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Leave to the Court What Belongs to the Court: The Libyan Case
Bernhard Graefrath 1
Full text available: PDF format *
Many recent activities of the United Nations Security Council have been carried out in the shadow of legal doubts.2 A prominent and disturbing example of apparently activist Security Council action is found in measures taken against Libya due to its alleged involvement in the bombing of a Pan Am flight over Lockerbie in Scotland in 1988. On 21 January 1992 the Security Council passed Resolution 731 which inter alia obliged Libya to extradite two suspected perpetrators of the crime to either the United States or the United Kingdom for trial in one of those countries. In response Libya brought an action before the International Court of Justice (ICJ) and requested the Court to indicate provisional measures to enjoin the United States from taking coercive actions against Libya and to ensure that no steps were taken that would prejudice Libyas's rights.
Unfortunately, any opportunity for the ICJ to make an independent ruling was thwarted by a Security Council decision. On 31 March 1992, three days after the close of oral hearings but before the ICJ brought down its judgment, the Security Council passed Resolution 748 ordering sanctions against Libya. The sanctions were to come into effect on 14 April, one day before a decision of the Court was due.
As is well known the Court in Libyan Arab Jamahiriya v. United States of America did not order the interim measures requested by Libya,3 fearing that they would be likely to impair compliance with the Security Council Resolution 748(1992). However, at the same time the Court stressed that it was not called upon and had not determined any of the substantive questions.4 The Court explicitly emphasized that, in accordance with Article 41, it `cannot make definitive findings either of fact or of law on the issues relating to the merits.'5 That means the Court cautiously left the door open to review all questions of fact and law when dealing with the merits of the case. The Court emphasized that `at the stage of proceedings on provisional measures, [it] considers that prima facie' the obligation of member States of the United Nations to accept and carry out decisions of the Security Council under Article 25, `extends to the decision contained in Resolution 748 (1992)' and that according to Article 103 of the Charter `the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention.'6 However in order to avoid any misinterpretation, the Court added in the next paragraph that at this stage it `is not called upon to determine definitively the legal effect of the Security Council Resolution 748 (1992).'7 This also seems to indicate that the Court, when dealing with the merits feels free to determine the legal effects of Security Council resolutions. However, at this stage of its proceedings the Court in accordance with its rules of procedure obviously avoided considering any questions related to the legality of the Security Council resolutions. I am not going to report the Court's decision or to examine the issues related to interim measures but will concentrate on more general questions, such as the legal background of the Security Council activities in this case and some aspects of the relationship between the Security Council and the ICJ.
I. Strengthening Peace in Applying Principles and Purposes of the United Nations Charter
These questions may be of general interest which are not limited to the Libyan case, because the action of the Security Council reflects8 a new policy, as is illustrated by the statement issued at the Security Council summit meeting of 31 January 1992. In this statement members of the Security Council declared as follows:
The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social humanitarian and ecological fields have become threats to peace and security. The United Nations membership as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters.9
Clearly economic, social, humanitarian and ecological instability within a country can become sources that threaten peace and security and may therefore become matters of international concern. In the history of the United Nations the Apartheid system is a relatively old example that immediately comes to mind.10 Of course, not all non-military forms of instability will amount to a threat to peace. Therefore the mere fact that there is social instability does not justify action under Chapter VII of the Charter. The instability, caused by whatever reason, has to be of such a kind, or develop such forms or activities that the Security Council considers that the situation constitutes a threat to international peace or security.11 Thus far, the Security Council has found such conditions in only narrowly defined circumstances, and it has been even more reluctant to censure such conduct with sanctions.12
With the demise of the East-West conflict, the Security Council has evidenced an intention to give high priority to the solution of social, economic, humanitarian and ecological problems. This change of emphasis will be widely praised, given the expanding poverty problem in many parts of the world. However, a change in policy and priorities does not alter the UN Charter, nor can it justify deviation from the competences given to the various organs under the Charter. Further, despite the broad objectives reflected in the Security Council statement reproduced above, it is important to note that the sentiment expressed was qualified in the very next paragraph by reference to the proper channels provided in the Charter:
The members of the Council pledge their commitment to international law and to the United Nations Charter. All disputes between States should be peacefully resolved in accordance with the provisions of the Charter.
The members of the Council reaffirm their commitment to the collective security system of the Charter to deal with threats to peace and to reverse acts of aggression.13
The Secretary-General in his report `Agenda for Peace' also concentrated on proposals to enhance the effective use of the provisions of the Charter. He did not advance suggestions or recommendations to amend or change the Charter. While stressing that `the time of absolute and exclusive sovereignty ... has passed' and indeed was never matched by reality, he explicitly warned against interventionist policies by stating as follows:
The foundation-stone of this work is and must remain the State. Respect for its fundamental sovereignty and integrity are crucial to any common international progress.14
The Secretary-General in his report rightly stressed that the changes occurring in international relations call for an active and effective World organization to maintain and strengthen peace. According to the Charter this is the primary responsibility of the Security Council. However, strengthening the role of the Security Council and encouraging the Council to use the tools which the Charter has foreseen also requires a careful consideration of `checks and balances' to ensure that the Security Council in discharging its duties acts strictly `in accordance with the Purposes and Principles of the United Nations' (Article 24(2)). It is in that background that the Libyan case warrants general attention.
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1 Professor of International Law, Berlin.
2 E.g., the measures taken authorizing military intervention in the
Gulf War have been widely criticized. Graefrath, Mohr, `Legal Consequences of
an Act of Aggression: The Case of the Iraqi Invasion and Occupation of Kuwait',
43 Austrian Journal of Public and International Law (1992) 109; Weller,
`The Kuwait Crisis: A Survey of some Legal Issues', 3 The African Journal of
International and Comparative Law (1991) 1; Schachter, `United Nations Law
in the Gulf Conflict', 85 AJIL (1991) 452; Weston, `Security Council
Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy', in 85
AJIL (1991) 516; Sucharitkul, `The Process of Peace-Making following
Operation "Desert-Storm"', 43 Austrian Journal of Public and International
Law (1992) 1; Rostow, `Until What? Enforcement Action or Collective
Self-Defence?', 85 AJIL (1991) 506; Reisman, `Some Lessons from Iraq:
International Law and Democratic Politics', 16 Yale Journal of International
Law (1991) 203; Heintschel von Heinegg, `Kriegsentschädigung,
Reparation oder Schadenersatz', 90 Zeitschrift für vergleichende
Rechtswissenschaft (1991) 113; Bothe, `Die Golfkrise und die Vereinten
Nationen - eine Rückkehr zur kollektiven Sicherheit?', 19 Demokratie
und Recht, 1 (1991) 2; Franck and Patel, `UN Police Action in Lieu of War:
The Old Order Changeth', 85 AJIL (1991) 63; Freedman, `The Gulf War and
the New World Order', 33 Survival (1991) 195; F. Malekin, Condemning
the Use of Force in the Gulf Crisis (1992). Dominicé, `La
sécurité collective et la crise du Golfe', 2 EJIL (1991)
85; Conforti, `Non-Coercive Sanctions in the United Nations Charter: Some
Lessons from the Gulf War', 2 EJIL (1991) 110; Malanczuk, `The Kurdish
Crisis and Allied Intervention in the Aftermath of the Second Gulf War', 2
EJIL (1991) 114.
3 Questions of Interpretation and Application of the 1971 Montreal
Convention Arising from the Aerial Incident in Lockerbie, Request for the
Indication of Provisional Matters, ICJ Reports (1992) 3.
8 See Ipsen, `Auf dem Weg zur Relativierung der inneren
Souveränität bei Friedensbedrohung', 40 Vereinte Nationen
(1992) 41.
9 S/PV 3046, 143, 31 January 1992.
10 Cf. also General Assembly resolutions which repeatedly stressed
the close connection between the strengthening of international security and
development, e.g. Resolution 45/80 of 12 December 1950.
11 Even in case of the first use of armed force an act of aggression
is only assumed prima facie and a determination by the Security Council
is required; for a definition of aggression, Art. 2, General Assembly
Resolution 3314 (XXIX), 14 December 1974.
12 A telling example is the inactivity of the Security Council
vis-à-vis the continuing occupation of Lebanese territory and
repeated Israeli aggression against Southern Lebanon. Cf. S/24252, 8 July
1992.
13 S/PV 3046, 143/144, 31 January 1992.
14 A/47/277; S/24111, 17 June 1992, para. 17.
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