Audience publique tenue le lundi 20 octobre 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Weeramantry, vice-président, faisant fonction de président

Document Number
088-19971020-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
1997/22
Date of the Document
Bilingual Document File
Bilingual Content

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~nternationaicourt 1 '-z internationale
of Justice de Justice
--, '----m..

THE- LA HAYE

Public sitting

held on Munday 20 ûctober1997, at 10 a.m., at the Peace Palace,

Vice-&sident Weeramantry, Acting President,presirliag

in the case concerningQuestionsof ïnterpretationand Applicationof the
1971Montreal Camrrs?tian arising frrnntheAerial incidentat Lockerbie
(Libyan Arab Jamahiriyav. ünited Kingtïm)

PreliminaryObjections

VWBATlM RECORD

ANNEE1997

Audiencepublique

tenue le lundi20 octobre1997, à 10 heures,au Palaisde la Paix,

sous la présidencede M. Weenmantry, vice-président,
faisant fonction de président

en l'affairerelative à des Questionsd'interprétation et d'application
de la canmtian de Montréal de 1971 résultantde 1'incidentaérien de
Lockerbie (Jamahiriyaarabe libp=nnec. Royaume-Chi)

Exceptionspréliminaires

CCBrlPTRENDUPresent: Vice-President Weeramantry, Act President
President Schwebel
Judges Cda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Rezek
Judgesad hoc SirRobertJennings
El-Kosheri

Registrar Valencia-OspinaPrésents: M. Weeramantryv,ice-présidenftaisantfonction de
présidenten l'affaire
M. Schwebel,présidentde la Cour
MM. Oda
Bedjaoui

Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Rezek,juges
Sir RobertJennings
M. El-Kosheri,juges ad hoc

M. Valencia-Ospina greffierThe -t of theLibyan Arab Jamahiriyais representedby:

H. E. Mr. HamedAhmedElhouderi, Ambassador, Secretaryof the People's

Officeof the GreatSocialistPeople'sLibyanArab Jamahiriya to
the Netherlands,

as Agent;

Mr. Mohamed A. Aljady,

Mr. AbdulhamidRaeid,

as Counsel;

Mr. Abdelrazeg El-Murtadi SuleimP an,fessorof PublicInternational
Law,Facultyof Law,University of Benghazi,

Mr. Ian Brownlie,C.B.E.,Q.C.,F.B.A.,ChicheleProfessor of Public
International Law,University of Oxford,

Mr. JeanSalmon,Professor of Law emeritus,Université librd ee
Bruxelles,

Mr. EricSuy, Professor of International Law, Catholic Universit of

Louvain (K.U. Leuven),

Mr. EricDavid,Professor of Law,Universitélibre deBruxelles,

as Counseland Advocates;

Mr. NicolasAngelet,Principal Assistant,Facultyof Law, Catholic
Universityof Louvain (K.U.Leuven),

Mrs. Barbara Delcourt,Assistant, Faculto yf Social,Political and
EconomicSciences,Universitélibrede Bruxelles; Research Fellow,
Centreof International Law andInstituteof EuropeanStudies,

Université libre d Bruxelles,

Mr. MohamedAwad,

as Advisers.

The Governnaentof the UnitedKingdan of GreatBritain and
Abrthern Irelandis representedby:

Sir FranklinBermanK.C.M.G.,
Q.C., LegalAdviserto the Foreign
and CommonwealthOffice,

as Agentand Counsel;

The RightHonourablethe LordHardieQ.C., The Lord Advocate
for Scotland,Le Gomernent de la Jamahiriya arabe libyenne sera représenté par :

S. Exc. M. HarnedAhrnedElhouderi, ambassadeur secrétaire du bureau
populairede la Grande Jamahiriya arabelibyennepopulairesocialiste
aux Pays-Bas,

carme agent;

M. Mohamed A. Aljady,

M. AbdulhamidRaied,

canne conseils;

M. AbdelrazegEl-Murtadi Suleiman, professeurde droitinternational
public à la facultéde droit del'université de Benghazi,

M. Ian Brownlie,C.B. E., Q.C., F.B.A., professeurde droitinternational
public,titulaire de la chaireChichele à l'université d'Oxford,

M. Jean Salmon, professeué rméritede droit à l'université de Bruxelles,

M. Eric Suy,professeur de droitinternational à l'Université catholique
de Louvain (K.U.Leuven) ,

M. Eric David,professeurde droit à l'Université libre deBruxelles,

cm conseils et avocats;

M. NicolasAngelet,premierassistant à la facultéde droitde
l'université catholique de Louvain (K.U.Leuven) ,

Mme BarbaraDelcourt,assistante à la faculté des sciences sociales,
politiqueset économiques de l'université librd ee Bruxelles,
collaboratrics ecientifique au Centre de droit international et
à l'Institut d'étudeseuropéennes de l'université librd ee Bruxelles,

M. Mohamed Awad,

cm conseil1 ers.

Le Gouvernement du Royaume-Uni sera représenté par :

Sir FranklinBerman,K.C.M.G.,Q.C.,conseiller juridique du Foreign
and Commonwealth Office,

cme agent et conseil;

le très honorableLordHardie, Q.C., procureurgénéraldlEcosse,ProfessorChristopher Greenwood,Barrister,Professor of International

Law at the LondonSchwl of Economics,

Mr. Daniel Bethlehem, Barriste LondonSchoolof Econmics,

as Counsel;

Mr. AnthonyAust C.M.G.,

as Deputy Agen;

Mr. PatrickLayden T.D.,

Mr. NormanMcFadyen,

Ms SarahMoore,

Ms Swan Hulton,

as Advisers,

Ms MargaretMcKie,M. ChristopherGreenwood, Barrister,professeur de droitinternational
à la LondonSchoolof Economics,

M. DanielBethlehem, Barrister,LondonSchoolof Econcfnics,

ccitrconseils;

M. AnthonyAust,C.M.G.,

cme agent adjoint;

M. Patrick Layden,T.D.,

M. NormanMcFadyen,

Mne SarahMoore,

Mne SusanHulton,

came consei1lers,

Mme MargaretMcKie,

cornnsecrétaire. -8-

TheACTING PRESIDENT: Pleasebe seated. TheCourtmeetstoday to resumeitshearings

in the cases concerning Questions of Interpretation and Application of the 1971

Montreal Conventionarising@om the Aerial Incidentut Lockerbie (Libyan Arab Jamahiriya v.

UnitedKingdom)and (LibyanArab Jamahiriyav. United States ofAmerica). The first round of

hearings was completed iast week and todaywe commencethe second round. The Court willfirst

hear the oral submissions of the United Kingdom and thereafter those of the United States.

Judge Parra-Aranguren is unable to be present during this round of pleadings for reasons which

have been duly explained to me and JudgeKooijmans will also not attend. 1 now cal1upon the

United Kingdom to commence its oral submissions and 1give the floor to Sir Franklin Berman.

1
Sir Franklin BERMAN: Mr. President,Membersofthe Court,may it pleasethe Court. Our

opponents presentedtheir case to the Court on Friday, and on examination it turns out, despite its

rich mixture of law, fact and pure fiction, to be less complexthan might have been thought. The

United Kingdomcan therefore be quite brief inits response. Andthis is what we intendto dothis

morning, confining ourselves as before to the essentials. The Court will wish to note that we

maintain al1ofthearguments inOurwrittenPreliminaryObjections,evenwherethesehavenotbeen

specifically reiterated in these oral proceedings. The purposeof oral proceedingsas we understand

them is, however,to narrow the issues betweenthe Parties and to focusthe attentionof the Court

on what those issues really are. That will be Ourapproach.
w
1 begin therefore by restating the United Kingdom'scase in its essential eleme1do so

with added zest because Ouropponentsdangled beforethe Court on Friday an alternativeversion

of the United Kingdom's casewhich corresponds neither to Ourintentions nor indeedto the way

we have formulated them both in writing and orally. So, if the Court will allow me to be the

authentic interpreter of the United Kingdom'sarguments, they are as follows.

We start from the essential heart of the matter: that a terrorist crime of this magnitude

naturally and inevitably givesise to the demand that its perpetrators be found and put on trial.

Moreover a terrorist crime of this magnitude,directed at internationalcivil aviation, naturallyand

inevitably touches the interests of the internationalcommunity ashole as well as those of the

individual Statesmost directly affected. Libya appearsto acceptthis; we hope so. It is common - 9 -

groundthat any trial must be fair and mustbe seento be fair: fair of courseto the accusedbut fair

also, so we Say,to the interests of the victims and their families, to the States affected and to the

wider international interest.

But that is the point at which the paths diverge. Libya has brought beforethis Court.the

proposition that theMontreal Convention gives Libya the legal right unilaterallyto insistthat the

trial must be held in Libya to the exclusion of al1other venues.

May 1remind the Court that that assertion is the very foundation Stoneof Libya's case? If

youtake awaythe Libyan claimto an exclusiverightto trythe accused,their entirecase fallsdown.

Mr. President,the Courtneed not concem itself withthe political acceptabilityof alternative

Libyan offers oftrial in a third country. Theyarenot of course in any way consistentwith Libya's

insistenceon an exclusive right to try in Libya which underpins its claims before this Court. Nor

is the Court required to consider counsel'sclaim that large numbers of States - some of whom

voted for the Security Council resolutions in question - support Libya's political position.

Whatever these matters may be, they are assuredly not matters that arise under the Montreal

Convention. Libya's attempts tobargainwith the Security Council over the implementation ofits

resolutions is clearly a matter for the Council not the Court.

But 1 return, Mr. President,to the United Kingdom's own case. In their openingargument,

learnedcounsel oppositemisrepresented Ourposition in anumber of respects. Wehave neversaid,

for exarnple, that the resolutions of the Security Council 'Ijustifiedviolations of the Montreal

Convention"or "renderedthat Conventioninapplicable". Wehavenever saidthat, intakingLibya's

support for international terrorism to the Security Council, we "substituted a dispute between the

Counciland Libya for an earlierbilateraldispute"betweenourselvesandLibya aboutthe Montreal

Convention. Nor, despite Professor Brownlie'sconstant repetition of the phrase, have we ever

claimed that the decisions of the Security Council enjoyed an"immunity"fiom thejurisdiction of

the Court; the word appearsnowherein OurPreliminaryObjections- nor indeed,sofar as we are

aware, does it appear in the internationaljurisprudence either.

What we do say$rstly is that the Court can havejurisdiction in this case only in respect of

a dispute which is between the United Kingdom and Libya and which is a dispute about the - 10-

interpretationor application of the MontrealConvention. Linkedto that is oursecond submission,

that itis for Libyato showthat sucha dispute exists,butthat there isnot- and neverhas been -

any such disputebeforethe Court intheseproceedings. Thirdly,we saythat, even iftherehadbeen

such a dispute,the effect of the SecurityCouncilresolutionsis to determinewith overridingforce

what the Parties are required to do, sothat the LibyanApplication is inadmissible.

Those are accordingly Our three submissions. They will be developed succinctly this

morning, the first two by Professor Greenwood and the third by the Lord Advocate. The

Lord Advocatewill also recall some aspects of a trial in Scotland,to dispose of some allegations

made by Ouropponents. Thesethree submissionsrepresentthe true essence of the case beforethe

Court and we invite Ouropponentstoo to confine themselvesto the essential issues.

Before handing over to Professor Greenwood, Mr. President, 1 propose to deal (again

succinctly) with the preliminary nature of OurObjections and the reasons why the Court should

decide them nowwithout further proceedingsonthe merits. Our opponentshave assertedthat they

arenot genuinePreliminaryObjectionswithin the meaningof Article 79ofthe Rules,and1thought

that Professor David came close on Fridayto suggestingthat they were anabuse of the process of

the Court. Presumably he had not read the first paragraph of Article 79 which lays down as a

general mle for al1cases that the time-limitfor makinga preliminaryobjection is that fixed forthe

delivery of the counter-memorial. Perhaps he also failed to notice paragraph 42 of the Court's

Order of April 1992on Interim Measuresin whichthe Court expresslystatedthat its decisionthen r)

leaves unaffected the rights of either Party to submit arguments relating to jurisdiction or other

preliminary questions.

Now,Article 79 ofthe Rules, in its present form,foreseespreliminaryobjectionson grounds

ofjurisdiction, on grounds of admissibility,and adds "or other objectionthe decision upon which

is requested before any proceedings on the merits". "Admissibility" is not defined, but left as a

flexible concept,and the additionofthewordswhich1quoteda momentago showthatthe purpose

was to leavethe Court a broad discretionto disposeof a case before proceedingto the merits, but

naturally only if the Court itself found that the Respondent's request raised a preliminary issue

which could andshould be disposedofas such. Therecan thereforebe no roomfor doubtthat the - 11 -

United Kingdom's two Objections, one on strictlyjurisdictional grounds and the other on wider

grounds of admissibility, are squarely within the scope of the Rule. 1 refer the Court to the

extensive treatment of thematter in Professor Rosenne's book on The Law and Practice of the

InternationalCourt (31ded., Vol. II, Chap. 13). Andthe Court will find the references in the text

we have givento the Registrar. 1may Saythat the references are to the third edition of the book

whose publication only a few days ago will have givenso much pleasureto so many of us in this

courtroomtoday. Mr. President, itrequiresnofurtherestablishmentthata plea thatthe Applicant's

case does not fa11within the jurisdictional clause is by definition a preliminary objection.

Professor Rosenne suggests an even wider definition fromthe practice of the Court under which

most objections of a preliminary character, includingthose of the type of Oursecond Objection,

couldbe classedas "jurisdictional"(ibid., at pp. 852etseq.). We do not ourselves insist uponthis

characterizationin view of the wide scopeoffered bythe remaining languageinparagraph 1ofthe

Rule. The request by the United Kingdom, as Respondent,that the Court decide these objections

beforefùrtherproceedingsonthe merits isbased ongroundsofjurisdiction and admissibilitywhich

suffice to bring them withinArticle 79. It remains onlyto showthat the Court can properly deal

with them as a preliminary matter and that it shoulddo so.

1 do not propose to take any of the Court's time in arguing these propositions in respect of

Ourfirst objection,that which goes to the absence ofjurisdiction under the Montreal Convention.

It is trite law that the Court's contentiousjurisdiction is based on consent, fromwhich it follows

that, as a matter of principle, a respondent State shouldnot be obligedto defend itself before the

Court against complaints over which the Court has no jurisdiction. The United Kingdom's

jurisdictional objection isbased largelyonthe absenceofa relevant "dispute"andthe Courthashad

ample opportunity, in accordancewith its recentjurisprudence in the Genocideand Oil Platforms

cases,to hear argument on the interpretationof the Montreal Conventionsufficient to enable it to

decide on whether a relevant dispute exists or not. There is moreover, in Our submission, a

sufficientelementof uncontestedfactualmaterialalreadybefore the Courtat this preliminarystage

to enable itto relate its provisional interpretationof theMontreal Conventionto the case before it. - 12-

The broader objection as to "admissibility" is based upon the terms and effect of specified

resolutionsof the Security Councilwhich, in Oursubmission,renderthe relief Libya seekswithout

object. The terms of the resolutionsthemselves have been fully argued beforethe Court, as have

the provisions of the United Nations Charter which lend themtheir specific effect on the subject

matter ofthis case. The Court is not in need of any furthermaterialderivingfrom argumentonthe

merits in order to enable it to interpret the decisions of the Security Council or determine their

effects.

We thus maintain that the Court may properly determine both objections as preliminary

questions.

We maintain also, Mr.President, that there are good reasons why the Court should do so. V

This submission goes beyond the general desirability, in the interests of a smooth flow of the

Court's judicialbusiness,of avoidingunnecessarymeritsproceedings likelytobe lengthyandcostly

to both Parties andto the Court. Itependsalso on the considerationswe have alreadyput before

the Court in my opening statement last week whythe handling of evidentiary material in a merits

phase of this case might raise serious problems, both for the Court itself and in relation to the

commonobjectiveofbringingaboutatrial ofthoseaccused ofperpetratingthe Lockerbiebombing.

We reiterate thereal importance of those considerationsas a factor conduciveto disposing of the

case now, if Ourpreliminaryobjectionsare well-foundedas we submitthey are. Beyond that still,

Mr. President, lies a further factor. As we have shown, this case has been tumed into a W

well-publicized challengeto the exerciseby the Security Councilof its Charterresponsibilities. Its

continuationlonger than need be thereforehas a potentiallysubversiveeffectonthe integrityofthe

Charter system. It is, moreover, serving as an excuse for Libya notto confrontthe need once and

foral1tocomplywithwhat the SecurityCouncil,actingastheChartersaysonbehalfof al1member

States,has decided Libya must do. The Court is in a position to make its own contribution to

facilitatingthe trial ofthe accusedbyremovingartificialobstaclesthathavebeenplacedintheway.

For these reasonswe ask the Court, as a responsible exercise of itsjudicial function as the

"principaljudicial organ of the United Nations", to upholdhese Preliminary Objections, and not

tojoin them to the merits as we infer Libya is now asking the Court to do. - 13 -

Mr. President, 1have two further points to make before 1conclude.

The first relates to the motivation behindthe whole attempt by Libya to seize the Court of

this case. 1would like to draw the Court's attention once again to the deep significance of the

precisechronologyof eventspresentedbyMr. Bethlehem lastweek. In particular 1 askyouto note:

Libya's failureto mentionthe Montreal Conventionat al1in its responsesto theUnited Kingdom's

requests for surrender of the two accused; itsfailure to indicate at any time that the letters from

the Libyan investigating magistrate were the invocation of an "obligation" under the

Montreal Convention; the factthat the very first mention ofthe Montreal Convention camenot in

a communicationto the United Kingdom but in oneto ICAO; the factthat the first mention ofthe

Conventioncameafterthe Security Councilwas alreadyinthe processof consideringwhat became

resolution 731; the factthat Libya's so-called requestto the United Kingdomfor arbitrationunder

Article 14cameamere oneweek later,was thevery firstmentionofthe Conventioninthe dealings

betweenthePartiesandmadeno attemptto isolatethetermsofa Conventiondisputebetweenthem;

the fact that Libya's Applicationto the Court followeda mere six weeks later in blatant disregard

of the conditionsunder Article 14, paragraph 1; the fact that that Application was the vehicle to

carry an application for an indication of provisional measures at a time when the Council was

knownto beconsideringfurtheraction; andthe factthat the Applicant admittedinthe hearingson

provisional measures that its purpose was to secure an order which would require the

United Kingdom and the United States to prevent further action in the Council.

Nothing that counsel for Libya have said explainsthese facts or controvertsthem. We thus

maintain Ourassertionthat these entireproceedingswere conceivedof, not in orderto regulateany

supposed "dispute" under the Montreal Convention,but as an attempt to subvertthe operation of

theUnited NationsCharterandthe specialrole conferredby itonthe Security Council. Now,more

than five years after the Council has exercised those responsibilities so as to determine what the

Partiesmust do, the Court is confrontedwith argumentsby which (as 1said lastweek) Libya seeks

the Court's retrospective validation of its defiance of the Security Council.

Finally, Mr. President,Members of the Court, 1have to come back, 1regret,to the question

of the threat to use force and the wholly unwarrantedaccusations made against my Government. - 14 -

If the statements made by counsel in that regard on Friday were intendedas an explanationor an

apology,they fell far short of whatthe circumstancesrequire. Itwillly not do, Mr. President,

to repeat, parrot-fashion,a series of stale allegations,either old or wholly removedfromthis case,

as if the repetition constitutedproof. Nor does it do to offer ambiguouspublic utterancesas proof

of so serious an allegation as an imminentthreat to use force in the face of the observablefacts,

andthe facts are not only the total absenceof the use of force despiteLibya's failureformorethan

fiveyears to fulfilwhat counselcharacterizeas Our"dictatorialdemands". Thefacts resideinwhat

we did. What we did was to refer the issue to the SecurityCouncil and to concentrate Our

diplomacy since then on insisting on the implementationof the decisionsthe Council took. That

isprecisely what the United Nations Charterdemandsof its memberStates. Counselmayperhaps W

vouchsafe to the Court in what way it was illegal. Perhaps he will come before the Court and

allege that the United Kingdom threatened to use force against the other Members of the

Security Councilin orderto compelthem to vote forthe draft resolutions? I1 hopethathe has

some proof. But if he says (as he did on Friday) that the alleged threat of force "is centralto his

case", andthose are counsel's actual words,then we trust that the Court will take due note of that.

Mr. President, that concludes my opening argument. May 1 now, with your leave, invite

Professor Greenwoodto continue with the Montreal Conventionarguments?

The ACTING PRESIDENT: Thankyou, Sir Franklin. 1now give the floor to Professor

w
Greenwood.

Mr. GREENWOOD:

Issues Pertaining to Jurisdiction under theMontreal Convention

Introduction

Mr. President, Members of the Court, may it please the Court.

2.1. As SirFranklinBerman has explained,1shall respond tothe principal argumentsraised

by counsel for Libya regarding the alleged existence of a dispute falling within Article 14,

paragraph 1, of the Montreal Convention. At the end of his submissions on Friday morning,

Professor David summed up Libya's argumentson this point in four propositions: - 15 -

First,that the issuesof the surrenderandtrial of the accusedwere essentiallymatters falling

within the scope of the Montreal Convention;

Secondly,that the right claimed by the United Kingdom to take the matter to the Security

Council did not set aside (écarter)the application of the Convention;

Thirdly,that the treatment of the case by the SecurityCouncil did not transform a dispute

between the United Kingdom and Libya into one betweenthe Security Council and Libya;

Finally,Mr. President,Professor David allegedthatthejurisdiction ofthe Courtalsoextends

to matters "closely connected", as he put it with the dispute under the Convention'.

The Misstatement of the United Kingdom Argument regarding the Effect of Security
Council action upon the "Dispute"

2.2. Mr.President, the last two points are ones of little substance and can conveniently be

cleared out of the way first. Professor David's third argument, that the actions of the

Security Council have not transformed a disputebetween Libyaand the United Kingdom into one

between Libya and the Council, is based upon a misrepresentation of the United Kingdom's

submissions, a misrepresentation in which Libya has persisted from the outset. The

United Kingdom has never argued that the actions of the Council transformed a dispute between

the two States into a dispute between Libya and the Council. That is the false thesis that the

Council acted to "institutionalize" a bilateral dispute and 1 made clear last Monday in my

submissions then that this was no part of the United Kingdom'scase2.

2.3. What the United Kingdom does Say,Mr. President,is that, even if there were a dispute

between the United Kingdom and Libya regardingthe application of the Montreal Convention -

and, of course, Ourprincipal contention is that no such dispute has ever existe- even if there

were such a dispute the decisions of the Security Council render Libya's applicationin respect of

that dispute inadmissible. That is because the Council's decisions are dispositive of the issues

raised by that application. We alsoSaythat in so far as Libya's real complaintis about the effect

of the decisionstaken by the Council - and the oral argumentslast week have shown that this is

'CR97/20, pp. 58-59, para.4.44.

'CR97/16, p. 74, para.4.56. - 16-

indeed at the heart of Libya's case,much as counsel for Libya has triedto hide the fact those

decisions are the responsibility of the Council itself and not that of individual Members ofthe

Council. We made this point both in Ourwritten argument3and in Ouroral submissions last

Monday4. And we note that counsel for Libya did not contest that proposition.

2.4. 1also note, in passing,the misunderstandingat the heart ofProfessor Suy'ssubmission

that the SecurityCouncil resolutions could not affect the "autonomy" ofArticle14, paragraph 1,

of the Montreal Convention. The United Kingdom is not suggesting that the decisions of the

Council somehowsuspendedor set aside Article 14. Theywere plainly not intendedto do so and

there is no need, Mr. President, to borrow fi-omthe law of arbitrationany concept of autonomyto

establish that Article 14remains in effect between the Unitedingdom and Libya. It does; and -

that is precisely the basis on which we, as well as Libya, have been arguing this case. But

Article 14is not autonomous. It depends for its operation upon the existence of a dispute about

the interpretationor application of one of tother provisionsof the MontrealConvention. If the

decisions of the Council render an application regarding the operation ofhose other provisions

inadmissible, then there is nothing on which Article 14, paragraph 1, can bite. As the

United Kingdomhas already said, Mr. President the mere invocationof Article 14doesnot create

a dispute justiciable under that provision5.

TheAttempt to Expand Article 14,Paragraph 1, to CoverAllegedViolationsof OtherRules
of InternationalLaw
'1iii6

2.5. Mr. President,Professor David'sfourthpropositioncanalsobedisposedofquitebriefly,

although for a different reason. The argument that the Court's jurisdiction under Article 14,

paragraph 1,oftheConventionextendsbeyondadisputeconcemingthe interpretationorapplication

of that Convention and embraces alleged violations of other rules of intemational law which he

maintains are closely connected withsuch a dispute is quite simplywrong. It ignoresthe fact that

the foundation of the Court's jurisdiction in contentious cases is the consent of the parties. The

3PreliminaryObjectionsof the United Kin1995)paras. 3.28-3.31.

'CR97/16pp.74-75paras4.57-4.59.

'CR97/16p. 68,para. 4.36. - 17-

needfor a consensual basis for thejurisdiction of the Court is fundamental and it hasimplications

both for the existence and the extent of the Court'sjurisdiction. These implicationswere evident

inthe Court's decisionsinthe recent Genocidecase, inwhichthe Court insistedthat itsjurisdiction,

under a clause similar to Article 14, paragraph 1, of the Montreal Convention, did not extend to

disputesregardingthe applicationoftreaties otherthanthat inwhichthe compromissoryclausewas

located. As was explained in one of the separate opinions:

"The Court can only act in a case if the parties, both applicant and respondent,
have conferredjurisdiction upon it by some voluntary act of consent .. . Whatever
form the consent may take, the range of matters that the Court can then deal with is
limited to the matters covered by that consent." fi

Libya's disgraceful and unsubstantiated allegations of threats to use force, to which

Sir Franklin Berman has already referred, clearly fall outside the scope of the act of consent

containedin Article 14. Sotoo, Mr.President,do Libya's cornplaints- towhich ProfessorDavid

made no reference but which are set out in Libya's written pleadings - that the imposition of

sanctionsupon Libya was unfair and discriminatory. Of course,rulesof internationallawexisting

outsidethe Convention are relevant to these proceedings,as 1shall explain in a minute, but there

is a fundamental difference between sayingthat and using rules outside the Montreal Convention

as the foundation for a claim, when the only basis for the Court'sjurisdiction is Article 14of the

Montreal Convention7.

Libya'sArgument that the UnitedKingdomhas Soughtto Set Aside (écarter)the
Montreal Convention

2.6. So much for that. Mr. President, the essence of Libya'sarguments is to be found in

Professor David's first two propositions. It is these which address the fundamental question of

whetherthere is a dispute between the United Kingdom and Libya whichfalls within Article 14,

paragraph 1,ofthe MontrealConvention. Thetwo pointsare inextricably linked andtheyrepresent

the conclusion of a seriesof steps in reasoning which are fundamentallyflawed, becausethey rest

upona misunderstandingboth of the propositionsof law involvedand of what took placebetween

the 14 November 1991 and 3 March 1992.

'Separateopinion ofJudge ad hoc Lauterpacht,1.C.JReports 1993, p. 412. See also the Orde19and344-346.tat pp.

'CR 97/16p. 58, par4.8-4.9. -18 -

2.7. The first step in the reasoning is that the offenceswith which the accused are charged

fa11withinArticle 1oftheMontrealConvention. Nowthis is a necessarystepinLibya'sreasoning

but it is not in itself sufficientcausethe United Kingdom does not contest that the charges, if

proved, would disclose an offence falling within Article 1. There is therefore no dispute on this

point.

2.8. The second step in the reasoning is that the Convention establishes a mechanism, as

Professor David put it, a set of "rulesof the game" for dealing with acts of terrorism of thiskind

and that that mechanism was applicable between Libya and the United Kingdom. Again,

Mr. President, thereis no dispute on this point.

2.9. The third step in the reasoningis that the Conventionis said to constitutethe exclusive W

mechanismfor addressingterrorist attacksupon civil aircrafi,with the resultthat there is saidto be

a dispute because Libyasought to applythat mechanism,while the United Kingdomdid not agree

to do so but instead attempted to set aside, (or as my learned opponents put it écarter) the

Convention. It is here that the process of reasoning breaks down,Mr.President.

2.10.It breaks down,first of all,cause it assumesthat internationallawconsistsof a series

of entirely self-containedcodes, eachof whichdeals with a particular issue and noneof whichhas

any connectionwiththe others. In effect, internationallaw is representedas a multitude of sealed

boxes with different labels, such as air terrorism, threats to international peaceand so on. But

Mr. President, internationallaw is not like that at all. It is a system,which has to be seen as a
'iJ

whole. Indeed,Professor Davidhimselfsaidas much laterinhis speech,when he commentedthat:

"la conventionde Montréalnepeut être dissociée dudroit international général"*-, a sentiment,

Mr. President, which is not easy to reconcile with Professor David's earlier approach to the

Montreal Convention.

2.11. At the heart of the system of international law is the Charter of the United Nations,

binding on al1member States. The provisionsof the Charter on threats to internationalpeace are

not confined to a box separate fromthat containingthe rules on air terrorism. Nothing in the text,

thepurposes,the historyorthe subsequentpracticeofeitherthe Charterorthe Montreal Convention

'CR 97/20, 57,para4.41. - 19-

supports such a contention. To see the Montreal Convention in the context of that system of

international law and to act accordingly is not to set aside the Montreal Convention,still less is it

to violate that Convention.

2.12. This step in Libya's reasoning is also flawed, Mr. President, because it ignores the

principle intheOilPlatformscase,towhich 1 referredinthe firstround9andwhichProfessor David

accepted", thata dispute aboutthe application of atreaty doesnot come into beingmerely because

twoparties differover an abstractpropositionaboutthe statusof thetreaty. Whatisrequired isthat

the conduct of a party be capable of being measuredby reference to that treaty.

2.13. The same is trueof the next step in Libya's reasoning: this next stepisthat Articles 5,

paragraph 2,7 and 8 paragraph3, of the Montreal Convention giveLibya an exclusive right: the

right to choose whether to extradite an accused person or refer the case to its own prosecuting

authorities. Whatcounsel forLibya soughtto portrayas a right is infact an obligation- if a State

does not extraditean accusedperson, it comesunder an obligationto set in motionits prosecution

machines.. Theother provisionsto which counsel referred are irrelevantfor the reasons 1gave in

the first roundof submissions. TheobligationswhichArticle 7 imposesupon Libyacannot be seen

in isolation fiom Libya's obligationsunder the Charter and the overriding statuswhich the latter

possess by virtueof Article 103ofthe Charter. Moreover,if one looksat the conductofthe Parties

byreferenceto those provisions ofthe Convention,itbecomesclear,Mr. President,that there is no

dispute regardingtheir application. In particular, the United Kingdom has not accused Libya of

having violatedArticle 7, and Article 7 imposes no obligations upon the United Kingdom.

2.14. Withregard to Article 11to which Libyaalso refers, we made Oursubmissions in the

firstround. Inreply,Ouropponents,Professor SalmonandProfessor Davidwere reducedto arguing

that the letter from the Libyan judge to the Attorney-General for England and Wales on

27 November 1991, though it madeno mention ofthe Montreal Convention,was impliedly based

onthat provision. And thattheUnited Kingdom's lawyers, towhom Ouropponentspaidan elegant

complement,would of coursehave recognized itas such. Now, as it happens,Mr. President, under

'CR 97/16, p. 59,paras.4.1and.p. 67, para.4.34.

''CR97/20, p. para4.8. -20 -

Our law, assistance in criminal proceedings is perfectly possible without a treaty. The

United Kingdom'slawyersthus have noreasonto assumethat the Libyanletterwas baseduponthe

Montreal Conventionor uponany othertreaty. But that is not the point. The point, Mr. President,

is that if, as Libya now asks the Court to rule, the Montreal Convention was an exclusive

mechanism, it is, to Say the least, surprising that no Libyan officia1 made it clear, then or

subsequently, that this letter was the invocation of an obligation claimed to be due from the

United Kingdom under that Convention.

Libya's Failure to Identify an Act on the Part of the United Kingdom "SettingAside" the

Convention 4

2.15. And this leads us, Mr. President, to the most fundamental flaw of al1in the Libyan

reasoning. Libya's argumentthat there is a disputebecausethe United Kingdomhas soughtto set

asidetheMontreal Convention,toécarterthe Conventionfailsto answerthe all-importantquestion:

what is the act by which the Conventionwas écartée?What is it that the United Kingdomis said

tohavedonewhichpurportsto set aside,letaloneviolatethe Convention? And it isLibya's failure

to find a satisfactory answer to that question which is the fatal weakness in the argument which

counselfor Libya deployed last Friday. The answer cannot be the United Kingdom'srequestthat

Libyasurrenderthe accusedfortrial in Scotland. Counselfor Libyarightly acceptedthat Statescan

agreeto substitute a mechanism of their choice for that contemplated by the Convention." Well,
.rr
if this would not be contrary to the Convention, nor can a request to do so be contrary to the

Convention. And if a State may make one such request, it mayrepeat that request.

2.16. So the allegedact of "settingaside" must lie elsewhere. In its pleadings, and especially

in its argument in 1992,Libyatried to arguethat it was the threats of force of which it accusedthe

United Kingdom. But the emptiness of Libya's argument on this point has already been

demonstrated.

2.17. In fact, it was Professor David who atlast confessed what it was that lay at the heart

of Libya's case. According to him, it was the United Kingdom's action in going to the

"CR 97/20, 44,para4.14. - 21 -

Security Council and placingthe matter before the Councilwhich amountedto a violation of the

Montreal Convention or an attempt to set that Convention aside12. Now, Mr. President, that

contention is quite simply nonsense. Counsel for Libya asks you to tum the entire system of

internationallaw,the constitutionof internationalsociety,on its head. Instead of theCharterbeing

at the apex of the pyrarnid, it is to be placed at the base. Instead of the Security Council being

entrusted with powers to take binding decisions for the maintenance of international peace and

securitywhich al1Statescan be requiredto implementand which overrideobligationsunder other

treaties, Libyacontendsthat the powers ofthe Councilandthe right ofStatesto take mattersto the

Council are subject to the "mechanisms"created by other treaties and that those treaties - for

Montreal is, of course, only one amongmany to which this line of argumentwould apply- those

treaties impliedly prohibit a State, even a Member of the Security Council, from raising withthe

Councilconductwhichitconsidersmaybeathreatto internationalpeaceifthat conduct fallswithin

the scope of one of those treaties. This conclusion is al1 the more remarkable because

Professor Salmon had already told the Court that it was Libya which first referred the Lockerbie

bombing to the Council in November 199113.

2.18.Mr. President,inanattempttojustiij thatremarkableconclusion,counselforLibyawas

forcedto adopta seriesof increasinglyunsustainablepropositions. First,we had the argumentthat

neither the Charter nor the Montreal Convention intendedto confer uponthe SecurityCouncilthe

jurisdiction todeal with individual acts of terrorism. Well no, Mr. President,but the Charter did

entrustthe Councilwiththe power andthe responsibilityto dealwith threatsto the peace,whatever

form thosethreatsmighttake. TheCharterdidnot, andthe Montreal Conventioncouldnot,remove

that power and that responsibility merely because the threat took the form of terrorist acts rather

than action by regular amies. We have already shownthat the SecurityCouncil hadalready been

concerned with terrorism in general and the Lockerbie incident in particular14.

I2CR97/20, p. 43, para.4.10.

"CR97R0, p. 28, para.3.11.

"CR97/16, pp.42-43, paras.3.10-3.15 (Mr.Bethlehem). - 22 -

2.19. Then we had the suggestionthat the present case was different becausethis was not a

case of a "real" threat to internationalpeace and because the facts here had not been fully proved

at the time the Council acted. This argumentwill be dealt with at lengthby the Lord Advocate.

Sufice it to Sayfor now that it dependsfirst uponthe wholly untenablethesis that the Council can

act only when al1relevant facts have been proved before it and, secondly, upon the Court being

askedto substituteits view of whatconstitutesa "real"threatto international peaceandsecurityfor

that of the Council. There is ample authorityfor saying that this is somethingthe Court will not

and should not do. 1refer the Court to yourown statement to that effect, Mr. President, in your

opinion in the 1992 proceedings".

2.20.Next, counsel for Libya repeatedthe argumentthat the Montreal Conventionmust take W

priority over the Charter because it is lexposterior and lex specialis.The United Kingdom has

already dealt with this argument in the first round of oral submissionsand 1respectfullyrefer the

Court to what was said there16

2.21.Finally,Professor DavidarguedthattheUnitedKingdomhad actedunlawfullyingoing

to the Council, because, so he said, Article 33, paragraph 1, of the Charter required the United

Kingdom to exhaust the possibilities for peaceful settlement envisaged by Chapter VI - and in

particular the "mechanisms"containedin the Montreal Conventionbefore seekingactionfrom the

Council. This argument rests on two premises: first, that international law requiresthat a State

begin by applying the relevant lex specialis (in Libya's view the Montreal Convention) and,
iiI

secondly,thatbecauseArticle 33, paragraph 1,refersto disputes "thecontinuanceofwhichis likely

to endanger the maintenance of internationalpeace and security",the obligation in Article 33 to

seek a solutionof a dispute by the means set out therein is not limited to disputes beingdealt with

under Chapter VI.

2.22.Mr. Presidentthis argument betraysamisunderstandingofthe Charter. It is clear from

paragraph 2 of Article 33 and Articles 34 and 35 that the Council is given a wide discretion to

investigate both disputes and situations which might lead to international friction and wide

'%C.J .eports 19923, ap.66.

16CR97/16pp.64-66paras4.26-4.30. - 23 -

discretionto decide what actionto take if it finds that the continuanceof a dispute or situation is

likelytoendangerinternational peace and security.Article 36empowersthe Council"atany stage"

of a dispute or situation whichis likelyto endanger international peaceand securityto recommend

waysof resolving it. AndArticle 37 places anobligation on partiesto a dispute whichcannot,for

whatever reason, be settled to refer it to the Council.

2.23. Moreover, Chapter VI has to be read together with Chapter VII, for the Council has

responsibilitiesunder both Chapters. The reason is obvious. It is better for parties toa disputeto

settletheir differenceseacefûlly,with or withouthelp frornthe Council. But,Mr. Presidentthere

is nothing in either ChapterVI or Chapter VI1which requires a State, or the SecurityCouncil, to

proceedthrough any of the procedures laiddown in Chapter VI beforethe Council cantake action

under Chapter VII.

2.24. The two Chapters have the sarneobjective - the maintenance of international peace

and security - but employ different means. There is no procedural link between themand no

hierarchywhich places Chapter VI above Chapter VII. When a State considersthat a situationor

the consequences of a dispute threatens international peace and security, the Charter gives it an

unrestricted right to ask the Council to take actionunder Chapter VII. Whetherthe Council does

so is, of course, a matter for the Councils discretion.

2.25. In reality, Mr. President, itis the fact that the Councildid take suchaction in this case

and imposed obligations upon Libya - obligations which would not otherwise have

existed - which is the real object of Libya's cornplaint. Five and a half years ago, it was the

desire to prevent the Council from taking action which led Libya to corne to this Court. Today,

puttingan end to the effectof thosedecisionsremainsLibya'srealobjective. But,of course, Libya

cannot Say in terms that this is so, for that would be fatal to its argument that the Court has

jurisdiction. Libya's increasinglydesperateattemptstoread the Montreal Conventionasthough it

contained an implicit prohibitionon recourseto the SecurityCouncilare undertakenin orderto get

round that fundamental problem. - 24 -

2.26. Mr. President,the LordAdvocatewill now addressthis issuein relationto the Security

Council resolutionsthemselves.1thank you for your attention and ask you to inviteLord Hardie
to address you.

The ACTING PRESIDENT: Thankyou, ProfessorGreenwood. 1give the floor now to the

Lord Advocate of Scotland, Lord Hardie.

Mr. HARDIE:

Issues Pertaining to the Involvementof the SecuriS,Council

3.1. Mr.President, Members of the Court, on Friday, counsel for Libya, Professors Suy and

Brownlie, made a number of assertionsconcerningthe involvement ofthe SecurityCouncil its rl

nature, the substanceof what was decidedand the competences of the Court in respectthereof. 1

do not propose to address al1the issues they raised; nor do 1think this is warranted.not,

however, let the misrepresentation of the United Kingdom's argumentby counsel for Libya go

unremarked. The significantinconsistenciesin the Libyan positionare also matters which warrant

attention.

3.2. In opening, Professor Brownlie characterizedthe United Kingdom argument on the

Security Council as one of "immunity". The United Kingdom, he says, presents an argument of

"immunity fiom judicial examination of any kind"'. The question for the Court, in his view, is

whether an applicationbased on "normallegal grounds" is to be rejected "by reason of an alleged-

immunity of the decisions of the political organsfiom judicial s~rutiny"~.

3.3. This misrepresents the United Kingdom's positionand completely ignoresthe issues of

substance. The United Kingdom has not presented an argument of "immunity". The

United Kingdomdoesnot hold the viewthat acts ofthe Councilare immunefiom scrutiny. It does

not take the view that the Council is free to act without restraint or control. On the contrary, as 1

indicated in my submissions last week3,the Counissubjectto controls. Thosecontrolsoperate,

'CR97/21, a34,para. 9.

'CR97/21, at p. 34,para.5.

'CR97/17, at pp. 13-15,paras.5.19-5.22. - 26 -

3.5. Thenthere is the argumentthat it is "legallyimpossibleto limit the judicial functionto

theissue oftheforma1validityofresol~tions"~.UnlikecounselforLibya,the United Kingdomsees

no impossibility,or evengreat difficulty,in distinguishingbetween thetwo. Let me illustratethis

by using an example drawn from one of the measures cited by Mr. Bethlehem last week. The

Presidential Statementof 20 June 1972directedto the issueof terroristattacks againstcivilaircraft

was in fact entitled a "Decision of the Security C~uncil"~. If a questionwere to arise aboutthe

status of this act - whether, for example, it amounted to a "decision" of the Council for the

purposes of Articles 25 and 48 of the Charter- the United Kingdomaccepts that this would be

a matter into which the Court could, andshould, enquire. Similarly,the United Kingdomaccepts

thatthe Courtcouldenquire intothe questionof whethera particularresolution was adoptedbythe .rr'

required votingmajority or, as, for example,in the case of resolution 731,whether it was adopted

under Chapter VI or Chapter VI1of the Charter. These are proper issues for this Court. Al1of

thesequestions go to the formal validity and statusof the act in question. The Court takes an act

of a competent United Nations organ and considers first, its status and secondly, its legal

consequences. This is exactly what the Court did in the Expenses a7d Namibiac 8ases. These

questions do not go to the exercise by the SecurityCouncil of its responsibilityunderthe Charter.

Theappreciation of when to act and what actionto take is a matter forthe Council. The power of

substantivereview isnot contemplatedbythe Charter. If now pluckedfiom the etherby the Court,

it would overturn the Charter machinery.

3.6. Mr. President,on Friday, Professor Suy wentto some lengthsto developthe contention

thatthe Court is entitledtointerpretthe resolutionsofthe Security Councilin question. Wedo not

take issue with him on this point. On the contrary, we urge the Courtto do so in this case as, in

Ourview, the resolutions- particularlyresolutions 748 and 883 - are dispositive of the matters

nowbefore the Court. In the light of Professor Suy'sargument, it mustalso be recalled, however,

'CR97/21, at p. 35, para.12.

6S/10705,20 June197seeCR 97/16, atp. 42, para.3.12.

'C.J .eports 1962,p. 151.

%C.J Report1971,p. 17. - 27 -

that interpretation is an exercise in discovering the meaning of the words, the intention of the

drafiers andthe object of the measure. It is not an exercise in assessing whether the organ which

adopted the measure came to the right conclusion in the exercise of its powers of appreciation

leading up to the adoption of the measure in question. We do not accept, as Professor Suy

maintains, thatthe processof interpretationhas to contortthe meaning ofthe resolutionsso that it

complies with the terms of the Montreal Convention. Thetask of the Court is not, via a process

of so-called "interpretation",to turn the resolutions into something they are not. Rather, it is to

discover their intended meaning and to give effect thereto. If, in the course of this exercise, it

becomes apparentthat the obligations in the resolutions conflict with the obligations under some

or other internationalagreement,that is the purposeof Article 103of the Charterwith its carefülly

conceived and clearly drafted provisionas to the hierarchy of international obligations.

3.7. Mr. President, let me in this context address the argument now resurrected by

Professor Suythat the resolutionsdo not require Libya to hand over the accused for trial in either

the United Kingdom or the United States.

3.8.On Ourreading of the resolutions andthe documentson whichthey are based,there can

be no doubt that this is precisely what was required of Libya by the Security Council.

Mr. Bethlehemtook you through the relevant documents last weekand there is, accordingly, no

need for me to revisit them. Just as compelling is that Ourappreciationof the resolutions accords

with that ofthe Secretary-General,who was askedto seek Libya'sCO-operationin complyingwith

resolution 731. It also accordswiththat of Colonel Qadhafihimself. In supportofthis proposition

1would simply refer the Court to the Report of the Secretary-Generalof 3 March 19929.

3.9.Letme moveonto touchbrieflyonthe equallybafflingcontentionby Professor Suythat

the SecurityCouncil cannotcreatenew obligationsforUnited Nations Members - "Il[leConseil]

ne peut pas créerde nouvellesobligations àla charged'un Etatmembre"'0. This proposition is so

surprising as to be hardly believable. It is surely beyond doubt that this is precisely what the

Council is able to do in the context of its enforcementpowers under Chapter VI1of the Charter.

9S/23672,3 March1992; reproduasAnnex 14of the United Kingdom's documents.inarticul, aragraph(c)and(4
and4 (a)O),(d)and(e) of theReport.

'"CR97/21, atpp.30-31.Indeed, it has done so on numerous occasions over the past few years in the context of its

impositionof economicandothersanctions. In illustration,letmerecallbrieflytheCouncil's action

under Chapter VI1in respect of Iraq, Yugoslavia, Haiti, Rwanda, Angola, Liberia,Somalia, Sudan

and Sierra Leone, to Saynothing of the earlier examples of southern Rhodesiaand South Africa.

In each case, the Council'sactions, in fulfilmentof itsobligationsunderArticle 24, paragraph 1of

the Charter, and in accordance with Chapter VII, created new obligations for United Nations

Members. The response by the membership to the adoption by the Council of these measures

indicatesuniversalacceptanceofthe Council'scompetenceto act inthis regard and ofthe obligation

of Members to cany out the decisions of the Council. -..

3.10.Mr.President,Membersof the Court, before1turn to the inconsistenciesin the Libyan J

argument, let me briefly address the array of cases that Professor Brownlie put before you on

Friday. None ofthem sustainthe propositionhe was advancing. Theissue is notwhether advisory

opinions contain authoritative statements of law. The issue is rather that the Court's advisory

jurisdiction and its contentiousjurisdiction are distinct, designed toachieve different ends and for

the exclusiveuseof differentparticipants. The Court itselfhas alwaysbeen carefulto preservethat

distinction and not to merge onejurisdiction with the other. We do not accept that the functions

which the Court may possess in advisory proceedings have any bearing on its treatment of

Security Council resolutions in the context of contentious proceedings.

3.11. Other cases mentioned by Professor Brownlie include:

the Expensec sase, another Advisory Opinion, in which the Court, at the request of the

General Assembly, exarnined incidentallyvarious resolutionsof the General Assembly and

the Security Council for the purpose of interpretingArticle 17,paragraph 2, of the Charter.

There is no suggestion here of a general power of reviewof decisions of either organ. On

the contrary, the Court there stated,

"Inthe legalsystemsof States,there is ofiensomeprocedurefor determiningthe
validity of even a legislativeor governmentalact, but no analogousprocedureis to be
found in the structure of the United Nations. Proposals made during the drafiing of
the Charter to place the ultimate authorityto interpretthe Charter in the International
Court of Justice were not accepted.""

I1LC.J.Reports 1962,p. atp. 168 -29 -

TheCourt inthat casewent on to stressthat it was engagedin renderingan advisoryopinion.

It also emphasizedthat, when the Organizationtakes action on the basis of an assertion that

the action in question is appropriate for the fülfilment of one of the stated purposes of the

United Nations, there is a presumptionthat such action is not ultra vires.

The sarne points were madenine years later by the Court in the Namibia case12;

as with Expenses and Namibia, the Conditionsfor Admissions" case also involved the

advisory jurisdiction of the Court. Its probative value in the present circumstances is,

therefore, limited;

alsoprayed in aid byLibyawasthe NorthernCameroons"case. Here, however,as also with

the aur ru" case, the Court was required to interpret certain resolutions of the General

Assembly for the purpose of determiningtheir legal effect. There was no question in either

case of reviewing the competence of the General Assembly in adopting the resolutions in

question. On the contrary, as the passage fiom the Northern CameroonsJudgment quoted

by Professor Brownlie makes clear, the Court noted that "there is no doubt . . that the

resolution had definitive legal effect"I6.

Professor Brownlie goes on to note, however, that "[tlhe Court did not say that this

wasa subject-matterwhichwas immunefrom examination"". Neither dowe. Boththecases

concemed General Assembly rather than Security Council resolutions. In any event, the

Court proceeded on the basis that the measures in question were intravires and it did not

enquire into issues of substantive validity;

finally, 1 should also note the Court'sdecision on jurisdiction in the Nicaraguacase, also

prayed in aid by Professor Brownlie. In this regard, 1would do no more than simply refer

the Courtto paragraph 98ofthe Judgment,one oftheparagraphs citedbyProfessor Brownlie

but not quoted by him:

'%C.J.Report1971,p. 17atpara.20.

l3. .J. Reports 1947-1948,p. 61.
'9C.J Reports 1963,p. 15.
'%C.J Reports 1992, p. 240.
16CR97/21 atp. 38, para.19.
"Ibid., at para.20. "NorcantheCourtacceptthatthepresentproceedings areobjectionableasbeing
in effectan appealto the Court from anadverseecisionofthe SecurityCouncil. The
there was anything inconsistent withlaw in the way in which the members of thehat
Council employedtheir right to vote. The Court is asked tosjudgment on certain
legal aspects of a situationwhich hasalso been consideredby the SecurityCouncil, a
procedure whichis entirely consonantwith its position as the principaljudicial organ
of the United Nations."]'

There is nothing here which cuts across any of the United Kingdom's submissionsto the Court in

the present case.

3.12. Professor Brownlieraises, at paragraphs 37 to 41 of his speech, a variation of his

argument that the exercise of powers under Chapter VI1of the Charter is a justiciable issue. He

concedesthat the provisionsoftheCharterhave priorityovertheMontreal Convention,but appears --.
-
to suggest that obligations contained in resolutions under Chapter VI1 can prevail over other

obligationsof the Partiesonly ifthe resolutionsare "inaccordancewiththe Principlesand Practice

of the United Nations".1have alreadydealtwith the basic question ofreviewabilitythis moming.

In so far as any separate question is raised about the relationship between Article 103 and the

Montreal Convention,1would refer the Court back to what1said on this matter last Tuesday19.

3.13. 1 would now like to retum briefly to the inconsistency and prevarication which

characterizethe Libyan positioninthis matter. 1can illustratewhat1meanwiththe examplesfrom

the speeches made last Friday.

3.14. First, it is a continuing theme of the Libyan presentationthat the resolutionsrelevant
*
to this case are taintedcause the SecurityCouncil has been used as nothing more than a pawn

of the United Nations and the United Kingdom. The allegation was repeated on Friday by

Professor Suy, who said that "ChapterVI1of the Charter was not created to give effect to the

interna1 law of certain members of the Security Council". In the same speech, however, I

Professor Suy attempted to show, on the basis of a textual analysis, that the resolutions do not J

require Libya to hand over the two accused persons for trial. He bases that contention on

differencesbetween theoriginal drafts of the resolutions,as producedby the Uniteddom and

the United States, and the final versions, as approved by the Security CounProfessor Suy's

"I.C.J. Reports 1984,p.atpara98.
I9CR97/17,pp. 17-19paras5.32-5.39.proposition is presumably that the amendmentsmade by or at the instance of the other Members

of the Security Council resulted in a text which did not do what the United Kingdom and the

United States wanted. What he does not tell us is how, if, as he says, the Security Council is

simply acting for and on behalf of the United Kingdom andthe United States,this situation came

about. Libya is simultaneously claiming first, that the Security Councilis acting at the behest of

the United Kingdomandthe United Statesandsecondly, that arnendmentsmade byothermembers

of the Council have defeated the objects of thesetwo States.

3.15. The prevarication and inconsistency ofthe Libyan position is also apparent in more

important areas than the intemal infelicities in a speech by counsel. Libya hasrepeatedly talked

about removing its constitutional impedimentto the handing over of these two men, but has done

nothing about it. The references which follow, 1would ask to be taken as read and incorporated

into the transcript.

"(a)There are constitutional obstructionspreventing Colonel Quaddafi or the Libyan
administrationfrom handing over Libyancitizens abroad fortrial in the absenceof an
extradition treaty;

fi)He may address an appeal to the Libyanpeople throughthe People's Committee,

which mightresult in the removal of theseobstructions. Hedid not indicatehow long
it would take to overcome the existing constitutional hurdles;

(c)Althoughthe Libyan authorities couldnot forcibly hand over the suspects fortrial
ina foreigncountry ... [tlhepossibilityofhanding overthesuspectstothe authorities
for trial in third countries may be~onsidered."~~

"The Libyan Govemment has not ruled out the possibility of amending its

national law in order to remove the intemal obstacle created by its prohibition of
extraditing its nati~nals."~'

"The competent authorities in Libya have not rejected the principle of
surrendering the two individuals under suspicion. Accordingly, they presented a
number of initiatives and proposals in accordancewiththe legislationin force. Since
these initiatives and proposals were not accepted by the other parties, they have
referredthe issueto the Basic People's Congresses(Libya'sLegislativeauthority)for

the adoption of a suitable position at the earliest ~pportunity."~~

%eport of theSecretary-General,23672, 3 March1992, reproduceatAnn.14of the UnitedKingdom'sDocuments.
"Speechof the LibyanAgent,ProvisionalMeasuresHearing,CR 9212p,. 20 (original),pp. 14-15 (translationby the
Registry).
"~123918 ,4May 1992, LetterfrorntheSecretaryof the PeoCornrnitteefthePeople'sBureauforForeign Liaison
and InternationalCo-operationto the Secretary-Generolf the United Nations,(reproduced atAnn.56 of the
UnitedKingdom'sDocuments,atp. 3, para.4). 3.16. 1would draw your particular attention to the statement by the Libyan Agent to this

Court duringthe ProvisionalMeasures hearing - "The Libyan Govemmenthas not ruled out the

possibility of amending its national law in order to remove the intemal obstacle created by its

prohibition of extraditing itsnationals."

3.17. If action had followed these words, there would be no obstacle to a trial in Scotland.

3.18.1have repeatedto this Court the offerto internationalobserversto attend and monitor

the trial anddetention ofthe accused. The Scottishcourts have demonstratedtheir commitmentto

ensuringthe fairtrial of accused persons. The courtshave the powerto preventa trial taking place

ifthey are satisfiedthat atrial would be oppressivefor the accused. The decisionof the trialjudge
--

onthat, andany other matter arising in the proceedingscan be consideredby the Appeal Courtbut

the matter does not end there. Any matter relative to the fairness of the trial may also be

considered under the European Convention on Human Rights.

3.19.Againstthat background, 1 find the statement, "professionsof faithand incantationson

the virtues and impartialityof Scottishor Americanjudges are deri~ory"~'1 , find that statementas

offensiveas it iswithoutsubstance. No doubtProfessor Salmon hasaccuratelyexpressedtheviews

of those instmcting him, but the logical result of his proposition seems to be that, provided the

crime is suficiently horrifie,justice must sit, hand on mouth, for fear of prejudicingthe rights of

the alleged criminals. In my experience,and 1have acted for boththe defenceand the prosecution

during the course of my career at the Scottish bar, Scottishjuries are not influenced by pre-trial

publicity. Once the trial begins, they are influenced by the evidence which is put before them.

3.20. In any event, it will not do, as Professor Salmondoes, it will not do to Saythat ajury

"bombardedfor years by an official ideologyunleashed against Libya"would presumethe guilt of
C

the accusedZ4.As 1have already shown, the United Kingdom has been at pains to avoid making
-
statements which prejudgethe criminal case. What any potentialjurors are more likelyto have

been bombardedwith are ubiquitous reports, films, books and articles putting forwardalternative

23
CR 97/20, p. 24, para.3.6. (Professor Salmon).
24CR 97/20, p. 24, at para. 3.6. - 33 -

explanations for responsibility for the crime; and suggesting the innocence of the accused. As

Professor Salmonhimselfpointsoutalittleearlier"D'autres pistestrèssérieusesontéa tvancées.""

3.21. The last exampleof Libyanprevaricationto which 1will referthis morning appears in

the speech of Professor Salmon, who has sought to show that Libya is not opposed to the

international communityand refers to the Arab League, the Organisation of African Unity, the

Non-aligned Movementand "thevast majorityof the member Statesof the United Nations". 1will

only Say this. It is from the whole membership of the United Nations that the changing

membershipof the Security Council is drawn. It is the whole membership ofthe United Nations

who have entmsted the responsibilityfor internationalpeace and securityto the Security Council.

It is the whole membership of the United Nations who have agreed to accept and cany out the

decisionsofthe Security Council. It isthe wholemembershipof theUnited Nations who now look

to Libya to implement the resolutions of the Security Council without further evasion and

procrastination.

3.22. Mr. President, Membersof the Court, this is not an ordinarycase. 1remindthe Court

of my primaryresponsibilityof Lord Advocate in Scotland. It is my dutyto bring persons charged

with crimes tojustice. In this casejustice is being delayedandjustice has therefore been denied

since Libya first refused to hand over these two accused in 1991. 1want to discharge my duty,

which amounts to no more and no less than the presentation of the case to a jury of 15ordinary

citizens, chosen at random.

3.23. Thereare, for the reasons outlinedby Sir Franklin Berman, no grounds for linkingthe

decision on the preliminaryobjectionsto the decisions on the merits. On behalf of the relatives of

the dead, on behalf of the people of Scotland, on behalf of the broader international community,

who are al1watching these proceedings, 1would urge this Court to reach a decision which will

expedite a trial of these men in Scotland or in the United States of America.

1thank you for your attention. 1would ask Sir Franklin Berrnanto conclude.

The ACTING PRESIDENT: Thank you, Lord Hardie. Sir Franklin, you havethe floor.

''CR97/20,p. 24atpara.3.5. - 34 -

Sir Franklin BERMAN: Mr. President, 1 promised we would be brief and that in fact

concludesthe oralargumentfortheUnited Kingdomthis moming. It remainsforme inaccordance

with Article 60 of theRules to confirm the Final Submissionsof the United Kingdom. Before 1

do so, may1 - although1have no authorityto speak for the Parties in general,but 1am sure that

1 represent their commonview - ask you to convey Ourgood wishes to your brotherJudge who

was taken il1on Friday, with Ourcommon wishes for his speedy recovery. Mr. President, in

accordancewithArticle 60, paragraph 2, ofthe Rulesof Court1 confirmthatthe finalsubmissions

of the United Kingdom are that the Court adjudge and declare that:

it lacksjurisdiction over the claimsbroughtagainstthe United Kingdombythe Libyan Arab
Y

Jamahiriya I

and/or

those claims are inadmissible;

and we ask the Court to dismiss the Libyan Application accordingly.

Thank you,
Those submissions will be handed in in written fom to the Registrar.

Mr. President.

The ACTING PRESIDENT: Thankyou, Sir Franklin. The Court will now adjoum for

15 minutes.

The Court rose at 11.20 a.m.

Document Long Title

Audience publique tenue le lundi 20 octobre 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Weeramantry, vice-président, faisant fonction de président

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