INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

ORDER OF 11 OCTOBER 1991

199]

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE LE QATAR ET BAHREIN

(QATAR c. BAHREIN)

ORDONNANCE DU 11 OCTOBRE 1991
Official citation :

Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, Order of 11 October 1991,
1.C.J. Reports 1991, p. 50

Mode officiel de citation :

Délimitation maritime et questions territoriales
entre le Qatar et Bahreïn, ordonnance du 11 octobre 1991,
C.IJ. Recueil 1991, p. 50

Sales number 599
N° de vente :

11 OCTOBER 1991

ORDER

MARITIME DELIMITATION AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

DÉLIMITATION MARITIME ET QUESTIONS TERRITORIALES
ENTRE LE QATAR ET BAHREIN

(QATAR c. BAHREIN)

11 OCTOBRE 1991

ORDONNANCE
50

COUR INTERNATIONALE DE JUSTICE

ANNEE 1991

11 octobre 1991

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE LE QATAR ET BAHREIN

(QATAR c. BAHREIN)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et les articles 44 et 48 de son Régle-
ment,

Vu la requéte enregistrée au Greffe de la Cour le 8 juillet 1991, par
laquelle l'Etat du Qatar a introduit une instance contre l'Etat de Bahreïn
au sujet de certains différends entre les deux Etats relatifs à la souverai-
neté sur les îles de Hawar, aux droits souverains sur les hauts-fonds de
Dibal et de Qit’at Jaradah et à la délimitation des zones maritimes entre
les deux Etats;

Considérant que, dans cette requéte, le Qatar fonde la compétence de la
Cour sur certains accords que les Parties auraient conclus en décembre
1987 et en décembre 1990, l’objet et la portée de engagement a accepter
cette compétence étant déterminés, d’après le Qatar, par une formule
proposée au Qatar par Bahreïn le 26 octobre 1988 et acceptée par le Qatar
en décembre 1990;

Considérant que, par lettres adressées au Greffier de la Cour le 14 juil-
let 1991 et le 18 août 1991, Bahreïn a contesté le fondement de la compé-
tence invoqué par le Qatar;

Considérant que, au cours d’une réunion que le Président de la Cour a
tenue avec les représentants des Parties le 2 octobre 1991, il a été convenu

4

1991
11 octobre
Role général
n° 87
DÉLIMITATION MARITIME ET QUESTIONS TERRITORIALES (ORD. 11 X 91) 51

qu’il serait statué séparément, avant toute procédure sur le fond, sur les
questions de compétence et de recevabilité en l'espèce; et que les Parties
sont également convenues, au cours de la même réunion, des délais pour
le dépôt des pièces de la procédure sur ces questions;

Considérant qu’il est nécessaire que la Cour soit informée de tous les
moyens de fait et de droit sur lesquels les Parties se fondent à ce sujet;

Compte tenu de l’accord intervenu entre les Parties, consultées en vertu
de l’article 31 du Règlement, au sujet de la procédure,

Décide que les pièces de la procédure écrite porteront d’abord sur la
question de la compétence de la Cour pour connaître du différend et sur
celle de la recevabilité de la requête;

Fixe comme suit la date d’expiration des délais pour le dépôt de ces
pièces:
Pour le mémoire de l'Etat du Qatar, le 10 février 1992;
Pour le contre-mémoire de l’Etat de Bahreïn, le 11 juin 1992; et
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 onze octobre mil neuf cent quatre-vingt-onze, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement du Qatar et au Gouver-
nement de Bahrein.

Le Président,
(Signé) R. Y. JENNINGS.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


22

DECLARATION OF JUDGE TARASSOV

I have voted for the present Order, albeit not without some hesitation.

As it seems to me, the continuation of the construction work on the East
Channel Bridge over the Great Belt even now constitutes a serious threat
to the continued, unimpeded passage of international shipping through
this international strait. The present bridge project has been conceived in
such a way that not only after its final realization, but even during the
construction process, it would impose serious physical limitations upon
the possibilities and scope of navigation for Finland as well as upon the
whole international community and, in particular, the Baltic States.

This is my preoccupation and my concerns are strengthened by the fact
that the East Channel Bridge is only a part of a bigger road and rail com-
munication link over the Great Belt and that, given this situation, the
implementation of other parts of the whole project would inevitably make
it more difficult to correct the present plan of the East Channel Bridge if
the Court were to find in favour of Finland on the merits.

At the same time I fully subscribe to the recognition, reflected in the
present Order of the Court, of the indisputable right of Finland to passage
through the Great Belt and also accept the possibility that the Court may,
if circumstances so require, indicate provisional measures for the protec-
tion of this right and its disputed application to certain drill ships and oil
rigs.

I see the main significance of the present Order in the Court’s resolute
intention to prevent a situation from arising in which, pendente lite, both
the Parties to the case, the Court itself, and also all States interested in free
and unimpeded maritime navigation through the Great Belt (which by vir-
tue of conventional and customary international law, has the status of an
international strait), might be confronted with a fait accompli, which could
be brought about in the event of an accelerated continuation by Denmark
of its present construction plans for the bridge, without any modification.
That intention of the Court, as I understand it, is expressed very distinctly
in the following provisions of the present Order:

(1) The Court has established in paragraph 24 of the Order that, as
stated by Denmark, the planned schedule for the construction of the East
Channel Bridge is such that “no physical hindrance for the passage
through the Great Belt will occur before the end of 1994”, which means
that the status quo of passage through the Great Belt will not be changed
prior to the decision of the Court on the merits of the case.

(2) In paragraph 26 of the Order the Court has recognized that:

14
23 PASSAGE THROUGH THE GREAT BELT (DECL. TARASSOV)

“if construction works on the East Channel Bridge which would
obstruct the right of passage claimed were expected to be carried out
prior to the decision of the Court on the merits in the present pro-
ceedings, this might justify the indication of provisional measures”.

In this provision of the present Order I see not only a possibility that
Finland may, in accordance with Article 75, paragraph 3, of the Rules of
Court, renew its request for provisional measures “based on new facts”,
but also some indication that the Court, in accordance with Article 75,
paragraph 1, may examine proprio motu whether the further construction
of the bridge based on the plans in their present form will require special
measures of protection of the disputed rights of Finland.

(3) While, in paragraphs 33 and 34 of the Order, the Court cautions
both Parties equally about the need to take into consideration, in any fur-
ther actions related to the present dispute, the final judgment of the Court
(whatever it may be), paragraphs 31 and 32 of the Order emphasize very
strongly that no action should be taken pendente lite to change the status
quo in respect of passage through the Great Belt.

If it were to be established that the construction works involve an
infringement of the legal right, the Court does not exclude the possibility
of a judicial finding that such works “must not be continued” or even
“must be modified or dismantled”.

(4) The last factor aimed at securing the respective rights of the Parties
until the decision on the merits is the intention of the Court reflected in
paragraph 36 of the Order to ensure, with the co-operation of the Parties,
that that decision be reached with all possible expedition.

All these provisions of the Order permitted me, together with all the
other Judges, to arrive at the final conclusion that, at present, the circum-
stances are not such as to require from the Court the immediate indication
of special provisional measures.

I have also had some difficulties with those provisions of the Order
which deal with the possiblity of negotiations between the Parties, pend-
ing a decision of the Court on the merits. It seems to me that the position of
the Court relating to such negotiations, which in the wording of the Order
are “welcomed”, might, in accordance with the previous practice of the
Permanent Court of International Justice and also with its own practice,
be more straightforward and somewhat stronger. The Court could pro-
mote the positive outcome of negotiations if it were to indicate that the aim
of such negotiations is to search for the best technical possibilities which
may fully guarantee that

“the erection of the bridge section crossing the Eastern Channel will,
in conformity with international law, allow for the maintenance of
free passage for international shipping between the Kattegat and the
Baltic Sea as in the past” (Danish Circular Note of 30 June 1987, re-
produced as Annex 2 to the Application by Finland and in Written

15
24 PASSAGE THROUGH THE GREAT BELT (DECL. TARASSOV)

Observations of Denmark on the Finnish request for provisional
measures, Annex 8).

I am sure that it was in the power of the Court — albeit not as a special
provisional measure — to recommend that the Parties, given the signifi-
cance of the Great Belt for international shipping, should invite for such
negotiations the experts of third countries, especially of those countries
interested in free passage through this international strait, or should con-
duct such negotiations under the aegis of the International Maritime
Organization.

(Signed) Nikolai K. TARASSOv.

16


684

DÉCLARATION DE M. VERHOEVEN

C’est à la lumière des objectifs auxquels répond l'institution des de-
mandes reconventionnelles qu'il convient, me semble-t-il, d'apprécier le
lien de connexité que celles-ci doivent présenter avec la demande princi-
pale pour être recevables. Ces objectifs ne sont pas toujours parfai-
tement clairs. Si l’on en juge par référence aux pratiques nationales, une
double considération paraît déterminante: permettre au juge d’avoir
du litige dont il est saisi une connaissance plus complète et plus exacte,
d’une part, prévenir le risque de décisions difficilement compatibles,
voire franchement contradictoires, d'autre part. C’est a ces conditions
seulement que la demande reconventionnelle permet de faire utilement
l'économie d'un procès supplémentaire.

L’explication est raisonnable. Doit-elle être différente lorsque sont en
cause des juridictions internationales? Je n’en vois pas la raison. S'il en va
bien ainsi, c'est à la lumière des objectifs précités qu'il y a dès lors lieu de
comprendre les critères de connexité qui ont été à ce jour mis en avant
par la Cour pour déclarer recevables des demandes reconventionnelles
(faits de même nature, même ensemble factuel complexe, mêmes buts
juridiques). Il me paraîtrait toutefois erroné de les appliquer d’une manière
purement «mécanique», en perdant de vue les raisons qui expliquent fon-
damentalement que le juge se saisisse de la demande du défendeur sans le
contraindre à une nouvelle instance. Une application trop rigide risque-
rait en effet de réduire d’une manière excessive les demandes qui puissent
effectivement être introduites reconventionnellement; elle pourrait aussi
méconnaitre l'autonomie respective de la demande principale et de la
demande reconventionnelle, soulignée par la Cour, qui implique néces-
sairement qu'elles puissent ne pas avoir ni un objet ni un même fonde-
ment; il ne peut être exclu enfin que d’autres critères soient jugés perti-
nents, dans d’autres circonstances, pour décider de la recevabilité d'une
demande reconventionnelle. L'important est toujours que la Cour soit en
mesure de «mieux» juger et que la crédibilité de la chose jugée soit pré-
servée des risques que lui feraient courir des prononcés incompatibles.

Cela dit, il est propre au juge international de ne disposer à ce jour que
d’une juridiction purement volontaire. Celle-ci n'existe que parce que et
dans la mesure où les parties l’ont voulue. Il est dès lors possible que le
juge ne puisse plus, faute d’un accord, connaître demain de la demande
qui lui est aujourd'hui présentée reconventionnellement. Faut-il en
déduire que la Cour devrait faire preuve d'un «libéralisme» particulier
lorsqu'elle statue sur la recevabilité d’une demande reconventionnelle, et
en particulier sur l'exigence de connexité à laquelle celle-ci est subordon-
née? J'en doute fort. Il est vrai que le règlement pacifique des différends

28
685 ACTIVITÉS ARMÉES (DÉCL. VERHOEVEN)

pourrait s’en trouver renforcé. Le risque est toutefois que cela incite les
Etats à se détourner d’un juge qui lui réserve trop de «surprises» plutôt
qu'à s’y soumettre. En outre, la logique interne d’un système de juridic-
tion volontaire commande sans doute, toute politique juridictionnelle
mise à part, une rigueur particulière dans l'appréciation du lien que, sous
peine d’irrecevabilité, la demande reconventionnelle doit présenter avec
la demande principale.

C’est parce que l’attaque contre la mission diplomatique de POuganda
à Kinshasa, dont fait état le défendeur, ne me paraît pas de nature à éclai-
rer utilement la Cour sur l’agression armée et sur l’occupation illégale
d'une partie de son territoire dont se prétend victime la République
démocratique du Congo, qui sont au cœur de la demande principale, que
jai voté contre la recevabilité de la deuxième demande reconventionnelle
du défendeur. Compte tenu des observations qui précèdent, il me semble
que la seule circonstance que cette attaque s’inscrive dans une histoire
conflictuelle dont les facettes sont multiples ne suffit pas à justifier que le
défendeur soit autorisé à en saisir reconventionnellement la Cour.

{ Signé) Joe VERHOEVEN.

29


                                                    6 MAI 2022

                                                  ORDONNANCE

DÉLIMITATION TERRESTRE ET MARITIME ET SOUVERAINETÉ SUR DES ÎLES

                  (GABON/GUINÉE ÉQUATORIALE)

                          ___________

 LAND AND MARITIME DELIMITATION AND SOVEREIGNTY OVER ISLANDS

                  (GABON/EQUATORIAL GUINEA)

                                                    6 MAY 2022

                                                     ORDER

                           INTERNATIONAL COURT OF JUSTICE

                                            YEAR 2022
                                                                                2022
                                                                                6 May
                                                                                General List
                                                                                No. 179
                                            6 May 2022

    LAND AND MARITIME DELIMITATION AND SOVEREIGNTY OVER ISLANDS

                              (GABON/EQUATORIAL GUINEA)

                                              ORDER

      The President of the International Court of Justice,

       Having regard to Article 48 of the Statute of the Court and to Articles 44 and 46, paragraph 1,
of the Rules of Court,

      Having regard to the “Special Agreement between the Gabonese Republic and the Republic
of Equatorial Guinea” concluded on 15 November 2016 (hereinafter the “Special Agreement”),

       Having regard to the Order dated 7 April 2021, whereby the Court, referring to the provisions
of Article 3, paragraph 1, subparagraphs (a) and (b), of that Special Agreement, and taking account
of the agreement of the Parties concerning the number and order of the pleadings, fixed 5 October
2021 and 5 May 2022 as the respective time-limits for the filing of the initial pleadings in the case,
namely a Memorial of the Republic of Equatorial Guinea and a Counter-Memorial of the Gabonese
Republic;

      Whereas the Memorial and the Counter-Memorial were filed within the time-limits thus fixed;

      Whereas, under Article 3, paragraph 1, subparagraphs (c) and (d) of the Special Agreement,
the Parties agreed as follows:

                                                 -2-

     “(c) The Party that filed the first pleading will file the third pleading no later than five
          months after receiving from the Registrar a certified copy of the second pleading.

      (d) The Party that filed the second pleading will file the fourth pleading no later than
          five months after receiving from the Registrar a certified copy of the third pleading”;

      Whereas in the present case there is no reason to decide otherwise,

      Fixes the following time-limits for the filing of the subsequent pleadings in the case:

      5 October 2022 for the Reply of the Republic of Equatorial Guinea;

      6 March 2023 for the Rejoinder of the Gabonese Republic; 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 sixth day of May, two thousand and twenty-two, in three copies, one of which will
be placed in the archives of the Court and the others transmitted to the Government of the Gabonese
Republic and the Government of the Republic of Equatorial Guinea.

                                                         (Signed)    Joan E. DONOGHUE,
                                                                          President.

                                                         (Signed)     Philippe GAUTIER,
                                                                           Registrar.

                                            ___________


41

1929.
Le 20 août.
Dossier E.b. XX.

Annexe 3 à l’Arrë n° 16.

ORDONNANCE
RENDUE A LA DATE DU 20 AOÛT 1920.

Présents :

MM. ANZILOTTI, Président,
HUBER, Vice-Président,
LODER, |
NYHOLM,

DE BUSTAMANTE,
ALTAMIRA, Juges,
ODA,

PESSGA,

HUuGHEs,

NEGULESCO,
WANG,

Comte ROSTWOROWSKI, Juge ad hoc.

Juges suppléants,

AFFAIRE RELATIVE A LA COMPETENCE
DE LA COMMISSION INTERNATIONALE DE L’ODER

La Cour,

composée ainsi qu’il est dit ci-dessus,
aprés délibéré en Chambre du Conseil,

Vu Varticle 48 du Statut,
Vu le Contre-Mémoire déposé au nom des six Gouvernements;

Vu le Mémoire et le Contre-Mémoire déposés au nom du
Gouvernement polonais ;

Vu Vordonnance (preuves) rendue par la Cour en date du
15 août 1929 ; .

Oui les représentants des six Gouvernements et de la
Pologne en leurs observations et conclusions ;

Considérant que, dans leur Contre-Mémoire, les six Gouver-
nements demandent à la Cour de décider que les passages
42 ODER. — ORDONNANCE DU 20 AOÛT 1929

du Mémoire polonais contenant des références aux travaux
préparatoires du Traité de Versailles et des citations de ces
travaux doivent étre négligés; que, dans leurs observations
orales, ils ont demandé à la Cour de décider qu’il n’y a pas
lieu de tenir compte (to pay no attention) desdits passages,
ainsi que de certains passages du Contre-Mémoire polonais ;

Considérant que, dans ses observations et conclusions orales,
l’agent du Gouvernement polonais a déclaré qu’il « s’incline »
devant le désir des six Gouvernements à cet effet qu’état ne
soit pas fait des passages dont il s'agit, et qu'il « n’insiste
pas » pour utiliser lesdits passages dans sa défense, en ajou-
tant, toutefois, que « le Gouvernement polonais se réserve »
« de faire usage dans les débats au fond de références ou
mentions » desdits travaux préparatoires « qui ont déjà été
rendus publics » ;

Considérant que trois des Parties en cause en la présente
affaire n’ont point participé aux travaux de la Conférence qui
a préparé le Traité de Versailles; que, dès lors, le compte
rendu de ces travaux ne peut servir à déterminer, à leur
égard, la portée du Traité; que cette considération s'applique
avec une force égale aux passages antérieurement publiés de ce
compte rendu et aux passages qui ont été reproduits pour la
première fois dans les pièces écrites afférentes à la présente
affaire ; . .

Considérant que, dans une affaire déterminée, il ne saurait
être tenu compte d'éléments de preuve qui ne sont pas
admissibles au regard de certaines des Parties en cause;

Considérant qu’en l'espèce les seuls travaux préparatoires
dont il s’agit sont les travaux de la Commission des Ports, des
Voies d’eau et des Voies ferrées de la Conférence de la Paix ;

Ecarte des débats en la présente affaire les passages qui ont
pu étre cités dans les piéces de la procédure écrite des procés-
verbaux de la Commission des Ports, Voies d’eau et Voies fer-
rées de la Conférence qui a élaboré le Traité de Versailles.

Fait en anglais et en français, le texte anglais faisant foi,
au Palais de la Paix, à La Haye, le vingt août mil neuf cent
vingt-neuf, en huit exemplaires, dont l'un restera déposé
aux archives de la Cour et dont les autres seront transmis
43 ODER. — ORDONNANCE DU 20 AOÛT 1929

aux agents des Gouvernements d’Allemagne, de Danemark, de
la France, de Sa Majesté britannique en Grande-Bretagne, de
Suède et de Tchécoslovaquie, ainsi qu’à l’agent du Gouverne-

ment de Pologne.

.Le Président de la Cour:
(Signé) D. ANZILOTTI.

Le Greffier de la Cour:
(Signé) À. HammarskJOLp.


136

SEPARATE OPINION BY M. DE VISSCHER.
[Tvanslation. |

Although concurring in the operative part of the judgment,
I regret I am unable to accept some of its grounds, particu-
larly in regard to two questions which are of considerable
importance whether from a general point of view or from the
point of view of the present case.

1.—The first point with which I disagree concerns the rela-
tions between the two diplomatic instruments upon which the
Parties have relied. The judgment regards the Belgo-Bulgarian
declarations accepting the Court’s compulsory jurisdiction and
the Treaty of June 23rd, 1931, as two separate and independent
sources of jurisdiction. In my opinion they are two co-ordin-
ated instruments; their respective provisions settle different
questions ; they are on that account fully consistent one with
the other and should be applied not as alternatives, but concur-
rently.

Although, like the judgment and in conformity with the
views of both Parties, I admit that the declarations accepting
the compulsory jurisdiction of the Court remained in force
during the current period of the 1931 Treaty, I do so because
I believe that, when they signed that Treaty, the two States
did not intend to establish a new source of jurisdiction. Bound
in their mutual relations, as from March roth, 1926, by an
obligation to accept the Court’s jurisdiction—an obligation
with a longer term of application than that of the Treaty—
why should they have suspended it for the pre-arranged term
of five years assigned to the application of the Treaty and
have substituted during that period a new source of jurisdic-
tion for the pre-existing source, reverting by law to the latter
on the expiry of the Treaty? The argument based upon the
Treaty’s later date would be decisive in favour of the creation
of a new source of jurisdiction only if it were clearly proved
that the subject-matter of the undertaking resulting from its
Article 4 was really wider in scope than that of the undertaking
arising out of the declarations accepting the compulsory juris-
diction of the Court. But, although it is true that Article 4—
like the corresponding clause in the General Act of Geneva
(Art. 17), which it reproduces—substituted for the definition of
justiciable disputes contained in Article 36 of the Court’s
Statute the definition of those given in the arbitration conven-
tions annexed to the Locarno Agreements (Oct. 16th, 1925), it
cannot be said with certainty that the latter definition is

76

A./B. 77 (ELECTRICITY COMPANY).—OP. DE VISSCHER 137

really any wider than that contained in the above-mentioned
Article of the Statute. The definition in Article 36 is drafted
in terms of objective law; that of the Locarno arbitration
conventions in terms of subjective law. That difference does
not allow us to assume any appreciable extension to the field
of justiciable disputes. As for the clause in paragraph 2 of
Article 4 (Art. 17 of the General Act, second sentence): “It
is understood that the disputes referred to above include in
particular those mentioned in Article 36 of the Statute of the
Permanent Court of International Justice’, the work prepar-
atory to the General Act makes it clear that this clause was
only included in the Act because the Locarno definition had
been thought by some to be in fact more restrictive in certain
respects than the definition in the Court’s Statute.

The two other provisions of the 1931 Treaty upon which the
Bulgarian Government bases its objection: Article 1, which
prescribes diplomatic negotiations, and Article 3 concerning
previous exhaustion of internal remedies, are in my opinion
of quite another character. They do not strictly concern the
jurisdiction of the Court. These provisions appear in Chapter 1
of the Treaty, entitled: ‘‘Pacific Settlement in general”. They
lay down two conditions which the Treaty regards as prelimin-
ary to any international procedure falling within the methods
in question, namely, conciliation, arbitration and judicial settle-
ment. The reference is no longer to the Court’s jurisdiction,
but to conditions upon which the Parties have agreed to allow
recourse to that jurisdiction to depend.

The two conditions are applicable to the Belgian Govern-
ment’s Application ; but, since the general spirit of the Treaty
of June 23rd, 1931, is obviously in favour of extending methods
of peaceful settlement in general, it is impossible to imagine
that, when the contracting Parties embodied in treaty form
the rules upon which these conditions were to rest, they intended
to make them more binding in their effects than they are under
ordinary international law. This remark applies especially to
the local redress rule, which is formulated in Article 3 of the
Treaty in the same terms as in Article 31 of the General Act
of Geneva. The preparatory work of the Ninth Assembly (1928)
of the League of Nations shows that the authors of the General
Act intended, in this matter as in others, merely to unify the
terms of the many previous arbitration conventions, which
themselves had only given expression to a rule long sanctioned
by international usage. This rule is in fact inscribed in Article 3
of the Treaty of June 23rd, 1931, in terms almost identical
with those of Article 3 of the Treaty of arbitration and conci-
liation between Germany and Switzerland, dated December 3rd,
1921, the prototype of these conventions.

77
A./B. 77 (ELECTRICITY COMPANY).—OP. DE VISSCHER 138

Finally, the conclusion to be drawn from a study of the
various agreements mentioned above is that, in accordance,
moreover, with the views of its most authoritative comment-
ators, the General Act, in those of its provisions which apply to
judicial settlement and which are reproduced in the 1931 Treaty,
made little change in the system established by Article 36 of
the Statute of the Court.

Understood in this sense, the combined application of the
declarations accepting the Court’s compulsory jurisdiction and
of the 1931 Treaty cannot involve any contradiction, the juris-
diction of the Court continuing to be based upon the declar-
ations, and the two conditions governing admissibility contained
in Articles 1 and 3 of the Treaty being therein fixed in accord-
dance with ordinary international law.

2.—The judgment appears to me to have interpreted Article 3
of the 1931 Treaty relating to the need of exhausting local
remedies with a strictness which seems to be in keeping neither
with ordinary international law, of which in my view this Article
is the mere expression, nor with the general spirit of the Treaty.
My observations shall be brief.

It is admitted that the rule requiring previous exhaustion
of internal remedies shall be applied, not automatically, but
having regard to the circumstances of the case and, more par-
ticularly, to any limitations which those circumstances may
impose upon the effective nature of the remedy. The very text
of the judgment delivered on March 16th, 1038, by the
Bulgarian Court of Cassation shows that, in. the view of that
supreme tribunal, a number of apparently substantial griev-
ances of the Belgian Company constituted grievances of fact
which lay outside the Court’s jurisdiction. In those circum-
stances it could only record the sovereign character in regard
to them of the judgment given by the Sofia Court of Appeal.

A second circumstance is the attitude of the Bulgarian
authorities immediately following the birth of the dispute. In
his letter of August 3rd, 1937, to the Belgian Minister in Sofia,
the Bulgarian Prime Minister and Minister for Foreign Affairs
and Public Worship declared that “the matters in dispute
between the Municipality of Sofia and the Belgian Electricity
Company .... fall within the exclusive jurisdiction of the Bul-
garian courts, which have already given their decision upon
them”. In the same letter the Bulgarian Government justified
its decision to denounce the Treaty of June 23rd, 1931, on the
ground that the Belgian Government intended to submit to
the Permanent Court of International Justice “a dispute which
falls within the competence of the Bulgarian courts”.

78
A./B. 77 (ELECTRICITY COMPANY).—OP. DE VISSCHER 139

Finally, it is established that the Belgian Company, being
bound to exhaust the local remedies, did all that lay in its
power to this end by having recourse, on June 23rd, 1937, to
the exceptional means of an. appeal to the Court of Cassation,
and it is further agreed that the filing of the Belgian Applica-
. tion on January 26th, 1038, was determined by the imminent
expiry of the Treaty which had been denounced by the
Bulgarian Government and the benefit of which the Belgian
Government was attempting to preserve. In these circum-
stances, was it necessary, on the basis of the Treaty, to declare
the Belgian Government’s Application irregular, because it
preceded the judgment of the Bulgarian Court of Cassation ?
In my opinion, the circumstances briefly outlined above and
the general spirit of the Treaty justified a less formal attitude
towards a procedure whose only fault lay in its having been
precipitated by the denunciation of the Treaty, while that
denunciation, taking effect on February 4th following, deprived
the Belgian Government, in advance, of the benefit of the
appeal lodged by its national with the Court of Cassation and
which alone, according to the argument of the Court’s judg-
ment, could lead to the “decision with final effect” required
by Article 3 of the Treaty of June 23rd, 1931.

(Signed) DE VISSCHER.

79


1039

            SEPARATE OPINION OF JUDGE SEBUTINDE

   Object and purpose of the United Nations Charter — Maintenance of
international peace and security — Role of the Court in the peaceful settlement of
disputes — The Court’s compulsory jurisdiction derives from the optional clause
declarations pursuant to Article 36, paragraph 2, of the Court’s Statute and not
from the existence of a dispute — The existence of a dispute is merely the
precondition for the exercise of that jurisdiction — Article 38 of the Statute of the
Court — The objective determination of the existence of a dispute is the prerogative
of the Court and is a matter of substance, not of form or procedure — Conduct of
the Parties is relevant evidence — The new legal prerequisite of “awareness by the
Respondent that its views were positively opposed” is formalistic and alien to the
Court’s jurisprudence.

                                 Introduction

   1. I have voted against the operative paragraph of the Judgment
because I am unable to agree with the decision of the Court upholding the
ﬁrst preliminary objection of the United Kingdom, as well as the underly-
ing reasoning. In my view, the majority of the Court has unjustiﬁably
departed from the ﬂexible and discretionary approach that it has consis-
tently hitherto adopted in determining the existence of a dispute, choos-
ing instead, to introduce a new rigorous and formalistic test of “awareness”
that raises the evidentiary threshold and that is bound to present the
Court with diﬃculties in future. Furthermore, given the importance of the
subject-matter of this case not only to the Parties involved but to the
international community as a whole, I ﬁnd it regrettable that the Court
has opted to adopt an inﬂexible approach that has resulted in summarily
disposing of this case at this early stage. I explain my views in more detail
in this separate opinion.

                    Responsibility for the Maintenance
                   of International Peace and Security

  2. If there is one lesson that the international community learnt from
the human catastrophes that were the First and Second World Wars, it
was the need for a concerted, global eﬀort
      “[t]o save succeeding generations from the scourge of war, which
      twice in our lifetime has brought untold sorrow to mankind, and to
      reaﬃrm faith in fundamental human rights, in the dignity and worth

210

1040       nuclear arms and disarmament (sep. op. sebutinde)

      of the human person, in the equal rights of men and women and of
      nations large and small, and to establish conditions under which jus-
      tice and respect for the obligations arising from treaties and other
      sources of international law can be maintained . . .” 1.

 3. It is also important to recollect the purpose for which the
United Nations was created, namely,
      “to maintain international peace and security, and to that end: to take
      eﬀective collective measures for the prevention and removal of threats
      to peace, and for the suppression of acts of aggression or other
      breaches of the peace, and to bring about by peaceful means, and in
      conformity with the principles of justice and international law, adjust-
      ment or settlement of international disputes or situations which might
      lead to a breach of the peace” 2.
Under the Charter, although the primary responsibility for the mainte-
nance of international peace and security lies with the Security Council 3,
and to a lesser extent, the General Assembly 4, the International Court of
Justice, as the principal judicial organ of the United Nations 5 does con-
tribute to the maintenance of international peace and security through its
judicial settlement of such inter-State disputes as are referred to it for
adjudication 6 and through the exercise of its advisory role in accordance
with the Charter and the Statute of the Court 7. Today there is no greater
threat to international peace and security, or indeed to humanity, than
the threat or prospect of a nuclear war.

                    The NPT and Nuclear Disarmament

  4. It may also be useful to brieﬂy recall the historical background to
the present case. The Treaty on the Non-Proliferation of Nuclear Weap-
ons (NPT) which entered into force in 1970 8 and whose objectives are, to
prevent the spread of nuclear weapons and weapons technology; to pro-
mote co-operation in the peaceful use of nuclear energy and to further the
goal of achieving nuclear disarmament, currently has 191 States parties

   1 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,

Preamble (hereinafter the “UN Charter”).
   2 UN Charter, Art. 1.
   3 Ibid., Art. 24 (1).
   4 Ibid., Art. 11.
   5 Ibid., Art. 92.
   6 United Nations, Statute of the International Court of Justice, 18 April 1946 (herein-

after the “Statute”), Art. 38.
   7 UN Charter, Art. 96 and Statute, Arts. 65-68.
   8 Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 161, opened for

signature at London, Moscow and Washington on 1 July 1968 and entered into force
5 March 1970.

211

1041       nuclear arms and disarmament (sep. op. sebutinde)

including the Marshall Islands 9 and the United Kingdom 10. However,
contrary to the NPT objectives, State practice demonstrates that for the
past nearly 70 years, some States have continued to manufacture, acquire,
upgrade, test and/or deploy nuclear weapons and that a threat of possible
use is inherent in such deployment. Furthermore, State practice demon-
strates that far from proscribing the threat or use of nuclear weapons in
all circumstances, the international community has, by treaty and through
the United Nations Security Council, recognized in eﬀect that in certain
circumstances the use or threat of use of nuclear weapons may even be
justiﬁed.

   5. In December 1994 the United Nations General Assembly sought an
advisory opinion from the Court regarding the legality of the threat or
use of nuclear weapons 11. The question posed by the General Assembly
was quite simply “Is the threat or use of nuclear weapons in any circum-
stance permitted under international law?” In response, the Court consid-
ered that it was being asked “to determine the legality or illegality of the
threat or use of nuclear weapons” 12. After taking into account the body
of international law (including Article 2, paragraph 4, and Article 51 of
the United Nations Charter) as well as the views of a vast number of
States that ﬁled their written submissions before the Court, the Court
opined that:
— there is no speciﬁc authorization of the threat or use of nuclear weap-
    ons in either customary or conventional international law 13;

— there is no comprehensive and universal prohibition of the threat or
  use of nuclear weapons as such, in either customary or conventional
  international law 14;
— a threat or use of nuclear weapons that was contrary to Article 2,
  paragraph 4, or that failed to meet all the requirements of Article 51
  of the United Nations Charter; or that is incompatible with the prin-

    9 The Republic of the Marshall Islands (RMI) acceded to the NPT on 30 January 1995.

See United Nations Oﬃce of Disarmament Aﬀairs, Marshall Islands: Accession to Treaty
on the Non-Proliferation of Nuclear Weapons, available at: http://disarmament.un.org/
treaties/a/npt/marshallislands/acc/washington.
    10 The United Kingdom signed the NPT on 1 July 1968 in London, Moscow and

Washington and it ratiﬁed it on 27 November 1968 in London and Washington and on
29 November 1968 in Moscow. See United Nations Oﬃce of Disarmament Aﬀairs, United
Kingdom of Great Britain and Northern Ireland: Ratiﬁcation of the NPT, available
at: http://disarmament.un.org/treaties/a/npt/unitedkingdomofgreatbritainandnorthernire
nland/rat/london.
    11 UN General Assembly resolution A/RES/49/75 K, 15 December 1994, Request for

an advisory opinion from the International Court of Justice on the legality of the threat or
use of nuclear weapons.
    12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports

1996 (I), p. 238, para. 20.
    13 Ibid., p. 266, para. 105 (2) A.
    14 Ibid., para. 105 (2) B.

212

1042        nuclear arms and disarmament (sep. op. sebutinde)

      ciples and rules of international humanitarian law applicable in armed
      conﬂict or that is incompatible with treaties speciﬁcally dealing with
      nuclear weapons, is illegal 15.
  6. However, the Court did make one exception to its ﬁndings (albeit in
an evenly divided manner 16) when it opined that:

        “in view of the current state of international law, and of the elements
        of fact at its disposal, the Court cannot conclude deﬁnitively whether
        the threat or use of nuclear weapons would be lawful or unlawful in
        an extreme circumstance of self-defence, in which the very survival of
        a State would be at stake” 17.
   7. Finally, although this does not appear to have been in direct answer
to the question posed by the General Assembly, the Court went an extra
mile in what, in my view, is the real contribution of the Court to world
peace and security as far as the question of nuclear weapons is concerned.
It stated in paragraphs 98 to 100 of the Advisory Opinion, as follows:

           “Given the eminently diﬃcult issues that arise in applying the law
        on the use of force and above all the law applicable in armed conﬂict
        to nuclear weapons, the Court considers that it now needs to exam-
        ine one further aspect of the question before it, seen in a broader
        context.
           In the long run, international law, and with it the stability of the
        international order which it is intended to govern, are bound to suﬀer
        from the continuing diﬀerence of views with regard to the legal status
        of weapons as deadly as nuclear weapons. It is consequently impor-
        tant to put an end to this state of aﬀairs: the long-promised complete
        nuclear disarmament appears to be the most appropriate means of
        achieving that result.
           In these circumstances, the Court appreciates the full importance of
        the recognition by Article VI of the Treaty on the Non-Proliferation of
        Nuclear Weapons of an obligation to negotiate in good faith a nuclear
        disarmament . . . 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.
           This twofold obligation to pursue and to conclude negotiations
        formally concerns the 182 States parties to the [NPT], or, in other
        words, the vast majority of the international community . . . Indeed

   15 Op. cit. supra note 12, p. 266, para. 105 (2) C and D.
   16 By seven to seven votes with the President having to use his casting vote.
   17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports

1996 (I), p. 266, para. 105 (2) E.

213

1043        nuclear arms and disarmament (sep. op. sebutinde)

        any realistic search for general and complete disarmament, especially
        nuclear disarmament, necessitates the co-operation of all States.”
        (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
        I.C.J. Reports 1996 (I), pp. 263-264, paras. 98-100.)
   8. The Court then unanimously opined in the operative clause that,
“There exists an obligation to pursue in good faith and to bring to a con-
clusion negotiations leading to nuclear disarmament in all its aspects
under strict and eﬀective international control.” 18 The Advisory Opinion
of the Court, although not legally binding, was well received by the vast
majority of NPT States parties, although it was less welcome by those
nuclear-weapon States that were of the view that the Court had
over-stepped its judicial function by rendering this opinion. In Decem-
ber 1996, the General Assembly passed a resolution endorsing the conclu-
sion of the Court relating to the existence of “an obligation to pursue in
good faith and to bring to a conclusion, negotiations leading to disarma-
ment in all its aspects under strict and eﬀective international control” and
calling upon all States to immediately commence multilateral negotia-
tions leading to a nuclear weapons convention prohibiting “the develop-
ment, production, testing, deployment, stockpiling, threat or use of
nuclear weapons” and providing for their elimination 19.

   9. Regrettably, since the adoption of the Court’s Advisory Opinion
20 years ago, the international community has made little progress
towards nuclear disarmament and even the prospect of negotiations on
the conclusion of a nuclear weapons convention seems illusory. It is in
this context that, on 24 April 2014, the Republic of the Marshall Islands
(RMI) ﬁled an Application against each of the nine respondent States
(United States, Russia, United Kingdom, France, China, India, Pakistan,
Israel and North Korea) which the Applicant maintains currently possess
nuclear weapons, alleging a failure by the respondent States to fulﬁl obli-
gations concerning negotiations relating to the cessation of the nuclear
arms race at an early date and to nuclear disarmament. Of the nine
respondent States, only Pakistan, India and the United Kingdom for-
mally responded to the RMI Application, each of the three States having

   18 I.C.J. Reports 1996 (I), p. 267, para. 105 (2) F.
   19 UN General Assembly resolution A/RES/51/45 M, 10 December 1996, Advi-
sory Opinion of the International Court of Justice on the legality of the threat or use of
nuclear weapons. The General Assembly has been adopting an almost identical resolution
every year, since the handing down of the Nuclear Weapons Advisory Opinion. See UN
General Assembly resolutions 52/38 O of 9 December 1997; 53/77 W of 4 December 1998;
54/54 Q of 1 December 1999; 55/33 X of 20 November 2000; 56/24 S of 29 November
2001; 57/85 of 22 November 2002; 58/46 of 8 December 2003; 59/83 of 3 December
2004; 60/76 of 8 December 2005; 61/83 of 6 December 2006; 62/39 of 5 December 2007;
63/49 of 2 December 2008; 64/55 of 2 December 2009; 65/76 of 8 December 2010; 66/46
of 2 December 2011; 67/33 of 3 December 2012; 68/42 of 5 December 2013; 69/43 of
2 December 2014; 70/56 of 7 December 2015.

214

1044       nuclear arms and disarmament (sep. op. sebutinde)

previously ﬁled declarations pursuant to Article 36, paragraph 2, of the
Statute of the Court recognizing the compulsory jurisdiction of the Court
(Judgment, para. 22).

      The Threshold for Determining the Existence of a Dispute
               and the New Criterion of “Awareness”

   10. The Marshall Islands bases the jurisdiction of the Court on its
optional clause declaration pursuant to Article 36, paragraph 2, of the
Statute of the Court dated 15 March 2013 and deposited on 24 April
2013, recognizing the compulsory jurisdiction of the Court 20, and that of
the United Kingdom made on 5 July 2004, and deposited on 5 July 2004
(Judgment, para. 1) 21, which declarations the Marshall Islands claims are
“without pertinent reservations” 22. Paragraph 23 of the Judgment out-
lines the ﬁve preliminary objections raised by the United Kingdom against
the Marshall Islands claim. In support of its preliminary objection based
on the absence of a dispute, the United Kingdom argues that (a) prior to
ﬁling its Application, the Marshall Islands never brought its claim to the
United Kingdom’s attention 23, nor attempted to hold diplomatic negotia-
tions with the United Kingdom regarding its claims 24; and (b) that claim
of the Marshall Islands is artiﬁcial and political in nature.
   11. The United Kingdom further points out that the RMI Memorial
only made reference to two statements as proof of the existence of a dis-
pute between the Parties, and that neither the content of these statements
nor the circumstances in which they were made provide any evidence of
the existence of a dispute between the Marshall Islands and the United
Kingdom on the date of the ﬁling of the Application 25. The ﬁrst state-
ment was made in the aforementioned United Nations High-Level Meet-
ing, and was addressed to “all nuclear weapon States” 26. The Respondent
observes this statement did not speciﬁcally mention the United Kingdom
and that it could not in any way be viewed as invoking the latter’s respon-
sibility under international law for any breach of the NPT or of custom-
ary international law 27. The Respondent further observes that the second
    20 Optional Clause Declaration of the Marshall Islands, 24 April 2013, available

at: http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=MH.
  21 Optional Clause Declaration of the United Kingdom, 5 July 2004, available at: http://

www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=GB.
    22 Application of the Marshall Islands (AMI), para. 114 and Memorial of the Marshall

Islands (MMI), paras. 93-94.
    23 Preliminary Objections of the United Kingdom (POUK), p. 14, para. 29, citing

Article 43 of the ILC Articles on State Responsibility.
    24 CR 2016/3, p. 19, para. 25 and CR 2016/7, p. 13, paras. 17-18.
    25 Ibid., and CR 2016/3, p. 26, para. 41 (Bethlehem).
    26 POUK, p. 22, para. 47, citing MMI, p. 98, Ann. 71.
    27 Ibid., and CR 2016/3, pp. 26-27, para. 42 (Bethlehem).

215

1045        nuclear arms and disarmament (sep. op. sebutinde)

statement relied upon by the Marshall Islands was made at an interna-
tional conference at which the United Kingdom was not present 28. The
United Kingdom argues that the Marshall Islands took no steps to bring
this statement to the attention of the United Kingdom 29. Accordingly
there could be no conﬂict of legal positions between the two Parties, and
as such no legal dispute between them 30.
   12. During oral arguments the United Kingdom aﬃrmed that it views
the obligation established in Article VI of the NPT as the “cornerstone”
of that treaty 31, and that as a nuclear-weapon State, it has acted unilater-
ally, signiﬁcantly reducing not only its own stockpile of weapons but also
their delivery systems 32. The United Kingdom also cited statements made
by then Prime Minister Gordon Brown, accepting the disarmament obli-
gations established in the NPT 33, and those made by the Preparatory
Committees leading to the 2015 NPT Review Conference as proof that
the United Kingdom is in fact committed to fulﬁlling its obligations
regarding nuclear disarmament 34.
   13. The Marshall Islands requests the Court to overrule the United
Kingdom’s preliminary objections, maintaining that a dispute did exist at
the time it ﬁled its Application, the subject-matter of which is “the United
Kingdom’s non-compliance with its legal obligations under Article VI of
the NPT and under customary international law to pursue in good faith,
and bring to a conclusion, negotiations leading to the cessation of the
nuclear arms race at an early date and to nuclear disarmament” 35. The
Marshall Islands further submits that prior notiﬁcation to the United King-
dom of its intention to commence proceedings is not a necessary require-
ment. The Marshall Islands argues further that it has repeatedly called for
nuclear-weapon States, including the United Kingdom, to comply with
their international obligations and to negotiate nuclear disarmament 36. In
particular it refers to two of its statements made publicly in multilateral
international conferences before the Application was ﬁled. First, on 26 Sep-
tember 2013, at the United Nations High-Level Meeting on Nuclear Disar-
mament, the Minister of Foreign Aﬀairs of the Marshall Islands called

  28 POUK, p. 23, para. 48 and CR 2016/3, p. 27, para. 44.
  29 POUK, p. 23, para. 48.
  30 Ibid., para. 52.
  31 CR 2016/7, p. 14, para. 20.
  32 Ibid.
  33 Ibid., p. 15, paras. 21-22.
  34 Ibid., para. 22, the cited statement reads:

       “our enduring commitment to the fulﬁlment of our obligations under Article VI
       of the Non-Proliferation Treaty and noted our determination to work together
       in pursuit of our shared goal of nuclear disarmament under Article VI, including
       engagement on the steps outlined in action 5 of the 2010 Review Conference action
       plan, as well as other eﬀorts called for in the action plan.”

  35   MMI, pp. 17-18, para. 42.
  36   Ibid., p. 9, para. 16.

216

1046        nuclear arms and disarmament (sep. op. sebutinde)

upon “all nuclear weapon States to intensify eﬀorts to address their respon-
sibilities in moving towards an eﬀective and secure disarmament” 37. Sec-
ondly, on 13 February 2014, during the Second Conference on the
Humanitarian Impact of Nuclear Weapons at Nayarit, Mexico, the Mar-
shall Islands representative made similar remarks 38.

   14. The Marshall Islands submits that these and other public state-
ments illustrate “with extreme clarity the content of the claim” and that
these statements were “unequivocally directed against all States possess-
ing nuclear arsenals, including the United Kingdom” 39 (emphasis added).
The fact that the United Kingdom participated in at least one of those
conferences was, according to the Marshall Islands, suﬃcient to consider
it notiﬁed of the claim of the Marshall Islands, in particular, because
the Marshall Islands statements were very clear on the subject-matter of
the dispute as well as its legal basis, namely, the failure of
nuclear-weapon States to seriously engage in multilateral negotiations
leading to nuclear disarmament arising under the NPT and/or customary
international law.

   15. In its Judgment, the Court upholds the United Kingdom’s prelimi-
nary objection to jurisdiction on the ground that there was no dispute
between the Parties prior to the ﬁling of the RMI Application (Judgment,
para. 59). I respectfully disagree with that decision as well as the underly-
ing reasoning, and set out my reasons in this separate opinion. In my
view, the evidence on record, when properly tested against the criteria
well-established in the Court’s jurisprudence, shows that a dispute did
exist, albeit in a nascent form, between the Parties before the ﬁling of the
Application and that this dispute crystallized during the proceedings. I
particularly disagree with the new criterion of “awareness” that the
majority introduces, as well as the formalistic and inﬂexible approach
taken in the determination of whether or not a dispute exists (ibid.,
paras. 41-53).

   16. First, as the Judgment rightly points out, the Court’s function
under Article 38 of its Statute, is to decide such inter-State disputes as are
referred to it (Judgment, para. 36). In cases such as this one, where States
have made declarations (with or without reservations) recognizing the
compulsory jurisdiction of the Court under Article 36, paragraph 2,
of that Statute, the jurisdiction of the Court emanates from those very
declarations rather than from the existence of a dispute as such
  37 MMI, Vol. I, Ann. 4: Statement by Honourable Mr. Phillip Muller, Minister of

Foreign Aﬀairs of the Republic of the Marshall Islands, 26 September 2013.
  38 Ibid., Vol. II, Ann. 72: Marshall Islands statement, Second Conference on the

Humanitarian Impact of Nuclear Weapons, Nayarit, Mexico, 13-14 February 2014;
CR 2016/1, pp. 18-19, para. 14 (deBrum), and CR 2016/1, p. 37, para. 20 (Condorelli).
  39   Written Statement of the Marshall Islands (WSMI), p. 16, para. 34.

217

1047       nuclear arms and disarmament (sep. op. sebutinde)

(Judgment, para. 36). The existence of a dispute between the contending
States is merely a precondition for the exercise of that jurisdiction.
   17. Secondly, the Judgment rightly deﬁnes a dispute as “a disagree-
ment on a point of law or fact, a conﬂict of legal views or of interests
between parties” (ibid., para. 37). The Judgment also correctly states that
it is for the Court and not the Parties to determine objectively whether a
dispute exists after examining the facts or evidence before it (ibid.,
para. 39) and that such determination is a matter of substance and not
procedure or form (ibid., para. 38). Thirdly, it is clear from the Court’s
jurisprudence that neither prior notiﬁcation by the applicant, of its claim
to the respondent, nor a formal diplomatic protest by the applicant, are
necessary prerequisites for purposes of determining the existence of a dis-
pute (ibid.). This is particularly so since the NPT, to which both the
United Kingdom and Marshall Islands are party, contains no provision
requiring prior notiﬁcation or diplomatic negotiations.
   18. While the Judgment correctly rehearses the Court’s jurisprudence
regarding the deﬁnition of a “dispute” and the fact that determination
of the existence of a dispute is “a matter of substance, and not a question
of form or procedure”, I disagree with the approach and analysis that the
majority has employed in arriving at the conclusion that there is no
dispute between the Parties. I ﬁnd that approach not only to be both
formalistic and procedural, but also lacking in addressing the substantive
aspects of the Applicant’s claim, such as the conduct of the Respondent.
Given the importance of the subject-matter of nuclear disarmament to
the international community at large, I believe that this is not a case
that should have been easily dismissed on a formalistic or procedural
ﬁnding that no dispute exists between the contending Parties. Instead, a
more substantive approach that analyses the conduct of the contesting
States right up until 24 April 2014 should have been undertaken in
determining whether the Parties had “clearly opposite views” 40. The
Court’s jurisprudence clearly demonstrates the Court’s consistent prefer-
ence for a ﬂexible approach that steers clear of formality or procedural
rigour, right from the days of the Permanent Court of International Jus-
tice 41, and until more recently in Croatia v. Serbia 42.

   40 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 26, para. 50.
   41 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,

p. 34; Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,
P.C.I.J., Series A, No. 6, p. 14.
   42 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,
pp. 428-441, paras. 80-85; Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2011 (I), pp. 84-85, para. 30.

218

1048       nuclear arms and disarmament (sep. op. sebutinde)

  19. Under Article 40, paragraph 1, of the Statute and Article 38, para-
graph 2, of the Rules of Court, an applicant is required to indicate the
“subject of the dispute” in the Application and to specify therein the
“precise nature of the claim” 43. The Marshall Islands did specify its claim
or subject-matter of the dispute in its Application and Memorial as

      “the failure of the United Kingdom to honour its obligation towards
      the Applicant (and other States) 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” 44.

However, it is not suﬃcient, for purposes of demonstrating the existence
of a dispute, for the Marshall Islands to articulate its claims in its Appli-
cation and Memorial. Nor is it suﬃcient merely for one party to assert
that a dispute exists or for the other to deny that it does. It must, in this
case, be demonstrated that the claims of the Marshall Islands are posi-
tively opposed by the United Kingdom or that there is “a disagreement on
a point of law or fact, a conflict of legal views or of interests” between the
two Parties 45 and that this was the case at the time the Application was
ﬁled.
   20. In order for the Court to determine on an objective basis, whether
or not an international dispute exists between the parties, it must examine
the facts or evidence before it, “isolate[ing] the real issue in the case
and identify[ing] the object of the claim” 46. As previously emphasized,
the matter is one of substance, not form 47. Although the dispute must
in principle exist at the time the Application is submitted to the Court 48,
there have been cases in which the Court has adopted a more ﬂexible

   43 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Prelimi-

nary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 25; Fisheries Jurisdic-
tion (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448,
para. 29.
   44 AMI, Parts III and IV and MMI, para. 2.
   45 Mavrommatis Palestine Concessions, 1924, Judgment No. 2, P.C.I.J., Series A,

No. 2, p. 11; emphasis added. It has also been repeated by the ICJ in: Application of
the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, I.C.J. Reports 2011 (I), pp. 84-85,
para. 30; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 28-30,
paras. 37-44.
   46 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29;

Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30;
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objec-
tion, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26.
   47 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), pp. 84-85, para. 30.
   48 Ibid.; Questions of Interpretation and Application of the 1971 Montreal Convention

arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),

219

1049      nuclear arms and disarmament (sep. op. sebutinde)

position, considering that facts arising after the application has been ﬁled
may be taken into account. For example, in the Border and Transborder
Armed Actions (Nicaragua v. Honduras) case, the Court held that:

         “It may however be necessary, in order to determine with certainty
      what the situation was at the date of ﬁling of the Application, to
      examine the events, and in particular the relations between the Par-
      ties, over a period prior to that date, and indeed during the subsequent
      period.” 49
   21. Furthermore, although the Court has stated in the South West
Africa cases that in order for a dispute to exist, the claim of one party
must be “positively opposed” by the other 50, such “positive opposition”
should not be perceived as a formal or procedural disagreement on a
point of law or fact only. In my view, the Court should, consistent with
its jurisprudence rehearsed in the Judgment (paras. 37-40), adopt a sub-
stantive approach whereby if one State adopts a course of conduct to
achieve its own interests, which conduct is then protested by the other, a
positive opposition of views or interests is demonstrated. The perspective
that takes into account the conduct of the contesting parties in determin-
ing the existence or otherwise of a dispute, and with which I agree, was
aptly expressed by Judge Gaetano Morelli in his dissenting opinion in the
South West Africa cases when he stated as follows:

         “As to a disagreement upon a point of law or fact, it is to be
      observed that, while such a disagreement may be present and com-
      monly (but not necessarily) is present where there is a dispute, the two
      things (disagreement and dispute) are not the same. In any event it is
      abundantly clear that a disagreement on a point of law or fact, which
      may indeed be theoretical, is not suﬃcient for a dispute to be regarded
      as existing.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         In my opinion, a dispute consists, not of a conﬂict of interests as
      such, but rather in a contrast between the respective attitudes of the
      parties in relation to a certain conﬂict of interests. The opposing atti-
      tudes of the parties, in relation to a given conﬂict of interests, may
      respectively consist of the manifestations of the will by which each of

Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 25-26, paras. 43-45; 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, pp. 130-131, paras. 42-44.
   49 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and

Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66.
   50 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) Preliminary

Objections, Judgment, I.C.J. Reports 1962, p. 328.

220

1050      nuclear arms and disarmament (sep. op. sebutinde)

      the parties requires that its own interest be realized. It is the case of
      a dispute resulting, on one side, from a claim by one of the parties
      and, on the other side, of the contesting of that claim by the other
      party. But it may also be that one of the opposing attitudes of the
      parties consists, not of a manifestation of the will, but rather of a
      course of conduct by means of which the party pursuing that course
      directly achieves its own interest. This is the case of a claim which is
      followed not by the contesting of the claim but by the adoption of a
      course of conduct by the other party inconsistent with the claim. And
      this is the case too where there is in the ﬁrst place a course of conduct
      by one of the parties to achieve its own interest, which the other party
      meets by a protest.” 51

   22. In order to determine with certainty what the situation was at the
date of ﬁling of the RMI Application, it is necessary to examine the con-
duct of the Parties over the period prior to that date, and during the
subsequent period. The conduct and position of each of the Parties over
the years regarding the possession of nuclear weapons is not in dispute.
The United Kingdom, on the one hand, maintains that as one of the
nuclear-weapon States, it has signiﬁcantly reduced its nuclear arsenal 52,
but is entitled, in the interests of national security to maintain a minimum
level of nuclear arsenal for “primarily deterrent purposes” whose use
would only be contemplated in “extreme circumstances of self-defence” 53.
Further, the United Kingdom accepts that it is bound by the NPT and in
particular Article VI thereof, but considers that the maintenance of
nuclear arsenal for the stated purposes is not in any way incompatible
with its obligations under the NPT 54. The United Kingdom also remains
committed to multilateral negotiations under the NPT towards nuclear
disarmament. However, the conduct of the United Kingdom that the
Marshall Islands has raised issue with, not only in its statements in the
multilateral conferences but also in its Application and Memorial, is “the
United Kingdom’s non-compliance with its legal obligations under the
NPT and customary international law to pursue in good faith, and bring

   51 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) Prelimi-

nary Objections, Judgment, I.C.J. Reports 1962; dissenting opinion of Judge Morelli,
pp. 566-567, Part II, paras. 1-2.
   52 MMI, Ann. 15: Security Britain in an Age of Uncertainty: The Strategic Defence and

Security Review, 19 October 2010, Cm 7948, available at: https://www.gov.uk/government/
uploads/system/uploads/attachment_data/ﬁle/62482/strategic- defence-security-review.pdf;
AMI, pp. 14-15, para. 34.
   53 Statement by Defence Secretary of the United Kingdom, Des Browne, in the House

of Commons, on 22 May 2006, available at: http://www.publications.parliament.uk/pa/
cm200506/cmhansrd/vo060522/text/60522w0014.htm#06052325002261.
   54 The United Kingdom’s position is evident from the statements of high-ranking

Government oﬃcials made both domestically and during international conferences, some
of which statements have been referred to by the Parties in their pleadings.

221

1051      nuclear arms and disarmament (sep. op. sebutinde)

to a conclusion, negotiations leading to nuclear disarmament” 55. Further-
more, the Marshall Islands has also objected to the United Kingdom’s
qualitative and quantitative improvement of its nuclear arsenal 56.

   23. The Marshall Islands maintains that the United Kingdom’s course
of conduct, consisting on the one hand, its participation in the nuclear
arms race and, on the other hand, its failure to pursue multilateral nego-
tiations towards nuclear disarmament, is inconsistent with its obligations
under the NPT and customary international law. Without prejudging the
issue of whether or not the United Kingdom’s conduct referred to above
actually constitutes a breach of an obligation under the NPT or custom-
ary international law (an issue clearly for the merits), the question for
determination is whether, before ﬁling its Application against the United
Kingdom on 24 April 2014, the Parties held clearly opposite views con-
cerning the United Kingdom’s performance or non-performance of cer-
tain international obligations.
   24. In this regard, I have taken into account relevant statements of
high-ranking oﬃcials of each of the Parties. The Marshall Islands speciﬁ-
cally mentions the statements it made when it joined the NPT 57, and
those made during the 2010 NPT Review Conference; the 2013 United
Nations High-Level Meeting on Nuclear Disarmament 58, and the 2014
Conference on the Humanitarian Impact of Nuclear Weapons 59. The
Marshall Islands argues that those statements were suﬃcient to make
each and every one of the nuclear-weapon States, including the United
Kingdom, aware of the Marshall Islands position on the matter 60.

   25. First, on 6 May 2010 at the NPT Review Conference where the
United Kingdom was well represented, the Marshall Islands representa-
tive declared: “We have no tolerance for anything less than strict adher-
ence by Parties to their legal obligations under the NPT.” 61 On another
occasion, the views of the Marshall Islands on nuclear disarmament were
clearly communicated to all nuclear-weapon States present in New York
on 26 September 2013, at the UN High-Level Meeting on Nuclear Disar-
mament, when the Minister of Foreign Aﬀairs of the Marshall
Islands called upon: “all nuclear weapon States to intensify eﬀorts to
address their responsibilities in moving towards an eﬀective and secure

  55  MMI, pp. 17-18, para. 42.
  56  AMI, p. 39, paras. (a) to (d).
   57 CR 2016/5, p. 9, paras. 9-11 (deBrum), citing: Letter dated 22 June 1995 from the

Permanent Representative of the Marshall Islands to the United Nations, together with
Written Statement of the Government of the Marshall Islands.
   58 MMI, p. 43, para. 98 and CR 2016/9, p. 18, para. 7 (Condorelli).
   59 WSMI, p. 16, para. 34 and CR 2016/5, p. 27, para. 18 (Condorelli).
   60 WSMI, p. 16, para. 35.
   61 Ibid., p. 15, para. 32.

222

1052      nuclear arms and disarmament (sep. op. sebutinde)

disarmament” 62. Again the United Kingdom was well represented at this
conference. The United Kingdom was represented at that meeting by
Mr. Alistair Burt, Parliamentary Under-Secretary of State of the
United Kingdom and Northern Ireland, who also made a joint statement
on behalf of the United Kingdom, France and the United States 63. In
that statement, Mr. Burt emphasized the need for a methodical,
step-by-step approach towards the ultimate goal of nuclear disarmament,
including the negotiation of a Fissile Material Cut-oﬀ Treaty and the
entry into force of the Comprehensive Test Ban Treaty (an approach pre-
ferred by the three States), as opposed to initiatives such as “the humani-
tarian consequences campaign” (favoured by the Marshall Islands). In
my view, the content of the two statements at this conference (i.e., that of
the United Kingdom and that of the Marshall Islands) further demon-
strate the opposing views of the Parties regarding the United Kingdom’s
performance or non-performance of international obligations.

  26. Furthermore, the views of the Marshall Islands on nuclear disar-
mament were clearly communicated to all nuclear-weapon States present
on 13 February 2014, at the Second Conference on the Humanitarian
Impact of Nuclear Weapons, when the Marshall Islands made the
so-called “Nayarit Declaration” stating that:

      “the Marshall Islands is convinced that multilateral negotiations on
      achieving and sustaining a world free of nuclear weapons are long
      overdue. Indeed we believe that states possessing nuclear arsenals are
      failing to fulﬁl their legal obligations in this regard. Immediate com-
      mencement and conclusion of such negotiations is required by legal
      obligation of nuclear disarmament resting upon each and every State
      under Article VI of the Non Proliferation Treaty and customary inter-
      national law.” 64 (Emphasis added.)

   27. However, the United Kingdom made a deliberate decision not to
attend this Conference. Its absence was explained as follows:
        “The United Kingdom Government outlined its general position
      towards the Conference in a letter to Jeremy Corbyn on 12 Febru-
   62 MMI, pp. 18-19, para. 45, citing statement by Honourable Mr. Phillip Muller,

Minister of Foreign Aﬀairs of the Republic of the Marshall Islands, 26 September 2013;
emphasis added.
   63 POUK, Ann. 9: Statement of the Parliamentary Under Secretary of State of the

United Kingdom of Great Britain and Northern Ireland, Alistair Burt, on behalf of France,
the United Kingdom and the United States at the UN General Assembly High-Level
Meeting on Nuclear Disarmament on 26 September 2013.
  64 MMI, Vol. II, Ann. 72; Marshall Islands Statement, Second Conference on the

Humanitarian Impact of Nuclear Weapons, Nayarit, Mexico, 13-14 February 2014.

223

1053      nuclear arms and disarmament (sep. op. sebutinde)

      ary 2014. This was in relation to the question of United Kingdom
      attendance at the Conference in Mexico in February . . .

         In that letter, Mr. Robertson explained that the United Kingdom
      ‘shares deep concern at the catastrophic humanitarian consequences
      of any use of nuclear weapons, expressed by the NPT State parties at
      the 2010 Review Conference’. He added, however, that after careful
      consideration, the Foreign and Commonwealth Oﬃce had decided
      against attending the Mexico conference because of concerns that
      ‘some eﬀorts under the humanitarian consequences initiative appear
      increasingly aimed at pursuing a Nuclear Weapons Convention pro-
      hibiting nuclear weapons outright’. He went on to state that ‘the
      United Kingdom believes the NPT should remain the cornerstone of
      the international nuclear non-proliferation regime and the essential
      foundation for the pursuit of nuclear disarmament and for peace-
      ful uses of nuclear energy’. As such the best way to achieve the goal
      of a world without nuclear weapons is ‘through gradual disarma-
      ment negotiated using the NPT Step-by-Step process and Review
      cycle’.” 65

   28. The United Kingdom’s decision not to participate in this confer-
ence was clearly consistent with its long-standing position on multilateral
negotiations towards nuclear disarmament. It is also clear that the United
Kingdom was wary of what it describes as “eﬀorts under the humanitar-
ian consequences initiative aimed at pursuing a Nuclear Weapons Con-
vention prohibiting nuclear weapons outright”, as this is clearly not the
kind of approach to nuclear disarmament the United Kingdom favours.
Based on the above explanation, it cannot be said that the United King-
dom was totally oblivious of the Nayarit agenda or of the fact that
non-nuclear-weapon States like the Marshall Islands would be taking a
view opposed to that of the United Kingdom as far as multilateral nego-
tiations on nuclear disarmament are concerned. Quite to the contrary, the
United Kingdom anticipated the thrust of the discussions at Nayarit and
decided it was not meaningful for it to attend the conference. Thus, far
from proving the United Kingdom’s ignorance or “unawareness” (to use
the new criterion adopted by the majority) of what transpired at Nayarit,
this tactical or deliberate avoidance of the Nayarit conference is further
demonstration of the opposing views between the United Kingdom and
the Marshall Islands. The Court should have taken into account the
United Kingdom’s conduct in this regard instead of taking a formalistic
approach and concluding that it was “unaware” of the Marshall Islands
position at Nayarit.

  65 Conference on the Humanitarian Impact of Nuclear Weapons, House of Commons

Research Note prepared by Claire Mills, 3 December 2014, p. 7.

224

1054      nuclear arms and disarmament (sep. op. sebutinde)

   29. In my view, those statements also represent the Marshall Islands’
claim that nuclear-weapon States, including the United Kingdom, are
obliged under the NPT and/or customary international law, to pursue
negotiations leading to nuclear disarmament. Furthermore, I do not sub-
scribe to the view that in the context of these multilateral conferences, it
was necessary for the Marshall Islands to single out and name each of the
nine nuclear States in order for it to validly express its claim against each
of them (Judgment, paras. 49-50). A distinction ought to be drawn
between a purely bilateral setting where the applicant must single out the
respondent and articulate to that respondent the particular conduct to
which the applicant is opposed, and a setting involving multilateral
exchanges or processes such as the present case, where it is well known
throughout the international community, that amongst the over 191
member States to the NPT, only nine possess nuclear weapons. To insist
that the Marshall Islands should have identiﬁed each of these States by
name and mentioned the conduct of each one that it objects to, is to
apply form over substance.

          The New Criterion of “Awareness” in Determining
                 the Existence of a Dispute Is Alien
                   to the Court’s Jurisprudence

   30. Hitherto, the Court has not made it a legal prerequisite for an
applicant to prove that before the application was ﬁled, the respondent
State “was aware or could not have been unaware that its views are posi-
tively opposed by the applicant” State, before making a determination
that a dispute exists (Judgment, para. 41). This new test is not only alien
to the established jurisprudence of the Court but also directly contradicts
what the Court has stated in the past and with no convincing reasons. On
every occasion that the Court has had to examine the issue of whether or
not a dispute exists, it has emphasized that this is a role reserved for its
objective determination 66 (not that of the parties) and that that determi-
nation must involve an examination in substance and not form, of the
facts or evidence before the Court 67. For example, the Court has categor-
ically stated in the South West Africa cases 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

   66 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,

Advisory Opinion, I.C.J. Reports 1950, p. 74.
   67 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), pp. 84-85, para. 30.

225

1055      nuclear arms and disarmament (sep. op. sebutinde)

      shown that the claim of one party is positively opposed by the
      other.” 68
Also in Nicaragua v. Colombia the Court stated that, “although a formal
diplomatic protest may be an important step to bring the claim of one
party to the attention of the other, such a formal protest is not a neces-
sary condition [for the existence of a dispute]” 69.
   31. By introducing proof of “awareness” as a new legal requirement,
what the majority has done was to raise the evidentiary threshold that
will from now on require not only an applicant, but the Court itself, to
delve into the “mind” of a respondent State in order to ﬁnd out about its
state of awareness. In my view, this formalistic requirement is not only
problematic but also directly contradicts the principle in Nicaragua v.
Colombia quoted above, since the surest way of ensuring awareness is for
an applicant to make some form of formal notiﬁcation or diplomatic pro-
test. The test also introduces subjectivity into an equation previously
reserved “for the Court’s objective determination”.
   32. It is also pertinent to note that paragraph 73 of Nicaragua v.
Colombia cited by the majority at paragraph 41 of the Judgment as the
basis for the new “awareness” test, merely sets out the factual assessment
conducted by the Court to determine whether a dispute existed in that
case 70, and not the legal test applicable. In paragraph 72 of Nicaragua v.
Colombia, immediately preceding, the Court had just observed that,

      “although a formal diplomatic protest may be an important step to
      bring a claim of one party to the attention of the other, such a formal
      protest is not a necessary condition . . . in determining whether a
      dispute exists or not, ‘[t]he matter is one of substance, not of form’” 71.

It is clear that the Court in that case was not prepared to turn a speciﬁc
factual ﬁnding into a formalistic legal requirement for prior notiﬁcation.
In my view, it would be inappropriate to turn what was clearly a factual
observation into a rigid legal test that was rejected by the Court in that
case.

   68 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

Objections, Judgment, I.C.J. Reports 1962, p. 328.
   69 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

(Nicaragua v. Colombia) Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32,
para. 72.
   70 The exact quotation of paragraph 73 is “Colombia was aware that its enactment

of Decree 1946 and its conduct in the maritime areas declared by the 2012 Judgment to
belong to Nicaragua were positively opposed by Nicaragua”. The applicable legal frame-
work regarding the existence of the dispute is quoted at: Alleged Violations of Sovereign
Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), pp. 26-27, paras. 49-52.
   71 Ibid., para. 72.

226

1056       nuclear arms and disarmament (sep. op. sebutinde)

   33. Similarly, Georgia v. Russian Federation 72, also cited in the Judg-
ment at paragraph 41 in support of the majority view, is inapplicable and
should be distinguished. That case involved the interpretation and appli-
cation of a speciﬁc treaty (the Convention on the Elimination of All
Forms of Racial Discrimination) to which both Georgia and Russia were
party. Article 22 of that treaty (the compromissory clause conferring
jurisdiction on the Court) has an express requirement that, prior to ﬁling
a case before the Court, the contending parties must ﬁrst try to settle the
dispute by negotiation or by other processes stipulated in the Conven-
tion 73. It was imperative in that case for the Applicant to prove that prior
to seising the Court, it had not only notiﬁed the Respondent of its claims
but that the two had attempted negotiating a settlement. It was therefore
logical that the respondent formally be made “aware” of the applicant’s
claim before negotiations could take place. That case is in stark contrast
to the present case where no such compromissory clause exists requiring
prior negotiations or formal notiﬁcation or “awareness”. Accordingly
Georgia v. Russian Federation is, in my view, distinguishable and inappli-
cable as an authority for the “awareness” test.

                                      Conclusion

   34. Based on the evidence examined above, my view is that, as at the
date on which the Application was ﬁled, there existed a dispute between
the Parties concerning the alleged violation by the United Kingdom, of
an obligation under Article VI of the NPT and under customary interna-
tional law 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.

                                                        (Signed) Julia Sebutinde.

   72 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation) Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 70.
   73 Article 22 of the Convention stipulated that:

         “Any dispute between two or more States parties with respect to the interpretation
      or application of this Convention, which is not settled by negotiation or by proce-
      dures expressly provided for in this Convention, shall, at the request of any of the
      parties to the dispute, be referred to the International Court of Justice for decision,
      unless the disputants agree to another mode of settlement.”

227