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 fulfill 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 Indias
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 Courts jurisdiction over the Marshall Islands
application against India. One reservation to Indias optional clause declaration excluding
disputes concerning actions taken in self-defense suggests that the Court lacks jurisdiction over
the case.
The Marshall Islands relies on different grounds to establish the Courts jurisdiction in its nine
applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these
States declarations accepting the Courts compulsory jurisdiction. In its applications against the
United States, China, France, Russia, Israel and North Korea none of whom have made
declarations accepting the Courts compulsory jurisdiction it calls upon these States to accept
the Courts jurisdiction under the doctrine of forum prorogate. The application against India is
unique because, while India has accepted the Courts compulsory jurisdiction, unlike and
Pakistan, India made a reservation to its Declaration that may exclude the Courts jurisdiction
over the Marshall Islands Application.

The Limits of Indias Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made
declaration, on Indias 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
Indias 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-defense, 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 [Indias] nuclear forces (Application, p.25). The question therefore
is whether this subject matter is excluded by Indias 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 Indias 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 Indias Declaration is without pertinent
reservation (Application, p. 24). For example, the Application quotes Indias statement at the
2009 plenary of the Conference on Disarmament, wherein India stated that [nuclear 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]. The Application also refers to
Indias no-first-use-policy and quotes the Indian governments stance that nuclear weapons will
only be used in retaliation against a nuclear attack on Indian territory or Indian forces anywhere.
These statements and Indias official no-first-use-policy suggest that Indias 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 Indias nuclear
weapons program and arsenal would, therefore, appear to be excluded from the Courts
jurisdiction by virtue of the broadly worded reservation found in Indias 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 Indias Declaration are not very common. A quick survey of the 70
declarations available on the Courts website as of 19 June 2014 reveals that 7 contain some
variation of a self-defense reservation.
In addition to the Courts 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 Courts jurisdiction on, inter alia, Frances 1966 declaration
recognizing compulsory jurisdiction.
The 1966 French Declaration in effect at that time, however, contained a reservation similar to
the one found in Indias 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 Australias and New Zealands claims to impose a certain national
defence policy on another State is an intervention in that States 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 rgime 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 Courts 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 Indias Declaration that excludes disputes
relating to Indias nuclear weapons program from the scope of Indias consent to the Courts
compulsory jurisdiction.

Further Options for India

Having formally objected to the Courts 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 Courts
jurisdiction. Or, as envisaged in Article 53 of the Courts Statute, it can choose to not appear
before the Court at all, as France did in the Nuclear Tests Cases. Interestingly, the Courts 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, Indias reasoned
engagement in the proceedings by objecting to the Courts 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 Pakistans airspace. In that case, too, India objected to the Courts 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 Courts 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 theNuclear 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.

Jurisdictional Problems 4 As it is well known the International Court of Justice doesnt

have compulsory jurisdiction and in any concrete case the jurisdiction of the Court
depends on the will of the parties, who may express their consent to the Court's
jurisdiction in a compromise made after a dispute has arisen, in a jurisdictional
clause of a treaty, or in a declaration of acceptance (of compulsory jurisdiction, also
termed as optional clause declaration). In the case of three states, the United In
the case of three states, the United Kingdom, India and Pakistan, the Marshall
Islands for the Courts jurisdiction has relied on Art. 36. Para. 2 of the Statute, since
both the applicant and respondent states are parties to the optional clause system
and the Marshall Islands has based the Courts jurisdiction on its own declaration of
acceptance made precisely a year earlier, on 24 April 2013, and those of the
respondent states, made by India on 18 September 1974, Pakistan on 13 September

1960 and the United Kingdom on 5 July 2004. Thus in three cases from the nine the
Court has prima facie jurisdiction. This view was not shared by India and Pakistan
and both of them after receiving the applications expressed their views that the
Court lacks jurisdiction and the applications should be dismissed. The President of
Court after consultation with the representatives of the two states fixed the time
limits for the filing of the Memorials by the Republic of the Marshall Islands and the
Counter Memorials of the two states stating also that in both cases the written
pleadings shall first address the questions of the Courts jurisdiction and
admissibility of the applications.( 12) Thus in these two cases the Court, following
the provisions on preliminary objections in Art. 79. para. 2. of the Rules of Court, will
consider all the questions of its jurisdiction separately before any proceedings on
the merits. In the dispute between the Marshall Islands and the United Kingdom the
Court has also fixed time limits, however, till now there were no signs that the
United Kingdom has disputed the Court jurisdiction.( 13) This does not mean that
the United Kingdom could not challenge the Courts jurisdiction either in a
preliminary objection under Art. 79 para. 1 of the Rules of Court, or at a later stage
of the proceedings, but in that case the objection would not be considered
separately from the merits of the dispute. Since two respondents already stated
that they would challenge the Courts jurisdiction and the admissibility of the
applications it is interesting to consider what might be the arguments of these
states. With all probability they will advance a long list of arguments, in that respect
states are very inventive, but in the following we will only refer to some of the
arguments which might be raised. The respondent states could refer first of all to
the reservations joined to their own declarations of acceptance or by reliance on
reciprocity on the limitations of the applicants declaration acceptance.
The respondent states could refer first of all to the reservations joined to their own
declarations of acceptance or by reliance on reciprocity on the limitations of the
applicants declaration acceptance. The 1974 Indian declaration of acceptance is
one of the most complicated declarations made under Art. 36 para. 2 of the Statute
accepting the International Courts compulsory jurisdiction, especially because it
contains a long list of disputes which are excluded from the Courts compulsory
jurisdiction. Of course it is difficult to foresee the arguments of the Government of
India regarding the lack of the Courts jurisdiction, but it might be possible for there
to be a reference to the so-called reservation on surprise applications in point 5 of
the declaration excluding disputes with regard to which any other party to dispute
has accepted the compulsory jurisdiction of the International Court of Justice
exclusively for or in relation to the purposes of such dispute, or where the
acceptance of the Courts compulsory jurisdiction on behalf of a party to the dispute
was deposited or ratified less than 12 months prior to the filling of the application
bringing the dispute before the Court.

The timing of the lawsuit is also significant. The Marshall Islands filed the suit after the
second humanitarian consequences conference in Nayarit, Mexico, and a week before the

NPT Preparatory Committee sessions in New York. It seems to be an attempt to use the
momentum of the Nayarit conference to put the question of the legality of nuclear arsenals
on the agenda at the Preparatory Committee meetings. So far, however, the attempt has not
been successful. While a number of nongovernmental organizations have been vocal about
the lawsuit, especially at NPT Preparatory Committee side events, the delegations
participating in the conference have remained all but silent on the subject.
Finally, the Marshalls lawsuit is an effort to force the four non-NPT nuclear weapons
countries (India, Israel, Pakistan, and North Korea) to accept the same statusand
therefore have the same disarmament obligationas the NPT nuclear weapons states. Israel
has never even officially confirmed nuclear possession, and this lawsuit is arguably the first
formal challenge of Israels policy of nuclear opacity, or amimut, by a non-Arab state. In
arguing that the NPT falls under customary international law, the lawsuit maintains that all
nuclear weapons states are legally required to begin negotiations in good faith towards
nuclear disarmament.
The lawsuit's greatest symbolic strength is based on history; the Marshall Islands have
firsthand knowledge of the consequences of nuclear weapons. From 1946 to 1958, the
United States conducted 67 atmospheric nuclear tests in Marshall Islands territories in the
Pacific. The hydrogen bomb test in 1954 forced the inhabitants of two of the Marshall
Islands, Rongelap and Utrik, to evacuate, and the overall radiological damage done during
these tests is still a matter of contention.
So the Marshall Islands' lawsuit should be taken seriously to some extent, but not because of
any short-term political impact. Rather, the importance of the lawsuit is based on its ability
to highlight the emergence of a new politics of nuclear disarmament, a politics that
challenges the very legitimacy and legality of nuclear weapons possession. The lawsuit is
unlikely to change nuclear disarmaments legal standing. It could, however, foster
international public support for more concrete efforts toward nuclear disarmament.
Whether this type of approach will gain significant traction in the public sphereas the
International Campaign to Ban Landmines did in 1997, leading to a global ban on land
minesremains to be seen. But the nuclear community should closely monitor the reactions
to this lawsuit, because such a public response is, if not certain, at least now possible.