Written reply of the United Kingdom to the questions put by Judges Cançado Trindade and Greenwood at the public sitting held on the afternoon of 16 March 2016

Foreign &
laiMacleod
commonwealth Thea...1Aèlviser
E21GS
office Kinga-se. Street
LondonswtA 2AH

23.Mardi 2016 Tel:02f7Œ83061
www.giW.ukirlxl4

H.E.Mf. PhilippeCouvreur
Règjstrar
lrttemationCourt ofJustice
PftcePal~

2517 KJ The Hague

YourExoellency,

Obllptlona concern:ingNegotlatloM ,.latlng to Ces.sJtionof the Nudear Anna Race
.and to Nuclear Dlaat:mtnent (Republlc ofMarshall·Islandsv. Urilte.dKfngdom)

1have·thehonour to refer to your letteof 16 March 20.16 transmittlngthe questions
addre&s.edby Judge. Csnçado Trindade to both Parties and Judge Greenwood to the
UnitttdKfngdomat theend ofthe publicsittingthday:

1 further have tf.1honour to enctoae the written replyof the Govemment of the
Ui\lted.Kingdoof Great.BritaiandNor.themlrelandtothosequestionswfthrnthedead&r,e
requested. ·

Ac:Œp .tirthe assutanŒsofmyhfgl'res ton$fderat1·.on

fainMacleod
.A;èntoftheUnitedKingdomofGreatBritainandNorthemfrelandbefore the International
COlB 'f.Justice .. .

cc:Ms:catherineAdams
DeputyAg.,.,tofthe.UnitedKingdomofGreatBritainandNorthemfrelandbeforethe
lntemationalCourtof Justice ·

cc: Mr.Shehzad Charania
Deputy Agentofthe UnitedKlngdomofGreatBritainandNorthemlrelandbeforethe
InternationalCourof Justice
The Hague

1 INTERNATIONAL COURT OF JUSTICE

OBLIGATIONS CONCERNING NEGOTIATIONS RELATING TO CESSATION OF THE

NUCLEAR ARMS RACE AND TO NUCLEAR DISARMAMENT (MARSHALL ISLANDS v.
UNITED KINGDOM)

Written Reply of the United Kingdom of Great Britain and Northern freland to Questions

from Judges Cançado Trindade and Greenwood

23 Marcl1 2016

Question from Judge Cancado Trindade: "The Marshall Islands, in the course of the written
submissions and oral arguments, and the United Kingdom, in its document on Preliminary
Objections (of 15 June 2015), have both referred to U.N. General Assembly resolutions on

nuclear disarmament. Parallel to the resolutions on the matter which go back to the early 70's
(First Disarmament Decade), there have been two more recent series of General Assembly
resolutions, namely: those condemning nuclear weapons, extending from 1982 to date, and those

adopted as a follow-up to the 1996 I.C.J. Advisory Opinion on Nuclear Weapons, extending so
far from 1997 to 2015. ln relation to this last series of General Assembly resolutions,- referred
to by the contending Parties, - 1 would like to ask both the Marshall Islands and the United

Kingdom whether, in their understanding, such General Assembly resolutions are constitutive of
an expression of opinio juris, and, if so, what in their view is their relevance to the formation of a
customary international law obligation to pursue negotiations leading to nuclear disarmament,

and what is their incidence upon the question of the existence of a dispute between the Parties.

Response

1. The United Kingdom agrees with Draft Conclusion 13 of the Special Rapporteur of the
International Law Commission on the identification of custom. Draft Conclusion 13 reads as
follows:

"Resolutions of international organizations and conferences

Resolutions adopted by international organizations or at international conferences may, in
sorne circumstances, be evidence of customary international law or contribute to its
development; they cannat, in and ofthemselves, constitute it."

2. As explained by the Special Rapporteur, whether a particular resolution or a series of
resolutions is evidence of custom will depend on the assessment of wide range of factors and

circumstances.

3. The United Kingdom has not found the need to conduct any such assessment of the

resolutions of the General Assembly adopted as a follow-up to the 1996 advisory opinion of the
Court on the Legality of the Use of Threat to UseNuclear Weapons and considers that any such
assessment and conclusion, whatever it may be, would have no bearing on the existence of a

dispute between the Parties to the present proceedings given that the obligations to pursue
negotiations leading to nuclear disarmament in Article VI of the NPT have been binding upon the

1
Michael Wood, Special Rapporteur, Third report on identification of customary international law,
2/CN.4/682, 27 March 2015, at p. 41, paragraph 54; http://legal.un.org/docs/?symboi=A/CN.4/682
Id.,at paragraphs 45 to 53. Parties as of the date of the accession of the Marshall Islands to the NPT on 30 January 1995, i.e.,
before the 1996 advisory opinion. This isaccepted by the Marshall Islands, viz: "Since the UK
and the RMI are both parties to the NPT, the obligation set forth in Article VI of the NPT applies
3
lo them irrespective ofwhether that obligation corresponds to customary internationallaw."

***

Question from Judge Grecnwood: "During the course of its response this afternoon to Judge
Bennouna's question, the Marshall Islands referred to certain documents not previously put
before the Court. Does the United Kingdom consider that these documents bear upon the

existence of a dispute, in the sense in which that term is used in the jurisprudence of the Court?"

Response

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1. ln response to Judge Bennouna 's question, the Marshall Islands contends that at the time
offiling its Application, the Marshall Islands:

(a) understood the interpretation of Article VI to be that set out in the Court's advisory
opinion of 8 July 1996;

(b) believed that each of the nuclear-weapon States, including the United Kingdom, was in
continuing breach of the obligations under Article VI; and

(c) believed that ali States possessing nuclear weapons were in breach of a parallel obligation

in customary international law.

2. The Marshall Islands cited seven documents as evidence of their contention that they had

expressly or impliedly adopted the above position.

3. Amongst these seven documents are the statement by the Marshall Islands' Minister for

Foreign Affairs at the UN General Assembly High-Level Meeting on Nuclear Disarmament dated
26 September 2013 and the Marshall Islands' statement at the Nayarit Conference in February
20I4. For the reasons set out in the United Kingdom's written and oral submissions, these
statements do not evidence the existence of a dispute between the Marshall Islands and the United

Kingdom prior to 24 April2014.

4. As regards the five additionai documents adduced by the Marshall Islands in its oral

rejoinder in support of its contention, the United Kingdom does not accept that any of these new
documents establishes the existence of a dispute between the Marshall Islands and the United
Kingdom. In particular:

(a) The Message from HE Christopher J Loeak, President of the Marshall Islands was
manifestly not addressed to the United Kingdom, nor does the Marshall Islands suggest
that it was, at any stage prior to 24 April 2014. Indeed, the United Kingdom was unaware

of this Message until it was brought to the United Kingdom's, and the Court's, attention
during the course of the hearing. Furthermore, this Message states only that the President
stands with the Hiroshima Youth Committee "to reinforce the views that have been

expressed by representatives of over 140 countries in concluding a nuclear-weapons
convention." This statement cannot be taken as any express or implied representation that

3
4Memorialofthe MarshallIslands,at paragraph189.
CR2016/9,pp. 8-11.

2 the United Kingdom (or indeed any other State) is in breach of its obligations under
Article VI of the NPT and/or any parallel rule of customary international law.

(b) The Joint Statement on the Humanitarian Consequences ofNuclear Weapons, made in the
First Committee on 21 October 2013 states that: "Ali States share the responsibility to
prevent the use of nuclear weapons, to prevent their vertical and horizontal proliferation
and to achieve nuclear disarmament, including through fulfilling the objectives of the

NPT and achieving its universality." Again, this statement contains no express or implied
representation that the United Kingdom (or indeed any other State) is in breach of its
obligations under Article VI of the NPT and/or any parallel rule of customary
international law.

(c) The three General Assembly Resolutions dated 5 December 2013, inter a/ia,reiterate the
obligation upon States to pursue and bring to a conclusion negotiations leading to nuclear

disarmament and cali upon States to comply with that obligation. They contain no
express or implied representation that the United Kingdom (or indeed any other State) is
in breach of Article VI or any parallel obligation under customary international law.
Moreover, the fact that the Marshall Islands voted in favour ofthese resolutions whilst the

United Kingdom (along with many other States) did not do so, cannot be taken as
indicating the existence of a dispute between the Marshall Islands and the United
Kingdom in relation to the interpretation or application ofthat obligation. As is typically

the case, these resolutions are complex and multi-faceted. The preambular and operative
paragraphs of the resolutions address a number of detailed issues. States may agree with
sorne paragraphs but not ali. A State's decision to vote for or against a resolution is based
on a variety of political and legal factors. lt cannot be assumed that, because one State

votes for a resolution and another votes against, a dispute exists between them.

5. In summary, the United Kingdom does not consider that any of the documents put
forward by the Marshall Islands in response to Judge Bennouna's question evidences that:

(a) there existed, on or before 24 April 2014, a claim by the Marshall Islands against the
United Kingdom which was actively opposed by the United Kingdom; and/or

(b) there was any exchange or communication ofviews between the Marshall Islands and the
United Kingdom which was sufficient to crystallise a dispute on or before 24 April2014.

6. Accordingly, the United Kingdom does not consider that any of the documents put
forward by the Marshall Islands in answer to Judge Bennouna's question has any bearing on the
question whether a dispute existed between the United Kingdom and the Marshall Islands on 24

April2014.

3