Written reply of India to the question put by Judge Cançado Trindade at the public sitting held on the morning of 16 March 2016

~ 4~i~ ê1~ tl,
MINISTRY OF EXTERNAL AFFAIRS
NEW DELHI

23 March 2016

Excellency,

Reference the question posed by Judge CancadoTrindade at the conclusion
of oral hearings on 16 March 2016 in the case regarding Obligations concerning
Negotiations relating to Cessationof Nuclear ArmsRaceandto Nuclear Disarmament
(Marshall Islands v lndia).

ln this regard kindly find enclosed the responseof lndfa.

Please acceptassurancesof my highest consideration.

'.f.-t.kY\..-

[Dr. \ eru Chadha]
Agent of the Republic of lndia

before the International Court of Justice

Mr. Phfllippe Couvreur
Registrar
International Court of Justice
Peace Palace
The Hague Netherlands

1

\
\
1 Obligations concerning Negotiations relating to Cessation of Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v lndia)

lndia's response to the question from Judge Cançado Trindade

1. Judge Cançado Trindade on conclusion of the Oral hearings on 16 March

2016, put the following question to the Parties:

"ln the course of the written submissions and oral arguments, the two
contending Parties, the Marshall Islands and lndia, beth referred to U.N.
General Assembly resolutions on nuclear disarmament. Parallel to the
resolutions on the matter which go back to the early 70's (First
Disarmament Decade), there have been two more recent series of
General Assembly resolutions, namely: those condemning nuclear
weapons, extending from 1982 to date, and those adopted as a follow-up
to the 1996 I.C.J. AdvisoryOpinionon Nuclear Weapons, extending so far

from 1997 to 2015. ln relation to this last series of General Assembly
resolutions, - referred to by the contending Parties, - 1would like to ask
beth the Marshall Islands and lndia whether, in their understanding, such
General Assembly resolutions are constitutive of an expression of opinio
juris, and, if so, what in their view is their relevance to the formation of
a customary international law obligation to pursue negotiations leading to
nuclear disarmament, and what is their incidence upon the question of
the existence of a dispute between the Parties." 1

2. The contribution of General Assembly Resolutions to the formation of

customary international was examined by ICJ in the Legality of Nuclear
Weapons case where certain States were of the view that, "the important series

of General Assembly resolutions, beginning with resolution 1653 (XVI)of 24

November 1961, that deal with nuclear weapons and that affirm, with consistent
regularity, the illegality of nuclear weapons, signify the existence of a rule of

international customary law which prohibits recourse to those weapons".

However according ta other States "the resolutions in question have no binding

character on their own account and are not declaratory of any customary rule of
prohibition of nuclear weapons; sorne of these States have also pointed out that

'CR 2016/8, 16March 2016, p. 38 (Judge Cançado Trindade).

1 this series of resolutions not only did not meet with the approval of all of the

nuclear-weapon States but of many other States as well". 2

3. ln its 1996 Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, the Court held that

"General Assembly resolutions, even if they are not binding, may
sometimes have normative value. They can, in certain circumstances,
provide evidence important for establishing the existence of a rule or the

emergence of an opinio juris. To establish whether this is true of a given
General Assemblyresolution, it is necessary to look at its content and the
conditions of its adoption; it is also necessary to see whether an opinio
juris exists as to its normative character. "3

4. These criteria are equally relevant in the present case for the Resolutions

adopted subsequent to this AdvisoryOpinionfor testing the existence of rule of
customary international law putting a legal obligation on States to pursue

negotiations in good faith towards nuclear disarmament.

5. The U.N. General Assembly resolutions identified in Judge Cançado

Trindade's question can be divided in two categories.

6. The first category consists of resolutions advocating measures of restraint
with a view to slowing down vertical proliferation and/or increasing restraints

on nuclear use. These include lndia's resolution on the Convention on the

Prohibition of the use of Nuclear Weapons tabled since 1982 as well as the
lndia's resolution tabled since 1998 on reducing nuclear danger. This category

could include the so-called •freeze' resolutions tabled from 1982to 1992.

7. lt could also include the resolution on a Fissile Material Cut-off Treaty

(FMCT)to prohibit the production of fissile material for nuclear weapons and

other nuclear explosive deviees.

2I.C.J., AdvisoryOpinion, 8 July 1996,Legality of the Threat or Use of Nuclear Weapons, Reports
1996,p . 254,para.68.
3Ibid., pp. 254-255, para. 70.

2 8. ln a sense these resolutions even though voted upon imply an acceptance

of the reality of the existence of nuclear weapons and focus on practical
measures to strengthen non-proliferation in aU its aspects and to diminish the

role of nuclear weapons in international affairs and security doctrines to ease

the path to their elimination. These resolutions propose specifie measures to
facilitate as a final objective nuclear disarmament but do not in themselves

constitute comprehensive proposals for the global elimination of nuclear

weapons.

9. The second category includes resolutions advocating complete
elimination of nuclear weapons or taking forward multilateral nuclear

disarmament negotiations either through a step by step approach or a more

comprehensive approach.

1O. This category includes the nuclear disarmament resolutions tabled by

Myanmar since 1996, the resolutions on taking forward multilateral nuclear

disarmament negotiations tabled since 2012 and the resolutions on follow up to
the advisory opinion of the ICJ since 1996. These resolutions contain various

proposals forthe complete elimination of nuclear weapons.

11. Noneof the resolutions of the second category was a consensus resolution

that could be adopted without voting. The voting record on the ICJ resolution
over the years (as reproduced below) is illustrative. Approximately 2/Jrd of the

member States of the UNvote in faveur of the resolution, while nearly 1 13rd

either abstain or vote against. ln 2015, for example, in the voting on the ICJ
resolution in the General Assembly Plenary, among the 49 countries that voted

against or abstained, there were 48 states which are party to the NPT,including
4 of the nuclear weapon states party to the NPT(voting record attached). Even

the biennial resolution on follow-up to nuclear disarmament obligations agreed

to at the review conferences of the parties to the NPT remains a voted
resolution with 60 states either voting against or abstaining on the resolution

tabled in 2015.

3 Year Yes-No-

Abstain

1996 115-22-32

1997 116-26-24

1998 123-25-25

1999 114-28-22

2000 119-28-22

2001 111-29-21

2002 117-30-24

2003 124-29-22

2004 132-29-24

2005 126-29-24

2006 125-27- 29

2007 127-27-27

2008 127-30-23

2009 124-31-21

2010 133-28-23

2011 130-26-23

2012 135-22-26

133-24-25
2013

2014 134-23-23

2015 137-24-25

12. Further, in recent years, within the second category of resolutions, there

has been an increase in the number of voted resolutions advocating a specifie

approach to nuclear disarmament.

4 1 :

1 13. Pertinent examples of this recent trend are the resolution on follow-up to
the 2013 High-Level Meeting of the General Assembly on nuclear disarmament,

which proposes the negotiation in the CDof a Comprehensive Nuclear Weapons

Convention, the resolution on setting up an Open-Ended WorkingGroup (OEWG)as

well as the resolution on the Humanitarian consequences of nuclear weapons. This

illustrates that the international community remains divided bath on the process
for achieving as well as the substantive form and content of international

obligations on the complete elimination of nuclear weapons.

14. The lack of unanimity and the abstention or negative vote of States whose

interests are specially affected cast doubt on the normative value of these UNGA

resolutions and on the existence of an opinio juris.

15. lndia reiterates that its constant sponsoring and support of the ICJ

resolution at the General Assembly is the expression of its commitment, as

underlined by the 1996 AdvisoryOpinion of the ICJ, to pursue in good faith and

bring to a conclusion negotiations leading to nuclear disarmament in aUits aspects
under strict and effective international control. lndia's support to the resolution

also underlines that nuclear disarmament cannat be achieved save and except

through a multilateral platform.

16. The recent voting record of the Marshall Islands demonstrates the Parties'
common support of these resolutions and of nuclear disarmament. Moreover,

"[g]iven the public statements made by the highest representatives of the Parties,

such as those [made at the Nayarit Conference], [the Marshall Islands] could not
4
have misunderstood the position of [lndia]" • And"[i]t is apparent from these

statements that the Parties [did not hold] opposing views§ on the question of
pursuing in good faith and bring to a conclusion negotiations leading to nuclear

disarmament in all its aspects under strict and effective international control.

4I.C.J., Judgment17March 2016,AllegedViolationsofSovereign RightsandMaritimeSpacesin the
CaribbeanSea(Nicaragua v.Colombia),par. 73.
sIbid.para. 6g.

5 17. lndia's view, as outlined in its written counter-memorial as well as its oral
pleadingson March 10 and March 16 is that the evolution of an opinio juris would

be facilitated by a number of measures,induding reaffirmation of the unequivocal

commitment by all nudear weapon states to the goal of complete elimination of

nudear weapons and an agreement on a step by step process underwritten by

universal commitment for the global elimination of nudear weapons.This step-by­

step processshouldalso have a place for measuresof the kind envisagedunder the

resolutions in the first category mentioned above so that the role of nuclear
weaponscan be diminished over time ashasalsobeen emphasisedby the RMI.The

steps that lndia has strongly advocated for will hopefully result in this being

achieved, and a time may come when an opinio juris would evolve that would

promote global nuclear disarmament.

18. lt is also lndia's view that the best forums to pursue these measuresare
inter-governmental and this in fact has been agreed by consensus by the

international community since 550D 1 (1978). There is a need ta uphold genuine

multilateralism to increase trust and confidence among aU states, bath nuclear

and non-nudear, and to strengthen dialogue sa as to close the gapsbath on the

constitution and expression of international will regarding the pursuit of

negotiations leading to nuclear disarmament. As such, lndia has supported the
negotiation in the CDof a ComprehensiveNuclear WeaponsConvention, aswell as

hasreiterated its readinessto negotiate a Conventionon the Prohibition of the Use

of Nudear Weapons, most recently in the CD Plenary on 26 January 2016. 6

Evidently, there is no dispute between lndia and the RMIon the urgent necessityof

the pursuit of negotiations leading to global, non-discriminatory and verifiable

nuclear disarmament.

6 Statement by Ambassador DB Venkatesh Varma Permanent Representative of India at the CD
Plenary, 26 January 2016
(http:/ fwww.unog.ch/80256EDDoo6B8954/%28httpAssets%2g/oF86F21DED77FD7EC1257F460
05
84456/ $filej13+India.pdf).

6