Corrigé
Corrected
CR 2016/7
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2016
Public sitting
held on Monday 14 March 2016, at 3 p.m., at the Peace Palace,
President Abraham presiding,
in the case regarding Obligations concerning Negotiations relating to Cessation
of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom)
Preliminary Objections
____________________
VERBATIM RECORD
____________________
ANNÉE 2016
Audience publique
tenue le lundi 14 mars 2016, à 15 heures, au Palais de la Paix,
sous la présidence de M. Abraham, président,
en l’affaire des Obligations relatives à des négociations concernant la cessation
de la course aux armes nucléaires et le désarmement nucléaire
(Iles Marshall c. Royaume-Uni)
Exceptions préliminaires
________________
COMPTE RENDU
________________ - 2 -
Present: President Abraham
Vice-President Yusuf
Judges Owada
Tomka
Bennouna
Cançado Trindade
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Robinson
Crawford
Gevorgian
Judge ad hoc Bedjaoui
Registrar Couvreur
- 3 -
Présents : M. Abraham, président
M. Yusuf, vice-président
MM. Owada
Tomka
Bennouna
Cançado Trindade
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
MM. Bhandari
Robinson
Crawford
Gevorgian, juges
M. Bedjaoui, juge ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of the Marshall Islands is represented by:
H.E. Mr. Tony deBrum,
Mr. Phon van den Biesen, Attorney at Law, van den Biesen Kloostra Advocaten, Amsterdam,
as Co-Agents;
Ms Deborah Barker-Manase, Chargé d’affaires a.i. and Deputy Permanent Representative of the
Republic of the Marshall Islands to the United Nations, New York,
as Member of the Delegation;
Ms Laurie B. Ashton, Attorney, Seattle, United States of America,
Mr. Nicholas Grief, Professor of Law, University of Kent, member of the English Bar,
United Kingdom,
Mr. Luigi Condorelli, Professor of International Law, University of Florence, Italy, Honorary
Professor of International Law, University of Geneva,
Mr. Paolo Palchetti, Professor of International Law, University of Macerata, Italy,
Mr. John Burroughs, New York, United States of America,
Ms Christine Chinkin, Emerita Professor of International Law, London School of Economics,
member of the English Bar, United Kingdom,
Mr. Roger S. Clark, Board of Governors Professor, Rutgers Law School, New Jersey, United States
of America,
as Counsel and Advocates;
Mr. David Krieger, Santa Barbara, United States of America,
Mr. Peter Weiss, New York, United States of America,
Mr. Lynn Sarko, Attorney, Seattle, United States of America,
as Counsel;
Ms Amanda Richter, member of the English Bar,
Ms Sophie Elizabeth Bones, LL.B., LL.M., United Kingdom,
Mr. J. Dylan van Houcke, LL.B., LL.M., Ph.D. Candidate, Birkbeck, University of London,
United Kingdom,
Mr. Loris Marotti, Ph.D. Candidate, University of Macerata, Italy,
Mr. Lucas Lima, Ph.D. Candidate, University of Macerata, Italy,
Mr. Rob van Riet, London, United Kingdom,
Ms Alison E. Chase, Attorney, Santa Barbara, United States of America,
as Assistants;
Mr. Nick Ritchie, Lecturer in International Security, University of York, United Kingdom,
as Technical Adviser. - 5 -
Le Gouvernement de la République des Iles Marshall est représenté par :
S. Exc. M. Tony deBrum,
M. Phon van den Biesen, avocat, van den Biesen Kloostra Advocaten, Amsterdam,
comme coagents ;
Mme Deborah Barker-Manase, chargé d’affaires a.i. et représentant permanent adjoint de la
République des Iles Marshall auprès de l’Organisation des Nations Unies à New York,
comme membre de la délégation ;
Mme Laurie B. Ashton, avocat, Seattle, Etats-Unis d’Amérique,
M. Nicholas Grief, professeur de droit à l’Université du Kent, membre du barreau d’Angleterre,
Royaume-Uni,
M. Luigi Condorelli, professeur de droit international à l’Université de Florence, Italie, professeur
honoraire de droit international à l’Université de Genève,
M. Paolo Palchetti, professeur de droit international à l’Université de Macerata, Italie,
M. John Burroughs, New York, Etats-Unis d’Amérique,
Mme Christine Chinkin, professeur émérite de droit international à la London School of
Economics, membre du barreau d’Angleterre, Royaume-Uni,
M. Roger S. Clark, Board of Governors Professor à la faculté de droit de l’Université Rutgers,
New Jersey, Etats-Unis d’Amérique,
comme conseils et avocats ;
M. David Krieger, Santa Barbara, Etats-Unis d’Amérique,
M. Peter Weiss, New York, Etats-Unis d’Amérique,
M. Lynn Sarko, avocat, Seattle, Etats-Unis d’Amérique,
comme conseils ;
Mme Amanda Richter, membre du barreau d’Angleterre,
Mme Sophie Elizabeth Bones, LL.B., LL.M, Royaume-Uni,
M. J. Dylan van Houcke, LL.B., LL.M, doctorant au Birkbeck College, Université de Londres,
Royaume-Uni,
M. Loris Marotti, doctorant à l’Université de Macerata, Italie,
M. Lucas Lima, doctorant à l’Université de Macerata, Italie,
M. Rob van Riet, Londres, Royaume-Uni,
Mme Alison E. Chase, avocat, Santa Barbara, Etats-Unis d’Amérique,
comme assistants ;
M. Nick Ritchie, chargé de cours en sécurité internationale à l’Université d’York, Royaume-Uni,
comme conseiller technique. - 6 -
The Government of the United Kingdom of Great Britain and Northern Ireland is represented
by:
H.E. Sir Geoffrey Adams, K.C.M.G., Ambassador of the United Kingdom of Great Britain and
Northern Ireland to the Kingdom of the Netherlands;
Mr. Iain Macleod, Legal Adviser, Foreign and Commonwealth Office,
as Agent;
Mr. Shehzad Charania, Legal Adviser, Embassy of the United Kingdom of Great Britain and
Northern Ireland, The Hague,
as Deputy Agent;
Mr. Christopher Stephen, Assistant Legal Adviser, Foreign and Commonwealth Office,
as Adviser;
Sir Daniel Bethlehem, Q.C., member of the English Bar,
Mr. Guglielmo Verdirame, Professor of International Law, King’s College London, member of the
English Bar,
Mrs. Jessica Wells, member of the English Bar,
as Counsel and Advocates. - 7 -
Le Gouvernement du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord est représenté
par :
S. Exc. sir Geoffrey Adams, K.C.M.G., ambassadeur du Royaume-Uni de Grande-Bretagne et
d’Irlande du Nord auprès du Royaume des Pays-Bas ;
M. Iain Macleod, conseiller juridique au ministère des affaires étrangères et du Commonwealth,
comme agent ;
M. Shehzad Charania, conseiller juridique à l’ambassade du Royaume-Uni de Grande-Bretagne et
d’Irlande du Nord au Royaume des Pays-Bas,
comme agent adjoint ;
M. Christopher Stephen, conseiller juridique adjoint au ministère des affaires étrangères et du
Commonwealth,
comme conseiller ;
sir Daniel Bethlehem, Q.C., membre du barreau d’Angleterre,
M. Guglielmo Verdirame, professeur de droit international au King’s College, Londres, membre du
barreau d’Angleterre,
Mme Jessica Wells, membre du barreau d’Angleterre,
comme conseils et avocats. - 8 -
Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte. La Cour se réunit cet
après-midi pour entendre le second tour de plaidoiries du Royaume-Uni en l’affaire des
Obligations relatives à des négociations concernant la cessation de la course aux armes nucléaires
et le désarmement nucléaire (Iles Marshall c. Royaume-Uni).
Je donne maintenant la parole à sir Daniel Bethlehem. Vous avez la parole.
Sir Daniel BETHLEHEM:
I. Introduction
1. Mr. President, Members of the Court, there is a surreal dimension, of the sliding doors, to
the parallel proceedings before you. In keeping with your injunction, Mr. President, our second
round argument will be responsive to the issues raised by the Marshall Islands in their submissions
on Friday. I anticipate that we will, collectively, be on our feet for just over an hour. I will speak
for about 40 minutes, I will be followed by Professor Verdirame, who will be followed, in turn, by
Mrs. Wells. The United Kingdom Agent, Mr. Macleod, will conclude our presentation with the
United Kingdom’s formal submissions. In the course of my submissions, Mr. President, I will
respond also to the question posed by Judge Bennouna.
2. My submissions will follow under three headings. I will start with some preliminary
observations on the case before you and its wider context (Sec. II). I will then turn to the issue of
the claimed justiciable dispute of which the Marshall Islands would seise the Court and address the
arguments advanced by counsel for the Marshall Islands (Sec. III). I will thereafter address the
issue of the judicial function and also the suggestion by the Marshall Islands that our submissions
somehow amounted to a threat (Sec. IV). They do not, as I will make plain.
II. Preliminary observations
3. Mr. President, Members of the Court, in opening our oral submissions last Wednesday, I
noted that we were here more in sorrow than in anger. There is no hot blood between the
United Kingdom and the Marshall Islands in this case. We recognize and respect their special
interest in the issues that they would bring before the Court, a special interest that is borne of an
historical legacy that is not of their making, and with consequences that are shocking to us all. We - 9 -
have taken no point of standing against them. There are a few in this Great Hall of Justice today, I
amongst them, who was in the Court on the morning of Tuesday, 14 November 1995, when the
Marshall Islands presented their submissions in the Nuclear Weapons Advisory Opinion
1
proceedings . In addition to their counsel, Mr. Kronmiller, who addressed the legal aspects of the
legacy of 67 nuclear tests on their territory with which they were living daily, the Marshall Islands
statement included testimony by Mrs. Lijon Eknilang, the Honourable Council Member of the
Rongelap Atoll Local Government. She spoke in a quiet, dignified tones of the terrible effects that
the atmospheric testing had had on her life and on the lives of the Marshallese. It was the most
affecting testimony that anyone could hear, along with that given by the Mayors of Hiroshima and
Nagasaki in the preceding days . No one who heard that testimony, or who read it, or who is aware
of the legacy of nuclear weapons, whether used in anger or in experiment, could fail to recognize
and to endorse, and to take to heart to pursue the injunction towards good faith negotiations on
effective measures of nuclear disarmament that is found in Article VI of the NPT. I do not tread
into the merits of the case when I say that the United Kingdom has always explicitly acknowledged
the imperative of Article VI of the NPT and has acted and continues to act towards the end that it
mandates. I will return to this issue later in response to the question posed by Judge Bennouna.
4. Mr. President, Members of the Court, I make these observations to underline that we take
the Marshall Islands seriously and would not wish the fact of our objections to jurisdiction and
admissibility to be taken for dismissiveness or a lack of regard for the issues that they raise. We
are neither dismissive nor do we minimize the seriousness of the issues that they highlight. Our
objection to jurisdiction and admissibility is not a contention that the United Kingdom does not
have an obligation under Article VI of the NPT or, indeed, that as one of the NPT nuclear-weapon
States, that we do not have a special responsibility under the Treaty. We do, and we neither shrink
from it nor do we seek to minimize it. That does not detract, however, from the appreciation of law
that the Court lacks jurisdiction to hear this case and that the Application is inadmissible.
5. The Marshall Islands has emphasized that, before the Court, all States are equal, despite
disparities of power and population. That is as it should be. That is the virtue of the law and of the
1CR 1995/32, pp. 18 et seq.
2CR 1995/27, pp. 22 et seq. - 10 -
fact that we, the Parties, are here at the Bar of the Court, below you, addressing a higher authority.
But that equality before the law and before the Court brings also an equality of law. The pain of
the Marshallese experience does not give rise to a special entitlement to found the Court’s
jurisdiction where none would otherwise exist. The virtue of the interest that they seek in their
judgement to expound does not entitle a less exacting scrutiny of their Application than would be
the case if the claim that they seek to advance would have been brought by the United States. The
relief that they would wish from the Court does not become more consonant with the judicial
function simply because it comes with an appeal to sentiment.
6. A great deal of what we heard from Mr. deBrum and Mr. van den Biesen on Friday was
on the merits of the claim. We will not be drawn on this. Mr. deBrum, describing the horrors of a
sky turned blood red, sought to tarnish us with the assertion that we were claiming that these were
“political matters” and that it is for this reason that the Court had no jurisdiction . That is not our
case. Nowhere in our pleading is there a political exception argument. It is the Marshall Islands
that is seeking a latitude from the Court. Our case rests on the law, and that is what we commend
to the Court, on the basis of equality with the Marshall Islands.
III. There is no justiciable dispute over which
the Court has jurisdiction
7. Mr. President, Members of the Court, I turn to the issue of the dispute that the
Marshall Islands asserts, and its justiciability. This was addressed by Professor Condorelli. His
case rests on two pillars; first, that the conduct subsequent to the filing of an application can
properly be relied upon to crystallize a dispute in circumstances in which the existence of a dispute
may not be evident on the date of the filing of the application; and, second, that nowhere in the
Charter or the Statute is there a requirement for prior notice. Along the way, he asserted that an
injured State was entitled to invoke the responsibility of another by the method of filing an
application, in other words, that the filing of an application itself amounted both to notice and the
4
crystallization of the dispute . This argument is significant as it is a departure from the argument
that the Marshall Islands had been advancing up until that point, namely, that they had indeed given
3CR 2016/5, p. 12, para. 25 (deBrum).
4Ibid., pp. 23–24, paras. 11–12 (Condorelli). - 11 -
us prior notice; that the United Kingdom must be deemed to have been aware of the
Marshall Islands claim before the Application was filed, in reliance on the February 2014
Nayarit conference statement. I say no more about this aspect and address now the case as it has
been reformulated.
8. There are a number of features that are striking about Professor Condorelli’s argument that
go to the shortcomings of the Marshall Islands’ case. We do not hold him to account for them. His
sagacity took the points as far as they could go. But they do not go far enough.
9. He addressed Croatia v. Serbia, but only for the purposes of saying that it was not
relevant. He did not say why not, but rested simply on the proposition that conduct subsequent to
the filing of an application may be taken into account for purposes of determining the existence of
a dispute. Other than the filing of the application itself, however, he could point to no subsequent
conduct in support of his case.
10. The Court, in Croatia v. Serbia, addressed exceptions to the requirement that the
existence of a dispute, and hence jurisdiction, must be assessed on the date of the filing of the
Application. None of the exceptions apply here. And, as the Court pointed out in its Judgment,
there are good reasons of judicial policy to require such a rule. Absent such a requirement, no
question could ever arise about the jurisdiction of the Court on the ground of the absence of a
dispute. States would be encouraged to file applications prematurely. There would be no filter to
collusive actions. The contentious jurisdiction of the Court would become an advisory jurisdiction.
What then would stop the Marshall Islands bringing a collusive claim “against” some sympathetic
third State precisely for purposes of obtaining a declaratory judgment of the kind that it now seeks
against the United Kingdom with a view to laying down the law for wider effect. Mr. President,
Members of the Court, in their zeal to pursue their case on the merits, the Marshall Islands is
playing fast and loose with the procedure and jurisdiction of the Court.
11. The same is true for the issue of prior notice. Counsel for the Marshall Islands referred
to Article 43 of the ILC State Responsibility Articles but he then repeated the quotation from the
ILC Commentaries made in the Marshall Islands written statement that the Article was not
concerned with jurisdiction and admissibility. He failed, however, even in his footnote citation to
the written transcript, to identify that the quotation he relied upon was from the Commentaries to - 12 -
5
Article 44, not Article 43 . He also failed to engage at all, in any way, with the argument on this
6
very issue that we had advanced in our submissions on Wednesday . There was no mention of
Nauru v. Australia. There was no mention of the Third Report of the ILC Special Rapporteur.
There was no engagement with the analysis of Georges Abi Saab.
12. The Marshall Islands’ failure to engage on the law extended further. Still on the issue of
prior notice, Professor Condorelli made no mention on Friday of the Court’s Judgments in
Georgia v. Russia and Belgium v. Senegal. Not a word. Both Judgments upheld, and in important
respects turned on, a requirement of prior notice. Instead, the Marshall Islands repeated what they
had said in their written statement, namely, that the Court in Cameroon v. Nigeria had rejected a
requirement of prior notification of the institution of proceedings. Shabtai Rosenne was prayed in
aid of this point as well. But, as the United Kingdom pointed out in our opening submissions, there
is a fundamental difference between prior notification of the institution of proceedings and the prior
notice of a claim as a constitutive part of the condition of the existence of a dispute. Cameroon v.
Nigeria, and Shabtai Rosenne, addressed the former issue, holding that the principle of good faith
could not be relied upon to found a requirement of prior notification of the institution of
proceedings. Nauru v. Australia, ILC Article 43, Georgia v. Russia, Belgium v. Senegal,
Georges Abi Saab, and others, all address the latter issue, holding that the law requires the prior
notice of a claim as a constitutive part of the condition of the existence of a dispute. And, absent
the existence of a dispute at the point of the filing of the application, the Court lacks jurisdiction.
13. Now, we anticipate that, in its rejoinder on Wednesday, the Marshall Islands may be
drawn to refer to Belgium v. Senegal and to proffer the suggestion that it is irrelevant as it turns on
the terms of the optional clause declarations of the parties which required prior negotiation. We
understand that counsel for the Marshall Islands has such a point in mind. Were he to advance it,
however, he would be wrong, as even a basic reading of the Judgment will show.
14. In that case, Belgium advanced two bases of jurisdiction, Article 30, paragraph 1, of the
Convention against Torture and, separately, the parties’ optional clause declarations. The optional
clause declarations were unqualified, however, as regards any requirement of prior negotiation.
5CR 2016/5, p. 23, para. 10 (Condorelli).
6CR 2016/3, pp. 24–25, para. 37. Also, pp. 20–21, paras. 27–28 (Bethlehem). - 13 -
The Court therefore, in assessing its jurisdiction, was not constrained by, and did not address, any
prior notice text in the optional clause declarations. There was none.
15. The Court rejected Belgium’s claim of jurisdiction in respect of its allegations of a
breach of customary international law allegations that did not engage the terms of the
Convention against Torture. In so doing, the Court said as follows, at paragraph 54 of its
Judgment:
“In terms of the Court’s jurisdiction, what matters is whether, on the date when
the Application was filed, a dispute existed between the Parties regarding the
obligation for Senegal, under customary international law, to take measures in respect
of the above-mentioned crimes attributed to Mr. Habré. In the light of the diplomatic
exchanges between the Parties . . . the Court considers that such a dispute did not exist
on that date.”
16. Were counsel to the Marshall Islands to make the suggestion on Wednesday that the
Judgment in Belgium v. Senegal is irrelevant, he would be wrong. The Judgment is plainly
relevant and, indeed, we say it is controlling. That was our understanding and expectation of the
law on 24 April 2014, the date on which the Marshall Islands filed its Application in these
proceedings.
17. Having failed to engage on the jurisprudence, counsel for the Marshall Islands, on
Friday, fell back on the argument that there is nothing in the Charter or the Statute that requires
prior notice. That may well be the case. But nor does the Charter or the Statute define what is
meant by the term “dispute”. These issues are the purview of the Court, and its jurisprudence, and
the law, with roots going back at least to 1992, was reasonably settled for some years before the
Marshall Islands’ filed its Application in this case.
18. And, Mr. President, Members of the Court, let us be clear what the law required of the
Marshall Islands. It required that the Marshall Islands inform the United Kingdom that they
considered the United Kingdom to be in breach of its obligations under Article VI of the NPT, and
the claimed parallel obligation of customary international law, for purposes of affording the
United Kingdom an opportunity to address the claim. Had we failed to do so, a dispute would have
crystallized and an application seising the Court could have followed without fear of challenge on
the grounds now in issue. This is hardly an onerous requirement, but it is an important one. - 14 -
19. Mr. President, Members of the Court, I turn to the question put to the Parties by
Judge Bennouna. Judge Bennouna, you asked that we clarify our position, on 24 April 2014, on
the interpretation and application of Article VI and in what context we implicitly or explicitly
adopted that position.
20. The obligation in Article VI is a cornerstone of the NPT. We have repeatedly
acknowledged not simply that we, alongside other NPT States parties, are subject to this obligation
but also that we, as an NPT nuclear-weapon State, have a special responsibility in this regard. In
pursuit of the imperative of nuclear disarmament, we have acted unilaterally, significantly reducing
not only our own stockpile of weapons but also their delivery systems. We have acted with others,
both NPT nuclear-weapon States and non-nuclear-weapon States to advance the cause of nuclear
disarmament. The document at Annex 2 of our written submissions bears reading, as well as other
reports, documents and statements by the United Kingdom, either alone or jointly with other States,
that are readily available on the United Nations website devoted to successive NPT Review
Conferences and their Preparatory Committees , citations to which will be provided in a footnote to
8
the written transcript of these observations .
21. In operative paragraph 8 of Security Council resolution 984 of 1995, the Security
Council, with the affirmative vote of the United Kingdom,
“[u]rges all States, as provided for in Article VI of the Treaty on the Non-Proliferation
of Nuclear Weapons, to pursue negotiations in good faith on effective measures
relating to nuclear disarmament and on a treaty on general and complete disarmament
9
under strict and effective international control which remains a universal goal” .
This goal and imperative was restated in operative paragraph 5 of Security Council resolution 1887
of 2009, unanimously adopted at the level of Heads of State or Government, in the following terms:
The Security Council
“[c]alls upon the Parties to the NPT, pursuant to Article VI of the Treaty, to undertake
to pursue negotiations in good faith on effective measures relating to nuclear arms
reduction and disarmament, and on a Treaty on general and complete disarmament
7http://www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.shtml
8Inter alia: General Statement by Ambassador Jo Adamson to the 2012 Prep Comm for the NPT, 30 April 2012:
http://www.un.org/disarmament/WMD/Nuclear/NPT2015/PrepCom2012/statement…
NPT/CONF.2015/PC.I/12, 9 May 2012; http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2015/PC.I/12;
NPT/CONF.2015/PC.III/15, 30 April 2014: http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2015/
PC.III/15; NPT/CONF.2015/29: http://www.un.org/en/ga/search/view_doc.asp?symbol=NPT/CONF.2015/29
9
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/984(1995). - 15 -
under strict and effective international control, and calls on all other States to join in
10
this endeavor” .
Under the headline “Historic Summit of Security Council Pledges Support for Progress on Stalled
Efforts to End Nuclear Weapons Proliferation”, the United Nations press release recording the
resolution summarized the statement by then Prime Minister Gordon Brown on the adoption of the
resolution in the following terms:
“by adopting today’s resolution”, he said, “nuclear-weapon States as well as
non-nuclear-weapon States were making a commitment to ridding the world of the
danger of nuclear weapons. The global bargain underlying the Nuclear
Non-Proliferation Treaty based on the obligations of both categories must be
strengthened through a renewed commitment to ensuring compliance and seeking
solutions to technical and policy problems.” 11
22. As I have already noted, as an NPT nuclear-weapon State, we recognize, and have
recalled expressly, including in our statements and reports in the Preparatory Committees leading
up to the 2015 NPT Review Conference, that we have a particular responsibility to fulfil when it
12
comes to efforts to secure nuclear disarmament . In a joint statement with the other NPT
nuclear-weapon States on 3 May 2012, we reaffirmed
“our enduring commitment to the fulfilment of our obligations under article VI of the
Non-Proliferation Treaty” and noted our “determination to work together in pursuit of
our shared goal of nuclear disarmament under article VI, including engagement on the
steps outlined in action 5 of the 2010 Review Conference action plan, as well as other
efforts called for in the action plan” .
23. In our national report published by the United Nations on 30 April 2014 the
United Kingdom addressed, inter alia, a UK–Norway initiative on effective measures for verifying
the dismantlement of nuclear warheads, noting that it was “an important precondition for fulfilling
the goals of article VI of the Non-Proliferation Treaty” and that it was an “example of the
world-leading research the United Kingdom is undertaking to address some of the technical and
14
procedural challenges posed by effective verification of warhead dismantlement” .
10
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1887(2009).
1http://www.un.org/press/en/2009/sc9746.doc.htm.
1http://www.un.org/disarmament/WMD/Nuclear/NPT2015/PrepCom2012/statement…
United_Kingdom.pdf, at paras. 8 et seq.
13
http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2015/PC.I/12, para. 4.
14
http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2015/PC.III/15, para. 13. - 16 -
24. In the extract that I cited in my submissions last Wednesday from the 22 April 2015
15
Report on the implementation of the action plan of the 2010 NPT Review Conference , the
United Kingdom reaffirmed its commitment to a world without nuclear weapons “in line with our
16
obligations under article VI of the [NPT]” .
25. The United Kingdom has repeatedly, without hesitation, without caveat, expressly
reaffirmed our obligations and special responsibilities pursuant to and under Article VI. We have
reported on the steps that we have taken in pursuit of its implementation. We have acted and
continue to act towards the end that it mandates. We have addressed, in our reports and statements,
the complexities that we see in the achievement of the objective that it identifies.
Le PRESIDENT : Sir Daniel, puis-je vous demander de ralentir légèrement votre débit. Cela
rendrait plus facile le travail des interprètes. Excusez-moi. Je vous en prie.
Sir Daniel BETHLEHEM :
26. Mr. President, Members of the Court, Judge Bennouna, there is no neat summary to
which I can refer you that encapsulates the UK’s position on the detail of the interpretation and
application of Article VI. Questions of interpretation and application are issue-specific. The
reports, documents and statements to which I have referred make plain our commitment to
Article VI, identify challenges that lie in its path, and identify the incremental but important steps
that we and others have taken and are taking towards this end. This is the position as it was on
24 April 2014, the date the Marshall Islands filed their Application instituting proceedings.
27. Judge Bennouna asked that each party identify “for its own part” its position on
interpretation and application. We will hear the Marshall Islands on this issue on Wednesday. I
cannot leave the point, however, without a harbinger of what we anticipate from the
Marshall Islands and a word of caution about how this should be construed.
28. The Marshall Islands has failed to engage at all with the Court’s jurisprudence on
Georgia v. Russia and Belgium v. Senegal. It has not engaged in any meaningful way on
Nauru v. Australia or on ILC Article 43. The reason for this is plain. There is little that it can say
1CR 2016/3, p. 12, para. 3.
1http://www.un.org/en/ga/search/view_doc.asp?symbol=NPT/CONF.2015/29, para. 4. - 17 -
beyond contesting the settled quality of the principle of the prior notice of a claim. Similarly, the
Marshall Islands has not engaged in any meaningful way with the principle expressed by the Court
in Croatia v. Serbia, and the long line of cases before it, in which the Court stated that the
existence of a dispute must be assessed at the point of the filing of the Application. And again, the
reason for this is plain. There is little that the Marshall Islands can say beyond asserting the
proposition that the filing of the Application can itself constitute the crystallization of the dispute.
But jurisprudence and commentary are both against them on this.
29. They will, we anticipate, seize Judge Bennouna’s question as a lifeline insofar as it
presents them with an opportunity to do two things which they have not done so far in four rounds
of submissions that they have made to date in their Application, in their Memorial, in their
Statement of Observations, and in their first round of oral submissions. In the first place, the
Marshall Islands will have the opportunity on Wednesday to say, we have heard what the
United Kingdom said on Monday about its views on the interpretation and application on
Article VI on 24 April 2014 and we disagree, and our disagreement is evidenced by this or that
statement of position. The fact that we were not addressing the United Kingdom when we were
expressing our views matters not, so would go their argument. It is enough that there is a public
record of views that are not the same.
30. Such an approach cannot form the basis of the crystallization of a dispute or the
constitutive part of the condition of existence of a dispute. The essential requirement for the
existence of a dispute is that there must be, to quote Abi Saab, an exchange or negotiation between
the contenders. In Georgia v. Russia, the juxtaposition of the parties was plain. The Court was
only prepared to find the existence of a justiciable dispute, however, by reference to the clearly
identified and direct contestation between the parties on the matter in issue before the Court.
31. The same goes for Belgium v. Senegal. Notwithstanding that the Court had already
found a dispute to exist between the parties on some issues within the same overarching claim that
Belgium had brought before the Court, it was not prepared to find that a dispute existed between
the parties on a matter that had not been the subject of expressly identified and direct contestation
between the parties on a matter that Belgium sought to bring to the Court. - 18 -
32. As I indicated in my submissions on Wednesday, we have found nothing in our files of
any statement addressed to the United Kingdom by the Marshall Islands alleging a breach of
Article VI, whether in a bilateral or a multilateral context. We have searched to see whether we
can find any record of a statement or a report or a document by the Marshall Islands of which we
might fairly be presumed to have been aware. We can find nothing. A review of the lists of
participants at the Preparatory Committee meetings of the 2015 NPT Conference disclose no
Marshall Islands participation at the meetings in 2012 or 2013. We are not aware of any statement
or report by the Marshall Islands submitted to the Preparatory Committees. The first NPT
Preparatory Committee meeting at which we can find Marshallese participation is the meeting from
28 April to 9 May 2014, when the delegation was led by Mr. deBrum. That meeting took place
after the Marshall Islands had filed its Application in these proceedings.
33. There can be no basis for the Court to say that a dispute between the Marshall Islands
and the United Kingdom had crystallized on or before 24 April 2014 in the absence of a clear and
direct contestation of views between the Parties. That would be rewriting the law. And, I add, that
the Marshall Islands cannot come before you on Wednesday, with a flourish, and burnish some text
or other that they have not put before the Court to this point, leaving the United Kingdom no
opportunity to comment.
34. The second opportunity that we anticipate the Marshall Islands will seize by reference to
Judge Bennouna’s question will be to say that it is not possible to address the question of the
Parties’ views on the interpretation and application of Article VI at this jurisdictional stage. The
issues of jurisdiction, they would say, ought therefore to be joined to the merits.
35. With respect to such a contention, we reject it utterly. It would be a device to artificially
avoid grappling with the issue that is now before the Court and requires an answer in these
proceedings. The United Kingdom learned through the press, on the filing of the Application in
this case, that the Marshall Islands claims that we are in breach of our disarmament obligation.
This had never once been raised with us before, despite ample opportunity for the Marshall Islands
to have done so. At the point of the filing of the Application on 24 April 2014, there was no
dispute between the Marshall Islands and the United Kingdom on this issue. Not only was there
not a crystallization of opposing views but the Marshall Islands had not expressed any view to the - 19 -
United Kingdom on this matter and the United Kingdom had expressed no view to the
Marshall Islands. This is not a case for the joining of jurisdiction to the merits. The
Marshall Islands claim must stand or fall where it is and it must fall. There is no basis for any
other conclusion.
IV. The judicial function of the Court
36. Mr. President, Members of the Court, I turn to the issue of the judicial function of the
Court. I will come, in a moment, to address what the Marshall Islands has characterized as a threat
by the United Kingdom. Before doing so, it is useful to step back a moment and survey the broader
picture.
37. Quite apart from the position of the United Kingdom and the interests of third States
affected by this claim, the case that the Marshall Islands would bring on the merits engages two
systemic issues that go far beyond the confines of the case. It engages with the complexity of
nuclear disarmament and the multilateral process that is being pursued through the United Nations
Disarmament Commission, the First Committee of the General Assembly, the Conference on
Disarmament, the NPT Review Conferences and Preparatory Committees, and various ad hoc
disarmament negotiations. Even a passing glance at the small number of documents to which I
have referred you today will show that there are complex issues that intrude into this mix, ranging
from the instability caused by North Korean nuclear testing and military posturing to the risk of
decommissioned warheads falling into rogue hands, to the challenges posed by effective
verification of warhead dismantlement, and everything else in between.
38. Into this mix the Marshall Islands would intrude declarations of breach and orders of
performance by the Court directed at one NPT nuclear-weapon State alone.
39. The second systemic issue engaged by this case is the procedure of the Court and its
jurisdiction. However it is cast, the Marshall Islands is seeking a judgment from the Court on the
merits on the interpretation and application of, and compliance, with Article VI for the purposes of
a wider political campaign of nuclear disarmament. It does not hide its intent. The case is cast as a
bilateral dispute impugning the compliance by the UK with its Article VI obligations, but the object
of the case, plainly stated, goes wider. The Marshall Islands took umbrage at our characterization - 20 -
of their claim last Wednesday as “artificial”, given their history and special interest. We do not
question their history and special interest but that does not detract from the appreciation that the
case that they bring against the United Kingdom is artificial. We do not resile from that
description.
40. In pursuit of their public policy objective, the Marshall Islands seeks to persuade the
Court that it should not be required to show the crystallization of, the existence of, a dispute with
the United Kingdom on the date of the filing of its Application. It seeks to persuade the Court that
it is exempt from the requirement to notify the United Kingdom that its responsibility is invoked
and to afford the United Kingdom an opportunity to address the complaint. It seeks to impugn the
conduct of the United Kingdom over decades, including by reference to UK conduct with other
States, but it says, implicitly, that the Court can shade its eyes when it comes to conduct beyond its
temporal jurisdiction or involving States other than the United Kingdom and reach a judgment that
addresses the conduct of the United Kingdom alone. It seeks a judgment that would declare the
United Kingdom in breach and would order the United Kingdom to take specified action, but in a
realm in which the United Kingdom could not have alone secured the cause for which the
Marshall Islands contends and could not do so in the future, whatever the Court might say.
41. Mr. President, Members of the Court, a case can always be made in favour of the virtue
of declaratory relief, of a judgment of a court that simply declares the law. Courts the world over,
however, resist entreaties to declare the law absent a crystallized dispute and an outcome that is
commensurate with their judicial function. There would never be any questions about the
jurisdiction of the Court, or indeed of any court, if a request for a declaration of the law was all that
was necessary to seise the Court and found its jurisdiction.
42. Mr. President, Members of the Court, we maintain our objection to admissibility on the
grounds of the integrity of the judicial function. All that you heard from Mr. Grief, counsel for the
Marshall Islands, on Friday on this issue of relief, falls into one of two camps. The relief requested
either raises questions that go to meaningful effectiveness, given the absence of other essential
parties before the Court whose participation would be fundamental to a negotiation process, or it
goes to the heart of the integrity of the judicial function and the fundamental propriety of ordering
what the Marshall Islands seeks. I used the word “astonishing” in my submissions on Wednesday - 21 -
to describe the relief sought by the Marshall Islands and the possibility that the Court might
17
consider it appropriate to go down this road . The Marshall Islands sought to make much of this,
characterizing it as a threat to the Court. But “astonishing” is the right word. Amongst the
arguments that we heard from Mr. Grief on Friday was that a finding of the Court would require
18
the United Kingdom to cease any action to qualitatively improve its nuclear weapons system . A
judgment that sought to have such an effect would be fundamentally at odds with the very
conclusions of the Court’s 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons in
which the Court held that it could not declare the policy of deterrence to be unlawful, nor indeed
the use of nuclear weapons in circumstances of extremis in which the very life of a nation was at
risk.
43. The Marshall Islands says that it is not asking you to reopen the issues of the legality of
deterrence, or of possession, or of use. But that is exactly what they are asking you to do. The
relief that they seek, in every detail, would have the purpose of curtailing the sovereign political
judgement of the United Kingdom on the question of nuclear disarmament. Whatever they say, the
Marshall Islands is revisiting the substance of the Court’s Advisory Opinion in what they claim is a
bilateral contentious dispute. That is not the function of the Court.
44. Mr. President, Members of the Court, let me address, finally, the Marshall Islands
characterization of the United Kingdom’s position on this aspect as a threat to the Court. It is not.
It is the responsibility of counsel to draw to the Court’s attention the wider ramifications of the
course of action that is urged upon it by the other side. This case is not taking place in a bubble. It
is a source of discussion amongst governments around the world. While a judgment along the lines
of that requested by the Marshall Islands may indeed attract support in some quarters, it would
without doubt raise searching questions about the judicial function, about the equality of law in
proceedings before the Court, about the consistency of the Court’s judgments, and about the
wisdom of optional clause declarations.
45. The United Kingdom has had an optional clause declaration in place since 1930. It is
alone amongst the P5 to have such a declaration. Amongst all the cases entered on the General List
1CR 2016/3, p. 31, para. 55 (Bethlehem).
1CR 2016/5, p. 48, para. 10 (Grief). - 22 -
of the Court since 1946, the United Kingdom has been a party to 14, second only in number behind
the United States. We have been applicant in seven cases, respondent in six cases, in one case
there was a compromis. We have participated actively in 13 of the 26 advisory proceedings that
have come before the Court. We have taken active steps over the years to encourage States to
make optional clause declarations and would claim some credit for the creeping up of these
numbers to the 72 declarations that are now in place. The form of our declaration is often used as a
template. We are a supporter of the judicial process.
46. This is the wider context of our contention on judicial function. It is our perception,
fairly held and forcefully held, that the Marshall Islands claim is playing fast and loose with the
procedure of the Court and with its jurisdiction. We are not alone in that appreciation. The case on
the merits of which the Marshall Islands would seek to seise the Court is not a bilateral dispute.
The Court’s decision on jurisdiction and admissibility will not rest behind a veil of privacy. A
finding of jurisdiction would raise serious questions about the judicial function.
47. Mr. President, Members of the Court, that concludes my submissions on behalf of the
United Kingdom. Mr. President, may I request that you invite Professor Verdirame to the Bar.
Le PRESIDENT : Merci. Je donne la parole au professeur Verdirame.
Mr. VERDIRAME:
I. NTRODUCTION
1. Mr. President, Members of the Court, I will reply to the oral submissions made by
Ms Ashton and Professor Chinkin on behalf of the Marshall Islands on two of the
United Kingdom’s preliminary objections: first, the preliminary objection based on the words “for
the purpose of” in the United Kingdom’s optional clause declaration; and, second, the objection
based on the limitation ratione temporis to the scope of the Court’s jurisdiction. I will need about
15 minutes to make my points.
Preliminary objection based on the words “for the purpose of”
2. Mr. President, I will begin with the proper interpretation to be given to the words “for the
purpose of”. It will be recalled that the terms of the relevant reservation in the UK declaration - 23 -
exclude the jurisdiction of the Court in any dispute where another party has accepted the
compulsory jurisdiction of the Court “only in relation to or for the purpose of the dispute”;
(emphasis added).
3. One novelty in the submissions made by counsel for the Marshall Islands on Friday is that,
in her view, the Court should characterize the difference between “in relation to” and “for the
purpose of” as “a distinction with no difference” . 19
4. Mr. President, I will make only three brief points in reply.
5. First, there is no basis for the proposition that these two locutions present “a distinction
with no difference”. As a matter of plain language, relation and purpose indicate different types of
connection. One thing can relate to another without, however, being its purpose.
6. An acceptance of the compulsory jurisdiction of the Court “only in relation to” a particular
dispute is one where the material scope of the acceptance is designed to fit only that particular
dispute. But acceptance of the compulsory jurisdiction of the Court “for the purpose of” a
particular dispute is a different matter.
7. Mr. President, the principles that govern the interpretation of optional clause declarations,
which I summarized in the first round of oral pleadings , require this Court to pay close attention
to the text of the declaration and give effect to all its terms in line with the intention of the declarant
State.
8. In sharp contrast with these principles, the Marshall Islands are inviting the Court to
ignore the text of the declaration, and proceed on the basis that the words “for the purpose of” add
nothing. This approach is wrong. We ask you to reject it and to proceed on the basis that, as the
terms of the declaration unequivocally indicate, it was the United Kingdom’s intention that the
jurisdiction of the Court should be excluded in the event of any dispute where the compulsory
jurisdiction of the Court was accepted “for the purpose of the dispute”.
9. Secondly, citing Cameroon v. Nigeria, counsel for the Marshall Islands said on Friday that
the UK’s declaration is a “standing offer to the other States which have not yet deposited a
1See CR 2016/5, p. 29, para. 11 (Ashton).
2See CR 2016/3, p. 42, para. 39 (Verdirame). - 24 -
declaration of acceptance” . But the crucial consideration, Mr. President, is that the “standing
offer” is subject to the reservations in the UK declaration. And, under one of those reservations,
the standing offer is expressly not extended to States which accept the compulsory jurisdiction of
the Court only for the purpose of the dispute as is the case here.
10. Thirdly, and finally, Mr. President, in her submissions on Friday, counsel for the
Marshall Islands said that climate change litigation was also one of the purposes of the
Marshall Islands’ acceptance of the Court’s jurisdiction. Yet, nearly three years on, there is no sign
of such litigation. Contrast that with the present litigation which was filed on the earliest arguable
opportunity. Counsel for the Marshall Islands accepted that the timing of the filing of the
22
Application was not a coincidence . Indeed, it clearly was not. To paraphrase the dictionary
definition of the term “purpose” which I mentioned in my first speech : 23 the admittedly
non-coincidental timing of the Application gives this Court a sufficient basis for finding that the
filing of this dispute was what the Marshall Islands “set out to do or attain” with its acceptance of
the Court’s jurisdiction; and that the filing of this dispute was the “object it had in view” upon the
making of that acceptance.
Preliminary objection ratione temporis
11. Mr. President, Members of the Court, I will now move to the limitation ratione temporis,
the effect of which is to exclude from the jurisdiction of the Court any dispute with regard to
situations or facts prior to the material date.
12. In her submissions on Friday, counsel for the Marshall Islands said that “the source or
real cause of the Marshall Islands’ dispute with the UK . . . cannot pre-date the moment at which
the legal relationship between the two States under that Treaty was established” . But the question
is: does it pre-date that moment? Does the situation with regard to which the Marshall Islands
brought its complaint against the United Kingdom precede 1995 or not? It is not good enough for
the Marshall Islands to say that it does not. They have to show that the complaint they submitted to
21
See CR 2016/5, p. 32, paras. 23-24 (Ashton).
22Ibid., p. 30, para. 14 (Ashton).
23See CR 2016/3, p. 43, para. 42 (Verdirame).
24
See CR 2016/5, p. 35, para. 13 (Chinkin). - 25 -
the Court does in fact relate to a situation that arose after 1995. But this Mr. President is
precisely what they failed to do again on Friday.
13. Mr. President, in the Chapter of the Marshall Islands’ Memorial entitled “UK Breaches”,
the Marshall Islands submitted that the UK’s alleged delay in fulfilling its obligations under
25
Article VI is “manifestly unreasonable” and I quote “[f]orty-five years after entry into force of the
NPT”. The question that frames their complaint is this: was UK conduct over the last 45 years
“manifestly unreasonable” in terms of the obligations under Article VI? It is evident,
Mr. President, that the Court lacks the necessary temporal jurisdiction for addressing this question.
14. The Marshall Islands now seek to recast the terms of their complaint, and suggest that
their claim is entirely in relation to post-1995 conduct. There are three reasons, Mr. President and
Members of the Court, why this attempt by the Marshall Islands to solve their ratione temporis
difficulties must fail.
15. First, the case was pleaded as relating to a course of conduct spanning over at least
45 years. It is this continuing situation, defined by those temporal co-ordinates, which gave rise,
26
according to the Marshall Islands, to the continuing breaches . Even the instances of post-1995
conduct which the Marshall Islands now seek to extract from the case are on their own
analysis a continuation of a course of conduct that began prior to 1995. When they refer to the
UK statements in 1998 about continuing to maintain continuous-at-sea nuclear-armed patrols, they
accept that the “Royal Navy has maintained unbroken nuclear weapon patrols since 1968” . And 27
where they refer to the Mutual Defence Agreement with the United States, they also admit that it
“was originally concluded in 1958 and has been extended several times throughout its history, most
28
recently in 2014” .
16. Mr. President, Members of the Court, it is to the case as pleaded by the Marshall Islands
in its Application and Memorial that the ratione temporis limitation must be applied. Not to their
case as recast in response to our Preliminary Objections in October, in their submissions on Friday,
25
Memorial of the Marshall Islands (MMI), paras. 213 and 221.
26Application of the Marshall Islands (AMI), para. 7.
27
MMI, para. 35.
28
Ibid., para. 61. - 26 -
or as that they may yet attempt to further recast in their closing submissions on Wednesday. And
the case they brought to the Court was not based on distinct situations, but on a whole continuing
situation dating back to 1970 and, in some cases, beyond.
17. Secondly, in three of its Orders on Legality of Use of Force, the Court found that the
29
dispute in that case concerned the legality of a situation “taken as a whole” . Mr. President, the
position is even clearer here, as the Court does not even need to ascertain whether the situation
should be “taken as a whole” or as a plurality of situations. For here it is the applicant State itself
which expressly characterized the situation as having to be taken as a whole as a continuing
situation running over at least 45 years.
18. The Marshall Islands relied in their oral submissions on Friday on the Order of the Court
on Italy’s Counter-Claim in Jurisdictional Immunities of the State . But for the purposes of the
present case, the crucial point in that Order is this: the Court found that while a whole string of
conduct including the conclusion and entry into force of two treaties which might have afforded
a legal basis for a potential dispute was within its temporal jurisdiction, that still failed to create
a “new situation”; and that was so because the situation that gave rise to the dispute remained
“inextricably linked to an appreciation of the scope and effect” of a prior treaty provision and of
prior State practice thereupon.
19. Mr. President, Members of the Court, if for the sake of argument there is a dispute
in this case, the entry into force of the NPT between the UK and the Marshall Islands in 1995 might
offer the legal basis for such a dispute; but the source of the dispute would still be “inextricably
linked to an appreciation of” pre-1995 conduct. It is a single interconnected and inextricably linked
situation which is not susceptible to being parsed up.
20. The third reason why there cannot be jurisdiction over only a portion of the situation
follows from the very logic of the Marshall Islands’ initial plea that the UK’s alleged delay was
29Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 134, para. 28; Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999 (I), p. 269, para. 27; Legality of Use of Force (Yugoslavia v. Portugal), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 667, para. 27.
30See CR 2016/5, p. 35, para. 13 (Chinkin).
31
Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports
2010 (I), p. 320, para. 28; and joint declaration of Judges Keith and Greenwood, pp. 326-328, paras. 10-15. - 27 -
“manifestly unreasonable” when assessed over 45 years. If we take the case as pleaded by the
Marshall Islands, the Court would need to look at 45 years to appreciate whether the conduct of the
UK in respect of Article VI has been “manifestly unreasonable” or not. It may however well be the
case that crucial factors demonstrating the reasonableness of the UK’s conduct can only be
appreciated over that period of time.
21. Mr. President, Members of the Court, the Marshall Islands are now seeking to extract the
post-1995 conduct to bring their case into the temporal jurisdiction of the Court. They cannot do
so. The situation with regard to which their alleged dispute arose is one which their pleadings
characterized as having to be taken as a whole continuing situation which began well before 1995.
And, no less importantly, it is one that would also have to be viewed objectively as interconnected
and indivisible.
22. Mr. President, this characterization of the situation as inseparable and indivisible also
explains why the Marshall Islands are not assisted by the distinction, in Electricity Company of
Sofia and Bulgaria, between prior situations or facts the existence of which is merely
“presupposed”, and situations or facts in regard to which a dispute arises. In that case, the Court
found jurisdiction because it determined that “[t]he complaints made in this connection by the
Belgian Government relate to” decisions of the Bulgarian authorities “subsequent to the material
32
date” . By contrast, the complaints made here by the Marshall Islands related to an indivisible
situation, treated as such by the Applicant and pre-dating the material date.
23. Mr. President, there is another reason why the post-1995 conduct would in in any event
fall outside the jurisdiction of the Court. But this aspect is for my colleague, Mrs. Wells, to
address.
24. Mr. President, Members of the Court, I have come to the end of my submissions today. I
thank you for your attention and would now ask you to give the floor to Mrs. Wells.
Le PRESIDENT : Merci. Je donne la parole à Mme Jessica Wells.
3Electricity Company of Sofia and Bulgaria Judgment, 1939 P.C.I.J., Series A/B No. 77, p. 82. - 28 -
Mrs. WELLS:
1. Mr. President, Members of the Court, in my reply submissions on the “essential parties”
objection, I wish to deal briefly with three authorities which were addressed by Professor Palchetti
on Friday afternoon and one which was not.
2. On Friday afternoon, Professor Palchetti suggested that I “had attempted to introduce a
new test in order to determine the applicability of the Monetary Gold principle” namely that
“the key question is ‘whether the effect of the Court’s judgment will be to evaluate (expressly or by
implication) whether a third State’s conduct is unlawful under international law’” . 33
3. Mr. President, Members of the Court, this is not a formulation which the United Kingdom
has conjured up out of thin air: it is taken directly from the Court’s Judgment in the East Timor
case, at paragraph 29, a statement which I will repeat for the Court’s convenience. The Court in
East Timor said:
“Whatever the nature of the obligations invoked, the Court could not rule on the
lawfulness of the conduct of a State when its judgment would imply an evaluation of
34
the lawfulness of the conduct of another State which is not a party to the case.”
4. This is a passage which the United Kingdom quoted in both its written Preliminary
35 36
Objections and in oral submissions last Wednesday . Significantly, however, Professor Palchetti
did not once refer to the East Timor case in his presentation. Mr. President, Members of the Court,
that was not an oversight on Professor Palchetti’s part but rather an eloquent admission that the
East Timor Judgment is against him.
5. I will now turn to the three new cases which Professor Palchetti introduced into his
analysis of the “essential parties” principle.
37
6. First, Professor Palchetti emphasized that in the Obligation to Negotiate Access to the
Pacific Ocean case, the Court observed that: “[t]o identify the subject-matter of the dispute, the
33
CR 2016/5, p. 42.
34East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.
35POUK, para. 102 (b).
36
CR 2016/3, p. 53.
37CR 2016/5, p. 39, para. 4. - 29 -
Court bases itself on the application, as well as the written and oral pleadings of the parties. In
particular, it takes account of the facts that the applicant identifies as the basis for its claim.”
7. Mr. President, Members of the Court, the Bolivia v. Chile case is not an “essential parties”
case, nor, as Sir Daniel Bethlehem explained last Wednesday, is it a case which concerned the
existence of a dispute per se . Nonetheless, it is perhaps of some relevance to the present issue.
The contention in Bolivia v. Chile was that the dispute was not as it had been characterized by the
applicant in that case . It could be said that there is a similar issue of characterization between the
parties in this case. Professor Palchetti asserted that “[t]he Application does not ask the Court to
adjudge that States possessing nuclear weapons are jointly responsible” . The United Kingdom
takes issue with this characterization and, in the United Kingdom’s submission, if one applies the
Bolivia v. Chile observation and looks at the facts which the Marshall Islands have identified as the
basis for their claim, it is clear that the claim is, in reality, founded on the bilateral and/or shared
conduct of States which are not party to these proceedings. If anything, therefore, the Bolivia v.
Chile approach serves to reinforce the fourth guiding principle which I drew from my analysis of
the East Timor case last Wednesday namely that the Court must consider whether in substance
the Application affects the interests of third States . 41
8. Secondly, Professor Palchetti cited the Court’s Judgment in the Pulp Mills case and, in
particular, the conclusion that Uruguay, by authorizing the construction of the mills and port
terminal at Fray Bentos, had failed to comply with the obligation to negotiate contained in the
1975 Statute between itself and Argentina. In the present case, Professor Palchetti suggested, the
Marshall Islands are simply asking the Court to do the same that is, to focus on the conduct of
the United Kingdom in order to establish whether that conduct is compatible with the
42
United Kingdom’s obligations under Article VI of the NPT .
9. Mr. President, Members of the Court, the Pulp Mills case is not an “essential parties” case.
There are two key distinctions:
38
CR 2016/3, p. 17.
39Ibid.
40CR 2016/5, p. 39.
41
CR 2016/3, p. 54.
42CR 2016/5, p. 40. - 30 -
One: the obligation at issue in the Pulp Mills case was an obligation to conduct bilateral
negotiations which was contained in a bilateral treaty between Argentina and Uruguay; and
Two: the conduct relied upon in Pulp Mills as giving rise to the breach of the obligation to
negotiate was the conduct of Uruguay alone.
10. In the Pulp Mills case, therefore, there was simply no question that the Court’s Judgment
would involve any express or implied evaluation of the lawfulness of the conduct of any third
State. It therefore has nothing to say on the application or scope of the “essential parties” principle
in this case, or indeed at all.
11. Thirdly, Professor Palchetti referred to the Application of the Interim Accord case, in
support of his proposition that the Court can consider the United Kingdom’s voting record in the
43
General Assembly without considering the legal position of third States .
12. Mr. President, Members of the Court, before I address the relevance or, more
accurately, the irrelevance of the Interim Accord case, I would note that Professor Palchetti
described the United Kingdom’s submission as being that “the Court cannot assess the lawfulness
of its voting records because this would have implications for the legal positions of third States” . 44
This is a mischaracterization of the United Kingdom’s position. The issue is not whether the
United Kingdom’s voting pattern is unlawful per se, but whether its conduct in that respect
constitutes or evidences a breach of the United Kingdom’s Article VI obligation to negotiate. The
United Kingdom contends that the Court cannot decide this without inevitably also evaluating
whether the same conduct of third States constitutes a breach of their Article VI obligation.
13. Returning to the Interim Accord case, Greece had agreed, under the Interim Accord, not
to object to the membership by the former Yugoslav Republic of Macedonia of international,
multilateral or regional organizations, unless its objection related to the name by which Macedonia
would be referred in such an organization. Macedonia contended that Greece had breached this
obligation by objecting to its admission to NATO. The issue of Macedonia’s admission had been
considered at a meeting of NATO States, but NATO had deferred any invitation to join until a
mutually acceptable solution to the name issue had been reached.
4CR 2016/5, p. 43.
4Ibid. - 31 -
14. Greece, citing the Monetary Gold case law, objected to the Court’s jurisdiction,
inter alia, on the basis that the decision to defer the invitation to Macedonia to join NATO was a
collective and unanimous decision and that consequently, even if NATO’s decision could be
attributed to Greece, the Court could not decide this point without also deciding on the
45 46
responsibility of NATO and its member States . The Court rejected this objection .
15. Mr. President, Members of the Court, it is entirely unsurprising that the Court rejected
Greece’s attempt to squeeze its objection into the “essential parties” principle. The only obligation
at issue was Greece’s obligation, under the Interim Accord, not to object to Macedonia’s
membership of organizations. The Court’s decision as to whether Greece had breached that
obligation therefore would not and could not have involved any express or implied evaluation of
the lawfulness of the conduct of NATO or its member States for the simple reason that neither
NATO nor its member States were bound by the obligation. There was simply no suggestion that
NATO or its constituent States were bound by, or in breach of, any obligation not to object to
Macedonia’s application to join NATO, whether arising under the Interim Accord or elsewhere.
16. By contrast, the obligation at issue in the present case does bind the other NPT States and
47
the Court’s decision will, for the reasons which I explained last Wednesday , inevitably constitute
an evaluation of the lawfulness of the conduct of States which are not parties to these proceedings.
17. For these reasons and for the reasons which have been outlined in the United Kingdom’s
written submissions and earlier oral submissions, the subject-matter of the Marshall Islands’ case
does indeed engage the “essential parties” principle.
18. Mr. President, Members of the Court, Professor Verdirame has explained why the Court
cannot separate those allegations that arise after 1995 from those that arise before 1995 and decide
the case on that basis. Similarly, if there should be any suggestion that the Court should select only
those allegations that might be said to be directed at the United Kingdom alone, and decide the case
on that basis, I would repeat that the Court cannot separate out the Marshall Islands’ case in this
way.
4Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v. Greece),
Judgment, I.C.J. Reports 2011 (II), p. 659, para. 39.
4Ibid., p. 660, para. 42.
47
CR 2016/3, pp. 55-57. - 32 -
first: the Marshall Islands have pleaded their case carefully in their three written submissions.
It is not the function of the Court to refine or redefine the case as pleaded;
secondly: there is an inextricable link between the conduct of the United Kingdom and conduct
of third States both in terms of putting in context the allegations that the United Kingdom has
failed to perform its obligations in good faith and in terms of the specific allegations made
against the United Kingdom; and
thirdly: The Marshall Islands cannot now try to resolve their “essential parties” problem by
resiling from any allegations which might implicate the conduct of third States. The
Marshall Islands have alleged that the United Kingdom has failed to perform its obligations in
good faith. If, contrary to the United Kingdom’s objections, the Court were to find that it does
have jurisdiction, the United Kingdom would be entitled to address its conduct within the full
sweep of its participation in the NPT and other fora and to address the full detail of the
allegations made against it. The United Kingdom’s response on the merits may necessarily and
legitimately, therefore, have to rely upon the conduct of third States and require the Court to
evaluate the lawfulness of that conduct.
19. Mr. President, Members of the Court, that concludes my reply submissions on the
“essential parties” objection. I thank you for your attention and I would ask you now to give the
floor to the United Kingdom’s Agent, Mr. Iain Macleod, to conclude the United Kingdom’s oral
submissions.
Le PRESIDENT : Je vous remercie. Je donne la parole à l’agent du Royaume-Uni,
M. Macleod.
Mr. MACLEOD:
1. Thank you Mr. President, Members of the Court. That concludes the oral argument for
the United Kingdom for this afternoon and we are grateful to you for listening patiently to us. It
remains for me in accordance with Article 60 of the Rules of Court to confirm the final
submissions of the United Kingdom.
2. Mr. President, Members of the Court, for the reasons given in our written preliminary
objections and at these oral hearings: - 33 -
“The United Kingdom requests the Court to adjudge and declare that:
it lacks jurisdiction over the claim brought against the United Kingdom by the
Marshall Islands
or that
the claim brought against the United Kingdom by the Marshall Islands is
inadmissible or, indeed, to make both findings.”
3. I thank you, Mr. President.
Le PRESIDENT : La Cour prend acte des conclusions finales dont vous venez de donner
lecture au nom du Royaume-Uni.
La Cour se réunira de nouveau en cette affaire le mercredi 16 mars, à 15 heures, pour
entendre le second tour de plaidoiries des Iles Marshall.
Je vous remercie. L’audience est levée.
L’audience est levée à 16 h 10.
___________
Public sitting held on Monday 14 March 2016, at 3 p.m., at the Peace Palace, President Abraham presiding, in the case regarding Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom)