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SEPARATE OPINION OF JUDGE SHAHABUDDEEN

The Court’s Order is based solely on Security Council resolution 748
(1992). That also is the ground of my concurrence with it. But for that
resolution, I should have thought that Libya had presented an arguable
case for an indication of interim measures. The resolution now makes it
unnecessary to explore the legal elements of Libya’s request for such mea-
sures. In view of the turn of events occasioned by the resolution, I propose,
however, to say something on (i) the legal basis of the Court’s Order;
(ii) the feasibility of an impartial trial in the event of the two accused being
surrendered to the Respondent; and (iii) certain implications of the
Court’s Order.

(i) THE LEGAL BASIS OF THE COURT’S ORDER

Whatever might have been the previous position, resolution 748 (1992)
of the Security Council leaves the Court with no conclusion other than
that to which it has come. This is the result not of imposition of superior
authority — there is none — but of the fact that, in finding the applicable
law, the Court must take account of the resolution in so far as it affects the
enforceability of the rights for the protection of which Libya is seeking
interim measures. The validity of the resolution, though contested by
Libya, has, at this stage, to be presumed (see the general principle in Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolu-
tion 276 (1970), I.C.J. Reports 1971, p. 22, para. 20). Article 25 of the Char-
ter of the United Nations obliges Libya to comply with the decision set out
in the resolution (ibid., pp. 52-53). By virtue of Article 103 of the Charter,
that obligation prevails over any conflicting treaty obligation which Libya
may have (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), .C.J. Reports 1984, p. 440,
para. 107). Treaty obligations can be overridden by a decision of the Secu-
rity Council imposing sanctions (Paul Reuter, Introduction to the Law of
Treaties, 1989, p. 113, para. 228, and Sir Gerald Fitzmaurice, The Law and
Procedure of the International Court of Justice, 1986, Vol. 2, p. 431). Hence,
assuming that Libya has the rights which it claims, prima facie they could
not be enforced during the life of the resolution.

Several cases demonstrate, in one way or another, that the Court is not
precluded from acting by the mere circumstance that the matter in contest

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is also under consideration by another organ of the United Nations
(see, inter alia, United States Diplomatic and Consular Staff in Tehran,
C.J. Reports 1980, p. 22, para. 40; and Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), Provi-
sional Measures, I.C.J. Reports 1984, pp. 185-186, and, same case, Jurisdic-
tion and Admissibility, I.C.J. Reports 1984, pp. 433-436). In this case, it
happens that the decision which the Court is asked to give is one which
would directly conflict with a decision of the Security Council. That is not
an aspect which can be overlooked. Yet, it is not the juridical ground of
today’s Order. This results not from any collision between the competence
of the Security Council and that of the Court, but from a collision between
the obligations of Libya under the decision of the Security Council and
any obligations which it may have under the Montreal Convention. The
Charter says that the former prevail.

I have considered the question whether interim measures may be indi-
cated to the extent that the Respondent has allegedly been threatening the
Applicant with force, this not being authorized by resolution 748 (1992). It
appears to me, however, that whatever was the previous position, the
inference to be judicially drawn from the facts as they now stand is that the
Respondent, having promoted and supported the resolution, is prepared
to follow the course indicated in the resolution and accordingly not to
resort to force unless authorized by the Security Council. So on this point
the resolution of the Security Council stands in the way, both on the law
and on the facts.

(ii) THE FEASIBILITY OF AN IMPARTIAL TRIAL IN THE EVENT OF THE TWO
ACCUSED BEING SURRENDERED TO THE RESPONDENT

The United States demand for the surrender of the two accused Libyan
nationals is based largely on the view that an impartial trial could not be
had in Libya. However, the material before the Court raises an issue as to
possible prejudgment of the case by the United States. The United States
demand that Libya “must... pay appropriate compensation... promptly
and in full” presupposes a determination by the United States that the
accused are guilty, since the responsibility of the Libyan State is premised
on the guilt of the accused. My reasoning is set out in a separate opinion
appended by me to the Order made today by the Court in the companion
case brought by Libya against the United Kingdom.

(iii) IMPLICATIONS OF THE COURT’S ORDER

Inability under domestic law to act being no defence to non-compliance
with an international obligation, in order to make such compliance in a

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case of this kind a State may well find that, if it is not to breach its internal
legal order, it may have not only to legislate in the ordinary way, but to
undertake some appropriate measure of constitutional amendment, and
to do so speedily. In this case, Libya has expressed doubts whether the
stated objective of securing an impartial trial will be achieved if (having
taken whatever steps are necessary) it complies with the resolution of the
Security Council.

The question now raised by Libya’s challenge to the validity of resolu-
tion 748 (1992) is whether a decision of the Security Council may override
the legal rights of States, and, if so, whether there are any limitations on
the power of the Council to characterize a situation as one justifying the
making of a decision entailing such consequences. Are there any limits to
the Council’s powers of appreciation? In the equilibrium of forces under-
pinning the structure of the United Nations within the evolving interna-
tional order, is there any conceivable point beyond which a legal issue
may properly arise as to the competence of the Security Council to pro-
duce such overriding results? If there are any limits, what are those limits
and what body, if other than the Security Council, is competent to say
what those limits are?

If the answers to these delicate and complex questions are all in the
negative, the position is potentially curious. It would not, on that account,
be necessarily unsustainable in law; and how far the Court can enter the
field is another matter. The issues are however important, even though
they cannot be examined now.

(Signed) Mohamed SHAHABUDDEEN.

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