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Florida State University Journal of Transnational Law & Policy

Scott I. Bortz

Abstract

Reaction in the wake of a horrible tragedy has clarified the political hierarchy of the United Nations and helped avoid a collision of competence between the Security Council and the International Court of Justice (Court). The destruction of Pan Am Flight 103 over Lockerbie, Scotland, in December 1988, ultimately called the applicability of an international agreement into question, exacerbated an already volatile political relationship between the United States and Libya, and led to case wherein the Court was able to clarify its relationship with the Security Council. In Libya v. United States, (Lockerbie) a case that "may be the most important and jurisprudentially rich of any handed down by [the] Court since the end of the Cold War, the Court issued a decision that helped delineate the hierarchy of competence in the United Nations, and held that certain resolutions of the Security Council precluded the Court from taking judicial action. In Lockerbie, Libya alleged that the request by the United States of Libya to extradite two Libyan nationals suspected of placing a bomb on Flight 103 violated the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention). The Montreal Convention provides punishment for offenders who perform unsafe acts against civil aviation, and, inter alia, maintains guidelines which contracting states must follow to establish jurisdiction over certain offenses. Before the case was decided, the United Nations established defense-related trade barriers against Libya in response to Libya's refusal to extradite to the U.S. the two Libyans suspected of causing the destruction of Flight 103. Libya alleged that the United States breached its treaty obligations under the Montreal Convention, estopping the U.S. from asserting jurisdiction over the two Libyans, when a grand jury of the district court for the District of Columbia indicted the two suspected Libyan nationals. Libya requested the Court to issue provisional measures preventing the economic embargoes. The events surrounding the destruction of Flight 103 have thus led to the ascension to the Court of a case which allowed a decision that helps the world understand the authoritative hierarchy of the separate branches of the United Nations. This Note is not a traditional survey of specific law relevant to an individual case. Rather, based on the extraordinary recent global changes and the re-emergence of the United Nations as a powerful political force, this study examines the case that led to a clarification of the competence possessed by the branches of the U.N. As such, this Note serves multiple purposes in examining several interrelated topics. A survey of the investigation of the Lockerbie tragedy, the subsequent political events, and the actions of the United Nations provides a fascinating look at international relations, and is necessary in reference to Libya approaching the Court. Further, a brief survey of the Court's ability to take interim action in a case by issuing provisional measures is presented as a foundation for the following analysis of the case itself. Libya's reaction to the case is also detailed, and the Note concludes with a discussion of the reasoning used by the some of the deciding judges, illustrating how the Court delineates the powers of the branches comprising the United Nations and legitimately avoids a collision of competence between it and the Security Council.

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