                              SEPARATE OPINION OF JUDGE OWADA

       1. I have voted in favour of the conclusions reached by the Court in the operative part
(dispositif) of the present Judgment, as I have no disagreement with these conclusions as such. It is
my view, however, that certain specific aspects of the reasoning (ratio decidendi) of the Judgment
that have led the Court to these conclusions have not been developed with sufficient clarity in the
reasoning part (motifs) of the Judgment. For this reason, I wish to attach this opinion of mine, with
a view to elaborating my own view on these points as I see them in the reasoning of the Judgment.
(It goes without saying that I do not intend to put my own words into the language of the Judgment,
but wish to explain how I see certain points covered by the Judgment.)

                I. THE ISSUE OF SOVEREIGNTY OVER THE DISPUTED TERRITORY

       2. In my view, the question of sovereignty over the “disputed territory” constitutes the
central issue of the dispute brought before the Court in 2010 by Costa Rica in relation to certain
activities conducted by Nicaraguan authorities. In the present Judgment, while the Court has
rightly concluded that the legal instruments relevant for determining sovereignty over the “disputed
territory” should be the 1858 Treaty, the Cleveland Award of 1888 and the Alexander Award
of 1897, the language of the Judgment does not seem to have been sufficiently articulate on the
logical sequence that exists between these relevant legal instruments. Thus on the issue of
territorial sovereignty, which should be the prerequisite for determining the concrete allegations by
the Applicant of violations of sovereignty by the Respondent, the Judgment summarily concludes
that “Articles II and VI [of the 1858 Treaty], taken together, provide that the right bank of a
channel of the river forms the boundary on the assumption that this channel is a navigable ‘outlet of
commerce’” (Judgment, paragraph 76).

        3. For the purpose of our analysis of these documents, however, the Court in my view should
start from the premise that what is determinative in this case is first and foremost the interpretation
of the 1858 Treaty and pursue the logical sequence of the relevant legal instruments, i.e., first the
1858 Treaty, then the Cleveland Award, which was meant to give an authoritative interpretation of
the 1858 Treaty, and finally the Alexander Awards, which were given under the mandate of
General Alexander to demarcate the boundary and to implement the Cleveland Award, in light of
their assigned roles and purposes in their contexts. In my view, thus, the central issue that
determines the issue of sovereignty over the disputed territory is not the identification of the
geographical location of “the first channel met”, used in the first Alexander Award, among the
many watercourses that could have existed (or now exist) in the wetland of the disputed territory,
as some of the counsel have tried to persuade the Court. In my view, however, the Court’s task is
rather to apply the basic interpretative reasoning followed by General Alexander within the scope
of his mandate under the Pacheco-Matus Convention of 1896, to “proceed with [the demarcation]
of the border line” on the basis of the 1858 Treaty and the Award rendered in 1888 by
President Cleveland, who had been entrusted with the task of deciding upon, inter alia, “all . . .
points of doubtful interpretation which either of the parties may find in the [1858 Treaty]”, and thus
of giving an authoritative interpretation of the 1858 Treaty. Under these circumstances, the task for
the Court has not and cannot have been literally to follow the line described in the first Alexander
Award in 1897, particularly as General Alexander already was faced with the difficulty of
investigating what the Cleveland Award had established as the authoritative interpretation of the
1858 Treaty, because of the changed geography of the area over the intervening 30 years. The
resolution by the Court of the question of territorial sovereignty over the disputed territory in this
situation is to be based on the same legal sources (i.e., the national boundary as determined by the
1858 Treaty) and the same legal reasoning that General Alexander applied in implementing the
Cleveland Award of 1888, which, even after the passage of 30 years, provided the authoritative and
binding interpretation and determination of the boundary prescribed by the 1858 Treaty.

                                                -2-

       4. It is this reasoning in my view that General Alexander applied in his first Award of
30 September 1897, when considering how the natural terminus of the San Juan River (which used
to be the “right-hand headland of the harbour mouth”) as determined by the 1858 Treaty could
reach the San Juan River proper following what used to be the San Juan River’s right bank.
Already at the time of the first Alexander Award, the only possible way to identify the navigable
waterway (as contrasted to any watercourse) that connected this “natural terminus” of the San Juan
River to the Lower San Juan River was to follow the edge of the Harbor Head Lagoon until it
reached the San Juan River proper. If we transfer this reasoning to the present situation, the
contour of the territory following from General Alexander’s underlying reasoning, rather than the
actual boundary line that he demarcated on the ground at that time, would unequivocally lead one
to the conclusion that the disputed territory is under Costa Rican sovereignty.

       5. Incidentally, in understanding the prescriptive description of the first Alexander Award, it
is useful to note that the term used by General Alexander was “the first channel met” (emphasis
added), and not “the first caño met”. (The term “channel”, according to the Oxford English
Dictionary, denotes as a geographic term “[a] (comparatively) narrow piece of water, wider than a
mere ‘strait’, connecting two larger pieces, usually seas”. This would appear to be the proper
definition of the term for establishing what General Alexander had in mind, assuming that the first
Alexander Award was originally drafted in English.) Be that as it may, there seems to be no doubt
that General Alexander came to the conclusion that this “channel” was the one to follow in
determining the boundary line as defined by the 1858 Treaty and interpreted by the Cleveland
Award, not because General Alexander found that it was there as the first watercourse that he came
across on his journey following the water along the Harbor Head Lagoon, but because he acted on
his understanding that this “first channel” represented part of the main stream of water flowing
from the San Juan River proper leading to the starting point of the boundary line which was at the
mouth of the River. In other words, General Alexander was trying faithfully to follow the
prescription of the 1858 Treaty contained in its Article II, namely that: “The dividing line between
the two Republics, starting from the Northern Sea, shall begin at the end of Punta de Castilla, at the
mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to
point three English miles distant from Castillo Viejo . . .” (Emphasis added.)

       6. The third Alexander Award is also indicative of the reasoning of General Alexander,
inasmuch as it explicitly affirms that the position of the boundary line will be altered only by
“changes in the banks or channels of the river . . . as may be determined by the rules of
international law applicable on a case-by-case basis” (third Alexander Award, RIAA, Vol. XXVIII,
p. 230; emphasis added), and not just by any watercourse that can serve the purpose of letting
water pass from the San Juan River proper to the Harbor Head Lagoon.

       7. In other words, if we translate the language and transfer the reasoning of the Alexander
Awards to the present-day geographical situation of the area, there could be no question that the
reasoning underlying the first Alexander Award would lead to the unequivocal outcome that the
Court has reached in the present Judgment on the question of sovereignty over the disputed
territory. The task of the Court is simply to apply the reasoning of General Alexander in his first
Award in a geographically generic, though not geodetically specific, manner to the boundary as
prescribed in the 1858 Treaty, in order to reach the conclusion on the issue of sovereignty over the
disputed territory. For this purpose, the Court has only to proceed from the “natural terminus” of
the Lower San Juan River determined in the 1858 Treaty as interpreted by the Cleveland Award
and as subsequently implemented by the Alexander Awards. This “natural terminus” is, as was
determined by General Alexander in his first Award, “the northwestern extremity of what seems to
be the solid land, on the east side of the Harbor Head Lagoon” (first Alexander Award, RIAA,
Vol. XXVIII, p. 220). Having thus identified the terminus of the boundary, the determination of
sovereignty over the disputed territory flows from the boundary line that runs along the right bank

                                                  -3-

of the river. Of course, such a riverine connection between the Harbor Head Lagoon and the
San Juan River itself is no longer in existence at the present time. In this situation, the only logical
way to draw that boundary line connecting what was “the right-hand headland of the harbour
mouth” to the San Juan River is to follow the edge of the Harbor Head Lagoon until it reaches the
present-day stream of the San Juan River proper. Once this line reaches the right bank of the river,
the boundary line must turn upstream as the 1858 Treaty prescribes.

       8. It should be added that the Parties in the present case have also provided the Court with a
number of arguments, including references to effectivités, and have produced a range of supporting
evidentiary materials, such as maps, witness affidavits, and expert statements relating to fluvial
morphology and other aspects of the geographical context of the disputed territory, all relating to
the question of whether or not any navigable channels might have traversed or currently traverse
the disputed territory. The Judgment has assessed the evidentiary merit of all these materials for
determining the question of territorial sovereignty, but has come to the conclusion that their
evidentiary value was not determinative of the question of sovereignty. My own conclusion is that
the totality of such evidence amounts in fact to very little that is material or conclusive for
determining the question of territorial sovereignty over the disputed territory, to the extent that the
central issue that is determinative of the question is the content of the 1858 Treaty, as interpreted
by the Cleveland Award and subsequently implemented by the Alexander Awards.

               II. LEGAL CONSEQUENCES OF THE COURT’S FINDING RELATING TO
                          SOVEREIGNTY OVER THE DISPUTED TERRITORY

       9. In my view, what is involved in the present dispute is not, in its fundamental nature, the
situation of a classical territorial dispute that is normally brought before the International Court of
Justice for judicial settlement. A territorial dispute is typically presented to the Court after attempts
by the Parties at an exchange of views in order to identify the existence of a difference of positions
on an issue and following a process of negotiations for its peaceful settlement. In the present case,
however, the territorial dispute has been caused primarily by unilateral action taken in the form of a
physical incursion by one State into the territory of another State that had been primarily held for
many years by the latter State. This appreciation of the nature of the dispute in the present case is
apparent from the language of the Judgment itself (Judgment, paragraphs 67-69 and
paragraph 229 (2)), including in addition its finding that Nicaragua breached the Court’s Order of
8 March 2011, inter alia, by establishing a military presence in the disputed territory (Judgment,
paragraph 229 (3)). Whatever validity the claim by the Respondent over the disputed territory may
have had, such a unilateral act of incursion by that State would amount to something more than an
incidental violation of the territorial sovereignty of that latter State.

       10. In my view, given this undisputable circumstance, it would have been appropriate for the
Court to have treated the actions by Nicaragua in question as a straightforward case of the
commission of an internationally wrongful act, which could arguably constitute an unlawful use of
force under Article 2 (4) of the United Nations Charter. An act of this nature would generally
entail an obligation to undertake remedial measures, including reparation, going beyond a mere
obligation to achieve the restitutio in integrum of the status quo ante.

       11. While I have concurred with the Court’s decision to consider that an incursion has taken
place, but to refrain from going further into the question of what other legal consequences of this
incursion should follow in light of the Court’s finding that “by excavating three caños and
establishing a military presence on Costa Rican territory, Nicaragua has violated the territorial
sovereignty of Costa Rica” (Judgment, paragraph 229 (2), see also paragraph 229 (3)), it is my
view that it would have been more appropriate for the Court to have gone further by declaring that

                                                -4-

these internationally wrongful acts by Nicaraguan authorities constituted an unlawful use of force
under Article 2 (4) of the United Nations Charter.

       12. The present Judgment has not pursued that course, limiting itself to the factual finding of
an incursion as referred to above, without going into any further discussion on the possible legal
consequences of such an incursion. A reference made to the Judgment in the Cameroon v. Nigeria
case of 2002 in this context to justify this approach would seem to be quite inappropriate. In that
earlier Judgment, the Court had concluded that

      “by the very fact of the present Judgment and of the evacuation of the Cameroonian
      territory occupied by Nigeria, the injury suffered by Cameroon by reason of the
      occupation of its territory will in all events have been sufficiently addressed. The
      Court will not therefore seek to ascertain whether and to what extent Nigeria’s
      responsibility to Cameroon has been engaged as a result of that occupation.”
      (Case concerning the Land and Maritime Boundary between Cameroon and Nigeria
      (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J.
      Reports 2002, p. 452, para. 319.)

This reference to the case of Cameroon v. Nigeria in my view could be quite misleading as the
Cameroon v. Nigeria case is qualitatively different from the present case and should clearly be
distinguished from the present situation, inasmuch as the former case, different from the present
case, had not been caused by an action of one Party to alter the existing status quo through
unilateral means. The Judgment should in my view have taken a more correct approach in its
characterization of such a blatant case of incursion and its legal consequences.

                    III. THE NATURE OF THE REQUIREMENT TO CONDUCT AN
                             ENVIRONMENTAL IMPACT ASSESSMENT

      13. In their written and oral pleadings, both Parties invoked the existence of a legal
obligation under general international law not to cause significant transboundary harm. The
existence of such an obligation has been confirmed in some of the Court’s past decisions,
including, in particular, its Judgment in the case concerning Pulp Mills on the River Uruguay (see
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I),
pp. 55-56, para. 101).

       14. In the process of carrying out the obligation to act in due diligence under international
environmental law, the requirement of conducting an environmental impact assessment becomes a
key element for determining whether certain activities may cause significant transboundary harm.
This requirement comes to play a significant role in both of the joined cases in the present
proceedings. The issue of environmental impact assessment has been raised by both Parties against
each other respectively in each of the joint cases. In this context, they seemed to quote approvingly
the dictum from the Court’s Judgment in the Pulp Mills case.

      15. In its Judgment in the Pulp Mills case, the Court referred to the environmental impact
assessment as “a practice, which in recent years has gained so much acceptance among States that
it may now be considered a requirement under general international law” (ibid., p. 83, para. 204).

      16. This dictum of the Court should be placed in contrast with that of the International
Tribunal for the Law of the Sea, which in its 2011 Advisory Opinion on the Responsibilities and
obligations of States with respect to activities in the Area appears to have gone a step further by
declaring that an environmental impact assessment as such is a “general obligation under

                                                -5-

customary international law”. More specifically, it states as follows: “It should be stressed that the
obligation to conduct an environmental impact assessment is a direct obligation under the
[UNCLOS] and a general obligation under customary international law.” (Responsibilities and
obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February 2011,
ITLOS Reports 2011, para. 145; emphasis added.)

       17. By comparison, the reasoning of this Court in its Judgment in the Pulp Mills case appears
to take a more nuanced approach to this requirement, when it circumscribes the scope and content
of such an environmental impact assessment in the following manner:

      “general international law [does not] specify the scope and content of an
      environmental impact assessment . . . Consequently, it is the view of the Court that it
      is for each State to determine in its domestic legislation or in the authorization process
      for the project, the specific content of the environmental impact assessment required
      in each case, having regard to the nature and magnitude of the proposed development
      and its likely adverse impact on the environment as well as to the need to exercise due
      diligence in conducting such an assessment.” (Pulp Mills on the River Uruguay
      (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 83, para. 205; emphasis
      added.)

      The Court also stressed the continuous nature of the process of environmental impact
assessment on a case-by-case basis, as follows:

      “an environmental impact assessment must be conducted prior to the implementation
      of a project. Moreover, once operations have started and, where necessary, throughout
      the life of the project, continuous monitoring of its effects on the environment shall be
      undertaken.” (Ibid., pp. 83-84, para. 205.)

       18. These statements of the Court in its Judgment in the Pulp Mills case would seem to
suggest that in the dictum quoted in paragraph 15 above, the Court emphasized the crucial
importance of this element in the context of the process of carrying out the obligation of due
diligence, which is a holistic process. To summarize, conducting an environmental impact
assessment is one important constituent element of the process that emanates from the international
obligation of States to act in due diligence to avoid or mitigate significant transboundary harm,
rather than a separate and independent obligation standing on its own under general international
law. This obligation to act with due diligence in such a way that the initiation of potentially
environmentally hazardous activities may be avoided constitutes an established obligation of
international environmental law. In this holistic process, an environmental impact assessment
plays an important and even crucial role in ensuring that the State in question is acting with due
diligence under general international environmental law. It should also be noted that in the Pulp
Mills case there was no need for the Court to establish this requirement of environmental impact
assessment as a general legal obligation of international environmental law or to define its limits
under customary international law, to the extent that the case hinged upon the construction of the
1975 Statute, which was a lex specialis applicable to that case.

      19. Against this background the Court in the present Judgment can be said in my view to
have maintained this balanced approach when it stated as follows:

                                                -6-

      “to fulfil its obligation to exercise due diligence in preventing significant
      transboundary environmental harm, a State must, before embarking on an activity
      having the potential adversely to affect the environment of another State, ascertain if
      there is a risk of significant transboundary harm, which would trigger the requirement
      to carry out an environmental impact assessment.

            Determination of the content of the environmental impact assessment should be
      made in light of the specific circumstances of each case.

             ................................................................

             If the environmental impact assessment confirms that there is a risk of
      significant transboundary harm, the State planning to undertake the activity is
      required, in conformity with its due diligence obligation, to notify and consult in good
      faith with the potentially affected State, where that is necessary to determine the
      appropriate measures to prevent or mitigate that risk.” (Judgment, paragraph 104.)

      20. Based on this reasoning, the Court has held in the operative part of its Judgment that:
“Costa Rica has violated its obligation under general international law by failing to carry out an
environmental impact assessment concerning the construction of Route 1856” (Judgment,
paragraph 229 (6)).

       21. In sum, the environmental impact assessment, which is essentially of a technical nature,
is a means to achieve the ultimate objective of preventing transboundary harm  an obligation
relating to the due diligence required. In addition, an environmental impact assessment serves the
purpose of enabling the public or civil society to participate in the ultimate decision-making
process on activities with potentially significant environmental effects. Significant as the
environmental impact assessment may be, as reflecting prevailing practice in recent years, the fact
remains that the function of the environmental impact assessment is essentially one of a number of
means to be employed when the circumstances of the case so require, in order to attain the ultimate
legal objective that is binding upon States acting in the environmental field  an obligation to act
with due diligence in order to prevent significant transboundary harm in the light of the assessed
risks involved.

       22. The present Judgment is in my view based on this position, as demonstrated by the
passages of the Judgment quoted above. The relevant activities by States are to be reviewed in the
specific circumstances of the case in light of this obligation of due diligence, through verifying
whether the State has acted with due diligence, as evidenced by such elements as taking necessary
measures to prevent significant transboundary harm, as it is the case here with Costa Rica in
relation to its construction of the Road, or with Nicaragua in relation to the undertaking of its
dredging activities. Conducting an environmental impact assessment is one important element
(though not necessarily constituting an indispensable obligation as such) in the process of fulfilling
the obligation of acting with due diligence to prevent significant transboundary harm in each case.

                                                            (Signed)     Hisashi OWADA.

                                           ___________


78

DISSENTING OPINION OF JUDGE AJIBOLA

After due and careful reflection, I have decided to write a dissenting
opinion on the issue of Libya’s request for the Court to indicate provi-
sional measures under Article 41 of the Statute. I think it is necessary for
me to write this dissenting opinion on some of the issues that are of pri-
mordial significance in the request before us, reflecting some of the rea-
sons upon which my decision is based. The subject-matter of this case is
not only unique in nature but is also of fundamental importance in the
field of international law.

Needless for me to state the facts of the case herein, other than to say
that the catastrophic aerial incident at Lockerbie of 21 December 1988
which resulted in the death of 270 people is the subject-matter of this
action brought by the Libyan Arab Jamahiriya (otherwise Libya) against
the United Kingdom based on the interpretation and application of the
1971 Montreal Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation. An aspect of its uniqueness is the fact that the
subject-matter of the case is contemporaneously before the Security
Council.

One may go further to state that that alone does not make it unique
ipso facto because in recent times the issues presented by at least three
cases before the Court have at the same time been deliberated upon by the
Security Council (cf. Aegean Sea Continental Shelf (Greece v. Turkey),
CJ. Reports 1976, p. 3; United States Diplomatic and Consular Staff in
Tehran (United States of Americav. Iran), I.C.J. Reports 1980, p.3; Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), I.C.J. Reports 1984, p. 169). In these three cases
the Court and Security Council exercised mutual or in fact “symbiotic”
powers and functions. In effect these two main organs of the United
Nations as established under Article 7 of the Charter even though exer-
cising their respective powers and functions independently and pari
passu did so in parallelism. In all three cases, the Court, while supportive
of the Security Council, unambiguously confirmed its authority to adju-
dicate issues within its jurisdiction even where the Security Council is
seised of the same matter. For example, while indicating provisional
measures in the United States Diplomatic and Consular Staff in Tehran
case, the Court “endorsed” resolution 457 of 1979, which called for the
immediate release of the hostages and further observed:

79
79 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

“Whereas Article 12 of the Charter expressly forbids the General
Assembly to make any recommendation with regard to a dispute or
situation while the Security Council is exercising its functions in
respect of that dispute or situation, no such restriction is placed on
the functioning of the Court by any provision of either the Charter or
the Statute of the Court. The reasons are clear. It is for the Court, the
principal judicial organ of the United Nations, to resolve any legal
questions that may be in issue between parties to a dispute; and the
resolution of such legal questions by the Court may be an important,
and sometimes decisive, factor in promoting the peaceful settlement
of the dispute.” (J.C.J. Reports 1980, p. 22, para. 40.)

Similarly in the Nicaragua case, the Court made the following signifi-
cant pronouncement on its jurisdiction:

“The United States is thus arguing that the matter was essentially
one for the Security Council since it concerned a complaint by Nicar-
agua involving the use of force. However, having regard to the United
States Diplomatic and Consular Staff in Tehran case, the Court is of
the view that the fact that a matter is before the Security Council
should not prevent it being dealt with by the Court and that both pro-
ceedings could be pursued pari passu.” (I.C.J. Reports 1984, p. 433,
para. 93.)

Admittedly, the Security Council is a political organ, while Article 92 of
the United Nations Charter describes the Court as “the principal judicial
organ of the United Nations”. However, in this case, one is inclined to
admit an overlap of function, even though a cursory evaluation may sug-
gest a contrary view. For example, the Montreal Convention on which
Libya’s Application is based squarely presents the Court with issues of
“rights” and “disputes” under international law, involving, in particular,
extradition, while the Security Council is dealing with the issue of the
“surrender” of two suspects and the problem of international terrorism as
it affects international peace and the security of nations — i.e., matters of a
political nature.

There is also the issue of different connotations of the word “co-opera-
tion”. While the Security Council wants Libya to co-operate with the
United Kingdom by surrendering to her the two suspects in Libya, the
Application of Libya seeks the co-operation of the United Kingdom in
prosecuting the two suspects in Libya under the Libyan Criminal Code
and in accordance with Article 11 (1) of the 1971 Montreal Convention.

Assuming for the moment that there were no resolutions or any action
whatsoever on this matter in the Security Council, the question is, what
would have been the attitude and approach of the Court to the interim
measures sought by Libya? In my view, to indicate interim measures in
this case, the Court must answer the following preliminary questions in
the affirmative:

80
80 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

1. Does the Court have prima facie jurisdiction to entertain this Applica-
tion?

2. Are there legal disputes between the Applicant and the Respondents in
accordance with the provisions of the 1971 Montreal Convention? If
so, what are these disputes ?

3. Are the “rights” being claimed by the Applicant legal rights sustainable
under international law? If so, what are these legal rights ?

4. Is this matter urgent to warrant immediate attention of the Court and
upon which provisional measures should be pronounced?

5. Has the Court jurisdiction to entertain this matter presently, or was it
prematurely brought before the Court having regard to the provisions
of Article 14 (1) of the 1971 Montreal Convention upon which the
Application is based?

6. Would failure to indicate interim measures result in irreparable harm
to the Applicant?

1. On the first question, I have no doubt that the Court has a prima
facie jurisdiction to entertain Libya’s request for interim measures. It is
well-settled jurisprudence of the Court to concede the establishment of
prima facie jurisdiction once the Applicant can show that she has an argu-
able case. This view was confirmed in the Nuclear Tests (Australia v.
France) case when the Court observed:

“Whereas on a request for provisional measures the Court need
not, before indicating them, finally satisfy itself that it has jurisdic-
tion on the merits of the case, and yet ought not to indicate such mea-
sures unless the provisions invoked by the Applicant appear, prima
facie, to afford a basis on which the jurisdiction of the Court might be
founded” (1.C.J. Reports 1973, p. 101, para. 13).

The Parties do not deny that the 1971 Montreal Convention is a Con-
vention in force which they have entered into and ratified. The issue is one
of pacta sunt servanda as provided for in Article 26 of the Vienna Conven-
tion on the Law of Treaties which came into force in 1980.

2. The second question deals with the issue of legal disputes. From the
totality of the oral arguments presented by the Parties, am convinced that
there is a legal dispute concerning the interpretation and application of
the 1971 Montreal Convention.

To my mind the legal disputes may be summarized as three:

(a) The United Kingdom is demanding the surrender of the two suspects
involved in the Lockerbie incident and Libya refuses to comply with
this demand. The Applicant argues that under Articles 5 (2), 5 (3), 7
and 8 of the 1971 Montreal Convention she has the option either to
extradite or prosecute: aut dedere aut judicare (or aut prosequi) — and

81
81 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

in the circumstances she has decided to prosecute the suspects on her
own soil because her internal criminal law does not permit the “extra-
dition” of Libyan citizens.

(b) The second legal dispute is whether Article 11 (1) of the 1971 Montreal
Convention requires the United Kingdom to co-operate with Libya’s
domestic prosecution of the two suspects. Article 11 (1) of the 1971
Montreal Convention provides:

“Contracting States shall afford one another the greatest measure
of assistance in connection with criminal proceedings brought in
respect of the offences. The law of the State requested shall apply in
all cases.” (Emphasis added.)

(c) The third dispute may be found in paragraph 5 of Libya’s request for
the indication of provisional measures, which urges the Court to order
the Respondent to “refrain from taking any step that might aggravate
or extend the dispute as would surely happen if sanctions are imposed
against Libya or force employed”. During the oral proceedings, coun-
sel for the Applicant referred to identical statements of Government
authorities of both the Respondent and the United States of America
to the effect that “we have neither ruled any option in or any option
out” and which to some extent have been disputed or explained away
by the counsel forthe Respondent.

3. Next is the question of whether the Applicant has the rights under
international law claimed in the Application. To answer this question, the
Applicant referred to many of the provisions of the 1971 Montreal Con-
vention, especially Articles 5 (2), 5 (3), 7, 8 and 11 (1). Many of these
Articles deal with the issue of aut dedere aut judicare. In effect, the Con-
vention recognizes the fact that the internal law of some States prohibits
the extradition of its citizens. The hydra-headed problem or conflict of
jurisdiction to prosecute which must clearly be borne in mind in this case,
is that the two Parties have the right/obligation to prosecute offences
listed in the Convention in their respective States. Article 5 (1) enumer-
ates such options thus:

“Each Contracting State shall take such measures as may be neces-
sary to establish its jurisdiction over the offences in the following
cases:

(a) when the offence is committed in the territory of that State;
(b) when the offence is committed against or on board an aircraft
registered in that State;

82
82 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

(c) when the aircraft on board which the offence is committed lands
in its territory with the alleged offender still on board;

(d) when the offence is committed against or on board an aircraft
leased without crew to a lessee who has his principal place of
business or, if the lessee has no such place of business, his perma-
nent residence, in that State.”

General international law recognizes the same options. Hence, the
United Kingdom, as the locus of the incident, could establish jurisdiction
over the offences under both general international law and also under the
1971 Montreal Convention. However, Libya has the suspects within her
jurisdiction and is equally entitled to prosecute the suspects. I am of the
view that based on the 1971 Montreal Convention, Libya has a legal right
to protect. Itis a right recognized in international law and even considered
by some jurists as jus cogens. I share the view of some of my colleagues,
especially Judge Weeramantry, that Libya is entitled to prosecute the two
accused Libyans if she wants. Even if other rights under Articles 5 (2),
5 (3), 7 and 8 are debatable and arguable as to whether they are rights or
obligations, the legal right under Article 11 (1) is an indisputable right
under the 1971 Montreal Convention.

4, Next is the issue of urgency. Equally I have no doubt about the
urgency of this matter. If I had any doubt in my mind before, the devel-
opments in the recent days are all clear indications that there is a need for
the Court to take immediate action and to give Libya’s request the
priority that it deserves as indicated in Article 74 (1) of the Rules of Court.

5. The next question, the timeliness of the Application, is admittedly
not as easy as the others that I have dealt with above. Opinions are
strongly divided on the issue of the interpretation of Article 14 (1) of the
1971 Montreal Convention. The Court listened to cogent arguments for
and against the applicability or non-applicability of this Article, for the
time being, from the Applicant and the Respondent. Before I go further,
let me quote this provision:

“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 from 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.”

83
83 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

The Respondent forcefully argues that the Applicant failed to exhaust
all the stages of negotiation and arbitration before making her Applica-
tion to the Court. It was pointed out, and is clearly indicated in the Article,
that the requirements of negotiation and arbitration are mandatory condi-
tion precedents that must be complied with before recourse to the Court is
available. The Respondent further argued that the Applicant’s letter of
18 January 1992 on the issue of negotiation and arbitration was merely six
weeks old when the Application was made to the Court on 3 March 1992,
and therefore the Application is premature.

The Applicant answers that waiting for the six months prescribed in
Article 14 (1) to run its course would be pointless because the Respondent
unequivocally refused Libya’s 18 January 1992 request for negotiation
and arbitration. Reference was made to the comment of the United King-
dom on this issue, when Sir David Hannay, the then President of the Secu-
rity Council, observed:

“The letter dated 18 January concerning a request for arbitration
under Article 14 of the Montreal Convention is not relevant to the
issue before the Council. The Council is not, in the words of Ar-
ticle 14 of the Montreal Convention, dealing with a dispute between
two or more Contracting Parties concerning the interpretation or
application of the Montreal Convention. What we are concerned
with here is the proper reaction of the international community to the
situation arising from Libya’s failure, thus far, to respond effectively
to the most serious accusations of State involvement in acts of
terrorism.” (S/PV.3033, p. 104.)

From this pronouncement by the Respondent it seems to me, and quite
reasonably too, that even if the Applicant had waited until after six
months from 18 January, or even longer, her request would have been met
by the same refusal. This, to my mind, is a case of anticipatory breach of
the provisions of Article 14 (1) on the part of the Respondent and Libya
was not obliged to delay her Application until the expiry of six months
after 18 January 1992. This view is reflected in some of the past decisions
of the Court. A good example is the South West Africa cases (Ethiopia v.
South Africa; Liberia v. South Africa), where the Court observed:

“It is immaterial and unnecessary to enquire what the different
and opposing views were which brought about the deadlock in the
past negotiations in the United Nations, since the present phase calis
for determination of only the question of jurisdiction. The fact that a
deadlock was reached in the collective negotiations in the past and
the further fact that both the written pleadings and oral arguments of
the Parties in the present proceedings have clearly confirmed the

84
84 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

continuance of this deadlock, compel a conclusion that no reason-
able probability exists that further negotiations would lead to a
settlement.” (I.C.J. Reports 1962, p. 345.)

The Court refused to adopt a purely technical attitude to this matter in
the same cases when it noted that:

“it is not so much the form of negotiation that matters as the attitude
and views of the Parties on the substantive issues of the question
involved. So long as both sides remain adamant ...” (Ibid., p. 346.)

There is also the issue of whether the word “within” as used in
Article 14 (1) means after or inside of six months. The word “dans” in the
corresponding French text suggests that demand and refusal within six
months triggers the right of recourse to the Court. Moreover, “within” in
the Concise Oxford Dictionary means “not beyond”, or “inside” or “before
expiration of” or “in atime no longer than” or “during”. Ifthe Convention
meant to stipulate after it would have explicitly said so.

Given all the points I have dilated upon above, it is my humble opinion
that the Application was not prematurely presented to the Court, and the
Court has jurisdiction to entertain the same.

6. There remains the issue of irreparable harm. Here again arguments
have been advanced on both sides. Respondent’s brilliant argument elab-
orated on this matter in extenso. The United Kingdom’s point was that a
party should not take action pendente lite that would frustrate the Court’s
later judgment on the merits. Provisional measures are therefore unneces-
sary, the argument runs, because the Parties are already under an obliga-
tion to avoid irreparable prejudice to the potential judgment of the Court,
irreparable harms to rights claimed, and irreparable harms to persons and
property. To buttress this point torrents of authority were cited from the
past Judgments of the Court.

Again, one must pause to note that the test here is not one of “irrepar-
able prejudice” or “irreparable harm” but the possibility or the risk of such
irreparable harm or prejudice. This point has been made in several cases
before the Court. The Court in indicating provisional measures in the
Nuclear Tests case observed thus:

“29, Whereas for the purpose of the present proceedings it suf-
fices to observe that the information submitted to the Court, includ-
ing Reports of the United Nations Scientific Committee on the
Effects of Atomic Radiation between 1958 and 1972, does not

85
85 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

exclude the possibility that damage to Australia might be shown to be
caused by the deposit on Australian territory of radio-active fall-out
resulting from such tests and to be irreparable;

30. Whereas in the light of the foregoing considerations the Court
is satisfied that it should indicate interim measures of protection in
order to preserve the right claimed by Australia in the present litiga-
tion in respect of the deposit of radio-active fall-out on her territory.”
(C.J. Reports 1973, p. 105; emphasis added.)

Similar pronouncements can be found in the Tehran Hostages case and
Passage through the Great Belt case.

Two questions are pertinent to the issue under discussion. First, is there
a likelihood, or to use the appropriate words “possibility” or “risk” of
harm to the Applicant if she is not allowed to prosecute the two suspects
on her own soil ? Second, is there a likelihood that the Respondent will use
force or coercion if provisional measures are not indicated ? From the evi-
dence adduced at the hearings, I am very much inclined to answer these
questions in the affirmative, especially when one considers the fact that
what is in issue is the possibility or risk of such irreparable harm or preju-
dice.

Now, having resolved all of these questions in favour of the Applicant,
in relation to the relevant provisions for indication of provisional mea-
sures (i.e., Art. 41 of the Statute of the Court) I should proceed to state
that the Court should indicate provisional measures in favour of the
Applicant only when it “considers that the circumstances” of this case
“so require”. Similar reference can also be made to relevant parts of
Articles 73, 74 and 75 of the Rules of Court.

In my view the request for interim measures must be seen against the
background of concurrent actions of the Security Council, and in particu-
lar its adoption of resolutions 731 (1992) and 748 (1992). There is therefore
need to examine the effect, if any, of resolution 731 (1992) on this case and
most importantly to indicate the effect of the recent resolution 748 (1992),
passed during the currency of our deliberation on this case.

Before embarking on the bumpy journey of examining the effects of
these resolutions in international law, let me pause to examine one aspect
of this case that troubles my own sense of justice. Perhaps it is better to
deal with this matter fully when the case will be considered on its merits.
However, it concerns the two resolutions of the Security Council and their
effect on the provisional measures now under consideration.

A point which is uncontested and accepted by both Parties is the desira-
bility, and in fact the need, that the two suspects allegedly involved in this

86
86 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

matter be thoroughly investigated and tried. The Applicant believed so,
and said so. The Respondent is also eager to try them. The disagreement is
only on where they should be tried. To my mind the investigation cannot
be completed without the co-operation of both Parties. On completion of
investigation, and if a prima facie case is established against the suspects,
they will be tried as accused persons before a criminal court or tribunal.
Judgment comes after trial and then sentence, if found guilty.

Ihave stated all these elementary and trite principles of criminal justice
to stress the point, that all along, the issue of investigation by the Respon-
dent was being apparently treated in some of the arguments like final
judgment. It is obvious that the allegation of terrorism, a very serious and
heinous offence, against the two Libyans cannot be sustained unless and
until they are tried and found guilty. A fortiorithe allegation that the State
of Libya is involved in terrorism cannot hold legally until such a time as
judgment is given against the two Libyans and it is proved that they were
acting for and on behalf of the State of Libya.

A statement dated 27 November 1991, S/23307, was issued by
the United Kingdom, which demanded thus:

“Following the issue of warrants against two Libyan officials for
their involvement in the Lockerbie atrocity, the Government
demanded of Libya the surrender of the two accused for trial. We
have so far received no satisfactory response from the Libyan author-
ities.

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

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

— 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 are conveying our demands to Libya through the Italians, as
our protecting power. We expect Libya to comply promptly and in
full.” (Emphasis added.)

It will be noted that payment of compensation was demanded in the
above statement, i.e., “pay appropriate compensation”. What worries me
is how the State of Libya could be urged to pay compensation when the

87
87 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

“suspects” or even to put it higher than that the “accused persons” have
not been found guilty by any competent court or tribunal and have not
been proved to have acted in complicity with Libya. The presumption of
innocence until guilt is established is still an integral part of the due
administration of criminal justice the world over.

The significance of this point is that the requests of the United King-
dom, referred to above, formed the basis of the requests contained in reso-
lution 731 (1992), especially the preambular paragraph which states:

“ Deeply concerned over the results of investigations, which impli-
cate officials of the Libyan Government and which are contained in
Security Council documents that include the requests addressed to
the Libyan authorities by France, the United Kingdom of Great
Britain and Northern Ireland and the United States of America in
connection with the legal procedures related to the attacks carried
out against Pan American flight 103 and Union de transports
aériens flight 772”

as well as paragraph 3 of the resolution which

“Urges the Libyan Government immediately to provide a full and
effective response to those requests so as to contribute to the elimina-
tion of international terrorism”.

What then is the effect of resolution 731 (1992) on the Court’s authority
to indicate interim measures? It has been argued that resolution 731
(1992) is merely recommendatory and as such it is not a decision of the
Security Council. I think I share the view on a careful study of the content
of the resolution that the request to surrender the two Libyans cannot be
said to be mandatory. Again, the action of the Security Council with
regard to this resolution could be placed under Article 36 (1) of the
Charter which states that:

“The Security Council may at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment.” (Emphasis
added.)

Undoubtedly all these provisions are within Chapter VI of the
Charter which deals with pacific settlement of disputes. Since the
issue involves negotiation, enquiry, mediation, conciliation, arbitra-
tion or judicial settlement as enumerated in Article 33, it was possible
for the Security Council to avail itself of the ultimate invocation and
application of Article 36 (3) by referring this matter to the Court.
However, the Security Council did not exercise that option. After care-
ful consideration of the content and possible effect of resolution 731
(1992), it is my humble opinion and conclusion that it in no way

88
88 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

impedes the Court’s authority to indicate the interim measures requested
by Libya.

Resolution 748 (1992) which was adopted while the Court was con-
sidering Libya’s request for interim measures, is undoubtedly within
the power and function of the Security Council since it falls under
Chapter VII of the Charter, particularly Article 41.

What then is the legal effect of resolution 748 (1992) on the Court’s
authority to indicate interim measures? There is no doubt that there is an
overlap between the powers and functions of the Court and Security
Council, which I mentioned earlier in the opinion. The resolution is a deci-
sion of the Security Council and therefore its effect and validity is even
stronger than that of resolution 731 (1992) in light of the provisions of
Article 25 and Article 103 of the Charter. Article 25 enjoins Members to
“respect and carry out the decisions of the Security Council” and Ar-
ticle 103 provides that in any case of conflict of obligations between the
Charter and other international agreement, the obligation under the
Charter is supreme and shall prevail. Arguably, certain intrinsic defects
may invalidate the two resolutions mentioned herein. For example, there
is the issue of nemo iudex in sua causa, as well as the possible effect of
Article 27 (3) of the Charter on the resolutions. Nevertheless, I do not
pronounce on their validity here, nor need I do so in order to reach my
decision.

However, in view of the provisions of resolution 748 (1992), it is my
opinion that the Court should decline to indicate the provisional mea-
sures requested by Libya. However, it is also my belief that the Court
should indicate provisional measures proprio motu under Article 75 of the
Rules of Court against both Parties to ensure non-use of force or aggra-
vation or extension of the dispute pending the Court’s judgment on the
merits.

The Court has the legal and inherent power to order provisional mea-
sures proprio motu against both Parties independent of any request made
by either Party. Such an independent indication of provisional measures
is not alien to the jurisprudence of this Court and its predecessor. In the
case concerning the Legal Status of the South-Eastern Territory of Green-
land the Permanent Court of International Justice pronounced:

“Whereas, on the other hand, the Court must consider whether or
not there is ground for proceeding, proprio motu, to indicate interim
measures of protection in connection with the two applications of
July 18th, 1932, independently of the Norwegian request to that
effect . . ” (P.CLJ., Series A/B, No. 48, pp. 287-288; emphasis
added).

89
89

1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

Again in the case of the Electricity Company of Sofia and Bulgaria
(Interim Measures of Protection) the Permanent Court of International
Justice ordered interim measures thus:

“Whereas according to Article 41, paragraph 1, of the Statute,

‘The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought
to be taken to reserve the respective rights of either party’;

And whereas, according to Article 61, paragraph 4, of the Rules,

‘The Court may indicate interim measures of protection other than
those proposed in the request.’

Whereas the above quoted provision of the Statute applies the
principle universally accepted by international tribunals and like-
wise laid down in many conventions to which Bulgaria has been a
party — to the effect that the parties to a case must abstain from any
measure capable of exercising a prejudicial effect in regard to the
execution of the decision to be given and, in general, not allow any
step of any kind to be taken which might aggravate or extend the dis-
pute” (P.C.LJ., Series A/B, No. 79, p. 199; emphasis added).

The Court in the Anglo-Iranian Oil Co. case reached a similar conclu-
sion on the power of the Court to indicate provisional measures proprio
motu when it declared:

“Whereas the object of interim measures of protection provided
for in the Statute is to preserve the respective rights of the Parties
pending the decision of the Court, and whereas from the general
terms of Article 41 of the Statute and from the power recognized by
Article 61, paragraph 6, of the Rules of Court, to indicate interim
measures of protection proprio motu, it follows that the Court must be
concerned to preserve by such measures the rights which may be sub-
sequently adjudged by the Court to belong either to the Applicant or to
the Respondent.” (I.C_J. Reports 1951, p.93; emphasis added.)

Even quite recently and with absolute clarity the Court boldly empha-

sized its power to indicate provisional measures in the case of Frontier Dis-
pute (Burkina Faso/Republic of Mali) when it stated:

90

“Considering that, independently of the requests submitted by the
Parties for the indication of provisional measures, the Court or, accord-
ingly, the chamber possesses by virtue of Article 41 of the Statute the
power to indicate provisional measures with a view to preventing the
aggravation or extension of the dispute whenever it considers that
90 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

circumstances so require” (.C.J. Reports 1986, p.9, para. 18; empha-
sis added).

The learned author Sir Gerald Fitzmaurice had this to say on the issue
of interim measures on page 542 in The Law and Procedure of the Interna-
tional Court of Justice, Vol. IT, 1986,

“c. As has been shown above, the power of the Court to indicate
interim measures falls into the same category as its compétence de la
compétence. Both are an exercise of incidental jurisdiction, necessary
in the case of the compétence de la compétence to enable the Court to
function at all, and, in the case of the power to indicate interim mea-
sures, to prevent its decisions from being stultified. Now in the case
of the Court, its power to determine its own jurisdiction is specifi-
cally provided for by Article 36, paragraph 6 of the Statute. Yet it is
established law that this power is part of the inherent powers of all
international tribunals, irrespective of whether it has been expressly
conferred on them or not — a view specifically endorsed by the
Court when it said in the Nottebohm case (Jurisdiction) . . .”

Such indication of provisional measures will not run against the deci-
sion of the Security Council as contained in resolution 748 (1992) since the
resolution does not condone the use of any force. Resolution 748 (1992) is
quite elaborate and states in clear and unambiguous terms the decision of
the Security Council which should be carefully examined here in order to
explain my conviction that the Court’s indication of interim measures
proprio motu to enjoin the use of force pending judgment on the merits
would not interfere with the functioning of the Security Council.

The first point is that resolution 748 (1992) reaffirms all that is con-
tained in resolution 731 (1992) and as already explained, resolution 731
(1992) falls under Chapter VI of the Charter and in particular
Article 36 (1). In effect, all resolution 731 (1992) requested from Libya is
that she must comply with the demands of the United Kingdom and the
United States as contained in their respective and joint statements on this
issue. There is nothing in resolution 731 (1992) to indicate approval, expli-
cit or implicit, by the Security Council of the use of force to ensure Libya’s
compliance. The preambular paragraphs, while noting the reports of the
Secretary-General, restated the Security Council’s position on terrorism
and how and why the same must be effectively dealt with and reaffirmed
the need for all States to refrain from organizing, asserting or participating
in acts of terrorism. Again, it should be noted here too that there is nothing
suggestive of support for the use of force by the Security Council.

91
91 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

As regards the operative part of the resolution, the Security Council
made it abundantly clear that it was acting under Chapter VII of the Char-
ter. This is an important point to note, because this Chapter deals with
“Action with respect to threats to the peace, breaches of the peace, and
acts of aggression”. Here again, one must ask which Article the Security
Council invoked when it adopted resolution 748 (1992) having regard to
the content of the decisions contained therein. A thorough perusal of the
resolution clearly indicates that the Council was acting, as I have said
earlier, under Article 41 of the Charter which deals with the issue of
economic sanctions.

Article 41 of the Charter directs that:

“The Security Council may decide what measures not involving the
use of armed force are to be employed to give effect to its decisions,
and it may call upon the Members of the United Nations to apply
such measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and
other means of communication and the severance of diplomatic rela-
tions.” (Emphasis added.)

The emphasized words, when read in conjunction with para-
graphs 4 (a), (b), 5 (a), (b), (0), 6 (a), (b), (c)and 7 of resolution 748 (1992), all
give the unequivocal indication that the resolution is aimed at imposing
economic and commercial sanctions, along with diplomatic restrictions
against Libya and explicitly prohibits sanctions “involving the use of
armed force”. I have elaborated on the content of Article 41 in order to
show that although resolution 748 (1992) was adopted by the Security
Council under Chapter VII, Article 41 of this Chapter clearly prohibits the
use of force.

Libya also confirmed this in her latest observation dated 7 April 1992,
on the effect of resolution 748 (1992) when she noted that:

“the sanctions that the Security Council has adopted against Libya,
should it fail to comply with resolution 748 (1992), directly impair
Libya’s economic, commercial and diplomatic rights”.

The conclusion that I have therefore arrived at is that the Court would
not impair or impede the full force and effect of resolution 748 (1992) if it
were to indicate measures proprio motu or even suo motu to enjoin both
Parties to this dispute from taking any action that may involve the use of
force or taking any step which might aggravate or extend the dispute
pending the Court’s judgment on the merits.

The next point which is equally germane to the issue of resolution 748
(1992) is the question of its validity. At the moment this assertion is neither

92
92 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

here nor there and consequently one relies on the decision of the Security
Council with regard to resolution 748 (1992) based on its prima facie vali-
dity. This issue will be resolved one way or the other when the matter
comes up for argument on its merits. | have personally echoed my doubts
earlier on this point but one should at the moment let sleeping dogs lie.

Assuming, arguendo, that resolution 748 (1992) is valid on its face, the
United Kingdom in her observation of 7 April 1992 submits:

“Resolution 748 imposed legal obligations upon both of the Par-
ties to the present proceedings, which continue to subsist. Under the
system of the United Nations Charter (v. in particular Articles 25
and 103), should it be claimed that those obligations are in conflict
with obligations under any other international agreement, the obliga-
tions imposed by the resolution, being obligations under the United
Nations Charter, prevail.”

As already indicated, the Respondent is entitled to this view having
regard to other provisions of the Charter, so long as it does not resort to the
use of force to ensure compliance with the resolution.

The Parties have based much of their arguments on the issue of legal
rights. Without doubt, I think that the issue of legal rights is relevant and
important to the Application of Libya and that the Applicant must clearly
establish these rights to succeed on the merits. That is why Article 41 talks
of the preservation of the respective rights of either party. However, Ar-
ticle 75 of the Rules of Court does not refer to the issue of rights but merely
grants the Court the power to indicate provisional measures proprio motu
against any or all parties if after due examination the circumstances of the
case so require. In my view the Court should exercise the power conferred
by Article 75 in this case.

Each case must be decided on its own merits. Situations are always
changing. The world is in a state of flux economically and politically.
International law has been enriched by its dynamic development from
this Court. Even if in the past the measures suggested by me for indication
have always been incidental, there is every reason why they should be
indicated in this case given the urgent, serious and unique circumstances
that it presents. The world is constantly faced with new situations from
day to day, and it is imperative that the Court must always rise to the occa-
sion and meet the new demands and challenges of our time as they sur-
face. However, care must be taken that pronouncements, indications,
orders and judgments of the Court be given in accordance with interna-
tional law and one need not emphasize this. (Art. 38 (1) of the Statute of
the Court.) In this case, the Court has the power to pronounce on the pro-
visional measures I have suggested, in accordance with the provisions of
Article 75 of the Rules of Court. In addition, it is invariably the inherent

93
93 1971 MONTREAL CONVENTION (DISS. OP. AJIBOLA)

power of the Court to grant such provisional measures under customary
international law.

In conclusion, I believe that the Court should deny Libya’s request
for interim measures, but should independently apply the provisions of
Article 75 of the Rules of Court to prevent further escalation, aggrava-
tion or extension of the dispute pending judgment on the merits.

Again, I ask myself what is justice in a case of this nature, with regard to
the request for indication of provisional measures, which is before the
Court. To me, the fundamental focus and obligation as judges of the
Court must be to do justice in accordance with the spirit of Article 1 of the
Charter: to maintain international peace and security; to take effective
measures to prevent and remove all threats to peace; to suppress all
threats of aggression or any form of breaches of peace in any part of the
world within the spirit of the Charter and in accordance with international
law.

To me, justice requires prompt action to prevent deterioration of peace-
ful co-existence among nations of the world. No one goes to sleep when
the house is burning.

Finally, justice of this case requires that we should act in consonance
and within the spirit and content of Article 2 (3) of the Charter, which
states:

“All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.”

I would therefore indicate provisional measures in this case based on
Article 75 of the Rules of Court against both Parties pendente lite to pre-
vent the escalation, aggravation or extension of the dispute and in particu-
lar the use of force by either or both Parties.

(Signed) Bola AJIBOLA.

94


                                                                                204

                            DÉCLARATION DE M. LE JUGE BHANDARI

                 [Traduction]

                    1. En l’espèce, je me suis associé au vice‑président Yusuf, ainsi qu’aux
                 juges Cançado Trindade, Xue, Gaja et Robinson, pour joindre à l’arrêt
                 une opinion dissidente commune, dans laquelle nous concluons que la
                 Cour aurait dû retenir la troisième exception préliminaire soulevée par la
                 Colombie, dans la mesure où la demande du Nicaragua relative au pla‑
                 teau continental tombe clairement sous le coup de la chose jugée. Les
                 raisons qui fondent cette conclusion sont pleinement exposées dans ladite
                 opinion et je m’abstiendrai donc de les répéter ici.
                    2. Je voudrais cependant saisir la présente occasion pour formuler
                 aussi quelques brèves observations concernant la cinquième exception pré‑
                 liminaire soulevée par la Colombie, selon laquelle la requête est irrece‑
                 vable parce que le Nicaragua n’a pas obtenu la recommandation requise
                 de la Commission des limites du plateau continental (ci‑après la « Com‑
                 mission ») avant d’en saisir la Cour. Même si l’exercice pourra paraître
                 quelque peu futile compte tenu de la position exprimée par mes collègues
                 et moi‑même dans notre opinion dissidente commune à propos du prin‑
                 cipe de l’autorité de la chose jugée, il me semble nécessaire d’expliquer
                 pourquoi la Cour ne devrait pas, selon moi, connaître du fond de l’affaire
                 en l’absence des recommandations de la Commission visées par la conven‑
                 tion des Nations Unies sur le droit de la mer (ci‑après la « CNUDM »).
                    3. Le paragraphe 8 de l’article 76 de la CNUDM est libellé comme
                 suit :
                        « L’Etat côtier communique des informations sur les limites de
                     son plateau continental, lorsque celui‑ci s’étend au‑delà de
                     200 milles marins des lignes de base à partir desquelles est mesurée la
                     largeur de la mer territoriale, à la Commission des limites du plateau
                     continental constituée en vertu de l’annexe II sur la base d’une repré‑
                     sentation géographique équitable. La Commission adresse aux Etats
                     côtiers des recommandations sur les questions concernant la fixation
                     des limites extérieures de leur plateau continental. Les limites fixées
                     par un Etat côtier sur la base de ces recommandations sont définitives
                     et de caractère obligatoire. » (Les italiques sont de moi.)
                    4. Par ailleurs, au paragraphe 126 de l’arrêt rendu le 19 novembre 2012
                 en l’affaire du Différend territorial et maritime (Nicaragua c. Colombie),
                 se lit ceci :
                       « Dans l’affaire du Différend territorial et maritime entre le Nicara-
                     gua et le Honduras dans la mer des Caraïbes (Nicaragua c. Hondu-

                                                                                108

7 CIJ1093.indb 213                                                                              15/02/17 08:28

                         délimitation du plateau continental (décl. bandhari)              205

                       ras), la Cour a déclaré que « toute prétention [d’un Etat partie à la
                       CNUDM] relative à des droits sur le plateau continental au‑delà de
                       200 milles d[evait] être conforme à l’article 76 de la CNUDM et exa-
                       minée par la Commission des limites du plateau continental constituée
                       en vertu de ce traité » (C.I.J. Recueil 2007 (II), p. 759, par. 319). La
                       Cour rappelle que, aux termes de son préambule, la CNUDM a pour
                       objet d’établir « un ordre juridique pour les mers et les océans qui
                       facilite les communications internationales et favorise les utilisations
                       pacifiques des mers et des océans [ainsi que] l’utilisation équitable et
                       efficace de leurs ressources »… Eu égard à l’objet et au but de la
                       CNUDM, tels qu’exposés dans son préambule, le fait que la Colom-
                       bie n’y soit pas partie n’exonère pas le Nicaragua des obligations qu’il
                       tient de l’article 76 de cet instrument. » (C.I.J. Recueil 2012 (II),
                       p. 668‑669, les italiques sont de moi.)

                          La Cour ne devrait pas examiner au fond les moyens
                     du Nicaragua, et ce, essentiellement pour les raisons suivantes

                     5. Premièrement, sauf erreur de ma part, il n’est nullement avéré que le
                  Nicaragua ait effectivement fourni à la Commission des limites du plateau
                  continental les informations et la documentation complètes qui lui étaient
                  nécessaires pour pouvoir formuler sa recommandation. Il n’est donc pas
                  exclu que la Commission soit amenée à inviter le Nicaragua à étayer sa
                  demande à l’aide d’éléments additionnels ou complémentaires. La pré‑
                  misse même sur laquelle la majorité fonde sa conclusion, à savoir que le
                  Nicaragua se serait d’ores et déjà loyalement acquitté de l’ensemble des
                  obligations qu’il lui fallait honorer pour pouvoir obtenir une recomman‑
                  dation de la Commission, se révélerait alors infondée.
                     6. Deuxièmement, quand bien même j’admettrais, pour les besoins de
                  l’argumentation, que les informations soumises par le Nicaragua à la
                  Commission sont de nature à lui permettre, à terme, de formuler une
                  recommandation, le fait est que la Commission n’a encore jamais émis de
                  recommandations de ce type et que nous ne sommes pas en mesure de
                  prédire quand elle pourra être à même de le faire.
                     7. Troisièmement, je rappellerai que la Commission des limites du pla‑
                  teau continental est un organisme des Nations Unies qui a précisément
                  pour mission de formuler des recommandations de caractère obligatoire
                  sur la question même qui nous a été posée. Dès lors, par principe, et
                  en accord avec la ferme conviction qui est la mienne que les organes
                  des Nations Unies se doivent une courtoisie mutuelle, je considère
                  que ce serait manquer de prudence et de déférence envers la Commis
                 sion que de procéder, en l’absence de toute recommandation de sa part,
                 à l’examen au fond de la demande du Nicaragua relative au plateau
                 continental.
                     8. Quatrièmement, la Commission des limites du plateau continental
                  est une institution spécialisée dont le mandat exprès est de réaliser des

                                                                                109

7 CIJ1093.indb 215                                                                                15/02/17 08:28

                        délimitation du plateau continental (décl. bandhari)                206

                 recherches et de se prononcer sur les demandes relatives au plateau conti‑
                 nental. Elle se compose de 21 membres qui sont des experts de renommée
                 mondiale dans les domaines concernés, tels que la géologie, la géophy‑
                 sique ou l’hydrologie. Les juges composant la Cour ne peuvent, quant à
                 eux, prétendre à pareille expertise, et ils devront donc nécessairement
                 s’appuyer sur les dépositions de témoins‑experts pour se prononcer au
                 fond sur la demande du Nicaragua relative au plateau continental. Outre
                 qu’il y aurait dès lors à déplorer un gaspillage des précieuses ressources de
                 la Cour, la nature de la procédure contradictoire veut que les parties pré‑
                 sentent chacune les témoins qu’elles s’attendent à voir déposer dans leur
                 sens, et dont les avis peuvent donc fort bien être tout à fait différents de
                 ceux des experts de la Commission. La Commission et la Cour pourraient
                 ainsi parvenir à des conclusions incompatibles quant à la demande du
                 Nicaragua relative au plateau continental, situation qui serait pour le
                 moins inconfortable. J’estime donc, d’un point de vue pratique, aussi très
                 imprudent, dans de telles circonstances, de permettre l’examen au fond de
                 cette demande.
                    9. Cinquièmement, je rappellerai que la Cour a dit, au paragraphe 126
                 de son arrêt de 2012 en l’affaire Nicaragua c. Colombie, que « toute pré‑
                 tention … relative à des droits sur le plateau continental au‑delà de
                 200 milles d[oit] être conforme à l’article 76 de la CNUDM et examinée
                 par la Commission des limites du plateau continental constituée en vertu de
                 ce traité » (les italiques sont de moi) ; or, d’après mon analyse, l’« exa‑
                 men » d’une telle prétention prévu à l’article 76 de la CNUDM, au sens
                 où l’entendait la Cour dans cet arrêt, suppose que la Commission ait for‑
                 mulé un avis de caractère obligatoire. Conclure autrement reviendrait à
                 souffrir une lecture pour le moins laxiste de cette exigence, en ce sens qu’il
                 suffirait à une partie, pour s’en acquitter, de soumettre pour la forme cer‑
                 tains documents à la Commission avant de saisir la Cour. Avec tout le
                 respect que je porte à la majorité, je suis d’avis qu’une obligation aussi
                 superficielle priverait du sens qui devait être le sien le précédent par lequel
                 la Cour, en 2012, a jugé que les demandes devaient être « examinées » par
                 la Commission des limites du plateau continental, et irait à l’encontre de
                 l’esprit dans lequel ce processus était conçu au paragraphe 8 de l’article 76
                 de la CNUDM.
                    10. Sixièmement, le Nicaragua a signé la convention sur le droit de
                 la mer et il est donc lié par le paragraphe 8 de l’article 76 de cet instru‑
                 ment.
                    11. Septièmement, en vertu de l’article 60 du Statut, « [l]’arrêt [de la
                 Cour] est définitif et sans recours. En cas de contestation sur le sens et la
                 portée de l’arrêt, il appartient à [celle‑ci] de l’interpréter, à la demande de
                 toute partie ». En outre, le paragraphe 1 de l’article 61 du Statut stipule que

                      « [l]a revision de l’arrêt ne peut être éventuellement demandée à la
                      Cour qu’en raison de la découverte d’un fait de nature à exercer une
                      influence décisive et qui, avant le prononcé de l’arrêt, était inconnu

                                                                                110

7 CIJ1093.indb 217                                                                                15/02/17 08:28

                        délimitation du plateau continental (décl. bandhari)              207

                     de la Cour et de la partie qui demande la revision, sans qu’il y ait, de
                     sa part, faute à l’ignorer ».
                 Par ailleurs, le paragraphe 4 de ce même article impose une autre condi‑
                 tion de nature procédurale, « [l]a demande en revision dev[ant] être for‑
                 mée au plus tard dans le délai de six mois après la découverte du fait
                 nouveau ». En s’efforçant de la saisir derechef d’une demande relative à
                 son droit à un plateau continental que la Cour avait déjà rejetée dans son
                 arrêt de 2012, le Nicaragua tente de fait d’interjeter appel ou d’obtenir la
                 revision de celui‑ci. Or, pareille démarche va à l’encontre des termes
                 exprès des articles 60 et 61 du Statut, qui visent à garantir le caractère
                 obligatoire des arrêts de la Cour et à éviter leur remise en question par
                 une constante réouverture de la procédure. La décision de la majorité, qui
                 revient à autoriser cette démarche, met à mal la crédibilité de la Cour
                 mondiale ; l’intangibilité de ses arrêts et le respect qu’ils inspireront à
                 l’avenir s’en trouveront entamés, et je le déplore. Lorsqu’une question
                 contentieuse est tranchée par une juridiction compétente pour en
                 connaître, telle que la Cour internationale de Justice, le différend doit,
                 conformément au principe de l’autorité de la chose jugée, et dans l’intérêt
                 général, être tenu pour définitivement réglé entre les parties.
                    12. Huitièmement, permettre au Nicaragua d’ester devant la Cour sans
                 avoir obtenu la recommandation requise de la Commission des limites du
                 plateau continental reviendrait à priver celle‑ci de toute utilité et de tout
                 pouvoir véritable. Le Nicaragua devrait donc avoir l’obligation d’attendre
                 le résultat de sa démarche devant la Commission avant de saisir la Cour,
                 et ne devrait être autorisé à venir chercher devant celle‑ci le remède qu’il
                 sollicite qu’après avoir pris connaissance du sort qui lui aura été réservé.
                    13. En résumé, je ne vois aucune raison valable de laisser le Nicaragua
                 se soustraire à la procédure d’examen par la Commission à laquelle il est
                 tenu de se plier en vertu de la CNUDM. Indépendamment même de ma
                 vive opposition à l’égard du raisonnement suivi par la majorité sur la
                 question de l’autorité de la chose jugée, qui intéresse la troisième excep‑
                 tion préliminaire soulevée par la Colombie, j’estime que la demande du
                 Nicaragua devrait en tout état de cause être jugée irrecevable parce que
                 celui‑ci a manqué à ses obligations conventionnelles, et je conclurai en
                 conséquence que la cinquième exception préliminaire de la Colombie
                 devrait être retenue.

                                                              (Signé) Dalveer Bhandari.

                                                                                111

7 CIJ1093.indb 219                                                                               15/02/17 08:28