India and Pakistan May Successfully Argue Lack of the ICJ’s Jurisdiction in the Marshall Islands Case
Posted: April 24, 2014 Filed under: Nuclear 6 CommentsI was just reading over India’s and Pakistan’s respective declarations recognizing the compulsory jurisdiction of the ICJ. You can find them here and here.
In both documents, there is an express exception to jurisdiction, relating to disputes concerning multilateral treaties, which of course includes the NPT.
In India’s declaration this exception is expressed as applying to:
disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction
In Pakistan’s declaration the exception is slightly different:
Disputes arising under a multilateral treaty unless
i) all parties to the treaty affected by the decision are also parties to the case before the Court, or
ii) the Government of Pakistan specially agree to jurisdiction; and provided further, that this Declaration shall remain in force till such time as notice may be given to terminate it.
You could try to draw some semantic distinctions between them, but ultimately I think they are saying the same thing, which is that India and Pakistan respectively, only consent to be a party in a case before the ICJ involving a dispute concerning a multilateral treaty, when all the other parties to the multilateral treaty are also parties to the case.
Assuming that is the correct interpretation of this jurisdictional exception, then India and Pakistan can probably persuasively argue that the ICJ cannot exercise jurisdiction over the suits brought against them by the Marshall Islands. That would leave the UK as the only state that would have to concede ICJ jurisdiction over the case against it, unless the FCO has some trick up its sleeve that I don’t know about! You can read the UK’s declaration here. I don’t see any similarly helpful exceptions to jurisdiction.
Arms Control Law 
Hi,
Wasn’t that the exact same phrasing of the US reservation in Nicaragua? And, in any case, are India and Pakistan parties to the NPT? I think in your previous post you said that RMI are arguing that India and Pakistan have violated CIL.
Thanks.
Was it? I’d be happy if someone has additional insight. RMI are basing their case on CIL and not the NPT. But that’s an entirely separate question to the jurisdictional one. If the ICJ can’t extend jurisdiction over the case, it will never get to the merits of the legal argument.
Oh, now I see what you were saying about the basis being CIL instead of the NPT. That would do an end run around this exception, wouldnt it? That’s a good point. Thanks for making it. I did just look at the Nicaragua case and you’re right about that too, although the US declaration there uses the wording of the Pakistani declaration, and not the Indian declaration. But as you point out, this exception really shouldnt apply because the RMI is arguing CIL and not the multilateral treaty.
Hi again: [1984] ICJ Rep 421-2 para 67: ‘disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction’.
Of course the Indian Declaration is very clear on the point that ICJ has no jurisdiction. That apart India is not at all a party to the NPT. This means ICJ cannot have jurisdiction in any case. Even if CIL is invoked, India has been a persistent objector and ICJ cannot have jurisdiction.
If the claim against India is grounded in customary international law, I doubt the multilateral treaties exception is of any use when arguing against the Court’s jurisdiction. I also think that the point about India being a persistent objector to any rules of CIL regarding the use of nuclear weapons is an issue for the merits of the case before the ICJ, and does not, prima facie, effect its jurisdiction. That said, I do think that the “national defence” exception in India’s optional clause declaration provides a basis to argue for the lack of jurisdiction. A similar issue arose in the Nuclear Tests case, and though the Court did not consider it necessary to rule on it, several judges were of the view that reservations excluding disputes relating to national defence, etc., have the effect of excluding nuclear disputes from the Court’s jurisdiction, You can read more about it here: http://www.ejiltalk.org/the-marshall-islands-case-against-indias-nuclear-weapons-program-at-the-icj/