Marshall Islands is a small state covering an area of 70 square miles and having population of less than sixty thousand people. It is located in the Pacific Ocean and was occupied by the United States in the Second World War. After the establishment of the United Nations, the Security Council, through its Resolution 21 of 1947, placed it under the trusteeship system, and designated the US as the Administering Authority. Later, in 1979, it achieved self-governing status, which was further modified in 1986, when it was given full sovereignty. Since 1991, it is a member of the UN.
What links this little country to the legal proceedings at the International Court of Justice (ICJ) is the fact that the country remained a testing ground for the nuclear weapons of the US till 1958, although in 1956 the US Atomic Energy Commission had regarded it as the ‘most contaminated place in the world’. As many as 67 nuclear weapons of the US were tested in the Marshall Islands; with a total yield of 108,496 kilotons—over 7200 times more powerful than the atomic weapons used during the World War II. It is said that the largest atmospheric nuclear test, codenamed “Castle Bravo,” was conducted by the US at Marshall Islands. Besides, from 1956 to 1998, an amount $759 million was paid by the US to the Marshall Islanders in compensation for their exposure to the US nuclear weapons’ testing. Aggrieved by the testing, the country instituted legal proceedings against Pakistan and eight other nuclear-capable states — China, North Korea, the United Kingdom, the United States, India, France, Russia and Israel — on 24th April 2016. The case was decided on 5th October 2016. The instant write-up will briefly present the claim of Marshall Islands, the decision of the Court and the reasoning of the judgement.
Claim of the Marshall Islands
The claim of the Marshall Islands was that the nine states, including Pakistan, having nuclear prowess were under the international legal obligation to negotiate in good faith treaties to ensure nuclear disarmament. Marshall Islands rested its claim on Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 1968, which reads:
“Each of the Parties to the Treaty undertakes 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.”
The claim stated that Article VI of the NPT imposed an international legal obligation on the nine states to negotiate nuclear disarmament.
Secondly, the claim was fortified by paragraph 99 of the Advisory Opinion of the ICJ on the Legality of the Threat or Use of Nuclear Weapons that was handed down in 1996, wherein the obligation to negotiate in good faith a nuclear disarmament (as mentioned in Article VI of the NPT) was fully endorsed. Since 1996, the UN General Assembly, in follow-up to the Advisory Opinion of the ICJ, has passed resolutions calling upon all the states to fulfil their legal obligation of negotiating nuclear disarmament.
Thirdly, the claim stated that two statements bound Pakistan to fulfil its legal obligation. These were:
a. The first statement by Pakistan’s Foreign Minister on 26th September 2013 at the High Level Meeting of the General Assembly where he urged all to secure disarmament;
b. The second statement by the Representative of the Marshall Islands on 13th February 2014, bound Pakistan, when in the Second Conference on the Humanitarian Impact of Nuclear Weapons, it spelled out to all the countries its claim and urged them to enter into multilateral negotiations to secure nuclear disarmament. To Marshall Islands, this second statement constituted sufficient notice to all states (including Pakistan) to fulfil their international legal obligations, and their failure to do so exposed them to the instant legal proceedings.
By invoking declaration under Article 36, Paragraph 2 of the Statute of the ICJ, the Court found that it had jurisdiction in the matter to hear the cases against Pakistan, India and the UK. Accordingly, it placed the cases of the three countries at the Court’s General List and heard these cases at length. In the hearings, Pakistan was represented in the ICJ by Mr Ahmer Bilal Soofi, Advocate of Supreme Court of Pakistan, Mr Moazzam Ahmed Khan and Ms Iffat Imran Gardezi, Ambassadors of the Islamic Republic of Pakistan to the Kingdom of the Netherlands. The ICJ decided, by nine votes to seven, the cases in favour of Pakistan, India and the UK. It did not list the cases against the US, China, Israel, North Korea, Russia and France on the basis of jurisdiction.
The reasoning of the ICJ can briefly be examined by looking at three chief issues that were central to the opinions of the judges of the Court. These issues were:
The cases of Pakistan, India and the UK were heard by the ICJ on the basis of their declarations under Article 36(2) of the ICJ Statute which reads:
“The State Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.”
All three states objected to the jurisdiction of the Court on the ground that there was no international obligation upon them and that there was no dispute between them and the Marshall Islands. In case of India, an additional point was that it took exception to the compulsory jurisdiction on the basis of its 1974 reservation of ‘self-defence’ to the declaration under Article 36(2) of the ICJ Statute. The extent of the reservation has been a matter of debate amongst the India’s international law experts. For instance, Mr Shashank P. Kumar of National Law University, Jodhpur, India, has claimed in his piece entitled “The Marshall Island’s Case against India’s Nuclear Weapons Programme at the ICJ” (posted on the website of European Journal of International Law) that the reservation was applicable in the instant case, and that, in presence of the reservation, the ICJ should not have invoked the compulsory jurisdiction clause against India. The ICJ, however, thought otherwise. As far as the six other states (i.e. Israel, China, North Korea, the US, Russia and France) are concerned, they had not made Article 36(2) declarations, therefore, cases brought against them were not listed. The ICJ, however, urged them to accept its jurisdiction forum prorogatum (propagated jurisdiction rule). It may be noted that the ICJ assumes jurisdiction on seven grounds: the legal basis of these is the Statute of the ICJ (which is an Annex to the UN Charter) and the Rules framed under Article 30 of the Statute. These seven occasions on which the ICJ can assume jurisdiction are:
(I) Special Agreements specifically for Jurisdiction of the ICJ (Article 36(1));
(ii) Cases Provided for in the Treaties and the Conventions (Article 36(1));
(iii) Compulsory Jurisdiction (based on Declarations under Article 36(2));
(iv) Forum Propogatum (propagated jurisdiction — that a state may accept jurisdiction after an application has been made to the ICJ against it);
(v) Decision of the Court that it has jurisdiction (Article 36(6));
(vi) Interpretation of Judgement (Article 60 of the ICJ Statute); and
(vii) Revision of Judgement (Article 61(1)).
B. Article VI Obligation (of the NPT)
Pakistan contended that it was not a party to the NPT, therefore, it was not under any international legal obligation to enter into negotiations in good faith on nuclear disarmament. The international obligation aspect was not much expanded in the opinions of the judges as the discussion about ‘dispute’ and ‘international legal dispute’ eclipsed their opinions.
A common point of averments by the UK, Pakistan and India was that there was no dispute between them and the Marshall Islands. The judges of the ICJ, therefore, discussed in detail the concept of ‘dispute’. Almost all of the judges reproduced the definition of a dispute as ‘a disagreement on a point of law or fact, a conflict of legal views or of interests’ between parties (Mavrommatis Palestine Concessions, Permanent Court of International Justice, 1924). Then the judges moved on to elucidate the ‘existence of dispute’ by invariably referring to the dictum laid down in the South West Africa Case, ICJ, 1962 that a dispute exists if it is ‘shown that the claim of one party is positively opposed by the other’. The majority of the judges found that there was no dispute between the parties. Contrary to this view of the majority that included an Indian judge Mr Dalveer Bhandari, was the view of a scholar judge of the ICJ, Mr James Crawford, who has been a professor of the international law at the University of Cambridge. He vehemently disagreed with the view of the majority and held that the ICJ was, for the first time in its history, imposing a new requirement of ‘objective awareness’ of the subsistence of a dispute between the parties, which was a ‘demanding threshold’ and was not backed by the precedents of the ICJ. He stated that the threshold of showing that there exists a dispute between the parties has been a low one throughout the jurisprudence of the Court. His views, though eloquently expressed, did not impress other judges and the majority opinion was not shaped by his views.
The net result of the majority view is that the ICJ’s jurisdiction, which is already considered very restrictive, will further be, apparently, contracted, but this is to be finally seen in prospective litigation of the ICJ. For Pakistan, the case augured well as, after a long time, Pakistan has been able to successfully defend its legal case at an apex global legal forum.