ISLAMABAD: The Interna­tional Court of Justice (ICJ) on Wednesday threw out a case brought by the Republic of the Marshall Islands (RMI) which sought Pakistan to immediately end a “nuclear arms race” and ensure “nuclear disarmament within a year”.

The UN’s top court ruled in favour of Pakistan’s stance that there existed no dispute between RMI and Pakistan before the request was made and said the ICJ lacked jurisdiction to proceed with the case.

Pakistan had also argued that its nuclear programme involved matters of its national defence and security, which fell exclusively within its domestic jurisdiction.

“The court therefore concludes that the first objection made by Pakistan must be upheld. It follows that the court does not have jurisdiction under Article 36, paragraph 2, of its [ICJ’s] statute,” said the final order issued by the court following a majority vote of nine to seven.

ICJ says it lacks jurisdiction to proceed with the case

The ICJ also concluded, with a majority vote of 10 to six, that “it cannot proceed to the merits of the case”, according to the judgement of the case.

The Foreign Office welcomed the verdict, terming it a vindication of “Pakistan’s stance that its nuclear programme is a matter of its national defence and security which falls exclusively within its domestic jurisdiction”.

The RMI had filed suits before the ICJ against all the nine states possessing nuclear weapons regarding “obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament”.

The Foreign Office said that only Pakistan, India and the United Kingdom had been asked to respond to the suits because they recognised the jurisdiction of the court for certain specific issues at the time of their ratification of the Court’s Statute in 1960.

The RMI had alleged that Pakistan had violated and continued to violate its international obligations under customary international law, by failing 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, and violated international obligations with respect to cessation of the nuclear arms race at an early date, by taking actions to quantitatively build up its nuclear forces, to qualitatively improve them, and to maintain them for the indefinite future, and by blocking negotiations on a Fissile Materials Cut-off Treaty.

“The ruling represents a historic first victory for Pakistan at the ICJ and formally brings the RMI lawsuit against Pakistan to a conclusion after two and a half years,” said Ahmer Bilal Soofi, a former law minister and noted international law expert who headed Pakistan’s legal team in the case.

The lawsuit was filed in April 2014.

Strictly limited to preliminary issues of the court’s jurisdiction and admissibility of the RMI’s application, Pakistan’s counter-memorial had conveyed to the court that the RMI lacked the requisite standing to institute the current proceedings because there was no dispute, let alone a legal dispute, between the republic and Pakistan.

Islamabad argued that the RMI never suffered any damage caused by Pakistan, either directly or indirectly, and there was no formal or informal communication on the issue before the republic filed the case.

Pakistan also stressed that the injury claimed by the RMI could not be redressed by compelling the specific performance in the absence of other nuclear-weapons states by only Pakistan, which is neither “an interested party” nor a party “directly concerned” with obligations enshrined in the Nuclear Non-Proliferation Treaty (NPT).

The ICJ also noted that the RMI, by virtue of the suffering of its people for being used as a site for extensive nuclear testing programmes had special reasons for concern about nuclear disarmament but that did not remove the need to establish that the conditions for the ICJ’s jurisdiction were met.

The court also said that the RMI did not refer to any bilateral diplomatic exchanges or communication, consultation or negotiations with Pakistan on the issue.

By their very nature, negotiations were a multilateral phenomena and in the context of multilateral disarmament negotiations, all of the sovereign states involved had to balance their national security concerns against their desire for disarmament. For this reason, Pakistan averred before the court that the judicial process remained 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.

The case also failed to bring the possessors of largest nuclear arsenals before the ICJ in the absence of whom any suit against Pakistan would fail to achieve the desired objective, Pakistan asserted.

Published in Dawn, October 6th, 2016