Aviation Security Law 航空安全法(37)

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Two main organs of the United Nations have the delivery of binding decisions explicitly included in their powers under the Charter: the Security Council and the International Court of Justice. There is no doubt that the Court’s task is “to ensure
97Article 14(1) of the Montreal Convention requires any dispute between two or more Contracting States concerning the interpretation or application of the Convention which cannot be settled through negotiation to be, at the request of one of them, submitted to arbitration. The provision goes on to say that if within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
A. State Responsibility 47
respect for international law....”98
It is its principal guardian. Now, it has become clear that the dividing line between political and legal disputes is blurred, as law becomes ever more frequently an integral element of international controversies. The Court, for reasons well known so frequently shunned in the past, is thus called upon to play an even greater role. Hence it is important for the purposes and principles of the United Nations that the two main organs with speci.c powers of binding decision act in harmony – though not, of course, in concert – and that each should perform its functions with respect to a situation or dispute, different aspects of which appear on the agenda of each, without prejudicing the exercise of the other’s powers. In the present case the Court was faced with a new situation which allowed neither room for further analysis nor the indication of effective interim measures. The order made should not, therefore, be seen as an abdication of the Court’s powers; it is rather a re.ection of the system within which the Court is called upon to render justice.99

Judge Shahabuddeen, recognizing that there is no superior authority to that of the Security Council, added in his opinion that treaty obligations can be overridden by a decision of the Security Council’s sanctions. Addressing the critical question whether a decision of the Security Council may override the legal rights of States, Judge Shahabuddeen did not attempt an answer, but merely concluded that such a decision may stand in the way of the legal rights of a State or its subjects being judicially scrutinized. Judge Bedjaoui in his opinion added to the opinion of Judge Shahabuddeen, saying that as a rule, the International Court of Justice does not exercise appellate jurisdiction over the Security Council.100
The learned judge however, strongly dissented from the views of his colleagues which recognised that a Security Council resolution completely pre empted the jurisdiction of the International Court of Justice and effectively precluded the latter from performing its judicial functions. Judge Bedjaoui stringently maintained that there were two aspects to the problem between Libya and the United States on this issue – political and judicial. In his view, although it was not possible for the Court to override the Security Council Resolution, the Court was by no means precluded from declaring provisional measures, as applied for by Libya, even if such a declaration by the Court was rendered destitute of effect by the Security Council Resolution.101

Judge Weeramantry, concurring with Judge Bedjaoui, conceded that although Article 25 of the United Nations Charter required member States of the United Nations to accept and carry out decisions of the Security Council, the Court was not deprived of its jurisdiction in issuing provisional measures as applied for by Libya. Adding that the International Court of Justice and the Security Council were created by the same Charter to ful.l the common purposes and principles of the United Nations, Judge Weeramantry concluded that the two agencies are complementary
　
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