INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 14 APRIL 1992

1992

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES QUESTIONS
D'INTERPRÉTATION ET D’APPLICATION
DE LA CONVENTION DE MONTREAL DE 1971
RESULTANT DE L’INCIDENT AERIEN
DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ETATS-UNIS
D’AMERIQUE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 14 AVRIL 1992
Official citation :

Questions of Interpretation and Application of the 1971 Montreal Conven-

tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya

v. United States of America), Provisional Measures, Order of 14 April 1992,
I.CJ. Reports 1992, p. 114

Mode officiel de citation :

Questions d'interprétation et d'application de la convention de Montréal de

1971 résultant de l'incident aérien de Lockerbie (Jamahiriya arabe libyenne

c. Etats-Unis d'Amérique), mesures conservatoires, ordonnance du 14 avril
1992, C.J. Recueil 1992, p. 114

Sales number 6 08
N° de vente :

114

INTERNATIONAL COURT OF JUSTICE

1992 YEAR 1992
14 April
General List
No. 89 14 April 1992

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

REQUEST FOR THE INDICATION
OF PROVISIONAL MEASURES

ORDER

Present: Vice-President Oba, Acting President; President Sir Robert
JENNINGS; Judges LACHS, AGO, SCHWEBEL, BEDJAOUI, NI,
EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, AGUILAR
MAWDSLEY, WEERAMANTRY, RANJEVA, AJIBOLA; Judge ad hoc
EL-KOSHERI; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court, and to
Articles 73 and 74 of the Rules of Court,

4
115 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

Having regard to the Application by the Socialist People’s Libyan Arab
Jamahiriya (hereinafter called “Libya”) filed in the Registry of the Court
on 3 March 1992, instituting proceedings against the United States of
America (hereinafter called “the United States”) in respect of “a dis-
pute ... between Libya and the United States over the interpretation or
application of the Montreal Convention” of 23 September 1971, a dispute
arising from acts resulting in the aerial incident that occurred over Lock-
erbie, Scotland, on 21 December 1988,

Makes the following Order:

{. Whereas by its above-mentioned Application Libya founds the
jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the
Court and Article 14, paragraph 1, of the Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation done at Montreal on
23 September 1971 (referred to hereinafter as the “Montreal Conven-
tion”), instruments to which Libya and the United States are both parties;

2. Whereas in its Application Libya refers to the destruction of Pan Am
flight 103 on 21 December 1988 over Lockerbie, in Scotland; whereas in
its Application Libya further states that

“On 14 November 1991, a Grand Jury of the United States District
Court for the District of Columbia, United States of America,
indicted two Libyan nationals (the ‘accused’) charging, inter alia, that
they had caused a bomb to be placed aboard (that flight] ... which
bomb had exploded causing the aeroplane to crash”;

and whereas Libya also refers, in this connection, to Article 1 of the
Montreal Convention, contending that the acts alleged by the indictment
constitute an offence within the meaning of that provision;

3. Whereas, in its Application, Libya claims that the Montreal Conven-
tion is the only appropriate convention in force between the Parties deal-
ing with such offences, and that the United States is bound by its legal
obligations under the Montreal Convention, which require it to act in
accordance with the Convention, and only in accordance with the Con-
vention, with respect to the matter involving Pan Am flight 103 and the
accused;

4. Whereas, in its Application, Libya submits that, while it has itself
fully complied with all of its own obligations under the Montreal Conven-
tion, the United States has breached and is continuing to breach its obliga-
tions to Libya under Article 5, paragraph 2, Article 5, paragraph 3,
Article 7, Article 8, paragraph 2, and Article 11 of the Convention which
provide as follows:

“Article 5. ...
116 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

may be necessary to establish its jurisdiction over the offences men-
tioned in Article 1, paragraph 1 (a), (b) and (c), and in Article 1, para-
graph 2, in so far as that paragraph relates to those offences, in the
case where the alleged offender is present in its territory and it does
not extradite him pursuant to Article 8 to any of the States mentioned
in paragraph 1 of this Article.

3. This Convention does not exclude any criminal jurisdiction
exercised in accordance with national law.”

“Article 7. The Contracting State in the territory of which the
alleged offender is found shall, if it does not extradite him, be
obliged, without exception whatsoever and whether or not the
offence was committed in its territory, to submit the case to its
competent authorities for the purpose of prosecution. Those authori-
ties shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State.”

“Article 8...

2. If a Contracting State which makes extradition conditional on
the existence of a treaty receives a request for extradition from
another Contracting State with which it has no extradition treaty, it
may at its option consider this Convention as the legal basis for extra-

dition in respect of the offences. Extradition shall be subject to the
other conditions provided by the law of the requested State.

3. ...
4....”

“Article 11. 1. Contracting States shall afford one another the
greatest measure of assistance in connection with criminal proceed-
ings brought in respect of the offences. The law of the State requested
shall apply in all cases.

2. The provisions of paragraph 1 of this Article shall not affect
obligations under any other treaty, bilateral or multilateral, which
governs or will govern, in whole or in part, mutual assistance in crimi-
nal matters”:

5. Whereas it is stated in the Application that at the time the charge was
communicated to Libya, or shortly thereafter, the accused were present in
the territory of Libya; that after being apprised of the charge, Libya took
such measures as were necessary to establish its jurisdiction over the
offences charged, pursuant to Article 5, paragraph 2, of the Montreal
Convention; that Libya also took measures to ensure the presence of the
accused in Libya in order to enable criminal proceedings to be instituted,
that it initiated a preliminary enquiry into the facts and that it submitted
the case to its competent authorities for the purpose of prosecution; that

6
117 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

Libya has not extradited the accused, there being no extradition treaty in
force between it and the United States, and no basis for the extradition of
the accused under Article 8, paragraph 2, of the Montreal Convention,
since this provision subjects extradition to the law of the requested State
and Libyan law prohibits the extradition of Libyan nationals; and that,
pursuant to Article 11, paragraph 1, of the Montreal Convention, Libya
has sought judicial assistance from the United States in connection with
the criminal proceedings instituted by Libya, with the competent Libyan
authorities offering to co-operate with the investigations in the
United States or in other countries, but that the United States together
with its law enforcement officials have refused to co-operate in any
respect with the Libyan investigations;

6. Whereas it is further alleged in the Application of the Libyan Gov-
ernment that the United States has clearly shown that it is not interested in
proceeding within the framework of the Montreal Convention but on the
contrary is intent on compelling the surrender to it of the accused, in viola-
tion of the provisions of that Convention; that, more specifically, the
United States, by its actions and threats against Libya, seeks, in violation
of Article 5, paragraph 2, of the Montreal Convention, to prevent Libya
from establishing its legitimate jurisdiction to deal with the matter; that,
by its actions and threats, the United States seeks, in violation of the Mont-
real Convention, to prevent Libya from exercising the right conferred
upon it by Article 5, paragraph 3, of that Convention, to exercise its crimi-
nal jurisdiction to deal with the matter in accordance with its national law;
that by seeking to force Libya to surrender the accused, the United States
is attempting, in violation of the Montreal Convention, to prevent Libya
from fulfilling its obligations under Article 7 of the Convention to submit
the case to its competent authorities for the purpose of prosecution, and
that the efforts made by the United States to force Libya to surrender the
accused also constitute a violation of Article 8, paragraph 2, of that Con-
vention under which extradition is made subject to the laws of the State
from which extradition is requested; and that by refusing to provide
details of its investigation to the competent authorities in Libya or to co-
operate with them, the United States has failed to fulfil the obligation to
afford assistance in criminal matters to Libya, as provided in Article 11,
paragraph 1, of the Montreal Convention, and has breached its obliga-
tions under that Convention;

7. Whereas Libya, in its Application, asks the Court to adjudge and
declare:

“(a) that Libya has fully complied with all of its obligations under
the Montreal Convention;
(b) that the United States has breached, and is continuing to breach,
its legal obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2)
and 11 of the Montreal Convention; and
118 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

(c) that the United States is under a legal obligation immediately to
cease and desist from such breaches and from the use of any and
all force or threats against Libya, including the threat of force
against Libya, and from all violations of the sovereignty, territo-
rialintegrity, and the political independence of Libya”;

8. Whereas, later on 3 March 1992, the day on which the Application
was filed, the Libyan Government also filed an “urgent request that the
Court indicate provisional measures which ought to be taken promptly to
preserve the rights of Libya”, referring to Article 41 of the Statute of the
Court and to Articles 73, 74 and 75 of the Rules of Court; and whereas in
that request Libya, referring to Article 74, paragraph 4, of the Rules of
Court, also requested the President, pending the meeting of the Court, to
exercise the power conferred on him by that provision to call upon the
Parties to act in such a way as to enable any Order the Court might make
on Libya’s request for provisional measures to have its appropriate
effects;

9. Whereas in its request for the indication of provisional measures,
Libya, referring to the statement of facts in its Application, alleged that the
United States was actively seeking to bypass the provisions of the Mont-
real Convention by threatening various actions against Libya in order to
compel Libya, in violation of the Convention, to surrender its two accused
nationals; whereas Libya affirmed in the request that the United States
had indicated that it might seek or impose economic, air and other sanc-
tions against Libya if Libya did not comply with the demands of the
United States, and that the latter had refused to rule out the use of armed
force against Libya; and that Libya considered that such actions would
clearly be illegal and inappropriate under the applicable provisions of the
Montreal Convention, particularly when Libya was itself complying in
full with that Convention;

10. Whereas in its request for the indication of provisional measures
Libya further submitted that inasmuch as the dispute involved the inter-
pretation or application of the Montreal Convention, it was for the Court
alone to rule on the validity of the actions of Libya and the United States
under that Convention; that only by granting provisional measures
enjoining the United States from taking such actions against Libya was it
possible to prevent Libya’s rights from being irreparably prejudiced either
in fact or in law; and that provisional measures were also urgently
required in order to cause the United States to abstain from any action
capable of having a prejudicial effect on the Court’s decision in the case
and to refrain from taking any step that might aggravate or extend the
dispute, as would surely happen if sanctions were imposed against Libya
or force were employed;
119 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

11. Whereas Libya, considering that the Court’s jurisdiction in the case
was prima facie established under the Montreal Convention, submitted
that there were no impediments to indicating provisional measures and
accordingly requested the Court to indicate forthwith provisional mea-
sures:

“(a) to enjoin the United States from taking any action against Libya
calculated to coerce or compel Libya to surrender the accused
individuals to any jurisdiction outside of Libya; and

(b) to ensure that no steps are taken that would prejudice in any way
the rights of Libya with respect to the legal proceedings that are
the subject of Libya’s Application”;

12. Whereas on 3 March 1992, the date on which the Application and
the request for the indication of provisional measures were filed in the
Registry, the Registrar transmitted by facsimile to the Government of
the United States a certified copy of the Application, in accordance with
Article 40, paragraph 2, of the Statute and Article 38, paragraph 4, of the
Rules of Court, and a certified copy of the request for the indication of
provisional measures, in accordance with Article 73, paragraph 2, of the
Rules of Court;

13. Whereas, in accordance with Article 40, paragraph 3, of the Statute
of the Court and Article 42 of the Rules of Court, copies of the Applica-
tion were transmitted to the Members of the United Nations through the
Secretary-General of the United Nations, and to the other States entitled
to appear before the Court;

14. Whereas, by a letter of 6 March 1992, a copy of which was trans-
mitted to Libya by the Registrar, the Legal Adviser of the United States
Department of State, referring to the specific request made by Libya
under Article 74, paragraph 4, of the Rules of Court, in its request for the
indication of provisional measures, stated inter alia that

“taking into account both the absence of any concrete showing of
urgency relating to the request and developments in the ongoing
action by the Security Council and the Secretary-General in this
matter ... the action requested by Libya ... is unnecessary and
could be misconstrued” ;

15, Whereas, on 12 March 1992, the Registrar, in accordance with Ar-
ticle 69, paragraph 3, of the Rules of Court, sent the International Civil
Aviation Organization the notification provided for in Article 34, para-
graph 3, of the Statute of the Court; and whereas on 25 March 1992, the
Registrar, in accordance with Article 43 of the Rules of Court, sent the
notification provided for in Article 63 of the Statute to the States, other
than the Parties to the dispute, which, on the basis of information supplied
by the depositary Governments, appeared to be parties to the Montreal
Convention of 23 September 1971;

9
120 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

16. Whereas, the Court not including upon the Bench a judge of
Libyan nationality, the Libyan Government availed itself of the provi-
sions of Article 31, paragraph 2, of the Statute of the Court to choose
Mr. Ahmed Sadek El-Kosheri to sit as Judge ad hocin the case;

17. Whereas, having regard to the wishes expressed by the Parties, the
Vice-President of the Court, exercising the functions of the presidency in
the case, fixed 26 March 1992 as the date for the opening of the oral pro-
ceedings on the request for the indication of provisional measures, in
accordance with Article 74, paragraph 3, of the Rules of Court, and the
Parties were informed of this decision on 6 March 1992;

18. Whereas on 26 March 1992, at the opening of the hearings on the
request for the indication of provisional measures, the Vice-President of
the Court, exercising the functions of the presidency in the case, referred,
inter alia, to the request made by Libya under Article 74, paragraph 4, of
the Rules of Court and stated that after the most careful consideration of
all the circumstances then known to him he had come to the conclusion
that it would not be appropriate for him to exercise the discretionary
power conferred on the President by that provision;

19. Whereas oral observations of the Parties on the request for the indi-
cation of provisional measures were presented, at public hearings held
pursuant to Article 74, paragraph 3, of the Rules of Court, on 26, 27 and
28 March 1992, by the following representatives :

on behalf of Libya:
H.E. Mr. Al Faitouri Sh. Mohamed, Agent,
Mr. Ian Brownlie, Q.C.,

Mr. Jean Salmon,
Mr. Eric Suy;

on behalf of the United States:
The Hon. Edwin D. Williamson, Agent,
Mr. Alan J. Kreczko, Deputy Agent,
Mr. Bruce C. Rashkow,
Mr. Charles N. Brower,
Mr. Jonathan B. Schwartz;

and whereas during the hearings questions were put by Judges, to which
the Parties subsequently replied in writing, within the time-limit fixed
pursuant to Article 61, paragraph 4, of the Rules of Court;

20. Whereas at the hearing held on 28 March 1992 (morning), Libya
presented the following submissions:

“Libya hereby confirms that it is requesting the Court to indicate
the following provisional measures:

(a) to enjoin ... the United States . . . from taking against Libya
measures calculated to exert coercion on it or compel it to sur-

10
121 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

render the accused individuals to any jurisdiction outside of Libya;
and

(b) to ensure that no steps are taken that could prejudice in any way
the rights of Libya with respect to the proceedings instituted by
Libya’s Applications”;

21. Whereas at the hearing held on 28 March 1992 (afternoon), the
United States presented the following submission:

“ May it please the Court,

On behalf of the United States of America, to reject the request of
the Government of the Great Socialist People’s Libyan Arab Jama-
hiriya for the indication of provisional measures of protection, and
not to indicate any such measures”;

+ * x

22. Whereas Article 14, paragraph 1, of the Montreal Convention,
relied on by Libya as basis of jurisdiction in the case, reads as follows:

“Any dispute between two or more Contracting States concerning
the interpretation or application of this Convention which cannot be
settled through negotiation, shall, at the request of one of them, be
submitted to arbitration. If within six months of the date of the
request for arbitration the Parties are unable to agree on the organiza-
tion of the arbitration, any one of those Parties may refer the dispute
to the International Court of Justice by request in conformity with
the Statute of the Court”;

23. Whereas, in its Application, Libya states that a dispute exists
between Libya and the United States as to the interpretation or applica-
tion of the Montreal Convention; that it has not been possible to settle this
dispute by negotiation; that a request by Libya to the United States for
arbitration of the dispute has been rejected by the United States, and that
the Parties have been unable to agree on the organization of such an arbi-
tration; and that in the light of the urgency of rectifying the continuing
violations by the United States of the Montreal Convention and the
United States refusal to enter into arbitration, the Court has jurisdiction to
hear Libya’s claims arising under the Montreal Convention; whereas, in
its request for the indication of provisional measures, Libya submitted
that the Court’s jurisdiction in the case was prima facie established under
the Montreal Convention; and whereas in the course of the oral proceed-
ings, Libya confirmed those views and further contended that the various
conditions laid down by Article 14, paragraph 1, of the Montreal Conven-
tion had been fulfilled, including the requirement related to the six-month
period;

11
122 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

24. Whereas, in the course of the oral proceedings Libya also submitted
that the rights for which it sought protection were established; that these
rights were the subject of the principal Application; that the circum-
stances disclosed a risk of imminent irreparable damage to these rights;
and that the exercise by the Court and the Security Council of their
respective powers did not in any way conflict;

25. Whereas in the course of the oral proceedings the United States
contended that the requested provisional measures should not be indi-
cated because Libya had not presented a prima facie case that the provi-
sions of the Montreal Convention provide a possible basis for jurisdiction
inasmuch as the six-month period prescribed by Article 14, paragraph 1,
of the Convention had not yet expired when Libya’s Application was
filed; and that Libya had not established that the United States had
refused to arbitrate;

26. Whereas the United States also contended that Libya had not
demonstrated that provisional measures were necessary to protect rights
at imminent risk of irreparable injury; that there was no proof that “the
United States was threatening Libya with economic sanctions and other
actions, including the probability of recourse to the use of armed force”,
as alleged by Libya;

27. Whereas the United States also argued that the requested measures
did not relate to the rights claimed in the Application; that Libya had
failed to establish the possible existence of the rights it claimed under the
Montreal Convention; and that the requested measures would not pre-
serve the rights of the United States;

28. Whereas the United States also contended that the Security Coun-
cil was actively seised of the situation which was the subject of the Appli-
cation and that therefore the Court should not indicate provisional
measures;

29. Whereas the United States further contended that the requested
provisional measures were improperly directed to restraining action in the
Security Council, including participation by Member States;

30. Whereas, following on the charges brought by a Grand Jury of the
United States District Court for the District of Columbia against the two
Libyan nationals in connection with the destruction of Pan Am flight 103,
the United States and the United Kingdom issued on 27 November 1991
the following joint declaration:

“The British and American Governments today declare that the
Government of Libya must:

— surrender for trial all those charged with the crime; and accept
responsibility for the actions of Libyan officials;

12
123 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

— disclose all it knows of this 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;

— pay appropriate compensation.
We expect Libya to comply promptly and in full”;

31. Whereas the subject of that declaration was subsequently consid-
ered by the United Nations Security Council, which on 21 January 1992
adopted resolution 731 (1992), of which the paragraphs here material read
as follows:

“The Security Council,

Deeply disturbed by the world-wide persistence of acts of interna-
tional terrorism in all its forms, including those in which States are
directly or indirectly involved, which endanger or take innocent lives,
have a deleterious effect on international relations and jeopardize
the security of States,

Deeply concerned by all illegal activities directed against interna-
tional civil aviation, and affirming the right of ail States, in accord-
ance with the Charter of the United Nations and relevant principles
of international law, to protect their nationals from acts of inter-
national terrorism that constitute threats to international peace and
security,

Deeply concerned over the results of investigations, which implicate
officials of the Libyan Government and which are contained in Secu-
rity Council documents that include the requests addressed to the
Libyan authorities by France! 2, the United Kingdom of Great Brit-
ain and Northern Ireland? and the United States of America? + Sin
connection with the legal procedures related to the attacks carried
out against Pan American flight 103 and Union de transports aériens
flight 772;

2. Strongly deplores the fact that the Libyan Government has not
yet responded effectively to the above requests to cooperate fully in
establishing responsibility for the terrorist acts referred to above
against Pan American flight 103 and Union de transports aériens
flight 772; |

3. Urges the Libyan Government immediately to provide a full
and effective response to those requests so as to contribute to the
elimination of international terrorism;

1 §/23306; 2 S/23309; 3 S/23307; 4 S/23308; 5 S/23317”;

13
124 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

32. Whereas in the course of the oral proceedings reference was made
by both sides to the possibility of sanctions being imminently imposed by
the Security Council on Libya in order to require it, inter alia, to surrender
the accused to the United States or the United Kingdom;

33. Whereas Libya contended that provisional measures were urgently
required in order to cause the United States to abstain from any action
capable of having a prejudicial effect on the Court’s decision in the case,
and more specifically to refrain from taking any initiative within the Secu-
rity Council for the purpose of impairing that right to exercise jurisdic-
tion, which Libya asks the Court to recognize;

34. Whereas on 31 March 1992 (three days after the close of the hear-
ings) the Security Council adopted resolution 748 (1992) stating inter alia
that the Security Council:

Deeply concerned that the Libyan Government has still not pro-
vided a full and effective response to the requests in its resolution 731
(1992) of 21 January 1992,

Convinced that the suppression of acts of international terrorism,
including those in which States are directly or indirectly involved, is
essential for the maintenance of international peace and security,

Determining, in this context, that the failure by the Libyan Govern-
ment to demonstrate by concrete actions its renunciation of terrorism
and in particular its continued failure to respond fully and effectively
to the requests in resolution 731 (1992) constitute a threat to interna-
tional peace and security,

Acting under Chapter VII of the Charter,

1. Decidesthat the Libyan Government must now comply without
any further delay with paragraph 3 of resolution 731 (1992) regard-
ing the requests: contained in documents S/23306, S/23308 and
S/23309;

2. Decides also that the Libyan Government must commit itself
definitively to cease all forms of terrorist action and all assistance to
terrorist groups and that it must promptly, by concrete actions,
demonstrate its renunciation of terrorism;

3. Decides that, on 15 April 1992 all States shall adopt the mea-
sures set out below, which shall apply until the Security Council
decides that the Libyan Government has complied with paragraphs 1
and 2 above;

14
125 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

7. Calls upon all States, including States not members of the
United Nations, and all international organizations, to act strictly in
accordance with the provisions of the present resolution, notwith-
standing the existence of any rights or obligations conferred or
imposed by any international agreement or any contract entered into
or any licence or permit granted prior to 15 April 1992”;

35. Whereas, by a letter of 2 April 1992, a copy of which was trans-
mitted to Libya by the Registrar, the Agent of the United States drew
the Court’s attention to the adoption of Security Council resolution 748
(1992) the text of which he enclosed; and whereas, in that letter, the Agent
stated:

“That resolution, adopted pursuant to Chapter VII of the United
Nations Charter, ‘decides that the Libyan Government must now
comply without any further delay with paragraph 3 of resolution 731
(1992) of 21 January 1992 regarding the requests contained in docu-
ments S/23306, S/23308 and S/23309’. It will be recalled that the ref-
erenced requests include the request that Libya surrender the two
Libyan suspects in the bombing of Pan Am flight 103 to the United
States or to the United Kingdom. For this additional reason, the
United States maintains its submission of 28 March 1992 that the
request of the Government of the Great Socialist People’s Libyan
Arab Jamahiriya for the indication of provisional measures of
protection should be denied, and that no such measures should be
indicated”;

36. Whereas document $/23308, to which reference was made in reso-
lution 748 (1992), included the demands set out in paragraph 30 above;

37. Whereas the Registrar, on the instructions of the Court, informed
the Parties, on 4 April 1992, that, in accordance with Article 62 of the
Rules of Court, the Court was willing to receive, no later than 7 April 1992,
any observations the Parties might wish to transmit to it on the possible
implications of Security Council resolution 748 (1992) for the proceedings
before the Court;

38. Whereas in its observations on Security Council resolution 748
(1992) presented in response to the Court’s invitation, Libya contends as
follows: first, that that resolution does not prejudice the rights of Libya to
request the Court to indicate provisional measures, inasmuch as by decid-
ing, in effect, that Libya must surrender its nationals to the United States
and the United Kingdom, the Security Council infringes, or threatens to
infringe, the enjoyment and the exercise of the rights conferred on Libya
by the Montreal Convention and its economic, commercial and diplo-
matic rights; whereas Libya therefore claims that the United States and
the United Kingdom should so act as not to infringe Libya’s rights, for
example by seeking a suspension of the relevant part of resolution 748
(1992);

15
126 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

39. Whereas Libya in its observations contends, secondly, that the risk
of contradiction between the resolution and the provisional measures
requested of the Court by Libya does not render the Libyan request inad-
missible, since there is in law no competition or hierarchy between the
Court and the Security Council, each exercising its own competence;
whereas Libya recalls in this connection that it regards the decision of the
Security Council as contrary to international law, and considers that the
Council has employed its power to characterize the situation for purposes
of Chapter VII simply as a pretext to avoid applying the Montreal Con-
vention.

40. Whereas in its observations on Security Council resolution 748
(1992), presented in response to the Court’s invitation, the United States
observes that that resolution was adopted under Chapter VII rather than
Chapter VI of the Charter and was framed as a “decision” and contended
that, given that binding decision, no object would be served by provisional
measures; that, irrespective of the right claimed by Libya under the Mont-
real Convention, Libya has a Charter-based duty to accept and carry out
the decisions in the resolution, and other States have a Charter-based duty
to seek Libya’s compliance; that any indication of provisional measures
would run a serious risk of conflicting with the work of the Security Coun-
cil; that the Council had rejected (inter alia) Libya’s contention that the
matter should be addressed on the basis of the right claimed by Libya
under the Montreal Convention, which Libya asks the Court to protect
through provisional measures; and that the Court should therefore
decline the request;

41. Whereas the Court, in the context of the present proceedings on a
request for provisional measures, has in accordance with Article 41 of the
Statute, to consider the circumstances drawn to its attention as requiring
the indication of such measures, but cannot make definitive findings
either of fact or of law on the issues relating to the merits, and the right of
the Parties to contest such issues at the stage of the merits must remain
unaffected by the Court’s decision;

42. Whereas both Libya and the United States, as Members of the
United Nations, are obliged to accept and carry out the decisions of the
Security Council in accordance with Article 25 of the Charter; whereas
the Court, which is at the stage of proceedings on provisional measures,
considers that prima facie this obligation extends to the decision con-
tained in resolution 748 (1992); and whereas, in accordance with
Article 103 of the Charter, the obligations of the Parties in that respect
prevail over their obligations under any other international agreement,
including the Montreal Convention;

43. Whereas the Court, while thus not at this stage called upon to deter-
mine definitively the legal effect of Security Council resolution 748
(1992), considers that, whatever the situation previous to the adoption of
that resolution, the rights claimed by Libya under the Montreal Conven-

16
127 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

tion cannot now be regarded as appropriate for protection by the indica-
tion of provisional measures;

44, Whereas, furthermore, an indication of the measures requested by
Libya would be likely to impair the rights which appear prima facie to be
enjoyed by the United States by virtue of Security Council resolution 748
(1992);

45. Whereas, in order to pronounce on the present request for provi-
sional measures, the Court is not called upon to determine any of the other
questions which have been raised before it in the present proceedings,
including the question of its jurisdiction to’entertain the merits of the
case; and whereas the decision given in these proceedings in no way pre-
judges any such question, and leaves unaffected the rights of the Govern-
ment of Libya and the Government of the United States to submit
arguments in respect of any of these questions;

46. For these reasons,

THE COURT,

By eleven votes to five,

Finds that the circumstances of the case are not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional
measures.

IN FAVOUR: Vice-President Oda, Acting President; President Sir Robert Jen-
nings; Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen, Aguilar Mawdsley;

AGAINST : Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-
Kosheri.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this fourteenth day of April, one thousand
nine hundred and ninety-two, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Libyan Arab Jamahiriya and the Government of the United States
of America, respectively.

(Signed) Shigeru ODa,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Vice-President Opa, Acting President, and Judge NI append declara-
tions to the Order of the Court; Judges EVENSEN, TARASSOV, GUILLAUME

17
128 1971 MONTREAL CONVENTION (ORDER 14 IV 92)

and AGUILAR MAWDSLEY append a joint declaration to the Order of the
Court.

Judges LACHS and SHAHABUDDEEN append separate opinions to the
Order of the Court.

Judges BEDJAOUI, WEERAMANTRY, RANJEVA, AJIBOLA and Judge ad hoc
EL-KOSHERI append dissenting opinions to the Order of the Court.

(Initialled) S.O.
(Initialled) E.V.O.

18


35 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 Vv 61)

*
* *

Since the above conclusion is sufficient in itself to found the
Court’s jurisdiction, and the issue of jurisdiction is the only one
which the Court has to determine at this stage of the case, it
becomes unnecessary to proceed to a consideration of the second
basis of jurisdiction invoked by Cambodia, and Thailand’s objection
to that basis of jurisdiction.

For these reasons,

THE Court,

unanimously,

rejects the first preliminary objection of Thailand, and finds that
it has jurisdiction to adjudicate upon the dispute submitted to it
on 6 October 1959 by the Application of Cambodia.

Done in English and in French, the English text being authori-
tative, at the Peace Palace, The Hague, this twenty-sixth day of
May, one thousand nine hundred and sixty-one, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Government of the Kingdom of Cambodia
and to the Government of the Kingdom of Thailand, respectively.

(Signed) B. WINIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Vice-President ALFARO makes the following Declaration:

The fact that in the present case Thailand has based her first
preliminary objection to the jurisdiction of the Court on the
conclusions of the Judgment rendered in the case of the Aerzal
Incident of July 27th, 1955 (Israel v. Bulgaria) establishes a close
connection between that case and the present case, and it may be
open to doubt whether concurrence in the present Judgment
implies agreement with the conclusions of the Court in the above-
mentioned case. For this reason I consider it necessary to declare
that much to my regret I find myself unable to agree with those
conclusions, but even on the assumption that I agreed with them,

22
36 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

it is my opinion that the conclusions of the Court in the Israel v.
Bulgaria case concerning the scope and effect of paragraph 5 of
Article 36 of the Statute are not applicable to the case now decided,
for the abundant reasons stated in the present Judgment.

Judge WELLINGTON Koo makes the following Declaration:

Since some of the grounds given in the Judgment relate to the
decision of the Court in the case of the Aerial Incident-of July 27th,
1955 (Israel v. Bulgaria), Preliminary Objections, I desire to say
that while I concur in the conclusion of the Court in the present
case and generally in the reasoning which leads to it, I do not
mean thereby to imply that I now concur or acquiesce in that
decision but that, on the contrary, I continue to hold the views
and the conclusion stated in the Joint Dissenting Opinion appended
to that decision.

Indeed, I consider that on the basis of that Opinion Thailand’s
1940 Declaration accepting the compulsory jurisdiction of the
Permanent Court must be deemed to have been transformed, as
had also admittedly been intended by Thailand, when she became
a Member of the United Nations and therefore a party to the
Statute on 16 December 1946, by operation of Article 36, para-
graph 5, of the Statute, into an acceptance in relation to the
present Court; and this fact constitutes an additional and simpler
reason to meet Thailand’s principal argument in support of her first
objection.

This is clear, although it is equally true that since the circum-
stances of the two cases are essentially different, neither the fact,
based on the said Opinion, that the said 1940 Declaration had been
so transformed prior to its own terminal date, 6 May 1950, nor
the fact, based upon the said 1959 decision of the Court, that it
had lapsed on 1g April 1946 when the Permanent Court was
dissolved, bears any determining legal effect on the only crucial
question at issue in the present case, namely, the validity of
Thailand’s Declaration of 20 May 1950.

Judge Sir Gerald FITZMAURICE and Judge Tanaka make the
following Joint Declaration:

Although we are in complete agreement with the substantive
conclusion of the Court in this case and with the reasoning on
which it is based, we have an additional and, for us, a more im-
mediate reason for rejecting the first preliminary objection of
Thailand.

This preliminary objection is based on the conclusion concerning
the effect of paragraph 5 of Article 36 of the Statute which the

23