New Delhi: The International Court of Justice (ICJ) will deliver its verdict on Wednesday on whether it has jurisdiction to deliberate on the suit brought by the Pacific nation of Marshall Islands against India, Pakistan and the UK for not taking steps to end the nuclear arms race.
The UN’s top judicial body will deliver judgments on the three cases at the Hague’s Peace Palace building at 10 am local time (1.30 pm IST). This is the first time that India has been involved in an ICJ case in 15 years – since Indian government lawyers successfully argued that the world court had no jurisdiction to hear a case filed by Pakistan over the shooting down of its naval aircraft by the Indian Air Force.
In April 2014, the Republic of Marshall Islands had sued all the P-5 countries, as well as India, Pakistan, Israel and North Korea for failing “to pursue in good faith and bring to a conclusion, negotiations leading to nuclear disarmament”.
However, the ICJ only accepted cases against India, Pakistan and the UK as the other six countries had never acceded to the compulsory jurisdiction of the world court. The oral proceedings were held over four days in March this year.
India’s argument objecting to the ICJ’s jurisdiction, as presented by its lawyers in their written and oral proceedings, was four-fold.
First, that there is no dispute between the parties; second, even if the court finds that there is a dispute, it could only be settled if at least all the states possessing nuclear weapons and certainly more than one were parties to the proceedings; this not being the case, the court can only decline to exercise jurisdiction. Third, several reservations to India’s optional declaration under Article 36 (2) bar the court’s jurisdiction; and fourth, that any judgment rendered in these circumstances would be devoid of any concrete practical effect.
The reference to India’s optional declaration was its recognition of ICJ’s jurisdiction in September 1974, but with 12 reservations. Out of the list of 12 exceptions, India has used four in its plea to establish the ICJ’s lack of jurisdiction in the Marshall Island’s case.
“4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;”
India argued here that India’s neighbourhood, which has a history of proliferation, has impacted its national security. Therefore, India’s measures of self-defence, which extend to measures and military strategies which in its perception are necessary to deal with nuclear threats with which it may in future be confronted, are covered by the reservation.
“5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the court;”
Marshall Islands acceded to ICJ on April 24, 2013 and then filed the application instituting proceedings on April 24, 2014. India argued that this chronology showed that Marshall Islands filed the application one day before the 12-month period expired.
“7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;”
India claimed that Marshall Islands was trying to bypass this reservation by stating that its case was only based on customary law. However, India argued that Marshall Islands’ claim cannot be dealt by the court without interpreting Article VI of the Nuclear Non-Proliferation Treaty (NPT).
“11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the court hereafter.”
India had argued before that the Indian objection to NPT dates back to 1968, before New Delhi filed its optional declaration recognition in 1974.
India’s argument at the court was represented by former external affairs ministry additional secretary and legal adviser, Neeru Chadha and joint secretary (disarmament and international affairs) Amandeep Gill, Supreme Court advocate Harish Salve and eminent French international affairs lawyer, Alain Pellet.