94

DISSENTING OPINION OF JUDGE EL-KOSHERI

1. To any human being, what happened over Lockerbie was a horrible
event which requires that those responsible for it be punished and justice
duly rendered in conformity with the applicable legal rules. With that end
in view, the facts should be clearly established in their true chronological
sequence in order to demonstrate the nature and scope of the case pending
before the International Court of Justice, as well as to provide a clear dis-
tinction between the legal reality and the political aspects which are
entrusted under the United Nations Charter to another principal organ of
the international organization: the Security Council.

2. According to the documents filed in the present case, the first rele-
vant factual element occurred on 14 November 1991, when a Grand Jury
of the United States District Court for the District of Columbia handed
down an indictment charging two Libyan nationals with causing a
destructive device to be placed on board Pan Am flight 103, which device
exploded and led to the crash at Lockerbie, Scotland. On the same day, the
Lord Advocate of Scotland announced the issue of warrants for the arrest
of the same two Libyan individuals, charging them with involvement in
the destruction of Pan Am flight 103. Four days later, on 18 November
1991, the Libyan authorities issued a statement indicating that the indict-
ment documents had been received and that, in accordance with the appli-
cable rules, a Libyan Supreme Court Justice had already been assigned to
investigate the charges; the statement also, inter alia, asserted the Libyan
judiciary’s readiness to co-operate with all legal authorities concerned in
the United Kingdom and the United States.

3. On 27 November 1991, the Governments of the United States and
the United Kingdom issued a joint declaration to the Government of
Libya demanding, inter alia, the surrender for trial of the two individuals
charged with the Lockerbie incident. On the following day, 28 November
1991, the Libyan Government issued a communiqué in which it was stated
that the application made by the United States and the United Kingdom
would be investigated by the competent Libyan authorities, who would
deal with it seriously and in a manner that would respect the principles of
international legality, including, on the one hand, Libya’s sovereign rights
and, on the other, the need to ensure justice both for the accused and for
the victims. In the meantime, the Libyan investigating judge took steps to
request the assistance of the authorities in the United Kingdom and the
United States, offering to travel to these countries in order to review the
evidence and to co-operate with his American and British counterparts.

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95 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

4. Since these offers were either explicitly rejected in public (parlia-
mentary debates) or ignored, remaining without response, two identical
letters were addressed on 17 January 1992 to the United States Secretary
of State and the British Secretary of State for Foreign Affairs. In these
letters, the Secretary of the People’s Committee for Foreign Liaison and
International Co-operation drew the attention of his counterparts to the
fact that Libya, the United States and the United Kingdom were all parties
to the 1971 Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation, commonly known as the Montreal Convention.
He then indicated that as soon as the charges had been made against the
two accused, Libya had exercised its jurisdiction over them in accordance
with Libyan national law and Article 5 (2) of the Montreal Convention.
This was done by adopting certain measures to ascertain the presence in
Libya of the accused, by instituting a preliminary enquiry into the matter
and by notifying the States mentioned in Article 5 (1) of the Convention
that the suspects were in custody. The letters went on to note that
Article 5 (3) of the Montreal Convention did not exclude any criminal
jurisdiction exercised in accordance with national law and that, the
alleged offenders being present in Libyan territory, Libya had, in accord-
ance with Article 5 (2) of the Convention, taken the necessary measures
to establish its own jurisdiction over the offenders characterized in
Article 1 (1), subparagraphs (a), (b)and (c) and Article 1 (2). Recalling that
Article 7 provided that the Contracting Party in whose territory the
alleged offender is found shall, if it does not extradite him, submit the case
to its own competent authorities for the purpose of prosecution, the two
letters indicated that Libya had already submitted the case to its judicial
authorities and that an examining magistrate had been appointed. The
letters then observed that the judicial authorities of the United States and
the United Kingdom had been requested to co-operate in the matter, but
that there had been no official response to these requests. Instead, the
United Kingdom and the United States had threatened Libya while not
ruling out the use of armed force.

5. In these circumstances, and bearing in mind the provisions of Arti-
cle 33 (1) of the United Nations Charter, the Libyan letters of 17 January
1992 called upon the United States and the United Kingdom to agree to an
arbitration of the dispute in accordance with Article 14 (1) of the Montreal
Convention and to meet with the representative of Libya as soon as pos-
sible in order to elaborate the details of such an arbitration (the English
translation of the original Arabic text of these letters appears in Security
Council document S/23441 as an Annex to the letter of 18 January 1992
from the Permanent Representative of Libya to the President of the Secu-
rity Council requesting circulation thereof in connection with Libya’s
calls for the implementation of Article 14 of the Montreal Convention).

6. The above factual survey of the correspondence exchanged during

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96 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

the period between 14 November 1991 and 18 January 1992 demonstrates
beyond any doubt that prior to the adoption of Security Council resolu-
tion 731 (1992), Libya had not only invoked the need to arbitrate a dispute
relating to the application and interpretation of the Montreal Convention
in compliance with Article 14 (1) thereof but also informed the Security
Council about the existence of that dispute in compliance with
Article 33 (1) of the Charter (in Chapter VD) which requires that:

“The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall
first of all, seek a solution by negotiation, enquiry, mediation, concil-
iation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.”

7. The dispute referred to in the two letters of 17 January 1992 is pre-
cisely the one now submitted to the Court, which, by virtue of Article 92 of
the United Nations Charter, is “the principal judicial organ of the United
Nations” and thus exercises a function fundamentally different in nature
and operating methods from that conferred upon the Security Council by
Article 24 of the Charter. In essence, the Security Council is charged with
“primary responsibility for the maintenance of international peace and
security” (Art. 24, para. 1) and has in this respect to “act in accordance
with the Purposes and Principles of the United Nations” (Art. 24, para. 2,
which thus necessarily refers to Chapter I, entitled: “Purposes and Prin-
ciples”, Arts. 1 and 2).

8. Accordingly, a basic distinction has to be drawn between the
claimed “dispute” of a legal character which Libya submitted to the Court
in the present proceedings, introduced on 3 March 1992, and the political
issues pertaining to State-sponsored acts of terrorism commonly known
as “State terrorism” (for the exact definition of “terrorisme d’Etat”,
Judge Gilbert Guillaume justly indicated that this usually means: “la vio-
lence organisée par l'Etat lui-même, selon ses propres normes de droit, en
vue de faire régner la terreur sur son territoire” (Recueil des cours de
l’Académie de droit international de La Haye, Vol. 215 (1989-IIT), p. 297),
expressing his preference for distinguishing that type of unlawful activity
from the “soutien apporté par les Etats aux activités terroristes” (ibid.
p. 299). The undertaking to eliminate all forms of terrorism, whether
by private persons and groups or in the form of State terrorism and
State-sponsored terrorism, falls necessarily within the scope of the
Security Council’s functions and powers. Thus Security Council resolu-
tions 731 (1992) of 21 January 1992 and 748 (1992) adopted on 31 March
1992, mainly addressed the enquiry into Libya’s possible involvement in
sponsoring terrorist activities such as those which led to the destruction of
the Pan Am plane over Scotland in 1988 and the UTA plane over Niger in
1989.

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97 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

9. Clearly, the case filed by Libya in the Registry of the Court on
3 March 1992 relates to “Questions of Interpretation and Application of
the 1971 Montreal Convention”, legal questions arising in relation to the
aerial incident at Lockerbie, and this case remains the only matter sub-
mitted to the Court, since the two Respondent States (the United King-
dom and the United States of America) have not introduced any counter-
claims pertaining to the alleged involvement of the Libyan Government in
directing or assisting the two suspects and the State responsibility ensuing
as a result thereof. The mere fact that the two suspects are civil servants
in Libya does not automatically render them “organs” or “agents” for
whose actions the Libyan Government become ipso jure internationally
responsible. To establish such responsibility from a legal point of view,
adequate evidence must be provided:

First: that the two suspects were truly the authors of that horrible mas-
sacre; and,

Second: that they committed their crime upon orders from their govern-
mental supervisors or at least with the knowledge and acquiescence of
those persons.

Only then could the criminal activity in question be legally attributable to
the Libyan Government, and State responsibility be established. In other
words, unless the two basic elements indicated above are fulfilled the
involvement of the Libyan Government remains an allegation without
legal effects, and there can always be a certain degree of doubt about
either the culpability of the two suspects or the involvement of the Libyan
Government (as the persons concerned may, for whatever motives, have
acted on their own initiative).

x * +

10. Taking into account the above-stated basic legal premises, the
relevance of Security Council resolutions 731 (1992) and 748 (1992) to the
present court proceedings should be carefully analysed.

11. To begin with resolution 731, adopted on 21 January 1992, its word-
ing and the discussion that took place during the meeting at which it was
adopted (doc. S/PV. 3033) reveal that it constitutes a Chapter VII “recom-
mendation” under Article 39 of the Charter, i.e., one pertaining to the
maintenance of international peace and security.

12. The text of the resolution itself, as well as the interventions of those
who participated in the debates, clearly indicates unanimous, general and
deep concern at the “worldwide persistence of acts of international terror-
ism in all its forms”, particularly “illegal activities directed against inter-
national civil aviation”, and the Security Council’s determination “to
eliminate international terrorism”. Specifically, with regard to the attacks
carried out against Pan Am flight 103 and UTA flight 772, the Council

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98 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

expresses a deep concern “over results of investigations, which implicate’
officials of the Libyan Government”, and after strongly deploring “the

fact that the Libyan Government has not yet responded effectively to the

above requests [of France, the United Kingdom and the United States of

America] to co-operate fully in establishing responsibility for the terrorist

acts” in question, the Council, in a key paragraph:

“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.”

13. By so acting, the Security Council politically condemned the
Libyan Government in two ways:

(i) by endorsing the requests of the three big Powers, which included the
demand by two of them that the two Libyan suspects be surrendered;

(ii) by considering that a full and effective response to those requests
would contribute to the elimination of international terrorism, and
thus conduce to the restoration of international peace and security.

14. At the same time, the Security Council totally ignored Libya’s plea
regarding the pacific settlement under Chapter VI of the dispute already
existing about the application and interpretation of the Montreal Conven-
tion, of which the President of the Security Council had, as previously
mentioned, been informed on 18 January 1992. The Libyan delegate
reiterated his country’s position in this respect during the 21 January meet-
ing of the Security Council, stating:

“T repeat that the investigation in Libya has unfortunately not yet
made any progress owing to the lack of cooperation on the part of
other parties and their refusal to transmit the dossiers of their investi-
gations. In practical terms, this can only mean either that no investi-
gation was actually conducted or that, as we have noted, the investi-
gation was grossly deficient.

Ishould like to state once again that this dispute is of a purely legal
nature, which should lead the Council to recommend its settlement
through the divers legal channels that are available, not only within
the framework of the United Nations Charter but also under the pro-
visions of more relevant international conventions, such as the afore-
mentioned Montreal Convention of 1971. On the basis of that
Convention, particularly its article 14, and to solve the question
raised about a conflict of competence, my country has taken concrete
and practical measures and, in official communications addressed to
both the United States of America and the United Kingdom, has
requested that the dispute be referred to arbitration. Today, before
the Council, my country requests that both those countries be invited

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1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

to enter promptly into negotiations with Libya on proceedings lead-
ing to arbitration and an arbitral panel. To ensure the speedy settle-
ment of the dispute, we consider that a short and fixed deadline be set
for those proceedings, after which, if no agreement is reached on
arbitration, the matter would be brought before the International
Court of Justice.

My country expresses its willingness to conclude immediately,
with any of the parties concerned, an ad hoc agreement to have
recourse to the International Court of Justice as soon as the short
deadline for reaching agreement on arbitration expires, or at any
other convenient and near date should the countries concerned agree
to go beyond the arbitration stage and the proceedings of an arbitra-
tion panel.

In that light, how can this dispute be considered a political one?
We do not believe that it is, for Chapter VI of the Charter also sets
forth concrete methods of reaching a peaceful settlement. The Coun-
cil has been guided by those methods in earlier instances. The matter
should not be handled in the light of any considerations other than
those set forth in the Charter. Libya has never threatened any coun-
try. It cannot behave in such a way as to endanger peace and security.
Indeed, Libya is being threatened by super-Powers, just as armed
aggression was unleashed against it in 1986. Libya is still being
subjected to an economic boycott, disinformation campaigns and
psychological pressure.

In conclusion, the legality of the Council’s work is subject to its
observance of the provisions of the Charter of the Organization and
to its proper implementation of those provisions. It is inconceivable
that this could be achieved through the participation of the parties to
this dispute in the voting on the present draft resolution. To disregard
the legal nature of the dispute and treat it as a political matter would
constitute a flagrant violation of the explicit provisions of Article 27,
paragraph 3, of the Charter.

The Council has two choices: it can respect the Charter and follow
moral principles and international law, or it can respond to this
unjust request by the United States of America and the United King-
dom, which want to use the Council as a cover for military and eco-
nomic aggression against a small country that is striving to free itself
from economic backwardness. We are fully confident that the mem-
bers of the Council — indeed, all Members of the United Nations —
will uphold the principles enshrined in the Charter and international
law and respect the principles of justice and equity that my country is
asking to be applied and abided by.” (Provisional Verbatim Record
of the Security Council meeting held on 21 January 1992, doc.
S/PV.3033, pp. 22-25.)
100 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

15. The Security Council’s avoidance of treating the legal aspects of the
problem debated before the adoption of resolution 731 (1992) could have
been due to various reasons, including a desire to exclude recourse to
Article 27, paragraph 3, of the Charter, which would have prevented the
United Kingdom and the United States of America from participating in
the voting, since “in decisions under Chapter VI ... a party to a dispute
shall abstain from voting”, or simply concern to remain in the political
arena without dwelling on the legal issues raised by Libya, since they logi-
cally fell within the jurisdiction of the International Court of Justice.

16. Whatever may be the reasons, the issue of the application and inter-
pretation of the Montreal Convention was clearly left outside the scope of
resolution 731 (1992). Hence, when faced with a continuous negative atti-
tude blocking the prospect of negotiations with the United Kingdom and
the United States of America, whether with a view to amicable settlement
or to the conclusion of an arbitration agreement as provided for in Ar-
ticle 141) of the Montreal Convention, Libya had no other alternative but
to resort to the International Court of Justice in implementation of that
same provision. In doing so, the Libyan Government lawfully exercised a
right, and cannot be blamed for acting in that manner. It has become axio-
matic to state that the unilateral invocation of the Court’s jurisdiction
should never be regarded as an unfriendly act, as witness the specific dec-
laration issued by the Institut de droit international in 1959, to the effect
that “recourse to the International Court of Justice or to another interna-
tional court or arbitral tribunal can never be regarded as an unfriendly act
towards the respondent State” (Annuaire de l’Institut de droit international,
Vol. 48-IT, 1959, p. 381), as well as paragraph 6 of United Nations General
Assembly resolution 3232 (XXIX) of 12 November 1974, according to
which: “recourse to judicial settlement of legal disputes, particularly
referred to the International Court of Justice, should not be considered as
an unfriendly act between States”.

17. Moreover, on a number of occasions the legal aspects of a given
dispute have been submitted to the International Court of Justice with
requests to indicate provisional measures notwithstanding the fact that
the political organs of the United Nations were seised with the other
aspects of the same dispute (Anglo-Iranian Oil Co. (United Kingdom v.
Iran), Interim Protection, LC.J. Reports 1951, pp. 89-98; United States
Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Provisional Measures, I.C.J. Reports 1979, pp. 7-21; Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States of
America), Provisional Measures, I.C.J. Reports 1984, pp. 169-207; Aegean
Sea Continental Shelf (Greece v. Turkey), Interim Protection, I.C.J. Reports
1976, pp. 3-40).

18. Such parallel co-existence once permitted Judge Petrén to empha-
size: “The natural distribution of roles as between the principal judicial

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101 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

organ and the political organs of the United Nations . . .” (Separate opin-
ion in the Advisory Opinion of 12 June 1971 concerning the Legal Conse-
quences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
1.C.J. Reports 1971, p. 127)..No overlapping could normally be envisaged,
so long as the basic criterion of demarcation remains that explicitly stated
by the Court in the same Advisory Opinion, according to which:

“the Court as the principal judicial organ of the United Nations...
acts only on the basis of the law, independently of all outside influ-
ence or interventions whatsoever... A court functioning as a court of
law can act in no other way.” (Ibid. p. 23, para. 29.)

19. However, the appearance on the scene of the new Security Council
resolution 748 (1992) on 31 March 1992, just three days after the closing of
the hearings on Libya’s request for provisional measures, is unprece-
dented and raises an important issue about its implications for the present
proceedings.

20. Resolution 748 (1992) not only reaffirmed resolution 731 (1992) of
12 January 1992 but added inter alia that:

“the failure by the Libyan Government 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 international peace and security”.

21. Acting under Chapter VII of the Charter, the Security Council
decided that: “the Libyan Government must now comply without any
further delay with paragraph 3 of resolution 731 (1992) regarding the
requests contained in documents S/23306, S/23308 and S/23309”, other-
wise the sanctions provided for in paragraphs 4, 5 and 6 shall become
effective as of 15 April 1992.

22. Evidently, resolution 748 (1992) of 31 March 1992 falls within the
category of decisions under Chapter VII which enjoy as a general rule a
binding character, in the sense that non-compliance with them is con-
sidered a threat to peace and creates new obligations for all parties
concerned.

23. Nevertheless, it has to be noted that there are doctrinal authorities
who maintain that the Members of the United Nations are not “obliged”
to carry out all decisions of the Security Council. In his analysis of
Article 25 of the Charter, Hans Kelsen wrote:

“It seems, however, as if Article 25 does not mean that the Mem-
bers are obliged to carry out all decisions of the Security Council
since, according to its wording, they agree to accept and carry out

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decisions of the Security Council ‘in accordance with the present
Charter’.” (Hans Kelsen, The Law of the United Nations — A Critical
Analysis of its Fundamental Problems, London, 1950, p. 95.)

“The meaning of Article 25 is that the Members are obliged to
carry out these decisions which the Security Council has taken in
accordance with the Charter.” (Ibid)

“The term ‘decision’ may be interpreted to mean. . . only decisions
which, in accordance with the provisions of the Charter under which
they are adopted, are binding upon the Members.” (Ibid, p. 293.)

24. The case-law of the Court and the opinions expressed by a number
of Judges provide that concept with some support. It has to be remem-
bered, in connection with the Advisory Opinion on Namibia previously
referred to, that the Governments of France and South Africa objected
that both the General Assembly and the Security Council had acted ultra
vires in the Namibia question. The Court ruled in this respect that:

“Undoubtedly, the Court does not possess powers of judicial
review or appeal in respect of the decisions taken by the United
Nations organs concerned . .. However, in the exercise of its judicial,
function and since objections have been advanced the Court, in the
course of its reasoning, will consider these objections before deter-
mining any legal consequences arising from those resolutions.”
(LCJ. Reports 1971, p. 45, para. 89.)

25. In effect, the Court there exercised the important function of ascer-
taining that the resolutions in question had been taken in conformity with
the rules of the Charter, and as a result of that exercise it declared that:

“In examining this action of the General Assembly it is appropri-
ate to have regard to the general principles of international law . . .”
({bid., p. 46, para. 94.)

“The Court has therefore reached the conclusion that the decisions
made by the Security Council in paragraphs 2 and 5 of the resolutions
276 (1970), as related to paragraph 3 of resolution 264 (1969) and
paragraph 5 of resolution 269 (1969), were adopted in conformity
with the purposes and principles of the Charter and in accordance
with its Articles 24 and 25. The decisions are consequently binding
on all States Members of the United Nations, which are thus under
obligation to accept and carry them out.” (Jbid., p. 53, para. 115.)

26. By entering upon this type of legal scrutiny in order to satisfy itself
of the conformity of the Security Council’s decisions, or parts thereof, not
only with the rules enshrined in the provisions of the Charter, but also
with “the purposes and principles of the Charter”, the Court implied that

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1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

it was perfectly conceivable that it could reach a negative decision, were it
to detect any violation of the Charter or departure from the Charter’s
purposes and principles.

27. Furthermore, alluding to General Assembly resolution 171 (ID) of
14 November 1947, recommending the reference to the Court of a point of

law

“relating to interpretation of the Charter”, Judge Gros stated in his

dissenting opinion that: “it would have seemed particularly appropriate
to have exercised unambiguously the Court’s power to interpret the Char-

ter.

..” (CJ. Reports 1971, p. 332, para. 19); and

“Tt used not to be the Court’s habit to take for granted the premises
of a legal situation the consequences of which it has been asked to
state... How indeed can a court deduce any obligation from a given
situation without first having tested the lawfulness of the origins of
that situation?” (Jbid., pp. 331-332, para. 18.)

28. A survey of the opinions expressed in that case by other Judges
reveals that many of them were eager to indicate their deep attachment to
the right of ensuring that the Court exercises its function as the guardian
of legality throughout the United Nations system.

29. In his separate opinion, Judge Ammoun emphasized:

“the International Court of Justice owed it to itself to discharge its
own obligations by not closing its eyes to conduct infringing the
principles and rights which it is its duty to defend” (ibid., p. 72,
para. 3).

30. Judge Petrén also declared in his separate opinion:

“So long as the validity of the resolutions upon which resolution
276 (1970) is based has not been established, it is clearly impossible
for the Court to pronounce on the legal consequences of resolution
276 (1970), for there can be no such legal consequences if the basic
resolutions are illegal . . .” (Ibid., p. 131.)

In another separate opinion, Judge Onyeama stated:

104

“In exercising its functions the Court is wholly independent of the
other organs of the United Nations and is in no way obliged or con-
cerned to render a judgment or opinion which would be ‘politically
acceptable’. Its function is, in the words of Article 38 of the Statute,
‘to decide in accordance with international law’.

rect judgment or opinion could not be rendered without determining
104 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

the validity of such decisions, the Court could not possibly avoid
such a determination without abdicating its role of a judicial organ.

SY

I do not conceive it as s compatible with the judicial function that
the Court will proceed to state the consequences of acts whose valid-
ity is assumed, without itself testing the lawfulness of the origin of
those acts.” (Jbid., pp. 143-144.)

31. In response to a question about the Court’s power to pronounce as
to the invalidity or nullity of resolutions of the General Assembly and
Security Council, and with reference to a dictum of Judge Morelli’s in a
previous case (.C_J. Reports 1962, p. 223) concerning a resolution initiated
by a manifest excés de pouvoir, Judge de Castro envisaged the interplay
of two principles:

“1. The principle of division of powers — the Charter set up
three organs, each having sovereign powers in the sphere of its com-
petence...;

2. The principle of egal- ness’ — the Court, : as a legal organ,
cannot co-operate with a resolution which is clearly void, contrary to
the rules of the Charter, or contrary to the principles of law.”
(CJ. Reports 1971, p. 180.)

32. Finally, the dissenting opinion of Judge Sir Gerald Fitzmaurice
provided a profound analysis of the various presentations, which can be
summarized as follows:

(i) the Security Council, even when acting genuinely for the preserva-
tion or restoration of peace and security, has a scope of action limited
by the State’s sovereignty and the fundamental rights without which
that sovereignty cannot be exercised (ibid., p. 226);

(ii) the relevant circumstances sufficed to render resolution 2145 invalid
and inoperative (ibid., p. 280, para. 91);

(iii) Article 25 cannot render binding a decision not taken “in accordance
with the present Charter” (ibid., p. 293, para. 113);

(iv) even when acting under Chapter VII of the Charter, the Security
Council has no power to abrogate or alter existing rules (ibid., p. 294,
para. 115);

(v) the United Nations (with all its organs, including the Security Coun-
cil) is itself a subject of international law, and subject to it, no less
than its individual Member States (ibid., p. 294, para. 115);

(vi) a political organ is not competent to make the necessary legal deter-
mination on which the justification for each action must rest. This
can only be done by a legal organ competent to make such determina-
tion, otherwise the resolution may have to be considered ultra vires
and hence invalid (ibid., pp. 299-301).

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33. In the light of the statements emanating from the above-mentioned
authorities, it is possible to consider that the Security Council, when
adopting paragraph 1 of resolution 748 (1992), impeded the Court’s juris-
diction freely to exercise its inherent judicial function with regard to issues
on which argument had been heard just a few days before, and that by
doing so the Security Council committed an act of excés de pouvoir which
amounts to a violation of Article 92 of the Charter, which entrusted the
International Court of Justice with the mission of being “the principal
judicial organ of the United Nations”.

34. In order properly to discharge its main function, the Court must
have full liberty to exercise its adjudicating powers and to form its own
opinion on the issues under consideration without any limitation.

35. As was rightly stated by Judge Morelli:

“Any limitation ... would be unacceptable because it would pre-
vent the Court from performing its task in a logically correct way. ...

es +

both to the rules of law and logic by which the Court is bound and
also to the objective which the Court must pursue, which is the solu-
tion of the question submitted to it.” (Separate opinion, Advisory
Opinion of 20 July 1962 concerning Certain Expenses of the United
Nations (Article 17, paragraph 2, of the Charter), I.C.J Reports 1962,
pp. 217-218.)

36. The ultra vires character of paragraph 1 of resolution 748 (1992)
appears even more serious considering that a number of delegates at the
Security Council meeting of 31 March 1992 are reported to have warned
those pushing for a hasty adoption of the draft then under discussion
against the negative effects of such failure to observe due respect for the
Court’s credibility and the integrity of its judicial function.

37. According to the Provisional Verbatim Record, Mr. Jesus of Cape
Verde pointed out that:

“It would be more appropriate if the Council were to act after the
International Court of Justice — which is now seised of this matter —
had decided. . .” (Doc. S/PV.3063, p. 46.)

38. The President for the month of April, Mr. Mumbengegwi of Zim-
babwe, reminded the Council that:

“The Charter provides that disputes of a legal nature should, as a
general rule, be referred by the parties to the International Court of
Justice...

By taking the Chapter VII route while this case is still pending
before the World Court, the Security Council is risking a major insti-
tutional crisis. Such an institutional crisis, which is clearly avoidable,
would not only undermine the prestige, credibility and integrity of

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106 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

the entire Organization but would also sap international confidence
in the Security Council’s capacity to execute, in a judicious and
objective manner, its mandate as provided for in the Charter. We are
convinced that it would have been in the best interests of interna-
tional tidiness for the Security Council to await the outcome of the
judicial proceedings at the International Court of Justice.” (Doc.
S/PV.3063, pp. 52-53.)

39. The Indian representative, Mr. Gharekhan, among others, stressed
that:

“The considered opinion of the International Court of Justice on
the legal aspects of the issues involved can only serve the cause of
international law and peace.” (Jbid., p. 58.)

40. It is clear that those wise warnings were ultimately inspired by the
respect due to the United Nations Charter, in its letter and spirit, but
unfortunately the appeal for supremacy of “the rule of law” went
unheeded in an atmosphere dominated by emotional political pressures.

41. In order to avoid the present situation, it would have been more
appropriate for certain members of the Security Council to take guidance
from the precedent established by the Council of the League of Nations
when it decided that it could not accept a petition because the subject-
matter was before the Permanent Court of International Justice, and post-
poned consideration of the question until that Court had given its
decision in the Minority Schools case (Shabtai Rosenne, The Law and Prac-
tice of the International Court, Vol. I, Leyden, 1965, p. 83).

42. Doubtless the Court itself, the principal judicial organ of the
United Nations, was not the target of the Council’s haste; the adoption of
resolution 748 (1992) without waiting for the Court’s ruling on the request
for provisional measures seems to have been more intended to put the
maximum pressure possible on Libya to forfeit its claim to invoke sover-
eign rights under Article 1, paragraph 2, Article 2, paragraph 7, and Arti-
cle 55 of the Charter. Yet the entire Organization is based on the principle
of the sovereign equality of all its Members, and the exercise of domestic
jurisdiction in matters such as extradition imposes on all other States, as
well as on the political organs of the United Nations, an obligation to
respect such inherent rights, unless the Court decides that such exercise is
contrary to international law, whether customary or conventional.

43. It is important to remember in this respect what Max Huber, the
former President of the Permanent Court of International Justice,
-declared when acting as sole arbitrator in the Island of Palmas case:

“Sovereignty in the relation between States signifies indepen-
dence. Independence in regard to a position of the globe is the right
to exercise therein, to the exclusion of any other State, the functions
of a State.” (Myres McDougal and Michael Reisman, International

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107 1971 MONTREAL CONVENTION (DISS. OP. EL-KOSHERI)

Law in Contemporary Perspective; the Public Order of the World Com-
munity : Cases and Materials, Mineola, New York, Foundation Press,
1981.)

44. Upholding the same basic concept of sovereignty as is protected
under the United Nations Charter, the United States courts ruled that:

“The right of a foreign power to demand extradition of one
accused of crime and the correlative duty to surrender him exists only
when created by treaty, and in the United States, in the absence of
statutory or treaty provision thereof, no authority exists in any
branch of the government to surrender a fugitive criminal to a foreign
government.” (Ramos v. Diaz, 179 F. Sup. 459 (S.D. Fla. 1959), repro-
duced by McDougal and Reisman, op. cit., at p. 1498.)

45. Moreover, in the Asylum case, the Court strongly emphasized that:
“A decision with regard to extradition implies only the normal exercise of
the territorial sovereignty.” (.C.J. Reports 1950, p. 274.)

46. It would be hard to believe that under contemporary international
law the rights of a foreign fugitive are more protected than those of an
accused citizen, or that what is a legal act of the United States Government
becomes an illegal act for the Libyan Government, unless we are sup-
posed to be living on Orwell’s Animal Farm, where some animals are more
equal than others.

47. For all the above-stated considerations, I am of the opinion, with all
due respect, that paragraph 1 of Security Council resolution 748 (1992)
should not be considered to have any legal effect on the jurisdiction of the
Court, even on a prima facie basis, and accordingly that the Libyan
request for provisional measures has to be evaluated in accordance with
the habitual pattern reflected in the established jurisprudence of the
Court.

48. Without going into an extensive analysis of all the precedents
related to the granting or denial of provisional measures and the relevant
circumstances which led the Court to act one way or another, it seems
sufficient within the present context to refer essentially to the rules relied
upon in the most recent cases in which a request for provisional measures
was considered.

49. On the basis of Article 41 of the Statute, the Court may exercise its
independent jurisdiction to indicate provisional measures once satisfied
that “the provisions invoked by the Applicant appear, prima facie, to

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afford a basis on which the jurisdiction of the court [on the merits] might
be founded” (Passage through the Great Belt, Provisional Measures, Order
of 29 July 1991, I.C.J. Reports 1991, p. 15, para. 14).

50. In conformity with said established rule, I do believe that the provi-
sions of Article 14, paragraph 1, of the Montreal Convention invoked by
the Applicant appear to afford a prima facie basis on which the jurisdic-
tion of the Court might be founded. Here the basis is clearly stronger than
in the Anglo-Iranian Oil Co. case which produced the Order of 5 July 1951
granting interim measures of protection (1.C.J. Reports 1951, pp. 93-94),
though offering less outright justification than in the case concerning
United States Diplomatic and Consular Staff in Tehran, when the Court
adopted the Order of 15 December 1979 (.C.J. Reports 1979, pp. 14-15).

51. With regard to the existence of a dispute between the Applicant and
the Respondent which concerns the “interpretation or application” of the
1971 Montreal Convention, I am bound to note that, once one applies the
criteria unanimously established by the Court in the Advisory Opinion of
26 April 1988 concerning the Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of 26 June
1947 (I.C.J. Reports 1988, p. 32, para. 49) while taking into consideration
the wide difference of opinion between the Parties as reflected in the oral
proceedings, there cannot be the slightest doubt about the existence of a
dispute pertaining to the scope, applicability and interpretation of various
provisions in the Montreal Convention.

52. Inthe present phase of the proceedings, the Parties raised a number
of issues pertaining to determination of the questions whether the dispute
can “be settled through negotiation”, whether there has been a rejection of
a Libyan offer to arbitrate the dispute, and what might be the legal effect
of the six-month period contemplated by Article 14, paragraph 1, of the
Montreal Convention.

53. Recalling the famous dictum of the Permanent Court of Interna-
tional Justice in the Mavrommatis Palestine Concessions (P.C.I.J., Series A,
No. 2, p. 13), the Court’s Order in the case concerning United States Diplo-
matic and Consular Staff in Tehran (LCJ. Reports 1979, pp. 32-34,
paras. 52-56), and taking into account all the relevant circumstances as
reflected in the documents submitted by the Parties, I am of the opinion
that it would be safe to conclude that the United Kingdom and the United
Sates were not at any time, whether before or after seising the Security
Council, interested in settling the dispute through negotiations or through
recourse to arbitration. The Libyan notes of 8 January and 17 January
1992 were totally ignored, rendering those two methods of peaceful settle-
ment practically useless and inoperative. Thus there was no meaningful
reason to wait for the lapse of the six-month period, particularly when the
wording of “within” or “dans” which figures in the text of Article 14,
paragraph 1, of the Montreal Convention does not clearly render this

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time element a mandatory requirement which bars recourse to the Court
before its expiration.

54, The exercise by the Court of its power to indicate provisional mea-
sures is subject, according to the wording of Article 41, to the Court’s
determination that “circumstances so require”. In this respect, the estab-
lished jurisprudence of the Court with regard to the implications of this
phrase has recently been formulated in the following terms:

“Whereas the power of the Court to indicate provisional measures
under Article 41 of the Statute of the Court has as its object to pre-
serve the respective rights of the parties pending the decision of the
Court, and presupposes that irreparable prejudice should not be
caused to rights which are the subject of dispute in judicial proceed-
ings” (Passage through the Great Belt (Finland v. Denmark), Provisional
Measures, Order of 29 July 1991, I C.J. Reports 1991, p. 16, para. 16).

55. Without going into details which are at present not needed in the
light of the Order rendered by the Court, the principles underlining the
adoption of the Montreal Convention include the rule aut dedere, aut judi-
care (or aut dedere, aut punire, as the case may be in view of the stage
reached, which has been explained by Judge Guillaume in his course at
the Hague Academy of International Law, RCADI, op. cit., Chap. IV,
pp. 354-371). The rule in question necessarily implies confirmation of the
deeply rooted principle of general international law according to which
no State can be obliged to extradite any persons, particularly its own citi-
zens, in the absence of a treaty explicitly providing for such extradition.
In particular, the provisions of Article 7 read with Article 8 (2) of the
Montreal Convention entitle any Contracting State to refuse extradition in
all cases not subject to an existing extradition treaty. This has been con-
firmed, through approval by more than 130 Contracting States, as a sover-
eign right recognized by general public international law. Accordingly,
under the Montreal Convention, no other State or group of States can be
considered entitled to force another State to extradite, and this applies
particularly with regard to its own citizens when their extradition is prohi-
bited under the State’s domestic legal system.

56. Neither the United Kingdom nor the United States enjoys in this
respect any right other than those enjoyed by all other Contracting States,
including Libya: hence, if either country is faced in the future with a simi-
lar situation where their authorities are requested to extradite, the same
rule of aut dedere, aut judicare will apply. In other words, no irreparable
prejudice could be caused to the conventional rights acquired by the
respective Parties to the present proceedings if the rule aut dedere, aut judi-
care is fully implemented. On the contrary, irreparable prejudice to Libya

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would ensue if it is forced to deliver to another State its own citizens, since
the State’s sovereign right recognized under the Montreal Convention
would then suffer total eclipse and extinction. Such deprival of the State’s
sovereignty could not be remedied at any later stage by the Court, and that
is a sure test of the irreparability of the prejudice. In a nutshell, once a
forced surrender takes place, the present case related to the interpretation
and application of the Montreal Convention will become meaningless,
since there will be no more legal issue to be adjudicated. But this will not
have occurred through due application of law.

57. For all the above-stated considerations, I was and remain of the
opinion that the circumstances of the present case required the indication
of provisional measures, particularly since there was extreme urgency for
the Court to act in order to avoid the coming into force of the sanctions
adopted by the Security Council under certain paragraphs of resolu-
tion 748 (1992), a decision taken by the Security Council in the exercise of
its powers under Chapter VII, hence outside the scope of the legal issue
pending before the Court.

58. With regard to what provisional measures could be considered
appropriate, taking into account all the relevant circumstances of the
present case, it has to be noted that under Article 41 of the Statute of the
Court the determination of the measures to be indicated should establish
a balance between the “respective rights of the parties”. In the exercise of
its powers and in conformity with Article 75 of its Rules the Court may
decide to indicate proprio motu measures “that are in whole or in part
other than those requested, or that ought to be taken or complied with by
the party which has itself made the request”.

59. In this respect, special attention has to be focused on the interesting
precedent established as a result of the Order of January 1968 rendered by
the Chamber of the International Court of Justice formed to deal with the
case concerning the Frontier Dispute (Burkina Faso/Republic of Mali). In
considering the indication proprio motu of provisional measures the
Chamber declared:

“18. Considering that, independently of the requests submitted by
the Parties for the indication of provisional measures, the Court or,
accordingly, the chamber possesses by virtue of Article 41 of the Sta-
tute the power to indicate provisional measures with a view to pre-
venting the aggravation or extension of the dispute whenever it
considers that circumstances so require;

19. Whereas, in particular ... the principal judicial organ of the
United Nations, with a view to the peaceful settlement of a dispute, in
accordance with Article 2, paragraph 3, and Article 33 of the Charter
of the United Nations ... there can be no doubt of the Chamber’s

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power and duty to indicate, if need be, such provisional measures as
may conduce to the due administration of justice; .. (1. CJ. Reports
1986, p. 9.)

60. I am of the opinion that the Court should have acted in that sense,
in the light of the special circumstance of the present case characterized by
the fact that the two Libyans suspected to be the authors of the Lockerbie
massacre could not possibly receive a fair trial, neither in the United
States or in the United Kingdom, nor in Libya.

61. With all my sense of deepest admiration for the judicial system of
the oldest contemporary democracy, the country of Magna Carta (1215)
and the Bill of Rights (1688), I seriously doubt, nevertheless, that the two
Libyan suspects could have a fair trial in the United Kingdom. As justly
observed by Professor Mauro Cappelletti, even in the field of civil litiga-
tion: :

“One is tempted to believe that the proposition that even in
England certain procedural rights and guarantees are, and have long
since, been considered basic to a fair administration of justice, has no
juridical meaning at all.” (Fundamental Guarantees of the Parties in
Civilian Litigation, ed. Mauro Cappelletti and Denis Tallon, Milan,
1973, p. 70.)

62. Concerning criminal proceedings, the world legal community can-
not easily forget that both the European Commission and Court of
Human Rights concluded that the United Kingdom had violated Article 3
of the European Convention on Human Rights by inflicting inhumane
and degrading treatment on prisoners suspected of terrorism, in the sense
of arousing “feelings of fear, anguish and inferiority capable of humiliat-
ing and debauching them and possibly breaking their physical or moral
resistance”; and for using the so-called “five techniques” causing “at least
intense physical and mental suffering as well as leading to acute psychia-
tric disturbance during interrogation” (Judgment of 18 January 1978, case
of Ireland v. The United Kingdom, Publications of the European Court of
Human Rights, Series A, Judgments and Decisions, Vol. 25, pp. 59-94). I
have no doubt at all that the British Government took this condemnation
to heart and has done its utmost to eliminate all such inhumane methods.
Nevertheless, bearing in mind the heinous nature of the crimes imputed to
the Libyan suspects, one may still understand the suspicion in some minds
that fairness might have limits in their respect.

63. In the United States of America an even more disturbing factor
would result from the extraordinary impact of the mass media and the role
it plays in rendering almost impossible the conduct of fair trial by jury, as
witness the public debates aroused as a result of what happened in a num-
ber of recent cases. Such situation is in clear conflict with the requirement
for “a fair and public hearing by an independent and impartial tribunal”

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provided for under Article 10 of the 1948 United Nations Universal Dec-
laration of Human Rights; and equally Article 14, paragraph 1, of the
1966 United Nations Convention on Civil and Political Rights, which
emphasizes the existence of “special circumstance where publicity would
prejudice the interests of justice”.

64. At the same time, in view of the fact that the two Libyan suspects
were or are still working for the Government of their country, and that
their trial could eventually lead to the emergence of a subsequent case of
State international responsibility against Libya, I feel that this factual situa-
tion constitutes sufficient grounds to doubt that the interest of both the
United States and the United Kingdom in ensuring a fair trial could be
adequately safeguarded in case the trial were conducted in Libya. What-
ever may be the merits of the Libyan judicial system under normal circum-
stances, the need for an even-handed and just solution leads me to
consider, within the special context of the present case, that the Libyan
domestic courts could not be the appropriate forum. This conclusion
derives logically and necessarily from the fundamental legal principles,
deeply rooted in the legal traditions of the major systems, particularly
Islamic law (Weeramantry, Islamic Jurisprudence, an International Per-
spective, MacMillan Press, 1988, pp. 76-77 and 79-81), according to which
nemo debet esse judex in propria sua causa.

65. Under the above-mentioned special circumstances of the dispute
between the Parties, and in the exercise of the Court’s inherent power for
the peaceful settlement of disputes, to ensure the proper administration of
justice, and in view of preventing the aggravation and extension of the
dispute, I am of the opinion that the Court could have indicated proprio
motu provisional measures to the effect that:

— Pending a final decision of the Court, the two suspects whose names
are identified in the present proceedings should be placed under the
custody of the governmental authorities in another State that could
ultimately provide a mutually agreed and appropriate forum for their
trial.

— Moreover, the Court could have indicated that the Parties should each
of them ensure that no action of any kind is taken which might aggra-
vate or extend the dispute submitted to the Court or likely to impede
the proper administration of justice.

(Signed) Ahmed Sadek EL-KOSHERI.

113


217 ARBITRAL AWARD OF 23 XII 1906 (JUDGM. 18 xi 60)

ture of the frontier line from the junction of the Poteca or Bodega
with the Guineo or Namasli up to the Portillo de Teotecacinte, which
was the point to which the Mixed Commission had brought the
frontier line from its western boundary point. An examination of
the Award fails to reveal that there is in fact any gap with regard
to the drawing of the frontier line between the junction of the
Poteca or Bodega with the Guineo or Namasli and the Portillo de
Teotecacinte.

In view of the clear directive in the operative clause and the
explanations in support of it in the Award, the Court does not
consider that the Award is incapable of execution by reason of any
omissions, contradictions or obscurities.

For these reasons,

THE Court,

by fourteen votes to one,

finds that the Award made by the King of Spain on 23 December
1906 is valid and binding and that Nicaragua is under an obligation
to give effect to it.

Done in English and in French, the English text being authorita-
tive, at the Peace Palace, The Hague, this eighteenth day of Novem-
ber, one thousand nine hundred and sixty, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Government of the Republic of Honduras and
the Government of the Republic of Nicaragua, respectivelv.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Judge MoRENO QUINTANA makes the following Declaration:

Although I am in agreement with the virtually unanimous
opinion of my colleagues with regard to the decision reached in this
case, I consider that it should have been arrived at by a different
procedural method. As a representative on this Court of a Spanish-
American legal system and confronted with a dispute between two
Spanish-American States, I believe that the legal questions which
are of particular concern to them should have been dealt with in the
first place. I refer in particular to that provided for in Article IT,
paragraph 3, of the Gamez-Bonilla Treaty, which relates to the
29 |
218 ARBITRAL AWARD OF 23 XII 1906 (JUDGM. 18 XI 60)

application by the arbitrator of the principle of wt: possidetis juris
which for more than a century has governed the territorial situation
of the Spanish-American States. By reason of its importance this
principle called for initial attention by the Court since Nicaragua
based a major ground of nullity of the Award of the King of Spain
on the arbitrator’s failure to observe it.

Again, the case essentially involves the validity or invalidity of
an international legal act. The Judgment might therefore with
advantage have established the intrinsic regularity of the Award,
after having analysed its extrinsic regularity, instead of—as it
does—resting the solution of the case in advance upon acquiescence
in the Award by the Parties. This latter situation, in the present
case, in which one of the Parties contends for the nullity of the
Award, is of no more than subsidiary importance. It provides a
procedural argument based on a situation of fact, but it does not
provide an adequate legal ground upon which to base the Judgment.

Furthermore, the features of the case do not put in issue the
good faith of the unsuccessful party. Nicaragua, during the half
century in which the Award was not implemented and in which
the question of its non-implementation was not referred by Hondu-
ras to any international tribunal, may have had reasons, although
ill-founded, for believing in the nullity of that legal act. A number
of attempts by Nicaragua to obtain an arbitral decision to that
effect remained unsuccessful. There was nothing to prevent the
Court from so finding. Honour was due to the State which, together
with the successful party and with Costa Rica, Guatemala and
EI Salvador, gave so splendid an example of devotion to the cause
of law in setting up in 1907 the Central American Court of Justice.
the first example in the world of an international judicial tribunal.
The technical function of the Court is not incompatible with that
of rendering in its judgments peace to the spirit, particularly in the
case of sovereign States. Pax est justitia.

Judge Sir Percy SPENDER appends to the Judgment of the Court
a statement of his Separate Opinion.

M. Urrutia HoLGuix, Judge ad hoc, appends to the Judgment
of the Court a statement of his Dissenting Opinion.

(Initialled) H. K.
(Initialled) G.-C.

30