India’s Modified Declaration on the Jurisdiction of the International Court of Justice

The External Affairs Minister of India submitted a Declaration on 27 September 2019 accepting as compulsory ipso facto and without any special agreement the jurisdiction of the International Court of Justice (ICJ) in conformity with article 36 paragraph 2 of the ICJ Statute. This new Declaration replaces the previous one made 45 years ago on 18 September 1974. 1974 Declaration replaced the 1959 Declaration, and the latter replaced the 1956 Declaration. These Declarations, while accepting the compulsory jurisdiction of the Court, provide certain reservations excluding certain kinds of disputes from the Court’s jurisdiction. The new Declaration does not delete any substantive text from the 1974 Declaration while it includes some additions. The two significant additions are to paragraphs 4 and 7. The third addition in the form of paragraph 13 reserves the future right to amend or terminate the Declaration from the moment of notification to that effect. Modified paragraphs 4 and 7 read as follows:

(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved, including the measures taken for protection of national security and ensuring national defence;

 (7) disputes concerning the interpretation or application of a multilateral treaty to which India is not a party; and disputes concerning the interpretation or application of a multilateral treaty to which India is a party, unless all the parties to the treaty are also parties to the case before the Court or the Government of India specially agree to jurisdiction;

The underlined text in the above two paragraphs is the new addition in both paragraphs. There is no clarification from India on the reasons for these modifications. In the absence of any formal explanation, any attempt to identify the likely reasons for modifications remain conjectural. One of the most likely reasons for such modifications emerges from the individual experience of the concerned State as a party to the disputes before the ICJ. Hence, an attempt is made here to evaluate India’s experience before the ICJ in the last forty-five years during the validity of the 1974 Declaration as it may help identify the probable reasons for the new Declaration. India was involved in three contentious cases between 1974 and 2019. Of the three cases, neighboring State Pakistan is a party to the dispute in two cases, and the third case involves the Marshall Islands.

Aerial Incident of 10 August 1999 (Pakistan v. India)

The first case after the 1974 Declaration by India was the Aerial Incident of 10 August 1999 (Pakistan v. India). This case emerged as a result of Pakistan’s application on 21 September 1999, instituting proceedings against India involving the destruction of a Pakistani aircraft on 10 August 1999. India raised preliminary objections to the jurisdiction of the Court in the matter. The Court first dealt with the question of jurisdiction. It mainly focused on three legal propositions on the issue of jurisdiction. Firstly, Pakistan invoked Article 17 of the General Act for Pacific Settlement of International Disputes, of 26 September 1928. Article 17 of the General Act provides for the jurisdiction of the Permanent Court of International Justice (PCIJ). Pakistan argued that by virtue of article 37 of its Statute the jurisdiction of the PCIJ passed on to the ICJ. Further, Pakistan argued that British India had acceded to the General Act of 1928 in 1931, and both India and Pakistan at independence succeeded to British India as parties to it.

In response to this assertion, the Court accepted India’s arguments on the non-applicability of General Act of 1928 because India informed the United Nations Secretary-General on 18 September 1974 that it did not regard itself as bound by the General Act of 1928 since it attained independence, either by succession or otherwise. Pakistan also invoked article 36 paragraph 1 of the Statute. According to article 36 paragraph 1, the jurisdiction of the ICJ “comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Pakistan relied on the reference to the UN Charter. The Court held that “the United Nations Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court.” In response to Pakistan’s argument for the Court’s jurisdiction under article 36 paragraph 2 of the ICJ Statute, India relied on the reservation in its 1974 Declaration, which excludes the “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations.” Based on India’s argument on the Commonwealth reservation, The Court found that it lacked jurisdiction in the matter. Thus, by raising the jurisdiction issue, India was successful in preventing the Court from entertaining the case.

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India)

The second case that India was involved after 1974 was brought by the Republic of Marshall Islands, which filed an application claiming that India breached customary international law obligations to pursue negotiations to cease the nuclear arms race and to pursue negotiations leading to nuclear disarmament. Marshall Islands argued that certain obligations laid down in the Treaty on Non-Proliferation of Nuclear Weapons (NPT) apply to all States as a matter of customary international law. Marshall Islands is a party to the NPT, and India is not. The Marshall Islands also filed similar applications against Pakistan and the United Kingdom (UK). India objected to the jurisdiction of the Court on the ground that the Marshall Islands had failed to show that it had a legal dispute with India at the time of filing of the application before the Court. On 05 October 2016, the Court upheld the objection to jurisdiction raised by India, based on the absence of a dispute between the parties.

Jadhav Case (India v. Pakistan)

The third case involving India after 1974 was again between India and Pakistan, and this time India was the Applicant in the dispute. India filed an application against Pakistan on 08 May 2017, concerning the alleged violations of the Vienna Convention on Consular Relations (VCCR) of 1963. It involved the detention and trial of an Indian national named Mr. Kulbhushan Sudhir Jadhav, who has been sentenced to death by a military court in Pakistan in 2017. India sought for the indication of provisional measures directing Pakistan not to execute Mr. Jadhav and not to take any action that might prejudice the rights of India or Mr. Jadhav. The Court directed Pakistan to take all appropriate measures at its disposal to ensure that Mr. Jadhav would not be executed. In its judgment on 17 July 2019, the Court found that it had jurisdiction and rejected the objection by Pakistan on the admissibility of the application. The Court further found that Pakistan breached obligations under article 36 (1) (a), (b) and (c) and found that Pakistan was under an obligation to inform Mr. Jadhav of his rights and provide India’s consular officers access to him in accordance with article 36 of the VCCR. It further ordered the effective review and reconsideration of the conviction and sentencing of Mr. Jadhav.

In the above three cases, India raised jurisdictional issues and succeeded in preventing the Court from dealing with two cases. In the third case, India succeeded as an applicant in establishing the Court’s jurisdiction against the respondent Pakistan. Hence, the successful outcomes from these cases, particularly on jurisdictional grounds, do not adequately explain the reasons for the modification of India’s Declaration in 2019. However, the substantive issues raised by the Marshall Islands in the Marshall Islands v. India case seem to provide the background for the modification of India’s Declaration in certain respects. The Marshall Islands asked the Court to adjudge and declare that, inter alia, India has violated and continue 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 and with respect to cessation of the nuclear arms race. The substantive legal issue the Marshall Islands raised in the case was in relation to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). India is not a party to the NPT. The Marshall Islands asserted that certain obligations arising from NPT apply to all States as a matter of customary international law. It particularly relied on article VI of the NPT which says that the parties undertake “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.” The Court did not go into the merits of the case as it found that there was no jurisdiction in the matter. Subsequent to this case, the Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted on 7 July 2017. Under this treaty, the States parties undertake not to develop, test, produce, manufacture, otherwise acquire, possess or stockpile, transfer, receive transfer, use or threaten to use nuclear weapons or other nuclear explosive devices. India has not yet become a party to this treaty.

Of the three cases India was involved since 1974, in all probability, India may like to avoid any litigation before the ICJ similar to the Marshall Islands nuclear disarmament case as India would have considered the application was framed on unanticipated legal grounds. Thus the modification to paragraph 7 makes it explicit that India wants to exclude from the jurisdiction of the ICJ “disputes concerning the interpretation or application of a multilateral treaty to which India is not a party; and disputes concerning the interpretation or application of a multilateral treaty to which India is a party, unless all the parties to the treaty are also parties to the case before the Court or the Government of India specially agree to jurisdiction”. Though the 1974 text covered in general all the multilateral treaties, the new Declaration makes it explicit about excluding disputes concerning all the multilateral treaties to which India is a party and to which it is not. However, it is to be noted that the Marshall Islands had not relied on NPT to which India is not a party, but relied on customary international law nature of the obligations arising out of article VI of the NPT. Paragraph 7 modifications in the new Declaration may not adequately cover future such applications for the purpose of exclusion from the ICJ jurisdiction. Therefore, modification of paragraph 4 by way of adding the text “including the measures taken for protection of national security and ensuring national defence” has the potential to exclude disputes invoking customary international law with respect to all the security and defence related issues, including nuclear weapons.

It is to be noted that Pakistan also submitted a new Declaration on 29 March 2017, modifying the previous Declaration of 12 September 1960. While Pakistan’s new Declaration includes some reservations similar to the 1974 Indian Declaration like paragraphs (c), (d), (g) and (h), it also includes paragraph (e) reservation which excludes “all matters related to the national security of the Islamic Republic of Pakistan.” Paragraph 4 of India’s new Declaration excluding the measures taken for the protection of national security and national defence is partly worded similar to paragraph (e) of Pakistan’s 2017 Declaration. It is to be further noted in this regard that the UK also submitted a new Declaration on 22 February 2017. The UK clarified clearly that the new Declaration was in response to the case on nuclear disarmament filed by the Marshall Islands. Thus its Declaration is focused on issues involved in the case. The modified Declaration requires that a state willing to file an application against the UK need to give six months notice of a claim or dispute. This would provide an opportunity for diplomatic engagement with the State concerned. This is closely based on the issue involved in the Marshall Islands nuclear disarmament case on the question of the existence of a dispute between the parties. The other reservation excludes disputes related to “nuclear disarmament and/or nuclear weapons, unless all of the other nuclear-weapon States Party to the Treaty on the Non-Proliferation of Nuclear Weapons have also consented to the jurisdiction of the Court and are party to the proceedings in question.” Both these reservations are formulated specifically to address the procedural as well as substantive issues involved in the Marshal Islands nuclear disarmament case. What is to be underlined is that apparently, the same case led to the modification of Declarations of three States: India, Pakistan, and the UK. However, modifications by India and Pakistan are relatively in general terms in comparison to the UK’s.

As pointed out earlier, India made these modifications after 45 years of the previous Declaration of 1974. The 1974 Declaration was generally considered as including expansive reservations having had the potential to prevent a large variety of disputes. Christian Tomuschat observes that “ [n]owhere has the quantity and density of reservations reached the same level as in the case of India, which has succeeded in shaping an instrument that will certainly prevent any attempt ever to bring an application against it, thus converting the act of acceptance into a barely veiled act of non-acceptance.”(Christian Tomuschat, ‘Article 36’, in Andreas Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary, Second Edition, (OUP, 2012), at pp. 546-547). New additions in 2019 would further expand the scope of India’s reservations. The modifications undertaken in 2019 could have involved the reviewing of the existing reservations. However, the new Declaration only reflects the new additions without disturbing the existing reservations of 1974. For example, one of the reservations which continue to be part of the new Declaration excludes “disputes with non-sovereign States or territories.” It is not clear what kind of disputes are excluded by this reservation, as article 34 of the Statute of the ICJ provides that only “states may be parties in cases before the Court.” This reservation was not there in the declarations before 1974. While it is not clear what prompted India to include this reservation in 1974, its continuation does not seem to hold much significance now.