Summary of the Judgment of 5 October 2016

INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org

Summary
Not an official document

Summary 2016/3
5 October 2016

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. India)

Summary of the Judgment of 5 October 2016

Procedural background (paras. 1-13)

The Court recalls that, on 24 April 2014, the Republic of the Marshall Islands (hereinafter
the “Marshall Islands” or the “Applicant”) filed an Application instituting proceedings against the
Republic of India (hereinafter “India” or the “Respondent”), in which it claimed that India
breached customary international law obligations concerning negotiations relating to cessation of
the nuclear arms race and to nuclear disarmament. The Marshall Islands seeks to found the Court’s
jurisdiction on the declarations made by the Parties pursuant to Article 36, paragraph 2, of its
Statute.

The Court further recalls that, by a letter dated 6 June 2014, India indicated that it considered
that the Court did not have jurisdiction in the alleged dispute. By an Order of 16 June 2014, the

Court held, pursuant to Article 79, paragraph 2, of its Rules, that, in the circumstances of the case,
it was necessary first of all to resolve the question of its jurisdiction, and that this question should
accordingly be separately determined before any proceedings on the merits; to that end, it decided
that the written pleadings should first be addressed to the said question. The Parties filed such
pleadings within the time-limits set by the Court, and public hearings on the questions of the
jurisdiction of the Court and the admissibility of the Application were held from Monday 7 to
Wednesday 16 March 2016.

I. NTRODUCTION (PARAS . 14-24)

A. Historical Background (paras. 14-20)

The Court provides a brief historical background to the case, in particular in relation to the
nuclear disarmament activities of the United Nations.

B. Proceedings brought before the Court (paras. 21-24)

The Court notes the other proceedings brought by the Marshall Islands at the same time as
the present case. It then outlines India’s objections to jurisdiction and admissibility. It announces - 2 -

that it will first consider the objection that the Marshall Islands has failed to show that there was, at

the time of the filing of the Application, a legal dispute between the Parties.

II. THE OBJECTION BASED ON THE ABSENCE OF A DISPUTE (PARAS . 25-55)

After outlining the Parties’ arguments, the Court recalls the applicable law on this question.
It explains that the existence of a dispute between the Parties is a condition of its jurisdiction. In
order for a dispute to exist, it must be shown that the claim of one party is positively opposed by

the other; the two sides must hold clearly opposite views concerning the question of the
performance or non-performance of certain international obligations. The Court’s determination of
the existence of a dispute is a matter of substance, and not a question of form or procedure. Prior
negotiations are not required where the Court has been seised on the basis of declarations made
pursuant to Article 36, paragraph 2, of its Statute, unless one of the relevant declarations so
provides. Moreover, although a formal diplomatic protest may be an important step to bring a

claim of one party to the attention of the other, such a formal protest is not a necessary condition
for the existence of a dispute. Similarly, notice of an intention to file a case is not required as a
condition for the seisin of the Court.

The Court continues by underlining that whether a dispute exists is a matter for objective
determination by the Court which must turn on an examination of the facts. For that purpose, the
Court takes into account in particular any statements or documents exchanged between the parties,

as well as any exchanges made in multilateral settings. In so doing, it pays special attention to the
author of the statement or document, their intended or actual addressee, and their content. The
conduct of the parties may also be relevant, especially when there have been no diplomatic
exchanges. In particular, the Court has previously held that the existence of a dispute may be
inferred from the failure of a State to respond to a claim in circumstances where a response is
called for. The evidence must show that the parties “hold clearly opposite views” with respect to

the issue brought before the Court. As reflected in previous decisions of the Court in which the
existence of a dispute was under consideration, a dispute exists when it is demonstrated, on the
basis of the evidence, that the respondent was aware, or could not have been unaware, that its views
were “positively opposed” by the applicant.

The Court further explains that, in principle, the date for determining the existence of a
dispute is the date on which the application is submitted to the Court. Conduct subsequent to the

application (or the application itself) may be relevant for various purposes, in particular to confirm
the existence of a dispute, to clarify its subject-matter or to determine whether the dispute has
disappeared as of the time when the Court makes its decision. However, neither the application nor
the parties’ subsequent conduct and statements made during the judicial proceedings can enable the
Court to find that the condition of the existence of a dispute has been fulfilled in the same
proceedings. If the Court had jurisdiction with regard to disputes resulting from exchanges in the

proceedings before it, a respondent would be deprived of the opportunity to react before the
institution of proceedings to the claim made against its own conduct. Furthermore, the rule that the
dispute must in principle exist prior to the filing of the application would be subverted.

* *

The Court then turns to the case at hand, noting at the outset that the Marshall Islands, by
virtue of the suffering which its people endured as a result of it being used as a site for extensive
nuclear testing programs, has special reasons for concern about nuclear disarmament. But that fact
does not remove the need to establish that the conditions for the Court’s jurisdiction are met. - 3 -

While it is a legal matter for the Court to determine whether it has jurisdiction, it remains for the
Applicant to demonstrate the facts underlying its case that a dispute exists.

The Court observes that India relies on the fact that the Marshall Islands did not commence
negotiations or give notice to it of the claim that is the subject of the Application to support its
contention that there is no dispute between the Parties. India refers to Article 43 of the
International Law Commission’s (“ILC”) Articles on State Responsibility, which requires an
injured State to “give notice of its claim” to the allegedly responsible State. Article 48,
paragraph 3, applies that requirement mutatis mutandis to a State other than an injured State which

invokes responsibility. However, the Court notes that the ILC’s commentary specifies that the
Articles “are not concerned with questions of the jurisdiction of international courts and tribunals,
or in general with the conditions for the admissibility of cases brought before such courts or
tribunals”. Moreover, the Court has rejected the view that notice or prior negotiations are required
where it has been seised on the basis of declarations made pursuant to Article 36, paragraph 2, of
the Statute, unless one of those declarations so provides. The Court’s jurisprudence treats the
question of the existence of a dispute as a jurisdictional one that turns on whether there is, in

substance, a dispute, not on what form that dispute takes or whether the respondent has been
notified.

The Court next examines the Marshall Islands’ arguments in support of its contention that it
had a dispute with India.

First, the Court notes that the Marshall Islands refers to two statements made in multilateral
fora before the date of the filing of its Application which, in its view, suffice to establish the

existence of a dispute. The Marshall Islands relies on the 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”. However, the Court
considers that this statement is formulated in hortatory terms and cannot be understood as an
allegation that India (or any other nuclear power) was in breach of any of its legal obligations. It
does not mention the obligation to negotiate, nor does it say that the nuclear-weapon States are

failing to meet their obligations in this regard. It suggests that they are making “efforts” to address
their responsibilities, and calls for an intensification of those efforts, rather than deploring a failure
to act. The Court adds that a statement can give rise to a dispute only if it refers to the
subject-matter of a claim with sufficient clarity to enable the State against which that claim is made
to identify that there is, or may be, a dispute with regard to that subject-matter. The 2013 statement
relied upon by the Marshall Islands does not meet these requirements. The Court observes that the
statement made by the Marshall Islands at the Nayarit conference on 13 February 2014 goes further

than the 2013 statement, in that it contains a sentence asserting that “States possessing nuclear
arsenals are failing to fulfil their legal obligations” under Article VI of the NPT and customary
international law. India was present at the Nayarit conference. However, the subject of the
conference was not specifically the question of negotiations with a view to nuclear disarmament,
but the broader question of the humanitarian impact of nuclear weapons, and while this statement
contains a general criticism of the conduct of all nuclear-weapon States, it does not specify the
conduct of India that gave rise to the alleged breach. For the Court, such a specification would
have been particularly necessary if, as the Marshall Islands contends, the Nayarit statement was

aimed at invoking the international responsibility of the Respondent on the grounds of a course of
conduct which had remained unchanged for many years. Given its very general content and the
context in which it was made, that statement did not call for a specific reaction by India.
Accordingly, no opposition of views can be inferred from the absence of any such reaction. The
Nayarit statement is insufficient to bring into existence, between the Marshall Islands and India, a
specific dispute as to the existence or scope of the asserted customary international law obligations
to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in

all its aspects under strict and effective international control, as well as to cease the nuclear arms
race at an early date, or as to India’s compliance with any such obligations. The Court concludes - 4 -

that, in all the circumstances, on the basis of those statements  whether taken individually or

together  it cannot be said that India was aware, or could not have been unaware, that the
Marshall Islands was making an allegation that India was in breach of its obligations.

Secondly, the Court considers the Marshall Islands’ argument that the very filing of the
Application and statements made in the course of the proceedings by both Parties suffice to
establish the existence of a dispute. The Court deems that the case law invoked by the
Marshall Islands does not support this contention. In the case concerning Certain Property, the

existence of a dispute was clearly referenced by bilateral exchanges between the parties prior to the
date of the application (Certain Property (Liechtenstein v. Germany), Preliminary Objections,
Judgment, I.C.J. Reports 2005, p. 19, para. 25). The reference to subsequent materials in the
Cameroon v. Nigeria case related to the scope of the dispute, not to its existence (Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 317, para. 93). Moreover, while it is true that the
Court did not explicitly reference any evidence before the filing of the application demonstrating

the existence of a dispute in its Judgment in the case concerning the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), in the particular context of that case, which involved an ongoing armed conflict, the
prior conduct of the parties was sufficient to establish the existence of a dispute (Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 614, paras. 27-29). Instead, the issues the Court
focused on in that case were not the date when the dispute arose but the proper subject-matter of
that dispute, whether it fell within the scope of the relevant compromissory clause, and whether it
“persist[ed]” at the date of the Court’s decision. The Court reiterates 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.

Thirdly, the Court assesses the Marshall Islands argument that the conduct of India in
maintaining and upgrading its nuclear arsenal, and in failing to co-operate with certain diplomatic

initiatives, shows the existence of a dispute between the Parties. The Court recalls that the question
whether there is a dispute in a particular contentious case turns on the evidence of opposition of
views. In this regard, the conduct of a respondent can contribute to a finding by the Court that the
views of the parties are in opposition. However, as the Court has previously concluded, in the
present case neither of the statements that were made in a multilateral context by the
Marshall Islands offered any particulars regarding India’s conduct. On the basis of such
statements, it cannot be said that India was aware, or could not have been unaware, that the
Marshall Islands was making an allegation that India was in breach of its obligations. In this

context, the conduct of India does not provide a basis for finding a dispute between the two States
before the Court.

* *

The Court therefore concludes that the first objection made by India must be upheld. It

follows that the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute.
Consequently, it is not necessary for the Court to deal with the other objections raised by India.
The questions of the existence of and extent of customary international law obligations in the field
of nuclear disarmament, and India’s compliance with such obligations, pertain to the merits. But
the Court has found that no dispute existed between the Parties prior to the filing of the
Application, and consequently it lacks jurisdiction to consider these questions. - 5 -

O PERATIVE PART (PARA. 56)

THE COURT ,

(1) By nine votes to seven,

Upholds the objection to jurisdiction raised by India, based on the absence of a dispute
between the Parties;

IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Greenwood, Xue,

Donoghue, Gaja, Bhandari, Gevorgian;

AGAINST: Judges Tomka, Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford;
Judge ad hoc Bedjaoui;

(2) By ten votes to six,

Finds that it cannot proceed to the merits of the case.

IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka,

Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;

AGAINST: Judges Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford;
Judge ad hoc Bedjaoui.

President BRAHAM and Vice-President USUF append declarations to the Judgment of the
Court; Judges O WADA and TOMKA append separate opinions to the Judgment of the Court;
Judges BENNOUNA and C ANÇADO TRINDADE append dissenting opinions to the Judgment of the
Court; Judges XUE , DONOGHUE and G AJA append declarations to the Judgment of the Court;
Judges SEBUTINDE and B HANDARI append separate opinions to the Judgment of the Court;

Judges ROBINSON and C RAWFORD append dissenting opinions to the Judgment of the Court;
Judge ad hoc EDJAOUI appends a dissenting opinion to the Judgment of the Court.

___________ Annex to Summary 2016/3

Declaration of President Abraham

In his declaration, President Abraham explains that he voted in favour of the Judgment
because he considers the Court’s decision to be fully consistent with its recent jurisprudence
relating to the requirement for a “dispute” to exist between the parties, as established by a series of
Judgments handed down over the past five years, in particular the Judgment of 1 April 2011 in the
case concerning Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), the Judgment of 20 July 2012 in the case
concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) and
the Judgment of 17 March 2016 in the case concerning Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). It is apparent from these
Judgments, he explains, that, in order to determine whether the condition relating to the existence
of a dispute has been met, the date to be referred to is the date of the institution of the proceedings,

and that the Court can only find that it has jurisdiction to entertain a case where each party was 
or must have been  aware on that date that the views of the other party were opposed to its own.

President Abraham explains that, even though he expressed reservations at the time the
Court established this jurisprudence, he nevertheless considers himself to be bound by such
jurisprudence and therefore voted in conformity with it.

Declaration of Vice-President Yusuf

1. Whilst agreeing with the conclusion of the Court in Marshall Islands v. India,
Vice-President Yusuf sets forth in his declaration his disagreement with two aspects of the
Judgment. First, he rejects the criterion of “awareness” as the condition for the existence of a
dispute. Second, he criticizes the one-size-fits-all approach taken to the three distinct cases argued
before the Court by the Parties (Marshall Islands v. India, Marshall Islands v. United Kingdom,

Marshall Islands v. Pakistan).

2. As the Judgment recognizes, “[a] dispute is a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons” (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J. Series A, No. 2, p. 11). It is for the Court to determine the existence
of a dispute objectively (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Advisory Opinion, I.C.J. Reports 1950, p. 74), which is a matter “of substance, not of form”

(Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, I.C.J. Reports 2011 (I),
para. 30).

3. In the present Judgment, the Court states that “a dispute exists when it is demonstrated, on
the basis of the evidence, that the respondent was aware, or could not have been unaware, that its
views were ‘positively opposed’ by the applicant” (paragraph 38). The two Judgments that it

invokes as authority for this statement  namely the Judgments on preliminary objections in the
cases of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), and the Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation)  do not provide support
for the “awareness” criterion expounded by the Court. In both those cases, the Court simply noted
that as a matter of fact the respondent State was aware of the position of the applicant; it did not - 2 -

identify “awareness” as a requirement for the existence of a dispute at any point nor was this
implicit in the Court’s reasoning.

4. Vice-President Yusuf notes that the introduction of the “awareness” criterion conflicts
with the Court’s established jurisprudence that the existence of a dispute is for objective
determination. Moreover, such an approach also undermines judicial economy and the sound
administration of justice by inviting submissions of second applications on the same dispute.

5. The Court could have come to the same conclusions reached in the present Judgment by

applying the criteria traditionally used by it in the determination of the existence of a dispute. On
the basis of the evidence placed before it in this case, the Court could have concluded that the
Parties did not hold positively opposed views prior to the submission of the Application by the
Republic of the Marshall Islands. There was no need to introduce a new criterion of “awareness”
in order to justify those conclusions.

6. The conclusions of the Judgment on the absence of a dispute between the Republic of the
Marshall Islands and India should have been based on an analysis of the facts presented to the
Court regarding the positions of the Parties on the subject-matter of the alleged dispute, referring in
particular to the articulation of those positions in multilateral settings.

7. In particular, reference should have been made to: (a) the resolutions adopted by the
United Nations General Assembly calling upon States to pursue multilateral negotiations on

nuclear disarmament and the voting patterns of the Republic of the Marshall Islands and India on
such resolutions; and (b) statements made by the Parties on the subject-matter of the alleged
dispute in multilateral forums.

8. As regards the United Nations General Assembly resolutions, India has consistently voted
in favour of the United Nations General Assembly resolutions that call upon States to negotiate a
comprehensive nuclear disarmament treaty. There is no doubt that such a voting record has an

evidentiary value with regard to the course of conduct of India on the matter at issue in this case:
the immediate commencement of negotiations and conclusion of a general convention on nuclear
disarmament.

9. Furthermore, India, as a member of the Non-Aligned Movement (NAM), has consistently
subscribed to statements made by this group of States that express willingness to engage in
multilateral negotiations leading to nuclear disarmament.

10. In addition to its voting record on United Nations General Assembly and Non-Aligned
Movement resolutions, India’s consistent support for the commencement and conclusion of
negotiations leading to nuclear disarmament is substantiated by the statements of its Head of State
and Ministers in multilateral forums or official documents.

11. Thus, Vice-President Yusuf considers that there is no evidence in the record that

positively opposed views were held by India and the Republic of the Marshall Islands, prior to the
submission of the Application of the Republic of the Marshall Islands, on the obligation to pursue
and conclude negotiations on nuclear disarmament, assuming that such an obligation exists in
customary international law. - 3 -

12. The record shows instead that both States have been advocating in various multilateral
forums, including at the Nayarit conference, but most of all at the United Nations

General Assembly (at least since 2013 in the case of the Republic of the Marshall Islands), the
necessity for all States, including nuclear-weapons States, to pursue in good faith and to conclude
negotiations on nuclear disarmament. Rather than positive opposition or conflict of legal views on
the subject-matter of the alleged dispute, the evidence appears to point towards a convergence of
views between the Parties on the negotiation and conclusion of a comprehensive convention on
nuclear disarmament.

Separate opinion of Judge Owada

Judge Owada recognizes that the history of the Marshall Islands (hereinafter the “RMI”) has
created reasons for special concern about nuclear disarmament, and particularly the obligation of
the nuclear-weapon States under Article VI of the Treaty on the Non-Proliferation of Nuclear
Weapons (hereinafter the “NPT”). Yet the evidence must demonstrate the existence of a concrete
legal dispute in order for this Court to have jurisdiction. For this reason, Judge Owada concurs

with the reasoning of the Court, but has appended a separate opinion to clarify the reasoning of the
Court with respect to three issues in this legal, though politically charged, context.

The first point relates to the legal standard applied by the Court in determining whether or
not a dispute existed at the time of the filing of the Application by the RMI. Judge Owada recalls
that, for the purpose of establishing the existence of a dispute, it must be shown that the claim of
one party is positively opposed by the other. It is important to recognize that this requirement is
not a mere formality, but a matter of cardinal significance as an indispensable precondition for the

seisin of the Court by the Applicant. For this reason, the absence of an alleged dispute at the time
of the filing of an application is not a procedural technicality that can be cured by a subsequent act,
as was the case in the Mavrommatis Palestine Concessions case. In this context, a legal dispute
must be distinguished from a mere divergence of positions. The jurisprudence of the Court reflects
this principle, though it has examined this issue in diverse factual and legal circumstances and in
doing so has assessed a variety of different factors. It might be tempting to conclude that the
Court’s reliance on such factors evidences a certain threshold for establishing the existence of a

dispute, but in Judge Owada’s view the jurisprudence of the Court is not quite so linear. These
Judgments instead represent case-specific instances in which the evidence was adjudged to be
sufficient or insufficient. This point must be borne in mind when appreciating the true meaning of
the respondent’s awareness, as introduced by the present Judgment. Although the Judgment might
appear to introduce this element of “awareness” out of the blue, the reality is that the element of
awareness is the common denominator running through the case law. The awareness of the
respondent demonstrates the transformation of a mere disagreement into a true legal dispute and is

thus an essential minimum common to all cases.

The second point relates to the time at which a dispute must be shown to exist. The RMI
argued that the Judgments of the Court in several previous cases support its contention that
statements made during the proceedings may serve as evidence of the existence of a dispute. The
Court correctly explained the meaning of these precedents in the Judgment, but Judge Owada
wished to provide a more detailed explanation of the correct interpretation of the case concerning

the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro). The unique circumstances and mixed questions of law
and fact tied to the merits of that case made the question to be decided by the Court very different
from the question at issue in the present proceedings and, as such, the Court’s reliance on
statements made during the proceedings in that case should not be taken as signalling a departure
from the Court’s consistent jurisprudence on the subject. - 4 -

Finally, Judge Owada wishes to elaborate upon the treatment of the evidence by the Court in
the present Judgment. Some may feel that the Court adopted a piecemeal approach by rejecting

each category of evidence individually, whereas the RMI argued that the evidence must be taken as
a whole. It is Judge Owada’s view that the Court examined all of the evidence and correctly
determined that this evidence — even when taken as a whole — was not sufficient to demonstrate
the existence of a dispute.

Having stated this, Judge Owada adds that a new legal situation might have emerged as a
result of the present proceedings before the Court. To the extent that the present Judgment reflects

the position of the Court with respect to the legal situation that existed at the time of the filing of
the present Application, a new application might not be subject to the same preliminary objection
to jurisdiction. The viability of such a new application would remain an open question and its fate
would depend upon the Court’s examination of all of the objections to jurisdiction and
admissibility.

Separate opinion of Judge Tomka

Judge Tomka is not convinced by the approach taken by the Court in relation to the existence
of a dispute in this case, and does not consider that it is warranted by the Court’s previous
jurisprudence. He is therefore regrettably unable to support the Court’s conclusions in this regard.

Judge Tomka begins by outlining the claims made by the Marshall Islands in this case,
relating to India’s alleged breach of obligations relating to nuclear disarmament said to exist under
customary international law. He observes that India has denied those claims.

He recalls that the Marshall Islands has invoked the Article 36 (2) declarations of the Parties
as the basis for jurisdiction in this case. Judge Tomka observes that, when analysing issues of
jurisdiction, caution should be taken in relying on different pronouncements of the Court which
may have been made in the context of particular Article 36 (2) declarations or compromissory
clauses which set preconditions for the seising of the Court. He notes that the Court in this
Judgment reiterates its previous view that there is no requirement that a State negotiate before
seising the Court or give notice of its claim before instituting proceedings, unless there is such a

condition in the relevant basis of jurisdiction.

Judge Tomka observes that, although the Court has often stated that the existence of a
dispute is a condition for its jurisdiction, it is, in his view, more properly characterized as a
condition for the exercise of the Court’s jurisdiction. He observes in this respect that, in relation to
States which have made declarations under Article 36 (2) of the Statute, the Court’s jurisdiction is
established from the moment the declaration is deposited with the Secretary-General of the

United Nations. Thus, in Judge Tomka’s view, it is not the emergence of a dispute which
establishes the Court’s jurisdiction or perfects it. Rather, the emergence of a dispute is a necessary
condition for the Court to exercise its jurisdiction. The disappearance of the dispute during the
proceedings does not deprive the Court of its jurisdiction, but the Court in such situation will not
give any judgment on the merits, as there is nothing upon which to decide.

Judge Tomka notes the function of the Court, as the principal judicial organ of the

United Nations, “is to decide in accordance with international law such disputes as are submitted to
it” (Article 38, paragraph 1, of the Statute). He observes that, in order to discharge that function,
the dispute must still exist when the Court decides on its merits. However, even though the
formulation of Article 38, paragraph 1, implies that the dispute will already exist when proceedings
before the Court are instituted, the phrase about the Court’s function was not intended to constitute
a condition for the Court’s jurisdiction and should not be determinative in respect thereof. - 5 -

Judge Tomka highlights that the Court’s jurisprudence requires that a dispute exist
in principle at the time of the application. He considers that, even though the Court repeats this

general rule in this Judgment, it has here adopted rather a very strict requirement that the dispute
must have existed prior to the filing of the Marshall Islands’ Application.

He outlines that, in some cases, circumstances will dictate that the dispute must indeed exist
as at the date of the application. This may be because of the subsequent expiry of the acceptance of
the Court’s jurisdiction by one of the States, as in the recent case concerning Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary

Objections, Judgment of 17 March 2016. It may also be because, as in Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 70, the
compromissory clause at issue requires prior negotiations before the filing of the Application, from
which it logically follows that a dispute relating to the subject-matter of the relevant Convention
should have arisen prior to instituting the proceedings. Judge Tomka cannot agree with those who
consider that the Georgia v. Russia case indicates the beginning of a more formalistic approach to

the existence of a dispute in the Court’s jurisprudence.

Judge Tomka observes that where there are no circumstances requiring that the dispute exist
by a particular date, the Court has been flexible in not limiting itself only to the period prior to the
filing of the application in order to ascertain whether a dispute existed between the parties before it.
He highlights in this respect the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595.

Moreover, Judge Tomka observes that the Court, and its predecessor, have always shown a
reasonable amount of flexibility, not being overly formalistic, when it comes to the timing at which
jurisdictional requirements are to be met. He discusses, inter alia, Certain German Interests in
Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595,
and Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 412. The Court
observed, in the latter case, inter alia, that

“What matters is that, at the latest by the date when the Court decides on its
jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings
in which the initially unmet condition would be fulfilled. In such a situation, it is not

in the interests of the sound administration of justice to compel the applicant to begin
the proceedings anew — or to initiate fresh proceedings — and it is preferable, except
in special circumstances, to conclude that the condition has, from that point on, been
fulfilled” (ibid., p. 441, para. 85).

Judge Tomka considers that there is no compelling reason why this principle cannot be applied to
the existence of a dispute. He cannot agree with the view that the Judgment in Questions relating

to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012 (II), p. 422, represents a departure in the Court’s jurisprudence in this regard.

While Judge Tomka accepts that the Marshall Islands had, for some time, not taken a
particularly active position on nuclear disarmament in multilateral fora, he observes that it has,
since at least 2013, voiced its dissatisfaction about the compliance, or rather lack thereof, with
obligations relating to nuclear disarmament alleged to exist under, inter alia, customary
international law by nuclear powers, among them India. He does not consider that a State is

required, under international law, to give notice to another State of its intention to institute - 6 -

proceedings before the Court, but takes the view that a State can formulate its claim in the
application seising the Court. He observes that to require a State to give prior notice may entail, in

the present optional clause system of the Court’s compulsory jurisdiction, a risk that the Court will
be deprived of its jurisdiction prior to receiving an application.

Judge Tomka concludes on this point that the proceedings before the Court in this case have
clarified that there is a dispute between the Marshall Islands and India about the latter’s
performance of obligations relating to nuclear disarmament and alleged to exist under customary
international law. In his view, the conclusion that the Court has no jurisdiction in the absence of a

dispute is not justified in the case at hand.

Nonetheless, Judge Tomka takes the view that the nature of any obligations that may exist in
the field of nuclear disarmament renders the Marshall Islands’ Application inadmissible. He
discusses Article VI of the NPT, which is in similar terms to the obligations the Marshall Islands
alleges to exist under customary international law in this case, and the way the obligation
thereunder was characterized by the Court in Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 226. He observes, with reference to the literature on

this point, that disarmament requires co-operation and performance by all States. He outlines that
disarmament can realistically be achieved only through balancing the security interests of the States
concerned, in particular all nuclear powers and other countries with significant military capabilities.
Judge Tomka considers that enquiry into the compliance by one nuclear power with its obligations
relating to nuclear disarmament, including any obligation to negotiate in good faith, invites
consideration of the position taken by all other nuclear powers in relation to the same obligations
which are or may be binding on them. He observes that it is only with an understanding of the

positions taken by other States that the Court can stand on safe ground in considering the conduct
of any one State alone, which necessarily is influenced by the positions of those other States, and
whether that one State alone is open to achieving the goal of nuclear disarmament through
bona fide negotiations. He emphasizes that this is not a question of ruling on the responsibility of
those other States as a precondition for ruling on the responsibility of the Respondent such that the
Monetary Gold principle would apply. It is, in his view, rather a question of whether it is possible
for the Court, in this context, to undertake consideration of a single State’s conduct without

considering and understanding the positions taken by the other States with which that State (the
Respondent in the case at hand) would need to have negotiated, and with which it would need to
agree on the steps and measures to be taken by all concerned in order to achieve the overall goal of
nuclear disarmament.

Judge Tomka concludes that the issues raised in the present proceedings are not of a bilateral
nature between the Marshall Islands and India. He is convinced that the Court cannot meaningfully

engage in a consideration of India’s conduct when other States are not present before the Court to
explain their positions and actions. This case illustrates, in his view, the limits of the Court’s
function, focused as it is on bilateral disputes. Had the Court been endowed with universal
compulsory jurisdiction, all Members of the United Nations would have been subject to its
jurisdiction. There would not have then existed obstacles to the Court’s exercising its jurisdiction
fully and thus contributing to the achievement of the purposes and goals of that Organization.

To his sincere and profound regret, Judge Tomka concludes that the absence of other nuclear

powers in the proceedings prevents the Court from considering the Marshall Islands’ claims in their
proper multilateral context. Therefore, he considers that the Application is inadmissible and that
the Court cannot proceed to the merits of the case. - 7 -

Dissenting opinion of Judge Bennouna

In the three cases brought by the Marshall Islands concerning the obligation to negotiate
pursuant to Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons and under
customary international law, the Court has declared that it lacks jurisdiction on the grounds of the
non-existence of a dispute between the Parties. In doing so, the Court has preferred an exercise in
pure formalism to the realism and flexibility expressed in its previous and consistent jurisprudence.
Hence, whereas the existence of a dispute had until now been determined objectively, the Court has
introduced a new subjective element in its three Judgments. By stopping the time of law and

analysis at the date of submission of the Marshall Islands’ Application and requiring that the
Respondent must have been aware or could not have been “unaware that its views were ‘positively
opposed’ by the applicant”, the Court has shown excessive formalism at the expense of a flexible
approach that favours the sound administration of justice.

Dissenting opinion of Judge Cançado Trindade

1. In his Dissenting Opinion, composed of 21 parts, in the present case of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands versus India), Judge Cançado Trindade presents the foundations of
his personal dissenting position, pertaining to the Court’s decision, encompassing the approach
pursued, the whole reasoning as well as the resolutory points. In doing so,
Judge Cançado Trindade distances himself as much as he can from the position of the Court’s
majority.

2. In analysing, first of all, the issue of the existence of a dispute before the Hague Court,
Judge Cançado Trindade examines in detail the jurisprudence constante of the Hague Court (PCIJ
and ICJ), whereby a dispute exists when there is “a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons” (not necessarily stated expressis
verbis). Whether there exists a dispute is a matter for “objective determination” by the Court, and
the mere denial of the existence of a dispute does not prove its non-existence.

3. Such has been the position of the Hague Court — both the PCIJ, as from the case of
Mavrommatis Palestine Concessions (Judgment of 30.08.1924), and the ICJ, as from the Advisory
Opinion (of 30.03.1950) on the Interpretation of Peace Treaties. Even along the last decade — he
recalls — the Hague Court has deemed it fit to insist on its own faculty to proceed to the “objective
determination” of the dispute, consistent with its jurisprudence constante, examined in detail in
Judge Cançado Trindade’s Dissenting Opinion (part II).

4. It was only very recently, in a passage of its Judgment on Preliminary Objections
(of 01.04.2011) in the case of the Application of the International Convention on the Elimination of
All Forms of Racial Discrimination - CERD, that the ICJ at a certain moment has decided to apply
to the facts of the case a higher threshold for the determination of the existence of a dispute, by
proceeding to ascertain whether the applicant State had given the respondent State prior notice of
its claim and whether the respondent State had opposed it. Judge Cançado Trindade warns that

such new requirement “is not consistent with the PCIJ’s and the ICJ’s jurisprudence constante on
the determination of the existence of a dispute” (para. 9).

5. Now, in the present cases of Obligations Concerning Negotiations Relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament, the three respondent States (India,
United Kingdom and Pakistan), seek to rely on a requirement of prior notification of the claim, or - 8 -

the test of prior awareness of the applicant State’s claim, for a dispute to exist under the ICJ’s
Statute or general international law. Yet — Judge Cançado Trindade further warns —

“nowhere can such a requirement be found in the Court’s jurisprudence constante as to
the existence of a dispute: quite on the contrary, the ICJ has made clear that the
position or the attitude of a party can be established by inference [case of Land and
Maritime Boundary between Cameroon and Nigeria, Judgment on Preliminary
Objections, of 11.06.1998]. Pursuant to the Court’s approach, it is not necessary for
the respondent to oppose previously the claim by an express statement, or to express

acknowledgment of the existence of a dispute” (para. 10).

6. Judge Cançado Trindade next recalls that, in his earlier Dissenting Opinion (para. 161) in
the Court’s 2011 Judgment in the case of the Application of the CERD Convention, he criticized
the Court’s “formalistic reasoning” in determining the existence of a dispute, introducing a higher
threshold that went beyond the jurisprudence constante of the PCIJ and the ICJ itself
(paras. 11-12). There is no general requirement of prior notice of the applicant State’s intention to

initiate proceedings before the ICJ. He adds that “the purpose of the need of determination of the
existence of a dispute (and its object) before the Court is to enable this latter to exercise jurisdiction
properly: it is not intended to protect the respondent State, but rather and more precisely to
safeguard the proper exercise of the Court’s judicial function” (para. 13).

7. Likewise, there is no such requirement of prior “exhaustion” of diplomatic negotiations
(para. 14) before lodging a case with, and instituting proceedings before, the Court (case of Land

and Maritime Boundary between Cameroon and Nigeria, Judgment on Preliminary Objections
of 11.06.1998). In the present case opposing the Marshall Islands to India, there were two
sustained and distinct courses of conduct of the two contending parties, evidencing their distinct
legal positions, which suffice for the determination of the existence of a dispute. The
subject-matter of the dispute between the parties is whether India has breached its obligation under
customary international law to pursue in good faith and to conclude negotiations leading to nuclear
disarmament in all its aspects under effective international control (para. 16).

8. In the present cases of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus India/United Kingdom/
Pakistan), the Court’s majority has unduly heightened the threshold for establishing the existence
of a dispute; it has laid down the “awareness” requirement, seemingly “undermining its own
ability to infer the existence of a dispute from the conflicting courses of conduct of the contending
parties” (para. 19).

9. In Judge Cançado Trindade’s understanding, the view taken by the Court’s majority in the
present case “contradicts the Hague Court’s (PCIJ and ICJ) own earlier case-law”, in which it has
taken a much less formalistic approach to the establishment of the existence of a dispute” (as to the
PCIJ, cf., inter alia, case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924; case of
Certain German Interests in Polish Upper Silesia, Judgment (Jurisdiction) of 25.08.1925; case of
Interpretation of Judgments ns. 7 and 8 - Chorzów Factory, Judgment of 16.12.1927; and, as to the

ICJ, cf., inter alia, case of East Timor, Judgment of 30.06.1995; case of the Application of the
Convention against Genocide, Preliminary Objections, Judgment of 11.07.1996; case of Certain
Property, Preliminary Objections, Judgment of 10.02.2005) (para. 21).

10. In the cases of East Timor (1995) of the Application of the Convention against
Genocide (1996) and of Certain Property (2005), the ICJ has considered that conduct post-dating - 9 -

the critical date (i.e., the date of the filing of the Application) supports a finding of the existence of
a dispute between the parties. In the light of this approach taken by the ICJ itself in its earlier

case-law, it is clear that a dispute exists in the cas d’espèce (paras. 23-24).

11. Moreover, the Court’s majority makes tabula rasa of the requirement that “in principle”
the date for determining the existence of the dispute is the date of filing of the application (case of
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, Preliminary
Objections, Judgment of 17.03.2016; as already seen, in its case-law the ICJ has taken into account
conduct post-dating that critical date (para. 29).

12. In the present case — Judge Cançado Trindade proceeds — the Court’s majority borrows
the obiter dicta it made in the case of the Application of the CERD Convention (2011) — “unduly
elevating the threshold for the determination of the existence of a dispute — in respect of a
compromissory clause under that Convention (wrongly interpreted anyway, making abstraction of
the object and purpose of the CERD Convention). In the present case, opposing the
Marshall Islands to India, worse still, the Court’s majority takes that higher standard out of context,

and applies it herein, in a case lodged with the Court on the basis of an optional clause declaration,
and concerning an obligation under customary international law” (para. 30).

13. This higher threshold is, “besides formalistic, artificial”, and it does not follow from the
definition of a dispute in the Court’s jurisprudence constante (para. 31). In applying the criterion of
“awareness”, the Court’s majority formalistically requires a specific reaction of the respondent
State to the claim made by the applicant State, “even in a situation where, as in the cas d’espèce,

there are two consistent and distinct courses of conduct on the part of the contending parties”
(para. 31). Judge Cançado Trindade concludes, on this particular issue, that the formalistic raising,
by the Court’s majority, of the higher threshold for the determination of the existence of a dispute,

“unduly creates a difficulty for the very access to justice (by applicants) at
international level, in a case on a matter of concern to the whole of humankind. This
is most regrettable” (para. 32).

14. In sequence, he then turns attention to the distinct series of U.N. General Assembly
resolutions on nuclear weapons and opinio juris (part III), namely: a) U.N. General Assembly
resolutions on Nuclear Weapons (1961-1981); b) UN General Assembly Resolutions on Freeze of
Nuclear Weapons (1982-1992); c) U.N. General Assembly Resolutions Condemning Nuclear
Weapons (1982-2015); d) U.N. General Assembly Resolutions Following up the ICJ’s
1996 Advisory Opinion (1996-2015). He recalls, that, first, in the course of the proceedings in the

present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament, the contending parties addressed U.N. General Assembly
resolutions on the matter of nuclear disarmament (para. 33).

15. As to the first series of U.N. General Assembly Resolutions on Nuclear Weapons
(1961-1981), the ground-breaking General Assembly resolution 1653 (XVI), of 24.11.1961,
advanced its célèbre “Declaration on the Prohibition of the Use of Nuclear and Thermonuclear

Weapons”. There followed three Disarmament Decades (para. 34). In this first period under
review (1961-1981), the U.N. General Assembly continuously paid special attention to
disarmament issues and to nuclear disarmament in particular (para. 35). In 1978 and 1982, the
U.N. General Assembly held two Special Sessions on Nuclear Disarmament (respectively, the 10th
and 12th sessions), where the question of nuclear disarmament featured prominently amongst the - 10 -

themes discussed; it was stressed that the most immediate goal of disarmament is the elimination
of the danger of a nuclear war (para. 36).

16. Judge Cançado Trindade recalls that the General Assembly repeatedly drew attention to
the dangers of the nuclear arms race for humankind and the survival of civilization and expressed
apprehension concerning the harmful consequences of nuclear testing for the acceleration of such
arms race. Thus, the General Assembly reiterated its condemnation of all nuclear weapon tests, in
whatever environment they may be conducted, and it urged NWS to suspend nuclear weapon tests
in all environments (para. 37).

17. He further recalls that, in that period, the General Assembly also emphasized that NWS
bear a special responsibility for fulfilling the goal of achieving nuclear disarmament (para. 38). At
the 84th plenary meeting — he adds — following the 10th Special Session on Disarmament, the
General Assembly declared that the use of nuclear weapons is a “violation of the Charter of the
United Nations” and “a crime against humanity”, and that the use of nuclear weapons should be
prohibited, pending nuclear disarmament (para. 39).

18. As to the second series of U.N. General Assembly Resolutions on Freeze of Nuclear
Weapons (1982-1992), every year in that period of 1982-1992 (following up on the 10th and 12th
Special Sessions on Nuclear Disarmament, held in 1978 and 1982, respectively), the
General Assembly adopted resolutions calling for a nuclear-weapons freeze. Such resolutions on
freeze of nuclear weapons note that existing arsenals of nuclear weapons are more than sufficient to

destroy all life on earth. They express the conviction that lasting world peace can be based only
upon the achievement of general and complete disarmament, under effective international control.
In this connection, the aforementioned General Assembly resolutions note that the highest priority
objectives in the field of disarmament have to be nuclear disarmament and the elimination of all
weapons of mass destruction (para. 41).

19. They at last call upon NWS to agree to reach “a freeze on nuclear weapons”, which

would, inter alia, provide for “a simultaneous total stoppage of any further production of
fissionable material for weapons purposes”. Such nuclear-weapons freeze was not seen as an end
in itself but as the most effective first step towards the reduction of nuclear arsenals, a
comprehensive test ban, the cessation of the manufacture and deployment of nuclear weapons, and
the cessation of the production of fissionable material for weapons purposes (para. 42).

20. After recalling the acknowledgment of the authority and legal value of

General Assembly resolutions made in the course of the pleadings of late 1995 in the advisory
proceedings before the ICJ (paras. 43-45), Judge Cançado Trindade points out that those
resolutions continue to grow in number ever since and until today, “clearly forming”, in his
perception, “an opinio juris communis as to nuclear disarmament” (para. 46).

21. He then turns to the longstanding series of General Assembly resolutions condemning
nuclear weapons (1982-2015), wherein the General Assembly moved on straightforwardly to the

condemnation of nuclear weapons warning against their threat to the survival of humankind
(para. 48). Those General Assembly resolutions next significantly reaffirm, in their preambular
paragraphs, year after year, that “the use of nuclear weapons would be a violation of the Charter of
the United Nations and a crime against humanity” (para. 49). - 11 -

22. Last but not least, Judge Cançado Trindade surveys the series of U.N. General Assembly
resolutions following up the ICJ’s 1996 Advisory Opinion (1996-2015), which begin by expressing

the General Assembly’s belief that “the continuing existence of nuclear weapons poses a threat to
humanity” and that “their use would have catastrophic consequences for all life on earth”, and,
further, that “the only defence against a nuclear catastrophe is the total elimination of nuclear
weapons and the certainty that they will never be produced again” (2nd preambular paragraph).
The General Assembly resolutions reiteratedly reaffirm “the commitment of the international
community to the realization of the goal of a nuclear-weapon-free world through the total
elimination of nuclear weapons” (para. 54).

23. Those General Assembly significantly call upon all States to fulfil promptly the
obligation leading to an early conclusion of a Convention prohibiting the development, production,
testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their
elimination (para. 55). The aforementioned series of General Assembly resolutions further
recognize, in recent years, “with satisfaction”, in a preambular paragraph, that the Antarctic Treaty,
the Treaties of Tlatelolco, Rarotonga, Bangkok and Pelindaba, and the Treaty on a

Nuclear-Weapon-Free Zone in Central Asia, as well as Mongolia’s nuclear-weapon-free status, are
“gradually freeing the entire southern hemisphere and adjacent areas covered by those treaties from
nuclear weapons” (para. 56).

24. More recent resolutions (from 2013 onwards) are significantly further expanded. They
call upon all NWS to undertake concrete disarmament efforts, stressing that all States need to make
special efforts to achieve and maintain a world without nuclear weapons. In their operative part,

they underline the ICJ’s unanimous conclusion, in its 1996 Advisory Opinion on the Threat or Use
of Nuclear Weapons, that “there exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control” (para. 57).

25. Those of General Assembly follow-up resolutions contain paragraphs referring to the
obligation to pursue and conclude, in good faith, negotiations leading to nuclear disarmament,

without any reference to the NPT or to States Parties to it; they rather refer to that obligation as a
general one, not grounded on any treaty provision. All States, and not only States Parties to the
NPT, are called upon to fulfil promptly that obligation, incumbent upon all States, to report (to the
Secretary-General) on their compliance with the resolutions at issue. In sum, “references to all
States are deliberate, and in the absence of any references to a treaty or other specifically-imposed
international obligation, this thus points towards a customary law obligation to negotiate and
achieve nuclear disarmament” (para. 58).

26. Like the U.N. General Assembly, the U.N. Security Council has also often dwelt upon
the matter at issue (part IV). For example, in two of its resolutions (984/1995, of 11.04.1995;
and 1887/2009 of 24.09.2009), the U.N. Security Council refers, in particular, to the obligation to
pursue negotiations in good faith in relation to nuclear disarmament (para. 63). The
Security Council also makes a general call, upon all U.N. member States, whether or not Parties to
the NPT (para. 64). In Judge Cançado Trindade’s perception,

“the aforementioned resolutions of the Security Council, like those of the
General Assembly (cf. supra), addressing all U.N. member States, provide significant
elements of the emergence of an opinio juris, in support of the gradual formation of an
obligation of customary international law, corresponding to the conventional
obligation under Article VI of the NPT. In particular, the fact that the
Security Council calls upon all States, and not only States Parties to the NPT, to - 12 -

pursue negotiations towards nuclear disarmament in good faith (or to join the NPT
State Parties in this endeavour) is significant. It is an indication that the obligation is

incumbent on all U.N. member States, irrespectively of their being or not Parties to the
NPT” (para. 65).

27. The surveyed U.N. resolutions (of the General Assembly and the Security Council) — he
adds — portray the United Nations’ longstanding saga in the condemnation of nuclear weapons
(part V), going back to its birth and earlier years (paras. 66-67). In 1956, the International Atomic
Energy Agency (IAEA) was established. And half a decade later, in 1961, the General Assembly

adopted a ground-breaking and historical resolution 1653 (XVI), of 24.11.1961, titled “Declaration
on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons”, which “remains
contemporary today, and, 55 years later, continues to require close attention” (para. 68).

28. Over half a century later, that lucid and poignant declaration appears endowed with
permanent topicality, as the whole international community remains still awaiting for the
conclusion of the propounded general Convention on the prohibition of nuclear and thermo-nuclear

weapons: nuclear disarmament remains still a goal to be achieved by the United Nations today, as
it was in 1961. The Comprehensive Nuclear-Test-Ban Treaty (CTBT), adopted on 24.09.1996, has
not yet entered into force, although 164 States have ratified it to date (para. 69). Since the adoption
of the CTBT in 1996, the Conference on Disarmament has been largely deadlocked, in the face of
the invocation of divergent “security interests” (para. 75).

29. After all, in historical perspective, some advances have been attained in the last decades
in respect of other weapons of mass destruction — as illustrated by the adoption of the Convention
on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on their Destruction (on 10.04.1972), as well as the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction (on 13.01.1993); distinctly from the CTBT, these two Conventions have already
entered into force (on 26.03.1975, and on 29.04.1997, respectively). Judge Cançado Trindade
concludes, in this respect, that

“If we look at conventional international law only, weapons of mass destruction
(poisonous gases, biological and chemical weapons) have been outlawed; yet, nuclear
weapons, far more destructive, have not been banned yet. This juridical absurdity
nourishes the positivist myopia, or blindness, in inferring therefrom that there is no
customary international obligation of nuclear disarmament. Positivists only have eyes
for treaty law, for individual State consent, revolving in vicious circles, unable to see

the pressing needs and aspirations of the international community as a whole, and to
grasp the universality of contemporary international law — as envisaged by its
‘founding fathers’, already in the XVIth-XVIIth centuries — with its underlying
fundamental principles (…).

The truth is that, in our times, the obligation of nuclear disarmament has
emerged and crystallized, in both conventional and customary international law, and

the United Nations has been giving a most valuable contribution to this along the
decades” (paras. 77-78).

30. In their arguments before the Court in the present case, the contending parties have
presented their distinct arguments on the issue of U.N. resolutions on nuclear disarmament and the
emergence of opinio juris (part VI). Judge Cançado Trindade is of the view that, despite their - 13 -

distinct patterns of voting, the U.N. General Assembly resolutions reviewed in the present
Dissenting Opinion, taken altogether,

“are not at all deprived of their contribution to the conformation of opinio juris as to
the formation of a customary international law obligation of nuclear denuclearization.
After all, they are resolutions of the U.N. General Assembly itself (and not only of the
large majority of U.N. member States which voted in their favour); they are
resolutions of the United Nations Organization itself, addressing a matter of common
concern of humankind as a whole” (para. 85).

31. The contending parties had the opportunity to explain further their respective positions in
the cas d’espèce, in their written responses to the questions put to them by
Judge Cançado Trindade, in the public sitting of the Court of 16.03.2016 on whether the
aforementioned U.N. General Assembly resolutions are constitutive of an expression of opinio
juris, and, if so, what 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 (paras. 86-92).

32. The presence of evil has marked human existence along the centuries (part VIII). Ever
since the eruption of the nuclear age in August 1945, some of the world’s great thinkers have been
inquiring whether humankind has a future (paras. 93-101), and have been drawing attention to the
imperative of respect for life and the relevance of humanist values (paras. 102-114). Also in
international legal doctrine there have been those who have been stressing the needed prevalence of

human conscience, the universal juridical conscience, over State voluntarism (paras. 115-119).

33. This is the position upheld also by Judge Cançado Trindade, to whom “it is the universal
juridical conscience that is the ultimate material source of international law. (…) one cannot face
the new challenges confronting the whole international community keeping in mind only State
susceptibilities; such is the case with the obligation to render the world free of nuclear weapons, an
imperative of recta ratio and not a derivative of the ‘will’ of States. In effect, to keep hope alive it

is necessary to bear always in mind humankind as a whole” (para. 119).

34. Within the ICJ, Judge Cançado Trindade has made this point also in his Dissenting
Opinion (paras. 488-489) in the case concerning the Application of the Convention against
Genocide (Croatia versus Serbia, Judgment of 03.02.2015). He further ponders that “[t]he presence
of evil has accompanied and marked human existence along the centuries”, with the “increasing
disregard for human life”; the “tragic message of the Book of Genesis”, in his perception, “seems

perennial, as contemporary as ever, in the current nuclear age” (paras. 121-122).

35. His next line of considerations pertain to the attention of the U.N. Charter to peoples, as
shown in several of its provisions, and in its attention also to the safeguarding of values common to
humankind, and to the respect for life and human dignity (part IX). The new vision advanced by
the U.N. Charter, and espoused by the Law of the United Nations — he proceeds — has, in his
perception,

“an incidence upon judicial settlement of international disputes. Thus, the fact that the
ICJ’s mechanism for the handling of contentious cases is an inter-State one, does not
mean that its reasoning should also pursue a strictly inter-State dimension; that will
depend on the nature and substance of the cases lodged with it. And there have been
several cases lodged with the Court that required a reasoning going well beyond the - 14 -

inter-State dimension. Such reasoning beyond the inter-State dimension is faithful to
the U.N. Charter, the ICJ being ‘the principal judicial organ of the United Nations’”

(para. 125).

36. Likewise, the cycle of World Conferences of the United Nations along the nineties, in a
commendable endeavour of the United Nations to go beyond and transcend the purely inter-State
dimension, imbued of a spirit of solidarity, so as to consider the challenges for the future of
humankind. The common denominator in those U.N. World Conferences 

Judge Cançado Trindade adds — can be found in the recognition of the legitimacy of the concern
of the international community as a whole with the conditions of living of all human beings
everywhere. At the end of the decade and the dawn of the new millennium, the United Nations
Millennium Declaration (2000) stated the determination “to eliminate the dangers posed by
weapons of mass destruction” (paras. 129-130).

37. In sum, the nature of a case before the Court may well require a reasoning going beyond

the strictly inter-State outlook; the present case concerning the obligation of nuclear disarmament
requires attention to be focused on peoples, in pursuance of a humanist outlook, rather than on
inter-State susceptibilities. The inter-State mechanism of adjudication of contentious cases before
the ICJ does not at all imply that the Court’s reasoning should likewise be strictly inter-State.
Nuclear disarmament is a matter of concern to humankind as a whole.

38. Contrary to the reasoning of the Court’s majority, the so-called Monetary Gold

“principle” has no place in a case like the present one, and it “does not belong to the realm of the
prima principia, being nothing more than a concession to State consent, within an outdated State
voluntarist framework”. The present case, in the perception of Judge Cançado Trindade, shows

“the need to go beyond the strict inter-State outlook. The fact that the mechanism for
the adjudication of contentious cases before the ICJ is an inter-State one, does not at
all imply that the Court’s reasoning should likewise be strictly inter State. In the
present case concerning nuclear weapons and the obligation of nuclear disarmament, it

is necessary to focus attention on peoples, rather than on inter-State susceptibilities. It
is imperative to keep in mind the world population, in pursuance of a humanist
outlook, in the light of the principle of humanity” (paras. 134-135).

39. The present case of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament stresses the utmost importance of general

principles of international law, such as the principle of the juridical equality of States (part XI).
General principles of law (prima principia) rest in the foundations of any legal system. They inform
and conform its norms, guide their application, and draw attention to the prevalence of jus necessarium
over jus voluntarium (cf. infra).

40. Factual inequalities and the strategy of “deterrence” cannot be made to prevail over the
juridical equality of States; “deterrence” cannot keep on overlooking the distinct series of U.N.

General Assembly resolutions, expressing an opinio juris communis in condemnation of nuclear
weapons (part XII). As also sustained by general principles of international law and international
legal doctrine — Judge Cançado Trindade adds — nuclear weapons are in breach of international
law, of IHL and the ILHR, of the U.N. Charter, and of jus cogens, for the devastating effects and
sufferings they can inflict upon humankind as a whole (paras. 142-143). - 15 -

41. In his understanding, the ICJ should give “far greater weight to the raison d’humanité”,
rather than to the raison d’État nourishing “deterrence”; it should “keep in mind the human person

and the peoples, for which States were created, instead of relying only on what one assumes to be
the raison d’État”. The raison d’humanité, in his understanding, “prevails surely over
considerations of Realpolitik” (para. 143). He adds that, in its 1996 Advisory Opinion, the ICJ
rightly acknowledged the importance of complete nuclear disarmament (asserted in the series of
General Assembly resolutions) as an obligation of result, and not of mere conduct (para. 99), but

“did not extract the consequences of that. Had it done so, it would have reached the

conclusion that nuclear disarmament cannot be hampered by the conduct of a few
States — the NWS — which maintain and modernize their own arsenals of nuclear
weapons, pursuant to their strategy of ‘deterrence’.

The strategy of ‘deterrence’ has a suicidal component. Nowadays, in 2016,
twenty years after the 1996 ICJ Advisory Opinion, and with the subsequent reiteration
of the conventional and customary international legal obligation of nuclear
disarmament, there is no longer any room for ambiguity. There is an opinio juris

communis as to the illegality of nuclear weapons, and as to the well-established
obligation of nuclear disarmament, which is an obligation of result and not of mere
conduct. Such opinio juris cannot be erased by the dogmatic positivist insistence on
an express prohibition of nuclear weapons; on the contrary, that opinio juris discloses
that the invocation of the absence of an express prohibition is nonsensical, in relying
upon the destructive and suicidal strategy of ‘deterrence’” (paras. 144-145).

42. Judge Cançado Trindade concludes on this point that there is here, in effect, clearly
formed, an opinio juris communis as to the illegality and prohibition of nuclear weapons, and the
survival of humankind cannot be made to depend on the “will” and the insistence on “national
security interests” of a handful of privileged States; the “universal juridical conscience stands well
above the ‘will’ of individual States” (para. 150).

43. His next line of considerations pertains to the illegality of nuclear weapons and the

obligation of nuclear disarmament (part XIII), encompassing: a) the condemnation of all weapons
of mass destruction; b) the prohibition of nuclear weapons (the need of a people-centred approach,
and the fundamental right to life); c) the absolute prohibitions of jus cogens and the humanization
of international law; d) pitfalls of legal positivism. Judge Cançado Trindade stresses the need of a
people-centred approach in this domain, keeping in mind the fundamental right to life
(paras. 176-189). Attention is to be kept on the devastating and catastrophic consequences of the
use of nuclear weapons.

44. He warns that, in the path towards nuclear disarmament, the peoples of the world cannot
remain hostage of individual State consent. The absolute prohibitions of arbitrary deprivation of
human life, of infliction of cruel, inhuman or degrading treatment, and of infliction of unnecessary
suffering, are prohibitions of jus cogens, which have an incidence on ILHR, IHL, ILR and ICL,
fostering the current historical process of humanization of international law (paras. 190-193).

45. He further warns that the positivist outlook unduly overlooks the opinio juris communis
as to the illegality of all weapons of mass destruction, including nuclear weapons, and the
obligation of nuclear disarmament, under contemporary international law (para. 199).
Conventional and customary international law go together — he adds — in the domain of the
protection of the human person, as disclosed by the Martens clause, with an incidence on the
prohibition of nuclear weapons (paras. 201-209). - 16 -

46. To Judge Cançado Trindade, the existence of nuclear weapons is the contemporary
tragedy of the nuclear age; today, more than ever, human beings need protection from themselves.

Nuclear weapons have no ethics, and ethics cannot be separated from law, as taught by jusnaturalist
thinking (part XV). He ponders that

“In the domain of nuclear disarmament, we are faced today, within the
conceptual universe of international law, with unexplainable insufficiencies, or
anomalies, if not absurdities. For example, there are fortunately in our times
Conventions prohibiting biological and chemical weapons (of 1972 and 1993), but

there is to date no such comprehensive conventional prohibition of nuclear weapons,
which are far more destructive. There is no such prohibition despite the fact that they
are in clear breach of international law, of IHL and the ILHR, as well as of the Law of
the United Nations.

Does this make any sense? Can international law prescind from ethics? In my
understanding, not at all. Just as law and ethics go together (in the line of jusnaturalist
thinking), scientific knowledge itself cannot be dissociated from ethics. The

production of nuclear weapons is an illustration of the divorce between ethical
considerations and scientific and technological progress. Otherwise, weapons which
can destroy millions of innocent civilians, and the whole of humankind, would not
have been conceived.

The principles of recta ratio, orienting the lex praeceptiva, emanate from human
conscience, affirming the ineluctable relationship between law and ethics. Ethical

considerations are to guide the debates on nuclear disarmament. Nuclear weapons,
capable of destroying humankind as a whole, carry evil in themselves. They ignore
civilian populations, they make abstraction of the principles of necessity, of distinction
and of proportionality. They overlook the principle of humanity. They have no
respect for the fundamental right to life. They are wholly illegal and illegitimate,
rejected by the recta ratio, which endowed jus gentium, in its historical evolution, with
ethical foundations, and its character of universality” (paras. 211-213).

47. In Judge Cançado Trindade’s understanding, humankind is subject of rights (as
propounded by the “founding fathers” of international law); in the realm of the humanized new
jus gentium; as a subject of rights, humankind has been a potential victim of nuclear weapons
already for a long time. This humanist vision is centred on peoples, keeping in mind the humane
ends of States.

48. In his view, the contemporary tragedy of nuclear weapons cannot be addressed from “the
myopic outlook of positive law alone”; nuclear weapons, and other weapons of mass destruction,
have no ethics, have no ground on the law of nations (le droit des gens). They are in flagrant
breach of its fundamental principles, and those of IHL, the ILHR, as well as the Law of the
United Nations; they are a contemporary “manifestation of evil, in its perennial trajectory going
back to the Book of Genesis”. Jusnaturalist thinking, “always open to ethical considerations”,
identifies and discards the disrupting effects of the strategy of “deterrence” of fear creation and

infliction; “humankind is victimized by this” (para. 217).

49. The next line of considerations of Judge Cançado Trindade concerns the principle of
humanity (para. 221) and the universalist approach, with the jus necessarium transcending the
limitations of jus voluntarium (part XVI). He recalls that, on several occasions, in his Individual
Opinions both in the ICJ and, earlier on, in another international jurisdiction (the IACtHR), he
underlined that - 17 -

“the law of nations (droit des gens), since its historical origins in the XVIth century,
was seen as comprising not only States (emerging as they were), but also peoples, the

human person (individually and in groups), and humankind as a whole. The strictly
inter-State outlook was devised much later on, as from the Vattelian reductionism of
the mid-XVIIIth century, which became en vogue by the end of the XIXth century and
beginning of the XXth century, with the well-known disastrous consequences — the
successive atrocities victimizing human beings and peoples in distinct regions of
world, — along the whole XXth century. In the present nuclear age, extending for the
last seven decades, humankind as a whole is threatened” (para. 223).

50. The conventional and customary obligation of nuclear disarmament — he proceeds —
brings to the fore another aspect:

“the issue of the validity of international legal norms is, after all, metajuridical.
International law cannot simply remain indifferent to values, general principles of law
and ethical considerations; it has, to start with, to identify what is necessary — such

as a world free of nuclear weapons — in order to secure the survival of humankind.
This idée du droit precedes positive international law, and is in line with jusnaturalist
thinking. (…)

It is clear to human conscience that those weapons, which can destroy the whole
of humankind, are unlawful and prohibited. They are in clear breach of jus cogens”
(paras. 231-233).

51. Judge Cançado Trindade then addresses other aspects of the matter at issue, mentioned
by the contending parties in the present case of Obligations Concerning Negotiations Relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament. He points out that opinio juris
communis necessitatis, upholding a customary and conventional obligation of nuclear disarmament,
has been finding expression, first, in the NPT Review Conferences, from 1975 to 2015 (part XVII).

52. Secondly, the same has happened in the relevant establishment of nuclear-weapon-free
zones (part XVIII), to the ultimate benefit of humankind as a whole (para. 257). Basic
considerations of humanity have surely been taken into account for the establishment of those
zones, by the adoption of the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America
and the Caribbean (Tlatelolco), followed by four others of the kind, in distinct regions of the world,
namely the 1985 South Pacific (Rarotonga) Nuclear-Free Zone Treaty, the 1995 Southeast Asia
(Bangkok) Nuclear-Weapon-Free Zone Treaty, the 1996 African (Pelindaba) Nuclear Weapon-Free

Zone Treaty, as well as the 2006 Central Asian (Semipalatinsk) Nuclear-Weapon-Free Zone Treaty
(and their respective Protocols).

53. The establishment of those nuclear-weapon-free zones has, in effect, given expression to
the growing disapproval of nuclear weapons by the international community as a whole (para. 250).
To the establishment of aforementioned five nuclear-weapon-free zones other initiatives against
nuclear weapons are to be added — Judge Cançado Trindade proceeds — such as the prohibitions

of placement of nuclear weapons, and other kinds of weapons of mass destruction, in outer space,
on the seabed, on the ocean floor and in the subsoil beyond the outer limit of the territorial seabed
zone — “denuclearized” by the Treaties of Antarctica (1959), Outer Space (1967) and the Deep
Sea Bed (1971), respectively, to which can be added the Treaty on the Moon and Other Celestial
Bodies (1979), established a complete demilitarization thereon (para. 261). - 18 -

54. The fact that the international community counts today on five nuclear-weapon-free
zones, in relation to which States that possess nuclear weapons do have a particular responsibility,

“reveals an undeniable advance of right reason, of the recta ratio in the foundations of
contemporary international law”. Moreover, the initiative of nuclear-weapon-free zones keeps on
clearly gaining ground: in recent years, proposals are being examined for the setting up of new
denuclearized zones of the kind, as well as of the so-called single-State zone (e.g., Mongolia). All
this “further reflects the increasing disapproval, by the international community as a whole, of
nuclear weapons, which, in view of their hugely destructive capability, constitute an affront to right
reason (recta ratio)” (para. 262).

55. And thirdly, the same has happened in respect of the recent Conferences of the
Humanitarian Impact of Nuclear Weapons (part XIX — held, respectively, in Oslo in March 2013,
in Nayarit in February 2014, and in Vienna in December 2014) — in their common cause of
achieving and maintaining a nuclear-weapon-free world. This recent series of Conferences —
examined by Judge Cançado Trindade — has drawn attention to the humanitarian effects of nuclear
weapons, “restoring the central position of the concern for human beings and peoples”; it has thus

“stressed the importance of the human dimension of the whole matter, and has endeavoured to
awaken the conscience of the whole international community as well as to enhance the needed
humanitarian coordination in the present domain” (para. 265).

56. Given their devastating effects, nuclear weapons should never have been conceived and
produced. The Nayarit and Vienna Conferences participants heard the poignant testimonies of
some Hibakusha — survivors of the atomic bombings of Hiroshima and Nagasaki — who

presented their accounts of the overwhelming devastation inflicted on those cities and their
inhabitants by the atomic blasts (including the victims’ burning alive, and carbonized or vaporized,
as well as the long-term effects of radiation, such as the birth of “monster-like babies”, the
continuous suffering from “thyroid cancer, liver cancer and all types of radiogenic cancerous
illnesses”, extending over the years, and killing survivors along seven decades) (paras. 273
and 281).

57. This series of recent Conferences on the Humanitarian Impact of Nuclear Weapons have
contributed to a deeper understanding of the consequences and risks of a nuclear detonation, and
have demonstrated their devastating immediate, mid- and long-term effects of the use and testing of
nuclear weapons; they have focused to a larger extent on the legal framework (and gaps therein)
with regard to nuclear weapons (paras. 284-285 and 287-291). In the struggle against nuclear
weapons, a “Humanitarian Pledge” has ensued from the Vienna Conference, which, by April 2016,
has been formally endorsed by 127 States (para. 292-294).

58. Judge Cançado Trindade concludes on this point that all these recent initiatives (supra)
have been

“rightly drawing attention to the grave humanitarian consequences of nuclear weapons
detonations. The reframing of the whole matter in a people-centred outlook appears to
me particularly lucid, and necessary, keeping in mind the unfoundedness of the

strategy of ‘deterrence’ and the catastrophic consequences of the use of nuclear
weapons. (…)

The obligation of nuclear disarmament being one of result, the ‘step-by-step’
approach cannot be extended indefinitely in time, with its insistence on the
maintenance of the nuclear sword of Damocles. The ‘step-by-step’ approach has
produced no significantly concrete results to date, seeming to make abstraction of the - 19 -

numerous pronouncements of the United Nations upholding the obligation of nuclear
disarmament (cf. supra). After all, the absolute prohibition of nuclear weapons —

which is multifaceted, is one of jus cogens (cf. supra). Such weapons, as the
Conferences on the Humanitarian Impact of Nuclear Weapons have evidenced, are
essentially inhumane, rendering the strategy of ‘deterrence’ unfounded and
unsustainable” (paras. 295-296).

59. Moreover, those initiatives, reviewed in the present Dissenting Opinion (NPT Review
Conferences, the establishment of nuclear-weapon-free zones, and the Conferences on the

Humanitarian Impact of Nuclear Weapons) — referred to by the contending parties in the course of
the proceedings before the ICJ in the present case of Obligations Concerning Negotiations Relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament — “have gone beyond the
inter-State outlook”. In Judge Cançado Trindade’s perception, “there is great need, in the present
domain, to keep on looking beyond States, so as to behold peoples’ and humankind’s quest for
survival in our times” (para. 299).

60. After recalling that nuclear weapons, “as from their conception, have been associated
with overwhelming destruction” (para. 300), Judge Cançado Trindade proceeds to his final
considerations (part XX). In his own understanding, opinio juris communis — to which
U.N. General Assembly resolutions have contributed — has a much broader dimension than the
subjective element of custom, being a key element in the formation of a law of conscience, so as to rid
the world of the inhuman threat of nuclear weapons.

61. U.N. (General Assembly and Security Council) resolutions are adopted on behalf of the
United Nations Organization itself (and not only of the States which voted in their favour); they
are thus valid for all U.N. member States. Of the main organs of the United Nations, the
contributions of the General Assembly, the Security Council and the Secretary-General to nuclear
disarmament have been consistent and remarkable along the years. The ICJ, as the principal
judicial organ of the United Nations, is to keep in mind basic considerations of humanity, with their
incidence on questions of admissibility and jurisdiction, as well as of substantive law.

62. Opinio juris has already had a long trajectory in legal thinking, being today endowed
with a wide dimension. Already in the XIXth century, the so-called “historical school” of legal
thinking and jurisprudence, “in reaction to the voluntarist conception, gradually discarded the ‘will’
of the States by shifting attention to opinio juris, requiring practice to be an authentic expression of
the ‘juridical conscience’ of nations and peoples”. With the passing of time, the acknowledgment
of conscience standing above the “will” developed further, as “a reaction against the reluctance of

some States to abide by norms addressing matters of general or common interest of the
international community” (para. 303). Judge Cançado Trindade adds that

“opinio juris became a key element in the formation itself of international law, a law
of conscience. This diminished the unilateral influence of the most powerful States,
fostering international law-making in fulfilment of the public interest and in pursuance
of the common good of the international community as a whole.

The foundations of the international legal order came to be reckoned as
independent from, and transcending, the ‘will’ of individual States; opinio juris
communis came to give expression to the ‘juridical conscience’, no longer only of
nations and peoples — sustained in the past by the ‘historical school’ — but of the
international community as a whole, heading towards the universalization of
international law. It is, in my perception, this international law of conscience that - 20 -

turns in particular towards nuclear disarmament, for the sake of the survival of
humankind” (paras. 304-305).

63. Judge Cançado Trindade further recalls that, along the years, he has consistently
repudiated “voluntarist positivism”, as he does now in the present Dissenting Opinion, in respect of
“the customary and conventional international obligation to put an end to nuclear weapons”, so as
“to rid the world of their inhuman threat” (paras. 307-309). He then ponders that
U.N. General Assembly or Security Council resolutions on the present matter, surveyed herein,

“are adopted on behalf not of the States which voted in favour of them, but more
precisely on behalf of the United Nations Organization itself (its respective organs),
being thus valid for all U.N. member States. (…) [T]he U.N. is endowed with an
international legal personality of its own, which enables it to act at international level
as a distinct entity, independently of individual member States; in this way, it
upholds the juridical equality of all States, and mitigates the worrisome vulnerability
of factually weaker States, such as the NNWS; in doing so, it aims — by

multilateralism — at the common good, at the realization of common goals of the
international community as a whole, such as nuclear disarmament.

A small group of States — such as the NWS — cannot overlook or minimize
those reiterated resolutions, extended in time, simply because they voted against them,
or abstained. Once adopted, they are valid for all U.N. member States. They are
resolutions of the United Nations Organization itself, and not only of the large
majority of U.N. member States which voted in favour of them.

U.N. General Assembly resolutions, reiteratedly addressing matters of concern to
humankind as a whole (such as existing nuclear weapons), are in my view endowed
with normative value. They cannot be properly considered from a State voluntarist
perspective; they call for another approach, away from the strict voluntarist-positivist
one” (paras. 310-311).

64. Those resolutions — he proceeds — “find inspiration in general principles of

international law, which, for their part, give expression to values and aspirations of the
international community as a whole, of all humankind”. The values which find expression in those
prima principia “inspire every legal order and, ultimately, lie in the foundations of this latter”
(para. 312). The general principles of law (prima principia), in his perception,

“confer upon the (national and international) legal order its ineluctable axiological
dimension. Notwithstanding, legal positivism and political ‘realism’, in their

characteristic subservience to power, incur into their basic mistake of minimizing
those principles, which lie in the foundations of any legal system, and which inform
and conform the norms and the action pursuant to them, in the search for the
realization of justice. Whenever that minimization of principles has prevailed the
consequences have been disastrous” (para. 313).

65. They have been contributing, in the last decades, to a vast corpus juris on matters of

concern to the international community as a whole, overcoming the traditional inter-State paradigm
of the international legal order. And this can no longer be overlooked in our days: the inter-State
mechanism of the contentieux before the ICJ “cannot be invoked in justification for an inter-State
reasoning”. As “the principal judicial organ” of the United Nations, - 21 -

“the ICJ has to bear in mind not only States, but also ‘we, the peoples’, on whose
behalf the U.N. Charter was adopted. In its international adjudication of contentious

cases, like the present one of Obligations Concerning Negotiations Relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the ICJ has to bear
in mind basic considerations of humanity, with their incidence on questions of
admissibility and jurisdiction, as well as of substantive law” (para. 314).

66. Last but not least, in his epilogue (part XXI), Judge Cançado Trindade expresses the
feeling of being in peace with his own conscience, in laying the foundations of his own personal

position in the cas d’espèce, which “stands in clear and entire opposition to the view espoused by
the Court’s majority”. In his understanding,

“there is a dispute before the Court, which has jurisdiction to decide the case. There is
a conventional and customary international law obligation of nuclear disarmament.
Whether there has been a concrete breach of this obligation, the Court could only
decide on the merits phase of the present case” (para. 315).

67. His dissenting position “is grounded not only on the assessment of the arguments
produced before the Court by the contending parties, but above all on issues of principle and on
fundamental values, to which I attach even greater importance” (para. 316). In conclusion — he
adds — “[a] world with arsenals of nuclear weapons, like ours, is bound to destroy its past,
dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into
nothingness” (para. 331). In his understanding,

“the International Court of Justice, as the principal judicial organ of the
United Nations, should, in the present Judgment, have shown sensitivity in this
respect, and should have given its contribution to a matter which is a major concern of
the vulnerable international community, and indeed of humankind as a whole”
(para. 331).

Declaration of Judge Xue

Judge Xue votes in favour of the Judgment because she agrees with the decision of the Court
to dismiss the case for lack of jurisdiction. Notwithstanding her vote, she wishes to make two
points on the Judgment.

Her first point relates to the approach taken by the Court with regard to the existence of a
dispute. In the Judgment, the Court finds that the evidence submitted to it fails to demonstrate that

there existed between the Parties a dispute concerning the subject of the Application at the time the
Marshall Islands instituted proceedings in the Court. Consequently, the condition for the Court’s
jurisdiction is not met. The Court reaches this conclusion primarily on the ground that, in all the
circumstances, the Marshall Islands never offered any particulars to India, either in words or by
conduct, which could have made India aware that the Marshall Islands held a legal claim against it
for breach of its international obligation to negotiate on nuclear disarmament.

Judge Xue notes that the Court does not deal with the other objections raised by the

Respondent, but dismissed the case by solely relying on the finding that there did not exist a
dispute between the Parties at the time of the filing of the Application. Therefore, it is not
unpredicted that questions arise as to the propriety of this formal and restrictive approach. Given
the Court’s past practice of judicial flexibility in handling procedural defects, it may be arguable
that the non-existence of a dispute between the Parties at the time of the filing of the Application
could by itself constitute a solid ground for the Court to reject the case; the Marshall Islands might - 22 -

readily come back and file a new case to the same effect, as by now the dispute is indeed
crystallized. For judicial economy, realism and flexibility seem called for under the present

circumstances.

The reason for Judge Xue to support the Court’s decision is threefold. First of all, in her
opinion, there must be a minimum requirement for the Applicant to demonstrate to the Court that
there existed a dispute between the Parties before the case is instituted. The evidence submitted by
the Marshall Islands regarding the existence of a dispute between the Parties is noticeably
insufficient. The Marshall Islands heavily relies on the positions expressed by the Parties during

the current proceedings to demonstrate that one Party’s claim was positively opposed by the other.
As is pointed out by the Court, should that argument be accepted, it would virtually render the
condition of the existence of a dispute without any meaning and value. More fundamentally, in her
opinion, it would undermine the confidence of States in accepting the compulsory jurisdiction of
the Court.

Secondly, even though prior notice and diplomatic exchanges are not required as a condition
for the existence of a dispute, “surprise” litigation should nevertheless be discouraged. Any

peaceful means of settlement, including judicial recourse, is aimed at the resolution of the dispute.
Whenever the circumstances permit, a clear demonstration of a legal claim to the responsible party
would facilitate the process of negotiation and settlement. The Court may take into account the
post-application conduct of the parties as supplementary evidence to satisfy itself for the purpose of
jurisdiction and admissibility, but judicial flexibility has to be exercised within a reasonable limit.

Thirdly, the Court’s jurisdiction is built on mutuality and reciprocity. The present case is

different in character from the previous cases where the Court took a flexible approach in dealing
with some procedural defects. Judge Xue observes that the Marshall Islands did not institute the
proceedings merely for the protection of its own interest, albeit a victim of nuclear weapons.
Rather the case serves more the interest of the international community. Although the Court
recognized obligations erga omnes in international law in the Barcelona Traction case (Barcelona
Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, p. 32, para. 33), it did not address the question of standing, locus standi, an issue that

is yet to be developed in international law.

As to her second point, Judge Xue regrets very much that the Court does not proceed further
to deal with some other objections raised by the Respondent. India argues, inter alia, that on the
basis of the Monetary Gold rule, the alleged dispute cannot be decided by the Court in the absence
of the other nuclear-weapon States. Moreover, it maintains that the alleged obligation to negotiate
requires the participation of all nuclear-weapon States — and others. A decision binding the
Marshall Islands and India therefore could not have the desired effect.

In her opinion, these objections deserve an immediate consideration of the Court at the
preliminary stage, as the answer to them would have a direct effect on the jurisdiction of the Court
and the admissibility of the Application. Had it done so, the Court would be in a better position to
demonstrate that, so far as the questions of jurisdiction and admissibility are concerned, the
Marshall Islands’ Application is not merely defective in one procedural form.

She recalls the Court’s Advisory Opinion in the Legality of the Threat or Use of Nuclear

Weapons case, in which the Court stated that “any realistic search for general and complete
disarmament, especially nuclear disarmament, necessitates the co-operation of all States” (Legality
of the Threat or the Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 264,
para. 100; emphasis added) and that the obligation under Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons is not a mere obligation of conduct, but an obligation to
achieve a precise result. - 23 -

Judge Xue observes that it has been twenty years since this Advisory Opinion was delivered.
She notes that there has been a collective failure to deliver, but the issue for the present case is

whether such a failure can be turned into a series of bilateral disputes, and addressed separately.
She wonders whether such disagreement, as may exist between some nuclear-weapon States, on the
one hand, and non-nuclear-weapon States, on the other, on the cessation of nuclear arms race and
the negotiation process on nuclear disarmament, can be characterized as a dispute that falls within
the meaning of Articles 36 and 38 of the Statute. She questions whether a dispute as such,
assuming existent at the time of the filing of the application or crystallized subsequently, is
justiciable for the Court to settle through contentious proceedings. In her view, the Court

emphasizes a bit too much the way in which a dispute may be materialized, but does not give
sufficient consideration to the nature of the dispute that the Marshall Islands alleges to have existed
between India and itself.

Declaration of Judge Donoghue

Judge Donoghue notes that the criteria pursuant to which the Court decides on the existence

of a dispute are not found in the Statute of the Court, but are instead contained in the reasoning of
the Court’s judgments. This calls for clarity in those criteria and for their consistent application.
Judge Donoghue considers that the Court’s inquiry into the existence of a dispute in today’s
Judgment follows the reasoning contained in the recent jurisprudence of the Court.

As to the Marshall Islands’ proposition that opposing statements made by the parties during
the proceedings before the Court can suffice to establish the existence of a dispute,
Judge Donoghue considers that in its recent judgments the Court has not found the existence of a

dispute based solely on the parties’ statements in Court, but instead has adhered to the principle
that the evidence must show that a dispute existed as of the date of an application, as it does today.

Concerning the Marshall Islands’ contention that the Court should infer the existence of a
dispute from the juxtaposition of the Marshall Islands’ statements with the Respondent’s conduct,
Judge Donoghue observes that the objective standard applied today to scrutinize the evidence is
consistent with the recent case law of the Court. The essential question is whether the Applicant’s

statements referred to the subject-matter of its claim against the Respondent — i.e., “the issue
brought before the Court” in the Application — with sufficient clarity that the Respondent “was
aware, or could not have been unaware,” of the Applicant’s claim against it. As this was not the
case, there was no reason to expect a response from the Respondent nor for the Court to infer
opposition from the alleged unaltered course of conduct of the Respondent. Accordingly, there was
no opposition of views, and no dispute, as of the date of the Application.

Declaration of Judge Gaja

Having reached the conclusion that there was no dispute between the Parties on the date
when the Application was filed, the Court decides not to examine the other objections raised by the
respondent States. Given that disputes have clearly arisen since that date, it would have been
preferable for the Court to examine also other objections made by the respondent States which are
likely to be litigated again should the Marshall Islands file new applications.

Separate opinion of Judge Sebutinde

The object and purpose of the United Nations Charter is the maintenance of international
peace and security. It is in light of that object and purpose that the International Court of Justice
(ICJ), as the principal judicial organ of the United Nations, discharges its mandate to decide
inter-State disputes on the basis of international law. The object and purpose of the United Nations - 24 -

becomes apparent in view of the threat to international peace and security posed by nuclear
weapons.

The subject-matter of the dispute between the Parties is the alleged breach by the Republic of
India of an international obligation under customary international law to pursue in good faith and to
bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control. Both the Republic of the Marshall Islands (RMI) and India filed
optional clause declarations under Article 36, paragraph 2, of the Statute of the ICJ, in 2013 and
1974 respectively, accepting the compulsory jurisdiction of the Court. However, the existence of a

dispute is a precondition for the exercise of that jurisdiction.

It is the role of the Court (and not the Parties) to objectively determine whether or not at the
time the Application was filed, there was “a disagreement on a point of law or fact, or a conflict of
legal views or interests” between the Parties, regarding the above-mentioned subject-matter. The
Court’s jurisprudence demonstrates that the Court has in the discharge of this function adopted a
flexible approach attaching more importance to the substance of the evidence, including the
conduct of the parties, rather than to matters of form or procedure. The approach and reasoning

adopted by the majority in arriving at the conclusion that there is no dispute between the Parties in
the present case, is not only both formalistic and procedural, but is also inflexible in as far as it
does not take due account of the conduct of the Parties. A more flexible, substantive approach
examining the conduct of the Parties as relevant evidence, would have shown that the RMI and
India clearly held opposing views regarding the subject-matter of the present dispute.

Lastly, by insisting that, in order for a dispute to exist, an applicant must prove that the

respondent State “was aware or could not have been unaware that its views were positively
opposed by the applicant”, the majority has introduced a new legal test that is alien to the Court’s
established jurisprudence and that unduly raises the evidential threshold. Apart from unduly
emphasizing form over substance, this new legal criterion of “awareness” introduces a degree of
subjectivity into an equation that ought to remain objective, since it requires both an applicant and
the Court to delve into the mind of a respondent State. The jurisprudence relied upon by the
majority in adopting this new criterion is distinguishable and inapplicable to the present case.

Separate opinion of Judge Bhandari

In his separate opinion, Judge Bhandari recalls that he has concurred with the conclusions of
the majority Judgment. However, he wishes to expand the basis of the reasoning of the Judgment,
and proposes to deal with another aspect of the case, namely that, in the facts of this case, the Court
ought to have dealt with the other preliminary objections raised by India because the issues raised
in the case affect not only the Parties, but also the entire humanity.

Judge Bhandari stated that, according to the Statute of the Court and its jurisprudence, this
Court can only exercise its jurisdiction in case of a dispute between the Parties. Hence, the
question to be decided is whether from the documents, pleadings and the conduct of the Parties it
can be established that a dispute existed between them at the time of the filing of the Application in
the terms prescribed by the applicable legal instruments and the Court’s jurisprudence. He then
refers to the relevant statutory provisions (Articles 36, paragraph 2, and 38, paragraph 1, of the

Statute of the Court), the definition of “dispute” and the Respondent’s reliance on the South West
Africa cases, the Fisheries Jurisdiction (Spain v. Canada) case and the Nuclear Tests cases.
Thereafter, he recalls that, in determining the existence of a dispute, the Court has reviewed in
detail the Parties’ diplomatic exchanges, documents and statements (Georgia v. Russia and
Belgium v. Senegal) in order to establish whether there is “a disagreement on a point of law or fact,
a conflict of legal views or of interests” (Mavrommatis Palestine Concessions). Given these
considerations, he deems it proper to recapitulate the documents, pleadings and submissions of the

Parties to determine whether a dispute in fact existed between them at the time of the Application. - 25 -

Judge Bhandari begins this analysis with a consideration of the Marshall Islands’ own
submissions in its Application and during the oral proceedings, where it recognized that India’s

conduct is in fact pro-disarmament and that it has repeatedly and publicly stated so. He further
recalls that the Applicant acknowledges that India supported, as it has done continuously since the
days before its Independence, the call for nuclear disarmament.

The Respondent India filed a large number of documents and pleadings to demonstrate that
India’s nuclear policy has remained consistent since its Independence, regardless of the different
parties and politicians who have at turns ruled and represented the country. India’s case has been

examined in light of the Statute and jurisprudence of the Court. All documents and pleadings from
1945, when nuclear weapons were used for the first time, to date and the irresistible conclusion is
that India has had a consistent and unwavering stand on disarmament.

The convergence of the Parties’ positions was further recalled by reference to the
intervention of the Respondent’s agent during the oral proceedings, who stated that “the position of
the parties at [the Nayarit] conference regarding the need for nuclear disarmament actually
coincided”. It is evident from the excerpts transcribed in the opinion that there is more

convergence than divergence on the Parties’ stated positions. Nuclear disarmament is a complex
issue and it is clear that the Parties’ positions are not identical. But they are very far from being so
distant as to qualify for the existence of a dispute.

In his separate opinion, Judge Bhandari concludes that, on application of the Court’s Statute
and its jurisprudence, as well as the documents and pleadings placed before the Court, the
irresistible conclusion is the absence of any dispute between the Parties, and consequently, on the

facts of this case, this Court lacks jurisdiction to deal with this case. The majority Judgment,
instead of looking into these aspects closely, chose to focus mainly on the lack of awareness of the
Respondent of the impending dispute.

The Court has the freedom to choose any preliminary objection when examining its own
jurisdiction and, in doing so, it usually chooses the most “direct and conclusive” (Norwegian
Loans). In the instant case, by choosing the lack of awareness on the part of the Respondent as the
main ground for the dismissal of the claim, the Court has not chosen the most “direct and

conclusive” ground for dismissal, as the lack of awareness on the part of the Respondent can easily
be cured by the Applicant by giving proper notice of the dispute to the Respondent. In that case,
the Applicant could simply bring the case again before the Court. This would be an undesirable
result and should be discouraged. The Parties have already submitted documents, pleadings and
submissions in extenso. In the facts of this case, this Court ought to have examined the other
preliminary objections. Otherwise, a re-submission of the case again would entail a waste of the
efforts, time and resources already spent by the Parties and the Court in the treatment of this matter.

Consequently, Judge Bhandari considers in his separate opinion that, in the facts of this case,
the Court should have examined the other preliminary objections taken by the Respondent, namely,
lack of jurisdiction due to the absence of essential parties not party to the instant proceedings
(Monetary Gold principle), that any judgment given by the Court would serve no practical purpose,
and the application of reservations numbers 4, 5, 7 and 11 to India’s optional clause declaration
under Article 36 (2) of the Statute of the Court, recognizing the Court’s compulsory jurisdiction. In

relation to the Monetary Gold principle in particular, it is recalled that in its 1996 Advisory
Opinion on nuclear weapons the Court considered that any realistic search for general and complete
disarmament would require the co-operation of all States. These preliminary objections are
substantial in character and ought to have been adjudicated by the Court. - 26 -

Dissenting opinion of Judge Robinson

Judge Robinson disagrees with the majority’s conclusion that there is no dispute in this case.

The United Nations Charter has assigned the Court a special role, giving it a particular
relevance in the maintenance of international peace and security through the exercise of its judicial
functions. The majority’s decision today fails to demonstrate sensitivity to this role.

The Court’s case law has been consistent in the approach to be adopted in determining the
existence of a dispute; an approach that is not reflected in today’s Judgment. The jurisprudence of

the Court calls for an objective, flexible and pragmatic approach in determining the existence of a
dispute. It is firmly established in the Court’s jurisprudence that a dispute arises where, examined
objectively, there are “clearly opposite views concerning the question of the performance or
non-performance” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74) of a State’s obligations. There is not a single
case in the Court’s case law that authorizes the majority’s proposition that the determination of the
existence of a dispute requires a finding of the respondent’s awareness of the applicant’s positive

opposition to its views. While awareness may act as evidence that confirms the existence of a
dispute, framing awareness as a prerequisite for a dispute is a departure from the empirical and
pragmatic enquiry that the Court must undertake: an enquiry focused simply on whether or not the
evidence reveals clearly opposite views.

The majority also misconstrues the plain meaning of its dicta and its own case law in
concluding that post-Application evidence may act simply to confirm the existence of a dispute.

The Court’s approach to this question has been less definitive and uncompromising than the
majority would like to suggest. The Court has given itself room to afford significant weight to
statements made during the proceedings, particularly the denial of allegations by the respondent,
not just to confirm but to establish a dispute. This is entirely consistent with the flexible, pragmatic
approach that is the hallmark of the Court’s jurisprudence on this question. A respondent’s
opportunity to react is more properly addressed as a question of procedural due process rather than
as an element of the dispute criterion.

Another reason for rejecting the majority decision is that it militates against the sound
administration of justice, a principle that the Court has emphasized on more than one occasion.
The Court spoke against an approach that would lead to, what it termed, the “needless proliferation
of proceedings” (Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 443,
para. 89). An odd result of the majority Judgment is that, given the basis on which the claim has
been dismissed, the Applicant could, in theory, file another Application against the Respondent.

The facts of this case show that there was a dispute between the Applicant and the
Respondent. Even though Judge Robinson disagrees with the majority’s position that awareness is
not a prerequisite for a finding that a dispute exists, it is hard to conclude that the Respondent
“could not have been unaware” of the opposite views of the Parties.

The majority’s holding today has placed an additional and unwarranted hurdle in the way of

claims that may proceed to be examined on the merits. In so doing, it has detracted from the
potential of the Court to play the role envisaged for it as a standing body for the peaceful settlement
of the disputes and through this function, as an important contributor to the maintenance of
international peace and security. This conclusion is rendered even more telling by the
subject-matter of the dispute before the Court today. - 27 -

Dissenting opinion of Judge Crawford

Judge Crawford disagreed with the “objective awareness” test for the existence of a dispute
adopted by the majority. No such legal requirement was to be found in the Court’s jurisprudence.
An objective awareness test was difficult to distinguish from a formal notice requirement, which
the Court had rejected. Moreover, the Court had traditionally exercised flexibility in determining
the existence of a dispute. While Judge Crawford agreed that in principle the dispute should exist
at the time the application was filed, a finding of a dispute could be based, inter alia, on
post-application conduct or evidence, including the statements of the parties in the proceedings.

As well as disagreeing with the Court’s statement of the law, Judge Crawford disagreed with
its application to the facts. In particular, the dispute in question should have been characterized as
a multilateral dispute, relying on South West Africa (Preliminary Objections) as authority for the
proposition that such a dispute may crystallize in multilateral fora involving a plurality of States.
In his view there was, at the least, an incipient dispute between the Applicant and the Respondent
as at the date of the Application, given that the Marshall Islands had associated itself with one side
of a multilateral disagreement with the nuclear-weapon States.

Since there was, at the date of the Application, a dispute between the Marshall Islands and
the Respondent as to the latter’s compliance with Article VI of the NPT or its customary
international law equivalent, it was unnecessary to consider whether any deficiency could and
should be remedied in the exercise of the Mavrommatis discretion, as recently articulated in
Croatia v. Serbia.

Judge Crawford also referred to one of the other objections to jurisdiction and admissibility

raised by the Respondent, the Monetary Gold objection. In his view this was a question for the
merits stage. Whether it was necessary as a precondition for resolving the dispute for the Court to
rule on the rights and obligations of third parties to the dispute would depend, inter alia, on the
scope and application of Article VI of the NPT, or any parallel customary international law
obligation.

Dissenting opinion of Judge ad hoc Bedjaoui

I. Introduction

Judge ad hoc Bedjaoui voted against the operative clause adopted by the Court in the case
between the Marshall Islands and India. He believes that a dispute does exist between the Marshall
Islands and the Respondent.

He notes that although the Court has always adhered to a standard general definition of a
legal dispute, it has not shown the same level of consistency in respect of the criteria it has itself
identified for determining the existence of that dispute. The most significant break from its
jurisprudence can be seen in the Judgment of 1 April 2011 in the Georgia v. Russian Federation
case, and this was continued in the case concerning Questions relating to the Obligation to
Prosecute or Extradite.

II. A traditionally less formalistic jurisprudence

Judge ad hoc Bedjaoui argues that the Court’s present approach, which pays a heavy price
for a certain degree of formalism, could rightly be regarded as a move away from its traditional
jurisprudence. - 28 -

He refers to the Court’s clarity and resourcefulness in the exercise of both its advisory and
contentious functions. The Court has successfully avoided falling prisoner to the letter of the

Charter and the lacunae of international law. Judge ad hoc Bedjaoui gives a quick and simplified
overview of the Court’s jurisprudence, leaving him saddened at the impression that might be left by
today’s decision in the present case.

In his view, it is all the more vital that the Court should endeavour to clarify how it
determines the existence of a dispute, since this is a fundamental question on which both its
jurisdiction and the exercise of its jurisdiction directly depend. It is essential for the Court to show

greater consistency when determining the criteria for establishing the existence of a dispute and
when applying those criteria to each individual case. Failing to do so creates legal uncertainty for
States and a certain level of confusion for readers, none of them knowing why one case may benefit
from the Court’s understanding, when another cannot aspire to do so.

Besides this first duty of consistency, Judge ad hoc Bedjaoui believes that the Court must
also guard against fossilization. Being committed to the rational application of criteria does not
preclude simultaneously remaining open to changing global concerns; it is by no means a case of

the Court accepting every new idea, but of knowing when and how to limit, or, alternatively, to
expand, the application of the criteria at the root of the Mavrommatis and South West Africa
Judgments, and, above all, explaining each time why it is necessary to favour flexibility or
formalism in that particular case.

To his mind, the greatest danger for the moment remains excessive formalism, especially
when, as is the case here, it combines with a jurisprudence which is entirely unclear for the future.

That evidently increases the risk of the arbitrary.

III. Notification/“awareness”?

Judge ad hoc Bedjaoui is of the opinion that while the Court has traditionally been reticent to
make notification of the dispute by the applicant to the respondent a precondition for the institution
of proceedings, since the 2011 decision there has been uncertainty obscuring the general view.

He laments the fact that the Court seems to establish a direct and — it would appear —
automatic correlation between awareness of an opposition of views and the existence of a dispute.
He also points out that, in the Court’s reasoning, what is essential is the fact that the respondent
should “be aware”. Judge ad hoc Bedjaoui wonders if we are not thus witnessing the resurrection
by degrees of the “notification” concept.

However, if we accept the existence of this additional precondition, then why not apply it

correctly? Judge ad hoc Bedjaoui maintains that India had to be “aware” of the Marshall Islands’
anti-nuclear views in opposition to its own nuclear conduct, given, among other things, the history
of the Marshall Islands and its 2013 and 2014 statements made at international events which were
open to all. These statements were aimed at all States possessing nuclear weapons, without
distinction, as everyone knows, and they did not exclude India.

Finally, Judge ad hoc Bedjaoui asks: how can the Respondent’s level of “awareness” be
assessed? And how could this unusual excursion into subjectivity be reconciled with the stated

“objective” search for the existence of a dispute? - 29 -

IV. Date of the existence of a dispute

Judge ad hoc Bedjaoui is pleased that, in the present Judgment, the Court appears to follow
its traditional jurisprudence closely, according to which: “[i]n principle, the date for determining
the existence of a dispute is the date on which the application is submitted to the Court”.

However, in practice, the Court has refused, without convincing explanation, to take account
of the evidence which arose after the date on which the proceedings were instituted and which
attested to the existence of a dispute. In so doing, it establishes as an absolute dogma a solution
that runs counter to its traditional approach, which was characterized by great flexibility, as

reflected in its statement that the dispute must only “in principle” exist on the date that proceedings
are instituted.

V. Procedural defects

As regards reparable procedural defects, whether it is the applicant or the respondent,
whether it is a case of proceedings being instituted prematurely or of accessing the Court too early,

Judge ad hoc Bedjaoui notes that the Court has created sound jurisprudence which has stood the
test of time and demonstrated its flawless consistency over a period of almost 90 years. It is this
jurisprudence that the 2011 Judgment started to destroy, with the deathblow being delivered by the
Belgium v. Senegal case.

In the present proceedings, the Court has once again dispensed with its traditional
jurisprudence, despite the latter’s wisdom. Judge ad hoc Bedjaoui laments the fact that the

majority of the Court considered the Marshall Islands’ statements insufficient to crystallize the
existence of a legal dispute. All the Marshall Islands needs to do tomorrow is to send a simple
Note Verbale to the Respondent with a few lines expressing its opposition to the latter’s nuclear
policy, in order to be able to resubmit the then formalized dispute to the Court. It was neither
coherent nor judicious for the Court to focus on easily reparable procedural defects, when it has
long dealt with these with a welcome degree of flexibility.

VI. Proof by inference; proof by the interpretation of silence

Judge ad hoc Bedjaoui recalls that, contrary to the approach followed in this case, the Court
has on other occasions demonstrated flexibility and common sense, turning a respondent’s silence
or failure to respond to good account and even proceeding by simple deduction, in order to
conclude that a dispute exists.

In its present Judgment, the Court sweeps aside its traditional jurisprudence and takes the

view that the 13 February 2014 statement, in which the Marshall Islands accused States possessing
nuclear weapons of breaching their international obligations, “[g]iven its very general content and
the context in which it was made . . . did not call for a specific reaction by India”. And thus,
“[a]ccordingly, no opposition of views can be inferred from the absence of any such reaction”. The
Court seems to have ventured to substitute itself for India, in order to justify the latter’s silence in
its place and, moreover, with reasons that no one can be certain were shared by that State.

VII. Proof provided by the exchanges before the Court

Judge ad hoc Bedjaoui is of the opinion that the Court has made little effort in the present
case to take full account of the circumstances following the filing of the Marshall Islands’
Application, once again moving away from its traditional jurisprudence. - 30 -

He wonders how one can conclude that a dispute does not exist, when one Party is
complaining before the Court that the other has long been in breach of its international obligations,

and the other Party denies that its conduct constitutes a violation of those obligations. The
exchanges that took place before the Court did not create the dispute anew. They merely
“confirmed” its prior existence.

VIII. Sui generis nature of any nuclear dispute

Judge ad hoc Bedjaoui notes that the general historical background to the international

community’s efforts to bring about nuclear disarmament in itself foreshadows and signals the
potential existence of a dispute. Indeed, the dispute submitted by the Marshall Islands, which aims
at nothing short of protecting the human race from permanent annihilation by a terrifying weapon
of mass destruction, should in itself have sounded an alarm for the Court. The Court declared
20 years ago that a twofold obligation exists to negotiate and to achieve nuclear disarmament. For
20 years, it heard no more of that appeal. And then, one day, a non-nuclear State wishes to find out
from another State, one that possesses nuclear weapons, why this already considerable delay

appears to be continuing for even longer.

This particular type of highly specific disagreement between a non-nuclear State and a
nuclear State regarding the abolition of nuclear weapons is, in and of itself, the expression of a
major dispute whose existence should ipso facto have been obvious to the Court. Because what is
the Marshall Islands seeking? That the international community and the Court itself should know
why an obligation identified by the Court 20 years ago has yet to be performed.

IX. An objection not of an exclusively preliminary character?

Judge ad hoc Bedjaoui could perhaps have accepted, in a case as complex and important as
this one between the Marshall Islands and India, a decision which reflected the Court’s — after all
highly legitimate — concern to avoid ruling prematurely on jurisdiction and admissibility. The
Court might very well still require further clarification from the Parties. And knowing that, at this
stage, it could not evaluate their conduct without addressing the merits, the Court might logically

decide to wait for the merits stage before determining its position. In other words, the Court might
have been more prudent to find that the question of the existence of a dispute was not of an
exclusively preliminary character.

X. The train of undesirable consequences of this decision

Finally, Judge ad hoc Bedjaoui notes that the present decision has the unfortunate potential

to unleash whole train of undesirable consequences, not only for the Respondent, which could find
itself encouraged to withdraw its optional recognition of the Court’s jurisdiction, but also for the
Applicant, which has shouldered the cost of coming to the Court, as well as for the international
community and the Court itself.

As regards the international community, the decisions handed down by the Court today
reveal to international public opinion a world that is regrettably inconsistent, not only in terms of
procedural jurisprudence, but also in respect of its substantive jurisprudence. What message is the

Court leaving the international community when it decides, on what are exceedingly flimsy bases,
moreover, to decline to exercise its jurisdiction in cases concerning the most crucial issues of
nuclear disarmament, involving the very survival of the whole human race? - 31 -

As for the Court itself, it risks being the fourth losing party, because by dismissing the
Marshall Islands on the basis of a reparable procedural defect, it is undermining the sound

administration of justice, on which its functioning depends. In these three cases, the Court seems
to have been unable to break away from a formalism which sacrifices the merits to procedure,
content to form, and the case to its subject-matter. Moreover, even though the Court has always
declared that its aim is to give a fundamentally “objective” assessment of the evidence, it seems
here to have made little attempt to avoid being subjective in its assessment of the evidence put
forward by the Applicant, itself organizing the Respondent’s defence and examining all of the
Applicant’s arguments with what appears to be a negative prejudice.

___________