Pakistan’s Nuclear Assets On ICJ’s Radar

Pakistan’s Nuclear Assets On ICJ’s Radar

The issue of weapons of mass destruction has always been a controversial one in the comity of nations. This has recently been brought to the limelight again by Republic of Marshall Islands (RMI) which has, questioned the legality of the possession of nuclear weapons. It has taken the stance that international law prohibits it and all nuclear states should disarm those weapons.

RMI is a small state in the Pacific, and the United States, conducted nuclear weapons tests there when it was under its trusteeship. It has moved the International Court of Justice (ICJ) against nine states including Pakistan. It is relying on clause no. 6 of the Nuclear Non-Proliferation Treaty (NPT), but as we have not signed the NPT, therefore with regards to Pakistan, it is relying on our ‘supposed’ obligations under customary international law, ‘with respect to cessation of the nuclear arms race at an early date and nuclear disarmament within one year of the Judgment.’ Pakistan, so far, has not filed its counter memorial (written response) against RMI’s application and has only sought an extension, which the court granted uptill December 1, 2015 for Pakistan to submit its objections to the jurisdiction of the Court. There are two stages to this case, at the first, it shall be decided whether the ICJ has jurisdiction to hear the case, and in the second stage the merits shall be considered. With respect to jurisdiction, it is important to note that ICJ does not, unlike domestic courts, enjoy compulsory jurisdiction over the parties. It can only proceed to the merits of an application provided that both the parties, i.e. the states, consent to its jurisdiction. However, under the optional clause Article 36 (2) of ICJ’s Statute allows states to recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court. Acceptance of jurisdiction based on the aforementioned article operates on the basis of reciprocity and is known as the ‘optional clause declaration’. RMI believes that Court’s jurisdiction stands established by virtue of the optional clause declaration made by her and Pakistan. Pakistan submitted its optional clause declaration in 1960 and also attached a rather ‘weak reservation’; Clause (b) of the reservation states that Pakistan shall not accept compulsory jurisdiction regarding, Disputes relating to questions which by international law fall exclusively within the domestic jurisdiction of Pakistan’. Needless to say, States traditionally have considered their defence policy and tactics as a purely internal matter, unless laws of warfare prohibit it. And there is no specific prohibition on the use of nuclear weapons. This is further clarified by the Nuclear Tests Case, in which Judge Gros noted in his individual opinion that if a state seeks to impose a certain national defence policy on another State is an intervention in that State’s internal affairs in a domain where such intervention is particularly inadmissible”.

If the Court finds that it has  jurisdiction to hear the case, whether or not Pakistan files a response and proceeds to the merits of the application, the principle question, then, would be; whether the content of Article 6 of NPT has become part of CIL?  Article 6 states ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control’.  Therefore, RMI will have to prove to the Court that the said treaty provision is binding even on non-signatory states, as it has become part of customary law. However, even if the ICJ so decides, it is unlikely to apply to Pakistan, as Pakistan will likely fall under the exception provided by the principle of ‘persistent objector’, which allows a state not to comply with CIL provided it had, persistently objected to such a principle being a norm of international law. Pakistan, has conducted nuclear tests and is a declared nuclear state, this is an explicit and clear objection to any such rule being acceptable to it. In addition, RMI itself accepts, in its application, that Pakistan is not a party to the NPT and, in addition, it has been blocking consensus in the Conference on Disarmament on commencing negotiations on such a treaty i.e. Fissile Materials Cut-Off Treaty. Acceptance of these facts means that even if there is such a law, Pakistan does not accept it, and under international law, then as a ‘persistent objector’, it does not apply to it.

Furthermore, ICJ has never declared the possession of nuclear weapons as unlawful. In its advisory opinion on Legality of Threat or Use of Nuclear Weapons, ICJ concluded, amongst others; There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.” and “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful”. Thus, if a state uses Nuclear weapons to defend herself then the act cannot be ruled as contrary to International Law and Pakistan’s ‘first use but last resort’ policy is reflective of the same approach.

Alternatively, if Pakistan may decide not to submit her memorial before the Court, then the ICJ’s Statute  Article 53 (2), where the Court is moving ex-parte, provides that the court must; “satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.” This would place the onus on the Court for establishing that it has jurisdiction and this is likely to prove hard to establish.

It remains to be seen whether our government decides to take part in the proceedings, or takes the stand that the ICJ has no jurisdiction. It needs be mentioned that if a country, as India has done in this case, decides that it shall not take part in the proceedings, as the ICJ has no jurisdiction, it is open for it to become a party at a later stage if the ICJ, decided, that ‘it’ has jurisdiction, in spite of the state party’s objection.

Whatever the outcome of this case, the Foreign Office needs to re-look into the matter of the reservation and needs to reword it more narrowly, so as to be able to better protect the State’s interests in future. Some countries for example have added the provision that the state itself shall decide which matter falls within its domestic jurisdiction.

The authors are of the view that nuclear weapons, can only be maintained as defensive weapons of last resort and that too only when the state is facing an existential threat, which hopefully will never have to be used, as their destructive force is incalculable. And ideally, the world and Pakistan should work to eliminate them. Pakistan’s position, in this regard is that it is willing to move in that direction, if India does it as well.

Previously published in The Nation.

The views expressed in this article are those of the authors and do not necessarily represent the views of any organization with which they might be associated.

Ahmad Nazir Warraich

Author: Ahmad Nazir Warraich

The writer is a senior academician, an Advocate of the High Court and an expert in International Law.

Bilal Ramzan

Author: Bilal Ramzan

The writer is a lawyer, has an LLM in International Law from the University of Cambridge and is a member of the Editorial Team of Courting The Law.