By Harisankar K. Sathyapalan*
On October 5, a judicial endeavor by a small Pacific island to mould a nuclear-zero world by holding the atomic-armed states for their alleged violations of international law came to naught at the International Court of Justice (ICJ). The world court found that it lacked jurisdiction to proceed to the merits due to the absence of a legal dispute in a series of cases brought by the Republic of Marshall Islands (RMI), concerning the obligations pertinent to nuclear disarmament and cessation of nuclear arms race, against nine countries which are believed to have nuclear warheads ready to be used. Apart from the distinct cases against India and Pakistan, the claimant brought lawsuits on the same matter against the P5 countries of the UN Security Council – USA, Russia, UK, France and China – and two relatively new nuclear powers namely Israel and North Korea. A separate litigation against the United States is now awaiting an appellate determination in the US after being thrown out by a domestic federal court in February last year. While the ICJ denied the hearing of cases against India, Pakistan and the UK on substantive issues, the remaining six countries did not participate in the judicial proceedings on the basis of their non-acceptance of the court’s compulsory jurisdiction under Article 36 (2) of the statute of ICJ. It is still baffling to see why RMI proceeded to move on a contentious case route of bringing all nuclear powers to court when there were indisputable jurisdictional obstacles.
Although the root of the matter lies in the 67 nuclear tests carried out by the US causing massive devastation for human life and environment in the territory of RMI during the initial phase of cold war between 1946-1958, the island nation’s earnest endeavor to bring back the campaign against nuclear weapons to public consciousness is worth noting. The present ICJ cases are distinguishable on two counts. Except for the aspect of compulsory jurisdiction due to which three states (India, Pakistan, and the UK) were obliged to participate in the proceedings, RMI crafted the petitions based on the respondent states’ accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Thus, the formulation of the dispute against India, which is a non-signatory to NPT, was based on the alleged failure of its obligations to engage in negotiations in good faith to conclude nuclear disarmament and the cessation of the nuclear arms race at an early date, under customary international law.Despite the existence of a declaration made in 1974 that permits the country to decline court’s jurisdiction in “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence”, India opted to defend its legal position before ICJ showing its respect to international rule of law.
Common rebuttals from combative neighbours
Even though India and Pakistan had faced each other at the ICJ on three previous occasions, this was the first instance where both the countries had seen arguing against a selfsame claimant in an indistinguishable fashion. Interestingly, while the judgments favouring India and Pakistan were approved by a narrow majority of nine votes to seven, the margin of the judgment upholding the objections of UK was tied with eight judges in favor and eight against. All three respondent states contested the jurisdiction, individually, based on the absence of a legal dispute with RMI. The court upheld this argument and remarked: “in order for a dispute to exist, the two sides must hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations”. This requirement is normally met when a respondent was either ‘aware’ or ‘could not have been unaware’ that its views were ‘positively opposed’ by the applicant before launching the lawsuit. Despite the references made by the RMI to their own statements in multilateral fora on nuclear disarmament prior to the date of application, the court did not accept any inference of a direct opposition of views. Further, the court was of the view that any eventuation of a ‘dispute’ during the course of the proceedings through an exchange of statements or claims cannot create a fresh, substantive dispute. Although there are no specific requirements under international law to formally frame a dispute prior to the filing of a claim, it is a basic litigation tactic to, at least, directly communicate their disagreements or allegations to the respondent to ensure that they do not deny their ‘awareness’ about the existence of a dispute. Any international lawyer would be surprised to hear that the RMI did not make any such efforts.
This undoubtedly is a significant finding, as noted by Judge Peter Tomca who dissented in finding of the absence of a dispute between the parties, that “for the first time in nearly a century of adjudication the world court has dismissed a case on the ground that no dispute existed between the parties”. It is unfortunate that the court has departed from its previous flexible position on the question of existence of a dispute by recasting it as a strictly formalistic one, and thereby missing a great opportunity to dissuade the nuke powers from a potential razing and to stop the blue skies of earth appearing grey. Of course, a binding judgment on the merits interpreting Article VI of NPT, which obligates nation states to “undertake to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control”, would have clearly made it to the blanket of customary international law that even the non-signatories would be ordained to comply with.
Synchroneity of the decision
Significantly, the RMI, with a population of not more than an average sporting crowd that an India-Pakistan cricket match would easily attract, hauled the neighboring countries to the world court and succeeded in persuading almost half the quorum of ICJ. While India hailed the judgment as a vindication of its commitment to a ‘responsible and principled approach to nuclear disarmament’, Pakistan acknowledges the decision as a defeat for the detractors of their nuke program. Needless to say, the judgments pertain to a matter that lies at the current geopolitical tensions in the subcontinent. Although the likelihood of a nuke exchange between India and Pakistan is remote, the latest build-up of military activities across the border and, most importantly, the statements from the political and military leadership especially of Pakistan indicating the usage of nukes, justifies this judicial crusade against the atomic arms race. Contrary to India’s no-first-use-policy, Pakistan maintains a first use stance and has threatened India time and again about the use of nuclear weapons. The recurrent skirmishes along the Line of Control and the acrimonious war of words at multilateral platforms, although not a clear opposition of views with respect to the present applicant, demonstrate a nation’s denial to work towards a peaceful global order.
From the standpoint of international law, the principal legal organ of the UN was perhaps ill-equipped to make a binding ruling against the nuclear powers of the world, either individually or collectively. However, this endeavor definitely calls for the international community to resuscitate their obligations to actively engage in the non-proliferation and to ease off the existing nuclear programs. Notwithstanding its rejection of jurisdiction, the court took a sanguine view by reiterating Article VI of NPT which certainly uplifts the international legal obligation of nuclear disarmament. As the court opined in its 1996 advisory opinion on the legality of the threat or use of nuclear weapons, “a country may use the nukes only in an extreme circumstance of self-defense, in which the very survival of a state would be at stake”. The rivalrous nuclear powers should be mindful, in their words and deeds, of the rarity of circumstances expressed by the ICJ.
*Harisankar K. Sathyapalan is a non-resident research fellow with the Centre for Public Policy Research, Kochi and a doctoral candidate in law at the National University of Singapore. Views expressed by the author are personal and does not reflect that of CPPR.
This article was first published in The Wire: What India, Pakistan Can Learn From the Marshall Islands’ Nuclear Disarmament Crusade