ON April 24, the Republic of Marshall Islands instituted proceedings against Pakistan for breaching customary international law in failing to fulfil “the obligation of nuclear disarmament”, “the obligation of the cessation of the nuclear arms race at an early date”, and “the obligation to perform its obligations in good faith.” Similar proceedings are under way against the other eight nuclear-armed states.

Under Article 36(1) of the ICJ Statute, countries can invoke the jurisdiction of the court on matters especially provided for in special agreements entered into — treaties and conventions in force. This basis of jurisdiction is customarily limited to the interpretation and application of the treaty in question.

The basis of invoking the general jurisdiction of the ICJ against Pakistan, however, is its acceptance of the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ Statute, which accords jurisdiction to the court among other things on “the existence of any fact which, if established, would constitute a breach of an international obligation”. The 70 states that have accepted the compulsory jurisdiction have done so via declarations that define the scope of the jurisdiction by explicitly excluding certain kinds of disputes.

For instance, India has explicitly excluded disputes with the government of any state which is or has been a Commonwealth member. This exclusion led to the ICJ’s refusal to exercise jurisdiction in the aerial incident case brought by Pakistan against India when in 1999 India shot down a Pakistani naval plane in the Rann of Kutch.

Our compliance with international treaties has been poor.

India has 12 exclusions, which are specific and clear. In contrast, Pakistan’s declaration, made on Sept 12, 1960, lists only three exclusions, some of which are vague. Pakistan now finds itself in the midst of an inter-state lawsuit and the relevance of the text of this declaration cannot be discounted.

Such events make one question whether Pakistan binds itself to certain international obligations unnecessarily. A related query is whether Pakistan enters into international treaties exclusively for what it perceives as beneficial political and economic considerations without making the necessary legal assessments and without adequately deliberating on the state’s ability to implement the obligations that it is assuming.

Some argue that many states sense the rewards of assuming treaty obligations by ratification without any real intent of complying, since international law is hard to enforce absent the presence of a global supra-state police. This line of reasoning is counterproductive, as non-compliance exposes states to ridicule from all directions and legal challenges on multiple forums.

In the last decade, Pakistan has ratified a number of seminal international human rights instruments, the most recent being the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2010.

While Pakistan’s legal commitment to safeguard seminal human rights is an extremely welcome development, in practice the state has largely failed to both sufficiently amend its local laws as required under the ratified treaties or implement the conventions in any meaningful way. Such inaction is itself a violation of these treaties.

Pakistan’s compliance reporting as required under such treaty regimes has been non-existent or disappointing. Shadow reporting conducted by NGOs highlighting Pakistan’s non-compliance has portrayed the state as at worst, lacking the will or intent to conform to its international obligations, and at best, lacking the ability to implement international standards. The pivotal question to ask is whether and when a state should voluntarily assume international obligations, when it knows it cannot comply with them.

Coming back to the issue at hand, one can only speculate why Pakistan recognised the compulsory jurisdiction of the ICJ in 1960 at all, and particularly without making any major exclusions in its declaration. Maybe little legal deliberation went into the decision at the time, or perhaps the absence of the hostility that Pakistan currently perceives had a part to play.

Today Pakistan is a nuclear-armed state that many countries find relevant to the global war on terror. This relevance makes Pakistan susceptible to a number of inter-state legal challenges.

The US withdrew its declaration from the compulsory jurisdiction of the ICJ in 1986 after the adverse judgement in the ICJ Nicaragua vs USA case. Pakistan might withdraw or replace its declaration as well in the near future, but this would be a reactive response.

Pakistan should prevent disputes from arising, or should legally protect its position in the community of nations by routinely complying with, reviewing and revising its international commitments a priori rather than defending its position after allegations of violations have already been made.

The writer is a former legal advisor to the Ministry of Foreign Affairs, and an associate professor of public international law at LUMS.

Published in Dawn, May 29th, 2014