NEW DELHI: India filed its counter-memorial before the International Court of Justice last week on whether the world court had the right to adjudicate in the suit filed by the tiny pacific island nation of Marshall islands for not taking any substantive steps towards nuclear disarmament.
Sources said that India filed its counter-memorial on Sep 16 – a day before the deadline for the submission. This was the first time that India had been involved in matter before ICJ in 15 years – since Indian government’s lawyers successfully argued that the UN’s judicial organ had no jurisdiction in case filed by Pakistan of its naval aircraft being shot down by Indian Air Force.
In April last year, Marshall Islands had filed a suit against all nuclear weapon states – US, UK, China, France, Russia, Israel, India, Pakistan and North – for failure to step up to their obligations in forging forward towards nuclear disarmament.
But ICJ accepted cases only against India, Pakistan and UK – as the other six countries had never acceded to the Hague-based World court.
In the beginning, India had not even attended meetings called by the President of the Court on 11 June of the two parties.
In its letter dated June 6 2014, Ambassador of India to Netherlands RN Prasad wrote that “India . . . considers that the International Court of Justice does not have jurisdiction in the alleged dispute”
At the June meeting, the Marshall Island representatives had asked the court to first settle the question of jurisdiction. ICJ then gave a deadline of December 16, 2014 for Marshall Islands to file its memorial, followed by a counter-memorial by India by June 16, 2015.
A month before India’s deadline, New Delhi asked for an extension of the time-limit, which was then extended by three months.
Marshall Islands, which was the location for US nuclear tests during the cold war period, had claimed that India had breached “customary international law” and also to act “in good faith” on its obligations.
The Marshall Island’s case is that even though India is not party to NPT, New Delhi is obliged to implement its provisions under ‘customary international law’. It had also given details of India’s “quantitative buildup and qualitative improvement of nuclear force”, based on open source material.
While the counter memorial has not been made public, India’s main argument would be based on its reservations as delineated in its declaration for recognizing the jurisdiction to the ICJ by then Indian foreign minister Swaran Singh in 1974.
India had declared that the ICJ cannot adjudicate on disputes concerning multilateral treaties, which will cover the Nuclear Non-Proliferation treaty.
Further, India may argue the “self-defence” clause for the strengthening of its nuclear forces. The 1974 declaration which lists disputes on which India also does not accept ICJ’s role as “relating to or connected with facts or 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 in which India is, has been or may in future be involved”.
As per sources, ICJ will have to take a call soon, based on consultations with the parties, on whether oral hearings will be held.
Besides, Marshall islands has a deadline of Oct 15 to file its statement on the preliminary objections raised by UK. Pakistan’s deadline for filing its counter-memorial on jurisdiction is Dec 1.