Examining the ICJ’s Attitude towards Legality of Nuclear Weapons in light of the Present-time Indo-Pak Tension

The Republic of Marshall Islands’ claim for nuclear-disarmament against 9 countries, which provided a great opportunity to the International Court of Justice (“ICJ”) to break its prolonged silence on the issue pertaining to legality of threat or use of nuclear weapons, was set aside through the citation of a procedural excuse. This amounts to saying that the bench of the ICJ, with the majority of its judges coming from nuclear-armed states or their allies, conveniently denied delving into the merits of the claim by finding lack of jurisdiction. This post scrutinizes the ICJ’s stance with respect to the issue of legality of nuclear weapons vis a vis the current relations between two nuclear-armed countries, viz. India and Pakistan.

ICJ Conveniently Turning a Deaf Ear to the Issue of the Legality of Nuclear Proliferation

While numerous opportunities have been afforded to the ICJ to present its views on the issue at hand, it has conveniently refused to delve into any substantive discussion in this regard. To begin with, in 1974 (Nuclear tests cases), when the ICJ was required to lend an ear to the claims of Australia and New Zealand against French nuclear tests, it refrained from doing so merely because France had “announced” that it will not be carrying any further atmospheric nuclear tests.

Further, in 1996, an urgent advisory opinion was sought from the Court and this advisory opinion (Legality of the Threat or Use of Nuclear Weapons) could be summarised in the following excerpt. Therein, the Court was led to observe that

in view of the current state of international law and of the elements of fact at its disposal, [it] 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”.

A perusal of the foregoing suggests that the Court has, despite being pressed for an answer, escaped from the issue. In fact, the Marshall Islands case, viz. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, also has been recognised, by scholars and professors (see Schmitz, Awmee p. 82, Bianchi p. 82) as a similar event. In this case, the Court, finding the absence of a dispute under Article 36(2) of its Statute, found that it lacks jurisdiction to hear the case. Precisely like the other two instances (i.e. in 1974 and 1996), the question remained unanswered after this case.

Procedural Excuses to Escape the Merits of the Case

Admittedly, consent forms the basis of the ICJ’s jurisdiction and any reservations made by the countries with respect to the disputes covered under Article 36(2) of the ICJ Statute would be decisive when the question is that of the existence of the Court’s jurisdiction. An insight into the written submissions of India in the Marshall Islands case and the dissenting opinion of Judge De Castro in the Nuclear Tests cases would go on to demonstrate how nuclear-armed countries possess abundant procedural challenges in the form of reservations, which could be upheld by the ICJ to continue what it has been doing.

For instance, for India, the compulsory jurisdiction of the ICJ is subject to as many as 11 reservations Das & Bhadada p. 555. This post asserts that, specifically, its reservations pertaining to disputes on situations of hostilities, armed conflicts, actions taken in self-defence etc. and disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case are always going to be applicable in such cases. Which amounts to saying the ICJ can conveniently uphold India’s procedural challenge to avoid the merits altogether.

Now, the availability of such “procedural excuses” has become a bigger threat than ever because of the aggravating differences between India and Pakistan.

The Dispute over the Territory of Kashmir

During the partition of the two countries in 1947, Pakistan had Muslims in majority and India was then predominantly occupied by the Hindus. Despite this, the then Prince allocated the Muslim-majority territory of Kashmir to India (reported here). Ever since, the two neighbouring countries have not enjoyed the best relations, particularly, due to their claims over the territory of Kashmir (Id.).

In August 2019, India reorganised Kashmir into two Union-territories, thereby ending its partial autonomy over the same (reported here). This was followed by an alarming statement made by the Prime Minister of Pakistan, Imran Khan: “There is a potential that two nuclear-armed countries will come face to face at some stage”. As can be observed, the relations between the two countries right now are not very cordial and this is quite disturbing; and it is even more so, once we understand the stances of the two neighbours with respect to nuclear proliferation.

India’s Persistent Objection to the NPT System

The Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) places an obligation on its member states to refrain from dealing in or developing nuclear weapons under Article II. Additionally, Article VI of this treaty requires the members to pursue, in good faith, negotiations pertaining to “cessation of the nuclear arms race”. Various scholars have argued that these treaty obligations can be extended to non-member states as well, because they have elevated to the status of international customary law.

Even if we were to assume that there is a customary obligation for India in this regard, it could still be argued that India has been a persistent objector to this custom. A persistent objector is a country which does not adhere to a custom and its repudiation of the same is implicit from its actions and attitude towards it. In casu, India has, conspicuously, disregarded the custom in question. This conclusion can be derived from the following happenings. India has not only conducted nuclear tests like Pokhran I (1974) and Pokhran II (1998), but also consistently voted against joining the NPT. It has, in fact, voted against the General Assembly Resolution 52/38-K, operative paragraph l as well, which urged non-NPT parties to join the treaty. Additionally, India’s not signing the Comprehensive Nuclear Test-Ban Treaty (“CTBT”) and refusal to engage in the UN Conference pertaining to the Treaty on the Prohibition of Nuclear Weapons (2017) fortify its persistent objection.

This persistent objection becomes a massive concern given the nuclear capacity of India and the silence of the ICJ with respect to the status of such countries. Accordingly, the ICJ needs to, at the earliest, break the silence on this issue, as precaution and prevention would certainly be preferred to resurrection.

Pakistan’s Unsettling Attitude towards the Issue and the Possible Consequences

Having acknowledged the persistent objection of India, the post briefly assesses the status of Pakistan, which is nothing short of dreadful. Herein, it needs to be understood that while the former follows a “no first use” policy, the latter has emphatically denied observance of the same. This denial needs to be seen in light of the fact that Pakistan has refused to sign the NPT, the CTBT or even the 2017 treaty until and unless India signs it.

The tension between these two unregulated nuclear-armed neighbours, absent any definite law in respect of the issue at hand, poses a critical threat for the globe. Accordingly, it is not only prudent but also requisite on the part of the ICJ to step in and address the non liquet as to the legality of use or threat of nuclear weapons.

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