(2)
Whether or not a State can compel extradition is a matter for resolution by the general principles of international law and not necessarily those stipulated in the Montreal Convention.
It appears that the question in Judge Oda’s mind was therefore whether the Security Council, by its Resolution 748 (1992) which required Libya to extradite its
92I.C.J. Reports 1980, 116. 93I.C.J. Reports 1980, 122. By letter of 2 April 1992, a copy of which was transmitted to Libya by the Registrar, the Agent of the United States drew the Court’s attention to the adoption of Security Council Resolution 748 (1992) the text of which he enclosed. In that letter the Agent for the United States stated: That resolution, adopted pursuant to Chapter V11 of the United Nations Charter, “decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) of 21 January 1992 regarding the requests contained in documents S/23306, S/23308 and S/23309.” It will be recalled that the referenced requests include the request that Libya surrender the two Libyan suspects in the bombing of Pan Am .ight 103 to the United States or to the United Kingdom. For this additional reason, the United States maintains its submission of 28 March 1992 that the request of the Government of the Great Socialist Peoples’ Libyan Arab
Jamahiriya for the indication of provisional measures for protection should be denied, and that no such measures should be indicated. See I.C.J. Reports 1980, 125. 94Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed at
Montreal on 23 September 1971, ICAO, Doc 8966. Article 8 of the Montreal Convention stipulates that the offences under the Convention shall be deemed to be included as extraditable offences in any extradition treaty existing between the Contracting States and that States undertake to include these offences as extraditable in any extradition treaty to be concluded by them. Article 11 of the same Convention requires Contracting States to afford one another the greatest measures of assistance in connection with criminal proceedings brought in respect of the offences, stating further that in such instances the law of the State requested shall apply at all times.
A. State Responsibility
nationals either to the United States or to the United Kingdom, had the authority to override an established principle of international law. The answer to this question was, in Judge Oda’s view, in the af.rmative when he opined:
I do not deny that under the positive law of the United Nations Charter a resolution of the Security Council may have binding force, irrespective of the question whether it is consonant with international law derived from other sources. There is certainly nothing to oblige the Security Council, acting within its terms of reference, to carry out a full evaluation of the possibly relevant rules and circumstances before proceeding to the decisions it deems necessary. The Council appears, in fact, to have been acting within its competence when it discerned a threat against international peace and security in Libya’s refusal to deliver up the two Libyan accused. Since, as I understand the matter, a decision of the Security Council, properly taken in the exercise of its competence, cannot be summarily reopened and since it is apparent that resolution 748 (1992) embodies such a decision, the Court has at present no choice but to acknowledge the pre-eminence of that resolution.95
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