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[p.328]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court,
Having regard to Article 66 of the Rules of Court,
Having regard to the Application by Pakistan filed in the Registry of the
Court on 11 May 1973, instituting proceedings against India in respect of a
dispute concerning charges of genocide against 195 Pakistani nationals,
prisoners of war or civilian internees, in Indian custody,
Makes the following Order:
1. Having regard to the request dated 11 May 1973 and filed in the Registry
the same day, whereby the Government of Pakistan, relying on [p 329] Article
41 of the Statute and Article 66 of the Rules of Court, asks the Court to
indicate, pending the final decision in the case brought before it by the
Application of the same date, the following interim measures of protection:
"(1) That the process of repatriation of prisoners of war and civilian
internees in accordance with international law, which has already begun,
should not be interrupted by virtue of charges of genocide against a certain
number of individuals detained in India.
(2) That such individuals, as are in the custody of India and are charged
with alleged acts of genocide, should not be transferred to 'Bangla Desh'
for trial till such time as Pakistan's claim to exclusive jurisdiction and
the lack of jurisdiction of any other Government or authority in this
respect has been adjudged by the Court;"
2. Whereas the Government of India was notified by telegram the same day of
the filing of the Application and request for indication of interim measures
of protection, and of the precise measures requested, and copies of the
Application and the request were at the same time transmitted to it by air
mail;
3. Whereas, pursuant to Article 40, paragraph 3, of the Statute and Article
37, paragraph 2, of the Rules of Court, copies of the Application were
transmitted to Members of the United Nations through the Secretary-General
and to other States entitled to appear before the Court;
4. Whereas, pursuant to Article 31, paragraph 2, of the Statute, the
Government of Pakistan chose Sir Muhammad Zafrulla Khan to sit as judge ad
hoc, and he sat in the case until 2 July 1973;
5. Whereas the Governments of Pakistan and India were informed by
communications of 14 May 1973 that the Court would in due course hold public
hearings to afford the parties the opportunity of presenting their
observations on the request by Pakistan for the indication of interim
measures of protection, and the opening of such hearings was subsequently
fixed for 29 May 1973;
6. Whereas on 28 May 1973, as a result of communications received from the
Governments of Pakistan and India, the Court decided to postpone the
opening of the public hearings, and subsequently fixed 4 June 1973 as the
date for such opening;
7. Whereas by a letter dated 23 May 1973 from the Ambassador of India to the
Netherlands, received in the Registry on 24 May 1973, the Government of
India declined to consent to the jurisdiction of the Court in the case, and
claimed that without such consent the Court could not properly be seised of
the case and could not proceed with it, and that there was no legal basis
whatever for the jurisdiction of the Court in the case; and whereas in two
statements transmitted to the Court with letters [p 330] from the Ambassador
of India to the Netherlands dated 28 May and 4 June 1973 the Government of
India presented a further reasoned statement that the Court had no
jurisdiction in the case;
8. Whereas at the opening of the public hearings, which were held on 4, 5
and 26 June 1973, there were present in Court the Agent, Deputy-Agent and
counsel of the Government of Pakistan;
9. Having heard the observations on the request for interim measures on
behalf of the Government of Pakistan, and the replies on behalf of that
Government to questions put by Members of the Court, submitted by His
Excellency Mr. J. G. Kharas and Mr. Yahya Bakhtiar, Attorney-General of
Pakistan;
10. Whereas in a letter of 11 July 1973 the Agent for Pakistan informed the
Court of its expectation that negotiations will take place between Pakistan
and India in the near future in which the issues which are the subject of
its Application will be under discussion; and whereas in that letter the
Government of Pakistan asks the Court to postpone further consideration of
its request for interim measures in order to facilitate those negotiations;
11. Whereas in the same letter the Government of Pakistan further asks the
Court to fix time-limits for the filing of written pleadings in the case;
12. Considering that it is Pakistan which requested the Court to indicate
interim measures of protection on the basis that the circumstances of the
case so required;
13. Whereas it is of the essence of a request for interim measures of
protection that it asks for a decision by the Court as a matter of urgency,
as it is expressly recognized by the Court in Article 66, paragraph 2, of
the Rules of Court;
14. Whereas the fact that the Government of Pakistan now asks the Court to
postpone further consideration of its request for the indication of interim
measures signifies that the Court no longer has before it a request for
interim measures which is to be treated as a matter of urgency; and whereas
the Court is not therefore called upon to pronounce upon the said request;
15. Having regard to Article 66, paragraph 1, of the Rules of Court which
provides that a request for the indication of interim measures of protection
may be made at any time during the proceedings in the case in connection
with which it is made;
16. Whereas in the circumstances of the present case the Court must first of
all satisfy itself that it has jurisdiction to entertain the dispute;
Accordingly,
The Court,
by 8 votes to 4,
Decides that the written proceedings shall first be addressed to the
question of the jurisdiction of the Court to entertain the dispute; [p 331]
Fixes as follows the time-limits for the written proceedings:
1 October 1973 for the Memorial of the Government of Pakistan.
15 December 1973 for the Counter-Memorial of the Government of India:
And reserves the subsequent procedure for further decision.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirteenth day of July one thousand nine
hundred and seventy-three, in four copies one of which will be placed in the
archives of the Court, and the others. -.respectively to the Government of
Pakistan, to the Government of India, and to the Secretary-General of the
United Nations for transmission to the Security Council.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
Judge Nagendra Singh appends a separate opinion to the Order of the Court.
Judge Petren appends a dissenting opinion to the Order of the Court.
(Initialled) M.I.,
(Initialled) S.A.
[p332]
Separate opinion of judge Nagendra Singh
While voting with the majority for what in legal effect now constitutes a
clear withdrawal by the Applicant of its request for interim measures sought
under Article 41 of the Statute of the Court, I have all along felt that in
this case, irrespective of the competence of the Court in relation to the
Applicant (Pakistan) and the absent non-applicant (India), which aspect will
be examined in the second phase, it is patently obvious that the Court has
no jurisdiction in relation to Bangla-Desh.
It is well known that Bangla-Desh is a sovereign State recognized by over 90
countries and now a regular member of the several specialized agencies of
the United Nations and a distinct member of the international community. The
fact remains, however, that without its consent there can be no exercise by
the Court of jurisdiction in relation to its rights.
Moreover, from the viewpoint of the Court's adjudication, whether ad interim
or final, what is vital is the positive pleading of Pakistan that
Bangla-Desh and not India is contesting Pakistan's claim to exclusive
jurisdiction for the holding of trials of 195 prisoners of war. This is
manifest from paragraph 4 of Pakistan's Application, wherein it is stated
that "The Government of Pakistan cannot agree to the trial of its prisoners
of war by 'Bangla Desh' since Pakistan has exclusive jurisdiction over its
nationals in respect of any acts of genocide allegedly committed in
Pakistani territory".
It is indeed an elementary and basic principle of judicial propriety which
governs the exercise of the judicial function, particularly in inter-State
disputes, that no court of law can adjudicate on the rights and
responsibilities of a third State (a) without giving that State a hearing,
and (b) without obtaining its clear consent.
Furthermore, it appears to me that the Court has not been in proper seisin
of the case from the very beginning and lacks all prima facie competence.
If that be so, it is regrettable to have instituted a further phase by
fixing time-limits for the Parties to plead on the question of
jurisdic-tion.
However, it is true that the Applicant, by its letter of 11 July 1973,
requested the Court to agree to postpone the entire case as the Parties were
about to enter into negotiations for an amicable settlement of the dispute.
As already stated, a request for postponement in relation to interim
measures can only have the legal effect of withdrawal, which must take
priority over all other considerations, particularly when India had [p 333]
declined to be present and has, therefore, no say in regard to the request
of Pakistan. It is in these circumstances that I voted with the majority for
the decision of the Court. While doing so, however, I do hold that the
Court, when agreeing to postponement of further consideration of the request
for interim measures and finding that it is not therefore called upon to
pronounce thereon, should have declined to deal any further with the case,
as judicial propriety does not permit the Court to advance any further
therein.
(Signed) Nagendra Singh.
[p 334]
Dissenting opinion of judge Petren
[Translation]
Having voted against the Order, I append this dissenting opinion.
In my view, the first question to which the Court should have attended was
that of its own jurisdiction on the merits of the case, a question to which
the Order does not advert until the last paragraph of the recitals.
In all cases, the Court obviously has a duty to satisfy itself as soon as
possible that it has jurisdiction. The fact that the Indian Government
denies the jurisdiction of the Court in the present case can only render the
examination of that question even more urgent. There is no indication that
the possibility of that Government's recognizing the Court's jurisdiction
in the present case has been envisaged in the negotiations which, as
mentioned in the letter dated 11 July 1973 from the Agent for Pakistan, are
being carried on between the Governments of India and Pakistan. The fact
that the Government of Pakistan has requested the indication of provisional
measures does nothing to dispense the Court from the duty of settling the
question of its jurisdiction even in the initial stage of the proceedings,
if that should prove to be possible. In the absence of the Government of
India, it is, in accordance with Article 53 of the Statute, incumbent upon
the Court also to take into consideration such elements as militate in
favour of the position adopted by that Government.
The arguments of the Government of Pakistan with regard to the jurisdiction
of the Court were set forth at public hearings on 4, 5 and 26 June 1973. The
reasons why the Government of India denies that jurisdiction have been
presented in statements transmitted to the Court by letters from the
Ambassador of India dated 23 and 28 May and 4 June 1973. The question of
jurisdiction, as presented to the Court by the two Governments, does not
appear to be enmeshed with the merits of the case. There is therefore reason
to ask whether the Court, having taken cognizance of the arguments put
forward by the two Governments, could not and should not have decided the
question of its jurisdiction at the present early stage of the proceedings,
with the aid of its own lights, instead of deferring consideration of this
preliminary question to a new phase of the case by first inviting the two
Governments to engage in written proceedings extending until 15 December
1973 and destined to be followed by further oral proceedings.
For the purpose of its decision in that connection, the Court, in my view,
had to take the following elements into consideration.
The arguments of the two Governments on the subject of the Court's
jurisdiction concerned inter alia the construction of the Convention of [p
335] 9 December 1948 on the Prevention and Punishment of the Crime of
Genocide, and in particular its jurisdictional clauses, as also the question
whether Pakistan is a party to the General Act of 26 September 1928 for the
Pacific Settlement of International Disputes and, if so, whether the
jurisdiction of the Court could be founded upon that instrument. I am of the
opinion that Article 63 of the Statute of the Court required the questions
thus raised to be notified without delay to the States parties to the two
international instruments in question. Those notifications, however, were
not made, and the majority even opposed considering the question of
notification in respect of the Genocide Convention before the Court had
pronounced on the request of the Government of Pakistan for the indication
of interim measures of protection. Given the mandatory character of the
notifications provided for in Article 63 of the Statute, I do not believe
that the Court may settle the question of its jurisdiction without having
complied with the provisions of that Article of the Statute. In that,
therefore, there exists a first obstacle to the Court's pronouncing upon its
jurisdiction at the present stage of the proceedings.
Nor is it possible to pass over in silence the fact that the judge ad hoc
chosen by the Government of Pakistan has ceased to sit in the case since 2
July 1973. On what questions the Court may deliberate in the absence of the
judge ad hoc appointed by a Government to participate in the decision of a
case is a question which, in my view, deserves the closest attention. In
particular, I have grave doubts as to the possibility of the Court's
settling the question of its jurisdiction in the absence of a judge ad hoc.
In the present instance, it is true that this absence could not have
prevented the Court from deferring consideration of the case in conformity
with the request of the Government of Pakistan, but to my mind it would have
constituted a further reason for considering that now was not the time to
settle the question of jurisdiction.
That having been said, I am by no means convinced that it was necessary,
for the information of the Court, to open the door to further pleadings on
its jurisdiction as wide as the present Order has done. Furthermore, the
time-limits fixed are such, in my view, as to justify some apprehension that
the present case may exemplify the drawbacks that arise when different
manners of settling an international dispute are confused. The attitudes of
the two Governments in question give me the impression that it is much
rather the intervention of the mediator than that of the international judge
which would be more likely to help them resolve the series of disagreements
between them. The judicial role of the Court does not, I feel, connote any
consideration of problems from that angle.
Even so, as it is in my view necessary to allow States parties to the
Genocide Convention and the General Act of 1928—provided they are notified
of the existence of the above-mentioned questions—sufficient time to enable
them to request to intervene in the proceedings, I was in a position to
assent to the operative paragraph of the Order, the terms of [p 336] which
concern solely the organization of the further proceedings on the question
of the Court's jurisdiction.
If I have nevertheless voted against the Order, it is essentially on account
of paragraphs 13 and 14. According to the letter of its Agent dated 11 July
1973, the Government of Pakistan has found it appropriate to ask the Court
to postpone further consideration of its request for the indication of
interim measures in order to facilitate negotiations; but there was nothing
in that letter to indicate that the Government of Pakistan wished to
withdraw its request for the indication of interim measures. Now in
paragraph 13 of the Order, the Court expresses the view that it is of the
essence of a request for interim measures of protection that it asks for a
decision by the Court as a matter of urgency. It is consequently stated in
paragraph 14 that, by the effect of the desire expressed by the Government
of Pakistan that the further consideration of the request be deferred, the
Court no longer has such a request before it. As the Government of Pakistan
has not withdrawn its request for the indication of interim measures of
protection, I am unable to assent to that conclusion.
(Signed) Sture Petren. |
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