Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document
QUESTIONSOF INTERPRETATIONAND APPLICATIONOF THE 1971 MONTREAL
CONVENTIONARISING FROM THE AERIAL INCIDENTAT LOCKERBIE (LIBYAN
ARABJAMAHIRIYA v. UNITED STATES) (P'ROVISIONALMEASURES)
Order of 14 April 1992
In an Order issued in the case concerning Questionsof The Court then recites the history of the case. It refers
Interpretation and Applicationof the 1971Montreal Con- to the allegations and submissions made by Libya in its
vention arising from the Aerial Incident at Lockerbie Application in which it asks the Court to adjudge and de-
(Libyan Arab Jamahiriya v.United Statesof America),the clare:
Court found, by 11votes to 5, that the circumstances ofthe "(a) that Libya has fully complied with all of its
case were not such as to require the exercise of its power obligations under the Montreal Convention;
under Article 41 of the Statute to indicate provisional (b) that the United States has breached, and is con-
measures. tinuing to breach, its legal obligations to Libya under
articles 5 (2), 5 (3), 7, 8 (2) and 11 of the Montreal
The Court was composed as follows: Vice-President Convention;and
Oda, Acting President; President Sir Robert Jennings;
Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, immediately to cease anddesist from such breaches andtion
Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, fromtheuse of any and all forceorthreats against Libya,
Weeramantry, Ranjeva, Ajibola; Judgead hoc El-Kosheri. including the threat of force against Libya, and fromall
violations of the sovereignty, territorial integrity, and
the political independence of Libya."
The Court also refers to Libya's request (filed, like the
The voting on the Order of the Court on the request for Application, on 3 March 1992,but laterin the day) for the
the indication of provisional measures made by Libya in indictdon of the following provisional measures:
the above case was as follows: "(a) to enjoin the United States from taking any
action against Libya calculated to coerce or compel
IN FAVOUR: Vice-President Oda, Acting President; Libya to surrender the accusedindividuals to anyjuris-
President Sir Robert Jennings; Judges Lachs, Ago, diction outside of Libya; and
Schwebel,Ni, Evensen,Tarassov,Guillaume,Shahabuddeen, . (b) to ensure that no steps are taken that would
Aguilar Mawdsley; prejudice in any way the rights of Libya with respectto
AGAINST:Judges Bedjaoui, Weeramantry, Ranjeva, the legal proceedings that are the subject of Libya's
Application."
Ajibola; Judge ad hoc El-Kosheri. The Court further refersto the observations and submis-
sions presented by both Libya and theUnited States at the
public hearings on the request for the indicationof provi-
sional measures held on26, 27 and 28 March 1992.
Acting President Oda and Judge Ni each appended a The Court then takes noteof thejoint declaration issued
declaration to the Order of the Court; Judges Evensen, on 27 November 1991by the United Statesof America and
Tarassov, Guillaumeand Aguilar Mawdsleyajoint decla- the United Kingdom followingon the charges brought by
ration. a Grand Jury of the United States District Court for the
District of Columbia againstthe two Libyan nationals in
Judges Lachs and Shahabuddeen appended separate conne:ctionwith the destruction of Pan Am flight 103,and
opinions; and Judges Bedjaoui, Weeramantry, Ranjeva and which reads:
Ajibola and Judgead hoc El-Kosheri appended dissenting "The British and AmericanGovernmentstoday declare
opinions to the Order. that the Government of Libya must:
-!surrender for trial all those charged with the crime;
and accept responsibility for the actions of Libyan
officials;
-disclose all it knows of this crime, including the
In its Order, the Court recalls that on 3 March 1992 names of all those responsible, and allow full access
the Libyan Arab Jamahiriya instituted proceedings against 1:oall witnesses, documents and other material evi-
the United States in respect of "a dispute . . .between dence, including allthe remaining timers;
Libya and the United States over the interpretation or -pay appropriate compensation.
application of the Montreal Convention" of 23 September We expect Libya to comply promptly and in full."
1971,a dispute arising fromthe aerialincident that occurred
over Lockerbie, Scotland, on 21 December 1988 and that The Court also takes note of the fact that the subjectof
led to a Grand Jury of the United States District Court that declaration was subsequently considered bythe United
for the District of Columbia indicting, on 14 November Nations Security Council, which on 21 January 1992
199 1, two Libyan nationals, charging, inter alia, that adopted resolution 731(1 992), of which the Court quotes,
they had "caused a bomb to be placed aboard [Pan Am interalia, the following passages:
flight 1031 .. ., which bomb had exploded causing the "Deeply concerned over the results of investigations,
aeroplane to crash". which implicateofficials ofthe LibyanGovernment and
6 which are contained in Security Council documents that After having referred to the observations on Security
include the requests addressed to the Libyan authorities Council resolution 748 (1992) presented by both Parties in
by France, the United Kingdom of Great Britain and response to the Court's invitation (as well as by the Agent
Northern Ireland, and the United States of America of the United States in an earlier communication), the
[S/23308], in connection with the legal procedures re- Court goes on to consider as follows:
lated to the attacks carried out against Pan American
flight 103 and Union de transports aériens flight 772, "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
2. Strongly deplores the fact that the Libyan Govern- the circumstances drawn to its attention as requiring the
ment has not yet responded effectively to the above indication of such measures, but cannot make definitive
requests to cooperate fully in establishing responsibility findings either of fact or of law on the issues relating to
for the terrorist acts referred to above against Pan Ameri- the merits, and the right of the Parties to contest such
can flight 103and Union de transports aériens flight 772; issues at the stage of the merits must remain unaffected
3. Urges the Libyan Government immediately to by the Court's decision;
provide a full and effective response to those requests
so as to contribute to ihe elimination of international bers of the United Nations, are obliged to accept and
terrorism;". carry out the decisions of the Security Council in accord-
The Court further notes that on 31 March 1992 (three ance with Article 25 of the Charter; whereas the Court,
days after the close of the hearings) the Security Council which is at the stage of proceedings on provisional
adopted resolution 748 (1992), stating, inter alia, that the measures, considers that prima facie this obligation ex-
Security Council: tends 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
Deeply concerned that the Libyan Government has prevail over their obligations under any other interna-
still not provided a full and effective response to the tional agreement, including the Montreal Convention;
requests in its resolution 731 (1992) of 21 January 1992,
Whereas the Court, while thus not at this stage called
Convinced that the suppression of acts of international upon to determine definitively the legal effect of Secu-
indirectly involved, is essential for the maintenance ofor rity Council resolution 748 (1992), considers that, what-
international peace and security, ever the situation previous to the adoption of that reso-
lution, the rights claimed by Libya under the Montreal
Convention cannot now be regarded as appropriate for
Determining, in this context, that the failure by the protection by the indication of provisional measures;
Libyan Government to demonstrate by concrete actions Whereas, furthermore, an indication of the measures
its renunciation of terrorism and in particular its con- requested by Libya would be likely to impair the rights
tinued failure to respond fully and effectively to the which appear prima facie to be enjoyed by the United
requests in resolution 731 (1992) constitute a threat to States by virtue of Security Council resolution 748 (1992);
international peace and security,
for provisional measures, the Court is not called upon to
determine any of the other questions which have been
Acting under Chapter VII of the Charter, raised before it in the present proceedings, including the
1. Decides that the Libyan Government must now question of its jurisdiction to entertain the merits of the
comply without any further delay with paragraph 3 of case; and whereas the decision given in these proceed-
resolution 731 (1992) regarding the requests contained ings in no way prejudges any such question, and leaves
in documents S/23306, S/23308 and S/23309; unaffected the rights of the Government of Libya and the
2. Decides also that the Libyan Government must Government of the United States to submit arguments in
commit itself definitively to cease all forms of terrorist respect of any of these questions;
action and all assistance to terrorist groups, and that it
must promptly, by concrete actions, demonstrate its For these reasons,
renunciation of terrorism; THE COURT,
3. Decides that on 15 April 1992 all States shall
adopt the measures set out below, which shall apply until By eleven votes to five,
the Security Council decides that the Libyan Govern- Finds that the circumstances of the case are not such
ment has complied with paragraphs 1and 2 above; as to require the exercise of its power under Article 41
of the Statute to indicate provisional measures."
7. Calls upon all States, including States not mem- Declaration of Vice-President Oda, Acting President
bers of the United Nations, and all international organi-
zations, to act strictly in accordance with the provisions Acting President Oda appended a declaration concurring
of the present resolution, notwithstanding the existence with the Court's decision but expressing his view that it
of any rights or obligations conferred or imposed by any should not have been based solely on the consequences of
international agreement or any contract entered into or Security Council resolution 748 (1992), since this sug-
any licence or permit granted prior to 15 April 1992;". gested the possibility that, prior to the adoption of the reso-
The Court observes that document S/23308, to which lution, the Court could have reached legal conclusions with
reference was made in resolution 748 (1992), included the effects incompatible with the Council's actions, and the
demands made by the United States of America and the Court might in that case be blamed for not having acted
United Kingdom in theirjoint declaration of 27 November sooner. As it happened, the Security Council, applying its
1991, as set out above. own logic, acted with haste in adopting its new resolutionbefore the Court could have reached a considered decision, additional comments. They stressed that, before the Secu-
a fact of which it must have been aware. rity Council became involved in the case, the United States
Acting President Oda is satisfied that the Court pos- and the United Kingdom had been entitled to request Libya
sessed jurisdiction prima facie, despite the six-month rule to extradite the accused and, to that end, to take any action
in article 14 (1) of the Montreal Convention, since the cir- consistent with international law. For its part, Libya was
cumstances had appeared to leave no room to negotiate the entitled to refuse such extradition and to recall in that con-
organization of an arbitration. nection that, in common with the law of many other coun-
However, the essential right of which the protection was tries, its domestic law prohibits the extradition of nationals.
claimed, that of not being forced to extradite one's own The authors then showed that, in this particular case, that
nationals, was a sovereign right under general international situation was not considered satisfactory by the Security
law, whereas the subject-matter of Libya's Application Council which was acting, with a view to combating inter-
consisted of specific rights claimed under the Montreal national terrorism, within the framework of Chapter VII of
the Charter of the United Nations. The Council accordingly
Convention. Given the principle that the rights sought to decided that Libya should surrender the two accused to the
be protected in proceedings for provisional measures must countries that had requested their surrender.
relate to the subject-matter of the case, this meant that the
Court would in any case have had to decline to indicate the Under those circumstances, Judges Evensen, Tarassov,
measures requested. Such a mismatch between the object Guillaume and Aguilar Mawdsley take the view that the
of the Application and the rights sought to be protected Court, pronouncing on a request for the indication of pro-
ought, in the view of the Acting President, to have been visional measures submitted by Libya in order to preserve
the main reason for taking a negative decision, which the legal situation existing prior to the adoption of the
would have been appropriate no less before than after the Security Council resolutions, was fully justified in noting
adoption of resolution 748 (1992). the changes that had been made to that situation by those
resolutions. It was also fully justified in holding that, as
Declaration of Judge Ni a consequence, the circumstances of the case were not
such as to require the exercise of its power to indicate such
Judge Ni, in his declaration, expresses his view that, measures.
according to the jurisprudence of the Court, the fact that a
matter is before the Security Council should not prevent it
from being dealt with by the Court. Although both organs Separate opinion of Judge Lacks
deal with the same matter, there are differing points of The present cases, and the necessity for the Court to
emphasis. In the instant case, the Security Council, as a take an early decision on an interlocutory request, have
political organ, is more concerned with the elimination of brought out into the open problems ofjurisdiction and what
international terrorism and the maintenance of international is known as sub judice. In fact, the Court is the guardian
peace and security, while the International Court of Justice, of legality for the international community as a whole,
as the principal judicial organ of the United Nations, is within and without the United Nations. There is no doubt
more concerned with legal procedures such as questions of that the Court's task is "to ensure respect for international
extradition and proceedings in connection with prosecution law . . . " (I.C.J. Reports 1949, p. 35). It is its principal
of offenders and assessment of compensation, etc. guardian. In the present case, not only has the wider issue
of international terrorism been on the agenda of the Secu-
Concerning Libya's request for provisional measures,
Judge Ni refers to the provisions in the 1971 Montreal rity Council but the latter adopted resolutions 731 (1992)
Convention for the Suppression of Unlawful Acts against and 748 (1992). The Order made should not be seen as an
the Safety of Civil Aviation on which Libya relies. Accord- abdication of the Court's powers. Whether or not the sanc-
ing to article 14 (1) of that Convention, any one of the par- tions ordered by resolution 748 (1992) have eventually to
ties to a dispute may invoke jurisdiction of the Interna- be applied, it is in any event to be hoped that the two prin-
tional Court of Justice if within six months from the date cipal organs concerned will be able to operate with due
of the request for arbitration no agreement is reached on consideration for their mutual involvement in the preser-
the organization of the arbitration. In this case, Libya's vation of the rule of law.
proposed arbitration by a letter of 18 January 1992, only
one-and-a-half months had elapsed before Libya insti- Separate opinion of Judge Shahabuddeen
tuted proceedings in the International Court of Justice on
3 March 1992. In his separate opinion, Judge Shahabuddeen thought
that Libya had presented an arguable case for an indication
Judge Ni considers that Libya's request should be denied of provisional measures but that Security Council resolu-
on the sole ground of the non-fulfilment of the six-month- tion 748 (1992) had the legal effect of rendering unenforce-
period requirement, without having to decide at the same able the rights claimed by Libya. The decision of the Court,
time on the other issues. Consequently, Libya will not be he said, resulted not from any collision between the com-
prevented from seeking a remedy of the Court in accord- petence of the Security Council and the competence of the
ance with the provisions of the 1971 Montreal Convention, Court, but from a collision between the obligations of
if, months later, the dispute still subsists and if the Appli- Libya under the resolution of the Security Council and any
cant so desires. obligations which Libya had under the Montreal Conven-
Joint declaration of Judges Evensen, Tarassov, tion. Under the Charter, the obligations under the resolu-
Guillaume and Aguilar Mawdsley tion of the Security Council prevailed.
Judge Shahabuddeen noted that the Respondent's de-
Judges Evensen, Tarassov, Guillaume and Aguilar mand for the surrender of the two accused Libyan nationals
Mawdsley, in ajoint declaration, expressed their complete was based largely on the view that an impartial trial could
agreement with the decision of the Court, but made some not be had in Libya. However, the Respondent's demandthat "Libya . . . must pay appropriate compensation . . . nuance mentioned, as a result of which he does not reject
promptly and in full" presupposed a determination by the the request for interim measures but, rather, declares that
Respondent that the accused were guilty, since the respon- its effects have disappeared.
sibility of the Libyan State was premised on the guilt of
That said, Judge Bedjaoui is of the view that the Court
the accused. Consequently, there was an issue as to possi- could not have avoided ordering provisional measures on
ble prejudgment of the case by the Respondent. the basis of the circumstances of the case submitted to it,
even though the effects of such a decision were negated by
Dissenting opinion of Judge Bedjaoui resolution 748 (1992). It should be added that, even assum-
ing that the majority entertained some doubt, which he per-
Judge Mohammed Bedjaoui proceeds from the idea that sonally did not share, as to whether the requesting State
there exist two altogether distinct disputes, one legal, the could fulfil one or another of the prerequisites to an indi-
other practical. The former concerns the extradition of two cation of provisional measures, the Court could have made
nationals and is dealt with, as a legal matter, before the use of the power to indicate itself any provisional measure
International Court of Justice at the request of Libya, that it would have considered to be more appropriate than
whereas the latter concerns the wider question of State those sought by the requesting State.
terrorism as well as the international responsibility of the
Libyan State and, for its part, is being dealt with, politi- Consequently, the Court could have decided to indicate
cally, before the Security Council at the request of the provisional measures in the very general terms of an ex-
United Kingdom and the United States. hortation to all the Parties not to aggravate or extend the
Judge Bedjaoui considers that Libya was fully within its dispute. Thus, assuming that the Court would in this case
rights in bringing before the Court, with a view to itsjudi- have been justified in considering that one or another pre-
cial settlement, the dispute concerning the extradition, just requisite to the indication of certain specific measures was
as the United Kingdom and the United States were fully lacking, it had at least one resource, namely, to adopt a
within their rights in bringing before the Security Council, general, distinct, measure taking the form of an appeal to
with a view to its political settlement, the dispute on the the Parties not to aggravate or extend the dispute, or of an
international responsibility of Libya. The situation should, exhortation addressed to them to come together for the pur-
in the opinion of Judge Bedjaoui, be summarized as fol- pose of settling the dispute amicably, either directly, or
through the Secretariat of the United Nations or that of the
lows: he is of the view, on the one hand, that the rights Arab League, thus conforming to what is nowadays estab-
claimed by Libya exist prima facie and that all of the con- lished practice.
ditions normally required by the Court for the indication
of provisional measures are fulfilled in this case so that Moreover, given the grave circumstances of the present
these rights may be preserved in accordance with Article 41 case, would an indication of a provisional measure of
of the Statute of the Court. And it is on this point that this nature not have been an elegant way of breaking out
Judge Bedjaoui expressed reservations with regard to the of the impasse arising from the opposition between, on
two Orders of the Court. But it should also be noted that the one hand, the more specific provisional measures that
Security Council resolution 748 (1992) has annihilated the Court should have ordered to meet the wishes of the
these rights of Libya, without it being possible, at this stage requesting State and, on the other, Security Council reso-
of provisional measures, of, in other words, a prima facie lution 748 (1992), which would in any event have negated
pre-examination, for the Court to take it upon itself to the effects of such an order? This would have been an
decide prematurely the substantive question of the consti- elegant way of sidestepping the main difficulty, and also a
tutional validity of that resolution, for which reason the really beneficial way of doing so, in the interests of every-
resolution benefits from a presumption of validity and must
prima facie be held to be lawful and binding. He is there- one, by assisting in the settlement of the dispute through
fore in agreement with the Court as to this second point. methods that appear likely to be used.
Judge Bedjaoui therefore regrets that the Court was
The situation thus characterized, with rights that deserve unable to indicate either specific provisional measures of
to be protected through the indication of provisional meas- the kind sought by the requesting States, or, proprio motu,
ures but which are almost immediately negated by a reso- general measures, a way that would have enabled it to
lution of the Security Council that deserves to be consid- make its own positive contribution to the settlement of the
ered valid prima facie, does not fall precisely within the dispute. This is why, in the last analysis, he could not but
bounds of Article 103 of the Charter; it sxceeds them vote against the two Orders.
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 Dissenting opinion of Judge Weeramantry
the proceedings such a "conflict", governed by Article 103
of the Charter, resulted, in effect, in any indication of Judge Weeramantry, in his dissenting opinion, expressed
provisional measures being ineffectual. But the operative the view that the circumstances invoked by the Applicant
parts of the two Orders remain at the threshold of the whole appeared prima facie to afford a basis for the Court's
operation inasmuch as the Court states therein that, having jurisdiction.
regard to the circumstances, there is no reason for it to The opinion draws attention to the unique nature of the
exercise its power of indicating provisional measures. The present case in that it is the first time the International
qualification made by Judge Bedjaoui is that in the present Court and the Security Council have been approached by
case the effective exercise of this power was justified; but
he also observes that the effects of that exercise had been opposite parties to the same dispute. This raised new ques-
nullified by resolution 748 (1992). Judge Bedjaoui there- tions which needed to be discussed in the light of the
fore arrives, concretely, at the same result as the Court, via respective powers of the Council and the Court under the
an entirely different route but also with the important Charter of the United Nations and in the light of their
relationship to each other. After an examination of the relevant Articles of the gua v. United States of America) and the Frontier Dispute
Charter and of the travaux préparatoires of Articles 24 (2) cases.
and (1) in particular, the opinion concludes that the Court
is not debarred from considering matters which the Secu- In the view of Judge Ranjeva, the new dimensions of the
rity Council has considered under Chapter VI. Further- problem meant that the Court was unable to limit itself
more, the Security Council, in discharging its duties, is to a passive approach to its legal function, which, in a
required to act in accordance with the principles of inter- dynamic sense, falls within the scope of the fundamental
national law. obligation set out in Article 1, paragraph 1, of the Charter
of the United Nations, namely, the maintenance of peace
The Court is a coordinate body of the Security Council within the context of its role.
and, in its proper sphere of determining disputes, examines
and decides questions of international law according to legal Dissenting opinion of Judge Ajibola
principles and judicial techniques. In regard to matters
properly before it, the Court's function is to make judicial Judge Ajibola, in his dissenting opinion, regrets that the
decisions according to law and it would not be deflected Court, by a majority decision, declined to indicate provi-
from this course by the fact the same matter has been sional measures even though Libya established sufficient
considered by the Security Council. However, decisions warrant for its doing so under the applicable provisions of
made by the Security Council under Chapter VII are the Court's Statute and Rules.
prima facie binding on all Members of the United Nations He strongly believes that, even if the Court concluded
and would not be the subject of examination by the Court. that such measures should be declined because of the pos-
Judge Weeramantry concludes that resolution 731 (1992) sible effect of Security Council resolution 748 (1992), the
is only recommendatory and not binding but that resolution resolution did not raise any absolute bar to the Court's
748 (1992) is prima facie binding. making in its Order pronouncements clearly extraneous to
the resolution and definitely not in conflict with it.
The opinion concludes that provisional measures can be
indicated in such a manner as not to conflict with resolu- He goes on to stressthe Court's powers, especially under
tion 748 (1992) and indicates such measures proprio motu Article 75 of its Rules, to indicate provisional measures
against both Parties preventing such aggravation or exten- proprio motu, quite independently of the Applicant's re-
sion of the dispute as might result in the use of force by quest, for the purpose of ensuring peace and security
either or both Parties. This action is based on Article 41 of among nations, and in particular the Parties to the case. It
the Statute and Articles 73,74 and 75 of the Rules of Court. should therefore, pendente lite, have indicated provisional
measures based on Article 41 of the Statute and Articles
Dissenting opinion of Judge Ranjeva 73, 74 and 75 of the Rules of Court, with a view to pre-
venting any aggravation or extension of the dispute which
In his dissenting opinion, Judge Ranjeva considers might result in the use of force by either Party or by both
that the present dispute goes beyond the framework of Parties.
relations between the Parties to the dispute and concerns
the right of all States bound by the Montreal Convention. Dissenting opinion of Judge ad hoc El-Kosheri
Given his right to choose, in accordance with the principle
aut dedere aut judicare, the Applicant was justified in Judge ad hoc El-Kosheri, in his dissenting opinion,
requesting the Court to indicate provisional measures; focused mainly on the legal reasons which led him to main-
this right was incontestable until the date of the adoption tain that paragraph 1 of Security Council resolution 748 (1992)
of resolution 748 (1992). The fundamental change of cir- should not be considered having any legal effect on the
cumstances that occurred subsequent to the filing of the jurisdiction of the Court, even on a prima facie basis, and
Application, without any alteration in the factual circum- accordingly the Libyan request for provisional measures
stances of the case, prevented the Court from exercising its has to be evaluated in conformity with habitual pattern as
legal function to the full extent of its powers. reflected in the established jurisprudence of the Court. In
the light of the rules relied upon in the recent cases, he
But, contrary to the opinion of the majority of the Mem- came to the conclusion that the Court should act proprio
bers of the Court, Judge Ranjeva considers that, bearing in motu to indicate measures having for effect:
mind the development of case-law relating to the applica-
tion of Articles 41 of the Statute and 75 of the Rules, as —pending a final decision of the Court, the two suspects
well as the autonomous nature of an appeal by the Court whose names are identified in the present proceedings
to the Parties in relation to the indication of provisional should be placed under the custody of the governmental
measures (case concerning Passage through the Great Belt authorities in another State that could ultimately provide
(Finland v. Denmark)), [the Court could indicate] meas- a mutually agreed-upon convenient forum for their trial;
ures consisting, among other things, of an appeal to the —moreover, the Court could have indicated that the Par-
Parties enjoining them to adopt a line of conduct which ties should each of them ensure that no action of any
would prevent the aggravation or extension of the conflict. kind is taken which might aggravate or extend the dis-
For such was the posture of the Court in the Military and pute submitted to the Court or likely to impede the
Paramilitary Activities in and against Nicaragua (Nicara- proper administration of justice.
10
Summary of the Order of 14 April 1992