DE MAXIMIS NON CURAT PRAETOR...? EL CONSEJO DE SEGURIDAD Y EL TIJ EN EL ASUNTO LOCKERBIE

• Published in: Revista española de derecho internacional 1992-07, Vol.44 (2), p.327-350
• Main Author: Andrés Saénz de Santa María, M. Paz
• Format: Article
• Language: Spanish
• Subjects: DOCTRINA
• ISSN: 0034-9380; 2387-1253

This paper analyzes the institucional questions raised in the Lockerbie affair, specially the action of the Security Council and its limits as well as the problem of the relation between its organ and the ICJ. With respect to the Council's decisions, the exam of the resolution 748 (1992) raises some doubts about its legality and legitimacy in relation to the existence of the conditions required to enforce Chapter VII of the Charter, the approval of the cited resolution 3 days after the closing of the hearings on Libya's request for provisional measures and its content in opposition to the international principles in force on extradition. The ICJ's intervention on the Libya's request points out the question of the compatibility between the judicial organ and the Security Council when acting simultaneously on the same subject and the Court's role as the guardian of the Charter's legality. In this way, the ICJ's decision about not adopting interim measures is conditioned by articles 25 and 103 of the UN Charter but the most important is that the Court finds that it is with jurisdition to decide on the merits. In conclusion, by adopting the resolution 748 (1992) the Security Council has provoked a conflict of competences and has risked the interorganical balance drawn in the Charter as well as the judicial prestige.