3 Institutional Structure and the Position of

Members, 3.1 Case Concerning Questions of

Interpretation and Application of the 1971
Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libya Arab Jamahiriya v
United States of America), Request for the
Indication of Provisional Measures, Order of 14
April 1992, [1992] ICJ Rep 114
Lydia Davies-Bright, Nigel D. White

From: Judicial Decisions on the Law of International Organizations

Edited By: Cedric Ryngaert, Ige F Dekker, Ramses A Wessel, Jan Wouters

Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 01 March 2016
ISBN: 9780198743620

Subject(s):
Membership of international organizations — International organizations, practice and procedure —
Responsibility of international organizations

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 (p. 117) 3.1  Case Concerning Questions of Interpretation
and Application of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie (Libya Arab
Jamahiriya v United States of America), Request for the
Indication of Provisional Measures, Order of 14 April 1992,
[1992] ICJ Rep 114
Relevance of the case
In the early 1990s the UN Security Council (UNSC) was engaging more assertively in
international affairs and pursuing a more activist role in maintaining international peace
and security.1 This was not received without criticism,2 especially as the United Nations
Charter does not contain explicit provisions for oversight, a balancing of powers, or a
procedure, in the case of a conflict of interests, in situations where states disagree as to the
path to resolution. The Lockerbie cases provided the Court with the opportunity to assert its
role in providing judicial scrutiny over the actions and Resolutions of the UNSC.
The US government’s response to the air-incident at Lockerbie was to pursue a UN-centred
diplomatic approach, as opposed to a military reaction as with the 1986 Berlin bombing, in
order to effect Libyan compliance.3 Libya did not comply with the demands issued by the
administration and so the US, together with the UK, sought UNSC action. The demands
issued by the interested states arguably demonstrate an unwillingness to entertain any
alternative to the conclusions of the investigators and also reveal the effect of the domestic
political pressure on the governments to respond with strength to the incident. Libya
attempted to rely on the provisions of the 1971 Montreal Convention, which was rebuffed
by the US and UK. The successful resort to the UNSC raises the question of whether or not
it is possible for the international system to deliver justice in such cases where parties are
unwilling to comply with their treaty obligations and where there is no established practice
of judicial review. By invoking the power of the UNSC, the UK and US departed from the
consensual element of international law in a situation where a legal framework already
existed and was applicable to the event in question.

(p. 118) I.  Facts

On 21 December 1988 Pan Am Flight 103, bound for New York, fell from the sky onto the
southern Scottish town of Lockerbie killing all 243 passengers and sixteen crew members
on board, plus eleven people on the ground. On 13 November 1991, the Lord Advocate of
Scotland issued warrants, on charges of murder, conspiracy to murder, and contravention of
the Aviation Security Act 1982 (UK), for the arrest of Abdelbaset Ali al-Megrahi (a Libyan
intelligence officer and head of security for Libyan Arab Airlines (LAA)) and Lamin Khalifa
Fhima (LAA station manager to Luqa Airport in Malta). The US also issued charges against
the two suspects on the same day. The charges centred on the allegation that the suspects
had placed a bomb on board the flight that then exploded and caused the plane to crash.
The Libyan government denied any involvement in the events leading to the incident and
was not willing to surrender the accused or to admit general involvement in terrorist
activities. As the suspects were present on Libyan territory, the government sought to rely
on the ‘extradite or prosecute’ formula of the Montreal Convention 1971, to which all the
states involved were parties.

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 On 30 December 1991, the UK and US issued a joint declaration, circulated to the UN
General Assembly (UNGA) and UNSC, stating that ‘Libya must surrender for trial all those
charged with the crime’.4 The two states also issued a declaration on terrorism and
requested that Libya comply with their demands.5 In January 1992, Libya attempted to call
a special assembly of the UNGA denying UNSC competence in the matter and invoking the
dispute settlement provisions in art. 14 of the Montreal Convention 1971, to which all the
states involved were parties. On 2 January 1992 the UK and US began to seek support for a
UNSC resolution calling on Libya to comply with their demands. The UNSC passed
Resolution 731 on 21 January 1992 urging Libya to provide a ‘full and effective’ response to
the ‘requests’ of the UK and US.6

II.  The legal question

Together with requests for an indication of provisional measures of protection, Libya filed
separate applications against the UK and US at the International Court of Justice (ICJ),
invoking art. 14 of the Montreal Convention 1971 as the basis, claiming that the UK and US
were attempting to bypass the provisions (and obligations) of the Convention by seeking
sanctions. Libya claimed that it had sought the co-operation of the two states in conducting
an investigation into the incident and the alleged offences, but had received no response.7
The UK and US resisted Libya’s application (p. 119) to the ICJ to resolve jurisdictional
issues and claimed that Libya had not tried arbitration. Three days after the completion of
oral hearings on Libya’s request for provisional measures, the UNSC adopted UNSC
Resolution 7488 under Chapter VII of the UN Charter imposing sanctions on Libya for
failing to comply with UNSC Resolution 731 1992, which urged Libya to ‘provide a full and
effective response’ to the requests of the UK and US. On 3 March 1992 the Libyan Arab
Jamahiriya filed an application with the ICJ, in accordance with art. 40(1) of its Statute,
against the governments of the United Kingdom and United States of America. Libya
argued that the UNSC Resolutions made a ‘grave legal mistake’ in linking the alleged acts
of two Libyan nationals to international terrorism generally9 and asserted its rights under
the 1971 Convention.
The extracts below are from the judgment of the ICJ in the case brought against the United
States. The judgment in the case brought against the United Kingdom by Libya follows
along the same lines.10

III.  Excerpts
[…]
ORDER
41. Whereas the Court, in the context of the present proceedings on a request for
provisional measures, has in accordance with Article 41 of the Statute, to consider
the circumstances drawn to its attention as requiring the indication of such
measures, but cannot make definitive findings either of fact or of law on the issues
relating to the merits, and the right of the Parties to contest such issues at the stage
of the merits must remain unaffected by the Court’s decision;
42. Whereas both Libya and the United States, as Members of the United Nations,
are obliged to accept and carry out the decisions of the Security Council in
accordance with Article 25 of the Charter; whereas the Court, which is at the stage
of proceedings on provisional measures, considers that prima facie this obligation
extends to the decision contained in resolution 748 (1992); and whereas, in
accordance with Article 103 of the Charter, the obligations of the Parties in that

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 respect prevail over their obligations under any other international agreement,
including the Montreal Convention;
43. Whereas the Court, while thus not at this stage called upon to determine
definitively the legal effect of Security Council resolution 748 (1992), considers
that, whatever the situation previous to the adoption of that resolution, the rights
claimed by Libya under the Montreal Convention cannot now be regarded as
appropriate for protection by the indication of provisional measures;(p. 120)
44. Whereas, furthermore, an indication of the measures requested by Libya would
be likely to impair the rights which appear prima facie to be enjoyed by the United
States by virtue of Security Council resolution 748 (1992);
45. Whereas, in order to pronounce on the present request for provisional
measures, the Court is not called upon to determine any of the other questions
which have been raised before it in the present proceedings, including the question
of its jurisdiction to entertain the merits of the case; and whereas the decision given
in these proceedings in no way prejudges any such question, and leaves unaffected
the rights of the Government of Libya and the Government of the United States to
submit arguments in respect of any of these questions;
46. For these reasons,
THE COURT
By eleven votes to five,
Finds that the circumstances of the case are not such as to require the exercise of
its power under Article 41 of the Statute to indicate provisional measures.
IN FAVOUR: Vice-President Oda, Acting President; President Sir Robert Jennings;
Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen,
Aguilar Mawdsley;
AGAINST: Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri
[…]
DECLARATION OF ACTING PRESIDENT ODA
[…]
I do not deny that under the positive law of the United Nations Charter a resolution
of the Security Council may have binding force, irrespective of the question whether
it is consonant with international law derived from other sources. There is certainly
nothing to oblige the Security Council, acting within its terms of reference, to carry
out a full evaluation of the possibly relevant rules and circumstances before
proceeding to the decisions it deems necessary. The Council appears, in fact, to
have been acting within its competence when it discerned a threat against
international peace and security in Libya’s refusa1 to deliver up the two Libyan
accused. Since, as I understand the matter, a decision of the Security Council,
properly taken in the exercise of its competence, cannot be summarily reopened,
and since it is apparent that resolution 748 (1992) embodies such a decision, the
Court has at present no choice but to acknowledge the pre-eminence of that
resolution.
[…]
SEPARATE OPINION OF JUDGE LACHS
[…]

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 The framers of the Charter, in providing for the existence of several main organs,
did not effect a complete separation of powers, nor indeed is one to suppose that
such was their aim. Although each organ has been allotted its own Chapter or
Chapters, the functions of two of them, namely the General Assembly and the
Security Council, also pervade other Chapters than their own. Even the
International Court of Justice receives, outside its own Chapter, a number of
mentions which tend to confirm its role as the general guardian of legality within
the system. In fact the Court is the guardian of legality for the international
community as a whole, both within and without the United Nations. One may
therefore legitimately suppose that the (p. 121) intention of the founders was not to
encourage a blinkered parallelism of functions but a fruitful interaction.
[…]
DISSENTING OPINION OF JUDGE BEDJAOUI
[…]
6. Libya was fully within its rights in bringing before the Court, with a view to its
judicial settlement, the dispute concerning extradition, just as the United Kingdom
and the United States were fully within their rights in bringing before the Security
Council, with a view to its political settlement, the dispute on the international
responsibility of Libya. The respective missions of the Security Council and the
Court are thus on two distinct planes, have different objects and require specific
methods of settlement consistent with their own respective powers. Such a
situation, involving two distinct procedures before two principal organs of the
United Nations having parallel competences, is, I might add, not an unusual one, as
I observed in paragraph 2 above. But the difficulty in the present case lies in the
fact that the Security Council not only has decided to take a number of political
measures against Libya, but has also demanded from it the extradition of its two
nationals. It is this specific demand of the Council that creates an overlap with
respect to the substance of the legal dispute with which the Court must deal, in a
legal manner, on the basis of the 1971 Montreal Convention and international law in
general. The risk thus arose of the extradition question receiving two contradictory
solutions, one legal, the other political, and of an inconsistency between the
decision of the Court and that of the Security Council.
7. Such an inconsistency between the decisions of two United Nations organs would
be a matter of serious concern. For it is as a rule not the Court’s role to exercise
appellate jurisdiction in respect of decisions taken by the Security Council in the
fulfilment of its fundamental mission of maintaining international peace and
security, no more than it is the role of the Security Council to take the place of the
Court, thereby impairing the integrity of its international judicial function. But, at
this stage of provisional measures requested by Libya, the present case compels us
to confront this possibility of inconsistent decisions inasmuch as one of the Security
Council’s demands creates a ‘grey area’ in which powers may overlap and a
jurisdictional conflict comes into being. For the facts of this case give the Court the
power to indicate provisional measures to preserve the possible right of the
Applicant to refuse the extradition of two of its nationals, whereas the Security
Council has just taken a decision that is mandatory under Chapter VII of the
Charter calling for the extradition of these two individuals.
[…]

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 12. The rights in question are neither non-existent, nor illusory, nor indeterminate.
Article 7 of the 1971 Montreal Convention, the provision that gave rise to the most
discussion and is at the heart of the Libyan Application, categorically imposes on
every State party to the Convention the obligation either to extradite or to
prosecute before its courts the alleged perpetrators of an offence, in keeping with
the traditional option to which the maxim aut dedere aut judicare refers. Without
entering into the merits of the case, I would point out that, as is well known, there
does not exist in international law any rule that prohibits, or, on the contrary,
imposes the extradition of nationals. All that the régime laid down by the Montreal
Convention does is to complement general international law by, on the one hand, (p.
122) rendering the various national laws applicable and, on the other hand,
imposing on States an ‘obligation to take action’, in accordance with their interna1
law, by either extraditing or arranging for prosecution before their own courts. This
option is now valid, if not under general international law, at least between all the
States parties to the 1971 Montreal Convention. This being so, it has been
contended that the right to be protected here is illusory, since what we are dealing
with is rather an obligation. But could it possibly be that a State is not authorized to
claim the right, which it derives, fundamentally, from its sovereignty, not to be
hindered in the fulfilment of its international duty? Furthermore, it has been
maintained that the 1971 Montreal Convention does not confer on a State party any
right under Article 7 that it does not already possess by virtue of general
international law, so that even if the 1971 Montreal Convention did not exist or
Libya had not become a party to it Libya would remain free to deny extradition by
virtue of international law. From this observation, which is correct, an erroneous
conclusion has been drawn, namely, that the treaty right to be protected is non-
existent, or illusory, inasmuch as Article 7 does not confer an additional right on a
State. But is it conceivable that a right recognized by general international law and
confirmed by an international convention would cease to exist altogether and no
longer be entitled to protection as a result merely of its confirmation, which, on the
contrary, would, it appears, strengthen it? In truth, this line of reasoning is based on
the implicit view that in this case the Court could only apply the 1971 Montreal
Convention, to the exclusion of general international law, whereas, obviously, the
Court’s Statute and its general mission spontaneously oblige it to apply that law.
[…]
29. The situation thus characterized, with rights which deserve protection by the
indication of provisional measures but have also been annihilated by a Security
Council resolution that should be deemed prima facie to be valid, does not fall
completely within the framework of Article 103 of the Charter, but in fact goes
slightly beyond it. That Article, which gives precedence to obligations under the
Charter (i.e., Libya’s obligation to comply with resolution 748 (1992)) as compared
to obligations ‘under any other international agreement’ (here the 1971 Montreal
Convention) is aimed at ‘obligations’—whereas we are dealing with alleged ‘rights’
such as, in my view, are protected by provisional measures—and, in addition, does
not cover such rights as may have other than conventional sources and be derived
from general international law.
30. Subject to this minor nuance, it is clear that the Court could do no more than
take note of that situation and hold that, at this stage of the proceedings, such a
‘conflict’, governed by Article 103 of the Charter, would ultimately deprive the
indication of provisional measures of any useful effect. However, the operative part
of the two Orders places itself at the threshold of the whole matter and decides that
the Court, in the circumstances of the case, is not required to exercise its power to
indicate provisional measures. I take the rather different view that the facts of the

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 case do indeed justify the effective exercise of that power, while I would point out
that its effects have been nullified by resolution 748 (1992). This means that I
arrive, concretely, at the same result as the Court, albeit by means of a quite
different approach, but also with the important difference that I am not led to reject
the request for provisional measures, but rather to say that its effects have ceased
to exist. […]

(p. 123) IV.  Commentary

Thomas Franck, the pre-eminent international jurist, saw the end of the Cold War as
ushering in a new liberal democratic era in international law, which included a ‘right to
democracy’.11 He also saw in the Lockerbie cases of 1992 a Marbury v Madison moment
when,12 reflecting a true separation of powers, the ICJ would seize the chance and assert a
power of judicial review over the executive body of the United Nations—the UNSC.13
The recipe for judicial review in the Lockerbie cases seemed to have been present with
Libya using the ICJ to defend its right to try the two suspects under the terms of the
Montreal Convention 1971, to which all three states were parties, while the US and the UK
resorted to the UNSC to override that criminal justice regime and force Libya to hand the
two suspects over, on the basis that Libyan support for terrorism was a continuing threat to
international peace and security. In fact, the provisional measures order of 1992 (extracted
above) was a more nuanced judgment that could be seen either as a gentle move towards
constitutionalism, or as a plea from the Court for the UNSC not to tread on its toes or, more
realistically, as an indication that, if the case progressed to the merits, the ICJ would re-
consider the effects of Resolution 748, but not its legality (and, presumably, come to the
same conclusion). Ultimately, the ICJ denied the Libyan request for provisional measures of
protection against coercive actions by the US and UK, reasoning that the obligations
created by UNSC Resolution 748 applied to all parties to the dispute and that these
obligations prevailed over any other treaty obligation, including those found in the Montreal
Convention of 1971, by virtue of arts. 25 and 103 of the UN Charter.
At least for the purposes of denying provisional measures, the ICJ accepted that UNSC
resolutions imposed obligations that prevailed over the rights and duties of state parties
under the Montreal Convention 1971. The question remained whether this prima facie
finding of the ICJ, made at the provisional measures stage, would be affirmed at the merits
stage. There were some crumbs for those hoping for judicial scrutiny of UNSC decisions in
the separate and dissenting opinions, examples of which are extracted above. Judge Oda
hinted at things to come when he stated that the ‘Court has at present no choice but to
acknowledge’ the pre-eminence of UNSC Resolution 748, while Judge Lachs spoke
eloquently of the Court being the ‘guardian of legality’ not only of the Charter, but for the
international community more broadly. Judge Bedjaoui (dissenting), however, was more
critical of the Court for not asserting its competence to award provisional measures, even
though he recognized that they were nullified by UNSC Resolution 748, which was imposed
after the Court had been seized of the case. His criticisms of the UNSC may have been
guides as to where the (p. 124) Court might have gone in terms of judicial review at the
merits stage, had the case reached that point. For instance, he questioned whether there
was a threat to the peace in 1992 when the Lockerbie bombing had occurred in 1988. He
also pointed to the lack of evidence before the UNSC, excusable if it were acting as a
political organ, but not when it encroached on the competence of the judicial organ. He also
suggested that art. 103 of the UN Charter was being over-interpreted to cover ‘rights’ in a
treaty rather than duties and that, in any case, it could not overrule what he asserted was
also a principle of customary international law.

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 The hint of promise in the 1992 order was made stronger in the 1998 judgment on
admissibility and jurisdiction.14 The US and UK, relying on art. 103 of the UN Charter, both
argued that the UNSC Resolutions demanding that Libya provide a ‘full and effective
response’ to the requests that Libya extradite the suspects to the UK or US15 rendered the
application without object (as they superseded the Montreal Convention) and inadmissible.
However, the Court, relying on a narrow interpretation of its jurisprudence,16 found that
Libya’s application was admissible17 and that the Court had jurisdiction, notwithstanding
the Resolutions that had been passed since the date of filing.18
The UK and US also argued that no dispute existed between the parties regarding the
application and interpretation of the Montreal Convention, as required by art. 14 in order
for a party to invoke the jurisdiction of the Court. Instead, the two states asserted that any
dispute, if one existed, was between Libya and the UNSC on the effects of that body’s
resolutions. However, the Court found that the parties were in dispute over the applicability
of the Montreal Convention to the case in hand, over Libya’s asserted right to prosecute its
own citizens (art. 7 of the Montreal Convention 1971) and over Libya’s allegation regarding
the lack of assistance by the respondents in Libya’s prosecutorial investigations (art. 11 of
the Montreal Convention 1971).
Although the majority upheld the Court’s jurisdiction, there were significant disagreements
on the impacts of the aforementioned UNSC Resolutions. Judges Fleischhauer and
Guillaume, in their joint declaration, stated that the jurisdiction of the Court was limited to
the interpretation and application of the Convention and does not extend to the UNSC
Resolutions. This view concurs with the arguments of the respondents that the UNSC
Resolutions had rendered the case without object. However, a broader reading of the 1998
judgment would indicate that the relationship between the Montreal Convention and the
UNSC Resolutions does indeed fall within the Court’s jurisdiction and the Court found that
this issue concerned the substance of the case. Thus, it appeared in 1998 that the Court
may have been willing, (p. 125) had the case progressed to the merits stage, to examine the
question of the UNSC Resolutions’ primacy over the Montreal Convention. This approach
would allow the Court to submit the UNSC Resolutions to judicial scrutiny. However, it is
also arguable that, as the Court’s jurisdiction was based in the Convention (a treaty), a
more narrow view of jurisdiction is perhaps more appropriate, which would restrict judicial
scrutiny of the UNSC Resolutions. Nevertheless, the majority judgment in 1998 contained
enough promise of judicial review to provoke strong dissents from both the UK and US
judges, with Judge Schwebel warning that although the UN Charter was a ‘living
instrument’, such review would not be ‘evolutionary but revolutionary’ by upsetting the
primacy of the UNSC in matters of peace and security.
The 1998 decision avoided the substantive issues and left them for the merits phase. From
the separate judgments it is clear that there was internal disagreement as to the
appropriate limits to the Court’s jurisdiction—whether or not the Court is restricted to
declarations on the rights and duties of the parties under the Montreal Convention, or
whether its jurisdiction extends to allowing it to determine the relationship between the
UNSC Resolutions and the Convention. The latter approach appears to have been favoured
by the Court, which may have led to a significant confrontation between the ICJ and UNSC.
However, the temporary political rapprochement between the states involved led to the
suspects being extradited and tried, and the ICJ was asked to remove the case from its list.
After lengthy negotiations and a change in the international mood (caused by the perceived
intransigence of the UK and US), the states agreed to a trial of the two Libyan suspects by a
Scottish court sitting in The Hague. UNSC Resolution 119219 stated that sanctions would be
suspended when the accused were handed over for trial and other conditions20 were met.21
Libya formally admitted responsibility for the Lockerbie bombing in a letter to the president
of the UNSC in 2003, stating that it ‘accepted responsibility for the actions of its officials’.22
However, it has subsequently been claimed that Libya’s actions were motivated by a desire

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 to see the sanctions removed as they were producing devastating consequences for the
Libyan people and economy.23
The US and UK were able, through their permanent membership of the UNSC, to utilise the
Chapter VII powers of the UNSC in order to attempt to force Libya to hand over the two
suspects and to bring about a result that suited both their political and security agendas.24
These two states made the decision to follow a different path (p. 126) and not to pursue the
process laid out by the Montreal Convention 1971. In doing so, they arguably undermined
the criminal justice approach, the aut dedere aut judicare provisions of the 1971
Convention, and made it appear ‘cumbersome’ and ‘ineffective’.25 The US and UK made
explicit demands from the start of the process and seemed determined to involve the UNSC
if their demands were not met. Under art. 5(2) Montreal Convention 1971, Libya had the
legal right, as the two men were on Libyan territory, to try the suspects in a domestic court
and under its domestic law. The UK and US relied on arts. 25 and 103 of the UN Charter in
seeking a UNSC resolution to thereby circumvent the established treaty regime. However,
although art. 103 of the UN Charter gives UNSC Resolutions primacy over pre-existing
international obligations, it does not provide that such resolutions are supreme and
unquestionable. As the UNSC is not subject to effective judicial scrutiny, and the ICJ was, in
the event, unable to assert its jurisdiction in this area, the Lockerbie cases demonstrate
that influential states utilizing powerful international organizations are able to circumvent
the provisions of international law.

Footnotes:
1
  Such as in S/RES/678 (1990), which authorized member states to utilise ‘all necessary
means’ to ensure compliance with the previous Resolutions dealing with Iraq’s invasion of
Kuwait.
2
  See, for example, B.H. Western, ‘Security Council Resolution 678 and Persian Gulf
Decision Making: Precarious Legitimacy’ (1991) 83 American Journal of International Law
516; O. Schachter, ‘United Nations Law in the Gulf Conflict’, (1991) 85 American Journal of
International Law 432; M. Weller, ‘The Kuwait Crisis: A Survey of some Legal Issues’,
(1991) 3 The African Journal of International and Comparative Law 1, on UNSC action on
Iraq’s invasion of Kuwait.
3
  D.R. Andrews, ‘A Thorn in the Tulip—A Scottish Trial in The Netherlands: The Story
Behind the Lockerbie trial’, (2004) 36 Case Western Reserve Journal of International Law
307.
4
  A/46/827 S/23308 (1991).
5
  A/46/828 S/23309 (1991).
6
  S/RES/731 (1992).
7
  Questions of Interpretation and Application of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America;
Libyan Arab Jamahiriya v United Kingdom), Application Instituting Proceedings, 3 March
1992, http://www.icj-cij.org/docket/files/89/13253.pdf
8
  31 March 1992.
9
  Letters dated 20 and 23 December 1991 from France, the United Kingdom of Great
Britain and Northern Ireland, and the United States of America, Decision of 11 November
1993 (3312th meeting): Resolution 883 (1993) repertoire. Available at https://www.un.org/

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 en/sc/repertoire/93-95/Chapter%208/AFRICA/93-95_8-7-
LETTERS%20FRANCE%20UK%20US.pdf
10
  Case Concerning Questions of Interpretation and Application of the 1971 Montreal
Convention Arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v United
Kingdom), Request for the Indication of Provisional Measures, Order of 14 April 1992,
[1992] ICJ Rep 3.
11
  T.M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 American
Journal of International Law 46.
12
  Marbury v Madison, 5 US 137 (1803) is seen as the constitutional moment when the US
Supreme Court asserted its judicial review competence.
13
  T.M. Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN
Legality?’ (1992) 86 American Journal of International Law 519.
14
  See N.D. White, ‘To Review or Not to Review? The Lockerbie Cases Before the World
Court’, (1999) 12 Leiden Journal of International Law 201.
15
  S/RES/748 (1992) and S/RES/883 (1993).
16
  That the date of filing is the relevant date for judging admissibility, Case Concerning
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom; Libyan Arab
Jamahiriya v United States of America), Judgment of 27 February 1998, [1998] ICJ Rep 115,
para. 38; Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and
Admissibility, [1988] ICJ Rep 95, para. 66.
17
  Lockerbie (n. 16), paras 44–5.
18
  Ibid., paras 38–9.
19
  SC Resolution of 27 August 1998.
20
  Making evidence and witnesses available to the court upon request for the purposes of
the trial (para. 4).
21
  On the establishment of this court see A. Aust, ‘Lockerbie: The Other Case’, (2000) 49
International & Comparative Law Quarterly 278. See further S.D. Murphy, ‘Verdict in the
Trial of the Lockerbie Bombing Suspects’, (2001) 95 American Journal of International Law
405.
22
  Libya Letter: full text, BBC News, 16 August 2003. Available at http://news.bbc.co.uk/1/
hi/scotland/3155825.stm
23
  For example Saif al-Gaddafi said that Libya had admitted responsibility in order to see
the trade sanctions removed, The Conspiracy Files: Lockerbie, 31 August 2008, BBC2.
Libyan Prime Minister Shukri Ghanem stated that Libya had paid compensation as the
‘price for peace’ and to secure the end of sanctions, 24 February 2004, BBC Radio 4.
24
  M.P. Scharf and A.E. Miller, ‘Foreword: Terrorism on Trial’, (2004) 36 Case Western
Reserve Journal of International Law 287.
25
  N.D. White, ‘Terrorism, Security and International Law’ in A. Hehir, N. Kuhrt, and A.
Mumford (eds), International Law, Security and Ethics (London, Routledge 2011), 11.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Gujarat National Law University; date: 03 July 2020