India and Pakistan May Successfully Argue Lack of the ICJ’s Jurisdiction in the Marshall Islands CasePosted: April 24, 2014
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.