David V. Goliath – The Republic of Marshall Islands’ Day in Court

Source: UN Photo/ICJ/Jeroen Bouman.

The Republic of Marshall Islands (‘RMI’) is an island nation, located in the Pacific Ocean, with a population of 68,840 people. On the 24th April 2014, the RMI filed a dispute before the International Court of Justice (‘ICJ’), against 9 states, namely, the United States, United Kingdom, France, Russia, China, India, Pakistan, Israel, and North Korea for violating their nuclear disarmament obligations under customary international law and the Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT’). The submission of this dispute to the ICJ is a reaffirmation of the principle of sovereign equality of states. The purpose of this article is to provide an overview of the proceedings and what might be the possible outcome of RMI’s case.

As is well known, the jurisdiction of the ICJ is based upon the consent of parties. Article 36(1) of the ICJ Statute provides that jurisdiction may be founded on the basis of either a special agreement (known as a compromis) or through matters provided for in any other treaty or convention. Article 36(2) provides that the compulsory jurisdiction of the ICJ in respect of certain types of disputes may be accepted by any country by way of a declaration. RMI has claimed that the jurisdiction of the ICJ in the case of India, Pakistan and UK originates from the declarations made by them accepting the compulsory jurisdiction of the ICJ.

In the case of the United States, France, Russia, Israel and N. Korea, RMI has invited these nations to accept the jurisdiction of the ICJ on the basis of ‘forum prorogatum’. The doctrine essentially states that in case a country has not accepted the jurisdiction of the ICJ prior to the institution of an application, it may do so after the application has been filed and attract the jurisdiction of the ICJ. So far, only China has responded and refused to accept the jurisdiction of the ICJ while the United States, France and Russia have not yet replied. It seems unlikely that they would be willing to permit the ICJ to adjudicate the matter. Further considering that Israel neither confirms nor denies its nuclear arsenal while North Korea is generally considered a renegade state, it would seem that the case against these 5 nations is essentially dead in the water.

However, whether the ICJ has jurisdiction in the case of UK, India and Pakistan would depend upon whether the subject matter of the dispute has been excluded by way of a reservation to their declarations. Whilst interpreting these declarations it is essential to note that the ICJ in the (Fisheries Jurisdiction Case (Spain v. Canada) ¶ 46) held that the ‘“regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties”. It further noted that a reservation to a declaration of acceptance of the compulsory jurisdiction of the ICJ is to be interpreted in a natural and reasonable way with appropriate regard for the intentions of the reserving State and the purpose of the reservation ( 54).

In response to RMI’s application, India, on 6 June 2014, informed the ICJ, inter alia, that “India . . . considers that the International Court of Justice does not have jurisdiction in the alleged dispute” and by a subsequent letter informed the Court that it would not attend a meeting to fix the procedure for the hearings. The ICJ, taking cognizance of India’s objection on the 16th June 2014, ordered that the written pleadings shall first be addressed to the question of the jurisdiction of the ICJ. By September 15th 2015, the Counter Memorial should have been filed by the Republic of India.

India first accepted the ICJ’s compulsory jurisdiction in 1959, with 6 reservations. This declaration was replaced in 1974, by the current declaration (which is relevant for this case) which increased the number of reservations to 12.  In the present matter, two of these reservations are important. Point 4 of the declaration specifies that “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;”. The present matter impugns India’s policy of quantitatively and qualitatively increasing and improving its nuclear arsenal. India’s nuclear weapons programme is considered to be a motivated in a major part by its defeat in the 1962 war against China. Coupled with its continuing tensions with Pakistan it may well be argued that India’s nuclear programme is a dispute connected with a situation of hostility.

The ICJ was seized of a similar jurisdictional issue in the case of France v. New Zealand, concerning nuclear tests conducted by France. However, the matter was rendered infructuous and therefore the ICJ was not required to adjudicate on the matter. Regardless, the observations of the ICJ and its members would have a persuasive value.

The French Declaration provided that the ICJ shall not have jurisdiction over “. . . disputes arising out of a war or international hostilities, disputes arising out of a crisis affecting national security or any measure or action relating thereto, and disputes concerning activities connected with national defence..” Judge De Castro noted that the phrase ‘national defence’ is wide in meaning and that “… National defence also includes the possibility of riposting to the offensive of an enemy. This is the idea behind the “strike force”. The expression used (“concerning activities connected with . . .”) rules out any restrictive interpretation.” [p. 127] India has similarly included the phrase ‘other similar or related acts’ and ‘resistance to aggression’ which would in other words be national defence, and it is likely that this interpretation shall be used by India in support of its case.

After examining France’s conduct and the historical context of its declaration, Judge De Castro concluded that there existed a clear intention to exclude the jurisdiction of the ICJ in disputes pertaining to nuclear testing. In a similar manner, India may place evidence to demonstrate that at the time of making its declaration, it had specifically considered and sought to exclude matters related to its nuclear programme.

The other reservation that is relevant is point 5, which states that 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. RMI has been a member of the United Nations since 17th September 1991, and has consequently been a member of the ICJ as well.  Despite this, RMI only accepted the compulsory jurisdiction of the ICJ on 24th April 2013. The application was filed exactly one year later to the date thus removing the dispute from the second part of the reservation. Despite this, it may be argued that RMI has only accepted the jurisdiction of the ICJ for the purpose of the present dispute. As a result, India’s declaration would apply and exclude the jurisdiction of the ICJ. The evidence required to establish such an intention would however be tricky.

Therefore, India might still be able to avoid the dispute being adjudicated by the ICJ.

Pakistan has also objected to the jurisdiction of the ICJ, which has on 10th July 2015 ordered that written pleadings shall be limited to the question of jurisdiction and admissibility. The United Kingdom for its part has raised preliminary objections in accordance with Article 79 of the Rules of the Court. Article 79 provides that any objection by the respondent to the jurisdiction of the ICJ or to the admissibility of the application can be raised as a preliminary objection and according to Article 79(5) the proceedings on merits shall be suspended. The ICJ shall hear arguments on the matter and by judgement shall either uphold the objection, reject it, or declare that the objection does not possess an exclusively preliminary character. If the preliminary objection is not of an exclusively preliminary character, the matter shall proceed as earlier. However, in the case of Pakistan and the UK, their declarations provide no such scope for excluding the dispute and it is likely that their cases shall proceed to the stage of merits.

In this matter, the ICJ shall have to grapple with some very pertinent questions as to the scope of customary law as well as how it may be established by way of evidence. Moreover, the ICJ must deal with certain questions of judicial propriety. In Cameroon V. United Kingdom, the ICJ held that If the Court were to proceed and were to hold that the Applicant’s contentions were all sound on the merits, it would still be impossible for the Court to render a judgment capable of effective application.’ [P.33] It further noted that ‘The Court’s judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations.’ Even if the ICJ were to declare that the UK, Pakistan and India are in violation of their obligations to conclude negotiations leading to nuclear disarmament, such a judgment would not bind the parties with whom such negotiations must be conducted as they are not present before the ICJ. In such an event, an order mandating negotiations would be entirely redundant.

While RMI probably recognizes the futility of this case, clever lawyering on its behalf so far indicates that this case has the wider goal of creating publicity for the cause and gathering momentum towards a greater consensus amongst the non-nuclear nations. The ICJ is thus being used as a means of emphasizing a political message. It must avoid such an exposure while remaining within the four corners of the law and ensure that it maintains its dignity as a judicial entity.

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