Judge Oda was emphatic that the Security Council Resolution had overriding effect over any principle of international law. He observed however, that if the Court appeared to have prima facie jurisdiction over a legal issue that was the subject of its consideration, the Court was not precluded from indicating provi-sional measures applied for, merely because of the absolute preemptive powers of the Security Council Resolution. The learned judge concluded that, in this case, the application of the Libyan Government would have been rejected by the Court in any case, as the application was based on the Montreal Convention and not on the general customary international law principle aut didere aut judicare. Judge Oda was also unequivocal in his view that the Security Council Resolution would prevail over any established rule of international law.
Judge Ni on the other hand, observed that the Security Council and the Inter-national Court of Justice could simultaneously exercise their respective functions without being excluded by each other. Citing the arbitration that came up before the ICJ in respect of the United States diplomatic consular staff in Teheran, Judge Ni quoted from that judgment:
...it is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important and sometimes decisive factor in promoting the peaceful settlement of the dispute.
This is indeed recognized by Article 36 of the Charter, paragraph 3 of which speci.cally provides that:
In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.96
95I.C.J. Reports 1980, 129.
96I.C.J. Reports 1980, paragraph 40.
In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security... .
The learned judge reasoned the Charter did not confer exclusive responsibility upon the Security Council and observed that the Council has functions of a political nature assigned to it whereas the Curt exercised purely judicial functions. Accord-ing to Judge Ne therefore, both organs could perform their separate but comple-mentary functions with respect to the same events. On the above reasoning, Judge Ne concluded that since the Court held independent jurisdiction, it could interpret the applicable law, which in this case was Article 14(1) of the Montreal Conven-tion.97
The ICJ could therefore, according to Judge Ni, by no means be pre-empted by a Security Council resolution, in its exercise of jurisdiction and application of the principles of international law.
Judges Evensen, Tarassov, Guillaume, and Aguila Mawdsley expressed their collective opinion that prior to the adoption by the Security Council of Resolution 748 (1992), The United States and the United Kingdom, although having the right to request extradition, could only take measures towards ensuring such extradition that were consistent with the principles of international law. With the Resolution in force however, the judges concluded that the Court was precluded from indicating provisional measures against the United States.
Judge Lachs, although in a separate opinion declared that the ICJ was bound to respect the binding decisions of the Security Council, seems to have recognized the co-existence of the two institutions, and the right of the Court to render its opinion irrespective of the application of Security Council resolutions. Judge Lachs said:
The framers of the Charter, in providing for the existence of several main organs, did not effect a complete separation of powers, nor indeed is one to suppose that such was their aim. Although each organ has been allotted its own Chapter or Chapters, the functions of two of them, namely the General Assembly and the Security Council, also pervade other Chapters other than their own. Even the International Court of Justice receives, outside its own Chapter, a number of mentions which tend to con.rm its role as the general guardian of legality within the system. In fact the Court is the Guardian of legality for the international community as a whole, both within and without the United Nations. One may therefore legitimately suppose that the intention of the founders was not to encourage a blinkered parallelism of functions but a fruitful interaction.
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