|
[p.46]
The Court,
composed as above,
delivers the following Judgment:
1. By a letter of 30 August 1971, received in the Registry the same day, the
Ambassador of India to the Netherlands transmitted to the Registrar of the
Court an Application instituting an appeal from the decisions rendered on 29
July 1971 by the Council of the International Civil Aviation Organization ("ICAO")
on the Preliminary Objections raised by India in respect of an Application
and a Complaint brought before the Council by Pakistan on 3 March 1971. In
order to found the jurisdiction of the Court, the Application relies on
Article 84 of the Convention on International Civil Aviation signed at
Chicago on 7 December 1944, Article II of the International Air Services
Transit Agreement opened for signature at Chicago on 7 December 1944, and
Articles 36 and 37 of the Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of Pakistan. In accordance with
paragraph 3 of that Article, all other
[p4] States entitled to appear before the Court were notified.
3. In accordance with Article 13, paragraph I, of the Rules of Court, the
Vice-President acted as President in the case. Pursuant to Article 31,
paragraph 2, of the Statute of the Court, the Government of India chose Dr.
Nagendra Singh, Member of the Permanent Court of Arbitration, to sit as
judge ad hoc.
4. The time-limits for the filing of the written pleadings were fixed, or
extended at the request of the Government of India, by Orders of 16
September and 3 December 1971 and 19 January and 20 March 1972. The
pleadings having been filed within the time-limits prescribed, the case was
ready for hearing on 15 May 1972, the date on which the Rejoinder of the
Government of Pakistan was filed.
5. The Government of Pakistan having advanced the contention that questions
concerning the construction of the Convention on International Civil
Aviation and the International Air Services Transit Agreement were in issue,
the States other than those concerned in the case which are parties to these
two instruments were notified in accordance with Article 63, paragraph 1, of
the Statute. ICAO was also notified and copies of the written
[p5] proceedings were communicated to it in accordance with Article 34,
paragraph 3, of the Statute. By letter of 15 May 1972, the Registrar
informed the Secretary General of ICAO, in accordance with Article 57,
paragraph 5, of the Rules of Court, that 6 June 1972 had been fixed as the
time-limit within which the Organization might submit its observations in
writing. Within the time-limit fixed, the Secretary General stated that ICAO
did not intend to submit observations.
6. Pursuant to Article 44, paragraph 3, of the Rules of Court, the pleadings
and annexed documents were, with the agreement of the Parties, made
accessible to the public as from the date of the opening of the oral
proceedings.
7. Hearings were held from 19 to 23 and on 27, 28 and 30 June and 3 July, in
the course of which the Court heard the oral argument and replies of H.E.Lt.
General Yadavindra Singh and Mr. Palkhivala on behalf of the Government of
India, and of H.E. Mr. Kharas and Mr. Yahya Bakhtiar on behalf of the
Government of Pakistan.
8. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Government of India,
in the Application:
"May it please
[p6] the Court to adjudge and declare, after such proceedings and hearing as
the Court may see fit to direct, and whether the Respondent is present of
absent, that the aforesaid decision of the Council is illegal, null and
void, or erroneous, on the following grounds or any others:
A. The Council has no jurisdiction to handle the matters presented by the
Respondent in its Application and Complaint, as the Convention and the
Transit Agreement have been terminated or suspended as between the two
States.
B. The Council has no jurisdiction to consider the Respondent's Complaint
since no action has been taken by the Applicant under the Transit Agreement;
in fact no action could possibly be taken by the Applicant under the Transit
Agreement since that Agreement has been terminated or suspended as between
the two States.
C. The question of Indian aircraft overflying Pakistan and Pakistan aircraft
overflying India is governed by the Special Regime of 1966 and not by the
Convention or the Transit Agreement. Any dispute between the two States can
arise only under the Special Regime, and the Council has no jurisdiction to
handle any such dispute."
in the Memorial:
"May it please the Court
[p7] to adjudge and declare, after such proceedings and hearings as the Court
may see fit to direct, and whether the Respondent is present or absent, that
the aforesaid decision of the Council is illegal, null and void, or
erroneous, and may it further please the Court to reverse and set aside the
same, on the following grounds or any others:
A. The Council has no jurisdiction to handle the matters presented by the
Respondent in its Application and Complaint, as the Convention and the
Transit Agreement have been terminated or suspended as between the two
States.
B. The Council has no jurisdiction to consider the Respondent's Complaint
since no action has been taken by the Applicant under the Transit Agreement;
in fact no action could possibly be taken by the Applicant under the Transit
Agreement since that Agreement has been terminated or suspended as between
the two States.
C. The question of Indian aircraft overflying Pakistan and Pakistan aircraft
overflying India is governed by the Special Agreement of 1966 and not by the
Convention or the Transit Agreement. Any dispute between the two States can
arise only under that Bilateral Agreement, and the Council has admittedly no
jurisdiction
[p8] to handle any such dispute.
D. The manner and method employed by the Council in reaching its decision
render the decision improper, unfair and prejudicial to India, and bad in
law.
May it also please the Court to order that the costs of these proceedings be
paid by the Respondent."
On behalf of the Government of Pakistan,
in the Counter-Memorial:
"In view of the facts and statements presented in the Counter-Memorial, may
it please the Court to reject the Appeal of the Government of India and to
confirm the decisions of the Council of the International Civil Aviation
Organization and to adjudge and declare:
A. That the question of Pakistan aircraft overflying India and Indian
aircraft overflying Pakistan is governed by the Convention and the Transit
Agreement.
B. That the contention of the Government of India that the Council has no
jurisdiction to handle the matters presented by Pakistan in its Application
is misconceived.
C. That the Appeal preferred by the Government of India against the decision
of the Council in respect of Pakistan's Complaint is incompetent.
D. That if the answer to the submission in C. above is in the negative then
the contention of the Government
[p9] of India that the Council has no jurisdiction to consider the Complaint
of Pakistan, is misconceived.
E. That the matter and method employed by the Council in reaching its
decisions are proper, fair and valid.
F. That the decisions of the Council in rejecting the Preliminary Objections
of the Government of India are correct in law.
May it please the Court to Order that the cost of these proceedings be paid
by the Appellant."
9. The present case concerns an appeal by India against decisions of the
Council of the International Civil Aviation Organization ("ICAO") assuming
jurisdiction in respect (a) of an "Application" by Pakistan made (i) under
Article 84 of the Chicago International Civil Aviation Convention of 1944
("the Chicago Convention" or "the Convention") and (ii) under Section 2 of
Article II of the related International Air Services Transit Agreement of
1944 (the "Transit Agreement"), and also in accordance with Article 2
(Chapter on "Disagreements" of the Council's "Rules for the Settlement of
Differences"); and (b) of a "Complaint" made by Pakistan under Section 1 of
Article II of the Transit Agreement, and in accordance with Article 21
(Chapter on "Complaints")
[p10] of the Council's Rules. Pakistan's case before the Council was based on
alleged breaches by India of the Convention and Transit Agreement. In making
her appeal, India invokes as giving her a right to do so, and as the
foundation of the Court's jurisdiction to entertain it, the same Article 84
of the Convention, and also Section 2 of Article II of the Transit
Agreement. The above-mentioned provisions of these two instruments will be
found set out in paragraphs 17 and 19 below.
10. The substance of the dispute between the Parties, as placed before the
Council of ICAO ("the Council") by Pakistan on 3 March 1971, relates to the
suspension by India of overflights of Indian territory by Pakistan civil
aircraft, on and from 4 February 1971, arising out of a "hijacking" incident
involving the diversion of an Indian aircraft to Pakistan. It should be
mentioned here that hostilities interrupting overflights had broken out
between the two countries in August 1965, ceasing in the following month,
and that after this cessation the Parties adopted what is known as the
Tashkent Declaration of 10 January 1966, by which, and more especially by a
consequential Exchange of Letters between them dated
[p11] 3/7 February 1966, it was agreed, inter alia, that there should be "an
immediate resumption of overflights across each other's territory on the
same basis as that prior to 1 August 1965 . . .", i.e., prior to the
hostilities -- (emphasis added). Pakistan has interpreted this undertaking
as meaning that overflights would be resumed on the basis of the Convention
and Transit Agreement ("the Treaties"): but India has maintained that these
Treaties having (as she alleges) been suspended during the hostilities, were
never as such revived, and that overflights were to be resumed on the basis
of a "special regime" according to which such flights could take place in
principle, but only after permission had been granted by India, -- whereas
under the Treaties they could take place as of right, without any necessity
for prior permission. This special regime, India contends, replaced the
Treaties as between the Parties; but Pakistan denies that any such regime
ever came into existence, and also claims that, not having been registered
as an international agreement under Article 102 of the United Nations
Charter, it cannot now be invoked by India. Consequently Pakistan maintains
that,
[p12] at least since January/ February 1966, the Treaties have never ceased
to be applicable, and that, in accordance .with them (Article 5 of the
Convention and Article I, Section 1, of the Transit Agreement), her civil
aircraft have "the right. . . to make flights into or in transit non-stop
across [Indian] territory and to make stops for non-traffic purposes without
the necessity of obtaining prior permission" -- (Convention, Article 5 --
emphasis added).
11. It must however be stated at the outset, that with these various
matters, and with the substance of this dispute as placed before the
Council, and the facts and contentions of the Parties relative to it, the
Court has nothing whatever to do in the present proceedings, except in so
far as these elements may relate to the purely jurisdictional issue which
alone has been referred to it, namely the competence of the Council to hear
and determine the case submitted by Pakistan. Subject to this necessary
exception, the Court must avoid not only any expression of opinion on these
matters of substance, but any pronouncements which might prejudge, or appear
to prejudge, the eventual decision, whatever it might be, of the Council on
the
[p13] ultimate merits of the case, if the Council is held to be competent to
entertain these -- (see also the case of Interpretation of Article 3,
Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, P.C.I.J.,
Series B, No. 12, p. 18).
12. For the sake of clarity it should be mentioned at this point that when,
in the present Judgment, reference is made to the "merits" of the dispute or
disagreement, what is meant is the merits of the case before the Council.
When reference is intended to the substance of the purely jurisdictional
issue now before the Court, the context will make this clear.
JURISDICTION OF THE COURT TO ENTERTAIN THE APPEAL
13. Before coming to the question of the Council's jurisdiction, the Court
must deal with certain objections to its own jurisdiction to entertain
India's appeal which have been advanced by Pakistan. India, for her part,
contests the right of Pakistan to do this, because the objections concerned
were not put forward at an earlier stage of the proceedings before the Court
as "preliminary" objections under Article 62 of the Court's Rules (1946
edition). It is certainly to be desired that objections to the jurisdiction
of the Court should be
[p14] put forward as preliminary objections for separate decision in advance
of the proceedings on the merits. The Court must however always be satisfied
that it has jurisdiction, and must if necessary go into that matter proprio
motu. The real issue raised by the present case was whether, in the event of
a party's failure to put forward a jurisdictional objection as a preliminary
one, that party might not thereby be held to have acquiesced in the
jurisdiction of the Court. However, since the Court considers its
jurisdiction to be established irrespective of any consent of Pakistan's on
that basis, it will now proceed to consider Pakistan's objections.
14. The chief of these is that the relevant jurisdictional clauses of the
Treaties -- namely Article 84 of the Convention and Section 2 of Article II
of the Transit Agreement -- only allow of an appeal to the Court from a
decision of the Council on the merits of the dispute referred to it, and not
from a decision concerning the Council's jurisdiction to entertain the
reference, whether such jurisdiction is affirmed or rejected by the Council.
Additionally or alternatively, Pakistan claims that since it is one of
India's principal contentions
[p15] that the Treaties are not in force at all (or at any rate in operation)
between the Parties, (a) India cannot have any ius standi to invoke their
jurisdictional clauses for the purpose of appealing to the Court, and (b)
Tndia must admit that the Court in any event lacks jurisdiction under its
own Statute because, in the case of disputes referred to it under treaties
or conventions, Article 36, paragraph 1, of the Statute requires these to be
"treaties and conventions in force" (emphasis added), -- and India denies
that the treaties and conventions here concerned are in force, in the sense
that she alleges that they are at least suspended as between Pakistan and
herself, or their operation is.
15. Pakistan adduces yet other grounds in support of the view that the Court
should hold itself to be incompetent in the matter, such as the effect of
.one of India's reservations to her acceptance of the Court's compulsory
jurisdiction under Article 36, paragraph 2, of its Statute. Also pleaded is
the principle of the "competence de la competence" as making the Council's
jurisdictional decisions conclusive and unappealable. But this prejudges the
question, for if on other
[p16] grounds it appears that these decisions must be held appealable, this
principle could not be permitted to prevail without defeating a priori all
possibility of appeal. Again, having regard to the date of the Treaties
(1944), a query was raised concerning the position under Article 37 of the
Court's Statute. This matter was however disposed of by the Judgment of the
Court in the preliminary phase of the case concerning the Barcelona
Traction, Light and Power Company, Limited (New Application: 1962), I.C.J.
Reports 1964, at pages 26-39. In any event, such matters would become
material only if it should appear that the Treaties and their jurisdictional
clauses did not suffice, and that the Court's jurisdiction must be sought
outside them, which, for reasons now to be stated, the Court does not find
to be the case.
16. It will be convenient to deal first with the contention that India is
precluded from affirming the competence of the Court because she herself
maintains (on the merits of the dispute) that the Treaties are not in force
between the Parties, which contention, if correct, would entail that their
jurisdictional clauses were inapplicable, and that the Treaties themselves
[p17] did not fulfil the conditions contemplated by Article 36, paragraph 1,
of the Court's Statute, in order that the Court should have jurisdiction in
respect of disputes referred to it under those Treaties. The Court however
holds that this contention of Pakistan's is not well-founded for the
following reasons, some of which have been advanced in the Indian arguments
on this part of the case:
(a) What India has affirmed is that the Treaties -- which are multilateral
ones -- are suspended (or that their operation is suspended) as between
herself and Pakistan. This is not the same thing as saying that they are not
in force in the definitive sense, or even that they have wholly ceased to be
in force as between the two Parties concerned.
(b) Nor in any case could a merely unilateral suspension per se render
jurisdictional clauses inoperative, since one of their purposes might be,
precisely, to enable the validity of the suspension to be tested. If a mere
allegation, as yet unestablished, that a treaty was no longer operative
could be used to defeat its jurisdictional clauses, all such clauses would
become potentially a dead letter, even in cases like the present, where one
[p18] of the very questions at issue on the merits, and as yet undecided, is
whether or not the treaty is operative -- i.e., whether it has been validly
terminated or suspended. The result would be that means of defeating
jurisdictional clauses would never be wanting.
(c) The argument based on preclusion could also be turned against Pakistan,
-- for since it is Pakistan not India which denies the jurisdiction of the
Court, and affirms the force of the Treaties, it must be questionable
whether she can be heard to utilize for that purpose an Indian denial of the
force of the Treaties, put forward only as a defence on the merits, which,
ex hypothesi, have not yet been pronounced upon. The question of the Court's
jurisdiction on the other hand, is necessarily an antecedent and independent
one -- an objective question of law -- which cannot be governed by
preclusive considerations capable of being so expressed as to tell against
either Party -- or both Parties.
(d) It is significant that Pakistan also advances the complementary argument
that India's appeal to the Court on the basis of the jurisdictional clauses
of the Treaties necessarily involves an implied admission that those
[p19] Treaties really are in force, -- thus seeking to place India on the
horns of a seemingly inescapable dilemma; -- for according to this doctrine
a party, by the mere fact of invoking the jurisdictional clause of a treaty,
could be held to have made an admission adverse to itself as regards the
very matter in respect of which it had invoked that clause. The Court
considers this to be an unacceptable position. Parties must be free to
invoke jurisdictional clauses, where otherwise applicable, without being
made to run the risk of destroying their case on the merits by means of that
process itself, -- for their case could never either be established or negatived by means of a judicial decision unless a clause conferring
jurisdiction on a court to decide the matter could be invoked on its own
independent, and purely jurisdictional, foundations.
17. Greater weight is to be attached to Pakistan's contention that in the
case of these Treaties, the jurisdictional clauses themselves do not allow
of India's appeal in the present case because, on their correct
interpretation, they only provide for an appeal to the Court against a final
decision of the Council on the merits of any dispute referred
[p20] to it, and not against decisions of an interim or preliminary nature
such as are here involved. These clauses read as follows:
Article 84 of the Convention
Settlement of Disputes
"If any disagreement between two or more contracting States relating to the
interpretation or application of this Convention and its Annexes cannot be
settled by negotiation, it shall, on the application of any State concerned
in the disagreement, be decided by the Council. No member of the Council
shall vote in the consideration by the Council of any dispute to which it is
a party. Any contracting State may, subject to Article 85, appeal from the
decision of the Council to an ad hoc arbitral tribunal agreed upon with the
other parties to the dispute or to the Permanent Court of International
Justice. Any such appeal shall be notified to the Council within sixty days
of receipt of notification of the decision of the Council."
Section 2 of Article II of the Transit Agreement
"If any disagreement between two or more contracting States relating to the
interpretation or application of this Agreement cannot be settled by
negotiation, the provisions of Chapter XVIII of the above-mentioned
[p21] Convention -- [nota: this Chapter contains Article 84 above quoted] --
shall be applicable in the same manner as provided therein with reference to
any disagreement relating to the interpretation or application of the
above-mentioned Convention."
On the wording of these provisions the case in favour of Pakistan's
interpretation of them is as follows. The disagreement on interpretation or
application which is to be decided by the Council under Article 84 is a
disagreement on a substantive issue of merits, and it is this which is to
"be decided by the Council". Consequently, the words giving a right of
"appeal from the decision of the Council" ("the" decision, not "a" decision)
must be confined to such a decision. Also, the disagreement that is
referable to the Council under Article 84, and hence ultimately appealable,
has to be one that could not "be settled by negotiation". Such a
disagreement would normally be confined to the substantive merits of the
issue involved, since disagreements about jurisdiction are (so the argument
runs) not usually in the negotiable category. This consideration reinforces
the view that only those decisions of the Council that consist of final
decisions
[p22] on the merits are appealable under Article 84. It is also pointed out
that the Council's "Rules for the Settlement of Differences" (in Articles 5
and 15) provide for different procedures for dealing with the two types of
decision, and that in the case of jurisdictional decisions, the rules do not
include any obligation to give reasons for the decision, as should normally
be the case for an appealable decision.
18. This view would certainly have to be regarded as correct in respect of
any procedural or otherwise genuinely interlocutory decisions of the
Council, such as decisions about the manner in which a case was to be
presented to it; as to the time-limits within which written pleadings were
to be deposited; or as to the production or admissibility of documents or
other evidence, etc. The Court however thinks that a decision of the Council
relative to its jurisdiction to entertain a dispute does not come within the
same category as the matters just mentioned, even though, like them, it
necessarily has a preliminary character; -- for although, in the purely
temporal sense, a preliminary question is involved, that question is, in its
essence, a substantial question crucially affecting
[p23] the position of the parties relative to the case, notwithstanding that
it does not decide the ultimate merits. In consequence, the Court considers
that for the purposes of the jurisdictional clauses of the Treaties, final
decisions of the Council as to its competence should not be distinguished
from final decisions on the merits. In support of this view the following
further points may be noted:
(a) Although a jurisdictional decision does not determine the "ultimate
merits" of the case, it is a decision of a substantive character, inasmuch
as it may decide the whole affair by bringing it to an end, if the finding
is against the assumption of jurisdiction. A decision which can have that
effect is of scarcely less importance than a decision on the merits, which
it either rules out entirely or, alter-natively, permits by endorsing the
existence of the jurisdictional basis which must form the indispensable
foundation of any decision on the merits. A jurisdictional decision is
therefore unquestionably a constituent part of the case, viewed as a whole,
and should, in principle, be regarded as being on a par with decisions on
the merits as regards any right of appeal that may be given.
[p24]
(b) Nor should it be overlooked that for the party raising a
jurisdictional objection, its significance will also lie in the possibility
it may offer of avoiding, not only a decision, but even a hearing, on the
merits, -- a factor which is of prime importance in many cases. An essential
point of legal principle is involved here, namely that a party should not
have to give an account of itself on issues of merits before a tribunal
which lacks jurisdiction in the matter, or whose jurisdiction has not yet
been established.
(c) At the same time, many cases before the Court have shown that although a
decision on jurisdiction can never directly decide any question of merits,
the issues involved may be by no means divorced from the merits. A
jurisdictional decision may often have to touch upon the latter or at least
involve some consideration of them. This illustrates the importance of the
jurisdictional stage of a case, and the influence it may have on the
eventual decision on the merits, if these are reached -- a factor well known
to parties in litigation.
(d) Not only do issues of jurisdiction involve questions of law, but these
questions may well be as important and complicated
[p25] as any that arise on the merits, -- sometimes more so. They may, in the
context of such an entity as ICAO, create precedents affecting the position
and interests of a large number of States, in a way which no ordinary
procedural, interlocutory or other preliminary issue could do. It would
indeed be hard to accept the view that even the most routine decisions of
the Council on points of the interpretation or application of the Treaties
should be automatically appealable, while decisions on jurisdiction, which
must ex hypothesi involve important general considerations of principle,
should not be, despite the drastic effects which, as already noticed (supra,
sub-paragraph (a)), they are capable of having.
(e) A concluding consideration is that supposing an appeal were made to the
Court from the final decision of the Council on the merits of a dispute; --
it would hardly be possible for the Court either to affirm or reject that
decision, if it found that the Council had all along lacked jurisdiction to
go into the case. This shows that questions relating to the Council's
jurisdiction cannot in the last resort be excluded from the Court's purview:
it is merely a question
[p26] of what is the stage at which the Court's supervision in this respect
is to be exercised. Clearly, not only do obvious reasons of convenience call
for such exercise as early as possible -- in the present case, here and now
-- but also substantial considerations of principle do so, -- for it would
be contrary to accepted standards of the good administration of justice to
allow an international organ to examine and discuss the merits of a dispute
when its competence to do so was not only undetermined but actively
challenged. Yet this is precisely what the Court would be allowing if it now
held itself not to have jurisdiction to deal with the matter because it
could only hear appeals from final decisions of the Council on the merits.
19. The foregoing paragraphs deal with the question of the Court's
jurisdiction to entertain India's appeal as it arises generally on the
relevant jurisdictional clauses. A special jurisdictional issue exists
however, not on Pakistan's "Application" to the Council, but on her
"Complaint" (see paragraph 9, supra) ostensibly made under and by virtue of
Section 1 of Article II of the Transit Agreement, which reads as follows:
"A contracting State which
[p27] deems that action by another contracting State under this Agreement is
causing injustice or hardship to it, may request the Council to examine the
situation. The Council shall thereupon inquire into the matter, and shall
call the States concerned into consultation. Should such consultation fail
to resolve the difficulty, the Council may make appropriate findings and
recommendations to the contracting States concerned. If thereafter a
contracting State concerned shall in the opinion of the Council unreasonably
fail to take suitable corrective action, the Council may recommend to the
Assembly of the above-mentioned Organization that such contracting State be
suspended from its rights and privileges under this Agreement until such
action has been taken. The Assembly by a two-thirds vote may so suspend such
contracting State for such period of time as it may deem proper or until the
Council shall find that corrective action has been taken by such State."
The special objection advanced by Pakistan to the existence of any right of
appeal to the Court relative to Council action under this provision extends
not merely to appeals about questions concerning the Council's competence in
the
[p28] matter of "complaints" which the Council may be requested to examine,
but also to appeals regarding the eventual results of the Council's action
under this same provision (i.e., its findings, recommendations, etc.), -- in
short, appeals relating to the "ultimate merits" of the "complaint" as dealt
with by the Council. The gravamen of Pakistan's objection is in effect that
the right of reference to the Council and thence by way of appeal to the
Court, given by Section 2 of Article II, applies, in the context, only to a
"disagreement. . . relating to the interpretation or application" of Section
1 itself, and not to the substance of the "complaint" the Council is
requested to examine by reason of that Section, or to the outcome of what
the Council does about it. In other words, provided the Council applies
Section 1 correctly, following the prescribed courses and taking the
prescribed steps, the result is non-appealable, and so, a fortiori, would be
any decision of the Council to assume jurisdiction in respect of a
"complaint" made by virtue of this Section.
20. The Court has no doubt that the situation contemplated by Section 1 of
Article II of the Transit Agreement is quite a
[p29] different one from that of Article 84 of the Convention (and hence of
Section 2 of Article II of the Transit Agreement), -- so that whatever may
be the exact legitimate range of a "complaint" made under Section 1, its
primary purpose must be to permit redress against legally permissible action
that nevertheless causes injustice or hardship. In other words, the basic
situation contemplated by Section 1 is where a party to the Agreement,
although acting within its legal rights under the Treaties, has nevertheless
caused injustice or hardship to another party -- a case not of illegal
action -- not of alleged breaches of the Treaties -- but of action lawful,
yet prejudicial. In such a case it is to be expected that no right of appeal
to the Court would lie, -- for the findings and recommendations to be made
by the Council under this Section would not be about legal rights or
obligations: they would turn on considerations of equity and expediency such
as would not constitute suitable material for appeal to a court of law.
21. This is not to say that a "complaint" can never deal with matters that
would primarily form the subject of an "application", or allege illegalities
as having caused
[p30] the injustice or hardship complained of. But if it does so, then to
that extent it necessarily assumes the character of an "application". In
short, it follows from the very nature of the distinction described in the
preceding paragraph, that in so far as a "complaint" exceeds the bounds of
the type of allegation contemplated by Section 1, and relates not to lawful
action causing hardship or injustice, but to illegal action involving
breaches of the Treaties, it becomes assimilable to the case of an
"application" for the purposes of its appealability to the Court. Unless
this were so, the following paradox would arise. If for the reasons urged on
behalf of Pakistan, its "Complaint" were non-appealable, but the
"Application" (which alleges a "disagreement" under both Convention and
Transit Agreement, involving charges of breaches of these Treaties) were
appealable, then, the Council having assumed jurisdiction in respect of both
"Application" and "Complaint", it would result that if the Court should
allow the appeal on the "Application" (i.e., find that the Council has no
jurisdiction to entertain it), nevertheless the non-appealable "Complaint"
could and would still go on before the
[p31] Council, although the issues it involved were almost identical.
Therefore, although precluded by the Court's decision from pronouncing on
the question of the alleged breaches of the Treaties in respect of the
"Application", the Council would be able to make these very same
pronouncements under the head of the "Complaint", thus defeating the whole
purpose of the Court's decision which should have had the effect of
preventing the Council pronouncing at all on the question of the alleged
breaches. Naturally the Council would in any case be in no way prevented
from dealing with those aspects of the matter that related to injustice and
hardship.
22. While drawing attention to the above considerations, the Court does not
wish to make any final pronouncement on the theory of the matter because it
recognizes that this is an area in which it may be difficult to draw hard
and fast distinctions or say definitely on which side of the line a given
case may fall. In the present one, however, the Court entertains no dpubts
at all. Pakistan's "Application" and "Complaint" are set out in Annexes A
and B of the Indian Memorial before the Court, and even a brief glance at
them shows not only that the
[p32] "Complaint" makes exactly the same charges of breaches of the Treaties
as the "Application", but that it does so in almost identical language. The
same applies to the redress requested, except that the "Application" asks
for damages and the "Complaint" does not. In all other respects the various
remaining heads of redress are the same in both cases.
23. It is evident therefore that this particular "Complaint" does not -- or
for the most part does not -- relate to the kind of situation for which
Section 1 of Article II was primarily intended, namely where the injustice
and hardship complained of does not result from action by the other party
concerned of a definitively illegal character, but where the Treaties are
applied lawfully but prejudicially. In the present case it is abundantly
clear, from the whole tenor of the "Complaint", that although it does duly
allege injustice and hardship (but so also does the "Application"), this
injustice and hardship was such as resulted from action said to be illegal
because in breach of the Treaties.
24. Having regard to these considerations, the Court must hold the Council's
decision assuming jurisdiction in respect of Pakistan's "Complaint"
[p33] to be appealable in so far as it covers the same ground as the
"Application".
25. To sum up on the question of the Court's jurisdiction to entertain
India's appeal, the conclusion in respect both of Pakistan's "Application"
and of her "Complaint" to the Council must be that, for the reasons given
above, the various objections made to the competence of the Court cannot be
sustained, whether they are based on the alleged inapplicability of the
Treaties as such, or of their jurisdictional clauses. Since therefore the
Court is invested with jurisdiction under those clauses and, in consequence
(see paragraphs 14-16 above), under Article 36, paragraph 1, and under
Article 37, of its Statute, it becomes irrelevant to consider the objections
to other possible bases of jurisdiction.
26. Before leaving this part of the case, and since this is the first time
any matter has come to it on appeal, the Court thinks it useful to make a
few observations of a general character on the subject. The case is
presented to the Court in the guise of an ordinary dispute between States
(and such a dispute underlies it). Yet in the proceedings before the Court,
it is the act of a third entity -- the Council of
[p34] ICAO -- which one of the Parties is impugning and the other defending.
In that aspect of the matter, the appeal to the Court contemplated by the
Chicago Convention and the Transit Agreement must be regarded as an element
of the general regime established in respect of ICAO. In thus providing for
judicial recourse by way of appeal to the Court against decisions of the
Council concerning interpretation and application -- a type of recourse
already figuring in earlier conventions in the sphere of communications --
the Chicago Treaties gave member States, and through them the Council, the
possibility of ensuring a certain measure of supervision by the Court over
those decisions. To this extent, these Treaties enlist the support of the
Court for the good functioning of the Organization, and therefore the first
reassurance for the Council lies in the knowledge that means exist for
determining whether a decision as to its own competence is in conformity or
not with the provisions of the treaties governing its action. If nothing in
the text requires a different conclusion, an appeal against a decision of
the Council as to its own jurisdiction must therefore be receivable since,
from the standpoint
[p35] of the supervision by the Court of the validity of the Council's acts,
there is no ground for distinguishing between supervision as to
jurisdiction, and supervision as to merits.
JURISDICTION OF THE COUNCIL OF ICAO TO ENTERTAIN THE MERITS OF THE CASE
27. The Court now turns to the substantive issue of the correctness of the
decisions of the Council dated 29 July 1971. The question is whether the
Council is competent to go into and give a final decision on the merits of
the dispute in respect of which, at the instance of Pakistan, and subject to
the present appeal, it has assumed jurisdiction. The answer to this question
clearly depends on whether Pakistan's case, considered in the light of
India's objections to it, discloses the existence of a dispute of such a
character as to amount to a "disagreement. . . relating to the
interpretation or application" of the Chicago Convention or of the related
Transit Agreement (see paragraph 17, supra). If so, then prima facie the
Council is competent. Nor could the Council be deprived of jurisdiction
merely because considerations that are claimed to lie outside the Treaties
may be involved if, irrespective of this, issues concerning the
interpretation
[p36] or application of these instruments are nevertheless in question. The
fact that a defence on the merits is cast in a particular form, cannot
affect the competence of the tribunal or other organ concerned, -- otherwise
parties would be in a position themselves to control that competence, which
would be inadmissible. As has already been seen in the case of the
competence of the Court, so with that of the Council, its competence must
depend on the character of the dispute submitted to it and on the issues
thus raised -- not on those defences on the merits, or other considerations,
which would become relevant only after the jurisdictional issues had been
settled. It is desirable to stress these points because of the way,
perfectly legitimate though it was, in which the Appeal has been presented
to the Court.
28. Before proceeding further, it will be convenient to re-state Pakis-tan's
claim in its simplest form, and without going into any details or side
issues. It is to the effect that India, by suspending -- or rather,
strictly, refusing to allow overflight of her territory by Pakistan civil
aircraft -- was in breach of the Treaties, which Pakistan claims have never
ceased to be applicable, [p37] and both of which conferred overflight rights, and certain landing
rights, on Pakistan, -- and that this suspension, or rather prohibition, did
not take place, or was no longer taking place, in the particular
circumstances -- viz. "war" or declared "state of national emergency" -- in
which, according to Article 89 of the Convention (cited infra, paragraph
40), it could alone (so Pakistan contends) be justified. Consequently the
legal issue that has to be determined by the Court really amounts to this,
namely whether the dispute, in the form in which the Parties placed it
before the Council, and have presented it to the Court in their final
submissions (supra, paragraph 8), is one that can be resolved without any
interpretation or application of the relevant Treaties at all. If it cannot,
then the Council must be competent.
29. In effect, India has sought to maintain that the dispute could be
resolved without any reference to the Treaties, and hence that, this being
so, it is a dispute with which the Council can have no concern, and which
lies entirely outside its competence. The claim that the Treaties are
irrelevant to the present situation regarding Pakistan overflights
[p38] is based on and involves the following main contentions: --
(1) The Treaties are not in force, or they are suspended, because
(a) they were or became terminated or suspended as between the Parties upon
the outbreak of hostilities in 1965 and have never been revived, but were
replaced by a "special regime" in respect of which the Council could have no
jurisdiction, and according to which Pakistan aircraft could only overfly
India with prior permission (see as to this, paragraph 10, supra);
(b) India in any case became entitled under general international law to
terminate or suspend the Treaties as from January 1971, by reason of a
material breach of them, for which Pakistan was responsible, arising out of
the hijacking incident that then occurred.
(2) The issue involved by the case presented to the Council by Pakistan is
one of the termination or suspension of the Treaties, not of their
interpretation or application which alone the CounciJ is competent to deal
with under the relevant jurisdictional clauses. This contention postulates
that the notion of interpretation or application does not comprise that of
termination or suspension.
30. The first of these main contentions,
[p39] under both its heads, clearly belongs to the merits of the dispute into
which the Court cannot go; but certain preliminary points are relevant to
the jurisdictional aspects of the case and to a correct appreciation of the
Indian position in that respect.
(a) As regards the contention that the Treaties were terminated or
suspended, such notices or communications as there were on the part of India
appear to have related to overflights rather than to the Treaties as such;
although, admittedly, overflight rights constitute a major item of the
Treaties, and a termination or suspension may well relate to part only of a
treaty. Thus the Indian Note of 4 February 1971, following upon the
hijacking incident, was in terms confined to suspending overflights. As
regards the earlier period, from 1965 onwards, the statement made in the
Indian Memorial before the Court, paragraph 12, was to the effect that the
"Convention and the Transit Agreement as between the two States were . . .
suspended wholly or in any event in relation to overflights and landings for
non-traffic purposes" (emphasis added).
(b) India does not appear at the time of the hijacking incident to have
indicated
[p40] which particular provisions of the Treaties -- more especially of the
Chicago Convention -- were alleged to have been breached by Pakistan. She
was not of course in any way obliged to do so at that stage, but the point
is a material one on the jurisdictional issue for reasons to be stated later
(see infra, paragraph 38). What was alleged in a Note of 3 February 1971,
preceding the abovementioned Note of 4 February, was a "violation of all
norms of international behaviour and of International Law". In the same way,
in the letters of 4 and 10 February addressed on behalf of the Government of
India to the President of the Council of ICAO concerning the hijacking
incident, Pakistan's action was stated to be not in accordance with
"international law and usage and custom"; and again, a "deliberate act . . .
in violation of international law, usage and custom" (letter of 4 February);
and similarly (letter of 10 February), to be "in clear violation of
international law". But with regard to the Treaties, all that was stated
(letter of 4 February) was that Pakistan's action was "contrary to the
principles of the Chicago Convention and other international Conventions".
The only specific provisions
[p41] mentioned were certain articles of the Tokyo and Hague Conventions
about unlawful acts on board aircraft, and not provisions of the Chicago
Convention or Transit Agreement. Later, in the Indian Preliminary Objections
of 28 May 1971, made before the Council, the charge was of conduct which
"amounted to the very negation of all the claims and objectives, the scheme
and provisions of the Convention . . . and . . . Transit Agreement".
Similarly, in the proceedings before the Court, the charge of "material
breach of treaty" was not particularized much more fully than in the
language used in paragraph 27 of the Indian Memorial, where the hijacking
incident was characterized as amounting to "a flagrant violation of
international obligations relating to the assurance of safety of air travel,
enjoined by the Convention and the Transit Agreement and also by. . ." (here
several other conventions and instruments were specified).
(c) As mentioned, the justification given by India for the suspension of the
Treaties in February 1971 (if in fact anything other than a quasipermanent
prohibition of overflights was involved) was not said to lie in the
provisions of the Treaties themselves, but
[p42] in a principle of general international law, or of international treaty
law, allowing of suspension or termination on this ground -- and the 1969
Vienna Convention on the Law of Treaties was in particular invoked. In
consequence, so it was said, the Chicago Convention and Transit Agreement
were irrelevant and had no bearing on the matter, because the Indian action
had been taken wholly outside them, on the basis of general international
law.
31. In considering further the Indian contentions described in paragraph 29,
supra, a convenient point of departure will be the question mentioned in
sub-paragraph (c) of paragraph 30 because, in the proceedings before the
Court, this question assumed almost more prominence in the Indian arguments
than any other. Furthermore, it involves a point of principle of great
general importance for the jurisdictional aspects of this -- or of any --
case. This contention is to the effect that since India, in suspending
overflights in February 1971, was not invoking any right that might be
afforded by the Treaties, but was acting outside them on the basis of a
general principle of international law, "therefore" the Council, whose
jurisdiction was
[p43] derived from the Treaties, and which was entitled to deal only with
matters arising under them, must be incompetent. Exactly the same attitude
has been evinced in regard to the contention that the Treaties were
suspended in 1965 and never revived, or were replaced by a special regime.
The Court considers however, that for precisely the same order of reason as
has already been noticed in the case of its own jurisdiction in the present
case, a mere unilateral affirmation of these contentions -- contested by the
other party -- cannot be utilized so as to negative the Council's
jurisdiction. The point is not that these contentions are necessarily wrong
but that their validity has not yet been determined. Since therefore the
Parties are in disagreement as to whether the Treaties ever were (validly)
suspended or replaced by something else; as to whether they are in force
between the Parties or not; and as to whether India's action in relation to
Pakistan overflights was such as not to involve the Treaties, but to be
justifiable aliter et aliunde; -- these very questions are in issue before
the Council, and no conclusions as to jurisdiction can be drawn from them,
at least at this stage,
[p44] so as to exclude ipso facto and a priori the competence of the Council.
32. To put the matter in another way, these contentions are essentially in
the nature of replies to the charge that India is in breach of the Treaties:
the Treaties were at the material times suspended or not operative, or
replaced, -- hence they cannot have been infringed. India has not of course
claimed that, in consequence, such a matter can never be tested by any form
of judicial recourse. This contention, if it were put forward, would be
equivalent to saying that questions that prima facie may involve a given
treaty, and if so would be within the scope of its jurisdictional clause,
could be removed therefrom at a stroke by a unilateral declaration that the
treaty was no longer operative. The acceptance of such a proposition would
be tantamount to opening the way to a wholesale nullification of the
practical value of jurisdictional clauses by allowing a party first to
purport to terminate, or suspend the operation of a treaty, and then to
declare that the treaty being now terminated or suspended, its
jurisdictional clauses were in consequence void, and could not be invoked
for the purpose of contesting
[p45] the validity of the termination or suspension, -- whereas of course it
may be precisely one of the objects of such a clause to enable that matter
to be adjudicated upon. Such a result, destructive of the whole object of adjudicability, would be unacceptable.
33. The Court now proceeds to the last main category of Indian contention
which, though more nearly relevant to the purely jurisdictional issue than
those so far discussed, is nonetheless, like them, closely bound up with the
merits. This contention is to the effect that Article 84 of the Chicago
Convention, and hence by reference Section 2 of Article II of the Transit
Agreement, only allows the Council to entertain disagreements relating to
the "interpretation or application" of these instruments, -- whereas
(according to India) what is involved in this case is not any question of
the interpretation or application of the Treaties, but of their termination
or suspension, -- and since (so India contends) the notion of interpretation
or application does not extend to that of termination or suspension, the
Council's competence is automatically excluded. Alternatively expressed, the
Indian contention is that, since the Treaties have
[p46] been terminated or suspended, it follows ex hypothesi that no question
of their interpretation or application can arise, such as alone the Council
would be competent to consider: non-existent treaties cannot be interpreted
or applied.
34. It is evident that this contention, although getting much nearer to the
real issue of what the Council can properly take cognizance of under the
jurisdictional clauses of the Treaties, having regard to their actual
wording, involves the same underlying assumption that the Treaties have in
fact been (validly) terminated or suspended, and also that a unilateral act
or allegation of India's in that sense suffices. In consequence three
strands to this Indian contention can be seen to be interwoven: (i) the
Treaties are terminated or suspended, so they cannot be interpreted or
applied at all; (ii) the question whether they have been (validly)
terminated or suspended, is not one of interpretation or application; (iii)
in any event the answer to that question depends on considerations lying
outside the Treaties altogether. On each of these grounds India contends
that the issues involved are not within the Council's terms of reference
which are limited
[p47] to interpreting and applying the Treaties. Once more it is evident
that, with respect to all three strands of this Indian contention, with the
possible exception of certain aspects of the second one, the argument
involves and depends upon questions of merits. In relation to it, the
Parties debated at considerable length whether the notion of the
interpretation and application of a treaty can, at least in some
circumstances, embrace that of a termination or suspension of it; and also
as to whether any inherent limitations on the powers of the Council to deal
with certain types of legal questions must be presumed. But until it has
been determined by the proper means that what is involved is indeed an issue
solely of termination or suspension of the Treaties, and further that no
question of their interpretation or application arises or can arise (and
this is the only real issue involved here), the problem of whether the one
notion is comprised by the other can, for present purposes, be regarded as
hypothetical.
35. Thus far, only the negative aspects of the case have been examined; that
is, the reasons why the various contentions so far considered do not have
any real bearing on the
[p48] question of the competence of the Council. It is now time to turn to
the positive aspects, from which it will appear not only that Pakistan's
claim discloses the existence of a "disagreement. . . relating to the
interpretation or application" of the Treaties, but also that India's defences equally involve questions of their interpretation or application.
36. The nature of Pakistan's "Application" and "Complaint" to the Council,
the full texts of which are set out in Annexes A and B of the Indian
Memorial in the proceedings before the Court, has already been indicated in
general terms in the discussion (supra, paragraph 22) about the Court's
jurisdiction to entertain the appeal on Pakistan's "Complaint". Specific
provisions of the Treaties -- in particular Article 5 of the Convention and
Section 1 of Article I of the Transit Agreement -- were cited by Pakistan as
having been infringed by India's denial of over-flight rights. The existence
of a "disagreement" relating to the application of the Treaties was
affirmed. There can therefore be no doubt about the character of the case
presented by Pakistan to the Council. It was essentially a charge of
breaches of the Treaties, -- and
[p49] in order to determine these, the Council would inevitably be obliged to
interpret and apply the Treaties, and thus to deal with matters
unquestionably within its jurisdiction. (As will be seen later -- infra,
paragraphs 38-43 -- the underlying issue of the continued applicability of
the Treaties themselves, is one that would equally require an examination of
certain provisions of them both.)
37. India also, in the terms indicated in paragraph 30 (b), supra, has made
charges of a material breach of the Convention by Pakistan, as justifying
India in purporting to put an end to it, or suspend its operation and that
of the Transit Agreement. Thus the case is one of mutual charges and
counter-charges of breach of treaty which cannot, by reason of the very fact
that they are what they are, fail to involve questions of the
inter-pretation and application of the treaty instruments in respect of
which the breaches are alleged. It is however possible to be more specific
than this, for not only do Pakistan's claims cite particular articles of the
Treaties, but both India's counter-charges and her defences to those of
Pakistan, can be seen to involve various treaty provisions. These will
[p50] now be considered in turn.
38. In the first place, India's allegation of a material breach of the
Treaties by Pakistan, as justifying India in treating them as terminated or
suspended, is inherently and by its very nature, one that must involve the
examination of the Treaties in order to see whether, according to the
definition of a material breach of treaty contained in Article 60 of the
1969 Vienna Convention on the Law of Treaties, there has been (paragraph 3
(b)) a violation by Pakistan of "a provision essential to the accomplishment
of the object or purpose of the Treaty". The fact that, as has been seen in
paragraph 30 (b), supra, India has in very comprehensive language alleged a
material breach of the Treaties, can only increase the need for considering
what particular provisions are involved by this allegation. Even if the
allegation, because of its generality, is to be regarded as one of conduct
on the part of Pakistan amounting to a complete "repudiation of the treaty"
(see paragraph 3 (a) of Article 60 of the Vienna Convention), it would still
be necessary to examine the Treaties in order to see whether, in relation to
their provisions as a whole, and in
[p51] particular those relating to the "safety of air travel" which India
herself invoked (end of paragraph 30 (b), supra), Pakistan's conduct must be
held to constitute such a repudiation.
39. Next, as regards the Indian claim that the Treaties had been replaced by
a special regime, it seems clear that certain provisions of the Chicago
Convention must be involved whenever two or more parties to it purport to
replace the Convention, or some part of it, by other arrangements made
between themselves. These provisions read as follows:
Article 82 (first sentence)
Abrogation of Inconsistent Arrangements
"The Contracting States accept this Convention as abrogating all obligations
and understandings between them which are inconsistent with its terms, and
undertake not to enter into any such obligations and understandings."
Article 83
Registration of New Agreements
"Subject to the provisions of the preceding Article, any contracting State
may make arrangements not inconsistent with the provisions of this
Convention. Any such arrangement shall be forthwith registered with the
Council, which shall make it public as soon as possible."
There is no need for comment here,
[p52] except to say that any special regime instituted between the Parties,
and more especially any disagreement (such as there certainly is) concerning
its existence and effect, would immediately raise issues calling for the
interpretation and application by the Council of the above-quoted
provisions.
40. Finally, as regards the contention which formed the sub-stratum of the
whole Indian position, namely that the Treaties were or became terminated or
suspended between the Parties, -- Pakistan, in the course of the proceedings
before the Court, contended that these matters by no means lay outside the
ambit of the Treaties but were, on the contrary, regulated, at least
implicitly, by two provisions of the Convention, Articles 89 and 95, which
read as follows:
Article 89
War and Emergency Conditions
"In case of war, the provisions of this Convention shall not affect the
freedom of action of any of the contracting States affected, whether as
belligerents or as neutrals. The same principle shall apply in the case of
any contracting State which declares a state of national emergency and
notifies the fact to the Council."
Article 95
Denunciation of Convention
"(a) Any contracting
[53] State may give notice of denunciation of this Convention three years
after its coming into effect by notification addressed to the Government of
the United States of America, which shall at once inform each of the
contracting States.
(b) Denunciation shall take effect one year from the date of the receipt of
the notification and shall operate only as regards the State effecting the
denunciation."
(A provision having broadly the same effect as Article 95 of the Convention
appears in the Transit Agreement as Article III; and Article I of this
Agreement (Sections 1 and 2) covers the same sort of ground as Article 89 of
the Convention so far as concerns rights of overflight and of landing for
non-traffic purposes. These Articles need not be quoted here.)
41. In connection with the provisions cited in the preceding paragraph,
Pakistan pleaded the rule (approved by the Court in the North Sea
Continental Shelf cases -- I.CJ. Reports 1969, Judgment, paragraph 28),
according to which, when an agreement or other instrument itself provides
for the way in which a given thing is to be done, it must be done in that
way or not at all. On this basis Pakistan contended that not only was
[p54] there no provision for the suspension of the Convention as such, but
that this possibility was impliedly excluded by Articles 89 and 95. All that
was afforded (by Article 89) was a right in certain specified circumstances
to disregard the Convention, and temporarily to stop granting the rights it
provided for. As soon as these circumstances ceased to exist (as, in the
instant case, Pakistan contended that they had), this licence to disregard
came to an end, and the obligation to resume the full operation of the
rights provided for by the Convention automatically revived. Such was
Pakistan's contention.
42. In the proceedings before the Court, India gave a different
interpretation of this provision. This was, broadly, that Article 89 was a
mere enabling, or in a certain sense saving, clause, the object of which was
to make it clear that the Convention left intact, and was not intended to
affect, the rights which in certain circumstances the parties might derive
from sources outside the Convention, under general international law or
otherwise. The Article was (so India said) an example of, or equivalent to,
a type of clause often found in treaties, to the effect that the provisions
of
[p55] the treaty were without prejudice to the rights ab extra of the parties
in certain respects: it had no direct bearing on the present case.
43. The Court must obviously refrain from pronouncing on the validity or
otherwise of the opposing views of the Parties as to the object and correct
interpretation of Articles 89 and 95, since this touches directly upon the
merits of the case. But this opposition cannot but be indicative of a direct
conflict of views as to the meaning of the Articles, or in other words of a
"disagreement . . . relating to the interpretation or application of [the]
Convention"; -- and if there is even one provision -- and especially a
provision of the importance of Article 89 -- as to which this is so, then
the Council is invested with jurisdiction, were it but the only such
provision to be found, which is clearly not the case. However, the Court
having thus decided that the Council is competent, is not called upon to
define further the exact extent of that competence, beyond what has already
been indicated.
44. There is one more matter which the Court has to consider. It was
strenuously argued on behalf of India, though denied by Pakistan, that
irrespective
[p56] of the correctness in law or otherwise of the Council's decision
assuming jurisdiction in the case, from which India is now appealing, it was
vitiated by various procedural irregularities, and should accordingly, on
that ground alone, be declared null and void. The argument was that, but for
these alleged irregularities, the result before the Council would or might
have been different. Consequently, it was said, if the Court endorsed the
Indian view as to the existence of these procedural irregularities, it
should refrain from now pronouncing on the question of the Council's
jurisdiction, declare the latter's decision null and void, and send the case
back to it for re-decision on the basis of a correct procedure.
45. The Court however does not deem it necessary or even appropriate to go
into this matter, particularly as the alleged irregularities do not
prejudice in any fundamental way the requirements of a just procedure. The
Court's task in the present proceedings is to give a ruling as to whether
the Council has jurisdiction in the case. This is an objective question of
law, the answer to which cannot depend on what occurred before the Council.
Since the Court holds that the Council
[p57] did and does have jurisdiction, then, if there were in fact procedural
irregularities, the position would be that the Council would have reached
the right conclusion in the wrong way. Nevertheless it would have reached
the right conclusion. If, on the other hand, the Court had held that there
was and is no jurisdiction, then, even in the absence of any irregularities,
the Council's decision to assume it would have stood reversed.
46. For these reasons,
THE COURT,
by thirteen votes to three,
(1) rejects the Government of Pakistan's objections on the question of its
competence, and finds that it has jurisdiction to entertain India's appeal;
by fourteen votes to two,
(2) holds the Council of the International Civil Aviation Organization to be
competent to entertain the Application and Complaint laid before it by the
Government of Pakistan on 3 March 1971; and in consequence, rejects the
appeal made to the Court by the Government of India against the decision of
the Council assuming jurisdiction in those respects.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of August, one thousand nine
hundred and
[p58] seventy-two, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of India
and to the Government of Pakistan, respectively.
(Signed) F. AMMOUN, Vice-President.
(Signed) S. AQUARONE, Registrar.
President Sir Muhammad Zafrulla Khan makes the following declaration:
I much regret 1 am unable to agree that Article 84 of the Convention read
with Articles 5 (4), 15 and 18 of the Rules for the Settlement of
Differences provides a right of appeal against a decision of the Council of
ICAO rejecting a preliminary objection to its competence to handle an
application or complaint. It seems to me that the considerations that have
impelled the Court to arrive at the opposite conclusion do not carry the
matter any further than the desirability of a provision to that effect.
However strong that desirability may be it cannot serve as a substitute for
the lack of such a provision in the Convention read with the relevant rules.
The entire scheme of the Rules excludes the possibility of an appeal against
a decision of the Council rejecting a preliminary objection against its
competence. The remedy for the correction of this situation,
[p59] if a correction should be desired, would be by way of amendment of the
Convention and the Rules, and not by reading into them a meaning which they
are not capable of bearing.
Nor am I able to agree that Section 1 of Article II of the Transit Agreement
contemplates only cases of injustice or hardship occasioned by action which
is lawful but is prejudicial, and that to the extent to which a complaint
under that Section alleges unlawful action as the cause of the injustice or
hardship complained of, it becomes assimilable to the case of an application
for the purposes of appealability to the Court.
In view, however, of the finding of the Court that the Council of ICAO has
jurisdiction to entertain the Application and Complaint laid before it by
the Government of Pakistan on 3 March 1971, a finding with which I am in
entire agreement, my dissent on the question of the admissibility of India's
appeal assumes a purely academic aspect.
A large part of the submission of India's counsel to the Court was devoted
to the exposition of irregularities of procedure alleged to have been
committed by the Council of ICAO in dealing with India's Preliminary
Objection to its assumption of jurisdiction
[p60] in respect of Pakistan's Application and Complaint. The purpose of this
exposition was to persuade the Court to hold that the proceedings before the
Council were vitiated by these alleged irregularities and that the decision
of the Council on India's Preliminary Objection was thus rendered void and
of no effect and should consequently be set aside.
These alleged irregularities fall broadly into two categories; those
relating to the "manner and method" of arriving at the decision appealed
against, and those resulting from failure to comply with the requirements
laid down in Article 15 of the Rules for the Settlement of Differences.
As regards the first category, India's objections and suggestions were
thoroughly debated in the Council (Memorial of India, Annex E, (e),
Discussion, paras. 50-84) and the rulings of the President were upheld by
the Council. Nothing urged by India's counsel in his submissions to the
Court in this context has served to raise any doubt in my mind concerning
the correctness and propriety of the President's rulings and of the
procedure followed by the Council.
As regards the second category, the brief answer to India's objections is
that Article 15 of the
[p61] Rules for the Settlement of Differences has no relevance to a decision
on a preliminary objection. The subject of Preliminary Objection and Action
Thereon is dealt with in Article 5 of the Rules. This Article is comprised
in Chapter III of the Rules, which deals with Action upon Receipt of
Applications. The Article is self-contained and comprehensive. The procedure
for dealing with a preliminary objection is prescribed in paragraph (4) of
Article 5 which runs as follows: "If a preliminary objection has been filed,
the Council, after hearing the parties, shall decide the question as a
preliminary issue before any further steps are taken under these Rules."
This is exactly what the Council did.
Article 15 of the Rules is contained in Chapter IV which prescribes the
procedure to be followed in respect of "Proceedings", which start after a
preliminary objection has been disposed of and which relate to the merits of
the case. Article 15 which is headed "Decision" obviously has reference to a
decision on the merits, and does not relate back to a decision on a
preliminary objection disposing of the question as a preliminary issue
before the commencement of proceedings on the merits.
The
[p62] record of the discussion before the Council does not show that India
urged compliance by the Council with the requirements of Article 15. Even
before the Court some of the alleged irregularities were mentioned for the
first time in the oral submissions of counsel and the list was expanded in
reply. Be that as it may, it is clear that Article 15 of the Rules has no
application to a decision on a preliminary objection. The Council rightly
proceeded on that assumption and not a single member gave expression to a
difference of view.
Judge Lachs makes the following declaration:
Feeling as I do that there are certain observations which should be made on
some aspects of the Judgment, I avail myself of the right conferred by
Article 57 of the Statute of the Court and append hereunder the following
declaration.
I
While I fully agree with the findings of the Court concerning its competence
to entertain the appeal, I wish to comment further on the interpretation of
Article 84 of the Chicago Convention on International Civil Aviation and
Section 2 of Article II of the International Air Services Transit Agreement.
In examining the sense and import of "the decision", as used in Article 84,
its strict
[p63] verbal meaning should constitute a point of departure but cannot be
conclusive, for there is no qualifying word to relieve us of the task of
interpretation. It is true that the use of the definite article and the
singular ("the decision") relates that term directly to the action to be
taken by the Council under the first sentence of the Article. This would
seem to point to the conclusion that "the decision" contemplated must be one
whereby the Council disposes of "any disagreement between two or more
contracting States relating to the interpretation or application" of the
Convention and its Annexes which "cannot be settled by negotiation".
However, it is not only by decisions on substance that the Council can
dispose of disagreements. Hence it is not only from such decisions that
appeal may be made -- and I do not, in this connection, find it possible to
maintain that the Rules for the Settlement of Differences can be so
construed as to restrict appealability to any greater extent than the
Convention itself. Moreover, had the drafters definitely wished to exclude
appeals on issues other than those of substance, they could easily have done
so by suitably qualifying the term "decision":
[p64] there are well-known precedents for such drafting.
This is, of course, not so say that appeal is allowable "from every order,
or any order of the Council", which, as counsel for Pakistan suggested,
would "defeat the very purpose of the Convention" (hearing of 27 June 1972).
The matter has to be viewed in the light of the repercussions which the
decision in question could have on the positions of the Parties in regard to
the case. In the present instance we are concerned with a decision on a
jurisdictional issue, and so a line has to be drawn and the question
answered as to the side of the line on which "decisions on jurisdiction"
lie. The answer is of course implicit in the crucial importance which such
decisions invariably have (as stressed in para. 18 of the Judgment). This is
borne out by the entire history of international adjudication, where these
issues are much more vital than in the municipal context.
There is, however, a more general aspect to these issues. Great caution and
restraint have been exercised by this Court and its predecessor when
ascertaining their own jurisdiction. As Judge Lauterpacht pointed out:
"Nothing should be done which creates the impression that the
[65] Court, in an excess of zeal, has assumed jurisdiction where none has
been conferred upon it." (The Development of International Law by the
International Court, 1958, p. 91.)
This restraint has had its raison d'etre in the clear tendency not to impose
more onerous obligations on States than those they have expressly assumed.
However, in regard to appeals from other fora, this very criterion imposes
limits on the Court's caution in assuming jurisdiction.
Indeed, the same reasons which underlie the necessity of interpreting
jurisdictional clauses strictly impel one to adopt an interpretation of
provisions for appeal that would lend maximum effect to the safeguards
inherent in such provisions. For, as between the "lower forum" and "the
court of appeal", there exists as it were a see-saw of jurisdictional
powers. Hence to apply a restrictive interpretation of rights of appeal --
and thus of the powers of the "court of appeal" -- would obviously entail an
extensive interpretation of the jurisdictional powers of the "court of first
instance". This would in fact imply more onerous obligations on the States
concerned: something which (as indicated above) international tribunals have
[66] continuously endeavoured to avoid. To restrict the rights of States to
seek relief from what they deem to be wrongful decisions would to some
extent, at least, defeat the very object of the institution of appeals. If
that is so in general, it applies in particular to issues of jurisdiction,
which, as indicated earlier, are in the international field comparable in
importance to issues of substance. Thus this aspect confirms the
justification for the exercise of what the Judgment describes (para. 26) as
"a certain measure of supervision by the Court" (cf. resolution of 25
September 1957 by the Institut de droit international, Annuaire 1957, pp.
476 ff.).
II
While I agree that the ICAO Council is competent to entertain the
Application and Complaint submitted to it, I wish to comment on some
procedural issues which have been raised in regard to the decision from
which an appeal has been made. India advanced a series of submissions on the
subject (Memorial of India, paras. 93-99 and 106 D). Pakistan for its part,
denied them (Counter-Memorial, para. 59).
Article 54 (c) of the Convention on International Civil Aviation provides
that: "The Council shall . . . determine its organization
[p67] and rules of procedure." Within the powers thus vested in it, the
Council approved, on 9 April 1957, the "Rules for the Settlement of
Differences". These were intended to "govern the settlement of ...
disagreements between Contracting States which may be referred to the
Council", and "the consideration of any complaint regarding an action taken
by a State party to the Transit Agreement" (Art. 1 (1) and (2)).
In the light of these provisions the contracting States have the right to
expect that the Council will faithfully follow these rules, performing as it
does, in such situations, quasi-judicial functions, for they are an integral
part of its jurisdiction. Such rules constitute one of the guarantees of the
proper decision-making of any collective body of this character and they set
a framework for its regular functioning: as such, they are enacted to be
complied with.
The records of the meeting of the Council on 29 July 1971 do indicate that
some provisions of the Rules for the Settlement of Differences were departed
from. In general, of course, not all departures from established rules
affect the validity of decisions, but there are some which may prejudice the
rights and interests
[p68] of the parties. It is therefore reasonable, if one of the parties
concerned should submit before this Court that procedural irregularities
occurred, that these submissions should attract the Court's attention. Thus
the objections raised by India are well taken.
I therefore regret that the Court has not gone into the matter and has
limited itself to giving "a ruling as to whether the Council has
jurisdiction in the case" (Judgment, para. 45). To pronounce upon any formal
deficiencies the Court may find in the decision-making of the Council, or to
draw that body's attention to them, would surely come within that
"supervision by the Court over those decisions" referred to in a passage of
the Judgment (para. 26) which I mentioned earlier and to which I fully
subscribe.
Moreover, it is to be taken into account that the Council, in view of its
limited experience on matters of procedure, and being composed of experts in
other fields than law, is no doubt in need of guidance, and it is surely
this Court which may give it. Such guidance would be of great importance for
the further conduct of this case and future cases, and in the interest of
the confidence of States entrusting it with the
[p69] resolution of disagreements arising in the field of civil aviation.
Judges PETREN, ONYEAMA, DILLARD, DE CASTRO and JIMENEZ DE ARECHAGA append
separate opinions to the Judgment of the Court.
Judge MOROZOV and Judge ad hoc NAGENDRA SINGH append dissenting opinions to
the Judgment of the Court.
(Initialled) F. A.
(Initialled) S. A.
Separate Opinion of Judge
Petrén
Separate Opinion of Judge
Onyeama
Separate Opinion of Judge
Dillard
Separate Opinion of Judge de
Castro
Separate Opinion of Judge
Jiménez de Aréchaga
Dissenting Opinion of Judge
Morozov
Dissenting Opinion of Judge
Nagendra Singh |
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