1 1BCL (Oxon) PhD (Nottingham), Faculty of Laws, Queen Mary & Westfield College, University of London; formerly of the University of Wales, Aberystwyth; BA (Oxon), LLM (Cantab), PhD (London); King's College, University of London. The authors are indebted to Mr. Adrian Briggs of St. Edmund Hall, University of Oxford. Of course, the usual disclaimer applies.
I UN Docs. S/RES/731 (1992), S/RES/748 (1992) and S/RES/883 (1993).
2 This is possibly a confusion in so far as Article 5(2) may perhaps be better described as imposing a duty on Libya, in which case the duty would already have been fulfilled. Libya would then have had an immunity, in relation to which the United Kingdom and the United States would have had a disability. The classic treatment of the conceptual distinctions between different uses of the term "right" and its corollaries remains that of Hohfeld; see W.N. Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning (New Haven, 1978). 3 This is both the "strongest" as well as the "weakest" strand of Libya's web of arguments. It is the weakest in the sense that a proper reading of the Convention may yield the conclusion that this so-called "obligation" is conditional upon the point of controversy (whether Libya should, in light of all the circumstances of the case, and not only on the basis of the Montreal Convention considered in sharp isolation from the general rules and principles international law, surrender the two accused persons). In short, it is weak because moot. But it is the strongest individual argument to the extent that if the proper conditions for the application of Article 5(3) are met, a clear duty (in the strictest sense) exists on the part of Libya to try the two accused and an attempt by the United States and the United Kingdom to interfere with the exercise of such a duty would be a violation of the Convention in so far as it would be an attempt to interfere with the prescription of rights and duties under the Convention by parties to the Convention. 4 Such "offences" of which are defined, at least for the purposes of the present Convention, in Article 5( 1) of the Convention.
5 See (e.g.) Exchange of Greek and Turkish Populations Advisory Opinion, PCIJ Reports, Ser. B, No. 10 (1925), at 20. Also, for the classic authority on this point, see the Alabama Claims Arbitration (US v GB), Moore, ( 1872) 1 Int. Arb. 495, at 656 where the Tribunal expressed its view that "the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed". 6 In other words, the Convention does not place Libya under a duty to extradite where the persons are Libyan nationals, since "the Libyan Constitution does not permit their extradition''; (para. 26 of the Judgment in Libya v UK (Preliminary Objections)). Curiously, the Court as a whole read the Libyan contention as a claim to "the right not to extradite", being moreover a right derived under Article 8 of the Convention. This reading is, it is submitted, laconic, and needs some refinement. It is justifiable only if two basic hurdles are cleared. First, the provision that allows for something akin to the Libyan reading is Article 8(3) which reads: "Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State''. This may be called a privilege or a liberty on the part of Libya. In Hohfeld's scheme, having a privilege means having no duty. If Libya has no duty, then the United States and the United Kingdom do not have a right. The next step would then be to establish the nature of this liberty. In the Lotus case (PCIJ reports, Ser. A, No. 10 (1927)) the predecessor to the present Court said: "Inter- national law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law". As such, "[restriction upon the independence of States cannot therefore be presumed". At first sight, this appears to be (what Vattel called) an "original liberty" of sovereign States. But this is not so. The same Court went on to say that: "... the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention". The right (not to extradite) sought under the Convention is not necessarily dependant upon a theory of the original liberties of States, such as that of Libya to try the two accused. It depends, instead, on the ability of Libya to establish a permissive rule for its (presumably) extra-territorial claim to jurisdiction. And that is
provided for by Article 8 itself. On the contrary, it is the right sought, at least by the United States, that has not been demonstrated. See section 4.3.1, below. 7 "With the exception of alleged crimes under international law, in the absence of treaty, surrender of an alleged criminal cannot be demanded as of right", where such "crimes under international law" are confined to "war crimes, crimes against humanity, and crimes against peace"; I. Brownlie, Principles of Public International Law (Oxford, 4th ed, 1990), at 315. 8 See, e.g., M. Weller, `"The Lockerbie Case: A Premature End to the 'New World Order'?" (1992) African Journal of International and Comparative Law 302. 9 It appears that it has become somewhat unfashionable to speak of "global government" and that, instead, we should (according to some) seek to speak in terms of "governance"; that is, in terms of "the formal and informal bundles of rules, roles and relationships that define and regulate the social practices of State and non State actors in international affairs", as Slaughter, Tulumello and Wood have put it in their "International Law and International relations Theory: A New Generation of Interdisciplinary Scholarship", (1998) 92 AJIL 367, at 371. Although we are not entirely au fait with the intricacies of regime theory, the significance of a (new) ruling on the formal separation of powers at the United Nations should not be diminished as a result.
10 Articles 14(1) of the Montreal Convention, which reads: "Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration, the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court." " Article 79(7) reads: "After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings." It was this last that the Court eventually opted for in its conclusion, as required under its Rules. '2 (I984) ICJ Reports, at 632-637 (dissenting opinion of Judge Schwebel arguing for a "restrictive approach" towards jurisdiction by way of the method of compromissory clause). ).
13 See UN Charter, Art. 92, which refers to the Court as "the principal judicial organ of the United Nations" which "shall function in accordance with ... the present Charter", and see G. Abi-Saab, "The International Court As A World Court", in V. Lowe & M. Fitzmaurice, Fifty Years of the International Coun of Justice (Cambridge: Grotius, 1996), 3. As for the potential extent or scope of the legal power of "judicial review", at least of Security Council action, derived under the Charter, it seems, in light of comparative constitutional history alone, and based on the history of the law courts of the various modern societies, that the Court is here concerned with the issue of judicial control of any institution exercising functions which have consequences of a public (international) law nature. That is, potentially at least, what is at stake; see, for example, the English Court of Appeal decision in R v Panel on Take-overs and Mergers, ex p Datafin plc  1 All ER 564, speech of Lloyd LJ. For a nudge in this direction, see T. Franck, "The Powers of Appreciation: Who Is The Ultimate Guardian of UN Legality?", (1992) 86 AJIL 519. 14 This is the thrust of the dissenting opinions of President Schwebel, Judge Oda and Judge Sir Robert Jennings. Unlike Judge Herczegh, they disagreed with the majority both as to jurisdiction and admissibility. While they found that the Court did not have jurisdiction because of the absence of any dispute under the Montreal Convention, they also found that the real dispute was about the effect of the Security Council resolutions. The failure of the Court to pronounce on this issue is thus lamentable. Judges Bedjaoui, Ranjeva and Koroma issued a Joint Declaration postponing the treatment of the effect of Security Council resolutions on Libya's claim to the Merits stage. See section 5 below. 15 Admissibility and mootness will be dealt with at length in a separate paper.
16 While there is a "waiting requirement" (six months from the date of request for arbitration by one of the parties, and where such request is not met) in respect of the pursuit of such claims, it is hardly of great interest for our present purposes. The reader may nonetheless wish to refer to para. 21 of the Judgment in Libya v UK, and para. 20 of the Judgment in Libya v US where the Court expressed its view that the respondents'/applicants' conduct had made the "time clause'' moot, namely by excluding outright the possibility of a dispute pertaining to the Montreal Convention in its submissions to the Court " As Professor Greenwood, arguing on behalf of the United Kingdom, puts it (albeit somewhat briefly), "it is ... axiomatic that in contentious proceedings the Court has jurisdiction only if the Applicant can identify some act by which both the Applicant and the Respondent have given a valid consent to the jurisdiction of the Court"; UK Oral Pleadings, para. 4.5. 18 Or as Professor Greenwood, again, put it on behalf of the United Kingdom: "Even then if such an act [granting consent] is identified, the Court will have jurisdiction only in respect of such claims as fall within the scope of that act of consent"; ibid.
19 Which reads: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court." zo See, for example, J. Merrills, International Dispute Settlement (Cambridge: Grotius, 2nd ed, 1993), at 112ff. For these reasons, the majority judgment as to jurisdiction is to be preferred to the dissenting opinions, in so far as the latter do not take account of these considerations and in so far as they endorse the arguments of the Respondents as to jurisdiction. 21 Libya v UK, para. 25; Libya v US, para. 24. zz See Libya v UK, paras. 26-33; Libya v US, paras. 25-28.
z3 This is since the World Court is not engaged in the business of choosing between the laws whose validity is provided for by the different national legal systems of the world, but (in the present context, and principally) between the application of general (or custom- ary) international law or some other source of law governing the issue of jurisdiction (on the one hand), and the specific treaty provisions of the Montreal Convention itself that are related to the same issue (on the other).
24 UK Oral Pleadings, paras. 4.18-4.36 (Greenwood). The judges who dissented on the jurisdiction point accepted these arguments. zs US Oral Pleadings, para. 1.16 (Mr. David Andrews) & paras. 3.lff. (Mr. Crook). Incidentally, it is at this juncture that the United States commences its argument to the effect that the Court must conclude the case here; namely, that its objections to the admissibility of Libya's claim are not so intertwined with the merits that they should not be addressed instantly, a matter of some interest to our discussion below.
zb UK Oral Pleadings, para. 4.11 (Greenwood). 27 Oil Platforms case, Judgment of 12 December 1996, para. 16; quoted in the UK Oral Pleadings, para. 4.11 (Greenwood). That case concerns the destruction of certain Iranian Oil Platforms by the United States Navy. zg This point is made clearly by President Schwebel in his dissenting opinion. z9 UK Oral Pleadings, para. 4.12 (Greenwood).
3o To say that the two claims cannot logically co-exist, unless presented in the alternative, is not the same thing as saying that the United Kingdom did not, at the very least, sail close to this illogicality in its oral presentation. For example, while Professor Greenwood briefly referred to the Court's previous decision in the Oil Platforms case as if that decision required that subsumption of the factual dispute under one of the substantive provisions of the Convention was sufficient to raise the jurisdiction of the Court (e.g. the claim that "the Court [in the Oil Platforms case] insisted that it had to ascertain whether the actions of the United States which Iran alleged were contrary to the Treaty did in fact fall within the scope of its provisions"; UK Oral Pleadings, para. 4.24, citing the Court's Judgment of 12 December 1996, para. 16) there were also references couched in the following manner, for example: The Court looked, [in the Oil Platforms case] not at the general assertions about the applicability of the Treaty, but at specific questions concerning its application by the United States. That required the Court to ask whether the conduct of the United States could constitute a violation of the treaty; [ibid., emphasis added]
and: Only where the Court held that the United States [sic] conduct was capable of amounting to such a violation did it find that it had jurisdiction; [ibid., emphasis added] and finally: ... in the present case it is necessary to consider whether the conduct of the United Kingdom is capable of being assessed by reference to specific provisions of the Montreal Convention in order to establish whether there is a dispute falling within Article 14, paragraph 1 [of the Montreal Convention]; [ibid., emphasis added]. The matter is treated more fully in the next section of this review. " While the references to Articles 5(2), 7, and 8(3) are to be read together, Article 11 ( 1 ) stands apart. '2 UK Oral Pleadings, para. 4.39, and (more generally) also paras. 4.40-4.43 (Greenwood).
33 UK Oral Pleadings, para. 4.44 specifically, but see also para. 4.41 (Greenwood). 34 If so, the United Kingdom must explain the authority of the Court for, on this view, the law becomes that found in the differing opinions of parties engaged in international legal dispute, not some external measure to be imposed from on high. This seems to contradict the stated function of the Court in the Court's Statute, namely "to decide [disputes] in accordance with international law" and to that extent the Court "shall apply" treaty law, customary law, "the general principles of law recognized by civilized nations", and (probably as subsidiary means for determining the law, or as "material sources" of the law) judicial decisions and the teachings of publicists; Article 38 (1), Statute of the Court. For an exploration of the conceptual difficulties raised by such a prospect of "relative international law", see O. A. Elias & C. L. Lim, The Paradox of Consensualism in International Law (The Hague, 1998), generally.
35 UK Oral Pleadings, para. 4.46 (Greenwood). 36 UK Oral Pleadings, para. 4.48-4.52 (Greenwood). " Being the hidden "rule-selection" question. 38 see Libya v UK, paras. 27ff. which, with one exception, contains no reasoning beyond stating the content of the provisions and reaching a conclusion (presumably, therefore, on that basis). As regards the exceptional treatment of Article 11, the Court confined its reasoning to the fact that its past jurisprudence is clear on the issue: the "critical date" is the time of the filing of the Libyan Application, and so the subsequent actions of the Security Council did not count; ibid., para. 38. The Court did not respond to the United Kingdom's contention that Libya had not claimed the application of Article 11 at the time of the alleged dispute.
'9 UK Pleadings, para. 1.5 (Sir Franklin Berman). 40 UK Pleadings, para. 3.3, (Mr. Bethlehem). 41 UK Oral Pleadings, para. 3. 18 (Bethlehem).
42 See, e.g., on this complimentary nature in spite of the separation of judicial and political functions, the Aegean Sea Continental Shelf case (ICJ Reports (1976), 3 at 12); Tehran Hostages case (ICJ Reports (1980), 7 at 21-22); Nicaragua v United States (ICJ Reports (1984), 392 at 431-435) 43 Compare UK Oral Pleadings, para. 1.17 (Sir Franklin Berman). But see also UK Oral Pleadings, paras. 2.5-2.8 (wherein the United Kingdom argued that the abstract, presum- ably legal, issues could not be separated from the factual reality of the dispute, being one which involves consideration of the role of the Security Council). 44 auk Oral Pleadings, paras. 4.55-4.59 (Greenwood). 45 auk Oral Pleadings, para. 4.59 (Greenwood).
46 This would be all the more ironic given the fact that the United Kingdom did not see the issue as having arisen at all; in the words of Sir Franklin Berman: "... while we are all aware of the high drama that has been created in some legal circles about the present proceedings and about the reviewability of the decisions of the Security Council, we do not ourselves view the matter in that light ..."; UK Oral Pleadings, para. 1.17. 47 UK Oral Pleadings, para. 1.5 (Sir Franklin Berman).
18 US Oral Pleadings, para. 3.2 (Mr, Crook).
49 US Oral Pleadings, para. 2.48 (Dr. Murphy). 50 The United Kingdom had argued that: "The problem which ... the Montreal Convention ... was designed to address was that some terrorists responsible for attacks upon aircraft were not being brought to trial because of what were perceived to be gaps in the system of jurisdiction which already existed under the rules of customary international law and the network of extradition arrangements under existing treaties. The purpose of the Convention was to remedy these deficiencies. It did not replace or supplant the existing rules by which jurisdiction could be established. Nor did it supersede the existing arrangements for extradition and the surrender of suspects. The Montreal Convention was designed to supplement the existing law, not to supplant it;" UK Oral Pleadings, para. 4.19 (Greenwood). 51 Brownlie, Principles of Public International Law (Oxford, 4th ed, 1990), at 315. s2 Compare US Pleadings, para. 1.20 (Andrews) and paras. 2.1-3.18 (Dr. Murphy), and UK Pleadings, para. 4.18-4.36 (Greenwood).
s3 See US Oral Pleadings, para. 1.20 (Andrews); and paras. 2.7-2.27 (Murphy). 54 See (e.g.) US Oral Pleadings, para. 2.3-2.4. ss Libya v US, paras. 26-32.
sb US Oral Pleadings, paras. 2.28ff. (Murphy), the exceptions being the argument in respect of Article 11 of the Convention (on which, see the Pleadings, paras. 2.39ff.), and in respect of Article 8(3) wherein the arguments are fuller when compared to the British Pleadings, see US Oral Pleadings, paras. 2.34-2.37. In respect of Article 11, the United States did not argue that it had to abide by the actions of the Security Council, as the United Kingdom had done, but that the United States had actually met its obligations under Article 11 to afford the greatest measure of assistance. 57 Libya v US, paras. 26-32.
sa See supra note 14. s9 See, for example, Nicaragua case, Jurisdiction, (1984) ICJ Reports, at 632-637 (dissent- ing opinion of Judge Schwebel who argues for a "restrictive approach" towards com- promissory clause jurisdiction); the issue is subjected to close scrutiny in J. Charney, "Compromissory Clauses and ICJ Jurisdiction", (1987) 81 AJIL 855, at 869ff., and who concludes, generally, that we should not ask parties submitting claims by way of the method of the compromissory clause to make a great showing for this will "intrude into the merits"; idem. at 887. Nonetheless, Charney does (crucially) concede that "there is considerable confusion about the Court's treatment of jurisdictional questions arising from such clauses" and that "jurisdiction should not be presumed"; idem, at 869 & 870, respectively. Would it not have been a benefit if the Court had been more explicit in its reasonings? Perhaps the Court is mindful of the controversy generated by the Nicaragua decision as regards compromissory clause jurisdiction. As Professor Reisman put it in the aftermath of the decision on jurisdiction in the Nicaragua case, "[i]n view of these developments, the United States would do well to undertake reconsideration of its wide- ranging use of Article 36( 1) mode of jurisdiction, before there are unpleasant surprises"; W. M. Reisman, "The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua", (1987) 81 AJIL 166, at 173; the article is obviously directed at the future of jurisdiction by way of compromissory clause under Article 36(1) of the Court's Statute. But as McWhinney has aptly reminded us, it was not the ICJ that was at a cross-roads there, but the foreign policy of the United States; E. McWhinney, Judicial Settlement of International Disputes (The Hague, 1991), at 123. Indeed, not all viewed Nicaragua jurisdiction as an unmitigated disaster, quite the contrary; see (e.g.) H. W. Briggs, "Nicaragua v United States: Jurisdiction And Admissibility" (1985) 79 AJIL 373; T.M. Franck, "Icy Day at the ICJ" (1985) 79 AJIL 379. In any case, a notable attack on the entire consensual basis of the Court that was unleashed by the Nicaragua case focused on the importance of genuine acceptance or willingness to submit to the Court's jurisdiction, as opposed to reliance on the legal fiction of consent; G.L. Scott & C.L. Carr, "The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause", (1987) 81 AJIL 57, albeit the case that the authors had in mind Article 36(1) of the Court's Statute in the main. However much such criticisms seem to have faded since
and however popular the Court may be today amongst States, that criticism requires, at the very least, a constant watchfulness over the transparency of the Court's reasoning; on which see T. Franck, The Power of Legitimacy Among Nations (New York: 1990); and, by the same author, Fairness in International Law and Institutions (Oxford: 1995). 60 The words of Sir Hersch Lauterpacht, The Development of International Law by the International Court of Justice (1958), pp. 43-47, made in a different context, ring true here: "For there is only limited persuasive power in the suggestion that such a course [i.e. basing a ruling on one out of a number of possible explanations] might have been preferable to what critics believe to be the controversial manner of the treatment of the main substantive issue. It is only seldom that a particular ground of decision is so obvious and so uncontroversial as to permit a court to rely on it to the total exclusion of alternate grounds supporting the same conclusion." 61 "Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning"; F. Kafka, The Trial (London, 1953), 7. In any case, perhaps some critics of international law might finally stop saying that international law is not truly "law" for it lacks the mechanism of effective sanctions. 62 G. Schwarzenberger, International Law (London, 3rd ed, 1957), Volume One, at 26-27.
63 This is all the more likely given the reports of an agreement between the parties to try the alleged offenders on neutral territory (the Netherlands). 64 And the attendant costs.