                                                                          808

     DISSENTING OPINION OF JUDGE AD HOC BEDJAOUI

[Translation]

   Traditionally less formalistic jurisprudence — Reversal of jurisprudence —
Excessive formalism — Lack of flexibility — Loss of clarity —
Notification/“awareness” — Date of the existence of a dispute — Procedural
defects — Silence of the Respondent — Exchanges before the Court — Sui generis
nature of nuclear disputes — Obligation to negotiate and to achieve nuclear
disarmament — Objection not of an exclusively preliminary character —
Undesirable consequences of formalism — International community — Sound
administration of justice — Subjectivity.

                             table of contents

                                                                    Paragraphs

   I. Introduction                                                        1-6
  II. A Traditionally less Formalistic Jurisprudence                     7-22
 III. Notification/“Awareness”?                                         23-31
 IV. Date of the Existence of a Dispute                                 32-36
  V. Procedural Defects                                                 37-48
 VI. Proof by Inference. Proof by the Interpretation of
     Silence                                                            49-53
VII. Proof Provided by the Exchanges before the Court                   54-57
VIII. SUI GENERIS Nature of any Nuclear Dispute                         58-59
 IX. An Objection      not   of   an   Exclusively    Preliminary
     Character?                                                         60-61
  X. The Train of Undesirable Consequences of This Decision             62-83

                             I. Introduction

   1. The Court has declared that no dispute exists between the Marshall
Islands and Pakistan regarding the question of nuclear disarmament. In
so doing, it has spared the Respondent any independent review of its con-
duct. This is all the more regrettable since the Court’s formalistic reason-
ing pales into insigniﬁcance when compared not only to the fundamental
importance of the questions raised by the Applicant — the small matter

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of humanity’s survival — but also to the almost 100 years of jurispru-
dence of the Court, which has long shown itself to be pragmatic and open
to the world.

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   2. In the proceedings introduced by the Marshall Islands against Paki-
stan, the Court has reached the conclusion that it does not have jurisdic-
tion in the absence of a legal dispute between the Parties prior to the ﬁling
of the Application. According to its reasoning:
(a) the Marshall Islands and Pakistan do not have clearly opposing views
    as to the existence of an obligation under customary international law
    to negotiate with a view to nuclear disarmament at an early date, or
    as to the compliance of the Respondent’s conduct with the potential
    obligations incumbent upon it;
(b) the dispute should have existed on the date on which the proceedings
    were instituted by the Applicant, a cut-oﬀ date which renders irrele-
    vant the exchanges witnessed by the Court;
(c) the Court’s tendency to show ﬂexibility and pragmatism when faced
    with reparable procedural defects has no place in this case.

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   3. It has long been the practice of the Court to lay down the details of
its procedure for determining the existence of a justiciable dispute. It
repeated this practice just recently in the case concerning Alleged Viola-
tions of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nica-
ragua v. Colombia). Thus we know that the salient criterion is the making
of a claim by one party to which the other party is positively opposed. We
also know that the date to be taken into account in verifying the existence
of a clear opposition of views between the two parties is that on which the
application is submitted to the Court. Finally, we know that the existence
of a dispute is a matter for “objective” determination by the Court: the
matter is one of substance, not of form. Indeed, the Court itself summa-
rized its jurisprudence as follows, in the above-mentioned case:

       “50. The existence of a dispute between the parties is a condition
    of the Court’s jurisdiction. Such a dispute, according to the estab-
    lished case law of the Court, is ‘a disagreement on a point of law or
    fact, a conﬂict of legal views or of interests between two persons’
    (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
    Series A, No. 2, p. 11; see also Application of the International Con-
    vention on the Elimination of All Forms of Racial Discrimination

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(Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 84, para. 30). ‘It must be shown that the
claim of one party is positively opposed by the other.’ (South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328.) It does not matter
which one of them advances a claim and which one opposes it. What
matters is that ‘the two sides hold clearly opposite views concerning
the question of the performance or non-performance of certain’ inter-
national obligations (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 74).

   The Court recalls that ‘[w]hether there exists an international dis-
pute is a matter for objective determination’ by the Court (ibid.; see
also Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 442,
para. 46; Application of the International Convention on the Elimina-
tion of All Forms of Racial Discrimination (Georgia v. Russian Feder-
ation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I),
p. 84, para. 30; Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p. 476, para. 58). ‘The Court’s
determination must turn on an examination of the facts. The matter
is one of substance, not of form.’ (Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 84, para. 30.)
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
   52. In principle, the critical date for determining the existence of a
dispute is the date on which the application is submitted to the Court
(Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Pre-
liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30;
Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 1998, pp. 25-26, paras. 43-45; Questions of Interpreta-
tion 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).” (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. 50 and 52.)

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          nuclear arms and disarmament (diss. op. bedjaoui)                811

   4. Although the Court has always adhered to a standard general deﬁ-
nition of a legal dispute, it has not shown the same level of consistency in
respect of the criteria for determining the existence of that dispute. A
legal dispute continues to be deﬁned as a “clear difference of opinion or of
interests”, a “disagreement on a point of law or fact”, or a “conflict of legal
views or of interests”. This deﬁnition is self-explanatory: the emergence of
conﬂicting opinions, rights or interests setting two States at odds and
placing them in opposition to one another, gives rise to a justiciable legal
dispute within the meaning of Article 36, paragraph 2, of the Statute of
the Court.

   5. This uniformly calibrated deﬁnition having been established, how-
ever, the criteria for determining the existence of a dispute appear, espe-
cially in recent years, to be somewhat ambiguously applied. The most
signiﬁcant break from its jurisprudence can be seen in the Judgment of
1 April 2011 in the case between Georgia and the Russian Federation, in
which the Court conducted a detailed examination of the parties’
exchanges and identiﬁed an extremely narrow time frame for the dispute.
Although the Court formally concluded that it lacked jurisdiction on the
basis of an absence of negotiations between the parties — a condition
contained in the relevant compromissory clause — it was, however, the
restrictive approach adopted towards the criteria for determining the exis-
tence of a dispute which brought about that ﬁnding. In fact, the Court
ﬁrst precisely established the date on which the dispute arose, ﬁxing it as
9 August 2008, that is to say, three days before the institution of the pro-
ceedings (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) — the ﬁrst time in its history that it had conducted such an
exercise — and then declared that “it was only possible for the Parties to
be negotiating the matters in dispute . . . [in] the period during which the
Court found that a dispute capable of falling under CERD had arisen
between the Parties” (ibid., p. 135, para. 168).
   6. The Court continued — and even reinforced — this tendency in the
case concerning Questions relating to the Obligation to Prosecute or Extra-
dite, when it declined to hear one part of the case, relating to obligations
under customary international law, even though there was clearly a dis-
pute on this point on the date of delivery of the Court’s Judgment (Ques-
tions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), p. 445, para. 55; see also
Judge Abraham’s separate opinion in that case).

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          nuclear arms and disarmament (diss. op. bedjaoui)               812

         II. A Traditionally less Formalistic Jurisprudence

   7. The Court’s present approach, which pays a heavy price for a cer-
tain degree of formalism, could rightly be regarded as a move away from
its traditional jurisprudence.
   8. The latter clearly shows that the Court has maintained sight of the
fact that it is the “principal judicial organ” of the United Nations, at the
disposal of States for the settlement of their disputes. Since its establish-
ment, the Court has sought to carry out its mission while “keeping in
step” with the Organization, in order to remain faithful to its vocation of
promoting peace and harmony among States.
   9. In this respect, it has never considered itself to be inescapably bound
by a formalism which might prevent it from reaching the just and reason-
able solution that is desired. There was certainly good reason to praise
the Court’s clarity and its resourcefulness when it stated, in 1949, that it
considered the United Nations to possess “international personality”;
when it gave its opinion, in 1950, on the Competence of the General
Assembly for the Admission of a State to the United Nations; when it
expressed its view, in 1951, on Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide; and, ﬁnally, when it
stated in 1962 that, in its opinion, Certain Expenses incurred in the Congo
and by the United Nations Force in the Middle East constituted expendi-
ture of the Organization, to be borne by all Member States.
   10. On its ever calm and conﬁdent path in the service of the interna-
tional community, the Court would once again eloquently demonstrate,
with its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, just how much ﬁnesse and skill it could employ in order to sup-
port the international organization to which it belongs, as well as the inter-
national community as a whole, which it has an overriding duty to protect.
   11. While the eﬀective practice of States creates international custom,
the Court has also known exactly when to bear in mind that States in
breach of a legal principle will always do their utmost to reassure the inter-
national community that they are in fact merely applying that principle.
The Court thus interprets such an untruth, which is nothing more than the
homage that vice pays to virtue, as the expression of an opinio juris, since
even States which breach this principle recognize its existence.
   12. This secularization of the Court, in the noblest sense of the term, is
also apparent in the exercise of its contentious function. What stands out
for me in the Court’s 1970 Judgment in the Barcelona Traction case are its
obiter dicta concerning erga omnes obligations which are binding on
States and which therefore serve the international community as a whole.
And how could I fail to mention the resounding Judgments of 1984 and
1986 in the case between Nicaragua and the United States, in which the
Court broke away so spectacularly from any paralyzing formalism. Its
1986 Judgment on the merits is an academic handbook, better still, a
major “treatise of international customary law”, and an extremely useful
substitute for treaty law, when required.

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   13. Was it hoped to frustrate the Court’s primary goal of applying the
Charter to the subject of the non-use of force and self-defence? Such
eﬀorts were in vain. The Vandenberg reservation, invoked by the Respon-
dent, aimed to undermine the Court’s paths to the Charter, a multilateral
treaty, which, the Respondent argued, the Court could not interpret in
the absence of all the other parties to that instrument. The Court then
took pleasure in elegantly and convincingly overcoming the obstacle in its
path to deliver a judgment which was both beautifully constructed and a
model of legal soundness.
   14. Nor was the 1984 Judgment on jurisdiction and admissibility in that
Nicaragua case the damp squib that was feared. The solution was certainly
not to be found in the narrow conﬁnes of strict formalism. Making use of
its ability to enforce a dynamic and concrete vision of what is just and
reasonable, the Court acknowledged and conﬁrmed the validity of Nicara-
gua’s recognition of its compulsory jurisdiction by means of the optional
clause in 1929, in spite of the uncertainty that appeared to surround it.
   15. In short, the Court successfully avoided falling prisoner to the let-
ter of the Charter and the lacunae of international law. It gave that law
the vibrant colours of a true law of nations. Our Court, which nowadays
enjoys a rich heritage more prestigious than words can say, has the neces-
sary imagination to ensure that it always serves this enlightened form of
justice.
   16. Perhaps the Court did place some emphasis on maintaining a cer-
tain degree of what it considered worthwhile formalism at the end of the
twentieth century: in 1994, in the case between Libya and Chad concern-
ing the “Aouzou strip”, and in 1995, in the East Timor case. In the ﬁrst,
the Court strictly adhered to the 1955 Franco-Libyan Treaty, which
delimited the zone; in the second, it focused just as sharply on the absence
of the “indispensable party”.
   17. However, it cannot be argued that the Court made a deﬁnitive
move towards formalism in those cases, since its jurisprudence from the
same era also includes the 1992 Certain Phosphate Lands in Nauru case, in
which it threw oﬀ any shackles of that kind.
   18. This quick and simpliﬁed overview of the Court’s jurisprudence
since its establishment leaves me somewhat saddened at the impression
that might be left by today’s decision in the present case.

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  19. In my view, it is all the more vital that the Court should endeavour
to clarify how it determines the existence of a dispute, since this is a fun-
damental question on which both its jurisdiction and the exercise of its
jurisdiction directly depend. Indeed, the Court has often stated that:
    “[t]he Court, as a court of law, is called upon to resolve existing dis-
    putes between States. Thus the existence of a dispute is the primary

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    condition for the Court to exercise its judicial function.” (Nuclear
    Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
    pp. 270-271, para. 55, and Nuclear Tests (New Zealand v. France),
    Judgment, I.C.J. Reports 1974, p. 476, para. 58.)
   20. It thus seems to me absolutely essential for the Court to show
greater consistency when determining the criteria for establishing the exis-
tence of a dispute and when applying those criteria to each individual
case. No one would venture to question the Court’s power to ﬁx the
objective criteria for determining the existence of a justiciable dispute or
to apply those criteria to each particular case. The Court is perfectly enti-
tled — indeed, it is the essence of its judicial function — to apply those
criteria in either a strict or a ﬂexible manner, according to the merits of
the individual cases before it. But does it do so systematically? It does not
appear so to me. Being entirely at liberty to apply the criteria it has itself
identiﬁed, the Court is sometimes strict in its application and sometimes
ﬂexible, without fully justifying its choice; this creates a certain amount of
legal uncertainty for States and a certain level of confusion for readers,
none of them knowing why one case may beneﬁt from the Court’s under-
standing, when another cannot aspire to do so.

   21. This ﬁrst duty of consistency, while highly necessary, is not suﬃ-
cient. In my opinion, the Court must also guard against fossilization.
Being committed to the rational application of criteria does not preclude
simultaneously remaining open to changing global concerns. The Court
must therefore, on the one hand, ensure that it is keeping pace with its
times by listening carefully to the world’s dull clamour, and, on the other,
maintain consistency in its jurisprudence, which demonstrates the diﬃ-
culty of its mission. It is by no means a case of the Court accepting every
new idea. That is the last thing it would do. It is about knowing when and
how to limit, or, alternatively, to expand, the application of the criteria at
the root of the “Mavrommatis” and “South West Africa” Judgments, and,
above all, explaining each time why it is necessary to favour flexibility or
formalism in that particular case. The jurisprudence would thus be readily
understood.
   22. For the moment, however, the greatest danger remains excessive
formalism. Because in my view, the damage caused by the jurisprudence
it inspires is immense when, as is the case here, it combines with a juris-
prudence which is entirely unclear for the future. Moreover, no longer
knowing whether tomorrow the Court will apply stricter or more relaxed
criteria than today when determining the existence of a dispute does not
simply constitute a loss of clarity: it evidently increases the risk of the
arbitrary.

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          nuclear arms and disarmament (diss. op. bedjaoui)              815

                    III. Notification/“Awareness”?

   23. If we consider the question of the applicant’s “notification” of the
dispute to the respondent, it is clear from all of its traditional jurispru-
dence that the Court is genuinely reticent to make notiﬁcation a precondi-
tion for the institution of proceedings. But today we are stepping into
what is now a mineﬁeld. The clear skies that prevailed when the Court
consistently recalled that there is no principle or rule in international law
requiring the applicant to notify its claim to the respondent prior to ﬁling
its application are now ﬁlled with the menacing clouds of the 2011 deci-
sion — even though that was based on an optional compromissory
clause — creating uncertainty and obscuring the general view.

  24. It should ﬁrst be noted that the Court rightly rejected Pakistan’s
argument that there is no dispute because, amongst other things, there
was no notiﬁcation and there have been no relevant negotiations. Indeed,
the Court states that:
    (a) “[p]rior negotiations are not required where the Court has been
        seised on the basis of declarations made pursuant to Article 36,
        paragraph 2, of its Statute, unless one of the relevant declarations
        so provides”; and
    (b) “‘although a formal diplomatic protest may be an important step
        to bring a claim of one party to the attention of the other, such
        a formal protest is not a necessary condition’ for the existence of
        a dispute” (Judgment, para. 35).
   25. We are thus perfectly assured that international law does not
require prior negotiations or advance notiﬁcation. Unfortunately, how-
ever, neither Pakistan nor the Court stopped there.
   Leaving this legal territory and turning to the facts, Pakistan observes
that if these prior negotiations and notiﬁcation had taken place, they
would at least have provided material proof that the dispute exists. That
is entirely true, and there is nothing to prevent the Court from acknowl-
edging that Pakistan is factually correct, but this does not in any way
alter the legal situation, which is characterized by the absence of any pre-
condition for the institution of proceedings by the Marshall Islands.
   For its part, the Court added the following remark, which in itself
appears problematic:
       “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.” (Ibid., para. 38; emphasis added.)

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   26. I would point out that the Court thus seems to establish a direct
and — it would appear — automatic correlation between awareness of an
opposition of views and the existence of a dispute. With this paragraph,
the Court seems to suggest that it is not imposing an additional condi-
tion. The “awareness” element is nothing more than a simple observation
that is inevitably inferred from the evidence. Yet the Court is not content
to mention this purported causal link in paragraph 38 only; it also refers
to it on two further occasions, in paragraphs 48 and 52 of its decision. I
would also point out that, in the Court’s reasoning, what is essential is the
fact that the respondent should “be aware”. The Court has not attempted
to explain how or from what source the respondent should obtain its
information. It is careful not to state that the respondent must be informed
by the applicant, which would directly revive the concept of “notification”
as a precondition for the existence of a dispute. Yet nor does it exclude
the possibility of this information coming from the applicant! These two
things — “no prior notification (by the applicant), but prior knowledge (by
the respondent)” — can only ever form a diﬃcult and uncertain partner-
ship.
   27. Whether we like it or not, today’s Judgment establishes the “aware-
ness” of the presence of opposing views as a sort of precondition. This
new requirement is so vaguely and imprecisely deﬁned that it is open to
all manner of interpretations. Are we not thus witnessing the resurrection
by degrees of the “notification” concept? With today’s decision, we seem
to be agreeing to reduce the most salient features of the formal and
quasi-notarial notiﬁcation process by simply requiring proof that
the respondent was “aware” or had somehow become conscious of the
existence of the dispute. I ﬁnd it diﬃcult to understand why, in its reason-
ing, the Court has conceived of something which inevitably and regretta-
bly becomes a kind of precondition that forms an obstacle to its
jurisdiction.
   28. However, if we accept the existence of this additional precondition,
then why not apply it correctly? How can it be argued that Pakistan was
not “aware” of the Marshall Islands’ anti-nuclear views in opposition to
its own nuclear conduct? Did the Respondent not know at that time that
the Applicant had on 67 occasions suﬀered the radioactive fall-out from
weapons testing on its islands by the United States; that, on account of
that fact, it had instituted numerous legal proceedings in the United
States; and that it had made its 2013 and 2014 statements at international
events which were open to all?
   29. Of course, neither the 2013 nor the 2014 statement of the Marshall
Islands condemned Pakistan by name. They were aimed at all States pos-
sessing nuclear weapons, without distinction, as everyone knows. They
did not, however, exclude Pakistan. Was it really reasonable to think that
the Marshall Islands had omitted Pakistan from its general statement
against nuclear States? An exclusion of this nature and importance can-
not be the result of such a hazardous assumption.

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   30. To make a show of consistency, one could of course argue here
that this “awareness” can be obtained by means other than notiﬁcation.
But that would involve becoming mired in the complexities of a painstak-
ing reasoning, to no avail. Extricating oneself from this diﬃculty would
mean resorting to the clear reinstatement of the “notification” concept.
And there would be little glory in worshipping today what was consigned
to the ﬂames yesterday.
   31. Furthermore, how can the Respondent’s level of “awareness” be
assessed? Will the International Court, the expert in law, now also be
required to become adept in psychology, so that it can probe the heart
and mind not of an individual, but of a State, the respondent? And how
could this unusual excursion into subjectivity be reconciled with the stated
“objective” search for the existence of a dispute? And yet, until recently
the Court had considered that “in determining whether a dispute exists or
not, ‘[t]he matter is one of substance, not of form’” (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).

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                IV. Date of the Existence of a Dispute

   32. In the present Judgment, the Court appears to follow its traditional
jurisprudence closely, according to which: “[i]n principle, the date for
determining the existence of a dispute is the date on which the application
is submitted to the Court” (para. 39).
   33. This was decided in particular by the Court in the case between
Georgia and the Russian Federation (Application of the International Con-
vention on the Elimination of All Forms of Racial Discrimination (Geor-
gia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 85, para. 30), in which it declared: “[t]he dispute must in prin-
ciple exist at the time the Application is submitted to the Court”.
   34. It seems to me, however, that in its traditional jurisprudence, the
Court has avoided obsessively worshipping the critical date, if we con-
sider that its decisions include the expressions “as a general rule” and “in
principle”, which relativize the scope and importance which this date
could have. It has thus examined the events before and after the critical
date — to which I shall return later — in order to qualify the situation
more precisely. In the case concerning Border and Transborder Armed
Actions (Nicaragua v. Honduras), when considering certain conditions
posed for the admissibility of the Application, in that instance the one
relating to the holding of negotiations, it decided that:
    “[t]he critical date for determining the admissibility of an application
    is the date on which it is ﬁled (cf. South West Africa, Preliminary

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         nuclear arms and disarmament (diss. op. bedjaoui)              818

    Objections, I.C.J. Reports 1962, p. 344). 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 Parties, over a period prior to that date, and
    indeed during the subsequent period.” (Border and Transborder Armed
    Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
    Judgment, I.C.J. Reports 1988, p. 95, para. 66.)
   35. Thus, without changing or dismissing the concept of the critical
date, the Court sensibly showed itself to be open to examining subsequent
situations or events, particularly in order to “conﬁrm” the existence of the
dispute on the date proceedings were instituted (paragraph 40 of the pres-
ent Judgment). This can only be applauded. Yet, after recalling its tradi-
tional jurisprudence, the Court states that:
    “neither the application nor the parties’ subsequent conduct and
    statements made during the judicial proceedings can enable the Court
    to ﬁnd that the condition of the existence of a dispute has been ful-
    ﬁlled in the same proceedings” (ibid.).
   36. Over and above this reversal on what are ﬂimsy grounds, the
Court’s practical approach in relation to the critical date seems risky to
me: as indicated above, it has refused, without convincing explanation, to
take account of the evidence which arose after the date on which the pro-
ceedings were instituted and which attested to the existence of a dispute.
In so doing, it establishes as an absolute dogma a solution that runs
counter to its traditional approach, which was characterized by great ﬂex-
ibility, as reﬂected in its statement that the dispute must only “in princi-
ple” exist on the date that proceedings are instituted.

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                        V. Procedural Defects

  37. Today’s decision by the Court that it does not have jurisdiction on
the grounds of the supposed absence of a dispute between the Parties is,
in my view, all the more unwarranted in that it moves away from the
Court’s traditional legal philosophy in the area described below. Indeed,
in its aim of serving the international community and fostering peace
between nations, the Court has always taken care to avoid becoming
focused on procedural defects which appear to it to be reparable. In so
doing, it has shown understanding, allowing for a touch of ﬂexibility in
order to deliver justice that is more accessible, more open and more pres-
ent. It has always rejected the simplistic and unhelpful solution of sending
the parties away, leaving to them the task, and the trouble, of repairing
the formal defects which have been identiﬁed and then returning to the
Court, if they are still in a position to do so.

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          nuclear arms and disarmament (diss. op. bedjaoui)              819

  38. This traditionally liberal jurisprudence dates back many years; it
was formed in the days of the Permanent Court of International Justice.
In the Mavrommatis Palestine Concessions case, in which the Applicant
ﬁled its Application several months before the Treaty of Lausanne grant-
ing it access to the Permanent Court entered into force, the Court
observed the following:
    “it would always have been possible for the applicant to re-submit his
    application in the same terms after the coming into force of the Treaty
    of Lausanne, and in that case, the argument in question could not
    have been advanced. Even if the grounds on which the institution of
    proceedings was based were defective for the reason stated, this would
    not be an adequate reason for the dismissal of the applicant’s suit.
    The Court, whose jurisdiction is international, is not bound to attach
    to matters of form the same degree of importance which they might
    possess in municipal law. Even . . . if the application were prema-
    ture . . . this circumstance would now be covered by the subsequent
    deposit of the necessary ratiﬁcations.” (Mavrommatis Palestine
    Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)
   39. The Permanent Court adhered to this logical and reasonable juris-
prudence the following year, clearly and concisely stating that it “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).
   40. The present Court has been wise enough not to depart from this
liberal jurisprudence by becoming attached to simple procedural defects
(Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objec-
tions, Judgment, I.C.J. Reports 1963, p. 28). In the case concerning Mili-
tary and Paramilitary Activities in and against Nicaragua, it showed how
absurd it would be to require the Applicant to return to the Court after
duly rectifying a procedural ﬂaw: “[i]t would make no sense to require
Nicaragua now to institute fresh proceedings based on the Treaty [of
Friendship, Commerce and Navigation of 1956], which it would be fully
entitled to do” (Military and Paramilitary Activities in and against Nicara-
gua (Nicaragua v. United States of America), Jurisdiction and Admissibil-
ity, Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83). It also referred
to the jurisprudence of the Permanent Court of International Justice con-
cerning Certain German Interests in Polish Upper Silesia, which I have just
cited.
   41. The Court would stand by this perfectly consistent jurisprudence on
a further occasion, subsequently reiterating that it “could not set aside its
jurisdiction . . . inasmuch as Bosnia and Herzegovina might at any time ﬁle
a new application, identical to the present one, which would be unassailable
in this respect” (Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Pre-
liminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 614, para. 26).

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          nuclear arms and disarmament (diss. op. bedjaoui)               820

   42. Similarly, in the Croatia v. Serbia case, although Serbia did not
become a party to the Statute of the Court until several months after the
initiation of proceedings against it by Croatia, the Court did not penalize
the premature character of the Application. It indicated that the deﬁ-
ciency on this occasion related to the Respondent’s standing to partici-
pate in proceedings before the Court, that is to say to a “fundamental
question”. Nevertheless, even in this instance, the Court refused to see its
jurisdiction compromised by a reparable procedural defect (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). The Court was right to recall that:
    “like its predecessor, [it] has also shown realism and ﬂexibility in cer-
    tain situations in which the conditions governing the Court’s jurisdic-
    tion were not fully satisﬁed when proceedings were initiated but were
    subsequently satisﬁed, before the Court ruled on its jurisdiction”
    (ibid., p. 438, para. 81).
  43. In the Croatia v. Serbia case, there is no doubt in my mind that the
Court made the correct decision by freeing itself from any excessive for-
malism and pragmatically pursuing the goal of the sound administration
of justice:
    “[w]hat matters is that, at the latest by the date when the Court
    decides on its jurisdiction, the applicant must be entitled, if it so
    wishes, to bring fresh proceedings in which the initially unmet 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.” (Ibid., p. 441, para. 85.)
   44. Thus, whether it is the applicant or the respondent, whether it is a
case of proceedings being instituted prematurely or of accessing the Court
too early, the Court has consistently and legitimately taken care to avoid
allowing its jurisdiction to lie fallow because of a wisp of straw or a tuft
of wild grass, so easily removed at any stage. As a result, it has created
sound jurisprudence which has stood the test of time and demonstrated
its ﬂawless consistency over a period of almost 90 years. In addition, the
decisions in question relate to particularly fundamental issues, concerning
either the jurisdiction of the Court itself, or the access to the Court of one
of the two parties. It is this jurisprudence that the 2011 Judgment started
to destroy, with the deathblow being delivered by the Belgium v. Senegal
case.
   45. In the present proceedings, the Court has once again dispensed
with its traditional jurisprudence, despite the latter’s wisdom. The state-
ments made by the Marshall Islands in 2013 and 2014 were addressed to
the entire world and in circumstances which make me question, on the
one hand, the Court’s analysis, which ﬁnds that neither statement men-

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          nuclear arms and disarmament (diss. op. bedjaoui)              821

tions breaches by Pakistan of its obligations under customary law and, on
the other, the good faith of a Respondent which claims to be unaware of
those statements.
   46. While the Marshall Islands’ statement of 26 September 2013 may
seem quite general, that of 13 February 2014 in my view crystallized the
dispute and constituted a complaint by the Marshall Islands against the
conduct of Pakistan, which, although not mentioned by name, is undoubt-
edly one of the nations at which the statement is aimed, since, like those
nations, it possesses nuclear weapons. As regards the “very general con-
tent” and “context” to which the Court refers in order to demonstrate
that the 13 February 2014 statement is insuﬃcient, I can only wonder
about the validity of these vaguely deﬁned criteria which will have unfore-
seeable consequences for the future. I am all the more inclined to take
account of those statements, or at least of the second, since the Court has
often been careful not to impose excessively narrow criteria in its juris-
prudence for determining the existence of a dispute. Indeed, I believe the
Court would have been better advised to avoid such formalism.
   47. I lament the fact that the majority of the Court considered those
statements insuﬃcient to crystallize the existence of a legal dispute. All
the Marshall Islands needs to do tomorrow is to send a simple Note Ver-
bale to the Respondent with a few lines expressing its opposition to the
latter’s nuclear policy, in order to be able to resubmit the then formalized
dispute to the Court. The question even arises as to whether, in view of
the statements made before the Court, it would be necessary to transmit
such a Note Verbale. It was neither coherent nor judicious for the Court
to focus on easily reparable procedural defects, when it has long dealt
with these with a welcome degree of ﬂexibility. It is sinking, together with
the international community, into an abyss of unwelcome and artiﬁcial
rigidity.
   48. In this case, which the Court is so prematurely and regrettably bring-
ing to an end today, what critical obstacle could have prevented it from
bearing with the belated nature of the Respondent’s opposition, since the
Marshall Islands could always resubmit its Application to the Court?

                                       *
                                   *       *

  VI. Proof by Inference. Proof by the Interpretation of Silence

   49. Contrary to the approach followed in this case, the Court has on
other occasions demonstrated ﬂexibility and common sense, turning a
respondent’s silence or failure to respond to good account and even pro-
ceeding by simple deduction, in order to conclude that a dispute exists.
That puts the Court’s methods of analysis and formalism at opposite
ends of the spectrum, as is clearly conﬁrmed by certain aspects of its tra-
ditional jurisprudence.

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          nuclear arms and disarmament (diss. op. bedjaoui)                822

  50. For instance, in its 1988 Advisory Opinion on the Applicability of
the Obligation to Arbitrate, the Court interpreted the failure to respond of
one party to a treaty as a rejection of another party’s complaint, and thus
as an opposition of views and proof of the dispute’s existence:

     “where one party to a treaty protests against the behaviour or a deci-
     sion of another party, and claims that such behaviour or decision
     constitutes a breach of the treaty, the mere fact that the party accused
     does not advance any argument to justify its conduct under interna-
     tional law does not prevent the opposing attitudes of the parties from
     giving rise to a dispute concerning the interpretation or application
     of the treaty” (Applicability of the Obligation to Arbitrate under Sec-
     tion 21 of the United Nations Headquarters Agreement of 26 June
     1947, Advisory Opinion, I.C.J. Reports 1988, p. 28, para. 38).

   51. In its pursuit of common sense, the Court has gone a step further,
by not excluding the use of deduction from its methods of analysis: “[i]n
the determination of the existence of a dispute . . . the position or the
attitude of a party can be established by inference” (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi-
nary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89).
   52. The Court appeared to take the same line in the Georgia v. Russian
Federation case, when it declared that “the existence of a dispute may be
inferred from the failure of a State to respond to a claim in circumstances
where a response is called for” (Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011 (I), p. 84, para. 30). But that was doubtless just a dream . . .

   53. And in its present Judgment, the Court sweeps aside its traditional
jurisprudence regarding the interpretation of a respondent’s silence in the
face of a claim made by the applicant in an international arena, taking
the view that the 13 February 2014 statement, in which the Marshall
Islands accused States possessing nuclear weapons of breaching their
international obligations, “[g]iven its very general content and the context
in which it was made, . . . did not call for a speciﬁc reaction by Pakistan”.
And thus, “[a]ccordingly, no opposition of views can be inferred from the
absence of any such reaction” (para. 47).

   It seems to me that the Court has ventured to substitute itself for Paki-
stan, in order to justify the latter’s silence in its place and, moreover, with
reasons that no one can be certain were shared by that State. The Court thus
seems to have had the privilege of uncovering Pakistan’s secret motivations
and does not hesitate to oﬀer them up, with great authority, to the reader.
                                        *
                                    *       *

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          nuclear arms and disarmament (diss. op. bedjaoui)              823

      VII. Proof Provided by the Exchanges before the Court

   54. As indicated above, the Court has made little eﬀort in the present
case to take full account of the circumstances following the ﬁling of the
Marshall Islands’ Application. And yet, it was perfectly acceptable to rely
on evidence arising subsequently, since the date of the evidence should in
no way be confused with the date of the event to be proved. The Court
seems to me to be perfectly entitled to take those later circumstances into
account, circumstances which may shed light on the existence of the dis-
pute at the time the Application was ﬁled. It had the freedom to do so in
this case, since the existence of a dispute was clearly apparent in the
respective positions expressed by the Parties before the Court in the
course of the proceedings. How can one conclude that a dispute does not
exist, when one Party is complaining before the Court that the other has
long been in breach of its international obligations, and the other Party
denies that its conduct constitutes a violation of those obligations? I
remain of the opinion that, in this case, the Parties’ exchanges during the
proceedings conﬁrm the existence of the dispute on the date those
proceedings were instituted. The exchanges that took place before
the Court did not create the dispute anew. They merely “confirmed” its
prior existence.
   55. The Court has taken account of parties’ exchanges during the pro-
ceedings in a number of cases, giving probative value to the statements
made before it and deducing from those statements that a dispute exists
(Certain Property (Liechtenstein v. Germany), Preliminary Objections,
Judgment, I.C.J. Reports 2005, pp. 18-19, para. 25; Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi-
nary Objections, Judgment, I.C.J. Reports 1998, pp. 316-317, para. 93;
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).
While, as the Court strives to demonstrate, the circumstances of these
cases are clearly diﬀerent to those of the present case, this should not
raise questions about the relevance of that jurisprudence: it illustrates the
openness that the Court has shown on numerous occasions in order bet-
ter to determine the parties’ positions.
   56. I see no compelling reason for the Court’s refusal to take account
of the Parties’ opposing views, which it witnessed for itself. Is this not a
regrettable way of departing from its own jurisprudence for no apparent
reason?
   57. Let us pause to consider the public delivery of the present decision.
Is it not clear for all to see that, on the date when the Court is ruling on
its jurisdiction, the dispute has taken on a more deﬁnite shape since the
start of the proceedings? Has the Marshall Islands ceased to assert that
Pakistan has breached and continues to be in breach of its obligation
under customary international law to negotiate with a view to nuclear
disarmament? Has Pakistan grown weary of contending that there is no

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          nuclear arms and disarmament (diss. op. bedjaoui)               824

relevant obligation incumbent upon it and that the facts as alleged by the
Marshall Islands do not constitute a violation of any kind?

                                       *
                                   *       *

         VIII. SUI GENERIS Nature of any Nuclear Dispute

   58. The Court has ﬁttingly opened its decision with a beautifully sim-
ple presentation of the general historical background to the international
community’s eﬀorts to bring about nuclear disarmament. It is just such a
context which in itself foreshadows and signals the potential existence of
a dispute. Indeed, the dispute submitted by the Marshall Islands, which
aims at nothing short of protecting the human race from permanent anni-
hilation by a terrifying weapon of mass destruction, should in itself have
sounded an alarm for the Court. The Court has declared that a twofold
obligation exists to negotiate and to achieve nuclear disarmament. It did
so 20 years ago, on the basis of a treaty — but also on that of customary
international law — which had itself declared the same thing 30 years
before. For 20 long years, it heard no more of that appeal. And then, one
day, a non-nuclear State wishes to ﬁnd out from another State, one that
possesses nuclear weapons, why this already considerable delay appears
to be continuing for even longer.
   59. This particular type of highly specific disagreement between a
non-nuclear State and a nuclear State regarding the abolition of nuclear
weapons is, in and of itself, the expression of a major dispute whose exis-
tence should ipso facto have been obvious to the Court. Because what is the
Marshall Islands seeking? That the international community and the
Court itself should know why an obligation identiﬁed by the Court
20 years ago has yet to be performed.

                                       *
                                   *       *

 IX. An Objection not of an Exclusively Preliminary Character?

   60. Furthermore, I would note that, even if the procedure followed in
the present case is not strictly speaking the procedure for preliminary
objections within the meaning of Article 79 of the Rules of Court, it
nonetheless concerns the jurisdiction of the Court in a preliminary way.
By inference, it thus seems to me that the Court has the power not only
to decide whether or not it has jurisdiction, but also to declare that, in the
circumstances of the case, this question is not of an exclusively prelimi-
nary character, and that the Court requires additional information in
order to be able to rule on it.

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          nuclear arms and disarmament (diss. op. bedjaoui)              825

   61. In a case as complex and important as this one between the Mar-
shall Islands and Pakistan, I could perhaps have accepted a decision
which reﬂected the Court’s — after all highly legitimate — concern to
avoid ruling prematurely on jurisdiction and admissibility. A basic and
somewhat understandable desire for caution might well lead the Court to
ﬁnd, at this stage of the proceedings, that it is unable to reach a deﬁnitive
conclusion regarding the existence of a dispute between the Marshall
Islands and Pakistan. The Court might very well still require further clar-
iﬁcation from the Parties. And knowing that, at this stage, it could not
evaluate their conduct without addressing the merits, the Court might
logically decide to wait for the merits stage before determining its posi-
tion. In other words, the Court might have been more prudent to ﬁnd
that the question of the existence of a dispute was not of an exclusively
preliminary character. It failed to contemplate that, which is unfortunate.

                                       *
                                   *       *

    X. The Train of Undesirable Consequences of This Decision

   62. Has anyone foreseen the whole train of undesirable consequences
that may well be unleashed by this decision of the Court? Has anyone
considered that, before we see the day when the Applicant returns to the
Court with an application which it has made fully compliant, the Respon-
dent could completely escape the Court’s jurisdiction? The Respondent, a
sovereign State, is of course able to withdraw its optional recognition of
the Court’s jurisdiction, in accordance with the terms of its declaration,
such a withdrawal being without eﬀect on any pending proceedings to
which that declaration applies. However, the new situation created today
may encourage certain inﬂuential circles to ask it to renounce its declara-
tion, or to amend it with an appropriate reservation, in order to prevent
the Applicant’s successful return to the Court. There is thus no point in
allowing the applicant State the possibility of submitting an amended
application if, in the meantime, the respondent State has withdrawn or
modiﬁed its optional clause declaration so as to put itself beyond the
reach of any claim of that applicant State.
   63. Scholars have generally pointed to the very relative success of the
optional clause accepting compulsory jurisdiction in the move towards a
compulsory form of international justice. It is by means of that clause
that the Marshall Islands has tried to seek from Pakistan an account of
its actions in support of nuclear disarmament. But after this decision of
the Court and with the ever-present risk of encountering a new impedi-
ment to jurisdiction as a result of the withdrawal or amendment of the
optional clause, the Court should probably resign itself to seeing Paki-
stan’s conduct in respect of nuclear disarmament escape for good any
future scrutiny by the Court.

                                                                         277

          nuclear arms and disarmament (diss. op. bedjaoui)              826

   64. Nor is the applicant State spared from the damage caused by the
Court’s decision. It would indeed be rather futile to assure the Marshall
Islands that it would be suﬃcient for it to address a few lines to Pakistan
in a Note Verbale, and to improve the presentation of its Application a
little by correcting some minor procedural ﬂaws, in order to be able to
return to the Court in a more commodious position. I think the Members
of our Court are by far the best placed to know what international pro-
ceedings cost in terms of intellectual eﬀort, ﬁnancial outlay, loss of pre-
cious time, and moral and political energy. It has certainly cost the
Marshall Islands a great deal in every respect, having come from the
other side of the world to the Court, and it would certainly cost it a great
deal more to approach this international Bench again, which is so distant
both geographically and in legal terms. Was there some signiﬁcant reason
to subject the Marshall Islands, already ill-served by providence as regards
development and tragically invaded by man through radioactive contam-
ination, to such an ungenerous fate? And if the Marshall Islands were to
return to the Court, how could it be sure that it would not be confronted
with an insurmountable obstacle in the shape of Pakistan’s having with-
drawn or modiﬁed in the meantime its optional declaration recognizing
the compulsory jurisdiction of the Court?

                                       *
                                   *       *

   65. And how does this decision of the Court serve the third losing
party today, the international community? The world has been waiting
for almost half a century — or more precisely, since 5 March 1970, the
date the NPT came into force — for the announcement of the oﬃcial
opening of a universal conference tasked with negotiating the elimination
of nuclear weapons! The Application ﬁled by the Republic of the Mar-
shall Islands reminds us all of this dangerous state of aﬀairs, which leaves
the way open for the nuclear arms race and postpones indeﬁnitely the
advent of a world free of nuclear weapons.
   66. The three cases on which the Court has just ruled concern an issue
of capital importance for the international community: nuclear disarma-
ment. Since one sad morning in August 1945, nuclear weapons, an insane
means of mass destruction, have left the entire human race living under a
death sentence. For 70 years they have been part of the human condition.
They enter into all calculations, all designs, all scenarios of international
life. Since Hiroshima, fear has become man’s ﬁrst nature. It is therefore
an overwhelming responsibility, as well as a great honour, for the Court
to lend the international community the full weight of its experience and
wisdom in order to help it avert the threat of war, war being nothing
more or less than the failure of man and his intelligence. The interna-
tional community is ready to believe, as Koskenniemi tells it, that “the
destiny of international law is to restore hope to mankind”. It therefore

                                                                         278

          nuclear arms and disarmament (diss. op. bedjaoui)               827

somehow expects the Court to cure it of fear and to spare it from nuclear
disaster.

   67. That international community, which thus no doubt places too
great a burden of responsibility on the Court, is likely to be heading for
disappointment today. The decisions handed down by the Court today in
these three cases reveal to international public opinion a world that is
regrettably inconsistent, not only in terms of procedural jurisprudence,
but also in respect of its substantive jurisprudence. What message is the
Court leaving the international community when it decides, on what are
exceedingly ﬂimsy bases, moreover, to decline to exercise its jurisdiction
in cases concerning the most crucial issues of nuclear disarmament,
involving the very survival of the whole human race?
   68. Today, looking at the Court’s three negative decisions, all that the
international community will take away is this new reality into which it
has suddenly been plunged and in which, above all, it will discern the
enormity of the challenge presented by nuclear disarmament and how mea-
gre and derisory are the arguments of the Court.
   69. It is a frustrating message that the Court is therefore leaving to an
international community which is bound to remember that, 20 years ago,
this very same Court, in contrast, gave it hope by sternly imposing the
obligation on all States to banish nuclear weapons from the face of the
earth.
   70. At a time when the United Nations, in its resolution of 17 Novem-
ber 1989, had proclaimed the last ten years of the century, 1990-2000, as
the “Decade of International Law”, the Court, in its Advisory Opinion of
8 July 1996, made a valiant eﬀort to show very clearly what the interna-
tional community had to do as a matter of urgency to address the pitiful
inadequacy of that international law in the face of the deadly threat of
nuclear weapons. Showing a keen sense of its responsibilities, and with
great honesty and simplicity, the Court laid bare the inability of contem-
porary international law to deal with these diabolical weapons. On this
basis, the United Nations General Assembly, to which the Court’s deci-
sion was primarily addressed, has since been able to call on all States,
year after year, ﬁnally to enter into negotiations leading to nuclear disar-
mament.
   71. And then all of a sudden, today, 20 years later, because of a judicial
decision that is particularly niggardly, pettily technical and largely impene-
trable for the public at large, the international community will wonder if
8 July 1996 was not just a misleading dream, as borne out by today’s
vacuous and abortive decision. And to deepen our despond still further,
we shall have not just one negative decision — there will be three of them.
They will thus repeat each other in order to hammer home the nightmare
to an international community which remains captive to a deadly weapon
that may well annihilate it one day.
   72. What is more, these three decisions of the Court could not come at
a worse time, with the ﬁve-yearly NPT review conferences failing to move

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         nuclear arms and disarmament (diss. op. bedjaoui)             828

forward, as was the case last year, in 2015, when the conference ended
without any result. At a time when the United Nations is making an
increasing number of urgent calls for the prohibition and elimination of
nuclear weapons, at a time when the Organization is stressing the ethical
imperatives for a world free of nuclear weapons, the international com-
munity will ﬁnd it hard to “handle” the three judicial decisions handed
down today.

                                      *
                                  *       *

   73. The fourth losing party could be the Court itself.
   74. I agreed to come one last time to serve this Court, which has given
me so much during the 20 years of my life that I have devoted to it. I
hope now that I may be allowed the liberty, for a brief moment, to shrug
oﬀ the robes of the professional lawyer that I have worn my whole life, in
order to pay a ﬁnal tribute to this venerable institution. A few days after
the delivery of the Advisory Opinion of 8 July 1996 on the Legality of the
Threat or Use of Nuclear Weapons, on 23 July at the Hague Academy of
International Law, I declared my pride at belonging to this Court, which
had set its seal on a judicial settlement that had long been marginalized
by States; which had been able to take action to help maintain interna-
tional peace; which had been capable of listening to the great anxieties
which prey on the conscience of humankind, and of secularizing interna-
tional justice. Following the 1996 Advisory Opinion, the approving gaze
that civil society turned on the Court was eloquent proof that it was to
enter the twenty-ﬁrst century successfully. That pride remains, but it is
also mixed with apprehension about the future.

   75. The Court’s recent tendency towards formalism, examples of which
we have here, with regrettable consequences, obliges me to express my
fears for this institution, whose mission is so essential; the Court risks
being “the fourth losing party”, because by dismissing the Marshall Islands
on the basis of a reparable procedural defect, it is undermining the sound
administration of justice, on which its functioning depends.
   76. If the Marshall Islands were to institute fresh proceedings against
Pakistan, despite the cost and energy that would be required, the Court
would be obliged to re-examine the numerous preliminary objections
which would certainly be raised again by the Respondent. That kind of
repetition would be contrary to the sound administration of justice, and
that is one of the reasons why procedural defects which can be corrected
have generally, at least until now, been tolerated by the Court. Would it
also be appropriate to question the minimalism of the present Judgment,
in which only the ﬁrst objection is examined, even though it seems to
be reparable? If the Marshall Islands returns before the Court, might it
be dismissed once again, on another basis that could also perhaps be
remedied?

                                                                       280

          nuclear arms and disarmament (diss. op. bedjaoui)               829

   77. Furthermore, by being unduly formalistic, the Court is letting
down and disappointing the international community, and is likely to
damage its reputation.
   78. For the legal scholar, it is a truism to say that formalism plays a
protective role when it comes to legitimate situations and interests, but
that it can also be used as a weapon to destroy progress. In these three
cases, the Court has overused this mode of reasoning to justify its posi-
tions. Its current practice of resorting to such an approach to interna-
tional law is further compounded by the variable but unexplained manner
in which it applies it. In these three cases, the Court seems to have been
unable to break away from a formalism which is as unexpected as it is
disheartening, which sacriﬁces the merits to procedure, content to form,
and the case to its subject-matter. Such formalism can only be, and be
seen as, regressive. And all the more clearly so in this instance, since it is
being applied to the most crucial issue in the world: nuclear disarmament.

                                       *
                                   *       *

   79. Perhaps I might better explain my discomfort on examining today’s
Judgments by observing that, all in all, the Court seems to me to have
made little attempt to avoid being subjective in its assessment of the evi-
dence put forward by the Applicant. This feeling of unease has stayed
with me throughout my re-readings of the three Judgments. It is particu-
larly frustrating, since the Court has always declared that its aim is to
give a fundamentally “objective” assessment of the evidence.
   The Court initially began by shielding the Respondent, placing it in an
impregnable fortress. It would of course be inappropriate for me to criti-
cize the Court for considering, from the outset, that the Respondent was
innocent of any breach of its obligations regarding nuclear disarmament.
Indeed, in such cases, the burden of proof is naturally borne by the Appli-
cant. However, it seems to me that the Court went beyond that, itself
organizing the Respondent’s defence. It examines all of the Applicant’s
arguments with what appears to be a negative prejudice.
   It is in that spirit that it considers each of the four pillars making up
the Marshall Islands’ argument. The non-relevance of the Nayarit state-
ment is so central to the rest of the Court’s reasoning that one might hope
to see this ﬁrst point decided on less ﬂimsy grounds. Likewise, the major-
ity considers irrelevant the conduct and statements subsequent to the
institution of proceedings, thus demonstrating that it has decided in
advance of this stage of its reasoning that a dispute does not exist. When
the Court then turns to the question of the Respondent’s voting record on
resolutions before international political organs, the reader’s faith is
restored and he or she fully agrees when the Court sounds a very wise
note of caution in this regard. The spell is soon broken, however, because
it would be in vain to search for the same advice being applied to explain
the votes cast by the Applicant. And in order to conclude its reasoning

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          nuclear arms and disarmament (diss. op. bedjaoui)              830

without examining the Respondent’s conduct, the Court quite simply
declares that Pakistan’s lack of awareness of the complaints renders such
an examination completely unnecessary.

                                       *
                                   *       *

   80. Last year I went to Hiroshima, at the invitation of the major Japa-
nese daily newspaper Asahi Shimbun and the local authorities. There I
saw humankind in contemplation. Before the pointless decree of death. In
the essential quest for life. It was a poignant sojourn that left a permanent
lump in the throat. I spoke at length before a huge crowd which, deeply
troubled by such savagery committed by man, sought in vain an improb-
able refuge in prayer and meditation.
   81. In the course of that unforgettable visit, I met the Mayor of Hiro-
shima, Mr. Takashi Hiraoka, the same person who, 20 years previously,
had come to see us in The Hague to give a moving testimony before the
Court. After the written phase of the proceedings on the Legality of the
Threat or Use of Nuclear Weapons, the Court opened an oral phase in
November 1995, during which it heard the views of some 25 States, as
well as statements by the Mayor of Hiroshima, Mr. Takashi Hiraoka,
and the Mayor of Nagasaki, Mr. Iccho Itoh. When I saw Mr. Hiraoka
again last year, the ﬁnal words of his address in 1995 before the Court
came back to me. I remember that at the end of his tragic account, he
looked at each judge on the Bench for a few moments before uttering his
ﬁnal words, which were: “The fate of the human race is in your hands!”

   82. I cannot wipe from my mind the striking contrast between, on the
one hand, the three decisions handed down by the Court today, accord-
ing to which there is no dispute between the applicant State and the
respondent States in the crucial sphere of nuclear disarmament, and, on
the other, the highly symbolic signiﬁcance of the ﬁrst visit to Hiroshima
by a President of the United States, on Friday 27 May 2016, the place
where, on 6 August 1945, “the world was forever changed”. I cannot wipe
from my mind the striking contrast between, on the one hand, today’s
three judicial decisions, so cruelly captive to a narrow legal formalism,
and, on the other, that Head of State’s urgent call for a “moral revolu-
tion” to rid our world once and for all of nuclear weapons. And lastly, I
cannot wipe from my mind the striking contrast between, on the one
hand, these three decisions of the Court, and, on the other, the prepara-
tions that are probably now under way for a visit to Pearl Harbour,
before the end of this year, by the Japanese Prime Minister, so that
humankind can seal its reconciliation with itself.

                                       *
                                   *       *

                                                                         282

         nuclear arms and disarmament (diss. op. bedjaoui)               831

   83. Our uncertain world lives both with a pride in power and with a
fear of the vulnerability of a civilization which somehow believes it has
tamed a rebellious atom. I should like to draw from a speech on “the
crisis in civilization”, given one day by the polymath Rabindranath
Tagore, a much-needed note of hope on which to end this disillusioned
dissenting opinion:
       “I look around and see the crumbling ruins of a proud civiliza-
    tion . . . And yet I shall not commit the grievous sin of losing faith in
    man . . . [One] day will unvanquished man retrace his path of con-
    quest, surmounting all barriers to win back his lost human heritage.”

                                       (Signed) Mohammed Bedjaoui.

                                                                         283


252

DECLARATION OF JUDGE KOROMA

1. I have voted in favour of the Order because, in my view, it has
attempted to address some of the concerns at the heart of the request.

2. In its request for the indication of provisional measures and during
the public hearings, the Congo invoked various legal instruments, includ-
ing inter alia the United Nations Charter, the Charter of the Organiza-
tion of African Unity, the International Bill of Human Rights, the Geno-
cide Convention (1948), the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949 and the
first Protocol additional to the Conventions, of 8 June 1977, relating to
the Protection of Victims of International Armed Conflicts, and the Con-
vention on the Elimination of All Forms of Discrimination against
Women of 18 December 1979, and alleged: the occupation of a “signifi-
cant part of the eastern [territory]” involving “large-scale massacres”,
“rape and sexual assault of women”, “murders and abductions of politi-
cal figures and human rights activists”, “arrests, arbitrary detentions,
inhuman and degrading treatment”, systematic looting of public and pri-
vate institutions and theft of property of the civilian population; geno-
cide against more than 3,500,000 Congolese, including the victims of
recent massacres in the city of Kisangani; and the violation of the sacred
right to life provided for in the Universal Declaration of Human Rights.

3. In support of its request, the Congo noted the

“continuing grave, flagrant, large-scale acts of torture, cruel,
inhuman or degrading punishment or treatment, genocide, massacre,
war crimes and crimes against humanity, discrimination, violation
of the rights of women and children .. .”.

4. The Congo further justifies its request for interim measures of pro-
tection on the ground that,

“fijn addition to the numerous heinous crimes perpetrated by
Rwanda as set out in the Application instituting proceedings .. .
[that] the massacres (begun in August 1998) have continued since
January 2002 up to the present time, despite numerous resolutions of
the Security Council of the United Nations and of its Commission
on Human Rights”.

5. It was also the Congo’s contention that “to fail to make an imme-
diate order for the measures sought would have humanitarian conse-
quences which could never be made good again . . . in the short term or
in the long term”.

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253 ARMED ACTIVITIES (DECL. KOROMA)

6. During the hearings, the Congo further observed that “the state of
war and ... occupation by foreign troops can hardly promote respect for
women’s rights” and it referred in this connection to the terrible suffering
endured by women and children as a result of the presence of Rwandan
troops, to “rapes and various acts of oppression”, to “mutilations”, and
to “other forms of violence, including the burial of women alive”, in vio-
lation of the Convention on the Elimination of All Forms of Discrimina-
tion against Women, citing resolution 2002/14, adopted on 19 April 2002,
pursuant to which the United Nations Commission on Human Rights
deplored “the widespread use of sexual violence against women and chil-
dren, including as a means of warfare”.

7. It is against the background of the aforesaid allegations that the
Congo requested the Court to adjudge and declare that Rwanda must
put an end to the acts constituting grave, flagrant and massive violations
to the detriment of the Congolese people.

8. Rwanda, for its part, contended that the Court was being called
upon by the Congo “to give what would amount to a final judgment on
the merits under the guise of provisional measures”, to “impose provi-
sional measures directed to States which are not parties to [the] proceed-
ings, and to international organizations which cannot be party” to them,
and “to usurp the authority of other institutions by creating its own
international peacekeeping force”; it further stated that such measures
“manifestly fall outside any jurisdiction which the Court might possess in
any case between two States”.

9. Referring to the criteria that govern the indication of provisional
measures, Rwanda asserted that

“the extent of the jurisdiction which can be founded upon the pro-
visions invoked by an applicant will determine which of the rights
that the applicant asserts (if any) can be the subject of a decision by
the Court and therefore which rights are capable of being protected
by means of provisional measures”.

In this connection it contended that “fnlone of the jurisdictional
provisions . . . relied [upon] come anywhere near affording even a prima
facie basis for the jurisdiction of the Court as between the Congo and
Rwanda” and that in any event “those instruments which might — in
other circumstances — offer some element of jurisdiction do not afford a
basis for jurisdiction in respect of the rights which the Congo seeks to
assert”.

10. It is apparent from the information submitted to the Court that
real, serious threats do exist to the population of the region concerned,
including the threat to life.

11. According to Article 41 of its Statute, the Court is empowered to
indicate protective measures: “if it considers that circumstances so
require .. . which ought to be taken to preserve the respective rights of
either party”. The Court has set out certain criteria to be satisfied before

38
254 ARMED ACTIVITIES (DECL. KOROMA)

granting such a request. Among these are that there must be prima facie
or potential jurisdiction, urgency, and the risk of irreparable harm if an
order is not granted. But these criteria, in my view, have to be considered
in the context of Article 41, which authorizes the Court to “indicate”, if
it considers that the circumstances so require, any provisional measure
which ought to be taken to preserve the respective rights of either party,
and of the Court’s role in maintaining international peace and security,
including human security and the right to life.

12. Although the Court has been unable to grant the request for want
of prima facie jurisdiction, it has, in paragraphs 54, 55, 56 and 93 of the
Order, rightly and judiciously, in my view, expressed its deep concern
over the deplorable human tragedy, loss of life and enormous suffering in
the east of the Democratic Republic of the Congo resulting from the
fighting there. The Court has also rightly emphasized that all parties to
the proceedings before it must act in conformity with their obligations
pursuant to the United Nations Charter and the rules of international
law, including humanitarian law and further emphasized the obligation
borne by the Congo and Rwanda to respect the provisions of the Geneva
Conventions of 12 August 1949 and of the first Protocol additional to
those Conventions, of 8 June 1977, relating to the protection of victims of
international armed conflicts, to which instruments both of them are
parties.

13. It was also appropriate for the Court to emphasize in the context
of this case, as it has done in paragraph 93 of the Order, that whether or
not States accept the jurisdiction of the Court, they remain, in any event,
responsible for acts attributable to them that violate international law
and that they are required to fulfil their obligations under the United
Nations Charter and in respect of the relevant Security Council resolu-
tions, which have demanded that “all parties to the conflict” put an end
to violations of human rights and international humanitarian law,
reminded “all parties of their obligations with respect to the security of
civilian populations under the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949”, and
added that “all forces present on the territory of the Democratic
Republic of the Congo are responsible for preventing violations of inter-
national humanitarian law in the territory under their control”.

14. Finally, the Court has stressed the necessity for the Parties to these
proceedings to use their influence to prevent the repeated grave violations
of human rights and international humanitarian law which have been
observed even recently.

15. According to the jurisprudence of the Court, a provisional
measure may take the form of an exhortation to “ensure that no step

39
255 ARMED ACTIVITIES (DECL. KOROMA)

of any kind is taken capable of prejudicing the rights claimed . . . or
of aggravating or extending the dispute submitted to the Court”
(Electricity Company of Sofia and Bulgaria, Order of 5 December 1939,
P.C.LJ., Series AIB, No. 79, p. 199); or it may be granted where it has
been shown that there is a risk of irreparable harm or injury which is
not illusory or insignificant; or it may consist of a protective measure
ordered by the Court encouraging the parties to reach an agreement
to preserve the status quo until the merits of the claim are finally
adjudged, or it may urge the parties to a dispute not to resort to force
and to settle their dispute peacefully on the basis of the law.

16. In my view, if ever a dispute warranted the indication of interim
measures of protection, this is it. But while it was not possible for the
Court to grant the request owing to certain missing elements, the Court
has, in accordance with its obiter dicta in the cited paragraphs, never-
theless discharged its responsibilities in maintaining international peace
and security and preventing the aggravation of the dispute. The position
taken by the Court can only be viewed as constructive, without however
prejudging the merits of the case. It is a judicial position and it is in the
interest of all concerned to hearken to the call of the Court.

(Signed) Abdul G. Koroma.

40