Non-Corrigé
Uncorrected
~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.
Public sitting held on Monday 20 October 1997, at 10 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding