                            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. UNITED KINGDOM)

                             PRELIMINARY OBJECTIONS

                            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. ROYAUME-UNI)

                            EXCEPTIONS PRÉLIMINAIRES

                              ARRÊT DU 5 OCTOBRE 2016

7 CIJ1107.indb 1                                              13/11/17 09:06

                             Oﬃcial citation :
        Obligations concerning Negotiations relating to Cessation
         of the Nuclear Arms Race and to Nuclear Disarmament
 (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
                        I.C.J. Reports 2016, p. 833

                         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. Royaume-Uni), exceptions préliminaires, arrêt,
                          C.I.J. Recueil 2016, p. 833

                                             Sales number
ISSN 0074-4441
ISBN 978-92-1-157302-2
                                             No de vente:    1107

                                                     5 OCTOBER 2016

                                                      JUDGMENT

                    OBLIGATIONS CONCERNING NEGOTIATIONS
                           RELATING TO CESSATION
                         OF THE NUCLEAR ARMS RACE
                        AND TO NUCLEAR DISARMAMENT
                    (MARSHALL ISLANDS v. UNITED KINGDOM)
                           PRELIMINARY OBJECTIONS

                   OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                           CONCERNANT LA CESSATION
                      DE LA COURSE AUX ARMES NUCLÉAIRES
                         ET LE DÉSARMEMENT NUCLÉAIRE
                        (ÎLES MARSHALL c. ROYAUME-UNI)
                          EXCEPTIONS PRÉLIMINAIRES

                                                    5 OCTOBRE 2016

                                                         ARRÊT

7 CIJ1107.indb 3                                                      13/11/17 09:06

833

                          TABLE OF CONTENTS

                                                        Paragraphs

Chronology of the Procedure                                  1-14
    I. Introduction                                         15-25
      A. Historical background                              15-21
      B. Proceedings brought before the Court               22-25
II. First Preliminary Objection: Absence of a Dispute       26-58
Operative Clause                                               59

4

               834

                               INTERNATIONAL COURT OF JUSTICE

   2016
                                                 YEAR 2016
 5 October
General List                                   5 October 2016
  No. 160

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

                                     PRELIMINARY OBJECTIONS

                  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.

                                                       *
                  Preliminary 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

835            nuclear arms and disarmament (judgment)

  Contention that dispute exists based on 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 dis-
pute — None of the other statements relied on by the Marshall Islands supports
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 the Parties’ voting records on nuclear
disarmament in multilateral fora — Considerable care required before inferring
existence of dispute from votes cast before political organs — Votes on resolutions
containing number of propositions provide no basis for postulating existence of
dispute.

   Contention that dispute exists based on United Kingdom’s conduct — Appli-
cant’s statements did not offer any particulars regarding United Kingdom’s con-
duct — Cannot be said that United Kingdom was aware, or could not have been
unaware, that the Marshall Islands was making an allegation that the United
Kingdom was in breach of its obligations — Conduct of United Kingdom cannot
show opposition of views.
   Preliminary objection of United Kingdom upheld — Not necessary for the Court
to deal with other preliminary 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,

6

836            nuclear arms and disarmament (judgment)

    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,
    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 United Kingdom of Great Britain and Northern Ireland,
represented by
  H.E. Sir Geoﬀrey Adams, K.C.M.G., Ambassador of the United Kingdom of
     Great Britain and Northern Ireland to the Kingdom of the Netherlands;
  Mr. Iain Macleod, Legal Adviser to the Foreign and Commonwealth Oﬃce,

    as Agent;
    Ms Catherine Adams, Legal Director at the Foreign and Commonwealth
       Oﬃce,
    as Deputy Agent (until 29 September 2016);
    Mr. Douglas Wilson, Legal Director at the Foreign and Commonwealth
       Oﬃce,

7

837            nuclear arms and disarmament (judgment)

    as Deputy Agent (from 29 September 2016);
    Mr. Shehzad Charania, Legal Adviser at the Embassy of the United Kingdom
       of Great Britain and Northern Ireland in the Kingdom of the Netherlands,
    as Deputy Agent (until 15 August 2016);
    Mr. Philip Dixon, Legal Adviser at the Embassy of the United Kingdom of
       Great Britain and Northern Ireland in the Kingdom of the Netherlands,
    as Deputy Agent (from 15 August 2016);
    Mr. Christopher Stephen, Assistant Legal Adviser, Foreign and Common-
       wealth Oﬃce,
    as Adviser;
    Sir Daniel Bethlehem, Q.C., member of the English Bar,
    Mr. Guglielmo Verdirame, Professor of International Law, King’s College
       London, member of the English Bar,
    Ms Jessica Wells, member of the English Bar,
    as Counsel and Advocates,

    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 of
the Court an Application instituting proceedings against the United Kingdom
of Great Britain and Northern Ireland (hereinafter the “United Kingdom” or
the “Respondent”), in which it claimed that the Respondent has breached treaty
and customary obligations in the following manner:
         “15. The United Kingdom has not pursued in good faith negotiations to
      cease the nuclear arms race at an early date through comprehensive nuclear
      disarmament or other measures, and instead is taking actions to improve
      its nuclear weapons system and to maintain it for the indeﬁnite future.

         16. Similarly, the United Kingdom has not fulﬁlled its obligation to pur-
      sue in good faith negotiations leading to nuclear disarmament in all its
      aspects under strict and eﬀective international control and instead has
      opposed the eﬀorts of the great majority of States to initiate such negotia-
      tions.”
  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 the United Kingdom on 5 July 2004 (deposited with the
Secretary-General of the United Nations also on 5 July 2004) and by the Mar-
shall 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 the
United Kingdom; and, under paragraph 3 of that Article, he notiﬁed all other
States entitled to appear before the Court of the Application.

8

838            nuclear arms and disarmament (judgment)

   3. On the instructions of the Court, pursuant to Article 43 of the Rules of
Court, the Registrar addressed to States parties to the 1968 Treaty on the
Non-Proliferation of Nuclear Weapons (hereinafter the “NPT”) the notiﬁcations
provided for in Article 63, paragraph 1, of the Statute of the Court. In accordance
with the provisions of Article 69, paragraph 3, of the Rules of Court, the Regis-
trar moreover addressed to the Secretary-General of the United Nations the noti-
ﬁcation provided for in Article 34, paragraph 3, of the Statute of the Court.
   4. Since the Court included upon the Bench no judge of the nationality of the
Marshall Islands, the latter proceeded to exercise the right conferred upon it by
Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case:
it chose Mr. Mohammed Bedjaoui.
   5. By an Order of 16 June 2014, the Court ﬁxed 16 March 2015 as the
time-limit for the ﬁling of the Memorial of the Marshall Islands and 16 Decem-
ber 2015 for the ﬁling of the Counter-Memorial of the United Kingdom. The
Marshall Islands ﬁled its Memorial within the time-limit so prescribed.
   6. On 15 June 2015, within the time-limit set by Article 79, paragraph 1, of
the Rules of Court, the United Kingdom raised preliminary objections to the
jurisdiction of the Court and the admissibility of the Application. Consequently,
by an Order of 19 June 2015, the President of the Court, noting that, by virtue
of Article 79, paragraph 5, of the Rules of Court, the proceedings on the merits
were suspended, and taking account of Practice Direction V, ﬁxed 15 October
2015 as the time-limit for the presentation by the Marshall Islands of a written
statement of its observations and submissions on the preliminary objections
raised by the United Kingdom. The Marshall Islands ﬁled such a statement
within the time-limit so prescribed, and the case became ready for hearing in
respect of the preliminary objections.
   7. 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 in accordance with that same provision,
the President of the Court decided to grant this request. By letters dated
10 December 2015, the Registrar duly communicated that decision to the Gov-
ernment of India and to the Parties.
   8. 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.
   9. Public hearings on the preliminary objections raised by the United King-
dom were held from Wednesday 9 to Wednesday 16 March 2016, at which the
Court heard the oral arguments and replies of:
For the United Kingdom: Mr. Iain Macleod,
                        Sir Daniel Bethlehem,
                        Mr. Guglielmo Verdirame,
                        Ms Jessica Wells.
For the Marshall Islands: H.E. Mr. Tony deBrum,
                          Mr. Phon van den Biesen,
                          Mr. Luigi Condorelli,
                          Ms Laurie B. Ashton,
                          Ms Christine Chinkin,
                          Mr. Paolo Palchetti,
                          Mr. Nicholas Grief.

9

839            nuclear arms and disarmament (judgment)

  10. At the hearings, Members of the Court put questions to the Parties, to
which replies were given orally and in writing, within the time-limit ﬁxed by the
President in accordance with Article 61, paragraph 4, of the Rules of Court.
Each of the Parties submitted comments on the written replies provided by the
other, pursuant to Article 72 of the Rules of Court.

                                         *
  11. In the Application, the following claims were made by the Mar-
shall 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 the United Kingdom has violated and continues to violate its inter-
           national obligations under the NPT, more speciﬁcally under Article VI
           of the Treaty, by failing to pursue in good faith and bring to a conclu-
           sion negotiations leading to nuclear disarmament in all its aspects under
           strict and eﬀective international control;
      (b) that the United Kingdom has violated and continues to violate its inter-
           national obligations under the NPT, more speciﬁcally under Article VI
           of the Treaty, by taking actions to qualitatively improve its nuclear
           weapons system and to maintain it for the indeﬁnite future, and by
           failing to pursue negotiations that would end nuclear arms racing
           through comprehensive nuclear disarmament or other measures;

      (c) that the United Kingdom has violated and continues to violate its inter-
          national 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 inter-
          national control;
      (d) that the United Kingdom has violated and continues to violate its inter-
          national obligations under customary international law, by taking
          actions to qualitatively improve its nuclear weapons system and to
          maintain it for the indeﬁnite future, and by failing to pursue negotia-
          tions that would end nuclear arms racing through comprehensive
          nuclear disarmament or other measures;

      (e) that the United Kingdom has failed and continues to fail to perform in
          good faith its obligations under the NPT and under customary inter-
          national law by modernizing, updating and upgrading its nuclear weap-
          ons capacity and maintaining its declared nuclear weapons policy for
          an unlimited period of time, while at the same time failing to pursue
          negotiations as set out in the four preceding counts; and

      (f) that the United Kingdom has failed and continues to fail to perform in
          good faith its obligations under the NPT and under customary
          international law by eﬀectively preventing the great majority of non-
          nuclear-weapon States parties to the Treaty from fulﬁlling their part
          of the obligations under Article VI of the Treaty and under customary
          international law with respect to nuclear disarmament and cessation
          of the nuclear arms race at an early date.

10

840            nuclear arms and disarmament (judgment)

      In addition, the Republic of the Marshall Islands requests the Court
      to order
      the United Kingdom to take all steps necessary to comply with its obliga-
      tions under Article VI of the Treaty on the Non-Proliferation of Nuclear
      Weapons and under customary international law within one year of the
      Judgment, including the pursuit, by initiation if necessary, of negotiations
      in good faith aimed at the conclusion of a convention on nuclear disarma-
      ment in all its aspects under strict and eﬀective international control.”

  12. In the written proceedings on the merits, the following submissions were
presented on behalf of the Government of the Marshall Islands in its Memorial:
         “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 the United Kingdom has violated and continues to violate its inter-
           national obligations under the NPT, more speciﬁcally under Article VI
           of the Treaty, by failing to pursue in good faith and bring to a conclu-
           sion negotiations leading to nuclear disarmament in all its aspects under
           strict and eﬀective international control;
      (b) that the United Kingdom has violated and continues to violate its inter-
           national obligations under the NPT, more speciﬁcally under Article VI
           of the Treaty, by taking actions to qualitatively improve its nuclear
           weapons system and to maintain it for the indeﬁnite future, and by
           failing to pursue negotiations that would end the nuclear arms race
           through comprehensive nuclear disarmament or other measures;

      (c) that the United Kingdom has violated and continues to violate its inter-
          national 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 inter-
          national control;
      (d) that the United Kingdom has violated and continues to violate its inter-
          national obligations under customary international law, by taking
          actions to qualitatively improve its nuclear weapons system and to
          maintain it for the indeﬁnite future, and by failing to pursue negotia-
          tions that would end the nuclear arms race through comprehensive
          nuclear disarmament or other measures;
      (e) that the United Kingdom has failed and continues to fail to perform in
          good faith its obligations under the NPT and under customary inter-
          national law by modernizing, updating and upgrading its nuclear weap-
          ons capacity and maintaining its declared nuclear weapons policy for
          an unlimited period of time, while at the same time failing to pursue
          negotiations as set out in the four preceding counts; and

      (f) that the United Kingdom has failed and continues to fail to perform in
          good faith its obligations under the NPT and under customary inter-
          national law by eﬀectively preventing the great majority of non-
          nuclear-weapon States parties to the Treaty from fulﬁlling their part of
          the obligations under Article VI of the Treaty and under customary

11

841            nuclear arms and disarmament (judgment)

           international law with respect to nuclear disarmament and cessation of
           the nuclear arms race at an early date.
      In addition, the Republic of the Marshall Islands requests the Court
      to order
      the United Kingdom to take all steps necessary to comply with its obliga-
      tions under Article VI of the Treaty on the Non-Proliferation of Nuclear
      Weapons and under customary international law within one year of the
      Judgment, including the pursuit, by initiation if necessary, of negotiations
      in good faith aimed at the conclusion of a convention on nuclear disarma-
      ment in all its aspects under strict and eﬀective international control.”

  13. In the preliminary objections, the following submissions were presented
on behalf of the Government of the United Kingdom:
        “For the reasons set out in this pleading, the United Kingdom requests
      the Court to adjudge and declare that the claim brought by the Mar-
      shall Islands is inadmissible and/or that the Court lacks jurisdiction to
      address the claim.”
  In the written statement of its observations and submissions on the prelimi-
nary objections, the following submissions were presented on behalf of the Gov-
ernment of the Marshall Islands:
        “In consideration of the foregoing, the Republic of the Marshall Islands
      requests the Court:
      — to reject and dismiss the preliminary objections of the United Kingdom;
         and
      — to adjudge and declare:
           (i) that the Court has jurisdiction in respect of the claims presented by
               the Marshall Islands; and
          (ii) that the Marshall Islands’ claims are admissible.”
  14. In the oral proceedings on the preliminary objections, the following sub-
missions were presented by the Parties:
On behalf of the Government of the United Kingdom,
at the hearing of 14 March 2016:
       “The United Kingdom requests the Court to adjudge and declare that:
      — it lacks jurisdiction over the claim brought against the United Kingdom
        by the Marshall Islands; and/or
      — the claim brought against the United Kingdom by the Marshall Islands
        is inadmissible.”
On behalf of the Government of the Marshall Islands,
at the hearing of 16 March 2016:
        “The Marshall Islands respectfully requests the Court:
      (a) to reject the preliminary objections to its jurisdiction and to the admis-
          sibility of the Marshall Islands’ claims, as submitted by the United King-
          dom of Great Britain and Northern Ireland in its preliminary objections
          of 15 June 2015;

12

842            nuclear arms and disarmament (judgment)

      (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 admissible.”

                                          *
                                      *       *

                                I. Introduction

                           A. Historical Background
   15. 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
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

13

843           nuclear arms and disarmament (judgment)

of general international disarmament eﬀorts, have also dealt speciﬁcally
with questions of nuclear disarmament.

   16. By resolution 21 of 2 April 1947, the United Nations Security
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.
   17. The Respondent is one of the founding Members of the United
Nations and a permanent member of the Security Council. The United
Kingdom ﬁrst detonated an atomic device in the Monte Bello Islands oﬀ
north-western Australia on 3 October 1952 and possesses nuclear weap-
ons.
   18. Following extensive negotiations in the 1960s, in which both
nuclear-weapon States and non-nuclear-weapon States participated, the
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 Arti-
cle 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 Mar-
shall Islands acceded to the NPT on 30 January 1995. The United King-
dom is a party to the NPT and is one of three Depositary Governments
for the Treaty under Article IX; it signed the Treaty on 1 July 1968 and
deposited instruments of ratiﬁcation on 27 November 1968 in London
and Washington and on 29 November 1968 in Moscow.
   19. 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 par-
ties not to transfer nuclear weapons to any recipient, and the obligation of
non-nuclear-weapon States parties not to receive such a transfer). The Pre-
amble to the NPT also declares the intention of the parties “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

14

844           nuclear arms and disarmament (judgment)

      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 Federation, the United
Kingdom and the United States of America. In addition, certain other
States possess, or are believed to possess nuclear weapons.
   20. 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
leading to nuclear disarmament in all its aspects under strict and eﬀective
international control” (ibid., p. 267, para. 105 (2) F).
   21. 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.

15

845          nuclear arms and disarmament (judgment)

                B. Proceedings Brought before the Court
   22. On 24 April 2014, the Marshall Islands ﬁled, in addition to the
present 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, Pakistan, the Russian Federation 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 were entered in the Court’s General
List, as the Applicant had invoked these States’ declarations recogniz-
ing the compulsory jurisdiction of the Court (pursuant to Article 36,
paragraph 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 jurisdic-
tion 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. Accordingly, these applications were not entered in the Court’s
General List.
   23. The United Kingdom has raised ﬁve preliminary objections to the
jurisdiction of the Court or the admissibility of the Application. Accord-
ing to the ﬁrst preliminary objection, the Marshall Islands has failed to
show that there was, at the time of the ﬁling of the Application, a justi-
ciable dispute between the Parties with 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. In its second and
third preliminary objections, the United Kingdom argues that the Court’s
jurisdiction is precluded by reservations in the Parties’ declarations under
Article 36, paragraph 2, of the Statute. The fourth preliminary objection
is based on the absence from the proceedings of third parties, in particu-
lar the other States possessing nuclear weapons, whose essential interests
are said to be engaged in the proceedings. According to the ﬁfth prelimi-
nary objection, the Court should decline to exercise its jurisdiction
because a judgment on the merits in the present case would have no prac-
tical consequence.
   24. In its written observations and its ﬁnal submissions presented dur-
ing the oral proceedings, the Marshall Islands requested the Court to
reject the preliminary objections of the United Kingdom in their entirety,
and accordingly to ﬁnd that it has jurisdiction and that the Application is
admissible (see paragraphs 13 and 14 above).
   25. The Court will ﬁrst consider the preliminary objection based on the
absence of a dispute.

                                      *
                                  *       *

16

846           nuclear arms and disarmament (judgment)

        II. First Preliminary Objection: Absence of a Dispute

   26. In its ﬁrst preliminary objection, the United Kingdom argues that,
on the date of the ﬁling of the Marshall Islands’ Application, there was
no “justiciable dispute” between the Marshall Islands and the United King-
dom. Consequently, it considers that the Court lacks jurisdiction to
address all of the Marshall Islands’ claims and/or that those claims are
inadmissible.
   27. The United Kingdom contends that there is a principle of custom-
ary international law which requires that a State intending to invoke the
responsibility of another State must give notice of its claim to that State,
such notice being a condition of the existence of a dispute. It asserts that
this principle is reﬂected in Article 43 of the International Law Commis-
sion’s Articles on the Responsibility of States for Internationally Wrong-
ful Acts (hereinafter “ILC Articles on State Responsibility”) and
provisions to that eﬀect can be found in various compulsory dispute set-
tlement arrangements under international law. The United Kingdom
argues that prior notiﬁcation of claims was also held by the Court to be a
precondition to the existence of a dispute in both the case concerning
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation) and the case
concerning Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal).

   28. The United Kingdom asserts that these requirements have not been
satisﬁed in the present case. With regard to the two statements particu-
larly relied upon by the Marshall Islands, the United Kingdom maintains
that neither the content of these statements nor the circumstances in
which they were made provide any evidence that a dispute existed between
the Parties at the date on which the Application was ﬁled. The ﬁrst state-
ment was made on 26 September 2013 at the High-Level Meeting of the
General Assembly on Nuclear Disarmament, when the Minister for For-
eign Aﬀairs of the Marshall Islands “urge[d] all nuclear weapons states to
intensify eﬀorts to address their responsibilities in moving towards an
eﬀective and secure disarmament”. The Respondent observes that the
statement did not speciﬁcally mention the United Kingdom, and argues
that it could not in any way be viewed as invoking the latter’s responsibil-
ity under international law for any breach of the NPT or of customary
international law. The second statement, also of a general nature, was
made on 13 February 2014, just over two months before the ﬁling of the
Application before the Court, at the Second Conference on the Human-
itarian Impact of Nuclear Weapons held in Nayarit, Mexico, and reads as
follows:

        “[T]he Marshall Islands is convinced that multilateral negotiations
      on achieving and sustaining a world free of nuclear weapons are long

17

847           nuclear arms and disarmament (judgment)

      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 United Kingdom observes that it was not present at this conference,
and contends that the Marshall Islands took no steps to bring this statement
to its attention. The United Kingdom adds that the Marshall Islands has
had other opportunities to notify it of the alleged dispute but did not do so.
   29. The Respondent argues that, at the date of the ﬁling of the Appli-
cation, the Marshall Islands had not taken the most basic steps to notify
the United Kingdom of its claim, or any aspect of the alleged dispute or
even disagreement between them. Furthermore, the United Kingdom
contends that it is not enough that there is a public record of views that
are not the same; there needs to be an exchange between the parties to a
dispute. Accordingly, it argues, there was no conﬂict of legal positions
between the Marshall Islands and the United Kingdom, and thus no “jus-
ticiable dispute”. The United Kingdom adds that the ﬁling of an applica-
tion cannot amount both to notice and the crystallization of an incipient
dispute. Similarly, post-application conduct cannot on its own establish
the existence of a “justiciable dispute” between the Parties at the time
of the seisin of the Court; it may only be used to deﬁne the scope or
subject-matter of the dispute.

                                      *
   30. The Marshall Islands contends that the ﬁrst preliminary objection
of the United Kingdom should be rejected.
   31. The Marshall Islands asserts that there is no general principle
imposing on a State that intends to institute proceedings the obligation to
notify the other State of this intention or of its claims prior to seising the
adjudicatory body. It argues that Article 43 of the ILC Articles on State
Responsibility is irrelevant as that provision does not relate to the institu-
tion of proceedings before an international court or tribunal. In support
of that argument, the Marshall Islands refers to the ILC’s Commentary
to Article 44, which indicates that the ILC Articles on State Responsibil-
ity “are not concerned with questions of the jurisdiction of international
courts and tribunals, or in general with the conditions for the admissibil-
ity of cases”. It further submits that the United Kingdom’s attempt to
infer a principle of general application from speciﬁc provisions in various
international instruments is untenable and does not ﬁnd any support in
the case law of international courts and tribunals.
   32. The Marshall Islands adds that the Court has consistently denied
the existence of a general requirement of prior notice of the intention to
institute proceedings, and that the Belgium v. Senegal and Georgia v. Rus-

18

848          nuclear arms and disarmament (judgment)

sian Federation cases do not support the United Kingdom’s allegation of
such a prior notiﬁcation requirement. The Marshall Islands also avers
that the Court has never recognized the existence of a general require-
ment of prior notiﬁcation of claims, and that a perusal of its case law
reveals that it has always avoided setting overly rigid parameters to deter-
mine the existence of a dispute, in particular allowing for the possibility
that a dispute can “crystallize” as a consequence of the claim made by a
State against the consistent course of conduct of another State (e.g., Cer-
tain Property (Liechtenstein v. Germany), Preliminary Objections, Judg-
ment, 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. Yugoslavia), Preliminary Objections, Judg-
ment, I.C.J. Reports 1996 (II), pp. 614-615, para. 29).
   33. In the Marshall Islands’ view, the existence of a dispute is evi-
denced by the opposing attitudes of the Parties with respect to the ques-
tion of the United Kingdom’s compliance with Article VI of the NPT and
the corresponding customary law obligations. First, the Marshall Islands
avers that it clearly communicated its claim to all States possessing
nuclear weapons — including the United Kingdom — through its 13 Feb-
ruary 2014 statement at the Nayarit conference (see paragraph 28 above).
According to the Marshall Islands, the United Kingdom must have been
aware of this statement — even if it did not attend the relevant meet-
ing — because all statements and records therefrom were publicly avail-
able and easily accessible, including on the Internet. Subsidiarily, the
Marshall Islands contends that even if one were to accept the test of prior
notice of the claim suggested by the United Kingdom (which the Appli-
cant interprets as requiring that the Respondent “be aware of the claim of
the other Party so as to be given the opportunity to respond to such
claim”), this statement would fulﬁl that requirement.
   34. The Marshall Islands further argues that it also gave notice of its
claim by means of its Application.
   35. For the Marshall Islands, the opposition of the United Kingdom to
this claim is evidenced by the Respondent’s own conduct. It adds that the
statements made by the United Kingdom in the preliminary objections
and during the hearings show that it continues to oppose the merits of the
claim. Moreover, the Marshall Islands refers to the Parties’ respective vot-
ing records in multilateral fora as demonstrating the opposition of views
between them. Finally, according to the Marshall Islands, such opposition
results from the fact that the United Kingdom has engaged, and continues
to engage, in a course of conduct alleged to be in breach of international
law, as well as from statements of the Government of the United Kingdom
in parliamentary debates in 2006 and 2010, stating that the renewal of its
nuclear deterrent was consistent with its obligations under the NPT.

                                   *   *
19

849          nuclear arms and disarmament (judgment)

   36. 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.
   37. 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).

   38. 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
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).

   39. 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-

20

850            nuclear arms and disarmament (judgment)

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).

  40. 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), pp. 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-
ary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89).
   41. The evidence must show that the parties “hold clearly opposite
views” with respect to the issue brought before the Court (see para-
graph 37 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. 26, para. 73; Appli-
cation of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-

21

851           nuclear arms and disarmament (judgment)

tions, Judgment, I.C.J. Reports 2011 (I), p. 99, para. 61, pp. 109-110,
para. 87, p. 117, para. 104).

   42. 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.
   43. 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,
the rule that the dispute must in principle exist prior to the ﬁling of the
application would be subverted.

                                    * *
   44. 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 16 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

22

852          nuclear arms and disarmament (judgment)

Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1988, p. 75, para. 16).

   45. As noted above at paragraphs 27-29, the United Kingdom relies on
the fact that the Marshall Islands did not commence negotiations or give
notice to it of the claim that is the subject of the Application to support
its contention that there is no dispute between the Parties. The
United Kingdom lays particular emphasis on Article 43 of the ILC Arti-
cles on State Responsibility, which requires an injured State to “give
notice of its claim” to the allegedly responsible State. Article 48, para-
graph 3, applies that requirement mutatis mutandis to a State other than
an injured State which invokes responsibility. However, the Court notes
that the ILC’s commentary speciﬁes that the Articles “are not concerned
with questions of the jurisdiction of international courts and tribunals, or
in general with the conditions for the admissibility of cases brought before
such courts or tribunals” (see ILC Commentary on the Draft Articles on
the Responsibility of States for Internationally Wrongful Acts, Report of
the International Law Commission, United Nations doc. A/56/10, 2001,
paragraph 1 of the Commentary on Article 44, pp. 120-121). Moreover,
the Court has rejected the view that notice or prior negotiations are
required where it has been seised on the basis of declarations made pursu-
ant to Article 36, paragraph 2, of the Statute, unless one of those declara-
tions so provides. The Court’s jurisprudence treats the question of the
existence of a dispute as a jurisdictional one that turns on whether there
is, in substance, a dispute, not on what form that dispute takes or whether
the respondent has been notiﬁed (see paragraph 38 above).

  46. The Marshall Islands seeks to demonstrate that it had a dispute
with the United Kingdom in essentially four ways. First, it refers to its
own statements, 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 the United Kingdom’s voting
records on nuclear disarmament in multilateral fora. Fourthly, it relies on
the United Kingdom’s conduct both before and after the ﬁling of the
Application.

   47. The Marshall Islands accepts that no bilateral diplomatic exchanges
have taken place on these issues. This is despite the fact that a number of
bilateral exchanges, including visits by senior United Kingdom personnel
to the Marshall Islands, took place in the period prior to the ﬁling of the
Application at which such issues could have been raised.

   48. The Marshall Islands refers to a number of statements made in
multilateral fora before the date of the ﬁling of its Application which, in
its view, suﬃce to establish the existence of a dispute. As the Court has

23

853           nuclear arms and disarmament (judgment)

already explained, the opposition of the Parties’ views could also be dem-
onstrated by exchanges made in multilateral settings (see paragraph 39
above). In such a setting, however, the Court must give particular atten-
tion, inter 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 37 and 39 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.

   49. 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 the United Kingdom (or any other nuclear power) was in
breach of any of its legal obligations. It does not mention the obligation
to negotiate, nor does it say that the nuclear-weapon States are failing to
meet their obligations in this regard. It suggests that they are making
“eﬀorts” to address their responsibilities, and calls for an intensiﬁcation
of those eﬀorts, rather than deploring a failure to act. Moreover, a state-
ment 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 Elimi-
nation of All Forms of Racial Discrimination (Georgia v. Russian Federa-
tion), 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 any
obligation regardless of the underlying jurisdictional basis alleged, since
the Court made clear that it was dealing with the requirements of a dis-
pute in general (ibid., p. 84, para. 29). The 2013 statement relied upon by
the Marshall Islands does not meet these requirements.

  50. The statement made by the Marshall Islands at the Nayarit confer-
ence on 13 February 2014 (see paragraph 28 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. However, the
United Kingdom was not present at the Nayarit conference. Further, 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 con-

24

854          nuclear arms and disarmament (judgment)

tains a general criticism of the conduct of all nuclear-weapon States, it
does not specify the conduct of the United Kingdom that gave rise to the
alleged breach. Such a speciﬁcation would have been particularly neces-
sary if, as the Marshall Islands contends, the Nayarit statement was
aimed at invoking the international responsibility of the Respondent on
the grounds of a course of conduct which had remained unchanged for
many years. Given its very general content and the context in which it
was made, that statement did not call for a speciﬁc reaction by the United
Kingdom. Accordingly, no opposition of views can be inferred from the
absence of any such reaction. The Nayarit statement is insuﬃcient to
bring into existence, between the Marshall Islands and the United King-
dom, a speciﬁc dispute as to the scope of Article VI of the NPT and the
asserted corresponding customary international law obligation, or as to
the United Kingdom’s compliance with such obligations.

  51. None of the other more general statements relied on by the Mar-
shall Islands in this case supports the existence of a dispute, since none
articulates an alleged breach by the United Kingdom of the obligation
enshrined in Article VI of the NPT or the corresponding customary inter-
national law obligation invoked by the Marshall Islands.

   52. In all the circumstances, on the basis of those statements — whether
taken individually or together — it cannot be said that the United King-
dom was aware, or could not have been unaware, that the Marshall
Islands was making an allegation that the United Kingdom was in breach
of its obligations.
   53. Secondly, the Marshall Islands argues that the very ﬁling of the
Application could suﬃce to establish the existence of a dispute: “nothing
excludes the possibility of conceiving the seisin of the Court as an appro-
priate and perfectly legitimate mode by which the injured State ‘notiﬁes
its claim’ to the State whose international responsibility is invoked”. It
also points to other statements made in the course of the proceedings by
both Parties as evidence of their opposition of views.
   54. 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 32 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

25

855          nuclear arms and disarmament (judgment)

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
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 43 above).

   55. Thirdly, the Marshall Islands refers to the Parties’ voting records
in multilateral fora on nuclear disarmament (see paragraph 35 above).
For example, in response to a question from a Member of the Court, it
referred to General Assembly resolution 68/32 of 5 December 2013, enti-
tled “Follow-up to the 2013 High-Level Meeting of the General Assembly
on Nuclear Disarmament”. Paragraph 2 of that resolution called for
“urgent compliance with the legal obligations and the fulﬁlment of the
commitments undertaken on nuclear disarmament”. In paragraph 4, the
General Assembly called for “the urgent commencement of negotiations
in the Conference on Disarmament for the early conclusion of a compre-
hensive convention on nuclear weapons”. The resolution was passed by
137 votes to 28 with 20 abstentions. The Marshall Islands voted in favour
of the resolution; the United Kingdom voted against.

   56. In the Court’s view, 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 consti-
tute relevant evidence of the existence of a legal dispute in some circum-
stances, 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 cannot 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.

  57. Fourthly, the Marshall Islands invokes the United Kingdom’s con-
duct in declining to co-operate with certain diplomatic initiatives, in fail-
ing to initiate any disarmament negotiations, and in replacing and

26

856          nuclear arms and disarmament (judgment)

modernizing its nuclear weapons, together with statements that its con-
duct is consistent with its treaty obligations. According to the Marshall
Islands, this conduct and assertion of legality, juxtaposed with statements
of the Marshall Islands containing a complaint aimed precisely at that
conduct and the legal position of the United Kingdom, demonstrate the
existence of a dispute as to the scope of and compliance with its obliga-
tions under Article VI of the NPT and a corresponding customary inter-
national law obligation.

   The Court recalls that the question whether there is a dispute in a par-
ticular contentious case turns on the evidence of opposition of views (see
paragraphs 37, 39 and 40 above). In this regard, conduct of a respondent
can contribute to a ﬁnding by the Court that the views of the parties are
in opposition (see paragraph 40 above). However, as the Court has previ-
ously concluded (see paragraphs 49-52 above), in the present case none of
the statements that were made in a multilateral context by the Marshall
Islands oﬀered any particulars regarding the United Kingdom’s conduct.
On the basis of such statements, it cannot be said that the United King-
dom was aware, or could not have been unaware, that the Marshall
Islands was making an allegation that the United Kingdom was in breach
of its obligations. In this context, the conduct of the United Kingdom
does not provide a basis for ﬁnding a dispute between the two States
before the Court.

                                   *       *
  58. The Court therefore concludes that the ﬁrst preliminary objection
made by the United Kingdom must be upheld. It follows that the Court
does not have jurisdiction under Article 36, paragraph 2, of its Statute.
Consequently, it is not necessary for the Court to deal with the other
objections raised by the United Kingdom.

                                       *
                                  *        *

  59. For these reasons,
  The Court,
  (1) By eight votes to eight, by the President’s casting vote,
  Upholds the ﬁrst preliminary objection to jurisdiction raised by the
United Kingdom of Great Britain and Northern Ireland, based on the
absence of a dispute between the Parties;
  in favour: President Abraham; Judges Owada, Greenwood, Xue, Donoghue,
     Gaja, Bhandari, Gevorgian;
  against: Vice-President Yusuf; Judges Tomka, Bennouna, Cançado Trindade,
     Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui;

27

857          nuclear arms and disarmament (judgment)

  (2) By nine votes to seven,
  Finds that it cannot proceed to the merits of the case.
  in favour: President Abraham; Judges Owada, Tomka, Greenwood, Xue,
    Donoghue, Gaja, Bhandari, Gevorgian;
  against: Vice-President Yusuf; 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 United Kingdom of
Great Britain and Northern Ireland, respectively.

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

  President Abraham appends a declaration to the Judgment of the
Court; Vice-President Yusuf appends a dissenting opinion to the Judg-
ment of the Court; Judges Owada and Tomka append separate opinions
to the Judgment of the Court; Judges Bennouna and Cançado Trin-
dade 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 dissent-
ing 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.

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