Comments of the United Kingdom on the written reply of the Marshall Islands to the questions put by Judge Cançado Trindade at the public sitting held on the afternoon of 16 March 2016

BritishEmbassy Shehzad Charanla
LegalAdviser- Headof InternationalLawTeam
TheHague BritishEmbassy
LangeVoorhout10
2514ED The Hague
TheNetherlands

Email:[email protected]
Tel:+31(0)704270474
www.gov.uk/govemment/wond/nelherlands

30 March 2016

H.E. Mr Philippe Couvreur
Reglstrar
InternationalCourt of Justice

PeacePalace
2517 KJThe Hague

Your Excellency,

Obligations concernlng Negotiations relating to Cessation of the Nuclear Arms Raceand to Nuclear
Dlsarmament (Repubile of Marshall Islands v. United Klngdom)

1have the honour to refer to your letter of 23 March 2016, whereby you transmitted a copy of the

answer of the Republic of the Marshall Islands to the questions addressed by Judge Cançado
Trindade to both Parties at the end of the public sitting held on 16 March 2016 at 3pm.

1further have the honour to enclose the written response of the Government of the United Kingdom

of Great Britain and Northern lreland to the Marshall IslandsAnswer to the Question from Judge
CançadoTrindade within the requested deadline.

Accept, Sir, the assurance of my highest consideration.

ShehzadCharania

Deputy Agent of the United Kingdom of Great Britain and Northern lreland before the International
Court of Justice

The Hague

cc: Mr. lain Macleod

Agent of the United Kingdom of Great Britain and Northern lreland before the International

Court of Justice

cc: Ms. Catherine Adams
Deputy Agent of the United Kingdom of Great Britain and Northern lreland before the

International Court of Justice INTERNATIONAL COURT OF JUSTICE

OBLIGATlONS CONCERNING NEGOTIATIONS RELATING TO CESSATION
OF THE NUCLEAR ARMS RACE AND TO NUCLEAR DISARMAMENT

(MARSHALLISLANDS v. UNITEDKJNGDOM)

United Kingdom Response to the Marshall Islands Answer

to the Question from Judge Cançado Trindade

1. At paragraph9 of its Answer to Judge Trindade'sQuestion,the Marshall Islands

assertsthat:

a. The United Kingdom has consistently voted against three series of UN
General Assembly resolutions relating to the obligation recognised in the

Advisory Opinion and/or1the commencement of multilateral negotiations
for nucleardisarmament;
b. By voting against these resolutions, the United Kingdom has confirmed
that it ignoresthe Threat or Use of Nuclear Weapons advisoryopinionand
"gives a different interpretation"to the prescriptions of Article VI of the

NPTand thecorrespondingruleof customaryinternationallaw;
c. The Marshall Islandshas voted in favourof these resolutions;and
d. The diverging voting patterns of the two States are a clear indication of
theiropposing views.

2. ln the palpableabsence of any other evidence to show an exchange or negotiation
between the conlenders, the Marshall Islands now asserts that diverging voting
patternsof the Marshall Islandsand the UnitedKingdomis sufficientto crystallise
a dispute between the Parties in relation to the requirementsof Article VI. This

contention is manifestlyunsustainable,bothin factand in law.

3. On the facts, the Marshall Islands voting record on the resolutions on which it
nowseeks to rely isat best highlyambiguous:

a. ln relationto the resolutionon the Follow-Upto the AdvisoryOpinion,the
Marshall Islands voted in favour of the resolution from 1997 to 2000,
against in 2003, in favour of the resolution in 2004, and abstained from
voting in 2005 to 2012;

b. In relation to the resolutionon Nuclear Disarmament,the MarshallIslands
voted againstthe resolution in 2003, in favour of the resolution in 2004,
voted against the resolution from 2005 to 2007, and abstained from voting

in 2008 to 2012.

1The resolutionson (i) Follow-Upto the AdvisoryOpinion;(ii) Nuclenr Disarmament;and (iii)
Follow-Uptothe2013High·LevelMeeting.4. The fact that the United Kingdomvoted against these resolutionscannot in any
way be interpreted as an indication that the United Kingdom has a different
interpretationof the requirementsof Article VI of the NPT. As stated in the
UnitedKingdom'sresponse toJudgeGreenwood'sQuestion,theseresolutionsare
detailed and cover a number of issues in both their preambular and operative

paragraphs. The fact that the United Kingdom was not able to support the
resolutionsin the form that they were adopted is not an indicationof the United
Kingdom's viewson the interpretationor applicationof ArticleVIof theNPT. lt
is an indicationof the UnitedKingdom's viewson the packageof statementsand
provisionsaddressedintheresolutiontakenasa whole.

5. On the law,as the UnitedKingdomnotedin itsoralsubmissions,theCourt'scase
law inGeorgia v. Russia and Belgium v. Senegal makes itclearthat, fora dispute
tocrystallise,there musthavebeenajuxtapositionofviews betweenthe partiesin

their engagement inter se. This requirementis reflected also in the most recent
judgment of the Court on 17 March 2016 in the case Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia) where, at paragraph73 of the judgment, the Court made it clear that
whathad causedthe disputeto crystallisewas that "Colombiawasaware" that its
legislativeenactment and conduct "were positivelyopposed by Nicaragua",and
that, given the public statements of the parties, "Colombia could not have
misunderstoodthepositionofNicaraguaoversuchdifferences".

6. Ambiguousvoting patterns for complex, non-bindingresolutionsnegotiatedand
adopted in multilateral settings can in no way serve to crystallise a dispute
between the Marshall Islands and the United Kingdom. Even now, the United
Kingdomfinds it impossibleto discern the detail of the Marshall Islands views
fromtheirvotingrecordfortheresolutionson whichthey nowseek torely.

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