Answers of Libya to questions put by the President and Judge Koroma (translation)

[Translation]

Reply of the Libyan Arab Jamahiriya
to the question of President SCHWEBEL

1.Libya's case, such as it was argued during the hearing on Wednesday 22 October 1997, is that there
has been an abuse or misuse of power if the Security Council has determined that there exists a
threat to the peace as the basis for requiring Liba to surrender the accused to the United States
or to 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 islargely discretionary, but it is notunlimited. 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 Cou tritself with determining whether there exists
a threat to the peace.

Nonetheless, the Court is entitled tofind that, by determining that there exists a threat to the peace in a
particular case, the Security Council actedultra viresor used its powers for purposes other than

those for which those powers were conferred on it (seeLegality of the use by a State of nuclear
weapons in armed conflict, I.C.J. Reports 1996, p. 82, para. 29). In doing this, the Court may
conclude, on the basis of an objective, legal analysis, that the Coun cil 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 interreted 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 function.
Libya considers that that is the case here. It also considers that there is no argument as to the
entitlement of the Court tointerpret resolutionsoftheCouncil.

2.In 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
requiringLibya to surrender the two suspects to the United States or to 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". It can, therefore, as it has already done in the past ( Certain
expenses of the United Nations, I.C.J. Reports 1962, pp. 156-157, 170, 177-178; Namibia,
I.C.J. Reports 1971,pp. 46 and 53, paras. 94 and 115;LegalityoftheUse by a State of Nuclear
Weapons in Armed Conflict, I.C.J. Reports 1996,p. 82, para. 29) rule on whether resolutions of
the Security Council comply with the Charter.

Libya is not however, asking the Court to rule on thevalidityof the resolutions in issue. The Court is
not being asked to declare that such or such resolution is null and void. The Court is only being
asked, if necessary, to rulethat the resolutions arenot capable of operating against Libya, in so
far as they require Libya to surrender the accusedto the United States orto the United Kingdom.
The judgment 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 itsdirect subject-matter
the parts of the resolutions relating to the way in which the accused are to be brought to justice.
The binding effectof the judgment of the Court would be limited to the requirements laid down
by the Council to that effect.