Shashank P. Kumar is a Dispute Settlement Lawyer at the Appellate Body Secretariat of the WTO in Geneva and a visiting lecturer of international law at National Law University, Jodhpur, India.
Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.
The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.
The Limits of India’s Recognition of ICJ Jurisdiction
On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made a declaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”.
At its heart, the Marshall Islands’ case against India concerns “the quantitative buildup and qualitative improvement of [India’s] nuclear forces” (Application, p.25). The question therefore is whether this subject matter is excluded by India’s reservation described above. The mere development of a nuclear weapons program and the maintenance of a nuclear arsenal would most likely not qualify as a “situation of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression”. However, the above reservation is worded rather broadly, and India’s nuclear weapons program may be seen as being “relate[d] to” or “connected with” such situations or “other similar or related acts, measures or situations”.
The Marshall Islands’ Application appears to acknowledge this point, yet fails to address the hurdle posed by the reservation, noting only that India’s Declaration is “without pertinent reservation” (Application, p. 24). For example, the Application quotes India’s statement at the 2009 plenary of the Conference on Disarmament, wherein India stated that “[n]uclear weapons are an integral part of our national security and will remain so, pending the global elimination of all nuclear weapons on a universal, non-discriminatory basis” (Application, p. 11). The Application also refers to India’s no-first-use-policy and quotes the Indian government’s stance that “nuclear weapons will only be used in retaliation against a nuclear attack on Indian territory or Indian forces anywhere” (Application, p. 11). These statements and India’s official no-first-use-policy suggest that India’s nuclear weapons program is designed and implemented primarily to safeguard national security and to defend the country in situations of hostilities and armed conflicts. Any dispute relating to India’s nuclear weapons program and arsenal would, therefore, appear to be excluded from the Court’s jurisdiction by virtue of the broadly worded reservation found in India’s 1974 Declaration.
Interpretation of National Defence Reservations
While some States and scholars argue that disputes relating to national defence and security are non-justiciable by their very nature, reservations similar to the broadly worded “self-defense” reservation included in India’s Declaration are not very common. A quick survey of the 70 declarations available on the Court’s website as of 19 June 2014 reveals that 7 contain some variation of a “self-defense” reservation.
In addition to the Court’s approach towards the interpretation of optional clause declarations in general, two disputes that may shed light on the issue are the Nuclear Tests Cases brought by Australia and New Zealand against France in 1973 concerning the legality of atmospheric nuclear tests conducted by France in the South Pacific region. In those cases, Australia and New Zealand sought to base the Court’s jurisdiction on, inter alia, France’s 1966 declaration recognizing compulsory jurisdiction. The 1966 French Declaration in effect at that time, however, contained a reservation similar to the one found in India’s 1974 Declaration that excluded “…disputes concerning activities connected with national defence”. In the end, the Court was not called upon to address this issue as it found that the case had lost its object in light of the public assurances given by high-ranking French officials that France would cease atmospheric nuclear tests in the South Pacific. Nevertheless, several judges of the Court addressed the issue in their individual opinions. Judge de Castro was of the view that the French “reservation certainly seems to apply to the nuclear tests”. Judge Forster went further and spoke of the “absolute sovereignty which France, like any other State, possesses in the domain of its national defence”. Citing the example of the UK, Judge Gros noted that Australia’s and New Zealand’s claims “to impose a certain national defence policy on another State is an intervention in that State’s internal affairs in a domain where such intervention is particularly inadmissible”.
Commenting on these cases, Professor Oscar Schachter, in his 1982 general course at the Hague Academy, noted that “a term such as ‘national defence’ allows a very wide margin of appreciation and a court should be exceedingly cautious to avoid imposing its own interpretation on whether a particular act is in the national defence of the State concerned”. While the exact language of the French and Indian reservations may be different, in general, the Court has recognized that, given the sui generis nature of optional clause declarations, the “régime 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” (Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998, para. 46). In particular, the Court has explained that whatever the basis of consent to its jurisdiction, “the attitude of the respondent State ‘must be capable of being regarded as an ‘unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner” (Questions of Mutual Assistance (Djibouti v. France), Judgment of 4 June 2008, para. 62). Such a subjective interpretative approach, as reflected in the “unequivocal indication” standard, appears to favour a reading of India’s Declaration that excludes disputes relating to India’s nuclear weapons program from the scope of India’s consent to the Court’s compulsory jurisdiction.
Further Options for India
Having formally objected to the Court’s jurisdiction, India now has two options. It can choose to participate in the ICJ proceedings in order to formally lodge its legal objections to the Court’s jurisdiction. Or, as envisaged in Article 53 of the Court’s Statute, it can choose to not appear before the Court at all, as France did in the Nuclear Tests Cases. Interestingly, the Court’s Order of 16 June fixing the time limits for pleadings on jurisdictional questions notes that India refused to participate in a meeting called by the President of the Court to discuss preliminary procedural issues. India, therefore, may be leaning towards non-appearance.If India refuses to appear, Article 53(2) of the ICJ Statute requires that the Court must satisfy itself that it has jurisdiction and that the claim is well founded in fact and law.
While not participating in the proceedings appears to provide an easy way out, India’s reasoned engagement in the proceedings by objecting to the Court’s jurisdiction would show its commitment to the international rule of law, as encouraged by Article 51 of the Indian Constitution, which calls upon the State to “foster respect for international law” and to “encourage settlement of international disputes by arbitration”. The last time India was involved in a dispute before the ICJ was in 1999 when Pakistan accused India of shooting down a naval aircraft in Pakistan’s airspace. In that case, too, India objected to the Court’s jurisdiction on the basis of the so-called “commonwealth reservation” to its optional clause declaration. However, it fully participated in the written and oral proceedings on the issue of jurisdiction, and the Court eventually agreed with India and found that it lacked jurisdiction (Judgment, para. 46). (Incidentally, unlike 1999, this time, the Court also includes a permanent judge of Indian nationality, Judge Dalveer Bhandari having been elected to that position in 2013.)
Finally, it is important to remember that the argument that the Court does not have jurisdiction to hear the Marshall Islands’ case against India has nothing to do with the undoubted desirability of living in a world free of nuclear weapons, which are known to cause unbearable suffering and vast destruction. Instead, the Court’s lack of jurisdiction is only a sobering reminder that public international law generally and the jurisdiction of the Court, in particular are founded on the voluntary consent of States. To quote Judge Ignacio Pinto from the Nuclear Tests Cases, the Court “has no right to hand down a decision against a State which by a formal declaration excludes its jurisdiction over disputes concerning activities connected with national defence”.