Daily Times

On March 10, the ministry of foreign affairs stated a fact that the Republic of Marshall Islands’ (RMI) suit in the International Court of Justice (ICJ) makes no reason as it has never suffered any damage caused by Pakistan’s nuclear programme. The ICJ admitted RMI’s suit only against the UK, India and Pakistan because the three states recognise the jurisdiction of the court as compulsory. It is therefore irresponsible to think of this issue as David versus Goliath.

Ironically, the actual Goliath — the United States — paid the RMI handsomely with several privileges (which are not enough realistically) to use it as a subject of 67 nuclear tests between 1946 and 1958. The RMI is now appealling in the U.S. Supreme Court after being rejected by the U.S. Federal Court that the U.S. is not living up to commitments of nuclear disarmament.

The Special Rapporteur Calin Georgescu, in a report to the UN human rights council about American indiscriminate nuclear testing, concluded that “…radiation from the testing resulted in fatalities and in acute and long-term health complications and many people continue to experience indefinite displacement.”

Marshall Islands’ former foreign minister Tony de Brum, who also witnessed the Castle Bravo 15 Megaton hydrogen bomb test by the U.S. in 1954 expressed the reason of filling the case by saying, “This lawsuit…with the greatest respect and the greatest admiration for the big countries of the world, but we think it must be done.”

The ICJ began conducting the initial hearings on March 8, 2016 to establish if it has jurisdiction to accept the case filed. Pakistan has submitted a counter memorial on March 11 reiterating that court has no jurisdiction as Moazzam A. Khan, Co-Agent of Pakistan, transmitted to the Court on July 9, 2014 that “Pakistan is of the considered opinion that the ICJ lacks jurisdiction.”

What are Pakistan’s options to deal with the situation that is the making of the US and RMI? In 1996, the ICJ gave an advisory opinion on the “legality of the threat or use of nuclear weapons.” The court’s findings, largely, were constructed on the analysis of the Article VI of the Non-Proliferation Treaty (NPT). The major point of the unanimous conclusion was: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” In its application against Pakistan, the RMI quotes customary international law established on the NPT and asserts that Pakistan has breached the obligations placed with it. Likewise, the paragraph five of the application refers to the Law of Humanity as international law and United Nations General Assembly Resolution to eliminate nuclear weapons.

Thorough examination of the application clearly shows that the RMI wants to force the obligations or the negotiations on Pakistan to indirectly sign the NPT through the platform of the ICJ. However, it is illegal because according to the Article 34 Vienna Convention on the Law of Treaties, “A treaty does not create either obligations or rights for a third State without its consent,” and the UN resolution 2625 that “No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.”

On September 13, 1960, the then ambassador to the UN, Said Hasan, signed the ICJ’s declaration on behalf of the government of Pakistan under the Article 36, paragraph two. This declaration states that Pakistan will not accept jurisdiction of the ICJ on “Disputes arising under a multilateral treaty unless all parties to the treaty affected by the decision are also parties to the case before the Court.” Whereas, the advisory opinion of 1996 of the ICJ was based on the multilateral treaty [NPT], Pakistan’s declaration states that it will not accept the ICJ’s jurisdiction on this case.

The other notable point while signing the declaration was about “Disputes relating to questions which by international law fall exclusively within the domestic jurisdiction of Pakistan.” Thus for Pakistan, defending its territory is a matter of national defence and security by self-reliance. Pakistan, on several occasions, has argued that it was left with no option other than testing its nuclear weapons for the policy of deterrence after the Indian nuclear explosions. Similarly, the 1996 advisory opinion of the court was that it could not rule on the practice of “policy of deterrence.” Ultimately, the ICJ has no jurisdiction to accept the suit filed by the RMI.

By filing this case, the ethnic conflict has opened Karachi for sectarian conflict, while the RMI doubts Pakistan’s ‘good faith’ in pursuing nuclear disarmament and discouraging nuclear arms race. Meanwhile, the application communicated to the ICJ is contradicting this focal argument, as in paragraph 25 it acknowledges Pakistan’s objective in Conference on Disarmament about complete nuclear disarmament by all states.

While paragraph 31 mentions “Pakistan votes for resolutions in the UN general assembly calling for commencement of negotiations on a convention prohibiting and eliminating nuclear weapons,” it also acknowledges that Pakistan discourages nuclear arms race in South Asian as in paragraph 32 its states that “Pakistan advocates a strategic restraint regime that establishes nuclear restraint, balance in conventional forces and a mechanism for conflict resolution.”

Furthermore, suspicion arises when the RMI admitted to the complete jurisdiction of the ICJ on April 24, 2013, and filed the case just after a year on April 25, 2014 because its purpose was only to present dispute against three nuclear states and not its destroyer-cum-benefactor: the U.S. Interestingly, the state that molested RMI territory with nuclear tests for 12 years has not accepted the complete ICJ jurisdiction and goes scot-free. Louis Henkins was probably thinking of the U.S. when he famously wrote: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.”

Ahsan Ali Zahid is an M.Phil. scholar in School of Politics and International Relations, Quaid-e-Azam University, Islamabad, Pakistan Hasan Ehtisham is an M.Phil. scholar in Department of Strategic Studies, Quaid-e-Azam University, Islamabad, Pakistan