PHOTO: REUTERS
In majority and sharply divided decisions, a 16-judge bench at the International Court of Justice (ICJ) ruled there was no evidence that Majuro had a prior dispute with any of the three nuclear giants or had sought negotiations on the issue.
“The court upholds the objection to jurisdiction” raised by each of the countries, presiding judge Ronny Abraham said in separate rulings, and therefore the tribunal “cannot proceed to the merits of the case”.
“The questions of the existence of and extent of customary international law obligations in the field of nuclear disarmament, and Pakistan compliance with such obligations, pertain to the merit. But the court has found that no dispute existed between parties prior to the filing of the application and consequently it lacks jurisdiction to consider these questions,” reads the 22-page verdict.
The tiny Pacific island nation, with a population of 55,000, was ground zero for a string of devastating nuclear tests on its pristine atolls between 1946-58, carried out by the United States as the Cold War arms race gathered pace.
Initially in 2014, Majuro had accused nine countries of failing to comply with the 1968 nuclear Non-Proliferation Treaty (NPT), which seeks to inhibit the spread of atomic bombs. But the ICJ already refused to take up cases against the other countries – China, France, Israel, North Korea, Russia and the United States – as they have not recognised the court’s jurisdiction. Israel has also never formally admitted to having nuclear weapons.
The Marshall Islands argued that by not stopping the nuclear arms race Britain, India and Pakistan had breached obligations under the treaty – even if New Delhi and Islamabad have not signed it.
At a poignant March hearing, Majuro’s lawyers painted a vivid picture of the horrors caused by 67 nuclear tests notably the atolls of Bikini and Enewetak.
“Several islands in my country were vaporised and others are estimated to remain uninhabitable for thousands of years,” Tony deBrum, a former Marshall Islands foreign minister, told the court. “The entire sky turned blood-red,” said deBrum, who was nine when he witnessed the blasts.
Judge Abraham noted the archipelago, “by virtue of the suffering which its people endured as a result of it being used as a site for extensive nuclear testing, has special reasons for concern about nuclear disarmament.”
“But that fact does not remove the need to establish that the conditions for the court’s jurisdiction are met,” Abraham said.
After Wednesday’s hearings, the Marshalls said it will now ‘study the ruling’ which is final and without appeal. “Obviously, it’s very disappointing,” Marshall Islands lawyer Phon van den Biesen told reporters. “It’s a dispute that is clear to all of the world except for the judges here,” he said, outside the courtroom in the ICJ’s historic headquarters in the Peace Palace in The Hague.
Commenting on the verdict, international law expert Ahmer Bilal Soofi, who led Pakistan’s legal team at the ICJ, told The Express Tribune that the court affirmed that Pakistan’s nuclear weapons were not illegal under international law.
Soofi called it a historic first victory for Pakistan at the ICJ. The verdict formally brings the Marshall Islands lawsuit against Pakistan to a conclusion after two and a half years. “The Marshall Islands was represented by a team of top international lawyers from various countries, including the United States” he added.
Pakistan’s legal team, which comprised another international law expert Ali Sultan, submitted a detailed response and contested that the case should not proceed to the merits because Pakistan’s nuclear program 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.
Moreover, it was conveyed to the court that the Marshall Islands lacks the requisite standing to institute the current proceedings since there is no dispute, let alone a legal dispute, that exists between the tiny republic and Pakistan.
“This is manifested by the fact that the Marshall Islands has never suffered any damage caused by Pakistan either directly or indirectly, and by the lack of any formal or informal communication initiated by Majuro with Pakistan until it filed its application in the ICJ Registry on 24 April 2014,” the Pakistani team argued.
Pakistan in its written reply further stressed that the injury claimed by the RMI cannot be redressed unless it is complied (with) by other nuclear-weapon states, since Pakistan is neither ‘an interested party’ nor a party ‘directly concerned’ with obligations enshrined in the Nuclear Non-Proliferation Treaty (NPT).
The ICJ decision is a vindication of Pakistan’s stance that its nuclear program is a matter of its national defence and security which falls exclusively within its domestic jurisdiction, the Foreign Office said in a statement.
Published in The Express Tribune, October 6th, 2016.
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