The Republic of Marshall Islands v. Pakistan at the International Court of Justice
The Republic of Marshall Islands (RMI), with which Pakistan maintains no diplomatic relations, has filed suits at the International Court of Justice (ICJ) against all the nine states Nuclear Weapons States (NWS) of the world. However, in conformity with the Statute of the Court, only Pakistan, India and the United Kingdom have been asked to respond to the RMI's suits since these countries recognized the jurisdiction of the court for certain specific issues at the time of their ratification of the Court's Statute.
The case brought up by RMI does not fall within the scope of those specific issues over which Pakistan recognizes the ICJ's jurisdiction. The Government of Pakistan has submitted a comprehensive written response to the Court in the form of a Counter-Memorial, seeking dismissal of the RMI's suit for lack of the Court's jurisdiction to entertain the RMI's claims and the inadmissibility of the RMI's application.
Drafted pursuant to the rules and jurisprudence of the Court and strictly limited to preliminary issues of the Court's jurisdiction and the admissibility of the RMI's application, Pakistan's Counter-Memorial emphasizes that Pakistan's nuclear programme is a matter of its national defense and security which falls exclusively within its domestic jurisdiction and is therefore not to be called into question by any court including the ICJ.
It has, moreover, been conveyed to the Court that the RMI lacks the requisite standing to institute the current proceedings since there is no dispute, let alone a legal dispute, that exists between the RMI and Pakistan. This is manifested by the fact that the RMI has never suffered any damage caused by Pakistan either directly or indirectly, and by the lack of any formal or informal communication initiated by the RMI with Pakistan until it filed its application in the ICJ Registry on 24 April 2014. This suit has, therefore, been brought without any sense of reason or responsibility; otherwise, the RMI would have, as a minimum, initiated some form of direct communication with Pakistan on the issues that are allegedly in dispute.
It is a fundamental principle of international law that the RMI and Pakistan must have consented to the Court's jurisdiction for it to exercise jurisdiction over the RMI's claims. The scope of the Court's jurisdiction in the case is to be ascertained with reference to both the RMI's and Pakistan's respective Declarations accepting the Court's compulsory jurisdiction including the reservations or exceptions contained therein.
In this regard, first, the reservation in the RMI's Declaration precluding proceedings where any party has accepted the Court's compulsory jurisdiction only in relation to or for the purpose of the dispute referred to the Court expressly excludes the RMI's claims from the scope of the Court's jurisdiction. Second, the domestic jurisdiction reservation encompassed in Pakistan's Declaration expressly excludes the RMI's claims from the scope of Pakistan's acceptance of the Court's compulsory jurisdiction as they involve issues of national security in Pakistan's domestic jurisdiction, for which the ICJ is not the competent forum. Third, the multilateral treaty reservation contained in Pakistan's Declaration expressly excludes the RMI's claims from the Court's jurisdiction because not all State parties to the multilateral treaty, the Nuclear Non-Proliferation Party (NPT), that lies at the heart of the RMI's claims but of which Pakistan is not a party, are present in the current proceedings.
In relation to the RMI's claims, Pakistan is being used by the RMI to assert its rights and interests against other States that are party to the NPT. Since the Court cannot adjudicate the rights and obligations of these indispensable third states without their participation in the present proceedings, it cannot admit the RMI's application against Pakistan alone, which would no doubt compromise the sound administration of justice and judicial propriety and integrity of the Court.
Critically, the injury claimed by the RMI cannot be redressed by compelling the specific performance by only Pakistan, which is neither "an interested party" nor a party "directly concerned" with obligations enshrined in the NPT. It would be impossible for Pakistan to implement judgment for the RMI by fulfilling the responsibilities that would arise therefrom without the participation of all the NWS. Granting the relief sought by the RMI against Pakistan alone would, therefore, in the absence of other NWS willing to negotiate, be devoid of any practical legal effect.
By their very nature, negotiations are a multi-lateral phenomenon and in the context of multilateral disarmament negotiations, all of the sovereign States involved have to balance their national security concerns against their desire for disarmament. For this reason, the judicial process remains inherently incapable of resolving questions of nuclear disarmament involving multiple states, let alone through an order of specific performance or other injunctive relief imposed on one State alone. In the view of this, and as Pakistan affirmed in its Counter-Memorial, the issues concerning nuclear disarmament raised by the RMI's Application are suitable for settlement only through multilateral negotiations at the appropriate disarmament fora.
The RMI case fails to bring the possessors of largest nuclear arsenals before the Court. In the absence of these nuclear powers the law suit will fail to achieve the desired objective. The issues of nuclear disarmament and non-proliferation are inextricably linked to the regional and global security environments. These objectives have to be pursued through meaningful engagement between all stakeholders and creation of conducive conditions assuring all states of equal and undiminished security.
For all these foregoing reasons, Pakistan has submitted in its Counter-Memorial that the Court should adjudge and declare that the RMI's claims against Pakistan are neither within the jurisdiction of the Court and nor are admissible. Additionally, mindful of the Court's principle of procedural economy, Pakistan has decided not to participate in the ongoing oral hearings as it feels that it does not need to add anything to what it has already submitted in detail in its Counter-Memorial.
10 March 2016