Marshall Islands drags India to ICJ on nukes

P. K. Vasudeva

The Government of the Republic of the Marshall Islands, a tiny Pacific Ocean island, last year filed a complaint in the International Court of Justice (ICJ) in The Hague, Netherlands, against seeking initiation of proceedings against nine nuclear weapon countries including India for not pursuing nuclear disarmament and cessation of nuclear arms race. The tiny island republic has a population of about 70,000 and is situated very close to the equator and the International Date Line. The island suffered huge damages during World War II and after it was over, the US used the islands as a testing site for its nuclear weaponry.

The Marshall Islands filed separate applications against nine States (China, North Korea, France, India, Israel, Pakistan, Russia, the United Kingdom and the US) accusing them of not fulfilling their obligations with respect to the cessation of the nuclear arms race at an early date and to nuclear disarmament. While all the nine simultaneous applications relate to the same matter, Marshall Islands distinguishes between those three States (India, Pakistan and the UK), which have recognised the compulsory jurisdiction of the ICJ and the other six– China, North Korea, France, Israel, Russia and the USA – have not done so.

In respect of India, Pakistan and the UK, Marshal Islands invokes the basis for the Court’s jurisdiction -- Article 36, paragraph 2, of its Statute -- referring to the declarations accepting the compulsory jurisdiction of the ICJ made under that provision. In accordance with Article 38, paragraph 4, of the Rules of Court, the application of the Marshall Islands has been transmitted to the governments of India, Pakistan and the United Kingdom.  

In accordance with Article 38, paragraph 5, of the Rules of ICJ, applications of the Marshall Islands have been transmitted to the other six nuclear weapon states concerned. However, unless and until consent is given to the Court’s jurisdiction by these states, there is no case to be entered in the General List.

As for the U.S. complaint, the Marshall Islands is suing both the United States itself, and its President, and various military and civilian departments.  As an initial matter, there should be grave doubts about whether the NPT is self-executing and there are some questions as to whether the U.S. has waived its sovereign immunity for this kind of claim in its own courts. In the lawsuit, the Marshall Islands said that the five original nuclear weapon states — US, Russia, UK, France and China — are continuously breaching their legal obligations under the Treaty. The lawsuits contend that all nine nuclear-armed nations are violating customary international law. The five original nuclear weapon states are parties to the treaty but continue to ignore their obligations. The four newer nuclear-armed states — Israel, India, Pakistan, and North Korea — are not party to the Treaty but are bound by these nuclear disarmament provisions under customary international law.

The NPT is an international treaty whose objective is to prevent the spread of nuclear weapons and their technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament in general and complete disarmament in particular. A total of 191 states have joined the NPT, though North Korea, which acceded to the NPT in 1985 but never came into compliance, announced its withdrawal in 2003. Four UN member states have never joined the NPT: India, Israel, Pakistan and North Korea.

The treaty recognises five states as nuclear-weapon states. Four other states are known or believed to possess nuclear weapons: India, Pakistan and North Korea have openly tested and declared that they possess nuclear weapons, while Israel has had a policy of opacity regarding its nuclear weapons programme.

Several additional measures have been adopted to strengthen the NPT and the broader nuclear nonproliferation regime and make it difficult for states to acquire the capability to produce nuclear weapons, including the export controls of the Nuclear Suppliers Group (NSG) and the enhanced verification measures of the International Atomic Energy Association (IAEA) Additional Protocol.

Critics argue that the NPT cannot stop the proliferation of nuclear weapons or the motivation to acquire them. They express disappointment with the limited progress on nuclear disarmament, where the five authorised nuclear weapons states still have 22,000 warheads in their combined stockpile and have shown a reluctance to disarm further. 

 “Our people have suffered the catastrophic and irreparable damage by these weapons and we vow to fight so that no one else on earth will ever again experience these atrocities. The continued existence of nuclear weapons and the terrible risk they pose to the world threaten us all,” said the Marshall Islands Foreign Minister Tony de Brum. None of the target countries have accepted ICJ’s compulsory jurisdiction except the UK. The UK has accepted compulsory jurisdiction of the ICJ, which might require it to litigate this.  

India has not yet filed a reply to the Marshall Islands’ plea. The Marshall Islands feels that since India is not a part of the NPT, the nuclear arms race between India and Pakistan could pose a huge danger to world peace as Pakistan too is a non-signatory to NPT. China declared its ‘no first use (NFU) of nuclear weapons policy in 1964, and has since maintained this policy. India articulated its policy of ‘no first use’ in 2003. However, Pakistan can go for a preemptive strike if under great threat from India.

India is in a ‘Catch 22’ position as it finds it difficult to file a suitable reply to ICJ on the Marshall Islands’ application. The ICJ has been accepting India’s requests for extensions to file the reply from time to time. It earlier gave India time for filing the reply till September 16, 2014 then extended it by three months and again to June 16, 2015. India has now got time till September this year. 

The Marshall Islands through ICJ must be assured by all the nine nuclear weapon states that they will not indulge in any nuclear war in the future times to come and hence, should rest in peace than fear extinction.

The author is former Member, Consumer Disputes Redressal Commission, UT Chandigarh.