INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS CONCERNING NEGOTIATIONS RELATING TO CESSATION OF
THE NUCLEAR ARMS RACE AND TO NUCLEAR DISARMAMENT
(Marshall Islands v. India)
MEMORIAL
OF
THE MARSHALL ISLANDS
16 DECEMBER 2014 TABLE OF CONTENTS
LIST OFANNEXES 3
PART 1–I NTRODUCTION 4
General Observations 4
The Nuclear Sword of Damocles 5
India’s Letter to the Court 7
PART 2–T HE EXISTENCE OF ADISPUTE 8
P ART3–T HE INTERPRETATION OF DECLARATIONS A CCEPTING THEJURISDICTION OF THE
COURT 14
General observations 14
India’s Reservation Regarding Interpretation of Multilateral Treaties 15
India’s Reservation Regarding Self-Defence 17
PART 4–C ONCLUSION 22
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! LIST OF ANNEXES
Annex 1 – The 2014 Report on the Effects of Regional Nuclear Fallout Between India and
Pakistan. Report by: Michael J. Mills, Owen B. Toon, Julia Lee-Taylor, and Alan Robock,
“Multidecadal Global Cooling and Unprecedented Ozone Loss Following a Regional Nuclear
Fallout”, in Earth’s Future
Annex 2 – The Map Series Demonstrating the Global Spread of Smoke from a Regional
Nuclear Fallout Between India and Pakistan, and Selected Maps from the 2014 Report
Submitted as Annex 1
Annex 3 – The Republic of India’s Letter to the Court of 6 June 2014
Annex 4 – The Republic of India’s Letter to the Court of 10 June 2014
Annex 5 – The Republic of India’s Article 36 Declaration
Annex 6 – The Republic of the Marshall Islands’ Article 36 Declaration
3!
! PART 1
INTRODUCTION
General Observations
1. In this Memorial the Republic of the Marshall Islands will, in accordance with the
Court’s Order of 16 June 2014, focus exclusively on the question of the jurisdiction of
the Court with respect to the issues that are before the Court in the present case.
2. The subject matter of the present dispute brought before the Court by the Republic of
the Marshall Islands (also referred to as ‘Marshall Islands’ or ‘RMI’ or ‘Applicant’) is
the failure of the Republic of India (also referred to as ‘India’ or ‘the Respondent’) to
honour its obligation towards the Applicant (and other States) to pursue in good faith,
and bring to a conclusion, negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control. This!obligation!to!negotiate!a!
nuclear!disarmament!includes,!in!the!first!place,!the!obligation!to!negotiate!in!
good!faith!to!cease the nuclear arms race by each of the States that are in possession
of nuclear weapons.
3. On 24 April 2014 the RMI submitted nine Applications to the Court. Each
Application, filed against a different Respondent State, presented a different general
background and was based on a different set of facts. The subject matter of all
Applications related to a similar failure of each and every one of these nine States to
live up to their obligation to pursue in good faith, and bring to a conclusion,
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control.
4. Only three of the nine States involved currently recognize, as compulsory and without
special agreement, the jurisdiction of the Court by means of a declaration under
Article 36, para. 2 of the Statute of the International Court of Justice. Those three
States are India, Pakistan and the United Kingdom. Each of those States recognizes
the Court’s jurisdiction on its own terms and conditions. In the Applications relating to
the other six States the RMI has included an invitation as foreseen in Article 38, para.
5 of the Rules of Court.
5. To date, only the People’s Republic of China has formally notified the Court that it
does not consent to the jurisdiction of the Court. The other five States – the United
States of America, the French Republic, the Russian Federation, the State of Israel and
the Democratic People's Republic of Korea – have not formally!responded to the
RMI’s Applications.
4!
! 6. The fact that not all of the nine States are accepting to actually appear in theses
respective cases before the Court cannot be deemed an obstacle for the Court to
consider and adjudge each one of the three cases that are actually continuing (the
present case against India as well as the cases against Pakistan and the United
Kingdom). Each of the six States may be able to frustrate the case against itself by not
appearing before the Court. However, it would not be acceptable to allow this non-
appearance of third States to have a negative impact on the RMI’s right to pursue the
enforcement of the obligations involved by submitting a case to the Court.
The Nuclear Sword of Damocles
7. This case involves obligations of an erga omnes character, engaging RMI as a member
of the international community. RMI’s interests – even its existential interests - are
also engaged by the issues at stake in this case. In particular, the potential threat of
devastation caused by India’s nuclear forces resulting in a substantial drop in
temperature combined with the depletion of the global ozone layer. One or a few
nuclear explosions, anywhere in the world, certainly in urban areas, would have
devastating humanitarian effects, which given its experience with the health and
environmental consequences of nuclear testing the Marshallese naturally desire to
prevent, as RMI emphasized in its written submission in Legality of Threat or Use of
2
Nuclear Weapons. Any such explosion would also have adverse effects on the global
economy and likely on the nature of global political and legal order, and therefore on
the Marshall Islands. Beyond that, a nuclear exchange involving detonations in dozens
of cities would have severe effects on the climate directly and substantially affecting
the Marshall Islands. That risk is a stunning illustration of the Court’s finding, quoted
in para. 1 of the Application, that “the destructive power of nuclear weapons cannot be
4
contained in either space or time”. The size of this threat has rather recently been
demonstrated in a study in which the outcome of a nuclear exchange – between India
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1See Tilman Ruff, “The health consequences of nuclear explosions,” in Beatrice Fihn, ed.,
Unspeakable suffering – the humanitarian impact of nuclear weapons (Reaching Critical Will, 2013),
http://www.reachingcriticalwill.org/images/documents/Publications/Unspe… le/Unspeakable.pdf
[accessed on 11 December 2014]. Tilman Ruff is Associate Professor, Nossal Institute for Global
Health, University of Melbourne, and Co -President, International Physicians for the Prevention of
Nuclear War.
2Letter dated 22 June 1995 from the Permanent Representative of the Marshall Islands to the United
Nations, together with Written Statement of the Government of the Marshall Islands, http://www.icj-
3ij.org/docket/files/95/8720.pdf [accessed on 11 December 2014].
Cf. President Barack Obama, Prague speech, April 5, 2009: “One nucle ar weapon exploded in one
city – be it New York or Moscow, Islamabad or Mumbai, Tokyo or Tel Aviv, Paris or Prague – could
kill hundreds of thousands of people. And no matter where it happens, there is no end to what the
consequences might be for our global safety, our security, our society, our ec onomy, to our ultimate
survival”.
http://www.whitehouse.gov/the_press_office/Remarks -By-President-Barack-Obama-In-Prague-As-
Delivered [accessed on 11 December 2014].
4Advisory Opinion on the Legality of the Threa t or Use of Nuclear Weapons at para 35.
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! and Pakistan – has been tested (Annex 1). This study demonstrates that the effects of
such a nuclear war, using only 0.03% of the world’s nuclear arsenal, would be global
and devastating. If each side detonates fifty 15-kiloton (kt) weapons it could produce a
large amount of smoke that would rise into the atmosphere, spreading globally and
causing a drop in temperature on the Earth’s surface, whilst heating up the
stratosphere.
8. The vast cities in both India and Pakistan not only are housing millions of people, but
also provide fuel for fires post-detonation. Therefore a nuclear war between the two
States would not only directly kill millions of people, but would also result in massive
amounts of dark smoke rising into the atmosphere indirectly signing a death warrant
for the rest of the Earth’s inhabitants. The smoke from the fires will absorb sunlight;
as a result the temperature on Earth’s surface will be much cooler. As the smoke
absorbs the sunlight it will heat up and damage the ozone layer, which will result in
harmful UV rays reaching the surface. The damage to human health, agricultural and
sea life would be immense. The study suggests a number of detrimental consequences,
including the global food supply being threatened.
9. The Marshall Islands’ reliance on the ocean for food supplies is exacerbated by the
lack of suitable farming soil. It relies on imports for a large part of its food supply,
7
especially animal products. Any change in the Earth’s atmosphere affecting farming
in countries that the RMI relies on for food support, for example the United States,
would cause a widespread food shortage. Even a slight amount of damage to the
aquatic ecosystem as a result of the ozone layer deteriorating could do away with their
only real accessible food source. The Marshall Islands have a limited amount of food
production, and changes in temperature and rainfall will directly impact that
production. The lack of viable food sources could mean that the RMI would find
themselves starving, and most likely before the rest of the world. As mentioned, the
study referred to above provides an in-depth analysis of the devastating global effects
of a nuclear fallout. The maps – to which the Applicant has added its own explanation
in italics – taken from the report of this study and the related website show the speed
at which resulting smoke spreads across the globe and up into the atmosphere and the
changes in the surface air temperature and growing seasons as a result of such nuclear
fallout (Annex 2).!!
10. The maintenance and expansion of this threat, while at the same time not living up to
its central obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects under strict and effective international
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5M.J Mills et al., “Multi-decadal Global Cooling and Unprecedented Ozone Loss Following a
Regional Nuclear Conflict” , Earth’s Future Research Paper 2014, at p. 161.
6http://www.fao.org/ag/AGP/AGPC/doc/Counprof/southpacific/marschall.htm [accessed on 11
December 2014].
7http://atlas.media.mit.edu/profile/country/mhl/ [accessed on 11 December 2014].
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! control, in itself is a clear demonstration of the scale and the nature of the dispute that
exists between the two Parties to the present case.!
India’s Letter to the Court
11. By a letter of 28 April 2014 the Court invited the Applicant and the Respondent to
meet with its President for the purposes set out in Article 31 of the Rules of Court. On
6 June 2014 India sent a letter to the Court informing the Court of its position with
respect to the RMI’s Application (Annex 3). By a letter of 10 June 2014 India
informed the Court that it would not be able to attend the meeting with the Court’s
President scheduled for 11 June 2014 (Annex 4).
12. In its first letter India raised several issues that led it to conclude that the Court “[…]
does not have jurisdiction in the alleged dispute” (para. 4 of the letter). On the basis of
this claim the Court decided in its Order of 16 June 2014 “that the written pleadings
shall first be addressed to the question of the jurisdiction of the Court”. The Applicant
respects the Court’s Order. Therefore, at the present time it will not submit a
Memorial that conforms to Article 49, para. 1 of the Rules of Court. Instead, the
Applicant is submitting a Memorial exclusively focused on the jurisdictional issues
raised by India in its letter of 6 June 2014. The RMI wishes to underline that it is,
indeed, restricting its observations to issues effectively raised by India since!the!
Applicant!cannot!be!expected!to go beyond what the Respondent has raised in its
letter. It is up to the Party raising objections to fully specify and define those
objections. Moreover, it is not for the Applicant to divine what the objections of the
Respondent may be. A different approach would be contrary to rules of proper
proceedings. In any case, the RMI reserves the right to supplement the present
Memorial in writing or at the oral stage of the proceedings after it has had the
opportunity to study the Counter-Memorial of India on this phase of the case.
7!
! P ART 2
THE E XISTENCE OF A D ISPUTE
13. This section responds to India’s statement that “[t]he Application of Marshall Islands
against India fails to establish any dispute between the Marshall Islands and India with
regard to the non-fulfillment of any treaty or customary international law
obligations”. This objection is groundless. There is a legal dispute between the RMI
and India within the meaning of Article 36, para. 2 of the Statute. The dispute
concerns India’s compliance or non-compliance with its obligation under customary
international law to pursue in good faith, and bring to a conclusion, negotiations
leading to nuclear disarmament in all its aspects under strict and effective international
control.
14. The Court has identified clear parameters for determining the existence of a dispute.
According to the established case law of the Court, “[a] dispute is a disagreement on a
9
point of law or fact, a conflict of legal views or of interests between two persons.”
Moreover, “[w]hether there is a dispute in a given case is a matter for ‘objective
10
determination’ by the Court” and “[t]he Court’s determination must turn on an
examination of the facts. The matter is one of substance, not of form.” In particular,
what must be shown is “that the claim of one party is positively opposed by the
12
other”. However, the opposition to the claim of one party may also be inferred from
the attitude taken by the other party in respect to such claim. As the Court has stated,
“a disagreement on a point of law or fact, a conflict of legal views or interests, or the
positive opposition of the claim of one party by the other need not necessarily be
stated expressis verbis. In the determination of the existence of a dispute, as in other
matters, the position or the attitude of a party can be established by inference,
13
whatever the professed view of that party”.
8!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Letter of 6 June 2014.
9Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2 , p. 11, and,
most recently, Application of the International Conv ention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
1011 (I), p. 84, para. 30.
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950 , p. 74.
11Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 84, para. 30.
12South West Africa (Ethiopia v. South Africa ; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962 , p. 328, and most recently Questions relating to the Obligation to
13osecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 442, para. 46.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998 , p. 315, paras. 89 ff.,
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! 15. These criteria are fulfilled in the present case. The statements and conduct of the
parties reflect the existence of a legal dispute between India and the RMI over whether
India is complying with its obligation to pursue in good faith and bring to a conclusion
negotiation leading to nuclear disarmament in all its aspects under strict and effective
international control.
16. As set out in its Application and in the introduction to the present Memorial, the RMI
has a particular awareness of the potentially dire consequences of nuclear weapons
and in recent years has enhanced its commitment to promoting greater global progress
to nuclear disarmament. On several occasions, and in different fora, it has asked States
possessing nuclear weapons to abide by their obligations to take action towards
nuclear disarmament. For instance, on 26 September 2013, at the occasion of the UN
High Level Meeting on Nuclear Disarmament, the Minister of Foreign Affairs for the
RMI urged “all nuclear weapons states to intensify efforts to address their
responsibilities in moving towards an effective and secure disarmament”. On 13 14
February 2014, at the Second Conference on the Humanitarian Impact of Nuclear
Weapons, the RMI reiterated such demand and expressly stated that the failure of
States possessing nuclear weapons to engage in negotiation leading to nuclear
disarmament amounted to a breach of their international obligations. It observed that:
“(…) the Marshall Islands is convinced that multilateral negotiations on
achieving and sustaining a world free of nuclear weapons are long
overdue. Indeed we believe that states possessing nuclear arsenals are
failing to fulfill their legal obligations in this regard. Immediate
commencement and conclusion of such negotiations is required by legal
obligation of nuclear disarmament resting upon each and every state
under Article VI of the Non Proliferation Treaty and customary
international law.” 15
17. This statement illustrates with perfect clarity the content of the claim of the RMI. The
claim was unequivocally directed against all States possessing nuclear arsenals,
including India. The contested conduct was clearly stated – the failure by these States
to seriously engage in multilateral negotiations leading to a nuclear disarmament. The
legal basis of the claim was also clearly identified to include the legal obligation
resting upon each and every State under customary international law.
14!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Statement by Hon. Mr. Phillip Muller, Minister of Foreig n Affairs of the Republic of the Marshall
Islands, 26 September 2013 (available at
http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf).
15Marshall Islands Statement, Second Conference on the Humanitarian Impact of Nuclear Weapons
Nayarit, Mexico, 13-14 February 2014 (available at
http://www.reachingcriticalwill.org/images/documents/Disarmament -fora/nayarit-
2014/statements/MarshallIslands.pdf)
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! 18. By this unequivocal statement, made in the context of an international conference in
which India participated, India was made aware that the RMI believed that its failure
to seriously engage in multilateral negotiations amounted to a breach of its
international obligations under customary international law. This public statement, as
well as the overall position taken by the RMI on this issue over recent years, is clear
evidence that the RMI had raised a dispute with each and every one of the States
possessing nuclear weapons, including with India. The subject matter of this dispute is
the same as that later submitted to the Court through the RMI’s Application. In its
judgment in the case concerning the Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation) the Court recognized that “[w]hile it is not necessary that a State must
expressly refer to a specific treaty in its exchanges with the other State to enable it
later to invoke that instrument before the Court (Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, pp. 428‑429, para. 83), the exchanges
must refer to the subject‑matter of the treaty with sufficient clarity to enable the State
against which a claim is made to identify that there is, or may be, a dispute with regard
to that subject‑matter”. While this statement refers to a dispute with regard to
compliance with a treaty, the same also applies to disputes under customary
international law. In the present case there is no doubt that the RMI referred to the
subject matter of its claims against India with sufficient clarity to enable India “to
identify that there is, or may be, a dispute with regard to that subject-matter”. Thus,
India cannot now seriously contend that the RMI failed to raise a dispute with India
over India’s non-fulfillment of its customary international law obligation to engage in
negotiations leading to nuclear disarmament.
19. It can hardly be denied that the RMI’s claims have been positively opposed by India.
India’s opposition to such claims can be inferred, in the first place, from its conduct.
While in public statements India has frequently reaffirmed its commitment to the goal
of a nuclear weapon free world, its conduct, which continued unchanged despite the
RMI’s claims and requests, reveals that India is not fulfilling its obligation under
customary international law to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects. Instead, India continues
to engage in a course of conduct consisting of the quantitative build-up and qualitative
improvement of its nuclear arsenal, which is contrary to the objective of nuclear
disarmament. In its Application, the RMI has already set out India’s current plans for
the expansion, improvement and diversification of its nuclear arsenal. There is no
reason to return to this issue here. At this stage, what must be emphasized is that
India’s conduct provides clear evidence of its opposition to the RMI’s claims. As the
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16Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 84, para. 30.
17For references see RMI Application, paras 36 -37.
18RMI Application, paras 29 -34.
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! Court said, when it comes to determining the existence of a dispute, “[t]he matter is
one of substance, not of form”. And the substance is that India continues to engage
in conduct that is contrary to its customary international legal obligation to pursue in
good faith, and bring to a conclusion, negotiations leading to nuclear disarmament in
all its aspects under strict and effective international control.
20. Not only can India’s opposition to the RMI’s claims be inferred from its conduct,
India has also explicitly disputed that the claim is well-founded. In its letter to the
Court of 6 June 2014, India denied the existence of “any dispute between the Marshall
Islands and India with regard to the non-fulfillment of any treaty or customary
international law obligations”. Its view on this issue was based on the following
argument:
“India has not accepted, ratified or acceded to the NPT. The 1969 Vienna
Convention on the Law of Treaties, which codified prevailing customary
international law, provides that States are bound by a treaty based on the
principle of free consent. Given India’s consistent objection to the NPT,
the obligations arising from it cannot selectively apply to India as a
matter of customary international law. A global approach is inherent in
the nature of the subject of the Application, namely nuclear disarmament,
and a selective remedy cannot be sought against a State or a few
States.” 20
21. India’s argument is based on two propositions: a) that the obligations set forth in the
NPT do not apply to it since India is not a party to that Treaty; and b) that, even
assuming the existence of an obligation as a matter of customary international law – a
point which India does not concede, at least not expressly – this obligation cannot be
selectively invoked against India because “[a] global approach is inherent in the nature
of the subject of the Application”. As regards the first proposition, it is clear from the
Application that the RMI’s claims against India rely only on customary international
law. As to the second proposition, India’s view on this point is clearly incorrect.
Under customary international law, every State is under an obligation erga omnes to
pursue in good faith negotiations leading to nuclear disarmament. This obligation
applies to India, as it applies to each and every State, irrespective of the attitudes of
the other States in respect to the same obligation. In other words, the fact that other
States may have breached the obligation to negotiate does not and cannot exclude the
possibility for the Court to assess independently whether India is complying with the
same obligation. There is no reason to believe that this obligation is of such a nature
that it cannot be invoked against a single State, or against a few States. The
possibilities of seeking remedies against one State, or of bringing the question of that
State’s compliance with this obligation before an international tribunal, are not
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19
20See supra footnote 18.
Letter of 6 June 2014.
11!
! excluded just because other States are under the same obligation to negotiate nuclear
disarmament. As it has been observed, “should the presence of all responsible States
be required, the need for the existence of a jurisdictional link between the claimant
State and all the respondent States would be likely to lead to the consequence that all
the latter States would enjoy immunity from judicial scrutiny”. 21
22. While any question concerning the content of the obligation to negotiate invoked
against India is to be left for the merits phase of the case, what has to be stressed at the
present stage is that India’s statement only goes to confirm the existence of a dispute
between itself and the RMI. By the very act of setting out its disagreement with the
RMI’s positions over the existence of an international obligation that can be invoked
against it, India itself demonstrates the existence of a dispute between the Parties. This
Court has the obligation, and jurisdiction, to hear the dispute and to declare what
customary international law requires. In its judgment in the case concerning Certain
Property (Liechtenstein v. Germany), the Court observed that “in the present
proceedings complaints of fact and law formulated by Liechtenstein against Germany
are denied by the latter. In conformity with well-established jurisprudence (…), the
Court concludes that ‘[b]y virtue of this denial, there is a legal dispute’ between
Liechtenstein and Germany”. To the same extent it may be said that in the present
proceedings, complaints of law formulated by the RMI are denied by India and that
therefore, by virtue of this denial, there is a legal dispute between the RMI and India.
23. The fact that these elements are sufficient to prove the existence of a dispute is
confirmed by the Court’s established case law, according to which:
“[…] the manifestation of the existence of the dispute in a specific
manner, as for instance by diplomatic negotiations, is not required. It
would no doubt be desirable that a State should not proceed to take as
serious a step as summoning another State to appear before the Court
without having previously, within reasonable limits, endeavoured to
make it quite clear that a difference of views is in question which has not
been capable of being otherwise overcome. But in view of the wording of
the article, the Court considers that it cannot require that the dispute
should have manifested itself in a formal way; according to the Court's
view, it should be sufficient if the two Governments have in fact shown
themselves as holding opposite v23ws in regard to the meaning or scope
of a judgment of the Court”.
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21
G. Gaja, ‘The Protection of the General Interests in the International Community. General Course
22 Public International Law’, Recueil des cours, vol. 364 (2014), p. 118.
Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I. C.J. Reports
2005, p. 19, para. 25.
23Interpretation of Judgments Nos 7 and 8 (Factory of Chorzow), Judgment No. 11, 1927, P.C.I.J.,
Series A, No. 13, pp. 10-11.); also Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya),
12!
! 24. With regard to this finding, it has been observed that “[t]his amounts to saying that the
establishment of a dispute presupposes a claim by one side, opposed by another, but
that the opposition does not have to be the result of prior negotiations or prior contact
24
between the disputing States”. The same author also noted that, in order for a
conflict to give rise to a dispute, “it is necessary that one of the States concerned
should ‘activate’ the conflict by formulating claims that the other will have to resist.
This can happen through prior diplomatic negotiations or through declarations to the
25
Court itself”. Moreover, while obviously, as the Court put it, the “dispute must in
principle exist at the time the Application is submitted to the Court”, the existence of
the dispute as defined in the Application may also be evidenced by the positions of the
parties before the Court. Indeed, in several cases the Court has accorded evidentiary
value to the Parties’ statements before the Court for the purposes of determining the
existence of a dispute. 27
25. It may be concluded that the RMI and India, by their opposing statements and conduct
both prior to and after the submission of the Application, have manifested the
existence of a dispute over India’s non-compliance with its obligation to pursue in
good faith, and bring to a conclusion, negotiations leading to nuclear disarmament in
all its aspects under strict and effective international control. India’s objection in this
respect must therefore be rejected.
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Judgment of 10 December 1985, I.C.J. Reports 1985 , p. 218, para. 46. While this case satisfies even
this standard, which is a reference to a dispute required under Article 60 of the Statute, a dispute under
Article 36 may encompass a much broader range of differences of fact and law.
24R. Kolb, The International Court of Justice , Hart Publishing, 2013, p. 314.
25Ibid., p. 306.
26Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 85, para. 30; Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012, p. 442, para. 46.
27See, among others, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria), I.C.J. Reports 1998, p. 315, para. 93; Application of the Convention on the Prevention and
Punishment of the Crime of G enocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Reports 1996
(II), pp. 614- 615, para. 29; Certain Property (Liechtenstein v. Germany), I.C.J. Reports 2005, p. 19,
para. 25.
13!
! PART 3
T HE INTERPRETATION OF D ECLARATIONS A CCEPTING THE JURISDICTION OF THE C OURT
General observations
26. The Court has jurisdiction over the present dispute by reason of the respective
Declarations made by India and the RMI under Article 36, para. 2 of the Court’s
Statute. India signed its Declaration on 15 September 1974 and deposited it on 18
September 1974 (Annex 5). The RMI’s Declaration was deposited on 24 April 2013
(Annex 6). Both Declarations were in force when the RMI submitted its Application
to the Court.
27. As stated by this Court, “[i]t is for each State, in formulating its declaration, to decide
28
upon the limits it places upon its acceptance of the jurisdiction of the Court”. When a
Party places such limits, “the interpretation of declarations made under Article 36,
paragraph 2, of the Statute, and of any reservations they contain, is directed to 29
establishing whether mutual consent has been given to the jurisdiction of the Court”.
While both Parties have made reservations to their respective Declarations under
Article 36, para. 2, a plain reading of the text of these two Declarations makes clear
that the Parties have given their mutual consent to the Court’s jurisdiction in relation
to the dispute submitted by the RMI, since neither of these two Declarations places a
limit on the Court’s jurisdiction in relation to the present case. In particular, the
reservations contained in their respective Declarations are simply not pertinent for the
purposes of the present case.
28. In its letter of 6 June 2014, India did not mention the Declaration of acceptance of the
Court’s jurisdiction made by the RMI on 24 April 2013. This is not surprising as the
few limitations on the Court’s jurisdiction contained in that Declaration clearly do not
concern the dispute brought by the RMI against India.
29. In the same letter, India argued that “the International Court of Justice does not have
jurisdiction in the alleged dispute”. In support of this argument, it invoked two
reservations contained in its Declaration of acceptance of the Court’s jurisdiction,
namely reservations (4) and (7). None of the other reservations contained in India’s
Declaration was referred to in the letter of 6 June 2014. Therefore, there is no reason
28!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judg ment, I.C.J. Reports 1998 ,
pp. 452-453, para. 44.
29Ibid.
30Letter of 6 June 2014, para. 4.
14!
! to enter into an examination of these other reservations. Indeed, that would be an
exercise of little utility, as it is clear from the outset that they also do not limit the
Court’s jurisdiction in relation to the present dispute.
30. The next sections of this Memorial will show that neither of the two reservations
invoked by India creates a bar to the Court’s jurisdiction. The interpretation of these
reservations leaves no doubt as to the existence of the mutual consent of the Parties to
the Court’s jurisdiction. Before examining them, it is useful to recall the rules of
international law that apply to the interpretation of unilateral declarations made under
Article 36, para. 2 of the Court’s Statute and of the reservations contained therein.
31. According to the well-established case law of this Court, a declaration “must be
31
interpreted as it stands, having regard to the words actually used”. Moreover, “the
Court cannot base itself on a purely grammatical interpretation of the text. It must seek
the interpretation which is in harmony with a natural and reasonable way of reading
the text”. When interpreting a declaration, the Court gives due regard on the
intention of the depositing State at the time of its acceptance:
“The Court will thus interpret the relevant words of a declaration including a
reservation contained therein in a natural and reasonable way, having due
regard to the intention of the State concer33d at the time when it accepted the
compulsory jurisdiction of the Court”.
The Court has also observed that “where an existing declaration has been replaced by
a new declaration which contains a reservation, as in this case, the intentions of the
Government may also be ascertained by comparing the terms of the two
instruments”. 34
India’s Reservation Regarding Interpretation of Multilateral Treaties
32. Reservation (7) excludes from India’s consent to the Court’s jurisdiction “disputes
concerning the interpretation or application of a multilateral treaty unless all the
parties to the treaty are also parties to the case before the Court or Government of
India specially agree to jurisdiction”.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
31
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports
3252, p. 105.
Ibid., p. 104.
33Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998 ,
p. 454, para. 49.
34Ibid., p. 454, para. 50.
15!
! 33. The words used in this reservation indicate that the application of this reservation is
subjected to two conditions. The first condition relates to the subject matter of the
dispute. Thus, the reservation applies to disputes over the interpretation or application
of a multilateral treaty. In other words, the existence of a dispute having this subject
matter presupposes that the claims put forward by the applicant are based on a
multilateral treaty that is applicable in the relationship between the applicant and the
respondent. The second condition is that all the parties to the treaty are parties to the
case brought before the Court or, in absence thereof, that India has specifically agreed
to the Court’s jurisdiction. The intention underlying the adoption of this text is that of
excluding the possibility that a dispute concerning a multilateral treaty to which India
is a party may be brought against India alone, without the other parties to the treaty
also being parties to the case and therefore also being bound by the Court’s
interpretation of that multilateral treaty.
34. This reservation cannot serve to exclude the Court’s jurisdiction in relation to the
dispute submitted by the RMI for the obvious reason that there is no dispute between
the RMI and India over the interpretation and application of a multilateral treaty. It is
true that the obligation to engage in good faith in negotiations leading to nuclear
disarmament is also contained in Article VI of the NPT. However, the dispute between
the RMI and India cannot concern the interpretation or application of the NPT,
because India is not a party to that treaty. What is before the Court in this case is a
dispute exclusively concerning India’s compliance with the obligation under
customary international law to pursue in good faith, and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control. The fact that the rule set forth in Article VI of the NPT may have
the same content as the customary international rule on which the RMI bases its
claims does not and cannot transform the present dispute into a dispute over the
interpretation and application of the NPT.
35. India’s objection runs squarely counter to the position held by this Court in its
Judgment in the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) case. While the wording of the reservation of
the United States differed slightly from that of India, the view held by the Court in that
case also applies to the present case. The United States had argued that, if the claims
of the applicant merely restate its claims based expressly on certain multilateral
treaties, the reservation also applies to disputes that are formulated in terms of
customary international law. The Court rejected this argument by observing:
“The Court cannot dismiss the claims of Nicaragua under principles of
customary and general international law, simply because such principles have
been enshrined in the texts of the conventions relied upon by Nicaragua. The
fact that the abovementioned principles, recognized as such, have been
codified or embodied in multilateral conventions does not mean that they cease
16!
! to exist and to apply as principles of customary law, even as regards countries
35
that are parties to such conventions”.
It also observed:
“[…] the effect of the reservation in question is confined to barring the
applicability of the United Nations Charter and Organization of American
States Charter as multilateral treaty law, and has no further impact on the
sources of international law which Article 38 of the Statute requires the Court
to apply”. 36
36. It must be noted that in the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) case the invocation of the
multilateral-treaty reservation had been prompted by the fact that the dispute
submitted by Nicaragua was in fact a dispute under both multilateral treaties and
customary international law. However, unlike that dispute, the present dispute
between the RMI and India is, and can only be, a dispute exclusively under customary
international law. This is so because India is not a party to the NPT. This renders the
invocation of this reservation by India, if possible, even more groundless.
37. For all these reasons, the objection raised by India through the invocation of the
multilateral treaty reservation must be rejected.
India’s Reservation Regarding Self-Defence
38. Reservation (4) excludes the Court’s jurisdiction over disputes relating to or connected
with “facts or situations” of hostilities involving India. The first part of the reservation
refers to “disputes relating to or connected with facts or situations of hostilities, armed
conflicts, individual or collective actions taken in self-defence, resistance to
aggression, fulfilment of obligations imposed by international bodies”. The second
part of the reservation, introduced by the conjunction “and”, excludes in addition
“other similar or related acts, measures or situations in which India is, has been or may
in future be involved”. It is apparent that the two parts of the reservation are strictly
connected. As the Court put it in a recent case where it noted that “[t]he wording of
the second part of the reservation is closely linked to that of the first part”, “[t]he
37
reservation thus has to be read as a unity”. The same applies to the interpretation of
the present reservation.
35!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgmen t, I.C.J. Reports 1984, p. 424, para. 73.
36Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America), Merits, I.C.J. Reports 1986 , p. 38, para. 56.
37Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, para. 37.
17!
! 39. The reservation must first “be interpreted as it stands, having regard to the words
38
actually used”. Here we can leave aside the reference to the “fulfillment of
obligations imposed by international bodies”, which is clearly not pertinent for the
purposes of the present case. As a whole, the words “[f]acts or situations of
hostilities, armed conflicts, individual or collective actions taken in self-defence,
resistance to aggression” naturally and reasonably refer to particular uses of force, i.e.
to specific situations involving India in which force is used. The inclusion among the
listed “facts or situations” of “individual or collective actions taken in self-defence”
means that the exclusion of the Court’s jurisdiction operates in case of disputes
concerning “actions taken” in self-defence. The word “taken” reinforces the reading
according to which the first part of the reservation operates if the dispute between
India and another State concerns a specific situation of use of force, including cases of
self-defense.
40. The second part of the reservation must be read in the light of the first part. When the
exception under (4) is interpreted “as a unity”, it becomes clear that the second part
also refers to particular situations of use of force. This is confirmed by the words
“similar or related acts, measures or situations” (italics added). The particular
situations of use of force to which the reservation refers may also be ones in which
India is not currently involved but in which it “may in future be involved”. It remains,
however, that the application of the reservation clearly requires that two conditions be
satisfied: that there exists a specific situation of use of force (or related acts and
measures) in which India is, has been or may in future be involved; and that the
dispute between the Parties relates to, or is connected with, that particular situation.
41. India’s Declaration of 14 September 1959, which, on 18 September 1974, was
replaced by the Declaration currently in force, contained a similar reservation. It
provided as follows:
“Disputes concerning any question relating to or arising out of belligerent
or military occupation or the discharge of any functions pursuant to any
recommendation or decision of an organ of the United Nations, in
accordance with which the Government of India have accepted
39
obligations.”
If one compares the terms of the two reservations, it can be observed that the new
reservation differs from its precedent by being both broader and more precise. It is
broader since it covers other situations in addition to “belligerent or military
occupation or the discharge of any functions pursuant to any recommendation or
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
38Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports
3952, p. 105.
Trial of Pakistani Prisoners of War (Pakistan v. India), Correspondence , p. 142.
18!
! decision of an organ of the United Nations”. It is also more precise because, instead of
using the generic word “question”, it refers to “fact or situations”.
42. In regard to the objectives that the new reservation was intended to achieve, it can be
observed that the new Declaration was deposited by India a few months after the filing
by Pakistan of the case concerning the Trial of Pakistani Prisoners of War (Pakistan
v. India). Significantly, Pakistan had sought to base the Court’s jurisdiction over that
case also on the Declarations of the Parties under Article 36, para. 2 of the Statute. 40
This circumstance suggests that the purpose of the new Declaration was to prevent the
Court from exercising its jurisdiction over particular situations of the use of force
involving India or over related acts and measures, including obviously the treatment of
prisoners of war. In other words, the close temporal link between Pakistan’s
Application and the modification of India’s Declaration provides support for the view
that the new reservation was intended to cover disputes relating to, or connected with,
particular situations of the use of force, such as the dispute submitted to the Court by
Pakistan. Thus, the historical context of this modification of its reservation seems to
provide evidence for the intention of India “at the time when it accepted the
41
compulsory jurisdiction of the Court”.
43. It is apparent that the dispute between the RMI and India does not fall within the ambit
of reservation (4), included in India’s current Declaration under Article 36, para. 2. All
the reservation is designed to cover is particular uses of force involving India or
similar or related acts, measures or situations. The present dispute is not related to, nor
is connected with, any such acts, measures or situations.
44. In its letter of 6 June 2014, India alluded to the existence of a link between the
possession of nuclear armaments and its right of self-defence. It observed that,
“pending global nuclear disarmament, India is committed for reasons of national
security and42elf-defence to building and maintaining a credible minimum nuclear
deterrent”. With regard to this statement, the RMI incidentally notes that it strongly
opposes the view that the right of self-defence per se may justify the possession or the
use of nuclear armaments. At this stage, however, it confines itself to observing that
this statement fails to establish any link between the possession of nuclear armaments
and the application of reservation (4) to the present dispute. This is hardly surprising.
40!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Trial of Pakistani Pris oners of War (Pakistan v. India), Minutes of the Public Sittings held at the
Peace Palace, The Hague, 4 June 1973 (Request for the indication of interim measures of protection),
Argument by Mr. Bakhtiar, CR 1973, p. 54.
41Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998 ,
p. 454, para. 49. In the same judgment it is said that “[t]he Court will thus interpret the relevant words
of a declaration including a reservation contained therein in a natural and reason able way, having due
regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction
of the Court. The intention of a reserving State may be deduced not only from the text of the relevant
clause, but also from the co ntext in which the clause is to be read, and an examination of evidence
regarding the circumstances of its preparation and the purposes intended to be served.” Ibid.
42Letter of 6 June 2014, para. 2.
19!
! As it has been shown, only the existence of a particular situation of armed conflict
may trigger the application of such reservation and the present dispute does not relate
to, and is not connected with, any such situation. But even assuming, arguendo, that a
dispute over India’s possession of a nuclear arsenal might be regarded as falling
within the ambit of the reservation, this would not exclude the Court’s jurisdiction
over the present dispute.
45. The subject matter of the RMI’s Application does not concern the question of whether
India has a right to possess a nuclear armament. Nor does the RMI claim that India is
under a duty to unilaterally dismantle its nuclear arsenal. The RMI claims that,
particularly by engaging in a program of quantitative build-up and qualitative
improvement of its nuclear forces, India is not complying with its obligation to pursue
in good faith negotiations leading to nuclear disarmament in all its aspects. However,
this does not mean that a dispute over the obligation to negotiate nuclear disarmament,
including cessation of the nuclear arms race, in good faith is a dispute over the
possession of a nuclear armament. The subject matter of the dispute brought before the
Court by the RMI concerns the obligation to negotiate, not the possession of a nuclear
arsenal. Consequently, any decision the Court may take on the dispute submitted by
the RMI would not directly affect India’s possessing – for whatever reason – a nuclear
arsenal. What the Court is called upon to do is to ascertain whether India has complied
and is complying with its obligation to pursue in good faith, and bring to a conclusion,
negotiations leading to nuclear disarmament in all its Order os under strict and
effective international control.
46. The legality or illegality of the possession and threat or use of nuclear weapons and
States’ compliance or non-compliance with the obligation to pursue in good faith
negotiations leading to nuclear disarmament are two separate aspects of the complex
question concerning “the legal status of weapons as deadly as nuclear weapons”. The 43
Court expressly acknowledged the difference between these two aspects in its
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. The
Court drew a clear distinction between “the eminently difficult issues that arise in
applying the law on the use of force and above all the law applicable in armed conflict
to nuclear weapons”44nd “one further aspect of the question before it, seen in a
broader context”, namely the existence of an obligation to negotiate in good faith a
nuclear disarmament. The separate nature ofseparate nature of these two different
45
aspects is also reflected in the operative part of the Court’s opinion.
47. The dispute between India and the RMI does not relate to, nor is it connected with, a
particular situation of the use of force. This is sufficient to exclude the applicability of
reservation (4). Ex abundanti cautela, it can be added that, more broadly, this dispute
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
43Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 , p. 263,
para. 98.
44Ibid.
45Ibid., para. 105.
20!
! does not concern the question of India’s right to possess a nuclear arsenal or to use
nuclear weapons in self-defence. The present dispute, as defined in the RMI’s
Application, is about whether India has complied and is complying with its obligation
to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control. Given its
subject matter, this dispute is unrelated to the disputes that are covered by reservation
(4).
21!
! P ART 4
C ONCLUSION
!
!
48. In accordance with the Order of the Court of 16 June 2014, this Memorial is restricted
to questions of jurisdiction raised by India. As for the merits of the case, the Applicant
maintains its Submissions, including the Remedies requested, as set out in the
Application of 24 April 2014. For further stages of the procedure the Applicant
reserves its right to clarify, modify and/or amend these Submissions.
49. On the basis of the foregoing statements of facts and law, the Republic of the Marshall
Islands requests the Court to adjudge and declare that it has jurisdiction with respect to
the present case.
16 December 2014
___________________________ _________________________
Tony A. de Brum Phon van den Biesen
Co-Agent of the Republic of Co-Agent of the Republic of
the Marshall Islands the Marshall Islands
before the International Court of Justice before the International Court of Justice
22!
!
Memorial of the Marshall Islands