(Libya v. United States)
1992 I.C.J. Rep. 114 (April 14)
-An airplane exploded over Scotland, killing many American citizens.
-The US and the UK traced the bomb back to two Libyans.
-The Libyan government refused to extradite the Libyans for trial.
-Libya argued that under the Convention for the Suppression of Unlawful Acts against Civil Aviation (the Montreal Convention) (974 U.N.T.S. 177 (1971)), Libya could either extradite or prosecute the suspects themselves.
-Libya chose to prosecute the suspects themselves.
-The United States and the UK accused the Libyans of "Forum Shopping" and took the case to the United Nations Security Council (UNSC).
-UNSC issued two resolutions (UNSC Resolutions 731/748). These urged Libya to hand over the bombing suspects.
-UNSC also embargoes arms sales to Libya, told member states to close offices of the Libyan Airlines.
-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 and not have to turn them over.
-The I.C.J. found that the UNSC resolutions were permissible, and the Libya must hand over the suspects.
-Basically, the I.C.J. 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 I.C.J. does not perform Judicial Review of UNSC decisions. They are binding and not reviewable.
-If UNSC decisions were reviewable, it would not give the same sense of finality that is required for them to be acted upon.
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