|I.||Substantive International Law - First Part|
|5.||THE UNITED NATIONS|
Questions of Interpretation and Application
of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie
(Libya v. United Kingdom) Preliminary
Objections, Judgment of 27 February 1998
I.C.J. Reports 1998, p.
[pp. 25-26] 43. Libya furthermore draws the Court's attention to the principle that "The critical date for determining the admissibility of an application is the date on which it is filed" (Border and Transborder Armed Actions, (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports 1988, p. 95, para. 66). It points out in this connection that its Application was filed on 3 March 1992; that Security Council resolutions 748 (1992) and 883 (1993) were adopted on 31 March 1992 and 11 November 1993, respectively; and that resolution 731 (1992) of 21 January 1992 was not adopted under Chapter VII of the United Nations Charter and was only a mere recommendation. Consequently, Libya argues, its Application is admissible in any event.
44. In the view of the Court, this last submission of Libya must be upheld. The date, 3 March 1992, on which Libya filed its Application is in fact the only relevant date for determining the admissibility of the Application. Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into consideration in this regard since they were adopted at a later date. As to Security Council resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter because it was a mere recommendation without binding effect, as was recognized moreover by the United Kingdom itself. Consequently, Libya's Application cannot be held inadmissible on these grounds.1
[p. 519 D.O. Weeramantry] The second submission calling for attention is the suggestion that Security Council resolution 984 (1995) (United Kingdom Written Statement, para. 3.42 and Annex D) in some wav endorses the view that the use of nuclear weapons, in response to an armed attack, should not be regarded as necessarily unlawful.
A careful perusal of the resolution shows that it reassures the non-nuclear-weapon States that the Security Council and the nuclear-weapon States will act immediately in the event that such States are victims of nuclear aggression. It avoids any mention whatsoever of the measures to be adopted to protect the victim. Had such been the intention, and had such use of nuclear weapons been legal, this was the occasion par excellence for the Security Council to have said so.
For the sake of completeness, it should here be pointed out that, even if the Security Council had expressly endorsed the use of such weapons, it is this Court which is the ultimate authority on questions of legality, and that such an observation, even if made, would not prevent the Court making its independent pronouncement on this matter.
|1||Cf. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, ICJ Reports 1998, 9. 130/31|