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Letter form the Agent of the Libyan Arab Jamahiriya
to the Rçgistrar. dated 4 November 1997
[Translation]
Referring to my letter No. 1623 ofyesterday's date, 3/11/1997, in which 1transmitted to you
the rep1y of the Great Libyan Arab Jamahiriya to the questions asked, at the hearing on
Wednesday 22 October last, by President Schwebel and Judge Koroma, 1would be grateful ifyou
could infonn Members of the Court that the replies of the Great Libyan Arab Jamahiriya are lirtked
and should be read together.[Translation]
Reply of the Libyan Arab Jamahiriya
to the question of President SCHWEBEL
1. Libya's case, sucb as it was argued during the bearing on Wednesday 22 October 1997, is
that there bas been an abuse or misuse of power if the Security Council bas determined that
there exists a threato the peace as the basis for requiring Libya to surrender the accused to
the United States orto the United Kingdom.
2. The Security Council's power to determine that there exists a threat to the peace within the
meaning of Article 39 of the Charter is largely discretionary, but it is not unlimited. That
power must, at the very least, be exercised in accordance with the Purposes and Principles
of the United Nations (Article 24 of the Charter).
The Court does not have the right to substitute itself for the Council in the exercise of the
discretionary power which the Charter confers upon it.The determination that there is a
threat to the peace therefore implies, in part, a subjective assessment which can only be made
by the Council. Chapter VII of the Charter does not charge the Court itself with determ ining
whether there exists a threat to the peace.
Nonetheless, the Court is entitledto find that, by detennining that there exists a threat to the
peace in a particular case, the Security Council acted ultra vires or used its powers for
purposes other than those for which those powers were conferred on it (see Legality of the
use by a State of nuclear weapons in armed conjlict, l C.J. Reports J996, p. 82, para. 29).
Indoing this, the Court may conclude, on the basis of an objective, legal analysis, that the
Council breached the United Nations Charter....
(
[Translation]
Reply of the Libyan Arab Jamahiriya
to the question of Judge KOROMA
1. In so far as Security Council resolutions may be interpreted in such a way as to ensure that
they are in accordance with the Charter, the Court is not called upon to exercise a judicial
review fonction. Libya considers that that is the case here.lt also considers that there is no
argument as to the entitlement of the Court to interpret resolutions of the Council.
2. ln Libya's view, the Court would only be obliged to carry out a judicial review of the
Council resolutions in the event that the Court interpreted one or more of the Council
resolutions as requiring Libya to surrender the two suspects to the United States orto the
United Kingdom.
That review would be of the extent to which the Security Council had complied with the
limits which the Charter imposes on the exercise of its powers.
The Court "states what the law is". lt can, therefore, as it bas already done in the past
(Certain expenses of the United Nations, L C.J. Reports 1962, pp. 156-157, 170, 177-178;
Namibia, I.C.J. Reports 1971, pp. 46 and 53, paras. 94 and 115; Legality of the Use by a
State of Nuclear Weapons in Armed Conjlict, IC.J. Reports 1996, p. 82, para. 29) rule on
whether resolutions of the Security Council comply with the Charter.
Libya is nothowever, asking the Court to rule on the validity of the resolutions in issue. The
Court is not being asked to declare that such or such resolution is nuit and void. The Court
is only being asked, if necessary, to rule that the resolutions are not capable of operating
against Libya, in so far as they require Libya to surrender the accused to the United States
orto the United Kingdom. Thejudgment of the Court on that point would only be binding
in so far as it related to the relationship between the parties to the present disputes.
3. Given its incidental nature, judicial review by the Court could only have as its direct
subject-matter the parts of the resolutions relating to the way in which the accused are to be
brought to justice. The binding effect of the judgment of the Court would be limited to the
requirements laid dawn by the Council to that effect.
Written Replies of the Parties to Questions put by Judges during the Oral Proceedings