INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER OF 27 MAY 1987

1987

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME

(EL SALVADOR/HONDURAS)

ORDONNANCE DU 27 MAI 1987
Official citation:

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Order of 27 May 1987, I.C.J. Reports 1987, p. 15.

Mode officiel de citation :

Différend frontalier terrestre, insulaire et maritime (El Salvador/Honduras),
ordonnance du 27 mai 1987, C.I.J. Recueil 1987, p. 15.

Sales number 5 3 1
N° de vente :

1987
27 May
General List
No. 75

15

INTERNATIONAL COURT OF JUSTICE
YEAR 1987

27 May 1987

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER

Present: President NAGENDRA SINGH; Vice-President MBAYE; Judges
Lacus, Rupa, ODA, AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert
JENNINGS, BEDJAOUI, NI, EVENSEN, TARASSOV; Registrar
VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court, and to Arti-
cles 31, 44, 46 and 92 of the Rules of Court,

Having regard to the Special Agreement concluded on 24 May 1986
between the Republic of El Salvador and the Republic of Honduras for
the submission to a chamber of the Court of a land, island and maritime
frontier dispute between the two States,

Having regard to the Order of 8 May 1987 by which the Court decided
to accede to the request of the Parties to form a special chamber of five
judges to deal with the case, and declared such a chamber to have been
duly constituted, with the composition indicated in the Order,

4
16 DISPUTE (EL SALVADOR/HONDURAS) (ORDER 27 V 87)

Makes the following Order:

Whereas by Article 3, paragraph 1 (a), of the Special Agreement, ac-
cording to the two translations thereof into the official languages of the
Court referred to in the Order of 8 May 1987, the Parties request that the
written proceedings consist of, in the first instance, a Memorial to be filed
by each of the Parties no later than ten months after the notification of the
Special Agreement; and whereas the Special Agreement provides for fur-
ther pleadings to be filed by each Party, and indicates time-limits therefor;

Whereas by a joint letter signed on behalf of the two Parties and dated
11 December 1986, by which the Parties transmitted to the Registrar a cer-
tified copy of the Special Agreement, the Parties requested a postpone-
ment of the time-limit for the filing of the first pleading; and whereas by
further communications received on 26 May 1987 the Parties informed
the Court that they had agreed to request that that time-limit be fixed at
1 June 1988, and indicated the dates on which they had agreed for the
filing of subsequent pleadings;

Having consulted the Chamber pursuant to Article 92, paragraph 1, of
the Rules of Court,

THE COURT

Fixes 1 June 1988 as the time-limit for the filing by each of the Parties of
a Memorial;

And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of May, one thou-
sand nine hundred and eighty-seven, in three copies, one of which will be
placed in the archives of the Court, and the others transmitted to the Gov-
ernment of El Salvador and to the Government of Honduras, respectively.

(Signed) NAGENDRA SINGH,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER

COMPANY, LIMITED
(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 11 JUIN 1965

1965

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED
(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 11 JUNE 1965
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
ordonnance du xr juin 1965, C.I.]. Recueil 1965, p. 6.

Official citation:

Barcelona Traction, Light and Power Company, Limited,
Order of 11 June 1965, I.C.]. Reports 1965, p. 6.

N° de vente: 994
Sales number

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1965
1965 II juin 1965
IE juin
Rôle général
n° 50

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

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

ORDONNANCE

Présents : Sir Percy SPENDER, Président; M. WELLINGTON Koo,
Vice-Président ; MM. WINIARSKI, BADAWI, SPIROPOULOS,
sir Gerald FITzMAURICE, MM. KORETSKY, TANAKA,
Jessup, MorEeLLi, PADILLA NERVO, FORSTER, GROS, juges ;
M. AQUARONE, Greffier adjoint.

La Cour internationale de Justice,
ainsi composée,

après délibéré en chambre du conseil,

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

Rend l'ordonnance suivante :

Vu l'ordonnance du 28 juillet 1964 fixant au 1er juillet 1965 la
date d'expiration du délai pour le dépôt du contre-mémoire du
Gouvernement espagnol;

4
7 BARCELONA TRACTION (ORDONN. DU II VI 65)

Considérant que, par lettre du 29 mai 1965 recue et enregistrée au
Greffe le 31 mai 1965, l’agent du Gouvernement espagnol a exposé
les raisons pour lesquelles son gouvernement se voit dans l’obliga-
tion de demander une prorogation de ce délai jusqu’au 31 décembre
1965 ;

Considérant que, le 31 mai 1965, copie certifiée conforme de ladite
lettre a été communiquée à l’agent du Gouvernement belge, qui a
été invité à faire connaître les vues de son gouvernement à cet
égard ;

Considérant que, par lettre du 4 juin 1965, l’agent du Gouverne-
ment belge a exposé les raisons pour lesquelles ce gouvernement
considère que l’octroi d’un délai supplémentaire est injustifié;

Considérant que, par lettre du 10 juin 1965 dont copie certifiée
conforme a été dûment communiquée à l’agent du Gouvernement
belge, l'agent du Gouvernement espagnol a déclaré qu’il était auto-
risé à donner au nom de son gouvernement l'assurance qu'il s'engage
à maintenir la date du 31 décembre 1965 comme dernier délai pour
le dépôt de son contre-mémoire,

La Cour,

s’étant ainsi renseignée auprès des Parties,

reporte au 31 décembre 1965 la date d’expiration du délai fixé
pour le dépôt du contre-mémoire du Gouvernement espagnol;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au
Palais de la Paix, à La Haye, le onze juin mil neuf cent soixante-
cing, en trois exemplaires, dont l’un restera déposé aux archives de
la Cour et dont les autres seront transmis respectivement au
Gouvernement du Royaume de Belgique et au Gouvernement de
l'Etat espagnol.

Le Président,
(Signé) Percy C. SPENDER.

Le Greffier adjoint,
(Signé) S. AQUARONE.


        COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRÊTS,
     AVIS CONSULTATIFS ET ORDONNANCES

COMPÉTENCE JUDICIAIRE ET EXÉCUTION
  DES DÉCISIONS EN MATIÈRE CIVILE
         ET COMMERCIALE
            (BELGIQUE c. SUISSE)

        ORDONNANCE DU 5 AVRIL 2011

               2011
        INTERNATIONAL COURT OF JUSTICE

          REPORTS OF JUDGMENTS,
       ADVISORY OPINIONS AND ORDERS

  JURISDICTION AND ENFORCEMENT
       OF JUDGMENTS IN CIVIL
    AND COMMERCIAL MATTERS
         (BELGIUM v. SWITZERLAND)

           ORDER OF 5 April 2011

                         Mode officiel de citation :
              Compétence judiciaire et exécution des décisions
           en matière civile et commerciale (Belgique c. Suisse),
          ordonnance du 5 avril 2011, C.I.J. Recueil 2011, p. 341

                             Official citation :
                 Jurisdiction and Enforcement of Judgments
        in Civil and Commercial Matters (Belgium v. Switzerland),
            Order of 5 April 2011, I.C.J. Reports 2011, p. 341

                                                             1017
                                              No de vente:
ISSN 0074-4441                                Sales number
ISBN 978-92-1-071128-9

                                5 AVRIL 2011

                                ORDONNANCE

COMPÉTENCE JUDICIAIRE ET EXÉCUTION
  DES DÉCISIONS EN MATIÈRE CIVILE
         ET COMMERCIALE
        (BELGIQUE c. SUISSE)

  JURISDICTION AND ENFORCEMENT
       OF JUDGMENTS IN CIVIL
    AND COMMERCIAL MATTERS
     (BELGIUM v. SWITZERLAND)

                                5 APRIL 2011

                                  ORDER

                                                                         341

              INTERNATIONAL COURT OF JUSTICE

                               YEAR 2011                                            2011
                                                                                5 April
                                                                                General List
                               5 April 2011                                       No. 145

      JURISDICTION AND ENFORCEMENT
           OF JUDGMENTS IN CIVIL
        AND COMMERCIAL MATTERS
                   (BELGIUM v. SWITZERLAND)

                                 ORDER

Present : President Owada ; Vice‑President Tomka ; Judges Koroma,
           Al‑Khasawneh, Simma, Abraham, Keith, Sepúlveda‑Amor,
           Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
           Donoghue ; Registrar Couvreur.

  The International Court of Justice,
   Composed as above,
   Having regard to Article 48 of the Statute of the Court and to Arti-
cle 89, paragraph 2, of the Rules of Court,
   Having regard to the Application filed in the Registry of the Court on
21 December 2009, whereby the Kingdom of Belgium instituted proceed-
ings against the Swiss Confederation in respect of a dispute concerning
    “the interpretation and application of the Lugano Convention of
    16 September 1988 on jurisdiction and the enforcement of judgments
    in civil and commercial matters . . ., as well as the application of the
    rules of general international law governing the exercise of State
    authority, in particular in judicial matters . . . [, and relating] to the
    decision by Swiss courts not to recognize a judgment of the Belgian
    courts and not to stay proceedings which were later initiated in
    Switzerland on the subject of the same dispute”,

                                                                            4

    jurisdiction and enforcement of judgments (order 5 IV 11) 342

   Having regard to the Order dated 4 February 2010, whereby the Court,
taking into account the agreement of the Parties and the circumstances of
the case, fixed 23 August 2010 and 25 April 2011, respectively, as the
time‑limits for the filing of the Memorial of the Kingdom of Belgium and
the Counter‑Memorial of the Swiss Confederation,
   Having regard to the Order dated 10 August 2010, whereby the Presi-
dent of the Court, at the request of the Kingdom of Belgium, extended to
23 November 2010 and 24 October 2011, respectively, the time‑limits for
the filing of the Memorial and the Counter‑Memorial,
   Having regard to the Memorial of the Kingdom of Belgium, filed
within the time‑limit as extended,
   Having regard to the preliminary objections to the jurisdiction of the
Court and the admissibility of the Application which were raised by the
Swiss Confederation on 18 February 2011, within the time‑limit set by
Article 79, paragraph 1, of the Rules of Court ;
   Whereas, in a letter dated 21 March 2011 and received in the Registry
by facsimile on the same day, the Agent of the Kingdom of Belgium
stated that the Swiss Confederation, in its preliminary objections, had

    “indicate[d] that the reference by the [Swiss] Federal Supreme Court
    in its 30 September 2008 judgment to the non‑recognizability of a
    future Belgian judgment [did] not have the force of res judicata and
    [did] not bind either the lower cantonal courts or the Federal Supreme
    Court itself, and that there [was] therefore nothing to prevent a Bel-
    gian judgment, once handed down, from being recognized in Switzer-
    land in accordance with the applicable treaty provisions” ;
whereas he added that “[i]n the light of this statement Belgium, . . . in
concert with the Commission of the European Union, consider[ed] that it
[could] discontinue the proceedings it instituted against Switzerland” ;
whereas, by the same letter, the Agent of Belgium, referring to Article 89
of the Rules of Court, therefore “request[ed] the Court to made an order
recording [Belgium’s] discontinuance of the proceedings and directing
that the case be removed from the General List” ;
   Whereas a copy of the said letter was immediately communicated to
the Government of the Swiss Confederation, which was informed that the
time‑limit provided for in Article 89, paragraph 2, of the Rules of Court,
within which the Swiss Confederation could state whether it opposed the
discontinuance of the proceedings, had been fixed as 28 March 2011 ;
   Whereas, within the time‑limit thus fixed, the Swiss Confederation did
not oppose the said discontinuance,
   Places on record the discontinuance by the Kingdom of Belgium of the
proceedings ; and
   Orders that the case be removed from the List.

                                                                        5

     jurisdiction and enforcement of judgments (order 5 IV 11) 343

   Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fifth day of April, two thousand and
eleven, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Kingdom of
Belgium and the Government of the Swiss Confederation, respectively.

                                            (Signed) Hisashi Owada,
                                                       President.
                                          (Signed) Philippe Couvreur,
                                                         Registrar.

                                                                         6


       COUR INTERNATIONALE DE JUSTICE

          RECUEIL DES ARRÊTS,
   AVIS CONSULTATIFS ET ORDONNANCES

    CERTAINS ACTIFS IRANIENS
(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
               D’AMÉRIQUE)

    ORDONNANCE DU 15 NOVEMBRE 2019

              2019
       INTERNATIONAL COURT OF JUSTICE

        REPORTS OF JUDGMENTS,
     ADVISORY OPINIONS AND ORDERS

     CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
              OF AMERICA)

        ORDER OF 15 NOVEMBER 2019

                        Mode oﬃciel de citation :
                         Certains actifs iraniens
         (République islamique d’Iran c. Etats-Unis d’Amérique),
       ordonnance du 15 novembre 2019, C.I.J. Recueil 2019, p. 680

                            Oﬃcial citation:
                         Certain Iranian Assets
         (Islamic Republic of Iran v. United States of America),
         Order of 15 November 2019, I.C.J. Reports 2019, p. 680

                                           No de vente:
ISSN 0074-4441
ISBN 978-92-1-003836-2
                                           Sales number   1178

                                  15 NOVEMBRE 2019

                                   ORDONNANCE

        CERTAINS ACTIFS IRANIENS
(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
               D’AMÉRIQUE)

         CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
              OF AMERICA)

                                15 NOVEMBER 2019

                                      ORDER

                                                                          680

              INTERNATIONAL COURT OF JUSTICE

                                YEAR 2019
                                                                                2019
                             15 November 2019                                    15 November
                                                                                General List
                                                                                No. 164
               CERTAIN IRANIAN ASSETS
        (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                      OF AMERICA)

                                  ORDER

  The President of the International Court of Justice,
   Having regard to Article 48 of the Statute of the Court and to Arti-
cles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
   Having regard to the Application ﬁled in the Registry of the Court on
14 June 2016, whereby the Islamic Republic of Iran (hereinafter “Iran”)
instituted proceedings against the United States of America (hereinafter the
“United States”) with regard to a dispute concerning alleged violations by
the United States of the Treaty of Amity, Economic Relations, and Consular
Rights, which was signed by the two States in Tehran on 15 August 1955 and
entered into force on 16 June 1957 (hereinafter the “Treaty of Amity”),
   Having regard to the Order of 1 July 2016, whereby the Court ﬁxed
1 February 2017 and 1 September 2017 as the respective time-limits for
the ﬁling of a Memorial by Iran and a Counter-Memorial by the
United States,
   Having regard to the Memorial of Iran ﬁled within the time-limit thus ﬁxed,
   Having regard to the preliminary objections to the jurisdiction of the
Court and to the admissibility of the Application raised by the Govern-
ment of the United States on 1 May 2017,
   Having regard to the Order of 2 May 2017, whereby the Court recorded
that, under the provisions of Article 79, paragraph 5, of the Rules of
Court of 14 April 1978 as amended on 1 February 2001, the proceedings
on the merits were suspended,
   Having regard to the Judgment of 13 February 2019, whereby the Court
declared that it had jurisdiction to rule on the Application ﬁled by Iran on
14 June 2016 — except with respect to Iran’s claims relating to sovereign

                                                                            4

                certain iranian assets (order 15 XI 19)                   681

immunities and subject to the question of its jurisdiction to entertain Iran’s
claims of purported violations of Articles III, IV or V of the Treaty of
Amity predicated on the treatment accorded to Bank Markazi, a question
upon which the Court will only be able to rule in the following stage of the
proceedings — and that the said Application was admissible,

   Having regard to the Order of 13 February 2019, whereby the Court
ﬁxed 13 September 2019 as the time-limit for the ﬁling of the Counter-
Memorial of the United States,
   Having regard to the Order of 15 August 2019, whereby the President
extended that time-limit to 14 October 2019,
   Having regard to the Counter-Memorial of the United States ﬁled
within the time-limit as extended;
   Whereas, at a meeting held by the President of the Court with the
Agents and representatives of the Parties on 14 November 2019, the Agent
of Iran stated that, given the content of the Counter-Memorial of the
United States and the arguments contained therein, his Government
wished to be aﬀorded an opportunity to respond and requested nine to ten
months for the preparation of its Reply; whereas the Deputy Agent of the
United States indicated that his Government did not object to a second
round of written pleadings, and that, in view of the complexity of the case,
a signiﬁcant amount of time would be required for the preparation by the
United States of its Rejoinder; and whereas he added that his Government
would defer to the Court as to the exact amount of time necessary;
   Taking into account the views of the Parties,
  Authorizes the submission of a Reply by the Islamic Republic of Iran
and a Rejoinder by the United States of America;
  Fixes the following time-limits for the ﬁling of those written pleadings:

  17 August 2020 for the Reply of the Islamic Republic of Iran;
  17 May 2021 for the Rejoinder of the United States of America; and
  Reserves the subsequent procedure for further decision.
  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this ﬁfteenth day of November, two thou-
sand and nineteen, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Islamic Republic of Iran and the Government of the United States of
America, respectively.

                                    (Signed) Abdulqawi Ahmed Yusuf,
                                                    President.
                                         (Signed) Philippe Gautier,
                                                      Registrar.

                                                                            5


536 NUCLEAR TESTS (ORDER 20 XII 74)

THE COURT,
Unanimously,

Finds that the Application of the Government of Fiji for permission to
intervene in the proceedings instituted by New Zealand against France
lapses, and that no further action thereon is called for on the part of the
Court.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twentieth day of December, one
thousand nine hundred and seventy-four, in four copies, one of which will
be deposited in the archives of the Court, and the others transmitted to
the Government of Fiji, the Government of New Zealand, and the French
Government, respectively.

(Signed) Manfred LACHS,
President.

(Signed) S, AQUARONE,
Registrar.

Judge Gros makes the following declaration:

Je vote la présente ordonnance pour des motifs différents de ceux
qu’elle indique. Le document présenté par le Gouvernement fidjien le
18 mai 1973 ne pouvait à aucun titre être considéré comme une demande
d’intervention au sens de l’article 62 du Statut et cette demande aurait dû
être rejetée dès l’origine.

Judge ONYEAMA makes the following declaration:

I have voted in favour of the Order, although, in my view, the reason
given for it, namely that the claim of the applicant State no longer has
any object and in consequence there will no longer be any proceedings
before the Court in which intervention would be possible, carries an
implication with which I am unable to agree. The implication is that if
the claim had had an object and the Court had been called upon to give a
decision thereon, there would have been a possibility of intervention in
this case.

Fiji was not, at any time material to these proceedings, a party to the
General Act of 1928 nor to the optional clause of the Statute of the Court
on which the applicant State sought to base the Court’s jurisdiction, nor

5


594

                SEPARATE OPINION OF JUDGE TOMKA

   Jurisdiction of the Court under Article 36 (2) of Statute — Existence of a
dispute — No prior negotiations or notice necessary before seising Court —
Existence of a dispute a condition for exercise of jurisdiction — Dispute in principle
to exist at date of Application — Court has applied condition flexibly and taken
into account subsequent events — Proceedings clarified that a dispute between the
Marshall Islands and Pakistan exists — Court should have considered other
arguments against jurisdiction.

  Admissibility — Obligations relating to nuclear disarmament alleged to exist
under customary international law — Nature of these alleged obligations —
Disarmament requires co-operation between all States, in particular nuclear
States — Court cannot consider position of one nuclear State without considering
and understanding positions of other nuclear States — Absence of other nuclear
powers before Court prevents consideration of claims in proper multilateral
context — Application inadmissible.

   1. For the ﬁrst time in almost a century of adjudication of inter-State
disputes in the Peace Palace, the “World” Court (the Permanent Court of
International Justice and the International Court of Justice) has dismissed
a case on the ground that no dispute existed between the Applicant and
the Respondent prior to the ﬁling of the Application instituting proceed-
ings 1. The Court seems not to be interested in knowing whether a dispute
between them exists now.
   2. I am not convinced by the approach taken by the Court, despite
many references to its case law. In my view, other decisions of the Court,
and its predecessor, point in a diﬀerent direction. Therefore, to my regret,
I am unable to support the Court’s conclusion based on the absence of a
dispute.

    1 This does not include requests for interpretation under Article 60 of the Court’s

Statute, which also — at least in the English version — uses the term “dispute” (the French
text of the Statute uses the term “contestation”) (see, e.g., Request for Interpretation of
the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment,
I.C.J. Reports 1950, p. 403). Where there is no disagreement between the parties about the
meaning and scope of a Judgment, there is nothing to interpret (see Request for Interpre-
tation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America) (Mexico v. United States of America),
Judgment, I.C.J. Reports 2009, p. 17, para. 45). Requests for interpretation cannot serve the
purpose of seeking a decision of the Court on matters not brought before the Court in the
original proceedings (see, e.g., Request for Interpretation of the Judgment of 15 June 1962
in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v.
Thailand), Judgment, I.C.J. Reports 2013, pp. 303-304, para. 56).

46

595              nuclear arms and disarmament (sep. op. tomka)

   3. Is it really the case that the Marshall Islands and Pakistan did not,
by April 2014, have a dispute relating to the latter’s compliance with the
obligations relating to nuclear disarmament that the Marshall Islands
alleges to exist under customary international law, and that they do not
have such a dispute now? Do the positions of the Marshall Islands and
Pakistan on the latter’s performance of its alleged obligations coincide?

  4. The Marshall Islands in its Application alleges, inter alia, that
            “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.
            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 inter-
         national control, 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.” (Applica-
         tion instituting proceedings, p. 12, paras. 13-14.)

On the basis of these allegations, the Marshall Islands requests the Court
to issue a declaratory judgment ﬁnding “that Pakistan has violated and
continues to violate its international obligations under customary interna-
tional law” through various acts and omissions (emphasis added) 2. The
Marshall Islands further requests the Court

         “to order Pakistan to take all steps necessary to comply with its obli-
         gations 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 Judgment, 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” (ibid., p. 38, para. 62).

   5. It is a question for the merits whether obligations under customary
international law exist in the terms for which the Marshall Islands con-
tends, thus binding also on Pakistan. However, Pakistan denies the claims
made by the Marshall Islands in this case. In its Counter-Memorial, it
“submit[ted] that the [Marshall Islands’] claims against Pakistan are man-
ifestly without legal merit or substance”.

     2   For the full text of the request, see paragraph 11 of the Judgment.

47

596        nuclear arms and disarmament (sep. op. tomka)

                              I. Jurisdiction

   6. Pakistan has raised nine grounds on which it claims “that the Court
must decline to entertain the [Marshall Islands’] claims”. Among these
grounds, Pakistan argues that there was an “absence of a dispute (legal or
otherwise) between the [Marshall Islands] and Pakistan, existing at the
time of the ﬁling of the Application”.
   7. The Court has concluded that it “does not have jurisdiction under
Article 36, paragraph 2, of its Statute” (Judgment, para. 54).
   8. It is to be recalled that the basis of jurisdiction relied upon by the
Marshall Islands is two declarations under Article 36, paragraph 2, of the
Statute of the Court, one deposited by the Marshall Islands on 24 April
2013 and the other by Pakistan on 13 September 1960.
   9. When analysing issues of jurisdiction, caution has to be taken in
relying on diﬀerent pronouncements of the Court, in particular, depend-
ing upon whether the basis invoked is Article 36 (2) declarations or a
compromissory clause contained in a treaty. Both declarations and com-
promissory clauses may set certain preconditions for the seising of the
Court. The Court’s jurisprudence has to be viewed in light of the relevant
provisions underpinning its jurisdiction in any given case.

   10. The Court in the present Judgment (see paragraph 35) recalls its
previous view, that when “[i]t has been seised on the basis of declarations
made . . . which . . . do not contain any condition relating to prior nego-
tiations to be conducted within a reasonable time” (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi-
nary Objections, Judgment, I.C.J. Reports 1998, p. 322, para. 109), no
such negotiations are required prior to the ﬁling of the Application. In
the same Judgment, the Court clariﬁed that a State is “not bound to
inform [the other State] of its intention to bring proceedings before the
Court” (ibid., p. 297, para. 39).
   11. Pakistan argues that “[i]n order for the Court to exercise its judicial
function, it must . . . conﬁrm the existence of a dispute between the States
parties to a case before the Court at the time the Application was submit-
ted to the Court”.
   12. Although the Court has, on a number of occasions, stated that the
existence of a dispute is a condition for its jurisdiction, in my view, it is
more properly characterized as a condition for the exercise of the Court’s
jurisdiction. The jurisdiction of this Court is based on the consent of
States. If States make declarations under Article 36 (2) of the Statute
“they recognize as compulsory ipso facto and without special agreement,
in relation to any other State accepting the same obligation, the jurisdic-
tion of the Court in all legal disputes concerning [the matters speciﬁed in
letters (a) to (d) of that paragraph]”. The Court’s jurisdiction in relation
to a State which has made a declaration is established from the moment
the declaration is deposited with the Secretary-General of the United
Nations, and remains in force as long as it is either not withdrawn or has

48

597         nuclear arms and disarmament (sep. op. tomka)

not lapsed if it has been made for a speciﬁed period of time. The Court
has explained that

      “by the deposit of its Declaration of Acceptance [of the Court’s juris-
      diction under Article 36 (2) of the Statute] with the Secretary-General,
      the accepting State becomes a Party to the system of the Optional
      Clause in relation to the other declarant States, with all the rights and
      obligations deriving from Article 36. The contractual relation between
      the Parties and the compulsory jurisdiction of the Court resulting
      therefrom are established, ‘ipso facto and without special agreement’,
      by the fact of the making of the Declaration.” (Right of Passage over
      Indian Territory (Portugal v. India), Preliminary Objections, Judg-
      ment, I.C.J. Reports 1957, p. 146; emphasis added.)

The Court further speciﬁed that it is on the date when the second declar-
ant State deposits its Declaration of Acceptance “that the consensual
bond, which is the basis of the Optional Clause, comes into being between
the States concerned” (ibid.).
   13. Thus, it is not the emergence of a dispute which establishes the
Court’s jurisdiction or perfects it. The emergence of a dispute is a neces-
sary condition, in the event that one of the disputing parties which has
accepted the Court’s jurisdiction decides to bring an Application institut-
ing proceedings before the Court against another State with an Article 36
declaration in force, for the Court to exercise that jurisdiction. The disap-
pearance of the dispute during the proceedings, either because the parties
have reached a settlement or because of intervening circumstances, does
not deprive the Court of its jurisdiction. However, the Court in such a
situation will not give any judgment on the merits, as there is nothing
upon which to decide. It would limit itself either to taking note of the
settlement in its Order and directing the Registrar “that the case be
removed from the list” (see, e.g., Passage through the Great Belt (Fin-
land v. Denmark), Order of 10 September 1992, I.C.J. Reports 1992,
p. 349) or concluding that a claim “no longer has any object and that the
Court is therefore not called upon to give a decision thereon” (see,
e.g., Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 272, para. 62; Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 478, para. 65).
   14. The function of the Court “is to decide in accordance with interna-
tional law such disputes as are submitted to it” (Article 38, paragraph 1,
of the Statute). The Court does so as the principal judicial organ of the
United Nations, thus contributing to the achievement of its purposes, one
of them being “to bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes” (Article 1, paragraph 1, of the Charter of the
United Nations). In order to discharge this function, the dispute must still
exist when the Court decides on its merits, provided that it has jurisdic-

49

598        nuclear arms and disarmament (sep. op. tomka)

tion and the Application is admissible. While the formulation of Arti-
cle 38, paragraph 1, of the Statute implies that the dispute will already
exist when proceedings before the Court are instituted, the phrase about
the Court’s function, added to the text of Article 38 at the Conference in
San Francisco, was not intended to constitute a condition for the Court’s
jurisdiction. Article 38 concerns the law to be applied by the Court, while
for its jurisdiction — in addition to Articles 34 and 35 — Articles 36 and
37 are particularly relevant. What the Court says in paragraph 39 of its
present Judgment should thus be viewed as a mere observation and not as
determinative for its jurisdiction.

   15. As the Court has stated on a number of occasions the “dispute
must in principle exist at the time the Application is submitted to the
Court” (Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 442, para. 46,
quoting Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Pre-
liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30
(emphasis added); see also 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. 27, para. 52; Appli-
cation of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment,
I.C.J. Reports 2008, pp. 437-438, paras. 79-80, quoting 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), p. 613, para. 26).
   16. Despite repeating this general rule (see Judgment, para. 39), the
Court has, however, adopted rather a very strict requirement that the
dispute must have existed prior to the ﬁling of the Marshall Islands’
Application.
   17. In some cases, circumstances will dictate that the dispute must
indeed exist as at the date of the Application. Such was the situation in
the recent case concerning Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), for in
that case Colombia’s denunciation of the Pact of Bogotá took eﬀect
almost immediately after the Application was ﬁled (see Preliminary Objec-
tions, Judgment, I.C.J. Reports 2016 (I), pp. 49-50, para. 17, pp. 52-53,
para. 24, p. 56, para. 34, and p. 60, para. 48). As Colombia’s acceptance
of the jurisdiction of the Court under the Pact had thus been terminated
upon the taking eﬀect of its denunciation, Nicaragua could not have sub-
sequently ﬁled an Application and the Court thus considered whether a
dispute had previously emerged (ibid., paras. 52 et seq.). Likewise, in the
Georgia v. Russia case, the Court was considering a speciﬁc compromis-
sory clause contained in the International Convention on the Elimination

50

599         nuclear arms and disarmament (sep. op. tomka)

of All Forms of Racial Discrimination that required that there be a “dis-
pute . . . with respect to the interpretation or application of this Conven-
tion, which is not settled by negotiation or by the procedures expressly
provided for in this Convention . . .” (Article 22, quoted in 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. 81, para. 20; emphasis added).
There thus had to be a dispute that “is not settled by negotiation”, a
requirement which the Court characterized as among the “preconditions
to be fulﬁlled before the seisin of the Court” (ibid., p. 128, para. 141). If a
compromissory clause requires prior negotiations before ﬁling the Appli-
cation as one of the “preconditions” for seising the Court, logically the
dispute should have arisen prior to instituting the proceedings before the
Court. Moreover, the dispute and the required negotiations should have
been related to the subject-matter of the Convention which contains the
compromissory clause — racial discrimination in the Georgia v. Russia
case. Any kind of bilateral political talks would not satisfy that require-
ment. The Judgment in Georgia v. Russia should be viewed in this light.
Therefore, I cannot agree with the view of those who consider that it
indicates the beginning of a more formalistic approach to the existence of
a dispute in the Court’s jurisprudence.

  18. Where there are no circumstances requiring that the dispute exist
by a particular date, the Court has been rather more ﬂexible in not limit-
ing itself only to the period prior to the ﬁling of the Application in order
to ascertain whether a dispute existed between the parties before it.
  19. In the Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
case, that Court, when “verify[ing] whether there [was] a dispute between
the Parties that falls within the scope of [the] provision [of Article IX of
the Convention]” (Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), p. 614, para. 27), observed that
      “[w]hile Yugoslavia has refrained from ﬁling a Counter-Memorial on
      the merits and has raised preliminary objections, it has nevertheless
      wholly denied all of Bosnia and Herzegovina’s allegations, whether at
      the stage of proceedings relating to the requests for the indication of
      provisional measures, or at the stage of the present proceedings relating
      to those objections” (ibid., para. 28; emphasis added).

Manifestly, a very serious military conﬂict in Bosnia and Herzegovina
had been going on already for a year prior to the ﬁling of the Application
on 20 March 1993. The war on the territory of Bosnia and Herzegovina
broke out shortly after its declaration of independence on 6 March 1992.
The Court, however, did not inquire whether any allegation or claim of a

51

600          nuclear arms and disarmament (sep. op. tomka)

breach of the obligations under the Genocide Convention had been made
prior to the submission of the case to the Court. It limited itself to noting
that “the principal requests submitted by Bosnia and Herzegovina are for
the Court to adjudge and declare that Yugoslavia has in several ways
violated the Genocide Convention” (I.C.J. Reports 1996 (II), p. 614,
para. 28) and then noting, in the passage quoted above, the denial of
these allegations by the Respondent in the course of the proceedings
before the Court. The Court did not refer to a denial of such allegations
prior to its seisin by the Applicant.
   20. Moreover, from an early period of its adjudication the World
Court has shown a reasonable amount of ﬂexibility, not being overly for-
malistic, when it comes to the timing at which jurisdictional requirements
are to be met (see similarly Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide (Croatia v. Serbia), Pre-
liminary Objections, Judgment, I.C.J. Reports 2008, p. 438, para. 81).

   21. In a case decided in 1925, the Respondent argued, inter alia, “that
the Court has no jurisdiction because the existence of a diﬀerence of opin-
ion in regard to the construction and application of the Geneva Conven-
tion had not been established before the ﬁling of the Application” (Certain
German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6,
1925, P.C.I.J., Series A, No. 6, p. 13; emphasis added). The Court looked
at the compromissory clause, and noticed that it “does not stipulate that
diplomatic negotiations must ﬁrst of all be tried” and that under that
clause “recourse may be had to the Court as soon as one of the Parties
considers that a diﬀerence of opinion arising out of the construction and
application of [certain Articles of the Convention] exists” (ibid., p. 14). In
dismissing the objection the Court made a pronouncement which, in my
view, is clearly apposite to the case at hand. It said:

         “Now a diﬀerence of opinion does exist as soon as one of the Gov-
      ernments concerned points out that the attitude adopted by the other
      conﬂicts with its own views. Even if, under [the compromissory
      clause], the existence of a deﬁnite dispute were necessary, this condi-
      tion could at any time be fulﬁlled by means of unilateral action on
      the part of the applicant Party. And the Court cannot allow itself to
      be hampered by a mere defect of form, the removal of which depends
      solely on the Party concerned.” (Ibid.) 3
   22. This dictum originated from the principle which the Permanent
Court had enunciated a year earlier, in 1924, in the Mavrommatis Pales-
tine Concessions case (see Application of the Convention on the Prevention

   3 The force of this statement is strengthened by the fact that it seems all elected judges

were in agreement with it; only a “National Judge”, as judges ad hoc were at that time
designated, chosen by the Respondent, dissented.

52

601         nuclear arms and disarmament (sep. op. tomka)

and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 613, para. 26). In response to an argument that the proceedings were
not validly instituted because “the application was ﬁled before [the rele-
vant protocol] had become applicable”, the Permanent Court stated:

         “Even if the grounds on which the institution of proceedings was
      based were defective for the reason stated, this would not be an ade-
      quate reason for the dismissal of the applicant’s suit. The Court,
      whose jurisdiction is international, is not bound to attach to matters
      of form the same degree of importance which they might possess in
      municipal law. Even, therefore, if the application were premature
      because the Treaty of Lausanne had not yet been ratiﬁed, this circum-
      stance would now be covered by the subsequent deposit of the neces-
      sary ratiﬁcations.” (Mavrommatis Palestine Concessions, Judgment
      No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)
   23. The Court applied this principle in Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Her-
zegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), pp. 613-614, para. 26. As the Court there observed (ibid.), it
also did so in Northern Cameroons (Cameroon v. United Kingdom), Pre-
liminary Objections, Judgment, I.C.J. Reports 1963, p. 28, and in Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, pp. 428-429, para. 83. Indeed, in the former Judgment, the Court
highlighted that “the Court, like its predecessor, the Permanent Court of
International Justice, has always had recourse to the principle according
to which it should not penalize a defect in a procedural act which the
applicant could easily remedy” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), p. 613, para. 26; emphasis added).

   24. More recently, the Court invoked this principle in 2008 in the case
concerning the Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2008, p. 412. The Court “emphasized that
a State which decides to bring proceedings before the Court should care-
fully ascertain that all the requisite conditions for the jurisdiction of the
Court have been met at the time proceedings are instituted” (ibid., p. 438,
para. 80). Nonetheless, the Court went on that it “has also shown realism
and ﬂexibility in certain situations in which the conditions governing the
Court’s jurisdiction were not fully satisﬁed when proceedings were initi-
ated but were subsequently satisﬁed” (ibid., p. 438, para. 81). It referred
(ibid., p. 439, para. 82) to the principle outlined in the Mavrommatis case,

53

602         nuclear arms and disarmament (sep. op. tomka)

noted above, whereby the Court “is not bound to attach to matters of
form the same degree of importance which they might possess in munici-
pal law”. The Court concluded that

         “What matters is that, at the latest by the date when the Court
      decides on its jurisdiction, the applicant must be entitled, if it so wishes,
      to bring fresh proceedings in which the initially unmet condition would
      be fulﬁlled. In such a situation, it is not in the interests of the sound
      administration of justice to compel the applicant to begin the proceed-
      ings anew — or to initiate fresh proceedings — and it is preferable,
      except in special circumstances, to conclude that the condition has,
      from that point on, been fulﬁlled.” (Application of the Convention on
      the Prevention and Punishment of the Crime of Genocide (Croatia v.
      Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 441,
      para. 85.)
It explained the rationale behind the principle as follows:
      “it is concern for judicial economy, an element of the requirements of
      the sound administration of justice, which justiﬁes application of the
      jurisprudence deriving from the Mavrommatis Judgment in appropri-
      ate cases. The purpose of this jurisprudence is to prevent the needless
      proliferation of proceedings.” (Ibid., p. 443, para. 89.)
   25. If the existence of a dispute is considered necessary for the Court’s
jurisdiction (as stated above in paragraph 12, I consider it rather a condi-
tion for the exercise of the Court’s jurisdiction), there is no compelling
reason why the principle cannot be applied to such a condition. As I have
already outlined, that was the position taken in the Certain German Inter-
ests case, which was cited by the Court in the more recent Croatia v. Ser-
bia case (see ibid., p. 439, para. 82). Indeed, the Court in the latter case
highlighted that “it is of no importance which condition was unmet at the
date the proceedings were instituted, and thereby prevented the Court at
that time from exercising its jurisdiction, once it has been fulﬁlled subse-
quently” (ibid., p. 442, para. 87).

  26. This is, as I understand it, the jurisprudence of the Court on the
conditions to be met for its jurisdiction — not excessively formalistic, but
rather reasonable, allowing it to exercise its function to resolve disputes
between States brought before it. I cannot agree with the view that the
Judgment in Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal) (I.C.J. Reports 2012 (II), p. 422) represents a
departure in the Court’s jurisprudence. That case was about the failure of
Senegal to bring to justice Hissène Habré to account for acts committed
during his rule as President of Chad. In the diplomatic exchanges prior to
bringing the matter before the Court, Belgium always argued in terms of
obligations under the Convention against Torture (ibid., pp. 444-445,
para. 54). It was only in the Application instituting proceedings that the

54

603        nuclear arms and disarmament (sep. op. tomka)

alleged crimes against humanity under customary international law were
mentioned. The Court concluded that there existed a dispute in regard to
“the interpretation and application of Articles 6, paragraph 2, and 7,
paragraph 1, of the Convention” (Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), I.C.J. Reports 2012 (II),
p. 444, para. 52), but that it “did not relate to breaches of obligations
under customary international law” (ibid., p. 445, para. 55). The Court
knew that it thus had jurisdiction, under the compromissory clause con-
tained in Article 30, paragraph 1, of the Convention against Torture, to
deal with the matter brought before it, and it could thus resolve the dis-
pute. It was clear that Belgium would not contemplate re-submitting to
the Court a dispute relating to obligations under customary international
law. In fact, Belgium welcomed the Judgment and was among those
States which, in addition to the African Union and the European Union,
assisted Senegal — in particular ﬁnancially — to comply with the Judg-
ment. Senegal is to be commended for the measures it has taken in the
implementation of its obligations. It charged Hissène Habré, who was
found guilty of, inter alia, torture by a Judgment rendered on 30 May 2016
and sentenced to life imprisonment. The victims ﬁnally, after more than a
quarter of a century, have seen justice delivered. In light of these facts, the
Court’s Judgment in Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal) should rather be seen as wise and not
overly formalistic. The Court was certainly prudent not to foreclose any
future developments in respect of obligations of States that might exist
under customary international law to prosecute perpetrators of alleged
crimes against humanity.

   27. It is true that the Marshall Islands had, for some time, not taken a
particularly active position on nuclear disarmament in multilateral fora,
including in its voting until 2012 in the United Nations on these issues,
for reasons which do not need elaboration. However, as it appears from
the record, the Marshall Islands has, since at least 2013, revisited its posi-
tion and voiced its dissatisfaction about the compliance, or rather lack
thereof, with obligations related to nuclear disarmament alleged to exist
under, inter alia, customary international law by nuclear powers, among
them Pakistan. In September 2013, its Foreign Minister diplomatically
“urge[d] all nuclear weapons states to intensify eﬀorts to address their
responsibilities in moving towards an eﬀective and secure disarmament”
(see Judgment, para. 46, emphasis added). I do not take issue with the
Court’s analysis of this statement, although it does indicate a shift in the
Marshall Islands’ approach.

   28. In February 2014, the Marshall Islands, while renewing its call to
all nuclear powers made in the United Nations in September 2013,

55

604        nuclear arms and disarmament (sep. op. tomka)

expressed its views more openly, asserting that “States possessing nuclear
arsenals are failing to fulﬁl their legal obligations” regarding “multilateral
negotiations on achieving and sustaining a world free of nuclear weapons
[which] are long overdue” (Judgment, para. 26). The allegation is made
against all nuclear-weapon States, without exception. This has been sub-
sequently conﬁrmed by the fact that the Marshall Islands ﬁled, on
24 April 2014, nine Applications against the nine States which are known
or believed to possess nuclear weapons. Pakistan did participate at that
Conference in Nayarit. No doubt, the Marshall Islands’ assertion was
aimed at all nuclear States, including Pakistan.

   29. In my view, a State is not required under international law to give
notice to another State of its intention to institute proceedings before the
Court. A State can formulate its claim in the Application seising the
Court if it believes that it has a dispute with another State, or considers
that the other State is in breach of international obligations owed to the
Applicant. To require a State to give prior notice may entail, in the pres-
ent optional clause system of the Court’s compulsory jurisdiction, a risk
that the Court will be deprived of its jurisdiction prior to receiving an
Application instituting proceedings. A number of declarations made
under Article 36, paragraph 2, of the Court’s Statute may be modiﬁed
or withdrawn with immediate eﬀect by simple notiﬁcation to the
Secretary-General of the United Nations. And it is not unknown that
some declarations have been modiﬁed in the past, including recently, in
order to prevent another State from bringing before the Court a particular
dispute or a particular category of disputes.
   30. The proceedings before the Court in this case have clariﬁed that
there is a dispute between the Marshall Islands and Pakistan about the
latter’s performance of obligations related to nuclear disarmament and
alleged to exist under customary international law. Therefore, in my view,
the conclusion that the Court has no jurisdiction in the absence of a dis-
pute is not justiﬁed in the case at hand. In order to aﬃrm its jurisdiction
the Court would have to deal with the other grounds raised by Pakistan
against its having jurisdiction. The Court did not consider it necessary to
proceed that way in light of the conclusion it reached.

                             II. Admissibility

  31. Assuming that all of the grounds raised by Pakistan against the
Court’s having jurisdiction were to be rejected, the Court would proceed
to the merits, provided that the Application and the claims formulated
therein are admissible. In my view, however, the nature of the obligations
said to exist under customary international law in the ﬁeld of nuclear
disarmament which are relied upon in this case renders the Application
inadmissible under the present, rather unsatisfactory, system of the
Court’s jurisdiction.

56

605          nuclear arms and disarmament (sep. op. tomka)

   32. The Marshall Islands does not invoke, in this case, the provisions
of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (herein-
after the “NPT”), as Pakistan is not a party thereto. Nonetheless, the
obligations that it alleges to exist under customary international law are
in similar terms to Article VI thereof.
   33. Article VI of the NPT reads as follows:
         “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.”
  34. The Court in its advisory opinion analysed this provision and
expressed its view in the following terms:
         “The legal import of that obligation goes beyond that of a mere
      obligation of conduct; the obligation involved here is 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.” (Legality of the Threat or
      Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
      p. 264, para. 99.)
The Court characterized the obligation as “twofold” — as an “obligation
to pursue and to conclude negotiations” (ibid., para. 100). It emphasized
that “any realistic search for general and complete disarmament, especially
nuclear disarmament, necessitates the co-operation of all States” (ibid.).
   35. Indeed, “disarmament treaties or treaties prohibiting the use of
particular weapons” have been regarded as an instance of the kind of
treaty, “the objective of which can only be achieved through the inter-
dependent performance of obligations by all parties” 4. One respected
scholar, and now international judge, observes in this respect:
        “It is clear . . . in the context of a disarmament treaty, that each
      State reduces its military power because and to the extent that the
      other parties do likewise. Non-performance, or material breach, of
      the treaty by one of its parties would threaten the often fragile military
      balance brought by the agreement.” 5

   4 Bruno Simma and Christian J. Tams, “1969 Vienna Convention, Article 60: Termina-

tion or suspension of the operation of a treaty as a consequence of its breach”, in Olivier
Corten and Pierre Klein (eds.), The Vienna Convention on the Law of Treaties: A Commen-
tary, Vol. II, Oxford University Press, 2011, p. 1365. See also Yearbook of the Interna-
tional Law Commission, 2001, Vol. II, Part Two, p. 119, paragraph 13 of the commentary
to Article 42, or James Crawford, The International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002,
p. 259.
   5 Linos-Alexander Sicilianos, “The Classiﬁcation of Obligations and the Multila-

teral Dimension of the Relations of International Responsibility” (2002) 13 (5) European
Journal of International Law, p. 1134.

57

606          nuclear arms and disarmament (sep. op. tomka)

In other words, the performance of the obligation by a State is condi-
tional on the performance of the same obligation by the other States 6. If
customary obligations were found to exist in the terms for which the
Marshall Islands has contended, these considerations would be more gen-
erally relevant. In the ﬁeld of nuclear disarmament, it is unrealistic to
expect that a State will disarm unilaterally. International law does not
impose such an obligation. In respect of the treaty-based obligations
of the NPT, it rather provides for achieving that goal through negotia-
tions in good faith, through the co-operation of all States. Customary
obligations in this ﬁeld, if they were proved to exist, would most likely
not diﬀer.
   36. The most noble and important goal of getting the world rid of
nuclear arms, to which the absolute majority — if not all — nations sub-
scribe, can realistically be achieved only through balancing the security
interests of the States concerned, in particular all nuclear powers and
other countries with signiﬁcant military capabilities.

   37. It seems that the Marshall Islands is aware of this reality. It has
ﬁled Applications against all nuclear powers alleging that they are in
breach of their obligations under the NPT and/or customary interna-
tional law. Six of the nuclear powers are not before the Court as they
have not accepted the Marshall Islands’ invitation to accept the Court’s
jurisdiction under Article 38, paragraph 5, of the Rules of Court.

   38. Enquiry into the compliance by one nuclear power with its obliga-
tions relating to nuclear disarmament, including any obligation to negoti-
ate in good faith, invites consideration of the position taken by all other
nuclear powers in relation to the same obligations which are or may be
binding on them. It is only with an understanding of the positions taken
by other States that the Court can stand on safe ground in considering
the conduct of any one State alone, which necessarily is inﬂuenced by the
positions of those other States, and whether that one State alone is open
to achieving the goal of nuclear disarmament through bona fide negotia-
tions. This is not a question of ruling on the responsibility of those other
States as a precondition for ruling on the responsibility of the Respon-
dent such that the Monetary Gold principle would apply. It is rather a
question of whether it is possible for the Court, in this context, to under-
take consideration of a single State’s conduct without considering and
understanding the positions taken by the other States with which that
State (the Respondent in the case at hand) would need to have negoti-
    6 The nature of the obligation is well described in the commentary to the Articles on

State Responsibility as referring to an obligation “where each party’s performance is eﬀec-
tively conditioned upon and requires the performance of each of the others”: Yearbook of
the International Law Commission, 2001, Vol. II, Part Two, p. 119, paragraph 13 of the
commentary to Article 42; see also James Crawford, The International Law Commission’s
Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge Univer-
sity Press, 2002, p. 259.

58

607        nuclear arms and disarmament (sep. op. tomka)

ated, and with which it would need to agree on the steps and measures to
be taken by all concerned in order to achieve the overall goal of nuclear
disarmament.
   39. The issues raised in the present proceedings are not of a bilateral
nature between the Marshall Islands and Pakistan. I am convinced that
the Court cannot meaningfully engage in a consideration of Pakistan’s
conduct when other States — whose conduct would necessarily also be at
issue — are not present before the Court to explain their positions and
actions.
   40. This case illustrates the limits of the Court’s function, resulting
from the fact that it has evolved from international arbitration, which is
traditionally focused on bilateral disputes. The Statute of the Court is
expressly based on the Statute of its predecessor, the Permanent Court of
International Justice. That Statute was drafted in 1920 and major powers
opposed the idea of granting the Court compulsory jurisdiction. That
approach did not change in 1945 when the International Court of Justice
was conceived as the principal judicial organ of the United Nations. Had
the founders of that Organization endowed the Court with universal com-
pulsory jurisdiction, all Members of the United Nations would have been
subject to its jurisdiction. There would not have then existed obstacles to
the Court’s exercising its jurisdiction fully and thus contributing to the
achievement of the purposes and goals of the Organization.
   41. To my sincere and profound regret, I have to conclude that the
absence of other nuclear powers in the proceedings prevents the Court
from considering the Marshall Islands’ claims in their proper multilateral
context, which is also determined by the positions taken by those other
powers, and thus renders the Application inadmissible. For this reason I
have joined those of my colleagues who have concluded that the Court
cannot proceed to the merits of the case.

                                                 (Signed) Peter Tomka.

59