Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) - Request for the Indication of Pro

INTERNATIONALCOURTOF JUSTICE

Palace2517KJThe Hague.Tel.(07-3924441).CablesIntercouT,heHague.

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unofficial
for immediale release

No. 92/8
14 April1992

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Lockerbie(LibvanArab Jamahiriva v. UnitedKinadom)

Reauest for he Indicationof Provisional Measures

The Courtdecidesnot to exerciseits Dower
to indicate~rovisionalmeasures

The following informations communicatedto the Pressby the
Registry ofthe International Courotf Justice:

Today,14 April1992,the International Cour of Justicemade an
Orderin the caseconcemingguestionsof Inter~retatioa nnd Avvlication
of the 1971MontrealConvention arisinnfrom theAerial Incident at
Lockerbie (LibvanArabJamahiriva v.u J Z , by which it found,
by 11 votesto 5, thatthe circumstance of the caseare not suchas to
requirethe exerciseof its powerunderArticle41 of the Statuteto
indicate provisiona measures.

The Courtwas composedas follows: Vice-PresidentOda,Acting
President; PresidentSir RobertJennings; JudaesLachs, Ago, Schwebel,
Bedjaoui, Ni,Evensen,Tarassov,Guillaume, Shahabuddeen,
Aguilar Mawdsley, Weeramantry,anjeva,Ajibola; Judnead hoc El-Kosheri.

Acting PresidenOtda and JudgeNi appendeach a declaratioto the

Orderof the Court;J'udges Evensen,Tarassov,Guillaumeand Aguilar
Mawdsley a joindteclaration.

Judges Lachsand Shahabuddeeappendseparateopinions; and
Judges Bedjaoui,Weeramantry,Ranjeva,Ajibolaand Judgead hoc
El-Kosheri appenddissentingopinionsto the Order.

The printedtextof the Orderand of the declarationsand opinions
appendedto it will becomeavailablein due course(orders and enquiries
shouldbe addressedto theDistribution and Sales Section,Officeof the
United Nations,1211Geneva10; the SalesSection,United Nations,
New York,N.Y. 10017; orany appropriately specializ bookshop.) A summaryof the Orderis givenbelow. It has been preparedby the
Registryfor theuse of the Pressand in no way involvesthe
responsibilityof the Court. It cannotbe quoteagainst thetextof the
Order,of which it doesnot constitutan interpretation.

In its Order,the Court recallthaton 3 March1992theLibyanArab
Jamahiriyainstituted proceedingagainst thUnitedKingdomin respect
of "a dispute...betweenLibyaand theUnitedKingdomover the
interpretation or applicatiofntheMontrealConvention"of
23 September1971, adisputearisingfromthe aerialincidentthat
occurred overLockerbie,Scotland,on 21 December 198and thatled, in
November1991,to the Lord Advocatoef Scotland charging twobyan
national8with, interalia,having"causeda bomb to be placed aboard w
[PanAm Flight1031 ...,whichbomb hadexplodedcausingthe aeroplaneto
crash".

The Courtthenrecitesthehistoryof the case. It refersto the
allegationsand submissionmade by Libya in its Applicationnwhichit
asks the Courtto adjudgeand declare:

"m thatLibyahas fullycompliedwith al1 of its obligations
undertheMontrealConvention;

rn that theUnitedKingdomhas breached,and is continuinto
breach, its legal obligationso LibyaunderArticles5,
paragraph2, 5, paragraph3, 7, 8, paragraph2, and 11 of
the MontrealConvention;

that the UnitedKingdomis undera legalobligation
immediatelyto ceaseand desistfromsuchbreachesand
from theuse of any andal1 forceor threats against
Libya,including the threaof forceagainstLibya,and
fromal1 violationsof the sovereigntyterritorial
integrity,and thepoliticalindependenceof Libya."

The Court also referso Libya'srequest (filed,ike theApplicationon
3 March 1992,but laterin the dayfor the indication othe following
provisionalmeasures:

"m to enjointheUnitedKingdomfromtakingany action
againstLibyacalculated tocoerceor to compel Libyto
eurrenderthe accused individuatlsany jurisdiction
outsideof Libya; and

rn to ensurethatno steps aretakenthat wouldprejudice in
any waythe rightsof Libya withrespectto the legal
proceedingsthatare the subject ofibya'sApplication." The Court further refers to the observations and submissions
presented by both Libyaand the United Kingdomat the public hearings on
the requestfor the indicatioo nf provisional measures hel on 26 and
28 March 1992.

The Court then tak.eno& of thejoint declaration issuedon
27 November 1991 by the UnitedKingdomand the United Statesof America
followingon the chargesbrought bythe Lord Advocateof Scotlandagainst
the two Libyan nationals in connectionwith the destructionof Pan Am
Flight 103, andwhich reads:

"The Britishand American Governments toda dyeclarethat
the Governmentof Libyamust:

- surrenderfor trialal1 thosechargedwith thecrime; and
acceptresponsibility fot rhe actions of Libyao nfficials;

- discloseal1 it knows of this crime,includingthe names of
al1 those'responsiblea,nd allow full accessto al1
witnesses,~documenta ~nd othermaterialevidence,including
al1 the remainiritimers;

- pay appropriate compensation.

We expectLibya to comply promptly anidn full."

The Court also takesnote of the fact that the subjectof that
declarationwas subsequently considere by the United Nations Security
Council,which on 21 January1992 adoptedresolution 731(1992),of which
the Court quoteshter alia the followingpassages:

"pee~lvconcerned over the resultsof investigations,
which implicateofficialsof the LibyanGovernmentand which
are containedin Security Council documents that include the
requests addressed to th Libyanauthorities by France, ... the
UnitedKingdomof Great Britainand NorthernIreland ... and
the UnitedStatesof America ... [S/23308], ...in connection
with the legal procedurerselatedto theattacks carriedout
againstPan Americanflight103 and Union de transportsaériens
flight 772,

2. StronnlvdeDioresthe fact that the Libyan Government
has not yet responded effectiveltyo theabove requeststo
cooperatefully in establishingresponsibility for the
terroristacts referredto above againstPan American
flight103 and Union de transports aériensflight772;

3. Urnes the LibyanGovernment immediatelyto providea
full andeffectiveresponseto those requests soas to
contribute to theeliminationof international terrorism;"

The Court furthernotes that on 31 March 1992(threedays after the
close of the hearings) the Security Council adopted resolu 748on1992)
stating jnter alia that the SecurityCouncil: Dee~l~concernedthat the LibyanGovernmenthas stillnot
provideda full and effective respons to the requestsin its

resolution731 (1992)of 21 January1992,

Convincedthat the suppression of acts of international
terrorism, including those in which States aredirectlyor
indirectlyinvolved,is essential for the maintenance of
international peace and security,

Determininq,in this context,that the failureby the
LibyanGovernment to demonstrat by concrete actionsits
renunciationof terrorism and in particular its continued
failure to respond fully and effectivel to the requestsin
resolution731 (1992)constitutea threatto international
peace and security,

Actinq under ChapterVI1 of the Charter,

1. Decidesthat the LibyanGovernment must now comply
without any further dela with paragraph 3of resolution731
(1992) regardingthe requestscontainedin documentsS/23306,
S/23308and S/23309;

2. Decidesalso thatthe LibyanGovernment must commit
itself definitivelyto cease al1 formsof terroristactionand
al1 assistance to terroris groupsand thatit must promptly,
by concreteactions,demonstrateits renunciation of terrorism;

3. Decidesthat,on 15 April 1992 al1 States shall adopt
the measures set out below w,ich shallapply until the

Security Councildecidesthat the LibyanGovernmenthas
compliedwith paragraphs1 and 2above;

7. CallsuDon al1 States, includinS gtatesnot membersof
the UnitedNations, and al1 internationalorganizations, to act
strictlyin accordancewith the provisions of the present
resolution,notwithstanding the existenceof any rightsor
obligationsconferredor imposed by any international agreement
or any contractentered into or any licenceor permit granted
prior to 15April 1992."

The Court observesthat Document S/23308,to which referencewas
made in resolution 748(1992),includedthe demands made by the
United Kingdomand the UnitedStatesof Americain theirjoint

declarationof 27 November1991, as set out above.

After having referredto the observationson Security Council
resolution748 (1992)presentedby both Partiesin responseto the
Court'sinvitation, thC eourt goes on to consideras follows: "Whereas,the Court, in the context of the present
proceedings on a requestfor provisionalmeasures,has, in
accordancewith Article41 of the Statute,to considerthe
circumstances drawn to its attention asrequiringthe
indication of such measuTes,but cannotmake definitive
findingseitherof fact or of law on the issues relatint go the

merits,and the right of the Partiesto contestsuch issuesat
the stage of the meritsmust remain unaffected by the Court's
decision;

Whereasboth Libyaand the United Kingdom,as Membersof
the United Nations, are obligedto acceptand carry out the
decisions.ofthe Security Councii ln accordancewith Article 25
of the Charter; whereas thCourt,which is at the stage of
proceedingson provisional measuresc ,onsidersthat prima facie
this obligationextendsto the decisioncontainedin
resolution748 (1992); and whereas,in accordancewith
Article103 of the Charter,the obligations of the Partiesin
that respect prevail over their obligationsunder any other
international agreement, includin the MontrealConvention;

Whereas theCourt,while thusnot at this stagecalled
upon to determine definitively the legal eff ofcSecurity
Council resolutio7 n48 (1992),considers that, whateverthe

situation previous to the adoptionth oft resolution, the
rights claimed bL yibya under the MontrealConventioncannot
now be regardedas appropriate for protection by the indication
of provisionalmeasures;

Whereas, furthermore an indicationof the measures
requested by Libya would be likelyto impair the rightwshich
appearprima facie to beenjoyedby theUnited Kingdomby
virtueof SecurityCouncil resolutio7 n48 (1992);

Whereas,in order to pronounceon the present request for
provisionalmeasures,the Court is not calledupon to determine
any of the other questionwshich have beenraisedbefore it in
the present proceedings, including q thestion ofits
jurisdictionto entertainthe merits of the case; and whereas
the decisiongiven in theseproceedingsin no way prejudgesany
auch question,and leaves unaffected the righo ts the
Governmentof Libya and the Government of the UnitedKingdomto

submit arguments ir nespectof any of these questions;

For these reasons,

THE COURT,

By eleven votesto five,

Finds that the circumstances of the case a not such as
to require the exercis of its powerunder Article41 of the
Statuteto indicateprovisionalmeasures." Annexto PressCommuniaué No. 92/@

Déclaration of Vice-Presidentda. ActinnPresident

Acting President OD Appended adeclaration concurriwngth the
Court's decisionbut expressinghis view that it should not have been
basedsolelyon the consequençeo sf Security Council resoluti on8,
since thissuggested thpeossibility that,priorto the adoption ofthe
resolution, the Court coulhdave reachedlegal conclusions witeffects
incompatiblewith the Council'sactions, and thCeourtmight in thatcase
be blamedfornot havingacted sooner.As it happened, the
Security Councila,pplyingits own logic, actedwith hastein adopting
itsnew resolution before th Court couldhave reacheda considered
decision,a factof whichit musthave been aware.

Acting President Odas satisfiedthatthe Courtpossessed
jurisdictionprimafacie,despitethe six-monthrule in Article14 (1) of
the MontrealConvention,sincethe circumstanceh sad appearedto leaveno
room to negotiattehe organizationof anarbitration.

However,the essential righ of which the protectiwons claimed,
thatof not being forcedto extraditeone'sown nationals, was a
sovereign righutndergeneralinternational law w,hereasthe
subject-matteorf Libya.'~pplicationconsistedof specificrights

claimed undertheMontrealConvention.Giventhe principlethat the
rights sought tboe proltectedn proceedingsfor provisional measures
must relateto the subject-matteorf the case, this meanthatthe Court
would in any case have htaod declinetoindicatethemeasures
requested. Sucha mismatchbetweenthe objectof the Application and the
rights soughtto be pra~tectedught, in theview of the ActingPresident,
to have been themain reasonfor takinga negative decision, whiwchuld
have been appropriatneo less beforethanafter the adoptioonf
resolution748.

Deelarationof Judne Ni

JudgeNi, in hisDeclaration, expresseshis view that,accordingto
the jurisprudenceof the Court,the fact thata matteris beforethe
SecurityCouncilshouldnot preventit beingdealtwith by the Court.
Although both organsdealwith the samematter,.thereare differing
pointsof emphasis. Irthe instant case,the Security Council, aas

politicalorgan,is more concernedwith the eliminationof international
terrorism and the maintenan ofeinternational peace asndcurity, while
the Internationa lourtof Justice,as the principaljudicialorganof
the UN, is more concernewith legalprocedures such as questionsof
extraditionand proceedingisn connectionwith prosecution of offenders
and assessmentof compensation,etc.

ConcerningLibya'srequestfor provisionalmeasuresJudgeNi refers
to theprovisions in the 1971MontrealConvention forthe Supressionof
Unlawful Actsagainst theSafetyof CivilAviationon which Libya
relies. Accordingto Article14 (1) of thatConvention, any one of the
Partiesto a dispute mayinvokejurisdiction of the InternationaCourt
of Justiceif withinsixmonths from the date of the request for
arbitrationno agreementis reachedon the organizationof the
arbitration.In thiscase,Libya'sproposedarbitration by a letterof
18th January 1992, onlone-and-a-halmfonths hadelapsedbefore Libya
instituted proceedingsn the International Courof Justiceon 3rd March
1992. Judge Ni considersthat Libya'srequestshouldbe deniedon the sole
ground of the non-fulfilmentof the six-monthperiod requirement, without
having to decide at the same time on the otherissues. Consequently,
Libya will not be preventedfrom seekinga remedyof the Court in
accordancewith the provisions of the 1971MontrealConvention,if,
months later, the disputestill subsistsand if the Applicant so desires.

Joint declarationof JudnesEvensen.Tarassov.Guillaume and Aauilar

JudgesEvensen,Tarassov, Guillaume an Aguilar,in a joint
declaration, expressed their compla eteeementwith the decisionof the
Court,but made someadditionalcomments. They stressedthat,before the
Security Councilbecame involved inthe case, the United States and the
UnitedKingdomhad been entitledto requestLibya to extradite the
accusedand, to thatend, to take any action consistew ntth .
internationallaw. For its part, Libya wasentitledto refusesuch

extraditionand to recallin that connection that, in common with the law
of many other countries,its domesticlaw prohibitsthe extradition of
nationals.

The authorsthen showedthat, in this particularcase, that
situationwas not considered satisfactory by theSecurityCouncilwhich
was acting,with a view to combattinginternational terrorisw m,thin the
frameworkof ChapterVI1 of the United Nations Charter. The Council
accordingly decidetdhat Libya should surrenderthe two accused to the
countriesthat had requestedtheirextradition.

Under those circumstances, JudgesEvensen, Tarassov, Guillau med
Aguilar takethe view that the Court,pronouncingon a requestfor the
indicationof provisional measures submittb edLibya in order to
preserve the legal situation existingprior to the adoption of the
Security Council resolutions, was fullyjustified in notint ghe changes
thathad beenmade to that situationby those resolutions. It was also

fully justifiedin holdingthat,as a consequence,the circumstanceo sf
the casewere not such as to require the exercis of its power to
indicatesuch measures.

SevarateOpinionof Judne Lachs

The presentcases,and thenecessityfor theCourt to takean early
decisionon an interlocutory request have broughtout into the open
problemsof jurisdictionand what is know as sub ludice. In fact the
Court is the guardianof legality for the internationac lommunityas a
whole,within and withoutthe United Nations.There is no doubt that the
Court'stask is "to ensurerespect for internationl alw ..."
(J.C.J.Re~orts1949,p. 35). It is its principal guardian.In the
presentcase the wider issueof international terrorismhas not onlybeen
on the agenda of the Security Councb ilt the latter adopted
resolutions731 and 748. The ordermade should notbe seen as an
abdicationof the Court'spowers. Whetheror not the sanctionsordered
by resolution 748 have eventuallyto be applied, it is in any eventto be
hoped that the two principao lrgans concernedwill be able tooperate
with dueconsideration for theirmutual involvementin the preservation
of the rule of law.Se~arateo~inionof JudaeShahabuddeen

In his separateopinion,JudgeShahabuddeen though thatLibyahad
presentedan arguable case fo an indicationof provisional measures but
that Security Council Resol ount48 (1992)had the legal effec of
rendering unenforceable t rghts claimed by Libya. The decisionof the
Court,he said,resultednot from any collision between the compet efnce
the Security Counci and thecompetence of the Court, but froam
collision between the obligati ofnLibyaunder the Resolutionof the
Security Councia lnd any obligationshich Libya hadunder theMontreal
Convention.Under the Charter, the obligatio under the Resolutioonf
the Security Counci prevailed.

JudgeShahabuddeen considert edatthe Respondent's demat ndat

"Libya ...must pay appropriate compensati o. promptlyand in full"
presupposed a priordeterminationby the Respondent that ta hecusedwere
guilty, sincethe responsibilit of the Libyan Statewas premisedon the
guiltof the accused. In JudgeShahabuddeen'v siew, the implications for
an impartial triailn the RespondentState wereimportant.This wasso
becausetherewas a fundamental sensein whichit couldbe said that the
questionof an impartia,tlrial layat the rootof the entirecontroversy
relatingto the Respondentlsdemand for the surrendo er the two accused,
the stated positio of the Respondent being thaan impartial triaclould
not be hadin Libya.

JudgeMohammed Bedjaoui proceeds from the idea that there twoxist
altogether distinct disputes, one legal, ottherpractical. The former
concerns the extraditio ontwo nationals andis dealtwith, as a legal
matter,before the International Coo urJusticeat the request of
Libya,whereas the latterconcerns the wider questi ofnStateterrorism
as well as theinternat~ionraelsponsibilitoyf the Libyan State and,or
its part,is being dealt with, politically, before the Security Council
at the requestof the llniteKingdomand the UnitedStates.

JudgeBedjaoui considers thL atbya wasfullywithin its rightsin
bringing before the Court, wa ithiew to its judicialsettlement, the
dispute concerning the extradition, a juthe United Kingdomand the
United Stateswere fullywithin their right in bringing beforethe
Security Council with a view to its political settlement, the disp onte
the international responsibil oftyibya. The situation shouldi,n the

opinion of JudgBeedjaoui,be summarized as follows: he is of the view,
on the one hand, that th eights claimebdy Libyaexist prima faci end
that al1 of the conditions normally requib rethe Court forthe
indicationof provisio~lameasures are fulfilli ed this caseso that
theserights maybe preservedin accordance with Article41 of the
Statuteof the Court. And it is on this pointthatJudgeBedjaoui
expressed reservatiow nsth regardto the two Ordersof the Court. But
it should alsobe notedthatSecurity Council resoluti 7o48 (1992)has
annihilatedtheserightsof Libya,withoutit being possiblea ,t this
stageof provisional measures, of, in other woa rdprima facie
pre-examinationf,or the Courtto takeit upon itselfto decide
prematurely the substantive quest ofonhe constitutional validioty
that resolution, fo whichreason the resolution benefits f arom
presumptionof va1idit:ayndmust prima facie be het ld be lawfuland
binding. He is thereforein agreementwith the Courtas to thissecond
point.
1767f The situationthus characterized, with rights thatdeserveto be
protectedthroughthe indication of provisionalmeasuresbut which are
almost immediatelynegatedby a resolution of the Security Council that

deservesto be consideredvalid prima facie, does not fa11 precisely
within the boundsof Article 103 of the Charter; it exceedsthem
somewht.

Subject tothis nuance, it is clear that the Courtcould notbut
take note of the situationand hold that at this stageof the proceedings
such a llconflict",overned byArticle 103of the Charter, resulted in
effect in any indicationof provisionalmeasures being ineffectual. But
the operative partsof the two orders remaia nt the thresholof the
whole operation inasmuchas the Court Statesthereinthat,having regard
to the circumstances,there is no reason forit to exerciseits power of
indicatingprovisionalmeasures. The qualification made by
Judge Bedjaouiis that in the presentcase the effective exercis of this
power was justified; but he also observes that the effects of that
exercise hadbeen nullifiedby resolution748 (1992). Judge Bedjaoui
thereforearrives, concretelya ,t thesame resultas the Court,via an '*I
entirely different rout but also with the importantnuancementioned,as
a resultof which he does not rejectthe request for interimmeasures
but, rather,declaresthat its effectshave disappeared.

That said, Judge Bedjaouiis of the viewthat the Court couln dot
have avoidedorderingprovisional measureo sn the basis of the
circumstances of the case submitt todit, even though theeffectsof
auch a decisionwere negatedby resolution748 (1992). It shouldbe
added that, even assumingthat the majorityentertainedsome doubt,which
he personally did not share,as to whether therequestingState could
fulfilone or another ofthe prerequisites ta on indication of
provisionalmeasures,the Court couldhave made use ofthe powerto

indicate itself any proviaional meast uret it would have consideredto
be more appropriatethan those sought bythe requestingState.

Consequently the Court couldhave decidedto indicate provisional
measuresin thevery generaltermsof an exhortationto al1 the Parties
not to aggravateor extendthe dispute. Thus, assumingthat the Court
would in this case have beenjustifiedin consideringthat one or another w
prerequisite to the indicati ofncertain specific measures waslacking,
it had at least one resource,namely, toadopt a general, distinct,
measure takingthe form of an appeal to the Partie not to aggravateor
extendthe dispute,or of anexhortation addressed t them tocorne
togetherfor thepurposeof settling the disputearnicably,either
directly,or through the Secretariat ofthe United Nations orthat of the
Arab League, thus conforming towhat is nowadaysestablishedpractice.

Moreover,given the grave circumstances of the presentecase,would
an indicationof a provisional measuro ef thisnaturenot havebeen an
elegantway of breakingout of the impasse arisinf grom the opposition
between,on the one hand, the more specifp icovisionalmeasuresthat the
Court should haveorderedto meet the wishesof the requesting Stata end,
on the other, Security Council resoluti7 on8 (1992),whichwould in any
eventhave negated the effecto sf such an order? This would have been an
elegantway of sidesteppingthe main difficulty, and also a really
beneficial way of doing so, in the interests of everyoneby assistingin
the settlement of the dispute through methodtshat appearlikely to be

used. JudgeBedjaouitherefore regrets that the Co wurtunableto
indicate neitherspecificprovisional measuresof the kind soughbty the
requesting States, nor,propriomotu, general measuresa, way thatwould

have enabled it to make its own positivecontributioto the settlement
of the dispute. This is why,,inthe lastanalysis,he couldnot but vote
againatthe two Orders.

Pieeeatianovinionof JudneWeeramantn

JudgeWeeramantry, in his DissentinOpinion,expressedthe view
that the circumstanci esvokedby the applicant appearepdrima facito
afforda basisfor the Court'sjurisdiction.

The Opinion drawsattentionto theuniquenatureof the present case
in that it is the firsttimethe International Couratnd the Security
Councilhave beenapproached by oppositepartiesto thesamedispute.

This raisednew questionswhichneededto be discussedin the lightof
the respective power of the Counciland the Courtnderthe United
NationsCharterand in the lightof theirrelationship to eachother.

Afteran examinationof the relevantarticlesof the Charterand of
the travauxpré~aratoiresof Articles24(2)and (1) in particular,the
Opinionconcludesthat theCourt is not debarred from considering matters
which the SecurityCouxicilas consideredunderChapterVI. Furthermore,
the Security Council, idischarging itsdutiesis requiredto act in
accordancewith the principles oifnternationallaw.

The Courtis a coordinate bodoyf the Security Councilnd, inits
proper sphereof determiningdisputes, examineasnd decidesquestions of
internationallaw accowding tolegal principleasnd judicialtechniques.
In regard tomatters properlybeforeit, the Court'sfunctionis to make
judicial decisionasccording tolaw andit would notbe deflectedfrom
this courseby the fact thesamematterhas beenconsidered by the

SecurityCouncil. However, decision made by the Security Councilnder
ChapterVI1 are prima facie binding aon1 Membersof the UnitedNations
and would notbe the subjectof examinationby theCourt. Judge
Weeramantry conclude thatResolution731 is only recommendatorynd not
bindingbut thatResolution 748 is prima facie binding.

The Opinion concludetshatprovisionalmeasurescan be'indicatedin
such a-manneras not to conflictwith Resolutio748 and indicatessuch
measurespropriomotu sgainstboth parties preventin such aggravationor
extensionof the disputeas might resultin theuse of forceby eitheror
both parties. This actionis basedon Article41 of the Statuteand
Articles73, 74 and 75 of theRulesof Court.

Pissentinnovinionof JudneRanieva

In his dissentinopinion,JudgeRanjeva considert shat the present
dispute goesbeyondthe framework of relations betweenhe Partiesto the
disputeand concerns the rightof al1 Statesbound bythe Montreal
Convention.Givenhis rightto choose,in accordnce with the principle
aut dedereaut ludicarg,the Applicant wajsustifiedin requestingthe
Courtto indicate provisiona measures; this rightwas incontestable
until the dateof the adoptionof resolution748 (1992). The fundamental
changeof circumstancesthatoccurredsubsequent to the filingof theApplication, withou any alteration inthe factualcircumstanceosf the
case,prevented the Court fromexercisingits legal functiotno the full
extentof its powers.

But, contraryto the opinionof the majorityof the Members ofthe
Court,JudgeRanjeva considert shat, bearingin mind the developmentf
case-lawrelatingto the applicationof Articles41 of the Statuteand 75
of the Rules,as well asthe autonomoun satureof an appeal bythe Court
to the Partiesin relationto the indicatioonf provisional measures
(caseconcerningPassagethrounhthe Great Belt (Finlandv. Denmark)),
measures consisting,among otherthings,of an appeal to theParties

enjoiningthem to adopt alineof conductwhichwould prevent the
aggravation or extensioon the conflict. Forsuchwas the posture of
the Courtin theMilitarvand ParamilitamActivitiesin and anainst
Nicaragua(Nicaragua v. United Statesof AmericaZand the Frontier
Disputecases.

In the viewof JudgeRanjeva,thenew dimensions of the problem
meant that the Courtwas unableto limititselfto a passive approact ho W
its legal function, which, aidynamicsense,fallswithinthe scope of
the fundamental obligation set ointArticle1, paragraph 1,of the
Charterof the United Nations,namely, themaintenance of peacewithin
the contextof its role.

Dissentinno~inionof JudneA-iibola

JudgeAjibola,in his dissenting opinion, regre tsat the Court, by
a majority decisiond ,eclinedto indicate provisionameasureseven
thoughLibya establishedsufficientwarrant foritsdoing 80 underthe
applicable provision of the Court'sStatuteand Rules.

He strongly believes thateven if the Courtconcludedthatsuch
measures shoulbde declinedbecauseof the possible effeco tf
Security Council resoluti on8, the resolutiodid not raiseany
absolutebar to the Court'smakingin its Orderpronouncementc slearly
extraneousto the resolutioa nnd definitelnot in conflictwith it.

He goes on to stressthe Court'spowers,especiallyunderArticle75
of its Rules,to indicate provisiona measurespro~riomotu,quite
independentlyof theApplicant's request,for the purposeof ensuring
peaceand security among nations and in particular theartiesto the

case. It should therefore,pendentelite,have indicated provisional
measuresbasedon Article41 of the Statuteand Articles73, 74 and 75 of
the Rulesof Court,with a viewto preventing ana yggravation or
extensionof the disputewhichmight result it nhe use offorceby either
Partyor by both Parties.

Dissentiw o~inionof Judnead hoc El-Kosheri

Judgead hoc El-Kosheri,in his dissentingopinion,focused mainly
on the legal reasons whicled him to maintainthat paragrap h of
Security Council resoluti 748 (1992)shouldnot be consideredhaving
any legaleffect onthe jurisdiction of the Court,evenon primafacie
basis,and accordingly the Libyanrequestfor provisional measurehas to
be evaluatedin conformitywith habitua1pattern asreflected in theestablishedjurisprudence of the Court. In the light of the rules relied
upon in the recentcaseshe came to the conclusion tha the Court should
act pro~riomotu toindicatemeasures having for effect:

- pendinga finaldecisionof,theCourt,the twosuspects whosenarnes

are identifiedin the presentproceedings shoulb de placedunder the
custodyof the governmental.authoritie in anotherState that could
ultimatelyprovidea mutuallyagreedupon convenient forum for their
trial;

- moreover,the Court couldhave indicatedthat the Partiesshould
each of them ensurethat no actionof any kind is takenwhich might
aggravate orextendthe dispute submitted to th Court or likelyto
impedethe proper administratio of justice. INTERNATIONA COL URTOF JUSTICE

Palace,25KJThe HaguT.el. (-3924441).Cabl:ntercout,he Hague.

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forimmediate rclease

Ho. 92/8add.
14 April1992

Questionsof Uter~retatiomd k~licationof the 1971

~ L i v r a b v. UnitedKiagdoml
Peauestfor the Indication of Provisional Measures

The votingon the Orderof the Courton the repuestfor the
indicatioof provisionmeasures madby Libyain thebovecasewas as
follow:
IN FAVOUB:Vice-PresideOda, Acting President; President
Sir RobertJenningsJudgesLachs,Ago, SchwebeNi, Evensen,
Tarassov, Guillaume,ahabuddeen, Aguilar Mawdsley;

AGAINST:JudgesBedjaouiWeeramantryBanjeva,Ajibola;
Judgead hoc El-Kosheri.. *,.
"i c , -.""*:-\
'x .> 2

INTERNATIONAL COURT OF JUSTICE

PeacePalace,2517KJTheHague.Tel. (070- 3924441).Cables:Intercout,heHague.

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unoffïcial
See Comm. 9219 for immediaterelease

No. 92/8 corr.
14 April 1992

On page 2 of the Annexto PressCommuniqué No. 9218,the last word
of the secondparagraphof the summaryof theJointdeclaration of
JudgesEvensen, Tarasaov, Guillaume andAguilar, shoulr dead:
"surrender" insteadof "extradition".