------ -~--------------- ------------
Non-Corrigé
Uncorrected
International Court
of .Justice
THE HAGUE CR 92/6
Cour internationale
• n:AR 1992
·.r de Justice
Public sitting LA HAYE
~,
'"f~ -
held on Saturday 28 March 1992, at 3.30 p.m., at the Peace Palace,
Vice-President Oda, presiding
in the case concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
Request Eor the Indication of Provisiona1 Measures
(Libyan Arab Jamahiriya v. United Kïngdom)
in the case concerning Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
Request Eor the Indication of Provisiona1 Measures
(Libyan Arab Jamahiriya v. United States of America)
VERBATIMRECORD
ANNEE1992
Audience publique
tenue le samedi 28 mars 1992, à 15 heures 30, au Palais de la Paix,
sous la présidence de M. Oda, Vice-Président
en l'affaire relative à des Questions d'interprétation et d'application
de la convention de Montréal de 1971 résultant
de l'incident aérien de Lockerbie
Demande en indication de mesures conservatoires
• (Jamahiriya arabe libyenne c. Etats-Unis d'Amérique)
l'\
,/1 ,,
en l'affaire relative à des QuestionS d'interprétation et d'application
de la convent dei o o~tréal de 1971 résultant
de l'incident aérlen de Lockerbie
(Jamahiriya arabe libyenne c. Royaume-Uni)
Demande en indication de mesures conservatoires
COMPTERENDU
OOOlC - 2 -
Present:
Vice-PreJudges Sir Robert Jennings,t President of the Court
Lachs
Ago
Schwebel
Bedjaoui
Ni
Evens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola
Judge ad hoc El-Kosheri
Registrar Valencia-Ospina
•
OOO!C - 3 -
Présents:
M. Oda, Vice-Président de la Cour, faisant fonction de Président
Sir Robert Jennings, Président de la Cour
MM. Lachs
~. Ago
,,, Schwebel
..) Bedjaoui
Ni
Evens en
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Aji bol a, juges
M. El-Kosheri, juge ad hoc
M. Valencia-Ospina, Greffier
...
'•
OOOlC - 4 -
The Government of the Libyan Acab Jamahiriya will be represented by:
H. E. Mr. Al Faitouri Sh. Mohamed, Secretary of the People's Office
of the Socialist People's Libyan Arab Jamahiriya in Bruxelles,
..
as Agent; '),
r
Mr. Abdelrazeg El-Murtadi Suleiman, Professer of Public
International Law at the Faculty of Law, Benghazi, ·"
Mr. Abdulhamid M. Raeid, Adocate Before Supreme Court,
as Counsel;
Mr. Jan Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy,
as Counsel and advocate;
Mr. Eric David,
as Counsel.
,The Government of the United States of America will be represented by:
The Honorable Edwin D. Williamson, Legal Adviser of the Departmen,t
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. Rashko~, 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, D~partme nftJustice,
Ms. Lucy F. Reed, Legal Counselor, United States American Embassy,
Attorney-Advisers.
OOO!C - 5 - .
Le Gouvernement de la Jamahiriya arabe libyenne sera représenté par :
s. Exc. Al Faitouri Sh. Mohamed, secrétaire du bureau populaire de
la Jamahiriya arabe libyenne populaire et socialiste à Bruxelles,
comme agent;
M. Abdelrazeg El-Murtadi Suleiman, professeur de droit international
public à la faculté de droit, Benghazi,
M. Abdulhamid M. Raeid, avocat à la Cour suprême,
comme conseils;
M. !an Brownlie, Q.C.,
M. Jean Salmon,
M. Eric Suy,
comme conseils et avocats;
Mr. Eric David,
comme conseil.
Le Gouvernement des Etats-Unis d~Amériq ueea représenté par :
L'honorable Edwin D. Wi!liamson, 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.
OOOlC - 6 -.
The United Kïngdom of Great Britain and Northecn Ireland will be
represented bg:
Mr. F. D. Berman, C.M.G., Legal Adviser to the Foreign and
Commonwealth Office,
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. Norman McFayden,
as Advisers.
•
OOO!C - 7 -
Le Gouvernement du Royaume-Uni sera représenté par :
M.F. D. Berman, C.M.G., conseiller juridique du ministère des
affaires étrangères et du Commonwealth,
comme agent;
M. MmeE. 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. Norman McFayden,
comme conseillees •
•
OOOlC - 8 -
The ACTINGPRESIDENT: Please be seated. The Court will now hear
the rejoinder of the United Kingdom, in the case brought by Libya against
the United Kingdom. I now call on Mr. Rodger.
Mr. RODGER: Mr. President, Members of the Court.
In his reply this morning, Professer Brownlie made reference to the
account which I gave on Thursday for this Court, of the crime committed
at Lockerbie and of the reasons why the Lord Advocate has taken the
initial steps to prosecute two Libyan nationale, Professer Brownlie said
that mentioning these matters gave the proceedings an air of unreality,
since, he said, the Court is concerned with legal issues under the
Montreal Convention.
The purpose of the account which I gave was strictly relevant to the
issues before the Court. It was aimed to demonstrate why the
United Kingdom approaches the matter on the basis that the Lord Advocate,
after a full investigation, has charged these two individuals with
committing these crimes in pursuance of the aims of the Intelligence
s,ervices of Libya. That is central to our approach and it is a failure
of the Applicant's counsel really to address this critical point which
·lends an air of unreality to what they say.
On any view, Mr. President, the fact that the criminal charges
allege complicity of the Libyan Intelligence Services in the attack must
be relevant to Libya's claim to try them. It is a trite principle of law
that no-one can be judge .in his own case. Yet that is, in effect, what
Libya demanda. As I said on Thursday, if accepted, such an approach
would spell the end of the system built up in the 10 conventions to fight
terrorism.
0076c/CR6/Tl/rmcb - 9 -
On the matter of prima facie jurisdiction, which is the only other
matter which I wish to mention, I am, for the most part, content to refer
to what I said on Thursday. I add only a few points, in deference to
Professer Salmon's reply •
•• First, I emphasize that the Court is concerned with whether
prima facie the Court had jurisdiction when the Application was lodged,
on 3 March.
Next, I refer again to what was said in the South-West Africa 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."
Further, so far as the matter of the existence of a dispute is
concerned, I remind the Court that the dispute must have been one
relating to the interpretation or application of the Montreal Convention.
While Professer Salmon this morning cited various communicatlons by
Libya and the Libyan juge d'instructlon, none of these, prior to the
18 January, ever mentloned the Montreal Convention. In particular, the
letter of 8 January (Libyan Document 20), referred toby Professer Salmon
this morning, dld not refer to the Montreal Convention or proceed as if
it were written wlth regard to that Convention. On the contrary, the
Court will notice that the terms of the offer, which is number 2 on
page 3 of the document (Libyan Document 20, p. 3, para. 2), for resolving
any legal conflict, are wholly inconsistent with the provisions of
Article 14(1) of the Montreal Convention .
•
In these circumstances, it does not do for Libya to assert that
these communications point to the existence of a relevant dispute, that
• is to say, a dispute under the Montreal Convention.
0076c/CR6/Tl/rmcb - 10 -
As 1 stressed in my original submission, the scope of Article 14(1)
is very limited. When the Court is being asked to found its jurisdiction
on such a limited provision, it must therefore look carefully to make
sure that a dispute falling within the terms of that limited provision
really existed. For this reason, expressions of an opinion in any cases 0"'
c.oncerning the identification of a dispute, where the basis of
jurisdiction claimed is general, applying to all disputes, or at !east
wider, applying to a large category of disputes, such cases must be used
with caution in this case,
•
0076c/CR6/TI/rmcb - 11 -
Professor Salmon this morning referred to the South West Africa
case as showing that the Court avoids a formalistic approach to the
question of the existence of a dispute. That passage is well-known of
course but the Court will bear in mind the background against which the
~. observations were made. In that case the Court held that even a cursory
examination of documents showed that an impasse existed·when the
Applications were submitted in November 1960 and furthermore that it had
actually existed for over six years before that date. That is quite
different from the situation in this case. Similarly, when in the
Mavrommatis case the Permanent Court spoke of flexibility in
international relations that was said quite specifically in a context
where negotiations were said to have "defined all the points at issue
between the two Governments", Again for obvious reasons that is quite
simply not the position in this case, In the recent obligation to
arbitrate advisory opinion the requirements to articulate the dispute
were not dispensed with by the Court. On the contrary, the Court clearly
placed great weight on the 1etter of the Secretary-General explaining
exactly what were the legal issues which constituted a dispute.
I have cause to observe that in his elegant way, Professer Salmon
suggested that al! our arguments in relation to Article 14 were based or
•
are based on Lewis Carroll logic, Since we deny that the Convention
applies and yet seek to hold Libya to the terms of Article 14(1).
But, Mr. President, Members of the Court, there is nothing illogical
in our approach. It is Libya which choses to assert claims under the
Montreal Convention. We simply point out that if Libya tries to found
them on the Montreal Convention, Libya cannot ignore the terms of
Article 14(1) which are an integral part of the Convention. Libya cannot
pick and choose, Libya cannat found on the provisions which suit its
case and ask the Court to disregard another provision which does not suit
0077c/CR/6/T2/mcs - 12 -
Libya, but which contains preconditions to the very jurisdiction of the
Court which Libya seeks to invoke.
As Professer Salmon remarked we all, I am sure, waited with
impatience to see what he would see about the six months' time-limit. In
the event he made t~o initial points. He drew attention in the first ..
place to certain cases on exhaustion of domestic remedies. On that
matter I simply observe that the Court is not today considering that kind
of question and that no general principle applicable in this case can be
derived from the decision cited or from Judge Ago's opinion. With a
degree of relish Professer Salmon also referred to a submission on the
time-limit in the United States Memorial in the Iran Hostages case.
Doubtless the United States may wish to address this matter in their
Rejoinder, I do not know. For my part, I content myself with observing
that in that case the Court did not found its jurisdiction on the
particular convention which gave rise to that argument. And indeed the
Court expressed no view on the argument. Paragraphs 14 and 21 of the
Judgment refer.
Professer Salmon also said that a procedural requirement of the kind
which we are concerned with here need only be respected if it serves a
purpose. But as I explained in my earlier submissions this time-limit
•
laid down in Article 14(1) does indeed serve an important purpose. The
purpose of the six months' time-limit is to ensure that a party cannet
prevent third-party settlement by delaying tactics against the
organization of an arbitration. Besides this six months' provision is
not merely a formal ban on the submission of disputes to the Court. On
the contrary, it indicates rather that arbitration is the normal method
•
of third-party settlement of disputes under the Convention with the
Court's jurisdiction arising only as a matter of last resort.
0077c/CR/6/T2/mcs - 13 -
When Professer Salmon turned to analyze the text of Article 14 his
remarks displayed all the skill not of a magician who has practised for
only one day but of an experienced and skillful illusionist. For his
interpretation of the words "within six months" would make them disappear
altogether. He cited bath the French version with the word "dans" and
the English version with the word "within". And ended up by saying that
the ward must mean "pendant.". But if all that the provision says i.s
that if, during (pendant) a period of six months after the request, the
parties cannot agree on arbitration, then either can go to the Court,
then what, 1 ask, is the point or purpose of mentioning the six months at
ali? In effect, on that reading, the clause would be indistinguishable
from a clause saying simply that if at any time after the request for
arbitration the parties are unable to agree then resort may be had to the
Court. And that is not what the provision says and effect must be given
to the six months' limit.
In the end, in my submission, the point on jurisdiction remains a
simple one. Prima facie, having regard to the terms of Article 14(1) the
Court had no jurisdiction under that Article as at 3 March when the ·
Application was filed. In these circumstances the Court today has no
jurisdiction to indicate interim measures.
My friend, Professor Higgins, will now present further arguments for
the United Kingdom Rejoinder .
.;
•
0077c/CR/6/T2/mcs - 14 -
The PRESIDENT: Thank you, Mr. Rodger. I now call upon
Professer Higgins.
Professer HIGGINS: May it please the Court.
It was suggested this morning, and this has already been referred to
••
by the Solicitor-General, that there was an air of unreality about the
way we put our case. The reality, said Professer Brownlie, is that
"Libya is now accused of relying upon the provisions of an international
convention and resorting to the Court". Libya is, of course, perfectly
entitled to bring a claim invoking a convention. It will be for the
Court in the fullness of time to decide if it has jurisdiction under the
terms of that Convention to proceed to the merita.
But we are today dealing with interim measures. And we do say that
the request for interim measures serves purposes that make them bath
unnecessary in the circumstances and inappropriate. And we do say that
the request for interim measures meets none of the tests enunciated by
the Court for the exercise of its powers under Article 41 of the Statute.
Mr. President, on Thursday we made careful submissions about the
relationship between the Security Council and the Court which of course I
will not repeat now.
Professer Salmon today stated that the United Kingdom is trying to •
use the Security Council to prevent the Court from exercising its
mission, that was the phrase used. But what is its mi.ssion? It is to
deal with the jurisdictional issues relating to the matter that Libya has
brought before it. There is a dispute as Libya sees it that relates to a
series of rights under the Montreal Convention. The Court's mission will
be to see Eirst, if at this moment, by reference to the date of the •
Application, there is a prima facie jurisdiction to arder the interim
0078c/CR6/T3/cwr---------------------------------------------------------------------- -----
- 15 -
measures requested; second, see if those measures are required to
protect the effective execution of a possible judgment; and third, if
the measures, if required, are directed to that end. This is the Court's
mission. There is no question of using the Security Council to prevent
~ .
this mission.
Nor is it correct, as Professer Suy puts it, that we say that the
Court !oses any parallel competence it has with the Security Council when
the Security Council cornes to Chapter VII. The Security Council is not
dealing with the matters that have been brought before the Court. That
is why, in our submission., the Court should not be ordering interim
measures to affect political decisions on different matters within the
Security Council.
The Security Council has not been dealing with the question of
whether there are a series of rights under the Montreal Convention
including a right to choose by virtue of invoking the principle aut
dedere, aut judicare to try one's own intelligency agents rather than
extradite them. And it is certainly not considering selected sanctions
because it bas one view on these legal matters and Libya has another.
The diplomatie history is clear. The demanda of the United Kingdom,
the United States and France (Tab. 13, United Kingdom bundle of
documents) and in that Joint Declaration it stated Libya must surrender
for trial, all those charged with the crime and accept complete
responsibility for the action·of Libyan officiais, disclose all it knowns
of the crime, including the names of all those responsible and allow full
access to all witnesses, documents and other material evidence including
all the remaining timers and pay appropriate comp.ensation .
• Resolution 731, and the current draft Resolution, are not, as
Professer Suy implied, about the issue that Libya has referred to this
Court. They are about this package of demands. And that this package of
0078c/CR6/T3/cw----------- o-----
- 16 -
demanda was regarded as appropriate by the Security Council as measures
to prevent international terrorism, an agenda item of long-standing and
continuing concern, is made evident by the resolution.
Resolution 731 "strongly deplores the fact that the Libyan
Government has not yet responded effectively to the above request" and it ••
urges Libya immediately to provide a full and effective response to these
requests "so as to contribute to the elimination of international
The draft Resolution states in paragraph 3 that "Libya's continued
failure to respond fully and effectively to the requests in
resolution 731 constitute a threat to international peace and security".
And the draft also reaffirma that in accordance with Article 2,
paragraph 4, of the Charter
"Every State has the duty to refrain from organizing,
instigating, assisting or participating in terrorist acts in
another State or acquiescing in organized activities within its
territory directed towards the commission of such acts."
Counsel for Libya says resolution 731 is a mere recommendation. But
what is it that Libya is asking of the Court? Is Libya asking the Court
today that because resolution 271 is a Chapter VI resolution, the
continued failure of Libya could never constitute a threat to peace and
that the Security Council could never, therefore, order sanctions and •
should be stopped by the Court through the mechanism of interim measures
and that Members should be stopped from proposing this.
Mr. President, Members of the Court, frequently, orders for
sanctions under Chapter VII have been the subjectoof earlier
recommendations under Chapter VI. It is natural to proceed from the one
to the other if co-operation is not forthcoming.
0078cJCR6/T3/cw - 17 -
Counsel for Libya stated that the handing over of the suspects was
not an appropriate measure of adjustment under Article 36(1), that the
Security Council is asking for a package of actions as a serious response
to terrorism. Is Libya asking the Court to declare that inappropriate
". under Article 36? That cannat be what interim measures should be used
for.
Our submission is really a modest one: that a request for interim
measures should follow the legal criteria, formulated by the Court for
indicating such measures. This is not, as Professer Suy suggested, to
consign all of the Court's jurisprudence to the archives. The
• jurisprudence indeed shows, as we said in our submissions, that the Court
is free to deal with the legal aspects of political matters that might be
exercising the Security Council. But in this case, the Court is dealing
with claims under the Montreal Convention and the Security Council is
dealing with its appreciation of whether Libya's failure to respond to
the three demands concerning terrorism constitutes a threat to
international peace. There is no jurisprudence that authorizes interim
measures over matters not before the Court and which concerna political
appreciation by the Security Council, as to whether a failure to heed an
• earlier resolution, whatever the status of that resolution, could in al!
the eircumstances constitute a threat to peaee.
No matter how it is wrapped up, the request for interim measures
asks the Court to pronounce now that a decision that the Security Council
has yet to take would be illegitimate; even though that decision relates
to matters before the Security Council and not before the Court; even
though the Security Council is competent to decide if there is a threat
•
to peace; and, even though, indeed, it is under a Chapter VII obligation
to do so.
0079c/CR6/T4/rmcb - 18 -
Mr. President, Members of the Court, 1 say a brief ward on the
question of illusory rights. It is easy to !ose sight of the issue that
the Court has to deal with, namely, whether interim measures are required
to protect the rights as Libya has formulated them under the Montreal
•*
Convention.
Counsel for Libya said this morning:
"Les parties défenderesses réagissent maintenant en disant
puisque la Libye ne veut pas livrer les suspects de sa propre
volonté, nous allons entamer une procédure devant le Conseil de
sécurité afin de forcer la Libye à abandonner une partie de ses
droits souverains." (CR 92/5, p. 10).
Even if the Securi ty Council was dealing with a dispute over Li bya' s •
sovereign rights, which it is not, this leads us back to the question,
what rights? We need to know that not to decide if the Security Council
should be stopped but to see if the Court should properly indicate
interim measures, that is to say, if it should properly constrain a State
when its jurisdiction has yet to be established and when argument on the
merita have yet to be deployed.
We listened carefully to the reformulation this morning of the
alleged rights under the Montreal Convention. Although Article 7 is an
obligation, it was said to be an alternative obligation aut dedere
aut judicare which, in turn, supposes the existence of an optional
•
right. But what Article 7 says is that, if you do not extradite, you
must submit for prosecution. The right of a complicitous State to
prosecute its own security agents and to refuse surrender outside of the
Montreal provisions is apparently to be deduced from a combination of the
aut dedece, aut judicare principle in Article 7 and the recognition
that the Convention does not require extradition if it against domestic
•
law.
0079c/CR6/T4/rmcb - 19 -
Even leaving aside the various offers that Libya has made to hand
the accused over to ether jurisdictions, even leaving that aside, we
submit that this tortuous reasoning does not get anywhere near the
required prima facie test of a right to which interim measures can
•• _attach, As to the Article 11 right, it was insisted that it was not an
ancilliary right. Counsel for Libya agreed, and we were interested to
hear this, that there was under the Montreal Convention no priority as to
permissible jurisdictions and no exclusivity. But somehow there was
still a sovereign right to try ones own nationals and, therefore, a right
to co-operation under Article 11.
•
But, once it is conceded that within the Montreal provisions there
is nothing which tells us which of severa! possible jurisdictions shall
in fact have competence in a particular case over a trial, Article 11 has
to be an ancilliary right that comes into effect once that determination
has in fact been made, Again the prima facie test of the existence of
the right is not made and no interim measures can attach thereto.
As for the other al1eged rights mentioned in the Application, they
have receded and no serious further argument was advanced concerning them.
Mr. President, Members of the Court, it is not a question of
magicians seeking to cause the vanishing of rights, it is, rather, that
one has to be more of an alchemist than counsel for Libya has managed to
be in transforming the base metal of obligations into the glittering gold
of rights.
A word on rights and the need for measures.
It is also important not to !ose sight of the fact that, even if we
had righ~s not obligations, in none of them would interim measures be
•
needed to protect them from irreparable harm, in the sense of
impossibility of execution of any judgment. Only an alleged sovereign
0079c/CR6/T4/rmcb - 20 -
right, which we beard invoked this morning, to try ones own nationals and
not to surrender them to another State having jurisdiction under general
international law, only that even cornes within the frame for purposes of
interim measures. And on that I would merely respectfully remind the
Court of what·r said on Thursday "interim measures have no relevance for ••
the protection of these rights, even as formulated by'Libya (CR 92/3,
p. 56).
As for their imprecision, it was explained by counsel for Libya this
morning that that reflected the protection needed against the threat of
f,orce and it is to this that r now turn.
Webeard this morning of the heavy reality of imminent threats of •
unilateral use of force by the United Kingdom, If Libya really believes
such threats have been made, it has only to go to the Security Council
which is exactly the usual forum for addressing claims of threats
contrary to Article 2(4) of the Charter.
•
0079c/CR6/T4/rmcb - 21 -
What is wholly singular is instead to come to the International Court of
Justice and to ask for interim measures in a case allegedly concerned
with the Montreal Convention on the basis of supposed threats. Libya has
chosen neither to take these proposed threats to the Security Council nor
••
to bring a case claiming a violation of Article 2, paragraph 4.
Mr. President, Members of the Court, we would emphasize again that
the alleged violation of threats contrary to Article 2, paragraph 4, is
not the subject-matter of the dispute before the Court, though Libya
could have chosen to make it so.
To go through various newspaper clippings now does not make this the
subject matter of this case, and in accordance with the clear
jurisprudence in which I addressed the Court the ether day, it may
therefore not be the subject-matter of provisional measures. Quite
simply no nexus exista.
Finally, Mr. President, Members of the Court I would like to make a
brief comment on the suggestion floated that proprio motu the Court
could order interim measures, perhaps to both Parties, calling for no
action to aggravate the situation, or for restraint from threats or the
use of force.
0 I will, of course, not repeat my submissions concerning the
unavailability of aggravation of a dispute as a separate ground
unsustained by the companion ground of protection of the efficacy of a
judgement save ta say that we have not read the dicta of Judge Lachs, in
his opinion in the Aegean Sea case, as suggesting otherwise, merely as
indicating that where the Security Council may usefully work alongside
the principle organs in achieveing United Nations purposes, it should
have a certain freedom to do so.
008lc/CR6/TS/mj - 22 -
The Court, undoubtedly has powers to indicate measures propio
motu. This could be for measures where none are asked for, or measures
different in terms from those requested. We do submit that this power is
still a power to be exercised within the constraints on interim measures
..
presented by Article 41. Only if the Court really believes there are
prima facie rights; only if the Court really believes they are in urgent
danger of irreparable harm; only if the Court is convinced that the
measures are solely directed to the preservation to these rights. Only
then should the Court contemplate interim measures even proprio motu.
Otherwise the Court will open the flood gates to Applicants hopeful of
political advantage from any general cal! that the Court might make. •
May it please the Court, we do believe that the proposed constraints
over the freedom of sovereign States when jurisdiction is not
established, when they have not been pronounced to be in breach of an
obligation of international law, should not be indicated without
meticulous adherence to the Rules, to the Statute, and to the grounds the
Court itself has elaborated in its various Judgeents. And we submit that
if these legal tasks are addressed and tactical considerations and
allegations not the subject of the application put aside it will be seen
that there is no prima facie jurisdiction over the merits; no
•
prima facie rights to which the measures can attach; and no requirement,
in all the circumstances, ta indicate measures.
May it please the Court·, this concludes my submissions by way of
rejoinder, and I would ask if you could cal! the Agent of United Kingdom.
The ACTINGPRESIDENT: Thank you, Professer Higgins, I now call upon 1
Mr. Berman, the distinguished Agent of the United Kingdom.
008lc/CR6/T5/mj - 23 -
Mr. BERMAN:May it please the Court, 1 am glad, Mr. President, that
c:ounsel for the United Kingdom have be'en able to make the
United Kingdom's rejoinder in brief terms, to the arguments raised by the
Applic:ant this morning. That illustrates that the number of real issues
in these proc:eedings is not great, and that the oral hearings have served
their proper purpose whic:h is to expose the essential position of the
Applic:ant and to answer it. In c:onc:luding the oral argument, -on behalf
of my Government, it remains only for me to remind the Court what these
proceedings are all about: this request for an indication of interim
measures of protection.
The case as it has developed presents a number of unusual features.
It is not unusual that the case is highly politic:al, that is more often
the situation before this Court than not. lt is not even unusual that
the case overlaps as to part with an issue of which the Security Council
is actively seised. That too has happened in the past and the counsel
and the Court have found ways to ensure that their respective functions
under the United Nations Charter reinforce and complement one another in
the interests of international peace and security.
What makes this case unique, is that it is the first time ever, in
the history of the Court, or its predecessor, that a Member State has
thought to invoke the procedures of the Court, and not, be it noted, its
substantive competence, but its special, urgent and provisional powers to
indicate measures of an interim character. · To invoke these powers, in
order to place a spoke in the wheels of the Security Council, and in
short, to prevent it from acting. All that was implicit, no doubt, in
the timing of the Application, and the request, and in the phrasing in
•
the measures which was sought, and in the whole prematurity of the
proceeding in terms of the jurisdictional clause on which it was based.
008lc/CR6/T5/mj - 24 -
That these oral proceedings have served to bring the intention
clearly into the light of day, as a result of Professer Suy•s admissions
on Thursday and their repetition this morning.
I respectfully draw the Court's attention to this situation and to
the legal and prudential arguments developed on this matter by
Professer Higgins, on behalf of the United Kingdom.
Mr. President, the second special feature of the case is something
else to which Professer Higgins has referred, namely the allegations of
the threat of unlawful use of force that have been bandied about in Court
by counsel for the Applicant.
I would make but two short points on this. I do so as Agent for the •
Government, and I do so only because it is on those allegations that the
Applicant now cornes to rest a large part of its case for provisional
measures.
First, the evidence of any such threat, and its imminence,
sufficient to justify provisional measures, is not merely thin, it is
non-existent.
•
•
008lc/CR6/T5/mj - 25 -
Professer Higgins has already dealt with this, but I add that the
imputation made against my Government is a serious one, and it is all the
more serious, as it is meant to co-exist with the fact that my Government
is presently taking action, together with ethers, in the Security Council
under the United Nations Charter.
The Court should not be asked to take cognisance of imputations of
this degree of seriousness on the basis of such patently unconvincing
material.
Second, Mr. President, counsel for the Applicant came clean this
morning. What Professer Brownlie developed this mornlng was squarely an
•
allegation that the United Klngdom was in breach of the prohibition on
the threat or use of force under the United Nations Charter. As I
recollect, he referred to Article 2, paragraph 4, of the Charter. He
referred to the Friendly Relations Declaration as constituting an
authentic interpretation of the principles of the Charter. He referred
to the introductory words to Article 2 as importing an obligation on the
Organization as well as the members to act in accordance with the
principles of the Charter. He referred to customary law to the extent
that that might be different from the Charter.
Well, Mr. President, if that is what Libya alleges, what is its
conn.ection with the case before the Court or with the compromisory clause
in Article 14, paragraph 1, of the Monteal Convention? And if a threat
contrary to the Charter is Libya's complaint, then it has a remedy to
hand. The remedy is not in proceedings under the Montreal Convention, it
i is under the United Nations Charter ltself - the instrument which is
alleged to have been violated, or to be about to be violated - and the
•
remedy is of course to take the complaint to the Security Councll under
the Charter and that is precisely what Chapters 6 and 7 of the Charter
0080c/CR6/T6/fac - 26 -
are al! about. It does not do for counsel to come to Court and complain
how difficult it can be for a small State to get a meeting of the
Security Council, since as the Court is aware, the issue is at this very
moment actively engaging the attention of the Security Council and what
the Council has under consideration is the entire complex of Libya's
involvemen.t in terrorism and its consequences, including the threat to
international peace and security.
A third special feature, Mr. President, is that statements were made
in the initial phase of argument about the position of France and it was
said that Libya had undertaken to meet the French demanda which differed 4lt
from those of the two Respondent Parties. 1 have in the meanwhile
checked the official statements of the French Government, up to as late
as the 24 and 26 March, from which it is plain that the French Government
does not share this view but is working in unison with the United Kingdom
and the United States in New York, in the Security Council, for
compliance with its resolution 731.
I draw attention to the fact however, that France is not a party to
the proceedings before this Court, with all the consequences which that
entails.
Mr. President, with out respectful gratitude to the Court and its
•
Members for their attention, including their courtesy in agreeing to sit
at inconvenient times and over the week-end, I have· the honour to present
the final submission of the United Kingdom in the present phase of the
proceedings, which is as follows:
That the Court should decline to indicate interim measures in the
case concerning Questions of Interpretation and Application oE the 1971
•
Montreal Convention arising Erom the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom).
0080c/CR6/T6/fac - 27 -
Mr. President, that concludes the oral argument on behalf of the
United Kingdom.
The ACTINGPRESIDENT: Thank you Mr. Berman, the distinguished Agent
for the United Kingdom. This concludes the Court hearing for the
rejoinder of the United Kingdom. The Court will now rise for a ten
minute break and after that the Court will hear the Rejoinder of the
United States in the case brought by Libya against the United States.
The Court adjourned from 4.25 p.m. to 4.40 p.m.
0080c/CR6/T6/fac
Public sitting held on Saturday 28 March 1992, at 3 p.m., at the Peace Palace, Vice-President Oda presiding