¹ UN Charter Art. 39. The relative power originally assigned to smaller states in the Charter system continues to be a point of scholarly controversy. Judgments here often depend on baselines. Goodrich, Hambro and Simon, for example, observe:

Leland M. Goodrich, Edvard Hambro & Anne P. Simons, The Charter of the United Nations 8 (3d rev. ed. 1969).

² Uniting for Peace, GA Res. 377 (V), UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950), reprinted in 1950 UN Y.B. 193. In Uniting for Peace, the General Assembly decided that if the Security Council was unable to exercise its primary responsibility for the maintenance of international peace and security when there appeared to be a threat to the peace, breach of the peace or act of aggression, the Assembly would take up the matter immediately with a view to making recommendations to its members for collective security, including the possible use of armed force.

From an international constitutional standpoint, Uniting for Peace was an imperfect initiative, for though it could overcome the paralyzing effect of a veto, it surrendered the self-protection of the Organization assured by the veto. Were Uniting for Peace applied, it could actively contrapose the Organization and one of the great powers. In the Suez crisis, the Assembly, using Uniting for Peace, did oppose two of the Permanent Five, France and the United Kingdom, but the impression of Assembly dominance over the Security Council here is, of course, completely illusory. The effective powers in the Security Council, the United States and the Soviet Union, were joined in opposition to France and the United Kingdom and used the Assembly or, if one prefers, enabled it, by their support, to employ Uniting for Peace in ways that otherwise could not have been used. For discussion of the implications of a real conflict, see text at notes 42–43 infra.

³ Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151, 163 (Advisory Opinion of July 20) [hereinafter Certain expenses].

⁴ GA Res. 1991 A (XVIII), UN GAOR, 18th Sess., Supp. No. 15, at 21, UN Doc. A/5515 (1963).

⁵ See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 433, para. 93 (Nov. 26) [hereinafter Nicaragua Jurisdiction].

⁶ Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Dec. 20).

⁷ Nicaragua Jurisdiction, 1984 ICJ Rep. 392.

⁸ Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240 (June 26).

⁹ See UN Doc. S/22412 (1991); see also SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 847 (1991).

¹⁰ See SC Res. 692 (May 20, 1991), reprinted in 30 ILM 864 (1991); see also UN Doc. S/23608 (1992).

¹¹ For description, see Anthony Aust, The Procedure and Practice of the Security Council Today (unpublished manuscript, on file with present author).

¹² Statement at the Hague Academy (July 21, 1992).

¹³ The suit was initiated on March 3, 1992. The Court’s two decisions on the request for interim measures, one regarding the United States and one regarding the United Kingdom, were delivered on April 14, 1992. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114 (Orders of Apr. 14) [hereinafter Lockerbie]. The Orders are nearly the same.

¹⁴ Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, 974 UNTS 177 [hereinafter Montreal Convention].

¹⁵ SC Res. 731 (Jan. 21, 1992), reprinted in 31 ILM 732 (1992).

¹⁶ Montreal Convention, supra note 14, Art. 14.

¹⁷ In modern international law, the rapid proliferation of institutions has already begun to generate an incipient doctrine of lis alibi pendens to deal with such conflicts. See, e.g., American Convention on Human Rights, Nov. 22, 1969, Art. 46(1)(c), OEA/Ser.K/XVI.1.1, doc. 70, rev.1, corr.l (1970), reprinted in 1 The Inter-American System, pt. II at 51 (F. V. Garcia-Amador ed., 1983).

¹⁸ Lockerbie, 1992 ICJ Rep. at 126, para. 39. The Court said that Charter Article 25 extends “prima facie” to Resolution 748. Judge Bedjaoui, dissenting, id. at 157, reached the same conclusion, on the ground that rights meriting protection had been “abolis” by a resolution of the Security Council. (The English translation curiously escalates Judge Bedjaoui’s “abolis” to “annihilated.”)

¹⁹ SC Res. 748 (Mar. 31, 1992), reprinted in 31 ILM 750 (1992).

²⁰ 1992 ICJ Rep. at 126–27, para. 43.

²¹ Indeed, Judge Bedjaoui would not even have admitted Resolution 748, since it was passed after cloture of proceedings. Id. at 151.

²² 1992 ICJ Rep. at 140 (Shahabuddeen, J., sep. op.).

²³ This seems to have been the Secretary-General’s objective and impression. In his report to the Security Council of March 3, 1992, he concluded: “From the foregoing, it will be seen that while resolution 731 (1992) has not been complied with, there has been a certain evolution in the position of the Libyan authorities …. The Security Council may wish to consider this in deciding on its future course.” UN Doc. S/23672, at 3, para. 6 (1992).

²⁴ For example, compare the wording of paragraphs 1 and 2 of the consideranda of Resolution 731, supra note 15, and its operative paragraph 3 with Articles 39 and 40 of the UN Charter. But see Christian Tomuschat, The Lockerbie Case before the International Court of Justice, Rev. Int’l Comm’n Jurists, June 1992, at 38, for a different interpretation.

²⁵ The operative paragraph of Resolution 748 ordered compliance with the third operative paragraph of Resolution 731.

²⁶ Nicaragua Jurisdiction, 1984 ICJ Rep. at 433–34, paras. 93–94 (rejecting U.S. argument that complaints involving use of force can only be resolved by Security Council action); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 26, para. 32 (June 27) [hereinafter Nicaragua Merits].

²⁷ United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 21, para. 40 (May 24). There, the Security Council’s manifest acquiescence, indeed express satisfaction, in the Court’s assuming jurisdiction over certain elements of the dispute was a key factor in confirming that jurisdiction despite the fact that the Security Council was “actively seized of the matter.” Id. at 21. The reliance on this ground in Nicaragua seemed less plausible, on the facts of that case.

²⁸ See, e.g., Declaration of Judge Ni, 1992 ICJ Rep. at 132.

²⁹ This was, indeed, a case in which anything else the Court might have done, whatever its intention, would probably have undermined the program the Security Council had undertaken. Thus, proposals in separate dissenting opinions by Judges Ajibola, Bedjaoui and Weeramantry for other provisional measures, issued ex proprio motu, which, purportedly, would not have impeded the Council’s actions, would have been constitutionally inappropriate and were properly ignored by the majority. The proposals of Judge ad hoc El-Kosheri would have displaced parts of the program that the Council had adopted.

³⁰ Judge Bedjaoui relied on the alleged distinction between disputes of a “political” and a “legal” nature. 1992 ICJ Rep. at 143–44. See also the dissenting opinion of Judge Weeramantry, 1991 ICJ Rep. at 165–67.

³¹ See, in this regard, the thoughtful view of Judge Lachs in his separate opinion, 1991 ICJ Rep. at 138. Consider also the Court’s earlier ruminations on the nature of the international judicial process in Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 38 (Dec. 2).

³² Such doctrines of prudential deference to political branches can be found in various well-developed constitutional systems, for example, in the U.S. Supreme Court’s “act of state” and “political question” doctrines. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (act of state); and Baker v. Carr, 369 U.S. 186 (1962) (political question); but see Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976).

³³ Professor Franck, in a characteristically thoughtful and eloquent comment in this Journal, contends that Lockerbie’s ratio is that Charter Article 103 only trumps Libya’s rights for purposes of interim measures. Thomas M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?, 86 AJIL 519, 521 (1992). While, depending on its terms, the termination of a particular chapter VII decision could lead to a revival of the rights that had been, as it were, “suspended” by it, I find it difficult to see how one can contest, under the terms of the Charter, or Lockerbie, that Articles 25 and 103 always trump rights arising from other agreements. Professor Franck, relying on Judge Oda’s declaration, suggests that the synergy of Articles 25 and 103 would not trump “sovereign rights under general international law.” Id. at 522. The idea that there is a body of general international law that hovers, like a “brooding omnipresence,” over and limits the Charter and the organs that apply it is quite interesting. It was argued, of course, by the United States in Nicaragua but was rejected by the Court. Nicaragua Merits, 1986 ICJ Rep. 14.

³⁴ See, e.g., Judge Oda’s declaration: “a decision of the Security Council, properly taken in the exercise of its competence, cannot be summarily reopened.” 1992 ICJ Rep. at 129; Judge Lachs, 1992 ICJ Rep. at 138; Judge Shahabuddeen, 1992 ICJ Rep. at 142.

³⁵ Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental POWERS 275 (1950).

³⁶ Certain expenses, 1962 ICJ Rep. 151.

³⁷ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16 (Advisory Opinion of June 21).

³⁸ 5 U.S. (1 Cranch) 137 (1803).

³⁹ H. L. A. Hart, The Concept of Law 120 (1961).

⁴⁰ 1992 ICJ Rep. at 138.

⁴¹ 1992 ICJ Rep. at 142.

⁴² Pentagon Imagines New Enemies to Fight in Post-Cold-War Era, N.Y. Times, Feb. 17, 1992, at Al, A8; War in 1990’s: New Doubts, id., Feb. 18, 1992, at Al, A12. The planning document was not released by the Times. Others who claim to be familiar with it have stated that it was misrepresented. See Francis Fukuyama, The Beginning of Foreign Policy, New Republic, Aug. 17, 1992, at 24, 24–25, 28, 30, 32.

⁴³ See text at and note 2 supra.

⁴⁴ See Lake Lanoux (Spain v. Fr.), 12 R.I.A.A. 281 (1957).

⁴⁵ Myres S. McDougal, Harold Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ. 253 (1967), reprinted in Myres S. McDougal & W. Michael Reisman, Essays in International Law 191 (1981).