On September 16, India submitted its counter-memorial to the International Court of Justice (ICJ) regarding whether the Hague-based Court had jurisdiction to hear the dispute brought against India by the Marshall Islands; about India’s failure to actively pursue nuclear disarmament.
The Marshall Islands brought similar claims against eight other states for violating their legal obligation in negotiating the elimination of nuclear weapons in December 2014. These states are China, France, Israel, North Korea, Pakistan, Russia, the United Kingdom (UK) and the United States (US). The basis of their argument centers on the Nuclear Non-Proliferation Treaty (NPT), which contains a provision stating the legal obligation required of the states to pursue the cessation of nuclear proliferation under good faith negotiations at an early date; and the Marshall Islands’ claiming that this has basis in customary international law too.
The only respondents that have recognized the ICJ’s jurisdiction are India, Pakistan and the UK.
As expected, India has claimed the ICJ has no jurisdiction to hear the matter. At hearings regarding this question in June, India’s Ambassador to the Netherlands wrote: ‘India…considers that the International Court of Justice does not have jurisdiction over the alleged dispute.’
The details of the submissions filed last week have not been made public; however it is generally expected that their case would address the reservations made in 1974 with respect to what India would consent to the ICJ hearing. Then Foreign Minister Swaran Singh accepted on behalf of India the ICJ’s compulsory jurisdiction, but made reservations into the types of matters heard. This excluded the ICJ from hearing matters related to India in relation to multilateral treaties and disputes regarding ‘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.’
Marshall Islands’ Foreign Minister and the legal advocate for this case, Tony de Brum, addressed the Scottish Parliament on Wednesday September 23 to pressure legislators in the UK to fulfill their international obligations under the NPT. In a letter sent to the Scottish Parliament, de Brum indicated that they sought relief from the Court requiring compliance among the nuclear-possessing states in accordance with these international obligations. The UK is due to file their counter-memorial in early October.
Pakistan is expected to file their counter-memorial in early December, replying to whether the ICJ has jurisdiction to hear the matter as well. If it surpasses the preliminary proceedings, oral submissions are expected in March 2016.
The Marshall Islands was the test site for 67 nuclear armaments between 1946-1958 by the US. It was also the site for the largest nuclear test conducted by the US, Castle Bravo, in 1954. The total explosive yield of these tests, according to de Brum, equated to approximately 1.6 Hiroshima-sized bombs every day for 12 years. As a consequence, the Marshall Islands endured significant health issues and irreparable environmental damage – the repercussions and legacy of which has continued on for decades.