                            INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                   OBLIGATIONS CONCERNING NEGOTIATIONS
                          RELATING TO CESSATION
                        OF THE NUCLEAR ARMS RACE
                       AND TO NUCLEAR DISARMAMENT
                          (MARSHALL ISLANDS v. PAKISTAN)

                          JURISDICTION AND ADMISSIBILITY

                           JUDGMENT OF 5 OCTOBER 2016

                                   2016
                            COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

             OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                     CONCERNANT LA CESSATION
                DE LA COURSE AUX ARMES NUCLÉAIRES
                   ET LE DÉSARMEMENT NUCLÉAIRE
                            (ÎLES MARSHALL c. PAKISTAN)

                           COMPÉTENCE ET RECEVABILITÉ

                              ARRÊT DU 5 OCTOBRE 2016

6 CIJ1106.indb 1                                             13/11/17 09:02

                              Oﬃcial citation :
        Obligations concerning Negotiations relating to Cessation
         of the Nuclear Arms Race and to Nuclear Disarmament
  (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment,
                        I.C.J. Reports 2016, p. 552

                         Mode oﬃciel de citation :
       Obligations relatives à des négociations concernant la cessation
       de la course aux armes nucléaires et le désarmement nucléaire
       (Iles Marshall c. Pakistan), compétence et recevabilité, arrêt,
                          C.I.J. Recueil 2016, p. 552

                                              Sales number
ISSN 0074-4441
ISBN 978-92-1-157301-5
                                              No de vente:    1106

                                                        5 OCTOBER 2016

                                                         JUDGMENT

                    OBLIGATIONS CONCERNING NEGOTIATIONS
                           RELATING TO CESSATION
                         OF THE NUCLEAR ARMS RACE
                        AND TO NUCLEAR DISARMAMENT
                        (MARSHALL ISLANDS v. PAKISTAN)
                        JURISDICTION AND ADMISSIBILITY

                   OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                           CONCERNANT LA CESSATION
                      DE LA COURSE AUX ARMES NUCLÉAIRES
                         ET LE DÉSARMEMENT NUCLÉAIRE
                          (ÎLES MARSHALL c. PAKISTAN)
                         COMPÉTENCE ET RECEVABILITÉ

                                                    5 OCTOBRE 2016

                                                           ARRÊT

6 CIJ1106.indb 3                                                         13/11/17 09:02

552

                          TABLE OF CONTENTS

                                                      Paragraphs

Chronology of the Procedure                                1-13
I. Introduction                                           14-24
      A. Historical background                            14-20
      B. Proceedings brought before the Court             21-24
II. The Objection Based on the Absence of a Dispute       25-55
Operative Clause                                             56

4

               553

                               INTERNATIONAL COURT OF JUSTICE

   2016
                                                 YEAR 2016
 5 October
General List                                   5 October 2016
  No. 159

               OBLIGATIONS CONCERNING NEGOTIATIONS
                      RELATING TO CESSATION
                    OF THE NUCLEAR ARMS RACE
                   AND TO NUCLEAR DISARMAMENT
                                (MARSHALL ISLANDS v. PAKISTAN)

                                JURISDICTION AND ADMISSIBILITY

                  Historical background — Disarmament activities of the United Nations —
               Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968 — Court’s
               8 July 1996 Advisory Opinion on nuclear weapons.

                   Proceedings brought before the Court.

                                                       *
                  Objection based on absence of a dispute.
                  Meaning of “dispute” in case law of the Court — Parties must “hold clearly
               opposite views” — Existence of a dispute is a matter of substance, not form or
               procedure — Prior negotiations not required where Court seised on basis of decla-
               rations under Article 36 (2) of Statute unless one of these declarations so pro-
               vides — Formal diplomatic protest not required — Notice of intention to file claim
               not required — Existence of dispute is matter for objective determination by the
               Court — Court may take into account statements or documents exchanged in
               bilateral or multilateral settings — Conduct of parties may also be relevant — Evi-
               dence must demonstrate that Respondent was aware, or could not have been
               unaware, that its views were “positively opposed” by Applicant — Existence of
               dispute to be determined in principle as of date application is submitted — Limited
               relevance of subsequent conduct.

               5

554            nuclear arms and disarmament (judgment)

   Contention that dispute exists based on two statements made in multilateral
fora — Statement made at United Nations High-Level Meeting on Nuclear
Disarmament on 26 September 2013 — Statement made at conference in Nayarit,
Mexico, on 13 February 2014 — Neither statement sufficient to establish existence
of dispute.

   Contention that the very filing of Application and position of Parties in proceed-
ings show existence of dispute — Case law relied on by Marshall Islands does not
support this contention — Application and statements made during judicial pro-
ceedings cannot create dispute that does not already exist.

   Contention that dispute exists based on Pakistan’s conduct — Applicant’s state-
ments did not offer any particulars regarding Pakistan’s conduct — Cannot be
said that Pakistan was aware, or could not have been unaware, that the Marshall
Islands was making an allegation that Pakistan was in breach of its obligations —
Conduct of Pakistan cannot show opposition of views.

  Objection of Pakistan upheld — Not necessary for the Court to deal with other
objections — Case cannot proceed to the merits phase.

                                  JUDGMENT

Present: President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
         Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue,
         Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian;
         Judge ad hoc Bedjaoui; Registrar Couvreur.

   In the case regarding obligations concerning negotiations relating to cessation
of the nuclear arms race and to nuclear disarmament,
    between
the Republic of the Marshall Islands,
represented by
  H.E. Mr. Tony A. deBrum, Minister for Foreign Aﬀairs of the Republic of
     the Marshall Islands,
  Mr. Phon van den Biesen, Attorney at Law, van den Biesen Kloostra Advo-
     caten, Amsterdam,
  as Co-Agents;
  Ms Deborah Barker-Manase, Chargé d’aﬀaires a.i. and Deputy Permanent
     Representative of the Republic of the Marshall Islands to the United
     Nations, New York,
  as Member of the delegation;
  Ms Laurie B. Ashton, Attorney, Seattle,
  Mr. Nicholas Grief, Professor of Law, University of Kent, member of the
     English Bar,

6

555            nuclear arms and disarmament (judgment)

    Mr. Luigi Condorelli, Professor of International Law, University of Florence,
       Honorary Professor of International Law, University of Geneva,
    Mr. Paolo Palchetti, Professor of International Law, University of Macerata,
    Mr. John Burroughs, New York,
    Ms Christine Chinkin, Emerita Professor of International Law, London
       School of Economics, member of the English Bar,
    Mr. Roger S. Clark, Board of Governors Professor, Rutgers Law School,
       New Jersey,
    as Counsel and Advocates;
    Mr. David Krieger, Santa Barbara,
    Mr. Peter Weiss, New York,
    Mr. Lynn Sarko, Attorney, Seattle,
    as Counsel;
    Ms Amanda Richter, member of the English Bar,
    Ms Sophie Elizabeth Bones, LL.B., LL.M.,
    Mr. J. Dylan van Houcke, LL.B., LL.M., Ph.D. Candidate, Birkbeck, Uni-
       versity of London,
    Mr. Loris Marotti, Ph.D. Candidate, University of Macerata,
    Mr. Lucas Lima, Ph.D. Candidate, University of Macerata,
    Mr. Rob van Riet, London,
    Ms Alison E. Chase, Attorney, Santa Barbara,
    as Assistants;
    Mr. Nick Ritchie, Lecturer in International Security, University of York,

    as Technical Adviser,
    and
the Islamic Republic of Pakistan,
represented by
  H.E. Mr. Moazzam Ahmad Khan, Ambassador of the Islamic Republic of
     Pakistan to the Kingdom of the Netherlands,
  as Co-Agent (until 27 September 2016);
  H.E. Ms Iﬀat Imran Gardezi, Ambassador of the Islamic Republic of Paki-
     stan to the Kingdom of the Netherlands,
  as Co-Agent (from 27 September 2016);
  Mr. Ahmer Bilal Sooﬁ, Advocate, Supreme Court of Pakistan,
  as Co-Agent,

    The Court,
    composed as above,
    after deliberation,
    delivers the following Judgment:
  1. On 24 April 2014, the Government of the Republic of the Marshall Islands
(hereinafter the “Marshall Islands” or the “Applicant”) ﬁled in the Registry

7

556            nuclear arms and disarmament (judgment)

of the Court an Application instituting proceedings against the Islamic Republic
of Pakistan (hereinafter “Pakistan” or the “Respondent”), in which it claimed
that:
         “13. Pakistan has not fulﬁlled its obligation under customary interna-
      tional law to pursue in good faith negotiations to cease the nuclear arms
      race at an early date, and instead is taking actions to improve and expand
      its nuclear forces and to maintain them for the indeﬁnite future.

         14. Similarly, Pakistan has not fulﬁlled its obligation under customary
      international law to pursue in good faith negotiations leading to nuclear
      disarmament in all its aspects under strict and eﬀective international con-
      trol, in particular by engaging a course of conduct, the quantitative build-up
      and qualitative improvement of its nuclear forces, contrary to the objective
      of nuclear disarmament.”
   In its Application, the Marshall Islands seeks to found the jurisdiction of the
Court on the declarations made, pursuant to Article 36, paragraph 2, of the
Statute of the Court, by Pakistan on 12 September 1960 (deposited with
the Secretary-General of the United Nations on 13 September 1960), and by
the Marshall Islands on 15 March 2013 (deposited with the Secretary-General
on 24 April 2013).
   2. In accordance with Article 40, paragraph 2, of the Statute, the Registrar
immediately communicated the Application to the Government of Pakistan;
and, under paragraph 3 of that Article, he notiﬁed all other States entitled to
appear before the Court of the Application.
   3. In accordance with Article 31, paragraph 3, of the Statute, the Mar-
shall Islands chose Mr. Mohammed Bedjaoui to sit as judge ad hoc in the case.
The Government of Pakistan did not exercise its right under the same Article to
choose a judge ad hoc.
   4. By a Note Verbale dated 9 July 2014, received in the Registry the same
day, the Pakistani Government indicated, inter alia, that “Pakistan is of the
considered opinion that the ICJ lacks jurisdiction . . . and considers the . . .
Application inadmissible”, and requested the Court “to dismiss this Application
in limine”. At the meeting held by the President of the Court later the same day
with the representatives of the Parties, pursuant to Article 31 of the Rules of
Court, those representatives made known the views of their respective Govern-
ments with regard to questions of procedure in the case, in particular in the light
of the above-mentioned Note Verbale.
   5. By an Order of 10 July 2014, the President of the Court held, pursuant to
Article 79, paragraph 2, of the Rules of Court, that, in the circumstances of the
case, it was necessary ﬁrst of all to resolve the questions of the Court’s jurisdic-
tion and the admissibility of the Application, and that these questions should
accordingly be separately determined before any proceedings on the merits; to
that end, the President decided that the written pleadings should ﬁrst be
addressed to the said questions, and ﬁxed 12 January 2015 and 17 July 2015 as
the respective time-limits for the ﬁling of a Memorial by the Marshall Islands
and a Counter-Memorial by Pakistan. The Memorial of the Marshall Islands
was ﬁled within the time-limit thus prescribed.
   6. By a letter dated 1 April 2015, the Government of the United Kingdom of
Great Britain and Northern Ireland, referring to Article 53, paragraph 1, of the
Rules of Court, asked to be furnished with copies of the pleadings and docu-
ments annexed in the case. Having ascertained the views of the Parties pursuant

8

557            nuclear arms and disarmament (judgment)

to that same provision, the Court decided not to grant this request. By letters
dated 13 July 2015, the Registrar duly informed the Government of the
United Kingdom and the Parties of that decision.
   By a letter dated 26 November 2015, the Government of the Republic of
India, referring to Article 53, paragraph 1, of the Rules of Court, asked to be
furnished with copies of the pleadings and documents annexed in the case. Hav-
ing ascertained the views of the Parties pursuant to that same provision, the
Court decided not to grant this request. By letters dated 26 February 2016, the
Registrar duly informed the Government of India and the Parties of that deci-
sion.
   7. By a Note Verbale dated 2 July 2015, Pakistan requested a six-month
extension of the time-limit for the ﬁling of its Counter-Memorial. By a letter
dated 8 July 2015, the Marshall Islands stated that it could agree to a three-month
extension of the time-limit. By an Order of 9 July 2015, the President of the
Court extended to 1 December 2015 the time-limit for the ﬁling of Pakistan’s
Counter-Memorial. That pleading was duly ﬁled within the time-limit thus
extended.
   8. By a letter dated 2 March 2016, Pakistan informed the Court that it would
not be participating in the oral proceedings on jurisdiction and admissibility,
stating in particular that it “does not feel that its participation in the oral pro-
ceedings will add anything to what has already been submitted through its
Counter-Memorial”.
   9. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings.
   10. A public hearing on the questions of the jurisdiction of the Court and the
admissibility of the Application was held on Tuesday 8 March 2016, at which
the Court heard the oral arguments of:

For the Marshall Islands: H.E. Mr. Tony deBrum,
                          Mr. Phon van den Biesen,
                          Mr. Nicholas Grief,
                          Mr. Luigi Condorelli,
                          Ms Laurie B. Ashton,
                          Mr. Roger S. Clark,
                          Mr. Paolo Palchetti,
                          Mr. John Burroughs.

                                         *
   11. In the Application, the following claims were made by the Marshall
Islands:
         “On the basis of the foregoing statement of facts and law, the Republic
      of the Marshall Islands requests the Court
      to adjudge and declare
      (a) that Pakistan has violated and continues to violate its international
           obligations under customary international law, by failing to pursue in
           good faith and bring to a conclusion negotiations leading to nuclear
           disarmament in all its aspects under strict and eﬀective international

9

558             nuclear arms and disarmament (judgment)

          control, in particular by engaging a course of conduct, the quantitative
          buildup and qualitative improvement of its nuclear forces, contrary to
          the objective of nuclear disarmament;
      (b) that Pakistan has violated and continues to violate its international
          obligations under customary international law with respect to cessation
          of the nuclear arms race at an early date, by taking actions to quanti-
          tatively build up its nuclear forces, to qualitatively improve them, and
          to maintain them for the indeﬁnite future, and by blocking negotiations
          on a Fissile Materials Cut-oﬀ Treaty;

      (c) that Pakistan has failed and continues to fail to perform in good faith
          its obligations under customary international law by taking actions to
          quantitatively build up its nuclear forces, to qualitatively improve them,
          and to maintain them for the indeﬁnite future, and by blocking nego-
          tiations on a Fissile Materials Cut-oﬀ Treaty; and

      (d) that Pakistan has failed and continues to fail to perform in good faith
          its obligations under customary international law by eﬀectively pre-
          venting the great majority of non-nuclear-weapon States from fulﬁlling
          their part of the obligations under customary international law and
          Article VI of the NPT with respect to nuclear disarmament and cessa-
          tion of the nuclear arms race at an early date.

      In addition, the Republic of the Marshall Islands requests the Court
      to order
      Pakistan to take all steps necessary to comply with its obligations under
      customary international law with respect to cessation of the nuclear arms
      race at an early date and nuclear disarmament within one year of the Judg-
      ment, including the pursuit, by initiation if necessary, of negotiations in
      good faith aimed at the conclusion of a convention on nuclear disarmament
      in all its aspects under strict and eﬀective international control.”

  12. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of the Marshall Islands,
in the Memorial on the questions of the jurisdiction of the Court and the admis-
sibility of the Application:
         “In accordance with the Order of the Court of 10 July 2014, this Memo-
      rial is restricted to questions of jurisdiction and admissibility raised by Paki-
      stan. As for the merits of the case, the Applicant maintains its Submissions,
      including the Remedies requested, as set out in the Application of 24 April
      2014. For further stages of the procedure the Applicant reserves its right to
      clarify, modify and/or amend these Submissions.

         On the basis of the foregoing statements of facts and law, the Republic
      of the Marshall Islands requests the Court to adjudge and declare that it
      has jurisdiction with respect to the present case and that the Application is
      admissible.”

10

559            nuclear arms and disarmament (judgment)

On behalf of the Government of Pakistan,
in the Counter-Memorial on the questions of the jurisdiction of the Court and
the admissibility of the Application:
         “The Government of the Islamic Republic of Pakistan respectfully sub-
      mits that the Court should adjudge and declare, for each and all of the
      foregoing reasons, that the claims set forth in the [Marshall Islands’] Appli-
      cation of 24 April 2014 (1) are not within the jurisdiction of the Court and
      (2) are inadmissible.”
 13. In the oral proceedings, the following submissions were presented by the
Government of the Marshall Islands at the hearing of 8 March 2016:
        “The Marshall Islands respectfully requests the Court:
      (a) to reject the objections to its jurisdiction and to the admissibility of the
          Marshall Islands’ claims, as submitted by Pakistan in its Counter-
          Memorial of 1 December 2015;
      (b) to adjudge and declare that the Court has jurisdiction over the claims of
          the Marshall Islands submitted in its Application of 24 April 2014; and
      (c) to adjudge and declare that the Marshall Islands’ claims are admissi-
          ble.”

                                           *
                                       *       *

                                 I. Introduction

                            A. Historical Background
   14. Since the creation of the United Nations, and in line with its Pur-
poses under Article 1 of the Charter, the issue of disarmament has been
central to the Organization’s concerns. In this regard, the Charter gives
three separate bodies a role in international disarmament eﬀorts: the
General Assembly (Art. 11, para. 1), the Security Council (Art. 26) and
the Military Staﬀ Committee (Art. 47, para. 1). The General Assembly
has been active in the ﬁeld of international disarmament generally and
nuclear disarmament in particular. With respect to international disarma-
ment generally, the General Assembly created the ﬁrst United Nations
Disarmament Commission under the Security Council in 1952 (resolu-
tion 502 (VI) of 11 January 1952). In 1978, it held a Special Session on
disarmament, at which it established the current United Nations disarma-
ment mechanisms consisting of: the First Committee of the General
Assembly, the mandate of which was redeﬁned to deal exclusively with
questions of disarmament and related international security questions; a
new Disarmament Commission as a subsidiary organ of the General
Assembly, composed of all Member States of the United Nations (replac-
ing the United Nations Disarmament Commission created in 1952); and
a Committee on Disarmament devoted to negotiations (resolution S-10/2
of 30 June 1978, paras. 117, 118 and 120). The latter was redesignated the

11

560          nuclear arms and disarmament (judgment)

Conference on Disarmament with eﬀect from 1984 (General Assembly
resolution 37/99 K, Part II, of 13 December 1982; Report of the Commit-
tee on Disarmament to the United Nations General Assembly, 1 Septem-
ber 1983, doc. CD/421, para. 21) and now consists of 65 members.

   With respect to nuclear disarmament eﬀorts in particular, it may be
recalled that, in its very ﬁrst resolution, unanimously adopted on 24 Jan-
uary 1946, the General Assembly established a Commission to deal with
“the problems raised by the discovery of atomic energy” (resolution 1 (I)
of 24 January 1946; this Commission was dissolved in 1952 when the ﬁrst
United Nations Disarmament Commission, mentioned above, was estab-
lished). As early as 1954, the General Assembly also called for a conven-
tion on nuclear disarmament (resolution 808 (IX) A of 4 November 1954)
and has repeated this call in many subsequent resolutions. In addition,
the mechanisms set out above, created by the General Assembly in view
of general international disarmament eﬀorts, have also dealt speciﬁcally
with questions of nuclear disarmament.

   15. By resolution 21 of 2 April 1947, the United Nations Secu-
rity Council placed a group of Paciﬁc Islands, including those making up
the present-day Marshall Islands, under the trusteeship system established
by the United Nations Charter, and designated the United States of
America as the Administering Authority. From 1946 to 1958, while
under this trusteeship, the Marshall Islands was the location of repeated
nuclear weapons testing. By resolution 683 of 22 December 1990, the
Security Council terminated the Trusteeship Agreement concerning the
Marshall Islands. By General Assembly resolution 46/3 of 17 September
1991, the Marshall Islands was admitted to membership in the
United Nations.
   16. The Respondent gained independence on 14 August 1947. By Gen-
eral Assembly resolution 108 (II) of 30 September 1947, Pakistan was
admitted to membership in the United Nations. Pakistan conducted at
least two nuclear tests on 28 and 30 May 1998, and is known to possess
nuclear weapons.
   17. Following extensive negotiations in the 1960s, in which both
nuclear-weapon States and non-nuclear-weapon States participated, the
Treaty on the Non-Proliferation of Nuclear Weapons (hereinafter “NPT”)
was opened for signature on 1 July 1968. It entered into force on 5 March
1970 and was extended indeﬁnitely in 1995. Review conferences have been
held every ﬁve years since its entry into force, pursuant to Article VIII,
paragraph 3, of the NPT. One hundred and ninety-one States have
become parties to the NPT; on 10 January 2003, the Democratic People’s
Republic of Korea announced its withdrawal. The Marshall Islands
acceded to the NPT on 30 January 1995; Pakistan has not become a party
to it.

12

561           nuclear arms and disarmament (judgment)

   18. The NPT seeks to limit the proliferation of nuclear weapons and
provides certain rights and obligations for parties designated as
“nuclear-weapon State Part[ies]” and “non-nuclear-weapon State
Part[ies]” (including, inter alia, the right of all States to develop and use
nuclear energy for peaceful purposes, the obligation of nuclear-weapon
States parties not to transfer nuclear weapons to any recipient, and the
obligation of non-nuclear-weapon States parties not to receive such a
transfer). The preamble to the NPT also declares the intention of the par-
ties “to achieve at the earliest possible date the cessation of the nuclear
arms race and to undertake eﬀective measures in the direction of nuclear
disarmament”. In this connection, Article VI of the NPT provides:

         “Each of the Parties to the Treaty undertakes to pursue negotia-
      tions in good faith on eﬀective measures relating to cessation of the
      nuclear arms race at an early date and to nuclear disarmament, and
      on a treaty on general and complete disarmament under strict and
      eﬀective international control.”
For the purposes of the NPT, a “nuclear-weapon State is one which has
manufactured and exploded a nuclear weapon or other nuclear explosive
device prior to 1 January 1967” (Article IX.3). There are ﬁve
nuclear-weapon States under the NPT: China, France, the Russian Fed-
eration, the United Kingdom and the United States of America. In addi-
tion to Pakistan — which, as noted above (see paragraph 17), is not party
to the NPT — certain other States possess, or are believed to possess,
nuclear weapons.
   19. By resolution 49/75 K of 15 December 1994, the General Assembly
requested the International Court of Justice to give an advisory opinion
on whether the threat or use of nuclear weapons is permitted in any cir-
cumstance under international law. In the reasoning of its Advisory
Opinion of 8 July 1996, the Court appreciated “the full importance of the
recognition by Article VI of the [NPT] of an obligation to negotiate in
good faith a nuclear disarmament” (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 263,
para. 99). It added that this obligation went “beyond . . . a mere obliga-
tion of conduct” and was an “obligation to achieve a precise result —
nuclear disarmament in all its aspects — by adopting a particular course
of conduct, namely, the pursuit of negotiations on the matter in good
faith” (ibid., p. 264, para. 99). The Court stated that “[t]his twofold obli-
gation to pursue and to conclude negotiations formally concerns [all]
States parties to the [NPT], or, in other words, the vast majority of the
international community”, adding that “any realistic search for general
and complete disarmament, especially nuclear disarmament, necessitates
the co-operation of all States” (ibid., para. 100). In the conclusions of the
Advisory Opinion, the Court unanimously declared that “[t]here exists an
obligation to pursue in good faith and bring to a conclusion negotiations

13

562           nuclear arms and disarmament (judgment)

leading to nuclear disarmament in all its aspects under strict and eﬀective
international control” (I.C.J. Reports 1996 (I), p. 267, para. 105 (2) F).

  20. In its resolution 51/45 M of 10 December 1996, the General Assem-
bly “[u]nderline[d] the unanimous conclusion of the Court that there
exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict
and eﬀective international control” and
      “[c]all[ed] upon all States to fulﬁl that obligation immediately by com-
      mencing multilateral negotiations in 1997 leading to an early conclu-
      sion of a nuclear-weapons convention prohibiting the development,
      production, testing, deployment, stockpiling, transfer, threat or use
      of nuclear weapons and providing for their elimination”.

The General Assembly has passed a similar resolution on the follow-up to
the Court’s Advisory Opinion every year since then. It has also passed
numerous other resolutions encouraging nuclear disarmament.

                  B. Proceedings Brought before the Court
   21. On 24 April 2014, the Marshall Islands ﬁled, in addition to the pres-
ent Application (see paragraph 1 above), separate applications against the
eight other States which, according to the Marshall Islands, possess
nuclear weapons (China, the Democratic People’s Republic of Korea,
France, India, Israel, the Russian Federation, the United Kingdom of
Great Britain and Northern Ireland and the United States of America),
also alleging a failure to fulﬁl obligations concerning negotiations relating
to the cessation of the nuclear arms race at an early date and to nuclear
disarmament. The cases against India, Pakistan and the United Kingdom
of Great Britain and Northern Ireland were entered in the Court’s General
List, as the Applicant had invoked these States’ declarations recognizing
the compulsory jurisdiction of the Court (pursuant to Article 36, para-
graph 2, of the Statute of the Court) as a basis for jurisdiction. In the
applications against China, the Democratic People’s Republic of Korea,
France, Israel, the Russian Federation and the United States of America,
the Marshall Islands invited these States to accept the jurisdiction of the
Court, as contemplated in Article 38, paragraph 5, of the Rules of Court,
for the purposes of the case. None of these States has done so. Accord-
ingly, these applications were not entered in the Court’s General List.
   22. In its Note Verbale dated 9 July 2014 (see paragraph 4 above) and
in its Counter-Memorial, Pakistan raised several objections to the Court’s
jurisdiction or the admissibility of the Application. In particular, it argues
that:
— the Marshall Islands has failed to show that there was, at the time of
  the ﬁling of the Application, a legal dispute between the Parties with

14

563          nuclear arms and disarmament (judgment)

  respect to an alleged failure to pursue negotiations in good faith
  towards the cessation of the nuclear arms race at an early date and
  nuclear disarmament;
— the Court’s jurisdiction is precluded by a number of reservations
  in the Parties’ declarations under Article 36, paragraph 2, of the Stat-
  ute;
— the Court is prevented from exercising its jurisdiction in this case, on
  account of the absence from the proceedings of “indispensable par-
  ties”, in particular the other States possessing nuclear weapons;
— the Marshall Islands does not have standing to bring the claims for-
  mulated in the Application; and
— the Application is inadmissible for other reasons, for instance because
  a judgment on the merits in the present case would be devoid of any
  practical legal eﬀect.
   23. In its Memorial and its ﬁnal submissions presented during the oral
proceedings, the Marshall Islands requested the Court to reject the objec-
tions of Pakistan in their entirety and to ﬁnd that it has jurisdiction and
that the Application is admissible (see paragraphs 12 and 13 above).

  24. The Court will ﬁrst consider the objection based on the absence of
a dispute.

                                      *
                                  *       *

        II. The Objection Based on the Absence of a Dispute

   25. The Marshall Islands claims there exists a legal dispute between
itself and Pakistan concerning the latter’s failure to comply with what the
Applicant maintains is a customary law obligation to pursue in good
faith, and to bring to a conclusion, negotiations leading to nuclear disar-
mament in all its aspects under strict and eﬀective international control,
as well as a customary law obligation concerning the cessation of the
nuclear arms race at an early date.

   26. The Marshall Islands contends that the Parties’ statements and
conduct before and after the ﬁling of the Application demonstrate the
existence of such a dispute. It recalls that, prior to seising the Court on
24 April 2014, it had called on nuclear-weapon States to abide by their
obligation to negotiate towards nuclear disarmament. The Marshall
Islands refers in particular to two statements. The ﬁrst one was made
on 26 September 2013 at the High-Level Meeting of the General Assem-
bly on Nuclear Disarmament, when its Minister for Foreign Aﬀairs
“urge[d] all nuclear weapons states to intensify eﬀorts to address their
responsibilities in moving towards an eﬀective and secure disarmament”.

15

564           nuclear arms and disarmament (judgment)

The second one was made by its representative at Nayarit, Mexico, on
13 February 2014, in the context of the Second Conference on the
Humanitarian Impact of Nuclear Weapons. This second statement, which
the Marshall Islands regards as clearly demonstrating the content of its
claim against all States possessing nuclear arsenals, reads as follows:

         “[T]he Marshall Islands is convinced that multilateral negotiations
      on achieving and sustaining a world free of nuclear weapons are long
      overdue. Indeed we believe that States possessing nuclear arsenals are
      failing to fulﬁl their legal obligations in this regard. Immediate com-
      mencement and conclusion of such negotiations is required by legal
      obligation of nuclear disarmament resting upon each and every State
      under Article VI of the Non-Proliferation Treaty and customary
      international law.”

The Marshall Islands maintains that, by this public statement, made in
the context of an international conference in the presence of Pakistan, the
latter “was made aware that the [Marshall Islands] believed that its failure
to seriously engage in multilateral negotiations amounted to a breach of
its international obligations under customary international law”. In its
view, this statement, as well as the overall position it has taken on the
issue of nuclear disarmament in recent years, is clear evidence that
the Marshall Islands had raised a dispute “with each and every one of the
States possessing nuclear weapons, including with Pakistan”.

   27. The Marshall Islands adds that Pakistan has explicitly disputed the
claim that it was under any international obligation regarding nuclear
disarmament in the current proceedings. It argues that, by expressing its
opposition to the Marshall Islands before the Court, Pakistan has con-
ﬁrmed the existence of a legal dispute between the Parties. In this connec-
tion, the Marshall Islands avers that, according to the Court’s established
case law, while the “dispute must in principle exist at the time the Appli-
cation is submitted”, it may also be evidenced by the positions of the
parties before the Court (e.g., Certain Property (Liechtenstein v. Ger-
many), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 19,
para. 25; Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 317, para. 93; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla-
via), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
pp. 614-615, para. 29). It also suggests that the Court’s use of the phrase
“in principle” leaves open the possibility that a legal dispute could even
come into being after a party seises the Court. Nevertheless, the Mar-
shall Islands considers that, at the moment of the ﬁling of the Application
in the present case, a legal dispute already existed.

16

565          nuclear arms and disarmament (judgment)

   28. The Marshall Islands further contends that Pakistan has opposed
the claims made against it by its conduct. In particular, the Applicant
maintains that, while the Respondent has “frequently” reaﬃrmed in pub-
lic statements its commitment to nuclear disarmament, it has in fact
engaged in a course of conduct consisting of the “quantitative build-up”
and the “qualitative improvement” of its nuclear arsenal. In its Applica-
tion, the Marshall Islands also refers to Pakistan’s alleged blockage of
negotiations on a Fissile Materials Cut-oﬀ Treaty.
   29. The Marshall Islands rejects the existence of any rule or principle
of international law that requires the exhaustion of negotiations or any
other forms of communication before seising the Court. It adds that
Pakistan was informed of the claim prior to the ﬁling of the Application
through the public statements of the Marshall Islands’ representatives
(in particular those made at Nayarit in February 2014), as explained
above.

                                     *
   30. Pakistan, for its part, considers that there was no legal dispute with
the Marshall Islands at the time the Application was ﬁled. In Pakistan’s
view, the Marshall Islands has failed to set out any claims with suﬃcient
clarity for Pakistan to have been aware of the existence of a dispute with
the Applicant.
   31. In particular, Pakistan contends that the “brief” statements made
by the Marshall Islands on 26 September 2013 and on 13 February 2014
(see paragraph 26 above) were not directed speciﬁcally at Pakistan and
did not identify the subject-matter of any dispute between them. In addi-
tion, Pakistan notes the inconsistency in the positions taken by the Mar-
shall Islands at the General Assembly in respect of nuclear disarmament:
while Pakistan voted in favour of the resolutions entitled “Follow-up to
the Advisory Opinion of the International Court of Justice in the Legality
of the Threat or Use of Nuclear Weapons”, the Marshall Islands abstained
from voting on several occasions before 2013.
   32. Pakistan also notes the absence of any relevant diplomatic
exchanges between the Parties prior to the seisin of the Court. In its view,
this demonstrates that no positively opposed claims exist in the present
case. Recognizing that the determination of whether a dispute exists is a
matter of substance and not of form, the Respondent nonetheless con-
tends that in every case in which the Court has found a dispute to exist, it
has been possible for it to point to some prior correspondence, communi-
cation or negotiation between the parties on the issues in dispute. More-
over, recalling the Court’s decision in the Georgia v. Russia case
(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), p. 84, para. 30),
Pakistan claims that the exchanges between the Parties must be suﬃciently

17

566          nuclear arms and disarmament (judgment)

clear in order for the Respondent to identify the existence of a dispute.
Since no such exchange took place in the present case, a dispute between
the Marshall Islands and Pakistan could not have arisen or “crystallized”
as a consequence of, or after, the Application. Pakistan further criticizes
the Marshall Islands’ reliance on the Court’s Judgment in Cameroon v.
Nigeria, in which the Court aﬃrmed that the existence of a dispute could
be inferred from the conduct of the parties regardless of their professed
views (Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 315, para. 89). According to Pakistan, that Judgment was ren-
dered in a diﬀerent context and is not relevant in the present case.

                                   *   *
   33. Under Article 38 of the Statute, the function of the Court is to
decide in accordance with international law disputes that States submit to
it. Under Article 36, paragraph 2, of the Statute, the Court has jurisdic-
tion in all “legal disputes” that may arise between States parties to the
Statute having made a declaration in accordance with that provision. The
existence of a dispute between the Parties is thus a condition of the
Court’s jurisdiction.
   34. According to the established case law of the Court, a dispute is “a
disagreement on a point of law or fact, a conﬂict of legal views or of
interests” between parties (Mavrommatis Palestine Concessions, Judgment
No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to
exist, “[i]t must be shown that the claim of one party is positively opposed
by the other” (South West Africa (Ethiopia v. South Africa; Liberia v.
South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 328). The two sides must “‘hold clearly opposite views concerning the
question of the performance or non-performance of certain’ international
obligations” (Alleged Violations of Sovereign Rights and Maritime Spaces
in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, citing Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advi-
sory Opinion, I.C.J. Reports 1950, p. 74).

   35. The Court’s determination of the existence of a dispute is a matter
of substance, and not a question of form or procedure (cf. Application of
the International Convention on the Elimination of All Forms of Racial Dis-
crimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30; Interpretation of Judg-
ments Nos. 7 and 8 (Factory at Chorzów) (Germany v. Poland), Judgment
No. 11, 1927, P.C.I.J., Series A, No. 13, pp. 10-11). Prior negotiations are
not required where the Court has been seised on the basis of declarations
made pursuant to Article 36, paragraph 2, of its Statute, unless one of the
relevant declarations so provides (Land and Maritime Boundary between

18

567            nuclear arms and disarmament (judgment)

Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 322, para. 109). Moreover, “although a
formal diplomatic protest may be an important step to bring a claim of
one party to the attention of the other, such a formal protest is not a
necessary condition” for the existence of a dispute (Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 32, para. 72). Similarly, notice of an intention to ﬁle a case is not
required as a condition for the seisin of the Court (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi-
nary Objections, Judgment, I.C.J. Reports 1998, p. 297, para. 39).

   36. Whether a dispute exists is a matter for objective determination by
the Court which must turn on an examination of the facts (Alleged Viola-
tions of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nica-
ragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2016 (I), p. 26, para. 50). For that purpose, the Court takes into account
in particular any statements or documents exchanged between the parties
(Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 443-445, paras. 50-55),
as well as any exchanges made in multilateral settings (Application of the
International Convention on the Elimination of All Forms of Racial Dis-
crimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011 (I), p. 94, para. 51; p. 95, para. 53). In so
doing, it pays special attention to “the author of the statement or docu-
ment, their intended or actual addressee, and their content” (ibid., p. 100,
para. 63).
   37. The conduct of the parties may also be relevant, especially when
there have been no diplomatic exchanges (Alleged Violations of Sovereign
Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colom-
bia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32-33,
paras. 71 and 73). As the Court has aﬃrmed,
      “a disagreement on a point of law or fact, a conﬂict of legal views or
      interests, or the positive opposition of the claim of one party by the
      other need not necessarily be stated expressis verbis . . . [T]he position
      or the attitude of a party can be established by inference, whatever
      the professed view of that party.” (Land and Maritime Boundary
      between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
      Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.)

In particular, the Court has previously held that “the existence of a dis-
pute may be inferred from the failure of a State to respond to a claim in
circumstances where a response is called for” (Application of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 84, para. 30, citing Land and Maritime Bound-

19

568           nuclear arms and disarmament (judgment)

ary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89).
   38. The evidence must show that the parties “hold clearly opposite
views” with respect to the issue brought before the Court (see para-
graph 34 above). As reﬂected in previous decisions of the Court in which
the existence of a dispute was under consideration, a dispute exists when
it is demonstrated, on the basis of the evidence, that the respondent was
aware, or could not have been unaware, that its views were “positively
opposed” by the applicant (Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32, para. 73; Appli-
cation of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2011 (I), p. 99, para. 61, pp. 109-110,
para. 87, p. 117, para. 104).

   39. In principle, the date for determining the existence of a dispute is
the date on which the application is submitted to the Court (Alleged Vio-
lations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2016 (I), p. 27, para. 52; Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I),
p. 85, para. 30). Indeed, when it is stated in Article 38, paragraph 1, of the
Court’s Statute that the Court’s function is “to decide in accordance with
international law such disputes as are submitted to it”, this relates to dis-
putes existing at the time of their submission.
   40. Conduct subsequent to the application (or the application itself)
may be relevant for various purposes, in particular to conﬁrm the exis-
tence of a dispute (East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 100, para. 22 and p. 104, para. 32), to clarify its
subject-matter (Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports
2015 (II), p. 602, para. 26) or to determine whether the dispute has disap-
peared as of the time when the Court makes its decision (Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270-271,
para. 55; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports
1974, p. 476, para. 58).
   However, neither the application nor the parties’ subsequent conduct
and statements made during the judicial proceedings can enable the Court
to ﬁnd that the condition of the existence of a dispute has been fulﬁlled in
the same proceedings (Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II),
pp. 444-445, paras. 53-55). If the Court had jurisdiction with regard to
disputes resulting from exchanges in the proceedings before it, a respon-
dent would be deprived of the opportunity to react before the institution
of proceedings to the claim made against its own conduct. Furthermore,

20

569           nuclear arms and disarmament (judgment)

the rule that the dispute must in principle exist prior to the ﬁling of the
application would be subverted.

                                    *   *
   41. The Court notes that the Marshall Islands, by virtue of the suﬀer-
ing which its people endured as a result of it being used as a site for exten-
sive nuclear testing programs, has special reasons for concern about
nuclear disarmament (see paragraph 15 above). But that fact does not
remove the need to establish that the conditions for the Court’s jurisdic-
tion are met. While it is a legal matter for the Court to determine whether
it has jurisdiction, it remains for the Applicant to demonstrate the facts
underlying its case that a dispute exists (Border and Transborder Armed
Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1988, p. 75, para. 16).

   42. As noted above at paragraph 32, Pakistan relies on the fact that
the Marshall Islands did not commence negotiations or give notice to it
of the claim that is the subject of the Application to support its conten-
tion that there is no dispute between the Parties. However, the Court has
rejected the view that notice or prior negotiations are required where it
has been seised on the basis of declarations made pursuant to Article 36,
paragraph 2, of the Statute, unless one of those declarations so provides.
The Court’s jurisprudence treats the question of the existence of a dispute
as a jurisdictional one that turns on whether there is, in substance, a dis-
pute, not on what form that dispute takes or whether the respondent has
been notiﬁed (see paragraph 35 above).

   43. The Marshall Islands seeks to demonstrate that it had a dispute
with Pakistan in essentially three ways. First, it refers to its own state-
ments, as formulated in multilateral fora. Secondly, it argues that the very
ﬁling of the Application, as well as the positions expressed by the Parties
in the current proceedings, show the existence of a dispute between the
Parties. Thirdly, it relies on Pakistan’s conduct both before and after the
ﬁling of the Application.

   44. The Marshall Islands does not refer to any bilateral diplomatic
exchanges or oﬃcial communications between it and Pakistan, or to any
bilateral consultations or negotiations that have taken place, concerning
the alleged breach of Pakistan’s obligations.
   45. The Marshall Islands refers to two statements made in multilateral
fora before the date of the ﬁling of its Application which, in its view, suf-
ﬁce to establish the existence of a dispute. As the Court has already
explained, the opposition of the Parties’ views could also be demonstrated
by exchanges made in multilateral settings (see paragraph 36 above). In
such a setting, however, the Court must give particular attention, inter

21

570           nuclear arms and disarmament (judgment)

alia, to the content of a party’s statement and to the identity of the
intended addressees, in order to determine whether that statement,
together with any reaction thereto, show that the parties before it held
“clearly opposite views” (see paragraphs 34 and 36 above). The question
in this case is therefore whether the statements invoked by the Marshall
Islands are suﬃcient to demonstrate the existence of such opposition.

   46. The Marshall Islands relies on the statement made at the High-Level
Meeting of the General Assembly on Nuclear Disarmament, on 26 Sep-
tember 2013 by its Minister for Foreign Aﬀairs, “urg[ing] all nuclear
weapons states to intensify eﬀorts to address their responsibilities in mov-
ing towards an eﬀective and secure disarmament”. However, this state-
ment is formulated in hortatory terms and cannot be understood as an
allegation that Pakistan (or any other nuclear power) was in breach of
any of its legal obligations. It does not mention the obligation to negoti-
ate, nor does it say that the nuclear-weapon States are failing to meet
their obligations in this regard. It suggests that they are making “eﬀorts”
to address their responsibilities, and calls for an intensiﬁcation of those
eﬀorts, rather than deploring a failure to act. Moreover, a statement can
give rise to a dispute only if it refers to the subject-matter of a claim “with
suﬃcient clarity to enable the State against which [that] claim is made to
identify that there is, or may be, a dispute with regard to that subject-
matter” (Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85,
para. 30). While the Court reached that conclusion in the context of a
compromissory clause, the same reasoning applies to a dispute over
a customary international law obligation regardless of the underlying
jurisdictional basis alleged, since the Court made clear that it was
dealing with the requirements of a dispute in general (ibid., p. 84,
para. 29). The 2013 statement relied upon by the Marshall Islands does
not meet these requirements.

  47. The statement made by the Marshall Islands at the Nayarit confer-
ence on 13 February 2014 (see paragraph 26 above) goes further than the
2013 statement, in that it contains a sentence asserting that “States pos-
sessing nuclear arsenals are failing to fulﬁl their legal obligations” under
Article VI of the NPT and customary international law. Pakistan was
present at the Nayarit conference. However, the subject of the conference
was not speciﬁcally the question of negotiations with a view to nuclear
disarmament, but the broader question of the humanitarian impact of
nuclear weapons, and while this statement contains a general criticism of
the conduct of all nuclear-weapon States, it does not specify the conduct
of Pakistan that gave rise to the alleged breach. Such a speciﬁcation
would have been particularly necessary if, as the Marshall Islands con-

22

571          nuclear arms and disarmament (judgment)

tends, the Nayarit statement was aimed at invoking the international
responsibility of the Respondent on the grounds of a course of conduct
which had remained unchanged for many years. Given its very general
content and the context in which it was made, that statement did not call
for a speciﬁc reaction by Pakistan. Accordingly, no opposition of views
can be inferred from the absence of any such reaction. The Nayarit state-
ment is insuﬃcient to bring into existence, between the Marshall Islands
and Pakistan, a speciﬁc dispute as to the existence or scope of the asserted
customary international law obligations to pursue in good faith, and to
bring to a conclusion, negotiations leading to nuclear disarmament in all
its aspects under strict and eﬀective international control, as well as to
cease the nuclear arms race at an early date, or as to Pakistan’s compli-
ance with any such obligations.

   48. In all the circumstances, on the basis of those statements — whether
taken individually or together — it cannot be said that Pakistan was
aware, or could not have been unaware, that the Marshall Islands was
making an allegation that Pakistan was in breach of its obligations.
   49. Secondly, the Marshall Islands argues that the very ﬁling of the
Application could suﬃce to establish the existence of a dispute. It also
points to other statements made in the course of the proceedings by both
Parties as evidence of their opposition of views.
   50. The Marshall Islands relies on three cases in support of its conten-
tion that the statements made by the Parties during the proceedings may
serve to evidence the existence of a dispute (see paragraph 27 above).
However, these cases do not support this contention. In the case concern-
ing Certain Property, the existence of a dispute was clearly referenced by
bilateral exchanges between the parties prior to the date of the Applica-
tion (Certain Property (Liechtenstein v. Germany), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2005, p. 19, para. 25). The reference to
subsequent materials in the Cameroon v. Nigeria case related to the scope
of the dispute, not to its existence (Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 317, para. 93). Moreover, while it is
true that the Court did not explicitly reference any evidence before the
ﬁling of the application demonstrating the existence of a dispute in its
Judgment in the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), in the particular context of that case, which
involved an ongoing armed conﬂict, the prior conduct of the parties was
suﬃcient to establish the existence of a dispute (Preliminary Objections,
Judgment, I.C.J. Reports 1996 (II), p. 614, paras. 27-29). Instead, the
issues the Court focused on were not the date when the dispute arose but
the proper subject-matter of that dispute, whether it fell within the scope
of the relevant compromissory clause, and whether it “persist[ed]” at the
date of the Court’s decision. As stated above, although statements made

23

572          nuclear arms and disarmament (judgment)

or claims advanced in or even subsequently to the application may be
relevant for various purposes — notably in clarifying the scope of the
dispute submitted — they cannot create a dispute de novo, one that does
not already exist (see paragraph 40 above).

   51. Thirdly, the Marshall Islands argues that, irrespective of verbal
support for negotiations on nuclear disarmament on the part of Pakistan,
its actual conduct in maintaining and upgrading its nuclear arsenal, and
in failing to co-operate with certain diplomatic initiatives, allows the
Court to infer the existence of a dispute as to the scope of and compliance
with its obligations, even if such a dispute had not, prior to the Applica-
tion, been articulated in legal terms by the Marshall Islands.

   52. The Court recalls that the question whether there is a dispute in a
particular contentious case turns on the evidence of opposition of views
(see paragraphs 34, 36 and 37 above). In this regard, the conduct of a
respondent can contribute to a ﬁnding by the Court that the views of the
parties are in opposition (see paragraph 37 above). However, as the Court
has previously concluded (see paragraphs 46-48 above), in the present
case neither of the statements that were made in a multilateral context by
the Marshall Islands oﬀered any particulars regarding Pakistan’s con-
duct. On the basis of such statements, it cannot be said that Pakistan was
aware, or could not have been unaware, that the Marshall Islands was
making an allegation that Pakistan was in breach of its obligations. In
this context, the conduct of Pakistan does not provide a basis for ﬁnding
a dispute between the two States before the Court.

   53. Finally, regarding Pakistan’s argument based on the Parties’ voting
records on General Assembly resolutions on nuclear disarmament (see
paragraph 31 above), the Court notes that considerable care is required
before inferring from votes cast on resolutions before political organs
such as the General Assembly conclusions as to the existence or not of a
legal dispute on some issue covered by a resolution. The wording of a
resolution, and votes or patterns of voting on resolutions of the same
subject-matter, may constitute relevant evidence of the existence of a dis-
pute in some circumstances, particularly where statements were made by
way of explanation of vote. However, some resolutions contain a large
number of diﬀerent propositions; a State’s vote on such resolutions can-
not by itself be taken as indicative of the position of that State on each
and every proposition within that resolution, let alone of the existence of
a legal dispute between that State and another State regarding one of
those propositions.

                                   *   *

24

573          nuclear arms and disarmament (judgment)

   54. The Court therefore concludes that the ﬁrst objection made by
Pakistan must be upheld. It follows that the Court does not have jurisdic-
tion under Article 36, paragraph 2, of its Statute.

  55. Consequently, it is not necessary for the Court to deal with the
other objections raised by Pakistan. The questions of the existence of and
extent of customary international law obligations in the ﬁeld of nuclear
disarmament, and Pakistan’s compliance with such obligations, pertain to
the merits. But the Court has found that no dispute existed between the
Parties prior to the ﬁling of the Application, and consequently it lacks
jurisdiction to consider these questions.

                                      *
                                  *       *

  56. For these reasons,
  The Court,
  (1) By nine votes to seven,
  Upholds the objection to jurisdiction raised by Pakistan, based on the
absence of a dispute between the Parties;
  in favour: President Abraham; Vice-President Yusuf; Judges Owada,
    Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;
  against: Judges Tomka, Bennouna, Cançado Trindade, Sebutinde, Robinson,
    Crawford; Judge ad hoc Bedjaoui;
  (2) By ten votes to six,
  Finds that it cannot proceed to the merits of the case.
  in favour: President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
     Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;

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

   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this ﬁfth day of October, two thousand and
sixteen, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of
the Marshall Islands and the Government of the Islamic Republic of
Pakistan, respectively.

                                               (Signed) Ronny Abraham,
                                                           President.
                                              (Signed) Philippe Couvreur,
                                                             Registrar.

25

574         nuclear arms and disarmament (judgment)

  President Abraham and Vice-President Yusuf append declarations to
the Judgment of the Court; Judges Owada and Tomka append separate
opinions to the Judgment of the Court; Judges Bennouna and Cançado
Trindade append dissenting opinions to the Judgment of the Court;
Judges Xue, Donoghue and Gaja append declarations to the Judgment
of the Court; Judges Sebutinde and Bhandari append separate opinions
to the Judgment of the Court; Judges Robinson and Crawford append
dissenting opinions to the Judgment of the Court; Judge ad hoc Bedjaoui
appends a dissenting opinion to the Judgment of the Court.

                                                   (Initialled) R.A.
                                                   (Initialled) Ph.C.

26


178

SEPARATE OPINION OF JUDGE SETTE-CAMARA

I fully subscribe to the decision and operative part of the Advisory
Opinion, but, since my reasoning deals with some points not contemplated
by the Court, I feel myself bound to append a separate opinion setting out
my views.

There is no doubt about the right of the World Health Organization to
resort to an advisory opinion of the Court in matters related to the inter-
pretation of the Agreement of 25 March 1951 between the World Health
Organization and Egypt. This right is based on Article 96, paragraph 2, of
the Charter of the United Nations, Article 65, paragraph 1, of the Statute
of the Court and Article X, paragraph 2, of the Agreement between the
World Health Organization and the United Nations adopted by the First
World Health Assembly on 15 November 1947. Moreover Article 76 of the
Constitution of the World Health Organization expressly reserves such
right to the Organization. The advisory jurisdiction of the Court is there-
fore properly resorted to and soundly established. On the other hand,
notwithstanding the discretionary nature of the Court’s power to give
advisory opinions, in its whole existence there has been no instance in
which this power was exercised in a negative way. In pursuance of its
longstanding jurisprudence, the Court could hardly refuse to comply with
the request of the World Health Organization.

It is equally clear that the request is related to a “legal question”, namely
the interpretation of a treaty clause, and that there is no “legal question
actually pending” between the parties. The Court was confronted with
copious evidence of profound discrepancies of view among the States
belonging to the Eastern Mediterranean regional organization, and among
other States in the World Health Assembly, regarding the proposed trans-
fer of the Eastern Mediterranean Regional Office from Alexandria. But
those are disputes, occurring within the organs of an international
organization, which do not concern the Court at least until they reach the
stage at which they are projected into the treaty relationship between the
World Health Organization and Egypt.

Tam convinced that the Advisory Opinion is right when in paragraph 35,
it goes beyond the strict and narrow formulation of the questions put to it
by resolution WHA33.16 to investigate and consider the true legal ques-
tion behind the request. As the Court rightly points out,

“if it is to remain faithful to the requirements of its judicial character
in the exercise of its advisory jurisdiction it must ascertain what are

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the legal questions really in issue in questions formulated in a
request”,

for fear that

“a reply to questions of the kind posed in the present request may if
incomplete, be not only ineffectual but actually misleading as to the
legal rules applicable to the matter under consideration”.

The broad consideration of all the pertinent legal issues involved, even if
that would mean to go beyond the limited phraseology of the questions
contained in the request, is consistent with the jurisprudence of the Court.
The Permanent Court of International Justice already went so far as to
admit the procedure of expanding the context of some submissions even
in contentious cases. Indeed in Judgment 11, /uterpretation of Judgments
Nos. 7 and 8 (Factory at Chorzéw), the Court stated :

“In so doing the Court does not consider itself as bound simply to
reply ‘yes’ or ‘no’ to the propositions formulated in the submissions of
the German Applications. It adopts this attitude because, for the
purpose of the interpretation of a judgment it cannot be bound by
formulae chosen by the Parties concerned, but must be able to take an
unhampered decision.” (P.C.I.J., Series A, No. 13, p. 15.)

On the next page it added :

“C nstrued in any other way, the Application in question would
not satisfy the express conditions laid down by the above-mentioned
artic e ; and the Court, as it has already had occasion to observe in
pre ious judgments, may within reasonable limits disregard the
de ects of form of documents placed before it.”

Like\ ise in the Advisory Opinion on the Delimitation of the Polish-
Czechos. wakian Frontier, the so-called Jaworzina case (P.C.I.J., Series B,
No. 8, p. \0), the Permanent Court held :

“Av cording to the actual language of the preamble of the request,
the question upon which the Court is asked for an advisory opinion
principally concerns the frontier in the region of Spisz, and the written
and oral information supplied bears almost entirely on this point.
Nevertheless the Court feels obliged to express an opinion upon the
Polish case, and consequently upon the frontiers in the Duchy of
Teschen and the territory of Orava, in so far as the delimitation of the
frontier in those regions and in the territory of Spisz may be inter-
dependent. In drafting the Request, the Council made a point of
referring expressly to the conclusions of the respective cases submit-
ted by the two parties, and the discussion which took place in the
Council of the League of Nations, as well as the general terms in which
the question itself is stated, appear to indicate that the opinion should
embrace the whole range of the cases submitted.”

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Again in the Advisory Opinion on Competence of the International
Labour Organisation (P.C.I.JT., Series B, Nos. 2 and 3, p. 59) the Permanent
Court decided to restrict the meaning of the request for advisory opinion
presented to it. It then stated :

“The words used imply that the ‘other questions’ are to be questions
essentially of the same nature for the present purpose as that of the
organisation and development of means of production ; but such
‘other questions’ are not specified, and the Court does not undertake
to say what they may be.”

The International Court of Justice, in the Advisory Opinion on Admis-
sibility of Hearings of Petitioners by the Committee on South West Africa
(1. CJ. Reports 1956, p. 26), did not depart from this jurisprudence. It
stated :

“It was in these circumstances that the question was submitted to
the Court. While the question in terms refers to the grant of oral
hearings by the Committee, the Court interprets it as meaning :
whether it is legally open to the General Assembly to authorize the
Committee to grant oral hearings to petitioners. The Court must
therefore deal with the broader question as to whether it would be
consistent with its previous Opinion of 11 July 1950 for the General
Assembly to authorize the Committee on South West Africa to grant
oral hearings to petitioners.”

Moreover in the Advisory Opinion on Certain Expenses of the United
Nations (1.C.J. Reports 1962, pp. 157 f.) the Court found :

“Although the Court will examine Article 17 in itself and in its
relation to the rest of the Charter, it should be noted that at least three
separate questions might arise in the interpretation of paragraph 2 of
this Article. One question is that of identifying what are the ‘expenses
of the Organization’: a second question might concern apportion-
ment by the General Assembly ; while a third question might involve
the interpretation of the phrase ‘shall be borne by the Members’. It is
the second and third questions which directly involve ‘the financial
obligations of the Members’, but it is only the first question which is
posed by the request for the advisory opinion. The question put to the
Court has to do with a moment logically anterior to apportionment,
just as a question of apportionment would be anterior to a question of
Members’ obligation to pay.”

And the Court concluded :

“It has been asked to answer a specific question related to certain

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identified expenditures which have actually been made, but the Court
would not adequately discharge the obligation incumbent on it unless
it examined in some detail various problems raised by the question
which the General Assembly has asked.” (/bid., p. 158.)

Contrary to the assertion in some quarters, the WHO or indeed any
international organization, has the right to remove its regional offices.

In the light of Articles 43, 44, 45 and 46 of the Constitution of the World
Health Organization it seems indisputable that the Organization enjoys an
unfettered right to decide on the location of its headquarters and the
headquarters of its regional committees and regional offices. Indeed it
would run counter to the actual texts of the majority of the constitutions or
international organizations to deny the latter such right, including the right
to transfer their headquarters and the sites of their organs if they so deem
fit. On this point it is enough to recall Section 23 of the United Nations
Headquarters Agreement, which gives to the Organization the unilateral
right to decide on the permanence of its headquarters in New York, and
Section 24, which provides :

“This agreement shall cease to be in force if the seat of the United
Nations is removed from the territory of the United States, except for
such provisions as may be applicable in connection with the orderly
termination of the operations of the United Nations at its seat in the
United States and the disposition of the property therein.”

Indeed the Lake Success Agreement of 1947 neither contains any provision
for denunciation nor lays down periods of notice for the termination of the
treaty. If that is so with what — considering the huge interests involved in
one side or the other — is the most important of headquarters agreements,
it would be extraordinary to contend that a denunciation clause with a
prescribed period of notice for termination of the treaty is indispensable in
treaties between international organizations and host countries relating to
the location of headquarters.

Moreover I do not believe that agreements of that kind enshrine an
obligation on the part of the Organization to keep their offices operating in
the territory of the host State. In the 1951 WHO-Egypt Agreement the
obligations of the Organization are clearly spelled out in Sections 26
(privileges and immunities granted only in the interests of the organiza-
tion), 31 (respect for the security of the Egyptian Government), 32 and 33
(co-operation for the settlement of loca! disputes), and 34 (settlement of
disputes relating to the agreement). No provision exists according to which
the Organization is bound to keep its office operating in Egypt. In fact,
even if the possibility of transfer is disregarded it might happen that for
different reasons the Organization would find it necessary to discontinue

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the operation of its regional organ. And it seems that nothing in the 1951
Agreement would constitute a legal obstacle to a decision of such a
kind.

Again on the matter of integration, issue may be joined with those who
make too much of it. As one deals with the constitutional problems of the
WHO underlying the question before the Court, attention should be paid
to the so-called “integration” of the Alexandria Sanitary Bureau under
Article 54 of the Constitution. Article 54 is mainly concerned with the Pan
American Sanitary Organization, represented by the Pan American Sani-
tary Bureau and the Pan American Sanitary Conferences, which should
be “in due course integrated with the Organization”, as well as all other
inter-governmental regional health organizations (emphasis supplied). The
article adds that “this integration should be effected as soon as practicable
through common action based on mutual consent of the competent autho-
rities, expressed through the organizations concerned” (emphasis supplied).
The Sanitary, Maritime and Quarantine Board of Egypt, or the Egyptian
Quarantine Board, lost its inter-governmental character on the conclusion
of the Paris International Sanitary Convention of 31 October 1938, whose
Article | stipulated :

“The Sanitary, Maritime and Quarantine Board of Egypt shall be
abolished and its functions shall be performed by the Egyptian sani-
tary authorities in pursuance of the provisions of the International
Sanitary Convention of 1926, as amended under the terms of Article 2
below. The transfer of services shall take place three months after the
entry into force of the present Convention.”

Appended to the Convention appeared a Declaration by the delegation
of the Royal Egyptian Government accepting the new responsibilities
including the engagement to retain, “in the capacity of Egyptian officials”,
foreign experts and foreign permanent officials.

Moreover, when the text of Article 54 was drafted during the New York
1946 International Health Assembly the main problem considered was the
situation of the Pan American Sanitary Bureau. The only delegation to
raise the question of the Alexandria Sanitary Bureau was the Egyptian
delegation (see WHO, Official Records, No. 1, p. 24). Neither of the two
alternative texts discussed included the word “integration” (ibid, Ann. 23,
p. 73). This concept was resorted to by the Harmonizing Committee of 16
members and there were doubts about the real meaning of the word
“integration”. On the other hand, one of the most relevant resolutions
concerning “integration” of the Alexandria Sanitary Bureau, namely
EB3.R30 deals with the integration of functions only, and contains no
reference to Article 54 of the Constitution. Therefore, although the process
of absorption of the Alexandria Sanitary Bureau into the structure of the
WHO and its transformation to the Eastern Mediterranean Regional
Office was frequently referred to as “integration”, I do not think that it

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allows the conclusion that the status of the Alexandria Bureau is different
from that of the other regional offices and that it should be treated in a
distinct manner in the eventuality of transfer. The theory of the “predes-
tination” of Alexandria for the role of the site of the EMRO is not
altogether very convincing, since there were previous regional offices for
the exchange of epidemiological information in other places, such as
Tehran, Tangiers and Singapore. If that was the mark of “predestination”,
the Regional Office for South-East Asia should be in Singapore and not
New Delhi, and the headquarters of the WHO itself should be in Paris,
where the venerable “Office international d'Hygiène publique” was so
active from 1907 until the outbreak of the Second World War.

Since the doctrine of “integration”, individualizing the Bureau of Alex-
andria as a “unique” situation, has no bearing on the operative part of the
Advisory Opinion, I was able to concur in its approval. The foregoing
remarks are therefore addressed to setting forth my views concerning
references in the reasoning to “integration under Article 54 of the Con-
stitution”.

It is undeniable that the Alexandria Sanitary Bureau played an impor-
tant role in the history of international sanitary co-operation, especially in
performing its duties as the Eastern Mediterranean Regional Office of the
WHO since 1 July 1949. It is a long and rich history, which goes back to
1831. In 1843 a health council similar to the one at Constantinople was
created in Egypt, which in 1852 inherited the attributions of the latter. This
sesquicentennial body, by virtue of its experience and its situation at the
crossroads of the traditional pilgrimages, may be proud of an impressive
record of services rendered to the international community, since the old
days when international health problems were confined to the common
work in the fight against the age-old scourges of plague, cholera, yellow
fever and smallpox. It is likewise beyond any doubt that Egypt has a
flawless record as a host country. Furthermore, it is clear that severance of
diplomatic relations with the host country in no way affects the function-
ing of an international organization or its organs, as the every-day routine
work of the United Nations in New York abundantly proves, and as is
provided in Article 82 of the 1975 Vienna Convention on the Represen-
tation of States in their Relations with International Organizations of
Universal Character. Were it for the Court to decide whether or not the
EMRO should be transferred, all these arguments would probably carry a
lot of weight. But this is not its task. The advisability and desirability of the
transfer of the office can only be decided by the World Health Assembly,
which is empowered by Articles 43 and 44 of its Constitution to do so.

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It is in the World Health Assembly that these arguments should be put
forward.

The Court has a different task. The World Health Assembly, by reso-
lution WHA33.16 of 20 May 1980, put to the Court two questions relating
to the hypothetical situation of a decision favourable to the transfer being
taken in the future. This involves the interpretation of a treaty clause and
the consequences of such an interpretation.

There is no doubt that Article 31 of the Vienna Convention on the Law
of Treaties embodies the rules of general international law on the inter-
pretation of treaties, especially the overriding rule of paragraph 1, accord-
ing to which : “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 purpose.” Of course the Vienna
Convention does not apply to the Agreement before the Court, since it is
not an agreement between States, but between a State and an international
organization. But its provisions would apply inasmuch as they embody
rules of international law to which the parties would be subject indepen-
dently of the Convention (Art. 3 (b)). Already in the Advisory Opinion on
the Legal Consequences for States of the Continued Presence of South Africa
in Namibia U.C.J. Reports 1971, p. 47) the Court held : “The rules laid
down by the Vienna Convention on the Law of Treaties ... may in many
respects be considered as a codification of existing customary law on the
subject.” And the rules of Article 31 are undoubtedly of that kind.

Therefore the work of the Court if it were confined to the narrow limits
of the questions in the request could not but be the task of interpreting
Section 37 of the 1951 Agreement in good faith in accordance with the
ordinary meaning of its terms and in the light of the object and purpose of
the treaty, taking into consideration the rules of paragraphs 2, 3 and 4 of
Article 31, and the supplementary means of interpretation provided for in
Article 32.

The first question before the Court referred specifically to the “nego-
tiations” and “notice” provisions of Section 37. What exactly are those
provisions? The “negotiations” referred to in Section 37 are those relating
to the revision of the treaty (“The present Agreement may be revised at the
request of either party. In this event the two parties shall consult each other
concerning the modifications to be made in its provisions”). It is this
process of consultation that is called “negotiations” in the second sentence
of the proviso. Section 37 does not deal with any other kind of “negotia-
tions”. So what is in issue is the “revision” or modification of the treaty.
And, furthermore, the final part of the provision states that it is in the case

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of failure of such negotiations to result in an understanding within one year
that the Agreement may be denounced by either party’s giving two years’
notice. The two years’ notice is related to denunciation, and denunciation
is allowed only upon the failure of the negotiations to result in an under-
standing within one year. This is the ordinary meaning of the words used in
the text if interpreted in good faith and I cannot see how they could be
interpreted otherwise. It seems evident that the intention to avoid a clear
cut and individualized provision regulating denunciation was behind it.
Denunciation is an important stage in the life and expiry of a treaty. It is
not usual for a denunciation clause to come disguised under the mantle of a
provision dealing with another matter.

The “travaux préparatoires” relating to the wording of Section 37 con-
firm such an interpretation. The formula of Section 37 is a standard text,
which appears in a series of similar treaties, going back to an agreement
between the Swiss Federal Council and the International Labour Organ-
isation concerning the Jatter’s legal status in Switzerland adopted and
signed on 11 March 1946. It gave birth to a whole generation of agreements
embodying the same form of words, including, the Agreement concerning
the legal status of the World Health Organization approved by the First
World Health Assembly on 17 July 1948 and by the Swiss Federal Council
on 21 August 1948. Indeed, one could go still further back in search of the
roots of the wording of Section 37. The 1926 modus vivendi concluded
between the League of Nations and Switzerland contained in Article XIV
the following text:

“The above rules of the modus vivendi can only be modified by
agreement between the organisations of the League of Nations and
the Federal Political Department. If, however, an agreement cannot
be reached, it shall always be open to the Federal Government or to
the organisations of the League of Nations to denounce the whole or
part of the rules of the modus vivendi. In this case, the rules mentioned
in the denouncement shall remain in force for one year from the date
of such denouncement.” (League of Nations, Official Journal, 7th
Year, No. 10, p. 1424.)

The wording of the International Labour Organisation-Switzerland
Agreement, Article 30, and of the World Health Organization-Switzerland
Agreement, Article 29, is identical to the wording of Section 37. The only
difference is that in those Agreements, the sentences are separated into
three paragraphs, while in Section 37 the whole proviso is incorporated
into one. The United Nations-Swiss Federal Council Interim Agreement,
signed at Berne on 11 June 1946 and at New York on 1 July 1946, which is
still the host agreement for the Organization in Geneva (though euphem-
istically called “Provisional Arrangement”), in its Final Article repeats the
wording of the 1926 modus vivendi, with a reduction of the period of notice
to three months.

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Moreover, from what remains of the procés-verbaux of the negotiations
which took place on 1,2, 3 and 11 March 1946, leading to the conclusions
of the Agreement between the Swiss Federal Council and the International
Labour Organisation concerning its legal status in Switzerland, it seems
clear that the Swiss Government, represented by Professor Guggenheim,
was keen on the inclusion of a denunciation clause with six months’ notice
in the treaty. The International Labour Organisation, represented by
Mr. Jenks, proposed the form of words which, with some changes, finally
led to Article 30, and which was the seed of similar provisions in a whole
series of host agreements. Apparently the Jenks formula was intended to
avoid a denunciation clause proper and to replace it by the admission of
revision by mutual agreement of the parties. As is clear from the origins of
the wording of Section 37, the right of denunciation arises only on failure,
at the end of one year of negotiations, to agree on revision. In the economy
of this formula, which is repeated in a score of similar treaties, denuncia-
tion is irrevocably linked with revision.

Now, could the removal of the Eastern Mediterranean Regional Office
from Alexandria be accomplished through the revision of the treaty? I
believe that, from the very fact that the Agreement is a “host” agreement —
and I submit it is — the transfer of the international regional organ from its
present site, which is at the centre of the Agreements provisions, would be
much more than a revision. It would indeed be tantamount to a termi-
nation of the agreement by depriving it of its object and purpose. Removal
of the Office would, therefore, fall outside the scope of Section 37, which
deals with the hypothesis of the continuation in force of a modified
agreement, and not with the termination of the agreement by denun-
ciation, unless in the specific case of the failure of negotiations for
revision.

The fact is that, outside the context of a revision procedure, the treaty
contains no general denunciation clause. On this specific point it can be
equated with the treaties dealt with in Article 56 of the Vienna Convention
on the Law of Treaties, namely, treaties which contain no provision
regarding termination, denunciation or withdrawal, always on the under-
standing that Article 56 embodies rules of general international law within
the meaning of Article 3 (). Incidentally, Article 56 of the draft articles of
the International Law Commission on treaties concluded between States
and international organizations or between international organizations is
identical with the text of the Vienna Convention.

I submit that it would be reasonable to regard the two conditions laid
down in subparagraphs (a) and (b) of paragraph | of Article 56 as opening
the door to denunciation even in the absence of a general clause providing
for denunciation in the 1951 Agreement. Indeed, it would be extraordinary
were the parties to a headquarters agreement to exclude the possibility of
denunciation or withdrawal. In addition, the nature of the agreement, a

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host agreement, constitutes a typical case of an implied right of denun-
ciation, especially on the part of the Organization, as the International Law
Commission expressly recognized in its commentaries on Article 56 of the
draft articles on treaties concluded between States and international
organizations or between international organizations. There is no doubt
that headquarters agreements that do not contain a general denunciation
clause, and they are the majority, cannot by their very nature exclude
denunciation. If this is so, it can hardly be disputed that, under the rules of
general international law enshrined in Article 56 of the Vienna Conven-
tion, the Agreement may be terminated by denunciation and that in that
case a reasonable period of notice must be given. Paragraph 2 of Article 56,
however, goes beyond the recognized rules of general international law,
and was constructed by the International Law Commission under the aegis
of the progressive development of international law. The twelve months’
notice for denunciation or withdrawal is to be regarded only as an indi-
cation of what would be a reasonable period. And it is in this context that it
is resorted to in paragraph 49 of the Advisory Opinion of the Court.

A controversial point in the proceedings was whether the 1951 Agree-
ment is or is not a “host agreement”. The concept of “host agreement” is
probably broader than that of “headquarters agreement”, since agree-
ments might be signed with countries that play the role of hosts to tem-
porary gatherings and conferences. But frequently the two expressions are
taken as having the same meaning. What characterizes a “host agreement”
is that it contains a series of provisions intended to regulate the relation-
ship between the host State and the international organization regarding
the permanent site of the organization or of one of its organs in the territory
of the host State. Not many host agreements contain a form of words
similar to the one in Section 2 of the (New York) United Nations Head-
quarters Agreement, which states : “The seat of the United Nations shall
be the headquarters district.” The United Nations-Switzerland Agree-
ment, the host agreement for the second most important site of the Orga-
nization, contains nothing of the sort. Neither do the majority of host
agreements. The 1951 Agreement, apart from the direct reference in Sec-
tion | (v) to the “Secretariat and the Regional Office in Alexandria” and
repeated mention of the Regional Director, deals with problems that go
beyond an agreement or privileges, immunities and facilities. It deals in a
very elaborate way with the status of representatives of members, who
would not be going to Egypt unless to attend business of the Regional
Office. Section 23 (2) (d) provides for the right of officials of the Organi-
zation to import free of duty furniture and effects “at the time of taking up
their post in Egypt”. That is a typical provision of a host agreement,
because it relates to people allocated for a long stay in the territory of the
host country and not to officials on temporary mission on Egyptian ter-

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ritory. Section 30(1) ensures the supply of electricity, water and gas and the
removal of refuse, which have nothing to do with provisions dealing with
privileges and immunities. Paragraph (2) of the same Section deals with
“police supervision for the protection of the seat of the organization”.
These are provisions obviously intended to regulate relationships of a
permanent character, different from those covering privileges, immunities
and facilities exclusively, as, for instance those contained in the Agreement
between Egypt and the WHO for the Provision of Services, of 25 August
1950. Of course, as happens with most host agreements, the 1951 Agree-
ment includes the bulk of the usual provisions related to privileges, immu-
nities and facilities, or the provisions that the Convention on the Privileges
and Immunities of the Specialized Agencies, approved by the General
Assembly of the United Nations on 21 November 1947, in Section 1 (i)
calls “standard clauses”, namely clauses dealing with juridical personality,
property, funds and assets, facilities in respect of communications, abuse
of privileges, recognition of a United Nations /aissez passer and the set-
tlement of disputes. But the difference is that in host agreements those
problems are considered in the light of the needs of the permanent pre-
sence of an international organization in the territory of the host State. The
1951 Agreement corresponds to the general line of a considerable number
of host agreements concluded after the war, including the other host
agreements for Regional Offices of the WHO. It is faithfully aligned on the
model draft agreement between the WHO and a Host Country, which is
given as Annex F to document EMR/EBWG/3. This model was de-
veloped in 1948 and established the format for all the host agreements
concluded by the Organization. Moreover, throughout the negotiations
with the Egyptian Government and the procedures of approval by the
World Health Assembly and the Executive Board, it was always referred to
as a “host agreement” (see Handbook of Resolutions and Decisions of the
World Health Assembly and the Executive Board, Vol. I, p. 357 — Section 3
of the chapter on “Host Agreements” entitled “Host Agreement with the
Government of Egypt”).

A consequence of the fact that the 1951 Agreement is a host agreement is
that the transfer of the EMRO from Alexandria would deprive it of its
raison d’être and would therefore be tantamount to its termination, since it
is a bilateral agreement.

Consequently, the transfer of the Regional Office cannot be achieved
through the procedure of revision or modification of the treaty provisions
which is dealt with in Section 37. If the Office is removed from Alexandria,
the treaty will become void and empty of meaning.

I have submitted that Section 37 does not apply, because it deals pri-

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marily with revision of the Agreement and that denunciation is allowed
only if the attempt to revise the treaty fails to succeed within a year. But,
on the other hand, host agreements are by their very nature eminently
denounceable treaties, on account of the normal unfettered competence of
international organizations to decide on the location of their offices, with a
few exceptions such as the International Court of Justice, the International
Monetary Fund and the World Bank, whose headquarters are laid down in
their Constitutions. If it be admitted that the 1951 Agreement does not
contain a denunciation clause proper — and I believe it does not — it will
inevitably fall within the purview of Article 56 of the Vienna Convention
on the Law of Treaties, as an expression of general international law. Itisin
the light of those general principles of the law of treaties that the problem
of the removal of the Office and of the denunciation of the 1951 Agreement
should be considered. Furthermore, it would be inadmissible to accept that
the transfer could be undertaken without a certain reasonable time having
been agreed upon between the parties for the orderly termination of the
activities of the EMRO in Alexandria. That is why I fully support the
Advisory Opinion’s call upon the World Health Organization to enter into
negotiations with Egypt, if ever the removal of the Office is decided by the
World Health Assembly.

Paragraph 49 of the Advisory Opinion rightly emphasizes the mutual
obligations of the Organization and Egypt to co-operate under the appli-
cable legal principles and rules in the event of a decision of the Assembly in
favour of the transfer. Consultations in good faith should take place (1)
concerning the conditions and modalities according, to which the transfer
should be effected, once the WHA decides upon it ; (2) regarding the
various arrangements needed to carry out the transfer in an orderly man-
ner and with a minimum of prejudice to the work of the Organization and
the interests of Egypt ; (3) concerning a reasonable period of notice for the
termination of the contractual relationship.

I think the Advisory Opinion was wise to depart from the narrow and
literal consideration of the clause of the agreement under discussion in
order to deal in depth with the much more meaningful aspects of the
general need for the protection of the interests of international organiza-
tions and host States in cases where the conventional relationship is to be
terminated. Any such transfer should take into account the legitimate
interests of both parties. The relationship between the host country and the
international organization should always be one of full understanding and
co-operation, in order to create that climate of stability and security which
is indispensable to the steady enhancement of the important role of mul-
tilateral diplomacy.

(Signed) José SETTE-CAMARA.

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