96 Legal effects of Security Council Resolutions (II)

And let me illustrate this by referring to the Lockerbie case. You may remember that in 1988, a few days before Christmas, Pan Am Flight 103 was destroyed by a mid-air explosion and crashed on the town of Lockerbie in Scotland. In November 1991, two Libyan nationals were charged in the United Kingdom and in the United States for having allegedly planted the bomb on board the aircraft that caused its destruction and the death of 259 passengers and crew, and also the death of 11 citizens of the Scottish town. The extradition of the suspects was requested. Libya refused to cooperate with the two Western powers and claimed that under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, that under that convention it had the right to prosecute and try the two accused nationals and to receive supporting evidence from the UK and the US. Meeting on 21 January 1992, the Security Council adopted Resolution 731, deploring the lack of cooperation by the Libyan government and urging it, I quote, immediately to provide a full and effective response, end of quote, to the cooperation requests it had been addressed. On 3 March 1992, Libya instituted proceedings at the International Court of Justice against the US and the UK, vindicating its rights under the Montreal Convention. Article 14 of that convention provides for ICJ jurisdiction in case of disputes about the interpretation or application of the convention. On the same day, Libya also requested provisional measures from the court. And hearings took place in The Hague in late March 1992. And on 31 March 1992, three days, just three days after the close of the hearings, while the court had already began its deliberation over the request for provisional measures, the City Council adopted Resolution 748. The Council determined that the failure by the Libyan authorities to comply with the previous resolution, which was not clearly binding as such, that this failure constituted a threat to international peace and security. And acting under Chapter 7, the Council decided that Libya must comply without any further delay with the extradition requests and commit itself to seize all forms of terrorism. The resolution also imposed on all member states of the UN to take several sanctions against Libya in order to induce Libyan compliance. And furthermore, pursuant to Article 2, Paragraph 6 of the Charter, the Council called upon all non-member states and all international organizations willingly to conform with the sanctions of the resolution. On 14 April 1992, the court delivered its order and decided not to indicate any provisional measures. Well, why? The court considered that because of Article 103, the obligations contained in Resolution 748 prevailed over the obligations under any other international agreement, including the Montreal Convention, and that whatever was the legal situation previous to the adoption of Resolution 748, I quote, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures. The court also said that the indication of the measures requested by Libya would impair the rights which appeared prima facie to be enjoyed by the US and the UK by virtue of Resolution 748. In other words, the new obligations created by Resolution 748 replaced the rights and obligations of Libya under the Montreal Convention. Therefore, said the court, there was no need to protect the rights of Libya under the Montreal Convention. Between the US and the UK on the one hand, and Libya on the other, the only obligations to apply were those under Resolution 748. And you probably know how the Lockerbie story unfolded. An agreement was found with Libya in 1998, and the two Libyans were convicted in 2001 by a Scottish court sitting in the Davidens. Libya paid 10 million US dollars as compensation to the victims, and the UN sanctions were definitely lifted in 2003. The ICJ case never proceeded to the merits and it was discontinued. After having recalled the Lockerbie case, let me stop here for a moment in order to take full measure of the quite extraordinary powers of the Security Council. In a legal system of sovereign states, a legal system that is horizontal and decentralized, where legal obligations are created by consent and free will, the Security Council has the legal authority to create binding obligations against the will of some member states, to displace their rights and obligations contained in perfectly valid treaties that states consented to, and to unilaterally replace them with new rights and new obligations. Such verticality, such supremacy, is quite extraordinary, and indeed it is unique in the international legal order. Of course, member states are bound by Security Council resolutions because they have ratified the Charter, so we are ultimately back to consent. From a legal point of view, that argument is not open to criticism. But let us face it, it is a very, very formal argument, because no member state can foresee what the Council might decide years after having consented to the Charter. Be that as it may, and because the powers of the Security Council are such, it is important to know precisely what is required from its resolutions, which is a question about the interpretation of those resolutions. And it is also important to know if there are any limits to the powers of the Council in terms of the rules it can dispose of. And we'll address those two questions now.