770

           DISSENTING OPINION OF JUDGE ROBINSON

   I disagree with the majority’s conclusion that there is no dispute in this case —
Role of the Court as envisaged by the United Nations Charter — Linear
development of the Court’s case law stressing objectivity, flexibility and substance
over form in the determination of dispute — The Court’s enquiry is empirical and
pragmatic, focused simply on whether or not the evidence reveals clearly opposite
views — Court’s case law does not support criterion applied by the majority that
the Respondent was aware or could not have been unaware that its views were
“positively opposed” by the Applicant — Awareness may be confirmatory, but is
not a prerequisite for determining the existence of a dispute — The Court has
previously relied upon post-Application evidence as determinative of the existence
of a dispute — Even if the test set out by the majority is applied to the facts of the
case, there is a dispute between the Parties.

  1. In this opinion, I explain why I have dissented from the majority
decision that there was no dispute between the Marshall Islands and
Pakistan.

                                I. Introduction

   2. In the period of twenty months that I have served on this Court, I
have been privileged to consider the impact of many international law
obligations in cases before the Court. But I dare say that, were I to con-
sider the impact of another thousand obligations in the rest of my term,
none would be, by virtue of the existential threat to mankind posed by
nuclear weapons, as critically important for the work of the Court and
the interests of the international community as the question of the obliga-
tion to pursue in good faith and bring to a conclusion negotiations lead-
ing to nuclear disarmament in all its aspects under strict and eﬀective
international control.

  3. The United Nations Charter has assigned the Court a special role,
giving it a particular relevance in the maintenance of international peace
and security through the exercise of its judicial functions. It is regrettable
that the majority did not seize the opportunity presented by this case to

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demonstrate the Court’s sensitivity to that role. It is even more regretta-
ble that this failure could have been avoided had the Court simply fol-
lowed its own case law. The Court’s case law has been consistent in the
approach to be adopted in determining the existence of a dispute; an
approach that is not reﬂected in the Judgment.

   4. The jurisprudence of the Court calls for an objective, ﬂexible and
pragmatic approach in determining the existence of a dispute. It is ﬁrmly
established in the Court’s jurisprudence that a dispute arises where, exam-
ined objectively, there are “clearly opposite views concerning the question
of the performance or non-performance” 1 of a State’s obligations. There is
not a single case in the Court’s case law that authorizes the majority’s prop-
osition that the determination of the existence of a dispute requires a ﬁnd-
ing of the respondent’s awareness of the applicant’s positive opposition to
its views; that is, that the absence of evidence of the respondent’s awareness
of the other party’s opposing view is fatal to a ﬁnding that a dispute exists.
   5. The requirement that there be a “dispute” is designed to ensure that
what the Court is being asked to decide is susceptible to its authority and
competence, or, as Judge Fitzmaurice in his separate opinion in Northern
Cameroons said, the dispute must be “capable of engaging the judicial
function of the Court” 2. It is a question of the nature and character,
determined objectively, of the claim presented to the Court. It is not
about mandating that an applicant State jump through various hoops
suggesting a formal approach before it can appear in the Great Hall of
Justice.

   6. The Court and its predecessor, the Permanent Court of Interna-
tional Justice (PCIJ), have developed a signiﬁcant body of jurisprudence
interpreting the requirement that the Court can only decide a “dispute”
or “legal dispute”, as discussed in the next section of this opinion. How-
ever, it is important to note, that while many respondents have raised the
objection that the Court does not have jurisdiction because there is no
dispute, the Court has more often than not rejected this objection 3. This
is in keeping with a ﬂexible approach to ﬁnding a dispute — the criteria
    1 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,

Advisory Opinion, I.C.J. Reports 1950, p. 74.
    2 Judge Fitzmaurice, separate opinion to case concerning the Northern Cameroons

(Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 98.
    3 See, for example, the cases cited later in this opinion. In Alleged Violations, the Court

determined that “Nicaragua makes two distinct claims — one that Colombia has violated
Nicaragua’s sovereign rights and maritime zones, and the other that Colombia has breached
its obligation not to use or threaten to use force”. The Court found that there was a dispute
in respect of the ﬁrst claim and no dispute in respect of the second. 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. 31, 33, paras. 67, 74, 78. See
also Christian Tomuschat, Commentary to Article 36, Andreas Zimmermann et al. (eds.),
The Statute of the International Court of Justice: A Commentary (2nd edition, 2012), p. 642,

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for determining the existence of a dispute are not intended to create a
high bar.

  Before examining the Court’s case law, I look brieﬂy at the Court’s role
under the United Nations Charter.

                   II. The Role of the Court as Envisaged
                        by the United Nations Charter

   7. An objective, ﬂexible and pragmatic approach to ﬁnding a dispute
iscalled for by the role envisaged for the Court by the United Nations
Charter. As I explained in my separate opinion in the case concerning
Certain Activities/Construction of a Road issued in December 2015:

          “The United Nations Charter also highlights the important role the
       Court has in the peaceful settlement of disputes, ‘the continuance of
       which is likely to endanger the maintenance of international peace
       and security’ and thus undermine the Purposes of the United Nations
       Charter 4. Article 92 of the United Nations Charter identiﬁes the
       Court as the principal judicial organ of the United Nations and pro-
       vides that its Statute — annexed to the United Nations Charter — is
       an integral part of the United Nations Charter. Article 36 (3) of the
       United Nations Charter provides that the Security Council ‘should
       also take into consideration that legal disputes, as a general rule, be
       referred by the parties to the International Court of Justice’. It is thus
       clear that the Court is expected, through its judicial function, to con-
       tribute to the maintenance of international peace and security. There-
       fore, the discharge by the Court of its judicial functions is not
       peripheral to, but is an integral part of the post-World War II system
       for the maintenance of international peace and security.” 5

   8. The Court has a diﬀerent relationship with the United Nations Char-
ter from that between the PCIJ and the Covenant of the League of
Nations. Although the latter provided for the establishment of the PCIJ,
it gave that Court no pre-eminence in relation to other methods of inter-

para. 9: “[w]ith this limitation [that the applicant must advance a legal claim], the concept
of jurisdiction has always been interpreted in a truly broad sense. As far as can be seen, no
case has been rejected as not encapsulating a dispute.”

   4 Article 33 of the UN Charter.
   5 Judge Robinson, separate opinion in the case concerning Certain Activities Carried
Out in Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports
2015 (II), p. 676, para. 30.

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national dispute resolution 6. The United Nations Charter, on the other
hand, identiﬁes the Court as the “principal judicial organ of the
United Nations” 7. Each party to the United Nations Charter is ipso facto
party to the ICJ Statute. This is logically linked to (i) Article 36 (3) —
that while States may choose between a variety of dispute resolution
methods, Article 36 (3) envisages that legal disputes should — as a gen-
eral rule — be referred to the ICJ; and (ii) Article 1 (1), identifying the
purposes of the United Nations as including “to bring about by peaceful
means, and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace” 8. “Having recourse to the ICJ,
whose function is to decide disputes in accordance with international
law . . . is the most obvious way to realize that purpose.” 9 Therefore the
Court’s exercise of its judicial functions cannot be divorced from the
architecture of the system established to respond to the atrocities of
World War II. The Court was intended to play a positive role in the main-
tenance of international peace and security. It is diﬃcult to see how the
Court can discharge its responsibility to contribute to the maintenance of
international peace and security through the peaceful settlement of dis-
putes, if it establishes additional criteria that have no basis in its case law,
thus making it more diﬃcult for parties to avail themselves of its jurisdic-
tion.

   6   Article 14 of the Covenant of the League of Nations reads:
       “[t]he Council shall formulate and submit to the Members of the League for adoption
       plans for the establishment of a Permanent Court of International Justice. The Court
       shall be competent to hear and determine any dispute of an international character
       which the parties thereto submit to it. The Court may also give an advisory opinion
       upon any dispute or question referred to it by the Council or by the Assembly.”
  Article 13 states:
          “Disputes as to the interpretation of a treaty, as to any question of international
       law, as to the existence of any fact which if established would constitute a breach of
       any international obligation, or as to the extent and nature of the reparation to be
       made for any such breach, are declared to be among those which are generally suit-
       able for submission to arbitration or judicial settlement.
          For the consideration of any such dispute, the court to which the case is referred
       shall be the Permanent Court of International Justice, established in accordance with
       Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any
       convention existing between them.”
   7Article 92 of the UN Charter.
   8Thomas Giegerich, Commentary to Article 36 (above note 3), p. 154, para. 52.
  9 Ibid., see also United States Diplomatic and Consular Staff in Tehran (United States of

America v. Iran), Judgment, I.C.J. Reports 1980, p. 22, para. 40.
          “It is for the Court, the principal judicial organ of the United Nations, to resolve
       any legal questions that may be in issue between parties to a dispute; and the resolu-
       tion of such legal questions by the Court may be an important, and sometimes deci-
       sive, factor in promoting the peaceful settlement of the dispute.”

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                      III. The Court’s Jurisprudence

  9. In paragraph 38 of the Judgment, the majority states:
         “The evidence must show that the parties ‘hold clearly opposite
      views’ with respect to the issue brought before the Court . . . As
      reﬂected in previous decisions of the Court in which the existence of
      a dispute was under consideration, 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 (Alleged Violations of Sovereign Rights and
      Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Pre-
      liminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32, para. 73;
      Application of the International Convention on the Elimination of All
      Forms of Racial Discrimination (Georgia v. Russian Federation), Pre-
      liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 99, para. 61,
      pp. 109-110, para. 87, p. 117, para. 104).”

It is on the basis of this ﬁnding that the majority upholds the Respon-
dent’s objection that there is no dispute in this case. The burden of this
opinion is that this holding is, as is shown by the analysis of the Court’s
case law below, incorrect, as a matter of doctrine, of law, and of fact.

                1. The Mavrommatis Palestine Concessions
  10. Mavrommatis was a Greek national who owned “concessions for
certain public works to be constructed in Palestine” under contracts and
agreements signed with the Ottoman Empire. The Government of the
Greek Republic, espousing the claim of its national, claimed that the
Government of Palestine and the Government of His Britannic Majesty
(Great Britain), by virtue of its power as a Mandate, failed to recognize
the extent of Mavrommatis’s rights under two groups of concessions, and
requested that the PCIJ order the payment of compensation as a result.
The claim was brought under Article 9 of Protocol XII annexed to the
Peace Treaty of Lausanne 1923, and Articles 11 and 26 of the Mandate
for Palestine conferred on Britain 1922.

  11. The British Government objected to the PCIJ’s jurisdiction, and
the PCIJ proceeded to examine whether or not it had jurisdiction under
Article 26 of the Mandate. Article 26 gave the PCIJ jurisdiction over dis-
putes “between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the provisions
of the Mandate”, that could not “be settled by negotiation”. In determin-
ing that there was a dispute susceptible to its jurisdiction, the PCIJ pro-
ceeded to set out its famous dictum on the deﬁnition of a dispute:

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“[a] dispute is a disagreement on a point of law or fact, a conﬂict of legal
views or of interests between two persons” 10.

   12. The PCIJ found that the dispute “certainly possess[ed] these
characteristics” 11. The Greek Republic was asserting that the Palestinian
or British authorities had treated one of its citizens in a manner incom-
patible with international law obligations by which they were bound, and
had requested an “indemnity” on this basis 12.
   13. In this case, which is very much the Alpha in the Court’s examina-
tion of the criteria for the existence of a dispute, and which is cited in the
Judgment at paragraph 34, there is no reference, express or implied, to
the mental state of the respondent State, as a criterion for the existence of
a dispute. The focus of the case is simply on a disagreement or conﬂict
between the parties. Implicit in the dictum from Mavrommatis is that, in
determining the existence of a dispute, the Court carries out an analysis
of the facts that may show a conﬂict of legal views or interests; there is no
suggestion that this analysis is in any way inﬂuenced by the Respondent’s
awareness of the Applicant’s position.

   14. The Mavrommatis deﬁnition has been frequently relied upon by the
Court, as the brief survey of jurisprudence below reveals. Although the
deﬁnition of a dispute has been developed and consolidated over time,
these developments have, for the most part, followed a path that is in line
with the position taken in Mavrommatis. The addition of awareness as a
prerequisite for a ﬁnding of a dispute, on the other hand, is not a minor
deviation, but represents a seismic change in what the Court requires
before it will proceed to examine the merits of a claim 13. Attempts to
debunk Mavrommatis from its pedestal will fail. Mavrommatis will always
retain its signiﬁcance when considering what constitutes a “dispute” for
the purposes of Article 36 of the Statute, not merely because it was the
ﬁrst case to set out a deﬁnition, but more importantly because it identiﬁes
the parameters of a dispute between States.

   10    Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 11.
   11 Ibid.
   12 Ibid., p. 12.
   13 See, for example, Robert Kolb’s examination of the Court’s jurisprudence up until

[2009], where he notes that the Mavrommatis deﬁnition has been followed “in a remarkably
consistent and continuous way”, although it “has now and then been subjected to subtle
minor variations, and also to some rather questionable additions”. Robert Kolb, The Inter-
national Court of Justice (Hart Publishing, 2013), p. 302.

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                      2. Interpretation of Peace Treaties
   15. By means of a resolution dated 22 October 1949, the General
Assembly decided to request an advisory opinion on two questions
relating to the Treaties of Peace signed with Bulgaria, Hungary and
Romania.
   16. The ﬁrst question put before the Court was whether or not diplo-
matic exchanges between Bulgaria, Hungary and Romania and “certain
Allied and Associated Powers signatories to the Treaties of Peace” regard-
ing the implementation of certain provisions in those treaties disclosed
“disputes” subject to the dispute settlement provisions of those treaties.
The diplomatic exchanges included concerns and accusations regarding
the observance of human rights and fundamental freedoms by the three
Governments. In order to determine this question, the Court divided the
issues, and examined, ﬁrst, whether or not the diplomatic exchanges dis-
closed any disputes per se.

   17. The Court started by setting out its now oft-repeated mantra:
“[w]hether there exists an international dispute is a matter for objective
determination” 14. In my view, this is one of the Court’s most important
dicta in determining the criteria for a dispute. The logical result of objec-
tive determination is that: “[t]he mere denial of the existence of a dispute
does not prove its non-existence” 15.

   18. In its application to the facts, the Court noted that the diplomatic
exchanges included allegations that the Governments of Bulgaria, Roma-
nia and Hungary had violated various provisions of the Peace Treaties
and requested that they take remedial measures. Bulgaria, Romania and
Hungary, on the other hand, denied the charges. The exchanges thus
showed that “[t]here has . . . arisen a situation in which the two sides hold
clearly opposite views concerning the question of the performance or
non-performance of certain treaty obligations” 16. On this basis, the Court
concluded that international disputes had arisen 17.

   19. Here again, as in Mavrommatis, the question of the awareness of
the Respondent, was not a factor. The focus was not on Bulgaria, Hun-
gary and Romania’s awareness of the dispute. The Court’s formulation,
that a dispute was present where “the two sides hold clearly opposite
views concerning the question of the performance or non-performance of
certain treaty obligations”, is a classic illustration of the application of an
  14 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,

Advisory Opinion, I.C.J. Reports 1950, p. 74.
  15 Ibid.
  16 Ibid.
  17 Ibid., pp. 74-75.

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objective approach. It requires no more than that the Court simply look
at the parties’ positions, and determine whether they “have shown them-
selves as holding opposite views” 18; in doing so there is not the slightest
suggestion of the need to resort to any question of the respondent’s
awareness of the applicant’s position.

                           3. South West Africa Cases
   20. Liberia and Ethiopia both brought cases against South Africa,
which were joined by order of the Court on 20 May 1961. The applicants
alleged that South Africa was acting in violation of various provisions of
the Covenant of the League of Nations and the Mandate for
South West Africa, including by practising apartheid in its administration
of South West Africa. As a preliminary matter, the Court examined
whether or not the subject-matter of the Applications ﬁled by Liberia and
Ethiopia constituted a dispute between the Applicants and South Africa.
The Court repeated its deﬁnition of a dispute from the case of Mavrom-
matis Palestine Concessions (as set out above), and noted that it is not
suﬃcient for one party to assert or deny that a dispute exists, a position
consistent with the objective task that the Court has set itself:

        “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.” 19

Applying this test to the facts of the case before it, the Court noted that
there could “be no doubt” about the existence of a dispute between the
parties in the South West Africa cases. A dispute was “clearly constituted”
by the opposing attitudes of the parties to South Africa’s performance of
its international obligations as Mandatory 20.

   21. Judge Morelli, in his dissenting opinion, drew a distinction between
a dispute and a disagreement; and between a dispute and a conﬂict of
interests. He noted that the opposing attitudes of the parties may consist

   18 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11,

1927, P.C.I.J., Series A, No. 13, pp. 10-11.
   19 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

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

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of a “manifestation of the will” or a “course of conduct by means of
which the party pursuing that course directly achieves its own interest”
which is “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” 21. The Judgment,
at paragraphs 37 and 52, also acknowledges the evidentiary value of a
party’s conduct in the determination of a dispute.

   22. Here, again, the Court made no explicit or implicit reference to
awareness as a criterion for ﬁnding the existence of a dispute. Rather, the
Court’s stress was on the Parties’ “opposing attitudes relating to the per-
formance of the obligations” 22. In searching for positive opposition, the
Court was reaﬃrming the test that it had set out in Interpretation of Peace
Treaties, that a dispute was constituted where the parties held “clearly
opposite views concerning the question of the performance or non-perfor-
mance” of international obligations. It was not developing a new test nor
establishing any additional criteria; whether States hold “clearly opposite
views” or whether “the claim of one party is positively opposed by the
other” is essentially the same question, inviting the same objective deter-
mination, without recourse to any mental element, such as awareness, on
the part of the respondent.

                     IV. Paragraph 38 of the Judgment

  23. The manner in which the Court considers opposition of views in
the current case calls for close examination. As noted above, paragraph 38
provides:
         “The evidence must show that the parties ‘hold clearly opposite
      views’ with respect to the issue brought before the Court (see para-
      graph 34 above). As reﬂected in previous decisions of the Court in
      which the existence of a dispute was under consideration, a dispute
      exists when it is demonstrated, on the basis of the evidence, that the
      respondent was aware, or could not have been unaware, that its views
      were ‘positively opposed’ by the applicant (Alleged Violations of Sov-
      ereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.

   21 Dissenting opinion of Judge Morelli, South West Africa (Ethiopia v. South Africa;

Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 567.
   22 Ibid., p. 328.

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779        nuclear arms and disarmament (diss. op. robinson)

      Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
      p. 32, para. 73; 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. 99, para. 61, pp. 109-110, para. 87, p. 117, para. 104).”

   24. The ﬁrst point to note about this paragraph is that it plunges us,
quite unnecessarily, into the murky legal world of the state of mind of a
State. The emphasis placed on awareness would seem to introduce
through the back door a requirement that the Court has previously
rejected 23, i.e., an obligation on the applicant to notify the other State of
its claim.

  25. It is a misinterpretation of the approach set out by the Court in its
prior case law (and discussed earlier in this opinion) to state that the
determination that a dispute exists requires a showing of the respondent’s
awareness of the applicant’s positive opposition to its views. To establish
whether the parties hold clearly opposite views, it is suﬃcient to examine
the positions of the parties on the issue as objectively revealed by the evi-
dence before the Court, without regard to their awareness of the other
party’s position. It is, of course, perfectly possible to conduct an objective
examination of a subjective factor; however, the issue in this case is
whether there is any legal basis for that subjective element.

   26. In paragraph 38, the majority refers to two cases in support of its
position: Alleged Violations of Sovereign Rights and Maritime Space in the
Caribbean Sea (Nicaragua v. Colombia) (Alleged Violations) and Appli-
cation of the Convention on the Elimination of All Forms of Racial Dis-
crimination (Georgia v. Russian Federation) (Application of the CERD).
In paragraph 73 of Alleged Violations, cited by the majority, the Court
   23 See paragraph 35 of the Judgment. In Alleged Violations of Sovereign Rights and

Maritime Space in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 32, para. 72, the Court stated:
         “Concerning Colombia’s argument that Nicaragua did not lodge a complaint
      of alleged violations with Colombia through diplomatic channels until long after it
      ﬁled the Application, the Court is of the view 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. As the Court held in
      the case concerning Application of the International Convention on the Elimination of
      All Forms of Racial Discrimination (Georgia v. Russian Federation), in determining
      whether a dispute exists or not, ‘[t]he matter is one of substance, not of form’ (Prelim-
      inary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30).”

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was responding to Colombia’s argument that Nicaragua had not
“indicate[d] . . . by any modality, that Colombia was violating . . .” 24 its
international obligations vis-à-vis Nicaragua, and had not raised any
complaints until it sent a diplomatic Note after the Application had been
ﬁled. The Court noted:
      “although Nicaragua did not send its formal diplomatic Note to
      Colombia in protest at the latter’s alleged violations of its maritime
      rights at sea until 13 September 2014, almost ten months after the
      ﬁling of the Application, in the speciﬁc circumstances of the present
      case, the evidence clearly indicates that, at the time when the Appli-
      cation was ﬁled, Colombia was aware that its enactment of Decree
      1946 and its conduct in the maritime areas declared by the 2012 Judg-
      ment to belong to Nicaragua were positively opposed by Nicaragua.
      Given the public statements made by the highest representatives of
      the Parties, such as those referred to in paragraph 69, Colombia could
      not have misunderstood the position of Nicaragua over such diﬀer-
      ences.” (I.C.J. Reports 2016 (I), pp. 32-33, para. 73.)

   27. The Court’s statement represents the application of an objective
standard, with the Court eschewing formalities as a particular bar to ﬁnd-
ing a dispute. The Court examined the evidence presented and empha-
sized by the parties, including statements and conduct, to conclude that
there was positive opposition. Far from establishing awareness as a crite-
rion of the dispute, the references to awareness and understanding are
factual statements made in the speciﬁc circumstances of the case in sup-
port of the Court’s conclusion. There is no suggestion that these refer-
ences are an expression of a legal test. While the element of awareness
may sharpen the positive opposition, it is not expressed as a prerequisite
for that opposition. Moreover, the Court emphasized that the ﬁnding of
a dispute is a matter of substance and not of form 25.

  28. The majority’s reliance on Application of the CERD is as unsatis-
factory as the use it made of Alleged Violations. The Court’s primary pur-
pose in carrying out an examination of the documents and exchanges
presented by the applicant as evidence of a dispute was to establish
whether, in light of the speciﬁc objections raised, Russia was the intended
addressee of the documents, and, if so, whether the documents related to
the application or interpretation of the Convention on the Elimination of

   24 Alleged Violations of Sovereign Rights and Maritime Space in the Caribbean Sea

(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 28,
para. 55 et seq.
   25 Ibid., paras. 50 and 72.

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781       nuclear arms and disarmament (diss. op. robinson)

All Forms of Racial Discrimination (CERD). In many instances, the
Court found that the documents were not addressed to Russia and, in any
event, that they did not reveal a dispute concerning the application and
interpretation of the CERD, as per Article 22.

   29. At the outset, it is worth noting the particular circumstances before
the Court in Application of the CERD. The Court upheld Russia’s second
preliminary objection in this case because it decided that Georgia had not
satisﬁed the negotiations and procedures expressly provided for in the
CERD before a dispute could be brought under Article 22. This decision
is of limited value as a precedent in the circumstances of this case.

   30. In any case, the passages relied upon by the majority do not sup-
port its conclusion that the Court, in Application of the CERD, invoked
awareness as a requirement in the ﬁnding of a dispute. Given the Court’s
cautionary statement as to the signiﬁcance of the analysis it carried out in
Section II (4) of the Judgment, it is not at all clear how reliance on the
ﬁnding in paragraph 61 becomes helpful to the position of the majority.
Section II (4) is devoted to documents and statements from the period
before the CERD entered into force between the parties on 2 July 1999.
The Court was careful to explain in paragraph 50 that it was only carry-
ing out an examination of documents and statements in that period
because Georgia contended that its dispute with the Russian Federation
was “long-standing and legitimate and not of recent invention”. The
Court then went on to say that those earlier documents “may help to put
into context those documents or statements which were issued or made
after the entry into force of CERD between the Parties” 26. Why anyone
would rely on a dictum from that section in relation to the question of the
existence of a dispute is diﬃcult to understand, since, for the purposes of
that case, there could be no dispute which fell within the terms of CERD
between the parties at the time under examination, and the Court had
explained the limited and very speciﬁc context in which it was examining
documents and statements from that period.

   31. Paragraph 61 relevantly reads: “There is no evidence that this Par-
liamentary statement, directed at ‘separatists’ and alleging violations of
agreements which could not at that time have included CERD, was
known to the authorities of the Russian Federation.” One of the issues
before the Court was Russia’s argument that it was not a party to a dis-

   26 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. 94, para. 50.

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782       nuclear arms and disarmament (diss. op. robinson)

pute with Georgia; that and it was nothing more than a facilitator and
that the real disputants were Abkhazia and South Ossetia 27. Thus, the
reference to Russia’s lack of knowledge should also be viewed in light of
the fact that much of the evidence pointed to by Georgia as relevant to
the question of the existence of a dispute was actually directed to other
parties. The reference to Russia’s lack of knowledge was a factual state-
ment highlighting that Russia was not the addressee of the Parliamentary
statement. There is nothing, either in express or implied terms, in para-
graph 61 to suggest that the Court was setting up awareness or know-
ledge that its views were positively opposed on the part of the respondent
as a requirement for a ﬁnding of a dispute. The Court dismissed the state-
ment on the basis that it did not have any legal signiﬁcance in the deter-
mination of the dispute.

  32. In paragraph 87, the Court notes that Russia was aware of a Geor-
gian Parliamentary action relating to Russia’s peacekeeping operations.
However, the Court makes this statement without seeking to develop it
and with no suggestion that this was a vital element in its consideration
of the question of the existence of a dispute. Indeed, the Court went on to
dismiss the documents as not having any legal signiﬁcance in the determi-
nation of the dispute. Again, the Court’s analysis must be viewed in light
of the disagreement about the proper parties to the dispute and, more
particularly, whether Georgia’s claims were made against Russia. The dif-
ﬁculty for the majority in relying upon paragraph 87 in support of its
position that awareness is a condition for the ﬁnding of a dispute is that
the Court in the Application of the CERD does not state this explicitly,
nor is there anything in the text that allows the reader to infer awareness
as such a condition. In fact, the Court does not develop its analysis in any
way beyond a factual statement of the particular circumstances surround-
ing the documents in question. Moreover, the majority decision itself
oﬀers no explanation as to how paragraph 87 is an authority for the
proposition that awareness is a prerequisite for the ﬁnding of the exis-
tence of a dispute.

   27 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. 87, para. 38.

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783       nuclear arms and disarmament (diss. op. robinson)

   33. The discussion in paragraph 104 of the Application of the CERD as
to whether a press release was brought to Russia’s attention is cited by
the majority as evidence that previous decisions set down awareness as a
condition of ﬁnding the existence of a dispute. The Court, in para-
graph 104, does not make clear the signiﬁcance to be attached to this
statement. It is expressed in terms that show that it is nothing more than
a simple statement of fact, which does not expressly or impliedly set out
an additional limb for the legal test for the ﬁnding of a dispute. Again,
the Court’s statement must be seen in the context of the particular facts
of the case: whether Russia was truly a party to the dispute, or whether
Georgia’s grievances lay elsewhere, and whether the dispute concerned
the interpretation and application of the CERD. In any event, the Court
dismissed the press release as having no legal signiﬁcance in the determi-
nation of the dispute.

   34. An inescapable comment on the four citations taken from Applica-
tion of the CERD and Alleged Violations in paragraph 38 is that, surely, if
the Court intended to set up awareness as a criterion for determining the
existence of a dispute, it would have spent much more time examining
and explaining the basis and rationale for its approach, including looking
at its case law. There would have been no need for the Court to introduce
an additional limb of the test in such an indirect and non-transparent
manner.

  35. The paragraphs relied upon by the majority as establishing aware-
ness as a criterion of a dispute should be contrasted with the establish-
ment of an “awareness” or “knowledge” test in other decisions of the
Court, and the care the Court takes in setting up a test of this nature. For
example, in the Bosnia Genocide case, the Court stated:

         “But whatever the reply to this question, there is no doubt that the
      conduct of an organ or a person furnishing aid or assistance to a
      perpetrator of the crime of genocide cannot be treated as complicity
      in genocide unless at the least that organ or person acted knowingly,
      that is to say, in particular, was aware of the speciﬁc intent (dolus
      specialis) of the principal perpetrator. 28”

   28 Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
2007 (I), p. 218, para. 421.

235

784       nuclear arms and disarmament (diss. op. robinson)

Even though the element of knowledge or awareness is necessarily a part
of complicity in genocide, it is nonetheless noteworthy how assiduously
and explicitly the Court approaches the construction of a test which con-
tains the criterion of awareness.

   36. Moreover, if the three passages in Application of the CERD were
intended to set up an additional limb of the test for the existence of a
dispute, it is strange that they were not cited in paragraph 73 of Alleged
Violations. This is all the more peculiar as passages from Application of
the CERD were cited ﬁve times in the treatment of Colombia’s second
preliminary objection as authority for various other propositions in rela-
tion to the ﬁnding of a dispute.

   37. Signiﬁcantly, in Section II (6), where the Court did ﬁnd that the
evidence established the existence of a dispute between Russia and Geor-
gia, there is not a single reference to Russia’s awareness of Georgia’s
opposing views. The Court was content to conclude that the exchanges
showed that there was a dispute between the two countries about Russia’s
performance of its obligations under CERD. In fact, the Court continued
to be most concerned about the parties to the dispute and whether or not
the dispute was about the interpretation and application of CERD 29. It is
also noteworthy that, in the many instances in which the Court dis-
counted the documents and exchanges as having any legal value, it did so
without any reliance on Russia’s lack of awareness, including in relation
to the documents cited in paragraphs 61, 87 and 104 30. What this shows
is that the reference to awareness or knowledge in those three instances is
nothing more than a mere happenstance, similar to the references to
awareness and understanding in paragraph 73 of Alleged Violations. The
irresistible conclusion in the analysis of the four cited passages is that the
majority has confused the incidental with the essential.

   38. It is indeed striking that among the many cases in the Court’s juris-
prudence on the existence of a dispute the majority has only been able to
cite two cases in support of its position, one of which — Application of the
CERD — is of limited value as a precedent given the peculiarities of Arti-

   29 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. 120, para. 113.
   30 Ibid., paras. 62, 89 and 104.

236

785      nuclear arms and disarmament (diss. op. robinson)

cle 22 of the CERD, the other — Alleged Violations — clearly wrongly
construed by the majority, and both of which were handed down in the
last six years. Implicit in these citations — from 2011 and 2016 — is an
acceptance that the jurisprudence prior to April 2011 does not support
the majority’s position. In reaching this conclusion, it should be recalled
that the passages cited by the majority do not contain references to prior
jurisprudence because they are, themselves, no more than factual state-
ments.

  39. In Application of the CERD, the Court importantly conﬁrmed that
the ﬁnding of a dispute is a matter of substance and not of form (as the
Judgment notes at paragraph 35). This is consistent with the pragmatic,
ﬂexible approach that has already been discussed in the context of former
jurisprudence. It follows that the Court’s case law has eschewed a formal
approach, including suggestions that formalities are a precondition of the
existence of a dispute, such as notice of the intention to ﬁle a case, formal
diplomatic protest and negotiations (unless speciﬁcally required by the
optional declaration) (see paragraph 35 of the Judgment) and any speciﬁc
mental element.

   40. On the basis of the examination of the jurisprudence set out above,
it is clear that:
(1) the development of the Court’s case law in this area has been linear
    in the stress that it has placed on objectivity, ﬂexibility and substance
    over form; whether or not a dispute exists is a matter for objective
    determination by the Court on the basis of the evidence before it;

(2) the enquiry, which is empirical and pragmatic, is focused on whether
    or not the States concerned have shown themselves as holding oppo-
    site views, i.e., whether the evidence reveals a diﬀerence of views,
    regarding the performance or non-performance of an international
    obligation;

(3) the positive opposition that is required by case law does not have to
    be manifested in a formal manner, for example, that the positions be
    set out in a diplomatic Note. Further, there is no need for notice and/
    or response. The opposition of positions may be evidenced by a
    course of conduct and evidence of the parties’ attitudes, and this is
    the enquiry that the Court must undertake. There is no particular way
    in which a claim must be made. Moreover, the case law establishes
    that the requirement that a dispute exist is not intended to set a high
    threshold for the Court’s exercise of its jurisdiction, a conclusion that

237

786        nuclear arms and disarmament (diss. op. robinson)

      is entirely consistent with the role of the Court as described in
      Section II;

(4) properly seen, therefore, awareness may be conﬁrmatory of positive
    opposition of views, but it is not, as paragraph 38 suggests, a prereq-
    uisite for, nor decisive in determining the existence of a dispute.

               V. The Date at which a Dispute Must Exist

   41. Another conundrum raised by the Judgment relates to the date at
which the dispute must exist. Paragraph 39 reads, “[i]n principle, the date
for determining the existence of a dispute is the date on which the appli-
cation is submitted to the Court”. Similar formulations with the words
“in principle” are to be found in cases cited in the same paragraph. How-
ever, the plain meaning of the sentence beginning with “in principle” is
that it admits of the possibility that the date at which the dispute is deter-
mined may be a date other than the date on which the Application was
submitted to the Court, i.e., that post-Application evidence may be deter-
minative of the existence of a dispute rather than simply conﬁrmatory as
is stated in paragraph 42. Consequently, the entire analysis in para-
graphs 39 and 40 fails to acknowledge the nuance and ﬂexibility that is
denoted by the phrase “in principle”.
   42. That post-Application evidence may be determinative of the
existence of a dispute is entirely consistent with the ﬂexible, pragmatic
approach that is the hallmark of the Court’s jurisprudence on this
question.
   43. Paragraph 39 cites two cases in support of its statement that —“[i]
n principle, the date for determining the existence of a dispute is the date
on which the application is submitted to the Court” — Alleged Violations
and Application of the CERD. The relevant paragraphs of both cases cite
Questions of Interpretation and Application of the 1971 Montreal Conven-
tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jama-
hiriya v. United Kingdom) 31 and Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Inci-
dent at Lockerbie (Libyan Arab Jamahiriya v. United States of America) 32.
The cited paragraphs from these cases begin: “Libya furthermore dr[ew]
the Court’s attention to the principle that ‘[t]he critical date for determin-
   31 Questions of Interpretation and Application of the 1971 Montreal Convention arising

from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preli-
minary Objections, Judgment, I.C.J. Reports 1998, pp. 25-26, paras. 43-45.
   32 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.

238

787         nuclear arms and disarmament (diss. op. robinson)

ing the admissibility of an application is the date on which it is ﬁled’” (my
emphasis) and reﬂect the Court’s conclusion that it would uphold Libya’s
submission in this regard. The Court concluded that “[t]he date, 3 March
1992, on which Libya ﬁled its Application, is in fact the only relevant date
for determining the admissibility of the Application” 33. It may be that the
diﬃculty arising from the phrase “in principle” could be traced to Libya’s
reference to “the principle” that the critical date was the date on which
the Application was ﬁled. The two phrases are, of course, totally diﬀerent
in meaning.

   44. In paragraph 50, the majority rejected the Marshall Islands’ con-
tention that the Court had, in prior cases, relied upon statements made by
the parties during proceedings as evidence of the existence of a dispute.
The majority discussed the three cases cited by the Marshall Islands in
support of its contentions: Certain Property (Liechtenstein v. Germany),
Preliminary Objections, Judgment, I.C.J. Reports 2005; Land and Mari-
time Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998; and Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judg-
ment, I.C.J. Reports 1996 (II). However, the majority’s analysis of these
three cases is too categorical and does not allow for the ﬂexibility that the
Court has given itself in this regard. These cases show that the Court has
aﬀorded signiﬁcant weight to statements made during proceedings in its
determination of whether or not a dispute exists, and, at times, did so, to
the exclusion of other evidence.

   45. In Certain Property, the Court’s analysis indicates that it relied pri-
marily on the positions taken by the parties before the Court in ﬁnding a
dispute. At paragraph 50, the majority states that in Certain Property
“the existence of the dispute was clearly referenced by bilateral exchanges
between the parties prior to the date of the application”. However, Ger-
many submitted a preliminary objection on the basis that there was no
dispute between the parties. While Liechtenstein and Germany character-
ized the subject of the dispute diﬀerently, Germany’s preferred character-
ization suggested that it was not a true party to the dispute and thus that
there was no dispute between the parties.

  46. After setting out the positions of the parties, the Court proceeded
to note:
       “[t]he Court thus ﬁnds that in the present proceedings complaints of
       fact and law formulated by Liechtenstein against Germany are denied
  33   Op. cit. supra note 32, p. 130, para. 43.

239

788       nuclear arms and disarmament (diss. op. robinson)

      by the latter. In conformity with well-established jurisprudence . . .
      the Court concludes that ‘[b]y virtue of this denial, there is a legal
      dispute’ between Liechtenstein and Germany (East Timor (Portu-
      gal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22;
      Application of the Convention on the Prevention and Punishment of the
      Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports
      1996 (II), p. 615, para. 29).” 34
The Court then added that pre-Application consultations and exchanges
had “evidentiary value” in support of a ﬁnding of positive opposition.
The Court therefore relied on Germany’s denial during the proceedings as
determinative of the existence of a dispute and merely had recourse to the
pre-Application consultations and exchanges as supporting evidence.

  47. In Land and Maritime Boundary, Nigeria’s submission was that
there was no dispute as such throughout the length of the boundary and
therefore Cameroon’s request to deﬁnitively settle the boundary was
inadmissible (more speciﬁcally that there was no dispute, subject, within
Lake Chad, to the question of the title over Darak and adjacent islands,
and without prejudice to the title over the Bakassi Peninsula) 35. The
Court concluded that in the oral proceedings it had become clear that
there was also a dispute over the boundary at the village of Tipsan 36.

   48. The Court noted that Nigeria had not indicated whether or not it
agreed with Cameroon’s position on the course of the boundary or its
legal basis. In reaching this conclusion, the Court relied particularly on
Nigeria’s response to a question posed by a Member of the Court. The
Court decided that, while Nigeria did not have to advance arguments per-
taining to the merits, “[the Court] cannot decline to examine the submis-
sion of Cameroon on the ground that there is no dispute between the two
States” 37. While it is true, as stated in paragraph 50, that the Court was
concerned with the scope of the dispute (i.e., the extent to which the
boundary was in dispute between the parties) 38, the Court did examine
the submissions of the parties and their positions before the Court in
determining that Nigeria had not indicated its agreement, and thus that it
could not uphold Nigeria’s objection.

   34 Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment,

I.C.J. Reports 2005, p. 19, para. 25.
   35 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),

Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 313-314, 316.
   36 Ibid., p. 313, para. 85.
   37 Ibid., p. 317, para. 93.
   38 The Court’s examination of materials showed that there was a dispute “at least as

regards the legal bases of the boundary”. The Court was not able to determine “the exact
scope of the dispute”; ibid.

240

789       nuclear arms and disarmament (diss. op. robinson)

   49. Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) is, per-
haps, the strongest case in support of the position taken by the Marshall
Islands because the only evidence on which the Court relied in relation to
the existence of a dispute was Yugoslavia’s denial of Bosnia and Herze-
govina’s allegations during the proceedings: “that, by reason of the rejec-
tion by Yugoslavia of the complaints formulated against it by Bosnia and
Herzegovina, ‘there is a legal dispute’ between them (East Timor (Portu-
gal v. Australia), I.C.J. Reports 1995, p. 100, para. 22)” 39. The majority’s
attempt to distinguish this case is far from satisfactory.

  50. The Court’s approach to this question has been less deﬁnitive and
uncompromising than the majority would like to suggest. The Court has
given itself room to aﬀord signiﬁcant weight to statements made during
the proceedings, particularly the denial of allegations by the Respondent,
not just to conﬁrm but to establish a dispute.

   51. I note that the majority has advanced the view that: “[i]f the Court
had jurisdiction with regard to disputes resulting from exchanges in the
proceedings before it, a respondent would be deprived of the opportunity
to react before the institution of proceedings to the claim made against its
own conduct” 40. This appears to be nothing more than a reﬂection of the
majority’s doctrinal attachment to the awareness criterion. It is inconsis-
tent with the case law that notiﬁcation of a dispute is not required. A
respondent’s opportunity to react is more properly addressed as a ques-
tion of procedural due process rather than as an element of the dispute
criterion. If a party is embarrassed by hearing for the ﬁrst time, through
the commencement of Court proceedings, a claim against it, it is surely
open to the Court to address that matter by recourse to the rules of
procedure.

      VI. The Principle of the Sound Administration of Justice

   52. Another reason for rejecting the majority decision is that it mili-
tates against the sound administration of justice, a principle that the
Court has emphasized on more than one occasion. In Mavrommatis, the
PCIJ held:

        “Even if the grounds on which the institution of proceedings was
      based were defective for the reason stated, this would not be an adequate
   39 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, para. 29.
   40 Paragraph 40 of the Judgment.

241

790           nuclear arms and disarmament (diss. op. robinson)

         reason for the dismissal of the applicant’s suit. The Court, whose juris-
         diction is international, is not bound to attach to matters of form the
         same degree of importance which they might possess in municipal law.
         Even, therefore, if the application were premature because the Treaty
         of Lausanne had not yet been ratiﬁed, this circumstance would now be
         covered by the subsequent deposit of the necessary ratiﬁcations.” 41
  53. This dictum is in keeping with the rejection of formalism in deter-
mining access to international justice, as discussed throughout the opin-
ion. It is a principle that promotes judicial economy, and thus the sound
administration of justice. In Upper Silesia, in considering whether there
was a “diﬀerence of opinion” for the purposes of Article 23 of the Geneva
Convention (the 1922 Convention between Germany and Poland relating
to Upper Silesia), the PCIJ held:

           “Even if, under Article 23, the existence of a deﬁnite dispute were
         necessary, this condition could at any time be fulﬁlled by means of
         unilateral action on the part of the applicant Party. And the Court
         cannot allow itself to be hampered by a mere defect of form, the
         removal of which depends solely on the Party concerned.” 42
   54. This principle was also cited by the Court in the Paramilitary
Activities case, refusing to reject Nicaragua’s claim when it could remedy
a defect unilaterally (to have expressly invoked a treaty in its negotia-
tions) and reﬁle the case 43. The Court continued as follows:

           “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. As the Permanent Court observed, ‘the Court cannot allow itself
         to be hampered by a mere defect of form, the removal of which
         depends solely on the party concerned.’ (Certain German Interests in
         Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J.,
         Series A, No. 6, p. 14)”.
 55. Further, in Croatia v. Serbia, the Court cited the passage from
Mavrommatis and held that:

           “What matters is that, at the latest by the date when the Court
         decides on its jurisdiction, the applicant must be entitled, if it so
   41    Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 34.
   42 Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,

P.C.I.J., Series A, No. 6, p. 14.
   43 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,
pp. 427-429, paras. 81-83.

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791         nuclear arms and disarmament (diss. op. robinson)

        wishes, to bring fresh proceedings in which the initially unmet condi-
        tion would be fulﬁlled. In such a situation, it is not in the interests of
        the sound administration of justice to compel the applicant to begin
        the proceedings anew — or to initiate fresh proceedings — and it is
        preferable, except in special circumstances, to conclude that the con-
        dition has, from that point on, been fulﬁlled.” 44
The Court spoke against an approach that would lead to, what it termed
the “needless proliferation of proceedings” 45 or what Judge Crawford in
his dissent calls a “circularity of procedure” 46. An odd result of the major-
ity Judgment is that, given the basis on which the claim has been dis-
missed, the Marshall Islands could, in theory, ﬁle another Application
against the Pakistan. Any objection based on lack of awareness of “oppo-
site views” could not be upheld. The “unmet condition” would have
already been remedied. The formal approach adopted by the majority
Judgment is incongruous with previous dicta on this point, and militates
against judicial economy and the sound administration of justice.

                                       VII. Facts

   56. The Marshall Islands argues that Pakistan is bound by a custom-
ary obligation to pursue in good faith and bring to a conclusion negotia-
tions leading to nuclear disarmament in all its aspects under strict
and eﬀective international control, and that, Pakistan’s conduct, in par-
ticular to quantitatively increase and qualitatively improve its nuclear
arsenal, breaches that obligation 47. Pakistan refutes the Marshall Islands’
claims.
   57. Pakistan argues that it has consistently pursued a policy of
“general, complete and veriﬁable disarmament, at appropriate
multilateral fora, based on the principles of universality and non-
discrimination under an eﬀective international control regime” 48.
On an objective analysis, the evidence put before the Court does not

  44 Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 441, para. 85.
  45 Ibid., p. 443, para. 89.
  46 See dissenting opinion of Judge Crawford in this case, paragraph 8.

   47  E.g., CR 2016/2, p. 13, para. 17 (deBrum).
   48  Counter-Memorial of Pakistan (CMP), p. 8, para. 2.2. For example, Pakistan points
to the fact that it voted in favour of UN General Assembly sessions on Draft resolutions
entitled “Follow-up to the Advisory Opinion of the International Court of Justice on the
Legality of the Threat or Use of Nuclear Weapons”, from 1997 to 2015. See also CMP, p. 8,
paras. 2.4.

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792          nuclear arms and disarmament (diss. op. robinson)

demonstrate positive opposition regarding the approach to negoti-
ations.
   58. However, the Parties have clearly distinguishable positions relating
to the build-up of Pakistan’s nuclear arsenal. The Marshall Islands details
evidence of what it describes as a “quantitative build-up and qualitative
improvement of [Pakistan’s] nuclear forces” 49, which, in the Marshall
Islands’ view, violates Pakistan’s customary obligation to pursue in good
faith and bring to a conclusion negotiations leading to nuclear disarma-
ment 50. The Marshall Islands points to various factors in support of its
argument, for examples, presenting evidence that Pakistan’s arsenal has
grown from an estimated two nuclear warheads in 1998, to an estimated
100-120 nuclear warheads in 2013 51.

   59. Pakistan disputes that it is bound by a customary obligation, as
argued by the Marshall Islands, and that, in any case, its actions in respect
of its nuclear arsenal would breach any customary obligation: “Pakistan
submits that the RMI’s claims against Pakistan are manifestly without
legal merit or substance” 52.

  60. The substantiation of the Marshall Islands’ allegations is an issue
for the merits. However, the Marshall Islands’ claims, Pakistan’s conduct
and Pakistan’s denial are suﬃcient to eﬀect a dispute between the two
countries. The most important part of the obligation in that regard is that
States should pursue negotiations in good faith.

   49  Application of the Marshall Islands (AMI), p. 20, para. 53.
   50  On 26 September 2013, at the High-Level Meeting of the General Assembly on
Nuclear Disarmament, the Marshall Islands “urge[d] all nuclear-weapon-States to inten-
sify eﬀorts to address their responsibilities in moving towards an eﬀective and secure disar-
mament”. At the Second Conference on the Humanitarian Impact of Nuclear Weapons
in Nayarit, Mexico, 13-14 February 2014, at which Pakistan was present, the Marshall
Islands stated:

        “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 commencement and conclusion of such negotiations is required
        by legal obligation of nuclear disarmament resting upon each and every State under
        Article VI of the Non-Proliferation Treaty and customary international law.” Memo-
        rial of the Marshall Islands (MMI), p. 19, para. 45.

   51 AMI, para. 22. See also para. 27, where the MI quotes a physicist and analyst from

Princeton University, a member of the International Panel on Fissile Materials, who states
that Pakistan is “rapidly developing and expanding its nuclear arsenal”. See also, for
example, further evidence in Section II of the AMI.
   52   CMP, p. 14, para. 4.1.

244

793        nuclear arms and disarmament (diss. op. robinson)

                                 VIII. Conclusion

   61. The majority decision in this case represents a conspicuous aberra-
tion and an unwelcome deviation from the Court’s long-applied position
on this question. International law, like any other branch of law, is not
static and some of the greatest developments in history would not have
taken place but for the dynamism of law. But where current law can be
applied to serve the interests of the international community as a whole,
such a dramatic change is only warranted if there is a compelling consid-
eration in favour of doing so. Indeed such an approach is conﬁrmed by
the Court’s own holding that:
        “To the extent that the decisions contain ﬁndings of law, the Court
      will treat them as it treats all previous decisions: that is to say that,
      while those decisions are in no way binding on the Court, it will not
      depart from its settled jurisprudence unless it ﬁnds very particular
      reasons to do so.” 53

   62. The majority has advanced no such reasons. Its holding today has
placed an additional and unwarranted hurdle in the way of claims that
may proceed to be examined on the merits. In so doing, it has detracted
from the potential of the Court to play the role envisaged for it as a
standing body for the peaceful settlement of the disputes and through this
function, as an important contributor to the maintenance of international
peace and security. This conclusion is rendered even more telling by the
subject-matter of the dispute before us today.
   63. Seen in the light of the considerations set out in Sections I and II
of this opinion, one would be forgiven for concluding that, with this
Judgment, it is as though the Court has written the Foreword in a book
on its irrelevance to the role envisaged for it in the peaceful settlement of
disputes that implicate highly sensitive issues such as nuclear disarma-
ment.

                                                    (Signed) Patrick Robinson.

   53 Application of the Convention on the Prevention and Punishment of the Crime of Geno-

cide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 428,
para. 53.

245


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING RIGHTS OF
NATIONALS OF THE UNITED STATES

OF AMERICA IN MOROCCO
(FRANCE v. UNITED STATES OF AMERICA)
ORDER OF MARCH 31st, 1952

1952

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AUX DROITS
DES RESSORTISSANTS
DES ÉTATS-UNIS D’AMERIQUE

AU MAROC
(FRANCE c. ÉTATS-UNIS D’AMERIQUE)
ORDONNANCE DU 31 MARS 1952

This Order should be cited as follows :

“Case concerning rights of nationals of the United States
of America in Morocco, Order of March 31st, 1952:
I.C.J. Reports 1952, p. 22.”

La présente ordonnance doit étre citée comme suit :

« Affaire relative aux droits des ressortissants
des États-Unis d'Amérique au Maroc, Ordonnance du
31 mars 1952: C. I. J. Recueil 1952, p. 22.»

N° de vente: 86
Sales number

MARCH 31st, 1952

ORDER

CASE CONCERNING RIGHTS OF NATIONALS
OF THE UNITED STATES OF AMERICA
IN MOROCCO

(FRANCE v. UNITED STATES OF AMERICA)

AFFAIRE RELATIVE AUX DROITS DES
RESSORTISSANTS DES ETATS-UNIS D’AMERIQUE
AU MAROC

(FRANCE c. ETATS-UNIS D’AMERIQUE)

31 MARS 1952

ORDONNANCE
COUR INTERNATIONALE DE JUSTICE
1952

Le 3r mars
Rôle général

ANNÉE 1952 nu

31 mars 1952

AFFAIRE RELATIVE AUX DROITS
DES RESSORTISSANTS
DES ÉTATS-UNIS D’AMERIQUE

AU MAROC
(FRANCE c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE

Le Vice-Président de la Cour internationale de Justice, faisant
fonction de Président en la présente affaire,

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

vu la requête déposée au Greffe de la Cour le 28 octobre 1950,
par laquelle le Gouvernement de la République française a intro-
duit contre les États-Unis d'Amérique une instance relative aux
droits des ressortissants des États-Unis d'Amérique au Maroc,

vu l'ordonnance du 31 octobre 1951 fixant les délais pour la
présentation du contre-mémoire, de la réplique et de la duplique
en ladite affaire ;

Considérant que, par lettre du 28 mars 1952, l'ambassadeur des
États-Unis aux Pays-Bas a, au nom de son gouvernement, demandé
que la date d'expiration du délai fixé pour le dépôt de la duplique
soit reportée du II au 18 avril 1952 ;

4
ORDONN. DU 31 III 52 (RESSORTISSANTS DES É.-U. AU MAROC) 23

Considérant que, par télégramme du 29 mars 1952, l’agent du
Gouvernement de la République française, auquel la demande pré-
citée avait été communiquée, a fait savoir que son gouvernement
acceptait la prolongation demandée :

Fixe au 18 avril 1952 la date d’expiration du délai pour le dépôt
de la duplique du Gouvernement des États-Unis d'Amérique.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le trente et un mars mil neuf cent
cinquante-deux, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-
tivement au Gouvernement de la République française et au
Gouvernement des États-Unis d'Amérique.

Le Vice-Président,
(Signé) J. G. GUERRERO.

Le Greffier,
(Signé) E. HAMBRO.