861

                       DISSENTING OPINION
                     OF VICE-PRESIDENT YUSUF

   Judgment fails to distinguish three cases brought by the Marshall Islands —
Different facts and arguments relevant to each case — Existence of a dispute —
Matter for objective determination — Positively opposed juridical views
required — Subjective criterion of “awareness” not a condition — “Awareness”
has no basis in jurisprudence of Court — It also undermines sound administration
of justice — Incipient dispute must exist prior to application to the Court —
Dispute can crystallize during proceedings — Subject-matter of a dispute must be
defined — At issue is the United Kingdom’s compliance with its obligation under
Article VI of the Nuclear Non-Proliferation Treaty — Evidence shows nascent
dispute prior to application.

                              I. Introduction

   1. I ﬁnd myself unable to subscribe to the decision of the Court which
upholds the ﬁrst preliminary objection of the United Kingdom based on
the absence of a dispute. The reasons for my dissent are succinctly set
forth in the following paragraphs.
   2. First, the Judgment fails to distinguish the objections raised by the
United Kingdom, and its arguments regarding the inexistence of a dis-
pute with the Republic of the Marshall Islands, from those in the two
other cases of the Marshall Islands v. India and Marshall Islands v. Paki-
stan. The issues of fact and law underlying the objections raised were
quite diﬀerent in the three cases. But the Judgments treat the three cases
as though they were almost identical and argued in the same manner by
the respondent States. I will discuss in this opinion the distinctive features
and the facts underlying the Marshall Islands v. United Kingdom case and
the preliminary objections submitted by the United Kingdom.

   3. Secondly, I disagree with the introduction by the majority of the
subjective criterion of “awareness” in the determination of the existence
or inexistence of a dispute. This is a clear — and undesirable — departure
from the consistent jurisprudence of the Court on this matter.
   4. Thirdly, it is diﬃcult in my view to determine the existence or inex-
istence of a dispute without specifying its subject-matter. The Judgment
does not clearly identify or circumscribe the subject-matter of the dispute
which is claimed to exist between the Parties.

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862         nuclear arms and disarmament (diss. op. yusuf)

   5. Finally, I am of the view that an incipient dispute existed between
the Marshall Islands and the United Kingdom prior to the submission of
the Application by the former, and that this dispute further crystallized
during the proceedings before the Court. The evidence on which this con-
clusion is based is examined in Section VI below.

       II. The Distinctive Features of the MARSHALL ISLANDS v.
                  UNITED KINGDOM Case with regard
                    to the Existence of a Dispute

   6. The ﬁrst distinctive feature of this case, as compared to the other
two cases submitted by the Marshall Islands against India and Pakistan
respectively, which deserves to be noted is that both the Marshall Islands
and the United Kingdom are parties to the Treaty on the Non-Prolifera-
tion of Nuclear Weapons (NPT), the former having acceded to it in 1995,
while the latter ratiﬁed it in 1968. The proceedings instituted by the Mar-
shall Islands against the United Kingdom are about the interpretation
and application of this Treaty, and in particular Article VI thereof.
   7. Article VI 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.”
   8. The Marshall Islands contends that the United Kingdom failed to
pursue nuclear disarmament negotiations in good faith, and has conse-
quently violated its obligations under Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons. It aﬃrms that it made its views
known to the United Kingdom through, among others, its statement at
the Second Conference on the Humanitarian Impact of Nuclear Weapons
held in Nayarit, Mexico, on 13 February 2014. At this conference, it
expressed its belief that States possessing nuclear arsenals are failing to
fulﬁl their legal obligations regarding nuclear disarmament negotiations,
and declared that the “immediate commencement and conclusion of such
negotiations is required by legal obligation of nuclear disarmament rest-
ing upon each and every State under Article VI of the Non-Proliferation
Treaty and customary international law” (Memorial of the Marshall
Islands (MMI), para. 99). The Marshall Islands requests the Court to
order the United Kingdom to take all steps necessary to comply with
those obligations, including through “the pursuit, by initiation, if neces-
sary, of negotiations in good faith aimed at the conclusion of a conven-
tion on nuclear disarmament in all its aspects under strict and eﬀective
international control” (MMI, para. 240).

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863        nuclear arms and disarmament (diss. op. yusuf)

   9. Other distinguishing features relate to the main arguments put for-
ward by the United Kingdom in its preliminary objections to claim the
inexistence of a dispute between the Parties. In the ﬁrst place, the
United Kingdom contended that:
     “on the date of the ﬁling of the Marshall Islands’ Application, there
     was no justiciable dispute between the United Kingdom and Marshall
     Islands in relation to the United Kingdom’s obligations, whether aris-
     ing under the NPT or under customary international law, to pursue
     negotiations in good faith on eﬀective measures of nuclear disarma-
     ment” (Preliminary Objections of the United Kingdom (POUK),
     para. 26).
Secondly, the United Kingdom asserted that “no legal dispute can be said
to exist where the State submitting the dispute has given no notice thereof
to the other State” (POUK, para. 27).
   10. These arguments are clearly distinguishable from those advanced
by India and Pakistan in the two other cases under consideration by the
Court with respect to the Applications by the Marshall Islands. The issues
of fact and law relating to the existence of the dispute are also diﬀerent,
but I will deal with those below in paragraphs 48 to 60. Two elements of
the ﬁrst argument deserve to be highlighted here: the use of the old con-
cept of “justiciable dispute”, and the requirement that the dispute must
have existed on the date of the ﬁling of the Application by the Marshall
Islands. The Judgment addresses the second element, which I will also
deal with in paragraphs 33 to 41 below, but is totally silent on the unusual
use by the United Kingdom of the old and controversial concept of “jus-
ticiable dispute”, which had some currency in international law literature
in the late nineteenth and early twentieth century.

   11. At that time, “non-justiciable” disputes were used to denote either
political disputes, as opposed to legal ones, or disputes generally unsuit-
able for juridical settlement either because adjudication would not pro-
vide a genuine settlement or because the dispute was not about the
interpretation or application of existing international law. The
United Kingdom has not explained, during the proceedings before the
Court, why it had decided to unearth this legal relic for the speciﬁc pur-
poses of this case, but it might be reasonable to assume that this has
much to do with the subject-matter of the Application by the Mar-
shall Islands, namely the obligation contained in the Treaty on the Non-
Proliferation of Nuclear Weapons to pursue negotiations on nuclear
disarmament.
   12. Interestingly, it might be recalled that the Institute of International
Law, at its meeting in Grenoble in 1922, adopted the following resolu-
tion:
    “1. All disputes, whatever their origin and character, are, as a general
          rule, and subject to the following reservations, susceptible to judi-
          cial settlement or arbitral decision.

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864         nuclear arms and disarmament (diss. op. yusuf)

      2. At the same time, when in the opinion of the defendant State, the
         dispute is not susceptible of being settled judicially, the prelimi-
         nary question, whether it is or is not justiciable, is to be submitted
         to the Permanent Court of international Justice, which will decide
         in accordance with its ordinary procedure.”
   13. If it was the intention of the respondent State in this case to signal
to the Court that the dispute submitted to it by the applicant was not
susceptible of being settled judicially, that signal went undetected by the
Court, which has not at all taken up the issue of “non-justiciable” dis-
putes in its analysis of the preliminary objection of the United Kingdom.
It is indeed a pity that the Court missed the opportunity to say something
about the use of this concept in proceedings before it in the twenty-ﬁrst
century. It could have at least referred in this context to its Statute, and
in particular to Article 36, paragraph 2, which contains a list of categories
of legal disputes in respect of which the Court may exercise its jurisdic-
tion.
   14. The other distinctive argument presented by the United Kingdom
on the inexistence of a dispute with the Marshall Islands is the absence of
notice by the latter to the United Kingdom authorities prior to the insti-
tution of judicial proceedings. Such notice is, in the view of the
United Kingdom, a condition of the existence of a legal dispute over
which the Court may exercise its jurisdiction. The Judgment of the Court
correctly notes that “the Court has rejected the view that notice or prior
negotiations are required where it has been seised on the basis of declara-
tions made pursuant to Article 36, paragraph 2, of the Statute, unless one
of those declarations so provides” (Judgment, para. 45).

   With regard to Article 43 of the International Law Commission’s Arti-
cles on the Responsibility of States for Internationally Wrongful Acts
(ARSIWA), the Judgment refers to the commentary on Article 44, para-
graph 1, which speciﬁes that the Articles “are not concerned with ques-
tions 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” (ibid.).
   15. Having rejected the requirement of notice for the existence of a
dispute, the Judgment unfortunately raises “awareness” to a precondition
for the existence of a dispute. This clearly contradicts the jurisprudence of
the Court on the concept of a dispute and the objective determination of
its existence by the Court.

                       III. The Concept of a Dispute
                      and the New “Awareness” Test

  16. The jurisdiction of the Court is to be exercised in contentious cases
only in respect of legal disputes submitted to it by States. This case was

35

865         nuclear arms and disarmament (diss. op. yusuf)

submitted to the Court on the basis of Article 36, paragraph 2, of the
Statute. This provision does not deﬁne what is meant by a “legal dis-
pute”; it therefore falls to the Court not only to deﬁne it, but also to
determine its existence or inexistence in a case such as this one before
proceeding to the merits.

   17. The jurisprudence of the Court is replete with such deﬁnitions. The
ﬁrst one, which is still frequently cited by the Court, was in the Mavrom-
matis Palestine Concessions case, in which the Court stated that: “A dis-
pute is a disagreement on a point of law or fact, a conﬂict of legal views
or of interests between two persons.” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.) It has since
then, however, been further elaborated and enriched by subsequent juris-
prudence.

   18. The Court has clearly established in its jurisprudence that:
“[w]hether there exists an international dispute is a matter for objective
determination” (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
It has also observed, in elaborating further on the deﬁnition given by the
PCIJ in the Mavrommatis case, that:
        “A mere assertion is not suﬃcient to prove the existence of a dispute
      any more than a mere denial of the existence of the dispute proves its
      non-existence. Nor is it adequate to show that the interests of the two
      parties to such a case are in conﬂict. It must be shown that the claim
      of one party is positively opposed by the other.” (South West Africa
      cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
      Objections, Judgment, I.C.J. Reports 1962, p. 328.)

   19. More recently, the Court stated in Georgia v. Russian Federation
that: “The Court’s determination must turn on an examination of the
facts. The matter is one of substance, not of form.” (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).
   20. Notwithstanding this jurisprudence of the Court, it is stated in
paragraph 41 of the Judgment that: “a dispute exists when it is demon-
strated, 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”. The Judgment claims that this requirement is reﬂected “in
previous decisions of the Court in which the existence of a dispute was
under consideration”, and invokes as authority for this statement two
judgments, namely the Judgments on preliminary objections in the cases
of Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia) and the Application of the Inter-

36

866        nuclear arms and disarmament (diss. op. yusuf)

national Convention on the Elimination of All Forms of Racial Discrimina-
tion (Georgia v. Russian Federation) (Judgment, para. 41).

   21. Neither of the two referenced Judgments provides support for a
subjective requirement of “awareness” by the respondent in the determi-
nation of the existence of a dispute. In the Alleged Violations Judgment
on preliminary objections, the Court determined that a dispute existed on
the basis of statements made by the “highest representatives of the Par-
ties” (Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judg-
ment, I.C.J. Reports 2016 (I), pp. 32-33, para. 73). The Court simply
stated as a matter of fact that Colombia was aware that its actions were
positively opposed by Nicaragua. “Awareness” was not identiﬁed as a
criterion for the existence of a dispute, nor was it treated as such by the
Court.
   22. Similarly, in the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Fed-
eration), the Court merely noted that Russia was or was not aware of the
position taken by Georgia in certain documents or statements. It did not
identify “awareness” as a requirement for the existence of a dispute at any
point in the Judgment nor was this implicit in the Court’s reasoning
(Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 117-120,
paras. 106-113).

   23. It is indeed the ﬁrst time that such a subjective element has been
introduced into the assessment by the Court of the existence of a dispute.
As pointed out above, the Court’s jurisprudence has always viewed the
existence of a dispute as an objective matter. The Court has underlined
on many occasions that the determination of the existence of a dispute is
a “matter . . . of substance, not of form” (see, for example, ibid., p. 84,
para. 30). The function of the Court is to determine the existence of a
conﬂict of legal views on the basis of the evidence placed before it and not
to delve into the consciousness, perception and other mental processes of
States (provided they do possess such cerebral qualities) in order to ﬁnd
out about their state of awareness. Moreover, I ﬁnd it contradictory that
the Court should reject notice and notiﬁcation as a condition of the exis-
tence of a dispute, but then raise to a precondition of such existence the
subjective element of awareness. How is such “awareness” to be created if
not through notiﬁcation or some sort of notice?

   24. The introduction of an “awareness” test into the determination of
the existence of a dispute would not only go against the consistent juris-
prudence of the Court; it would also undermine judicial economy and the
sound administration of justice by inviting submissions of second applica-
tions on the same dispute. If a subjective element or a formalistic require-
ment such as “awareness” is to be demanded as a condition for the

37

867        nuclear arms and disarmament (diss. op. yusuf)

existence of a dispute, the applicant State may be able to fulﬁl such a con-
dition at any time by instituting fresh proceedings before the Court. The
respondent State would, of course, be aware of the existence of the dispute
in the context of these new proceedings. It is to avoid exactly this kind of
situation that the Permanent Court of International Justice observed in
the Polish Upper Silesia case that: “the Court cannot allow itself to be
hampered by a mere defect of form, the removal of which depends solely
on the Party concerned” (Jurisdiction, Judgment No. 6, 1925, P.C.I.J.,
Series A, No. 6, p. 14).

  25. More recently, in the Military and Paramilitary Activities in and
against Nicaragua case (Nicaragua v. United States of America), the
Court stated that: “It would make no sense to require Nicaragua now to
institute fresh proceedings based on the Treaty, which it would be fully
entitled to do.” (Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, pp. 428-429, para. 83.)

   26. Thus, in those circumstances where an applicant State may be enti-
tled to bring fresh proceedings to fulﬁl an initially unmet formal condi-
tion, it is not in the interests of the sound administration of justice to
compel it to do so (see, for example, 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, para. 87). The
introduction of a test of “awareness” constitutes an open invitation to the
applicant State to institute such proceedings before the Court, having
made the respondent State aware of its opposing views.

  27. The existence of a dispute has to stand objectively by itself. What
matters is that there is a positive opposition of juridical viewpoints, a
disagreement on a point of law or fact. It is not for both parties to deﬁne
or to circumscribe the dispute before it comes to the Court, except when
drawing up a compromis. In all other instances it is the task of the Court
to do so. Nor is it a legal requirement for the existence of a dispute that
the applicant State provide prior notice or raise awareness of the respon-
dent before coming to the Court.

  28. The positively opposed legal viewpoints may consist of a claim by
one party, which is contested or rejected by the other, or by a course of
conduct of one party which is met by the protest or resistance of another
party (see South West Africa cases (Ethiopia v. South Africa; Liberia v.
South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962; dis-
senting opinion of Judge Morelli, p. 567, para. 2). In the latter case, the
dispute may be considered to be only at an incipient stage until such time
as the State whose conduct is protested is aﬀorded an opportunity either
to reject the protest or to accede to the protesting States’ demands and
consequently change its conduct. The institution of proceedings before

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868         nuclear arms and disarmament (diss. op. yusuf)

the Court may, however, result in the subsequent crystallization of the
nascent dispute if the juridical viewpoints of the parties in relation to the
subject-matter of the dispute continue to be positively opposed (see para-
graphs 39-40 below).

   29. Thus, what matters is the presence of the constitutive elements of a
legal dispute susceptible of adjudication by the Court in the form of two
conﬂicting legal views, or legal positions positively opposed to each other,
which are manifested by the parties with respect to the subject-matter of
the dispute and which may be subsequently deﬁned and argued by the
parties before the Court. It is the function of the Court, as a judicial
organ, to ascertain the existence of such conﬂicting legal views.
   30. Nevertheless, as the Court stated in its Advisory Opinion on the
Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947:

      “where one party to a treaty protests against the behaviour or a deci-
      sion of another party, and claims that such behaviour or decision
      constitutes a breach of the treaty, the mere fact that the party accused
      does not advance any argument to justify its conduct under interna-
      tional law does not prevent the opposing attitudes of the parties from
      giving rise to a dispute concerning the interpretation or application
      of the treaty” (I.C.J. Reports 1988, p. 28, para. 38).

   31. Similarly, the Court held previously that “the existence of a dispute
may be inferred from the failure of a State to respond to a claim in cir-
cumstances 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). Thus, the absence of a reaction
in the face of events, such as a protest or a complaint that call for a reac-
tion, may be considered to give rise to an incipient dispute.

   32. In the present case, it appears from the evidence on the record,
which is examined in paragraphs 48 to 60 below, that there was the start
of a dispute between the Marshall Islands and the United Kingdom
resulting from the alleged course of conduct of the United Kingdom with
respect to the obligation under Article VI of the Non-Proliferation Treaty
to pursue and conclude negotiations on a general treaty on nuclear
disarmament and the Marshall Islands’ protest through statements in
multilateral forums, in particular its statement at the Nayarit con-
ference on 14 February 2014. This is another important feature which
distinguishes this case from the two other cases in Marshall Islands v.
India and Marshall Islands v. Pakistan.

39

869         nuclear arms and disarmament (diss. op. yusuf)

                   IV. The Existence of a Dispute prior
                     to the Filing of an Application

   33. One of the important arguments put forward by the United King-
dom in support of its preliminary objections to jurisdiction and admissi-
bility was that the dispute must have existed on the date of the ﬁling of
the Application by the Marshall Islands. The Court has recently stated in
some of its Judgments that a dispute must “in principle” exist at the time
of the Application (Alleged Violations of Sovereign Rights and Maritime
Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2016 (I), p. 27, para. 52; Questions relat-
ing to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012 (II), p. 442, para. 46; 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). The term “in princi-
ple” clearly indicates that this does not always have to be the case, and
that there are bound to be exceptions.
   34. The use of the term “in principle” also suggests that it is not an
absolute precondition for the Court’s jurisdiction that a full-ﬂedged dis-
pute exist at the date of the application. Such a dispute may be in the
process of taking shape or at an incipient stage at the time the application
is submitted but may clearly manifest itself during the proceedings before
the Court. The Court’s insistence on the use of the term “in principle”
evidences its desire to avoid excessive formalism in the determination of
the existence of a dispute, which is a matter of substance, and not of
form.
   35. This ﬂexible approach regarding the date for the determination of
the existence of a dispute is borne out by the case law of the Court, in
which it has occasionally founded the existence of a dispute on opposing
statements of parties made during written and oral pleadings. For exam-
ple, in the preliminary objections phase of the Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), the Court noted that:
         “While 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.
         In conformity with well-established jurisprudence, the Court
      accordingly notes that there persists
          ‘a situation in which the two sides hold clearly opposite views
          concerning the question of the performance or non-performance
          of certain treaty obligations’ [. . .]

40

870         nuclear arms and disarmament (diss. op. yusuf)

      and that, by reason of the rejection by Yugoslavia of the complaints
      formulated against it by Bosnia and Herzegovina, ‘there is a legal dis-
      pute’ between them.” (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), pp. 614-615, paras. 28-29; emphasis added, citation omitted.)
  36. The Court in the above-mentioned case did not examine any evi-
dence that demonstrated that the parties held positively opposed views
prior to the date of application; it solely relied on the views expressed in
written and oral proceedings before it.

   37. A slightly diﬀerent situation arose in the Aerial Incident at Locker-
bie cases. In those cases, the Court established the existence of several
disputes between the parties. The main dispute concerned the question of
whether the destruction of the plane over Lockerbie was governed by the
Montreal Convention. This dispute was evidenced by the assertion of the
relevance of the Montreal Convention by Libya and the subsequent rejec-
tion of its applicability by the United Kingdom and the United States
prior to the submission of the Application to the Court. More interesting
for our purposes is that the Court determined that more speciﬁc disputes
existed between the parties regarding the interpretation of Articles 7 and
11 of the Montreal Convention, which were evidenced by the parties’
opposing positions advanced in written and oral pleadings (Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Preliminary Objections, Judgment, I.C.J. Reports
1998, paras. 28, 32; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Lib-
yan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judg-
ment, I.C.J. Reports 1998, paras. 29, 33). These disputes, according to the
Court, fell within the compromissory clause of the Montreal Convention
and were therefore subject to the jurisdiction of the Court.
   38. More recently, the Court founded its holding in Certain Property
on the ground that the parties’ expressed positively opposed views in
written and oral proceedings. In the paragraph in which the Court deter-
mined the existence of a dispute, it mentioned only the positions that the
parties adopted in pleadings, concluding that “[t]he Court thus ﬁnds that
in the present proceedings complaints of fact and law formulated by
Liechtenstein against Germany are denied by the latter”, and hence that
a dispute existed (Certain Property (Liechtenstein v. Germany), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2005, p. 19, para. 25). Later in
that paragraph, the Court went on to note that this conclusion was sup-
ported by the positions taken by parties in the course of bilateral negotia-
tions and by letters exchanged by the parties prior to the submission of
the Application.

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871        nuclear arms and disarmament (diss. op. yusuf)

  39. Although these Judgments lend some support to the idea that a
dispute can be evidenced by positions taken by the parties in the course
of proceedings subsequent to the ﬁling of an application, they do not
overturn the basic position taken by the Court in previous cases that a
dispute cannot solely arise from the institution of proceedings before the
Court. There must be, as a minimum, the start or the onset of a dispute
prior to the ﬁling of an application, the continuation or crystallization of
which may become more evident in the course of the proceedings. How-
ever, the seisin of the Court cannot by itself bring into being a dispute
between the parties.

   40. In other words, although the beginning of a dispute must have
existed prior to the ﬁling of the application (Northern Cameroons (Camer-
oon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
1963, separate opinion of Sir Gerald Fitzmaurice, p. 109) the decisive fac-
tor is that the positively opposed viewpoints have continued to be evidenced
by the position of the parties during the post-application period when the
Court takes cognizance of the positions of the parties (see Nuclear Tests
(New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58;
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
pp. 270-271, para. 55)). Thus, there is a continuum between the pre-appli-
cation and post-application state of the dispute in the sense that while it
must have its beginning prior to the application, its persistence must be
conﬁrmed by the Court during the judicial proceedings.
   41. The relevance of this to the present case is that it appears from the
evidence placed before the Court, as discussed in paragraphs 48 to 60
below, that there was an incipient dispute arising from the alleged course
of conduct of the Respondent in relation to the obligation, under Arti-
cle VI of the Non-Proliferation Treaty, to pursue negotiations and con-
clude a general treaty on nuclear disarmament that was met by a protest
of the Applicant prior to the ﬁling of its Application, particularly through
its statement at the Nayarit conference. This nascent opposition of legal
viewpoints in relation to the Non-Proliferation Treaty further manifested
itself during the proceedings as the Parties expressed positively opposed
positions in relation to the interpretation and application of Article VI of
the Non-Proliferation Treaty obligations, and the obligation to pursue
and conclude negotiations on nuclear disarmament.

                V. The Subject-Matter of the Dispute

  42. It is for the Court itself to determine on an objective basis the
subject-matter of the dispute between the parties, that is, to “isolate the
real issue in the case and to identify the object of the claim” (Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29;

42

872         nuclear arms and disarmament (diss. op. yusuf)

Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974,
p. 466, para. 30). However, in doing so, the Court examines the positions
of both parties, while giving particular attention to the manner in which
the subject-matter of the dispute is framed by the applicant State (Fisher-
ies Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
I.C.J. Reports 1998, p. 448, para. 30; see also Territorial and Maritime
Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007 (II), p. 848, para. 38).
   43. In its Written Statement, the Marshall Islands describes the scope
of its dispute with the United Kingdom in the following terms: the obliga-
tion “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” (Written Statement, para. 30).
   44. This framing of the subject-matter of the dispute was further clari-
ﬁed during the oral proceedings when the Co-Agent of the Republic of
the Marshall Islands stated that:
      “[a]t no time during these proceedings or — for that matter — outside
      of these proceedings, has the United Kingdom claimed that it entirely
      honours the obligation which is central to these proceedings. I will
      repeat this in order to clarify to the Respondent what precisely the
      case is about: ‘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.’”
      (CR 2016/5, pp. 15-16, para. 5 (van den Biesen).)

   45. Moreover, the Marshall Islands relies on its statement at the
Nayarit conference, as evidence of the existence of a dispute with the
United Kingdom. In that statement, the Marshall Islands declared that
the immediate commencement and conclusion of negotiations on nuclear
disarmament is “required by legal obligation of nuclear disarmament
resting upon each and every State under Article VI of the Non-Prolifera-
tion Treaty and customary international law”.
   46. Thus, the subject-matter of the dispute in this case may be deﬁned
as whether the alleged opposition of the United Kingdom to various ini-
tiatives for the immediate commencement and conclusion of multilateral
negotiations on nuclear disarmament constitutes a breach of the obliga-
tion to negotiate nuclear disarmament in good faith under Article VI of
the Non-Proliferation Treaty.
   47. This is conﬁrmed by the fact that the main focus of the Marshall
Islands’ written and oral submissions, as well as its statement at the
Nayarit conference on which it relies for the existence of the dispute, is on
the alleged non-compliance of the United Kingdom with its obligation to
pursue in good faith negotiations on nuclear disarmament and bring
them to a conclusion. In this connection, the Marshall Islands refers to
the statements of British oﬃcials and the United Kingdom’s voting record
in the United Nations General Assembly in support of its claim that the

43

873        nuclear arms and disarmament (diss. op. yusuf)

United Kingdom has “opposed the eﬀorts of the great majority of States
to initiate such negotiations” (Application of the Marshall Islands,
para. 104). We will examine those statements and voting record below in
so far as they have been presented as evidence of the existence of a dispute
between the Parties, since the issue of the alleged non-compliance of the
United Kingdom with its Non-Proliferation Treaty obligations belongs to
the merits and cannot be dealt with here.

             VI. The Opposing Viewpoints of the Parties
               on the Interpretation and Application
           of Article VI of the Non-Proliferation Treaty

   48. For the Marshall Islands, the dispute is about the interpretation
and application of Article VI of the Non-Proliferation Treaty, and in
particular the obligation 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. This was expressed prior to the
submission of the Application by the representative of the Marshall
Islands at the Nayarit conference and has been reiterated in these pro-
ceedings. In the words of the Co-Agent of the Marshall Islands, “[s]o far
as the application of Article VI of the Non-Proliferation Treaty is con-
cerned, the Marshall Islands believed that each one of the nuclear-weapon
States, including the United Kingdom, were and, indeed, continued to be
in breach of those obligations” (CR 2016/9, p. 8, para. 2 (van den Bie-
sen)).
   49. To support these allegations, the Marshall Islands refers to the
opposition of the United Kingdom to all the attempts made in the con-
text of resolutions adopted by the United Nations General Assembly to
call for the immediate commencement of negotiations with a view to the
conclusion of a convention on nuclear disarmament, to convene a work-
ing group to prepare the ground for such a convention, or to ensure con-
crete follow-up to the advisory opinion of the Court which underscored
the existence of an obligation to pursue negotiations on nuclear disarma-
ment.
   50. According to the Marshall Islands, this opposition is also evi-
denced by the statements made by the United Kingdom’s representatives
to the United Nations organs following the adoption of resolutions by
such organs, including the United Nations General Assembly, or to inter-
national conferences on nuclear disarmament as well as the statements
made by the United Kingdom’s politicians in parliamentary forums or in
documents published by the United Kingdom’s Government.
   51. With regard to the United Nations resolutions, the Marshall Islands
argues that the United Kingdom has consistently voted against all
United Nations General Assembly resolutions on the follow-up to the
Advisory Opinion of the International Court of Justice of 8 July 1996,

44

874          nuclear arms and disarmament (diss. op. yusuf)

which have been adopted every year since December 1996. These resolu-
tions called for immediate commencement of multilateral negotiations to
fulﬁl the obligations underlined by the Court. The United Kingdom does
not deny this consistent pattern of conduct vis-à-vis the fulﬁlment of the
obligation underlined in the Advisory Opinion and the United Nations
General Assembly’s attempts to implement it, but it claims that various
political and legal factors account for its position on these resolutions (see
response dated 23 March 2016 of the United Kingdom to the questions
by Judge Cançado Trindade, para. 2).

   52. It is true that it is not always easy to infer from votes cast in the
United Nations General Assembly the existence of a dispute on matters
covered by the resolution. However, such votes are not devoid of eviden-
tiary value, particularly where there is a consistent pattern of voting
against a series of resolutions which call for the same type of action, in
this case the immediate commencement of negotiations and conclusion of
a general convention on nuclear disarmament, or where statements of
explanation of vote were made by the party voting against the resolu-
tions.
   53. The Republic of the Marshall Islands provides several examples of
explanation of vote made by the United Kingdom in conjunction with the
casting of a negative vote on resolutions adopted by the United Nations
General Assembly on commencement of immediate negotiations on
nuclear disarmament or the establishment of mechanisms for such nego-
tiations. Some of the statements were made on behalf of the United King-
dom only, while others were made by the United Kingdom jointly with
other nuclear-weapons States (NWS) 1.
   54. Some of these resolutions called for taking forward multilateral
disarmament negotiations for the achievement of a world without nuclear
weapons. The United Kingdom, after voting, for example, against one of
these resolutions, stated in its explanation of vote that “we see little value
in this initiative to take forward multilateral nuclear disarmament nego-
tiations outside of the established fora” 2. Other resolutions called for a
“high-level meeting of the General Assembly on nuclear disarmament”.
Again, the United Kingdom voted against them and stated in explanation
of its negative vote that: “we question the value of holding a high-level
meeting of the General Assembly on nuclear disarmament when there are
already suﬃcient venues for such discussion” 3.

   1 The resolutions cited included resolution 68/32 of 5 December 2013, resolution 68/46

of 5 December 2013, resolution 67/56 of 3 December 2012, and resolution 67/39 of
3 December 2012 (see CR 2016/9, pp. 13-14, para. 11 (van den Biesen)).
   2 See resolution 67/56 and the explanation of vote by the United Kingdom of

6 November 2012 (UN doc. A/C.1/67/PV.21).
   3 See resolution 67/39, and the explanation of vote by the United Kingdom of

7 November 2012 (UN doc. A/C.1/67/PV.22).

45

875         nuclear arms and disarmament (diss. op. yusuf)

   55. The statements on which the Republic of the Marshall Islands
relies as evidence of the United Kingdom’s opposition to the immediate
commencement and conclusion of negotiations on nuclear disarmament
also include statements made in the British House of Lords, or by the
United Kingdom Prime Minister, in which the oﬃcials concerned explain
the objections of their Government to such comprehensive negotiations
and advocate a step-by-step approach to denuclearization.
   56. For example, in a debate in the House of Lords, the Senior Minis-
ter of State for the Foreign and Commonwealth Oﬃce stated on 15 July
2013:
        “The United Kingdom voted against the resolution in the United
      Nations General Assembly First Committee that proposed the Open
      Ended Working Group (OEWG), has not attended past meetings of
      the OEWG, and does not intend to attend coming meetings . . . The
      Government considers that a practical step-by-step approach is
      needed, using existing mechanisms such as the Non Proliferation
      Treaty and the Conference on Disarmament.”

  57. Also, the Republic of the Marshall Islands refers to a statement of
the United Kingdom Prime Minister David Cameron in August 2011, in
which he declared, inter alia, that: “He did not agree that ‘negotiations
now on a nuclear weapons convention should be the immediate means of
getting us to a world free of nuclear weapons’.” However, he acknowl-
edged that such a convention “could ultimately form the legal underpin-
ning for this endpoint”, but the prospects of reaching agreement on a
convention “are remote at the moment” (MMI, para. 89).

  58. The United Kingdom responded to the allegations made by the
Republic of the Marshall Islands by declaring that:
      “the Marshall Islands at no stage, ever, at any time in the past raised
      with the United Kingdom its concerns, or allegations or claims, not-
      withstanding this apparent apprehension of long-term bad faith con-
      duct by the United Kingdom. This goes to the United Kingdom’s
      objection to jurisdiction . . . to the eﬀect that there is no justiciable
      dispute between the Marshall Islands and the United Kingdom.”
      (POUK, para. 20.)
   59. The statement made by the Republic of the Marshall Islands at the
Nayarit conference, as well as its other statements calling on nuclear pow-
ers, including the United Kingdom, to fulﬁl their obligation under Arti-
cle VI of the Non-Proliferation Treaty, may be considered as a protest
meant to contest the attitude of the United Kingdom towards the imme-
diate commencement of negotiations on a comprehensive convention for
the elimination of nuclear weapons. For the Marshall Islands this attitude

46

876       nuclear arms and disarmament (diss. op. yusuf)

is evidenced by the course of conduct of the United Kingdom relating to
the obligation to pursue and conclude such negotiations, evidenced by its
voting record at the United Nations General Assembly, its statements in
explanation of such votes, as well as statements made by United King-
dom leaders in parliamentary or diplomatic forums.

   60. Thus, the Nayarit statement by the Marshall Islands, taken together
with the statements made by the United Kingdom with regard to the calls
by the United Nations General Assembly for the immediate commence-
ment of nuclear disarmament negotiations appear, in my view, to have
given rise to an incipient dispute prior to the submission of the Applica-
tion by the Marshall Islands. The prior existence of the beginning of a
dispute relating to the interpretation and application of Article VI of the
Non-Proliferation Treaty, evidenced by the opposed positions of the Par-
ties on negotiations on nuclear disarmament and their timely conclusion,
distinguishes this case from the two other cases of Marshall Islands v.
India and Marshall Islands v. Pakistan. This nascent dispute has fully
crystallized during the proceedings before the Court where the Parties
continued to manifest positively opposed views on the subject-matter of
the dispute as deﬁned in paragraph 46 above.

                                        (Signed) Abdulqawi A. Yusuf.

47


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE À L’APPLICATION
DE LA CONVENTION POUR LA PRÉVENTION
ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

(CROATIE c. YOUGOSLAVIE)

ORDONNANCE DU 14 SEPTEMBRE 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(CROATIA v. YUGOSLAVIA)

ORDER OF 14 SEPTEMBER 1999
Mode officiel de citation:
Application de la convention pour la prévention et la répression
du crime de génocide { Croatie c. Yougoslavie), ordonnance
du 14 septembre 1999, C.LJ. Recueil 1999, p. 1015

Official citation:
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Croatia v. Yugoslavia), Order of
14 September 1999, LC.J. Reports 1999, p. 1015

N° de vente:
ISSN 0074-4441 Sales number 750
ISBN 92-1-070822-9

14 SEPTEMBRE 1999

ORDONNANCE

APPLICATION DE LA CONVENTION POUR LA PRÉVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE

(CROATIE c. YOUGOSLAVIE)

APPLICATION OF THE CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE

(CROATIA vy. YUGOSLAVIA)

14 SEPTEMBER 1999

ORDER
1015

COUR INTERNATIONALE DE JUSTICE

1999 ANNÉE 1999

14 septembre
Rôle général

n° 118 14 septembre 1999

AFFAIRE RELATIVE À L’APPLICATION
DE LA CONVENTION POUR LA PRÉVENTION
ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

(CROATIE c. YOUGOSLAVIE)

ORDONNANCE

Présents: M. SCHWEBEL, président; M. WEERAMANTRY, vice-président;
MM. ODA, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA, M Hiccins, MM. PARRA-
ARANGUREN, KOOIMANS, REZEK, juges; M. VALENCIA-OSPINA,

greffier.

La Cour internationale de Justice,

Ainsi composée,

Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45 et 48 de son
Règlement,

Vu la requête enregistrée au Greffe de la Cour le 2 juillet 1999, par
laquelle la République de Croatie a introduit une instance contre la
République fédérale de Yougoslavie «pour violation de la convention
pour la prévention et la répression du crime de génocide»;

Considérant que, le 2 juillet 1999, une copie certifiée conforme de la
requête a été transmise à la République fédérale de Yougoslavie;

Considérant que la République de Croatie a désigné comme agent
M. David B. Rivkin, Jr.; et que la République fédérale de Yougoslavie a
désigné comme agent M. Rodoljub Etinski, conseiller juridique principal

4
1016 APPLICATION DE CONVENTION GÉNOCIDE (ORD. 14 IX 99)

au ministère des affaires étrangères de Yougoslavie, et comme coagent
S. Exc. M. Milan Grubié, ambassadeur de Yougoslavie aux Pays-Bas;

Compte tenu de l’accord des Parties, tel qu’exprimé par leurs agents au
cours d’une réunion que le président de la Cour a tenue avec ceux-ci le
13 septembre 1999,

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite:

Pour le mémoire de la République de Croatie, le 14 mars 2000;

Pour le contre-mémoire de la République fédérale de Yougoslavie, le
14 septembre 2000:

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 quatorze septembre mil neuf cent quatre-vingt-dix-
neuf, en trois exemplaires, dont l’un restera déposé aux archives de la
Cour et les autres seront transmis respectivement au Gouvernement de la
République de Croatie et au Gouvernement de la République fédérale de
Yougoslavie.

Le président,
(Signé) Stephen M. SCHWEBEL.

Le greffier,
(Signé) Eduardo VALENCIA-OSPINA.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA vy. UNITED KINGDOM)

ORDER OF 30 JUNE 1999

1999

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ROYAUME-UNI)

ORDONNANCE DU 30 JUIN 1999
Official citation:

Legality of Use of Force {Yugoslavia v. United Kingdom),
Order of 30 June 1999, I. C.J. Reports 1999, p. 1009

Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Royaume-Uni),
ordonnance du 30 juin 1999, C.LJ. Recueil 1999, p. 1009

Sales number
ISSN 0074-4441 N° de vente: 748
ISBN 92-1-070820-2

30 JUNE 1999

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. UNITED KINGDOM)

LICEITE DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. ROYAUME-UNI)

30 JUIN 1999

ORDONNANCE
1009

COUR INTERNATIONALE DE JUSTICE

ANNEE 1999 1999
30 juin
Rôle général
30 juin 1999 n° 113

AFFAIRE RELATIVE À LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ROYAUME-UNI)

ORDONNANCE

Présents: M. WEERAMANTRY, vice-président, faisant fonction de pré-
sident en l'affaire; M. SCHWEBEL, président de la Cour;
MM. ODA, BEDJIAOUI, GUILLAUME, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, M™* HIGGINS,
MM. PARRA-ARANGUREN, KOOLMANS, REZEK, juges; M. KRECA,
juge ad hoc; M. ARNALDEZ, 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 les articles 31, 44, 45, 48, 49 et 79
de son Réglement,

Vu la requête déposée au Greffe de la Cour le 29 avril 1999, par
laquelle la République fédérale de Yougoslavie a introduit une instance
contre le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord «pour
violation de l'obligation de ne pas recourir à l'emploi de la force»,

Vu la demande en indication de mesures conservatoires présentée par
la Yougoslavie le 29 avril 1999 et l'ordonnance rendue par la Cour le
2 juin 1999, aux termes de laquelle elle a rejeté ladite demande et réservé
la suite de la procédure;

Considérant qu’aux fins de se renseigner auprès des Parties sur la suite

4
LICÉITÉ DE L'EMPLOI DE LA FORCE (orb. 30 VI 99) 1010

de la procédure le vice-président de la Cour, faisant fonction de président
en l'affaire, a reçu leurs représentants le 28 juin 1999; considérant qu’au
cours de cette réunion le Royaume-Uni, se référant aux conclusions aux-
quelles la Cour était parvenue dans son ordonnance susmentionnée du
2 juin 1999, a demandé qu'il soit statue séparément, avant toute procé-
dure sur le fond, sur les questions de la compétence de la Cour et de la
recevabilité de la requête en l'espèce; considérant qu’au cours de la même
réunion, la Yougoslavie s’est opposée à cette demande et a indiqué
qu'elle souhaitait pouvoir présenter un mémoire sur le fond, ainsi qu’envi-
sagé dans le Règlement de la Cour, étant entendu que le Royaume-Uni
pourrait soulever des exceptions préliminaires dans le délai fixé pour le
dépôt de son contre-mémoire, conformément au paragraphe | de l’article
79 dudit Règlement; et considérant que le demandeur a évoqué un délai
d'environ six mois aux fins du dépôt de la pièce qu'il souhaitait produire;

Considérant les vues des Parties et les dispositions pertinentes du
Règlement de la Cour,

Fixe comme suit les dates d'expiration des délais pour le dépôt des
pièces de la procédure écrite prescrites par l’article 45 du Règlement:

Pour le mémoire de la République fédérale de Yougoslavie, le 5 janvier
2000;

Pour le contre-mémoire du Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord, le 5 juillet 2000;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le trente juin mil neuf cent quatre-vingt-dix-neuf, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et
les autres seront transmis respectivement au Gouvernement de la Répu-
blique fédérale de Yougoslavie et au Gouvernement du Royaume-Uni
de Grande-Bretagne et d'Irlande du Nord.

Le vice-président,
(Signé) Christopher G. WEERAMANTRY.

Le greffier adjoint,
(Signé) Jean-Jacques ARNALDEZ.