INTERNATIONAL COURT OF JUSTICE
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Press Release
Unofficial
No. 2016/31
5 October 2016
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. United Kingdom)
The Court upholds the first preliminary objection to jurisdiction raised by the
United Kingdom, based on the absence of a dispute between the Parties,
and finds that it cannot proceed to the merits of the case
THE HAGUE, 5 October 2016. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, today delivered its Judgment on the preliminary objections
raised by the United Kingdom in the case regarding Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United
Kingdom).
In its Judgment, which is final and without appeal, the Court
(1) Upholds, by eight votes to eight, by the President’s casting vote, the first preliminary
objection to jurisdiction raised by the United Kingdom, based on the absence of a dispute between
the Parties;
(2) Finds, by nine votes to seven, that it cannot proceed to the merits of the case.
The Court’s reasoning
The Court recalls that the Marshall Islands filed an Application against the United Kingdom
alleging a failure to fulfil its obligations under Article VI of the 1968 Treaty on the
Non-Proliferation of Nuclear Weapons, and corresponding customary international law obligations,
concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament.
The United Kingdom raised five preliminary objections to the jurisdiction of the Court and the
admissibility of the Application, and the Marshall Islands requested the Court to reject these
preliminary objections. The Court first considers the United Kingdom’s preliminary objection
based on the alleged absence of a dispute between the Parties at the time of the filing of the
Application.
The Court observes that the existence of a dispute between the Parties is a condition of the
Court’s jurisdiction. It recalls that, in order for a dispute to exist, the two sides must hold clearly
opposite views concerning the question of the performance or non-performance of certain
international obligations. It states that a dispute exists when the evidence demonstrates that the - 2 -
respondent was aware, or could not have been unaware, that its views were positively opposed by
the applicant. It notes that the existence of a dispute is to be determined in principle as of the date
the application is submitted.
The Court turns to the Marshall Islands’ assertion that its statements in multilateral fora
show that there was a dispute between it and the United Kingdom. It observes that the Marshall
Islands refers in particular to a statement made at the High-level Meeting of the General Assembly
on Nuclear Disarmament, on 26 September 2013 by its Minister for Foreign Affairs, “urg[ing] all
nuclear weapons states to intensify efforts to address their responsibilities in moving towards an
effective and secure disarmament”, and a statement made by its representative at Nayarit, Mexico,
on 13 February 2014, in the context of the Second Conference on the Humanitarian Impact of
Nuclear Weapons, which reads as follows:
“[T]he 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 fulfil 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.”
The Court finds that the first statement is formulated in hortatory terms and cannot be understood
as an allegation that the United Kingdom was in breach of any of its legal obligations. As to the
second statement, the Court notes that it was made at a conference at which the United Kingdom
was not present, and which was dealing not with the question of negotiations with a view to nuclear
disarmament, but with the broader question of the humanitarian impact of nuclear weapons.
Moreover, the statement is a general criticism of the conduct of all nuclear-weapon States and does
not specify the conduct of the United Kingdom allegedly in breach of its obligations. The Court
holds that, given its very general content and the context in which it was made, that statement did
not call for a specific reaction by the United Kingdom, so no opposition of views can be inferred
from the absence of any such reaction. The Court also observes that none of the other more general
statements relied on by the Marshall Islands supports the existence of a dispute. The Court
concludes that, on the basis of those statements whether taken individually or together it
cannot be said that the United Kingdom was aware, or could not have been unaware, that the
Marshall Islands was making an allegation that United Kingdom was in breach of its obligations.
These statements were thus insufficient to bring into existence a legal dispute between the Parties.
The Court then considers the Marshall Islands’ argument that the filing of the Application
and the Parties’ positions during the proceedings show the existence of a dispute. The Court states
that although statements made or claims advanced in or even subsequently to the Application may
be relevant for various purposes notably in clarifying the scope of the dispute submitted they
cannot create a dispute de novo, one that does not already exist.
The Court then examines the Marshall Islands’ argument that a dispute may be established
based on the Parties’ voting records in multilateral fora on nuclear disarmament. In the Court’s
view, considerable care is required before inferring the existence of a dispute from votes cast on
resolutions before political organs such as the General Assembly. It concludes that a State’s vote
on resolutions containing a number of propositions cannot in itself establish the existence of a
dispute between that State and another State regarding one of those propositions.
Finally, the Court turns to the Marshall Islands’ argument that a dispute between the Parties
can be inferred from the United Kingdom’s conduct. The Court recalls that none of the Marshall
Islands’ statements made in multilateral fora offered any particulars regarding the United
Kingdom’s conduct. In this context, the Court concludes that the United Kingdom’s conduct
cannot show an opposition of views and does not provide a basis for finding a dispute between the
two States. - 3 -
The Court therefore concludes that the United Kingdom’s first preliminary objection must be
upheld. It further concludes that, lacking jurisdiction under Article 36, paragraph 2, of its Statute,
it cannot proceed to the merits of the case. Given this conclusion, the Court finds no need to
consider the other preliminary objections raised by United Kingdom.
*
Composition of the Court
The Court was composed as follows: 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.
President BRAHAM appends a declaration to the Judgment of the Court;
Vice-President USUF appends a dissenting opinion to the Judgment of the Court; JudWADAO
and T OMKA append separate opinions to the Judgment of the Court; Judges BENNOUNA and
CANÇADO TRINDADE append dissenting opinions to the Judgment of the Court; Judges XUE,
D ONOGHUE and G AJA append declarations to the Judgment of the Court; JudgEBUTINDE and
BHANDARI append separate opinions to the Judgment of the Court; Judges ROBINSON and
CRAWFORD append dissenting opinions to the Judgment of the Court; Judge ad hocEDJAOUI
appends a dissenting opinion to the Judgment of the Court.
*
A summary of the Judgment appears in the document “Summary No. 2016/5”. This press
release, the summary of the Judgment and its full text can be found on the Court’s website
(www.icj-cij.org), under the heading “Cases”.
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Note: The Court’s press releases do not constitute official documents.
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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in
April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are without appeal for the parties concerned); and,
second, to give advisory opinions on legal questions referred to it by duly authorized United
Nations organs and agencies of the system. The Court is composed of 15 judges elected for a
nine-year term by the General Assembly and the Security Council of the United Nations.
Independent of the United Nations Secretariat, it is assisted by a Registry, its own international
secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official
languages of the Court are French and English. Also known as the “World Court”, it is the only
court of a universal character with general jurisdiction. - 4 -
The ICJ, a court open only to States for contentious proceedings, and to certain organs and
institutions of the United Nations system for advisory proceedings, should not be confused with the
other mostly criminal judicial institutions based in The Hague and adjacent areas, such as the
International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the
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court, established by treaty, which does not belong to the United Nations system), the Special
Tribunal for Lebanon (STL, an international judicial body with an independent legal personality,
established by the United Nations Security Council upon the request of the Lebanese Government
and composed of Lebanese and international judges), or the Permanent Court of Arbitration (PCA,
an independent institution which assists in the establishment of arbitral tribunals and facilitates
their work, in accordance with the Hague Convention of 1899).
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Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Information Officer (+31 (0)70 302 2337)
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Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom) - The Court upholds the first preliminary objection to jurisdiction raised by the United Kingdom, based on the absence of a dispute between the Parties, and finds that it cannot proceed to the merits of the case