450

            SEPARATE OPINION OF JUDGE SEBUTINDE

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

                                 Introduction

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

                    Responsibility for the Maintenance
                   of International Peace and Security

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

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

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

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

                    The NPT and Nuclear Disarmament

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

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

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

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

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

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

including the Republic of the Marshall Islands (RMI) 9. India has neither
signed nor ratiﬁed the NPT (Judgment, para. 17). However, contrary to
the NPT objectives, State practice demonstrates that for the past nearly
70 years, some States have continued to manufacture, acquire, upgrade,
test and/or deploy nuclear weapons and that a threat of possible use is
inherent in such deployment. Furthermore, State practice demonstrates
that far from proscribing the threat or use of nuclear weapons in all cir-
cumstances, the international community has, by treaty and through the
United Nations Security Council, recognized in eﬀect that in certain
circumstances the use or threat of use of nuclear weapons may even be
justiﬁed.
   5. In December 1994 the United Nations General Assembly sought an
advisory opinion from the Court regarding the legality of the threat or
use of nuclear weapons 10. The question posed by the General Assembly
was quite simply “Is the threat or use of nuclear weapons in any circum-
stance permitted under international law?” In response, the Court consid-
ered that it was being asked “to determine the legality or illegality of the
threat or use of nuclear weapons” 11. After taking into account the body
of international law (including Article 2, paragraph 4, and Article 51 of
the United Nations Charter) as well as the views of a vast number of
States that ﬁled their written submissions before the Court, the Court
opined that :
— there is no speciﬁc authorization of the threat or use of nuclear weap-
  ons in either customary or conventional international law 12;

— there is no comprehensive and universal prohibition of the threat or
  use of nuclear weapons as such, in either customary or conventional
  international law 13;
— a threat or use of nuclear weapons that was contrary to Article 2,
  paragraph 4, or that failed to meet all the requirements of Article 51
  of the United Nations Charter ; or that is incompatible with the prin-
  ciples and rules of international humanitarian law applicable in armed
  conﬂict or that is incompatible with treaties speciﬁcally dealing with
  nuclear weapons, is illegal 14.

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

See United Nations Oﬃce of Disarmament Aﬀairs, Marshall Islands: Accession to Treaty
on the Non-Proliferation of Nuclear Weapons, available at: http://disarmament.un.org/
treaties/a/npt/marshallislands/acc/washington.
   10 UN General Assembly resolution A/RES/49/75 K, 15 December 1994, Request for

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

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

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

  6. However, the Court did make one exception to its ﬁndings (albeit in
an evenly divided manner 15) when it opined that :

       “in view of the current state of international law, and of the elements
       of fact at its disposal, the Court cannot conclude deﬁnitively whether
       the threat or use of nuclear weapons would be lawful or unlawful in
       an extreme circumstance of self-defence, in which the very survival of
       a State would be at stake” 16.
  7. Finally, although this does not appear to have been in direct
answer to the question posed by the General Assembly, the Court went
an extra mile in what, in my view, is the real contribution of the Court to
world peace and security as far as the question of nuclear weapons is
concerned. It stated in paragraphs 98 to 100 of the Advisory Opinion, as
follows :
          “Given the eminently diﬃcult issues that arise in applying the
       law on the use of force and above all the law applicable in armed
       conﬂict to nuclear weapons, the Court considers that it now needs to
       examine one further aspect of the question before it, seen in a broader
       context.
          In the long run, international law, and with it the stability of the
       international order which it is intended to govern, are bound to suﬀer
       from the continuing diﬀerence of views with regard to the legal status
       of weapons as deadly as nuclear weapons. It is consequently impor-
       tant to put an end to this state of aﬀairs : the long-promised complete
       nuclear disarmament appears to be the most appropriate means of
       achieving that result.
          In these circumstances, the Court appreciates the full importance
       of the recognition by Article VI of the Treaty on the Non-Proliferation
       of Nuclear Weapons of an obligation to negotiate in good faith a
       nuclear disarmament . . . The legal import of that obligation goes
       beyond that of a mere obligation of conduct ; the obligation involved
       here is an obligation to achieve a precise result — nuclear disarma-
       ment in all its aspects — by adopting a particular course of conduct,
       namely, the pursuit of negotiations on the matter in good faith.
          This twofold obligation to pursue and to conclude negotiations
       formally concerns the 182 States parties to the [NPT], or, in other
       words, the vast majority of the international community . . . Indeed,
       any realistic search for general and complete disarmament, especially
       nuclear disarmament, necessitates the co-operation of all States.”
       (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
       I.C.J. Reports 1996 (I), pp. 263-264, paras. 98-100.)

  15 By seven to seven votes with the President having to use his casting vote.
  16 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 266, para. 105 (2) E.

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

   8. The Court then unanimously opined in the operative clause that,
“There exists an obligation to pursue in good faith and to bring to a con-
clusion negotiations leading to nuclear disarmament in all its aspects
under strict and eﬀective international control.” 17 The Advisory Opinion
of the Court, although not legally binding, was well received by the vast
majority of NPT States parties, although it was less welcome by those
nuclear-weapon States that were of the view that the Court had
over-stepped its judicial function by rendering this Opinion. In Decem-
ber 1996 the General Assembly passed a resolution endorsing the conclu-
sion of the Court relating to the existence of “an obligation to pursue in
good faith and to bring to a conclusion, negotiations leading to disarma-
ment in all its aspects under strict and eﬀective international control” and
calling upon all States to immediately commence multilateral negotia-
tions leading to a nuclear weapons convention prohibiting “the develop-
ment, production, testing, deployment, stockpiling, threat or use of
nuclear weapons” and providing for their elimination 18.

   9. Regrettably, since the adoption of the Court’s Advisory Opinion
20 years ago, the international community has made little progress towards
nuclear disarmament and even the prospect of negotiations on the conclu-
sion of a nuclear weapons convention, seems illusory. It is in this context
that on 24 April 2014, the Republic of the Marshall Islands (RMI) ﬁled an
Application against nine respondent States (United States, Russia, United
Kingdom, France, China, India, Pakistan, Israel and North Korea), which
the Applicant maintains currently possess nuclear weapons, alleging a fail-
ure by the respondent States to fulﬁl obligations concerning negotiations
relating to the cessation of the nuclear arms race at an early date and to
nuclear disarmament. Of the nine respondent States, only Pakistan, India
and the United Kingdom formally responded to the RMI Application,
each of the three States having previously ﬁled declarations pursuant to
Article 36, paragraph 2, of the Statute of the Court recognizing the com-
pulsory jurisdiction of the Court (Judgment, para. 21).

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

203

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

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

   10. The Marshall Islands bases the jurisdiction of the Court on its
optional clause declaration pursuant to Article 36, paragraph 2, of the
Statute of the Court dated 15 March 2013 and deposited on 24 April
2013, recognizing the compulsory jurisdiction of the Court ; and that of
India dated 15 September 1974 and deposited on 18 September 1974,
which declarations the Marshall Islands claims are “without pertinent
reservation” 19. India, which is not party to the NPT (Judgment, para. 17),
raised a number of preliminary objections against the Court’s jurisdic-
tion, including the absence of a legal dispute between the Applicant and
Respondent as at 24 April 2014, the date of ﬁling of the Application. The
Marshall Islands disagrees and maintains that a dispute did exist at the
time it ﬁled its Application, the subject-matter of which is “India’s com-
pliance or non-compliance with its obligation under customary interna-
tional law to pursue in good faith, and bring to a conclusion, negotiations
leading to nuclear disarmament” 20. In its Judgment, the Court agrees
with India in this regard and upholds its objection to jurisdiction (ibid.,
para. 56). I respectfully disagree with the majority decision as well as
the underlying reasoning, and set out my reasons in this separate opinion.
In my view, the evidence on record when properly tested against the
criteria well-established in the Court’s jurisprudence, shows that a dispute
did exist between the Parties before the ﬁling of the Application.
I particularly disagree with the new criterion of “awareness” that the
majority introduces, as well as the formalistic and inﬂexible approach
taken in the determination of whether or not a dispute exists (ibid.,
paras. 38-49).

   11. India contends that the Court lacks jurisdiction to entertain the
claim of Marshall Islands on the grounds that :
(a) prior to or at the time the Marshall Islands ﬁled its Application on
    24 April 2014, there was no legal dispute in existence between the
    Parties that could trigger the Court’s jurisdiction under its
    Statute 21;
(b) that the Marshall Islands had never brought its claim to the attention
    of India, nor attempted to hold diplomatic negotiations with India
    before ﬁling the case with the Court. Consequently, there could be no
    conﬂict of legal positions between the two Parties, and as such no
    legal dispute between them 22;

  19 Application of the Marshall Islands (AMI), p. 38, para. 65.
  20 Memorial of the Marshall Islands (MMI), p. 8, para. 13.
  21 Counter-Memorial of India (CMI), p. 2, para. 3.
  22 CMI, p. 10, para. 16 and CR 2016/8, p. 31, paras. 13-14 (Pellet).

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

(c) that the claim of the Marshall Islands is artiﬁcial 23 in as far as the
    Applicant cites an “undeﬁned and unstated principle” of customary
    international law 24; and
(d) that the claim of the Marshall Islands constitutes an abuse of process
    in as far as the Marshall Islands is attempting to impose upon India
    the obligations established in the NPT, a treaty that it has systemat-
    ically rejected 25.
   12. For its part, the Marshall Islands maintains that a dispute did exist
between the Parties at the time the Application was ﬁled 26, the subject-
matter of which is “India’s non-compliance with its obligation under cus-
tomary international law to pursue in good faith and to bring to a
conclusion, negotiations leading to nuclear disarmament in all its aspects
under strict and eﬀective international control” 27. It argues further that it
has repeatedly called upon nuclear-weapon States, including India, to
comply with their international obligations and to negotiate nuclear dis-
armament 28. In particular the Marshall Islands refers to two of its state-
ments made publicly in the presence of India before the Application was
ﬁled. First, on 26 September 2013, at the UN High-Level Meeting on
Nuclear Disarmament, the Minister of Foreign Aﬀairs of the Marshall
Islands called upon: “all nuclear weapon States to intensify efforts to
address their responsibilities in moving towards an effective and secure
disarmament” 29. Secondly, on 13 February 2014, during the Second Con-
ference on the Humanitarian Impact of Nuclear Weapons at Nayarit,
Mexico, the RMI representative made similar remarks 30.

   13. The Marshall Islands submits that these and other public
statements “illustrate with perfect clarity the content of the claim . . .” 31
and that these statements were “unequivocally directed against all States
possessing nuclear arsenals, including India” (emphasis added) 32. The fact
that India participated in those conferences was, according to the
   23 CMI, p. 13, para. 20.
   24 Ibid., p. 16, para. 25.
   25 CR 2016/4, p. 21, para. 9 (Salve).
   26 MMI, p. 8, para. 14, citing: Mavrommatis Palestine Concessions, Judgment No. 2,

1924, P.C.I.J., Series A, No. 2, p. 11; Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 84-85, para. 30.
   27 MMI, p. 9, para. 15.
   28 Ibid., para. 16.
   29 Ibid., citing statement by Honourable Mr. Phillip Muller, Minister of Foreign Aﬀairs

of the Republic of the Marshall Islands, 26 September 2013 (emphasis added).
   30 Ibid., p. 10, citing Marshall Islands statement, Second Conference on the Humani-

tarian Impact of Nuclear Weapons, Nayarit, Mexico, 13-14 February 2014; CR 2016/1,
pp. 18-19, para. 14 (deBrum) and CR 2016/1, p. 37, para. 20 (Condorelli).
   31 MMI, p. 9, para. 17.
   32 Ibid., pp. 9-10, paras. 17-18.

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

Marshall Islands, suﬃcient to consider it notiﬁed of the claim of the
Marshall Islands, in particular, because the RMI statements were very
clear on the subject-matter of the dispute, namely, the failure of
nuclear-weapon States to seriously engage in multilateral negotiation
leading to nuclear disarmament arising under the NPT and/or customary
international law. The legal basis of the claim was also clearly identi-
ﬁed 33. Finally, the Marshall Islands considers that its claims have been
positively opposed by India in that the latter, while rhetorically claiming
to be committed to achieving a nuclear-free world, has continued to
“engage in a course of conduct consisting of the quantitative build-up
and qualitative improvement of its nuclear arsenal, which is contrary to
the objective of nuclear disarmament” 34. Furthermore, the Marshall
Islands submits that India positively opposed the Applicant’s claims in its
Letter of 6 June 2014 and in its Counter-Memorial, where it explicitly
disputed the validity of those claims 35, considering that such denial con-
stitutes a legal dispute in itself 36. On the issue of negotiations, the Mar-
shall Islands submits that it was under no obligation to pursue diplomatic
negotiations with India prior to submitting the dispute before the Court 37.
Finally, the Marshall Islands addresses the applicability of the ILC Arti-
cles on State Responsibility to the present dispute and points out that,
according to the ILC commentary, the said Articles do not concern the
jurisdiction of international courts 38. In its Judgment, the Court upholds
India’s preliminary objection to jurisdiction on the ground that there was
no dispute between the Parties prior to the ﬁling of the RMI Application.
I respectfully disagree with that decision as well as the underlying reason-
ing and set out my reasons in this separate opinion. In my view, the evi-
dence on record when properly tested against the criteria well-established
in the Court’s jurisprudence shows that a dispute did exist, albeit in a
nascent form, between the Parties before the ﬁling of the Application and
that this dispute crystallized during the proceedings. I particularly dis-
agree with the new criterion of “awareness” that the majority introduces,
as well as the formalistic and inﬂexible approach taken in the determina-
tion of whether or not a dispute exists.

  14. First, the Judgment rightly points out the Court’s function under
   33  MMI, p. 9, para. 17.
   34  Ibid., p. 10, para. 19; CR 2016/1, p. 19, para. 16 (deBrum).
   35 MMI, p. 12, para. 22.
   36 Ibid., citing Certain Property (Liechtenstein v. Germany), Preliminary Objections,

Judgment, I.C.J. Reports 2005, p. 19, para. 25 and CR 2016/1, p. 34, para. 13 (Condorelli).
The Marshall Islands further contends that the qualitative build-up of the nuclear cap-
abilities of India is illustrated by its test, during the hearings, of intermediate range,
submarine-launched ballistic missiles capable of deploying nuclear warheads. CR 2016/6,
p. 8, paras. 1-2 (van den Biesen).
   37   CR 2016/6, pp. 15-16, paras. 8-9 (Condorelli).
   38   Ibid., p. 18, para. 14 (Condorelli).

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

Article 38 of its Statute, which is to decide such inter-State disputes as are
referred to it (Judgment, para. 33). In cases such as this one, where States
have made declarations (with or without reservations) recognizing the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of
the Statute, the jurisdiction of the Court emanates from those very decla-
rations rather than from the existence of a dispute as such. It is more
accurate to say that the existence of a dispute between the contending
States is merely a pre-condition for the exercise of that jurisdiction.
   15. Secondly, the Judgment rightly deﬁnes a dispute as “a disagree-
ment on a point of law or fact, a conﬂict of legal views or of interests
between parties” (Judgment, para. 34). The Judgment also correctly states
that it is for the Court (and not the Parties) to determine objectively
whether a dispute exists after examining the facts or evidence before it
(ibid., para. 36) and that such determination is a matter of substance and
not procedure or form (ibid., para. 35). Thirdly, it is clear from the Court’s
jurisprudence that neither prior notiﬁcation by the applicant, of its claim
to the respondent, nor a formal diplomatic protest by the applicant, are
necessary prerequisites for purposes of determining the existence of a dis-
pute (ibid).
   16. While the Judgment correctly rehearses the Court’s jurisprudence
regarding the deﬁnition of a “dispute” and the fact that determination
of the existence of a dispute is “a matter of substance, and not a question
of form or procedure”, I disagree with the approach and analysis that
the majority has employed in arriving at the conclusion that there is
no dispute between the Parties. I ﬁnd that approach to be not only
formalistic and procedural, but also lacking in addressing the substantive
aspects of the Applicant’s claim, such as the conduct of the Respondent.
Given the importance of nuclear disarmament to the international
community at large, I believe that this is not a case that should have
been easily dismissed on a formalistic or procedural ﬁnding that no
dispute exists between the Contending Parties. Instead, a more substan-
tive approach that analyses the conduct of the contesting States right up
until 24 April 2014 and beyond if necessary, should have been undertaken
in determining whether the Parties had “clearly opposite views” 39. The
Court’s jurisprudence clearly demonstrates the Court’s consistent prefer-
ence for a ﬂexible approach that steers clear of formality or proce-
dural rigour, right from the days of the Permanent Court of International
Justice 40, and until more recently in Croatia v. Serbia 41.

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

(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 26,
para. 50.
   40 Op. cit., P.C.I.J., Series A, No. 2, p. 34; Certain German Interests in Polish Upper

Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 14.
   41 Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008,
pp. 438-441, paras. 80-85; op. cit., I.C.J. Reports 2011 (I), pp. 84-85, para. 30.

207

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

   17. An applicant is required under Article 40, paragraph 1, of the
Statute and Article 38, paragraph 2, of the Rules of Court to indicate
the “subject of the dispute” in the Application and to specifying
therein the “precise nature of the claim” 42. The Marshall Islands did spec-
ify its claim or subject-matter of the dispute in its Application and
Memorial as
      “the failure of India to honour its obligation towards the Applicant
      (and other States) to pursue in good faith and bring to a conclusion,
      negotiations leading to nuclear disarmament in all its aspects under
      strict and eﬀective international control” 43.

Furthermore, the Marshall Islands claim is clearly legal in nature in as far
as it concerns the alleged non-performance by India of an obligation
under customary international law. Of course the existence and
nature of the purported obligation, as well as the acts constituting the
alleged breach thereof, are matters to be examined at the merits phase of
the case.
   18. However, it is not suﬃcient, for purposes of demonstrating
the existence of a dispute, for the Marshall Islands to articulate its
claims in its Application and Memorial. Nor is it suﬃcient merely for one
party to assert that a dispute exists or for the other to deny that it does.
It must, in this case, be demonstrated that the claims of the Marshall
Islands are positively opposed by India or that there is “a disagreement on
a point of law or fact, a conflict of legal views or of interests” between the
two Parties 44 and that this was the case at the time the Application was
ﬁled.
   19. As stated in the Court’s jurisprudence, it is for the Court to deter-
mine on an objective basis, whether or not an international dispute exists
between the Parties by “isolat[ing] the real issue in the case and identify[ing]
the object of the claim” 45. The Court must carry out a substantial exami-

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

nary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 25; Fisheries Jurisdic-
tion (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448,
para. 29.
   43 MMI, p. 8, para. 13; see also AMI, p. 6, para. 2.
   44 Mavrommatis Palestine Concessions, 1924, Judgment No. 2, P.C.I.J., Series A, No. 2,

p. 11; emphasis added. It has also been repeated by the ICJ in: Application of the Inter-
national Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 84-85,
para. 30; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 28-30,
paras. 37-44.
   45 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29;

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

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

nation or inquiry of the facts or evidence 46. Although the dispute must, in
principle, exist at the time the Application is submitted to the Court 47,
there have been cases in which the Court has adopted a more ﬂexible
position, considering that facts arising after the application has been ﬁled
may be taken into account. For example, in the Border and Transborder
Armed Actions (Nicaragua v. Honduras) case, the Court held that :

         “It may however be necessary, in order to determine with certainty
      what the situation was at the date of ﬁling of the Application, to
      examine the events, and in particular the relations between the Par-
      ties, over a period prior to that date, and indeed during the subsequent
      period.” 48
   20. Furthermore, although the Court has stated in the South West
Africa cases that in order for a dispute to exist, the claim of one party
must be “positively opposed” by the other 49, such “positive opposition”
should not be perceived as a formal or procedural disagreement on a
point of law or fact only. In my view, the Court should, consistent with
its jurisprudence rehearsed in the Judgment (paras. 34-37), adopt a sub-
stantive approach whereby if one State adopts a course of conduct to
achieve its own interests, which conduct is then protested by the other, a
positive opposition of views or interests is demonstrated. The perspective
that takes into account the conduct of the contesting parties in determin-
ing the existence or otherwise of a dispute, and with which I agree, was
aptly expressed by Judge Gaetano Morelli in his dissenting opinion in the
South West Africa cases when he stated as follows :

        “As to a disagreement upon a point of law or fact, it is to be
      observed that, while such a disagreement may be present and com-
      monly (but not necessarily) is present where there is a dispute, the two
      things (disagreement and dispute) are not the same. In any event it is
      abundantly clear that a disagreement on a point of law or fact, which

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

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

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 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.
   48 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and

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

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

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

      may indeed be theoretical, is not suﬃcient for a dispute to be regarded
      as existing.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         In my opinion, a dispute consists, not of a conﬂict of interests as
      such, but rather in a contrast between the respective attitudes of the
      parties in relation to a certain conﬂict of interests. The opposing atti-
      tudes of the parties, in relation to a given conﬂict of interests, may
      respectively consist of the manifestations of the will by which each of
      the parties requires that its own interest be realized. It is the case of
      a dispute resulting, on one side, from a claim by one of the parties
      and, on the other side, of the contesting of that claim by the other
      party. But it may also be that one of the opposing attitudes of the
      parties consists, not of a manifestation of the will, but rather of a
      course of conduct by means of which the party pursuing that course
      directly achieves its own interest. This is the case of a claim which is
      followed not by the contesting of the claim but by the adoption of a
      course of conduct by the other party inconsistent with the claim. And
      this is the case too where there is in the ﬁrst place a course of conduct
      by one of the parties to achieve its own interest, which the other party
      meets by a protest.” 50
   21. In order to determine with certainty what the situation was at the
date of ﬁling of the RMI Application, it is necessary to examine the con-
duct of the Parties over the period prior to that date, and during the
subsequent period. First, the conduct of India that the Marshall Islands
has raised issue within its Application and Memorial is “India’s continu-
ing breach of its obligations under customary international law to pursue
in good faith, and bring to a conclusion, negotiations leading to nuclear
disarmament” 51. Furthermore, the Marshall Islands has in its Applica-
tion cited India’s nuclear weapons program which India is reportedly
expanding 52. The Marshall Islands refers to this program as “a quantita-
tive build-up and qualitative improvement” 53 of India’s nuclear arsenal
and submits that it is inconsistent with India’s erga omnes obligations
under customary international law to pursue negotiations towards nuclear
disarmament. On its part, India refers to its right to maintain a nuclear
arsenal for reasons of national security and points to its assurances that it
would never use its arsenal for aggression or “ﬁrst-use” towards any
State. It also points to the fact that it has always voted in favour of
United Nations resolutions in favour of international negotiations
towards nuclear disarmament. It also cites a number of statements by its
high-ranking oﬃcials in both domestic and international fora reiterating

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

nary Objections, Judgment, I.C.J. Reports 1962; dissenting opinion of Judge Morelli,
pp. 566-567, Part II, paras. 1-2.
   51 MMI, p. 8, para. 13; AMI, pp. 9-10, para. 6.
   52 AMI, pp. 16-24, paras. 23-34.
   53 Ibid., p. 38, section “Remedies”, para. (a).

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

India’s commitment to meaningful negotiations towards nuclear disarma-
ment. The Marshall Islands maintains that notwithstanding its voting
patterns, India’s course of conduct consisting, on the one hand, of its
participation in the nuclear arms race and, on the other hand, its failure
to pursue multilateral negotiations towards nuclear disarmament, is
inconsistent with its obligations under customary international law. With-
out prejudging the issue of whether or not India’s conduct referred to
above actually constitutes a breach of an obligation under customary
international law, (an issue clearly for the merits) the question for deter-
mination is whether, before ﬁling its Application against India on 24 April
2014, the Parties held clearly opposite views concerning India’s perfor-
mance or non-performance of certain international obligations.

   22. In this regard, I have taken into account relevant statements of
high-ranking oﬃcials of each of the Parties. The Marshall Islands speciﬁ-
cally mentions the statements it made when it joined the NPT 54, and
those made during the 2010 NPT Review Conference, the 2013 United
Nations High-Level Meeting on Nuclear Disarmament 55, and the
2014 Conference on the Humanitarian Impact of Nuclear Weapons 56.
The Marshall Islands argues that those statements were suﬃcient to make
all nuclear-weapon States, including India, aware of the Marshall Islands
position on the matter 57.
   23. First, the views of the Marshall Islands on nuclear disarmament
were clearly communicated to all nuclear-weapon States present in New
York on 26 September 2013, at the UN High-Level Meeting on Nuclear
Disarmament, when the Minister of Foreign Aﬀairs of the Marshall
Islands called upon: “all nuclear weapon States to intensify eﬀorts to
address their responsibilities in moving towards an eﬀective and secure
disarmament” 58.
   24. Secondly, on 13 February 2014, at the Second Conference on the
Humanitarian Impact of Nuclear Weapons at Nayarit, Mexico, the Mar-
shall Islands reiterated its position on the failure of nuclear-weapon States
to pursue negotiations towards nuclear disarmament when it issued a
Declaration stating that :
      “the Marshall Islands is convinced that multilateral negotiations on
      achieving and sustaining a world free of nuclear weapons are long

   54 CR 2016/1, p. 16, para. 5 (deBrum), citing: Letter dated 22 June 1995 from the

Permanent Representative of the Marshall Islands to the United Nations, together with
Written Statement of the Government of the Marshall Islands.
   55 MMI, p. 9, para. 16.
   56 Ibid.
   57 Ibid., p. 10, para. 18.
   58 Ibid., p. 9, para. 16, citing statement by Hon. Mr. Phillip Muller, Minister of Foreign

Aﬀairs of the Republic of the Marshall Islands, 26 September 2013 (emphasis added).

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

      overdue. Indeed we believe that States possessing nuclear arsenals are
      failing to fulﬁl their legal obligations in this regard. Immediate com-
      mencement and conclusion of such negotiations is required by legal
      obligation of nuclear disarmament resting upon each and every State
      under Article VI of the Non Proliferation Treaty and customary inter-
      national law.” 59 (Emphasis added.)

  25. In my view, those statements also represent the RMI’s claim that
nuclear-weapon States, including India, are obliged under the NPT and/
or customary international law, to pursue negotiations leading to nuclear
disarmament. India, known to be one of nine States that possess nuclear
weapons 60, was represented at that meeting. At the meeting of 26 Sep-
tember 2013, India was represented by Mr. Salman Khurshid, External
Aﬀairs Minister of India ; while at the meeting of 13 February 2014 it was
represented by Mr. Ashutosh Agrawal, Deputy Head of the Indian
Embassy in Mexico. Thus, although the statements were generally
addressed to “all nuclear weapon States” and India was not singled out
for mention by the RMI, it was implicitly included in the category of
nuclear-weapon States that were “failing to fulﬁl their international obli-
gations to carry out multilateral negotiations on achieving sustainable
nuclear disarmament”.

   26. In my view, the “Nayarit Declaration” quoted above did mention
with suﬃcient clarity both the obligation on nuclear-weapon States to
negotiate nuclear disarmament as well as the legal basis upon which the
Marshall Islands based that obligation, namely, “Article VI of the
Non-Proliferation Treaty and customary international law”. In this
regard, I disagree with the ﬁndings of the majority in paragraphs 45-48 of
the Judgment. I do not subscribe to the view that in the context of these
multilateral conferences, it was necessary for the Marshall Islands to sin-
gle out and name each of the nine nuclear States in order for it to validly
express its claim against them. A distinction ought to be drawn between a
purely bilateral setting where the applicant must single out the respon-
dent, and a setting involving multilateral exchanges or processes such as
the present case, where it is well known throughout the international
community, that amongst the over 191 member States to the NPT, only

    59 MMI, p. 9, para. 16; CR 2016/2, pp. 32-33, para. 19 (Condorelli), citing Marshall

Islands statement, Second Conference on the Humanitarian Impact of Nuclear Weapons,
Nayarit, Mexico, 13-14 February 2014.
    60 Since the NPT entered into force in 1970, India, Pakistan and North Korea have all

conducted nuclear tests, although they are not party to the NPT. North Korea withdrew
from the NPT in 2003. Israel is also widely presumed to have nuclear weapons although it
maintains a policy of deliberate ambiguity in this regard. NPT States that possess nuclear
weapons include the permanent ﬁve on the United Nations Security Council, namely
China, France, Russia, United Kingdom and the United States. (Belgium, Germany, Italy,
the Netherlands and Turkey are NATO nuclear-weapon sharing States.)

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

nine possess nuclear weapons. To insist that the Marshall Islands should
in its statements have identiﬁed each of these States by name and men-
tioned the conduct of each one that it objects to, is to apply form over
substance. Similarly, the fact that the Nayarit Declaration was made at a
conference the subject of which was the “broader question of the human-
itarian impact of nuclear weapons” does not detract from the clarity of
that statement nor of the Marshall Islands protestation against the con-
duct of the nuclear-weapon States expressed therein. That argument too
is unduly formalistic.

  27. Furthermore, it has been argued that India’s public statements
both domestically and at international fora demonstrate its commitment
to negotiations towards nuclear disarmament. True as that may be, for
the purposes of demonstrating the existence of opposing views, the Mar-
shall Islands has made it clear that it has no issues with India’s rhetoric in
this regard. Its opposition is with regard to India’s failure to pursue in
good faith those obligations. Again, without prejudging the issue of
whether or not India’s nuclear policy is in breach of its international obli-
gations, the above facts clearly demonstrate that there is a course of con-
duct by one of the Parties (India) to achieve its own interests, which the
other Party (Marshall Islands) meets by protest, thus crystalizing the dis-
pute between the Parties.

   28. I have also taken into account the Parties’ conduct after the critical
date of 24 April 2014, which in my view, conﬁrms a pre-existing dispute.
In its Letter ﬁled on 6 June 2014, India asserts that the Court lacks juris-
diction to entertain the Applicant’s claims as they fall outside the scope of
its optional clause declaration and are inadmissible 61. In addition, India
reiterates its own unique stand on nuclear disarmament, stating :

       “it is well-known that India is committed to the goal of a nuclear-
       weapon-free world through global, veriﬁable and non-discriminatory
       nuclear disarmament. India believes that this goal can be achieved
       through a step-by-step process underwritten by a universal commit-
       ment and an agreed global and non-discriminatory multilateral
       framework. It is also well-known that pending global nuclear disar-
       mament, India is committed for reasons of national security and self-
       defence to building and maintaining a credible minimum nuclear
       deterrent.” 62 (Emphasis added.)

  61   MMI, Ann. 3: Letter of India of 6 June 2014, paras. 4-5.
  62   Ibid., para. 2.

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

   29. Thus while both Parties are at least in nominal agreement regard-
ing the desirability of a nuclear-free world, they have diﬀerent notions
regarding how and when to achieve that goal. Both Parties hold opposing
views on certain key issues. First, they disagree on the existence of an
obligation under customary international law to negotiate nuclear disar-
mament and on whether India has breached that obligation 63. Secondly
they hold opposing views regarding the legality of India’s maintenance
and improvement of a nuclear arsenal for “defense purposes” and whether
it is necessarily incompatible with the alleged international obligation to
negotiate nuclear disarmament 64. Thirdly, the Parties disagree on the
nature of the alleged obligation to disarm under international law. While
the Marshall Islands considers that customary international law requires
States possessing nuclear weapons to disarm, India considers that there is
no such obligation under customary international law and that invoking
them is only a thinly veiled attempt by the Marshall Islands to impose
upon India the obligations established in the NPT, a treaty that it has
systematically rejected 65. India described the Marshall Islands’ approach
as “an abuse of process” 66. Without prejudging any of the above ques-
tions (all of which are issues to be addressed at the merits stage), this
divergence of opinions conﬁrms the existence of a dispute for the pur-
poses of determining the Court’s jurisdiction.

  63 CR 2016/1, p. 31, para. 7 (Condorelli), citing paragraphs 2, 6 and 64 of the RMI

Application; CR 2016/1, pp. 31-32, para. 8, citing paragraph 2 of the Memorial of RMI.
    64 CMI, Ann. 6: Statement by Salman Khurshid, Minister of External Aﬀairs of India,

at the High-Level Meeting of the General Assembly on Nuclear Disarmament, 68th United
Nations General Assembly in New York, 26 September 2013.
    65 For India’s consistent refusal to sign and ratify the NPT see: CMI, p. 14, para. 22

citing Documents on India’s Nuclear Disarmament Policy, Volume II, Eds. Gopal Singh
and S. K. Sharma for statements made by India’s negotiator V. C. Trivedi at the Confer-
ence of the Eighteen-Nation Committee on Disarmament of 12 August 1965, pp. 582-596;
15 February 1966, pp. 612-627; 10 May 1966, pp. 638-646; 23 May 1967, pp. 687-700; and
28 September 1967, pp. 706-718; Statement by External Aﬀairs Minister, M. C. Chagla in
Parliament on 27 March 1967, pp. 685-687; Statements by Ambassador Azim Husain in
the Eighteen-Nation Committee on Disarmament on 27 February 1968, pp. 724-730 and
in the Political Committee of the United Nations on 14 May 1968, pp. 741-755, (CMI,
Anns. 13-20). On 5 April 1968, Prime Minister Indira Ghandi highlighted the shortcom-
ings of the NPT and stated that “we shall be guided entirely by our self-enlightenment
and the considerations of national security”, statement by Prime Minister Indira Ghandi,
Lok Sabha, 5 April 1968, pp. 739-741; see CMI, Ann. 21.

   66   CR 2016/4, p. 21, para. 9 (Salve).

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

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

   30. Hitherto, the Court has not made it a legal prerequisite for an
applicant to prove that before the application was ﬁled, the respondent
State “was aware or could not have been unaware that its views were
positively opposed by the applicant”, before making a determination that
a dispute exists (Judgment, para. 38). This new test is not only alien to the
established jurisprudence of the Court but also directly contradicts what
the Court has stated in the past and with no convincing reasons. On every
occasion that the Court has had to examine the issue of whether or not a
dispute exists, it has emphasized that this is a role reserved for its objec-
tive determination 67 (not that of the parties) and that that determination
must involve an examination in substance and not form, of the facts or
evidence before the Court 68. For example, the Court has categorically
stated in the South West Africa cases that :
        “A mere assertion is not suﬃcient to prove the existence of a dispute
      any more than a mere denial of the existence of the dispute proves its
      non-existence. Nor is it adequate to show that the interests of the two
      parties to such a case are in conﬂict. It must be shown that the claim
      of one party is positively opposed by the other.” 69

Also in Nicaragua v. Colombia the Court stated 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 con-
dition [for the existence of a dispute]” 70.
   31. By introducing proof of “awareness” as a new legal requirement,
what the majority has done is to raise the evidentiary threshold that will
from now on require not only an applicant, but the Court itself, to delve
into the “mind” of a respondent State in order to ﬁnd out about its state
of awareness. In my view, this formalistic requirement is not only prob-
lematic but also directly contradicts the principle in Nicaragua v. Colom-
bia quoted above, since the surest way of ensuring awareness is for an
applicant to make some form of formal notiﬁcation or diplomatic pro-
test. The test also introduces subjectivity into an equation previously
reserved “for the Court’s objective determination”.

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

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

Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), pp. 84-85, para. 30.
   69 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

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

ragua v. Colombia) Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32, para. 72.

215

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

  32. It is also pertinent to note that paragraph 73 of Nicaragua v.
Colombia cited by the majority at paragraph 38 of the Judgment as the
basis for the new “awareness” test, merely sets out the factual assessment
conducted by the Court to determine whether a dispute existed in that
case 71, and not the legal test applicable. In paragraph 72 of Nicaragua v.
Colombia, immediately preceding, the Court had just observed that,

      “although a formal diplomatic protest may be an important step
      to bring a claim of one party to the attention of the other, such a
      formal protest is not a necessary condition . . . in determining whether
      a dispute exists or not, ‘[t]he matter is one of substance, not of
      form’” 72.
It is clear that the Court in that case was not prepared to turn a speciﬁc
factual ﬁnding into a formalistic legal requirement of prior notiﬁcation.
In my view, it would be inappropriate to turn what was clearly a factual
observation into a rigid legal test that was rejected by the Court in that
case.
   33. Similarly, Georgia v. Russian Federation 73, also cited in the Judg-
ment at paragraph 38 in support of the majority view, is inapplicable and
should be distinguished. That case involved the interpretation and appli-
cation of a speciﬁc treaty (the Convention on the Elimination of All
Forms of Racial Discrimination) to which both Georgia and Russia were
party. Article 22 of that treaty (the compromissory clause conferring
jurisdiction on the Court) has an express requirement that prior to ﬁling
a case before the Court, the contending parties must ﬁrst try to settle the
dispute by negotiation or by other processes stipulated in the Conven-
tion 74. It was imperative in that case for the Applicant to prove that prior
to seising the Court, it had not only notiﬁed the Respondent of its claims
but that the two had attempted negotiating a settlement. It was therefore

   71 The exact quotation of paragraph 73 is “Colombia was aware that its enactment

of Decree 1946 and its conduct in the maritime areas declared by the 2012 Judgment to
belong to Nicaragua were positively opposed by Nicaragua”. The applicable legal frame-
work regarding the existence of the dispute is quoted at: Alleged Violations of Sovereign
Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), pp. 26-27, paras. 49-52.
   72 Ibid., para. 72.
   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. 70.
   74 Article 22 of the Convention stipulated that:

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

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

logical that the Respondent formally be made “aware” of the Applicant’s
claim before negotiations could take place. That case is in stark contrast
to the present case where no such compromissory clause exists requiring
prior negotiations or formal notiﬁcation or “awareness”. Accordingly
Georgia v. Russian Federation is, in my view, distinguishable and inap-
plicable as an authority for the “awareness” test.

                              Conclusion

   34. Based on the evidence examined above, my view is that at the date
on which the Application was ﬁled, there existed a dispute between the
Parties concerning the alleged violation, by India, of an obligation under
customary international law to pursue in good faith and bring to a con-
clusion negotiations leading to nuclear disarmament in all its aspects
under strict and eﬀective international control.

                                            (Signed) Julia Sebutinde.

217