COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFÉREND FRONTALIER
(BURKINA FASO/RÉPUBLIQUE DU MALI)

ORDONNANCE DU 9 AVRIL 1987

DESIGNATION D’EXPERTS

1987

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE FRONTIER DISPUTE
(BURKINA FASO/REPUBLIC OF MALI)

ORDER OF 9 APRIL 1987
NOMINATION OF EXPERTS
Mode officiel de citation :

Différend frontalier,
désignation d'experts, ordonnance du 9 avril 1987,
C.LJ. Recueil 1987, p. 7.

Official citation :

Frontier Dispute,
Nomination of Experts, Order of 9 April 1987,
I.C.J. Reports 1987, p. 7.

N° de vente : 5 2 7
Sales number

1987
9 avril
Rôle général
n° 69

COUR INTERNATIONALE DE JUSTICE
ANNÉE 1987

9 avril 1987

AFFAIRE DU DIFFÉREND FRONTALIER

(BURKINA FASO/RÉPUBLIQUE DU MALI)

ORDONNANCE
DESIGNATION D’EXPERTS

Présents: M. BEDJAOUI, président de la Chambre; MM. Lacus, Rupa,
juges; MM. LUCHAIRE, ABI-SAAB, juges ad hoc; M. VALENCIA-
OsPINA, Greffier.

La Chambre constituée par la Cour internationale de Justice pour
connaitre de l’affaire susmentionnée,

Ainsi composée,
Après délibéré,
Vu l'article 48 du Statut de la Cour,

Rend l'ordonnance suivante:

Vu l’article IV du compromis conclu entre les Parties le 16 sep-
tembre 1983 en vue de la soumission de leur différend frontalier à une
chambre de la Cour, disposition par laquelle les Parties sont convenues de
procéder dans l’année suivant l'arrêt de la Chambre à la démarcation de
leur frontière commune dans la zone contestée et de prier la Chambre « de
désigner dans son arrêt trois experts qui les assisteront aux fins de l’opéra-
tion de démarcation »,

Vu l'arrêt rendu par la Chambre le 22 décembre 1986, au para-
graphe 176 duquel la Chambre s’est exprimée comme suit:

«La Chambre est prête à accepter la mission que les Parties lui ont
ainsi confiée. Toutefois, eu égard aux circonstances de la présente
espèce, la Chambre est d’avis qu’il n’y a pas lieu de procéder pour
l'instant à la désignation sollicitée par les Parties. Elle y procédera
plus tard, par voie d'ordonnance, après s’être informée des vues des
Parties, notamment en ce qui concerne les aspects pratiques de
l'exercice par les experts de leurs fonctions»,
8 DIFFÉREND FRONTALIER (ORDONNANCE 9 IV 87)

Considérant que ce que les Parties demandent à la Chambre n’est pas
d’ordonner une expertise au sens de l’article 50 du Statut de la Cour, dont
le but serait « d’aider la Cour à se prononcer sur les questions qu’elle est
appelée à trancher » (Demande en revision et en interprétation de l'arrêt du
24 février 1982 en l'affaire du Plateau continental (Tunisie/Jamahiriya
arabe libyenne) (Tunisie c. Jamahiriya arabe libyenne), C.I.JT. Recueil 1985,
p. 228, par. 65) et dont le coût serait, le cas échéant, supporté par la Cour
conformément à l’article 68 de son Règlement, mais d'exercer un pouvoir
qui lui est conféré par le compromis, celui de désigner trois personnes
auxquelles les Parties elles-mêmes ont décidé de confier une expertise en
vue de la mise en œuvre de l’arrêt de la Chambre;

Considérant que rien dans le Statut de la Cour ni dans la jurisprudence
établie ne s’oppose à ce que la Chambre exerce ce pouvoir, dont le but est
précisément de permettre aux Parties de parvenir à un règlement définitif
de leur différend en application de l’arrêt qu’elle a rendu;

LA CHAMBRE

1. Désigne, conformément à l’article IV, paragraphe 3, du compromis,
les trois experts suivants qui assisteront les Parties aux fins de l’opération
de démarcation de leur frontière dans la zone contestée :

M. Gilbert Mangin, de nationalité française, conseiller à la Cour de cas-
sation de France;

M. Zaki Belcaïd, de nationalité algérienne, ingénieur des travaux géo-
graphiques et cartographiques de l'Etat (Ecole nationale des sciences
géographiques de Paris);

M. Petrus Richardus, de nationalité néerlandaise, expert consultant en
géodésie, ancien directeur scientifique à l’Université agronomique de
Wageningen (Pays-Bas).

2. Autoriseson président, au cas où il se produirait une vacance au sein
du groupe des trois experts ainsi nommés, à désigner un suppléant pour
effectuer ou achever l’opération de démarcation.

Fait en français et en anglais, le texte français faisant foi, au palais de la
Paix, à La Haye, le neuf avril mil neuf cent quatre-vingt-sept, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et les
autres seront transmis respectivement au Gouvernement du Burkina Faso
et au Gouvernement de la République du Mali.

| Le président de la Chambre,
(Signé) Mohammed BEDJAOUI.

Le Greffier,
{Signé) Eduardo VALENCIA-OSPINA.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 12 AVRIL 1967

1967

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 12 APRIL 1967
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
ordonnance du 12 avril 1967, C.I.J. Recueil 1967, p. 9.

Official citation:

Barcelona Traction, Light and Power Company, Limired,
Order of 12 April 1967, I.C.J. Reports 1967, p. 9.

Sales ummber OL À

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1967
1967
12 avril 12 avril 1967
Rôle général
n° 50

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE

Présents: M. BUSTAMANTE Y RIVERO, Président; M. KORETSKY, Vice-
Président; sir Gerald FITZMAURICE, MM. TANAKA, JESSUP,
MORELLI, PADILLA NERVO, FORSTER, GROS, AMMOUN, BENGZON,
PETREN, LACHS, ONYEAMA, juges; M. AQUARONE, Greffier.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,

Vu l’article 48 du Statut de la Cour et l’article 37 du Règlement de la
Cour,

Rend l'ordonnance suivante:

Vu l’ordonnance du 23 novembre 1966 reportant au 24 avril 1967 et
au 2 octobre 1967 respectivement la date d’expiration des délais pour le
dépôt de la réplique du Gouvernement belge et de la duplique du Gou-
vernement espagnol;

4
10 BARCELONA TRACTION (ORDONNANCE 12 IV 67)

Considérant que, par lettre du 6 avril 1967, l’agent du Gouvernement
belge a, pour les raisons par lui indiquées, demandé le report au 15 mai
1967 de la date d’expiration du délai pour le dépôt de la réplique;

Considérant que le 7 avril 1967 copie certifiée conforme de ladite
lettre a été communiquée à l’agent du Gouvernement espagnol, qui a été
invité à faire connaître les vues de son gouvernement à cet égard;

Considérant que, par lettre du 11 avril 1967, l’agent du Gouvernement
espagnol] a fait connaître que son gouvernement ne soulève pas d’objec-
tion et laisse entièrement à l’appréciation de la Cour la suite à donner
à la requête du Gouvernement belge,

La Cour,
S’étant renseignée auprés des Parties,

Reporte au 16 mai 1967 la date d’expiration du délai fixé pour le dépôt
de la réplique du Gouvernement belge, et en conséquence au 24 octobre
1967 la date d’expiration du délai fixé pour le dépôt de la duplique du
Gouvernement espagnol.

Fait en français et en anglais, le texte français faisant foi, au palais
de la Paix, à La Haye, le douze avril mil neuf cent soixante-sept, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement belge et au
Gouvernement espagnol.

Le Président,
(Signé) J. L. BUSTAMANTE R.

Le Greffier,
(Signé) S. AQUARONE.


469

            SEPARATE OPINION OF JUDGE BHANDARI

   Concur with the conclusions of the majority — Existence of a dispute is central
to the exercise of the Court’s jurisdiction — On the basis of documents and
pleadings of the Parties, no dispute existed — International Court of Justice lacks
jurisdiction — Greater emphasis ought to have been given that no dispute existed
and lesser on the Respondent’s awareness — Other preliminary objections ought to
have been adjudicated in the facts of this case — Monetary Gold principle —
Judgment will have no concrete effect — Respondent’s reservation — Dispute
relating to situation of hostilities or self-defence — The Applicant accepted
International Court of Justice’s jurisdiction for this case only — Interpretation or
application of multilateral treaties.

   1. I concur with the conclusions of the majority Judgment upholding
the objection to jurisdiction raised by India based on the absence of a
dispute. However, I wish to append a separate opinion to expand the
basis of the reasoning of the Judgment. I also propose to deal with
another aspect of this case, 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. Additionally, adjudicating these objections would have
further crystallized the controversy involved in the case, particularly when
all documents, pleadings and submissions were placed on record
in extenso.

   2. The question, which needs to be decided, is whether from the docu-
ments, pleadings and the conduct of the Parties it can be established that
a dispute existed between them at the time of ﬁling the Application in the
terms prescribed by the applicable legal instruments and the Court’s juris-
prudence.
   3. Under Article 36, paragraph 2, and Article 38, paragraph 1, of the
Statute of the Court, it can only exercise its jurisdiction in case of a dis-
pute between the parties. The concept of “dispute”, and more speciﬁcally
“legal dispute”, is thus central to the exercise of the Court’s jurisdiction.
The majority Judgment acknowledges this and reﬂects on certain key
aspects from the Court’s jurisprudence on this concept.

   4. Any analysis of the existence of a dispute should start with a deﬁni-
tion of the term “dispute”. Black’s Law Dictionary oﬀers the following
deﬁnitions, which may help in guiding the analysis:
         “Dispute: A conﬂict or controversy; a conﬂict of claims or rights;
      an assertion of a right, claim, or demand on one side, met by contrary
      claims or allegations on the other.”

218

470        nuclear arms and disarmament (sep. op. bhandari)

          “Legal dispute: Contest/conﬂict/disagreement concerning lawful
       existence of (1) a duty or right, or (2) compensation by extent or type,
       claimed by the injured party for a breach of such duty or right.”

   5. Mr. Harish Salve, appearing for the Respondent, submitted that in
absence of a dispute this Court has no jurisdiction to deal with this case.
He further submitted that on the basis of documents and pleadings of the
Parties there is no legal dispute between them. Reliance has been placed
by him on the Judgment of this Court in the South West Africa cases. The
relevant passage is reproduced below:
          “The subject-matter of the dispute is a disagreement between the
       States on a point of law or fact. Whether there is a dispute, and if so,
       what the dispute is, is a matter for objective determination by the
       Court. In the South West Africa cases, this Court held that it has to
       assess whether ‘the claim of one party is positively opposed by the
       other’. It is the claim and not the legal submissions in support of the
       claim which would delineate the contours of the dispute.” 1

  6. Mr. Salve also placed reliance on the Fisheries Jurisdiction (Spain v.
Canada) case as follows:
          “[T]his Court referred to Article 40 (1) of the Statute and Arti-
       cle 38 (2) of the Rules — provisions which have been characterized
       as essential from the point of view of legal security and the good
       administration of justice — and came to the conclusion that there may
       be uncertainties with regard to the real subject-matter of the dispute,
       and the Court must for its objective evaluation give ‘particular atten-
       tion to the formulation of the dispute chosen by the Applicant’.” 2

  7. Mr. Alain Pellet, also appearing for the Respondent India, submit-
ted that the condition for the exercise of jurisdiction of this Court is that
there must a dispute between the Parties. He cited the Nuclear Tests cases.
The relevant passage is reproduced below:
         “The Court, as a court of law, is called upon to resolve existing
       disputes between States. Thus the existence of a dispute is the primary
       condition for the Court to exercise its judicial function; it is not suf-
       ﬁcient for one party to assert that there is a dispute, since ‘whether
       there exists an international dispute is a matter for objective determi-
       nation’ by the Court.” 3
   1  CR 2016/4, p. 27, para. 42.
   2  Ibid., p. 43, original emphasis, quoting Fisheries Jurisdiction (Spain v. Canada), Juris-
diction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 30.
   3 Ibid., pp. 37-38, para. 3, quoting Nuclear Tests (Australia v. France), Judgment,

I.C.J. Reports 1974, pp. 270-271, para. 55; Nuclear Tests (New Zealand v. France), Judg-

219

471        nuclear arms and disarmament (sep. op. bhandari)

  8. Mr. Pellet also relied on the following passage of the South West
Africa cases of the Court:
         “In other words it is not suﬃcient for one party to a contentious
      case to assert that a dispute exists with the other party. A mere asser-
      tion is not suﬃcient to prove the existence of a dispute any more than
      a mere denial of the existence of the dispute proves its non-existence.
      Nor is it adequate to show that the interests of the two parties to such
      a case are in conﬂict. It must be shown that the claim of one party is
      positively opposed by the other.” 4

  9. In Georgia v. Russia, in determining whether a legal dispute existed
between the Parties at the time of the ﬁling of the Application, the Court
undertook a detailed review of the relevant diplomatic exchanges, docu-
ments and statements. The Court has carried out an extensive analysis of
the evidence, covering numerous instances of oﬃcial Georgian and
Russian practice from 1992 to 2008. The Court found that most of the
documents and statements before it failed to evidence the existence of a
dispute, because they did not contain any “direct criticism” against
the Respondent, did not amount to an “allegation” against the Respon-
dent or were not otherwise of a character that was suﬃcient to found a
justiciable dispute between the parties, and in this case the Court also
held that it is a matter of substance and not a question of form or proce-
dure (Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 84-91,
paras. 30-46).

  10. In Belgium v. Senegal, the Court similarly carried out a systematic
review of the diplomatic exchanges that had preceded the ﬁling of the
Application in order to ascertain if the dispute had been properly notiﬁed
to Senegal. The Court, in that case, concluded that at the time of the ﬁl-
ing of the Application, the dispute between the parties did not relate to
breaches of obligation under customary international law and that it had
thus no jurisdiction to decide Belgium’s claims (Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), pp. 433-435, paras. 24-26).

  11. In another important case, Mavrommatis Palestine Concessions,
the Court considered that a dispute is “a disagreement on a point of law
or fact, a conﬂict of legal views or of interests” between parties (Mavrom-

ment, I.C.J. Reports 1974, p. 476, para. 58, and quoting Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950,
p. 74.
   4 Ibid., p. 38, para. 4, quoting South West Africa (Ethiopia v. South Africa; Liberia v.

South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.

220

472       nuclear arms and disarmament (sep. op. bhandari)

matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
No. 2, p. 11).

  12. It would be appropriate to recapitulate the documents, pleadings
and submissions of the Parties to determine whether a dispute in fact
existed between the Parties at the time of the ﬁling of the Application.
  13. The Marshall Islands’ own submissions in its Application and during
the oral proceedings. At paragraphs 35 to 37 of its Application, the
Republic of the Marshall Islands (hereinafter “RMI”) summarizes its
own understanding of India’s conduct with regard to nuclear disarma-
ment. They are reproduced for the beneﬁt of the reader, verbatim as to
show the unambiguous character of the Applicant’s description:

         “India has consistently voted for the General Assembly resolution
      welcoming the Court’s conclusion regarding the disarmament obliga-
      tion. India states that it has never contributed to the spread of sensi-
      tive technologies. It adds that it is updating regulations relating to
      export controls and taking measures to strengthen nuclear security in
      accord with international eﬀorts to prevent the acquisition of nuclear
      weapons by non-state actors and additional States.

         India supports the commencement of negotiations on complete
      nuclear disarmament in the Conference on Disarmament [(CD)]. It
      also votes for United National General Assembly resolutions calling
      for negotiation of a Nuclear Weapons Convention, including
      ‘Follow-up to the Advisory Opinion of the International Court of
      Justice on the Legality of the Threat or Use of Nuclear Weapons’,
      and a resolution newly oﬀered in 2013 following up on the High-
      Level Meeting on Nuclear Disarmament. The latter resolution calls
      for ‘the urgent commencement of negotiations, in the Conference on
      Disarmament, for the early conclusion of a comprehensive conven-
      tion’ to prohibit and eliminate nuclear weapons. India abstained on
      the 2012 resolution establishing an Open-Ended Working Group to
      take forward proposals for multilateral nuclear disarmament negoti-
      ations, but subsequently participated in the Working Group.

        The ﬁrst-ever United Nations General Assembly High-Level Meet-
      ing on Nuclear Disarmament, referenced in the preceding paragraph,
      was held on 26 September 2013, pursuant to a 2012 resolution which
      was supported by India. At that meeting, Salman Khurshid, Minister
      of External Aﬀairs of India, placed India’s support for nuclear disar-
      mament in the context of the 1988 Rajiv Gandhi ‘Action Plan for a
      nuclear weapon free and non-violent world order’. He stated that

221

473       nuclear arms and disarmament (sep. op. bhandari)

      India has a ‘posture of no-ﬁrst use’, maintained that India ‘refuse[s]
      to participate in an arms race, including a nuclear arms race’, and
      noted that India’s ‘proposal for a Convention banning the use of
      nuclear weapons remains on the table’.” 5

  14. The Marshall Islands recognized in its submissions and oral pro-
ceedings that India’s conduct is in fact pro-disarmament and that it has
repeatedly and publicly stated so. The Agent of the Applicant submitted
on the Respondent’s conduct prior to the Application:

         “I submit to you the following: ‘The production of weapons which
      have the capacity to destroy all mankind cannot in any manner be
      considered to be justiﬁed or permitted under international law.’ That
      quote . . ., while entirely endorsed by the Marshall Islands, is a quote
      from India, and speciﬁcally from India’s submission to this very
      Court — the International Court of Justice — on 20 June 1995, in
      the Legality of Threat or Use of Nuclear Weapons proceedings.

         While the lawyers here will today address India’s claims regarding
      jurisdiction, I wish to respectfully add here certain additional facts
      that I trust will be helpful to this Court. Speciﬁcally, India also agreed
      in its oﬃcial 1995 Statement that nuclear weapons could not be pro-
      duced for deterrence purposes because deterrence is ‘abhorrent to
      human sentiment’ and ‘disarmament must be given priority and has
      to take precedence over deterrence’

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         The Marshall Islands oﬃcially and publicly declared in Febru-
      ary 2014 at the Conference on the Humanitarian Impact of Nuclear
      Weapons in Mexico, that the States possessing nuclear arsenals are

   5 Application of the Marshall Islands (AMI), paras. 35-37, citing A/RES/68/42,

5 December 2013; Statement of India’s Prime Minister Manmohan Singh at Seoul
Nuclear Security Summit, 27 March 2012, http://www.mea.gov.in/Speeches-
Statements.htm?dtl/19078/; Nuclear Security Summit National Progress Report,
27 March 2012, http://www.mea.gov.in/bilateral-documents.htm?dtl/19074/; Statement
by H.E. Mr. Salman Khurshid, Minister of External Aﬀairs of India, at the High-Level
Meeting of the General Assembly on Nuclear Disarmament, 68th United Nations General
Assembly in New York, 26 September 2013, http://www.un.org/en/ga/68/meetings/
nucleardisarmament/pdf/IN_en.pdf; A/RES/68/42, 5 December 2013; A/RES/68/32,
5 December 2013; A/RES/67/56, 3 December 2012; UN doc. A/67/PV 48, pp. 20-21; A/
RES/67/39, 3 December 2012.

222

474       nuclear arms and disarmament (sep. op. bhandari)

      failing to fulﬁl their legal obligations under customary international
      law. An oﬃcial delegation from India attended this Conference, and
      it is without question that India is a State possessing a nuclear arsenal.
      India’s statement to this February 2014 Conference included the fol-
      lowing conﬁrmation:
           ‘We cannot accept the logic that a few nations have the right to
         pursue their security by threatening the survival of mankind. It is
         not only those who live by the nuclear sword who, by design or
         default, shall one day perish by it. All humanity will perish’.” 6

  15. The Applicant acknowledges that in response to its alleged one
instance where it formulated its claim, such claim was not met with resis-
tance from the Respondent. On the contrary, India supported, as it has
done continuously since the days before its independence, the call for
nuclear disarmament. This support, in fact, has taken the form of con-
crete steps and actions at the appropriate international fora, notably the
General Assembly and the Committee on Disarmament. The Court’s
1996 Advisory Opinion on nuclear weapons clearly established that the
obligation to negotiate towards nuclear disarmament is an obligation of
result and not one of means. It thus requires concrete steps from the
members of the international community. Such concrete steps on the part
of India are referenced in detail in the Annexes to the Counter-Memorial
ﬁled by the Respondent.
  16. The Minister of External Aﬀairs of India stated before the General
Assembly of the United Nations in 2013 that even prior to the indepen-
dence,
      “from the days of [the] freedom struggle [. . .] [India] has been con-
      sistent in [its] support for the global elimination of all weapons of
      mass destruction. Mahatma Gandhi, the Father of [the] nation, was
      moved by the tragedy of Hiroshima and Nagasaki [when nuclear
      weapons were used for the ﬁrst time in 1945]. He wrote that he
      regarded the employment of the atom bomb for the wholesale destruc-
      tion of men, women and children as the most diabolical use of
      science.” 7
  17. This stance has remained unchanged until today, regardless of the
diﬀerent parties and politicians who have at turns ruled and represented
the country.
  18. It was submitted that India is fully committed to the goal of a
nuclear-weapon-free world through globally veriﬁable and non-discrimi-

  6 CR 2016/1, pp. 18-19, paras. 11, 12 and 14.
  7 Statement by Salman Khurshid, Minister of External Aﬀairs of India, at the
High-Level Meeting of the General Assembly on Nuclear Disarmament, 68th United
Nations General Assembly in New York, 26 September 2013; Counter-Memorial of India
(CMI), Annex 6.

223

475         nuclear arms and disarmament (sep. op. bhandari)

natory nuclear disarmament. The Co-Agent of India, Mr. Gill, submitted
that India’s stand is that all States must work together for global, non-
discriminatory and veriﬁable nuclear disarmament. He also submitted
that India needs a step-by-step process underwritten by a universal com-
mitment of all States and agreed global and non-discriminatory multi-
lateral framework. He further submitted that India is committed to a
credible minimum deterrent, no-ﬁrst use and non-use against non-
nuclear weapons States, such as the Marshall Islands.

   19. India’s ﬁrst Prime Minister, Jawaharlal Nehru, who after India’s
independence was among the ﬁrst world leaders to raise concern of the
use of nuclear weapons, called for negotiations for the prohibition and
elimination of nuclear weapons. On 2 April 1954 he said in the Indian
Parliament, and I quote from his speech: “We know that its use threatens
the existence of man and civilization” (statement made by Prime Minister
Jawaharlal Nehru in Lok Sabha (Lower House of the Indian Parliament),
2 April 1954, Annex 3 to the Counter-Memorial of India).
   20. India’s Co-Agent, Mr. Gill, submitted that
      “[i]t was on the combined urging of India and Canada in 1961 that
      the Soviet Union and the United States became co-chairs of the ﬁrst
      standing negotiation forum on nuclear disarmament — the Eighteen
      Nation Disarmament Committee, precursor to the CD of today.” 8

  21. Mr. Gill further addressed the Court in the following terms:
        “India’s nuclear programme is one of the oldest in the world and
      India’s was the ﬁrst reactor to go critical in Asia in 1956. Apart from
      the four then nuclear-weapon States, India was the only country in
      1965 with a chemical reprocessing plant that could separate signiﬁ-
      cant quantities of plutonium. This was followed by India’s ﬁrst
      nuclear power plant in 1969. Among the nuclear-weapons States,
      India’s nuclear programme is unique in being technology driven
      rather than weapons driven.

         Historically, there has been a consensus in India on nuclear issues
      that has revolved around support for universal and non-discrimina-
      tory global nuclear disarmament and safeguarding of India’s security
      interests in a nuclearized world through the guarding of India’s
      options and capabilities.” 9

  8   CR 2016/4, p. 15, para. 5.
  9   Ibid., p. 16, paras. 7-8.

224

476         nuclear arms and disarmament (sep. op. bhandari)

  22. Mr. Gill, while concluding his submission, also stated that:
          “This essentiality is also recognized in India’s position that the ﬁrst
       step toward a nuclear-weapons-free world is a universal commitment
       and an agreed global and non-discriminatory multilateral framework.
       [India] remain[s] ready to work for this noble goal in the designated
       multilateral forums.” 10

  23. India’s Prime Minister, Ms Indira Gandhi, in 1968 addressed the
Indian Parliament on the question of whether to sign the NPT and
described the situation in the following terms:
         “Mankind today is at the crossroads of nuclear peace and nuclear
       war. There can be no doubt that we should take the road to nuclear
       peace. But the ﬁrst step in this direction is not yet in sight. It is vitally
       important, therefore, for the nuclear weapon powers to undertake as
       soon as possible meaningful negotiations on a series of measures lead-
       ing to nuclear disarmament.” 11

   24. India’s negotiator, Mr. V. C. Trivedi, between 1965 and 1966, made
several statements at the Conference of the Eighteen-Nation Committee on
Disarmament (ENCD), where he again reiterated India’s commitments to
nuclear disarmament (statement by India’s negotiator, Mr. V. C. Trivedi at
the Conference of the Eighteen-Nation Committee on Disarmament,
12 August 1965, 15 February 1966, 10 May 1966, 23 May 1967, 28 Septem-
ber 1967; CMI, Annexes 13-17). In 1968, it was Ambassador Azim Husain
who addressed the ENCD and the Political Committee of the United Nations
in similar terms. (Statement by Ambassador Azim Husain at the Conference
of the Eighteen-Nation Committee on Disarmament, 27 February 1968,
CMI, Annex 19; and statement by Ambassador Azim Husain in the Politi-
cal Committee of the United Nations, 14 May 1968, CMI, Annex 20.)
   25. The External Aﬀairs Minister M. C. Chagla, reporting on these
appearances before the ENCD in March 1967, informed the Indian Par-
liament of the progress made at the ENCD, whose work to negotiate an
international treaty to prevent the proliferation of nuclear weapons is
based on the main principles laid down by the General Assembly in its
Resolution No. 2028 (XX) of 19 November 1965. He recalled that
“[India’s] views on the question of non-proliferation of nuclear weapons
have been stated from time to time in the ENDC and at the forum of the
United Nations. These views remain unchanged.” 12

  10  CR 2016/4, p. 19, para. 12.
  11  Statement by Prime Minister Indira Gandhi, Lok Sabha, 5 April 1968; CMI,
Annex 21.
   12 Statement made by External Aﬀairs Minister M. C. Chagla in the Indian Parliament,

27 March 1967; CMI, Annex 18.

225

477        nuclear arms and disarmament (sep. op. bhandari)

  26. Mr. Chagla further stated that
          “The Government of India share[s] with the international commu-
       nity the anxiety arising from the proliferation of nuclear weapons.
       They favour an early agreement on such a treaty and will be willing
       to sign one which fulﬁls the basic principles laid down by the United
       Nations. They are of the view that any such treaty should be a signif-
       icant step towards general and complete and, particularly nuclear
       disarmament, and must meet the points of view of both nuclear
       weapon and non-nuclear weapon Powers.” 13

  27. The Indian Prime Minister Rajiv Gandhi, on 9 June 1988, made a
very important and signiﬁcant speech before the General Assembly of the
United Nations where he suggested a concrete action plan for elimination
of all nuclear weapons in three stages over the next 22 years beginning
now. He stated:
          “The heart of our Action Plan is the elimination of all nuclear
       weapons, in three stages over the next twenty-two years, beginning
       now. We put this Plan to the United Nations as a programme to be
       launched at once.
          While nuclear disarmament constitutes the centrepiece of each
       stage of the Plan, this is buttressed by collateral and other measures
       to further the process of disarmament. We have made proposals for
       banning other weapons of mass destruction. We have suggested steps
       for precluding the development of new weapon systems based on
       emerging technologies. We have addressed ourselves to the task of
       reducing conventional arms and forces to the minimum levels required
       for defensive purposes. We have outlined ideas for the conduct of
       international relations in a world free of nuclear weapons.” 14

  28. Had the action plan suggested by the Indian Prime Minister been
accepted, all nuclear weapons would have been destroyed by 2010.
  29. India’s nuclear policy was again articulated by India’s Prime
Minister, Atal Bihari Vajpayee, on 27 May 1998 before the General
Assembly of the United Nations. I quote the relevant part of the speech:

          “Our nuclear policy has been marked by restraint and openness. It
       has not violated any international agreements either in 1974 or now,
       in 1998. Our concerns have been made known to our interlocutors in
  13  CMI, Annex 18.
  14  “A World Free of Nuclear Weapons: An Action Plan”, tabled at the Third Special
Session on Disarmament of the UN General Assembly, 9 June 1988, p. 5; CMI, Annex 4.

226

478       nuclear arms and disarmament (sep. op. bhandari)

      recent years. The restraint exercised for 24 years, after having demon-
      strated our capability in 1974, is in itself a unique example. Restraint,
      however, has to arise from strength. It cannot be based upon indeci-
      sion or doubt. Restraint is valid only when doubts are removed. The
      series of tests undertaken by India have led to the removal of doubts.
      The action involved was balanced in that it was the minimum neces-
      sary to maintain what is an irreducible component of our national
      security calculus. This Government’s decision has, therefore, to be
      seen as part of a tradition of restraint that has characterized our pol-
      icy in the past 50 years.” 15

   30. Mr. Vajpayee also reiterated that global nuclear disarmament is
India’s preferred approach.
   31. The Indian External Aﬀairs Minister on 9 May 2000 made this
statement before the parliament that India holds a genuine and lasting
non-proliferation that can only be achieved through agreements that are
based upon equality and non-discrimination for only those can contribute
to the global peace and stability. The cabinet committee on security
reviewed progress in operationalizing India’s nuclear doctrine on 4 Janu-
ary 2003 and declared India’s nuclear policy satisfactory. In reply to the
submissions of the Applicant, the RMI, it was suggested that all States
possessing nuclear weapons need to intensify eﬀorts to address the respon-
sibilities in moving towards an eﬀective and secure disarmament.

  32. India’s 2006 Working Paper on Nuclear Disarmament strongly
urges “the complete elimination of nuclear weapons” (India Working
Paper on Nuclear Disarmament, p. 4; originally issued in the First Com-
mittee in 2006 under the symbol A/C.1/61/5 and submitted to the CD as
CD/1816 of 20 February 2007, Annex 1).

  33. India’s Minister of External Aﬀairs on 26 September 2013 stated
before the General Assembly of the United Nations:

         “As a responsible nuclear power, we have a credible minimum
      deterrence policy and a posture of no-ﬁrst use. We refuse to partici-
      pate in an arms race, including a nuclear arms race. We are prepared
      to negotiate a global No-First-Use treaty and our proposal for a Con-
      vention banning the use of nuclear weapons remains on the table.
      As we see no contradiction between nuclear disarmament and non-
      proliferation, we are also committed to working with the international

  15 “Evolution of India’s Nuclear Policy”, paper presented in the Lok Sabha by Prime

Minister Atal Bihari Vajpayee, 27 May 1998, p. 6; CMI, Annex 5, para. 18.

227

479       nuclear arms and disarmament (sep. op. bhandari)

      community to advance our common objectives of non-proliferation,
      including through strong export controls and membership of the
      multilateral export regimes.

        Mr. President, the Non-Aligned Movement, of which India is a
      proud founding member, has proposed today the early commence-
      ment of negotiations in the CD on nuclear disarmament. We support
      this call. Without prejudice to the priority we attach to nuclear disar-
      mament, we also support the negotiation in the CD of a non-discrim-
      inatory and internationally veriﬁable treaty banning the future
      production of ﬁssile material for nuclear weapons and other nuclear
      explosive devices that meet India’s national security interests. It
      should be our collective endeavour to return the CD, which remains
      the single multilateral disarmament negotiating forum, to substantive
      work as early as possible.” 16

  34. India was a party to the resolution adopted on 7 December 2015
by the General Assembly of the United Nations. In the resolution it is
mentioned “[c]onvinced that the continuing existence of nuclear weapons
poses a threat to humanity and all life on Earth”, and “[r]ecognizing 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”.
  35. India’s Co-Agent, Mr. Gill, in referring to Annex 9 to the Counter-
Memorial of India, presented the situation in clear terms when he
summarized the Parties’ voting patterns on this issue during the oral pro-
ceedings:
         “In closing, I would like to reiterate that there is no dispute between
      the Republic of the Marshall Islands and India. Annex 9 to India’s
      Counter-Memorial shows without the shadow of a doubt that while
      India consistently voted for, in fact even co-sponsored, the resolution
      on the Advisory Opinion of the ICJ calling upon ‘all States immedi-
      ately to fulﬁl that obligation by commencing multilateral negotiations
      leading to an early conclusion of a nuclear weapons convention pro-
      hibiting the development, production, testing, deployment, stockpil-
      ing, transfer, threat or use of nuclear weapons and providing for their
      elimination’, the Republic of the Marshall Islands mostly abstained

   16 Statement by Salman Khurshid, Minister of External Aﬀairs of India, at the

High-Level Meeting of the General Assembly on Nuclear Disarmament, 68th Session of
the United Nations General Assembly, 26 September 2013; CMI, Annex 6.

228

480        nuclear arms and disarmament (sep. op. bhandari)

       and once even voted ‘No’ on that resolution. This underlines like no
       other fact the contrived nature of this dispute.” 17

  36. The chart submitted by the Respondent as Annex 9 is reproduced
here for ease of reference:

              Voting Patterns on ICJ Resolutions (2003-2012)

  Year             India              India’s         Marshall Island’s
               Co-sponsorship          Vote                Vote
  2003              Yes                Yes                 No
  2004              Yes                Yes                 Yes
  2005              Yes                Yes               Abstained
  2006              Yes                Yes               Abstained
  2007              Yes                Yes               Abstained
  2008              Yes                Yes               Abstained
  2009              Yes                Yes               Abstained
  2010              Yes                Yes               Abstained
  2011              Yes                Yes               Abstained
  2012              Yes                Yes               Abstained

  37. India’s permanent representative on 24 February 2015 made
this statement before the CD regarding nuclear disarmament policy of
India:
        “India has been unwavering in its commitment to universal,
     non-discriminatory, veriﬁable nuclear disarmament. In our view,
     nuclear disarmament can be achieved through a step-by-step process
     underwritten by a universal commitment and an agreed global and
     non-discriminatory multilateral framework. We have called for a
     meaningful dialogue among all States possessing nuclear weapons to
     build trust and conﬁdence and for reducing the salience of nuclear
     weapons in international aﬀairs and security doctrines. We believe
     that increasing restraints on use of nuclear weapons would reduce the
     probability of their use — whether deliberate, unintentional or acci-
     dental and this process could contribute to the progressive delegitimi-
     zation of nuclear weapons, an essential step for their eventual
     elimination, as has been the experience for chemical and biological
     weapons.” 18

  17 CR 2016/4, p. 18, para. 11.
  18 Statement on Nuclear Disarmament delivered by Ambassador D. B. Venkatesh
Varma, Permanent Representative of India to the CD at the CD plenary meeting,
24 February 2015; CMI, Annex 10, para. 2.

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481        nuclear arms and disarmament (sep. op. bhandari)

  38. India’s nuclear policy was thus reﬂected by the statement of India’s
permanent representative, Mr. Varma, to the CD.
  39. The position taken by the Respondent in its Counter-Memorial and
during the oral proceedings. Speciﬁcally responding to the Applicant’s
contention that it had raised the dispute with all nuclear States, including
India, during the Second Conference on the Humanitarian Impact of
Nuclear Weapons at Nayarit in February 2014, the Respondent described
how in fact the positions of the Parties are aligned and no dispute exists:

        “The reading of . . . India’s and the Marshall Islands’ statements
      at this conference clearly shows that their positions on the issue of
      nuclear disarmament, far from being ‘positively opposed’, in fact con-
      verge. If the Marshall Islands called on ‘all States possessing nuclear
      weapons to intensify eﬀorts to address their responsibilities in moving
      towards an eﬀective and secure disarmament’, India expressed its sup-
      port for nuclear disarmament and reiterated its commitment to the
      complete elimination of nuclear weapons in a time-bound, universal,
      non-discriminatory, phased and veriﬁable manner.” 19

  40. The Respondent’s Agent, Ms Neeru Chadha reiterated the conver-
gence of the Parties’ positions during the oral proceedings when she stated
that “the position of the parties at that conference [the Nayarit Febru-
ary 2014 conference] regarding the need for nuclear disarmament actually
coincided” (CR 2016/4, pp. 10-11, para. 12).
  41. It is evident from the excerpts transcribed, there is more conver-
gence than divergence in the Parties’ stated positions. Nuclear disarma-
ment 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.

   19 CMI, p. 9, para. 13, citing MMI, para. 18; India’s Statement at the Second Confer-

ence on Humanitarian Impact of Nuclear Weapons, available at: http://www.mea.gov.
in/Speeches-Statements.htm?dtl/22936/Statement_by_India_at_the_Second_Conference_
on_the_Humanitarian_Impact_of_Nuclear_Weapons_at_Nayarit_Mexico; Republic of
the Marshall Island’s Statement at the Second Conference on the Humanitarian Impact
of Nuclear Weapons, available at: http://www.reachingcriticalwill.org/images/documents/
Disarmament-fora/nayarit-2014/statements/MarshallIslands.pdf; South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 328; Armed Activities on the Territory of the Congo (New Applica-
tion: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2006, p. 40, para. 90; 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), pp. 84-85, para. 30; and Ques-
tions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 442, para. 46.

230

482       nuclear arms and disarmament (sep. op. bhandari)

   42. The Marshall Islands and India have been chasing the same goal of
disarmament and how the world can become free of nuclear weapons.
Both countries are making serious eﬀorts in this direction, therefore by
no stretch of the imagination can it be concluded that there is any dispute
between the Marshall Islands and India.
   43. On application of the Court’s Statute and its jurisprudence to
the documents and pleadings placed before the Court, the irresistible con-
clusion is the absence of any dispute between the Parties, and conse-
quently, on the facts of this case, the Court lacks jurisdiction to deal with
this case.
   44. 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 Judgment considers that what is required
is that “[t]he evidence must show that . . . the respondent was aware, or
could not have been unaware, that its views were ‘positively opposed’ by
the applicant” (Judgment, para. 38).

   45. The Court has the freedom to choose any preliminary objection
when examining its own jurisdiction. In doing so, it usually chooses the
most “direct and conclusive one”. Christian Tomuschat summarized the
situation in clear terms in his contribution on Article 36 to the handbook
The Statute of the International Court of Justice — A Commentary. He
stated:
         “The Court is free to choose the grounds on which to dismiss a case
      either for lack of jurisdiction or as being inadmissible. It does not
      have to follow a speciﬁc order, nor is there any rule making it com-
      pulsory to adjudge ﬁrst issues of jurisdiction before relying on lack of
      admissibility. The Court generally bases its decisions on the ground
      which in its view is ‘more direct and conclusive’. In pure legal logic,
      it would seem inescapable that the Court would have to rule by order
      of priority on objections related to jurisdiction. However, such a strict
      procedural regime would be all the more infelicitous since the border-
      line between the two classes of preliminary objections is to some
      extent dependent on subjective appreciation. The Court therefore
      chooses the ground which is best suited to dispose of the case (‘direct
      and conclusive’).” 20
  46. This freedom of the Court was ﬁrst stated in the Certain Norwegian
Loans (France v. Norway) case, where the Court considered that its juris-
diction was being challenged on two grounds, and that the Court is free
to base its decision on the ground which in its judgment is more direct
and conclusive (Certain Norwegian Loans (France v. Norway), Judgment,
I.C.J. Reports 1957, p. 25).

   20 Christian Tomuschat, The Statute of the International Court of Justice — A Commen-

tary (Second Edition), p. 707, para. 138, footnotes omitted.

231

483       nuclear arms and disarmament (sep. op. bhandari)

   47. This position has consistently been taken by the Court in the years
since the Certain Norwegian Loans matter (see, for example, Aerial Inci-
dent of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959,
p. 146; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment,
I.C.J. Reports 1978, pp. 16-17; Aerial Incident of 10 August 1999 (Paki-
stan v. India), Jurisdiction, Judgment, I.C.J. Reports 2000, p. 24, para. 26;
Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004 (I), p. 298, para. 46).
   48. In the instant case, by choosing the lack of awareness on the part
of Respondent as the main ground for the dismissal of the claim, it
appears, with respect, that the Court has chosen not to give emphasis to
the most “direct and conclusive” element of that ground for the dismissal
of the claim. The consequence is serious: lack of awareness on the part of
the Respondent can be easily cured by the Applicant by giving proper
notice of the dispute to the Respondent. In that case, the Marshall Islands
could simply bring the case again before the Court. In my view, that
would be an undesirable result and should be discouraged. The real
ground for the dismissal of the case ought to have been the absence of a
dispute between the Parties. The majority has only dealt with preliminary
objection number one, and even while dealing with that objection greater
emphasis was not placed on the analysis of the documents and pleadings
of the Parties, which reveals that there is no dispute between them.
   49. 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-submis-
sion 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.
   50. On careful consideration of all documents, pleadings and submis-
sions the irresistible conclusion is that no dispute exists between the Par-
ties. The majority Judgment ought to have rejected the RMI’s Application
mainly on this ground.

                Part Two: Other Preliminary Objections

   51. In the facts of this case the Court should have examined other pre-
liminary objections taken by the Respondent, namely:
1.    Monetary Gold principle, i.e., absence of essential parties not party to
      the instant proceedings;
2.    The Judgment would serve no practical purpose; and

3.    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.

232

484      nuclear arms and disarmament (sep. op. bhandari)

                        Monetary Gold Principle
  52. I deem it proper to very brieﬂy deal with the other preliminary
objections to demonstrate that the other objections are also substantial in
character and should have been adjudicated by the Court.
  53. In relation to the application of the Monetary Gold principle, on
behalf of India it was submitted that a judgment of the Court would serve
no legitimate purpose in the absence of other indispensable parties.
  54. The Applicant in its Application submitted a chart, which indicates
that India, Pakistan and the United Kingdom, Respondents in these three
proceedings put together, possess less than 3 per cent of the total nuclear
weapons in the world (RMI’s chart in its Application at page 14). The
other countries, who possess the other more than 97 per cent of the
nuclear weapons in the world, are not before the Court and consequently
the Court is precluded from exercising its jurisdiction in this matter with
respect to those States (the States possessing 97 per cent of the nuclear
weapons). Therefore, it is indispensable to have the participation of the
other countries who possess such a large quantity of the world’s nuclear
weapons.
  55. It was further contended on behalf of the Respondent that it can-
not unilaterally enter into negotiations in the absence of other major
nuclear powers.
  56. The Court considered in its 1996 Advisory Opinion on nuclear
weapons that any realistic search for general and complete disarmament
would require the co-operation of all States (Legality of the Threat or Use
of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 264,
para. 100). This was also stated by India’s Agent, Ms Neeru Chadha,
in her introductory submissions (CR 2016/4, 10 March 2016, p. 11,
para. 18).
  57. In the Respondent’s view, the question of nuclear disarmament
must be the subject-matter of a multilateral treaty and such a legislative
function is not within the province of the Court, but “is strictly the pre-
serve of the UN inter-governmental forums” (CMI, para. 42).
  58. This preliminary objection is substantial in character and it ought
to have been adjudicated by the Court.

       The Court’s Judgment Would Not Have any Concrete Effect
   59. In another preliminary objection, India contends in its Coun-
ter-Memorial that a Judgment by the Court in the present case would
serve no legitimate purpose and have no practical consequence. It ﬁrst
points out that the majority of nuclear-weapon States which refuse to
consent to the Court’s jurisdiction could not be bound by such a Judg-
ment to negotiate with India, and that “a unilateral direction to India to
carry out negotiations without the same decision being equally applicable
to other States would be meaningless”. India further notes that such a
Judgment would be purposeless, since it has always ﬁrmly indicated its

233

485         nuclear arms and disarmament (sep. op. bhandari)

willingness to proceed to negotiations on comprehensive nuclear disarma-
ment in the Conference on Disarmament (CMI, paras. 88-90).
  60. This preliminary objection also deserved adjudication by the Court.

                                      Reservations
       Applicability of India’s Fourth Reservation (Disputes relating to
                   Situations of Hostilities or Self-Defence)
  61. India’s fourth reservation excludes the jurisdiction of the Court
for:
          “[D]isputes relating to or connected with facts or situations of hos-
       tilities, armed conﬂicts, individual or collective actions taken in self-
       defence, resistance to aggression, fulﬁlment of obligations imposed by
       international bodies, and other similar or related acts, measures or
       situations in which India is, has been or may in future be involved.” 21

  62. India contends that its measures of self-defence are covered by the
fourth reservation. In the Respondent’s view, all disputes concerning any
weapons, including nuclear weapons, which it might choose to possess or
develop to protect itself from hostilities, armed conﬂicts, aggression and
other similar or related acts or situations, are therefore excluded from the
Court’s jurisdiction.

  63. India adds that the Marshall Islands has sought to limit the scope
of India’s reservation artiﬁcially to speciﬁc situations of use of force.
In its view, such an interpretation of the reservation is not in keeping
with the plain meaning of the language used — in particular, India delib-
erately used very broad language — and runs counter to the intention
underlying this reservation, which was to exclude from the Court’s juris-
diction any matter pertaining to national security and self-defence (CMI,
paras. 54-62).
  64. This preliminary objection is substantial in character and it ought
to have been adjudicated by the Court.

                Applicability of India’s Fifth Reservation
(Acceptance of Jurisdiction Exclusively for the Purposes of the Dispute or
       less than 12 Months prior to the Filing of the Application)
  65. India’s ﬁfth reservation excludes from the Court’s jurisdiction:
       “[D]isputes with regard to which any other party to a dispute has
       accepted the compulsory jurisdiction of the International Court of
       Justice exclusively for or in relation to the purposes of such dispute;
       or where the acceptance of the Court’s compulsory jurisdiction on
  21   India’s declaration accepting the Court’s compulsory jurisdiction.

234

486         nuclear arms and disarmament (sep. op. bhandari)

       behalf of a party to the dispute was deposited or ratiﬁed less than
       12 months prior to the ﬁling of the application bringing the dispute
       before the Court.” 22
   66. India claims in its Counter-Memorial that the Marshall Islands
accepted the jurisdiction of the Court for the sole purpose of the dispute,
and that India’s ﬁfth reservation therefore applies. The Respondent notes
in this respect that the Marshall Islands deposited its declaration recog-
nizing the compulsory jurisdiction of the Court on 24 April 2013, and
ﬁled the Application in the present case on 24 April 2014; in its view, this
demonstrates that “the Declaration was carefully devised so as to permit
the [RMI] to lodge its Application on this artiﬁcial dispute as it did with
an undue haste” (CMI, paras. 64-71).
   67. The Respondent further argues that this chronology in any event
shows that the said Application was ﬁled one day before the expiry of the
12-month time-limit set in the ﬁfth reservation of its declaration, which,
by itself, constitutes grounds to reject the Application of the Marshall
Islands (ibid., para. 72).
   68. This preliminary objection also deserved to be considered.

        Applicability of India’s Seventh Reservation (Interpretation or
                     Application of a Multilateral Treaty)
   69. India’s seventh reservation provides that the Court has no jurisdic-
tion to settle: “disputes concerning the interpretation or application of a
multilateral treaty unless all the parties to the treaty are also parties to the
case before the Court or [the] Government of India specially agree[s] to
jurisdiction [over such disputes]” 23.
   70. India is of the view that, since the real purpose of the Application
is to induce the Court to declare that India is in breach of obligations
stemming from Article VI of the NPT, its seventh reservation is also
applicable in the present case. It contends that the subject-matter of the
case, as deﬁned by the Marshall Islands in its Memorial, concerns the
question of whether Article VI of the NPT gives rise to a general principle
of disarmament applicable erga omnes, the alleged disputes therefore con-
cerns the interpretation and application of the NPT.
   71. India further argues that the legal context in the present case diﬀers
in two respects from that in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of Amer-
ica): (i) whereas, in the latter case, the United States invoked the viola-
tion of treaties which “codiﬁed” customary international law, in the
present case the Marshall Islands is invoking an obligation of customary
international law “rooted” in Article VI of the NPT, which thus necessar-
ily requires interpretation by the Court; (ii) while the American reserva-

  22   India’s declaration accepting the Court’s compulsory jurisdiction.
  23   Ibid.

235

487         nuclear arms and disarmament (sep. op. bhandari)

tion excluded “disputes arising under a multilateral treaty”, that of India,
which is wider, excludes “disputes concerning the interpretation or appli-
cation of a multilateral treaty”, and therefore bars the jurisdiction of the
Court to entertain disputes which, as in the present case, concern the
interpretation of a treaty or imply such an interpretation (CMI,
paras. 74-82).
   72. This preliminary objection deserved consideration by the Court.

 Applicability of India’s Eleventh Reservation (Disputes the Foundations
       of which Existed prior to the Date of India’s Declaration)
   73. India’s eleventh reservation excludes from the jurisdiction of the
Court: “disputes prior to the date of this declaration, including any dis-
pute the foundations, reasons, facts, causes, origins, deﬁnitions, allega-
tions or bases of which existed prior to this date, even if they are
submitted or brought to the knowledge of the Court hereafter” 24.
   74. India claims in its Counter-Memorial that this reservation is par-
ticularly wide and excludes from the Court’s jurisdiction any dispute
whose origin is prior to the date on which it ﬁled its 1974 declaration as
in the present case. It recalls in this respect that it refused to sign the NPT
and to assume obligations under that Treaty in 1968; it concludes that its
alleged failure to negotiate nuclear disarmament is a cause which existed
prior to its 1974 declaration and, consequently, cannot be the subject-
matter of an application before the Court (ibid., paras. 83-87).

  75. The Respondent’s preliminary objection is substantial in character
and it ought to have been adjudicated by the Court.
  76. On the basis of the entire materials on record, it can be safely
observed that India has been unwavering in its commitment to disarma-
ment. The majority Judgment ought to have held clearly that, on the
basis of documents and pleadings of the Parties, no dispute existed
between them at the time of ﬁling the Application, while upholding
India’s ﬁrst preliminary objection.

                                                    (Signed) Dalveer Bhandari.

  24   India’s declaration accepting the Court’s compulsory jurisdiction.

236


57

          DISSENTING OPINION OF JUDGE BENNOUNA

[Original English Text]

   Optional clause declaration — Reservation for disputes subject to another
method of settlement — Interpretation of paragraph 6 of the MOU — Article 31
of the Vienna Convention on the Law of Treaties — Reversal of order of the
general rule of interpretation — Ordinary meaning of the terms as starting point —
Erroneous analogy with Article 83 of UNCLOS — Existence of a procedure for
the settlement of the maritime dispute in paragraph 6.

   To my regret, I had to vote against the decision of the Court ﬁnding
that it has jurisdiction over Somalia’s request.
   In its Application of 28 August 2014, Somalia founded the Court’s
jurisdiction on the optional clause declarations made by the Parties, on
11 April 1963 (Somalia) and 19 April 1965 (Kenya), pursuant to Arti-
cle 36, paragraph 2, of the Statute of the Court. In its ﬁrst preliminary
objection, raised on 7 October 2015, Kenya contended that one of the
reservations to its declaration recognizing the Court’s jurisdiction should
apply in the present case; that reservation excludes from the Court’s juris-
diction “[d]isputes in regard to which the parties to the dispute have
agreed or shall agree to have recourse to some other method or methods
of settlement”. In Kenya’s view, the Memorandum of Understanding
(MOU) that it concluded with Somalia on 7 April 2009 provides for a
method of settlement which falls squarely within the scope of that reser-
vation. Somalia’s Application thus relates to a dispute in respect of which
Kenya has not accepted the Court’s jurisdiction. There is nothing unusual
about the reservation made by Kenya, since it appears in over 40 optional
clause declarations recognizing the jurisdiction of the Court.

   The Parties disagree on the meaning of the MOU and, in particular, as
to whether or not, in stipulating another method of settlement for mari-
time delimitation, it falls within the scope of Kenya’s reservation to its
declaration recognizing the Court’s jurisdiction. In this regard, it must be
borne in mind that in the Application instituting proceedings, dated
28 August 2014, Somalia asked the Court “to determine, on the basis of
international law, the complete course of the single maritime boundary
dividing all the maritime areas appertaining to Somalia and to Kenya in
the Indian Ocean, including in the continental shelf beyond 200 nautical
miles”. This is how Somalia deﬁnes its dispute with Kenya which it has
submitted to the Court, but, as we know, it is for the Court to determine
objectively the content and scope of such a dispute, in accordance with
the established jurisprudence.

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58            maritime delimitation (diss. op. bennouna)

   Having determined the legal status of the MOU as a “treaty that
entered into force upon signature and is binding on the Parties”, the
Court proceeds to interpret it in order to make a ﬁnding on its own juris-
diction in this case. Kenya considers that the MOU deﬁnes the dispute as
one concerning delimitation, since it states (in the second paragraph) that
“[t]his unresolved delimitation issue between the two coastal States is to
be considered as a ‘maritime dispute’. The claims of the two coastal States
cover an overlapping area of the continental shelf which constitutes the
‘area under dispute’.” Kenya adds that paragraph 6 of the MOU provides
for a dispute settlement procedure which excludes the Court’s jurisdic-
tion.
   Somalia denies that paragraph 6 provides for another method of settle-
ment for a delimitation dispute between the Parties and claims that this
paragraph merely recalls the Parties’ obligation to negotiate to reach an
agreement in accordance with Articles 74 and 83 of UNCLOS.
   Faced with this dispute over the interpretation of the MOU as an inter-
national treaty, the Court should have had recourse to the general rule of
interpretation in Article 31 of the Vienna Convention on the Law of
Treaties, which has customary status: “[a] treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and pur-
pose”.
   Thereafter, it should have focused on the interpretation of paragraphs 2
(deﬁnition of the dispute) and 6 (method of settlement for a delimitation
dispute), which have given rise to the diﬀerence of views between the Par-
ties. The Court takes a diﬀerent approach, however, without really
explaining why. While recognizing that the sixth paragraph of the MOU
is at the heart of the ﬁrst preliminary objection currently under consider-
ation, it immediately adds:
       “It is, however, diﬃcult to understand that paragraph without a
     prior analysis of the text of the MOU as a whole, which provides the
     context in which any particular paragraph should be interpreted and
     gives insight into the object and purpose of the MOU. The Court will
     therefore proceed ﬁrst of all to such an analysis. It will then turn to
     an examination of the sixth paragraph.” (Judgment, para. 65.)
   This approach, which is highly unusual, ultimately amounts to invert-
ing the order set out in Article 31 of the Vienna Convention and even the
scope of the general rule of interpretation enshrined therein. For it is a
question of ascertaining “the ordinary meaning to be given to the terms
of the treaty in their context”, and thus beginning with the terms whose
meaning poses diﬃculties and then, where necessary, placing those terms
in their context. The Court decided from the outset that the sixth para-
graph was, in itself, diﬃcult to understand, without even taking the trou-
ble to explain the reasons why this text was supposedly unclear,
ambiguous, unreasonable or incompatible with other rules of interna-
tional law (ibid.). While it is true that the general rule of interpretation

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59            maritime delimitation (diss. op. bennouna)

contains interrelated elements, the Court has consistently held that the
ordinary meaning of the text should be the starting point (see, for exam-
ple, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,
I.C.J. Reports 1994, pp. 21-22, para. 41: “Interpretation must be based
above all upon the text of the treaty.”).
   This inverted reasoning leads the Court to ﬁnd that the purpose of the
MOU as a whole is to enable the CLCS to consider the submissions made
by Somalia and Kenya regarding the outer limit of their continental shelf
(Judgment, para. 75). And it is based on this assessment of the MOU
alone that the Court examines the sixth paragraph, which was a source of
disagreement between the Parties throughout the proceedings on jurisdic-
tion:
       “The delimitation of maritime boundaries in the areas under dis-
     pute, including the delimitation of the continental shelf beyond
     200 nautical miles, shall be agreed between the two coastal States on
     the basis of international law after the Commission has concluded its
     examination of the separate submissions made by each of the two
     coastal States and made its recommendations to two coastal States
     concerning the establishment of the outer limits of the continental
     shelf beyond 200 nautical miles.”
   According to the ordinary meaning of this paragraph, the Parties have
resolved to delimit their continental shelf deﬁnitively by means of an
agreement, once the CLCS had made its recommendations, on the outer
limits of the continental shelf beyond 200 nautical miles.
   Thus, paragraph 6 of the MOU provides for a procedure for the settle-
ment of the dispute between the Parties by negotiation and by agreement
once the CLCS has made its recommendations.
   However, in order to conclude that paragraph 6 does not contain such
a procedure, which is capable of triggering Kenya’s reservation, the Court
will consider that there is no such dispute settlement procedure, on the
one hand, and that it does not involve any time constraints, on the other
hand.
   Applying a reasoning by analogy, the Court ﬁnds a “similarity”
between paragraph 6 of the MOU and Article 83, paragraph 1, of
UNCLOS, according to which “[t]he delimitation of the continental shelf
between States with opposite or adjacent coasts shall be eﬀected by agree-
ment on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equi-
table solution”.
   For the Court, “it is a provision on the establishment of a maritime
boundary between States . . . in respect of the continental shelf, which
does not prescribe the method for the settlement of any dispute relating
to the delimitation of the continental shelf” (Judgment, para. 90). In my
view, it is a matter of disregarding the fact that negotiation is the ﬁrst
dispute settlement procedure provided for in Article 33 of the Charter of
the United Nations. On the other hand, the commencement of negotia-

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60              maritime delimitation (diss. op. bennouna)

tions under Article 83, paragraph 1, of UNCLOS concerns not only the
establishment of the maritime boundary, as the Court indicates, but also
the settlement of the dispute relating to the latter and which would arise
from the opposing views of the parties. Finally, the Court disregards Arti-
cle 83, paragraph 2, of UNCLOS, which states that “[i]f no agreement
can be reached within a reasonable period of time, the States concerned
shall resort to the procedures provided in Part XV”. We are indeed in the
realm of negotiation as a dispute settlement procedure that must be con-
ducted in good faith and within a reasonable time before resorting to
more complex procedures and which involve third parties.
   Moreover, the reasoning by analogy may lead to erroneous conclusions
if it is applied in respect of provisions which are not comparable, as is the
case with paragraph 6 of the MOU and Article 83, paragraph 1, of
UNCLOS. In fact, paragraph 6 provides for a time constraint which gives
priority to the delineation of the continental shelf by the CLCS over its
delimitation by the Parties.

  It is not suﬃcient to assert, as the Court does, that “Kenya did not
consider itself bound to wait for those [CLCS’s] recommendations before
engaging in negotiations on maritime delimitation, or even reaching
agreements thereon” (Judgment, para. 92). Indeed, if the two rounds of
negotiations between the Parties held in 2014, at a time when Somalia
was denying the validity of the MOU, had succeeded, the question of the
submission to the Court would no longer have arisen, nor would it have
required the Court’s assessment of the scope of Kenya’s reservation.

   Therefore, the Court cannot avoid interpreting paragraph 6 of the
MOU in relation to Kenya’s reservation. And that paragraph clearly and
unambiguously states that the Parties have agreed to ﬁnd common ground
once the CLCS has made its recommendations. This reading of what is a
clear text is neither absurd nor unreasonable given the purpose of the
MOU, which gives priority to the work of the CLCS, the Parties setting
aside any objections they may have. Other countries, in international
practice, have agreed to do the same 1. In the present case, the Court
should give eﬀect to the commitments made by the Parties, as conﬁrmed
by its jurisprudence:
        “When the Court can give eﬀect to a provision of a treaty by giving
     to the words used in it their natural and ordinary meaning, it may not
     interpret the words by seeking to give them some other meaning.”
     (Competence of the General Assembly for the Admission of a State to
     the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8.)

  1 See, for example, in 2006, the Agreed Minutes between the Faroe Islands, Iceland and

Norway; in 2010, the Agreement between Norway and Russia, and, in 2013, the Agreed
Minutes between Denmark (Greenland) and Iceland.

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61            maritime delimitation (diss. op. bennouna)

   It is only during a second phase, once the ordinary meaning of the
treaty provision in question has been established, that the Court can set it
against other elements, such as the context, object and purpose of that
instrument. Moving away from the ordinary meaning is possible only if it
can be established that it is incompatible with those elements (South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 336). The Court, however,
has failed to demonstrate such an incompatibility. Instead it makes a
series of assumptions about what the Parties might have agreed in the
MOU (Judgment, para. 95); whereas, in matters of interpretation, one
should rely on the content of the text, its intrinsic aspects, and not on
what it could or should have provided. Thus, according to the Court, the
“sixth paragraph of the MOU can [not] be interpreted as precluding the
Parties from reaching an agreement on their maritime boundary, or either
of them from resorting to dispute settlement procedures regarding their
maritime boundary dispute, before receipt of the CLCS’s recommenda-
tions” (ibid.).

   However, would this prevent Kenya from invoking its reservation to
the declaration recognizing the jurisdiction of the Court? That reservation
refers to “some other method or methods of settlement”. Therefore, it is
suﬃcient that the MOU establish a single method of settlement, with a
time constraint in this instance, in order for the reservation to apply. In
other words, the meaning of the reservation cannot be changed in the
light of the MOU’s purported shortcomings as a treaty.
   By means of the obligation set out in paragraph 6, the Parties have
undertaken to conclude an agreement on the delimitation of the continen-
tal shelf only once the CLCS has made its recommendations in that
respect. This is a temporal clause, which clearly distinguishes this method
of settlement from that provided for in Article 83, paragraph 1, of
UNCLOS. Paragraph 6 thus falls within the scope of Kenya’s reserva-
tion, which precludes the Court from settling the dispute submitted to it
by Somalia.
   At the end of its reasoning on this ﬁrst preliminary objection, the Court
ultimately gives a diﬀerent meaning to the terms of the sixth paragraph,
one which is at odds with their ordinary meaning. The Court considers
that “the text of the sixth paragraph of the MOU reﬂects that of Arti-
cle 83, paragraph 1, of UNCLOS” (ibid., para. 97). And thus, as if by
magic, the obligation, agreed on in this paragraph, to negotiate and con-
clude a maritime delimitation agreement in the area in dispute once the
CLCS has made it recommendations, vanishes.

   Is the Court required to refer to the travaux préparatoires of the MOU
(ibid., paras. 99-105)? I do not think so. At the outset, recourse to the
travaux is a supplementary means of interpretation used either to conﬁrm
the meaning resulting from the application of Article 31 of the Vienna
Convention on the Law of Treaties or to determine the meaning when it

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62            maritime delimitation (diss. op. bennouna)

remains ambiguous or obscure, or where the result is manifestly absurd
or unreasonable. Further, in this case, there are simply no such travaux in
the relations between the two States parties to the MOU. At most, there
are elements concerning the assistance extended by the Norwegian
Ambassador Longva to the Parties to conclude this agreement. It is sur-
prising that the Court has relied on a note by Ambassador Longva, refer-
ring to the MOU, to the extent that this note makes no mention of the
sixth paragraph. The Court draws a conclusion therefrom that “[i]f it
[MOU] had the signiﬁcance given to it by Kenya, it is to be expected that
this would have been highlighted by the State whose representative had
been instrumental in drafting the MOU” (Judgment, para. 104). How can
one interpret the silence of a text in such a way?
   In the end, one must not forget that when international courts,
whose jurisdiction depends on the consent of the States concerned, do
not respect that condition, they run the risk of the very issues they have
failed to address at this level resurfacing when the judgment is imple-
mented.

                                       (Signed) Mohamed Bennouna.

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