Non-Corrigé
Uncorrected
International Court Cour internationale
of Justice de Justice
LA HAYE
Publicsitting
held on Tuesday14 ûctober1997, at 10 a.m., at the Peace Palace,
Vice-&esident Weeramantry, ActingPresiden t,presiding
in the case conceming Questionsof Intezpretation and Applicationof the
1971 Montreal Canventionarisingfran the Aerial Incidentat Lockerbie
(LibyanArab Jamahiriyav. UnitedRïngdcun)
vEmziTm RECORD
Audience publique
tenuele mardi 14 octobre1997, à 10 heures,au Palais dela Paix,
sous la présidence deM. Weeramantry,vice-président,
faisantfonctionde président
en 1'affairerelative à des Questionsd'interprétation et d'application
de la conventionde Montréaide 1971 résultantde 1'incidentaériende
Lockerbie (Jamahiriya arabe libyennec. Royaume-Chi)
Bsceptionspréliminaires
camz RENDUment: Vice-PresidentWeeramantryA,cting President
President Schwebel
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Parra-Aranguren
Kcoijmans
Rezek
Judgesad hoc SirRobertJedngs
El-Kosheri
Registrar Valencia-OspinaPrésents : M. Weeramantryv ,ice-présidenftaisantfonction de
président en l'affaire
M. Schwebel, présidentde la Cour
MM. Oda
Bedjaoui
Gui1laurne
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Parra-.Aranguren
Kooijmans
Rezek,juges
Sir RobertJennings
M. El-KosIhe rijugesad hoc
M. Valencia-Ospina g,reffierIhe Gcwernment of the LibyanArab Jamahiriyais represented by:
H. E. Mr. HamedAhmedElhouderi, Ambassador Secretaryof the People's
Officeof the Great SocialisP teople'sLibyan Arab Jamahiriya to
the Netherlands,
as Agent;
Mr. MohamedA. Aljady,
Mr. AbdulhamidRaeid,
as Counsel;
Mr. AbdelrazegEl-Murtadi Suleiman,Professorof PublicInternational
Law, Facultyof Law,Universityof Benghazi,
Mr. Ian Brownlie,C.B.E.,Q.C.,F.B.A.,ChicheleProfessor of Public
International Law,Universityof Oxford,
Mr. Jean Salmon,Professorof Law emeritusU ,niversité libre de
Bruxelles,
Mr. Eric Suy, Professorof International Law,Catholic Universit oyf
Louvain (K.U. Leuven),
Mr. EricDavid,Professor of Law,Université librd ee Bruxelles,
as Counsel and Advocate;
Mr. NicolasAngelet,Principal Assistant,Facultyof Law,Catholic
Universityof Louvain (K.U.Leuven),
Mrs. BarbaraDelcourt, Assistant, Faculto yf Social,Political and
EconomicSciences, Universit librede Bruxelles; ResearchFellow,
Centre ofInternationaL law and Institute of EuropeanStudies,
Universitélibre deBruxelles,
Mr. MohamedAwad,
as Advisers.
The -t of the UnitedKingcian of GreatBritainand
Abrthezn Irelandis represented by:
Sir Franklin BermanK.C.M.G., Q.C., LegalAdviserto the ~oreign
and CommonwealthOffice,
as Agent and Counsel;
The RightHonourable the Lord Hardie Q.C.,The Lord Advocate
for Scotland, -5-
Le Gou-ement de la Jamahiriyaarabe libyennesera représenté par :
S. Exc.M. HamedAhmedElhouderi, ambassadeus r,crétaire du bureau
populairede la Grande Jamahiriyaarabelibyennepopulaire socialiste
aux Pays-Bas,
cornne agent;
M. MohamedA. Aljady,
M. Abdulhamid Raied,
cornne conseils;
M. Abdelrazeg El-Murtadi Suleiman,professeur de droitinternational
public à la facultéde droit de l'universid té Benghazi,
M. IanBrownlie,C.B.E.,Q.C.,F.B.A.,professeur de droitinternational
public,titulaire de la chaireChichele à l'université d'Oxford,
M. JeanSalmon,professeur émérit de droit à l'université de Bruxelles,
M. EricSuy,professeur de droit internatio ànl'Université catholique
de Louvain (K.U. Leuva),
M. EricDavid,professeur de droit à l'université librede Bruxelles,
cme conseilset avocats;
M. NicolasAngelet,premierassistant à la facultéde droitde
l'université catholiqueLd oeuvain(K.U.Leuven),
PhneBarbaraDelcourt,assistante à la faculté des science sociales,
politiques et économiquesde l'université libr ee Bruxelles,
collaboratrics ecientifiqueau Centre dedroitinternationae lt
à l'Institut d'études européennes l d'euniversitélibrede Bruxelles,
M. Mohamed Awad,
cm conseil 1ers.
Le Gowerneinent duRoyame-thii sera représenté par :
Sir Franklin Berman, K.C.M.G.,Q.C.,conseiller juridiqu du Foreign
and Commonwealth Office,
cm agent et conseil;
le très honorable Lor Hdardie,Q.C.,procureur généra l'Ecosse,ProfessorChristopher Greenwood,Professorof InternationalLaw at
the LondonSchml of Economics,
Mr. Daniel Bethlehem,
as Counsel;
Mr. AnthonyAust C.M.G.,
asDeputy Agent;
Mr. PatrickLaydenT.D.,
Mr. NormanMcFaàyen,
Ms Sarah Moore,
Ms SusanHulton,
as Advisers.M. Christopher Greenwood, professeur de droit internationa àlla
LondonSchoolof Economics,
M. DanielBethlehem,
cme consei 1;
M. AnthonyAust,C.M.G.,
cornneagent adjoint ;
M. PatrickLayden, T.D.,
M. NormanMcFadyen,
Mme SarahMoore,
Mne SusanHulton,
canne conseillers. -8-
The ACTING PRESIDENT: Please be seated. The Court will now resume its hearings in
the case concerningQuestionsofInterpretation andApplicationof the1971MontrealConvention
arisingfi.omtheAerial IncidentutLockerbie(LibyanArabJamahiriyav. UnitedKingdom)and1
now cal1upon the Lord Advocate, LordHardie to address the Court.
Mr.KARDIE: Mr. President, Members of the Court.
5.1.Yesterday, Professor Greenwood set out the first limb of the United Kingdom's
preliminaryobjections- namelythatthe Court lacksjurisdiction overtheclaimsbroughtbyLibya,
as there is no dispute between Libya and the Uniteddom which falls within the terms of
Article14of the Montreal Convention. This morning, 1 shall address the second limb of Our-
objections,which isbroaderin character. As the Court'sOrderimadeclear, it isimpossible
to consider the present case withouttaking full account of the effect of the resolutionsadopted by
the Security Council.at is why Mr. Bethlehemtook the Court through the mainprovisionsof
those three resolutions yesterday. Our submission is that resolutions 748and 883are legally
bindingandthey createlegalobligationsforLibyaandtheUnited Kingdomwhicharedeterminative
of any disputeover which the Court might havejurisdiction. In other words, even if therewere a
dispute between Libya and the United Kingdom which falls within the termsof Article 14of the
Montreal Convention,the effect of the resolutions is thatLibya'sclaim is inadmissibleand should
be declared to be so at this stage.
T*
5.2.n its pleadings Libya has sought to portray this issue as one of grand constitutional
principle, as a clashbetweenthejudicial functionand the political,as a challengeto theruleof law
in the international communitMr. President,t is nothing of the kind. The truth, as 1 shall
endeavourto show, is farmore simple. The Charterof the United Nations establishesa systemfor
addressing what was in1945and still is today the biggest problem facing the international
community, namely threats to, and breaches of, the peace. To respond tothose threats, breaches
and acts of aggression,itcreatesthe SecurityCouncil,as a bodywhicheactionto dealwith
such matters at any time. The Council is not placed in a hierarchical relationship with other
United Nations organs. On the contrary, the Charteris based onthe assumptionthat the principalorganscanworkalongsideone another. We submitthatwhat this case callsfor is a proper analysis
of how that can and should bedone, not the confrontational rhetoric of Councilversus Court or
Court versus Council.
5.3. Mr. President,1 propose to address this argument under four broad propositions:
$rst, the structure of the United Nations Charter imposes special responsibilities on the
SecurityCouncilfor the maintenanceof internationalpeaceand security,andthe Charterhas
endowed the Council with the competences necessaryto exercise these responsibilities
effectively (paras.4.33-4.42 of the United Kingdom'sPreliminary Objections),
second, the obligations imposed by the Security Council in this case require Libya to
surrenderthe accusedfor trial in Scotlandor theUnited Statesof America (paras. 4.7-4.12),
third, the obligations imposed by the Security Council resolutions prevail over any other
rights and obligationsof the Parties (para. 4.13)'and
fourth, the Libyansubmissionthatthe Courtcanpronounceupon thesubstantivevalidity of
Security Council resolutions should berejected(paras. 4.19-4.29).
1. The First Proposition: the Structure of the United Nations Charter Imposes Special
Responsibilitieson the Security Council for the Maintenance of InternationalPeace and
Security, and the Charter has Endowed the Council with the CompetencesNecessary to
Exercise those ResponsibilitiesEffectively.
5.4. Mr. President, Members of the Court, my first proposition is that the structure of the
UnitedNations Charterimposesspecialresponsibilitiesonthe SecurityCouncilforthe maintenance
of international peace and security, and that the Charter has endowed the Council with the
competences necessaryto exercise those responsibilities effectively.
5.5. For present purposes, these essential competences which the Charter reservesto the
Security Council can be summarized as follows:
to determine the existence of any threat to the peace, breach of the peace, or act of
aggression;
to decide on the measures that are appropriate for responding to such situations; and
to decidewhether suchrequirementsas may be set out in its decisionshave in fact been met
and, if not, what further measuresought to be employed to give effect to its decisions. - 10-
1shall deal with each of these points in turn.
Determining the Existenceof a Threat to the Peace, a Breachof the Peace or an Act of
Aggression
5.6.MembersoftheCourt,as Mr. Bethlehem showedyesterday,the SecurityCouncil,inboth
resolutions 748 and 883, determined that Libya's conduct, including, in particular, its failure to
respond fully and effectivelyto the requestsin resolution 731constituteda threat to international
peaceand security. In adoptingresolutions 748 and 883,the Council was actingunder Article 39
of the Charter. The terms of Article 39 are very familiar. 1will simply remindthe Court that it
iscastin mandatory language- "[tlhe SecurityCouncilshall determinethe existenceof anythreat
to the peace, breach ofthe peace, or act of aggressionand shall make recommendations,or decide I
what measures shall be taken ... to maintain internationalpeace and security"(emphasis added).
5.7. This responsibility, put in issue in these proceedings by Libya, is a key pillar of the
whole structure of the UnitedNations Charter. Article 39 shouldnot be read in isolation. Indeed,
it cannot be read in isolation from the enumeration in the Charter - which is, after all, the
controlling instrument in this debate - of the functions and powers of the Security Council.
Specifically,1would recalltheterms ofArticle 24, paragraph 1ofthe Charter whichprovides inter
aliathatthe Members ofthe United Nations"conferonthe SecurityCouncilprimary responsibility
for the maintenance of internationalpeace andsecurity".
5.8. The essence ofthe questionnowbeforethe Court is whether,oncethe Councilhasacted iirir
underArticle 39, its determinationscan be the subject of substantivereview by this Court. There
isnocorrect "legal"answerto thequestionofwhether internationalpeaceandsecurityisthreatened
by a particular set of circumstances. The Security Council's assessment under Article 39 is
necessarily an act of discretion. Within the scheme of the Charter, it is a matter for the
Security Council alone. There are no "legal" criteria by which such a determination can be
assessed. It follows, furthermore, from the absence of any legal yardstick for assessingsuch
matters,that any assessmentof such matters by some other body - such as this Court - would
necessarily entai1a substitution by that body of an alternative appreciation ofthe issues. 5.9. The duty of the Security Council, andthe SecurityCouncil alone, to determinewhether
there is a threat to the peace, was aatteryou addressed,Mr. President, inyour dissentingopinion
appended to the Order on Provisional Measures in this case in April 1992 in the following terms
which are reported at page 66:
"[Tlhe determination underArticle 39of the existenceof anythreat to the peace,
breach of the peace or act of aggression, is one entirely within the discretion of the
Council. It would appear that the Council and no other is the judge of the existence
of the state of affairs which brings ChapterVI1 into operation."
Our concem isthat Libya'sinvitation tothe Court to reviewthe substance ofthe resolutions in issue
in this case amounts, in effect, to an invitation to the Court to substitute its own judgment on the
matters in question for that of the Council. That is not the scheme of the Charter. To adopt again
the language of Judge Lachs in his separateopinion in his Provisional Measures phase of this case:
"[olne may ... legitimately suppose that the intention of the founders was not to
encourage blinkered parallelism of fiinctions [as between the Council and the Court]
but a fruitfil interaction". (Orderof 14 April 1992,I.C.J Reports 1992,p. 3 at p. 26)
What Libya is asking of the Court could not be described as "fniitful interaction".
5.10.Libya challenges the Courtto declare itselfthe ultimate arbiterofthe correctnessof any
decision of the Security Council. It is "blinkered parallelism" of the most extreme kind. If such
a principle were ever to be admitted, it would hang a sword of Damocles over every decision of
the Security Council. The Security Council's intended role under Chapter VI1would be rendered
impossible if the Article 39 determination could itself be the subject matter of litigation.
5.11. Although 1make much of this point, 1do not, Members of the Court, anticipate that
this will be an issue of great controversy when you come to deliberate on this case. The Court has
already, in the context of its Opinion in the Northern Cameroons Case (1C.J Reports 1963,p. 15
at p .32), indicated that it is not prepared to go behind decisions of the General Assembly acting
within its competence. This must be true of the Security Council, afortiori.
Deciding on Measures that are Appropriate for Respondingto Determinationsof Threats
to the Peace, Breaches of the Peace and Acts of Aggression
5.12. Members of the Court, the sarne considerations that apply in respect of my first
contention on the competencies of the Council also inform an appreciation of the second. This - 12-
contention postulates, as you will recall,that the competence to decide on the measures that are
appropriate for responding to situations determined to constitute a threat to the peace is also a
matter for the Security Council alone.
5.13.The second competence reservedto the Council is to decideon the measuresthat are
an appropriateresponse to a threat to the peace, breachof the peace or an act of aggression. That
competence goes hand in hand with the responsibilityto determine the existence of the threat or
other situation in the first place. This flowsfromthe very languageofArticle 39 andthe structure
of Chapter VI1of the Charter. In the samebreath,Article 39 speaksinterms ofthe responsibility
to determinethe existence of a threatto thepeaceor other situationandthe responsibilityto "make
recommendationsor decide what measuresshall be taken in accordancewith Articles 41 and 42, U
to maintain or restore international peaceand security". The structureof the succeedingArticles
of Chapter VII, as with the title to the Chapter itself, make itlearthat what is contemplatedby
Chapter VI1isthat the Security Council shouldact to counter threatsto the peace, breaches ofthe
peace, and acts of aggression.
5.14. Mr. President, itiswidelyacceptedthat anessentialfeatureofthe Chartersystemisthat
the responsibility to determine the existence of a threat to the peace and the responsibility to
determine what measures are appropriateto meet that threat are inextricably linked. Both are and
both have to be vested in the Security Council.
5.15. There is no foundationin the Charteror in the practice ofthe OrganizationforLibya's
I
propositionthatthere is a powerofjudicial review ofthe measuresorderedby the Council. If such
ajurisdiction had been intended,or even contemplated,by the framers ofthe Charter,there would
have been express provision tothat effect. Thereis no such provision. Conversely, there is much
in the Charter and in the practice of the Organisation to support the proposition that the
determination of measures appropriate to meet a threat to the peace isa matter for the Security
Council alone. Amongst the rneasures which the Council is authorizedto employ is the use of
force. A decision to take such measures would beparticularly ill-suitedfor judicial review.DeterminingWhetherRequirementsin SecurityCouncilDecisions Havebeen Met and,if not,
What Further Measures Ought to be Employed to Give Effect to the Decisions
5.16. The third of the competences reserved to the Security Council is that of deciding
whether the terms of its resolutions have been met. Our contention is that this follows naturally
from the Council's responsibility of determining the existence of the threat to the peace and the
measures to be taken to address that threat. A different approach would be tantamount to giving
the Council powers to act while at the same time precluding it from determining when that action
had achieved its objective. The Court will note that Article 41 gives the Council - in express
terms - the power to decide what measures are needed to give effect to its decisions.
5.17. A good way of approaching this matter, in the present case, is to see what happened
after the adoption of resolution 73 1. As Mr. Bethlehem pointed out yesterday, it was in the light
of Libya's failure to comply with that resolution that the Security Council went on to adopt
resolution 748. As the Japanese Representative said in the debate on resolution 748, "it was
foreseen that the Security Council would be compelled to take further measures if Libya did not
comply with [resolution 73 11". The Court will note that both resolutions 748and 883 indicate in
terms that the sanctions they imposed were for the purpose of securing compliance with the
Council's decisions.
5.18. As we understand it, Mr. President, Libya does not in terms contest that these
discretions are vested in the Security Council and in the Security Council alone, but confusesthis
with an argument as to whether the powers of the Council are or are not "unlimited" ("illimités")
and, more particularly, whether the Council may lay down requirements which are contrary to le
droit en vigueur.
5.19. The more general of these arguments is, we submit, wholly abstract and without
practical consequence. The issue is not whether there are limits on what the Council may do but
who has the power to enforce these limits. The Applicant is simply wrongto assume that, in the
context within which the Security Council has the responsibility to act to maintain international
peace and security, the existence of limits to its authority implies the existence ofjudicial control.
There is simply no room for such an a priori argument in the face of the terms of the Charter, or - 14-
of its negotiating history (documented at para. 4.17 in our Preliminary Objections), or of the
jurisprudence of the Court itself (which is summarized also at paras. 4.23 and 4.24 in our
Preliminary Objections).
5.20. As is implicit in whathavejust said, Ourcase is not that there areno controls on the
actions of the Security Council. There areindeedcontrols. They operate,however,in thepolitical
rather than the legal sphere. One such control is the membershipof the Council which, as our
Preliminary Objections point out, is designed to be representative of the membership of the
United Nations at large. As a result, a wide variety of views is brought to bear on the eventual
decisions of the Council. Anothercontrol isthe partialrotationofthe Council's membership every
year, whichoperatesto muchthe sarneeffect. A third controlisthe responsibilitythat the Council, W
as an organ of the United Nations, owes to the membership of the Organization at large, as is
reflected, for example, in its annual reports to the General Assembly pursuant to Article 24,
paragraph 3, of the Charter.
5.21.These are real controlsbut they are worlds awayfrom the concept of ajudicial control
exercised expostfacto so as to validateor invalidatethe decisions which the Councilhas taken in
the exercise of its special responsibilities. The Applicant pretendsin its response that there is a
differencebetweenthe Court's substitutingits discretion forthat ofthe Councilandthe application
by the Court of "objective criteria"to control the wayward exercise of the Council'sdiscretion.
But theApplicantis unableto Saywhatthese "objectivecriteria"are orwhere theycornefiom. Nor
.rr
is it able to Sayhow ajudgrnent by this Court holding that the Council was wrong, for example,
in decidingthat a particular situationrepresenteda threatto internationalpeaceandsecuritydiffers
in any real sense fiom a findingby the Court that a particular situationdid not represent a threat
to international peace and security. That, in our submission, would be nothing other than a
substitution by the Court of its discretion for that of the Council.
5.22. Mr. President, Members of the Court,the fact that there arepolitical controls should
not obscureeithertheir effectivenessorthe factthat theyoperatewithin a legalfiamework,namely
that laidownbythe Charter; theMembersofthe Councilforthe timebeingareacutelyconscious
of the fact that the Charterconfers on them, not plenary powers, but special ones, for definedpurposes. Libya must face the realitythatthe Membersof the Counciladoptedthe decisionsinthe
three resolutions as a consciousexerciseof the responsibility conferredon them by the Charter.
II. The SecondProposition-the ObligationsImposed bythe SecurityCouncilinthis Case
Require Libya to Surrenderthe Accused for Trial in Scotland or the United States.
5.23. My second propositionis that the obligationsimposedby the SecurityCouncil in this
case require Libya to surrender the accused for trial in Scotlandor the United States.
5.24. TheUnited Kingdomhas invokedthethree resolutionsadoptedbythe Security Council
which bear directly and specificallyonthe presentcase, 731,748,and 883(Anns. 2, 3 and4 to the
United Kingdom's PreliminaryObjections). Mr.Bethlehem took the Court through their tems
yesterday. My submissionisthat theseresolutions require the surrender of the accused for trialin
Scotland or the United States.
5.25. VariousargumentsareadvancedbyLibya in itsMemorialto support its contentionthat
the resolutions do not require surrender. These arguments, which have not been pursuedin the
Libyan response, are dealt with in detail in paragraphs 4.7 to 4.12 of the United Kingdom's
Preliminary Objections,but 1will summarizethem here.
5.26.It is saidfirst, thatresolution731makesreferencetothe "CharteroftheUnitedNations,
and relevant principlesof international law", andtherefore precludes surrender. Thereis nothing
inconsistent withthe principles of international lawin the SecurityCouncil's supporting a request
that a person be surrenderedfor trial. As Judge Oda remarked in his opinion on the Request for
Interim Measures, at page 19:
"[A]Statewhich has jurisdiction in respect of criminalproceedingsagainst any
person who happens to be in a foreign territory is free to request the territorial
sovereign to extradite that person. . ."
It is hard to see how it could be inanyway unlawfulfor the SecurityCouncilto support a request
which was itself lawful.
5.27. It is alsosaid bythe Libyansthat surrendercouldnot havebeen intendedbecausea fair
trial could not be guaranteed in Scotland. 1have dealt with that matter yesterday. In any event,
it is clear that the Security Council simply did not share Libya's viewof this matter. -16-
5.28. The remaining Libyan argumentsas to the requirements ofthe resolutionsarenothing
morethan tributestothe ingenuityof learnedcounselindiscoveringarnbiguitieswherenoneexists.
They are, as 1Say,dealt with in OurPreliminaryObjectionsan1shallnot detainthe Courtfùrther
with them.
5.29. 1 will tum now to the binding nature of the obligations.Unlike the subsequent
resolutions748and 883 whichwere adoptedunder Chapter VII, resolution731 was not. Although
the textdoes not Sayso expressly,the assumptionmust be that this resolutionwas adoptedunder
Chapter VI of the Charter, which empowersthe Security Council,arnong other things, to make
recommendationsfor dealing with situationswhose continuationis deemedlikelyto endangerthe
maintenanceof intemational peace and security. Its importance liesin the broader context ofthe w
Security Council's concem with Lockerbie. Resolution 731 was designed to allow Libya a
reasonableopportunityto respondtothe cal1made on behalfofthe international community;itwas
Libya7sinadequateresponse to these requirementsthat formedthe basis for the SecurityCouncil's
decisionsinresolution 748andin due coursein 883. HadLibya chosenotherwise,hadLibyamade
a "full and effective response" to the requests of the UnitedKingdom, as the Security Council
required of it in resolution 731, matters would without doubt havehad a wholly different aspect
today.
5.30. That, however, is "might-have-been". For the reasons already explained by
Mr. Bethlehem,theCouncilwasnotsatisfiedwith Libya'sresponse: itadoptedresolutions 748and W
883andthere canbe no doubt,forthe reasonsalreadyexplained, thatbothresolutionswereadopted
under Chapter VI1 of the Charter and were intendedby the Council to have the binding force
provided for in Articles 24, 25, 41, 48 and 49 of the Charter. That too is not, as the
United Kingdom understands it, contested by Libya.
5.31. Libya7sonly challengeto the two resolutionsat this level is to argue thatthe process
of their adoption was improper and therefore ineffective; a similar challenge is mounted to
resolution 731. The question of forma1validity of the resolutions was dealt with yesterday by
Mr. Bethlehem. - 17 -
5.32.Leaving questions of forma1validity aside,therefore, in my submissionthere canbe no
doubt that resolutions 748 and 883 are binding decisions: they were adopted by the Council
expressly underChapter VI1oftheCharter,followingexpressdeterminationsthat thecircumstances
constituted a threat to international peace and security, and they specifically declared that the
obligations which they imposed on States were for the purpose of giving effect to the Council's
decisions. Theserequirements weremoreovercast inaprescriptiveform whichmakes itabundantly
clear that the Council's intention,having fulfilled the conditions laid down in Chapter VII, was to
impose binding legal obligations on al1Member States. The resolutions thus fa11unambiguously
within the undertaking by each Member State in Article 25 to "accept and carry out the decisions
of the Security Council in accordancewith the present Charter".
5.33. 1 might mention at this point, Mr. President, that Libya has tried to develop in its
Pleadings an argument that that isnot the end of the story,but that Article 25 only operates forthe
benefit of Security Council decisionswhich are "in accordancewith the . . Charter", and thatthat
in turn implies a review of their substantivecontents. That argument, with respect, is bad both in
grammar and in law. The phrase "in accordance with the present Charter", being an adverbial
phrase, is clearly meant to qualiQ the verbs "accept" and "carryout", but not the noun "decisions".
The point is even clearer in the French text.
5.34. It is clearly the case, therefore, that the better reading in both languages is that
Article 25 addresses itself not to what the Council must do, but to what the Member States are
obliged to do following a decision by the Council. It isthe second paragraph of Article 24which
requires the Council to act in accordancewith the Purposes and Principles of the United Nations.
That is, however, a completely different matter from saying that Article 25 gives every Member
Statethe right to pick and choose which Chapter VI1decisions of the Council to accept, according
to whether that Member State considers them to conform to the Purposes and Principles of the
United Nations or not. The question of the application of Article 25 of the Charter in relation to
resolutions of the SecurityCouncil has of course beenbefore the Court before, inthe contextof the
AdvisoryOpinion of 1971onNarnibia (1 C.J.Reports1971,p. 16). Somecontroversy remainsover
whether the Court was right in that Opinion to Saythat there could be binding decisions of the - 18-
Security Councilunder impliedpowers outsideChapter VI1ofthe Charter. It isclear, however,that
thequestiontheCourt was addressing waswhatwere the consequencesof a resolutionduly adopted
by the SecurityCouncil and not the question of whether Article 25 conferred on the Court a power
to review the substantive contents of such a resolution.
5.35. In my submission, therefore, it is clear thatthese resolutions constitute a binding
obligation upon Libya to surrenderthe two accusedfortrial in Scotlandorthe United States. 1will
now turn to my third proposition, namely the obligations imposed by the Security Council prevail
over any other rights and obligations of the Parties.
III. The Third Proposition - the ObligationsImposed by the Security Council Prevail over
any other Rights and Obligationsof the Parties.
5.36. 1 should preface my remarks on this matter by dealing with a point which has
apparently caused the Applicant some difficulty. Libya has acted before this Court throughout as
if the resolutions were adopted with the purpose of overriding Libya'srights under the Montreal
Convention, but that insinuation distorts both the chronology of Council action and the true nature
of what itwas that the Council did. The Councilwas simply taking appropriate action to deal with
a threat to international peace and security. The Unitedingdom Permanent Representativeto the
United Nations made that very point [S/PV.3033 (Annex 10to the United Kingdom Preliminary
Objections) at p.1041. Again, Mr.Bethlehem dealt with this yesterday.
5.37. Further, the Applicant alleges that the Security Council is bound by any legal r
obligationsalready in forceas between the States involved in any situationwhich is brought before
the Council. The Libyan Pleadings claim this in terms in various places when they Saythat the
Council is not legally empowered to override the 'rights' conferred on Libya by the
Montreal Convention. As Professor Greenwood has shown, the ver- existenceof these 'rights' is
a matter of considerable doubt and contestation - which itself casts doubt on the validity of the
Libyan argument. But, leaving that aspect aside, the argument must surely founder on the rock of
Article 103of the Charter. 1make no apology for quoting Article 103 which provides:
"In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail." - 19-
5.38.1 quotethe Article, not because Members of the Court are unfamiliar with itsterms but
because its whole purpose is called into question by the arguments of the Applicant in this case.
Article 103 is an essential part of the scheme of the Charter. It spells out the obligations of
Member States to recognize the superior rule of international law whichthe Charter was intended
to embody. In Article 24, Meniber States confer uponthe Security Council primary responsibility
for the maintenance of international peace and security. InArticle 25 the Member States agree to
accept and cany out the decisions of the Security Council. Chapter VI1gives the Council powers
of decision extending even to the use of armed force. Againstthis background,Article 103simply
completesthe pictureandsays intermsthat, inappropriate circumstances,thebilateralarrangements
ofMember Statesmust give way to the greater good of preserving peace. TheArticle cannotmean
that the Council's freedom of action is constrained by alleged treaty rightsof one party; the
provision means, in fact, quite the opposite.
5.39. It remains only to note that both the sense andthe literal terms of Article 103apply its
effect to binding decisions of the SecurityCouncil as well asto the provisions of the Charter itself.
The syllogism is simple: Member States are under a legalobligation to "accept and cany out" the
binding decisionsof the Council; that obligation is an "obligation under the Charter"; therefore
that obligation prevails over "Member Statesobligations under any other international agreement".
The French text is once again if anything even clearer than the English text in this regard. The
obvious conclusion, already implicit in the reasoning in the Court's Advisory Opinion in the
Namibia case (I.C.J. Reports ,1971,p. 16), is clearly reflected by the Order of the Court of
14April 1992 (1C.J: Reports 1992, p. 3; see also paras. 4.62-4.64 of the United Kingdom's
Preliminary Objections), refusingthe applicationforprovisional measuresinthe present case. Even
the Members ofthe Court who dissented from that decisionnonetheless emphasized the importance
of Article 103 in relation to decisions under Article 25.
5.40. Mr. President, Members of the Court, 1 will now deal with the fourth part of my
argument this morning, that the Libyan submission that the Court can pronounce upon the
substantive validity of the resolutions in issue should be rejected.IV. The Fourth Proposition- The LibyanSubmission thatthe Courtcan Pronounceupon
the SubstantiveValidityof these resolutionsshould be Rejected.
5.41. Libya has couched this question in terms of an abstract and general principle. The
United Kingdom has not seen it in that light but, in deferenceto the argumentspresentedby Our
opponents, 1 will address the matter first on that basis before dealing briefly, with Libya's
substantive objectionsto the validity of resolutions 748 and 883. 1would like however to start,
with a preliminary point.
5.42. TheLibyanresponse - at paragraphs 3.18 and 3.28 - makes much of the argument
that the United Kingdom "has not been able to produce one single legal text" in support of its
contention that decisionsby the SecurityCouncilare not opento substantivereview bythis Court.
9
The Court will in fact find the authoritiescited by the UnitedKingdom at paragraphs 4.17to 4.24
of OurPreliminary Objections. Moreover, it is not the United Kingdom which is advancing the
non-reviewabilityof Security Council decisionsas a substantiveargumentin its favour. What the
United Kingdom did was to raise - as it was obliged to do especially in the light of the Court's
Decision on the Application for Provisional Measures - the effect of the Security Council
resolutions as a matter affecting the admissibility of theLibyan claims.
5.43. 1will now address the question of a general competencein this Court to review the
substantive validity of decisions of the SecurityCouncil. The United Kingdom'sargumenton the
particular nature of the Securiv Council'spowers is set out in Ourobjections (part 4.IV of the
'CI
United Kingdom's Preliminary Objections).1would merely like to single out one or two aspects
to which 1draw the Court's attention this morning.
5.44. The first is that the question has two aspects,jurisdiction and competence. Although
linked, these two aspects are not identical: competence goes to whether the Court is, under the
system ofthe UnitedNations Charter,endowedwith a powerto review, or "contrôler"the legality
of decisions by the Security Council; jurisdiction on the other hand goes to whether, even ifthe
Court had such a power, it could be exercisedas an incidentalmatter in contentious proceedings
brought under a compromissory clauselikeArticle 14,paragraph 1of the MontrealConvention. - 21 -
The distinction between competence and jurisdiction is not mere formalism; there is for
example, as paragraphs 4.19 to 4.22 of Our Preliminary Objections point out, a fundamental
qualitativedifferencebetween a requestbythe Council itself to the Court withinthe frameworkof
the advisory procedure for an opinionas to the extent of the Council'spowers, and the claimthat
the Court may exercise a power ofjudicial reviewas a purely incidental matter in the course of
determininga bilateraldisputebetween two States. Thejurisdictionalaspects ofthis questionwere
dealt with by Professor Greenwood yesterday.
5.45. Turning to the question of competence,therefore, let me draw the Court'sspecifîc
attention to the clear indicationsthe Charter itself gives. Theprimary responsibility imposed on
the SecurityCouncilfor the maintenance of international peaceand security was notconferredfor
its own sake. It was conferred "[iln order to ensure prompt and effective action by the United
Nations"; thoseare the preciseopening wordsof Article 24. Article28 providesthat the Security
Council mustbe "so organized as to be able to function continuously". Together these constitute
the clearest recognition that, in the minds of theiamers of the Charter, "effective"action might
well have to be "immediate"; and that thatjudgement must rest in the hands of the Council. It
would not be consistent with the evident intentionof the Charter, giventhe central part that the
responsibilities of the Security Council were intended to play in achieving the Purposes and
Principles of the United Nations, that the Council should be prevented fiom or delayed in the
exercise of its responsibilities.
5.46. If the Conference which drewup the United Nations Charter had intendedto enable
States to challengethe substance of Security Councilresolutions addressed to them, it might be
thought that it would have made provision accordingly. As OurPreliminary Objections show,
Belgium did propose to the Conference at San Francisco in 1945 that:
"Any State, party to a dispute beforethe Security Council,shall have the right
to asktheInternationalCourt ofJusticewhether a recommendationor a decisionmade
by the Councilor proposedin it infiingeson itsessentialrights. If the Court considers
that suchrights havebeen disregardedor arethreatened,it is forthe Councileitherto
reconsiderthe question or to refer the disputeto the Assemblyfor decision." (United
Nations Conference on International Organization Documents(UNCIO), Vol. 3,
Docs. 335, 336.) - 22 -
The limitednature of the Belgian proposa1is clear from its terms, as is the fact that it would not
have provided the remedy which Libya seeks before you today. The proposal was in any event
withdrawn,anda subsequentBelgianproposa1toestablishaCommitteeonLegalProblemswasalso
rejected. The clear viewwas that the Charter requirements,the ability of the major organs to ask
for advisory opinions, and the entitlement of Statesto resolve their differences before this Court,
provided sufficient guarantees of protection of sovereignrights by reference to international law
(UNCIO, Vol. 13, Doc. 843 (IVl2/37), p. 645 and Doc. 933 (IV12142(2)), pp. 709-710).
5.47. It is not, however, necessary to rely on the travaux préparatoires to dismiss this
propositionas unsound. If the frarnersof the Charter had intendedto confer on the Court a power
3
to reviewthe substanceof SecurityCouncilresolutionsit is inconceivablethatthey wouldnot have
provided it specifically. In the face of the evidence of the consideration of the matter which we
derive fromthe travawcpréparatoires, and in the notable absence ofsuch provisionon the face of
theCharter,theCourt isbeingaskedto assume first,that itcansomehowinferthe existence ofsuch
a power and secondly, thatthe attributes of that power are to be those which happen to suit the
Libyan submissions in this case. Nor does it help the argument to claim, without fùrther
demonstration,that such a power is "part of the normal exercise of the judicial function". With
respect, that simply begs the question.
5.48. Libya has raised in its Memorial an argumentas to the supposed "invalidity" or
"inopposability"of the resolutions of the Security Council. It has claimed that the Court has the w'
power to setthese resolutions aside on that particular ground. It is therefore for Libya, not the
United Kingdom,to producethe authority for this competence,for which there is no precedent in
the jurisprudence of this Court (or its predecessor) or in the practice of the United Nations
Organization (or its predecessor) in the 75 years of their existence. Libya has simplyrelied on
concepts drawn from the administrative law of certain legal systems ("excès depouvoir",
"détournementde pouvoir"). Ithas not even attempted to show that, assuming that these legal
conceptsexist at al1in international law, theyapply to the law of the United Nations Charter and,
more specifically,to the exerciseby the SecurityCouncilof its specialpowersfor themaintenance
of international peace and security. It is not the case thatvery legal system has developed a - 23 -
conceptofjudicial review ofthe acts of al1politicalorgans, and manifestlynotthe casethat al1such
conceptsas have been developed display the samefeatures. Nor areanalogieswith municipal legal
systems relevant here, given the special characteristics of the Charter system.
5.49. It is for Libya to demonstrate to your satisfaction the legal authority for the wholly
novel propositions it asks this Court to accept and act upon. The authorities recited in the Libyan
Memorial are al1extrapolations from decisions on international administrative law, in the very
limitedand restrictive sense that the tenn is applicable,for example,to the interna1legal regulation
of an internationalorganization. It concerns suchmatters asthe employrnentof Secretariatstaff or
the relationship between different organs in matters like admission to membership. Thus,
Dr.Amerasinghe,as the verytitle of his work indicates, (TheLawoftheInternationalCivilService
as Applied by InternationalAdministrativeTribunals(1988)) is writing about the legal status of
international civil servants; and Professor Fawcett is considering whether it would be lawful for
the General Assembly, in deciding on the admission of new Member States, to take into account
considerations other than those expressly listed in the Charter ("Détournemend te Pouvoir by
International Organizations", 33 BYIL(1957) 31 1 at 316). None of this has any bearing on the
special powers conferred on the Security Council for the maintenance of international peace and
security.
5.50. The only other authority mentioned by Libya is the decision in the Tadiccase by the
Appeals Chamberof the International Criminal Tribunal forthe formerYugoslavia (105 ILR453).
TheApplicantclaimsthat this case is goodauthorityfor the existenceof a power ofjudicial review.
1will not dwell on the question at length, but will merely list the factors which, in Oursubmission,
distinguish thatdecision from this case. First, the Tadic case went to the whole legitimacy of the
creationof the Tribunal, as a subsidiary organ of the SecurityCouncil. Given the particular nature
of the Tribunal as a judicial institution with extensive powers over the rights and liberty of
individuals,the challengeto the very basis of itsjurisdiction had clearlyto be dealt with. TheTrial
Chamber did so on the basis that it was not itself endowed with the legal competence to pass
judgment on the Security Council's power to set up a Tribunal; the Appeals Charnber on the
contrary held thatthe SecurityCouncil must be deemed to have that power. It is not for meto state -24 -
a view as to which was the better approach. 1note simplythat no such issuearises in the present
case. There is no argument beforeus now as to whether the InternationalCourt of Justice was
properly created,or asto whether it hasjurisdiction over Statesin accordancewith the Charterand
itsown Statute. Secondly,theInternationalCriminalTribunalwasexaminingthe legalityof itsown
establishment solely for the purpose of ascertaining its own "primary"jurisdiction over the case
before it. The AppealsChamber in its decision explicitly disclaimed any more general power to
review the acts of the SecurityCouncil. Thirdly,the issue in the Tadiccase went tothe extentof
the Security Council's powers(was it empowered to set up a judicial tribunal with compulsory
powers over individuals?) not to the manner of their exercise. With al1 due respect to the
Applicants in this case, their challenge is not to whether the SecurityCouncil had the power to 1
adoptthe three resolutionsbutto the way inwhich it choseto exercisethat admittedpowerinthese
particular circumstances. It is my submissionthat this aspectof the Tadicdecisionhas no bearing
on the present case.
5.51.Mr. President,areviewfunction,ofwhatever itscontext,necessarilytakesontheaspect
of proceedings against the Council (whichwould certainly be true in the civil law systemfor an
action for excès depouvoir or détournemend tepouvoir). However is the SecurityCouncil,whose
decisions are ex hypothesiunder attack, to be represented ia bilateral dispute? Who would be
entitled to appear andto interveneon itsehalfl Who would bethe partiesin review proceedings
carriedout incidentallyinthe courseofadjudginga bilateraldispute? Further,who wouldbebound
7
by the judgment? The interests of many others apart from the bilateralparties themselveswould
be directlyaffected by any decisionwhich mightbe made by the Court. Are they to be heard and,
if so, how?
5.52. 1would liketo developthis point a little further,and discussthe effect of any adverse
pronouncementby theCourtonthe validity of a SecurityCouncilresolution. The United Kingdom
has already drawn attention to the serious adverse effect on legal certainty if Security Council
resolutionswere to be openedto legal challengeat any time after adoption(paras.4.26to 4.37 of
the Preliminary Objections). The Applicantcannot simply evade the questionof what the effects
would be on the international legalorder if a power of review ofthe 'vaiidity'of Security Council - 25 -
decisionswere tobe admitted. 1sthe exerciseof the Council'spowersto be fiozen until any legal
challengehas beendisposedof? Or is their implementationtobe postponed? If so,for how long?
What wouldbe the consequence if the issue had to await the chanceof a bilateral dispute arising
aliunde- at whatever later 1:imethat might be? Suppose - to take a not wholly fanciful
example- therehadbeen inforcein 1990a Treatyof FriendshipandCommercebetween Iraq and
Kuwait containing a compromissory clause. Would the SecurityCouncil's responseto the Iraqi
invasionand occupationof Kuwaithavehadto be put asideuntilthis Courthad beenableto decide
on a request by Iraqwhether the economic sanctions were compatiblewith the commerce clauses
in the Treaty? Further,if this Court has a powerto review whatthe Councilhas done,would that
include a power to review action which is contemplated by the Council? If the Applicant's
submissionis correct notmuch wouldremainofthe SecurityCouncil's"primaryresponsibility" for
the maintenance of international peace and security.
5.53.1 will nowturn, Mr. President, to the individualchallengesmade by Libyato the bona
$des of resolutions748and 883. 1,of course, haveno authorityto speakforthe SecurityCouncil.
It is, a1have alreadyremarked, oneof the peculiarities ofthe Applicant'spositionthat it attempts
to attackthe validityofthe actionsof a bodywhich cannotbe representedbeforethis Courtin these
proceedings. But the United Kingdom cannot pass over without comment the aspersions Libya
castsonthemotivationor intentionsof theseresolutions- or,to bemoreprecise,onthe collective
motivationsor intentionsof the Members of the Security Council in adopting these resolutions.
5.54. This requires me to touch briefly on the insinuations underlying the claims in the
Libyanresponsethat resolutions 748 and883constitute, altematively,amanifest excèsdepouvoir
or détournemend t e pouvoir. 1do this without of course concedingthat these concepts or their
consequences exist in the law of the Charter, but simply to show that there is no basis for the
criticisms which our opponents seek to cast on the Security Council.
5.55. The attempt by our opponents to apply the concepts of excès de pouvoir or
détournemend t e pouvoir rests on a threefold allegation: that resolutions 748and 883 were not
based on the intrinsicfacts of the case; that they looked- illegitimately- to the past and not
to the future; and furtherly that the rightto determine a threatto internationalpeace and security -26 -
was abused simplyto open thedoorto the exerciseof compulsory powersunderChapterVI1of the
United Nations Charter. 1would like to look at these allegations briefly in order to demonstrate
that, likethe restof the Applicant'scase inthese proceedings, theyal1rest onthe samefindamental
misunderstandingof the nature of the SecurityCouncil's decisionswith whichwe are concemed.
5.56.Mr. President, thefirsttwo partsof this three-part allegationgo back onceagain to the
mistaken appreciationthat whatthe SecurityCouncil was dealing with in resolutions731, 748and
883 was the Lockerbie incident and nothing but that. 1have already describedto you however
yesterday, that the United Kingdom'sapproach to the Council, in the light of its criminal
investigation of the case and of the unsatisfactory Libyan response to the requests by the
d
United Kingdom,France and the United States of America, wasvery clearly made in the broader
context of Libya's demonstratedpast record as a sponsorand supporter of internationalterrorism.
5.57.Thereis everyindicationfi-omthe debatesandin thetexts ofthe resolutionsthemselves
that this is exactlythe way in which the Membersof the Security Council as a whole approached
the matter. Mr. Bethlehem again dealt with that in somedetail yesterday. It seemsclear that, so
far asthe SecurityCouncilwasconcerned,the result ofthe criminal investigation intotheLockerbie
incident was the "last straw that brokethe camel's back".
5.58. It follows that the whole of the substantial piece consistingof 12pages (193-205) of
the Libyan Memorial and 11pages (83-94) of the response is quite beside the point. It seems to
us that Ouropponents in effect concede this at page 92 of the response when they accept that w
"l'actiondans I'aflairede Lockerbieviserait, selonle Conseilàéviter dejùturs actes terroristes".
5.59. To evade this conclusion Ouropponents resort to the allegation that the Council has
been inconsistentand that this inconsistencyinvalidatesthe Council'sstated intentionandthe plain
effectof its decisions. Butthe inconsistencyargumentiswholly withoutfoundation. Itrests inpart
on what can be no more than a suppositionthat the Council would notact in a similar fashion if
comparable cases should arise in the future.
5.60.Howthe Councilmightact in anyfuture casecannot bepredictedinamechanisticway.
Its responses must be fitted to the circumstances of the individual problems which it faces. It
cannot therefore be accepted thatthe binding decisions of the Security Councilan be subject to - 27 -
an expost facto legal review of their validity on the allegation that one decision in one situation
is inconsistent with another decision in another situation. That is wholly to contradict the
wide-rangingdiscretionwhich the frarnersof the Charter conferred on the SecurityCouncil to deal
with the maintenanceof international peace and security on behalf of the membership as a whole,
as Article 24 indicates. If the Security Council has to account after the event for the consistency
of its decisions, its in a purely political sense, to the membership at large on whosebehalf it acts.
1Iiave dealt with that matter already. It is quite different from a legal review of validity.
5.61. Even on the facts, however, it is demonstrably false to suggest that the Council would
never require any other State to surrender persons accused of crimes for trial in another country.
In subsequentresolutions 1044and 1054adopted by the Council in January and April 1996 at the
request of Ethiopia following an assassination attempt on the President of Egypt in Addis Ababa
the Security Council called on Sudan to extradite to Ethiopia the three persons accused of the
attempted assassination who were sheltering in Sudan. It subsequently determined that Sudan's
failure to comply with this request constituted a threat to international peace and security and
applied certain limited sanctions to Sudan under Chapter VI1of the Charter. The Security Council
resolutions establishing the Yugoslav and Rwanda International Criminal Tribunals both make
provisionfor requiringStates to surrenderindividuals,includingtheir own nationals,for trial - in
those cases by international tribunals (see S/RES/827 (1993), operative para. 4; and SRES1955
(1994), operative para. 2).
5.62. So much for the supposition of inconsistency for the future. There is also in the
Applicant's written Pleadings a bizarre allegation of inconsistency in the past, based upon the fact
that the Council failed to apply sanctions to Israel over the Eichmann affair, or to France and to
Sweden for refusals to extradite .terroristsuspects in 1993and 1995. But what possibleconnection
can there be between those cases and the present one? Whatever the merits of the action taken in
these cases, they are exactly the sort of isolated incident which Libya claims shouldnot give rise
to Security Council sanctions. Thekidnappingof Eichmannwas by definitiona singleand isolated
piece of behaviour,but the Councilconsidered it and denouncedthe Israeliaction andindicatedthat
a future repetition of such conduct could threaten international peace and security. Thereafter, in - 28 -
the light ofIsrael's apologyand of Argentina'sacceptancethat that was sufficient,the matterwas
allowed to rest. As regardsthe more recent Frenchand Swedish cases,the actions taken by those
two Govemments, whether right or wrong, were most certainly not taken in direct defiance of
resolutions of the SecurityCouncil! 1s Libya asking us to acceptthat France and Sweden have
records ofsupport for and involvementin terrorism, and shouldbe seen in the same lightas Libya
in this regard?
5.63.The allegationof inconsistencyisanotherexampleof Libya's failureto recognize that
the decisions of the SecurityCouncil were not directed solely and exclusively at the Lockerbie
incident as an isolated happeningbut addressedthe consequencesof the Lockerbie incidentin the
light of much other material which was both directly and necessarily relevant.
5.64. 1 would next like to deal with the allegation that Article 39 determinations were
misused so as to open the door to the Security Council's compulsory powersunder Chapter VII.
Once again, the United Kingdom is at a loss to know quite what this argument is intended to
convey to the Court. LearnedCounsel for Ouropponentshave had close experienceof the actual
practice of the organs of the UnitedNations in their day-to-day operations. No United Nations
organacts spontaneouslywithoutbeing movedto do so by a Member Stateorgroupof States. The
typical pattern, whether one is talking about a new agenda item or new action under an existing
agenda item, is for one or more Statesto raise an issue andask the organ in question to consider
it. Nor do resolutions arise spontaneously; they have to be proposed by Member States. Itis
expectedthat the State or Statesraisingan issuewith action inmindwill producea draftresolution
for the body to consider. This applies to the Security Councilexactly as it applies to any other
organ, whether it is a plenarybody or a body of limited membership. Whatthe body then does is
to consider the merits of the action it is asked to take, including whether the action would be
properly within its powers,to negotiate on the terms of a precise decision, and then to adopt it, if
necessary by vote. In the case of the Security Council, if what isproposed is compulsory action
underChapter VII, the Councilwould ofcoursebeboundto consider,aswell asthe merits,whether
that would be properly within its powers underthe Charter. This is invariablythe subject of lively
discussion among Membersof Council,both inthe corridorsand in the Council's regular Informal - 29 -
Consultations of the Whole. The process is well documented in recent published studies of how
the Council operates. If at the end of the process the Members of Council agree that Chapter VI1
action is necessary and appropriate, and within the Council's powers under the Charter, then of
course the draft resolution for adoption will includean appropriatedetermination of a threat to the
peace (or breach of the peace or act of aggression). There is nothing in the least mysterious or
unusual about this procedure. Nor can we for the life of us see that there is anything legally
questionable about it.
5.65. Mr. President, before 1 conclude my submissions to the Court, and ask
Sir Franklin Berman to sumup, letme mention afinal, but most important,aspect of this litigation.
5.66. It relates to Article 14of theMontreal Convention on which the Applicant seeks to
found thejurisdiction of the Court, and in particularto the 6-monthtime limit under that provision.
The Courtwill recollect from what Mr. Bethlehem said yesterdaythat it was not until Members of
the Security Council were actively considering what afterwards becarneresolution 731that Libya
first raised the question of the Montreal Convention. After the passage of the resolution, and after
the Secretary-General'sSpecialEnvoy had attempted,unsuccessfully,to persuade Libyato comply
with the requests to which that resolution referred, the Secretary-Generalprepared a report for the
Security Council. On that very same day that that report was presented to the Security Council
Libya filed its Application in the present case and made its Request for Provisional Measures.
5.67. Mr. President,the timing of the LibyanApplication cannotgounremarked. The Court
is well aware that Article 14, paragraph 1, of the Montreal Convention, upon which Libya relies
to foundjurisdiction, provides intea lia that a dispute concemingthe interpretationor application
of the Convention may be referred to this Court only if the parties could not settle it through
negotiation and thereafter have been unable, within six months, to agree upon the organization of
the arbitration contemplated by that provision. Judge Ni drew specialattention to this question in
his separateopinion ontheApplication for ProvisionalMeasures, while implyingthat the time-limit
would not necessarily act as a forma1bar to jurisdiction under the Montreal Convention.
5.68. Mr. President, Members of the Court, let me make it plain that the United Kingdom
does not wish to stand on formalism. We no longerrely onthe non-fulfilment of the condition of -30 -
Article 14,paragraph 1,to oust the jurisdiction of this Court. That does not mean, however,that
Libya's manifest and deliberate failureto observe the time-limits under the Montreal Convention
has lost its relevance.uitethe contrary.At a timewhenthe SecurityCouncilwas activelyseized
of the matter and was bound, in the light of the Secretary-General's report of Libya's
non-compliance with its earlier resolution, toconsider what fûrther measures might be taken to
compel such compliance, Libya consciously moved to seize the Court prematurely. It is that
premature seisin of the Court which now formsthe basis of Libya's pleathat the SecurityCouncil
was wheeled into action to forestall theCourt. The opposite is true. What happenedin 1992was
a scarcely-veiled attemptbyLibyato usethe Courtto fmstrate the normal operationof the scheme
of the United Nations Charter by seeking Provisional Measuresto block further considerationby J
the Security Council of a draft resolution alreadybefore it. The ploy failed then, and we are left
with its aftermath five and-a-half yearslater, dressed up now as an argument that the Court may
overturn the decisions of the Council expostfacto.
5.69.Mr.President,Membersofthe Court,1thankyou foryour carefulattentionand1would
now ask that Sir Franklin Berman be allowed to sum up.
The ACTING PRESIDENT: Thankyou, Lord Hardie. 1now cal1on Sir Franlin Bermanto
sum up the United Kingdom'sarguments.
Sir Franklin BERMAN: Mr. President, Membersof the Court, may it please the Court.
1.It is my task now to sumupthe caseforthe UnitedKingdomin supportofour Preliminary
Objections. If 1may remindthe Court, theyare undertwo heads: one going to thejurisdiction of
the Court under Article 14,paragraph 1,of the Montreal Convention; and a fûrther Objectionon
much wider groundsof admissibility,based onthe existence of overriding legalobligationsunder
binding resolutions of the United Nations Security Council.
2.1 will not repeatthedetailed argumentation,butwill endeavourto drawtogetherthethreads
and bring out the points that seem to us to be of most importance.
3. First, however, let mebring the Courtback to what this case isal1about. It is not about
abstract issues of law, though law plays an essential part. It is not a heaven-sentopportunity to - 31 -
provide the writers of text books with challenging new materials on the law of intemational
institutions, though it does provide an opportunity for the Court to restate plainly certain
fundamental principles of the United Nations Charter which are at risk of disappearing fiom view
in a welter of imaginative argument. What this case is about is a human tragedy, a terrorist attack
on a civil airliner in flight which deliberately caused the death of 270 innocent persons, and hit at
the fundamentalrights of internationaltravel, commerce and communication which are a defining
characteristic of Ourmodem world. The case is about uncovering what happened and who was
responsible,and more precisely it is about Ourduty to seeto it that whoever committedthis outrage
is put fairly to trial, so that it can be seen that terrorism is not given refuge, or condoned. The
Security Council,acting onbehalfofthe United Nations membership asawhole, insistson a proper
trial and has laid down requirements as to its venue. We are confident that the Court, too, will
make these objectives its own and, acting as the principaljudicial organof the United Nations, will
lend its authority to achieving them.
4. We are however at a preliminary stage. The Court is not trying the main issue and we
have explained (as we felt bound to do) the reasons why the Court might find itself in
difficulties - not of its own making - in a trial of the main issue. This Court is not a criminal
tribunal, and is not equipped to be a criminal tribunal, and it is assuredly not the place where the
trial of the two accused will be held. So it behoves us al1to avoid if we possibly can any situation
in which the Court's fidelityto itsjudicial callingmight ever come intoconflict with the needs and
requirements of a criminal trial. These reasons constitute, in Oursubmission, a powerful argument
in favour of the Court's deciding our Preliminary Objections as a preliminary matter before any
question arises of proceeding further into the merits. We consider, in other words, that we are
properly entitledto avail ourselves ofthe provisions of Article 79 of the Court's Rules which in its
current version allows a respondent to raise not only objections to jurisdiction but also to
admissibility or any other objection the decision on which is requested before any further
proceedings on the merits.
5.Mr. President, Membersof the Court,you will by now be veryfarniliarwiththe two heads
of OurPreliminaryObjections. But 1would like to take you one stage further back. 1would like - 32 -
to ask youto look at whatthe Applicant actually seeks fromthe Court. Andin truth it is not al1that
easyto discover quite what Libya is seeking. The principaltext is of coursethe LibyanMemorial
of 1993 and at the end of this MernorialLibya asks for relief of a declaratory character in terms
that are ofien vague and imprecise. Inwhat we take to be the main headsof its Conclusions atthe
end of the Memorial, that is letters (c) and (d), Libya asks for a declaration that the
United Kingdom has violated its legal obligationstowards Libya under certain specified Articles
ofthe MontrealConvention. Exactlywhatthe coreofthose obligationsis isnot however specified
and,asProfessor Greenwoodhas shownyou,onceyouapproach thoseArticlescloseto,theasserted
"obligation"under them begins to melt away,if what you are looking foris obligations laid onthe
sP
United Kingdom. Certainly these Articles, as you would expect of treaty provisions, create
obligations,but is it not true that in realitythe obligationscreated by these Articles in the context
ofthe Lockerbiecase are obligationswhichrest onLibya? Nor indeedisthere any contestationon
Ourpart that Libya hascompliedwith its obligationsunder these Articles. But that is not,in truth,
what Libya's Applicationis really about,as1shall show in a moment when1come to letter (4 of
the Conclusions in the Libyan Memorial.
6.1 must however make itplainthat the absenceof disputeabout Libya's obligationsunder
those Articles specified in the Memorialdoesnot in any sense mean that Libya also has complied
withal1of itsobligationsunderthe MontrealConvention - which incidentallyis what Libyaasks
the Court to declare under letter(b)of the Libyan Conclusions. Judge Schwebel posed some W
questions in the proceedings on the Requestfor ProvisionalMeasureswhich highlight sharplythe
question whethera Statewhose operativeshavethemselvescorneundergravesuspicionofcanying
out a major and deliberate terrorist attack can be said to have complied with its Montreal
Conventionobligationsto preventandcounteraviationterrorism. Butthatisnot the questionLibya
has chosen to bring before the Court. It mightarise on the merits but does not arise now.
7. 1must also make it plain, though,that the United Kingdorndoes not at al1accept that
Libya has complied with al1its obligationsunder the Convention, if only inone glaring respect:
Libya has blatantly and deliberatelyhosento set aside ("écarter')if 1may borrow a phrase)the
requirementsof Article 14,paragraph 1- the settlementof disputesclause. And yetLibyacomes -33 -
to the Court, basing its claimtojurisdiction on that clause, while asking the Court to waive in its
favour the conditions laid down in the clause itself. Libya did not, before seizing the Court,
identifi a dispute with the United Kingdom under the substantive provisions of the Convention;
Libya did not seekto regulate any such "dispute"by bilateral means; Libya did not make a good
faith effort to have anysuch "dispute"settled by arbitration; and Libya paid scant regard to the
six-monthtime-limit expresslylaiddowninthe Article. Members ofthe Courtwillhavetheir own
views as to whether these failures, which were perfectly deliberate, would normally serve of
themselvesto excludethe Court'sjurisdiction. AstheLord Advocate says,wedo not ourselvesrely
on that. Our point is rather the very significant light they throw on the true nature of this case.
And we hope that that light shines clearerand brighterafter Mr. Bethlehem's careful chronology
yesterday of happenings in New York and in The Hague at the time.
8. But this case, says Libya, is about the Montreal Convention. So let us come back to the
Convention. The essenceof Libya's caseisthat it has, under the Convention,an indefeasibleright
to try these two accused, which it may exercise to exclude any possibility of trial elsewhere.
Professor Greenwood showed you thattheir whole case is built on that; if you take it away, the
entire case falls down.
9. And that bringsme to letter (4 of the Conclusions in Libya's Memorial. And here you
find something very strange. You wouldexpect to find a request to the Court to hold that the
United Kingdom is legallyboundto respectLibya's exclusive rightto try the two accused. But no:
what the final Libyan Conclusion says is that the United Kingdom is legally bound to respect
Libya'sright "notto havetheMontrealConventionsetaside by illegalmeanscontrarytotheUnited
Nations Charter etc., etc., etc.". And that, Mr.President,we submit,that is code for "the Security
Council''.
10. So it is to the second head ofOurPreliminary Objections that 1 now tum, in which we
ask the Court to find that, whateverthe positionnderthe Montreal Convention maybe, the point
at issue in this case (namely,the propervenue for the trial of theo accused) is now determined
by decisions of the SecurityCouncilwhichbindboth Parties and haveoverriding force. 1 will not, - 34 -
with your leave, repeat Mr. Bethlehem's point-by-point account of what the Security Council
decided. 1am sure that it is plain enough from his description:
that the decisions of the Council were a careful and considered response to a situation the
Members of the Council assessed to be a threat to international peace and security;
that that situation was in no sense exclusively the Lockerbie case in isolation, but a much
wider range of Libyan international conduct; and
that the Council was acting well within its powers in response to a subject ( namely
international terrorism against civil aviation) that was well within its established field of
concern - and indeed in respect of a particular incident which the Council itself had
-
previously considered. *
11. 1Sayal1of this, Mr. President, not because 1am empowered to speak for the Council,
nor because my Governmentare in any way legally answerable for what the Council decided to do,
but simply to forestall any further attempt by Ouropponents, following the line in their written
pleadings, to insinuate that the Council acted wilfully or capriciously,that the Council set out to
extend the normal reach of its concerns or of its powersjust in order to be able to victimize Libya.
If that had been any part of its intention, why on earth would the Council have given Libya,
through resolution 731, the opportunity to "respond fully and effectively" before proceeding to
enforcement measures? The Council was certainly not under any Cherter obligation to do so.
12.But let me come back to what some see as the issue of the reviewability of the decisions
w
of the SecurityCouncil,though we prefer to cal1itthe respective roles of the Court and the Council
under the Charter. For our part, we do not presuppose that the Charter sets up a conflict between
them, still less do we wish to provoke one. We do not believe that the draftersof the Charter had
any such thought or any such intention.As the Lord Advocate told you indeed,the possibility of
a form of judicial control over the decisions of the Council was directly considered at the San
Francisco Conference and deliberately not adopted- not adopted because it was thought that to
do so would upset the structure they envisaged, or (as we have put it to you today and yesterday)
the Charter system for the maintenance of international peace and security. If that was true then,
we cannot see that introducing it by a side door 50 years later can be any less likely to upset the - 35 -
structure,or the system as it was designed to operate. What the Charter plainly envisages is that
the actions of the Council and the Court, each in its own sphere, should reinforce the aim of
preserving, maintaining and restoring peace and security in the world. That, we are confident, is
what Judge Lachs meant by a "fniitful interaction".
13. So 1have to insist, Mr. President, that this supposed conflict at the submerged core of
the UnitedNations Charter is not part of Ouranalysis; it is Ouropponents who seek to put it before
the Court, not us. And we maintain that their doing so is a direct and logical consequence of the
waythis case was introducedin 1992: first an attempt to use Provisional Measures as an injunction
againstthe SecurityCouncil,now an attemptto getthe Court's retrospectiveapprobation ofLibya's
defiance of decisions taken by the Council more than five years ago. The chronology which Mr.
Bethlehemput before you is so telling, its connection(as the Lord Advocate showed) with Libya's
wilful disregard of what Article 14,paragraph 1,of the Montreal Conventionexpressly lays down
is so compelling, that we put it to the Court that only one conclusion can be drawn.
14.Mr. President, if there ever were to be a worthy case for considering the Court'sjudicial
role in relation to decisions of the Security Council, it is not this one. Of course one can see that
the Court might hesitate and require the clearest demonstration of any allegation that the Security
Council had consciously and deliberately set out to extinguish established treaty rights. But that
is not the case here; not the case twice over - it is not the case here because the rights Libya
claims to have under the Montreal Convention are, as we put it to the Court at the Provisional
Measuresphase, illusory,and it is not the case here because what the SecurityCouncil decidedwas
the normal exercise of its responsibility under the Charter to determine what measures were anapt
responseto a threat to international peace and security.1refer the Court to Professor Greenwood's
analysis of Ouropponents' wholly misleading claims under the Montreal Convention and to Lord
Hardie's and Mr. Bethlehem's analysis of Ouropponents' wholly misleading accounts of what the
Council decided and why. Sothe Court need give no credence to the plea that Libya is the holder
of cleariy established treaty rights which have been unjustly taken away from it.
15. 1 will not Say any more about the general and abstract issue of the reviewability of
resolutionsof the SecurityCouncil. TheLord Advocatehas shownyou that this thesis, seductively - 36 -
dangled before the Court by Ouropponents, bristles with legaldifficultie which Ouropponents
simply ignore by their silence. He has also shownyou, however,that the omissionof a power of
judicial reviewfrom the Charterwas not the result of someaccidental oversight,but that that does
not mean that the Membersof the Council for the time being are under no Charter control or are
out of control.
16.Mr. President,Membersof the Court,we havedoneOurlevelbestto explain,throughthe
most authentic voice possible, that of the Lord Advocate himself, what the Scottish criminal
procedure is,and the manifoldguarantees it embodiesforthe protectionofjustice and of the rights
of the accused. And the Lord Advocate has indicated,again with care and precision,the special -
arrangements the competentauthorities are willing to make to recognize andmeet the legitimate d
international interest in the process. The Security Council entertainedno doubts that the accused
would get a fair trial in Scotland. Nor should this Court.
17.Mr. President,Members of the Court, that concludesOuropening case and 1thank you
for your attention.
The ACTING PRESIDENT: Thank you Sir Franklin. The Court will now adjoum for
15minutes and will resume to hear the submissionsof the United States of America.
TheCourtrose at 11.25 a.m.
Audience publique tenue le mardi 14 octobre 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Weeramantry, vice-président, faisant fonction de président