requested, and even if
the test for determning whether circumstances require provisional
measures is met, it may still be inappropriate for the measure to be
l
fndicated. Article 41 confera on the Court the necessary power, but this
provision is not conclusive per se as to the propriety of the Court
exercising it. As the International Court stated in the Northern
Cameroons case:
"there are inherent limitations on the exercise of the
jurisdiction function within the Court, which the Court as a
Court of Justice, can never ignore" (I.C.J. Reports 1963,
Preliminary Objections, p. 29).
Former President Judge Jiménez de Aréchaga bas suggested, in his separate
opinion in the Aegean Sea Continental ShelE case (Interim Measures)
(I.C.J. Reports 1976, p. 16) that Article 41 provides the basis for the
Court's power to act, but that the Court st111 bas to take circumstances
0034c/CR3/T13/fac - 62 -
into account in deciding whether to grant the interim measures and in the
present case we submit that there are many factors of critical importance
that make the interim measures sought by Libya totally inappropriate, and
further malte clear that the circumstances do not require that they be
granted. .-
A. The interim measures sought by Libya we say are vague, imprecise and
uasuitable to be indicated as Orders of the Court
The measures sought are specified in paragraph 7 of Libya's Request
for Interim Measures. Paragraph 7(a) speaks of enjoining the
United Kingdom from taking "any action against Libya calculated to coerce
or campel Libya to surrender the accused individuals". What exactly is
covered by "any action"? Does it cover diplomatie activity? Does it
cover, for example, briefings of the press? Does it require the
United Kingdom to desist from supporting the activity of the
Secretary-General which is directed towards securing compliance with
Security Council resolution 731? How ia the line to be drawn between
actions designed to persuade Libya, and actions designed to coerce
. Libya? Who is to test this entire ongoing state of Anglo-Libyan
relations, to see whether subsequent events, auch as interdiction of
trade, etc., are the product of unsatisfactory relations or are
"caleulated to coerce"? •
The measures sought in paragraph 7(b) are so imprecise as to be
meaningless. It is not clear to whomit is directed, the United Kingdom
or the world at large.
0034c/CR3/Tl3/fac - 63 --
It does not enjoin the United Kingdom against taking certain steps,
but requires tt to ensure that no steps are taken. It is not clear by
whomthese steps may not be taken, nor how the United Kingdom is meant to
ensure that they are not taken. What if a third country seeks to compel
•
Libya to surrender the accused to it for trial in an appropriate
jurisdiction7 Do the requested interim measures require something of the
United Kingdom in that event? Or is paragraph 7(b) addressed to that
unknown third party itself7 And, as if all that were not sufficiently
:confused, what are the steps that might be thougbt to prejudice Libya's
right with respect to legal proceedings.
The objective of interim measures is to preserve the rights of the
parties pendante lite. This cannot be done if it is uncertain to whom
.the protective measures are addressed, what measures are in fact
prohibited and if constant auto-interpretation by the United Kingdom or
constant guidance by the Court would be required to decide whether any
particular action would or would not fall within the Orders. No national
Court would grant injunctive Orders of this imprecision, and we belive
the International Court should not either.
The practice of the Permanent Court and the International Court
'supports this contention. There have now been ten cases in which interim
•
measures have been ordered. In all save one of them the measures ordered
have been extremely specifie, leaving the party to whomthey were
addressed in no doubt as to what was required of tt. In the -
Sino-Belgian Treaty case (Denonciation oE the Treaty oE 2 November
1865 between China and Belgium, P.C.I.J •• Series A, No. 8), the
·-
provisions! measures contained specifie and detailed directives, broken
down by reference to Belgian nationale, property and judicial
0036c/CR3/T14/ah - 64 -
safeguards. In the Ang1o-Iranîan Oi1 Co. case (I.C.J. Reports 1951,
p. 93 f.), the measures indicated referred to the entitlement of the
Anglo-Iranian Oil Company to carry on operations pro tem free of
interference. And as if to emphasize the need for specificlty, the Court •
ordered the establishment of a board of supervision and vent into
considerable details as to bow it was to be composed and operated. In
the two Fîsherîes Jurîsdictîon cases (I.C.J. Reports 1972, p. 12) the
Orders were also detailed with metric tonnage of catch being specified.
In the Nuclear Tests case (I.C.J. Reports 1973, p. 99), France was
ordered "to avold nuclear tests causing the deposit of radioactive
faU-out on Australian territory". In the United States Diplomatie and
Consular Staff in Tehran, (I.C.J. Reports 1979 1 p. 7), the Orders were
again specifie, eoverlng the protection to be afforded to the diplomatie
premises and the immediate duty to releaae all hoatages. In the case
concerning M11îtary and Par~litary Actîvities in and agaînst Nicaragua
(Nicaragua v. United States of America) (I.C.J. Reports 1984,
p. 169), the Court made specifie indications applicable to the United
States, namely, that lt should cease and refrain from action restricting,
blocklng or endangering aecess to or from Nicaraguan ports, and in
particular the laying of mines. And finally, in the Frontier Dispute •
case, where after military hostilities bath Burkina Faso and Mali agreed
that provisional measures should be indicated, Orders were given about
ceasefires, troop withdrawals and the administration of the disputed
areas.
In only one case has there ever been a generalized and unspecific
Order of the category now sought by Libya. In the Electricity Company
of Sofia and Bulgaria case (P.C.I.J., Series AIB. No. 79, p. 194), the
0036c/CRJ/Tl4/ah - 65 -
.Court indicated "The State of Bulgarie should ensure that no step of any
kind is taken capable of prejudicing the ri&hts claimed by the Belgian
Govermnent or of aggravating or extending the dispute submitted to the
.- Court." This Order is completely out of character with the general
practice of the Court. Professor Sztucki, in his book Interim Measures
in The Hague Court" (1983, p. 76), commenta on this and suggests that
its brief and general terms may be explained by the unparalleled
expedition of the granting of thoae Ordera - the very day following the
:hearing. In any event since 1939 the practice has been in favour of
specifie Orders.
The United Kingdom submits that the measures requested by Libya in
paragraph 7(a) and (b) lack the necessary clearness and precision that
was required by the Court in the Polish Agrarian Reform and German
Minority case (P.C.I.J., Series AIB, No. 58), and should not be granted.
(b) Libya's assertion that interim measures are needed to prevent an
aggravation of the dispute is incorrect in law and unacceptable in
its factual content
In paragraph 5 of its Request Eor Interim Measures Libya states that
1nterim measures are required "to cause the United Kingdom to abstain
~r aoy action capable of having a prejudicial eEEect on the Court's
~ec in ithescaseiando tonrefrain from taking any step that might
aggravate or extend the dispute, as would surely happen iE sanctions are
imposed against Libya or force employed".
In the submission of the United Kingdom, insoEar as the aggravation
of a dispute is a ground for granting interim measures at all, lt has no
separate existence beyond the ground speciEied in Article 41, that is to
say "to preserve the respective rights oE either party" pending final
decision. In the Legal Statua of the South-Eastern Territory of
Greenland. (P.C.I.J •• Series AIS, No. 48, p. 277), Norway had sought
0036c/CR3/T14/ah - 66 -
by decree to place territory claimed by Denmark under its sovereignty,
Botb States filed applications with the Court and Norway sought interim
measures to prevent what tt called "regrettable eventa and unfortunate
incidents". Interim measures were refuaed, prtmarily because the Court
felt there waa no reason to suppose that auch incidents would occur. In
any event, the feared incidents would not affect Norway's rights under
any judgment that the Court might give. The Court on that occasion left
open, in qui te specifie terme,. the- question of whether it was competent
to issue interim measures "for the sole purpose of preventing regrettable
events and unfortunate incidents" (p. 284).
In a series of subsequent cases, the Electricity Company oE Sofia
and Bulgaria case (P.C.I.J., Series A/B, No. 79, p. 194), the
Anglo-Iranian Oil Co. case (I.C.J. Reports 1951 1 p. 89), the
Fisheries Jurisdiction case (I.C.J. Reports 1972, p. 12), and the
Nuclear Tests case (I.C.J. Reports 1973, p. 99), the Court issued
orders which included indications to avold actions whicb might aggravate
or extend the dispute submitted to the Court. But in the submission of
the United Kingdom, this dtd not dispose of the question of whether this
is,a separate ground for ordering interim measures, because in fact
interim measures were also squarely based on the need to conserve the
•
capacity for the judgment of the Court to be carried out. This
interpretation is in effect supported by the fact that the matter was
regarded by the Court as still open when tt once again came upon it in
the Aegean Sea Continental Shelf case (I.C.J. Reports 1976, p. 3).
Professor O'Connel! bad argued for Greece that the competence "to arder !
interim measures to avoid aggravation or extension of the dispute is
separable from, not merely another way of phrasing the tdea that interim
0036c/CR3/Tl4/ah 67
measures are intended to avoid prejudice in regard to the execution of
the decision later to be given" (CR 76/1, 25 August 1976, p. 70 f.). The
Court found no risk of irreparable prejudice and therefore declined to
order the interim measures. It said it bad no need to decide whether it
had an independent power to order measures to prevent the aggravation or
extension of the dispute (p. 12, para. 36).
Two points may be made. First, although the Court said it had no
need to decide the issue, .it could have issued interim measures on this
;
.basis had it chosen to do so. Second, had the fact that Orders including
auch terms been made in three previous cases settled the matter, the
Court would not have treated it as still open. Since that time interim
measures directed at preventing the aggravation or extension of the
dispute have been issued in three more cases - the Hostages Case, the
US Nicaragua case and the Frontier Dispute case. But in each case
they have appeared alongside Orders direêted to avoiding prejudice in
regard to the execution of a later Judgment. Just as in the period up to
Eastern Greenland case, the issuing of orders to prevent the
aggravation of the dispute did not determine whether the Court has
j
fompetence to make this the sole basie for auch interim measures so the
subject case-law does not determine whether there is auch a separate
discrete basis for interim measures. The United Kingdom contends there
is not. There is not one single case - not even Burkina Faso v. Mali
where interim measures to protect an aggravation of the dispute bad been
issued - save as a companion clause to interim measures to protect State
\ parties rights against irreparable harm. Their purpose is to support
that other, central provisions •. They serve a general function in that
the Court cannat at the time of ordering interim measures foresee the
0036c/CR3/T14/ah - 68 -
future eireumstances that could-prejudice the efficacy of the Court's
judgment. The point is convincingly put by Sztucki in his book where he
says this:
"Every action capable of prejudicing the rights at issue will •
certainly aggravate the dispute, but the opposite is not
necessarily true - certain actions likely to aggravate a
dispute auch as propaganda campaigns, hostile demonstrations,
etc., need not necessarily be prejudicial to auch rights."
So we say that general prevention of the aggravation of the dispute is
not the object of interim measures,as,conceived in Article 41.
The non-independent basis of interim measures for the prevention of
aggravation of the dispute is emphasized by the fact that nearly always 4lt
this provision is directed to both Parties. Only in the Electcicity
Company case and in the Nicaragua/US case was that measure direeted to
the Respondent State alone. Even in a case auch as the Hostages case,
where the unlawfulness of the acta complained of was so apparent at an
early stage as to secure a broad order for interim measures, the part of
the Order that refera to the aggravation of the dispute was directed to
both Parties. Further, the supporting role that auch an Order plays to
the central Order to avold acta that would impair the later judgment, is
evidenced by the fact that in the Anglo-Iranian Oil case the Court
denied the Applicant's request that Iran should "abstain from all
propagande calculated to inflame opinion in Iran" (Pleadings,
Anglo-Iranian Oil Co. case, p. 52).
Finally on this point, the United Kingdom must fi~ly reject the
notion that actions it bas so far taken or that may be under
contemplation constitute an aggravation of the dispute. They are rather J
actions directed at the eomplianee by Libya with its international
obligations. Far from aggravating the dispute they are, in the absence
of acknowledgement by Libya of its responsibility in this matter, the
best means for concluding this controversy in such a way as to satisfy
0036c/CR3/Tl4/ah - 69 -
the prohibition against international terrorism. We find it breathtaking
to assert that, by referring a matter to the Security Council in
accordance vith the Charter provisions, a State could be aggravating a
dispute •
..
Mr. President, Members of the Court, I turn to my next heading that:
C. THE RELIEF SOUGII7' IS DESIGNED 7'0 FErrER THE SECURirY COUNCIL IN THE
EXERCISE OF US PRDPER POWERS
;
The Solicitor General has already drawn.attention to the
long-standing interest of the Security Council in international terrorism
because of its impact on international peace and security, and indeèd
under Article 37 of the Charter, vhere the continuation of a dispute is
likely to endanger the maintenance of international peace and security,
the parties are under a duty to refer it to the Security Council.
Libya apparently now takes the view that if the matter is a legal
one then it is to be resolved by the International Court and that the
Security Council can have no role to play. This has been refined today
by Professor Suy who acknowledges a Chapter VI role for the Security
Council
.· on this matter but rejects the possibility of a Chapter VII
1
role.
)
The United Kingd.ombelieves that Libya is attempting to secure, by
the route of interim measures, the de-legitimising of the Security
Council's proper interest in this matter. The Security Council is fully
entitled to concern itself with issues of terrorism and the measures
needed to address acta of terrorism in any particular case or to prevent
it in the future. The International Court is not in any general sense an
appeal tribunal available to Member States who have not been able to make
their vievs preval! in the Security Council. Mr. President, Members of
the Court, the United Kingdom submits that the interim measures do seek
improperly to interfere vith the Security Council.
0036c/CR3/Tl4/ah - 70 -
Paragraph 7(b) of the Application for Interim Measures asks the
Court to indicate measures - I repeat it very briefly - "to ensure that
no steps are taken whieh would prejudice in any way the rights of Libya •
·.;l
vith respect to the legal proceedings that are the subject of Libya's ..
Application".
Although the Security Council is not mentioned in terms, the
Applicant's unmistakable intention in seeking these measures is to
interfere vith the exercise by. the Securi.ty Council of its Charter
functions, and today Professor Suy has let the cat out of the bag. Let
me remind the Court what he said, and I quote from the text we have
received:
"L'initiative des Parties défenderesses de situer le
différend au niveau du chapitre VII de la charte et de préparer
au sein du Conseil de sécurité des actions collectives contre
la Libye est de nature à mettre en danger les droits de la
Libye sans nier le droit du Conseil de sécurité de s'occuper de
cette affaire dans le cadre du chapitre VI. La Libye demande à
la Cour d'ordonner aux Parties défenderesses d'abstenir
d'entreprendre toute initiative au sein du Conseil de sécurité
visant à porter atteinte aux droits de juridiction dont la
Libye demande la reconnaissance à la Cour."
The Security Council has already called on the Applicant to respond
effectively to the demand of the three Governments and it must therefore
be for the Council itself to decide what would constitute an effective
response. There is no doctrine of United Nations law that says a matter
that starts as a situation under Chapter VI may not eventually be
regarded as a threat to international peace under Chapter VII. That is
for the Security Council to decide and the whole purpose of Libya.'s
request for interim measures is to avoid that possibility. The Security
Council is, of course, given the primary responsibility for the
maintenance of international peace and security under Article 24 of the 'f
Charter. Although it is a primary and not exclusive responsibility, the
key importance of that provision is underlined by the explanation it
0036c/CR3/T14/ah - 71 -
contains tbat this was done "in order to ensure prompt and effective
action by the Security Council". Further, the Security Council shall by
virtue of Article 33, paragraph 1, call where necessary upon the Parties
to settle their disputes, and under Article 36, paragraph 1, the Security
Council may where a dispute, the continuation of which is likely to
endanger the maintenance of international peace and security, recommend
appropriate procedures.
The Security Council is, of course, given .the primary responsibility
for the maintenance of international peace and security under Article 24
!of the Charter. Although it is a primary and not exclusive
responsibility, the key importance of that provision is underlined by the
explanation it contains that this was done "in order to ensure prompt and ·
effective action by the Security Council". Further, the Security Council
shall, by virtue of Article 33(1), call where necessary upon the parties
to settle thel disputes; and under Article 36(1) the Security Council
may, where a disputethe continuation of whi·ch is Ukely to endanger the
maintenance of international peace and security, recommend appropriate
procedures. This is exactly what the Security Council has done in
!
·resolution 731.
l
1 The Libyan submissions have sought to sew the idea that by passing
resolution 731, there is somehow a violation of the obligation to settle
disputes peacefully. But there is no dispute in the Security Council
over the Montreal Convention. There is rather an insistence on certain
action to combat terrorism and resolution 731 is exactly the vehicle for
resolving peacefully that problem.
...
There is something else I should properly bring to the attention of
the Court. Professer Suy claimed this morning that in a draft resolution
circulating among members of the Security Council, it was to be
determined that Libya's refusa! to hand over the two suspects represented
0036c/CR3/T14/ah - 72 -
a threat to international peace and security. Wehave been unable to
find any trace of this wording in the draft and, as I have explained, the
occasion for further action in the Security Council is Libya's failure to
respond promptly and effectively to the set of requirements laid out by
the Security Council in its earlier resolution.
Under Chapter VII, the Security Council's powers are more
significant still and, where it.determines the existence of any threat to
the pesee, breach of the peace or act of aggression (Article 39), it may
decide upon diplomatie or economie measures to give effect to its
decisions. And, indeed, Article 42 makes it clear that it is for the
Security Council to decide whether econom.ic and diplomatie measures
"would be .inadequate or have proved to be inadequate" and, if so, it may
take the necessary military action. The assessments by the Security
Council either of the threat to pesee or that economie and diplomatie
measures are required to give effect to its decisions, or that these
measures are inadequate, these are assessments given alone to the
Security Council to make. The jurisdictions of the Security Council and
International Court are parallel and not mutually exclusive, but that
does not mean that each possesses every competence of the other. They
do, not. And clearly these matters of political appreciation are for the
Security Council alone.
As the International Court said in its-Advisory Opinion in the
Namibia case, "the Court does not possess powers of judicial review or
appeal in respect of decisions taken by the United Nations' organs
concerned". 1
. .
The United Kingdom submits that it would be completely inappropriate
for the Court to indicate interim measures in any form that could be
construed as striking at the Security Council in the exercise of its
0036c/CR3/T14/ah - 73 -·
competences under Chapters VI and VII of the Charter. But the relief
sought in paragraph 7(b) of Libya's application seems evidently to be
inviting the Court down that road. Only the Security Council can decide
what further measures may be necessary to give effect to its decisions.
.. It is not simply a commonplace to note that the Court is a principal
organ of the United Nations. The Dumbarton Oaks proposais show that the
most careful attention was given to the character and statua of this new
Court within the United Nations and the ways in which it should differ
!from that of the constitutions! relationship between the Permanent Court
l
'and the League (see especially, UNCIO, Vol. 13, p. 381 and Vol 14,
pp. 72ff). The Statute forma an integral part of the UNCharter
,(Article 92). The implications of the mutual relations of these various
:principal orsans were not deeply analysed at San Francisco. But the
analysis of Professer Shabtai Rosenne on this issue is poverfully
,persuasive: at the heart of the relationship, he said, is the reality
:that "the will of the Orsanization is made manifest by the actions of
:those orsans within whose sphere of competence a particular matter lies"
(The Law and Pcactice oE the International Court, 2nd rev. ed. at
IP ·9). The Charter does not creste a hierarchical relationship between
the principal orsans. Rather "it imposes limitations on their
activities ••• catione materiae" (ibid., p. 70). It is clear that
matters related to the security of nations, in the sense of political
assessments as to how beat to deal with them, are still within the
competence ratione mateciae of the Security Council. The point is not
- and Mr. President, this is an important distinction - the point is not
that the International Court may not indicate interim measures relating
to legal issues concerned with pesee and security when the Security
Council is also seized of some facet of the matter. It is clear from the
0036c/CR3/Tl4/ah - 74 -
Hoatages and Aegean Sea cases that it can. Rather, the point is that
the International Court should not, through the exercise of its interim
measures jurisdiction, interfere vith the Security Council in doing what
it is expressly required to do under the Charter.
..~·
It will be recalled that, on the 4 December 1979, the Security
Council unanimously passed resolution 457 (1979) calling for the
immediate release of the American hostages held in Teheran. The Court,
in its Order of 15 December 1979, unanimously granted interim measures
which included the call that Iran should ensure the immediate release of
the prisoners held. The Court had no hesitation about acting upon a
matter whic.h was also before the Seeurit.y Cotmc.il. The Court acted under
Article 41 in a way that closely paralleled the efforts of the Security
Council, acting within its own competence. And in the Aegean Sea
case, the Court dec.ided not to grant interim measures exactly because the
purposes for which they were requested were already being sec.ured by the
Security Council.
Each of the organe must exercise that proper jurisdiction in a way
that supports the objectives of the Charter and respects their common
statua as principal organa. For example, the Security Council should not
choose in relation to any particular dispute to pass any resolution which
contradicts any binding decision of the Court on that matter. And the
Court will not allow its jurisdiction to be used as an appeal court from
the political assessments made :by the Security Couneil.
It necessarily follows that the Court should never, when exercising
its jurisdiction to indicate interim measures under Article 41 of its
Statute, do so if the result would be to interfere with the Security
Council in the exercise of its duties and powers under Chapter VI or VII
of the Charter or even run the risk of doing so. Above all, the Court
should never ind!cate interim measures designed to protect a State
against the decisions of the Security Council.
0036c/CR3/T14/ah - 75 -
o. rhe relief seeks to preelude the Seeurity Couoeil froa aetin& in
relation to the vider dispute
It is not the position of the United Kingdom that because there la a
separate issue before the Security Council, the International Court may
not properly concern itself with the Application instituting proceedings
filed by Libya on 3 March 1992. In the Hostages case Iran bad claimed
that the issues before the Court were in reality part of a wider dispute
between the countries, and that therefore the Court lacked competence to
deal with them. That contention was rightly rejected by the Court and no
auch comparable contention is being made by the United Kingdom. Rather,
e. we draw to the Court's attention the fact that the Application
instituting proceedings filed by Libya makes claims relating to alleged
violations of the Montreal Convention. Whether the Court has substantive
jurisdiction over the merita under Article 14(1) of that Convention - and
·indeed, whether Libya asserts real or non-existent rights arising under
·that instrument - that remains for the Court to determine under its own
procedures. The fact that a different issue is before the Security
Council is irrelevant to that future determination of jurisdiction by the
Court.
But what is relevant, it is respectfully submitted, is the
!appreciation that interim measures should not be indicated which are
·intended to and would have an impact upon this separate dispute. There
:fsbefore the Security Council, as has already been explained, a
situation concernlng international terrorism, and issues arise as to what
Libya is required to do under general international law both in respect
of the events surrounding the Lockerbie massacre and the prevention of
terrorism in the future. These are not the issues that Libya has chosen
to bring to the Court; but the interim measures are an attempt to
interfere with the Security Council in relation to these different
matters.
0036c/CR3/T14/ah - 76 -
And that reality is not avoided by the wording of paragraph 7 (b)
of the Request for the Indication of Provisional Measures. That clause
aska the Court to entai! that no steps are taken that would prejudice
Libya's rights with respect to the legal proceedings. But 7 (a) seeks
to ~oin the United Kingdom from taking action calculated to achieve the
surrender of the accused individuals to any jurisdiction outside Libya.
And a parallel request is made so to enjoin the United States.
The United States, Fr~ce .and the United Kingdom informed the
Security Council that they had presented specifie demanda to Libya for
the surrender for trials of the accused; the disclosure of all
information; the acceptance of responsibility for acta o·f State
intelligence officers (see S/23308, Ann., p. 2 (D3)). These countries
have also demanded that Libya "coneretely and definitively ••• cease all
forma of terrorist action and all assistance to terrorist groups. Libya
must promptly, by concrete actions, prove its renunciation of terrorism"
(see S/23309, Ann., p. 3 (D4)).
The requests referred to in resolution 731 are a package. Taken
together, they are what is needed to provide an effective contribution to
the elimination of terrorism - the establishment of guilt or innocence in
front of the appropriate courts of Scotland or the United States and, in
the case of UTAFlight 772, in front of the appropriate courts of
France; the aeceptanee of responsibility; the making of reparations;
the cessation of support for terrorism; and the public and real
renunciation of terrorism.
As these elements are an integral whole, any interim measures
directed at enjoining either the United Kingdom or the United States in
respect of any one of these elements bas no object unless they are aimed
at interfering with future action by the Security Council. Moreover the
Court has no power to enjoin the Council as auch, or to enjoin other
0036c/CR3/Tl4/ah - 77 -
members of the Council or other members of the United Nations who are not
'
parties in this case before the Court. This la a further reason we
)
submit why the Court should not act in the manner requested by the
Applicant. Moreover, the relief sought by Libya under paragraph 7 (a)
of ita Requeat la inconsistent with Libya's own duties under Article 24
of the Charter. That Article provides that: "Member States agree that
in carrying out its duties the Security Council acta on their behalf."
Conclusion
May it please the Court: we understand vell why Libya has
instituted an application for interim measures. It is not because there
are rights in dispute between Libya and the United Kingdom which are in
urgent danger of being irreparably harmed. We have shown the Court that
the rights Libya founds itself on in the Montreal Convention are in fact
illusory; that until the application to the Court, they had never
constituted the subject-matter of a dispute between the Parties; and
that Libya's alleged rights are in any event in no danger of irreparable
harm. No, Libya's real reason for seeking an Order for interim measures
la entirely different. It is tactical. Libya seeks tactical advantages
in relation to other international fora that may follow from an
application for interim meausures - regardless of whether the measures
are warranted, and regardless of whether they are granted. Interim
measures heighten the political impact of judicial proceedings. They
attempt to dlctate the agenda for the State against whom they. are sought,
by determining its priorites and by endeavouring to limit its options.
And, of course, Libya will hope that its interim measures application
will also establish a presumption in favour of the Court's competence,
which the Court has yet substantively to decide.
To succeed ln lts Application for interim measures Libya has to
succeed in every one of the following:
0036c/CR3/Tl4/ah - 78 -
(1) it must show prima facie jurisdiction over a dispute;
(2) it must show tbat its claimed rights are not Ulusory;
(3) it must show that its proposed interim measures are properly directed
towards protecting the rights that are the subject of the dispute;
(4) it must show that the Court's judgment la in danger of being rendered
without effect unless the United Kingdom is restrained by interim
measures;
(5) it must show that, this irreparable barm to effective judgment is
urgent;
(6) it must show that, even if all the tests of prima facie jurisdiction ·~
and all the tests of Article 41,are met, it is appropriate for the
Court to indicate the measures requested.
If Libya falls in any one of the above, interim measures may not be
awarded. The United Kingdom submits that Libya falls on every head and
asks the Court to decline to indicate interim measures.
May it please the Court, that concludes the submissions for the
United Kingdom.
The ACTINGPRESIDENT: Thank you, Professer Rosalyn Higgins. I now
understand that the presentation by the United Klngdom ln the case by
Llbya against the United Kingdom is completed. Tomorrow the Court meets
at 10 o'clock to hear the presentation of the United States in the case
brought by Libya against the United States.
The Court will adjourn until tomorrow morning at 10 o'clock.
The Court rose at 6.10 p.m.
0036c/CR3/Tl4/ah
Audience publique tenue le jeudi 26 mars 1992, à 15 heures, au Palais de la Paix, sous la présidence de M. Oda, vice-président