The Republic of the Marshall Islands v. The Republic of India: Negotiations on Nuclear Weapons
Paper No. 5795 Dated 25-Sept-2014
By Dr. Parasaran Rangarajan
Earlier this year, the Marshall Islands filed a case at the International Court of Justice (ICJ) against India, United Kingdom, and Pakistan for failure to engage in their obligation as a state under customary international law towards negotiations which would end their nuclear programmes.
The entire case is based on one statement in the 1996 Advisory Opinion on the Legality Of The Threat Or Use Of Nuclear Weapons, also filed at the ICJ. In the case, the judges unanimously decided:
“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"
This part of the opinion is customary international law and in most cases; creates legal obligations. This is because Article 38 (1) (b) of the Statute of the International Court of Justice allows customary law to be introduced as evidence in a case. Realising this, keep in mind that India has engaged in nuclear disarmament negotiations for decades and a case to force India to negotiate is unnecessary. It may also amount to duress or interfering in the internal matters of a nation.
According to the United Nations High Representative For Disarmament Affairs Sergio Duarte:
“Mahatma Gandhi himself condemned the atomic bombings in Japan, declaring that “The only weapon that can save the world is non-violence.” On April 2, 1954, Prime Minister Nehru responded to tests of hydrogen bombs by calling upon the United States and the Soviet Union to conclude a “standstill agreement” on further tests pending progress in disarmament. India presented this proposal to Secretary-General Dag Hammarskjöld a few days later.”
While one may argue that the disarmament of nuclear weapons is also “general practice” in the context of the “principles of humanity”, this is a case of trying to force a member-State of the United Nations to abide by a treaty, specifically the “Non-Proliferation Treaty” (NPT). This is illegal and any signing would amount to duress which would make the treaty null. First, we cite Article 34 of the 1969 “Vienna Convention On The Law Of Treaties”:
“A treaty does not create either obligations or rights for a third State without its consent.”
This is fairly straight forward as the ICJ cannot force India to abide by the NPT without its consent. While the argument may be that the ICJ should force India into entering negotiations in “good faith” towards disarmament, no progress can be made in the actual disarmament nor can the court force India to negotiate as that is a breach of sovereignty.
In United Nations General Assembly Resolution 2625 (XXV) or the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, it states:
“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.”
Clearly, requesting the courts to force India to negotiate without any mandate from the international community is an intervention into the external affairs of the nation in violation of Article 2 of the United Nations Charter. A similar case has been filed against Chile by Bolvia (Bolvia v. Chile) at the ICJ attempting to force negotiations but has been filed under the premise of an existing treaty; The Bogota Treaty.
The situation may be different if the United Nations or its bodies had a mandate drafted for India for this specific purpose but none exists till this day. There are only resolutions encouraging member-States to join the NPT and disarm nuclear weapons. Even when Kosovo declared independence from Serbia with the United Nations mandate but Serbia refused to negotiate until the ICJ rendered its opinion on the matter.
In addition, the court will not have the proper jurisdiction to hand down a verdict on this matter as it relates to national defence. Observing Judge Ignacio Pinto’s statement from the nuclear case at the ICJ; 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”. The ICJ stated it lacked jurisdiction to deliver a verdict in the 1999 Pakistan v. India case as well for similar reasons.
More so, the court found that the non-use of nuclear weapons could prove their “use” as a deterence in international relations. India, to its west and north is surrounded by nuclear states and is a valid form of deterrence. Article X (1) of the NPT states the party may withdraw from the treaty itself if it is not in the interests of the nation:
- Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.”
It is also worthy to mention India was the first country to call for a ban on nuclear testing in 1954! India even participated in the negotiations for the Comprehensive Nuclear Ban Test Treaty. This is not to mention the decades long negotiations India has promoted in nuclear disarmament according to the Permanent Mission of India to the United Nations:
“In 1978, India proposed negotiations for an international convention that would prohibit the use or threat of use of nuclear weapons.
This was followed by another initiative in 1982 calling for a "nuclear freeze" - i.e. prohibition on the production of fissile material for weapons, on production of nuclear weapons, and related delivery systems
In June 1988, Prime Minister Rajiv Gandhi presented an “Action Plan for Ushering in a Nuclear - weapon free and Non - Violent World Order” to the Third Special Session on Disarmament of the General Assembly in June 1988.
The heart of the Action Plan was the elimination of all nuclear weapons, in three stages by 2010 and it emphasized nuclear disarmament that is global, universal and non - discriminatory in nature.”
In October 2006, India presented to the First Committee of the UN General Assembly a Working Paper on Nuclear Disarmament.”
As we can see, India has a long history of involvement in the disarmament of nuclear weapons and as late as 2006, voted in favour of nuclear disarmament at the United Nations General Assembly and participating in the Committee for Nuclear Disarmament.
As late as 2013, the former External Affairs Minister of India Shri. Salman Khurshid stated the nation is ready to enter negotiations to eliminate nuclear weapons; "We refuse to participate in an arms race, including a nuclear arms race. We are prepared to negotiate a global No-First-Use treaty and our proposal for a convention banning the use of nuclear weapons remains on the table."
So, for the ICJ to dictate to India that it must participate in negotiations, it would have to keep India’s national interests in mind and surely it will not be the authority to legislate India’s interests. Furthermore, India has been willing and is ready to negotiate.
Every forced negotiation has had a mandate by the concerned body, either regional or international. In this case, there is simply no mandate by the international community calling upon India to enter negotiations for nuclear disarmament and the ICJ as the opinion juris of the nuclear case at the ICJ has been realised through India’s willingness to negotiate and previous negotiations.
The right of India to maintain nuclear weapons also has to do with its national defence strategy with regards to the neighborhood of the world it is in, surrounded by nuclear powers. Perhaps most importantly, the ICJ may not have the proper jurisdiction as well according to the judiciary which presided over the case of evidence itself.
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