The United Nations
Extraordinary Powers of the UN Security Council: With Special Reference to the Lockerbie Case
This article examines the extraordinary powers of the United Nations Security Council with special reference to the Lockerbie Case. An examination into the new world order built by major world powers and its legal backing. It primarily deals with the provisions and legalities laid down under the primary instrument that is the UN Charter. Critical inspection has been done specifically regarding the Lockerbie Case and involves the appearance of the International Court of Justice in reviewing the International law and proving the sanctity of the latter.
The UN Security Council is one of the Principal Organs of the United Nations and holds a central position under the United Nations regime. Article 24 of the UN Charter affirms its primary responsibility in the maintenance of international peace and security. The Security Council comprises of 15 members, the five permanent members and ten non-permanent members. It has played a pivotal role in the maintenance of international peace and its manifold functions has established its sacrosanctity in contemporary international law.
Instrumental provisions with relevance to the case
The case of (Libyan Arab Jamahiriya v. United States of America) that is the Lockerbie incident signifies the extraordinary powers of the UN Security Council as it has the legal authority to take binding measures not only on the member states but also according to Article 2, paragraph 6, of the UN Charter, it states that the United Nations shall ensure that non-member States act in accordance with the Charter principles in the field of peace and security.
The Security Council has very often called upon third states and international organizations to act consistently with its resolutions. Article 25, part of chapter V reads that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. These extraordinary and supreme powers of the Security Council form the backbone of the United Nations in performance of the primary responsibility, that is the maintenance of International peace and security. The powers and the functions of the Security Council fulfil the phrase “Law is backed by Sanction”.
Furthermore, apart from this, Article 48 compels member states to comply with the measures decided by the council. And as under Article 2, paragraph 7, of the UN Charter, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”. This is a sacrosanct feature of the UN Security Council under the United Nations.
In 1988, a few days before Christmas, Pan Am flight 103 was destroyed by a mid-air explosion and crashed on the town of Lockerbie in Scotland. In November 1991, two Libyan nationals were charged in the United Kingdom and in the United States for having allegedly planted the bomb on board the aircraft that caused its destruction and the death of 259 passengers and crew, and also the death of 11 citizens of the Scottish town. The extradition of the suspects was requested. Libya refused to cooperate with the two Western powers and claimed that under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, it had the right to prosecute and try the two accused nationals and to receive supporting evidence from the UK and the US.
In the meeting on 21 January 1992, the Security Council adopted Resolution 731, deploring the lack of cooperation by the Libyan government and urging it “immediately to provide a full and effective response” to the cooperation requests it had been addressed. On 3 March 1992, Libya instituted proceedings at the International Court of Justice against the US and the UK.
Involvement of ICJ
Though the International Court of Justice was seized of the dispute brought out by Libya against the United Kingdom and the United States of America, it had the jurisdiction by virtue of the optional clause as Article 14 of Montreal Convention provided for ICJ jurisdiction in case of disputes about the interpretation or application of the Convention. Libya requested for provisional measures and the court was on the stage of deliberations.
The UN Security Council adopted Resolution 748 which affirmed that “the failure by the Libyan authorities to comply with the previous resolution, that is Resolution 731 which was not clearly binding as such constituted a threat to international peace and security”. The UN Security Council acted under Chapter VII of the Charter and decided that Libya must comply without any further delay with the extradition requests and commit itself to cease all forms of terrorism.
This Resolution strictly imposed on all member States of the UN to take several sanctions against Libya in order to induce Libyan compliance. Furthermore, pursuant to Article 2, paragraph 6, of the Charter, the Council called upon all non-member States and all international organizations willingly to conform with the sanctions of the resolution. The Resolution 748 which invoked Chapter VII of the Charter which is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression” is a central part of the charter under which the resolutions are binding on the member states.
The International Court of Justice after the Resolution 748 delivered its order and rejected the claims of Libya regarding the provisional measures on the sole grounds established by Article 103 of the UN Charter which specifically states that “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.
According to the Court, the obligations laid down under Resolution 748 subsequently prevailed over the obligations of the Montreal Convention after the adoption of Resolution 748, the rights claimed by Libya under the Montreal Convention cannot be regarded as appropriate for protection by the indication of provisional measures. Any actions or orders by the court upholding the claim of provisional measures or the rights of Libya under the Montreal Convention would be a blatant breach of not only the rights of the United Kingdom and the United States of America but also a violation of the provisions laid down under the UN Charter. It is manifestly accepted that Libya now had to conform with the Resolution 748 which replaced its obligations from the obligations set under the Montreal Convention.
The assessment of the case by the International Court of Justice depicts the primacy of the UN Charter and its provision over the obligations and rights under other International conventions. This also throws light on the issue of conflicting obligations dealt under Article 30 of the Vienna Convention on the Law of Treaties. No other treaty but the Charter and the obligations flowing from it enjoy such automatic supremacy.
The legal primacy is derived from the primary instrument, that is the Charter of the United Nations, the drafters while framing the charter envisioned the ultimate need of the extraordinary powers vested within the Organization in this horizontal, non-hierarchical regime of International Law for the maintenance of international peace and security. There are ongoing debates about whether these extraordinary powers of the Security Council is a limitation to the fundamental principle of equal sovereignty of states guaranteed by Article 2 paragraph 1 of the UN Charter which states: “The Organization is based on the principle of the sovereign equality of all its Members”. This can be inspected as a limitation to International Law but rather this deserves more likely the tag of qualification of International Law.
Vishwom Revankar - Intern Commercial Law - Bright Network | LinkedIn
I'm a young and dynamic under graduate law student pursuing my legal studies in Bangalore Institute of Legal Studies…
This story has been written by Vishwom Revankar, 2nd Year Law Student at Bangalore Institute of Legal Studies. He is an aspiring lawyer. His fields of interests are Law, International Relations, Politics, Human Rights, Environment etc.
He is the founder of the UBB Organization. Writing and research is my passion. He is a member of the Indian National Bar Association, American Bar Association as well as a volunteer in the Internet Society.