New Delhi: Ruling 9-7 in India’s favour, the International Court of Justice on Wednesday accepted the Indian argument that it had no 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.
Accepting the first of India’s arguments on jurisdiction, the ICJ ruled that there being no legal dispute between the Marshall Islands and India on the issue of nuclear disarmament, the court had no locus standi to proceed. Ruling in parallel cases, the court also declined to proceed with the Marshall Islands’ case against Pakistan and the UK.
The judgment of the UN’s top judicial body in this case 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.
The existence of a legal dispute between two states is a precondition for the court to take up a case involving them, said the president of the court, Judge Ronny Abraham of France. One of the ICJ’s 15 permanent judges is Indian – Dalveer Bhandari, a former judge of the Supreme Court.
India, in its written and oral submissions to the ICJ had cited earlier rulings of the court on this point, noting, in particular, that
“it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. 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.”
Since the Republic of Marshall Islands (RMI) had moved the ICJ on the need to speed up the process of global nuclear disarmament, India stressed that it too had been fighting for the same objective so the question of a dispute between the two countries did not arise. Specifically, India argued that the facts in the present case “speak for themselves”:
“As the RMI itself acknowledges, India has always been a strong supporter of the necessity of nuclear disarmament;
“RMI has, contrary to its position in the application, never sought to engage in bilateral consultations with India”
After outlining the various initiatives India had taken to further the cause of global nuclear disarmament, the Indian side had drawn the court’s attention to the lack of support the Marshall Islands had extended to these Indian moves over the years:
“Even more strikingly, India is the only state possessing nuclear weapons that co-sponsors and votes for the UN General Assembly resolution on “Follow-up to the advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons”, which “calls upon all states to immediately commence multilateral negotiations leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.” It is revealing that for ten years (2003-2012) prior to the RMI contemplating this recourse to the ICJ, while India consistently voted for and sponsored this resolution, the RMI voted against the resolution or abstained nine times and voted in favour only once. This shows not only the inconsistency of the RMI’s belief in multilateral negotiations leading to nuclear disarmament but also the artificiality of its claim in this case. (emphasis added)
In ruling that it lacked jurisdiction, the ICJ relied on the absence of any material that could establish that there was a dispute between the two countries and that India was made aware of it by the Marshall Islands:
“(None of the) statements that were made in a multilateral context by the Marshall Islands offered any particulars regarding India’s conduct. On the basis of such statements, it cannot be said that India was aware, or could not have been unaware, that the Marshall Islands was making an allegation that India was in breach of its obligations. In this context, the conduct of India does not provide a basis for finding a dispute between the two States before the Court.”
The court refused to look into India’s argument that the voting record on various disarmament resolutions at the UN would establish the insincerity of the Marshall Islands’ claims, noting:
“The wording of a resolution, and votes or patterns of voting on resolutions of the same subject-matter, may constitute relevant evidence of the existence of a dispute in some circumstances, particularly where statements were made by way of explanation of vote. However, some resolutions contain a large number of different propositions; a state’s vote on such resolutions cannot by itself be taken as indicative of the position of that State on each and every proposition within that resolution, let alone of the existence of a legal dispute between that state and another state regarding one of those propositions.”
Since questions about “the existence of and extent of customary international law obligations in the field of nuclear disarmament, and India’s compliance with such obligations” pertain to the merits of the Marshall Islands case – over which the ICJ had no jurisdiction – the court said it was not necessary to deal with the rest of India’s objections.
In his separate but concurring judgment, Judge Bhandari traced the history of India’s commitment to disarmament at the UN, concluding:
“The RMI and India have been chasing the same goal of disarmament and how the world can become free of nuclear weapons. Both countries are making serious efforts in this direction, therefore by no stretch of the imagination can it be concluded that there is any dispute between the RMI and India.”
All seven judges who voted against the judgment gave separate opinions of which Judge Cancao Trindade’s – at 82 pages – was the longest and most passionate, arguing that the inherent evil of nuclear weapons and the need to rid the world of the danger posed by them was the overriding legal principal at stake. Judge Tomka, who also disagreed with the majority on the question of the existence of a dispute between India and Marshall Islands, nevertheless concurred with the absence of the ICJ’s jurisdiction on the grounds that the other nuclear weapon states were not being similarly called to account:
“To my sincere and profound regret, I have to conclude that the absence of other nuclear powers in the proceedings prevents the Court from considering the Marshall Islands’ claims in their proper multilateral context, which is also determined by the positions taken by those other powers, and thus renders the Application inadmissible. For this reason I have joined those of my colleagues who have concluded that the Court cannot proceed to the merits of the case.”
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 arguments objecting to the ICJ’s jurisdiction, as presented by its lawyers in their written and oral proceedings, were four-fold.
First, that there was 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 has to 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.