Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie
(Libya v. United States)
1992 I.C.J. Rep. 114 (April 14)

  • An airplane blew up over Scotland, killing a lot of Americans.
  • The US and UK traced the bomb back to two Libyans, but the Libyan government refused to extradite the pair for trial.
    • Libya claimed that under the Convention for the Suppression of Unlawful Acts Against Civil Aviation (aka the Montreal Convention) (974 U.N.T.S. 177 (1971)), they could either extradite or prosecute the suspect themselves.
      • They chose the latter option.
  • The US and UK accused the Libyans of forum shopping and took it to the United Nations Security Council (UNSC).
  • The UNSC issued two resolutions (UNSC Resolutions 731 and 748) urging Libya to hand over the suspects.
    • The UNSC also embargoed arms sales to Libya, and told member States to close Libyan Airlines offices.
      • Coercive powers are detailed in Chapter VII of the United Nations Charter.
    • How did the UNSC justify the resolutions?
      • Article 39 allows the UNSC to take enforcement actions to restore international peace. You could argue that international terrorism is a breach of the peace.
        • But how could you say that Libya's exercising their rights under a multilateral treaty is a threat to the peace?
  • Libya went to the International Court of Justice to protest the UNSC resolutions.
    • Libya claimed that it was fully within its rights under the Montreal Convention to try the suspects in Libya.
  • The ICJ found that the UNSC resolutions were permissible, and the Libya must hand over the suspects.
    • Basically, the ICJ found that UNSC resolutions trumped everything else, even multilateral treaties.
    • Article 103 of the United Nations Charter says, "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
    • Article 25 says that member States must follow UNSC resolutions.
  • The basic point of this decision is that the ICJ does not perform Judicial Review of UNSC decisions. They are binding and unreviewable.
    • If UNSC decisions were reviewable, it would not give the sense of finality that is required for them to be acted upon.
    • But doesn't this imply that the UNSC can run roughshod over 'unpopular' countries?