INTERNATIONAL COURT OF JUSTICE
Telefax co1o 36499 28).Telex 32323. Communiqué
unofficial
for immediate release
No. 92/9
14 April 1992
Questions of InterPretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America)
Request for the Indication of Provisional Measures
The Court decides not to exercise its power
to indicate provisional measures
The following information is communicated to the Press by the
Registry of the International Court of Justice:
Today, 14 April 1992, the International Court of Justice made an
Order in the case concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahlriya v. United States of America), by which
it found, by 11 votes to 5, that the circumstances of the case are not
such as to require the ex~rcise of its power under Article 41 of the
Statute to indicate provisional measures.
The Court was composed as follows: Vice-President Oda, Acting
President; President Sir Robert Jennings; Judges Lachs, Ago, Schwebel,
Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen,
Aguilar Mawdsley, Weeramantry 1 Ranj eva, Aji bol a; Judge ad hoc El-Kosheri.
• *
Acting President Oda and Judge Ni append each a declaration to the
Order of the Court; Judges Evensen, Tarassov, Guillaume and Aguilar
Mawdsley a joint declaration.
Judges Lachs and Shahabuddeen append separate opinions; and
Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc
El-Kosheri append dissenting opinions to the Order.
The printed text of the Order and of the declarations and opinions
appended to lt will become available in due course (orders and enqu~ries
should be addressed to the Distribution and Sales Section, Office of the
United Nations, 1211 Geneva 10; the Sales Section, United Nations,
New York, N.Y. 10017; or any appropriately specialized bookshop.)
1772f - 2 -
A summary of the Order is given below. It has been prepared by the
Registry for the use of the Press and in no way involves the
responsibility of the Court. It cannat be quoted against the text of the
Order, of which it does not constitute an interpretation.
*
* *
In its Order, the Court recalls that on 3 March 1992 the Libyan Arab
Jamahiriya instituted proceedings against the United States in respect of
"a dispute ••• between Libya and the United States over the
interpretation or application of the Montreal Convent.ion" of
23 September 1971, a dispute arising from the aerial incident that
occurred over Lockerbie, Scotland, on 21 December 1988 and that led to a
Grand Jury of the.United States District Court for the District of
Columbia, indicting, on 14 November 1991, two Libyan nationals, charging,
inter alla, that they bad "caused a bomb to be placed aboard [Pan Am
Flight 103] ••• , which bomb bad exploded causing the aeroplane to crash".
The Court then recites the history of the case. It refera to the
allegations and submissions made by Libya in its Application in which it
asks the Court to adjudge and declare:
"!Al that Libya has tully complied with al! of itsobligations
under the Montreal Conventionj
ihl that the United States bas breached, and is continuing to L~--
breach, 1ts legal obligations to Libya under Articles 5, '·...._
paragraph 2, 5, paragraph 3, 7, 8, paragraph 2, and 11 of
the Montreal Convention;
fkl that the United States is under a legal obligation
immediately to cease and desist from auch breaches and
from the use of any and ali force or threats against
• Libya, including the threat of force against Libya, and
from ali violations of the sovereignty, territorial
integrity, and the political independence of Libya."
The Court also refera to Libya's request (filed, like the Application, on
3 March 1992, but later in the day) for the indication of the following
provisional measures:
"hl to enjoin the United States from taking any action against
Libya calculated to coerce or to compel Libya to surrender
the accused individuals to any jurisdiction outside of
Libya; and
!Q1 to ensure that no steps are taken that would prejudice in
any way the rights of Libya with respect to the legal
proceedings that are the subject of Libya's Application."
1772f - 3 -
The Court further refera to the observations and submissions
presented by both Libya and the United States at the public hearings on
the request for the indication of provisional measures held on 26, 27 and
28 March 1992.
1
The Court then takes note of the joint declaration issued on
27 November 1991 by the United States of America and the United Kingdom
following on the charges brought by a Grand Jury of the United States
District Court for the District of Columbia against the two Libyan
nationale in connection with the destruction of Pan AmFlight 103, and
which reade:
"The British and American Governments today declare that
the Government of Libya must:
- surrender for trial all those charged with the crime; and
aecept responsibility for the actions of Libyan officiais;
- disclose all it knows of this crime, including the names of
all those responsible, and allow full access to al!
witnesses, documents and other material evidence, including
all the remaining timers;
- pay appropriate compensation.
We expect Libya to comply promptly and in full."
The Court also takes note of the fact that the subject of that
declaration was aubsequently considered by the United Nations Security
Council, which on 21 January 1992 adopted resolution 731 {1992), of which
the Court quotes inter alia the fo1lowing passages:
"Deeply concerned over the resulta of investigations,
which implicate officiais of the Libyan Government and which
are contained in Seeurity Council documents that include the
requests addressed to the Libyan authorities by France, •.. the
United Kingdom of Great Britain and Northern Ireland ••• and
the United States of America .•. [S/23308], ••• in connection
with the legal procedures related to the attacks carried out
against Pan American flight 103 and Union de transports aériens
flight 772,
2. Strongly deplores the fact that the Libyan Government
has not yet responded effectlvely to the above requests to
cooperate fully in establishing responsibility for the
terrorist acta referred to above against Pan American
flight 103 and Union de transports aériens flight 772;
3. Urges the Libyan Government immediately to provide a
full and effective response to those requests so as to
contribute to the elimination of international terrorism;"
The Court further notes that on 31 March 1992 (three days after the
close of the hearings) the Security Gouncil adopted resolution 748 (1992)
stating inter alta that the Security Council:
1772f - 4 -
.................................................................... ,.,.
Deeply concerned that the Libyan Government has still not
provided a full and effective response to the requests in its
resolution 731 (1992) of 21 January 1992,
Convinced that the suppression of acta of international
terrorism, including those in which States are directly or
indirectly involved, is essentiel for the maintenance of
international peace and securi.ty,
.................................................... Il> ......................
Determining, in this context, that the failure by the
Libyan Government to-demonstrate by concrete actions its
renunciation of terrorism and in particular its continued
failure to respond fully and effectively to the requests in
resolution 731 (1992) constitute a threat to international
peace and security,
..................................Il..........I........................ .
Acting under Chapter VII of the Charter,
1. Decides that the Libyan Government must now comply
without any further delay with paragraph 3 of resolution 731
(1992) regarding the requests contained in documents S/23306,
S/23308 and S/23309;
2. Decides also that the Libyan Government must commit
itself definitively ta cease all forŒs of terrorist action and
all assistance to terrorist groups and that it must promptly,
by concrete actions, demonstrate its renunciation of terrorism;
3. Decides that, on 15 April 1992 all States shall adopt
the measuresset out below, which shall apply until the
Security Council decides that the Libyan Government bas
complied with paragraphe 1 and 2 above;
•
....................... ,.,.......................... ,................,..
7. Calls upon all States, including States not members of
the United Nations, and all international organizations, to act
strictly in accordance with the provisions of the present
resolution, notwithstanding the existence of any rights or
obligations conferred or imposed by any international agreement
or any contract entered into or any licence or permit granted
prier to 15 April 1992."
The Court observes that Document S/23308, to which reference was
made in resolution 748 (1992), included the demanda made by the
United States of America and the United Kingdom in their joint
declaration of 27 November 1991, as set out above.
After having referred to the observations on Security Council
resolution 748 (1992) presented by bath Parties in response to the
Court's invitation (as vell as by the Agent of the United States in an
earlier communication), the Court goes on to consider as follows:
1772f - 5 -
"Whereas, the Court, in the context of the present
proceedings on a request for provisional measures, has, in
accordance with Article 41 of the Statute, to consider the
circumstances drawn to its attention as requiring the
indication of auch measu~es but cannat make definitive
findings either of fact or of law on the issues relating to the
merita, and the right of the Parties to contest auch issues at
the stage of the merita must remain unaffected by the Court's
decision;
Whereas both Libya and the United. States, as Members of
the United Nations, are obliged to accept and carry out the
decisions of the Security Council in accordance with Article 25
of the Charter; whereas the Court, which is at the stage of
proceedings on provisional measures, considera that prima facie
this obligation extends to the decision contained in
resolution 748 (1992); and whereas, in accordance with
Article 103 of the Charter, the obligations of the Parties in
that respect prevail over their obligations under any ether
international agreement, including the Montreal Convention;
Whereas the Court, while thus not at this stage called
upon to determine definitively the legal effect of Security
Council resolution 748 (1992), considera that, whatever the
situation previous to the adoption of that resolution, the
rights claimed by Libya under the Montreal Convention cannet
now be regarded as appropriate for protection by the indication
of provisiona1 measures;
Whereas, furthermore, an indication of the measures
requested by Libya would be 1ikely to impair the rights which
appear prima facie to be enjoyed by the United States by virtue
of Security Counci1 resolution 748 (1992);
Whereas, in arder to pronounce on the present request for
provisional measures, the Court is not called upon to determine
any of the other questions which have been ra.ised before it in
the present proceedings, including the question of lts
jurisdiction to entertain the merita of the case; and whereas
the decision given in these proceedings in no way prejudges any
sueh question, and leaves unaffeeted the rights of the
Government of Libya and the Government of the United States to
submit arguments in respect of any of these questions;
For these reasons,
THE COURT,
By eleven votes to five,
Finds that the circumstances of the case are not auch as
to require the exercise of its power under Article 41 of the
Statute to indicate provisional measures."
1772f Annex to Press Communiqué No, 92/9
Déclaration of vice-President Oda. Acting President
Acting President ODAappended a declaration concurring with the
Court's decision but expressing hia view that it ahould not have been
based solely on the conaequen~e ofs Security Council resolution 748,
aince this suggested the possibility that, prior to the adoption of the
resolution, the Court could have reached legal conclusions with effects
incompatible with the Council's actions, and the Court might in that case
be blamed for not having acted sooner. As it happened, the
Security Council, applying its own logic, acted with haste in adopting
its new resolution before the Court could have reached a considered
decision, a fact of vhich it must have been aware.
Acting President Oda is satiafied that the Court possessed
jurisdiction prima facie, despite the six-month rule in Article 14 (1) of
the Montreal Convention, since the circumstances had appeared to leave no
room to negotiate the organization of an arbitration.
However, the·essential right of which the protection was claimed,
that of not being forced to extradite one's own nationale, was a
sovereign right unâer general international law, whereas the
subject-matter of Libya's Application consisted of specifie rights
c1aimed under the Montreal Convention. Given the principle that the
righta sought to be protected in proceedings for provisional measures
must relate to the subject-matter of the case, this meant that the Court
vould in any case have bad to decline to indicate the measures
requested. Such a mismatch between the abject of th~ Application and the
rights sought to be protected ought, in the view of the Acting President,
to have been the main reason for taking a negative decision, which would
have been appropriate no lesa before than after the adoption of
resolution 748.
Declaration of Judge Ni
Judge Ni, in his Declaration, expresses his view that, according to
the jurisprudence of the Court, the fact that a matter is before the
Security Counci1 should not prevent it being dealt with by the Court.
Although both organe deal with the same matter, there are differing
points of emphasis. In the instant case, the Security Council, as a
po1itical organ, is more concerned with the elimination of international
terrorism and the maintenance of international peace and security, while
the International Court of Justice, as the principal judicial organ of
the UN, is more concerned vith legal procedures auch as questions of
extradition and proceedings in connection with prosecution of offenders
and assessment of compensation, etc.
Concerning Libya's request for provisional measures Judge Ni refera
to the provisions in the 1971 Montreal Convention for the Supression of
Unlawful Acta against the Safety of Civil Aviation on which Libya
relies. According to Article 14 (1) of that Convention, any one of the
Parties to a dispute may invoke jurisdiction of the International Court
of Justice if within six months from the date of the request for
arbitration no agreement is reached on the organization of the
arbitration. In this case, Libya's proposed arbitration by a letter of
18th January 1992, only one-and-a-half months had elapsed before Libya
instituted proceedings in the International Court of Justice on 3rd March
1992.
1772f - 2 -
Judge Ni considera that Libya's request should be denied on the sole
ground of the non-fulfilment of the six-month period requirement, without
having to decide at the same time on the ether issues. Consequently,
Libya will not be prevented from seeking a remedy of the Court in
accordance with the provisions of the 1971 Montreal Convention, if,
months later, the _dispute still subsista and if the Applicant so desires.
Joint declaration of Judges Evensen. Tarassov. Guillaume and Aguilar
Judges Evensen, Tarassov, Guillaume and Aguilar, in a joint
declaration, expressed their complete agreement witb the decision of the
Court, but made some additions! commenta. They stressed that, before the
Security Council became involved in the case, the United States and the
United Xingdom bad been entitled to request Libye to extradite the
accused and, to that end, to take any action consistent with
international law. For its part, Libya was entitled to refuse auch
extradition and to recap in that connection that, in cornmonwith the law
of many ether countries, its domestic law prohibits the extradition of
nationals.
The authors then showed that, in this particular case, that
situation was not considered satisfactory by the Security Council which
was acting, with a view to combatting international terrorism, within the
framework of Chapter VII of the United Nations Charter. The Council
accordingly decid.ed that Libye should surrender the two accused to the
countries that bad requested their extradition.
Onder those circumstances, Judges Evensen, Tarassov, Guillaume and
Aguilar take the view that the Court, pronouncing on a request for the
indication of provisions! measures submitted by Libya in arder to
preserve the legal situation existing prier to the adoption of the
Security Council resolutions, was fully justified in noting the changes
that bad been made to that situation by those resolutions. It was also
fully justified in holding that, as a consequence, the circumstances of
the case were not auch as to require the exercise of its power to
indicate auch measures.
Separate Opinion of Judge Lachs
The present cases, and the necessity for the Court to take an early
decision on an interlocutory request, have brought out into the open
problems of jurisdiction and what is know as sub 1udice. In fact the
Court is the guardian of legality for the international community as a
whole, within and without the United Nations. Tbere is no doubt that the
Court's task is "to ensure respect for international law ••. "
(I.C.J. Reports 1949, p. 35). It is its principal guardian. In the
present case the wider issue of international terrorism bas not only been
on the agenda of the Security Council but the latter adopted
resolutions 731 and 748. The arder made should not be seen as an
abdication of the Court's powers. Whether or not the sanctions ordered
by resolution 748 have eventually to be applied, it is in any event to be
hoped that the two principal organs concerned will be able to operate
with due consideration for their mutuel involvement in the preservation.
of the rule of law.
1772f - 3 -
Separate opinion of Judge Shahabuddeen
In his separate opinion, Judge Shahabuddeen thought that Libya bad
presented an arguable case for an indication of provisional measures but
that Security Council Resolution 748 (1992) bad the legal effect of
rendering unenforceable the rfghts claimed by Libya. The decision of the
Court, he said, resulted not from any collision between the competence of
the Security Council and the competence of the Court, but from a
collision between the obligations of Libya under the Resolution of the
Securlty Council and any obligations which Libya had under the Montreal
Convention. Under the Charter, the obligations under the Resolution of
the Security Counci1 prevailed.
Judge Shahabuddeen noted that the Respondent's demand for the
surrender of the two accu&ed Libyan nationale was based largely on the
view that an impartial trial could not be bad in Libya. However, the
Respondent's demand that "Libya ••• must pay appropriate compensation •..
promptly and in full" presupposed a determination by the Respondent that
the accused were guilty, since the responsibility of the Libyan State was
premised on the guilt of the accused. Consequently, there was an issue
as to possible prejudgment of the case by the Respondent.
Dlssentina ooinion of Judge Bed1aoul
Judge MohammedBedjaoui proceeds from the idea that there exist two
altogether distinct disputes, one legal, the other practical. The former
concerna the extradition of two nationale and ls dealt with, as a legal
matter, before the International Court of Justice at the request of
Libya, whereas the latter concerna the wider question of State terrorism
as well as the international responsibility of the Libyan State and, for
its part, is being dealt with, politically, before the Security Council
at the request of the United Kingdom and the United States.
Judge Bedjaoui considera that Libya ~as fully within its rights in
bringing before the Court, with a vi.ew to 1ts judicial settlement, the
dispute concerning the extradition, just as the Uni.ted Kingdom and the
United States were fully within their rights in bringing before the
Security Council, with a view to its political settlement, the dispute on
the international responsibility of Libya. The situation should, in the
opinion of Judge Bedjaoui, be summarized as follo~s: he is of the view,
on the one hand, that the rights claimed by Libya exist prima facie and
that all of the conditions normally required by the Court for the
indication of provisional measures are fulfilled in this case so that
these rights may be preserved in accordance with Article 41 of the
Statute of the Court. And it is on this point that Judge Bedjaoui
expressed reservations with regard to the two Orders of the Court. But
it should also be noted that Security Council resolution 748 (1992) bas
annihilated these rights of Libya, without it being possible, at this
stage of provisional measures, of, in other words, a prima facie
pre-examination, for the Court to take it upon itself to decide
prematurely the substantive question of the constitutional validity of
that resolution, for which reason the resolution benefits from a
presumption of validity and must prima facie be held to be lawful and
bindlng. He is therefore in agreement with the Court as to this second
point.
1772f - 4 -
The situation thus characterized, with rights that deserve to be
protected through the indication of provisional measures but which are
almost immediately negated by a resolution of the Security Council that
deserves to be considered valid prima facie, does not fall precisely
within the bounds of Article 103 of the Charter; it exceeds them
somewhat.
Subject to this nuance, it is clear that the Court could not but
take note of the situation and hold that at this stage of the proceedings
such a "conflict", governed by Article 103 of the Charter, resulted, in
effect in any indication of provisional measures being ineffectual. But
the operative parts of the two orders remain at the threshold of the
whole operation inasmuch as the Court states therein that, having regard
to the circumstances, there is no resson for it to exercise its power of
indicating provisions! measures, The qualification made by ·
Judge Bedjaoui is that in the present case the effective exercise of this
power was justified; but he also observes that the effects of that
exercise bad been nullified by resolution 748 (1992), Judge Bedjaoui
therefore arrives, concretely, at the same result as the Court, via an
entirely different route but also with the important nuance mentioned, as
a result of which he does not reject the request for interim measures
but, rather, declares that its effects have disappeared.
That said, Judge Bedjaoui is of the view that the Court could not
have avoided ordering provis.ional measures on the basie of the
circumstances of the case submitted to it, even though the effects of
auch a decision were negated by resolution 748 (1992), It should be
added that, even assuming that the majority entertained some doubt, which
he personally did not share, as to whether the requesting State could
fulfil one or another of the prerequisites to an indication of
provisional measures, the Court could have made use of the power to
indicate itself any provisional measure that it would have considered to
be more appropriate than those sought by the requesting State.
Consequently the Court could have decided to indicate provisional
measures in the very general terms of an exhortation to aU the Parties
not to aggravate or extend the dispute. Thus, assum.ing that the Court
would in this case have been justified in considering that one or another
prerequisite to the indication of certain specifie measures was lacking,
it had at least one resource, namely, to adopt a general, distinct,
measure taking the form of an appeal to the Parties not to aggravate or
extend the dispute, or of an exhortation addressed to them to come
together for the purpose of settling the dispute amicably, either
directly, or through the Secretariat of the United Nations or that of the
Arab League, thus conforming to what is nowadays established practice,
Moreover, given the grave circumstances of the presente case, would
an indication of a provisional meastire of this nature not have been an
elegant way of breaking out of the impasse arising from the opposition
between, on the one hand, the more specifie provisional measures that the
Court should have ordered to meet the wishes of the requesting State and,
on the other, Security Council resolution 748 (1992), which would in any
event have negated the effects of auch an arder? This would have been an
elegant way of sidestepping the main difficulty, and also a really
beneficiai way of doing so, in the interests of everyone, by assisting in
the settlement of the dispute through methods that appear likely to be
used.
1772f - 5 -
Judge Bedjaoui therefore regrets that the Court was unable to
indicate neither specifie provisional measures of the kind sought by the
requesting States, nor, proprio motu, general measures, a way that would
have enabled it to make its own positive contribution to the settlement
of the dispute. This is why, in 1he last analysis, he could not but vote
against the two Orders.
Dissentina opinion of Judge Weeramantry
Judge Weeramantry, in his Dissenting Opinion, expressed the view
that the circumstances invoked by the applicant appeared prima facie to
afford a basie for the Court's jurisdiction.
The Opinion draws attention to the unique nature of the present case
in that it is the first time the International Court and the Security
Council have been approached. by opposite parties to the same dispute,
This raised new questions which needed to be discussed in the light of
the respective powers of the Council and the Court under the United
Nations Charter and in the light of their relationship to each ether.
After an examination of the relevant articles of the Charter and of
the travaux préparatoires of Articles 24(2) and (1) in particular, the
Opinion concludes that the Court is not debarred from considering matters
which the Security Council bas considered under Chapter VI. Furthermore,
the Securi ty Council, in discharging i ts d.uti es i s requi red to act in
accordance with the principles of international law,
The Court is a coordinate body of the Security Council and, in its
proper sphere of dete~ining disputes, examines and decides questions of
international law according to legal principles and judicial techniques,
ln regard to matters properly before it, the Court's function is to make
judicial decisions according to law and it would not be deflected from
this course by the fact the same matter has been considered by the
Security Council. However, decisions made by the Security Council under
Chapter VII are prima facie binding on all Members of the United Nations
and would not be the subject of examination by the Court. Judge
Weeramantry concludes that Resolution 731 is only recommendatory and not
binding but that Resolution 748 is prima facie binding.
The Opinion concludes that provisional measures can be indicated in
such a manner as not to conflict with Resolution 748 and indicates such
measures proprio motu against beth parties preventing such aggravation or
extension of the dispute as might result in the use of force by either or
bath parties. This action is based on Article 41 of the Statute and
Articles 73, 74 and 75 of the Rules of Court.
Dissenting opinion of Judge Ran1eva
ln his dissenting opinion, Judge Ranjeva considera that the present
dispute goes beyond the framework of relations between the Parties to the
dispute and concerna the right of all States bound by the Montreal
Convention. Given his right to choose, in accordnce with the principle
aut dedere aut 1udicare, the Applicant was justified in requesting the
Court to indicate provisional measures; this right was incontestable
until the date of the adoption of resolution 748 (1992). The fundamental
change of circumstances that occurred subsequent to the filin& of the
1772f - 6 -
Application, without any alteration .in the factual c.ircumstances of the
case, prevented the Court from exerc.ising .its legal funct.ion to the full
extent of .its powers.
But, contrary to the opinion of the major.ity of the Members of the
Court, Judge Ranjeva considera that, bearing in mind the development of
case-law relat.ing to the application of Articles 41 of the Statute and 75
of the Rules, as well as the autonomous nature of an appeal by the Court
to the Part.ies in relat.ion to the indication of provisional measures
(case concerning Passage through the Great Be1t CFinland v. Denmark}),
measures consisting, among other things, of an appeal to the Parties
enjoining them to adopt a 1ine of conduct which would prevent the
aggravation or extension of the conflict. For such was the posture of
the Court in the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) and the Frontier
Dispute cases.
In the view of Judg~ Ranjeva, the new dimensions of the problem
meant that the Court was unable to 1imit itself to a passive approac.h to
its legal function, which, in a dynamic sense, falls within the ecope of
the fundamental obl.igation set out in Article 1, paragraph 1, of the
Charter of the United Nations, namely, the maintenance of peace w.ithin
the context of its role.
D.issenting opinion of Judge A1ibola
Judge Ajibola, in his dissenting opin.ion, regrets that the Court, by
a majority dec.ision, declined to indicate provisional measures even
though Libye established sufficient warrant for its doing so under the
applicable provisions of the Court's Statute and Rules.
He strongly believes that, even if the Court concluded that such
measures should be declined because of the possible effect of
Security Council resolution 748, the resolution did not raise any
absolute bar to the Court's making in its Order pronouncements clearly
extraneous to the resolution and definitely not in conflict with it.
He goes on to stress the Court's powers, especially under Article 75
of its Rules, to indicate provisional measures proprio motu, quite
independently of the Applicant's request, for the purpose of ensuring
peace and security among nations, and in particular the Parties to the
case. Jt should therefore, pendente lite, have indicated provisional
measures based on Article 41 of the Statute and Articles 73, 74 and 75 of
the Rules of Court, with a view to preventing any aggravation or
extension of the dispute which might result in the use of force by either
Party or by both Parties.
Dissggting opinion of Judge ad hoc 11-Kosheri
Judge ad hoc El-Kosheri, in his dissenting opinion, focused mainly
on the legal reasons which led him to maintain that paragraph 1 of
Security Council resolution 748 (1992) should not be considered having
any legal effect on the jurisdiction of the Court, even on prima fade
basie, and accordingly the Libyan request for provisional measures bas to
be evaluated in conformity with habitua! pattern as reflected in the
1772f - 7 -
established jurisprudence of the Court. In the light of the rules relied
upon in the recent cases he came to the conclusion that the Court should.
act proprio motu to indicate measures having for effect:
- pending a final decision of 1he Court, the two suspects whose names
are identified in the present proceedings should be placed under the
custody of the governmental·authorities in another State that could
ultimately provide a mutually agreed upon convenient forum for their
trial;
- moreover, the Court could have indicated that the Parties should
each of them ensure that no action of any kind is taken which might
aggravate or extend the dispute submitted to the Court or likely to
impede the proper administration of justice.
1772f
- Request for the Indication of Provisional Measures
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) - Request for the Indication of Provisional Measures